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https://www.courtlistener.com/api/rest/v3/opinions/4127965/ | ATTORNEY GENERAL oF TEXAS
GREG ABBOTT
February 27, 2012
Mr. John P. Maline, Executive Director Opinion No. GA-0914
Executive Council of Physical Therapy
and Occupational Therapy Examiners Re: Whether the Board of Physical Therapy
333 Guadalupe, Suite 2-510 Examiners may provide the social security numbers
Austin, Texas 78701-3942 of its licensees to a nonprofit organization
composed of physical therapy licensing authorities
in the United States (RQ-0996-GA)
Dear Mr. Maline:
You ask whether the Board of Physical Therapy Examiners (the “Board”) may provide its
licensees’ social security numbers to the Federation of State Boards of Physical Therapy (the
“FSBPT”).[ Alternatively, you ask whether the Board may provide the FSBPT with the last four
digits of licensees’ social security numbers. Request Letter at l, 7. You state that the FSBPT is a
nonprofit organization of physical therapy licensing authorities in the United States, which maintains
a national database of disciplinary action and licensure information Id. at l. As aprivate, nonprofit
organization, FSBPT is not a governmental agency. You further inform us that the FSBPT maintains
a national examination program for physical therapists and assistants Id. at 2. According to your
letter, the FSBPT requires applicants who wish to take the exam to provide a social security number.
Id. You also state that licensing authorities in multiple jurisdictions provide the FSBPT information
about disciplinary action taken against licensed therapists. Id. at l. You explain that the Board
currently provides the FSBPT with information about physical therapists licensed in Texas, but the
Board does not currently share licensees’ social security numbers with the FSBPT. Id. You assert
that providing social security numbers to the FSBPT would facilitate the exchange of licensees’
disciplinary information and also advance the joint efforts of the FSBPT and its members to detect
cheating on the physical therapists licensing examination Id. at l-2.
An administrative agency such as the Board has only powers expressly conferred by the
Legislature, along with implied powers that are reasonably necessary to carry out its express
functions and duties. Pub. Util. Comm’n of Tex. v. City Pub. Serv. Ba'., 53 S.W.3d 310, 316 (Tex.
'See Letter from John P. Maline, Executive Director, Executive Council of Physical Therapy and Occupational
Therapy Examiners, to Honorable Greg Abbott, Attorney General of Texas at l (Sept. 20, 2011), https://www.oag.state
.tx.us/opin/index_rq.shtml (“Request Letter”).
Mr. John P. Maline - Page 2 (GA-0914)
2001). The Board’ s statutory purpose is to “regulate the practice of physical therapy in this state to
safeguard the public health and welfare.” TEX. OCC. CODE ANN. § 453.052 (West 2004). The Board
is responsible for issuing the license that authorizes a licensee to practice physical therapy or practice
as a physical therapist assistant in Texas. Id. §§ 45 3.20 1 (a), .202(a), .208. The Board also
investigates complaints about license holders and administers chapter 453 ’ s disciplinary provisions.
Id. §§ 453.107-.108, .351-.452. No provision in chapter 453, however, authorizes the Board to
disclose its licensees’ social security numbers.
However, the Occupations Code does specifically address applicants’ and license holders’
social security numbers_and the Code deems them confidential as a matter of law:
The social security number of an applicant for or holder of a license,
certificate of registration, or other legal authorization issued by a
licensing agency to practice in a specific occupation or profession that
is provided to the licensing agency is confidential and not subject to
disclosure under Chapter 552, Government Code.
TEX. OCC. CODE ANN. § 59.001 (West Supp. 2011). Under the Public Information Act (the “PIA”),
an officer or employee of a governmental body such as the Board is prohibited from distributing
confidential information TEX. GOV’T CODE ANN. § 552.352(a) (West 2004). Thus, section 59.001
of the Occupations Code prohibits the Board from disclosing its licensees’ social security numbers.
You suggest that sharing social security numbers with the FSBPT would not constitute a
disclosure to the public because of the FSBPT’s role and purpose as an organization of physical
therapist licensing authorities. Further, you cite to the FSBPT’s privacy policy and suggest that the
organization would maintain social security numbers’ confidentiality Request Letter at 5. This
office has recognized that a transfer of information within a governmental body or between
governmental agencies may not constitute a public disclosure under the PIA. See Tex. Att’y Gen.
ORD-667 (2000) at 3-4 (concerning intergovernmental transfers between governmental bodies);
Tex. Att’y Gen. ORD-666 (2000) at 4 (concluding that a municipality’s disclosure of certain
information to citizen advisory board, when the advisory board was appointed by the municipality
and acted essentially as municipal employees performing a municipally-delegated function, was an
intragovernmental transfer and not a release to the public). However, the FSBPT is not a
governmental agency. Instead, it is a private, nonprofit organization As a result, providing
applicants’ and licensees’ social security numbers to the FSBPT would constitute an impermissible
disclosure.
You also note that the Texas Board of Nursin g is authorized to disclose personally
identifiable information, including a social security number, to the National Council of State Boards
of Nursing. Request Letter at 2; see also TEX. OCC. CODE ANN. §§ 304.001(a) (West 2004), 304.008
(West Supp. 2011). You assert that the Board’s relationship with the FSBPT is analogous, in that
both national organizations provide services that assist a state agency to administer licensing duties.
Request Letter at 2. The express grant of authority to the Board of Nursing illustrates, however, that
Mr. John P. Maline - Page 3 (GA-0914)
the Legislature recognizes that it must expressly authorize a licensing agency to share personal
information about license holders with a national organization The fact that the Legislature has
expressly provided one licensing agency with authority to provide social security numbers to a
national organization but has not done so with respect to the Board, suggests that the Board does
not possess authority to disclose social security numbers to the FSBPT. See FM Props. Operating
C0. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (relying on principle of statutory
construction that the Legislature knows how to enact laws effectuating its intent). Although you
have extensively detailed why you believe such authority would be beneficial to the Board’s
regulation of the practice of physical therapy, administrative convenience does not allow an agency
to exercise a power that directly contradicts a statute. Pub. Util. Comm ’n of Tex., 53 S.W.3d at 316.
Consequently, we conclude that the Board is not authorized to disclose social security numbers of
license holders or applicants to the FSBPT.
You ask alternatively whether the Board may provide the last four digits of a license holder’ s
or applicant’s social security number to the FSBPT. Request Letter at 1, 7. Section 59.001 of the
Occupations Code makes the social security number of a license holder or an applicant confidential
and not subject to disclosure TEX. OCC. CODE ANN. § 59.001 (West Supp. 2011). The Code does
not carve out an exception for a portion of a social security number. lt would rewrite the statute to
construe it as allowing disclosure of part of the social security number. See Pub. Util. Comm’n v.
Cofer, 754 S.W.2d 121, 124 (Tex. 1988) (“A court may not write special exceptions into a statute
so as to make it inapplicable under certain circumstances not mentioned in the statute.”). We
conclude that the Board is not authorized to disclose the last four digits of a license holder’s or
applicant’s social security number to the FSBPT.
Mr. John P. Maline - Page 4 (GA-0914)
SUMMARY
The Board of Physical Therapy Examiners is not authorized
to provide the social security number or a partial social security
number of one of its license holders or applicants to a nonprofit
organization composed of physical therapy licensing authorities in the
United States.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
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/4127976/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-304
of :
: September 16, 1996
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE JOHN W. WITT, SAN DIEGO CITY PROSECUTOR, has
requested an opinion on the following question:
Does the designation "district attorney" as used in Penal Code section 633 with respect
to the overhearing or recording of conversations include city attorneys who prosecute misdemeanor
cases?
CONCLUSION
The designation "district attorney" as used in Penal Code section 633 with respect to
the overhearing or recording of conversations does not include city attorneys who prosecute
misdemeanor cases; however, such attorneys when prosecuting misdemeanor charges have the same
powers that Penal Code section 633 has granted to district attorneys to overhear or record
conversations.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme (Pen. Code, ''
1
630-637.6) "to protect the right of privacy of the people of this state" (' 630). Sections 631-632.7
1
All references hereafter to the Penal Code are by section number only.
1. 96-304
relate specifically to unlawful wiretapping and other forms of illegal electronic eavesdropping, with
section 633 providing exceptions thereto for certain designated law enforcement officers and
prosecuting attorneys. Section 633 states:
"Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney
General, any district attorney, or any assistant, deputy, or investigator of the Attorney
General or any district attorney, any officer of the California Highway Patrol, any chief
of police, assistant chief of police, or police officer of a city or city and county, any
sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a
county, or any person acting pursuant to the direction of one of these law enforcement
officers acting within the scope of his or her authority, from overhearing or recording
any communication that they could lawfully overhear or record prior to the effective
date of this chapter.
"Nothing in Section 631, 632, 632.5, 632.6 or 632.7 renders inadmissible any
evidence obtained by the above-named persons by means of overhearing or recording
any communication that they could lawfully overhear or record prior to the effective
date of this chapter."2
We are asked whether the designation "district attorney" as used in section 633 includes city attorneys
who prosecute misdemeanor cases. We conclude that although section 633 cannot be so interpreted,
under a statute in a different code, Government Code section 41803.5, a city attorney prosecuting
misdemeanor charges has the same powers that section 633 grants to district attorneys.
A city attorney's primary duties are to act as the legal advisor to the city and to bring
and defend civil actions on behalf of the city when instructed to do so by the city council. (See Gov.
Code, '' 41801-41803.) Additionally, a city attorney may prosecute misdemeanor criminal cases
which arise within the city under a variety of circumstances. For example, the violation of a city
ordinance may constitute a misdemeanor which the city attorney may be required to prosecute on
behalf of the city. (See 65 Ops.Cal.Atty.Gen. 330, 332 (1982); 20 Ops.Cal.Atty. Gen. 234, 236
(1952)). Also, although a district attorney generally prosecutes state misdemeanors wherever
committed within the county (Gov. Code, ' 26500), a city attorney may prosecute state misdemeanors
committed in the city if the district attorney consents. (Gov. Code, ' 41803.5.) In a charter city, the
charter may designate the city attorney as the "city prosecutor," having the primary duty to prosecute all
state misdemeanors committed within the city. (79 Ops.Cal.Atty. Gen. 46, 47-48 (1996).)
Accordingly, a city attorney, particularly in a charter city which has a designated city
prosecutor, may have extensive prosecutorial duties similar to those of a district attorney. The need to
obtain information in aid of misdemeanor prosecutions would be the same for a city attorney as for a
district attorney. Yet, section 633 fails to expressly exclude city attorneys from the prohibitions of
2
"The effective date of this chapter" was November 8, 1967. (Stats. 1967, p. A-3; People v. Carbonie (1975) 48
Cal. App. 3d 679, 684.)
2. 96-304
sections 631-632.7. The designation "district attorney" does not per se include city attorneys who
prosecute misdemeanor cases. (See 55 Ops.Cal.Atty.Gen. 151 (1972).)
Section 633, however, does not stand alone. Rather, its provisions must be read in
light of Government Code section 41803.5, subdivision (b), which states:
"In any case in which the district attorney is granted any powers or access to
information with regard to the prosecution of misdemeanors, this grant of powers or
access to information shall be deemed to apply to any other officer charged with the
duty of prosecuting misdemeanor charges in the state, as authorized by law."
Under the terms of Government Code section 41803.5, subdivision (b), an "officer charged with the
duty of prosecuting misdemeanor charges in the state, as authorized by law" is "deemed" to have "any
powers or access to information with regard to the prosecution of misdemeanors" that are granted to a
district attorney.
Does section 633 grant a district attorney "any powers or access to information with
regard to the prosecution of misdemeanors"? Obviously it does. By exempting a district attorney
from the prohibition against overhearing and recording communications, it acts as a grant of authority.
Those powers and access are thus "deemed" to apply to any city attorney "charged with the duty of
prosecuting misdemeanor charges in the state, as authorized by law." (Gov. Code, ' 41803.5, subd.
(b).)
Section 633 itself does not apply to city attorneys. However, Government Code
section 41803.5 does apply and has the effect of granting to city attorneys the same powers that section
633 grants to district attorneys. While the result would be the same by stating that the term "district
attorney" in section 633, in effect, may include city attorneys, we are not so construing herein the
language of section 633. Rather, we are interpreting the provisions of Government Code section
41803.5 to include the grants of powers contained in section 633 for district attorneys.
We believe that the terms of Government Code section 41803.5, subdivision (b), are
clear and unambiguous. "Where the words of the statute are clear, we may not add to or alter them to
accomplish a purpose that does not appear on the face of the statute or from its legislative history."
(Burden v. Snowden (1992) 2 Cal. 4th 556, 562; see also DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th
593, 601; Rojo v. Klinger (1990) 52 Cal. 3d 65, 73; Solberg v. Superior Court (1977) 19 Cal. 3d 182,
198.)
Here, the legislative history of subdivision (b) of section 41803.4 of the Government
Code, enacted in 1994 (Stats. 1994, First Ex. Sess., ch. 7, ' 1), fully supports our "plain reading" of the
statute. The report of the Senate Committee on the Judiciary for its June 21, 1994, hearing states with
respect to the proposed legislation:
"1) Need for the bill
"According to the author:
3. 96-304
"Chartered cities like Los Angeles, San Diego, Pasadena, and Santa Monica,
that have their own prosecutors, are often left out of state legislation that gives District
Attorneys certain critical informational access or prosecutorial jurisdiction to handle
misdemeanors. The efforts of city prosecutors to follow the spirit and intent of a law is
often thwarted by this obvious legal loophole.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"3) Consistency
"The author asserts ABX1 81 ensures consistency in future legislation by
providing a grant of powers and access of information in one section rather than a
section by section language change.
"4) Application
"This bill will apply to City Attorneys who have been granted the authority to
prosecute misdemeanors as well as the Attorney General's Office when it prosecutes a
case from which the DA had to [recuse] itself."3
Subdivision (b) of section 41803.5 of the Government Code was thus enacted to cover city attorneys
prosecuting misdemeanors for both charter and general law cities. It was intended to give them the
same powers and informational access as district attorneys without the necessity of changing each
statutory grant of authority--such as contained in section 633.
Finally, statutes are to "be given a reasonable and common sense interpretation
consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in
nature, which, upon application, results in wise policy rather than mischief or absurdity." (People Ex
rel. Deukmejian v. Che, Inc. (1983) 150 Cal. App. 3d 123, 132.) It would be unreasonable to construe
Government Code section 41803.5, subdivision (b), as not incorporating the powers contained in
section 633. A city attorney who prosecutes misdemeanors is in as much need of information as a
district attorney when the latter is prosecuting misdemeanors.
In answer to the question presented, therefore, we conclude that the designation
"district attorney" as used in section 633 does not include city attorneys who prosecute misdemeanor
cases; however, such attorneys when prosecuting misdemeanor charges have the same powers that
section 633 grants to district attorneys to overhear or record conversations.
*****
3
"`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.'" (O'Brien v. Dudenhoeffer (1993) 16 Cal. App. 4th 327,
334.)
4. 96-304 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4149924/ | Reverse and Render in part; Remand in part; Affirm in part and Opinion Filed February
28, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00313-CV
NEMORIA CORIA, Appellant
V.
CHRISTOPHER JIDE OGIDAN AND MOSES GBOLABO, Appellees
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-14-13113
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Bridges
Appellant Nemoria Coria purchased a home from appellees Christopher Jide Ogidan and
Moses Gbolabo. She later sued appellees for breach of contract and DTPA violations. The trial
court entered a take-nothing judgment in favor of appellees. In four issues, appellant argues the
trial court erred by (1) entering a take nothing judgment when the undisputed evidence
established appellees breached the general warranty deed; (2) concluding appellees did not
breach the real estate contract or violate the DTPA; (3) not finding appellees failed to disclose
delinquent tax information to appellant; and (4) sua sponte withdrawing appellees’ deemed
admissions. We reverse the take nothing judgment in favor of appellees on appellant’s breach of
contract claim, render judgment that appellant recover $19,269.77 in damages, and remand for a
determination of attorney’s fees and cost. In other respects, the judgment of the trial court is
affirmed.
Background
Appellant and appellees entered into a real estate contract on July 7, 2014, in which
appellant agreed to buy a home for $15,000. The contract stated in several places that the buyer
“accepts the property ‘as is.’” The contract also provided that at closing, “Seller shall execute
and deliver a general warranty deed conveying title to the Property to Buyer and . . . furnish tax
statements or certificates showing no delinquent taxes on the Property.” The parties executed a
non-realty items addendum in which they agreed, “The seller is not responsible for and the buyer
has agreed to pay any outstanding taxes, liens, and do the necessary repairs as they want.”
On July 22, 2014, appellees delivered a general warranty deed conveying title to the
property. The warranty deed stated, “The Grantor warrants that it is lawful owner and has full
right to convey the property, and that the property is free from all claims, liabilities, or
indebtedness, and that the Grantor and its successors will warrant and defend title to the Grantee
against the lawful claims of all persons.”
Appellant testified at trial that appellees failed to tell her the property had $19,269.77 in
outstanding taxes, court costs, and city liens. They also failed to provide any tax statement
regarding due taxes, as required per the contract, at the time of closing. Appellees testified they
repeatedly told appellant outstanding taxes were owed on the property and encouraged her to
conduct her own investigation. They claimed she knew about them “from day one.” They
argued it was “spelled out in the nonreality document that she is responsible for the taxes.”
However, appellant denied they told her about any delinquent taxes and denied calling the
county tax office several weeks before closing and discovering the amount owed.
–2–
At the conclusion of trial, the court asked the parties to provide briefing on whether the
warranty deed trumped the real estate contract. Appellant filed a brief in which she argued the
merger doctrine applied; therefore, the language in the warranty deed controlled. Appellees did
not respond.
The trial court ordered a take-nothing judgment on appellant’s claims. In the findings of
fact and conclusions of law, the court found that appellees “were aware that there were taxes due
and owing on the property at the time they delivered the warranty deed to Coria and they
disclosed the same to Plaintiff.” The court concluded, “Defendants did not fail to disclose
information to Nemoria Coria concerning goods or services which were known at the time of the
transaction” and “did not breach the real estate contract and did not violate any provision of the
DTPA.” This appeal followed.
Withdrawal of Deemed Admissions
In her fourth issue, appellant argues the trial court abused its discretion by sua sponte
withdrawing appellees’ deemed admissions. Appellees, who appeared pro se at trial, have not
filed a response brief.
Texas Rule of Civil Procedure 198 provides that a written request that the other party
admit the truth of any matter within the scope of discovery, including statements of opinion or
application of law to facts, may be served on another party no later than thirty days before the
end of the discovery period. TEX. R. CIV. P. 198.1. If a party fails to respond, the request is
considered admitted without the necessity of a court order and is conclusively established as to
the party making the admissions unless the court permits the party to withdraw or amend the
admission. TEX. R. CIV. P. 198.2.
A trial court has broad discretion in permitting or denying the withdrawal of deemed
admissions. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); Tommy Gio, Inc. v. Dunlop,
–3–
348 S.W.3d 503, 508 (Tex. App.—Dallas 2011, pet. denied). An appellate court should set aside
a trial court’s ruling only if, after reviewing the entire record, it is clear that the trial court abused
its discretion. Tommy Gio, Inc., 348 S.W.3d at 509. A trial court abuses its discretion if it acts
without reference to any guiding rules or principles or acts arbitrarily or unreasonably. Id.
A court may permit a party to withdraw deemed admissions upon a showing of good
cause. TEX. R. CIV. P. 198.3(a). Good cause is established by showing the failure involved was
an accident or mistake, not intentional, or the result of conscious indifference. Tommy Gio, Inc.,
348 S.W.3d at 509. In addition to finding good cause, the trial court may permit withdrawal of
an admission only if the court finds that the party relying on the deemed admission will not be
unduly prejudiced and the merits of the case may be presented to the court for review. TEX. R.
CIV. P. 198.3(b). Undue prejudice is based on whether withdrawing an admission will delay trial
or significantly impede the opposing party’s ability to prepare for it. Wheeler v. Green, 157
S.W.3d 439, 443 (Tex. 2005).
Here, the deemed admissions were never mentioned by any party until the end of the
bench trial. Appellant’s counsel mentioned them for the first time in closing argument. After
closing arguments, the court explained it would be required to accept the requested facts as true,
but then asked appellees if they wanted to move to strike the admissions.
Gbolabo explained he did not receive the request for admissions “until recently” because
appellant sent the request to his wrong business address. When he received the request, he had
just returned from a trip abroad and had “a bunch of mail” and “a lot of other things that are
happening to me.”
Ogidan argued he wanted to withdraw the deemed admissions because he and Gbolabo
explained everything to appellant about the property, and “[n]othing was hidden.” He also
explained he tried to reach Gbolabo several times because everything they were doing was on
–4–
behalf of their corporation, and he had not talked with Gbolabo “until a few days ago.” The
record indicates that although both appellees entered the contract as sellers, Gbolabo took the
lead in the negotiations and tax discussions with appellant.1
Based on these facts, the record does not indicate either party acted with conscious
indifference. See, e.g., Spiecker v. Petroff, 971 S.W.2d 536, 539 (Tex. App.—Dallas 1997, no
pet.) (the “ultimate goal of the rules of discovery is to seek the truth and therefore, the rules
should not be construed to prevent litigants from presenting the truth to the trier of fact” or be
used as a “trap for the unwary”). Moreover, there is no showing of undue prejudice. The issue
did not even arise until the conclusion of trial; therefore, withdrawal of the deemed admissions
did not delay the trial or significantly impede appellant’s ability to prepare for it, as she fully
presented her case to the bench. See Wheeler, 157 S.W.3d at 443. Under these circumstances,
we conclude the trial court did not abuse its discretion by withdrawing the deemed admissions.
Speicker, 971 S.W.2d at 539; see also McComas v. Dallas Lite & Barricade, Inc., No. 05-97-
00338-CV, 1999 WL 521690, at *3 (Tex. App.—Dallas July 23, 1999, no pet.) (“Under this
Court’s authority, even a slight excuse will suffice, especially when the opposing party will
suffer no delay or prejudice.”). We overrule appellant’s fourth issue.
Breach of General Warranty Deed and DTPA
In her first issue, appellant argues the trial court erred by entering a take-nothing
judgment when the undisputed evidence established appellees breached the general warranty
deed. Appellant’s argument is based on application of the merger doctrine, which the trial court
implicitly rejected by granting a take-nothing judgment and concluding appellees “did not breach
the real estate contract.”
1
For example, Ogidan was only present when Gbolabo allegedly discussed the delinquent taxes with appellant. Appellant testified Ogidan
was only present at their first meeting for a little bit, and she claimed he did not even show up the second time. Throughout the bench trial,
Gbolabo handled almost all of the questioning with little participation from Ogidan.
–5–
We review de novo a trial court’s conclusion of law. See BMC Software Belg., N.V. v.
Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We are not bound by the trial court’s legal
conclusions, but the conclusions of law will be upheld on appeal if the judgment can be sustained
on any legal theory supported by the evidence. Slicker v. Slicker, 464 S.W.3d 850, 857 (Tex.
App.—Dallas 2015, no pet.). Moreover, conclusions of law may not be reversed unless they are
erroneous as a matter of law. Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas
2016, no pet.).
Although the trial court’s conclusions of law do not reference the warranty deed or the
merger doctrine, appellant presented the doctrine to the trial court and it is a legal theory we must
consider. Accordingly, we begin our de novo review by considering whether the merger doctrine
applies.
As a general rule, when a deed is delivered and accepted as performance of a contract to
convey, the contract is merged in the deed. Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex. 1988).
“Though the terms of deed may vary from those contained in the contract, still the deed must be
looked to alone to determine the rights of the parties.” Id. However, a contract for sale of land
that creates rights collateral to, and independent of, the conveyance survives a deed that is silent
in respect to the collateral or independent ground. Lakeway Homes, Inc. v. White, No. 05-15-
01455-CV, 2016 WL 3453559, at *5 (Tex. App.—Dallas June 23, 2016, no pet.) (mem. op.);
Stanford Dev. Corp. v. Stanford Condominium Owners Ass’n, 285 S.W.3d 45, 51 (Tex. App.—
Houston [1st Dist.] 2009, no pet.) (noting merger doctrine does not apply when “the deed does
not merge other distinct and unperformed provisions of the contract”). For example, courts have
concluded arbitration clauses and completion of construction or escrow agreements survive
merger and are not extinguished because of subsequent deeds or other closing documents. See
Lakeway Homes, Inc., 2016 WL 3453559, at *5; Stanford Dev. Corp., 285 S.W.3d at 51.
–6–
The clause at issue here, however, does not involve any of those recognized exceptions.
Rather, both the real estate contract and the warranty deed include provisions regarding taxes,
liabilities, and indebtedness. The non-realty items addendum attached to the real estate contract
stated, “The seller is not responsible for and the buyer has agreed to pay any outstanding taxes,
liens, and do the necessary repairs as they want.” The warranty deed stated, “The Grantor
warrants that it is lawful owner and has full right to convey the property, and that the property is
free from all claims, liabilities, or indebtedness, and that the Grantor and its successors will
warrant and defend title to the Grantee against the lawful claims of all persons.” Here, the
warranty deed is not silent as to a collateral or independent ground in the real estate contract.
Rather, the general warranty deed speaks directly to appellees’ promise that the property is free
from all claims, liabilities, and indebtedness—a subject covered by the real estate contract.
Thus, the merger doctrine applies, and the deed alone determines the rights of the parties.
Alvarado, 749 S.W.2d at 48. By delivering property that was in fact not free from indebtedness,
claims, and liabilities, appellees breached the warranty deed and caused appellant to suffer
damages. See, e.g., Myers v. Hall Columbus Lender, LLC, 437 S.W.3d 632, 635 (Tex. App.—
Dallas 2014, no pet.) (party entitled to recover on contract claim when defendant breaches a
material duty under the contract and plaintiff suffers damages). Accordingly, the trial court’s
conclusion of law is erroneous as a matter of law. Sheetz, 503 S.W.3d at 502. We sustain
appellant’s first issue.
Appellant argues in her second and third issues that the trial court erred by concluding
appellees did not violate the DTPA and by not finding appellees failed to disclose information to
her, which were known at the time of the transaction, and their failure to disclose was made with
the intent for her to rely on the information to her detriment.
–7–
When the appellate record contains a complete reporter’s record, we review the trial
court’s findings of fact under the same standards for legal and factual sufficiency that govern the
review of jury findings. Slicker, 464 S.W.3d at 857. In evaluating a legal sufficiency challenge,
we credit evidence that supports the finding if a reasonable factfinder could and disregard
contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). The test for legal sufficiency is whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review. Id. In a factual sufficiency
review, we examine all the evidence in the record, both supporting and contrary to the trial
court’s finding, and reverse only if the finding is so against the great weight of the evidence as to
be clearly wrong and unjust. Slicker, 464 S.W.3d at 858. In evaluating the trial court’s findings
of fact, we must give substantial deference to the trial court’s determination of the weight and
credibility of the evidence. Id. In a bench trial, the trial court is the sole judge of witness
credibility. Id.
Here, the trial court found that appellees disclosed to appellant that taxes were due and
owing on the property. The record shows appellees repeatedly told appellant they owed
delinquent taxes on the property and encouraged her to make her own independent investigation
into the amount. Although appellant testified to the contrary, the trial court, as the judge of
witness credibility, was free to believe appellees, and this Court may not second guess its
determination. Slicker, 464 S.W.3d at 858.
The trial court then concluded appellees did not fail to disclose information concerning
goods or services which were known at the time of the transaction, and therefore, they did not
violate any provisions of the DTPA. The record supports this conclusion. Accordingly,
–8–
appellees were entitled to a take-nothing judgment on appellant’s DTPA claim.2 We overrule
appellant’s second and third issues.
Attorney’s Fees
Because appellant is entitled to judgment on her breach of contract claim, she may also
recover her attorney’s fees. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2015).
At trial, appellant’s counsel presented testimony supporting his reasonable and necessary fees for
trying both her contract and DTPA claims. However, appellant is not entitled to fees on her
DTPA claim. We remand for the trial court to determine the amount of fees recoverable for
appellant’s breach of contract claim. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
311-15 (Tex. 2006) (remanding for trial court to determine proper amount of attorney’s fees);
Prudential Ins. Co. v. Durante, 443 S.W.3d 499, 515 (Tex. App.—El Paso 2014, pet. denied) (if
party is entitled to attorney’s fees under section 38.001, then it follows she is also entitled to
attorney’s fees on appeal).
Conclusion
We reverse the take-nothing judgment in favor of appellees on appellant’s breach of
contract claim and render judgment that appellant recover $19,269.77 in damages. We remand
to the trial court for a determination of recoverable attorney’s fees in a manner consistent with
this opinion. In all other respects, the judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
160313F.P05
2
In reaching this conclusion, we are mindful the merger doctrine does not apply to negate a DTPA claim when a contract is procured by
fraud. Rich v. Olah, 274 S.W.3d 878, 889 (Tex. App.—Dallas 2008, no pet.). The record, however, does not support that the contracts were
procured by fraud. Appellant’s arguments to the contrary are without merit.
–9–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEMORIA CORIA, Appellant On Appeal from the 68th Judicial District
Court, Dallas County, Texas
No. 05-16-00313-CV V. Trial Court Cause No. DC-14-13113.
Opinion delivered by Justice Bridges.
CHRISTOPHER JIDE OGIDAN AND Justices Evans and Schenck participating.
MOSES GBOLABO, Appellees
In accordance with this Court’s opinion of this date, we REVERSE the take-nothing
judgment in favor of appellees CHRISTOPHER JIDE OGIDAN AND MOSES GBOLABO on
appellant NEMORIA CORIA’s breach of contract claim and RENDER judgment that
NEMORIA CORIA recover $19,269.77 in damages. We REMAND to the trial court for a
determination of recoverable attorney’s fees in a manner consistent with this opinion. In all
other respects, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear their own costs of this appeal.
Judgment entered February 28, 2017.
–10– | 01-03-2023 | 03-03-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143103/ | .. ,
OFFICEOFTHEATTORNEYOENERALOF~TEXAS
AUSTIN
CT--
2fi6
*Xn oaoea where the dookot of the Justi
Of the P+xioo ohov8 6 pw%oA vao ohar4e4 v;# a
niBdMOQZiarbut A0 furthor aotioa 10 sh0v8l what
evldoaoe shoti the Justlae furnish IA rmov-
1~6 suoh woeo iron hia doakot? How 10~6
Ahod aueh OaOr)a be peroitted to XWMiA dA
th0 doavsta befOr 48flAitO iaiOl%VititA SO to
their aktuo 10~&06, or fkl dl?ponltloa lo
VAslr0@?
~ttiii0i 909, 916, 919, ii8,99o'md 698, trywaa’o
Azaotatod mar am or crlnicd mae4ure, re44 61 to1
*A& 9091,.&aa th’jury litivo~a(gdrd
upoa
a tw4iot, they #bill bring the wao l&o oou?t$
an4 tha Juatlor &ml1 880 that At lo la proper
iOX? 6A4 Pb?u'@At4w it UpA hfa 4OUk8h AA4 LWA-
dar tho pro;ar Ju&amxt thorw~~"
“Art. 919, nte JU&&TlQAt iA 4AOO Ot.OOA-
YiOttEA iA l Od&lJll aoti@A b&Of0 a U4t$Ob Of
th, @aoo, ahall ba that the Elta$o of 11
Wao~.ro-
‘. COYIT or tha .defsndurt tho fitto aa emtO and
that t.h* d6f~AhlZtr~iA iA OWtody Of t&4
'bhe&ff UAtu fbS fiAS aad 4OOtO 630 3d4~ Ma
that eX8OUtfOA ioiuo to Ooll,ot the MC
*Aft; 918. U the d,trAdMt be xiOt iA dtu-
t4&gwheli jUbipa,Atl4.r4A44rrd OT if h4 444w44
from ouatodjr~thirnrafter a sap!40 4Mll irouo
tor hlo rrre8t and oondaainent in JAll UAtiL.b0
la lefplly dla4harg6de-
“1, That hr lo too poor. to u”rp thr fina md
008t.0, an4
Eonomblo 3. T. waltsro, Patio3
*a. That he has r+plnaa in jail a lurri-
ofont lmngbh oi' t.lmeto sptio th. fiM aAd
Otto, at the ret@ of three do'a laan for onoh
da?*
fgut the dOk3aAt shall, in no oaim tidat
this artfcle be dlsoh~6e4 uatl h, ha8 been
inpriocarrdai 14aot ten days; 4Ad.6 jtutlse Of
the ;wor nUy dl#o.h#rgs the d#f#ndaat U?OA hi8
the eezw 04~34, by ap,pUoatlon to auah
..,ahoving
Jurt&er: itn4 wh#n ouch l i%izO& iBog~rWo$
thbr juatloo shell mto t$ 4.
%'Art. e@& oA k?h V4FdiOt Of ‘&O$Uitw
or oofwiatlon #till, bs
rnt
ttr4 tho dOfQAQd
all Nrthrr
li#bUlty up04 the oharga fox *ioh, ho w#o trlrdl
in Aloam84ltnorousoo vhsra there
rovidrd
s muritadthat4
4 7mi0t, 0f A piOA 0r *:uiltp 10
aateretl aAd tkQ ~ulll~unsat asseaM is b;Vfina
onl~ylths Court. nag 0?1wrlttsn~r8~ue.t of the
d4f4AdaAt aAd for mod O(LUPOObWA, d?ikr &Id&-
Imat until oamo other day fixed by order OS
the Court; bu% ia A0 9Wnt~ShCi~l th. jUd$QMJnt
ba dafeW% iOr a b!i&er pezfod ~0s tkW tbaA
ah ‘(6) aonttm. OA eqdmtfon 4i the tiae
sin04 by th4 fftdOrOS th4'COWt, the Court or
Jude;4thsreor, shall atltrr Judgqnt on thw
vordiot or plm 4&I the #am ohal. br oxrauted
80 provided by Chapter 4, T~itls 9, ci tgo
cod+ af crlnlnal Brwe4ure or:thr Stat0 ot
~ehto. Prorldse rura.er that tbo court or
Jud&8 %haroOf iA the OXOTOi@O 0,s #OUAd 4iOOtW
'tiOA Z+Sy ~Odt tbO dOfMdsAt
is defe4rre4,to tessl~ bt lerer on
raoogni~or, or atip~roptir6 hiPato OUtahor iAt
b054 in e aw8 at lwst amble the wmufit 0r
the aaroased f$ae and 404t4, oondftlcid that
the da?ecidentand mrotlas, Joiatl.9and ~erw’8lly,
vlll pay suoh’ iin0 and Ob@W. u?Aollo.ths d4fm-
d&At ~sr44niillya~~'~'8 @A the day i3et iA th4 Ord4X
and dlaehargas the Judmnt 1~ the mwimr prov/ded
Sy Chapter 4, Title 9 OS the Co&l of G&&US1
3rooed~urr or the W,ate Of Taxce~ and for the
snfofoszmt o? any JuQmeat satered, all wrfto,
Sonon& 3, T* waltm, -0 4
pmouH# pa4 te?aodluof t&o Codeof Crfarlacrl
F‘roWurr sm imAo rp Marble 80 ia? de mo-
tG Ollm GUt t a QrOViEhUl Of this
Cod.,
Whon a &f6n&nt in boariotod ifi jIlS*,fi6ti OcUrt it
histhe duty or the just;ceto recvbrJu@~ont thnt the
8t.ateof Tua8 reeovdlr or the adfaint the tis~aad oost8,
en4 thst the d~rrnda~t (ir p.3aant) rasngn in thr oulrtody
of t&a oheriff (OF omatesls an tha oaoe~my be) until the
rb fiti 008tr *PO pai. tmal thlr oharaoter of ju@lrnt
1s rendered it tbn become the DutyOf the sheriffOF
oartlllocl
oogpof the JuQ!mnt ~111 authr;rlae auoh lqe51#oa-
CBIS. ‘fhajU¶tlOs ha8 no B:srdC#iill$
pO%ver
Cm& ha8 I@ authori8y
to oxtmd otodltto the dslaadaat. ?fme+vsr, the justlo bar
tho;powwto dofsr the jw@aoot ~rovlded hr do08 90 in .
tho preooriBa8 aunnup so8 out in Article 698 luprao The
2-r to deSof 8ho ju@ment under &tlolo d, rrupra ha-
over,Aoos not suthorirethe Just5tmto iataruierrwith tbs
eollootiwof hlo Judgaoat aStarit Sa eatrmd and trar
booem Silrrl.
XS tb* defendant
1s not ~proaant tba
at the tlnu,
jud@mnt 1~ wcdwod la jwticu ocart It thenbowxus t&o
duty OS tbr jutloa to Im14 a arrpir* for the d4Senbnt.
hftarthu ewlao 1~ 5sruedit thanbeuzma the duty cS the
ahwlff OF ocrcrctnblsto axeout it by orrratfq tbo de-
fondant and by bsolding oin Lo quutody watt1 &a f!lasand
aou88 uro lw4illy d5oohar~ed.
‘P
““- 2Yl
. ,.
8omrable ?#, T. ‘keltocb, We 7
Youam re.protSully ad+leodtbstit lo the
opla5oaof thbdQ~Z%SOAt thllt u crhould ord1nuU.yUok
to the shsriti or gme*&bls OS tr e ceee mty be Sor tha
colle0tloo of rsib20 a;?d etlete in 2l5edNneemioroeeee* Ilo*-
war, Sa acma cseee ouch officers say be justli5e4 5rr
theirfriltm to ooUmt
OS tbmtriMu11ty tqL6lmrao*
hnd.irr
e6aa'oaaaa
yau
lrwuta
a a d th
The, ilpoto Lr Bosh
m&rat oi duty, lierr
&,i&~, .Qlij v” A c
Q .p m m’
&it all ju&pgta ad. Gde:. Gf ~b&&&&%!:?~
UeMd ln.opm oourt'md‘entomb ugmi hi8 dooht. Ar8lolr
1081 V, A. U..C.Pe, re&r& ths Justiaeto krrpII,book
5n wbb sbdl Bu eatafed t;b8 auaber.md style OS eeeh
arloLtn1. eatloo~ in h5e ocmxt sties Art5ole $77 Vi’ A. 0, G. P.,
mtgru, ~rotid.t~.th.$ .rbi..i~O..8 8aY.k d!bi&i~& Oir
the v=ift,w’natleg of the blotriot ti oounty attaruy with
tbo oonaeat~of the preellding j-0, ~afo*
I,t is our itp5tiloetibh ih. jue$ioe 6houU pleqe
on him do&e% al1 oreel .Spl& In bl.8 eouk?t e&l that hlr
c\6okoO’Wquld 8bar .thddlejroeitioa ~of the oeP@i 5.f ray, et&
05 coa71~tWijcroquittrl OIC QitiawL Xf a arbiarl quo
,5aS5ledwith tb* ~5snot'.trla4 or ilinidrd,
juutfas~aad
we think it 58 wltb5n thi sound d5ecrstZon of.tbo $uettee
6!ldQOU!lk~;g6ttat~~~ ati tO'Wbllt hBl%$thOf tit&d thb d&l
allip it to pond in just5ae obwb .2rior to a 41 tti3r ‘.0eeX
thorsot,80 the setter at U5035mnt~ crltilnel oa#er In
judtlae oourt la a mttoi to bo~dabidcrdjolntdy:b+ the eoenty
ettocnry ad by the jurrtlcr of th. ptmo.~,ee ,!, prorlG$ by
ArtiGlsST, B. Ar C* Cb P~l.eupm~
muegng tbet tb5s eet5eSeotorlly anmere row
itquwy, wa ars
very truly ..$ma
ATTORNEY GENERAL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143127/ | OWNE
Honorable Gee. H. Sheppard
Comptr~llsr of Public Accounts
Awti4, Text
'I
Dew Mr. Sheppandr Opinion No. O-3236
Rar mether the oounty commissioners'
court may select I bank as a county de-
positcrjr,under the stated ciroumstanoes.
This i8 ia reply to your lett~ 81 February 26, 1941, propounding
the fellwing qurstioa for an opinion:
"I would call tc your attnntion the County Depository Pledge contract exe-
cuted by the First National Bank of Fabans, Texas, to ccwar deposits in the
amount OF $SS,OOO.OO, whioh sum is 04 time deposit, and onwhich sum inter-
est is paid, This is only a small fraction, of course, of the amount cf the
ocunty's deposit. A similar contract wxs executed two years ago with the
First Eational Bask of Fabens, however, this year, because of illness on
the part ef the President of the bank, he failed to notioe the publiortian
calling for bids as required by Article 2544 of the Revised Civil Stqtitss,
and oonsequeatly did net subnit a bid to the county for a part of its de-
posits. The other banks do not pay interest on deposits, and for that
MPOOI the ceunty desired to leave thio part of its deposits with the First
NaticnP!.Bank of FqLmno, if it could be legally done. In view of the fact
that P bid ws not submitted by the bank and a oertified check was not
deposited a8 required by law, there ~a6 scme doubt in my mind as to whether
such a contract cculd be exeouted, and the Court advised me to call the
matter to your attention in submitting the contract to you for approval.
If bu -virtueof the execution of the oentract and deposit of the pledges,
the oontraot will be binding upon the bpnk and is acceptable by you, the
Court desires to have it aoceptsd."
Chapter two of Title 47, Vernon's Civil Statutes, dealing with
county depositories, provides for the publioation of notice that a contract
with a ooluty depcsitory is to be made (Art. 2544); that any banking ccr-
poraticn, association, or individual banker desiring to be designated as
caunty depository shall make and deliver to the County Judge an application
applying for suoh funds, and shall state the amount of paid-up capital
mtook and permanent surplus of the bank, and other like requirements (Art.
2544)~ that *it shall be the duty of the oommissioners' court at ten
o'clock A.&f. on the first day of each term at which bnke are to be se-
lected as county depositories, to consider all applications filed r+th
the,County Judge,,cause suoh applications to be entered uponthe minutes
of the ccurt, and to select those applicants that are acceptable and who
offer the most favorable terms and conditions for the haadliag of suoh
Ron. Gee. Sheppard, pace 2 (O-3238)
fund and having the power to rejeot thorr whoer management or oondition,
in the opinion of the oaurt, does act warrant phoing of ocunty funds in
their poscerei~n~' (Art0 2546),
The mtatute thus quoted clearly requiree that oounty drpositorisr
be seleoted by the oomniseioners' oourt from thosd banking inrtitutiona
who have regularly made lpplioation in lo o o r da awith
o ethe rtatuter.
The oirourmstanoesstated by youwith r*f?renoe to the derirability
of renewing the depository contract with the Fire* Nation81 Bmk of Fabena,
however, persuasive from a bueineen etandpolnt cannot justify a doparture
from the rule of the statute.
We haw assmned thet the court har ixfore it a bid or bide fraan
whioh it oan sale& a county deponitory, fer otherwire Artiole 2650 of
the Revised Civil Statutes provides the proper prooedure,
Very truly youre
ATTORIPSYGENERAL OF TEXkS
By /a/ Ooie Spear
Ooir Spoor
APPROVED VAFt 14, 1941 Asslatant
/I/ GROVER SELLEm!
FIRST ASSISTANT
ATTORNEY GENI!,Ri%
OS-MR-egw Approved
Opinion Cammitts
ByBWB
Chairman
, | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125053/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 31, 2015
The Honorable Marco A. Montemayor Opinion No. KP-0011
Webb County Attorney
1110 Washington Street, Suite 301 Re: Whether a public school district may
Laredo, Texas 78040 expend funds for the management of county
school lands to determine if a lessee of a
mineral estate is fulfilling its duty to explore
and develop the mineral estate (RQ-1225-GA)
Dear Mr. Montemayor:
You originally requested an opinion concerning whether a public school district may
expend funds to "determine if the lessee of the mineral estate [on county school lands] is carrying
out its duty to explore and develop said mineral estate." 1 In a supplemental request, you also asked
whether a county may sell the county school lands to the school districts of the county for a nominal
fee without complying with notice and bidding requirements of the Local Government Code. 2
Your requests concern the public school lands granted to Webb County for the benefit of
education in the county. Beginning in 1838, the Republic of Texas granted land to each county to
fund the establishment of public schools. See TEX. CONST. art. VII, § 6, interp. commentary.
While most counties in Texas have sold their county school lands and invested the proceeds in
authorized securities, Webb County continues to own county school lands and has leased the
mineral rights on those lands. See 36 David B. Brooks, Tex. Practice Series: Cnty. & Special Dist.
Law§ 30.2 (2d ed. 2002); Request Letter at 1; see also Ehlinger v. Clark, 8 S.W.2d 666, 670 (Tex.
1928) (acknowledging a commissioners court's authority to sell the mineral estate on county
school lands). You further explain that production and revenue from the lease has been minimal,
while the surrounding lands have "seen unprecedented production." Request Letter at 1. You
therefore question whether Webb County school districts may allocate funds "to obtain data
through a royalty audit, the hiring of a private gauger, and a helicopter survey to determine if the
lessee is exploring the mineral estate" as it should. Id. at 1-2.
1
Letter from Honorable Marco A. Montemayor, Webb Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at I (Oct. I, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2
Letter from Honorable Marco A. Montemayor, Webb Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y
Gen. at I (Jan. 13, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Supp. Request
Letter").
The Honorable Marco A. Montemayor - Page 2 (KP-0011)
Article VII, section 6 of the Texas Constitution governs the ownership, management, and
disposition of county school lands, providing that:
All lands heretofore, or hereafter granted to the several counties of
this State for educational purposes, are of right the property of said
counties respectively .... Each county may sell or dispose of its
lands in whole or in part, in manner to be provided by the
Commissioners Court of the county. Said lands, and the proceeds
thereof, when sold, shall be held by said counties alone as a trust for
the benefit of public schools therein; ... and the counties shall be
responsible for all investments; the interest thereon, and other
revenue, except the principal shall be available fund.
TEX. CONST. art. VII, § 6. The constitutional provision creates an "express trust" in which the
commissioners court acts as trustee of the county school lands for the benefit of the public schools
in the county. Comanche Cnty. v. Burks, 166 S.W. 470, 473 (Tex. Civ. App.-Fort Worth 1914,
writ ref'd); see also TEX. EDUC. CODE ANN. § 45.113(b) (West 2012) (making members of the
county commissioners court the "sole trustees" of the trust). As trustee, the commissioners court
has "the constitutional and statutory duty" of ensuring that contracts entered into related to county
school lands are carried out by the contracting parties. See Ehlinger, 8 S.W.2d at 674.
Construing article VII, section 6, the Texas Supreme Court has held that a county
commissioners court may not delegate its authority and responsibility over county school lands.
See, e.g., Williams v. Pure Oil Co., 78 S.W.2d 929, 931 (Tex. 1935); Logan v. Stephens Cnty., 83
S.W. 365, 368 (Tex. 1904). With regard to school districts specifically, this office has advised that
"a county may not delegate its article VII, section 6 responsibilities to the school districts in the
county." Tex. Att'y Gen. Op. Nos. GA-0616 (2008) at 3, JC-0399 (2001) at 5.
Furthermore, court decisions and opinions from this office have concluded that the county
must incur the expenses associated with exercising authority under article VII, section 6. In
addressing expenses incurred in selling county school lands, the Texas Supreme Court has
explained that "it was intended that such expenses should be paid by the county from its general
fund." Dallas Cnty. v. Club Land & Cattle Co., 66 S.W. 294, 297 (Tex. 1902) (prohibiting a
county from conveying a portion of county school land as consideration for surveying it). The
Court then explained its rationale:
[I]t may be urged that, since the county is made a mere trustee, it is
unreasonable to suppose that it was intended to charge it in its
individual capacity with the expense of administering the trust fund.
The answer is that while, in legal contemplation, the county is but a
trustee, and the school fund the beneficiary, the county has an
important interest in the maintenance of public schools within its
limits; and that it is not unreasonable ... to make the expense of
administering a fund set apart for the support of public schools in
the county a charge upon its general revenue.
The Honorable Marco A. Montemayor - Page 3 (KP-0011)
Id. A more recent opinion from this office, relying on Dallas County, likewise concluded that "a
county must bear its expenses to administer the constitutional trust under article VII, section 6."
Tex. Att'y Gen. Op. No. GA-0616 (2008) at 4 (concluding that a county and school districts in the
county may not jointly develop or sell rights to natural resources and minerals in county school
land). Although we find no authority specifically addressing the county's ability to recoup
expenses associated with the investigation of a mineral lessee's exploration and development on
county school lands, these authorities suggest that a court would likely conclude that the county,
not the school districts within the county, should pay out of county funds any expenses incurred in
fulfilling its constitutional duties as trustee of county school lands.
With regard to your first question, you ask whether a school district may allocate funds for
these purposes under Education Code section 45 .105. Request Letter at 1. Section 45 .105
authorizes local school funds to be used, among other reasons, for "purposes necessary in the
conduct of the public schools determined by the board of trustees." TEX. EDUC. CODE ANN.
§ 45.105(c) (West 2012). While this provision gives a board broad discretion to use local school
funds, "school funds cannot be expended . . . unless the trustees first determine that such an
expenditure is 'necessary."' City of Garland v. Garland Indep. Sch. Dist., 468 S.W.2d 110, 111-
12 (Tex. Civ. App.-Dallas 1971, writ ref d n.r.e.) (interpreting prior version of section 45.105).
It will be up to the board of trustees to determine, in the first instance and subject to judicial review,
whether an expenditure to investigate mineral production on county school lands is necessary.
Because a county must bear its expenses to administer the constitutional trust under article VII,
section 6, however, a court could have reason to conclude that a school district's allocation for
such purposes is not necessary and therefore not authorized under section 45.105. This opinion
does not address the issue of whether a school district may expend funds to ensure that the trustee
is carrying out its fiduciary obligations to the school district or whether the school district could
recover any costs to enforce these rights as a beneficiary against the trustee.
Your supplemental request asks whether Webb County may sell the Webb County School
Lands to the school districts of Webb County for a nominal fee. Supp. Request Letter at 1. While
article VII, section 6 expressly authorizes a commissioners court to sell county school lands, the
county "alone" must hold the proceeds of the sale "as a trust for the benefit of public schools
therein; ... and the counties shall be responsible for all investments; the interest thereon, and other
revenue, except the principal shall be available fund." TEX. CONST. art. VII,§ 6. Numerous court
opinions and opinions of this office emphasize the fiduciary nature of a county's duty with regard
to county school lands and the county school land fund. See, e.g., Delta Cnty. v. Blackburn, 93
S.W. 419, 422 (Tex. 1906) (concluding that counties are trustees for the benefit of the state's public
schools), Cnty. Sch. Trs. v. Brazoria Cnty., 240 S.W. 675, 676 (Tex. Civ. App.-Galveston 1922,
no writ); see also Tex. Att'y Gen. Op. Nos. JC-0004 (1999) at 2-3 (holding the county, as trustee
of county school lands, to the prudent investor standard), H-506 (1975) at 2 (explaining that the
commissioners court acts in a fiduciary capacity as trustee of the county permanent school fund).
A county acting as trustee of the county school lands is "held to the same rules of law that
are applicable to other trustees." Comanche Cnty., 166 S.W. at 474. Selling the county school
lands for a nominal fee would be inconsistent with the trustees' duty to manage the property "as a
prudent investor would." TEX. PROP. CODE ANN.§ 117.004(a) (West 2014) (describing the general
The Honorable Marco A. Montemayor - Page 4 (KP-0011)
standard of care under the Texas Trust Code); see Tex. Att'y Gen. Op. No. JC-0004 (1999) at 3
(concluding that certain investments were not consistent with the county's fiduciary duty with
regard to the county permanent school fund). The fact that the county desires to sell the county
school lands to the school districts, the beneficiaries of the trust, does not alter this analysis. As
discussed above, members of the commissioners court are the "sole trustees" of the trust
established for the permanent school fund, and they may not delegate their authority and
responsibility to the county's school districts. TEX. Eouc. CODE ANN. § 45.l 13(b) (West 2012).
Selling county school lands to the school districts for a nominal fee would, in essence, delegate
the commissioners' responsibility as trustees, violating long-established case law to the contrary.
Thus, Webb County may not sell the county school lands to the school districts within Webb
County for a nominal fee.
The Honorable Marco A. Montemayor - Page 5 (KP-0011)
SUMMARY
The Texas Supreme Court has concluded that article VII,
section 6 of the Texas Constitution requires the county to pay out of
its own funds any expenses incurred in fulfilling the county's
constitutional duties as trustee of county school lands. Thus, a court
could have reason to conclude that a school district's allocation of
funds to determine if a lessee is exploring and developing the
mineral estate on county school lands is not necessary and therefore
not authorized under section 45.105 of the Education Code.
A county commissioners court acts as sole trustee of the
county school lands for the benefit of the public schools in the
county. The commissioners court may not delegate its trustee
responsibilities to the school districts in the county. Selling county
school lands for a nominal fee to the county school districts would
be inconsistent with the trustees' duty to manage the property as a
prudent investor would.
Very truly yours,
IL 'f/CA/) | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128046/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 28, 2011
Mr. David A. Reisman Opinion No. GA-0863
Executive Director
Texas Ethics Commission Re: Information that must be furnished to a
Post Office Box 12070 respondent against whom a complaint is filed with
Austin, Texas 78711 the Texas Ethics Commission (RQ-091O-GA)
Dear Mr. Reisman:
You ask two questions about complaints filed with the Texas Ethics Commission (the
"Commission,,).l A complainant must attach a copy of a document like a paycheck or property tax
bill to the complaint to demonstrate residency or real-property ownership in Texas. TEX. GOV'T
CODE ANN. § 571.122(b-l) (West Supp. 2010). If the executive director of the Commission
determines that the Commission has jurisdiction over the complaint, the Commission must send the
respondent a copy ofthe complaint. Id. § 571. 124(e) (West 2004). You ask whether the attached
document is part of the complaint and must be sent to the respondent under section 571. I 24(e) and,
if so, whether anything in the attached document must be redacted. Request Letter at 1-2.
No Texas law explicitly states whether the document establishing residency or real-property
ownership in Texas is so incorporated into the complaint as to be part of it. The law merely states
that a copy of the document "must be attached to the complaint." TEX. GOV'T CODE ANN.
§ 571.122(b-l) (West Supp. 2010). The Commission interprets section 571.122 to mean that the
document is not part of the complaint and does not have to be sent to the respondent. Request Letter
at 2. Courts would give this interpretation "serious consideration" if the Commission enforces
section 571.122 and if its interpretation is reasonable and does not contradict the statute's plain
language. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993).
Under section 571.062, the "[Clommission ... may adopt rules to administer this chapter or
any other law administered and enforced by the [Clommission." TEX. GOV'T CODE ANN.
§ 571.062(a) (West 2004). Therefore, chapter 571 is a law "administered and enforced by the
[CommissionJ."
'Letter from David A. Reisman, Executive Director, Texas Ethics Commission, to Honorable Greg Abbott,
Attorney General of Texas (Aug. 19,2010), https:l/www.oag.state.tx.us.opin.index_rq.shtml ("Request Letter").
Mr. David A. Reisman - Page 2 (GA-0863)
The Commission's interpretation would contradict the plain language of section 571.122 if
the phrase "attached to the complaint" plainly means that the document is part of the complaint. The
word "attach" means "to tack on, fasten, affix, connect." 1 OXFORD ENGLISH DICTIONARY 7 59 (2nd
ed. 1989). See also Powell v. Stover, 165 S.W.3d 322,326 (Tex. 2005) (indicating that a court may
determine the meaning of statutory language by using a dictionary). It is also possible that a
document "fastened or affixed" to a complaint may be regarded as part of a complaint, like an exhibit
in a pleading. Cj TEx. R. crv. P. 59 (providing that written instruments "may be made a part of the
pleadings by ... being attached or filed and referred to as such"). However, it is also possible that
the "fastened or affixed" document is not part of a complaint but is extrinsic information different
from the information explicitly identified as intrinsic to the complaint. See TEx. GOV'T CODE ANN.
§ 571.122(b) (West Supp. 2010) (listing the information that a "complaint filed under this section
must ... set forth" but not listing the document establishing residency or real-property ownership
in Texas). Therefore, the phrase "attached to the complaint" does not plainly mean that the
document becomes part of the complaint.
A court would likely find the Commission's interpretation reasonable because the Legislature
used the words "attached to the complaint" rather than language explicitly stating that the attached
document is part of the complaint. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535,540
(Tex. 1981) (noting that words are included in and excluded from statutes for a purpose).
Because a court would likely find that the Commission is charged with administering or
enforcing section 571.122 of the Government Code and that its decision not to send the respondent
a copy of the document under section 571.124(e) is reasonable and does not contradict the plain
language of section 571.122, a court would likely give the Commission's interpretation "serious
consideration." Tarrant Appraisal Dist., 845 S.W.2d at 823. Accordingly, we do not conclude that
the Commission must provide a copy of the document establishing the complainant's residency or
real-property ownership in Texas to the respondent under section 571.124(e).2 Nor do we answer
your second question. See Request Letter at 2 (requesting an answer to the second question only if
we determine that the attached document must be sent to the respondent under section 574. 124(e 3 n.
'We note that the respondent may examine all documents submitted with a complaint at the Commission's
office. I TEX. ADMIN. CODE § 12.67(b) (2011) (Tex. Ethics Comm'n, Sworn Complaints).
'The Commission must comply with all applicable laws regarding access to public information. See, e.g., TEx.
GOV'T CODE ANN. §§ 552.001-.353 (West 2004 & Supp. 2010), 571.139-.140 (West 2004).
Mr. David A. Reisman - Page 3 (GA-0863)
SUMMARY
A court would likely give serious consideration to the Texas
Ethics Commission's decision not to send the respondent in a matter
regarding a sworn complaint a copy of the document establishing the
complainant's residency or real-property ownership in Texas.
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
Jason Boatright
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143175/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
8~16 *hall file 8 eopy:Jof luah aa8h l4 a oepr bf h%r
lppolntmeat with the texnr State Boor4 af Health;
and. until rush ooolee are 80 fll8d. 88id efflser
-&ail not be Qeed ~10
aad, ia &i&ttlon thirate, b
oh dutlar a8 ohall be pnrorlb84
for MD uuder thr rules, re(ul*tionr mid require-
sent8 o? the tcxaa Nat8 Board of Pealth, BC the
pro8ldeat thereof, and ir la p o wer m&l ml luthorltti
ttswtabllsh, aalntala awl enforoe quarantine within
h:r 6otmt7. He lhmll 8lao be npu1r.d to *id urd
nrrirt the Strte Board of okrltb la a11 matter* t3f
load quarantIa0, ia*potion, dleeaae DrOVWbt%OR
-a 8upg3re88ba, rltnl an4 aorWary 8tatistlo8 anil
gmeral unltrtlon wlthln hlr oowtr; and he rlull
at ell timer report to 8ata Itate bo8r4, la 8uoh
aunn*r nau f6rm aI it 8hnLl QlWOOr%k, the praroaar
of 811 oontagiorrr, lnf8e$iou8 o.ud baagebwur
eplderio 418#8re8 vlthla hi8 jurlm%letioq and he
rhe,ll~ske 8uah other end furthar ropertr ia 8uah
mnmtr adI form and et 8uoh blrer 88 raid St8te Bo8rd
lhall dlreot~ touohlng an ruah matters me my be
~ropctr for 8rld Stat. bawd to dlnot~ nud he 8h8ll
aid *aid State Ekwwi at 811 timer In the enrorwmsnt
bf it8 pro~w ruleo, nfp’L*tLoua, requlreaent8 8nd
ordlnanoo8, 8nd la the lnfaroeaent of r1.llraltmly
hur 8ud quarantlue Mgulstlaas wlthln hi8 jwrla-
dictlaa. * (Unffereoartngour81
Bonar8ble c. %OUOOS, pi&go3
lot8 thrrt rund#r &tiOl~ tilff t&S OOUQtJ hO81th
orrloer 18 requlr8d to *perform lvob alt188 88 hew boon
F0qUir.d Of OOUntl phlr8~OiJlO8, rlth TOl8tiOlt t0 OStiO~ ?Or
the.primmsrr in Oo WIty Ja il8 l * * a& other 8uoh dutlo8
80 MJ be lmirrlly requird of the oounty pbyala~ur br
the 8OMiB8iOMr8’ OOWt 8ad Other Off180~8 of the Omllty,
d rho11 di86har$O 81~7rddltioul d~tle8 whloh it ray k
9PQ98r iOr OOUOt7 8Uth0ritiSS d8r the pFO#Ont law t0
resulre of oouaty ph~8lol8n8;* l *'
oi OOUrSO, 88 YOU kWW, the &id.88 qaOM &OVO
#I’8 a pert of th* hot a? Oh* 91ra0 @dm WoolOll Of Thor
k~iShtW8 Of
ghf8101UI md
Uhat dutlea aould
Could they b8 r8W&?M k ltS8m# @8okW# tn the o0udy J811?
Zh18 W88 tht @VOW -8tta bOtON th0 tkPl'Om8COtUt ia
the #a80 of @d.wetn~~%tYnty t. Baolo, 91 tax. SW, 4S 8.Y.
198. hur8 tb0 086~U#loa#rU' Oaolpthdl llOOtOd the I9981180
oOWt;l 9h~SiO%&8 ul uong othtarduties rat forth La him e
golntmoat ho 18 wqulreU to dgtro 8o6loal lttontlom to the
prl8ebwro et tbo ail.* The qu0etwU WS the mahority 0r
the 6dtiiOUP'O !I@OUPt t0 win thW0 dutio8 Of &~~lOO
8nd ew akpmmo Court raidt
-0 we unuw*r
the first qU.StlW pro$#ealR584,
t;llt the Oslla1@81OMrr' OWFt Of ~TOStOll dOUIlt~
,.m outhorlaoU to nolo the owtr&ot for redloul
lOWiOO8 t0 b@ l’OOi38FO~ t0 ~&lOrS aad 9~~008,~O
! tW WhOSO O&W Wd SUpwl’t the OOWt~ It08 N-
qulcti to pPovlbe.e
The authority there me proMoat8di upon the fol~lowir(
868tUtO (n0w ~rt~el0 1037, c&O Of armed ~08&W8)!
OOU#t7 #h&%1 br 118b10 fOl' 811 OX9OlbOS
*&ah
iWUWOd OII 8OOWNBt Of th0 #St* kSaplU# Of 9F186Ib
em oonfinod in Jail or kept us&or pad, lxeopt
grironere brought fr08 8wtbr oowty for auf0
kemplag, Or On hrrb888 OOrplU Or Cihall#O
Of VSllUO;
in vhlah OllS~S the Soun)~ trOr uhloh th8 9rtSQWr
lr.braqht #hail be llabla tar the eXpen#e of hi8
r nh k a ~~np . l
The oaul¶t7'*aoty with rospret to %tS tJrlr8aon WOS
loT8 flmlf flxti b;r an tit of the L#gi81~tnn of 19m tnblr
hrtlalr 1040, C&e af Urlriml W%WekWe) providing, ln wCOI
'_
Honorable C. Sbwionm, pfkge 4
'For the lefe keeplng, lupnort and mmlntmnanas
of prlmonerm oonflned la 4811 or under qu8rd, the eher-
I?? shall be mllowed the tollowlng ohmrgmmr
‘3. For neoemrary mdloal bill and namesmbtm
! extra compmn88tlon for attention to 8 brimmnmr
during lioknccm, muoh mm amount ae the oo#slmmlonerm
: ” oourt of the count7 uhere the prlmoaer!. 18 eonfiamd
may detemlne to be Jurt md propmr,*
You are aaoordingly ldvlmeQ thet It la the duty of
the oounty hemlth ottlorr et the rmquemt of the oouil8slmker8~
oourt, the lherl?? or other qr,roper
authoritiee, to &ttead and
rendor mediaal amelnthnoc to urimonerm oontlnad in the awnt~
jail. Under Artlole 4423, lUDr 8, he mmy be mlloued lny rmuon-
able oaraenmatloa by the oouPl8mlonnr8' oourt Sor 8ny lenieem
aotually render&.
Your meooad qaemtlon la with rmmpmet to the llmbllIty
af the county for 8 nrlvate phymlolan~mfee when oalled by the
lhmri?? to Mnimter to 8 prleoner oonflamd In the oounty J8ill.
It ie clit?loultto sn8wer your qwstloa oategorlmal-
17. The llablllt~ o? the oount* for the tee of 8 ph~mislur other
than the oountr health offloor rumt 6epen4 upon the oUearmtrnoe8
involved In esoh vartloulmr otee. hportnrt ooneider8tlmnm ~113
be the lvailablllty 8d v~2ll~nmer at the oouaty km8Pth ottioer
to perform the dottern reqdre4, the UrganoJ of the SblliUes, rad
the reamon8blenemc of thm fem.
1Smmumlng the failure or retuul of the oounty health
offlaer or hle unavAilablllty and that aodlo8l Attention 18 ur-
gently needed by 8 oountr prl6Oaer, you AC0 mdVlmm6 that the
eherl?? mry bind the oountf for a remmnble pbymlolaa'm tee.
Wm had ooammian to oenmlder 8 llsllar qua8tlon ln
op1nlon lo. o-212. We were thara aonomrnmi aflth thm li8bility
O? the stata ?Or neoemrar~ hOmQit8llt8tiOn 8Bd Pmd%m81 8csrViOm8
readered a Qrlaoncr vhile in the oumtody o f l member of the
Texmm Jil&hvaj Fatrol. In mperklng of the Stk.th'mduty to
pr~monerm, we maid!
i
f
Honorable C. Slamonm, page 6
‘It lo the vcll emtabllmhmd genorml rule that
the duty 8 lhmrl?? or other pmaoe ottloer ovem to
-the etmte or to the 9ubllo to latel~ keep a prlmeaer
oowsltted to him wmtod~ and deliver him over to
the moper euthorltlma ot the prapbr time, la no
more compulsory than 1s the duty he owmm the orlmon-
er hlmmelt to exsrolme resmon8blm and srdlnaryomre
to protect hlm 1We end haalth. There tvo dutlem
are co-•xtenmlve an4 arlme by virtue of the oumtody
dmuoh prleoner by muah ottloer under orIsIn8l
oro0emm. 21 Rawle C. L. 0. 1173 (Primoam 8nd Frlmoaerm,
MO. 101. Logan v. U.8., 144 U.S. 26s 12 su9. ct.
617; 36 L.&l. 42Q; kx Prrts Jenklnm, 66 W.r. 560; Stmte
vm. Ciobln,94 Fed. 48.'
Xoreover, wm Doiatm6 out thet the or!t':oiloondltlmn
of A prlmoner aa3 rmqulre that medlo81 attentloa be rendend
by other8 than those umually required to perton lumh lerv~oem,
lwlws
'Am lllumtr8tlve of thlm bimormtion to WaIV8
ltatutory ton8lltlem Ia lnmrgmnolem, we olte the
aam of Lamar vm.Pike County, 30 I1.E. 912, holding
th8t a oounty nm118ble for wdloml ~ervloem
rendered by a ph~mlolan luaeoaed by the Jailer to
Attend & rrrlmonerIn 8n emergvnoy not adnIttIa(r
of the tour hour@' delay nememm8ry tcs grooura the
8ttenQr;ame of th e
leoretar~ et the board o? hellth,
rho remlded twlve ~11~ 8vaj from the Jill, aot-
vlthmkndlng the 88mtutm drovlddl ttmt the letter
lhoulQ rvnfierluob meblaal larvicce 8e wre N-
qulred by 9rlmanerm. Ths oourt maMd
*‘In the omme be?are urnIt vae the duty m?
Smith, the J8llOr la ahargr of the prlmoner 8nd
aotlng for the mherltt, to mummoB a ewpetent
phrmlolan under the exlmtlng easrgenej to treat
the prlmoner, and threby lave hlm life, I? muoh
eauld be dono. It vauld here bmea ~aexeum8ble
negleot OQ the part of the Jailer to have wmftmtl
tour hourm to m\uaan the leoraterjr of the baud
of hemlth, twlve 8lle8 dirttat, whoa the neaem-
lary redlaal mid oeuld be obtained mpmedlly dad
near ot hrnd, and u8m ersentlrl to move the llte
of the prlsoner . . . . Urnoannot believe that the
Honorable C. %1a8oam, page 6
l8v Intended where m n8n vam ln Jail, and In need
of medloal menlae under the everganey exirtlag
la thlm oame, where the bored of oouaty oonlm-
eloamrm hF.dlppolnted A leoretmr~ at the bored of
hemlth, vhoee duty It wmm la muoh dame8 to render
muoh medloel 8mmlmtmnoe, but whome remldenoe wee
lo resote tram the oounty Jell thet he soula not
be prooured In time to render the aiA nutled, thmt
the orlmoner lhmula be left to mutter and perhpm
&lo, and that the eountf would not be liable for
the lervlaom thum renderml by A p~mIolmn uader
the erplo~ment of the j8Iler bavlag the prleaner
in oharge.'*
Cartmlnlj 8 county owe* no gremter tlwtrto It8
paper8 th8n to ltr prlmonerm, end long ago the Teum Oourt
o? 4ppemlm held In Xonghoa It&lmmoa v. VAR Zanttt bUatJ, 8
Wl'ilmon,Clv. Cam. Ct. App., seetloa 198, ttmt a county
warnliable for sedioal m~rvloem rendered A pauper mt the
requemt at the oounty Judge aaU a cuber of the -1melloaere
oourt . The oourt 8mIQr
~Countlam an reqalrsd to provide tar thW
'muppnort'of their pauper@. 'Suuopert,'am umed
here, ueane more than n~pvl~lag them v;;hnptit
and alothlng 8nd a Boame to atal In.
~11 that 18 noeemmaryto bmdlly he8lth rrnd@ma-
fort, a d lmpeolally dorr It lnolu8e prope&;;m,
clttentlonsnd tremtaent aumg l~oknemm.
18 m luprmme oblIg8tlOa of hruanlt~, lndepoa4ent
of any 6trtutory unflmte. And whare aaequ8te pro-
vlmlon hnm not bmen am&e bf the eaulmmlouerm'
oourt to ?urnlmh theam prI8e neoemoitlem of life,
the oounty Judge, bmlng the prlnoIpml rmprmrent~-
tlve of the eouats, or 8ay other member of the
oo~lmmIonerm~ aeurt, aan, by eontrmot, bind thm
oountf la say reamon8bla mum nooemmmry tar th0
lup~:jort of m pruper. Ulthaut A ~MViOU8 OOUtFAOt
ta that e?teot, It la 0810 of 8lokOere e phYmI018~
ehould glve hlm protemmiasll #arm And rttmRtlOn to
8 wmr, ma implied oantrmet to pmf tar muoh
lervloem A rmrmonrble AOSpeR8ution vould lXi@ t
on the part of the couIPty. Ia thlm oame therm
irn no quemtlon but that the lervloee renderetl
Woaorebl* c. Siamonr, QSge 7
by ap?ellants were neoeerrry, ad we- well end
skillfully verformed, and that the amount olalned
.therrfor le remoneble. Suah beIn& the cane, it
Is the duty of the oounty to pay the mount
olalmee; wherefore the Judgment 18 revermee, and
Judgment lo here ranfier?rd far e~ellrnte nealnet
appellee for the amount olalaed and oostm.’
It 18 therefore our oonrldered oplnloa tml you am
ldvIee5 that when the oount;l health offleer Ie umtilllag or
utmbh to attend ant3a private
~hyrIoIrn Ie oalled by thr
lheriif, the county Ie liable for rearenable feee reeulting
from hl8 a:nIetratIon to a oounty orleoner urgently in need
of medlo81 attontlon.
’ / Aseletant
/
COMMn-mL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128151/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 26, 2010
Mr. Robert Scott Opinion No. GA-0794
Commissioner of Education
Texas Education Agency Re: Whether section 11.1513 of the Education
1701 North Congress Avenue Code prohibits a school superintendent to whom
Austin, Texas 78701-1494 final selection of personnel is delegated from
employing persons related to trustees of his district
(RQ-0842-GA)
Dear Mr. Scott:
You ask several questions related to whether subsection I 1.1 513(f) of the Education Code,
when read in conjunction with section 573.041 of the Government Code, prohibits school districts
from employing relatives of members of a school district board of trustees when the board has
delegated final authority for selection of personnel to the district superintendent. I
Chapter 573 of the Government Code regulates the appointment or employment of a public
official's close relatives to positions within the official's appointment or confirmation authority.
See TEx. GOV'T CODE ANN. §§ 573.001(3), .041, .061 (Vernon 2004). Section 573.041 of the
Government Code states:
A public official may not appoint, confirm the appointment of,
or vote for the appointment or confirmation of the appointment of an
individual to a position that is to be directly or indirectly compensated
from public funds or fees of office if:
(1) the individual is related to the public official within a
degree described by Section 573.0022; or
IRequest Letter at 1-2 (available at http://www.texasattorneygeneral.gov).
'Section 573.002 generally describes the individuals affected by section 573.041 as those with "relationships
within the third degree by consanguinity or within the second degree by affmity" of a public official. TEX. GOV'T CODE
ANN. § 573.002 (Vernon 2004).
Mr. Robert Scott - Page 2 (GA-0794)
(2) the public official holds the appointment or confinnation
authority as a member of a state or local board, the legislature, or a
court and the individual is related to another member of that board,
legislature, or court within a degree described by Section 573.002.
Id. § 573.041 (footnote added).3
As you note, in 2003, this office explained that under the nepotism laws then in place, "a
member of a school board that has delegated to the superintendent final authority for personnel
selection is not a public official with appointment authority for purposes of section 573.041." Tex.
Att'y Gen. Op. No. GA-0123 (2003) at 3. Attorney General Opinion GA-0123 therefore concluded
that a superintendent could employ a relative of a board member if the superintendent had been
delegated final authority to select personnel. Id. Subsequently, the Legislature enacted subsection
11.1513(f) of the Education Code, which states:
If, under the employment policy, the board oftrustees delegates to the
superintendent the final authority to select district personnel:
(l) the superintendent is a public official for purposes of
Chapter 573, Government Code, only with respectto a decision made
under that delegation of authority; and
(2) each member of the board of trustees remains subject to
Chapter 573, Government Code, with respect to all district
employees.
TEx. EDUC. CODE ANN. § 11.1513(f) (Vernon SUpp. 2009).
You first ask "whether, after the enactment of Section 11.1513 (f), a superintendentto whom
fmal selection of personnel is delegated continues to have the discretion to employ persons related
to board members as [this office] concluded in GA-0123." Request Letter at 1. You explain that
"it appears that the intended purpose of Section 11.1513(f) was to prohibit a superintendent from
selecting for employment a person who is related to a member of the board of trustees if the board
would be prohibited under Chapter 573, Government Code" from doing so. Id. However, due to
the specific language of Government Code section 573.041, "a question has been raised as to
whether the prohibition ... might not apply" to a school district's superintendent. Id. Your question
arises because a superintendent, as the public official with final authority to select personnel in a
school district, "is not 'a member of a state or local board' as contemplated by Subsection
573.041(2)." Id.
'Section 573 .061 ofthe Government Code establishes certain exceptions to the application ofthis rule, including
certain school district's appointment of bus drivers and the employment of substitute teachers. Id § 573.061(4), (6).
Mr. Robert Scott - Page 3 (GA-0794)
In construing statutes, our primary objective is to ascertain and give effect to the Legislature's
intent. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). We give effect to the legislative
intent as it is expressed by the plain meaning of words used in the statute unless the context
necessarily requires a different construction. City o/Waco v. Kelley, 309 S.W.3d 536, 542 (Tex.
2010). We must examine the Legislature's words in context of the statute as a whole and not
consider words or parts of the statute in isolation. ld.
You are correct that a superintendent does not hold "appointment or confirmation authority
as a member ofa state or local board." See TEX. GOV'T CODE ANN. § 573.041(2) (Vernon 2004)
(emphasis added). A superintendent is not a school board member. Thus, when read in isolation,
it may appear that section 573.041 does not prohibit a superintendent, who has been delegated final
authority for personnel selection, from employing a relative of a school board member. However,
when analyzing this provision from the perspective of a school district superintendent, section
573.041 must not be read in isolation, but instead must be read in conjunction with section
11.1513(f) ofthe Education Code. By enactment of section 11.1513(f), the Legislature made it clear
that "each member of the board of trustees remains subject to Chapter 573, Government Code, with
respect to all district employees" even when the board "delegates to the superintendent the fmal
authority to select district personnel." TEx. EDUC. CODE ANN. § 11.1513(f)(2) (Vernon Supp. 2009)
(emphasis added).
If a board has delegated final authority to select district personnel to the superintendent, its
members will not be in the position of appointing, voting for, or confirming individuals for
employment. Cj Hurley v. Tarrant County, 232 S.W.3d 781, 789 (Tex. App.-Fort Worth 2007,
no pet.) (explaining that because a county civil service commission has "final authority" over the
decision to demote, suspend or terminate an employee, "[n]o other county official or body has
authority over the commission's employment decisions"). Thus, the only meaning to be derived
from subsection 11.1513(f)(2) is that, despite the board's delegation, relatives of board members
continue to be prohibited from employment, implicitly prohibiting the superintendent from
employing them. It is presumed that the Legislature, in adopting amendments to statutes, intended
to make some change in the existing law. Tex. Att'y Gen. Op. No. GA-0395 (2006) at 4 (citing Am.
Sur. Co. o/N. Y v. Axtell Co., 36 S.W.2d 715, 719 (Tex. 1931)). Prior to the Legislature's enactment
of subsection 11.1513(f)(2), this office interpreted the law to allow superintendents with final
authority for personnel selection to hire the relative of a board member. Tex. Att'y Gen. Op. No.
GA-0123 (2003) at 3. Therefore, interpreting section 573.041 of the Government Code to allow
superintendents with final authority for personnel selection to hire the relative of a board member
would render the Legislature's subsequent enactment of subsection 11.1513(f)(2) unnecessary. By
amending the statute, it is clear that the Legislature intended to change the law, and we must give
meaning to this change. See Cityo/Houstonv. ClearCreekBasinAuth., 589 S.W.2d671, 681 (Tex.
1979) ("It is apparent in amending the statute, the legislature intended some change in the existing
law, and this court will endeavor to effect the change."). Thus, pursuant to Education Code section
11.1513(f), the Legislature has generally prohibited a school district, either through its board of
Mr. Robert Scott - Page 4 (GA-0794)
trustees or superintendent to whom final selection ofpersonnel is delegated, from employing persons
related to board members within the degrees described in chapter 573 of the Government Code. 4
You next ask whether the limitation "applies only if the district or the majority ofthe territory
of the district is located in a county with a population of at least 35,000." Request Letter at 2. When
it adopted section 11.1 513(f), the Legislature made an exception for school districts located in
smaller counties:
Subsection (f) does not apply to a school district that is located:
(I) wholly in a county with a populationofless than 35,000;
or
(2) in more than one county, if the county in which the
largest portion of the district territory is located has a population of
less than 35,000.
TEx. EDUC. CODE ANN. § l1.l513(g) (Vernon Supp. 2009). Based on the plain language of this
statute, it seems apparent that the Legislature intended to avoid applying the restrictions found in
subsection (f) to those school districts described in subsection (g). Thus, subsection 11.1513(f) of
the Education Code and section 573.041 of the Government Code do not prohibit a superintendent
who has been delegated final authority for personnel selection and whose school district is located
in an area described by subsection 11.1513(g) from employing a relative of a member of the school
district board of trustees.
Your final question asks whether a violation ofthe nepotism prohibition in section 573.041
"subjects the superintendent to penalties under Subchapter E, Chapter 573, Government Code and
whether such a violation by the superintendent subjects members of the board to penalties under
Subchapter E, Chapter 573, Government Code, even though the board did not make the employment
decision." Request Letter at 2. Under subchapter E, "[a]n individual who violates [the nepotism
prohibitions] shall be removed from the individual's position" and "commits an offense involving
official misconduct ... punishable by a fine not less than $100 or more than $1,000." TEx. GOV'T
CODE ANN. §§ 573.081(a) (Vernon 2004) ("Removal in General"), 573.084(a)--{b) ("Criminal
Penalty'').
4Multiple state organizatious iuterpreting section 11.1513 of the Education Code have similarly concluded that
a superintendent would be prohibited from employing persons related to board members within the degrees of affinity
and consanguinity described in chapter 573 ofthe Government Code. See TEXAS ASS'N OF SCH. BDS., LEGAL SERVICES,
"Conflicts of Interest: Nepotism" at 2-3 (July 2008), available at http://www.tasb.org/services/legal/documents/
conflicUnt_nepotis.pdf(last visited Aug. 16, 2010); TEXAS EDUC. AGENCY, OFFICE OF LEGAL SERVICES, "School Board
Questions", available at http://ritter.tea.state.tx.us/legal/schoolboard.html ("Even if a school board does not approve a
staff appointment, the nepotism law would still apply to the school board because the board has authority to approve or
disapprove an appointment even if it doesn't actually do so.") (last visited Aug. 16,2010).
Mr. Robert Scott - Page 5 (GA-0794)
With respect to a superintendent who has been delegated final authority to select district
personnel, the Legislature has defined that position as "a public official for purposes of Chapter 573,
Government Code, only with respect to a decision made under that delegation of authority." TEx.
EDUC. CODE ANN. § 11.l513(f)(1) (Vernon Supp. 2009). Under section 573.041, "[aj public official
may not appoint, confirm the appointment of, or vote for the appointment or confirmation of the
appointment of an individual if ... the public official holds the appointment or confirmation
authority as a member of a state or local board, the legislature, or a court and the individual is related
to another member ofthat board, legislature, or court within a degree described by Section 573 .002."
TEx. GOy'T CODE ANN. § 573.041 (Vernon 2004). We have concluded above that Education Code
subsection 11.1513(f)(2) and Government Code section 573.041 prohibit a school district, either
through its board of trustees or superintendent to whom final selection of personnel is delegated,
from employing relatives of the school board.
However, as we noted above, a superintendent does not hold "appointment or confirmation
authority as a member ofa state orlocal board." See id. § 573.041(2) (emphasis added). We believe
a superintendent with final hiring authority could read Education Code subsection 11.1513(f)(2) and
Government Code section 573.041 and reasonably conclude that the provisions do not apply
specifically to the superintendent.
Whether the school board members are subject to penalties when they did not make the
employment decision is a separate question but raises a similar concern. In amending subsection
11.1513(f), the Legislature stated that "each member of the board of trustees remains subject to
Chapter 573, Government Code, with respect to all district employees." TEx. EDuc. CODE ANN.§
11.1513(f)(2) (Vernon SUpp. 2009). Such language could be interpreted to mean that the nepotism
provisions, including the criminal penalties, continue to apply to board members even if they
delegate to the superintendent final authority to select district personnel. However, a public official
is subject to the nepotism penalties only by appointing, confirming the appointment of, or voting for
the appointment or confirmation of an individual unauthorized to hold the employment. TEx. GOy'T
CODEANN. § 573.041 (Vernon 2004). If the board of trustees has delegated final authority to select
district personnel to the superintendent, as the Legislature has expressly authorized it to do, then the
board members will not be appointing, confirming the appointment of, or voting for the appointment
of employees of the district, as required in order for the nepotism penalties to apply. TEx. EDuc.
CODEANN. § 11.1513(a)(2) (Vernon Supp. 2009); see also Tex. Att'yGen. Op. No. JC-0184 (2000)
at 2 (concluding that because a board member abstained from voting on the appointment of her
spouse, she had not violated section 573.041, although the board members voting in favor of his
appointment did violate that provision); cf Tex. Att'y Gen. Op. No. 0-793 (1939) at 3 (concluding
that a board member who voted against the appointment of a person related to another board member
"would not be liable to prosecution" if the other members of the board appointed the unauthorized
individual).
It is a long-settled rule of law that a penal statute "must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable to its penalties."
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926). Considering the lack of clarity in these
provisions, we refrain from concluding that a superintendent to whom final selection of personnel
Mr. Robert Scott - Page 6 (GA-0794)
is delegated and who hires a board member's relative will be subject to the penalties of subchapter
E, chapter 573 of the Government Code. Similarly, we refrain from concluding that school board
members that have delegated fmal hiring authority to the superintendent could be subject to the
nepotism penalties when they did not appoint, confirm the appointment of, or vote for the
appointment or confirmation of an individual unauthorized to hold the employment with the district.
If the Legislature intends otherwise, it may expressly amend the statute to so provide.
Mr. Robert Scott - Page 7 (GA-0794)
SUMMARY
Pursuantto subsection 11.1513(f) of the Education Code, the
Legislature has generally prohibited a school district, either through
its board of trustees or its superintendent to whom final selection of
personnel is delegated, from employing persons related to members
of the school district's board of trustees within the degrees described
in chapter 573 of the Government Code.
Pursuant to Education Code subsection 11.1513(g), a
superintendent who has been delegated fmal authority for personnel
selection may employ a relative of a member of the school district
board of trustees if the superintendent's school district is located: (I)
wholly in a county with a population of less than 35,000; or (2) in
more than one county, ifthe county in which the largest portion of the
district is located has a population of less than 35,000.
Under chapter 573 of the Government Code, criminal
penalties may be imposed on a public official who appoints, confirms
the appointment of, or votes for the appointment or confirmation of
the appointment of an individual if the public official holds the
appointment or confirmation authority as a member of a state or local
board, the legislature, or a court and the individual is related to
another member of that board, legislature, or court within a degree
described by section 573.002. Section 11.1513(f) of the Education
Code is not clear as to whether the criminal penalties would apply to
a superintendent with final hiring authority or to board members that
delegated that final authority. Due to the long-settled rule oflaw that
a penal statute must be sufficiently explicit to inform those who are
subject to it what conduct on their part will render them liable to its
penalties, we refrain from concluding that the superintendent or the
board members could be subject to these penalties. If the Legislature
intends otherwise, it may expressly amend the statute to so provide.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4399408/ | People v Izzo (2019 NY Slip Op 03987)
People v Izzo
2019 NY Slip Op 03987
Decided on May 22, 2019
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on May 22, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2017-07289
(Ind. No. 9791/16)
[*1]The People of the State of New York, respondent,
vJoe Izzo, appellant.
Paul Skip Laisure, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joanne Quinones, J.), rendered June 14, 2017, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 U.S. 738), in which he moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgement is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 U.S. 738), and upon an independent review of the record, we agree that there are no nonfrivolous issues that could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see id.; People v Murray, 169 AD3d 227; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; cf. People v Gonzalez, 47 NY2d 606).
BALKIN, J.P., CHAMBERS, COHEN, BARROS and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 05-22-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4128082/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-903
of :
: December 5,
1997
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE DICK MONTEITH, MEMBER OF THE CALIFORNIA
STATE ASSEMBLY, has requested an opinion on the following question:
May a school district adopt a "zero tolerance" policy mandating expulsion of a
student for a first offense involving the possession of a controlled substance or alcohol?
CONCLUSION
A school district may not adopt a "zero tolerance" policy mandating expulsion of a
student for a first offense involving the possession of a controlled substance or alcohol.
Such an automatic expulsion policy would contravene state law as explicitly determined
by the Legislature.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme (Ed. Code,
§§ 48900-48926) Footnote No. 1 governing the suspension and expulsion of pupils from
elementary and secondary schools. "Suspension" is defined as the "removal of a pupil
from ongoing instruction for adjustment purposes . . ." (§ 48925, subd. (d)), is limited to
five consecutive days (§ 48911, subd. (a)), and may be imposed by the school principal or
the district superintendent on the basis of an informal conference with the pupil (§ 48911
subd. (b)). "Expulsion" is the "removal of a pupil from (1) the immediate supervision and
control, or (2) the general supervision, of school personnel . . . ." (§ 48925, subd. (b).)
Expulsion, as the most drastic measure a school district may take in response to student
offenses, "must be exercised with great care." (57 Ops.Cal.Atty.Gen. 439, 441 (1974).)
Footnote No. 2
We are asked whether a school district may adopt a "zero tolerance" policy requiring
the expulsion of any student who commits a controlled substance or alcohol possession
offense, even if the student has no prior record. We conclude that such an automatic
expulsion policy would contravene state law.
Expulsion requires a hearing for the pupil and his or her parent or guardian before
the governing board of the school district (§ 48918, subd. (a)), a hearing officer, or
administrative panel (§ 48918, subd. (d)) within 30 schooldays from the date of the
expulsion recommendation made by the school principal or the district superintendent
(§ 48918, subd. (a)) and may be appealed to the county board of education (§ 48919).
The offenses that may result in expulsion--including expulsion for the possession,
use, sale, or provision of a controlled substance or an alcoholic beverage or intoxicant--
are set forth in section 48900:
"A pupil may not be suspended from school or recommended for expulsion unless
the superintendent or the principal of the school in which the pupil is enrolled determines
that the pupil has:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) Unlawfully possessed, used, sold, or otherwise furnished, or been under the
influence of any controlled substance . . , an alcoholic beverage, or an intoxicant of any
kind.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
With specific regard to expulsions for offenses involving controlled substances or alcohol,
section 48915 provides:
"(a) Except as provided in subdivision[] (c) . . . , the principal or the superintendent
of schools shall recommend the expulsion of a pupil for any of the following acts
committed at school or at a school activity off school grounds, unless the principal or
superintendent finds that expulsion is inappropriate, due to the particular circumstance:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) Unlawful possession of a controlled substance . . . , except for the first offense
for the possession of not more than one avoirdupois ounce of marijuana, other than
concentrated cannabis.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(b) Upon recommendation by the principal, superintendent of schools, or by a
hearing officer or administrative panel appointed pursuant to subdivision (d) of section
48918, the governing board may order a pupil expelled upon finding that the pupil
committed an act listed in subdivision (a) or in subdivision . . . (c) . . . of section 48900.
A decision to expel shall be based on a finding of one or both of the following:
"(1) Other means of correction are not feasible or have repeatedly failed to bring
about proper conduct.
"(2) Due to the nature of the act, the presence of the pupil causes a continuing
danger to the physical safety of the pupil or others.
"(c) The principal or superintendent of schools shall immediately suspend . . . and
shall recommend expulsion of a pupil that he or she determines has committed any of the
following acts at school or at a school activity off school grounds:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) Unlawfully selling a controlled substance . . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) The governing board shall order a pupil expelled upon finding that the pupil
committed an act listed in subdivision (c) . . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Section 48914 requires the governing board of each school district to establish rules and
regulations governing procedures for the expulsion of pupils.
The proposed zero tolerance policy, as contemplated in the question presented,
would call for the principal or superintendent to recommend expulsion of a student for
the first instance of any of the offenses involving controlled substances or alcohol, and
for the district board to decide in favor of the recommended action by finding either that
"[o]ther means of correction are not feasible" (§ 48915, subd. (b)(1)) or that "[d]ue to the
nature of the act, the presence of the pupil causes a continuing danger to the physical
safety of the pupil or to others" (§ 48915, subd. (b)(2)). Drug and alcohol offenses would
be treated as automatically meeting one of these criteria.
A school district may, it is argued, reasonably conclude that because of an
intractable and ongoing drug problem at its schools, other means of correction are not
feasible, particularly where notwithstanding repeated and emphatic warnings against
student involvement with drugs and alcohol, the pupil has knowingly violated the rules. It
is also argued that because of the impaired physical and mental state that drugs and
alcohol can produce, particularly in impressionable young persons who are not fully
cognizant of their limits, the nature of the offense is such that the presence of a pupil who
has knowingly violated the zero tolerance policy represents a continuing danger to the
physical safety of other pupils. Thus, it is contended that any violation of the zero
tolerance policy may be treated by the district board as satisfying one or both of the
criteria set forth in section 48915, subdivision (b).
In effect, the proposed zero tolerance policy would mean that the principal, the
superintendent, and the district board must treat the first offense as leading inexorably to
expulsion because the district has concluded that any drug or alcohol offense inherently
meets the criteria of section 48915, subdivision (b). As part of the zero tolerance policy,
all students would be given explicit warning as to the consequences of a violation. The
deterrent effect of the policy would be based upon the students' knowledge that the first
instance of any of the offenses involving controlled substances or alcohol would, without
exception, result in expulsion.
In determining whether the proposed local school policy would be consistent with
state law, we look to well-established principles of statutory construction when
interpreting the controlling language of sections 48900-48926. 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.]"
Initially, we observe that section 48915 identifies one situation in which an offense
involving controlled substances must result in expulsion. The principal or superintendent
"shall" immediately suspend and "shall" recommend expulsion of a pupil who he or she
determines has committed the act of unlawfully selling a controlled substance at school
or at a school activity off school grounds. (§ 48915, subd. (c)(3).) The governing board of
the district "shall" order such pupil expelled upon finding that the pupil did commit the
offense in question. (§ 48915, subd. (d).) Expulsion is also mandated for three other
offenses that directly involve physical safety. Footnote No. 3 Non-sale offenses involving
controlled substances require that the principal or superintendent "recommend" expulsion,
unless the responsible official "finds that expulsion is inappropriate, due to the particular
circumstance." (§ 48915, subd. (a).) This legislative directive, however, does not apply to
"the first offense for the possession of not more than one avoirdupois ounce of marijuana,
other than concentrated cannabis." (§ 48915, subd. (a)(3).)
The district board "may," upon recommendation of the principal or the
superintendent, order a pupil expelled upon finding that the pupil committed one of the
acts in question. (§ 48915, subd. (b).) However, as noted previously, such decision must
be based upon a finding that other means of correction are not feasible or have repeatedly
failed to bring about proper conduct (§ 48915, subd. (b)(1)) Footnote No. 4 or that, due to
the nature of the act, the presence of the pupil would cause a continuing danger to the
physical safety of the pupil or others. (§ 48915, subd. (b)(2).)
With regard to the finding set forth in subdivision (b)(1) of section 48915, the
district would necessarily rely on a lack of success in utilizing other means of correction
for drug and alcohol offenses. We believe such past experience must be with respect to
the particular pupil whose expulsion proceeding is before the district. For example, a
pupil whose record suggests a tractable nature or who demonstrates genuine remorse for
his or her actions may be suspended (§ 48900.5) or required to perform community
service on school grounds during nonschool hours (§ 48900.6). A finding under
subdivision (b)(1) of section 48915 that does not take into account individualized
circumstances may deny the pupil's right to due process. (See Garcia v. Los Angeles
County Bd. of Education (1981) 123 Cal. App. 3d 807, 810-813.)
Under subdivision (b)(2) of section 48915, the inquiry is whether, in view of the
nature of the act, the continued presence of the pupil would pose a risk to the physical
safety of the pupil or others. This finding, with its focus on the nature of the act, lends
itself to a more categorical approach. However, a rational connection must still be made
between the presence of the student on campus and a continuing danger to the physical
safety of the pupil or others. (See Tot v. U.S. (1943) 319 U.S. 463, 466-468; Rafaelli v.
Committee of Bar Examiners (1972) 7 Cal. 3d 288, 291-301; Mike Moore's 24-Hour
Towing v. City of San Diego (1996) 45 Cal. App. 4th 1294, 1306.) Drug or alcohol use by
its very nature poses a danger to the physical safety of the user, particularly if the user is
a minor. Those who must interact with one who uses drugs or alcohol may also be at risk
as to their physical safety. However, it would be difficult to conclude that the offending
pupil must be removed from the school in order to avert a continuing danger to his or her
physical safety or that of other pupils in all cases.
Leaving aside questions of arbitrariness and lack of evidentiary support, the fatal
flaw we find in the proposed policy is that it is in conflict with the Legislature's
determination that mandatory expulsion is for the most serious offenses, namely,
possessing, selling, or otherwise furnishing a firearm; brandishing a knife at another
person; unlawfully selling a controlled substance; or committing or attempting to commit
a sexual assault or battery. (§ 48915, subd. (c).) Indeed, the Legislature does not even
direct consideration of expulsion for all drug offenses; it excepts from such
administrative action a first offense possession of one ounce or less of marijuana.
(§ 48915, subd. (a)(3).) Footnote No. 5 Other than with respect to the four extremely
serious offenses listed in section 48915, subdivision (c)(3), a district may not refuse to
exercise the discretionary authority granted to it under the statutory scheme.
Instead, the Legislature intended a case-by-case application of the criteria set forth
in section 48915, subdivision (b), since an expulsion results in such serious consequences
for the student and for the district in terms of the alternative educational arrangements
that must be made for the expelled student. (See § 48916.) We also note that the use of an
automatic approach in dealing with drug and alcohol offenses would make subdivision
(b)(2) of section 48915 virtually meaningless. If every drug or alcohol possession offense
may be deemed to cause a continuing danger to the physical safety of the pupil or others,
so also may the other offenses listed in subdivision (a) of section 48915, since they
involve the infliction of physical injury or the threat thereof. In order for subdivision
(b)(2) of the statute to have any real significance, the offenses least likely to produce a
direct physical threat (e.g., a first time alcohol possession offense) must be viewed as
eligible for diversion of the student into disciplinary channels other than expulsion. To
remove offenses from consideration of non-expulsion disciplinary action simply because
they involve drugs or alcohol would make such offenses subject to harsher treatment than,
for example, causing serious physical injury to a pupil in a schoolyard gang attack. The
Legislature has already decided that only one particular drug offense warrants mandatory
expulsion--the sale of a controlled substance. (§ 48915, subd (d).) A school district may
not undermine such legislative determination in fashioning its own mandatory expulsion
policy.
Accordingly, we conclude that a school district's proposed zero tolerance policy
which would mandate expulsion for a first offense involving possession of a controlled
substance or alcohol would be inconsistent with state law governing expulsions of school
students and therefore may not be adopted by a school district.
*****
Footnote No. 1
All section references herein are to the Education Code.
Footnote No. 2
In 80 Ops.Cal.Atty.Gen. 85, 87-88 (1997), we concluded that a school district may suspend the
enforcement of an expulsion order.
Footnote No. 3
These offenses are: possessing, selling, or otherwise furnishing a firearm; brandishing a knife at another
person; and committing or attempting to commit a sexual assault or committing a sexual battery. (§ 48915,
subd. (c)(1), (2), (4).)
Footnote No. 4
As we are concerned here with first offenses, the second clause of section 48915, subdivision (b)(1) would
not, as a practical matter, be available as a basis for the district's decision to expel.
Footnote No. 5
We also note that the Legislature has explicitly recognized suspension as an appropriate disciplinary
measure for a first offense involving a controlled substance or alcohol. Section 48900.5 provides in part as
follows:
"Suspension shall be imposed only when other means of correction fail to bring about proper conduct.
However, a pupil . . . may be suspended for any of the reasons enumerated in Section 48900 upon a first
offense, if the principal or superintendent of schools determines that the pupil violated subdivision (a), (b),
(c), (d), or (e) of Section 48900 or that the pupil's presence causes a danger to persons or property or
threatens to disrupt the instructional process." | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128085/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-703
of :
: December 5, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE JAMES L. BRULTE, MEMBER OF THE CALIFORNIA SENATE,
has requested an opinion on the following question:
May a California innkeeper electronically record all incoming telephone conversations so
that a voiceprint may be obtained in the event a bomb threat is made?
CONCLUSION
A California innkeeper may not electronically record all incoming telephone conversations
so that a voiceprint may be obtained in the event a bomb threat is made. However, an individual telephone
conversation that contains a bomb threat may be recorded.
ANALYSIS
We are advised that bomb threats made by telephone callers to hotels and motels have
become an increasing problem for innkeepers throughout the state. We are asked whether, as a means of
preserving evidence that may be used to identify and prosecute those who make such threats, an innkeeper
may electronically record all incoming telephone calls. Specifically, may innkeepers use a recording device
similar to an aircraft's cockpit voice recorder in which the tape would be examined or replayed only in the
event a threat were received? Otherwise, the tape would be erased by recording the next conversation. No
calls to guests would be recorded, and no warning device would advise callers of the recording. We conclude
that such a procedure recording all incoming telephone calls would violate California law. However, an
individual telephone conversation containing a bomb threat may legally be recorded.
The Legislature has enacted a comprehensive statutory scheme, the Privacy Act (Pen. Code,
§§ 630-637.6), Footnote No. 1 governing and generally prohibiting the "invasion of privacy," including the
recording of telephone conversations. Section 630 states:
"The Legislature hereby declares that advances in science and technology have led to
1 of 5
g y gy
the development of new devices and techniques for the purpose of eavesdropping upon private
communications and that the invasion of privacy resulting from the continual and increasing use
of such devices and techniques has created a serious threat to the free exercise of personal
liberties and cannot be tolerated in a free and civilized society.
"The Legislature by this chapter intends to protect the right of privacy of the people
of this state.
"The Legislature recognizes that law enforcement agencies have a legitimate need to
employ modern listening devices and techniques in the investigation of criminal conduct and the
apprehension of law-breakers. Therefore, it is not the intent of the Legislature to place greater
restraints on the use of listening devices and techniques by law enforcement agencies than
existed prior to the effective date of this chapter."
Section 631 implements these legislative policies by providing:
"(a) Any person who, by means of any machine, instrument, or contrivance, or in any
other manner, intentionally taps, or makes any unauthorized connection, whether physically,
electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line,
cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic
communication system, or who willfully and without the consent of all parties to the
communication, or in any unauthorized manner, reads, or attempts to read, or to learn the
contents or meaning of any message, report, or communication while the same is in transit or
passing over any wire, line, or cable, or is being sent from, or received at any place within this
state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in
any way, any information so obtained, or who aids, agrees with, employs, or conspires with any
person or persons to unlawfully do, or permit, or cause to be done any of the acts or things
mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred
dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by
imprisonment in the state prison, or by both a fine and imprisonment in the county jail or in the
state prison. . . .
"(b) This section shall not apply (1) to any public utility engaged in the business of
providing communications services and facilities, or to the officers, employees or agents thereof,
where the acts otherwise prohibited herein are for the purpose of construction, maintenance,
conduct or operation of the services and facilities of the public utility, or (2) to the use of any
instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public
utility, or (3) to any telephonic communication system used for communication exclusively
within a state, county, city and county, or city correctional facility. . . ."
Section 631 is supplemented by prohibitions against the interception of cellular telephone communications
(§ 632.5), cordless telephone communications (§ 632.6), and the recording of such communications
(§ 632.7).
While the foregoing statutes deal with the interception of telephone conversations (generally
referred to as "wiretapping"), the Legislature has also prohibited the use of electronic equipment to eavesdrop
on any confidential communications. Section 632 states:
"(a) Every person who, intentionally and without the consent of all parties to a
confidential communication, by means of any electronic amplifying or recording device,
eavesdrops upon or records the confidential communication, whether the communication is
carried on among the parties in the presence of one another or by means of a telegraph,
t l h th d i t di h ll b i h d b fi t di t
2 of 5
telephone, or other device, except a radio, shall be punished by a fine not exceeding two
thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one
year, or in the state prison, or by both that fine and imprisonment. . . .
