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https://www.courtlistener.com/api/rest/v3/opinions/4143326/

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01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142774/

.. ‘266 .. . . . ..a OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN  tt stay be no11 to ob6~rve tfaat tho t*ti *per- petual auucaor~on’io not $*niTrall~ sonstrusb to lqplp corgcrate immortaUty, but ro,#or a eoa0lnufty 0P Witt6tic0, lrres~at1*8 of %&et or Ire ooapca*rvO nwberzr , lilaited in, Uure0lea t5 thr period etetwl In it8 cbartar or thr cot l uthorlxlng the &mmtirig theroot. . . *. . , R . ‘i&e1iFe of the oorpcmsbion18 now ~:*.a- em&f;reU by ifb. ebartor or by th8 @?mri'd kvir on the rubjeot. wm,ze ~1clhrcoramud by spaef,al aat is allurt OR t40 ~ubstLon,or tam articlesb? inaorp,oratfcc fix a pariod greeterOfzn t!i6t allowed, then the antter 20 ae$sraUt~ bf nforsaue to S4e ganeradlew on tha eubjrat,ra4 t&en tbla 18 doab It 18 t&6 gararral lew ~p6ror4~r 4t the tlms t44 45haner k  was granted that e;overne. Tha llre or B tt~rp~ra- tiorr a0413 i-.0t a4p4fia the lir0 at it* fn sny w4y OR lnaorporetors, but the duration of it8 lxl*t*noo taut be fixed In aoiob uay. ~tem*l life is not an attribute or oorpor4to 4xi(lt*n4e. Tk4 expres8ion 'perpstual eu4oe48lon~ lmpli48 nothing mere than * oontlnuanos of auvoez+rion during the exlatoaoe of t-ho oorpvratlon. In the 4khm44 of ovm orpr408 lta tutoth4 , oorporationwill oontinue until 4iUmr its ohartorexpiresor ita 81884lution $8 daaromi by the oourtoia a properprooowUn&. The iaat that a aborter provide8 for parpetual ouooor8io~ doer not imgly a &nnt of parpeDua1 *ri*tmioo. All doubt8 in oorpento ohartara ar8 ro*oltad ag8lort - in- to&Ion to grant perpstual exlotonor. 8uah a pro- rirlon 18 intendul a~rely to &a a aorporat&on ooatlnuous auoaessioa 80 long a8 it osntbu4* in 4xi8t0504, and not to 64rin4 it8 duration. . .* fn tiov or ttm feregebg aUtboritl88 and tha l8ovo &tatod raot8, f@u are ~mspootfUly’adrl8ul that 16 10 the *pinleaof tiiie~Dqmrtmmt that the chartor ai the Galv48bon CSty Oompany bar not ,ixpircrd by virtue of’ htldla 1320, V~non’a haotatmd Civil statutsr. It ie our further opinion that the oorpos*tion wPl1 continua to erlat until it* di88olutloa 98 doored by the ooort8 in a proper prooosding, Dy~8urawdor of it8 oh8rtier. or by di8eolutiea by say mothed pmria4a by law. Tru8ttng;~tihattha roryloily fully anaw4ra $our inquiry, w4 lr 4 Tows very trgly AP -$Jl JUL 9; 941 kTTs;rnW G3rmus.l 0) TEXAS .k ti *U&h FIRST ASSiC.AFT ATTO~~jxy c;E~~JJJ&~L bl411 ‘%jllliamo dka*latant Ati18

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125050/

KEN PAXTON ATTORNEY GENERAL OF TEXAS April 29, 2015 The Honorable Bob Wortham Opinion No. KP-0014 Jefferson County Criminal District Attorney Jefferson County Courthouse Re: Whether a school board trustee, whose 1085 Pearl Street, 3rd Floor powers have been suspended by the Texas Beaumont, Texas 77701 Education Commissioner under chapter 39 of the Education Code, may run and serve as a city council member for a city located within the school district's boundaries (RQ-0007-KP) Dear Mr. Wortham: You ask whether a current elected school board trustee whose powers have been suspended due to the installation of a board of managers under chapter 39 of the Education Code may run for or serve in a city council position for a city located within the boundaries of the school district. 1 You inform us that in 2014 the Texas Education Commissioner installed a seven-member board of managers over the Beaumont Independent School District. Request Letter at 1; see TEX. EDUC. CODE ANN. § 39.102(a)(9) (West 2012) (authorizing the Texas Education Commissioner to appoint a board of managers). Such an appointment suspends the powers of the elected board of trustees and grants to the board of managers "all of the powers and duties assigned to a board of trustees of a school district by law, rule or regulation." TEX. EDUC. CODE ANN. § 39.112(a)-(b) (West 2012). In the event the Texas Education Commissioner dissolves or terminates the appointment of the board of managers, the suspended board of trustees would resume their positions. See id. § 39.112(b) (suspending the board of trustee's powers "for the period of the appointment"). You. state that in early 2015, the suspended president of the trustees ("board president") filed to run for a position on the Beaumont City Council in the May 2015 election. See Request Letter at 1. You acknowledge that the positions of school district trustee and city council member are incompatible and may not be held simultaneously by the same person. See id. at 2; see also Tex. Att'y Gen. Op. No. JM-634 (1987) at 3 (concluding that the offices of school board trustee and city council member of a town located in boundaries of the school district are incompatible). You note that the board of managers does not intend to call an election until 2017, and you do not believe it likely that they would appoint any replacement trustee. See Request Letter at 2 n.4, 3. 1 See Letter from Honorable Bob Wortham, Jefferson Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 29, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Bob Wortham - Page 2 (KP-0014) Citing the constitutional holdover provision in article XVI, section 17, you suggest that the board president is unable to voluntarily resign because she would be required to holdover beyond the May 2015 election due to the lack of any appointed or elected successor. Id. at 2-3 ("It would appear that [she] finds herself in the rather unique position of being unable to voluntarily resign until her successor is either appointed or elected."). You therefore question the legality of the board president being a candidate for and serving as a city council member. See id. at 3. We begin our analysis of your question with article XVI, section 17, of the Texas Constitution, which provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. It is a mandatory provision, the purpose of which is "to prevent public convenience from suffering because of a vacancy in the office." Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied) (quotation marks omitted); see also Tex. Att'y Gen. Op. No. M-659 (1970) at 2-3 (noting that resignation of an officer is not deemed fully effective until the appointment and qualification of his or her successor). Under article XVI, section 17, a resigning officer typically holds over until his successor qualifies for office and possesses all the authority to act in his official capacity. See Tex. Att'y Gen. Op. No. GA-0550 (2007) at 4. Yet, despite the mandatory nature of the holdover provision, Texas courts have consistently determined that the holdover provision does not apply in some circumstances to force an officer's continued service. In State ex rel. Peden v. Valentine, which involved the holding of two incompatible offices, the court of appeals acknowledged that "the acceptance of, and qualification for, the second [incompatible] office creates a vacancy in the first." State ex rel. Peden v. Valentine, 198 S.W. 1006, 1007 (Tex. Civ. App.-Fort Worth 1917, writ refd); see also Biencourt v. Parker, 27 Tex. 558, 562 (1864) (determining that being appointed to and accepting anew office incompatible with the original one causes an absolute termination of the original office, and "leaves no shadow of title to the possessor"). The incompatibility of the two offices in Peden resulted from the constitutional prohibition against one person holding two offices of emolument. See Peden, 198 S.W. at 1007. As between the prohibition against holding two offices and the requirement that an officer hold over in a position until his or her successor is qualified, the Peden court determined that "when the Constitution forbids the holding of both offices, it must be held that [article XVI, section 17], requiring continued performance of official duty, is without application." Id. The Texas Supreme Court subsequently reached the same conclusion in a case involving the same two constitutional provisions. See Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. 1935). The court in Pruitt recognized that when an officer accepts and qualifies for a second office, the officer vacates the first office as a matter of law and "[i]n such circumstances the constitutional provision that all officers shall continue to perform the duties of their offices until a successor has been qualified does not apply." Id. at 1007 (quotation marks omitted). Immediate vacation of office without holding over also occurs when the incompatibility of office derives not from the constitution but from the common law. See Thomas v. Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927) Gudgm't adopted) (determining that offices of school trustee and city alderman are incompatible and that an officer vacated the office of school trustee immediately upon qualifying for the office of alderman). This office has noted on several occasions that "an officer ... may divest himself of an office before The Honorable Bob Wortham - Page 3 (KP-0014) his successor has qualified by himself qualifying for and entering upon the duties of another office which he cannot lawfully hold at the same time." Tex. Att'y Gen. Op. Nos. JM-589 (1986) at 2, M-627 (1970) at 4; see also GA-0015 (2003) at 5 ("The first office is vacant by operation of law as of the moment the officeholder qualifies for the second office."). Thus, in the event the board president wins the city council position, the moment she qualifies for that position, she vacates her trustee position and does not holdover despite article XVI, section 17. And in this instance, such a result does not impinge upon the purpose of the holdover provision because the board of managers, not the board of trustees, is in control of the operations of the school board. 2 Moreover, the incompatibility of the two offices does not preclude the board president from running for city council. Texas courts have consistently said that eligibility in connection with qualifications for office refers to the "qualification to hold office, rather than the qualification to be elected to office." Rose v. White, 536 S.W.2d 395, 397 (Tex. Civ. App.-Dallas 1976, orig. proceeding). In other words, where any disqualification is of such a nature that its continuation or termination is not within the control of the person seeking the office, a person must be qualified to hold office at "the time when he assumes the duties of the office." Kothmann v. Daniels, 397 S.W.2d 940, 942 (Tex. Civ. App.-San Antonio 1965, orig. proceeding). Here, in the event the board president wins her city council election, she vacates her first office of trustee immediately upon qualifying for the office of city council by operation of law such that the termination of the disqualification is not within her control. Thus, she is qualified at the time that she assumes the duties of office. Under Rose and Kothmann, the incompatibility of the two offices does not make her ineligible to run for city council. For these reasons, a school board trustee whose powers have been suspended by the Texas Education Commissioner under chapter 39 of the Education Code may run for and serve as a city council member for a city located within the school district's boundaries. 2 Though you indicate that the board of managers does not intend to appoint a replacement, the Education Code gives it full authority to do so. See TEX. EDUC. CODE ANN.§§ 39.112(a) (West 2012) (providing that a board of managers may exercise all of the powers and duties assigned to a board of trustees by law, rule, or regulation), 11.060(a) (authorizing a board of trustees of an independent school district to fill a vacancy on the board by appointment until the next election). The Honorable Bob Wortham - Page 4 (KP-0014) SUMMARY A school board trustee whose powers have been suspended by the Texas Education Commissioner under chapter 39 of the Education Code may run for and serve as a city council member for a city located within the school district's boundaries. 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/4155438/

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 240 CA 16-00137 PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, DEJOSEPH, AND SCUDDER, JJ. IN THE MATTER OF THE APPLICATION FOR DISCHARGE OF LEROY PIERCE, CONSECUTIVE NO. 265463, FROM CENTRAL NEW YORK PSYCHIATRIC CENTER PURSUANT TO MENTAL HYGIENE LAW SECTION 10.09, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER STATE OF NEW YORK, NEW YORK STATE OFFICE OF MENTAL HEALTH, AND NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS-RESPONDENTS. EMMETT J. CREAHAN, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (MICHAEL F. HIGGINS OF COUNSEL), FOR PETITIONER-APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENTS-RESPONDENTS. Appeal from an order of the Supreme Court, Oneida County (Joseph E. Fahey, A.J.), entered December 22, 2015 in a proceeding pursuant to Mental Hygiene Law article 10. The order, among other things, continued petitioner’s commitment to a secure treatment facility. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this proceeding pursuant to Mental Hygiene Law article 10, petitioner appeals from an order, entered after an annual review hearing (§ 10.09 [d]), determining that he is a dangerous sex offender requiring confinement under section 10.03 (e) and directing that he continue to be confined to a secure treatment facility (see § 10.09 [h]). We affirm. Petitioner contends that the evidence is legally insufficient to support the finding that he is a dangerous sex offender requiring confinement within the meaning of the statute because the evidence presented by respondents failed to establish that he has such an inability to control his behavior that he was likely to be a danger to others and to commit sex offenses if not confined (see Mental Hygiene Law § 10.03 [e]). We reject that contention. Here, respondents’ expert conducted a psychiatric examination in anticipation of petitioner’s annual review hearing and issued a report pursuant to Mental Hygiene Law § 10.09 (b) that, among other things, documented -2- 240 CA 16-00137 petitioner’s history of criminal sexual conduct against female teenagers and children; indicated that petitioner suffered from conditions including pedophilic disorder; noted that petitioner minimized and avoided his deviant sexual attraction to children in favor of explaining that his offenses resulted from his seeking emotional gratification; and reviewed the actuarial tests and dynamic factors that resulted in an assessment of petitioner’s recidivism risk as “moderate-high.” Petitioner’s independent psychiatric examiner initially agreed with respondents’ expert that petitioner was a dangerous sex offender requiring confinement, and the proceeding was stayed for a significant period of time until petitioner sought a hearing after his examiner issued an addendum indicating that, upon review of petitioner’s most recent treatment records, he no longer required confinement. Respondents’ expert explained at the hearing conducted two years after she issued her initial report that, although petitioner had declined to be re-interviewed by her, she updated her information through a conversation with petitioner’s treatment providers and a review of petitioner’s service plans and progress notes covering the intervening period. Respondents’ expert concluded that, even after the additional treatment while confined, petitioner remained unable to control his sex-offending behaviors based upon, among other things, his history of sex crimes and violations when released to the community; his chronic pedophilic disorder that he had not adequately addressed in treatment through comprehensive discussion of all of his offenses; his difficulty identifying why he gravitated to children for sexual gratification as opposed to adults; his display of cognitive distortions in referring to his offenses; and his failure to address and understand all components of his offense cycle given his lack of focus on his fantasies and sexual arousal to children (see Matter of Wright v State of New York, 134 AD3d 1483, 1486-1487; see generally Matter of State of New York v Walter W., 94 AD3d 1177, 1179, lv denied 19 NY3d 810). With respect to petitioner’s offense cycle, respondents’ expert was particularly concerned that petitioner had focused exclusively on his teenage victims and that his intervention strategies were inapplicable to his child victims, especially those who were strangers to him. As petitioner correctly notes, respondents’ expert acknowledged that a recent service plan by petitioner’s treatment providers indicated that petitioner’s goal of addressing his sexual deviance and emotional identification had been achieved and discontinued. Respondents’ expert further explained, however, that the progress notes in the service plan indicated that petitioner had gained insight only with respect to his sexual misconduct against teenagers and he had not adequately addressed his sexual deviance against children, including all of his younger victims, and the service plan was subsequently amended to reinstate petitioner’s goal of adequately addressing his sexual deviance. Contrary to petitioner’s further contention, additional factors including his recidivism risk, with which his own examiner agreed even after accounting for petitioner’s increase in age, indicated that -3- 240 CA 16-00137 petitioner would not be able to comply with the rules of the strict and intensive supervision and treatment program (see Matter of State of New York v Robert F., 25 NY3d 448, 454-455; Matter of State of New York v Breeden, 140 AD3d 1649, 1650). Thus, upon our review of the record, we conclude that respondents established by the requisite clear and convincing evidence that petitioner “suffer[s] from a mental abnormality involving such a strong predisposition to commit sex offenses, and such an inability to control behavior, that [he] is likely to be a danger to others and to commit sex offenses if not confined to a secure treatment facility” (Mental Hygiene Law § 10.03 [e]; see Robert F., 25 NY3d at 454-455; Matter of Billinger v State of New York, 137 AD3d 1757, 1758, lv denied 27 NY3d 911). Petitioner further contends that the determination is against the weight of the evidence because respondents’ expert interfered with the treatment providers’ assessment of petitioner’s progress, and her opinion was inconsistent with petitioner’s treatment notes and the opinion of petitioner’s expert that he did not require confinement. We reject that contention. Respondents’ expert explained that she was concerned with the recent change in petitioner’s service plan discontinuing his goal of addressing his criminogenic need of sexual deviance, and thus chose to conference with petitioner’s treatment providers to determine the reason for the change, particularly because petitioner had not consented to a re-interview with her, and the clinical notes indicated that petitioner had been focused on his teenage victims rather than incorporating each of his child victims into his treatment. Respondents’ expert also explained that she had no ability to request an updated service plan and that the treatment providers had, upon additional review, determined prior to the conference that they should not have discontinued the goal addressing sexual deviance. The evidence established that the treatment providers subsequently issued an amended service plan indicating that petitioner needed to continue exploring his offense history in order to identify his attraction to younger children and the offending patterns associated with each victim, and to develop substantial interventions that would ensure his safe presence in the community. The court was in the best position to evaluate the weight and credibility of this evidence and the conflicting expert testimony at the hearing and, upon review of the record as a whole and in light of her explanations, we see no reason to disturb the court’s decision to credit the testimony of respondents’ expert that petitioner remains a dangerous sex offender requiring confinement (see Matter of State of New York v Parrott, 125 AD3d 1438, 1439, lv denied 25 NY3d 911; see also Matter of Sincere KK. v State of New York, 129 AD3d 1254, 1255, lv denied 26 NY3d 906; Matter of State of New York v Barry W., 114 -4- 240 CA 16-00137 AD3d 1093, 1095). 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/4289033/

J-S35043-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FEDERAL NATIONAL MORTGAGE : IN THE SUPERIOR COURT OF ASSOCIATION : PENNSYLVANIA : : v. : : : LEROY E. GLICK AND SAVILLE S. : GLICK : No. 1574 MDA 2017 : Appellants : Appeal from the Order Entered September 27, 2017 In the Court of Common Pleas of Lancaster County Civil Division at No(s): 15-CV-07670 BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J. MEMORANDUM BY MURRAY, J.: FILED JUNE 27, 2018 Leroy and Saville Glick, husband and wife (Appellants), appeal pro se from the order granting summary judgment in ejectment in favor of Federal National Mortgage Association (Fannie Mae). We affirm. The facts underlying this appeal are as follows: Nationstar Mortgage, LLC (Nationstar), predecessor in interest to Fannie Mae, commenced a foreclosure proceeding against Appellants, its mortgagors, after Appellants defaulted on a residential mortgage (the Property). The trial court granted summary judgment in mortgage foreclosure in favor of Nationstar, and Appellants filed a notice of appeal. This Court dismissed Appellants’ appeal and our Supreme Court denied Appellants’ petition for allowance of appeal. Nationstar Mortgage, LLC v. Glick, 1530 MDA 2013 (Pa. Super. June 27, J-S35043-18 2014) (unpublished memorandum) (dismissing appeal for Appellants’ failure to comply with Pa.R.A.P. 1925(b)), appeal denied, 104 A.3d. 5 (Pa. 2014). On July 29, 2015, Nationstar purchased the Property at sheriff’s sale, and then assigned its interest to Fannie Mae. The sheriff’s deed was recorded on August 19, 2015. Because Appellants did not vacate the Property, Fannie Mae filed a complaint in ejectment on September 4, 2015. On August 3, 2017, following the close of pleadings, Fannie Mae filed a motion for summary judgment in ejectment, which the trial court granted on September 27, 2017. Appellants filed a timely pro se notice of appeal. On October 18, 2017, the trial court entered a Pa.R.A.P. 1925 order directing Appellants to file a concise statement of errors complained of on appeal. Appellants filed a pro se Rule 1925(b) statement and the trial court issued its opinion on November 28, 2017. Appellants present seven issues for our review which we reproduce verbatim: POINT I. WHETHER ANY ASSIGNMENT OF MORTGAGE IN INSOLATION IS NULL AND VOID OF LAW, AB INITIO, THE FRAUD IN FACTUM, IN WHICH THE SHERIFF’S DEED WAS ISSUED? POINT II. WHETHER THE LANCASTER COUNTY COURT OF COMMON PLEAS IS A KANGAROO COURT, OR A SHAM COURT OR A MOCK COURT AND AN INCOMPETENT COURT/TRIBUNAL SITTING WITHIN OR UNDER A MILITARY JURISDICTION, AS EVIDENCED BY THE LAW OF THE FLAG DOCTRINE? POINT III. -2- J-S35043-18 WHETHER THE LANCASTER COUNTY COURT OF COMMON PLEAS IS A CORAM NON JUDICE? POINT IV. WHETHER THE SUMMARY JUDGMENT IS A “BRUTUM FULMEN” JUDGMENT AND/OR A VOID JUDGMENT OR A JUDGMENT BASED AND PREMISED UPON A FRAUD? POINT V. WHETHER A COMPLAINT BASED SOLELY UPON INADMISSIBLE HEARSAY EVIDENCE/DOCUMENTARY EVIDENCE AND FRAUD IN FACTUM, AB INITIO; SPECIFICALLY, THE TWO (2) ASSIGNMENTS OF MORTGAGE IN ISOLATION, IN WHICH, BOTH ARE RELEVANT, MATERIAL, AND ADMISSIBLE EVIDENCE IN WHICH ARE DEEMED NULL AND VOID, AB INITIO, AS SUBSTANTIAL EVIDENCE TO OBTAIN A FAVORABLE SUMMARY JUDGMENT IF FAVOR OF THE COMPLAINANT, AFTER THE ALLEGATIONS WERE DENIED? POINT VI. WHETHER THE FACTS AND THE LAW OF THIS CASE WITHOUT ANY SUBSTANTIAL EVIDENCE IN SUPPORT THEREOF, AND BASED SOLELY ON THE PLEADINGS WITHOUT MORE, CAN PROVIDE SUFFICIENT GROUNDS TO OBTAIN A BONA FIDE AND VALID SUMMARY JUDGMENT? POINT VII. WHETHER THE LANCASTER COUNTY COURT OF COMMON PLEAS ACTED IN A MANNER CONSISTENT WITH CIVILIAN DUE PROCESS OF LAW, BASED UPON SUFFICIENT EVIDENCE TO SUPPORT AN UNSUBSTANTIATED CLAIM IN A WRONGFUL EJECTMENT CASE PREMISED UPOM A FRAUD IN FACTUM, AB INITIO, IN REGARDS TO THE UNDERLYING RESIDENTIAL MORTGAGE FORECLOSURE CASE IN WHICH SUMMARY JUDGMENT WAS GRANTED TO NATIONSTAR MORTGAGE, LLC? Appellants’ Brief at viii-x. Our standard of review of a challenge to the grant of summary judgment is well-settled: -3- J-S35043-18 [We] may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In evaluating the trial court’s decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) (internal citations omitted). The trial court’s order granting summary judgment arises from Fannie Mae’s complaint in ejectment. Ejectment is a possessory action between “a plaintiff who does not possess the land but has the right to possess it [and] a defendant who has actual possession.” Wells Fargo Bank, N.A. v. Long, 934 A.2d 76, 78-79 (Pa. Super. 2007) (internal citation omitted). In order to prevail on an ejectment action, a plaintiff must demonstrate (1) he is out of possession of the property, and (2) he has a present legal right to immediately possess the property when the action is commenced. Id. at 79; Siskos v. Britz, 790 A.2d 1000, 1006-07 (Pa. 2002). Further: [We] note that an attack on a sheriff’s sale usually cannot be made in a collateral proceeding. An ejectment action is a proceeding collateral to that under which the land was sold. . . . [I]n an ejectment action it may be alleged that the judgment is void. A -4- J-S35043-18 void decree can be attacked at any time. Where a judgment is void, the sheriff’s sale which follows is a nullity. A judgment which is void cannot support an ejectment action and may be asserted as a defense in the ejectment proceeding. Dime Sav. Bank, FSB v. Greene, 813 A.2d 893, 895 (Pa. Super. 2002) (internal citations omitted). Instantly, Appellants’ argument consists of rambling, broad assertions, many of which are nonsensical, and citations to irrelevant legal authorities.1 In sum, Appellants fail to present a cogent legal argument on appeal. Accordingly, we find waiver. See Pa.R.A.P. 2101, 2111, 2119. See also Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (appellate arguments which are not appropriately developed, or fail to adhere to the Rules of Appellate Procedure, are waived); Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super 1996) (pro se status does not relieve an appellant of his duty to properly raise and develop appealable claims, and this Court will not act as appellant’s counsel). We additionally recognize, however, that even in the absence of waiver, the record reveals no error by the trial court. See Trial Court Opinion, ____________________________________________ 1 For example, in arguing that the Lancaster Court of Common Pleas is a “kangaroo court” without jurisdiction, Appellants rely upon maritime law: A shipowner who sends his vessel into a foreign port gives notice by his flag to all who enter into contracts with the master that he intends the law of that flag to regulate such contracts, and that they must either submit to its operation or not contract with him. [Rushtrat v. People], 185 Ill. 133, 57 N.E. 41, 49 L.R.A. 181. Appellants’ Brief at 5 (some citations omitted). -5- J-S35043-18 11/28/17, at 3 (parsing Appellants’ claims into two cognizable issues: (1) whether there was sufficient evidence to support summary judgment, and (2) whether there are genuine issues of material fact). The trial court explained: The record in the present case establishes that [Fannie Mae] has the right to immediate possession of the subject premises by virtue of the sheriff’s deed recorded on August 19, 2015. The record also establishes that [Appellants] have remained in possession of the property. [Appellants] have offered no evidence and have cited to none in the record to suggest that they have title to the property superior to that of [Fannie Mae]. There are no genuine issues of material fact which would preclude entry of summary judgment in [Fannie Mae’s] favor. Id. at 4. Our review of the certified record supports the trial court’s entry of summary judgment in favor of Fannie Mae. The record supports Fannie Mae’s claim for ejectment, and Appellants do not dispute that they maintained possession of the Property when the complaint was filed or that the sheriff’s deed was granted in Fannie Mae’s favor. See Siskos, 790 A.2d at 1006. Instead, Appellants generally allege fraud in their challenge the validity of the underlying sheriff’s sale. See, e.g., Appellants’ Brief at 5 (“The bogus, fabricated and fraudulent Assignment of Mortgage . . . is null and void of law.”). Again, Appellants offer no meaningful discussion or pertinent authorities to support their claim of trial court error. Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009) (It is an appellant’s obligation to sufficiently develop arguments in his brief by applying the relevant law to the facts of the case, persuade this Court that there were errors below, and convince us relief is due because of those errors.). -6- J-S35043-18 Accordingly, we affirm the trial court’s order granting summary judgment. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/27/2018 -7-

01-03-2023

06-27-2018

https://www.courtlistener.com/api/rest/v3/opinions/4125051/

KEN PAXTON ATTORNEY GENERAL OF TEXAS March 31, 2015 The Honorable Robert H. Trapp Opinion No. KP-0013 San Jacinto County District Attorney 1 State Highway 150, Room 21 Re: Commencement of term of office of a Coldspring, Texas 77331-0403 person elected sheriff as a successor to an individual who was appointed to fill a vacancy in that office (RQ-1227-GA) Dear Mr. Trapp: You ask about the date on which a newly-elected sheriff should take office as successor to a person who was appointed to fill a vacancy in the office. 1 You tell us that in January of 2013 the sheriff of San Jacinto County passed away less than a week into his new term. Request Letter at 1. You state that the county commissioners court then appointed a replacement to serve as sheriff until a new sheriff could be elected at the next general election in 2014. Id.; see TEX. Loe. Gov'T CODE ANN. § 87.041(a)(4), (c) (West Supp. 2014) (authorizing a commissioners court to fill vacancies in certain county offices, including that of sheriff, by appointing a person to "hold office until the next general election"). You explain that the appointed sheriff was defeated in the primary election leading up to the November 2014 general election. Request Letter at 1. The issue is whether the newly-elected sheriff was entitled to assume office in November 2014, upon receiving a certificate of election2 or on January 1, 2015, with the appointed incumbent remaining in office until that date. Id. at 1-2. The term of office of a county sheriff is four years. See TEX. CONST. art. V, § 23 (creating the office of county sheriff). The regular term of an elective county office, including that of sheriff, "begins on January 1 of the year following the general election for state and county officers." TEX. Gov'T CODE ANN. § 601.003(a) (West 2012). Likewise, the person elected to a regular term of office "assume[s] the duties of the office on, or as soon as possible after, January 1 of the year following the person's election." Id. § 601.003(b). By contrast, a person elected "to an unexpired term of an office is entitled to qualify for and assume the duties of the office immediately and shall 1 See Letter from Honorable Robert H. Trapp, San Jacinto Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at I (Oct. 14, 2014), http://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2A certificate of election is prepared for each candidate elected to an office for which the official result is determined by a canvassing of results by a local canvassing authority. TEX. ELEC. CODE ANN. § 67.016(a) (West 20 I 0). The certificate must contain certain information such as the "candidate's name," the "office to which the candidate is elected," and a "statement of election to an unexpired term," if applicable. Id.§ 67.016(c). The Honorable Robert H. Trapp - Page 2 (KP-0013) take office as soon as possible after the receipt of the certificate of election." Id. § 601.004. Thus, the answer to your question depends on whether the new sheriff of San Jacinto County was elected to begin a regular four-year term or to fill the remainder of an unexpired one. Chapter 202 of the Election Code governs elections to fill vacancies in elective state and county offices. TEX. ELEC. CODE ANN. § 202.001 (West 2010). Section 202.002 provides that "[i]f a vacancy occurs on or before the 74th day before the general election for state and county officers held in the next-to-last even-numbered year of a term of office, the remainder of the unexpired term shall be filled at the next general election for state and county officers." Id. § 202.002(a). A previous opinion of this office addressing a similar question further clarifies that "[i]f the present term of office continues into the next year, then the person who wins the general election has been elected to the unexpired term of the office." Tex. Att'y Gen. Op. No. JM-0579 (1986) at 2 (considering the statutory predecessor to sections 601.003 and 601.004 of the Government Code). As you have stated, the vacancy in the office of San Jacinto County Sheriff occurred less than a week into a four-year term that began on January 1, 2013, and will end on December 31, 2016. Request Letter at 1. Thus, after the November 2014 general election the term of office continued into the next year and beyond. Furthermore, the original vacancy occurred more than 74 days before the general election in 2014, the next-to-last even-numbered year in the current term. See TEX. ELEC. CODE ANN.§ 202.002(a) (West 2010). Therefore, the election held in 2014 for San Jacinto County Sheriff was for the remainder of an unexpired term, and pmsuant to section 601.004 of the Government Code, the newly-elected sheriff was entitled to qualify for and assume office as soon as possible after receiving the certificate of election in November 2014. 3 3 You suggest that Attorney General Opinion GA-0263 may be dispositive. See Request Letter at 2. Opinion GA-0263 involved a sheriff elected as successor to a person who had been appointed to fill a vacancy in that office. Tex. Att'y Gen. Op. No. GA-0263 (2004) at l. Because the sheriff had been elected in 2004 "for the four-year term beginning on January I, 2005," this office concluded that the sheriff was entitled to assume the office on January I, 2005, pursuant to section 601 .003 of the Government Code. Id. at l-3. Attorney General Opinion GA-0263, however, is distinguishable from the situation you describe because that opinion involved the election of a sheriff to a regular term. The Honorable Robert H. Trapp - Page 3 (KP-0013) SUMMARY The election for San Jacinto County Sheriff held in 2014 was to fill a vacancy for the remainder of an unexpired term. Therefore, pursuant to section 601.004 of the Government Code, the newly- elected sheriff was entitled to qualify for and assume office as soon as possible after receiving the certificate of election in November 2014. 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/4125052/

KEN PAXTON ATTORNEY GENERAL OF TEXAS March 31, 2015 Ms. Sheryl Tavarez Opinion No. KP-0012 Coke County Auditor 13 East 7th Street Re: Validity of a salary increase for the sheriff Robert Lee, Texas 76945 that exceeded the amount listed in the initial public notice required by section 152.013 of the Local Government Code (RQ-1226-GA) Dear Ms. Tavarez: You ask about the validity of a recent salary increase for the Coke County Sheriff. 1 You explain that after the commissioners court attempted to adopt a salary increase in the budget for the sheriff, you determined that the statutory procedure for increasing the sheriffs salary had not been followed. See Request Letter at 1. You explain that .the commissioners court subsequently attempted to correct the procedural defect and then readopted the budget with the salary increase for the sheriff. See id. at 2. You have received conflicting advice about whether the matter was properly corrected, and thus you request an opinion as to "the correct amount" of the sheriffs salary for the 2014-2015 budget year. Id. The salary-setting process for county officers involves two related sets of procedural requirements in the Local Government Code that are relevant here. First, the general budget preparation provisions of chapter 111, subchapter A, direct the county judge to "prepare a budget to cover all proposed expenditures of the county government for the succeeding fiscal year." 2 TEX. Loe. Gov'T CODE ANN. § 1 l l .003(a) (West 2008). The proposed budget is filed with the county clerk and made available for public inspection. See id. § ll l.006(a)-(b). Afterward, the "commissioners court shall hold a public hearing on the proposed budget" in the time specified by statute. Id. § 111.007(a). The commissioners court must notify the public of the date of the hearing on the proposed budget. See id. § 111.007(c). The court must additionally publish a notice of the 1See Letter from Ms. Sheryl Tavarez, Coke Cnty. Auditor, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Oct. 6, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2 Subchapter A of chapter 111 governs budget preparation in counties with a population of 225,000 or less. See TEX. Loe. Gov'T CODE ANN. § 111.001 (West 2008). The population of Coke County is 3,320. See U.S. Census Bureau, U.S. Dep't of Commerce, 2010 Census of Population, http://quickfacts.census.gov/gfd/. Ms. Sheryl Tavarez - Page 2 (KP-0012) public hearing in a newspaper of general circulation between 10 and 30 days before the hearing. See id. § 11 l.0075(a)-(b). "At the conclusion of the public hearing, the commissioners court shall take action on the proposed budget," which may include "mak[ing] any changes in the proposed budget that it considers warranted by the law and required by the interest of the taxpayers." Id. § 111.008(a)-(b) (West Supp. 2014). 3 "On final approval of the budget by the commissioners court," the budget is filed with the county clerk and, if the county maintains an Internet website, posted online. Id. § 11 l.009(a)(l)-{2). The second set of requirements, relating specifically to the setting of officers' compensation, directs the commissioners court to set the salaries of elected county and precinct officials "at a regular meeting of the court during the regular budget hearing and adoption proceedings." Id. § 152.013(a) (West 2008). Any salaries that are proposed to be increased, and the specific amount of the proposed increase, must be published in a notice in a newspaper of general circulation at least 10 days before the date of the meeting. See id. § 152.013(b). Before filing the annual budget with the county clerk, the commissioners court must additionally notify "each elected county and precinct officer of the officer's salary and personal expenses to be included in the budget." fd. § 152.013(c). A county officer who is aggrieved by the salary set by the commissioners court may request a hearing before a salary grievance committee "before the approval of the county's annual budget." Id. § 152.016(a); see also id. § 152.014 (salary grievance committee). You inform us that on August 11, 2014, the commissioners court set the salaries of all Coke County elected officials with no salary increases and that the sheriff did not request a hearing from the grievance committee. See Request Letter at 1. You state that the commissioners court subsequently held a public hearing to discuss the budget and tax rates and that "motions were made to give the Sheriff and the Deputies a 7% salary increase." Id. You tell us that at the conclusion of the hearing, the budget was adopted with the salary increases in place. See id. After the budget had already been adopted, you explain your realization that the public notice of salary increase required by subsection 152.013(b) "had not been properly given." Request Letter at 1; see also TEX. Loe. Gov'TCODEANN. § 152.013(b) (West 2008). You tell us that a notice of salary increase was then published in the newspaper for ten days. 4 Request Letter at 2. Subsequently, the commissioners court had another public hearing on September 22, 2014, at the conclusion of which you tell us the court "re-adopted" the 2014-2015 general budget with the salary increase for the sheriff in place. Id. "After final approval of the budget, the commissioners court may spend county funds only in strict compliance with the budget, except in an emergency." TEX. Loe. Gov'T CODE ANN. § 111.0lO(b) (West 2008) (emphasis added); see also id. § 111.0lO(c) (providing that an "emergency" requires "a case of grave public necessity to meet an unusual and unforeseen 3 This office has previously construed the requirement of taking "action" in subsection 111.00S(a) to include scheduling a subsequent hearing. Tex. Att'y Gen. Op. No. GA-0929 (2012) at 3 n.5. 4 Thefacts provided do not indicate whether the commissioners court provided the individual notice to officers required by subsection 152.013(c) of the Local Government Code. See TEX. Loe. Gov'T CODE ANN. § 152.013(c) (West 2008). Ms. Sheryl Tavarez - Page 3 (KP-0012) condition that could not have been included in the original budget through the use of reasonably diligent thought and attention"). "Because a commissioners court may not adopt [officers'] salaries at a meeting outside of the 'regular annual budget hearing and adoption proceedings,' a commissioners court that failed to publish proper notice has 'no legal mechanism' by which to remedy an error after the budget has been finally adopted." Tex. Att'y Gen. Op. No. GA-0162 (2004) at 2 (citation omitted) (addressing an elected county official's salary increase under similar circumstances); see also Tex. Att'y Gen. Op. Nos. JM-839 (1988) at 5-6, JM-326 (1985) at 2-3; Tex. Att'y Gen. L0-95-018, at 2 (all concluding that the plain language of subsection 152.013(a) of the Local Government Code (formerly article 3912k) restricts a county commissioners court's ability to change elected county officers' salaries to the regular, annual budget hearing and adoption proceedings only, and does not permit changes at any other time). Answering your question therefore requires a determination of when the budget was finally approved. Sections 111.008 and 111.009 of the Local Government Code outline the procedures for final approval of a budget, including filing it with the county clerk. See TEX. Loe. Gov'T CODE ANN.§§ 111.008-.009 (West Supp. 2014). Although you explain that the commissioners adopted a budget at the initial budget hearing, you do not tell us whether the commissioners court performed the other steps necessary to accomplish final approval at that time. The 2014-2015 approved budget posted on the Coke County website, however, appears to have been certified and filed with the county clerk on September 2, 2014. If the final approval of the budget occurred on September 2, 2014, then any subsequent vote to readopt the salary increase for the sheriff would be invalid because it would have occurred outside the "regular budget hearing and adoption" process. Id. § 152.013(a) (West 2008). In addition, the original salary increase was also invalid because proper notice of the increase in salary had not been given pursuant to subsection 152.013(b) of the Local Government Code. See id. § 152.013(b). Based on this information, and because the salaries of elected county officers may be set only "during the regular budget hearing and adoption proceedings," the salary of the sheriff for 2014-2015 is the amount that was in place during the prior fiscal year. 5 Id. § 152.013(a). 5You do not ask about the validity of a salary increase for the deputy sheriffs. Consequently, we do not address it. Ms. Sheryl Tavarez - Page 4 (KP-0012) SUMMARY Subsection 152.013(b) of the Local Government Code requires a commissioners court to provide public notice of a proposed budget increase to a sheriffs salary prior to setting the sheriffs salary, and failure to do so invalidates any increase. Subsection 111.0lO(b) of the Local Government Code prohibits the commissioners court from making changes to officers' salaries after the budget has been finally approved. If the Coke County Commissioners Court finally approved its budget prior to providing the required notice of the sheriffs proposed salary increase, the sheriffs salary for 2014-2015 must remain at the prior year's amount. 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/4176250/

Citation Nr: 1714089 Decision Date: 04/28/17 Archive Date: 05/05/17 DOCKET NO. 10-27 622A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to May 18, 2016, and in excess of 20 percent thereafter. 3. Entitlement to a compensable evaluation for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to December 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) August 2013 (higher ratings for peripheral neuropathy of the left lower extremity and hypertension), and May 2014 (higher rating for PTSD). The appeal was last remanded in July 2016 for further development. Since that time, in a September 2016 rating decision, the Veteran's disability rating was increased to 20 percent for left lower extremity peripheral neuropathy effective May 18, 2016. The issue has been changed above to reflect that decision. In certain circumstances, a claim for total disability rating based on individual unemployability due to service connected disabilities (TDIU rating) can be inferred as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the Veteran has stated, most recently in April 2016, that he is gainfully employed, therefore a TDIU claim has not been raised by the record. The issue of entitlement to an increased rating for diabetes mellitus, type II has been raised by the record in a October 2016 statement, but 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). FINDINGS OF FACT 1. The Veteran's PTSD most nearly approximates deficiencies in most areas of work, school, family relationships, thinking, judgment, and mood without total occupational and social impairment. 2. Prior to May 12, 2015, the Veteran's left lower extremity neuropathy was manifested by mild incomplete paralysis. 3. From May 13, 2015, the Veteran's left lower extremity neuropathy was manifested by moderate incomplete paralysis. 4. The Veteran's hypertension requires continuous medication for control without a history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for PTSD are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2016). 2. Prior to March 12, 2015, the criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Codes 8720, 8721 (2016). 3. From March 12, 2015 to May 18, 2016, the criteria for a rating in excess of 20 percent, but no higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Codes 8720, 8721 (2016). 4. From May 18, 2016, the criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. § 4.124a, Diagnostic Codes 8720, 8721 (2016). 5. The criteria for a compensable rating for hypertension are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also complied with the November 2015 and July 2016 remand orders of the Board. In response to the Board's remands, additional VA treatment records were obtained and the evidence was reconsidered in supplemental statements of the case. The Board finds substantial compliance with the directives of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board may proceed to adjudicate the appeal. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. Increased Ratings Generally Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 . After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). 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 . PTSD The Veteran seeks a higher initial evaluation in excess of 70 percent of his PTSD. His disability is currently rated under a general set of criteria applicable to psychiatric disabilities found at 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the general rating formula, a 70 percent evaluation is warranted 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. Id. A maximum 100 percent evaluation is warranted 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. Id. In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scores as one component of the overall disability picture. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). A GAF of 41 to 50 signifies 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). Id. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 . The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). As the Veteran's claim was certified for appeal before the Board prior to August 4, 2014, on remand, both the DSM-IV and DSM-V criteria are considered in the analysis below. See 38 C.F.R. § 4.125 (a); 80 Fed. Reg . 14308 (March 15, 2015) (final rule amending 38 C.F.R. § 4.125 ). The Board notes that the use of GAF scores has been abandoned in the DSM-V because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, however, DSM-IV was in use at the time many of the medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. When determining the appropriate rating to be assigned for a service-connected mental health condition, the Board will identify not only the symptoms associated with that disability but also the frequency, severity, and duration of those symptoms and how they affect the Veteran's occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A 100 percent rating is warranted if the service-connected PTSD causes total occupational and social impairment, regardless of whether the Veteran has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). After review of the evidence, the Board finds that the Veteran's PTSD does not cause total occupational and social impairment. This finding is supported by the Veteran's VA medical center treatment notes and his April 2014 and April 2016 VA examination reports. The claims file includes a world Health Organization Disability assessment dated in April 2014. The report is shown to indicate functionality on a scale of 0-100, with 0 being no disability and 100 being full disability. The Veteran was found to have a score of 50 of 100 in cognition, 40 out of 100 in self-care, 66 of 100 in getting along, 50 in work school life activities. When considering each domain, cognition, mobility, self-care, getting along, life activities (household) life activities (work/school) and participation, the Veteran was assigned a 50 out of 100. The Veteran was afforded a VA examination in April 2014. Following physical examination, the Veteran was found to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, the criteria for a 70 percent disability rating. The examiner found that the Veteran's ability to understand and follow instructions was not impaired, nor was his ability to retain instructions or sustain concentration to perform simple tasks. The Veteran's ability to sustain concentration to task persistence and pace was considered mildly impaired. The Veteran's ability to respond appropriately to coworkers, supervisors, or the general public was considered mildly impaired as was his ability to respond appropriately to changes in the work setting. The Veteran admitted to suicidal ideation but states he wouldn't act on these thoughts because of his daughter and grandchildren and he denies any current plan. A May 2014 VA medical center treatment notes include the Veteran's complaint of difficulty working due to worsening symptoms related to the suicide of his son. The Veteran reported passive thoughts throughout the week of death and dying but denied current suicidal or homicidal ideations, intent or plans. It was noted that the Veteran was sobbing throughout his visit when talking about constant intrusive thoughts. Mental status examination noted that the Veteran was appropriately dressed and groomed with normal speech and logical thought process without hallucinations. The Veteran's diagnoses included PTSD and bereavement. A GAF score of 51 was provided. In a May 2014 statement, the Veteran stated that his PTSD was worse. In a December 2014 statement, the Veteran stated that he struggled to maintain a workable existence. He stated that he was constantly on guard. The Veteran reported worsening of his PTSD symptoms during a VA medical center visit in August 2014. He described poor sleep, flashbacks, irritability, poor concentration and anger outbursts. He stated that he felt that the suicide of his son worsened those symptoms to the point that it was difficult to work. The Veteran reported continued trust issues primarily with work but felt his mood would improve with his planned move. The Veteran continued to have passive thoughts of being better off dead but denied any current suicidal or homicidal ideations, intent or plans. He stated that when he was around his daughter he did not have any of these thoughts but was focused on helping her. There was no evidence of mania or psychotic symptoms. Mental status examination revealed that the Veteran was appropriately dressed and groomed with good hygiene. The Veteran was interactive and cooperative with good eye contact, speech was normal, thought process was logical, there were no hallucinations, delusions or paranoia noted. The Veteran's mood was depressed, anxious, tearful, angry and irritable and cognition was grossly intact. A GAF score of 52 was assigned. In a May 2015 statement in support of his claim, the Veteran stated that he had anxiety which was worse than ever. He stated that he was hypervigilant and easily startled. He stated that as he aged he had become more paranoid and trusted no one. The Veteran described trouble sleeping and fear of crowds. He reported panic attacks in the past and flashbacks. A July 2015 treatment note included a report of the Veteran's discord with his wife, the Veteran stated that he wanted to go fishing but still worked full time though he dreaded going to plane crashes (as part of his job) and explained that he had a severe fugue state at the last one he investigated and had a flashback. It was noted that the Veteran was alert and oriented in all spheres and able to establish rapport. His speech was fluent and normal in tone, rate and volume and thought processes were logical and goal-directed. The Veteran denied perceptual disturbances. There was no expressed delusional content. Suicidal and homicidal ideations were denied within the past thirty days and there has been no self-injurious behavior. It was noted that the Veteran's cognition was grossly intact and his insight was good. Judgment and impulse control were adequate. It was noted that the Veteran was able to cope with stress and tolerate frustration. An October 2015 VA treatment note reported that the Veteran was alert and oriented in all spheres and able to establish rapport. Mood was basically euthymic. Affect was fully reactive. Speech was fluent and normal in tone, rate and volume. Thought processes were logical and goal-directed. The veteran denied perceptual disturbances. There was no expressed delusional content. Suicidal and homicidal ideations were denied within the past thirty days and there has been no self-injurious behavior. Cognition was grossly intact. Insight was good. Judgment and impulse control were adequate. In his June 2016 substantive appeal, the Veteran stated that he believed that his symptoms warranted a 100 percent disability rating. The Veteran stated that he had persistent flashbacks, that he was negligent of personal hygiene, his memory was worse and that he had frequent thoughts of suicide. At his April 2016 VA examination, the VA examiner concluded that the Veteran's PTSD manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that the Veteran was dressed appropriately and with good hygiene. It was noted that the Veteran appeared alert and oriented to time, place, and person. The Veteran was cooperative and responsive to questions, with appropriate eye contact throughout the interview. His mood was reported as "depressed" and affect was mood congruent and ranging. Speech was spontaneous with normal rhythm, rate, tone, and volume. The Veteran's thought processes were linear and thought content appeared goal-directed and free of paranoia, delusions, obsessions, and ideas of reference. The examiner found that the Veteran did not appear to be responding to internally generated sensory experiences. The Veteran denied suicidal and homicidal ideation. In an October 2016 correspondence, the Veteran stated that he had memory loss for names of own occupation or own name which was intermittent, gross impairment in thought processes or communication which was intermittent, disorientation to time or place which was intermittent and intermittent inability to perform activities of daily living. In this case, the Veteran has not demonstrated total occupational and social impairment. The Veteran's impairment due to PTSD is clear and uncontested. However, the severity of impairment is not shown most closely approximated by the 100 percent disability rating. The Veteran is not shown to be unable to perform activities of daily living, the Veteran's hygiene is not shown to be inadequate. The record demonstrates that the Veteran is oriented with logical thought processes and communication. While the Veteran is shown to have problems with irritability, he is not shown to have grossly inappropriate behavior nor has the evidence demonstrated that the Veteran poses a persistent danger of hurting himself or others. As noted by the Veteran, some of the symptoms described by the 100 percent disability rating are demonstrated, however symptoms which rise to the level described in that rating are simply not shown. In so finding, the Board notes that a 70 percent disability rating most accurately summarizes the severity of the Veteran's symptoms is not meant in any way to undervalue the impact of the Veteran's PTSD on his life. Rather, it demonstrates the level of severity described by the 100 percent rating. While the Veteran's GAF scores alone cannot serve as the sole basis for evaluating the Veteran's PTSD here, the support the Board's finding that a 100 percent disability rating is not warranted by the evidence. The Veteran's May 2014 GAF score of 51, August 2014 treatment note reported a GAF score of 52, both suggest serious but not total impairment which is congruent with the assignment of a 70 percent disability rating. In sum, the preponderance of the evidence is against a rating in excess of 70 percent for service connection for the PTSD. Lower Left Extremity Peripheral Neuropathy The Veteran contends that his lower left extremity peripheral neuropathy warrants a higher disability rating. The Veteran is presently in receipt of a 10 percent disability rating prior to May 18, 2016 and of a 20 percent disability rating thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8721 (2016). Of note, the Veteran's May 2016 VA examination found that the Veteran's diabetic peripheral neuropathy affected the sciatic, rather than popliteal, nerve which is considered under Diagnostic Code 8520. Thus both diagnostic codes will be addressed below. Diagnostic Code 8521 addresses neuralgia of the external popliteal nerve. Under DC 8521, mild incomplete neuropathy warrants a 10 percent disability rating under. Id. Moderate incomplete neuralgia of the external popliteal nerve warrants a 20 percent rating. Id. Severe incomplete neuralgia of the external popliteal nerve warrants a 30 percent rating. Id. Complete paralysis of the external popliteal nerve with foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, loss of extension (dorsal flexion) of proximal phalanges of the toes; lost abduction of the foot; weakened adduction; and anesthesias covering the entire dorsum of the foot and toes warrants a 40 percent disability rating. Id. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just. 38 C.F.R. § 4.6 . Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 4.2, 4.6. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. At an August 2012 VA examination, the Veteran reported that his neuropathy was worse since his last examination and that he has pain, numbness and tingling. Following physical examination the Veteran was found to have mild incomplete paralysis due to neuropathy. In a May 2015 statement in support of his claim, the Veteran explained that he experienced a loss of feeling in his left foot and toes which was worse. He described almost constant pain and stated that it was virtually impossible to walk due to the severe pain first thing in the morning. In his June 2015 substantive appeal form, the Veteran reported that he had peripheral neuropathy which was so bad that he experienced difficulty walking. The Veteran reported constant pain and stated that his big toe was "like dead meat." A July 2015 VA medical center treatment note included the Veteran's complaints of pain in his legs and difficulty walking. The Veteran reported no feeling in his left big toe. At his May 2016 VA examination, the Veteran stated that his big toe was numb most of the time. He described burning pain from the knee to the foot daily. The Veteran stated that he had recently begun to take Gabapentin for neuropathic pain but had not noticed any change yet. The Veteran was found to have moderate paresthesias and/or dysesthesias in the left lower extremity and mild numbness in the left lower extremity. Neurologic examination demonstrated absent vibration sensation in the left lower extremity, there was no muscle atrophy, or trophic changes. Moderate incomplete paralysis of the left sciatic nerve was reported. The Veteran is shown to have submitted statements in support of his claim that his neuropathy was increasingly worse after the time of his August 2012 VA examination. The Board finds especially significant the Veteran's May 2015 statement in which the Veteran is shown to report difficulty walking and increased symptoms which appear to be objectively confirmed by VA treatment notes two months later and again confirmed by clinical testing a year later a the Veteran's May 2016 VA examination. As the Veteran's lay observations are confirmed by later objective medical findings, and resolving the benefit of the doubt in the Veteran's favor, the Board finds that a 20 percent disability rating for moderate incomplete paralysis of the left lower extremity is warranted effective May 12, 2015, the date in which the RO received the Veteran's statement that his condition was worse. Prior to that time, however, the August 2012 VA medical examination reflects the Veteran's mild incomplete paralysis of the sciatic nerve of the left lower extremity. The evidence of record does not demonstrate moderate incomplete paralysis of the sciatic nerve such that would warrant a higher, 20 percent rating. From May 12, 2015, the objective evidence does not reflect that the Veteran's left lower extremity's severity as moderately severe, severe, marked with muscular atrophy, or complete paralysis of the sciatic nerve, thus an evaluation in excess of 20 percent is not warranted. Hypertension Diagnostic Code 7101 provides a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. Id. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Id. Thus, the 10 percent rating for hypertension contemplates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. In order to warrant a higher evaluation, there must be diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Such findings have not been demonstrated in the present case The Board finds that the Veteran's hypertension does not most nearly approximate the criteria associated with a 10 percent rating. The disability requires control with continuous medication, but the Veteran's blood pressure readings have not approximated a history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. Blood pressure readings upon VA examinations in June 2013 and May 2016 showed diastolic and systolic readings well below the levels contemplated by a compensable 10 percent evaluation. Post-service treatment records also document blood pressure readings that do not most nearly approximate diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. The Veteran's treatment records demonstrate that the Veteran must use continuous medication to control his blood pressure but that the use of this medication is effective. The Veteran's hypertension responds well to medication according to the VA examiners who also found there was no functional impairment associated with the service-connected condition. This is also shown by the Veteran himself who, in a May 2015 statement in support of his claim, stated that he was taking two medications for his blood pressure and that it was generally within a normal range. It is therefore clear that the Veteran's hypertension most nearly approximates the criteria associated with the current noncompensable evaluation under Diagnostic Code 7101. Additional Considerations In reaching the conclusions above, the Board has also considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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. See 38 C.F.R. § 3.321 (b) (1) (2015); 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 first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In the case at hand, the record reflects that the manifestations of the hypertension, neuropathy and PTSD are not in excess of those contemplated by the schedular criteria. The Veteran's symptoms are not outside the realm of what is contemplated. The Veteran has not described any exceptional or unusual features associated with the service-connected disability being rated herein. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321 (b) (1) is not warranted. In addition, the record does not indicate that the Veteran manifests additional symptoms or disability that is attributable to the combined effect of his multiple service-connected conditions or is not adequately contemplated by the rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (2014); Yancy v. McDonald, No. 14-3390 (U.S. Vet. App. February 26, 2016). ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to May 13, 2015 is denied. Entitlement to a disability rating of 20 percent, but no higher, from May 13, 2015 to May 17, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from May 18, 2016, is denied. Entitlement to a compensable evaluation for hypertension is denied. ______________________________________________ M.H. HAWLEY 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/4142827/

THE ATTQEENEYGENERAL GERALD C. MANN AUSTIN~~.TEXAS Honorable John R. Shook Criminal District Attorney San Antonio, Texas Dear Sir: Opinion No. O-3535 Re: Authority of donunoncarrier motor carrier to render pick-up and delivery service E;m;;;;ntsoutside of c~ity In your letter of June 27, 1941, you submit the following facts: "The metropolitan area of the City of San Antonio contains a number of unicorporated suburbs, and a large number of army posts and camps are located within such metropolitan area of the City of San Antonio. All of such suburbs and army camps have in the past been served by such common carrier truck lines without additional certificates of convenience and necessity, providing that Stn Antonio was the terminus of such freight lines. And you request our opinion in response to the following question: "Are common carrier truck lines holding certificates of convenience and necessity from the Railroad Commission of Texas with San Antonio, Texas, as a terminus, author- ized to render a pick-up and delivery service within the metropolitan area of San Antonio comprising suburbs and army camps as above set out without securing additional certificates of convenience and,,necessityas provided by Section III of Article qllb. We gather from your letter as a whole that the suburbs and army camps mentioned therein are located short distances outside the City of San Antonio and do not lie within the limits of any other incorporated cities or towns. We shall so assume and this opinion will not be intended to cover any other state of facts. . - . / * Honorable John R. Shook, Page 2, O-3535 Since a certificate or permit is not required of one whose transportation services would not extend from one incorporated city or town to another, (Art. glib, Sec. l(g), V.A.C.S.) it will be noted that other persons than the carriers in question could perform these pick-up and delivery services without obtaining a permit or certificate. Furthermore, since a certificate of convenience and necessity authorizing a common carrier motor carrier operation cannot be obtained except upon an application describing the route of the proposed service 10 Art. glib) and a showing of public convenience and !E",,sit~ (Set 3 and 10, Art. glib) it would be obviously impossibli for the common carrier operating into the city, as one of its terminal, to obtain a certificate specifically authorizing each and all of such multitudinous operations involved in delivering and picking up packages transported and to be transported over its regular lines. The rendition of this type of service has become quite general and we find nothing in the motor carrier statute which would seem to forbid it. Accordingly, we answer your question in the affirmative, advising that the service may be performed so long as it is in fact a pick-up and delivery service, wholly incidental to the common carrier operation into and out of San Antonio. We can well see where such an operation into an army camp, or other community center, might grow into an extension of the common carrier service, resulting in the establishment of another terminal ooint, and coming within our opinion No. O-1592, copy of which is enclosed. Yours very truly ATTORNEY GENERAL OF TEXAS S/ Glenn R. Lewis BY Glenn R. Lewis Assistant APPROVED JULY 22, 1:?41 s/ Grover Sellers FIRST ASSISTANT ATTORNXY GXN‘NERAL APPROmD @PINION COKKITTRE: By BWB, Chairman GRL:WE"S/cge

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142743/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN HonorableGeorgeB. Sheppud Comptrollerof'PublltAooounts Auatln, Texan Dear SIPS oplxlloa Ilo.o-361 the oplnlm of you v0ul.dbe au ol%&ilal,vbt?a of the uulteds ey, ha8 boea lost, x~tbout the axe aa arquind by Artiolo4365. of our opiolal lb.o- queotlrn mwt be Yours very truly .I J’

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142758/

14 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN c_-- I :’ I a3  -a Jg&Yata dvla6#2U. aetrj, . . . maoi ovrpu in aaranob t3 tk0 5wrotaxy 0s aate, a8 fromthattime downtu wad Inoluding the 30th da of April n4xt rollowia&. only.?UQ!l propextionateDartof ts mllnoal  It 1s to be noted,underthe abow statutu, t&at the trsnahise tnx le oauaod to so&m and becomedue IIttw corpora- tlon's hwxhhis4and rigritiundez.tte or ratherthan xapanits legal rightto Co busineo~ thereunder. In this ecu- motion the oourtsarldr

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125060/

February 26, 2015 The Honorable Joseph C. Pickett Opinion No. KP-0004 Chair, Committee on Transportation Texas House of Representatives Re: The authority of a county to form and Post Office Box 2910 operate transportati~n reinvestment zones, tax Austin, Texas 78768-2910 increment reinvestment zones, or county energy transportation reinvestment zones in various circumstances (RQ-1215-GA) Dear Representative Pickett: You seek clarification regarding a county's formation and operation of various types of reinvestment zones after the issuance of Attorney General Opinion GA-1076. 1 In that opinion, this office concluded that "[a] county's use of tax increment financing to fund transportation projects in a county energy transportation reinvestment zone could be subject to challenge under the equal and uniform taxation requirement in article VIII, section l(a) of the Texas Constitution." Tex. Att'y Gen. Op. No. GA-1076 (2014) at 4. Article VIII, section l(a) provides that "[t]axation shall be equal and uniform." TEX. CONST. art. VIII, § l(a). Under the equal and uniform provision, "[t]axes are said ... to be 'equal and uniform,,' when no person nor class of persons in the taxing district ... is taxed at a different rate than are other persons in the same district upon the same value or the same thing." Norris v. City of Waco, 57 Tex. 635, 641, 1882 WL 9558, at *5 (1882). The equal and uniform mandate requires that all persons falling within the same class be taxed alike, so that a tax imposed by a taxing entity within its territory that equally and uniformly operates on all property in the taxing unit is not constitutionally infirm. See id.; see also Smith v. Davis, 426 S.W.2d 827, 833-34 (Tex. 1968) (recognizing that the equal and uniform mandate requires that all persons falling within the same class be taxed alike); Sharp v. Caterpillar, Inc., 932 S.W.2d 230, 240 (Tex. App.-Austin 1996, writ denied) (same). In your request letter, you assert that Opinion GA-107 6 is inconsistent with prior attorney general opinions and re-urge our consideration of a number of questions about county authority with respect to transportation reinvestment zones (TRZs) and county energy transportation 1 See Letter from Honorable Joseph C. Pickett, Chair, House Select Comm. on Transp. Funding, Expenditures & Fin., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 21, 2014), https://www.texasattomeygeneral.gov/ opinion/requests-for-opinion-rqs ("Request Letter"). The Honorable Joseph C. Pickett - Page 2 (KP-0004) reinvestment zones (CETRZs) under sections 222.107 and 222.1071, respectively, of the Transportation Code, and tax increment reinvestment zones (TIRZs) under section 311.003 of the Tax Code. See Request Letter at 2-3; see generally Tex. Att'y Gen. Op. Nos. GA-1076 (2014) at 1 (describing CETRZs), GA-0981 (2012) at 1-2 (describing TRZs), GA-0953 (2012) at 1-2 (discussing TIRZs). Yet, though each opinion to which you refer is limited to the issues relevant to the particular request, this office has consistently cast doubt on the tax increment funding mechanism that forms the basis of these types of county-level entities. This office first considered a tax increment reinvestment zone under article VIII, sectipn l(a) in Opinion MW-337. See Tex. Att'y Gen. Op. No. MW-337 (1981). The Tax Increment Financing Act of 1979, at issue in MW-337, authorized municipalities to engage in tax increment financing. Id. at 1-2. Fundamentally, tax increment financing involves a base value, which is the amount of property values frozen as of a particular date within a district or "zone," and a captured increment value, which is the enhanced amount of the same property values above the frozen value in subsequent years. See generally El Paso Cnty. Cmty. Coll. Dist. v. City ofEl Paso, 698 S.W.2d 248, 249-50 (Tex. App.-Austin 1985) (describing tax increment financing), rev 'd on other grounds, 729 S.W.2d 296 (Tex. 1986); see also Tex. Att'y Gen. Op. No. GA-0549 (2007) at 2-3 (same). Though a taxing unit's tax levy may be the same percentage for all appraised value for property within a zone and property outside of the zone, the portion of the tax levy on the captured increment is not used for the taxing entity's general revenue fund but is instead pledged or dedicated to funding particular projects as authorized by statute. See generally Tex. Att'y Gen. Op. No. GA-0549 (2007) at 2-3. In Opinion MW-337, this office described the tax levy within a zone as "[a]n ad valorem tax for general municipal purposes and a special assessment for the special purpose of improving a particular district ...." Tex. Att'y Gen. Op. No. MW-337 (1981) at 5. Opinion MW-3 37 noted that the amount of the captured tax increment would be deducted from the municipal tax burden that property in the zone would otherwise share with property outside of the zone. See id. The result was a disparate tax treatment of property in the same class: of all real property located within the municipality, property located outside of the zone "would have 100% of its value taxed to meet the ordinary needs of the city, but [zone] property would have only a part of its value taxed for that purpose, causing an unequal distribution of the ad valorem tax burden." Id. Because of this disparity, MW-337 concluded that the Tax Increment Financing Act was unconstitutional under the equal and uniform provision of the Texas Constitution without an enabling constitutional amendment. See id. That enabling constitutional amendment was approved by the voters with the adoption of article VIII, section 1-g. Article VIII, section 1-g was passed in 1981 and consists of two sections. See City of El Paso, 729 S.W.2d at 296-97. Article VIII, section 1-g(a) provides that: The legislature by general law may authorize cities, towns, and other trucing units to grant exemptions or other relief from ad valorem taxes on property located in a reinvestment zone for the purposes of encouraging development or redevelopment and improvement of the property. The Honorable Joseph C. Pickett - Page 3 (KP-0004) TEX. CONST. art. VIII,§ 1-g(a) (emphasis added). Article VIII, section 1-g(b) provides that: The legislature by general law may authorize an incorporated city or town to issue bonds or notes to finance the development or redevelopment of an unproductive, underdeveloped, or blighted area within the city or town and to pledge for repayment of those bonds or notes increases in ad valorem tax revenues imposed on property in the area by the city or town or other political subdivision. Id. art. VIII, § 1-g(b) (emphasis added). This office has distinguished the two provisions characterizing section 1-g(a) as authorizing tax exemptions or other tax relief and section 1-g(b) as authorizing the Legislature to provide for tax increment financing. Tex. Att'y Gen. Op. No. GA-0514 (2007) at 5-8; see Tex. Att'y Gen. Op. No. GA-0304 (2005) at 2 (noting that chapter 312 of the Tax Code, authorizing municipal tax abatements, is the enabling legislation for article VIII, section 1-g(a)). Subsequent to the adoption of article VIII, section 1-g(b), this office considered a county's authority to issue tax increment financing bonds. See Tex. Att'y Gen. Op. No. GA-0953 (2012) at 1-2. Opinion GA-0953 involved an amendment to the statute at issue in MW-337 that allowed counties to designate an area within the county as a reinvestment zone. Id. at 2. The amended statute did not expressly authorize counties to issue bonds or notes secured by tax increment revenue. See id. This lack of authority to issue bonds resulted in the conclusion that a county was not authorized to issue tax increment financing bonds. Id. In making the statement "the authority to levy taxes that support a tax increment fund is distinct from the authority to issue bonds," this office recognized that a county could contribute its general revenue funds to a tax increment fund created by another entity but distinguished that authority from any implied authority to issue bonds. Id. at 3; see Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948) (noting that counties have only the powers granted "expressly or by necessary implication" in the Texas Constitution or statutes). It was not a statement indicating that any authority of a county to issue bonds was the impediment to a county's creation of a tax increment zone. See Tex. Att'y Gen. Op. No. GA-1076 (2014) at 3. Because the statute was dispositive to the question presented, Opinion GA-0953 did not need to address any constitutional impediments to a county engaging in its own tax increment financing. See Tex. Att'y Gen. Op. Nos. GA-0953 (2012) at 2; GA-0981 (2012) at 2 n.2 (clarifying that Opinion GA-0953 was decided on statutory grounds only and stating that "[n]othing in GA-0953 suggests that a county with statutory authority to issue ad valorem tax increment bonds may do so in the absence of clear constitutional authority"). The constitutional question reserved in GA-0953 was addressed in Opinion GA-0981. In Opinion GA-0981, this office concluded that a county was not authorized to issue tax increment financing bonds secured by a pledge of a county's tax increment revenue because the scheme violated the equal and uniform requirement of article VIII, section l(a). Tex. Att'y Gen. Op. No. GA-0981 (2012) at 3. Opinion GA-0981 considered the tax disparity described in MW-337 and determined that section 222.107 of the Transportation Code similarly resulted in property within a zone being taxed differently from property located outside the zone. Id. at 2-3. It also noted that as article VIII, 1-g(b), authorizing cities to engage in tax increment financing, did not include counties, the amendment did not serve to exempt counties from the equal and uniform requirement The Honorable Joseph C. Pickett - Page 4 (KP-0004) as it did cities so that section 222.107 of the Transportation Code would likely be unconstitutional if challenged under article VIII, section l(a). 2 Id.; see also irifra p. 5 and note 3. Finally, this office issued Opinion GA-1076 which prompted this, your most recent request. Tex. Att'y Gen. Op. No. GA-1076 (2014); Request Letter at 1. Opinion GA-1076 addressed section 222.1071 of the Transportation Code. Tex. Att'y Gen. Op. No. GA-1076 (2014). Section 222.1071 authorizes a county to create a county energy transportation reinvestment zone and use the tax increment revenue to secure matching funds from the state's Transportation Infrastructure Fund. See id. at l; see also TEX. TRANSP. CODE ANN.§ 222.107l(i) (West Supp. 2014). Section 222.1071 expressly prohibits counties from issuing bonds. TEX. TRANSP. CODE ANN. § 222.10710) (West Supp. 2014). Despite that prohibition, Opinion GA-1076 determined that section 222.1071 would likely fail if challenged under the equal and uniform requirement in article VIII, section l(a). See Tex. Att'y Gen. Op. No. GA-1076 (2014) at 2-3. The opinion affirmatively stated that the constitutional infirmity, as was the case in GA-0981, was the disparate tax treatment of property located within the zone versus property located outside of the zone. Id. at 2. While each of your specific questions inquire about several different types of entities, all of your questions implicate the fundamental issue of whether a county has authority to pledge a captured increment of ad valorem taxes to fund a county tax increment reinvestment zone. To address that issue, we consider again the authority granted by article VIII, section 1-g(b) of the Texas Constitution. The fundamental rule in the interpretation of a constitutional provision is to give effect to the intent of the legislators who proposed it and the people who adopted it. Harris Cnty. Hosp. Dist. v. Tomball Reg 'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009). Courts look to the text of a constitutional provision to give effect to its plain language. Id. In determining the framer's and voter's intent, a constitutional provision is construed in light of the conditions existing at the time of its adoption. In re Nestle USA, Inc., 387 S.W.3d 610, 618 (Tex. 2012) (orig. proceeding). "The meaning of a constitutional provision is fixed when it is adopted .... " Cramer v. Sheppard, 167 S.W.2d 147, 154 (Tex. 1942) (orig. proceeding). By its express language, article VIII, section 1-g(b) applies to only "an incorporated city or town." TEX. CONST. art. VIII, § 1-g(b); see Tex. Att'y Gen. Op. No. GA-0514 (2007) at 5-8 (discussing distinction between sections 1-g(a) and 1-g(b), which were adopted in the same legislative session); cf, TEX. CONST. art. VIII, § 1-g(a). The difference in language between sections 1-g(a) and 1-g(b) indicates that the Legislature knew how to include taxing units other than cities or towns in its grant of authority. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on the principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). But it did not do so in article VIII, section 1- g(b ). Moreover, counties, as "other political subdivision[s]," were authorized by the amendment to only participate in tax increment financing as established by a municipality. See Act of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 4, § 10, 1981 Tex. Gen. Laws 45, 49-50; see generally City of El Paso, 729 S.W.2d at 297-98 (recognizing that article VIII, section 1-g(b) provides for the 2 A proposed constitutional amendment to grant authority to counties was defeated by the voters in 2011. See Tex. Att'y Gen. Op. Nos. GA-1076 (2014) at 2 (noting rejection), GA-0981 (2012) at 3 (same). The Honorable Joseph C. Pickett - Page 5 (KP-0004) participation by political subdivisions in the city's tax increment financing plan). Thus, the language of article VIII, section 1-g(b) grants authority to cities that it does not grant to counties. We received briefing in connection to your request letter that argues article VIII, section 1-g(b) makes no express mention of tax increment financing. See Brief from C. Brian Cassidy, Locke Lord, L.L.P. at 4 (Sept. 19, 2014) (on file with the Op. Comm.). The argument is that just as cities have beeh utilizing tax increment financing based only on statutory authorization without benefit of a constitutional amendment, so too may counties utilize such financing based on statutory authority. 3 See id. at 4. Although article VIII, section 1-g(b) does not use the term "tax increment financing," the circumstances of its adoption support a construction of the section as a grant of authority for tax increment financing limited to only municipalities. The Legislature proposed article VIII, section 1-g(b) in response to the issuance of Attorney General Opinion MW- 337 (1981), which concluded that a 1979 law authorizing municipalities to engage in tax increment financing violated the Texas Constitution's equal and uniform taxation provision. 4 Tex. Att'y Gen. Op. No. MW-337 (1981) at 11. Contemporaneous with the election, a publication for voters analyzing proposed SJR 8 described the tax increment financing mechanism in cities and indicated that its purpose was to provide constitutional support to the mechanism at issue in MW-337. 5 A similar publication reiterated the fact that SJR 8 was proposed in direct response to Opinion MW- 3 37 and stated that the legislation implementing article VIII, section 1-g(b) "authorize[d] a city or town to designate an area within its jurisdiction as a reinvestment zone, redevelop property in the zone, and finance the redevelopment by bonds or notes payable solely from tax increments from the reinvestment zone." 6 These publications indicate that the proposed amendment was understood by the voters to provide a constitutional basis to support a municipality's use of tax increment financing to develop or redevelop certain municipal areas. The Legislature that framed the proposed amendment evidenced a similar intent. In the same legislative session in which it adopted SJR 8, the Legislature enacted enabling legislation for the proposed amendment, which specifically authorized municipalities to create reinvestment zones, issue tax increment bonds or notes, and deposit tax increments into the tax increment fund. See Act of Aug. 10, 1981, 67th Leg., 1st C.S., ch. 4, § 9, 1981 Tex. Gen. Laws 45, 49. It contained no similar authority for counties. See id. The enabling legislation is a statement, contemporaneous 3 We disagree with this argument. While statutes may grant counties the authority to create a tax increment reinvestment zone and use the increased tax revenue for county zone projects as authorized by statute, we have previously concluded those statutes likely violate the constitution. See supra at 3-4. Statutes authorizing municipal use of tax increment zones are not unconstitutional under the equal and uniform requirement in article VIII, section I (a) only because article VIII, section 1-g(b) serves as an exception to that requirement. See Tex. Att'y Gen. Op. Nos. GA-0276 (2004) at 5 (characterizing section 1-g(b) as an exception to the equal and uniform requirement), JC-0152 (1999) at 5 (same), JC-0141 (1999) at 3 (same). 4 See Tex. S.J. Res. 8, 67th Leg., 1st C.S., I 981 Tex. Gen. Laws 295 ("SJR 8"); see also House Study Group, Special Legislative Report, Constitutional Amendment Analysis, Analysis of SJR 8, at 2 (Sept. 9, I 98 I); Tex. Legislative Council, Analysis of Proposed Constitutional Amendments Appearing on November 3, 198 I, Ballot, Information Report No. 81-3 at 4 (Sept. 1981 ). 5 House Study Group, Special Legislative Report, Constitutional Amendment Analysis, Analysis of SJR 8 at 1-2 (Sept. 9, 1981). 6 Tex. Legislative Council, Analysis of Proposed Constitutional Amendments Appearing on November 3, 1981, Ballot, Information Report No. 81-3 at 4, 6 (Sept. 198 I). The Honorable Joseph C. Pickett - Page 6 (KP-0004) to the amendment, by the Legislature of its intent to provide only municipalities with a method to finance development with the use of tax increment revenues. See Walker v. Baker, 196 S. W .2d 324, 327 (Tex. 1946) (orig. proceeding) (stating that "contemporaneous construction of a constitutional provision by the Legislature, continued and followed, is a safe guide as to its proper interpretation"). Neither the circumstances surrounding the adoption of SJR 8 nor the enactment of its enabling legislation suggest that either the voters or the framers intended article VIII, section 1- g(b) to permit the Legislature to allow counties to use a tax increment funding mechanism for county projects. And despite the possibility that a given transportation project in a zone may have some county-wide benefit, it remains that all real property located within a county creating a zone is not taxed alike: 100% of the ad valorem taxes paid by property owners outside of the zone goes toward the general support of the county, and a percentage less than 100% of the ad valorem taxes paid by property owners inside the zone goes toward the general support of the county. See generally Tex. Att'y Gen. Op. No. MW-337 (1981) at 5. As this office concluded in Opinions GA-0981 and GA-1076, this taxation disparity is the infirmity under article VIII, section l(a), which requires taxation to be equal and uniform-a mandate we cannot ignore. For these reasons, a county's attempt to utilize a captured increment of ad valorem taxes to fund a county tax increment reinvestment zone is likely prohibited by article VIII, section l(a). Accordingly, absent a constitutional amendment, it is likely a court would conclude that a county may not form and operate a CETRZ, a TIRZ, or a TRZ, to the extent that doing so utilizes a captured increment of ad valorem taxes to fund a county-created tax increment reinvestment zone. The Honorable Joseph C. Pickett - Page 7 (KP-0004) SUMM A RY Absent a constitutional amendment, it is likely a court would conclude that a county may not form and operate a county energy transportation reinvestment zone, a tax increment reinvestment zone, or a transportation reinvestment zone, to the extent that doing so utilizes a captured increment of ad valorem taxes to fund a county-created tax increment reinvestment zone. 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 CHARLOTIE M. HARPER Assistant Attomey General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142778/

OFFICE OF THE ATTORNEYGENERAL OF TEXAS AUSTIN Board of Blreotorr Tsrar Oollego of Art* a IIulwtr+w rln(lrvllle,fexu AttontionI notmrt 0. Lomardt Oentlemenr lmre look up the sot ohmg- thlr rohool in 1929 UlA the mud Of DiMOtOM ud d- 8 a8v membwm 8hould take OS- fn 1929 the 41rt kglrl8ture ahal& the n8m8 and organltatlon of the 8outh Texu @tat* Tmoherr Oollege. A&r ;1929,hht bgi8latUF8, R8@lbl' Ikrritm, p. 627, Ohapter 286. The rohool Va8 renamed, Th8 %XB8 0011.68 OS h-t8 urd fndW- tl'ie8. Board Ot WMOtOP8, -0 2 tioa to the but108 of hi8 afflae. B8ah aen- ber’of the Board 8u take the ooadltutloa- 8d oath of offloe.. %he 8ald BoU'd of dire~toF8 8hol1 =08t iOr ~th0 fti8t ttU &ftOr the p&88- ~II@of thi8 rot st the t-0 8ad plaoe de8%@8t- ed by th e Oo vo r no r , l8 8009 after their appolat- IOat U pO88iblO. .They 8h8ll orgullse by eleotlag l P M 8ldea t oi'88ld bouvLoi dlreo- W:,:" 8& other otti0.M U they arrJde- . They dull 8dOOt a m8ldeat ror the 001106e U 8OOa U 088lb;, ztz: Orgsal- UtlOn of the 88ld Lard . 8hill.3.~ hi8.t.~ Or Orf%ti,.dU h&i S-W .. md de,%~'hiD dutier. The Worldeat of the Oollege -1 b8 th8 lxeautlve oittoer t0~ th. bosrd oi diMOtOP8 sad 8hll Vork uadw tholr dlreatloar. Bo 8~.reo08mnd the plm orgsalmtlon, sad the appointrunt or e@oyeer of 8tid Colb60 and &all h&T. th. ooo&mratloltof 88ld b0Ud of diMOtOr8 &ad rhall b8 rorpoorlblo to uld bawd for the 8flOr 28UW6 ti UO~tM d 8000.81 Of 8tid lOl- !ege.= (Underroorlng 01~8) aeotion 5 readr, in part: , Board of Dlraatorr, page ;j "Uhqlag the Jtuaqement of the South 'PO=8 8trtO ~U8hO~8 cO~860. At the bO&l- ning Of the 8tlhOO1Y.u. &kRttIdQ fil'8ti?~ -tOP the &I888860Of thi8 bill. the OontrOl and maM3ement of the South Texa8 State Teaoherr mlege rhall be diverted out o? the Board of Regent8 of the Tour State TOaOhOr8 College and iuvertod in the bomd of Dlrratorr of tie Tera8 do’ZlOg0 Of h’t8 Slkd IndU8triO8 88 WO- aiklnl8ter the to the law of d8°UId the proTirloa8 of the ht. . . .I (Underroorlng ourr) The Aot, effeotlre nlnetr day8 after sdjoummont, beoaaw lav au June 12, 1929. On July 7, 1941, aOremmr OQaniel appolnted throo nev member8 to the Board. Tour quertion 18, wh4n do there nev member8 take o?floe? 8nd vixendo their torm8 expire? A8 ve raid in opinion lie.O-2805; "It hn8 long been th8 ad+100 Of thi8 Of- floe that vhero the bglrlature ?ixe8 the length or a term o? 0rfi00, but do08 not pro- rcrlbe the date for the begiauiag or the end- ;_.,.I.> /- ln.gof the torn, the bo of the term date8 fPOl8th8 -tit8Of ~Ow~=t. : .Repol'tiad o$lalolu or the Att 1914-16,?ago 7361 Rof ort and T0ll8 Cp Of tii0 Attornq Oonoral, 192 -26, rage 344~ Report and Opinions of the Attorney General, 19x- 32, ?%gO8 364 slid3703 n8pOrt md opinion8 Of the Attome Oenerel, 1932-35, ?ager 328, 568, 506; Royrton v. Orlffln,42 40x. 5661 22 R.C.L. 550.m And ln 56 Corpur Jurlr at page 966, it 18 provided: “The generealrule 18 that, vhero no tlm0 18 fixed by the Con8tltution or rtatutes, the term boginr, in the o&re of eleotl+e oifloerr, on the day of eleotlon, and, in the oa8e of Board of Blreot~oM, pag. 4 appolntlro o??loer8 on the date of appolat- Beat. lkrtit.18 OBir Vh.F. the COMtittltiOa or 8tatUtO frill t0 prororlbe WhUi the teF8 of offloo 8hrll begin thrt it begla8 0a oleo- tlon o r lppolatkeat.’ The reoordr of the Ueoretary of 8txte reveal the flrrt alae umber8 vere appointed by tie Ooreraor for the followlag term8 ~qly 3, 1929 (8ee latter dated fir 3, lg29, ?ror Gtyeranrbm WaoaJ to Boaoreble J8ae Y. JW8llm, 2eare- tq of mati): Name noberg, R .1. worthu~gu8 8.. 8toaer Nr8. W. R. L. Fore, &am Boone, -8. 6ordoa Olll, laaar ::::: xlllam, 0. Y. SpOOIkt8,Itr8:L. J. La8d*r, Ed. a. It Vlti b8 aotod that ti O? th. aigbd it!&. rir- .b er o fi ?imBo ud vu0 lppolateb 011Bar 3 1929, ar prior,to the e??ebtlredate of the A&t i Jlpiu3R,.hg. ~aba8eqlieat~,'. '. ve mar not app%~ the general awl0 that ~Irheathe tlu of be- 6iallb6 OC eZtdia#18 not 8tat.d a t.m -8 irOB th0 &4tO Of the fiF8t anOintMat. I? th. &618l&\PO in UWta m$@ u HO. 893 muiiferted it8 intent it 18 our dutt to ?OlfOV that inton- tioa. The general rule that tom8 Vlll Pus 8t ooa8eout~ve latervalr from the date of the fb8t appointmUd 18 applloablo OtiJ VhSn the &6i8htUM hU aOt 8JBOO%?kOdOth8FdlO. Air 8tdbd in &Om 1. JtdlO&, 86 Ark. 555, m II. Y. 9901 "The tOX'UbO6in8 aOt ZWOO88U1lr OX&th. date of appointment, iut ?rosrthe tiu fiud br the lumakerr for it to be&la.' Board of Dirootorr, p86e 5 The oa8e held that under the olratnrtanoer the term of the trurtee8 of Ilrkarrclar gtate Charitable b8titutioar be- gan on the effootlve date of an Aot oreatlng a aev board of truateer. In our oa8e there are three pO88ibilitiO81 ,The term8 of Dlreotorr of the Toxu College o? Art8 1 Indurtrlol may run from the date of the til'8tap- polnti12tJNa~ 3 - (2) June 12 - the effeotire dnte of the aot of 1929; or (3) ISeptember1. 8eotlon 5, previously quoted, prorider IA.& the ooa- trol and mmagemeat of the old South Texu &ate Tea&err Col- lege rhall pa88 from the Board of Regents of the Turr gtate Teacher8 College to the net Board at the begladng of the 8Ohooi year, 8eptembor 1 after the parrago of ~thebill. &'tOr OarO?Ul ooaridorrtion it 18 our Opinion, and you are 80 advlred, that the latent of the kgirlatrrre Emi- 'fe8ted.l.ngootion 5 of the &t creating the TeXar Oollbge of kt8 & &dU8tl'ie8 18 that tw tOl'R8Of the OC&iIIAl ti8 mm- : .berq.began on t+p$enber 1, 19@3, an4 ea4,ed,aooor$$g to the 'leiigthOf t&fir appOb&tiat8 in 8Ub8OqUOnt JOhPr on th0 318t ” . day of AugUrt, The. tom8 of all vho.hav8 and vlll ruoaeed them llko- vlre vi11 begin on September 1 of the fear and end - 6 p-8 later - on Augurt 318t. ft 18 illOgiOa1 to a88WO that the term8 of the Mreotor8 rhould begin at a tine prior to the date on vhloh the7 may legally a88ume the dutler of their offloe. It 18 therefore our opipion 6ad you are rOopOOt- fully advl8ed that the term8 of the aev member8appointed w the Oovernor to the Board of MreOtOr8 of the Fe=8 College Board of Dlreotora, page 6 of &t8 & IInh8trler will bogla on #optemb8r~tt rrrdthAt u t0 @ll dtMOtOMhi~8 tOndrutili& this mu, Wt fl8t u be the explrrtloa date of tholr termof offloe. : ., ‘- ... ,. . . ._. . . . ‘. . : _:. >. :

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142790/

OFFICE OF TWE AT~ORNEY~ENERAL OFTEXAS AUSTIN Honorable Rol.a& Boyd : County Attoraey Collln Courlty . ~~luE.nueg,.PL’exas ed for the ercergency olty lb& in the aounty X!kP brosdaartn~ eseen- tlal policb infomation concerning it, when the ShharLff hold: n’Pcloa~ varrmt for e party he is u;r?~blo to looatc? :ClW br%xkfi.Ets a ~lci:up for hllil all oyer 'i?cx11sand adjo?nir?g 3tctfs. Elen the dOpU.tiCS CPO IlOt OthZFJi?C SX~liOj72d, tht? ShePilT wends then to petraol Ilirljn:ny 75, 253, 24, o? 78; vhen he weds the~~ZWP rcdio thair 3nn3truotiana to t1ma.  i Honorable Roland nctta, page 2 :. :, .,~ .‘: ,._ ._: ‘,~, ‘ .” ...‘. ‘: vh8 Sheriff has XTIP~broadoaat l&sages in an attempt to locate rml-avay .children, missing ~‘~:‘perwona, and stolen property.. z . “Queetiom C& the Sheriff with the &proval :’ of the Cor;sisai9ners Court pay ths City of hcKi;irmey, or Bedio Station XL?=2a reasonable mount monthly for this rncU.0 service? : “Art .. 3899 (b) provisos that each officer who ~:~receivee a salary shall bo enyomred to pumhaso ‘. and have ahavged to the cou;lty ‘All --- masonable ~e.xpensos necessary -..-.y.w. in the pro-,er-Z legal con- ‘. duct ofti office,‘.. .‘. .” I .. ‘Tit oacurs! that the ssrvice the Sheriff ‘re- -:.,: ceives frcrtrtE?ZWPIs of the se3e natwe as that he -.~oceives fromthe telephone company. In feat by .YY reason of XTUl.the~ Sheriff’s telephone bi.11 ia materially reduced, and In addition he 1?8ce~~ves ‘. a service that only a radio can give. It ‘eee7.33 to cl? that tNa is 83 reasonable e,ad neoassarg~ex- ., <_~ppense as my expeasq tha sheriff has. ~>._. “i h.avs mad all of you< op%nion~ on officer’s e&enaes aDd fLod none which ansver the question. ’ Section (b) of Article 3899, Verian*s AMotateQ f+zi3 St&tan, reads :-in .ps.x+‘as follows:.~ . . : ~_ . : ,, ._ : ‘~: 1: ,. .. :. ‘(b) “Each officer rimed in thia~ Act,’ vhere - he receives r salary as co~gennsation for his ” .... I wcF?lces, shall be mpovored and porxitted to purahcae end hnve chasged to his comty all ma- eonable expenses necessary in the proper end legal conduct of his offioo, prenium on ~officirls~ bonds; pTetim on fire, bur@my, theft, robbery : lneuranoe protect5ng public fums Gzld including the cost of surety bonds for his Doputlea,~ such expenses”to ba passed on, pre-detcmlned and al- lowed In l&xl end ec?.o~~ltY, cw nearly ew possible, by the Cortiaaioncro’ Cou%*tones each sonth for tbo. ensuing ronth, upon ihs application by each officer, wtatin~ the kfxd, pyobabie mlount of ef- pend.I,ture and the necessity for the expenses of  i- Honorable Roland Boyd, pa60 3 his office for such ensuing Eonth, t;blch tpplicatlon shall., before presentation to said court, first be endorsed by the Cow&y Auditox’, ir’ my, other-.+&e the County yreasurer, only as to whether furds cre evoilable for payizznt of such ex.pesises., The Com- nissioners’ Court of the cou:;ty of the 2hsriff’s residence my, u>on the mitten and sworn applica- tion ol the shorlff stating the necessity therefor purchase equipment for .s bureau of crikinnl identi- ficatioz, such EB cameras, fi?:y,ar Drir?t cards, Inks, chezioals, ciioroscop6s ( radio end laboratory oquip- nent in keeping v;ith the systos in use by the ~a- partizefit of lublic Safety of this Ztpte, OT ths Gnlted states Deparkeut of Justice esd/or Bureau of CrLtinnl Identificstion.” . It is our opinion thet the above quoted statute is broad &ou@ to cover the contezplo ted expense, end that the same ~zmv be ellowed provided the procedure prescribed tkereln~ is follo&d and approved by the co.mzi.esi;onersl court. Therefore, your ‘ques- tion is answered in the affirmative. :i Very truly yours a ATTORNEY GENERAL 0~ TMAS

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142796/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN  vw8~i08 ra wit3 (8) mm inkpeas for S'mncbr G $lWpa mvnth eaeb #lo~.au" The body of the hot lt will be observed ir 8ilozi1 upon the question of whether ihe 8gpPopriatlons I& therein are to be available Sor expenditure after the erplretion oS the fiscal.year ending Ailgust?il,1941. The .&t was Passed aa 30.emergency mamre~ effeat- Ire on my 1;; 1941. It appears Smri the aertfSiouteap en& by the Shies &lerX OS the Pause th6t the Act was passed f p tl Eouzo on Ziarch 20, 1941; and it appears from th6 certificate of the ;:ecretaryOS tke sennte tkat the AOC w6 pazsed by tht a-ate on April 80,194l. not wao finally paq#ed end aads effe6tlvu.

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127397/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ------------------------------ OPINION : : of : : JOHN K. VAN DE KAMP : No. 87-303 Attorney General : : JUNE 4, 1987 RODNEY O. LILYQUIST : Deputy Attorney General : ---------------------------------------------------------- THE STATE PERSONNEL BOARD has requested an opinion on the following question: Are the officers in the "student affairs officer class series" at the California Maritime Academy included in the state civil service system? CONCLUSION The officers in the "student affairs officer class series" at the California Maritime Academy are included in the state civil service system. ANALYSIS The California Maritime Academy is a state institution within the Department of Education (Ed. Code, § 70010)1 and has as its purpose "to provide instruction on the nautical sciences, marine engineering, and related fields" (§ 70000). It is a four-year, accredited, post-secondary institution governed by a board of governors and located on San Francisco Bay. (See §§ 70000-70001; 70010, 70020, 70021, 70034.) The question presented for analysis concerns persons at the academy having employment positions in the "student affairs officer class series." Are these officers subject to the state civil service system, or are they exempt from the system? The duties of the officers are 1 All references hereafter to the Education Code are by section number only. limited to providing recruitment, admissions, registration, financial aid, career placement, and counseling services at the academy. The officers are not part of the faculty giving instruction to the students in the curriculum of the academy. We conclude that the officers are within the state civil service system as required by the Constitution and Government Code section 18598. The Legislature has given to the academy's board of governors the authority to "provide, maintain, manage, and control" the academy (§ 70020), and the board has the specific power to "[a]ppoint, and may remove, a superintendent of the school and all necessary instructors and other employees" and to "[d]etermine the powers, duties, and compensation of the superintendent, instructors, and employees" (§ 70021, subds. (a), (b)). 2 Pursuant to this grant of authority, the board of governors has adopted a regulation (Cal. Admin. Code, tit. 5, § 60001, subd. (d)) defining its "instructional staff" as follows: "(1) The faculty of the Academy, which faculty shall consist of persons qualified to give instruction in authorized curriculum and who shall report to the Academic Dean or the Commanding Officer of the Training Ship; and "(2) Academic Employees who are qualified to give instruction in the professional development of the midshipmen and who shall report to the Commandant of Midshipmen; and "(3) Academic employees in very closely related professional activities such as administrative assistant to the president, financial aid, admissions, counseling, placement, recruiting and director of adult maritime education. "The classes of civil service exempt positions whose incumbents may be eligible for inclusion in one of these categories will be determined by the President." (Emphases added.) It has also by regulation (Cal. Admin. Code, tit. 5, § 60002, subd. (e)) prescribed the duties of its 2 The Legislature has also directed the Department of Personnel Administration to "establish and adjust the salaries of the superintendent, members of the teaching staff, officers and employees of the California Maritime Academy in the same manner and following the same procedures as in the establishment and adjustment of state civil service salaries." (§ 70031, subd. (a).) The State Personnel Board is directed to "establish and adjust the classifications of the superintendent, members of the teaching staff and officers and employees of the California Maritime Academy in the same manner and following the same procedures as in the establishment and adjustment of state civil service classifications." (§ 70031.1.) 2. 87-303 "academic employees" as follows: "(1) Academic Employees reporting to the Academic Dean or Commanding Officer of the Training Ship shall be appointed by the President, upon the recommendation of the Dean or the Commanding Officer of the Training Ship and shall have primary responsibility for the following instructional duties: "(A) To educate each midshipman in an accredited college program in Nautical Industrial Technology, Marine Engineering Technology and related fields; and "(B) To train each midshipman in the skills and knowledge essential to licensing in the United States Merchant Marine. "(2) Academic Employees reporting to the Commandant of Midshipmen shall be appointed by the President, upon the recommendation of the Commandant of Midshipmen and shall have primary responsibility for the following instructional duties: "(A) To develop in each midshipman a strong sense of duty, honor and service to country and instill in him a pride in his profession; and "(B) To develop in each midshipman a sound body and the physical attributes necessary to meet successfully the rigors of the sea. "(3) Academic employees in very closely related professional activities shall be appointed by the President upon the recommendation of the executive assistant to whom the designated position reports, and shall have primary responsibility for the following instructional duties: (a) Administrative Assistant. The Administrative Assistant, under the direction of the President, shall perform administrative duties including those related to instructional activities. (b) Financial Aid Officer. The Financial Aid Officer, under the direction of the Administrative Officer, shall provide financial aid services for all midshipmen. (c) Admissions and Recruiting Officer. The Admissions and Recruiting Officer, under the direction of the Administrative Officer, shall provide admissions services for the midshipmen and recruiting services for the Academy. (d) Registrar. The Registrar, under the direction of the Administrative Officer, shall provide registration and records services for all midshipmen. (e) Placement Officer. The Placement Officer, under the direction of the Administrative Officer, shall provide placement services for all midshipmen and graduates. (f) Director of Adult Maritime Education. The Director of Adult Maritime Education, under the general direction of the Academic Dean, shall plan, organize 3. 87-303 and supervise the adult maritime education program. (g) Additional employees. Additional assignments in this category shall be made by the President and in each such assignment the duties shall be established by the President. It is recognized that more than one assignment may be held by one person. "All academic employees in this category shall assist each midshipman to utilize effectively and receive maximum benefits from available academic and closely related professional services and will instill in each midshipman an awareness of and a commitment to individual responsibility." (Emphases added.) The regulations of the board of governors define the persons in the student affairs officer class series as part of the "instructional staff" and as "academic employees" exempt from state civil service. (Cal. Admin. Code, tit. 5, § 60004.) It is well-recognized that "the construction of a statute by officials charged with its administration, including their interpretation of the authority invested in them to implement and carry out its provisions, is entitled to great weight. . . ." (Morris v. Williams (1967) Cal.2d 733, 748; accord Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal. 3d 384, 391.) As stated by the Supreme Court in Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal. 3d 811, 816: "In determining the proper interpretation of a statute and the validity of an administrative regulation, the administrative agency's construction is entitled to great weight, and if there appears to be a reasonable basis for it, a court will not substitute its judgment for that of the administrative body. [Citations.]" On the other hand, "Where a statute empowers an administrative agency to adopt regulations, such regulations 'must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose.'" (Woods v. Superior Court (1981) 28 Cal. 3d 668, 679; see Gov. Code, § 11342.2.) Administrative regulations that "alter or amend the statute or enlarge or impair its scope are void. . . ." ( Morris v. Williams, supra, 67 Cal. 2d 733, 748; accord Ontario Community Foundations, Inc. v. State Bd. of Equalization, supra, 35 Cal. 3d 811, 816-817.) A regulation is invalid not only when "in conflict with the statute which created the agency or which the agency is authorized to administer" but also where it "contravenes a provision of a different statute." (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal. 3d 392, 420.) "'It is fundamental that an administrative agency may not usurp the legislative function, no matter how altruistic its motives are.'" (Id. at p. 419.) The state civil service system was instituted in 1934 by means of a constitutional amendment. The primary provision defining the system is now found in subdivision (a) of section 1 of article VII of the Constitution: "The civil service includes every officer and employee of the state except as otherwise provided in this constitution." As stated in the ballot 4. 87-303 pamphlet at the time the constitutional amendment was adopted: "The purpose of this constitutional amendment is to promote efficiency and economy in State government. The sole aim of the act is to prohibit appointments and promotion in State service except on the basis of merit, efficiency and fitness ascertained by competitive examination. Appointments of inefficient employees for political reasons are thereby prohibited, thus eliminating the 'spoils system' from State employment." (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 6, 1934), p. 12.) It is regularly stated that the Constitution itself must be examined to determine whether a particular officer or employee of the state is exempt from the civil service system. (See 67 Ops.Cal.Atty.Gen. 27, 28 (1984); 65 Ops.Cal.Atty.Gen. 475, 479-480 (1982); 63 Ops.Cal.Atty.Gen. 858, 859 (1980); 61 Ops.Cal.Atty.Gen. 68, 71 (1978).) Here we are directed to two exemptions contained in section 4 of article VII of the Constitution: "The following are exempt from civil service: " ..................... "(h) Officers and employees of the University of California and the California State Colleges. "(i) The teaching staff of schools under the jurisdiction of the Department of Education or the Superintendent of Public Instruction." These are the only constitutional exemptions that arguably may be applicable to the officers in question. The academy is authorized to share facilities and to exchange students and instructors with the California State University. (§ 70037.) Its board of governors may contract with the trustees of the California State University for legal services, legislative representation and assistance in curriculum development. (§§ 70022, 89003.) Moreover, section 89004 states in part: "The trustees, or a designated committee thereof, shall be a board of visitors to the Board of Governors of the California Maritime Academy and shall meet with the board of governors to discuss policies and concepts common to the two institutions, and to advise the board of governors." 5. 87-303 Despite these ties, however, the academy is neither a part of the California State University nor of the University of California. (See §§ 70000, 70002, 70010, 89001, 89004 ["the California State University or the trustees shall not be legally responsible in any way for the acts or omissions of the California Maritime Academy or the board of governors"].) The student affairs officers of the academy thus do not come under article VII, section 4, subdivision (h) of the Constitution. As for the "teaching staff" exemption (Cal. Const., art. VII, § 4, subd. (i)), we have previously mentioned that the academy "is within the Department of Education." (§ 70010.) We believe this organizational structure suffices for the academy to meet the constitutional test of being a school "under the jurisdiction of the Department of Education" even though the board of governors has the statutory responsibility to "provide, maintain, manage, and control" the affairs of the academy (§ 70020). In 56 Ops.Cal.Atty.Gen. 44, 45-46 (1973), we so concluded. The question remains, however, whether the academy personnel in the student affairs officer class series constitute "teaching staff." The "teaching staff" language has been in the Constitution since 1934. In California State Employees' Assn. v. Trustees of the California State Colleges (1965) 237 Cal. App. 2d 530, 539, the Court of Appeal noted "the expressed will of the people that professors and teachers shall not be within civil service." No other reported case has considered this provision. The student affairs officers are not professors or teachers. They do not give instruction in the curriculum of the academy, have teaching credentials, perform in a classroom setting, assign work in an academic subject, or issue grades evaluating the progress of the students. While no single factor is dispositive, we do not view providing recruitment, admissions, registration, financial aid, career placement, and counseling services in the same light as "teaching." The latter term is commonly defined as "to cause to know a subject," "guide the studies of," or "conduct through a course of studies." (Webster's New Internat. Dict. (3d ed. 1971), p. 2346.) Something more is required than imparting information. "Teaching" may be compared with similarly defined words as follows: "Teach is a general term for causing one to acquire knowledge or skill, usu. with the imparting of necessary incidental information and the giving of incidental help and encouragement . . . . INSTRUCT may suggest methodical, continuing, or formal teaching . . . . EDUCATE may apply to more pretentious processes of teaching and instruction designed to ensure full development of the capacities of a more intelligent person . . . . TRAIN may suggest methodical, thorough instruction and guidance with a specific end in mind until rapid and successful execution of duties and tasks is assured . . . . DISCIPLINE calls attention to subordination to a master or subjection to control, sometimes one's own . . . . SCHOOL often interchangeable with others in this set, perhaps more often has suggestions of TRAIN although it lacks the specificity of this latter 6. 87-303 word . . . . COACH is likely to refer to training with demonstration and practice in some specialized, often extracurricular activity . . . . TUTOR usu. applies to teaching on an individual basis in some specialized subject . . . ." (Ibid.) If the entire staff of the academy, including nonteaching positions, were intended to be excluded from state civil service, the academy need only have been placed in the same constitutional exemption as the University of California and California State University. Our analysis of the Constitution is supported by the Legislature's statutory scheme implementing the constitutional provision establishing the state civil service system. (Gov. Code, §§ 18500-19798; see 63 Ops.Cal.Atty.Gen. supra, 859). With respect to the officers and employees of the academy, the Legislature has provided: "The 'state civil service' shall include all personnel appointed or employed at the state nautical school except personnel whose duties consist of instructing students or supervising such instructional personnel and except students enrolled at the school who are working part time as students assistants." (Gov. Code, § 18598.)3 The "personnel whose duties consist of instructing students" would be the academy's teaching staff. "Instructing" students is the equivalent of "teaching" them. (See Webster's, supra, p. 1172.) The duties of the officers in question do not "consist of instructing students." They do not meet the test for exclusion from civil service under the terms of Government Code section 18598. As noted, we must accord great weight to the administrative regulations of the academy's board of governors that exclude the student affairs officers from state civil service. Nevertheless, it is not the view of the board of governors that is controlling but rather "the intent and objective of the drafters of the provision and the people by whose vote it was adopted" (Mosk v. Superior Court (1979) 25 Cal. 3d 474, 495) in placing the state civil service provisions in the Constitution. Not even the Legislature may create exemptions from state civil service. (67 Ops.Cal.Atty.Gen. supra, 479-480.) "A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words." (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal. 3d 208, 245; see In re Quinn (1973) 35 Cal. App. 3d 473, 482.) We reject the argument that the providing of recruitment, admissions, registration, financial aid, career placement, and counseling services may be equated with the services of the "teaching staff" as that term was contemplated by those drafting and voting for the constitutional provision. 3 The academy is also known as the state nautical school. (§ 70002.) 7. 87-303 The administrative regulations appear to recognize this dichotomy by referring to the duties of the student affairs officers as not being part of the faculty of the academy but rather "in very closely related professional activities." (Cal. Admin. Code, tit. 5, § 60002.) These officers are not considered "[a]cademic employees who are qualified to give instruction in the professional development of the midshipmen." (Ibid.) They do not have the duties "[t]o educate each midshipman in an accredited college program," "[t]o train each midshipman in the skills and knowledge essential to licensing in the United States Merchant Marine," "[t]o develop in each midshipman a strong sense of duty, honor and service to country and instill in him a pride in his profession," or "[t]o develop in each midshipman a sound body and the physical attributes necessary to meet successfully the rigors of the sea." (Ibid.) In sum, the regulations of the board of governors are in conflict with article VII of the Constitution and Government Code section 18598. The officers "in very closely related professional activities" to that of teachers and instructors are not the "teaching staff" of the academy and do not have duties that "consist of instructing students." Concededly, the constitutional and statutory provisions must prevail over the regulations of the board of governors. In answer to the question presented, therefore, we conclude that the officers in the student affairs officer class series at the academy are included in the state civil service system as required by the Constitution and Government Code section 18598. 8. 87-303

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127371/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ---------------------------------------------------------------- : OPINION : No. 87-301 : of : DECEMBER 22, 1987 : JOHN K. VAN DE KAMP : Attorney General : : CLAYTON P. ROCHE : Deputy Attorney General : : ---------------------------------------------------------------- THE HONORABLE THOMAS W. SNEDDON, JR., DISTRICT ATTORNEY, SANTA BARBARA COUNTY, has requested an opinion on the following question: Can section 556 of the Penal Code be constitutionally applied to a candidate for public office? CONCLUSION Section 556 of the Penal Code is applicable only to commercial advertising. Accordingly, it is not applicable to campaign signs of candidates for public office. ANALYSIS Section 556 of the Penal Code provides as follows:1 "It is a misdemeanor for any person to place or maintain, or cause to be placed or maintained without lawful permission upon any property of the State, or of a city or of a county, any sign, picture, transparency, advertisement, or mechanical 1 All section references are to the Penal Code unless otherwise indicated. 1. 87-301 device which is used for the purpose of advertising or which advertises or brings to notice any person, article of merchandise, business or profession, or anything that is to be or has been sold, bartered, or given away." Section 556 is one of a series of sections which were first enacted in 1911 (Stats. 1911, ch. 487) and remained as an uncodified act until their incorporation into the Penal Code, without substantial change, in 1953. (Stats. 1953, ch. 32.) Section 556.1 prohibits the same conduct as does section 556, but on private property "without the consent of the owner, lessee, or person in lawful possession of such property." Section 556.2 then provides exceptions to the foregoing prohibitions. It states: "Section 556 and 556.1 do not prevent the posting of any notice required by law or order of any court, to be posted, nor the posting or placing of any notice, particularly pertaining to the grounds or premises upon which the notice is so posted or placed, nor the posting or placing of any notice, sign, or devise used exclusively for giving public notice of the name, direction or condition of any highway, street, lane, road or alley." Section 556.3 finally provides that "[a]ny sign, picture, transparency, advertisement, or mechanical device placed on any property contrary to the provisions of sections 556 and 556.1, is a public nuisance." This opinion posits the question whether section 556 can be applied to political advertising by virtue of the free speech clauses of the United States Constitution and the California Constitution.2 We conclude that section 556 is applicable only to commercial advertising. Accordingly, by its own terms it is not applicable to campaign signs of candidates for public office. Initially, we note that the term "advertising" is not limited to commercial messages, but is merely the action of calling something to the attention of the public, including "political 2. The First Amendment provides: "Congress shall make no law . . . abridging the freedom of speech. . . ." This amendment is applicable to the states by virtue of the Due Process Clause of the Fourteenth Amendment. See also California Constitution, article l, section 2. "(a) Every person may freely speak, write or publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." 2. 87-301 advertising" or even "personal advertising." (See Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 188.) It is clear that the term "advertising" encompassed political advertising even in 1911, when the predecessor to section 556 was first enacted. (See, e.g. definition of "advertise" in Webster's International Dictionary, 1903 Edition, page 26, as including "2. To give public notice of . . . a political meeting.") We also note initially that the First Amendment enjoys a preferred position in our law. "[I]t can hardly be doubted that the constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office" (Monitor Patriot Co. v. Roy (1971) 401 U.S. 265, 272) so "that candidates have the unfettered opportunity to make views known" (Buckly v. Valeo (1976) 424 U.S. 1, 52-53). Finally, we note that despite this preferred position free speech enjoys in our system of jurisprudence, recent cases decided by both the California courts and the United States Supreme Court have upheld the application of local ordinances prohibiting the placement of advertising on public property to political advertising. (See Sussli v. City of San Mateo (1981) 120 Cal.App.3d 1; City Council of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789.) Accordingly, if section 556 can be reasonably construed to apply only to commercial advertising, the constitutional issue presented herein may be avoided. Section 556 et seq. and its predecessor, Statutes of 1911, chapter 487, have never been construed or even cited by the courts. ". . . it is our duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakenly appears; all presumptions and intendments favor its validity." (Mills v. Superior Court (1986) 42 Cal.3d 951). As also stated by the California Supreme Court in Metromedia, Inc. v. City of San Diego, supra, 32 Cal.3d 180, 186, where it faced a question similar to the question of interpretation presented herein: "We first consider the question of interpreting the term 'outdoor advertising display signs' to limit it to commercial signs. Judicial doctrine governing construction of a law to avoid unconstitutionality is well settled. If 'the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution,' (County of Los Angeles v. Legg (1936) 5 Cal.2d 349, 353 [55 P.2d 206]; People v. David (1968) 68 Cal.2d 481, 483- 484 [67 Cal.Rptr. 547, 439 P.2d 651]; San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948 [92 Cal.Rptr. 309, 479 P.2d 669].) Consequently, '[i]f feasible within bounds set by their words and purposes, statutes should be construed to preserve their constitutionality.' (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 175 [167 Cal.Rptr. 854, 616 P.2d 836].)" Returning to the language of section 556, we could interpret the section as applying to all advertising, including noncommercial advertising such as political displays. This is so because the word "advertisement" is found by itself in the first part of section 556 in the phrase "any sign, 3. 87-301 picture, transparency, advertisement, or mechanical device used for the purpose of advertising." All of this enumeration stands without any clear modifiers designating a commercial purpose. It is not until the next series of phrases following the disjunctive "or" that there is any reference in the statute to any commercial activity as the purpose for the advertising ("or which advertises or brings to notice any person, article of merchandise, business or profession, or anything that is to be or has been sold bartered or given away."). Accordingly, we could conclude that section 556 applies to all advertising, including noncommercial advertising. We reject this interpretation for a number of reasons. First of all, if section 556 were to be bisected at the disjunctive "or" as set forth above, there would be no need for the second part of the section. All the language following the word "or" and which ultimately contains the modifiers as to commercial activity would be surplusage. The first part of the section would already include all advertising, both commercial and noncommercial. However, "[i]t is an elementary rule of statutory construction that, if possible, every word and phrase of a statute should be given significance in order to effect the legislative intent." (Steinberg v. Amplica, Inc. (1986) 42 Cal.3d 1198, 1205.) "'[A] construction making some words surplusage is to be avoided.'" (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.) We can, however, give meaning to the second portion of section 556, and accordingly to the whole statute, if we construe the second portion of the statute to modify or explain the first part. By doing so, the first part of the statute, that is, "any sign, picture, transparency, advertisement, or mechanical device" will be items which also "bring [] to notice any person, article of merchandise, business or profession, or anything that is to be or has been sold, bartered or given away." So construed, the only words remaining in the statute which would then not clearly relate to a commercial activity would be the words "any person". However, taken in context, these words should also be construed to relate to the commercial activities of such persons, such as a profession or other commercial calling, for example, law or medicine. That this construction is correct is confirmed by an examination of the original wording of the statute as enacted by Statutes of 1911, chapter 487. As originally enacted, the predecessor provision to section 556 provided: "SECTION l. It shall be unlawful for any person, persons or corporation to place, cause to be placed or to maintain, or cause to be maintained without lawful permission on or upon any property, either real or personal, belonging to the State of California, or to any city, city and county or county in the State of California, any sign, picture, transparency, advertisement or mechanical device which is used for the purpose of or which does advertise or bring to notice any person or persons or article or articles of merchandise or any business or profession or anything that is to be or has been sold, bartered or given away. (Emphasis added.) Accordingly, whereas section 556 presently has the transitional language "which is used for the purpose of advertising or which advertises or brings to notice," etc., which conceivably permits 4. 87-301 bifurcation at the disjunctive "or," the original wording in 1911 was "which is used for the purpose of or which does advertise or bring to notice," etc. This latter language does not permit such bifurcation. In short, the transitional language of the original statute demonstrates clearly that the first half of the statute is to be read with and modified by the second half. That no change in the meaning of the statute was intended by this slight change in language or sentence structure is confirmed by the legislative history of section 556. Section 556 was enacted by Assembly Bill No. 1909 (Caldecott), 1953 Legislature. That bill codified some sixteen uncodified acts into the Penal Code. A letter from the California Code Commission to Governor Earl Warren, dated, March 24, 1953 concerning that bill stated: "The bill was prepared and is recommended by the California Code Commission. It makes no change in the existing law. . . ." Code Commission notes and comments are strong evidence of legislative intent. (People v. Wiley (1976) 18 Cal.3d 162, 171; People v. Williams (1976) 16 Cal.3d 663, 667-668; Li v. Yellow Cab (1975) 13 Cal.3d 804, 817.) Accordingly, we conclude that section 556 was intended to apply only to commercial advertising. As such it is not applicable to campaign signs of candidates for public office.3 **** 3 We do believe, however, that under proper circumstances section 556 can be constitutionally applied to commercial advertising. Commercial advertising has recently been brought under the umbrella of free speech protection. (See Central Hudson Gas & Elec. v. Public Serv. Commission (1980) 447 U.S. 557, 566.) Such advertising, however, may be regulated to advance a substantial governmental interest if such regulations are no more extensive than necessary to further that interest. (Ibid.) Initially, section 556 would have to be read together with other state or local regulations to determine whether a posting on public property was "without lawful permission." If so, then the regulations themselves would have to be analyzed to determine if they complied with all legal requirements as enunciated by the courts. We do note that under the current case law it appears that the government could constitutionally prohibit all commercial postings on all public property. (See Metromedia, Inc. v. City of San Diego (1980) 453 U.S. 490; City Council of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789; Sussli v. City of San Mateo (1981) 120 Cal.App.3d 1.) 5. 87-301

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4149959/

Order Michigan Supreme Court Lansing, Michigan March 3, 2017 Stephen J. Markman Chief Justice Robert P. Young, Jr., Brian K. Zahra 152035 Bridget M. McCormack David F. Viviano Richard H. Bernstein CITY OF HUNTINGTON WOODS and CITY Joan L. Larsen, OF PLEASANT RIDGE, Justices Plaintiffs/Counter-Defendants- Appellants, SC: 152035 v COA: 321414 Oakland CC: 2013-135842-CZ CITY OF OAK PARK, Defendant/Counter-Plaintiff- Appellee, and 45TH DISTRICT COURT, Defendant-Appellee. _________________________________________/ On order of the Court, having received the final report of the special mediator, Court of Appeals Chief Judge Michael J. Talbot, that the parties were unable to reach a settlement agreement, the briefing periods under MCR 7.312(E) and (H) shall begin to run from the date of this order. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 3, 2017 Clerk

01-03-2023

03-03-2017

https://www.courtlistener.com/api/rest/v3/opinions/1244806/

203 Mich. App. 69 (1993) 512 N.W.2d 49 In re FORFEITURE OF CASH AND GAMBLING PARAPHERNALIA (COUNTY OF SAGINAW v. CERGNUL) Docket No. 144004. Michigan Court of Appeals. Submitted May 4, 1993, at Lansing. Decided December 20, 1993, at 9:30 A.M. Michael D. Thomas, Prosecuting Attorney, and Edwin R. Brown, Assistant Prosecuting Attorney, for the petitioner. Professional Law Offices of Frank & Forster (by Stuart W. Hyvonen), for the respondent. Before: WAHLS, P.J., and SHEPHERD and CAVANAGH, JJ. PER CURIAM. Respondent, Frank Cergnul, appeals as of right from an order of the Saginaw Circuit Court that denied his motion for costs and attorney fees. We reverse and remand for additional findings. A large amount of cash and various items of property belonging to respondent were seized during a raid on a gambling establishment on January 4, 1991. The property was impounded. Almost four months later, no action had been taken by petitioner to institute a criminal prosecution or forfeiture proceedings. On April 23, 1991, respondent's counsel asked by letter for the return of respondent's property. No response was received. On May 2, 1991, respondent filed an action against the sheriff's department for the return of the cash and goods. On May 10, 1991, the Saginaw County Prosecutor filed a complaint and petition for forfeiture in the circuit court. The court issued an ex parte order prohibiting the transfer or disposal of *71 the property pending an adjudication hearing.[1] Respondent alleges that the complaint and order were never served upon him. On July 1, 1991, respondent moved to dissolve the order. On the day of the hearing to dissolve the order, petitioner moved to dismiss the action without prejudice, and the motion was granted. Respondent thereafter moved for costs and attorney fees pursuant to MCR 2.114, MCR 2.625, and MCL 600.2591; MSA 27A.2591. The motion was denied by order, and respondent now appeals that order. MCR 2.114(D) provides that the signature of an attorney or party constitutes a certification that (1) the attorney or party has read the pleading; (2) to the best of the attorney's or party's knowledge, information, and belief formed after reasonable inquiry, the pleading is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and (3) the pleading is not interposed for any improper purpose. If a pleading is signed in violation of the rule, the court shall impose an appropriate sanction, including attorney fees. MCR 2.114(E). MCL 750.308; MSA 28.540 authorizes the issuance of a search warrant once probable cause is established that any place is being used for the registering of bets upon any race, game, or contest. The statute also authorizes the seizure of gambling apparatus. MCL 750.308a; MSA 28.540(1) allows a court to order the destruction or other disposition of any articles of property lawfully seized. Michigan ex rel Comm'r of State Police v One Helix Game, 122 Mich. App. 148; 333 NW2d 24 (1982). Respondent raised the issue that petitioner's *72 filing of the forfeiture action four months and six days after the seizure of the property was untimely and, therefore, violated MCR 2.114. Petitioner responded that the filing was not untimely because the applicable sections of the gambling act do not specify a time limit for filing forfeiture complaints. Thus, the petitioner believes he may file a forfeiture action at any time. We strongly disagree with the petitioner's position. In Dep't of Natural Resources v Parish, 71 Mich. App. 745; 249 NW2d 163 (1976), the DNR filed a complaint against the defendant and others for condemnation of boats, nets, and fish that had been seized six months earlier pursuant to MCL 300.14; MSA 13.1224. The statute did not require the DNR to move against the property seized within any particular period. To preserve the constitutionality of the statute and the defendant's due process rights under both US Const Am XIV, and Const 1963, art 1, § 17, this Court imposed a requirement that condemnation proceedings must be promptly commenced. Parish, supra at 749-750. In determining whether an action has been promptly filed, the trial court must consider the following factors: (1) the lapse of time between seizure and filing of the complaint, (2) the reason for the delay, (3) the resulting prejudice to the defendant, and (4) the nature of the property seized. Id. at 750. We likewise impose the same restriction upon the filing of forfeiture actions brought pursuant to MCL 750.308a; MSA 28.540(1). Remand is necessary because the trial court did not make any findings despite the fact that the respondent raised this issue below. This Court would be inclined to find the lapse of time excessive in light of the actions taken by respondent before the filing of the *73 forfeiture petition. Moreover, there appears to be no excuse for the delay. The record, however, does not contain an explanation from the petitioner. In reviewing the record, we also note that the trial court indicated that it had discretion to decide whether sanctions should be imposed. This was clear error. The imposition of sanctions under MCR 2.114 is mandatory upon a finding that a pleading was signed in violation of the court rule. Contel Systems Corp v Gores, 183 Mich. App. 706, 710-711; 455 NW2d 398 (1990). There is no discretion for the trial court to exercise in determining if a sanction should be awarded. Id. Thus, the trial court upon remand must also determine whether the petitioner violated MCR 2.114, including whether he filed the forfeiture complaint for an improper purpose.[2] If the court rule was violated, the court must impose sanctions. Finally, we find that respondent's remaining issues have no merit. Reversed and remanded. We do not retain jurisdiction. NOTES [1] The ex parte order was requested pursuant to MCL 333.7523(2); MSA 14.15(7523)(2). Although the forfeiture action was not brought under the controlled substances act, the court issued the order. [2] It is unclear from the record whether the trial court found that the court rule was not violated or whether it found that in its discretion sanctions were not appropriate although the court rule was violated.