"(b) The term `person' includes an individual, business association, partnership,
corporation, limited liability company, or other legal entity, and an individual acting or
purporting to act for or on behalf of any government or subdivision thereof, whether federal,
state, or local, but excludes an individual known by all parties to a confidential communication
to be overhearing or recording the communication.
"(c) The term `confidential communication' includes any communication carried on in
circumstances as may reasonably indicate that any party to the communication desires it to be
confined to the parties thereto, but excludes a communication made in a public gathering or in
any legislative, judicial, executive or administrative proceeding open to the public, or in any
other circumstance in which the parties to the communication may reasonably expect that the
communication may be overheard or recorded.
".........................................
"(e) This section does not apply (1) to any public utility engaged in the business of
providing communications services and facilities, or to the officers, employees or agents thereof,
where the acts otherwise prohibited by this section are for the purpose of construction,
maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the
use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of
a public utility, or (3) to any telephonic communication system used for communication
exclusively within a state, county, city and county, or city correctional facility. . . ."
The foregoing statutes constitute a general prohibition on wiretapping and eavesdropping.
They would prohibit the use of an electronic device to record incoming telephone calls to a hotel or motel
unless (1) such calls are not deemed to be confidential or (2) there is an exemption available for innkeepers.
We will consider each of these possibilities in turn.
In Ribas v. Clark (1985) 38 Cal. 3d 355, the court ruled that listening to a telephone
conversation on an extension telephone without the knowledge of the caller violated section 631. The court
stated:
". . . the Privacy Act has long been held to prevent one party to a conversation from
recording it without the other's consent. [Citations.] While one who imparts private information
risks the betrayal of his confidence by the other party, a substantial distinction has been
recognized between the secondhand repetition of the contents of a conversation and its
simultaneous dissemination to an unannounced second auditor, whether that auditor be a person
or mechanical device. [Citation.]
"As one commentator has noted, such secret monitoring denies the speaker an
important aspect of privacy of communication -- the right to control the nature and extent of the
firsthand dissemination of his statements. [Citation.] Partly because of this factor, the Privacy
Act has been read to require the assent of all parties to a communication before another may
listen. [Citation.]" (Id., at pp. 360-361.) Footnote No. 2
A similar conclusion was reached by the court in Frio v. Superior Court (1988) 203
Cal. App. 3d 1480, where one party to a telephone conversation, without the knowledge or consent of the other
party, used a telephone answering machine to record the conversation. The court observed:
3 of 5
"The legislative history of section 632 is replete with references to the Legislature's
intent to strengthen then existing law by `prohibiting wiretapping or "electronic eavesdropping"
without the consent of all parties to the communication which is being tapped or overheard.'
(Italics added.) [Citations.]" (Fn. omitted.)
Of course, consent to the recording of the conversation may be implied. In O'Laskey v.
Sortino (1990) 224 Cal. App. 3d 241, the court concluded that a telephone conversation could be recorded by a
caller who identified himself as the producer of a television quiz show and the person called believed his
answers to the questions asked would be broadcast to those listening to the show. The court observed that the
defendant "[w]ith visions of dollars dancing in his head . . . eagerly answered questions . . . . [Defendant] had
every reason to hope that his statements would be broadcast into every home with cable television." (Id., at p.
249; see also Detersea v. American Broadcasting Companies, Inc. (9th Cir. 1997) 120 F.3d 460, 464-465.)
No consent may be implied here on behalf of those making the telephone calls to hotels and
motels. On the contrary, persons calling hotels and motels may be disclosing personal information as to when
they will be staying at the hotel or motel (perhaps indicating when their homes will be vacant), the names of
others traveling with them, home telephone numbers (possibly not listed in a telephone directory), and credit
card information. The callers would have an objective expectation of privacy and confidentiality, granting no
implied consent to a recording of the conversation.
As for exemptions from the statutory prohibitions, none may be found applicable to hotel or
motel operators. (See § 633.) However, we note that an innkeeper (or any other person) may record a specific
telephone call during which a bomb threat is made. Section 633.5 explicitly permits the recordation of calls
relating to the commission of certain crimes:
"Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits one party to a
confidential communication from recording the communication for the purpose of obtaining
evidence reasonably believed to relate to the commission by another party to the communication
of the crime of extortion, kidnapping, bribery, [or] any felony involving violence against the
person. . . ."
In People v. Suite (1980) 101 Cal. App. 3d 680, 689, the court rejected any claim of confidentiality in
connection with recording a bomb threat, noting: "A bomb threat unquestionably involves the potential for
such violence." The person making the recording, however, must reasonably believe that the particular call
relates to the commission of a crime in order to come within the statutory exemption.
We thus conclude that a California innkeeper may not electronically record all incoming
telephone conversations so that a voiceprint may be obtained in the event a bomb threat is made. However,
an individual telephone conversation that contains a bomb threat may be recorded.
*****
Footnote No. 1
All references hereafter will be to the Penal Code unless otherwise designated. Return to text
Footnote No. 2
The court rejected the argument that an extension telephone could come under the exception for equipment "furnished and
used pursuant to the tariffs of a public utility." (§ 631, subd. (b)(2).) The court stated:
". . . Defendant's view that section 631, subdivision (b), allows third persons to eavesdrop on
conversations via extensions would be `a clear contradiction of the intent of section 631(a).' [Citation.]
Moreover, the tariff exception was obviously designed to allow the use of various types of recording and
monitoring equipment -- including speaker phones and telephone answering machines -- because compliance
with the tariffs in such cases will normally preclude eavesdropping: the tariffs require the use of warning
devices on recorders and generally stipulate that other types of equipment not be used in a manner allowing
4 of 5
devices on recorders, and generally stipulate that other types of equipment not be used in a manner allowing
unauthorized persons to overhear conversations. [Citation.]" (Id., at p. 363.)
5 of 5 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128096/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 10, 2010
Mr. Rod Bordelon Opinion No. GA-0828
Commissioner of Workers' Compensation
Texas Department of Insurance Re: Whether a workers' compensation carrier
7551 Metro Center Drive, Suite 100 may pay for a prescription drug at a rate lower
Austin, Texas 78744-1609 than the fee rate allowed under the guidelines of
the Division of Workers' Compensation of the
Department of Insurance (RQ-0890-GA)
Dear Commissioner Bordelon:
You ask two questions about the fee rates that workers' compensation insurance carriers must
pay to reimburse health care providers for prescription drugs and other remedies delivered to injured
workers under Texas workers' compensation laws.' First, you ask whether insurers may contract
with providers after January 1, 2011, to pay for prescriptions at rates lower than the rates that might
be allowed under the fee guidelines established by the Texas Department of Insurance, Division of
Workers' Compensation (the "Division"). Request Letter at I. If the answer to that question is
"yes," you want to know whether insurers may contract with informal or voluntary networks to
obtain such contracts. Id.
I. Whether Insurers May Pay Rates Lower than the Guidelines Allow
In presenting your first question, you discuss whether sections 408.027 ,408.028, and413.0 11
of the Labor Code prohibit insurers from contracting for a reimbursement rate that is lower than the
rates that the guidelines allow. Id. at 1-3. We begin our answer by noting that none of those statutes
refers to a minimum fee rate at which insurers may reimburse providers for prescriptions. See
generally TEX. LAB. CODE ANN. §§ 408.027 (West Supp. 2010), 408.028 (West 2006), 413.011
(West Supp. 2010). This suggests that the statutes you discuss do not establish a minimum rate. See
State v. Shumake, 199 S.W.3d 279,284 (Tex. 2006) (holding that courts determine the Legislature's
intent from the plain meaning of the words it chose); see also Cameron v. Terrel & Garrett, Inc., 618
S.W.2d 535, 540 (Tex. 1981) (holding that courts must presume that every word excluded from a
statute was excluded for a purpose). The lack of a reference to a minimum rate contrasts with the
express grant of permission in section 413.011 to insurers to contract "for fees that exceed the fees
adopted by the division under this section." TEX. LAB. CODE ANN. § 413.011(d-4) (West Supp.
lRequest Letter at 1 (available at http://www.texasattorneygeneral.gov).
Mr. Rod Bordelon - Page 2 (GA-0828)
20 I 0) (effective January I, 20 II). This is further indication that the statutes you discuss do not
establish a minimum rate. See Mid-Century Ins. Co. o/Tex. v. Kidd, 997 S.W.2d 265, 273-74 (Tex.
1999) (explaining that a law's express inclusion of a thing generally excludes a thing not expressly
included). We have not found any statute that mentions a minimum rate for prescriptions under the
Texas workers' compensation system, nor did any of the many briefs we received in this matter
purport to identify such a law. Because we are unaware of a statute that identifies a minimum
allowable rate, we must interpret the guidelines in order to determine whether there is a minimum
allowable rate.
The guidelines refer to a maximum allowable rate, but they do not refer to a minimum
allowable rate. 28 TEx. ADMIN. CODE § 134.503(a) (2010) (Tex. Dep't ofIns., Reimbursement
Methodology).2 This suggests that the guidelines do not provide a minimum allowable rate. See
Kidd, 997 S. W .2d at 273-74 (noting thatthe express inclusion of something excludes something not
expressly included); see also Rodriguez v. Servo Lloyd's Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999)
(providing that courts interpret administrative rules as they interpret statutes). Therefore, we
conclude that there is not a minimum allowable rate under the guidelines.
II. Whether Insnrers May Contract for Discounted Rates
You also ask "whether insurance carriers may contract with informal or voluntary networks"
to obtain a' contractual agreement with health care providers to pay for prescriptions at rates lower
than the rates allowed under the guidelines after January 1,2011. Request Letter at 1. Because there
could not be a rate lower than the rates the guidelines allow, we will discuss the more basic question
of whether insurance carriers may enter into contracts with informal or voluntary networks to obtain
contracts with health care providers to pay for prescriptions at negotiated rates. Under Insurance
Code chapter 1305, every informal or voluntary network must be certified as a workers'
compensation health care network ("WCHCN") by January I, 2011. TEX. LAB. CODE ANN. §
413.0115(b) (West Supp. 2010). Chapter 1305 provides that "prescription medication or services,
as defined by section 401.0 II (19)(E), Labor Code, may not be delivered through" a WCHCN. TEx.
INS. CODE ANN. § 1305.101(c) (West 2009). Section 40 1.0 11 (19)(E) ofthe Labor Code provides
that a "prescription drug, medicine, or other remedy" is a form of "[hJealth care," the definition of
which includes "all reasonable and necessary medical aid, medical examinations, medical treatments,
medical diagnoses, medical evaluation, and medical services." TEx. LAB. CODE ANN. §
413.011(19)(E) (West Supp. 2010). Thus, "prescription medication or services" under chapter
1305.101 are medications or services that provide medical aid to injured workers.
Neither the Labor Code nor Insurance Code defines the adjective "medical," but both codes
use it to define other terms in a way that indicates it describes a physical treatment or condition. See
id. § 401.011(31) (defming the term "medical benefit" as payment for health care intended to treat
an injury or disease); TEx.lNs. CODE ANN. § 1305.004(13) (West Supp. 2010) (defining the term
"medical emergency" as the sudden onset of a condition manifested by severe pain or serious bodily
2See E-mail from Dirk Johnson, the Division's General Counsel, to Jason Boatright, Assistant Attorney General
(Sept. 16,2010) (indicating that the guidelines are section 134.503) (on file with the Opinion Committee).
Mr. Rod Bordelon - Page 3 (GA-0828)
dysfunction). Because entering into a contract would not physically treat an injured worker, entering
into a contract could not be a prescription medication or service. See TEx. INs. CODE ANN. §
1305.101(c) (West 2009) (prohibiting a WCHCN from providing a prescription medication or
service). Therefore, although a WCHCN must not provide prescription medication or services, an
insurance carrier may enter into a contract with a WCHCN to obtain a contract with a health care
provider to pay for prescriptions at a negotiated rate after January I, 2011. 3
3We express no opinion on whether any particular contract between a WCHCN and an insurer would be legally
pennissible. Tex. Att'y Gen. Op. No. GA-0302 (2005) (stating that this office does not review or construe contracts).
Mr. Rod Bordelon - Page 4 (GA-0828)
,
SUMMARY
Sections 408.027, 408.028, and 413.011 of the Texas Labor
Code do not establish a minimum allowable rate at which workers'
compensation insurance carriers may pay for a prescription drug,
medicine, or other remedy. A workers' compensation insurance
carrier may contract with a workers' compensation health care
network to obtain a contract with a health care provider to pay for a
prescription drug, medicine, or other remedy at negotiated rates that
are permitted by law.
DANIEL T. HODGE
First Assistant Attorney General
DAVID 1,. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Jason Boatright
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128099/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 1, 2010
The Honorable Chuck Hopson Opinion No. GA-0826
Chair, Committee on General Investigating
and Ethics Re: Whether a member of the city council of
Texas House of Representatives Texarkana, Texas, may simultaneously serve as a
Post Office Box 2910 paid municipal fire fighter in Texarkana, Arkansas
Austin, Texas 78768-2910 (RQ-0892-GA)
Dear Representative Hopson:
You ask whether a member of the city council of Texarkana, Texas, may simultaneously
serve as a paid municipal fire fighter in Texarkana, Arkansas.' You inform us that Texarkana,
Arkansas has several ordinances which, in general, are intended to achieve base pay parity between
Texarkana, Arkansas, and Texarkana, Texas fire fighters. Request Letter at 1-2. A concern has been
expressed that, because of these ordinances, a Texarkana, Texas city council member's vote on the
salaries of its fire fighters might affect the salaries of Texarkana, Arkansas fire fighters. [d. at 2.
You ask specifically whether a person may hold both positions in light of the statutory
conflict of interest provisions in chapter 171 of the Local Government Code and the self-employment
aspect of the Texas common-law incompatibility doctrine. [d. at 1-2. Determining whether these
legal principles apply to a person holding positions with municipalities in different states raises
issues of first impression which, in part, may depend on the particular facts concerning the positions.
However, while you have not elaborated about the position of the Texarkana, Arkansas fire fighter,
we will address applicable legal principles in general terms.
You first ask that we address the applicability of the conflict of interest provisions in chapter
171 of the Local Government Code, but only if we conclude that Texarkana, Arkansas, is a "business
entity" under that chapter. Request Letter at 2. The chapter concerns a local public official's
conflicts of interest in various circumstances, particularly when the official "has a substantial interest
in a business entity." TEX. Loc. GOV'T CODE ANN. § 171.004(a) (West 2008). This office has
determined that a city is not a "business entity" under the chapter because it is a public entity, not
a private entity, and a city's purpose is not to produce financial benefits for private persons. See Tex.
Att'y Gen. Op. No. DM-267 (1993) at 2 (citing section 171.001(2) of the Local Government Code)
ISee Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
Representative Chuck Hopson - Page 2 (GA-0826)
(defining "business entity" for purpose of the chapter); cf Tex. All'y Gen. Op. No. GA-0031 (2003)
at 2 (determining for similar reasons that a school district is not a "business entity" under chapter
171). While Texas Attorney General Opinion DM-267 specifically concerned a Texas city, you have
not provided any information that would indicate that the status of an Arkansas city would be
different. Cf Jones v. Am. Home Life Ins. Co., 738 S.W.2d 387, 389 (Ark. 1987) (stating that
Arkansas "[m ]unicipalities are creatures of the legislature and as such have only the power bestowed
upon them by statute or the Arkansas Constitution"). Because it does not appear that an Arkansas
city is a "business entity" under chapter 171 of the Local Government Code, we do not consider the
chapter further.
Next, we consider the common-law doctrine of incompatibility, which has three
aspects-self-appointment, self-employment, and conflicting loyalties incompatibility. See Tex.
All'y Gen. Op. No. GA-0786 (2010) at 1. You ask only about self-employment incompatibility. The
self-employment aspect of the doctrine prohibits a person from holding both an office and an
employment that the office supervises. Tex. All'y Gen. Op. No. GA-0738 (2009) at 2. As we
recently observed, "[t]he fundamental consideration under the self-employment aspect is the
supervision of the subordinate employment by the office." Id.; see also Tex. All'y Gen. Op. No.
GA-0536 (2007) at 4 (stating that "the key aspect of self-employment incompatibility is
supervision"); Tex. All'y Gen. LO-97-034, at 1 (self-employment incompatibility precludes a city
commissioner from serving in the same city's fire department because the commissioner "is in the
direct chain of supervision over a member of the fire department"). While you inform us about the
potential effects of Arkansas municipal pay-parity ordinances, how Texarkana, Arkansas
compensates its employees is a matter for that city to decide. You do not suggest that the Texas city
council supervises employees of the Arkansas municipal fire department. As a general principle, the
self-employment aspect of the Texas common-law doctrine of incompatibility does not apply to
preclude a person from serving simultaneously in two positions when neither position directly or
ultimately supervises the other. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 2 (self-
employment incompatibility inapplicable to positions of special utility district board member and
college trustee), GA-0766 (2010) at 1 (self-employment incompatibility inapplicable to positions of
school district trustee and city manager), GA-0688 (2009) at 1 (self-employment incompatibility
inapplicable to positions of independent school district police chief and city council member).
Representative Chuck Hopson - Page 3 (GA-0826)
SUMMARY
Generally, a municipality is not a "business entity" for
purposes of the conflict of interest provisions of chapter 171 of the
Texas Local Government Code. The self-employment aspect of the
Texas common-law incompatibility doctrine does not apply to
preclude a person from serving simultaneously in two positions when
neither position supervises the other.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
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/4143177/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable a. Siiintion~
county Auds.tor
You* request tar 0
aaremly oonaidersd by this
your raqwet @a iollcxzar
*A 00unty orri
' ealary syateiu,iale
on his
oounty ofiicers have been oompan-
ee January 1, 1936, when the of-
oi AZtiols 39128, Vernonva Annotated
, reada as followd,r
11 oounties or thie State ooatain-
ing e population of leas than one hundred and
ainaty thousa'iid
(190,000) inhabitanta acaosd-
ing to the lcet 2reoediq Pedorel Ceneue where- -.
in the oounty or praolnat officers are oompsn-
sated on a salary basis under the provialons or
thlr hot, there shall be oretiteda Pnd to be
Honorable C. SInmona, page 2
knOm”t~ the *orriorr8* snhrg Ipund0r
Oouuty, Texas.* jiuahfund shall be kept aep-
aratm and apart froa ~11 other oounty tinda~,
and shall be held and diebureed for the pur-
~088 or piying the e~Iarie8 0r 0rri09r8 an4
the salaries or deputleta,araletanta and olerks
or orrtoers who ass drawing a salary tram said
rti under the ~rovi~~lonaor thl8 kot. and to
pay the authorl%ed ex~enee~ 0r~udp 0irl0ed
SuOh fund shall be deposited j.nthe Oounty &.-
pository and &all be yroteoted to the aaam ez-
tent aa other Oountp fu~&r.~ (Undersooring ourr)
It will be noted that the authorized ex n e
otfioe in salary oouutlee are ts be paid from th&%fr~
salary rund.
Section 5 or Art1010 3912e, Vernonts Annotated
Texas Civil Statutes, reada as tollowar
mission was due to negleot on the part or the or-
ri0er oharged with the reeponsiblllty 0r colleotiag
mane, the amount of such fee or oozmniaoionshall be
deduoted fromtha salary 0r suoh 0rri00r. Berore
any suoh deduotlon, ie made, the Co@.ieaioners*
Court shall furnish euoh ofrloer with an itemized
atatenent ot the unoolleoted tees with which hla
acoouut la to,be oharged, and shall notify such
orrloer af the time and place for a hearing on
mime, to determine whether suoh Oifioer was guilty
or negligence, which time for hearing shall be at
least ten days eubeequent to the date 02 notloe.
Unless en orrlcer is ohargad by law with the m-
eponslbllltp or oolleotlng fees, the Conmiesfoners
Court,shall not in any event make any deduotions
from the authorized salary of auoh officer."
(Underaooring ours)
EIonorableC. Simmons, page 3
Seotion (b) of Article 3899, Vernon's Annotated
Texas Civil Statutes, reade a8 rollons;
"(b) Each offfoer named in thir tit, where
he reoeivee a salary a8 oompecsatlonfor hia eer-
vlae8. shall be empowered and permf.ttedto pur-
ohaee and bare oharged to hi8 oounty all reasonable
expenses neoesaary la the proper and Legal aonduet
or hi8 0rri08, premiuma on orrlcials~ bonds, pre-
mium on fire, burglary, thert, robbery lneuranee
proteoting pub110 rum38 and in01udi1~ the co& Or
r Treasurer, only RB
.... ....sa..+
Ye resldenoe may, upon the wrltten and-sworn
application of the Shariif stating the naeaaeity there-
for purchase equipment tar a bureau of crlmlnal ldentl-
rloation, such ae oamera8, ilnger print ,OaxUe, inks,
ohemioalr, miorosoopea, radio end laboratory equipment,
filing oarda, filing oablnete, taer'gae and other equlp-
ment in keeping with the eyeten In u8e bF the.Department
or Publio safety of this State, or the Unit.6 State8 Pe-
partment or Justlae and/or Bureau Qf Criminal Identifloe-
Mon.
*&oh purohaeer shall bs made by eaoh officer,
when allowed. only by raclulsitl
gni&;;n..r w;v;u;~
by the County Auditor, lf any. t Y
missioners' Court. Xaoh officer ehall, at the olose
of eaoh month of filetenure of office. make an itemized
and sworn report of all approved exxxnses Inourred by
him and oherged to hi6 oounty, accomDanying such renort
with involoee oovarlog ouch purchases and raquisitiona
Issued by him in support of shah report. If euoh SX-
Honorable C. Si-mmon~,page 4
pox&es be inourred in conneotlon wlth any par-
thxl.larWAae, swh report #ha13 name euoh case.
Such report, lnroioea and requiettlona ‘shallbe
oubjeot to the audit oi the Oounty Auditor, ff
nny, otherwioo by the Oozamkeaionerr*Court, and
ifsIt eppearslthat my item ww not lnourrlrdby
suoh offleer, or,that suoh itea wae not a neaea-
sary or legal 6xpe~e of ewh'oiiiaa, or purahaa- "
ed upon proper requialtlon, euoh itam shall be
by aaid County Auditor or oourt rejeoted, in
whiob aaae the payment of euah item may be ad-
judioated in any court ot oompetent jurisdiotion.
All such approved &alms and aooounts shall be paid
rroa the orri0Ora* Salory Pund unlOsaOthWWise
provided herein.
+fhe Commisaionsrs' Court or ths amnty af the
Sheriff’s residence may, upon the written and .morn
applioation of suah offioer, atatlng the neeesalty
theraZor, allow one or more automobiloa to be used by
the 3herirf in the dieoharge of official bueinees,
whlah, if purohased by the county shall be bought
in the manner preaorlbed by law for the purchase ot
supplies and paid ior out of the General l%nd of the
oounty an& they shall be reported and paid in the acme
rtannera6 herein provided for other expeneee.
Where the automobile or automobllee are owned
by the Sheriff or hie Deputies, they shall be allowed
four (40) oonte ror eaoh rail0traveled in the disoharge
of oftfolal busineaa, which num shall aover all expenses
or the ma1ntenanoe, depreciation and operation of euoh
automobile. 8uoh mileage shall be reported and pafd
ia the @ame manner preeorfbed for other allowable ex-
pensea under the proviafone of this eection. No
automobile ehall be allowed for any Deputy Sheriff ex-
oept thoas regularly employod in outside work. It shall
be the duty of the County Auditor, ii’any, otherwise the
Oom&seionere* Court, to cheek the speedometer reading
or eaoh or s&id automobilee, Owned by the OOUntY once
each month and to keep a pub110 reoord thereofi n0
automobile owned by the oounty shall be used for any
private purpos6. As amended Aote 1933, 43rd Leg- P*
734, ah. 220, seotion 41 Aots 1935, 44th Leg., P= 718,
oh. 311, a8otlOn 1; zts 1935, 44th Leg., 2nd C. S., p*
1762, ch. 465, seotion 11; -iots1937, 45th Leg., PO
1340, oh. 498, section 1.” (‘Jnderscorfw3 ours)
Honorable a. Simmons, page 5
Articlee 3896, 3897 and 3898, Vernon’s Annotated
Civil Statute*, reab a8 roliour~t
"Art. 3896. To keep aooountm
“Each dlstriot, county and preoinot orrioer
shall keep a correet atsteaept of all fees earned
by him and all suma coming into hia hand6 as de-
posits for eoete, together with all trust funds
plaoed in the reglatry or the court, tees or office
and coiumiaaionrin a book or in book6 to be provided
him for that purpoae in rhioh the ofricer, at the
time when such degoalta are made or euoh fees and
oodsoione are earned and when any or all of such
f’undsshall taome into hiiahands, shall enter the
same1 and It shall he the duty of the oounty audi-
tor in oounties having a oounty euditor to annually
examine the booka and accounts of ewh otfioers and
to report his flndinga to the next suooeeding grand
jury or distriat court. In oountleo having no oounty
auditor, ft shall be the duty of the Commissioners’
Court to make the examination or said books and ae-
couuts or have the earnsmade and to make report to
the grand jury as herelaabove provided.*
‘Art. 3897. Sworn otatement
*Each dilrtrict,oounty and preolnct officer,
at the close of each fiecal year (December 3lat) aball
make to the dietrict oourt of the county in whioh he
resides a sworn etiateweat in trlplioate ton forma de-
eigned and approved by the State rudltor) a copy of
which statement shell be rorwarded to the Stnte Xudi-
tor by the olerk of the dietriot oourt of eaid county
within thirty (30) day8 alter the same har been filed
in his orrloe, and one copy to be riled with the county
auditor, it any; otberwiae said oopy shall be filed with
the OoauaiaeionersVCourt. Said report shall show the
amount of all rees, commlaelone and oompeneatione what-
ever earned by eaid orficer during the fleoal year; and
eeoondly, ehall show the amOuntof fees, Oor;lmisSiona
and oompeneatlone collected by him during the fiscal
iionorableC. SimmoM, page 6
peari thirdly, raid report shall contain an itemized
state::aantor all fees, oommiaoions and oonpsnsations
earned durl~ the fiscal year whloh were not oolleoted,
Logethex with the name or the party owing said tees,
tolm~ltr~i~n~ana ocmpefk3ationr. 6aid report &all be
riled not’ later than February let rolloting the cloeo
0r the ri5083~ year and for eaoh dey arter said date
that eela report resmins not riled, said orrioer shall
be liabla to e pebalty of T@enty Blvs ($25.00) Dollars,
whioh may be recovered by the oountp ln a cult brought
for such purpc8ts, and in addition said officer shall
be subjeot to roaoval rr0m ottice.*
“Art. 3898. Fiscal year
*The rlacnl pear, within the meanlrigor this S;ot,
shall begin on January let or oaah year; end eaoh dia-
tritt, county and preolnot offioer shall rile his re-
port and make the rinal settlecent required in this
BO t not lat,er than ‘February 1st of eaah yeer; p-oviiitd.
however. that uffioers raceivina an annual salary as
gowansatlon for their 6ervicss &all, by the al&se of
teoh month, pay Into the Cffloers’ Salary Fund or funds.
all fees. oommissions snd compensation collected by him
during said month. ‘&‘henevrr mch of~loer strvs8 ior a
fraot?::nalpart of the tlscd yenr, he shall nevertheless
rile his report and mikefinal settlembnt for suoh part
of the year aa he serves and shall be entitled to such
pfoportSo%ate part of his compensation as the time for
his service bears to the entire year.*( :Jn;ln?erscxlng
ours t
It will be noted that Article ?898, (luprct, requires
that officers operating under the Officera* Salary Law must pay
into the officers1 saIery fund all fees, oonmissions and oompensa-
tlon oolleoted by tham duriw said month.
The recent case of Ploreon et al, v. Galveston County,
131 S.,?I. (26) 27,deals with se&ion {a) of Article 3899, Vernon’s
Annotated Civil Satutus, end holds that a justioe of the peace
honorable C. Slmmne, pegs 7
(operating un9er the fes system) was not entitled to re-
oover oertain items o? expense oleimsd for poetags, traveling
expenses end meaaenger servl,oe,during oertein years in of-
fice; where the justice 414 not render monthly statements
of euoh expenses es require4 by statute, but merely tile4
annual reports estimating the axpeneea In lump sum amounts.
While this oese lnrolved section (a) of Artlols 3899, Vernon’s
Annotate4 Civil Statutes, relative to fee offfoers, we wish
to point out the following highly signlrloant language use4
by the Court in said opinion:
“The manlrsat purpose oi this statute was
to provide a means of aeoertaining the oorreotnees
of expense items eeoh month as they are incurred.
The aotual expense paid or inourred oonatitute the
neesure of the ofriolel’s right to recoupment. The
monthly itemization ia for the protection of the
oounty by afiordlng a %ae~nsoS ascertaining the f-at
end amount of much olaimed item of expense end whe- /
ther it was properly ohargeable (18 suoh. 1t is
manireat lrom the annual report8 end confirmed by
the evidenos that these expenses wer4 nerelg estima- J
$04 and a lump sum given each year. The statute
~%oufd be of no value if its salutary provisions
could De evaded in this manner. .:I8hold the item
properly disallowed by the ooinaJ8aionerst oourt,
an4 ,thetrial court18 Judgment correct in denying
x’eao~erythessfor.”
It is manliest that in selary counties the rule and
reason Sor filing monthly expense acoounts is perhaps even more
strict than In fee oounties. It is oontemplated by the statu-1”
tea that the neoeesitp for such eXp8nditUPMshall be in so
rar es possible pre-determined by the oom.laslonerel oourt for
the ensuing month before,the expenditures are made; suoh ex-
penditures and purchases, shell be n?adeby esch ofricer, where
allowed, .only by requisition in the manner PPOvided by the
.
Honorable 0. Simmonr, page 8
.. ,.
county auditor, if any, otherwise by tte oon;misrionerrrt
court. The offloer la require4 at the olole of eaoh month
of his tonurw of officre,to m&a an ltetiac4 nnd (RIOJXI re-
port of all 0sproreQ exmnse8 inourrsd by him an4 ohargeb to
his oounty, acoompany~ng suoh rspost with intaioea aovsring
suah puxohaaee and rrquiultions is8ue4 in rupport ot 8uoh
report. All approve4 olalmm an4 aooounts are paid Srod tb
orrloscs* aalery tund. All feem, oompttnsation an4 oommis-
eiona must be depoaitea by the offioer in the Olrloers’ Sal-
ary Bun4 at the olore of each month. Tha orriasr has no
authority to expend fees, oompensationa am4 oommiauloar
oolleoted by him for expense8 of oifioe, aa suoh aollsotlona
must be plaoed IA the Oltioera' Bolarg iTun4. Any and all ex-
penses of olfict~in Salary,oountiea must be made in oompli-
anoe with Artdole 3899 (bj, 6uprs.
It is tha opinionscf this department that your
question should be answered in the aegetioe, and it is so
anewsreb.
Youre very truly
Wm. J. Fanning
Aeslrtent | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128551/ | GREG A B B O T T
May 3,2007
The Honorable Mike Stafford Opinion No. GA-0544
Harris County Attorney
1019 Congress, 15th Floor Re: Whether a county medical examiner is authorized
Houston, Texas 77002 to recoup costs incurred when the medical examiner
permits a tissue procurement organization to remove
tissue using the medical examiner's facility and
resources under section 693.002(b), Health and Safety
Code (RQ-0545-GA)
Dear Mr. Stafford:
Section 693.002(b) of the Health and Safety Code authorizes a county medical examiner to
permit a qualified tissue procurement organization to remove tissue from a decedent in certain
circumstances. See TEX.HEALTH& SAFETYCODEANN.§ 693.002(b) (Vernon Supp. 2006). You
ask whether a county medical examiner is authorized to recoup costs incurred when the medical
examiner permits a tissue procurement organization to remove tissue using the medical examiner's
facility and resources under section 693.002(b).'
Section 693.002 pertains to the removal of organs and tissue from decedents who died under
circumstances requiring an inquest. See TEX.HEALTH& SAFETYCODEANN.8 693.002 (Vernon
Supp. 2006); see also TEX.CODECRIM.PROC.ANN.art. 49.25, tj 6(a) (Vernon 2006) (setting out
circumstances in which an inquest is required). Section 693.002 provides:
(a)(l) On a request from a qualified organ procurement
organization, . . . the medical examiner . . . may permit the removal
of organs from a decedent who died under circumstances requiring an
inquest . . . if consent is obtained pursuant to Section 693.003.
(6) If, in performing the duties required by this subsection,
the medical examiner . . . is required to be present at the hospital to
'See Letter and Memorandum Brief from Marva Gay, Assistant Harris County Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Oct. 20, 2006) (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter and Memorandum Brief respectively].
The Honorable Mike Stafford - Page 2 (GA-0544)
examine the decedent prior to removal of the organs or during the
procedure to remove the organs, the qualified organ procurement
organization shall on request reimburse the county or the entity
designated by the county for the actual costs incurred in performing
such duties, not to exceed $1,000. . . .
(b) On a request from a qualified tissue procurement
organization, as defined in Section 692.002, the medical examiner
may permit the removal of tissue believed to be clinically usable for
transplants or other therapy or treatment from a decedent who died
under circumstances requiring an inquest if consent is obtained
pursuant to Section 693.003 or, if consent is not required by that
section, no objection by a person listed in Section 693.004 is known
by the medical examiner. If the medical examiner denies removal of
the tissue, the medical examiner shall explain in writing the reasons
for the denial. . . . to:
(1) the qualified tissue procurement organization; and
(2) the person . . . who consented to the removal.
TEX. HEALTH& SAFETYCODE ANN. 5 693.002(a)-(b) (Vernon Supp. 2006); see also id.
$5 693.003-.004 (Vernon 2003) (setting out circumstances in which consent is required and listing
the persons who may consent or object to organ or tissue removal). A qualified organ procurement
or tissue procurement organization is an organization that
procures and distributes organs or tissues for transplantation,
research, or other medical purposes and that:
(A) is affiliated with a university or hospital or registered to
operate as a nonprofit organization in this state for the primary
purpose of organ or tissue procurement; and
(B) ifthe organization is an organ procurement organization,
is certified to act as an organ procurement organization by the
appropriate federal agency.
Id. 5 692.002(9).
You distinguish between organ procurement, which is governed by section 693.002(a), and
tissue procurement, which is governed by section 693.002(b). See Memorandum Brief, supra note
1, at 1. You equate the term "organ" with the phrase "visceral organ," which section 693.OO 1 defines
The Honorable Mike Stafford - Page 3 (GA-0544)
to mean "the heart, kidney, liver, or other organ or tissue that requires a patient-support system to
maintain the viability of the organ or tissue." TEX. HEALTH& SAFETYCODEANN. 5 693.001
(Vernon 2003); see Memorandum Brief, supra note 1, at 1. You inform us that "[olrgans are
typically removed at a hospital in a sterile environment while the patient is connected to a life
support system, not at" the medical examiner's facility. Memorandum Brief, supra note 1, at 1. By
contrast, you state, "the tissue that is recovered from decedents is usually skin, bone, dura mater,2
heart valves, veins and corneas,'' none of which requires a patient-support system to remain viable.
Id. (footnote added). You further state that tissue can be removed at the medical examiner's facility
"in an aseptic recovery field." Id.
Your question pertains solely to the removal of tissue under section 693.002(b). See Request
Letter, supra note 1, at 1. You suggest that the presence of qualified tissue procurement
organizations in the medical examiner's facility creates difficulty for the medical examiner:
[Tissue procurement organizations], including some located
outside Harris County, increasingly vie with each other to recover
tissue from decedents at the [medical examiner's] facility. The
[medical examiner's] staff is challenged to referee disputes over
which competing [tissue procurement organizations] may use the
[medical examiner's] facility and staff, when, and how. The [medical
examiner's] staff must monitor and control the [tissue procurement
organizations'] use of resources including medical records,
equipment, and decedent blood samples. The [medical examiner's]
pathologists spend additional time on many donor cases as they work
around the remnants of recovery surgery during the postmortem
examination and as they communicate with the [tissue procurement
organizations] regarding preliminary cause of death information. The
presence of [tissue procurement organizations] in the [medical
examiner's] facility places a burden on the ability of the [medical
examiner's] office to perform duties mandated by law.3
Memorandum Brief, supra note 1, at 1 (footnote added). You inquire about a medical examiner's
authority to obtain reimbursement from a tissue procurement organization. See Request Letter,
supra note 1, at 1.
2Dura muter is "the tough outermost membrane enveloping the brain and spinal cord." THENEWOXFORD
AMERICANDICTIONARY 530 (200 1).
3A brief submitted to this office suggests that, contrary to the Memorandum Briefs assertions, the medical
examiner in your county does not provide tissue procurement organizations with "facilities or use of medical personnel."
Letter from Rusty Hardin, Rusty Hardin & Assocs., to Honorable Greg Abbott, Attorney General of Texas, at 21 (Dec.
2 1,2006) (on file with the Opinion Committee). "Rather," the brief continues, "all the [medical examiner] may be asked
to do is to expedite its statutory duties to perform an inquest so that it can release . . . tissue while [it is] still viable for
donation." Id. Resolving fact issues is beyond the purview of the opinion process. See Tex. Att'y Gen. Op. No. GA-
0446 (2006) at 9, 18. We must assume for the purposes of this opinion, therefore, that the requesting governmental body
has set forth a correct and complete version of the facts. See Tex. Att'y Gen. Op. No. GA-0249 (2004) at 2.
The Honorable Mike Stafford - Page 4 (GA-0544)
A court strictly construes a statute imposing a fee-that is, a charge to cover costs and not
to raise revenue-and will not imply authority to impose a fee. See Moore v. Sheppard, 192 S.W.2d
559, 561 (Tex. 1946); McCalla v. City ofRockdale, 246 S.W. 654,655 (Tex. 1922); see also Tex.
Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454,461 (Tex. 1997) (distinguishing
between license fees, which primarily serve to cover the costs of regulation, from taxes, which serve
to increase the general revenues). As the Texas Supreme Court has stated, "[nlo officer is permitted
to collect fees or commissions unless the same are provided for and the amount thereof declared by
law." McCalla, 246 S.W. at 655.
Section 693.002(a)(6) authorizes a county to collect reimbursement, "not to exceed $1,000,"
from an organ procurement organization to be deposited in the county's general fund and applied
to "the additional costs incurred by the office of the medical examiner . . . in performing" duties
associated with attending an organ removal at a hospital. TEX.HEALTH& SAFETYCODEANN.
fj693.002(a)(6) (Vernon Supp. 2006). By contrast, section 693.002(b) does not authorize collecting
reimbursement from a tissue procurement organization, establish a maximum reimbursement, or
limit the uses to which reimbursement fees may be put. See id. § 693.002(b). Section 693.002 thus
does not authorize a medical examiner to recoup costs from a tissue procurement organization. CJ:
Tex. Att'y Gen. Op. No. GA-0389 (2005) at 11-12 (stating that section 693.002(a)(6) "[bly its plain
terms . . . does not provide for costs to be paid by a tissue procurement organization").
Additionally, a medical examiner has no independent statutory authority to collect
reimbursement from a tissue procurement organization. Article 49.25 of the Code of Criminal
Procedure authorizes certain counties to establish a medical examiner's office and provides medical
examiners with certain duties and authority. See TEX.CODECRIM.PROC.ANN.art. 49.25 (Vernon
2006). Nothing in article 49.25 authorizes a medical examiner to set or collect fees for duties
associated with tissue procurement. See id.
Nor may the county commissioners court require reimbursement on behalf of the medical
examiner. A county may not charge a fee unless specifically authorized to do so. See Nueces County
v. Currington, 162 S.W.2d 687,688 (Tex. 1942); McCalla, 246 S.W. at 655. No statute authorizes
a county to set a fee to be collected from a tissue procurement organization for the use of the medical
examiner's resources. See TEX.HEALTH & SAFETY CODEANN.$693.002 (Vernon Supp. 2006); cf
Tex. Att'y Gen. LO-94-066, at 2 (determining that a county commissioners court may not charge
funeral homes for transporting bodies to the county morgue); Tex. Att'y Gen. LO-92-020, at 2
(concluding that a county commissioners court has no authority to charge funeral homes a daily fee
for storing bodies at the medical examiner's office).
You suggest, however, that statutory authority for the medical examiner's collection of a fee
is not necessary because a medical examiner's power to permit a tissue procurement organization
to remove tissue is discretionary, not mandatory. See Memorandum Brief, supra note 1, at 1-3. As
you point out, section 693.002(b) states that amedical examiner "may permit the removal of tissue."
TEX.HEALTH& SAFETYCODEANN. 5 693.002(b) (Vernon Supp. 2006) (emphasis added); see
Memorandum Brief, supra note 1, at 2. In general, the term "may" denotes "discretionary authority."
TEX.GOV'TCODEANN.3 3 11.016(1) (Vernon 2005). Thus, as you assert, a medical examiner "is
The Honorable Mike Stafford - Page 5 (GA-0544)
under no obligation under the law to permit a [tissue procurement organization] to remove tissue."
Memorandum Brief, supra note 1, at 2. You cite Moore v. Sheppard, a 1946 Texas Supreme Court
case, and Attorney General Opinion GA-0364, issued in 2005, for the proposition that an officer may
collect a fee for performing duties the officer is not required by law to perform. See Memorandum
Brief, supra note 1, at 3; see also Moore, 192 S.W.2d at 560; Tex. Att'y Gen. Op. No. GA-0364
(2005) at 5-6.
But the principle articulated in Moore and Opinion GA-0364, allowing officers to charge fees
for performing unofficial activities, does not apply here. The court in Moore determined that
providing unofficial copies of court opinions is not among a clerk's official activities, and Opinion
GA-0364 concludes that delivering eviction notices is not an official activity of a constable. See
Moore, 192 S.W.2d at 560-61; Tex. Att'y Gen. Op. No. GA-0364 (2005) at 6. By contrast,
facilitating tissue removal is an official activity of a medical examiner. See TEX.HEALTH & SAFETY
CODEANN.6 693.002(b) (Vernon Supp. 2006). We know of no authority or policy supporting your
assertion that the word "may" in a statute, by itself, removes the activity that is subject to that statute
from the realm of official activities. Moreover, despite the use of the word "may" in section
693.002(b), the medical examiner is obligated by statute to determine whether to allow tissue
removal when requested to do so by a tissue procurement organization and to either allow the
removal or provide a notice of denial. See id. We therefore conclude that the medical examiner's
duties under section 693.002(b) are official activities for which any fee charged requires statutory
auth~rity.~
You also suggest that section 693.002(b), to the extent it requires a county "to provide a free
facility and services to a private corporation," i.e., a tissue procurement organization, contravenes
article 111, section 52(a) of the Texas Constitution. See Memorandum Brief, supra note 1, at 3-4;
see also TEX.CONST.art. 111, § 52(a) (prohibiting the grant of public funds to private entities).
Article 111, section 52(a) prohibits the Legislature from authorizing a county "to lend its credit or to
grant public money or thing of value in aid of, or to any individual, association or corporation
whatsoever." TEX.CONST.art. 111,s 52(a). The Texas Supreme Court has set forth a three-part test
to determine whether a statute's grant of public resources violates article 111, section 52(a):
Specifically, the Legislature must: (1) ensure that the statute'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.
Tex. Mun. League Intergovernmental Risk Pool v. Tex. Workers' Comp. Comm'n, 74 S.W.3d 377,
384 (Tex. 2002).
4Wenote that we are not here faced with facilities or resources offered to a tissue procurement organization that
may supplement, but are not necessary to, the tissue procurement procedure. See generally Memorandum Brief, supra
note 1 (articulating the issue).
The Honorable Mike Stafford - Page 6 (GA-0544)
In analyzing your claim that section 693.002(b) is unconstitutional to the extent a medical
examiner must provide free access to tissue procurement organizations, a court would begin by
presuming the statute's constitutionality. See Walker v. Gutierrez, 111 S.W.3d 56'66 (Tex. 2003).
If possible, a court would interpret the statute "in a manner to avoid constitutional infirmities." Gen.
Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001); see also Sullivan v.
Andrews County, 5 17 S.W.2d 41 0,413 (Tex. Civ. App.-El Paso 1974, writ ref d n.r.e.) (stating that
a court will "always lean in favor of the validity of a legislative act," and if there is reasonable doubt
about a statute's constitutionality, "the court will solve the doubt in favor of the statute" (quoting
Vincent v. State, 235 S.W. 1084, 1088 (Tex. Comm'n. App. 1921, judgm't adopted))). We
consequently begin by presuming that section 693.002(b) does not authorize a grant of public
resources in violation of article 111, section 52(a) of the Texas Constitution. Indeed, nothing in
section 693.002(b) expressly requires that county resources be used in the tissue removal procedure.
In our opinion, providing free access to tissue procurement organizations, even if a grant of
public resources occurs, does not violate article 111, section 52(a). We consider that providing tissue
that would otherwise not be freely available to tissue procurement organizations serves a
predominantly public purpose and provides the county a return benefit. See Hearings on Tex. S.B.
35 1 Before the Senate Comm. on Health & Human Servs., 74th Leg., R.S. (Mar. 1,1995) (testimony
of Senator Moncrief) (tape available from the Texas State Library and Archives Comrn'n) (noting
that eight percent of potential organ donors in Texas fall within medical examiners' jurisdiction,
who, between 1990 and 1993, denied the release of organs from 48 potential donors, thereby
affecting at least 168 Texans who died because they did not receive a timely transplant); House
Research Org., Bill Analysis, Tex. S.B. 351'74th Leg., R.S. (1995) at 3 (noting that the bill would
"facilitate the timely removal and transplantation of organs and tissue from decedents subject to a
medical examiner inquest"). Further, both the requirement that a tissue procurement organization
be "qualified" and the medical examiner's discretion to determine whether to permit or deny a
request by a tissue procurement organization to remove tissue in a particular circumstance provide
the requisite control ensuring that any use of public resources accomplishes a public purpose. See
TEX.HEALTH& SAFETYCODEANN. $6 692.002(9) (Vernon 2003), 693.002(b) (Vernon Supp.
2006).
For all of these reasons, we conclude that section 693.002(b) does not permit a county
medical examiner to recoup from a tissue procurement organization costs incurred when the medical
examiner permits the organization to use the medical examiner's facility and resources to remove
tissue.
The Honorable Mike Stafford - Page 7 (GA-0544)
S U M M A R Y
A county medical examiner is not authorized to obtain
reimbursement from a tissue procurement organization for costs
incurred when the medical examiner permits the organization to use
the medical examiner's facility and resources to remove tissue under
section 693.002(b), Health and Safety Code.
Very truly yours,
Ah- GREG BBOTT
~ t t o r n e w e n e r aof
l Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128087/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-511
of :
: December 5, 1997
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE NORMAN Y. HERRING, COUNTY COUNSEL, COUNTY OF
GLENN, has requested an opinion on the following questions:
1. May a director of an irrigation district contract with the district to obtain private
construction services performed by the district valued at $29,000 in exchange for terminating a preexisting
obligation of the district to repair a bridge located on the director's property, where such repair services are
valued at $47,000?
2. Alternatively, may the irrigation district pay the director $29,000 in consideration
for terminating its preexisting and ongoing bridge maintenance obligation?
CONCLUSIONS
1. A director of an irrigation district may not contract with the district to obtain
private construction services performed by the district valued at $29,000 in exchange for terminating a
preexisting obligation of the district to repair a bridge located on the director's property, even though such
repair services are valued at $47,000.
2. The irrigation district may not, in the alternative, pay the director $29,000 in
consideration for terminating its preexisting and ongoing bridge maintenance obligation.
ANALYSIS
Under the provisions of the Irrigation District Law (Wat. Code, §§ 20500-29978), an
irrigation district may, among other duties, "do any act necessary to furnish sufficient water in the district for
any beneficial use" (Wat. Code, § 22075). We are informed that an irrigation district situated in two counties
in Northern California has constructed bridges in connection with its irrigation and drainage facilities. The
bridges were built in the 1920's when the district constructed large canals throughout the area. In exchange
for the rights of way to construct the canals, the district agreed to build and maintain bridges over the canals,
giving each owner access to his or her own property. One of these bridges presently requires repair work that
1 of 6
g g p p y g p y q p
would cost the district $47,000 to perform. This particular bridge provides access only to lands currently
owned by one of the five directors of the district. This director intends to construct additional private roads
on his property estimated to cost $29,000. The district routinely contracts with its customers to provide
private construction services, such as road construction, on a "first come, first serve" basis, depending upon
the availability of personnel and equipment, at established hourly rates.
We are asked whether, under the described circumstances, the district may contract with the
director to construct the private road at a cost of $29,000 in exchange for terminating its obligation to
maintain the bridge on the director's property, currently requiring repair work costing $47,000. Alternatively,
may the district pay the director $29,000 in exchange for terminating its bridge maintenance obligation? We
conclude that under state law the district is prohibited from so contracting due to the director's financial
interest in the proposed transactions.
As the contemplated arrangements concern the making of a contract by a public agency, the
provisions of Government Code section 1090 Footnote No. 1 require our analysis. (See 70 Ops.Cal.Atty.Gen.
42, 47 (1987).) Section 1090 states:
"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 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.
"As used in this article, `district' means any agency of the state formed pursuant to
general law or special act, for the local performance of governmental or proprietary functions
within limited boundaries."
The Supreme Court has declared that the purpose of section 1090's prohibition "is to remove or limit the
possibility of any personal influence, either directly or indirectly, which might bear on an official's decision,
as well as to void contracts which are actually obtained through fraud or dishonest conduct. . . ." (Stigall v.
City of Taft (1962) 58 Cal. 2d 565, 569.) The statutory goal is "not only to strike at actual impropriety, but
also to strike at the appearance of impropriety." (City of Imperial Beach v. Bailey (1980) 103 Cal. App. 3d
191, 197.) Section 1090's prohibition applies regardless of whether the contract is found to be fair and
equitable (Thomson v. Call (1985) 38 Cal. 3d 633, 646-649) or whether the official would abstain from all
participation in the decision-making process (Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68
Cal. App. 3d 201, 211-212).
However, exceptions to the prohibition have been made for certain "remote interests"
(§ 1091) and "non-interests" (§ 1091.5). (See Citizen Advocates, Inc. v. Board of Supervisors (1983) 146
Cal. App. 3d 171, 178-179; Fraser-Yamor Agency, Inc. v. Del Norte County, supra, 68 Cal.App.3d at
217-218; 67 Ops.Cal.Atty.Gen. 369, 375 (1984).) In addition, a "rule of necessity" has been applied in certain
circumstances to permit the making of a contract that would otherwise be proscribed. (See 73
Ops.Cal.Atty.Gen. 191, 195 (1990); 69 Ops.Cal.Atty.Gen. 102, 107-112 (1986); 65 Ops.Cal.Atty.Gen. 305,
308-311 (1982).)
Here, it is proposed that the irrigation district would enter into a contract with one of its
directors who would have a direct financial interest in the transaction. He would be one of the contracting
parties and would be receiving either services or money from the district in exchange for taking over the
district's obligation to repair and maintain the bridge in question. As stated in Thomson v. Call, supra, 38
Cal.3d at 645: "The proscribed interest certainly includes any direct interest, such as that involved when an
officer enters directly into a contract with the body of which he is a member." We need only determine,
therefore, whether either of the proposed transactions would qualify under one of the exceptions to section
2 of 6
1090's prohibition.
1. Providing Construction Services
The first question to be resolved is whether the district may furnish private construction
services in exchange for terminating its obligation to maintain the bridge located on the director's property.
We conclude that it may not.
Looking at the exceptions set forth in sections 1091 (remote interests) and 1091.5
(noninterests), we find that section 1091.5, subdivision (a)(3), alone appears to afford any possibility of
finding the proposed exchange transaction to be permissible. Section 1091.5 provides as follows:
"(a) An officer or employee shall not be deemed to be interested in a contract if his or
her interest is any of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) That of a recipient of public services generally provided by the public body or board of
which he or she is a member, on the same terms and conditions as if he or she were not a member of the
board.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
The apparent intent of this provision is to exempt a board member's receipt of public services that are given
under "the same terms and conditions" to the other customers of the public agency.
Here, it may be argued that the "public services" of the district not only include supplying
water, but also furnishing private construction services to its customers on a "first come, first serve" basis at
established hourly rates. Although the construction services are not performed pursuant to a statutory
mandate but only pursuant to a contract, they are offered to all of the district's customers without exception
when personnel and equipment are available. The "same terms and conditions" would be the established
hourly rates set by the district.
However, even assuming subdivision (a)(3) of section 1091.5 is applicable to the district's
hourly rates established for private construction services, the proposal in question involves the termination of
a preexisting obligation to maintain a bridge on the director's property. The maintenance termination element
of the transaction does not meet the "same terms and conditions" requirement of the statute. It would be a
unique exchange applicable only to the director's property. Simply put, the proposed exchange of private
construction services performed in exchange for terminating the district's maintenance obligation is not
available to the other customers of the district at all.
The transaction under consideration is dissimilar to what the Legislature contemplated under
section 1091.5, subdivision (a)(3)--the provision of services in accordance with previously adopted rate
schedules applicable to all customers. Hence, the proposed transaction involving the termination of the
district's bridge maintenance obligation does not escape the prohibition of section 1090 as a "noninterest"
under the terms of section 1091.5.
We also reject the suggestion that the rule of necessity is applicable. In 65
Ops.Cal.Atty.Gen., supra, at 310, we described this doctrine as follows:
"With respect to contractual conflicts of interest the `rule of necessity' may be said to
have two facets. The first, which is not involved herein, arises to permit a governmental agency
to acquire an essential supply or service despite a conflict of interest. The contracting officer, or
bli b d hi h h ld b th l f l f h ti l l
3 of 6
a public board upon which he serves, would be the sole source of supply of such essential supply
or service, and also would be the only official or board permitted by law to execute the contract.
Public policy would authorize the contract despite this conflict of interest. (See 59
Ops.Cal.Atty.Gen. 604, 619 n. 18, and opinions cited therein.) The second facet of the doctrine,
exemplified in Caminetti v. Pac. Mutual Ins. Co., [(1943) 22 Cal. 2d 344, 366-367], arises in
nonprocurement situations and permits a public officer to carry out the essential duties of his
office despite a conflict of interest where he is the only one who may legally act. It ensures that
essential governmental functions are performed even where a conflict of interest exists."
The application of this rule has been analyzed in various contexts. (See, e.g., Eldridge v. Sierra View Local
Hospital Dist. (1990) 224 Cal. App. 3d 311, 321; 67 Ops.Cal.Atty.Gen., supra, at 378; 59 Ops.Cal.Atty.Gen.
604, 619 (1976); 57 Ops.Cal.Atty.Gen. 458, 463-465 (1974).)
Here, the proposed trade of bridge maintenance services for road construction services
cannot be described as coming under either facet of the rule of necessity. Even if the district would in fact
save $18,000 by providing the construction services in exchange for terminating its maintenance obligation,
there is no essential supply, service, or governmental function involved. The expected savings from the
transaction do not provide a basis for application of the rule.
Finally, we note that the proposed savings of $18,000, or even more, raises questions of
valuation that the enactment of section 1090 was intended to avoid. Who will provide the estimated cost
savings for the district the next time a director proposes a similar exchange? How will the customers of the
district be assured that a cost estimate is accurate and not based upon any favoritism toward a particular
director? In Thomas v. Call, supra, 38 Cal. 3d 633, these types of questions were addressed by the Supreme
Court with respect to the sale of property to a city by a city council member:
". . . In San Diego v. S. D. & L. A. R. R. Co., supra, 44 Cal. 106, we recognized the
conflict-of-interest statutes' origins in the general principle that `no man can faithfully serve two
masters whose interests are or may be in conflict': `The law, therefore, will not permit one who
acts in a fiduciary capacity to deal with himself in his individual capacity. . . . For even if the
honesty of the agency is unquestioned . . . yet the principal has in fact bargained for the exercise
of all the skill, ability and industry of the agent, and he is entitled to demand the exertion of all
this in his own favor.' (44 Cal. at p. 113.) We reiterated this rationale more recently in Stigall v.
City of Taft, supra, 58 Cal. 2d 565: `The instant statutes [§ 1090 et seq.] are concerned with any
interest, other than perhaps a remote or minimal interest, which would prevent the officials from
exercising absolute loyalty and undivided allegiance to the best interests of the city.' (58 Cal.2d
at p. 569. See, also, City of Imperial Beach v. Bailey (1980) 103 Cal. App. 3d 191, 196; City
Council v. McKinley (1978) 80 Cal. App. 3d 204, 212; People v. Darby (1952) 114 Cal. App. 2d
412, 426; Miller, supra, 28 Cal.App.2d at p. 366; Hobbs, Wall & Co., supra, 109 Cal.App. at p.
319.)
"In Stigall we relied in part on the reasoning of the United States Supreme Court on a
federal penal statute under which a contract was declared to be unenforceable because of a
conflict of interest: `"The statute is thus directed not only at dishonor, but also at conduct that
tempts dishonor. This broad proscription embodies a recognition of the fact that an impairment
of impartial judgment can occur in even the most well-meaning men when their personal
economic interests are affected by the business they transact on behalf of the Government. To
this extent, therefore, the statute is more concerned with what might have happened in a given
situation than with what actually happened. It attempts to prevent honest government agents
from succumbing to temptation by making it illegal for them to enter into relationships which are
fraught with temptation."' (Stigall, supra, 58 Cal.2d at p. 570, quoting United States v.
Mississippi Valley Generating Co. (1961) 364 U.S. 520 [5 L. Ed. 2d 268, 81 S. Ct. 294].) Implicit
i thi i i th ti th t th f h t t t i ` t l t t ik t t l
4 of 6
in this reasoning is the assumption that the purpose of such statutes is not only to strike at actual
impropriety, but also to strike at the appearance of impropriety.' (City of Imperial Beach, supra,
103 Cal.App.3d at p. 197 [construing § 1090].)
"It follows from the goals of eliminating temptation, avoiding the appearance of
impropriety, and assuring the city of the officer's undivided and uncompromised allegiance that
the violation of section 1090 cannot turn on the question of whether actual fraud or dishonesty
was involved. Nor is an actual loss to the city or public agency necessary for a section 1090
violation. In Stigall, for example, a city councilman had a financial interest in a plumbing
company which submitted the lowest bids for a municipal contract. Taxpayers sued to have the
contracts declared void. They did not allege `actual improprieties,' nor did they contend that the
contract was unfair, unjust, or not beneficial to the city. (58 Cal.2d at p. 568.) On these facts, we
nonetheless concluded that the contract violated section 1090, reasoning that the `object of these
enactments is to remove or limit the possibility of any personal influence, either directly or
indirectly which might bear on an official's decision, as well as to void contracts which are
actually obtained through fraud or dishonest conduct.' (Id. at p. 569. See, also, San Diego v. S. D.
& L. A. R. R. Co., supra, 44 Cal. at p. 13; City of Imperial Beach, supra, 103 Cal.App.3d at p.
197; Fraser-Yamor Agency, Inc., supra, 68 Cal.App.3d at p. 215; Schaeffer v. Berinstein (1956)
140 Cal. App. 2d 278, 290.) And in Shuffleton, supra, we observed that `it matters not how fair
upon the face of it the contract may be, the law will not suffer [the official] to occupy a position
so equivocal and so fraught with temptation.' (203 Cal. at p. 105.)
"In short, if the interest of a public officer is shown, the contract cannot be sustained
by showing that it is fair, just and equitable as to the public entity. Nor does the fact that the
forbidden contract would be more advantageous to the public entity than others might be have
any bearing upon the question of its validity. (Capron v. Hitchcock (1893) 98 Cal. 427.)" (Id., at
pp. 647-649; fns. omitted.)
Here, regardless of the possible benefit to the district, section 1090 prohibits the proposed transaction
because "the statute is more concerned with what might have happened in a given situation than with what
actually happened." (Id., at p. 648.)
In answer to the first question, therefore, we conclude that a director of an irrigation district
may not contract with the district to obtain private construction services valued at $29,000 in exchange for
terminating a preexisting obligation of the district to repair a bridge located on the director's property, even if
the bridge repair services will cost the district $47,000.
2. Providing A Cash Payment
We are additionally asked whether the district may enter into a contract with the director if,
instead of construction services, the district offers a cash payment of $29,000 in exchange for terminating its
preexisting and ongoing bridge maintenance obligation. We conclude that the district may not so contract.
Although this latter proposal would make for a less complicated transaction and place a
finite limit upon the expenditure of district resources, we do not view this modification as allowing the
noninterest exception of section 1091.5 to become applicable. Similarly, we do not view the receipt of cash,
as opposed to construction services, as having any effect on whether the rule of necessity may be invoked.
There is simply no essential supply or service being acquired by the district.
In short, regardless of the "bargain" given to the district in relieving it of its maintenance
responsibility, the circumstances of the proposed payment would be conducive to the appearance of
impropriety; the transaction cannot be justified on the basis that the district might benefit financially.
5 of 6
Accordingly, we conclude in answer to the second question that the district may not pay the
director $29,000 in consideration for terminating its preexisting and ongoing bridge maintenance obligation
even though the bridge in question currently requires repair work that will cost the district $47,000.
*****
Footnote No. 1
All section references hereafter are to the Government Code.
6 of 6 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128114/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 4,2010
The Honorable Florence Shapiro Opinion No. GA-0816
Chair, Committee on Education
Texas State Senate Re: Authority of the Dallas County Commissioners
Post Office Box 12068 Court to retain independent legal counsel ill
Austin, Texas 78711-2068 particular circumstances (RQ-0870-GA)
Ms. Virginia Porter
Dallas County Auditor
509 Main Street, Suite 407
Dallas, Texas 75202
Dear Senator Shapiro and Ms. Porter:
You both ask questions about the authority of the Dallas County Criminal District Attorney
to represent the County in civil matters and how that authority corresponds with the Dallas County
Commissioners Court's authority to retain independent legal counsel in particular circumstances.'
The two sets of questions together require us to analyze the following three subjects: (l) the division
between the Dallas County Commissioners' authority to retain counsel and the Dallas County
Criminal District Attorney's authority to represent Dallas County in civil matters and which county
official or officials have the authority to select special counsel to represent the County; (2) whether
conflict of interest or a statutory bar prohibits the Criminal District Attorney from performing his
function under that section; and (3) the lawfulness of contracts entered into by the Dallas County
Commissioners Court for employment of special counsel. 2 We will address these issues seriatim.
I. The Division of Authority Between the Dallas County Commissioners Court and the
Criminal District Attorney with Regard to Civil Matters
Section 44.157 of the Government Code outlines the duties specific to the Dallas County
Criminal District Attorney and confers broad authority over criminal matters and a duty to represent
the state in criminal matters in Dallas County, except where that duty is assigned elsewhere by
statute. TEX. GOV'T CODE ANN. § 44.1 57(a)-(b) (West 2004). Notably, that section does not confer
any authority to represent the County in civil matters. Id. In analyzing a similar statute specific to
1See Shapiro Request Letter at 1; Porter Request Letter at 1 (available at http://www.texasattorueygeneral.gov).
'We understand all of the questions to relate to Dallas County. We limit our answers accordingly.
The Honorable Florence Shapiro - Page 2 (GA-08l6)
Ms. Virginia Porter
the Galveston County Criminal District Attorney, the Texas Supreme Court provided the following
explanation:
[W]e understand section 44.184 to impose a duty on the Criminal
District Attorney to represent the county if requested, but not to
deprive the Commissioners Court of the option of availing itself of
the advice of other counsel when the legal matter to be addressed is
not one within the Criminal District Attorney's exclusive domain.
Guynes v. Galveston Cnty., 861 S.W.2d 861, 864 (Tex. 1993). Indeed, courts have "upheld the
power of a commissioners court to hire counsel to assist it or other officials in carrying out their
responsibilities so long as the statutory duties of other county officials are not thereby usurped." Id
at 863.
While the Legislature has expressly authorized the "commissioners court of a county
with a population of more than 1.25 million [to] employ an attorney as special counsel ... to
... represent the county in any suit brought by or against the county," TEx. Loc. GOV'TCODEANN.
§ 89.001(a}-(b) (West 2008), it has also prescribed the method for selection of special counsel:
If the county does not have a county attorney, the district attorney or
criminal district attorney shall select the special counsel. The
selecting officer shall determine the terms and duration of
employment of the special counsel, subject to the court's approval.
Id. § 89.001(c) (emphasis added).3
When interpreting statutes such as this, we ascertain and give effect to the Legislature's intent
as expressed by the statute's language. City of Rockwall v. Hughes, 246 S.W.3d 621,625 (Tex.
2008). Where the text is clear, it is determinative of the Legislature's intent. Entergy Gu!fStates,
Inc. v. Summers, 282 S.W.3d 433,437 (Tex. 2009). Based on the plain language of section 89.001,
while the commissioner's court has the authority to determine whether to pursue or defend a claim
in court, it is for the criminal district attorney to "select the special counsel." TEX. LOc. GOV'T CODE
ANN. § 89.001 (West 2008); see also Driscoll v. Harris Cnty. Comm'rs Ct., 688 S.W.2d 569, 573
(Tex. App.-Houston [14th Dist.] 1984, writ refd n.r.e.) (applying predecessor to section 89.001,
and finding that, "if there was no county attorney, then the district attorney or criminal district
attorney was to participate in the process of employing special counsel"). Thus, we conclude that
Local Government Code section 89.001 designates the Dallas County Criminal District Attorney as
the officer authorized to select special counsel to represent the County in a suit brought by or against
the County.
'Dallas County does not have a county attorney, but "[tlhe criminal district attorney has all the powers, duties,
and privileges in Dallas County that are conferred by law on county and district attorneys in the various counties and
districts." TEx. GOV'T CODE ANN. § 44.157(b) (West 2004).
The Honorable Florence Shapiro - Page 3 (GA-0816)
Ms. Virginia Porter
II. Effect of Statutory Bar or Conflict
Senator Shapiro asks whether the Dallas County Criminal District Attorney is "precluded
from representing Dallas County in civil matters" because he is a state prosecutor as defined
in section 41.006 of the Government Code. Shapiro Request Letter at 2. TEx. GOY'T CODE ANN.
§ 46.001(3) (West Supp. 2010). We find nothing in chapter 46 that expressly precludes the Dallas
County Criminal District Attorney from representing the County in civil matters. Fnrthermore, we
note that other officials listed as state prosecutors in section 46.002 are authorized to represent their
respective counties in all matters pending before the conrts of their jurisdiction, not just criminal
matters. See, e.g., id. §§ 45.244 (West 2004), 46.002(3)(West Supp. 2010). Thus, the fact that the
Dallas County Criminal District Attorney is defined as a state prosecutor in chapter 46 of the
Government Code does not preclude him from representing the county in civil matters.
Senator Shapiro also asks whether the Dallas County Criminal District Attorney's authority
to select a special counsel changes "where a conflict of interest exists for the District Attorney."
Shapiro Request Letter at 1. In enacting section 89.001, the Legislature is fairly "presumed to have
enacted [it] ... with complete knowledge of the existing law and with reference to it." Acker v. Tex.
Water Comm 'n, 790 S.W.2d 299,301 (Tex. 1990). The Legislature requires that criminal district
attorneys be lawyers subject to the State Bar's ethical rules. See TEx. GOy'T CODE ANN. § 41.001
(West 2004) (requiring district attorneys to be licensed attorneys); id. § 81.071 (subjecting licensed
attorneys to the disciplinary jurisdiction ofthe state supreme conrt and state bar). Thus, when the
Legislature enacted section 89.001 in 1987 it surely anticipated that the county or district attorney
in the populous counties to which that provision applied would be subject to ethical constraints,
including conflict of interest rules. Accordingly, we believe that a conrt construing section 89.001
would likely find that a criminal district attorney could not select counsel for a commissioners conrt
where he or she is actually laboring under an ethical conflict in making that selection.'
III. Lawfulness of Contract Entered into by a Commissioners Court Without Prior
Approval of the Criminal District Attorney
Ms. Porter asks whether a contract for private "counsel representing the County negotiated
by Dallas County's Commissioners Conrt, without approval of the District Attorney, is lawfully
made or null and void.,,5 Porter Request Letter at 1. We note at the outset that this office does not
'This opinion does not address any pending accusation of conflict ofinterest. See Tex. Att'y Gen. Op. No. GA-
0557 (2007) at 3 (noting that discussing a particular disciplinary violation is beyond the scope of the opinion process).
The question whether a conflict exists is for the Crhninal District Attorney and the Conunissioners Court to negotiate
in the first instance and for an appropriate court to the extent agreement cannot be reached. See, e.g., TEx. CODE CRIM.
PROC. ANN. art. 2.07 (West 2005) (authorizing the 'Judge ofthe court" in which the district attorney represents the state
to appoint "any competent attorney to perform the duties of the office" where the district attorney is "disqualified" or
"unable to perform").
'We assume that the representation Ms. Porter is concerned about falls within the parameters of subsection
89.001(b) ofthe Local Government Code.
The Honorable Florence Shapiro - Page 4 (GA-0816)
Ms. Virginia Porter
approve, review, or comment on the terms of a particular contract in the opinion process. Tex. Att'y
Gen. Op. No. GA -074 3 (2009) at 1-2. Therefore, a determination as to whether a particular contract
is lawful or void is outside the scope of the opinion process. Id. at 2. However, we can address
general legal principles that may be relevant to whether a contract is permitted under the law. Id.
As noted above, a commissioners court has the authority to retain counsel for the purpose of
rendering advice and counsel. There is no statutory requirement that the criminal district attorney
endorse such a contract in order for it to be valid. However, in counties subject to section 89.001
of the Local Govemment Code, where the engagement goes further and includes authorization to
"represent the county in any suit brought by or against the county," the engagement is to be made
by the county, district, or criminal district attorney. An engagement made in violation of this
requirement could be ratified or voided at his or her election, subject to the possibility of a disabling
conflict or other disability detailed above, in which case the issue would be resolved by an
appropriate civil court.
The Honorable Florence Shapiro - Page 5 (GA-0816)
Ms. Virginia Porter
SUMMARY
Although the Dallas County Criminal District Attorney has
broad authority over most criminal matters and a duty to represent the
state in those matters in Dallas County, he does not have a duty to
represent Dallas County in all civil matters. However, the Dallas
County Criminal District Attorney does have the power to select
counsel and to determine the terms and duration of the engagement
where the representation will include filing or defending a suit by or
against the County.
While the Dallas County Criminal District Attorney is not
barred from exercising this or any other power on account of his
status as a state prosecutor under the statutory provision defining and
constraining that office, he is subject to ethical rules governing
conflicts of interest that could preclude him from selecting counsel.
Whether such a conflict exists is a matter for the Criminal District
Attorney and the County Commissioners to determine in the first
instance and, barring agreement, as an ancillary matter for the civil
court.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128122/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-415
of :
: October 15, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE STEVEN M. WOODSIDE, COUNTY COUNSEL, COUNTY OF
SANTA CLARA, has requested an opinion on the following question:
May a superior court judge accept the California Peace Prize Award, a cash prize of
$25,000, from the California Wellness Foundation for his efforts to prevent violence, both in his professional
role as a juvenile court judge and as a community leader?
CONCLUSION
A superior court judge may not accept the California Peace Prize Award, a cash prize of
$25,000, from the California Wellness Foundation for his efforts to prevent violence, both in his professional
role as a juvenile court judge and as a community leader.
ANALYSIS
The California Wellness Foundation is a private, non-profit charitable organization that was
initially funded in 1992 by a substantial endowment from a major California health maintenance
organization. It provides grants totalling approximately $40 million each year to improve the health and
well-being of the people of California. It named a superior court judge as one of three winners of its 1996
California Peace Prize Award. In addition to the public recognition of the judge's contributions in preventing
violence, the award included a cash prize of $25,000. The award was unsolicited by the judge, and he may
use the funds for whatever purposes he chooses. We are asked whether the judge may accept the $25,000
award, made both for his professional activities as a superior court judge assigned to the juvenile court and
for his non-professional community activities. We conclude that the judge may not accept the cash award.
Code of Civil Procedure section 170.9 Footnote No. 1 provides:
"(a) No judge shall accept gifts from any single source in any calendar year with a
1 of 5
( ) j g p g y g y y
total value of more than two hundred fifty dollars ($250). This section shall not be construed to
authorize the receipt of gifts that would otherwise be prohibited by the California Code of
Judicial Ethics adopted by the California Supreme Court or any other provision of law.
"(b) This section shall not prohibit or limit the following:
"(1) Payments, advances, or reimbursements for travel and related lodging and
subsistence permitted by subdivision (e).
"(2) Wedding gifts and gifts exchanged between individuals on birthdays, holidays
and other similar occasions, provided that the gifts exchanged are not substantially
disproportionate in value.
"(3) A gift, bequest, favor, or loan from any person whose preexisting relationship
with a judge would prevent the judge from hearing a case involving that person, under the Code
of Judicial Ethics adopted by the California Supreme Court.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) For purposes of this section, `judge' means judges of the municipal or superior
courts, and justices of the courts of appeal or the Supreme Court.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(l) `Gift' means any payment to the extent that consideration of equal or greater
value is not received . . . . However, the term `gift' does not include:
"(1) Informational material such as books, reports, pamphlets, calendars, periodicals,
cassettes and discs, or free or reduced-price admission, tuition, or registration, for informational
conferences or seminars. No payment for travel or reimbursement for any expenses shall be
deemed `informational material.'
"(2) Gifts which are not used and which, within 30 days after receipt, are returned to
the donor or delivered to a charitable organization without being claimed as a charitable
contribution for tax purposes.
"(3) Gifts from a judge's spouse, child, parent, grandparent, grandchild, brother,
sister, parent-in-law, brother-in-law, sister-in-law, nephew, niece, aunt, uncle, or first cousin or
the spouse of any such person; provided that a gift from any such person shall be considered a
gift if the donor is acting as an agent or intermediary for any person not covered by this
paragraph.
"(4) Campaign contributions required to be reported under Chapter 4 (commencing
with Section 84100) of Title 9 of the Government Code.
"(5) Any devise or inheritance.
"(6) Personalized plaques and trophies with an individual value of less than two
hundred fifty dollars ($250).
"(7) Admission to events hosted by state or local bar associations or judges'
professional associations, and provision of related food and beverages at such events, when
attendance does not require 'travel' as described in paragraph (3) of subdivision (e)."
2 of 5
"(m) The Commission on Judicial Performance shall enforce the prohibitors of this
section."
In interpreting and applying the provisions of section 170.9 to the cash award in question, we rely on well
established principles of statutory construction. We are to interpret statutes so as to effectuate the intent of
the Legislature. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 721, 724.) "In so doing we turn first to
the statutory language, since the words the Legislature chose are the best indicators of its intent. [Citation.]"
(Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal. 4th 821, 826.) The
words of a statute are to be given "their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2
Cal. 4th 593, 601.) When "statutory language is . . . clear and unambiguous there is no need for construction,
and courts should not indulge in it." (Rojo v. Kliger (1990) 52 Cal. 3d 65, 73.) The plain meaning of words in
a statute may be disregarded only when that meaning is "`repugnant to the general purview of the act,' or for
some other compelling reason. . . ." (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33
Cal. 3d 211, 219.)
Here the Legislature has expressly defined the type of "gift" proscribed by the statute. We
are not free to adopt a different definition. As explained in In Re Marriage of Stephens (1984) 156
Cal. App. 3d 909, 913:
"The Legislature has power to prescribe legal definitions of its own language, and
when an act passed by the Legislature embodies a definition it is binding on the courts.
[Citation.] Terms defined by the statute in which they are found will be presumed to have been
used in the sense of the definition. [Citation.]"
It is apparent that the $25,000 cash award in question falls within the definition of a "gift"
for purposes of section 170.9 regardless of whether it is denominated an "award" or "prize." Neither the list
of non-prohibited gifts (§ 170.9, subd. (b)) nor the exceptions to the definition of a gift (§ 170.9, subd. (l))
sanctions receipt of a gift of the nature or size of the California Peace Prize Award. The fact that the
Legislature has specified certain exemptions from the definition of a gift and specified other exemptions from
the prohibition against the receipt of gifts indicates an intent to limit the exceptions to those enumerated in
the statute. "Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions
are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to
the contrary." (Sierra Club v. State Bd. of Forestry (1994) 7 Cal. 4th 1215, 1230.)
We note that the prohibition on accepting gifts is not unique to judges. For example, the
Ethics in Government Act of 1990 (Gov. Code, §§ 89500-89522) prohibits state and local officials from
accepting gifts valued at more than $250. Government Code section 89503 states:
"(a) No elected state officer, elected officer of a local government agency, or other
individual specified in Section 87200 shall accept gifts from any single source in any calendar
year with a total value of more than two hundred fifty dollars ($250).
"(b) (1) No candidate for elective state office, for judicial office, or for elective office
in a local government agency shall accept gifts from any single source in any calendar year with
a total value of more than two hundred fifty dollars ($250). . . .
"(c) No member of a state board or commission or designated employee of a state or
local government agency shall accept gifts from any single source in any calendar year with a
total value of more than two hundred fifty dollars ($250) if the member or employee would be
required to report the receipt of income or gifts from that source on his or her statement of
economic interests.
3 of 5
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." Footnote No. 2
The Supreme Court has adopted a similar standard in Canon 4D(6) of the California Code of
Judicial Ethics:
"A judge shall not accept and shall discourage members of the judge's family residing
in the judge's household from accepting a gift, bequest, favor, or loan from anyone except as
hereinafter provided:
"(a) any gift incidental to a public testimonial, books, tapes, and other resource
materials supplied by publishers on a complimentary basis for official use, or an invitation to the
judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the
improvement of the law, the legal system, or the administration of justice;
"(b) advances or reimbursement for the reasonable cost of travel, transportation,
lodging, and subsistence which is directly related to participation in any judicial, educational,
civic, or governmental program, or bar-related function or activity, devoted to the improvement
of the law, the legal system, or the administration of justice;
"(c) a gift, award, or benefit incidental to the business, profession, or other separate
activity of a spouse or other member of the judge's family residing in the judge's household,
including gifts, awards, and benefits for the use of both the spouse or other family member and
the judge, provided the gift, award, or benefit could not reasonably be perceived as intended to
influence the judge in the performance of judicial duties;
"(d) ordinary social hospitality;
"(e) a gift for a special occasion from a relative or friend, if the gift is fairly
commensurate with the occasion and the relationship;
"(f) a gift, bequest, favor, or loan from a relative or close personal friend whose
appearance or interest in a case would in any event require disqualification under Canon 3E;
"(g) a loan in the regular course of business on the same terms generally available to
persons who are not judges;
"(h) a scholarship or fellowship awarded on the same terms and based on the same
criteria applied to other applicants."
Finally, we note that the $25,000 cash award would be given for the judge's contributions as
a juvenile court judge and for his community service. Penal Code section 70 generally prohibits state and
local officers and employees from receiving "any emolument, gratuity, or reward . . . for doing an official
act." (See Lees v. Colgan (1898) 120 Cal. 262; see also Pen. Code, § 70.5; Gov. Code, § 19990, subd. (d).)
We conclude that a superior court judge may not accept the California Peace Prize Award, a
cash prize of $25,000, from the California Wellness Foundation for his efforts to prevent violence, whether
given for his professional role as a juvenile court judge or as a community leader.
*****
Footnote No. 1
All references hereafter to the Code of Civil Procedure are by section number only. Return to text
Footnote No. 2
Individuals specified in section 87200 are "elected state officers judges and commissioners of courts of the judicial branch
4 of 5
Individuals specified in section 87200 are elected state officers, judges and commissioners of courts of the judicial branch
of government, members of the Public Utilities Commission, members of the State Energy Resources Conservation and
Development Commission, members of the Fair Political Practices Commission, members of the California Coastal
Commission, members of planning commissions, members of the board of supervisors, district attorneys, county counsels,
county treasurers, and chief administrative officers of counties, mayors, city managers, city attorneys, city treasurers, chief
administrative officers and members of city councils of cities, and other public officials who manage public investments,
and to candidates for any of these offices at any election."
5 of 5 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128145/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 22, 20 I 0
The Honorable R. Kelton Conner Opinion No. GA-0799
Hood County Attorney
1200 West Pearl Street Re: Compensation of judges serving on a juvenile
Granbnry, Texas 76048 board (RQ-0861-GA)
Dear Mr. Conner:
You ask, on behalf of the Hood County Commissioners Court ("Commissioners Court"),
'" [w]ho has the authority and responsibility to establish, increase, decrease or eliminate the amount
of compensation to be paid to the judges serving on the Juvenile Board of Hood County[.]''''
A brief attached to your request explains that the Hood County Juvenile Board ("Board")
"was created under [c]hapter 152, Human Resources Code [s ]ubchapters A and B.,,2 Subchapters
A and B both contain provisions related to the compensation of the Board. Subchapter A provides
that "[t]he compensation authorized under this chapter for a judge serving on a juvenile board is in
addition to all other compensation provided or allowed by law for a judge." TEx. HUM. REs. CODE
ANN. § 152.0003 (West Supp. 2010). Subchapter B provides that "[s]ervice on ajuvenile board by
a judge is an additional duty of office" and that "[t]he commissioners court may reasonably
compensate each member ofthe juvenile board for the member's additional duties." Id. § 152.0034
(a)-(b) (West 2001) (emphasis added).
In construing section 152.0034, we "ascertain and give effect to the Legislature'S intent as
expressed by the statute's language" and "we give meaning to the language consistent with other
provisions in the statnte." Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010). We
consider first the meaning of the term "may" as used in section 152.0034(b). As previous attorney
lRequest Letter (available at http://www.texasattomeygeneral.gov).
'Briefat I (available athttp://www.texasattomeygeneral.gov). In addition, you clarifY that "Hood County does
not have a Family District Coutt and no provisions for Hood County are set forth in" subchapter D of chapter 152.
Request Letter; see also TEX. HUM. RES. CODE ANN. §§ 152.0051-.0055 (West 2001) ("Subchapter C: County Juvenile
Board in Counties with a Family District Court"). It is, therefore, our understanding that neither subchapter C nor D of
chapter 152 are applicable to the Board. We also note that certain sections of subchapter A do not apply to the Board.
See TEX. HUM. RES. CODE ANN. § 152.0040 (West2001) (providingthat"[s]ections 152.0002, 152.0004, 152.0005, and
152.0009 do not apply to ajuvenile board operating under" subchapter B).
The Honorable R. Kelton Conner - Page 2 (GA-0799)
general opinions explain, in construing a statute, "the use of the word 'may' as opposed to 'shall'
generally indicates discretion or choice between two or more alternatives, but the context in which
the word appears must be the controlling factor." Tex. Att'y Gen. Op. No. JC-0517 (2002) at 4
(quoting Tex. Att'y Gen. LO-93-60, at 1-2); see also Tex. Att'y Gen. Op. No. GA-0622 (2008)
at 3 ("The word 'may' denotes discretion not to do something.") (citing Texas Government Code
section 311.016(1)). Nothing in the language of section 152.0034 indicates that the Legislature
intended to use the tenn "may" in anything but its usual sense. Moreover, the term "may" in section
152.0034(b) is qualified by the term "reasonably." TEx. HUM. REs. CODE ANN. § 152.0034(b) (West
2001). It would have been unnecessary to qualifY the authority by inserting the word "reasonably"
if the Legislature had not intended to grant a commissioners court discretionary authority over the
amount of compensation ofa board. Cf Old Am. Cnty. Mut. Fire Ins. Co. v. Sanchez, 149 S.W.3d
111, 115 (Tex. 2004) (presuming that every word of a statute is included or excluded for a reason).
Considering section 152.0034 in the context of subchapter B also indicates the
commissioners court has the discretion, but not the duty, to compensate a juvenile board. The very
next section of subchapter B uses the term "shall" in referring to the commissioners court's duty to
reimburse juvenile board members for their actual and necessary expenses. See TEX. HUM. REs.
CODE ANN. § 152.0035 (West 2001) ("The county shall reimburse ajuvenile board member for the
member's actual and necessary expenses incurred in performing official duties on the board.")
(emphasis added); see also TEx. GOV'T CODE ANN. § 311.016(2) (West 2005) (explaining that the
term "shall" imposes a duty unless the statute expressly provides otherwise or the context necessarily
requires a different construction). Had the Legislature intended to impose a duty on the
commissioners court to compensate a juvenile board under section 152.0034(b), it would have
similarly used the word shall. 3 Cf Old Am. Cnty. Mut. Fire Ins. Co., 149 S.W.3d at 115 (presuming
that every word of a statute is included or excluded for a reason).
Finally, we note that prior attorney general opinions have construed other provisions of
chapter 152 to authorize a commissioners court to set the amount of compensation of a juvenile
board: See Tex. Att'y Gen. Op. Nos. GA-0715 (2009) at 2 (construing Human Resources Code
section 152.0971), DM-103 (1992) at 2 (construing Human Resources Code section 152.0411(c)).
Thus, our conclusion here is consistent with other provisions in chapter 152 in regard to the
relationship between a commissioners court and a juvenile board as to the compensation ofthe board
members.
'In addition, as evidenced by certain statutes pertaining to specific juvenile boards, the Legislature does not
believe it imperative to compensate those serving on a juvenile board. See, e.g., TEX. HUM. RES. CODE ANN. §§
152.0791(e) (West 2001) (providing that public members of the Falls County Juvenile Board serve without
compensation); 152.0901(c) ("The juvenile board members [of Galveston County] do not receive compensation for
serving on the juvenile board" but shall be paid $75 per month for performing certain duties).
'The exact scope of that authority may, of course, differ depending upon the statute at issue. For example, the
Legislature sometimes establishes a statutory minimmn and maximmn amount of compensation for a juvenile board
within which a commissioners court must act. See Tex. All'y Gen. Op. No. DM-103 (1992) (construing Hmnan
Resources Code section 152.0411(c)).
The Honorable R. Kelton Conner - Page 3 (GA-0799)
Having examined section 152.0034(b)'s express terms in the context of subchapter B, we
conclude that section 152.0034(b) grants a commissioners court discretionary authority over the
compensation of a juvenile board member. See Tex. Att'y Gen. LO-94-055, at 3 ("The
commissioners court also has a role in determining the district judge's compensation. It may ...
compensate the district judge for serving on the juvenile board [under section 152.0034]."). It is our
opinion that the Commissioners Court has authority under section 152.0034(b) to establish, increase,
decrease, or eliminate the amount of compensation to be paid to the judges serving on the Board. 5
'One briefreceived by our office suggests that this conclusion conflicts with state law and prior attorney general
opinions that address the general fInancial independence of a juvenile board. See Brief from Honorable Vincent J.
Messina, Hood County Court at Law Judge, to Nancy Fuller, at 2-3 (Mar. 26, 2010) (citing, for example, Local
Government Code section 140.003, which provides that a juvenile board is a specialized local entity and thatthe county
disburses and cares for its funds as the entity directs). We disagree. A juvenile board has general fInancial independence
only to the extent that a statutory provision does not explicitly provide otherwise. Here we have a statute that expressly
provides that the commiSsioners court has discretionary authority to compensate the members of the juvenile board.
Moreover, none of the opinions cited in the brief construe section I 52.0034(b) of the Human Resources Code. See
generally, e.g., Tex. Att'y Gen. Op. Nos. JC-0209 (2000) (regarding ajuvenile board's authority to contract with an
attorney to represent it in litigation); JC-0085 (1999) (regarding the authority of commissioners court to set salaries for
employees of a juvenile probation department); DM-460 (1997) (regarding a juvenile board's authority to enter into
contracts or authorize expenditures for the juvenile probation department).
The Honorable R. Kelton Conner - Page 4 (GA-0799)
SUMMARY
Pursuant to section lS2.0034(b) of the Human Resources
Code, the Hood County Commissioners Court has the authority to
establish, increase, decrease, or eliminate the compensation paid to
the judges serving on the Hood County Juvenile Board.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143208/ | 690
OFFICE OF THE AITORNEY QENERAL OF TEXAS
AUSTIN
0-COMAI
--
Ronomble John W. Splsa, K. D., Dsln
Unlrerwity of Texao, Yeflloal Branoh
Uslveoton,Texar
Dear Sir:
Iour letter of Feb
ot thlr department rclstlug
Auatln for 8 lloenre to pr8U
Enolo6urer w%th yo 4 th8t ii160 &6tin
of rolrnoe degree
8 B8dNr de@'Oe~
6 had nlae years of
tesohlng experienoe
whethe+ or not Xl6
tramthe rtmteof rtate se a proter-
8loid nurse.
ad6 46 fOll0W6!
aharaoter nho h&56 *
a a proferrion81 nur6e from
maentr sre equal to there
ltlual qu8llflo8tion6 8h8ll
oee required in thir law, rno~ be
o praotioe nurrlng in thir St&e
, provldsd 8 fee or tlfteen aol-
Board by suah spplieant.*
Before a profsrrianal nurse from another 6tate may be
gl%nted a llosnse to prootlo4 nurolng in thlr state tithout ex-
a6Matlon, it mu6t appaar:
(1) that ahe hold6 a registration osrtlfiaatr 86
8 professloaal nur64 fr4m anothar stabe;
691 I
Honorable John W. Spi46, paga 2
(2) that the requirement6 of 6uoh other ltste
al-4 4f@lSl t0 tho64 Of T4X86; 8nd
-(S) thnt her IndIvidu81 qusllfio~tlone are e-
@V8lbnt t0 those r4qUir4d by the 6tStUte6 Of r4X86.
Th464 faotr murt apo48r befor the Board ef i?Jwr8eu-
nlnero of Texae I6 suthorlsed to grsnt a liesnor to a prOfOe-
elonal nur6e from another 6tate wlthout exuolnation.
Under th4 hnguage of the rtatute It I8 indlepene8ble
that the nurse hold a regi6trstion oertlfioate frou another
etate. ff.Ui86 huuetln doe6 not hold luoh 8 oert~tloate, It 18
our opinion that the Board would not be suthorlred, under Art-
1014 4521, to grant her a lloenre to praotioe nurring In Texae.
Th4 ooadltlon *whore requlremente 8re lqu81 to thoee
o? Toura Involve6 8 faot flndlng by the Board that the lrwe
of the rtate from which tha nuree hold6 8 rrgI6tratisn oertlfl-
eate equal thoec in Texar.
The eondItlon 'whore lndIvidu81 qu8lIfloatieae eh811
be equivalent to tho68 ZWqUIXWd In thle l8u* likewIre lavolver
a t8ot finding by the Board in the light af the following befin-
Itionr of the term u4quivalent.n
Qquiva14ntY mesne eq,url In value, foroe, me8nlng, or
llk4; &en equsl 60 tar 86 oonoerne matter under oone~t%errtlon
or squal in worth or v8lue, power, defeot, Import, and like.
Vol. 1, Word6 md Phra6e6, Fourth eerier, psge 905; olting At-
lantio Ohrlatlan (lolSeg8 v. Hlnas, 152 3.E. 79'7.
The vor4 *equivalent* means eaual In value, worth,,
idor, or elgnlflaanoe,
but meaning to $8 attaohed to word In
laoh lnetano4 depend4 upon oiroum6t6noea. Vol. 8, W0rUe and
Phra686, Fifth 3eric6, page 74’7’1;oItIn& Callahan v. Telpter,
185 A. 400.
If HI66 Austin hold6 a regirtratlon certifio804 from
snother stat4 and, a6 a faatual matt4r, the requirsmentr of
6uoh etate arc) equal to thO6e of Tex6.6, and if, 86 8 f8OtUSt
BStber, the !nd.IVlduSl qUaldfi4??tiOn6 a? )4i86 Aurtin 8re lq uiV-
alent, in the light of the fore$joIng deZInltIon8, to there re-
quIre6 In the liurse’s law of T4x84, Hi66 Au6tin is entitled to
bc granted a llocn44 to praotloe nurrtng In Oh16 State wIthout
examination, Drovlded thr required fee ir paid. Cornrercleljr,
692
Honorable Jahn W. Spire, page 3
11 the64 faOt6 do not 4xllt, whloh must be dstermlned by the
Board, the Board would be Justified In relurlng to grant the
lioense;
Inasmuch a6 all of the fact6 incident to the 8ppli-
o8tlOn Of MI66 Austin are not before thle department, and, In
the final analyrlr, proeent raot queationr to be rerolved by
thr Board In It6 UIsoretIon, we o8nnot oategorlo8llr rule wheth-
er or not Xi68 Auatln 16 entitled to a licen6e to pr8otIoe
nurrlng In this State unbar th4 provlslone of fu%Iole 4621. We
tl'U6t, howevtr, that ths Board will b4 enabled, In the light of
this dI6ou66Ion, to properly aircharge It6 duty ln rerpeot to
ml.66 Aulrtin.
/$gligg;* AT
ATTCRqI';“ijLA | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143213/ | .- -~.
THEATTORNEY GENERAL
OF-XAS
GERALD C. MANN
Honorable Homer Garrison, Jr.
Director
Department of Public Safety
Austin, Texas
Attention: J. B. Draper, Chief
Certificate of Title Division
Dear Sirs Opinion No. O-3154
Re: Registration of new motor vehicles
by county tax collector when appli-
cation for certificate of title has
been made in another county.
8% acknowledge receipt of your letter of February 10, 1941, in
which you request the opinion of this department upon the following situation:
"This Department desires an opinion whether it is permissible, under the facts
set forth, for the county tax collectors to permit caners of newmotor vehicles
to register in one county and file applications for Certificates of Title in
another county."
The letter which ycu enolosed from Mann Fuller, Tax Assessor-
Collector of Gregg County states that the Humble Oil Company seeks to regis-
ter motor vehicles in Gregg County and send their manufacturers' certificates
to their hcme office in order to apply for certificate of title in the ccunty
in tiich it is located. Mr. Fuller also states that he has been advised by
the Tax Collector of Rtisk &unty that he has followed this procedure in the
registration of motor vehioles and has permitted applicants for new license
plates to send their manufacturers' certifiaates to their hcme offices.
I% enclose e. copy of Opinion No. O-2050 rendered by this depart-
ment which reveals that the registration lawsof Texas per&t registration of a
motor vehicle by either the perecn having legal title, legal possession, or
legal control of said motor vehicle. In other words, a motor vehicle may be
registered in the county of dcmioile of the person having legal possession or
legal control of said vehicle although the person holding legal title to said
vehicle resides in another county.
The Texas Certificate of Title Aot is contained in Vernon's hnnp-
tated Penal Code of Texas and designated Article 1436-l+ Section 63(b) reads
as followsr
"The department or any agent thereof, shall not after the first of January,
1942, register or renew the registration of any motor vehicle, unless and un-
til the owner thereof shall make application for and he granted an official
certificate of title for such vehicle or present satisfactory evidence that
a certificate oftitleibr such vehicle has been previously issued to such
owner by the Department. Provided, however, this shall not apply to
,-.
Honorable Homer Garrison, Jr., page 2 (O-3134)
automobiles which mere purohased prior to January 1, 1936."
Since the above section, by its own terms, does not become operative
until January 1, 1942, the clear inference is that neither the Dspartment of
Public Safety nor any of its agents shall require, prior to January 1, 1942,
that application for and granting of an official certificate cftitle be made
before the vehicle is registered. Fxther, it appears that Article 1436-l re-
s that application for certificate of title bs made by the "onnor" in the
county of his domicile and section 4 of said artiole defines the term "owner*
as fcllcwsr
"The term 'comer' includes any person, firm, association, or ocnpcraticn other
than a manufacturer, importer, distributor, or dealer claiming title to, or hav-
ing a right to operate pursuant to R lien on a motor vehicle after the first
sale as herein defined, except the federal government and any of its agencies,
and the State of Texas, and any governmental subdivision or agenty thereof not
required by law to register or lioense motor whioles owned or used thereby
in this State."
Frcm the provisions above referred to it is clear that the requiranents
of Article 6675a, Vernon's Revised civil Statutes, the registration law, and of
Article 1436-1, the certificate cftitle act, not only are act aprallel but
bear no similarity whatever. Furthermore, it appears that by the specific tenas
of Article 1436-1, a tax collector is prohibited from requiring that application
for oertificate of title be made before registration of motor vehicles, up to
January 1, 1942. After January 1, 1942, a tax collector should require that
certificate of title be ussed upon a vehicle before it is registered, unless
that vehicle was purchased prior to January 1, 1936, but he cannot require that
certificate cftitlebe issued in the same ocunty in which the vehicle is sought
to be registered. The procedure followed by the tax colleotor of Rusk County is
proper and complies with both the registration laws and the oertificate of title
1RW. Depending upon the fact situation existent at the time, motor vehicle may
bo registered in the county of the domicile of the holder of legal title or in
the county of domicile of the person in legal possession or legal control of the
vehicles.
It is therefore the opinion of this department that prior to January 1,
1942, tax oclleotcrs should register new motor vehicles without requiring the
production of a manufacturer's certificate and application for certificate of
title. It is further the opinion of this department that, dependent uponthe
fact situation, motor vehicies may be registered in one county and appiicaticn
for certificate of title issued in either the same county or in another county.
Yours verytruly
RCsdbregw
Enclosure AT'IOREEYGEEER4LOFTEXAS
4PPROVED FEB 21, 1941
/d GERALD C. MAEN By /s/Ross Carltcn
A!ITOBBEYGEEEP-ALOFTEXAS
Approved Ross Carltcn
Opinion Committee Assistant
By B W B Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143214/ | OFFICE OF THE A~ORNEY GENERAL 0~ TEXAS
AUSTIN
HonorableF'md Roz'ricr
CouutyAuditor
Polk Coun$y
Livingston,Texas
Bar S3.m
Your reoiat reauest fo t-
ourt,
eout,thatrbond
te that,.our BorluQlesiQi-lers
sot
Commtesi~onersof :tbeirrerrpeo-
tvw bonda; supposedlyas set out #2380, i
and 6762: mm ,oneot the tbmmlsslone~ahas MI--
fuabd 60 m&e ~onlyone bond; se set Outsin AH.4
#23&O." “ :_~
~.Aptioles 2340, 6744, and 6762~;brnon’~ Annotated Civil
Statutes;.read:r
as follows;
gcnorableFred Norris, Page ~2
"Art. 2340. Before enteringupon the
duties 0r their arflae the oountg judge and
each oommIstafozlerwhali take the~ofSlofaloath
end shall alao t&e a written oath that he vlL!
not be dlrsotlp 0r.Indlreo~tl.yInterestedLa any
contraot vltih,~
or claim against, the county In
whLch he realdes, exoept such warrants a6 may
issue to him as isca of offl.ce. Eaoh~oezmls-
sloner shall exeoute a bond to be approved by
the county Judge lnthe aumoftbmsthmmmd
dollars, payable to the county treasurer, aon-
dftioned SOF the felthful perfomawoe of the
duties OS his offlce, that he will pay ,overto
hia county ati moneys Illegallypaid to him
out of county Sunds, a8 voluntarypayment8 or
othervlre,and that he ~111 not vote or gfve
his tonsent to pay out county f'undsexoept SOP
lawful purpooes.
“Art. 6744. X&ah road superintendent
shall wlth%n tventy cl&yeafter his appointment
take and subscribe the oath requiredby the
Constitution,and give-bond payable to and to
be approved by t&s aountr judge in such m&m ee
the conmIssioner@court my S&x, oondltloned
that he will faithfullyperform all the dutier
required of htm by.law or the uoraulruionerr
oourt, snd that he vi11 pay out and disburse
the inads aubjeot to hlr oontrol as the lav
provlQee or aa+l oourt BWJJdlreot.
"&ii. 6762. In,all oountlee of thle
State; 6s &mm by the preoedlng Federal oen-
BUS to oontain as many as forty thousand In-,
habitants the members of the~commissioners
court ,shailbe ex-oSSl.cioroad ooamisalonersof
theiF respectivepreoinots$ and under the direo-
tlon OS the oomnf.sslone~scourt shall have charge
of the ttmas, tools and lrvschlnerg
belongIng
to Qmoounty and placed In the~lrhands bg
8aEd oourt. They shall superintendthe ,layfng
outiof new roads, the making or ohasging of
roads and the building of bridges under rules
adopted by eaLd oourt. Bach aommlaelonershall,
first execute a bond OS one thousand dollar8
payabze to and to be sipprovedby the eOuntY judge
Sor..ae&se and benefit of the road and bridge
fund, owdltloned that he will perform al1 the
. . .._
-, r
BonorableFred Borris, Page 3
duties required of him by lav, or by the oom-
missioners court, and that he vi11 account for
all money or #her property belonging to the
county that may o&ue into his possesalon."
Polk county has the population of 20,636 lnhabltants
accordingto the 190 Federal census.
Under Article 2340, supra, a bond for the faithful
performanceof the duties of the offloe is required OS each oom-
tissioner: Where aounty oommlsslonersare made ex-offloio road
commissionera, and in this capaolty a oommls8ioneri8 requlped
to give another and differentbond as required by Artlole 6762,
supra, Bovever, it vi11 be noted that Artiole 6762 only spplls~
to those counties containingaa many as 40,000 Inhabitantsas
shownby the preceding Federal census. It is provided by Article
6769,Vernon's Annotated Cl.vilStatutes that this law shall not
be in operation in any county unless the commissioners court
thereof in theiF judgmentmay deem it advisable,and then only
by an order OS said court when all the members are present, made
Et some regular term thereof, wcepting the provisions of said
Let and such order shall be entered on the minutes of the said
court.
We do not think that Article 6744 and Article 6762 are
Epplicableto the question under conslderurtlon. ThereSore, you
are respectful13advised that It 1s the opinion of thla depart-
ment that the commissionersof Polk Gounty do not have the legal
Nthorltg to act as ex-officioroad oommiaaloneraas contemplated
by Article'6762,snd that saSd cormniasioners are required to make
Odlg one bond aa required by Artiole 2340, Vernon’s Annotated
Civil Statutes.
Trusting~thatthe foregoing fully ansvers your inquiry,
lb are
Yours very truly
ATTORNEY OEHERAL OF TFSAS
~.APFROVEDMAR i
1, 1941
lw;RS
ATTORhrEY Gi%~RAT, 03 TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4394415/ | VACATE, AFFIRM, and REMAND; and Opinion Filed May 6, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00250-CR
No. 05-18-00251-CR
CHRISTOPHER ROGERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F16-550150-Q, F17-34648-Q
MEMORANDUM OPINION
Before Justices Brown, Schenck, and Pedersen, III
Opinion by Justice Schenck
This is a consolidated appeal of two cases in which appellant Christopher Rogers was
convicted of possession of methamphetamine and possession with intent to deliver
methamphetamine. In four issues, appellant asserts (1) the sentence imposed in his possession
case is beyond the applicable punishment range; (2) his indictment in the intent to deliver case was
not properly amended, precluding consideration of prior convictions for enhancement purposes;
and his (3) plea of true in the possession case and (4) plea of guilty in the intent to deliver case
were rendered involuntary because he was not properly admonished as to the correct ranges of
punishment. With respect to the possession case, we affirm appellant’s conviction, vacate his
sentence, and remand the case to the trial court for a new hearing on punishment. With respect to
the intent to deliver case, we affirm the trial court’s judgment. Because all issues are settled in
law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was charged by indictment with the third-degree felony offense of possession of
methamphetamine in an amount of 1 gram or more but less than 4 grams, enhanced by a prior
conviction. The offense was alleged to have occurred on May 26, 2016. On February 23, 2017,
the trial court granted the State’s motion to strike the enhancement paragraph and appellant entered
a negotiated plea of guilty. The trial court accepted appellant’s plea and, in accordance with the
terms of the plea agreement, placed appellant on four years’ deferred-adjudication probation. The
trial court imposed conditions of probation. On June 22, 2017, the State moved to revoke
appellant’s probation and to proceed with an adjudication alleging appellant had violated various
conditions of his probation.
In addition, while appellant was on probation, he was charged by indictment with the first-
degree felony offense of possession with intent to deliver methamphetamine in an amount of 4
grams or more but less than 200 grams, enhanced by a prior conviction in 1988 for burglary of
habitation. The possession with intent to deliver offense was alleged to have occurred on
September 11, 2017. On January 18, 2018, the State gave appellant notice that it intended to
enhance the punishment range using two prior burglary of habitation convictions that occurred in
1992 and 1995.1 On January 19, 2018, the State moved to strike the enhancement for the 1988
burglary conviction and replace it with the 1992 and 1995 burglary convictions. The trial court
granted the State’s motion the same day.
On January 29, 2018, appellant appeared before the trial court in both cases. In the
possession case, appellant pleaded true to the allegations in the State’s motion to adjudicate. In
1
The notice referenced appellants conviction of the felony offense of burglary of habitation in the 158th judicial district court of Denton
County in Cause Number F95-0184-B on the 17th day of October, 1995, and conviction of the felony offense of burglary of a habitation in the
204th district court of Dallas County in Cause Number F89-87924 on the 26th day of March, 1992.
–2–
the intent to deliver case, appellant entered an open plea of guilty to the charged offense and
pleaded true to the two enhancement paragraphs.
On February 28, 2018, appellant appeared before the trial court for punishment in the two
cases. In the possession case, the trial court accepted appellant’s plea of true to the allegations in
the State’s motion to adjudicate, found him guilty of the charged offense, revoked his probation,
and sentenced him to 20 years’ confinement. In the intent to deliver case, the trial court accepted
appellant’s open plea of guilty and his plea of true to the enhancement paragraphs, convicted him
of the charged offense, and sentenced him to 25 years’ confinement. The trial court ordered the
sentences to run concurrently.
DISCUSSION
I. Possession Case
In his first issue, appellant contends the trial court improperly assessed punishment in the
possession case because the court imposed a sentence that was outside the applicable range. The
State agrees. When the trial court revoked appellant’s probation and adjudicated appellant’s guilt,
it assessed punishment as if the enhancement paragraph that was originally in the indictment was
still in effect. Had appellant’s possession offense been subject to enhanced punishment, this
offense would have been elevated to a second-degree felony for which the punishment range is 2
to 20 years. TEX. PENAL CODE ANN. § 12.33(a). But the State had previously struck the
enhancement paragraph and did so prior to appellant entering his plea of guilty and as part of the
plea agreement. Consequently, appellant’s offense was a third-degree felony and not a second-
degree felony. The range of punishment for a third-degree felony is 2 to 10 years’ confinement,
not 2 to 20 years. Id. § 12.34(a). Consequently, appellant’s 20 year sentence in the possession
case is outside the applicable range of punishment. A sentence that is outside the statutory range
of punishment for the offense is unauthorized by law and, thus, illegal. Mizell v. State, 119 S.W.3d
–3–
804, 806 (Tex. Crim. App. 2003). Because appellant’s sentence in the possession case is illegal,
the trial court erred in assessing punishment in that case. We sustain appellant’s first issue.
II. Intent to Deliver Case
In his second and third issues, appellant contends the trial court did not effectively amend
the indictment to add the 1992 and 1995 burglary convictions as enhancement paragraphs and,
thus, he was erroneously admonished on the range of punishment making his plea of guilty to the
intent to deliver offense involuntary.
Appellant relies on articles 28.10 and 28.11 of the code of criminal procedure to support
his claim the amendment to the indictment was ineffective. Articles 28.10 and 28.11 provide the
guidelines for amending an indictment or information. TEX. CODE CRIM. PROC. ANN. arts. 28.10,
28.11. More particularly, article 28.10 provides:
(a) After notice to the defendant, a matter of form or substance in an indictment or
information may be amended at any time before the date the trial on the merits
commences. On the request of the defendant, the court shall allow the defendant
not less than 10 days, or a shorter period if requested by the defendant, to respond
to the amended indictment or information.
(b) A matter of form or substance in an indictment or information may also be
amended after the trial on the merits commences if the defendant does not object.
(c) An indictment or information may not be amended over the defendant’s
objection as to form or substance if the amended indictment or information charges
the defendant with an additional or different offense or if the substantial rights of
the defendant are prejudiced.
See id. 28.10. Article 28.11 provides, “[a]ll amendments of an indictment or information shall be
made with the leave of the court and under its direction. Id. art. 28.11.
An enhancement allegation that is not part of the State’s case-in-chief is not part of the
“substance” of the indictment. Choice v. State, Nos. 05-11-00629-CR, 05-11-00630-CR, 2012
WL 3104676, at *3 (Tex. App.—Dallas July 31, 2012, pet. ref’d) (not designated for publication);
Thomas v. State, 286 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing
–4–
Stautzenberger v. State, 232 S.W.3d 323, 327 (Tex. App.—Houston [14th Dist.] 2007, no pet.)).
Thus, articles 28.10 and 28.11 do not apply to the amendment of enhancement allegations in the
indictment. Choice, 2012 WL 3104676, at *3; Thomas, 286 S.W.3d at 114.
While prior convictions used for enhancement purposes must be raised in some form, they
need not be pleaded in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).
When the State moves to amend the enhancement allegations and the trial court grants the motion,
the requisite notice has been provided. Davis v. State, No. 05-14-00378-CR, 2015 WL 1542211,
at *7 (Tex. App.—Dallas Apr. 2, 2015, no pet.) (mem. op., not designated for publication) (citing
Brooks, 957 S.W.2d at 34)).
While the State was required to give appellant notice of its intent to enhance his
punishment, the State was not required to plead enhancement paragraphs in the indictment. The
State’s motion to amend the indictment to remove the 1988 burglary conviction and add the 1992
and 1995 burglary convictions, which the trial court granted, provided notice to appellant that the
State intended to use these convictions to enhance his punishment. See Davis, 2015 WL 1542211,
at *7. The trial court and the State were not required to return to and also physically amend the
indictment. Id. In addition to the foregoing, the State gave appellant notice of its intent to use his
1992 and 1995 burglary convictions to enhance punishment via its January 18, 2018 Notice of the
State’s Intent to Enhance Punishment Range. This notice also satisfied the requirement articulated
in Brooks that the enhancement had to be pleaded somewhere. See Villescas v. State, 189 S.W.3d
290, 291, 295 (Tex. Crim. App. 2006).
Because articles 28.10 and 28.11 were not applicable, and because appellant was given
sufficient notice of the State’s intent to enhance his punishment with the 1992 and 1995 burglary
convictions, we overrule appellant’s second issue. We similarly overrule appellant’s third issue
because appellant was correctly admonished on the range of punishment that would apply should
–5–
the two enhancement paragraphs be found true prior to entering his guilty plea to the intent to
deliver offense.2 See Luckett v. State, 394 S.W.3d 577, 581 (Tex. App.—Dallas 2012, no pet.).
III. Admonishment
In his fourth issue, appellant asserts his plea of true to the allegations in the revocation
proceeding concerning the possession offense was involuntary because he was not properly
admonished as to the correct range of punishment.
A trial court is required to admonish a defendant of the range of punishment attached to an
offense before the defendant enters a plea of guilty or nolo contendere. See CRIM. PROC. art.
26.13(a)(1). The record before us reflects that appellant was admonished, in writing, before he
entered his plea of guilty to the possession offense, that the punishment range for the offense was
2 to 10 years’ confinement. That was the correct punishment range for this offense without
enhancement. PENAL § 12.34(a). Consequently, appellant was properly admonished before he
entered his guilty plea.
While the trial court commented during the revocation proceeding that it believed the range
of punishment for the possession offense is from 2 to 20 years, it did so after it accepted appellant’s
plea of true to violations of the terms of his probation. Consequently, the trial court’s statements
could not have impacted appellant’s plea decision. Moreover, the admonishment requirements of
article 26.13 do not apply in revocation proceedings, where the trial court determines whether a
probation violation has occurred and, if so, proceeds to punishment. See Gutierrez v. State, 108
S.W.3d 304, 309 (Tex. Crim. App. 2003).
Accordingly, we overrule appellant’s fourth issue.
2
The trial court admonished appellant that if he pleaded guilty to the possession with intent to deliver charge and true to the two enhancement
paragraphs the range of punishment would be 25 to 99 years or life confinement. This was the correct punishment range. See PENAL § 12.42(d).
–6–
CONCLUSION
We affirm the trial court’s judgment in appellant’s intent to deliver case (Cause Number
F17-34648). We affirm the portion of the trial court’s judgment in the possession case (Cause
Number F16-55015) with respect to appellant’s conviction, we vacate the portion of the trial
court’s judgment in the possession case with respect to appellant’s sentence, and remand the
possession case to the trial court for a new punishment hearing.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
180250F.U05
–7–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTOPHER ROGERS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-18-00250-CR V. Trial Court Cause No. F17-34648-Q.
Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee Justices Brown and Pedersen, III
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of May, 2019.
–8–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTOPHER ROGERS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-18-00251-CR V. Trial Court Cause No. F16-550515-Q.
Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee Justices Brown and Pedersen, III
participating.
Based on the Court’s opinion of this date, the portion of the judgment of the trial court with
respect to Christopher Rogers’ conviction is AFFIRMED, the portion of the judgment with
respect to Christopher Rogers’ sentence is VACATED, and the cause REMANDED for a new
punishment hearing.
Judgment entered this 6th day of May, 2019.
–9– | 01-03-2023 | 05-07-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4023676/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DANIEL KING, : No. 56 MM 2016
:
Respondent :
:
:
v. :
:
:
RIVERWATCH CONDOMINIUM :
OWNERS ASSOCIATION, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 11th day of August, 2016, the Application for Leave to Amend is
GRANTED. The Application for King’s Bench Relief is DENIED, without prejudice to
pursue other remedies, including disciplinary redress from the Disciplinary Board,
against Thomas P. Gannon, Esquire. | 01-03-2023 | 08-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4128183/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 4, 2010
The Honorable Vince Ryan Opinion No. GA-0773
Harris County Attorney
10 19 Congress, 15th Floor Re: Whether a district clerk may accept assignment
Houston, Texas 77002 a
of defendant's cash bail bond refund as payment
of the defendant's fines and costs (RQ-0819-GA)
Dear Mr. Ryan:
You ask whether a district clerk may accept assignment of a defendant's cash bail bond
refund in payment of the defendant's fines and costs.' If so, you also ask when the clerk may accept
the assignment and list the following possibilities: (1) when the defendant deposits the cash bail
bond; (2) after the defendant's adjudication; or (3) after the court directs the refund to the defendant.
Request Letter at 1. Your questions focus on article 17.02 of the Code of Criminal Procedure, which
authorizes the use of cash bail bonds. TEx. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005).
A bail bond is "a written undertaking binding an accused to appear before the appropriate
authorities to answer a criminal accusation." Melton v. State, 993 S.W.2d 95, 97 (Tex. 1999).
Article 17.02 allows a bail bond to be in the form of a surety bond or cash bond. TEx. CODE CRIM.
PROC. ANN. art. 17.02 (Vernon 2005); Melton, 993 S.W.2d at 97. In lieu of a surety bond, article
17.02 permits the defendant to execute a bond and deposit "current money of the United States" in
the amount of the bond into the court registry. TEx. CODE CRIM. PROC. ANN. art. 17.02 (Vernon
2005). Such a cash deposit by a defendant is known as a "cash bail bond." Melton, 993 S.W.2d at
97.
As you note, the right to receive payment for debt is generally assignable under the common
law. 2 See Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652,655 (Tex. App.-San Antonio
1989, writ denied) (stating that generally, debts are assignable claims). Your question, however, is
not about what rights are assignable under the common law, but rather, you ask about a district
clerk's authority to accept an assignment of a cash bail bond refund to satisfy fines and costs.
Request Letter at 1. Article 17.02, in its provision for cash bail bonds, addresses the responsibilities
of a court's custodian of funds, such as a district clerk:
lSee Request Letter at 1 (available at http://www.texasattomeygeneral.gov).
2See Brief at 1 (attached to Request Letter).
The Honorable Vince Ryan - Page 2 (GA-0773)
[T]he defendant upon execution of such bail bond may deposit with
the custodian of funds of the court in which the prosecution is
pending current money ofthe United States in the amount of the bond
in lieu of having sureties signing the same. Any cash funds deposited
under this Article shall be receipted for by the officer receiving the
same and shall be refunded to the defendant if and when the
defendant complies with the conditions of his bond, and upon order
of the court.
TEX. CODE CRIM. PROC. ANN. art. 17.02 (Vernon 2005). Statutory construction begins with an
examination ofthe statute's language to determine legislative intent. Leland v. Brandal, 257 S. W.3d
204,206 (Tex. 2008). Article 17.02 requires the custodian offunds to (1) receive the cash bond, (2)
provide a receipt for the bond, and (3) once the defendant has complied with the bond's condition
and upon order of the court, refund the cash bond funds ''to the defendant." Id. The word "shall"
in the statute indicates that, where circumstances warrant, the custodian's duty to refund a cash bond
to a defendant is mandatory. See TEx. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) (providing
that, unless context requires otherwise, the word "shall" in a statute "imposes a duty"); City ofAustin
v. S. W Bell Tel. Co., 92 S.W.3d 434,442 (Tex. 2002) (observing that courts generally construe the
word "shall" in statutes as mandatory).
Moreover, in construing article 17.02 we may consider its purpose. See TEx. Gov'T CODE
ANN. § 311.023(1) (Vernon 2005) (authorizing a court, in construing a statute, to consider the
"object sought to be attained"). The primary purpose of a bail bond, including a cash bond, is to
secure the trial of the accused, and "is not a revenue measure intended to be a substitution for a fine."
McConathy v. State, 528 S.W.2d 594, 596 (Tex. erim. App. 1975). Construing article 17.02 as
creating a mandatory duty to refund the cash bond funds according to the statute's terms is consistent
with the purpose ofthe statute, which is to guarantee the defendant's appearance rather than to secure
the payment of fines and costs. Accordingly, a court has construed article 17.02 as creating a
mandatory duty, once the defendant has complied with the bond's conditions, to order a refund of
the cash deposit without regard to the existence of unpaid fines or costs. De Leon v. Pennington, 759
S. W.2d 201,202 (Tex. App.-San Antonio 1988, no writ) (concluding that the court's duty to order
the refund is "ministerial"). Likewise, this office has construed article 17.02' s requirement to refund
as
the cash bond ''to the defendant" mandatory. Tex. Att'y Gen. Op. Nos. JC-0024 (1999) at 3-4
(determining that the statute requires that a cash bail bond be refunded to the defendant rather than
to a third party); JC-0163 (1999) at 1-2 (concluding that once a defendant has complied with the
conditions of his bond, the cash deposited as bail must be refunded to him and may not be withheld
to pay any fines or penalties except as expressly provided by statute). Neither article 17.02 nor any
other statute of which we are aware authorizes assignments as an exception to article 17.02's
requirement to refund cash bail bond funds to the defendant.
Consequently, we conclude that article 17.02 does not authorize a clerk to accept an
assignment made when the defendant makes the cash bond deposit. Nor does it authorize a clerk to
otherwise accept an assignment when it would be contrary to article 17.02's requirement to refund
the funds to the defendant upon compliance with the cash bail bond's terms and upon court order.
The Honorable Vince Ryan - Page 3 (GA-:0773)
Your fmal question is whether the clerk may accept an assignment once the court has ordered
the refund to the defendant. Once the cash bail bond funds have been refunded to the defendant
according to the court's order, article 17.02 does not preclude the clerk from accepting the funds to
pay fines and costs. We do not opine about the form of the transaction or transactions that may be
utilized to refund the deposit to the defendant and to effectuate a transfer of the funds to pay fines
and costs.
The Honorable Vince Ryan - Page 4 (GA-0773)
SUMMARY
Under article 17.02 of the Code of Criminal Procedure, a
district clerk may not accept an assignment of a defendant's cash bail
bond refund in payment of the defendant's fines and costs instead of
refunding the deposited funds to the defendant.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
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/8669416/ | By Judge Jeffrey W. Parker
This matter comes before the Court on a Plea in Bar and Demurrer, which was briefed and argued before the Court. All the issues presented in the Plea and Demurrer were resolved by agreement or orally from the Bench, with the exception of the issue of merger, which was retained by the Court and taken under advisement. The Court is now prepared to rule on this issue.
Background
This matter concerns certain real property located in the Marshall Magisterial District, which was conveyed to the Defendant by Deed of Gift and allegedly subject to an easement in favor of the Virginia Outdoors Foundation and the Piedmont Environmental Council (PEC). The plaintiff in this proceeding recorded a Deed of Gift of Easement made the 26th day of July 2006 immediately prior to the conveyance of the property to Martha Michael Malawer, the Defendant’s predecessor in title. The property is allegedly titled in the name of Piedmont Agriculture Academy. There was a dispute over the legal status of Piedmont Agriculture Academy. This issue is being resolved between counsel and is not determinative of the present matter before the Court. The referenced Deed *117of Easement, which is attached to the Complaint, expresses in great detail the reason behind the easement and the rights and interests retained by the grantor. In the said easement, the PEC is not only the grantor, but also one of the grantees (styled “additional grantee”) together with the Virginia Outdoors Foundation. The subject easement is a negative easement in gross conveyed to protect scenic, natural, agriculture, and open space values of properties in a manner that permits continued private ownership of land while fulfilling public conservation purposes; and further it conveys to the PEC “the right to preserve and protect the conservation values of the property in perpetuity.” (Preamble, p. 3, Deed of Gift of Easement.)
It is the position of the Defendant in this matter that the Grantor had the legal inability under the doctrine of merger to create this easement as the law does not allow a holder of a fee simple interest and an easement to be one and the same person. Fqr the reasons set forth herein, the Defendant’s Plea in Bar will be overruled on this issue.
Discussion
A basic common law rule of real property deed construction is that existing easements are extinguished by operation of law if ownership of the dominant and servient estates becomes united in one person. Read v. Jones, 152 Va. 226, 231, 146 S.E. 263 (1929).
Despite the fact that the Read case is over eighty years old, it is still good law, as demonstrated by Davis v. Henning, 250 Va. 271, 462 S.E.2d 106 (1995), which held that, when the holder of a tract of land with a right of way acquires a servient estate, the easements are merged and extinguished. However, it is interesting to observe in the Davis case that, although the express easement was extinguished, an implied easement of necessity was found to exist in favor of the dominant tract
This holding demonstrates, in the Court’s view, the common sense approach associated with this type of analysis. In the Read Case, the Supreme Court held that:
Easements are, by their nature, rights possessed by the owner of one piece of land in another piece of land belonging to a different person; if, therefore, the seisin of the two pieces is united in one owner, the right must necessarily cease to be an *118easement, for it becomes one of the rights of property to which all owners of land are entitled.
152 Va. at 232 (emphasis added).
This analysis stands in contrast to what occurred in the situation in question. Here, there never was the relationship of a servient to a dominant tract. The clear intent of the parties was the creation of a detailed conservation easement in perpetuity, so as to protect the scenic value of the real estate for the general public. This contrasts with a scenario in which, some years later, the owner of dominant and servient tracts became one and the same, thus eliminating the need or purpose for the easement
These deeds were recorded at virtually the same time with the clear intent of the grantor to retain the right to enforce the scenic easement for a public purpose. Further, this easement was recorded jointly to both the PEC and the Virginia Outdoors Foundation. While the PEC is the primary enforcer of this easement, it was not the sole party receiving the benefit of this easement. More significantly and most importantly, this type of easement in gross is a recent creature of the law, created statutorily in an effort to facilitate this type of conservation. Under the Virginia Open Space Land Act of 1966, Va. Code, Chapter 17, Title 10.1, et seq., the Virginia Conservation Act, Va. Code § 10.1-1009 et seq., The Virginia Outdoors Foundation, as a grantee, was authorized to hold these particular easements in conformity with Chapter 18, Title 10.1, of the Virginia Code.
Unlike right of way easements that are merged as demonstrated in the Read case, a conservation easement is a “a non-possessory interest of a holder in real property, whether easement appurtenant or in gross. ...” a purpose of which is to preserve “the historical, architectural, and archeological aspects of real property.” Va. Code § 10.1-1009. “An easement in gross is an easement with a servient estate, but no dominant estate. It is an easement personal to the grantee.” Vepco v. Northern Va. Regional Park Auth., 270 Va. 309, 316, 618 S.E.2d 323 (2005).
It is true that easements in gross were previously disfavored in the law, but, since the enactment of Va. Code § 55-6 recognizing easements in gross, whether affirmative or negative, “[i]t is self-evident that this statute materially changed the common law and recognized interests in or claims to real estate beyond those traditionally recognized at common law.” United States v. Blackman, 270 Va. 68, 80, 613 S.E.2d 442 (2005). The Blackman case provides an excellent discussion of the history of easements in gross and conservation easements in particular. For an easement to be treated as being in gross, the deed or other instrument *119granting the easement must plainly manifest that the parties so intended. 270 Va. at 77. The deed in question goes into great detail, over three and a half pages long, setting forth this very intention.
It is evident from the discussion in Blackman that such easements are not subject to the typical common law analysis of merger, as would be appropriate to rights of way between two adjoining tracts. In the Davis case, supra, cited by the Defendant, the Court stated “In construing deeds, it is the duty of the Court to ascertain the intention of the parties gathered from the language used and the general purpose and scope of the instrument in the light of surrounding circumstances.” 250 Va. at 274. In light of the language used and the circumstances of this situation, it is overwhelming clear that the intention of the parties was to create a conservation easement in the described parcel, subject to the conditions contained therein.
While the construction and interpretation of these conditions remain to be determined by the Court, the validity and applicability of the easement to this parcel is evident. Therefore, the Court denies the Plea in Bar and will direct the Defendant to fully answer the pleading within twenty-one days from the entry of the Order overruling the Demurrer. | 01-03-2023 | 11-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4128185/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 4,2010
The Honorable Joe Shannon Jr. Opinion No. GA-0772
Tarrant County Criminal District Attorney
401 West Belknap Re: Authority of the Texas Youth Commission to
Fort Worth, Texas 76196 require certain juveniles to register as sex offenders
(RQ-0760-GA)
Dear Mr. Shannon:
Your predecessor as Tarrant County Criminal District Attorney asked whether a rule of the
Texas Youth Commission (TYC) requiring the registration of certain juveniles as sex offenders is
inconsistent with Texas Code of Criminal Procedure article 62.352, which authorizes a court to defer
registration of a juvenile as a sex offender. l TEx. CODE CRIM. PROC. ANN. art. 62.352 (Vernon
2006). In juvenile cases involving an offense for which registration as a sex offender is required,
the court may conduct a hearing to determine whether the interests of the public require registration.
See id. art. 62.351(a). After the hearing, ajuvenile court may under certain circumstances enter an
order "deferring decision on requiring registration under this chapter until the respondent has
completed treatment for the respondent's sexual offense ... while committed to the Texas Youth
Commission." Id. art. 62.352(b)(1).
We observe as a threshold matter that the attorney general will not issue an opinion
addressing the validity of a court order. See Tex. Att 'y Gen. Op. Nos. GA-0182 (2004) at 3, JC-0346
(2001) at 4,0-1847 (1940) at 2. Accordingly, our discussion of the district attorney's question will
not address the validity of an extant court order that defers a decision on requiring registration. 2
The TYC rule on sex offender registration provides as follows:
(1) If the duty to register has been deferred, the PSW
[primary service worker] will send written notice certifying
completion of treatment for the sex offense to the court and
prosecuting attorney (that adjudicated the youth for the sex offense)
IRequest Letter at 1 (available at http://www.texasattomeygeneral.gov).
2See State Bar of Texas, Juvenile Law Section, "Order Deferring Sex Offender Registration" (providing that
the juvenile respondent shall not register as a sex offender pursuant to Code to Criminal Procedure chapter 62 until (1)
respondent's 18th birthday, or (2) further order of the court, whichever event occurs first), available at
http://www.juvenilelaw.org/Fonns.htm (last visited Apr. 23, 2010).
The Honorable Joe Shannon Jr. - Page 2 (GA-0772)
within ten (1 0) days following verification ofcompletion oftreatment
for the sex offense.
(2) If a youth successfully completes treatment for the sex
offense the youth shall not be required to register as a sex offender
unless additional orders are received from the court.
(3) If the duty to register has been deferred and the youth is
discharged from TYC without successfully completing treatment for
sex offense, the PSW shall register the youth as required in subsection
(f) of this policy.
37 TEx. ADMIN. CODE § 87.85(g) (2009).
The request letter suggests that section 87.85(g)(3) is inconsistent with article 62.352(c). See
Request Letter at 2. However, article 62.053, Code of Criminal Procedure, is also relevant to the
validity of this rule. 3 See TEx. CODE CRIM. PROC. ANN. art. 62.053(b) 01emon Supp. 2009). Article
62.053(b) expressly requires Tye to register persons subject to registration as sex offenders on the
seventh day before their release. 4 Id. art. 62.053(b). We seek to read article 62.352(c) in harmony
with article 62.053(b). See La Sara Grain Co. v. First Nat'l Bank o/Mercedes, 673 S. W.2d 558,565
(Tex. 1984) (courts are to construe statute to harmonize with other relevant laws, if possible).
Article 62.352 provides in part:
(b) After a hearing under Article 62.351 or under a plea
agreement described by Article 62.355(b), the juvenile court may
enter an order:
(1) deferring decision on requiring registration under
this chapter until the respondent has completed treatment for the
respondent's sexual offense as a condition of probation or while
committed to the Texas Youth Commission; or
3The brief from TYC raises this section. See TYC Briefat 1.
4Code of Criminal Procedure article 62.053(b) provides as follows:
(b) On the seventh day before the date on which a person who will be subject to
registration under this chapter is due to be released from a penal institution, or on
receipt of notice by a penal institution that a person who will be subject to
registration under this chapter is due to be released in less than seven days, an
official of the penal institution shall send the person's completed registration form
and numeric risk level to the department and to:
[the appropriate law enforcement agency].
TEx. CODECRIM. PROC. ANN. art. 62.053(b) (Vernon Supp. 2009).
The Honorable Joe Shannon Jr. - Page 3 (GA-0772)
(2) [providing for non-public registration] ... ;
(c) If the court enters an order described by Subsection
(b)(1), the court retains discretion and jurisdiction to require, or
exempt the respondent from, registration under this chapter at any
time during the treatment or on 'the successful or unsuccessful
completion of treatment, ,except that during the period of deferral,
registration may not be required. Following successful completion of
treatment, the respondent is exempted from registration under this
chapter unless a hearing under this subchapter is held on motion of
the state ....
TEx. CODE CRIM. PROC. ANN. art. 62.352(b)-{c) (Vernon 2006).
Article 62.352(c) provides an outcome for a respondent who successfully completes
treatment, but it is silent as to a respondent who does not successfully complete treatment. See id
art. 62.352(c).5 Section 87.85(g)(3) addresses a situation where a respondent fails to successfully
complete treatment. 37 TEx. ADMIN. CODE § 87.85(g)(3) (2009). It provides that "[i]fthe duty to
register has been deferred and the youth is discharged from TYC without successfully completing
treatment for sex offense, the PSW shall register the youth as required in subsection (t) of this
policy." ld. Under subsection (t), a respondent is subject to full registration when the respondent
"has a reportable adjUdication and the duty to register has not been excused or deferred." ld. §
87.85(t). TYC has a duty under article 62.053(a) to register persons "subject to registration under
[chapter 62]" as sex offenders before they are released. See TEx. CODE CRIM. PROC. ANN. art.
62.053(a) (Vernon Supp. 2009). Section 87.85(g)(3) implements the TYC duty to register persons
subject to registration under chapter 62.
However, in cases where a court order exempts a respondent from registration or defers a
decision on registration beyond the respondent's release from TYC, for example, where registration
is deferred until further order of the court, the respondent is not "a person who will be subject to
registration" within the meaning of article 62.053(b). ld. art.62.053(b).6 Likewise, section 87.85(t)
does not apply when the duty to register has been excused or deferred beyond the release date. See
37 TEx. ADMIN. CODE § 87.85(t) (2009). Because volume 37, section 87.85(g)(3) of the Texas
Administrative Code has valid applications when a court order has not exempted a respondent from
registration or deferred a decision on registration beyond the respondent's release date, we conclude
that a court would likely hold that section 87.85(g)(3) is not facially inconsistent with article 62.352.
SSection 87.85(g)(1) provides for notice certifying the successful or unsuccessful completion of treatment to
the court and prosecuting attorney that adjudicated the youth for the sex offense. See 37 TEX. ADMIN. CODE §
87 .85 (g)(1 ) (2009); see also Request Letter at 2, TYC Brief at 2.
6See also TEx. CODE CRIM. PROC. ANN. art. 62.353(ll) (Vernon 2006) (person registered as a sex offender for
delinquent conduct may seek exemption or nonpublic registration).
The Honorable Joe Shannon Jr. - Page~ (GA-0772)
SUMMARY
Pursuant to Code of Criminal Procedure article 62.352, a
juvenile court may defer a decision on sex offender registration of
certain juveniles pending treatment while in a Texas Youth
Commission facility. Following successful completion of treatment,
a juvenile is exempted from registration unless a hearing is held on
motion of the State.
Code of Criminal Procedure article 62.053 requires the Texas
Youth Commission to register juveniles as sex offenders seven days
before their release if they are subject to registration. Ajuvenile who
has not successfully completed treatment is subject to registration
absent a court order exempting him from registration or deferring a
decision on the respondent's registration beyond the respondent's
release date. Because volume 37, section 87.85(g)(3) of the Texas
Administrative Code has valid applications, we conclude that a court
would likely hold that section 87.85(g)(3) is not facially inconsistent
with article 62.352.
Very truly yours,
~
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128229/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 20,2009
Mr. Sidney "Buck" LaQuey Opinion No. GA-0745
Grimes County Auditor
Post Office Box 510 Re: Whether a justice of the peace may defer the
Anderson, Texas 77830 adjudication of a charge of violating the Parks and
Wildlife Code and impose a special expense without
assessing a fme and, if so, whether any portion of the
special expense must be remitted to the Parks and
Wildlife Department (RQ-0802-GA)
Dear Mr. LaQuey:
You write to suggest a possible conflict between article 45.051 of the Code of Criminal
Procedure and section 12.107 of the Parks and Wildlife Code. 1 You indicate concern about
complying with section 12.107 and ask whether a justice of the peace may defer the adjudication of
a charge of violating the Parks and Wildlife Code and may impose a special expense without
assessing a fine and, if so, whether any portion of the special expense must be remitted to the Parks
and Wildlife Department (the "Department,,).2
Article 45.051 authorizes a justice of the peace to defer proceedings without entering an
adjudication of guilt and to place a defendant on probation under specified circumstances. See TEx.
CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009); see also id art. 45.002 (Vernon 2006)
(providing that "[c]riminal proceedings in the justice and municipal courts shall be conducted in
accordance" with chapter 45). A justice of the peace, "[i]n issuing the order of deferral, ... may
impose a special expense fee on the defendant." TEx. CODE CRIM. PROC. ANN. art. 45.051(a)
(Vernon Supp. 2009). Section 12.107 requires a "justice of the peace, clerk of any court, or any
other officer of the state who receives a fine imposed by a court for a violation of this [Parks &
Wildlife] code ... [to] send the fine to the [D]epartment" in certain specified percentages. TEx.
PARKS & WILD. CODE ANN. § 12.107 (Vernon 2002).
You suggest that section 12.1 07's requirement to send a fine to the Department precludes a
justice of the peace from deferring proceedings under article 45.051 and imposing a special expense
fully retained by the county. See Request Letter at 1-2 (citing Tex. Att'y Gen. Op. No. JM-526
(1986». We address your query in two parts. First, we consider a justice of the peace's authority
ISee Request Letter at 1-2 (May 26,2009) (available at http://www.texasattomeygeneral.gov).
2See id; Supplemental Request Letter at 1 (June 1,2009) (available at http://www.texasattomeygeneral.gov).
Mr. Sidney "Buck" LaQuey - Page 2 (GA-0745)
to defer proceedings under article 45.051 when the charge is one of violating the Parks and Wildlife
Code. Second, we consider issues with respect to the special expense.
As we examine article 45.051 and section 12.107, we are mindful that in construing statutes
courts seek first to determine the Legislature's intent. See Lelandv. Brandel, 257 S.W.3d 204,206
(Tex. 2008). Courts look to the statute's plain language under the assumption that the Legislature
meant what it said and that its words are the surest guide to its intent. See Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). Courts also seek to harmonize statutes
when possible. See La Sara Grain Co. v. First Nat 'I Bank ofMercedes, 673 S.W.2d 558, 565 (Tex.
1984).
Section 12.107 does not affirmatively require that a fine be imposed for a violation of the
Parks and Wildlife Code. See TEx. PARKS & WILD. CODE ANN. § 12~107 (Vernon 2002). Nordoes
it expressly limit the jurisdiction of justice courts or prohibit a justice of the peace from exercising
the authority in article 45.051 to defer proceedings. See id Nothing in the plain language of section
12.107 indicates that the Legislature intended to preclude a justice of the peace from deferring
proceedings under article 45.051. Moreover, article 45.051 applies to all misdemeanor cases
punishable by fine only and does not except misdemeanor cases involving violations of the Parks
and Wildlife Code. See TEX. CODE CRlM. PROC. ANN. art. 45.05 i (a) (Vernon SUpp. 2009). The two
provisions do not, as you suggest, conflict. Instead, they may be harmonized such that section
12.107 is understood to require that the specified percentage be sent to the Department in only those
instances where a fine is actually imposed by a court. We therefore conclude that section 12.107
does not preclude a justice of the peace from exercising the authority in article 45.051 to defer
proceedings of a charge of violating the Parks and Wildlife Code.
We next consider your questions involving the special expense. You suggest that subarticle
45.051(c)'s language "not to exceed the amount of the fine assessed" means that a "fine should be
imposed in addition to the special expense." Request Letter at 2. The Eighty-first Legislature
amended article 45.051 and removed the language giving rise to your concern. See Act of May 29,
2009, 81st Leg., R.S., ch. 1121, § 2, 2009 Tex. Gen. Laws 3091, 3092 (codified as an amendment
of TEx. CODE CRlM. PROC. ANN. art. 45.051). Article 45.051 now provides that "[i]n issuing the
order of deferral, the judge may impose a special expense fee on the defendant in an amount not to
exceed the amount of the fine that could be imposed on the defendant as punishment for the
offense." TEx. CODE CRlM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009). The amended article
45.051 also provides that the "judge may elect not to impose the special expense fee for good cause
shown by the defendant." Id By contrast, the fine serves as the conviction and is imposed only
when the defendant cannot show successful compliance with the article 45.051 conditions. Id. art.
45.051(d). We see nothing in the language of the amended article 45.051 that requires a fine to be
imposed in addition to the special expense fee. 3
3As a practical matter, if the judge orders a special expense fee as part of a probation but then ultimately imposes
a fme because the defendant is not successful in complying with the imposed conditions, a defendant would not pay both
amounts because "the judge shall require that the amount ofthe special expense fee be credited toward the payment of
the amount of the fme." TEX. CODE CRIM. PROC. ANN. art. 45.051(a) (Vernon Supp. 2009).
Mr. Sidney "Buck" LaQuey - Page 3 (GA-0745)
With respect to whether any portion of a special expense fee must be sent to the Department,
section 12.017 expressly requires only that a percentage of a "fine imposed by a court for a violation"
of the Parks and Wildlife Code be sent to the Department. TEx. PARKS & WILD. CODE ANN.
§ 12.1 07(a) (Vernon 2002). It does not apply to all fees and costs that may be collected in a criminal
proceeding. See id. Under article 45.051, a "special expense fee" is not a "fme." Compare TEx.
CODE CRIM. PROC. ANN. art. 45.051(a), with id. art. 45.051(d) (Vernon Supp. 2009); see also
Guarantee Mut. Life Ins. Co. v. Harrison, 358 S. W.2d 404,406-07 (Tex. Civ. App.-Austin 1962,
writ ref d n.r.e.) (recognizing that when the Legislature uses different words, it is presumed to have
intended different meanings). Moreover, unlike a fine, a special expense fee imposed under article
45.051 does not constitute a conviction for a violation of the Parks and Wildlife Code. See TEx..
PARKS & WILD. CODE ANN. § 12.107(a) (Vernon 2002) (applying to a fine "imposed by a court for
a violation of [the Parks and Wildlife] [C]ode"), TEX. CODE CRIM. PROC. ANN. art. 45.051(d)
(Vernon Supp. 2009) (providing that an imposed fine constitutes a conviction). Accordingly, we
conclude that the Legislature has not required that any portion of a special expense fee imposed
under article 45.051(a) must be sent to the Department.
Mr. Sidney "Buck" LaQuey - Page 4 (GA-0745)
SUMMARY
A justice of the peace may defer the adjudication of a charge
of violating the Parks and Wildlife Code and impose a special
expense fee without assessing a fine. A special expense fee imposed
under article 45.051, Code of Criminal Procedure, is not a fine under
section 12.107, Parks and Wildlife Code, that must be sent to the
Parks and Wildlife Department.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128172/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 10,2010
The Honorable Glenn Hegar Opinion No. GA-0780
Chair, Sunset Advisory Commission
Texas State Senate Re: Application and constitutionality of section
Post Office Box 12068 5.017(b) of the Texas Property Code with respectto
Austin, Texas 78711-2068 restrictive covenants that were in existence and
recorded in a county's public records prior to the
statute's effective date (RQ-0843-GA)
Dear Senator Hegar:
Section 5.017 of the Texas Property Code prohibits and declares void deed restrictions and
other covenants running with the land that require certain transfer fees. TEx. PROP. CODE ANN. §
5.017(b) (Vernon Supp. 2009). You ask first whether, as a matter of statutory construction, section
5.017(b) applies "to restrictive covenants' ... which were recorded and in existence prior to its
effective date. ,,2 If so, you also ask whether "Section 5.0 17(b) as applied to pre-existing, recorded
restrictive covenants ... violate[s1 the prohibition on retroactive laws and laws impairing the
obligation of contracts contained in Article I, Section 16 of the Texas Constitution." Request Letter
at 3.
While you state your questions separately, a statute's construction and its constitutionality
are interrelated issues. When considering a statute challenged under article I, section 16, courts
begin with the presumption that the statute is constitutional and, therefore, attempt "to avoid
lUnder the Property Code, a "restrictive covenant" includes "any covenant, condition, or restriction contained
in a dedicatory instrument." TEx. PROP. CODE ANN. § 202.001(4) (Vernon 2007). A "dedicatory instrument" is a
"governing instrument covering the establishment, maintenance, and operation of a residential subdivision, planned unit
development, condominium or townhouse regime, or any similar planned development." Id. § 202.001(1).
'See Request Letter at 3 (available at http://www.texasattorneygeneral.gov) (footnote added). Although you
ask broadly about section 5.017(b)'s application to restrictive covenants in general, you also ask about the section's
application to a specific deed restriction that requires owners of property in the Weston Lakes residential development
to acquire and maintain a membership in the Weston Lakes country club. !d. at 1-2. However, section 5.017(b)'s
application to a specific deed restriction cannot be determined without first construing the deed restriction, a function
that is beyond the scope of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0594 (2008) at 4 n.5
(observing that because "[i]nstruments such as dedications and restrictive covenants are subject to the general rules of
contract construction ... it may not be possible to construe them in an attorney general opinion"). Accordingly, we
confme our consideration to your broader question as it is stated above. See Tex. Att'y Gen. Op. No. GA-0l76 (2004)
at 2 (stating that this office generally does not construe the terms of a particular contract but will address applicable
general legal principles).
The Honorable Glenn Hegar - Page 2 (GA-0780)
constitutional problems if possible." Brooks v. Northglen Ass'n, 141 S.W.3d 158, 169-70 (Tex.
2004) (construing a homeowner association late fee statute in connection with an article I, section
16 challenge). Article I, section 16 prohibits the Legislature from making a "retroactive law, or any
law impairing the obligation of contracts." TEx. CONST. art. I, § 16. In general, a statute is
unconstitutionally retroactive "ifit takes away or impairs vested rights acquired under existing law."
City of Tyler v. Likes, 962 S.W.2d 489,502 (Tex. 1997).3 Also, under article I, section 16, a
contractual "obligation is impaired when a statute is enacted that releases a part of [anJ obligation
or to any extent or degree amounts to a material change or modifies it." Price Pfister, Inc. v. Moore
& Kimmey, Inc., 48 S.W.3d 341, 356 (Tex. App.-Houston [14th Dist.J2001, pet. denied).
Whether a statute operates retrospectively depends on the Legislature's intent. Deacon v.
City of Euless, 405 S.W.2d 59, 61 (Tex. 1966). However, "[rJetroactive statutes are generally
regarded with disfavor." Hutchings v. Slemons, 174 S.W.2d 487, 490 (Tex. 1943).4 "Statutes are
only applied retroactively if the statutory language indicates that the Legislature intended that the
statute be retroactive." In re MC.C., 187 S.W.3d 383, 384 (Tex. 2006).5 The Code Construction
Act instructs that "[aJ statute is presumed to be prospective in its operation unless expressly made
retrospective." TEx. GOV'T CODE ANN. § 311.022 (Vemon 2005) (emphasis added). Any doubts
about the intended operation of a statute are to be resolved against retroactive application. Ex parte
Abell, 613 S.W.2d 255, 258 (Tex. 1981); accord City ofHouston, 196 S.W.3d at 283 n.15.
With these principles in mind, we tum to subsection 5.017(b) of the Property Code, which
provides:
A deed restriction or other covenant running with the land applicable
to the conveyance of residential real property that requires a
transferee of residential real property or the transferee's heirs,
successors, or assigus to pay a declarant or other person imposing the
deed restriction or covenant on the property or a third party
3Detennining whether a statute has retroactive effects is but one step in the analysis of a statute's
constitutionality under article I, section 16, however. See Subaru ofAm., Inc. v. DavidMcDavidNissan, Inc., 84 S. W.3d
212,219 (Tex. 2002). "A retroactive statute only violates our Constitution if, when applied, it takes away or impairs
vested rights acquired under existing law." !d. Furthennore, the constitutionality of a retroactive statute may depend
on other considerations, such as whether the statute is a valid exercise ofthe state's police powers. See, e.g., Barshop
v. Medina County Underground Waler Conservation Dist., 925 S.W.2d 618,633-35 (Tex. 1996) (stating that "[aj valid
exercise ofthe police power by the Legislature to safeguard the public safety and welfare can prevail over a fmding that
a law is unconstitutionally retroactive," and that "the contract clause may yield to statutes which are necessary to
safeguard the public safety and welfare").
4See also City of Houston v. Houston Firefighters' Relief & Ret. Fund, 196 S.W.3d 271, 283 n.15 (Tex.
App.-Houston [1st Dist.j2006, no pet.) (noting ''that 'Texas law militates strongly against the retroactive application
of laws"') (quoting Houston Indep. Sch. Dist. v. Houston Chronicle PubZ'g Co., 798 S.W.2d 580, 585 (Tex.
App.-Houston [1st Dist.jI990, writ denied)).
'The general presumption that a statute operates prospectively does not apply for a statute that is merely
procedural or remedial. State v. Fid. & Deposit Co. ofMd., 223 S.W.3d 309, 312 n.2 (Tex. 2007).
The Honorable Glenn Hegar - Page 3 (GA-0780)
designated by a transferor ofthe property a fee in connection with a
future transfer of the property is prohibited. A deed restriction or
other covenant running with the land that violates this section or a
lien purporting to encumber the land to secure a right under a deed
restriction or other covenant running with the land that violates this
section is void and unenforceable. For purposes of this section, a
conveyance of real property includes a conveyance or other transfer
of an interest or estate in residential real property.
TEx. PROP. CODE ANN. § 5.0 17(b) (Vernon Supp. 2009). Subsection (c) creates exceptions for fees
that are payable to certain property owners' associations, section 501(c)(3) entities, and
governmental entities. ld. § 5.017(c).
Section 5.017(b) broadly prohibits deed restrictions requiring certain transfer fees. 6 The
section does not state that it applies to deed restrictions in existence prior to the effective date of the
statute, rendering them void. Nor does the section's transition provision indicate that the statute
operates retroactively to render existing and recorded restrictive covenants void. The transition
clause for section 5.017 states:
The change in law made by this Act applies only to a transfer of
property that occurs or a contract entered into on or after the effective
date of this Act. A transfer of property that occurs or a contract
entered into before the effective date of this Act is governed by the
law in effect immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
Act of May 27, 2007, 80th Leg., R.S., ch. 1056, § 2, 2007 Tex. Gen. Laws 3654, 3655. The first
sentence of the transition clause states that the statute applies to a property transfer that occurs or a
contract entered into after the effective date, but does not address deed restrictions existing and
recorded prior to the statute's effective date. ld. The second sentence preserves the law in effect for
a contract entered into prior to the statute's effective date. A deed restriction or restrictive covenant
is a type of contract. See Tien Tao Ass'n v. Kingsbridge Park Cmty. Ass'n, 953 S.W.2d 525, 533
(Tex. App.-Houston [1st Dist.] 1997, no pet.) (stating that particular "deed restrictions comprise
a contract between the homeowner and the neighborhood association"). Thus, the transition clause
appears to preserve the law in effect for a deed restriction established prior to the statute's effective
date. 7
'While you do not raise them in your request, we are aware that there are additional questions about the proper
construction ofsectiou 5.017(b). We confme our consideration to the questions as posed by you and, therefore, do not
address any such collateral questions. Tex. Att'y Gen. Op. No. GA-0762 (20 I 0) at 4 n.5 (attorney general opinions are
limited to the specific questions asked by an authorized requestor). Nothing in this opinion should be interpreted to limit
the rights of any party to pursue claims for violations of section 5.017.
'The transition clause appears in House Bill 2207 ofthe 80th Legislature, regular session, which added sections
5.016 and 5.017 to the Property Code. Act of May 27, 2007, 80th Leg., R.S., ch. 1056, § 2, 2007 Tex. Gen. Laws 3654,
3655.
The Honorable Glenn Hegar - Page 4 (GA-0780)
Neither section 5.017 nor the transition clause reveals legislative intent, express or otherwise,
that would overcome the presumption that the statute is intended to operate prospectively.
Consequently, we conclude that section 5.0 17(b) of the Property Code does not apply to restrictive
covenants that were in existence and recorded prior to the statute's effective date. Because we
conclude that section 5.017(b) operates prospectively only, we do not reach your second question.
The Honorable Glenn Hegar - Page 5 (GA-0780)
SUMMARY
Section 5.017(b) of the Property Code does not apply to
restrictive covenants that were in existence and recorded prior to the
statute's effective date.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
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/4128173/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 26, 2010
The Honorable Joe Deshotel Opinion No. GA-0779
Chair, Committee on Business & Industry
Texas House of Representatives Re: Authority of Spindletop Mental Health
Post Office Box 2910 Mental Retardation Services to sell or lease
Austin, Texas 78768-2910 certain real property under House Bill 1759 and
House Bill 1023 (RQ-0845-GA)
Dear Representative Deshotel:
You seek our opinion about the authority of Spindletop Mental Health Mental Retardation
Services ("Spindletop") to sell or lease certain real property under two recent legislative enactments. I
House Bill 1759, enacted by the Eightieth Legislature, authorizes the transfer ofa parcel of
property from the Health and Human Services Commission, the Department of State Health
Services, or the Department of Aging and Disability Services to Spindletop for nonmonetary
consideration? House Bill 1759 provides that the consideration for the land transfer
shall be in the form of an agreement between the parties that requires
Spindletop MHMR Services to use the property in a manner that
primarily promotes a public purpose ofthe state by using the property
to provide community-based mental health or mental retardation
services.
House Bill 1759, supra note 2, § l(c), at 3589. House Bill 1023, enacted by the Eighty-first
Legislature, authorizes an agreement between the parties to be amended to expand the uses of the
transferred property.3 Under such an amended agreement, Spindletop is to "use the property in a
manner that primarily promotes a public purpose of the state by using the property to provide
community-based physical health, health-related, mental health, or mental retardation services."
ISee Request Letter at 1 (available at http://www.texasattomeygeneral.gov).
'See Act of May 23, 2007, 80th Leg., R.S., ch. 1036, § 1,2007 Tex. Gen. Laws 3589, 3589-90 [hereinafter
House Bill 1759].
'See Act of May 21, 2009, 81stLeg., R.S., ch. 339, § 1,2009 Tex. Gen. Laws 873, 873 [hereinafter House Bill
1023].
The Honorable Joe Deshotel - Page 2 (GA-0779)
House Bill 1023, supra note 3, § l(c), at 873. Both House Bill 1759 and House Bill 1023 provide
that in the event the property is not used by Spindletop in the manner specified for more than 180
continuous days, ownership of the property automatically reverts to the state entity that transferred
the property to Spindletop. See House Bill 1759, supra note 2, § l(c), at 3589; House Bill 1023,
supra note 3, § l(c-l), at 873.
You tell us that Spindletop operates facilities on only a portion of the property and "desires
to either sell or execute a long-term lease of the [property] or a portion thereof and use the proceeds
[therefrom] to provide community-based physical health, health-related, mental health, or mental
retardation services." Request Letter at 2. You claim that the phrase "use the property" is
ambiguous and could be construed to include authority to sell or lease the property and apply the
proceeds to the specified services or it could be construed to require Spindletop to maintain
possession of all portions of the property. Id. Thus, you ask whether Spindletop is authorized, under
House Bill 1759 and House Bill 1023, to sell or to execute a long-term lease of a portion of the
transferred property. See id. at 1, 3. We consider Spindletop' s authority under only House Bill 1759
and House Bill 1023.
The primary objective when construing a legislative enactment is to give effect to the
Legislature's intent. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009). We look fust to the
enactment's language in attempting to understand that intent. Lelandv. Brandal, 257 S.W.3d 204,
206 (Tex. 2008). We also consider the enactment as a whole rather than its isolated provisions.
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
Though the term "use" by itself has numerous definitions and in some contexts could be
construed broadly as you suggest, the mere fact that the term is capable of different meanings does
not make the two bills ambiguous. SeeDeLeonv. State, 294 S.W.3d 742, 747 (Tex. App.-Amarillo
2009, pet. ref d) ("A statute is ambiguous when it is capable of being understood by reasonably well-
informed persons in two or more different senses."). For the following reasons, we believe House
Bill 1759 and House Bill 1023 are capable of being understood by a reasonably well-informed
person in only one sense--requiring Spindletop to maintain possession of the property for the
specified purposes.
Neither bill contains an express grant of any authority to Spindletop, much less authority for
Spindletop to partition or alienate part of the property by sale or lease. See House Bill 1759, supra
note 2, § 1, at 3589-90; House Bill 1023, supra note 3, § 1, at 873. Considering the bills as a whole,
the phrase about which you inquire is part of a broader statement about the state's public purpose
being achieved by the transfer of the property. See House Bill 1759, supra note 2, § l(c), at 3589
("to use the property in a manner that primarily promotes a public purpose ofthe state by using the
property" as specified) (emphasis added); accord House Bill 1023, supra note 3, § 1(c), at 873. This
legislative statement about the transfer of property serving the public purpose is more likely a
statement designed to ensure that the transaction satisfies constitutional restraints on the state
regarding public gifts or grants than it is an indirect grant of authority to Spindletop to alienate the
property. See TEx. CONST. art. III, § 51 (prohibiting the granting of public money to an individual);
see also Bailey v. State, 15 S.W.3d 622, 626 (Tex. App.-Dallas 2000, no pet.) (characterizing
The Honorable Joe Deshotel - Page 3 (GA-0779)
section 51 as a provision intended to "prevent the application of public funds to private purposes"
and explaining that "[aJ transfer of funds for a public purpose, with a clear public benefit received
in return, does not amount to a grant of public funds in violation of article III, section 51 "). When
the Legislature wants to authorize an entity to engage in such a realty transaction, it knows how to
do so. See FM Props. Operating Co. v. City ofAustin, 22 S.W.3d 868,884-85 (Tex. 2000) (relying
on the principle of statutory construction that the Legislature knows how to enact law effectuating
its intent); cf TEx. Loc. GOy'TCODEANN. § 51.015(a) (Vernon 2008) (authorizing Type A general-
law municipality to "take, hold, purchase, lease, grant, or convey property located in or outside the
municipality"); TEx. WATER CODE ANN. §§ 49.225 (Vernon 2008) (authorizing water district subject
to chapter 49 to "lease any of its property, real or personal, to any person"), 49.226 (providing for
sale or exchange of property by chapter 49 water district); TEx. GOy'T CODE ANN. § 496.0021(a)
(Vernon Supp. 2009) (authorizing Board of Criminal Justice to "sell state-owned real property").
In addition, the very purpose of these two bills-to effectuate the transfer of property to
Spindletop-indicates that the Legislature intended Spindletop to physically utilize the property for
the named purposes rather than use the proceeds from a sale or lease of the property for the specified
purposes. See House Bill 1759, supra note 2, § I, at 3589; House Bill 1023, supra note 3, § 1,at
873; see also SENATE RESEARCH CENTER, BILL ANALYSIS, Tex. H.B. 1759, 80th Leg., R.S., at 1
(2007) (indicating that a prior bill led to the leasing of the former Beaumont State Center to
Spindletop but that "Spindletop wanted to establish ownership but did not have the funds to purchase
the former center"); HOUSE RESEARCH ORGANIZATION, BILL ANALYSIS, Tex. H.B. 1023, 81 st Leg.,
R.S., at 2 (2009) (explaining that bill would expand allowable uses of the property transferred to
Spindletop). In addition, the fact that the State has retained a reversionary interest to ensure that the
property is utilized for the specified purposes by Spindletop supports the view that in adopting the
two bills the Legislature did not contemplate sale or lease of the property by Spindletop. See House
Bill 1759, supra note 2, § I, at 3589; House Bill 1023, supra note 3, § 1, at 873.
We conclude that under House Bill 1759 or House Bill 1023 Spindletop does not have
authority to sell or lease a portion of the subject real property.
The Honorable Joe Deshotel - Page 4 (GA-0779)
SUMMARY
Spindletop Mental Health and Mental Retardation Services
does not, under House Bill 1759 or House Bill 1023, have authority
to sell or lease the subject real property.
Attorney
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128187/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-1201
of :
: April 25, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE MICHAEL C. FITZPATRICK, TRINITY COUNTY COUNSEL, has
requested an opinion on the following questions:
1. May a peace officer arrest a motorist who has committed an infraction (e.g., driving to
the left of double parallel unbroken lines or traveling in excess of the posted speed limit) if no accident,
traffic obstruction, or other event has occurred?
2. May a peace officer issue a notice to appear in court to a motorist who has committed an
infraction?
3. If a motorist is stopped for committing an infraction and refuses to sign the notice to
appear in court issued by the peace officer, may the officer take the motorist into custody?
4. Is a magistrate required to be on duty in a county at all times?
CONCLUSIONS
1. A peace officer may arrest a motorist who has committed an infraction (e.g., driving to
the left of double parallel unbroken lines or traveling in excess of the posted speed limit) even though no
accident, traffic obstruction, or other event has occurred.
2. A peace officer may issue a notice to appear in court to a motorist who has committed
an infraction.
3. If a motorist is stopped for committing an infraction and refuses to sign the notice to
appear in court issued by the peace officer, the officer must take the motorist into custody.
4. A magistrate is not required to be on duty in a county at all times but must at all times
be reasonably available on call to perform official duties.
ANALYSIS
1 of 6
ANALYSIS
The four questions presented for resolution concern infractions committed by motorists on
the highways of this state. An "infraction" is a public offense other than a felony or misdemeanor. (Pen.
Code, § 16.) Penal Code section 17, subdivision (a) states: "A felony is a crime which is punishable by death
or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those
offenses that are classified as infractions." Penal Code section 1916 provides:
"An infraction is not punishable by imprisonment. A person charged with an
infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be
entitled to have the public defender or other counsel appointed at public expense to represent
him or her unless he or she is arrested and not released on his or her written promise to appear,
his or her own recognizance, or a deposit of bail."
Penal Code section 19.7 states:
"Except as otherwise provided by law, all provisions of law relating to misdemeanors
shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of
courts, periods for commencing action and for bringing a case to trial and burden of proof."
Vehicle Code section 40000.1 Footnote No. 1 states: "Except as otherwise provided in this article, it is
unlawful and constitutes an infraction for any person to violate, or fail to comply with any provision of this
code, or any local ordinance adopted pursuant to this code."
Here we are given that a motorist has committed an infraction, such as driving to the left of
double parallel unbroken lines (§ 21460) or traveling in excess of the posted speed limit
(§§ 22348-22366). What are the consequences of being stopped by a peace officer for committing such an
offense?
1. Authority to Arrest
The first question to be resolved is whether a peace officer may arrest a motorist for
committing an infraction if no accident, traffic obstruction, or other event has occurred. We conclude that the
officer may do so.
Penal Code section 836, subdivision (a) provides:
"A peace officer may arrest a person in obedience to a warrant, or, pursuant to the
authority granted to him or her by [Penal Code sections 830-832.9], without a warrant, may
arrest a person whenever any of the following circumstances occur:
"(1) The officer has reasonable cause to believe that the person to be arrested has
committed a public offense in the officer's presence.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." Footnote No. 2
Accordingly, since an infraction is a public offense (Pen. Code, §§ 16-17), a peace officer may arrest a
motorist for committing an infraction "in the officer's presence." Whether an accident, traffic obstruction, or
other event has occurred is irrelevant.
In People v. Superior Court (Simon) (1972) 7 Cal. 3d 186, 200, the Supreme Court discussed
the precise moment when a peace officer "arrests" a motorist for committing an infraction:
" A police officer may legally stop a motorist to conduct a brief investigation when
2 of 6
. . . A police officer may legally stop a motorist to conduct a brief investigation when
he entertains a rational suspicion, based on specific facts, that a violation of the Vehicle Code or
other law may have taken place [citations], and the temporary restraint of the suspect's
movements incident to that investigation will not ordinarily be deemed an arrest. But when the
officer determines there is probable cause to believe that an offense has been committed and
begins the process of citing the violator to appear in court (Veh. Code, §§ 40500-40504), an
`arrest' takes place at least in the technical sense: `The detention which results [during the
citation process] is ordinarily brief, and the conditions of restraint are minimal. Nevertheless the
violator is, during the period immediately preceding his execution of the promise to appear,
under arrest. [Citations.] Some courts have been reluctant to use the term "arrest" to describe the
status of the traffic violator on the public street waiting for the officer to write out the citation
[citations]. The Vehicle Code, however, refers to the person awaiting citation as "the arrested
person." Viewing the situation functionally, the violator is being detained against his will by a
police officer, for the purpose of obtaining his appearance in connection with a forthcoming
prosecution. The violator is not free to depart until he has satisfactorily identified himself and
has signed the written promise to appear.' (Fns. omitted.) [Citation.]"
We thus conclude in answer to the first question that a peace officer may arrest a motorist
who has committed an infraction (e.g., driving to the left of double parallel unbroken lines or traveling in
excess of the posted speed limit) even though no accident, traffic obstruction, or other event has occurred.
2. Authority to Issue a Notice to Appear in Court
The second question concerns whether a peace officer may issue a notice to appear in court
to a motorist who has committed an infraction. We conclude that the officer may do so.
Section 40500, subdivision (a) provides:
"Whenever a person is arrested for any violation of this code not declared to be a
felony, or for a violation of an ordinance of a city or county relating to traffic offenses and he is
not immediately taken before a magistrate, as provided in this chapter, the arresting officer shall
prepare in triplicate a written notice to appear in court or before a person authorized to received a
deposit of bail, containing the name and address of the person, the license number of his or her
vehicle, if any, the name and address, when available, of the registered owner or lessee of the
vehicle, the offense charged and the time and place when and where he shall appear. If the
arrestee does not have a driver's license or other satisfactory evidence of identity in his or her
possession, the officer may require the arrestee to place a right thumbprint, or a left thumbprint
or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. This
thumbprint or fingerprint shall not be used to create a data base."
Hence, a peace officer "shall" issue a notice to appear in court to a motorist who commits an infraction if the
person "is not immediately taken before a magistrate, as provided in this chapter [§§ 40300-40618]."
A person must be taken before a magistrate under the conditions as set forth in section
40302:
"Whenever any person is arrested for any violation of this code, not declared to be a
felony, the arrested person shall be taken without unnecessary delay before a magistrate within
the county in which the offense charged is alleged to have been committed and who has
jurisdiction of the offense and is nearest or most accessible with reference to the place where the
arrest is made in any of the following cases:
"(a) When the person arrested fails to present his driver's license or other satisfactory
id f hi id i f i i
3 of 6
evidence of his identity for examination.
"(b) When the person arrested refuses to give his written promise to appear in court.
"(c) When the person arrested demands an immediate appearance before a magistrate.
"(d) When the person arrested is charged with violating Section 23152." Footnote No.
3
A peace officer may take a motorist before a magistrate or issue a notice to appear in court under the terms of
section 40303:
"Whenever any person is arrested for any of the following offenses and the arresting
officer is not required to take the person without unnecessary delay before a magistrate, the
arrested person shall, in the judgment of the arresting officer, either be given a 10 days' notice to
appear as provided in this section or be taken without unnecessary delay before a magistrate
within the county in which the offense charged is alleged to have been committed and who has
jurisdiction of the offense and is nearest or most accessible with reference to the place where the
arrest is made:
"(a) Section 10852 or 10853, relating to injuring or tampering with a vehicle.
"(b) Section 23103 or 23104, relating to reckless driving.
"(c) Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle
to stop and submit to an inspection or test of the lights upon the vehicle under Section 2804
hereof, which is punishable as a misdemeanor.
"(d) Section 2800, insofar as it relates to a failure or refusal of the driver of a vehicle
to stop and submit to a brake test which is punishable as a misdemeanor.
"(e) Section 2800, relating to the refusal to submit vehicle and load to an inspection,
measurement, or weighing as prescribed in Section 2802 or a refusal to adjust the load or obtain
a permit as prescribed in Section 2803.
"(f) Section 2800, insofar as it relates to any driver who continues to drive after being
lawfully ordered not to drive by a member of the California Highway Patrol for violating the
driver's hours of service or driver's log regulations adopted pursuant to subdivision (a) of Section
34501.
"(g) Section 20002 or 20003, relating to duties in the event of an accident.
"(h) Section 23109, relating to participating in speed contests or exhibition of speed.
"(i) Section 14601, 14601.1, or 14601.2, relating to driving while license is
suspended or revoked.
"(j) When the person arrested has attempted to evade arrest.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." Footnote No. 4
We thus conclude in answer to the second question that a peace officer may issue a notice to
appear in court to a motorist who has committed an infraction. The notice must be issued in certain
circumstances (§ 40500), may be issued in other situations (§ 40303), and may not be issued in still other
4 of 6
( ) y ( ) y
specified cases (§ 40302).
3. Refusal to Sign a Notice to Appear
The third question concerns whether a peace officer may take a motorist into custody if the
person refuses to sign the notice to appear in court. We conclude that the person must be taken into custody.
A motorist charged with committing an infraction is under arrest while the peace officer is in
the process of issuing the notice to appear in court. (§ 836, subd. (a); People v. Superior Court (Simon),
supra, 7 Cal.3d at 199-200.) The signing of the notice to appear is the means for securing the motorist's
release from arrest. Section 40504, subdivision (a) provides: "The officer shall deliver one copy of the notice
to appear to the arrested person and the arrested person in order to secure release must give his or her written
promise to appear in court or before a person authorized to receive a deposit of bail . . . ." Hence, a person is
not subject to arrest for refusing to sign the notice to appear; the arrest has already occurred.
A person who does not sign the promise to appear must be taken into custody and brought
before a magistrate. As previously quoted, subdivision (b) of section 40302 requires that the "person shall be
taken without unnecessary delay before a magistrate" if "the person arrested refuses to give his written
promise to appear in court." In People v. Blazina (1976) 55 Cal. App. Supp. 3d 35, 37, the court declared: "If
the defendant refuses to sign the notice to appear, he must be taken into custody and brought before a
magistrate without delay. A notice to appear is only furnished to the defendant when and if he agrees to
appear by affixing his signature."
We thus conclude in answer to the third question that if a motorist is stopped for committing
an infraction and refuses to sign the notice to appear in court, the peace officer must take the motorist into
custody and bring him or her before a magistrate or other appropriate official.
4. Availability of a Magistrate
The final question presented concerns whether each county must have at least one magistrate
on duty at all times for the performance of official duties. We conclude that each county must have a
magistrate reasonably available on call at all times to perform official duties.
Penal Code section 810, subdivision (a) provides:
"The presiding judge of the superior court, the presiding judge of each municipal
court in a county, and the judge of each justice court in a county, shall, as often as is necessary,
meet and designate on a schedule not less than one judge of the superior court, municipal court
or justice court to be reasonably available on call as a magistrate for the setting of orders for
discharge from actual custody upon bail, the issuance of search warrants, and for such other
matters as may by the magistrate be deemed appropriate, at all times when a court is not in
session in the county." Footnote No. 5
Having a magistrate "reasonably available on call" does not mean that a magistrate will
always be available in a county. The Legislature has addressed in section 40307 what the consequences are
when a magistrate is not available. Section 40307 provides:
"When an arresting officer attempts to take a person arrested for a misdemeanor or
infraction of this code before a magistrate and the magistrate or person authorized to act for him
is not available, the arresting officer shall take the person arrested, without unnecessary delay,
before:
"(a) The clerk of the magistrate who shall admit him to bail in accordance with a
5 of 6
( ) g
schedule fixed as provided in Section 1269b of the Penal Code, or
"(b) The officer in charge of the most accessible county or city jail or other place of
detention within the county who shall admit him to bail in accordance with a schedule fixed as
provided in Section 1269b of the Penal Code or may, in lieu of bail, release the person on his
written promise to appear as provided in subdivisions (a) through (f) of Section 853.6 of the
Penal Code."
In People v. Superior Court (Simon), supra, 7 Cal.3d at 209, the Supreme Court explained the purposes for
bringing a motorist before a magistrate or other appropriate official:
". . . Section 40302 requires that a person coming within its terms be taken `without
unnecessary delay' before the `nearest or most accessible' magistrate having jurisdiction, and
sections 40306 and 40307 prescribe the next step in the procedure: if a magistrate is available,
section 40306 provides (a) the arresting officer shall file a complaint, (b) the arrestee shall be
given at least five days' continuance to prepare his case and (c) `shall thereupon be released from
custody' on his own recognizance or on bail; if on the other hand a magistrate is not available,
section 40307 provides that the officer shall take the arrestee before (a) the clerk of the
magistrate `who shall admit him to bail' or (b) the officer in charge of the most accessible jail
`who shall admit him to bail' or release him upon a simple written promise to appear."
We thus conclude in answer to the final question that a magistrate is not required to be on
duty in a county at all times but must be reasonably available on call to perform official duties. If no
magistrate is available, the motorist must be taken before another official as set forth in section 40307.
*****
Footnote No. 1
All references hereafter to the Vehicle Code are by section number only.
Footnote No. 2
Penal Code sections 830-832.9 describe the law enforcement functions of "peace officers" and the scope of their authority.
Footnote No. 3 Section 23152 concerns driving under the influence of any alcoholic beverage or drug.
Footnote No. 4
Section 40304 authorizes members of the California Highway Patrol to take a motorist before a magistrate or issue a notice
to appear in court when specified conditions are met. A notice to appear may also be issued under the narrowly drawn
conditions of sections 40303.5, 40522, and 40610.
Footnote No. 5
California no longer has justice courts; they have become municipal courts. (Cal. Const., art. VI, §§ 1, 5; 78
Ops.Cal.Atty.Gen. 151 (1995).)
6 of 6 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128192/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-906
of :
: April 24, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE DICK MONTEITH, MEMBER OF THE CALIFORNIA SENATE, has
requested an opinion on the following questions:
1. Under what circumstances may a pupil be expelled from school for "possessing" a
firearm?
2. What circumstances constitute an abuse of discretion by a county board of education in
reversing the decision of a governing board of a school district to expel a pupil?
3. May the governing board of a school district seek judicial review of a decision of the
county board of education reversing the district board's decision to expel a pupil?
CONCLUSIONS
1. A pupil may be expelled from school for "possessing" a firearm if the pupil knowingly
and voluntarily has direct control over the firearm. The only exceptions are where the pupil has the
permission of school officials to possess the firearm or where the possession is brief and solely for the
purpose of disposing of the firearm such as handing it to school officials.
2. A county board of education abuses its discretion in reversing the decision of a
governing board of a school district to expel a pupil if it does not comply with the statutory requirements
applicable to such review.
3. The governing board of a school district may seek judicial review of a decision of the
county board of education reversing the district board's decision to expel a pupil.
ANALYSIS
The Legislature has enacted a comprehensive statutory scheme (Ed. Code, §§ 48900-48926)
Footnote No. 1 governing the suspension and expulsion of pupils from elementary and secondary schools.
1 of 5
"Suspension" is the "removal of a pupil from ongoing instruction for adjustment purposes. . . ." (§ 48925,
sub. (d).) "Expulsion" is the "removal of a pupil from (1) the immediate supervision and control, or (2) the
general supervision, of school personnel. . . ." (§ 48925, subd. (b).)
The three questions presented for resolution concern the expulsion of a pupil for possessing
a firearm on school property. What does "possession" mean, when does a county board of education abuse its
discretion in reversing a school board's decision to expel a pupil, and may the school board seek judicial
review of the county board's decision?
1. "Possession" of a Firearm
Section 48900 states in part:
"A pupil may not be suspended from school or recommended for expulsion
unless the superintendent or the principal of the school in which the pupil is enrolled determines
that the pupil has:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(b) Possessed, sold, or otherwise furnished any firearm, knife, explosive, or
other dangerous object unless, in the case of possession of any object of this type, the pupil had
obtained written permission to possess the item from a certificated school employee, which is
concurred in by the principal or the designee of the principal.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"A pupil may not be suspended or expelled for any of the acts enumerated
unless that act is related to school activity or school attendance occurring within a school under
the jurisdiction of the superintendent or principal or occurring within any other school district.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Section 48915 provides in part:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(c) The principal or superintendent of schools shall immediately suspend,
pursuant to Section 48911, and shall recommend expulsion of a pupil that he or she determines
has committed any of the following acts at school or at a school activity off school grounds.
"(1) Possessing, selling, or otherwise furnishing a firearm. This subdivision
does not apply to an act of possessing a firearm if the pupil had obtained prior written permission
to possess a firearm from a certificated school employee, which is concurred in by the principal
or the designee of the principal. This subdivision applies to an act of possessing a firearm only if
the possession is verified by an employee of a school district.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "
The first question concerns the meaning of the terms "possessed" and "possessing" in sections 48900 and
48915 as they related to the possession of a firearm.
In addressing this question, we rely on well established principles of statutory construction.
We are to interpret statutes so as to effectuate the intent of the Legislature. (Brown v. Kelly Broadcasting Co.
(1989) 48 Cal 3d 711 724 ) "In doing so we turn first to the statutory language since the words the
2 of 5
(1989) 48 Cal. 3d 711, 724.) In doing so we turn first to the statutory language, since the words the
Legislature chose are the best indicators of its intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange
County Employees Retirement System (1993) 6 Cal. 4th 821, 826.) The words of a statute are to be given
"their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2 Cal. 4th 593, 601.) "Statutes are to
be given a reasonable and commonsense interpretation . . . ." (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal. 3d 1379, 1392.)
"Possession" in this context has been defined by the courts as the immediate control of an
object; the thing possessed must be under the dominion of the possessor. (People v. Bigelow (1951) 104
Cal. App. 2d 380, 385.) Possession may be in the hand, clothes, purse, bag, or other container. (People v. Sills
156 Cal. App. 2d 618, 622.) Having the object for even a limited time and purpose constitutes possession.
(People v. Neese (1969) 272 Cal. App. 3d 235, 245.) However, brief possession solely for the purpose of
disposing of the object is not unlawful, as in the case where a person removes illegal drugs from the pocket
of an unconscious friend and immediately throws them away. (People v. Mijares (1971) 6 Cal. 3d 415; see
also People v. Cole (1988) 202 Cal. App. 3d 1439.) We believe that "disposing" of an object in this context
includes transferring it to law enforcement officers or other proper authorities.
Accordingly, if a pupil is handed a firearm by another pupil, brings it to a restroom, and
abandons it, such acts constitute a violation of section 48900 or 48915, unless the sole purpose of the brief
possession is to dispose of the firearm. If a pupil places a firearm in the backpack of another pupil, tells the
other pupil of the firearm's location, and the other pupil returns the firearm an hour later wrapped in a coat,
both pupils have sufficient "possession" to constitute a violation of section 48900 or 48915; no intention to
dispose of the firearm could be asserted based upon such limited facts. It also constitutes a violation of either
statute if the pupil accepts a firearm from another pupil, hides it under his coat for a short time, and then
returns the firearm. As long as the possession is knowing and voluntary and not for the purpose of disposing
of the firearm, e.g., handing the firearm to school officials, the pupil "possesses" the firearm regardless of the
length of time involved.
We conclude in answer to the first question that a pupil may be expelled from school for
"possessing" a firearm if the pupil knowingly and voluntarily has direct control over the firearm. The only
exceptions are where the pupil has the permission of school officials to possess the firearm (§§ 48900,
48915) or where the possession is brief and solely for the purpose of disposing of the firearm such as handing
it to school officials.
2. Abuse of Discretion
The second question presented concerns the circumstances under which a county board of
education abuses its discretion in reversing the decision of a school board to expel a pupil. We conclude that
the failure to comply with the governing statutory requirements would constitute an abuse of discretion.
Following expulsion by the governing board of a school district, an appeal to the county
board of education is available to the pupil or the pupil's parent or guardian. (§ 48919.) The basis for the
county board's decision is the record of the hearing before the district governing board. (§ 48921.) The scope
of the county board's review is defined by section 48922:
"(a) The review by the county board of education of the decision of the
governing board shall be limited to the following questions:
"(1) Whether the governing board acted without or in excess of its jurisdiction.
"(2) Whether there was a fair hearing before the governing board.
"(3) Whether there was a prejudicial abuse of discretion in the hearing.
3 of 5
"(4) Whether there is relevant and material evidence which, in the exercise of
reasonable diligence, could not have been produced or which was improperly excluded at the
hearing before the governing board.
"(b) As used in this section, a proceeding without or in excess of jurisdiction
includes, but is not limited to, a situation where an expulsion hearing is not commenced within
the time periods prescribed by this article, a situation where an expulsion order is not based upon
the acts enumerated in Section 48900, or a situation involving acts not related to school activity
or attendance.
"(c) For purposes of this section, an abuse of discretion is established in any of
the following situations:
"(1) If school officials have not met the procedural requirements of this article.
"(2) If the decision to expel a pupil is not supported by the findings prescribed
by Section 48915.
"(3) If the findings are not supported by the evidence.
A county board of education may not reverse the decision of a governing board
to expel a pupil based upon a finding of an abuse of discretion unless the county board of
education also determines that the abuse of discretion was prejudicial."
A county board's decision is also circumscribed by the terms of section 48923:
"The decision of the county board shall be limited as follows:
"(a) Where the county board finds that relevant and material evidence exists
which, in the exercise of reasonable diligence, could not have been produced or which was
improperly excluded at the hearing before the governing board, it may do either of the following:
"(1) Remand the matter to the governing board for reconsideration and may in
addition order the pupil reinstated pending such reconsideration.
"(2) Grant a hearing de novo upon reasonable notice thereof to the pupil and to
the governing board. The hearing shall be conducted in conformance with the rules and
regulations adopted by the county board under Section 48919.
"(b) In all other cases, the county board shall enter an order either affirming or
reversing the decision of the governing board. In any case in which the county board enters a
decision reversing the local board, the county board may direct the local board to expunge the
record of the pupil and the records of the district of any references to the expulsion action and
such expulsion shall be deemed not to have occurred."
These statutes define the scope of the county board's discretion. If a county board should act in a manner not
authorized by the statutes, such failure would constitute an abuse of discretion. (See Code Civ. Proc., §
1094.5, subd. (b); Laupheimer v. State of California (1988) 200 Cal. App. 3d 440, 463; City of Poway v. City
of San Diego (1984) 155 Cal. App. 3d 1037, 1041 ["the question of abuse of discretion, which is established if
the agency has not proceeded as required by law . . ."].)
Accordingly, we conclude in answer to the second question that a county board of education
abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it
4 of 5
abuses its discretion in reversing the decision of a governing board of a school district to expel a pupil if it
does not comply with the statutory requirements applicable to such administrative review.
3. Judicial Review
The final question presented is whether the governing board of a school district may seek
judicial review of the decision of a county board of education reversing the school board's decision to expel a
pupil. We conclude that it may.
Section 48924 provides:
"The decision of the county board of education shall be final and binding upon
the pupil and upon the governing board of the school district. The pupil and the governing board
shall be notified of the final order of the county board, in writing, either by personal service or
by certified mail. The order shall become final when rendered."
Do the words "final" and "binding" contained in section 48924 preclude a school board from seeking judicial
review of the county board's order?
In Fremont Union High Sch. Dist. v. Santa Clara County Bd. of Education (1991) 235
Cal. App. 3d 1182, the governing board of a school district sought judicial review of the decision of a county
board of education reversing the school board's decision to expel a pupil. It was unquestioned that the school
board could seek judicial review, and indeed the trial court granted the board's petition for a writ of mandate
ordering the county board to set aside its decision; on appeal, the judgment in favor of the school board was
affirmed.
While there is no explicit statutory directive for judicial review of a county board's decision
concerning expulsion, it is the general rule that the decisions of administrative bodies rendering quasi-judicial
decisions are reviewable under the administrative mandate provisions of Code of Civil Procedure section
1094.5. (See Temescal Water Co. v. Dept. of Public Works (1955) 44 Cal. 2d 90, 102.) The language of
section 48923, that the decision of the county board is "final and binding upon the pupil and upon the
governing board of the school district," in no way precludes either the school board or the pupil from seeking
judicial review. Indeed, the statement that the decision is "final and binding" establishes one of the
requirements for judicial review, since only final administrative decisions may be reviewed by a court. (See,
e.g., State of California v. Superior Court (Veta) (1974) 12 Cal. 3d 237, 245.)
We thus conclude in answer to the third question that the governing board of a school
district may seek judicial review of a decision of the county board of education reversing the district board's
decision to expel a pupil.
*****
Footnote No. 1
All references hereafter to the Education Code are by section number only.
5 of 5 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128210/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 3, 2010
The Honorable John Mark Cobern Opinion No. GA-0757
Titus County Attorney
Titus County Courthouse Re: Whether the Behavioral Health Unit of the Titus
100 West First Street Regional Medical Center is a "private facility" for
Mount Pleasant, Texas 75455 purposes of section 118.055, Local Government Code
(RQ-0795-GA)
Dear Mr. Cobern:
You ask whether the Behavioral Health Unit (the "BHU") of the Titus Regional Medical
Center (the "TRMC") is a "private facility" for purposes of section 118.055, Local Government
Code.! See TEx. Loc. GOV'T CODE ANN. § 118.055(c) (Vernon 2008).
You indicate that the TRMC is a general medical facility operated by the Titus County
Hospital District (the "District,,). 2 We presume for purposes ofthis opinion that the TRMC is owned
and operated by the District. A hospital district is a political subdivision of the State of Texas. See
TEx. HEALTH & SAFETY CODE ANN. § 571.003(19) (Vernon Supp. 2008) (the term "political
subdivision" includes a hospital district). The District was created in 1963, pursuant to article IX,
section 9 ofthe Texas Constitution, by a special act of the Legislature. See Act of May 9, 1963, 58th
Leg., R.S., ch. 298, §§ 1-20, 1963 Tex. Gen. Laws 771, 771-77; TEx. CONST. art. IX, § 9. Its
enabling statute requires the District to "assume full responsibility for providing medical and hospital
care for the needy residing within the District." Act of May 9, 1963, 58th Leg., R.S., ch. 298, § 2,
1963 Tex. Gen. Laws 771, 771. You state that the TRMC operates the BHU as part of its medical
center and that periodically the TRMC "must make application on behalf of an indigent patient for
mental health services to be provided to the patient at its behavioral health unit." Titus County Brief
at 1.
You further state that when the TRMC files an action in county court on behalf of an
indigent, payment of the application fee is determined by section 118.055(c) of the Local
Government Code,3 which provides:
lSee Titus County Brief at 1 (attached to Request Letter) (available at http://www.texasattomeygeneral.gov).
2See id.
The Honorable John Mark Cobern - Page 2 (GA-0757)
(c) The fee for an action involving mental health or chemical
dependency services is for the services listed in Sections 571.016,
571.017, 571.018, and 574.008(c), Health and Safety Code, or
services under Subchapter C or D, Chapter 462, Health and Safety
Code. The fees shall be paid by the person executing the application
for mental health or chemical dependency services and are due at the
time the application is filed if the services requested relate to services
provided or to be provided in a private facility. If the services
requested relate to services provided or to be provided in a mental
health facility of the Texas Department of Mental Health and Mental
Retardation or the federal government, the county clerk may collect
the fees only in accordance with Section 571.018(h), Health and
Safety Code.
TEx. Loc. GOV'T CODE ANN. § 118.055(c) (Vernon 2008) (footnote omitted and emphasis added).
You tell us the TRMC, which is operated by the District, is not a mental health facility of the
Department ofMental Health and Mental Retardation or the federal government. See generally Titus
County Brief. The question before us is thus whether the BHU, as part of the TRMC, is a "private
facility."
The term "private facility" is not defined in section 118.055 of the Local Government Code,
nor in any other Texas statute of which we are aware. However, the common meaning of the word
"private" is well understood. One dictionary defmes the term "private" in the context of section
118.055 as "[b]elonging to a particular person or persons, as opposed to the public or the
government[;] ... [0]f, relating to, or derived from nongovernment sources[; and] ... [c]onducted
and supported primarily by individuals or groups not affiliated with governmental agencies or
corporations: a private college [or] a private sanatorium." AMERICAN HERITAGE DICTIONARY 1396
(4th ed. 2000). Another dictionary defines the word "private" to mean "of or relating to a system
of education or medical treatment conducted outside the system of government." OXFORD
AMERICAN DICTIONARY 1356 (1 st ed. 2001). These common definitions indicate then that a "private
facility" is one that is operated by an agency or institution that is not affiliated with any governmental
body.
As we have indicated, the BHU is a part ofthe TRMC, which is operated by the Titus County
Hospital District, a political subdivision of the state. As such, a court would probably conclude that
neither the BHU nor the TRMC may properly be denominated a "private facility."
The Honorable John Mark Cobern - Page 3 (GA-0757)
SUMMARY
A court would likely conclude that the Behavioral Health Unit
of the Titus Regional Medical Center, as part of the Titus County
Hospital District, is not a "private facility" for purposes of section
118.055, Local Government Code.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128398/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1104
of :
: March 5, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE MIKE THOMPSON, MEMBER OF THE CALIFORNIA STATE
SENATE, has requested an opinion on the following question:
1. Does the method by which the Vallejo Sanitation and Flood Control District
calculates the monthly user fees charged for the operation and maintenance of its storm drainage
system meet constitutional requirements?
2. Is the Vallejo Sanitation and Flood Control District required to obtain prior voter
approval when revising the methodology by which it calculates its storm drainage system
monthly user fees, resulting in an increased amount being charged certain persons?
CONCLUSIONS
1. The method by which the Vallejo Sanitation and Flood Control District calculates the
monthly user fees charged for the operation and maintenance of its storm drainage system does
not meet constitutional requirements.
2. The Vallejo Sanitation and Flood Control District is required to obtain prior voter
approval when revising the methodology by which it calculates its storm drainage system
monthly user fees, resulting in an increased amount being charged certain persons.
ANALYSIS
The Vallejo Sanitation and Flood Control District ("District") operates a sanitation sewer
system and a storm drainage system for its customers. (See English Manor Corp. v. Vallejo
Sanitation & Flood Control Dist. (1974) 42 Cal. App. 3d 996, 1000.) The two systems are
operated separately, with the sewer system connecting to a water treatment plant and the storm
drainage system transporting water directly into San Francisco Bay. Footnote No. 1
The customers of the District are charged separately for maintaining the two systems.
Currently only those persons who are connected to the sewer system are charged monthly fees to
maintain the storm drainage system. If a parcel is vacant or otherwise not connected to the sewer
system, no storm drainage system user fees are imposed. Hence, owners of parcels used for
storage facilities, parking lots, or other uses that do not require a sewer connection escape the
fees.
1. Validity of the Fees
The first question presented for resolution is whether the District's method of imposing its
storm drainage system monthly user fees meets constitutional requirements. We conclude that it
does not.
At the November 5, 1996, general election, state voters approved Proposition 218, adding
articles XIII C and XIII D to the Constitution. The two constitutional amendments generally
require prior voter approval for new or increased general taxes (Cal. Const., art. XIII C, § 2,
subd. (b)), special taxes (Cal. Const., art. XIII C, § 2, subd. (d)), assessments (Cal. Const., art.
XIII D, § 4, subds. (d), (e)), and fees and charges (Cal. Const. art. XIII D, § 6, subd. (c)). Among
the specific constitutional requirements is that fees and charges "imposed upon any parcel . . .
shall not exceed the proportional cost of the service attributable to the parcel." (Cal. Const., art.
XIII D, § 6, subd. (b) (3).) The first question focuses on this latter constitutional provision.
It is evident that a storm drainage system is designed to benefit individual parcels of
property. It transports runoff water from rainstorms and other sources into channels and
waterways, rather than allowing the water to flood areas where it might damage property. These
purposes are confirmed by statutes enacted by the Legislature to implement article XIII D of the
Constitution. Government Code section 53750 provides in part:
"For purposes of Article XIII C and Article XIII D of the California Constitution and this
article:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(d) 'Drainage System' means any system of public improvements that is intended to
provide for erosion control, landslide abatement, or for other types of water drainage.
"...........................................
"(f) 'Flood control' means any system of public improvements that is intended to protect
property from overflow by water.
" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
The owners of land used for such purposes as storage buildings and parking lots are
benefitted by the District's storm drainage system services. Yet they are not charged any fees if
they are not connected to the District's sewer system. It necessarily follows that the District's
costs associated with operating and maintaining the system are borne totally by those connected
to the sewer system. Therefore, those who are charged the fees must pay more than the
proportional cost of the services attributable to their own parcels. This is not permissible under
article XIII D, section 6, subdivision (b)(3) of the Constitution. Footnote No. 2
We conclude that the method by which the District charges monthly user fees for its storm
drainage system services does not meet constitutional requirements.
2. Prior Voter Approval
The District intends to establish a new schedule of storm drainage system fees that will be
based upon the proportional cost of storm drainage services provided to each parcel, a schedule
that will take into account the amount of impervious area of each developed parcel. Accordingly,
persons in the District who currently have no sewer connections will be subject to the storm
drainage system fees for the first time.
The second question presented for resolution concerns whether the voters of the District
must approve the proposed change in calculating the new monthly user fees for operating and
maintaining the District's storm drainage system. We conclude that an election must be held and
approval given.
At the core of this question is subdivision (c) of section 6 of article XIII D of the
Constitution, which provides:
"Except for fees or charges for sewer, water, and refuse collection services, no property
related fee or charge shall be imposed or increased unless and until that fee or charge is
submitted and approved by a majority vote of the property owners of the property subject to the
fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the
affected area. . . ."
A fee or charge is "property related" if it is for "a public service having a direct relationship to
property ownership." (Cal. Const., art. XIII D, § 2, subd. (h).) Subdivision (e) of section 2 of
article XIII D states:
"'Fee' or 'charge' means any levy other than an ad valorem tax, a special tax, or an
assessment, imposed by an agency upon a parcel or upon a person as an incident of property
ownership, including a user fee or charge for a property related service."
In contrast, an "assessment" is defined in subdivision (b) of section 2 of article XIII D as follows:
"'Assessment' means any levy or charge upon real property by an agency for a special
benefit conferred upon the real property. 'Assessment' includes, but is not limited to, 'special
assessment,' 'benefit assessment,' 'maintenance assessment' and 'special assessment tax.'"
The District plans to impose the new monthly rates as "fees" for providing storm drainage
"services" to its customers rather than as "assessments" to cover the cost of providing its storm
drainage system as a "benefit" to the parcels within the District. Because of the conclusion we
reach, it makes little analytical difference whether the establishment of "fees" or "assessments" is
involved here.
Undoubtedly, the new monthly fees will be "property related," since they will be based
upon the amount of impervious area of each developed parcel. As observed in answer to the first
question, the District's storm drainage system is intended to serve directly the property within the
drainage area. (See Gov. Code, § 53750, subds. (d), (f).)
The main issue to be resolved is whether prior voter approval is required for imposition of
the proposed fees in light of the exception from voter approval for "fees or charges for sewer,
water, and refuse collection services." (Cal. Const., art. XIII D, § 6, subd. (c).) If the fees are for
sewer, water, or refuse collection services, no voter approval is necessary.
First, as for sewer services, the term "sewer" is often used differently in different contexts.
(See, e.g., Pub. Util. Code, § 230.5.) We note that subdivision (a) of section 5 of article XIII D
refers to "[a]ny assessment imposed exclusively to finance the capital costs or maintenance and
operation expenses for sidewalks, streets, sewers, water, flood control, drainage system, or vector
control." Such language in a related constitutional provision supports application of the
following rule of statutory construction: "If a statute on a particular subject omits a particular
provision, inclusion of that provision in another related statute indicates an intent the provision is
not applicable to the statute from which it was omitted." (In re Marquis D. (1995) 38
Cal. App. 4th 1813, 1827.) Footnote No. 3 Placing "flood control, drainage systems" in section 5 of
article XIII D while omitting such terms in section 6's voter approval exemption clause
evidences an intent to require prior voter approval of new or additional storm drainage system
fees.
The Legislature has similarly distinguished sewer systems from storm drainage systems in
various statutory schemes. For example, Government Code section 63010, subdivision (i)
describes the two separately as follows:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) 'Drainage and flood control' includes ditches, canals, levees, pumps, dams, conduits,
pipes, storm sewers, and dikes necessary to keep or direct water away from people, equipment,
buildings, and other protected areas as may be established by lawful authority, as well as the
acquisition, improvement, maintenance, and management of floodplain areas and all equipment
used in the maintenance and operation of the foregoing.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(10) 'Sewage collection and treatment' includes pipes, pumps, and conduits that collect
wastewater from residential, manufacturing, and commercial establishments, the equipment,
structures, and facilities used in treating wastewater to reduce or eliminate impurities or
contaminants, and the facilities used in disposing of, or transporting, remaining sludge, as well as
all equipment used in the maintenance and operation of the foregoing.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
Health and Safety Code section 5471 likewise differentiates between sewer systems and storm
drainage systems, as does the organic act under which the District was formed and continues to
operate (see Stats. First Ex. Sess. 1952, ch. 17, p. 351; Deering's Wat.--Uncod. Acts, Act 8934;
West's Water Code--App., ch. 67). Footnote No. 4
Any remaining doubt is removed by applying the following principle of statutory
construction recently reaffirmed in City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16
Cal. App. 4th 1005, 1017:
". . . 'Exceptions to the general rule of a statute are to be strictly construed. In interpreting
exceptions to the general statute courts include only those circumstances which are within the
words and reason of the exception. . . . One seeking to be excluded from the sweep of the general
statute must establish that the exception applies.' [Citations.]"
If storm drainage system fees are not fees for "sewer . . . services," are they fees for "water
. . . services" within the meaning of article XIII D, section 6, subdivision (c)? Government Code
section 53750, subdivision (m) defines "water" for purposes of article XIII D as "any system of
public improvements intended to provide for the production, storage, supply, treatment, or
distribution of water."
While there may be some temporary storage of water in connection with a storm drainage
system, it is apparent that the District's drainage and flood control system is designed to do the
opposite of that which the Legislature's definition of "water . . . services" contemplates. The
District's storm drainage system does not produce water or supply it to end users. Rather than
distributing water, it collects and removes it. The District does not treat any water flowing into
its storm drainage system. Consequently, the exception from voter approval in Article XIII D,
section 6, subdivision (c), for "water . . . services" is inapplicable.
Finally, we note that prior voter approval is required only if the fees or charges are
"imposed or increased." (Cal. Const., art. XIII D, § 6, subd. (c).) Here, the District proposes to
change its method of calculating the fees in question, which revision will impose the fees on
some property owners who have not previously been charged. The Legislature has addressed this
issue in Government Code section 53750:
"For purposes of Article XIII C and Article XIII D of the California Constitution and this
article:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(h)(1) 'Increased,' when applied to a tax, assessment, or property-related fee or charge,
means a decision by an agency that does either of the following:
"(A) Increases any applicable rate used to calculate the tax, assessment, fee or charge.
"(B) Revises the methodology by which the tax, assessment, fee or charge is calculated, if
that revision results in an increased amount being levied on any person or parcel.
"(2) A tax, fee, or charge is not deemed to be 'increased' by an agency action that does either
or both of the following:
"(A) Adjusts the amount of a tax or fee or charge in accordance with a schedule of
adjustments, including a clearly defined formula for inflation adjustment that was adopted by the
agency prior to November 6, 1996.
"(B) Implements or collects a previously approved tax, or fee or charge, so long as the rate
is not increased beyond the level previously approved by the agency, and the methodology
previously approved by the agency is not revised so as to result in an increase in the amount
being levied on any person or parcel.
"(3) A tax, assessment, fee or charge is not deemed to be 'increased' in the case in which the
actual payments from a person or property are higher than would have resulted when the agency
approved the tax, assessment, or fee or charge, if those higher payments are attributable to events
other than an increased rate or revised methodology, such as a change in the density, intensity, or
nature of the use of land.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "
The District will be revising the methodology by which the storm drainage system monthly
user fees are calculated, resulting in an increased amount being charged certain persons. The
formula is newly developed to reflect the proportional cost of the services attributable to each
landowner served. (See Cal. Const., art. XIII D, § 6, subd. (b)(3).) Hence, the proposed adjusted
fees will be "imposed or increased" for purposes of article XIII D.
No other constitutional or statutory provision appears to affect our determination. We
conclude that the District is required to obtain prior voter approval when revising the
methodology by which it calculates its storm drainage system monthly user fees, resulting in an
increased amount being charged certain persons.
*****
Footnote No. 1
We are informed that in a few localities, the sewer system and storm drainage system are combined, with both
connecting to a water treatment plant. The operation of such combined systems is beyond the scope of this opinion.
Footnote No. 2
The storm drainage fees charged by the District are based upon the amount of sewer system usage attributable to a
parcel. We have not been informed of any relationship between sewer usage and the District's proportional cost of
providing storm drainage services to a particular parcel. (See fn. 1.)
Footnote No. 3
Rules of statutory interpretation "apply as well to the interpretation of constitutional provisions." (Lungren v.
Deukmejian (1988) 45 Cal. 3d 727, 735.)
Footnote No. 4
As previously noted, in a few localities the sewer system and storm drainage system are combined and connect to a
water treatment plant. (See fn. 1.) | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124987/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
April 25, 2016
The Honorable Joseph C. Pickett Opinion No. KP-0077
Chair, Committee on Transportation
Texas House of Representatives Re: Authority of the Texas Department of
Post Office Box 2910 Transportation to enter into design-build
Austin, Texas 78768-2910 contracts during the 2016-201 7 fiscal
biennium (RQ-0063-KP)
Dear Representative Pickett:
You ask for clarification regarding "the authority of the Texas Department of
Transportation ("Department") to enter into design-build contracts during the 2016-2017 fiscal
biennium." 1 You explain that your question arises due to a potential conflict between section
223.242 of the Transportation Code and a rider to the General Appropriations Act of the Eighty-
fourth Legislature. Request Letter at 1.
Section 223.242 of the Transportation Code authorizes the Department to enter into design-
build contracts for highway projects in certain circumstances. See TEX. TRANSP. CODE § 223.242. 2
Relevant to your request, subsection (d) authorizes the Department to "enter into a design-build
contract for a highway project with a construction cost estimate of $150 million or more." Id.
§ 223.242(d). 3 Furthermore, the Department "may not enter into more than three contracts" under
section 223.242 in each fiscal year. Id. § 223.242(d-1). The Eighty-fourth Legislature's General
Appropriations Act likewise includes restrictions related to the cost of the Department's design-
build contracts and the total number of design-build contracts that the Department may enter into.
Rider 47 to the Department of Transportation's appropriations states:
1
Letter from Honorable Joseph C. Pickett, Chair, House Comm. on Transp., to Honorable Ken Paxton, Tex.
Att'y Gen. at I (Oct. 29, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2"Design-build method" is defined as "a project delivery method by which an entity contracts with a single
entity to provide both design and construction services for the construction, rehabilitation, alternation, or repair of a
facility." TEX. TRANSP. CODE§ 223.241(2).
3 In 2015, the Legislature amended section 223.242 by increasing from $50 million to $I 50 million the
minimum project construction cost estimate for a design-build contract. See Act of May 29, 20 I 5, 84th Leg., R.S.,
ch. 314, § 7, 2015 Tex. Gen. Laws 1449, 1451 (codified at TEX. TRANSP. CODE § 233.242(d)).
The Honorable Joseph C. Pickett - Page 2 (KP-0077)
Limitation on Expenditures for Design-Build Contracts. The
Department of Transportation is authorized to expend funds
appropriated by this Act to enter into no more than ten design-build
contracts in the 2016-2017 biennium for highway projects that have
an estimated construction cost to the department of $250,000,000 or
more per highway project. If provisions in Transportation Code
§223.242, or similar general law, establish a limit on the number of
design-build contracts that the Department of Transportation may
enter into in each fiscal year or biennium that is less than the amount
authorized by this section, then the limitation established by general
law prevails.
General Appropriations Act, 84th Leg., R.S., ch. 1281, art. VII-31, 2015 Tex. Gen. Laws 4343,
5070. In light of section 223.242 of the Transportation Code, you ask whether Rider 47 is valid
and the extent of the Department's "authority to enter into design-build contracts during the 2016-
2017 fiscal biennium." Request Letter at 4. Section 223.242 and Rider 47 include restrictions on
both the number of design-build contracts that the Department may enter into and the estimated
construction cost per project, and we will address each in turn.
With regard to the number of design-build contracts that the Department may enter into,
section 223.242 limits the Department to no more than three design-build contracts per fiscal year.
See TEX. TRANSP. CODE§ 223.242(d-l). In contrast, Rider 47 limits the Department to "no more
than ten design-build contracts in the 2016-2017 biennium for highway projects that have an
estimated construction cost to the department of $250,000,000 or more per highway project." See
General Appropriations Act, 84th Leg., R.S., ch. 1281, art. VII-31, 2015 Tex. Gen. Laws 4343,
5070. Thus, the two provisions conflict to the extent that Rider 4 7 authorizes the Department to
enter into more design-build contracts in a fiscal year. Rider 4 7 acknowledges the possibility of a
conflict, however, and it recognizes that "the limitation established by general law prevails." Id.
Pursuant to the general law found in section 223.242, during a fiscal year the Department "may
not enter into more than three" design-build contracts for highway projects. TEX. TRANSP. CODE
§ 223.242(d)(l).
With regard to the minimum construction cost estimate of design-build contracts, section
223.242 authorizes the Department to enter into such a contract with an estimated construction
cost of$150 million or more, so long as the other statutory requirements are met. Id. § 223.242(d).
You suggest that Rider 47 may establish "a minimum project construction cost estimate of $250
million." Request Letter at 2. Rider 47 limits only the number of design-build contracts with
estimated costs exceeding $250 million that the Department may enter into. See General
Appropriations Act, 84th Leg., R.S., ch. 1281, art. VII-31, 2015 Tex. Gen. Laws 4343, 5070. It
does not speak to or otherwise limit the Department from entering into design-build contracts with
an estimated construction cost of between $150 and $250 million. Thus, Rider 47 is a restriction
or qualification on the use of appropriated funds that does not conflict with the general law in
section 223.242. See Strake v. Ct. App. for First Sup. Jud. Dist. of Tex., 704 S.W.2d 746, 748
(Tex. 1986) (explaining that a rider may not alter existing substantive law). The Department may
therefore enter into a design-build contract for a highway project with a construction cost estimate
of $150 million or more.
The Honorable Joseph C. Pickett - Page 3 (KP-0077)
SUMMARY
Pursuant to section 223.242 of the Transportation Code, the
Department of Transportation may enter into a design-build contract
for a highway project with a construction cost estimate of $150
million or more. The Department may not enter into more than three
such contracts in each fiscal year.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143264/ | OFFICE OF THE AITORNEY GENERAL OF TEXA8
AUSTIN
Xonomblo X. N. lteop.8,P4it.2
la;- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128280/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 27, 2009
The Honorable Rex Emerson Opinion No. GA-0711
Kerr County Attorney
County Courthouse, Suite BA-I03 Re: Definition of "audit" for purposes of section
700 Main Street 775.082, Heath and Safety Code (RQ-0759-GA)
Kerrville, Texas 78028
Dear Mr. Emerson:
You initially ask us to define the term "audit" as it is used in section 775.082 of the Health
and Safety Code. 1 Section 775.082 requires an emergency services district to file an "audit report
of [its] fiscal accounts and records" with the specified commissioners courts. TEx. HEALTH &
SAFETY CODE ANN. § 775.082(b) (Vernon Supp. 2008). The audit is to be prepared by "an
independent certified public accountant ... licensed in this state, unless the commissioners court
by order requires the audit to be performed by the county auditor [by a specified date]." Id
§ 775. 082(c). You state that issues arise when the county auditor is also a certified public accountant
("CPA") and subject to the CPA rules of professional conduct, including standards concerning
independence. See Request Letter at 1-2. Thus, the question ultimately raised in your request letter
is "whether the County Auditor who is a CPA can ethically perform an audit as directed under
[chapter] 775." Id at 2.