01-03-2023

10-30-2013

https://www.courtlistener.com/api/rest/v3/opinions/8669415/

By Judge Jeffrey W. Parker This matter comes before the Court on a Petition for Appeal filed by Navistar, Inc., pursuant to the Virginia Administrative Process Act, § 2.2-4000, et seq., and Part Two-A of the Rules of the Supreme Court of Virginia. Navistar is appealing the Final Agency Decision of the Commissioner of Motor Vehicles rendered on March 30, 2009, in his Hearing Opinion. The Commissioner based his decision upon the recorded transcript of the hearing and the Recommended Hearing Decision of the Hearing Officer. As a result, the charge back for warranty services by Appellant, Navistar, against Appellee, New Baltimore Garage, was disallowed. For the reasons set forth herein, this decision is reversed and remanded to the Commissioner for further findings consistent with this Opinion. Background This proceeding was initiated by New Baltimore Garage, Inc. (NBG), who filed a Request for Hearing with the Department of Motor Vehicles (DMV) in July 2008. Pursuant to Va. Code § 2.2-4020, a formal *111hearing was conducted before a Hearing Officer (designated by the DMV) on October 14, 2008. Upon the Hearing Officer’s issuing her Recommended Hearing Decision on January 12, 2009, Navistar timely filed its exceptions with the Commissioner of the Department of Motor Vehicles. On March 30, 2009, the Commissioner issued his decision, generally affirming the conclusions of the Hearing Officer. This appeal by Navistar followed. Navistar is a manufacturer and distributor of International brand trucks. NBG is a franchise of Navistar, authorized and licensed to do warranty service and repair work on International vehicles. NBG also performs service and repair work for other retail customers on vehicles not under warranty by Navistar. During the time in question, Navistar and NBG were parties to a Dealer Sales/Maintenance Agreement, which provided, inter alia, that, when NBG performed warranty repair work, Navistar would compensate NBG “according to Navistar’s warranty adjustment polices in effect at the time.” (Recommended Hearing Decision, p. 5.) These policies were set forth in a Policies Manual, which further provided that the servicing facility would charge Navistar “in an amount equal to the servicing location’s approved warranty labor reimbursement rate (not to exceed posted door rates . . .) multiplied by the specified amount of time allowable.. ..” Id. On May 12, 2008, a Navistar representative made a “secret shop call” to NBG inquiring about their “customer rate.” An unidentified person at NBG reportedly quoted the rate at $90 per hour. The Navistar representative then asked to speak to the Service Manager, who did not deny the $90 per hour quote, but stated they were “looking to raise it.” (Tr. 412.) At that time NBG was charging Navistar $102 per hour for warranty work, a rate previously approved by Navistar. Following this “blind call” conversation, Navistar undertook a “charge back analysis” taking the position that it had been overcharged for warranty work by $12 per hour, that being the difference between the $102 per hour charged to Navistar and the $90 per hour charged to non-warranty retail customers. In calculating the charge back amount, Navistar determined how many hours of warranty labor NBG had submitted (for payment) from May 19, 2007 to May 20, 2008; it then multiplied those hours, 4,777.8, by $12 per hour for a total of $57,333.60. Navistar claimed this amount to be an overpayment in violation of the contract and charged this back to NBG. Additionally, a chargeback of $62,938.18 was *112calculated after an audit was performed at the Garage. However, the parties settled this issue, and this is not before the Court in this appeal. As a result of the charge back of $57,333.60 and other issues stemming from this chargeback NBG submitted the Request for Hearing to the DMV. NBG submitted an Amended Request for Hearing seeking a denial of the additional chargeback of $62,938.18 and a decision confirming that the approved rates of $102 and $105 per hour (depending upon when rendered) were “reasonable compensation.” NBG also sought attorney’s fees pursuant to Va. Code § 46.2-1573.01. As those issues were not addressed in the Opinion of the Hearing Officer or by the Commissioner, nor identified in the appeal, they will not be addressed here. NBG has alleged that Ya. Code § 46.2-1571 protects motor vehicle dealers from manufacturers and producers unilaterally reducing compensation for warranty repair and service work to an amount below that charged by dealers for service work to retail customers. NBG further stated that it charged Navistar no more than what it billed retail customers, when the actual time expended to repair was factored in. In support of this position, NBG submitted expert testimony from a Certified Public Accountant who did a comparative analysis of warranty and non-warranty billings. This covered 234 repair jobs over the month of April 2008. As a part of its warranty contract with NBG, Navistar required NBG to use a Navistar Standard Repair Time Schedule in calculating the labor charges submitted for payment on warranty work. According to the CPA, the utilization of this schedule based on allotted time caused the billings submitted to Navistar to be for less time than the warranty work actually took, “resulting in an hourly billed rate [to Navistar] of less than the average for non-warranty work.” Tr. p. 100. Other variables were factored into the calculation by the expert, including partial warranty repairs, discounted rates for certain customers, and errors in the spread sheets. Evidence was also received that the rate “posted” by NBG was equal to the dealer’s approved labor rate charged to Navistar. Based upon this fact, the Hearing Officer concluded there was no difference in the two rates and found the charge back to be invalid. After the hearing was concluded, the Hearing Officer recommended in her Report that the charge backs be denied. Upon review, the Commissioner agreed and issued his Opinion accordingly. *113 Analysis In cases involving the Virginia Administrative Process Act, this Court sits purely as an appellate court. School Board v. Nicely, 12 Va. App. 1051, 1061, 408 S.E.2d 545 (1991). However, the standard of review is somewhat different from that typically applied by appellate courts to circuit courts. Here the Court must scrutinize the record to determine whether substantial evidence exists to support the agency’s decision. Tidewater v. Buttery, 8 Va. App. 380, 386, 382 S.E.2d 288 (1989). “Substantial evidence is only such relevant evidence as a reasonable mind might accept to support a conclusion. ” Virginia Real Estate Corp. v. Bias, 226 Va. 264, 269, 308 S.E.2d 123. “Although decisions by Administrative Agencies are given deference when they fall within an area of the Agency’s special competence, issues of statutory interpretation fall outside those areas and are not entitled to deference on judicial review.” Virginia Dept. of Health v. NRV Real Estate, 278 Va. 181, 185, 677 S.E.2d 276 (2009) (citation omitted). NBG filed for relief pursuant to Va. Code § 46.2-1571. That statute provides in pertinent part that “each motor vehicle manufacturer ... compensate the dealer for warranty parts, service ... as follows: (1) Compensation of a dealer for warranty parts, service, and diagnostic work shall not be less than the amounts charged by the dealer for the ... parts, service, and diagnostic work to retail customers.... (Emphasis added.) NBG had the burden of proof to show that Navistar’s charge back resulted in less total compensation to NBG then what it was receiving from its non-warranty customers. Va. Code § 2.2-4020(C). NBG presented credible coherent evidence that not only was Navistar not charged more for service work, it was actually charged less per hour than NBG’s non-warranty retail customers before the charge back was calculated. This was based upon a computational formula which took the actual hourly rate (versus the allowed rate) multiplied by the hours billed. However, the Commissioner chose not to base his decision on consideration of this evidence, but instead relied upon an advertised “posted rate” (as defined in the contract between the parties) as a sufficient legal basis to void the charge back. The difficulty with this conclusion is it ignores the essence of *114the proceeding, which is statutory, and focuses instead on the contract, which is only a component of the dispute. The Appellant, Navistar, contends that the Commissioner failed to comply with the requirements of Va. Code § 46.2-1571. Navistar correctly argues that, in order to invalidate the charge back, the Commissioner must first make a factual determination of the actual compensation to the dealer on both warranty and non-warranty work. Absent such an explicit factual finding, which provides a basis for comparison consistent with the Statute, the decision cannot stand. Navistar cites Volkswagen of Am. v. Smit, 266 Va. 444, 587 S.E.2d 526 (2003), appeal after remand, 52 Va. App. 571, 665 S.E.2d 848 (2008), for this proposition. In Volkswagen, the Circuit Court and the Court of Appeals were both reversed for affirming an Agency finding declaring the manufacturer to be in violation of Va. Code § 46.2-1569(7). That particular Code Section required a vehicle manufacturer, upon written request of the vehicle dealer, to ship to the dealer new vehicles “of each make, series, and model needed by the dealer to receive a percentage related to the total of new vehicle production importation currently being achieved nationally by each make, series, and model covered under the franchise.” Clearly, this provision requires some specific mathematical analysis in order to determine whether the dealer has complied with the percentage requirement statutorily identified. In contrast, compliance by the manufacturer, for the benefit of the dealer, with the terms for compensation set forth in § 46.2-1571, does not require so complex an analysis. Nonetheless, the Commissioner must make on the record a finding consistent with the requirements of the statute. The contract between the parties, and specifically the term providing that the warranty labor rate should not exceed the dealer’s “posted” door rate, is relevant to the issue of compensation, but not a sufficient basis alone upon which to determine the actual compensation rate. For purposes of compliance with § 46.2-1571, the ultimate legal issue in this case is the actual rate of compensation, which takes into account the calculation of hourly rate times hours expended on the job. Neither the Commissioner nor the Hearing Officer ever made an explicit factual finding on this issue. Without that finding, no legitimate comparison between the two rates can be made, nor can a legal conclusion on the ultimate issue in this case be reached. *115The Court searched in vain for this finding in the Commissioner’s Final Agency Decision. The Court recognizes the difficulty associated with presenting and finding proof on this issue. However, as suggested, the Court does not believe the level of detail necessary to make this finding is as involved as it was in the Volkswagen case, due to the difference in the statutory language of the two statutes. The NBG expert provided detailed testimony on the issue of compensation. It is up to the Hearing Officer to determine if this testimony was sufficient to justify a finding that the compensation to the dealer from Navistar for warranty work {before the chargeback) was not greater than the amount received from retail customers for non-warranty work. This finding must be based upon more than a “posted rate” displayed in the dealers’ office; it must be based upon the billing rate times the labor hours charged for comparable work. Whether the Hearing Officer needs to receive further testimony or argument will be left to the Commissioner’s discretion. This matter will be remanded to the Commissioner for further review consistent with this Opinion.

01-03-2023

11-24-2022

https://www.courtlistener.com/api/rest/v3/opinions/4023503/

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ ROBERT M. MILLER, Petitioner v. FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent ______________________ 2016-1137 ______________________ Petition for review of the Merit Systems Protection Board in No. SF-4324-14-0598-I-3. ______________________ Decided: August 11, 2016 ______________________ ROBERT M. MILLER, Fairfax, VA, pro se. CORINNE ANNE NIOSI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., CLAUDIA BURKE; KATHRYN R. NORCROSS, MICHELLE OGNIBENE, Federal Deposit Insurance Corporation, Arlington, VA. ______________________ 2 MILLER v. FDIC Before PROST, Chief Judge, CHEN, and STOLL, Circuit Judges. PER CURIAM. Robert Miller appeals from a decision of the Merit Systems Protection Board (“Board”) denying his request for corrective action under the Uniformed Services Em- ployment and Reemployment Rights Act (USERRA). Miller v. Fed. Deposit Ins. Corp., No. SF-4324-14-0598-I-3 (M.S.P.B. July 24, 2015). For the reasons below, we affirm. 1 BACKGROUND Dr. Miller is a preference-eligible disabled veteran and was employed as a Financial Analyst with the Divi- sion of Insurance and Research of the Federal Deposit Insurance Corporation (“agency”) at the time of his non- selection for a Financial Economist position with the agency. When Dr. Miller expressed interest in applying for the Financial Economist position, he was informed that the vacancy announcement for the position had closed. Dr. Miller informed the agency that his prefer- ence-eligible status entitled him to apply to the closed position. The agency then forwarded him an application packet and requested he return the completed application by the end of the next business day. The application included a questionnaire regarding the applicant’s quali- fications; the vacancy announcement explained that the applicant’s resume must substantiate responses to the questionnaire. 1 Dr. Miller filed a motion seeking to supplement the record and seeking sanctions against the agency. Miller v. Fed. Deposit Ins. Corp., No. 16-1137, Dkt. No. 43. We grant-in-part and deny-in-part. We grant Dr. Miller’s request to supplement the record but deny his request for sanctions. MILLER v. FDIC 3 The agency reviewed applications for the position and placed applicants into categories A–C. Within each category, preference-eligible veterans would receive selection priority. Dr. Lee, a subject matter expert for the agency, reviewed Dr. Miller’s application. Per Dr. Lee’s assessment, several of Dr. Miller’s questionnaire respons- es were not substantiated by his resume. As such, Dr. Miller’s responses were downgraded, and the agency’s scoring algorithm placed Dr. Miller in category B. Only applicants in category A were referred to the selecting official. Dr. Miller sought information from the agency regard- ing the basis for his category B placement. Dissatisfied with the agency’s response, Dr. Miller filed a USERRA appeal with the Board. The administrative judge (“AJ”) found that Dr. Miller failed to meet his burden to show, by a preponderance of evidence, that the agency discriminated against him on the basis of his military service in connection with his non-selection. Dr. Miller did not seek review by the full Board, and the AJ’s decision became final. DISCUSSION The scope of our review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). USERRA prohibits employers from discriminating against employ- ees or prospective employees on the basis of their military service. 38 U.S.C. § 4311(a). In relevant part, it provides: A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in 4 MILLER v. FDIC a uniformed service shall not be denied initial employment, reemployment, retention in em- ployment, promotion, or any benefit of employ- ment by an employer on the basis of that membership, application for membership, perfor- mance of service, application for service, or obliga- tion. Id. USERRA discrimination claims are analyzed under a burden-shifting framework. Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). Under this frame- work, an individual who makes a USERRA discrimination claim bears the initial burden to show, by a preponder- ance of evidence, that his military service was a substan- tial or motivating factor in the adverse employment action. Id. This burden can be met by either direct or circumstantial evidence: Discriminatory motivation under the USERRA may be reasonably inferred from a variety of fac- tors, including proximity in time between the em- ployee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employ- er, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees com- pared to other employees with similar work rec- ords or offenses. Id. at 1014. “In determining whether the employee has proven that his protected status was part of the motiva- tion for the agency’s conduct, all record evidence may be considered, including the agency’s explanation for the actions taken.” Id. If this initial burden is satisfied by the appellant, the burden shifts to the employer to show, by a preponderance of evidence, that the employer would MILLER v. FDIC 5 have taken the same action for a valid reason. Id. at 1013. Dr. Miller challenges the Board’s procedural rulings and the merits of its conclusions, and he alleges bias of the AJ. Dr. Miller also supplemented the record with newly-discovered documents. We address each of these issues in turn. A. Dr. Miller alleges several procedural errors by the AJ, including refusing to allow expert testimony, refusing to compel production of applications from veterans who were also placed in category B, and admitting into evidence applications of non-veterans Dr. Lee deemed ineligible. We find that the AJ did not abuse his discretion in mak- ing these determinations. First, regarding the AJ’s refusal to allow testimony from Dr. Miller’s proffered expert, the AJ explained that Dr. Miller’s proffered expert did not have sufficient exper- tise with respect to the qualifications of candidates for the position at issue. Dr. Miller does not demonstrate that the expert possessed expertise in governmental hiring processes or the particular Financial Economist position at issue. As such, the AJ did not abuse his discretion by precluding testimony from the expert. With respect to the AJ’s denial of Dr. Miller’s motion to compel production of applications from other veterans in category B, the AJ found these applications were not relevant. Specifically, the AJ determined that because Dr. Lee reviewed Dr. Miller’s application, only applica- tions reviewed by Dr. Lee were relevant to Dr. Miller’s discrimination claim. As Dr. Lee did not review the applications that were the subject of the motion to compel, the AJ refused to compel their production. Despite Dr. Miller’s arguments to the contrary, the AJ did not abuse his discretion by finding only applications reviewed 6 MILLER v. FDIC by Dr. Lee relevant to Dr. Miller’s appeal, which was based on alleged discrimination by Dr. Lee. Dr. Miller also challenges the AJ’s decision allowing the agency to admit evidence that Dr. Lee deemed several non-veterans ineligible for the position. Dr. Miller asserts that this evidence was irrelevant because, unlike him, these non-veterans lacked basic qualifications for the position, rendering them ineligible. While Dr. Miller’s arguments may go to the weight this evidence should be given, the AJ’s decision to admit the evidence was not an abuse of discretion. B. We next consider Dr. Miller’s argument that he met his burden of showing that his non-selection was motivat- ed by discrimination. Although Dr. Miller raises numer- ous disputes with the merits of the AJ’s findings, we find that substantial evidence supports the ultimate conclu- sion that Dr. Miller failed to meet his burden of proof. According to Dr. Miller, the agency discriminated against him for exercising his right as a disabled veteran to apply late for the Financial Economist position. As support, he points to the closeness in time between exer- cising his right to apply late and Dr. Lee’s discounting of some of his questionnaire responses, asserting a connec- tion between those two actions. But the AJ explained that there was no evidence that Dr. Lee was aware that Dr. Miller had applied late based on his disabled veteran status. While Dr. Miller posits reasons why Dr. Lee could have known the reason for his late application, he con- cedes the lack of evidence in the record. Petitioner’s Br. 18–19. Dr. Miller also points to the agency’s request that he submit his completed application within one business day of receiving the application packet, impeding his ability to submit a more thorough application. But Dr. Miller does not dispute that he had a month’s notice of MILLER v. FDIC 7 the vacancy, asserting only that he initially lacked inter- est in the position. Dr. Miller also argues that the AJ erred in weighing the evidence. He asserts the AJ weighed the following evidence too heavily: (1) the fact that the agency ultimate- ly selected a veteran for the position; (2) testimony from certain individuals involved in the review of his applica- tion that they had ties to and positive views of the mili- tary; and (3) the fact that Dr. Lee deemed ineligible several non-veterans lacking basic qualifications for the position. We agree with the AJ that these are all relevant considerations in a USERRA appeal, and weigh in favor of the AJ’s determination that Dr. Miller’s non-selection was not motivated by discrimination prohibited by USERRA. Dr. Miller next challenges Dr. Lee’s rationale for dis- crediting some of his responses to the questionnaire while crediting those of certain non-veterans. He argues that Dr. Lee failed to credit certain experience she found unsupported by his resume, yet credited other applicants with experience not well supported by their resumes. In Dr. Miller’s view, Dr. Lee’s evaluation of his and other applications was so inconsistent and illogical that the only reasonable conclusion is that Dr. Lee discriminated against him because he is a veteran. The AJ considered this argument and determined, however, that Dr. Lee provided a reasoned basis for her evaluations. Specifical- ly, the AJ concluded that to the extent Dr. Lee treated applicants differently, it was due to her own professional background and expertise. When applicants had profes- sional and educational experience similar to Dr. Lee’s, she was more willing to infer relevant experience from their resumes. For example, applicants who completed their doctoral studies in the field of Labor Economics, the same field studied by Dr. Lee, were at times credited with experience not explicitly detailed in their resumes. While Dr. Miller clearly disagrees with the accuracy and con- sistency of Dr. Lee’s assessments, this evidence does not 8 MILLER v. FDIC demonstrate that Dr. Lee discriminated based on Dr. Miller’s military service. Finally, Dr. Miller disputes the AJ’s credibility de- terminations regarding agency witnesses. But “an evalu- ation of witness credibility is within the discretion of the Board” and in general such credibility determinations “are ‘virtually unreviewable’ on appeal.” Kahn v. Dep’t of Justice, 618 F.3d 1306, 1313 (Fed. Cir. 2010) (quoting King v. Dep’t of Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998)). We do not find the AJ’s credibility determinations arbitrary or capricious. C. Dr. Miller next claims the AJ who presided over his appeal exhibited bias against him. Dr. Miller asserts bias because the same AJ presided over all six of his appeals to the Board and ruled against him in each one. The AJ’s bias, according to Dr. Miller, is further demonstrated by the AJ’s numerous rulings against Dr. Miller on proce- dural motions. To show bias, an appellant must meet a high standard: [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for bias or partiality mo- tion unless they display a deep-seated favoritism or antagonism that would make fair judgment im- possible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality chal- lenge. Beiber v. Dep’t of Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002) (alteration in original) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). While we appreciate Dr. Miller’s frustration resulting from his lack of success MILLER v. FDIC 9 in appeals to the Board, we detect no reasonable basis for finding the AJ’s decisions in this case reflect bias against Dr. Miller. D. Finally, Dr. Miller has supplemented the record with recently acquired documents. While we have considered these documents, we find they do not establish any error in the Board’s decision. First, an email exchange and agency scoring rubric confirm that Dr. Miller would have been placed in category A if his questionnaire responses had not been downgraded by Dr. Lee. Because the AJ assumed as much, the confirmation provided in these documents has no impact on the AJ’s analysis and conclu- sions. Dr. Miller also supplements the record with the application files of other veterans that were placed in category B. But because there is no evidence these appli- cations were reviewed by Dr. Lee, the basis for their placement in category B is not probative of the reasons Dr. Lee downgraded Dr. Miller’s application. CONCLUSION We have considered Dr. Miller’s remaining arguments and find them unconvincing. The AJ did not abuse his discretion in his procedural rulings. The AJ’s determina- tion that Dr. Miller did not meet his burden of showing discrimination toward his military service or status as a disabled veteran was a motivating factor in his non- selection is supported by substantial evidence and is not arbitrary or capricious. Because Dr. Miller failed to meet his burden, we need not consider whether the agency would have taken the same action for a valid reason. The decision of the Board is therefore affirmed. AFFIRMED COSTS No costs.

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4142798/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Honorable Forrbstsr Senoook, Page 2 Xn rim of the language matained In Article 8, %otian 20 of the Constitution an4 tii eeli3 Artfale 7166, it lo.our opinion that the term wtrue and full valueP a6 used in ths first seotion o? Article 7165, hvleed Cfrll :Ttatutea, meem the ARFAO thing as "actuel aesh velueP aa ueed In Artlale 7166 and "fair oash market ralue" (LB used in ml4 Constitutional pre~leiens~ In a oountg where property is required to be arseased at 100% of Its adtual cash value, eaoh share in a national bank rbould be taxed only for the dlffarenas between ita aotual cash ralua and the proportionate amount per share at which the bank'e real estate is aseesced, a6 prwided by Article 7166. We enclose copy or out ~plnion 20. O--21*06whloh inbiaates the method of arrivin,~;at the peopar valuation of such ahares it a aountp where the 3oar4 of Equdiisetion systemetlaally aBneasei3 property at a peroantage 16sa then tht, full value. GB belleve this will eufficiently ansmr your questions. Your8 rsry Oruly

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127317/

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016). STATE OF MINNESOTA IN COURT OF APPEALS A15-2092 State of Minnesota, Respondent, vs. Jesse Louis Puttbrese, Appellant. Filed February 13, 2017 Affirmed Peterson, Judge Chisago County District Court File No. 13-CR-14-265 Lori Swanson, Attorney General, St. Paul, Minnesota; and Janet Reiter, Chisago County Attorney, David W. Hemming, Assistant County Attorney, Center City, Minnesota (for respondent) Mark D. Kelly, St. Paul, Minnesota (for appellant) Considered and decided by Peterson, Presiding Judge; Hooten, Judge; and Smith, John, Judge.* * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION PETERSON, Judge In this appeal from a conviction for possessing methamphetamine, appellant argues that the district court erred in denying his suppression motion because the arresting officer illegally expanded the scope and duration of the traffic stop of the pick-up truck in which appellant was a passenger. We affirm. FACTS At about 1:30 p.m., Minnesota State Trooper Derrick Hagen was parked in the median of Interstate 35 while on patrol in Chisago County. He had a certified narcotics- detection dog with him, and he had received information that one of two vehicles would be traveling northbound on Interstate 35 from the St. Paul area to Chisago County and would possibly be transporting narcotics. Hagen was told that the vehicle would be either a red pick-up truck or a passenger vehicle. Hagen saw a red Ford F-150 pick-up truck traveling north and began following it. He followed the vehicle for two or three miles and saw it cross the fog line repeatedly and the center line at least twice. He ran a registration check on the truck and learned that the truck’s registered owner was a woman whose driver’s license had been revoked. A woman was driving the truck. Hagen activated his squad car’s emergency lights, and he testified at the omnibus hearing that it took the truck an “unordinary amount of time” to come to a complete stop. As the truck slowed down, Hagen saw the front-seat passenger bend down and reach forward. Based on his training and experience, Hagen was concerned because “[h]aving 2 the information of the possibility of narcotics also unknowing if they are reaching for a possible weapon or what the actual reason for, I guess, making those movements as they are being pulled over – just the timing.” Hagen approached the passenger side of the truck, and Minnesota State Trooper Brett Westbrook, who had arrived at the scene, approached the driver’s side. The driver was identified by her Minnesota driver’s license, and the passenger was later identified as appellant Jesse Louis Puttbrese. The driver was not the truck’s registered owner. Hagen testified that her arm was shaking “uncontrollably” when she handed him her driver’s license, that she had a visible stomach pulse as she was seated behind the steering wheel, and that she was very talkative. Hagen considered this behavior significant because “[h]aving dealt with individuals in the past in various circumstances, body language, behaviors, things to keep busy, or they may feel by keeping busy it distracts either how they are feeling or me as the officer or any other responding officer as things are okay.” Hagen testified that appellant appeared very disheveled and he was very fidgety with his hands. He was holding a pen that he continually spun around. Hagen saw what he described as “pick marks” on appellant’s face, and appellant’s eyes were sunken with dilated pupils. Based on his training and experience, Hagen recognized these traits as indicators of stimulant use. When Hagen asked appellant why he reached forward when the truck was being pulled over, appellant said that he jolted forward when the driver braked hard. Hagen testified that this explanation was inconsistent with his observations of the truck as it stopped. 3 Hagen asked the driver and appellant what they were up to, and appellant said that they were going to Mora. Hagen asked the driver to step out of the truck because appellant would interject when Hagen tried to speak with the driver; Hagen also wanted to get insurance information from the driver. Hagen took the driver back to his squad car. The driver told Hagen that she and appellant were going to Mora to visit her uncle in the hospital, but, a short time later, she said that they were going to pick up her uncle and bring him to the hospital. She also said that appellant had to be back in St. Paul for work at three o’clock. Hagen gave the driver a warning for failing to keep the vehicle in its traffic lane and for not having proof of insurance. While Hagen spoke with the driver, Westbrook spoke with appellant. Westbrook saw that appellant was fidgety and nervous and unable to sit still. Westbrook described appellant as having sunken eyes and sores on his face. During the conversation, which Westbrook described as a casual conversation about the day’s events and ownership of the truck, appellant became increasingly nervous. Westbrook testified that, in a routine traffic stop, nervousness typically lessens over time. Based on his training and experience, it appeared to Westbrook that appellant was using some type of substance, possibly a narcotic or stimulant. Hagen returned to the truck to talk to appellant, and appellant said that they were going to Mora to borrow money from the driver’s uncle. Appellant did not say anything about the uncle going to or being in the hospital. When Hagen asked about their plans, appellant said, “[W]e’re not doing anything wrong.” 4 Hagen returned to his patrol car to talk to the driver about the warning he issued for her driving conduct, and he told her that things were not adding up for him. Hagen asked the driver if she would consent to the truck being searched, and she did not give a definitive answer. She seemed to be trying to evade the question. When asked whether she was responsible for items in the truck, the driver said that her purse was in there. Hagen explained to her that he was going to have his drug-detection dog walk around the truck and that the dog would alert to the odor of narcotics in the truck. The driver indicated that she did not believe that the dog would alert when walking around the truck. Hagen testified that he decided to walk around the truck with the dog because he believed that appellant and the driver were involved in criminal activity. Hagen testified that this belief was based on [m]y observations from the time I turned my lights on, the behavior of both occupants. The passenger reaching for not knowing what and not providing a seemingly explanation that actually made sense. The conflicting stories as to where they were headed and why they were headed there and signs of apparent drug use on the passenger. The driver not wanting to claim responsibility for the contents of the vehicle when asked – not getting a definitive, “No, there’s nothing illegal.” Hagen testified that, in his training and experience, it was significant that a person would make a long trip, stop only briefly, and then turn around and return to the original location. Hagen explained that this behavior was significant because drug sales last a short time because people do not want to be caught. He also testified that, “to have the stories not add up as a reason and not being able to make a deadline as to having to come back for work is very odd.” 5 Because state patrol policy required that a vehicle have no occupants when a dog sniff is performed, Hagen asked appellant to get out of the truck. Despite being repeatedly asked to get out of the truck, appellant stayed in the truck. Hagen opened the passenger door and saw in plain view a knife under appellant’s right thigh. After securing the knife, Hagen removed appellant’s seatbelt and saw a type of glass pipe commonly used for smoking methamphetamine on the seat next to appellant’s left leg. Appellant physically resisted the troopers’ efforts to remove him from the truck, but eventually the troopers gained control of him and handcuffed him. Before placing appellant in a squad car, Westbrook searched him and found a large baggie that contained 51 grams of methamphetamine. Appellant was charged with two counts of first-degree controlled-substance crime, possession and possession with intent to sell. Appellant moved to suppress the evidence discovered during the searches of his person and the truck, arguing that the initial stop was invalid and that the officers illegally expanded the scope and duration of the stop. The district court denied appellant’s motion. The parties submitted the case to the district court for decision under Minn. R. Crim. P. 26.01, subd. 4. The court found appellant guilty of the possession charge and, at the state’s request, dismissed the possession-with-intent-to-sell charge. This appeal followed. DECISION “When reviewing a district court’s pretrial order on a motion to suppress evidence, [an appellate court] review[s] the district court’s factual findings under a clearly erroneous standard and the district court’s legal determinations de novo.” State v. Gauster, 752 6 N.W.2d 496, 502 (Minn. 2008) (quotation omitted). The existence of a reasonable suspicion to support a limited investigatory stop is a question of law, which is reviewed de novo. State v. Lugo, 887 N.W.2d 476, 484, 487 (Minn. 2016). In Minnesota, the principles and framework of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), apply when evaluating the reasonableness of seizures during traffic stops even when a minor law has been violated. State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004). “A Terry analysis involves a dual inquiry. First, we ask whether the stop was justified at its inception. Second, we ask whether the actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop in the first place.” Id. at 364 (citations omitted). Because appellant does not challenge on appeal the initial stop of the truck, we address the second prong of the inquiry. The second Terry prong constrains the scope and methods of a search or seizure. An initially valid stop may become invalid if it becomes intolerable in its intensity or scope. Thus, each incremental intrusion during a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the stop permissible. An intrusion not closely related to the initial justification for the search or seizure is invalid under article I, section 10 [of the Minnesota Constitution] unless there is independent probable cause or reasonableness to justify that particular intrusion. Id. (citations and quotations omitted). In essence, Article I, Section 10 of the Minnesota Constitution requires that each incremental intrusion during a traffic stop be tied to and justified by one of the following: (1) the original legitimate purpose of the stop, (2) independent probable cause, or (3) reasonableness, as defined in Terry. Furthermore, the basis for the intrusion must be individualized to the person toward whom the intrusion is directed. 7 Id. at 365. “To be reasonable, the basis must satisfy an objective test: ‛would the facts available to the officer at the moment of the seizure * * * warrant a man of reasonable caution in the belief that the action taken was appropriate.’” Id. at 364 (quoting Terry, 392 U.S. at 21-22, 88 S. Ct. 1868, 1880. Expansion of scope and duration of stop Appellant argues that Hagen impermissibly expanded the scope of the stop when he re-approached the truck after speaking with the driver in his squad car. Appellant contends that Hagen re-approached the truck because the occupants appeared nervous and because the stopped vehicle was a pick-up truck and, therefore, it was possibly linked to narcotics sales. This suspicion, appellant contends, was not objectively reasonable. But the district court expressly explained that, despite appellant’s insistence that the expansion of the stop depended on the tip the troopers received about a pick-up truck transporting narcotics, the court did not rely on the tip as a basis for finding reasonable suspicion. Instead, the district court relied on Hagen’s observation that appellant made a furtive movement before the truck stopped, appellant’s explanation for his action was not consistent with Hagen’s observations, and appellant showed signs of being under the influence of a stimulant or narcotic. Also, the driver appeared nervous; her arm shook uncontrollably, she had a visible stomach pulse, and she was extremely talkative. These facts were all noted at the beginning of the stop and justified continuing the investigation. “[B]y virtue of the special training they receive, police officers articulating a reasonable suspicion may make inferences and deductions that might well elude an untrained person.” State v. Flowers, 734 N.W.2d 239, 251-52 (Minn. 2007). “Law 8 enforcement may continue the detention as long as the reasonable suspicion for the detention remains provided they act diligently and reasonably.” State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (quotation omitted). “[I]nnocent factors in their totality, combined with the investigating officer’s experience in apprehending drug traffickers, can be sufficient bases for finding reasonable suspicion.” State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (quotation omitted); see also State v. Smith, 814 N.W.2d 346, 352, 354 (Minn. 2012) (stating that driver’s “violent shaking” that appeared to be caused by nervousness and “evasive explanation that he suffer[ed] from a lifelong undiagnosed medical condition” were sufficient to give rise to a reasonable, articulable suspicion and noting manner in which driver’s nervousness impacted his physical condition was distinguishable from other cases where nervousness was determined to be insufficient). As the investigation continued, the driver gave two conflicting stories about her trip to Mora, appellant gave a third, and their time frame for traveling to Mora and getting back to St. Paul allowed for only a brief stop in Mora. Appellant became increasingly nervous during a conversation with Westbrook about the day’s events, behavior that Westbrook testified is not typical during a routine traffic stop. Hagen then asked the driver for consent to search the truck. When the driver did not give a definitive answer or take responsibility for items in the truck, Hagen decided to conduct the dog sniff. The opinions that appellant relies on to argue that Hagen was not justified in asking for consent to search the truck and deciding to conduct the dog sniff involved nervous or suspicious behavior but no conduct that indicated illegal drug or other criminal activity. 9 See State v. Burbach, 706 N.W.2d 484, 489-90 (Minn. 2005) (concluding that a tip unsupported by evidence of reliability and a speeding violation, combined with driver’s nervousness, were insufficient to support a reasonable, articulable suspicion of illegal drug activity); State v. Syhavong, 661 N.W.2d 278, 282 (Minn. App. 2003) (“While an officer’s perception of an individual’s nervousness may contribute to an officer’s reasonable suspicion, nervousness is not sufficient by itself and must be coupled with other particularized and objective facts.”); Wiegand, 645 N.W.2d at 137 (concluding that dog sniff of a vehicle was not justified when officer believed that driver was acting suspiciously but did not suspect that driver was under the influence of drugs). In addition to the nervous behavior of both appellant and the driver, appellant bent down and reached forward as the truck slowly came to a stop, appellant’s appearance indicated to the troopers that he was under the influence of a narcotic or stimulant, and appellant and the driver told different stories about what they were doing. The totality of these circumstances gave rise to a reasonable suspicion of illegal drug activity and justified Hagen’s decision to have his drug-detection dog walk around the truck. Therefore, the district court did not err in denying appellant’s motion to suppress the evidence discovered in the truck and on his person. Because the initial stop and the expansion of the stop were legal, we need not address appellant’s argument that the district court erred when it determined that, if the initial stop and the expansion of the stop had not been legal, appellant’s resistance to the request that he get out of the truck purged the taint of any prior illegality. Affirmed. 10

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127325/

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016). STATE OF MINNESOTA IN COURT OF APPEALS A16-0477 State of Minnesota, Respondent, vs. Adam Blaine Davis, Appellant. Filed February 13, 2017 Affirmed Kirk, Judge Marshall County District Court File No. 45-CR-15-30 Lori Swanson, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St. Paul, Minnesota; and Donald Aandal, Marshall County Attorney, Warren, Minnesota (for respondent) Todd V. Peterson, Todd V. Peterson, P.A., Sauk Rapids, Minnesota (for appellant) Considered and decided by Kirk, Presiding Judge; Halbrooks, Judge; and Rodenberg, Judge. UNPUBLISHED OPINION KIRK, Judge Appellant challenges his conviction of criminal vehicular homicide, arguing that the district court erred in holding that there was probable cause to believe that he had committed a crime and that exigent circumstances existed justifying a warrantless blood draw. We affirm. FACTS At approximately 10:30 p.m. on September 18, 2014, P.G. and his wife, K.G., were driving northbound on Highway 59 near Thief River Falls. Driving conditions were clear and the road was dry. P.G. observed a vehicle ahead of him swerve towards the ditch and flash its taillights as a southbound vehicle swerved into the northbound lane, colliding with the vehicle. P.G. pulled over behind the northbound vehicle, and K.G. immediately called 911. P.G. checked on the driver of the northbound vehicle, B.O. P.G. was unable to open the door of B.O.’s vehicle. K.G. stayed with B.O., and P.G. went over to the southbound vehicle and spoke with the driver, appellant Adam Blaine Davis. In his statement to law enforcement, P.G. stated that appellant was able to talk, but that he was not making “much sense.” P.G. thought appellant was drunk. P.G. asked appellant if he had been drinking, and appellant repeatedly stated, “I’m innocent[,] officer[.]” P.G. was unable to remove appellant from his vehicle. Law enforcement arrived on the scene in less than five minutes. Thief River Falls Police Officer Hart was one of the responding officers at the scene. In a supplementary report, Officer Hart stated that it appeared that the vehicle driven by appellant had crossed the centerline and struck the vehicle driven by B.O. Officer Hart attempted to render aid to the drivers and spoke with four witnesses at the scene, including P.G. B.O. died shortly after being transported to the hospital. 2 Respondent State of Minnesota charged appellant with one count of criminal vehicular homicide—operating a vehicle with negligence and under the influence of either alcohol or a controlled substance. Appellant moved to suppress the results of the blood draw, arguing in part that the search violated his Fourth Amendment rights. At the first contested omnibus hearing, Minnesota State Patrol Trooper Scott Stueber testified that he responded to the accident and found a chaotic scene with firetrucks, ambulances, and “people everywhere.” Three months after the accident, Trooper Stueber drafted a field report describing the accident scene. In the report, he stated that the collision occurred at a slight curve in the road and that appellant’s vehicle failed to follow the curve and came into the northbound lane. Trooper Stueber described B.O.’s vehicle as “straddling the east fog line with severe front end damage.” There was a skid mark in front of B.O.’s driver-side rear tire indicating that the vehicle’s brake was engaged at impact. Trooper Stueber could not see any skid marks leading up to the point of impact from appellant’s vehicle. Trooper Stueber’s field report was not admitted into evidence at the hearing. Marshall County Sheriff’s Deputy Cody Gillund testified that he arrived at the scene at 10:56 p.m. He was then instructed to go to Sanford Hospital in Thief River Falls to meet with Trooper Stueber. Deputy Gillund arrived at the hospital at 11:10 p.m. and proceeded to the emergency department. A physician informed him that B.O. had died of her injuries. Deputy Gillund testified that appellant was being treated by numerous hospital staff, and there was a “steady flow of nurses in and out” of his room. One of the ambulance personnel who treated appellant told Deputy Gillund that he believed appellant smelled like alcohol. 3 Deputy Gillund also learned that hospital staff planned to airlift appellant to either Minneapolis or Fargo, North Dakota for medical treatment. Deputy Gillund called Trooper Stueber and told him that appellant would be airlifted and that the ambulance personnel believed that appellant smelled of alcohol. Trooper Stueber advised Deputy Gillund to request that hospital staff draw a sample of appellant’s blood. Thief River Falls Police Officer Scott Mekash testified that he brought a blood kit to Deputy Gillund at the hospital. As Officer Mekash stood approximately eight feet away from appellant’s hospital room, he smelled an odor of alcohol coming from the room. He told Deputy Gillund about the smell of alcohol. Trooper Stueber testified that he told Deputy Gillund to take a blood draw because he did not think that there was enough time to get a search warrant. Under cross- examination, he admitted that he had “zero experience” in obtaining a telephonic warrant, but that he could have figured out how to do it in time if he had to. Trooper Stueber insisted that he did not believe that there was enough time to get a search warrant before appellant was airlifted to another hospital. Deputy Gillund testified that he did not administer the Minnesota Motor Vehicle Implied Consent Advisory to appellant because he did not want to interfere with his care given “the mass flow of hospital personnel in and out” of appellant’s room. Deputy Gillund was uncertain whether he would be able to stand next to appellant to administer the advisory. He testified that he did not seek a search warrant because he did not believe that there was enough time before appellant was airlifted. 4 At 11:45 p.m., approximately one hour and fifteen minutes after the crash, a nurse collected a sample of appellant’s blood as the helicopter crew prepped appellant for transfer to a hospital in Fargo. Deputy Gillund testified that initially the nurse explained to him that she could not to get a second tube of appellant’s blood “because [the helicopter crew was] taking him.” But “something happened” and the nurse was able to get a second blood draw at 11:50 p.m. Within 15 minutes of the second blood draw, appellant was airlifted to Fargo. Chemical testing of appellant’s blood revealed the presence of amphetamine, methamphetamine, and morphine. After the first contested omnibus hearing, the district court granted appellant’s motion to dismiss. It concluded that exigent circumstances existed, as the facts of the case were similar to State v. Stavish, but the state failed to prove that there was probable cause that appellant had committed a crime. 868 N.W.2d 670, 672-74 (Minn. 2015). The district court found that the state failed to introduce any eyewitness testimony and it failed to submit the police or investigative reports into the record to establish that appellant negligently collided into B.O.’s vehicle. The state moved the district court to reconsider its order suppressing appellant’s blood draw, and, after a telephonic hearing, the court granted the state’s motion. A second contested omnibus hearing was held, and the state submitted a Florence packet in support of probable cause. P.G. and K.G. also testified. Following the second hearing, the district court issued an order concluding that there was probable cause to believe appellant had committed the crime of criminal vehicular homicide. It found that Officer Hart’s report established that appellant’s vehicle had 5 crossed the centerline and struck B.O.’s vehicle. It also found that law enforcement was informed of P.G.’s observations at the accident scene. It further found, based on Trooper Stueber’s field report, that appellant “failed to negotiate a curve in the road and struck [B.O.]’s vehicle” and that appellant’s vehicle did not leave any skid marks at the accident scene. The parties stipulated to the state’s case under Minn. R. Crim. P. 26.01, subd. 4, in order to obtain appellate review of the district court’s denial of appellant’s suppression motion. The parties also agreed that if the district court found appellant guilty, the state would recommend a 75-month prison sentence. The district court found appellant guilty of criminal vehicular homicide and sentenced him to 75 months in prison. This appeal follows. DECISION When reviewing pretrial orders on motions to suppress evidence, this court may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing the evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). We review the district court’s factual findings for clear error and its legal conclusions, including determinations of probable cause, de novo. State v. Horst, 880 N.W.2d 24, 33 (Minn. 2016). “[T]he constitutional prerequisite to the warrantless nonconsensual removal of blood of a conscious or unconscious person is the same: probable cause plus exigent circumstances.” State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980). A probable cause determination involves a practical, common-sense decision given all of the circumstances, 6 whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996) (quotation omitted). The inquiry is objective, not subjective. See State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997). A. There was probable cause to believe appellant committed the crime of criminal vehicular homicide. Appellant argues that the district court erred in concluding that the warrantless blood draw was supported by probable cause because there was insufficient evidence to believe appellant had driven negligently. He challenges the district court’s reliance on facts that he alleges were not established before his blood was drawn, specifically those found in Trooper Stueber’s police report documenting the position of the vehicles on the road and the skid marks left at the accident scene. He also points out that the record is unclear whether P.G. and K.G. spoke to law enforcement about their observations before the blood draw. Criminal vehicular homicide arising from the negligent operation of a motor vehicle while under the influence of alcohol and/or a controlled substance is a crime. Minn. Stat. § 609.2112, subd. 1(2)(iii) (2014). Relevant to this appeal, the state must prove under the statute that appellant caused the death of a human being as a result of operating a motor vehicle in a: (1) grossly-negligent manner, or (2) in a negligent manner while under the influence of any combination of alcohol or controlled substance so long as the alcohol concentration is at least 0.08 or more, as measured within two hours of the time of driving. Id. 7 We have held that there is probable cause of criminal negligence resulting in death when there is a fatal accident and evidence that the driver was drinking and inattentive. State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983). “Evidence of a defendant’s drinking is but one of many factors that bears on a determination of the issue of whether the defendant is guilty of the crime of criminal negligence.” Id. A law enforcement officer does not need to observe any outward indicia of intoxication in order to have probable cause to believe that the defendant is intoxicated. See State v. Lee, 585 N.W.2d 378, 382 (Minn. 1998). Rather, the probable cause that is required for a warrantless, nonconsensual blood draw is probable cause to believe the defendant has committed a crime and probable cause to believe that the administration of a blood-alcohol test will result in the discovery of evidence relevant in the prosecution of that crime. Speak, 339 N.W.2d at 745. Here, given all of the circumstances, we conclude that there is probable cause to believe that appellant committed the crime of criminal negligence resulting in death. Id. at 381. At the scene, both drivers were injured, and B.O. died from her injuries prior to appellant’s warrantless blood draw. Officer Hart examined the crash scene, and it appeared to him that appellant’s vehicle had crossed the centerline and struck B.O.’s vehicle. At the time Officer Hart made this observation, appellant was still at the scene of the accident. The district court properly found that Officer Hart’s report corroborated P.G.’s testimony that appellant repeatedly told P.G. that “he was innocent,” despite the fact that P.G. was not a law enforcement officer. P.G. also reported that appellant was acting drunk at the collision scene and that he slurred his words. Additionally, an ambulance crew member and Officer Mekash reported smelling alcohol on appellant. This evidence suggests 8 negligent driving by appellant, “the sort of inattentive driving indicative of [a] defendant being under the influence of alcohol.” Id. at 383. The collision also occurred at approximately 10:30 p.m., a time of day when an accident involving drinking is likely to occur. See State v. Storvick, 428 N.W.2d 55, 60 (Minn. 1988) (noting that a collision involving a pedestrian and a driver suspected of drinking that occurred at approximately 9:00 p.m. occurred at a time of day that drinking-related accidents occur). Taken together, these facts support a finding of probable cause. While chemical analysis of appellant’s blood revealed the presence of drugs, but no alcohol, the facts establish that there was probable cause to believe appellant had committed a crime at the time his blood was drawn. See State v. Fawcett, 884 N.W.2d 380 (Minn. 2016). Although the district court erred in relying on Trooper Stueber’s report, which was filed three months after the collision and does not indicate when he made his observations, we still conclude that there is sufficient evidence to show to a degree of reasonable probability that appellant had committed criminal vehicular operation or homicide. Lieberg, 553 N.W.2d at 55. B. Exigent circumstances were present. The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless search is reasonable only if it falls within a recognized exception to the warrant requirement. Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558 (2013). One established exception is the presence of exigent circumstances. Stavish, 868 N.W.2d at 675. Exigent circumstances exist when “there is compelling need for official action and no time to secure a warrant.” Id. (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 1949 9 (1978)). “The [s]tate has the burden of showing that exigent circumstances justified the search.” Horst, 880 N.W.2d at 33. Appellant raises three challenges to the district court’s finding that exigent circumstances existed. First, he argues that exigent circumstances did not exist because law enforcement did not need to take his blood within a two-hour window to prove that he committed criminal vehicular operation caused by gross negligence. Second, appellant argues that the record establishes that law enforcement had ample time to obtain a telephonic search warrant. Third, he argues that there is no evidence that he would become unavailable for a blood draw. In determining whether a law enforcement officer faced an emergency justifying acting without a warrant, this court examines the totality of the circumstances by objectively evaluating the facts reasonably available to the officer at the time of the search. Stavish, 868 N.W.2d at 675. Stavish, a recent opinion from the Minnesota Supreme Court, is instructive in analyzing the circumstances supporting exigency. Stavish involved a single-vehicle rollover crash that resulted in the death of the passenger and serious injuries to the defendant, who was the driver. Id. at 672. Prior to a blood draw, the defendant admitted to law enforcement that he was the driver of the vehicle and that he had been drinking. Id. at 673. Fifty minutes after the crash, a nurse took a warrantless blood draw of the defendant’s blood under the direction of law enforcement. Id. The supreme court relied on the following circumstances supporting exigency: (1) there was a single-vehicle accident involving a fatality; (2) the driver was seriously injured; (3) the driver, who had been transported to the hospital, would possibly be airlifted 10 to another hospital; (4) alcohol was involved in the accident; (5) multiple medical personnel were attending to the driver; (6) the officer did not know how long the driver would be at the hospital or whether “further medical care would preclude obtaining a sample”; (7) federal and state privacy laws limit the amount of information that the officer could discover about the driver’s medical condition; and (8) the officer was attempting to get a blood sample within a statutory two-hour period. Id. at 677-79. All of the circumstances supporting exigency in Stavish are also present in this case. Appellant was a driver involved in a fatal motor vehicle accident and was seriously injured. He was being prepped for transport by a helicopter crew to an out-of-state hospital and multiple medical personnel were treating appellant before he was airlifted. Deputy Gillund only knew that appellant was likely to leave the hospital within a very short time, and he did not think he could administer the implied-consent advisory given the number of medical personnel attending to appellant in the emergency room. And the window of time available to obtain a blood sample was even more limited than in Stavish because appellant’s sample was obtained 75 minutes after the collision. Time was of the essence in drawing appellant’s blood within two hours of the accident to ensure the reliability and admissibility of any alcohol-concentration evidence. Contrary to his claim, the results of appellant’s blood-alcohol test were very important to the offense he was charged with. Criminal vehicular homicide can be proved by evidence of driving in a negligent manner while under the influence of alcohol, with an alcohol concentration of 0.08 or more as measured within two hours of driving, or under the influence of controlled substances. See Minn. Stat. § 609.2112, subd. 1(2) and (4). At 11 the time appellant’s blood was drawn, a chemical analysis of his blood was relevant to which subpart he could be charged under. And an officer may reasonably believe that an emergency exists where the delay necessary to obtain a warrant will result in the destruction of evidence. Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966). The district court did not err in finding that there was not sufficient time to get a telephonic warrant. Stavish does not consider the availability of a telephone search warrant as a factor in the exigency analysis. Here, the record evidence demonstrates that at the time Deputy Gillund was instructed to get a blood draw, hospital staff had already determined that appellant needed to be airlifted to another hospital. Any additional delay could have prevented law enforcement from getting a sample of appellant’s blood. Further, appellant was being transferred to a hospital in a different state, and he would be unavailable for a blood draw. For these reasons, exigent circumstances existed at the time of the blood draw, and the district court did not err in declining to suppress the blood-test evidence. Affirmed. 12

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127333/

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016). STATE OF MINNESOTA IN COURT OF APPEALS A16-0626 In the Matter of the Athlete Agent Application of Donald Walthall Filed February 13, 2017 Affirmed Larkin, Judge Department of Commerce File No. 5-1000-32503 Bobby Joe Champion, Karlowba R. Adams Powell, Champion Law, Minneapolis, Minnesota (for relator) Lori Swanson, Attorney General, Christopher M. Kaisershot, Assistant Attorney General, St. Paul, Minnesota (for respondent) Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Reyes, Judge. UNPUBLISHED OPINION LARKIN, Judge Relator challenges respondent Minnesota Commissioner of Commerce’s denial of his application for registration as an athlete agent, arguing that the commissioner erred in weighing the relevant statutory factors. We affirm. FACTS In 2002, relator Donald Walthall formed Universal Mortgage, Inc. (Universal), a residential-mortgage-origination business, and became its chief executive officer. Universal served as a fiduciary agent for mortgage lenders. As a fiduciary agent, Universal was required to provide truthful information to lenders on behalf of loan applicants and to process loans approved by lenders. In December 2004, the Minnesota Department of Commerce (department) licensed Walthall as a real-estate-closing agent, and the State of Minnesota commissioned Walthall as a notary public. In 2005, Walthall financed his purchase of eight Minneapolis properties through Universal. Walthall falsified information on all eight loan applications. For example, each loan application indicated that Walthall intended to occupy the property as his primary residence. Walthall used a different lender for each loan and omitted prior property purchases from seven of the loan applications. Walthall inflated the purchase price in seven of the loan applications and retained the $240,000 difference between the actual purchase prices and the loan proceeds. In December 2007, the state charged Walthall with one count of felony racketeering and four counts of felony theft by swindle. The state also charged Universal with one count of felony racketeering and 24 counts of felony theft by swindle. The state alleged that Walthall used “straw buyers”1 to purchase residential properties at inflated prices. The 1 A “straw buyer” of real estate is one who buys property at the direction of another, at a price dictated by the other, with funds arranged for by the other, generally in the form of a bank loan. 2 charged conduct was unrelated to Walthall’s initial purchase of the eight Minneapolis properties. The state charged Walthall with eight additional counts of felony theft by swindle based on those purchases in January 2008. In August 2008, the district court found Walthall guilty of the eight counts of theft by swindle. Later, Walthall pleaded guilty to the December 2007 felony racketeering charge, and the state dismissed the remaining theft- by-swindle charges. The district court sentenced Walthall to serve 74 months in prison. In June 2011, respondent Minnesota Commissioner of Commerce revoked Walthall’s real-estate-closing-agent license and notary commission, and barred him from “engaging in residential mortgage origination or servicing.” The commissioner adopted an administrative-law judge’s (ALJ) finding that in 2009, the district court entered a civil judgment of $93,834 against Walthall for his participation in defrauding a mortgage lender in 2007. The commissioner concluded: The misconduct underlying [Walthall’s] convictions for felony racketeering and felony theft by swindle demonstrates that he violated a standard of conduct, committed fraudulent, deceptive, or dishonest practices; and engaged in acts that demonstrate that he is untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act under the authority or license granted by the Commissioner. The commissioner also concluded that the department had shown by a preponderance of the evidence that Walthall defrauded the mortgage lender in 2007. The commissioner fined Walthall $330,000. At the time of the proceeding underlying this appeal, Walthall had not made any payment toward the fine. In November 2014, Walthall completed his sentence for his mortgage-fraud convictions. In December 2014, Walthall sought an informal opinion from the department 3 regarding whether it would allow him to register as an athlete agent if he applied. A department staff member advised Walthall that she would recommend denying his application because of the “nature and seriousness of the underlying conduct resulting in the criminal charges and conviction reflected on [his] record.” The staff member also expressed concern regarding Walthall’s outstanding $330,000 fine. In March 2015, Walthall formally applied to register as an athlete agent. The department notified Walthall that it intended to deny his application. Walthall requested and received a contested-case hearing before an ALJ under the Minnesota Administrative Procedure Act, Minn. Stat. §§ 14.57-.62 (2016). The ALJ recommended that the commissioner allow Walthall to register as an athlete agent. The commissioner rejected the ALJ’s recommendation and denied Walthall’s application. This appeal by writ of certiorari follows. DECISION This court presumes agency decisions are correct. Fine v. Bernstein, 726 N.W.2d 137, 142 (Minn. App. 2007), review denied (Minn. Apr. 17, 2007). We may reverse an agency’s decision if a petitioner’s substantial rights may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional provisions, in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedure, affected by other error of law, unsupported by substantial evidence in view of the entire record as submitted, or arbitrary or capricious. Minn. Stat § 14.69 (2016). An “agency’s conclusions are not arbitrary and capricious so long as a rational connection between the facts found and the choice made has been articulated.” In 4 re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001) (quotation omitted). We evaluate the evidence on which the agency relied in view of the entire record as submitted. Pomrenke v. Comm’r of Commerce, 677 N.W.2d 85, 94 (Minn. App. 2004), review denied (Minn. May 26, 2004). “If an agency engaged in reasoned decision-making, a reviewing court will affirm, even though it may have reached a different conclusion than the agency.” Id. “When parties have presented conflicting evidence on the record, appellate courts must defer to [a] commissioner’s ability to weigh the evidence; they may not weigh that evidence on review.” Vargas v. Nw. Area Found., 673 N.W.2d 200, 205 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004). Because we must afford deference to the agency’s decision, our review of [a] Commission’s decision is guided by the principle that the agency’s conclusions are not arbitrary and capricious so long as a rational connection between the facts found and the choice made has been articulated. If there is room for two opinions on a matter, the Commission’s decision is not arbitrary and capricious, even though the court may believe that an erroneous conclusion was reached. In re Review of 2005 Annual Automatic Adjustment of Charges, 768 N.W.2d 112, 120 (Minn. 2009) (citation and quotation omitted). “The standard of review is not heightened where the final decision of the agency decision-maker differs from the recommendation of the ALJ.” Blue Cross, 624 N.W.2d at 278. The agency decision-maker must weigh all of the evidence presented and come to an independent decision but “owes no deference to any party in an administrative proceeding, nor to the findings, conclusions, or recommendations of the ALJ.” Id. 5 With these standards in mind, we turn to the substantive issues in this appeal. I. Minnesota law prohibits an individual from acting as an athlete agent without a certificate of registration. Minn. Stat. § 81A.04, subd. 1 (2016). An “athlete agent” is an “individual who enters into an agency contract with a student athlete or, directly or indirectly for remuneration, recruits or solicits a student athlete to enter into an agency contract.” Minn. Stat. § 81A.02, subd. 3 (2016). Individuals may request registration as an athlete agent from the commissioner of commerce. Minn. Stat. § 81A.02, subd. 5 (2016); Minn. Stat. § 81A.05, subd. 1 (2016). “The commissioner may refuse to issue a certificate of registration if the commissioner determines that the applicant has engaged in conduct that has a significant adverse effect on the applicant’s fitness to act as an athlete agent.” Minn. Stat. § 81A.06, subd. 2(a) (2016). When making this determination, the commissioner may consider whether the applicant has: (1) been convicted of a crime that, if committed in this state, would be a crime involving moral turpitude or a felony; (2) made a materially false, misleading, deceptive, or fraudulent representation in the application or as an athlete agent; (3) engaged in conduct that would disqualify the applicant from serving in a fiduciary capacity; (4) engaged in conduct prohibited by section 81A.14; (5) had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure as an athlete agent in any state; (6) engaged in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student athlete or educational institution; or 6 (7) engaged in conduct that significantly adversely reflects on the applicant’s credibility, honesty, or integrity. Id. When deciding whether to refuse to issue a certificate of registration based on conduct that has a significant adverse effect on the applicant’s fitness to act as an athlete agent, “the commissioner shall consider: (1) how recently the conduct occurred; (2) the nature of the conduct and the context in which it occurred; and (3) any other relevant conduct of the applicant.” Minn. Stat § 81A.06, subd. 2(b) (2016). Walthall assigns error to the commissioner’s consideration of the discretionary and mandatory factors. We address each in turn. Discretionary Factors under Minn. Stat. § 81A.06, subd. 2(a) In denying Walthall’s application, the commissioner determined that discretionary factors (1), (3), and (7) weigh heavily against the application. The commissioner reasoned that Walthall’s “conviction on eight counts of felony theft-by-swindle and felony racketeering are two separate convictions,” that the convictions were for “crimes involving moral turpitude,” that the “convictions reflect very poorly on [Walthall’s] credibility, honesty, and integrity,” and that Walthall’s fraudulent misconduct in the mortgage industry “would disqualify him from serving in a fiduciary capacity.” Walthall does not assign error to the commissioner’s reliance on discretionary factors (1), (3), and (7) or the commissioner’s attendant reasoning. Instead, he takes issue with the commissioner’s conclusion that “[n]one of the discretionary factors . . . weigh in favor of [his] Application.” Specifically, Walthall argues that discretionary factors (2), (5), 7 and (6) weigh in favor of his application. He notes that he “fully complied and was truthful in his application” and that “[h]e did not make any materially false, misleading, deceptive, or fraudulent representations in his application or as an athlete agent.” He further notes that he “has never had a registration or licensure as an athlete agent suspended, revoked, or denied or been refused renewal of registration or licensure as an athlete agent in any state.” Lastly, he notes that he “did not engage in conduct the consequence of which was that a sanction, suspension, or declaration of ineligibility to participate in an interscholastic or intercollegiate athletic event was imposed on a student athlete or education institution.” Walthall therefore argues that it is “quite evident” that factors (2), (5), and (6) weigh in his favor. He further argues that “[a]lthough the [commissioner] is not required to consider these elements, to blatantly disregard them is most telling, and tends to suggest that the [commissioner] failed to conduct a thorough statutory analysis.” Walthall’s point has some merit. Although the commissioner was not required to consider or address any of the discretionary factors, and the clear statutory language does not suggest that if the commissioner relies on some of the discretionary factors, the commissioner must consider all of the discretionary factors, the commissioner stated that “[n]one of the discretionary factors . . . weigh in favor of [Walthall’s] Application,” implying that he considered all of the factors. To the extent that the commissioner did so, the record establishes that factors (2), (5), and (6) weigh in Walthall’s favor. Mandatory Factors under Minn. Stat. § 81A.06, subd. 2(b) Walthall argues that the commissioner “improperly weighed” the mandatory factors under Minn. Stat. § 81A.06, subd. 2(b). As to the first mandatory factor, Walthall argues 8 that the commissioner erred in concluding that insufficient time had passed since he engaged in mortgage fraud. The commissioner reasoned, “While it has thus been over eight years since [Walthall’s] last criminal acts, for most of those years [Walthall] was incarcerated and thus presumably unable to engage in mortgage fraud or other criminal enterprises.” The commissioner concluded, “The fact that it has been more than eight years since [Walthall] engaged in criminal fraud does not demonstrate that he is unlikely to engage in criminal acts in the future. Accordingly, factor (1) is at best neutral.” According to a complaint in the record, Walthall most recently committed mortgage fraud in July 2006. Using this date, Walthall applied for athlete-agent registration approximately eight years and eight months after his most recent act of mortgage fraud. The commissioner’s determination that it has been over eight years since Walthall committed mortgage fraud is therefore supported by the record. Walthall argues, “[T]hat is still 8 years ago. Moreover, [he] does not have any prior or subsequent criminal history outside of the incidents that led to his conviction in 2008.” Walthall goes on to assert that “no prior or subsequent history . . . is clearly[,] as outlined in M.S.A. section 81A.06, [subd.](b)(1)[,] a factor that ‘shall’ not ‘may’ be considered by the Commissioner” and “[t]his factor was clearly not considered.” Walthall’s assertion is not supported by the relevant statutory language, which requires the commissioner to consider “how recently the conduct occurred.” Minn. Stat § 81A.06, subd. 2(b)(1). It does not require the commissioner to consider lack of prior or subsequent criminal history. Walthall argues that his “criminal conduct occurred a very long time ago, which clearly weighs heavily in favor of his application.” Essentially, Walthall invites us to 9 reweigh the evidence and substitute our assessment of the recency factor for the commissioner’s. Under the applicable standards of review, we cannot reweigh the evidence or substitute our judgment for that of the commissioner. See Vargas, 673 N.W.2d at 205. As to the second mandatory factor, Walthall argues that his criminal conduct occurred during his work as a real-estate-mortgage originator and loan officer, that his convictions stemmed from real-estate transactions, and that the real-estate context “is not analogous to the athlete agent area.” Walthall therefore disagrees with the commissioner’s conclusion that factor (2) weighs heavily against his application, arguing that “[u]nder such an analysis, an individual would never overcome the stigma of a felony conviction and could never register.” In determining that factor (2) weighs heavily against Walthall’s application, the commissioner reasoned that his mortgage fraud schemes were an egregious violation of law and the fiduciary obligations he owed to lenders and the straw borrowers he set up to fail. These violations undermine [Walthall’s] fitness to act as an agent for others. The violations [Walthall] engaged in both by his company and individually cannot be squared with the obligations that he would have as an Athlete Agent. The commissioner explained that he was “very concerned that [Walthall] intends to engage in being an Athlete Agent by using a company that is structured in the same fashion as [his prior mortgage company] and will employ one of the co-conspirators in [his] mortgage fraud schemes.” The commissioner also explained that his concern was compounded because Walthall would be “working with relatively unsophisticated 10 consumers in student athletes, who likely will not understand complex compensation schemes or endorsement deals.” The commissioner concluded that: [Walthall’s] history of taking advantage of unsophisticated consumers in his mortgage fraud schemes, coupled with the fact that there is no conclusive evidence in the record of what [Walthall’s] payment arrangements will be or whether he will handle student athletes’ money, all weigh heavily against granting the application. Even the ALJ found that these facts gave him “reason to pause and consider [Walthall’s] fitness.” The Commissioner agrees that these facts should give us pause . . . . [And] the Commissioner finds that factor (2) weighs heavily against the Application. (Citation omitted.) Walthall counters, “It is important that ex-offenders be afforded the opportunity to obtain gainful employment in upstanding and viable professional occupations, so that a criminal conviction does not become a life-long penalty.” He complains that the department continues to punish him for his past criminal conduct. Walthall’s suggestion that the commissioner erred by relying on his criminal history is inconsistent with the plain language of the governing statute. When the commissioner refuses to issue a certificate of registration based on prior “conduct that has a significant adverse effect on the applicant’s fitness to act as an athlete agent,” the commissioner must consider “the nature of the conduct and the context in which it occurred.” Minn. Stat. § 81A.06, subd. 2(a), (b)(2). This requirement would be significantly undermined if criminal convictions were excluded from the analysis. 11 Moreover, we note that an athlete agent is authorized to negotiate a professional sports-service contract or an endorsement contract on behalf of a student athlete. See Minn. Stat. § 81A.02, subds. 2-3 (2016) (defining “Athlete agent” and “Agency contract”). We easily envision the ways that an athlete agent—like a mortgage originator—would have the opportunity to abuse the trust of his clients in such financial matters. It is undisputed that Walthall abused his fiduciary position of trust as a mortgage originator on multiple occasions. The commissioner reasonably concluded that the athlete-agent context is sufficiently analogous to the real-estate context in which Walthall engaged in extensive, criminal financial fraud and that the nature and context of Walthall’s prior fraudulent conduct weighs heavily against his application. As to the third mandatory factor, Walthall argues that the commissioner “overlooked [his] valiant efforts to turn his life around” and gave too much weight to his failure to make any payment toward his outstanding $330,000 civil fine. He asserts that the commissioner “only focused on the negative factors” when considering his application. The third mandatory factor requires the commissioner to consider “any other relevant conduct of the applicant.” Minn. Stat. § 81A.06, subd. 2(b)(3). The record shows that the commissioner considered positive factors when assessing Walthall’s application, but reasoned that those positive factors were neutralized by other circumstances. For example, the commissioner recognized that Walthall cooperated with authorities in prosecuting other mortgage-fraud cases. But the commissioner noted that Walthall did so as part of a plea agreement. The commissioner also recognized that Walthall “completed various educational courses while incarcerated and earned a Bachelor of Science degree.” 12 But the commissioner noted that, since Walthall’s release from custody, he “has not held a position of trust to demonstrate his capability to handle these responsibilities.” Although the commissioner weighed Walthall’s “failure to make any payments on the $330,000 civil penalty” against his application, the commissioner explained his reasoning. The commissioner stated, “[T]he purpose of imposing sanctions is to protect the public and to deter future misconduct by others. These purposes would be undermined if the application was granted even though the civil penalty is outstanding.” Walthall dismisses the commissioner’s explanation as “clever.” He asserts that “legislative intent was not to base an applicant’s fitness to act as an athlete agent on whether or not [he] possessed the financial means to pay a civil penalty.” He argues that the commissioner “assigns relevance to payment of a civil penalty under the guise of public safety”2 and that such reasoning “defies logic and . . . continues to perpetuate the painful reality in our society where the financially able ‘the haves’ are able to get justice while the poor ‘the have nots’ are perpetually left without.” Walthall concludes, “This is not what the Minnesota legislature intended.” Walthall summarily asserts, without legal support, that “[i]f the Minnesota Legislature had intended payment of a civil penalty to be determinative of one’s fitness as an athlete agent it would have said so specifically” and that the commissioner “cannot go against the legislative intent and reinterpret the law, [he] must rely on the plain language of the law.” Walthall’s argument is unpersuasive because the plain language of the statute 2 We note that the commissioner’s explanation generally refers to protecting the public, and not to “public safety.” 13 broadly authorizes the commissioner to consider “other relevant conduct.” Id. That language does not preclude consideration of an applicant’s failure to satisfy a financial obligation stemming from “conduct that has a significant adverse effect on the applicant’s fitness to act as an athlete agent.” Id., subd. 2(a). We are sympathetic to Walthall’s inability to pay the $330,000 civil penalty. But given the broad statutory language, the absence of legal authority suggesting that the commissioner contravened legislative intent by considering Walthall’s failure to make “any” payments, and the commissioner’s reasonable explanation regarding why he deemed that failure relevant, we cannot say that the commissioner erred, especially when the commissioner ultimately concluded that factor (3) is neutral. A reasonable mind could disagree with that conclusion, but we cannot substitute our judgment for that of the commissioner. Conclusion In conclusion, we discern error in the commissioner’s application of the discretionary factors, but not the mandatory factors. Given the entire record as submitted, the discretionary-factor error does not justify reversal. The commissioner’s factual findings are supported by substantial evidence, the commissioner explained his application of the governing statute, and the commissioner’s explanation reveals reasoned decision- making. We do not believe that the discretionary-factor error compromises the commissioner’s ultimate decision that it is “not in the public interest to grant [Walthall’s] application.” See Minn. R. Civ. P. 61 (stating that harmless error shall be ignored). 14 We join the commissioner in commending Walthall’s “efforts to educate himself and earn not only a bachelor’s degree while incarcerated but also a master’s degree,” as well as Walthall’s pursuit of employment after he completed his sentence. However, we must respect the commissioner’s statement that he is “also mindful that he is entrusted with protecting the public from the risk of unscrupulous actors that fall within his jurisdiction, pursuant to his duties and responsibilities.” Unlike the commissioner, we cannot weigh the evidence or independently assess the statutory factors in light of the evidence. The standards that govern our review simply do not allow us to substitute our judgment for that of the commissioner. See In re 2005 Adjustment, 768 N.W.2d at 120. And under those standards, there is no basis to reverse the commissioner’s denial of Walthall’s application. Affirmed. 15

01-03-2023

02-17-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127354/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General _________________________ : OPINION : No. 86-107 : of : APRIL 30, 1986 : JOHN K. VAN DE KAMP : Attorney General : : RONALD M. WEISKOPF : Deputy Attorney General : : ________________________________________________________________________ THE HONORABLE GERALD J. GEERLINGS, COUNTY COUNSEL, COUNTY OF RIVERSIDE, has requested an opinion on the following question: Is a 12-year-old Arabian stallion which has never raced and which has sired several foals none of which has ever raced, eligible for the "in-lieu taxation" provided by part 12 of the Revenue and Taxation Code? CONCLUSION A 12-year-old Arabian stallion which has never raced and which has sired several foals none of which has ever raced, is nonetheless eligible for in-lieu taxation under part 12 of the Revenue and Taxation Code if he was used for breeding purposes during the previous two calendar years in order to produce progeny that would race. That is a question of fact for the assessor to determine from all the evidence. 1 86-107 ANALYSIS In 1971 the Legislature determined that subjecting racehorses to California's general property tax was detrimental to the vitality of the State's horse racing industry and resulted in serious tax inequities among owners of racehorses. (Rev. & Tax. Code, § 5701 added by Stats. 1971, ch. 1759, § 8, p. 3798.) Accordingly the Legislature added part 12 to the Revenue and Taxation Code (§ 5701 et seq., hereinafter, "part 12") to provide a special uniform system of "in-lieu taxation" for racehorses throughout the state. (Id., §§ 5701, 5722.) It imposes a considerably lower tax than that which would otherwise be imposed on racehorses. (Compare Cal. Const., art. XIII, §§ 1, 2, 12 and id., art. XIII A with § 5722.) For example, the annual tax on a 12-year-old stallion valued at $1,000,000 now would be $1,000 rather than $10,000 under the 1 percent ad valorem general property tax. We are asked whether a 12-year-old Arabian stallion which has never raced and which has sired several foals none of which has ever raced, is eligible for the in-lieu taxation under part 12.1 We conclude it would be if he had been used for breeding purposes in the two calendar years previous to when tax is due, in order to produce progeny that would race. Section 5721 of the Revenue and Taxation Code2 provides as follows: "For the 1973 calendar year and each calendar year thereafter, on the privilege of breeding, training, caring for or racing a racehorse in this state, 1 The full particulars we are given are that: a. The horse is a registered Arabian horse within the scope of Property Tax Rule 1046(b). (Tit. 18, Cal. Admin. Code, 1046, subd. (b); cf. tit. 4, Cal. Admin. Code, 1588.) b. He is a stallion within the generic meaning of being an uncastrated male. c. He is approximately 12 years old. d. He has been used for breeding purposes. e. He has serviced three or more different registered broodmares during the two calendar years previous to the year of tax assessment. (Cf. Rev. & Tax. Code, § 5710.) f. Since 1972 he has sired more than 160 Arabian horses, none of which have ever been proven to have participated in horse racing, either in California or elsewhere. g. He is a recognized championship show horse which has produced substantial revenues to the owner in the form of prizes and trophies. h. He has never raced nor have his owners registered with the California Horse Racing Board as owners of race-horses. ( But see fn. 12, post.) 2 All unidentified section references are to the Revenue and Taxation Code. 2 86-107 there is hereby imposed an annual tax on owners of racehorses for such racehorses domiciled in this state, which shall be in lieu of any property tax on racehorses subject to taxation pursuant to this part." Section 5722 sets forth the scheduled tax. The term "racehorse" is defined by section 5703, which definition is controlling for discerning the operation of part 12. (§ 5702; cf. Rideaux v. Togrunson (1939) 12 Cal.2d 633, 636; Buchwald v. Superior Court (1967) 254 Cal.App.2d 347, 354.) The section provides: "'Racehorse' means each live horse, including a stallion, mare, gelding, ridgeling, colt, filly, or foal, that is or will be eligible to participate in or produce foals which will be eligible to participate in a horseracing contest in California wherein parimutuel racing is permitted under rules and regulations prescribed by the California Horse Racing Board. 'Racehorse' does not mean or include any horse over three years old, or four years old in the case of an Arabian horse,[3] that has not participated in a horserace contest on which parimutuel wagering is permitted or has not been used for breeding purposes in order to produce racehorses during the two previous calendar years." Does our Arabian come within its ambit? There are two criteria which must be fulfilled to meet the statutory definition of "racehorse" under section 5703. One, a horse must now or in the future be eligible to participate in or produce foals which will be eligible to participate in a horse racing contest in California wherein parimutuel racing is permitted under rules and regulations prescribed by the California Horse Racing Board and two, if it is over three years old, or four years old in the case of an Arabian, the horse must either 3 The reference to the four-year-old Arabian was added in 1985 (Stats. 1985, ch. 1250, § 4) upon the Legislature finding that Arabian horses begin racing and breeding at least one year later than other breeds. (Id., § 3, amending 5701, post (legislative intent).) 3 86-107 (a) have participated in a horse race contest on which parimutuel wagering is permitted or (b) have been used for breeding purposes in order to produce racehorses during the two previous calendar years. It is the emphasized portion of this second criterion which is troublesome. The first criterion is innocuous enough. It merely requires that a horse or its foals be "eligible to participate in a horse racing contest wherein parimutuel racing is permitted under the rules and regulations prescribed by the California Horse Racing Board."4 Those rules and regulations appear in chapter 4 of title 4 of the California Administrative Code (§§ 1400-2050). Under them, for a horse to be "eligible" to "participate in a race" it must, inter alia, be registered with one of five mentioned equine organizations, viz— the Jockey Club if a thoroughbred, the United States Trotting Association if a standardbred (harness horse), the American Quarter Horse Association if a quarter horse, the Appaloosa Horse Club if an appaloosa, or the Arabian Horse Registry of America if an Arabian. (4 Cal. Admin. Code, § 1588, subd. (a);5 see also Bus. & Prof. Code, sections 19416, 19409, 19413.5, 4 Article IV, section 19, subdivision (b) of the California Constitution authorizes the Legislature to pro- vide for the regulation of horse races in California and wagering on their results. (Cal. Const., art. IV, § 19, subd. (b).) In the Horse Racing Law (Bus. & Prof. Code, div. 8, ch. 4, § 19400 et seq.) the Legislature has: (a) vested the California Horse Racing Board with "[j]urisdiction and supervision over meetings in the State where horse races with wagering on their results are conducted, and over all persons or things having to do with the operation of such meetings . . ." (id., § 19420); (b) has authorized it to "prescribe rules, regulations and conditions . . . under which all horse races with wagering on their results [are] conducted in this State" (id., § 19562); and (c) has defined a type of wagering on horse races known as parimutuel wagering (id., § 19411), declaring it to be the only method of wagering permitted (id., §§ 19593, 19595) and has directed the Horse Racing Board to "adopt rules governing, permitting and regulating [it]." (Id., § 19590.) 5 Section 1588 provides in full: "In addition to any other valid ground or reason, a horse is ineligible to start in any race if: "(a) Such horse is not registered by the Jockey Club if a thoroughbred, the United States Trotting Association if a standardbred (harness horse), the American Quarter Horse Association if a quarter horse, the Appaloosa Horse Club if an appaloosa horse, or the Arabian Horse Registry of America if an arabian horse. 4 86-107 19416.5, paragraph 1, 19416.5, paragraph 2, defining the breeds in terms of such registration respectively.) Since Arabians are thus currently recognized as a breed that is "eligible," i.e., fit or qualified to be chosen or used (Webster's Third New Internat. Dict. (1971 ed.) at 736) in horse racing contests wherein parimutuel racing is permitted under the rules of the California Horse Racing Board, an Arabian which is or will be registered with the Arabian Registry of America, Inc. would qualify on that count as being a "racehorse" within the meaning of section 5703 for the purpose of the in-lieu taxation established by part 12.6 We are told that the Arabian in question has been so registered. (See fn. 1, § 1, ante.) "(b) Unless the stewards permit otherwise, the certificate of foal registration, eligibility papers, or other registration issued by the official registry for such horse is not on file with the racing secretary at the time of entry; "(c) Such horse has been entered or raced at any recognized race meeting under any name or designation other than the name or designation duly assigned by and registered with the official registry; "(d) The certificate of foal registration, eligibility papers or other registration issued by the official registry has been altered, erased, or forged: "(e) The identification markings of the horse do not agree with the identification markings as set forth in the registration of such horse. "(f) Unless he is eligible to enter said race and is duly entered for such race. "(g) When such horse is owned in whole or in part by an unlicensed person or is in the care of an unlicensed trainer. "(h) When such horse is on the Steward's List, the Starter's List or the Veterinarian's List. "(i) When, except with prior approval of the stewards, such horse has not been on the grounds of the association or its approved auxiliary stable area for at least 24 hours prior to the time the race is to be run." 6 Before the 1974 lien year, Arabians did not qualify as racehorses under section 5703 of the Revenue and Taxation Code, although the racing of the breed, especially at fairs, had been recognized and encouraged. (See, e.g., Bus. & Prof. Code, §§ 19416.5, 19517.5, 19543, 19566.) Still, when part 12 of the Revenue and Taxation Code was adopted in 1971 they had not been "recognized" by the California Horse Racing Board as being a breed that could be eligible to participate in general parimutuel racing and section 1588 did not list them or their registry as a possibility. On August 4, 1973, however, the Board recognized Arabian racing by amending section 1588 to provide, that an Arabian registered with the Arabian Registry of America is otherwise eligible to race. The next year the State Board of Equalization amended its rule 1046 to reflect that development. (Tit. 18, Cal. Admin. Code, § 1046, subd. (b): "In order to qualify as a racehorse [for in lieu taxation] a horse must be registered or eligible to be registered with . . . [inter alia] The Arabian Horse Registry of America.") Section 19566.5 of the Business and 5 86-107 But the 12-year-old Arabian in question has never raced and that brings the troublesome second part of the statutory definition of "racehorse" into play. It states as a negative what does not constitute a racehorse for part 12 purposes: a horse over three years old or four years old in the case of an Arabian horse, that has not participated in a horse race contest on which parimutuel wagering is permitted or has not been used for breeding purposes in order to pro- duce racehorses during the two previous calendar years. (§ 5703.) We have taken the inverse of the statement to posit a positive second criterion for the statutory definition: to be considered a racehorse within the meaning of section 5703 a four-year-old Arabian must either (a) have participated in a horse race contest on which parimutuel wagering was permitted or (b) have been used for breeding purposes in order to produce racehorses during the two previous calendar years. (Cf. Hogue v. Ford (1955) 44 Cal.2d 706, 712 ("or").) Since the 12-year-old Arabian has never raced, for him to be eligible for in-lieu tax treatment under part 12, he must meet the second alternative of the condition, to wit, he would have had to have been used "for breeding purposes in order to produce racehorses during the two previous calendar years." Thus, this much is clear from the statute itself: unless the emphasized words are merely surplusage -- a possibility we must reject (California Mfgrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844; Fields v. Eu (1976) 18 Cal.3d 322, 328), the breeder of our Arabian can qualify for part 12 in-lieu tax treatment only if he can demonstrate that the purpose of breeding the stallion was to produce racehorses. But what does that mean?7 In other words, what is the meaning of "racehorse" as the word is now used at the end of the statutory definition? Is its meaning Professions Code provides that "The Stud Book of the Arabian Horse Registry of America, Inc. shall be recognized as the sole official registry for Arabian horses." There are, of course, other criteria determining whether a particular horse is eligible to race that are set forth in the Rules of the Horse Racing Board. However, they are less predictable in that they deal with the specific situation of a particular horse rather than the generality of a whole breed. (See, e.g., tit. 4, Cal. Admin. Code, § 1588, subds. (b)-(i), fn. 5, ante.) The State Board of Equalization has focused on registerability and made it the sole determinant for eligibility vis-a-vis section 5703. (Tit. 18, Cal. Admin. Code, 1040, subd. (a), supra.) 7 The implementing regulation of the Board of Equalization (tit. 18, Cal. Admin. Code, § 1046) invites the same question. It provides: "A horse over three years of age that, in the two previous calendar years, has neither participated in a horserace contest on which parimutuel wagering is permitted nor been used for breeding purposes in order to produce a racehorse eligible to participate in a horserace contest on which parimutuel wagering is permitted is not a racehorse within the meaning of part 12 of division 1 of the Revenue and Taxation Code. Any such horse is subject to ad valorem taxation unless otherwise exempt. 6 86-107 there, as has been suggested, the same as is given in the first sentence, in which event we would merely round the track of section 5703 to return to its starting gate of broadly defining "racehorse" as any appropriately registered equine whether or not it was ever the owner's intention to have it or its progeny race.8 Or does the term have a narrower meaning at the section's finish than at its start and, if so, what would it be? Ordinarily one does not expect to find different meanings for the same word used different times in the same section of law, for that would, as it were, ascribe an intent to the Legislature to change horses in midstream. (Cf. Rosemary Properties, Inc. v. McColgan (1947) 29 Cal.2d 677, 686.) But that rule is not absolute (cf. Sunset Tel. and Tel. Co. v. Pasadena (1911) 161 Cal. 265, 275; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 95) and we believe we have an exception to it here. Section 5703 is a definitional section consisting of two parts. The first part appears as its first sentence which defines the term "racehorse" in terms of an eligibility to participate in a parimutuel race. That, as we have seen, essentially means that a horse must merely be of a registerable breed and appropriately registered. (See fn. 6, ante, & accompanying text.) The second part of the definition appears as its second sentence and in effect is an exclusion of certain horses from those that would otherwise be covered by the first part.9 An exclusion perforce must be less inclusive than the whole which it "(a) A horse used for breeding purposes means a registered male animal that has serviced three or more registered females for the purpose of producing a racehorse during the two previous calendar years or a registered female animal that has been bred to a registered male for the purpose of producing a racehorse during the two previous calendar years." (Emphases added.) So does section 5710 of the code, which defines "stallion" as "any racehorse which, during the two previous calendar years, has serviced three or more different broodmares for the purpose of producing a racehorse." (§ 5710.) A "broodmare" is essentially defined as "a racehorse mare." (Compare § 5711 ("producing broodmare") with § 5712 ("nonproducing broodmare"). 8 We are told that unlike the quarterhorse, saddle- horse and appaloosa registries, the Arabian registry is closed -- i.e., only those horses whose sires and dams were registered Arabians may be registered. We are also told that there were 46,919 Arabian horses in California in 1984 and that only 125 raced in California tracks in that year of which 20 to 25 percent were California horses. The self-closing interpretation of section 5703 would give all arabians the special in-lieu tax advantage. 9 Originally it was separately stated as such. when part 12 was first enacted in 1971 the two sentences (parts) comprising of the definition of racehorse that now appears as section 5703 appeared in separate sections. The first sentence appeared as it does today in section 5703 in chapter 1 of the law entitled General Provisions and Definitions. (Stats. 1971, ch. 1759, § 8, p. 3799.) The second sentence was set forth in an independent section, 5742, which was contained in chapter 3 of the law entitled "Exclusions." It read: 7 86-107 modifies (cf. City of National City v. Fritz (1949) 33 Cal.2d 635, 636) and must be narrowly construed. (Ibid.; Marrujo v. Hunt (1972) 71 Cal.App.3d 972, 977.) Unfortunately the exclusion here is cast in crucial aspect with the very term it seeks to help define, thus inviting circularity and presenting the problem. Nevertheless, that the meaning of "racehorse" as it is used at the end of the exclusion part of section 5703 was meant to be less inclusive than its use at the beginning of the section is manifest from the Legislature's declared overall intention for enacting part 12. Section 5701 sets that forth as follows: "The Legislature finds that subjecting race- horses to the general property tax has resulted in a serious lack of uniformity as between one county and another respecting the method used in arriving at an assessed value; that this has resulted in serious inequities between the owners of racehorses depending in part on the county wherein they are assessed; that a continuation of current assessment practices will result in a substantial decrease in the breeding, boarding, and training of racehorses for racing competition in California and that cur- rent assessment practices have caused racehorse owners to remove their horses from California to other major breeding states with the result that over a period of time if these assessment practices are continued, both the breeding and racing of racehorses in California will suffer in that the quality and quantity of racehorses will be reduced and impaired; that a severe loss of employment and taxes to breeding and racing will result, attendance at race meetings will decrease, and betting will be reduced with consequent substantial loss of revenue to California. It is the intent of the Legislature, in enacting this part, to establish a more equitable method of taxing racehorses and thereby provide incentives to owners of these horses to maintain their horses within the state by providing for a uniform system of in-lieu taxation for the racehorses subject to the provisions of this part. The Legislature further "5742. A racehorse that does not participate in a horserace contest on which parimutuel wagering is permitted within two consecutive previous tax years and is not used for breeding purposes in order to produce racehorses shall not be considered a racehorse under the provisions of this part." (Stats. 1971, ch. 1759, § 8, p. 3810; emphasis added.) In 1972 the Legislature revised part 12 essentially to change the reporting period from a fiscal year to a calendar year basis. (Stats. 1972, ch. 665, 45, p. 1232.) (The age of a horse is so reckoned. (Tit. 4, Cal. Admin. Code, § 1420(c).) Section 5742 was repealed at that time (Stats. 1972, ch. 665, § 32, p. 1229) and its essence transferred to section 5703 (Stats. 1972, ch. 665, § 8, p. 1226). 8 86-107 finds that, because Arabian horses begin racing and breeding at least one year later than other breeds, Arabian horses should be treated equitably by allowing that breed four years before they are required to begin racing or be engaged in breeding activities." (§ 5701; emphases added.) The section we can see evinced a legislative concern that the horse racing industry in California would suffer if a uniform in-lieu system of lesser taxation were not adopted to promote it. The Legislature was not concerned with breeding of horses for show or any other purpose. Rather, its efforts were directed to creating a favorable tax-climate for the "breeding . . . and training of racehorses for racing competition . . ." (§ 5701; emphasis added) and we believe this is what is reflected in section 5703's exclusion from part 12 favorable tax treatment, those racehorses which "[have] not been used for breeding purposes in order to produce racehorses during the two previous calendar years." (§ 5703, emphasis added.) "Incentives" would be given, not to owners of all racehorses, but only to those of certain "racehorses subject to the provisions of part [12]." (§ 5701; cf. § 5768: "racehorses of a type subject to the provisions of this part. . . .") As we interpret the limitation found in section 5703, for an owner to be eligible for that in-lieu taxation under part 12 he or she would have to demonstrate that his or her registered three-year-old, or four-year-old in the case of an Arabian, which had not participated in a parimutuel contest, had truly been bred during the previous two calendar years in order to produce horses that were expected to race. The Legislature has established January 1st of each calendar year as the time when the tax imposed pursuant to part 12 is determined and due. (§ 5761.)10 Section 5722 sets forth the schedule of tax due depending upon a racehorse's classification and the owner of a horse reports the applicable tax on forms provided by the county assessor. (§ 5782.) The amount imposed varies and covers: "Stallions" according to "Stud fee classification" (highest amount imposed being $1,000, lowest $50); "Broodmares" from stakes-winning and producing ($75) to nonproducing broodmares ($12); active racehorses according to their past year's earnings (highest amount imposed being $150, lowest $40); and other racehorses such as stakes three-year- 10 Section 5761 provides: "The tax imposed pursuant to this part shall be determined as of 12:01 a.m. January 1 of the calendar year for which it is imposed and shall be immediately due and payable to the tax collector of the county in which the racehorse is domiciled." The tax due becomes delinquent at 5 p.m. on the 15th day of February of the calendar year for which it is imposed (§ 5762) with a 6 percent penalty attaching then and an additional 1 percent on the first day of every calendar month thereafter until the delinquent tax and penalties have been paid in full. (§ 5763.) Failure to file a report by the delinquent date carries an additional penalty of 10 percent (§ 5767); filing a false or fraudulent report with an intent to defeat or evade the in-lieu tax, an additional 25 percent. (Ibid.) 9 86-107 olds ($35) and nonactive racehorses ($20). (§ 5722; see Pesola v. City of Los Angeles (1975) 54 Cal.App.3d 479, 482.) We believe the Legislature contemplated that there would be a singularity of owner's purpose for breeding his or her horse which could be, and was to be, determined as of the time the horse was bred.11 Again, for a horse that has not raced to be eligible for in-lieu taxation under part 12, that purpose would have to be the desire to produce horses that would someday race. We reject the notion that an owner would also have to show that the progeny actually did race. There is nothing in the legislative history to indicate that that narrow a construction was ever intended, and surely the Legislature could have added a qualification to section 5703 to so narrow the field -- e.g., "used for breeding purposes in order to produce racehorses [which have actually raced] during the two previous calendar years" or "used for breeding purposes [which have produced horses which have actually raced] . . . ." (Compare § 5711.) Even if we could add such a qualification under the guise of statutory construction (but see Vallerga v. Dept. of Alcoholic Bev. Control (1959) 53 Cal.2d 313, 318; Rowan v. City of San Francisco (1966) 244 Cal.App.2d 308, 314) it would not work in the present statutory scheme. Inasmuch as most horses do not participate in parimutuel races before their third year, a requirement that a horse's progeny must actually have raced for the parent to qualify for favorable tax treatment would not square with the two-year time period spoken of in section 5703 to reckon the tax determined every January 1 on the sire or dam. (Cf. § 5761.) The periods for calculation simply would not mesh. In addition, so narrow a construction would not realistically serve the statutory purpose of promoting a viable horseracing industry in this state. When one breeds horses to produce racers, one has expectations that the progeny will actually race. But it is said that the biggest gamble in horse racing is the breeding: we are told for example that of the 25,000 to 30,000 thoroughbreds foaled yearly in California, only some 6,000 ever make it to a starting gate. Needless to say it would not serve to encourage the state's racing situation if favorable tax treatment were denied owners who actually have bred their horses for the purpose of producing horses that would race when 11 In other endeavors where one's purpose is the determinant of tax consequence, as for example whether a sale will be taxed as a retail sale (§§ 6007, 6051, 4 Cal. Admin. Code, § 1525(a)(b), "the California courts have consistently looked to the primary intent of the purchaser or the primary purpose of the purchase." (Kaiser Steel Corp. v. State Board of Equalization (1979) 24 Cal.3d 188, 192.) Such presupposes however that an undertaking admits multiple purposes which we understand not to be the case with the breeding horses to produce issue that would race. To the extent however that at the time of such breeding more than one purpose may be possible, section 5703 would demand that the desire to produce progeny that would race be the primary or dominant purpose. 10 86-107 it turns out for one reason or other that the progeny could or did not. (See e.g., Smithsonian, Vol. 17, No. 1 (April 1986) 116, 124.) The legislative purpose for enacting part 12 cannot be played against those averages of disappointed expectations. Moreover, to predicate eligibility for in-lieu taxation on the subsequent occurrence of whether a horse's foals have actually raced would be particularly unfair to the owners of stallions. Given that a foal usually remains with the mare after foaling and is owned by her owner, not only would such a demand impose a particularly onerous burden on the owner of a stallion which has sired many foals to keep track of their development after servicing in order to establish his tax status, but it would also make that status dependent on the doings of another, to wit, the owner of the mare who controls the foal. We therefore conclude that for part 12 purposes it is the intent of a horse owner at the time of breeding that determines whether a horse will be eligible for the favor- able in-lieu tax. If the owner's purpose at that time was to breed the horse to produce progeny that would race, it would be eligible and a later disappointment of the owner's expectations or a different happenstance use of the foal is irrelevant. Based essentially on the adage that "the pedigree proves the horse," there are objective criteria by which the intention or purpose of an owner for breeding his/her horse can be determined. One would look to the background of both the owner and the horse, as for example— Is the horse's family line noted for having produced horses which have actually raced? Has the subject horse itself ever produced earlier progeny which have raced? Does the owner's advertising for stud services or syndication sales stress racing heritage and racing desirability, or does it stress instead halter performance, showability and show records? Are the subject horse and its earlier progeny placed on farms specializing in race training (e.g., ones complete with track and starting gates) or do the farms specialize instead in conditioning and lay-up? What type of training is provided the horse? Is the owner active in the racehorse industry and in the various racing associations (e.g., the Arabian Racing Association of California which breeds arabians for racing)? What is his or her history for breeding horses which have raced? 11 86-107 Does the owner have any of the required licenses to take part in horseracing contests12/ What does his recordkeeping and tax reporting indicate regarding the purpose of his/her breeding activities (e.g., racehorses are depreciated on a three-year life, other horses over five years)?13 While divining "purpose" usually involves probing subjectivity, and "intent" is a fact only its possessor can know with certainty, determinations about them can be made by others on objective manifestations, albeit circumstantial evidence. We have offered the foregoing as some examples of objective factors that can be used to determine whether a horse owner had bred his or her horse in order to produce progeny that were expected to race. Accordingly, in answer to the question posed herein we conclude that whether the subject Arabian would be eligible for part 12 in-lieu taxation as a "racehorse" would depend on whether he had been used for breeding on the expectation that his issue would someday race. Whether a particular horse was used for breeding with the expectation that the issue would someday race is a question of fact for the assessor to determine from the evidence. ***** 12 Breeders of horses do not have to be licensed by the California Horse Racing Board for that endeavor. However, for a horse to actually race, its owner must be licensed. (See, e.g., tit. 4, Cal. Admin. Code, §§ 1420(n), 1505, 1588(g); cf. id., § 1895.) 13 The in-lieu tax imposed by part 12 may be imposed at any time within five years after the tax would have otherwise become due. (§ 5766.) Section 5768 requires owners to keep "business records relevant to the number and type of racehorse located in any county of the state during any taxable period. . . . for a period of five years from the date any tax to which they relate becomes due." (§ 5708.) The owners, we remember, are required to report tax due under part 12 by February 15th of the calendar year for which it is imposed. (§ 5782; cf. §§ 5761, 5762, see fn. 10 & accompanying text.) A county assessor may demand substantiation of reported claims: Section 5768 provides that upon an assessor's request "an owner of racehorses of a type subject to [part 12 taxation] shall make available . . . a true copy of [his] business records relevant to the number and type of racehorses located in [the] county. . . ." Section 5765 provides that the assessor "may perform audits of the books and records . . . to determine if the correct information has been reported and the proper amount of tax has been paid." (§ 5765, subd. (a).) 12 86-107