The Texas State Board of Public Accountancy ("TSBPA"), the agency charged with
regulating the public accountancy profession, has answered that question. See TEx. Occ. CODE ANN.
§§ 901.051 (Vernon 2004) (providing for TSBPA board), 901.151 (a)(1) (providing that Board shall
administer chapter 901). In its briefing submitted to our office, the TSBPA cites to section
901.004(a), Occupations Code, which provides that the Public Accountancy Act does not: "(1)
restrict an official act of a person acting in the person's capacity as: (A) an officer of the state or of
a county, municipality, or other political subdivision, including a county auditor; ... " TSBPA Brief
at 1-2 (citing TEX. OCC. CODE ANN. § 901.004(a) (Vernon 2004)). Based on this provision, the
TSBPA states that
it is our belief that the Kerr County Auditor acting in her capacity
pursuant to a state law which requires the performance of an audit,
even if it means an audit not in compliance with this agency's
lRequest Letter at 2 (available at http://www.texasattomeygeneral.gov).
The Honorable Rex Emerson - Page 2 (GA-0711)
attestation standards, would not be in violation of the Public
Accountancy Act or the regulations promulgated pursuant to that Act.
Id at 2. With its brief, the TSBPA indicates that it effectively construes section 901.004 to except
a county auditor, when acting in the capacity of county auditor, from the regulation of the Public
Accountancy Act and regulations and standards adopted thereunder.
"An administrative agency's construction or interpretation of a statute, which the agency is
charged with enforcing, is entitled to serious consideration by reviewing courts, so long as that
construction is reasonable and does not contradict the plain language of the statute." Flores v. Emps.
Ret. Sys., 74 S.W.3d 532, 545 (Tex. App.-Austin 2002, pet. denied). The TSBPA's construction
of section 901.004 does not contradict the plain language ofthe section. The TSBPA's construction
is not unreasonable in that it respects the autonomous nature of the office of county auditor and
balances that office's statutory duties against obligations imposed by the professional standards
adopted by the TSBPA. See TEx. CaNST. art. XVI, § 1 (oath of office); TEx. Lac. GOV'T CODE
ANN. § 84.002 (Vernon 2008) (appointment of auditor by district judges); TEx. Occ. CODE ANN.
§§ 901.156 (Vernon 2004) (authorizing TSBPA to adopt standards ofprofessional conduct), 901.165
(authorizing TSBPA to adopt by reference standards for attest services developed by American
Institute of Certified Public Accountants or other nationally recognized accountancy organization).
Because in our view su,ch a construction is not unreasonable and does not contradict the statute, it
is one to which this office will defer.
The Honorable Rex Emerson - Page 3 (GA-0711)
SUMMARY
In light of, and in deference to, the Texas State Board of
Public Accountancy's view of section 901.004, Occupations Code, a
county auditor who is a certified public accountant may ethically
perform an audit under section 775.082, Health and Safety Code.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128177/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-901
of :
: May 28, 1997
DANIEL E. LUNGREN :
Attorney General :
:
GREGORY L. GONOT :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE RICHARD K. RAINEY, MEMBER OF THE CALIFORNIA STATE
SENATE, has requested an opinion on the following questions:
1. When a county counsel takes a position in favor of the interests of the county
board of supervisors and adverse to the interests of the sheriff, does a conflict of interest thereafter exist
without the county counsel's declaration of such conflict so as to entitle the sheriff to legal representation in
that matter by independent counsel?
2. Assuming a conflict of interest thereafter exists and independent counsel is to be
retained in such circumstances, may the sheriff select the counsel and who would be responsible for the
payment of attorneys' fees?
CONCLUSIONS
1. When a county counsel takes a position in favor of the interests of the county
board of supervisors and adverse to the interests of the sheriff, a conflict of interest may, depending upon the
individual circumstances, thereafter exist without the county counsel's declaration of such conflict so as to
entitle the sheriff to legal representation in that matter by independent counsel.
2. Assuming a conflict of interest thereafter exists and independent counsel is to be
retained in such circumstances, the sheriff may select the counsel and the county board of supervisors would
be responsible for the payment of attorneys' fees.
ANALYSIS
The questions presented for resolution concern the ability of a county sheriff to retain
independent counsel when the county counsel has taken a position adverse to the interests of the sheriff but
has failed to acknowledge the existence of a conflict of interest. As an example, a dispute arises between a
board of supervisors and the sheriff concerning the proper distribution of funds recovered from asset
forfeiture proceedings involving convicted criminals. The dispute may result in litigation between the two
1 of 9
p g g p y g
after the county counsel has advised them of their respective rights. If the sheriff is entitled to independent
counsel under these circumstances, we are further asked whether he may make the selection of his legal
representation and whether the county would be obligated to pay for it.
In answering these questions we will examine the powers and duties of a sheriff, the
relationship of the sheriff's office to county government as a whole, and the role and obligations of the county
counsel. As the request concerns a sheriff's need for and right to counsel in advance of any litigation which
he may initiate, we do not analyze herein statutes that pertain to the obligation of the county to provide for
the defense of civil actions or proceedings brought against a county officer in his official or individual
capacity for acts or omissions within the scope of employment. (See Gov. Code, §§ 825, 995, 995.2, 996.4.)
Footnote No. 1
1. Undeclared Conflict of Interest
First, with respect to the office of the sheriff, the Constitution provides: "The Legislature
shall provide for county powers, an elected sheriff, an elected district attorney, an elected assessor, and an
elected governing body in each county. . . ." (Cal. Const., art. XI, § 1, subd. (b).) In addition, the Constitution
authorizes charter counties to have: "An elected sheriff, an elected district attorney, an elected assessor, other
officers . . . ." (Cal. Const., art. XI, § 4, subd. (c).) For purposes of the issues presented herein, we may treat
charter counties similarly to general law counties. (See Dibb v. County of San Diego (1994) 8 Cal. 4th 1200,
1206-1208.)
A county public officer, such as sheriff (§ 24000, subd. (b)), has only such powers as have
been conferred by law, expressly or by implication. (77 Ops.Cal.Atty.Gen. 242, 243-244 (1994) [county
recorder]; 72 Ops.Cal.Atty.Gen. 51, 52 (1989) [county auditor]; 68 Ops.Cal.Atty.Gen. 223, 224 (1985)
[county tax collector]; 65 Ops.Cal.Atty.Gen. 321, 325 (1982) [county recorder]; 62 Ops.Cal.Atty.Gen. 504,
508 (1979) [county tax collector].) "Because the sheriff . . . is a constitutional officer, his duties are of
state-wide importance, a fact further cemented by the existence of myriad statutes regulating his duties."
(Beck v. County of Santa Clara, (1988) 204 Cal. App. 3d 789, 800.) The basic statutory scheme defining the
powers and duties of a sheriff (§§ 26600-26778) expressly authorizes him to investigate public offenses and
arrest and take before a magistrate all persons who have committed an offense. (§§ 26601, 26602; see
77 Ops.Cal.Atty.Gen. 82, 85 (1994).) Also, the sheriff "shall take charge of and be the sole and exclusive
authority to keep the county jail and the prisoners in it. . . ." (§ 26605; see Board of Supervisors v. Superior
Court (1995) 33 Cal. App. 4th 1724, 1738-1739.)
With respect to the statutory duties of a county board of supervisors, section 23005 states:
"A county may exercise its powers only through the board of supervisors or through agents and officers
acting under authority of the board or authority conferred by law." (See 77 Ops.Cal.Atty.Gen., supra, 83.)
The board of supervisors has specific oversight and budgetary authority with respect to the operations of the
sheriff's office, as long as it does not obstruct the sheriff's investigative function. Section 25303 states:
"The board of supervisors shall supervise the official conduct of all county officers,
and officers of all districts and other subdivisions of the county, and particularly insofar as the
functions and duties of such county officers and officers of all districts and subdivisions of the
county relate to the assessing, collecting, safekeeping, management, or disbursement of public
funds. It shall see that they faithfully perform their duties, direct prosecutions for delinquencies,
and when necessary, require them to renew their official bond, make reports and present their
books and accounts for inspection.
"This section shall not be construed to affect the independent and constitutionally and
statutorily designed investigative and prosecutorial functions of the sheriff and district attorney
of a county. The board of supervisors shall not obstruct the investigative function of the sheriff
f h h ll i b h i i i d i lf i f h di i
2 of 9
of the county nor shall it obstruct the investigative and prosecutorial function of the district
attorney of a county.
"Nothing contained herein shall be construed to limit the budgetary authority of the
board of supervisors over the district attorney or sheriff.
In 77 Ops.Cal.Atty.Gen., supra, 82, we were asked whether a board of supervisors could determine the
manner in which the sheriff's budget allotment could be spent, including the manner in which personnel
would be assigned. We stated:
"In our view, it is clear that control by a board of supervisors over the manner in
which funds allocated to the sheriff and district attorney are to be expended, including the
assignment of personnel, would impair the exercise by those officers of their constitutionally and
statutorily defined powers. Such supervisory control would directly conflict with the admonition
that `the board has no power to perform county officers' statutory duties for them or direct the
manner in which duties are performed . . . .' (Hicks v. Board of Supervisors, supra, 69
Cal.App.3d at 242; see also People v. Langdon (1976) 54 Cal. App. 3d 384, 388-390 [county
clerk].) Consistent with the Hicks rationale, the Supreme Court has recently ruled that the
supervisory authority of a board of supervisors over the county assessor is limited to ensuring the
faithful performance of the duties of that office, and does not permit the board to control, directly
or indirectly, the manner in which the duties are performed. (Connolly v. County of Orange
(1992) 1 Cal. 4th 1105, 1113, fn.9.)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"In sum, the distinction to be drawn is between the power of a board of supervisors to
appropriate county funds and the power of a sheriff or district attorney to manage the
expenditure of the funds so appropriated. The grant of authority given to a board of supervisors
by the Legislature is unaffected by allowing the sheriff and district attorney to perform their
constitutional and statutory duties. A board's specific responsibility to `provide for the number,
compensation, tenure, appointment and conditions of employment of county employees' (§
25300) is simply an inherent aspect of the preparation and adoption of the county's budget,
which in turn is an indispensable prerequisite to a valid tax levy, a clearly legislative function.
[Citations.] However, the budget process is integral and complete upon adoption of the budget; it
does not encompass the management of budgetary resource allotments the responsibility for
which is conferred by the Constitution or laws upon other county officers either expressly or by
necessary implication. [Citations.] Consequently, a board's authority to provide `conditions of
employment' (§ 25300) cannot be interpreted to confer ongoing control over the actions to be
taken by personnel previously assigned to the sheriff or district attorney." (Id., at pp. 88-89.).
Recently in Dibb v. County of San Diego, supra, 8 Cal. 4th 1200, the Supreme Court
examined whether the board of supervisors of a charter county could establish a citizens board ("CLERB") to
review public complaints filed against the county sheriff and probation departments. The court stated in part:
"Section 25303 requires a county board of supervisors to `supervise the official
conduct of all county officers, and officers of all districts and other subdivisions of the county,
and particularly insofar as the functions and duties of such county officers . . . relate to the
assessing, collecting, safekeeping, management, or disbursement of public funds.' (Italics added.)
The statute specifies that the `independent and constitutionally and statutorily designated
investigative and prosecutorial functions of the sheriff and district attorney' shall not be
`affect[ed]' or `obstruct[ed]' by the board of supervisors' oversight.
"Plaintiff asserts section 25303 gives the board of supervisors only the authority to
3 of 9
Plaintiff asserts section 25303 gives the board of supervisors only the authority to
monitor the fiscal conduct of county officers. Although the statute stresses the need for such
supervision, it is plainly not so limited. Indeed, as one court has observed in a different context,
the statute permits the board of supervisors to `supervise county officers in order to insure that
they faithfully perform their duties . . . ." [Citation.] Indeed, the operations of the sheriff's and
probation departments and the conduct of employees of those departments are a legitimate
concern of the board of supervisors. As the Court of Appeal observed below: `Review of citizen
complaints and peace officer-related deaths might suggest the need for new or different types of
training for personnel in the two departments which the [board of supervisors] would have to
fund. Politically the [board of supervisors] might be concerned about public distrust of
investigations conducted by either the sheriff or district attorney and hopeful that investigations
by a group not aligned with law enforcement would restore public confidence, particularly if that
group reached conclusions consistent with the sheriff and district attorney.'
"Plaintiff next asserts the very existence of the CLERB is preempted by or otherwise
in conflict with state law. He argues the CLERB will inevitably obstruct and infringe on the
investigative functions of the sheriff (see Pen. Code, § 832.5, subd. (a) [mandating establishment
by sheriff of `procedure to investigate citizens' complaints' against sheriff personnel]) and district
attorney, and the constitutional oversight of the Attorney General over the sheriff (see Cal.
Const., art. V, § 13 [Attorney General has `direct supervision over every district attorney and
sheriff']). We agree with the Court of Appeal that these concerns are answered by section 25303
and San Diego County Administrative Code article XVIII, section 340.15, under which the board
operates. The cited statewide statute, as noted above, specifies that the board of supervisors'
oversight responsibility `shall not obstruct the investigative function of the sheriff of the county
nor shall it obstruct the investigative and prosecutorial function of the district attorney of a
county.' (§ 25303.) The cited county code section requires CLERB to `cooperate and coordinate'
with the sheriff and district attorney so that all three may properly discharge their
responsibilities. (San Diego County Admin. Code, art. XVIII, § 340.15.) Given these
requirements, we assume the CLERB will not interfere with the proper functioning of the two
other county officials, or with the Attorney General's constitutional responsibility to oversee the
sheriff. [Citations.]
"We conclude that under section 25303, the board of supervisors has a statutory duty
to supervise the conduct of all county officers. [Citation.] Moreover, section 31000.1 permits the
board of supervisors to establish a commission of citizens to study and report on matters within
the board's `general or special interest.' It follows that the creation and existence of the CLERB
is authorized by statute, and is thus a proper exercise of charter county authority under California
Constitution, article XI, section 4, subdivision (h)." (Id., at pp. 1209-1210; fns. omitted.)
With respect to the county counsel, section 26526 provides that "[t]he county counsel . . . is
the legal advisor of the board of supervisors. . . ." The county counsel's other major function is to "defend or
prosecute all civil actions or proceedings in which the county or any of its officers is concerned or is a party
in his or her official capacity." (§ 26529.) In Harvey v. County of Butte (1988) 203 Cal. App. 3d 714, the court
summarized the duties of the county counsel in providing civil legal services to county officers:
"The statutes which govern the provision of civil legal services to counties are
contained in the Government Code. Unless otherwise provided, the district attorney, an officer of
the county (§ 24000, subd. (a)), is charged with providing civil legal services to county
government, e.g. defending and prosecuting litigation (§ 26521), advising the board of
supervisors (§ 26526), and providing written opinions to county and district officers on matters
pertaining to their duties (§ 26520).
"The county may appoint a county counsel to perform such services pursuant to the
4 of 9
y y pp y p p
authority of a county charter (Cal. Const., art. XI, § 4, subd. (c)) or statute (§ 27640). In either
event, the county counsel supplants the district attorney in the provision of civil legal services.
(§§ 27642, 26529.) If the board of supervisors appoints a county counsel pursuant to section
27640, it `shall furnish the county counsel with such assistants as will enable him to perform
properly the duties of his office.' (§ 27644.) Such an appointment is for a four-year term during
which the county counsel may only be removed for cause. (§ 27641.) . . . .
"Notwithstanding these provisions a county is authorized to contract with private
counsel for specified legal services.
"A board of supervisors, by a two-thirds majority vote, may employ counsel to assist
the county counsel in the conduct of litigation. (§ 25203.) The board may also contract for
special services, including legal services. (§ 31000.) Lastly, section 31001.4 provides that in a
county where the charter does not create an office of county counsel the board of supervisors
may contract with counsel to assist the district attorney in providing representation and advice to
county officers . . . ." (Id., a pp. 720-721; fns. omitted.)
Although the county counsel generally represents county government as a whole, on
occasion two county public offices or officers may have adverse interests in the same matter. If each office or
officer is considered a "client," the Rules of Professional Conduct of the State Bar of California ("Rules")
may preclude representation of one or both of the parties by the county counsel. Rule 3-310 provides in part:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(C) A member shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the interests of
the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in which the
interests of the clients actually conflict; or
(3) Represent a client in a matter and at the same time in a separate matter accept as a
client a person or entity whose interest in the first matter is adverse to the client in the first
matter.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(E) A member shall not, without the informed written consent of the client or former
client, accept employment adverse to the client or former client where, by reason of the
representation of the client or former client, the member has obtained confidential information
material to the employment.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."
We recently applied Rule 3-310 in determining whether a county counsel may give legal advice to a board of
retirement established under the County Employees Retirement Law of 1937 (§§ 31450-31898) with respect
to a matter in which the county could benefit from an action taken pursuant to such advice. (80
Ops.Cal.Atty.Gen. 36 (1997).) We concluded that the county counsel could advise the board even if the
board and the county had an actual or potential conflict of interest, if each gave its informed written consent
as specified in Rule 3-310. We quoted from Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7
Cal. 4th 525, 548, as follows:
5 of 9
"`This court's statement of an attorney's duty of loyalty to the client over 60 years ago
is still generally valid: "It is . . . an attorney's duty to protect his client in every possible way, and
it is a violation of that duty for him to assume a position adverse or antagonistic to his client
without the latter's free and intelligent consent. . . . By virtue of this rule an attorney is precluded
from assuming any relation which would prevent him from devoting his entire energies to his
client's interests." (Anderson v. Eaton (1930) 211 Cal. 113, 116.)'" (Id., at p. 38.)
In Civil Service Com. v. Superior Court (1984) 163 Cal. App. 3d 70, the court considered
whether a county counsel could represent the county in pending litigation between the county and the
county's civil service commission where the county counsel had previously advised the commission
regarding the matter. In analyzing the attorney-client relationships involved, the court stated:
"We are able to accept the general proposition that a public attorney's advising of a
constituent public agency does not give rise to an attorney-client relationship separate and
distinct from the attorney's relationship to the overall governmental entity of which the agency is
a part. Nonetheless we believe an exception must be recognized when the agency lawfully
functions independently of the overall entity. Where an attorney advises or represents a public
agency with respect to a matter as to which the agency possesses independent authority, such
that a dispute over the matter may result in litigation between the agency and the overall entity, a
distinct attorney-client relationship with the agency is created." (Id., at p. 78.)
In explaining its decision to disqualify the county counsel from representing the county, the court stated:
"Our statement that there may be an independent basis to disqualify the county
counsel is grounded on the general rule that an attorney may simply not undertake to represent
an interest adverse to those of a current client without the client's approval. [Citations.] This
record establishes the relationship between county counsel and the Commission is an ongoing
one with respect to matters other than the one at issue here. The principle precluding
representing an interest adverse to those of a current client is based not on any concern with the
confidential relationship between attorney and client but rather on the need to assure the
attorney's undivided loyalty and commitment to the client. [Citations.]
"The attorney who represents a client with interests adverse to another current client
encounters the very real danger `that he will be tempted, perhaps unconsciously, to favor the
interests of a particularly important client over the adverse or potentially adverse interests of a
less favored client.' [Citation.] Here there is every reason to believe that county counsel would be
tempted to favor the interests of the County in giving advice to the Commission. The
Commission's primary, if not sole function, is to pass judgment on the conduct of the County
toward its employees. Every Commission decision has the potential of being adverse to one of
the County's constituent agencies. Because county counsel is directly responsible to the board of
supervisors, it is difficult to conceive how any member of the county counsel's office can render
independent advice to the Commission. The structure of the system would appear necessarily to
skew such advice in favor of the County and against the county employees. And even in those
circumstances where county counsel renders advice to the Commission favoring the employee,
such advice places him in a position adverse to his client, the County." (Id., at pp. 78-79, fn. 1.)
The court, however, expressly limited its holding:
"While we have determined that county counsel must be disqualified from
representing the County in this case, we wish to indicate the limits of our holding. First, it should
again be emphasized that a conflict of this nature only arises in the case of and to the extent that
a county agency is independent of the County such that litigation between them may ensue.
S d di lifi ti f t li t il d t di f t i l i
6 of 9
Second, disqualification of county counsel is not necessarily mandated in future cases involving
quasi-independent agencies. We have noted that a fundamental conflict arises whenever county
counsel is asked to represent both the Commission and the County. Moreover, it is clear from the
course of this case that county counsel, with good reason, views his primary responsibility as
being to the board of supervisors. If the Commission is afforded access to independent legal
advice, however, there is no reason county counsel may not continue to vigorously represent the
County even when such representation results in litigation against the Commission. We need not
and do not decide whether the Commission, appropriately informed and advised in a given case,
could validly waive the conflict at the advisory stage." (Id., at pp. 84-85; fn. omitted.)
Returning to the respective roles of a sheriff and a board of supervisors in light of the
principles stated above, we find that the sheriff possesses independent authority as to his investigative
function, jail-keeping duties, personnel assignments, and allocation of budgeted funds. A dispute or
disagreement involving any of these areas could result in litigation between the sheriff and the board of
supervisors. When the sheriff asks the county counsel for legal advice pertaining to his actions or plans in
one of these areas and such advice is rendered, an attorney-client relationship is created that is separate and
distinct from the county counsel's relationship to the county as a whole. Depending upon the circumstances,
the sheriff would be entitled to independent counsel for advice and representation.
We do not view the county counsel's declaration of a conflict as a necessary prerequisite to a
sheriff's entitlement to independent counsel. Normally, of course, the county counsel would declare a
conflict. However, if he does not, the sheriff may do so in appropriate circumstances. (See Municipal Court
v. Bloodgood (1982) 137 Cal. App. 3d 29 [judge entitled to representation due to a declared conflict of
interest; judge as well as county counsel may make the declaration].)
We recognize that the sheriff's "outside" or "independent" counsel may come from within
the county counsel's office when a conflict of interest is present. This would be accomplished through
procedures establishing an "ethical wall." In People v. Christian (1996) 41 Cal. App. 4th 986, 998, the court
observed:
"As the Court of Appeal explained in In re Lee G., supra, 1 Cal.App.4th at page 28,
disqualification of public sector attorneys should proceed with caution since such
disqualifications can result in increased public expenditures for legal representation. `Where
only speculative or minimal benefit would be obtained by disqualification of public counsel, the
"dislocation and increased expense of government" is not justified. [Citation.]' (Ibid.; see also
Castro v. Los Angeles County Bd. of Supervisors, supra, 232 Cal.App.3d at p. 1442.) . . . .
"Thus, in the public sector, in light of the somewhat lessened potential for conflicts of
interest and the high public price paid for disqualifying whole offices of government-funded
attorneys, use of internal screening procedures or `ethical walls' to avoid conflicts within
government offices, such as those found acceptable in Castro, have been permitted. (See, e.g.,
People v. Clark (1993) 5 Cal. 4th 950, 999-1000; People v. Hernandez (1991) 235 Cal. App. 3d
674, 681; People v. Lopez (1984) 155 Cal. App. 3d 813, 827; Love v. Superior Court, supra, 111
Cal.App.3d at p. 374.)" (Fn. omitted.)
The primary purpose of establishing an "ethical wall" is to prevent confidential information from being given
to opposing counsel. (See People v. Clark (1993) 5 Cal. 4th 950, 1000; People v. Hernandez (1991) 235
Cal. App. 3d 674, 680-681; People v. Lopez (1984) 155 Cal. App. 3d 813, 826-827.) This purpose may be
served without having to establish separate units within an office (see People v. Christian, supra, 41 Cal.4th
at 998-999; Howitt v. Superior Court (1992) 3 Cal. App. 4th 1575, 1586-1587), since the ethical duty not to
have impermissible contacts with opposing counsel "is well known to all attorneys" (Castro v. Los Angeles
County Bd. of Supervisors (1991) 232 Cal. App. 3d 1432, 1442). When an ethical wall is properly established,
taxpayer funds need not be spent to hire counsel outside of the county counsel's office
7 of 9
taxpayer funds need not be spent to hire counsel outside of the county counsel s office.
We conclude in answer to the first question that when a county counsel takes a position in
favor of the interests of the county board of supervisors and adverse to the interests of the sheriff, a conflict
of interest may, depending upon the individual circumstances, thereafter exist without the county counsel's
declaration of such conflict so as to entitle the sheriff to legal representation in that matter by independent
counsel.
2. Selection and Payment of Outside Counsel
We next consider the procedures to be followed when the county counsel has a conflict of
interest and no "ethical wall" has been established. Section 31000 is the only statute that expressly provides
for the county's employment of outside counsel other than in the defense of a civil action or proceeding
brought against the officer on account of an act or omission in the scope of his employment. Section 31000
states:
"The board of supervisors may contract for special services on behalf of the following
public entities: the county, any county officer or department, or any district or court in the
county. Such contracts shall be with persons specially trained, experienced, expert and
competent to perform the special services. The special services shall consist of services, advice,
education or training for such public entities or the employees thereof. The special services shall
be financial, economic, accounting (including the preparation and issuance of payroll checks or
warrants), engineering, legal, medical, therapeutic, administrative, architectural, airport or
building security matters, laundry services or linen services. They may include maintenance or
custodial matters if the board finds that the site is remote from available county employee
resources and that the county's economic interests are served by such a contract rather than by
paying additional travel and subsistence expenses to existing county employees. The board may
pay from any available funds such compensation as it deems proper for these special services.
The board of supervisors may, by ordinance, direct the purchasing agent to enter into contracts
authorized by this section within the monetary limit specified in Section 25502.5 of the
Government Code." (Italics added.)
In Jaynes v. Stockton (1961) 193 Cal. App. 2d 47, the court held that a school district was not authorized to
employ outside counsel to obtain advice when the services of county counsel were available. In Harvey v.
County of Butte (1988) 203 Cal. App. 3d 714, 724, the court stated: "Jaynes holds that there is no authority to
contract for outside legal services unless such authority is expressly conferred on the contracting agency or
the services are unavailable `in house' for reasons beyond the agency's control." Accordingly, "if the county
counsel is assigned the duty to provide certain legal services, that allocation should not be undercut by
contracts with outside counsel unless necessary." (Ibid.)
We have already concluded that a conflict of interest on the part of the county counsel may
make it "necessary" for the sheriff to receive outside counsel when his independent authority would be
impaired by the position taken by the county counsel. If a request for the employment of such services at
county expense is made by the sheriff, the board of supervisors has the statutory authority to comply with the
request. (§ 31000; cf. § 29601 [expenses of the sheriff which constitute county charges].)
With respect to the sheriff's authority to select the outside counsel, if a public officer is
charged by statute with carrying out a duty, he or she has the additional powers that may be fairly implied
from the statute to accomplish the duties expressly delegated. (Dickey v. Raisin Proration Zone No. 1 (1944)
24 Cal. 2d 796, 810; Stackler v. Department of Motor Vehicles (1980) 105 Cal. App. 3d 240, 245.) Thus a
sheriff may be impliedly entitled to select outside counsel in order to perform his duties when a conflict of
interest arises.
8 of 9
Moreover, because of the sheriff's direct responsibility to the voters and his need for
authority commensurate with that responsibility, he may be deemed to possess an inherent power to select
private counsel in order to protect his ability and right to carry out the organic functions and responsibilities
of his office. (See Barnett v. Hunt (1963) 223 Cal. App. 2d 251 [school district, deprived of representation by
district attorney's declaration of conflict of interest in proceeding to change the district's boundaries, entitled
to private counsel to oppose the boundary change].)
The authority of the sheriff to select outside legal counsel on the basis of an implied or
inherent power parallels the statutory power of a judge of a municipal or superior court "to obtain his own
counsel" when a conflict of interest is declared. (§ 27648; see Municipal Court v. County of Placer (1988)
200 Cal. App. 3d 1173, 1177-1179; Municipal Court v. Bloodgood, supra, 137 Cal.App.3d at 40-41.)
As for the county's responsibility to pay attorneys' fees, we note that the Supreme Court has
recently held that a county clerk was entitled to the reimbursement of attorneys' fees under section 26259
when a conflict of interest prevented the county counsel from representing her in challenging a superior
court's local rule transferring her duties as a superior court clerk to a superior court executive officer.
(Anderson v. Superior Court (1995) 11 Cal. 4th 1152.) The court explained:
"Under section 26529, county counsel must defend or prosecute all civil actions in
which the county or any of its officers is a party `in his or her official capacity.' County counsel
declined to prosecute petitioner's suit because of a conflict: he had earlier advised the board of
supervisors that the challenged transfer of duties would be legal. The Court of Appeal
unanimously held that despite the outcome of the suit, petitioner was entitled to attorney fees
under section 26529.
". . . When petitioner was elected county clerk, she was obligated to act as ex officio
clerk of the superior court. In seeking to retain those duties, she sued in her official capacity, and
is entitled to reimbursement under section 26529." (Id., at p. 1162.)
The circumstances in Anderson are similar to those in which a sheriff may require the assistance of outside
counsel when the county counsel has a conflict of interest and the sheriff's independent authority would be
impaired by the position taken by the county counsel. Where the county counsel is statutorily required but
unable to provide the legal representation needed by the sheriff, the board of supervisors has an obligation
and duty to pay the attorneys' fees of outside counsel selected by the sheriff.
As previously indicated, however, the board of supervisors has plenary authority over the
county's budget, including expenses incurred by the sheriff. The board must be able to ensure that the sheriff
hires competent counsel at a rate that is appropriate for the type of expertise required. (§§ 25303, 31000.)
Therefore, with due regard for the criteria set forth in section 31000, the board may determine the appropriate
hourly rate or other fee structure for the employment of outside counsel selected by the sheriff.
We conclude in answer to the second question that when a conflict of interest exists and
independent counsel is to be retained for the sheriff, the sheriff may select the counsel and the board of
supervisors would be responsible for the payment of attorneys' fees.
*****
Footnote No. 1
All undesignated section references hereafter are to the Government Code.
9 of 9 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128206/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 16,2010
Mr. Robert Scott Opinion No. GA-0759
Commissioner of Education
Texas Education Agency Re: Authority of a licensing agency to obtain
1701 North Congress Avenue criminal history information regarding an applicant
Austin, Texas 78701-1494 (RQ-0820-GA)
Dear Mr. Scott:
In 2009, the Legislature enacted subchapter D of chapter 53 of the Texas Occupations Code,
which authorizes a potential applicant for a business, professional, or occupational license I to request
from the licensing authority a criminal history2 evaluation letter regarding the person's eligibility for
the license. See Act of May 31, 2009, 81st Leg., RS., ch. 616, § 1,2009 Tex. Gen. Laws 1400,
1401. The statute is intended to permit applicants with a criminal history to find out whether that
history makes them ineligible for a license before expending time, effort, or money for training or
taking a licensing examination. 3
You seek our advice about the Texas Education Agency's (the "TEA") authority under
subchapter D to require a potential applicant seeking a criminal history evaluation letter to submit
IChapter 53 does not apply to certain persons and licenses, such as licenses issued by or under the authority of
the Supreme Court of Texas. See TEX. OCC. CODE ANN. § 53.002(1) (Vernon Supp. 2009).
2The statute does not define "criminal history" or "criminal history information"; nor does it suggest that the
meaning of those terms is limited to "criminal history record information" ("CHRI") as defined, for instance, in
Government Code section 411.082(2). See id §§ 53.101-.105; TEx. GOV'T CODE ANN. § 411.082(2) (Vernon 2005)
(defming CHRI as "information collected about a person by a criminal justice agency that consists of identifiable
descriptions and notations of arrests, detention, indictments, informations, and other formal criminal charges and their
dispositions").
3See TEx. OCC. CODE ANN. §§ 53.102, .104 (Vernon Supp. 2009); see also SENATE RESEARCH CENTER, BILL
ANALYSIS, Tex. H.B. 963, 81stLeg., R.S. (2009) (explaining that the legislation requires licensing authorities to "create
a ... process by which applicants with a criminal background may request a criminal history evaluation letter to
determine the applicant's eligibility for licensure prior to beginning occupational training or investing in a licensing
examination").
Mr. Robert Scott - Page 2 (GA-0759)
"complete information to allow investigation" and TEA's duty to consider "all facts involved in the
criminal history at the time of issuing" the letter. 4
The TEA, you inform us, evaluates applicants for a public school educator certificate and
resolves "issues involving criminal history and other conduct that may have an effect on fitness to
hold a Texas educator certificate" for the State Board for Educator Certification (the "SBEC").
Request Letter at 1; see also TEx. EDUC. CODE ANN. § 21.035 (Vernon Supp. 2009) ("The [TEA]
shall provide the [SBEC], s administrative functions and services."). "The SBEC is the agency
responsible for the licensing and discipline of certified educators in Texas." Lake Travis Indep. Sch.
Dist. v. Lovelace, 243 S.W.3d 244, 248 n.2 (Tex. App.-Austin 2007, no pet.).5 As a licensing
agency, the SBEC is subject to subchapter D of chapter 53 of the Occupations Code requiring a
licensing authority to determine a potential applicant's eligibility in response to a request seeking
a criminal history evaluation letter. See TEx. Dcc. CODE ANN. §§ 53.101(1)-(2) (Vernon Supp.
2009) (defining "license" and "licensing authority"), 53.1 02 (authorizing request), 53.103 (providing
authority to investigate), 53.104 (requiring licensing authority to make a determination of eligibility
or ineiigibiiity).
Section 53.102 in subchapter D provides that:
(a) A person may request a licensing authority to issue a criminal
history evaluation letter regarding the person's eligibility for a license
issued by that authority if the person:
(1) is enrolled or planning to enroll in an educational program
that prepares a person for an initial license or is planning to take an
examination for an initial license; and
(2) has reason to believe that the person is ineligible for the
license due to a conviction or deferred adjudication for a felony or
misdemeanor offense.
(b) The request must state the basis for the person's potential
ineligibility.
Id § 53.102.
4See Request Letter at 1-3 (available at http://www.texasattorneygeneral.gov). You specifically note that the
legislation enacting subchapter D requires an entity subject to its provisions to "adopt rules necessary to administer
Subchapter D" no later than September 1,2010. Act of May 31,2009, 81st Leg., R.S., ch. 616, § 2, 2009 Tex. Gen.
Laws 1400, 1401; see Request Letter at 1. However, you do not ask about any particular or proposed rules.
5Chapter 21 of the Education Code establishes the SBEC, which is responsible for regulating and overseeing
"all aspects of the certification, continuing education, and standards of conduct of public school educators." TEX. EDUC.
CODE ANN. § 21.031(a) (Vernon 2006); see also id § 21.003(a) (Vernon Supp. 2009) (providing that a school district
may not employ a person as an educator unless the person is certified or issued a permit by the SBEC).
Mr. Robert Scott - Page 3 (GA-0759)
In response to such a request, section 53.104 requires a licensing authority to issue a notice
or a letter regarding the persons eligibility:
(a) If a licensing authority determines that a ground for ineligibility
does not exist, the authority shall notify the requestor in writing of the
authority's determination on each ground of potential ineligibility.
(b) If a licensing authority determines that the requestor is ineligible
for a license, the licensing authority shall issue a letter setting out
each basis for potential ineligibility and the authority's determination
as to eligibility. In the absence of new evidence knownto but not
disclosed by the requestor or not reasonably available to the licensing
authority at the time the letter is issued, the authority's ruling on the
request determines the requestor's eligibility with respect to the
grounds for potential ineligibility set out in the letter.
(c) A licensing authority must provide notice under Subsection (a)
or issue a letter under Subsection (b) not later than the 90th day after
the date the authority receives the request.
Id. § 53.104.
Your first question asks: "Mayan agency require a potential applicant seeking a criminal
history evaluation letter to submit an application containing complete information to allow
investigation?" Request Letter at 2. You do not explain what you mean by "complete information"
or "investigation," nor identify the legal basis of your concern.
We consider first whether any provision in subchapter D restricts the information that a
licensing authority may ask a requestor seeking a criminal history evaluation letter to submit.
Section 53.1 02(a) authorizes a request for a "criminal history evaluation letter" if the requestor "has
reason to believe that the person is ineligible for the license due to a conviction or deferred
adjudicationfor afelony or misdemeanor offense." TEx. Occ. CODE ANN. § 53.102 (a)(2) (Vernon
Supp. 2009) (emphasis added). Additionally, section 53.1 02(b) requires the request to "state the
basis for the person's potential ineligibility." Id. § 53.102(b). While subsection (b), when read in
conjunction with subsection (a), requires a statement of at least the conviction or deferred
adjudication for the offense that may potentially render the requestor ineligible, the plain language
of the statute does not limit the request to providing only that information. See Lelandv. Brandal,
257 S.W.3d 204,206 (Tex. 2008) ("If the statute's language is unambiguous, its plain meaning will
prevail."). Section 53.102 does not restrict the information that may be required in a request to a
statement of the conviction or deferred adjudication that may be the grounds for the potential
ineligibility.
We next consider the express responsibilities and powers conferred on the SBEC as a
licensing authority under subchapter D and its implied powers reasonably necessary to carry out
Mr. Robert Scott - Page 4 (GA-0759)
those express powers and responsibilities. See Tex. Mun. Power Agency v. Pub. Uti!. Comm 'n, 253
S.W.3d 184, 192-93 (Tex. 2007) (stating that a legislatively created state agency has the powers
expressly conferred on it by the Legislature and '''implied powers that are reasonably necessary to
carry out the express responsibilities given to it by the Legislature'" (quoting Pub. Uti!. Comm 'n v.
City Pub. Servo Rd., 53 S.W.3d 310,315 (Tex. 2001»). In response to a section 53.102 request,
section 53.104 expressly imposes on a licensing authority the responsibility to determine eligibility
with respect to the grounds of ineligibility set out in the request. See TEx. OCC. CODE ANN.
§ 53.104(a)-(b) (Vernon Supp. 2009). Additionally, section 53.103 expressly provides that a
"licensing authority has the same powers to investigate a request [for a criminal history evaluation
letter] submitted under this subchapter [D] and the requestor's eligibility that the authority has to
investigate a person applying for a license." Id § 53.1 03 (emphasis added). Subchapter D does not
define the term "investigate," and we do not find a relevant judicial definition of the term.
Undefined terms are typically given their ordinary meaning. See TEx. GOV'T CODE ANN.
§ 311.011(a) (Vernon 2005); Monsanto Co. v. Cornerstones Mun. Uti!. Dist., 865 S.W.2d 937, 939 0
(Tex. 1993). The ordinary meaning of the term "investigate" is to "carry out a systematic or formal
inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the
truth[.]" THE NEW OXFORD AMERICAN DICTIONARY 893 (2001). Applying this ordinary meaning,
a licensing authority has the same authority to discover and examine facts with respect to a request
for a criminal history evaluation letter as it has with respect to an applicant for a license. Thus, we
believe the SBEC's authority to investigate encompasses the authority to obtain more information
than just the fact ofthe conviction or deferred adjudication for a felony or misdemeanor offense. For
instance, under Education Code section 22.082, the SBEC is specifically empowered to obtain "from
any law enforcement or criminal justice agency all criminal history record information and all
records contained in any closed criminal investigation file that relate to a specific applicant for or
holder ofa certificate." TEx. EDUC. CODE ANN. § 22.082 (Vernon Supp. 2009).
Significantly, both under chapter 53 ofthe Occupations Code and chapter 21 ofthe Education
Code, the fact of a conviction or deferred adjudication for a felony or misdemeanor offense does not
automatically or by itself render an applicant ineligible for a certificate. A determination of
ineligibility for conviction of a criminal offense is discretionary and requires consideration of
additional information. See TEx. OCC. CODE ANN. §§ 53.021-.23 (Vernon 2004 & SUpp. 2009);
TEx. EDUC. CODE ANN. § 21.060 (Vernon Supp. 2009). Occupations Code section 53.021(a) and
Education Code section 21.060 permit, but do not require, the SBEC to disqualify an applicant based
on a conviction of an offense directly related to the duties and responsibilities of the education
profession or other specifically described offenses. See TEx. Occ. CODE ANN. § 53.021(a) (Vernon
Supp. 2009); TEx. EDUC. CODE ANN. § 21.060 (Vernon SUpp. 2009); see also Tex. Att'y Gen. Op.
No. GA-0614 (2008) at 4-5 (construing section 21.060 to provide a nonexclusive list of offenses and
to create discretionary authority in the SBEC to take action for the listed offenses). Pursuant to
Occupations Code sections 53.022 and 53.023, in determining whether the offense relates to the
profession's duties and responsibilities, the SBEC must consider various factors, including the
following: the seriousness of the offense; the relationship of the offense to the person's fitness to
perform his duties; the extent and nature of the person's criminal activity; and the age of the person
when the crime was committed. See TEx. Oec. CODE ANN. §§ 53.022-.023 (Vernon 2004).
Mr. Robert Scott - Page 5 (GA-0759)
Based on the express powers and responsibilities conferred by Occupations Code chapter 53
and Texas Education Code chapter 21 on the SBEC, we conclude that it has the.implied authority
to require that a request seeking a criminal history evaluation letter contain any information
necessary to allow an investigation and a determination as to eligibility on the basis of the criminal
conviction or deferred adjudication set out in the request. See City Pub. Servo Bd, 53 S.W.3d at 316
("when the Legislature expressly confers a power on an agency, it also impliedly intends that the
agency have whatever powers are reasonably necessary to fulfill its express functions or duties").
What information may be necessary for that purpose is a matter within the reasonable discretion of
the SBEC in the first instance. Cf Tex. Att'y Gen. Op. No. JC-0566 (2002) at 4 (concluding that
"[w]hat otherinformation the SBEC may deem sufficient for the purpose of [its certification rule]
is a matter within its discretion, so long as that discretion is not exercised arbitrarily and
capriciously" (citing Occidental Permian, Ltd V. R.R. Comm 'n, 47 S.W.3d 801, 806 (Tex.
App.-Austin 2001, no. pet.))).
Your second question asks: "Must an agency consider all facts involved in the criminal
history at the time of issuing a criminal history evaluation letter?" Request Letter at 2. You note that
Occupations Code section 53.1 04(b) "could be read as requiring the licensing agency to evaluate and
make a determination regarding the factual circumstances that led to the conviction." Id. You
provide the following example:
For example, TEA and SBEC have not generally considered a single
conviction for driving while intoxicated to disqualify an applicant.
However, a determination that the offense took place while
transporting students at a school event might result in a denial.
Criminal history records may not have sufficient detail to allow that
type of evaluation.
Id. at 2-3.
If a licensing authority determines that the requestor of a criminal history evaluation letter
is ineligible, section 53.1 04(b) requires the authority to issue a letter and further provides as follows:
In the absence of new evidence known to but not disclosed by the
requestor or not reasonably available to the licensing authority at the
time the letter is issued, the authority's ruling on the request
determines the requestor's eligibility with respect to the grounds for
potential ineligibility set out in the letter.
TEx. Oee. CODE ANN. § 53.104(b) (Vernon Supp. 2009).
In construing subsection (b), we look to its plain language and the purpose of the statute as
a whole, which is to permit potential applicants to find out whether their particular criminal history
makes them ineligible for a license before expending time, effort, or money for training or taking a
licensing examination. See supra note 3; Leland, 257 S.W.3d at 206 (stating that the objective of
Mr. Robert Scott - Page 6 (GA-0759)
statutory construction is to determine the Legislature'S intent, which is determined by the plain
meaning of the statutory words); Helena Chern. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)
(stating that in determining legislative intent, a court may consider "the object sought to be obtained"
and "must always consider the statute as a whole Father than its isolated provisions"). Applying
these statutory construction principles, we read section 53.1 04(b) to contemplate that the licensing
authority's ruling as to eligibility will be determinative with respect to the grounds on which it is
based-the criminal conviction or deferred adjudication for a misdemeanor or felony
offense---except in limited circumstances. The described limited circumstances, i.e., when
information is known to but is not disclosed by the requestor or is not reasonably available to the
agency, contemplate that the agency will obtain all reasonably available information necessary to
make the required determination.
Accordingly, in answer to your second question, we conclude that a licensing authority must
consider all the evidence relevant to the determination of eligibility with respect to the conviction
or deferred adjudication at issue that is reasonably available to the agency at the time of issuing the
criminal history evaluation letter. 6 What information is "reasonably available" in this context is
largely a question of fact-because it will depend on the particular circumstances confronting the
licensing authority-that must necessarily be determined by the licensing authority in the first
instance. See Tex. Att'y Gen. Op. No. GA-0648 (2008) at 7 (explaining that disputed questions of
fact or mixed questions of law and fact cannot be resolved in an attorney general opinion).
6We note that the Legislature recognized that the investigation and evaluation required to detennine eligibility
would impose additional costs as evidenced by Occupations Code section 53.105, which specifically authorizes a
licensing authority to adopt fees that "must be in an amount sufficient to cover the cost of administering the chapter."
TEX. Occ. CODE ANN. § 53.105 (Vernon Supp. 2009); see also Request Letter at 2 ("A requirement to evaluate any
'evidence ... reasonably available' beyond the existence of criminal history could require a licensing agency to commit
significant resources to investigate criminal history records.").
Mr. Robert Scott - Page 7 (GA-0759)
SUMMARY
Subchapter D of chapter 53 of the Texas Occupations Code
authorizes a potential applicant for a business, professional, or
occupational license to request from the licensing authority a criminal
history evaluation letter regarding the person's eligibility for the
license. The State Board for Educator Certification (the "SBEC") is
authorized to require that such a request contain any information
necessary to allow an investigation and a determination as to
eligibility on the basis of the criminal conviction or deferred
adjudication set out in the request. What information may be
necessary for that purpose is a matter within the reasonable discretion
of the SBEC in the first instance.
Under section 53.1 04(b), a licensing authority must consider
all the evidence relevant to the determination of eligibility with
respect to the conviction or deferred adjudication at issue that is
reasonably available to the agency at the time of issuing the criminal
history evaluation letter. What information is "reasonably available"
in this context is largely a question of fact that must necessarily be
determined by the licensing authority in the first instance.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
SheelaRai
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128219/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-701
of :
: January 24, 1997
DANIEL E. LUNGREN :
Attorney General :
:
CLAYTON P. ROCHE :
Deputy Attorney General :
:
______________________________________________________________________
THE CALIFORNIA PUBLIC UTILITIES COMMISSION has requested an opinion on the
following question:
Is the California Public Utilities Commission required to discharge an employee who marries an
employee of a regulated utility?
CONCLUSION
The California Public Utilities Commission is required to discharge an employee who marries an
employee of a regulated utility.
ANALYSIS
Section 303 of the Public Utilities Code Footnote No. 1 provides:
"No person in the employ of or holding any official relation to any corporation or
person that is subject in whole or in part to regulation by the commission, and no person owning
stocks or bonds of any such corporation or who is in any manner pecuniarily interested therein
shall be appointed to or hold the office of commissioner or be appointed or employed by the
commission. If any such person becomes the owner of such stocks or bonds or becomes
pecuniarily interested in such corporation otherwise than voluntarily, his office or employment
shall become vacant unless within a reasonable time he divests himself of such ownership or
interest."
We are asked to determine whether the California Public Utilities Commission ("Commission")
must discharge an employee who marries an employee of a regulated utility. Would section 303 apply in such
circumstances, and if so, is the statute constitutional?
Because of California's community property laws, it is evident that an employee of the Commission
who marries an employee of a regulated utility would be "pecuniarily interested" in the utility due to his or
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y g y y y
her spouse's compensation. Furthermore, this interest may not be nullified by an agreement that the spouse's
compensation be treated as his or her separate property, since even separate property is liable for the
necessaries of life of the other spouse. (Fam. Code, § 914; 78 Ops.Cal.Atty.Gen. 230, 237 (1995); 65
Ops.Cal.Atty.Gen. 305, 308 (1982).) In Nielsen v. Richards (1925) 75 Cal. App. 680, for example, the court
concluded that a husband had an interest in the separate property of his wife, so that she had to be discharged
from employment with the county schools where he was the county superintendent. Besides relying upon the
statutory "necessaries of life" obligation (id., at pp. 685-687), the court quoted from an Illinois case as
follows:
". . . `There is, moreover apart from this pecuniary interest, an intimacy of relation and
affection between husband and wife, and of mutual influence of the one upon the other for their
common welfare and happiness, that is absolutely inconsistent with the idea that the husband can
occupy a disinterested position as between his wife and a stranger in a business transaction. He
may, by reason of his great integrity, be just in such a transaction; but unless his marital relations
be perverted, he cannot feel disinterested--and it is precisely because of this feeling of interest
that the law forbids that he shall act for himself in a transaction with his principal.'" (Id., at p.
689.)
The court concluded:
". . . In the case at bar the county of Butte was entitled to the unbiased judgment of the
county school superintendent. Here we have contained not merely the personal and confidential
relation existing between husband and wife, but also the pecuniary advantage which was being
gained by the husband by reason of the contract which we have heretofore specified." (Id., at p.
690.)
More recently, in County of Nevada v. MacMillen (1974) 11 Cal. 3d 662, 676, the court observed that the
separate property of the wife of a public official "might be materially affected by his official actions," since
"[c]ommon sense tells us that . . . he may react favorably, or without total objectivity, to a proposal which
could materially enhance the value of that property."
Accordingly, on its face section 303 would prohibit continued employment by an employee of the
Commission who marries an employee of a regulated utility.
It has been suggested, however, that section 303 has been superseded by the conflict of interest
provisions of the Political Reform Act of 1974 (Gov. Code, § 81000-91015; "Act"). The Act generally
prohibits participation in any governmental action by a public officer or employee in which he or she has a
"financial interest." (See Gov. Code, §§ 82029, 82030, 82048, 87100-87103). Under the Act, in case of a
conflict of interest, only abstention from participation is required. (See Metropolitan Water Dist. v. Fair
Political Practices Com. (1973) 73 Cal. App. 3d 650, 658; Witt v. Morrow (1977) 70 Cal. App. 3d 817; 66
Ops.Cal.Atty. Gen. 156, 161-162 (1983).) Discharge from employment is not necessary.
How do the provisions of the Act affect the requirements of section 303? Government Code section
81013 states:
"Nothing in [the Act] prevents the Legislature or any other local agency from imposing
additional requirements on any person if the requirements do not prevent the person from
complying with [the Act]. If any act of the Legislature conflicts with the provisions of [the Act],
[the Act] shall prevail."
We believe that an additional and more stringent regulation would not present a "conflict" with the Act.
Compliance with the more stringent standard would necessarily constitute compliance with the Act's less
stringent standard (See 62 Ops Cal Atty Gen 90 99-100 (1979) ) In 59 Ops Cal Atty Gen 604 617-618
2 of 6
stringent standard. (See 62 Ops.Cal.Atty.Gen. 90, 99-100 (1979).) In 59 Ops.Cal.Atty.Gen. 604, 617-618
(1976), we faced a similar question concerning the continued viability of Government Code section 1090, a
more stringent regulation than the Act with respect to contractual conflicts of interest. We concluded that the
more stringent requirements remained viable after the Act's adoption in 1974. This conclusion was recently
reinforced by the Court of Appeal in People v. Honig (1996) 48 Cal. App. 4th 289, 330, where the court
explained in part:
". . . [T]he [Act] specifically provides that it is not exclusive. Section 81013 provides:
`Nothing in this title prevents the Legislature or any other state or local agency from imposing
additional requirements on any person if the requirements do not prevent the person from
complying with this title. If any act of the Legislature conflicts with the provisions of this title,
this title shall prevail.' By its terms, additional requirements, such as a prohibition against
making a contract in which one is financially interested, would conflict with the [Act] only if
those requirements prevented the official from complying with the [Act]. Since nothing in
section 1090 would prevent or inhibit an official from complying with the [Act], it cannot be
considered to be in conflict with [the Act]." (Fn. omitted.)
Similarly here nothing in section 303 would prevent or inhibit an officer or employee of the Commission
from complying with the Act's requirements.
No other statutory provision appears applicable to whether the Commission must apply the terms of
section 303 in the present circumstances. We are left, then, with the issue of whether section 303 is
constitutional. In addressing this issue, we note first that section 303 does not prohibit the marriage of anyone
to anyone. The "fundamental right" to marry (see Turner v. Safley (1986) 482 U.S. 78, 94-95; Loving v.
Virginia (1967) 388 U.S. 1, 12; Conservatorship of Valerie N. (1985) 40 Cal. 3d 143, 161; 65
Ops.Cal.Atty.Gen., supra, at 311) is at most incidentally affected by the terms of section 303. The courts
have long sanctioned conflicts of interest prohibitions that might have an indirect impact upon a marriage
relationship. (See Kimura v. Roberts (1979) 89 Cal. App. 3d 871 [wife removed from city planning
commission when husband elected to city council].)
What section 303 does prohibit is an employee's continued employment with the Commission when
the proscribed financial interest is present. Does an employee have a constitutional right to continued public
employment? This question was recently answered in Graham v. Kirkwood Meadows Pub. Util. Dist. (1994)
21 Cal. App. 4th 1631, 1643-1645, where the court stated:
"As to the assertion of a right to continued employment, there is no fundamental
constitutional right to work for, or to have continued employment with, a particular public or
private employer. (Rittenband v. Cory, supra, 159 Cal. App. 3d 410; Kubik v. Scripps College
(1981) 118 Cal. App. 3d 544, 549; Hetherington v. State Personnel Bd. (1978) 82 Cal. App. 3d
582, 589.) . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"`Notwithstanding the principle enunciated in Truax v. Raich (1915) 239 U.S. 33, 41
[60 L. Ed. 131, 135 . . .] that the right to work at a lawful occupation is an essential component of
liberty, the United States Supreme Court consistently has refused to recognize a fundamental
right to particular employment. [Citations.] California courts have followed substantially the
same reasoning, holding [] that there is no fundamental right to work for a particular employer,
public or private. [Citations.]' (Kubik v. Scripps College, supra, 118 Cal.App.3d at p. 549, fn.
omitted [mandatory retirement of college music professor reviewed under rational basis test].)"
In Graham, the court upheld the dismissal of a public employee for not residing within three miles
of his place of employment. The court found the public agency's three-mile requirement to be "reasonably
3 of 6
drawn to effectuate the legitimate purpose of ensuring continued operations in bad weather conditions."
(Graham v. Kirkwood Meadows Pub. Util. Dist., supra, 21 Cal.App.4th at 1642.) Even though the agency's
policy failed "to achieve perfection," the court explained that "the reasonableness of a policy is evaluated
based upon whether it is designed to achieve its legitimate objectives." (Id., at p. 1641.)
As indicated in Graham, what is constitutionally required for a statute such as section 303 is that it
bear a "rational relationship" to a "legitimate governmental objective." In 69 Ops.Cal.Atty.Gen. 191, 197
(1986), we stated:
"Section 1 of the Fourteenth Amendment to the Constitution of the United States
provides inter alia that no state shall deprive any person of life, liberty or property without due
process of law. A virtually identical proscription is found in the California Constitution, article 1,
section 7. The concept of substantive due process requires that a statute must bear a rational
relationship to a legitimate governmental objective. (Williamson v. Lee Optical Co. (1955) 348
U.S. 483, 491.) However, the law need not be in every respect logically consistent with its aims
to be constitutional; the courts will not review the wisdom or providence of state laws regulatory
of business and industrial conditions. (Id. at pp. 487-488; Ferguson v. Skrupa (1963) 372 U.S.
726. 731-732.)" Footnote No. 2
The obvious objective of section 303 is to prevent a Commission officer or employee from acting in
his or her best interests rather than in the best interests of the public. In analyzing Government Code section
1090, the contractual conflicts-of-interest prohibition, the court in People v. Honig, supra, 48 Cal.App.4th at
324-325, observed:
". . . In United States v. Mississippi Valley Generating Co., supra, 364 U.S. 520 [5
L. Ed. 2d 268], in a decision our state courts have often relied upon, the United States Supreme
Court considered a federal conflict-of-interest statute similar to section 1090. There the high
court noted that the federal statute was preventative in nature and was aimed at what might have
happened rather than what actually happened. (364 U.S. at p. 549-550 [5 L.Ed.2d at p. 288].) Its
purpose was to eliminate temptation and to this end spoke in broad, absolute terms, thus
establishing `an absolute standard of conduct.' (Id. at pp. 550, 559 [5 L.Ed.2d at pp. 288-289,
294].) . . .
.....................
"Section 1090, like the federal statute at issue in United States v. Mississippi Valley
Generating Co., supra, establishes an objective and absolute standard of conduct for public
officials. In this context the California Supreme Court long ago noted: `"For even if the honesty
of the agent is unquestioned, and if his impartiality between his own interest and his principal's
might be relied upon, yet the principal has in fact bargained for the exercise of all the skill,
ability, and industry of the agent, and he is entitled to demand the exertion of all this in his own
favor."' (San Diego v. S.D. & L.A.R.R. Co. (1872) 44 Cal. 106, 113.) For over a hundred years
our courts have consistently held that our conflict-of-interest statute, now embodied in section
1090, is intended to enforce the government's right to the absolute, undivided, uncompromised
allegiance of public officials by proscribing any personal interest. (See Thompson v. Call, supra,
38 Cal.3d at p. 648; Stigall v. City of Taft, supra, 58 Cal.2d at p. 569.) To this preventative end,
section 1090 establishes a broad, objective proscription which is violated when an official places
himself in an `ambivalent position' or an `ambiguous situation,' by having any financial interest
in an official contract, and which does not depend upon the actuality of a personal influence on
his decisions."
It may be argued that section 303 should not apply to employees of the Commission who have
clerical or ministerial positions and do not make decisions affecting the regulated utilities in which they have
4 of 6
clerical or ministerial positions and do not make decisions affecting the regulated utilities in which they have
pecuniary interests. Is the prohibition of section 303 too broadly worded? A similar argument was raised in
Vance v. Bradley (1979) 440 U.S. 93, where the court upheld a requirement that participants in the foreign
service retirement system retire from their government positions at age 60. The requirement met the rational
basis test, since it was at least arguable that a significant percentage of people over age 60 might not perform
their duties as foreign service officers as ably as those who were younger. (Id., at p. 111.)
Other cases lend support to applying the terms of section 303 in the proposed circumstances. In
Keely v. State Personnel Board (1975) 53 Cal. App. 3d 88, the court upheld the discharge of a state prison
guard for owning a liquor store. The court agreed that the guard might have a conflict of interest in selling
liquor to parolees knowing that many parole agreements contain a requirement that the parolee either totally
abstain from alcohol or abstain from excess drinking. (Id., at pp. 92-93, 97.)
In Reece v. Alcoholic Bev. etc. Appeals Bd. (1976) 64 Cal. App. 3d 675, the wife of a sheriff's
detective owned a grocery store and cafe as her separate property. Relying upon Nielsen v. Richards, supra,
75 Cal. App. 680, and County of Nevada v. MacMillen, supra, 11 Cal. 3d 662, the court ruled that the
detective had an indirect interest in his wife's business, including the beer and wine license issued for the
premises. (Id., at pp. 682-683.) It concluded that the administrative regulation prohibiting law enforcement
officers from holding liquor licenses applied to the detective, even though he was not assigned to patrol
duties. While the purpose of the regulation was "to prevent a conflict of interest between liquor licensees and
those involved in the enforcement of liquor laws," the court relied upon Keely v. State Personnel Bd., supra,
53 Cal. App. 3d 88, in finding a conflict where the detective's indirect ownership "`might lead to
nonenforcement or lenient enforcement of violations on [the] premises by fellow officers . . . .'" (Id., at p.
682.)
In Kimura v. Roberts, supra, 89 Cal. App. 3d 871, a city planning commissioner was removed from
office because her husband was elected to the city council. She claimed that "her removal from office
pursuant to Ordinance No. 549 violated her rights to be married and to hold public office simultaneously."
(Id., at p. 873.) The court rejected her claim, stating that "there is no doubt that either an actual bias or
conflict of interest, or the appearance thereof, would or could at times be present." (Id., at p. 875.)
In Hobbs, Wall & Co. v. Moran (1930) 109 Cal. App. 316, a city council member was the manager
of a store where the city purchased $250 in supplies. The court rejected the store's claim for payment even
though the supplies "were obtained in perfect good faith at reasonable prices":
". . . As manager of the mercantile business, which employment demanded strict loyalty
to his employer, it may be inferred Dressler, as a councilman, was not free to negotiate a bargain
in behalf of the city as favorable to the municipality as though these conflicting interests did not
exist. Dressler's membership on the council may reasonably be expected to influence his
associates in purchasing supplies for the city. The desire to favor a fellow-councilman,
unwarranted confidence, or carelessness in bargaining for supplies might result in a substantial
loss to the city. It is not necessary to show actual fraud, dishonesty or loss to invalidate the
transaction. The purpose of the statute is to remove all indirect influence of an interested officer
as well as to discourage deliberate dishonesty.
"Nothing in the relationship of a public officer should prevent him from exercising
absolute loyalty and undivided allegiance to the best interest of the municipality he serves.
"Although Mr. Dressler had no greater interest in the transaction than is shown by the
mere agency as business manager of the store from which the supplies were purchased, even
though they were obtained in perfect good faith at favorable prices, still the transaction was void
and the claims were illegally allowed." (Id., at p. 319.)
5 of 6
As the courts have thus indicated, we do not question the wisdom of the Legislature in enacting
section 303, as long as it has a rational relationship to a legitimate governmental objective. Under the statute,
the officials and employees of the Commission who make decisions regarding regulated utilities will not be
influenced by their own pecuniary interests or by supervisors, associates, coworkers, or subordinates who
have pecuniary interests in regulated utilities. The Commission is entitled "to the absolute, undivided,
uncompromised allegiance of" all of its officers and employees without personal financial interests
influencing Commission decisions, whether the influence is from the employee's own personal interest or that
of a coworker. Section 303 is a broad, objective proscription that is violated when the Commission officer or
employee places himself or herself in a financial conflict of interest position. A rational relationship exists
between the terms of section 303 and eliminating the temptation of corrupting pecuniary influences. Footnote
No. 3
In answer to the question presented, therefore, we conclude that the Commission is required to
discharge an employee who marries an employee of a regulated utility.
*****
Footnote No. 1
All references hereafter to the Public Utility Code are by section number only.
Footnote No. 2
The rational basis test would also be applicable if section 303 were challenged on equal protection grounds (U.S.Const.,
14th Amend., § 1 ["No state shall . . . deny to any person within its jurisdiction the equal protection of the laws"];Cal.
Const.art. 1, § 7,subd. (a) ["A person may not be . . . denied equal protection of the laws"]).
(See Heller v. Doe (1993) 509 U.S. 312, 319-321; Graham v. Kirkwood Meadows Pub. Util. Dist., supra, 21 Cal.App.4th at
1642-1646.) We thus need not address separately this constitutional provision.
Footnote No. 3
Of course, the Legislature has the authority to exempt the spousal interest in question from the prohibition of section 303.
For example, in conflicts of interests involving the contractual obligations of public agencies, the Legislature has exempted
a spouse's employment or officeholding if the employment existed for at least one year prior to the election or appointment
of the contracting official. (Gov. Code, § 1091.5, subd. (a)(6); see 69 Ops.Cal.Atty.Gen. 255 (1986); 69 Ops.Cal.Atty.Gen.
102 (1986); 65 Ops.Cal.Atty.Gen. 305 (1982).)
6 of 6 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289024/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
LESLIE WILLIS, : No. 41 WM 2018
:
Petitioner :
:
:
v. :
:
:
COURT OF COMMON PLEAS OF :
ALLEGHENY COUNTY; ALLEGHENY :
COUNTY DEPARTMENT OF COURT :
RECORDS WILLS/ORPHANS' COURT :
DIVISION (PROTHONOTARY), :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 27th day of June, 2018, the Application for Leave to File Original
Process, to the extent it seeks leave to file original process, is GRANTED. The
“Application for Relief/Reply” and the Petition for Writ of Mandamus are DENIED. | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4128282/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 20, 2009
The Honorable Patrick M. Rose Opinion No. GA-0710
Chair, Committee on Human Services
Texas House of Representatives Re: Authority of a water company to paint fire
Post Office Box 2910 hydrants black under certain circumstances
Austin, Texas 78768-2910 (RQ-0750-GA)
Dear Representative Rose:
You request an opinion about Health and Safety Code section 341.0357, which regulates
nonfunctioning or otherwise unavailable fire hydrants. 1 You ask whether under the statute "in order
to paint a device black ... ,[a water] utility [must] first determine the flow of that individual device
to be less than 250 gallons per minute [.],,2 You also ask whether the statute "allow[s] a water utility
to paint all devices within a system black even when the flow from certain devices within that system
exceeds 250 gallons per minute[.]" Request Letter at 1.
Your questions require us to construe section 341.0357. In construing a statute, the objective
is to determine and give effect to the Legislature's intent, which is determined first by looking at the
language of the statute. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). If the statutory
language is unambiguous, its plain meaning prevails. Id Section 341.0357(a) provides in relevant
part:
The owner of any device having the appearance of a fire
hydrant that is located in a place that an entity responsible for
providing fire suppression services in a fire emergency would expect
a fire hydrant to typically be located shall paint the device black ifthe
device is nonfunctioning or otherwise unavailable for use by the
entity providing fire suppression services in a fire emergency.
TEx. HEALTII & SAFETY CODE ANN. § 341.0357(a) (Vernon Supp. 2008). Instead of painting a
device black, an owner may place a black tarp over a device that is temporarily nonfunctioning or
lThere are two provisions codified as section 341.0357 in the Health and Safety Code. See TEx. HEALTH &
SAFETY CODE ANN. § 341.0357 (Vernon Supp. 2008). At issue here is section 341.0357 enacted by Act of May 17,
2007, 80th Leg., R.S., ch. 684, § 1,2007 Tex. Gen. Laws 1264, 1264.
2Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
The Honorable Patrick M. Rose - Page 2 (GA-0710)
temporarily otherwise unavailable for use. Id A device is nonfunctioning, "if the device pumps less
than 250 gallons of water per minute." Id § 341.0357(bV
First, by its terms, section 341.0357 requires an owner to paint black "any device having the
appearance of a fire hydrant" either if the device is nonfunctioning or "otherwise unavailable for
use" by a fire suppression service provider, unless either condition is temporary. Id. § 341.0357(a);
see also TEx. GOV'TCODEANN. § 311.016(2) (Vernon 2005) ('''Shall' imposes a duty."); Bd o/Ins.
Comm'rs o/Tex. v. Guardian Life Ins. Co. o/Tex., 180 S.W.2d 906,908 (Tex. 1944) (describing
"and" as conjunctive and "or" as disjunctive). Thus, the statute requires painting a device black in
two instances.
Second, while section 341.0357 deems a device "nonfunctioning" ifthe device pumps less
than 250 gallons per minute, the phrase "otherwise unavailable for use" is not defined. See TEx.
HEALTH & SAFETY CODE ANN. § 341.0357 (Vernon Supp. 2008). Based on the plain language and
established principles of statutory construction, the phrase "otherwise unavailable for use," as used
in the statute, means something different from or in addition to "nonfunctioning," i.e., a device
pumping less than 250 gallons per minute. See id; see also State v. Shumake, 199 S.W.3d279, 287
(Tex. 2006) (stating that when construing a statute, courts give "effect to all its words and, if
possible, do not treat any statutory language as mere surplusage"). Moreover, on its face, the phrase
"otherwise unavailable for use" is very broad, and the statute does not set out any legal or factual
criteria for making a determination that a device is otherwise unavailable for use. 4 See TEx. HEALTH
& SAFETY CODE ANN. § 341.0357 (Vernon Supp. 2008).
Thus, based on the plain meaning of section 341.0357, unless the condition is temporary an
owner must paint black a device pumping less than 250 gallons per minute or a device "otherwise
unavailable for use" by an "entity providing fire suppression services in a fire emergency" for
reasons other than that it pumps less than 250 gallons per minute. Id § 341.0357(a). Furthermore,
the term "otherwise unavailable for use" is expansive, and the statute does not specify the factors that
3Several bills have been introduced to amend section 341.0357. See, e.g., Tex. H.B. 1587, 81st Leg., R.S.
(2009) (amending section 341.0357(a) to permit rather than require an owner to paint black a nonfunctioning "or
otherwise unavailable" device); Tex. H.B. 1913, 81st Leg., RS. (2009) and Tex. S.B. 1258, 81st Leg., RS. (2009)
(defining "hydrant" and "otherwise unavailable for use"; limiting a public water system's liability; and making other
changes).
4While the statute's legislative history indicates the purpose of the statute, it does not suggest any precise or
particular meaning of "otherwise unavailable for use." Section 341.0357 was enacted by House Bill 1717 . See Act of
May 17,2007, 80th Leg., R.S., ch. 684, § 1,2007 Tex. Gen. Laws 1264, 1264. The legislation was intended to address
safety concerns posed by the existence ofdevices resembling fire hydrants that are not usable for fire suppression because
they do not deliver flow like fire hydrants or by fire hydrants that are inoperable or nonfunctioning. SENATE RESEARCH
CTR., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S. (2007) at 1; HOUSE RESEARCH ORG., BILL ANALYSIS, H.B. 1717, 80th
Leg., R.S. (2007) at 1-2. "Such safety concerns may be avoided if those hydrants are identified as nonserviceable."
SENATE RESEARCH CTR., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S. (2007) at 1. Additionally, "[m]aking clear which
hydrants were inoperable would help fire departments plan responses to emergencies and would establish a statewide
standard for designating nonfunctioning hydrants." HOUSE RESEARCH ORG., BILL ANALYSIS, H.B. 1717, 80th Leg., R.S.
(2007) at 2.
The Honorable Patrick M. Rose - Page 3 (GA-071O)
must be considered when making a determination as to a device's unavailability for use, other than
to specify that the unavailability be to an entity providing fire suppression services under the
circumstances of a fire emergency. Accordingly, we conclude that an owner is not required to first
determine that the device's flow is less than 250 gallons per minute in order to paint a device black
under the statute, if the owner determines that the device is otherwise unavailable for use for fire
suppression purposes. Additionally, if an owner determines that all devices within a system are
otherwise unavailable for use for fire suppression purposes, the owner is required to paint all the
devices black under the statute even when the flow from certain ofthose devices exceeds 250 gallons
per minute. 5
We recognize that a ~onstruction that permits painting all devices within a system black may
appear counterproductive. But, like a court, this office cannot disregard the plain language of the
statute or insert words into the statute to provide otherwise. See, e.g., R.R. Comm 'n o/Tex. v. Miller,
434 S.W.2d670, 672 (Tex. 1968) (stating that because courts are not the law-making body, they are
not responsible for omissions in legislation but only for interpreting the statute as written). It is the
Legislature'S province to amend the statute as it deems necessary or desirable.
5We note that section 341.0357 requires painting a device black if it meets the statutory criteria-pumping less
than 250 gallons per minute or otherwise unavailable for use. See TEx. HEALTH & SAFETY CODE ANN. § 341.0357(a)
(Vernon Supp. 2008); see also TEx. GOV'T CODE ANN. § 311.016(2) (Vernon 2005) ("'Shall' imposes a duty.").
Arguably, the statute by its terms does not prohibit an owner from painting a device not meeting the statutory criteria
black for other reasons. However, we need not· make that determination to answer your questions given the breadth of
the term "otherwise unavailable for use."
The Honorable Patrick M. Rose - Page 4 (GA-0710)
SUMMARY
Under Health & Safety Code section 341.0357, an owner is
not required to first determine that the flow of a device having the
appearance of a fire hydrant is less than 250 gallons per minute in
order to paint the device black, if the owner determines that the
device is otherwise unavailable for use by an entity providing fire
suppression services in a fire emergency. Additionally, if the owner
determines that all devices within a system are otherwise unavailable
for use for fire suppression services other than on a temporary basis,
an owner is required to paint all the devices black under section
341.0357 even when the flow from certain of those devices exceeds
250 gallons per minute.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHANK. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
SheelaRai
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128321/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-501
of :
: July 16, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY Da VIGO :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE JAN GOLDSMITH, MEMBER OF THE CALIFORNIA ASSEMBLY,
has requested an opinion on the following question:
May a city prohibit the making of turns onto designated public streets in either business or
residential areas within its jurisdiction during selected hours when no traffic safety issue is involved?
CONCLUSION
A city may prohibit the making of turns onto designated public streets in either business or
residential areas within its jurisdiction during selected hours when no traffic safety issue is involved.
ANALYSIS
A city possesses and may exercise only such powers as are granted to it by the Constitution
or by state statutes, together with those powers that arise by necessary implication from those expressly
granted. (Myers v. City Council of Pismo Beach (1966) 241 Cal. App. 2d 237, 240; 76 Ops.Cal.Atty.Gen. 289,
291 (1993).) In A&B Cattle Co. v. City of Escondido (1987) 192 Cal. App. 3d 1032, 1038, the court
summarized the following principles of municipal powers that we find to be applicable to the question
presented:
"'Under the police power granted by the Constitution, counties and cities have plenary
authority to govern, subject only to the limitation that they exercise this power within their
territorial limits and subordinate to state law.' [Citation.] More specifically, article XI, section 7
of the California Constitution provides: 'A county or city may make and enforce within its limits
all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.'
Where local legislation conflicts with general law, it is void. [Citations.] 'Apart from this
limitation, the "police power [of a county or city] under this provision . . . is as broad as the
police power exercisable by the Legislature itself."' [Citations.]
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police power exercisable by the Legislature itself. [Citations.]
"A local legislative enactment will be invalidated when it duplicates, contradicts, or
infringes upon an area completely occupied by general law, either expressly or by legislative
implication. Moreover, where the subject matter of the local legislation has been entirely
occupied by state general law, supplementary or complementary legislation, even pertaining to
matters otherwise properly characterized as municipal in character, is prohibited. [Citations.]"
These legal principles have been applied in a variety of contexts. (See Candid Enterprises, Inc. v. Grossmont
Union High School District (1985) 39 Cal. 3d 878, 885; Birkenfeld v. City of Berkeley (1976) 17 Cal. 3d 129,
140; 78 Ops.Cal.Atty.Gen. 171, 172 (1995); 76 Ops.Cal.Atty.Gen. 289, 291 (1993).)
We are asked whether a city may prohibit the making of turns onto designated public streets
in either business or residential areas during selected hours where no traffic safety issue is involved. Footnote
No. 1 This inquiry presents two essential issues of law. First, would the ordinance prohibiting the making of
turns onto designated streets for other than traffic safety considerations be in conflict with any state law?
Second, would such an ordinance fall within a city's police power?
1. Consistency With State Law
Section 21 of the Vehicle Code Footnote No. 2 provides:
"Except as otherwise expressly provided, the provisions of this code are applicable
and uniform throughout the state and in all counties and municipalities therein, and no local
authority shall enact or enforce any ordinance on the matters covered by this code unless
expressly authorized therein."
In section 21 the Legislature has expressed its plenary power over the regulation and control of traffic on all
highways and streets in the state, including those under the jurisdiction of local authorities. (Rumford v. City
of Berkeley (1982) 31 Cal. 3d 545, 551; Pipoly v. Benson (1942) 20 Cal. 2d 366, 371; City of Lafayette v.
County of Contra Costa (1979) 91 Cal. App. 3d 749, 755, 756.) In Citizens Against Gated Enclaves v. Whitley
Heights Civic Assn. (1994) 23 Cal. App. 4th 812, 820, the court observed:
"As noted by the Attorney General: 'Regulating the use of the public roads and
highways by whatever means is outside the "municipal affairs" constitutional grant of authority
to chartered cities.' (68 Ops.Cal.Atty.Gen. 101, 102, fn. 2 (1985).) Moreover, citing section 21,
Rumford, and Lafayette, among others, the Attorney General stated: 'Since the state has
preempted the entire field of traffic control, any right of a local authority to interfere with the
free flow of traffic . . . must be derived from an express delegation of authority from the
Legislature.' . . . (75 Ops.Cal.Atty.Gen. 80, 81 (1992).) We agree."
Accordingly, a city may regulate traffic only if it is so expressly authorized. (78 Ops.Cal.Atty.Gen. 65, 67
(1995); 68 Ops.Cal.Atty.Gen. 101, 102 (1985).) We thus must determine here whether a city has "express
delegation of authority from the Legislature" to regulate the making of turns onto designated public streets
during selected hours for purposes other than traffic safety.
Section 22101, subdivision (a) provides:
"The Department of Transportation or local authorities in respect to highways under
their respective jurisdictions, may cause official traffic control devices to be placed or erected
within or adjacent to intersections to regulate or prohibit turning movements at such
intersections."
The Vehicle Code defines the terms used by the Legislature in section 22101. "'Local authorities' means the
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The Vehicle Code defines the terms used by the Legislature in section 22101. Local authorities means the
legislative body of every county or municipality having authority to adopt local police regulations." (§ 385.)
"'Highway' is a way or place of whatever nature, publicly maintained and open to the use of the public for
purposes of vehicular travel. Highway includes street." (§ 360.) "An 'official traffic control device' is any
sign, signal, marking, or device . . . placed or erected by authority of a public body or official having
jurisdiction, for the purpose of regulating, warning, or guiding traffic . . . ." (§ 440.)
It is readily apparent from these statutory definitions that the Legislature has expressly
authorized cities to prohibit the making of turns onto designated public streets in either business or residential
areas during selected hours when no traffic safety issue is involved. We find nothing in subdivision (a) of
section 22101 that would limit the exercise of such authority to traffic safety concerns to the exclusion of all
other considerations. (See also §§ 22113, 21351.)
2. Scope of Municipal Police Power
As noted above, a city's constitutionally based police power is, while subordinate to general
law, "as broad as the police power exercisable by the Legislature itself." (See Birkenfeld v. City of Berkeley,
supra, 17 Cal.3d at 140.) The police power is not limited to safety concerns. (75 Ops.Cal.Atty.Gen. 239, 241
(1992).) In People v. K. Sakai Co. (1976) 56 Cal. App. 3d 531, 535, the court explained:
"The police power has long been described as the inherent power of a body politic to
enact and enforce laws for the promotion of the general welfare. [Citations.] It has been said that
an 'attempt to define its reach or trace its outer limits is fruitless.' [Citation.] The scope of the
police power changes with changing social and economic conditions. It is 'not a circumscribed
prerogative, . . . but is elastic and . . . capable of expansion to meet existing conditions of modern
life and thereby keep pace with the social, economic, moral, and intellectual evolution of the
human race. . . .'"
In Miller v. Board of Public Works (1925) 195 Cal. 477, 485, the Supreme Court further observed:
"In its inception the police power was closely concerned with the preservation of the
public peace, safety, morals, and health without specific regard for 'the general welfare.' The
increasing complexity of our civilization and institutions later gave rise to cases wherein the
promotion of the public welfare was held by the courts to be a legitimate object for the exercise
of the police power. As our civic life has developed so has the definition of 'public welfare' until
it has been held to embrace regulations 'to promote the economic welfare, public convenience
and general prosperity of the community.'"
Accordingly, we have stated that "[t]he police power is the inherent authority of the state to enact
and enforce laws for the promotion of the general welfare, including the economic welfare, public
convenience and general prosperity of the community." (65 Ops.Cal.Atty.Gen. 267, 273 (1982).) Any such
purpose, including for example the alleviation of noise or air pollution within a business area or residential
community during certain periods of the day, would support the exercise by a city of its police power
authority in regulating the making of turns onto designated public streets without regard to any specified
traffic safety objectives.
We conclude that a city may prohibit the making of turns onto designated public streets in
either business or residential areas within its jurisdiction during selected hours when no traffic safety issue is
involved.
*****
Footnote No 1
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Footnote No. 1
The question as presented assumes that the making of a turn would be prohibited by the city for reasons other than traffic
safety. It is noted, however, that even if the municipal power to regulate turns at intersections were limited to safety
concerns, it may not be contended in defense to a charge of making a prohibited turn that the prohibition was motivated by
other than safety concerns. Based on the separation of powers doctrine expressly stated in section 3 of article III of the
Constitution, the judiciary will confine its evaluation of a statute to the terms of the legislation itself and will not inquire
into the mental processes or motivations of those who enacted it. (Board of Supervisors v. Superior Court (1995) 32
Cal. App. 4th 1616, 1623; see also, City of Fairfield v. Superior Court (1975) 14 Cal. 3d 768, 777 [review of city council
denial of application for development permit]; State of California v. Superior Court (1974) 12 Cal. 3d 237, 257-258 [review
of quasi-judicial determination].) Accordingly, unless the court finds that the regulation on its face is irrationally conceived
for such purpose (Eye Dog Foundation v. State Board, etc. (1967) 67 Cal. 2d 536, 547) or patently unreasonable (70
Ops.Cal.Atty.Gen. 292, 295 (1987)) or oppressive (66 Ops.Cal.Atty.Gen. 367, 368 (1983)) so as to violate the
constitutional guarantee of substantive due process (cf. 69 Ops.Cal.Atty.Gen. 191, 197 (1986); 62 Ops.Cal.Atty.Gen. 351,
352 (1979)), the validity of the statute will be sustained.
Footnote No. 2
All references herein to the Vehicle Code are by section number only.
4 of 4 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128362/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 98-401
of :
: May 29, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE VALERIE BROWN, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following question:
May a city council execute a contract with a corporation for the purchase of equipment if
one of the council members and her spouse own less than 3 percent of the stock of the corporation, the spouse
has been employed by the corporation for more than 3 years, and the spouse's salary from the corporation
exceeds 5 percent of the total annual income of the member and spouse?
CONCLUSION
A city council may not execute a contract with a corporation for the purchase of equipment
if one of the council members and her spouse owns less than 3 percent of the stock of the corporation, the
spouse has been employed by the corporation for more than 3 years, and the spouse's salary from the
corporation exceeds 5 percent of the total annual income of the member and the spouse.
ANALYSIS
Government Code section 1090 Footnote No. 1 provides:
"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 are members. . . ."
We are asked to determine whether the prohibition contained in section 1090 would prevent execution of a
contract between a city council and a corporation for the purchase of equipment under the following
circumstances: one of the council members and her spouse own less than 3 percent of the stock of the
corporation, the spouse has been employed by the corporation, which has more than 10 other employees, for
more than 3 years; and the dividends on the stock together with the spouse's salary from the corporation
amount to more than 5 percent of the annual combined income of the council member and spouse. We
conclude that the contract may not be executed under the described circumstances.
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In 66 Ops.Cal.Atty.Gen. 152, 156-157 (1983) we observed:
"Section 1090 of the Government Code codifies the common law prohibition and the
general policy of this state against public officials having a personal interest in contracts they
make in their official capacities. (Terry v. Bender (1956) 143 Cal. App. 2d 198, 206; Schaefer v.
Berinstein (1956) 140 Cal. App. 2d 278, 289; Stockton P. & S. Co. v. Wheeler (1924) 68 Cal. App.
592, 597; cf. Oakland v. California Construction Co. (1940) 15 Cal. 2d 573, 576.) Mindful of the
ancient adage, that 'no man can serve two masters' (Matthew 6:24; cf. People v. Darby (1952)
114 Cal. App. 2d 412, 426), 'a self-evident truth, as trite and impregnable as the law of gravity'
(Stockton P. & S. Co. v. Wheeler, supra, at 601), the section was enacted to insure that public
officials 'making' official contracts not be distracted by personal financial gain from exercising
absolute loyalty and undivided allegiance to the best interest of the entity which they serve, and
at least with respect to those contracts, it does so by removing or limiting the possibility of their
being able to bring any direct or indirect personal influence to bear on an official decision
regarding them. (Stigall v. City of Taft (1962) 58 Cal. 2d 565, 569; City Council v. McKinley
(1978) 80 Cal. App. 3d 204, 212; Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68
Cal. App. 3d 201, 215.) The mechanism of the section is one of prohibiting public officials from
being personally financially interested as private individuals in any such contract. . . ."
More recently in 76 Ops.Cal.Atty.Gen. 118, 119 (1993) we additionally stated:
". . . Section 1090 is concerned with financial interests, other than remote or minimal
interests, which would prevent officials from exercising absolute loyalty and undivided
allegiance in furthering the best interests of their public agencies. (See Stigall v. City of Taft
(1962) 58 Cal. 2d 565, 569.) Moreover, when section 1090 is applicable to one member of the
governing body of a public entity, the proscription cannot be avoided by having the interested
member abstain; the entire governing body is precluded from entering into the contract.
(Thomson v. Call (1985) 38 Cal. 3d 633, 647-649; Stigall v. City of Taft, supra, 58 Cal.2d at 569;
City of Imperial Beach v. Bailey (1980) 103 Cal. App. 3d 191, 197; 70 Ops.Cal.Atty.Gen. 45, 48
(1987); 69 Ops.Cal.Atty.Gen. 102, 104 (1986).) A contract which violates section 1090 is void.
(Thomson v. Call, supra, 38 Cal.3d at p. 646.)" (Fn. omitted.)
The Supreme Court has declared that the purpose of section 1090's prohibition "is to remove or limit the
possibility of any personal influence, either directly or indirectly, which might bear on an official's decision,
as well as to void contracts which are actually obtained through fraud or dishonest conduct. . . ." (Stigall v.
City of Taft (1962) 58 Cal. 2d 565, 569.) The statutory goal is "not only to strike at actual impropriety, but
also to strike at the appearance of impropriety." (City of Imperial Beach v. Bailey (1980) 103 Cal. App. 3d
191, 197.) Section 1090's prohibition applies regardless of whether the contract is found to be fair and
equitable (Thomson v. Call (1985) 38 Cal. 3d 633, 646-649) or whether the official would agree to abstain
from all participation in the decision-making process (Fraser-Yamor Agency, Inc. v. County of Del Norte
(1977) 68 Cal. App. 3d 201, 211-212).
In Thomson v. Call, supra, 38 Cal.3d at 645, the Supreme Court observed:
"Section 1090 forbids city officers . . . from being 'financially interested in any
contract made by them in their official capacity, or by any body or board of which they are
members.' The proscribed interest certainly includes any direct interest, such as that involved
when an officer enters directly into a contract with the body of which he is a member.
[Citations.] California courts have also consistently voided such contracts where the public
officer was found to have an indirect interest therein. In Moody v. Shuffleton (1928) 203 Cal. 100
for example, a county supervisor sold his printing business to his son and took a promissory note
db h l h b i h b i h l d h l
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secured by a chattel mortgage on the business. Because the business helped to secure the value
of the official's mortgage, we held that a conflict existed when printing contracts were awarded
to the son. It is also clear that where the public officer is a stockholder in a corporation making
such a contract, the contract will be adjudged void under the conflict of interest statutes."
(Italics added, fn. omitted.)
Here, the council member has a financial interest in the spouse's stock ownership and salary
from the corporation. Even though the stock certificates are in the name of the spouse alone, the council
member must also be considered as having a personal financial interest in the stock as well as the salary. (See
Reece v. Alcoholic Bev. etc. Appeals Bd. (1976) 64 Cal. App. 3d 675, 683; Nielsen v. Richards (1925) 75
Cal. App. 680, 685-687; 78 Ops.Cal.Atty.Gen. 230, 236-237 (1995); 73 Ops.Cal.Atty. Gen. 191, 194-195
(1990); 69 Ops.Cal.Atty.Gen. 102, 106 (1986).) Standing alone, therefore, section 1090 clearly prohibits the
contract between the city council and the corporation under the described circumstances. (See Thomson v.
Call, supra, 38 Cal.3d at 645; Fraser-Yamor Agency, Inc. v. County of Del Norte, supra, 68 Cal.App.3d at
212; People v. Sobel (1974) 40 Cal. App. 3d 1046, 1052.)
However, the prohibition of section 1090 does not stand alone. In two instances, the
Legislature has attempted to ameliorate the harsh consequences of its application. In section 1091, the
Legislature has described various "remote interests," which if applicable, allow the making of the contract if
the officer with the proscribed financial interest (1) discloses such interest to the public agency, (2) such
interest is noted in the official records of the body, and (3) the officer abstains from participating in the
making of the contract. (78 Ops.Cal.Atty.Gen., supra, 237; 67 Ops.Cal.Atty.Gen. 369, 377, fn. 8 (1984); 65
Ops.Cal.Atty.Gen. 305, 307 (1982).) The other situation is found in section 1091.5, which describes
"noninterests," where if applicable, the contract may be executed because the Legislature has determined that
the interest is insufficient to merit application of the prohibition. In noninterest situations, the interest does
not require the officer's abstention and generally does not require disclosure.
Looking first at noninterests, we find that section 1091.5 states in relevant part:
"(a) An officer or employee shall not be deemed to be interested in a contract if his or
her interest is any of the following:
"(1) The ownership of less than 3 percent of the shares of a corporation for profit,
provided the total annual income to him or her from dividends, including the value of stock
dividends, from the corporation does not exceed 5 percent of his or her total annual income, and
any other payments made to him or her by the corporation do not exceed 5 percent of his or her
total annual income.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." Footnote No. 2
The facts presented here are that the city council member and spouse own stock in the corporation where the
spouse is employed. Their ownership is less than 3 percent of the corporation's shares, and the stock
dividends are less than 5 percent of their total income. However, "other payments" by the corporation in the
form of the spouse's salary exceed 5 percent of the total annual income of the council member and spouse.
Thus, the spouse's salary prevents the stock ownership from qualifying as a noninterest under subdivision
(a)(1) of section 1091.5. No other provision of section 1091.5 would prevent the application of section 1090
in the described circumstances.
Turning to remote interests, we find that section 1091 states in relevant part:
"(a) An officer shall not be deemed to be interested in a contract entered into by a
body or board of which the officer is a member within the meaning of this article if the officer
has only a remote interest in the contract and if the fact of that interest is disclosed to the body of
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the board of which the officer is a member and noted in its official records, and thereafter the
body or board authorizes, approves, or ratifies the contract in good faith by a vote of its
membership sufficient for the purpose without counting the vote or votes of the officer or
member with the remote interest.
"(b) As used in this article, 'remote interest' means any of the following:
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(2) That of an employee or agent of the contracting party, if the contracting party has
10 or more other employees and if the officer was an employee or agent of that contracting party
for at least three years prior to the officer initially accepting his or her office.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(3) That of an employee or agent of the contracting party, if all of the following
conditions are met:
"(A) The agency of which the person is an officer is a local public agency located in a
county with a population of less than 4,000,000.
"(B) The contract is competitively bid and is not for personal services.
"(C) The employee or agent is not in a primary management capacity with the
contracting party, is not an officer or director of the contracting party, and holds no ownership
interest in the contracting party.
"(D) The contracting party has 10 or more other employees.
"(E) The employee or agent did not directly participate in formulating the bid of the
contracting party.
"(F) The contracting party is the lowest responsible bidder.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." (Italics added.)
Here, the council member's interest would not qualify under subdivision (b)(3) of section 1091 due to her
stock ownership interest and the stock ownership interest of her spouse. Subdivision (b)(2) of section 1091
also has no application here, since it only applies to the financial interest of an employee, not that of an
owner as in the present situation. We recognize that subdivision (b)(3) of section 1091 appears to be a more
limited exception than subdivision (b)(2) and has the additional requirement of "no ownership interest"
(§ 1091, subd. (b)(3)(C)). Although the latter requirement is not expressly contained in subdivision (b)(2), it
must be so construed. Otherwise, a corporation could contract with a city even where a council member is the
president of the corporation and owns all of the corporation's stock. Such construction of section 1091 would
defeat the manifest purpose of section 1090 to avoid any appearance of impropriety. (Stigall v. City of Taft,
supra, 58 Cal.2d at 569; City of Imperial Beach v. Bailey, supra, 103 Cal.App.3d at 197.) We have also
examined the legislative histories of subdivision (b)(2) (see Stats. 1957, ch. 1499, § 1) and subdivision (b)(3)
(see Stats. 1987, ch. 847, § 1) and have found that such construction would violate the Legislature's intent in
enacting these provisions as well as the rule of strictly construing any exceptions to the general prohibition.
When stock ownership is the financial interest in question, the Legislature has been precise and detailed in
limiting the level of the ownership interest. (See § 1091, subds. (b)(6), (b)(10).) Any additional exceptions
for stock ownership would require careful consideration by the Legislature, not an opinion of the Attorney
General or the courts.
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No other remote interest exception appears relevant to the present circumstances. Without
one of the noninterest or remote interest exceptions applicable here, the prohibition contained in section 1090
precludes execution of the instant contract. Footnote No. 3 In so concluding, we emphasize the purposes of the
statutory prohibition as explained by the Supreme Court in Thomson v. Call, supra, 38 Cal.3d at 647-649:
"In San Diego v. S .D. & L. A. R. R. Co., supra, 44 Cal. 106, we recognized the
conflict-of-interest statutes' origins in the general principle that 'no man can faithfully serve two
masters whose interests are or may be in conflict': 'The law, therefore, will not permit one who
acts in a fiduciary capacity to deal with himself in his individual capacity. . . . For even if the
honesty of the agency is unquestioned . . . yet the principal has in fact bargained for the exercise
of all the skill, ability and industry of the agent, and he is entitled to demand the exertion of all
this in his own favor.' (44 Cal. at p.113.) We reiterated this rationale more recently in Stigall v.
City of Taft, supra, 58 Cal. 2d 565: 'The instant statutes [§ 1090 et seq.] are concerned with any
interest, other than perhaps a remote or minimal interest, which would prevent the officials from
exercising absolute loyalty and undivided allegiance to the best interests of the city.' (58 Cal.2d
at p. 569. See, also, City of Imperial Beach v. Bailey (1980) 103 Cal. App. 3d 191, 196; City
Council v. McKinley (1978) 80 Cal. App. 3d 204, 212; People v. Darby (1952) 114 Cal. App. 2d
412, 426; Miller, supra, 28 Cal.App.2d at p. 366; Hobbs, Wall & Co., supra, 109 Cal.App.2d at
p. 319.)
"In Stigall we relied in part on the reasoning of the United States Supreme Court on a
federal penal statute under which a contract was declared to be unenforceable because of a
conflict of interest: '"The statute is thus directed not only at dishonor, but also at conduct that
tempts dishonor. This broad proscription embodies a recognition of the fact that an impairment
of impartial judgment can occur in even the most well-meaning men when their personal
economic interests are affected by the business they transact on behalf of the Government. To
this extent, therefore, the statute is more concerned with what might have happened in a given
situation than with what actually happened. It attempts to prevent honest government agents
from succumbing to temptation by making it illegal for them to enter into relationships which are
fraught with temptation."' (Stigall, supra, 58 Cal.2d at p. 570, quoting United States v.
Mississippi Valley Generating Co. (1961) 364 U.S. 520 [5 L. Ed. 2d 268, 91 S. Ct. 294].) Implicit
in this reasoning is the assumption that the purpose of such statutes is 'not only to strike at actual
impropriety, but also to strike at the appearance of impropriety.' (City of Imperial Beach, supra,
103 Cal.App.3d at p. 197 [construing § 1090].)
"It follows from the goals of eliminating temptation, avoiding the appearance of
impropriety, and assuring the city of the officer's undivided and uncompromised allegiance that
the violation of section 1090 cannot turn on the question of whether actual fraud or dishonesty
was involved. Nor is an actual loss to the city or public agency necessary for a section 1090
violation. In Stigall, for example, a city councilman had a financial interest in a plumbing
company which submitted the lowest bids for a municipal contract. Taxpayers sued to have the
contracts declared void. They did not allege 'actual improprieties,' nor did they contend that the
contract was unfair, unjust, or not beneficial to the city. (58 Cal.2d at p. 568.) On these facts, we
nonetheless concluded that the contract violated section 1090, reasoning that the 'object of these
enactments is to remove or limit the possibility of any personal influence, either directly or
indirectly which might bear on an official's decision, as well as to void contracts which are
actually obtained through fraud or dishonest conduct.' (Id. at p. 569. See, also, San Diego v. S. D.
& L. A. R. R. Co., supra, 44 Cal. at p. 13; City of Imperial Beach, supra, 103 Cal.App.3d at p.
197; Fraser-Yamor Agency, Inc., supra, 68 Cal.App.3d at p. 215; Schaefer v. Berinstein (1956)
140 Cal. App. 2d 278, 290.) And in Shuffleton, supra, we observed that 'it matters not how fair
upon the face of it the contract may be, the law will not suffer [the official] to occupy a position
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so equivocal and so fraught with temptation.' (203 Cal. at p. 105.)
"In short, if the interest of a public officer is shown, the contract cannot be sustained
by showing that it is fair, just and equitable as to the public entity. Nor does the fact that the
forbidden contract would be more advantageous to the public entity than others might be have
any bearing upon the question of its validity. (Capron v. Hitchcock (1893) 98 Cal. 427.)" (Fns.
omitted.)
We conclude that a city council may not execute a contract with a corporation for the
purchase of equipment if one of the council members and her spouse own less than 3 percent of the stock of
the corporation, the spouse has been employed by the corporation for more than 3 years, and the spouse's
salary from the corporation exceeds 5 percent of the total annual income of the member and spouse.
*****
Footnote No. 1
All section references hereafter are to the Government Code unless otherwise indicated.
Footnote No. 2
While the definitions of noninterests and remote interests appear to exempt from the operation of section 1090 only the
interest of the officer, we have previously concluded that an exception for a noninterest or remote interest that would be
available to the officer is also applicable to an interest held by the officer's spouse. (78 Ops.Cal.Atty.Gen., supra, at 237,
fn.4.)
Footnote No. 3
A "rule of necessity" allows execution of a contract in narrowly defined circumstances. (See Eldridge v. Sierra View Local
Hospital Dist. (1990) 224 Cal. App. 3d 311, 321; 80 Ops.Cal.Atty.Gen. 335, 338-339 (1997); 65 Ops.Cal.Atty.Gen., supra,
310; 59 Ops.Cal.Atty.Gen. 458, 463-465 (1974).) The application of this rule is beyond the scope of this opinion.
6 of 6 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/8669417/ | By Judge Joseph J. Ellis
This matter came on for trial upon the Complaint of Karen B. Callahan, Executor of the Estate of Joseph M. Duggins, deceased, to determine who is the owner of a tract of land containing 75 acres, more or less, known as Holly Spring Farm in Hanover County, Virginia, and described in Article IV in the will of Joseph M. Duggins and as also described in a deed from W. E. Duggins to Joseph M. Duggins. The Court heard arguments and evidence at trial on December 16, 2009, and took the matter under advisement. Following a thorough review of the pleadings, the memoranda and briefs filed by counsel, the evidence presented, and the law, the Court finds as follows.
I. Background
The Executor of the Estate of Joseph M. Duggins, deceased, is Karen B. Callahan, who is represented by Elmo G. Cross, Jr., Esquire. The *121defendants are William Gordon Duggins, Jr., represented by Hugh S. Campbell, Esquire; Kimberly Ann Samuel Poyner, represented by Michael G. Montgomery, Esquire; and Karen B. Callahan, individually, represented by Elmo G. Cross, Esquire. The parties have submitted a Stipulation of Facts approved by the Court and drafted by agreement of all counsel dated May 3, 2007.
On May 3, 2007, the parties, as represented by counsel, properly noticed a proceeding wherein the parties argued for summary judgment. By Order entered April 9, 2008, the Court found the “Stranger to the Adoption” rule did not apply in this case, summary judgment was granted against William Gordon Duggins, and his Counterclaim was accordingly dismissed. The Court’s Order of April 9, 2008, was then suspended by Order dated April 24, 2008, pending a hearing on William Gordon Duggins’ Motion for Reconsideration. The Court heard the Motion for Reconsideration and by Order dated June 30, 2008, denied William Gordon Duggins’ Motion for Reconsideration, denied his Motion for Leave to File an Amended Counterclaim, ordered that the Order of Suspension be vacated, ordered the Order granting summary judgment be reinstated, and ordered the matter be continued as to all parties, except as to those matters dismissed and disposed of by the Order dated April 9, 2008.
Williams Gordon Duggins then filed a Motion for Leave to File an Amended Answer. The Court entered an Order, dated August 7, 2008, allowing him to file an Amended Answer, which was submitted with his motion and deemed filed upon the entry of the Order. The parties then appeared before the Court, by counsel, to request a Uniform Pretrial Scheduling Order, which the Court entered on September 8, 2009, setting the matter for trial on December 16, 2009.
II. Analysis
By deed dated May 1, 1929, which was recorded in the Clerk’s Office of the Circuit Court of Hanover County, W. E. Duggins conveyed to Joseph Moody Duggms, “during the natural life of him the said Joseph Moody Duggins and then to his heirs at law, subject however, to the life estate of the said W. E. Duggins, which life estate is hereby expressly reserved and to the dower interest of the mother of the said Joseph Moody Duggins, should she survive the said W. E. Duggins, [the property known to all parties as Holly Spring Farm].” W. E. Duggins died in December 1934 and was survived by the mother of Joseph M. Duggins. The mother *122of Joseph M. Duggins died July 19, 1975, leaving Joseph M. Duggins with a life estate in Holly Spring Farm.
Joseph M. Duggins was divorced and had no children until 1988 when, at the age of 70, he adopted Kimberly Ann Samuel, an adult. The Final Order of Adoption was entered November 9, 1988. Samuel was the maiden name of Mrs. Kimberly Ann Poyner, one of the named defendants in this case. On May 9, 1995, Kimberly Ann Poyner entered into a deed of release with Joseph M. Duggins, the validity of which she now disputes. The deed of release was recorded in the Clerk’s Office of the Circuit Court of Hanover County. The deed of release states that Mrs. Poyner for the “sum of [$119,804.00], cash in hand paid,” released, remised, relinquished, and forever quitclaimed unto Joseph Moody Duggins, “any and all right, title, interest whatsoever, at law and in equity ... and specifically any right created by the above referenced deed dated May 1, 1929.”
Mrs. Callahan asserts that the Deed of Release and devise to her by Joseph M. Duggins’ will are both valid and that she is the rightful owner of Holly Spring Farm. She argues that Mrs. Poyner released and quitclaimed any interest she may have had in the property and that, as a result of the deed of release, Joseph M. Duggins obtained fee ownership of the property. Accordingly, she argues that Mr. Duggins, as fee simple owner, could devise it in fee as he saw fit.
The Court does not doubt that the adoption and the deed of release were an attempt by Joseph M. Duggins to circumvent the deed of W. E. Duggins and to obtain fee simple ownership of Holly Spring Farm. There is also no doubt that Joseph Moody Duggins believed he had obtained fee simple ownership of the property because he devised in his will the property at issue to Mrs. Callahan. His adopted daughter, Mrs. Poyner, was not even mentioned in his will.