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/3176484/

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs October 27, 2015 RHYUNIA LAMONT BARNES v. STATE OF TENNESSEE Appeal from the Criminal Court for Davidson County No. 97-D-2542 Steve Dozier, Judge No. M2015-01061-CCA-R3-ECN – Filed February 10, 2016 A Davidson County jury convicted the Petitioner, Rhyunia Lamont Barnes, of first degree premeditated murder, and the trial court sentenced him to life in prison. The Petitioner appealed, arguing that there was newly discovered evidence. This Court affirmed the Petitioner‟s conviction. State v. Rhyunia Lamont Barnes, No M2010-00631-CCA-R3- CD, 2002 WL 1358717, at *1 (Tenn. Crim. App., at Nashville, June 24, 2008), perm. app. denied (Tenn. Dec. 2, 2002). In 2009, the Petitioner filed a petition for a writ of error coram nobis, which the coram nobis court summarily dismissed on the basis of it being untimely filed. This Court affirmed that judgment. In 2015, the Petitioner filed this, his second petition for a writ of error coram nobis, alleging that he had newly discovered evidence in the form of an ATF report that exonerated him as well as some emails between his attorney and the prosecutor that indicated his innocence. The coram nobis court summarily dismissed the petition, finding that it was untimely filed and that the allegations contained therein, even taken as true, did not prove his innocence or that the result of his trial would have been different. On appeal, the Petitioner contends that the coram nobis erred when it summarily dismissed his petition and that he is entitled to coram nobis relief. After a thorough review of the record and applicable authority, we affirm the coram nobis court‟s judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ROBERT W. WEDEMEYER, J. delivered the opinion of the Court, in which JOHN EVERETT WILLIAMS and D. KELLY THOMAS, JR., JJ. joined. Rhyunia Lamont Barnes, Pikeville, Tennessee, pro se. Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Glenn R. Funk, District Attorney General; and J. Wesley King, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Facts A. Trial The Davidson County grand jury indicted the Petitioner on November 10, 1997, for the first degree premeditated murder of Carlton Martin that occurred on September 2, 1997. This Court summarized the evidence presented against him at trial as follows: Joyce Martin testified she lived with her two sons, 24 year-old Da‟Shon Martin, the victim, and 19 year-old Carlton Martin. She stated that on September 2, 1997, at approximately 2:00 p.m., Tom Morrell, a neighbor, came to her door and asked if the victim w[as] home. Martin responded the victim was sleeping in his room, and Morrell walked toward his room and told the victim someone wanted to see him. Morrell then walked out of the residence and returned to his home. Martin stated she looked outside her house and saw the [Petitioner], whom she had never met, standing at her gate. The victim exited the residence, stood on the porch, and inquired what the [Petitioner] wanted. Martin said she next saw the [Petitioner] brandish a pistol, at which time the victim ran back inside the house. The [Petitioner] then said, “Your son stole my jewelry, and I‟m going to kill him;” the victim ran to the back of the house; and the [Petitioner] ran to her backyard with his gun in his hand. Martin explained her back door was secured by a deadbolt key lock which required a key to open. Martin further testified she phoned 911 while the victim was hiding in the back of the residence, and the [Petitioner] was in the backyard. The [Petitioner] then ran back inside her front door holding his gun. The [Petitioner] then said twice that he would shoot the victim‟s mother if the victim did not come out of hiding. At that point, the [Petitioner] ran toward the bathroom at the rear of the house, and another man, later identified as James Barnes, the [Petitioner‟s] father, entered the residence and inquired about his son. Martin told James Barnes the [Petitioner] went to the rear of the house. Martin testified she then heard one shot and fled from the residence to a neighbor‟s home. Martin identified the murder weapon as the gun she saw in the [Petitioner‟s] hand. Tommy Morrell, a neighbor, testified that on September 2nd, the [Petitioner] arrived at approximately 3:00 p.m. riding in the front seat of a vehicle driven by an older man. Morrell testified the [Petitioner] requested he get the victim. Morrell further stated he went inside the victim‟s house 2 and told the victim “two guys” wanted to see him, and Morrell exited the house. When Morrell reached the front gate, he saw the victim step onto the porch. Morrell later saw the [Petitioner] go inside the gate. Morrell further stated the older man was seated in the car. Morrell explained he knew “something [was] going down,” so he went back to his house and instructed his mother to stay inside. Morrell stated the older man exited the car; the [Petitioner] first ran in the house but then exited the house telling the older man that “[the victim] might have gone out the backdoor;” the [Petitioner] ran around one side of the house, while the older man ran around the other; the [Petitioner] ran back around to the front of the house and entered it brandishing a gun; the older man entered the house; and he heard a gunshot. Morrell stated he never saw the older man with a gun. On cross-examination, Morrell denied receiving drugs as compensation for summoning the victim outdoors. Metro Police Officer Jerry Bottom testified he arrived on the scene within one minute of receiving the dispatch and saw the [Petitioner] running across the street holding his waistband. Officer Bottom stated his first priority was the victim, and since a second cruiser had arrived, he entered the victim‟s residence through the open front door and found the wounded victim on the floor. Officer Bottom stated he saw a man standing by a parked car when he initially arrived; he was unsure if the [Petitioner] ran from inside the home; and the interior of the home exhibited no signs of a struggle. Metro Police Officer Marshall James Brown testified he and his partner, Officer Chris Locke, arrived at the scene immediately after Officer Bottom. Officer Brown stated that while he and Officer Locke were walking toward the residence, the [Petitioner] ran from across the street and dove head first into the backseat of a parked car. He additionally stated James Barnes walked toward the vehicle‟s driver‟s side. He and Locke then detained them, and Joyce Martin identified them as the persons in her home. On cross-examination, Officer Brown stated James Barnes was bleeding from a cut on his hand. Officer Chris Locke corroborated Officer Brown‟s testimony. He further testified the [Petitioner] made remarks after being arrested; he activated his pocket audio recorder to record the [Petitioner]; and he made notes during the [Petitioner‟s] outbursts. He testified the [Petitioner], while being handcuffed, stated that the victim should not break in his house and 3 steal his jewelry. At that point, Officer Locke placed the [Petitioner] in the rear seat of the cruiser, activated his pocket audio recorder, and sat in the driver‟s seat for approximately one hour and fifteen minutes. Officer Locke also wrote down the [Petitioner‟s] statements verbatim. Officer Locke testified from his written notes, which indicated the [Petitioner] said: I went in the house with him; I didn‟t shoot him; I threw my dope in the alley; that‟s why I ran. I ain‟t did nothing. I ain‟t got no gun; what [are] you detaining me for . . . . He needed to quit lying on me. He finded [sic] no gun on me. Why am I being detained? I ran and dumped my dope and came back . . . No gun, no motive. I ain‟t got no lie to tell. I dumped my dope. He stole my jewelry. At that point, other officers found a gun in the [Petitioner‟s] line of sight, and the [Petitioner] said, “Man, ain‟t found no gun on me. Man, how do you know it was me; that could have been anybody‟s. Whose gun? I know my lawyer will get me off. I got money; I got big money. Take me down so I can make bond.” The [Petitioner] also stated, “Man, he steals $4,000 worth of jewelry and I‟m supposed to let it ride. F* *k that s* *t, man.” Metro Police Investigator David Elmore testified he searched the area and found a gun hidden inside a plastic bag of clothing in a pile of garbage across the street from the victim‟s residence. Metro Police Officer Charles Ray “Friday” Blackwood testified he searched the victim‟s residence and was unable to find a weapon; he recovered three live .38 shells from James Barnes‟ pocket; and the .38 revolver found in the garbage had five spent casings in its chambers. Medical Examiner Dr. Bruce Levy testified the victim died as a result of three gunshot wounds fired from a distance of “greater than 18 to 24 inches” from the victim‟s body. Although Dr. Levy stated the victim had small abrasions on his chin, arm, back, and abdomen, he opined they were not the result of a struggle. Danny Morris, a specialist in latent fingerprint analysis with the Metro Police Identification Division, testified a palm print was recovered from the weapon that did not match the [Petitioner‟s] print. Morris explained, however, this evidence did not definitively establish that the 4 [Petitioner] never handled the gun since there are numerous reasons why one could touch a surface and not leave a latent print. Metro Police Detective Kent McAlister testified he searched the crime scene and was unable to find a gun or spent shell casings. Det. McAlister stated although the [Petitioner] and James Barnes were initially both suspects, the charges against James Barnes were dropped at his preliminary hearing. He explained James Barnes was not initially fingerprinted because his hand was bandaged, and after the charges were dropped, it became impossible to obtain his prints. Metro Police Detective Jeff West testified he assisted in interviewing the [Petitioner] at the police station. He testified that although he could not recall if the [Petitioner] and James Barnes were seated together while awaiting questioning, it was unlikely because standard procedure dictates they be separated. Det. West testified the [Petitioner] confessed to the crime and told him to release James Barnes because he had “nothing to do with it” and had tried to stop him from going into the Martin residence with his gun. TBI firearms expert Steve Scott testified the shell casings and bullet fragments submitted for analysis were fired from the .38 revolver. Scott conceded the gun was not tested for the presence of blood or tissue, and it was possible for a person‟s hand to become injured if caught between the weapon‟s hammer and firing pin. The [Petitioner] testified when he got in the car with his father, James Barnes, on September 2nd, he did so with the intention of receiving a ride to visit his son. The [Petitioner] stated his father requested the [Petitioner] direct him to the [Petitioner]‟s drug supplier, a person by the name of “Ricko,” which the [Petitioner] did. After their arrival, James Barnes asked Ricko the location of his stolen jewelry, and they drove to the [Petitioner]‟s residence to replevy the jewelry. The [Petitioner] stated his father parked his vehicle on the street near the victim‟s residence, handed the [Petitioner] the revolver, and told the [Petitioner] to place it in his pocket. The [Petitioner] testified the gun remained in his shorts until he handed it back to James Barnes. He stated that, under the instruction of James Barnes, he gave Tommy Morrell drugs to summon the victim outside. 5 The [Petitioner] further testified he and James Barnes walked toward the residence, and the victim exited onto the porch. When the [Petitioner] inquired, “where [is] the jewelry,” the victim ran back inside the home. The [Petitioner] stated he then stepped in the front room of the house, and the victim‟s mother told him to “get out;” he exited and ran around the side of the house, attempting entry through the back door; and since the door was locked, he returned to the front of the house where he handed James Barnes the gun. The [Petitioner] said he “[g]ave [James Barnes] the gun back [and] started out [of] the yard . . . thinking he‟s coming behind me . . . thinking it‟s over.” The [Petitioner] further stated once he arrived at the car, he realized his father had not followed him, so he re[-]entered the residence, went to the rear of the home, and saw the victim run to the bathroom. He then attempted to open the bathroom door, which was either locked or being held, and as he started to leave the home again, James Barnes fired a shot through the bathroom door. After the shot was fired, the victim exited the bathroom and struggled for the gun with James Barnes. The [Petitioner] stated that after a brief struggle, James Barnes fired shots, handed the [Petitioner] the gun, and they exited the home. The [Petitioner] stated he then ran across the street and discarded his “eighty-ball” of “dope” and the gun. He stated that he ran back to the car because he thought he left his beeper in the car and then dove into the car. The [Petitioner] stated he had no intention of killing the victim, and after he was arrested, he made admissions to Officer Locke because “in [his] neighborhood, it‟s like, you try to make the police as mad as you can by being as smooth as you can with them. You just smart off to them, just try to smart off to them, make them mad cause like-that‟s all I was doing was really just mouthing off.” The [Petitioner] further testified he was seated next to his father at police headquarters, and his father intimidated him, so he confessed to the crime. The [Petitioner] explained he was fearful of his father, and his father had always said “the worst thing you can be is a snitch.” The [Petitioner] further testified he “probably” threatened to shoot the victim‟s mother, but did so to try to scare her out of the house so “no more innocent bystanders [would get] hurt;” he got blood on his shorts while attempting to protect the victim by trying to separate James Barnes from him; and James Barnes wiped the gun clean prior to giving it to him. 6 The [Petitioner] further admitted he had contact with James Barnes while awaiting trial on bond, and he conceded he said he was on bond because of the person he killed, but explained it was just “everyday neighborhood talk.” Saunte Lewis Young, the [Petitioner]‟s sister, testified the [Petitioner] never owned jewelry; James Barnes wore jewelry; James Barnes had previously “cut” the [Petitioner]; and they had previously shot at each other. Sandra Barnes, the [Petitioner]‟s mother, testified the [Petitioner] and James Barnes had a bad relationship, but she had requested the [Petitioner] try to get along with him. The jury convicted the [Petitioner] of premeditated first degree murder. Barnes, 2002 WL 1358717, at *1-5. The Petitioner appealed this Court‟s affirmance of his conviction and sentence, and the Tennessee Supreme Court denied the Petitioner‟s request to appeal. Id. B. Post-Conviction In 2003, the Petitioner filed a petition for post-conviction relief in which he alleged that his trial counsel was ineffective and that his constitutional right to confront witnesses had been violated. The post-conviction court appointed the Petitioner counsel, held a hearing, and dismissed the petition. The Petitioner appealed, and, on appeal, this Court summarized the facts presented during the post-conviction hearing as follows: At the post-conviction hearing, trial counsel testified that the [P]etitioner‟s defense was that Barnes shot the victim and coerced the petitioner to confess to the crime through intimidation. Counsel stated that she was aware that both the [P]etitioner and his father were arrested as co- suspects and that Barnes had three .38 caliber shells in his pocket and an injury on his hand. She further testified that, after the murder weapon was recovered and analyzed for prints, the results revealed that the prints lifted from the gun did not match those of the [P]etitioner. While she acknowledged that she believed the print may have belonged to Barnes, she stated that she was not aware of any way to compel him to provide prints for comparison. She further stated that she did not entertain the possibility of getting the print surreptitiously because she did not know where Barnes was. Counsel also stated that she did not recall whether the police 7 conducted a gunshot residue test on either the [P]etitioner or Barnes to determine who, in fact, fired the weapon. Counsel also stated that, although she “would have loved to” have interviewed Barnes, she never attempted to, and further explained, “I did not know where [ ] Barnes was. I talked with [the Petitioner] on several occasions about getting [ ] Barnes involved in this case and [the Petitioner] did not want to do that.” She further testified that the [P]etitioner would not assist her in locating Barnes. Counsel stated that she spoke with both the [P]etitioner and his mother during trial about getting Barnes involved in the [P]etitioner‟s defense; however, she stated, “They were both fearful of [ ] Barnes, and I told them that the police would protect them and they laughed at me.” Regarding the failure to call Barnes as a witness, counsel testified that his absence from the witness list was a strategic decision based on the understanding that, if called to the stand, Barnes would incriminate the [P]etitioner. As to the double hearsay statement introduced by the State via audiotape, counsel explained that she filed a motion in limine, which was granted by the trial court, to preclude all of Barnes‟ hearsay statements. She testified that she did not know that the State was going to play the tape as they were under court order not to introduce such statements. She further stated that once the tape began to play, she expected the State to stop the tape before the hearsay statement was played. Counsel testified that after Barnes‟ hearsay statement played, she was “very angry” and: was kind of wondering if [she] should stand up and make a big deal out of it in front of the jury or if [she] should wait until there was an opening and a break for [her] to kind of slip and not call a lot of attention to what had happened in front of the jury. When asked why she did not object before the statement played, she reiterated that she thought the State was going to stop the tape prior to that point. Specifically, she stated, “I had no idea the State was going to play it, sir. The State was under an order not to put in any hearsay statements by [ ] Barnes, and I trust a court order.” On cross-examination, [C]ounsel testified that she met with the [P]etitioner weekly in the four months preceding trial, with each meeting lasting between thirty minutes and one hour. She further stated that an 8 investigator talked to neighborhood residents, the victim‟s mother, and had “a lot of contact” with the [P]etitioner. Counsel also testified that she reviewed all discovery material and discussed trial strategies with the [P]etitioner, considering every possible defense available to him, prior to trial. Counsel testified that she knew that the [P]etitioner told police he acted alone in killing the victim and that the victim‟s mother identified the [P]etitioner as entering the home with a gun and chasing the victim to the back of the house. Counsel stated that, based upon the facts of the case, she believed the only available defense was that the [P]etitioner gave a false confession and that Barnes had, in fact, murdered the victim. She reiterated that the [P]etitioner made it clear on multiple occasions that he did not want to involve his father in the defense because he was afraid of him. Counsel testified that she felt that calling Barnes as a witness carried an “extremely high” risk and that she thought it would be more beneficial to assert that the [P]etitioner was not the killer if his father was not present; she believed this position would be bolstered by the fingerprint analysis indicating that the [P]etitioner‟s prints were not on the weapon. Counsel further stated that it “would have been very nice” to have been able to determine whose prints were left on the murder weapon; however, she knew of no legal vehicle that could have been utilized to compel Barnes, who was not a criminal defendant, to submit to print analysis. As to the double hearsay statement, counsel reiterated that she believed the State was under court order not to produce hearsay statements of Barnes and that she did not object to the playing of the tape because she thought the State had redacted the portion of the tape containing the hearsay statement. Counsel recalled that she requested a mistrial after the statement played; however, it was denied by the trial court. She also acknowledged that the statement was consistent with the defense theory that Barnes killed the victim and forced the [P]etitioner to accept responsibility. On redirect examination, counsel reiterated that, although she wanted to speak with Barnes, the [P]etitioner did not want to involve him in the case. As a result, counsel determined that “it might be easier to point the finger at someone who [was] not there.” She further acknowledged that the jury heard Barnes‟ hearsay statement and that the [P]etitioner never got the benefit of cross-examination from defense counsel. Counsel also 9 admitted that she did not consult with other attorneys about how she might obtain Barnes‟ prints for comparison. Finally, she acknowledged that she was mistaken in believing that the motion in limine excluded the taped statement and further explained: I had an order from The Court saying there were no statements of [ ] Barnes to be put in front [of] a jury. So I trust a court order. And based upon my experience of trying other cases, I know that the State is very good about keeping hearsay statements out. .... I believed that court order absolutely protected [the Petitioner]. Sandra Barnes, the [P]etitioner‟s mother, recalled that both her son and her husband were arrested for the shooting death of the victim. She further testified that, although they maintained separate residences, she saw Barnes more than once a week because they lived in the same neighborhood. She stated that Barnes was living openly in Nashville and was not avoiding defense counsel or the police. Finally, she stated that Barnes did not leave town during the [P]petitioner‟s trial. The [P]etitioner testified as the final witness at the post-conviction hearing. He stated that his defense at trial was that his father shot and killed the victim. He further testified that the police did not perform a gunshot residue test on him or his father. The [P]etitioner stated that he submitted to fingerprint analysis and that the results indicated that his prints did not match those taken from the murder weapon. He also testified that he showed the investigator where his father lived, and when asked whether he instructed counsel to involve his father, the [P]etitioner responded, “Anything that is going to get me off, do what you have to do.” Finally, he stated that his father passed away in October 2002. At the conclusion of the hearing, the post-conviction court took the petition under advisement and subsequently issued an order denying relief. Regarding the Confrontation Clause issue, the post-conviction court opined: Whether this issue is defined as prosecutorial misconduct, breach of the hearsay rules, or violation of the right of 10 confrontation, the trial court gave a curative instruction and the Court of Criminal Appeals ruled that that instruction cured any error. Any consideration of prejudice must be measured against the facts testified to at trial and the [P]etitioner‟s multiple confessions that he killed the victim. As to the remaining issue of ineffective assistance of counsel, the court found that “in all respects, except possibly one, the trial counsel‟s services were well within the range of competence demanded by attorneys in criminal cases.” The court went on to note that the only possible exception, trial counsel‟s failure to require redaction of the double hearsay played before the jury, was remedied when the trial court gave a curative instruction, which was held by this Court to be sufficient to curtail any prejudice that might have resulted. In sum, the court found that, “[I]f there was error on counsel‟s part it was not an error that had an adverse effect on the verdict.” Therefore, the trial court denied post-conviction relief and the [P]etitioner filed a timely appeal to this court. Rhynuia L. Barnes v. State, No. M2004-01557-CCA-R3PC, 2005 WL 2139408, at *2-6 (Tenn. Crim. App., at Nashville, Sept. 2, 2005), perm. app. denied (Tenn. Feb. 6, 2006). On appeal, this Court, when reviewing the claim under the Confrontation Clause, concluded that counsel was not ineffective and that the statement did not prejudice the Petitioner. We further concluded that the evidence did not preponderate against the post- conviction court‟s finding that Counsel rendered effective assistance of counsel. Id. at *1. C. Error Coram Nobis In October 2009, the Petitioner filed his first petition for a writ of error coram nobis, alleging that a letter written by his late father, confessing to the murder, was newly discovered evidence. Rhyunia L. Barnes v. State, No. M2010-01554-CCA-R3-CO, 2011 WL 6322500, at *5 (Tenn. Crim. App., at Nashville, Oct. 27, 2011). The trial court summarily dismissed the petition because it was “filed more than one year after the statutory limitations period,” and the Petitioner “had been given reasonable opportunity to present such evidence at this trial and during the post-conviction proceedings.” Id. The Petitioner appealed to this Court, and we affirmed the lower court‟s dismissal. Id. at *7. After reviewing the issue, we concluded that a strict application of the statute of limitations in this case would not deny the Petitioner a reasonable opportunity to have presented the claim of newly discovered evidence. Id. We noted that the Petitioner did not present written proof of his claim in the nature of a “confession” by his father in a 11 signed and dated document within a reasonable time period and, instead, he waited seven more years to rely on an unsigned, undated document. Id. In March 2015, the Petitioner filed the petition for writ of error coram nobis that is the subject of this appeal. In the petition, the Petitioner alleged that there was newly discovered evidence in his case. He asserted that the State wrongfully failed to give the defense a report from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), which would have exonerated him of this killing. In his petition supporting this allegation, the Petitioner stated that: On October 14, 1997, Kenneth McAlister sent an E-mail to District Attorney Kimberly Haas, informing her of the following: I ran a check through A.T.F. and the woman the car belonged to they was driving that day b[ought] the gun in a pawn shop on Gallatin Road. He further alleged that other emails from Mr. McAlister, who worked in the same office as Ms. Haas, promised to send Ms. Haas the ATF report. The Petitioner avers that another email from Ms. Haas stated that she would once again be prosecuting an innocent man for murder, referring to the Petitioner‟s case. The Petitioner claimed that the ATF report was never provided to the defense. He asserts that this report would have provided exculpatory evidence by showing: (1) that the woman in the report was James Barnes‟s girlfriend, (2) that she gave James Barnes access to her car and the gun in question; and (3) that his fingerprints were not found on the gun, proving he was not the shooter. The Petitioner stated that he did not receive copies of these emails until January 27, 2015, when the State turned them over pursuant to his Public Records Act request. Attached to the petition are the emails about which the Petitioner complains. In an email dated October 14, 1997, from Mr. McAlister to Ms. Haas, Mr. McAlister stated: [The Petitioner] said his father knew they were going to look for the victim in his statement. [The Petitioner] also said he bought the gun fr[o]m a „junkie‟ on the street. I ran a check through A.T.F. and the woman the car belonged to they were driving that day bought the gun in a pawn shop on Gallatin Road. [The Petitioner‟s] father had some live rounds in his pocket. 12 Look at maybe an accessory case on him. I‟ll send you a copy of the A.T.F. report. On October 15, 1997, Mr. McAlister sent Ms. Haas another email stating: I understand. I just wanted you to know about the gun and the ammo. Something else I forgot to tell you yesterday, the victim[‟s] mother said the father had a gun but just like you said we did not find one. When I interviewed her she just said he had one but at the preliminary hearing she changed her story and said he pointed it at her. I just wanted you to know because I feel sure she will bring this up again. In August 1999, two years later, there are an exchange of emails between the Petitioner‟s attorney and Ms. Haas. The Petitioner‟s attorney states to Ms. Haas: Dear Colonel, I have the dubious honor to inform you that the motion on [the Petitioner] is currently set for October 14, 1999 at 1:15 in the afternoon before Lieutenant Kurtz. It is with bated breath that I eagerly await to hear your response to this motion especially to grounds 2 through 4. Sincerely, Kevin Sanders, Sub-Private First Class. Ms. Haas‟s response was: I have not received the motion to which you refer, so I am breathlessly awaiting its receipt since it is probably as bitchy as its proponent. Just to let you know, I will be (once again prosecuting an innocent man for murder in Div 1 that week, and might not be out of trial by 10/14 (it is a very convoluted circumstantial case). I guess I can just tell LT Kurtz to drop and give me twenty if he gives me any trouble with the def. motion!!!! Based upon this evidence, the coram nobis court summarily dismissed the Petitioner‟s petition. It found: The [P]etitioner asserts that he has newly discovered evidence in the form of an A.T.F. report as mentioned in an email from Kenneth McAlister to Assistant District Attorney Kymberly Haas. The email informed Ms. Haas that he “ran a check through A.T.F. and the woman the car belonged 13 to [that] they were driving that day bought the gun in a pawn shop on Gallatin Road.” The [P]etitioner alleges the A.T.F. report would be exculpatory in that it would show that the woman in the report was James Barnes‟ girlfriend, and she gave James Barnes access to her car and the gun in question. Further, he alleges that it would have helped his defense at trial by showing the jury why his finger prints were not found on the gun and that he was not the shooter. As noted in the [P]etitioner‟s direct appeal, The [S]tate‟s proof established the following: The [Petitioner] entered the victim‟s home brandishing the murder weapon, demanded his jewelry, and told the victim‟s mother he intended to kill the victim. The [Petitioner] went around to the back of the residence seeking the victim and, not being able to unlock the back door, reentered through the front door. He threatened to kill the victim‟s mother. The victim was shot three times at close range; the [Petitioner] discarded the weapon outside; and the [Petitioner] confessed to the crime at the police station, stating his father had “nothing to do with it.” Barnes, Tenn. Crim. App. 2002 WL 1358717 at 11. In addition, the appellate court indicated [t]he record reflects that overwhelming proof was presented at trial implicating the [P]etitioner as the murderer. Specifically, the evidence established that the [P]etitioner requested that Morrell summon the victim from his home, that the petitioner brandished a weapon, and that he accused the victim of stealing his jewelry. The record further reflects that the [P]etitioner chased the victim to the back of the residence and threatened to kill the victim‟s mother if the victim did not come out. The [P]etitioner then ran outside as Barnes entered the residence to inquire as to his son‟s whereabouts. Immediately thereafter, the victim was shot three times and died as a result. During an interview at the police station following the incident, the [P]etitioner confessed to killing the victim. 14 Barnes, Tenn. Crim. App. 2005 WL 2139408 at 6. This petition was filed more than one year after the statutory limitations period. The [P]etitioner‟s motion for a new trial was denied March 8, 2001.[FN1] Therefore, the Court finds that the [P]etitioner‟s claims are untimely, approximately thirteen (13) years beyond the one year statute of limitations. The Court finds that due process considerations do not preclude the application of the limitations period. The [P]etitioner could have requested this information within a reasonable time giving him ample opportunity to request relief within the limitations period. Further, even if taken as true, this “newly discovered evidence” does not show the [P]etitioner was actually innocent nor would this new evidence possibly lead to a different result. Rather, the record reflects that overwhelming proof was presented at trial implicating the [P]etitioner as the murderer. Therefore, the petition is dismissed. [FN1] The [P]etitioner‟s final direct appeal was denied December 2, 2002. It is from this order that the Petitioner now appeals. II. Analysis On appeal, the Petitioner contends that the coram nobis court erred when it summarily dismissed his petition and that he is entitled to coram nobis relief. He asserts that due process considerations require that the statute of limitations be tolled. He states that the prosecution‟s email was not a joke and that the prosecutor knew that she was prosecuting an innocent man. He further asserts that he has been unable to obtain the ATF report from the State since learning of its existence. The State concedes that the trial court dismissed the petition as time-barred even before it raised the statute of limitations as an affirmative defense. It asserts, however, that this Court should affirm the lower court‟s summary dismissal because the petition does not state a colorable claim for coram nobis relief. A writ of error coram nobis is available to a defendant in a criminal prosecution. T.C.A. § 40-26-105(a) (2014). The decision to grant or to deny a petition for the writ of error coram nobis on its merits rests within the sound discretion of the trial court. Ricky Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). Tennessee Code Annotated section 40-26-105(b) provides, in pertinent part: 15 Upon a showing by the defendant that the defendant was without fault in failing to present certain evidence at the proper time, a writ of error coram nobis will lie for subsequently or newly discovered evidence relating to matters which were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial. A writ of error coram nobis is an “extraordinary procedural remedy,” filling only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). As previously noted by this Court, “the purpose of this remedy „is to bring to the attention of the [trial] court some fact unknown to the court, which if known would have resulted in a different judgment.‟” State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1996)). To establish that he is entitled to a writ of error coram nobis, the Petitioner must show: (a) the grounds and the nature of the newly discovered evidence; (b) why the admissibility of the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial; (c) that the Petitioner was without fault in failing to present the newly discovered evidence at the appropriate time; and (d) the relief sought. Hart, 911 S.W.2d at 374-75. Affidavits should be filed in support of the petition. Id. at 375. The grounds for seeking a petition for writ of error coram nobis are not limited to specific categories, as are the grounds for reopening a post- conviction petition. Coram nobis claims may be based upon any “newly discovered evidence relating to matters litigated at the trial” so long as the petitioner also establishes that the petitioner was “without fault” in failing to present the evidence at the proper time. Coram nobis claims therefore are singularly fact-intensive. Unlike motions to reopen, coram nobis claims are not easily resolved on the face of the petition and often require a hearing. Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). “Similar to habeas corpus hearings, coram nobis evidentiary hearings are not mandated by statute in every case.” Richard Hale Austin v. State, No. W2005-02591-CCA-R3-CO, 2006 WL 3626332, *5 (Tenn. Crim. App., at Jackson, Dec. 13, 2006), no Tenn. R. App. P. 11 filed. A petition of either type “„may be dismissed without a hearing, and without the appointment of counsel for a hearing‟” if the petition does not allege facts showing that the petitioner is entitled to relief. Id. (quoting State ex rel. Edmondson v. Henderson, 421 S.W.2d 635, 636 (Tenn. 1967)). 16 A petition for a writ of error coram nobis must be filed within one year of the judgment becoming final in the trial court. T.C.A. § 27-7-103. This statute of limitations “is computed from the date the judgment of the trial court becomes final, either thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the statute does not begin to run until the conclusion of the appeal as of right proceedings.”). In the present case, the judgment became final in 1998. The Petitioner did not file this petition for writ of error coram nobis until July 2014, more than fifteen years later. The one-year statute of limitations for a petition for writ of error coram nobis may be tolled on due process grounds if a petition seeks relief based upon newly discovered evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the statute should be tolled, the court must balance the petitioner‟s interest in having a hearing with the State‟s interest in preventing a claim that is stale and groundless. Id. Generally, “before a state may terminate a claim for failure to comply with . . . statutes of limitations, due process requires that potential litigants be provided an opportunity for the presentation of claims at a meaningful time and in a meaningful manner.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule requires three steps: (1) determine when the limitations period would normally have begun to run; (2) determine whether the grounds for relief actually arose after the limitations period would normally have commenced; and (3) if the grounds are “later arising,” determine if, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reasonable opportunity to present the claim. Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995). As a general rule, the claim at issue must not have existed during the limitations period to trigger due process consideration. Seals v. State, 23 S.W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence of a claim does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim. App. 1994). The State bears the burden of raising the bar of the statute of limitations as an affirmative defense. Harris, 102 S.W.3d at 593. This Court has stated that “the statute of limitations is an affirmative defense which must be specifically pled or it is deemed waived.” Newsome v. State, 995 S.W.2d 129, 133 n.5 (Tenn. Crim. App. 1998). This Court has affirmed a coram nobis court‟s summarily dismissal of a petition for writ of error coram nobis when the dismissal occurred before the State responded and asserted a 17 statute of limitations defense when the petition had been filed after the statute of limitations had tolled. See Antoinette Hill v. State, No. E2013-00407-CCA-R3-PC, 2013 WL 5634108, at *3 (Tenn. Crim. App., at Knoxville, Oct. 16, 2013), perm. app. denied (Tenn. Apr. 8, 2014) (citing State v. Johnny L. McGowan, Jr., No. M2007-02681-CCA- R3-CO, 2008 WL 4170273 (Tenn. Crim. App., at Nashville, Aug. 5, 2008)). In the case under submission, we conclude that the trial court properly determined that the petition was time barred and that due process considerations did not require a tolling of the statute of limitations. The Petitioner‟s motion for a new trial was denied March 8, 2001. His appeal was denied on June 24, 2002, and the Tennessee Supreme Court denied his application to appeal on December 2, 2002. His petition for writ of error coram nobis was filed March 28, 2015, well beyond his one-year statute of limitations. Further, as noted by the coram nobis court, the evidence against the Petitioner was overwhelming, so due process does not require tolling of the statute of limitations. Even if the Petitioner‟s allegations are taken as true, and there is an ATF report that shows that the Petitioner‟s father‟s girlfriend purchased the murder weapon, the facts remain that the Petitioner approached the victim‟s house, told the victim‟s mother he intended to kill the victim for stealing his jewelry, and chased the victim to the yard behind the home where the victim was shot and killed. The Petitioner was seen discarding the murder weapon, and he confessed to police that he killed the victim. The fact that his father‟s girlfriend purchased the murder weapon is not a fact that may have resulted in a different judgment if the evidence had been admitted at the previous trial. Lastly, it is quite obvious that the email exchange between attorneys Sanders and Haas contains sarcasm and attempts at “humor” by both attorneys. The e-mail exchange certainly does not constitute newly discovered evidence that would warrant error coram nobis relief. The Petitioner is not entitled to relief. III. Conclusion In accordance with the aforementioned reasoning and authorities, we affirm the coram nobis court‟s judgment. _________________________________ ROBERT W. WEDEMEYER, JUDGE 18

01-03-2023

02-10-2016

https://www.courtlistener.com/api/rest/v3/opinions/4023498/

United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-3121 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Todd Karl Bramer lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of South Dakota - Aberdeen ____________ Submitted: May 31, 2016 Filed: August 11, 2016 [Published] ____________ Before SMITH, BEAM, and KELLY, Circuit Judges. ____________ PER CURIAM. Todd Bramer pled guilty to one count of possession of firearms by a prohibited person—specifically, an unlawful user of a controlled substance—in violation of 18 U.S.C. § 922(g)(3). In his written guilty plea, Bramer admitted to “knowingly possess[ing] firearms,” including two handguns and at least one other firearm, while “being an unlawful user of marijuana.” Bramer also waived the right to appeal all non-jurisdictional issues. On appeal from the district court,1 Bramer argues that § 922(g)(3), which makes it unlawful for “any person . . . who is an unlawful user of or addicted to any controlled substance” to possess a firearm, is unconstitutionally vague. Bramer argues that § 922(g)(3) is facially2 unconstitutional, because the terms “unlawful user” of a controlled substance and “addicted to” a controlled substance are vague. Though we are inclined to think that this argument could be meritorious under the right factual circumstances, it fails here. Bramer’s argument rests in large part on Johnson v. United States, 135 S. Ct. 2551 (2015), which applied a more expansive vagueness analysis than prior case law might have suggested. Before Johnson, we required defendants challenging the facial validity of a criminal statute to establish that “‘no set of circumstances exist[ed] under which the [statute] would be valid.’” United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Johnson, however, clarified that a vague criminal statute is not constitutional “merely because there is some conduct that falls within the provision’s grasp.” Johnson, 135 S. Ct. at 2561. Though Bramer need not prove that § 922(g)(3) is vague in all its applications, our case law still requires him to show that the statute is vague as applied to his particular conduct. United States v. Cook, 782 F.3d 983, 987 (8th Cir.), cert. denied, 136 S. Ct. 262 (2015) (“‘a [defendant] who engages in some conduct that is clearly prohibited cannot complain of the vagueness of the law as applied to the conduct of others’” (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 18–19 (2010))). 1 The Honorable Charles B. Kornmann, United States District Judge for the District of South Dakota. 2 The parties agree that Bramer’s appeal waiver in this case precludes all but a facial constitutional challenge. United States v. Seay, 620 F.3d 919, 922 (8th Cir. 2010). -2- Here, Bramer admitted in his written plea agreement to being an unlawful user of marijuana while in knowing possession of at least three firearms. We therefore have no basis in the record to conclude that the term “unlawful user” of a controlled substance was unconstitutionally vague as applied to him. United States v. Huckaby, 698 F.2d 915, 920 (8th Cir. 1982) (“Generally, constitutional challenges not raised before the trial court are not cognizable on appeal unless they constitute plain error.”). Though it is plausible that the terms “unlawful user” of a controlled substance and “addicted to” a controlled substance could be unconstitutionally vague under some circumstances, Bramer does not argue, and has not shown, that either term is vague as applied to his particular conduct of possessing firearms while regularly using marijuana. Under our case law, his facial challenge to the constitutionality of § 922(g)(3) cannot succeed without such a showing. Cook, 782 F.3d at 988–90 (finding that the statute in question gave the defendant “adequate notice that his conduct was criminal”). Accordingly, we affirm Bramer’s conviction. ______________________________ -3-

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4023504/

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ MICH & MICH TGR, INC., A CORPORATION OF DELAWARE, Plaintiff-Appellant v. BRAZABRA CORPORATION, A CORPORATION OF MASSACHUSETTS, Defendant-Appellee ______________________ 2016-1057 ______________________ Appeal from the United States District Court for the Eastern District of New York in No. 2:14-cv-05758-KAM- AKT, Judge Kiyo A. Matsumoto. ______________________ Decided: August 11, 2016 ______________________ GERARD F. DUNNE, Law Office of Gerard F. Dunne, P.C., New York, NY, argued for plaintiff-appellant. MILTON SPRINGUT, Springut Law PC, New York, NY, argued for defendant-appellee. ______________________ Before LOURIE, DYK, and STOLL, Circuit Judges. 2 MICH & MICH TGR, INC. v. BRAZABRA CORPORATION STOLL, Circuit Judge. Mich & Mich TGR, Inc. appeals the United States District Court for the Eastern District of New York’s grant of summary judgment finding that Brazabra Corp.’s accused bra strap retainer does not infringe the asserted claims of U.S. Patent No. RE 43,766. Mich & Mich TGR, Inc. v. Brazabra Corp. (Summary Judgment Order), 128 F. Supp. 3d 621 (E.D.N.Y. 2015). For the reasons below, we affirm. BACKGROUND The ’766 patent is directed to a bra strap retainer to prevent straps from slipping off of shoulders, and methods of using the same. The specification explains that “[t]he inventive device includes a retaining member having an elongate main portion and opposite end portions which are adapted to keep straps of a bra on a user’s back in proximate relationship to one another.” ’766 patent col. 1 ll. 36–40. An embodiment of the claimed bra strap re- tainer, with elongate main portion 11 and end portions 12 and 13, is depicted in Figure 2 below: MICH & MICH TGR, INC. v. BRAZABRA CORPORATION 3 ’766 patent Fig. 2. Claim 12, the only claim at issue in this appeal, recites: 12. A method of preventing the slippage of bra straps off of the shoulders of a person wearing a bra, comprising: providing a bra strap retainer comprising at least a pair of strap-retaining members positioned at opposite ends of the retainer, respectively, and an elongated member extending between the strap-retaining members; positioning the bra strap retainer in the back region of the person, between the straps of a bra being worn by the person; placing a first bra strap into a retained posi- tion by placing the strap in a first pair of slots lo- cated between the strap-retaining members and the elongated member; and placing a second bra strap into a retained po- sition by placing the strap in a second pair of slots located between the strap-retaining members and the elongated member; wherein the bra strap retainer brings the first and second straps in close proximity with each other in a location on the person’s back, thereby preventing the straps from slipping off the per- son’s shoulder. ’766 patent col. 6 ll. 37–56 (emphasis added). Mich & Mich brought a patent infringement suit against Brazabra, alleging that Brazabra’s bra strap retainer infringes the ’766 patent. Brazabra’s accused product is depicted below: 4 MICH & MICH TGR, INC. v. BRAZABRA CORPORATION Summary Judgment Order, 128 F. Supp. 3d at 636. Mich & Mich asserted that the segments labeled “A1” to “A4” in the accused product together met the “elongated member” claim limitation. After construing “elongated member” as “a main structure that is longer than it is wide, and that extends continuously across the opposite ends of the apparatus without a substantial break or gap,” the district court granted summary judgment of noninfringement with respect to the asserted claims of the ’766 patent. Id. at 645, 657, 661. Mich & Mich appeals, disputing the district court’s construction of “elongated member” and asserting that the district court erred in granting summary judgment of noninfringement of claim 12 of the ’766 patent. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). MICH & MICH TGR, INC. v. BRAZABRA CORPORATION 5 DISCUSSION “We review de novo the district court’s grant of sum- mary judgment of noninfringement.” PC Connector Sols. LLC v. SmartDisk Corp., 406 F.3d 1359, 1362 (Fed. Cir. 2005). Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56. “Evaluation of summary judgment of noninfringement is a two-part inquiry: construing the claims and compar- ing the properly construed claims to the accused product.” Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d 1334, 1339 (Fed. Cir. 2016). “The ultimate construction of the claim is a legal question and, therefore, is reviewed de novo.” Info-Hold, Inc. v. Applied Media Techs. Corp., 783 F.3d 1262, 1265 (Fed. Cir. 2015). While subsidiary factu- al findings regarding extrinsic evidence are reviewed for clear error, we review a claim construction based solely upon intrinsic evidence de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015). Because the district court considered only intrinsic evidence in con- struing the disputed claim term here, our review is de novo. “Infringement, whether literal or under the doctrine of equivalents, is a question of fact. As such, it is amenable to summary judgment when no reasonable factfinder could find that the accused product contains every claim limitation or its equivalent.” Akzo, 811 F.3d at 1339 (internal citation omitted). I. Claim Construction The district court construed the claim 12 limitation “elongated member” as “a main structure that is longer than it is wide, and that extends continuously across the opposite ends of the apparatus without a substantial break or gap.” Summary Judgment Order, 128 F. Supp. 3d at 639. Mich & Mich does not dispute that the “elon- 6 MICH & MICH TGR, INC. v. BRAZABRA CORPORATION gated member” must be longer than it is wide, but argues that the district court improperly imported requirements that the “elongated member” be the “main structure” of the apparatus and “extend[] continuously across the opposite ends of the apparatus.” We disagree and adopt the district court’s construction. The term “elongated member” does not appear in the specification, but was added to claim 12 during prosecu- tion of the reissue application to overcome a written description rejection and an indefiniteness rejection. In adding this claim term, the patentee stated that the original specification described the “elongated member.” As the specification refers to only an “elongate main portion,” depicted as segment 11 in Figures 2–4 of the ’766 patent, the district court properly concluded that the ’766 patent uses the terms “elongate main portion” and “elongated member” interchangeably. Moreover, in briefing to the district court, Mich & Mich described the “elongated member” as “a main central portion of the invention that is elongated.” Joint Appendix (“J.A.”) 372 (emphasis added). As such, we agree with the district court’s inclusion of “main structure” in its construction of “elongated member.” Mich & Mich next argues that the “elongated mem- ber” need not extend continuously across the apparatus, asserting that the district court’s construction imports limitations from dependent claims 13 and 15 into inde- pendent claim 12. To determine whether the “elongated member” must be continuous, we first examine the claims of the ’766 patent, because “the claims themselves provide substantial guidance as to the meaning of particular claim terms.” Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc). The term “elongated member” first appears in independent claim 12, which describes the “elongated member” as “extending between the strap- retaining members” and requires the strap-retaining members be “positioned at opposite ends of the retainer.” MICH & MICH TGR, INC. v. BRAZABRA CORPORATION 7 ’766 patent col. 6 ll. 40–42. In order to extend between the strap-retaining members, located at opposite ends of the retainer, the elongated member must be a continuous structure between the strap-retaining members. Mich & Mich points to nothing in the specification or prosecution history that suggests the “elongated member” can have a split or break. Instead, the specification only depicts the “elongated member” as a continuous structure, see ’766 patent, Figures 2–4, and provides no description to the contrary. The doctrine of claim differentiation does not dictate a different result here. Claim differentiation “only creates a presumption that each claim in a patent has a different scope; it is not a ‘hard and fast’ rule of construction.” Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1376 (Fed. Cir. 2001) (citing Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998)). “[T]he doctrine of claim differentiation cannot broaden claims beyond their correct scope, deter- mined in light of the specification and the prosecution history and any relevant extrinsic evidence.” Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1480 (Fed. Cir. 1998). As explained above, the language of claim 12 dictates that the “elongated member” extend continuously, and the additional limitations in claims 13 and 15 cannot broaden the scope of the “elongated mem- ber.” We therefore adopt the district court’s construction of “elongated member” as “a main structure that is longer than it is wide, and that extends continuously across the opposite ends of the apparatus without a substantial break or gap.” II. Infringement Mich & Mich concedes that if the “elongated member” must be continuous, Brazabra’s bra strap retainer does not literally infringe claim 12. See Appellant’s Reply Br. 3. Thus, because we adopt the district court’s con- 8 MICH & MICH TGR, INC. v. BRAZABRA CORPORATION struction that the “elongated member” extends continu- ously across the opposite ends of the apparatus, we affirm the district court’s grant of summary judgment finding no literal infringement of claim 12. Mich & Mich argues, however, that claim 12 is none- theless infringed under the doctrine of equivalents. Brazabra counters that Mich & Mich waived this argu- ment because it did not raise infringement of claim 12 under the doctrine of equivalents before the district court. We agree with Brazabra and find that Mich & Mich cannot assert infringement of claim 12 under the doctrine of equivalents on appeal. “If a litigant seeks to show error in a trial court’s overlooking an argument, it must first present that argument to the trial court. In short, this court does not ‘review’ that which was not presented to the district court.” Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). Before the district court, in its claim construction submission, Mich & Mich asserted only that “the accused Brazabra Clip infring[es] the asserted claims 1, 3, 5, 6, and 8 under the ‘doctrine of equivalents.’” J.A. 272. And in Mich & Mich’s opposition to Brazabra’s motion for summary judgment, it reiterated that “[t]he accused Brazabra Clip infringes the asserted claims 1, 3, 5, 6, and 8 under the ‘doctrine of equivalents.’” J.A. 375. Mich & Mich does not point us to any place in the record where it asserted before the district court infringement of claim 12 under the doctrine of equiva- lents. As such, we find that Mich & Mich waived this issue and is precluded from raising it on appeal. CONCLUSION Accordingly, because the district court correctly con- strued the claim limitation “elongated member” and because Mich & Mich waived any argument that claim 12 is infringed under the doctrine of equivalents, we affirm the district court’s grant of summary judgment of nonin- MICH & MICH TGR, INC. v. BRAZABRA CORPORATION 9 fringement with respect to claim 12. We decline to award fees under 35 U.S.C. § 285 as requested by Brazabra. AFFIRMED

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4142825/

‘ifs;omu~~ GENERAL TEXAS Mr. L. L. Roberts County Auditor Hutchinson Cotintg Stinnett, Texas Dear Sir: Opinion No. O-3537’ Re: Authority of county to expend moneys derived from the Lateral.Road AC-~ count provided by H. B. 688; in the repairing and improving of bridges constituting a part of the Lateral Road System of a county. In reply to your letter requesting our opinion on the following question: "May Hutchinson County le ally expend moneys derived through said H. B. 688 now held in its Lateral Road Fund for (a) remo;ing the old floor of a bridge, purchasing materials for a new floor, and constructing a new floor in this bridpe; and (b) for materials and labor ir making repairs to such bridge in addition to a new floor?" we advise as follows: In the early case of Aransas County v. Coleman-Fulton Pasture Company, 191 9. W. 553, it was held that the Constitu- tlon, Article 3. Section 52, as amended in 1903, authorizing counties to issue bonds for road construction purposes, em- powered such counties to build necessary bridges as a part of such road, and it has become settled law that bridges are an essential part of any road. Therefore, it is our opinion that the funds allocated to the county through the Lateral Road Ac- count of the Board of County and District Road Indebtedness are available for the purpose enumerated in your question. Following the same line of reasoning, we think the county would be fully authorized to use such moneys fnr the purpose of acquiring right-of-wag to roads formIng a part of the County Lateral Road System. Trusting that the foregoing satisfactorily answers your inquiry, we are Mr. L. L. Roberts, page 2 o-3537 Very truly yours ATTORNM GENERAL OF TEXAS By s/Clarence E. Crowe Clarence E. Crowe Assistant CEC-S-WC APPROVX3 JUNE 6, 1941 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion Committee By s/BWB Chairmen

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4125057/

KEN PAXTON ATTORNEY GENERAL OF TEXAS March 9, 2015 The Honorable R. Lowell Thompson Opinion No. KP-0007 Criminal District Attorney Navarro County Courthouse Re: Whether a county commissioners court 300 West 3rd Avenue, Suite 203 must compensate a justice of the peace who Corsicana, Texas 75110 retires prior to the end of his term (RQ-1219-GA) Dear Mr. Thompson: You ask several questions about whether a county commissioners court must pay a salary and certain expenses to a justice of the peace who retires before the end of his or her term. 1 You tell us that a justice of the peace announced his retirement, effective July 1, 2014, and has since declined to discharge his duties as justice of the peace. See Request Letter at 1. You indicate that the commissioners court accepted his retirement and has "declined to compel [the justice] to 'hold over"' under article XVI, section 17 of the Texas Constitution. See id.; TEX. CONST. art. XVI, § 17. You note that the commissioners court also pays for his cell phone, health insurance, and a monthly vehicle allowance. See Request Letter at 2. Under these circumstances you ask whether the justice is entitled to be paid his salary and these other expenses. See id. at 1. You also question whether the commissioners court has authority under article XVI, section 10 of the Texas Constitution to make a deduction from his salary because he is no longer performing his justice of the peace duties. See id. at 3--4; TEX. CONST. art. XVI,§ 10 (entitled "Deductions from Salary for Neglect of Duty"). We begin with article XVI, section 17, of the Texas Constitution, which is a mandatory provision requiring that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. The purpose of this holdover provision is "to prevent vacancies in office and a consequent cessation of the functions of government." Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322, 326-27 (Tex. Civ. App.-Amarillo 1938, no writ); see also Tex. Att'y Gen. Op. No. M-659 (1970) 1 See Letter from Honorable R. Lowell Thompson, Navarro Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 4 (Sept. 3, 2014), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). You do not tell us in your request letter whether the commissioners court appointed a replacement. See Request Letter at 1-2. However, a review of the commissioners court's meeting minutes reveals that a replacement was appointed on July 14, 2014. Navarro Cnty. Comm'rs Ct. Meeting Minutes at 2 (Jul. 14, 2014), http://www.co.navarro.tx.us/. The Honorable R. Lowell Thompson - Page 2 (KP-0007) at 2-3 (noting that resignation of an officer is not deemed fully effective until the appointment and qualification of his or her successor). A holdover officer is a "de jure" officer with all the authority to act in his official capacity, as well as to receive compensation. See Tex. Att'y Gen. Op. No. GA-0550 (2007) at 4; see also Tex. Att'y Gen. Op. No. JM-423 (1986) at 3 (defining "de jure" officer as one with a legal right to the office). In the situation you describe, despite his announced retirement or any contrary intention of the commissioners court, the Texas Constitution imposes an obligation on the justice of the peace to continue to perform the duties that are prescribed by law until his successor is appointed and qualified. Cf Gambill v. City ofDenton, 215 S.W.2d 389, 391 (Tex. Civ. App.-Fort Worth 1948, writ dism'd) (declining to hold that an officer's successor became qualified only by virtue of an election such that holdover officer's salary continued until such election). Certainly, there are court cases recognizing that the salary of a public officer is "an incident of the office" that does not depend on the performance by the officer of official service. See Beard v. City of Decatur, 64 Tex. 7, 11, 1885 WL 7110, at *3 (1885) ("[T]he salary or emolument annexed to a public office is incident to the title to the office, and not to its occupation and exercise."); see also Broom v. Tyler Cnty. Comm 'rs Ct., 560 S.W.2d 435, 437 (Tex. Civ. App.- Beaumont 1977, no writ), City ofHouston v. Estes, 79 S.W. 848, 851 (Tex. Civ. App.-Galveston 1904, writ ref d), Cawthon v. City of Houston, 71 S.W. 329, 330 (Tex. Civ. App.-Galveston 1902, writ ref d). These cases, however, involve a public officer willing to discharge the duties imposed on the officer by law. See Estes, 79 S.W. at 850 (acknowledging the officer established at trial his readiness to perform his duty); Cawthon, 71 S.W. at 329 (noting the officer's willingness to serve); Beard, 64 Tex. at 9, 1885 WL 7110, at *2 (noting that the city treasurer was willing to perform his duty but was prevented from doing so by actions of the city council). On that basis, these cases are distinguishable from a situation, such as you describe, in which an officer refuses to perform any of his official duties in disregard of his constitutional duty. A court would probably not consider this line of cases to be dispositive to your issue. Rather, a court would likely rely on the constitutional limitation on the use of public funds found in Texas Constitution, article III, section 52(a). Article III, section 52(a) prohibits a political subdivision's gratuitous grant of public money or a thing of value in aid of, or to any individual. TEX. CONST. art. III, § 52(a); see Tex. Mun. League Intergov 'ti Risk Pool v. Tex. Workers' Comp. Comm 'n, 74 S.W.3d 377, 383 (Tex. 2002) (stating that article III, section 52(a) prohibits the gratuitous expenditure of public funds). The Texas Supreme Court has enumerated a three-part test by which to determine whether a grant of money or thing of value is prohibited as gratuitous. Id. at 384 (stating that an entity making a public expenditure must: (1) ensure the expenditure's "predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain public control over the funds to ensure that the public purpose is accomplished and to protect the public's investment; and (3) ensure that the political subdivision receives a return benefit"). Relevant here, the three-part test requires that the expenditure must accomplish a public purpose and be reciprocated with return consideration or a clear public benefit. See id. The determination of whether a particular expenditure satisfies the three-part test is for the political subdivision to make in the first instance, subject to judicial review for abuse of discretion. Tex. Att'y Gen. Op. Nos. GA-0843 (2011) at 2, GA-0721 (2009) at 3, GA-0472 (2006) at 3; see also Comm 'rs Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 80 (Tex. 1997) (recognizing district court's supervisory The Honorable R. Lowell Thompson - Page 3 (KP-0007) control over a commissioners court that abuses its discretion). Payment to this justice of the peace for salary, expenses, allowances, and benefits beyond the date the officer refused to perform his official duties would be gratuitous absent findings by the commissioners court that the expenditure satisfies the three-part standard under article III, section 52(a). Because the initial article III, section 52(a) determination belongs to the commissioners court, we cannot conclude as a matter of law that the justice of the peace in these circumstances is entitled to the salary, expenses, allowances, and other benefits provided by the county to its officers. See Tex. Att'y Gen. Op. No. GA-0843 (2011) at 2 (noting that such determination depends on the facts of any particular transaction). Accordingly, we do not address your remaining questions regarding article XVI, section 10 of the Texas Constitution. See generally Miller v. James, 366 S.W.2d 118, 121 (Tex. Civ. App.-Austin 1963, no writ) (concluding that absent enabling legislation, article XVI, section 10 provides "no authority for any such deductions to be made"). The Honorable R. Lowell Thompson - Page 4 (KP-0007) SUMMARY Article III, section 52(a) of the Texas Constitution prohibits the gratuitous payment of public funds for a private purpose. The determination of whether a public expenditure to a justice of the peace who refuses to perform his duties as a holdover officer upon his resignation is gratuitous belongs to the commissioners court in the first instance, subject to judicial review. Thus, we cannot conclude as a matter of law that the officer in these circumstances is entitled to the salary, expenses, allowances, and other benefits provided by the county. 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/4125059/

February 27, 2015 Mr. Michael Williams Opinion No. KP-0005 Commissioner of Education Texas Education Agency Re: Construction of section 45.0532 ofthe Education 1701 North Congress Avenue Code regarding the limitation on the guarantee Austin, Texas 78701-1494 of charter district bonds (RQ-1223-GA) Dear Commissioner Williams: You ask whether section 45.0532 of the Texas Education Code should be construed as a limit on each separate issuance of charter district bond guarantees or as a maximum limit on the cumulative amount of guaranteed charter district bonds. 1 Article VII, section 5(d) of the Texas Constitution authorizes the Legislature to provide for the use of the state "permanent school fund to guarantee bonds issued by school districts or by the state for the purpose of making loans to or purchasing the bonds of school districts for the purpose of acquisition, construction, or improvement of instructional facilities" and furnishings. TEX. CONST. art. VII, § 5(d). To implement this constitutional provision, the Legislature created the Bond Guarantee Program ("BGP") in chapter 45, subchapter C of the Education Code. See TEX. EDUC. CODE ANN. §§ 45.051-.063 (West 2012 & Supp. 2014). The BGP is administered by the commissioner of education and the Texas Education Agency ("TEA") pursuant to rules promulgated by the State Board of Education ("SBOE"). Id. § 45.063 (West 2012); 19 TEX. ADMIN. CODE §§ 33.65(a), .67(b) (2014). Section 45.053 of the Texas Education Code limits the "total amount of outstanding guaranteed bonds" that the commissioner of education may approve, establishing a maximum of two-and-a-half to as much as five times "the cost value of the permanent school fund." TEX. EDUC. CODE ANN.§ 45.053(a), (d) (West 2012). The state auditor is required to certify annually whether the amount of bonds guaranteed by the BGP is within this limit. Id. § 45.053(b). In 2011, the BOP-previously available only to school district bonds-was extended to bonds issued by open enrollment charter schools that qualify as a charter district. Act of June 28, 2011, 82nd Leg., 1st C.S., ch. 4, §§ 59.01-.21, 2011 Tex. Gen. Laws 5254, 5319-23 (the "Act"). 1 See Letter from Mr. Michael Williams, Comm'r of Educ., Tex. Educ. Agency, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Sept. 16, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). Mr. Michael Williams - Page 2 (KP-0005) Section 45.0532 of the Texas Education Code contains a further limitation on guarantees available for charter district bonds: In addition to the general limitation under Section 45.053, the commissioner may not approve charter district bonds for guarantee under this subchapter in a total amount that exceeds the percentage of the total available capacity of the guaranteed bond program that is equal to the percentage of the number of students enrolled in open- enrollment charter schools in this state compared to the total number of students enrolled in all public schools in this state, as determined by the commissioner. TEX. EDUC. CODE ANN. § 45.0532(a) (West Supp. 2014) (emphasis added). The statute further explains that for purposes of subsection (a), "the total available capacity of the guaranteed bond program is the limit established by the board under Sections 45.053(d) ... minus the total amount of outstanding guaranteed bonds." Id. § 45.0532(b). You inform us that pursuant to SBOE rules, the TEA receives BGP applications and recalculates the BGP capacity monthly. Request Letter at 2; 19 TEX. ADMIN. CODE§§ 33.65(a), (e)(l), (f)(2)(A); .67 (2014). You state that two different methodologies have been proposed to ascertain the limit on charter district bond guarantees in section 45.0532, depending on how the phrase "in a total amount" in that section is construed. Request Letter at 2-4. The first method assumes that section 45.0532 is a limitation on the total amount of charter district bonds that the commissioner may approve each month, not a limitation on the total amount of charter district bonds that the commissioner may approve for guarantee in the cumulative amount. Id. at 3. Under the first method, each month the total available capacity for the BGP would be determined by deducting all outstanding guaranteed bonds, whether school district bonds or charter district bonds. Id. Then, the percentage based on the number of open-enrollment charter school students compared to all public school students ("charter student ratio") would be applied to the total available capacity to determine the total amount of charter district bonds the commissioner may approve for guarantee that month. Id. Using this methodology, charter district bond capacity is calculated for the month without regard to outstanding charter district bond guarantees that were approved in prior months. Id. at 3-4. You state that because this method does not establish a cumulative limit for the total amount of charter district bonds that may be guaranteed, over time the cumulative BGP guarantees allocated to charter district bonds could exceed the charter student ratio limitation in section 45.0532. Id. at 3. You state that the second methodology construes section 45.0532 as establishing the maximum limit of BGP capacity available for charter district guarantees. Id. This method begins by subtracting all outstanding bonds to determine the total available capacity for the BGP and applies the charter student ratio, but also considers outstanding charter district guarantees to determine the total amount of charter district bonds that may be guaranteed under section 45.0532. Id. at 3-4. You ask which methodology is allowable under section 45.0532, specifically whether section 45.0532 should be construed as "a limit on each separate issuance of charter district bond guarantees or whether it represents a maximum limit on the cumulative amount of guaranteed charter district bonds." Id. at 1, 5. Mr. Michael Williams - Page 3 (KP-0005) Courts construe statutes according to the plain language read in the context of the statutory scheme. See Tex. Workers' Comp. Ins. Fundv. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000). In subsection 45.0532(a), the phrase "in a total amount" refers to "charter district bonds." See TEX. EDUC. CODE ANN.§ 45.0532(a) (West Supp. 2014). The statute establishes a maximum by broadly prohibiting the commissioner from approving charter district bonds for guarantee in excess of the charter districts' share of the BGP's total available capacity based on the charter student ratio. See id § 45 .0532(a). The statute does not specify how often the commissioner must issue approvals and leaves the methodology for complying with the statute to be determined according to SBOE rules. See id. § 45.0532(b); id. §§ 45.053(d), .0531, .063 (West 2012); 19 TEX. ADMIN. CODE§§ 33.65, .67 (2014). Because the plain language ofsection45.0532 broadly limits the "total amount" of charter district bond guarantees that may be approved, not the amount of bond guarantees that may be approved each month, a court would likely construe section 45.0532 as an ongoing limitation on the cumulative amount of charter district bonds that the commissioner may approve for guarantee. 2 A methodology that prevents the commissioner from approving charter district bonds in an amount that would cause the cumulative amount of guaranteed charter district bonds to exceed the charter student ratio would be consistent with the legislative text contained in section 45.0532. Conversely, a methodology that allows the cumulative amount of charter district bonds to exceed the charter student ratio would conflict with the legislative text. There are any number of good policy reasons for the Legislature to treat charter schools the same as other public schools with regard to the bond guarantees. But this matter is one for the Legislature to resolve. 2A construction of section 45.0532 as a limitation on the cumulative amount of charter district bonds that may be approved would be consistent with the legislative history of the statute. See Senate Research Center, Bill Analysis, Tex. S.B. 597, 82nd Leg., R.S . (2011) at 1 (as filed) (stating that "[t]his bill provides that the amount of the guarantee for eligible charters corresponds to the percent of public students enrolled in charters compared to the total number of public school students"); Fiscal Note, Tex. S. B. 597, 82nd Leg., R.S. (2011) at 1 (stating that "[t]he bill would limit the total amount of charter school bonds to be guaranteed to the portion of total available capacity in the PSF school bond guarantee program that is equal to the proportion of charter school enrollment to total enrollment"). Mr. Michael Williams - Page 4 (KP-0005) SUMMARY A court would likely conclude that section 45.0532 of the Texas Education Code establishes a maximum limit on the cumulative amount of charter district bonds that may be guaranteed under article VII, section 5(d) of the Texas 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 WILLIAM A. HILL Assistant Attorney General, Opinion Committee

01-03-2023

02-10-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142795/

.f -’ 682 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN 683 ~$3.3.;; t,bs la inaued br 6 oouaty oQplfa-- wars~nt oouxt, mayor or reaoxder of ooaad.aaionera~ an inoLporat*b tam. IB avant of the lattor the ~rorlaioas of Art. SW, 0, G. P. 8hapM be ooelglia$ with. “irhen an arrost in made out oi this oouaty in a iolony ease it la your butr to brfn the oiiaadaz before a rim&atnta of tEl4 oopoty. 8ha ofieodos le not entitled to II*~ bail letha Bounty of h$a arreat In auoh oane. *In oaae of b mlaaemaaaor prQaeQutlon pelatng lh tblr oounty you CT* a&via06 that you ham 8 right to arroat tke oifr@&r'trr. ar aoilaty of tbia State unleaa tha wrrnnt iq'5.arW by l u o vnty 001e mlaa1c~0r, oommiaalonarr~ ocnirt,.myoz or reorder 0r an lnoorporatad tawn. Ii! ovaat'of bbo lattor ,4&o pwavlaionn ot Art. 'Bil4,'0. '0. P. ahoul4 be eospU.4 oith. "when UI.wxoat la ma48 aut of this bounty in's ml0demeanor oaae it 14 y&ax auty to take Oh0 ~ffoniler b&ore a auglatrPt~ of th3 oaltnoy wEam you make the arrsat. If the o$roll&W *in rka bau no IpteuX& then br reIaaard. +4 ia~thl8 aLtuat#m you wplll be attitle to your ml&age Cm g&36 ta the pfaoo o? arr~at, for ior arroao and FCa for aal~ae, but you attld not be entltlwl to tot&r 18U8tig0 ior the r8tW?B trig. “If the ofimder should not be obla to make bail as outlined above you ahauld return him to the jail 02 thiR oounty .~a& in wlpiah event you rw\ild-ba e&itlsd to miit?+&b both 6iri43 ad OS4&8& idi add%- ti0n t0 y0a 0th43r r444. *You are fuxthor odviao4 timt It ia not neoosaary that the asrest be made by u1 cifioer of tba OOUB~)T where the offender ia locratoi. UnQer the appliarble provisiona of Art. l@S, C. C. P. you hare authority tc maks an arrost aayubera in Taxam.” Artiole $56, Vernoa*s Annotated code of Crixubai PXUOsdUm, prcvldsar 8 61 Eon. Ii. D. Strillger, page 8 w’Ttr4 iollowing *re tpoaoe offloerar* the mberlff and his deputier, con&able, Me merabal or polioemen of an inoorporated tuwn or city, the olflaera, non-aoumlaaioned off loare and privetem of the Stats ranqar force, and any private person epeoially appointed to execute orimlnel pm0eiaa.” ktiole 223, Vernon’s Atmotateb Code of Criminal Prooe- Uure, reade a4 followst “A warrant oi’ erreat, iraued by any oounty or Cletriot clerk, or by any IPaglatrate (eroept aounty 8oadaoioaare or oame&arionero oourtn, mayoro or reoorders of en inaorporeteU city or tom), ohall lzten6 to any part of th* State; and any peace 0friO~r to whom said uamat ia dlreote4, or Into whose baud8 the meme hcia bean trattgierra& ahall be autharlzed to exeoute tho mamain any oounty in this State .” It ia oloar tbereforo, that a aherirf being & p~ee oiiloor 68 that term i4 ~ofin.4 In lrrtlole ,W, supra, may exaaute a warrant of arreat in any aounty in Tex4m. It rae ho14 la the ctaeeor Henaon va. State, 49 L% W. (aa) 463, that &tiole 88JI aupra, doe6 not extend the rtgbt oi I peace otfiaor to make an ezraat outaide of hia couab~ la tho ab@otb@aof a WaFLIat, aid that an arrest made without a UaPrant i0 WXi6. Artlola 884, Vernon’& Annotated Code of Criminal Pmoeduro, providear 'When a warrant or arrest ie Ieaued by e.tw oounty ooma&saioner or oommlaalormra court, mayor or reoorber of an iaaorpo~te4 ol* or tom, 3.t 00B not be sreaufed In another OoUntY thui the ana ia which it feeuee, exae~tt “1. It be 4nUorecPd by s fudga 0r a oourt of moor&, in whioh oaae It say be etaouted anywhere In the state, or *2. Ii lt be indoraed by my meglistrate in the oounty in *ioh ‘the aroused %a rotllve, it aray bo executed In suoh oounty, The 1nUorwnmt my bet 3011. 3. 3, Btrlwar, pa66 4 'ht this warrant be lX6OUt8d $D the cOUBtf Of . . . . . . . ...*... ’ Or, If the, 16 rade by flldOr686l8llt . jUd&;s Of 6 00th iEidOr68i665t Or r*OOrd, th8n th8 nVry be: 'Let thi6 WafFaZIt be 6S8OUt8d $5 ~6Iy oounty of the T~:tate Of T6Xeer* hy otb+r words of th6 6am6 rrje&td.ng Will be EUfficiCnt. %%8 indOrS8- ltlant atmll b8 dated, and slgn8d otfioially bJf the sqistrate making it." Article 1066, Veraon*~ Annotated Cob6 02 Criminal Prooe- dura, read6 in part a6 tolLow6t 'The follo*i56 f68S 6heil be tilOWOd the sbsriit, or other pea00 0rria6r 36rtQl'Bi56 tb6 86m# BUTiO@E $tl ld6hOmOUtOP O&686, t0 be hU8d against the defendant on aonrletlon; I). . l “1 2. Par moh miLe he mey be eoepallt4 te r tnV8l ill 8XOOUth(l O?hiU6l m0O668 and I-6d.a or attaoting witnoar, 68f.n aad ene-Bali 085t6. Rar trPv@llng in th8 8WVioe Or prOQMf8 not Oth8PWiOO provided ror, tb8 6um or 68t65 and one-half OMtB ror 8aCh tile gofELg mad rsturniag. Xi ,two or mere pereons are maticaed In the a86m writ, or bwo 0s mose Wit6 fn the amI* 0960, he shall cbargo 0nU ror the 616tanoe *oWally aad 58cP866arl3.y t*a7*104 In ths aamc.n Article SW, Vermm*8 Aa&atwl Cob8 or Crlmlnal Br00edur6, provlde6r Wne arreeted rof a lolrraamsaaor @hall be t6kui before a magl6bYdO Qf the QOUtLt~wb6lW th6 arS68t take6 pl.aad who 6hal.L take ball 654 tran6ntt lmedlately tbs bo#d a0 token '%a the court bari jurladiction of the of~8n68.* Article i334, Wernan~n Annotated Code af Crtminal hOO6dur8, prorides: mOnc arreeted in one oo~u5t:J ror felony OOS- mitted in mother ahalL in all 06688 be t6k6a before 6OEIBMf+Strat@ Of ttl6 OOUIktr VdlSr8 it WO8 alleged the 0rr~n89 wa8 commltt4(1." 686 3011. 3. D. Ytrltuer, pa60 8 After Cardfilly oonslderl~ td%e above m?ntione& PtatUta8 in Oorxa8atio& with the 8~~t~n~8 made In your l8tter Opinion quoted above, we a&roe wit& 6.ll the cona~u6:onE 8t6ted thsn- In cFoapt tim Statement in the til%h paragraph relative to the mileag4 the ahsrifi would bs 8nhithd to r8oeiYc whn the party oharged with the ariEdOEi6a$AOrOffOKLSS is armsted in another oountp W3 taken before a 6mglstrate OS that county where km make6 ball. YOU atata that the 6h8riff WOUU not be entitled to mileage Sor the mturn trip. It i8 OUI' OQipiOa that uabr s8ctiOn 11 of Artiole lOb6, 6upra, tbe 6herifi n0ula be 8iltitbd to #he 8aIB8 msloag~ neoe88arlly an@ aotually traveled 011 hi8 return trip a8 he Would be in &Otm to the p la a 0 o r lrr88t. ITrimtfng thab the Coregoin( tuuy M8W8r8 your inquiry, W8 are t!!!!!? coMM BY GOull

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127345/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General _________________________ : OPINION : No. 85-107 : of : JULY 3, 1986 : JOHN K. VAN DE KAMP : Attorney General : : JACK R. WINKLER : Deputy Attorney General : : ________________________________________________________________________ THE HONORABLE PATRICK JOHNSTON, MEMBER OF THE CALIFORNIA ASSEMBLY, requests an opinion on the following questions: 1. What duties may be assigned to a level III reserve peace officer? 2. What degree of supervision is required over a level III reserve peace officer? 3. May a level I reserve peace officer supervise a level III reserve peace officer? 1 85-107 CONCLUSIONS 1. A level III reserve peace officer may: (a) Be assigned to perform search and rescue, personnel administration support, community public information services, communications technician services and scientific services without supervision; and (b) Be given other limited duty assignments which do not require use of general law enforcement powers in their routine performance and which may only be performed under the direct supervision of a peace officer possessing a regular POST basic certificate. General law enforcement powers include the investigation of crime including the interrogation of suspects and witnesses and search for physical evidence; peace officer arrests, searches and seizures; and the taking and maintaining of custody of persons arrested for or convicted of crime. 2. The degree of supervision required over a level III reserve peace officer is that required to provide reasonable assurance that the limited duty assigned will be successfully performed without harm to the reserve or others. 3. A level I reserve peace officer may supervise a level III reserve peace officer only if he or she possesses a regular basic certificate issued by the Commission on Peace Officer Standards and Training. ANALYSIS Penal Code section 830.6(a)(1) provides for the appointment of reserve peace officers as follows: "Whenever any qualified person is deputized or appointed by the proper authority as a reserve or auxiliary sheriff or city policeman, a deputy sheriff, a reserve peace officer of a regional park district, or a deputy of the Department of Fish and Game, and is assigned specific police functions by such authority, such person is a peace officer; provided, such person qualifies as set forth in Section 832.6, and provided further, that the authority of such person as a peace officer shall extend only for the duration of such specific assignment." Since all three questions concern "level III" reserve peace officers, this analysis will focus on that category. The "level" of a reserve peace officer refers to the 2 85-107 subdivision of section 832.6(a)1 in which the three categories are described. Thus, a level I reserve peace officer is described in subdivision (1), a level II reserve peace officer in subdivision (2) and a level III in subdivision (3) of section 832.6(a). The first question submitted concerns the duties which may be assigned a level III reserve peace officer. The assignments which may be given reserve peace officers are governed by section 832.6(a) which reads: "(a) On or after January 1, 1981, every person deputized or appointed as described in subdivision (a) of Section 830.6 shall have the powers of a peace officer only when such person is: "(1) Deputized or appointed pursuant to paragraph (1) of subdivision (a) of Section 830.6 and is assigned to the prevention and detection of crime and the general enforcement of the laws of this state, whether or not working alone, and the person has completed the basic training prescribed by the Commission on Peace Officer Standards and Training. ". . . . . . . . . . . . . . . . . . . . . ." "(2) Assigned to the prevention and detection of crime and the general enforcement of the laws of this state while under the immediate supervision of a peace officer possessing a basic certificate issued by the Commission on Peace Officer Standards and Training, the person is engaged in a field training program approved by the Commission on Peace Officer Standards and Training, and the person has completed the course required by Section 832 and such other training prescribed by the commission; or "(3) Deployed and authorized only to carry out limited duties not requiring general law enforcement powers in their routine performance. Those persons shall be permitted to perform these duties only under the direct supervision of a peace officer possessing a basic certificate issued by the commission, and shall have completed the training required under Section 832 and any other training prescribed by the commission for those persons. Notwithstanding the provisions of this paragraph, a level III reserve officer may perform search and rescue, personnel administration support, community public information services, communications 1 Section references are to the Penal Code unless otherwise indicated. 3 85-107 technician services, and scientific services, which do not involve direct law enforcement without supervision." (As amended by ch. 761, Stats. 1984.) No judicial decisions have been found construing section 832.6. We must therefore interpret the section according to the applicable rules of statutory construction. The principle rules were summarized in Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, as follows: "We begin with the fundamental rule that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent the court turns first to the words themselves for the answer. We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose; a construction making some words surplusage is to be avoided. When used in a statute words must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear. Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole." (Citations and quotations omitted.) The courts consider the legislative history of the statute as well as the circumstances of its enactment in determining the intent of the Legislature. (People v. Black (1982) 32 Cal.3d 1, 5.) As originally enacted in chapter 987, Statutes of 1977, subdivision (3) of section 832.6(a) provided: "Deployed only in such limited functions as would not usually require general law enforcement powers and . . . [the training requirements]." The words "general law enforcement powers" have not been defined in the statute nor by the Commission on Peace Officer Standards and Training (POST). Nevertheless, we believe that in the context of section 832.6(a), they were intended to refer to those powers which would normally be exercised by level I and level II reserve peace officers assigned to "the prevention and detection of crime and the general enforcement of the laws of this state" as this phrase is used in subdivisions (1) and (2). The latter phrase was interpreted by POST in 1978 in the course of establishing the training requirements for the three levels of reserves. The phrase was said to refer "to a Level I or Level II reserve officer assigned to:  investigate crime, or 4 85-107  patrol a geographic area and  handle personally the full range of citizen requests for police services and  take enforcement action on the full range of law violations for which the reserve's department has law enforcement responsibilities." (POST Bulletin 78-13 dated August 9, 1978, announcing the adoption of reserve officer training requirements.) The substance of this definition was incorporated in section H-1 (revised July 15, 1982) of the POST Administrative Manual2 as follows: "2. Definitions. For purposes of clarifying Penal Code Section 832.6, and establishing uniformity in implementing and conducting the POST Reserve Officer Program, the following definitions apply: ". . . . . . . . . . . . . . . . . . . . . ." "h. 'Prevention and detection of crime and the general enforcement of laws "refers to the peace officer authority of a Level I or Level II reserve officer assigned to investigate crime, or patrol a geographic area and personally handle the full range of requests for police services, and take enforcement action on the full range of law violations for which the reserve's department has enforcement responsibility. . . ." The courts give great weight to the interpretation of a statute by the administrative agency empowered to promulgate regulations to advance its purposes unless the interpretation is clearly erroneous. (Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 8.) While we have found no legislative or administrative enumeration of the "general law enforcement powers" referred to in subdivision (3) of section 832.6(a), they refer to powers which are not routinely required in performing the limited duties which may be assigned level III reserves. This limitation is set in marked contrast to the general 2 The provisions of section H of the POST Administrative Manual have been adopted by reference in section 1007, title 11 of the California Administrative Code. 5 85-107 duties of "the prevention and detection of crime and the general enforcement of the laws" which may be assigned to level I and II reserves and which do routinely require the use of general law enforcement powers. Thus, the POST definition of such assignments provides a basis for determining what general law enforcement powers are routinely required in its performance. We believe those powers would include the investigation of crime including the interrogation of suspects and witnesses and search for physical evidence; peace officer arrests, searches and seizures; and the taking and maintaining of custody of persons arrested for or convicted of crime. The first sentence of subdivision (3) of section 832.6(a) as amended in 1984 contains the same limitation on assignment of level III reserves as the original 1977 version but in more explicit language. The words "not usually require" were replaced by "not requiring . . . in their routine performance." The "authority" as well as the deployment of level III reserves was limited by the 1984 amendment. However, the subject of the limitation was not changed, namely the use of "general law enforcement powers." Thus, the 1984 amendment made little change in the substantive limit the statute places on the unspecified limited duties which may be assigned to level III reserves. The second sentence of the 1984 version of subdivision (3) of section 832.6(a) carried forward the training requirements for level III reserves and added a new supervision requirement. This was the "direct supervision" of the unspecified limited duties to which level III reserves may be assigned under the first sentence of subdivision (1) of section 832.6(a). The nature of such direct supervision will be discussed later. The third sentence added to subdivision (3) of section 832.6(a) by the 1984 amendment created an exception to the supervision requirement by authorizing specified assignments for level III reserves "without supervision." The words "which do not involve direct law enforcement" in said third sentence are ambiguous. They could refer to those portions of the specified assignments which do not involve direct law enforcement or to a legislative determination that none of the assignments specified involve direct law enforcement. In our view, the context requires the latter meaning. Responding to the first question, we conclude that a level III reserve peace officer may: (a) be assigned to perform search and rescue, personnel administration support, community public information services, communications technicians services and scientific services without supervision; and 6 85-107 (b) be given other limited duty assignments which do not require general law enforcement powers in their routine performance if the performance of such duties is directly supervised as required. The request for this opinion asks more specifically whether level III reserves may, without supervision, be assigned to enforce criminal provisions of the Vehicle Code, Penal Code, harbor and boating laws or local ordinances by issuing citations or making arrests. The answer is no for two reasons. Since the enforcement duties described are not among those specified in the last sentence of subdivision (3) of section 832.6(a) to which a level III reserve may be assigned without supervision, any such assignment would require direct supervision as provided in the second sentence of the same subdivision. Further, the enforcement duties described routinely require the making of arrests in their performance and are therefore not a limited duty which may be assigned to a level III reserve under the first sentence of subdivision (3) of section 832.6(a). The request for this opinion also asks specifically whether level III reserves, when working without direct supervision, may "handle and/or transport" prisoners? Again, the answer is no for two reasons. Since such assignments are not among those specified which the statutes state may be performed without supervision, the statute requires direct supervision. The taking and maintenance of custody of a person arrested or convicted of a crime is a general law enforcement power which is routinely required in the transporting and other "handling" of prisoners. The request for this opinion also asks specifically whether level III reserve peace officers working without direct supervision have the authority "of arrest, search and seizure." The only assignments which may lawfully be given a level III reserve which may be performed without direct supervision are those specified in the statute, namely search and rescue, personnel administration support, community public information services, communications technicians services and scientific services which the Legislature has determined do not involve direct law enforcement. However, when working such specified assignments, a level III reserve peace officer "is a peace officer" (see § 830.6(a)(1)) and "shall have the powers of a peace officer" for the duration of the assignment (see first sentence of § 832.6(a), supra) even though they are not routinely required in the performance of such assignments. Should some unusual circumstances arise in the performance of such assignments which call for the exercise of a peace officer's powers of arrest, search and seizure, the level III reserve peace officer would then have the authority to exercise such powers. The second question presented asks what degree of supervision is required over a level III reserve peace officer? First, we must distinguish between those 7 85-107 assignments of level III reserves which do require supervision and those which do not. As previously noted, the last sentence of subdivision (3) of section 632.6(a) provides that a level III reserve may perform specified services "without supervision." This contrasts with the "direct supervision" required over other assignments of level III officers in the first and second sentences of that subdivision. Thus, the statute provides no special supervision requirements with respect to search and rescue, personnel administration support, community public information services, communications technicians services and scientific services assigned to level III reserves. This does not mean that level III reserves perform such assignments without any supervision. They are still subject to the orders and directions of their superiors in the chain of command who may provide for such supervision of such assignments as they deem appropriate. However, there is no statutory requirement for a particular kind of supervision of such assignments as there is with others. With respect to other assignments of level III reserves not specified in the last sentence of subdivision (3) of section 632.6(a), the second sentence of that subdivision requires that such duties may be performed only under the "direct supervision" of a peace officer possessing a basic POST certificate. Neither the Legislature nor POST has defined the term "direct supervision" as used in this statute. The term must be distinguished from the term "immediate supervision" used in subdivision (2) of section 632.6(a) in reference to level II reserves which POST has defined.3 In the context of section 832.6(a)(3), it is the limited duties assigned the level III reserve under the first sentence which must be performed under "direct supervision." We believe the Legislature imposed the supervision requirement to provide reasonable assurance that the level III reserve, with his or her limited training, will successfully perform the limited duties assigned. The form this supervision must take depends upon the nature of the limited duties assigned. The law places no limit on the kind of duties which may be assigned requiring only that they be limited, i.e., restricted to a narrow range of activity which is well defined as to what the level III reserve is to do and not do, and that such duties do not require the exercise of general law enforcement powers in their routine performance. Without attempting any exhaustive listing, we think such limited duties would include such assignments as issuing parking tickets, directing 3 POST Administrative Manual section H-1 (revised July 15, 1982) provides: "2.f. 'Immediate supervision' [in section 832.6(a)] means the reserve officer acts under the direction of a peace officer, possessing a basic certificate, who is routinely in the physical proximity of and available to the reserve officer; however, allowance is permitted for necessary temporary separations. (Applies only to Level II reserve officers.)" 8 85-107 traffic, transporting equipment, acting as court bailiff, crowd control and specified surveillance. Circumstances could preclude even such assignments to level III reserves, such as when information indicates that violence may reasonably be expected which would require the exercise of general law enforcement powers. The kind of supervision which would provide reasonable assurance of the successful performance of the limited duty assigned does not necessarily require the close proximity of the supervising officer. If the assigned duty is to remain at a phone booth and phone the supervising officer at headquarters when he sees someone enter or leave a particular building, an occasional phone call to see that the reserve is alert at his post would provide reasonable assurance that the duty will be successfully performed. Reviewing duplicate parking tickets would provide reasonable assurance of the performance of that duty. Spot checks of the courtroom would provide reasonable assurance of the performance of a bailiff's duties. Thus, the nature of the supervision may be as varied as the nature of the duties to be supervised. One generalization may be made as the result of the statutory requirement that the supervision be "direct." The adjective "direct" connotes that the supervision is to be characterized by a close logical, causal and consequential relationship and provided personally without the associative effort of anyone else. (See Webster's Third New International Dictionary.) Thus, the supervising officer may not delegate his supervising responsibilities to others. The greater the risk of harm to the reserve or to others the closer the supervision must be to reasonably assure that performance will be without injury and thus successful. When the risk of harm is great, the supervisor should be in a position to intervene where necessary to prevent the harm. We conclude that the degree of supervision required over a level III reserve peace officer is that required to provide reasonable assurance that the limited duty assigned will be successfully performed without harm to the reserve or others. The third question is whether a level I reserve peace officer may supervise a level III reserve peace officer? Section 832.6(a)(3) requires that the officer supervising a level III reserve peace officer possess "a basic certificate issued by the commission." POST Administrative Manual section H-1 (revised July 15, 1982) provides "2.g. 'Peace officer possessing a basic certificate' refers to a regular officer or a reserve officer who has been issued a regular POST Basic Certificate." We think the Legislature had this definition in mind when it amended section 832.6 in 1984. Thus, a level I reserve peace officer may act as a supervising officer to a level III reserve if he possesses a regular POST Basic Certificate. Section 832.6(a)(1) authorizes assignment of level I reserve peace officers if they have completed the requisite training. Possession of a regular POST Basic Certificate is not a requisite to an assignment as a level I reserve peace officer. POST Administrative Manual section H-4 (revised January 1, 1981) provides: 9 85-107 "2.b. Reserve Officer Certificate: This certificate is issued by POST to reserve officers who meet the requirements for Level I assignment and in addition have completed 200 hours of general law enforcement experience. The certificate is not required by statute nor necessary to exercise peace officer powers as a Level I reserve officer." The requirements for a regular POST Basic Certificate are even more stringent. POST Administrative Manual section F-1 (revised January 26, 1984) provides the requirements for a regular POST Basic Certificate. These include satisfactory completion of the appropriate POST Basic Course Training requirements, meeting the eligibility requirement in section F-1-2 and the application requirements in section F-1-3 and completion of "a period of satisfactory service in the appropriate program . . . of no less than one year, as attested by the department head." We conclude that a level I reserve peace officer may supervise a level III reserve peace officer only if he or she possesses a regular POST Basic Certificate. ***** 10 85-107

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127346/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General _________________________ : OPINION : No. 85-1104 : of : JUNE 24, 1986 : JOHN K. VAN DE KAMP : Attorney General : : RODNEY O. LILYQUIST : Deputy Attorney General : : ________________________________________________________________________ THE HONORABLE BILL BRADLEY, MEMBER, CALIFORNIA ASSEMBLY, has requested an opinion on the following question: May a redevelopment agency reimburse a landowner for property assessments paid to construct a flood control project where former members of the agency told the landowner that they would vote to reimburse him for all or some portion of the assessments from surplus funds that might come into the possession of the agency if the landowner would not formally protest the construction of the project? CONCLUSION A redevelopment agency may not reimburse a landowner for property assessments paid to construct a flood control project where former members of the agency told the landowner that they would vote to reimburse him for all or some portion of the assessments from surplus funds that might come into the possession of the agency if the landowner would not formally protest the construction of the project. 1 85-1104 ANALYSIS Section 6 of article XVI of the Constitution states: "The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any county, city and county, city, township or other political corporation or subdivision of the State now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, association, municipal or other corporation whatever; nor shall it have power to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever . . . ." The question presented for analysis is whether this constitutional prohibition is applicable where a redevelopment agency1 is asked to reimburse a landowner for certain property assessments paid to construct a flood control project. We conclude that it is. The factual circumstances which we must examine are unusual. In 1978 the landowner received city approval for the development of his property but declined to begin construction. In 1979 the city formed a redevelopment agency with the members of the city council designated as the members of the agency. (See Health & Saf. Code, § 33200.2 Among the contemplated projects of the agency was the construction of several flood control improvements. (See §§ 33020, 33021, 33032.) In 1981 the city determined that a flood control project in a particular area of the city should be built through formation of an assessment district pursuant to the provisions of the Municipal Improvement Act of 1913 (Sts. & Hy. Code, §§ 10000-10610). The landowner owned more than one-half of the area of land to be assessed for the project. Since redevelopment of his property was still not imminent, the landowner would have protested the formation of the district for such a purpose, except that the members of the agency told him they would vote to reimburse all or some portion of his assessments from surplus funds coming into the possession of the agency. In 1982 the assessment 1 Although the prohibition is directed at the "Legislature," a redevelopment agency is a creature of statute, the Community Redevelopment Law (Health & Saf. Code, §§ 33000-33855) and as such would be subject to the prohibition. (See Tevis v. City & County of San Francisco (1954) 43 Cal.2d 190, 196-197; Estate of Cirone (1984) 153 Cal.App.3d 199, 206; Golden Gate Bridge etc. Dist. v. Leuhring (1970) 4 Cal.App.3d 204, 207.) 2 All references hereafter to the Health and Safety Code are by section number only. 2 85-1104 district was formed without protest. In 1983 the project was completed and became the property of the local water district. (See Sts. & Hy. Code, § 10109; San Pablo v. East Bay Municipal Utility Dist. (1977) 75 Cal.App.3d 609, 617.) By 1984 the members of the agency who had made the "reimbursement" statements to the landowner were no longer in office. In 1985 surplus funds became available to the agency. No vote of the members of the agency has ever been taken with respect to reimbursing the landowner for his property assessments. The Community Redevelopment Law authorizes redevelopment agencies to make payment for previously constructed improvements under specified conditions. Section 33445 states in part: "When . . . the cost of the installation and construction of the . . . improvement . . . has been . . . paid or provided for initially by the community or other public corporation, the agency may enter into a contract with the community or other public corporation under which it agrees to reimburse the community or other public corporation for . . . all or part of the cost of the . . . improvement . . . by periodic payments over a period of years. "The obligation of the agency under the contract shall constitute an indebtedness of the agency for the purpose of carrying out the redevelopment project for the project area, which indebtedness may be made payable out of taxes levied in the project area and allocated to the agency under subdivision (b) of Section 33670, or out of any other available funds.3/ By its terms section 33445 allows reimbursement only to other governmental entities, not private parties such as the landowner here. The general provisions for the expenditure of funds by a redevelopment agency are contained in section 33622: "By resolution of the legislative body adopted by a majority vote, any money in the redevelopment revolving fund may be expended from time to time for: "(a) The acquisition of real property in any project area. 3 "Community" is defined for purposes of section 33445 as a city, county, incorporated group, or other entity which "exercises some local governmental powers." (§ 33002.) 3 85-1104 "(b) The clearance, aiding in relocation of site occupants, and preparation of any project area for redevelopment." The conditions for payment under section 33622 are not present here. Reimbursing the landowner for property assessments previously imposed to build a flood control project by another governmental entity does not satisfy the terms of section 33622. A redevelopment agency is authorized to enter into contracts (§ 33125) with private entities for the construction of public improvements if certain conditions are met (see, e.g., Pub. Contracts Code, § 20688.2), and may pay for its contractual obligations through the issuance of bonds (§§ 33640-33665), taxation (§§ 33670-33674), or the receipt of funds from other sources (§§ 33600-33601). The contracts of the agency, however, must be "necessary or convenient to the exercise of its powers." (§ 33125, subd. (c).) Here, the flood control project has long been constructed by another governmental entity and is owned and operated by a third governmental body. Making a contract now under such circumstances to pay for the costs of construction would not satisfy the requirements of section 33125. In County of Riverside v. Idyllwild County Water Dist. (1978) 84 Cal.App.3d 655, a water district argued that it had the authority to enter into a joint- powers agreement with a county to construct sewerage facilities and share the cost thereof. Such, however, had not been done; instead the district alone built the facilities and attempted to impose a capital cost charge against the county. The court ruled that the district could not receive the advantages of one course of conduct when it had chosen to act under a different statutory scheme: "The flaw in the argument is that the alleged agreement on which the district relies is not a joint-powers agreement for the construction of sewerage facilities; it is a user's agreement to pay charges. For the county to agree to pay an invalid charge would amount to a gift of public funds in contravention of article XVI, section 6 of the California Constitution." (Id., at p. 660.) In Golden Gate Bridge etc. Dist. v. Leuhring, supra, 4 Cal.App.3d 204, 212, the Court of Appeal observed that the "gratuitous assumption of an obligation or reimbursement of an expenditure is not generally permissible even though the original obligation or expenditure might have been in furtherance of purposes of the donor entity [citations]." 4 85-1104 We know of no provision of the Community Redevelopment Law that would sanction payment now by the redevelopment agency, given the facts presented. Nor are we aware of any other legislative enactment that would authorize payment. It has been suggested, however, that a legal theory, the doctrine of equitable estoppel, does exist for authorizing reimbursement based upon the fact that representations were made by the former agency members to the landowner in 1982. In analyzing this suggestion, we first note that the Municipal Improvement Act of 1913 allows interested persons to object to the construction of a proposed improvement. Streets and Highways Code section 10311 provides: "If the protest is against the proposed improvement and the legislative body finds that the protest is made by the owners of more than one-half of the area of the land to be assessed for the improvements, and protests are not withdrawn so as to reduce the protests to less than a majority, no further proceedings shall be taken for a period of one year from the date of the decision of the legislative body on the hearing, unless the protests are overruled by an affirmative vote of four-fifths of the members of the legislative body. Any person making a protest may withdraw the protest, in writing, at any time prior to the conclusion of the protest hearing. The legislative body may confirm, modify, or correct the proposed assessment." Here the landowner owned more than one-half of the area to be assessed for the flood control project. If he had protested, the protest could have been overruled by four members of the city council so voting. Instead, they made their "reimbursement" statements and the landowner did not protest. Importantly, it should be observed that the land- owner has benefited from the flood control project. The basis for any assessment levied under the Municipal Improvement Act of 1913 is that the land assessed will "be benefited by the improvement." (§ 10008; see Fresno County v. Malmstrom (1979) 94 Cal.App.3d 975, 984.) Moreover, the landowner was not in a position to delay the construction until his property was "better suited" to receive the benefit. (See Potrero Homes v. Western Orbis Co. (1972) 28 Cal.App.3d 450, 458-459.) Here the city council could have overridden the protest when presented. All that the former agency members stated was that they would vote in favor of reimbursing the landowner for all or some portion of the property assessments 5 85-1104 paid for the flood control project if surplus funds came into the possession of the agency.4 No such funds became available during the terms of office of these individuals. The members did not attempt to bind the agency itself to pay any funds (§ 33622) or affect the voting rights of future members of the agency.5 No promises were broken; no misrepresentation or fraudulent conduct has been alleged. In City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497, the Supreme Court stated that the doctrine of equitable estoppel could be asserted against governmental agencies in limited circumstances to prevent injustice: "The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel." The basic elements for an equitable estoppel were described as follows: "Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury." (Id., at p. 489.) 4 While the statements of the former members were exceedingly vague, we note that Civil Code section 1611 provides: "When a contract does not determine the amount of the consideration, nor the method by which it is to be ascertained, or when it leaves the amount thereof to the discretion of an interested party, the consideration must be so much money as the object of the contract is reasonably worth." 5 We thus need not examine "the general rule that one legislative body cannot limit or restrict its own power or that of subsequent legislatures and that the act of one Legislature does not bind its successors." (In re Collie (1952) 38 Cal.2d 396, cert. denied sub nom. Collie v. Heinze (1953) 345 U.S. 1000; see County of Los Angeles v. State of California (1984) 153 Cal.App.3d 568, 573.) Neither need we consider whether by carrying out the representations "a method would be afforded by which officials and persons dealing with the agency could evade the law." (County of San Diego v. Cal. Water etc. Co. (1947) 30 Cal.2d 817, 827; see also County of Riverside v. Idyllwild County Water Dist., supra, 84 Cal.App.3d 655; 660; County of Santa Barbara v. City of Santa Barbara (1976) 59 Cal.App.3d 364, 376.) 6 85-1104 It is apparent that an estoppel argument may not be properly asserted by the landowner here. The elements for an estoppel are not present; the rationale for applying the rule is absent. (See City of Long Beach v. Mansell, supra, 3 Cal.3d 462, 588 [the doctrine "'"involves fraud and false- hood"'"]; Fullerton Union High School Dist. v Riles (1983) 139 Cal.App.3d 369, 378-380 [the government's action in providing inaccurate advice or information must be proved sufficiently culpable to warrant an estoppel]; see also Longshore v. County of Ventura (1979) 25 Cal.3d 14, 28.) Not only are misrepresentations absent here but applying the doctrine of equitable estoppel would be of no assistance to the landowner under the facts presented. Even holding the former members of the agency to their statements, no vote for payment would have arisen since the agency had no surplus funds while the members were in office. Hence, we believe that payment now to the landowner by the redevelopment agency would not only contravene statutory law but be inconsistent with any possibly relevant legal theories. We view the request for payment as an "obviously worthless" and "wholly invalid" claim to which the gift of public funds prohibition is applicable. (See County of San Diego v. Hammond (1936) 6 Cal.2d 709, 720-724; Orange County Foundation v. Irvine Co. (1983) 139 Cal.App.3d 195, 201; County of Riverside v. Idyllwild County Water Dist., supra, 84 Cal.App.3d 655, 600; Walters v. Calderon (1972) 25 Cal.App.3d 863, 874; Golden Gate Bridge etc. Dist. v. Leuhring, supra, 4 Cal.App.3d 204, 212.) We thus conclude in answer to the question presented that a redevelopment agency may not reimburse a landowner for property assessments paid to construct a flood control project where former members of the agency told the landowner that they would vote to reimburse him for all or some portion of the assessments from surplus funds that might come into the possession of the agency if the landowner would not formally protest the construction of the project. ***** 7 85-1104

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127355/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General _________________________ : OPINION : No. 85-404 : of : APRIL 30, 1986 : JOHN K. VAN DE KAMP : Attorney General : : NELSON KEMPSKY : Deputy Attorney General : : ________________________________________________________________________ THE HONORABLE ART AGNOS, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question: Do Labor Code sections 1101 and 1102 prohibit a private employer from discriminating on the basis of homosexual orientation or affiliation? CONCLUSION Labor Code sections 1101 and 1102 prohibit a private employer from discriminating on the basis of homosexual orientation or affiliation. ANALYSIS For more than a decade, the homosexual community in California has strived by litigation and legislation for equality of treatment and equality of rights with the heterosexual community. The California Supreme Court has ruled that Labor Code 1 85-404 sections 1101 and 1102 protect employees who identify themselves as homosexual from reprisal by their employers. We are now asked whether those sections would be interpreted to prohibit a private employer from discriminating on the basis of homosexual orientation or affiliation. Section 1101 provides: "No employer shall make, adopt, or enforce any rule, regulation, or policy: "(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. "(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees." Section 1102 provides: "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." The prohibitions were originally enacted as a single section in 1915, and were recast by the Legislature in their present form in 1937.1 The courts have usually interpreted the statutes as being intended to defend employees engaged in traditional political activity from reprisal by their employer. For example, in Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 485, the Supreme Court commented that the statute concerned activities related to or connected with the orderly conduct of government and the peaceful organization, regulation and administration of the government. The sections protect "the fundamental right of employees in general to engage in political activity without interference by employers." (Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 335.) The statutes were enacted by the Legislature pursuant to its power under Article XIV, section 1, of the California Constitution to provide for the general welfare of employees in order that there be suitable protection of health and safety, and so that peace and good order may be promoted through regulations designed to insure wholesome 1 Stats. 1915, c. 38; Stats. 1937, c. 90. 2 85-404 conditions of work and freedom from oppression (Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 296). The most difficult interpretive issue regarding the statutes is the definition of which types of political action and affiliations are protected by the legislative shield against arbitrary action by a private employer.2 In 1979, the California Supreme Court was confronted with this issue in the case of Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458. In that lawsuit, four individuals and two associations asserted that the defendant company practiced discrimination against homosexuals in the hiring, firing and promotion of employees, and that the company's conduct violated, among other statutory provisions, Labor Code sections 1101 and 1102. The court first determined that the protection for "political activities" could not be narrowly confined to partisan activity on behalf of a political party. Reviewing decisions of the United States Supreme Court, it noted that participation in litigation, the wearing of symbolic armbands and the association with others for the advancement of beliefs and ideas had all been held to be political activities. (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 429; Tinker v. Des Moines School Dist. (1969) 393 U.S. 503; N.A.A.C.P. v. Alabama (1958) 357 U.S. 449.) Against this background of cases defining political activity in broad terms, the court concluded that the fight against discrimination on the basis of homosexuality was political in nature. It held (24 Cal.3d 458 at 488): "Measured by these standards, the struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity. Indeed the subject of the rights of homosexuals incites heated political debate today, and the 'gay liberation movement' encourages its homosexual members to attempt to convince other members of society that homosexuals should be accorded the same fundamental rights as heterosexuals. The aims of the struggle for homosexual rights, and the tactics employed, bear a close analogy to the continuing struggle for civil rights waged by blacks, women, and other minorities." 2 We concluded in 66 Ops.Cal.Atty.Gen. 486 (1983) that the federal and state constitutions compel the conclusion that a local public agency is barred from discrimination in its employment practices on the basis of sexual orientation. This opinion concerns whether employers in the private sector may engage in arbitrary discrimination. 3 85-404 While the nature of the plaintiffs' allegations invited the Supreme Court to make a broad ruling on the issue of whether homosexual orientation was entitled to protection as a political affiliation, the court limited its decision to a more narrow holding, sufficient to resolve the case before it even though it left other questions open to the future. After reviewing the assertion that the defendant discriminated against "manifest" homosexuals and against persons who make "an issue of their homosexuality," it construed the complaint as charging that the company (id.): ". . . discriminates in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations." Viewing the complaint in that light, the court held that the allegations stated a cause of action for violation of sections 1101 and 1102. The Supreme Court thus interpreted the statute as protecting those who identify themselves as homosexual, who defend homosexuality or who are identified with activist homosexual organizations. The court did not opine upon the rights of those who do not openly identify themselves as homosexual, and whether they are entitled to the same degree of protection against a policy which would subject them to discrimination on the basis of a belief as to their sexual orientation. Nevertheless, the court briefly discussed one aspect of the political aspiration of the homosexual community for equal rights (id.): "A principal barrier to homosexual equality is the common feeling that homosexuality is an affliction which the homosexual worker must conceal from his employer and his fellow workers. Consequently one important aspect of the struggle for equal rights is to induce homosexual individuals to 'come out of the closet,' acknowledge their sexual preferences, and to associate with others in working for equal rights." We are now asked the question left unanswered by the Supreme Court in Gay Law Students Assn.: Are employees with a homosexual orientation or affiliation protected in the same manner as those who identify themselves as homosexual, who defend homosexuality or who are identified with activist homosexual organizations? While the issue is not entirely free from doubt, we believe that if the California Supreme Court was directly confronted with the issue, it would rule that Labor Code sections 1101 and 1102 protect employees from discrimination on the basis of undisclosed or suspected homosexual orientation in the same manner as they protect employees from discrimination on the basis of open homosexual identification. 4 85-404 Initially, we find it quite improbable that the Legislature could have intended that it would be permissible for an employer to discriminate against an employee on the basis of undeclared political beliefs, while at the same time the employer was prohibited from discriminating against an employee on the basis of openly expressed political views. It is obvious that the Legislature has barred, for example, the discharge3 of an employee who openly declares himself or herself to be affiliated with the Republican or Democratic Party by reason of that party association. We cannot imagine that the Legislature intended at the same time to grant permission to an employer to have a policy permitting discharge of employees on the basis of the employer's belief that an employee is a covert Republican or a secret Democrat. It appears instead to have been the Legislature's judgment that political activities are not within the purview of an employer's legitimate interests, and that political activities or affiliations, whether private or public, should not be tolerated as the basis for employment decisions. In the context of the question we have been asked and the California Supreme Court's conclusion that homosexual identification is a political activity, we conclude that the Legislature's protection for political activity extends to those who have not made a public issue of their orientation as well as those whose stand is openly proclaimed. This conclusion is consistent with the text of the relevant sections, which point with fair clarity in that direction. Section 1101 bars any employer from any policy "tending to control or direct the political activities or affiliations of employees." Section 1102 bars any employer from attempting to coerce or influence any employee "to adopt or follow or refrain from adopting or following any particular course of line of political action or political activity." Returning to the analogy of employees with undisclosed affiliations with a political party, we can see that if an employer had a policy of discharging employees believed to be secretly associated with the Democratic Party, employees who were actually oriented in that direction would feel pressured to either declare themselves publicly as Democrats in order to secure the protection of Labor Code sections 1101 and 1102 for their political affiliation, or to declare themselves as Republicans in order to 3 While we use the example here of discharge from employment, the protection of the statutes is broader. Section 1102 prohibits an employer from threatening discharge or loss of employment for political action. Any denial, deprivation or diminution of employment status or benefits would constitute a loss. (See Gay Law Students Assn., supra, 24 Cal.3d at 487, n. 16.) 5 85-404 placate their employer. Those whose private orientation was toward the Republican Party would feel a similar compulsion to convince their employer of their orientation. In either case, the policy of the employer would coerce all employees to make a declaration of orientation one way or the other in order to secure the protection of the Labor Code. The effect of the policy would be to force the company's employees into particular courses of political activity, irrespective of any preference to keep their orientation a private matter. Remembering that the Supreme Court has defined open self-identification of homosexuality as a political act, we conclude that if an employer had a policy of discharging employees because the employer held a belief that the employee's personal sexual orientation was homosexual, that policy would tend to control or direct the political activities or affiliations of that employee and others as well. We also believe that the Supreme Court has presaged the decision it would render if presented with the question we discuss here. The court noted that an important aspect of the struggle for equal rights is to encourage homosexual individuals to acknowledge their sexual preferences. Interpreting the provisions of the Labor Code to permit employers to have a policy of discharging employees on the basis of the employer's beliefs concerning the sexual orientation of its employees would have a marked chilling effect upon the willingness of those employees to take the political action of declaring their sexual orientation. If such an employment policy impacted the political choices of a company's employees -- and it seems a certainty that such a policy would have a substantial tendency to do so -- it would violate the letter and the spirit of the two Labor Code sections we have been discussing. We conclude the Supreme Court would determine that the logic of the views it expressed in Gay Law Students Assn. leads inexorably to the conclusion that declarations and activities surrounding an employee's sexual orientation are matters of legitimate concern to the employee only, and that the Legislature has prohibited employers from adopting policies which would impact those choices. Since the Legislature has banned discrimination against employees on the basis of their political views, activities and affiliations, and since the Supreme Court has defined self-identification of homosexual orientation as protected political action, the Supreme Court would also rule that a policy of discrimination against employees on the basis of beliefs as to their homosexual orientation is also prohibited by that legislation. ***** 6 85-404

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4390231/

Third District Court of Appeal State of Florida Opinion filed April 24, 2019. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-0402 Lower Tribunal No. 05-29587 ________________ Yosvani Torres, Petitioner, vs. Mark Inch, etc., et al., Respondents. A case of Original Jurisdiction-Habeas Corpus. Yosvani Torres, in proper person. Ashley Moody, Attorney General, for respondent, the State of Florida. Before SALTER, LINDSEY, and MILLER, JJ. MILLER J. Yosvani Torres petitions this Court for a writ of habeas corpus alleging ineffective assistance of appellate counsel. We dismiss the petition as untimely pursuant to Florida Rule of Appellate Procedure 9.141(d)(5). In 2009, Torres was convicted and sentenced for two counts of capital sexual battery, and was duly sentenced. We affirmed his conviction and sentence on direct review in Torres v. State, 54 So. 3d 535 (Fla. 3d DCA 2011). On February 4, 2011, the mandate issued and Torres’s judgment and sentence became final. Florida Rule of Appellate Procedure 9.141(d)(5) provides: A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence become final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review. As Torres filed the instant habeas corpus petition on February 27, 2019, more than eight years after his judgment and sentence became final, we dismiss the petition as procedurally barred under rule 9.141(d)(5). See Mendoza v. State, 224 So. 3d 836 (Fla. 3d DCA 2017); see also Burroughs v. State, 65 So. 3d 1175 (Fla. 1st DCA 2011); Chance v. State, 65 So. 3d 1176 (Fla. 1st DCA 2011). 2

01-03-2023

04-24-2019

https://www.courtlistener.com/api/rest/v3/opinions/4142837/

Hon. W. A. Davis Opinion No. O-3.525 State Registrar Re: Whether or not an ille- Texas . . State - Board of Health gitimate .. child . . born. to , .a Austin, Texas aivorcea motner takes tne surname of her divorced hus- Dear Mr. Davis: band or her maiden name? We beg to acknowledge receipt of your letter of June 4, 1941, as follows, to-wit: “Will you please advise me as to the legal name of an illegitimate child born to a divorced mother, who retained the name of her former hus- band? Should such a child take the surname of her divorced husband, or her maiden. name before she married?” As a relic of the CommonLaw of marriage, the wife, upon her marriage, takes the name of her husband. This is the legitimate fruit of the CommonLaw conception, that upon marriage the identity of the wife as a juristic person was merged in that of her husband. There is no statute of Texas touching the question but it has been decided by the Supreme Court that the rule oh the CommonLaw, in the absence of a statute, governs the mat- ter. “Upon marriage the law confers upon the wife the name of her husband, and this continues to be her lawful name till changed by a subsequent mar- riage, or by the decree of a competent court as on final disposition of the divorce proceeding where such change of name is specially prayed for, -- a relic of the CommonLaw fiction of unity. While there is nothing in our statute compe~lling the wife to take or assume the name of her husband, yet by operation of law her husband’s surname be- comes her’s upon marriage. It has been held that she is not bound by a judgment in a suit against her in her name, as where she is cited therein by publicat ion D In such case she is not a party to the suit 0u -- Speer’s Law of Marital Rights (3d Ed.) p. 28, X 26. Hon. W. A. Davis, page 2 (O-3525) The text quoted cites Murphy v. Coffey, 33 Tex. 508, and Freeman v. Hawkins, 77 Tex. 1498. The case of Barkley v. Dunke, 87 S.W. 1147, by our Supreme Court illustrates the effect of marriage upon the status of the wife in this, that there had been a void marriage because the husband had a living wife, neverthe- less the court held that the marriage had the statutory ef-~ feet to emancipate the woman from the disability of infancy, which status began with and abided beyond the marriage sta- tus. There had been a dissolution of the attempted marriage in that case. See Speer's Law of Marital Rights (3d Ed.) page 27, X 25. From these authorities it follows that your ques- tion should be answered to the effect that in the case you put the illegitimate child takes the name of its mother, which, of course, in the case you state is the same as that of her divorced husband. Very truly yours ATTORNEY GENERAL OF TEXAS By /s/ Ocie Speer Ocie Speer, Assistant APPROVED JUN 11, 1941 FIRST ASSISTANTATTORNEY GENERAL APPROVED:OPINIONCOMMITTEE BY: BMB, CHAIRMAN OS:m:vb

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142851/

You h*n *tt*ohod to your letter e form copy OS euoh aaatraots and it rp:?rarstheroirom th*t the eontraat ia ror a ~484~~ ts*ahor to sorvb for a p*rtlaulax period ot tina, that he,will at.arli timer &ring said por%oQ ba rub- jaot to 4*u. by the Supnlntoodeat of Sohoo18, who rhould leaign hle d64ios in tha *vent biraamvioes ahoald ba mod.& Ttm salary irrfixed.and is payable isonthly. A8 w uzAderst8nQ, $36 onij que8tlon troubling you with roforanao to the oontnot ia whether a oontraot oen be ~ado legally for I reoervo teacher, Huwrablo Jeha R. But% Jr., Pa60 3 t&t4 18, Qa. who 3.84cD8*P1, only uimn orllrd upim to do m. OUP ualrwc bo yotlo iiT84 quo*tloR 411 Peqrehmd thia ntob- lomelolm. Aa t6 aar o%hu quwtlwe rtilohmight be reitmd w rhail aacliumo the oaatrea4 to be valid. It gWs ritheuS aaging that Ohm0 uo oooaUon8 la v&ionteaebua r lllo h o o lo are noawrutly ebuat troa ahelr regulu dutf~~, Worn illmws or 4th.r 4411408, 4u4h abewow aometlm b&&k&of oon8Nbnble dura4lon. The $m84wa ha*- fag th4 pew&~.40 4m~loy th4 r4@ulaP $444hos In the fire4 propor 8w ior and mea oim4raotr, *rw4m Waohuo~ awhy k l4 uo ( L la 4 0 le g a lly. Emy a pe~icm holding euoh a reecho t*aohw*8 aen- 4mo$ m4 b*ltwmlng owb tb4lea es am rdqtalrd of him w&u 4he b8roi8of 4he oonbhot b4 4oa*fd*roda tarotterulthla $he~ waning of-, bso csnrtlng 4lm Te80hor Ritirsmoa8 njrotae, king Astiolm 2922~li.Yuma*o Annotatoa Cl~ll Shabutsm? WOtiaprR l(3)e3(l),f(2), 3(S),ca.), &(a), 4(f), aat6(9) ol’ aa&4Aa4, nab 4(4),, *a*dbra 1. (3) Voo4hu~ rdrsllseam a pot- loa oap&*yo& on a trilltiao, rqulu 8al8ry ba818 by boudr 6i’~omma eohool diotrlobo, heardo of ladim~aMont mbool &106riote,oolurtysshoel houdm, BetlrmamatiJ at lh8uke8, Bete Boar6 et Xduaa- tiea ena ENate Depertxsent of Eduaatloa, boerd8 of pagan48 af o&lags aad wltuslti~o, ad any other legally somtltut4d board or egenoy of en eduae- tlfmol lne414u4ionor arganhation wpportcrd arbolly r4l)rby the mate. ti all oeaee o? doubt the Et rna*nt 8#rd of rruscew, twnlnefww w&a, ehell dater&n whathu 6 ptmron is a teroher aI deflw~ In ukls Aab. A iwaoher shall mom B person m,%d@Ffinrs wntw'to o~$aDfx~d publie edueatlon in  ~wofo+UmaI aOd burlsee mIninlotratlnaand euper- *irloa and in laobmiotlorr, In publto eobaol.8as d*firud in Wmeo4foa (2) ef tblo Ss4thn," %%a. 3. ,Thaemmh4rohlpot eela Ratbownt System ski.1 be owrpes*d es followat "(11 AU paraaw who em toaohrs ou the date u Oq whioh the Fmtimmmat System io oetablteImd r 8hall be44~4 umb4~4 a8 et that d4t4 e4 a 4onditWi of their omplt?pRent tullaaowithin A parbd of DiDO- 4y (901 d8yo situ Sop%ambor1, 1937, 44~ such bomha~ shall flla with the S%ota Board of Tm8tew ,,. om a fam pnserikd by au&s Beard, m notiow of hi4 llaoticn~nob to bb -1 In 4ba w&wabif) af the %y&oim A&' 8~duly meat&a4 rrlvar oi aU prismat opaotive~ benaflW rblah would othemcie~ iawo :sr * on: aoootlat of hit pcptio1pattonin the wa- "(2) %4glaDiner*ptamtmr 1, 1938, Mb timra- 8rWr say ,kaoher traoblng far the ZW8t tiah In %xa* shall beaorrra mdmbes ot t&m Ratir4k4at %y#aakw a ooadltlQaof air~omrpl6~at. ** l . "(5) b-0 VfhQhu talt&htiI3ah0 Stat0 Qf kxos ID oaomkia~ ldth tb trmm at thirpaot, but wbb 18 not ia nnioa d\pin$ the yau tn whloh the Aoa boooarrafYaatiro rWl1, Who k04mes a t484?44r within two (21 rwP9 of the data 4~ wbieh thla Aat koome8 bftootiv4,and if h4 oonti8u.8 m wah few a porfod oi tire (5) oonemutlv~ ymre, b 4 lbltl8d to rewivm oP0Ult on4 nsultlng belle- flta Sar p~Ur-tnl+f~r u $wwidob ?a’ in %his Aob” ., "804. b. *(I) On&or au& ruloe end regulntioneas ths %%a%~ %f~rd O? TRubOao shell adopt each person who riao a teaoher, a5 %0fiaad in this &OS, at any 4lmo during tho y?u fmwdi~t0ly preoedlngthe retabllehaurnt of the ~fetrm, and who b44csma A mmmbu durlag the Ur8t pu of op0retlon of the R4tir4244ot 9y8t0m, orrrboi8 amembu et the be&I- aiag ore*+ who01 fear 1937-1938, shell rile a H040rab14 fQh8 8. Rudd, Jr., Pago 5 deWled a&deema6 of4llT048b0r80~zo0,484 teaohu, nnauaa by hlxaprior to thr a4t4 of 48Wbli8hROM of WIO Ra$i?aa~mt?ystea for whloh k4 alaim orMit.- "(2) phr,ElIataRoud ot Trust448 sh8ll fix ana d*timn3no by 4ppropriatOrul44 and ngul4tloar ha m&l 4uTlor in 4ay par I4 eqairaloat to ouo mar at a.X'T%w, but ia as 4480 4hallaon th8n oae 7ur or somxo~ b4 orraitabi4 r0r 411 ~WV~W ia on. SshQQl yaar.’ *(,, Subjoa0 to 8h4 4boV4 F48triOtio44 4x1& to sliala0th.t ml*4 4aa ngrl~tioor 44 tks st4tO me6 br 'h~1149404 844~ 4d0pt, * 5-34~ f344d 0t 'fmal$W8'8hallv~rie 4~3 ad&at, arr(I- as QE40- tb4 filixq oi rooh rtata~nts tioablo;af'tar of au~iae, 6ha 80rviOo *banin sl4lmd. ‘*(4) rtpoa adjustment aad v4rliioatioa of th4 4t4k,muAt4 or serT:se, th* %a%. Board or l%lt4t~*:#all Leau4 pri- to* o4rtlflo4844 eOtti~@'Oa weoh asnbor tba laa&h of T0x44 4uTtoo'ranu4zoa prlqz to tha aat et Ok6 .*ta& Uahaa# ot thm Rotlnae~t Sptbm, tith whiob ha I& oi+ditra on alo ?%iais or hi4 stat4a44t ei SUTf m. Ea long 44 qambOr8Mp 40ntiml44,4 ~~wu-T;o~ 0miri04a0 d8a 5 :f;; zd oeao~urlr4rer F4tdrom4atpup044 s#rvlM, provided, hOwOver, Umt my m4mb4r =4y, withinon. (1)Jar tramthaart4 of 144u4aa. or kctditloatiloa o? 8ueh 04rtiflo4t0,r0nqu44t tke iW&o Bear& OS Tru8tOosto 40dlfj or 00rrOot hi4 QSiOF-84FViO4QSFtiffMt4. %han m8ab6trrhfpemao8. suoh ~rka-4&vlo0 outsiflaa8s4hrU baoeaaomid. Should tka UT ployao~agalnkoara 4 emaber, a u o h l p u r a n ahall Ontor 8IiOsy4tre a4 i 4OsbOr not 4atltlOdto ~lOr-SaETi~ OMdit 4XOODt 44 QroridOdi4 COO- t&u$!J, 8ubMotion (j), Q4r8Qwb (b) of th18 :~+*a*6. Stat4 lkwd 0P Trust644. _.. ,m(7} S&bjaot to the llmltatiom of this Aot, th* State Board at Tru4bos 4hal1, from the to tfna, srtablfsb rtrlesaad n&ul8tion8 for 4li%l- bility o? xmabuahip and for the lddnlstr8tion ” :, J  r -, 445 YPOW vhn% ww hove mid, it followe that In our opLaion.tho Bow-d oauld rule ee 8uwt.d ln your aaooi16 rnd focrr0bQuoetlQa*. Pow thltd qu8etfm oolmot bo enewu*4 mtdmr io a lly e enaewm~ ml t ver y eia o th looordlag to the eetent ett&e lo ttmlly putortoa $ Tek for e inetaaoo the holder of l reoerve toaoher’e oc&ot who lotuallp tiught tha vbole ym?P.~ Ae 8 anttw OS law, he would be a tmobor tar thnt pu,~ip ,rotls4 octd a you’s orrtlitablo eenioo, enU lf lb hqpened to ba 193647, it would onablo kfa to leteblieh priar mioe, *a6 the 84ud -oould not paerrl rule .whiahvould War it. 011the otbu hurd, lu~~oeo the poreon lmldlng l;beooatno% did noS rondoa-l *In&a day*8 aotual tinlo~ and She atrotum~neoe 8bouU inbloate t&at aa a wet- liarat mot 1t .-6 Rot 0@3tOW&tlOt~d thea ha should. IIt our oplalon l rul? oaulU be aada whloh rouU 6m~p hla statueee 0 keoher tar &Xl puxpo8ar dtaring thab year. Soawtmrm, af a reaeaaeble pUoe, kt#cn these lrtna@e tb Board MT d-w 100 llam. %a Ub not belier0 the Bawd he0 loet its pov6re efur*e8fd 00 So 6h8es various teeohue'by reeeoa of the toot I.