Mrs. Poyner testified at trial that she was unaware that the deed of release was for the release of her entire interest in Holly Spring Farm. She testified she rode to the lawyer’s office with Joseph M. Duggins and that he told her he needed her signature because the county wanted a utility easement across the property and her signature was required because she was his sole heir at law. She claims she did not read the document carefully and never received $119,804.00. Mrs. Poyner testified that Mr. Duggins gave her $15,000 at the attorney’s office on the day of signing the deed of release, but denies that she received the sums identified in the receipts offered by Mrs. Callahan. Thus, Mrs. Poyner argues the Court should set aside the deed of release because Joseph M. Duggins *123fraudulently obtained her signature on the deed of release. The Court finds Mrs. Poyner’s testimony to be wholly incredible.
A life tenant may obtain from the remainderman his estate in remainder by gift or purchase. Barnes v. Barnes, 207 Va. 114, 119, 148 S.E.2d 789, 793 (1966) (quoting Mallett v. Hall, 129 Me. 148, 150 A. 531 (1930)). The 1929 Deed defined the remainderman as the heirs at law of Joseph M. Duggins. It is well settled in Virginia that “[n]o one is heir of a living person. No vested right arises therefore until the death of the person from whom one seeks to take.” McFadden v. McNorton, 193 Va. 455, 460, 69 S.E.2d 445, 448 (1952). Thus, the remainderman under the 1929 deed could not be determined until Joseph M. Duggins’ death.
Mrs. Poyner, as Joseph M. Duggins’ daughter, became an heir at law of Joseph M. Duggins upon his death. However, at the time she signed the deed of release to Joseph M. Duggins, she possessed only an expectant interest under the 1929 deed because Joseph M. Duggins was alive and the heirs at law of Joseph M. Duggins could not be determined by operation of law until his death. “[A] release of an expectancy interest in an estate, freely and fairly made, is binding on the releasing beneficiary and excludes that beneficiary from participation in the ancestor’s estate.” Ware v. Crowell, 251 Va. 116, 120, 465 S.E.2d 809, 811 (1996). Having determined Mrs. Poyner’s testimony regarding the deed of release incredible, the Court finds Mrs. Poyner forever released whatever interest she may have had in Holly Spring Farm by the deed of release entered into with Joseph M. Duggins. “As a contract, the release effectively conveys the expectancy interest to the other beneficiaries when the interest becomes vested at the time of the ancestor’s death.” Ware v. Crowell, 251 Va. 116, 120, 465 S.E.2d 809, 811 (1996).
Equity also requires that the Court refuse to respect the fee that Joseph M. Duggins sought to create in Holly Spring Farm because of his attempt as a life tenant to destroy the interest of the expected remainderman, Mr. William Gordon Duggins, Jr. Mrs. Poyner testified on cross-examination that Mr. Joseph Duggins sought, by the adoption and deed of release, to prevent Mr. William Gordon Duggins, Jr. from getting the farm, leaving her as Mr. Joseph M. Duggins’ sole heir at law. Mrs. Callahan’s testimony corroborated Mrs. Poyner’s testimony in that regard. Mrs. Callahan also testified that Mr. Joseph M. Duggins did not want Mr. William Gordon Duggins, Jr. to receive the farm, a result he sought to circumvent. Stated differently, Joseph M. Duggins adopted Mrs. Poyner and obtained a deed of release solely to frustrate the intent of W. E. Duggins and take the fee interest in the farm himself.
*124The relationship between a life tenant and a remainderman is one in which the life estate holder serves as a quasi trustee of the residual estate. See Barnes, 207 Va. at 119, 148 S.E.2d at 793. “The life tenant is a trustee only in a limited sense in that he cannot injure or dispose of the property to the injury of the rights of the remainderman.” Id. Mr. Joseph M. Duggins’ actions constitute a willful disposal of the property to the prejudice of the anticipated remainderman. Neither Mr. Joseph Duggins nor Mrs. Poyner should benefit from this calculated breach of fiduciary duty, however limited.
Clearly, Joseph M. Duggins could have adopted Mrs. Poyner to permit her to receive the farm as his sole heir at law, an otherwise legitimate manipulation of the rights of his expected heirs at law. However, when coupled with the deed of release, his legal gymnastics constitute a breach of even a limited fiduciary duty, that of quasi trustee. As previously stated, the Court finds Mrs. Poyner’s testimony regarding the deed of release incredible. The Court believes she received the consideration of “cash in hand paid” as recited in the deed of release and is now attempting to take Holly Spring Farm as well. If the Court were simply to ignore the deed of release and award the property to Mrs. Poyner as Joseph M. Duggins’ heir at law, she would twice profit from her participation in Joseph M. Duggins’ deliberate attempt to destroy the rights of the remainderman. Justice and equity prohibit Mrs. Poyner from benefiting from her participation in the scheme. Although Mrs. Poyner, having been adopted by Mr. Duggins, is clearly an “heir at law,” she is not an heir for purposes of Holly Spring Farm. Having excluded Mrs. Poyner as an heir for purposes of this particular piece of property, the evidence before the Court is that Joseph M. Duggins’ sole remaining heir at law is William Gordon Duggins, Jr., the nephew of Joseph M. Duggins and grandson of W. E. Duggins, the original grantor under the 1929 Deed. Therefore, William Gordon Duggins, Jr., is the true and rightful owner of Holly Spring Farm.
III. Conclusion
For the reasons articulated above, the Court finds in favor of Mr. Williams Gordon Duggins, Jr. Insofar as the Court finds a fee simple interest in Holly Spring Farm never vested in Joseph M. Duggins, the court need not address the arguments of Mrs. Callahan. Simply stated, Joseph M. Duggins never acquired a fee interest in Holly Spring Farm that he could devise, and his life estate was terminated by his death. | 01-03-2023 | 11-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4143318/ | HonorableJim Weatherby
Cow.+ Attorney
Kerr County
Kerrville,Texas
Dear Sir: Opinion No. O-3050
Be: Chairman of the Demooratic
Executiveccmnaittee of I[err
county rating es clerk,
supervisoror judge at an
eleotion.
M have receivedyour letter of reoent datesrequestingour op-
inion upon the above stated question. If the ohairmanof the Demooratlo
E*eoutiveCommitteeof Kerr County is disqualifiedto rot as Clerk, super-
visor or judge of an eleotion,suoh disqualifioation is by virtue of Arti-
cle 2940, Revised Civil Statutesof Texas, -rJhioh
reads in part as follows:
"No one who holds an offioe or profit or trust under the United States or
this State, or in any city or town in this State, or within thirty (30)
days after resigningor being dismissedfrom any such office,except a
notary public,or who is a oandidatefor office,or who has not paid his
poll tax, shall act as judge, clerk or supervisorof any election . . ."
This same identioalquestionwas passed upon by the Supreme
Court of Texas in the case of Walker et al vs. ?dobley,
103 S.W. 490. The
questionthere involved1~~88
"'XasJ. T. Dean disqualifiedfrom acting as presidingjudge of voting pre-
cinct No. 2 in said electionby reason of his being at the time the ohairman
of the DemocraticExecutiveCowittee of HendersonCounty?"
Justice Brown,writing for the Court in this case, disposedof
the above questionin the followingwords:
"The ground of disqualificatisnurged is that the chairmanof an executive
committeeof a politicalparty is an office of the State or county. There
is nothing in the languageof tho law or the Constitutionto supportthe
contention. Dean was not disqualifiedto act as judge of the election."
Also see Ex Parte %Iderson (Grim.App.) 102 S.7727; 'Jallcer
vs. Mobley (Civ,App.) 106 S.W. 511 Nallcervs. Hopping, (Clv.App.) 226 S+7
ICC.
Ne are aware of the holding of the Ft. T?orthCourt of Civil
+pcals in the case of Pribergvs. Scurry,33 SE (2nd) 762, wherein the
court, in on&ruing the MandamusStatute (kt. 3113, Revised Civil Stctutos,
lC25), held that the positionsof chairmanof the DemooraticBcccutiveCom-
mittee of a county and a precinctchairmanare offices*thin the meaning
d said Article 3113. However,in vim of the holding of the Supreme Court
cf Texas in tho Valkor vs. Koblsy case, supra, this departmentadhcrcr to
i-helnriRS construedby the SupremeCourt.
I% are enclosingherewithfor your informationa copy of
OpinionPO. o-2056,written upon a relatedquestion.
Trustingthat the above answersyour inquiry,ws remain
Very truly yours
ATTORRSYGXWPAL OF ‘iEUS
By /s/ 3. Eurlc Davis
D. krle DRV~Z.
A?sis:..:.r'
t | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124983/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 3, 2016
Ms. Lisa Smith Opinion No. KP-0081
Bastrop County Auditor
804 Pecan Street Re: Whether Tax Code section 33.06 authorizes
Bastrop, Texas 78602 ad valorem property tax deferral on mixed-use
property (RQ-0067-KP)
Dear Ms. Smith:
You ask whether Tax Code section 33.06 authorizes ad valorem property tax deferral on
mixed-use property and related questions. 1 You state that the Bastrop Central Appraisal District
("District") has received requests from taxpayers seeking to defer their tax liability on property
that is used partially as a residence homestead and partially for other purposes that, you assert,
would not qualify for a homestead exemption under section 11.13 of the Tax Code. Request Letter
at 1. 2 You explain that the District appraises property by the parcel and assigns an account number
to each lot. Id. You state that the District is often unable to determine which portion of the property
is being used as a residence and cannot subdivide the lots without performing a new survey. Id.
You ask first whether Tax Code subsection 33.06(a)authorizes an appraisal district to grant a tax
deferral for property used partially as a residence home~tead and partially for other purposes, such
as commercial or agricultural purposes. Id. at 2. Second, you ask whether a tax deferral under the
subsection applies to an entire parcel in a property account that is used for both residentia~
homestead and nomesidential homestead purposes. Id. We address these questions together.
In construing statutes, courts attempt to ascertain and "give effect to the Legislature's
intent" as expressed by the language of the statute. Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex.
2000). Courts "construe the words of a. statute according to their plain meaning ... and in the
context of the statute's surrounding provisions." In re Office of the Att'y Gen. ofTex., 456 S.W.3d
153, 155 (Tex. 2015). Subsection 33.06(a) provides:
(a) An individual is entitled to defer collection of a tax, abate a suit
to collect a delinquent tax, or abate a sale to foreclose a tax lien
if the individual:
1
Ms. Lisa Smith, Bastrop Cty. Auditor, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Nov. 4, 2015),
https ://www.texasattorneygeneral.govI op in ion/requests-for-opinion-rqs ("Request Letter").
2
Specifically, you mention commercial property, agricultural-use property pursuant to article VIII, section
1-d of the Texas Constitution, and open-space property pursuant to article VIII, section l-d-1. Request Letter at I.
Ms. Lisa Smith - Page 2 (KP-0081)
(I) is 65 years of age or older or is disabled as defined by Section
l l .13(m); and
(2) the tax was imposed against property that the individual
owns and occupies as a residence homestead.
TEX. TAX CODE § 33 .06(a). The requirements for entitlement to tax deferral are in subsection (b ),
which states that "[t]o obtain a deferral, an individual must file with the chief appraiser for the
appraisal district in which the property is located an affidavit stating the facts required to be
established by Subsection (a)." Id. § 33.06(b); see also id. § 33.06(c), (c-1) (requirements for
abatement of suit or sale). Section 11.13 of the Tax Code defines "residence homestead" as:
a structure (including a mobile home) or a separately secured and
occupied portion of a structure (together with the land, not to exceed
20 acres, and improvements used in the residential occupancy of the
structure, if the structure and the land and improvements have
identical ownership) that:
(A) is owned by one or more individuals, either directly or
through a beneficial interest in a qualifying trust;
(B) is designed or adapted for human residence;
(C) is used as a residence; and
(D) is occupied as the individual's principal residence by an
owner, by an owner's surviving spouse who has a life estate
in the property, or, for property owned through a beneficial
interest in a qualifying trust, by a trustor or beneficiary of the
trust who qualifies for the exemption.
Id. § 11.130)(1 ). Once the owner files the affidavit required under section 33.06(b), "a taxing unit
may not file suit to collect delinquent taxes on the property and the property may not be sold at a
sale to foreclose the tax lien until the 181 st day after the date the individual no longer owns and
occupies the property as a residence homestead." Id.§ 33.06(b). 3
Section 33.06 does not address the extent of an appraisal district's discretion when it
receives an affidavit for deferral. Subsection 33.06(a) has only two substantive requirements
entitling an owner to deferral-the individual must qualify by age or disability and must own and
occupy the taxed property as a residential homestead. Id.§ 33.06(a); see also Tex. Att'y Gen. Op.
No. GA-0787 (2010) at 2. The owner obtains entitlement to deferral by an affidavit attesting to
the facts establishing these requirements. TEX. TAX CODE§ 33.06(b). When the requirements of
3
Similarly, the Tax Code provides for tax deferral or suit abatement for an appreciating residence homestead.
TEX.TAX CODE§ 33.065.
Ms. Lisa Smith - Page 3 (KP-0081)
section 33.06 are met, an appraisal district must allow deferral. Id. Section 33.06 does not,
however, require that the district take the affidavit at face value. The plain language of section
33.06 requires that the facts entitling an individual to deferral "be established," i.e., that the owner
and the property qualify in fact. Id. Section 33.06 impliedly authorizes a chief appraiser to
evaluate an affidavit for deferral, analogous to the chief appraiser's authority to consider an
application for a homestead exemption. Under section 11.45 of the Tax Code, a chief appraiser is
authorized and has the duty to determine an applicant's right to a homestead exemption. See id.
§ 11.45 ("Action on Exemption Applications"). Thus, a court would likely conclude that section
33.06 impliedly authorizes a chief appraiser receiving an affidavit to investigate or request
additional information and to allow or not allow a deferral as warranted by the law and facts.
Section 33.06 also does not address the right to deferral when the affidavit identifies
mixed-use property. But courts have held that "[w]hen a tax-paying landowner is actually residing
on a parcel of less than twenty acres of land, the chief appraiser may not refuse to accord residence
homestead status to the entire parcel ofland." Parker Cty. Appraisal Dist. v. Francis, 436 S.W.3d
845, 848 (Tex. App.-Fort Worth 2014, no pet.) (considering a residence homestead exemption);
accord Kubovy v. Cypress-Fairbanks Indep. Sch. Dist., 972 S.W.2d 130, 135 (Tex. App.-
Houston [14th Dist.] 1998, no pet.) (abating post-judgment action when defendant filed a section
33.06 affidavit); see also Tex. Att'y Gen. Op. No. GA-0752 (2009) at 3 (stating that "so long as
the chief appraiser determines that contiguous lots of less than twenty acres are being used as a
residence homestead, the taxpayer would be entitled to an exemption"). Some statutorily-
recognized uses of property may be fully compatible with occupancy as a residence homestead
and would not defeat entitlement to deferral. See Parker Cty. Appraisal Dist., 436 S.W.3d at 854
(determining on particular facts that property qualified for both homestead exemption and open-
space property valuation). On the other hand, some uses of property may be incompatible with
occupancy of the entire parcel as a residence homestead. See Harris Cty. Appraisal Dist. v. Nunu,
No. 14-08-00528-CV, 2009 WL 2620732, at *6 (Tex. App.-Houston [14th Dist.] 2009, pet.
denied) (mem. op.) (determining that a particular business use of property was incompatible with
a use as a residence homestead for Tax Code valuation purposes to the extent of the business use).
When an individual seeks deferral for an entire parcel that includes property not occupied as a
residence homestead, an appraisal district would be authorized to disallow the deferral. Whether
an individual occupies a parcel of land as a residence homestead, in whole or in part, will depend
on particular facts. See Zorrilla v. Aypco, Constr. II, LLC, 469 S.W.3d 143, 160 (Tex. 2015)
(stating that"[ w]hether a property is a homestead is a question of fact"); Tex. Att'y Gen. Op. No.
GA-07 52 (2009) at 3 (determining that whether contiguous lots of less than twenty acres are being
used as a residence homestead is a question of fact).
Your third question is whether an appraisal district may require an individual requesting
tax deferral under subsection 33.06(a) to provide at the owner's expense a land survey to separate
property used for residential homestead purposes from property used for other purposes. Request
Letter at 2. An appraisal district may exercise only powers that are expressly delegated to it by
the constitution or statutes and those necessarily implied from such express powers. Tex. Att'y
Gen. Op. No. GA-0681 (2008) at 2. Section 33.06 states that an owner is entitled to deferral ifthe
owner and the owner's occupancy of property meets certain requirements and the owner files an
affidavit to that effect. TEX. TAX CODE § 33.06(a)-(b). An appraisal district "may not impose
additional burdens, conditions, or restrictions in excess of or inconsistent with the statutory
Ms. Lisa Smith - Page 4 (KP-0081)
provisions." Riess v. Appraisal Dist. of Williamson Cty., 735 S.W.2d 633, 638 (Tex. App.-Austin
1987, writ denied). Thus, while article 33.06(a) implicitly authorizes an appraisal district to
investigate and disallow a tax deferral where the facts and the law warrant, it does not authorize
an appraisal district to impose additional requirements for an individual to request a tax deferral.
Accordingly, a court would likely conclude that section 33.06 does not authorize an appraisal
district to require a property owner to provide a survey at the owner's expense in order to claim
entitlement to tax deferral under subsection 33.06(a) of the Tax Code.
Ms. Lisa Smith - Page 5 (KP-0081)
SUMMARY
A court would likely conclude that section 33.06 of the Tax
Code impliedly authorizes a district to investigate facts recited in an
affidavit for deferral, request additional information, and allow or
deny a deferral as warranted by the law and facts. An appraisal
district may grant deferral on mixed-use property provided that all
uses are compatible with occupancy as a residence homestead.
Whether an owner occupies an entire parcel as a residence
homestead will depend on the particular facts.
Section 33.06 of the Tax Code does not authorize an
appraisal district to require a property owner to provide a survey at
the owner's expense in order to claim entitlement to tax deferral
under subsection 33.06(a) of the Tax Code.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289046/ | [Cite as Williams v. Canton School Employees Fed. Credit Union, 2018-Ohio-2474.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARK A. WILLIAMS JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellant Hon. W. Scott Gwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2017 CA 00213
CANTON SCHOOL EMPLOYEES
FEDERAL CREDIT UNION
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2017 CV 01645
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
MARK A. WILLIAMS M. CHARLES COLLINS
PRO SE EASTMAN & SMITH LTD
6054 Quarry Lake Drive, NE One SeaGate, 24th Floor
East Canton, Ohio 44730 P.O. Box 10032
Toledo, Ohio 43699-0032
Stark County, Case No. 2017 CA 00213 2
Wise, John, P. J.
{¶1} Plaintiff-Appellant Mark A. Williams appeals the October 23, 2017,
Judgment Entry entered by the Stark County Court of Common Pleas, granting the motion
for summary judgment filed by Defendant-Appellee Canton School Employees Federal
Credit Union.
STATEMENT OF THE CASE AND FACTS
{¶2} The relevant facts and procedural history are as follows:
{¶3} On June 15, 2011, Appellant Mark A. Williams obtained a loan from Appellee
Canton School Employees Federal Credit Union (CSE). The amount financed as shown
on the Note, signed by Appellant, was $13,104.55. The total amount financed was
comprised of three parts: (1). $3,405.55 to pay off a prior loan by Appellant with CSE
(account number XXX220-53); (2). $9,400.00 to finance an automobile being purchased
by Appellant at the time of the loan, i.e. a 2005 Chrysler 300 sedan (the "Vehicle") in
which CSE took a security interest as part of the loan transaction; and (3). $299.00 for
"gap insurance," which will pay the difference between the actual cash value of the Vehicle
and the current outstanding balance on the Loan if something happens to the Vehicle
during the course of the loan.
{¶4} The terms of the Note required that the Loan be repaid in 42 monthly
installments of $377.33 each, commencing on July 15, 2011. If any payment was late
by 15 days or more, a late charge of $25.00 was assessed.
{¶5} The Note also contained “Default and Repossession” and “Default
Remedies” provisions that provided CSE with the right to require immediate payment
Stark County, Case No. 2017 CA 00213 3
on the Loan’s outstanding balance and the right to take possession of the collateral
upon failure of Appellant to make any payment on time.
{¶6} During the course of the Loan, Appellant was chronically late with his
payments.
{¶7} On July 22, 2015, Appellee Canton School Employees Federal Credit Union
filed its Complaint against Appellant Mark Williams seeking judgment on a $4,304.20
balance owed to CSE, plus costs and interest, on the loan taken out by Mr. Williams. CSE
also sought an order of replevin for possession of the Loan's collateral, an automobile.
{¶8} On August 24 2015, Appellant filed his Answer, wherein he admitted that
he entered into the Loan agreement, but denied any balance was owed on the Loan,
contending the Loan had been repaid and therefore CSE had no interest in the collateral.
{¶9} On September 22, 2015, Appellant filed a counterclaim (incorrectly
designated as a cross-complaint). In his counterclaim, Appellant again admitted entering
into the Loan agreement and granting a security interest in the Vehicle to CSE under the
Note. Appellant also admitted that his Loan payments were "irregular" and that he had
not relinquished title to the Vehicle, but alleged that he has more than paid off the Loan
and the CSE has improperly applied his past payments. More specifically, Appellant
alleged violations of the federal Truth in Lending Act (TILA), stating that TILA "requires
full and complete disclosure of all finance amount costs. The disclosure in this matter
clearly was not complete, and or deceptive resulting in a violation of said Federal Law."
Appellant also alleged that he and his family had been harassed by CSE as part of its
collection efforts.
Stark County, Case No. 2017 CA 00213 4
{¶10} On October 13, 2015, CSE filed its Reply to Counterclaim, denying any
liability to Appellant and asserting a number of affirmative defenses including that
Appellant’s counterclaim was untimely filed and that certain parts were barred by the
applicable statute of limitations.
{¶11} That same day, CSE filed its Motion for Summary Judgment on All Claims,
supported by the Affidavit of Stefanie McCrae. In its summary judgment motion, CSE first
argued that, as to CSE's claim-in-chief against Appellant for the balance of his unpaid
loan, Appellant had failed to make timely and sufficient payments on his loan and that
CSE was therefore entitled to judgment in its favor on the unpaid balance and for replevin
of the collateral.
{¶12} As to Appellant’s counterclaim, CSE contended that the entire counterclaim
was untimely under Civ.R. 13 and therefore subject to dismissal by the trial court. Further,
CSE argued that Appellant failed to file his TILA claims within the one-year statute of
limitations, and therefore such claims were barred. Lastly, CSE presented evidence that
it did not violate the TILA.
{¶13} On October 30, 2015, Appellant filed his Opposition to Summary Judgment,
arguing that the loan agreement documents did not contain any security agreement
provisions, and also that CSE was "overreaching" by seeking judgment in excess of the
actual unpaid balance on his loan.
{¶14} On Nov. 24, 2015, CSE filed its Reply Brief, noting to the trial court that the
only evidence before it revealed that the Loan included security agreement provisions,
and that the unpaid balance demanded by CSE was accurate given the Loan's terms and
payments received to date from Appellant.
Stark County, Case No. 2017 CA 00213 5
{¶15} On December 4, 2015, Appellant filed his Opposition to Reply Brief,
reiterating his prior arguments against summary judgment.
{¶16} On December 30, 2015, the trial court entered its Judgment Entry granting
summary judgment to CSE on the unpaid loan balance of $4,304.20, plus pre- and post-
judgment interest at 11%. The trial court also dismissed with prejudice Appellant’s
counterclaim. In ruling in CSE's favor, the trial court determined that Appellant’s
counterclaim was untimely filed and filed without leave of court. The trial court also held
that Appellant’s claims based upon TILA were time-barred by TILA's one-year statute of
limitations. The trial court further noted that CSE had identified the lack of genuine issues
of material fact on Appellant’s claims, and that he had failed to meet his reciprocal burden
of setting forth specific facts under Civ.R. 56 to demonstrate a genuine issue for trial.
{¶17} Appellant appealed to this Court, raising four assignments of error, all of
which challenged the trial court’s granting of summary judgment in favor of Canton School
Employees Federal Credit Union. This Court affirmed the decision of the trial court. See
Canton School Emps. Fed. Credit Union v. Williams, 5th Dist. Tuscarawas No. 2016 AP
01 0003, 2016-Ohio-2653.
{¶18} On August 11, 2017, Appellant filed a Complaint in the Stark County Court
of Common Pleas alleging Appellee Canton School Employees Federal Credit Union
delivered to him a fraudulent promissory note and security agreement for his automobile
loan, that CSE incorrectly applied his car payments and sought improper additional
payment amounts in violation of TILA, and that CSE undertook repossession efforts and
harassed him.
Stark County, Case No. 2017 CA 00213 6
{¶19} On August 30, 2017, Appellee Credit Union filed a Motion for Summary
Judgment.
{¶20} On September 13, 2017, Appellant filed his brief in opposition.
{¶21} By Judgment Entry filed October 23, 2017, the trial court granted Appellee’s
Motion for Summary Judgment, finding Appellant’s claims in his Complaint were barred
by the doctrine of res judicata.
{¶22} Appellant now appeals, assigning the following assignments of error (as
taken from the body of Appellant’s brief1:
ASSIGNMENTS OF ERROR
{¶23} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY
APPLYING THE RULES OF JUDICATA BASED ON AN OUTCOME FROM
TUSCARAWAS COUNTY.
{¶24} “II. THE PREVIOUS TRIAL COURT ERRED IN GRANTING THE MOTION
FOR SUMMARY JUDGMENT IN RULING THAT THE COUNTERCLAIM WAS
UNTIMELY FILED AND AS SUCH THAT CASE WAS CUT WELL SHORT OF A JUST
CONCLUSION.
{¶25} “III. THE PREVIOUS TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT WHILE LEAVING AMBIGUOUS AND OPPOSING ORDERS IN ITS
CONCLUSION.
1 Appellant’s assignments of error as listed on pages 2 and 3 of his brief are identical to
those in his prior appeal Canton School Emps. Fed. Credit Union v. Williams, 5th Dist.
Tuscarawas No. 2016 AP 01 0003, 2016-Ohio-2653, and do not match the assignments
or error as set forth in the body of Appellant’s brief.
Stark County, Case No. 2017 CA 00213 7
{¶26} “IV. THE ORIGINAL TRIAL COURT ABUSED ITS DISCRETION IN
DISMISSING THE COUNTERCLAIM WITH PREJUDICE.”
I., II., III., and IV.
{¶27} In his first Assignment of Error, Appellant contends the Stark County trial
court erred in granting Appellees’ motion for summary judgment. In his Second, Third and
Fourth Assignments of Error, Appellant argues that the Tuscarawas County trial court in
the prior appeal erred in granting summary judgment in favor of Appellee and in
dismissing his counterclaim. We disagree.
“Summary Judgment Standard”
{¶28} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36. Civ.R. 56(C) provides, in pertinent
part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence in the pending case, and written stipulations of fact,
if any, timely filed in the action, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a
matter of law. * * * A summary judgment shall not be rendered unless it
appears from such evidence or stipulation and only therefrom, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
Stark County, Case No. 2017 CA 00213 8
made, such party being entitled to have the evidence or stipulation
construed most strongly in his favor.
{¶29} Pursuant to the above rule, a trial court may not enter a summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary judgment
bears the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record that demonstrate the absence of a genuine issue of material
fact. The moving party may not make a conclusory assertion that the non-moving party
has no evidence to prove its case. The moving party must specifically point to some
evidence which demonstrates the non-moving party cannot support its claim. If the
moving party satisfies this requirement, the burden shifts to the non-moving party to set
forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila
v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280,
1996-Ohio-107.
{¶30} It is based upon this standard that we review Appellant’s Assignments of
Error.
{¶31} Appellant herein challenges the trial court’s finding that the claims in his
Complaint are barred by the doctrine of res judicata.
{¶32} Upon review, we also find Appellant's arguments are barred by the doctrine
of res judicata. In Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, syllabus, the
Supreme Court of Ohio explained res judicata as “[a] valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out of the transaction
or occurrence that was the subject matter of the previous action.”
Stark County, Case No. 2017 CA 00213 9
{¶33} Here, Appellant is attempting to re-litigate the issues with regard to the
promissory note and security agreement with CSE attached to his automobile loan, as
well as alleged TILA violations. These claims were previously raised and decided in the
Tuscarawas County case and affirmed on appeal to this Court.
{¶34} Based on the foregoing, we find that Appellee was entitled to summary
judgment as a matter of law.
{¶35} Appellant’s Assignments of Error are overruled.
{¶36} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, John, P. J.
Gwin, J., and
Wise, Earle, J. concur.
.
JWW/d 0614 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289047/ | [Cite as D & L Ferguson LLC vs. Thompson, 2018-Ohio-2473.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
D & L FERGUSON LLC JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. William B. Hoffman, J.
-vs-
MICHAEL THOMPSON, As Trustee of Case No. 2017 CA 00194
the MICHAEL W. THOMPSON LIVING
TRUST, et al.
Defendants-Appellants OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 2017 CV 00563
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant Montrose
LISA K. FERGUSON JOSEPH T. DATTILO
110 Main Street 600 Superior East, Suite 1600
Wintersville, Ohio 43953 Cleveland, Ohio 44114
For Defendant-Appellant Thompson
CLAIR E. DICKINSON
IRVING B. SUGERMAN
CHRISTOPHER T. TEODOSIO
BROUSE MCDOWELL LPA
388 South Main Street, Suite 500
Akron, Ohio 44311
Stark County, Case No. 2017 CA 00194 2
Wise, P. J.
{¶1} Defendants-Appellants Michael Thompson, as Trustee of the Michael W.
Thompson Living Trust, and Stars of Cleveland, Inc., dba Montrose Ford Lincoln, appeal
the September 25, 2017 judgment entry of the Stark County Court of Common Pleas,
which found enforceable a deed restriction affecting a parcel of commercial property in
Alliance, Ohio, owned by Appellant Thompson. Plaintiff-Appellee is D & L Ferguson LLC,
the owner of an adjoining mall property. The relevant facts leading to this appeal are as
follows.
{¶2} The focus of the present dispute is a 1.0-acre parcel of real property, owned
by the Michael W. Thompson Living Trust, located at 2490 West State Street (also known
as Route 62) in Alliance, Ohio. This parcel (hereinafter the “Thompson” property) fronts
a busy commercial strip leading to Mount Union University and downtown Alliance. Said
parcel also adjoins a larger parcel at 2500 West State Street, better known as the
Carnation Mall, an indoor retail facility, and the parking lot for the mall. The mall itself sits
back somewhat from West State, with a McDonald’s restaurant, a Tractor Supply store,
and a Kay Jewelers store sharing the street frontage alongside the Thompson property.
Historical Background - 2500 West State Street
{¶3} Prior to 1981, Midland Service Corporation (“Midland”) owned both the
Thompson property (2490 West State) and the larger “mall” property upon which
Carnation Mall now stands (2500 West State).1 In April 1983, R.G. Sproul and
Associates, in the name of the Alliance Mall Company, exercised an option to purchase
1 The record indicates Midland Service Corporation was at that time an affiliate of
Midland Buckeye Federal Savings and Loan Bank. See Tr. at 194.
Stark County, Case No. 2017 CA 00194 3
some of the properties in the present area of the mall. Midland maintained a repurchase
option concerning what is now the Thompson property, as further detailed infra.
{¶4} On December 26, 1990, the Alliance Mall Company conveyed the mall
property, 2500 West State Street, to AllOhio Holding, Inc.
{¶5} On February 28, 2001, AllOhio Holding, Inc. conveyed 2500 West State
Street to Carnation Mall, LLC.
{¶6} On April 17, 2008, Carnation Mall, LLC conveyed 2500 West State Street
to Appellee D & L Ferguson, LLC by quit claim deed. It is thus undisputed that as to the
present property issues, Appellee D & L Ferguson is the successor of the Alliance Mall
Company.
Historical Background - 2490 West State Street
{¶7} In the meantime, in September 1983, the Alliance Mall Company conveyed
2490 West State Street back to Midland Service Corporation by general warranty deed.
The deed contains the following restrictive covenant:
In accepting this conveyance and as part of the consideration
therefor, the Grantee, its successors and assigns, covenants with the
Grantor [the Alliance Mall Company], its successors and assigns, that it will
not use the above described premises for any purpose other than a saving
and loan branch office and that said branch office structure shall not exceed
750 square feet. This covenant shall run with the land herein conveyed and
shall be binding on the Grantee, its successors and assigns, unless this
covenant is subsequently modified in writing by the Grantor, its successors
and assigns.
Stark County, Case No. 2017 CA 00194 4
{¶8} Thus, the deed restriction purports to prohibit use of property at 2490 West
State Street, for anything other than as a branch office of a savings and loan institution.
{¶9} As indicated previously, the property at 2490 West State abuts the parking
lot for Carnation Mall. There is presently a one-story building, styled as a bank branch
facility, approximately 750 square feet in size on the property.
{¶10} At some point after the above September 1983 conveyance, Midland
Service Corporation conveyed the Thompson property to Midland Buckeye Federal
Savings and Loan Bank, which later became Sky Bank. Although the exact time frames
have faded, these entities used the Thompson property as a savings and loan branch.
Sky Bank was thereafter purchased by Huntington National Bank.
{¶11} In June 2000, Huntington National Bank leased the property to the Alliance
Area Development Foundation, a non-profit organization that promotes the economic
development of Alliance. Said foundation is not a savings and loan institution. It appears
undisputed that there was never a written modification to the aforementioned restrictive
covenant to allow the foundation to operate at the property.
{¶12} In November 2013, Appellant Thompson, as trustee, purchased the
Thompson property from Huntington National Bank.
Prior Litigation
{¶13} On August 11, 2014, Stars of Cleveland, Inc., seeking to utilize the
Thompson property for a retail truck lot, filed a complaint in the Stark County Court of
Common Pleas for tortious interference of business relationships, slander of title, and
injunctive relief. The trial court subsequently dismissed some of the claims for tortious
interference with business relationships and the claim for slander of title.
Stark County, Case No. 2017 CA 00194 5
{¶14} On March 30, 2015, Stars of Cleveland filed a first amended complaint to
add a claim for declaratory judgment. Stars of Cleveland included in this claim a request
for the trial court to determine the enforceability of the restrictive covenant, i.e., a
declaration that the restrictive covenant did not prevent it from operating a car dealership
on the property because D & L had waived the restrictive covenant.
{¶15} Stars of Cleveland and D & L thereafter filed motions for summary judgment
on the claim for declaratory judgment. Stars of Cleveland dismissed without prejudice its
claim for tortious interference with a business relationship.
{¶16} On September 30, 2015, the trial court issued its decision granting summary
judgment in favor of D & L, essentially determining that the restrictive covenant was
enforceable against Stars of Cleveland.
{¶17} Stars of Cleveland then appealed. See Stars of Cleveland, Inc. v. D & L
Ferguson, L.L.C., 5th Dist. Stark No. 2015CA00190, 2016-Ohio-4625. On June 13, 2016,
in a 2 – 1 decision, this Court reversed the grant of summary judgment and remanded
the matter to the trial court for further proceedings. Id. at ¶ 46.
{¶18} However, Stars of Cleveland and Thompson (plaintiffs in that instance)
thereafter voluntarily dismissed their action.
Present Appeal
{¶19} On March 15, 2017, Appellee D & L Ferguson LLC, dba Carnation City Mall,
filed a civil complaint in the Stark County Court of Common Pleas against Michael
Thompson, as Trustee of the Michael W. Thompson Living Trust, and Stars of Cleveland
Inc., dba Montrose Ford Lincoln. The complaint included claims of breach of contract,
unjust enrichment, slander of title, trespass, tortious interference with business
Stark County, Case No. 2017 CA 00194 6
relationships, and tortious interference with contract. Appellee therein sought monetary
damages and injunctive relief
{¶20} On March 30, 2017, appellee filed an amended complaint, adding a claim
seeking enforcement of the 1983 deed restriction.
{¶21} The matter proceeded to a bench trial on June 26, 2017, with the trial court
combining a hearing on the preliminary injunction with the trial on the merits. Prior to
commencement, appellee dismissed all of its claims except enforcement of the deed
restriction and its request for injunctive relief regarding use of the Thompson property.
{¶22} Via a twelve-page judgment entry issued on September 25, 2017, the court
granted judgment on the first amended complaint in favor of appellee and against
appellants. Specifically, the court concluded that “*** the deed restriction at issue is
enforceable against [appellants] and [appellants] are, hereby, enjoined from using the
[Thompson] property in any manner inconsistent therewith.” Judgment Entry at 12.
{¶23} On October 12, 2017, appellants filed a notice of appeal. They herein raise
the following seven Assignments of Error:
{¶24} “I. THE TRIAL COURT INCORRECTLY REWROTE THE RESTRICTIVE
COVENANT BY DETERMINING THAT THE PHRASE ‘SAVINGS AND LOAN BRANCH
OFFICE’ AS USED IN IT MEANS ‘ANY BANKING INSTITUTION BRANCH OFFICE.’
{¶25} “II. TO THE EXTENT THE TRIAL COURT HELD THAT THE DEED
RESTRICTION IS VALID AND ENFORCEABLE DESPITE NOT BEING PART OF A
‘BUILDING PLAN OR SCHEME,’ IT ERRED AS A MATTER OF LAW.
{¶26} “III. TO THE EXTENT THE TRIAL COURT FOUND THAT THE DEED
RESTRICTION WAS PART OF A GENERAL LAND USE PLAN OR SCHEME, THAT
Stark County, Case No. 2017 CA 00194 7
FINDING IS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND MUST BE
REVERSED.
{¶27} “IV. THE TRIAL COURT'S DETERMINATION THAT THE ALLIANCE
FOUNDATION'S USE OF THE THOMPSON PROPERTY WAS CONSISTENT WITH
THE RESTRICTIVE COVENANT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE
AND MUST BE REVERSED.
{¶28} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO
CONCLUDE THAT THE DEED RESTRICTION IS OUTMODED BECAUSE OF THE
CHANGE IN THE SAVINGS AND LOAN BUSINESS AND, THEREFORE, IS
UNENFORCEABLE.
{¶29} “VI. THE TRIAL COURT'S ENFORCEMENT OF THE DEED
RESTRICTION PROVIDES D & L UNFETTERED DISCRETION OVER HOW THE
TRUST MAY USE THE THOMPSON PROPERTY AND, ACCORDINGLY, IS
INCORRECT AS A MATTER OF LAW.
{¶30} “VII. THE INJUNCTION ENTERED BY THE TRIAL COURT IS INVALID
BECAUSE IT DOES NOT DESCRIBE IN REASONABLE DETAIL THE ACT OR ACTS
TO BE RESTRAINED.”
Law of the Case
{¶31} As an initial matter, we must consider the effect of our previous decision on
our present analysis. The law of the case doctrine provides a decision of a reviewing
court in a case remains the law of the case on the legal questions involved for all
subsequent proceedings in the case at both the trial and reviewing levels. U.S. Bank v.
Detweiler, 5th Dist. Stark No. 2011CA00095, 2012–Ohio–73, ¶ 26, citing Nolan v. Nolan
Stark County, Case No. 2017 CA 00194 8
(1984), 11 Ohio St.3d 1, 462 N.E.2d 410. However, the law of the case doctrine “posits
that when a court decides upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.” GMAC Mtge., LLC v. McKeever,
651 Fed.Appx. 332, 339 (6th Cir.2016), citing Arizona v. California, 460 U.S. 605, 618,
103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (emphasis added). In this instance, our previous
ruling remanded the matter to the trial court to consider substantial value and waiver.
Therefore, we find reliance on the law of the case doctrine of little utility in this appeal.
I.
{¶32} In their First Assignment of Error, appellants contend the trial court
committed reversible error in interpreting the phrase ‘savings and loan branch office’ as
used in the deed restriction as meaning any banking institution branch office. We
disagree.
{¶33} Ohio law does not favor restrictions on the use of property. Polaris Owners
Assn., Inc. v. Solomon Oil Co., 5th Dist. Delaware No. 14CAE110075, 50 N.E.3d 983,
2015–Ohio–4948, ¶ 51, quoting Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 276,
328 N.E.2d 395 (1975). Restrictions are not to be extended or created by conjecture or
implication, nor are restrictions to be inferred from doubtful language. Ritzenthaler v.
Pepas, 107 Ohio App. 385, 389, 159 N.E.2d 472, 475 (6th Dist.1958).
{¶34} Construction of a deed restriction is a matter of law and, as such, is
reviewed by an appellate court under a de novo standard of review. Corna v. Szabo, 6th
Dist. No. OT-05-025, 2006-Ohio-2764, ¶ 37. In construing the language of a deed
restriction, a court's goal is to ascertain the intention of the parties as reflected by the
language used in the restriction. Stoneridge Farms Association v. Fuller, 6th Dist. Lucas
Stark County, Case No. 2017 CA 00194 9
No. L-06-1103, 2007-Ohio-1191, ¶8, citing Hitz v. Flower (1922), 104 Ohio St. 47, 57;
Brooks v. Orshoski (1998), 129 Ohio App.3d 386, 390. The court must interpret the
language of the restriction by giving it its common and ordinary meaning. Orshoski,
supra, at 390-391.
{¶35} The judgment entry under appeal includes the following determination: “The
Court finds that absurdity would result in reading the restriction as only applicable to
‘Savings and Loan’ branch offices as opposed to any other banking institution given that
the only difference between a ‘Savings and Loan’ and any other bank is the nature of
governmental regulation and that ‘Savings and Loan,’ accordingly [sic] to Stephen Hiler
[sic], a witness presented by the defendants, is a ‘term of art.’ "
{¶36} Judgment Entry at 10.
{¶37} Appellants essentially posit that the trial court improperly expanded, even
“rewrote,” the savings and loan language to mean any type of banking institution as a
means of “saving” the deed restriction, even though standard commercial banking would
have been prohibited on the property at the time the deed was drafted. However, we
have frequently recognized that an appellant, in order to secure reversal of a judgment,
must generally show that a recited error was prejudicial to him or her. See Tate v. Tate,
5th Dist. Richland No. 02–CA–86, 2004–Ohio–22, ¶ 15, citing Ames v. All American
Truck & Trailer Service, 6th Dist. Lucas No. L–89–295, 1991 WL 16509.
{¶38} We note that where the language of a deed restriction is unambiguous, the
court must enforce the restriction as written. Corna, supra, at ¶ 38. Under the
circumstances presented in the case sub judice, had the trial court determined instead
that the “savings and loan” restriction was unambiguous and left it alone, presumably it
Stark County, Case No. 2017 CA 00194 10
would have enforced it as is, subject to its subsequent consideration of the issue of
waiver or abandonment. In essence, because appellants have expressed no intention of
using the Thompson property for anything other than automobile or truck sales, the trial
court’s partially-expanded reading of the phrase “savings and loan” has not impacted
their legal position in this case. As such, we find appellant has failed to demonstrate
prejudicial error on this point.
{¶39} Appellants’ First Assignment of Error is therefore overruled.
II.
{¶40} In their Second Assignment of Error, appellants contend the trial court erred
in enforcing the deed restriction despite it not being part of a “building plan or scheme.”
We disagree.
{¶41} The disfavor in Ohio towards efforts to restrict land use can be overcome
by evidence establishing a general land use plan or scheme as well as notice to the land
purchaser of such a general plan or scheme. Bailey Dev. Corp. v. MacKinnon–Parker,
Inc., 60 Ohio App.2d 307, 397 N.E.2d 405 (6th Dist.1977), paragraph one of the syllabus.
Where an owner of land has adopted a general building scheme or plan for the
development of a tract of property, designed to make it more attractive for residential
purposes by reason of certain restrictive agreements to be imposed upon each of the
separate lots sold, embodying the same in each deed, such agreements will generally
be upheld provided the same are not against public policy. Polaris Owners Assn., Inc. v.
Solomon Oil Co., supra, ¶ 52, quoting Dixon v. Van Sweringen Co., 121 Ohio St. 56, 166
N.E. 887 (1929), paragraph one of syllabus. However, unlike the situation sub judice,
this issue is often discussed in the context of tract developments or housing subdivisions.
Stark County, Case No. 2017 CA 00194 11
See, e.g., Heldman Terrace Property Owners Association v. D.J.T., Inc., 6th Dist. Lucas
No. L-00-1330, 2001 WL 574944, citing Prestwick Landowners' Association v. Underhill
(1980), 69 Ohio App.2d 45, 49 and Bailey, supra, at 310.
{¶42} “In Ohio, restrictive covenants become unenforceable when there has been
a waiver or abandonment of the restrictions.” Santora v. Schalabba, 8th Dist. Cuyahoga
No. 80291, 2002-Ohio-2756, ¶ 10, citing Romig v. Modest, 102 Ohio App. 225, 142
N.E.2d 555 (2nd Dist.1956). As further discussed infra, the test often used to overcome
waiver is whether there is still a “substantial value” in the restriction which ought to be
protected. However, as we have previously recognized, “[t]he substantial value of a
restrictive covenant can be supported through evidence of a building plan or scheme.”
Stars of Cleveland, supra, at ¶ 33 (emphasis added). In other words, a “building plan or
scheme” analysis is just one path toward resolving the question of “substantial value”
and, potentially, a finding of lack of waiver or abandonment of a deed restriction.
{¶43} We thus reject appellants’ implication in the present case that appellee was
required to demonstrate the existence of a building plan or scheme in order for the trial
court to enforce the deed restriction.
{¶44} Appellants’ Second Assignment of Error is therefore overruled.
III.
{¶45} In their Third Assignment of Error, appellants challenge the trial court's
limited findings concerning a general land use plan or scheme as unsupported by
sufficient evidence.
{¶46} Appellants urge that appellee failed to present any evidence that at the time
of the creation of the deed restriction, there existed a general plan or scheme to protect
Stark County, Case No. 2017 CA 00194 12
the mall’s “visibility” to potential customers, taking exception to the following conclusions
of the trial court:
In this case, the Court finds that visibility of the Mall from State Street
is, and, based upon the size restriction contained in the deed restriction,
always has been a concern of its owners. Because of this concern, there is
no ‘building plan or scheme’ for the development of the mall, other than to
take measures to increase its visibility from State Street, such as the
installation of an LED sign and the removal of trees.
{¶47} Judgment Entry at 10.
{¶48} We reiterate that an appellant, in order to secure reversal of a judgment,
must generally show that a recited error was prejudicial. See Tate v. Tate, 5th Dist.
Richland No. 02–CA–86, 2004–Ohio–22, ¶ 15, citing Ames v. All American Truck &
Trailer Service, 6th Dist. Lucas No. L–89–295, 1991 WL 16509. Based on our analysis
under appellants’ Second Assignment of Error, we find no prejudicial error warranting
reversal on this point.
{¶49} Accordingly, appellants’ Third Assignment of Error is overruled.
IV.
{¶50} In their Fourth Assignment of Error, appellants contend the trial court’s
determination that the Alliance Foundation's use of the Thompson property was
consistent with the restrictive covenant, and that waiver of the deed restriction had not
occurred, was not supported by sufficient evidence. We disagree.
{¶51} Generally, as an appellate court, we are not the trier of fact. Our role is to
determine whether there is relevant, competent, and credible evidence upon which the
Stark County, Case No. 2017 CA 00194 13
fact finder could base his or her judgment. Tennant v. Martin–Auer, 188 Ohio App.3d
768, 2010–Ohio–3489, 936 N.E.2d 1013 (5th Dist.), ¶ 16, citing Cross Truck Equipment
Co. v. Joseph A. Jeffries Co., 5th Dist. Stark No. CA–5758, 1982 WL 2911. “In a civil
case, in which the burden of persuasion is only by a preponderance of the evidence,
rather than beyond a reasonable doubt, evidence must still exist on each element
(sufficiency) and the evidence on each element must satisfy the burden of persuasion
(weight).” Tate v. Tate, 5th Dist. Holmes No. 17CA004, 2018-Ohio-1244, ¶ 101, citing
Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 19. Our
standard of reviewing the sufficiency of the evidence in a civil case is whether, after
viewing the evidence in a light most favorable to the prevailing party, the judgment is
supported by competent and credible evidence. Moran v. Gaskella, 5th Knox No. 2011–
CA–21, 2012–Ohio–1158, ¶ 12, citing Technical Constructions v. Cooper, 8th Dist.
Cuyahoga No. 96021, 2011–Ohio–5252, ¶ 14.
{¶52} This Court has previously held that when there has been a general
acquiescence in the violation of the restriction, the restriction is rendered unenforceable.
Emerald Estates Homeowners Assn., Inc. v. Albert, 5th Dist. Stark No. 2009CA00072,
2009-Ohio-6627, ¶ 32, citing Colonial Estates Home Owners Association, Inc. v. Burkey,
5th Dist. Tuscarawas No. 97AP020013, 1997 WL 34724487. However, as a
counterbalance to this rule, we have recognized that the test in Ohio on the question of
whether a restriction has been waived or abandoned is whether in spite of the violations,
there is still a substantial value worth protecting by enforcing the restrictions. See
Trautwein v. Runyon, 5th Dist. Delaware No. 94-CA-E-11-032, 1995 WL 498951. See,
also, Landen Farm Community Services v. Schube 78 Ohio App.3d 231, 235 (12th
Stark County, Case No. 2017 CA 00194 14
Dist.1992), citing Romig v. Modest, 102 Ohio App. 225, 230 (2nd Dist.1956). A party
alleging a waiver and/or abandonment has the burden of proving his or her allegations.
Id. at paragraph four of the syllabus.
{¶53} In reaching its conclusions on the issue of “substantial value” in the case
sub judice, the trial court first reviewed the early history of the subject deed restriction,
noting that in 1981, the Carnation Mall property was owned by Midland Service
Corporation. Judgment Entry at 8. The court noted that at that time, Midland had entered
into an option agreement with R.G. Sproul and Associates, providing Midland the right
to purchase a 1.0-acre parcel of land (now the Thompson property) for $50,000.00
should Sproul exercise an option to purchase the mall property. Id. The option agreement
further allowed Midland, upon obtaining the 1.0-acre parcel, to construct a savings and
loan branch office of maximum size 750 square feet on the parcel, with any other use
subject to the written permission of Sproul. Id. Midland also reserved the right to lease
space inside the mall, with the option agreement further providing that if Midland so
exercised its right to lease space in the mall, Sproul would not sell or lease any other
parcel to another savings and loan entity during Midland’s mall tenancy. Id. The trial court
thus observed: “When Midland Service Corporation opted to construct its offices on the
outer parcel as opposed to leasing space in the mall, the deed restriction was created.”
Id.
{¶54} The trial court went on to determine as follows:
*** [T]his Court finds that the fact that the restriction regarding
building size and nature of the use of the property was put into the General
Warranty deed from the Mall to Midland Services Corporation after Midland
Stark County, Case No. 2017 CA 00194 15
Services Corporation had elected to build on the outparcel as opposed to
leasing space within the mall demonstrates that the restriction was, in fact,
for the benefit of the Mall. The Court further finds that the restriction on
building size and nature of the use of the property manifests the Mall's
intention of allowing a banking, and, therefore, non-competitive, business
to operate on the property without obstructing the Mall's visibility from State
Street.
{¶55} Judgment Entry at 9, emphasis in original.
{¶56} Ultimately, the trial court concluded that “*** because the deed restriction
limits the size of any building that might be placed in front of the mall which would
interfere with its visibility from State Street, and because it limits the nature of operation
of that building to that of a banking institution which would not compete with the retail
nature of the Mall, the Court finds that the deed restriction at issue is of ‘substantial value’
to the Mall.” Id. at 11.
{¶57} A review of the trial record reveals that Lisa Poole, the manager and
marketing director of the Carnation Mall from 2008 to 2014, recalled that visibility and
accessibility of the mall facility was an ongoing concern for her. Tr. at 28. The visibility
and accessibility factors, for example, drove her decision to erect a large LED sign at the
main entrance to the mall. Tr. at 29. She stated that between 20,000 and 29,000 cars
would pass by on West State Street daily. Id. Andrea Foley, the present manager and
marketing director of the mall, compared visibility with “product placement” for a retailer,
noting mall tenants never say they “don’t want visibility.” Tr. at 64. Foley also expressed
concern about a truck lot being distracting to passersby. Tr. at 64-65. Derek Ferguson
Stark County, Case No. 2017 CA 00194 16
recounted as an example the decision of Kay Jewelers to place its store on the street
frontage instead of inside the mall: “I bet you they’re paying ten times what we were
going to lease [the mall space] to them for inside, but they weren’t interested because
*** they didn’t have the visibility.” Tr. at 160. However, we also must recognize the
testimony of Joseph Mazzola, Alliance’s director of planning and development, called as
a witness by appellants, who opined: “Professionally, I thought [the proposed truck sales
business] could only help the mall.” Tr. at 116.
{¶58} Upon review, we find the trial court’s determination of “substantial value”
was supported by sufficient evidence, and the court’s utilization of that finding to
overcome the application of waiver of the deed restriction was not in error, despite the
Alliance Foundation not using the building for savings and loan or other banking
operations from 2000 to 2013.
{¶59} Appellants’ Fourth Assignment of Error is overruled.
V.
{¶60} In their Fifth Assignment of Error, appellants contend the trial court erred as
a matter of law by failing to conclude that the deed restriction is “outmoded” because of
the change in the savings and loan business, and is therefore unenforceable. We
disagree.
{¶61} If a restrictive covenant's language is indefinite, doubtful, and capable of
contradictory interpretations, the court must construe the covenant in favor of the free
use of land. Farrell v. Deuble, 175 Ohio App.3d 646, 2008–Ohio–1124, 888 N.E.2d 514
(9th Dist.), ¶ 11, citing Houk v. Ross, 34 Ohio St.2d 77, 296 N.E.2d 266 (1973),
paragraph two of the syllabus.
Stark County, Case No. 2017 CA 00194 17
{¶62} In the case sub judice, appellants presented the testimony of banking expert
Stephen Hailer. He noted inter alia that there are only about nine savings and loans left
in Ohio, none of which has a branch in Alliance, and there are no new savings and loans
being created. Tr. at 261, 265-266. He added that those existing savings and loans that
do exist offer different services than the savings and loans that existed at the time the
restrictive covenant was drafted, including expansion into commercial lending and other
types of investments. Tr. at 265.
{¶63} However, as appellee points out at other points in its response brief,
appellants obtained a substantial discount in price on the land purchase due to the deed
restriction, which was clearly known to all the parties involved in the transaction. While
certain aspects of the banking industry have undergone great changes since the early
1980s, savings and loan institutions have not become extinct, and we cannot conclude
that the trial court erred as a matter of law in refusing to strike the deed restriction at
issue as outmoded.
{¶64} Appellants’ Fifth Assignment of Error is therefore overruled.
VI.
{¶65} In their Sixth Assignment of Error, appellants contend the trial court erred
as a matter of law by allegedly giving appellee “unfettered discretion” in controlling the
use of the property. We disagree.
{¶66} We have cautioned against deed restrictions too broad in scope allowing
too much control over property vested in the hands of someone other than the owner of
the property. See Wingate Farms Owners Assn. v. Sankarappa, 5th Dist. Delaware No.
11–CAE–05–0041, 2012–Ohio–14, ¶ 42. However, as noted in our recitation of facts,
Stark County, Case No. 2017 CA 00194 18
the trial court in this instance enjoined appellants from using the property “in any manner
inconsistent” with the deed restriction. See Judgment Entry at 12.
{¶67} Appellants herein fail to persuade us that the ruling at issue placed unlawful
discretion in the hands of appellee concerning the use of the property.
{¶68} Appellants’ Sixth Assignment of Error is therefore overruled.
VII.
{¶69} In their Seventh Assignment of Error, appellants maintain the trial court’s
injunction entered is invalid because it does not describe in reasonable detail the act or
acts to be restrained. We disagree.
{¶70} The standard of review for the grant of injunctive relief is whether the trial
court abused its discretion. Control Data Corp. v. Controlling Bd. (1983), 16 Ohio App.3d
30, 35. The allowance of an injunction rests within the sound discretion of the trial court
and depends upon the facts and circumstances surrounding the case. Perkins v. Quaker
City (1956), 165 Ohio St. 120. The term abuse of discretion connotes more than an error
of law or judgment; it implies the court's attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
{¶71} As noted previously, the trial court enjoined appellants “from using the
[Thompson] property in any manner inconsistent” with the deed restriction. Appellants,
relying on Civ.R. 65(D), urge that this language makes it “impossible” for an ordinary
person to determine what activities would result in a violation of the injunction, particularly
given the court’s ruling that general banking institution activities would be permissible on
the property.
Stark County, Case No. 2017 CA 00194 19
{¶72} Upon review, we find no merit in appellants’ aforesaid assertions.
Appellants’ Seventh Assignment of Error is therefore overruled.
{¶73} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Gwin, J., and
Hoffman, J., concur.
JWW/d 0606 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289049/ | [Cite as State v. Weaver, 2018-Ohio-2509.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2017-0075
EMILE L. WEAVER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2015-0216
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: June 21, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX NIKKI TRAUTMAN BASZYNSKI
Prosecuting Attorney Assistant State Public Defender
Muskingum County, Ohio 250 East Broad Street, Suite 1400
Columbus, Ohio 43215
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2017-0075 2
Hoffman, J.
{¶1} Appellant Emile L. Weaver appeals the judgment entered by the Muskingum
County Common Pleas Court dismissing her petition for postconviction relief without a
hearing. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} During the spring of 2015, Appellant was a student at Muskingum
University, residing in a campus sorority house on Lakeside Drive in New Concord. She
denied and covered up the fact she was pregnant.
{¶3} On April 22, 2015, Appellant went into a bathroom in the sorority house and,
without assistance, delivered a daughter, Addison Grace Weaver. The baby was
delivered into the toilet. While bleeding profusely, Appellant delivered the placenta, cut
the umbilical cord, and pulled the baby out of the toilet. She then placed the placenta and
the baby in a small pail that was in the bathroom. She thereupon left the bathroom and
rested on a couch.
{¶4} At some point, Appellant returned to the bathroom with a garbage bag and
placed the baby, the placenta, paper towels, and some of her clothing inside the bag. She
carried the bag to the side door of the sorority house and placed it outside, next to a
garbage can. After this, she went back inside the house to lie down.
{¶5} Later that day, two sorority members found the bag lying next to the house.
They tore a hole in the bag, saw the baby, and called the police.
{¶6} After first responders came to the scene, paramedics asked Appellant if she
was the mother of the baby found outside. Appellant responded she was not the baby’s
mother. Appellant was also interviewed the same night by Detective Todd Mahle of the
Muskingum County, Case No. CT2017-0075 3
Muskingum County Sheriff's Office. The interview took place from 10:26 p.m. until 3:46
a.m. in a break room at the Muskingum University Police building. Appellant eventually
detailed to the detective the events which had occurred earlier in the day, although she
presented different versions as to whether Addison was born alive. Detective Mahle did
not utilize any recording equipment during the interview. At Mahle's request, Appellant
returned the next day at about noon to provide a recorded statement.
{¶7} An autopsy was subsequently performed on Addison. The results showed
she had been born alive, but had died of asphyxiation. Tr. at 347, 350, 382.
{¶8} On July 22, 2015, Appellant was indicted by the Muskingum County Grand
Jury on one count of aggravated murder, one count of gross abuse of a corpse, and two
counts of tampering with evidence. The case proceeded to a jury trial commencing on
May 10, 2016. Appellant was found guilty on all counts.
{¶9} At sentencing, the trial court merged the two tampering-with-evidence
counts and imposed a one-year prison sentence on said offense. The trial court further
imposed a three-year prison sentence for gross abuse of a corpse. It ordered these
sentences to run consecutively to each other and to the sentence for aggravated murder.
Finally, the trial court imposed life in prison without parole for the offense of aggravated
murder. In support of its sentencing decision, the trial court concluded appellant was not
remorseful, she had committed “the worst form of the offense,” and she had caused
emotional hardship to her sorority sisters. Sentencing Tr. at 10–16.
{¶10} Appellant filed an appeal to this Court raising four assignments of error: the
trial court erred in imposing a sentence of life imprisonment without the possibility of
parole, the sentence is disproportionate to her conduct, the court erred in imposing
Muskingum County, Case No. CT2017-0075 4
consecutive sentences, and the conviction of gross abuse of a corpse was not supported
by sufficient evidence. We found we were without statutory authority to review the
sentence for aggravated murder, and therefore overruled Appellant’s first two
assignments of error on the basis of lack of appellate jurisdiction. State v. Weaver, 5th
Dist. Muskingum No. CT2016–0033, 2017-Ohio-4374. We overruled her remaining
assignments of error on the merits and affirmed the judgment of the trial court.
{¶11} Appellant filed a postconviction petition on August 25, 2017, an amended
petition on September 5, 2017, and a second-amended petition on September 6, 2017.
The State filed its response on September 18, 2017.
{¶12} In her petition, Appellant alleged counsel was ineffective for failing to
present evidence concerning neonaticide in mitigation of sentence. She attached to her
petition an affidavit of Dr. Clara Lewis, and an article by Michelle Oberman discussing
neonaticide, including sentencing data. In her affidavit, Dr. Lewis, who is a professor at
Stanford University, stated she read the transcript and docket from Appellant’s trial. She
also reviewed news media coverage of the case and social media posts available from
Appellant and her friends. In addition, she conducted a personal interview with Appellant
on August 23, 2017. The affidavit stated in her expert opinion, Appellant’s case is a typical
example of contemporary neonaticide, her sentence is disproportionately harsh when
compared to sentences given to others convicted of the crime, and the defense failed to
introduce relevant information about the social and cultural causes of neonaticide, which
would have provided context for understanding the crime and established mitigation. In
her affidavit and her attached report, Dr. Lewis explained how immaturity, social isolation,
the insistence of her ex-boyfriend on secrecy during the pregnancy and the actions of her
Muskingum County, Case No. CT2017-0075 5
sorority sisters reinforcing her denial of the pregnancy caused Appellant to shut down and
become deeply fearful. Dr. Lewis also noted in her affidavit:
Birth takes hours. It is a painful and noisy process. Doing it alone, in
silence, in a shared bathroom speaks to Emile’s abject terror, as well as to
her belief that she had no one she could trust. Anyone might have averted
this outcome by offering to help. Instead, she was left alone.
Lewis affidavit, ¶15.
{¶13} In the report attached to her affidavit, Lewis further explained while many
find it impossible to understand how and why a woman can commit the act of infanticide,
psychiatrists explain there’s a profile: “Women who commit neonaticide tend to be
immature, isolated, worried about the judgment of others on issues ranging from sex to
abortion to unwed motherhood.” Research reveals women who commit neonaticide,
including Appellant, receive no prenatal care, suffer from pregnancy denial, make no
plans for their labor or delivery, and labor alone on toilets without medical care. When
the baby arrives denial shatters and panic ensues. The crimes are not carefully planned,
but rather are “poorly concealed acts of desperation.”
{¶14} Dr. Lewis expressed the loss of the newborn’s life is a tragedy for which
Appellant deserved to be punished, but in her expert opinion, had the existing body of
research on neonaticide been brought to bear on Appellant’s sentence, it would have
demonstrated substantial grounds to mitigate her individual culpability.
Muskingum County, Case No. CT2017-0075 6
{¶15} The trial court dismissed the petition without a hearing. The court found
Appellant’s argument of ineffective assistance was barred by res judicata, as it could have
been raised on direct appeal. The court further noted prior to trial Appellant was found
competent to stand trial, and sane at the time she committed the offense.
{¶16} It is from the September 28, 2017 judgment dismissing her petition for
postconviction relief Appellant prosecutes her appeal, assigning as error:
“THE TRIAL COURT ERRED WHEN IT DENIED EMILE WEAVER’S
POSTCONVICTION PETITION WITHOUT A HEARING.”
{¶17} When a defendant files a postconviction petition pursuant to R.C. 2953.21,
the trial court must grant an evidentiary hearing unless it determines the files and records
of the case show the petitioner is not entitled to relief. R.C. 2953.21(F). A trial court may
also dismiss a petition for postconviction relief without holding a hearing when the doctrine
of res judicata bars the claims raised in the petition. State v. Szefcyk, 77 Ohio St.3d 93,
1996–Ohio–337, 671 N.E.2d 233. Under the doctrine of res judicata, a defendant who
was represented by counsel is barred from raising an issue in a petition for postconviction
relief if the defendant raised or could have raised the issue at trial or on direct appeal. Id.
at 95.
{¶18} A trial court's decision to grant or deny a postconviction petition filed
pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court's finding on a petition for postconviction relief if it
Muskingum County, Case No. CT2017-0075 7
is supported by competent and credible evidence. State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. However, as the Fourth District Court of Appeals
has discussed, the question of the standard of review to apply when the petition is
dismissed without a hearing was not addressed by Gondor:
As we noted in State v. Harrington, 172 Ohio App.3d 595, 2007-Ohio-
3796, 876 N.E.2d 626, at ¶ 9, there is some uncertainty concerning the
appropriate standard of review used by an appellate court when reviewing
a trial court's decision to dismiss a petition for postconviction relief without
an evidentiary hearing. See also State v. Hoffner, Lucas App. No. L-01-
1281, 2002-Ohio-5201, at ¶ 6. Appellate courts, including this one, have
applied varying standards, including de novo, see State v. Gibson,
Washington App. No. 05CA20, 2005-Ohio-5353, abuse of discretion, see
State v. McKnight, Vinton App. No. 07CA665, 2008-Ohio-2435, and a mixed
question of fact and law, see Harrington, supra. While the Supreme Court
of Ohio held in State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, that courts of appeals are to apply an abuse of discretion
standard in the context of reviewing a trial court's decision on a petition after
it conducts an evidentiary hearing, it did not address the appropriate
standard on this type of proceeding, i.e., where the trial court summarily
dismisses a petition without a hearing. Because decisions denying such
petitions involve both factual and legal questions, we apply a mixed
question of law and fact standard of review to determine whether the petition
Muskingum County, Case No. CT2017-0075 8
states substantive grounds for relief. See Harrington, supra. Thus, we
review the trial court's decision on factual issues using a manifest weight
standard of review, and we review the trial court's decision on legal issues
on a de novo basis. See Hoffner, supra.
{¶19} In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, ¶ 9.
{¶20} The trial court found the claim of ineffective assistance of counsel raised in
the petition was barred by res judicata. This is a question of law, and therefore we review
the decision de novo.
{¶21} “Generally, the introduction in an R.C. 2953.21 petition of evidence dehors
the record of ineffective assistance of counsel is sufficient, if not to mandate a hearing, at
least to avoid dismissal on the basis of res judicata.” State v. Cole, 2 Ohio St.3d 112, 114,
443 N.E.2d 169 (1982).
{¶22} The State argues Appellant failed to present evidence outside the record,
as a “critique of her sentence that was created afterwards and an article discussing
neonaticide that was published in 1996 are not evidence dehors the record.” Brief of
Appellee, p.6-7.
{¶23} We agree with the State the article by Michelle Oberman discussing
neonaticide which Appellant attached to her petition is not evidence. However, we find
the affidavit of Dr. Lewis and her attached report do constitute evidence outside the
record. Dr. Lewis reviewed the case and conducted a personal interview with Appellant.
Her affidavit and report are not simply a critique of the sentence, but rather explain
neonaticide in general and as applied to Appellant. She further elaborates on the effect
Muskingum County, Case No. CT2017-0075 9
of the failure of counsel to present evidence concerning current research on neonaticide
in mitigation of Appellant’s sentence. Appellant’s claim of ineffective assistance of
counsel relies on evidence outside the record, and therefore could not have been
presented on direct appeal. The court erred in finding the claim barred by res judicata.
{¶24} We also find the court erred in suggesting the claim is barred by res judicata
because Appellant was found competent to stand trial, and found to be sane at the time
of the offense. Evidence of neonaticide presented in mitigation of sentencing is not
governed by the same legal standard required to demonstrate a person is incompetent to
stand trial or not responsible for their actions due to insanity at the time of the offense. In
fact, Dr. Lewis specifically stated Appellant should be punished for her crime.
{¶25} Finally, while the court also notes the same mitigation argument was made
on direct appeal, we held on direct appeal we lacked jurisdiction to consider either the
propriety or the proportionality of the sentence pursuant to R.C. 2953.08(D)(3). State v.
Weaver, supra, ¶16-25. Therefore, the claim could not be addressed on direct appeal.
{¶26} The State further argues the evidence presented by Appellant does not
meet a “threshold standard of cogency” to defeat a claim of res judicata as required by
State v. Lawson, 103 Ohio App. 3d 307, 659 N.E.2d 362 (12th Dist. Clermont 1995),
which states,
Evidence presented outside the record must meet some threshold
standard of cogency; otherwise it would be too easy to defeat the holding
of Perry by simply attaching as exhibits evidence which is only marginally
Muskingum County, Case No. CT2017-0075 10
significant and does not advance the petitioner's claim beyond mere
hypothesis and a desire for further discovery.
Id. at 315.
{¶27} In the instant case, counsel mentioned neonaticide only in passing in his
argument to the court regarding sentence:
With regard to this particular offense, unfortunately, across this
country there will be 2 to 300 young girls who will commit this offense. That
is not an individual problem, but it is a societal problem that we have. This
offense most typically is the result of exposure only second [sic] by
asphyxiation by placing a child in a trash bag.
I understand that when it comes to sentencing, the Court has to
consider whether or not its sentence will deter others from committing this
offense. Until we address in the greater issue of neonaticide, that
deterrence, regardless of the sentence, will not be affected.
Sent. Tr. 6-7.
{¶28} In sentencing Appellant to life without possibility of parole, the court stated
in pertinent part:
Muskingum County, Case No. CT2017-0075 11
Upon review of the presentence investigation, the Court will note
several things. One, I did hear the case, and I did hear your comments. I’m
told that you have remorse. At the time you talked with Detective Mahle, it
was said more than once that you were more concerned for your own safety
than that of the baby’s. And you gave your taped statement: I was more
concerned about me and my wellbeing. I didn’t do anything to keep her
alive. Why? I was more concerned about myself. That does not show or
verbalize any type of remorse about what happened.
The Court also got to see and read the text message you sent later
that day that you took care of the problem. That was probably the most
truthful statement you made that entire day. You did take care of your
problem. It was a problem to you. It was an inconvenience, and you took
care of it.
Sent. Tr. 10.
{¶29} After reading a letter written by Appellant concerning the death of the baby,
the court continued:
Muskingum County, Case No. CT2017-0075 12
In those four short paragraphs, you mention I 15 times, and my 5
times. Once again, it’s all about you. To have killed your child and walk up
and look at them in the casket, I just can’t imagine.
What you have put other people through in this case is terrible, and
I’m going to read to you some of the excerpts of what you have put these
people through, and they are put through every day of their lives.
Sent. Tr. 12.
{¶30} After reading excerpts of letters from Appellant’s sorority sisters, as well as
from Appellant’s family, the court concluded:
I can understand that people may feel sympathy for you if they don’t
know what happened in this case, but what I find in this case is that for a
number of months, you tried over and over to take that baby’s life. As
indicated from the letters from the sorority sisters, you would starve yourself
from time to time; you would fall down a lot; you engaged in risky activities
from drinking and smoking pot to playing dodgeball. You went to get birth
control, then you got the Black Cohosh, and 80 out of 100 pills in about two
weeks were taken, or at least not in the bottle anymore. You knew that by
opening that bottle could cause a miscarriage.
For all this, the Court finds that, one, you committed the worst form
of the offense. It’s aggravated murder based upon the age of the victim.
Muskingum County, Case No. CT2017-0075 13
You can’t get any younger than this victim, so it’s the worst form of the
offense.
As indicated by the prosecutor, your relationship to the victim caused
it. It was your own child. Mothers are supposed to protect and nurture their
children, not kill them just because it was inconvenient.
Sent. Tr. 15-16.
{¶31} The affidavit and report of Dr. Clara Lewis submitted with Appellant’s
petition for postconviction relief explained the psychiatric and cultural issues surrounding
neonaticide far beyond counsel’s casual mention at the sentencing hearing, and provided
information to contextualize the same actions which the court used to support the
sentence of life without possibility of parole. The evidence is directly in contravention of
the arguments of the State accepted by the judge in imposing the harshest sentence
available for the offense. We find the evidence submitted with Appellant’s petition meets
the threshold level of cogency to defeat a claim of res judicata.
{¶32} We conclude the court erred as a matter of law in dismissing the petition
without a hearing on the basis of res judicata. The assignment of error is sustained.
Muskingum County, Case No. CT2017-0075 14
{¶33} The judgment of the Muskingum County Common Pleas is reversed. This
case is remanded to that court with instructions to conduct an evidentiary hearing on
Appellant’s petition for postconviction relief.
By: Hoffman, J.
Wise, John, P.J. and
Baldwin, J. concur | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4124927/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
LOUIS FIGUEROA, : No. 720 MAL 2016
:
Petitioner :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
ALLSTATE INSURANCE COMPANY, :
:
Respondent :
ORDER
PER CURIAM
AND NOW, this 9th day of February, 2017, the Petition for Allowance of Appeal
is DENIED.
Justice Mundy did not participate in the consideration or decision of this matter. | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128402/ | GREG A B B O T T
June 12,2008
Mr. Robert Scott Opinion No. GA-0637
Commissioner of Education
Texas Education Agency Re: Whether impact fees may be imposed upon
1701 North Congress Avenue school district property under chapter 395 of the
Austin, Texas 7870 1- 1494 Local Government Code, and whether certain
exactions constitute "impact fees" (RQ-0658-GA)
Dear Mr. Scott:
On behalf of the Spring Independent School District, you ask whether impact fees may be
imposed upon school district property under chapter 395 of the Local Government Code and whether
certain exactions constitute "impact fees."'
I. Background
In 2006, we considered section 11.168 of the Education Code and "its effect on an
independent school district's authority to build or pay for infrastructure for new schools within the
district." Tex. Att'y Gen. Op. No. GA-0496 (2006) at 1. Section 11.168 provides:
The board of trustees of a school district may not enter into an
agreement authorizing the use of school district employees, property,
or resources for the provision of materials or labor for the design,
construction, or renovation of improvements to real property not
owned or leased by the district.
TEX.EDUC.CODEANN. 5 11.168 (Vernon 2006). The primary question addressed by Attorney
General Opinion GA-0496 was "whether section 11.168 prohibits a school district from paying
impact fees imposed by a municipality to help fund water, sewer, and roadways necessary to serve
'Letter from Robert Scott, Commissioner of Education, to Honorable Greg Abbott, Attorney General of Texas
(Dec. 14,2007) (on file with the Opinion Committee, also available at http:liwww.texasattomeygeneral.gov)[hereinafter
Request Letter]. See Letter from Jeffrey J. Homer, Bracewell & Giuliani LLP, on behalf of Spring Independent School
District, to David Anderson, General Counsel, Texas Education Agency (Nov. 15,2007) (attached to Request Letter)
(on file with the Opinion Committee) [hereinafter Homer Letter #I]; Letter from Jeffrey J. Homer, Bracewell & Giuliani
LLP, to Nancy Fuller, Chair, Opinion Committee, Attorney General of Texas (Jan. 25,2008) (on file with the Opinion
Committee) [hereinafter Homer Letter #2].
Mr. Robert Scott - Page 2 (GA-0637)
new school development, when those improvements will not be made on land owned or leased by
the district." Tex. Att'y Gen. Op. No. GA-0496 (2006) at 2. The opinion construed section 11.168
relative to chapter 395 of the Local Government Code. Id. See TEX.LOC. GOV'TCODEANN.ch.
395 (Vernon 2005 & Supp. 2007) (providing for impact fees).
Opinion GA-0496 noted that section 11.168 "prohibits a school district from entering into
an agreement," and that the common meaning of the term "agreement" indicates an "evidence [of]
harmony or accordance in opinion or feeling." Tex. Att'y Gen. Op. No. GA-0496 (2006) at 2-3
(emphasis added). The opinion then pointed out that under chapter 395 of the Local Government
Code, an impact fee is a "charge or assessment imposed by a political subdivision." See id. at 3
(emphasis added); TEX.LOC.GOV'TCODEANN.5 395.001(4) (Vernon 2005). The opinion found
that, under the common meaning of the word "impose," an impact fee "is a unilateral action that does
not involve harmony or accordance in feeling or opinion." Tex. Att'y Gen. Op. No. GA-0496 (2006)
at 3. Thus, the opinion concluded that "section 11.168 does not prohibit an independent school
district from paying impact fees imposed by a municipal corporation on the district for the district's
new school development." Id.
11. Analysis
A. Effect of Section 395.022(b), Local Government Code
During its Eightieth Session, the Legislature adopted section 395.022(b) of the Local
Government Code. Act of May 11,2007,80th Leg., R.S., ch. 250,$ 1,2007 Tex. Gen. Laws 356,
3 56. That section provides:
(b) A school district is not required to pay impact fees
imposed under this chapter unless the board of trustees of the district
consents to the payment of the fees by entering a contract with the
political subdivision that imposes thefees. The contract may contain
terms the board of trustees considers advisable to provide for the
payment of the fees.
TEX.LOC.GOV'TCODEANN.5 395.022 (Vernon Supp. 2007) (emphasis added).2
The "primary objective when construing a statute is to ascertain and give effect to the
legislature's intent." City of Houston v. Jackson, 192 S.W.3d 764,770 (Tex. 2006). A court, and
likewise this office, begins its analysis of a statute by construing its plain language. See Tooke v.
City of Mexia, 197 S.W.3d 325,356 (Tex. 2006) (Johnson, J., concurring in part and dissenting in
'According to a bill analysis prepared by the House Research Organization, this new legislation was enacted
in part as a reaction to the conclusion reached in Attorney General Opinion GA-0496. HOUSERESEARCHORG.,BILL
ANALYSIS, Tex. H.B. 2038, 80th Leg., R.S. (2007) (companion bill to Senate Bill 883). Senate Bill 883 was later
enacted, amending section 395.022 of the Local Government Code. See Act of May 1 l,2007,80th Leg., R.S., ch. 250,
5 1,2007 Tex. Gen. Laws 356,356.
Mr. Robert Scott - Page 3 (GA-0637)
part). "The Legislature's intent is determined from the plain and common meaning of the words
used." St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).
The plain language of section 395.022(b) demonstrates that the legislative intent was to
exempt a school district from the payment of mandatory impact fees to a political subdivision under
chapter 395 unless the district's board of trustees enters into a contract with the political subdivision
to pay the fee. Section 395.022(b), by specifically declaring that a school district may enter into a
contract with a political subdivision to pay an impact fee, but not requiring it to do so, must be read
in conjunction with section 11.168 of the Education Code. Section 395.022(b) acts to mitigate the
implication of Attorney General Opinion GA-0496 that a school district must pay an impact fee
because such a fee is imposed rather than being the subject of an agreement.
We also note that section 395.022(b) could be construed to pose a conflict with section
11.168of the Education Code because section 11.168 prohibits a school district from entering "into
an agreement authorizing the use of school district employees, property, or resources for the
provision of materials or labor for the design, construction, or renovation of improvements to real
property not owned or leased by the district." TEX.EDUC.CODEANN. 5 11.168 (Vernon 2006). The
Code Construction Act provides, with an exception not relevant here, that "if statutes enacted at the
same gr different sessions of the legislature are irreconcilable, the statute latest in date of enactment
prevails." TEX.GOV'TCODEANN.5 3 11.025(a) (Vernon 2005). Section 11.168 of the Education
Code was enacted by the Seventy-ninth Legislature. See Act of May 27,2005,79th Leg., R.S., ch.
979,2005 Tex. Gen. Laws 3286,3286. Section 395.022(b) of the Local Government Code was
enacted by the Eightieth Legislature. See Act of May 1l,2007,80th Leg., R.S., ch. 250,2007 Tex.
Gen. Laws 356, 356-57. Section 395.022(b) is thus "the statute latest in date of enactment."
Accordingly, to the extent of any conflict between section 11.168 of the Education Code and section
395.022(b) of the Local Government Code, section 395.022(b) prevails.
We conclude that, pursuant to section 395.022(b) of the Local Government Code, a school
district is not required to pay an impact fee imposed by chapter 395 of the Local Government Code
unless the district's board of trustees consents to the payment of such fee by entering into a contract
with the political subdivision that imposes the fee. Such a contract is excepted from the prohibition
in section 11.168, Education Code. Attorney General Opinion GA-0496 (2006) has been modified
by section 395.022(b) of the Local Government Code.
B. Whether Certain Exactions Constitute an "Impact Fee"
The school district on whose behalf you inquire is particularly concerned about whether five
different kinds of exactions may be considered impact fees under chapter 395 of the Local
Government Code. Request Letter, supra note 1, at 1; Horner Letter #2, supra note 1, at 2-3.
Chapter 395 defines an "impact fee" as
a charge or assessment imposed by a political subdivision
against new development in order to generate revenue for funding or
recouping the costs of capital improvements or facility expansions
Mr. Robert Scott - Page 4 (GA-0637)
necessitated by and attributable to the new development. The term
includes amortized charges, lump-sum charges, capital recovery fees,
contributions in aid of construction, and any other fee that functions
as described by this definition. The term does not include:
(A) dedication of land for public parks or payment in lieu of
the dedication to serve park needs;
(B) dedication of rights-of-way or easements or construction
or dedication of on-site or off-site water distribution, wastewater
collection or drainage facilities, or streets, sidewalks, or curbs if the
dedication or construction is required by a valid ordinance and is
necessitated by and attributable to the new development;
(C) lot or acreage fees to be placed in trust funds for the
purpose of reimbursing developers for oversizing or constructing
water or sewer mains or lines; or
(D) other pro rata fees for reimbursement of water or sewer
mains or lines extended by the political subdivision.
TEX.LOC.GOV'TCODEANN.§ 395.001(4) (Vernon 2005). The term "capital improvement" is
defined to mean
any of the following facilities that have a life expectancy of
three or more years and are owned and operated by or on behalf of a
political subdivision:
(A) water supply, treatment, and distribution facilities;
wastewater collection and treatment facilities; and storm water,
drainage, and flood control facilities; whether or not they are located
within the service area; and
(B) roadway facilities.
Id, 9 395.001(1). The term "facility expansion" means "the expansion of the capacity of an existing
facility that serves the same function as an otherwise necessary new capital improvement, in order
that the existing facility may serve new development." Id. 5 395.00 l(3). "The term does not include
the repair, maintenance, modernization, or expansion of an existing facility to better serve existing
development." Id.
In a recent opinion, we said that "an exaction is an impact fee under chapter 395 if it is a
charge or assessment to fund or recoup the costs of capital improvements or facility expansions, or
if it is a fee that functions as such a charge or assessment." Tex. Att'y Gen. Op. No. GA-0482
Mr. Robert Scott - Page 5 (GA-0637)
(2006) at 3. "Chapter 395 does not broadly prohibit property development exaction; rather, it
prohibits a political subdivision from levying impact fees without complying with chapter 395." Id.
at 2 (citation omitted). "Because chapter 395 applies only to impact fees, whether the chapter
prohibits a particular property development exaction depends, as a threshold matter, on whether the
exaction is an impact fee under the chapter." Id. Under section 395.022(b), a school district is not
required to pay an impact fee imposed under chapter 395 in the absence of an agreement to do so.
You ask about five specific kinds of fees or charges that may be imposed under chapter 395.3
Some ofthose charges-such as those intended to finance roads or drainage impact fees-may easily
fit within the definitions of "capital improvement" or "facility expansion" in chapter 395. See TEX.
Loc. GOV'TCODEANN.§ 395.001(1), (3) (Vernon 2005). And if they are "necessitated by and
attributable to the new development," such charges may qualifl as "impact fees" for purposes of
chapter 395. Id. 5 395.001(4). However, whether any particular fee fits within the definition of
capital improvement or facility expansion and is "necessitated by and attributable to the new
development" would involve an investigation and determination of facts. Thus, whether any
particular fee constitutes an "impact fee" under chapter 395 would require the resolution of facts
and, as a result, cannot be determined in an attorney general opinion. See Tex. Att'y Gen. Op. No.
GA-0391 (2006) at 12 (resolving questions of fact is beyond the scope of the opinion process).
3Wenote that there are other assessment schemes under which a school district may or may not be liable. See,
e.g.,TEX.LOC.GOV'TCODEANN. ch. 402, subch. C (Vernon 2005 & Supp. 2007) (relating to municipal drainage utility
systems). One statute permits a municipality to charge "a lot or tract of benefitted property for drainage service." Id.
5 402.047(a); see Act ofMay 15,2007,SOth Leg., R.S., ch. 885,s 3.76(a)(2), 2007 Tex. Gen. Laws 1905,2154 (chapter
402 will be renumbered as chapter 552 effective Apr. 1,2009). A school district, however, "may be exempt" from this
charge. See TEX.LOC.GOV'TCODEANN. § 402.053(b)(4) (Vernon 2005 & Supp. 2007) (also to be renumbered in
chapter 552 effective Apr. 1,2009). Under subchapter D of chapter 402, amunicipality may, in certain counties, impose
certain charges for sewer system improvements and water system improvements. See id. §§ 402.061-.062, .065, ,068
(also to be renumbered in chapter 552 effective Apr. 1,2009).
Mr. Robert Scott - Page 6 (GA-0637)
S U M M A R Y
Under section 395.022(b) of the Local Government Code, a
school district is not required to pay an impact fee imposed under
chapter 395 unless the district's board of trustees consents to the
payment of such fee by entering into a contract with the political
subdivision that imposes the fee. Attorney General Opinion GA-0496
(2006) has been modified by section 395.022(b) of the Local
Government Code.
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128403/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1007
of :
: March 5, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY Da VIGO :
Deputy Attorney :
General
:
______________________________________________________________________
GROSSMONT EDUCATION ASSOCIATION and LINDA PIERCE have requested this
office to grant leave to sue in quo warranto upon the following:
ISSUES OF FACT OR LAW
1. Is continued residence within a high school district required during the entire term of
office of a governing board member?
2. Has defendant ceased to comply with the residence requirement for continued service
as a governing board member of a high school district?
CONCLUSIONS
1. Continued residence within a high school district is required during the entire term of
office of a governing board member.
2. Whether defendant has ceased to comply with the residence requirement for
continued service as a governing board member of a high school district presents a substantial
issue of fact and law.
PARTIES
GROSSMONT EDUCATION ASSOCIATION and LINDA PIERCE ("relators") contend
that MAYNARD R. OLSEN ("defendant") is unlawfully serving as a member of the governing
board of the Grossmont Union High School District in the City of La Mesa, County of San Diego
("District").
MATERIAL FACTS
Defendant was elected in 1994 to the governing board of the District for a term that expires
in December of 1998.
Relators allege that in February of 1997, defendant was licensed to practice medicine in the
state of Utah; that during the first quarter of 1997, defendant reduced his medical practice within
the District from two days to one morning per week, while pursuing a practice in Utah; that in
June of 1997, defendant's colleagues held a "going away" party at the site of his medical practice
within the District; that defendant currently maintains a medical practice in Utah on a five-day-
per-week basis; that in August of 1997, defendant purchased a home in Utah; that defendant has
moved to Utah with his family and furnishings; that defendant's house within the District, which
is for sale, is occupied by his daughter's family; and that defendant admits his intention to make
Utah his permanent home.
Defendant alleges that he practices medicine in California and Utah; that he maintains
hospital privileges and treats patients at Grossmont Hospital; that until July of 1997 his primary
residence was at his home within the District; that since July of 1997, he has rented a room
within the District which is his current place of residence; that he intends to continue his
domicile within the District notwithstanding the substantial time spent in Utah for purposes of
work; and that he is registered to vote within the District.
ANALYSIS
In deciding whether to grant leave to sue in the name of the People of the State of
California, we consider initially whether there exists a substantial question of law or fact which
requires judicial resolution, and if so, whether the proposed action in the nature of quo warranto
would serve the overall public interest. (80 Ops.Cal.Atty.Gen. 242, 242-243 (1997).)
No issue is raised herein respecting defendant's qualifications for election to the District's
governing board. Rather, it is alleged that defendant has failed to maintain his residence within
the District during his term of office. In this regard, Government Code section 1770 provides in
part:
"An office becomes vacant on the happening of any of the following events before the
expiration of the term:
". . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . .
"(e) His or her ceasing to be an inhabitant of the state, or if the office be local and one for
which local residence is required by law, of the district . . . for which the officer was chosen or
appointed . . . .
". . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . Footnote No. 1
1. Continued Residence Requirement
The first issue to be resolved is whether defendant's continued residence within the District
is required during his term of office as a member of the District's governing board. Footnote No. 2
Education Code section 35107, subdivision (a), provides as follows:
"Any person, regardless of sex, who is 18 years of age or older, a citizen of the state, a
resident of the school district, a registered voter, and who is not disqualified by the Constitution
or laws of the state from holding a civil office, is eligible to be elected or appointed a member of
the governing board of a school district without further qualifications." (Italics added.)
While this statutory provision refers specifically to eligibility for election or appointment to a
school district's governing board, and not explicitly to continued service thereon, we have
previously observed that in the absence of any statutory expression to the contrary, an election
residence requirement continues during the entire term of office as a qualification for holding the
office. (79 Ops.Cal.Atty.Gen. 243, 245 (1996); 75 Ops.Cal.Atty.Gen. 287, 288 (1992).) Hence, if
defendant does not currently qualify as a resident of the District, he is not qualified to hold office
as a member of the governing board.
2. Change of Residence
The second inquiry is whether defendant has ceased to comply with the requirement of
residence within the District during his term of office. "Residence" for purposes of Government
Code section 1770 means "domicile," a place of physical presence coupled with an intention to
make that place one's permanent home; a person may only have one domicile at any given time.
(See Walters v. Weed (1988) 45 Cal. 3d 1, 7; Smith v. Smith (1955) 45 Cal. 2d 235, 239; DeMiglio
v. Mashore (1992) 4 Cal. App. 4th 1260, 1268; Fenton v. Board of Directors (1984) 156
Cal. App. 3d 1107, 1113; 79 Ops.Cal.Atty.Gen. 21, 25-26 (1996); 73 Ops.Cal.Atty.Gen. 197, 208-
209 (1990); 72 Ops.Cal.Atty.Gen. 8, 11 (1989).)
In our view, relators' allegation that defendant has purchased a home outside the District,
taken alone, is not dispositive, since an individual may have multiple dwellings as distinguished
from the concept of domicile. (75 Ops.Cal.Atty.Gen., supra, 289.) In prior opinions, therefore,
where such an allegation was insufficient to overcome direct evidence of an expressed intent to
remain in and to return to the officer's domicile within the public agency's boundaries whenever
absent for purposes of work, where such an expression was coupled with corroborative conduct,
we have denied applications for leave to sue in quo warranto. (Ibid.; 75 Ops.Cal.Atty.Gen. 26, 28
(1992); 73 Ops.Cal.Atty.Gen. 427, 430 (1990).)
The present application, however, contains allegations which, if true, would call
substantially into question defendant's claim of continued domicile within the District.
Defendant's conduct suggests, at the least, that he intends to remain in Utah for an indefinite
time. While defendant supports his claim of continued domicile within the District by attempting
to maintain his registration to vote therein, such a course of action appears to be inconsistent
with the Elections Code section 2023, which states:
"If a person moves to another state as a place of permanent residence, with the intention of
remaining there for an indefinite time, he or she loses his or her domicile in this state,
notwithstanding that he or she intends to return at some future time."
Whether defendant has ceased to comply with the requirement of residence within the
District during his term of office as a District board member presents substantial issues of law
and fact.
PUBLIC INTEREST
In 79 Ops.Cal.Atty.Gen., supra, 247, we observed:
"Finally, it is well settled that the mere existence of a justiciable issue does not establish that
the public interest requires a judicial resolution of the dispute or that the Attorney General is
required to grant leave to sue in quo warranto. (75 Ops.Cal.Atty.Gen. 287, 289 (1992).) As stated
in City of Campbell v. Mosk (1961) 197 Cal. App. 2d 640, 650: 'The exercise of the discretion of
the Attorney General in the grant of such approval to sue calls for care and delicacy. Certainly
the private party's right to it cannot be absolute; the public interest prevails.'"
As a general rule, we have viewed the existence of a substantial question of fact or law as
presenting a sufficient "public purpose" to warrant the granting of leave to sue; accordingly,
leave will be denied only in the presence of other overriding considerations. (80
Ops.Cal.Atty.Gen., supra, 247.) We find no countervailing considerations herein. Rather, both
the public and the District have an interest in the integrity of public office and in the
qualifications of their officials.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
*****
Footnote No. 1
A member of the governing board of a high school district is the holder of a public office for purposes of
Government Code section 1770. (See 73 Ops.Cal.Atty.Gen. 354, 356 (1990).)
Footnote No. 2
Education Code section 5090 provides in part: "Vacancies on school district governing boards . . . are caused by any
of the events specified in Section 1770 of the Government Code. . . ." | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128408/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1001
of :
: February 25,
1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. Da :
VIGO
Deputy Attorney :
General
:
______________________________________________________________________
THE HONORABLE BERNIE RICHTER, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following questions:
1. Does a school district have the authority to establish a school within the geographical
and attendance boundaries of another school district?
2. Does a school district have the authority to establish a charter school within the
geographical and attendance boundaries of another school district?
3. Would a school district be liable for the actions of a school established within its
geographical and attendance boundaries by another school district ?
CONCLUSIONS
1. A school district has the authority to establish a school within the geographical and
attendance boundaries of another school district only if the school is located on a site
immediately adjacent to a school site within the district's boundaries.
2. A school district has the authority to establish a charter school within the
geographical and attendance boundaries of another school district.
3. A school district would not be liable for the actions of a school established within its
geographical and attendance boundaries by another school district.
ANALYSIS
1. Traditional Schools in Other Districts
The first inquiry is whether a school district may establish a school within the geographical
boundaries of another district. We conclude that it may under narrowly defined conditions.
Section 5 of article IX of the Constitution provides: "The Legislature shall provide for a
system of common schools by which a free school shall be kept up and supported in each district
at least six months in every year, after the first year in which a school has been established."
Section 14 of the same article states:
"The Legislature shall have the power, by general law, to provide for the incorporation and
organization of school districts. . . .
"The Legislature may authorize the governing boards of all school districts to initiate and
carry on any programs, activities, or to otherwise act in any manner which is not in conflict with
the laws and purposes for which school districts are established."
Pursuant to this constitutional grant of authority, the Legislature has enacted section 35160 of the
Education Code Footnote No. 1 as follows:
"On and after January 1, 1976, the governing board of any school district may initiate and
carry on any program, activity, or may otherwise act in any manner which is not in conflict with
or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for
which school districts are established."
Section 35160.1 additionally provides:
"(a) The Legislature finds and declares that school districts . . . have diverse needs unique to
their individual communities and programs. Moreover, in addressing their needs, common as
well as unique, school districts . . . should have the flexibility to create their own unique
solutions.
"(b) In enacting section 35160, it is the intent of the Legislature to give school districts
. . . broad authority to carry on activities and programs, including the expenditure of funds for
programs and activities which, in the determination of the governing board of the school
district . . . are necessary or desirable in meeting their needs and are not inconsistent with the
purposes for which the funds were appropriated. It is the intent of the Legislature that Section
35160 be liberally construed to effect this objective.
"(c) The Legislature further declares that the adoption of this section is a clarification of
existing law under Section 35160."
Accordingly, while prior to January 1, 1976, we were required to search for express or
implied authorization for a school district program, we now look to whether a particular activity
is precluded by any law. (73 Ops.Cal.Atty.Gen. 84, 86 (1990).) If a district's program or activity
is neither in conflict nor inconsistent with any provision of law, it is permitted.
Prior to January 1, 1988, section 37100 provided as follows:
"Whenever the governing board of a school district is unable to maintain the school or
schools in the district because of its inability to secure a teacher or teachers, or because of lack of
facilities, the board may maintain the school or schools of the district elsewhere than within the
district. . . ."
Effective January 1, 1988, section 37100 was repealed. (Stats. 1987, ch. 1452, § 216.) However,
the Legislature declared with respect to its repeal, as well as the repeal of other sections of the
Education Code:
"The Legislature finds and declares that, in 1972, the people of the state adopted an
amendment to Section 14 of Article IX of the California Constitution, which permits the
Legislature to authorize the governing boards of school districts to initiate and carry on any
programs, activities, or to otherwise act in any manner which is not in conflict with the laws and
purposes for which school districts are established.
"It is the intent of the Legislature, in enacting this act, to implement more fully, for the
school districts . . . in California, the intent of the people in adopting the amendment of Section
14 of Article IX of the California Constitution. The Legislature further finds and declares that, in
order to do so, it is necessary to amend or repeal many provisions of the Education Code.
"Whenever in this act a power, authorization, or duty of a school district governing
board . . . is repealed . . , it is not the intent of the Legislature to prohibit the board . . . from
acting as prescribed by the deleted provisions. Rather, it is the intent of the Legislature, that the
school district governing boards...shall have the power, in the absence of other legislation, to so
act under the general authority of Section 35160 of the Education Code." (Stats. 1987, ch. 1452,
§ 1; italics added.)
Thus, while it was not the Legislature's intent to prohibit a school district from acting as
prescribed in a repealed provision such as section 37100 (see 73 Ops.Cal.Atty.Gen. 183, 187-188
(1990)), and notwithstanding the rule of liberal construction (§ 35160.1, subd. (b)), it remains
clear that a school district may act only "in the absence of other [conflicting] legislation."
In addition to the grant of general authority contained in section 35160, the Legislature
enacted section 35271, subdivision (a), operative June 30, 1993, as follows:
"The governing board of any school district may acquire property, construct buildings, and
maintain classes outside its boundaries on sites immediately adjacent to school sites of the
district within its boundaries."
While section 35160 provides that a school district may act in any manner "which is not in
conflict with or inconsistent with . . . any law," does section 35271 contain a limitation that
supersedes the general authority of the former statute?
In examining the language of section 35271, we follow established principles of statutory
construction. "When interpreting a statute our primary task is to determine the Legislature's
intent. [Citation.] In doing so we turn first to the statutory language, since the words the
Legislature chose are the best indicators of its intent. [Citation.]" (Freedom Newspapers, Inc. v.
Orange County Employees Retirement System (1993) 6 Cal. 4th 821, 826.) "Every word, phrase,
and sentence in a statute should, if possible, be given significance. [Citation.]" (Larson v. State
Personnel Bd. (1994) 28 Cal. App. 4th 265, 276-277.) Moreover, we note that with respect to a
statutory grant of authority, there is an implied negative: no power may be exercised which is in
excess of the granted authority. (Wildlife Alive v. Chickering (1976) 18 Cal. 3d 190, 196; 79
Ops.Cal.Atty.Gen. 128, 129 (1996); see, e.g., Huntington Park Redevelopment Agency v. Martin
(1985) 38 Cal. 3d 100, 105.)
Here, section 35271 contains both a specific grant of authority as well as a specific
limitation upon the grant of authority. It authorizes a school district to "acquire property,
construct buildings, and maintain classes outside its boundaries . . . ." Included within this
authorization are all of the elements necessary for the establishment of a school. By way of
limitation, however, the district may do so ". . . on sites immediately adjacent to school sites of
the district within its boundaries." The implied negative is that a school district may not establish
a school outside its boundaries on a site not immediately adjacent to a school site within its
boundaries. Footnote No. 2 To do so would be in conflict and inconsistent with section 35271 and
therefore unauthorized.
We conclude that a school district may establish a school within the boundary of another
district only if it is located upon a site immediately adjacent to a school site within the district.
2. Charter Schools in Other Districts
The second inquiry is whether our analysis would differ if the school to be established
within the boundaries of another district were a charter school. In other words, would the
extraterritorial establishment by a school district of a charter school be subject to the site
limitation contained in section 35271? We conclude that the statutory limitation would be
inapplicable.
The legislative purposes in enacting the Charter Schools Act of 1992 (§§ 47600-47616;
"Act"), authorizing the operation of charter schools throughout the state, are set forth in section
47601 as follows:
"It is the intent of the Legislature, in enacting this part, to provide opportunities for teachers,
parents, pupils, and community members to establish and maintain schools that operate
independently from the existing school district structure, as a method to accomplish all of the
following:
"(a) Improve pupil learning.
"(b) Increase learning opportunities for all pupils, with special emphasis on expanding
learning experiences for pupils who are identified as academically low achieving.
"(c) Encourage the use of different and innovative teaching methods.
"(d) Create new professional opportunities for teachers, including the opportunity to be
responsible for the learning program at the school site.
"(e) Provide parents and pupils with expanded choices in the types of educational
opportunities that are available within the public school system.
"(f) Hold the schools established under this part accountable for meeting measurable pupil
outcomes, and provide the schools with a method to change from rule-based to performance-
based accountability systems."
The Act provides for the establishment of a charter school by filing a petition, specifications to
be contained in a proposed charter, review and approval or denial by the district governing
board, and grounds for revocation of a charter. (See 80 Ops.Cal.Atty.Gen. 52, 54 (1997); 78
Ops.Cal.Atty.Gen. 253, 254-255 (1995).) With respect to a charter school's general operations,
section 47610 states that a charter school "shall comply with all of the provisions set forth in its
charter petition, but is otherwise exempt from the laws governing school districts . . ." with
specified exceptions not pertinent to this examination. (See 78 Ops.Cal.Atty.Gen. 297, 300
(1995).)
In 80 Ops.Cal.Atty.Gen., supra, 54-56, for example, we determined that a charter school
would be exempt from the Field Act, which generally governs school districts in the design and
construction of school buildings. Footnote No. 3 Similarly, here, a charter school would be exempt
from the limitations inherent in section 35271. It is noted in this regard that admission to a
charter school may not be determined by the student's place of residence within the state, nor
may any student enrolled in the school district be required to attend a charter school. (§ 47605,
subds. (d), (f); 78 Ops.Cal.Atty.Gen., supra, 254-255.) These provisions are consistent with our
determination that a charter school is not subject to the same constraint as to location as is a
traditional school.
Accordingly, we conclude that a charter school, unless constrained by the terms of its
charter, may be established within the geographical boundaries of another school district.
3. Liability for Schools of Another District
The final inquiry is whether a school district would be liable for the actions of a school
established within its boundaries by another school district. We conclude that it would not be
liable in such circumstances.
While a school district is generally defined by its geographical boundaries, which forms the
basis for the inquiries herein, the boundaries are jurisdictional and not proprietary. Thus, a school
district may be liable for the actions of its employees during a course of duty, or for injuries
caused by dangerous conditions upon the property where its facilities are situated or over which
it has control, but it would not be liable for the actions of the employees of another district or for
injuries sustained upon property not subject to its control. (See, e.g., Gov. Code, § 835; Peterson
v. San Francisco Community College Dist. (1984) 36 Cal. 3d 799; Bartell v. Palos Verdes
Penisula Sch. Dist. (1978) 83 Cal. App. 3d 492.)
We conclude that a school district would not be liable for the actions of a school established
within its geographical attendance boundaries by another district.
*****
Footnote No. 1
Unidentified section references hereafter are to the Education Code.
Footnote No. 2
Whether the State Board of Education may waive the requirements of section 35271 in a particular case (see
§ 33050) is beyond the scope of this opinion.
Footnote No. 3
As noted in our recent opinion, the Field Act construction requirements would be applicable to a charter school if
they were set forth in its charter petition. (Id., at p. 55.) | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128411/ | GREG A B B O T T
May 30,2008
The Honorable Vicki Truitt Opinion No. GA-0633
Chair, Committee on Pensions and Investments
Texas House of Representatives Re: Whether an educational institution violates
Post Office Box 29 10 article 6228a-5, section 9(a)(4)-(7) of the Texas
Austin, Texas 78768-2910 Revised Civil Statutes if the institution contracts
with a third-party administrator that is owned by
or otherwise affiliated with a company that sells
qualified 403(b) investment products to the
institution's employees (RQ-0653-GA)
Dear Representative Truitt:
Article 6228a-5, sections 4-1 3 of the Revised Civil Statutes provides the means by which
an educational institution's employees may participate in investment plans that meet the
requirements of section 403(b) of the Federal Internal Revenue Code (a "403(b) plan"). See
generally 26 U.S.C.A. 5 403(b) (West Supp. 2007); TEX.REV. CIV. STAT.ANN.art. 6228a-5, $4
4-13 (Vernon Supp. 2007). You tell us that "Texas educational institutions offering 403(b) plans
often obtain the services of third party administrators (TPAs) to assist in" managing their 403(b)
plans.' You ask two questions about an educational institution's use of a third-party administrator
that is affiliated with a company offering qualified 403(b) investment products for sale to employees
of the educational institution (an "affiliated third-party administrator"):
(1) Does an educational institution violate Section 9(a)(4) through
(7), Article 6228a-5 . . . if the institution contracts with a [third-
party administrator] that is owned by or otherwise affiliated
with a company that sells qualified investment products to the
institution's employees?
(2) Specifically, does an educational institution violate Section
9(a)(6) . . . if the institution contracts with a [third-party
administrator] described by question (1) and the [third-party
'Letter from Honorable Vicki Truitt, Chair, Committee on Pensions and Investments, Texas House of
Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Nov. 29,2007) (on file with the Opinion
Committee, also available at http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
The Eonorable Vicki Truitt - Page 2 (GA-0633)
administrator] provides its services for free, for a nominal fee,
or at a reduced rate?
See Request Letter, supra note 1, at 3. Your questions raise many issues of fact, which cannot be
resolved in an opinion. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are
not appropriate to the opinion process."). We can, however, provide some guidance as to the
interpretation of the statute at issue. We begin by examining article 6228a-5 in light of the facts you
have provided.
I. Statutory and Factual Background
Under article 6228a-5, section 5(a), an educational institution "may enter into a salary
reduction agreement with an employee of the institution" under which the educational institution
agrees to reduce the employee's salary for the purpose of directly contributing to or purchasing
certain qualified 403(b) investment products. TEX. REV. CIV. STAT.ANN. art. 6228a-5, 5 5(a)
(Vernon Supp. 2007); see id. $ 4(2), (4), (7) (defining "educational institution," "employee," and
"salary reduction agreement"); see also id. $ 5(f) ("To the greatest degree possible, employers of
employees who participate in the program offered under this section shall require that contributions
to eligible qualified investments be made by automatic payroll deduction and deposited directly in
the investment accounts."). The employee is "entitled to designate any agent, broker, or company
through which a qualified investment product may be purchased or contributions may be made," but
may purchase only eligible qualified investment products (annuities or investments) that are
registered with the Teacher Retirement System of Texas (the "Retirement System") in accordance
with article 6228a-5, section 8A. Id. $ 5(e); see id. $ 5(a); see also id. $ 4(3), (5)-(6) (defining
"eligible qualified investment," "qualified investment product," and "retirement system"); id.$ 5(d)
(requiring the Retirement System to "establish and maintain" on the Retirement System's Internet
website "a list of companies that have certified under this section"); id. 8 8A (setting out the
procedure by which a company offering a qualified investment product to an educational institution's
employees may register the product with the Retirement System).
You tell us that educational institutions offering 403(b) plans often "obtain" the services of
third-party administrators to assist in the administration of their 403(b) plans. Request Letter, supra
note 1, at 1. You indicate that, in serving an educational institution, a third-party administrator
typically
receives employees' salary reduction agreements, screens the
agreements for compliance with applicable federal and state law,
and approves the required employee payroll deductions; and
receives the funds from the employees' payroll deductions and
forwards those funds to the appropriate companies for deposit
into the appropriate employees' 403(b) policies or accounts.
See id.(footnote omitted). You also tell us that new federal regulations promulgated by the Internal
Revenue Service place "greater responsibility" on employers "in administering their 403(b) plans"
The Honorable Vicki Truitt - Page 3 (GA-0633)
and that educational institutions are therefore likely to rely increasingly on third-party administrators.
Id. at 2.
You explain that an educational institution must provide its third-party administrator with
access to certain personal and financial information of participating employees, such as
the name and identifying number (i.e., social security number or
employee identification number) of each employee who
purchases a qualified investment product;
records related to purchasing the investment product, including
the employee's salary reduction agreement;
information regarding the investment product purchased,
including information about the company from which the
employee purchased the investment product; and
information regarding the amount of the purchase.
Id.
And you further state that third-party administrators may be affiliated with companies selling
qualified 403(b) investment products:
[Third-party administrators] are not always independent from
the companies that sell qualified investment products. In some
instances, a company that sells qualified investment products may
form a subsidiary organization to offer [third-party administrator]
services. In other instances, a company and a [third-party
administrator] might both be owned by the same parent company.
Frequently, in these situations, the affiliated [third-party
administrator] offers services for fees reportedly ranging from $1,000
to $5,000 annually, fees that are well below the market rate charged
by independent [third-party administrators] for the same services.
Id.
You are concerned that an educational institution's use of an affiliated third-party
administrator may violate article 6228a-5, section 9(a)(4)-(7). See id. at 3. With respect to section
9(a)(6) in particular, you are concerned about the practice of an educational institution accepting
affiliated-third-party-administrator services for free or at a nominal or reduced rate. The provisions
about which you ask limit the actions of an educational institution:
(a) An educational institution may not:
The Eonorable Vicki Truitt - Page 4 (GA-0633)
(4) grant exclusive access to an employee by discriminating
against or imposing barriers to any agent, broker, or company that
provides qualified investment products under this Act;
(5) grant exclusive access to information about an employee's
financial information, including information about an employee's
qualified investment products, to a company or agent offering
qualified investment products unless the employee consents in writing
to the access;
(6) accept any benefit from a company or from an agent or
affiliate of a company that offers qualified investment products; or
(7) use public funds to recommend a qualified investment
product offered by a company or an agent of a company that offers a
qualified investment product.
TEX.REV. CIV.STAT.ANN.art. 6228a-5, 5 9(a)(4)-(7) (Vernon Supp. 2007).
On its face, section 9 applies to the actions of an "educational institution," which article
6228a-5 defines to mean a school district or an open-enrollment charter school. See id. $5 4(2), 9.
You do not ask whether the term "educational institution" in section 9 encompasses a third-party
administrator as the educational institution's delegatee or agent, and therefore we do not consider
the question. See Request Letter, supra note 1, at 3.2 Moreover, whether an entity serves as a
principal's agent depends upon the resolution of fact issues-specifically whether the principal
"manifests assent to" the entity that the entity will "act on the principal's behalf and subject to the
principal's control, and the [entity] manifests assent or otherwise consents so to act"-that cannot
be resolved in an opinion. RESTATEMENT OF THE LAWOF AGENCY 5 1.O1 (3d ed. 2006); see Tex.
Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion
process."); see also RESTATEMENT OF THE LAWOF AGENCY $ 1.O1 cmt. c (3d ed. 2006) (describing
the elements of agency, which include the principal's right to control the agent). We turn now to the
questions you ask, considering each subsection in turn. In this way, we combine our answers to your
questions.
'See also Letter from Steve Bresnen, Steve Bresnen & Assocs., on behalf of 1st American Pension Services,
Inc., to Honorable Greg Abbott, Attorney General of Texas, at 8 (Jan. 28, 2008) (suggesting that a third-party
administrator is an agent of the educational institution "under the principle of respondeat superior"); Letter from Susan
Jennings, General Counsel, Life Insurance Co. of the Southwest, to Honorable Greg Abbott, Attorney General of Texas,
at 5 (Feb. 7,2008) ("As the [third-party administrator] would be the school's agent (since the school is the principal who
retained the [third-party administrator] to act on its behalf regarding the 403(b) plan)," a school could be liable for a
third-party administrator's violation of section 9(a)(7)) (both letters on file with the Opinion Committee).
The Honorable Vicki Truitt - Page 5 (GA-0633)
11. Analysis
A. Section 9(a)(4)
Section 9(a)(4) prohibits an educational institution from granting "exclusive access to an
employee by discriminating against or imposing barriers to any agent, broker, or company that
provides" qualified 403(b) investment products to the educational institution's employees. TEX.
REV. CIV. STAT.ANN.art. 6228a-5, 5 9(a)(4) (Vernon Supp. 2007). In our opinion, whether an
educational institution grants "exclusive access to an employee by discriminating against or
imposing barriers to" a qualified-investment-productprovider by contracting with an affiliated third-
party administrator is a question that requires the resolution of numerous fact questions. One must
decide, for example, whether the educational institution's grant of exclusive access to a third-party
administrator discriminates against or imposes barriers to an agent, a broker, or a company that sells
qualified investment products. This office does not resolve fact questions. See Tex. Att'y Gen. Op.
No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").
B. Section 9(a)(5)
Section 9(a)(5) prohibits an educational institution from granting "exclusive access to
information about an employee's financial information . . . to a company or agent offering qualified
investment products unless the employee consents in writing to the access." TEX.REV. CIV.STAT.
ANN.art. 6228a-5, 5 9(a)(5) (Vernon Supp. 2007). If the term "company" encompasses only that
portion of the entity selling qualified investment products, then the educational institution may
provide the third-party administrator with exclusive access to employees' financial information
without violating section 9(a)(5), but if the term "company" encompasses subsidiaries of the
qualified-investment-product provider or entities owned by the same parent company, then providing
exclusive access to an affiliated third-party administrator violates section 9(a)(5). We consequently
consider the meaning of the term "company" for purposes of section 9(a)(5).
Article 6228a-5 does not define the term "company," but section 9(a)(6) distinguishes
between a company and an affiliate of the company: "a company or . . . an agent or affiliate of a
company that offers qualified investment products." Id. fj 9(a)(6). While the term "affiliate" is not
defined in article 6228a-5 and has not been defined by a court specifically in the context of article
6228a-5, the term ordinarily refers to "[a] corporation that is related to another corporation by
shareholdings or other means of control" or "a 'company effectively controlled by another or
associated with others under common ownership or control."' Eckland Consultants, Inc. v. Ryder,
Stilwell Inc., 176 S.W.3d 80'88 (Tex. App.-Houston [lst Dist.] 2004, no pet.) (quoting BLACK'S
LAWDICTIONARY 59 (7th ed. 1999); WEBSTER'STHIRDNEWINTERNATIONAL DICTIONARY 35
(1971)); see also TEX.GOV'TCODEANN.55 312.001-.002(a) (Vernon 2005) (directing that, with
respect to the construction of "all civil statutes," "words shall be given their ordinary meaning").
Consequently, article 6228a-5, section 9(a)(6) indicates that the term "company" does not encompass
affiliates of the company, i.e., companies with the same parent company or a company's subsidiary.
And a term should be defined consistently throughout a statute. See Helena Chem. Co. v. Wilkins,
47 S.Ivli.3d 486,493 (Tex. 2001) (stating that a court should not give one provision in a legislative
The Honorable Vicki Truitt - Page 6 (GA-0633)
enactment a meaning out ofharmony or inconsistent with other provisions). As a result, we construe
the term "company" throughout section 9 not to include affiliate^.^
Construing the term "company" in this way is consistent with the term's definition in rules
adopted by the Retirement System. The Retirement System has express statutory authority to "adopt
rules" for use in administering certain portions of article 6228a-5, not including section 9. See TEX.
REV.CIV.STAT.ANN.art. 6228a-5,s 6(c) (Vernon Supp. 2007) (authorizing the Retirement System
to "adopt rules only to administer [Section 61 and Sections 5,7,8,8A, 11, 12, and 13 of this Act");
see also id. art. 6228a-5, 5 4(6) (defining "retirement system"). As the Retirement System defines
the term, a company is
[a]n entity that offers and issues a qualified investment product and
that has primary liability to the purchaser for performance of the
obligations described in the product, contract, annuity contract or
annuity certificate, or policy. Generally, "company" does not include
. . . third party administrators, . . . unless such entities have primary
liability for performance of the obligations in the product or contract.
34 TEX.ADMIN. CODE$ 53.1(5) (2008) (Retirement System, Definitions). While the Retirement
System is not authorized to define the term for purposes of section 9, a term ideally should be
construed consistently throughout a statute. See Helena Chem. Co., 47 S.W.3d at 493 (stating that
a court should not give one provision in a legislative enactment a meaning out of harmony or
inconsistent with other provisions).
We therefore conclude that, for purposes of article 6228a-5, the term "company"
encompasses only that portion of an entity selling qualified investment products; it does not
encompass a subsidiary company or a company owned by the same parent corporation.
Consequently, an educational institution may provide an affiliated third-party administrator with
exclusive access to employees' financial information without violating section 9(a)(5). Nevertheless,
whether providing such exclusive access violates section 9(a)(5) in particular circumstances is a
30ther statutes define the term "company," but we are reluctant to apply any of these definitions to article
6228a-5 without considering the purposes for which the Legislature adopted each of the acts that define the term. See,
e.g., TEX. REV. CIV. STAT.ANN. art. 581-4.B. (Vernon Supp. 2007) (defining the term "company" to "include a
corporation, person, joint stock company, partnership, limited partnership, association, company, firm, syndicate, trust,
incorporated or unincorporated"); TEX.FIN.CODEANN.8 6 1.002(6)(Vernon Supp. 2007) (defining "company" to mean
"a corporation, partnership, trust, joint-stock company, association, unincorporated organization, or other similar entity
or a combination of any of those entities acting together"); TEX.GOV'TCODEANN.5 806.001(3) (Vernon Supp. 2007)
(defining "company" to mean "a sole proprietorship, organization, association, corporation, partnership, joint venture,
limited partnership, limited liability partnership, limited liability company, or other entity or business association whose
securities are publicly traded, including a wholly owned subsidiary, majority-owned subsidiary, parent company, or
affiliate of those entities or business associations, that exists to make a profit"). Additionally, to the extent other statutory
definitions would include affiliates, they would be inconsistent with section 9(a)(6), which makes clear that for purposes
of article 6228a-5, section 9, the term "company" does not include an affiliate.
The Honorable Vicki Truitt - Page 7 (GA-0633)
decision for a c0u1-t.~CJ:Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not
appropriate to the opinion process.").
C. Section 9(a)(6)
The issue with respect to section 9(a)(6), which prohibits an educational institution from
accepting "any benefit from . . . an . . . affiliate of a company that offers qualified investment
products," is whether an educational institution accepts a benefit if an affiliated third-party
administrator manages the 403(b) plan for free or for a nominal or reduced fee. TEX.REV.CIV.
STAT.ANN.art. 6228a-5, 5 9(a)(6) (Vernon Supp. 2007).
Article 6228a-5 does not define the term "benefit." See generally id. art. 6228a-5. But
statutes that attempt to prevent corrupt influences on public servants define the term "benefit" to
mean "anything reasonably regarded as pecuniary gain or pecuniary advantage." TEX.PENALCODE
ANN.5 36.01(3) (Vernon 2003); TEX.TRANSP. CODEANN.5 366.2521(a) (Vernon Supp. 2007); see
also TEX. PENALCODEANN. 5 1.07(a)(7) (Vernon Supp. 2007) ('"Benefit' means anything
reasonably regarded as economic gain or advantage. . . ."). The Waco court of appeals has construed
the term "benefit" in the context of one of these statutes to include "anything to which a price can
be assigned," excepting goods or services of minimal value. Smith v. State, 959 S.W.2d 1,20-21
(Tex. App.-Waco 1997, pet. ref d). The Texas Ethics Commission, the entity charged with
administering the Penal Code provisions prohibiting a public servant's acceptance of a benefit, has
determined that the waiver of a private organization's membership fees constitutes a benefit. See
Op. Tex. Ethics Comm'n No. 268 (1995) at 1. Similarly, the Ethics Commission determined that,
but far the fact that the Legislature has specifically excepted from the term "benefit" the use of a
governmental entity's property or facilities, unlimited free parking in city-owned or city-leased
spaces would constitute a benefit. See Op. Tex. Ethics Comm'n No. 186 (1994) at 1; see also Op.
Tex. Ethics Comm'n No. 282 (1995) at 1 ("A discount on child care costs is a benefit.").5
Because article 6228a-5, section 9(6) appears on its face to discourage corrupt influences on
educational institutions, the statutory definition, judicial definition, and the Ethics Commission's
interpretations are instructive. In addition, this definition of the term "benefit" is consistent with the
4Section 9(a)(5) prohibits the granting of exclusive access to an employee's financial information "unless the
employee consents in writing to the access." TEX.REV.CIV.STAT.ANN.art. 6228a-5, 5 9(a)(5) (Vernon Supp. 2007).
Accordingly, an educational institution that obtains the services of an affiliated third-party administrator may wish to
protect itself by obtaining employees' consent in the event that providing information to the third-party administrator
violates section 9(a)(5).
5Coincidentally, the Texas Commissioner of Insurance recently has determined that the provision of
administrative services by a third-party administrator "on a no-additional-fee basis" may "constitute an . . . inducement
that is not specified in the" underlying insurance policy in violation of sections 541.056(a) and 543.003(1)(A), (C) of
the Insurance Code. Commissioner's Bulletin #B-0004-08 (Jan. 31, 2008), available at http://www.tdi.state.tx.us/
bulleti~s/index.html(last visited May 29,2008). The Department of Insurance thus "strongly cautions" an insurance
company, insurance agent or agency against directly or indirectly providing administrative services "at no additional fee."
Id.
The Honorable Vicki Truitt - Page 8 (GA-0633)
term's ordinary meaning. See THE NEWOXFORDAMERICANDICTIONARY 154 (2001) (defining
"benefit" as "an advantage or profit gained from something"); see also TEX.GOV'TCODEANN.
tjtj 312.001-.002(a) (Vernon 2005) (directing that, with respect to the construction of "all civil
statutes," "words shall be given their ordinary meaning"). We thus construe the term "benefit" in
article 6228a-5, section 9(a)(6) to encompass "anything reasonably regarded as pecuniary gain or
pecuniary advantage," excepting perhaps goods or services of minimal values6 TEX.PENALCODE
ANN.5 36.01(3) (Vernon 2003); TEX.TRANSP. CODEANN.5 366.2521(a) (Vernon Supp. 2007); see
also TEX. PENALCODEANN. 5 1.07(a)(7) (Vernon Supp. 2007) ("'Benefit' means anything
reasonably regarded as economic gain or advantage."); Smith, 959 S.W.2d at 20-21 ("a 'benefit'
could . . . be anything to which a price can be assigned"). Based on the definition of the term
"benefit" and the Ethics Commission's determinations, a court likely would find that the receipt of
third-party-administrator services for free or for a reduced fee constitutes a benefit.
Section 9(a)(6) suggests, however, that the benefit must flow to the educational institution.
See TEX.REV. CIV. STAT.ANN. art. 6228a-5, 5 9(a)(6) (Vernon Supp. 2007) ("An educational
institution may not accept any benefit. . . ."). Depending upon how the educational institution and
third-party administrator structure their contractual arrangement, it may be the educational
institution's employees, not the educational institution itself, that benefit. Determining the
beneficiary in any particular arrangement is a question of fact that cannot be resolved in the opinion
process. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate
to the opinion process.").
D. Section 9(a)(7)
We finally consider section 9(a)(7), which prohibits an educational institution from using
"public funds to recommend a qualified investment product offered by a company or an agent of
a company that offers a qualified investment product." TEX.REV. CIV.STAT.ANN.art. 6228a-5,
tj 9(a)(7) (Vernon Supp. 2007). Whether the use of an affiliated third-party administrator in
particular circumstances constitutes using public funds to recommend qualified 403(b) investment
products sold by a particular company is a question of fact that cannot be resolved in the opinion
process. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate
to the opinion process.").
~ not suggest that a third-party administrator's waiver or reduction of fees is of "minimal value." See
6 Y o do
Request Letter, supra note 1, at 1-3. Therefore, we need not consider here whether article 6228a-5, section 9(a)(6)
excepts benefits of minimal value.
The Honorable Vicki Truitt - Page 9 (GA-0633)
S U M M A R Y
Whether an educational institution violates article 6228a-5,
section 9(a)(4), (6)-(7) of the Revised Civil Statutes by contracting
with a third-party administrator that is affiliated with a company
that sells qualified 403(b) investment products to the educational
institution's employees is a question requiring the resolution of
facts. An educational institution may provide a third-party
administrator that is affiliated with a company offering qualified
403(b) investment products to employees of the educational
institution with exclusive access to employees' financial information
without violating section 9(a)(5), although a court may find a
violation in particular circumstances.
~ttom&&dneral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128430/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 1,2008
The Honorable Rex Emerson Opinion No. GA-0621
Kerr County Attorney
County Courthouse, Suite BA-103 Re: Status of the Kerr County Airport Authority
700 Main Street (RQ-0643-GA)
Kerrville, Texas 78028
Dear Mr. Emerson:
You ask the following questions regarding the status of the Kerr County Airport Authority:
1) Whether the Kerr County Airport Authority created under
H.B. No. 956 can be utilized and the Board populated 37 years after
[the] county election and vote canvassing declaring [the] authority
created.
2) Whether the alternate airport governance created by [the]
City [of Kerrville] and County [of Kerr] after the 1970 election
establishing the Kerr [C]ounty Airport Authority can legally govern
the airport. 1
I. Background
Consideration of your questions necessitates a review of the relevant legal and factual
background. Adopted in 1966, article IX, section 12 of the Texas Constitution provides for the
establishment of airport authorities. See TEX. CONST. art. IX, § 12. This section of the constitution
requires legislative action in order to execute its provisions. See id. The legislative session
immediately following the adoption of the constitutional amendment enacted enabling legislation
(House Bill 956) for the Kerr County Airport Authority ("Authority"), subject to voter approval. See
Act of May 19, 1967, 60th Leg., R.S., ch. 393, §§ 1-29, 1967 Tex. Gen. Laws 896, 896-903
[hereinafter Act of May 19, 1967].
ISee Letter from Honorable Rex Emerson, Kerr County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Oct. 23, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Rex Emerson - Page 2 (GA-0621)
As contemplated in the Authority's enabling legislation, you explain that "Kerr County
accepted and certified [a] citizen's petition for the creation ofa Kerr County Airport Authority" and
called for an election. Request Letter, supra note 1, at 1; see Act of May 19,1967, § 3, at 896-97
(providing for the creation and organization of the Authority). Prior to the election, the enabling
legislation required that "[t]he governing body ofthe city ofKerrville ... determine by majority vote
whether the directors [were] to be appointed or elected." Act of May 19, 1967, § 5(b), at 897. You
tell us that "the City of Kerrville chose to have the Board members appointed." Request Letter,
supra note 1, at 1. You indicate that in May of 1970 the election to create the Authority was held
and that the "Commissioners Court canvassed the votes and declared [that] the Kerr County Airport
Authority was created." Id.
The Authority's enabling legislation provides the following regarding the appointment of
board members:
(a) If the governing body of Kerrville determines that the directors
are to be appointed, the Commissioners Court of Kerr County shall
appoint them within 10 days after declaring the authority creat~d.
(b) To be effective, an appointment to the board must be made after
consultation with, and with the consent of, the governing body of
Kerrville. The governing body shall express its consent by
appropriate resolution.
i\ct of May 19, 1967, § 6(a)-(b), at 897. For reasons that are apparently no longer clear, the
Kerrville City Council and Kerr County Commissioners Court failed to agree upon and appoint the
board as contemplated in the enabling legislation. Request Letter, supra note 1, at 1. 2
In the years since the election, you indicate that "the airport has been managed under either
the Texas Municipal Airport Authority or the Transportation Code." Request Letter, supra note 1,
at 1; see also Comm'rs Letter, supra note 2, at 2-3 (describing various actions taken by the City and
County as to the management ofthe airport). We understand, more specifically, that the airport has
been managed by ajoint board pursuant to state law, currently codified at chapter 22, Transportation
Code, and that this method ofmanaging the airport was initiated just prior to the May 1970 election.'
Request Letter, supra note 1 (Appendices C, D, & K indicating that the City and County took action
to establish ajoint board pursuant tothe Texas Municipal Airports Act on February 24, and February
25, 1970, respectively); Comm'rs Letter, supra note 2, at 2 (explaining that individuals were
appointed to an airport commission pursuant to the Municipal Airports Act just prior to the Airport
Authority election); see also TEX. TRANSP. CODE ANN. §§ 22.003 revisor's note (Vernon 1999)
(explaining that this law was formerly cited as the "Municipal Airports Act"); 22.074 (Vernon Supp.
2007) (providing for creation of a joint board).
2See also Letter from Kerr County Commissioners Court, to Honorable Greg Abbott, Attorney General of
Texas, at 2 (Jan. 14,2008) (on file with the Opinion Committee) [hereinafter Comm'rs Letter].
The Honorable Rex Emerson - Page 3 (GA-0621)
II. Analysis
A. Legal status of the Authority
We begin our analysis by examining the legal status ofthe Authority. Political subdivisions
such as the Authority are authorized by the State, and "[b]eing creatures of the State they can be
destroyed only by their creator." Watts v. Double Oaklndep. Sch. Dist., 377 S.W.2d 779, 780 (Tex.
Civ. App.-Fort Worth 1964, no writ); see also Act ofMay 19,1967, § 19, at 900 ("The [A]uthority
is a body politic and political subdivision of the state ....").
We do not find that the Authority's enabling legislation has ever been repealed. Accord
Request Letter, supra note 1, at 1-2. And no provision for dissolution of the Authority is found in
the authorizing constitutional provision, the enabling legislation, or other state law. TEX. CONST.
art. IX, § 12; Act of May 19, 1967, §§ 1-29, at 896-903; cf, e.g., TEX. CONST. Art. IX, § 9
(providing for the dissolution ofhospital districts); TEX. WATERCODE ANN. § 49.321 (Vernon 2000)
(providing that certain water districts may be dissolved when they are inactive for a period of five
consecutive years). Without authorization, the Authority may not be dissolved. Tex. Att'y Gen. Op.
Nos. JC-0220 3 (2000) at 2 (concluding that a hospital district could not dissolve pursuant to an
election because there was no statutory authority to call and hold a dissolution election); WW-395
(1958) at 3 (explaining that absent specific authority and statutory procedure an inactive junior
college district could not be dissolved).
Moreover, neither the failure to appoint the board of directors nor the nonuse of its
powers works to dissolve the Authority. Cf Baber v. City ofRosser, 770 S.W.2d 629, 631 (Tex.
App.-Dallas 1989, writ dism'd w.o.j.) (holding that a municipal corporation was not dissolved by
nonuse or failure to elect officers but rather would continue to exist until legally abolished); 'Tex.
Att'y Gen. Op. No. C-721 (1966) at 2 (explaining that inactivity or nonuse in itself will not abolish
a legally created entity). In sum, we conclude that the Authority is still in legal existence.
B. Activation of the Authority
With the understanding that the Authority is still in existence, we tum to the question of
whether the Authority may "be utilized and the Board populated 37 years after [the] county election
and vote canvassing declaring [the] authority created." Request Letter, supra note 1, at 1. In a letter
received by our office from the City of Kerrville ("City"), the city attorney argues that because Kerr
County ("County") did not appoint the board of directors within the ten-day deadline set out in the
enabling legislation of the Authority, it may not now be established. 4
3 This opinion has been modified on other grounds by statute.
4Letter from Michael C. Hayes, City Attorney, to Honorable Greg Abbott, Attorney General ofTexas, at 1(Nov.
29,2007) (on file with the Opinion Committee).
The Honorable Rex Emerson - Page 4 (GA-0621)
The Authority's enabling legislation, as previously recited, does provide that "the
Commissioners Court of Kerr County shall appoint [the board members] within 10 days after
declaring the authority created." Act of May 19, 1967, § 6(a), at 897. To the extent the city
attorney's argument is premised on the fact that the 1970 commissioners court no longer exists to
exercise the power ofappointment, we do not believe this serves as a barrier. We believe that it was
the intent of the Legislature to vest the power of appointment in the commissioner positions, rather
than the specific persons who held those positions in 1970. See Tarrant County v. Ashmore, 635
S.W.2d 417,420-21 (Tex. 1982) (explaining that public offices belong to the people and are given
to particular officeholders temporarily in trust); Tex. Att'y Gen. Ope No. DM-140 (1992) at 2
(concluding that the current commissioners court could serve as the governing body of a drainage
district even though the enabling legislation spoke in terms of the governing board on the effective
date of the Act).
To the extent the city attorney's argument is premised on the notion that appointments made
outside the ten-day window would be invalid, we also disagree. The court in Burton v. Ferrill, 531
S.W.2d 197 (Tex. Civ. App.-Eastland 1975, writ dism'd) considered whether the failure to timely
appoint temporary directors to a hospital district invalidated those appointments. 531 S.W.2d at
198-99. In that case, the hospital district's enabling legislation provided that "[o]n the effective date
of this Act, the Commissioners Court of Comanche County shall appoint five persons to serve as
temporary directors." Id. at 198. The court held that the timing requirement in the enabling
legislation was directory in nature and that the appointments did not have to be made on the effective
date of the legislation to be valid. Id. at 199. The court relied, in part, on the principle of statutory
construction that
[i]f the statute directs, authorizes or commands an act to be done
within a certain time, the absence of words restraining the doing
thereofafterwards or stating the consequences offailure to act within
the time specified, may be considered as a circumstance tending to
support a directory construction.
Id. (quoting Chisholm v. Bewley Mills, 287 S.W.2d 943, 945 (Tex. 1956)); see Helena Chern. Co.
v. Wilkins, 47 S.W.3d 486,495 (Tex. 2001); compare Sullivan v. Tex. Dept. of Pub. Safety, 93
S.W.3d 149,153-54 (Tex. App.-Beaumont2002, no pet.) (Burgess, J., dissenting) (discussing the
fact that when the statutory phraseology denies the exercise of a power after a certain time or
restrains performance after a certain time the statute is generally mandatory in nature); City of
Uvalde v. Burney, 145 S.W. 311,312 (Tex. Civ. App.-SanAntonio 1912, no writ) (explaining that
timing requirements expressed in the negative are necessarily mandatory).
In the case before us no restraining words are attached to the requirement that the County
appoint the board members within ten days ofdeclaring the Authority created. Act ofMay 19, 1967,
§ 6, at 897. And the Legislature did not provide any consequence for noncompliance with the ten-
day requirement. Id. We look then to the statute's purpose in determining the proper consequence
of noncompliance. Helena Chern. Co. v. Wilkins, 47 S.W.3d at 494; Tex. Dep't ofPub. Safety v.
Dear, 999 S.W.2d 148,152 (Tex. App.-Austin 1999, no pet.). The stated purpose of the enabling
The Honorable Rex Emerson - Page 5 (GA-0621)
legislation is "to implement the provisions of Section 12, Article IX, Constitution of the State of
Texas, by providing a method for the creation, administration, and operation of an airport authority
in Kerr County." Act of May 19, 1967, § 1, at 896. Utilizing the rules of construction set out herein
and giving reasonable effect to the legislative purpose of providing a method to create, administer,
and operate the Authority, we conclude that the ten-day appointment requirement is directory in
nature. To conclude otherwise would require the Authority to lie dormant. "A directory provision
is, by definition, one 'the observance of which is not necessary to the validity of the proceeding. ,,,
Dear, 999 S.W.2d at 151 (citation omitted). Thus, we conclude that appointments to the board of
the Authority may still be made as directed by the enabling legislation and.will not be invalid for
failure to comply with the ten-day deadline.
Our conclusion here that the Authority may be activated thirty-seven years after its creation
by appointing a board of directors is consistent with a previous attorney general opinion that
considered similar issues. See Tex. Att'y Gen. Ope No. C-721 (1966) at 1-2 (concluding that a
junior college district could be reactivated some thirty years after its establishment by complying
with state law requirements as to the operation and governance ofjunior college districts).
c. Governance of the airport
We now turn to your question of"[w]hether the alternate airport governance created by [the]
City and County after5 the 1970 election establishing the Kerr [C]ounty Airport Authority can legally
govern the airport." Request Letter, supra note 1, at 1 (footnote added). You assert that once
"the voters approved the Airport Authority and the Commissioners declared the Authority 'created'
... any other form of governance flies in the face of the voters' intent." Id. at 2.
To answer your question, we focus on provisions of the Authority's enabling legislation.
Section 18 of the enabling legislation provides that the City and County
may sell, give, or lease their interest in any airport facility to the
authority. The transfer may be consummated without the city or
county giving notice of its intention to sell, give, or lease the airport
facility to the authority, and without an election on the part ofthe city,
county, or authority.
Act of May 19,1967, § 18, at 900; see also TEX. TRANSP. CODE ANN. § 22.080(a)(2) (Vernon 1999)
(providing a joint board may not dispose of an airport without the consent of each governing
authority of the board's constituent agencies). Conversely, the enabling legislation provides: "The
[A]uthority may acquire by purchase, gift, or eminent domain any interest in any existing airport
facility publicly owned and financed and served by a certificated airline." Act of May 19, 1967,
§ 14(a), at 899.
5Based on the background information you provided and information from the County, we note that the joint
board was, in fact, created just prior to the May 1970 election. See supra p. 2.
The Honorable Rex Emerson - Page 6 (GA-0621)
Thus, the Authority did not upon its creation automatically take over any existing airport
facility. Rather, the enabling legislation contemplates that the Authority may acquire such facilities
and the City and County may sell, give, or lease such facilities. We have no information indicating
that the City and County have taken action to sell, give, or lease their interests in the 'airport to the
Authority or that the Authority has taken action to acquire the same. And we find nothing in article
IX, section 12 of the Texas Constitution, the Authority's enabling legislation, or chapter 22 of the
Transportation Code that expressly prohibits the operation ofa joint board in the same geographical
territory where an airport authority is established. 6 Unless and until the City and County take action
to sell, give, or lease their interests in the airport to the Authority, we conclude that the City and
County may manage the airport in any manner authorized by state law, including via a joint board.
See TEX. TRANSP. CODE ANN. § 22.074 (Vernon Supp. 2007) (providing for creation of a joint
board).
6 We note that cities and counties are prohibited from acquiring or taking over an airport owned or controlled
by another city, county, or public agency of this state without consent. See TEX. TRANSP. CODE ANN. § 22.011(d)
(Vernon 1999); id. 22.001(6) (defining local government). To the extent one might argue the Authority is a "public
agency of this state," this provision would not serve as a barrier here because the City and County have not transferred
any interest to the Authority. That is, the Authority does not own or control the airport.
The Honorable Rex Emerson - Page 7 (GA-0621)
SUMMARY
The KerrCounty Airport Authority ("Authority"), established
in 1970, is still in legal existence, and the board of directors may be
appointed. Because the City ofKerrville and County ofKerr have not
sold, given, or leased their interests in the airport to the Authority,
they may govern the airport via a joint board under chapter 22,
Transportation Code.
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125012/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 21, 2015
The Honorable Marco A. Montemayor Opinion No. KP-0052
Webb County Attorney
1110 Washington Street, Suite 301 Re: Authority of a commissioners court,
Laredo, Texas 78040 after adoption of the budget, to adopt a
standing budget policy that automatically
reduces the salary line item of an employee of
an elected official upon the employee's
departure from the position (RQ-0033-KP)
Dear Mr. Montemayor:
You ask about a commissioners court's authority, after adopting its annual budget, to adopt
a standing budget policy that automatically reduces the salary line item for a position when an
employee departs from the position. 1 You state that the Webb County Commissioners Court
adopted its 2014-2015 fiscal year budget on September 22, 2014, under subchapter B of the Local
Government Code. Request Letter at 2-3. You further state that in November 2014, the
commissioners court adopted "standing orders" or budget policy "requiring that during the fiscal
year, the county administrative services department [the "Department"] will immediately reduce
the salary, as directed by [the county's adopted policy], upon the vacancy of any county employee
slot, regardless of department or elected office." Id. at 3. You explain that the "policy requires all
salaries of vacated slots ... to be reduced to an original starting point which is drastically lower.
than the originally budgeted, approved and adopted salary." Id. You further explain that a
reduction pursuant to the policy requires no action by the commissioners court and is executed
according to a predetermined line-item transfer of the excess to another line item. Id. at 4. You
inform us that, after the court coordinator for the 406th District Court retired during the year, the
district judge for the court hired a new court coordinator and requested that compensation for the
position continue at the salary level budgeted in September 2014. Id. at 3. You state that the
Department refused the compensation request due to the standing-orders policy that would require
a reduction in salary for a position that has been vacated and filled by a new employee. Id. You
further state, however, that the commissioners court has agreed to pay the court coordinator for
the remainder of the fiscal year the amount budgeted in September 2014. Id.
While your- questions contain multifarious sub-issues, in essence you ask two questions.
The first is whether a commissioners court is authorized to adopt standing orders to reduce a
position's salary when the position has been vacated and filled by a new employee, without further
1
See Letter from Honorable Marco A. Montemayor, Webb Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at l (July 15, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Marco A. Montemayor - Page 2 (KP-0052)
action by the comm1ss10ners court. The second question 1s whether such orders may be
implemented with respect to a court coordinator.
A commissioners court has "only those powers expressly given by either the Texas
Constitution or the Legislature" and "the implied authority to exercise the power necessary to
accomplish its assigned duty." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 28 (Tex.
2003). But a commissioners court's duty to manage a county's financial affairs "carries with it
broad discretion in making budgetary decisions." Griffin v. Birkman, 266 S.W.3d 189, 194 (Tex.
App.-Austin 2008, pet. denied). A commissioners court has general authority to set the salaries
of most county employees. TEX. Loe. Gov'T CODE§ 152.011. Salary levels are among the fiscal
matters considered during the preparation of the county's annual budget under one of three
subchapters in chapter 111 of the Local Government Code that are applicable to particular
counties. Id. §§ 111.001-.014 (subchapter A, budget preparation in counties with a population of
225,000 or less), .031-.045 (subchapter B, budget preparation in counties with a population of
more than 225, 000), .061-. 07 5 (subchapter C, alternative method of budget preparation in counties
with a population of more than 125,000). After final adoption of the county's budget, the
commissioners court must "spend county funds only in strict compliance with the budget," with
limited exceptions. Id. §§ 111.0lO(b), .041(b), .070(a). Thus, once a salary has been approved
and adopted in the final budget, it cannot be reduced except as permitted under chapter 111. See
Tex. Att'y Gen. Op. No. JC-0131 (1999) at 3 (stating "once the salaries of county officers and
employees are set, the salaries may not be reduced, outside of the regular budget adoption and
amendment process").
Chapter 111 provides two exceptions that allow a commissioners court to amend a final
budget. First, the final budget may be amended for an emergency expenditure, but only in "a case
of grave public necessity to meet an unusual and unforeseen condition that could not have been
included in the original budget through the use of reasonably diligent thought and attention." TEX.
Loe. Gov'T CODE§§ 111.0lO(c), .041(b), .070(b). Because, as you describe it, the standing order
·to reduce a salary is automatic without regard to particular circumstances, it is not authorized under
the emergency exception. Second, a commissioners court may amend the budget outside of an
emergency by transferring an amount budgeted for one item to another budgeted item. Id.
§§ 111.0lO(d), .041(c), .070(c)(l). In particular circumstances, courts have upheld the reduction
of a salary by transfer from one budgeted item to another. See Gattis v. Duty, 349 S.W.3d 193,
207 (Tex. App.-Austin 2011, no pet.); Griffin, 266 S.W.3d at 201-02. We are not aware of any
provision in chapter 111 that prohibits as a matter oflaw the adoption of an order that automatically
transfers funds budgeted for a position when the position has been vacated and filled by a new
employee. 2 But whether a commissioners court may transfer funds budgeted for the salary of a
2
A commissioners court may not delegate its powers requiring the exercise of judgment and discretion absent
statutory authority. Guerra v. Rodriguez, 239 S.W.2d 915, 920 (Tex. eiv. App.-San Antonio 1951, no writ).
Accordingly, a commissioners court may not delegate its discretionary authority to transfer funds from one item to
another except as authorized by law. See Tex. Att'y Gen. Op. No. GA-0154 (2004) at 4. But see TEX. Loe. Gov'T
CODE§ 11 l.070(c) (2) (authorizing a commissioners court in a county operating under subchapter C, to designate
another officer or employee to "amendthe budget by transferring amounts budgeted for certain items to other budgeted
The Honorable Marco A. Montemayor - Page 3 (KP-0052)
specific employee consistently with chapter 111 and other applicable law depends on the particular
circumstances. For example, a commissioners court may not exercise its budgetary authority over
salaries to transfer funds in a manner that prevents an elected officer from performing the duties
of office. Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5. ·
More importantly, the commissioners court's authority to reduce the salary of a particular
employee may be limited by other law. The compensation of several officers and employees is
governed by other statutes specifically applicable to the officer or employee. See, e.g., TEX. Gov'T
CODE§§ 41.106 (staff of prosecuting attorney), 52.051 (district court reporter); TEX. Loe. Gov'T
CODE§ 152.013(a) (elected county officials). Thus, while a commissioners court may have general
authority to adopt standing orders to reduce compensation for a position that has been vacated and
filled by a new employee, whether the policy may be implemented with respect to a particular
· position depends on whether other law governs the compensation for the position. As this office
has previously noted, "[s]tatutes specifically applicable to a particular county officer may provide
the officer with more or less authority, relative to the commissioners court, and may lead to a
different result." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 1 (determining that the
commissioners court did not have the authority to reduce compensation of an elected county
official's employee under particular circumstances). ·
The second question concerns the compensation of court coordinators under section 74 .104
of the Government Code. Request Letter at 2. The statute provides:
(a) The judges shall determine reasonable compensation for the
court coordinators, subject to approval of the commissioners
court.
(b) Upon approval by the commissioners court of the position and
compensation, the commissioners court of the county shall
provide the necessary funding through the county's budget
process. County funds may be supplemented in whole or part
through public or private grants.
TEX. Gov'T CODE § 74.104. Under section 74.104, it takes two actions to establish a court
reporter's compensation: the judge must determine reasonable compensation and the
commissioners court must approve it. Id. The statute does not authorize a commissioners court
to unilaterally set the court coordinator's salary without the judge's determination of reasonable
compensation. As this office observed about a similar statute, section 74.104 appears designed to
require the judge and the commissioners court to establish a court coordinator's compensation by
collaboration, giving neither final authority to set the salary. See Tex. Att'y Gen. Op. No. GA-
0952 (2012) at 2 (construing the statutory authority of the county judge and commissioners court
to establish the salary of the Van Zandt County Court at Law court reporter). A standing order
that automatically reduces the court coordinator's salary upon the happening of a contingency
infringes on the judge's authority to determine reasonable compensation in contravention of
items"). A commissioners court may delegate ministerial or administrative tasks necessary to carry out its budgetary
responsibilities, provided that it does not delegate its discretionary decision-making authority. See Tex. Att'y Gen.
Op. No. GA-0839 (2011) at 2-3.
The Honorable Marco A. Montemayor - Page 4 (KP-0052)
subsection 74.104(a). Accordingly, section 74.104 of the Government Code does not permit a
commissioners court to reduce a court coordinator's salary by automatic operation of standing
county policy without a determination of reasonable compensation by the judge who selected the
court coordinator.
The Honorable Marco A. Montemayor - Page 5 (KP-0052)
SUMMARY
Chapter 111 of the Local Government Code does not
prohibit as a matter of law the adoption of an order that
automatically transfers funds to reduce compensation for a position
when the position has been vacated and filled by a new employee.
Whether a commissioners court may implement such an order with
respect to a specific position depends on the particular
circumstances, including any law that specifically governs
compensation for the position.
Section 74.104 of the Government Code does not permit a
commissioners court to reduce · a court coordinator's salary by
automatic operation of standing commissioners court orders without
a determination of reasonable compensation by the judge who
selected the court coordinator.
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/4128520/ | GREG A B B O T T
August 14,2007
Mr. James A. Cox, Jr., Chair Opinion No. GA-0563
Texas Lottery Commission
Post Office Box 16630 Re: Eligibility for a manufacturer's or distributor's
Austin, Texas 78761-6630 license under the Bingo Enabling Act, chapter
2001 of the Occupations Code (RQ-0573-GA)
Dear Mr. Cox:
Under the Bingo Enabling Act, chapter 2001 of the Occupations Code (the "Act"), the Texas
Lottery Commission (the "Commission") licenses manufacturers and distributors of bingo equipment
and supplies. See TEX. OCC. CODEANN. tjtj 2001.201, .206 (Vernon 2004). Under sections
2001.202 and 2001.207 of the Act, a person holding an "equitable or credit interest" in another
distributor or manufacturer or an applicant required to name such persons in its application is
generally ineligible for a manufacturer's or distributor's license. See id. $5 2001.202(8)-(9),
.207(8)-(9). On behalf of the Commission, you ask whether "a person is ineligible for a bingo
manufacturer's or distributor's license . . . if an individual required to be named in the license
application holds a ten percent or more proprietary, equitable, or credit interest in a holding company
that has a proprietary, equitable, or credit interest in [another] manufacturer or distributor."' We first
consider the relevant provisions of the Act.
I. Statutory Background
The Act generally requires persons involved in the bingo industry, including bingo
distributors and manufacturer^,^ to be licensed by the Commission. See, e.g.,id.$5 200 1.101, .15 1,
.201, .206, .251; see also Tex. Att'y Gen. Op. No. GA-0186 (2004) at 1 (stating that the Act
generally requires licensing of "all persons . . . involved in any aspect of the bingo industry"). An
unlicensed manufacturer "may not sell or supply to a person in this state or for use in this state bingo
'See Letter £tom James A. Cox, Jr., Chair, Texas Lottery Commission, to Honorable Greg Abbott, Attorney
General of Texas, at 1 (Feb. 23,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
(footnote omitted) [hereinafter Request Letter].
'A "distributor" is "a person who obtains . . . bingo equipment or supplies for use in bingo in this state and sells
or fhmishes the items to another person for use, resale, display, or operation." TEX.OCC.CODEANN. 4 2001.002(9)
(Vernon 2004). And a "manufacturer" is, in general, a person who assembles bingo equipment or supplies or who
converts bingo equipment or items to further promote the sale or use of the same in the state. See id. 3 2001.002(16).
Mr. James A. Cox, Jr. - Page 2 (GA-0563)
cards, boards, sheets, pads, or other supplies, or equipment designed to be used in playing bingo, or
engage in any intrastate activity involving those items." TEX.OCC.CODEANN.5 2001.201 (Vernon
2004). Similarly, an unlicensed distributor "may not sell, distribute, or supply bingo equipment or
supplies for use in bingo in this state." Id. 5 2001.206. Moreover, a manufacturer is ineligible
for a distributor's license and a distributor is ineligible for a manufacturer's license. See id.
$5 2001.202(6), .207(6).
Sections 200 1.202(relating to manufacturers) and 200 1.207(relatingto distributors)provide,
in essentially identical language, that the following persons, among others, are ineligible for
manufacturers' and distributors' licenses, respectively:
(8) an owner, officer, director, or shareholder of, or aperson
holding an equitable or credit interest in, another manufacturer or
distributor licensed or required to be licensed under this chapter; or
(9) a person:
(A) in which aperson described by Subdivision (I), (2),
(3), (4), (9,(6), (7), or (8) or in which a person married or related in
the first degree by consanguinity or affinity to one of those persons
has greater than a 10 percent proprietary, equitable, or credit interest
or in which one of those persons is active or employed; or
(B) in whose application for a [manufacturer's or
distributor's] license a person described by Subdivision (I), (2), (3),
(4), (9,(6), (7), or (8) is required to be named.
Id. 5 2001.202(8)-(9) (emphasis added); see id. 5 2001.207(8)-(9) (using essentially the same
language). Under the Act, a "person" is defined to "mean[] an individual, partnership, corporation,
or other group." Id. 5 2001.002(20).
You ask about an applicant required to list in its application an individual who holds ten
percent or more of an equitable or credit interest in a holding company that in turn has an equitable
or credit interest in another licensed manufacturer or distributor, but you do not indicate whether the
applicant is corporate or noncorporate. See Request Letter, supra note 1, at 1.3 A noncorporate
applicant must list in its application to the Commission the "name and home address of each owner."
TEX.OCC.CODEANN.$5 2001.203(b)(3)(A), .208(3) (Vernon 2004). And a corporate applicant for
a license must list the name of each person that owns ten percent or more of stock in the applicant
as well as the name of each officer and director. Id. $5 2001.203(b)(3)(B), .208(4). Because both
corporate and noncorporate applicants must list individuals with the described relationship to the
~ about "a proprietary, equitable, or credit" interest. See Request Letter, supra note 1, at 1. We note,
3 Y o ask
however, that sections 2001.202(8) and 2001.207(8), which are the relevant provisions here, do not reference
"proprietary" interest. See TEX.OCC.CODEANN.§ § 2001.202(8), .207(8) (Vernon 2004).
Mr. James A. Cox, Jr. - Page 3 (GA-0563)
applicant, your question is not limited to any particular type of applicant and, on its face, implicates
sections 2001.202(9)(B) and 2001.207(9)(B), which incorporate sections 2001.202(8) and
2001.207(8). See id. $5 2001.202(9)(B), .207(9)(B).
Under sections 200 1.202(9)(B) and 200 1.207(9)(B), an applicant required in its application
to name a person described by any of the subdivisions (1) through (8) of sections 2001.202 and
2001.207, respectively, is ineligible for a license. See id. $5 2001.202(9)(B), . 2 0 7 ( 9 ) ( ~ ) ."[A]
~
person [holding or having] an equitable or credit interest in, another manufacturer or distributor" is
a person described by subdivision (8) of each of these statute^.^ Id. $5 2001.202(8), .207(8).
11. Analysis
Thus, your question requires us to construe sections 2001.202(8) and 2001.207(8) and
determine whether an individual, solely by virtue of his or her ownership of an equitable or credit
interest in a holding company, holds an equitable or credit interest in a subsidiary bingo
manufacturer or distributor company.
If the statutory language is unambiguous, courts will "generally interpret the statute according
to its plain meaning." City of Sun Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003); see
also TEX.GOV'TCODEANN.$ 3 11.011(a) (Vernon 2005) ("Words and phrases shall be read in
context and construed according to the rules of grammar and common usage."). Accordingly, we
begin with the plain language of sections 2001.202(8) and 2001.207(8). Subdivision (8) of each
statute renders ineligible for a manufacturer's or distributor's license "an owner, officer, director,
or shareholder of, or a person [holding or having] an equitable or credit interest in, another
manufacturer or distributor." TEX. OCC.CODEANN. $8 2001.202(8), .207(8) (Vernon 2004)
(emphasis added); see also id. $5 2001.202(9)(B), .207(9)(B) (providing that persons required to
name persons described by subdivision (8) are ineligible for a license). By their plain language, the
statutes require the person in question to hold or possess the equitable or credit interest in the other
manufacturer or distributor. See id. $5 2001.202(8), .207(8).
But the person in question here-the individual required to be named by the applicant for a
license--does not hold the equitable or credit interest in the other manufacturer or distributor. See
4Suchan applicant may also be ineligible for a license under sections 200 1.202(9)(A) and 200 1.207(9)(A). See
TEX.OCC.CODEANN. $5 200 1.202(9)(A), .207(9)(A) (Vernon 2004). We do not consider these provisions because you
do not describe the individual's relationship to the applicant. Moreover, your concern here is with the meaning of
sections 2001.202(8) and 2001.207(8). See Request Letter, supra note 1, at 1-2.
'You ask about an individual holding ten percent or more of an equitable or credit interest in a holding company
that holds an equitable or credit interest in a manufacturer or distributor. See id. We note, however, that neither section
200 1.202(8) nor section 200 1.207(8) of the Act limits its application to a person holding a certain percentage of equitable
or credit interest in another manufacturer or distributor; it applies to a person holding any percentage of such interest.
See TEX.OCC.CODEANN.$ 5 200 1.202(8)(B), .207(8)(B) (Vernon 2004); cJ: Tex. Att'y Gen. Op. No. GA-0186 (2004)
at 4 (stating that neither section 2001.202(8) nor section 2001.207(8) requires any particular percentage of ownership
of shares).
Mr. James A. Cox, Jr. - Page 4 (GA-0563)
Request Letter, supra note 1, at 1-2. Instead, you tell us that the holding company holds such
equitable or credit interest. See id. The Act does not reference or define a "holding company," but
we understand you to refer to a company that owns "securities by which it is possible to control or
substantially to influence the policies and management of one or more operating companies in a
particular field of enterpri~e."~ N. Am. Co. v. S.E. C., 327 U.S. 686, 701 (1946).
While a holding company may control the subsidiary company, the holding company and the
subsidiary are distinct and separate legal entities. See CNOOC Se. Asia Ltd. v. Paladin Res.
(SUNDA) Ltd., 222 S.W.3d 889,898 (Tex. App.-Dallas 2007, no pet. h.); Docudata Records Mgmt.
Servs., Inc. v. Wieser, 966 S.W.2d 192,197 (Tex. App.-Houston [1st Dist.] 1998, pet. denied); see
also I & J C Corp. v. Helen of Troy L.P., 164 S.W.3d 877, 889-90 (Tex. App.-El Paso 2005, pet.
denied) (discussing general distinction between a parent company and its subsidiary and when they
may be "fused" for the purposes of a legal proceeding). The distinction between a holding company
and its subsidiary will not generally be disregarded because "disregard of the 'legal fiction of
corporate entity' is 'an exception to the general rule which forbids disregarding corporate
existence."' Lucas v. Tex. Indus., Inc., 696 S.W.2d 372,374 (Tex. 1984) (quoting First Nut 'I Bank
in Canyon v. Gamble, 132 S.W.2d 100,103 (Tex. 1939)). Texas courts will not "because of stock
ownership or interlocking directorship disregard the separate legal identities of corporations, unless
such relationship is used to defeat public convenience, justify wrongs, such as violation of the anti-
trust laws, protect fraud, or defend crime." I & J C Corp., 164 S.W.3d at 889 (quoting Bell Oil &
Gas Co. v. Allied Chem. Corp., 43 1 S.W.2d 336, 339 (Tex. 1968)); see also Town Hall Estates-
Whitney, Inc. v. Winters, 220 S.W.3d 76, 86 (Tex. App.-Waco 2007, no pet.) ("There must be
something more than mere unity of financial interest, ownership and control for a court to treat the
subsidiary as the alter ego of the parent and make the parent liable for the subsidiary's tort.").
Because the holding company is a separate legal entity from its subsidiary manufacturer or
distributor, the individual in question does not hold, as a matter of law, an equitable or credit interest
in the subsidiary manufacturer or distributor by virtue of his or her equitable or credit interest in the
holding company. It is possible, however, that a holding company and its subsidiary might, in
particular circumstances, be treated as a single entity and an equitable or credit interest in a holding
company determined to be an equitable or credit interest in the subsidiary company. CJ: I & J C
Corp., 164 S.W.3d at 889 (stating general rule that separate corporate identities will not be
disregarded by Texas courts unless the relationship is used to defeat public convenience, justify
wrongs, protect fraud, or defend crime). However, that determination would be a fact-sensitive
inquiry made by a court with the appropriate jurisdiction over the particular legal proceedings. See
id.
6See, e.g., TEX.BUS.ORGS.CODEANN.Ij 10.005(a)(2) (Vernon 2006) ("'Holding company' means a domestic
entity that, fkom its organization until a merger takes effect, was at all times a direct or indirect wholly owned subsidiary
ofthe merging domestic entity and the ownership or membership interests of which are issued to the members or owners
of the merging domestic entity in the merger."); TEX.FIN.CODEANN. § 91.002(16) (Vernon Supp. 2006) ("'Holding
company' means a company that directly or indirectly controls a savings bank or controls another company that directly
or indirectly controls a savings bank."); TEX.INS.CODEANN.5 823.002(5) (Vernon 2006) ("'Holding company' means
a person who directly or indirectly controls an insurer.").
Mr. James A. Cox, Jr. - Page 5 (GA-0563)
Your letter suggests that the terms "equitable or credit interest" in sections 2001.202(8) and
2001.207(8) may reach the "interest" that the individual in question has or may have-through the
holding company-in the separate subsidiary manufacturer or distributor. See Request Letter, supra
note 1, at 2 ("Does this sort of relationship [among the applicant, the individual, the holding
company, and the subsidiary manufacturer or distributor] create an "equitable, proprietary or credit
interest?"). The Act does not define "equitable interest" or "credit interest." And we have found no
other statutory or judicial decisions defining such terms in this or a similar context. But read in the
context of sections 200 1.202(8) and 200 1.207(8), "equitable interest" appears to contemplate some
type of beneficial interest in another bingo manufacturer or distributor. See TEX.OCC.CODEANN.
2001.202(8), .207(8) (Vernon 2004); see also TEX.GOV'TCODEANN.5 31 1.011(a) (Vernon
2005) ("Words and phrases shall be read in context and construed according to the rules of grammar
and common usage."); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937,939 (Tex.
1993) ("When the legislature has failed to define a word or term, courts will apply its ordinary
meaning.").7 And "credit interest," read in the statutory and commercial context here, appears to
refer broadly to any right or claim to repayment for money loaned or advanced to another
manufacturer or distributor regardless of the profitability of that entity or ~ e n t u r e Read
. ~ in context,
the term "equitable or credit interest" does not encompass, as a matter of law, the individual's
"interest," if any, in the subsidiary manufacturer or distributor.
The individual here holds some type of beneficial interest in or has a right or claim to be
repaid moneys from the holding company rather than from the subsidiary manufacturer or distributor
company. Again, because the holding company is a separate legal entity from its subsidiary bingo
manufacturer or distributor, the individual does not possess, as a matter of law, a beneficial interest
in the subsidiary or a monetary claim against the subsidiary solely by virtue of his or her interest in
the holding company. It is entirely possible that in particular circumstances, such an individual may
possess or be deemed to possess a beneficial interestgin the subsidiary manufacturer or distributor
notwithstanding its legal separation from the holding company. But, that determination must be
made by the Commission or a court based on the particular factual circumstances.
We recognize that a holding company might be used as a device to circumvent the Act's
ownership and interest restrictions in its licensing requirements. But, like a court, this office cannot
disregard the plain language of the statute or insert words into the statute to foreclose that possibility.
'See MERRIAM-WEBSTER'S COLLEGIATEDICTIONARY 423 (1 1th ed. 2005) (defining "equitable" in the sense of
"existing or valid in equity as distinguished from law"); BLACK'SLAWDICTIONARY 816 (7th ed. 1999) (defining
"equitable interest" as "[aln interest held by virtue of an equitable title or claimed on equitable grounds, such as the
interest held by a trust beneficiary").
'See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 294 (1 lth ed. 2005) (defming "creditor" as "one to whom
a debt is owed"); WEBSTER'S NEWWORLDFINANCE AND INVESTMENT DICTIONARY 83,85 (2003) (defining "credit" as
"[alny money lent through bonds or loans" that "must be paid back or the borrower risks defaulting," and a "creditor"
as "[aln entity that has a monetary claim against a debtor"); see also Bauer v. Comm 'r of Internal Revenue, 748 F.2d
1365, 1367 (distinguishing between shareholder and creditor).
'See supra note 8.
Mr. James A. Cox, Jr. - Page 6 (GA-0563)
See R.R. Comm 'n of Tex. v. Miller, 434 S.W.2d 670,672 (Tex. 1968) (stating that because courts
are not the law-making body, they are not responsible for omissions in legislation but only for
interpreting the statute as written, quoting Simmons v. Amim, 22 S.W. 66,70 (Tex. 1920)); see also
McIntyre v. Ramirez, 109 S.W.3d 741,748 (Tex. 2003) (stating that a court's role is not to second-
guess the Legislature's policy choices informing a statute or to weigh the effectiveness of their
results). It is the Legislature's responsibility to impose restrictions, if any, in the statutory language
that it deems necessary or desirable. See Holmes v. Morales, 924 S.W.2d 920,925 (Tex. 1996); see
also Seay v. Hall, 677 S.W.2d 19,25 (Tex. 1984) ("[Ilt would be an usurpation of our powers to add
language to a law where the legislature has refrained.").
Nor can this office disregard the separate legal identities of a holding company and its
subsidiary manufacturer or distributor to avert that possibility. First, this office cannot ignore or
overrule judicial decisions generally recognizing the distinction between a holding company and its
subsidiary. See supra pp. 3-4; see also Tex. Att'y Gen. Op. No. JC-0507 (2002) at 8 ("[Tlhe Office
of the Attorney General cannot overrule a judicial decision."). Second, while courts have the
authority to disregard separate corporate identities in particular instances when necessary for the
public convenience or to prevent violations of the law, they do so sparingly and after a fact-intensive
analysis. Cf I & J C Corp., 164 S.W.3d at 889.
111. Conclusion
In response to your question, we conclude that an applicant that must list in its application
an individual who holds ten percent or more of an equitable or credit interest in a holding company
that, in turn, holds an equitable or credit interest in another subsidiary bingo manufacturer or
distributor company, is not ineligible as a matter of law for a distributor's or manufacturer's license
under the Act.
Mr. James A. Cox, Jr. - Page 7
S U M M A R Y
Under the Bingo Enabling Act, chapter 2001 of the
Occupations Code, an applicant required to list in its application an
individual who holds ten percent or more of an equitable or credit
interest in a holding company that, in turn, holds an equitable or
credit interest in another subsidiary manufacturer or distributor
company, is not ineligible as a matter of law for a distributor's or
manufacturer's license. Because the holding company and its
subsidiary are treated as separate and distinct legal entities under
Texas law, the individual does not hold, as a matter of law, an
equitable or credit interest in the subsidiary bingo manufacturer or
distributor by virtue of his or her equitable or credit interest in the
holding company.
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124962/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
July 13, 2016
The Honorable Ana Markowski Smith Opinion No. KP-0102
Val Verde County Attorney
207 East Losoya Street Re: Whether a school district board of trustees
Del Rio, Texas 78840 may fill a vacancy through a special election on
a uniform election date more than 180 days from
the onset of the vacancy (RQ-0091-KP)
Dear Ms. Smith:
You ask whether an: independent school district board of trustees may fill a vacancy
through a special election on a uniform election date more than 180 days from the onset of the
vacancy. 1 You state that a member of the board of trustees of the San Felipe Del Rio Consolidated
Independent School District (the "District") retired on October 14, 2015, creating a vacancy in a
term that does not expire until May 2018. Request Letter at 1. Section 11.060 of the Education
Code provides:
(a) If a vacancy occurs on the board of trustees of an independent
school district, the remaining trustees may fill the vacancy by
appointment until the next trustee election.
(c) Instead of filling a vacancy by appointment under Subsection (a)
... , the board or municipal governing body may order a special
election to fill the vacancy. A special election is conducted in
the same manner as the district's general election except as
provided by the Electfon Code.
(d) If more than one year remains in the term of the position vacated,
the vacancy shall be filled under this section not later than the
180th day after the date the vacancy occurs.
1
Letter from Honorable Ana Markowski Smith, Val Verde Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Jan. 20, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Ana Markowski Smith - Page 2 (KP-0102)
TEX. EDUC. CODE § 11.060. Thus, the statute authorizes appointment and special election as
alternative methods of filling a vacancy. Id.§ 1 l.060(a), (c). Here, because the trustee resigned
with more than a year remaining in his term, subsection (d) creates a period for filling the vacancy
of 180 days from October 14, 2015, or until April 11, 2016. Id.§ 1 l.060(d); see Request Letter at
1.2
Subsection 11.060(c) recognizes that there may be exceptions in the Election Code
pertaining to the district's conducting a special election. See TEX. EDUC. CODE§ l l.060(c). The
Election Code "applies to all general, special, and primary elections held in this state" and
"supersedes a conflicting statute outside" of the Election Code unless a statute expressly provides
otherwise. TEX. ELEC. CODE§ l.002(a), (b). Subsection 41.00l(a) of the Election Code designates
uniform election dates:
(1) the first Saturday in May in an odd-numbered year;
(2) the first 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.
Id § 41.00l(a). "[E]ach general or special election in this state" must be held on one of these dates
"[ e]xcept as otherwise provided" by chapter 41, subchapter A of the Election Code. Id. After the
trustee's resignation in October 2015, the next two uniform election dates were November 3, 2015,
and May 7, 2016. Id.; Request Letter at 2-3. The November 3 date, however, would not have
allowed enough time after the resignation to issue an order sufficiently in advance of the election
as required by subsection 201.052(a) of the Election Code. TEX. ELEC. CODE § 201.052(a)
(generally requiring a special election to fill a vacancy to "be held on the first authorized uniform
election date occurring on or after the 46th day after the date the election is ordered"). A special
election ordered earlier than 46 days before the May 7 uniform election date would comport with
subsection 201.052(a) of the Election Code. ld. 3 But an election on May 7 would not have filled
the vacancy on the Board within 180 days of the onset of the vacancy as specified by subsection
11.060(d) of the Education Code. See TEX. EDUC. CODE § 11.060(d); Request Letter at 1.
2
Subsection 11.060(d) states that the vacancy "shall" be filled within the 180-day period. TEX. EDUC. CODE
§ 11.060(d). While the word "shall" is generally construed as mandatory, it is sometimes held to be directory,
particularly when a statute sets a time for taking some action but does not restrict or provide consequences for taking
the action at a different time. Lewis v. Jacksonville Bldg. & Loan Ass 'n, 540 S.W.2d 307, 310 (Tex. 1976); see also
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001) ("Ifa provision requires that an act be performed within
a certain time without any words restraining the act's performance after that time, the timing provision is usually
directory."); Burton v. Ferrill, 531 S.W.2d 197, 198-99 (Tex. Civ. App.-Eastland 1975, writ dism'd) (determining
that a statute providing that temporary directors "shall" be appointed on a certain date was directory with respect to
the date of appointment).
3The Board's February 15, 2016 order to hold a special election on May 7, 2016 to fill Place 1 on the board
is posted on the District's website. See http://www.sfdr-cisd.org/sites/default/files/Order%20of>/o20Election
%20For%200ther%20Political%20Subdivisions%20Place% 201.pdf.
The Honorable Ana Markowski Smith - Page 3 (KP-0102)
Subsection 41.004(a) of the Election Code addresses potential difficulties with conducting
a special election within a particular statutory period:
(a) If a law outside this code ... requires a special election subject
to Section 41.00l(a) to be held within a particular period after
the occurrence of a certain event, the election shall be held on an
authorized uniform election date occurring within the period
unless no uniform election date within the period affords enough
time to hold the election in the manner required by law. In that
case, the election shall be held on the first authorized uniform
election date occurring after the expiration of the period.
TEX. ELEC. CODE § 41.004(a). Subsection 11.060(d) of the Education Code is a law outside of the
Election Code that "requires a special election ... to be held within a particular period after the
occurrence of a certain event," that is, within 180 days from the occurrence of a vacancy on a board
of trustees. Id.; see TEX. EDUC. CODE§ 11.060(d). As discussed above, "no uniform election date
within the [ 180-day] period affords enough time to hold the election in the manner required by
law." TEX. ELEC. CODE § 41.004(a). Therefore, subsection 41.004(a) of the Election Code
authorizes a special election to fill the vacancy on the Board "on the first authorized uniform
election date occurring after the expiration of the [180-day] period," which was May 7, 2016. Id. 4
4 A brief submitted by the Office of the Texas Secretary of State states that "it is this Office's position that
Section 41.004 of the Texas Election Code supersedes [section 11.060(d)] of the Education Code to the extent of any
conflict, and it is permissible for [the District] to hold its special election on May 7, 2016." Letter from Ms. Lindsey
Wolf, Gen. Counsel, Office of the Tex. Sec'y of State, to Honorable Ken Paxton, Tex. Att'y Gen. at 4 (Feb. 24, 2016).
The brief also discusses other election issues, but because the issues are beyond the scope of your question, we do not
address them in this opinion.
The Honorable Ana Markowski Smith - Page 4 (KP-0102)
SUMMARY
Subsection 11.060 of the Education Code authorizes a board
of trustees of an independent school district to fill a vacancy within
180 days of the occurrence of the vacancy by special election. Ifno
uniform election date falls during the 180-day period that would
afford enough time to hold a special election in the manner required
by law, subsection 41.004(a) of the Election Code authorizes the
board to hold the special election on the first authorized uniform
election date following the 180-day period.
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/4143310/ | I
_. ^.
. ,c, .
,s
soo0mbl.u2. c. s,ism2 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143313/ | .-
Hon. C. Woodrow Laughlin Opinion No. O-3055
County Attorney Re: Does the Commissioners’ court ’
Jim Wells County of Jim Wells County have authority
Alice, Texas to expend funds for establishing,
maintaining and operating a book-
Dear Sir: mobile library?
Your letter of August 8, 1941 requesting the opinion
of this department upon the above state i question has been re-
ceived.
We quote from your letter as follows:
“I submit herewith for your opinion the follow-
ing question:
“‘Does the Commissioners1 Court of Jim Wells
County have authority to expend funds for establigh-
ing, maintaining and operating a bookmob$le li.brary?I
811n\11 Texas Jurisprudence 563 we find that
fcounties, being component part: of Jhe state, have
no powers or duties except i:ose which are clearly
set forth and defined and d lx& in the Constitu-
tion and statutes.1 There Is cited therein the case
of Edwards County vs. Jennings, 33 s.u. 585.
“It is provided in Article 1677, Vernon’s Anno-
tated Revised Civil Statutes of Texas, as follows:
“‘The Commissioners* Court of any ‘county may es-
tablish, maintain, and operate within their respec-
tive Counties county free libraries in the manner
and with func!ions prescribed in this title. . . .1
“Article 1679, Vernon’s Annotated Revised Civil
Statutes of Texas provides that not exceeding five
cents of the General Fond tax shall be set aside an-
nually in the event a county free library is estab-
lished.
“A bookmobile has been described to me a8 a trav-
eling library to be used only in the County and will
not be used in the city limits of Alice.
Hon. C. Woodrow Laughlin, page 2
“It is therefore the opinion of this office
that the Commissioners’ Court of Jim Wells County
has the authority to expend not exceeding five
cents of the General Fund tax for establishing,
maintaining and operating a bookmobile library.”
It is stated in Texas Jurisprudence, Vol. 11, p. 564:
“The Comalssloners~ Court of any county may
establish and maintain county free libraries in
the manner prescribed by statute.*’
In the case of City of Fort Worth, et al. v. Burnett,
et al, 115 S.W. (2d) 436, we find the follming statement:
ItWefind that the new Internat ional Encyclo-
pedia has this to say in defining a library:
‘It is generally held that the library has three
functions: (1) as a storehouse for books and
knowledge; (2) as a laboratory for study and re-
search; (3) as affording sane recreat.i.on.8w
It will be noted that Article 1678, Vernonls Annotated
Civil Statutes, provides in part:
‘1. . . The county library shall be located
at the county seat in the courthouse, unless more
suitable quarters are available.tt .
We think that it is apparent from the above quoted pro-
vision of Article 1678, supra, that the county library must be
located at the county seat and in the courthouse, unless more
suitable quarters are available. In other words we think that
the Legislature intended that the county free 11&y should be
located at the oouhty seat in the courthouse, unless as above
stated, more suitable quarters are available meaning that If
more suitable quarters are available within &he county seat, then
the county free library could be located at such quarters and
not In the courthouse.
Under Title 35, Vernon’s Armotated Civil Statutes re-
lative to county free libraries, the Commisslonerst Court o t any
county is authorized to establish and maintain the county free
library and branches or subdivisions thereof. We do not think
that the Commissioners’ Court of any county has the authority to
expend funds for establishing, maintaining and operating a “book-
mobile librsryw in 1leU of the regular county library which is
to be established at the county seat. However, if the county
Hon. C. Woolrow
Laughlin, page 3
has establishsd, and is malntalnlhg and operating a county free
library at the county seat of such county, then, we think the
Commissioners' Court is authorized to expend funds for establlsh-
ing, maintaining and operating a lfbookmoblle library" as a
branch or subdivision thereof.
Trusting that the foregoing fully answers your inquiry,
we are
Yours very truly
APPROVEDAUG21, 1941 ATTORNEY
GENERALOF TEXAS '
/s/ Gerald C. Mann
ATTORNEYGENERALOFTEXAS By /s/ Ardell wllllams
Ardell Williams, Assistant
APPROVED:OPINION COMMITTEE
BY: GWB, CHAIRMAN
AW:GO:wb | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128497/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 99-303
:
of : June 4, 1999
:
BILL LOCKYER :
Attorney General :
:
ANTHONY S. Da VIGO :
Deputy Attorney General :
:
THE HONORABLE RICHARD E. FLOYD, MEMBER OF THE
CALIFORNIA ASSEMBLY, has requested an opinion on the following questions:
1. Does an incompatible activities statement adopted by the Board of
Administration of the Public Employees’ Retirement System pursuant to Government Code
section 19990 apply to the members of the Board of Administration?
2. May a person who has declared bankruptcy serve on the Board of
Administration of the Public Employees’ Retirement System?
1 99-303
CONCLUSIONS
1. An incompatible activities statement adopted by the Board of
Administration of the Public Employees’ Retirement System pursuant to Government Code
section 19990 does not apply to the members of the Board of Administration.
2. A person who has declared bankruptcy may serve on the Board of
Administration of the Public Employees’ Retirement System.
ANALYSIS
1. Incompatible Activities Statement
The first inquiry is whether an incompatible activities statement adopted by
the Board of Administration (“Board”) of the Public Employees’ Retirement System
(“PERS”) pursuant to Government Code section 199901 applies to the members of the
Board itself. Section 19990 states in part:
“A state officer or employee shall not engage in any employment,
activity, or enterprise which is clearly inconsistent, incompatible, in conflict
with, or inimical to his or her duties as a state officer or employee.
“Each appointing power shall determine, subject to approval of the
department, those activities which, for employees under its jurisdiction, are
inconsistent, incompatible or in conflict with their duties as state officers or
employees. . . .”
We conclude that the Board’s incompatible activities statement adopted under the terms of
section 19990 does not apply to the members of the Board itself.
Preliminarily, we note that the Legislature has enacted a comprehensive
statutory scheme, the Public Employees’ Retirement Law (§§ 20000-21703), governing the
payment of retirement compensation to public employees. (See Pomona Officers’ Assn. v.
City of Pomona (1997) 58 Cal. App. 4th 578, 584-585; Board of Administration v. Wilson
(1997) 52 Cal. App. 4th 1109, 1119-1120; Oden v. Board of Administration (1994) 23
Cal. App. 4th 194, 198; Claypool v. Wilson (1992) 4 Cal. App. 4th 646, 653-655; City of
1
Unidentified section references hereinafter are to the Government Code.
2 99-303
Sacramento v. Public Employees Retirement System (1991) 229 Cal. App. 3d 1470, 1478-
1479; Valdes v. Cory (1983) 139 Cal. App. 3d 773, 780-783.) While PERS is part of the
State and Consumer Services Agency (§ 20002), it provides retirement benefits not only for
state employees but also for the employees of local public agencies that have contracted for
coverage (Quintana v. Board of Administration (1976) 54 Cal. App. 3d 1018, 1021; 71
Ops.Cal.Atty.Gen. 129, 129-130 (1988); 70 Ops.Cal.Atty.Gen. 189, 190-191 (1982)).
PERS is managed by the Board (§ 20120), which is comprised of 13 members
(§ 20090; 72 Ops.Cal.Atty.Gen. 58, 59 (1989)) serving four-year terms of office (§ 20095).
Section 20090 states:
“The Board of Administration of the Public Employees’ Retirement
System is continued in existence. It consists of:
“(a) One member of the State Personnel Board, selected by and serving
at the pleasure of the State Personnel Board.
“(b) The Director of the Department of Personnel Administration.
“(c) The Controller.
“(d) The State Treasurer.
“(e) An official of a life insurer and an elected official of a contracting
agency, appointed by the Governor.
“(f) One person representing the public, appointed jointly by the
Speaker of the Assembly and the Senate Committee on Rules.
“(g) Six members elected under the supervision of the board as follows:
“(1) Two members elected by the members of this system from the
membership thereof.
“(2) A member elected by the active state members of this system from
the state membership thereof.
“(3) A member elected by and from the active local members of this
system who are employees of a school district or a county superintendent of
schools.
3 99-303
“(4) A member elected by and from the active local members of this
system other than those who are employees of a school district or a county
superintendent of schools.
“(5) A member elected by and from the retired members of this
system.”
Returning to the language of section 19990, we find that the Board has
adopted an incompatible activities statement for “employees” under its “jurisdiction” as an
“appointing power.” The statute does not authorize the adoption of an incompatible
activities statement for the “appointing power,” in this case the Board. We reject the
suggestion that “employees” under the “jurisdiction” of the Board, as an “appointing
power,” would include the Board members themselves.
While Board members are not subject to an incompatible activities statement
which they adopt for their employees under the terms of section 19990, we note that Board
members are not without statutory limitations placed upon their official and private conduct.
For example, subdivision (a) of section 8920 states generally with respect to state officers,
including Board members:
“No Member of the Legislature, state elective or appointive officer, or
judge or justice shall, while serving as such, have any interest, financial or
otherwise, direct or indirect, or engage in any business or transaction or
professional activity, or incur any obligation of any nature, which is in
substantial conflict with the proper discharge of his duties in the public
interest and of his responsibilities as prescribed in the laws of this state.”
More specifically, section 20150 states with respect to members of the Board:
“A board member or employee of the board shall not, directly or
indirectly:
“(a) Have any interest in the making of any investment, or in the gains
or profits accruing therefrom.
“(b) For himself or herself or as an agent or partner of others, borrow
any funds or deposits of this system, nor use those funds or deposits in any
manner except to make current and necessary payments authorized by the
board.
4 99-303
“(c) Become an indorser, surety or obligor on investments by the
board.”
Section 20151 prescribes additional fiduciary standards for Board members:
“The board and its officers and employees shall discharge their duties
with respect to this system solely in the interest of the participants and
beneficiaries:
“(a) For the exclusive purpose of both of the following:
“(1) Providing benefits to members, retired members, and their
survivors and beneficiaries.
“(2) Defraying reasonable expenses of administering this system.
“(b) Minimizing the employers’ costs of providing benefits under this
part.
“(c) By investing with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity
and familiar with those matters would use in the conduct of an enterprise of
a like character and with like aims.”
Further, section 20153 provides in part:
“(a) During the process leading to an award of any contract by the
system, no member of the board or its staff shall knowingly communicate
concerning any matter relating to the contract or selection process with any
party financially interested in the contract or an officer or employee of that
party, unless the communication is (1) part of the process expressly described
in the request for proposal or other solicitation invitation, or (2) part of a
noticed board meeting, or (3) as provided in subdivision (c). Any applicant
or bidder who knowingly participates in a communication that is prohibited
by this subdivision shall be disqualified from the contract award.
“(b) During the evaluation of any prospective investment transaction,
no party who is financially interested in the transaction, or an officer or
employee of that party, may knowingly communicate with any board member
5 99-303
concerning any matter relating to the transaction or its evaluation, unless the
financially interested party discloses the content of the communication in a
writing addressed and submitted to the executive officer and the board prior
to the board’s action on the prospective transaction. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“(3) Consistent with its fiduciary duties, the board shall determine the
appropriate remedy for any knowing failure of a financially interested party
to comply with this subdivision including, but not limited to, outright rejection
of the prospective investment transaction, reduction in fee received, or any
other sanction.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
Other statutes applicable to Board members include section 1090, governing financial
interests in contracts made by public officers in their official capacities, and section 87100,
regulating financial interests in decisions made by public officers in their official capacities.
(See 78 Ops.Cal.Atty.Gen. 362, 368-374 (1995).) The Ethics in Government Act
(§§ 89500-89522) regulates the acceptance of honoraria and gifts by Board members.
(§ 20094.)
It is concluded that an incompatible activities statement adopted by the Board
under the terms of section 19990 does not apply to the members of the Board itself.2
2. Declaration of Bankruptcy
The second inquiry is whether a declaration of bankruptcy is a basis for
disqualifying a person from serving on the Board. We conclude that it is not.
The statutes providing for disqualification for and vacancy of public office do
not include a declaration of bankruptcy as a cause for such events. (§§ 1020-1028, 1770.)
The other statutes discussed above, governing the conduct of Board members, neither
prohibit a determination of personal bankruptcy nor prescribe disqualification or forfeiture
of office as a consequence thereof. (See §§ 8920, 20150-20153, 89500.)
2
We reached the same conclusion with respect to the Board’s members under former section 19251,
the predecessor statute to section 19990. (Cal. Atty. Gen., Indexed Letter, No. IL 68-122 (May 15, 1968);
see 65 Ops.Cal.Atty.Gen. 316, 317, fn.1 (1982); 53 Ops.Cal.Atty.Gen. 163, 170-171 (1970).)
6 99-303
The qualifications of Board members are set by the Legislature. (§ 20100.)
We find no statutory or other authority upon which a disqualification based on a declaration
of bankruptcy may be predicated.
It is concluded that a person who has declared bankruptcy may serve on the
3
Board.
*****
3
In view of the conclusion reached, it is unnecessary to consider whether a state statute providing
for disqualification from public office due to a declaration of bankruptcy, a matter governed by the United
States Constitution and federal laws, would withstand federal constitutional scrutiny. (Cf. Grimes v.
Hoschler (1974) 12 Cal. 3d 305.)
7 99-303 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128511/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 20, 2007
The Honorable Marsha Monroe Opinion No. GA-0569
Terrell County Attorney
Post Office Box 745 Re: Whether certain county officers and employees
Sanderson, Texas 79848 may hold additional county positions
(RQ-0580-GA)
Dear Ms. Monroe:
You ask whether certain county officers and employees may hold additional county positions.
You first ask whether ajustice ofthe peace may simultaneously serve as a county emergency medical
services employee. 1 Both the Texas Constitution and the common-law doctrine of incompatibility
restrict dual office holding. We examine each in tum.
Article XVI, section 40 of the Texas Constitution provides that "[n]o person shall hold or
exercise at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a).
Justices ofthe peace are expressly excepted from the operation ofthis constitutional provision. See
id. Thus, article XVI, section 40 does not bar ajustice of the peace from simultaneously serving as
a county emergency medical services employee.
Irrespective of the constitutional prohibition, the common-law doctrine of incompatibility
may also serve as an impediment to the simultaneous holding of two positions. That doctrine has
three aspects: (1) self-appointment; (2) self-employment; and (3) conflicting loyalties. See Tex.
Att'y Gen. Ope No. GA-0536 (2007) at 3. Neither self-appointment nor self-employment is
applicable to the situation you pose. It is the commissioners court, not the justice of the peace, that
governs the appointment or employment ofan emergency medical services employee. See Tex. Att'y
Gen. LO-94-046, at 2 (explaining that in a county with no emergency services district, "the county
commissioners court itself governs the county emergency medical or ambulance service"). Neither
does an emergency medical services employee appoint or employ a justice ofthe peace, which is an
elected office. See TEX. CONST. art. V, § 18 Gustice of the peace is an elected official).
lLetter from Honorable Marsha Monroe, Terrell County Attorney, to Honorable Greg Abbott, Attorney General
of Texas, at 1 (Apr. 2, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Marsha Monroe - Page 2 (GA-0569)
The third aspect of incompatibility-eonflicting loyalties-occurs only when each position
is an "office." See Tex. Att'y Gen. Opt No. GA-0536 (2007) at 3. A person is an "officer" if "any
sovereign function of government is conferred upon the individual to be exercised by him for the
benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v.
Standley, 280 S.W.2d 578, 583 (Tex. 1955). Under the standard of Aldine, it is clear that a county
emergency medical services employee, ultimately subject to the direction and control of the
commissioners court, does not hold an office. Thus, conflicting loyalties incompatibility does not
bar a justice of the peace from simultaneously serving as a county emergency medical services
employee.
Even though no legal incompatibility exists, conflict may still arise between the duties ofthe
two positions. For example, in a county without a medical examiner's office, a justice ofthe peace
may have the duty to perform an inquest into the death of a person. See TEX. CODE CRIM. PROC.
ANN. arts. 49.02, .04 (Vernon 2006). Inquests may involve review of actions taken by emergency
medical staff. See, e.g., Tex. Att'y Gen. LO-97-033, at 1 (relating to ajustice of the peace seeking
access to ambulance "run sheets" in connection with a death investigation). Additionally, there may
be other circumstances in which the jurisdiction of the justice court brings the justice of the peace
in contact with emergency medical personnel and the emergency medical services division. To that
end, we note that the Code of Judicial Conduct and other ethical considerations may be implicated
by the dual service at issue here. See, e.g., TEX. CODE JUD. CONDUCT, Canon 4A(1 )-(2), reprinted
in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005) (providing that extra-judicial,
activities should not: "(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
or (2) interfere with the proper performance ofjudicial duties"); ide Canon 4D( 1) ("A judge shall
refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality,
interfere with the proper performance of the judicial duties, or involve the judge in frequent
transactions with ... persons likely to come before the court "). The justice of the peace of
whom you inquire may wish to consult with the Texas Commission on Judicial Conduct regarding
this dual service. See TEX. CONST. art. V, § l-a(2), 6(A), (8) (providing that the Commission is
responsible, in the first instance, for applying the judicial canons to specific conduct by judges).
Your second question is whether ajustice ofthe peace holds a full-time position and is thus
eligible for county employee benefits. See Request Letter, supra note 1, at 1. You explain that the
Terrell County Handbook defines "full-time employees" as those employees regularly employed
thirty or more hours per week and that "the Justice of the Peace position has not [historically]
required that the JP work 30 hours per week." Id. at 1-2.
The County Handbook's provisions regarding the benefits bestowed upon full-time
employees are not applicable to ajustice of the peace. A justice of the peace is not an employee of
the county. Rather, the position ofjustice of the peace is an elected office established by the Texas
Constitution. See TEX. CONST. art. V, § 18.
The Honorable Marsha Monroe - Page 3 (GA-0569)
The Texas Constitution requires that justices ofthe peace be compensated on a salary basis.
See ide art. XVI, § 61(b).2 The commissioners court has authority to set the salary and other
compensationforjusticesofthepeace. See TEX. Loc. GOV'TCODEANN. §§ 152.011 (Vernon 1999)
(commissioners court has authority to "set the amount of the compensation, office and travel
expenses, and all other allowances for county and precinct officers ... paid wholly from county
funds"), 152.013(a) ("Each year the commissioners court shall set the salary, expenses, and other
allowances ofelected county or precinct officers."); Tex. Att'y Gen. Ope No. GA-0193 (2004) at 3. 3
We have recognized that the commissioners court, pursuant to section 152.011 of the Local
Government Code, may also confer benefits such as vacation, sick leave, and holidays on county
officers, as part of their compensation. See Tex. Att'y Gen. Ope Nos. GA-0322 (2005) at 3,
GA-0303 (2005) at 2. In carrying out its authority to establish the salary and compensation of a
justice ofthe peace, a commissioners court may not, however, prescribe the office hours ofjustices
ofthe peace as this would intrude upon the powers or duties of an independent county official. See
Tex. Att'y Gen. Ope Nos. GA-0322 (2005) at 3, GA-0303 (2005) at 2.
Your third question is whether one person may simultaneously serve in a contractual position
as director for county emergency medical services and as a full-time dispatcher for the sheriffs
office. See Request Letter, supra note 1, at 1-2. Under the Aldine standard, neither of these
positions constitutes an "office," and thus an individual holding both would not run afoul of either
article XVI, section 40 ofthe Texas Constitution or the conflicting loyalties aspect of common-law
incompatibility. See Tex. Att'y Gen. LO-94-046, at 3 (an EMS administrator is not a public officer);
cf Tex. Att'y Gen. Ope No. GA-0402 (2006) at 1 (a deputy sheriff is not an officer). Neither does
one position appoint or employ the other. Thus, there is no legal bar to a person's holding both of
these positions.
As a practical matter, the commissioners court, as supervisor of the emergency medical
services director, and the sheriff, as supervisor of his dispatcher, must each determine whether the
duties of one position make it impossible for the individual to adequately perform the other. See
Abbott v. Pollock, 946 S.W.2d 513, 516-17 (Tex. App.-Austin 1997, writ denied) (holding that a
sheriff has sole authority over employment and termination decisions concerning sheriff s office
personnel); Tex. Att'y Gen. LO-94-046, at 2 (explaining that in a county with no emergency services
district, "the county commissioners court itselfgoverns the county emergency medical or ambulance
service, pursuant to the common law, section 774.003(a) of the Health and Safety Code, or some
statute other than chapter 776 of the Health and Safety Code of which we are unaware").
2 Justices of the peace also have express statutory authority to retain fees from third parties for performing
services outside those required of the office by law, such as marriage ceremonies. See TEX. Lac. GOV'T CODE ANN. §
154.005(a) (Vernon 1999).
3A county commissioners court has a duty to set a reasonable salary for a duly elected justice ofthe peace. See
Vondy v. Comm'rs Court o/Uvalde County, 620 S.W.2d 104, 108-09 (Tex. 1981).
The Honorable Marsha Monroe - Page 4 (GA-0569)
SUMMARY
A justice of the peace is not barred by either article XVI,
section 40 of the Texas Constitution or the common-law doctrine of
incompatibility from simultaneously serving as a county emergency
medical service employee. The justice of the peace may, however,
wish to consult with the State Commission on Judicial Conduct to
assess whether the Code of Judicial Conduct bars such dual service.
Ajustice ofthe peace is an elected official-not an employee
of the county. The salary and other compensation, such as benefits,
for justices of the peace are set by the commissioners court.
A full-time dispatcher for a county sheriffs office is not
barred by either article XVI, section 40 of the Texas Constitution or
the common-law doctrine of incompatibility from simultaneously
serving in a contractual position as director of county emergency
medical services. Whether one person can, as a practical matter, carry
out both functions must be determined by the sheriff and the
commissioners court as the respective supervisors of the two
positions.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128515/ | TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
BILL LOCKYER
Attorney General
:
OPINION : No. 99-104
:
of : April 15, 1999
:
BILL LOCKYER :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
GUY B. MEYERS has requested this office to grant leave to sue in quo
warranto upon the following:
ISSUES OF FACT OR LAW
Is Lorraine Rollins unlawfully occupying the office of director of the
Calaveras County Water District for the Fifth District?
CONCLUSION
Whether Lorraine Rollins is unlawfully occupying the office of director of the
Calaveras County Water District for the Fifth District presents substantial issues of fact and
law; it is in the public interest to grant leave to sue so that a judicial resolution of the issues
presented may be obtained.
1 99-104
PARTIES
GUY B. MEYERS (“relator”) seeks a judicial determination of the validity of
the actions taken by the directors of the Calaveras County Water District (“CCWD”) on
December 16, 1998, declaring his office as director for the Fifth District to be vacant and
replacing him on February 10, 1999, by appointing Lorraine Rollins (“defendant”).
MATERIAL FACTS
On November 7, 1995, relator was elected to a four-year term as director of
the CCWD for the Fifth District. On December 16, 1998, the directors of the CCWD voted
to declare the office of director for the Fifth District to be vacant upon the ground that
relator was no longer a resident of or domiciled in the Fifth District. On February 10, 1999,
the directors appointed defendant to fill the declared vacancy in the office of the Fifth
District.
Relator asserts that he was a resident of the Fifth District as of November 7,
1995, that he continues to be a resident of the Fifth District, and that it is his intent to remain
a resident of the Fifth District. He declares that his driver’s license bears a post office box
mailing address in Valley Springs, Calaveras County, and that his vehicle registration shows
the same mailing address. He further declares that his concealed weapons permit gives his
address at a location on St. Andrews Street in Valley Springs and that he has received utility
bills for that address. He further states that he is registered to vote in the Fifth District.
Relator declares that he owns a business and “several pieces of real property in the Fifth
District.”
The Directors of the CCWD have presented evidence supporting their claim
that relator’s residence is located in the City of Lodi, San Joaquin County, including both
a 1997 grant deed for the property and a trust deed executed in 1998 to secure a loan listing
relator’s residence as the Lodi property. Also presented are reports of witness interviews
concerning relator’s presence at the Lodi property and his absence from his claimed
residence in Calaveras County.
2 99-104
ANALYSIS
The first issue to be resolved is whether relator’s continued residence within
the Fifth District is required during his term of office as a member of the CCWD’s
governing board. Under the County Water District Law (Wat. Code, §§ 30000-33901), a
director for the Fifth District of the CCWD must be a “voter” within the Fifth District at the
time of his or her election to the board (Wat. Code, § 30735). Accordingly, he or she must
be a “resident” of the Fifth District (see Elec. Code, §§ 321, 359), which means that within
the Fifth District must be that single “place in which his or her habitation is fixed, wherein
the person has the intention of remaining, and to which, whenever he or she is absent, the
person has the intention of returning” (Elec. Code, § 349, subd. (b); see 79
Ops.Cal.Atty.Gen. 243 (1996)).
We have previously determined that in the absence of any statutory expression
to the contrary, a residence requirement for election remains as a condition to the continued
right to hold office. (75 Ops.Cal.Atty.Gen. 26, 28 (1992).) Here, Water Code section 30508
provides a slight variation upon this requirement:
“If a director’s place of residence, as defined in Section 244 of the
Government Code, is moved outside district boundaries or outside the
boundaries of that director’s division where elected from a division, and if
within 180 days of the move or of the effective date of this section the director
fails to reestablish a place of residence within the district or within the
director’s division, it shall be presumed that a permanent change of residence
has occurred and that a vacancy exists on the board of directors pursuant to
Section 1770 of the Government Code.”
Government Code section 244 in turn provides:
“In determining the place of residence the following rules shall be
observed:
“(a) It is the place where one remains when not called elsewhere for
labor or other special or temporary purpose, and to which he or she returns in
seasons of repose.
“(b) There can only be one residence.
“(c) A residence cannot be lost until another is gained.
3 99-104
“(d) The residence of the parent with whom an unmarried minor child
maintains his or her place of abode is the residence of such unmarried minor
child .
“(e) The residence of an unmarried minor who has a parent living
cannot be changed by his or her own act.
“(f) The residence can be changed only by the union of act and intent.
“(g) A married person shall have the right to retain his or her legal
residence in the State of California notwithstanding the legal residence or
domicile of his or her spouse.”
Government Code section 1770 additionally states in part:
“ An office becomes vacant on the happening of any of the following
events before the expiration of the term:
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“(e) His or her ceasing to be an inhabitant of the state, or if the office
be local and one for which local residence is required by law, of the district,
county, or city for which the officer was chosen or appointed, or within which
the duties of his or her office are required to be discharged. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
In 81 Ops.Cal.Atty.Gen. 94, 97 (1998), we recently analyzed the meaning of
“residence” as that term is used in Government Code section 1770:
“. . . ‘Residence’ for purposes of Government Code section 1770
means ‘domicile,’ a place of physical presence coupled with an intention to
make that place one’s permanent home; a person may only have one domicile
at any given time. (See Walters v. Weed (1988) 45 Cal. 3d 1, 7; Smith v. Smith
(1955) 45 Cal. 2d 235, 239; DeMiglio v. Mashore (1992) 4 Cal. App. 4th 1260,
1268; Fenton v. Board of Directors (1984) 156 Cal. App. 3d 1107, 1113; 79
Ops.Cal.Atty.Gen. 21, 25-26 (1996); 73 Ops.Cal.Atty.Gen. 197, 208-209
(1990); 72 Ops.Cal.Atty.Gen. 8, 11 (1989).)”
4 99-104
It is readily apparent that substantial questions of fact and law exist as to whether relator’s
place of residence complies with the requirements of Water Code section 30508. If it does
comply, he has the right to regain his office through quo warranto proceedings.
In 79 Ops.Cal.Atty.Gen. 21 (1996), we considered whether a quo warranto
action should be filed where the mayor of the City of Parlier had been removed from office
by the city council. The council declared the mayor’s office vacant on the ground that he
no longer resided in the city and appointed a replacement. We granted the mayor’s
application to sue in quo warranto to determine whether he had been unlawfully replaced.
We stated:
“Applications for leave to sue in quo warranto normally involve a
direct challenge to the right of a person to hold public office, usually on the
ground that he or she has failed to meet the required qualifications for the
particular office, such as a residency requirement. (73 Ops.Cal.Atty.Gen.,
supra, 200.) Here, the challenge is somewhat different in that it does not
concern the qualifications of defendant, but rather those of the relator. Was
relator subject to an ongoing residency requirement in holding the office of
Mayor of Parlier, and if so, did he fail to maintain his status as a legal resident
of the city?
“In 73 Ops.Cal.Atty.Gen. 197, supra, we determined that a quo
warranto action was the proper remedy under circumstances parallel to those
presented here. There a school personnel commissioner was removed from
office by a school board for failing to maintain his residence within the school
district. We granted leave to sue, since the current commissioner’s title to the
office was dependent upon the legitimacy of the board’s prior determination
that the office had become vacant. Our analysis relied primarily on the case of
Klose v. Superior Court (1950) 96 Cal. App. 2d 913. In Klose, the court stated:
“ ‘. . . where [an] appointing power considers a vacancy in office to
exist, it may appoint a successor, without proceedings to declare the vacancy
to exist, and that when it does so appoint[,] the official succeeded may by quo
warranto question whether there was any vacancy.’ (Id., at p. 917.)” (Id., at
pp. 22-23.)
5 99-104
PUBLIC INTEREST
As a general rule, we have viewed the existence of a substantial question of
fact or law as presenting a sufficient “public purpose” to warrant the granting of leave to
sue. Accordingly, leave will be denied only in the presence of other overriding
consideration. (81 Ops.Cal.Atty.Gen. 94, 98 (1998).) We find no countervailing
considerations herein. Whether relator’s residence within the Fifth District, both past and
present, satisfies the requirements of Water Code section 30508 is a matter for judicial
resolution.
Accordingly, the application for leave to sue in quo warranto is GRANTED.
*****
6 99-104 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289001/ | CLD-229 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1576
___________
CHRISTOPHER KENYATTA MOORE,
Appellant
v.
REGINA M. COYNE, ESQUIRE; DANIEL PAUL ALVA, ESQUIRE;
JEREMY EVAN ALVA, ESQUIRE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-18-cv-00299)
District Judge: Honorable Jeffrey L. Schmehl
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 7, 2018
Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges
(Opinion filed: June 27, 2018)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Christopher Moore appeals from the District Court’s dismissal of his complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). For the following reasons, we will summarily
affirm. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
I.
In January 2018, Moore filed a pro se civil rights complaint pursuant to 42 U.S.C.
§ 1983 in the United States District Court for the Eastern District of Pennsylvania.
Moore alleged that three private attorneys “conspired” to deprive him of the opportunity
to prove his innocence and raise ineffective assistance of counsel claims in a post-
conviction petition. Specifically, Moore claimed that his trial attorney, Defendant Coyne,
gave Defendant Jeremy Alva his criminal case file (including trial transcripts) based on
Jeremy Alva’s false statement that he was representing Moore on his post-conviction
petition. Additionally, Moore alleged that Jeremy Alva is the son of Defendant Daniel
Alva, who was representing Moore’s “adverse” co-defendant and orchestrated the plan to
take Moore’s file. Moore alleged that, as a result of the conspiracy, he was forced to file
an inadequate post-conviction petition, which the state court dismissed as meritless. The
District Court dismissed Moore’s complaint sua sponte for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and denied him leave to amend. The District
Court explained that Moore could not state a constitutional claim against the defendants
because they are not state actors for purposes of § 1983. Moore timely appealed.
2
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District
Court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) is plenary. See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). When considering whether to dismiss a
complaint for failure to state a claim under § 1915(e)(2)(B)(ii), the District Court uses the
same standard it employs under Fed. R. Civ. P. 12(b)(6). When a complaint does not
allege sufficient facts to state a claim for relief that is “plausible on its face[,]” dismissal
is appropriate. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]e must accept as true
the factual allegations in the complaint and all reasonable inferences that can be drawn
therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
We agree with the District Court that Moore’s § 1983 complaint failed to state a
claim for relief. A § 1983 action may be maintained only against a defendant who acts
under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); see also Kach v.
Hose, 589 F.3d 626, 646 (3d Cir. 2009) (explaining that to state a claim under § 1983, a
plaintiff “must establish that []he was deprived of a federal constitutional or statutory
right by a state actor”). Private actors, such as the non-governmental defendants named
here, can be said to act under color of state law only if their conduct is fairly attributable
to the state. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982). We have held that
private “[a]ttorneys performing their traditional functions will not be considered state
actors solely on the basis of their position as officers of the court.” Angelico v. Lehigh
Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). The defendants in this case, private
3
attorneys, do not otherwise qualify as state actors. See Polk Cty. v. Dodson, 454 U.S.
312, 325 (1981); Angelico, 184 F.3d at 277. None of the conduct alleged in the
complaint can be fairly attributed to the state for purposes of § 1983. Thus, the District
Court was correct in its conclusion that Moore’s complaint failed to state a claim for
relief.
III.
For the foregoing reasons, we will summarily affirm the District Court’s
judgment.1
1
The District Court did not err in its decision to deny Moore leave to amend his
complaint. See Grayson v. Mayview State Hospital, 293 F.3d 103, 112-13 (3d Cir.
2002).
4 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289065/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0321n.06
Case No. 17-1961
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 27, 2018
DEBORAH S. HUNT, Clerk
THOMAS RUSSELL, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
CSK AUTO CORPORATION, N/K/A ) MICHIGAN
O’REILLY AUTOMOTIVE, INC., )
)
Defendant-Appellee. )
BEFORE: MOORE, CLAY, and KETHLEDGE, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Thomas Russell (“Russell”) appeals from the judgment
entered by the district court dismissing with prejudice Russell’s lawsuit alleging that Defendant
CSK Auto Corporation, n/k/a O’Reilly Automotive, Inc. (“O’Reilly”) violated the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and breached their contract. For the
reasons set forth below, we AFFIRM the decision of the district court.