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142853/

C 0 P Y Honorable Xrnest Oulnn County Attorney Zl Paso County El Ps&o,,Texaa Dear air: Opinion No. O-3510 R0: Hill it be possible for the qualifying oaths cU newly appointed notaries publlo to be taken prior to June lst? Your recent reoeipt for an opinion of this Department on the above stated question has been mceived. We quote from your letter as iollowst "Ceratin agents of insurance oompnies here interested in writing bonds for the newly appointed Notary Publlos have asked me whether or not it will be possible for them as notaries to take the qunl- itying oaths of said newly appointed Notaries prior to June 1, whioh is the date their appointments expire, in order to have all of the papers ready for Siling the first thing June 1. It is the desire of thear agents to do this sinoa some OP them have 100 or more bonds to exeoute and everyone of course la anxious to be qualified as soon es possible after the expifltionof their other appointment. "I oan see no objeatlon to this procedure since under the lew, Artiole 5951, it only requires an appesranoe berore the County Clerk within ten days after his appointment and it would seem to me that the oath aoialdbe taken at any time after the appointment has been made and irrospeotlve of whether or not the previous appointmenthas expired.: Honorable Ernest Cuijln,pago 2 '1 am addressing this communloation to you oinoe It is very imwrtant that the notaries Qualify properly in order that their acts may not be invalid. I would apprcoiate a reply from you just as soon a8 possible and before May 31 if at all posaible.a Article 5949, Vernon's AMotated Clvll Statutes, provides: "The Secretary ot State of the State of Texas shall appoint a convenient number of ootarier publia ,rar each oounty, Notaries pub110 may be appointed at any time, but the terms of all notaries public shall end on June let of each odd numbered year. To be eli?ible for appointment aa notary publio, a person shall be at least twenty-one (21) years of age and a resident of the county for which he is appolntcd." Under the provisions -f Article 5951, Vernon's Annotated Civil Statutes, when a person has been appointed notary the Secretary of State is required to forward the oo.znnisaionto the clerk of the oounty where the notary resides, end in the absence of evldenoe to the contrary, it will be presumed t&t this duty has been performed. As a rule, the notary muit qualify within ten daya after he has been notified to appear before the county clerk; and if he fails in this the appointment becomes a nullity, (Faubion v, State, 2E2 3. WY.597), in whlah oase the clerk must c~rtifp on back of the commission that the appointee has failed to q:ialliy,:indreturn it to the Secretary of State - (Article 5Q52, Vernon's Annotated Civil Statutes). Notaries are required to take and subscribe the official oath, and to execute bond payable to the Covernor, conditioned for the faithful performance of the duties of the office, The bond (for $1,000) must be approved by, and reoorded and deposited in the oftice of the ci;untyclerk - (Article 5953, Vernon's Annotated Civil Statutes). In view of the foregoing statutes, it is the opinion of this Department that after the Secretary of 3t;itehas forwarded the commission to the oounty clerk of the oounty where the party resides, it is the duty OS said clerk to immediately notify the party to appear before him within ten dapr, pay for his oommis- alon and qualify according to law. It is our further opinion that the person appointed notary public can qualify as a notary public after the Secretary of Stcte has lorwarded the commission to the co::ntyclerk before June 1st by taking the oath and Honorable Ernest OU~M, page 3 giving bond as required by the above mentioned atatute. It will be noted that under Artiole 5949, supra, that notaries pub110 may be appointed at any time. However, Article 6951, supra, sets forth the manner in which suoh notaries shall qualify. Notaries who are now serving as such and xho have been reappointed may qualify before June 1st as above stated. How- ever, suoh notaries do not assume their duties under the new appointment as such until June lst, althcugh they have ,-uallfied as above stated. Tru&dng that the foregoing full::answers your inquiry, we era Yours very truly ATTOR?uu GEhL3RA.L OF TRXAS ‘BY S/ Ardell 7?111iams Assistant AEROVED L;zY 28, 1941 S/ Grover Sellers FIRST ASSISTANT ATTORNEY GRNERAL APPROVED-Opinion Committee ByBWB - Chairman

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127401/

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. 86-1103 : JOHN K. VAN DE KAMP : MAY 27, 1987 Attorney General : : RODNEY O. LILYQUIST : Deputy Attorney General : : --------------------------------------------------------------­ THE COMMISSION ON JUDICIAL PERFORMANCE has requested an opinion on the following question: Are Code of Civil Procedure section 2093 and Government Code section 1225 constitutional in requiring the Commission on Judicial Performance to issue certifications under specified conditions? CONCLUSION Code of Civil Procedure section 2093 and Government Code section 1225 are constitutional in requiring the Commission on Judicial Performance to issue certifications under specified conditions. ANALYSIS The Legislature has recently amended Code of Civil Procedure section 2093 and Government Code section 1225 (Stats. 1986, ch. 1418) to require the Commission on Judicial Performance ("Commission") to issue a certification to a former judge or justice under certain conditions. Section 2093 provides: "(a) Every court, every judge, or clerk of any court, every justice, and every notary public, and every officer or person authorized to take testimony in any action or proceeding, or to decide upon evidence, has power to administer oaths or affirmations. "(b) A former judge or justice of a court of record in this state who retired or resigned from office, other than a judge or justice who was retired by the Supreme Court for disability, shall have the power to administer oaths or affirmations, if the former judge or justice requests and receives a certification from the Commission on Judicial Performance that there was no formal disciplinary proceeding pending at the time of retirement or resignation. Where no formal disciplinary proceeding was pending at 1. 86-1103 the time of retirement or resignation, the Commission on Judicial Performance shall issue the certification. "No law, rule, or regulation regarding the confidentiality of proceedings of the Commission on Judicial Performance shall be construed to prohibit the Commission on Judicial Performance from issuing a certificate as provided for in this section." Section 1225 similarly states: "Every executive and judicial officer and every Member of the Legislature may administer and certify oaths. "A former judge of a court of record in this state who retired or resigned from office, other than a judge who was retired by the Supreme Court for disability, shall be deemed a judicial officer for purposes of this section, if the former judge requests and receives a certification from the Commission on Judicial Performance that there was no formal disciplinary proceeding pending at the time of retirement or resignation. Where no formal disciplinary proceeding was pending at the time of retirement or resignation, the Commission on Judicial Performance shall issue the certification. No law, rule, or regulation regarding the confidentiality of proceedings of the Commission on Judicial Performance shall be construed to prohibit the Commission on Judicial Performance from issuing a certificate as provided for in this section." The question presented for resolution is whether the Commission may constitutionally issue a certification as directed by these two statutes. We conclude that the statutes are consistent with the provisions of the California Constitution. In Mosk v. Superior Court (1979) 25 Ca1.3d 474, 489-490, the Supreme Court summarized the duties of the Commission as follows: "It has authority to investigate complaints of judicial misconduct, a judge's failure or inability to perform the duties of a judge, and other conduct prejudicial to the administration of justice. The Commission has authority to conduct hearings, make findings of fact (see Gov. Code, §§ 68750-68755; Cal. Rules of Court, rules 901-922), and recommend to the Supreme Court that a given judge be censured or removed or retired from the court. (Cal. Const., art. VI, § 18, subd. (c).) The Commission may privately admonish a judge for improper action or a dereliction of duty, but it has no power to censure, remove, retire, or otherwise discipline a judge. It can only make certain recommendations to the Supreme Court which then reviews the evidence and makes its own findings. ( Geiler v. Commission on Judicial Qualifications (1973) 10 Ca1.3d 270, 276; Spruance v. Commission on Judicial Qualifications (1975) 13 Ca1.3d 778.) Although the Commission's findings are given great weight by the Supreme Court, they are inconclusive except where the Commission, having made a preliminary investigation, concludes that there is insufficient evidence to charge a judge with judicial misconduct." The Commission conducts its affairs in accordance with rules promulgated by the Judicial Council. Section 18 of article VI of the Constitution not only specifies what the Commission may do but it mandates that the Judicial Council adopt rules concerning the Commission's proceedings. Section 18 provides in relevant part: "(a) A judge is disqualified from acting as a judge, without 2. 86-1103 loss of salary, while there is pending . . . a recommendation to the Supreme Court by the Commission on Judicial Performance for removal or retirement of the judge. "(b) On recommendation of the Commission on Judicial Performance or on its own motion, the Supreme Court may suspend a judge from office without salary. . . . "(c) On recommendation of the Commission on Judicial Performance the Supreme Court may (1) retire a judge for disability that seriously interferes with the performance of the judge's duties and is or is likely to become permanent, and (2) censure or remove a judge for action occurring not more than 6 years prior to the commencement of the judge's current term that constitutes wilful misconduct in office, persistent failure or inability to perform the judge's duties, habitual intemperance in the use of intoxicants or drugs, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute. The commission may privately admonish a judge found to have engaged in an improper action or a dereliction of duty, subject to review in the Supreme Court in the manner provided for review of causes decided by a court of appeal. " . . . . . . . . . . . . . . . . . . . . . . . "(f) The Judicial Council shall make rules implementing this section and providing for confidentiality of proceedings." The Judicial Council is comprised of the Chief Justice and one other justice of the Supreme Court, three Court of Appeal justices, five superior court judges, three municipal court judges, two justice court judges, four State Bar members and two legislators. (Cal. Const., art. VI, § 6.) Besides adopting rules for the Commission's proceedings, it has several other duties, including: "To improve the administration of justice the council shall survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute." (Cal. Const., art. VI, § 6.) The Judicial Council's rules for the Commission's proceedings are contained in the California Rules of Court, rules 901-922. Rule 902 provides for the confidentiality of the Commission's proceedings: "(a) Except as provided in this rule, all papers filed with and proceedings before the Commission, or before the masters appointed by the Supreme Court pursuant to rule 907, shall be confidential until a record is filed by the Commission in the Supreme Court. Upon a recommendation of censure, all papers filed with and proceedings before the Commission or masters shall remain confidential until the judge who is the subject of the proceedings files a petition in the Supreme Court to modify or reject the Commission's recommendation or until the time for filing a petition expires. "Information released by the Commission under this subdivision in proceedings resulting in a recommendation of censure shall make appropriate reference to a petition for review in the Supreme Court filed by the judge, if any is filed, to the end that the public will perceive that the Commission's recommendation and findings are wholly or partly contested by the judge. 3. 86-1103 "(b) The Commission may release information regarding its proceedings under the following circumstances: "(1) If a judge is publicly charged with involvement in proceedings before the Commission resulting in substantial unfairness to him, the Commission may, at the request of the judge involved, issue a short statement of clarification and correction. "(2) If a judge is publicly associated with having engaged in serious reprehensible conduct or having committed a major offense, and after a preliminary investigation or a formal hearing it is determined there is no basis for further proceedings or recommendation of discipline, the Commission may issue a short explanatory statement. "(3) When a formal hearing has been ordered in a proceeding in which the subject matter is generally known to the public and in which there is broad public interest, and in which confidence in the administration of justice is threatened due to lack of information concerning the status of the proceeding and the requirements of due process, the Commission may issue one or more short announcements confirming the hearing, clarifying the procedural aspects, and defending the right of a judge to a fair hearing. "(4) If a judge retires or resigns from judicial office following institution of formal proceedings, the Commission may, in the interest of justice or to maintain confidence in the administration of justice, release information concerning the investigation and proceedings to a public entity . "(5) Upon completion of an investigation or proceeding, the Commission shall disclose to the person complaining against the judge that after an investigation of the charges the Commission (i) has found no basis for action against the judge, (ii) has taken an appropriate corrective action, the nature of which shall not be disclosed, or (iii) has filed a recommendation for the censure, removal, or retirement of the judge. The name of the judge shall not be used in any written communication to the complainant, unless the record has been filed in the Supreme Court." (Emphasis added.) Several reasons have been given for maintaining the confidentiality of the Commission's proceedings. In Mosk v. Superior Court, supra, 25 Ca1.3d 474, 491-492, the court stated: "The confidentiality of investigations and hearings by the Commission is based on sound public policy. Confidentiality encourages the filing of complaints and the willing participation of citizens and witnesses by providing protection against possible retaliation or recrimination. (McCartney v. Commission on Judicial Qualifications (1974) 12 Ca1.3d 512, 521; Landmark Communications, Inc. v. Virginia (1978) 435 U.S. 829.) Confidentiality protects judges from injury which might result from publication of unexamined and unwarranted complaints by disgruntled litigants or their attorneys (Landmark Communications, Inc. v. Virginia, supra), or by political adversaries. Confidentiality of investigations by the Commission preserves confidence in the judiciary as an institution by avoiding premature announcement of groundless claims of judicial misconduct or disability. ( Landmark Communications, Inc. v. Virginia, supra.) Confidentiality of proceedings before the Commission is essential to protecting the judge's constitutional right to a private admonishment (see Cal. Const., art. VI, § 18, 4. 86-1103 subd. (c)), if the circumstances so warrant. When removal or retirement is justified by the charges, judges are more likely to resign or retire voluntarily without the necessity of a formal proceeding if the publicity that would accompany such a proceeding can thereby be avoided. (Landmark Communications, Inc. v. Virginia, supra, 435 U.S. 829.) Leading writers have recognized that confidentiality of investigations and hearings by the Commission is essential to its success. (See Frankel, Judicial Conduct and Removal of Judges for Cause in California (1962) 36 Cal.L.Rev. 72; Frankel, Removal of Judges: California Tackles an Old Problem (1963) 49 A.B.A. J. 166, 170; Traynor, Rising Standards of Courts and Judges (1965) 40 State Bar J. 677, 688; 1965 Rep. of the Com. on Judicial Qualifications to the Governor, p. 2.)" (Fns. omitted, emphasis added.) To this list may be added the purpose of protecting the right of the Supreme Court "to decide for itself whether to administer public censure." ( Gubler v. Commission on Judicial Performance (1984) 37 Cal. 3d 27, 60.) Having thus examined the statutes in question and the roles of the Commission and Judicial Council under the Constitution, we turn to the applicable rules for determining whether these statutes are constitutional. In Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal. 3d 685, 691, the Supreme Court stated: "Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of the Legislature. [Citations.] Two important consequences flow from this fact. First, the entire law-making authority of the state, except the people's right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly or by necessary implication denied to it by the Constitution. [Citations.] In other words, 'we do not look to the Constitution to determine whether the legislature is authorized to do an act, but only to see if it is prohibited.' [Citation.] "Secondly, all intendments favor the exercise of the Legislature's plenary authority: 'If there is any doubt as to the Legislature's power to act in any given case, the doubt should be resolved in favor of the Legislature's action. Such restrictions and limitations [imposed by the Constitution] are to be construed strictly, and are not to be extended to include matters not covered by the language used.' [Citations.] Conversely, a constitutional amendment removing those restrictions and limitations should, in cases of doubt, be construed liberally 'in favor of the Legislature's action.'" Moreover, in Pacific Legal Foundation v. Brown (1981) 29 Cal. 3d 168, 180, the court observed: "[O]ur past cases establish that the presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions clearly in mind. [Citation.] In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. Although the ultimate constitutional interpretation must rest, of course, with the judiciary [citation], a focused legislative judgment on the question enjoys significant weight and deference by the courts." Applying these principles, we find that the Legislature has enacted 5. 86-1103 Code of Civil Procedure section 2093 and Government Code section 1225 with the language of article VI of the Constitution in mind. Both statutes provide: "No law, rule, or regulation regarding the confidentiality of proceedings of the Commission on Judicial Performance shall be construed to prohibit the Commission on Judicial Performance from issuing a certificate as provided for in this section." Hence each must be given "significant weight and deference" in considering its constitutionality. While these statutes are tangentially related to the constitutional powers of the Commission and Judicial Council, the Legislature has not sought to compromise the authority of either public body. Disclosure under the statutes is made only to the former judge and only when "there was no formal disciplinary proceeding pending at the time of retirement or resignation." In the absence of such proceedings, the statutes do not impinge upon the Judicial Council's authority to adopt rules with respect to the Commission's proceedings; maintaining the confidentiality of the proceedings is assured under the legislation. The goals of protecting complainants and witnesses and the right of the Supreme Court to administer public censure are not threatened where the disclosure concerns solely the nonexistence of proceedings. It must also be noted that the constitutional provision for confidentiality terminates when the Commission files its record in the Supreme Court. (See Gubler v. Commission on Judicial Performance, supra, 37 Cal. 3d 27, 59-60; Mosk v. Superior Court, supra, 25 Cal. 3d 474, 490, 499.) Such is also the basic provision of rule 902 of the California Rules of Court. We believe that disclosure to a former judge that no proceedings existed may be treated similarly to the situation where the proceedings have terminated. Support for this conclusion may be found in Gubler v. Commission on Judicial Performance, supra, 37 Cal. 3d 27, 59, where the court observed that the constitutional provision for confidentiality "was construed in Mosk v. Superior Court (1979) 25 Cal. 3d 474, to require that commission proceedings be confidential, at least while they are under way." Code of Civil Procedure section 2093 and Government Code section 1225 do not compromise any proceedings of the Commission that are, or were ever, underway. We are directed to harmonize and give effect to both the Constitution and the Legislature's statutes if at all possible. (See State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal. 3d 422, 437-441; Pacific Legal Foundation v. Brown, supra, 29 Cal. 3d 168, 193-199.) Here we find no impermissible conflict. Simply put, nothing is disclosed to the public under these statutes, and no pending or closed proceeding of the Commission is compromised. Different public purposes are served by the constitutional provisions and the statutes with differing consequences. 6. 86-1103 In answer to the question presented, therefore, we conclude that Code of Civil Procedure section 2093 and Government Code section 1225 are constitutional in requiring the Commission to issue certifications under the specified conditions. * * * * * 7. 86-1103

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127410/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General _________________________ : OPINION : No. 86-502 : of : APRIL 1, 1987 : JOHN K. VAN DE KAMP : Attorney General : : CLAYTON P. ROCHE : Deputy Attorney General : : ________________________________________________________________________ THE HONORABLE RICHARD J. MOORE, COUNTY COUNSEL, ALAMEDA COUNTY, has requested an opinion on the following question: Are meetings of the Board of Directors of the Oakland-Alameda Coliseum, Inc. subject to the open meeting requirements of the Ralph M. Brown Act, Government Code section 54950 et seq.? CONCLUSION Meetings of the Board of Directors of the Oakland-Alameda Coliseum, Inc. are subject to the open meeting requirements of the Ralph M. Brown Act, Government Code section 54950 et seq. 1 86-502 ANALYSIS The Ralph M. Brown Act, Government Code section 54950 et seq.1 requires that all meetings of "legislative bodies" of "local agencies" as defined in the act shall be open and public unless excepted by the act or by some other confidentiality provision of the law. (See 54951-54953; Sacramento Newspaper Guild v. Sacramento County Bd. of Suprs. (1968) 263 Cal. App. 2d 41.) "Legislative body" as defined in the act is not restricted to the actual governing body of a "local agency." Also "local agency" as defined in the act may include nongovernmental bodies. This request for our opinion posits the question whether the Board of Directors of the Oakland-Alameda Coliseum, Inc. is subject to the open meeting requirements of the Ralph M. Brown Act. The corporation is a California nonprofit corporation. Its board consists of private citizens, none of whom are appointed by any governmental officer or agency. I. FACTUAL BACKGROUND The Oakland-Alameda County Coliseum, Inc. was formed in 1961 by six private citizens under the then California General Nonprofit Corporation Law. Its stated purposes were to acquire the necessary real property and to construct a multi-purpose public recreation coliseum and stadium in the City of Oakland, and to conduct the business affairs of such a complex so as to ultimately vest in the City of Oakland and the County of Alameda all the right, title and interest of the corporation in the Coliseum complex. To effectuate these purposes the corporation entered into a master agreement with both the City of Oakland and the County of Alameda which provided in detail for the acquisition and construction of the Coliseum complex, the operation thereof by the corporation, and the ultimate transfer of the complex to the city and the county. This agreement was entered into in the latter part of 1963. The master agreement provided that the Coliseum should be constructed and financed through the medium of a classic lease and lease-back such as have been approved in cases such as Dean v. Kuchel (1950) 35 Cal. 2d 444; City of Los Angeles v. Offner (1942) 19 Cal. 2d 483 and County of Los Angeles v. Nesvig (1965) 231 Cal. App. 2d 603.2 1 All section references are to the Government Code unless otherwise indicated. 2 The lease and lease-back is commonly used to finance the construction of public facilities through the aegis of a nonprofit corporation, thus avoiding the debt limitation provisions of the 2 86-502 Accordingly, the Coliseum, Inc. agreed to acquire at its own expense the real property on which the Coliseum complex was to be constructed and to convey it (including improvements to be made thereon) to the city and county. The city and county agreed to deposit with a local bank, as trustee, the sum of $1,000,000 as the purchase price of the real property. Coliseum, Inc. further agreed to simultaneously deposit the sum of $26,000,000 with that bank, as trustee, and agreed to place the deed to the real property in escrow for delivery to the city and county. The sums so deposited were to be applied to the purchase of the Coliseum complex site and (at the direction of the corporation) to the construction costs and expenses of the complex. In the grant from Coliseum, Inc. to the city and county of the real property, the corporation reserved in its favor a ground lease for 40 years. The corporation then executed a sublease of the land and all improvements to be built thereon to the city and county which would expire 10 days before the expiration of the ground lease. In consideration of the sublease, the city and the county agreed to pay Coliseum, Inc. $1,500,000 per year which would be utilized to retire the bonds the corporation would issue to finance construction of the Coliseum complex. The master agreement further provided that Coliseum, Inc. agreed to build and operate the Coliseum facilities. Additionally, the city and county agreed to pay to Coliseum, Inc. the sum of $250,000 as consideration for the execution of the master agreement. They also agreed to pay the corporation the sum of $1,000,000 in consideration of the corporation's agreement to have the plans and or specifications prepared and subsequently to transfer title to these plans and specifications to the city and county, subject, however, to the corporation's use. Finally, the master agreement provided that upon the termination of the 40 year ground lease which the corporation had reserved to itself, the title to all the Coliseum facilities would vest in the city and the county. As noted, the master agreement contained as a part thereof the actual operating agreement between Coliseum, Inc. and the City and the County. Under that "sub-agreement" the corporation agreed to operate the Coliseum facilities as an independent contractor and pay the net income from such operation to the city and the county. The operating agreement permitted and permits the corporation to adopt an annual budget, establish rules, regulations, rates and charges for the operation of the Coliseum complex. However, these matters are subject to be modified at the instance of the city and the county. California Constitution applicable to the state and local governments. (See. Cal. Const., art. XVI, §§ 1, 18.). See also section 54240 et seq. re "public leasebacks." 3 86-502 It is thus seen that for some time into the future the Oakland Coliseum complex is to be operated by the Oakland-Alameda Coliseum, Inc. Its basic policy decisions will be made by that corporation's board, subject to possible change by the city and county. In short, it will not be until the year 2003 that the Oakland Coliseum complex will be both owned and operated by the city and county.3 II. RESOLUTION OF THE ISSUE As noted at the outset, the Ralph M. Brown Act is applicable to "legislative bodies" of "local agencies" as these are defined in the Act. As stated in section 54953: "All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter." However as noted at the outset, a "legislative body" as defined may not necessarily be the governing body, and a "local agency" as defined may not necessarily be a governmental unit. Before discussing the two statutory provisions upon which the resolution of the question presented depends, that is, whether the Board of Directors of The Oakland- Alameda Coliseum, Inc. is subject to section 54953, supra, and other provisions of the Ralph M. Brown Act, we wish to dispose of a preliminary or threshold issue. It has been suggested that the Oakland-Alameda Coliseum, Inc. as an entity meets none of the definitions of a "local agency" set forth in the act. Accordingly, or so goes the argument, since the act applies only to "legislative bodies" of "local agencies", it is immaterial that the corporation or its board of directors may literally fall within the meaning of one or more of the definitions of "legislative body" set forth in the act. Although appealing in its simplicity, we reject such suggestion since it is based upon a faulty premise. That premise is that before a particular board or commission is subject to the Ralph M. Brown Act, the entity of which it is a part must itself be a "local agency." However, as we will demonstrate herein, all that is necessary is that a particular board or commission or other multi-member body meets any one of the definitions of "legislative body" contained in the act. If it does, then that particular board, commission or other multi-member body 3 We note parenthetically that the master agreement, including the method of financing the construction of the Oakland Coliseum complex and the operating agreement, was upheld by the courts as being in all respect "lawful and valid" in County of Alameda, et al.v. Eugene Warino, as auditor of the County of Alameda, et al., Alameda County Superior Court No. 337071. 4 86-502 will be a "legislative body" of the local agency to which it is related or "tied" by the statutory definition.4 For purposes of the Ralph M. Brown Act "local agency" is defined in three sections, that is, sections 54951, 54951.1, and 54951.7. For purposes of the act "legislative body" is defined in four sections, that is, sections 54952, 54952.2, 54952.3 and 54952.5. Section 54951 sets forth what might be characterized as the general definition of "local agency." It provides: "As used in this chapter, 'local agency' means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency." Thereafter,"local agency" is defined in sections 54951.1 and 54951.7 to include certain nonprofit corporations, neither of which would include the Oakland-Alameda Coliseum, Inc. Section 54951.1 provides: "For the purposes of this chapter, and to the extent' not inconsistent with federal law, the term local agency' shall include all private nonprofit organizations that receive public money to be expended for public purposes pursuant to the 'Economic Opportunity Act of 1964.'" And section 54951.7 provides: "'Local agency' includes any nonprofit corporation, created by one or more local agencies, any one of the members of whose board of directors is appointed by such local agencies and which is formed to acquire, construct, reconstruct, maintain or operate any public work project." As will be recalled, the Oakland-Alameda Coliseum, Inc. was formed by six private individuals. And further, no member of its board of directors is appointed by either the City of Oakland or the County of Alameda. Furthermore, it has nothing to do with the Economic Opportunity Act of 1964. 4 The faulty basic premise also overlooks the real possibility that a multi-member group which meets one of the definitions of "legislative body" contained in the act may be a diverse group having no relationship to any common entity. 5 86-502 We now proceed to the definitions of "legislative body" for purposes of the Ralph M. Brown Act. Initially, section 54952 sets forth what may be characterized as the general definition thereof and provides: "As used in this chapter, 'legislative body' means the governing board, commission, directors or body of a local agency, or any board or commission, committee, or other body on which officers of a local agency serve in their official capacity as members and which is supported in whole or in part by funds provided by such agency, whether such board, commission, committee or other body is organized and operated by such local agency or by a private corporation." Section 54952.2 then provides a definition of "legislative body" for bodies which have been delegated authority of a local agency. It provides: "As used in this chapter, 'legislative body' also means any board, commission, committee, or similar multi-member body which exercises any authority of a legislative body of a local agency delegated to it by that legislative body." Section 54952.3 thereafter provides a definition of "legislative body" so as to include advisory bodies to a local agency. It provides: "As used in this chapter 'legislative body' also includes any advisory commission, advisory committee or advisory body of a local agency, created by charter, ordinance, resolution, or by any similar formal action of a legislative body or member of a legislative body of a local agency. . . . "'Legislative body' as defined in this section does not include a committee composed solely of members of the governing body of a local agency which are less than a quorum of such governing body. . . ." And finally, section 54952.5 provides a definition of "legislative body" which includes permanent boards and commissions of a local agency. It provides: "As used in this chapter 'legislative body' also includes, but is not limited to, planning commissions, library boards, recreation commissions, and other permanent boards or commissions of a local agency." It is thus seen that the fact that a nonprofit corporation is not one of the types contemplated by sections 54951.1 or 54951.7 supra, does not necessarily preclude 6 86-502 its inclusion within the requirements of the Ralph M. Brown Act. This is manifest from a reading of the definition of "legislative body" set forth in the general definition of section 54952 where certain boards, commissions, committees or bodies of a local agency are to be included "whether such board, commission, committee or other body is organized and operated by such local agency or by a private corporation." (Emphasis added.) In short, it is seen that if the statutorily specified relationship exists between a privately organized or operated committee and a "local agency", that board, commission or other body will be a legislative body of that local agency. This same reasoning should apply throughout. Thus where a private board or commission meets the criteria set forth in any of the definitions of "legislative body", a sufficient connection will exist between it and the local agency to which it is "tied" so as to make it a "legislative body" of that local agency. We so conclude.5 Having disposed of this preliminary threshold issue, we proceed to the main issue, that is, whether the Board of Directors of the Oakland-Alameda Coliseum, Inc. is subject to the Ralph M. Brown Act. As we view the problem, the question is whether to focus upon the definition of "local agency" set forth in section 54951.7, supra, to resolve the issue, or whether to focus upon the definition of "legislative body" set forth in section 54952.2 to do so. Section 54951.7, enacted in 1970 (Stats 1970, ch. 710, 1), provides that a "local agency" will include a nonprofit corporation formed 1) "to acquire, construct, reconstruct, maintain or operate any public work project" when 2) the nonprofit corporation was formed by one or more local agencies and 3) any one of its board members is appointed by such local agencies. The Oakland-Alameda Coliseum, Inc. would meet criteria "1,"6, but not "2" or "3." As will be recalled, the corporation was formed by six private citizens in 1961, and none of its board is appointed either by the City of Oakland or the County of Alameda.7 5 We would also note the futility of attempting to narrowly construe what is a "local agency" for purposes of the Ralph M. Brown Act when one observes that "any board or commission thereof" is both a "local agency" as defined in section 54951 of the act and a "legislative body" as defined in section 54952 of the act. The Legislature itself has blurred any line one might attempt to draw between the two. 6 . "There is no doubt that the term 'public works' means 'all fixed works constructed for public use,'. . . " . (Cuttino v. McKinley (1933) 130 Cal. App. 136, 138. See also Raley v. California Tahoe Regional Planning Agency (1977) 68 Cal. App. 3d 965, 982-983.) 7 One might speculate that the city and the county may have significant input as to who is appointed to the board. However, this would not vitiate the Articles of Incorporation of Oakland- Alameda Coliseum, Inc. which states: 7 86-502 Section 54952.2, enacted in 1981 (Stats 1981, ch. 968, § 25), defines "legislative body" to mean also "any board, commission, committee, or similar multi- member body which exercises any authority of a legislative body delegated to it by that legislative body." As will be developed at length, post, the legislative bodies of both the City of Oakland and the County of Alameda may be said to have delegated some of their powers to operate a Coliseum complex to the Oakland-Alameda Coliseum, Inc., and hence to its board of directors as its governing board. We focus first upon section 54951.7. It has been urged that this section should govern our issue since it is the special provision of the Ralph M. Brown Act which specifies and hence governs which nonprofit corporations formed to construct or acquire and operate public works projects fall within the requirements of the act. This follows by application of the rule of construction that a special statute governs a more general statute which also would encompass the same subject matter, whether enacted before or after the more general statute. (See, e.g., Bailey v. Superior Court (1977) 19 Cal. 3d 970, 977, fn. 8.) Accordingly, or so goes the argument, since the Oakland- Alameda Coliseum, Inc. does not fit the criteria set forth in section 54951.7, the Legislature intended to exclude it and similar nonprofit corporations from the requirements of the act.8 We, however, decline to follow this argument for the reason that this rule of construction, that the special provision controls the more general provision (no matter which was first enacted), requires that the two statutes be inconsistent or in conflict. (See, e.g., People v. Garcia (1986) 178 Cal. App. 3d 887, 894; Code Civ. Proc. 1859). It is readily seen that there is no conflict between the language of sections 54951.7 and 54952.2. The former merely sets forth criteria for including certain nonprofit corporations within the scope of the Ralph M. Brown Act. The latter provision merely provides that certain multi-member bodies will be considered "legislative bodies." Section 54952.2 is coincidentally broad enough to include those nonprofit corporations included within the scope of 54951.7 which have been delegated powers of "legislative "Except to the extent that the By-Laws may provide that any vacancy created by the resignation or removal or a director elected by the members may be filled by the vote of the members, if the office of any director becomes vacant, the remaining directors in office, by a majority vote, may appoint any qualified person to fill such vacancy. . . ." 8 This argument also brings into play the rule of construction that "the expression of certain things in a statute necessarily involves exclusion of other things not expressed." (Henderson v. Mann Theaters Corp. (1976) 65 Cal. App. 3d 397, 403.) 8 86-502 bodies." In short, there is no conflict between these sections. There is at most an overlap in these statutory provisions. Having rejected the applicability of section 54951.7 to resolve the issue herein, we now proceed to section 54952.2, the 1981 enactment. It is clear that both the City of Oakland and the County of Alameda would themselves have the power to operate the Coliseum complex. (See Gov. Code, § 25351 et seq.; City of Oakland v. Oakland Raiders (1982) 32 Cal. 3d 60, 71.)9 As will be recalled, the Oakland-Alameda Coliseum, Inc. was initially formed to acquire the necessary real property for and to construct and operate the Coliseum complex in the City of Oakland. The master agreement between the corporation and the city and county contained a "sub-agreement", that is, the "operating agreement". Under the latter agreement the corporation agreed to operate in the status of independent contractor all the Coliseum facilities (which the corporation had initially conveyed to the city and county, and ultimately had leased back to them). The operating agreement required and requires the corporation to pay the net income from such operation to the city and county. It also permitted and permits the corporation to adopt an annual budget, establish rules, regulations, rates and charges for the operation of the Coliseum complex to the corporation, and hence to its board of directors. This "operating agreement" parallels the operating agreement discussed in County of Los Angeles v. Nesvig, supra, 231 Cal. App. 2d 603 with respect to the County Music Center. In that case the County of Los Angeles, also through the aegis of a nonprofit corporation and a lease and lease-back, provided for the construction of the Music Center. In that case, the county also provided that this nonprofit corporation should operate the Music Center under an "operating agreement" for 40 years. Noting that a public body may not delegate its powers of control over public affairs, the court nonetheless held that the operating agreement was a lawful delegation of county functions stating: "Clearly, the operation and management of places of public assembly is an administrative function which may be delegated . . . the issue in each case of delegation is whether ultimate control over matters involving the exercise of judgment and discretion has been retained by the public entity . . . 9 Since the Coliseum complex was completed many years ago, we need not concern ourselves herein with respect to any delegation by the city and the county to acquire and construct such a complex. 9 86-502 ". . . In Haggerty [Haggerty v. City of Oakland, 161 Cal. App. 2d 407] . . . the lease of a convention hall and banquet building by the City of Oakland for operation by a private party was found to be a valid exercise of city power under proper controls, since under the lease the city retained the right to control the use of the premises for convention or banquet purposes and to control prices, charges, subleases, and practices of the lessee." (Id., at p. 617.) Accordingly, the board of directors of the corporation, as its governing body, have been delegated powers of the city and county to operate the Coliseum complex. Therefore, the status of the corporation and its board of directors is to be determined by section 54952.2, as added to the Ralph M. Brown Act in 1981, and not by inferences to be drawn from section 54951.7, the section added in 1970 relating specifically to nonprofit corporations formed to construct or operate public works projects. In so concluding, we would point out that a body which has been delegated powers of a "legislative body" of a local agency pursuant to section 54952.2 will itself be a "legislative body" for purposes of the Ralph M. Brown Act only when meeting with respect to the exercise of those delegated powers. Such a delegation may be narrow or may be virtually all encompassing. We appear to be dealing with the latter form of delegation herein. Conceivably, the Board of Directors of the Oakland-Alameda Coliseum, Inc. could meet for the sole purpose of discussing matters which do not fall within the scope of any delegation from the city or the county, for example, a discussion of purely corporate matters unrelated to the operation of the Coliseum complex. However, as a general proposition, it would seem that their meetings of necessity would normally relate to their delegated powers. Accordingly, we conclude that the meetings of the Board of Directors of the Oakland-Alameda Coliseum, Inc. are subject to the open meeting requirements of the Ralph M. Brown Act. ***** 10 86-502

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TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General : OPINION : No. 86-1003 : of : March 11, 1987 : JOHN K. VAN DE KAMP : Attorney General : : RODNEY O. LILYQUIST : Deputy Attorney General : : THE HONORABLE H. L. RICHARDSON, MEMBER, CALIFORNIA STATE SENATE, has requested an opinion on the following question: May a school board member vote upon a proposed program or contract submitted to the board by an organization of which the member is the salaried executive director? CONCLUSION A school board member may not vote upon, participate in considering, or attempt to influence action taken upon a proposed program or contract submitted to the board by an organization of which the member is the salaried executive director except in limited circumstances. With respect to a contract proposal, the board would generally be prohibited from entering into the contract. 1 ANALYSIS An organization proposes to a school district board that a program or contract be approved involving the schools and pupils of the district. One of the board members is the salaried executive director of the organization. May the member vote on the proposal without violating the various conflict of interest laws of California? We conclude that the member would generally be prohibited from voting on such a proposal. 1. The Political Reform Act of 1974 The Political Reform Act of 1974 (Gov. Code, §§ 81000-91015; "Act")1 has as one of its goals that "[p]ublic officials, whether elected or appointed should perform their duties in an impartial manner, free from bias caused by their own financial interests...." (§ 81001, subd. (b).) Accordingly, the Act provides that "inappropriate circumstances the officials should be disqualified from acting in order that conflicts of interest may be avoided." (§ 81002, subd. (c); see Witt v. Morrow (1977)70 Cal. App. 3d 817, 822-823.) The Act covers both state and local officials (§§81001, 2003, 87100), including school board members (69 Ops. Cal. Atty. Gen.102, 103, fn. 1 (1986)). Section 87100 contains the basic prohibition of the Act dealing with conflicts of interest: "No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest." Several exceptions to section 87100 allow a public official to make a governmental decision in which he has a financial interest. Section 87103, for example, expressly limits the definition of "financial interest," while section 87101 allows participation where the official's "participation is legally required for the action or decision to be made." Extensive regulations have been promulgated by the Fair Political Practices Commission ("Commission") with respect to potential conflicts of interest. (See §§ 83111-83112; Cal. Admin. Code, tit. 2, 18700-18702.2; 66 Ops. Cal. Atty. Gen.156, 162, fn. 6 (1983).) The Commission also provides written advice and issues opinions which may be relied upon by public officials. (§ 83114; 67 Ops. Cal. Atty. Gen. 369, 374 (1984).) 1 All references hereafter to the Government Code are by section number only. 2 While we have not been given a set of facts to consider with respect to the proposed program or contract, the case of Witt v. Morrow, supra, 70 Cal. App. 3d 817, appears instructive concerning the general approach to be taken regarding the application of section 87100. In Witt, a member of a redevelopment agency was the salaried president and attorney of a nonprofit organization. The organization was the beneficiary of a trust that held title to property near a proposed redevelopment project. The court analyzed the possible conflict of interest as follows: "Morrow argues there is no conflict of interest here because there is no evidence his activities as president and attorney of BEE and his receipt of $550 per month would be affected in any way by any decision on this project. His concept of what constitutes a conflict of interest is too narrow. It is not just actual improprieties which the law seeks to forestall but also the appearance of possible improprieties. Any employee, in the private or public sector, wishes to keep his job and maintain good relations with his employer. A person who must make decisions which may affect his employer's purse is in a situation where he may not give full consideration to the merits of the decision." (Id., at p. 823.) Similarly, we believe that a school board member may not generally vote upon, participate in considering, or attempt to influence action taken upon a proposed program or contract submitted to the board by an organization of which the member is the salaried executive director. Limited exceptions to the prohibition of section 87100 may apply, and the Commission is available to provide advice on a case- by-case basis. 2. The Board's Own Code The Act authorizes "the Legislature or any other state or local agency" to impose" additional requirements on any person if the requirements do not prevent the person from complying with" the Act's provisions. (§ 81013; see § 87102; 67 Ops. Cal. Atty. Gen. 369, supra, 375, fn. 5.) Section 87300 expressly requires public agencies to" adopt and promulgate a Conflict of Interest Code,” which has “the force of law." (See 67 Ops. Cal. Atty. Gen. 369, supra, 374.) Accordingly, the school board's own conflict of interest code may prohibit a member from voting on a proposed program or contract that would otherwise be permissible under the Act's provisions. (See § 87302, subd. (c).) Such code would require examination in light of the particular circumstances involved. 3 3. The Common Law Doctrine The prohibition against a public officer having a conflict of interest in the performance of public duties has long been recognized in common law. The common law doctrine "strictly requires public officers to avoid placing themselves in a position in which personal interest may come into conflict with their duty to the public." (46 Ops. Cal. Atty. Gen. 74, 86 (1965).) While this doctrine is subject to being abrogated by express statutory provisions, we have previously concluded that it is applicable where no statutory conflict exists. (67 Ops. Cal. Atty. Gen. 369, supra, 381; 59 Ops. Cal. Atty. Gen. 604, 613-614 (1976); 58 Ops. Cal. Atty. Gen. 345, 354-356 (1975).) Exceptions to the common law doctrine exist, such as the rule of necessity (see 67 Ops. Cal. Atty. Gen. 369, supra 381), and the doctrine "may usually be avoided by complete abstention from any official action with respect to or attempt to influence the transaction" (64 Ops. Cal. Atty. Gen. 795, 797 (1981)). Whether the common law prohibition would prevent the school board member from voting on a proposed program or contract, otherwise permissible under the Act and the Board's own code, would depend upon the particular facts presented. 4. Section 1090 Since the proposal to the school board may concern a contract, the provisions of section 1090 require examination. (See People v. Watson (1971) 15 Cal. App. 3d 28, 34, fn. 1; People v. Darby (1952) 114 Cal. App. 2d 412, 428; 67 Ops. Cal. Atty. Gen. 369, supra, 375; 64 Ops. Cal. Atty. Gen. 369, supra, 375; 64 Ops. Cal. Atty. Gen. 795, supra, 797, fn. 2; 26 Ops. Cal. Atty. Gen. 287, 288-289 (1955); Widiss, The California Conflict of Interest Laws (1963) 36 So. Cal. L. Rev. 186, 198-199; Kennedy & Beck, Interest of Public Officers in Contracts Prohibited by Law (1955) 28 So. Cal. L. Rev. 335, 345; Comment, Conflict of Interest in Public Contracts in California (1956) 44 Cal. L. Rev. 355, 360-361.)2 Section 1090 states in part: "Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they 2 School board members are expressly covered by the provisions of section 1090. (Ed. Code. § 35233.) 4 are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity."3 Significantly, when section 1090 is applicable to one member of a board or commission, the proscription cannot be avoided by having the interested member abstain; the entire board or commission is precluded from entering into the contract.(Thomson v. Call (1985) 38 Cal. 3d 633, 649; Stigall v. City of Taft, supra, 58 Cal. 2d 565, 570-571; City of Imperial Beach v. Bailey, supra, 103 Cal. App. 3d 191,195.) The Legislature has provided several exceptions to the prohibition of section1090. In section 1091.5 are described nine situations where the "officer or employee shall not be deemed to be interested in a contract." (See Citizen Advocates, Inc. v. Board of Supervisors (1983) 146 Cal. App. 3d 171, 178-179; Frazer-Yamor Agency, Inc. v. Del Norte County (1977) 68 Cal. App. 3d 201, 217-218.) In section 1091 the Legislature has described ten situations where a "remote interest" will be found, allowing the board or commission to enter into a contract" without counting the vote or votes of the officer or member with the remote interest."(See 67 Ops. Cal. Atty. Gen. 369, supra, 377, fn. 8; 65 Ops. Cal. Atty. Gen. 305, 307 (1982).) For this exception to apply, the existence of the interest must be" disclosed to the body of the board of which the officer is a member and noted in its official records." (§ 1091, subd. (a).) Finally, we note the "rule of necessity" exception to section 1090. This rule allows a governmental agency to acquire an essential supply or service despite the conflict of interest; it allows the interested official to act where he is the only one who may do so. Similarly the board may act with the interested member abstaining in such a situation. (See Caminetti v. Pac. Mutual L. Ins. Co. (1943) 22 Cal. 2d 344, 366-367; 69 Ops. Cal. Atty. Gen. 102, supra, 108-109; 67 Ops. Cal. Atty. Gen.369, supra, 378; 65 Ops. Cal. Atty. Gen. 305, supra, 310).) As with the other conflict of interest prohibitions, whether section 1090 would be applicable in a particular situation would depend upon all the facts and circumstances. 3 While the statute refers to a contract being "made," the term has been expansively interpreted by the courts to cover "such embodiments in the making of a contract as preliminary discussions, negotiations, compromises, reasoning, planning, drawing of plans and specifications and solicitation forbids." (Millbrae Aim, for Residential Survival v. City of Millbrae (1968) 262 Cal. App. 2d 222, 237; see Stigall v. City of Taft (1962) 58 Cal. 2d 565, 571; City Council of Imperial Beach v. Bailey (1980)103 Cal. App. 3d 191, 196; People v. Vallerga (1977) 67 Cal. App. 3d 847, 868; People v. Sobel(1974) 40 Cal. App. 3d 1046, 1052.) 5 In answer to the question presented, therefore, we conclude that a school board member may not vote upon, participate in considering, or attempt to influence action taken upon a proposed program or contract submitted to the board by an organization of which the member is the salaried executive director except in limited circumstances. With respect to a contract proposal, the board would be prohibited from entering into the contract unless the situation falls within the exceptions enumerated in section 1091.5 or the "rule of necessity." 6

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OFFICE OF THE ATTORNEYGENERAL OF T’EXAS AUSTIi4 ’ss 366  :’ : ,. .s, 36

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ATTORNEYGENERAL OF TEXAS GREG ABBOTT April 20,2005 The Honorable Bill Hill Opinion No. GA-03 17 Dallas County District Attorney Administration Building Re: Whether section 6.025(d) of the Tax Code 411 Elm Street, Suite 500 violates article VIII, sections 1(a), (b) and 1S(c) of Dallas, Texas 75202-3384 the Texas Constitution (RQ-0285-GA) Dear Mr. Hill: In some cases, property subject to ad valorem taxation will lie in two or more appraisal districts and will be subject to multiple tax appraisals. If after appraising a property in overlapping appraisal districts the chief appraisers disagree as to the appraised or market value of the property, section 6.025(d) of the Tax Code requires the chief appraisers to enter into their districts’ appraisal records the lowest appraised and market values from all the values determined by each appraisal district. See TEX. TAX CODEANN.~$ 6.025(d) (Vernon Supp. 2004-05). You ask whether section 6.025(d) violates three provisions of article VIII of the Texas Constitution: section l(a), which requires that taxes be~“e,qual and uniform”; section l(b), which requires that all property be “taxed in proportion to its value”; and section 18(c), which requires the legislature to “provide for a single board of equalization for each appraisal entity consisting of qualified persons residing within the territory appraised by that entity.” See TEX. CONST.art. VIII, 55 l(a)-(b), 1S(c).’ I. Legal Background Before addressing your constitutional questions, we briefly review the legal framework for appraising property for ad valorem taxation. A. Property Appraisals Article VIII, section 1(b) of the Texas Constitution provides that “[a]11real property and tangible personal property in this State shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.” Id. 5 l(b). Courts have long held that the constitution “requires ‘value’ for ad valorem tax purposes to be based on the reasonable market value of the property.” Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931,935 (Tex. 1996); Whelan v. ‘See Letter from Honorable Bill Hill, Dallas County District Attorney, to Honorable Greg Abbott, Texas Attorney General, at 2-3 (Oct. 22,2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafterRequest Letter]. The Honorable Bill Hill - Page 2 (GA-0317) State,282 S.W,2d378,380(Tex. 1955). TheTax Codedefines “market ~~~~~,“~~~TEx.TAxCODE ANN. 5 1.04(7) (Vernon 2001),* and generally requires that “all taxable property is appraised at its market value as of January 1,” id. $ 23,01(a). The Tax Code also establishes several appraisal methods for determining market value. See id. 5 23.0101 (“In determining the market value of property, the chief appraiser shall consider the cost, income, and market data comparison methods of appraisal and use the most appropriate method.“); see also id. $5 23.01 l-.9807 (Vernon 2001 & Supp. 2004-05) (governing specific appraisal methods). The Tax Code also uses the term “appraised value,” and, in some cases, a property’s appraised value may differ from its market value. See generally Tex. Att’y Gen. Op. No. GA-0283 (2004).3 The constitution also provides for tax appraisal administration at the local level. Article VIII, section 18 provides in pertinent part: (b) A single appraisal within each county of all property subject to ad valorem taxation by the county and all other taxing units located therein shall be provided by general law. The Legislature, by general law, may authorize appraisals outside a county when political subdivisions are situated in more than one county or when two or more counties elect to consolidate appraisal services. (c) The Legislature, by general law, shall provide for a single board of equalization for each appraisal entity consisting of qualified persons residing within the territory appraised by that entity. Members of the board of equalization may not be elected officials of the county or of the governing body of a taxing unit. ‘Section I .04(7) of the Tax Code defines “market value”as “the price at which a property would transfer for cash or its equivalent under prevailing market conditions if: (A) exposed for sale in the open market with a reasonable time for the seller to fmd a purchaser; (B) both the seller and the purchaser know of all the uses and purposes to which the property is adapted and for which it is capable of being used and of the enforceable restrictions on its use; and (C) both the seller and purchaser seek to maximizetheir gains and neither is in a position to take advantage of the exigencies ofthe other.” TEX.TAXCODEANN.5 1.04(7)(Vernon 2001). ‘For example, under section 23.23(a) of the Tax Code, a residence homestead’s appraised value %ay not exceed the lesser of” (1) the property’s market value, OI(2) the sum of: (A) 10 percent of the appraisedvalue of the property for the last year in which the property was appraised for taxation times the number ofyears since the property was last appraised; (B) the appraised value of the property for the last year in which the property was appraised, and (C) the market value of all new improvements to the property. Id. 5 23.23(a) (Vernon Supp. 2004-05), The Honorable Bill Hill - Page 3 (GA-0317) (d) The Legislature shall prescribe by general law the methods, timing, and administrative process for implementing the requirements of this section. TEX. CONST. art. VIII, 5 18. The legislature has fulfilled its duty under article VIII, section 18(b) to provide for a single tax appraisal of property by enacting the Property Tax Code, chapters 1 through 43 of the Tax Code. See Wilson v. Galveston County Cent. Appraisal Dist., 713 S.W.2d 98, 101 (Tex. 1986). The Property Tax Code provides for appraisal districts in each county and charges these districts with appraising property within the district. See id. Each appraisal district is administered by a chief appraiser. See TEX. TAX CODEANN. 5 6.05 (Vernon 2001). The purpose of each district is to place a single value on each piece of taxed property located within the district. See TEX. CONST. art.VIII, 3 18(b). Under the Tax Code, each taxing unit participating in an appraisal district taxes property according to the value determined by the appraisal district. See TEX. TAX CODE ANN. 3 6.01 (Vernon 2001). The legislature has fulfilled its duty under article VIII, section 18(c) to “provide for a single board of equalization for each appraisal entity,” TEX. CONST. art. VIII, 5 18(c), by providing for an appraisal review board for each appraisal district. See TEX. TAX CODEANN. § 6.41 (Vernon Supp. 2004-05). Appraisal review boards determine, among other matters, property valuation protests initiated bypropertyowners and challenges initiated by taxing units. See id. 5 41 .Ol (Vernon 2001). With respect to appraisals, a taxing unit is entitled to challenge “the level of appraisals of any category of property in the district or in any territory in the district, but not the appraised value of a single taxpayer’s property.” Id. 5 41.03(a)(l). B. Overlapping Appraisal Districts and Multiple Property Appraisals Under section 6.02 of the Tax Code, an appraisal district’s boundaries are generally the same as the county’s boundaries. See id. 5 6.02(a). However, a taxing unit that has boundaries extending into two or more counties may choose to participate in only one of the appraisal districts, and, in that event, the boundaries of the district chosen extend outside the county to the extent ofthe unit’s boundaries. See id. 5 6.02(b). This is consistent with article VIII, section 18, which expressly permits the legislature to authorize an appraisal district to appraise property outside the county in these circumstances. See TEX. CONST. art. VIII, 3 18(b) (“The Legislature, by general law, may authorize appraisals outside a county when political subdivisions are situated in more than one county or when two or more counties elect to consolidate appraisal services.“). Because an appraisal district’s boundaries may extend outside the county into other counties, property may lie in two or more overlapping appraisal districts and, in such a case, would be appraised by each district. Each appraisal district is required to appraise property at its market value pursuant to appraisal methods authorized by the Tax Code, and, in theory, appraisal districts appraising the same property should arrive at the same values. Sometimes this is not the case, however. The reasons for this vary. As this office recently explained, “‘property appraisal is an inexact process.“’ Tex. Att’y The Honorable Bill Hill - Page 4 (GA-0317) Gen. Op. No. GA-0283 (2004) at 2 (citation omitted). The Tax Code itselfmay also lead to different valuations because each appraisal district with jurisdiction over a particular piece of property may calculate the property’s appraised value using different methods. See TEX. TAX CODE ANN. § 23.0101 (Vernon 2002) (directing a chief appraiser to consider alternate appraisal methods). Furthermore, overlapping appraisal districts may use different appraisal cycles so that one district may reappraise property every two years, while another district reappraises property every three years. See [id.] 4 25.18(a)-(b) (requiring each appraisal office to implement a plan to reappraise property at least once every three years). Id. at 2-3. Section 6.025 of the Tax Code, the provision at issue in your query, governs the duty of chief appraisers of overlapping appraisal districts with respect to the property located in the territory in which each of the districts has appraisal jurisdiction. It requires chief appraisers of overlapping appraisal districts to enter into a written understanding that: (1) permits each appraiser to have access to and use information appropriate to appraisals, including a record of an exemption application, rendition, or other property owner report; (2) eliminates differences in the information in appraisal records of the districts, including information relating to ownership of property, the description ofproperty, and the physical characteristics of property; and (3) contains the form of a written advisory prescribed by the comptroller informing the owners of property that reports and other documents required of the owners must be filed with or sent to each appraisal district and that the owners should consider sending any other document relating to the property to each appraisal district. TEX. TAX CODE ANN. $ 6.025(a) (Vernon Supp. 2004-05). Section 6.025(c) requires the chief appraisers of overlapping appraisal districts “to the extent practicable [to] coordinate their appraisal activities so as to encourage and facilitate the appraisal of the same property appraised by each district at the same value.” Id. 5 6.025(c). Your query focuses on section 6.025(d), which governs the appraised and market value of property in overlapping appraisal districts in the event the chief appraisers are not able to agree on the same values: The Honorable Bill Hill - Page 5 (GA-0317) If on May 1 all the chief appraisers of the appraisal districts described by Subsection (a) in which a parcel or item of property is located are not in agreement as to the appraised or market value ofthe property, on that date each of the chief appraisers shall enter as the appraised or market value of the property on the appraisal records of the appropriate appraisal district the lowest appraised or market value of the property as determined by any of the chief appraisers. If as a result of a protest, appeal, or other action the appraised or market value of the property is subsequently reduced in any of the appraisal districts, the chief appraiser shall notify each of the appraisal districts of the reduced appraised or market value. The chief appraiser of each appraisal district shall enter that reduced appraised or market value on the appraisal records as the appraised or market value of the property. If the appraised or market value is reduced in more than one appraisal district, each chief appraiser shall enter the lowest of those values on the appraisal records. Id. $6.025(d). This provision requires chief appraisers with overlapping jurisdictions to enter the lowest appraised and market value for a property (1) on May 1, and (2) thereafter if the property’s appraised or market value is reduced “as a result of a protest, appeal, or other action.” Id.; see also Tex. Att’y Gen. Op. No. GA-0283 (2004) at 7-8 (concluding that section 6.025(d) of the Tax Code requires the chief appraiser of each of the overlapping districts to enter in the appraisal records the lowest values, appraised and market, listed by any of the overlapping districts)! II. Analysis You ask about Tax Code section 6.025(d)% constitutionality under article VIII, sections l(a), (b) and 18(c). See Request Letter, supra note 1, at 2-3. In considering a tax appraisal statute’s constitutionality, the Texas Supreme Court has applied the following presumptions: [W]e begin with a presumption that it is constitutional. HL Furm Corp. v. Se& 877 S.W.2d 288, 290 (Tex. 1994); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 558 (Tex. 1985). Courts presume that the Legislature “‘understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.“’ Smith Y. Davis, 426 S.W.2d 827, 83 1 (Tex. 1968) (quoting Texas Nat ‘1GuardArmory Bd. v. McCruw, 126 S.W.2d 627,634 (Tex. 1939)). The wisdom or expediency of a law is for the Legislature to determine, not this Court. Smith, 426 S.W.2d at 831. 4AttomeyGeneral Opinion GA-0283noted but did not resolve the constitutional issues raised by this request. See Tex. Att’y Gen. Op. No. GA-0283 (2004) at 4 1x2. The Honorable Bill Hill - Page 6 (GA-03 17) Enron Corp., 922 S.W.2d at 934. Accordingly, we apply the same presumptions inconsidering your questions about section 6.025(d) of the Tax Code. We also keep in mind the legislature’s authority under article VIII of the constitution to adopt appraisal methods to ascertain value and to establish the appraisal and appraisal equalization system. See TEX. CONST. art. VIII, 35 l(b) (“All real property and tangible personal property in this State shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.“) (emphasis added), 18(b) (“A single appraisal within each county of all property subject to ad valorem taxation by the county and all other taxing units located therein shall be provided by general law.“) (emphasis added), (c) (“The Legislature, by general Inw, shall provide for a single board of equalization for each appraisal entity . “) (emphasis added), (d) (“The Legislature shallprescribe by general law the methods, timing, and administrative process for implementing the requirements of this section.“) (emphasis added). A. Article VIII, Section l(a)-(b): Value and Equality and Uniformity Your first concern is that section 6.025(d) violates the article VIII, section l(b) requirement that property be taxed in proportion to its value. See TEX. CONST. art. VIII, 8 l(b). You point out that value in this sense means market value and that the Tax Code and case law recognize a limited number of methods to determine market value. See Request Letter, supra note 1, at 2; see alsoNootsieLtd. v. Williamson CountyAppraisalDist., 925 S.W.2d659,661 (Tex. 1996); TEX.TAX CODE ANN. $5 23.0101-.9807 (Vernon 2001 & Supp. 2004-05) (appraisal methods). You argue, in essence, that section 6.025(d) requires a chief appraiser to appraise a property at a value other than its market value: Section 6.025(d) requires the selection of the lowest value determine[d] in different markets, with different sets ofcomparables. Dallas County believes that automatic application ofthe lowest value to a property merely because it falls within overlapping districts does not establish value based on market value. Request Letter, supra note 1, at 2. This contention ignores the fact that the second appraisal district is also required by statute to appraise the property at market value using an authorized method. We must assume as a general matter that appraisal districts appraisepropertypursuant to the Tax Code, arriving at legally permissible values. Moreover, article VIIl, section 1 permits “[a] reasonable discrepancy between the actual value of the property and the value at which it is assessed for taxes . to allow for a difference in judgment.” Enron Corp., 922 S.W.2d at 935. “A statute is not facially invalid unless it could not be constitutional under any circumstances.” AppraisalReview Bd. of Galveston Countyv. Tex-AirHelicopters, Inc., 970 S.W.2d 530, 534 (Tex. 1998). We cannot conclude that all valuations mandated by section 6.025(d) will offend article VIII, section l(b). In some instances the appraisal district with the lowest value will have determined that value according to methods permitted by the Tax Code, arriving at a value that reasonably reflects the property’s actual market value. Requiring another appraisal district to use such a value does not violate the constitutional requirement that property be taxed in proportion to The Honorable Bill Hill - Page 7 (GA-0317) its value. Because section 6.025(d) valuations will be constitutional in some circumstances, we cannot conclude that section 6.025(d) on its face violates article VIII, section l(b). See id. Second, you ask whether section 6.025(d) violates article VIII, section I(a), which requires that “[tlaxation shall be equal and uniform.” TEX. CONST. art. VIII, 5 l(a). The Texas Supreme Court has “long recognized that exact uniformity and equality is unattainable,” Enron Corp., 922 S.W.2d at 935, and that “the Legislature may constitutionally draw distinctions in the manner in which market value of property is determined for ad valorem tax purposes,” id. at 936. Such classifications will comport with article VIII, section l(a), “as long as the classifications are not unreasonable, arbitrary, or capricious.” Id. An ad valorem tax classification with a “‘plausible policy reason”’ will pass constitutional muster. Id. at 937 (quoting Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (addressing the validity of tax classifications under the Equal Protection Clause)). However, your letter asserts that any classification created by section 6.025(d) that distinguishes between the valuation of property based on whether it is appraised by overlapping appraisal districts is “clearly. arbitrary.” See Request Letter, supra note 1, at 3. As we have noted, article VIII, section 18 permits the legislature, by general law, to authorize appraisals outside a county “when political subdivisions are situated in more than one county.” TEX. CONST. art. VIII, 5 18(b). As a result of the constitutionally authorized system of overlapping appraisal districts, a property may be subject to two or more appraisals. The legislature is clearly authorized to adopt laws governing overlapping appraisal districts’ authority with respect to such property. See id. § 1S(b), (d). In subsections (a) through (c) of section 6.025, the legislature has required overlapping appraisal districts to cooperate in order to appraise properties in their overlappingjurisdictions at the same values. See TEX. TAX CODEANN. 5 6.025(a)-(c) (Vernon Supp. 2004-05). The legislative history suggests that the legislature adopted section 6.025(d) to further encourage appraisal districts to arrive at the same values by requiring them to record the lower values in the event they are unable to agree on common values. See HOUSECOMM. ON LOCAL GOV’T WAYS &MEANS, BILL ANALYSIS, Tex. H.B. 703,78th Leg., R.S. (2003); SENATE COMM. ON FINANCE, BILL ANALYSIS, Tex. H.B. 703,78th Leg., R.S. (2003). We believe that a court would conclude that any distinction section 6.025(d) draws between the valuation of property based on whether the property is appraised by overlapping appraisal districts is based on a plausible policy reason-to avoid varying valuations in overlapping appraisal districts. See Enron Corp., 922 S.W.2d at 936-37. Given the legislature’s authority to regulate overlapping appraisals and the reasonableness of its goal to achieve uniform appraisals in overlapping appraisal districts, we cannot conclude that section 6.025(d) imposes aclassificationthat is unreasonable, arbitrary, or capricious as a matter of law. However, we have received a number of briefs from appraisal districts arguing that section 6.025(d) may be unconstitutional as applied to particular fact situations.’ As these briefs point out, SSeeBrieffromRoyL.Armstrong, McCreary,Veselka,Bragg&Allen,P.C.,onbehalfoftheCentralAppraisal Districtof Taylor County,to HonorableGregAbbott,TexasAttorneyGeneral,at 2-3,6 (Nov. 30,2004) [hereinafter (continued...) The Honorable Bill Hill - Page 8 (GA-0317) in some instances the lower market or appraised value may be significantly below the property’s actual market value. For example, an appraisal district must reappraise a property at least once every three years. S~~TEX.TAXCODEANN. $25,18(a)-(b) (Vemon2001). Valuationsmaydifferbecause appraisal districts are on different reappraisal cycles. The appraisal district with the higher value for a property may have just reappraised the property in a period of rising property values whereas the appraisal district with the lower value has not done so for two years. In that case, the lower value may be drastically below the current market value. Moreover, in some such instances, the section 6.025(d) requirement that the first appraisal district use the other district’s values for property in the overlapping area may cause the property values in that area to be so much lower than property values in the rest ofthe first appraisal district that taxation by taxing units in that district will not satisfy the equal and uniform requirement. See Harris County Appraisal Dist. v. UnitedInvestors Realty Trust, 47 S.W.3d 648, 654 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (“[IIt is unfair, and constitutionally prohibited, to require one taxpayer to pay a tax based on market values if other taxpayers are paying a rate that is lower than the market value of their properties. If we were to allow this, one landowner would be paying property taxes disproportionately to other landowners. The constitution expressly prohibits this.“). Although requiring uniform appraisals in overlapping appraisal districts may be a reasonable legislative policy as a general matter, in some cases requiring uniform appraisals may offend article VITI, section l(a) and (b).” A court could determine in a particular case that a property value required by section 6.025(d) fails to appraise the property at its market value and causes a taxing unit to levy a tax that is not ‘(...continued) TCAD Brief]; Brief from Mike M. Tabor, Shannon, Gracey, Ratliff & Miller, L.L.P., on behalf of the Dallas Central Appraisal District, to HonorableGreg Abbott, Texas Attorney General,at 3-6 (Nov. 1I, 2004); Letter frcnnFoyMitchel1 Jr., ExecutiveDirectoriChiefAppraiser,DallasCentralAppraisalDistricf toNancy S. Fuller, Chair, OpinionCommittee, Oftke ofAttorneyGenera1,at 2-3 (Nov. 17,2004) [hereinaikr DCADLetter]; Brief from Robert Mott, Perdue, Brandon, Fielder, Collins & Mott, L.L.P., on behalf of the Bexar CountyAppraisal District and the Williamson County Appraisal District, to Honorable Greg Abbott, Texas Attorney General, at 2 (Dec. 6, 2004) [hereinafter BWCAD Brief] (all correspondence on tile with Opinion Committee). 6We have received a brief that suggests that article VIII, section l(a) requires appraisals by overlapping appraisal districts to be “equal and uniform.” Brief from HonorableBurt R. Solomons, Chair, Committee on Financial Institutions, Texas House of Representatives,to Honorable Greg Abbott, Texas Attorney General, at 4 (Dec. 17,2004) (on file with Opinion Committee) (“it is unequal and inconsistent to have a single property assessed differentlyby two different taxing agents”). However,cases construing article VIII, section 1(a) hold that it applies to property valuations and taxation of properties within the same territory, taxing unit, or district. See Tex. Pipe Line Co. v. Anderson, 100 S.W.2d 754,761 (Tex. Civ. App.-Austin 1937, writ r&d) (“It is also the settled rule that in determining the question of discrimination because of inequality of valuation or assessment of property for taxation purposes, the inquiry is necessarily limited to the particular taxing district or county in which the properties involved are situated.“);see also Springlndep. Sch. Dia. v. Harris CouniyAppraisalDist., 889 S.W.Zd562,565 (Tex. App.-Houston [14thDist.] 1994), rev’d on other grounds, Enron Corp. v. Spring Indep. Sch. D&t., 922 S.W.Zd93 1(1996) (“Texas courts have held that taxation is ‘equal and uniform’ when no person OTclass of persons in the same territory is taxed at a higher rate than other persons on the same property in the same district.“) (emphasis added); City ofArlington v. Cannon, 263 S.W.2d 299,304-05 (Tex. Civ. App.-Fort Worth 1954), af’d inpart, rev’d inpart, 271 S.W.2d 414 (1954); Weatherly Indep. Sch. Dist. v. Hughes, 41 S.W.2d 445, 447 (Tex. Civ. App.-Amarillo 1931, no writ). We are not aware of any case holding that article VIII, section l(a) requires uniformity or equalitybetween overlapping appraisal districts’appraisals of property within their overlappingjurisdictions. The Honorable Bill Hill - Page 9 (GA-0317) equal and uniform. This will depend upon facts in the record in each case. The party challenging section 6.025(d)‘s constitutionality would bear the burden of demonstrating that it fails to meet the constitutional requirements. See Enron Corp., 922 S.W.2d at 934. This office, which cannot find facts, cannot make such a determination. See Tex. Att’y Gen. Op. No. GA-0106 (2003) at 7 (“[tlhis office cannot find facts or resolve fact questions in an attorney general opinion”). In sum, this office cannot conclude that, as a matter of law, section 6.025(d) violates article VIII, section 1(a) and (b). B. Article VIII, Section 18(c) You also ask whether section 6.025(d) violates article VIII, section 18(c), which requires the legislature to “provide for a single board of equalization for each appraisal entity consisting of qualified persons residing within the territory appraised by that entity.” TEX. CONST. art. VIII, $ 18(c). As we have noted, section 6.41 of the Tax Code establishes an appraisal review board for each appraisal district and requires that a member of an appraisal review board must be a resident ofthe district, seeTEX. TAX CODEANN. 5 6.41(a)-@) (Vernon Supp. 2004.05), and chapter 41 of the Tax Code establishes an appraisal review board’s duties with respect to the district’s appraisals, see, e.g., id. $3 41.03-.07 (Vernon 2001) (taxing unit challenges), 41.41-.47 (Vernon 2001 & Supp. 2004-05) (taxpayer protests). As you state your concern, [slection 6.025(d) requires that an appraisal review board (board of equalization) for an individual overlapping appraisal district setting the lowest value establish[] values for other overlapping districts where members of the appraisal review board do not reside. Thus the constitutionally mandated residency requirement is not satisfied. Request Letter, supra note 1, at 3. It is true that when the appraised or market value of a property in overlapping appraisal districts is reduced as the result of the action of one appraisal review board, section 6.025(d) requires all the chief appraisers to enter that value in their appraisal records. See TEX. TAX CODE ANN. 5 6.025(d) (Vernon Supp. 2004-05) (“If as a result of a protest, appeal, or other action the appraised or market value of the property is subsequently reduced in any of the appraisal districts, the chief appraiser shall notify each of the appraisal districts of the reduced appraised or market value. The chief appraiser of each appraisal district shall enter that reduced appraised or market value on the appraisal records as the appraised or market value of the property.“). However, the appraisal review board that has reduced the property’s valuation will be the appraisal review board for an appraisal district in which the property lies. Thus, it is not the case that the property’s value will be established by appraisal review board members who are not residents of an appraisal district in which the property is located. More generally, section 6.025(d) does not alter the section 6.41 requirement that a member of an appraisal review board must be a resident of the appraisal district. Nor does it authorize an The Honorable Bill Hill - Page 10 (GA-0317) appraisal review board to set property values for property outside the boundaries of its appraisal district. For these reasons, we conclude that section 6.025(d) does not violate the legislature’s duty under article VI& section 18(c) to provide for a single board of equalization “consisting of qualified persons residing within the territory appraised by that entity.” TEX. CONST. art. VIII, 5 18(c). It has also been suggested that section 6.025(d) violates the legislature’s article VIlI, section 18(c) duty to “provide for a single board of equalization for each appraisal entity.” Id. (emphasis added).’ However, section 6.025(d) does not change procedures for appealing property valuations. Property owners and taxing units continue to protest or challenge an appraisal district’s valuations before its appraisal review board. As the constitution requires, the legislature has provided for a system in which a single review board reviews an appraisal district’s valuations. And section 6.025(d) does not interfere with article VIII, section 18(b)-( c) ‘s requirement that all the taxing entities participating in an appraisal district impose taxes on a property using the same, single value. It is true that under section 6.025(d) a property value to be used by taxing units in an appraisal district may have been set by another appraisal review board in the course of reviewing its appraisal district’s valuation of the property. But we do not believe that this possibility violates the legislature’s duty to provide for a single board of equalization for each appraisal district. ‘See DCAD Letter, suprn note 5, at 6; see also TCAD Brief, supra note 5, at 7; BWCAD Brief, sqra note 5, 84. The Honorable Bill Hill - Page 11 (GA-0317) SUMMARY Section 6.025(d) of the Tax Code, which requires the chief appraisers of overlapping appraisal districts to enter into their districts’ appraisal records the lowest appraised and market values from all the values determined by each appraisal district, does not as a matter of law violate article VIII, section l(a) or (b) of the Texas Constitution. In a particular fact situation, a court could determine that a property value required by section 6.025(d) fails to appraise the property at its market value and causes a taxing unit to levy a tax that is not equal and uniform. Section 6.025(d) doesnot violate the article VET, section 18(c) requirement that the legislature establish a single review board for each appraisal district and that appraisal review board members reside in the appraisal district. BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Mary R. Crouter Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4128790/

ATTORNEYGENERALOF TEXAS GREG ABBOTT February 16,2005 The Honorable Will Hartnett Opinion No. GA-0305 Chair, Judiciary Committee Texas House of Representatives Re: Whether a city may use a Tax Code chapter Post Office Box 2910 311 tax increment fund to reimburse a private Austin, Texas 78768-2910 developer for certain costs if the expenditures have not been competitively bid (RQ-0262-GA) Dear Representative Hartnett: You ask whether a city may use a Tax Code chapter 3 11 tax increment fund to reimburse a private developer for certain costs if the expenditures have not been competitively bid.’ I. Legal Background A. Chapter 311 of the Tax Code Chapter 3 11 of the Tax Code, the Tax Increment Financing Act, authorizes cities to use tax increment financing to develop certain areas. See TEX. TAX CODE ANN. 5 3 11.001 (Vernon 2002) (short title). Section 3 11.003(a) authorizes the governing bodyofa municipalitybyordinance to “designate a contiguous geographic area in the jurisdiction of the municipality to be a reinvestment zone to promote development or redevelopment of the area if the governing body determines that development or redevelopment would not occur solely through private investment in the reasonably foreseeable future.” Id. 3 3 11.003(a). To be designated as a reinvestment zone, the area must meet certain statutory criteria. See id. 5 3 11.005; see also Tex. Att’y Gen. Gp. No. JC-0152 (1999) at 8 (noting that article VIII, section l-g(b) limits tax increment financing to an area that is “unproductive, underdeveloped, or blighted” and that Tax Code section 3 11.005 generally comports with that constitutional requirement). Before adopting an ordinance providing for a reinvestment zone, the governing body, among other things, must prepare a preliminary reinvestment zone financing plan, which must be sent to each taxing unit that levies taxes on real property in the proposed zone, and must hold a public hearing on the creation of the zone. See TEX. TAX CODE ANN. 5 3 11.003(b)-(c) (Vernon 2002). The ‘See Letter from Honorable Will Hamett, Chair, Judiciary Committee, Texas House of Representatives, to Honorable Greg Abbott, Texas Attorney General (Aug. 23, 2004) (on tile with Opinion Committee, also availnbk at http://www.oag.state.hi.us) [hereinafter Request Letter]. The Honorable Will Hartnett - Page 2 (GA-0305) ordinance designating an area as a reinvestment zone must, among other things, describe the zone’s boundaries, create a board of directors for the zone, and establish a tax increment fund. See id. 5 311,004(a)(l)-(2), (6). Once a reinvestment zone has been created and a board of directors appointed, see id. 3 311.009 (board of directors), the board must adopt a project plan and a reinvestment zone financing plan that is “as consistent as possible” with the preliminary plans. Id. 5 3 11 ,011 (a). The project plan must include a map showing proposed improvements to real property in the zone and a list of estimated nonproject costs. See id. 5 3 11 .Ol l(b). The reinvestment zone financing plan must include a detailed list of the estimated project costs and a list of proposed public works or improvements, See id. 5 311 .Ol l(c). After their adoption by the board, the municipal governing body must by ordinance approve the plans, as well as any subsequent plan amendments. See id. 5 311.011(d)-(e). A municipality may “exercise any power necessary and convenient to carry out this chapter” including, for example, entering into agreements to implement project plans and constructing public works and improvements consistent with the project plan. See id. 3 3 11,008@)(4)(B). The governing body of the municipality “by ordinance or resolution may authorize the board to exercise any of the municipality’s powers with respect to the administration, management, or operation ofthe zone or the implementation ofthe project plan for the zone,“see id. 5 3 11 .Ol O(a), with the exception of certain municipal powers, see id. 5 311.010(a), (d), and “may restrict any power granted to the board” by chapter 3 11, id. 5 3 11 .Ol O(d). Thus, while chapter 3 11 provides a reinvestment zone board with certain powers, and a city may delegate certain powers to a board, chapter 3 11 does not vest powers in the board independent of the city. Chapter 3 11 improvements are financed by the tax increment, either directly or as a revenue source to retire tax increment bond indebtedness. After a reinvestment zone’s creation and for the zone’s duration, participating taxing units that tax real property in the reinvestment zone, with certain exceptions, must pay the tax increment into the tax increment fund. See id. § 311.013 (Vernon Supp. 2004-05).* In any particular tax year, the tax increment is calculated by subtracting ‘Whether and to what extent a particular taxing unit is required to pay the tax increment into the tax increment fond will depend upon a number of factors. See, e.g., TEX. TAX CODE ANN. $5 3 11.0125(d) (Vernon Supp. 2004-05) (“If a taxing unit enters into a tax abatement agreement authorized by this section, taxes that are abated under that agreement are not considered taxes to be imposed or produced by that taxing unit in calculating the amount oE (1) the tax increment of that taxing unit; or (2) that taxing unit’s deposit to the tax increment fond for the reinvestment zone.“); 3 11.013(b) (“Each taxing unit shall pay into the tax increment fund for the zone an amount equal to the tax increment produced by the unit, less the sum of: (1) property taxes produced from the tax increments that are, by contract executed before the designation ofthe area as a reinvestment zone, required to be paid by the unit to another political subdivision; and (2) a portion, not to exceed 15 percent, of the tax increment produced by the unit as provided by the reinvestment zone financing plan or a larger portion as provided by Subsection(f).“); 311.013(d)-(e) (certain taxing units are not required to pay a tax increment into the tax increment fund if improvements are not undertaken in the zone within three years); 3 11.013(f) (“A taxing unit is not required to pay into the tax increment fond any of its tax increment produced from property located in a reinvestment zone designated under Section 3 11.005(a) or in an area added to a reinvestment zone under Section 3 Il.007 unless the taxing unit enters into an agreement to do so with the governing body of the (continued...) The Honorable Will Hartnett - Page 3 (GA-0305) “the tax increment base,” which is the total appraised value of taxable real property in the reinvestment zone for the year in which the zone was designated, from the current total appraised value of taxable real property in the reinvestment zone. See id. 5 311.012. “In general, the ‘tax increments’ are taxes derived by a taxing unit from the difference between the appraised value of all taxable real property located in a reinvestment zone for that year less the appraised value of the property when the zone was established. In other words, they are taxes attributable to the increased value of the real property in the zone presumably due to its development.” Tex. Att’y Gen. Op. No. JC-0300 (2000) at 8 n.8 (citing Tax Code section 311.012). In addition, a municipality may issue tax increment bonds and notes, the proceeds of which are used to pay project costs for the zone. See TEX. TAX CODE ANN. 9 311.015(a) (Vernon 2002). Revenues from tax increment bond sales must be deposited in the tax increment fund, along with the tax increments collected by participating taxing units. See id. 3 311.014(a). The tax increment fund is used to finance improvements within the zone consistent with the plans. See id. 5 311.014(a)-(c). Section 311.014(b) provides that “[mloneymay be disbursed from the fund only to satisfy claims of holders of tax increment bonds or notes issued for the zone, to pay project costs for the zone, or to make payments pursuant to an agreement made under Section 311.010(b) dedicating revenue from the tax increment fund.” Id. 5 311.014(b) (emphasis added). For purposes of the Act, the term “project costs” means the expenditures made or estimated to be made and monetary obligations incurred or estimated to be incurred by the municipality establishing a reinvestment zone that are listed in the project plan as costs ofpublic works orpublic improvements in the zone, plus other costs incidental to those expenditures and obligations. Id. 5 311.002(l) (emphasis added). The definition further provides that “project costs” include a varietyofrelatedcosts. Seeid. 5 311.002(1)(A)-(K).’ Section 311.010(b) authorizes eitherthe board ‘(-continued) municipality that created the zone. A taxing unit may enter into an agreement under this subsection at any time before or after the zone is created or enlarged. The agreement may include conditions for payment of that tax increment into the fund and must specify the portion of the tax increment to be! paid into the fund and the years for which that tax increment is to be paid into the fund. The agreement and the conditions in the agreement are binding on the taxing unit, the municipality, and the board of directors of the zone.“). 3Specifica11y, subsections (A) through (K) of section 3 11.002( 1) include within project costs: (A) capital costs, including the actual costs of the acquisition and construction of public works, public improvements, newbuildings, stmctures, and fixtures; the actual costs ofthe acquisition, demolition, alteration, remodeling, repair, or reconstruction of existing buildings, structures, and fixtures; and the actual costs of the acquisition of land and equipment and the clearing and grading of land; (B) financing costs, including all interest paid to holders of evidences of indebtedness or (continued...) The Honorable Will Hartnett - Page 4 (GA-0305) of directors of a reinvestment zone or the governing body of the municipality that creates a reinvestment zone to enter “into agreements as the board or the governing body considers necessary or convenient to implement the project plan and reinvestment zone financing plan and achieve their purposes.” Id. 9 311.010(b). It further identifies certain terms that may be included in such an agreement: An agreement may provide for the regulation or restriction of the use of land by imposing conditions, restrictions, or covenants that run with the land. An agreement may during the term of the agreement dedicate, pledge, or otherwise provide for the use of revenue in the tax increment fund to pay any project costs that benefit the reinvestment zone, including project costs relating to the cost of buildings, schools, or other educational facilities owned by or on behalf of a school district, community college district, or other political subdivision of this state, railroad or transit facilities, affordable housing, the remediation of conditions that contaminate public or private land or buildings, the preservation of the facade of ‘(-continued) other obligations issued to pay for project costs and any premium paid over the principal amount of the obligations because of the redemption of the obligations before maturity; (C) real property assembly costs; (D) professional service costs, including those incurred for architectural, planning, engineering, and legal advice and services; (E) imputed administrative costs, including reasonable charges for the time spent by employees of the municipality in connection with the implementation of a project plan; (F) relocation costs; (Ci) organizational costs, including the costs of conducting environmental impact studies or other studies, the cost ofpublicizing the creation of the zone, and the cost of implementing the project plan for the zone; (H) interestbefore andduring constructionandforoneyearaftercompletionofcons~ction~ whether or not capitalized, (I) the cost of operating the reinvestment zone and project facilities; (J) the amount of any contributions made by the municipality from general revenue for the implementation of the project plan; and (K) payments made at the discretion of the governing body of the municipality that the municipality finds necessary or convenient to the creation of the zone or to the implementation of the project plans for the zone. TEX. TAX CODE ANN. 5 3 I I .002( 1) (Vernon 2002). The Honorable Will Hartnett - Page 5 (GA-0305) a private or public building, or the demolition of public or private buildings. Id. (emphasis added). B. Chapter 252 of the Local Government Code Municipalities are generally subject to the competitive procurement requirements set out in chapter 252 of the Local Government Code. In addition to establishing procedures for competitive bidding, chapter 252 permits a municipality to use alternate competitive procurement procedures in certain circumstances. See, e.g., TEX. LOC. GOV’T CODE ANN. $5 252.021(a)(l) (Vernon Supp. 2004-05) (competitive sealed bidding or competitive sealed proposals), (2) (reverse auction procedure), (3) (methods prescribed by Local Government Code, chapter 271, subchapter H); 252.0415 (requests for proposals). For simplicity’s sake, we refer to these procedures collectively as competitive bidding requirements. Pursuant to section 252.021, a municipality must comply with chapter 252’s competitive bidding requirements before “enter[ing] into a contract that requires an expenditure of more than $25,000 from one or more municipal funds.” Id. 5 252.021(a). Section 252.022 exempts expenditures for certain goods and services from the chapter’s scope, see id. 5 252.022, such as “a procurement necessary to preserve or protect the public health and safety” and “a procurement for personal, professional, or planning services,” id. § 252,022(a)(2), (4).4 II. Analvsis You ask two questions with respect to a city’s authority to make payments from the tax increment fund: 1. May a city reimburse a private developer from the tax increment fund for costs incurred by the developer for environmental remediation, renovation, or facade preservation of a private or public building in the reinvestment zone, if such project costs have not been competitively bid in accordance with Chapter 252 of the Local Government Code? 2. Do any eligible project costs to be reimbursed from the tax increment fund have to be competitively bid? %3xtain conflicting home-rule city charter provisions control over a provision of chapter 252. See TEX. LOC. GOV’T CODE ANN. 5 252.002 (Vernon 1999) (“Any provision in the charter of a home-rule municipality that relates to the notice of contracts, advertisement of the notice, requirements for the taking of sealed bids based on specifications for public improvements or purchases, the manner of publicly opening bids or reading them aloud, or the manner of letting contracts and that is in conflict with this chapter controls over this chapter unless the governing body of the municipality elects to have this chapter supersede the charter.“). The Honorable Will Hartnett - Page 6 (GA-0305) Request Letter, supra note 1, at 2. Your questions raise three general issues: whether the tax increment fund may be used to pay for environmental remediation, renovation, or facade preservation costs; whether a city’s tax increment fund expenditures for project costs must be competitively bid; and whether a city mayreimburse a private developer from the tax increment fund for costs that have not been competitively bid. You have not provided us with any information about the city, reinvestment zone, or private developer at issue, and we address these concerns in general terms and not with respect to any particular fact situation. We note that you ask about a city’s authority to make expenditures from a tax increment fund to pay costs for specific work performed; you do not ask about the city’s authority to designate an area or particular property to be a reinvestment zone or to adopt a project plan. We assume that the city at issue has already designated the area as a reinvestment zone and has adopted a project plan. We do not address that authority. A. Allowable Uses for the Tax Increment Fund With respect to the first issue, section 311.014(b) of the Tax Code provides that money may be disbursed from the tax increment fund “only to satisfy claims of holders of tax increment bonds or notes issued for the zone, to pay project costs for the zone, or fo makepayments pursuant to an agreement made under Section 311.01 O@)dedicating revenue from the tax increment fund.” TEX. TAX CODE ANN. 3 3 11.014(b) (Vernon 2002) (emphasis added). Your letter suggests that section 311.010(b) authorizes using a tax increment fund to pay a private developer for “costs incurred by the developer for environmental remediation, renovation, or facade preservation of a private or public building.” Request Letter, supra note 1, at 2. Section 3 11 .Ol O(b) generally authorizes either the board of directors of a reinvestment zone or the governing body ofthe municipality that creates a reinvestment zone to “enter into agreements as the board or the governing body considers necessary or convenient to implement the project plan and reinvestment zone financing plan and achieve their purposes,” TEX. TAX CODE ANN. $J 311.010(b) (Vernon 2002) (emphasis added), and more specifically provides that such an agreement may “dedicate, pledge, or otherwise provide for the use of revenue in the tax increment fund topay anyproject costs that benefit the reinvestment zone, includingproject costs relating to the cost of. . the remediation of conditions that contaminate public or private land or buildings, [or] the preservation of the facade of a private or public building,” id. (emphasis added). Thus, while section 3 11 .Ol O(b) specifically authorizes agreements dedicating tax increment fund revenues to pay for environmental remediation and facade preservation costs, such costs must be project costs. See id. For this reason, under section 3 11.014(b) or 3 11 .Ol O(b), tax increment fund expenditures, other than payments to satisfy claims of holders of tax increment bonds or notes, must be to pay project costs. To constitute “project costs,” costs must fall within the section 3 11.002(l) definition of the term. See id. 5 311.002(l). Under section 311,002(1),“project costs”must be “listed in the project plan as costs of public works or public improvements in the zone” or constitute “other costs incidental to those expenditures and obligations.” Id. 5 311.002(l). In addition, section The Honorable Will Hartnett - Page 7 (GA-0305) 311,002(1)(K) provides that “project costs” include “payments made at the discretion of the governing body of the municipality that the municipality finds necessary or convenient to the creation ofthe zone or to the implementation ofthe project plans for the zone.” Id. 5 3 11.002(1)(K). Thus, with regard to the first issue you raise, a city may expend tax increment funds to pay “costs incurred by the developer for environmental remediation, renovation, or facade preservation of a private or public building,” Request Letter, supra note 1, at 2, only if the city determines that the costs constitute “project costs” within the meaning of section 3 11.002( 1). In particular, the costs must be listed in the project plan or constitute “other costs incidental to those expenditures and obligations.” TEX. TAX CODE ANN. 5 311.002(l) (Vernon 2002). The costs may also constitute “project costs” if the city governing body finds them “necessary or convenient to the creation of the zone or to the implementation of the project plans for the zone.” Id. § 311.002(1)(K). Whether a particular payment is for project costs involves questions of fact beyond the purview of an attorney general opinion. Seegenerally Tex. Att’y Gen. Op. Nos. GA-0128 (2003) at 5 (a question requiring resolution of particular facts is “not one in which this office ordinarily engages in the opinion process”); GA-0106 (2003) at 7 (“[tlhis office cannot find facts or resolve fact questions in an attorney general opinion”) B. Competitive Bidding You also ask whether a city’s authority to use the tax increment fund to pay a private developer for costs for environmental remediation or facade preservation costs or other project costs is limited by competitive bidding statutes. See Request Letter, supra note 1, at 2. Your questions indicate that the city, not some other entity, is expending funds. See id. (“May a city reimburse a private developer from the tax increment fund ?“) (emphasis added). Thus, we assume that the city and the reinvestment zone board of directors have not delegated the authority to manage the reinvestment zone to a local government corporation5 The legislature has adopted statutes that authorize governmental entities like cities and counties to establish separate entities to expend tax funds and has provided, expressly or by clear implication, that these separate entities and the money they control are not subject to competitive bidding laws and similar statutes. In such cases, this office has concluded that statutes governing the creating entity’s transactions do not apply. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0335 (2001) at 4 (concluding that “section 394.904(b) of the Local Government Code . excepts contracts of a local government corporation from the Professional Services Procurement Act”); JC-0206 (2000) at 4, 6 (concluding that Transportation Code section 431.101(e) exempts a local government corporation from the competitive bidding provisions applicable to the county that created it); JC-0109 (1999) at 2,6 (concluding that a section 4B corporation is not subject to the public notice and bidding requirements of section 272.001(a) of the Local Government Code on the basis of ‘Section 311.010(f) provides that the board of directors of a reinvestment zone and the governing body of the municipality “may enter into a contract with a local govemment corporation to manage the reinvestment zone or implement the project plan and reinvestment zone fmancing plan for the term of the agreement.” TEX. TAX CODE ANN. 5 3 11 .Ol O(f) (Vernon 2002) (“In this subsection, ‘local government corporation’ means a local govemment corporation created by the municipality under Chapter 43 1, Transportation Code.“). The Honorable Will Hartnett - Page 8 (GA-0305) section 22 of article 5190.6, which provides that a development corporation is not a political subdivision or a political corporation); JC-0032 (1999) at 6-7 (concluding on basis of section 22 of article 5 190.6 that a section 4A development corporation is not a political subdivision subject to the prevailing wage law, Government Code chapter 2258). As these opinions illustrate, whether a statutory requirement applies to a particular entity or its transactions must be decided on the basis of the requirement’s scope and the specific statutes governing the entity. You ask in particular whether project costs paid by a city from the tax increment fund must be competitively bid under chapter 252 of the Local Government Code, see Request Letter, supra note 1, at 2, and we limit our analysis to that statute. Neither chapter 252 nor chapter 3 11 of the Tax Code expressly addresses whether tax increment fund expenditures are subject to competitive bidding under chapter 252. And we have not located any judicial or attorney general opinion resolving the question. Section 252.021 of the Local Government Code generally requires a municipality to comply with certain competitive bidding procedures before entering into a contract that requires an expenditure, over a certain dollar amount, “from one or more municipal funds.” See TEX. Lot. GOV’T CODE ANN. 3 252.021(a) (Vernon Supp. 2004-05) (“Before a municipality may enter into a contract that requires an expenditure ofmore than $25,000 from one or more municipal funds, the municipality must .“). You ask about a city’s” authority to make expenditures from the tax increment fund. Thus, the answer to your question depends upon whether the tax increment fund is a municipal fund within the meaning of section 252.021. Chapter 252 of the Local Government Code does not define the term “municipal fund,” nor is the term defined in other statutes, cases, or attorney general opinions. Section 252.021(d) provides that chapter 252 “does not apply to the expenditure of municipal funds that are derived from an appropriation, loan, or grant received by a municipality from the federal or state government for conducting a community development program established under Chapter 373 if under the program items are purchased under the request-for-proposal process described by Section 252.042.” Id. 3 252.021(d). This section suggests that whether funds are “municipal funds” is determined by whether the municipality possesses and controls the money rather than by the money’s source. Chapter 3 11 vests the city with possession and control over the tax increment fund. The tax increment fund, which the city establishes by ordinance, consists of deposits of the “tax increment” by the city and other participating units, revenue from the sale of tax increment bonds or notes, and revenue from sales ofproperty acquired as part of the tax increment fund. See TEX. TAX CODE ANN. $5 311.004(a)(6), ,012 (Vernon 2002), ,013 (Vernon Supp. 2004-05). Although other taxing units may contribute taxes to the tax increment fund, the timd is expended according to plans approved by the municipal governing body in a city ordinance. See id. 3 3 11 ,011 (Vernon 2002). Moreover, ‘See Request Letter, supra note 1, at 2. An attorney general opinion has concluded that a city agency or division is subject to municipal competitive bidding requirements, see Tex. Att’y Gen. op. No. MW- 132 (1980) at 2 (concluding thatcityand county housing authorities are subject to competitivebidding requirements applicable to cities and counties), and it is likely that a reinvestment mne board is subject to chapter 252 as a municipal entity. Given that you ask about city expenditures and that chapter 3 11 clearly Vests the creating municipal governing body with authority to expend the tax increment fund, however, we need not resolve whether municipal competitive bidding requirements apply to expenditures made by a reinvestment zcme board. The Honorable Will Hartnett - Page 9 (GA-0305) chapter 3 11 does not remove tax increment fund spending from the city’s control. Both the city and the reinvestment zone board are expressly authorized to implement the project and financing plans and to make agreements pledging tax increment fund revenues, see id. $5 3 11.008(b)(l) (powers of the municipality to implement the plans), ,010 (powers of the board of directors), but the municipal governing body may restrict any power granted to the board, id. 5 3 11 .OlO(d)( 1). Furthermore, the governing body ofthe municipality is required to provide the other taxing units, the attorney general, and the comptroller with financial information about the tax increment fund on a yearly basis. See id. § 311.016. In addition, wenote that section 311.014(c)provides that, subject to the tax increment bond and note holders’ agreement, “money in a tax increment fund may be temporarily invested in the same manner as otherfunds of the municipality.” Id. 5 311.014(c) (emphasis added). In sum, the legislature has not provided in chapter 3 11 that the tax reinvestment zone or its board is an entity separate from the city, nor has it expressly provided that tax increment fund expenditures are not subject to competitive bidding statutes and similar laws. Furthermore, the city possesses the tax increment fund and controls its use, may commit fund revenues, and is accountable for the fund’s use to other,entities. Taken as a whole, chapter 311 suggests that the tax increment fund is a fund “of the municipality.” Id. For these reasons, we conclude that a tax increment fund is a municipal fund within the meaning of chapter 252 of the Local Government Code and that chapter 252 may apply to expenditures from the tax increment fund. Whether a particular expenditure is subject to competitive bidding will depend upon whether the expenditure falls within the terms of section 252.021. See TEX. Lot. GOV’T CODEANN. 9 252.021(a) (Vernon Supp. 2004-05) (“Before a municipality may enter into a contract that requires an expenditure of more than $25,000 from one or more municipal funds, the municipality must [follow certain procedures.]“). In addition, a particular expenditure may be exempt from chapter 252 under section 252.022. See id. 4 252.022(a) (“This chapter does not apply to an expenditure for [certain goods and services].“). We have received a brief that contends that chapter 252 should not apply to the tax increment fund expenditures you ask about because private developers will have no incentive to improve their property if they must compete with others for reinvestment zone funding to perform the work? However, chapter 252 clearly applies to expenditures from municipal funds for real property improvements made by private developers because it includes a limited exception for such expenditures. Specifically, section 252.022(a)(ll) excepts from chapter 252 an expenditure for “a payment under a contract by which a developer participates in the construction of a public improvement as provided by Subchapter C, Chapter 212.” Id. 5 252.022(a)(ll). Subchapter C of chapter 212 of the Local Government Code provides that “a municipality with 5,000 or more inhabitants may make a contract with a developer of a subdivision or land in the municipality to construct public improvements, not including a building, related to the development,” without complying with chapter 252. Id. 5 212.071; see also id. § 212.072(a) (“Under the contract, the ‘see Brief from Bennett Sandlin, Legal Services Director, Texas Municipal League, to Nancy S. Fuller, Chair, Opinion Committee, Office of Attorney General, at 1 (Sept. 24,2004) ( on file with Opinion Committee) [hereinafter TML Brief]. The Honorable Will Hartnett - Page 10 (GA-0305) developer shall construct the improvements and the municipality shall participate in their cost.“).’ Subchapter C also expressly provides that if the “contract does not meet the requirements of this subchapter, Chapter 252 applies to the contract ifthe contract would otherwise be governed by that chapter.” Id. 5 212.071. C. Reimbursement Finally, we consider whether a city may reimburse a private developer from the tax increment fund for costs that have not been competitively bid. You ask about a city’s authority to reimburse a private developer for project costs, but do not provide specific facts. See Request Letter, supra note 1, at 2. By “reimbursement,” you could mean that the city agreed in advance to pay the private developer for the costs upon completion ofthe work and that the developer has performed the work and now seeks payment pursuant to the agreement. In that case, the expenditure is permissible if it is authorized by chapter 3 11 and the agreement to pay for the work was entered into pursuant to competitive bidding requirements, if applicable. On the other hand, you could mean that the private developer seeks reinvestment zone funding for costs for work the developer has already performed but that the city did not agree in advance to pay. We assume you mean the latter. As we have concluded, some tax increment fund expenditures will be subject to competitive bidding under chapter 252 ofthe Local Government Code. Under chapter 252, a municipality must comply with competitive bidding requirements before agreeing to pay municipal funds. See TEX. LOC. GOV’T CODEANN. § 252.021(a) (Vernon Supp. 2004-05) (“Before a municipality may enter into LIcontract that requires an expenditure ofmore than $25,000 from one or more municipal funds, the municipality must [follow certain procedures.]“) (emphasis added). Moreover, competitive bidding procedures contemplate potential contractors submitting bids to undertake work that has not yet been performed, the city awarding a contract to the lowest responsible bidder, the successful bidder performing the work, and the city then paying for the work pursuant to the contract. See, e.g., id. § 252.043. If a municipal expenditure is subject to chapter 252, the city would be precluded from reimbursing a person for costs incurred for work not performed pursuant to a competitively bid contract. We have received a brief that contends that chapter 252 does not apply when a city reimburses a private developer because chapter 252 applies to a city’s expenditures and does not apply to private entities. See TML Brief, supra note 7, at 1. However, you do not ask about a city’s authority to require a private developer to procure contracts by competitive bidding but rather about *See aim TEX. Lot. GOV’T CODE ANN. 5 212.072(b) (Vernon Supp. 2004-05) (“The contract must establish the limit of participation by the municipality at a level not to exceed 30 percent of the total contract price. In addition, the contract may also allow participation by the municipality at a level not to exceed 100 percent of the total cost for any oversizing of improvements required by the municipality, including but not limited to increased capacity of improvements to anticipate other ii~ture development in the area. The municipality is liable only for the agreed payment of its share, which shall be determined in advance either as a lump sum OI as a factor OI percentage of the total actual cost as determined by municipal ordinance.“). The Honorable Will Hartnett - Page 11 (GA-0305) a city’s authority to pay a private developer for costs the developer has incurred. We conclude that when chapter 252 competitive bidding requirements apply to an expenditure, a city is necessarily precluded from reimbursing a private developer. This conclusion does not require a private developer to comply with chapter 252 but rather limits a city’s authority to expend funds without complying with chapter 252. Even if tax increment fund expenditures are not subject to competitive bidding (because they fall under the section 252.021 threshold or are excepted under section 252.022), reimbursing a private developer for work performed without the city’s prior agreement raises additional concerns. First, chapter 3 11 of the Tax Code contemplates that the tax increment fund will be used to pay for project costs outlined in advance in the project plan, WTEX. TAX CODEANN. $5 3 11.002( 1) (Vernon 2002) (defining “project costs”), and pursuant to “agreements to implement the project plan and reinvestment zone financing plan, “id. 5 311.010(b). Seegenerally id. 3 311.014(b) (Tax increment fund “[mloney may be disbursed from the fund only to satisfy claims of holders of tax increment bonds or notes issued for the zone, to payproject costs for the zone, or to make payments pursuant to an agreement made under Section 311.01 O(b) dedicating revenue from the tax increment fund.“) (emphasis added). In addition, money in a tax increment fund, taxes deposited by participating taxing units, is public money subject to constitutional limitations on the use of public funds. See TEX. CONST.art. III, 5 52 (“the Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision ofthe State to lend its credit or to grant public money or thing of value in aid of, or to any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company”). Cf: Tex. Att’y Gen. Op. Nos. GA-0264 (2004) at 1O-l 2, JC-0118 (1999) at 9 (concluding that sales and use tax proceeds collected for economic development under the Development Corporation Act of 1979 are public funds subject to article III, section 52). As a result, a city must ensure that tax increment fund expenditures are supported by sufficient consideration and are not gratuitous payments. See Tex. Mun. League Zntergov’tlRiskPoolv. Tex. Workers’ Camp. Comm ‘n, 74 S.W.3d 377,383 (Tex. 2002) (“[Slection 52(a)‘s prohibiting the Legislature from authorizing apolitical subdivision ‘to grant public money’ means that the Legislature cannot require gratuitous payments to individuals, associations, or corporations. A political subdivision’s paying public money is not ‘gratuitous’ if the political subdivision receives return consideration.“) (citations omitted). In making an expenditure ofpublic funds that benefits a private person or entity, “a [political subdivision’s governing body] will avoid violating article llI, section 52 if it (i) determines in good faith that the expenditure serves a public purpose and (ii) places sufficient controls on the transaction, contractual or otherwise, to ensure that the public purpose is carried out.” Tex. Att’y Gen. Op. No. GA-01 88 (2004) at 4. Any city tax increment fund expenditure must be authorized by chapter 311 and must comport with article III, section 52. However, before reimbursing a private developer for work performed without the city’s prior agreement, we would advise a city to be especially careful to consider whether the expenditure (i) is for a project cost authorized by the project plan and (ii) is a gratuitous payment prohibited by article III, section 52, particularly given that the city is not contractually obligated to pay. The Honorable Will Hartnett - Page 12 (GA-0305) SUMMARY A city may use a Tax Code chapter 3 11 tax increment fund to pay a private developer for environmental remediation, renovation, or facade preservation costs if the costs constitute “project costs” within the scope of section 3 11.002(l). A tax increment fund is a municipal fund within the meaning of chapter 252 of the Local Government Code, and chapter 252’s competitive bidding requirements may apply to expenditures from the tax increment fund. Whether a particular expenditure is subject to competitive bidding will depend upon whether the expenditure falls within the terms of section 252.021 and whether the expenditure is exempt from chapter 252 under section 252.022. If a municipal expenditure is subject to chapter 252, the city would be precluded from reimbursing a person for costs incurred for work not performed pursuant to a competitively bid contract. Very truly yours, BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Mary R. Crouter Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127434/

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. 87-1203 : JOHN K. VAN DE KAMP : JUNE 15, 1988 Attorney General : : ANTHONY S. DaVIGO : Deputy Attorney General : : ----------------------------------------------------------------- THE HONORABLE LOUISE H. RENNE, CITY ATTORNEY, CITY AND COUNTY OF SAN FRANCISCO, has requested an opinion on the following question: Is a person whose felony conviction has been set aside pursuant to the Federal Youth Corrections Act eligible for employment in California as a peace officer? CONCLUSION A person whose felony conviction has been set aside pursuant to the Federal Youth Corrections Act is eligible for employment in California as a peace officer. However, the conviction may be considered as a basis for an employment decision. ANALYSIS Section 5021, subsection (b), of the Federal Youth Corrections Act (tit. 18 U.S.C. § 5005 1 et seq.) provided: 1 Repealed by Public Law 98-473, title II, section 218(a)(8), October 12, 1984, 98 Statutes 2027. Where a youth offender whose offense preceded the date of repeal of the Act had been granted or had qualified for a section 5021 certificate, it is immaterial that the act was subsequently repealed. (Cf. United States v. Romero (D. NM, 1984) 596 F. Supp. 446, 448.) "Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect." The inquiry presented is whether an individual who was convicted of a felony in a federal court, placed on probation, and unconditionally discharged from probation prior to the expiration of its maximum period, may thereafter be employed in this state as a peace officer. Government Code section 1029 provides in part as follows: "(a) Except as provided in subdivision (b), (c), or (d), each of the following persons is disqualified from holding office as a peace officer or being employed as a peace officer of the state, county, city, city and county or other political subdivision, whether with or without compensation, and is disqualified from any office or employment by the state, county, city, city and county or other political subdivision, whether with or without compensation, which confers upon the holder or employee the powers and duties of a peace officer: "(1) Any person who has been convicted of a felony in this state or any other state. ". . . . . . . . . . . . . . . . . . . . . . . . "(b) Any person who has been convicted of a felony, other than a felony punishable by death, in this state or any other state, or who has been convicted of any offense in any other state which would have been a felony, other than a felony punishable by death, if committed in this state, and who demonstrates the ability to assist persons in programs of rehabilitation may hold office and be employed as a parole officer of the Department of Corrections or the Department of the Youth Authority, or as a probation officer in a county probation department, if he or she has been granted a full and unconditional pardon for the felony or offense of which he or she was convicted. Notwithstanding any other provision of law, the Department of Corrections or the Department of the Youth Authority, or a county probation department, may refuse to employ any such person regardless of his or her qualifications. ". . . . . . . . . . . . . . . . . . . . . . . . " (Emphasis added.) In 63 Ops.Cal.Atty.Gen. 591 (1980) we concluded that a person who has been convicted of a felony in federal court, whose conviction has been set aside pursuant to section 5021 of title 18 of the United States Code, is not eligible for employment as a California peace officer. Specifically, we determined, upon a comprehensive analysis, that the Legislature intended that in the absence of a full and unconditional pardon, a person who has a felony conviction set aside under the federal provision would nevertheless fall within the constraints of Government Code section 1029. (Id. at 2. 87-1203 596.) We have carefully reconsidered that analysis and find no basis for modifying our characterization of legislative intent. On the contrary, it is noted that since the issuance and publication of that opinion, the Legislature has twice amended in material respects the provisions of Government Code section 1029, without effecting any change which would provide a basis for such modification. (Stats. 1984, ch.387, § 1; Stats. 1985, ch. 468, § 1.) It must be presumed that the interpretation set forth in that opinion had come to the attention of the Legislature, and if it were contrary to the legislative intent that some corrective measure would have been adopted. (California Correctional Officers' Assn. v. Board of Administration (1978) 76 Cal. App. 3d 786, 794; Sonoma County Bd. of Educ. v. Pub. Emp. Rel. Bd. (1980) 102 Cal. App. 3d 689, 700; 67 Ops.Cal.Atty.Gen. 519, 522 (1984).)2 Two fundamental issues remain. The first concerns the power of the Congress to supersede the determinations of a state regarding the qualifications of its peace officers. In 63 Ops.Cal.Atty.Gen. 591, supra, we focused on National League of Cities v. Usury (1976) 426 U.S. 833 for the proposition that the Tenth Amendment prohibited Congress from exercising its power to force directly upon the state its choices as to how essential decisions regarding the conduct of integral government functions are to be made. In that case, the court found that Congress could not withdraw from the state the authority to make fundamental employment decisions with regard to the carrying out of its basic function of furnishing public services, including police protection. We expressed the view that the determination of qualifications for peace officers falls within such state authority. (63 Ops.Cal.Atty.Gen., supra, 599.) National League of Cities v. Usury, supra, 426 U.S. 833, was subsequently overruled in Garcia v. San Antonio Metropolitan Transit Authority et al. (1985) 469 U.S. 528. Hence, we now consider the second fundamental issue, whether the federal law did in fact preempt Government Code section 1029, which forecloses categorically, with certain narrow exceptions, from employment as a peace officer any person whose conviction has been set aside pursuant to the Federal Youth Corrections Act. 2 A subsidiary issue neither posited nor considered in the prior opinion is the nature of a "conviction" for purposes of Government Code section 1029. In Boyll v. State Personnel Board (1983) 146 Cal. App. 3d 1070, the court held that a conviction must include both the guilty plea or verdict and a judgment entered thereon. (Id. at 1074.) Thus, where an applicant for a peace officer position had pleaded guilty to a felony charge, and the court suspended further proceedings without rendition of judgment or imposition of sentence, and following successful completion of a rehabilitation program dismissed the criminal charge, section 1029 could not operate as a bar. (Id. at 1075-1076.) While the term "conviction" in section 5021 of the Federal Youth Corrections Act included a verdict, finding, or plea of guilty (or nolo contendere) and a judgment (§ 5006(g)), the Act does provide an alternative procedure under which the court may suspend the imposition of sentence and place the youth offender on probation. (§ 5010.) In such a case, Government Code section 1029 would not constitute a barrier against employment as a peace officer. 3. 87-1203 In Silkwood, etc. v. Kerr-McGee Corp., et al. (1984) 464 U.S. 238, 248, the Supreme Court set forth the principles of federal preemption: "As we recently observed in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983), state law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. Id., at 203-204; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Pacific Gas Electric, supra, at 204." (See also 63 Ops.Cal.Atty.Gen. 647, 655 (1980).) It remains to be determined whether Government Code section 1029 "stands as an obstacle to the accomplishment of the full purposes and objectives" of the Federal Youth Corrections Act. We conclude that it does. There can be no doubt that one of the purposes of the Act was to facilitate employment opportunities. In Doe v. Webster (D.C. Cir. 1979) 606 F.2d 1226, 1234-1240, the court summarized the purposes of the Act: "[The authors'] primary concern was that rehabilitated youth offenders be spared the far more common and pervasive social stigma and loss of economic opportunity that in this society accompany the 'ex-con' label. While the legislative history offers little guidance as to the reasoning behind the drafters' choice of terminology, it is crystal-clear in one respect: they intended to give youthful ex-offenders a fresh start, free from the stain of a criminal conviction, and an opportunity to clean their slates to afford them a second chance, in terms of both jobs and standing in the community. . . . "Chief Judge Orie L. Phillips, of the United States Court of Appeals for the Tenth Circuit, made the same point, stating that '. . . the Act does provide for the wiping out of the conviction if the youth is discharged, rehabilitated, and behaves himself well after his period of supervision. The purpose of that is to help him get a job and keep him from having to be turned down by a prospective employer because of the fact that he has a conviction.' Id. at 70. [3] And Chief Judge John J. Parker, of the United States Court of Appeals for the Fourth Circuit, Chairman of the Committee, testified as to 'one feature in 3 The references are to the Hearings on S. 1114 and S. 2609 Before a Subcommittee of the Senate Committee on the Judiciary, 81st Congress, 1st Session 7 (1949); Report of the Judicial Conference of Senior Circuit Judges 19 (1946). 4. 87-1203 this bill which is very salutary and that is if the youth offender is reclaimed . . ., they can strike out the sentence imposed on him and completely set aside his conviction so that he will not have a criminal record staring him in the face.' Id. at 45. "Accordingly, the various Circuits have consistently stressed both the rehabilitative aspects of the Act and its purpose to provide youthful ex-offenders a fresh start free of the economic and social disabilities attributable to a criminal conviction. ". . . . . . . . . . . . . . . . . . . . . . . "The Youth Corrections Act was designed to break that chain, to give those young people who have not yet matured into hardened criminals an opportunity to break out into normal society, with jobs, opportunities, and freedom from the stigma of a criminal record." (And see United States v. Campbell (9th Cir. 1984) 724 F.2d 812.) Hence, Government Code section 1029, which forecloses catergorically, with certain narrow exceptions, from employment as a peace officer any person whose conviction has been set aside pursuant to the Federal Youth Corrections Act, "stands as an obstacle to the full purposes and objectives" of that Act. As one of the numerous legal barriers4 attendant upon conviction, therefore, Government Code section 1029 has been superceded by the provisions of the federal Act.5 The court in Doe v. Webster, supra, 606 F.2d at 1239, fn. 51, took particular note of legal barriers against government employment: ". . . Private employers often avoid hiring applicants with criminal records, and there are even more formidable barriers where public employment or entry into licensed occupations is sought. The federal government . . ., every state, . . . and most municipalities, . . . allow for the exclusion of ex-convicts from most regulated occupations. Such licensing has been held to be a valid exercise of local police power." Nevertheless, we are not aware of any case, state or federal, which has held that the federal Act by implication prohibits an employer having knowledge of a conviction from taking that 4 An offender may, under the Act, be relieved of numerous civil and criminal disabilities (e.g., use of prior conviction as basis for enhancement, Tuten v. United States (1983) 460 U.S. 660; as basis for firearms offense, United States v. Fryer (6th Cir. 1976) 545 F.2d 11; as basis for deportation, Mestre Morera v. United States Immigration and Naturalization Service (1st Cir. 1972) 462 F.2d 1030; and numerous other disabilities, cf. Doe v. Webster, supra, 606 F.2d at 1233-1234, and United States v. Doe (1st Cir. 1984) 732 F.2d 229, 232). 5 Any implication to the contrary in 63 Ops.Cal.Atty.Gen., supra, 598-599, is herewith disapproved. 5. 87-1203 fact into consideration. It has been held in this regard that an offender may not rely upon the Act as a basis of concealment from prospective employers. As stated in United States v. Doe (11th Cir. 1984) 747 F.2d 1358, 1359, quoting from United States v. Doe, supra, 732 F.2d at 231: "The legislative history of the Act reveals that section 5021(a) 'was not contemplated as a method of concealing the fact of conviction from employers, but rather as a way of opening up job opportunities to youth offenders in positions which, for reasons of company policy, government regulation, or otherwise, would not be available for ex- convicts.'" Thus, concluded the court, ". . . we read the set-aside provision as eliminating any legal disabilities that might flow from a conviction, but not as helping a youth offender conceal his past or lie to prospective employers." (United States v. Doe, supra, at 232.) While other courts have concluded that the Act requires expungement of the record of conviction and enables the offender to "legally reply in the negative to any and all questions concerning his former conviction" (see Doe v. Webster, supra, 606 F.2d at 1234, 1244, and cases cited, n. 66), we view the balanced approach adopted by the court in United States v. Doe, supra, 231-232, as most consistent with the congressional text. In any event it is assumed for purposes of this analysis that the state is aware of the conviction, whether by virtue of an admission or otherwise. While Government Code section 1029 has been removed as a legal barrier, an employer is not prohibited by the Act from exercising its own judgment respecting the fact of conviction as well, perhaps, as the circumstances surrounding the conduct which gave rise to the conviction. It is concluded that a person whose felony conviction has been set aside pursuant to the Act is eligible for employment in this state as a peace officer. However, the conviction may be considered as a basis for an employment decision. ***** 6. 87-1203

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127472/

OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ______________________________________ OPINION : : No. 89-603 of : : SEPTEMBER 20, 1989 JOHN K. VAN DE KAMP : Attorney General : : CLAYTON P. ROCHE : Deputy Attorney General : : ______________________________________________________________________________ THE HONORABLE JAMES P. FOX, DISTRICT ATTORNEY, SAN MATEO COUNTY, has requested an opinion on the following question: Is rule 19 of the San Mateo Municipal Court valid? CONCLUSION Rule 19 of the San Mateo Municipal Court requiring the prosecuting attorney to file two copies of the police, arrest and crime reports with the court in all criminal cases is void because it conflicts with state statutes. ANALYSIS On July 1, 1989 the San Mateo Municipal Court adopted rule 19, to be effective on January 1, 1990. The rule requires the prosecuting attorney at the time of the filing of a criminal complaint or other charging document to concurrently file two copies of the police, arrest and crime reports with the clerk, which will be lodged in the file. If unavailable at that time, such documents are to be filed within two days, but in any event no later than the first appearance or arraignment of the defendant. At the time of the first appearance of the defendant, one copy is to be delivered to the defendant or counsel. Monetary sanctions are prescribed for failure to comply with the rule in an amount to compensate the defendant for the costs of otherwise obtaining or copying such reports, not to exceed $250.00.1 1 Rule 19 provides in full: "(a.) In all felony and misdemeanor matters, the prosecuting attorney shall deliver to the Clerk of the Court, at the time of filing the complaint or other charging document, two (2) copies of the police, arrest, and crime reports, which shall be lodged by the Clerk in the file. If unavailable to the prosecuting attorney at that time, the reports must be delivered within two days thereafter, but in any event no later 1. 89-603 Rule 19 is similar to and clearly patterned upon section 1430 of the Penal Code, and a virtually identical portion of section 859 of that code. These require the prosecuting attorney either to deliver to the defendant or counsel upon the first court appearance of counsel (or upon a determination by the court that the defendant can represent himself or herself) the police, crime and arrest reports or to make such reports available for inspection and copying. If such reports are not available at that time, they are to be delivered within two calendar days. No monetary sanctions are imposed and the sanction of dismissal is specifically prohibited.2 The issue presented is whether, in view of the provisions of sections 859 and 1430 of the Penal Code, rule 19 of the San Mateo Municipal Court is valid. We conclude that the rule is invalid. Section 68070 of the Government Code provides: "Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council. Such rules shall not: than the date of the first appearance, or arraignment, of the defendant. Portions of those reports containing privileged information need not be disclosed so long as the remainder of the reports include a notice that privileged information has not been disclosed. "(b.) At the time of the first appearance, one copy of the police, arrest, and crime report shall be furnished to the defendant or counsel. "(c.) The failure by a prosecuting attorney to deliver the copies of the reports to the Clerk of the Court shall result in the imposition of monetary sanctions by the court, payable to the defendant or counsel for the defendant by the prosecuting attorney, or the arresting agency, or both, in such amount as to compensate the defendant or counsel for the reasonable cost of otherwise obtaining or copying such report. In no event shall the sanction as to any one defendant in any one case be less than $5, nor more than $250." (Adopted July 1, 1989; to be effective January 1, 1990) 2 Section 1430 provides as follows: "The prosecuting attorney shall deliver to, or make accessible for inspection and copying by, the defendant or counsel, copies of the police, arrest, and crime reports, upon the first court appearance of counsel, or upon a determination by a magistrate that the defendant can represent himself or herself. If unavailable to the prosecuting attorney at the time of that appearance or determination, the reports shall be delivered within two calendar days. Portions of those reports containing privileged information need not be disclosed if the defendant or his or her counsel has been notified that privileged information has not been disclosed. If the charges against the defendant are dismissed prior to the time the above-mentioned documents are delivered or made accessible, the prosecuting attorney need not deliver or make accessible such documents unless otherwise so compelled by law. The court shall not dismiss a case because of the failure of the prosecuting attorney to immediately deliver copies of the reports or to make them accessible for inspection and copying." 2. 89-603 "(a) Impose any tax, charge, or penalty upon any legal proceeding, or for filing any pleading allowed by law. "(b) Give any allowance to any officer for services." (Emphasis added.) Section 68070 of the Government Code is a legislative confirmation of "[t]he power inherent in courts of record to make rules of procedure which do not conflict with constitutional or legislative provisions." (Albermont Petroleum, Ltd. v. Cunningham (1960) 186 Cal. App. 2d 84, 89.) Or as stated relatively recently by our Supreme Court in the last of a series of cases ruling upon the validity of court rules on when supporting papers for a motion for summary judgment must be filed: "We agree with the view expressed in Shadle [Shadle v. City of Corona (1979) 96 Cal. App. 3d 173] and Kapitanski [Kapitanski v. Von's Grocery Co. (1983) 146 Cal. App. 3d 29, 32-33] that in the absence of legislative direction to the contrary courts may adopt local rules with the force of law and that reasonable local rules limiting the time to file opposition to the summary judgment motion were not precluded by former Code of Civil Procedure section 437c. . . ." (Mann v. Cracchiolo (1985) 38 Cal. 3d 18, 29. Emphasis added, footnote omitted.) Moving from the general to the more specific, we note that Rule 19 relates to criminal discovery. (See People v. Broome (1988) 201 Cal. App. 3d 1479, 1487 stating: "Some [criminal] discovery is now a matter of statutory right. For example, Penal Code section 859 . . . [and] (Pen. Code § 1430)".) Significantly, in this area of criminal procedure, the courts have cautioned as follows: "However, the 'exercise of a judicial power over criminal discovery which inheres in courts when the Legislature is silent must be tempered and restrained when the Legislature has spoken.' (People v. Municipal Court (Runyan), supra, 20 Cal.3d at p. 528.) Inherent judicial powers should not be exercised in such a manner as to nullify existing legislation or frustrate legitimate legislative policy." (People v. Jordan (1983) 142 Cal. App. 3d 628, 635, emphasis added.) We would also note that only recently were the courts' inherent powers to prescribe criminal discovery even extended to the preliminary hearing stage of a criminal proceeding. (See Holman v. Superior Court (1981) 29 Cal. 3d 480.) Conversely, however, "[i]t is true that a [court] rule inconsistent with a statute can have no validity; but the mere fact that the rule goes beyond the statutory provision does not make it inconsistent therewith." (Butterfield v. Butterfield (1934) 1 Cal. 2d 227, 228.) With these general principles in mind we now compare rule 19 with sections 859 and 1430 of the Penal Code. In our view rule 19 (1) conflicts with these sections, (2) essentially nullifies their operation, and (3) violates the direction that where the Legislature has entered an area of criminal discovery, the courts prescribing discovery should act in a tempered and restrained manner. We perceive the conflict as follows. Rule 19 requires the production of police, arrest and crime reports at an earlier stage of the proceeding than does the Penal Code. Additionally, rule 19 requires the prosecuting attorney to copy and provide the prescribed reports for the benefit of the defendant whereas the Penal Code gives the prosecuting attorney the option to either provide these documents to the defendant or make them available for inspection and copying. Rule 19 thus takes away from the prosecutor the latter option which the Legislature has expressly granted. Finally, rule 3. 89-603 19 provides monetary sanctions for failure to provide the prescribed documents which are to defray the costs of the defendant later obtaining these documents. The Penal Code, however, provides no such sanctions. Rule 19 thus shifts the costs of discovery from the defendant to the prosecuting attorney, and ultimately the county. Thus rule 19 conflicts with the Penal Code as to (1) the time for production of the documents, (2) the procedure for producing these documents and (3) the costs of their production. Rule 19 does so despite "legislative direction to the contrary." (See Mann v. Cracchiolo, supra.) In addition to the foregoing conflicts, we believe rule 19 essentially nullifies sections 859 and 1430 of the Penal Code. By complying with the provisions of rule 19 at the "charging" stage of the criminal proceeding, the prosecuting attorney will have nothing left to do pursuant to sections 859 and 1430 of the Penal Code at the "first appearance" stage of the proceeding. The defendant will already have the documents required to be produced under the Penal Code pursuant to rule 19. Such a nullification of the Penal Code provisions is contrary to the admonition of our appellate courts that "[i]nherent judicial powers should not be exercised in such a manner as to nullify existing legislation." (People v. Jordan, supra.) Finally, rule 19 mandates criminal discovery at the arraignment stage of the criminal proceeding. In our view this is also contrary to court's admonition in People v. Jordan, supra, quoting from Runyon, that inherent judicial power "over criminal discovery . . . must be tempered and restrained when the Legislature has spoken." This is particularly true when one considers that it is only recently that court imposed criminal discovery has been sanctioned at the preliminary hearing stage of a criminal proceeding. (Holman v. Superior Court, supra.) Although there arguably may be sound policy reasons for rule 19, we believe that as to both the timing and procedure to be followed with respect to the disclosure of police, arrest and crime reports, the Legislature has already set such policy by its enactments in Penal Code sections 859 and 1430.3 In short, although courts may go beyond a legislative enactment in prescribing rules (Butterfield v. Butterfield, supra), in our opinion rule 19 does more than this. In our view, it does not supplement the Penal Code provisions, it supplants them. Accordingly, we conclude that rule 19 is invalid.4 * * * * 3 We are informed that the policy reasons for the rule are to ensure that all police departments in the county file reports with the District Attorney on a timely basis, to facilitate defense counsel in obtaining such reports instead of having to copy them, and in anticipation of the extension of speedy trial rules to misdemeanors handled in municipal court. Conversely, the district attorney points out that with his caseload the court would be requiring his office to supply about 200,000 pages of copies per year, with no provision in his budget for the labor or materials involved. 4 Because of our conclusions herein, we need not nor do we determine whether the Municipal Court has the authority to prescribe sanctions absent legislative authorization, or whether the prescribed sanctions constitute a "charge" or "penalty" within the prohibitions of section 68070 of the Government Code. 4. 89-603

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/7295069/

Petition for certification denied.

01-03-2023

07-25-2022

https://www.courtlistener.com/api/rest/v3/opinions/4143656/

OFFICE OF THE AltY)RNEY C-L OF 3ZXAR AUSNN -c.- -- . EonorableLea Brady, Comlsdoher DopaaFtnmltar TiauuQ Atlstln, Ibra8 Thlewlll aoknowl Ceptenber6, 1940 wheozll tmJ depertponbthe to “The tl0et1on8 pro~o6 nere de- . si.snedto 8 Eu oft inionxsthn relatlvoto the suPerv%sion~oS bank& instltutlons~  bankcln~ praotims and lonotary polic~os gmordlp, The object aocsllrq-;ly *XCSto aS-.to,xblo Cxsffblontinio-zi~noil u$m Cfchtn bzzo nationallo&S.ation ona to faoilitm coopaz~tionbotwaenthe stat0 ta.n!dzgayottxl2nd the nfmonal bonkzg q@ea. ~:ooClo5n4otcy, tho b!&?oZkiM8Of ZhthLc~WOj90%Oai3Ot be m?r08t~kdi0a. xt LO csaentialthat the inarmtion dcrivodfros thosa . c;uestlonndro5 sh0ui~'coAsti25i8h4a aa that nuoh %nfornatlo&shouldba aocurato. xt is the thou&t of t3a soYQr5latis; . . slonorsaf %nhln& dth vi!mzf have hd oontaot&tit it vmld be to tho bostln- taroat of the state b#Wq by~tor~that- ~t.haSOquw3tfons,lnsos~ ox iu pofis:ble, . shouldbe anccceredharwniouely,an~ . thot a ~onfe~noe to that on4 ehaild be held. The Sat&ma1 iifwxlntion0: ~upervlr;ors'o~Stat0 Zwlu3 is aa organ- . izationof the b,ankLn& coonlseionors OS! th3 sev9ralstltoe; Fonaorlpthe aauk- . That ‘Asaooiation has it8 annual nea&g on SeptmmbQr I.8 6t Fdohamlla . Vlr&nla,aad due tothi Caatthnti~ till.be atIxxu?edliymstOS the Bonkkg %mlssionar6 of the nation it haa boon dsolbd to holU a aonfarenoerelativeto the uostlondm at Rlcbti during thlg neete:g. X feel that it is to the in- . * ~toraetof the ?Sanldng Depertmmt of this State, and OF tha state b&k6 or~mkad un8or O?LPlaws, thnt x, OS 3aalring C&S- siomr, should attend this confere~i10e.* Xf it shouldbe held that the purpom of thii trip la not the ao~cmpUehic9ntot %tata buf3inoso dlreot- 17 conosrrdnp tha BankingOop5rtaacnt of tho Fit&e of C!a.cs,uhetherthe meet- is a noonwntion* within %lro. prohibitionoi the rider ~appendedto SonataIM.l X0. 427, $.otGof the 46th L%f$ti&atu~s, b0c0rrp0im&ea5aL w thmefore undertake to pass upon youk seuond question ilrot. ; . . .  &aorablsLss3ra&y,~ 3 . me posers and dutloe oi.theBcnkl~ Caxtie- sloeur are preaorlbodby L-w. l?eis oh?wcd b lew with tlieeu~rvlslon of oartalnolaeees0C flmumla f luetltu- tion8 in thie :.:tate, 88 banks bU.ildiEf; E. 1OGll &SsOofa- . tlona,ato. Xl6 duties In thke respoatam extwutiveor ed..nistrzitiv0, not legid.EtiVO, in OhnW3t0ra se h&S no powers or duties ems those-whlohem canisrmd by law, expresslyor by 3n~lloatlon. . Thb it&m to eenate91l.l30. 427, Aots of the 46th Lsgielaturo,providesin mrt as follcrasr Vo fhsveli~ sx~~~~sss shell bo lnourredby-anyonployeoor ony of the' deparrrtscente, or othm-eqenoleeOS the fgovcreuent,outsiCeof the boundarloe OS the tit&e of Texas, exceptfor Mete ., : bualnesedirectlyoonoornlnghis own departmentor tigenoy* * *.u w3mpt n5 OtlhoryMeepeolrlonll9 * exonptod,the provlnionsof this aot f&S11 albo s?)ply t0 d9L;srtr;odi hOdS and mdorc 0Z aomais~lons.N . %ere is no the exezptliei~of Wikhg Commfeeioner. *Statebusinessdlraotlyoonoorhle@ a Steto Uo- partzehtis that busluasewhich has an lmuedlete,rather than a remote,zeletionto the dlsohargciot tbo powore and. duties or suoh dapertmmt. The businessto be trmuicotodb7 you nt the mot- lu3 doecrlbcdhee no lexmdlctereletionto the dlooMr@e of yxlr funotlon02 cuporvlalonof flnIxlolol ltlstltutione in this mate. III itGOlf, it dOeI IlOt OOn6titUt9 the die- chars of any powor or duty In respectto.suohsupervlclon. mlthor is it oaloulatodor dcGlgmd, under the statesrjnts. eicdoin your loftor,In my res-peat to ~;ldor ootistyau in the dleohar.:eof my poem or duty imposedby low upon your depsrtient. -53tkmoioro hold that the trip aropoaod 1s not for "3tatebuslnosodirectlyconcornl~~ tho DonkfnG - De pertmnt, ThlF enewerrendersa reply to your rlrst quee- tian unn800050 -0vzikuP lB,1940 ' Youxnocrytruly .

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4023568/

2016 IL App (2d) 151148 No. 2-15-1148 Opinion filed August 10, 2016 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ FERRIS, THOMPSON, AND ZWEIG, LTD., ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 13-L-483 ) ANTHONY ESPOSITO, ) Honorable ) Thomas M. Schippers, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________ JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion. OPINION ¶1 Plaintiff, Ferris, Thompson, & Zweig, Ltd., and defendant, Anthony Esposito, had a longstanding work relationship. During that relationship, plaintiff referred a number of workers’ compensation clients to defendant in return for a portion of the attorney fees defendant received. Each such referral was evidenced by a written agreement that each of the parties and the clients signed. When defendant refused most recently to pay plaintiff pursuant to some of these agreements, plaintiff sued defendant. Defendant moved to dismiss, claiming that the agreements did not comply with Rule 1.5(e)(1) of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010) in that they did not expressly state that the parties assumed “joint financial 2016 IL App (2d) 151148 responsibility” in representing the clients. The trial court granted the motion to dismiss. We reverse and remand. ¶2 The relationship between the parties began sometime around 2007. In 2012, before this appeal arose, defendant refused to pay plaintiff pursuant to two referral agreements, and plaintiff sued defendant in circuit court for breach of contract. Defendant moved to dismiss, arguing that the Worker’s Compensation Commission, not the circuit court, had jurisdiction over the case. The trial court denied the motion, defendant appealed, and the trial court’s decision was affirmed by this court (see Ferris, Thompson, & Zweig, Ltd. v. Esposito, 2014 IL App (2d) 130129) and our supreme court (Ferris, Thompson, & Zweig Ltd. v. Esposito, 2015 IL 117443) (Ferris I). ¶3 While Ferris I was pending in this court, defendant refused to pay plaintiff pursuant to 10 other referral agreements. As a result, plaintiff filed a 10-count complaint against defendant. Attached to the complaint were the referral agreements executed in each case. These agreements, which were executed between 2007 and 2010, provided, like the agreements in Ferris I, that the clients had retained plaintiff and that plaintiff had contracted with defendant for defendant to pursue the clients’ workers’ compensation cases on their behalf. The agreements also outlined which services each attorney would provide, and each agreement was signed by plaintiff, defendant, and the client. Nowhere did the agreements state that the attorneys assumed “joint financial responsibility” for representing the clients. Ill. R. Prof’l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010). ¶4 Defendant moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), arguing, among other things, that the agreements were unenforceable. Specifically, defendant claimed that the agreements did not comply with Rule 1.5(e)(1) in that the agreements did not state that plaintiff and defendant agreed to assume “joint -2- 2016 IL App (2d) 151148 financial responsibility.” Ill. R. Prof’l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010). Plaintiff responded, claiming, among other things, that Rule 1.5(e), which governs referral agreements, does not mandate that a written referral agreement contain such an express statement. Ill. R. Prof’l Conduct (2010) R. 1.5(e) (eff. Jan. 1, 2010). ¶5 The trial court granted defendant’s motion. Plaintiff moved the court to reconsider, the court denied the motion, and this timely appeal followed. ¶6 At issue in this appeal is whether plaintiff’s complaint should have been dismissed. A section 2-615 motion to dismiss attacks the legal sufficiency of a pleading. Vernon v. Schuster, 179 Ill. 2d 338, 344 (1997). We review de novo an order granting a motion to dismiss under section 2-615. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). ¶7 Resolving whether defendant’s motion to dismiss should have been granted is problematic, because, unfortunately, defendant has not filed a brief on appeal. While we may not reverse summarily on that basis alone, we need not serve as defendant’s advocate or search the record for a basis upon which to affirm. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976); Orava v. Plunkett Furniture Co., 297 Ill. App. 3d 635, 636 (1998). As relevant here, unless the record is simple and the issues can be easily decided without the aid of an appellee’s brief, we may reverse “if the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record.” Talandis, 63 Ill. 2d at 133; see Orava, 297 Ill. App. 3d at 636. “ ‘Prima facie means, “at first sight, on the first appearance, on the face of it, so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.” [Citation.]’ ” Talandis, 63 Ill. 2d at 132 (quoting Harrington v. Hartman, 233 N.E.2d 189, 191 (Ind. App. 1968)). -3- 2016 IL App (2d) 151148 ¶8 We do not believe that the issue raised in this case can be easily decided. Therefore, we consider whether plaintiff’s brief establishes prima facie reversible error. We hold that it does. ¶9 In so holding, we must examine Rule 1.5(e). In interpreting Rule 1.5(e), we apply the same principles that we employ in construing a statute. In re Marriage of Nettleton, 348 Ill. App. 3d 961, 967 (2004). Our primary goal in construing a rule is to ascertain and give effect to the drafters’ intent. Id. The surest and most reliable indicator of the drafters’ intent is the language used in the rule. Macknin v. Macknin, 404 Ill. App. 3d 520, 530 (2010). Accordingly, when the language in the rule is clear and unambiguous, we must apply it as written, giving the rule’s language its plain and ordinary meaning. Id. However, if the rule is ambiguous, we may look beyond the rule’s language to discern the drafters’ intent, and we may consider the purpose of the rule and the evils that the rule was designed to remedy. People v. King, 349 Ill. App. 3d 877, 879 (2004). Moreover, when a rule is ambiguous, courts may look to the rule’s committee comments to ascertain the drafters’ intent. In re Estate of Burd, 354 Ill. App. 3d 434, 437 (2004). Regardless, whenever possible, we will avoid a construction that leads to absurd or unjust results, and we will presume that the drafters intended a sensible result rather than an absurd one. In re Marriage of Nettleton, 348 Ill. App. 3d at 967. Like a ruling on a motion to dismiss, we review de novo the construction of a rule. See In re Marriage of Webb, 333 Ill. App. 3d 1104, 1108 (2002). ¶ 10 Rule 1.5(e) provides: “A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer, or if the primary service performed by one lawyer is the referral of the client to -4- 2016 IL App (2d) 151148 another lawyer and each lawyer assumes joint financial responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable.” (Emphases added.) Ill. R. Prof’l Conduct (2010) R. 1.5(e) (eff. Jan. 1, 2010). ¶ 11 In ascertaining the meaning of Rule 1.5(e), we note that, in order for any fee-sharing agreement to be enforceable, the attorneys involved in the agreement must strictly comply with Rule 1.5(e). See Donald W. Fohrman & Associates, Ltd. v. Mark D. Alberts, P.C., 2014 IL App (1st) 123351, ¶ 41. For the purposes of this appeal, the question is whether strict compliance with Rule 1.5(e) occurs when a written referral agreement does not expressly state that the attorneys assume “joint financial responsibility” for representing the client. Ill. R. Prof’l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010). ¶ 12 At first sight, as plaintiff argues, the unambiguous language of Rule 1.5(e) does not provide that a written referral agreement must contain an express statement that the lawyers assume “joint financial responsibility” for representing the client. Id. Rather, Rule 1.5(e)(2), which mentions a writing, states that the writing must include only the client’s agreement to the “arrangement, including the share each lawyer will receive.” Ill. R. Prof’l Conduct (2010) R. 1.5(e)(2) (eff. Jan. 1, 2010). “[T]he share each lawyer will receive” (id.) seems to require the writing to show that “the division [of fees] is in proportion to the services performed by each lawyer,” which is mentioned in Rule 1.5(e)(1) (Ill. R. Prof’l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010)). If the drafters had wanted the writing to expressly provide also that the attorneys assume “joint financial responsibility,” as is provided also in Rule 1.5(e)(1) (id.), they could have -5- 2016 IL App (2d) 151148 so stated in Rule 1.5(e)(2). Reading into Rule 1.5(e)(2) a requirement that the writing must expressly provide that the lawyers assume “joint financial responsibility” would violate a cardinal rule of construction. See State Farm Mutual Automobile Insurance Co. v. Hayek, 349 Ill. App. 3d 890, 892 (2004) (in construing a court rule, “courts may not alter the rule or read into it exceptions or limitations, no matter how beneficial or desirable the result”). ¶ 13 Moreover, even if the language of Rule 1.5(e) is seen as ambiguous, we believe that the last-antecedent rule, which should be employed only when the language is ambiguous, helps to illustrate what is arguably the proper construction of Rule 1.5(e). Pursuant to the last-antecedent rule, “ ‘relative or qualifying words, phrases, or clauses are applied to the words or phrases or clauses immediately preceding them and are not construed as extending to or including other words, phrases, or clauses more remote,’ ” unless the language requires such an extension. Department of Transportation v. Singh, 393 Ill. App. 3d 458, 465 (2009) (quoting In re E.B., 231 Ill. 2d 459, 467 (2008)). Applying that rule here shows that the only thing that the written referral agreement must contain is an express statement that the client agrees to the referral and the proportion of attorney fees that each attorney involved in the referral agreement will receive. ¶ 14 The committee comments to the rule seem to support this conclusion. The comments provide that “[j]oint financial responsibility for the representation entails financial responsibility for the representation as if the lawyers were associated in a general partnership.” Ill. R. Prof’l Conduct (2010) Rule 1.5(e) cmt. 7 (eff. Jan. 1, 2010). That is, like lawyers in a general partnership, the attorneys involved in a referral agreement agree that, if one of them is sued by the client for legal malpractice, the other attorney is also liable. See In re Storment, 203 Ill. 2d 378, 392 (2002) (concluding that the term “[same] legal responsibility” (internal quotation marks omitted) in a prior version of Rule 1.5(e) “indicates that the rule is concerned with the financial -6- 2016 IL App (2d) 151148 responsibility of the referring lawyer for potential malpractice actions against the receiving lawyer”); see also 805 ILCS 206/305(a) (West 2014) (“A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.”). This “joint financial responsibility” does not concern the client and would apply regardless of whether it was provided for in the written referral agreement. Accordingly, it makes sense that the term “joint financial responsibility” would not need to be expressly included for in the written referral agreement the attorneys have with the client. ¶ 15 Finally, a review of the history of Rule 1.5(e) suggests that the written referral agreement need not contain an express statement that the attorneys agree to assume “joint financial responsibility” in representing the client. Rule 1.5(e) arose from section 2-107(a) of the Illinois Code of Professional Responsibility (Ill. S. Ct. Code of Prof’l Res., canon 2, R. 2-107 (eff. July 1, 1980)). That section provided in part: “(a) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm, unless (1) the client consents in a writing signed by him to employment of the other lawyer, which writing shall fully disclose (a) that a division of fees will be made, (b) the basis upon which the division will be made, including the economic benefit to be received by the other lawyer as a result of the division, and (c) the responsibility to be assumed by the other lawyer for performance of the legal services in question; -7- 2016 IL App (2d) 151148 (2) the division is made in proportion to the services performed and responsibility assumed by each, except where the primary service performed by one lawyer is the referral of the client to another lawyer and (a) the receiving lawyer fully discloses that the referring lawyer has received or will receive economic benefit from the referral and the extent and basis of such economic benefit and (b) the referring lawyer agrees to assume the same legal responsibility for the performance of the services in question as if he were a partner of the receiving lawyer; and (3) the total fee of the lawyers does not exceed reasonable compensation for all legal services they rendered to the client.” (Emphases added.) Id. ¶ 16 Thereafter, in August 1990, the law was modified. The modification provided: “(f) Except as provided in Rule 1.5(j), a lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm, unless the client consents to employment of the other lawyer by signing a writing which discloses: (1) that a division of fees will be made; (2) the basis upon which the division will be made, including the economic benefit to be received by the other lawyer as a result of the division; and (3) the responsibility to be assumed by the other lawyer for performance of the legal services in question. (g) A division of fees shall be made in proportion to the services performed and responsibility assumed by each lawyer, except where the primary service performed is the referral of the client to another lawyer and -8- 2016 IL App (2d) 151148 (1) the receiving lawyer discloses that the referring lawyer has received or will receive economic benefit from the referral and the extent and basis of such economic benefit, and (2) the referring lawyer agrees to assume the same legal responsibility for the performance of the services in question as would a partner of the receiving lawyer. (h) The total fee of the lawyers shall be reasonable.” (Emphases added.) Ill. R. Prof’l Conduct (1990) R. 1.5(f)-(h) (eff. Aug. 1, 1990). ¶ 17 An examination of the history of Rule 1.5(e) reveals that, from the beginning, referral agreements had to be in writing. However, nothing in any of the prior versions of Rule 1.5(e) indicated that the attorneys involved in the referral agreement must expressly state that they will assume “joint financial responsibility” for representing the client. Given that the last-antecedent rule mandates that the term “writing” modify the clause immediately preceding it, and as the term “joint financial responsibility” does not immediately precede the term “writing” in any of the variations of Rule 1.5(e), it is arguable that the written referral agreement need not contain an express statement that the attorneys involved in the referral agreement assume “joint financial responsibility” for representing the client. See Department of Transportation, 393 Ill. App. 3d at 465. ¶ 18 The history of Rule 1.5(e) is also relevant for another reason. In contrast to what plaintiff suggests, a prior version of the rule might apply here. Given that the referral agreements were executed between 2007 and 2010, it might well be that the August 1990 version applies to all the agreements except the ones executed in 2010. Compare Paul B. Episcope, Ltd. v. Law Offices of Campbell & Di Vincenzo, 373 Ill. App. 3d 384, 394 (2007) (a “supreme court rule is applied -9- 2016 IL App (2d) 151148 retroactively, even though it was different from its predecessor rule”), with Naughton v. Pfaff, 2016 IL App (2d) 150360, ¶¶ 58-59 (discussing when supreme court rules apply retroactively). However, that said, we observe that, regardless of which version of Rule 1.5(e) applies, it appears that a written referral agreement might not need to contain an express statement that the attorneys involved assume “joint financial responsibility” for representing the client. ¶ 19 In reaching our conclusion, we recognize that one court, in addressing a different issue under Rule 1.5(e), determined that a written referral agreement must contain an express statement that the attorneys will assume “joint financial responsibility.” See Fohram, 2014 IL App (1st) 123351, ¶ 55 (“[W]e would not find there was substantial compliance with Rule 1.5(e) in this case where the attorney-client agreements did not inform the clients of the fee-sharing arrangement based on referrals, the exact split in fees, and that [the attorneys] had assumed equal financial responsibility.”). The trial court here relied on Fohram in finding that the written referral agreements executed in this case were unenforceable. ¶ 20 Given Fohram, we see how an argument could be made that the term “joint financial responsibility” must be contained in a written referral agreement. However, as outlined above, we believe that plaintiff has presented a prima facie case of error. Because plaintiff has presented a prima facie error on this point, we will not address the other issues it raises on appeal in support of its claim that the trial court should have denied defendant’s motion to dismiss. ¶ 21 Because we find that plaintiff’s brief on appeal demonstrates prima facie error, we reverse the judgment of the circuit court of Lake County and remand the case. ¶ 22 Reversed and remanded. - 10 -

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4023573/

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA STATE FARM MUTUAL NOT FINAL UNTIL TIME EXPIRES TO AUTOMOBILE INSURANCE FILE MOTION FOR REHEARING AND COMPANY, DISPOSITION THEREOF IF FILED Appellant, CASE NO. 1D16-2075 v. JENNIFER ANN HAWKINSON AND BRIAN REYNOLDS PETERS, Appellees. _____________________________/ Opinion filed August 11, 2016. An appeal from an order of the Circuit Court for Duval County. Tyrie W. Boyer, Judge. Rhonda B. Boggess and Gina P. Grimsley, of Taylor, Day, Grimm & Boyd, Jacksonville, for Appellant. Benjamin E. Richard, William A. Bald and Raymond P. Reid, Jr., of Pajcic & Pajcic, P.A., Jacksonville, for Appellees. PER CURIAM. Appellant’s motion to determine jurisdiction is granted. The Court has determined that it lacks jurisdiction to review the order on appeal. See Workmen’s Auto Ins. Co. v. Franz, 24 So. 3d 638, 640 (Fla. 2d DCA 2009) (concluding that order awarding summary judgment to insureds on issue of entitlement to uninsured motorist coverage was not a partial final judgment where related claim for uninsured motorist benefits remained pending). Accordingly, the appeal is dismissed. Appellee’s motion to dismiss the appeal is denied as moot. ROBERTS, C.J. and ROWE, J., CONCUR; MAKAR, J., DISSENTS WITH OPINION. 2 MAKAR, J., dissenting. After a separate bench trial, a final judgment was entered on the discrete claim in this case that the insurer was required to provide coverage under its policy for injuries occurring to the plaintiff, who was determined to be a “relative” under her parents’ policy. Pending is a separate trial on liability and damages against the driver, and possible recovery against the insurer under the policy. The insurer appeals, claiming the final judgment is appealable as a “partial final judgment” under Rule 9.110(k), Florida Rules of Appellate Procedure. (“A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.”). Because the discrete issue of coverage is separate and distinct from the remaining claim for damages, jurisdiction under subsection (k) exists. On somewhat similar facts, the Second District has found this issue to be a close question, holding that jurisdiction was lacking because of the procedural posture in that case; because the claims for insurance coverage and damages were included in the same count, the court viewed the coverage and damages issues as “sufficiently interrelated so that this order cannot be reviewed as a partial final judgment.” Workmen’s Auto Ins. Co. v. Franz, 24 So. 3d 638, 640 (Fla. 2d DCA 2009). But had a declaratory judgment action “been filed separately” to resolve the coverage issue, the court concluded that jurisdiction would exist. Id. (“We can only 3 explain that the procedural posture of this case is different.”). It makes little sense to base jurisdiction on whether two lawsuits are filed versus one; the better approach is to determine the extent of dependency between the coverage and damages claims. Here, the coverage and damages issues were deemed to be independent matters, so much so that a separate bench trial was held first on the former and a discrete “final judgment” entered; no overlap exists between the issues and evidence, each focusing on entirely different issues. Accordingly, the insurer’s appeal should be allowed to proceed. 4

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4127772/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT July 22, 2013 The Honorable Elton R. Mathis Opinion No. GA-1014 Waller County Criminal District Attorney 645 12th Street Re: Whether counties operating under the Hempstead, Texas 77445 County Road Department System may accept money from private entities in exchange for agreeing to repair or improve county roads designated by the private entities (RQ-1111-GA) Dear Mr. Mathis: You inquire about the authority of Waller County (the "County") to accept monetary donations from private entities in exchange for maintenance of roads designated by the entities. 1 In describing a proposed agreement, you state that "[t]here are several private companies that wish to donate money for materials to the county to repair and improve a particular public road as designated by the private companies." Request Letter at 1. You tell us that "[i]n consideration for the donations, the county would agree to expend county labor and equipment to work on the specific roads under the agreement and to complete the work in a set amount of time." !d. You indicate that the County operates under subchapter D, chapter 252, of the Transportation Code, which provides for the County Road Department System. !d. at 2. You ask whether the County may make use of donation provisions from the other subchapters of chapter 252. See Request Letter at 3. You also ask generally about the County's authority to enter into the proposed agreement. See id. Subchapter D, chapter 252, is one of four optional, alternative statutory systems for the administration of county roads. See TEX. TRANSP. CODE ANN.§§ 252.301-.313 (West 1999 & Supp. 2012); see also id. §§ 252.001-.216 (West 1999) (setting out three other systems for county road administration). The two donation provisions to which you refer-sections 252.109 and 252.214-provide for the county to accept "donations of labor, money, or other property to aid in building or maintaining roads in the county." !d. §§ 252.109, .214. Contained in 1 See Letter from Honorable Elton R. Mathis, Waller Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 14, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter"). The Honorable Elton R. Mathis- Page 2 (GA-1014) subchapters B and C respectively, sections 252.109 and 252.214 do not apply to a county operating under subchapter D, and there is no similar provision in subchapter D. See generally id. §§ 252.301-.313 (West 1999 & Supp. 2012). Sections 252.109 and 252.214 are evidence that the Legislature knows how to authorize a county to accept donations with respect to county roads. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). The Legislature has not done so for counties that operate under subchapter D. See PPG Indus. v. JMB!Houston Ctrs. Partners Ltd., 146 S.W.3d 79, 84 (Tex. 2004) (noting that a statute's silence can be significant and that an analysis begins with presumption that the Legislature knows how to enact what it intends). Absent such express provision, we cannot conclude that the Transportation Code is a source of authority for the County to accept donations for the maintenance and construction of county roads? The Local Government Code, however, separately provides that any county commissioners court "may accept a gift, grant, [or] donation ... of money or other property on behalf of the county for the purpose of performing a function conferred by law on the county or a county officer." TEX. Loc. Gov'T CODE ANN. § 81.032 (West 2008); see TEX. Gov'T CODE ANN.§ 311.016(1) (West 2013) ('"May' creates discretionary authority or grants permission or a power."). Maintenance of a county road is a function conferred on the commissioners court by statute. TEX. TRANSP. CODE ANN. §§ 251.003(a), 252.302(a)-(b) (West 1999). Under section 81.032, a commissioners court has discretionary authority to accept a gift, grant, or donation of money for the purpose of maintaining county roads. TEX. Loc. Gov'T CoDE ANN. § 81.032 (West 2008). You suggest that section 81.032 of the Local Government Code is inapplicable. See Request Letter at 3. You assert that the silence in subchapter D, chapter 252 of the Transportation Code is a more specific indication of legislative intent that prevails over the general provision in section 81.032. See id. We disagree. Absent a conflict between statutes there is no need to resort to the canon of statutory construction that a specific statute prevails over a general one. See TEX. Gov'T CoDE ANN. § 311.026 (West 2013). To conclude that a county operating under the County Road Department System is not authorized to accept donations pertaining to county roads as a county function under section 81.032 because of the absence of express authority to accept donations in subchapter D ignores the existence and plain language of section 81.032. Courts '"do not lightly presume that the Legislature may have done 2 You state that a prior opinion from this office, Texas Attorney General Opinion GA-0345 (2005), seems to suggest that the County could incorporate donation provisions from the other subchapters of chapter 252. Request Letter at 3. Because the request letter seeking that opinion did not indicate under which system Waller County operated and because it spec ifi ally raised section 252.214 in subchapter C, opinion GA-0345 assumed the County operated under that s ubchapter and based its conclusions on that assumption. See Tex. Att'y Gen. Op. No. GA-0345 (2005) at 2 n.5. The pinion is correctly dec ided g iven lhe a sumption. However, to the extent that assumption was incorTect, we clarify the opinion with our conclusion her . The Honorable Elton R. Mathis - Page 3 (GA-1014) a useless act"' or enacted a meaningless statute. Tex. Lottery Comm 'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637 (Tex. 2010) (citation omitted). You also suggest that the conditions attached to the proposed agreement are such that the proffered money is not a gift, grant, or donation. See Request Letter at 6-7 (arguing that money offered to induce the County's agreement regarding the roads is akin to consideration to support contractual obligations and is not a voluntary gift). This office has previously concluded that a commissioners court does have authority to accept a donation for a specific county road subject to reasonable conditions so long as the conditions are not inconsistent with other law. See Tex. Att'y Gen. Op. Nos. GA-1010 (2013) at 2, GA-0359 (2005) at 3, JC-0073 (1999) at 2-3. Generally, the discretionary authority in section 81.032 includes the authority to evaluate whether money proffered to a county constitutes a gift as well as whether any conditions attached to a particular offer of money are reasonable and consistent with other law. See Tex. Att'y Gen. Op. No. GA-1010 (2013) at 2; see also Tex. Att'y Gen. Op. No. JC-0073 (1999) at 2- 3 (advising that the "availability of donated money for itnproving a road is one factor, but certainly not the only factor, for the court to consider in deciding whether ... to improve a particular county road"). A court has authority to disturb a commissioners court's decision to improve a particular county road where the commissioners court "has acted arbitrarily, capriciously, collusively, fraudulently, or otherwise in abuse of its discretion." Hooten v. Enriquez, 863 S.W.2d 522, 528 (Tex. App.-El Paso 1993, no writ). We caution that this discretion is not unfettered. A Texas court has stated that a commissioners court "cannot delegate" its decision-making power over improving public roads, "nor can it divest itself of such power by agreements in advance to exercise such discretion in any particular manner, and any agreement, the tendency of which is to preclude the court from a full and free exercise of its discretion as to the particular roads that were to be improved . . . would be against public policy." Grayson Cnty. v. Harrell, 202 S.W. 160, 163 (Tex. Civ. App.-Amarillo 1918, writ ref'd). Under this precedent, a written agreement with a private party that purported to obligate the County to maintain certain roads or conduct improvements on a certain schedule would be unenforceable. In addition, a prior attorney general opinion pertaining to donations under section 252.214 advised that "[i]n deciding whether ... to improve a particular county road, the commissioners court should evaluate all factors in terms of their contribution to the county road system as a whole" and that the "availability of donated money for improving a road is one factor, but certainly not the only factor, for the court to consider in deciding whether ... to improve a particular county road." Tex. Att'y Gen. Op. No. JC-0073 (1999) at 2-3. In sum, in counties operating under the County Road Department System, the county commissioners court has discretion, subject to judicial review, under section 81.032 of the Local Government Code to determine whether and under what conditions to accept monetary donations from private entities. While a county commissioners court may not delegate its decision-making power over improving public roads, it has the authority to accept donations subject to conditions so long as the conditions are reasonable and not inconsistent with other law. In deciding whether to accept any specific donation, the commissioners court should carefully evaluate all factors relevant to the improvement of any particular road. The Honorable Elton R. Mathis- Page 4 (GA-1014) SUMMARY In counties operating under the County Road Department System, the county commissioners court has discretion, subject to judicial review, under section 81.032 of the Local Government Code to determine whether and under what conditions to accept monetary donations from private entities. While a county commissioners court may not delegate its decision-making power over improving public roads, it has the authority to accept donations subject to conditions so long as the conditions are reasonable and not inconsistent with other law. In deciding whether to accept any specific donation, the commissioners court should carefully evaluate all factors relevant to the improvement of any particular road. DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER 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/4023531/

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit TENTH CIRCUIT August 11, 2016 Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 16-7012 v. (D.C. No. 6:04-00011-JHP-5) (E.D. Okla.) DANNY JAMES GOLDEN, Defendant-Appellant. ORDER AND JUDGMENT * Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. Mr. Danny James Golden was convicted of conspiracy to distribute and distribution of methamphetamine. He now appeals the district court’s denial of a motion for sentence reduction under 18 U.S.C. § 3582. Mr. Golden’s counsel filed a brief invoking Anders v. California, 386 U.S. 738 (1967) and moving to withdraw based on the absence of any reasonable * Oral argument would not be helpful in this appeal. As a result, we are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). grounds for appeal. We conclude that any appellate challenges would be frivolous. Thus, we grant the motion to withdraw and dismiss the appeal. I. Anders v. California Under Anders, attorneys can seek leave to withdraw from an appeal when they conscientiously examine a case and determine that an appeal would be frivolous. 386 U.S. at 744. To obtain leave to withdraw, an attorney must submit a brief to the client and the appellate court indicating any potential appealable issues based on the record. The client may then choose to submit arguments to the court. The [c]ourt must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Mr. Golden’s counsel filed a brief, moving to withdraw. We base our decision on the brief filed by defense counsel and the record on appeal. In reviewing the record, we engage in de novo review. See United States v. Kurtz, 819 F.3d 1230, 1233 (10th Cir. 2016) (“When counsel submits an Anders brief, our review of the record is de novo.”). II. Amendment to the Sentencing Guidelines Mr. Golden moved under § 3582(c)(2) for a sentence reduction on the ground that the sentencing guideline range had been lowered by the Sentencing Commission. But the amendment did not affect Mr. Golden’s 2 guideline range. In 2004, 1.5 kilograms of actual methamphetamine would trigger a base-offense level of 38. Through the amendment, the Sentencing Commission increased the quantity that would trigger a base-offense level of 38. But even with the increased threshold, Mr. Golden would still be tagged with a base-offense level of 38. As a result, he cannot reasonably challenge the sentence based on the amendment to the guidelines. III. Challenge to the Guideline Range Mr. Golden could also argue that his guideline range was incorrectly calculated based on facts not charged in the indictment or admitted in the plea. But this issue is not cognizable under § 3582(c)(2). This section simply authorizes reduction of a sentence based on an amendment to the guidelines, not correction of a sentence that was improper from the outset. United States v. Torres-Aquino, 334 F.3d 930, 941 (10th Cir.2003). IV. Conclusion We agree with Mr. Golden’s counsel that there are no reasonable grounds for appeal. Thus, we grant counsel’s motion to withdraw and dismiss the appeal. Entered for the Court Robert E. Bacharach Circuit Judge 3

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4023532/

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT August 11, 2016 _________________________________ Elisabeth A. Shumaker Clerk of Court CARL L. LESTER, Petitioner - Appellant, v. No. 16-3091 (D.C. No. 5:15-CV-03109-KHV) UNITED STATES OF AMERICA, (D. Kan.) Respondent - Appellee. _________________________________ ORDER AND JUDGMENT* _________________________________ Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. _________________________________ Carl Lester appeals the dismissal of his 28 U.S.C. § 2241 petition for lack of jurisdiction. We affirm. On March 16, 2010, Lester was sentenced to 120 months’ imprisonment. He filed two § 2255 motions, both of which were denied. He then filed a § 2241 petition in the district court advancing claims which the district court found had been raised in his previous § 2255 motions. The court ordered Lester to show cause why the § 2241 petition should not be dismissed for lack of jurisdiction. After considering * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Lester’s response, the district court dismissed the petition for lack of statutory jurisdiction. Lester timely appealed. Generally, a prisoner may not challenge the constitutionality of his sentence under § 2241 unless a § 2255 motion would be “inadequate or ineffective to test the legality of [the petitioner’s] detention.” Prost v. Anderson, 636 F.3d 578, 584 (10th Cir. 2011) (quoting § 2255(e)). It is the prisoner’s burden to show the inadequacy of § 2255. Prost, 636 F.3d at 584. “Failure to obtain relief under § 2255 does not establish that the remedy so provided is either inadequate or ineffective.” Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963). Rather, if “a petitioner’s argument challenging the legality of his detention could have been tested in an initial § 2255 motion . . . then the petitioner may not resort to . . . § 2241.” Prost, 636 F.3d at 584. Even construing Lester’s pro se filings liberally, see Garza v. Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010), he fails to argue that his claims could not have been raised under § 2255.1 Instead, he argues ineffective assistance of counsel during sentencing and challenges the district court’s adoption of the pre-sentence report. These issues can and should be addressed in a § 2255 motion. See United States v. Boigegrain, 155 F.3d 1181, 1186 (10th Cir. 1998) (“Normally, we require criminal defendants alleging ineffective assistance of counsel to obtain a ruling by a district 1 Lester does argue dismissal was improper under Trevino v. Thaler, 133 S. Ct. 1911 (2013). But Trevino held only that a federal court could excuse a petitioner’s default under state law of an ineffective assistance claim for purposes of a federal habeas corpus petition. Id. at 1921. 2 court on their argument by way of a motion pursuant to 28 U.S.C. § 2255.”); Freeman v. Davis, 414 F. App’x 163, 165, 166 (10th Cir. 2011) (unpublished) (§ 2255 is “the proper avenue” for a federal prisoner’s post-conviction allegation of factual error in the pre-sentence report). Lester’s challenge cannot be heard under § 2241. The judgment of the district court is AFFIRMED. Because Lester has failed to show the “existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised,” Buchheit v. Green, 705 F.3d 1157, 1161 (10th Cir. 2012), his motion to proceed in forma pauperis is DENIED. Entered for the Court Carlos F. Lucero Circuit Judge 3

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4023537/

08/09/2016 DA 15-0393 Case Number: DA 15-0393 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 189 STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM GEORGE ROSSBACH, Defendant and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Lake, Cause No. DC-01-60 Honorable James A. Manley, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Steven Eschenbacher, Lake County Attorney, Benjamin Anciaux, Deputy County Attorney, Polson, Montana Submitted on Briefs: May 25, 2016 Decided: August 9, 2016 Filed: __________________________________________ Clerk Chief Justice McGrath delivered the Opinion of the Court. ¶1 The Appellant, William George Rossbach (“Rossbach”), appeals from a 2015 judgment and sentence in the District Court for the Twentieth Judicial District, Lake County. We affirm. ISSUE PRESENTED ¶2 Did the District Court err in denying Rossbach’s motion to dismiss the revocation of his sentence pursuant to § 46-23-1012(2), MCA? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Rossbach pled guilty to a robbery in 2001. The District Court sentenced Rossbach to fifteen years at the Montana State Prison with eleven years suspended, subject to conditions. Since 2001 the District Court has revoked Rossbach’s sentence three times. The latest revocation occurred in May 2015 and is the basis for this appeal. ¶4 Rossbach was discharged to probationary supervision from the Crossroads Correctional Center in April 2014. Probation Officer Amy Rehbein (“Rehbein”) was familiar with Rossbach and testified to Rossbach’s initial attempts to comply with the conditions of his release. However, after using methamphetamines, Rossbach became unpredictable and violated several conditions of his probation. On March 4, 2015, Rehbein faxed an Authorization to Pick Up and Hold Probationer (also known as a “field warrant”) to the Lake County Detention Center. The field warrant included statements that detailed Rossbach’s probation violations and an authorization to arrest and hold him. Rossbach was arrested and placed in the Lake County Detention Center on March 6, approximately 36 hours after the field warrant was faxed to the detention center. The 2 Lake County attorney filed a formal petition to revoke in the District Court on March 12, 2015. ¶5 Rossbach filed a motion to dismiss the petition on the grounds that the State did not comply with the statutory procedure set forth in § 46-23-1012(2), MCA. The District Court denied the motion to dismiss at a hearing on May 6, revoked his probation and sentenced Rossbach to the Department of Corrections for four years with credit for time served. STANDARD OF REVIEW ¶6 We review a district court’s interpretation and application of a statute de novo. State v. Triplett, 2008 MT 360, ¶ 13, 346 Mont. 383, 195 P.3d 819. Our review of a conclusion of law is plenary; thus, we determine on appeal whether a district court’s application of the law is correct. State v. Johnson, 2001 MT 277, ¶ 7, 307 Mont. 317, 37 P.3d 701. DISCUSSION ¶7 Did the District Court err in denying Rossbach’s motion to dismiss the revocation of his sentence pursuant to § 46-23-1012(2), MCA? ¶8 In interpreting a statute this Court looks to the plain meaning of the language included therein. State v. Strong, 2015 MT 251, ¶ 13, 380 Mont. 471, 356 P.3d 1078 (citing Infinity Ins. Co. v. Dodson, 2000 MT 287, ¶ 46, 302 Mont. 209, 14 P.3d 487). We also follow Montana’s maxims of jurisprudence, which oblige us to disregard trifles, interpret the law reasonably, and avoid requiring idle acts. See §§ 1-3-223, -224, -233, MCA. 3 ¶9 Individuals on probation have diminished liberty interests and are subject to stark sanctions for violations of conditions of probation. See State v. Macker, 2014 MT 3, ¶ 9, 373 Mont. 199, 317 P.3d 150. Accordingly, § 46-23-1012(2), MCA, authorizes a probation officer to arrest a probationer without a warrant if the probationer has “in the judgment of the probation . . . officer, violated the conditions of probation.” Furthermore, “[a] written statement or oral authorization delivered with the probationer by the arresting officer to the official in charge of a detention center is sufficient warrant for the detention of the probationer if the probation and parole officer delivers the written statement within 12 hours of the probationer’s arrest.” Section 46-23-1012(2), MCA. ¶10 In this case, Rehbein faxed a written statement thirty-six hours before Rossbach was arrested and held in the Lake County Detention Center. Rossbach contends on appeal that the State did not follow the statutory procedure as stated in § 46-23-1012(2), MCA, because the written statement was not delivered to the detention center between the moment of his arrest and twelve hours later. He contends that the State did not comply with the plain meaning of the statute. ¶11 Implicit in Rossbach’s appeal is the suggestion that the District Court’s denial of his motion rises to the level of a Due Process violation. A revocation hearing is not a criminal trial, but a civil proceeding in which the “offender is not entitled to the full spectrum of rights and protections that exist in a criminal trial.” State v. Finley, 2003 MT 239, ¶ 31, 317 Mont. 268, 77 P.3d 193. Section 46-23-1012(2), MCA, is written so the “official in charge of a detention center” receives, no later than twelve hours after the arrest sufficient cause to hold the probationer. The statute does not require service of the 4 statement on the probationer. Section 46-23-1012(2), MCA. The purpose of the statute is to give the detention center timely written authority to hold the probationer, and does not impose an additional due process obligation upon the probation officer for the benefit of the defendant.1 The early delivery of the notice did not prejudice any of Rossbach’s rights. ¶12 While it is accurate that the specific language used in the statute requires delivery of the statement “within 12 hours of the probationer’s arrest,” nothing in the statute precludes the probation officer from filing an earlier notice. Section 46-23-1012(2), MCA. Considering the evident purpose of the statute, a reasonable construction of “within 12 hours” can accommodate the interpretation that the notice must be delivered no later than twelve hours after arrest.2 Statutory language should be interpreted so as to carry out its intended purpose. S.L.H. v. State Comp. Mut. Ins. Fund, 2000 MT 362, ¶ 16, 303 Mont. 364, 15 P.3d 948 (citing United States Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S. Ct. 2173, 2182 (1993)). ¶13 Rossbach’s analysis suggests that if Rehbein had delivered the same field warrant a second time twelve hours after his arrest rather than thirty-six hours before, the State would have complied with the statute. Such an interpretation of § 46-23-1012(2), MCA, 1 If the field warrant is not delivered within twelve hours following the arrest, the detention facility would be free to release the prisoner. 2 The word “within” serves to limit the length of time during which an action is allowable. The term is often used this way in statutes of limitations. See, e.g., Cobb v. Saltiel, 2009 MT 171, ¶¶ 26-27, 350 Mont. 501, 210 P.3d 138; Anderson v. BNSF Ry., 2015 MT 240, ¶ 9, 380 Mont. 319, 354 P.3d 1248; Johnston v. Centennial Log Homes & Furnishings, Inc., 2013 MT 179, ¶ 61, 370 Mont. 529, 305 P.3d 781 (J. McKinnon dissenting). Such statutes require a complaint to be filed no later than the end date provided. 5 is unreasonable, serves no evident purpose, and would require an idle act which we will not read into to the statute. Sections 1-3-223, -224, -233, MCA. CONCLUSION ¶14 For the foregoing reasons, we cannot agree that the District Court erred in denying the motion to revoke the petition. The District Court’s Judgment of May 7, 2015, is affirmed. /S/ MIKE McGRATH We Concur: /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE 6

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4127476/

OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ______________________________________ OPINION : : No. 89-301 of : : AUGUST 31, 1989 JOHN K. VAN DE KAMP : Attorney General : : RODNEY O. LILYQUIST : Deputy Attorney General : : ______________________________________________________________________________ THE COMMISSION ON TEACHER CREDENTIALING has requested an opinion on the following questions: 1. May information disclosed at an executive session of the Commission on Teacher Credentialing to the designee of the Superintendent of Public Instruction be discussed by the designee with the Superintendent without the authorization of the Commission? 2. May information disclosed at an executive session of the Commission on Teacher Credentialing be discussed by the Superintendent of Public Instruction with legal counsel for the Department of Education without the authorization of the Commission? CONCLUSIONS 1. Information disclosed at an executive session of the Commission on Teacher Credentialing to the designee of the Superintendent of Public Instruction may be discussed by the designee with the Superintendent without the authorization of the Commission. 2. Information disclosed at an executive session of the Commission on Teacher Credentialing may be discussed by the Superintendent of Public Instruction with legal counsel for the Department of Education without the authorization of the Commission. ANALYSIS The Commission on Teacher Credentialing ("Commission") is a state administrative body with duties that include (1) adopting standards for the accreditation of teacher preparation programs, (2) establishing professional standards, (3) determining the scope of teacher credentials, and (4) specifying the requirements for obtaining and renewing various types of teacher credentials, certificates, and permits. (Ed. Code, § 44225; see 66 Ops.Cal.Atty.Gen. 212 (1983); 54 1. 89-301 Ops.Cal.Atty.Gen. 257 (1971).)1/ The Commission is also responsible for denying, suspending, and revoking teacher credentials pursuant to specified procedures. (§§ 44242-44246; see 61 Ops.Cal.Atty.Gen. 353, 363-364 (1978).) The two questions presented for resolution concern confidential information that is disclosed during an executive session of the Commission held to consider the revocation of a teacher credential. Attending the session is a designee of the Superintendent of Public Instruction ("Superintendent"). May the designee disclose the information to the Superintendent without the authorization of the Commission? If the designee may do so or if the Superintendent is personally present during the executive session, may the Superintendent disclose the information to the legal counsel for the Department of Education ("Department") without the authorization of the Commission? We conclude that the designee may disclose the information to the Superintendent and the Superintendent may disclose the information to the Department's legal counsel without the authorization of the Commission. The Legislature has established the Commission under the provisions of section 44210, which states in part: "There is hereby established in the state government the Commission on Teacher Credentialing, to consist of 15 voting members, 14 of whom shall be appointed by the Governor with the advice and consent of the Senate, as specified in subdivisions (b) to (g), inclusive. The commission shall consist of the following members: "(a) The Superintendent of Public Instruction or his or her designee. "(b) Six practicing teachers from public elementary and secondary schools in California. "(c) One person who is employed on the basis of a services credential other than an administrative services credential. "(d) One member of a school district governing board. "(e) Four representatives of the public. . . . "(f) One school administrator in a public elementary or secondary school in California. "(g) One faculty member from a college or university that grants baccalaureate degrees. "With the exception of the four representatives of the public and the Superintendent of Public Instruction, the appointment of a member shall terminate if he or she is no longer a practicing teacher in a public elementary or secondary school, or a person who is employed on the basis of a valid services credential, or a school administrator, or a faculty member of a college or university that grants 1. All references hereafter to the Education Code are by section number only. 2. 89-301 baccalaureate degrees, or a school district governing board member, as may be the case, in California . . . ." (Emphasis added.)2/ The meetings of the Commission are normally open to members of the public. (§ 44231.) Section 44245, however, states: "All meetings and hearings of the commission and Committee of Credentials to consider the suspension or revocation of credentials shall be executive and closed sessions with only commission members, committee members, staff members, the certified employee whose application or credential is in issue, the counsel of such employee, and any material witnesses in attendance."3/ With this statutory background in mind, we turn to the central statute requiring interpretation and application to the factual situations presented. Subdivision (a) of section 44248 provides: "Any member of the commission, commission staff member, member or staff member of the Committee of Credentials, [or] State Department of Education employee who releases or gives out information received at a commission or committee meeting or hearing or through the investigation of a certified employee without authorization of the commission or committee, is guilty of a misdemeanor." Under the provisions of section 44248, therefore, it would be a crime for a Commission member to give out information received at a Commission meeting without the authorization of the Commission. Does this statutory prohibition have any effect upon disclosures made by the Superintendent's designee to the Superintendent and by the Superintendent to the Department's legal counsel? 1. Designee Disclosing to Superintendent In determining whether the disclosure prohibition of section 44248 would prevent the contemplated discussions between the designee and the Superintendent, we first consider which of the two is the "member of the commission." Is the Superintendent the Commission member whether or not he chooses a designee, or is the designee the Commission member once the designation is made? Subdivision (a) of section 44210 seemingly indicates that the designee is the Commission member by its use of the conjunction "or" in the phrase "or his or her designee." Such a construction of the statute would give significance to the term and phrase, and "[i]t is a settled axiom of statutory construction that significance should be attributed to every word and phrase of a statute." (People v. Woodhead (1987) 43 Cal. 3d 1002, 1010.) The remainder of section 44210, on the other hand, suggests that the Superintendent is the member, since it refers only to the Superintendent and makes no reference to the Superintendent's designee where it otherwise would be expected. 2. The Commission also has four ex officio members who, with certain exceptions, have no voting privileges. (§ 44212.) 3. The Committee of Credentials is comprised of seven members selected by the Commission to, among other duties, investigate allegations of misconduct by a credential holder. (§§ 44240- 44244.1.) 3. 89-301 In resolving this statutory ambiguity, we are guided by principles of construction recently summarized in Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1386-1387, where the Supreme Court said: "Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]" As part of a statute's legislative history, the reports of legislative committees (see Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 465, fn. 7) and of the state's Legislative Analyst (see Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 300) may properly be considered in analyzing the meaning of the language employed. We have examined at length the legislative history of the amendment of section 44210 that made the Superintendent a voting member of the Commission. When this change occurred in 1988 (Stats. 1988, ch. 1355, § 4.5), the report of the Senate Rules Committee described the proposed change (referring to the Superintendent as the "SPI") as follows: "Reduces the voting membership of CTC from 17 to 15 members. The membership of CTC would include the SPI, six classroom teachers, four public representatives, one school administrator, one other services credential holder, one school board member, and one faculty member." This same declaration of the proposed amendment's effect was contained in the report of the Assembly Committee on Education. The report of the state Legislative Analyst similarly declared: "Specifically, under this bill, the commission would be composed of six teachers, four public representatives, and one representative each of school administrators, other certificated employees, local school board members, university faculty, and the Superintendent of Public Instruction." The legislative history of the 1988 amendment of section 44210 refers solely to the Superintendent as the new voting member of the Commission. The Superintendent's designee is not mentioned as a possible member; indeed, we have found no reference to the designee in the legislative history of the 1988 amendment. The legislative history also fails to mention the Superintendent's authority in choosing a designee. Is the selection to be made under the general language of section 44210 or under some other statutory authorization? We are informed by the Superintendent that the 4. 89-301 present designee has the qualifications of subdivision (f) of section 331124/ for purposes of Government Code section 7.9. Subdivision (a) of section 7.9 of the Government Code states: "Notwithstanding any provision of law to the contrary, the Controller, the Treasurer, the Director of Finance, or the Superintendent of Public Instruction may designate any deputy of his or her office to act in his or her place and stead on any state board, commission, committee, or governing board of a state agency with respect to the exercise of statutory powers and duties of any of those bodies. The deputy, while sitting on a board, commission, committee, or governing board of a state agency may exercise the same powers that the Controller, the Treasurer, the Director of Finance, or the Superintendent of Public Instruction may exercise as if he or she were personally present. The Controller, the Treasurer, the Director of Finance, or the Superintendent of Public Instruction so designating a deputy shall be responsible for the acts of the deputy acting under the designation in the same manner and to the same extent that the Controller, the Treasurer, the Director of Finance, or the Superintendent of Public Instruction is responsible for the acts of the deputy performing his or her official duties as deputy to the Controller, the Treasurer, the Director of Finance, or the Superintendent of Public Instruction."5/ Construing section 44210 in light of its legislative history and in conjunction with these related statutes, we believe that the Superintendent is the Commission member even when he selects a designee to serve in his place. He acts through the designee and is responsible for all acts of the designee with respect to the Commission's activities. The participation by the designee at an executive session of the Commission may be considered as though the Superintendent were personally present. The designee exercises the powers of and is subject to the restrictions governing the Superintendent and does not have independent membership authority on the Commission. Returning to the controlling language of subdivision (a) of section 44248, we find that it refers to a Commission member "who releases or gives out" information without proper authorization. To "give out" is "to make known to or as if to the public." (Webster's Third New Internat. Dict. (1966) p. 960.) "Release" may be similarly defined. (Id., at p. 1917.) 4. Section 33112 provides: "The Superintendent of Public Instruction shall: "........................ "(f) Designate and appoint, or terminate the designation and appointment of, any officer or employee of the department to have the powers and liabilities of a deputy, including designation pursuant to Section 7.9 of the Government Code, which appointment and termination of appointment shall be effective when filed in writing in the office of the Secretary of State." 5. Additionally, Government Code section 7.6 provides separate and independent authority for the Superintendent to designate certain of his deputies "to act . . . in [his] place and stead, to all intents and purposes as though [he] were personally present" during the proceedings of a state board, commission, or committee of which he is a statutory member. (See 70 Ops.Cal.Atty.Gen. 250, 252- 253 (1987).) 5. 89-301 Here, the Superintendent is not to be considered a member of the public but rather is the Commission member. The Superintendent's designee does not "release or give out" Commission information by disclosing the information to the Superintendent, a Commission member. The latter participates in the Commission's activities through his designee; disclosures between the two are outside the scope of section 44248. In answer to the first question, therefore, we conclude that information disclosed at an executive session of the Commission to the designee of the Superintendent may be discussed by the designee with the Superintendent without the authorization of the Commission. 2. Superintendent Disclosing to Department Legal Counsel The Superintendent holds a constitutional office to which he is elected by the voters of the state. (Cal. Const., art. IX, § 2.) He is also the Director of Education, the statutory executive officer of the Department. (§§ 33300-33305; 56 Ops.Cal.Atty.Gen. 556, 560 (1973).) The Department is authorized to have its own legal counsel. (§ 33110; Gov. Code, §§ 11041- 11042.) The Superintendent is a member of the Commission in his role as a constitutional officer. The Commission, as created under section 44210, is independent of the Department. However, "[t]he Department of Education shall assist the commission in any manner the commission may request . . . ." (§ 44222.) Legislature has provided the Commission with its own staff. Section 44221 states in part: "The commission may employ such personnel as may be necessary to carry out its duties and responsibilities. The staff of the commission shall be subject to the relevant system and procedures of the state civil service." The Commission has its own legal counsel who provides advice and representation independent of the Department's legal counsel. Whether the Superintendent may disclose Commission information to the Department's legal counsel without Commission authorization is not readily apparent from a superficial reading of the relevant statutes. Nonetheless, we believe that the answer may be found in the language of section 44248 when read in light of the Superintendent's unique role as a Commission member. Section 44248 prohibits any "State Department of Education employee" from disclosing Commission information without proper authorization. The statute thus expressly covers disclosures by the Department's legal counsel. This indicates that disclosures to the legal counsel would not be considered as "outside" disclosures by the Legislature, since the statute's coverage extends to the legal counsel as well. The language of section 44248 clearly contemplates that at least some Department employees will be in possession of confidential Commission information. The Legislature has provided a close association between the Commission and the Department in the performance of official duties. (See § 44222.) This is particularly true with respect to the Superintendent's status as a Commission member. The Superintendent is the only "ex officio" member of the Commission; he is a Commission member by virtue of his constitutional office. His powers as a Commission member are by operation of law. (§ 44210.) In contrast, the other Commission members are selected by 6. 89-301 the Governor with the advice and consent of the Senate. (Ibid.) Their Commission powers are not conferred upon them by operation of law but rather by the act of an individual, the Governor. Various consequences flow from this distinction between an "ex officio" board member and one who is not. (See 62 Ops.Cal.Atty.Gen. 479, 490-492 (1979); 49 Ops.Cal.Atty.Gen. 85, 86 (1967); 29 Ops.Cal.Atty.Gen. 145, 148-149 (1957); 24 Ops.Cal.Atty.Gen. 56, 58 (1954).) For our purposes, it is important to recognize that the Superintendent's role on the Commission is to give the perspective of his office. The Legislature has provided the Superintendent with the Department's legal counsel for consultation and advice in connection with the rendering of his public duties. To deny the Superintendent the legal assistance of his office established by statute would measurably diminish the very purpose and perspective for which the Legislature has placed him on the Commission. Under these circumstances, we are not prepared to say that Commission authorization is required for the Superintendent to discuss Commission information with the Department's legal counsel in order to fully perform his official duties. These private discussions in the furtherance of official responsibilities do not constitute the "outside" disclosures prohibited by section 44248. (See Parrott v. Rogers (1980) 103 Cal. App. 3d 377, 383.) In answer to the second question, therefore, we conclude that information disclosed at an executive session of the Commission may be discussed by the Superintendent with legal counsel for the Department without the authorization of the Commission. ***** 7. 89-301

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127478/

OFFICE OF THE ATTORNEY GENERAL State of California JOHN K. VAN DE KAMP Attorney General ______________________________________ OPINION : : No. 89-503 of : : AUGUST 29, 1989 JOHN K. VAN DE KAMP : Attorney General : : RODNEY O. LILYQUIST : Deputy Attorney General : : ______________________________________________________________________________ THE HONORABLE WILLIAM H. IVERS, DIRECTOR, DEPARTMENT OF BOATING AND WATERWAYS, has requested an opinion on the following question: Where a city operates a boating program on an ocean lagoon, may the use of a boat launching facility on private property adjacent to the lagoon be conditioned upon each boat owner having liability insurance coverage naming the city as an additionally insured party? CONCLUSION Where a city operates a boating program on an ocean lagoon, the use of a boat launching facility on private property adjacent to the lagoon may not be conditioned upon each boat owner having liability insurance coverage naming the city as an additionally insured party. ANALYSIS In 63 Ops.Cal.Atty.Gen. 874 (1980), we concluded that a city could not impose by ordinance a requirement that boat owners obtain liability insurance coverage naming the city as an additionally insured party in order to participate in the city's boating program on an ocean lagoon located within the city's boundaries. The present inquiry involves the same city and lagoon,1 but the city ordinance has since been repealed. Instead, the same liability insurance requirement is imposed upon the use of a boat launching facility located on private property adjacent to the lagoon.2 Does the repeal of the 1 The lagoon bed is owned by a private utility company that dredged marshland to create the lagoon. The city leases the lagoon bed from the utility company and operates an extensive recreational use program. (63 Ops.Cal.Atty.Gen. 874, 876, fn. 3 (1980).) 2 The city has a contractual agreement with the owner of the boat launching facility under which the city receives $1 for each boat launched and the operator allows up to 80 boats to be on the water 1. 89-503 ordinance and placing the requirement upon the use of private property merit a different conclusion from the one reached in our 1980 opinion? We conclude that the present liability insurance requirement violates state law. The contract between the city and the boat launch owner excludes the identical persons from the city's boating program as were excluded under the former city ordinance. Those boat owners who do not carry liability insurance, have insurance but cannot add the city as an additionally insured party under the terms of their policies, or do not know of the requirement for naming the city as an additionally insured party are prevented from launching their boats. Obviously, if every city and county adopted such a requirement, boat owners traveling throughout the state would be faced with substantial barriers in the use of their boats. We know of no law that requires a city or private property owner to maintain and operate a boat launching facility. Once the facility is made available to members of the public, however, various provisions of law limit the types of conditions that may be placed upon the public's use. The activity of boating is of special concern to the Legislature since the Constitution directs the Legislature to protect "the free navigation" of the navigable waters of the state. Section 4 of article X of the Constitution provides: "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof." The Legislature is thus responsible for enacting laws that protect the public's right of access to and use of the navigable waters of the state.3 It has done so in part by enacting such laws as Harbors and Navigation Code section 131 ["Every person who unlawfully obstructs the navigation of any navigable waters is guilty of a misdemeanor"],4 Penal Code section 370 ["anything which . . . unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin . . . is a public nuisance"], and Civil Code section 3479 ["Anything which . . . unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin . . . is a nuisance"].) With specific regard to navigable waters located within the boundaries of a city, Government Code section 39933 declares: "All navigable waters situated within or adjacent to a city shall remain open to the free and unobstructed navigation of the public. Such waters and the water front of such waters shall remain open to free and unobstructed access by the people from the public streets and highways within the city. Public streets, highways, and at any given time. 3 The lagoon in question meets the test of navigability. (See National Audubon Society v. Superior Court (1983) 33 Cal. 3d 419, 435; Forestier v. Johnson (1912) 164 Cal. 24, 34-40; People v. Truckee Lumber Co. (1897) 116 Cal. 397, 401; People ex rel. Baker v. Mack (1970) 19 Cal. App. 3d 1048, 1050; Bohn v. Albertson (1951) 107 Cal. App. 2d 738, 749-757.) 4 All references hereafter to the Harbors and Navigation Code are by section number only. 2. 89-503 other public rights of way shall remain open to the free and unobstructed use of the public from such waters and water front to the public streets and highways." Because of these constitutional rights of access and navigation, courts have closely scrutinized any attempts to curtail or obstruct the people's use of navigable waters. In People ex rel. Younger v. County of El Dorado (1979) 96 Cal. App. 3d 403, for example, the court struck down a county ordinance prohibiting the use of rafts on the American River. The court explained: "However laudable its purpose, the exercise of police power may not extend to total prohibition of activity not otherwise unlawful. (Frost v. City of Los Angeles (1919) 181 Cal.22 (ban on supplying water less pure than purest available); San Diego T. Assn. v. East San Diego (1921) 186 Cal. 252 (ban on operation of hospitals treating infectious or contagious diseases within city limits).) Courts are especially sensitive to infringements upon constitutional rights under the guise of exercise of police power. (See Scrutton v. County of Sacramento (1969) 275 Cal. App. 2d 412, 421.) The public's right of access to navigable streams is a constitutional right. (Cal. Const., art. X, § 4; Marks v. Whitney (1971) 6 Cal. 3d 251.)" (Id., at p. 406.) In Lane v. City of Redondo Beach (1975) 49 Cal. App. 3d 251, the court recognized that cities were obligated to protect rather than defeat the public's right of access to navigable waters. The court observed: "The basic purpose in entrusting tidelands to municipalities in trust, is to insure the right of free public access to tidelands or navigable waters. [Citation.] The object of the trust is destroyed if a municipality in the exercise of its admitted municipal power to vacate municipal streets can deprive the public of its right of access to tidelands or navigable waters. The municipality as a trustee of tidelands, is obligated to achieve, not defeat the object of the trust. Its municipal powers must be exercised in a manner which is consistent with its trust duties. It may not use its municipal powers to destroy its trust obligations." (Id., at p. 257.) We do not question the right of the Legislature to reasonably regulate access to and use of the navigable waters of the state. It may require boats to be registered and licensed. (See Veh. Code, § 9850.) Although it has not done so, the Legislature could require an owner to obtain liability insurance coverage for his or her boat. It could also allow cities and counties to reasonably regulate boating activities within their territorial boundaries. Indeed, the Legislature has authorized cities and counties to place restrictions upon the navigation of boats, but only under narrowly defined conditions. Subdivision (a) of section 268 provides: "Counties or cities may adopt restrictions concerning the navigation and operation of vessels and water skis, aquaplanes, or similar devices subject to the provisions of subdivision (a) of Section 660, . . ." Subdivision (a) of section 660 in turn states: "The provisions of this chapter, and of other applicable laws of this state, shall govern the use, equipment, and all other matters relating thereto whenever any boat or vessel shall be used on the waters of this state, or when any activity regulated by this chapter shall take place thereon. Nothing in this chapter shall be construed to prevent the adoption of any ordinance, law, regulation or rule relating to vessels 3. 89-503 by any entity otherwise authorized by law to adopt such measures, including but not limited to any city, county, city and county, port authority, district or state agency; provided, however, that such measures relating to boats or vessels shall pertain only to time-of-day restrictions, speed zones, special-use areas, and sanitation and pollution control, the provisions of which are not in conflict with the provisions of this chapter or the regulations adopted by the department. Such measures shall be submitted to the department prior to adoption and at least 30 days prior to the effective date thereof."5 These statutory grants of regulatory power to local governments cannot, however, be reasonably construed to include conditioning the use of a vessel upon the obtaining of liability insurance coverage for a city or county. (63 Ops.Cal.Atty.Gen. 874, 876-877 (1980).) In Tellis v. Municipal Court (1970) 5 Cal. App. 3d 455, the court upheld a county ordinance requiring boat owners to obtain permits to live aboard their boats. The court found express authority in section 660 for such a "sanitation and pollution control" regulation. (Id., at p. 458.) Unlike Tellis, a liability insurance requirement does not fit within any of the areas of regulation authorized by sections 268 or 660. The fact that the boat launching facility is located on private property is irrelevant for purposes of these statutory grants of power. Use of the facility requires use of the lagoon; the latter is the sole purpose of the former. The two activities are inexorably connected and are not reasonably divisible. The boat launch operator is not acting independently of the city when requiring the liability insurance coverage naming the city as an additionally insured party. We find no meaningful distinction here between the city imposing the requirement by ordinance or by contract. What the city must do under its constitutional and statutory mandate is to facilitate access to and navigation of the lagoon. The liability insurance requirement for coverage of the city's interests is instead an unreasonable impediment to access and use of the lagoon. Only those who know of and are able to obtain the specified coverage may launch their boats. As we previously stated, "If each county and city operating a boating program were free to adopt the type of ordinance provision in question, a boat owner traveling throughout the state would be faced with substantial barriers in the use of his boat." (63 Ops.Cal.Atty.Gen. 874, 878 (1980).) Hence, the adverse effect of the insurance requirement "'on the transient citizens of the state outweighs the possible benefit to the municipality.'" (Ibid.) In this regard, we acknowledged in our prior opinion the "benefit" to the city of the insurance requirement but noted that "a city may insure against its own negligent liability and pass on the costs of such a 'management' and 'maintenance' cost to those benefiting from the program." (Id., at pp. 878-879.) This would also be true for fees covering the cost of a self-insurance program. Moreover, it should be recognized that the Legislature has provided a statutory immunity from liability for public agencies operating recreational programs under a variety of circumstances. (Gov. Code, §§ 831.2- 831.7.) 5 The "department" is the Department of Boating and Waterways. (§ 32.) 4. 89-503 In answer to the question presented, therefore, we conclude that where a city operates a boating program on an ocean lagoon, the use of a boat launching facility on private property adjacent to the lagoon may not be conditioned upon each boat owner having liability insurance coverage naming the city as an additionally insured party. ***** 5. 89-503

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127778/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT July 1, 2013 The Honorable Glenn Hegar Opinion No. GA-1011 Chair Committee on Nominations Re: Whether a water control and improvement Texas State Senate district may adopt and enforce rules regarding Post Office Box 12068 illegal dumping and weed control (RQ-11 09-GA) Austin, Texas 78711 Dear Senator Hegar: You ask whether a water control and improvement district ("WCID") may adopt and enforce rules regarding illegal dumping and weed control. 1 You inform us that the Victoria County Water Control and Improvement District No. 1 (the "District") is located in Bloomington, an unincorporated community, and has the powers and duties conferred by statute on water control districts created under Section 59, Article XVI of the Texas Constitution, including applicable provisions in chapters 49 and 51 of the Water Code. Request Letter at 1. You state that residents have asked the District to regulate weeds and illegal dumping on overgrown lots in the District. !d. The residents assert that the exercise of a WCID's police powers ."would be appropriate because: (1) property overgrown with weeds creates a breeding ground for rodents and other pests that can carry and transmit diseases that, through runoff, can find its way into the water supply; and (2) similarly, illegal dumping can contaminate the local water supply." !d. Although you provide background about the District, you ask about a WCID's authority to control weeds or illegal dumping without regard to a particular WCID or a specific ordinance. Your first question asks whether a WCID has authority "to control weeds under Chapters 49 or 51 of the Texas Water Code." Request Letter at 3. A WCID has only those powers expressly granted by statute, including those "necessarily implied as an incident to the express powers given." Harris Cnty. Water Control & Improvement Dist. No. 58 v. City of Houston, 357 S.W.2d 789, 795 (Tex. Civ. App.-Houston 1962, writ refd n.r.e.). As you note, neither chapter 49 nor 51 of the Water Code addresses weed control and thus does not expressly grant such powers to WCIDs. See Request Letter at 2. However, chapter 49 of the Water Code grants general-law 1 See Letter from Honorable Glenn Hegar, Chair, Senate Comm. on Nominations, to Honorable Greg Abbott, Tex. Att'y Gen. at I (Feb. 4, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter"). Senator Glenn Hegar - Page 2 (GA-1011) water districts such as a WCID the "functions, powers, authority, rights, and duties that will permit accomplishment of the purposes for which it was created or the purposes authorized by the constitution, this code, or any other law." TEX. WATER CODE ANN. § 49.211(a) (West 2008). Pertinent here, one of the stated purposes of a WCID is to "provide for . . . the protection, preservation, and restoration of the purity ·and sanitary condition of water within the state," which it may accomplish "by any practical means." /d. § 51.121(b)(6), (c). A WCID is specifically authorized to "adopt and enforce reasonable rules and regulations to ... preserve the sanitary condition of all water controlled by the district." /d. § 51.122(2). Accordingly, a WCID has implied authority to adopt a particular ordinance within its jurisdiction only if it is reasonable and is a practical means to accomplish a WCID purpose, such as the protection of water purity. While the residents assert that there is a nexus between overgrown lots and the water supply, a WCID must determine for itself whether any particular weed-control ordinance is reasonable and is a practical means to "preserve the sanitary condition of all water controlled by the district." /d.; see also St. Clair v. Harris Cnty. Water Control & Improvement Dist. No. 21,474 S.W.2d 545, 549 (Tex. Civ. App.-Houston [14th Dist.] 1971, no writ) (determining that the evidence considered by a WCID board supported its decision, and therefore its actions were not unreasonable, arbitrary, or capricious). Your second question is whether WCIDs "have explicit and/or implied authority to regulate illegal dumping under Chapters 49 and 51 of the Texas Water Code and Texas Health and Safety Code §. 365.012." Request Letter at 3. Under section 365.012 of the Texas Health and Safety Code, certain dumping of litter or other solid waste is a criminal offense. TEX. HEALTH & SAFETY CODE ANN. § 365.012 (West Supp. 2012). Chapter 49 of the Water Code authorizes a district to "contract for or employ its own peace officers with power to make arrests when necessary to prevent or abate the commission of ... any offense against the rules of the district when the offense or threatened offense occurs on any land, water, or easement owned or controlled by the district," and "any offense against the laws of the state." TEX. WATER CODE ANN. § 49.216(a)(1), (3) (West 2008). Accordingly, a WCID has express authority to enforce the state criminal prohibition against illegal dumping pursuant to section 365.012 of the Health and Safety Code. Neither chapters 49 nor 51 expressly addresses the authority of a WCID to regulate illegal dumping by ordinance. As discussed above with respect to weed control, a WCID has implied authority to adopt a particular illegal dumping ordinance within its jurisdiction only if doing so is reasonable and is a practical means to accomplish a WCID purpose, such as the protection of water purity. Senator Glenn Hegar - Page 3 (GA-1011) SUMMARY A water control and improvement district has implied authority to adopt an ordinance to control weeds or regulate illegal dumping within its jurisdiction only if the ordinance is reasonable and is a practical means to accomplish a district purpose, such as the protection of water purity. The Water Code expressly authorizes a water control and improvement district to enforce state offenses prohibiting illegal dumping. Very truly yours, DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee William A. Hill Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4124971/

KEN PAXTON ATTORNEY GENERAL OF TEXAS May 27, 2016 The Honorable Jane Nelson Opinion No. KP-0093 Chair, Committee on Finance Texas State Senate Re: Whether an institution of higher Post Office Box 12068 education may enter into a contract with a Austin, Texas 78711 business entity in which an institution's board member has an interest (RQ-0081-KP) Dear Senator Nelson: You ask whether "an institution of higher education may enter into a contract with a business entity in which· an institution's board member has an interest." 1 You explain that during its 2015 session, the Legislature enacted Senate Bill 20 relating to various aspects of state agency contracting. 2 Among the legislative changes in Senate Bill 20 is the addition of subchapter F to chapter 2261 of the Government Code. See TEX. Gov'T CODE§§ 2261.251-.257 (subchapter F, "Ethics, Reporting, and Approval Requirements for Certain Contracts"). Subsection 226 l .252(b) provides that a "state agency may not enter into a contract for the purchase of goods or services with a private vendor with whom [certain] agency employees or officials have a financial interest," specifically including "a member of the agency's governing body." Id. § 2261.252(b)(l). While subchapter F does not define "state agency," the Legislature expressly applied the subchapter "to an institution of higher education acquiring goods or services under" certain grants of authority in the Education Code. Id.§ 2261.25l(a); TEX. EDUC. CODE§§ 51.9335 ("best value" acquisition authority generally applicable to institutions of higher education), 73.115 ("best value" authority of the University of Texas M. D. Anderson Cancer Center). 3 1 See Letter from Honorable Jane Nelson, Chair, Senate Comm. on Finance, to Honorable Ken Paxton, Tex. Att'y Gen. at I (Nov. 23, 2015), https://www.texasattorneygeneral.gov/opinion/request-for-opinion-rqs ("Request Letter"). 2 Act of May 31, 2015, 84th Leg., R.S., ch. 326, 2015 Tex. Gen. Laws 1477, 1477-89 (Senate Bill 20). 3 For purpose of subtitle D of the Government Code ("State Purchasing and General Services"), "state agency" means: (I) a department, commission, board, office, or other agency in the executive branch of state government created by the state constitution or a state statute; The Honorable Jane Nelson - Page 2 (KP-0093) An existing provision of the Education Code, however, subsection 51.923( d), states that an "institution of higher education is not prohibited from entering into a contract or other transaction with a business entity in which a member of the governing board of the institution of higher education has an interest" provided the interest is not substantial or the member discloses the interest and refrains from voting on the contract or transaction. TEX. EDUC. CODE§ 51.923(d). 4 As you note, "[t]hese provisions appear to contradict one another." Request Letter at 1. When two statutes appear contradictory, courts try to harmonize them to avoid conflicts, giving full effect to both if possible. Texas Indus. Energy Consumers v. CenterPoint Energy Haus. Elec., LLC., 324 S.W.3d 95, 107 (Tex. 2010); Acker v. Texas Water Comm 'n, 790 S.W.2d 299, 301 (Tex. 1990) (stating that "statutory repeals by implication are not favored"). When statutes irreconcilably conflict, the Code Construction Act provides rules to determine which should prevail. Subsection 31 l.025(a) of the Code Construction Act provides that if effect cannot be given to two irreconcilable statutes, the statute latest in date of enactment prevails as the last expression of legislative intent. TEX. Gov'T CODE § 311.025(a) (Code Construction Act). But a different rule applies when one provision is general and the other is specific on the same subject, in which case the specific 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." Id.§ 31 l.026(b); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (recognizing the "traditional statutory construction principle that the more specific statute controls over the more general"). 5 We begin by examining the scope of the two statutes to determine the extent to which they may conflict. Section 2261.252 of the Government Code is a prohibition on certain contracts of state agencies: (b) A state agency may not enter into a contract for the purchase of goods or services with a private vendor with whom any of the (continued from previous page) (2) the supreme court, the court of criminal appeals, a court of appeals, or the Texas Judicial Council; or (3) a university system or an institution of higher education as defined by Section 61.003, Education Code, except a public junior college. TEX. Gov'T CODE § 2151.002. 4 The substance of section 51.923(d) was enacted in 1989, and the section was last amended in 2011. Act of May 22, 1989, 71st Leg., R.S., ch. 647, § I, 1989 Tex. Gen. Laws 2140, 2140--41 (formerly codified as section 51.921, Education Code), renumbered by Act of March 25, 1991, 72d Leg., R.S., ch. 16, § 19.01(23), 1991 Tex. Gen. Laws 244, 369, and amended by Act of April 25, 1995, 74th Leg., R.S., ch. 76, § 5.95(91), 1995 Tex. Gen. Laws 458, 553; Act of May 27, 2011, 82d Leg., R.S., ch. 1049, § 2.01, 2011 Tex. Gen. Laws 2687, 2690. 5 While subsection 31 l.026(b) states that a "special or local provision" prevails over a general provision, opinions of Texas courts and attorney general opinions construe "special or local" to mean "specific." Tex. Att'y Gen. Op. No. GA-0650 (2008) at4, citing City of Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994). The Honorable Jane Nelson - Page 3 (KP-0093) following agency employees or officials have a financial interest: (1) a member of the agency's governing body; (2) the governing official, executive director, general counsel, chief procurement officer, or procurement director of the agency; or (3) a family member related to an employee or official described by Subdivision (1) or (2) within the second degree by affinity or consanguinity. (c) A state agency employee or official has a financial interest in a person if the employee or official: (1) owns or controls, directly or indirectly, an ownership interest of at least one percent in the person, including the right to share in profits, proceeds, or capital gains; or (2) could reasonably foresee that a contract with the person could result in a financial benefit to the employee or official. TEX. Gov'T CODE§ 2261.252(b)-(c). Subsection 51.923(d) of the Education Code is a grant of authority, allowing institutions of higher education specifically to contract with an entity in which a member of the board of trustees has an interest in certain circumstances: (d) An institution of higher education is not prohibited from entering into a contract or other transaction with a business entity in which a member of the governing board of the institution of higher education has an interest if the interest is not a substantial interest or, if the interest is a substantial interest, the board member discloses that interest in a meeting held in compliance with Chapter 551, Government Code, and refrains from voting on the contract or transaction requiring board approval. Any such contract or transaction requiring board approval must be approved by an affirmative majority of the board members voting on the contract or transaction. TEX. EDUC. CODE§ 51.923(d). 6 6 Subsection 51. 923(e) defines what constitutes a substantial interest under the statute: [A] member of a governing board has a substantial interest in a business entity if: ( 1) the member owns 10 percent or more of the voting stock or shares of the business entity or owns either 10 percent or more or $15,000 or more of the fair market value of the business entity; The Honorable Jane Nelson - Page 4 (KP-0093) Because subsection 51.923(d) of the Education Code would authorize some contracts that subsection 226 l .252(b) of the Government Code would prohibit, the statutes irreconcilably conflict where they overlap. See NXCESS Motor Cars, Inc. v. JP Morgan Chase Bank, NA., 31 7 S.W.3d 462, 469 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (stating that statutes conflict "[i]f the same factual situation can harvest different results under different statutes" (internal quotation marks omitted)). Thus, we must analyze how to resolve the conflict using the rules in the Code Construction Act. Briefs submitted to this office contend that section 51. 923 of the Education Code should operate as a specific exception to section 2261.252 of the Government Code. 7 Even if we were to agree that section 51. 923 of the Education Code is the more specific statute, this would not render it effective as an exception to section 2261.252 of the Government Code. This is because a general statute will prevail over a specific statute when "the general provision is the later enactment and the manifest intent is that the general provision prevail." TEX. Gov'T CODE § 311.026(b). In section 2261.252, the later-enacted statute, the Legislature specifically made the prohibition applicable to an "institution of higher education," and expressly included members of a governing body within the prohibition. Id. §§ 2261.25l(a), .252(b)(l), (3). Thus, the words of specific inclusion manifest intent that the statute prevail with respect to certain contracts for the purchase of the specified goods and services by an institution of higher education. Id.§ 2261.251(a). For such contracts, the prohibition in section 2261.252(b) prevails over the authorization in section 51. 923 of the Education Code to the extent the statutes conflict. 8 Accordingly, section 2261.252(b) of the Government Code prohibits a contract by an institution of higher education to purchase certain goods or services from a private vendor in which a member of the institution's governing body or a certain family member has a prohibited financial interest. (continued from previous page) (2) funds received by the member from the business entity exceed 10 percent of the member's gross income for the previous year .... (3) the member is an officer of the business entity or a member of the governing board of the business entity; or (4) an individual related to the member in the first degree by consanguinity or affinity, as determined under Chapter 573, Government Code, has an interest in the business entity as described by Subdivision (1), (2), or (3). TEX. EDUC. CODE§ 51.923(e)(l)-(4). 7 See generally Brief from John Huffaker, Vice Chancellor & Gen. Counsel, Tex. Tech. Univ. Sys. (Jan. 12, 2016); Brief from Daniel H. Sharphorn, Vice Chancellor & Gen. Counsel, the Univ. of Tex. Sys. (Dec. 22, 2015) (briefs on file with the Op. Comm.). 8 Contracts and transactions not subject to the prohibition in section 2261.252(b) of the Government Code may still be authorized under section 51.923 of the Education Code. The Honorable Jane Nelson - Page 5 (KP-0093) SUMMARY Section 2261.252 of the Government Code prohibits a contract by an institution of higher education to purchase certain goods or services from a private vendor in which a member of the institution's governing body or a certain family member has a prohibited financial interest. Very truly yours, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General 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/4118534/