BACKGROUND
I. Factual History
Russell was an employee at O’Reilly for 25 years from June 14, 1988 to September 9,
2013, and a store manager for the last sixteen of those years. When Russell began his career, the
company was called Murray’s Discount Auto Stores. It later became CSK Auto (“CSK”), and
Case No. 17-1961
Russell v. CSK Auto
then O’Reilly in 2008, after O’Reilly purchased CSK. When O’Reilly acquired CSK, the pay
structure changed. CSK maintained a salary-based compensation system, whereas O’Reilly
maintained a commission-based system. Under the commission-based system, managers would
receive a lower base salary plus a commission tied to their stores’ sales. However, to ease the
transition between the two systems, O’Reilly put the managers on an “assurance pay” plan. With
assurance pay, managers were given the same base pay figure, and then an assurance pay figure,
which was designed to keep their income close to what it had been under the salary system. The
plan was temporary. Russell was first given assurance pay in April 2009. His base pay was $2,225
and his assurance pay was $2,575.
On August 27, 2010, Russell sprained his ankle and was instructed by his doctors not to go
to work. Later, Russell took FMLA leave from September 28, 2010 until December 21, 2010. On
September 24, 2010, before he went on FMLA leave, Russell was removed from assurance pay
and, while on leave, was transferred from the Waterford store to the 24 and Hayes store, a slower
store within the district.1 Russell submitted a resignation letter on December 6, 2010. After
receiving the letter, Dan Gdowski (“Gdowski”), Russell’s regional manager, set up a meeting with
Russell to discuss the issues contained in his resignation letter. After the meeting, Russell was
placed back on assurance pay and transferred to the Lapeer store, where he remained until 2013.
Russell alleges that at that meeting, Gdowski made a promise that as long as the sales at Russell’s
store continued to grow, he would stay on the assurance plan.
In December 2012, Russell once again took FMLA leave after undergoing umbilical hernia
surgery. He was on leave from December 14, 2012 to January 14, 2013. In January 2013, Russell
1
Russell admitted that before his assurance pay was taken away, he asked to be transferred from the
Waterford store.
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was removed from assurance pay. On February 14, 2013, Russell was notified that he had been
removed from assurance pay. Russell set up another meeting with Gdowski to discuss his removal.
The reason provided was time—that it “was a matter of just time.” (R. 70, Trial Tr., PageID #
1257.) After several months, in September 2013, Russell was informed that his pay would not be
reinstated and he would not be transferred to a higher-volume store. Russell submitted his
resignation letter and his last day was September 9, 2013.
II. Procedural History
On November 3, 2014, Russell filed a complaint against O’Reilly alleging: (1) intentional
and willful violation of the FMLA; (2) intentional infliction of emotional distress; and, (3) breach
of contract. First, Russell alleged that O’Reilly intentionally and willfully violated the FMLA by
retaliating against him by “removing him from the assurance plan after being on FMLA,” by
interfering with his FMLA rights, and by constructively discharging him. (R. 1, Complaint,
PageID # 4.) Second, Russell alleged that O’Reilly’s conduct was “extreme, outrageous, and of
such character as not to be tolerated by a civilized society” and “resulted in severe and serious
emotional distress.” (Id. at # 5.) Finally, Russell alleged that he and O’Reilly entered into an oral
contract in which O’Reilly agreed to pay Russell “assurance pay” provided his store sales
increased yearly and until “his commissions were equal to his assurance pay.” (Id. at # 6.) Russell
alleged that his sales did increase, and O’Reilly breached the contract by failing to keep him on
assurance pay.
On October 13, 2015, Russell filed a motion for partial summary judgment on the issue of
constructive discharge. On October 13, 2015, O’Reilly filed a motion for summary judgment on
all of Russell’s claims. On September 30, 2016, the district court denied Russell’s motion for
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partial summary judgment, denied O’Reilly’s motion for summary judgment, and dismissed with
prejudice Russell’s claim for intentional infliction of emotional distress.2
The district court held a bench trial on June 5, 2017. On July 26, 2017, the district court
issued findings of fact and conclusions of law. On July 26, 2017, the district court entered
judgment against Russell, dismissing his lawsuit with prejudice. The court found that O’Reilly
“did not interfere or retaliate against Plaintiff in violation of the FMLA when Plaintiff was
removed from the Assurance Pay Plan,” did not constructively discharge Russell, and did not
breach its contract “because no contract existed between the parties guaranteeing that Plaintiff
could remain indefinitely on the plan.” (R. 65, Opinion, PageID # 1171.)
On August 16, 2017, Russell timely filed his notice of appeal.
DISCUSSION
I. FMLA Retaliation
Standard of Review
“On an appeal from a judgment entered after a bench trial, we review the district court’s
findings of fact for clear error and its conclusions of law de novo.” Lindstrom v. A-C Prod. Liab.
Tr., 424 F.3d 488, 492 (6th Cir. 2005) (citing Pressman v. Franklin Nat’l Bank, 384 F.3d 182, 185
(6th Cir. 2004)). “When the factual findings involve credibility determinations, we afford great
deference to the district court’s factual findings.” Id. (citing Schroyer v. Frankel, 197 F.3d 1170,
1173 (6th Cir. 1999)). “Under the clear-error standard, we abide by the court’s findings of fact
unless the record leaves us with the definite and firm conviction that a mistake has been
committed.” Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 625 (6th Cir. 2016)
2
Russell agreed to dismiss the intentional infliction of emotional distress claim.
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(alterations and internal quotation marks omitted) (quoting United States v. Yancy, 725 F.3d 596,
598 (6th Cir. 2013)).
Analysis
“The FMLA entitles qualifying employees up to 12 work weeks of leave under specified
circumstances, including if they are suffering from a serious health condition.” Tennial v. United
Parcel Serv., Inc., 840 F.3d 292, 307 (6th Cir. 2016) (citing 29 U.S.C. § 2612(a)(1)(D)). An
employer is prohibited from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the
attempt to exercise, any right provided” under the FMLA. 29 U.S.C. § 2615(a)(1). An employer
is also prohibited from “discharg[ing] or in any other manner discriminat[ing] against any
individual” for taking FMLA leave. Id. § 2615(a)(2). An employer who violates the FMLA is
liable to the employee for damages. Hunter v. Valley View Local Sch., 579 F.3d 688, 691 (6th Cir.
2009) (citing 29 U.S.C. § 2617(a)(1)).
This Court has recognized “two discrete theories of recovery under the FMLA: (1) the so-
called ‘interference’ or ‘entitlement’ theory arising from § 2615(a)(1), and (2) the ‘retaliation’ or
‘discrimination’ theory arising from § 2615(a)(2).” Seeger v. Cincinnati Bell Tel. Co., LLC,
681 F.3d 274, 282 (6th Cir. 2012) (citing Hunter, 579 F.3d at 691; Arban v. West Publ’g Corp.,
345 F.3d 390, 400–01 (6th Cir. 2003)). A plaintiff may proceed under both theories, but the proof
required for each is different. Tennial, 840 F.3d at 307–08. “The interference theory has its roots
in the FMLA’s creation of substantive rights, and ‘if an employer interferes with the FMLA-
created right to medical leave or to reinstatement following the leave, a violation has occurred,’
regardless of the intent of the employer.” Seeger, 681 F.3d at 282 (alteration omitted) (quoting
Arban, 345 F.3d at 401). By contrast, the “central issue raised by the retaliation theory . . . is
‘whether the employer took the adverse action because of a prohibited reason or for a legitimate
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nondiscriminatory reason.’” Id. (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir.
2006)). In other words, in interference claims “employers burden or outright deny substantive
statutory rights to which their employees are entitled,” whereas in retaliation claims “employers
initiate adverse employment actions against employees for exercising their FMLA right to take
leave.” Romans v. Michigan Dep’t of Human Servs., 668 F.3d 826, 840 (6th Cir. 2012) (citation
omitted). An employer’s motive is relevant in a retaliation claim “because retaliation claims
impose liability on employers that act against employees specifically because those employees
invoked their FMLA rights.” Seeger, 681 F.3d at 282 (citing Edgar, 443 F.3d at 508).
Russell asserts that his FMLA rights were violated under both theories. We first address
Russell’s retaliation claim. An employer may not discriminate or retaliate against an employee
for taking FMLA leave. 29 U.S.C. § 2615(a)(2). “In particular, an employer is prohibited from
‘us[ing] the taking of FMLA leave as a negative factor in employment actions.’” Hunter, 579 F.3d
at 690–91 (citing 29 C.F.R. § 825.220(c); Arban, 345 F.3d at 403). In order to establish a claim
for FMLA retaliation, a plaintiff must demonstrate that: “(1) he engaged in an activity protected
by the Act, (2) this exercise of his protected rights was known to the defendant, (3) the defendant
thereafter took an employment action adverse to the plaintiff, and (4) there was a causal connection
between the protected activity and the adverse employment action.” Tennial, 840 F.3d at 308
(citing Arban, 345 F.3d at 404).
The parties do not dispute the first three elements: (1) Russell was engaged in a statutorily
protected activity when he went on FMLA leave in December 2012; (2) O’Reilly knew Russell
was on FMLA leave; and, (3) Russell suffered an adverse employment action when he was
removed from assurance pay. Russell, then, needed to demonstrate a causal connection between
the FMLA leave and the adverse employment action. At trial, the question for the district court
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was whether O’Reilly’s stated reason for removing him from assurance pay was pretextual and
whether the true reason for his removal was his medical leave. Killian v. Yorozu Auto. Tennessee,
Inc., 454 F.3d 549, 556 (6th Cir. 2006). The district court found against Russell, concluding that
O’Reilly removed Russell from assurance pay “because his performance as store manager did not
produce profits sufficient enough to cover [Russell’s] salary under the plan,” (R. 65, Findings,
PageID # 1175) and that this reason was not pretext for discrimination. We do not think the district
court’s conclusion on the ultimate question of retaliation was clearly erroneous.
Turning to the evidence presented at trial, O’Reilly offered a legitimate, non-
discriminatory reason for Russell’s removal from assurance pay. Gdowski testified that the reason
was that the sales at Russell’s store did not justify his overall compensation. Gdowski testified
that the assurance pay system was a temporary system instituted to ease the transition from a
salary-based system to a commission-based system after O’Reilly took over from CSK. He
testified that the O’Reilly model was designed to tie the managers’ compensation to the
performance of the stores. The company wanted the store managers to “be paid off the store.” (R.
70, Trial Tr., PageID # 1371.)
O’Reilly was concerned about the number of managers on assurance pay. For example, on
May 2, 2012, a regional manager sent an email reminding the other regional managers that “[they]
need to consistently review the assurances of [their] store managers to make sure they are in line
with store sales, store profitability.” (Id. at # 1357.) This email was forwarded to Gdowski by
Scott Leonhard, the divisional vice president. Apparently the regional manager was alarmed, or
“almost has had a heart attack,” to learn about the rate of assurance pay. (Id. at # 1390.) Gdowski
knew that this “was something [he] needed to look into.” (Id. at # 1392.) He characterized the
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email to the managers as saying “hey, guys, we have to be sure our AP plans are in line with our
stores.” (Id.)
Gdowski testified that he would periodically receive a list from corporate containing the
names of managers whose assurance pay had expired or would soon expire. When Gdowski
received that list, he needed to review those managers to determine whether their assurance pay
should be extended or whether it should be left to expire. Gdowski testified that he received a list
from corporate with Russell’s name on it. He testified that the managers he included in his January
2, 2013 email were the managers that corporate told him to review. He testified that he would
have received this list three weeks to 30 days “ahead of time.” (Id. at # 1356, 1359.) This list
would have contained information about the managers, including their pay information (both base
and assurance), when they started on assurance pay, and when they last had their assurance pay
reviewed.
As part of his review of the expiring assurances, Gdowski testified that he needed to
evaluate the performance of the store managers and make sure “the payroll dollars fit and match
the volume of the store.” (Id. at # 1362, 1373.) He testified that Russell was removed because he
was not good enough for his assurance pay, because he was not performing well enough to justify
that high of a salary. Russell had one of the highest base pays, and also one of the highest
assurances of the store managers. That was because his salary at CSK had been higher because he
had been with the company for so long. Because Russell’s assurance pay was so high, his breakout
number (the number of sales needed for Russell’s commission to equal his assurance pay number)
was also a lot higher than other store managers’ breakout number. Gdowski testified that Russell
had been on assurance pay for 46 months and was “one of the longer tenured managers on
assurance.” (Id. at # 1373.) Gdowski testified that he was the second from last removed from the
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CSK conversion. He testified that the timing was right to remove Russell because they were going
into a new year and with “volumes picking up in the months of March, April, May, that it was time
. . . that Mr. Russell came off assurance.” (Id. at 1373–74) He testified that the timing would
allow Russell to “get as close to that assurance breakout number as [he could].” (Id. at # 1374.)
Gdowski also testified that the store had the potential to support Russell’s pay at the level he had
been receiving under the salary-based system and the opportunity was there for Russell. 3 Russell
testified that at the meeting with Gdowski following his removal, the reason Gdowski provided
for the action was the length of time that he had been on assurance pay.4
As part of the assurance pay review, Jeff Young (“Young”), Russell’s district manager,
would make a recommendation to Gdowski about whether someone should remain on assurance
pay. Young testified that he recommended that Russell remain on assurance pay because he would
take a “hit” if he came off assurance at that point, and because he was performing well and “hitting
his numbers or getting close to his numbers.” (Id. at # 1331–32, 1336.) Gdowski testified that
Young did not protest Gdowski’s decision to remove Russell from assurance pay. He testified that
Young “agreed that it was time to take [Russell] of[f] assurance.” (Id. at # 1382.) Either way,
Gdowski was the ultimate decision maker and he testified that he made the decision for the reasons
explained above.
3
On appeal, O’Reilly relies heavily on an argument that Russell received a two-year opportunity at the Lapeer
store. The ending of that two-year period would have coincided with the decision in early January to remove Russell
from assurance pay. For instance, Gdowski said “And that was discussed with him that, okay, we are going to give
you an opportunity after two years based on what he was making and based on his desire to be close to home and not
willing to move . . . .” (Id. at #1366–67, 1390.) However, we are skeptical of this reason because it is loosely
mentioned at trial only twice, is not a reason relied on by O’Reilly before the district court, and is not mentioned by
the district court. If there had actually been a two-year opportunity, we would have expected this to be mentioned
much more frequently at trial by O’Reilly and by the district court. Consequently, we are hesitant to rely on this
reasoning, as O’Reilly suggests.
4
This undermines Russell’s suggestion on appeal that O’Reilly’s reasoning was cooked up in anticipation of
this litigation.
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Gdowski testified that he removed many store managers from the plan. Young testified
that he supervised eleven store managers during the period of time in which he supervised Russell,
and seven or eight of them were taken off assurance pay. Additionally, when Russell was removed
from assurance pay, one other person was removed at the same time, and that person had been on
assurance pay beginning around the same time as Russell in 2009. Only one other person on the
list had been on assurance pay longer than Russell, and everyone else had been on significantly
less time than that. Gdowski testified that “many” store managers had lost money when they were
initially taken off assurance pay, and that other store managers had lost a similar amount to what
Russell lost when he was taken off. (R. 70, Trial Tr., PageID # 1377, 1381.) For example, of 28
store managers removed, 19 initially lost compensation.
In light of this evidence, we do not believe that the district court clearly erred in finding
that Russell was removed “because his performance as store manager did not produce profits
sufficient enough to cover [Russell’s] salary under the plan.” (R. 65, Findings, PageID # 1175.)
However, in order to show that O’Reilly’s reason was actually pretextual, Russell points
to temporal proximity, retaliation after his first use of FMLA leave, Russell’s superior
performance, and “the fact that other employees with similar circumstances were left on assurance
pay and others were given raises after coming off assurance pay.” (Russell Rep. Br. at 15.). First,
the timing of Russell’s removal from assurance pay is highly suspicious. Russell began his FMLA
leave in December 2012 and returned from leave on January 14, 2013. An email on January 2,
2013 from Gdowski provided that Russell would be removed from assurance pay as of January
31, 2013. Russell was told by Young that he was removed from assurance pay on February 14,
2013. The next day, Russell received a check and the assurance pay had already been removed.
In sum, the decision to remove Russell from assurance pay was officially communicated to
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corporate while Russell was in the middle of his FMLA leave and Russell was officially removed
from assurance pay a few weeks after his return from FMLA leave.
Next, Russell points out that he was previously removed from assurance pay around the
time he left for FMLA leave. On August 27, 2010, Russell sprained his ankle and was instructed
not to return to work until September 13, 2010. Russell then went on FMLA leave from September
28, 2010 until December 21, 2010. Prior to taking leave, on September 24, 2010, Russell was
informed that he would be removed from assurance pay. Apparently the decision was also made
around that date. Russell argues, then, that he was only ever removed from assurance pay when
he took FMLA leave.5
Additionally, Russell highlights the fact that he was a good performer, one of the best in
his district. Russell scored well individually in relation to other managers and his store scored
well in relation to other stores. For instance, Russell significantly increased sales at the Lapeer
store and increased the net profits of the store 150.37% from 2011–2012. Russell notes that when
he arrived at the store it had a loss of $92,626, and in 2012, the store had a positive profit of
$ 26,953. Russell ranked first in his district from 2011–2013 in terms of audit scores. Moreover,
Young never discussed any performance issues with Russell and described his performance as
“very high,” as “one of [the] better managers in [his] district,” and “a go-to person.”
But Gdowski acknowledged Russell’s performance and never suggested that Russell was
performing poorly. Gdowski’s point was that even though Russell was performing well and was
improving overall sales at the Lapeer store, his sales were still insufficient to support the
5
By contrast, Gdowski testified that the 2010 assurance pay decision was based upon performance concerns.
He testified that Russell was not meeting sales expectations, was spending “excessive” amounts on overtime, and was
not consistently doing required sales calls. (Id. at # 1361.) The district court does not appear to have made findings
about why Russell was removed from assurance pay in 2010.
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compensation that he had been receiving. Gdowski testified that the relevant information was
whether the sales at the particular store would justify the manager’s salary. And Russell admits
that “it is true that his store sales were not covering his commissions.” (Russell Br. at 22.)
Gdowski testified that in making the decision he did not look beyond the individual store and
compare it with other stores. The district court could have, and did, credit Gdowski’s testimony
that “[d]espite the increase in internal net profit during [Russell’s] tenure at the store, the profits
were insufficient to compensate [Russell] at the salary he was receiving while on the Assurance
Pay Plan.” (R. 65, Findings, PageID # 1174, 1179–80.)
Russell also argues that O’Reilly’s reason was pretextual based on the fact that other
employees remained on assurance pay longer than Russell or received more favorable treatment
after coming off assurance pay by getting a raise. Russell cites one person who remained on
assurance pay longer than Russell and another person who received a raise. For instance, Yvonne
Cronin’s assurance pay was extended through till March 31, 2013, even though she had been on
assurance pay for 47 months. He argues that the only difference between the two is Cronin’s non-
use of FMLA leave. But Gdowski testified at trial that the two were not similarly situated. For
instance, he noted that Cronin was at a new, unestablished store and that it would be unfair to take
her off assurance pay before she had enough time to allow the sales to grow and build the store.
Russell also pointed to Eric Frederick who was put on and removed from assurance pay at the
same time as Russell. He notes that Frederick got a $50 raise to his base pay two months after he
was removed from assurance pay. However, even after Frederick’s raise, Russell still made $300
more in base pay than Frederick. And there is no information in the record about why Frederick
received the raise.
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We do not think that Russell has shown that these two other employees were similarly
situated. See Parks v. UPS Supply Chain Sols., Inc., 607 F. App’x 508, 515 (6th Cir. 2015) (“Parks
points to other employees who he alleges were not discharged although they were similarly
situated. Before the Court can make a comparison, Parks must demonstrate that the comparables
were similarly situated in all relevant respects and that they engaged in acts of comparable
seriousness.”). Additionally, Russell was only able to provide two examples, which is not
overwhelming when most other managers were removed long before 46 months and did not
receive raises. Furthermore, the district court explicitly looked to what it considered were other
“similarly situated managers,” who were removed after less time or a similar period of time, and
who also suffered a reduction in pay after they were removed. (R. 65, Findings, PageID # 1181.).
Russell also points to the policy of assurance pay to argue O’Reilly’s proffered reason is
pretextual. He argues that O’Reilly’s reason—that Russell was removed from assurance pay
because his assurance pay was higher than his commissions based on store sales—could not be a
reason because this was true for all managers and the reason the system was created in the first
place. He asserts that because this reason is not unique to Russell, it “simply becomes pretextual.”
(Russell Br. at 19.) But it was not a precondition of removal that the manager’s commissions be
above the assurance pay. As already explained, Gdowski testified that other managers were
removed from assurance pay before their commissions reached their assurance pay amount and
lost income when they were removed from assurance pay. Young also testified that store managers
had received a “hit” when they were removed, although he testified that none took as great of a hit
as Russell. (R. 70, Trial Tr., PageID # 1343.) Additionally, Gdowski testified that the assurance
pay system was guaranteed for only one year, which would bring Russell to about the end of 2010.
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Finally, Russell points to the fact that there is no documentation that Russell’s assurance
pay was set to expire and no email from Gdowski to Young discussing whether Russell should be
removed. O’Reilly admitted that there are no documents from the time of the removal that state
the reason for Russell’s removal. By contrast, Russell produced evidence of emails to Gdowski
indicating when managers’ assurance pay was set to expire and evidence of email chains
discussing the pros and cons of removing other managers from assurance pay. But Gdowski
testified that he had received that email from corporate and that Russell’s name was on the list.
He also testified that he discussed the removal with Young. And in the same document where
O’Reilly admits that they do not have certain documents, they also admit that those kinds of
records do not exist for all employees, even though they do for some. Additionally, all of the
emails offered by Russell are dated after Russell was removed, and one is from as late as August
25, 2014.
In all, the most powerful evidence that O’Reilly’s reason for removing Russell from
assurance pay was pretextual is the temporal proximity and the fact that he was previously removed
from assurance pay near the only other time he took FMLA leave. These facts are certainly
suspicious. However, we do not believe that two examples combined with temporal proximity is
enough to disrupt the district court’s conclusion in light of the other evidence in the record. We
do not believe that the district court clearly erred in finding that Russell was removed “because his
performance as store manager did not produce profits sufficient enough to cover [Russell’s] salary
under the plan,” (R. 65, Findings, PageID # 1175) or that O’Reilly’s reason was not pretext for
discrimination.
Accordingly, we affirm the district court’s conclusion that Russell’s retaliation claim fails.
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II. Constructive Discharge
Standard of Review
“On an appeal from a judgment entered after a bench trial, we review the district court’s
findings of fact for clear error and its conclusions of law de novo.” Lindstrom, 424 F.3d at 492
(citing Pressman, 384 F.3d at 185).
Analysis
Russell also contends he was constructively discharged in violation of the FMLA. Saroli
v. Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005). This Court has
previously analyzed constructive discharge claims under the retaliation theory of liability. Id.
(“The adverse employment action [plaintiff] points to in this case is her constructive discharge.”).
“To demonstrate constructive discharge, a plaintiff must adduce evidence to show that
(1) the employer deliberately created intolerable working conditions, as perceived by a reasonable
person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the
employee actually quit.” Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012) (internal quotation
marks and alterations omitted) (quoting Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d
1073, 1080 (6th Cir. 1999)). “To determine if there is a constructive discharge, both the employer’s
intent and the employee’s objective feelings must be examined.” Id. (quoting Moore, 171 F.3d at
1080).
To determine whether the first prong of a constructive discharge claim has been met, the
court considers a number of factors.
Whether a reasonable person would have fe[lt] compelled to resign depends on the
facts of each case, but we consider the following factors relevant, singly or in
combination: (1) demotion; (2) reduction in salary; (3) reduction in job
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responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or humiliation by the
employer calculated to encourage the employee’s resignation; or (7) offers of early
retirement or continued employment on terms less favorable than the employee’s
former status.
Logan v. Denny’s, 259 F.3d 558, 569 (6th Cir. 2001) (quoting Brown v. Bunge Corp., 207 F.3d
776, 782 (5th Cir. 2000)); Saroli, 405 F.3d at 451.
The district court concluded, based on a number of factors articulated in Logan, that Russell
was not constructively discharged. The court reasoned that Russell was not demoted after being
removed from assurance pay, but remained store manager, that Russell presented no evidence that
his job responsibilities were reduced or that he was reassigned to menial or degrading work, or
that he was reassigned to work under a younger supervisor. It noted that his reduction in pay was
“less favorable,” but that his income would increase if he increased his sales. (R. 65, Findings,
PageID # 1184.)
Contrary to the district court, Russell argues that the removal from assurance pay and
resulting reduction in pay “created intolerable working conditions, as perceived by a reasonable
person.” Savage, 665 F.3d at 739. Turning to the Logan factors, Russell was not demoted, did
not experience a reduction in job responsibilities, was not reassigned to menial or degrading work,
was not reassigned to work under a younger supervisor, was not badgered, harassed, or humiliated
by anyone at O’Reilly to encourage his resignation, and was not provided offers of early
retirement. However, because he was removed from assurance pay and subsequently received less
money, Russell did establish that there was a reduction in salary and continued employment on
terms less favorable than the employee’s former status. And Russell produced evidence that he
lost $6,115.52 from February 2013 to September 2013 as a result of being switched to the
- 16 -
Case No. 17-1961
Russell v. CSK Auto
commission system and losing his assurance pay. The actual losses he experienced month to
month ranged from $391.49 in June to $1,182.06 in February. On average, Russell lost about $700
a month. Russell’s annual wage would have been $58,903.00 had he remained on assurance pay.
These losses represent a significant percentage of Russell’s monthly and yearly salary.6
Nevertheless, there was also evidence that the assurance pay system was a temporary
system instituted to ease the transition from a salary-based system to a commission-based system
after O’Reilly took over from CSK. Russell testified that he understood that the assurance pay
system was temporary. The store managers were told that they would be taken off assurance pay.
O’Reilly was concerned about the number of managers on assurance pay, and was working to
ultimately remove all of their managers from assurance pay. In fact, many store managers were
removed from the plan by Gdowski, and most of them lost pay switching to the commission-based
system. And seven or eight of the eleven managers that Young supervised were taken off
assurance pay.
Further, we do not believe Russell produced evidence that O’Reilly took Russell off
assurance pay with the intention of forcing him to quit.7 Again, Russell’s removal from assurance
pay took place in the context of a company trying to move from a salary-based system to a
commission-based one. The company’s goal was to get all of its managers off the temporary
assurance pay plan. And Russell received one of the highest assurance pays, received one of the
highest base pays, and had been on assurance pay for a much longer period of time than average,
6
The district court focused on the fact that Russell could have increased his sales. But it seems problematic
to suggest that a significant reduction in pay cannot equate to an intolerable working condition if an employee could
theoretically increase their income by increasing their sales. That would make it hard for anyone making a commission
to prove their case.
7
The district court did not reach the question of O’Reilly’s intent because it resolved the claim on the basis
that Russell had not shown intolerable conditions.
- 17 -
Case No. 17-1961
Russell v. CSK Auto
even though his store’s sales did not justify his compensation. Additionally, both Young and
Gdowski testified that Russell was a good performer and had done good work with the Lapeer
store, so it seems unlikely that they would want him to quit. In his reply brief, Russell argues that
because O’Reilly did not restore Russell’s assurance pay in 2013, even though it did in 2010,
O’Reilly intended Russell to quit. But we are not persuaded by this argument. We do not believe
there is evidence in the record suggesting that O’Reilly removed Russell from assurance pay with
the intention of forcing him to quit.
Because Russell has not shown that O’Reilly “deliberately created intolerable working
conditions . . . with the intention of forcing [Russell] to quit,” Savage, 665 F.3d at 739, we affirm
the district court’s conclusion that the constructive discharge claim fails.
III. FMLA Interference
Standard of Review
As detailed above, “[o]n an appeal from a judgment entered after a bench trial, we review
the district court’s findings of fact for clear error and its conclusions of law de novo.” Lindstrom,
424 F.3d at 492 (citing Pressman, 384 F.3d at 185).
Analysis
An employer may not interfere with any right created under the FMLA. 29 U.S.C.
§ 2615(a)(1). To succeed on an FMLA interference claim, a plaintiff must demonstrate that:
(1) he was an eligible employee; (2) the defendant was an employer as defined
under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the
employee gave the employer notice of his intention to take leave; and (5) the
employer denied the employee FMLA benefits to which he was entitled.
- 18 -
Case No. 17-1961
Russell v. CSK Auto
Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (citing Cavin v. Honda of Am. Mfg.,
Inc., 346 F.3d 713, 719 (6th Cir. 2003)). An employer’s intent is not relevant to this inquiry.
Edgar, 443 F.3d at 507.
The parties do not dispute the first four elements: (1) Russell was an eligible employee;
(2) O’Reilly was his employer as defined under the FMLA; (3) Russell was entitled to leave under
the FMLA between December 2012 and January 2013; and, (4) Russell gave notice to take leave.
The parties dispute whether O’Reilly denied Russell FMLA benefits to which he was entitled.
After a period of FMLA leave, an employer must restore the employee to his previous
position or its equivalent. 29 U.S.C. § 2614(a)(1); Hunter, 579 F.3d at 690 (citing 29 U.S.C.
§ 2614(a)(1)). “An equivalent position is one that is virtually identical to the employee’s former
position in terms of pay, benefits and working conditions, including privileges, perquisites and
status.” 29 C.F.R. § 825.215(a). “Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees . . . .” Id. § 825.215(c)(2).
However, an employee “has no greater right to reinstatement or to other benefits and
conditions of employment than if the employee had been continuously employed during the FMLA
leave period.” 29 C.F.R. § 825.216(a). “Both the statute and the DOL regulation likewise establish
that interference with an employee’s FMLA rights does not constitute a violation if the employer
has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged
conduct.” Edgar, 443 F.3d at 508. A plaintiff can seek to rebut the defendant’s proffered
justification. Romans, 668 F.3d at 841.
The district court concluded that O’Reilly did not interfere with Russell’s rights under the
FMLA because Russell “has failed to show what FMLA benefits he was denied.” (R. 65, Findings,
PageID # 1182.) The court reasoned that Russell was “allowed to take FMLA twice. He was not
- 19 -
Case No. 17-1961
Russell v. CSK Auto
discouraged from taking his FMLA leave in 2012–2013, shortly before his removal from the plan.”
(Id.) Russell argues that the district court failed to determine whether O’Reilly interfered with
Russell’s FMLA rights when it restored him to a position without assurance pay upon his return
to work.
However, the district court did find in relation to Russell’s retaliation claim that O’Reilly
removed Russell from assurance pay because “his performance did not produce profits sufficient
enough to cover [Russell’s] salary under the plan,” and that O’Reilly’s proffered reason was not
pretext for discrimination. (Id. at # 1175, 1180–81.) This finding also applies here and supplies
the “legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged
conduct.” Edgar, 443 F.3d at 508. And as explained above, we cannot say that the district court
clearly erred in so finding. Russell’s interference claim, then, falls for the same reason that his
retaliation claim does.
Accordingly, we affirm the district court’s conclusion that Russell’s interference claim
fails.
IV. Breach of Contract
Standard of Review
Again, “[o]n an appeal from a judgment entered after a bench trial, we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” Lindstrom, 424 F.3d at
492 (citing Pressman, 384 F.3d at 185).
Analysis
Under Michigan law, a breach of contract claim has four elements: “(1) the existence of a
contract between the parties, (2) the terms of the contract require performance of a certain action
by the defendant, (3) the defendant breached its obligation to perform, and (4) the plaintiff incurred
- 20 -
Case No. 17-1961
Russell v. CSK Auto
damages as a result of the breach.” I.B. Mini-Mart II, Inc. v. JSC Corp., No. 296982, 2011 WL
1435978, at *2 (Mich. Ct. App. Apr. 14, 2011) (citation omitted).
“To state a breach of contract claim under Michigan law, a plaintiff must first establish the
elements of a valid contract.” Parson v. Urban Ins. Adjusters, Inc., No. 273098, 2007 WL
3088588, at *1 (Mich. Ct. App. Oct. 23, 2007) (quoting In re Brown, 342 F.3d 620, 628 (6th Cir.
2003)). Under Michigan law, “[a] valid contract requires five elements: (1) parties competent to
contract, (2) a proper subject matter, (3) legal consideration, (4) mutuality of agreement, and
(5) mutuality of obligation.” Bank of Am., NA v. First Am. Title Ins. Co., 878 N.W.2d 816, 830
(Mich. 2016) (citation omitted). “Before a contract can be completed, there must be an offer and
acceptance.” Pakideh v. Franklin Commercial Mortg. Grp., Inc., 540 N.W.2d 777, 780 (Mich. Ct.
App. 1995). “The party seeking to enforce a contract bears the burden of proving that the contract
exists.” AFT Michigan v. State of Michigan, 866 N.W.2d 782, 804 (Mich. 2015) (citing Hammel
v. Foor, 102 N.W.2d 196 (Mich. 1960)).
Russell argues that there was a contract between O’Reilly and Russell providing that
Russell would remain on assurance pay so long as his sales continued to increase. The district
court concluded that there was insufficient evidence “to establish [the existence of] a contract
stating [Russell] would remain on the Assurance Pay Plan for an indefinite period of time.” (R.
65, Findings, PageID # 1186.)
At trial, Russell testified that Gdowski made him a promise that as long as his sales
continued to grow, he would stay on the assurance plan. As evidence of this agreement, Russell
points to an email sent by Gdowski to Russell, in which Gdowski referenced a “bargain.” The
email said:
- 21 -
Case No. 17-1961
Russell v. CSK Auto
Tom, I agree [the Lapeer store] has made significant strides in 2011 and trust me it
has not gone unnoticed. The success of the store relates directly to your leadership
you have provided for the team and your ability to inspire [team members] to
achieve store goals. I appreciate your efforts and thank you for holding up your
end of the bargain we discussed last December. Making money is not an easy task
at that store with the rent factor, but you and the team overcame the obstacles and
drove sales and made some money, good job. Stay focused. [District manager]
opportunities will become available in 2012.
(R. 70, Trial Tr., PageID # 1250; Russell’s Appendix I, Plaintiff’s Exhibit 10, at 16.) By contrast,
Gdowski testified that he never promised Russell that he would be on assurance pay so long as he
increased his sales. Gdowski also testified that his language, specifically the language about
district manager opportunities, was intended to “inspire and motivate” Russell. (R. 70, Trial Tr.,
PageID at # 1418.)
Young testified that Gdowski told Russell that as long as his sales continued to grow that
he would remain on assurance pay, that “[a]s long as the man does his job, he will remain on
assurance as long as he possibly can.” (Id. at # 1320–30.) Apparently this was not an unusual
statement to make to an O’Reilly employee. However, Young also testified that Gdowski “never
promised” that Russell would remain on assurance pay as long as his numbers increased. (Id. at #
1341.) Young distinguished between mentioning and promising. (Id. at # 1342–43.)
Because the district court could have credited Gdowski’s and Young’s testimony that there
was no promise made to Russell that he would stay on assurance pay so long as his sales increased,
we cannot say the district court’s finding was clear error. Even though Gdowski used the phrase
“bargain” in the email, it is not clear that he was referencing an agreement to keep Russell on
- 22 -
Case No. 17-1961
Russell v. CSK Auto
assurance pay as long as his sales increased.8 Because there is little more than the parties’ own
testimony, we are reluctant to say the district court’s finding amounts to clear error.
Consequently, the district court did not err in determining that Russell produced
insufficient evidence to establish a contract. Accordingly, we affirm the district court’s conclusion
that Russell’s breach of contract claim fails.
CONCLUSION
For the reasons set forth above, we AFFIRM the decision of the district court.
8
Again, a couple of times, Gdowski seemed to loosely reference a two-year opportunity given to Russell at
the Lapeer store with assurance pay. (Id. at #1366–67.) On appeal, O’Reilly argues that any bargain referenced in
the email would have referred to this agreement. (O’Reilly Br. at 43.) As explained above, we are skeptical of this
reason. See supra note 3.
- 23 -
Case No. 17-1961
Russell v. CSK Auto
KAREN NELSON MOORE, Circuit Judge, dissenting. By the time this case reached
the trial stage, only one question remained in Thomas Russell’s unlawful retaliation claim—
whether “the true reason for [his] dismissal was [his] medical leave.” Killian v. Yorozu Auto.
Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006). In answering this question, the district court was
required to “find the facts specially and state its conclusions of law separately.” FED. R. CIV. P.
52(a). “Findings should be comprehensive and relevant to the issues so as to provide a rational
basis for the trial court’s decision.” Grover Hill Grain Co. v. Baughman-Oster, Inc., 728 F.2d
784, 792 (6th Cir. 1984). Though we do not require district courts presiding over bench trials “to
prepare elaborate findings on every possible issue raised at trial, . . . there must be findings, in such
detail and exactness as the nature of the case permits, of subsidiary facts on which an ultimate
conclusion can rationally be predicated.” Id. Here, the district court’s efforts fail even this “liberal
standard.” Id.
At trial, Russell presented a host of evidence to prove that his medical leave was the real
reason for his extreme drop in pay. For instance, to rebut Dan Gdowski’s claim that Russell was
removed from assurance pay because he had been on assurance pay for a long time and had not
adequately increased sales at the Lapeer store, Russell elicited testimony from Gdowski that
another O’Reilly employee—Yvonne Cronin—had been on assurance pay for even longer than
Russell and had received an extension of her assurance pay at the same time that Russell’s
assurance pay was cut off, even though Cronin’s sales also did not cover the cost of her assurance
pay. R. 70 (Trial Tr. at 182–84) (Page ID #1397–99); D.E. 21, App’x to Pl.’s Br., Vol. II, Ex. 5 at
31–32. Gdowski testified that he had extended Cronin’s assurance pay because she had been
transferred to a brand-new store, while Russell had been transferred to an established store. R. 70
(Trial Tr. at 200) (Page ID #1415). Russell, however, testified that the Lapeer location had also
- 24 -
Case No. 17-1961
Russell v. CSK Auto
switched stores in May 2012—i.e., during the course of Russell’s two-year tenure as manager of
that store. Id. at 106–07 (Page ID #1321–22).
The proper resolution of this dispute mattered to Russell’s case: if Cronin and Russell were
similarly situated, then Gdowski’s differential treatment of the two employees would be strong
evidence that discrimination—and not Russell’s inability to nearly double sales at the Lapeer store
within two years—drove his decision to remove Russell’s assurance pay. See Bobo v. United
Parcel Serv., Inc., 665 F.3d 741, 753 (6th Cir. 2012) (“Discrimination cases frequently turn on
whether the plaintiff can identify one or more comparators who are similarly situated in all relevant
respects.”). The district court, however, never acknowledged Russell’s arguments about Cronin
and never decided whether Cronin was similarly situated to Russell. Instead, the district court’s
Findings of Facts and Conclusions of Law merely noted that “similarly situated managers at other
stores also were removed from the Assurance Pay Plan,” and “[t]wo other store managers that were
removed had taken FMLA leave.” R. 65 (Findings of Fact and Conclusions of Law at 12) (Page
ID #1181). The district court never identifies who among the other store managers were similarly
situated to Russell. To the extent the district court believed that the two other managers who had
taken FMLA leave and been removed from assurance pay were relevant comparators, such a
finding would have been clearly erroneous. Neither manager had taken FMLA leave immediately
before being deprived of assurance pay, as Russell had. Rather, one of those two managers took
FMLA leave three years after his or her assurance pay ended, D.E. 21, App’x to Pl.’s Br., Vol. II,
Ex. A at 100, which renders his or her experience entirely inapposite to the case at hand. The other
manager returned from FMLA leave five months before being initially placed on assurance pay.
Id. Because the record shows only that Gdowski eventually removed this manager from assurance
pay, and thus does not reveal whether Gdowski was involved in the earlier decisions to grant or
- 25 -
Case No. 17-1961
Russell v. CSK Auto
maintain the manager’s assurance pay, there is no way to know whether this manager was treated
better by Gdowski after taking FMLA leave than Russell was.
The district court’s failure to assess whether Cronin and Russell were similarly situated is
reversible error, particularly in light of the otherwise vague or erroneous findings highlighted
above. We cannot tell from the Findings of Fact whether the district court (a) found that Cronin
was similarly situated, but then erroneously determined that the experiences of the two other store
managers identified above outweighed any evidence of unlawful discrimination, or (b) found that
Cronin was not similarly situated, such that Russell had failed to provide sufficient evidence of
discrimination to win his case. While the latter decision might not be clearly erroneous, the former
decision would be. As we lack a “clear understanding of the basis for the trial court’s decision,”
remand for “clarification and/or further consideration” is warranted. Grover Hill, 728 F.2d at 792–
93. The majority sees it differently, and I therefore respectfully dissent.
Because the viability of Russell’s unlawful-interference claim also turns on whether
Russell was removed from assurance pay for a “legitimate reason unrelated to the exercise of
FMLA rights,” see Maj. Op. at 19 (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir.
2006)), I dissent from the majority’s resolution of that claim, as well.
- 26 - | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4143336/ | OFFICE OF THE ATTORNEYGENERAL OF TEXAS
AUSTIN
Departnmnt of Agrioultun, Pago 8
It is the rule that an oftlosr or agent OS the
State Is allaed only suoh oonpensation 6na muolumente aa
are oxpreealy 00nferrtba upon him an remuneration sar the
disoharge~ of his official dutisr au an agent of the State.
LloCallav. City of Rookdale, l.l.2 Tax. 209, Z46 9. W. 654.
It follas that any pub110 oiiioor or agent who domndr
mlleago, 0306 or apenaes must point out mom statute au-
thdzing it8 auonan~~. wh0r0 a duty n3qui.d ml ex-
penditure of money Is Imposed upon a public off2 oar or
agent, and no pr~vialon 18 ma0 ror relmburramsnt to the
offloor by the state rotor tho expons.8 inollrsml, mob orsi-
acr or agtmt ia deemed to be repald for th6 expenma in-
curred in the disohargo of 8uoh duty by whatever oompuua-
tion ia allowed and pi& to him Sor hia senioea as suoh
pub110 agent.
Bin00 tharo ia no provision of the statute or
OS the apprlhpriationbill oonisrring ths right to m&a-
bursemnt upon the ilWDCOtOn for the eXpe500Si.zWwnd
by than in fttrni8hing the bond required by law ‘you are
adviued that in tho oplnfron.of thte doparfPaan~ rush
baa& prom& oanaot be paid out of the approprfation to
whloh you refer.
Touru very truly
ATTo88ETQSXERALOF TXXM
APPROVEDJAN
14, 1941
A
.-. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143376/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hononbla Goorgo 61 Shoppar
Coznptrol&r oi INbib AtMOunt#
klmln, Texar
Dear 3lr1
10 me in rcaeipt 0
questt&a opinion ot this
therein as rollowa I
*&tio1oa 93445 l . 3., refer t0 .I
the eanaellatl 6 mtl the re-
PP&a6mlmnt of re tha esua6s-
neatr have bf
srs*8or-aollaotor i.q-
thr rhlch @pp.&W
tNL6S
after whioh the pro-
the Comisrionuv
e68wnt.6, the T82 A88awof
ourrent tax roll ohargltq
oh the aerrssiwnts
are aade, aad
a amount or tame Ohar&eda&aim)
nek86 a penalty ohargo qua1 to
0 rate of 61x par aant per annum,
loulation iroa the data th tams
mmuL6 bava b4oome delloquent htad they beon progbr-
lyls*o r me&
to ,
t& e
6ate the tax08 a r e
r *a so o s8ed,
lutlolm ?94&3 provider for the 0oUeotion of
rdditional interest If the taxor am not immedf8telY
paid. Due to the fast that the roaraosm6nts are
~orrrble George H. Sho::perd, Fe60 L
pler%a on a 8U~phlllWltto the lurroat tu rfbll and
the taxes, ii not paid lmme4fet%ly, es% not ro-
psrtrdon the doliaqwnt tu roll until th% 0~4
o? the time1 rear, you will ~18~88 e&vise thir
do ertaent v&i&her or not tho prorlelone of Howe
Id 1 no. ‘16, i&6 Of th6 Bbgul~r 88S810~ Of th0
Forty-rwenth Logi8leture, *Ill in Ony UOyOrroot
the eaoutkt of poaalty to be oolleotod on pro arty
ree8re~eo4 tma0r the protleion8 or a3tioloe # 846
and 92549.9
*300t1011 1. %et l11 ietorO8t *nd pOlU31Li88
t!et hero roaruod on all ad raloroa end poll tar68
that wore delinquent on or before July 1, 1940, duo
the 8tat0, my OountJ, 66muon rohool dfefrlot, road
biltriO6, levee improvomont dL8trlot Getor in-
provamnt dl8trlot end water controi rod hprore-
mat dilrtrlot irr~getlon dlrtriot and 0th~
6SsiWd Subdi:i8ioa8 %t the State [end, 8ubjoct
to the provisions h%relnb%iore en& herelnef%ar aon-
teinoa, 8ueb lntero8t end p%neltlee oa delinquent
ad velor%a end poll taxes due Oltles, tome, sod
rillaeer, end speoial aohool districts, and ln-
depondsnt 8ehool dirtrictr,) shall be Snd t&o &am%
are h8reby rehaead, prorided 8alO ad Yelore end
poll taxes are peld on or before blovomber 1, 19U..
. . . .(1
A8 you will note from the reed& of the lbove, la
ortlsr for Eouw Bill X0. 96 to eft%ot,the latorert and ponel-
ty on de~quont ad Yalore8i tex68, it 18 ae8eeeary thet the
la!36wore dell.nquont on or bolor0 ru4 1, 1940.
In your quee6lon you inquire about p?oprrty whloh
18 bolng roee8o8nod for texee during the ourr8ut you, unuor
the prori8iona of ArtlO& 9349, wkioh ~%a&8 in pert e8 followet
,
Vhen raid list bar bren so made up tho 66m-
ni88iOlIW8 oeurt my, et say ~eotfug, order l Oen-
68lhtiOli Of
8UOh prOp%rti%S illmid liet thet SF%
ahhornto have been prorlowly eeeoe8ed, but *hlOb
6888SWmtS era found t0 bo 1meliQ slt& hare ILOt
been caneelod by any torm?r order of the cofaai8-
eloners oourt, or by deorw of eny district ,Wurti
871
Eonoreble c8OrgO Ef. She-~.pard,PagO 8
end rhell then r eferluoh list of properties to
be 688688ed OS SW4&8S888Od t0 the teX 688088OS Who
ehell prooOefl et imoe to make ea r88088a*nt of 611
eel6 propertI88, iroe, the data clien by raid 118t
(the oertlfleete of the Comptroller a8 to le8ee8-
mnte or re-eseee8arante made br the tax e8eeeeor
shell not be neoorsery a8 require4 under Artlola
92.09, but he 8hall furnish all blenk for&~ needed,
that unltormlty %ay be had in 611 countiu), en4
when oanplotsd shall 8ubmit the sanie to the oom-
mf8eionere oourt, who 8htil pass upon the telu-
etIon8 flxsd by hial and, wlmn ly p r o raed 8to tho
ralue8, shall oauBe the taxer to bo lo~puted and
extended at the tax rate in effect for eeoh eope-
rate gear mntloned In raid list; end, in sSItion
thereto, shell oewe to be add84 a penalty equal
in etqowt tj what wuld be 81x per oent Inter*&
to th8 date of making said list from the dato suoh
propertie would ham b8M delinquent ha6 8ema beon
propsrly rendered by the ovum thareor at the tlms
and for the years 8tsted ln raid list) . . . .*
Article 984i3 prwidee as follower
"The said list, when eom~lete IO all rs8peot6,
and tiled with the tat oolleotor, shell oanetitute
a valid lien egeinet 611 th6 propertie antior&
in said li8t for the sull eieouet 3r taxer, pa~~11-
tlee, oftloere rests, adrertirring and sir per ornt
fntSrOSt ?rOm the &F&O Of 6Sid 1150 t0 th6 &Et8 Of
the peymsnt of the full eiia due on eeeh separate
piece OS property. ii oopy of said list and all
asaoelletlon order8 shall be furnirrhed to the Cosp-
troller, and e eo?y filed wltt the oounty clerk.
Id.’
Lo opld.011 No. O-ZOW, this department oonsl6ereU
the pueetlon of the efi6Ot of the stetutk st 1ImItetloee u on
texee whloh'bed been rers8eeeed urid6r the authority of Art f -
8108 9546 Md q%q. &I said opinion we ruled that the 8tetUtO
of lieiitetion be&i8 to rue only fSGathe date Of rO888e88iPuPt
end not fro= the date OS the original 8eee8emeat whIoh ~38
deolared ml& fe line %Ith the above holding it is our opti-
Ion that when, et the prssent tine, tares are reasse8sed ageln8t
a partirtier piece of property bSSSu80 the Same we8 eith8r
Honorable George 8. ShspparQ, Page 4
omitted rroz. the tax roil orfginally or the orlglnal aa~mw-
aat aEa-sinet -aid property warn~014, the rama are not tuxu
whiuh *are Qelln96, supra.
te trust that the foregoing fully ansmra your in-
quiry In the mittor.
Your8 very truly
xTTtXZRLIE
Cri$iI;iL
OF TISUS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128574/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
February 21,2007
The Honorable Susan D. Reed Opinion No. GA-052 1
Bexar County Criminal District Attorney
300 Dolorosa, Fifth Floor Re: Whether funds collected by a county clerk as
San Antonio, Texas 78205-3030 part of the records management and preservation
fee may be used to purchase certain archival
records (RQ-0525-GA)
Dear Ms. Reed:
You ask whether funds collected by a county clerk as part of the records management and
preservation fee may be used to purchase certain archival rec0rds.l
You indicate that the document at issue
consists of verified correspondence from William E. Howth, a
Colonel under Ben Milam, and third signer of the first Declaration of
Independence at Goliad, to Don Jose Antonio Navarro, dated
September 10, 1838, and addresses Navarro’s election to the
Congress of the Republic of Texas on the grounds of “Voting
Irregularities.” The document is addressed to the “Republic of
Texas, County of Bexar” and to Mr. Navarro and is a notice of intent
to take the deposition of A.B. Col. [EFH] who is believed to have
been a polling clerk or other election official.
Request Letter, supra note 1, at 2. You declare that, although the county clerk has in his possession
a copy of the document, the clerk believes that the original “document was . . . part of the permanent
records of the County and must be returned to those records as part of his duties of preservation and
records retention completeness.” Id. at 3.
Pursuant to section 118.0 11 (b) of the Local Government Code, a county clerk “may set and
collect . . . from any person” a records management and preservation fee of “not more than $5” for
non-court-related services. TEX.LOC.GOV’TCODEANN. $ 118.011 (b) (Vernon Supp. 2006). The
‘See Letter fkom Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas (Aug. 24, 2006) (on file with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Susan D. Reed - Page 2 (GA-0521)
referenced fee “is for the records management and preservation services performed by the county
clerk after the filing and recording of a document in the records of the office of the clerk.” Id.
5 118.0216(a). “The fee may be used only to provide funds for specific records management and
_ preservation, including for automation purposes.” Id. 5 118.02 16(d). Another statutory provision
directs a commissioners court to “establish a county clerk records management and preservation fund
for fees subject to Section 118.02 16 and approve in advance any expenditures from the fund.” Id.
5 203.003(5) (Vernon 1999).
The primary purpose of statutory construction is to ascertain and give effect to the
Legislature’s intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In order to
ascertain legislative intent, we begin by construing a statute according to its plain language. See In
re Canales, 52 S.W.3d 698, 702 (Tex. 2001). As we have noted, the records management and
preservation fee described by section 118.0 11 of the Local Government Code is to be used “for the
records management and preservation services performed by the county clerk afler the filing and
recording of a document in the records of the office of the clerk.” TEX.LOC.GOV’TCODEANN.
$ 118.0216(a) (V ernon Supp. 2006) (emphasis added). The original of the document at issue here,
while it may or may not have been originally filed and recorded in the records of the county clerk,
is not at present a part of those records. In our view, the fee described by section 118.011 may not
be used to purchase original records that are not in the clerk’s possession. Rather, its use is restricted
to “records management and preservation services performed by the county clerk after the filing and
recording of a document in the records of the office of the clerk.” Id.
The Honorable Susan D. Reed - Page 3 (GA-0521)
SUMMARY
The records management and preservation fee described by
section 118.011 of the Local Government Code may not be used
to purchase original records that are not currently in the possession
of the county clerk. The use of the fee is restricted to “records
management and preservation services performed by the county clerk
after the filing and recording of a document in the records of the
office of the clerk.” TEX.Lot. GOV’T CODEANN. 5 118.0216(a)
(Vernon Supp. 2006).
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128595/ | ATTORNEY GENERAL EXAS
GREG ABBOTT
January 12,2007
The Honorable Rodney Ellis Opinion No. GA-0500
Chair, Committee on Government Organization
Texas. State Senate Re: A school district’s authority to delegate
Post Office Box 12068 food products and supplies purchases to a food
Austin, Texas 7871 l-2068 service management company (RQ-0509.GA)
Dear Senator Ellis:
You ask about a school district’s authority to delegate food products and supplies purchases
to a food service management company.’
The federal government invites entities that qualify as “school food authoritieZ2 to
participate in national school nutrition programs, including the National School Lunch Program,
the School Breakfast Program, and the Summer Food Program. See generally 42 U.S.C.A.
§§ 1751-1769i, 1773 (West 2006); 7 C.F.R. @ 210.1-.32,220.1-.21, and 225.1-.20 (2006). These
programs offer school food authorities grants-in-aid to help the authorities better provide reduced
or no-cost and nutritious meals to the nation’s students. See, e.g., 42 U.S.C.A. § 1751 (West 2006)
(Congressional declaration of policy for the School Lunch Program). Relevant to your question,
federal rules permit school food authorities to contract with food service management companies,3
which manage an authority’s food service operations in one or more of the authority’s schools, so
long as the authority adheres to federal and state regulations controlling such contracts. See, e.g.,
7 C.F.R. $210.16 (2006). Your question pertains to an opinion this office issued that discussed the
‘See Letter from Honorable Rodney Ellis, Chair, Committee on Government Organization, Texas State Senate,
to Honorable Greg Abbott, Attorney General of Texas (July 10, 2006) (on file with the Opinion Committee, also
available at http://www.oag.statetx.us) [hereinafter Request Letter].
2A school food authority is defined by relevant federal regulations as “the governing body which is responsible
for the administration of one or more schools; and has the legal authority to operate the Program therein or be otherwise
I
approved by [the Food and Nutrition Service, U.S. Department of Agriculture] to operate the Program.” 7 C.F.R. 5 2 10.2
(2006). In Texas, an independent school district is, for example, a school food authority as the district is charged with
the “duty to govern and oversee the management of the public schools of the district.” TEX. EDUC. CODE ANN. 5
11.15 1(b) (Vernon 2006). See ah id. 3 33 $901 (certain school districts required to participate in breakfast program).
3“Food service management company” is defined as “a commercial enterprise or a nonprofit organization which
is or may be contracted with by the school food authority to manage any aspect of the food school service.” 7 C.F.R.
fj 210.2 (2006).
The Honorable Rodney Ellis - Page 2 (GA-0500)
state procedures a Texas school district must follow when contracting with a food service
management company. See Request Letter, supra note 1, at 1; Tex. Att’y Gen. Op. No. DM-14
(1991).
In 1991, this office considered whether it was permissible for a school district to delegate to
a food service management company the authority to purchase food and supplies required under a
food service management contract. See Tex. Att’y Gen. Op. No. DM-14 (1991) at 1. Specifically,
DM-14 considered the lawfulness of “a procedure whereby the food service management company
supervises the bidding process for the school district in conformity with section 21.90 1, but vests
final decision-making authority in the board of trustees, ‘either by review and approval of the
process, or by a direct decision.“’ Id. at 3-4. Examining then-applicable Education Code section
21.901 ,4 which governed such a bidding process and vested authority over the process solely in a
school district, this office determined that this procedure would constitute a delegation of the
district’s authority. Id. at 4? Ultimately, the opinion concluded, such a “delegation” was not
permitted: .
In the absence of statutory authorization, a public body may
not delegate, surrender, or barter away statutory duties that involve
the exercise of judgment and discretion. The power to make
purchases for a public body has been included among such
nondelegable powers.
Id at 4 (citations omitted). You question this conclusion. See Request Letter, supra note 1, at 2.
You note that, relying on Attorney General Opinion DM-14, the Texas Department of
Agriculture -which oversees Texas’s participation in the federal school nutrition programs-has
prohibited school districts from “contracting with the food service management company to purchase
food and supplies used in the performance of its obligations under a food service management
agreement. ” Request Letter, supra note 1, at 1. You understand “that the statute [former Education
Code section 21.9011 governing purchasing by school districts at the time DM-14 was issued has
been deleted from the Education Code.” Id. at 2. You also understand “that subsequent to issuance
of DM-14, the Texas Supreme Court in 1997 clarified the standards that courts should apply in order
4See Act of June 2,1969,61st Leg., R.S., ch. 889,§ 1, sec. 21.901,1969 Tex. Gen. Laws 2735,2936, amended
by Act of May 18, 1977,65th Leg., R.S., ch. 472, tj 1, 1977 Tex. Gen. Laws 1224, 1224-25, amended by Act of May
15, 198 1, 67th Leg., R.S., ch. 259, tj 1, 1981 Tex. Gen. Laws 668,668, amended by Act of May 24, 1985,69th Leg.,
.
R.S., ch.456,§ 1,1985 Tex. Gen. Laws 1613,1613, amendedbyActofApr.24,1989,71stLeg., R.S., ch. 54,§ 1,1989
Tex. Gen. Laws 368,368-69, amended by Act of May 23, 1989,71st Leg., R.S., ch. 814, $j 5, 1989 Tex. Gen. Laws
3722,3725-26, amended by Act of Aug. 25, 1991,72d Leg., 2d C.S., ch. 8, $ 3.04, 1991 Tex. Gen. Laws 137, 158,
amended by Act of May 21, 1993,73d Leg., R.S., ch. 750, 9 1, 1993 Tex. Gen. Laws 2945,2945, amended by Act of
May 29, 1993,73d Leg., R.S., ch. 757, 5 1, 1993 Tex. Gen. Laws 2953,2953, repealed by Act of May 27, 1995,74th
Leg., R.S., ch. 260, $5 1,58, 1995 Tex. Gen. Laws 2207,2425-26,2498.
?n 1995 the Legislature reenacted and revised titles 1 and 2 of the Education Code, repealing section 29.90 1
and replacing it with section 44.03 1. See Act of May 27, 1995,74th Leg., R.S., ch. 260, @j 1,58, 1995 Tex. Gen. Laws
2207,2425-26,2498.
The Honorable Rodney Ellis - Page 3 (GA-0500)
to determine whether a delegation is permissible.” Id (citing Tex. Boll Weevil Eradication Found.,
Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997)). Thus, you ask “whether the opinion expressed in
DM-14 effectively prohibiting a food service management company from purchasing food and
supplies under a food service management contract is the proper interpretation of applicable state
law.” Id. 6
Before addressing your precise question, we make two preliminary observations. First, we
understand your question to concern a situation in which a school district contracts with a food
service management company for that company to provide the district with food and supplies as a
part of its services. See id. at 1 (describing “fixed meal rate” contracts). The situation you describe
differs from the one in DM-14 in which a school district attempted to contract with a food service
management company for the company to use the district’s food and supplies and to supervise the
purchase of those food and supplies on the school district’s behalf. See Tex. Att’y Gen. Op. No.
DM-14 (199 1) at 3-4; see also Request Letter, supra note 1, at 1 (describing “cost reimbursement
plus fee” contracts).
Second, DM-14 predates the line of cases represented by Boll Weevil---where the Supreme
Court expounded the delegation doctrine for delegations to private entities. The essence of the
delegation case law on which DM- 14 relied was discretion. That line of cases held that discretionary
duties statutorily entrusted to an officer or entity may not be subdelegated to another (whether public .
or private) in the absence of legislative authorization. See Guerra v. Rodriguez, 239 S.W.2d 9 15,
920 (Tex. Civ. App.- San Antonio 195 I, no writ). However, DM- 14 did not have the benefit of the
delegation clarifications under Boll Weevil and its progeny. Under Boll Weevil, there is no
government delegation to a private entity unless the government is delegating the authority to set
public policy or the like. See FMProps. Operating Co. v. City ofAustin, 22 S.W.3.d 868,880 (Tex.
2000); Boll Weevil, 952 S.W.2d at 466-75.
We begin with the issue of whether. there is a statutory prohibition on a school district
contracting with a food service management company for that company to provide food and supplies
as part of its services. In this respect, the requirements governing a district’s purchasing contract that
were formerly located at Education Code section 2 1.90 1 are now found, with certain modifications,
at Education Code. section 44.03 1. See TEX. EDUC.CODEANN. 5 44.03 1 (Vernon 2006).7 Section
44.03 1 governs all school district purchasing contracts, except for “contracts for the purchase of
produce’ or vehicle fuel, valued at $25,000 or more in the aggregate for each 12-month period.” Id.
5 44.03 1(a) (footnote added). This section provides that such contracts must provide the best value
for the district, and they must be made by either competitive bidding, competitive sealed proposal,
request for proposals, a catalogue purchase, an interlocal contract, or a design-build contract. See
6You do not ask and we do not address whether the food service management contracts contemplated here
comport with federal statutory and regulatory requirements.
7See supra note 4.
‘For this opinion’s purposes, we will assume that a contract for “produce” is not identical to the purchase of
goods and services procured by means of a food service management contract.
The Honorable Rodney Ellis - Page 4 (GA-0500)
id. There is, however, nothing in this section that requires a school district to contract separately for
the underlying goods used by vendors from which the district purchases services.
As the Legislature has not chosen by statute to require a school district to contract separately
for the underlying goods, we must next consider whether the delegation doctrine forbids such an
arrangement. The delegation doctrine, as modified by Boll weevil and its progeny after DM-14,
holds that a constitutional delegation question arises only if the state or a political subdivision
purports to grant a private entity “a public duty and the discretion to set public policy, promulgate
rules to achieve that policy, or ascertain conditions upon which existing laws will apply.” FMProps.
Operating Co., 22 S.W.3d at 880. Assuming that the district is not attempting to contract away its
authority to choose to participate in the federal programs, a school district’s contract with a food L
service management company does not confer on the company “a public duty and the discretion to
set public policy, promulgate rules to achieve that policy, or ascertain conditions upon which existing
laws will apply.” Id. Therefore, a school district’s food service management contract like you have
described does not implicate the delegation doctrine as modified by BoZZweevil and its progeny, and
the question of its constitutionality does not arise.
We must note however, that a school district’s ability to contract with a food service
management company is still subject to the competitiveness requirement of Education Code section
44.03 1. That section still requires that a school district award such a contract in the competitive
method listed in subsection 44.03 1(a) that “provides the best value for the district.” TEX. EDUC.
CODEANN. 8 44.03 l(a) (Vernon 2006). The fact that Boll Weevil and its progeny do not require a
school district to contract separately for underlying goods does not alleviate a school district’s
responsibility under section 44.03 1 to award its contracts in a competitive manner.
The Honorab le Rodney Ellis - Page 5 (GA-0500)
SUMMARY
School districts participating in federal school nutrition
programs may contract with food service management companies,
which manage the district’s food service operations in one or more of
the district’s schools, so long as the district adheres to federal and
state regulations controlling such contracts. School district contract
purchases, whether for goods or services, are governed by Education
Code section 44.031, which does not require a school district
contracting with a company for the company’s services to contract
separately for the underlying goods a company may use in providing r
its services. Further, the delegation doctrine as modified in BoZZ
Weevil and its progeny does not require a school district to contract
separately for underlying goods. Thus, when a school district
contracts competitively with a food service management company .
that merely permits or requires the company to provide food as &part
of its services, a school district is not violating a statutory duty or
delegating a governmental function under state law.
eneral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128604/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 4,2006
Mr. Carl Reynolds Opinion No. GA-0491
Administrative Director
Office of Court Administration Re: Whether a district clerk must collect tiling
Post Office Box 12066 fees under both section 133.15 1 and section
Austin, Texas 7871 l-2066 133.152 of the Texas Local Government Code
(RQ-0497-GA)
Dear Mr. Reynolds:
You ask whether a district clerk must collect filing fees under both section 133 ,151 and
section 133.152 ofthe Local Government Code.’
Section 133.15 1, adopted in 2003 and titled “Consolidated Civil Fee on Filing a Civil Suit
in District Court,” provides, in relevant part:
In addition to each fee collected under Section 51.3 17(b)(,l),
Government Code, the clerk of a district court shall collect the
following fees on the filing of any civil suit:
(1) $45 for family law cases and proceedings as defined by
Section 25.0002, Government Code; and
(2) $50 for any case other than a case described by
Subdivision (1).
TEx. LOC. GOV’TCODE ANN. 5 133.151(a) (Vernon Supp. 2006). Section 133.152, also adopted in
2003 and titled “Additional Filing Fees for Certain Actions and Proceedings in District Court for
Basic Civil Legal Services for Indigents,” provides, in relevant part:
In addition to other fees authorized or required by law, the
clerk of a district court shall collect the following fees on the filing
[of] any civil action or proceeding requiring a filing fee, including an
‘Letter from Mr. Carl Reynolds, Administrative Director, Oftice of Court Administration, to Honorable Greg
Abbott, Attorney General of Texas (May 24, 2006) (on tile with the Opinion Committee, also available af
hnp://~~.oag.state.tx.us) [hereinafter Request Letter].
Mr. Carl Reynolds - Page 2 (GA-0491)
appeal, and on the filing of any counterclaim, cross-action,
intervention, interpleader, or third-party action requiring a tiling fee:
(1) $5 in family law cases and proceedings as defined by
Section 25.0002, Government Code; and
(2) $10 in any case other than a case described by
Subdivision (1).
Id. 3 133.152(a).
You indicate that the fees set forth in section 133.151 were not new fees, but represent
“consolidated fees that had been contained in former Sections 51.701 and 51.941 of the
Government Code. The amount of this consolidated fee equals the sum of the two old fees.”
Request Letter, supra note 1, at 1. On the other hand, the fee established by section 133.152 is a new
fee. See id. You note that “many district clerks are disregarding the plain wording of Section
133.152 at the direction of the Office of the Comptroller of Public Accounts. Rather than
charging the additional fee when~ a suit is initially tiled, many district clerks are charging only the
consolidated fee.” Id, at 2. Your question is “whether district clerks should collect the additional
fee called for by Section 133.152 upon the initial filing of a lawsuit.” Id.
In a brief submitted to this office, the Comptroller asserts that the collection of fees under
both sections
was and is entirely inconsistent with the stated purpose of Chapter
133 (to “consolidate and standardize”). It was and is also inconsistent
with the caption of House Bill 2424, which reads “relating to
technical changes to taxes and fees administered by the comptroller;
providing for [sic] penalties.” And, it was and is inconsistent with the
Fiscal Note for House Bill 2424, provided to the Legislature by the
Legislative Budget Board, indicating no new revenue from the
legislation.2
The arguments made by the Comptroller might be tenable if sections 133.151 and 133.152
had been enacted in separate bills. Both sections were, however, adopted as part of House Bill 2424.
See Act of June 1,2003,78th Leg., R.S., ch. 209,2003 Tex. Gen. Laws 979,997. The provisions
appear sequentially as part of section 62(a) of House Bill 2424. Each provision is set forth in its
entirety in the bill. See TEX. CONST. art. III, 5 35 (regarding subjects and titles of bills). While the
caption of section 133.151 does indeed refer to a “consolidated civil fee,” the caption of section
133.152 refers to “additional filing fees.” Furthermore, section 133.152 begins with language that
2Brief from Timothy Mashbum, General Counsel, O&e of the Comptroller of Public Accounts, to Nancy S.
Fuller, Chair, Opinion Committee, Office of the Attorney General of Texas, at 2 (July 7,2006).
Mr. Carl Reynolds - Page 3 (GA-0491)
is unmistakably clear: “In addition to other fees authorized or required by law. .” TEX. LOC.
GOV’T CODEANN. 5 133.152(a) (Vernon Supp. 2006) (emphasis added).
The plain language of House Bill 2424 indicates beyond peradventnre that the legislature
intended that the fees established in both sections 133.15 1 and 133.152 be collected by a district
clerk. It is well settled that a court, and by extension, this office, construes a statute by looking to
the plain meaning of the statute’s language. Fitzgerald v. Advanced Spine Fixation Sys.,, Inc.,
996 S.W.2d 864, 865-66 (Tex. 1999). Words and phrases must be read in context and construed
according to the rules of grammar and common usage. TEX. GOV’T CODE ANN. 5 3 11.Ol 1(a)
(Vernon 2005). The application of the plain language rule compels the conclusion that fees must be.
~. collected under both of the statutes at issue here.
We conclude that a district clerk must collect filing fees under both section 133.15 1 and
section 133.152 of the Local Government Code.
Mr. Carl Reynolds - Page 4 (GA-0491)
SUMMARY
A district clerk must collect tiling fees under both section
133.151 and section 133.152 ofthe Local Government Code.
Yours very truly,
Attom Meneral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289063/ | CLD-230 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2074
___________
IN RE: GNANA M. CHINNIAH
and SUGANTHINI CHINNIAH,
Petitioners
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
June 7, 2018
Before: CHAGARES, GREENAWAY, JR. and FUENTES, Circuit Judges
(Opinion filed: June 27, 2018)
_________
OPINION *
_________
PER CURIAM
Gnana and Suganthini Chinniah have filed a document with this Court titled
“petition for extraordinary relief/exercise of supervisory jurisdiction,” which we treat for
docketing purposes as a petition for a writ of mandamus. We will deny the petition.
I.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
The Chinniahs’ petition is partially related to their previous litigation in the United
States District Court for the Middle District of Pennsylvania and in this Court. In 2008,
the Chinniahs sued East Pennsboro Township and others raising claims of differential
treatment on the basis of their ethnicity and religion. The Chinniahs lost following a jury
trial at which they were represented by counsel, and we affirmed on their pro se appeal.
See Chinniah v. E. Pennsboro Twp., 602 F. App’x 558 (3d Cir. 2015). The Chinniahs
later filed a motion under Fed. R. Civ. P. 60(b) seeking relief on the basis of, inter alia,
allegedly improper contacts between District Court staff and the jury. The District Court
denied the motion, and we again affirmed. See Chinniah v. Twp. of E. Pennsboro, 639 F.
App’x 89 (3d Cir. 2015).
Shortly before our ruling, the Chinniahs filed a second lawsuit against the
Township and others raising claims allegedly arising from their prior suit. The District
Court dismissed their complaint, and the Chinniahs’ appeal from that ruling is pending at
C.A. No. 17-3375. The Chinniahs also filed two prior mandamus petitions with this
Court seeking relief (including the District Judge’s disqualification) on the basis of the
same allegedly improper jury contacts. We denied those petitions. See In re Chinniah,
698 F. App’x 58 (3d Cir. 2017); In re Chinniah, 670 F. App’x 59 (3d Cir. 2016).
Presently before the Court is the Chinniahs’ “petition for extraordinary relief/
exercise of supervisory jurisdiction.” The Chinniahs do not seek relief regarding any
proceeding in the District Court. Nor do they seek relief regarding their pending appeal.
2
Instead, the Chinniahs have attached yet a third complaint against the Township and
others seeking to raise claims that appear to be based in part on the same allegedly
improper jury contacts. The Chinniahs assert that they would like to file this complaint
but do not think that any District Judge of the Middle District of Pennsylvania will treat
them fairly. Thus, they ask us either to adjudicate the substance of their new complaint
ourselves or to assign it to a judge outside the Middle District of Pennsylvania. In the
alternative, they ask that we refer this matter for alternative dispute resolution.
II.
We will deny their requests. We are primarily a court of appellate rather than
original jurisdiction. See 28 U.S.C. §§ 1291, 2106. We do have original jurisdiction
under the All Writs Act to issue extraordinary writs, but we may do so only in aid of
some independent basis for jurisdiction. See 28 U.S.C. § 1651; In re Arunachalam, 812
F.3d 290, 292 (3d Cir. 2016) (per curiam). Thus, we have All Writs jurisdiction over
civil actions that might come within our appellate jurisdiction in the future. See In re
Arunachalam, 812 F.3d at 292. The Chinniahs, however, have neither filed such a civil
action nor identified any other potential basis for us to exercise our All Writs jurisdiction.
Instead, they argue that we can exercise our supervisory authority to grant them
relief even in the absence of an action pending in a District Court. In support, they rely
on Satterfield v. Johnson, 434 F.3d 185, 193 & n.8 (3d Cir. 2006). In that case, however,
we addressed the King’s Bench powers of the Pennsylvania Supreme Court. See id. We
do not have the same powers as a state King’s Bench court. Cf. Abdul-Akbar v.
3
McKelvie, 239 F.3d 307, 316 (3d Cir. 2001) (en banc). We do have inherent supervisory
powers, which we have exercised in a variety of contexts and usually to prescribe rules of
practice or procedure. See, e.g., United States v. Moreno, 809 F.3d 766, 780 (3d Cir.
2016) (summarizing supervisory authority); United States v. Wecht, 484 F.3d 194, 204-
05 (3d Cir. 2007) (same). But we do not appear to have exercised supervisory powers
over a private dispute in the absence of an independent basis for jurisdiction triggered by
an appeal or other proceeding relating to an action brought in a District Court.
In any event, even if we had the authority to order the relief that the Chinniahs
request, we would decline to do so. We will not adjudicate their claims on the merits in
the first instance. Nor have the Chinniahs presented any basis for us to assign their
unfiled complaint to a District Judge outside the Middle District of Pennsylvania or refer
this non-extant matter for alternative resolution. The Chinniahs have offered nothing but
their bald assertion that they cannot receive a fair hearing before any District Judge in the
Middle District of Pennsylvania. Indeed, as noted above, we previously denied their
requests to disqualify the same District Judge who presided over their first two actions.
We express no opinion on that issue insofar as it may relate to the Chinniahs’ pending
appeal. For present purposes, however, the Chinniahs have shown no reason to believe
that they cannot receive a fair hearing in the Middle District of Pennsylvania.
The Chinniahs remain free—subject to all applicable rules, including Fed. R. Civ.
P. 11(b) and (a) and the rules governing venue—to file their third complaint in an
appropriate District Court. In so noting, we neither affirmatively suggest that they do so
4
nor express any opinion on the merits of their complaint. We caution the Chinniahs,
however, against advancing claims that already have been rejected.
III.
For these reasons, we will deny the petition.
5 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4143344/ | ..; - ._.
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oast at t&r enaraf, elratloa. Allen VI* a35bOF, lie Tex. se, 10
S. w. (84) &, Oplaloa Q-WB-A by thi8 deprrtcw&
Eoaorable Bud Martin, pnur S
k oountp attorney is olooted for 0 term 0r two
yrrar~ only. -Sootloa Zl, Artlalo 8, Conetltutlon oi Taxae.
Err Saaelag~e term Of ofiio4 a8 00uat ottormy
oxplro& two pare otter January 1, 1939. ArtI alo 119SBa,
Vamon~e Aaaotatod Civil Statut6er X0 my, however, ooa-
time to perform tho dutlos of suah offloo until his euooees
8OZ io OhOted al OpFOiattd all6 QUdlifidd. ~eotlon 1’1 of
Artlolr 16 or tho Coactitotlon of Tvrae~ hrtlolcr 10, Revised
Clvll Statutes oi Teixee.
Artiolo 8365, RovlWl Civil Statutor oi Texoe wfth
rvepeat to ttis power of the oommlsoioasre* oollrt to 411 va-
aanaloo ti oertoin oouaty otriora, providesi
Wm oourt aball have poser to fill vaoaaoloe
in the 0rti0e ora * *‘* oounty attomty * 6 *
Suah vooonalee shall be illlsb by a majority vota
of the wabtre of oaid eowt, prorent sad votlz&
aad tht ttret Oho8en eball hold orrlor twit11 the
next genarsl olootioa.*
mart tho e00tm0 ot the oasoe of Stat4 va* taooh,
64 Tax. 4fx?~ Tola VI xlepper 198 E. WCWilt and D4nloon vo.
state, 61 5, W, (&I[ 1010, tl le 0~ oplnloa that t&rn UPS a
vosrnoy in tbe oft100 of oouaty attorn of tlpeoob& Ooanty
on January 1, 1961, rltb Mr. Saarlng t 1 0 lnou&orif ooatiau-
1% to pertorm the duties of the ofdo. la virtw 0) SrotJoa
19 oi Artfole 16 of the Coastltutlon ad Artlele 16 of the
Statutes.
In the Cook@ oaeo ltwm hold Watt a vaosnor oen br
onatod by the tldotloa oi on6 allSlble to hold thm ofiioe,
end his iallure to quelli? has bma lxprwisly6sold~U.~ Por-
tal!&&& to an oiiloor holdfna; over, the Courts er%bc *the right
Bononblr, Bud Xertla, pago S
of the orfloer +bo thou hoi over 18 br euftwanoe, rothtr
than smla any latrlaelo title to the Qrr1oe.-
Tha oeee of Tamvu* Hopper lavo2vod e trot lltuatloa
w!lwe 8 o o ua tyo o r a d8o lo
wo aeonor tlk o tmd
ettha @ulwal
llootloll. The ootwt sold:
9 * l * Tbr * rgw4ln~ uoetlon to bo dr-
~tcrralned
irt Woe appo22ent 05% Ptied to hold over
for another tre year*, OTwoe there 8 vrotaoy in
the orfloo or oouatyo~alomr for prrolaot
l&l* S?
"Our aplaten L thot thorn wee 8 veoanoy Sn
: tba orrltmof oouaty otmale5lomr for that prrohot
within the mtanlag of wtlolo E&40, Revleod Stator
tie e&we quoted, of the *xplxatlon or up 116x&** . .
fd two ymre~ rrrvloo, by xwaeon of the r eilure
to ,rleot 4 ooaalrrlono~ for that proolnot at the
goarrrllleotion in aal& N think ~Shlmvlw cot
oorb with tto eottled 02iey oi our etnte Con-
etltutloa raetrietlag t ii8 duration at th* tame
at o?Pior, es provldeb in the ,ertlolee of the Cow
etltutioa.anA statate quote& A hold!n& twwd the
two ymrs would be b ruSemum, ‘rather than tzloa,
say latrlxwle tltlo k the otflm The wetlon ha@
fzw ueat2 boa the sub oat oi j&o162 Leetigaticm,
end\oe. &*a oosrelos i!e dkyraonnt et tQigloa in
otbtr jurl8diotlono. A rwleu OS tile v8tlooe ho2d-
-8 and tb rm*oIII &v*lr uould k ot llttlr’veku.
Wo are of the opl&x~ that, rhU0 the vo
reseated without em’ qwklify$Bg test %~~~i""
& es ?btSoSo our oourte ior 6eolsion tJ4 eoonr in
~thle et&a lm eov+tal o8eee hsto l e~tbllrbed rin,
olplee that tlx the rule of oonrtzwtiao end %ttr-
~~~~:~tll~~~o~r~:~~~~~~~~:~~~
oi this eta&t, already reiarnd to and quoted, w
rmw to the 08808 of s3a40l; tr fork, fi hx. C1vl.l
App. 693, 8d 8, We 85 saw oaeo ~oertltlad to 0upmw
Court on orrtltloata oi dirreemt on4 rfthawl 99 Te&
wi5, 8U 8, Y. Uss)~ stat. ex awl* mvrr 1. 8otlsa*
.- _
7
Honorable Bud h?artin, page 4
64 TOX. 40. 10 Se IF. 302; Rlokford v. Cocke. 64
Tax. 486 faobinson v. Stite ex ml. Eubank, - Zf3
S, w. 56 B, ’ + +*
In Denlson *a* State, 0ugre, it warndoolureda
“The 1sngua~s’If rejected, mid ofiloe shall
imaediatsl bsoo%8 vaoant, and the governor rhall,
without de 1 sy, mke rurtbar aominstions, until 8
oonflrllotlca takes plsoe,* olearly and by neoeassry
lnpllostlon denim to a nomIneo, who? oonilrmtlon
hos bsen rajeotod by the Sjenats, any: right what-
ever to oooupy the offloe or to dIaahrrr$+, after
such rojsotlon, my Of’the dutlos thereof.
“But, EpFdlWlt oontcnds thio E:roVfelon of the
Conetitution does not ap;lly b thS instant oam be-.
oaum there was In 0ontemplatIon of law, no *v’ao-
oxtoy* for the raeaon that th8 Inoutxbent of suoh of-
rlao, under ertiole 16, seotlon 19, of the oonatltu-
tlon, and artlole 16, R. 8.. hold@ over~~tI$O;~
moobay 18 eppolnted and quallrler,
fg.yon s tern of ottfoe expired ox Pebm& 18,
Them 16 ooasidorabla oonfliat of deofslon
in tie varloue state8 a@ to rhethsr the axplretlon
ot axi Inou?3bsat9e tern of oftioe 0rast.m a vaohnoy
in the orfit!* in question. The holdlngr in the oar-
four oourtr on thir queetfon raat In lar 0 1psamre
upon the wording or the partlouler Const f tutlone
and~atatutss Involved. .%e 46 Cow. 3. 969 and oriaes
olted; 22 Rawle C. L. 558; Annotations In 4& L. RI A.
(N. 8.) 1eoe. The guestion, however, la this rtats
16 foreoloaed. There born been turnlbhed us a oop~
ot en opinion by Attorney Oeneral B. 3. Looasy giv-
en to Hon. Jams Z. Fergueon, whlls Governor, on
irobruery 10, 1919, on IQots slmost ldantioel with
those of the ease fit bar, whfmdn, in an .sble end
sxtanuiva oonslfieratlon of this question, the Govar-
nor war advieed that upon the explrotion ol the tsra
or en iqqoIntlv0 oftloe, for the purposcfi ot nczilzq
the lnowbont’s auooO88or therein, a vaoenoy e xlated
within the mcsenlng or aaatlon 12 0r rrt?cle 4 or the
tioaorable Ml ldertln,~;ogs 5
aonstitution. 888 t&8. Atty. %A. 1916-lul6, pe
Thl8 ocnaltuabon ia oloarlp rutalned by the
,“k oi Ton vc Xleppor (Tax. Oiv. kp ) 198 3.
we Pel (writ ref.)) Euddox vm Tork, EP’¶‘.%a OirU,
hpp. a%%, 64 9. II. %I %%I Id., 96 5%~. t9S, 66 6.
W. llss; ztitr;to
ve Oatha,
84 Tax. 48, 19 SL,&30%.
308 4100, 46 0. Jt 960~ Zh ra rdviaory
to bvstxor, 611 PIa+ 434; 6fZ S4h 863e ,M OE. R* A.
abf (tie E.]~-066; Ht&8 Vt rhOOh&) 168 x0. 66, 14 % VI
lasf Stats v. willima 83% Rot %68( &%l 8. ICe64,
19dan. CQS, 1006. Thlr qu88tioq wan oono~uaIvcl~y
dl8pcwd of wo think ir? tt!Q KlJ;~cr cd@, aad ~8
prataralt f-her dl8?tm8Icrnat it,h@re. * * !*
It le our O&OA gtiat the &tbbmpt~ cilestlenbf an
iaatiffiblo permon.to an offioe ia: ctrlotly enalr&r to th8 sb-
88noa of an &5OtiOA --*Iti 8h8 'PONVI* t%OpWr tyi80,end to
tto prinolp i QB invoked in tis DshLon oa8* a8 well a6 th5 a00k0
oa8s, touOhlnQ tha qw8tiOn OC a vaoanoy 1A orrioe.
At .reId by the Eugrame Oowt -in tke &ok8 oa8bt ‘Thf8
view looorde with tba rettlod yolioy OS our Btote Constitution,
napeotiag t be 4urat10n OP thm term8 or dfio*.*
It ir thimiom the opinion Of tblrr dapertzent that.
there oxlrts'rrtthI8 gin8 8 *aowoy in th8 oWlam or oountf at-
tOl'A*r Of Llgraoab QOuntr, uithln th? &mrvi8V Of ht-tisle ZS!%
whioh my k Wli4 b$ appolntreunt br the Oo~&8si~+8t
oou&
or the eounty,.pmwi.nt to‘tia8pravloions or suoh rtatr?ta. we
&n8h!b,$6%~ uoAtind0 t0 ~EfOFOI bhttdtlbi88Oi the Offi OatiL
th. rpgol:h6ant 16,a6&6 6Z4 CM eypOint6. ha8 qoellilad iortb
OiriOOe
YOGtm very tray
FIRST ASSISTANT
ATTORKEY GENERAL | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143352/ | i
OFFICE OC THE AlTORNEY QRNRRAL OF TRXAR
AUSTIN
Honorable Ohm100 T. Bmiator, Pago 9
l(e) Ifth e telationrhlp by lfflnlty
b etween Reamor,o n6the Ocuaty Jude8 lleo t
oomea +itbin the reoond eegre0 olnreifiootion,
-would Lt be legal for the ~noO8iIlg oor~oo;oO-
ld o o uroottng
t a athe lb o o llo
o fe
tbr ia o o m-
ing ooonty *as,, oftu alMry 1, lB4l to
lppoint n00000 000nty oiorl, 00a 00016 40
le@ll ltrvo br ruoh lppolatmentt
lInlrpl0m~ th0 fO0tO bOie00t to thr
lbuo rltuatlorr, tho Ocurt~ Olrrk OS Uavamo
Cous$~ -0 rrolm0te6 %,ntb8 uovrbor ll*otion
Sor 8 two yeu tom be@nlR( J- 1 1QU.
A few 4 .~ Jtu
8 the lo tr b er
lleotloa Ch.
Ocunt~ (IletR ah& The pnroat 0oBai.~ienerl’
oourt then m8t uk4 mea a tonpetorf appelat-
aa of th0 brotr40r of th8 e00008oe 00008
0lmk, ettootire until Jomarl 1, 194l. &I
hluuy 1 1941, uhrn the now oam8iaolo8uo'
o c ur to ? Luutll Qo ua t~
i8 fo m.6,mo w lmr 8
till then appoint loaeone oouatt01erR tot the
two foot tern bogianl~ on thet bte.
t&ale 480 lo* l arty oaaoll to appel8t tio&t?
&tome7 u&me wife ~80 the tlrmt aoarla W
eenoamgulni~ to the wite ot the mayor.
‘SB oo~ootlon tith tb seaowl quootlea,
Attiolo 488 Peuo Pw181 Qode forbiarthe et-
?lololrSnolu6e6withiD Artiole 490 Texu Penal
Oo de fr o l
8pproviqg -7 8ooouat or &wily or
luth e r irtheiy6tula g of a ny
wa r ma ort 0-u
nooeoom7 for the oomlr8lonora oourt to ap-
ptue the pay8ont of laluios to oftioialr,
Inoludln(lthe Gount~ Olorl, aad it $0 thm
- pnetloe in tUr oouatp for the Qountr Su4ge
to r1(laall l8luy OtmOk&@
. ’
llewrable Q&r108 T. Banirtor, Page J
Art~oler430 Ma 4x3, vezllolt'8 Aaliotat84 PeMl Oodo,
red am Sollowr:
ltt. 488. The LahkbMilon8
ret totth ia
UYr~~rhrll4p~torad~arlnbothrQM~t,
I4outobast
6elotnot speeketor tho aouoe a
Rlpre80atOtL+oO, dls00d 000m%8o%O*O?O, h0d
or the deputnent8 of tb Nat0 gomtuo88 Ju4#e@
mm4irrkroof~~~lBol*ar~ua~o
oot&bu~ by u UMot tb Mthotrt~ of amy
gollotal leu or thlo 8te0, mubum or
or spool8l.
tha Leglmlatute,-0, ou8%08L088te, t-us,
al4uaenos4~oBbor8of uhoolbouaootima?-
potato4 em00 004 tOwi8 pibllo rob001 tntoteoO,
oCtloer8 and mboto of boH0 Of m08OgOFO
Of t&O
a ta te
Ua ~v.+ne~ & t8e
o f it0lwuu b tM o h o *,
a ll6
or the +etsour 1 tOt0 lewOtio00l ia0tltutloao,
rad of the votlouoIt080 l loonowaary LaotMu-
tt000, Ua of the ealt0ntlOtlb0~ tU0 OmMm-
tion ohall ut k & l4 to lulu~o rm *hoop8vw
tion ua oiioot of two law '01 puwa Saolu404
wlthln lta geaecal pro+l@lOah
___,_._
__.._.-.-
-. --. _ .,..
I
Honorable Gharloo T. Banlmter,Pyo 4
In Tyler
Tap Rsllrod CO. & Dau@arr ~8. Ovortoa,
1 *pp. of App.810, moo. bSS, 4S4, 486, the mothodoof
ct.
oo8prtIn# the d.gr.0. of OoW~~laIty WON 8t8to6 by the
oourt aD followo:
*In oorprtlag thm eagroo o? 1Inoal eoa-
8anguInIttldoting botwoa two per80118 wwy
gonemtioa IIItho direot oouroo of red&on-
8hIp botwom tho tvo put100 WI00 a &ogre*,
&ad the rule lo tho ~8. by the oIrI1 and oom-
mum 18% Thelceo of oomwting degree8 of
oollator81 OOIl8Nl#jUItit~
at tho omm am& br
lev i8 to dimoover tho oomson u)-
the OUSOII
oootor, to bogla with him to rookon bowarud.,
oad the degreethe two porooae, or tho @ore
ruoto Of thon, 10 a10toatrm the ~OSStOt,
I8 the degree or )rlndr84auboIrtIag between
thn. For inotanoo, two brotlkw8 u8 robto
to 8o.h othor.1~ th8 flrot do o. booauoo
fror th* ?&her oaah on0 of t F ta 18 one de-
tF-- Aa UltO18 8ne nophw uo rolatod to
la o hother In tho reoond Qogno, beeawe the
MphW i8 t@fOeOgXVO8 diSt4Ut fPOm th8 OOUOO
uaoootor, *ad the unelo is lxtonded to the
trOtO8t dogro. of oollatetal rol~tlon8up.'
-8 bpU8Unt hi OOntiuCU8l hold thd fIrot
oouoU&o are tol&toa br oonruyuJnit7 in tL lo o o o deg
d r W)
the dopwtmeat hr fuPthot bole that dogree8 of af?iaIt~ aro
008putoutla thr WI ny 88~~+080 of e*awagulnI*~. That ir
t0 84 Of th9 Ui?O Stati ill t& W
thmt S'otitiOIbS 68 eo
or at?blt~ to the ho0me a8 * uo rel8wd to the Se
b$ 00~8Ul@l&t.tl.
Uneor th earpotin lt8tuto of thlr Itate no offloot
et the 6tato or lmy 8unIoIp.l euWIrl*Ion theroo?, aor ry
offloor or 8oduu of uy State or munioipal Board, oh11 lp-
point, or rots ror, or oonilm the appointment of any oifloo
o? noltamnt of •~ p8rron rolded wIthin oertab 8pOOii%e(l
6ofn88 to him or to my other lombor of moh baud whoa the
eompon8ationof aroh por8on S8 to be pnid out of p&lo nrndo
or fooe of off100 of lnykiod vht8oorer. ma8iOU Of IlOWtiW
by trodIsy,md &pproral of tho &ooounto or tho Qrrw%agof nr-
r8nt8 to w the oo~pon8~tIon of any IaolIglble offSoar or
porron, us ~100adt with. The rtatute pro+Idor 8100 for
tho puaimhm8nt or any poroon who tIol8t.8 any of its prorlrlanr.
HonorrbloCharlea T. BmI8tcr, P-8 6
Thlr eeputmont hold on Soptombor 15, 19se In an
opinionwritten by Honorable Boott 4&lnoo, a&Cre~rod to Ron-
or&lo L. L. bbUt8, Oounty Auditor, Ibrtohln8on County Tax-
thot ‘there Im no ~Irtlnotlonto be dravn betveon do
gff-blood kin 8nd the full-bloodkin under tha anti-nopotla
lu, and the hrlf-blood rel~tIonohIpwould be within tht 8-o
d*groo am that of tht fun-bi00d.~
%hon tho rolatlon8hIpby oqnoangulnity (blooU) IO
dotmined thur I8 no dlffloulty In urlrlng at the rslatlon-
.hIp bar .f&Ity (urrlago) broauso l uuun'r hU8bOBd wowl&
bo rolatea wIthIn tha oauo bogrto by affinity that the womn
la horoolf rrlatadby oonoangulnlty, mnd rice veraa.*
Underth elbwo rtatod faotr tho acumtf &tdgo lloot
m0 Hr. llrnror8ro rol~tod by lrflnlty In the looond begr80, a
eepeo oalng wlthln the do~o renttonedltatuto8 prohIbItlag
tho lppoint~ont, *to.
Thorofore you uo rsopootfullyaevi00d thmt It lo
the opinion of thii doput8oat that it would k 8 viol8tion of
tha nopotlom otatutoo for the oouIo8Ioaoro~ oourt to lppolnt
Hr. hn8a to fill the offloe a? ocunty olerk.
Vlth roferonoo to your 88ooa& quootlon It womld bo
Irutorial whothor or not the inooming County Judge no &moat
or roruree to rot In the lppoInt8ont of Mr. -808 by the oom-
liSOiOnOr8' 0~8% Thoroforo, your roooa& quootlon is nopoot-
fully mamfuod In the negmtlro.
TruotIag thmt tho Songoiag filly mnoworoyour ln-
q u lty,vo le
87
hraoll v;11iu*
*wl#tMt
APPROVEDJAN 10, lg4=
AV:RI) | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128906/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 19,2004
The Honorable Mike Stafford Opinion No. GA-0189
Harris County Attorney
1019 Congress, 15th Floor Re: Constable’s authority in the county outside of
Houston, Texas 77002-1700 the constable’s own precinct; permissible scope of
interlocal agreements concerning law enforcement
(RQ-0136-GA)
Dear Mr. Stafford:
You ask generally about a constable’s law enforcement authority within the constable’s
county outside of the constable’s own precinct.’ You also ask whether an interlocal agreement
between counties may authorize one county to provide law enforcement services on a toll highway
that runs through the county into another county. See Stafford Brief, supra note 1, at 1.
I. Constable’s Authori@ in the Countv Outside of the Constable’s Own Precinct
You ask broadly about the significance of constable precinct boundaries to a constable’s
authority, particularly a constable’s law enforcement authority. See id. You state that
“[tlraditionally, constables have respected boundaries and not crossed precinct lines to ‘patrol and
police’ another constable’s precinct unless circumstances required it.” Id. at 4. Specifically, you
ask:
May a constable, pursuant to an interlocal agreement between the
county and the school district, provide police services to a school
district that is within the same county, where a portion of the school
district lies outside his precinct but within the geographic boundaries
of a neighboring constable’s precinct? Would it matter if the
constable who is not providing such services objects to another
constable providing such services within the precinct in which the
objecting constable serves?
Id. at l?
‘SeeBrief&Letter fromHonorableMike Stafford,HarrisCountyAttorney,to HonorableGreg Abbott,Texas
AttorneyGeneral(Nov. 20,2003)(on tilewithOpinionCommittee;Letteralso availableof http://www.oag.state.tx.us)
[hereinafterStaffordBrief andRequestLetter].
‘You do not ask abouta county’sand a schooldistrict’sauthorityto enterintoan interlocallaw enfmcement
agreement.See TEX. EDUC. CODEANN. 5 37.081(a) (V emon 1996)(authorizinga schooldistrictto employsecurity
(continued...)
The Honorable Mike Stafford - Page 2 (GA-01 89)
Constables are elected by precinct, and a county may have from one to eight justice of the
peace and constable precincts. See TEX. CONST. art. V, 5 18. Generally, a constable must reside
within the precinct the constable serves. See id. 5 18(c)-(d); see also TEX. ELEC. CODE ANN.
$5 141.001(a)(S) (Vernon Supp. 2003) (eligibility requirements for public office), 141.002(a) (rule
for precinct officers after precinct boundary change or litigation; TEX. LOC. GOV’T CODE ANN.
$5 81.021(a) (Vernon 1999) (change in precinct boundary), 86.001 (incumbent constable’s eligibility
to serve after boundary change).
Local Government Code section 86.021 lists a constable’s general powers and duties:
(a) A constable shall execute and return as provided by law each
process, warrant, and precept that is directed to the constable and is
delivered by a lawful officer. Notices required by Section 24.005,
Property Code, relating to eviction actions are process for purposes
of this section that may be executed by a constable.
(b) A constable may execute any civil or criminal process throughout
the county in which the constable’s precinct is located and in other
locations as provided by the Code of Criminal Procedure or any other
law.
(c) A constable expressly authorized by statute to perform an act or
service, including the service of civil or criminal process, citation,
notice, warrant, subpoena, or writ, may perform the act or service
anywhere in the county in which the constable’s precinct is located.
(d) Regardless ofthe Texas Rules ofCivil Procedure, all civil process
may be served by a constable in the constable’s county or in a county
contiguous to the constable’s county, except that a constable who is
a party to or interested in the outcome of a suit may not serve any
process related to the suit.
(e) The constable shall attend each justice court held in the precinct.
TEX. Lot. GOV’T CODE ANN. 5 86.021 (Vernon 1999). Other constable duties are scattered
throughout the statutes. See, e.g., TEX. AGRK. CODE ANN. 4 71.049(b) (Vernon 1995) (upon
request, a sheriff or a constable shall accompany and assist the Department ofAgriculture to enforce
its notice concerning destruction of nursery products and florist items); TEX FAM. CODE ANN.
5 86.003 (Vernon 2002) (sheriff, constable, or chief of police to provide assistance concerning
temporary order excluding family law respondent from respondent’s residence); TEX. GOV’T CODE
ANN. $62.004 (a) (Vernon 1998) (the district clerk and the sheriff or “any constable of the county’
draws prospective jurors’ names from the jury wheel for a justice or district court); id. 5 62.412(c)
personnelandcommissioned peaceofficerswhosejurisdictionmay
includeall district
property);TEX.GOV’T CODEANN.
$5 791.001.,032(Vernon 1994& Supp.2004) (InterlocalCooperationAct).
The Honorable Mike Stafford - Page 3 (GA-0189)
(a justice of the peace may require a constable to call additional jurors for a justice court); TEX.
PROP. CODE ANN. 55 92.009,93.003 (Vernon 1995 & Supp. 2004) (asheriffor constablemust serve
a writ of reentry issued by the justice court in the precinct where the rental property is located).
For present purposes it is sufficient to note that some constable duties are directly related to
the constable’s precinct. For example, a constable must attend justice court held in the precinct. See
TEX. LOC. GOV’TCODEANN. § 86.021(e) (Vernon 1999). In a forcible entry and detainer action,
“the constable of the precinct” or county sheriff has a duty to put the complainant in possession of
the property under certain circumstances. TEX. R. CIV. P. 740(c). The constable of a precinct where
a fire has occurred may request the state tire marshal to investigate. See TEX. GOV’T CODE ANN.
5 417.007(a)(5) (Vernon 1998). A constable of the precinct in which the office of a political
subdivision’s governing body is located may be required to maintain custody of the key to the box
containing voted ballots in elections concerning the political subdivision. See TEX. ELEC. CODE
ANN. § 66.060(a)(3) (Vernon 2003). While these statutes generally require a constable to perform
a duty within the precinct, other statutes impose duties that a constable may perform outside of the
precinct, most notably a constable’s duty to serve civil and criminal process throughout the county.
See TEX. LOC. GOV’TCODEANN. $86.021(b) (Vernon 1999). Your inquiry, however, focuses on
a constable’s law enforcement authority within the constable’s county but outside ofthe constable’s
precinct.
A constable’s law enforcement authority derives primarily from the constable’s status as a
peace officer. See TEX. CODE GRIM. PROC. ANN. art. 2.12(2) (Vernon Supp. 2004). As a peace
officer, a constable has a duty “to preserve the peace within the officer’s jurisdiction,” with authority
to “use all lawful means” to effect that purpose. Id. art. 2.13(a). Article 2.13(b) describes a peace
offricer’s primary law enforcement duties:
(b) The officer shall:
(1) in every case authorized by the provisions of this Code,
interfere without warrant to prevent or suppress crime;
(2) execute all lawful process issued to the officer by any
magistrate or court;
(3) give notice to some magistrate of all offenses committed
within the offtcer’s jurisdiction, where the offrcer has good reason to
believe there has been a violation of the penal law; and
(4) arrest offenders without warrant in every case where the
off&r is authorized by law, in order that they may be taken before
the proper magistrate or court and be tried.
Id. art. 2.13(b). As peace officers constables have a duty to prevent threatened injuries and death,
see id. arts. 6.01-.07 (Vernon 1977 & Supp. 2004), assist magistrates performing their magistrate
duties, see id. arts. 7.01-.17, and execute arrest warrants, see id. art. 15.16 (Vernon 1977). See
The Honorable Mike Stafford - Page 4 (GA-01 89)
generally Vondy v. Comm’rs Ct. of Uvalde County, 714 S.W.2d 417,421 (Tex. App.-San Antonio
1987, writ ref d n.r.e.); Tex. Att’y Gen. Op. No. K-0413 (2001).
Generally a peace officer’s authority is limited to the officer’s own geographic jurisdiction.
See Tnx. CODE GRIM. PROC. ANN. arts. 2.13(a), 14.03 (Vernon Supp. 2004); Angel v. State, 740
S.W.2d 727,734 (Tex. Crim. App. 1987); Brother v. State, 85 S.W.3d 377,383 (Tex. App.-Fort
Worth 2002, pet. filed); McCain v. State, 995 S.W.2d 229, 234 (Tex. App.-Houston [14th Dist.]
1999, pet. ref d); Dominguez v. State, 924 S.W.2d 950,953 (Tex. App.-El Paso 1996, no pet.).’
Local Government Code section 86.021(c) authorizes a constable to perform all express statutory
duties anywhere within the county in which the constable precinct is located. See TEX. LQC. GOV’T
CODE ANN. § 81.021(c) (Vernon 1999). Relying on the statute’s plain language, this office has
determined that constables may perform law enforcement duties, including traffic law enforcement,
“within their counties outside their respective precincts as well as within them.” Tex. Att’y Gen. Op.
No. JM-761(1987) at 3. Consequently, aconstable’s law enforcement jurisdiction includes not only
the constable’s precinct, but extends to the entire county.
You ask whether a constable is authorized to “police and patrol” in the county outside ofthe
constable’s precinct. Stafford Brief, supra note 1, at 1. Although the Code of Criminal Procedure
does not use those specific terms to describe a peace officer’s authority, the code directs that a
constable may resort to “all lawful means” to maintain the peace. TEX. CODE GRIM. PROC. ANN. art.
2.13(a) (Vernon Supp. 2004). The code largely leaves to the peace officer the determination ofwhat
lawful means are most appropriate to maintain the peace within the officer’s jurisdiction. And, as
we have seen, a constable’s jurisdiction as a peace officer extends throughout the county.