01/24/2017 IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs December 2, 2016 IN RE A.B.,1 ET AL. Appeal from the Chancery Court for Maury County No. A-049-14 Robert L. Jones, Judge ___________________________________ No. M2016-01286-COA-R3-PT ___________________________________ Father and stepmother petitioned to terminate the parental rights of mother to her two children. We have determined that the petitioners proved by clear and convincing evidence that mother’s actions prior to her incarceration exhibited wanton disregard for the welfare of the children and that it is in the best interest of the children for mother’s parental rights to be terminated. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed ANDY D. BENNETT, J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined. Kori Bledsoe Jones, Columbia, Tennessee, for the appellant, Ashley M.H. Ronald G. Freemon, Columbia, Tennessee, for the appellees, R.D.B. and Amy E.B. OPINION FACTUAL AND PROCEDURAL BACKGROUND R.D.B. (“Father”) and Ashley M.H. (“Mother”) are the biological parents of A.B. and R.B. (“the children”). Father is now married to Amy E.B. (“Stepmother”). In December 2014, Father and Stepmother (“the petitioners”) filed a petition to terminate the parental rights of Mother (“the respondent”) and for the adoption of the children by Stepmother in the Maury County chancery court.2 According to the petition, the children 1 This Court has a policy of protecting the identity of children in parental termination cases by initializing the last names of the parties. 2 Pursuant to Tenn. Code Ann. § 36-1-113(b), Father has no standing to petition for the termination of Mother’s parental rights; however, he is a necessary party to Stepmother’s petition for had been in Father’s custody since February 2013 pursuant to an order of the Maury County juvenile court, and Mother was currently incarcerated in the Maury County jail. The trial court appointed a guardian ad litem (“GAL”) to represent the interests of the children in January 2015. Father and Stepmother were permitted to file an amended petition to terminate in March 2015 and to add the ground for termination at issue in this appeal. They alleged that Mother had abandoned the children by engaging in conduct prior to incarceration that exhibited a wanton disregard for the welfare of the children. See Tenn. Code Ann. § 36-1-102(1)(A)(iv). The case was heard on May 4 and 5, 2016. The sole basis for termination argued at trial was abandonment by wanton disregard. Evidence at the Hearing The petitioners’ first witness was Mother. She testified that she and Father were in a relationship, off and on, from 2007 until 2012, during which time the two children were born (in July 2008 and March 2011). By May 2012, when the relationship had ended, Mother and Father alternated custody on a week-on/week-off basis. Mother acknowledged that, in January 2010, she pled guilty in general sessions court to theft of merchandise in Walmart; she was placed on probation and told to stay out of the store. A few months later, she was charged in circuit court with possession of scheduled drugs for resale and was sentenced to three years’ probation at thirty percent. In December 2011, Mother was charged with a first offense DUI, to which she pled guilty; that charge was tied in with her other charges to run concurrently with her three- year sentence. As a result of the DUI offense, Mother received a forty-five-day sentence for violation of probation, and she was only required to serve half of that sentence. Mother testified that, while she was incarcerated, the children stayed with her parents and with Father’s parents because he was also incarcerated at that time. In late November 2012, Mother called Father in the middle of the night saying that she had been threatened by someone and that he needed to keep the children. She left Columbia, Tennessee on December 5 and went to Memphis. Mother testified that her reason for going to Memphis was that, beginning in October 2012, she had gotten involved with a man named Glenn Miller and that “he had did something and I was in fear.” Their relationship ended on December 12, 2012, when Mother went to jail in Davidson County, Tennessee, charged with felony possession of a firearm, driving on a adoption. See Tenn. Code Ann. § 36-1-115(c) (noting that the spouse of the petitioner seeking to adopt a child must sign the adoption petition as a co-petitioner even when the spouse is the biological parent of the child sought to be adopted); Osborn v. Marr, 127 S.W.3d 737, 740-41 (Tenn. 2004) (explaining that a parent of a child is not one of the persons or entities with standing to file a petition to terminate parental rights). -2- suspended license, and alteration of a serial number. Mother was erroneously released from jail in Davidson County in July 2013; she was still supposed to be incarcerated in Maury County on violations of probation. Mother turned herself in in Maury County in August 2013 and was incarcerated there until December 4, 2014. Mother admitted to having a history of drug abuse, including the use of drugs (marijuana, cocaine, opiates, and Xanax) since her release from jail in 2014. She testified that, at the time of the hearing, it had been a month since she had used drugs. Mother admitted that, when she took a drug screen after the filing of the petition, she failed for marijuana. Mother testified about her involvement with Mr. Miller. Shortly after their relationship began, Mother realized that he was in a gang and was engaged in some activity that scared her. Mr. Miller had a gun that did not belong to him. The two of them went to Memphis for a few days because they were being threatened. On the way back to Nashville, they were pulled over by the police. The gun was in the car. Mother further testified: Q. Can you tell me what happened when you were pulled over on your way back from Memphis? A. When we got pulled over, the cop asked what our names was and ran his name and it came back that he had a warrant down here so they automatically handcuffed him, and me being scared, being my car, the gun was in my car, I just—I kind of panicked and I put it on my person. Q. Put what on your person? A. The gun. Q. Was the gun yours? A. No. Q. Why did you put it on your person? A. Because at that time, I didn’t think that—I didn’t think that I was going to get in any kind of trouble at all. I really wasn’t thinking at all. Q. So were you trying to keep yourself out of trouble. A. Yes. Yes. Q. Do you see in retrospect that was a bad idea? A. Yes. Q. Did the officer ask you or tell you he was going to search? A. Yes. He told me he was going to search and did I have anything on me or in my car that he needed to know about. Q. And what did you do at that time? A. I told him yes, and he asked me what it was, and I told him, and he asked where it was, and I showed him, and he took it off my person. -3- Q. Okay. And you were eventually—you were charged with felony possession of that firearm? A. Yes. Asked about her pre-incarceration drug use, Mother testified that she did not use drugs in the presence of her children. At that time, she was using marijuana and Xanax (which had been prescribed to her for anxiety), but not every day. Mother stated that Father used Ecstasy, marijuana, and opiates. Mother acknowledged that she had not been completely clean since her incarceration, but she used drugs “in spurts.” For the first five months after her release, she did not use any drugs. She attributed her inability to stay clean largely to the fact that she had not been allowed to see her children or talk to them on the phone. Mother testified that she went to rehabilitation voluntarily after her DUI because she realized she was drinking too much, and she completed the program. Mother had worked at McDonalds off and on for thirteen years for the same employer, Tony Wolfe. She received raises and promotions. Since her release from incarceration in 2014, Mother worked at McDonalds for fifteen months. When questioned by the GAL, Mother described the parenting arrangements when the younger child was little and the parents were not together. Mother would have the child the majority of the time, and Father would take her during the weekends and sometimes during the week. The week-on/week-off schedule was established around October 2011 at Mother’s request and by agreement of the parties.3 While Mother was incarcerated in Maury County, she requested visitation with the children and the court ordered visitation. Mother voluntarily surrendered the visitation after Stepmother informed her that the visits were having a detrimental effect on the children. Mother stated: “it was hard [to give up the visits], it was very, very hard, but I didn’t want to be selfish.” Mother testified that she believed she could stay off of drugs without going to rehab. If, however, the court ordered her to complete rehabilitation as a condition to having visitation with the children, she would comply. Mother testified that, since she had been released from jail, she had been making child support payments. On some occasions, she had not been able to pay the entire amount, but she had made payments every month. The petitioners next called Father as a witness. Father testified that the children had been living with him for the past four years. He stated that he was incarcerated for 3 Mary Walker, a character witness for Mother, corroborated Mother’s testimony that she initiated the 50-50 custody arrangement. -4- ten days for driving on a suspended license at the same time that Mother was in jail on her probation violation. He had been in jail about a year before that, in June or July of 2011, for driving on a suspended license. In January 2012, he pled guilty to personal use of cocaine and was sentenced to eleven months and twenty-nine days on probation. According to Father, when Mother called at 2:00 or 3:00 a.m. one night in November 2012, she said her house had been broken into and it was not safe for the children to be there with her. Mother did not come to pick them up the next day, as contemplated under the regular schedule. Father had the children in his custody from that time until the hearing. Father testified that he learned that Mother was incarcerated in Davidson County when he received a letter from her. Mother “wanted us to write her about the girls and how they were doing.” Asked if he had ever seen Mother in an impaired state while driving, Father testified that, sometime in early 2012, he met Mother to pick up the children from her and noticed that her eyes were bloodshot as if she had been smoking marijuana. He saw a pill bottle on the front seat of her car that looked like her Xanax bottle. She seemed a little shaky, like she was when she was anxious. The same day that he received the November 2012 call from Mother, Father went to Columbia and met with the Department of Children’s Services, which filed a petition for dependency and neglect. Father was given custody of the children in February 2013. On cross-examination, Father admitted that he had used drugs in the past, including Ecstasy, marijuana, and Lortab. Although he pled guilty to possession of cocaine, he denied taking cocaine. Father stated that he had sold marijuana, but not since the children were born. He had taken marijuana during the life of his older child, but not since the younger child was born. Father further testified that he had been incarcerated three times, twice since one or both of the children were born. Father asserted that it was his idea that he and Mother enter into the agreement for 50-50 parenting time in October 2011. Father acknowledged that he took no action to obtain full custody of the children after he allegedly saw Mother in May 2012 in an impaired stated when she transferred the children to him. When asked why he thought Mother’s parental rights should be terminated, Father answered: I believe . . . , as a mother, . . . you would not take the side of a man over your children because he is in trouble, you would let him go and be with your kids. You wouldn’t follow him knowing that he is unsafe around you and your child so you choose to drop your child off and go with him. You basically chose a man over your children. So if that’s the case, you should -5- not be with your children. . . . [Y]ou have to think about your children before you think about yourself. . . . She can -- she cannot stay off the drugs, she does not have a stable place to stay, she has been staying here and there, she – the crowd she hangs around is nothing but drug addicts, which, granted, I half of the people I be with, they smoke weed, but that is not allowed at my house. Stepmother was the next witness for the petitioners. She testified that she and Father met in May 2012, moved in together in August 2012, and married in December 2012. Stepmother stated that, when Mother called saying that Father needed to keep the children, he put the call on speaker phone. Stepmother thought that Mother sounded upset, rattled, and scared. Mother said that she needed Father and Stepmother to take care of the children because they were not safe with her and she was not able to take care of them. Stepmother testified that Mother mentioned that she had gotten into some trouble and that someone was after her. Stepmother testified that she learned of Mother’s incarceration through a letter from Mother. Mother would write letters to Stepmother and the children, and Stepmother would write back. Questioned about why she would write to Mother about the children, Stepmother stated: “I’m a mom so I could see where she would, you know, want to know.” On cross-examination, Stepmother was questioned about the content of the letters she wrote to Mother. Stepmother read into evidence the following excerpts from a letter she wrote to Mother on January 14, 2013: [From A.B.] Dear Mommy, I have been making snow at school, I have been learning about my letters. I want you to be happy and pretty. I have been talking to Pawpaw [H.] almost every day, I know how you feel. Please don’t be sad. I love you very much. I got a motorbike, dirt bike, and baby – a baby, clothes for dress-up. Hi, mom, I love you. [R.B.] says she loves you. [From Stepmother] You can write the girls any time you like and we will read the letters to them and I will help them write back to you. I did want you to know that we are claiming [A.B.]. . . . I hope you keep your head up and that this may be the start for you to have a major change for a better life for you and these girls who need their mom. I want you to know I will never take your place but I do love and care for these girls with my whole heart. Here’s our address if you choose to write the girls. In a letter dated November 4, 2013, Stepmother informed Mother that the girls “are not adjusting well to the visits.” Stepmother told Mother that A.B. was getting in trouble in -6- school and R.B. was regressing in toilet training. A.B. had allegedly asked a lot of questions about the jail and stated that she did not want to go back and see Mother until she could hug her. Stepmother was also asked to read excerpts from a letter to Mother dated October 5, 2014: I know your time there is coming to an end and I pray daily that you take these last few months and think of what your plans are with these precious girls and what’s best for them, not you, me, or R.B. Just like you, we love those girls and have cared for them, giving them such great stability and spoiling them as only kids should be spoiled, not just with toys, but love, comfort, and peace of mind. These girls have grown so much and are happy and I want it to stay that way forever. They deserve a better chance to succeed in life and the way they are going to get that is through stability. I want you to think long and hard how we are going to get along when you do get out. It is important for the girls to see that. It is important that we both stay in the mom role for the girls, they know you are their real mother but I, too, am their mother. Even though I didn’t give birth to them, I have given them and will also give them the love and comfort they deserve. I am very worried about you. Life is very different out here than in there. You have to change your friends, your lifestyle, addiction is an everyday challenge. You must stay strong and so these girls know what life should really be like, not staying wherever you can lay your head or getting high instead of paying the light bill. Ashley, I worry about your choices that might put these girls in danger because we know that you have not always made good choices when it comes to what is best for the girls. I know you don’t believe me, but I want nothing but good things for you, but I also want us to work together when it comes to raising the girls from here on out. I have just seen it with my kids, how important having that is for them and in how not having that can affect a child in everyday life. Stepmother acknowledged that, despite discussing co-parenting with Mother as late as October 2014, the petitioners served Mother with the termination petition on December 4, 2014, the day she was released from incarceration. She agreed that Mother acted selflessly in stopping visitation based on Stepmother’s assertions that the visits were having a negative effect on the children. Asked why Mother’s parental rights should be terminated, Stepmother described her bond with the children. After the petitioners rested their case, the GAL filed a motion to dismiss, arguing that the petitioners had failed to prove by clear and convincing evidence that Mother’s -7- actions, prior to her incarceration, exhibited a wanton disregard for the welfare of the children. The court took the motion under advisement, and the hearing continued. Respondent, Mother, testified on her own behalf. She described her relationship with the children when they were young and stated that, once she and Father were no longer together, it became increasingly difficult to get him to help with the children. She filed to get the order for 50-50 parenting time. Mother discussed the things she did during her incarceration to better herself, including getting her GED and taking a parenting class. Mother described the visitation with the children while she was incarcerated. She stated that A.B. would talk about school, sing her ABCs, and count to one hundred. The child would tell Mother about things they did at home, like making a gingerbread house and helping Stepmother. Mother stated that, after she learned that the children were experiencing negative effects as a result of the visits to the jail, she wrote the court and asked that the visits be discontinued because she did not want the children to have to go through that. After the court discontinued the visits, Stepmother voluntarily brought the children for a visit in July 2014. Decision of Trial Court The trial court took the case under advisement and entered a final judgment on May 20, 2016 in which it concluded that the petitioners had “carried their burden of establishing by clear and convincing evidence that the Respondent’s parental rights to both children should be terminated and that the stepmother should be allowed to adopt both children.” Issues on Appeal On appeal, Mother asserts that the trial court erred in determining that the petitioners proved, by clear and convincing evidence, that her activity prior to her incarceration in December 2012 exhibited a wanton disregard for the welfare of the children. Mother further argues that the trial court erred in concluding that termination of her parental rights is in the best interest of the children. STANDARD OF REVIEW The standard for appellate review of parental termination cases was recently reiterated by the Tennessee Supreme Court: An appellate court reviews a trial court’s findings of fact in termination proceedings using the standard of review in Tenn. R. App. P. 13(d). Under Rule 13(d), appellate courts review factual findings de novo on the record and accord these findings a presumption of correctness unless the evidence preponderates otherwise. In light of the heightened burden of proof in -8- termination proceedings, however, the reviewing court must make its own determination as to whether the facts, either as found by the trial court or as supported by a preponderance of the evidence, amount to clear and convincing evidence of the elements necessary to terminate parental rights. The trial court's ruling that the evidence sufficiently supports termination of parental rights is a conclusion of law, which appellate courts review de novo with no presumption of correctness. Additionally, all other questions of law in parental termination appeals, as in other appeals, are reviewed de novo with no presumption of correctness. In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted), cert. denied sub nom. Vanessa G. v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016). ANALYSIS A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. The State may interfere with parental rights in certain circumstances. In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In the Matter of Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). Once a ground for termination is established by clear and convincing evidence, the trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination.” Id. at 254. The existence of a ground for -9- termination “does not inexorably lead to the conclusion that termination of a parent’s rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006). (1) The only ground for termination at issue in this case is abandonment as defined by the following portion of Tenn. Code Ann. § 36-1-102(1)(A)(iv): A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and . . . the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child. Unlike the other forms of abandonment included (but not quoted above) in this subsection, abandonment by wanton disregard is not limited to the four months immediately preceding the parent’s incarceration. In re Audrey S., 182 S.W.3d at 871. In fact, “the conduct may occur before the birth of the child whose welfare is thereby put at risk.” In re T.M.H., No. M2008-02427-COA-R3-PT, 2009 WL 1871873, at *7 (Tenn. Ct. App. June 29, 2009). The wanton disregard test for abandonment “reflects the commonsense notion that parental incarceration is a strong indicator that there may be problems in the home that threaten the welfare of the child.” In re Audrey S., 182 S.W.3d at 866. A parent’s incarceration acts as “a triggering mechanism that allows the courts to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child.” Id. This court has “repeatedly held that probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child.” Id. at 867-68. In applying these principles to the facts of this case, we are required to find, by clear and convincing evidence, that Mother’s actions prior to her incarceration exhibit a wanton disregard for the welfare of the children. The trial court’s findings of fact and conclusions of law include the following: In January 2010, the Mother was convicted of shoplifting at Walmart for taking a pregnancy test from the store shelves and using it in the store’s restroom. On September 16, 2010, while living with the Father, the Mother sold some of her prescription pills to a person working with law enforcement. She settled her drug sale charge with a guilty plea and a - 10 - three-year sentence suspended with probation. On December 29, 2011, she was arrested and charged with a misdemeanor drug violation and a charge of driving under the influence of an intoxicant. In March 2012, she settled those misdemeanor offenses along with the charge of violating her probation by agreeing to a 45-day sentence, which she served in about 22 days. During the time the Mother was in jail, the children stayed with her parents or the Father’s parents, because the Father also spent ten days in jail at approximately the same time for driving while his license was suspended. Both parents had their driver’s licenses suspended, because of two motor vehicle accidents when she was driving a vehicle in his name and neither were able to satisfy the resulting civil judgments. .... The Mother’s disregard for the welfare became wanton when she entered into a new relationship with a man named Glen Miller in October 2012. Either the Mother, Mr. Miller, or both apparently angered someone in some way unknown to the Court, because in November the Mother called the Father and said that she was in danger and the children were not safe with her. She delivered the children to the Father for an indefinite period. She got them for a few hours on Thanksgiving and for a few hours in December when the Mother’s grandmother died, but otherwise did not see them for a month or so preceding her arrest with Mr. Miller in Davidson County on December 12, 2012. She and Mr. Miller left Maury County for Memphis on December 5, 2012. She was arrested in Davidson County on December 12, and charged with possession of a gun with an altered serial number, a felon in possession of a firearm, and driving while her license was revoked. She settled those charges with an agreement to serve one year in Davidson County consecutive to her three-year sentence package for which she was on probation in Maury County. While still in Davidson County custody, she was taken to Maury County on June 20, 2013, and settled her probation violation charges with an agreed full revocation for service of the three-year sentence. She still had some weeks to serve in Davidson County and was not released until July 2013. Davidson County made the mistake of not notifying Maury County of her release, and she remained at large until she turned herself in on August 23, 2013, when she was also appearing for a child support enforcement proceeding in Maury County. From August 23, 2013, she remained continuously in custody in the Maury County Jail until she finished her three-year sentence on December - 11 - 4, 2014. On that same day, just hours before her release, she was served with a copy of the complaint and a summons in this civil action by which [the petitioners] seek to terminate her parental rights. As a result of the gun charges with Mr. Miller in December 2012, she spent over 700 days in jails in Davidson and Maury Counties, a clear majority of her youngest child’s life as of the date of this petition on December 4, 2014. It is her conduct while on probation that constitutes clear and convincing evidence of a wanton disregard for the welfare of her children. The Mother admits that she started using marijuana at age 15 and has over time used cocaine and opiates. She even admits possessing and using marijuana while she was on probation. After this litigation began, the guardian ad litem for the children asked the Mother to submit to a drug test, which she failed for the use of marijuana while this termination litigation was pending. At trial, she says she does not need rehab, but would agree to rehab if made a condition for reestablishing a relationship with her children. When asked why she could not stay clean, her excuse was that she was “not able to see or touch my kids.” .... . . . It is undisputed that the Mother had been incarcerated during 23 of the 24 months immediately preceding the institution of this action. Her conduct leading to that incarceration amounted to a wanton disregard for the welfare of the children. Therefore, this Court concludes that her conduct during November and December of 2012 results in the legal conclusion that she abandoned her children, thereby justifying a termination of her parental rights. While Mother is to be commended for her efforts to provide financial support for the children, her criminal convictions, probation violations, incarceration, and substance abuse have placed her children in danger. Mother’s actions show a failure to act in the interest of her children on a consistent basis. This court has stated that “a parent’s poor judgment and bad acts that affect the children constitute a wanton disregard for the welfare of the children.” State v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009) (citing State v. Harville, No. E2008-00475-COA-R-3-PT, 2009 WL 961782, at *7 (Tenn. Ct. App. Apr. 9, 2009)). Mother has exercised poor decision making and has committed criminal acts, contrary to the welfare of her children. We have determined that clear and convincing evidence supports the trial court’s conclusion that Mother’s actions prior to her incarceration exhibit a wanton disregard for the welfare of the children. (2) - 12 - Having determined that clear and convincing evidence exists to terminate Mother’s parental rights based on a finding of abandonment by wanton disregard, we next consider whether the trial court properly determined that termination is in the children’s best interest. See Tenn. Code Ann. § 36-1-113(c)(2). “Facts relevant to a child’s best interests need only be established by a preponderance of the evidence, although [the petitioners] must establish that the combined weight of the proven facts amounts to clear and convincing evidence that termination is in the child’s best interests.” In re Carrington H., 483 S.W.3d at 535 (citing In re Kaliyah, 455 S.W.3d 533, 555 (Tenn. 2015)). The non-exclusive factors a trial court is to consider in determining whether terminating a parent’s rights to a child is in the child’s best interest are set forth in Tenn. Code Ann. § 36-1-113(i): (1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian; (2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible; (3) Whether the parent or guardian has maintained regular visitation or other contact with the child; (4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child; (5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition; (6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household; (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol, controlled substances or controlled substance analogues as may render the parent or guardian consistently unable to care for the child in a safe and stable manner; (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or (9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to § 36-5-101. Every factor need not be applicable for the trial court to determine it is in the best interest of a child for a parent’s rights to be terminated. See In re Audrey S., 182 S.W.3d at 878. - 13 - The best interest analysis is “a fact-intensive inquiry” requiring the court to consider the unique facts of the case “from the child’s, rather than the parent’s, perspective.” Id. (citing White v. Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004)). In concluding that termination of Mother’s rights was in the best interest of the children, the trial court found, in pertinent part: The children have not asked about their Mother in more than a year’s time, and it would be extremely disruptive to their lives for their Mother at this late date to try to reestablish a relationship. Even though the Mother has been out of jail since December 4, 2014, and has been employed most of that time, she has not been able to get her driving privileges restored and is sharing a room with her father in a multi-unit half-way house operated by a substance abuse rehabilitation center. It is, therefore, unlikely that the juvenile court would restore any visitation privileges to the Mother in the foreseeable future. This Court recognizes and applauds that the Mother has made employment progress, has eliminated Mr. Miller from her life, and may well be on a path to a better life for herself, but the Court has no confidence in her ability to provide a normal life for these children even with alternative parenting responsibility. . . . In spite of the Father’s admitted shortcomings, his stable relationship with his wife and the children makes it best for the children to become permanent members of their family, without a risk of disruption from [Mother]. The trial court also emphasized the close relationship between the children and Stepmother and Stepmother’s stabilizing influence in their lives. The evidence in the record supports the trial court’s findings by a clear and convincing standard. As late as a month before the hearing, Mother continued to use drugs and, even at the hearing, she denied needing rehabilitation services. At the time of the hearing, Mother remained unable to care for the children in a safe and stable manner. See Tenn. Code Ann. § 36-1-113(i)(1) & (7). Furthermore, Mother’s criminal behavior leading to incarceration made it difficult for her to maintain a meaningful relationship with the children, especially the younger child. See Tenn. Code Ann. § 36-1-113(i)(3) & (4). We affirm the trial court’s determination that the termination of Mother’s parental rights is in the children’s best interests. - 14 - CONCLUSION The decision of the trial court is affirmed. Costs of appeal are assessed against the appellant, Ashley M.H., and execution may issue if necessary. _________________________ ANDY D. BENNETT, JUDGE - 15 -

01-03-2023

01-25-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142889/

OFFICE OF THE AlTORNEYCSENERAL OF TEXAS AUSTIN Honorable John C. Merburger bounty Attorney, Fayette Couaty LI Grange, Texas Deer Sir r we eohowledge rece ter dated April 25, 1941, with atteo an 'es8lgnment end transfer of wage Bsuleh Thompson on April 9, 194l, w h the County Superin- tendent or Faye in your letter that the a8algnor 1 oommon eohool dim- triot8 0r Feye ur oplnlon in reaponae tb the r0ii0d .ebove question 16 entswered in how should ruoh payzm&s be made? sable to mite one Voucher in the teaoher's salary earned payable to end assignor or one to the assignee gnment end one to the earignor for the balano e9 “3. Ii the iirst question ia answered in the arrirmative may the County 3Up8rint8ndtsnt require that the original asrlgnment be deposited with him berore he oen be held liable for iallure to meke payment in aooordanoe with the request of the ar- uignse?w  291 Honoreblo John C. Marburger, peg0 2 Artiale 28834, Vernon’s Annotated Ststutea, enaated by the 46th Leglaletura, reeds, in part, as follows1 *Art. 26834. Assignment, transfer or pledge or compensation ot teaohera or aohool employees nYeotion 1. Deilnltlon-Teeoher end Sohool Baployee; The terms ‘teaoher,’ end 'Bohool entployee,l within the pro~ialona of thlr hat shell be held end deosd to embreoe and inolude any per- son employed by any Publio Sohool System, Indepen- dent Sohool Diatrlot, or CommonSchool District, in this Stete’ln en exeoutive, admlnlatretive or ’ olerloal oepeolty, or as e superintendent, prfnolpal, teaoher, or instructor, end any parson employed by a university, or oollego, or other educetlonel in- stitution in an exooutlve, adminiatretive or olericel oepaoity, or as 4 professor, or 1natruo- tor, or in any similar oapaoity. wee. 2. An assignment, trenafer, ple?,ge, or similar Instrument exeodted by any teeoher or aohool amployse, wherein any aalery or wages, or any lnter- eat therein or part thereof, then due or rhioh ney beoom due to auoh teaaher or aohool employee under en existing contract cl employment, shall be vslld and enioraeable, provided that suoh assignment, transfer, or pledge be in writing end aoknowledqed in the same menner es required ior the eoknowledgment oi tl deed or other instrument for registration, end provided further th&t if auoh instrument be executed by a mrrfed person it shall also be exeouted and eo- knowledged by his or her spouse in suoh manner. Suoh en assignment, trenaier, or pledge shall br valid only to the extent that the indebtedness secured thereby is a valid obligation. Any aohool district; oollegr, university or other sduoetional Inati~Utlon County Sup2rlntendent, or eny disbursing agent there&m shall be quthorlsed to honor suoh haalgnment without being lubjeot to any lieblllty thereior to the teacher or aohool employer so ereouting auoh aaaignment~ end any sum paid to any aaal~nee in aaoordenoe with the terms of any auoh eaalgnnent shell be deemed to bo a peymant to or ror the eooount oi such teaaher or sohool employee; but auoh assignment shall be valid and lntoroeeble only to the extent of any 8alary  292 Honorable John C. Ytirburger, page 3 whloh nay be due or may become due and eemed by suoh teaoher and lehool employee during the oontlnuanoa of his or her emplopmentby auoh aohool diatrlot, oollege, university, or aduca- tlonal inatitutl0n.e In OUT Gpinion No. C-2141, dated April 8, 1940, we held that the ebove quoted statate olearly authorlzea a teeoher to eaalgn his or her salary In the manner therein stipulated. We also held in the same opinion that It la the right and duty ot tte employing diatrlot to honor auoh asalgnmenta when the same are regularly ereouted snd duly presented by the erlrignee for payment. We have also held In our Opinion No. o-2643, dated August 27, 1940, that en aeslgnmcnt authorized by hrtlole 2883a which la not notarized es required by statute *Is entirely 1nvelld.e Aoosrding to the aopy of the assignment and trnnsrer forwarded to us in your letter, the assignment in thia instanoe waa not *aoknowledged lo the same manner as required for the BC- knowledgement of a deed or other instrument or regletretlonw as required by titio1.e 288%. It this la true with relerence to the oriqlnsl aaslgnment it is our aonsldered opinion that ths aaaignment in question la invalid. Opinion Ho. O-2643. For your lnformetlon and oonvenlenos we are enoloslng herewith a true end oorreot copy of our Opfnlon No. O-2141 end Opinion No. O-2643. In response to your queatlon number one, it is our opinion that aaslgnmenta of this nature, when exeoirted-and ao- knovledged in acoordanoo with tbo statutory prorlslona, are ralld and should be reoognlzed by the oounty superintendent. In reply to your second question, it is our opinion that If would be edvlaabJo to stake papent to the esaignee end assignor by aeparata touohera, This, however, la n metter that should be worked out by the oounty euperlntendent. Honorable John C. Marburger, page 4 In response to yo;rr third question, It is our opin- ion that the oounty superintendsnt tar the legal right to re- quire that the original assignment be deposited with him before payment is made to the assignee. The duly and legally lxeouted arsigamcat lr the only authority that the oounty superintendent has to make payment to anyone other than the assignor, an& we think good buaineas practioe requires that he insist oa the tiling with hilpof the original assignment before payment. is made ao- oordlng to its term3 aad provleionr. Trusting that we hare sufiiclently answered your inquiry, wo are Yours very truly XTTO:iY GE?iiRALOF TEXAS ATTORNEY- -.--- : tiEN.MA.Ij Assistant

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4023556/

In the United States Court of Appeals For the Seventh Circuit ____________________  Nos. 15‐2044, 15‐2082, 15‐2109  ALPHONSE D. OWENS,  Plaintiff‐Appellant,  v.  LVNV FUNDING, LLC,   Defendant‐Appellee.  ____________________  Appeal from the United States District Court for the  Southern District of Indiana, Indianapolis Division.  No. 1:14‐cv‐02083 — Jane E. Magnus‐Stinson, Judge.  ____________________    TIA ROBINSON,  Plaintiff‐Appellant,  v.  ECAST SETTLEMENT CORP., et al.,  Defendants‐Appellees.  ____________________  Appeal from the United States District Court for the  Northern District of Illinois, Eastern Division.  No. 1:14‐cv‐08277 — Manish S. Shah, Judge.  ____________________  2  Nos. 15‐2044, 15‐2082, 15‐2109  JOSHUA BIRTCHMAN,  Plaintiff‐Appellant,  v.  LVNV FUNDING, LLC, et al.,    Defendants‐Appellees.  ____________________  Appeal from the United States District Court for the  Southern District of Indiana, Indianapolis Division.  No. 1:14‐cv‐00713 — Jane E. Magnus‐Stinson, Judge.  ____________________  ARGUED JUNE 1, 2016 — DECIDED AUGUST 10, 2016  ____________________  Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit  Judges.  FLAUM, Circuit Judge. In each of these consolidated cases, a  debt  collector  filed  a  proof  of  claim,  defined  as  “a  written  statement setting forth a creditor’s claim,” Fed. R. Bankr. P.  3001(a),  for  a  time‐barred  debt  in  a  Chapter  13  bankruptcy  proceeding. After successfully objecting to the proof of claim,  the  debtor  sued  the  debt  collector  in  federal  court,  alleging  that the act of filing a proof of claim on a stale debt violates  §§ 1692e and 1692f of the Fair Debt Collection Practices Act,  15 U.S.C. §§ 1692 et seq. (“FDCPA”). In each case, the district  court  granted  the  defendant  debt  collector’s  motion  to  dis‐ miss. For the reasons that follow, we affirm those decisions.      Nos. 15‐2044, 15‐2082, 15‐2109  3 I. Background  The three consolidated cases currently before us are simi‐ lar in material respects. In each case, a debtor filed for bank‐ ruptcy under Chapter 13 of the Bankruptcy Code.1 The debtor  was  represented  by  counsel  throughout  the  proceedings.  In  addition, a trustee was assigned to the case.   During the bankruptcy proceedings, a debt collector sub‐ mitted a proof of claim for a “stale” debt, or a debt for which  the statute of limitations had expired.2 The debt collector was  not the original creditor, but instead a professional debt buyer  who  had  purchased  the  stale  obligation  at  a  fraction  of  the  debt’s face value. As required by Federal Rule of Bankruptcy  Procedure 3001, the proof of claim filed by the debt collector  accurately noted the origin of the debt, the date of the last pay‐ ment on the debt, and the date of the last transaction.   Realizing that the debt was time‐barred and thus subject  to  an  affirmative  defense,  the  debtor  objected  to  the  claim,  which  was  disallowed  and  eventually  discharged.  Shortly  thereafter, the debtor brought a separate suit in federal court  against the debt collector, alleging that the act of filing a proof  of claim on a time‐barred debt constituted a false, deceptive,  misleading,  unfair,  or  unconscionable  means  of  collecting  a  debt in violation of §§ 1692e and 1692f of the FDCPA.   In each case, the district court granted defendant’s motion  to  dismiss  under  Federal  Rule  of  Civil  Procedure  12(b)(6).                                                    1 The plaintiff‐debtors are Alphonse D. Owens, Tia Robinson, and Joshua  Birtchman.   2 The defendant‐debt collectors are LVNV Funding, LLC and eCast Settle‐ ment Corporation.  4  Nos. 15‐2044, 15‐2082, 15‐2109  Two  of  the  decisions—Owens  and  Birtchman—involved  the  same  defendant  and  were  decided  on  the  same  day  by  the  same district court judge. In those decisions, the district court  rejected  the  argument  that  the  act  of  filing  a  proof  of  claim  was deceptive or unfair, noting that the defendant was enti‐ tled to do so under the Bankruptcy Code. The district court  also observed that defendant’s proof of claim was complete,  accurate, and provided the date of the final payment; as such,  the court concluded that the proof of claim was not false or  misleading.   In Robinson, the district court likewise dismissed the plain‐ tiff’s complaint under Rule 12(b)(6), holding that filing a proof  of claim on a time‐barred debt was not a deceptive, false, or  misleading debt collection practice. The plaintiff then filed an  amended  complaint  in  which  she  added  additional  allega‐ tions  under  the  FDCPA.  The  district  court  dismissed  the  amended complaint as well, holding that the confirmation of  plaintiff’s bankruptcy plan barred her FDCPA claims under  the doctrine of res judicata. The plaintiffs in all three cases ap‐ peal.   II. Discussion  Plaintiffs contend that the district courts erred by granting  defendants’  motions  to  dismiss.  They  maintain  that  filing  a  proof of claim on a stale debt misleads the debtor about the  legal status of the debt and thus violates the FDCPA’s prohi‐ bition against false, deceptive, misleading, unfair, and uncon‐ scionable debt collection practices.3 Their argument has two                                                    3 The FDCPA prohibits the use of “any false, deceptive, or misleading rep‐ resentation  or  means  in  connection  with  the  collection  of  any  debt.”  Nos. 15‐2044, 15‐2082, 15‐2109  5 components. First, plaintiffs allege that the act of filing a proof  of  claim  on  a  time‐barred  debt  is  inherently  misleading  be‐ cause  “claim”  is  defined  to  include  only  legally  enforceable  obligations.  In  other  words,  plaintiffs  contend  that  because  the  claim  process  in  bankruptcy  is  reserved  for  enforceable  obligations,  filing  a  proof  of  claim  on  a  stale  debt  falsely  cloaks  the  underlying  obligation  with  an  air  of  legitimacy.  Second, plaintiffs contend that filing a stale proof of claim is  deceptive  because,  in  practice,  the  debtor  and  his  attorney  sometimes fail to object to the claim, allowing the debt collec‐ tor to collect on an unenforceable obligation. Plaintiffs rely on  our case law holding that the FDCPA prohibits creditors from  filing  lawsuits  to  collect  on  stale  debts.  Phillips  v.  Asset  Ac‐ ceptance, LLC, 736 F.3d 1076, 1079 (7th Cir. 2013). They allege  that  the  rationale  for  this  holding  also  applies  in  the  bank‐ ruptcy context.   We  review  a  dismissal  under  Rule  12(b)(6)  de  novo,  ac‐ cepting well‐pleaded allegations in the complaint as true and  drawing all reasonable inferences in the light most favorable  to the plaintiffs. Parish v. City of Elkhart, 614 F.3d 677, 679 (7th  Cir. 2010).  A. Definition of “Claim”  As an initial matter, we disagree with plaintiffs’ assertion  that the term “claim” includes only legally enforceable obli‐ gations, and that filing a proof of claim on a stale debt is there‐ fore  per  se  illegal  under  the  FDCPA.  The  Bankruptcy  Code  broadly defines a “claim” as a “right to payment, whether or                                                    § 1692e. The Act also prohibits the use of “unfair or unconscionable means  to collect or attempt to collect any debt.” § 1692f.  6  Nos. 15‐2044, 15‐2082, 15‐2109  not  such  right  is  reduced  to  judgment,  liquidated,  unliqui‐ dated, fixed, contingent, matured, unmatured, disputed, un‐ disputed, legal, equitable, secured, or unsecured[.]” 11 U.S.C.  § 101(5)(A). It would be strange to interpret “claim” as exclud‐ ing  legally  unenforceable  obligations  when  two  of  the  enu‐ merated examples—“contingent” and “unmatured” claims— afford the creditor no collection right under state law when  the  claim  is  filed  with  the  bankruptcy  court.4  See,  e.g.,  In  re  Chi., Milwaukee, St. Paul & Pac. R.R. Co., 6 F.3d 1184, 1192 (7th  Cir. 1993) (noting that contingent claims exist even before a  cause of action has accrued).   Moreover,  a  “claim”  is  defined  as  a  right  to  payment.  § 101(5)(A). In most jurisdictions, including Illinois and Indi‐ ana, the expiration of the statute of limitations period does not  extinguish  the  underlying  debt.  See  Mascot  Oil  Co.  v.  United  States, 42 F.2d 309, 311 (Ct. Cl. 1930), affʹd, 282 U.S. 434 (1931)  (“[T]he statute of limitations or other bar against a remedy for  the collection of a debt does not extinguish the liability there‐ for.”); Donaldson v. LVNV Funding, LLC, 97 F. Supp. 3d 1033,  1039 (S.D. Ind. 2015) (“It is true that [the creditor] cannot file  a lawsuit, but it is the law in Indiana that the debt is still owed.  The  statute  of  limitations  does  not  extinguish  the  debt,  it                                                    4 The dissent disagrees with our reliance on this statutory language. Alt‐ hough the dissent is correct that the statutory definition of claim does not  explicitly include time‐barred debts, the list is not exhaustive, and instead  sets forth examples of the types of debts that could constitute a claim. Our  point is not that time‐barred debts fit neatly into any of these categories  (although they are in fact contingent, as certain actions by the debtor can  restart the statute of limitations period even after it has run, see note 6 in‐ fra). Instead, we observe that by including these examples, the broad stat‐ utory definition of claim undermines plaintiffs’ argument that a claim in‐ cludes only legally enforceable obligations.  Nos. 15‐2044, 15‐2082, 15‐2109  7 merely  limits  avenues  of  collection.”);  Fleming  v.  Yeazel,  40  N.E.2d  507,  508 (Ill. 1942) (“[T]he statute of limitations  con‐ trols the remedy for recovery of the debt, but the debt remains  the same as before, excepting that the remedy for enforcement  is  gone.”  (citation  omitted)).  In  other  words,  a  time‐barred  debt is still a debt, even if the creditor cannot file a collection  suit. See Pearl–Phil GMT (Far E.) Ltd. v. Caldor Corp., 266 B.R.  575,  581  (S.D.N.Y.  2001)  (“Thus,  under  the  Code,  a  right  to  payment need not be currently enforceable in order to consti‐ tute a claim.”). We have also held that the fact that the statute  of limitations has run does not mean that all avenues of col‐ lection  are  prohibited.  See  McMahon  v.  LVNV  Funding,  744  F.3d 1010, 1020 (7th Cir. 2014) (holding that it is not “automat‐ ically  improper  for  a  debt  collector  to  seek  re‐payment  of  time‐barred debts” so long as the debt collector does not use  deceptive  practices).  Implicit  in  this  holding  is  the  under‐ standing that a creditor with a stale debt retains some right to  payment,  even  if  recourse  is  only  grounded  in  the  debtor’s  moral  obligation  to  pay.  Id.  (observing  that  “some  people  might consider full debt re‐payment a moral obligation, even  though the legal remedy for the debt has been extinguished”).  Therefore,  a  “claim”  in  bankruptcy  is  “more  extensive  than the existence of a cause of action that entitles an entity to  bring suit.” In re Keeler, 440 B.R. 354, 362 (Bankr. E.D. Pa. 2009)  (citing In re Remington Rand Corp., 836 F.2d 825, 831–32 (3d Cir.  1988)); In re Grossman’s, 607 F.3d 114, 121 (3d Cir. 2010) (hold‐ ing that a “claim” can exist in bankruptcy notwithstanding an  inability to commence an action under state law at the time of  filing). Further support for this interpretation comes from the  claim  allowance  process  set  forth  in  the  Bankruptcy  Code,  which  has  been  described  as  a  “sifting  process.”  Gardner  v.  New  Jersey,  329  U.S.  565,  573  (1947);  see  also  Travelers  Cas.  &  8  Nos. 15‐2044, 15‐2082, 15‐2109  Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443, 449 (2007)  (describing the claim allowance process). Once a debtor files  for bankruptcy, a bankruptcy estate is created that consists of  “all  legal or equitable interests of  the debtor … .” 11  U.S.C.  §§ 541(a)(1);  1306(b).  A  creditor  who  wishes  to  collect  on  a  debt may file a proof of claim, or “a written statement setting  forth a creditor’s claim.” Fed. R. Bankr. P. 3001(a); Travelers,  549 U.S. at 449 (“When a debtor declares bankruptcy, each of  its creditors is entitled to file a proof of claim … .”). A proof  of claim “constitute[s] prima facie evidence of the validity and  the  amount  of  the  claim,”5  but  not  all  claims  are  entitled  to                                                    5 In addition, a creditor who files a proof of claim certifies that the claim  is “not being presented for any improper purpose” and is “warranted by  existing law … .” Fed. R. Bankr. P. 9011(b)(1), (2). Sanctions are available  for violations of this rule. See In re Volpert, 110 F.3d 494, 501 n.11 (7th Cir.  1997);  see  also  11  U.S.C. § 105(a) (providing  that  a  bankruptcy  court  has  inherent  power  to  impose  sanctions).  During  oral  argument,  plaintiffs  contended for the first time that defendants’ conduct was eligible for sanc‐ tions  and  that  the  FDCPA  applies  to sanctionable  conduct.  Although at  least one bankruptcy court has imposed sanctions on a debtor who filed a  proof of claim on a time‐barred debt, others have refused to do so, and  this Court has not yet ruled on the propriety of sanctioning a debt collector  who engages in the type of conduct at issue in these cases. Compare In re  Sekema, 523 B.R. 651, 655 (Bankr. N.D. Ind. 2015) (imposing a $1,000 sanc‐ tion against a debt collector that filed time‐barred proofs of claim), with In  re Keeler, 440 B.R. at 366–67 (“Given that section 501(a) authorizes every  creditor holding a claim to file a proof of claim, even if that claim is later  disallowed under section 502(b), section 105(a) does not state a cause of  action to sanction such a filing.”); In re Simpson, No. 08‐00137, 2008 WL  4216317, at *3 (Bankr. N.D. Ala. Aug. 29, 2008) (holding that the creditor’s  act of filing a proof claim on a time‐barred debt was not sanctionable un‐ der § 105(a)); and In re Varona, 388 B.R. 705, 723–24 (Bankr. E.D. Va. 2008)  (same);  cf.  In  re  Fesco  Plastics  Corp.,  996  F.2d  152,  154  (7th  Cir.  1993)  Nos. 15‐2044, 15‐2082, 15‐2109  9 payment.  Fed.  R.  Bankr.  P.  3001(f).  Importantly,  the  bank‐ ruptcy court must, upon an objection by a party in interest,  disallow any claim that “is unenforceable against the debtor  …  under  any  agreement  or  applicable  law[.]”  11  U.S.C.  § 502(b)(1).  Furthermore,  the  Code  specifically  enumerates  statutes of limitation as one means of proving the unenforce‐ ability  of  a  claim.  § 558;  see  also  In  re  Keeler,  440  B.R.  at  360  (“Therefore, if as of the date of the debtor’s bankruptcy filing  a creditor’s claim was barred by the applicable statute of lim‐ itations, then the claim must be disallowed upon objection by  a party in interest.”).  Thus,  the  Bankruptcy  Code  contemplates  that  creditors  will  file  proofs  of  claim  for  unenforceable  debts—including  stale  debts—and  that  the  bankruptcy  court  will  disallow  those  claims  upon  the  debtor’s  objection.  Indeed,  filing  a  proof  of  claim  allows  the  debt  to  be  processed  in  the  bank‐ ruptcy proceeding, which is intended to be all‐encompassing.  In re Am. Reserve Corp., 840 F.2d 487, 489 (7th Cir. 1988) (“The  principal function of bankruptcy law is to determine and im‐ plement in a single collective proceeding the entitlements of  all concerned.”); In re Glenn, 542 B.R. 833, 841 (Bankr. N.D. Ill.  2016)  (“Above  all,  bankruptcy  is  a  collective  process,  de‐ signed to gather together the assets and debts of the debtor  and to effect an equitable distribution of those assets on ac‐ count of the debts. The more participation there is; the better  this process works.” (citing Levit v. Ingersoll Rand Fin. Corp.,  874  F.2d  1186,  1194  (7th  Cir.  1989));  1  NORTON  BANKR.  L.  &                                                    (“[W]hen a specific Code section addresses an issue, a court may not em‐ ploy  its  equitable  powers  to  achieve  a  result  not  contemplated  by  the  Code.”).   10  Nos. 15‐2044, 15‐2082, 15‐2109  PRAC. 3d § 3:9 (2016) (“A fundamental principle of the bank‐ ruptcy process is the collective treatment of all of a debtor’s  creditors at  one time.”).  In fact,  sometimes even Chapter  13  debtors—such  as  plaintiff  Owens—list  stale  debts  in  the  schedule  of  unsecured  debts  that  they  file  with  the  bank‐ ruptcy court. This is because debts that are not brought to the  bankruptcy  court’s  attention  (either  by  the debtor  or  by  the  creditor who files a proof of claim) will not be discharged, see  11 U.S.C. § 1328(a), and a debt that is not discharged remains  collectible, although the avenues for collection are limited. See  McMahon, 744 F.3d at 1020.6   It is true that debtors may fail to object to a proof of claim  for a stale debt. When that occurs, the debt becomes part of  the confirmed bankruptcy plan and the debtor is required to  pay a portion of it. To reduce the risk of this outcome, credi‐ tors are required to include details about the status and origin  of  the  debt  on  the  proof  of  claim  form.  Fed.  R.  Bankr.  P.  3001(c)(3).  The  most  recent  revision  to  the  Federal  Rules  of  Bankruptcy Procedure explains:  Because  a  claim  [based  on  consumer  credit  debts]  may  have  been  sold  one  or  more  times  prior  to  the  debtor’s  bankruptcy,  the  debtor  may not recognize the name of the person filing  the proof of claim. Disclosure of the information  required [under Rule 3001(c)(3)] will assist the                                                    6 In fact, the statute of limitations period can be restarted by the debtor’s  conduct, such as by making a payment on or promising to pay the debt.  See, e.g., 735 Ill. Comp. Stat. 5/13‐206. Of course, a debtor who alerts the  bankruptcy court to the existence of the time‐barred debt or who objects  to a proof of claim on a stale debt would secure a full discharge of the debt,  without any fear of it returning on some future occasion.   Nos. 15‐2044, 15‐2082, 15‐2109  11 debtor in associating the claim with a known ac‐ count. It will also provide a basis for assessing the  timeliness of the claim.  Fed. R. Bankr. P. 3001, Advisory Committee Notes (emphasis  added).   These  established  procedures—the  filing  of  the  proof  of  claim, the opportunity to object, and the required disclosure  on  the  proof  of  claim  form—confirm  that  the  Bankruptcy  Code  anticipates  that  creditors  will  file  proofs  of  claim  on  stale  debts.  Nonetheless,  plaintiffs  maintain  that  we  should  rely on their limited interpretation of “claim.” The only sup‐ port for their argument comes from a statement made in dicta  by the U.S. Supreme Court in Pennsylvania Department of Pub‐ lic Welfare v. Davenport, 495 U.S. 552 (1990). In that case, the  Court explained that a claim is a “right to payment,” and “a  ‘right to payment’ is nothing more nor less than an enforcea‐ ble obligation … .” Id. at 559.   Plaintiffs take this statement out of context. Davenport con‐ sidered whether restitution obligations imposed in state crim‐ inal  proceedings  were  “debts”  as  defined  by  11  U.S.C.  § 101(11). Id. at 558. Because “debt” is defined as “liability on  a claim,” the Court looked to the definition of “claim,” which  is defined as a “right to payment.” Id. (quoting § 101(4)(A)).  The petitioners argued that a restitution order could not rep‐ resent a “right to payment” because the obligation could only  be  enforced  by  threatening  to  revoke  probation,  and  not  in  civil proceedings. Id. at 558–59. The Supreme Court rejected  petitioners’ argument that the reason for an obligation or the  way that it was enforced could take it outside of the statutory  definition of “claim.” Id. at 560. In so doing, the Court noted  12  Nos. 15‐2044, 15‐2082, 15‐2109  that a right to payment is “nothing more nor less than an en‐ forceable obligation[.]” Id. at 559.  Taken in context, it is apparent that this statement was not  intended to address the issue of whether a “claim” includes  only enforceable obligations. See Johnson v. Midland Funding,  LLC,  528  B.R.  462,  466–67  (S.D.  Ala.  2015),  rev’d  on  other  grounds, 2016 WL 2996372 (11th Cir. May 24, 2016) (noting that  Davenport “cannot plausibly be read for the proposition that a  ‘right to payment’ … ceases to exist the moment the statute of  limitations  expires”).  Moreover,  the  Supreme  Court’s  treat‐ ment of this subject in other cases conflicts with plaintiffs’ in‐ terpretation.   The Supreme Court has repeatedly recognized that Con‐ gress intended for the term “claim” to have “the broadest pos‐ sible definition.” Davenport, 495 U.S. at 563–64 (internal quo‐ tation  marks  omitted);  see  also  FCC  v.  NextWave  Pers.  Commc’ns Inc., 537 U.S. 293, 302 (2003); Johnson v. Home State  Bank, 501 U.S. 78, 83 (1991); Ohio v. Kovacs, 469 U.S. 274, 279  (1985).  In Home  State  Bank,  the Supreme Court  explored  the  legislative background and history of the Code in evaluating  whether  a  mortgage  interest  could  be  characterized  as  a  “claim.” Id. at 85–87. The Court observed that unlike the mod‐ ern  Bankruptcy  Code,  the  pre‐1978  Code  did  not  contain  a  single definition for claim, but defined a claim for purposes of  corporate reorganizations as “includ[ing] all claims of what‐ ever  character  against  a  debtor  …  .”  Id.  at  85  (alteration  in  original) (quoting 11 U.S.C. § 506(1) (1976)). The Court noted  that  in  drafting  a  single  definition  of  “claim”  for  the  1978  Code,  Congress  intended  to  “adop[t]  an  even  broader  defini‐ tion of claim than [was] found in the [pre‐1978 Act’s] debtor  rehabilitation  chapters.”  Id.  at  86  (alterations  in  original)  Nos. 15‐2044, 15‐2082, 15‐2109  13 (quoting H.R. Rep. No. 95‐595, at 309 (1977), reprinted in 1978  U.S.C.C.A.N.  5963,  6266).  Congress  also  explained:  “By  this  broadest possible definition … the bill contemplates that all  legal obligations of the debtor, no matter how remote or contin‐ gent, will be able to be dealt with in the bankruptcy case. It  permits  the  broadest  possible  relief  in  the  bankruptcy  case.”  H.R.  Rep. No. 95‐595, at 309 (emphasis added). Indeed, since Dav‐ enport, the Supreme Court has clarified that a “claim” merely  includes  a  right  to  payment,  which  is  nothing  more  nor  less  than an enforceable obligation. See NextWave, 537 U.S. 302–03.   We therefore decline to adopt plaintiffs’ limited interpre‐ tation  of  “claim”  and  hold  that  a  proof  of  claim  on  a  time‐ barred  debt  does  not  purport  to  be  anything  other  than  a  claim subject to dispute in the bankruptcy case. Filing such a  proof of claim is not inherently misleading or deceptive.   B. The FDCPA  The fact that the Bankruptcy Code permits creditors to file  proofs of claim on stale debts does not conclusively answer  the  question  presented  in  this  case—whether  defendants’  conduct violated the FDCPA. See Randolph v. IMBS, Inc., 368  F.3d  726,  731  (7th  Cir.  2004)  (holding  that  the  Bankruptcy  Code  did  not  implicitly  repeal  the  FDCPA).  Thus,  we  must  determine whether defendants’ attempts to collect on plain‐ tiffs’ time‐barred debts in bankruptcy were false, deceptive,  or misleading under the FDCPA.   Plaintiffs argue that defendants’ conduct was deceptive or  unfair  because  their  business  model  depends  on  the  reality  that  the  debtor,  the  trustee,  and  the  debtor’s  attorney  will  sometimes  fail  to  object  to  the  stale  claims.  In  other  words,  plaintiffs contend that creditors take advantage of the fact that  14  Nos. 15‐2044, 15‐2082, 15‐2109  the  bankruptcy  process  will  sometimes  “break  down  and  fail.”  Plaintiffs  rely  on  Phillips  v.  Asset  Acceptance,  LLC,  in  which we held that filing a state court lawsuit to collect on a  time‐barred debt violates the FDCPA. 736 F.3d at 1078. In Phil‐ lips, we explained that suing to collect on an old debt was mis‐ leading or deceptive because the consumer might not recall  the  debt  or  have  evidence  to  mount  a  statute  of  limitations  defense; in fact, an unsophisticated consumer might not even  be  aware  of  the  statute  of  limitations  defense.  And  “even  if  the consumer realizes that she can use time as a defense, she  will more than likely still give in rather than fight the lawsuit  because she must still expend energy and resources and sub‐ ject herself to the embarrassment of going into court ….” Id.  at 1079 (quoting Kimber v. Fed. Fin. Corp., 668 F. Supp. 1480,  1487 (M.D. Ala. 1987)). Plaintiffs contend that these concerns  are likewise present in the bankruptcy context.   There is a circuit split on the issue of whether filing a proof  of claim on a stale debt in bankruptcy is a misleading or de‐ ceptive  act  prohibited  by  the  FDCPA.  In  Crawford  v.  LVNV  Funding, LLC, 758 F.3d 1254, 1259–60 (11th Cir. 2014), cert. de‐ nied, 135 S. Ct. 1844 (2015), the Eleventh Circuit relied on Phil‐ lips to hold that it is. The Court reasoned that the act of filing  the proof of claim “create[d] the misleading impression to the  debtor that the debt collector can legally enforce the debt.” Id.  at 1261. In so holding, the Eleventh Circuit relied on the “least  sophisticated”  consumer  standard,  which  asks  whether  an  unsophisticated consumer would be misled by the debt col‐ lector’s conduct. Id.   The Second Circuit reached a different conclusion in Sim‐ mons v. Roundup Funding, LLC, 622 F.3d 93, 94 (2d Cir. 2010).  In that case, the debtor objected to an inflated proof of claim  Nos. 15‐2044, 15‐2082, 15‐2109  15 and  the  bankruptcy  court  ultimately  reduced  the  claim  by  more than half. Id. at 95. The debtor then sued the creditor in  federal court, alleging that the creditor violated the FDCPA  by  misrepresenting  the  amount  of  the  debt.  Id.  The  district  court dismissed the suit and the Second Circuit affirmed. Id.  The Second Circuit noted that federal district courts across the  country  have  held  that  the  act  of  filing  a  proof  of  claim  in  bankruptcy  court  is  not  an  abusive  debt  collection  practice  proscribed by the FDCPA, even if the claim is invalid or un‐ enforceable.  Id.  at  95–96.  The  Second  Circuit  reasoned  that  debtors who are under protection of the bankruptcy court do  not  need  additional  protection  from  debt  collectors  because  the bankruptcy process affords sufficient remedies for abuse.  See id. at 96.7 Recently, the Eighth Circuit relied on Simmons  when  rejecting  a  plaintiff‐debtor’s  request  to  extend  the  FDCPA to time‐barred proofs of claim in a case with nearly  identical  facts  to  the  cases  currently  before  us.  See  Nelson  v.  Midland  Credit  Mgmnt.,  No.  15‐2984,  2016  WL  3672073  (8th  Cir. July 11, 2016).                                                     7 At oral argument, plaintiffs contended that the Second Circuit cast doubt  on the continuing validity of Simmons in Garfield v. Ocwen Loan Servicing,  LLC, 811 F.3d 86 (2d Cir. 2016). We disagree. The plaintiff in Garfield filed  a suit in district court against a creditor who attempted to collect on a debt  by threatening foreclosure and sending a delinquency notice, even though  the debt had been discharged in the debtor’s Chapter 13 bankruptcy. Id. at  88.  In  holding  that  the  plaintiff‐debtor  had  stated  a  claim  for  a  FDCPA  violation, the Second Circuit clarified that the Bankruptcy Code did not  implicitly repeal the FDCPA. Id. at 91–92 (citing Randolph, 368 F.3d at 730).  The Second Circuit did not abandon the rationale underlying Simmons— that  there  is  less  of  a  need  to  protect  debtors  who  are  protected  by  the  bankruptcy court.   16  Nos. 15‐2044, 15‐2082, 15‐2109  Like the Eighth Circuit, we decline to follow the Eleventh  Circuit’s approach. See id. at *2. As an initial matter, we note  that the concerns identified in Phillips regarding the mislead‐ ing or deceptive nature of the conduct are less acute when a  proof of claim is filed in bankruptcy, especially in a counseled  case, as opposed to when a lawsuit is filed in state or federal  court.8 First, because the proof of claim is required to inform  the debtor about the age and origin of the debt, the consumer  need not have a memory of it or records documenting it to file  an objection—the affirmative defense is evident on the face of  the claim. See In re La Grone, 525 B.R. 419, 427 (Bankr. N.D. Ill.  2015) (“Under Bankruptcy Rule 3001(c)(3), a claim for credit  card debt … must list the creditor who held the debt  at the  time of the account holder’s last transaction, the date of the  last transaction, the date of the last payment, and the date the  account was charged to profit or loss… . [Therefore,] a debtor  in bankruptcy should always have the information needed to  determine whether the statute of limitations for a claim has  expired.”). Second, as in the cases before us, debtors filing for  bankruptcy are usually represented by attorneys who are fa‐ miliar  with  the  statutes  of  limitations  for  different  types  of                                                    8 The dissent reads Phillips and McMahon as precluding “any use of legal  process” to collect on a stale debt. We do not read those cases as announc‐ ing  a  broad  rule  of  this  kind.  Phillips  outlawed  lawsuits  to  collect  stale  debts, and for the reasons discussed above, we conclude that the rationale  for that holding does not apply to the act of filing a proof of claim. The  proper inquiry, set forth in McMahon and Evory v. RJM Acquisitions Fund‐ ing  LLC,  for  evaluating  other  types  of  collection  activities  employed  by  debt collectors is whether the collection effort would mislead the recipient  of the communication (in the cases before us, the debtor’s lawyer or bank‐ ruptcy  trustee)  into  believing  that  the  debt  is  legally  enforceable.  See  McMahon,  744  F.3d  at  1020;  Evory  v.  RJM  Acquisitions  Funding  LLC,  505  F.3d 769, 774 (7th Cir. 2007).  Nos. 15‐2044, 15‐2082, 15‐2109  17 debt. Even in other cases, when the debtor proceeds pro se, a  bankruptcy trustee who is duty‐bound to object to improper  claims is appointed to oversee the proceedings. In addition, a  debtor  who  has  initiated  bankruptcy  proceedings  and  thus  demonstrated a willingness to participate in them is unlikely  to give in rather than fight the claim.9   Significantly, the Eleventh Circuit’s decision in Crawford is  inapposite in light of our precedent. In Evory v. RJM Acquisi‐ tions Funding LLC, 505 F.3d 769 (7th Cir. 2007), we held that  the “unsophisticated consumer” standard is not appropriate  when evaluating whether communications made to a debtor’s  lawyer violated the FDCPA. Id. at 774. Rather, a court should  evaluate whether the communications would be likely to mis‐ lead a competent lawyer. Id. at 775; see also Bravo v. Midland  Credit Mgmt., Inc., 812 F.3d 599, 603 (7th Cir. 2016) (reaffirm‐ ing the “competent attorney” standard).  It is undisputed that plaintiffs were represented by coun‐ sel at all stages of their bankruptcy proceedings. Further, as  discussed, the bankruptcy process afforded additional protec‐ tions, including the appointment of trustees who were duty‐ bound to “examine proofs of claims and object to the allow‐ ance  of  any  claim  that  is  improper.”  11  U.S.C.  §§  704(a)(5);  1302(b)(1).  Therefore,  we  must  evaluate  defendants’  actions                                                    9 Plaintiffs contend that filing objections to time‐barred claims burdens the  debtor  and  the  bankruptcy  court  tasked  with  processing  the  objections.  But the costs associated with objecting to a proof of claim are not substan‐ tial, as the objection process is simple. As the National Association of Con‐ sumer  Bankruptcy  Attorneys  pointedly  acknowledged  in  their  amicus  brief supporting plaintiffs’ position, “this sort of motion practice is among  the simplest … that [a consumer bankruptcy attorney] encounters.”   18  Nos. 15‐2044, 15‐2082, 15‐2109  under  a  “competent  attorney”  standard.  Bravo,  812  F.3d  at  603.   We  conclude that, under this standard,  defendants’ con‐ duct was not deceptive or misleading. Plaintiffs do not allege  that the information contained in the proof of claim was mis‐ leading; instead, they admit that the proofs of claim set forth  accurate  and  complete  information  about  the  status  of  the  debts. See Donaldson, 97 F. Supp. 3d at 1038 (“A factual, true  statement about the existence of a debt and the amount … is  neither false nor deceptive.”); cf. Sheriff v. Gillie, 136 S. Ct. 1594,  1601 (2016) (noting that accurate statements are not  false  or  misleading for purposes of the FDCPA). Therefore, to deter‐ mine whether the statute of limitations had run, plaintiffs’ at‐ torneys had to look no further than the proof of claim form,  which  included  the  date  of  the  most  recent  payment.  With  that information, a reasonably competent lawyer would have  had no trouble evaluating whether the debt was timely. See  Birtchman v. LVNV Funding, LLC, No. 1:14‐cv‐00713, 2015 WL  1825970, at *8 (S.D. Ind. Apr. 22, 2015) (“A competent lawyer  would undoubtedly be aware of the statute of limitations de‐ fense that is common in most areas of law and permitted by  the Bankruptcy Code.”). In sum, plaintiffs have failed to pre‐ sent any evidence that defendants engaged in deceptive, mis‐ leading, unfair,  or otherwise abusive conduct prohibited by  the FDCPA.  We are not unsympathetic to plaintiffs’ concern that in cer‐ tain  cases,  debtors  and  their  representatives  fail  to  object  to  claims for unenforceable debts, which then become part of the  bankruptcy  plan.  This  outcome  harms  not  only  the  debtor,  who is forced to pay a portion of the stale debt out of limited  means,  but  also  creditors  with  legally  enforceable  debts  Nos. 15‐2044, 15‐2082, 15‐2109  19 whose share of the pie is reduced because an additional cred‐ itor is claiming a piece. See Crawford, 758 F.3d at 1261. But the  risk of this outcome in such cases is not sufficient to support  a FDCPA claim in the cases currently before us, where plain‐ tiffs’  attorneys  successfully  objected  to  proofs  of  claim  that  were neither false nor misleading.  The dissent faults us for supposedly ignoring the realities  of  the  bankruptcy  process.  To  be  sure,  in  certain  cases,  the  debtor proceeds pro se and lacks the sophistication to under‐ stand that a claim for a stale debt is subject to disallowance,  and the trustee does not abide by his statutory duty to review  all claims filed in the debtor’s case. Respectfully, the dissent  attacks a straw man: this opinion does not foreclose relief un‐ der the FDCPA in cases involving such facts. We reiterate that  any debt collection practice that “misleads an unsophisticated  consumer to believe a time‐barred debt is legally enforceable”  violates the FDCPA. McMahon, 744 F.3d at 1020. The dissent  decries a problem that is not present here—in these cases, the  debtors were represented by attorneys and were able to secure  complete discharge of the time‐barred debts in their Chapter  13 bankruptcy proceedings without undue cost or burden.   Of course, if defendants had filed proofs of claim with in‐ accurate information, or had otherwise engaged in deceptive  or misleading debt collection practices, plaintiffs would have  a cause of action under the FDCPA. See McMahon, 744 F.3d at  1020; Phillips, 736 F.3d at 1079. But in these cases, the district  courts did not err in concluding that plaintiffs had not stated  claims for relief under the FDCPA.10                                                    10 Because we affirm the district courts’ conclusion that defendants’ con‐ duct  did  not  violate  the  FDCPA,  we  do  not  address  the  district  court’s  20  Nos. 15‐2044, 15‐2082, 15‐2109  III. Conclusion  For the foregoing reasons, the judgments are AFFIRMED.                                                      holding in Robinson that a confirmed Chapter 13 plan bars FDCPA claims  that could have been filed in the bankruptcy proceeding under the doc‐ trine of res judicata.   Nos. 15‐2044, 15‐2082, 15‐2109                                                    21     WOOD, Chief Judge, dissenting. This court held, in Phillips  v.  Asset  Acceptance,  LLC,  736  F.3d  1076,  1079  (7th  Cir.  2013),  that the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.  §§ 1692 et seq., prohibits a creditor from filing a lawsuit in state  court to collect a debt for which the statute of limitations has  expired.  See  also  McMahon  v.  LVNV  Funding,  744  F.3d  1010,  1020 (7th Cir. 2014). Today, the majority holds that the creditor  may take comparable action within a bankruptcy proceeding,  by filing a proof of claim on a debt that it knows to be stale— an action the creditor will take knowing that it will result in  payment only if the staleness of the debt slips past the debtor,  her lawyer (if she has one), and the trustee, and thus become  collectible  through  the  bankruptcy  court  (at  the  expense  of  other creditors). They rely on the broad scope of the types of  claims that may or must be filed in bankruptcy, on the extra  protections they believe bankruptcy affords, and the fact that  the  type  of  limitations  bar  we  are  considering  here  cuts  off  only  the  right  to  sue,  not  the  cause  of  action  itself.  None  of  those rationales holds up under close inspection, in my view,  and so I dissent.  It is helpful to begin with a brief review of the holdings of  Phillips and McMahon. In Phillips, the plaintiff sought to bring  a class action against a debt collector that had sued her after  the  statute  of  limitations  on  the  underlying  creditor’s  claim  had run. If that was true, we said, citing Huertas v. Galaxy Asset  Mgmt., 641 F.3d 28, 32–33 (3d Cir. 2011) (per curiam); Harvey  v.  Great  Seneca  Financial  Corp.,  453  F.3d  324,  332–33  (6th  Cir.  2006); and Hekert v. MRC Receivables Corp., 655 F. Supp. 2d 870,  875–76  (N.D.  Ill.  2009),  the  debt  collector’s  suit  violated  the  FDCPA. We followed up on that statement in McMahon. Noth‐ ing  in  McMahon  suggested  that  a  lawsuit  based  on  a  time‐ barred  debt,  or  even  a  demand  for  payment  under  color  of  22  Nos. 15‐2044, 15‐2082, 15‐2109  legal right, is permissible, in the absence of an honest disclo‐ sure about the creditor’s loss of the right to take legal action.  Here is what we said:  We do not hold that it is automatically improper  for a debt collector to seek re‐payment of time‐ barred  debts;  some  people  might  consider  full  debt  re‐payment  a  moral  obligation,  even  though the legal remedy for the debt has been  extinguished. But, as we held in Phillips, supra, if  the debt collector uses language in its dunning  letter  that  would  mislead  an  unsophisticated  consumer into believing that the debt is legally  enforceable, regardless of whether the letter ac‐ tually threatens litigation …  , the collector has  violated the FDCPA. Because it is plausible that  an  unsophisticated  consumer  would  believe  a  letter  that  offers to “settle”  a debt implies that  the  debt  is  legally  enforceable,  it  was  correct  in Delgado to decline to dismiss the action at this  stage, and incorrect to dismiss the class allega‐ tions in McMahon.  The proposition that a debt collector violates the  FDCPA  when  it  misleads  an  unsophisticated  consumer  to  believe  a  time‐barred  debt  is  le‐ gally  enforceable,  regardless  of  whether  litiga‐ tion is threatened, is straightforward under the  statute [citing 15 U.S.C. § 1692e(2)(A), (5)].  744 F.3d at 1020. “Seeking” repayment is one thing: it could  be accomplished by a polite, non‐threatening letter advising  the debtor of the debt’s existence, and the fact that a lawsuit is  time‐barred. At most, the letter would represent an effort to  Nos. 15‐2044, 15‐2082, 15‐2109  23  persuade  the  debtor  to  pay,  based  on  whatever  advantage  payment might confer (perhaps a moral advantage, perhaps  a boost to one’s credit rating). This is in stark contrast with the  use of any type of legal process, whether a suit in state court,  a suit in federal court, or the filing of a claim in bankruptcy.  Those  are  all  an  entirely  different  matter,  and  nothing  in  McMahon condoned any use of any type of court to collect a  concededly stale debt. I take it that my colleagues agree with  me that proceedings in bankruptcy court “count” as a form of  judicial proceeding, given the fact that the bankruptcy court  (a unit of the federal district court, see 28 U.S.C. § 151) pre‐ sides over the legal process of collecting all good‐faith claims  against  the  estate,  amassing  the  assets  of  the  estate,  setting  priorities, identifying what can and cannot be discharged, and  then resolving who can be paid and how much. Unless there  is something in the Bankruptcy Code to distinguish the pro‐ ceedings in bankruptcy court from proceedings in the courts  involved  in  McMahon  and  Phillips,  that  is  enough  for  me  to  hold that the rule of those cases applies here as well.  The majority finds such a distinction in the definition of  the  word  “claim”  in  the  Bankruptcy  Code,  which  provides  that a claim is a “right to payment, whether or not such right  is reduced to judgment, liquidated, unliquidated, fixed, con‐ tingent,  matured,  unmatured,  disputed,  undisputed,  legal,  equitable, secured, or unsecured[.]” 11 U.S.C. § 101(5)(A). My  colleagues focus particularly on two of the items in this list— “contingent” and “unmatured” claims—as support for their  view that a clearly time‐barred claim may be submitted by a  debt collector consistently with this statute.  24  Nos. 15‐2044, 15‐2082, 15‐2109  Neither of those categories, however, covers a concededly  stale debt. A claim based on such a debt is not contingent, be‐ cause the expiration of the statute of limitations means that a  lawsuit to collect it is no longer available. There is no event  that could come to pass that could create an enforceable legal  obligation for the debtor to pay up—at least no contingency  that  does  not  fall  within  the  group  of  sharp  or  fraudulent  practices  that  Phillips  and  McMahon  hold  are  barred  by  the  FDCPA. It is true that certain actions by the debtor can re‐start  the statute of limitations after it has run, but the debtor will  not take those steps unless she is snookered into thinking that  the debt is still legally enforceable. Cf. Suesz v. Med‐1 Solutions,  LLC, 757 F.3d 636, 639 (7th Cir. 2014) (en banc) (condemning  collection tactic of suing in a court that is inconvenient to the  debtor, hoping to obtain a default judgment “for a debt that  the defendant doesn’t actually owe”). We should not distort  the meaning of the word “contingent” to include the possibil‐ ity of the debt collector’s successfully tricking the debtor into  paying.  A stale debt is certainly not “unmatured.” If anything, it is  overripe. Nor does the stale debt fit any other category in sec‐ tion 101(5)(A). I do not disagree with the notion, ante at n.4,  that the list in section 101(5)(A) is illustrative. But it has not  persuaded me that an effort to use legal process, hoping that  the debtor (and others) will fail to spot a clear limitations de‐ fense, falls within either the enumerated possibilities or any‐ thing  remotely  related  to  them.  Some  things  are  simply  too  speculative, or too much against public policy, to include. A  debtor could be induced to pay a fraudulent debt, too, but that  does not mean that the Bankruptcy Code should be distorted  into facilitating such a payment.  Nos. 15‐2044, 15‐2082, 15‐2109  25  It is important in this connection not to view the Code in  isolation from the Rules of Bankruptcy Procedure. The filing  of a proof of claim, like any other “petition, pleading, written  motion, and other paper,” is subject to Bankruptcy Rule 9011,  the counterpart to Federal Rule of Civil Procedure 11. By fil‐ ing the proof of claim, the filer “is certifying that to the best of  that person’s knowledge, information, and belief, formed af‐ ter  an  inquiry  reasonable  under  the  circumstances,  …  the  claims … are warranted by existing law[,] … [and] the allega‐ tions and other factual contentions have evidentiary support  … .” Fed. R. Bkr. P. 9011(b). No one—not a debt collector, not  any other kind of creditor—should be filing a proof of claim  that fails to comply with this rule. Public policy, expressed in  the Bankruptcy Rules, demands that we do not protect frivo‐ lous, bad‐faith, or unfounded claims. And a proof of claim is  no mere request on moral grounds to turn money over from  the bankruptcy estate to the claimant: it is a legal mechanism  through which the payment of that claim can be compelled, if  the claim is not disallowed by the bankruptcy court. Put dif‐ ferently, the bankruptcy process is one of the avenues of col‐ lection that the expiration of the statute of limitations closes  off for the creditor.  The concepts in Rule 9011 also supply a limitation on the  rule that I would apply here. Where an old debt is subject to  an ironclad statute of limitations defense, such that any suit  on that debt would amount to a violation of Federal Rule of  Civil Procedure 11 (and its counterparts in state court and un‐ der Bankruptcy Rule 9011), the debt should not be eligible to  be submitted in a proof of claim. If, on the other hand, there  is  a  good‐faith  doubt  about  the  applicability  of  a  statute  of  limitations,  then  scheduling  is  compatible  with  both  Civil  Rule  11  and  Bankruptcy Rule 9011,  because it is possible to  26  Nos. 15‐2044, 15‐2082, 15‐2109  imagine a state of affairs in which a legally enforceable obliga‐ tion exists. That leaves ample room for the operation of sec‐ tion  502(b)(1)  of  the  Bankruptcy  Code,  which  requires  the  bankruptcy court, upon objection from a party in interest, to  disallow any claim that “is unenforceable against the debtor  … under any … applicable law[.]” The statute of limitations  is  one  such  law,  11  U.S.C.  § 558,  and  there  will  be  cases  in  which its applicability is the subject of a fair dispute.  My colleagues imply that debtors may actually be better  off if the stale claims are submitted to the bankruptcy court,  because if the debtor, her lawyer, and the trustee (or one of  them) is vigilant, the filing of the proof of the stale claim will  be a meaningless act: the time‐barred debt will be disallowed,  and the debtor will have the protection of the discharge judg‐ ment. See ante at 9–10 & n.6. That is cold comfort to the debtor  who knows that the debt collectors are banking on those cases  where no one spots the stale claim—a claim on which an in‐ dependent  lawsuit  is  already  barred  by  McMahon  and  Phil‐ lips—and  it  instead  winds  up  as  a  recoverable  item.  Some‐ times people like the “belt‐and‐suspenders” approach, giving  them redundant protection of one kind or another, but there  is no justification for forcing this on them. The statute of lim‐ itations  itself  is  full  protection  against  a  lawsuit  on  a  stale  claim; it does not need to be supplemented by a bankruptcy  discharge.  That  is  why  the  majority’s  comment  that  “a  debt  that is not discharged remains collectible, although the ave‐ nues for collection are limited,” ante at 10, misses the boat. A  time‐barred debt cannot be enforced in a legal proceeding, even if  in a theoretical or moral sense the debt remains.  The majority also tries to shoehorn these stale debts into  the  “remote  or  contingent”  language  used  by  Congress  in  Nos. 15‐2044, 15‐2082, 15‐2109  27  H.R. Rep. No. 95‐595. Ante at 13. But the stale debt is not “re‐ mote.” A debt owed by a third party to an entity owned by  the  debtor  might  be  remote,  or  a  debt  Person  A  owes  to  Debtor,  who  then  owes  Creditor,  might  be  remote.  But  the  case before us now involves just a straightforward debt that  could have been enforced until the statute of limitations ex‐ pired. And I have already explained why these are not con‐ tingent debts—there are no contingencies, either anticipatory  or after‐the‐fact, on which its legal collectability depends.  The reason this case is important is because the protections  the majority believes exist in the bankruptcy courts are only  as good as the human actors working in those courts. The ma‐ jority notes, ante at 16, that “debtors filing for bankruptcy are  usually represented by attorneys … .” But “usually” does not  mean always. In the Bankruptcy Court for the Northern Dis‐ trict  of  Illinois,  in  the  first  five  months  of  2016  there  were  19,291  bankruptcy  filings;  of  that  number,  1,748  (about  9%)  were pro se. Over the course of a year, it is reasonable to con‐ clude that thousands of pro se litigants seek the services of that  one court. They tend to be unsophisticated (that is often why  they fell into financial trouble in the first place), and they eas‐ ily could be buffaloed into thinking that every proof of claim  represented a legal obligation, when the proof makes no men‐ tion of the limitations bar. It is unrealistic to think that the pro  se litigant or the busy trustee will catch every scheduled stale  claim—claims presented in filings that do not, in the only re‐ spect  pertinent  here,  provide  “accurate  and  complete  infor‐ mation”  about  the  matter,  because  they  are  mum  about  the  unenforceability of the debt. (Indeed, I would be surprised if  very many non‐lawyers understand what a statute of limita‐ tions is, much less what the difference is between a bar on re‐ covery and extinguishment of a claim.)  28  Nos. 15‐2044, 15‐2082, 15‐2109  My colleagues, ante at 19, accuse me of attacking a straw  man when I highlight the possibility of abuse, particularly for  pro  se  litigants.  I  beg  to  differ.  They  concede  that  the  bank‐ ruptcy court will disallow the stale debt as soon as it learns  about the limitations defense. Thus, as I indicated at the out‐ set, the scheduling of this debt represents only the hope that  it  will  slip  through  the  cracks  and  be  reborn  as  an  allowed  claim in bankruptcy. To the extent they are leaving the door  open for an FDCPA claim when a bankruptcy petitioner (pro  se or otherwise) is misled by the scheduling of the stale claim,  I  welcome  that  limitation,  though  its  scope  is  unclear  given  the rationale the majority has adopted.   The majority stresses that there is an existing circuit split  on this issue, and so we need only to line up on one side or  the  other.  In  keeping  with  our  decisions  in  Phillips  and  McMahon, I would align this court with the Eleventh Circuit,  see  Crawford  v.  LVNV  Funding,  LLC,  758  F.3d  1254,  1259–60  (11th Cir. 2014), rather than the Second and Eighth, see Sim‐ mons v. Roundup Funding, LLC, 622 F.3d 93 (2d Cir. 2010); Nel‐ son  v.  Midland  Credit  Mgmt.,  Inc.,  No.  15‐2984,  2016  WL  3672073 (8th Cir. July 11, 2016). I would hold that the sched‐ uling  of  a  proof  of  claim  on  a  debt  that  undisputedly  is  no  longer  collectible  through  judicial  proceedings  because  the  statute of limitations has expired violates the FDCPA.   I respectfully dissent.

01-03-2023

08-11-2016

https://www.courtlistener.com/api/rest/v3/opinions/4127757/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 94-805 of : : November 18, 1994 DANIEL E. LUNGREN : Attorney General : : GREGORY L. GONOT : Deputy Attorney General : : ________________________________________________________________________________ THE HONORABLE K. MAURICE JOHANNESSEN, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following question: Are the provisions of Penal Code section 313.1 that will be effective January 1, 1995, concerning the sale of harmful matter in vending machines located on public property constitutional? CONCLUSION The provisions of Penal Code section 313.1 that will be effective January 1, 1995, concerning the sale of harmful matter in vending machines located on public property are constitutional. ANALYSIS The question presented concerns the constitutionality of a 1994 amendment (Stats. 1994, ch. 38, ' 1) to Penal Code section 313.1, 1 regulating the distribution of material which the Legislature has deemed harmful to minors. (See Carl v. City of Los Angeles (1976) 61 Cal. App. 3d 265, 269.) Effective January 1, 1995, subdivision (c)(2) of section 313.1 will state: 1 All undesignated section references are to the Penal Code. 1. 94-805 "Any person who knowingly displays, sells or offers to sell in any coin-operated vending machine that is not supervised by an adult and that is located in a public place, other than a public place from which minors are excluded, any harmful matter, as defined in subdivision (a) of section 313 shall be punished as specified in section 313.4."2 In addition, the 1994 amendment provides that certain actions taken by a vendor will serve as a defense in any prosecution based upon section 313.1, subdivision (c)(2). New subdivision (h) of section 313.1 will provide: "It shall be a defense in any prosecution for a violation of paragraph (2) of subdivision (c) that the defendant has taken either of the following measures to restrict access to the harmful matter by persons under 18 years of age: "(1) Required the person receiving the harmful matter to use an authorized access or identification card to the vending machine after taking reasonable measures to ascertain that the applicant was 18 years of age or older and has established a procedure to immediately cancel the card of any person after receiving notice, in writing or by telephone, that the code has been lost, stolen, or used by persons under the age of 18 years or that the card is no longer desired. 2 Subdivision (a) of section 313 defines harmful matter as follows: "`Harmful matter' means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. "(1) When it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the matter shall be judged with reference to its intended recipient group. "(2) In prosecutions under this chapter, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, that evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value for minors." Section 313.4 provides: "Every person who violates Section 313.1 . . . is punishable by fine of not more than two thousand dollars ($2,000), by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. However, if the person has been previously convicted of a violation of Section 313.1 . . . or of [sections 311-312.5 relating to obscene matter], the person shall be punished by imprisonment in the state prison." 2. 94-805 "(2) Required the person receiving the harmful matter to use a token in order to utilize the vending machine after taking reasonable measures to ascertain that the person was 18 years of age or older." Thus, effective January 1, 1995, criminal penalties will apply to the sale or display of harmful matter by means of an unsupervised vending machine located in a public place, other than a public place from which minors are excluded. However, as long as a prospective adult buyer may acquire an access or identification card or procure a token to operate the machine, no violation of paragraph (2) of subdivision (c) will be found. Because of the expense involved in either providing supervision or converting existing machines to a different access system, a publisher of adult material may find it economically infeasible to continue distributing such material through vending machines. Thus, the restrictions placed on the use of vending machines to sell or display matter that is harmful to minors may decrease such access to that material by adults. As First Amendment protections3 are applicable to the public distribution of newspapers and periodicals through newsracks (Kash Enterprises v. City of Los Angeles (1977) 19 Cal. 3d 294, 302; Chicago Newspaper Publishers v. City of Wheaton (N.D. Ill. 1988) 697 F. Supp. 1464, 1466), the issue to be determined is whether the access limitations placed upon adults by the 1994 amendment to section 313.1 are constitutionally permissible.4 Our first task in resolving this question is to ascertain which of two constitutional standards relating to government regulation of speech activity is applicable to the 1994 statutory amendment. These standards were described by the United States Supreme Court in Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 as follows: "`[R]egulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.' [Citation.] Enforcement of such a content-based regulation requires a showing that it is `necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.' [Citations.] In contrast, `so-called "content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.'" (Id., at p. 47.) 3 The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides in part: "Congress shall make no law . . . abridging the freedom of speech or of the press . . . ." Similarly, subdivision (a) of section 2 of article I of the California Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." 4 We are not concerned here with the constitutionality of the access prohibition as it pertains to minors. "Harmful matter" has been determined by the state to be obscene as to youths. (American Booksellers Assn., Inc. v. Superior Court (1982) 129 Cal. App. 3d 197, 203; Carl v. City of Los Angeles, supra, 61 Cal.App.3d at 269.) "The state may adopt a standard of obscenity applicable to minors which is broader than that applicable to adults and which denies minors access to materials to which adults could not be denied access." (American Booksellers Assn., Inc. v. Superior Court, supra, 129 Cal.App.3d at 201, citing Ginsberg v. New York (1968) 390 U.S. 629.) 3. 94-805 In Renton, supra, the regulation in question was a zoning ordinance which prohibited the location of adult motion picture theatres within 1,000 feet of any residential zone, dwelling, church, park, or school. The court found the challenged ordinance to be content-neutral because it was "aimed not at the content of the films shown at `adult motion picture theatres,' but rather at the secondary effect of such theatres on the surrounding community [i.e., urban blight]." (Ibid.) On the other hand, in Sebago, Inc. v. City of Alameda (1989) 211 Cal. App. 3d 1372, the court found that a city ordinance restricting the location of public vending machines for adult-oriented newspapers was subject to the more restrictive content-based standard.5 One aim of the ordinance was to restrict access by minors to adult newspapers, and in this regard the court stated: "The aim of restricting the access of minors to adult newspapers concerns direct listener reaction to speech and is thus content-based. As the United States Supreme Court has explained, `Listener's reactions to speech are not the type of "secondary effects" we referred to in Renton. To take an example factually close to Renton, if the ordinance there was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate. The hypothetical regulation targets the direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech.' (Boos v. Barry (1988) 485 U.S. 312, 321.) Here, the city's concern for exposure of minors to adult newspapers targets the direct impact of such newspapers, not a secondary feature that happens to be associated with their sales from newsracks." (Id., at p. 1384.) The court therefore concluded that the validity of the city ordinance must be determined under the standard applicable to content-based regulation, i.e., that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. (Id., at p. 1385.) As in Sebago, subdivision (c) of section 313.1 attempts to restrict access by minors to adult publications (containing harmful matter) and accordingly must be said to be concerned with direct listener reaction to speech. Consequently, its validity must be measured by the more rigorous content-based, rather than content-neutral, standard. In applying the content-based standard, the court in Sebago found that while the city's interest in restricting the unsupervised access of minors to adult bookstore materials was legitimate, the ordinance was too broad to either implicate a compelling state interest or to be considered narrowly drawn. The court pointed out that the ordinance was "not limited to obscenity, or even to matters deemed `harmful' to minors by Penal Code section 313, subdivision (a)." (Sebago, Inc. v. City of Alameda, supra, 211 Cal.App.3d at 1385; fn. omitted.) It therefore found: 5 It was conceded by the city that the publications in question contained no obscenity and were not harmful to minors under state law. 4. 94-805 ". . . If such a publication is not harmful to minors, there cannot possibly be a compelling state interest in protecting them from it, sufficient to justify a content-based infringement of the First Amendment. Indisputably Alameda has a compelling interest in protecting minors from unsupervised access to harmful adult bookstore materials, but this ordinance is not narrowly drawn to achieve that end. It is so broad in scope as to apply to all manner of benign publications." (Id., at p. 1386.) Moreover, the court determined that the ordinance was not sufficiently focused to serve its purported purpose of restricting access: ". . . [T]he relationship between the ordinance and the asserted governmental interest is so tenuous as to fall short of constitutional sufficiency. [Citation.] The ordinance merely moves the newsracks away from residential areas. Any determined teenager can seek out the relocated newsracks. As Sebago points out, it is just as likely, if not more likely, that a minor will purchase an adult newspaper from a newsrack far away from the watchful eyes of parents and neighbors." (Ibid.) While the court ruled that the city ordinance violated the First Amendment to the United States Constitution as well as article I, section 2, of the California Constitution, it specifically noted that "[t]his conclusion does not leave government helpless to protect minors from unsupervised access to harmful pornography through newsracks; it just requires careful drafting by legislators." (Id., at p. 1387.) In contrast to the city ordinance in Sebago, the 1994 amendment of section 313.1 is limited to regulating vending machines which purvey material that the state has determined to be harmful to minors. Such focus meets the test of serving a compelling state interest. Nevertheless, that determination does not end our inquiry. In Sable Communications of California, Inc. v. Federal Communications Commission, et al. (1989) 492 U.S. 115, the United States Supreme Court upheld Congress' ban on "obscene" telephone calls but struck down the federal ban on "indecent" telephone calls. With respect to the latter, the court reasoned as follows: "Sexual expression which is indecent but not obscene is protected by the First Amendment . . . . The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. (Ginsberg v. New York, 390 U.S. 629, 639-640 (1968); New York v. Ferber, 458 U.S. 747, 756-757 (1982).) The Government may serve this legitimate interest, but to withstand constitutional scrutiny, `it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. [Citation.]' [Citation.] It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends. 5. 94-805 "In Butler v. Michigan, 352 U.S. 380 (1957), a unanimous Court reversed a conviction under a statute which made it an offense to make available to the general public materials found to have a potentially harmful influence on minors. The Court found the law to be insufficiently tailored since it denied adults their free speech rights by allowing them to read only what was acceptable for children. As Justice Frankfurter said in that case, `[s]urely this is to burn the house to roast the pig.' Id., at 383. In our judgment, this case, like Butler, presents us with `legislation not reasonably restricted to the evil with which it is said to deal.' Ibid." (Id., at p. 126-127.) Here, effective January 1, 1995, subdivision (c)(2) of section 313.1 will apply to vending machine distribution of material deemed harmful to minors. Adults will still be able to purchase adult publications from supervised vending machines or by use of tokens or an access card. On the other hand, fewer adult publications may be available for distribution through vending machines because the requirement to provide supervised or special access machines may be too burdensome for some publishers. Moreover, the inconvenience of having to first obtain tokens or an access card before using a vending machine could be substantial, depending upon the individual circumstances.6 Weighing all the possible factors, we believe that the language of subdivision (c)(2) of section 313.1 may be upheld as constituting "the least restrictive means to further the articulated interest." The purpose of the 1994 amendment is to effectively limit access by minors to vending machines which purvey harmful matter. The means chosen will impinge on adult access only as necessary to achieve that aim. It must be conceded that a remedy may appear to be draconian in some circumstances and yet on balance be the "least restrictive" to accomplish the government's legitimate goal. Rather than forbid the sale of harmful matter in vending machines, the state will allow supervision in order to provide some reasonable assurance that the purchaser is not a minor. Recognizing that actual supervision of such machines may be economically infeasible for some vendors, the state will permit the supervision requirement to be met by the vendor's issuance of tokens or an access card to adult purchasers. These provide reasonable and practical alternatives under which age-screening of would-be purchasers may be applied to vending machine sales. The 1994 amendment is designed to serve a compelling state interest without unnecessarily interfering with First Amendment freedoms.7 We conclude that the provisions of section 313.1 that will be effective January 1, 1995, concerning the sale of harmful matter in vending machines located on public property are constitutional. 6 A notice affixed to the vending machine could inform would-be adult purchasers as to where the necessary tokens or access card may be obtained. 7 We view the token or card alternatives to supervised vending machines as being sufficient to protect the First Amendment freedoms of both sellers and buyers of adult material. (See Topanga Press, Inc. v. City of Los Angeles (9th Cir. 1993) 989 F.2d 1524, 1528.) 6. 94-805 * * * * * 7. 94-805

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127792/

,~, ~ ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 6, 2013 Kyle L. Janek, M.D. Opinion No. GA-1004 Executive Commissioner Texas Health and Human Services Re: Whether the Health and Human Services Commission Commission is authorized to pay or, alternatively, Post Office Box 13247 an employee is required to pay interest on the Austin, Texas 78711 amount paid to the Employees Retirement System to restore a reinstated employee' s service credit when the employee has been reinstated as part of a grievance procedure (RQ-1 098-GA) Dear Dr. Janek: You ask whether the Health and Human Services Commission ("HHSC") is authorized to pay or, alternatively, an employee is required to pay, interest on the amount paid to the Employees Retirement System ("ERS") to restore an employee's service credit when the employee has been reinstated as part of a grievance procedure. 1 You state that an employee who had been discharged by HHSC recently filed a grievance claiming that the agency had wrongfully discharged the employee. HHSC Brief at 1. Following a hearing, an administrative law judge employed by HHSC ordered "that the employee's job be restored with back pay and full benefits." !d. Under such circumstances, you explain, HHSC attempts to establish the reinstated employee's service credit in the employee's ERS retirement account. !d. & n.2 . To do so, HHSC pays the employer's contribution and tenders the employee's contribution to ERS in the same amounts that would have been paid had the employee not been wrongfully terminated. 1 Letter & Brief from Kyle L. Janek, M.D., Exec. Comm'r, Health & Human Servs. Comm'n, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 7, 2012), http://www.texasattomeygeneral.gov/opin ("Request Letter" & "HHSC Brief'). You state: "HHS agencies reinstated an average of 25 employees each of the last two fiscal years. Employees were off the respective agencies' payrolls an average of six months. The ERS policy would require an average monthly interest payment of approximately $27.00 per reinstated employee." HHSC Brief at 2. The figures you provide indicate that compliance with the ERS policy would require payment of approximately $4,050 per year for the last two years. We note that HHSC retirement contributions in the most recent General Appropriations Act are estimated at $112,451,674 for fiscal year 2012 and $120,710,933 for 2013. General Appropriations Act, 82d Leg., R.S., ch. 1355, 2011 Tex. Gen. Laws 4025,4232- 33. Kyle L. Janek, M.D. - Page 2 (GA-1004) You state that you were informed by ERS, however, that it "requires payment of interest on the amount of money paid to restore service credit to a reinstated employee's ERS retirement account" under section 813.202 of the Government Code. !d. at 1. Section 813.202 provides for establishing membership service credit that has not been previously established. TEX. Gov'T CoDE ANN. § 813.202 (West 2012). ERS asserts that section 813.202 governs "reinstatement service credit," which is ERS's terminology for service credit awarded retroactively to wrongfully terminated employees once they have been reinstated. 2 ERS contends that section 813.202 requires the payment of the employer's and employee's contributions for the period between the date of the employee's termination and the date of reinstatement, plus interest on those contributions, before ERS may award reinstatement service credit, i.e., credit that had not been previously established. ERS Brief at 8-9. You note that chapter 813 expressly provides for interest on retirement system contributions to be paid in certain circumstances. HHSC Brief at 5-6 (citing TEX. Gov'T CODE ANN. §§ 813.102 (restoring canceled service), 813.202(b) (establishing service credit in a lump sum calculated under section 813.505), 813.302 (military service credit) (West 2012). You further note that no statutory provision expressly addresses whether state agencies must pay interest when establishing an employee's service credit that has not been previously established due to wrongful termination. HHSC Brief at 6. It is your position that "a state agency has no authority to pay interest nor can a reinstated state agency employee be required to pay interest in this situation." !d. at 2. You base that position on your conclusion that "ERS does not have authority to compel the payment of interest." !d. Thus, although you phrase your question in terms ofHHSC's authority, the issue at the heart of your inquiry is whether ERS is authorized to require the payment of interest before it awards service credit to a wrongfully terminated employee. ERS is responsible for administering the ERS trust fund established under article XVI, section 67 of the Texas Constitution. TEX. CONST. art. XVI, § 67(b)(2). "Financing of benefits [for the constitutional retirement system] must be based on sound actuarial principles" and the "assets of a system are held in trust for the benefit of members and may not be diverted." !d. § 67(a)(l). ERS has a duty to construe and . administer the statutes governing the retirement system's benefit plan so that the plan "will be considered a qualified plan under Section 401(a) of the Internal Revenue Code of 1986 (26 U.S.C. Section 401)." TEX. Gov'T CODE ANN. § 815.507(a) (West 2012). With respect to service credit not previously established, "any member may establish service credit in the retirement system for membership service not previously established." !d. § 813.202(a). When an employee wishes to establish such service credit, ERS is expressly required to "determine in each case the amount of money to be deposited by a member claiming 2 See Brief from Tim N. Sims, Acting Gen. Counsel, Emp. Ret. Sys. of Tex. at 2 & n.2 (Dec. 17, 20 12) (on file with Op. Comm.) ("ERS Brief'). Kyle L. Janek, M. D. - Page 3 (GA-1004) credit ... not previously established. The system may not provide benefits based on the claimed service until the determined amount has been fully paid." !d. § 813.1 01. In determining the amount that must be paid to establish service credit for a wrongfully terminated employee, ERS construes sections 813.1 04-.202 of the Government Code as requiring the payment of interest before it can credit an employee for prior service. Although no statutory provision specifically addresses the wrongful termination context, ERS concludes that the obligation to collect interest applies in all situations in which previously unestablished service credit is sought. Indeed, every statutory provision addressing the establishment of previously unestablished employee service credit includes a requirement to pay interest or a comparable time-based payment to ERS. ERS argues that the purpose of the requirement is to compensate the plan for the time value of the delayed employer and employee contributions. ERS Brief at 8-9. Further, as the retirement system fund's trustee and fiduciary, ERS argues it must charge interest so as to (1) avoid unconstitutionally diverting trust funds; (2) adhere to the exclusive-benefit rule under Texas and federal law; and (3) not violate the federal prohibited- transaction rule which could risk the plan's tax-exempt status. !d. at 4-7. When a state agency is charged with administering or enforcing a statute, Texas courts generally uphold that agency's interpretation of the statute, "so long as the construction is reasonable and does not contradict the plain language ofthe statute." Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993). In this case, ERS construes the Government Code to require that interest be paid before the agency can establish a retirement system service credit for an employee. ERS's construction of the statute comports with the Government Code's consistent recognition that interest or some other form of compensation must be paid before previously unestablished service credit may be recognized by ERS. Moreover, ERS's construction is a reasonable application of its statutory duty to "determine in each case the amount of money to be deposited by a member claiming credit ... not previously established." TEX. Gov'T CODE ANN.§ 813.101 (West 2012). Finally, ERS's construction of the statute does not conflict with any other statutory provisions. Thus, a court would likely conclude ERS has interpreted the statutes it is responsible for implementing within the bounds of its authority and in a manner that is neither unreasonable nor contrary to any statute. Accordingly, a court would also likely determine that ERS is authorized to require the payment of interest before service credit is established for an HHSC employee who has been reinstated after wrongful termination. With respect to whether HHSC is authorized to make such an interest payment, an administrative agency such as HHSC possesses only those powers conferred by the Legislature. Pub. Uti!. Comm 'n of Tex. v. City Pub. Serv. Bd., 53 S. W .3d 310, 316 (Tex. 2001 ). However, when the Legislature confers a power upon an agency, it also "impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties." !d. Moreover, as with ERS, HHSC's construction of its authorizing statutes is entitled to serious consideration, and will generally be upheld by the courts unless it is unreasonable or contrary to Kyle L. Janek, M. D. - Page 4 (GA-1004) statute. See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d at 823. Accordingly, it is for HHSC to determine, in the first instance, the manner in which it will pay interest to ERS to establish service credit for an employee who is reinstated after wrongful termination. 3 3 While it is HHSC's prerogative to examine and construe in the first instance the statutes it administers or is charged with implementing, we note that section 813.202(c) provides for the payment of the state's contribution and interest "from the fund or account from which the member receives compensation at the time the service is established." TEX. GOV'T CODE ANN. § 813.202(c) (West 2012). Kyle L. Janek, M. D. - Page 5 (GA-1004) SUMMARY A court would likely determine that ERS is authorized to require the payment of interest to establish service credit of an employee who has been reinstated after wrongful termination. It is for the Health and Human Services Commission to determine, in the first instance, the manner in which it will pay interest to the Employees Retirement System to establish service credit for an employee who is reinstated after wrongful termination. DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee William A. Hill Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4173188/

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 987 September Term, 2016 DANIEL NICHOLAS SMITH . v. STATE OF MARYLAND Eyler, Deborah S., Wright, Zarnoch, Robert A., (Senior Judge, Specially Assigned), JJ. Opinion by Wright, J. Filed: April 28, 2017 This appeal arises out of the criminal charges, jury trial, and guilty verdict that resulted from events which took place on August 13, 2015. Appellant, Daniel Smith, appeared before District Court Commissioner Marie Ann Caron in Washington County following Smith’s arrest on a warrant. Caron imposed money bail as a condition of Smith’s release. Smith became angry and shouted at Caron. As a result, Smith was charged with threatening a State or local official. On June 27, 2016, a jury trial was held in the Circuit Court for Washington County. Smith was convicted by the jury and sentenced to three years’ incarceration, all suspended, with nine months to be served in home detention, followed by a period of probation. Smith timely appealed, asking: I. Did the trial court commit plain error in failing to require the jury to find that the Appellant intended to threaten the complainant? II. Did the trial court err in finding sufficient evidence to convict the Appellant for threatening a State or local official in the manner charged in the State’s indictment? III. Did the trial court err in admitting testimony that the Appellant spat in the direction of the complainant? FACTS On August 13, 2015, Caron met with Smith following his arrest (the “Initial Appearance”). Caron testified that after she set money bail, Smith became furious. Caron testified that Smith “exploded and started cursing, yelling profanities. He said, ‘Fuck you bitch.’” Caron testified that Smith also shouted, “I’m going to find you,” and “You better find another job.” Caron further testified that Smith put his finger up, made 1 eye contact with her, and said, “I’m going to find you” while thrusting his finger into the glass. The guards then came to take him away. Deputy John Hinman of the Washington County Detention Center testified that, as Smith started to leave the room, “he turned back around and spit towards the Commissioner.” In a pretrial motion in limine, defense counsel moved to exclude any mention of why Smith had been arrested, citing Maryland Rule § 5-404(b), which generally prohibits admission of evidence of the defendant’s prior bad acts, outside of the crime charged. The prosecutor and defense counsel agreed that there would be no mention of the arrest warrant or Smith’s criminal history. Rather, they agreed to stipulate to the jury that Smith had been at the Initial Appearance to be given information about his rights, and that the case for which he was coming in was subsequently dismissed. Defense counsel also moved to exclude any testimony that Smith spat in the direction of Caron at the conclusion of the meeting. The spitting occurred out of Caron’s view. The circuit court denied the motion, finding that the testimony about the spitting was admissible to provide context to Smith’s words. Defense counsel objected when Deputy Hinman testified that Smith spat in the direction of Caron. Before the circuit court instructed the jury, defense counsel renewed a motion for judgment of acquittal. Defense counsel noted that the charging document in this case narrowed the charge by alleging that Smith threatened to create bodily injury to a State official, while omitting mention of other modes of threatening. That motion was denied. 2 Additional facts will be provided as they become relevant to our discussion, below. DISCUSSION I. Intent to Threaten Smith avers that the circuit court committed plain error, which requires reversal, by failing to require the jury to find that Smith intended to threaten Caron. Smith relies on Elonis v. United States, 135 S. Ct. 2001, 2012 (2015), where the Supreme Court held that 18 U.S.C § 875(c), the federal threats statute, did not apply to negligent conduct. According to the Supreme Court, the pattern jury instruction requiring the government to prove only that a reasonable person would regard the communication as a threat was erroneous and, thus, it reversed the conviction. Id. Smith asserts that the jury instruction in Elonis is “substantially similar to the instruction propounded in the instance case” and, therefore, employs a negligence standard of intent. The State responds by distinguishing the law under which Smith was convicted, Md. Code (2002, 2012 Repl. Vol.), § 3-708(b) of the Criminal Law Article (“CL”), which includes an intent element, from the federal threats statute, which did not include an intent element. The State also avers that the jury instructions adequately addressed the intent requirement. Smith recognizes that this issue was unpreserved for appeal because defense counsel did not object at the time of the jury instruction. However, Smith asks that we exercise our discretion to recognize plain error under Maryland Rules 4-325(e) and 8- 131. “Plain error is ‘error which vitally affects a defendant’s right to a fair trial.’” 3 Richmond v. State, 330 Md. 223, 236 (1993) (quoting State v. Daughton, 321 Md. 206, 211 (1990)). It is error that is “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” Id. (quoting State v. Hutchinson, 287 Md. 198, 203 (1980)). The factors to be considered by an appellate court in deciding whether to review jury instructions for plain error include the opportunity to use the unpreserved issue to illuminate an area of the law, the egregiousness of the error, the likely impact of the alleged error on the defendant, and the degree of lawyerly diligence or dereliction. See, Austin v. State, 90 Md. App. 254, 268-72 (1992). In Austin, we stated: On rarer occasions, we might even be influenced by the opportunity that the notice of “plain error” might afford to illuminate a murky recess of the law. The interpreting and molding of the law is as weighty a consideration in appellate councils as is the correction of error in individual cases. Id. at 271. Smith asks that we exercise our discretion to review for plain error here. He argues that each of the factors weigh strongly in his favor, most notably that this is an issue of first impression since this is the first time the question has been raised since Elonis. He also asserts that it would afford this Court an opportunity to address the question of if a jury must be instructed to determine whether the defendant intended to threaten as an element of the crime. For these reasons, we accept Smith’s invitation to review for plain error. 4 We conclude that intent to threaten is indeed an element of the crime which must be included in jury instructions, but hold that the jury was adequately instructed on this element in the present case. In Elonis, the petitioner was charged under 18 U.S.C. § 8-75(c) 1, and the jury instructions were as follows: A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual. 135 S. Ct. 2007 (internal citations omitted). The Court held that requiring the prosecution to prove only that a “reasonable person” would regard the communication as a threat meant that the conduct was determined by a negligence standard. Id. at 2011. The “reasonable person” standard “is inconsistent with the conventional requirement for criminal conduct – awareness of some wrongdoing.” Id. (internal quotation marks and citations omitted). The Court held that the prosecution must prove the defendant’s subjective intent to threaten. Id. In the present case, Smith was charged under CL § 3-708(b) which imposes an intent requirement that 18 U.S.C. § 8-75(c) lacks. CL § 3-708(b) provides that, “A person may not knowingly and willfully make a threat to take the life of, kidnap, or cause 1 18 U.S.C. § 8-75(c) reads: Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. 5 physical injury to a State official, a local official, a Deputy State’s Attorney, an Assistant State’s Attorney, or an Assistant Public Defender.” Smith correctly states in his brief that the jury instruction was as follows: A statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement would understand it as a serious expression of an intent to physically injure a State Official. In deciding whether the Defendant made a threat you may consider among other circumstances the language the Defendant used and whether a reasonable person hearing or reading the words and knowing all of the circumstances would have considered the words to be a threat. Smith asks that we read this instruction, derived from the Maryland Criminal Pattern Jury Instruction 4:12.2, as substantially similar to the instruction in Elonis and, therefore, requiring reversal. Smith fails to recognize that this is merely an excerpt of the jury instruction. On appeal, “instructions are reviewed in their entirety to determine if reversal is required.” Fleming v. State, 373 Md. 426, 433 (2003). Additional relevant jury instructions were as follows: Intent is a state of mind and ordinarily cannot be proven directly because there is no way of looking into a person’s mind. Therefore, a Defendant’s intent may be shown by surrounding circumstances. In determining the Defendant’s intent you may consider the Defendant’s acts and statements as well as the surrounding circumstances. Further you may but are not required to infer that a person ordinarily intends the nature and probable consequences of his acts or omissions. *** . . . knowingly, knowing is generally defined as having knowledge. Mr. Smith acted knowingly if he realized what he was doing, was aware of the nature of his conduct and did not act through mistake, accident, carelessness or other innocent reason. The State has the burden of proving 6 knowledge beyond a reasonable doubt. Knowledge can be established from all the surrounding facts and circumstances. You may find Mr. Smith had knowledge if he acted with an unlawful purpose and deliberately ignored the obvious. *** . . . willfully means an act that is done knowingly and with deliberate intention. An act that is done merely because of mistake, accident, carelessness or other innocent reason is not done willfully. The Defendant is charged with threatening a State Official. In order to convict the Defendant the State must prove, one, that the Defendant communicated a threat to another. Two, that the threat was to physically injure a State Official and, three, that the Defendant made the threat knowingly and willfully. *** A threat is knowingly or consciously made if the person writing or speaking comprehends the meaning of the words used.[2] Putting aside the differences in the statutes, namely that CL § 3-708(b) includes an intent requirement where 18 U.S.C. § 8-75(c) did not, and assuming arguendo, that the statutes are substantially similar 3 and that Elonis is therefore controlling, Smith’s argument that reversal is required still fails. 2 This sentence was added as an additional instruction as requested by defense counsel. 3 In Abbott v. State, we explained CL § 3-708 in a different context, and explained that the predecessor to the current statute “was patterned on a substantially similar provision, U.S.C. § 871(a), which prohibits threats to take the life of or inflict bodily harm upon the President of the United States.” 190 Md. App. 595, 617 (2010) (citation and footnote omitted). 7 In Elonis, the defense counsel requested a jury instruction that “the government must prove that he intended to communicate a true threat.” 135 S. Ct. at 2007 (citation omitted). The circuit court denied that request. Id. The Supreme Court stated that “[t]he jury was instructed that the Government need to prove only that a reasonable person would regard Elonis’s communications as threats, and that was error.[4] Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Id. at 2012 (emphasis added). The Court also stated: [t]he presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. . . . communicating something is not what makes the conduct “wrongful.” Here the crucial element separating legal innocence from wrongful conduct is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat. Id. at 2011 (internal quotations and citations omitted). Here, unlike in Elonis, the jury was instructed that the State must prove that Smith made a threat “knowingly and willfully” and further that willfully means “with deliberate intention” and where the speaker comprehends the words. The reasonable person standard was not used to eliminate the mens rea requirement that is fundamental to find criminal wrongdoing. To rule otherwise would require this Court to ignore the requirement to review instructions in their entirety. Therefore, the jury instruction given in this case adequately meets the Elonis holding that negligence is not sufficient to support a conviction under the relevant threats statue. 4 In Elonis, the government too, dispensed with the intent requirement, arguing in closing that it did not matter what Elonis thought at the time he made the threat. This was contrary to the argument made by the State in its closing. 8 II. Sufficiency of the Evidence Next, Smith avers that there was insufficient evidence to convict him for threating a State official. In reviewing the merits of a claim relating to the sufficiency of evidence, the standard of review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted). In assessing the sufficiency of the evidence presented at trial, the limited question before us is not “whether the evidence should have or probably would have persuaded the majority of fact finders but only whether it possibly could have persuaded any rational fact finder.” Allen v. State, 158 Md. App. 194, 249 (2004) (citation omitted), aff’d, 387 Md. 389 (2005). The Court views not just the facts, but “all rational inferences that arise from the evidence,” in the light most favorable to the prevailing party. Abbott, 190 Md. App. at 616. Appellate review should not involve undertaking “a review of the record that would amount to a retrial of the case.” Winder v. State, 362 Md. 275, 325 (2001) (citation omitted). “[T]he general rule is that matters essential to the charge must be proved as alleged in the indictment.” Green v. State, 23 Md. App. 680, 685 (1974) (citation omitted). “[T]he evidence in a criminal trial must not vary from those allegations in the indictment which are essential and material to the offense charged.” Id. (citation omitted). Smith avers that “the State’s evidence presented at trial deviated from the essential elements the State charged in its indictment.” The statute prohibits threats to “take the 9 life of, kidnap, or cause physical injury[.]” CL § 3-708(b). Smith asserts that the State specified the distinct type of injury threatened, bodily harm, which therefore limited the scope or type of threat that the jury could convict him for, but that the State then failed to present any evidence that Smith threatened bodily injury. Smith avers that here, the variance between the elements alleged and the evidence presented was fatal to the conviction and requires reversal. To support this position, Smith looks to McDuffy v. State, 6 Md. App. 537, 538 (1969), where an indictment charged the defendant with forgery of an “American Oil Credit Card” but the evidence proved the forgery of a receipt for purchased merchandise. We reversed the forgery conviction on the grounds of insufficient evidence, stating “an individual cannot be convicted of forging one instrument when the proof shows that he forged an entirely different instrument.” Id. at 539. “When there is a material variance between the allegata and the probata, the judgment must be reversed.” Green, 23 Md. App. at 685 (citation omitted). Smith asserts that the same is true here – that he “cannot be convicted for threatening to cause bodily injury to a State official when the State’s evidence at trial does not show that there was a threat to cause bodily injury.” Smith misinterprets McDuffy, stating that the allegata was “bodily harm” but the probata were nonspecific words. McDuffy would apply if the State had charged Smith with threatening bodily injury (the allegata), but at trial, it attained a conviction by proving that he threatened kidnapping (the probata). That is not the case. Rather, what Smith is asserting is that the State failed to present adequate evidence that the words Smith communicated to Caron threatened bodily injury. Smith asserts that 10 even if the statement, “I’m going to find you,” was indeed a threat to do “some harm,” that “some harm” is not sufficient to constitute bodily harm beyond a reasonable doubt. Smith states that “egging the complainant’s house, slashing her tires, or lobbying in front of her office building to get her fired” are all types of “some harm” that are not criminalized by the statute. While Smith correctly identifies examples of harm that a jury could infer from the statement, he fails to recognize that his burden is to persuade that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt when considering the statements and circumstances. Jackson, 443 U.S. at 319. The State responds that the words and actions used by Smith suggested that he was going to harm Caron and the movements toward her, when viewed in context, sufficed for a jury to find a threat of bodily injury. See State v. Rusk, 289 Md. 230, 246 (1981) (“That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Indeed, conduct, rather than words, may convey the threat.”) (Citations omitted). Here, the State presented evidence that numerous components of Smith’s behavior coalesced to show that Smith threatened Caron with bodily harm, including that Smith threatened to “find” her, he shouted obscenities at her, he made “violent motions” with his body, and that he leaned as close to the glass barrier as he could and pointed at her menacingly. The State further avers that Smith’s action of spitting at Caron is particularly suggestive and notes that in a number of jurisdictions, spitting is sufficient to support a conviction for battery or assault because it shows intent to harm the target. See, 11 e.g., Ray v. U.S., 575 A.2d 1196, 1199 (D.C. 1990); Hobbs v. State, 251 P.3d 177, 180 (Nev. 2011); Gilbert v. Commonwealth, 608 S.E.2d 509, 511 (Va. Ct. App. 2005). The State concludes that these are all words and actions that Smith used to suggest that he was going to harm Caron. Viewing all rational inferences that arise from the evidence in the light most favorable to the prevailing party, we affirm that a reasonable jury could have found that Smith threatened Caron with bodily harm. Abbott, 190 Md. App. at 616. III. Evidence that Smith Spat at Caron Finally, Smith avers that the circuit court erred in admitting testimony that he spat in the direction of Caron. Defense counsel moved in limine to exclude evidence that Smith spat at Caron, asserting that it occurred outside of the Initial Appearance. Defense counsel contended that it should be excluded as irrelevant because it happened out of her sight and as unduly prejudicial because the jury could draw harmful inferences regarding Smith’s character and criminal propensity. The following exchange occurred regarding the admission of the spitting: THE COURT: Well, and to me that’s an uncharged act. I guess they - - DEFENSE COUNSEL: Right. He’s not charged with a Second Degree Assault here so I don’t - - THE COURT: Having said that I don’t know that it’s inadmissible. I mean, it’s part of the, his, part of his conduct as to his person and how is it not admissible. DEFENSE COUNSEL: Well, I think it simply paints a picture that is not necessary to the charge of actually making a threat to a State official in this 12 case. It’s outside of her presence. He’s not charged with an assault. If he’d been charged with an assault in this case we’d be having a different discussion but he’s not. He’s simply charged with an oral threat with a State official. There’s nothing in the language of Section 3709 that says a gesture or a motion can constitute a threat. It has to be an oral or written statement that’s a threat. Spitting is not an oral or written statement so I think it is outside of what is relevant to the charge of threatening a State official. THE STATE: Your Honor, often times when you have a statement that is not completely explicit like you do in this case you have to take the context. The context is important. If he were laughing and joking and said this we may not even be here. But the fact that he spit at the end of it after having several outbursts is part of the context of whether he meant it as a threat and whether the trier of fact can determine that it was a threat or not. THE COURT: I do think that it’s necessary information. For example, if instead of that if he, you know, were making a punching motion while it may not have been charged as an intent to frighten assault it certainly would be part of his demeanor and character during the time that these statements were made. DEFENSE COUNSEL: And if it had happened during the Initial Appearance again I think it’s something that we’d be having a difference discussion over but this happened outside the Initial Appearance. She doesn’t even see it happen. THE COURT: Right. But the statute - - The purpose of the statute is not to limit what the person sees or is exposed to. The purpose of the statute is to get to any, any threat made. I do think it’s a part of the relevant context. I think it’s probative as to what was meant by the statements that were made. And it’s not unfairly prejudicial. It’s not going to mislead the jury. It’s not going to confuse the jury. It’s simply part of the context of what was said or done. Defense counsel objected during the trial when a State’s witness testified about the spitting, properly preserving this question for review. Maryland Rule 5-403 provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair 13 prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Whether evidence is relevant under Maryland Rule 5-403 is reviewed for abuse of discretion. Brooks v. State, 439 Md. 698, 708-09 (2014). “Abuse of discretion” has been said to occur “‘where no reasonable person would take the view adopted by the [trial] court,’ or when the court acts ‘without reference to any guiding rules or principles.’” Nash v. State, 439 Md. 53, 67 (2014) (quoting North v. North, 102 Md. App. 1, 13 (1994)). A ruling reviewed for an abuse of discretion will not be reversed “simply because the appellate court would not have made the same ruling.” Norwood v. State, 222 Md. App. 620, 643 (2015) (citation omitted). Rather, a trial court’s “decision is an abuse of discretion when it is well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Id. (citation omitted). Maryland Rule 5-404(b) prohibits admission of a defendant’s “bad acts” at trial, subject to certain exceptions, reading in full: Evidence of other crimes, wrongs, or acts including delinquent acts as defined by [Md.] Code [1973, 2013 Repl. Vol.], Courts [& Judicial Proceedings] Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. Maryland Rule 5-404(b) prohibits other bad acts evidence to protect against the risk that a jury will assume that because a defendant committed other crimes, he is more likely to have committed the crime for which he is on trial. Smith v. State, 218 Md. App. 689, 709-10 (2014). The prohibition “reflects a fear that jurors will conclude from 14 evidence of other bad acts that the defendant is a ‘bad person’ and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even though the evidence is lacking.” Behrel v. State, 151 Md. App. 64, 124 (2003) (citations omitted). The Court of Appeals has established a three-part test for admission of other bad acts. Jackson v. State, 230 Md. App. 450, 458 (2016). The first step is to determine whether the evidence fits into one or more of the special relevancy exceptions, which include motive, intent, absence of mistake, a common scheme or plan, identity, opportunity, preparation, or knowledge. State v. Faulkner, 314 Md. 630, 634 (1989). The second step is to determine whether the accused’s involvement in the other crimes is established by clear and convincing evidence. Id. Finally, the court must carefully weigh the necessity for and the probative value of the “other crimes” evidence against any undue prejudice likely to result from admission. Id. at 635. Smith asserts that the circuit court engaged in only a “cursory analysis” of the evidence and failed to conduct the second prong of the three-part test. However, Smith fails to recognize that if an act is part of the alleged offense, the act does not constitute an “other” act to which the rule applies. See Dixon v. State, 133 Md. App. 325, 330 (2000), rev’d on other grounds, 364 Md. 209 (2001). In Odum v. State, 412 Md. 593 (2010), the Court of Appeals found no abuse of discretion in the trial court’s admittance of evidence of the defendant’s “other” conduct in a kidnapping prosecution. The Court held that the trial court properly allowed the jury to consider evidence of the robberies, carjacking, and murders that surrounded the kidnapping for which the defendant on trial, because these 15 acts took place “during the criminal episode.” Id. at 615. Thus, the prohibition against “other crimes” evidence does not apply to evidence of wrongs “that arise during the same transaction and are intrinsic to the charged crime[.]” Id. at 611. The Odum Court defined “intrinsic” in this context to mean, at a minimum: other crimes that are so connected or blended in point of time or circumstances with the crime or crimes charged that they form a single transaction, and the crime or crimes charged cannot be fully shown or explained without evidence of the other crimes. Id. Therefore, before turning to the merits of Smith’s assertion that the circuit court did not property apply the three-prong test, we must first determine whether the spitting occurred during “the criminal episode,” and we hold that it did. Here, Smith’s spitting at Caron was sufficiently connected with the orally communicated threats to form a “single transaction” as identified by the Odum Court. The entire interview lasted only approximately half an hour. No events intervened between the communications to Caron and the spitting. The oral communications and the spitting all occurred in the same geographic location. For these reasons, we agree that the spitting was sufficiently connected to the single episode so as to be offered for context to the act, not as an “other” act under Md. Rule 5-404(b). Moreover, the purpose of the rule would not be served by excluding this testimony. The purpose of the rule is to keep a jury from assuming the commission of one crime based on the commission of another crime or act. Here, Smith’s conduct is undisputed. Rather, it was the significance of the conduct that mattered. Therefore, the 16 spitting did not unfairly suggest that Smith committed the act, but rather, appropriately provided context for the act. Accordingly, the circuit court did not abuse its discretion in admitting the testimony, and we need not turn to the merits of the argument regarding the application of the Faulkner three-prong test. JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. 17

01-03-2023

05-31-2017

https://www.courtlistener.com/api/rest/v3/opinions/4124934/

KEN PAXTON ATTORNEY GENERAL OF TEXAS January 18, 2017 Mr. Rick Dollahan Opinion No. KP-0130 Gaines County Auditor Post Office Box 84 7 Re: Whether a county attorney who is Seminole, Texas 79360 appointed to serve as a special prosecutor may be paid additional compensation (RQ-0120-KP) Dear Mr. Dollahan: You ask whether a county attorney who is appointed by a district attorney to serve as a special prosecutor may be paid additional compensation. 1 You inform us that you received a letter from the District Attorney for the 106th Judicial District directing payment of $500 to the Gaines County Attorney for services rendered on July 1, 2016 as a "special prosecutor" representing the State in various Gaines County district court proceedings. Request Letter at 1. You further state that the district attorney, not the court, appointed the county attorney to serve as a special prosecutor. Id. You inform us that the county attorney believes that he is not entitled to the payment, but the district attorney disagrees. Id. at 2. Article 2.02 of the Code of Criminal Procedure sets forth duties of a county attorney: The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case i~ behalf of the State in the district court. TEX. CODE CRIM. PROC. art. 2.02. Article 2.02 imposes a duty on a county attorney to represent the State in criminal cases in district court, whether alone when the district attorney is absent, or in aid of the district attorney upon the district attorney's request. Id.; see also TEX. Gov'T CODE § 311.016(2) (stating the rule of statutory construction that the word "'shall' imposes a duty" unless context-necessarily requires otherwise). However, a district or county attorney may not "take from any person a fee, article of value, compensation, reward, or gift ... to prosecute a case that he is required by law to prosecute." TEX. Gov'T CODE§ 41.004. Further, article III, section 53 of the Constitution prohibits the payment of "any extra compensation, fee or allowance to a public 'See Letter from Mr. Rick Dollahan, Gaines Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at I (July 2I,2016), https://www. texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). Mr. Rick Dollahan - Page 2 (KP-0130) officer, agent, servant or contractor, after service has been rendered." TEX. CONST. art. III, § 53. Thus, because a county attorney has a duty under article 2.02 of the Code of Criminal Procedure to represent the State in the district court of the county, the county attorney may not receive additional compensation for doing so. You reference article 2.07 of the Code of Criminal Procedure. Request Letter at 2. Article 2.07 authorizes a court to appoint an attorney pro tern "[w]henever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office." TEX. CODE CRIM. PROC. art. 2.07(a). However, "ifthe appointed attorney is also an attorney for the state," the appointed attorney "is not entitled to additional compensation." Id. art. 2.07(b). Because a county attorney is an attorney for the State, a county attorney appointed under article 2.07(b) may not receive additional compensation for services as an attorney pro tern. Id. art. 2.07(b), (d); see also Tex. Att'y Gen. Op. No. JM-763 (1987) at 4 (determining that article 2.07 prevents a county attorney from receiving compensation as an appointed attorney for the State). You also state that the district attorney specified that the county attorney should be compensated as a "special prosecutor." Request Letter at 1. The terms "attorney pro tern" and "special prosecutor" are sometimes used interchangeably, but the positions are fundamentally different. Coleman v. State, 246 S.W.3d 76, 82 n.19 (Tex. Crim. App. 2008) (distinguishing an article 2.07 attorney pro tern from a special prosecutor). While article 2.07 of the Code of Criminal Procedure governs the appointment of an attorney pro tern, a special prosecutor participates in a particular case at the request of the prosecuting attorney. Id. A district attorney possesses the authority to employ and compensate assistant prosecuting attorneys, but we are not aware of any statute that would permit the district attorney to provide additional compensation to a county attorney for performing a duty required by article 2.02 of the Code of Criminal Procedure. See TEX. Gov'T CODE §§ 41.102, .106 (stating a district attorney's authority to employ and fix the compensation of assistant prosecuting attorneys). Accordingly, a county attorney is not entitled to receive extra compensation for representing the State in a criminal matter in the county's district court at the request of the district attorney. Mr. Rick Dollahan - Page 3 (KP-0130) SUMMARY A county attorney is not entitled to receive extra compensation for representing the State in a criminal matter in the county's district court at the request of the district attorney. Very truly yours, KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General 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/4142910/

Hon. T. M, Trimble Opinion No* O-3453 First Assistant Re: Method of signing vouchers State Superintendentof adopted by Poteet Independ- Public Instruction ent School District. Austin, Texas Dear Sir: In your letter of April 23, 1941, you advised us of the following facts: “The Board of Trustees of the Poteet Independ- ent School District were duly organized following the trustee electionsthe first Saturday in April according to the Public School Laws of Texas. “The minutes and order of the Board reveal the following proceedings: “‘The Board proceeded to reorganize for the following year. R. S, Guynes was elected president of the Board; J, H. Mangum was elected vice presi- dent; Joe V. Davidson was elected secretary;M. D. Stroble was elected financial secretary of the Board and was authorizedto make purchases,keep records of accounts, countersignvouchers drawn by the presi- dent upon order of the Board, and to perform any duties as directed by the Board.’ “R. S, Guynes is a member of the Board, Joe V, Davidson is a member of the Board, and M. D. Stroble is not a member of the Board. I’M, D. Stroble has performed such duties for the Board of Trustees as outlined in order of his election and employmentby the Board, Joe V. David- son who is a membar of the Board has performed such perhunctory duties as signing minutes of the proceed- ings of the Board, orders for election, teachers contracts,etc.” And you request our opinion in responce to these two questions:  . - i- - Hon. T. M. Trimble, page 2 (O-3453) "Does the above organizationcomply with the law?" "Is the fact that Joe V. Davidson signs per- functory papers and records as secretaryand M.D. Stroble signs vouchers when duly drawn by the president upon order of the Board of Trustees, a violation of the law?" The Poteet IndependentSchool District was created by Special Act of the Legislature in 1913. H.B. No. 523, Ch, 23, p. 80 Special Laws 33rd Legislature,Regular Session. By House k.11 No. 508, &h. 60, p.,223, Special Laws, 38th Leg- islature,Regular Session, Sec. 3 of the Act creating said district was amended so as to read as follows: "The management and control of the public free schools within said district is hereby vested in a board of trustees, which board shall be com- posed of seven persons to be elected in accordance with Chapter 18, Title 48 Revised Civil Statutes of Texas, which said boarb of trustees shall main- tain and control the public free schoolswithin said district to the exclusion of every other au- thority except in so far as the State Superintend- ent of Public Instructionand the State Board of Education may be vested by law with supervisory authority to instruct said board." Chapter 18, Title 48 Revised Civil Statutes of Texas, at the time of the enactment oh said House Bill 508 in 1923 embraced what is now Articles 2774 to 2783 Revised Civil &at- utes of 192 (but it will be noted not in&ding Articles 2774a, 2777a, 27772 and 2783a, Vernon's AnnotatedCivil Statutes). Article 2832, Revised Civil Statutes, authorizes the district to select its own depository, as it contains more than 150 scholastics. The quoted provision from House Bill 508, 38th Legis- lature is broad enough to sustain the action of the Board of Trustees in appointing as financial secretary one who is not a member of the Board. If Article 2779 is applicable,a point which we do not deem it necessary to decide it does not forbid such appointment. In our Opinion Ho. O-211& we held that the Board of Trustees of an independentschool district created un- der general laws is authorizedby Article 2779 to appoint was secretary a person who is not a member of the Board of Trustees. Hence we conclude that Mr. Stroble'snot being a trustee is not a material factor. Hon. 11,Me Trimble, page 3 (0-3453) Since the,Board of Trustees is the governing author- ity of the district disbursementsof the district'sfunds may be made only by the Board or under its direction or order. No statute undertakes to set out just how such authority must be manifest or just what procedure must be followed in making withdrawals or disbursementsof money from the depository.The Board must act as such and its action should be made to appear in the official minutes. The depository is entitled to be sat- isfied of Board action and authority before honoring a voucher and it goes without saying that it is best for all parties con- cerned that the depository should not release funds unless it be made to appear clearly that the Board of Trustees has author- ized the same. However there is nothing in our laws which for- bids the procedurewhich has been adopted end we:therefore an- swer your first question in the affirmativeand the second in the negative, Yours very truly ATTORNEY GENERAL OF T&AS By /s/ Glenn R. Lewis Glenn R. Lewis, Assistant APPROVEB MAY 7 1941 /s/ Grover SalII ers FIRST ASSISTANT ATTORNEY GENERAL APPROVED8OPINION COMMITTEE BY: BWB, CHAIRMAN GRL:db:wb

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142946/

OFFICE OF THE A’ITORNEY GENERAL OF TEXAS AUSTlN ,: ‘;‘. -. ‘. 3 l&o detf%wr la ‘. “‘. ;tntbl.rS~ke. ,, .: 1 ..  69 LUrtkeleeTS!kWa, P6aalOodo0tIexa8,make it a mledeauor fw ~2 not duly l%oenmed01 a phamaaist to6ngagalnswh Tile + Ye Ifnd no etatut whlah author- ius uyofitaortobd.ngaatioaagalnst apharmaaistto cd- leet him arumal Uoease See, but undes 8ootZon 5, supa, a gduuwaolSt vho kilr to pay his annual renwal fee of TV0 Dollws~boiweXarahii~st, theawbyaaase~to be alioenred pllamwist., '*$. Pous the fallwu ts obtain a l,Loenm issued by the Bbpwtqunt OS Publiq SaSety upad the iSfuuth datu ot this Ast to be b efisat until July 1, lq8, and tlwsame shall b4 Punbved b;rJQly 1st o? soofi swabdlng yewi* WO bdtO+o this SObtiOa PSquirb8 the S&&a SOWtPUbtiOn au Suetion k af tho  ‘+L Cut a lloonue bb issued to a& apdhaaar7 UndbP thu unlevm xwoatl4 Dmg hot nottiths~ it has aot mu8fvud a peat fsa5 tie Stat0 Board to th.lsquestion 18 to be iouad in the doti- tbA 1 OS hrtio1.e 725b, Paal code OS 2uxa8, vhuih rmdsr "~hpc&wwy~ wa&s a Uosarsdsih8mMA8tas d4sl.Audbythblavsofth.lbStata’ubd,vherefho aontost so requirus thu ovaw OS a btom w othw plaao ai buifsesc~v&u namotic &uga are oaapound- ,ad w dbpaued by a llwnsed sbmsW%st; btit aothing %lltht8h@trhellLbbhMt3'td asaoafwrlaseaa pwsoavhoisnotrq#stbWd~Uwasodaua~ ssobt any authwity, r?lght, or WxUege, that is nOO~PfittsdtO,hiab7the~larn,~thi8 . Seotian6o?th6iscimeaat8UtboZ'1Se8the 84bsndtis- po8&tiolroinsMdio8b7 apothwwios upea thu cwdftieas thwe in prwwlbudi Slaoe uudw tho definltloa above qwtod, “‘a~-- wary’ mbaas a uq4xubd vt,* lmbbl%wbthatthb~ aRat,oi~iU~~7~pat~8Susaila~6tOdiipwuS~. OOtiO8 to M k@bBW%'7, uuless he be duly llewsod by thu Sat4 Bawd of -Y* & & io n S’o ? the B(arootiomug A& b&ins with the vwdst @%xaoptas othwviss In this het apeaifi- $l~~dod,thZ8 Aat 8h&lInOt applytO the fOlbV- :* , c

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127802/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 93-1005 of : : May 13, 1994 DANIEL E. LUNGREN : Attorney General : : CLAYTON P. ROCHE : Deputy Attorney General : : ______________________________________________________________________________ THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY, Ventura County, has requested an opinion on the following question: May the card game 21 be played in California under conditions where each player is charged a fixed fee for a designated amount of chips and the playing time is limited to a specified number of hours? CONCLUSION The card game 21 may not be played in California under conditions where each player is charged a fixed fee for a designated amount of chips and the playing time is limited to a specified number of hours. ANALYSIS This opinion concerns the game called "Twenty One For Fun." The operator of the game provides a dealer, a blackjack table, and equipment (decks of cards, a "shoe" for holding the cards, and the chips) for the game. Each table accommodates seven players. For a $10 fee, a player may play 21 (also known as "blackjack"), receiving chips totaling $2,000 in "value." The chips come in $25, $100, and $500 denominations. A player may continue playing so long as he or she has chips, not exceeding four hours of playing time. The chips are not convertible into money or any type of tangible property. May this game be played in California? We conclude that it may not. Section 19 of article IV of the Constitution states: "(a) The Legislature has no power to authorize lotteries and shall prohibit the sale of lottery tickets in the State. 1. 93-1005 "(b) The Legislature may provide for the regulation of horse races and horse race meetings and wagering on the results. "(c) Notwithstanding subdivision (a), the Legislature by statute may authorize cities and counties to provide for bingo games, but only for charitable purposes. "(d) Notwithstanding subdivision (a), there is authorized the establishment of a California State Lottery. "(e) The Legislature has no power to authorize, and shall prohibit casinos of the type currently operating in Nevada and New Jersey." The Legislature has specifically implemented the constitutional prohibition against lotteries (Pen. Code, §§ 319-329),1 it has authorized bingo games for charitable purposes (§ 326.5), and related to the prohibition against "Nevada and New Jersey type" casinos, it has expressly banned various forms of gambling (§§ 330-336). The playing of the card game 21 is prohibited under the conditions and terms specified in section 330. (See In re Clark (1921) 54 Cal. App. 507, 508; United States v. Graham (9th Cir. 1976) 534 F.2d 1357, 1358-1359.) Section 330 states: "Every person who deals, plays, or carries on, opens, or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a- half, twenty-one, hokey-pokey, or any banking or percentage game played with cards, dice, or any device, for money, checks, credit, or other representative of value, and every person who plays or bets at or against any of those prohibited games, is guilty of a misdemeanor, and shall be punishable by a fine not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment." The key language of section 330 requiring our analysis is the phrase "for money, checks, credit, or other representative of value." This element must be proved to establish a violation of section 330. (People v. Carroll (1889) 80 Cal. 153, 155; Pittman v. Superior Court (1967) 256 Cal. App. 2d 795, 797; In re Clark, supra, 54 Cal.App. at 509; In re Lowrie (1919) 43 Cal. App. 564, 567.) If the players are playing for their own "amusement" without any stakes to be won or lost, section 330 is not violated. (See People v. Ah Own (1890) 85 Cal. 580, 581-583; People v. Carroll, supra, 80 Cal. at 155; People v. Sam Lung (1886) 70 Cal. 515, 516-517; Pittman v. Superior Court, supra, 256 Cal.App.2d at 796-797; In re Clark, supra, 54 Cal.App. at 509; In re Lowrie, supra, 43 Cal.App. at 567; 9 Ops.Cal.Atty.Gen. 108, 109 (1947).) Do the chips used by the players in the game "Twenty One For Fun" constitute "other representative of value"? If the chips were convertible into money, they would clearly meet the requisite test. (People v. Carroll, supra, 80 Cal. at 155.) The same would be true if the chips were convertible into merchandise. In In re Lowrie, supra, 43 Cal. App. 564, the court concluded with respect to chips that were redeemable in merchandise: 1 All references hereafter to the Penal Code are by section number only. 2. 93-1005 ". . . they were representative of the value of the merchandise so received in exchange therefor. Had the chips been redeemable in money of the realm, . . . there would be no question as to the acts alleged constituting an offense. But the merchandise given in exchange for the chips must be deemed of value and the value of the goods which, in accordance with the scheme, were given in exchange for the chips won was represented by the chips . . . ." (Id., at p. 567.) In In re Clark, supra, 54 Cal. App. 507, the court stated: "The purpose of the law is to prohibit games of the kind mentioned and described at which money or property or the representative thereof, is lost or won." (Id., at p. 509.) Here the chips cannot be converted into money or any type of tangible property. However, they do allow each player to complete the four hours of possible playing time if they are won. On the other hand, if they are lost, the playing time is terminated. Of course, at the end of the four hours, the chips have no value. In these circumstances, do the chips constitute "representative of value"? In the somewhat related context of obtaining additional playing time by scoring a requisite number of points on a pinball machine, the courts have characterized the additional games as "property" for purposes of the lottery statute, section 319. In People v. Settles (1938) 29 Cal. App. Supp. 2d 781, 786-787, the court concluded: ". . . The duty of the operators of this game to permit the winner to play further games free is an obligation arising from contract, and the right of the player in the matter is personal property (Civ. Code, sec. 663), and a thing in action. It is, therefore, property within the meaning of section 319, Penal Code. [Citations.]" In Gayer v. Whelan (1943) 59 Cal. App. 2d 255, 257, the court stated: "It is conceded that where the machine returns tokens . . . that may be . . . used to replay the device, as a reward for the player making a high score . . . the machine is a gambling device coming within the provisions of the majority of the statutes. . . ."2 On the other hand, in People v. Carroll, supra, 80 Cal. 153, interpreting section 330, the court declared: "The information charges no offense under this section of the code, or any other. To constitute it an offense to conduct the game, it must be `played for money, checks, credit, or any other representative of value.' The information does not charge that the game was played for money, but that defendant conducted it for money. It may be that those who were engaged in the game were playing for amusement, and paid the defendant a fixed sum, in no way dependent upon the result of the game, for conducting it. This would be within the allegations of the information, but it would not be a public offense or within the statute." (Id., at p. 155.) Or, as stated in In re Clark, 54 Cal. App. 507, supra: 2 Since 1950 California has expressly prohibited pinball and other slot machines that reward a high score with an additional game. (§§ 330b, 330.1; Merandette v. City and County of San Francisco (1979) 88 Cal. App. 3d 105, 113-114.) 3. 93-1005 ". . . It cannot be assumed that it is impossible that any of the games specifically mentioned may not be played for amusement only and without the incident of money or property being wagered or bet thereat." (Id., at p. 509.) We believe that the holdings of the above cited cases may be reconciled by focusing on what the players received in exchange for their fees in each of the games. In the situation presented here, the players will receive at most 80 chips, allowing them to participate in the games while the chips remain. The chips are initially worth $10 and represent the value of continued playing time. Only at the end of the four hours do they lose their value of continued playing time. Since the playing time has value, the chips won or lost in each game would represent that value; it is of monetary benefit to win each game. We believe that this situation may be likened to that in Settles and Whelan described above. If, instead, the players here were to receive four hours of playing time for their $10 fees, no monetary benefit would result by winning each game. The players would continue playing regardless of winning or losing. The chips would not represent anything of value during the four hour period. Although it cannot be definitely determined, it appears that this type of situation may be likened to that considered in Carroll and Clark described above. Accordingly, we believe that the precise circumstances here, taken as a whole, demonstrate that "Twenty One For Fun" is not played for amusement only, but rather for chips that are representative of the value of continued playing time within the meaning of section 330. In answer to the question presented, therefore, we conclude that the card game 21 may not be played in California under conditions where each player is charged a fixed fee for a designated amount of chips and the playing time is limited to a specified number of hours. ***** 4. 93-1005

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4128503/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT October 2, 2007 The Honorable Charlie F. Howard Opinion No. GA-0574 Chair, Committee on Local and Consent Calendars Re: School district responsibilities under section Texas House of Representatives 25.0951(a) of the Texas Education Code Post Office Box 2910 (RQ-0584-GA) Austin, Texas 78768-2910 Dear Representative Howard: You ask two questions about a school district's responsibility to file a complaint for failure to attend school under section 25.0951(a) of the Texas Education Code. 1 See TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sessa Law Serve 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). A child between the ages of six and eighteen generally must attend school "each school day for the entire period the program ofinstruction is provided." TEX. EDUC. CODE ANN. § 25.085(a)-(b) (Vernon 2006). A child who is required to attend school commits an offense if, without a legitimate excuse, he or she "fails to attend school on 10 or more days or parts of days within a six-month period in the same school year or on three or more days or parts of days within a four-week period." Id. § 25.094(a); see also id. § 25.087 (establishing guidelines for excused absences). Under section 25.0951, a school district must initiate legal action against a child or the parent of a child who fails to comply with the statutory school-attendance requirements. See ida § 25.0951. In the following excerpt from section 25.0951, relevant legislative amendments to section 25.0951 adopted during the 2007 legislative session are indicated: (a) Ifa student fails to attend school without excuse on 10 or more days or parts of days within a six-month period in the same school year, a school district shall within 10 [seven] school days of the student's 10th [last] absence: ISee Letter from Honorable Charlie F. Howard, Chair, Committee on Local and Consent Calendars, Texas House of Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Apr. 19,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]. The Honorable Charlie F. Howard' - Page 2 (GA-0574) (1) file a complaint against the student or the student's parent or both in a county, justice, or municipal court for an offense under Section 25.093 ["Parent Contributing to Nonattendance"] ,or 25.094 ["Failure to Attend School"], as appropriate, or refer the student to a juvenile court in a county with a population of less than 100,000 for conduct that violates Section 25.094; or (2) refer the student to a juvenile court for conduct indicating a need for supervision . . . . (d) A court shall dismiss a complaint or referral made by a school district under this section that is not made in compliance with this section. Id. § 25.0951(a), (d), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sess. Law Servo 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sess. Law Servo 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); see also id. § 25.0951(c) (defining "parent"). In 2006 this office interpreted section 25.0951 as it was written at that time. See generally Tex. Att'y Gen. Ope No. GA-0417 (2006). In that opinion, GA-0417, this office determined that section 25.0951(a) requires a school district to file a complaint or referral2 within seven days of the student's tenth unexcused absence. See id at 5. Failure to do so, the opinion concluded, "inevitably leads to the complaint's or referral's dismissal." Id. Moreover, if a complaint is dismissed as untimely, subsection (a) prohibits a school district from refiling the exact same complaint based upon the same ten unexcused absences-but "[i]fthe student has failed to attend school without excuse since the original complaint was filed," the school district must file a new complaint "that lists the latest absence as well as some or all of the absences listed in the original complaint" within seven school days of the latest absence. Id. at 6. Thus, each subsequent absence that occurs within a six- month period of the same school year renews the seven-day period within which the school district may file a timely complaint. See id. You now ask whether "a school district's failure to file a truancy complaint ... under § 25.095[I](a) ... within the seven[-]day period after the tenth unexcused absence affect[s] in any way its ability to file a complaint . . . against the same student based on a subsequent absence, assuming that the most recent ten absences are within a sixth-month period." Request Letter, supra note 1, at 1. Nothing in the statute forbids a school district from filing a new complaint listing some of the absences listed in the dismissed complaint in addition to a new, subsequent tenth unexcused 2Throughout the remainder of this opinion, we will use the term "complaint" to encompass both a complaint filed in a county, justice, or municipal court under section 25.0951(a)(1) and a referral to juvenile court made under section 25.095 1(a)(2). The Honorable Charlie F. Howard - Page 3 (GA-0574) absence, so long as all the absences have occurred within a six-month period ofthe same school year. See Tex. Att'y Gen. Ope No. GA-0417 (2006) at 6; see also TEX. EDUC. CODE ANN. § 25.0951(a) (Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sessa LawServ. 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act ofMay 23, 2007, 80th Leg., R.S., ch. 984, § 1, 2007 Tex. Sessa Law Serve 3463, 3463 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). A recent legislative amendment to section 25.0951(a) supersedes a portion of GA-0417's conclusion. Under the amendment, a school district must file the complaint within ten, not seven, school days.3 See Act of May 23,2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 3463,3463 (Vernon) (to becodifiedatTEx.EDUC.CODEANN. § 25.0951(a)). A second amendment, changing the word "last" to "10th," codifies that portion of GA-0417 concluding that a school district must file a complaint after the student's tenth absence. See Act of May 25, 2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sessa Law Serve 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); House Comma on Juvenile Justice & Family Issues, Bill Analysis, Tex. Comma Substitute H.B. 2884, 80th Leg., R.S., § 24 (2007). As the second amendment makes clear, a student's tenth unexcused absence triggers the school district's responsibility to file a complaint. See Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31,2007 Tex. Sessa Law Serve 2277,2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25 .0951 (a)). See generally TEX. GOV'T CODE ANN. § 311.025(b) (Vernon 2005) (directing that multiple amendments to the same statute enacted at the same legislative session should be harmonized if possible to effectuate each). Otherwise, GA-0417's construction of section 25.0951(a) is unaffected. You also ask whether a school district that fails to file a timely complaint under section 25.0951(a) suffers any penalty under the Education Code other than the dismissal of the complaint under section 25.0951(d). See Request Letter, supra note 1, at 1; see TEX. EDUC. CODE ANN. § 25.0951(a), (d) (Vernon 2006), amended by Act of May 25,2007, 80th Leg., R.S., ch. 908, § 31, 2007 Tex. Sessa Law Servo 2277, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)); Act of May 23,2007, 80th Leg., R.S., ch. 984, § 1,2007 Tex. Sessa Law Serve 2271, 2291 (Vernon) (to be codified at TEX. EDUC. CODE ANN. § 25.0951(a)). We find no other penalties in the Education Code. 3The bill amending section 25.0951(a) to increase the filing period from seven to ten school days became effective immediately. See Act of May 23, 2007, 80th Leg., R.S., ch. 984, § 2 [Tex. S.B.1161]; see also H.J. of Tex., 80th Leg., R.~. 5268-69 (2007) (recording a vote of 144-0 in favor of passage on the bill's third reading); S.J. of Tex., 80th Leg., R.S. 986-87 (2007) (recording a vote of30-0 in favor of passage on the bill's third reading). The Honorable Charlie F. Howard - Page 4 (GA-0574) SUMMARY Under section 25.0951(a) of the Education Code, a school district must file a complaint or referral against a student who has accumulated ten or more unexcused absences within a six-month period in the same school year within ten school days ofthe student's tenth absence. Failure to file within the requisite time will lead to dismissal ofthe complaint or referral, but the school district may file a new complaint, listing some of the same absences as well as a subsequent tenth unexcused absence, within ten school days of the tenth absence listed in the complaint or referral. To the extent Attorney General Opinion GA-0417 construes section 25.0951(a) to require filing a complaint or referral within seven school days, it has been superseded by amendments to the statute. Other than requiring a court to dismiss the complaint or referral, the Education Code imposes no penalties on a school district that fails to file a complaint or referral within ten school days of the student's tenth unexcused absence. KENT C. SULLIVAN First Assistant Attorney General 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/4118535/

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs September 20, 2016 at Knoxville BRUCE D. MENDENHALL v. STATE OF TENNESSEE Appeal from the Criminal Court for Davidson County No. 2007-D-2738 Steve R. Dozier, Judge No. M2015-02091-CCA-R3-PC – January 25, 2017 The petitioner, Bruce D. Mendenhall, was convicted in 2007 of first degree premeditated murder and sentenced to life imprisonment. His conviction was affirmed on direct appeal, and his application for permission to appeal was denied. Subsequently, he filed a petition for habeas corpus relief, which the court treated as a petition for post-conviction relief, alleging that trial counsel had been ineffective. Following an evidentiary hearing, the post-conviction court concluded that the petitioner‟s claims were without merit. The record on appeal supports this determination. Accordingly, the order of the post- conviction court denying relief is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J., and ROBERT H. MONTGOMERY, JR., J., joined. Nathan D. Cate, Nashville, Tennessee, for the appellant, Bruce D. Mendenhall. Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Glenn R. Funk, District Attorney General; and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS The facts upon which the petitioner‟s conviction was based are set out in the opinion of this court on the direct appeal: [The petitioner‟s] trial began on May 10, 2010. The victim‟s sister Roxanna Wayman testified that Ms. Hulbert [the victim] had a history of drug and alcohol addiction, and Ms. Wayman was aware that Ms. Hubert [sic] was engaging in prostitution at the time of her death. Nicholas Turner, the head of security at the Travel Centers of America truck stop in Nashville, testified that he discovered the victim‟s body in the early morning hours on June 26, 2007. Mr. Turner found the body at approximately 12:50 a.m. He checked to see if the victim was breathing and “didn‟t see anything so [he] called 911.” He estimated that the first police officer arrived approximately thirty seconds to one minute after he made the emergency call. On cross-examination, Mr. Turner testified that he was training another security officer that night. The officer, Robert Nelson, left at approximately 12:15 a.m. Mr. Turner “had him basically tail [him] on [his] duties. . . .” While walking with Mr. Nelson around the truck stop, Mr. Turner showed Mr. Nelson a hole in a fence near where the body was found. Mr. Turner testified that prostitutes and drug dealers would enter the property through the hole in the fence. Mr. Turner testified that he had last checked the area where the victim‟s body was found at approximately 12:15 or 12:20 a.m., and he had not seen the body there. Sgt. Robert Durbin was patrolling the area of downtown Nashville on June 26, 2007. At approximately 1:00 a.m., he was dispatched to the Truck Stops of America in response to a dead body. When he arrived, he met with private security officer Nicholas Turner, who took Sgt. Durbin to the area where the body was discovered behind some parked trailers. Sgt. Durbin testified that “it was plainly apparent to [him] that [Ms. Hulbert] was deceased.” She was naked and had “blood all over her head.” She was lying on her back and her feet were positioned with the soles together and her knees spread apart. Her left hand was stretched out beside her with her wrist turned up. She was wearing an ID bracelet, and the name on it was clearly visible. Sgt. Stephen Beck of the Metro police department arrived at the crime scene after Sgt. Durbin. Sgt. Beck noticed “some blood droplets” on the ground between two trailers. He also saw a “muddy area outside of the trailer going towards the area [where the body was found] and there was a footprint in there. . . .” Sgt. Beck testified that the footprint “seemed out of place as there were no other footprints in and around the area.” 2 Officer Tim Matthews looked in several trash barrels around the truck stop, searching for weapons, women‟s clothing, anything with blood on it, or any plastic similar to the plastic found under the victim‟s head, but he did not find anything. He also searched under the trailers. Lt. Frank Regans was the supervisor of the crime scene. He worked in the identification unit. Lt. Regans took two castings of two different shoe prints found in the area of the victim‟s body. Officer Charles Linville testified that the victim‟s face and head were bloody. There was also blood on the victim‟s feet. She also had scratches and bruises. He collected swabs from the victim‟s chest area, thigh area, and stomach. Lee Meeks saw the victim in the evening on June 25, 2007. Mr. Meeks, the victim, and a man named “Hollywood” were “just riding around using drugs” in Hollywood‟s van. Hollywood stole “six to eight cases” of beer and sold the beer. They used the money from selling beer to buy “crack.” At approximately 10:20 to 10:30 p.m., they parked near the truck stop. Approximately 45 minutes after they arrived, the victim left the van. Mr. Meeks thought the victim was going to walk to White‟s Front Market to meet “her old man Derrick.” The last time Mr. Meeks saw the victim she walked between two parked trucks. The victim did not return to the van. Mr. Meeks and Hollywood left at approximately 1:30 a.m. Mr. Meeks testified that he did not contact the police when he learned that the victim had been killed because he had a criminal record. He was interviewed by the police while he was incarcerated for vandalism, and he agreed to submit a DNA sample. Joseph Uhlir, a retired truck driver, had parked for the night at the truck stop in Nashville. He testified that he arrived “roughly maybe about 11:00 to the 12:00 midnight frame roughly.” He “backed [his] rig” into a parking spot in the back where it was “kind of secluded.” He noticed another truck park beside him. He testified that it drove in “faster in [his] opinion than normal.” He also thought it was unusual that the truck parked in the opposite direction as his truck. He testified that the truck was also blocking another truck to its left. Mr. Uhlir radioed the truck beside him to tell him that he was blocking another driver, and the driver stated that he was “not going to be [t]here that long.” Mr. Uhlir finished working on his logbook, listened to the radio “just for a little bit,” and “climbed in the back and tr[ied] to get some rest.” He then heard the engine of the truck beside 3 him. The engine got “louder and louder.” Mr. Uhlir looked out of his window to make sure the truck did not collide with his truck while reversing, and the headlights blinded him. Mr. Uhlir testified that he “thought the tractor was white,” but that “it could have been a light yellow color[,] too. . . .” He testified that the other truck was at the truck stop for less than half an hour. Medical examiner Feng Li performed an autopsy on the victim. The victim was 25 years old at the time of her death. She died from a gunshot wound on the back right side of her head. The projectile was still in the victim‟s head, and based on the location of the bullet, Dr. Li determined that the victim was shot from behind and at a downward trajectory. The wound was consistent with a “close range gunshot wound” because there was soot material around the entrance wound. Dr. Li testified that the victim “would have died instantly” from the gunshot. The victim also had an abrasion caused by some type of blunt object near the gunshot entrance wound. Dr. Li testified that the victim had “multiple blunt force injuries” and other cuts and abrasions. Dr. Li described the victim‟s other injuries. She had bruises and contusions around her left eye, nose, and forehead and around her neck and chest. She had superficial cuts on her hands. Dr. Li testified that the victim‟s injuries could have been inflicted by a nightstick. Dr. Li testified that the victim also had a laceration of the anus, which he testified was inflicted at the time of death or after the victim‟s death. The victim also had contusions around her genitalia. Dr. Li testified that those injuries were caused by blunt force and could have been caused by an erect penis. Dr. Li testified that the victim had a “large area of skin defect on the right buttock area,” which Dr. Li testified could have been caused by a razor. The wound was approximately two inches by two and a half inches and was likely caused at the time of death or after death. Dr. Li collected a rape kit and DNA swabs from the victim‟s body. Sgt. Postiglione testified that he viewed the videotape recordings obtained from the truck stop and two neighboring businesses and developed a suspect vehicle. On July 12, 2007, he and Detective Lee Freeman went to the truck stop to “locate some fuel tickets.” As he drove towards the truck stop, Sgt. Postiglione observed a yellow tractor trailer similar to the truck he had observed in the video drive past the truck stop. Sgt. Postiglione followed the truck around the block and into the truck stop, where the truck parked in the parking lot. Sgt. Postiglione approached the driver‟s side of the truck and “banged on the door.” There was no response, and he noticed the curtains had been pulled closed. He “banged on the door a second 4 time[,]” and Sgt. Postiglione saw the curtain open and saw [the petitioner] “looking down” at him. Sgt. Postiglione showed his identification and asked to speak to [the petitioner], and [the petitioner] exited the truck. [The petitioner‟s] shirt was “all the way opened[,]” and he was not wearing shoes. Sgt. Postiglione testified that [the petitioner] “was making motions like he had just woken up like he had been asleep.” Sgt. Postiglione explained that he was looking for a vehicle similar in description to his, and they “had a little brief discussion.” Sgt. Postiglione then asked [the petitioner] if he would submit DNA samples, and [the petitioner] consented. [The petitioner] also provided Sgt. Postiglione with his Illinois driver‟s license. Detective Freeman took DNA samples from [the petitioner]. Sgt. Postiglione noticed what “appeared to be blood drops on the driver‟s door, several blood drops.” He asked to search [the petitioner‟s] truck, and [the petitioner] consented. Sgt. Postiglione stepped into the truck and “sat on the back mattress.” He noticed a bag between the driver‟s seat and the bed, and he looked inside. He saw what appeared to be bloody clothing. He asked [the petitioner] if he could explain the contents of the bag, and [the petitioner] told him that he had cut his leg getting in and out of his truck and that he would “wipe the blood and then place it in the bag.” Sgt. Postiglione asked [the petitioner] to show him the cut. [The petitioner] pulled up his pants leg, but Sgt. Postiglione testified that he saw no cuts, scabs, or scars on [the petitioner‟s] leg. He testified, “[The petitioner] couldn‟t explain it any further.” Inside the truck, Sgt. Postiglione also saw a pair of black shoes. He picked them up and noticed that the tread pattern was similar to the tread pattern of a footprint found near the victim‟s body. He showed Detective Freeman the shoes and asked if he thought it looked similar, and Detective Freeman agreed that it did. Sgt. Postiglione testified that, prior to getting in the truck, he asked [the petitioner] if he had a weapon in the truck, which [the petitioner] denied. Sgt. Postiglione testified that he asked [the petitioner], “is this the truck [they]‟ve been looking for[,]” and [the petitioner] “shrugged his shoulders. . . .” Sgt. Postiglione testified that he asked again if it was “the truck [they]‟ve been looking for[,]” and [the petitioner] shrugged his shoulders again. Sgt. Postiglione then asked [the petitioner] if he was “the person [they‟d] been looking for[,]” and [the petitioner] “just looked at [him] and he shrugged his shoulders.” [The petitioner] then responded, “[I]f you say so.” Sgt. Postiglione then asked [the petitioner] again if there was a weapon inside the truck, and [the 5 petitioner] admitted that he had a .22 caliber gun inside. Sgt. Postiglione testified that he knew that the victim was killed with a .22 caliber gun. Sgt. Postiglione placed [the petitioner] under arrest, and [the petitioner] was taken to General Hospital to be examined and then taken to police headquarters. At the headquarters, Sgt. Postiglione advised [the petitioner] of his Miranda rights, and [the petitioner] agreed to give a statement. In a videotaped statement, [the petitioner] is seated across the table from Sgt. Postiglione and Detective Freeman in a small interview room. Sgt. Postiglione read [the petitioner‟s] rights to him, and [the petitioner] answered affirmatively that he understood his rights. [The petitioner] then stated that he had stopped at the Pilot truck stop and “fueled up” when David Powell and Richie Keim approached him. [The petitioner] stated that “they walked up” and asked, “Where‟re you going now?” [The petitioner] told the men that it was “none of [their] business,” and the men stated that it was “[their] business now.” [The petitioner] stated that David rode with him in his truck to the TA truck stop, and Richie followed in another vehicle. [The petitioner] thought there was a third person in the vehicle. [The petitioner] went inside the TA to get something to eat. When he returned to his truck, the victim “was sprawled out in the back.” The men told [the petitioner], “It‟s your problem, not ours,” and left. [The petitioner] then “proceeded to clean the mess up.” [The petitioner] stated that the victim was not wearing any clothes, and there were “bags over her head.” He stated that “there was blood everywhere.” [The petitioner] told detectives that he had a .22 caliber rifle in his truck and that he believed the victim was shot with his rifle. He stated that the men “meet [him] everywhere.” He did not know how the men knew where he was. He “dumped her body” behind the truck trailers at the truck stop. He stated that he displayed her body “in plain view.” He stated that the men “were laughing about” having had sex with the victim. When Sgt. Postiglione asked [the petitioner] if the victim had been cut, [the petitioner] stated that the men had told him that “she had a good tattoo.” Sgt. Postiglione had not mentioned that the victim had a tattoo. [The petitioner‟s] demeanor while giving the statement appeared calm. Sgt. Postiglione subsequently located and interviewed Mr. Keim, Mr. Powell, and Mr. Sanders and obtained their fingerprints and DNA samples. Sgt. Postiglione testified “[t]here was no[t]--one shred of evidence suggesting any of these individuals were involved.” 6 Detective Freeman testified that he reviewed the video recordings obtained from the truck stop and neighboring businesses and developed a suspect vehicle. That truck drove to the back area of the truck stop and parked during the relevant time frame. The truck left “within a certain amount of time without doing anything else, going to the gas pumps or anything else.” Detective Freeman also corroborated Sgt. Postiglione‟s testimony about the detectives‟ initial encounter with [the petitioner]. Lori Young, who is Richie Keim‟s mother, testified that Mr. Keim has Asperger‟s disease and schizophrenia. She testified that Mr. Keim is “wholly disabled” and cannot testify, enter into legal agreements, or drive a vehicle. In June, 2007, Mr. Keim was living with Ms. Young in Franklin, Kentucky. She testified that he was not able to leave without her supervision. Ms. Young testified that it was not possible that Mr. Keim left Kentucky and went to Tennessee without her knowledge. When officers investigating the case came to talk to her, she allowed them to take a statement and DNA from Mr. Keim. Ms. Young testified that she met [the petitioner] in 2002 when her truck broke down in Maryland, and she “received a ride from a truck driver or two” until she got to her home in Arizona. She testified that she rode in [the petitioner‟s] truck for “[t]wo, maybe three” days. [The petitioner] offered to rent a house to Ms. Young, and she lived in that house for “[t]wo and a half to three months” before she moved out. She saw [the petitioner] “[m]aybe once at the bowling alley but [she] didn‟t speak to him[,]” and that was the last time she saw [the petitioner]. Terry Wayne Sanders, II, testified that he lived in Elwood, Indiana. He testified that he had spoken to [the petitioner] on two separate occasions in 2001. The first time he spoke to [the petitioner] was after Mr. Sanders and some friends had “vandalized his house” by wrapping toilet paper and plastic wrap around [the petitioner‟s] trees and front porch. Mr. Sanders was 15 years old at the time. [The petitioner] confronted Mr. Sanders. Mr. Sanders later dated [the petitioner‟s] niece and talked to [the petitioner] one other time in the fall of 2001. Mr. Sanders was in Albuquerque, New Mexico, on June 25, 2007, because his mother had been involved in a car accident. Mr. Sanders‟ niece and grandmother were killed in the accident. Mr. Sanders arrived in Albuquerque on June 22, 2007, and returned to Indiana on July 2, 2007. 7 Danny Davis was [the petitioner‟s] employer through his small trucking firm at the time of [the petitioner‟s] arrest. Mr. Davis testified that [the petitioner] had worked for him for approximately one year at the time of [the petitioner‟s] arrest. Mr. Davis recalled a conversation between [the petitioner], [the petitioner‟s] wife, Mr. Davis, and Mr. Davis‟s wife, in which Mr. Davis asked [the petitioner] “why he liked these big truck stops. . . .” Mr. Davis stated that “them lot lizards will be crawling all over your vehicle in the big truck stops.” Mr. Davis testified that “lot lizards” is a slang term for prostitutes. [The petitioner‟s] wife “smacked him on the shoulder and said, „[Y]ou better not be messing with any lot lizard.‟” [The petitioner] turned to Mr. Davis and said, “I just shoot them.” Mr. Davis “took it, you know, as a joke . . . and kind of laughed it off. . . .” Mr. Davis testified that company policy and the law prohibited drivers from having weapons inside their trucks. Mr. Davis testified that [the petitioner‟s] fuel receipts showed that [the petitioner] purchased fuel at a Pilot station in Nashville at 12:33 p.m. on June 25, 2007. After being recalled to the witness stand, Sgt. Postiglione testified that he interviewed Lucas McLaughlin, a fellow inmate of [the petitioner]. McLaughlin agreed to wear a wire and record his conversations with [the petitioner]. Sgt. Postiglione instructed McLaughlin not to speak to [the petitioner] about the homicide, but only the “solicitation case.” Two recorded conversations between McLaughlin and [the petitioner] on May 2, 2008, and May 16, 2008, were played for the jury. In the first recording, [the petitioner] told McLaughlin that he needed someone to be an alibi witness and testify that [the petitioner] refused consent for Sgt. Pos[tig]lione to search his truck. McLaughlin asked [the petitioner] for Lori Young‟s address. [The petitioner] told McLaughlin, “I would owe you dramatically[,]” and McLaughlin said, “Right, well my thing is, Lori goes away, you know[,]” to which [the petitioner] replied, “[Y]eah.” [The petitioner] and McLaughlin discussed where to find Ms. Young, and McLaughlin said, “I‟ll blow the whole f[ ]ing house up. It‟s a gas leak.” [The petitioner] replied, “[w]hatever. You know that‟s your, that‟s your thing.” McLaughlin stated that after [the petitioner‟s] trial, they could “settle up.” McLaughlin suggested that [the petitioner] work for his uncle‟s trucking company and pay McLaughlin ten percent of his earnings, and [the petitioner] agreed. In the May 16, 2008, conversation between [the petitioner] and McLaughlin, McLaughlin asked [the petitioner] who “David” was and 8 stated, “[I]f I‟m gonna pop his ass, I need to know why.” [The petitioner] told McLaughlin that he was a friend of Richie and Lori. McLaughlin told [the petitioner], “I thought about it, and I‟m just gonna do it how I‟m gonna do it. It‟s a gas leak in the trailer, and everybody blows up. I‟m happy. You‟re happy.” McLaughlin stated that he wanted to know “who the David guy was and if, if he was that big of a threat [because] one thing I don‟t like doing is innocent bystanders.” McLaughlin then asked, “[w]hat‟s one more explosion?” and [the petitioner] replied, “Yep.” McLaughlin asked [the petitioner] if they were “still on” and whether [the petitioner] would “pay [him] back.” [The petitioner] again replied, “Yep.” McLaughlin said, “I‟m thinking like roughly fifteen, fifteen thousand. And that‟s for the whole thing, everybody. And you go about your merry day. No witnesses show up for you.” McLaughlin told [the petitioner] that he would not contact him, and [the petitioner] said, “[n]o connections . . . . [j]ust the number to your uncle‟s trucking company.” McLaughlin told [the petitioner], “I ain‟t gonna do this, then you gonna wind up having remorse, or a guilty conscience or whatever.” [The petitioner] told McLaughlin to “do [his] thing” and stated, “I don‟t want to know.” [The petitioner] stated, “[t]he less I know, the better it is for you.” McLaughlin told [the petitioner], “if I blow up the trailer, and take out Lori and her son, I don't know his name,” and [the petitioner] stated, “Richie.” McLaughlin then asked, “does David live there too?” [The petitioner] answered “[n]ope” and told McLaughlin where David lived with his daughter. McLaughlin asked, “[d]oes she need to go?” and [the petitioner] replied, “[n]ot really, no.” McLaughlin asked [the petitioner] if David, Lori, and Richie were “the only three that can hurt [the petitioner],” and [the petitioner] replied, “[y]ep.” The following exchange then occurred: McLaughlin: Fifteen grand, I kill all three. After that, you don‟t know me until you come out, then you just call that phone number, talk to my uncle. My uncle will get you in touch with me. But other than that, we don‟t know each other. [The petitioner]: Alright. McLaughlin: Is that a deal? [The petitioner]: Yeah. 9 TBI Agent Steve Scott was qualified by the trial court as an expert in forensic firearms testing and ammunition testing. Agent Scott identified the rifle that was found inside [the petitioner‟s] truck as a .22 caliber rifle. A .22 caliber cartridge was found in the top drawer of a storage compartment behind the driver‟s seat in [the petitioner‟s] truck. Another .22 caliber cartridge case was found on the floor behind the passenger seat in the truck. A third shell casing was collected when the truck was processed for evidence, and a fourth shell casing was found on the floor of the passenger side of the truck. Agent Scott also identified a nightstick that was found in a wooden drawer under the bed in [the petitioner‟s] truck. He identified two pairs of shoes and two sets of handcuffs that were found in the truck. Black electrical tape was found in an outer storage compartment on the outside of the truck on the passenger side. A second roll of electrical tape was in a storage compartment above the dashboard. A yellow notepad found in the truck had notes that read, “go back TA” and “4-sex okay.” A logbook indicated that [the petitioner] was in Nashville on the afternoon of June 25, 2007. A box of cling wrap was found near the lower bunk in the sleeper portion of the truck. Agent Scott examined a bullet recovered by the medical examiner from the victim‟s head and compared it to [the petitioner‟s] rifle. He concluded that the bullet was fired from [the petitioner‟s] rifle. Agent Scott also concluded that three of the four cartridge casings found inside [the petitioner‟s] truck were fired from [the petitioner‟s] rifle. The fourth casing did not have enough individual characteristics for Agent Scott to conclusively identify it, but he could not exclude the casing from having been fired by the rifle. Agent Scott observed what appeared to be “blood staining in some of the cracks and crevices” of [the petitioner‟s] rifle, but he did not test the stains to determine whether they were blood. He took swabs of the stains. TBI Agent Linda Littlejohn was qualified by the trial court as an expert in the field of forensic testing of shoes and shoe prints. She testified that she compared a pair of [the petitioner‟s] shoes with casts of two different shoe prints made at the crime scene. With respect to the cast of one of the shoe prints at the crime scene, [the petitioner‟s] shoes “were consistent with size, shape and tread design so therefore they could have 10 made that cast or another shoe just like it could have made that impression.” TBI Agent Kendra Fleenor was qualified by the trial court as an expert in the field of latent print comparison. She processed [the petitioner‟s] truck and lifted latent fingerprints. She compared the fingerprints from the truck with those of Terry Sanders, David Powell, Richard Keim, the victim, and [the petitioner]. None of the victim‟s prints were in [the petitioner‟s] truck. The prints in the truck did not match Mr. Keim‟s, Mr. Powell‟s, or Mr. Sanders‟ prints. 25 of the prints taken from the truck matched [the petitioner‟s] prints. [The petitioner‟s] prints were found on a garbage bag and the .22 caliber rifle. Agent Patrick Ihrie, of the DNA and serology unit, testified that semen was present in the victim‟s mouth, anus, and vagina, but the semen did not match [the petitioner‟s] DNA profile. The semen also did not match the DNA profiles of Lee Meeks, Wayman “Hollywood” Henderson, or the victim‟s other previous boyfriends. The semen also did not match the DNA profiles of Richie Keim, David Powell, or Terry Sanders. Agent Ihrie was unable to obtain a DNA profile from semen found on the victim‟s thigh. Agent Ihrie testified that he removed and processed several items from [the petitioner‟s] truck. A utility knife with a removable razor blade and a “leather pouch to go with it” were recovered from the driver‟s side storage area. A second knife was found in “drawer number 3.” “Sex toys” were also found in “drawer number 3.” Agent Ihrie conducted DNA analysis from different areas of the sex toys. The DNA on the “tan device” that had what looked to be a “blood pressure inflating bulb on one end” was a mixture of male and female genetic material and did not match any samples from the known individuals. The DNA profile from the “red device” was also a mixture of male and female genetic material, and the “major contributor” was consistent with [the petitioner]. Agent Ihrie identified a knife found in the center console of [the petitioner‟s] truck. He testified that the knife was tested, and it was determined that blood was present on the blade edge. Agent Ihrie obtained a DNA sample, but the profile was “very small,” and it indicated only that the DNA came from a female. Agent Ihrie also identified [the petitioner‟s] DNA on the handle of the knife. 11 Two sets of metal handcuffs were processed for DNA, and the test indicated the presence of human DNA, but the sample contained a small amount of DNA, and a profile was not obtained. A penis pump was found in the lower bunk area of [the petitioner‟s] truck. Plastic wrap was found in the cubby area behind the driver‟s seat and in the back floorboard. Agent Ihrie tested and confirmed that several “reddish brown stains” in [the petitioner‟s] truck were blood. Blood found on the door jamb area of the truck matched the victim‟s DNA profile. Two of the 13 genetic loci were inconclusive. However, the report concluded that the chance that the blood on the door jamb belonged to a person other than the victim was only one out of 23 trillion. A blood sample taken from inside the driver‟s side of the truck also matched the victim‟s DNA profile. Four genetic markers were inconclusive, but only one in 85 billion Caucasian people would have the same profile. Another blood sample was taken from the back of the driver‟s seat and tested. 13 out of 13 loci matched the victim‟s DNA profile, and the probability of an unrelated individual having the same profile was one out of 15 quadrillion people. Agent Ihrie also examined reddish brown stains on [the petitioner‟s] rifle. A blood stain on the “rear sight” matched the victim‟s DNA profile. Blood from the barrel where the “wooden part of the forearm and the barrel meet” also matched the victim‟s DNA profile, and Agent Ihrie testified there was a one in 1.4 trillion chance that it was someone other than the victim‟s DNA. Blood from “[n]ear the end of the barrel” also matched the victim‟s profile. For the defense, TBI Agent Sandra Poltorak, an expert in the field of tire track comparison, testified that [the petitioner‟s] tire tracks did not match any of the tire tracks found at the scene where the victim‟s body was found. She also testified that the “stance measurement” between the tire tracks found at the scene was inconsistent with the “stance,” or distance between the two front tires, of [the petitioner‟s] truck. State v. Bruce D. Mendenhall, No. M2010-02080-CCA-R3-CD, 2013 WL 430329, at *5- 13 (Tenn. Crim. App. Feb. 4, 2013), perm. app. denied (Tenn. June 12, 2013). We will review the complaints of the petitioner, as best we understand them. 12 ANALYSIS Initially, we note that the petitioner‟s appellate brief does not include any references to the thirteen volumes of the trial transcript or the transcript of the evidentiary hearing on his petition. Rather, it sets out as the “Statement of Facts” only claims advanced by the petitioner at the evidentiary hearing but without page references to the transcripts. We found the petitioner‟s testimony difficult to follow and, in some cases, to understand exactly what his complaint was. While making our determinations regarding this appeal, we have reviewed the evidentiary hearing transcript but decline to search through the multi-volume trial transcript to locate testimony, if any, relevant to this appeal. The post-conviction petitioner bears the burden of proving his allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, our review of a post- conviction court‟s application of the law to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a presumption of correctness given only to the post-conviction court‟s findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999). To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show both that trial counsel‟s performance was deficient and that counsel‟s deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that same standard for determining ineffective assistance of counsel that is applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong test: First, the defendant must show that counsel‟s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‟s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 13 466 U.S. at 687. The deficient performance prong of the test is satisfied by showing that “counsel‟s acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but for counsel‟s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Courts need not approach the Strickland test in a specific order or even “address both components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”). Testifying at the evidentiary hearing were the petitioner and one of his trial counsel. Counsel said he had been licensed since 2002 and had handled “more than a thousand” criminal cases, including those charging first degree murder. The petitioner complained first that trial counsel had a time-dated and stamped photograph showing that thirteen minutes before the petitioner was interviewed by Metro Nashville police officers in civilian clothes, he was dressed in an orange jumpsuit and leaving a “police lab” building. He did not ask trial counsel that the photograph be entered into evidence and shown to the jury but “figured” counsel would do so. He did not produce this photograph at the hearing or explain why it was of significance, other than to say he “would have liked for [the photograph] to have been shown.” As to this claim, counsel testified he recalled some sort of “inconsistency” in the photograph, but he saw no way such a claim would have assisted in the motion to suppress the petitioner‟s later statement to police officers. The petitioner maintained that he was not the person being interviewed during a videotaped interview, although counsel testified he believed that it was the petitioner who was shown in the video giving a statement to officers. Counsel consulted an expert in this regard but was unable to develop proof that the person in the video was not the petitioner. The petitioner next asserted that, after reading the opinion of this court on direct appeal, he realized, as best we can understand, that trial counsel should have proved when “that curtain went closed.” He provided no explanation as to how this could have been proven, how it was relevant, or if, in fact, such additional proof even was available. 14 Counsel was not questioned regarding this. The post-conviction court did not make a specific finding as to this claim, which we, likely as did the trial court, simply do not understand. Regarding jury selection, the petitioner complained that trial counsel did not “get rid of a lot [of prospective jurors] I thought should have went.” As to this claim, the post- conviction court accredited trial counsel‟s testimony that he did not recall the petitioner‟s asking for jurors to be stricken and that such determinations were strategic choices based upon counsel‟s experience. We agree with the post-conviction court that the petitioner failed to show that he was prejudiced by the fact that these jurors were not stricken from the jury. Further, the petitioner said that trial counsel “could have showed evidence.” He explained that when he arrived in Wilson County, apparently still in custody, he obtained a list of seven possible suspects for, as we understand, the homicide which was the basis for the conviction he now questions. He said he had sent the list to his children but did not have a copy for the court at the evidentiary hearing. As best we can understand, he did not give a copy to trial counsel. The petitioner said that he wanted more DNA testing done, apparently on additional samples taken from the victim‟s body, but had “no idea” whether this had been done. As to this claim, the post-conviction court noted that expert testimony at the trial showed that the DNA samples taken from the victim could not be matched to any person in the DNA database. Further, the petitioner failed to show how any further testing would have benefitted his defense. Thus, as did the post-conviction court, we conclude that the petitioner failed to show that counsel was ineffective or that the petitioner was prejudiced thereby. As to the claim of insufficient meetings with the petitioner, counsel said that he met with him more than any other client he had ever represented. On cross-examination, counsel said that, at any time, two or three attorneys were working on the petitioner‟s case. As to this claim, the post-conviction court concluded that the petitioner failed to show that trial counsel had been ineffective or that he had been prejudiced thereby. The record supports this determination. Concluding his testimony, the petitioner said exculpatory evidence existed which would have helped him, including “[w]hose tire tracks were there,” “[w]hose other shoe was that imprinted out there,” and “whose gray hairs w[ere] found on her?” While the petitioner presupposes that counsel was ineffective for failing to identify the donor of the hairs found on the victim or to match tire tracks found at the scene, he has not explained how his counsel could have performed this function. Rather, a DNA expert, testifying for 15 the State, said he was unable to match the DNA to any in the database. Accordingly, we agree with the post-conviction court that, as to this claim, the petitioner also has failed to show that trial counsel was ineffective or that the petitioner was prejudiced thereby. CONCLUSION Based upon the foregoing authorities and reasoning, the judgment of the post- conviction court is affirmed. _________________________________ ALAN E. GLENN, JUDGE 16

01-03-2023

01-25-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142920/

163 OFFICE OF l-$fE AlTORNEY GENERAL OF TEXAS AUSTIN Honorable F. A. 'Peylor,~5g5 2 264 3hl8 48p4U'twnt has horetoforcl h&4 in Opinion Ro5. O-752, and O-996 that the aoamttssionars~ aourt QA aouatiea oppratingun48r ths CkmralRoe&Lav of ths State oZFexe5, a5 sat out in Tale tE9,Vol. 7, VamwL'a Alluotet54 civil stetuter, lm not 5mpov5redor authorfredto buy eutomobil55,piok-ups,oc truck5 for the 6ounty to be us54 by the mmJl58lonern In the parforwwe ot thsir 4uti55 as oaunty oomalsniom3m. In Cpinion Ho. O-2362, it vas held thet th5 ocmmi5- Bioa5r5'oourtor sxRAmt&colmty he4 no authority to pi?aheno and p5yfor tires en4 tub58 for PILeutowbile oyzlddby a oounty oom5i56lon5rvhuh h6 ur54 ia ths oon4ucrt of aouuty busfners. oh Cpiniop Ho. 0-1918, it van halt3that ths aomnira~one~s@aomt OS Iklla5 County he4 no legal authority or paver to u55 the ooun- ty fun48 tar paymatof sqmase8 -ed ln oonneotlonvlth 5utoaobll88 driven by thy souaty oarmis8ioners. In au ophlorr 0S thl5 depwtmant &ted Augu8t 5, 1920, aa4 pubri5h84 at p. U4 of th5 Bienn.lalReport ror th6 year5 1918. 1920, it via5 he14 that th5 ootmty oomm.ie5kme~5are not euthorLx54 to puroha~ en4 pay for gasollns OF other automobile 8uppllier and rubait their 6ladm5 thanfor to thiocsai55Loner5co'5ourt fop audit an4 a3.Mv5aoe,an4 alaSan far such 'mpp&ies furnhhe4 for wuah pmpo555 an not legftSm8t5ehaPge5 against ths county, vhsther 50 pawha or sol4 direct to tbs end p5i4 lar by ths oos55f5oton5rn tmnty W the dealer. Thl5 oplnl.6n oite5 ths oa5en of Gnippa 83. Stavmt InmVork5, 66 S. Vi. 3321 &igby v. State, 10 8. V. 760; an4HaFa5vr,liaaon4, 203 8.W.~ #5. You stat5 -ia &r lott5r thst, 'th.levehble ve8 us54 b7 this 5aploy55 in th5 di56hargs oi hl5 4utie5 on the ma45 of ths mInty.* Thl8 belag true, it in our opinion, that the aounty auditor aan 15gally lppxmve th5 abc+veulation* ala*. Provl454, hovovoe, t@ aolslPisrionsn~ ootwt ranted th5 plahrp or 15&ly authorl504 5ome.one to do so fas the purpow of said 55tploy55 porfom.lngen4 4256harginghi5 duties oat,or ln aonn5ationvlth ths publto roa45 of the aounty. Trusting that ths rongoing fully ausvims your inuuby, ve era Youra verytmly ATTORHR’X GERRML OF TXJU

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142940/

OFFICE OF fHl?:A~ORNEY GENERAL OF -+= AUSTIN Hr. 0. J. 8. lEllingeon QenerEilManager Texas Prison System IiUltsvllle,,Texas Dear sirr Opfnion Ao. 0-3423-A Re: Secondband textbooks for penitentiary. Your inquiry of Rag 1, 1941, asking our ~"c&di ais !to,tihether the TexSS PrlSon Syitem:is: '. entitled to'current ado@tlon secondhand books; reoeivod. The Aat of the LogLaleture~,be- Artlele 6203, Bevltwl Qivl.lStatutes, does not rofor ta sociondbandtextbooks ot ang psrtioulslryea% We th3Ak the proper oonstructlon to be plated on aaid statute is that the State Superintendent of Publla Instruction should furnish to the Texas Prlaon Board the moat available seoondhand books he has to enable the Texas Prison Board to teach the inmates of~the penitentiary reebing, nltlng, ,spellingand arlth- metio. Under rrridstatute he is not required to furnish ourrent~adoptiong eeaandhrnd books. very truly yourll ATTORBEP Bg31EBALOF TXAt3 By-$ Qoo. w. Reroun Asdaent euBtHR APPRwEDxAY23,1g41 / $ $ - Qrover Sellers, 1 FXEST lW3ISTART ATTORREY CaaRRAL

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4405278/

11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT Siana Oil and Gas, * From the County Court at Law of Midland County, Trial Court No. CC20132. Vs. No. 11-19-00012-CV * June 6, 2019 Tim Snelson’s Pumping Unit * Per Curiam Memorandum Opinion Service, Inc., (Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J., sitting by assignment) (Willson, J., not participating) This court has considered Siana Oil and Gas’s motion to dismiss this appeal and concludes that the motion should be granted. Therefore, in accordance with this court’s opinion, the appeal is dismissed. The costs incurred by reason of this appeal are taxed against the party incurring same.

01-03-2023

06-11-2019

https://www.courtlistener.com/api/rest/v3/opinions/4127816/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT March 12, 2013 The Honorable Mike Anderson Opinion No. GA-0992 Harris County District Attorney Criminal Justice Center Re: Authority of certain persons to direct the 1201 Franklin, Suite 600 disposition of blood seized during the Houston, Texas 77002 investigation of an intoxication-related offense (RQ-1082-GA) Dear Mr. Anderson: Your predecessor asked two questions regarding the proper disposition of evidence in a criminal case: 1 (1) Does the Harris County District Attorney's Office have the authority to petition a district or inferior court for the destruction of blood seized during the investigation of an intoxication-related offense? (2) Do district court judges and inferior court judges have the authority to order the destruction of blood seized during the investigation of an intoxication-related offense? Request Letter at 1. The brief submitted with the request letter indicates that your office is aware of the statutes governing the destruction of blood evidence in felony cases. Brief at 2-3 (citing TEX. CODE CRIM. PROC. ANN. art. 38.43(a)(2), (d) (West Supp. 2012)). The brief states that the vast majority of blood samples currently in the possession of Harris County law enforcement officials were seized in relation to intoxication-related misdemeanor offenses, in which the procedures governing felony cases are inapplicable. Brief at 3. The requestor also states that most of these samples relate to misdemeanor cases that have been "concluded" or "finally resolved." Request Letter at 1; Brief at 3, 5. Accordingly, we understand your questions to concern a court's authority to order the destruction of blood evidence related to misdemeanor cases in which final judgment has been entered and all appeals exhausted. 1 See Request Letter and Brief from Honorable Patricia R. Lykos, Harris Cnty. Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen . (Sept. 5, 2012), http://texasattorneygeneral.gov/opin ("Request Letter" & "Brief'). The Honorable Mike Anderson - Page 2 (GA-0992) We begin by addressing the second question, which concerns a court's authority to order the destruction of blood evidence related to a misdemeanor case that has been finally resolved. To begin with, a court has all powers necessary for the exercise of its jurisdiction, including the power to issue writs and orders and "determine all essential questions." TEX. Gov'T CODE ANN. § 21.001(a) (West 2004); Garcia v. Dial, 596 S.W.2d 524, 527-28 (Tex. Crim. App. 1980). Without jurisdiction, however, a court has no power to act. State v. Dunbar, 297 S.W.3d 777, 780 (Tex. Crim. App. 2009); see also State v. Patrick, 86 S.W.3d 592, 596 (Tex. Crim. App. 2002) (holding that "a source of jurisdiction must be found to authorize the trial court's orders"). Jurisdiction ends "when a case becomes final or is taken to a higher court." Patrick, 86 S.W.3d at 596. Therefore, a trial court does not retain jurisdiction over a case that has been finally resolved. A court that no longer has jurisdiction over a case has no authority to issue an order providing for the destruction of evidence in that case. Cf. TEX. CODE CRIM. PROC. ANN. art. 11.01 (West 2005) (granting trial courts authority to issue writs of habeas corpus to determine whether an inmate is lawfully incarcerated). Furthermore, the request letter does not point to, and we are not aware of, a statutory or common-law cause of action or any other legal authority that would empower a court to order the destruction of evidence related to misdemeanor cases over which the court otherwise lacks jurisdiction. Consequently, we conclude that a court likely lacks the authority to order the destruction of blood evidence related to misdemeanor cases that have been finally resolved. Because petitioning a court for an order the court lacks the authority to issue would likely be ineffective, we need not address the first question concerning the authority of the Harris County District Attorney's Office. While we conclude that a court does not have the authority to order the destruction of blood evidence collected in a misdemeanor case that is finally resolved, it is possible that other procedures may be used to destroy that evidence. Because your questions are limited to a court's authority to order the destruction of blood evidence, we do not address other potential means of destroying such evidence. Prosecutors should always take care that their handling of evidence in criminal cases comports with constitutional requirements. See Arizona v. Youngblood, 488 U.S. 51, 58 (1998) (holding that failure to preserve potentially useful evidence was not a denial of due process absent a showing of bad faith on the part of the state); see also Ex parte Napper, 322 S.W.3d 202, 238 (Tex. Crim. App. 2010) (holding that a finding of bad faith must be based on evidence demonstrating an "improper motive, such as personal animus against defendant or a desire to prevent the defendant from obtaining evidence that might be useful"). The Honorable Mike Anderson - Page 3 (GA-0992) SUMMARY A district or inferior court likely does not have authority to order the destruction of blood collected during the investigation of an intoxication-related misdemeanor offense after the underlying case has been finally resolved. DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chairman, Opinion Committee Stephen L. Tatum, Jr. Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4149974/

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Cornelius Milan Harper v. The State of Texas Appellate case number: 01-14-00641-CR Trial court case number: 11-DCR-056513 Trial court: 434th District Court of Fort Bend County On August 13, 2015, we abated this appeal and remanded to the trial court to hold a hearing regarding inaccuracies in the reporter’s record. On November 23, 2016, we received a supplemental reporter’s record of the most recent hearing held in the trial. During this hearing, the trial court heard the testimony of the substitute court reporter, Karen Rothman, whom the trial court appointed to correct and prepare a record, if possible. After hearing Rothman’s testimony, the trial court determined that the record was acceptable for filing in the court of appeals. On January 24, 2017, a supplemental clerk’s record was filed containing the trial court’s findings of fact and conclusions of law. The trial court concluded that Rothman had corrected 20 volumes of the reporter’s record, namely, volumes 17, 18, 19, 23, 24, 27, 28, 32, 33, 37, 38, 43, 44, 47, 51, 52, 56, 57, 58, and 59. The trial court found that these volumes were certifiable and certified in accordance with court reporting standards and the Texas Rules of Appellate Procedure. The trial court further ruled that these volumes were to be incorporated with all other volumes of the previously certified and filed volumes. Appellant has filed a motion for extension of time and an objection to the reporter’s record, complaining that Karen Rothman has not filed the complete, certified record, that all of the abatement hearings held regarding correcting the record should be revised because they were all labeled “Volume one of one.” Finally, appellant seeks an extension until 30 days after the complete reporter’s record is filed. On February 23, 2017, Rothman filed a notice that all of the corrected volumes had been filed in this Court and that she was only responsible for the correction and filing of the 20 volumes assigned to her by the trial court. Rothman also objects to appellant’s request for different labeling of the abatement hearings. Based on the recent filings, this Court determines that court reporter Rothman has filed all 20 corrected volumes in September 2016. With the recent filing of the master index, the record is now complete. Based on the trial court’s findings and conclusions, we ORDER that the 20 volumes filed on September 26-27, 2016 by Rothman replace the volumes filed by Rachel Gamez on November 12, 2015. Although appellant objects to the abatement hearing records’ label as “Volume one of one,” appellant may distinguish between these hearings by stating the date of the hearing. There is no need for revision of these records. Accordingly, we reinstate the appeal on the active docket and grant appellant’s motion. Appellant’s brief is due on or before April 3, 2017. It is so ORDERED. Judge’s signature: _/s/ Harvey Brown  Acting individually  Acting for the Court Date: March 2, 2017

01-03-2023

03-03-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127943/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 94-812 of : : January 19, 1995 DANIEL E. LUNGREN : Attorney General : : ANTHONY S. Da VIGO : Deputy Attorney General : : ________________________________________________________________________________ THE HONORABLE STEVE BALDWIN, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question: May a school district purposefully exclude military service representatives from access to pupil directory information? CONCLUSION A school district may purposefully exclude military service representatives from access to pupil directory information. ANALYSIS The present inquiry concerns the authority of a school district to prohibit access by military recruiters to student directory information. Such information is defined in Education Code section 49601, subdivision (c),1 as: ". . . student's name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and 1 All section references herein are to the Education Code, except as otherwise expressly indicated. . 94-812 height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the student." Section 49073 provides: "School districts shall adopt a policy identifying those categories of directory information as defined in subdivision (c) of Section 49061 which may be released. The district shall determine which individuals, officials, or organizations may receive directory information, provided, however, that no information may be released to a private profitmaking entity other than employers, prospective employers and representatives of the news media, including, but not limited to, newspapers, magazines, and radio and television stations. . . ."2 Section 49073.5, subdivision (a) states: "It is the intent of the Legislature that a school district, in adopting a policy pursuant to Section 49073 governing the release of pupil directory information, not purposefully exclude any military services representative from access to that information."3 Specifically, we are asked whether a school district may adopt a policy which purposefully precludes the release of directory information to military service representatives. For example, may a district adopt a policy allowing specified individuals, officials, and organizations to receive student directory information, but exclude military service representatives from such access? We conclude that a school district may bar military recruiters from access in the circumstances under consideration.4 We first consider whether section 49073.5, enacted in 1991 (Stats. 1991, ch. 299, ' 1), purports to interpret the unequivocal terms of section 49073 as enacted 15 years earlier (Stats. 1976, ch. 1010, ' 2). Of course, a subsequent expression of the Legislature bearing upon the intent of a prior statute which is unclear may be properly considered in determining the effect and meaning of the prior statute. (California Emp. etc. Com. v. Payne (1947) 31 Cal. 2d 210, 213-214; Tyler v. State of California (1982) 134 Cal. App. 3d 973, 977.) However, the view of a subsequent Legislature of the meaning of a prior Legislature's enactment is not controlling. (California Teachers Assn. v. Cory 2 Section 49073 prevails over provisions of the California Public Records Act (Gov. Code, '' 6250-6269) to the extent that it pertains to public access to student records. (' 49060.) 3 Subdivision (b) of section 49073.5 declares "the intent of the Legislature that . . . school districts minimize the release of pupil telephone numbers in the absence of express parental consent." 4 We have no occasion here to examine the import of the term "purposeful." By way of example, however, the last sentence of section 49073 provides: "No directory information shall be released regarding any pupil when a parent has notified the school district that such information shall not be released." Presumably, the refusal under those circumstances to release information to anyone, including military representatives, would not be purposeful. . 94-812 (1984) 155 Cal. App. 3d 494, 506-507; County of Sacramento v. State of California (1982) 134 Cal. App. 3d 428, 433-434, fn. 5; 71 Ops.Cal.Atty.Gen. 129, 138 (1988).) As stated in Del Costello v. State of California (1982) 135 Cal. App. 3d 887: ". . . The Legislature has no authority to interpret a statute. That is a judicial task. The Legislature may define the meaning of statutory language by a present legislative enactment which, subject to constitutional restraints, it may deem retroactive. But it has no legislative power simply to say what it did mean. . . ." (Id., at p. 893, fn. 8.) In our view, section 49073 is neither ambiguous nor unclear, and therefore provides no basis for a subsequent interpretation which would except from its patently discretionary terms ("The district shall determine which individuals, officials, or organizations may receive directory information . . ."), military service representatives or any other category of personnel. On the contrary, where the Legislature at the time of section 49073's enactment intended to except a category of individuals or groups, it did so by unequivocal expression (". . . provided, however, that no information may be released to a private profitmaking entity other than employers . . ."). Accordingly, subdivision (a) of section 49073.5 does not constitute an interpretation of section 49073, but must be granted independent, prospective significance. Looking only, then, at the terms of section 49073.5, subdivision (a), we find the introductory phrase: "It is the intent of the Legislature that . . . ." Ordinarily, the Legislature imposes a prohibition in unequivocal terms (e.g., "A school district, in adopting a policy pursuant to Section 49073 . . . , shall not purposefully exclude . . ."), and not by way of a mere declaration of intent to do so.5 Is there any indication that the words were intended to be prohibitory here? In analyzing statutory language, we are guided by traditional precepts of interpretation. Our task is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. We first examine the words of the statute themselves, attributing to the language its usual, ordinary import and according significance, if possible, to every word, phrase, and sentence thereof, avoiding surplusage. (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal. 3d 222, 230; 73 Ops.Cal.Atty.Gen. 1, 4 (1990).) The words must be construed in context, and statutes relating to the same subject must be harmonized, both internally and with each other, to the extent possible. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1386-1387; 75 Ops.Cal. Atty.Gen. 251, 253-254 (1992).) Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal. 3d 836, 844; 77 Ops.Cal.Atty.Gen. 185, 189 (1994).) As previously indicated, section 49073.5, subdivision (a) appears to constitute a mere declaration of intention. This view is confirmed by the legislative history of section 49073.5 -- no 5 Compare, e.g., the introductory portion of section 49076: "A school district is not authorized to permit access to pupil records to any person . . . except that: (a) Access to those particular records . . . shall be permitted to the following: . . . ." (Emphases added.) . 94-812 absolute prohibition was intended. When the legislation that ultimately resulted in the enactment of section 49073.5 was first introduced on March 5, 1991, as Assembly Bill No. 1105 (1991-1992 Reg. Sess.), it provided as follows: "Notwithstanding any other provision of law, governing boards of school districts shall not establish any policy that has the effect of denying requests of military recruiters for a list of high school graduates." Opposition to the bill came from school districts throughout the state and from the California School Boards Association. On April 18, 1991, the bill was amended as follows: "Notwithstanding any other provision of law, governing boards of school districts shall not adopt policy resolutions for the sole purpose of prohibiting any military services representative from obtaining pupil directory information." School districts continued to notify the Legislature that they opposed the bill, as amended, because it would remove local control over whether military service representatives should be given pupil directory information. On June 26, 1991, in the Senate Committee on Education, the bill failed passage by a 3-4 vote. However, reconsideration was granted, and on July 11, 1991, the bill was amended to read as section 49073.5 provides currently. The report of the Senate Committee on Education described the change in language as follows: ". . . [T]his bill would specify legislative intent, rather than a declarative edict, that governing boards of school districts shall not purposefully exclude military service representatives from gaining access to pupil directory information. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "This bill would express legislative intent that governing boards of school districts should not adopt policies that purposefully exclude the military services from gaining access to pupil directory information." Our initial view of section 49073.5 was thus correct; the legislation was intended to express the Legislature's hope, not its command. "`Successive drafts of a bill may be helpful in construing a statute . . . .'" (O'Brien v. Dudenhoeffer (1993) 16 Cal. App. 4th 327, 334.) "`The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision.'" (Silva v. Superior Court (1993) 14 Cal. App. 4th 562, 570.) "[R]eports of legislative committees and commissions are part of a statute's legislative history and may be considered when the meaning of a statute is uncertain. [Citations.]" (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal. 3d 456, 465; cf., People v. Jeffers (1987) 43 Cal. 3d 984, 993-997.) It is concluded that pursuant to the terms of section 49073, a school district may purposefully exclude military service representatives from access to pupil directory information. . 94-812 * * * * * . 94-812

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02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127944/

GREG o ATTORNEY GENERAL OF TEXAS ABBOTT May 7, 2012 The Honorable R Lowell Thompson Opinion No. GA-0925 Navarro County Criminal District Attorney 300 West Third Avenue, Suite 203 Re: Proper date for holding an election in Navarro Corsicana, Texas 75110 County to establish an emergency services district (RQ-1010-GA) Dear Mr. Thompson: You ask about the proper date for holding an election in Navarro County for the purpose of establishing an emergency services district. 1 Under chapter 775 of the Health and Safety Code, "[a]n emergency services district may be organized as provided by Article ill, Section 48-e, of the Texas Constitution ... and by this chapter to protect life and health." TEX. HEALTH & SAFETY CODE ANN. § 775.003 (West 2010). The creation of such a district requires the filing of a petition, a hearing before the commissioners court, approval of the petition by the commissioners court, and the scheduling of an election. See id. §§ 775.011 (petition for district located in one county); 775.013 (contents of petition); 775.016 (hearing); 775.017 (approval of petition) (West Supp. 2011); and 775.018 (election) (West Supp. 2011) . You explain that the commissioners court is at present attempting to schedule an election, but you are concerned that Senate Bill 100, enacted by the Eighty-second Legislature, may be in conflict with Election Code provisions that establish legislatively mandated uniform election dates. See Act of May 29, 2011, 82d Leg., RS ., ch. 1318, § 4, 2011 Tex. Gen. Laws 3804, 3810. Chapter 775 states that "[t]he election shall be held on the first authorized uniform election date prescribed by the Election Code that allows sufficient time to comply with other requirements oflaw." TEX. HEALTH & SAFETY CODE ANN. § 775.018(e) (West Supp. 2011). Chapter 41 of the Election Code, as amended by Senate Bill 100, prescribes the following dates for elections: (a) Except as otherwise provided by this subchapter, each general or special election in this state shall be held on one of the following dates: I Letter from Honorable R. Lowell Thompson, Navarro Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Oct. 25, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter"). The Honorable R. Lowell Thompson - Page 2 (GA-092S) (1) the second Saturday in May in an odd-numbered year; (2) the second Saturday in May in an even-numbered year, for an election held by a political subdivision other than a county; or (3) the first Tuesday after the first Monday in November. TEX. ELEC. CODE ANN. § 41.001(a) (West Supp. 2011) (emphasis added). Subsection (b) describes seven situations to which subsection (a) does not apply. See id. § 41.001(b). None of these situations are applicable to an election in which voters determine whether to create an emergency services district. 2 Subsection (a)(l) of section 41.001 does not apply because calendar year 2012 is not an "odd-numbered year." Moreover, because an election to approve the creation of an emergency services district would be an election held by a county, subsection (a)(2) is also not applicable. See TEX. HEALTH & SAFETY CODE ANN. § 77S.018(a)(1)-(2) (West Supp. 2011) ("On the granting of a petition, the commissioners court shall order an election to confirm the district's creation .... "). Consequently, the next available date for holding the election at issue here is "the first Tuesday after the first Monday in November" of 2012, i.e., November 6, 2012, provided, of course, that such date "allows sufficient time to comply with other requirements of law," as required by subsection 77S.018(e) of the Health and Safety Code. 3 Id. § 77S.018(e). 2you appear to be most concerned about subsection (b )(6), which declares that subsection (a) is not applicable to "an election held under a statute that expressly provides that the requirement of Subsection (a) does not apply to the election." See TEX. ELEe. CODE ANN. § 41.001 (b)(6) (West Supp. 2011). However, nothing in chapter 775 of the Health and Safety Code "expressly provides" that the requirement of subsection (a) of section 41.001 ofthe Election Code "does not apply to the election." 3Although section 41.0052 of the Election Code permits certain governmental bodies to change the date of a general election, that provision specifically does not apply to counties. See § 41.0052(a). The Honorable R. Lowell Thompson - Page 3 (GA-092S) SUMMARY The next available date for holding an election to create an emergency services district in Navarro County is November 6,2012, provided that such date "allows sufficient time to comply with other requirements of law," as required by subsection 77S.018(e) of the Health and Safety Code. Very truly yours, Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127947/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 7,2012 The Honorable Harvey Hilderbran Opinion No. GA-0924 Chair, Ways and Means Committee Texas House of Representatives Re: Evidence that must be submitted with regard to Post Office Box 2910 an application for a residence homestead exemption Austin, Texas 78768-2910 under section 11.43, Tax Code (RQ-1008-GA) Dear Representative Hilderbran: You ask seven questions related to Tax Code section 11.43 and the items that must be included with an application for a residence homestead exemption. I Article Vill, section I-b, of the Texas Constitution and section 11.13 of the Tax Code authorize various types of political subdivisions to grant residence homestead exemptions from ad valorem taxation. TEX. CONST. art Vill, § I-b; TEX. TAX CODE ANN. § 11.13 (West 2008). Tax Code section 11.43 enumerates specific information and documentation that must be provided by an applicant seeking an exemption. 2 TEX. TAX CODE ANN. § 11.43 (West Supp. 2011). In relevant part, section 11.43 provides: (j) In addition to the items required by Subsection (f), an application for a residence homestead exemption prescribed by the comptroller and authorized by Section 11.13 must: (4) include a copy of the applicant's driver's license or state- issued personal identification certificate and: (A) a copy ofthe applicant's vehicle registration receipt; or JLetter from Honorable Harvey Hilderbran, Chair, House Comm. on Ways & Means, to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Oct. 19,2011), http ://www.texasattorneygeneral.gov/opin ("Request Letter"). 2The Eighty-second Legislature amended Tax Code section 11.43 to include additional documentation requirements to prove the existence of a residence homestead under Tax Code section 11.13. See Act of May 21,2011, 82d Leg., R.S., ch. 221 , §§ 1,3,2001 Tex. Gen. Laws 795, 795-96. The Honorable Harvey Hilderbran - Page 2 (GA-0924) (B) if the applicant does not own a vehicle, an affidavit to that effect signed by the applicant and a copy of a utility bill for the property subject to the claimed exemption in the applicant's name[.] (n) A chief appraiser may not allow an exemption provided by Section 11.13 unless: (1) the address on the driver's license or state-issued personal identification certificate provided by the applicant under Subsection (j) corresponds to the address on the applicant's vehicle registration receipt or utility bill provided under that subsection; and (2) the address indicated in Subdivision (1) corresponds to the address of the property for which the exemption is claimed.· [d. § 11.43(j)(4), (n)( 1)-(2) (West Supp. 2011). Because the answer to your first and second questions will depend, in part, on the answer to your third, we address that question at the outset. Your third question asks whether a driver's license, personal identification certificate or motor vehicle registration receipt issued by another state could be used to meet the requirements of section 11.43. Request Letter at 2. Subsection 11.43(f) explains that "'[d]river's license' has the meaning assigned that term by Section 521.001, Transportation Code," and "'[p]ersonal identification certificate' means a certificate issued by the Department of Public Safety." TEX. TAX CODE ANN. § 11.43(f) (West Supp. 2011). Transportation Code section 521.001 defines driver's license as "an authorization issued by the department for the operation of a motor vehicle," and it defines "[d]epartment" as "the Department of Public Safety." TEX. TRANSP. CODE ANN. § 521.001(a)(1-a), (3) (West Supp. 2011). For purposes of the Transportation Code, "'Department of Public Safety' means the Department of Public Safety of the State of Texas." [d. § 1.004 (West 2011). Thus, only a driver's license or personal identification certificate issued by this state may be used to meet the requirements of subsection 11.43(j)(4). Your third question also asks about a receipt for a motor vehicle registration issued by another state. Request Letter at 2. While subsection 11.43(j)(4) requires an applicant to produce a copy of a "vehicle registration receipt" or alternative documentation, section 11.43 does not further define vehicle registration receipt. TEX. TAX CODE ANN. § 11.43 (West Supp. 2011). However, as you explain in your letter to this office, the Legislature required that the owner of a motor vehicle apply for registration of a vehicle to the Department of Public Safety within thirty days of becoming a resident of this state. TEX. TRANSP. CODE ANN. § 502.040(a)-(b) (West SUpp. 2011). Once a vehicle is registered, the Department of Public Safety is required to issue a "registration receipt." ld. § 502.057. Given these requirements and the framework of subsection 11.43(j)(4), we believe The Honorable Harvey Hilderbran - Page 3 (GA-0924) the Legislature intended that an applicant include a copy of the applicant's vehicle registration receipt issued by this state to satisfy subsection 11.43(j)(4)(A). Returning to your first question, you ask whether "federal law permit[s] military personnel stationed in Texas to receive a residence homestead exemption in this state without the need of a Texas driver's license or Texas-issued identification card?" Request Letter at 2. Your second question relatedly asks whether "[i]n the case of a member of the military stationed in Texas, is a driver's license or identification issued by another state or by a federal agency showing the address for which a Texas homestead exemption is sought sufficient to meet the new requirements of Tax Code Section [11.43]." [d. As we discussed above, the Legislature requires that an individual produce a driver's license or personal identification certificate issued by this state in order to comply with subsection 11.43(j)(4). Further, your request letter does not cite any specific federal law that would allow military personnel to avoid compliance with the requirements of subsection 11.43(j)(4). While certain provisions of the federal Servicemembers Civil Relief Act ("SCRA") may provide some tax relief to military personnel, we find nothing in that Act or any other federal authority of which we are aware that would exempt military personnel from the requirements of subsection 11.43(j)(4). See SO App. U.S.c.A. §§ SOI-S97b (1990 & Supp. 2011). Your fourth question asks whether the chief appraiser may grant an exemption "if, due to the fact the property owner resides at an address to which mail is not delivered by the Post Office, the applicant submits a driver's license or state-issued identification card that bears a Post Office box address or 911 - Emergency Services Address?" Request Letter at 2. The Department of Public Safety's rules require that a "Texas residence address" be used for a driver's license or identification certificate, and the Department may require "proof satisfactory ... to establish the Texas residence provided." 37 TEX. ADMIN. CODE § IS.2S(1) (2011) (Tex. Dep't of Pub. Safety-Driver License Rules). The rules further state that "[i]fthere is no mail delivery at the [residence address], then a post office box number or other mailing address must be shown in conjunction with the Texas residence address provided." [d. § IS.2S(3) (emphasis added). A "post office box number may only be listed in addition to a Texas residence." [d. § IS.2S(6). Thus, the Department of Public Safety's rules prohibit the hypothetical you posit from occurring. Your fifth question asks, "[i]f the homestead exemption applicant is a non-documented alien who is in the United States illegally, may the chief appraiser grant a homestead exemption if the applicant can produce neither a driver's license or state-issued identification card bearing the applicant's name and address for which the exemption is sought?" Request Letter at 2. The Legislature has made it clear that in order to receive a homestead exemption, an applicant "must ... include a copy of the applicant's driver's license or state-issued personal identification certificate" along with the other required documentation. TEX. TAX CODE ANN. § 11.43(j)(4) (West Supp. 2011). Thus, the chief appraiser is prohibited from granting a homestead exemption to an individual who does not possess a driver's license or a state-issued identification certificate. Your final question asks, "[i]f the applicant submits a driver's license, state-issued identification card, or vehicle registration receipt which is expired, may the chief appraiser still grant The Honorable Harvey Hilderbran - Page 4 (GA-0924) the exemption application?" Request Letter at 2.3 The Transportation Code establishes when a driver's license, identification certificate or vehicle registration expires. 4 However, it does not define the term "expired," and we therefore construe the term according to its plain and common meaning. Iliffv. Iliff, 339 S.W.3d 74, 79 (Tex. 2011). The common definition of "expire" is to "cease to be valid." NEW OXFORD AMERICAN DICTIONARY 598 (2001). When a document is no longer valid, it may not be used as current proof ofthe fact for which it is purportedly being used. Thus, the chief appraiser may not grant an exemption based on an expired driver's license, state-issued identification certificate or vehicle registration receipt. 5 3We note that a statutory exception exists for certain military personnel. "[A] driver's license issued by this state that is held by a person who is on active duty in the armed forces of the United States and is absent from this state, notwithstanding the expiration date of the license, remains valid while the person is absent from this state." TEX. TRANSP. CODE ANN. § 521.028(a) (West 2007). Thus, nothing in this opinion should be construed as precluding active duty military personnel absent from this state from using an expired license to comply with Tax Code section 11.43. 4See id. §§ 521.101 (f) (West Supp. 2011) (explaining that the Department of Public Safety determines the date on which personal identification certificates expire), .271 (explaining general expiration of driver's license), .2711 (explaining expiration of driver's license for individuals over age 85); see also 37 TEX. ADMIN. CODE § 15.30(a) (2011) (Tex. Dep't of Pub. Safety-Identification Certificates) (explaining expiration of personal identification certificates). 5Your sixth question asks, "[i]f the homestead exemption applicant has an expired Texas Driver's License, but no registered vehicle in his/her name and their utilities are in the name of a relative, may the chief appraiser grant the exemption?" Request Letter at 2. Because we conclude that an expired driver's license may not be used to obtain an exemption, we need not further address this question. The Honorable Harvey Hilderbran - Page 5 (GA-0924) SUMMARY Only a driver's license, personal identification certificate or vehicle registration receipt issued by this state may be used to meet the requirements of Tax Code subsection 11.43U)(4). We do not find any federal authority that would exempt military personnel from compliance with the documentation requirements of Tax Code subsection 11.43(j)(4). The Legislature has prohibited a chief appraiser from granting a homestead exemption to an individual that does not possess a driver's license or a state-issued identification certificate. A chief appraiser may not grant a residence homestead exemption based on an expired driver's license, state-issued identification certificate or vehicle registration receipt. Very truly yours, DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Virginia K. Hoelscher Assistant Attorney General, Opinion Committee

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02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127880/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT July 31,2012 Mr. J ody Anderson, President Opinion No. GA-0959 Angelina & Neches River Authority Post Office Box 387 Re: Whether a local election under section 1502.055, Lufkin, Texas 75902 Government Code, is required before a municipality may sell its sewage collection system and treatment plant to a river authority: Possible conflict with chapter 30, Water Code (RQ-I041-GA) Dear Mr. Anderson: You ask about the application of chapter 30 of the Water Code and its relationship to section 1502.055 of the Government Code. l As background, you tell us that the City of Huntington ("City") and the Angelina & Neches River Authority ("ANRA") are in negotiations regarding the sale of the City's sewage collection system and treatment plant. See Request Letter at 1. You state that the City "wishes to sell these assets to ANRA and have ANRA operate and maintain the sewage treatment and collection system." Id. You indicate that the "City has expressed concerns that [section] 1502.055 requires that [a] local election be held whereby the sale of the treatment plant and the collection system is approved, or rejected, by the voters." Id. You argue, however, that chapter 30 of the Water Code permits the sale without an election. See id. at 1,3. You thus seek our opinion on whether, in light of section 30.035 of the Water Code, an election is necessary for a municipality to sell its sewage collection system and treatment plant. See id. at 3. Subsection 1502.055(a) of the Government Code provides that "[u]nless authorized by a majority vote of the qualified voters of the municipality, a municipality may not sell a utility system,2 park, or pool." TEX. GOV'T CODE ANN. § 1502.055(a) (West Supp. 2011) (footnote added). Subsection 1502.055(a) thus makes a municipality's authority to sell its utility system contingent upon a successful election. See Radford v. City of Cross Plains, 86 S.W.2d 204,205 (Tex. 1935) (reco gnizing that an action taken under the purview of subsection 1502.055 (a)' s predecessor wi thout an election is void). ISee Letter from Mr. lody Anderson, President, Angelina & Neches River Auth., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Feb. 8,2012), http://www.texasattorneygeneral.gov/opin ("Request Letter"). 2A "utility system" is "an electric, water, sewer, solid waste disposal, drainage utility, or natural gas system." TEX. GOV'T CODE ANN. § 1502.001(3) (West 2000). We assume for purposes of this opinion that the City's sewage collection system and treatment plant is a utility system. Mr. Jody Anderson - Page 2 (GA-0959) Chapter 30 of the Water Code is the Regional Waste Disposal Act, and its stated purpose is "to authorize public agencies to cooperate for the safe and economical collection, transportation, treatment, and disposal of waste in order to prevent and control pollution of water in the state." TEX. WATER CODE ANN. §§ 30.001 (West 2008) (providing short name), .002 (stating purpose). Section 30.035 provides that "[n]o election is required for the exercise of any power under this chapter except for" a provision unrelated to your question. /d. § 30.035. Thus, by its terms, section 30.035 of the Water Code eliminates the need for an election in connection with the exercise of any power granted in chapter 30. See id.; see also id. § 30.004(b) (providing that "[n]o other law or charter provision which limits, restricts, or imposes additional requirements on matters authorized by this chapter shall apply to any action or proceeding under this chapter unless expressly provided to the contrary in this chapter"), R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011) ("We ordinarily construe a statute so as to give effect to the Legislature's intent as expressed in its plain language."). The powers enumerated in chapter 30 are granted primarily to districts. 3 For example, chapter 30 authorizes a district to "acquire, ... operate, and maintain one or more disposal systems." TEX. WATER CODE ANN. § 30.021 (West 2008). And a district "may contract ... to purchase or sell ... any waste collection, transportation, treatment, or disposal facilities or systems." [d. § 30.022. However, some authority in chapter 30 is granted to a public agency, which includes a municipality. See id. § 30.003(3) (defining "public agency" to include "any district, city,4 or other political subdivision or agency of the state which has the power to own and operate waste collection, transportation, treatment, or disposal facilities or systems") (footnote added). "A public agency may make contracts with a district under which the district will make a disposal system5 available to the public agency and will furnish waste collection, transportation, treatment, and disposal systems to the public agency .... " [d. § 30.027 (footnote added). In addition, the contract under section 30.027 may provide for the "sale or lease to or use by a district of all or part of a disposal system owned or to be acquired by the public agency." [d. § 30.028(a)(4). Reading these provisions together, we believe chapter 30 grants a municipality the specific authority to sell its disposal system to a district. And pursuant to section 30.035, it may do so without an election. See id. § 30.035. Yet an election prior to any sale of a municipality's utility system is exactly what is required under section 1502.055 of the Government Code. Thus, the two provisions appear to conflict. 3A "district" for purposes of chapter 30 is "any district or authority created and existing under Article XVI, Section 59 or Article III, Section 52 of the Texas Constitution, including any river authority." TEX. WATER CODE ANN. § 30.003(2) (West 2008); see also TEX. SPEC. DIST. CODE ANN. §§ 8501.051 (West 2011) (creating ANRA as a conservation and reclamation district), 8501.151(1) (granting ANRA powers of a conservation and reclamation district, including powers expressly authorized in Section 59, Article XVI, Texas Constitution). 4A '''city' means any incorporated city or town, whether operating under general law or under its home-rule charter." TEX. WATER CODE ANN. § 30.003(1) (West 2008). 5 A "disposal system" is "any system for disposing of waste, including sewer systems and treatment facilities." !d. § 30.003( 10). Again, for purposes of this opinion, we assume the City's sewage collection system and treatment plant is a disposal system under chapter 30. Mr. lody Anderson - Page 3 (GA-0959) When two statutes appear to conflict, courts seek to harmonize them so that all provisions are fully effective. See La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558,565 (Tex. 1984) ("Generally, courts are to construe statutes so as to harmonize with other relevant laws, if possible."). Conflicting statutes can often be reconciled by reading the more specific statute as an exception to the more general one. See City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008). "In such circumstances, the special provision or statute is regarded as though it were an exception, removing something from the operation of general law." Brazoria Cnty. v. Tex. Comm 'n on Envtl. Quality, 128 S.W.3d 728, 738 (Tex. App.-Austin 2004, no pet.) (citing Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948)). These two provisions can be harmonized if section 30.035, as it pertains to a municipality's disposal system, is treated as a specific exception to the general rule in subsection 1502.055(a). In other words, a municipality must generally conduct an election prior to selling a utility system, unless the municipality is selling a disposal system to a district as provided by sections 30.027 and 30.028(a)(4) of the Water Code, in which case an election is not required. Moreover, such a harmonized construction of the two provisions comports with the purpose of chapter 30 of the Water Code, which is to promote cooperation among public agencies for the efficient treatment and disposal of waste in the state. See TEX. WATER CODE ANN. § 30.002 (West 2008) (stating purpose of the Regional Waste Disposal Act); see also id. § 30.004(b) (providing that "[n]o other law or charter provision which limits, restricts, or imposes additional requirements on matters authorized by this chapter shall apply to any action or proceeding under this chapter unless expressly provided to the contrary in this chapter"). Thus, we conclude that a municipality must generally hold an election pursuant to subsection 1502.055(a) of the Government Code before selling a utility system. However, by virtue of section 30.035 of the Water Code, no such election is required when a municipality sells a disposal system to a river authority under chapter 30 of the Water Code. Mr. Jody Anderson - Page 4 (GA-0959) SUMMARY Generally, a municipality must hold an election pursuant to subsection 1502.055(a) of the Government Code before selling a utility system. However, by virtue of section 30.035 of the Water Code, no such election is required when a municipality sells a disposal system to a river authority under chapter 30 of the Water Code. Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT 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/4127890/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 94-809 of : : May 18, 1995 DANIEL E. LUNGREN : Attorney General : : MAXINE P. CUTLER : Deputy Attorney General : : ______________________________________________________________________________ THE HONORABLE SAL CANNELLA, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion of the following questions: 1. When a local agency requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of property, may the agency impose, as a condition of tentative map approval, the installation of irrigation facilities prior to approval of the parcel map? 2. When a local agency requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of property, may the agency impose, as a condition of map approval, that an agreement be reached between the subdivider and an irrigation district regarding the timing of the installation of irrigation facilities? CONCLUSIONS 1. When a local agency requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of property, the agency may not impose, as a condition of tentative map approval, the installation of irrigation facilities prior to approval of the parcel map. 2. When a local agency requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of property, the agency may not impose, as a condition of tentative map approval, that an agreement be reached between the subdivider and an irrigation district regarding the timing of the installation of irrigation facilities. 1. 94-809 ANALYSIS The Subdivision Map Act (Gov. Code, '' 66410-66499.37; "Act") 1 regulates the manner in which an owner of a contiguous block of land may subdivide or convey portions of the property. (John Taft Corp. v. Advisory Agency (1984) 161 Cal. App. 3d 749, 755.) The Act establishes general "statewide criteria for land development planning, and delegates authority to cities and counties to regulate the details of subdivisions." (Benny v. City of Alameda (1980) 105 Cal. App. 3d 1006, 1010.) Its purposes are to "facilitate orderly community development by regulating and controlling the design and improvement of subdivisions and to protect the buying public from exploitation" (South Central Coast Regional Com. v. Charles A. Pratt Construction Co. (1982) 128 Cal. App. 3d 830, 845), as well as to "assure proper improvements are made so the area does not become an undue burden on the taxpayer" (Bright v. Board of Supervisors (1977) 66 Cal. App. 3d 191, 194). Generally a subdivision may be created only by first obtaining local (city or county) approval of a "final map" (' 66426 [five or more parcels]) or a "parcel map" (' 66428 [four or fewer parcels]) filed with the county recorder ('' 66411.1, 66468). While the filing of a "tentative map" (' 66424.5) is normally only required prior to the filing of a final map ('' 66456-66457), the local agency has the discretion to require preparation of a tentative map prior to the recordation of a parcel map for divisions of four or fewer parcels. "Local ordinances may require a tentative map where a parcel map is required by this chapter." (' 66428.) To obtain approval of the requisite map, the subdivider may be required to fulfill certain conditions imposed by the local agency. The two questions presented for resolution concern the provisions of section 66411.1, which states: "(a) Notwithstanding Section 66428, whenever a local ordinance requires improvements for a division of land which is not a subdivision of five or more lots, the regulations shall be limited to the dedication of rights-of-way, easements, and the construction of reasonable offsite and onsite improvements for the parcels being created. Requirements for the construction of offsite and onsite improvements shall be noticed by a statement on the parcel map, on the instrument evidencing the waiver of the parcel map, or by a separate instrument and shall be recorded on, concurrently with, or prior to the parcel map or instrument of waiver of a parcel map being filed for record. "(b) Notwithstanding Section 66428, fulfillment of the construction requirements shall not be required until the time a permit or other grant of approval for development of the parcel is issued by the local agency or, where provided by local ordinances, until the time the construction of the improvements is required pursuant to an agreement between the subdivider and the local agency, except that in the absence of 1 All section references are to the Government Code unless otherwise indicated. 2. 94-809 an agreement, a local agency may require fulfillment of the construction requirements within a reasonable time following approval of the parcel map and prior to the issuance of a permit or other grant of approval for the development of a parcel upon a finding by the local agency that fulfillment of the construction requirement is necessary for either of the following reasons: "(1) The public health and safety. "(2) The required construction is a necessary prerequisite to the orderly development of the surrounding area." We are informed that a property owner intends to subdivide 80 acres of rural land into four equal parcels. The county requires a tentative map for such a subdivision. The 80 acres is served by an irrigation canal on one side. If the new parcels are configured parallel to the canal, another canal running perpendicular to the first will be necessary to reach the other three new parcels. Under the terms of section 66411.1, when may the county require the construction of the perpendicular canal? 1. Requiring Installation of Improvements Prior to Parcel Map Approval In 62 Ops.Cal.Atty.Gen. 175 (1979), we concluded that a local agency could not require construction of offsite or onsite improvements to be completed prior to approval of a parcel map. We stated: "The first question concerns whether a local agency can require that improvements in . . . smaller subdivisions [of four or fewer parcels] be completed prior to the recordation of the appropriate map. Since sale of the parcels is generally dependent upon recordation of the map (' 66499.30, subd. (b)), such a requirement would insure that the improvements were made before sale. On the other hand, it may be argued that the landowner should not be required to make the necessary improvements until he is ready to develop the property. Based upon an examination of the controlling statute, section 66411.1, we conclude that completion of the improvements may not be required prior to the recordation of the parcel map. "Section 66411.1 provides that in divisions of land into four or less parcels, the improvements required by local ordinance must be limited to `the dedication of rights-of-way, easements, and the construction of reasonable offsite and onsite improvements for the parcels being created.' Under the statute, notification of the construction requirements must be `by certificate on the parcel map, on the instrument evidencing the waiver of such parcel map, or by separate instrument and shall be recorded on, concurrently with, or prior to the parcel map or instrument of waiver of a parcel map being filed for record.' "Although the improvements can be specified and their description recorded prior to the recordation of the appropriate parcel map, the Legislature has further provided in the statute that: 3. 94-809 "`Fulfillment of such construction requirements shall not be required until such time as a permit or other grant of approval for development of the parcel is issued by the local agency or, where provided by local ordinances, until such time as the construction of such improvements is required pursuant to an agreement between the subdivider and the local agency, except . . . that in the absence of such an agreement, a local agency may require fulfillment of such construction requirements within a reasonable time following approval of the parcel map and prior to the issuance of a permit or other grant of approval for the development of a parcel upon a finding by the local agency that fulfillment of the construction requirements is necessary for reasons of . . . public health and safety; or . . . orderly development of the surrounding area.' (Emphasis added.) ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ". . . [W]e construe section 66411.1 as allowing a local agency to require the completion of the necessary improvements within a reasonable time after the parcel map has been approved if no agreement has been reached setting an earlier date of completion pursuant to a duly adopted ordinance authorizing such agreements." (Id., at pp. 177-178; fn. omitted.) The only significant difference between the present inquiry and our 1979 opinion is that here the local agency has required the filing of a tentative map in addition to the filing of a parcel map. How does this fact affect our prior conclusion? We believe that whatever argument could once have been made regarding the authority of a local agency to approve a tentative map, the recent amendment of section 66411.1 disposes of such argument when dealing with subdivisions of four or fewer parcels. In 1994, section 66411.1 was amended (Stats. 1994, ch. 655, ' 1) to add the phrase "Notwithstanding Section 66428" in both subdivisions (a) and (b). Such language makes the limitation provisions of section 66411.1 controlling over the terms of section 66428. (See People v. Superior Court (Hubbard) (1991) 230 Cal. App. 3d 287, 296; In re Marriage of Dover (1971) 15 Cal. App. 3d 675, 678, fn. 3; State of California v. Superior Court (1965) 238 Cal. App. 2d 691, 695; 76 Ops.Cal.Atty.Gen. 4, 7 (1993).) Consistent with this interpretation is the legislative history of the 1994 amendment of section 66411.1. In the report on the Assembly Committee on Local Government dated April 20, 1994, the proposed legislation is described in part as: "Provides that the restriction of parcel map improvements . . . apply notwithstanding the authority for local governments to require a tentative map when a parcel map is required . . . ." Similarly in the report of the Assembly Committee on Ways and Means dated May 18, 1994, it is stated that the statutory amendment is to provide "that the restriction on improvements shall apply notwithstanding the authority for local governments to require a tentative map . . . ."2 2 "Statements in legislative committee reports concerning the statutory purposes which are in accordance with a reasonable interpretation of the statute will be followed by the courts. It will be presumed that the Legislature adopted the 4. 94-809 Accordingly, even though a local agency may require the filing of a tentative map under the terms of section 66428, the agency may not circumvent the limitations contained in section 66411.1 governing "a division of land which is not a subdivision of five or more lots." One such statutory limitation 3 is: "fulfillment of the construction requirements shall not be required until the time a permit or other grant of approval for the development of the parcel is issued by the local agency" unless there is an agreement with the subdivider; a finding of necessity due to public health and safety or orderly development of the surrounding area allows the local agency to require construction only "within a reasonable time following approval of the parcel map." We conclude in answer to the first question that when a local agency requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of property, the agency may not impose, as a condition of tentative map approval, the installation of irrigation facilities prior to approval of the parcel map. 2. Requiring Installation of Improvements By Agreement As indicated in response to the first question, a subdivider may agree to construct onsite and offsite improvements under the terms of section 66411.1. Such an agreement might specify that the improvements are to be constructed at a particular time, including prior to the approval of the parcel map. Does section 66411.1 allow the local agency to require such an agreement between the subdivider and a water district for the construction of irrigation facilities? We conclude that it does not. We are to interpret statutes so as to "effectuate legislative intent." (Burden v. Snowden (1992) 2 Cal. 4th 556, 562.) "In determining intent, we look first to the language of the statute, giving effect to its `plain meaning.'" (Kimmel v. Goland (1990) 51 Cal. 3d 202, 208.) "If a statute's language is clear, then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs." (Kizer v. Hanna (1989) 48 Cal. 3d 1, 8.) An "agreement" is commonly defined as "the act of agreeing or coming to a mutual arrangement . . . harmonious understanding . . . ." (Webster's Third New Internat. Dict. (1971) p. 43.) The term is not ordinarily understood to involve involuntary or forced consent. We find nothing in the statute suggesting that a local agency may impose an agreement upon a subdivider. Indeed, the language supports the contrary conclusion by indicating the course of action a local agency may take if an agreement cannot be reached with the subdivider ("in the absence of an agreement, a local agency may . . . ."). proposed legislation with the intent and meaning expressed in committee reports." (In re Marriage of Paddock (1971) 18 Cal. App. 3d 355, 359; accord, O'Brien v. Dudenhoeffer (1993) 16 Cal. App. 4th 327, 334.) 3 Other limitations contained in section 66411.1 are not within the scope of this opinion, such as the requirement that the offsite and onsite improvements be "reasonable." 5. 94-809 The legislative history of section 66411.1's most recent amendment in 1994 supports the determination that an agreement may not be forced upon the subdivider. The report of the Senate Committee of Local Government dated July 6, 1994, indicates that "[c]onstruction of improvements are not required until development of the property, unless the city or county determines they are necessary because of health and safety reasons." No suggestion is contained in the committee reports that a local agency may require construction of improvements by imposing an agreement upon the subdivider. In 71 Ops.Cal.Atty.Gen. 344, 346-349 (1988), we concluded that a city and a county were not required to reach an agreement regarding the transfer of property tax revenues in a city annexation proceeding, since the statute in question only required them to "commence negotiations." Here, under the terms of section 66411.1, the Legislature has not even required negotiations. In answer to the second question, therefore, we conclude that when a local agency requires the filing of a tentative map in addition to a parcel map with respect to the subdivision of property, the agency may not impose, as a condition of tentative map approval, that an agreement be reached between the subdivider and an irrigation district regarding the timing of the installation of irrigation facilities. ***** 6. 94-809

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127894/

ATTORNEY GENERAL OF TEXAS GREG ABBOTT June 18,2012 The Honorable Chris Martin Opinion No. GA-0952 Van Zandt County Criminal District Attorney 400 South Buffalo Re: Final authority to set the salary of the official Canton, Texas 75103 court reporter in the Van Zandt County Court at Law, and to determine whether the position is full-time or part-time (RQ-1039-GA) Dear Mr. Martin: You ask who has the final authority to set the salary of the official court reporter in the Van Zandt County Court at Law. 1 You also ask who has the authority to determine whether the position is full-time or part-time. Request Letter at 1. Your question concerns the county court at law's enabling statute, which provides in part that "[t]he official court reporter of a county court at law is entitled to receive a salary set by the judge of the county court at law with the approval of the commissioners court." TEX. GOy'T CODE ANN. § 25.2362(g) (West Supp. 2011). You indicate that the commissioners court views its authority to "approve" the reporters salary pursuant to section 25.2362 of the Government Code as equivalent to its general fiscal authority to "set the amount ofthe compensation, office and travel expenses, and all other allowances for county and precinct officers and employees who are paid wholly from county funds." TEX. LoC. GOy'T CODE ANN. § 152.011 (West 2008); Request Letter at 2-3. When Texas courts construe a statute, they attempt to give effect to the Legislature's intent as expressed in the plain language of the statute. R.R. Comm 'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011). A statutory provision should not be construed in isolation, but instead must be read in the context of the statutory scheme. See Tex. Workers' Compo Ins. Fund V. Del Indus., Inc., 35 S.W.3d 591,593 (Tex. 2000). Rather than create a uniform plan for all statutory county court reporters, the Legislature has addressed the compensation of court reporters in the enabling legislation specifically applicable to particular statutory county courts. See TEX. GOY'T CODE ANN. ch. 25 ("Statutory County Courts"), subch. C ("Provisions Relating to Particular Counties") (West 2004 & Supp. 2011). For example, ISee Letter from Honorable Chris Martin, Van Zandt Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Jan. 31,2012), http://www.texasattorneygenera1.gov/opin ("Request Letter"). The Honorable Chris Martin - Page 2 (GA-0952) the statutes governing the compensation of some statutory county court reporters state that the commissioners court sets the salary and do not expressly give the applicable county court at law judge a role. See id. §§ 25.0312(g) (Calhoun County Court at Law); 25.0932(k) (County Court at Law No.2 of Grayson County); 25. 1792(k) (Nolan County Court at Law) (West Supp. 2011). For other statutory county courts, the applicable provision states that the judge sets the salary and the commissioners court has a statutory duty to issue an order that effectuates payment of the court reporter. See id. §§ 25.1102(f) (Hidalgo County Court at Law); 25.1152(g) (Houston County Court at Law); 25.1762(g) (Nacogdoches County Court at Law). Still other statutes, such as the one applicable to the Van Zandt County Court at Law, provide that the judge sets the reporter's salary with the approval ofthe county's commissioners court. See id. §§ 25.1 182(g) (Hunt County Court at Law); 25.1772(g) (Navarro County Court at Law); 25.2362(g) (Van Zandt County Court at Law). Section 25.2362 requires the judge of the Van Zandt County Court at Law to set the official court reporter's salary and the commissioners court to approve the reporter's salary, which indicates that the court reporter's salary should reflect a collaborative-rather than unilateral-decision. Id. § 25.2362(g). The statute's language plainly requires action by both the county court at law judge and the commissioners court but does not indicate the bounds of authority for either the judge or the commissioners court. We are not aware of any judicial opinions that address a substantially similar grant of authority to ajudge to set an official court reporter's salary with the commissioners court's approvaU The grant of authority to approve a salary, in itself, suggests that the commissioners court has some discretion to withhold its approval. See Vitopil v. Ware, 280 S.W.2d 378,379-80 (Tex. Civ. App.-Waco 1955, no writ) (concluding a statute requiring the commissioner court's "consent and approval" of salary increases set by a district judge authorized the commissioners court to refuse to give its approval). However, in light of the statutory scheme in chapter 25, subchapter C, we do not believe the Legislature intended to give the Van Zandt County Commissioners Court the authority to disregard the judge's action and unilaterally set the salary of the official statutory county court reporter. Had the Legislature intended the judge or the commissioners court to have the sole authority to determine the reporter's salary, it could have written the statute to say so. Because the relevant statute does not grant unilateral authority to one entity or the other, we cannot advise you that either the judge or the commissioners court has ultimate, independent authority to establish the county court at law reporter's salary. However, it is virtually impossible 2Although we have received briefing urging that the authority of either the judge or the commissioners court to establish a court reporter's salary is paramount, none of the cited judicial opinions concerns a grant of authority substantially similar to that in section 25.2362 of the Government Code. See, e.g., Duncan v. Pogue, 759 S.W.2d 435, 435 (Tex. 1988) (concerning section 52.051 of the Government Code, generally applicable to district court reporters, which requires commissioners court approval only when the judge orders a pay increase in excess of ten percent); Comm'rs Court of Caldwell Cnty. v. Criminal Dist. Attorney, 690 S.W.2d 932,939 (Tex. App.-Austin 1985, writ ref'd n.r.e.) (concerning authority of the commissioners court to adjust the salary of an assistant "fixed" by the district attorney in the county budgeting process); Comm'rs Court of Lubbock Cnty. v. Martin, 471 S.W.2d 100, 107 (Tex. Civ. App.-Amarillo 1971, writ ref'd n.r.e.) (concerning the district judge's authority to set probation department personnel salary "with the advice and consent" of the commissioners court). The Honorable Chris Martin - Page 3 (GA-0952) for a county court at law to function as a court of record without the services of a court reporter. Further, as a judge of a court of record, the Van Zandt County Court at Law judge is required by statute to appoint an official court reporter. TEX. GOy'T CODE ANN. § 52.041 (West 2005). Moreover, the enabling statute for the Van Zandt County Court at Law provides that the official court reporter is "entitled to receive a salary." [d. § 25.2362(g) (West Supp. 2011). Thus, in the absence of a clear statutory standard, a reviewing court would likely construe that statute as entitling the court reporter to receive a reasonable salary. See Vondy v. Comm'rs Court of Uvalde Cnty., 620 S.W.2d 104, 108-09 (Tex. 1981) (determining that constitutional provision that a constable holds a salaried position means that the constable is entitled to a reasonable salary). Consequently, regardless of the commissioners court's authority to approve the salary of the official court reporter for the county court at law, a court would likely conclude that the county is required to provide the court reporter with a reasonable salary. We now consider your second question. You ask whether the county court at law judge or the commissioners court has paramount authority to decide whether the position of official court reporter is to be full- or part-time. Request Letter at 1. First, we observe that the statutes concerning the compensation of county court at law reporters do not distinguish between full- and part-time positions. Some statutes grant a court or commissioners court the option of contracting for a court reporter's services rather than appointing an official court reporter to a salaried position. See, e.g., TEX. GOY'T CODE ANN. §§ 25.0042(h) (giving the judge of Anderson County Court at Law the option of contracting for a reporter's services); 25 .1412(g) (granting the judge of the Lamar County Court at Law the option of contracting for a reporter's services); 25.l792(k) (granting the commissioners court for Nolan county the option of contracting for the services of a reporter for the county court at law) (West Supp. 2011). The statute that governs the Van Zandt County Court at Law only authorizes the appointment of an official reporter to a salaried position. [d. § 25.2362(g). Second, an official court reporter appointed by a judge of a county court at law serves at the pleasure of the county court at law judge. TEX. GOy'T CODE ANN. § 52.041 (West 2005). As this office has previously explained, "court reporters serve the judges who appoint them, rather than work traditional 40-hour-per-week jobs; their jobs are described in terms of the tasks or duties to be performed, not the number of required hours." Tex. Att'y Gen. Op. No. GA-0164 (2004) at 7. Because a court reporter serves at the pleasure of the county court at law judge, the reporter's hours of work are largely a matter of the judge's discretion. [d. 3 The commissioners court's fiscal authority does not allow it to "second-guess a county officer's use of county employees to accomplish the officer's constitutional or statutory duties." Tex. Att'y Gen. Op. No. JC-0239 (2000) at 5. Accordingly, the Commissioners Court of Van Zandt County does not have the authority to limit the hours of work of the reporter of the Van Zandt County Court at Law. 30 pinions of this office have observed that the position of official court reporter need not necessarily be full- time because court reporters typically serve as needed by the judge who appoints them rather than work a traditional 40- hour-per weekjob. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0372 (2005) at 3-4; GA-Ol64 (2004) at 7; GA-0155 (2004) at 6. No opinion, however, has suggested that any entity other than the judge served by the reporter may determine the reporter's hours of work. The Honorable Chris Martin - Page 4 (GA-09S2) SUMMARY The judge of the Van Zandt County Court at Law is authorized to appoint an official court reporter and set the reporter's salary with approval of the commissioners court. The judge of the Van Zandt County Court of Law has exclusive authority to control the official court reporter's hours of work. Under section 2S.2362(g) of the Government Code, neither the judge of the Van Zandt County Court at Law nor the Commissioners Court has exclusive authority to set the salary of the official court reporter. The Commissioners Court's authority to approve the salary of the County Court at Law court reporter does not include the authority to unilaterally set the reporter's salary. A reviewing court would likely conclude that Van Zandt County is required to provide the official court reporter for the County Court at Law a reasonable salary. Very truly yours, DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee William A. Hill Assistant Attorney General, Opinion Committee

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127898/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 95-203 of : : May 12, 1995 DANIEL E. LUNGREN : Attorney General : : ANTHONY S. Da VIGO : Deputy Attorney General : : ______________________________________________________________________________ The City of Modesto has requested this office to grant leave to sue in quo warranto upon the following: ISSUE OF FACT OR LAW Does reasonable cause exist to believe that Richard Patterson, a member of the City Council of the City of Modesto, will not be able to perform the duties of his office for the remainder of his term because of physical or mental incapacity? DISPOSITION Reasonable cause exists to believe that Richard Patterson will be unable to perform the duties of his office for the remainder of his term as a member of the City Council of the City of Modesto because of physical or mental incapacity. Accordingly, leave to sue in quo warranto is GRANTED. THE PARTIES The City of Modesto ("relator") 1 contends that Richard Patterson ("defendant") has vacated his office as a member of the City Council of the City of Modesto due to physical incapacity. 1 We have previously determined that a public agency may act as a relator under the provisions of Code of Civil Procedure section 803. (76 Ops.Cal.Atty.Gen. 157, 163 (1993).) 1. 95-203 MATERIAL FACTS On November 2, 1993, defendant was elected to the City Council of the City of Modesto for a term of four years. Defendant assumed his duties of office on November 9, 1993, and continued to serve in that capacity until December 26, 1993, when he suffered a severe stroke. While defendant's condition has continued to improve, he has not attended or performed any public duties since the onset of his illness, and continues to be disabled from doing so due to medical incapacity. Prospectively, defendant offers no indication as to when he might be able to return to his duties as a council member. ANALYSIS A charter city is governed by the terms of its charter with respect to such matters as the appointment, election, compensation, and removal of its officers and employees. (See Cal. Const., art. XI, ' 5; Ector v. City of Torrance (1973) 10 Cal. 3d 129, 132-133; Pearson v. County of Los Angeles (1957) 49 Cal. 2d 523, 533-537; 64 Ops.Cal.Atty.Gen. 42, 43-45 (1981).) Hence, the conditions under which a vacancy is created in an office of a charter city depends upon the language of the city's charter. Here, the charter of the City of Modesto provides that Government Code section 1770 shall govern the existence of a vacancy on the city council. (Modesto Charter, ' 502.) Government Code section 1770 provides in part as follows: "An office becomes vacant on the happening of any of the following events before the expiration of the term: "(a) The death of the incumbent. "(b) An adjudication pursuant to a quo warranto proceeding declaring that the incumbent is physically or mentally incapacitated due to disease, illness, or accident and that there is reasonable cause to believe that the incumbent will not be able to perform the duties of his or her office for the remainder of his or her term . . . ." The phrase "reasonable cause to believe" has not been expressly defined by the Legislature for purposes of section 1770. In the criminal law context, however, we note that reasonable cause to believe that the accused has committed a crime, as a basis for an arrest, does not require certainty beyond doubt, but only that a person of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty of a crime. (People v. Turner (1994) 8 Cal. 4th 137, 195; Mann v. Macy (1984) 155 Cal. App. 3d 666, 674.) In the civil law context, it is to be observed that a cause of action may not be filed for civil conspiracy under the provisions of Civil Code section 1714.10 unless the party making the claim 2. 95-203 has established that there is a "reasonable probability" that the party will prevail in the action. In Burtscher v. Burtscher (1994) 26 Cal. App. 4th 720, 725-726, the court recently analyzed this statutory requirement: "To start, we reject defendants' contention that establishing a `reasonable probability' under the statute goes beyond a prima facie case . . . . Hung v. Wang (1992) 8 Cal. App. 4th 908, interprets `reasonable probability' under section 1714.10 to mean only a prima facie showing. In the court's words: `As we construe section 1714.10, the trial court may not make findings as to the existence of facts based on a weighing of competing declarations. Whether or not the evidence is in conflict, if the petitioner has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the trial court must grant the petition.' ([Id.] at pp. 933-934.) In Aquino v. Superior Court (1994) 21 Cal. App. 4th 847, we adopted the same approach in interpreting `substantial probability' under Code of Civil Procedure section 425.13 to require only a prima facie showing of plaintiff's entitlement to punitive damages. (Id. at pp. 854-856.) "In making such prepleading determinations, the trial court is not weighing conflicting evidence, determining credibility or drawing inferences. It is performing a `gatekeeping' function, filtering out frivolous allegations of conspiracy but without subjecting them to the `fact adjudicative screen' that would violate the right to a jury trial. ([Id.] at p. 856; Hung v. Wang, supra, 8 Cal.App.4th at p. 931.) . . . ." In our view, relator has made a prima facie case, whether considered independently or in conjunction with such controverting evidence as has been submitted in connection with this proceeding. Indeed, defendant has been unable to file a declaration on his own behalf in this matter; a spokesperson confirms that defendant has been unable to return to his official duties since he became ill and that he continues to be disabled. Defendant presents no indication as to the date when he might be able to return to his duties of office as a council member. While the circumstances of defendant's ill health are manifestly unfortunate, and notwithstanding his strong desire to serve the citizens of the City of Modesto, we find that relator has presented a substantial issue of fact or law, by way of the verified declarations of the mayor, city manager, and city clerk, as to the basis for and existence of reasonable cause to believe that defendant will not be able to perform the duties of his office for the remainder of his term. PUBLIC INTEREST Both the City of Modesto, as a public entity, and the city's residents have an interest in the timely and effective execution of the public duties of all city officers and employees. We find no countervailing considerations in the facts or circumstances presented by defendant that would warrant delay in instituting a quo warranto proceeding. The public interest in granting leave to sue is thus statutorily (Gov. Code, ' 1770, subd. (b)) and factually supported. ***** 3. 95-203

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: : . . I.’ .  93 EM. b;. 0. carlwl,yTn~ 8 fbo ~olonoio~ Go&. The Qheleqea OS the Cowoleelonore' Oourt ~1oo.Q the ruttar of looopt- lng ona or thablQ0 to 8 rok ot the oourt. Two ti tha ~.mioelonon +otod to looopt that $%d.oni 6 ilk. n.mb.r rotad njoot tha bil.. to :Tho Oh.ir- aan of ohm ocmleolonore’ hut ntpro4 to rob and bnak fho dseb-look n tlo v&o, .nd tho rut- tar of looopt* o& &08* tM ?Oaalniae fo0r (4) bid. woe nner &blood kforo th el.ur8. Tho ouwalulonare' lo u r no t lthl qeo r.o p to a 4o z r o lo %ea 0r fho othar bihr, by rot. any m0d7 .d We sail0af0 l0t upon r.galer a thti. mooting of the T h Qoo l aurjs Of tho o..r t Mm.h tom wlth.ut oq o z- ilnr l motion up o l n# o ?th e wa r r ub dtta a . wan the a.s!nleelo.ore’ with one of tbeo tfddor8 ot ~ottrt,1t t&g aeferalM4 ot tllo oourt that Lo10116x10ie tbn lowoPt al& beet bl&der, OR must the Codeolouere~ Gowt a@n edro,rtieu jy, bide in crder to Obmply with Arti.1. 15599* Artlol. 1959, ~+'Son'S AanotatOd~itil Etatu+o. . near 66f0m~6: . '*Scpppllneof orart klnil,~raa& on4 brli@o nictorial,Or SW other motorlal, for tho ueo of 6618 oountr, or say of it0 otfloo~o, Osportamto, or frwtitutlons zauofbe purohoeod On ocMp@tltlvo bide, iibo auntraot to to awordod to the prrty who, In tho juQ&ueat bi the ooml.elonete bOl)rt, Jimaoa8mltt.d tho 10we.t a.5 hast bid, Fho ooOnl+ auditor6boll o&o+tiot for 'o period of tmo a6dJm ln at leaet oao deilr OOlgepOr, ptibll8h04~olrb~“ oiroalatoa in tho :oOOatr, tar ruoh l pp1foe.W rutorlel oooordlngto l po01f100f10.0, glVlE# ln 4otol.lwhrt 16 noo(Lod. Suoh lW.ftle~ta rho11 etaOo whore tho l pool?lo~tl~ la to b8 tocud, end shall glro the tlmo oad pluoa iOr nOOlVlo(t euoo hlCz;. 4ll~ouOh oompatltiro bid6 6bel1 bo ..- - . .._-. . _. _---  kept on Sile by Wm ooonty ludltor as l p u t or the moorde of hlo offioo, and aEd1 be lubjoot to lne~otlon 8 any one daeirlngto~eaothan. . Coploe of all b 2: do roool~~ eholl be tclmlehM by the oooaty lditor to tho oouatr &I l ant to tb oowmieelonuo oouh and when the b 6446 ro- oolrmaare not eetiorao4 ory to the ode J&IQ. or oouat 0~eelonoro, the auditorshell ro oat odd tids anilro4drortleo for mm bide. in oaeoe cf amorgoao , purohaeoe nci in 0x0006 of . on. hundrd an6 84 ftt doll~re m0y be u3.r apOa roquleltlon to be lp p r o toby6th eoamnleelonue OOUlPt,Without l4TOl’ tiOill~ tOTOap.titi+? bid&* rr0n the ioote etatrd la'~our'littor, It &a up* ant th a th t eCemmlrioau8? Co ur at tEotor Ocuntr,ldto r tt;l*ed ior bide ior x-004mohlnory in aoapllonao with Artlolo 1669. In‘o o o o nlowith no oluo bldr o Ttlemmt tide wuo o o llo fo d r and eubmlttad bfflrao, at the ro6ulorKUOh tom of tho Qomleeicnue~ It fuzthor pears that thua wore Ocurt. tit8 bide oubmittod on& the Oomlee"ponore* Court adltbrr 0808~ nor rbjootr(l8x1~ of the blde, br v&r oi the.ooart, anU Sallad to lot upon euoh bl4e .aoopt tha one bid when two of the aaPlaieolonae~tot~ to.oooopt th bl4 aba i U&o &or rotod to rojoot tha bid. It le~fur thlhu8wnlu ‘o ur Uttar that ltha 00&W ldjO~R~o4 it6 ?oguUr WO~;~E@ rb ihl '.seroh tam without iw f&no1 rpbian upoa tho bid mbalttoh 8OWMOr, h th0 USt p a r a g rO afpYOM h h t%U itf0ltUm -it alng aotu4aeaottha Irptil ton Of~Ooort ttm; &lo' on4 is the &wont and boat biddo+. Ooail~ori f$g t othor @a pneonto& In tour letfor, It Y a @u thut cm3 8oionste*0~~6% 614 not looopt on7 cb tho bl40 rub- dttod. T h o r o fo . . it r L ntenc#o eo lp p er ath t ct tb bldo mb mltted wual ot~eiiat~ Oh8 OoUPt: It will be not1084 / to rapro, l that Art1010 l.l)89, poolmllf prorldoe Wion .t40.~1~6 rroolrrd 8ro.not oofiefooto~ to euoh W60 or OoMtT sbl- deeloaore, tha oouut oubitor #boll Toloot .euoh bU8 aa4 re4drortle~ tor new r;i dew. After 8 OON?R l@ UQhCt th 8 luthoritloo we hove boon ua+blo to find oay 086~ that do- oldee the quoetloa pr06oatea in your lottrr. Eowo*or, 06 the Omwleelonue~ hurt Sailed to lpprct0 end 0OOOpt rqt of the bide eubdtted et tbo time end pboo for rooolVin(! enoh bide 86 adrortleo8; it is Ouropinion thet the  S’ ;“.: = i’ - ‘ . B. IC.0. ‘ouron, Da&e.4 rle8lonoro~ Ooust oaanct now 106ally oontriot 4 th ly th eb ldd~rlabmlttla(l e eooh bl4e at the Kereh tea of ert, bat it 16 the 4utf of the OoMty mIltor to roJ@et oh.bl66 lnb n-o6~tloo ior now bide. Truotlag that tim Soro6ola6 Sully anawue vow a ul~, we lm r a a rr oo x y tr uly FIRSTASSISTtiT nradl vlllaai ATTGRtlETG- Aoeletont i rlh i .

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02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4142942/

- I. ;.. e a.‘. . OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN EOon.T'.LI.Trimble L First Ascistant State Superintendent Austin, Term Dear Sir* . Gpinion Wo. O-3422 Be: Spearman Independent school District and the laws governing Its operation. In your letter of A&l 16, 1941, you request our c;inion in response to a number of questions concern- ing tbe Spesrman Independent School Distrfct, oreatad by sseclal act of the Legislature In June.,1920.. H. B. 7C, Ch. 73, p. 226, Special Laws of Texas, 3rd Called Session, 36th Legislature, Your first question is: . *Can the Spearman Independent School Dis- trict change over'and operate under the general laws of the State.oS Texas? If so, 'whatsteps would be necessary? Ke hatie no ztatutes direotly authorizing such a Vhange over*ias you'mcntloa. Article 2767, Revised Civil .. Statutes, provides a method for abolishing independent sohool districts,.those created by special acts as well as those organized under the general laws. Articles 27678 to 2767f, inclusive, should be considered in conneotion sith any such move. If-the Spearman Independ.entSchool District v.'as crested out of territory containing two or more coxnon school districts, then, ff the rAstrict -:houldbe abolished, . .the c&non school districts w-.uldresume their prior status,' under Article 2767f. Otherwise, upon abolishment of the District, its territory would be subjeot to formation into a new district or districts, common or independent, or nnnexa:i:.nto other aistricts, depending upon facts and circt+mstencesof which we are not advised. Y. i . .,-  Eonorable T. ir.Trlmble, l?aago . 2 2. since your second question depended upon an effird=tiveanswer to your first question it need not be nOt'oc%. Your third question reads: "Can the Speerman Independent School - . District operate partly under the general. law and partly under the special law'?" As a general proposlti:Jnthe District must oper- ete under the terms of the special aot creating it. Smith vs. L!ortonIndependentschool District, 85 S. w. (2%) 853. .??oviever, certain lavasof a general nature have.been enacted since the District was oreated whlch,apply to it. Year question is answered affirmativelyIn this way: It must operate under the special law creating it, as well as in accordanoe with applicable general laws. Y&r fourth question is: Van the beard of trustees of the Spearman IndependentSchool District levy an amount in ex- cess of 25 cents on the hundred dqllars valuation for *sinkingfund’ purposes when speolticallyre- strloted to.25 cents for such purposes under the .. speolal act by whioh the 61striot was created?" Sections 17, 19 Andy21 of said X.:B. 7G, '3rdCall- ed Session, 36th Legislature, read:. ..V80.47.' The boera of trustees or the Spearmnti.Ind8pendentSchool District is here- by authorized to i&sue bonds and borrow money OT.the credit of said district ror the pur- poses set forth and in the manner prescribed by the general laws of the State as .now or hereaf$er existing, pertainin& to independent school districts; and they shall expand such moneys when oolleoted, or any..partof same in the manner and for the purposes set forth in the $eneral laws of the State, as now or here- . after existing, governing Independent school ;> a4str1,0ts* -. ?.  -. -_ . . . Eonarable i. 3E.Trlmble, Fag6 3 i. 3ec. 19. The board of trustees of said Spcarman IndependentSchool District shall have the pa-werto levy and CO lect.an annual ad val- orcm tax, not to exceed the Constltutlcnallimit as Is now or hereafter may be adopted, for th3 ralntenance of the schools therein, and a tax not to exceed twenty-five oents on the one.hun- dred dollars valuafi0n 0n such taxable property for the purchase or sites and for purchaslnS, constructing,repairing, and equipginS public fre4 school bullaln~s within the limits of sda district; provided that the amount of mainten- ance tax, togetherwith the amount of bond tax, shall never exceed the Constituticnallimit as Is n0w or hereafter may,be adopted. "Sec. ?:. The provisions of this Act shall be cumulative of all Scneral laws.now In force, or to be hereinafterenacted, governing indgpend- ent school district, their ?Snner of creating debts, levying and collectin: taxes, axcegt when the same ia in confllot with the provisions of this Act." At the the said Rouse Bill was enacted the con-, stitutlonaL limitationwas fifty centson~the one hundred dollars valuaticn for oombined malntenanoe and building Ftirposes.Arti 7, Se0.2. HOWeVer, on November 2, 1920, the people of Texas amended such section of the Constitu- tion raising such limitation to one dill~aron the hundred aollers valuation. And, in 1921, the Legislature enacted into lew Ii.B. 118, Ch. 24, 0. 50, Gen. Laws, 37th LegIS- lature, enabling school distriots,.lnoludi-g.independent districts create4 by special lavr(Sec. 13), to take advan- tage of the constituti nal.amendmentof November, 1920. See Articles 27&4 to 2796, Revfsed Civil Statutes. said Article 2764 now prescribes the taxing +dtstiozz on this Eistrict. Your fburth question is therefore answered In the affirmative. However, your attention is call@% to subdivision4 of Article 2784, requiring the consent of the voters to any such increase. The seventh qu0stion'submitted'byyou roads: : . "Does Section 17 Sovern ln.the natter of the amount that may be leVi8d for buildings, eto., or ',;this gOV8Tn8d by the 25 oent l%mitation in Sec., ?" 2 .. . r - . .I Zonorabl8 2. zd.Trimble, Fag8 4 i. Ghat yieh3ve said in answer to the fourth ques- tion indicates the answer to this one. The District may proceed under Section 17, bound by the lim1tatlocs set forth In Article 2784, and disreEar%ing the twenty five cent limitationfound in Section 19 of the Speolal act. The fifth interrogationiXiUd8S two questions, re3ding: "%XIr8 the board Of equalization COnsists entirely of members of the School Board, which can be done under the provisibns of the act ore- atins said district, are the acts of such board of 8qualizatlOnvalid? If a member OS the bosra other than the uresident Dresideo over the board Of equallzation~would'th; acts of such board of equslizat$onbe binding?” .'Section~8.of. said FIou68'Bi1170 reads: "After every annual assecment bf the proper- tY of said aistrlot for taxation, as herein provia- ea, the board of, trustees shall appoint either of their 0~::members or ?ther suitable persons vihose duty it .&all be to act as a.boara of equalization, which said board of.equallzatlonshall be composed of three members and-shall make and subscribe to an , oath~a&dnist8red by the pr8Sfd8nt or SeCr6tary Of th8 bO3rd Of trustees, or by eny officer authorized to administer'oaths,that they will faithfully and impartially6qualiz.ethe accessed value of the ?ro- perty of the district to the best of their skill and ability; and it is furthe:,providedthet the prese- dent of the boerd of trustees shal be ex-officio member and chairmen of the board of equalizetlon, and said board of equalization shall hove 311 the power and authority now c cnferred by law upon com- ., missioners courts, when sitting as a board of equal- ization in firing property values, and shall b8 governed by the law applying to commissionerscourts when sitting as 3 board of equalization,as to notice and hearins on raises of property value." Vhlle the trustees of an independent distrlot Organized Und6r general laws may not appoint themselves to serve as the board of equall~ation (St. Louis S.X. hy. Co.  EoonorableT.X. Trlcble , Pa@ 5 -.. VS. Xaples Ind. Sch. Dlst. 30 S. 'VZ. (2d) 703), it Is ex- pressly provided in Seotion 8 that the trustees of the Speaxsn Dlstrlot xcayap olnt the EqualizctionBoard from their own number. The provision in Article 2791, Revised Civil Statutes, to the effect that when an independent a district has Its own assessor the assessment is to be equalized "by a board of equalize ion ap?o?nted by the board'ol trustees"was Inserted by an anendment to the stctute in 1923. It is a general provision and no inten- tion to repeal Section S of said H. B. 70 Is manifest. The rlrst or the two questions lsgediately above is answered in the arrlrmative. Xe do not feel like attempting to give a categorloalanswer to the second'of these questions which would be applicablaln all 08886, regardless of surrounding facts and~oiroumtances. Ye would observe that the presl- dent of the board should and.vrehave no doubt does and will continue to strictly: ollon the.statute in this respect, thus eliminating this q:lestion. '. The sixth question is: Where the board of'equalization is to oon- s&St or others than members or the board or trustees of such sohool, how many suuh persons should be appointed to such board of equalizationand must the President of the Board of Trustees serve as Chalrr+anof'the board or equalization?* our interpretationof~Section 8 is that such a board as that mentioned in this question should be composed of the president of the sohool board as ohalman and three appointed aembers.~ Yours very truly ATTORNEY GENEP& OF TEXAS By ..-.'s/ C&l C. Cax&k Assistant CCC:lh APPROVED: OPIMGB C:‘LlXITTEE AP?ROVED APR SO,1941 . BY BWB Chairman 9/ Glenn R. Lewis ACTING ATTORRXY GENEAL OF TEXAS _ .

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https://www.courtlistener.com/api/rest/v3/opinions/4128035/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 95-617 of : : June 19, 1996 DANIEL E. LUNGREN : Attorney General : : ANTHONY S. DaVIGO : Deputy Attorney General : : ______________________________________________________________________________ THE HONORABLE WILLIAM J. KNIGHT, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question: May the President of a California State University discontinue the Reserve Officers' Training Corps program from the university's curriculum based upon the difference between the United States military policy and university policy respecting discrimination on the basis of sexual orientation? CONCLUSION The President of a California State University may discontinue the Reserve Officers' Training Corps program from the university's curriculum by giving one year's prior notice, regardless of the basis for the termination. ANALYSIS The Reserve Officers' Training Corps ("ROTC") program in a "host" educational institution encompasses classroom instruction in military science as well as military training for student cadets. The objectives of the ROTC program are to attract, motivate, and prepare students to serve as commissioned officers in the army, navy, air force, or marine corps, both regular and reserve forces; understand the concepts and principles of military art and science; develop potential to lead and manage; understand other professions; develop integrity, honor, and responsibility; and to appreciate the need for national security. (See 32 C.F.R. ' 562.4.) 1. 95-617 The question presented for resolution is whether a President of a California State University may discontinue an ROTC program from the university's curriculum because of a difference between the United States military policy and university policy respecting discrimination on the basis of sexual orientation. We conclude that under federal law, a university president has the contractual right to unilaterally terminate an ROTC program by giving one year's notice, regardless of the basis for the termination. Preliminarily, we note that the relative validity or merit of either policy is not in question.1 The federal policy (10 U.S.C. ' 654) is commonly referred to as the "don't ask, don't tell" rule. The university policy prohibits discrimination "on the basis of age, ethnicity, religion, sexual orientation, marital status . . . ." (Cal. State University Catalog, Appen. II; see also Exec. Order 340 (1981).) Also, it may be assumed that the university president will follow whatever university procedural requirements would be applicable in discontinuing the ROTC program, e.g., consulting with the chancellor or faculty members. (See Cal. Code Regs., tit. 5, '' 40103, 42701.) We are not asked to examine whether, and it will be assumed that, the university president is authorized to establish by contract or to disestablish by contractual nonrenewal an ROTC program.2 Whether a state policy is preempted by federal law depends upon congressional intent or statutory language. In Louisiana Public Service Comm'n v. FCC (1986) 476 U.S. 355, 368-369, the court explained: "The Supremacy Clause of Art. VI of the Constitution provides Congress with the power to pre-empt state law. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Rath Packing Co., 430 U.S. 519 (1977), when there is outright or actual conflict between federal and state law, e.g., Free v. Bland, 369 U.S. 663 (1962), where compliance with both federal and state law is in effect physically impossible, Florida Line & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), where there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983), where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947), or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Hines v. Davidowitz, 312 U.S. 52 (1941). Pre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation. Fidelity Federal Savings & Loan 1 Several lawsuits are pending with respect to various aspects of the federal policy. 2 The public policy of the state does not require the establishment, continuation, or disestablishment of an ROTC program on a university's campus. (Ed. Code, ' 67600.) 2. 95-617 Assn. v. De la Cuesta, 458 U.S. 141 (1982); Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691 (1984)."3 In applying these various principles of federal preemption to the instant matter, we first note that the status of an ROTC program arises by virtue of a contract between a branch of the military and a host educational institution in developing a cooperative relationship. (See 32 C.F.R. ' 562.5.) Federal law provides: "(a) For the purpose of preparing selected students for commissioned service in the Army, Navy, Air Force, or Marine Corps, the Secretary of each military department, under regulations prescribed by the President, may establish and maintain a Senior Reserve Officers' Training Corps program, organized into one or more units, at any accredited civilian educational institution authorized to grant baccalaureate degrees, and at any school essentially military that does not confer baccalaureate degrees, upon the request of the authorities at that institution. "(b) No unit may be established or maintained at an institution unless- ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(2) the institution fulfills the terms of its agreement with the Secretary of the military department concerned; and "(3) the institution adopts, as a part of its curriculum, a four-year course of military instruction or a two-year course of advanced training of military instruction, or both, which the Secretary of the military department concerned prescribes and conducts." (10 U.S.C. ' 2102.) Hence, under the terms of federal law, an ROTC program may be established and maintained only "upon the request of the authorities at that institution." Further, no cause or basis is required or needed for the termination of an agreement. A typical agreement, and in particular the agreement under consideration herein, provides that it "may be terminated at the completion of any school year by either party, by giving at least 1-year's notice, or sooner by mutual agreement." Federal policy is thus clear. The ROTC program on a university's campus is voluntary, not a mandated or required program. Either the university or the military branch may terminate the 3 The supremacy clause provides as follows: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the Constitution or laws of any state to the contrary notwithstanding." (U.S. Const., art. VI, cl. 2.) 3. 95-617 program at any time by giving one year's prior notice. Just as the university may terminate an ROTC program based upon a difference in policy, so also may the military branch involved.4 Here, we do not have a conflict between a federal law and a state law. Rather, a university president is contemplating the exercise of a contractual right given him by the federal government. With respect to termination of an ROTC program, Congress has ordained that the program be voluntary. Just as we cannot rewrite federal law, we cannot rewrite a federal contract to eliminate a university's right to discontinue the program after giving one year's notice. It is concluded that the President of a California State University may discontinue the ROTC program from the university's curriculum by giving one year's prior notice, regardless of the basis for the termination. ***** 4 Other policy differences between the military service and the university may exist, for example with respect to discrimination based upon age or disability. 4. 95-617

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OFFICE OF THE ATfORNEY GENERAL OF TEXAS AUSTIN at hi0 market. a.ueetion 16 69 folbue: 6 NId OpBFat66 a FBta%l g[reOem onndotion tharevith a rrtall He b66 not aoubply with ~Ftlolefa 6904 ore 6908 R. G. s., nor with ~rbl6166 1447 to 1484, p. 6., buaurr he Uuer not butoher or slaughter mlaals F&a~slf,, exoept 66 harainafter stated. E. 5'. owes 4. B. an aeeount of $39.00,  681 Hon. F. v. Winter, Page 2 and ha6 an ani6al whteh he io willing to beliver to A. B. in 6ettlement of the aooount, an8 whloh b. B. 1s willing to aoospt ln'rsttlement of such aaoount. In order to avqld~harlngto oomply with the abor4 oite& Artl416r and to rlnpllf~ th6 operation of hi6 bulnem, A. B. then ha6 0. D., ?FOm whom h6 Usually pUFQh688 bUt8hBFed oar4a6een for retall purporer in h&6 MFkrt at an agreed prio,e-per pound and rho ha6 oOmpll4d with the above alted dolea, to go and pur0ha64 the anl- ma1 from 6. r',at the apeml prior of $iYJ.OO be- tween b. B. A K. 1.; aster whiah 8. D. then rlaughterrthe urim61 6m2 d611~4r6 the aar4a66 to A. B. at the-agF64d prioe between thws for b$hhs;ad oaroi6646,~lesr The 830.00 hue by JL b. . for whloh A. B. jjiV68 E. F. oredit.in oanaell~ilon of his aoocmnt. WnUer the above Statement oY Faotr Bo. 11, 16 k. B. a 'krtoh6r' or 861atight4r6r'. within the. meaning ,oZ the above altbd Artioles so Anita make il,ne04s66ry for hi16 to ooaply thrmw%th?' Art1014 0904, fierireclOlrll Btatute8 of Texan, read6 am~tollow6: #Each person in tblr State engaged in the slaughteranmd6ale of.anlmalr for nrrket shall make a regular sworn report to eaoh regular m4etlng of the 4ommlr6loner6 oourt of the ooun- ty, gltlng the numb4r, ooler, 6ge, aurIs an& bran&a of every anlm41 slaughtered by hi4 shoe ~th& lart term of 6aid aouFt, to be filed with 'md kept on flle by the aounty clerk. Eaoh 6ald report shall be aooompanlsd by the bill of male or written oonreyanoe to the butaher for every animal that he has purchased for slaughter, If any of the rnim616 slaughtered hare been !. ral688 by himself It eb6ll be so stated in the report. Said report 60 made to said court may in the dleoretion of Bald olerk bedestroyed after a period of five years.' Artlole 0500, Rsvlsed Civil Statutes of Texas, 1: read6 ab fOllOW8: 'Every person, before hs shall set up and oamy on the trade OF oooupatlon of a butoher or . Iion,,P. W. Mnter, Fage 3 rlaughtersr of cattle ia thlr Nat4, sY34l3. file a bond to be approwd by the county 5uQp of th4 oouaty,in whioh he~d44Lree to aarm.0~ th4 burl- u446;,ln ~a 6~16 mot lea4 than Wo hundred nor more than on4 thoumaiM doll&m, payable to the 'state oi T&as, obnditlon6d that 94 shall k*ep a tm4 and falthiul record In a book kept fgr that pur- ~064 of all OaPtzle pIWchB6d OF rlaughtBr4d by him, with a d464r%#h~ian,4i the aninal inoltlding mark6, branar, age, oolor, wright, and from w&x@ puroha~ed and thendate~tberebf; .that he will ha+* the hid4 and ear of auoh animal inapeo8ed by~the lnrpe,etor, or 6~oone maglebrate of the aounty, within Wreatg day6 after it is alaughEered, and thab.'hs will not purohaea~anJ oattle that ha8 been slaughtered by another unless the h%de and bar8 of rueh slaug&tsred animal aooompany said LWiI6a,~Off4F4d iOr aale, a@ that.h4 till not purohase any animal that ha6 b6~bn' rlaughtered by another when the esr.mBrka, or brand6 on .the h%d6 aooompanJlng suoh aniy+l,.;wh4n offered for' sal4, &3vz Been changed; mutilated or destroyed. Any butaher or slaughterer of oattle who shall vlo- late anJ oondition of 8aM bond may be sueb upon hi6 bond at the instanoe of th6 oounty or distrlot attorney of the oounty where suoh bond la.g%ten. All sUma rsooversd by suits upan said bonds ehall b4 pafd into the countr treasury and bQaeme a part o? th6 avallable sohool fund o?.suoh gount$." Th4 oonstruotlon of the64 aam 6tattIt80 war oon- aldared by this department in oonfersnoe OpinZon Tie. 2017, by Attorney General 0. W. %reton, datsd April 2, 1919, atlilremsott to Honornble 0. C. Jackson and appearing at page 556 of the publlrhed biennial r4port of the ,Attorney General of Texar for the year6 1918 - 1920. We are 'attooting here- to a OOPJ of this oplnlon whloh we bellets'oorreotly rtates the law upon the queatlon. The opinion of course refers to Artlole 7179 Oivll statutes of the lb11 oodiSlo&m which now appears as Artiole 6808 of the %vlsed sivil statutes of 1925.  683 Bon. P. w. mnaer, Paw 4 Applying the rule annouaaed in the baton opinion to the iarrh situat%on rhioh you hare preremted, it tr our opinion thaO I$ ir not aaarrrary for A. B. to oozply with the proririone of Atiiolra 0904 and 6908, Rwlwd Clril Btatutea; lQLoI10,or Artialea 1447 to 1454, Inolurlre, Penal cod*, 1926. FIRST ASSISTANT ATTSRXiY GIQJ~L Walter n. ; A8UilJ

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ATTORNEY GENERAL OF TEXAS GREG ABBOTT June 4,2012 The Honorable Cathleen Parsley Opinion No. GA-0947 Chief Administrative Law Judge State Office of Administrative Hearings Re: Manner in which the State Office of Post Office Box 13025 Administrative Hearings is authorized to bill Austin, Texas 78711-3025 certain agencies under the terms of section 2260.103, Government Code (RQ-1032-GA) Dear Judge Parsley: You ask about the billing practices of the State Office of Administrative Hearings ("SOAH") with regard to specific state agencies. 1 Subchapter C, chapter 2260 of the Government Code relates to "contested case hearings" conducted by SOAH to resolve certain contract claims against the state. A contractor who "is not satisfied with the results of negotiation with a unit of state government" may request SOAH to initiate a contested case hearing. TEX. GOV'T CODE ANN. § 2260.102(a) (West 2008). The chief administrative law judge of SOAH is authorized to set a hearing fee for a contested case, and to either (1) assess the fee against the non-prevailing party, or (2) apportion the fee "in an equitable manner." Id. § 2260.103(a)-(b). You indicate that a rider to SOAH' s appropriation in the most recent General Appropriations Act (the "Act") provides, in relevant part: 7. Billing Rate for Workload c. Amounts appropriated above in Strategy A. 1. I , Conduct Hearings, to SOAH from the General Revenue Fund include funding in each year of the biennium for billable casework hours performed by SOAH for conducting administrative hearings at the rate determined by SOAH and approved by the Legislature for those agencies that do not have appropriations for paying SOAH costs for lLetter from Hon. Cathleen Parsley, Chief Admin. Law Judge, State Office of Admin. Hearings, to Hon. Greg Abbott, Tex. Att'y Gen. at 2 (Dec. 21, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter"). The Honorable Cathleen Parsley - Page 2 (GA-0947) administrative hearings and are not subject to subsection (a) of this Section: General Appropriations Act, 82d Leg., R.S., ch. 1355,2011 Tex. Gen. Laws 4025, 4740-41. There follows a list of 34 agencies that are subject to subsection 7c. and thus do not receive funds from their own appropriations to pay SOAH to conduct administrative hearings. See id. Agencies other than those named in SOAH's Rider 7c receive specific appropriations to contract with SOAH to perform administrative hearings? You ask how SOAH should bill the various agencies under these two different circumstances. In construing a statute, courts begin with the statute's plain language. Exxon Corp. v. Emerald Oil & Gas Co., 331 S.W.3d 419, 422 (Tex. 2010). Statutes relating to the same subject matter are to be read and construed together in determining legislative intent. Calvert v. Fort Worth Nat'l Bank, 356 S.W.2d 918, 921 (Tex. 1962). Because section 2260.103 and Rider 7c relate to the same subject matter, we read them together. Nothing in the Act limits the chief judge's authority under section 2260.103 of the Government Code to set fees when the hearing involves one of the 34 specified agencies. Nor does the statute address how assessed fees are to be satisfied. But if fees are assessed against one of the agencies named in the Act, Rider 7c clearly contemplates that the funds appropriated to SOAH should be used to offset the costs of the hearing. On the other hand, if an agency is not one of those named in Rider 7c, SOAH should bill that agency for its share of the costs incurred in the hearing. 3 If, by contrast, costs are assessed against the non-governmental party, neither the Act nor section 2260.103 permits the use of SOAH' s appropriation to satisfy those costs. In conclusion, if the State Office of Administrative Hearings assesses its fee for a contested case hearing to the party that does not prevail in the hearing, it should bill the non-governmental party when the state agency prevails. If the non-governmental party prevails, SOAH should bill the 2As an example, the appropriation for the Commission on Environmental Quality provides the following as a rider: "Included in the amounts appropriated above is $1,000,000 in each fiscal year ... to cover the cost of contracting with [SOAH] . . . for the purpose of conducting administrative hearings and for related expenses." General Appropriations Act, 82d Leg., R.S., ch. 1355,2011 Tex. Gen. Laws 4025, 4635. 3Section 2003.024 of the Government Code provides that, in the event that an agency is not one of the 34 agencies named in SOAH's appropriation, but the agency has "referred matters" to SOAH "during any of the three most recent state fiscal years," SOAH and the relevant agency "shall enter into an interagency contract for the biennium under which the referring agency pays [SOAH] a lump-sum amount to cover the costs of conducting all hearings and procedures during the fiscal year." TEX. GOV'T CODE ANN . § 2003 .024(a) (West 2008). If the agency did not refer matters to SOAH during any of the three prior fiscal years, "the referring agency shall pay the office the costs of conducting hearings or procedures for the agency based on the hourly rate" set by SOAH. Id. § 2003.024(a-2). The Honorable Cathleen Parsley - Page 3 (GA-0947) state agency if the agency is not one of those listed in Rider 7c of SOAH's 2012-13 appropriation. lithe agency is, on the other hand, one of those listed in Rider 7c, SOAH should use funds from its own appropriation to offset the costs of the hearing. 4 4These standards apply when the chief administrative law judge chooses to assess fees against the non-prevailing party. In the alternative, the chief administrative law judge may choose to apportion fees "in an equitable manner." TEx. GOV'T CODE ANN. § 2260.102(a)(2) (West 2008). You do not ask, and we do not address, the standards that apply to an equitable apportionment of fees. The Honorable Cathleen Parsley - Page 4 (GA-0947) SUMMARY lithe State Office of Administrative Hearings assesses its fee for a contested case hearing to the party that does not prevail in the hearin g, it should bill the non-governmental party if the state agency prevail s. 1f 1J1e non-governmental party prevails, SOAH should bW the state agency if the agency is not one of those Ii sted ill Rider 7 c of SOAR's 20 L2- l3 approprjation. Ifthe agency i , on the other hand one of those listed in Rider 7c, SOAH should use funds from its own appropriation to offset the costs of the hearing. Very truly yours, DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee

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TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 94-1111 of : : May 10, 1995 DANIEL E. LUNGREN : Attorney General : : GREGORY L. GONOT : Deputy Attorney General : : ___________________________________________________________________________ THE HONORABLE SAL CANNELLA, MEMBER OF THE CALIFORNIA STATE ASSEMBLY, has requested an opinion on the following question: May the governing board of a school district discipline a school principal for taking time off to perform emergency duty as a volunteer firefighter? CONCLUSION The governing board of a school district may not discipline a school principal for taking time off to perform emergency duty as a volunteer firefighter, but may require the principal to follow reasonable procedures to ensure that the needs of the school are adequately met during any absence. ANALYSIS Section 35020 of the Education Code provides that "[t]he governing board of each school district shall fix and prescribe the duties to be performed by all persons in public school service in the school district." Such duties, as required of a school principal, may be expected to include the principal's presence at the school during regular school hours. 1. 94-1111 However, if also serving as a volunteer firefighter,1 the school principal may be called upon to perform emergency duties which could result in occasional, and sometimes lengthy, absences from the school. We are asked to determine whether a school principal may attend to emergency firefighting duties as a volunteer firefighter during regular school hours without being subjected to disciplinary action by the school district. We conclude that while disciplinary action may not be undertaken, the school district board of trustees may require the principal to follow reasonable procedures to ensure that the needs of the school are adequately met during any absence. Labor Code section 230.32 provides: "(a) No employer shall discharge or in any manner discriminate against an employee for taking time off to perform emergency duty as a volunteer firefighter. "(b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because the employee has taken time off to perform emergency duty as a volunteer firefighter shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor. "(c) Subdivisions (a) and (b) of this section shall not apply to any public safety agency or provider of emergency medical services when, as determined by the employer, the employee's absence would hinder the availability of public safety or emergency medical services. 1 "Volunteer firefighter" means any person registered as a volunteer member of a regularly organized fire department of a city, county, city and county, or district, having official recognition of the government of the city, county, city and county, or district in which such department is located. (Gov. Code, ' 50952, subds. (h), (m).) 2 Unless otherwise specified all section references hereinafter are to the Labor Code. 2. 94-1111 "(d) For purposes of this section, "volunteer firefighter" shall have the same meaning as the term "volunteer" in subdivision (m) of Section 50952 of the Government Code." In analyzing the language of section 230.3 so as to resolve the question presented, we bear in mind several well established principles of statutory construction. As explained by the Supreme Court in Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal. 3d 1379, 1386-1387: "Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citation.]" The role of the volunteer firefighter and the need for protective legislation was expressed in the legislative history of section 230.3 at the time of its enactment. (Stats. 1989, ch. 167, ' 1.) The report of the Assembly Committee on Labor and Employment stated with respect to the proposed legislation: "Volunteer firefighters play an important and often vital role, not only in combating fires in their community, but also in assisting the state and other governmental bodies in fighting regional fires. Membership in volunteer firefighter units should be encouraged. Volunteers should not be subjected to the possibility of job loss or other negative employment consequences as a result of their services to the community." While the legislative history expresses the general legislative intent in enacting section 230.3, we recognize that special rules of statutory construction apply when determining whether the general terms of a statute are applicable to a public agency and public officials. These rules were summarized by the Supreme Court in City of Los Angeles v. City of San Fernando (1975) 14 Cal. 3d 199, 276-277, as follows: 3. 94-1111 "[I]n the absence of express words to the contrary, neither the state nor its subdivisions are included within the general words of a statute. [Citations.] But this rule excludes governmental agencies from the operation of general statutory provisions only if their inclusion would result in an infringement upon sovereign governmental powers. `Where . . . no impairment of sovereign powers would result, the reason underlying this rule of construction ceases to exist and the Legislature may properly be held to have intended that the statute apply to governmental bodies even though it used general statutory language only.' [Citations.]" We find it significant that although section 230.3 refers generally to an "employer," it specifically refers to a "public safety agency." (' 230.3, subd. (c).) Under subdivision (c), section 230.3 is inapplicable to public safety agencies when the employee's absence would hinder the availability of public safety services. The term "public safety agency" is not defined in the Labor Code, but it is used in the Government Code, where it is defined as "a functional division of a public agency which provides firefighting, police, medical, or other emergency services." (Gov. Code, ' 53102.) We may adopt such definition of "public safety agency" for purposes of section 230.3 under the principle of construction that "[t]he interpretation of an ambiguous statutory phrase may be aided by reference to other statutes which apply to similar or analogous subjects." (People v. Woodhead (1987) 43 Cal. 3d 1002, 1008-1009.) Accordingly, we find that the Legislature intended for section 230.3 to be applicable to public employers as well as private employers. If it had intended to exclude all public employers, there would have been no need to create the express exception for public safety agencies which appears in subdivision (c).3 The exception would be mere surplusage. We construe the exception as indicating that only matters of public safety will justify an employer's rejection of a call for the emergency services of a volunteer firefighter. Such construction is consistent with the legislative history of section 230.3 which expresses a strong public policy favoring the immediate availability of all volunteer firefighters when emergencies arise.4 3 A school district would not be considered an agency which provides police, medical, or other emergency services. 4 We note that the Education Code contains specific provisions which govern the granting of leaves of absence to school employees for the purpose of appearing as a witness in court, responding to an official order from another governmental jurisdiction, or serving as a juror. (Ed. Code, '' 44036-44037.) We do not find the call for volunteer firefighters to be in the nature of an "official order" and therefore regard Education Code section 44036 as inapplicable to the matter under consideration here. 4. 94-1111 Our construction of section 230.3 is also consistent with the provisions of section 220, which provide: "Nothing in sections 200 to 211 and 215 to 219, inclusive, shall apply to the payment of wages of employees directly employed by the State or any county, incorporated city or town or other municipal corporation. All other employments are for the purposes of these sections private employments and subject to the provisions thereof." Section 220 is part of the same legislative scheme ('' 200-243) as section 230.3 and indicates that the Legislature could easily have excluded public employees from the requirements of the latter statute if it had so intended. (Cf., 73 Ops.Cal.Atty.Gen. 13, 23 (1990).) We therefore conclude that the term "employer," as used in section 230.3, applies to public as well as private employers. Nevertheless, we do not believe that section 230.3 and Education Code section 35020 must be treated as irreconcilable.5 We are directed to harmonize statutes relating to the same subject wherever possible. (Dyna-Med, Inc. v. Fair Employment and Housing Com., supra, 43 Cal.3d at 1387.) Although advance notice of an emergency firefighting situation may not reasonably be expected, it would be incumbent upon the principal as the holder of a position of public trust 6 to inform the district of his firefighter status and to arrange with the district for a contingency plan to be utilized whenever he is called away for emergency firefighting duty. Such a plan could ensure that the public functions for which the principal is responsible do not unduly suffer as the result of any absence. The school district's ability to "fix and prescribe" the duties of its employees thus need not be fundamentally compromised in accommodating the public's emergency firefighting needs. It is concluded that the governing board of a school district may not discipline a school principal for taking time off to perform emergency duty as a volunteer firefighter, but 5 "[W]hen a special and a general statute are in conflict, the former controls." (Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal. 3d 391, 420.) Here, section 230.3 would necessarily be considered the more specific if the two statutes could not be reconciled. 6 A school principal, as the highest level administrator within a particular school, is in a position which directly affects the school district's capacity to perform governmental functions. If a principal is able to leave his post on an unscheduled basis for non-school related purposes, the district's ability to ensure proper management of the school could be diminished. (See Nutter v. City of Santa Monica (1946) 74 Cal. App. 2d 292, 302.) 5. 94-1111 may require the principal to follow reasonable procedures to ensure that the needs of the school are adequately met during any absence. ***** 6. 94-1111

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ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 30,2012 The Honorable Kevin P. Eltife Opinion No. GA-0943 Chair, Committee on Administration Texas State Senate Re: Whether, in determining the market value of Post Office Box 12068 a residence homestead, a chief appraiser is required Austin, Texas 78711-2068 to consider the value of previously sold foreclosed residential property (RQ-1029-GA) Dear Senator Eltife: You ask whether chief appraisers, in determining the market value of a residence homestead for ad valorem tax purposes, are "required to take into consideration the value of other residential property that was sold at a foreclosure sale conducted in any of the three years preceding the tax year in which the residence homestead is being appraised and meets the other requirements of Section 23.01(c)(I).,,1 Article VID, section 1(b) of the Texas Constitution provides that "[a]ll real property and tangible property in this State ... shall be taxed in proportion to its value, which shall be ascertained as provided by law." TEX. CONST. art. VID, § 1(b). Generally, the Legislature requires an appraisal district to appraise all taxable property in the district "at its market value as of January I." TEX. TAX CODE ANN. § 23.01(a) (West Supp. 2011). "Market value" is defined as the price at which a property would transfer for cash or its equivalent under prevailing market conditions if: (A) exposed for sale in the open market with a reasonable time for the seller to find a purchaser; (B) both the seller and the purchaser know of all the uses and purposes to which the property is adapted and for which it is capable of being used and of the enforceable restrictions on its use; and j See Letter from Honorable Kevin P. Eltife. Chair, Senate Comm. on Admin., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 13,2011), http://www.texasattorneygeneral.gov/opin ("Request Letter"). The Honorable Kevin P. Eltife - Page 2 (GA-0943) (C) both the seller and purchaser seek to maximize their gains and neither is in a position to take advantage of the exigencies of the other. Id. § 1.04(7) (West 2008). The Legislature has further instructed that "[t]he market value of property shall be determined by the application of generally accepted appraisal methods and techniques." Id. § 23.01(b) (West Supp. 2011). Furthermore, "each property shall be appraised based upon the individual characteristics that affect the property's market value, and all available evidence that is specific to the value of the property shall be taken into account in determining the property's market value." Id. Relevant to your request, the Legislature amended Tax Code section 23.01 in 2009 to add subsection (C).2 That subsection states: Notwithstanding Section 1.04(7)(C), in determining the market value of a residence homestead, the chief appraiser may not exclude from consideration the value of other residential property that is in the same neighborhood as the residence homestead being appraised and would otherwise be considered in appraising the residence homestead because the other residential property: (1) was sold at a foreclosure sale conducted in any of the three years preceding the tax year in which the residence homestead is being appraised and was comparable at the time of sale based on relevant characteristics with other residence homesteads in the same neighborhood; or (2) has a market value that has declined because of a declining economy. Id. § 23.01(c). The Texas Supreme Court has held that the primary objective when construing a statute is to ascertain and give effect to the Legislature's intent. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,439 (Tex. 2011). If a statute is unambiguous, we adopt the interpretation supported by its plain meaning unless such an interpretation would lead to absurd results. Id. Your request letter explains that appraisers have historically refused to consider neighboring foreclosed properties when appraising a residence homestead because foreclosure sales do not represent the "willful and arm's length transaction requirement in Section 1.04(7)(C), Tax Code." Request Letter at 3. By enacting subsection 23.01(c), however, the Legislature plainly mandated that, notwithstanding section 1.04(7)(C), chief appraisers must consider "the value of other residential property that is in the same neighborhood as the residence homestead being appraised ... [and that] 2Act of May 26, 2009, 81st Leg., R.S., ch. 619, § 1,2009 Tex. Gen. Laws 1404, 1404-05 (codified at TEX. TAX CODE ANN. § 23.01(c) (West Supp. 2011)). The Honorable Kevin P. Eltife - Page 3 (GA-0943) was sold at a foreclosure sale," as long as the other statutory appraisal requirements are met. TEX. TAX CODE ANN. § 23.01(c)(l) (West Supp. 2011). Thus, when appraising a property, a chief appraiser may not exclude from consideration the value of neighboring properties simply because they were subject to a foreclosure sale. The Honorable Kevin P. Eltife - Page 4 (GA-0943) SUMMARY Pursuant to Tax Code section 23.01(c), a chief appraiser, in appraising a residence homestead, may not exclude from consideration the value of neighboring properties simply because they were subject to a foreclosure sale. Very truly yours, DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Virginia K. Hoelscher Assistant Attorney General, Opinion Committee

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TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 95-101 of : : May 9, 1995 DANIEL E. LUNGREN : Attorney General : : GREGORY L. GONOT : Deputy Attorney General : ___________________________________________________________________________ THE HONORABLE JOHN R. LEWIS, MEMBER OF THE CALIFORNIA STATE SENATE, has requested an opinion on the following question: May a retail installment contract that is subject to the Unruh Act include a document preparation charge or, in transactions where the Unruh Act allows the taking of real property security, a charge for title insurance? CONCLUSION A retail installment contract that is subject to the Unruh Act may not include a document preparation charge, except as part of the finance charge, but in transactions where the Unruh Act allows the taking of real property security, a separate charge for title insurance may be included in the contract. ANALYSIS The Unruh Act (Civ. Code, '' 1801-1812.20; "Act") 1 is a comprehensive statutory scheme governing retail credit and installment sales of various goods and services. Its 1 All undesignated section references hereafter are to the Civil Code. 1. 95-101 purpose was explained in Crawford v. Farmers Group, Inc. (1984) 160 Cal. App. 3d 1164, 1168, as follows: ". . . The Unruh Act was enacted to correct abuses incident to the growth of the consumer credit industry. (See King v. Central Bank (1977) 18 Cal. 3d 840, 843-844.) The act proscribes a variety of unfair practices and requires complete disclosure to the consumer of the total cost for the purchase of goods and services under a retail installment contract." The Act covers contracts for a retail installment sale2 in which: (1) the buyer agrees to pay a finance charge that is added to the unpaid balance; (2) the goods or services are available at a lesser price if paid for by either cash or credit card; (3) the buyer would have received additional or higher quality goods or services if he had paid cash equal to the total amount paid in installments; or (4) payment is made in more than four installments. (' 1802.6.) Covered "goods" are those "for use primarily for personal, family or household purposes." (' 1802.1.) Contracts for certain items, such as marine vessels exceeding $25,000 in price, are not covered by the Act. (' 1801.4.) We are first asked to determine whether a retail installment contract that is subject to the Act may include a document preparation charge. We conclude that such a charge may not be imposed separately but may be included as part of the finance charge. For purposes of this opinion, we construe a "document preparation charge" to mean a fee imposed for the preparation of any documents in connection with the sale by installment contract of goods or services covered by the Act. We find that the imposition of such a charge is governed by section 1805.4, which provides in part: "The finance charge shall be inclusive of all charges incident to investigating and making the contract and for the extension of the credit provided for in the contract, and no fee, expense or other charge whatsoever shall be taken, received, reserved or contracted for except as otherwise provided in this chapter." A document preparation charge would be a charge "incident to . . . making the contract." As such, it could only be imposed as part of the finance charge.3 Examining the other provisions 2 Installment or revolving accounts (' 1802.7) are treated separately from installment contracts under the Act. 3 A "finance charge" is generally defined in section 1802.10 as "the amount however denominated or expressed which the retail buyer contracts to pay or pays for the privilege of purchasing goods or services to be paid for by the buyer in installments." (' 1802.10.) Certain 2. 95-101 of the Act, we can find none which would permit a fee for document preparation to be separately charged.4 No ambiguity in the Act can be demonstrated in this regard. We note that the absence of a provision for a document preparation charge in the Unruh Act is made conspicuous by the fact that such a provision does appear in the Rees-Levering Act ('' 2981-2984.4), a comparable statute governing the installment sales of motor vehicles. The Rees-Levering Act expressly includes a "document preparation fee" in its definition of "cash price" (' 2981, subd. (e)) and as being among the items to be disclosed in the amount financed (' 2982, subd. (a)(1)(B)). Under these circumstances, we may invoke the principle of statutory construction that "`where a statute on a particular subject omits a particular provision, the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision is not applicable to the statute from which it was omitted.'" (Stickel v. Harris (1987) 196 Cal. App. 3d 575, 591.) We thus conclude that the Act does not permit a document preparation charge to be included except as a component of the overall finance charge. The second part of the question posed concerns whether the Act permits a separate charge for title insurance when the transaction involves the taking of real property security.5 We conclude that a separate charge for title insurance may be assessed. While insurance premiums are excluded from the finance charge (see ' 1802.10), 6 the cost of such premiums may be made a separate charge in the contract items are excluded in section 1802.10 from the definition of a finance charge; however, a document preparation charge is not among the exclusions. 4 The Act contemplates that charges in the amount to be financed include the cash price of the goods and services to be sold, taxes imposed on the sale, official fees, a finance charge, and insurance premiums not included in the finance charge. (See ' 1803.3, subd. (c).) After the contract has been made, certain charges may be imposed for extending or deferring the due date and for default and collection costs. (See '' 1803.6, 1807.1, 1811.1.) Expenses incurred in repairing or preserving the goods and maintaining any security interest may also be recovered by the seller. (See ' 1802.10.) 5 Section 1804.3, subdivision (b) permits the use of real property security in a covered transaction only if the goods are to be attached to real property. 6 This is consistent with the treatment of title insurance premiums under federal Regulation Z (12 C.F.R. Part 226) which mandates the method of credit disclosure under the Act. (See '' 1802.18, 1803.3, subd. (b).) Under Regulation Z, the term "finance charge" excludes bona fide and reasonable charges for title insurance. (See 12 C.F.R. ' 226.4(c)(7)(i).) 3. 95-101 (' 1803.5) and are includable as part of the "total sale price" (' 1802.9) and the "unpaid balance" (' 1802.11, subd. (b)). The premiums are subject to disclosure as part of the "amount financed." ('' 1802.11, subd. (a); 1803.3, subd. (c)(3).) There is no express limitation in the Act as to the type of insurance for which premiums may be charged. We conclude that in transactions where the Act allows the taking of real property security, the Act permits the contract to include a separate charge for title insurance. ***** 4. 95-101

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6) ATTORNEY GENERAL OF TEXAS GREG ABBOTT May 29,2012 The Honorable Robert Vititow Opinion No. GA-0941 Rains County Attorney Post Office Box 1075 Re: Whether, under section 775.034, Health and Emory, Texas 75440 Safety Code, a county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district prior to January 1 of the year in which the appointment takes effect (RQ-1027-GA) Dear Mr. Vititow: You ask whether, under the terms of section 775.034 of the Health and Safety Code, a county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district prior to January 1 of the year in which the appointment takes effect. I Section 775.034 of the Health and Safety Code provides, in relevant part: (a) The commissioners court of a county in which a single- county [emergency services] district is located shall appoint a five- member board of emergency services commissioners to serve as the district's governing body .... (c) After the votes are canvassed and the commissioners court enters the order creating the district, the commissioners court shall appoint the initial emergency services commissioners to serve until January 1 of the year following the district election .... (d) On January 1 of each year, the commissioners court shall appoint a successor for each emergency services commissioner whose term has expired. ISee Letter from Honorable Robert Vititow, Rains Cnty. Au'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 7, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter"). The Honorable Robert Vititow - Page 2 (GA-0941) TEX. HEALTH & SAFETY CODE ANN. § 775.034(a), (c), (d) (West 2010). You question whether subsection (d) requires the appointment of an emergency services commissioner precisely on January 1, or, in the alternative, whether the county commissioners court may make the appointment on a prior date for the term that begins on January 1. Subsection (c) of section 775.034 does make clear that the term of the office at issue begins on January 1. Id. § 775.034(c). But the statute does not state the consequences of a failure to hold a vote to appoint on the precise date of January 1. See id. The date of the vote is not a matter of statutory consideration. The statute's only concern is the date of appointment. As a consequence, we read subsection (d) to require only that, regardless of the date on which the commissioners court meets to vote on the appointment at issue, the actual appointment shall take place on January 1. See id. § 77S.034(d). We take note ofthe incontrovertible fact that January 1 is a legal holiday on which governmental bodies are invariably closed. TEX. GOV'T CODE ANN. §§ 662.003(a)(l) (West 2004) (January 1 is a national holiday), 662.021 (a national holiday is a "legal holiday"), 662.022 (recognizing that a public office of this state may be closed on a legal holiday)? In addition, to disallow prior to January 1 a meeting to vote on the appointment to an office whose term begins on that date would necessarily result in the appointee's failure to begin her term until a later time. Any appointee must be notified of the appointment, determine whether to accept the appointment, notify the commissioners court of her decision, take the oath of office, and prepare to begin the exercise of her duties. We do not believe that the Legislature intended to prescribe such a rushed process. See Carreras v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011) (stating courts will "interpret statutes to avoid an absurd result"). We conclude that a county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district on a date prior to January 1 of the year in which the appointment takes effect. Because we answer your first question in the affirmative, we need not address your second question. 2J anuary 1 is a legal holiday in Rains County. Tel. conversations with Misty Johnson, Legal Assistant to Rains Cnty. Att'y and Kathy Lucas, Assistant to Rains Cnty. Judge (Mar. 14,2012). The Honorable Robert Vititow - Page 3 (GA-0941) SUMMARY A county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district on a date prior to January 1 of the year in which the appointment takes effect. Very truly yours, Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Ranomble F. E. Rif;htoar, 3ocratery Dear air: sbru4xy as, 10&l, 4pll rssk OUP cplmnion her or not one 9r4- vlml81~ aoaTlohs4 o to hold an 4ppolnt- lx4 enginaering of T%z38 40 s4t mlt in tubdivision a60 Bill 14 het8 of .~",' the 48th J&;me;i8~ 014 SeiQI 0) Y4mon'a ' 4lYil st4tut.l a. that ao pardon h4a b44n grant by telsphons that no%Pa%d Is whethrr on. previ5ualy aonviet4d tube abare relWm%d to. "(0) r"rovided, that na psrson hall ba eli&ble for r&otration ae a ~rofeeaiioml sn- girssr who fa not cf g5od chraatcsr mid. repu- tation; and grovtded furth4r, the% 811 ~~&nosr ll44ri44d under this Aot 4hz~J.lbe rile f ble to hold any appointiva 4ngSo44rLo~g ~poaltion with ths Stat4 of Terse.* lionorabls B.X. Rightor, Pag% 82 W4 havs oade an examinatton of the statut44 with respsot to the sp4aiPio qusetlon propound4d by you to d%t%r.. mins the statutory quallfioationa of angfne4r4 wboss p54G tlons ara prcvidsd for by law. Arti 6669 Of ths &wised Civil 9tatute4 provides that the Highway C0~uui6slsA l4hall %l%ct a State Highway BA- &ne%r who shall bs a ooxp%turt enginasr and 8 graduat,4 of some fint alLBs8 sohool of aifil %~&naerlng, sx9srieAosd and 4ltlll4d in highmy oonrtruetion and feaintsnante , , .* Tb4 Bcwd of Watsr Pnginsers was croated by the Act4 of th% $Brd Ls~lalatur%, OhaBt4r 171 ofths Q%~sral Lawa, and ootxtinurd in for04 and effoot by aubeequsnt aot4 and 14 now provided for in Artlol% 7477 of ths Revl4rd Civil Stat- Ut%l* lothing is uib with zcrrp%4t to either tlm Blghway Br&n%sr or the Bimrd of lWt%r B~gi~44r4 r%letfh ta tgoo& obaneter and r4putatlon. Our sramiaabion ot th4 statutea do44 not roY441 4ay POSitiOA of ellgios4r whloh %~qrl*rlUly araker pood 4hsraetar and rsputation a ~ualffl4ttian f4r ap- polntm4nt. It ceoeu,sarily follone tlast the applicant aaanot be d4Ai4d a liesnss c~c being &ualifieQ "to bold eny ap- poiatirs sngfnesriog OSitiOA *ith t.b% stat.6 or T%zasn ae ruohtarm In appannt f y m~in&%n. W4 wish to point out, h0wev4r, tbnt ycm Board Ir ctuwged with the Duty of aiaaertalnlng whather or not ths applfeant is a parson of *good obaraot4r and mput4tiosP. We do nat hold 38 8 vxittsr of tiw that the annv~aticn of a person for a felrmy would remlor such yraon on% of bed ahnr- acte4r an& s4Gutation. The detanainst1on of whethsP OP not the obnvlation, to.;cth%r with all faota and cirsuaert4neem barore you, render4 the applisaAt a pnnon of bad aharaetrr and rs;utation is s fact question which by law you or4 charged with the Uuty of detertllinlry;. Tt has bcsn repeatedly hold by the co~t0 of all jurisdlction4 that th4 dstcn-ia*- tlG2 Of @Cd CheraOtOr snd XQputitian bii a fact qusebiaa. It was 8aid bgths 9uprem4 Court of tdissouri in the eas4 of State v. Thcmpsm, 60 3. I, 10771 -,eutdrfsndeot olaim3 that Ssetioa 2 of th% hot d%l%p;otae leglalativewwer to on officer, namely, the State Auditor, ~x4crutivr, in thet it confers upon hia the riqht to %%y who arc 9arso~s of .qood oharaats,fr . . * -  92 while the LogilBlature eoure not d~lrgxito to the State Auditor the power to mko lam, it Qoos not follow that it oould not blat- gate to hirathe pimar to ps$ upcn the char- acter of pereon, applicant8 for 116om10* . . . The power dalr(prtod l . . 18 not the paY4$ to mnke a 1 To the uame offoot, $8 the holding of Harry 0undlIa6 1. City bi Chiaag, IT7 U. In the oas* oi all Y. aeltp-iTQ~r,doqlau~, a48 0. 3* 539, the 8upPeM Court 0s the uni$rd State8 had ber for+ it the qu~stlon ol t& eoar$ltationulLt.tp of the Ohio 3ranrlt~ea tit. Inyolvrrdtherdhral m attmk P 011the grounga tint the awtioq to tha IMUwag C#erta* i osao ai the power to dotemine "$;ood buujmsis repute' of the •~ plioant ,yaB uxlooa#titutlcMl blr Mb*Qo or the .24th Amsndnnt to the Unit.4 StatW Comtitutfon. It8 validity -8 8\18- tainmL liPi Juatiee UoxenM said; ~eputatfdn sad ohanstm are quite tan@40 lttrfbutsr, but than' oan be no 1*gialldtivo doffnltion OS tlnua that imI autmatloallp attaeh to ati idratdty indl- ridualn >brriering them, an4 n4~4rr~arily ;~;II;;: tf 8011~34xeoutlre agrnof mast be . The auqhoopittss upholding ths.vdlidity of 8tatutea Qelegatlsg to exdwtire Mfioerr on4 boar& the duty of *am- lng upon ths ?a& quwtlon of good charactercaaqropltatfon are too numer’ouu fsr’detailed eltation iker4fn, but in addition to those hsminebcws mentioned an the ea8aa air Riley t. C&ernb4rr, 186 Pm* em mp. ct. Calif. x,&on v. city a$ Atlakta, 34 3. E. 403 (Ck.) city or Roa~oke v. Land, ll9 3. 8. 59 (3upl Ct. Va,) \ Honorable Ir. B. Rlghteq, Page 4 we trust that the above dSaau4eloon of the lau and author1 ties cited will amist vu in the p4rtormnas or your duty. 1 Yours YOPy truly ATTORNEY QEWRRAL QF T!!iXAS

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THZ ATTORNEY GENERAL OF 3?ExAs AUSTIN. 1,. TEXAS Gerald C. Mann Railroad Commission Opinion No. O-3419 of Texas Ret Validity of order of BaFlroad Com- Austin, Texas mlssion amending the special commodity permit of J. R. Lingo without notice Gentlemen: or hearing. Your letter of April 9, 1941, sets forth the following facts: “On the 11th day of January, $936, the Railroad Com- mission of Texas in response to an application of J. R.~ Lingo, issued to said Lingo after pro er notice and hear- ing, .Special Commoddlty Permit No. 13f 35 a copy of which is attached hereto and marked Exhibit ‘I.-i*‘. “On the 6th day of April, 1936, the Railroad Commis- sion in response to an application of J. R. Lingo granted one additional truck to be operated under Special Commod- ity Permit No. 13435, a copy of which order is attached hereto and marked Exhibit “B”. “On the 22nd day of September, 1936, the Railroad Commission entered its order cancelling the additional truck granted J. R. Lingo under Special Commodity Permit No. 13435, a copy of which order is attached hereto and marked Exhibit We. “On the 19th day of September, 1938, the Railroad Commission entered its order amending Special Commodity Permit No. 13435, a copy of which order is attached hereto and marked Exhibit “D” . “On the 5th day of September, 1939, 3. R. Lingo, ap- plied to the Commission for a rehearing and a restitution of his Special Commodity Permit No. 13435~,as it was origi- nally issued to him and for the Commission to set aside its order of September 19, 1938, amending said permit, a copy of which application is attached hereto and marked Exhibit “E” . Wn the 21st day of December, 1939, the Railroad Commission entered its order denying application ,of J. R. Lingo, which is attached hereto and marked Exhibit “g”. Said order of denial is attached hereto and marked Exhibit “p .  .: . . Railroad Commission, page 2 (O-3419) “On the 10th day of February, 1941, J. R. Lingo filed a new application for a restoration of his y original Permit No. 13435, issued by the Commission on the 11th day of January, 1936, and a copy of that appli- cation is attached hereto and marked Exhibit “G”. “As will be revealed to you by these various &hi- bits, the Railroad Commission made an error on the 11th day of January, 1936, and granted J. R. Lingo far more authority than they intended or that has ever been the policy of this Commission to grant anyone,” .4s shown by the exhibits mentioned in your letter, the original order granting the permit authorized the hauling of certain commodities “to and from all points in Texas” and the permit was issued accordingly. We have inspected the applica- tion upon which such order and permit were based and we find that the application sought the authority to thus operate. The order of September 19, 1938, purported to correct and amend the permit theretofore granted and directed the issuance of an amended permit to transport such commodities “from Fort Worth to all points in Texas and from all points in Texas to Fort Worthe. An amended permit was issued in accordance with such order of September 19, 1938. In Exhibits “Et’ and “G” mentioned in your letter the permit holder contends that he was never noti- fled of any such contemplated action on the part of the Commis- sion and that he was never given an opportunity to be heard upon the question of thus amending and restricting the permit which had been theretofore granted to him. You request our opinion in response to this question: ‘#Did the Railroad Commission have authority and jur- isdiction to amend its order and the permit of January 11, 1.936,thus taking from J. R. Lingo authority, which he had enjoyed from January 11, 1936 to September 19, 19381" We also have a letter from your Mr. B. L. Templeton, Examiner, under date of June 5, 1941, advising us as follows: “I am unable to find from our records that J. R. Lingo had notice of the proposed action of the Commission with respect to the amendment of his Permit, which was dated September 19, 1938. I am unable to find that a hearing was held or that evidence was taken. “Mr. Bryan Bell; who wrote this Order is employed by the Railroad Commission, and I have discussed the mat- ter with him and it is his memory that be wrote the Order of September 19, 1938, amending Special Commodity Permit No. 13435 on instructions of the Railroad Commission with- out notice or hearing and no evidence of any nature was a’ - . Railroad Commission, page 3 (O-3419) taken. -. “It is my judgment that you should assume that J.R. Lingo had no notice of the proposed action by the Commls- sion with respect to the amendment, that no hearing was held and that no evidence was taken.” The record seems to indicate the correctness of the conclusion drawn in the last paragraph of Mr. Templeton’s let- ter and for the purpose of this opinion we shall assume that J. R. Lingo had no notice of the proposed action by the Commis- sion with respect to the amendment, that no hearing was held, and that no evidence was taken. Section 12(b) of Article 911b, Vernon’s Annotated Civil Statutes, the Texas Motor Carrier Act, reads as follows: “The Commission at any time after hearing had, upon notice to the holder of any certificate or permit and af- ter opportunity given such holder to be heard, may~by its order revoke, suspend or amend any certificate or permit issued under the provisions of this Act, where in such hear- ing the Commission shall find that such certificate or permit holder has discontinued operation or has violated, refused or neglected to observe the Commission’s lawful orders, rules, rates or regulations or has violated the terms of said certificate or permit; provided that the holder of such certificate or permit shall have the right of appeal as provided in this Act.” The attempted amendment of the permit was not made in pursuance of Section 12(b) and cannot be sustained thereunder. In that section certain grounds are set out upon which the Com- mission may amend a permit or certificate. But, even where the grounds therein mentioned are believed and are alleged to exist, an amendment is not authorized without giving the permit holder an opportunity to be heard on the subject of such pro- posed amendment. Obviously the purport of the amended permit was to greatly restrict the operation in question, it was re- duced to perhaps a rather small fraction of its former extent. Likening the original order granting the permit to a judgment, it could not be so materially altered without notice after the expiration of so long a time, if at all. See 34 C.J. 246; 25’ Tex.Jur. 538-539. Assuming the validity of the original permit, it is our opinion that the order dated September 19, 1938, attempt- ing to amend the permit was erroneous and that it would be set  V , Railroad Commission, page 4 (O-3419) aside upon an appeal conducted in accordance with Section 20 -.of said ktlcle 911b. Yours very truly ATTORNEYGENERALOF TEXAS By /s/ Glenn R. Lewis Glenn R. Lewis, Assistant APPROVEDJUN 14, 1941 /s/ Grover Sellers FIRST ASSISTANT ATTORNRYGENERAL APPROVED: OPINION COMMITTEE BY: MB, CHAIRMAN GRLtlh:wb

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x...:::/ 2 OFFICE OF THE ATTORNEYGENERAL OF TEXAS AUSTIN Oeme, Fish and Oyster Conmhai~n Austin, Texas Oelatlemenr We have your requ loa on the above questioas, whiah reads 08 f owing quent&ul is crateof looation bss r, may the loaetor lapse ondl%itrinthOFOSd&de~- y notifying ths @ame, Pi&i and of hi8 deslm to do so? tifylng the oiiJB6, Ol6h an& oyetsr Com.bslon of his desire to Lap88 ekportion of bin W and by frrrnlshingthe proper field notes of a aompetaat survep~ deseribiag the portion desired to be wi#dMWa? "2. If the maaver to either m6atian of the PlrUi qttestioaia ia the affimtiVe, aSg Q POF- j tiw of any lo&am be dxwpped, Without MaW. m O&me, Flrh and Oyatep Commlssion, Page 2 payment au suah portion, after annual rental payment haa beaome due. "3. In the event a locator is issued a certificate and the spouse of such locator is likeviae Issued a uertiflcste on a separate location, pay one of them lavfully retain both loo&ions upon the death of the other v3mn the total aoreage of the locations DO held totaL more than one hundred gapes? “4. If the amver to the third qusntlOn in in the negative,my tho livtng spousere- ta in luah portionof the tvo alaims au vi11 equdnotmorethanone hundredamest" The statute8 controlling these mtters are Artiolsa 4035-4041, inolusive, Revised Civil Ststutes of Texas which We quote in full: 'Art. 4035. Any perma vho ir 8 citisen of the United States or w domstio oorpon- tlon shall have the right of obtainiryla lo- oatioa for planting oysters and making private oyster bedo vithin the public vaten of this State, by aakiag writtm 8pplioatien to tb Corrissioner desoribing the loeatloa desired. A fee of tventy dollara eash mst aceow lmoh appllaatian, *Art. 4036. When the appliaation and fee provided for in the preceding artlole have been reoslved by the Comissloner he shall examine thoroughl the location desired, an soon as practioabfe, vlth tongs, dzwdge or any otheg erticient meann. If the same be not a natural oyster bed or reef, and exempt from loeatlon by any atiicle of this obapter, he ahall have the looation surveyed by a c-tent awve~ or* In mklng said location, said suweyor shas1 plant two Iran stakes or pipes oa the shore line nearest to thy proposed location, one at es& end of the proposed loaatlon, whi& said stake8 or pipee rhall be not 106s than tvo la&or ln diameter, aad be eet at least three feet tithe groxtnd. Said at&s8 or pipes 8hrll Came, Flab 8nd Oyster Commission, Page 3 be placed with referems to bearings of not less than three netural or permanent objeete or land marks. And the looator shall plaoe and maintain under the dlreatlon of the Corn- missioner 8 buop at eaob aorner of hL8 oyster claim farthest from the lsnd. No person shall loarts VPteP or ground oorered vlth w&tar for planting oysters along knj bay 8hore In t&l8 State, nemrer thmn one hundred yards from ShOPO. "Art. 403-r. The ColmlI8slonershall give the loaator a oertiflcate signed and sealed by the Comls8loner. Suoh aertlfioate 8hall show the dete of appllcatlon, date of mrvey, number, desorlptlon of metes and bounds with reforencre to the points of thn fmmpm8S mnd n&tug&l mnd artiflolrl obfeots by whloh said location aen be found fmd verified. The loaator shall, be- fore suah aertifloote is delivered to hia, pay the ComIarloner survoyo~~~ fees end all other expenses conneoted with ostablI8hIng rush loea- tion. If 8ueh sums, as oosts of the location and establishment of the olalm, are less than the tventy dollar8 paid to the Gotissioner, the dlfferenoe In amount 8hall be returned to suah looator by the C0mIrsIoner. If such expeare8 ammat to more then tventy dollars, the deflolt shall be paid to the CoamIssIoner by t.he looator. "At tinytime not exueodlng sixty days after the date of suoh oezrtiflosteof locstlon, the locator must file the same vlth the county clerk of the aounty In vhlah the loaotlon 1s situated, vho shall reaord the same In a well bound book kept for that purpose, and the orlg- lnel vlth a ~ertlflaate af registration shall be returned to the owner or looatoxq the olerk shall maeire for the reeordlng of suoh aertl- ficate the seam fee as far hecordlng deeds) the original or oertlfled copies of such 0e)f- tlfloate 8hall be adrpiasibleIn evldenoe W%&P the emme rule governing the admlssloa of deeds or certified eoplee thenof. Oeam, Fllrhand Oyster hUi88iOn. p-e 4 “Art. 4038. Any person who shell be granted e oertifioate of looetion as pro- vided for Fn the pPeoedlng artiole shall be proteoted in hI8 posserrslonthereof against tPeagms8 t&Peon In like IMnner ma freeholders are protected in their pO88e88iOn8, 88 long ma he maLntains all stmkes end buoys In their origInal and aorreat position, awl oompliee vlth all lavs, Pules and regulations govern- Ing $he fish and oyster industries. ‘Art. 4039. lo person, firm or CSOP~OP~- tlon 8ha.U ever own, lease 0P othemrlse aontPo1 more thmn lu hundred acr438 of land aovered by vmter, the ears being oy8ter loo8tlons awler thi8 Ch&ptOT, Mti Vithin the publie V8terS Of this 8tmtej aad mny person. firm or corporation thmt now hold8 more than one huMPed eo~es of oyster locatl0n8, 8halJ not be permitted hePe- mfter to require, 1eese or othervise o~ntrol m0r.j pr0vid.d that Do ooppo%‘atiO8A shall 1-80 or aontwl uy suah lunlr oovend by vmtor un- less suoh corporation 8hal.lbe duly Fneorpomted under the levs of this State. "Art. 4040. Any person. finn or eorpoPatlon rho ha8 SOb\LWd, 0F my henmftor seewe 8 loaa- tion for a privmto eystor bed in this Nate, shall keep the tW0 inW St&e8 Or pipe8 aad buoy8 aS provided fOP by l&V, fn ptiOe, and Shru pPe8ePve the marks SO 10% 8s he 18 the leerme of said 10MtiM, and thi8 #&h&ii 8ppiJ 8180 tO~M7 P@FSOn, fina oP aorporetlon 8aqulPIng any loartlon by pug&aao or transfer of any nd~ture,and seld lo- emtier or the e88lgnoe of any looatar shell have the right to fmoe s8ld location or ury put thePeofj provided that sold fen08 daee not obatruot Mvlgatlom through OP Into a Pegular ohanna or cut leading to other pub110 waters. “APt. 4041.The mfner or loaator of privets oyster bsda uader the fOPeg0I.W POV%S~OIUJ ha.11 not be nqulred to pay cry rents.18on SU0h lOWA- time fog a pejiod of five yews, or till.8wh tw 8s he shall begin to market or sal2 OystePs O&me, Fish and oyster COMR~~S~OA, P&go 5 from such location or bad. Uh*n such locator shell begin to sell or mket oysters from such location, he shall pay the State one dol- lar and fifty dents per mare per annum and tvo GOAtE 8 barrel on oyster seles. Fellun to pay suah rental by the first day of Marah of each peer shall snnti and be 8 ?OrfOIt\llu, of his lee8e. An& if oyster8 era not marketed or sold from such loaetlon vlthin five ye&M from the dete of looatlon, SUOh location shall beam void.' The above quoted stmtutes make no provision for the lmpse of 8 part of 8 loaatlon. Artlole 4038, supra, proteots the rlehts of tha loaetor in the m08aession of his laeatlou only “%~~iong 88 he &AtbiA8 bll-st8kes end buOya in their orl@nal and oorraot wsltlon." It veuld eppemr, therefore, hat the Only method VhenbY a 1OOAtOr ray SUlTeAder 8 p&rt of his looetIon~ 18 to make mp~liaetion for i new oertlflcite for the 8&%ler exwi in the SLW manner by vhieh he obteined the orIglnal larger 1008tIOA. our mnmcer to both p&rtS of your first qAe8tiOA I8 in the nogatiw, vhioh m&k88 8a anaver to YOUX'88OOAd qil*StfWl-6e888l7. POW t0 8 6OASid8F8tiOA Of YOUl third QU88tiOA. we tUl'll Artlole 4039, EUpra, UpPeaS%y lirit8 t0 mot more than OSLOhrtn- dred mare8 the lree of oyster looetIon8 whiah my be ovAed, leased or otherwise aontrolled by any one pe~*Otl, flrr or eor- pOP8tiOA. Where m spouse,eeqtins by tnheritmoe, oyster loua- tion8 vhlc.htogether 01th those prwlou~l~ OvAed by him total more than one hundred eore8, he my not be penrltted to retmtn more than one hundred 8OPe81. In mob oa80, he laapobtrin AQV oertifiartes embraaFrrgPWtS of both al8iU8 not totelling QePe thm one hundred more8 in the manner -o&ted LA our wmver to your first que8tIon. YOWS very truly

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4143070/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN  It ia to be noted al5o that Section 3, quote4 above, *peciflcallyprovides tit such resident listing l~canee slQ11 not be rsfi;iredof any ;sersonunder 17 ysars of fie cr of any ;eraon ffab!ng in the aaunty bf him resi- aenos an lands which he owns or upon whloh he resld,s, or of any arson whc halis an artlricial lure llcrn68 or a (~cwsetoial fiahemma*s liaense. Sua provlsioas of Section 3 40 not exten4 to &or insluds the watsrs OS the Colore40 alver, ner Inks Leks nor Bwhanm Lmke, In aiem o? the apsoific terxs of the abwr quot.& ALOt,you are rssgsctfull,y 84rma that it is the OpiAiOll of t&l8 dspartoent that the exsxptionssot forth in sai4 rst, lpuetbe &YM efrwt. A person living in any OS tha coun- ties ns6B4 in the Act aannot be Pepulre4 to puroh6ss the llosnee rrquired by Seetlon 8 in or4.r to hunt upon his mn land af ugoa laa4 upon &oh hs rs814es, A persoo who hu puro~hase6 a resident buatlng llesnee or a non-rssfdent hunting liesare in any aouaty ai Texas ueniiot be thmreoftsr repulred to purohrs a llosnae mquirod by 8eotiaa 8 in em& r te h u ntIn l4 of the aountias oemed la the Ast, nor will any person under 1%'years oi ags be rsqulred to purohassthe lloense mquired by Seetion 2 in er4er to hunt in anjrof th6 aaunties nam4 in the A6t. A perwn li,log in any of the countlea nimed in the&t oannot be req~~~4 to pwdwss a liosose requlrrd bf Seation S, h order to fish u>on km4 OWM~ by 8ueh person or u.Wfi whlah hs reuidsS, or io the Inks I&e OP Buohawn Iake. A perron who ala1 lure or oommroial fielwman*8 after bs rsqulm4 TV gurehsse (L required by Bestion 3 in ordir to firh in any~af C,hesoun- ties n%tuedin tha mms or in the Colorsdo wler, &i!U me or Buahown Lake, nor oan any person un4er I7 years of age be reqAre4 to ;?urohaes a rasldant fishing Ueense required by zieetion3 in udsr to ilsh in a4 of ths seaatiss ~med. m

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4143072/

OFFICE OF THE ATTORNEY GENERAL OF TEXAS tc AUSTIN 0-G.- -- sonorable Cbarley Lockhert, Pag0 2 In oux apl.nLcm No. O-1332vo held f&sateuoh otai- tinplat4xp%nsafknde rpcjrbe uuea aw tilepryalait4f omplogse%4 Jn additialto thooa oboes solrriell4r4 expremly St.#&z@fl. nelace,the 4Oproplatlai for caatingaat4xpenbM My be UBBd t0 JMlj #OBKWlO t0 ~Z+OPltZ thes4 64FViU46. ti th&t W 4&S- loa ~4 held that under the krm of prneprph (b) of the title "salaryand other prcylsicam"ba the weral rldcr to the ape propriatlanbillmvbuwreumia ptovxaedforapwtlaulu Ltaa of expense,that sea is all that ir intasdedto be wul- ve &o not b4lioy4twt th4 lut PIL*Ytver, mnticmad bald& le bppllarblehere is t&w a'ow~othat ealy the mm of $360.00m year ie to be e-den tn payl.tqthe for his pxt tlmm employmat. In othe v4rd4, me*re+nger-porter as v4 imderrtandyour lettex,him mlary fm the pwfoammcre o? th444 aemi443 ia not bafng incrers4&ox snpploaeut&. on the oth0r hand, it i8 oux mdnr4hmUng t&t you r&ply rl4h to pay th0 mm% lmn to perform aamaar BOxviO8B rt tllmr not 6OYemdbyhlS px6s0nt~leyYlI0nt. fn~ro~~theeaploy- laentend paylmxlt whloh Ton proporeIs not soxbM4m by m gnph (b) of tb title aislmym& other pwvisiano" in the pramratdap4rtnt4at4l approprl8tim bill. fnour opiaiarNo. 05607vo held tbatanoym, .8x, ~0~0 and t-t 8p4citbiiat in 04 0r th4 8t4t.4 4i~yasl?l institntlaas oouldnot hold the mam pemititmia awther &tat4 inatltutian nn&br S54titm 33 of Article l6, 4f the atate OanetLtutrca vUoh pmtiderrr "The aGeountsIlg OfflOem of thla ate4 4lmlY.neither&4v aor pey 4 varrentupeathe Tmaaury in favor of any pwwm, fox 8alU'Y GX G~MtifXl aS wt. OffiC0X6l'4ml;ltO4, whc holAB at th0 sups time Bny othex off144ox posit&enof hcmr, tru~ats or profit, vndea this state or the IJhited statea,eraapt m pretrotib- od In thls CenBtitutl6n: E ~amrable Char147 L&kbIbrt, P4@ 3 The ~~xogrlatim o? $360.00 per year is explunsly for p8xt tiars46xplo76mnt.Wethinkltwas oontes@atedttblrt 4 detlnite psrt of the day shouldbs set aside for tIw mssasn- g4r-porterto s4rve. It is oot4d that the mm lpproprlrt4d16 oae-half the amount 46~6317wmwxriated in ottwr parts or the sill ror a ml tiraeappioy46mr0nning sirliu 64~~1046. youxootlan in requlringhiatovorkintho~e~Ooll6 sad CI- llerlng h&a of 6n7 duties under that 4nplo)aantin the mmings is mtlml7 proper. The rsseuger-poxter le wlea no oblige tiom to 641994 ok hold himself in ~44dln46sto serve \mdor his 4nrplo7mmt8s swhmess4ng4r-porter during the urmlngs. His vorking rt o&l tmes fn the momlqgs vi11 not oarfllot tith his rrtemoai duties. Vlth 6pwl?lc r4rereno4to the Quotbdaeo- tial or th4 state Ccn6tltutlm, V4 slsp 886lme tImt his mgulm aftemoaa 46Iglo7mt oar6tltut46him 6aj*4ppOm44" 0r th4 06. f3ugrPt OS 8 po6itidaOS . . . p0rit. The problbltlatIS l@nrt the holw of mor4 t&n a14 suoh gocritlar.In his w~vark vouldbeb4anrgszrt, offlcer orappointn, tkm holder or a positiori0r ham, trust Or pr0rity Th4 asuvst of thotae to vhioh he ~0uld appromh vould b4 the ocoupat of a *positiaa*or prorit. And, v4 do not bellevetbrt tbo 4asu61 4aplo7lsaatof the msa rt lmegulu intervalsvoulu oa%stitut* hi61the holder of8 "poaltlat." fhetermdanotes ~tl4ast8oae d4gr44 of p4x-mamoy ox regularity,vbloh v4 mWWsad do46 not exlmt hezw. FrQE the o&a0 or lcxelghY. BeaX& or Cho64a ~9old4~4, 40 A. 625, by tkw Rw Jersey Suprcrw Couxt, ~4 ‘TIyt atrtute teat8 017 th064 perrosa Iv”or 'a poaltlaa;" aad vo think vho hold 'an oiY'ia4 to the vlrvr h4xwtoiozu4xp#684U of t&se term (Iavisv. Jer64? cit7, 1 Ilf.J. r,nv,240, 1.7Atl. 112; StcrvrrtY. Borrd 7ll.J.Sup.) 38 A. 8421, the applayrat o? ,tho a+4lirtordldnotpl444himln elth4r4aofYlo4 ox 8 poatlaa, vlthln the purYl0vor thet iwtute. '.' He vea to vork b7 the tleyol7, and the 6orvlaH to.' be renderedbyhlmverio ms~el7 suahes, ia tlmllpe oihls trade,migbtbe dlxwted ?romtiastotlms by his superiors." mm 16 8birr0~nt6mmti~ r~061th0604~ltih~hioh ve v4re ccnoerned in opinlcn fo. o-2607. ~4 mover roux ques- tion la the r??Mmtlwr. our optnlammight be diff4r4nt if his Ga5 ,u ATTORNEY GENERAL OF TEXAS

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4143074/

OFFICE OF TiiE ATTORNEY GENERAL OF TEXAS AUSTIN -C.- *-- state Board of ihfrdraesere and 0Xl!W3tO1~&i Litt~efleld Bu1l.d~ Auatln, ‘iexasi \ Dear Mad8l8: Attentions e Board of Co~tolo~ dated b&d%’ and wmsiderad by thfn dqartment. Wi of the State of 2cota8 th, end Brs. Stone’8 ed to the SEerrateior ha8 not been Isubnlltted as of thla date. Therefore, I should like to have an opinion Srom your Deepaptmtant a8 to nhether or not maa Mona irr qoallflsd at thi8 tiw to bald 0srf0+3 as a msmber of the state Board of CosnKitology.  392 State Board of Ralrdra8ser8 and Cosm8tolo~lrts, Page 2 “AHiole 734-b, Seotion 4 of the Rsvieed Civil Statutes of Texas prescribed the qualffl- cations of mtmbemr of the State Board of Coame- tology, and the term for vhlch they shall hold OPilCS . It also sets forth thnt each member of ths Board shall ssrve Tar a term ot six ysars, or until hln or her successor 18 appoInted and quallfled. The fact la that Mrs. Stone, being appointed to fill an unexplrsd torm and bavlng qualified and taken the oath of offloe, but vhoae name vaa not submitted to the Senate with- in ten days after the Senate oonvened, as re- q,ulred by ths TOXBSConstitution, doss not knou whether to continue to serve until her successor 18 duly appofnted and confirmed, or that by virtue of the Conatltutlonal provision, '&oh sets forth that ths CIovornorshall submit vlth- in ten days the zmmes of his appointeea to fill vacanaies on State Boards, vould control." Section 4 of Article 73bb of Vernon*s Penal Code pro- vides as follovsc "Sea. 4. There is hereby areated a Stats Board of Bairdrssse 8 and Cosaetologlsts aon- slating of three (3 f tadbers, saah ot vhom aball be a balrdresrer or comaetolo let, as definsd in thtr Aat, with&i Wty s 30) d&y6 after this Aot e&all become effeatlve, the Cfovsrnor shall appoint the members OS’such Board ntah members abnll be at least twenty- rive I 25) year8 of age and shall have had at least five (5) years praotical eqxwlence In the majority of the praotloeo of halrdresofng or aosnmtology in Texas an4 &all be a oitlren of the State: a~ member or the Board shall be a member of nor affiliated vith sny school.oi halmlreosing or oosmetology vhlle ia offlae, nor &all eny tvo (2) member0 of said Board be graduate8 ot the same sahool, “(a) ‘Baoh mamber of said Board shall servo a term of six (6) years, or until hln or her suaaessor 18 appointed and qualified, except In the ease of the first Board, in which case one member ahall be appointed to  . 393 state Board of Xalrdreoser8 .$nd COSlSStOlO~f8t8~prss 3 serve for a psrlod of lx0 (2)‘y8S~Sl a aeoond member shall be appointed to serve for a period of four (4) rears; end a third maubes Sk11 be appotited to SSP'Z8 for a period of six (6) years) ad la WC- ing such appointments the &vemr Shall deslgnata the respoot~ve pOSitiOn to be f'll1e&by au& agpolntment. The nemhers of 8ald Board shall tako the oath pxmrlded by lav for p&Me offlctals. Vacancies Shall be tilled by tha Oovernor for the unsxpired portion of the term." It vfll be noticed that Bectlon (a) of the above quoted StatUtS exprear1y pSovide8 that a member of thamard shall serve for a term of six years or until his or her 8uuaessor 18 appoint- ed ad qualified. Izkour Opinion Ilo. O&34, the smm questlotius8 disaues- ed at length and a careful revleu oi the constitutional.and stat- utory provlslon8 vlth reierenue to the oflice of Sscretary of Stat0 van therain givaa. We believe that the same conmrtltutional JWOViSiOl%S and the holdlngthorelA csnbe eqwlly Rpplledtogour Prapositlon. A oopy of Opin%on Sfo.O-134 la being enolos8d here- vlth for XouX'infOl?Satl~ and aS8lStallOe. You al-0thmefoFe l’eS&#ttt~~ advlaed ill amver to your question that a member ot the State Board 0S Ealrdresaers and CoamMiolo~18tsr to-vttc Llllle Stone ir entitled, under the COnstltutlon and &lVS Of this I)tate, to aontinw to serve ln her oftlalal oapaofty 8s a member of that B0ard Until such time as her 8uocell8orlo appointed and duly qualiSle& SirieereoelvLng our request ue have been 8dvUed #at the nosrinatlorrotNr8. L l.d1s 8tons ha8 heen SUbnrittIRd by Oovsmor OQanleltothe senate ro~oonflrmatfon. If the&mate ahould Fehr843t0 OoaiiXW OUQh8ppOiptUWSltthE2'UbOy Ft?jltating SW'S, thE!l Ye call ~yow attention to our Opinion plo.O-3343 in whfch ve held e&ion of a n~ee the &mate oreated a vi%canay in QOpyof Qhilon so. bg -3343 ia ell~108,ed for you' in- We trust that we have Nly answered youF irxm%rY. APPROVED APR 18, 1941 n Yours very truly / ATTORXEY cE3ERAL OF TEXhS BIK ATTORNEY GENERAL RFrcld brcCrackon mRs Asalstant

01-03-2023

02-18-2017

https://www.courtlistener.com/api/rest/v3/opinions/4127958/

TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California DANIEL E. LUNGREN Attorney General ______________________________________ OPINION : : No. 96-403 of : : November 21, 1996 DANIEL E. LUNGREN : Attorney General : : CLAYTON P. ROCHE : Deputy Attorney General : : ______________________________________________________________________________ THE HONORABLE MALCOLM HUNTER, CITY ATTORNEY, CITY OF RICHMOND, has requested an opinion on the following question: Is a city required to pay for a chemical test ordered by a California Highway Patrol officer after the officer has arrested a person in the city for driving under the influence of alcohol or drugs, if the special reimbursement account established for payment of such tests has become exhausted? CONCLUSION A city is required to pay for a chemical test ordered by a California Highway Patrol officer after the officer has arrested a person in the city for driving under the influence of alcohol or drugs, if the special reimbursement account for payment of such tests has become exhausted. ANALYSIS This request for our opinion concerns arrests made by officers of the California Highway Patrol ("CHP") for driving under the influence of alcohol or drugs ("DUI") offenses which take place within a city's boundaries. In order to establish the elements of the particular offense, the officer will direct the driver to take a chemical test for alcohol content or the presence of drugs. (See Veh. Code, '' 13353, 23155-23159.) The issue to be resolved is whether the CHP or the city must pay for the tests in such circumstances when the special reimbursement account established for payment of the tests is depleted. We conclude that the city must pay for the tests. 1. 96-403 Penal Code section 1463.14, subdivision (a)1 provides: "Notwithstanding the provisions of Section 1463, of the moneys deposited with the county treasurer pursuant to Section 1463, fifty dollars ($50) of each fine collected for each conviction of a violation of Section 23103, 23104, 23152, or 23153 of the Vehicle Code shall be deposited in a special account which shall be used exclusively to pay for the costs of performing for the county, or a city or special district within the county, analysis of blood, breath or urine for alcohol content or for the presence of drugs, or for services related to that testing. The sum shall not exceed the reasonable cost of providing the services for which the sum is intended. "On November l of each year, the treasurer of each county shall determine those moneys in the special account which were not expended during the preceding fiscal year, and shall transfer those moneys into the general fund of the county. The county may retain an amount of that money equal to its administrative cost incurred pursuant to this section, and shall distribute the remainder pursuant to Section 1463. If the account becomes exhausted, the public entity ordering a test performed pursuant to this subdivision shall bear the costs of the test." (Italics added.)2 Here we are given that the special reimbursement account created under subdivision (a) of section 1463.14 has become depleted in a county, a CHP officer has made a DUI arrest within a city's boundaries, and the officer has ordered the driver to take a chemical test. The statute requires "the public entity ordering a test" to "bear the costs of the test" when the special account is depleted. In examining these terms of section 1463.14, we are guided by well established principles of statutory construction. "When interpreting a statute our primary task is to determine the Legislature's intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal. 4th 821, 826.) "Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]" (Dyna Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1387.) "`The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.'" (Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal. 3d 245, 268.) Applying these principles of construction, we find that section 1463.14 does not recognize the CHP as a public agency responsible for ordering chemical tests. Rather, the statute refers to "the county, or a city or a special district" as the public agencies for which the tests are 1 All unidentified section references hereafter are to the Penal Code. 2 Section 1463 provides for the distribution of "[a]ll fines and forfeitures imposed and collected for crimes . . . ." Vehicle Code sections 23103 and 23104 govern reckless driving, while Vehicle Code sections 23152 and 23153 govern DUI offenses. 2. 96-403 performed. We construe section 1463.14 in light of section 1463, which contains the following definitions applicable to section 1463.14: "(c) `City arrest' means an arrest by an employee of a city, or by a California Highway Patrol officer within the limits of a city." ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "(e) `County arrest' means an arrest by a California Highway Patrol officer outside the limits of a city, or an arrest by a county officer or by any other state officer." In 75 Ops.Cal.Atty.Gen. 117 (1992) we examined the language of subdivision (a) of section 1463.14 prior to its recent amendment. At that time the statute did not contain the language: "If the account becomes exhausted, the public entity ordering a test performed pursuant to this subdivision shall bear the costs of the test." We concluded: "It follows, therefore, that so long as funds are available in the special reimbursement account, no particular entity is required to bear the costs of the DUI chemical tests. However, the special account may at times be inadequate in providing the required reimbursements. In such situation, we believe the public agency ordering the chemical tests will be liable for their costs." (Id., at p. 120; fn. omitted.) The footnote respecting this conclusion stated: ". . . [A]s to arrests for DUI offenses by state highway patrol officers, we believe that arrests made within a city are to be attributed to that city and those made in unincorporated territory are to be attributed to the county. (See ' 1463, subs. (c) and (e).)" (Id., at p. 121, fn. 2.) We thus explained in our 1992 opinion that when a CHP officer is ordering a chemical test in a DUI case, the test is being performed for and on behalf of the local public entity, city or county, for purposes of sections 1463-1465.6. The statutory scheme simply does not contemplate a CHP officer ordering a chemical test on behalf of the CHP. When section 1463.14 was amended in 1995 (Stats. 1995, ch. 9, ' 1; Stats. 1995, ch. 318, ' 1), the Legislature codified our 1992 opinion with respect to which entity must pay for chemical tests when the special reimbursement account becomes depleted. In so doing, the Legislature recognized that in DUI arrests made by CHP officers, the chemical tests are ordered for the city or county, not the CHP, for purposes of the statute. For example, the report of the Assembly Committee on Public Safety for its hearing of April 18, 1995, stated with respect to the proposed amendment: ". . . The state does not pay for costs associated with California Highway Patrol drug and alcohol testing. By statute, these costs must . . . be paid for by the County or cities, depending on the location of the arrest. . . ." 3. 96-403 We conclude that a city is required to pay for a chemical test ordered by a CHP officer after the officer has arrested a person in the city for a DUI offense, if the special reimbursement account established for payment of such tests has become exhausted. ***** 4. 96-403

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