You also ask if a constable may engage in law enforcement in another precinct of the county
if the constable of that precinct objects. See Stafford Brief, supra note 1, at 1. A constable’s
countywide authority, whether to serve process or to maintain the peace, is not conditioned on other
precinct constables’ consent. When a constable exercises such authority in the county outside ofthe
constable’s precinct, it does not diminish or impinge on the other county constables’ authority.
As a practical matter a constable exercising law enforcement duties will naturally focus on
the precinct that elected the constable. But a constable’s authority as a peace officer does not end
attheprecinctboundaty. SeeTex. Att’y Gen. Op.Nos. O-3969 (1941) at 3-4,0-1565 (1939) at 4-5.
Consequently, the constable in the example you pose would have the statutory authority to patrol and
perform other peace officer duties on school district property within the constable’s county, even
though a portion of the property lies partially outside the constable’s precinct.
II. Interlocal Law Enforcement Aereement
Additionally, you ask:
May two adjoining counties enter into an interlocal agreement for one
ofthe counties to provide law enforcement services on a toll road that
‘A peaceoficerhas limitedauthority tom&e warrantlessarrestsoutsideof theofficer’sjurisdiction.SeeTEX.
CODECFXM. PROC.ANN. art. 14.03(d),(g) (Vernon Supp.2004).
The Honorable Mike Stafford - Page 5 (GA-0189)
transgresses both counties’ geographic boundaries? If so, must the
sheriff or other law enforcement official of the county receiving the
services from the providing county agree to the provision of services
by the other county?
Stafford Brief, supra note 1, at 1,7. You explain that under the agreement you have in mind, deputy
sheriffs from one county would patrol the road on both sides of the county line and provide
additional traffic law enforcement in the adjacent county. See id. at 7.
The Interlocal Cooperation Act permits local governments, including counties, to contract
to provide certain governmental services. See TEX. GOV’TCODEANN. 55 791.001-,032 (Vernon
1994 & Supp. 2004) (chapter 791). Under the Act, “police protection and detention services” are
governmental services that may be the subject of an interlocal agreement. Id. 4 791.003(3)(A),
.Ol l(a) (Vernon Supp. 2004). An interlocal contract must be authorized by the governing body of
each party to the contract. See id. $791 .Ol l(d)(l). A county’s governing body is its commissioners
court. See City of San Antonio v. City of Boerne, 111 S.W.3d 22,27 (Tex. 2003).
Local Government Code chapter 362 also authorizes counties and other authorities to
contract for cooperative law enforcement:
(b) A county, municipality, or joint airport may, by resolution or
order of its goveming body, enter into an agreement with a
neighboring municipality, joint airport, or contiguous county to form
a mutual aid law enforcement task force to cooperate in criminal
investigations and law enforcement. Peace officers employed by
counties, municipalities, or joint airports covered by the agreement
have only the additional investigative authority throughout the region
as set forth in the agreement. The agreement must provide for the
compensation of peace offricers involved in the activities of the task
force.
TEX. Lot. GOV’TCODEANN. 5 362.002(b) (Vernon 1999). Under section 362.002(b), like the
Interlocal Cooperation Act, the governing body must authorize any agreement.
As you acknowledge, the sheriff does not have the authority to contract for the county under
either statutory provision. See Stafford Brief, supra note 1, at 7; see also Tex. Att’y Gen. Op. No.
X-0532 (2002) at 2 (Interlocal Cooperation Act), Tex. Att’y Gen. Op. No. JC-0263 (2000) at 3
(Local Government Code chapter 362). Rather, you ask whether an interlocal agreement depends
on the sheriffs consent “to allow another county’s sheriffs deputies to patrol within his own
jurisdiction before a commissioners court executes such an agreement.” Request Letter, supra note
1,atS.
The Interlocal Cooperation Act authorizes one local government to contract with another to
perform only “governmental functions and services . . that each party to the contract is authorized
to perform individually.” TEX. GOV’TCODEANN. 4 791.01 l(a), (c)(2) (Vernon Supp. 2004). As
this office has observed on a number of occasions, the Interlocal Cooperation Act “does not extend
The Honorable Mike Stafford - Page 6 (GA-01 89)
a local government’s criminal law enforcement authority beyond its jurisdiction.” Tex. Att’y Gen.
Op. No. GA-0150 (2004) at 2; accordTex. Att’y Gen. Op. Nos. JC-0530 (2002) at 5-6, E-0219
(2000) at 5. Consequently, the Interlocal Cooperation Act does not authorize one county to exercise
its law enforcement authority over a portion of a road located in another county even if the sheriffs
of both counties agree.
On the other hand, the Interlocal Cooperation Act permits an agreement whereby the peace
officers of one local government serve as law enforcement officers of another local government that
has law enforcement authority. See Tex. Att’y Gen. Op. No. GA-0150 (2004) at 2. Under such an
agreement, the officers providing law enforcement services are in fact officers of the local
government receiving the officer’s services. See Tex. Att’y Gen. Op. No. JC-0530 (2002) at 5-6
(city peace officers providing law enforcement services to a drainage district pursuant to interlocal
agreement are in fact drainage district law enforcement officers). In the example you provide, deputy
sheriffs ofone county acting as peace officers in another county under an interlocal agreement would
in fact be officers of the law enforcement authority of the county receiving the officer’s services.
Similarly, section 362.002(b) ofthe Local Government Code authorizes counties to agree that
the deputy sheriffs of one county may engage in law enforcement in the other county. Section
362.003(a) specifies the terms of the arrangement:
While a law enforcement officer regularly employed by one county,
municipality, or joint airport is in the service of another county,
municipality, or joint airport according to this chapter, the officer is
a peace officer of the latter county, municipality, or joint airport and
is under the command of the law enforcement officer who is in charge
in that county, municipality, or joint airport. The offrcer has all the
powers of a regular law enforcement officer of that county,
municipality, or joint airport as fully as if the officer were in the
county, municipality, or joint airport where regularly employed.
TEX. LOC. GOV’T CODE ANN. 5 362.003(a) (Vernon 1999). In other words, when the deputy sheriffs
of one county patrol in another county, they are in fact officers of the latter county and are under the
command of the latter county’s “law enforcement officer who is in charge in that county.” Id.
Both the Interlocal Cooperation Act and chapter 362 of the Local Government Code require
approval of a law enforcement contract by the local government’s governing body, which for a
county is its commissioners court. But a commissioners court does not itself hold independent law
enforcement authority; rather, county law enforcement authority is vested in specific county offices
such as the sheriff and county constables. See TEX. CONST. art. V, $5 18 (constable), 23 (sheriff);
Tex. Att’y Gen. Op. No. H-l 123 (1978) at 2 (commissioners court does not have independent law
enforcement authority). The Interlocal Cooperation Act and chapter 362 of the Local Government
Code do not specifically require a sheriffs approval before counties enter into a law enforcement
agreement.
The Honorable Mike Stafford - Page 7 (GA-0189)
SUMMARY
A constable may perform law enforcement services on
property that extends into another precinct of the county.
A county may not by agreement extend its law enforcement
jurisdiction into another county. Counties may agree for the deputy
sheriffs ofone countyto perform law enforcement services in another
county, but only as officers of the latter county, subject to the
command of the latter county’s law enforcement authorities.
Attomt&neral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
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/4289064/ | NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0320n.06
Case No. 17-4237
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 27, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
RYAN TENNEBAR, ) OHIO
)
Defendant-Appellant. )
)
)
BEFORE: SUTTON, McKEAGUE, and KETHLEDGE, Circuit Judges.
SUTTON, Circuit Judge. Ryan Tennebar appeals his 48-month sentence for obstructing
justice. We affirm.
Tennebar owned and operated Healthcare Essentials, Inc., a company that sold medical
devices. Part of its business involved selling machines manufactured by Kinetic Concepts, Inc.
But Kinetic employed its own salesforce to sell its products; it did not permit other companies to
do so. When Kinetic discovered that several of its machines were missing from customer facilities,
only to resurface with their serial numbers defaced and replaced with Healthcare Essentials labels,
it suspected that Healthcare Essentials stole the machines and resold them under its own label.
Kinetic sued Healthcare Essentials and reported its suspicions to the FBI, which opened a
criminal investigation. In April 2017, agents showed up at Tennebar’s house with a search warrant.
Case No. 17-4237
United States v. Tennebar
They asked Tennebar whether his company kept its records in a storage unit. Tennebar said no.
But as soon as agents began searching his home, Tennebar drove to a hardware store, bought bolt
cutters, broke into the storage unit that housed company records, and removed several boxes of
documents.
That earned him an obstruction of justice charge, to which he pleaded guilty. The district
court sentenced him to 48 months in prison, above the 15- to 21-month range recommended by
the Sentencing Guidelines.
Tennebar complains that his sentence is substantively unreasonable—that it is too long in
short. But district courts have considerable latitude to pick an adequate sentence, and we may
reverse only if the court abused its discretion when applying the relevant statutory factors. Gall v.
United States, 552 U.S. 38, 51 (2007).
No abuse occurred here. To start, Tennebar ignores the district court’s careful
consideration of the statutory factors. The court noted that this was Tennebar’s first felony
conviction. And it acknowledged that it would generally be inclined to impose a within-guidelines
sentence in such circumstances. But a longer sentence was appropriate, it explained, to “promote
respect for the law.” 18 U.S.C. § 3553(a)(2)(A).
That determination was reasonable in view of Tennebar’s “repeated violation of court
orders.” R. 33 at 21. In a separate civil lawsuit between Kinetic and Healthcare Essentials,
Tennebar refused to turn over key documents despite court orders to do so. That earned him three
days in jail for contempt. After he posted bond, Tennebar violated the conditions of his release,
which required him to get approval from his probation officer before leaving his house. His
probation officer gave him permission to get a haircut and visit a bank to get money to pay his
attorney. Instead of doing that, Tennebar visited a different bank and sent $43,000 to his girlfriend
2
Case No. 17-4237
United States v. Tennebar
in Mexico. When the FBI reported the violation, the district court revoked his bond and ordered
him detained.
When the district court gave Tennebar a chance to explain his conduct, moreover, he
refused to accept responsibility. He claimed that he transferred the $43,000 to his girlfriend in
Mexico so that she could meet payroll expenses for his company. But the district court suspected
that Tennebar transferred the money to protect the company from a potential fine or civil judgment.
Tennebar also claimed that he broke into the storage unit to retrieve files for the civil lawsuit, not
to hamper the FBI investigation. But the district court found that explanation implausible because
Tennebar lied about the existence of the storage unit and because he visited the unit as soon as he
realized that the FBI was investigating him. All in all, the district court found that Tennebar would
“prefer playing games instead of facing the consequences of his actions.” Id. at 20. Ample
evidence supports that finding.
The district court considered Tennebar’s arguments for leniency, including his education
and minimal criminal record. It weighed those arguments against Tennebar’s repeated refusal to
follow court orders. And it determined that an above-guidelines sentence would promote respect
for the rule of law. We have no reason to upset that determination, as that is just what an
individualized assessment of the § 3553(a) factors allows. United States v. Sherer, 770 F.3d 407,
413 (6th Cir. 2014).
We affirm.
3 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289072/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30180
Plaintiff-Appellee, D.C. No.
2:14-cr-00134-WFN-1
v.
DOMINGO VALDOVINOS, AKA Junior, MEMORANDUM*
AKA Domingo Valdovinos-Navarro,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted May 18, 2018
Seattle, Washington
Before: BERZON and HURWITZ, Circuit Judges, and DEARIE,** District Judge.
Domingo Valdovinos appeals his conviction, for which he is serving a life
sentence, of Murder in Connection with a Drug Trafficking Offense in violation of
21 U.S.C. § 848(e)(1)(A). He challenges the district court’s exclusion as hearsay
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raymond J. Dearie, United States District Judge for
the Eastern District of New York, sitting by designation.
of the testimony of Jesse Coughlin, proffered as extrinsic evidence of prior
inconsistent statements of government witnesses Melissa Buchheit and Dillon
Casteel. Valdovinos also challenges the denial of his request to instruct the jury on
his asserted defense of duress. We have jurisdiction pursuant to 28 U.S.C. § 1291,
review the evidentiary ruling for abuse of discretion, see United States v. Stinson,
647 F.3d 1196, 1210 (9th Cir. 2011), and review the refusal to instruct on duress de
novo, see United States v. Ibarra-Pino, 657 F.3d 1000, 1003 (9th Cir. 2011). We
affirm.
1. At trial, Buchheit testified that: (i) she talked with Coughlin but not about
the murder, (ii) when accompanying the victim (her boyfriend) to his place of
abduction, she had not been acting in furtherance of any agreement to assist the
defendants, and (iii) Casteel told her that the victim was deceased but furnished no
details of the murder. By contrast, Coughlin would have testified that: (i) Buchheit
conversed with him about the murder at length, (ii) Buchheit told him that, in
ushering the victim to the Knox residence, she was facilitating the conspirators’
plan to “get back at him,” and (iii) Buchheit told him that Casteel gave her a
colorful narrative of the murder including details that differ from his (Casteel’s)
trial account. Portions of Coughlin’s testimony were therefore admissible under
Federal Rule of Evidence 613(b) to impeach Buchheit. See generally Fed R. Evid.
613(b); see also United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir. 1981)
2 16-30180
(“‘A basic rule of evidence provides that prior inconsistent statements may be used
to impeach the credibility of a witness.’”) (quoting United States v. Hale, 422 U.S.
171, 176 (1975)); United States v. Hibler, 463 F.2d 455, 461 (9th Cir. 1972) (“If
the prior statement was oral, and is denied, the proper procedure after laying the
foundation is to put someone on the stand who heard the statement and elicit
testimony that the witness made the statement.”). The district court abused its
discretion by excluding Coughlin’s testimony on hearsay grounds.
We need not address precisely how much of Coughlin’s testimony should
have been received because even if all of it were admitted, the damaging potential
of impeaching Buchheit was at best minimal. Her testimony was peripheral to the
formidable case against Valdovinos, which included three codefendants’ first-hand
accounts and highly incriminating forensic and physical evidence. The evidentiary
error, therefore, was unquestionably harmless. See generally United States v.
Liera, 585 F.3d 1237, 1244 (9th Cir. 2009) (“An error is harmless if it is more
probable than not that the error did not materially affect the verdict.”) (internal
quotation and citation omitted).
2. Although Coughlin’s account of Buchheit’s account of Casteel’s
account of the murder also conflicts with Casteel’s trial testimony, no portion of
Coughlin’s testimony is admissible under Rule 613 to impeach Casteel. A fortiori,
the prior consistent statement of a witness must be that witness’s statement—and
3 16-30180
not what another witness, if believed, reports. To function as impeachment of
Casteel, Buchheit’s out-of-court statements would have to be offered for their
truth. Categorically hearsay, these statements do not satisfy any of the exceptions
and definitions of non-hearsay Valdovinos invokes. See Fed. R. Evid. 801.
3. “In order to make a prima facie showing for a duress defense or a jury
instruction, a defendant must establish: (1) an immediate threat of death or serious
bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3)
lack of a reasonable opportunity to escape the threatened harm.” Ibarra-Pino, 657
F.3d at 1004 (internal quotation and citation omitted). “As a general proposition, a
defendant is entitled to an instruction as to any recognized defense for which there
exists evidence sufficient for a reasonable jury to find in his favor.” Bradley v.
Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002) (internal quotation and citation
omitted). But, even crediting Valdovinos’s cabined claim that he drove the victim
from the place of abduction to the murder site under duress, the district court’s
refusal to instruct on duress was not reversible error because, as counsel
recognized at oral argument, Valdovinos does not, and could not, claim that he
remained under duress during the commission of the murder. See United States v.
Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008) (“Of crucial importance in
any attempt to raise duress as a defense [is] the element[ ] of immediacy”) (internal
quotation and citation omitted). Further, any arguable error in failing to instruct on
4 16-30180
duress was unquestionably harmless here for the same reasons.
AFFIRMED.
5 16-30180 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289078/ | FILED
NOT FOR PUBLICATION
JUN 27 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. KATHLEEN HUGE, No. 16-35250
Plaintiff-Appellant, D.C. No. 2:14-cv-00857-RSM
v.
MEMORANDUM*
THE BOEING COMPANY, a Delaware
Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Argued and Submitted June 12, 2018
Seattle, Washington
Before: D.W. NELSON and WATFORD, Circuit Judges, and PREGERSON,**
District Judge.
J. Kathleen Huge (“Huge”) appeals the district court’s judgment in favor of
The Boeing Company (“Boeing”) on her claims related to Boeing’s withdrawal of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
the Long Beach offer for discrimination under the Americans with Disabilities Act
(“ADA”) and the Washington Law Against Discrimination (“WLAD”). “We
review for clear error the district court’s factual findings in connection with a
bench trial.” United States v. Brobst, 558 F.3d 982, 998 (9th Cir. 2009) (citation
and internal quotation marks omitted). We review de novo questions of law,
Villavicencio v. Sessions, 879 F.3d 941, 945 (9th Cir. 2018) (citation omitted), and
mixed questions of law and fact, Shea Homes, Inc. and Subsidiaries v. Comm’r of
Internal Revenue, 834 F.3d 1061, 1066 (9th Cir. 2016) (citations omitted). We
have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
1. To prove discrimination under the ADA and the WLAD, a plaintiff must
establish, among other things, she suffered an adverse employment action “because
of” her disability. Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 798–99 (9th
Cir. 2017) (citation omitted); Wash. Rev. Code § 49.60.180(1). Huge claims
Boeing withdrew the offer for the Long Beach position because she was on
medical leave (and in the process of completing a medical evaluation), and that
Boeing placed her on medical leave because of her disability. According to Huge,
Boeing withdrew its offer “because of” her disability in violation of the ADA and
the WLAD. Dunlap, 878 F.3d at 798–99; § 49.60.180(1). The record nonetheless
indicates Huge was on medical leave at the time Boeing withdrew its offer, in part,
2
because Huge herself had delayed in bad faith the medical evaluation process.
Huge does not challenge the district court’s finding in this regard, and hence the
line of causation she seeks to establish is not as direct as she claims. Furthermore,
the district court did not clearly err in finding Boeing had a “pressing need” to fill
the Long Beach position. Under the facts here, she failed to establish that Boeing
withdrew the Long Beach offer “because of” her disability in violation of the ADA
and the WLAD. Dunlap, 878 F.3d at 798–99; § 49.60.180(1).1
2. Huge further contends Boeing failed to accommodate her disability in
violation of the ADA and the WLAD when it refused to hold the Long Beach job
open while she completed Boeing’s medical evaluation. However, Huge’s request
was not one for reasonable accommodation as defined under both statutes—she
concedes she did not request any accommodation for her autism with respect to the
Long Beach position. Huge sought, in effect, an accommodation not for her
disability but for her delay in bad faith during the medical evaluation process. This
request to hold the job open cannot be construed as a “reasonable accommodation”
1
Under the WLAD, the plaintiff must prove her disability was a “substantial
factor” in the adverse employment action. Scrivener v. Clark College, 181 Wash.
2d 439, 447 (2014) (en banc) (citation omitted). Under the ADA, there is tension
among the courts as to whether a but-for standard of causation or a “motivating
factor” standard applies. See Mendoza v. The Roman Catholic Archbishop of L.A.,
824 F.3d 1148, 1150 n.1 (9th Cir. 2016) (citation omitted). Huge failed to meet
her burden of proving discrimination regardless of the standard applied.
3
for her disability under the ADA, 42 U.S.C. § 12112(b)(5), or the WLAD, see Doe
v. Boeing Co., 846 P.2d 531, 537 (Wash. 1993) (en banc).
Even assuming her request was one for an accommodation, the district court
found—and she does not challenge on appeal—that she had obstructed the
interactive process in bad faith to build a lawsuit, which, in turn, delayed her
ability to return to work in Renton or to begin work in Long Beach. Huge’s bad
faith, coupled with Boeing’s good faith efforts to engage in the interactive process
and offer reasonable accommodation based on the information it had, extinguished
Boeing’s liability for not providing the accommodation sought. See Zivkovic v. So.
Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (interactive process under
ADA “requires . . . direct communication between the employer and employee to
explore in good faith the possible accommodations” (emphasis added) (citation and
internal quotation marks omitted)); Frisino v. Seattle Sch. Dist. No. 1, 160 Wash.
App. 765, 780 (2011) (same, under WLAD).2
3. The medical evaluation Boeing required of Huge for the Long Beach
position was appropriate. Boeing had “good cause for trying to determine whether
she was able to perform her job,” Yin v. State of Cal., 95 F.3d 864, 868 (9th Cir.
2
We do not mean to suggest Huge could never have obtained the
accommodation she sought in Long Beach. She could have, if she had not acted in
bad faith and delayed the process.
4
1996), and the proposed medical examination was “job related and consistent with
business necessity,” 42 U.S.C. § 12112(d)(4).
AFFIRMED.
5 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289095/ | 2018 IL App (3d) 160165
Opinion filed June 27, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-16-0165
v. ) Circuit No. 05-CF-510
)
DAVID F. BALLER, ) Honorable
) Amy M. Bertani-Tomczak,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court.
Justice Holdridge specially concurred, with opinion.
Justice Schmidt dissented, with opinion.
_____________________________________________________________________________
OPINION
¶1 Defendant, David F. Baller, appeals from the trial court’s order denying his motion for
leave to file a successive postconviction petition. On appeal, defendant argues the State
erroneously filed an objection to his motion for leave and the court erroneously considered the
State’s objection in denying defendant leave. We vacate and remand with directions.
¶2 FACTS
¶3 Defendant entered an open plea of guilty to one charge of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(8) (West 2002)). The trial court admonished defendant that he
could receive a potential sentence of 6 to 30 years’ imprisonment and the sentence would be
served consecutive to the prison sentence defendant was then serving. Defendant indicated he
understood the potential sentence. The court sentenced defendant to 30 years’ imprisonment. The
court ordered the sentence to run consecutively to the sentence imposed in Cook County case
No. 05-CR-0778501.
¶4 On November 18, 2011, defendant filed a pro se postconviction petition, which raised
claims of ineffective assistance of trial and appellate counsel. The court summarily dismissed the
petition. On appeal, we affirmed the court’s dismissal. People v. Baller, 2014 IL App (3d)
120214-U.
¶5 On June 19, 2015, defendant filed a pro se motion for leave to file a successive
postconviction petition. The State filed a written objection to defendant’s motion. At a
subsequent court date, when only the State was present, the court denied defendant’s motion,
stating:
“I’ve had a chance to review the defendant’s petition for leave to file a
successive post conviction [sic]. I also had a chance to read the State’s motion
to—or your objection, and I’m going to grant your objection. I’m not going to
allow him to file a successive petition for post-conviction relief.”
Defendant appeals from the trial court’s denial of his motion for leave to file a successive
postconviction petition.
¶6 ANALYSIS
¶7 Defendant argues the court impermissibly relied on input from the State before denying
defendant’s motion for leave to file a successive postconviction petition. Defendant requests a
reversal of the order denying his motion for leave and asks this court to remand the matter for the
2
trial court to consider defendant’s motion anew, without input from the State. The State agrees
the trial court should not have considered the State’s position before denying defendant’s request
to file a successive postconviction petition. However, the State asserts that remand is
unnecessary. On appeal, the State requests this court to affirm the trial court’s order because
defendant’s motion did not adequately allege cause and prejudice.
¶8 The issue of whether reversible error arises when a trial court takes the State’s position
into consideration before ruling on a defendant’s motion seeking leave to file a successive
postconviction petition was recently addressed in People v. Bailey, 2017 IL 121450. In Bailey,
the supreme court held “it is premature and improper for the State to provide input to the court
before the court has granted a defendant’s motion for leave to file a successive [postconviction]
petition.” (Emphasis added.) Id. ¶ 20. Ultimately, the supreme court found section 122-1(f) of the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2016)) requires the trial court to
conduct an independent inquiry, without input from the State, before determining whether a
defendant is entitled to receive the requested leave necessary to file a successive postconviction
petition. Bailey, 2017 IL 121450, ¶ 24.
¶9 In People v. Munson, 2018 IL App (3d) 150544, this court had an opportunity to apply
Bailey to set aside a trial court’s decision granting the State’s motion to dismiss the defendant’s
motion for leave to file a successive postconviction petition. We further found that section 122-1
of the Act expressly contemplates the filing of the petition in the “ ‘trial court.’ ” Id. (quoting 725
ILCS 5/122-1 (West 2014)). Therefore, consistent with the spirit of Bailey and plain language of
the Act, we remanded the cause with directions for the trial court to conduct an independent
determination pertaining to whether defendant’s motion for leave satisified the requirement of
cause and prejudice. Id. ¶ 12.
3
¶ 10 In this case, the State also opposed defendant’s motion for leave to file a successive
postconviction petition in the trial court. Here, the court considered the State’s opposition before
denying defendant’s motion. On appeal, both parties agree the trial court’s approach was
incorrect in light of Bailey. Consequently, we conclude that remand to the trial court for new
proceedings on defendant’s motion, held without input from the State, is appropriate.
¶ 11 The dissenting justice seems to agree that the trial court erred by considering the State’s
input but contends a remand in this case is not necessary. Specifically, the dissenting justice
declares our approach to remand the matter to the trial court in Munson misconstrues Bailey and
was “wrongly decided.” Infra ¶ 27. Rather than remanding the matter in the case at bar, the
dissent would simply affirm the trial court’s incorrect decision. Such an approach by the dissent
not only affirms the trial court’s erroneous procedures but inexplicably repeats the same error by
declaring the motion to be insufficient after adopting the State’s position on cause and prejudice,
as expressly argued by the State in this appeal.
¶ 12 We recognize that the Bailey court analyzed the contents of Bailey’s motion for leave to
file a supplemental postconviction petition. Bailey, 2017 IL 121450, ¶¶ 42-46. However, unlike
this court, the supreme court has been vested with broad supervisory authority by the Illinois
Constitution. Ill. Const. 1970, art. VI, § 16. These powers are not limited by any rules or means
for their exercise. People v. Salem, 2016 IL 118693, ¶ 20.
¶ 13 It appears the dissent bristles at our holding in Munson recognizing our intermediate
court of review does not possess the same broad supervisory authority exercised by our supreme
court in Bailey. The dissent announces that “[t]here is nothing about a successive postconviction
petition that would take it out of the realm of garden-variety appellate review.” Infra ¶ 29. The
4
dissent suggests its approach “has nothing to do with supervisory authority but, rather, with our
license to affirm for any reason apparent in the record.” Infra ¶ 29.
¶ 14 While we acknowledge the generally accepted principle that an appellate court may
affirm on any basis found in the record, we conclude this general principle does not apply in the
case at bar. The Bailey court expressly held that “the State should not be permitted to participate
at the cause and prejudice stage of successive postconviction proceedings.” Bailey, 2017 IL
121450, ¶ 24. Bailey clearly held the State’s participation in the trial court constitutes error. Id.
We presume the holding in Bailey precludes the State’s discussion of cause and prejudice before
any court, including our court of intermediate review.
¶ 15 Here, the State’s entire seven-page appellee brief argues that defendant has failed to
establish cause and prejudice. Clearly, the appellate prosecutor has thoughtfully participated and
expressed the State’s views on the question of whether defendant’s motion in the trial court
established cause and prejudice. Ironically, the dissent relies on the State’s argument to the point
of adopting, verbatim, the State’s rationale that “[d]efendant’s ignorance of the law cannot
amount to cause sufficient to explain his failure to bring this claim in his initial postconviction
proceeding.” Infra ¶ 26. This is simply not the isolationist review required by Bailey.
¶ 16 Thus, we emphasize that the procedural posture of the instant case creates an exception to
the general principle that an appellate court may affirm on any basis found in the record. The
supreme court has expressly held that the Act is entirely a creature of statute and all rights derive
only from the statute. People v. De La Paz, 204 Ill. 2d 426, 432 (2003). Further, the supreme
court has expressly held that review of a motion for leave to file a successive postconviction
petition must be conducted in a venue free from State participation. Bailey, 2017 IL 121450,
¶ 24. The only way to honor these holdings is to reset the scales of justice and remand the matter
5
to the trial court for an independent evaluation of defendant’s motion by expressly ignoring the
State’s input as expressed both in this court and the trial court.
¶ 17 CONCLUSION
¶ 18 The trial court’s order denying defendant’s motion for leave to file a successive
postconviction petition is vacated, and the matter is remanded with directions for the trial court
to conduct a de novo review of defendant’s motion prior to allowing any input from the State.
Defendant’s request to order the motion to be heard by a different judge is denied.
¶ 19 Vacated and remanded with directions.
¶ 20 JUSTICE HOLDRIDGE, specially concurring:
¶ 21 While I agree with the majority’s reversal and remand of this case, I respectfully deviate
from its analysis.
¶ 22 In Bailey, 2017 IL 121450, ¶ 24, the supreme court expressly held “that the State should
not be permitted to participate at the cause and prejudice stage of successive postconviction
proceedings.” The supreme court observed that “although the Act does not expressly prohibit the
State’s input, we find that the Act contemplates an independent determination by the circuit
court.” Id. The supreme court reiterated this holding throughout the 24 paragraphs that proceeded
it. See id. ¶¶ 25, 27, 39, 48. Following this clear delineation of a rule that requires “an
independent determination by the circuit court” (emphasis added) (id. ¶ 24), the supreme court
curiously proceeded to review Bailey’s motion outside of the circuit court and after considering
the State’s argument that the “defendant’s motion is deficient on its face.” Id. ¶¶ 41-46.
¶ 23 The instant case presents a scenario that is procedurally similar to Bailey. Following the
circuit court’s erroneous consideration of the State’s objection to the defendant’s motion for
leave, the State argued against the merits of the defendant’s motion in its appellee’s brief. In light
6
of the State’s continued objection, and out of an abundance of caution, I agree that the case must
be remanded for the circuit court to make an independent determination of whether the defendant
has shown cause and prejudice. If we affirm the denial of the defendant’s motion, it is difficult to
say that our decision was not influenced, at least in some respect, by the State’s appellate
argument against the motion. See id. ¶ 33. Such influence from the State would clearly violate
the Bailey rule.
¶ 24 JUSTICE SCHMIDT, dissenting:
¶ 25 I respectfully dissent. I agree with the majority with respect to its determination that the
trial court erred in allowing the State to participate in the hearing to determine whether defendant
was entitled to leave to file a successive postconviction petition. I part company with the
majority when it determines application of Bailey requires reversal and remand. The Bailey
court, having found error by virtue of the State’s involvement in the trial court’s determination to
deny leave to file a successive postconviction petition, went on, in the interest of judicial
economy, to review defendant’s motion. People v. Bailey, 2017 IL 121450, ¶¶ 41-42. Because
the defendant’s motion failed to establish cause and prejudice, the court affirmed the trial court’s
denial of leave. Id. ¶ 46.
¶ 26 Here, it is clear that defendant has failed to allege facts to support cause. Specifically,
defendant alleged:
“2. There is cause for my failure to bring the claim contained in
the current petition in my previous post-conviction petition, in that
I was unaware of the MSR violation of due process, until my third
appeal in January of 2012.”
7
Defendant’s ignorance of the law cannot amount to cause sufficient to explain his failure to bring
this claim in his initial postconviction proceeding. See People v. Evans, 2013 IL 113471, ¶ 13.
There is no need to discuss prejudice. Notwithstanding the error, the trial court properly denied
defendant’s motion for leave to file a successive postconviction petition. Any remand in this case
constitutes an absolute waste of judicial resources. The majority argues that since I, after
reviewing the record, came to the same conclusion as did the State, I must have relied upon the
State’s input. Supra ¶ 15. Not so! Coming to the same conclusion after a review of the record is
decidedly different than relying on the State’s argument. The defendant’s motion is deficient on
its face; ignorance of the law is not cause.
¶ 27 The majority relies on People v. Munson, 2018 IL App (3d) 150544, for the proposition
that we are without power to affirm in light of the error. Supra ¶¶ 9-10. I submit that Munson is
wrongly decided. The majority determines that we must remand because, “unlike this court, the
supreme court has been vested with broad supervisory authority by the Illinois Constitution.”
Supra ¶ 12.
¶ 28 The Bailey court’s review of the merits of the petition for leave had nothing to do with its
supervisory authority. Bailey, 2017 IL 121450. We can affirm for any reason apparent in the
record. City of Champaign v. Torres, 214 Ill. 2d 234, 241 (2005); Guzzo v. Snyder, 326 Ill. App.
3d 1058, 1064 (2001). Apparent in this record, as it was in Bailey, is the fact that the motion for
leave to file a successive postconviction petition is utterly without merit for the reasons set forth
above.
¶ 29 The Munson court’s train jumped the tracks in paragraph 10. Munson, 2018 IL App (3d)
150544, ¶ 10. It simply asserted that to review the record to evaluate whether the trial court’s
error prejudiced defendant involved an exercise of supervisory authority. It never discussed why
8
that is so. The Munson court noted, “Notably, Illinois Supreme Court Rule 615 does not provide
the appellate court with the power to conduct a de novo hearing on defendant’s motion for leave
to file a successive postconviction petition.” Id. There is nothing novel or unique about affirming
the trial court in this case without remand, notwithstanding the trial court’s error below. We do it
all the time. Again, this has nothing to do with supervisory authority but, rather, with our license
to affirm for any reason apparent in the record. I need not cite any case authority for the notion
that “de novo” is an oft-used standard of review in the appellate court. In plain English, the trial
court reviewed and denied defendant’s motion for leave to file his successive postconviction
petition. The trial court erred in allowing the State to participate in that decision.
Notwithstanding the error, the ultimate judgment of the trial court was correct. We should affirm.
We do this thousands of times a year in cases not involving successive postconviction petitions.
There is nothing about a successive postconviction petition that would take it out of the realm of
garden-variety appellate review. That portion of the Munson court’s ruling, holding that
affirming without remand involves exercise of supervisory authority, appears to be an anomaly
in Illinois jurisprudence. As in Bailey, the error below was harmless.
¶ 30 I would affirm the trial court.
9 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4128597/ | ATTORNEY GENERAL OFTEXAS
GREG ABBOTT
January 9,2007
The Honorable Harvey Hilderbran OpinionNo. GA-0498
Chair, Committee on Culture, Recreation,
and Tourism Re: Whether the Edwards Aquifer Authority may
Texas House of Representatives reduce groundwater withdrawal permit amounts
Post Office Box 2910 for certain permit holders below the amount
Austin, Texas 78768-2910 specified in section’ 1.16(e) of the Authority’s
enabling act when, if allypermitted amounts are
withdrawn, over 450,000 acre-feet of water will
be withdrawn from the aquifer in a calendaryear
(RQ-0469-GA)
Dear Representative Hilderbran:
You ask about the power of the Edwards Aquifer Authority (the “Authority”) to reduce
groundwater withdrawal permit amounts for certain permit holders below the amount specified in
section 1.16(e) of the Authority’s enabling act when, if all of the permitted amounts are withdrawn,
more than 450,000 acre-feet’ of water will be withdrawn from the Edwards Aquifer in a calendar
year.’ We understand you to be particularly concerned about (I) existing irrigation users who, under
section 1,16(e), are to receive permits that allow the withdrawal of not less than two acre-feet of
water a year for each acre of land the user actually irrigated during the historical period’ (whom we
will refer to as “irrigation users”) and (2) existing aquifer users who have operated wells for three
or more years during the historical period and whose permits, under section 1.16(e), are to allow
withdrawal of the average amount of water withdrawn annually during the historical period (whom
we will refer to as “averagers”). See Act of May 30, 1993, 73d Leg., R.S., ch. 626, 5 1.16(e), 1993
Tex. Gen. Laws 2350,236l [hereinafter the Act].
‘“An acre-foot is the amount of water that would cover an acre of land to one foot, approximately325,850
gallons.” B&shop Y Medina County Underground Water Conservation Disf, 925 S.W.2d 618,624 n.1 (Tex. 1996).
?Ser Letter from Honorable Harvey Hilderbran, Chair, Committee on Culture, Recreation, and Tourism, Texas
House of Representatives, to Honorable Greg Abbott, Attorney General of Texas (Mar. 16, 2006) (on file with the
Opinion Committee, also available af http:Nwww.oag.state.tx.us) [hereinafter Request Letter].
‘An applicant for a regular permit must file a “declaration of historical use of underground water withdrawn
from the aquifer during the historical period from June 1, 1972,tbrough May 31, 1993.” Act ofMay 30,1993,73dLeg.,
R.S., ch. 626, 5 1.16(a), 1993 Tex. Gen. Laws 2350,2361. We use the term “historical period” throughout this opinion
to refer to the 2 I -year period beginning June 1, 1972 and ending May 3 1, 1993.
The Honorable Harvey Hilderbran - Page 2 (GA-0498)
I. Constitutional and Statutory Provisions
A. Texas Constitution article XVI, section 59
Under article XVI, section 59(a) ofthe Texas Constitution, conserving and developing water
are “public rights and duties” about which the Legislature may adopt appropriate laws. TEX. CONST.
art. XVI, § 59(a). Subsection (b) authorizes the creation of conservation and reclamation districts
“with the authority to exercise such rights, privileges and functions concerning the subject matter
of this [section] as may be conferred by law.” Id. 5 59(b).
B. The 1993 Act creating the Edwards Aquifer Authority
1. Generally
Consistently with its authority under article XVI, section 59(b), the Legislature in 1993
created a “conservation and reclamatron district, to be known as the Edwards Aquifer Authority,
in all or part of Atascosa, Bexar, Caldwell, Comal, Guadalupe, Hays, Medina, and Uvalde
counties.” Act 5 1.02, at2351;4see also id. 5 1.01, at2350-51 (articulating theLegislature’sreasons
for creating the district). The Authority generally has “all of the powers, rights, and privileges
necessary to manage, conserve, preserve, and protect the [Edwards AquiferI and to increase the
recharge6 of, and prevent the waste7 or pollution’ of water in, the aquifer” and “all of the rights,
‘The Act has been amended by the following laws: Act of May 16,1995,74th Leg., RX, ch. 524,1995 Tex.
Gen.Laws3280,3280;ActofMay29,1995,74thLeg.,R.S., ch.261,1995 Tex. Gen. Laws2505,2505-17;ActofMay
6, 1999,76th Leg., RS:, ch. 163, 1999 Tex. Gen. Laws 634,63435; Act of May 25,2001,77th Leg., RX, ch. 1192,
2001 Tex. Gen. Laws2696,2696-97;ActofMay27,2001,77thLeg., RX, ch. 966, $5 2.60-.62,2001 Tex. Gen. Laws
1991,2021-22; ActofJune 1,2003,78thLeg.,R,S.,ch. 1112, $6.01(4),2003 Tex. Gen. Laws 3188,3192-93. None
of these amendments affect the portions of the 1993 Act that are relevant here.
‘The 1993 Act defines the Edwards Aquifer as
that portion of an arcuate belt of porous, water-bearing, predominately carbonate
rocks known as the Edwards and AssociatedLimestones inthe Balcones Fault Zone
extending from west to east ,to northeast from the hydrologic division near
Brackettville in Kiiey County that separates underground flow toward the Coma1
Springs and San Marcos Springs from underground flow to the Rio Grande Basin,
through Uvalde, Media, Atascosa:~Bexar, Guadalupe, and Coma.1counties, and in
Hays County south of the hydrologic division near Kyle that separates flow toward
the San Marcos River from flow to the Colorado River Basin.
Act § 1,03(l), at 2351; see also id. 5 1.04, at 2353-55 (setting out the Authority’s boundaries).
‘The Act defines the term “recharge” to mean “increasing the supply of water to the aquifer by naturally
occurring channels or artificial means.” Id. $ 1.03(18), at 2352.
‘The Act defines the term “waste” to mean:
(A) withdrawal of underground water from the aquifer at a rate and in an
amount that causes or threatens to cause intrusion into the reservoir of water
unsuitable for agricultural, gardening, domestic, or stock raising purposes;
(continued...)
The Honorable Harvey Hilderbran - Page 3 (GA-0498)
powers, privilegis, authority, functions, and duties provided by the general law of this state,
including Chapters 50, 5 1, and 52,9 Water Cocle, applicable to au authority created under” article
XVI, section 59 of the Texas Constitution. Id. 5 1.08(a), at 2356 (footnotes added). The Act further
requires the Authority’s governing board to adopt rules as necessary to carry out the Authority’s
statutory powers and duties; to ensure compliance with permitting requirements and to regulate
permits; and to issue orders enforcing the Act or the Authority’s rules. See.id. 5 1.1 l(a)-(c), at 2358;
see also id. 4 1.09, at 235657 (describing the nine-member board of directors).
2. Section 1.14: Limits on the total amount of water withdrawn
Section 1.14 of the Act provides specifically for withdrawals from the aquifer and is one of
two sections that is particularly at issue in your request. See Request Letter, supra note 2, at 1.
Subsection (a) expressly requires that authorizations to withdraw water be limited to:
‘(...continned)
(B) the flowing or producing of wells from the aquifer if the water
produced is not used for a beneficialpurpose;
(C) escape of underground water from the aquifer to any other reservoir
that does not contain undergroundwater;
(D) pollution or hannfid alterationof underground water in the aquiferby
salt water or other deleterious matter admitted from another stratum or from the
surface of the ground;
(E) wilfully or negligently causing, suffering, or permitting underground
Water from the aquifer to escape into any river, creek, natural watercourse,
depression, lake, reservoir, drain, sewer, street, highway, road, or road ditch; or
onto any land other than that of the owner of the well unless such discharge is
authorized by permit, rule, or order issued by the [Texas Commission on
EnvironmentalQuality] under Chapter 26, Water Code;
(F) undergroundwater pumped fromthe aquiferfor irrigationthat escapes
as irrigation tailwater onto land other than that of the owner of the well unless
permissionhas been grantedby the occupantofthe land receiving the discharge;or
(G) for water produced from an artesian well, “waste”has the meaning
assigned by Section 11.205,Water Code.
Id. 5 1.03(21),at 2352; see also id. $ 1.03(4),at 2351 (defining “beneficialuse”); infra note 10 (quoting the Act’s
definition of “beneficialuse”).
‘The Act defines the term “pollution”to mean “the alteration of the physical, thermal, chemical, or biological
quality of any water in the state, or the contamination of any water in the state, that renders the water harmful,
detrimental, or injuriousto humans, animal life, vegetation,property, or public health, safety, or welfare or that impairs
the usefulness ofthe public enjoyment ofthe water for any lawful or reasonable purpose.” Act 5 1.03(17),al 2352.
gWater Code chapter 52 was repealed in 1995 and its substance was moved to chapter 36 of the same code
See Act of May 29,1995,74th Leg., R.S., ch. 933, $$2,6,1995 Tex. Gen. Laws 4673,4679-701.
The Honorable Harvey Hilderbran - Page 4 (GA-0498)
(1) protect the water quality of the aquifer;
(2) protect the water quality ofthe surface streams to which the
aquifer provides springflow;
(3) achieve water conservation;
(4) maximize the beneficial use” of water available for
withdrawal from the aquifer;
(5) protect aquatic and wildlife habitat;
(6) protect species that are designated as threatened or
endangered under applicable federal or state law; and
(7) provide for instream uses, bays, and estuaries.
Act 5 1.14(a), at 2360 (footnote added). With certain exceptions, subsection (b) limits the amount
of permitted withdrawals through December 3 1, 2007 to 450,000 acre-feet per year:
Except as provided by Subsections (d), (t), and (h) of this
section and Section 1.26 of this article, for the period ending
December 3 1, 2007, the amount of permitted withdrawals from the
aquifer may not exceed 450,000 acre-feet of water for each calendar
year.
Id. 5 1.14(b), at 2360. The four exceptions listed in subsection (b)-section 1.14(d), (f), and(h) and
section 1.26-allow the Authority to adjust the total amount of acre-feet withdrawn from the aquifer
in certain circumstances:
. Section 1.14(d) authorizes the Authority, “in consultation with
appropriate state and federal agencies,” to “increase the
maximum amount ofwithdrawals” ifthe Authority “determines
that additional supplies are available.” Id. 5 1.14(d), at 2360.
. Under section 1.14(f), “[ilfthe level of the aquifer is equal to or
greater than 650 feet above mean sea level as measured at Well
J-17 [located in Bexar County, see id. 5 1.03(23), at 23521, the
[Aluthority may authorize withdrawal from the San Antonio
“For the Act’s purposes, the term “beneficial use” means “the use of the amount of water that is economically
necessary for a purpose authorized by law, when reasonable intelligence and reasonable diligence are used in applying
the water to that purpose.” Act 5 1.03(4), at 235 1.
The Honorable Harvey Hilderbran - Page 5 (GA-0498)
pool, on an uninterruptible basis, of permitted amounts. If the
level of the aquifer is equal to or greater than 845 feet at Well
J-27 [located in Uvalde County, see id. 5 1.03(24), at 23531, the
[Aluthority may authorize withdrawal from theuvalde pool, on
an uninterruptible basis, of permitted amounts.” Id. § 1.14(f),
at 2360. The additional withdrawals must be limited to ensure
that “springflows are not affected during critical drought
conditions.” Id.
. Section 1.140 authorizes the Authority to implement, enforce,
and revise water management practices, procedures, and
methods to ensure that, “not later than December 3 1,2012, the
continuous minimum springflows ofthe Coma1 Springs and the
San Marcos Springs are maintained to protect endangered and
threatened species to the extent required by federal law.” Id. §
l.l4(h),,at2360.
. Section 1.26 requires the Authority to prepare a critical period
management plan that distinguishes between discretionary and
nondiscretionary use; requires that all discretionary use be
reduced to the “maximum extent feasible”; requires “utility
pricing, to the maximum extent feasible, to limit discretionary
use by” water utility customers; and requires permitted or
contractual users, “to the extent further reductions are
necessary,” to reduce nondiscretionary use in line with certain
statutory priorities. Id. 5 1.26,,at 2363-64.
3. Section 1.16 and others: Permitting requirements,
No person may withdraw water from the aquifer or construct a well without a permit from
the Authority except “as provided by Sections 1.17 [allowing persons who own certain producing
wells on the Act’s effective date to continue to withdraw water until the Authority takes final action
on permits] and 1.33 [exempting wells that produce no more than 25,000 gallons of water per day
for domestic or livestock use from metering requirements] .” Id. § 1.15(a)-(b), at 2360-6 1. A person
who is required to obtain a permit but who withdraws water without a permit may be subject to an
administrative or civil penalty and be enjoined. See id. $5 1.37(a), .38, .40, at 2366,236s.
The Act expressly authorizes the Authority to issue three types of permits: “regular permits,
term permits, and emergency permits.” Id. 5 1.15(c), at 2361. The Act recognizes two types of
regular permits: an “initial regular permit” and an “additional regular permit.” See id. $5 1.16, .18,
at 2361,2362. Your questions concern only initial regular permits.
To obtain an initial regular permit, section 1.16 requires an existing user to tile “a declaration
of historical use of underground water withdrawn from the aquifer” during the historical period. Id.
The Honorable Harvey Hilderbran - Page 6 (GA-0498)
§ 1.16(a), at 2361; see also supra note 3 (defining “historical period” for purposes of this opinion).
Upon receiving the declaration and the requisite fees, the Authority must grant an initial regular
permit if the applicant has established “by convincing evidence beneficial use of underground water
from the aquifer.” Act § 1.16(d), at 2361. The “maximum rate and total volume of water that the
water user may withdraw in a calendar year” is specified in each permit. Id. $ 1.15(d), at 2361.
Section 1.16(e) provides the maximum total volume ofwater certain types of users may be,permitted
to withdraw (each sentence is numbered in brackets for purposes of the analysis that follows):
[l] To the extent water is available for permitting, the
[Authority’s governing] board shall issue the existing user a permit
for withdrawal of an amount of water equal to the user’s maximum
beneficial use of water without waste during any one calendar year of
the historical period. [2] If a water user does not have historical use
for a full year, then the authority shall issue a permit for withdrawal
based on an amountofwater that would normally be beneficially used
without waste for the intended purpose for a calendar year. [3] If the
total amount of water determined to have been beneficially used
without waste under this subsection exceeds the amount of water
available for permitting, the [Aluthority shall adjust the amount of
water authorized for withdrawal under the permits proportionately to
meet the amount available for permitting. [4] An existing irrigation
user shall receive a permit for not less than two acre-feet a year for
each acre of land the user actually irrigated in any one calendar year
during the historical period. [5] An existing user who has operated
a well for three or more years during the historical period shall
receive a permit for at least the average amount of water withdrawn
annually during the historical period.
Id. § 1.16(e), at 2361
II. Facts
You inform us that the Authority took applications for initial regular permits from 1996
through November 2005. Request Letter, supra note 2, at 1. After all the permits were issued, “it
was determined that the sum of all these permits exceeded the 450,000 acre feet” withdrawal cap.
Id. at 2. Indeed, according to the Authority, “[tlhe total of all statutory minimums is 521,439.722”
acre-feet per year.” To bring the total amount of permitted withdrawals down to 450,000 acre-feet
“Letter from Darcy A. Frownfelter, Kemp Smith L.L.P., on behalf of the Edwards Aquifer Authority, to
Honorable Greg Abbott, Attorney General ofTexas, at 7 (July 21 I 2006) [hereinafter Authority Briefj; accordEowARos
AQUIFERAUTHORITY, FACTSHEET:FM& GROUNDWATER WITHDRAWAL PERMITAMOUNTS ESTABLISHED 2 (Nov. 30,
ZOOS),mailable athttp://~w.edwardsaquifer.org/pdfs/fact%2OSheets~inal%2OOrder%2OA~achment.pdf(last visited
Dec. 12,2006).
The Honorable Harvey Hilderbran - Page 7 (GA-0498)
per year, according to the Authority, it added “every permit holder’s maximum historic use together
and [then] proportionally reduc[ed] the sum of’ the amount allowed under each regular permit.”
The Authority’s rules refer to the proportionally reduced withdrawal amount as “senior rights” or
“uninterruptible withdrawal amount.“‘3 See EDWIWX AQUIFERAUTHORITY,EDWARDSAQUIFER
AUTHORITY RULES $5 702.1(b)(56), (64), 711.164(d), available at http://www.edwardsaquifer
.org/pdfs/rules/Final-Rules.pdf (last visited Dec. 12, 2006) [hereinafter EDWARDS AQUIFER
AUTHORITYRULES]. Under the Authority’s rules, the amount of water that the Authority
may permit to be withdrawn on an unintermptible basis as senior
rights pursuant to initial regular permits shall not exceed 450,000
acre-feet for each calendar year under the following Aquifer
conditions:
(1) for wells in the San Antonio Pool, the water level of
the Aquifer +s measured at well J-17 is equal to or greater than 650
feet above mean sea level;
(2) for wells in the Uvalde Pool, the water level of the
Aquifer as measured at well J-27 is equal to or greater than 845 feet
above mean sea level.
Id. 5 7 11.164(a); cf Act $ 1.14(f), at 2360 (authorizing the Authority to allow withdrawals from the
San Antonio pool if the water level at well J-17 is equal to or greater than 650 feet above mean sea
level or from the Uvalde pool if the water level at well J-27 is equal to or greater than 845 feet above
mean sea level). In some cases, the senior rights “fell below the statutory minimum provided in
Section 1.16(e) of the Act.” Request Letter, supra note 2, at 2.
To address the fact that some of the allotted senior rights fell below the withdrawal amounts
that the fourth and fifth sentences of section 1.16(e) set out, the Authority granted permit holders
interruptible, or “junior,” rights that make up the difference between the statutory minimum and the
proportionally reduced amount. See FACT SHEETON SENIOR AND JUNIOR AMOUNTS, sugra note 12;
see EDWARDSAQUIFER AUTHOXUTY RULES $5 702.1(b)(35)-(36), 711.164, ,176. A junior-rights
holder with a well in the San Antonio Pool may withdraw water under the junior rights “whenever
the water level of the Aquifer as measured at well J-17 is greater than 665 feet above mean sea
level”; ajunior-rights holder with a well in the Uvalde Pool may exercise the junior rights “whenever
the water level of the Aquifer as measured at well J-27 is greater than 865 feet above mean sea
‘zE~~~~A~~~~~~A~~~~~~~, FACTSHEET:UN~TERRUPTI~LEC’SENIOR”)ANDINTERRUPTIBLEC‘JUNIOR”)
AUTHORIZEDAMOUNTS,AND INITIALREGULARPEFGWTS(Jan. 4, 2006), available af http:l/www.edwardsaquifer.org
/pdfs/fact%20SheetsRinterruptible%20and%2Ointe~uptib~e%2Oamounts.pdf(last visitedDec. 12,2006) [hereinafter
FACTSHEETON SENIORAND JCNORAMOUNTS].
“The term “uninte~uptible” is a misnomer; senior rights may, in fact, be reduced, but “only when the Authority
declares a stage ofthe Demand Management/Critical Period Management Rules to be in effect.” Id.; see also Act 5 1.26,
at 2363-64 (providing for a critical period management plan).
The Honorable Harvey Hilderbran - Page 8 (GA-0498)
level.” EDWARDS AQUIFERAUTHORITYRULES5 715.504(b)-(c). Thus, for example, an irrigation
user whose senior rights allow the withdrawal of 1.6 acre,feet per year may be provided with
junior rights allowing the user to withdraw an additional 0.4 acre-feet per year, bringing the total
withdrawal amount allowed under the permit to 2 acre-feet of water per year (assuming the
relevant well level is high enough), the number set out in section l.l6(e)‘s fourth sentence. See id.
5 711,176(b)(6).
III. Analysis
Based on the Authority’s actions, you pose three questions:
1) Is the [Authority] statutorily authorized to reduce the
uninterruptible groundwaterwithdrawal rights ofpermit holders to an
amount that is below their statutory minimum as provided in Section
1.16(e) of the Act?
2) Does the [Authority] have the statutory authority to issue
a type of permit that contains interruptible “junior” withdrawal rights
which are not specifically authorized or included m the types of
permits authorized by the [Authority’s] enabling legislation?
3) If the [Authority] can reduce permit holders to amounts
below their statutory minimums, should these permit holders receive
compensation?
Request Letter, supra note 2, at 2. Your third question raises an issue implicated in pending
litigation. See Plaintiffs Original Petition for Review and Suit for Declaratory Relief and Inverse
Condemnation, 777 Operating Co. v. Edwards Aquifer Auth., No. 05-lo-17660-CV (38th Dist. Ct.
Oct. 27,2005). This office typically does not issue an opinion on a question that we know to,be the
subject of pending litigation. See Tex. Att’y Gen. Op. No. GA-0399 (2006) at 3 n.5. Consequently,
we do not answer your third question,
In examining your remaining questions, we recognizethat the Authority “may exercise only
such powers” as the Legislature has expressly delegated to it “or which exist by clear and
unquestioned implication.” T&City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945,946
(Tex. 1940); accord Hurlingen Irrigation Dist. Cameron County No. 1 v. CaprockCommc ‘ns Corp.,
49 S.W.3d 520,536 (Tex. App.-Corpus Christi 2001, pet. denied); see also Tex. Att’y Gen. Op.
No. GA-0284 (2004) at 3 (limiting the powers of a waterway,and navigation district to only those
delegated by statute). On the other hand, a court will give “some deference” to an administrative
agency’s reasonable construction of an ambiguous statute that the agency is charged with enforcing.
Fiess Y. State Farm Lloyds, 202 S.W.3d 744,747 (Tex. 2006); see also Act § 1.1 l(a)-(c), at 2358
(delegating enforcement powers to the Authority).
The Honorable Harvey fiilderbran - Page 9 (GA-0498)
A. Whether the Authority may reduce groundwater withdrawal rights to an amount
below a statutory minimum
Section 1.16(e) provides permits for four types of users: an existing user, a user without
historical use for a full year, an irrigation user, and an averager. See Act 5 1.16(e), at 2361. Your
question requires us to consider whether, in light of the facts as we have assumed them, the
Authority reasonably has determined that users whose withdrawal amounts are set in accordance
with the fourth and fifth sentences of section 1.16(e)-irrigation users and averagers-are subject
to proportional reduction.
The Texas Supreme Court twice has stated that,irrigation users and averagers are not subject
to a “downward adjustment” under section 1.16(e) if insufficient water is available. Burshop, 925
S.W.2d at 624 n.2; Bragg v. Edwards Aqu$r Auth., 71 S.W.3d 729, 73 1 (Tex. 2002): In a 1996
case, Barshop v. Medina County Underground Water Conservation District, the court summarized
section 1.16(e):
The Act entitles an existing user to a permit for an amount of
water equal to the user’s maximum beneficial use of water during any
one calendar year of the historical period, unless the sum-total
amount of such use tbroughoutthe aquifer exceeds 450,000 acre-feet.
If this occurs, the Authority is required to adjust proportionately the
amount of water authorized for withdrawal under the permits to meet
the cap.
Barshop, 925 S.W.2d at 624 (citations and footnote omitted). In a footnote following this summary,
the court states that “[a]n existing user can avoid this downward adjustment” in two circumstances:
First, an existing user who has operated a well for three or more years
during the historical period shall receive a permit for at least the
average amount of water withdrawn annually during the historical
period. Second, an existing irrigation user shall receive a permit for
not less tbantwo acre-feet a year (approximately 650,000 gallons) for
each acre of land the user actually irrigated in any one calendar year
during the historical period.
Id. at 624 n.2 (citations omitted). The court in 2002 repeated the footnote’s substance in Bragg v.
Edwards Aquifer Authority. See Bragg, 71 S.W.3d at 73 l-32.
Given the court’s interpretation, we must conclude that the Act unambiguously precludes the
Authority from reducing withdrawal amounts for irrigation users below “two acre-feet a year for
each acre of land the user actually irrigated in any one calendar year during the historical period.”
Act $ 1,16(e), at 2361. Likewise, the Authority may not reduce averagers’ withdrawal amounts
below “the average amount of water withdrawn annually during the historical period.” Id. The
Authority’s construction, which is inconsistent with the Texas Supreme Court’s express statement,
is thus unreasonable.
The Honorable Harvey Hilderbran - Page 10 (GA-0498)
B. Whether the Authority may issue a type of permit that contains interruptible
“junior” withdrawal rights
You next ask about the Authority’s power to issue a permit granting interruptible “junior”
withdrawal rights. See Request Letter, supra note 2, at 2. Your letter notes that the Act does not
specifically authorize such withdrawal rights. See id.
The Authority contends that the junior/senior rules aid in reconciling the 450,000 acre-feet
withdrawal cap with the minimums articulated in section 1.16(e) of the Act. See Authority Brief,
supra note 11, at 12. Moreover, the Authority suggests that its construction of the Act is reasonable
and is therefore entitled to deference. See id. at 6-7.
The Legislature did not provide any authority in the Act generally for issuing permits with
interruptible withdrawal rights unless the permits are term permits. The Act permits the Authority
to issue “interruptible term permits for withdrawal” for a term not to exceed ten years. See Act
5 1,19(a), at 2362. Term permit holders may not withdraw water from the San Antonio pool unless
the aquifer level is higher than 665 feet above sea level or from the Uvalde pool unless the aquifer
level is higher than 865 feet above sea level. See id. 5 1.19(b)-(c). While the conditions on the
junior permits state the same aquifer levels as the Act sets for term permits, the Authority does not
refer to the junior permits as term permits, and we have no information that the permits’ terms are
limited to ten years or less, as term permits are required to be.
Moreover, the Act sets out a detailed permit system that provides for three types of
permits-regular, term, and emergency. See id. 5s 1.16, .18, .19, .20, at 2361-62. Giventhe Act’s
detailed scheme, we cannot find that the Act “clearly grant[s]” the Authority power to create a new
type ofregular permit. See Tri-City Fresh Water Supply Dist. No. 2,142 S.W.2d at 948; accordSo.
Plains Lamesa R.R. v. High Plains Underground Water Conservation Dist. No. I, 52 S.W.3d 770,
779 (Tex. App.-Amarillo 2001, no pet.); Lower Nueces River Water Supply Dist. v. Cartwright,
274 S.W.2d 199, 207 (Tex. Civ. App.-San Antonio 1954, writ ref d n.r.e.); cJ: Quincy Lee Co. v.
Loda & Bain Eng’rs, Inc., 602 S.W.2d 262,264 (Tex. 1980) (stating that the Baytield Public Utility
District may exercise no authority that the Legislature has not clearly granted). Nor does anything
in chapter 36 or 5 1 of the Water Code authorize the Authority to create a new type of permit. See
TEX. WATER CODE ANN. @ 36.101(a), .113(a), .114(a), 51.122 (Vernon Supp. 2006), 5 51.127
(Vernon 2000); see also Act 3 1.08(a), at 2356 (providing the Authority with powers granted under
chapters 36 and ,51 of the Water Code). Lacking a clear grant of authority, we must conclude that
the Authority has no statutory authority to issue a type of regular permit that contains interruptible
junior withdrawal rights, and its construction to the contrary is unreasonable.
The Honorable Harvey Hilderbran - Page 11 (GA-0498)
SUMMARY
The Texas Legislature has not authorized the Edwards Aquifer
Authority to reduce the withdrawal rights of irrigation users and
averagers, who have received permits under section 1.16(e), sentences
4 and 5 of the Authority’s enabling act. See Act of May 30, 1993,
73d Leg., R.S., ch. 626, 3 1.16(e), 1993 Tex. Gen. Laws 2350,2361.
The Legislature also has not authorized the Authority to issue
interruptible junior withdrawal rights.
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128602/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
December 15,2006
The Honorable Robert E. Talton Opinion No. GA-0493
Chair, Urban Affairs Committee
Texas House of Representatives Re: Whether an “Affidavit of Right of Possession
Post Office Box 2910 or Control” may be used only by a member of the
Austin, Texas 787682910 registered vehicle owner’s immediate family
(RQ-0492-GA)
Dear Representative Talton:
You indicate that “there is some question as to the proper use of the Texas Department of
Transportation’s Form 1895, ‘Affidavit of Right of Possession or Control,’ [(the “Affidavit”)] with
regard to the release of vehicles from licensed vehicle storage facilities.“’ You thus ask whetherany
person may use the Affidavit to gain possession of a vehicle from a vehicle storage facility or
whether usage is limited to “only. an immediate family member of the registered~vehicle owner.”
Request Letter, supra note 1, at 1.
An unauthorized vehicle parked in a parking facility or on certain public roadway areas may
be towed. See TEX. TRANSP. CODE ANN. @ 684.012(a), .0125, .014(a) (Vernon Supp. 2006),
.051-,053 (Vernon 1999); see also id. 5 684.001(l), (4), (6), (7) (Vernon Supp. 2006) (defining
“parking facility, ” “public roadway,” “unauthorized vehicle,” and “vehicle”). These and other
tows that are performed without the vehicle owner’s consent are called “nonconsent tows.” See id.
5 643,201(e)(4) (Vernon Supp. 2006); cJ. id. 5 643.201(e)(2) (defining “consent tow” as “any tow
of a motor vehicle initiated by the owner or operator of the vehicle or by a person who has
possession, custody, or control of the vehicle”). In general, “[a] towing company that makes a
nonconsent tow shall tow the vehicle to a vehicle storage facility. . .” Id. 8 643.206(a). A vehicle
storage facility is operated by a person licensed under Occupations Code chapter 2303. See id.
@643.206(a), 684.001(S); see also id. § 685.001(l)(defining“vehicle storage facility” forpurposes
of setting out the rights of stored vehicles’ owners).
Chapter 2303, Occupations Code, is the Vehicle Storage Facility Act (the “Act”). See TEX.
OCC. CODE a. 3 2303.001 (Vernon 2004). For the Act’s purposes, a vehicle storage facility is a
privately owned “garage, parking lot, or other facility that is used to store or park at least [ten]
‘Letter from Honorable Robert E. T&on, Chair, Urban Affairs Committee, Texas House of Representatives,
to Honorable Greg Abbott, Attorney General of Texas, at I (May 18,2006) (on file with the Opinion Committee, also
available arhttp://www.oag.state.tx.us) [hereinafter Request Letter].
The Honorable Robert E. Talton - Page 2 (GA-0493)
vehicles each year.” Id. 5 2303.002(S); see also id. § 2303.002(7) (defining “vehicle”). The Act
requires the’Texas Transportation Commission (the “Commission”) to adopt rules establishing
licensing requirements for a person wishing to operate a vehicle storage facility and setting out
sanctions that may be imposed on persons licensed under the Act. See id. 5 2303.05 1. The Texas
Department of Transportation (the “Department”) licenses vehicle storage facilities and enforces the
Act andru~es adopted by the Commission. See id. ;5§2303.052(a), ,201, .202, .25 1, ,301. A person
may not operate a vehicle storage facility without a license issued by the Department under the Act.
See id. 5 2302.101(a).
The Commission’s rules concerning vehicle storage facilities are set out in title 43, chapter
18, subchapter G of the Texas Administrative Code. See generally 43 TEX. ADMIN. CODE ch. 18,
subch. G (2006) (Tex. Dep’t of Transp., Vehicle Storage Facilities). Section 18.92 sets out technical
requirements with which a vehicle storage facility must comply when releasing a vehicle stored as
the result ofanonconsent tow. See id. 5 18.92(a) (Tex. Dep’t of Transp., Technical Requirements).
At issue in your request is subsection (a)(3), which requires a licensed vehicle storage facility to
release a vehicle to an individual who presents certain identifying information:
[T]he licensee shall allow the vehicle owner or his/her
authorized representative to obtain possession of the vehicle at any
time between the hours listed on the facility information sign ,
upon payment of all fees due, presentation of valid identification
(Texas drivers license or other state or federally issued photo
identification), and upon presentation of:
(A) a notarized power-of-attorney;
(B) a court order;
(C) a certificate of title;
(D) a tax collector’s receipt and a vehicle. registration
renewal card accompamed by a conforming identification;
(E) notarized proof of loss claim of theft from an
insurance company to show a right to possession;
(F) positive name and address information corresponding
to that contained in the tiles of the [Dlepartment’s Vehicle Titles and
Registration Division; or
(G) ‘a [Dlepartment approved Affidavit of Right of
Possession and Control, as defined in 5 18.82 of this subchapter,
which is to be furnished by the licensee upon request
The Honorable Robert E. Talton - Page 3 (GA-0493)
Id. 5 18,92(a)(3). The rules define the term “[vlehicle owner” to include a member of the registered
vehicle owner’s immediate family. See id. 5 18.82(13) (Tex. Dep’t of Transp., Definitions). The
term “[ilmmediate family” is defined to mean “[a]n individual’s parents, spouse, children, brothers,
and sisters if they reside in and are supported by the same household.” Id. 5 18.82(6). Section
18.82(3) defines the term “Affidavit of Right of Possession and Control,” to which section
18,92(a)(3)(G) refers, as “[a] form prescribed by the [Dlepartment and provided by the licensee for
use by an individual certifying right of possession ifthe licensee is unable to verz$ the individual s
status as an immediatefamily member.” Id. 3 18.82(3) (emphasis added).
The Department-approved Affidavit form requires anotary public to attest that an individual
whose identity has been verified by the presentation of a driver’s license has personally appeared
before him and “after being duly sworn” stated:
That I am the owner (or the authorized representative of the
owner) of the Year/Make of vehicle automobile, bearing m motor
vehicle registration License Plate Number and/or Vehicle
IdentificationNumber, that as such1 am entitled to obtain possession
of said motor vehicle.
Tex. Dep’t ofTramp., Affidavit ofRight ofPossession or Control, available utwww.dot.state.tx.us/
services/motor-carrier/vehicle-storage.htm (last visited Dec. 12,2006).
You aver that the Department has interpreted sections 18.82(3) and 18.92(a)(3)(G) of its rules
“to mean that a vehicle storage facility is required to release a vehicle to any person who presents
a notarized Affidavit,” whether or not the person is a member of the vehicle owner’s immediate
family. Request Letter, S~JXZ note 1, at 2. You believe the rules may be interpreted differently:
Adifferent interpretationof §18.82(3) and [§]18,92[(a)](3)(G)
is that the person certifying right of possession of the vehicle must be
an immediate family member of the vehicle owner. The proper use
of the Affidavit would be limited to those instances when the vehicle
storage facility has some question about or trouble verifying whether
or not the person seeking possession of the vehicle is in fact a family
member of the vehicle owner. Under this interpretation, [if] the
vehicle storage facility, for whatever reason, “_.. is unable to verify
the individual’s status as an immediate family member[,]” the
Affidavit would then be used as additional proof and assurance that
the person wanting the vehicle is an immediate family member of the
vehicle owner.
Id.
In a brief submitted to this office, the Department defends its interpretation of section
18.93(a)(3), under which “anyone can use the aftidavit under Paragraph (G), ifhe or she can sign and
The Honorable Robert E. Talton - Page 4 (GA-0493)
attest that he or she has a right to possession of the vehicle.‘” The Department cites a 2000 decision
of the Austin court of appeals, Quimby v. Tex& Department of Transportation, that “recognized”
that a tow truck operator who is not a member of a stored vehicle owner’s immediate family may use
an Affidavit to establish a right to possess the vehicle. TxDOT Brief, supra note 2, at 2; see
Quimby v. Tex. Dep ‘t ofTransp., 10 S.W.3d 778,779 (Tex. App.-Austin 2000, pet. denied). The
Department urges us to follow Quimby’s lead in upholding a state agency’s interpretation of
the agency’s rules unless they are “plainly erroneous, ” “inconsistent with the rule,” or “arbitrary
or capricious.” TxDOT Brief, supra note 2, at 3; see Quimby, 10 S.W.3d at 781-82. In the
Department’s view, “[i]t is clear that under [section] 18.92(a)(3) the owner or any authorized
representative ofthe owner, regardless ofthe representative’s relationship to the owner, may use the
affidavit to satisfy the requirements of that provision.” TxDOT Brief, supra note 2, at 4.
In Quimby a licensed tow truck operator argued that the Department had erroneously
interpreted section 18.92(a)(3)3 to require a vehicle storage facility to obtain a completed and
notarized Affidavit from him before the facility would release the vehicle to him. See Quimby, 10
S.W.3d at 779. The court explained that generally, eat least with respect to the nonconsent tow of a
motor vehicle that has been “involved in a collision and rendered inoperable,” “a tow truck operator,
and not the owner of the car, will go to the [vehicle storage facility], obtain the vehicle, and tow it
to a repair shop.” Id. In the tow truck operator’s view, requiring him to appear before a notary and
sign an affidavit as the vehicle owner’s authorized representative was unduly burdensome and
resulted in the loss of business to tow trucks operated by the vehicle storage facilities. Id. at 780.
Ultimately holding that “nothing in the rule would preclude” the Department’s
interpretation, the court set out the appropriate standards by which to evaluate the Department’s
construction:
We will examine [the Department’s] interpretation of its rule
to see if that interpretation is reasonable. Administrative rules are
ordinarily construed in the same manner as statutes. An agency’s
interpretation of its own rules is entitled to deference by the courts.
Our review is limited to determining whether the administrative
interpretation “is plainly erroneous or inconsistent with the
regulation.” We will defer to an agency’s interpretation as long as it
is reasonable and does not contradict the plain meaning of the statute.
‘Letter from Leonard Reese, Associate General Counsel, Texas Department of Transportation, to Nancy S.
Fuller, Chair, Opinion Committee, Office of the Attorney General, at 2 (June 9, 2006) (on file with the Opinion
Committee) [herein&r TxDOT brief].
‘Quimby refers m the relevant section as 18.92(a)(2). See Quimby, 10 S.W.3d at 779;~~ also 22 Tex. Reg.
2593,2597-98 (1997), adopted22 Tex. Reg. 5680, 5680 (1997) (codified at 43 TEX. ADMIN. CODE 5 18.92(a)(2))
(adopting the rule considered in Quimby). In November 2003 the Texas Department of Transportation proposed that,
amongotherthings, subsection(2) ofsection 18.92 be renumbered assubsection(3). See28 TexReg. 10150,1016768
(proposedNov. 14,2003). The Commission adopted this proposal in2004. See29 Tex. Reg. 2715,2716 (March 12,
2004). To avoid confusion, this opinion refers to the relevant section as section 1%92(a)(3).
The Honorable Robert E. Talton - Page 5 (GA-0493)
If an agency has “failed to follow the clear, unambiguous language of
its own regulation, we must reverse its action as arbitrary and
capricious.”
Id. at 781-82 (citations omitted) (quoting Pub. Util. Comm’n v. GulfStates Utils. Co., 809 S.W.2d
201,205,207 (Tex. 1991)).
The rules do not facially restrict the Affidavit’s use to immediate family members only.
Section 18,82(a)(3) defines the Affidavit as a form a licensed vehicle storage facility must provide
to an individual who claims the right to possess the vehicle “if the licensee is unable to verify”
that the individual is a member of the vehicle owner’s immediate family. 43 TEX. ADMN. CODE
§ 18.82(3) (2006) (Tex. Dep’t of Transp., Definitions). The definition does not expressly restrict the
use of the Affidavit to immediate family members. The Commission easily could have written the
definition to do so by replacing the phrase “if the licensee is unable” with “in order,” but it did not
do so. Under a reasonable reading of the definition, both an immediate family member who is
unable to prove such status and any other authorized representative (who by definition could never
prove family member status) may use an Affidavit to obtain the vehicle. See id.
Likewise, section 18.92 does not on its face limit the Affidavit’s use to members of the
vehicle owner’s immediate family. See generally id. 5 18.92 (Tex. Dep’t of Transp., Technical
Requirements). Rather, section 18.92 enables a vehicle owner’s authorized representative to obtain
possession of the vehicle upon presentation of the Affidavit. See id. 5 18.92(a)(3). In addition, a
member of the vehicle owner’s immediate family is granted the same rights to claim the vehicle as
the owner by presenting valid identification and one of the seven types of proof listed in section
1%92(a)(3). See id. 5 ~S.~~(~)(~);C~TEX.OCC.CODEA~. @2303.002(5)(B), .153(a)(6) (defining
“owner” and expressly recognizing that a member of a vehicle owner’s immediate family may claim
a stored vehicle). An immediate family member is likely to have access to at least one other
acceptable type of proof, but subsection (a)(3)(G) in particular provides persons other than
immediate family members-which Quimby suggests is standard practice-with a method by which
to claim the vehicle. See Quimby, 10 S.W.3d at 779.
Consequently, we conclude that the Department has reasonably construed the Commission’s
rule, in a manner not inconsistent with the rule’s plain language, to allow individuals outside the
vehicle owner’s immediate family to use the Affidavit. A licensed vehicle storage facility may
release a stored vehicle to an individual who is not a member of the vehicle owner’s immediate
family but who presents a properly completed Aftidavit~and who otherwise complies with section
18,92(a)(3)‘s requirements.
The Honorable Robert E. Talton - Page 6 (GA-0493)
SUMMARY
The Texas Department of Transportation reasonably has
construed title 43, sections 18.82(3) and 18.92(a)(3)(G) of the Texas
Administrative Code to permit individuals who are not members of
a vehicle owner’s immediate family to claim the stored vehicle using
an Affidavit of Right of Possession and Control. A licensed vehicle
storage facility may release a stored vehicle to an individual who is
not a member of the vehicle owner’s immediate family but who
presents a properly completed Affidavit and who otherwise complies
with section 18.92(a)(3).
Very truly yours,
A- GREG OTT
Attorney General of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143455/ | - :..,
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
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,ATTOIWBX GEM2.U OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143464/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
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aatlaar and
WedYe LIDsx tw o a q nr u*tfo n,lma th o u g hh e eo n
‘a & ia Adtlltla a to p a llsh lx lgth e ootiee ia a
nmfspap&rand mkfng his wtura for so d9l.n~.
“The 8herlff dingwe vlth thesea9ntentlon.0,
mkda8kuanoplnioainrqprcltot&m6tter. The
lhsriif aontewts that the foe of 41.00 f9r adver-
Us* ,aovaw the nuvspqtar sdvertlsing 6ad wturn,
rhtah ho has pwperlr 8tteanbd to. II0 further aoa-
tads that,bder AAla 39331,lB aaenbd in 1937,
he ia editled to 41.00 foe fo rlendlagor porting raah
:E ~lmtlaes he we wqulwd b7 law to llth epwt
r
Ha feelstht our bgislattuw aevor intend-
ld to & q tt.lw ia Tex a to
a shorlfro fu y aotant7 s
perform ssrvlee~ for parthr to a *iv&l suit - sald
puties not be* The stbto of Texes aor sny of its
polltiml sub-divlslons - for vhlah hs wtald aot ba
proper17aammuated. ltathewfow fe*l,athat whoa
the Ls slaturewnded Artialo 3933 md ooatlnued
to inae ab ir sad rrtlole ths r0ii0dgt Vostiag
amy othsr notlaos wqukw4 by lam and not othsnlse
pwvlded for.... 41.00',t&t it was the iatantion of
thoLegfsl&ure tbtoff;0*nwol&dba crmporlmted
for posting or mdl4 tbo rot%aes in questionroeord-
l&y, end that hs Is j tiilodia w?.ng $1.00 far
-0h .0r ub a0tieat. rThe88 aotieos ma7 be lithor
p o sted or mlla d,tinder t& la y,b uthe IsNq ulnd to
do oas or tha sthar.)Ths eho*tfffwthsr at&ends
t&t, rhilo this rrtflele stipalates &OO for 9ostSsq
u's a&art1seMatserula, uslagt?mwr~'a&*rtlr.-
mats* ta tha plural,this PefWs @al7 toPOst the
a
504
EoaorablolI.0,WelMioa,Psga 3
!
notices in the eventtht publlaatlonb7 navspap8r
'e 18 not hde,
'With the sxasptionof the aase abeve wfornd
to, City of San Antonio vsr Caupboll,56 8.Y. 130,
vhlah 18 a vw7 old aa14~ the artlalo in quntion
hwlng been mea&d withoutu la splto of uld
esse, vo find no s~thotit.i*soa this questloa. It
oacurs to us tlmt tin positionof tha sheriffis
roll wua lfithnfemaeo to tba intent of the Logis-
latuw U&no offloorweulbdorork la & aitilsult
for partiesothar thaa the btate snd its sabdlririoaar
But it lgpttawto us that tha quostlan18 kssd an-
tiluly upan aonstruatloa af the artialo of ths sktuto
fLrfng the fees, thet is Art. 3933. It oeours to us
that tjm pwvisl9a dare set out, ‘Posting ary other
~6iaes wqulwd by l&v snd not othervlseprovided
..,.@.OOt~,might be eonstrued to mean oft&w that
tha sherirrwouldwaalve onl7 $1.00for sll suah
notloespostad,or~thrtthe sheriffvould maelvo
41.00 for web suah notieoposted. Ia ame8 vhwe
the amber at notlaeswuld bo large, thfr vould hard-
17 ssemproper, howover. In sams aasesof reaord,
St&ahnotlaesbar. beenknow to AUIUbttI'low thana
bamdmd, la vhleh lveat st&tlomr7 8nd stampsvould
not be paid for, or begia to be, fmm the ~1.00 foe,
fr the80 aottaesWON msfled. ff ported notions
wfers to notlaesmailed - i.e. pasted by rll, it
vould rppu tha ahis srtloleJ applies.
"All thh rerolvrs1tse1r Into the follav
puertlans,vblahvo vould lppreoiatiyour aaswr I
"XXIa alvll suit, lnvolv~ no subdlvlslo8of
the stab, vhon tbm 8herlff bus dvortllbd tb or-
dor ,pf sole by aevspaper md ndi propar wtura, 18
the shtmfff mtitlod to aoapensdtoaror msil%ngaut
notloos to putlea as mmlral by lsv,under Astl-
ale J$O8, R.O.8. in a&Sltlan to the 41.00 allovedfar
advmtlsiag uader tha pwYisloas of Art. 39Jl) R.C.8.T
If so, 18 be sllovodoal7 #l&O for nil- out all
sue& notionsmqtirod, or Is ha mtitled to Cl.00 for
uah aoU0~ so posted by wilt
505
f Hononbla M.D. &erson, Page 4
Artiala 3808, Varnonts &mot&ad Zeus civil ata-
tutas, wuls aI rollov8r
%ha time and p&a4 of sale of real lskta
uadar umutlon, order of ula, or vaaditfoni
axpo~s, shsll be drartlrad b7 the offioarby
hwind tha aotloe tharaofpubllshadIn tba Bgllsh
langwga aaaa a weak for thwo samaautin vnks
praaading suah sala, In sow aawpapar published
la arid amInt . %ha first of 8ald publlutlons
shall appear not lass than *ant7 dam lmsdiato-
17 praamlingtha day of sale, 8afd aotlaa shsll
aoat8.b& statawat of the 8uthorIt7b7 virtw
oflmah the wlelstobam8Alo,thotsma of lrvy,
and the tims aad pbaa of ssle8 it ah11 also mm-
t&Ii%a brief dasariptlonof tha proparw to ba
sold, snd skll glva tha msber of awes, odglwl
survcbf, localityIn tha tountJ,snd the - by
vhioh tha land is rest generallyknown, but it
ahall not be waasuq for It to aontainfield
aotas. Publlsbarsof nawpapars s&all woal~a
for publlrbingsa.td sales Tlity cents par spusra
tor the fiiratlnsartlanan4 thirty aants par
sqww for sub8aquentlnrartlons,to ba taxed snd
psi4 as other oostsl for suah publlartloa,ten
llnas shallaonstltutaa squara,s&l t&a body of
no such ulvertlsaaant shall be printedin larger
type t&m bnviar. No fee for 8dvarUsing say
pwparty la a navspaparunder ths pwvIslons of
this srtialasbsll axaaad tha mm of five dollars.
If tbasa bo no navspaparpublishadin the bounty,
or aoaa vhiah will publish the notlae of lla ior
the aoapawatlaa hawln fixed,the offlaar skmll
them post suah notioo la vrltirrg ia thwa pub110
plnas ia the aounty,oao ofrhlah shsll be rt the
6ou~tlwusa door of suah aountr.for 8t lwst tvaa-
HonorebloX.D. lherson,r-0 $
Artiole 3933r Veraan Amoteted %xas Oiril St+
tutas, m8ds la part u follorsr
%haritfsubitoonstabl*s
shallnoelve ths
follolrlqfees,
I....
"Levyiagsaoh usaut1aa..**.*......... l*ofJ
of uaoutfaa.......r..........
rltaturn t1.00
l
....
lPostisg the rdrutisamntrfor aal*
under %a14~nutl~ or an7 order of s8l*.,.&OO
0tao~nhlee8
rvlso wQV~~~..*,l.oo
I)
l .,.
%011*oting nomy oa u1 exwutioa or uL ardor
of 834, vhan the 88m Is nde by a sale, for
first UEIOlbmdwd Dollars ($100)or
for tIw sw3ml We Xtmc%md
til sum ovafhro &abed
*sow Oaa Thou- Dol-
of ata pwr aant.
. a
(Undas~S&~&w )
Mtiel8J8U, poori&* for %n wstlm q' of
aotloesa% the wwthousa dooraad other pubrio p la za s,
lto.
Tba awe ofbrurdvs.?ultoa,U Ivlo6l,hald#
we
'Th~sgmedsktmwatupeawhlahtlw~~-
wao 8utuittadla thisemwt show tbt the twstaa
HonorableM.D. Emerson,Pm 6
i
gave notlaa of ths tlm tams, and plaao or
sale, aad of tb pram& to be sold ls fol-
lowar By postln8tvo prlnteQ oapias of *u&t
aotfaa on the boardsin the oontdor of t&w
aourt-houseia the oity of Austiia, oauuty0r
Travis, aad &tat0 of Texas, raid prlntad ao-
tiubaLng8bout10 awhas tnlangth,aad2
lnohosSnbbnadth,lUoaloba%ngmda~ttho
wst fwat door of arid owrt-house, vbw all
mbllo Wea lntho aoumt~oftnvlsmausu-
8l4 ride, usl the boasda oa vhloh the aotlaar
vow post8d ww b tb oor?ldorof the blld-
iag,BboIat4ofHtfmm#afmmtdooF,and
In opanvlbvfraathadoorand fustattbs
side of the sWnrylu&agto tha court-FooRs
in tb saaond stow. 9habardsamvhlahthosad
not1008vesaplwad wereplwldod w tb# row%@
of Tnvir for tbr postiag ai aotlo88 of 8tmr--
ifist sales, tax-sales,all notioas ia pro-
bte matten,md tilpubllaaotlaesroqulmd
b7 lrv to bs posted at the oomt-hmu door,
and suah boards had baaa prtwided aad rued fop
suah purposom,standIngin tha sew p&80 for
muIy JI8M, ud mtIaar of trwtoas’ Sal** had
alwap oustomrll~ batm postedon thaso boards.
totlaaoof thL8 a&water vam aavar panrlttad
to be po8tadon the door or wlls of thm hauoa,
but 0n th4 beau furnlah0d and \ued ror suoh
purposas . These aotiaosvan posted, as stat-
ad,oaDaaambar211887,mmtbaa3Od4sba-
row the da7 of da .......In pwvldlng for
thopostlng &the court-housedoor lath doad
of trustunderoozuldantion, the prtles
doubtlesslntondad that tha mtlaa shmld be
stuak 9 at the plaao So? postIn@ lo@1 netloas
ln the oltr OfAWua, sllohking thepla6.
vha w l porter rouldmoot lfkalyba sum by
pooyu daslww of pureha la114at bllo
lieaoaeurla the oon8lus2onof tc
la&edjudgaihotriadtha oanbalathat
tha aotlaaoof tha atie were gim fn Meor-
baa4 vlth the terms of tha dud of trust,
aad that it is wmaoasu~ to pbss tspoauv
other qwstlaa in the one. The Judgwat is
aooordlagl7afflmad."
ZonorablaN.D. Ellmon, Pago 7
Wo quot.fwm tin otua of Maloon vs. State, 75
8U 502,es follovsc
'By 'posting as roquhodbylav’ lowsnt
that the notfoesmust ba 8attell7posted tha
raqulsltanumber of &78 8afore tha llootlaaIs
held. Tha Tut that the aotloaen7 have baaa
subsaqwntl toonorbloundovnwuldnotri-
f*ot the VJ ldlty of ths llaatlan. When the
st*tuk nquIn8 t&a aatZoeato b8 poitatiw
da7s bafow tha rleotloa,If tin proofodl)tiu-
rive4 shove tint rrrld po~U.mg did -, t&en
the aourt, as ladlecrtad ln tin ortglml opla-
Ion, is *nthorlsadto toll tbs ury as a quo*-
tlon of law, that tha 1-1 apti m i+r is valid.
lfaquotafwmtha aas0 oiCitfof&aAntanio vs.
Campbell,56 SY 1~0 (citedb7 too ti 7ow Mot) es follovo,
“Th e lsolgnaaatea8pld.m of tha
fo ur th
udgmont,In~lovlag tha MOl8Imod~S sorts
J)4.5q~for 8otloosof tb8 shariff~ssale,k-
a a wea wn wa sm lvida na toa sup p o rsw
th
6harga. The offfoar tastlfiad,'I also &u-g-
ad ln the shoriffts aosts, 44.50 for notlaas.t
Plrlntfffiatwduwd as avidaaaathe return
o fJ& Jsheriff,from vh la lb h lpparrs th a h
ta
sar~adthree aopZa8 of notlau of ula on par-
ties, and tha sam nunbsr oa their raspoativs
attorneys,m&lag *lx in 8ll. Xl8 tastiraaj
show that t&l* ahargovu hdapandant of the
ordlury postingof ths advwtlsamant. Ye 8w
uaablo to find my ~rovfsla~lllovlq tha sbr-
lif aoapeaut1oa fw the notloas raqulredto
be given ths pmtlas aad their 8ttoways Sn
such uses, ud thenfon thIr Ita8vm Im-
propor ohm@."
Wo quota ttatha mse o?B&hun. 8-k. 275 S.W.
149, as followr
‘A sheriffis ontitladto sacrhfear &a
the statutes and for thatwasoa
ruthoriso,
tho featthttha fn*Uwadrq smlmp
in sow iastubassor rrJlLaot&or fnst~aes
A
EamorabloX.D.Emsrsan,Pega 8
oumoteator Into l dotlriom oaastrulngthe
statutesauthorlslagth8w f%m L8glslaturt
has onrote th in bill, and has fixed l
muImm sumvhtoh s sheriff18 entitledta
wnlvo la fees,wquirl.a# that the uous bo
paid iatothe eouatytwasury. The Laglala-
tuwhnJs0 aantadlavs regulatwaad
Uglag tha fees of offlaws fwa tlms to
Thsvi8domorumflsdo8ofthaw rots
is nit a mtter for the oourteto 4otamIna.”
wvornd 0 other gwwds la
OpiaiaaHo. O-511of this departmentholdo that
a shariifis ontitledto l fao of onl7 )l.OO for postingthe
notloosof wle Iavolvadi8 ssidfaot sltuatlon and vss not
oatltlodto 84 f-0 for riling notlaeoof 8al.r.We oa-
elosa hewvlth a eon of wZd opiatoafor your oonvanlanoo.
fr vlavof tha fowgolag authorltles,pu sra ra-
speotfullyadvised that it 1s tb oplnlon of thin dopartmnt
that the sheriffvouldaot k latitledto Argo say fsos
s4ar for mlling out t&a four n&loo0 UosorIlmdIn pxr
.
Yours vary truly
ATTOl?HRYclgllBRAtOPTRXAS
KPPfiOVErDEC
16, 1940
WmrAW ' | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150114/ | Electronically Filed
Supreme Court
SCWC-15-0000449
02-MAR-2017
02:57 PM
SCWC-15-0000449
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I,
Respondent/Plaintiff-Appellee,
vs.
CHRISTINA DOO,
Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000449; CASE NO. 1DTA-15-01061)
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Petitioner/Defendant-Appellant Christina Doo’s
application for writ of certiorari filed on January 19, 2017, is
hereby rejected.
DATED: Honolulu, Hawai'i, March 2, 2017.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson | 01-03-2023 | 03-03-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128913/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
April 2 1,2004
Mr. Robert L. Cook Opinion No. GA-01 82
Executive Director
Texas Parks and Wildlife Department Re: Whether the Texas Parks and Wildlife Department
4200 Smith School Road may convey real property or an interest in real property
Austin. Texas 78744-3291 the State received under a court-approved final
judgment “solely for the use and benefit of the .
Department, acting in the Public Trust . only for
public park purposes, for promoting public beach
access, and for off-beach parking” (RQ-0131-GA)
Dear Mr. Cook:
You ask two questions about the authority of the Texas Parks and Wildlife Department (the
“Department”) to convey real property or an interest in real property that the State received under
a court-approved final judgment “solely for the use and benefit of the . Department, acting in the
Public Trust only for public park purposes, for promoting public beach access, and for off-beach
parking.“’
The real property at issue is a 5.9998 acre tract on Galveston Island that the Department
obtained in 1987 following a lawsuit to determine the ownership of a remainder interest in a 68.86
acre tract that included the 5.9998 acre tract. See Mitchell Dev. Corp. of the S. W v. State, No.
296,346 (250th Dist. Ct., Travis County, Tex. Jan. 9,1987) (Agreed Final Judgment at 1,8); Request
Letter, supra note 1, at 2. The 68.86 acre tract had been the property of Mace Stewart, who in 1950
bequeathed a life estate in his “Galveston Island Home” to his wife and children and the remainder
in the same to the State:
[DIpon the death of my child last surviving, such “surface estate” in
the forementioned land shall vest in the State of Texas to be used and
maintained as a Fish, Game, and Oyster preserve and for any other
public purpose the Legislature of the State of Texas, or other
competent State government official, may deem proper for use of
‘Mitchell Dev. Corp. of the S. W. v. Stare, No. 296,346 (250th Dist. Ct., Travis County, Tex. Jan. 9, 1987)
(Agreed Final Judgment at 7-9); see Letter from Robert L. Cook, Executive Director, Texas Parks & Wildlife
Department, to Honorable Greg Abbott, Texas Attorney General, at 1-2 (Nov. 14, 2003) (on tile with the Opinion
Committee, also available of http://www.oag.state.tx.us) [herein&m Request Letter].
Mr. Robert L. Cook - Page 2 (GA-01 82)
same, hereby expressing my desire that the State of Texas, should it
desire to do so, shall call the property the “Mac0 Stewart Public
Park.” The devisees above named shall not have any right or
authority to convey, mortgage, encumber or in any manner dispose of
the “surface estate” referred to in this subsection nor to rent or
lease such surface estate for a longer period, under any one lease or
agreement, of more than five (5) years.
Request Letter, supro note 1, at 1-2 (quoting Will of Mace Stewart). Mitchell Development
Corporation purchased the life estate on the 68.86 acre tract from Mr. Stewart’s heirs, see id. at 2,
but a dispute arose between Mitchell Development Corporation and the State regarding the
ownership of the remainder interest. See id. Under the Agreed Final Judgment (the “Judgment”)
settling the dispute between the parties, the State received
title to and possession of the following tract of land solely for the use
and benefit ofthe Texas Parks and Wildlife Department, acting in the
Public Trust:
Being 5.9998 acres, more or less, out of lots 109 and 117 of the
Section 3 of the Trimble and Lindsey Survey, Galveston Island,
Galveston County, Texas, . . . .
The said 5.9998 acre tract shall be used only for public park
purposes, for promoting public beach access, and for off-beach
parking.
Mitchell Dev. Colp. of the S. II?, No. 296,346 (Agreed Final Judgment at 7-9). The Judgment was
signed by the 250th District Court and approved by representatives of the Mitchell Development
Corporation of the Southwest and the State of Texas. See id. at 10.
You state that an individual who has obtained an option to purchase property adjacent to the
5.9998 acre tract has requested a road easement across it. Request Letter, supra note 1, at 2. Ifthis
individual purchases the adjacent property, he or she will establish a private residence on the land.
See id. “There is currently not an existing road over which the easement is requested.” Id.
Department staff, having reviewed the easement request, “has recommended that [it] be denied
based on the terms ofthejudgment, [the Department’s] resource needs, and [the Department’s] best
interests.” Id.
Given this fact situation, you ask whether the Department may convey an easement over the
5.9998 acre tract to provide road access to a private residence. See id. at 2. You also ask whether
the Department may convey the tract, or an interest in the tract (such as a conservation easement),
“to another person or entity for a use consistent with the uses stated in the judgment, specifically for
‘public park purposes, for promoting public beach access and for off-beach parking.“’ Id. Your
questions assume that the Judgment effectively supersedes the will, and we adopt that assumption
here.
Mr. Robert L. Cook - Page 3 (GA-01 82)
This office typically does not opine on matters that have been resolved “through judicial
action,” where the proper remedy is the appeal of a court order to an appellate court. Tex. Att’y Gen.
Op. No. N-287 (1984) at 2; see Tex. Att’y Gen. Op. No. O-1847 (1940) at 2 (“It is not within the
proper scope of the functions of this department to serve as a quasi appellate tribunal for the
correction ofwhat are conceived to be errors committed by the courts of this state.“). Although the
lawsuit that resulted in the Judgment is long over, we are reluctant to construe the Judgment. C$
Tex. Att’y Gen. Op. No. JM-287 (1984) at 2 (declining to issue an opinion on a court order that is
subject to appellate review and collateral litigation); Tex. Att’y Gen. ORD-560 (1990) at 3 (declining
to determine the availability of certain prison documents that are subject to a court order in an
ongoing lawsuit).
In this case, however, two statutes, sections 13.008 and 13.009 of the Parks and Wildlife
Code, mitigate the need to construe the Judgment. Section 13.008 of the Parks and Wildlife Code
authorizes the Department to receive donations of land and provides for transfer of title in fee
simple:
(a) The department may solicit and receive donations of land
for public purposes and may refuse donations of land not acceptable
for public purposes.
(b) If title to a site has vested in the department and if
ownership of the site is no longer in the best interest of the
department, the department may transfer the title:
(1) to another state department or institution
requesting the site;
(2) to the donor of the land if the donor
requests the return of the site;
(3) to the United States if it has undertaken the
development of the site for public purposes;
(4) to the grantor ifthe deed to the department
contains a reversion clause . ;
(5) to any legally authorized entity if the
property is to be used for public purposes.
(c) A two-thiidsvote oftbe [Parks and Wildlife Commission]
is necessary for action taken under this section.
TEX.PARKS&WILD.CODEANN.4 13.008 (Vemon2002); seealso id. 5 11.001(l) (definingthe term
“Commission”). Section 13.009 applies to the Department’s real property generally and authorizes
Mr. Robert L. Cook - Page 4 (GA-01 82)
the Parks and Wildlife Commission’s executive director, with the Commission’s approval, to sell
real property or an interest in real property “if ownership of the real property is no longer in the”
Department’s best interest. Id. 5 13.009(a).
Chapter 34 of the Natural Resources Code, which you cite, see Request Letter, supra note
1,‘at 1, applies only to the lease of, or to granting an easement in, Department-owned land “for
the purpose ofprospecting or exploring for and mining, producing, storing, caring for, transporting,
preserving, selling, and disposing of’ the property’s minerals. See TEX. NAT. RES. CODEANN.
$5 34.002(a), .05 1, ,064 (Vernon 2001). Because you do not ask about granting mineral interests in
the property, chapter 34 does not apply. See Request Letter, supra note 1, at 1.
We conclude first that the Department may not convey an easement over the property to an
adjoining property owner. Section 13.008 applies only to the transfer of title to donated property.
See TEX.PARKS&WILD. CODEANN. 9 13.008(b) (V emon 2002). The sale of an easement is not a
transfer oftitle, but of an interest in the property. Consequently, section 13.009, which permits the
executive director to sell an interest in real property if owning the property is no longer in the
Department’s best interest, controls the situation. See id. § 13.009(a). You have not asserted that
owning the easement interest is no longer in the Department’s best interests; indeed, you indicate
that the Department’s staff has recommended that the easement request be denied based on the
Department’s best interests. Request Letter,supra note 1, at 2. Assuming, therefore, that conveying
the easement would not be in the Department’s best interest, the Department has no statutory
authority to convey it. Even if the Department determined that the conveyance would be in its best
interest, a court may find that the conveyance would not comply with the terms of the Judgment,
which restricts the land’s use to “public park purposes . . . promoting public beach access, and . .
for off-beach parking.” Mitchell Dev. Corp. of the S. K, No. 296,346 (Agreed Final Judgment at 9).
We conclude second that the Department may convey the tract under section 13.008 or an
interest in the tract under section 13.009 “to another person or entity for a use consistent with the
uses stated in” the Judgment, but only if the Department has determined that owning the site or the
interest is no longer in the Department’s best interest. Request Letter, supra note 1, at 2; see TEX.
PARKS& WILD. CODEANN. $4 13.008(b), .009(a) (V emon 2002). Unless the Department has so
concluded, it may not transfer the property under section 13.008 to a “legally authorized entity” to
use for public purposes. See TEX. PARKS& WILD. CODEANN. 5 13.008(b)(5) (Vernon 2002).
Likewise, unless the Department has so concluded, it may not sell the property or an interest in the
property under section 13.009. See id. 5 13.009(a).
Mr. RobertL. Cook - Page 5 (GA-0182)
SUMMARY
Assuming that the relevant Agreed Final Judgment would
permit it, the Parks and Wildlife Department may not convey an
easement in donated real property to an adjoining property owner
unless the Department has concluded that owning the easement
interest is not in the Department’s best interest, under section 13.009
of the Parks and Wildlife Code. Similarly, the Department may not
convey the donated real property in its entirety under section 13.008
or an easement interest in donated real property under section 13.009
to a person or entity for a use consistent with the Agreed Final
Judgment unless the Department first determines that its ownership
of the property or interest is no longer in its best interest.
very truly yours,
General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128639/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September l&2006
The Honorable Geraldine “Tincy” Miller Opinion No. GA-0456
Chair, State Board of Education
1701 North Congress Avenue Re: Whether the State Board of Education
Austin, Texas 78701-1494 may adopt a rule requiring school textbooks to
meet general textbook content standards as a
condition ofthe Board’s approval; reconsidering
Attorney General Opinion DM-424 (1996)
(RQ-0430-GA)
Dear Ms. Miller:
On behalf of Terri Leo, a member of the State Board of Education (the “Board”), you ask
whether the Board may adopt a rule requiring school textbooks to meet general textbook content
standards as a condition of the Board’s approval.’ You also ask whether the Board has authority to
adopt or reject ancillary materials publishers provide at no additional cost to school districts that
purchase the publishers’ textbooks. See Request Letter, supra note 1, at 1. This office considered
both of these issues in Attorney General Opinion DM-424 and concluded that (1) the Board has no
authority to adopt rules establishing content criteria for textbook approval beyond that contained in
the Education Code and (2) the Board lacks authority to consider ancillary items. See Tex. Att’y
Gen. Op. No. DM-424 (1996) at 7-8. You ask us to reevaluate that opinion. See Request Letter,
supra note 1, at 1.
I. First Issue: Whether the Board may adopt a rule requiring textbooks to meet general
textbook content standards as a condition of Board approval
A. Statutory background
The Board “may perform those duties relating to school districts” that the Texas
Constitution or the Texas Education Code assigns to the Board. TEx. EDUC. CODEANN. 3 7.102(a)
(Vernon 2006). Among the powers and duties section 7.102 of the Education Code assigns, the
‘SeeLetter Tom Honorable Geraldine “Tincy” Miller, Chair, State Board of Education, to Honorable Greg
Abbott, AttorneyGeneralofTexas (Jan. 6,2006) (on file with the OpinionCommittee,also mailabLzat http://w.oag
.state.tx.us);Letter Gem Terri Leo, State Board of Education, District 6, to HonorableGreg Abbott,Attorney General
of Texas (undated) (on file with the Opinion Committee, also available af http:ii~.oag.state.tx.us) [hereinafter
Request Letter].
The Honorable Geraldine “Tincy” Miller - Page 2 (GA-0456)
Board is responsible for establishing curriculum requirements; adopting rules to carry out the
curriculum required or authorized under section 28.002; and adopting and purchasing or licensing
textbooks “as provided by [Education Code] Chapter 3 1 and adopt[ing] rules required by that
chapter.” Id. § 7.102(c)(4), (1 l), (23). The Board’s authority to establish and regulate curriculum
is intertwined with its authority to adopt textbooks.
A school district that offers kindergarten through twelfth grade must offer a “required
curriculum” comprising a “foundation curriculum” and an “enrichment curriculum.” See id. 3
28002(a). The foundation curriculum includes
(A) English language arts;
(B) mathematics;
(C) science; and
(D) social studies, consisting of Texas, United States, and
world history, government, and geography[.]
Id. 5 28002(a)(l). The enrichment curriculum includes
(A) to the extent possible, languages other than English;
(B) health, with emphasis on the importance of proper
nutrition and exercise;
(C) physical education;
(D) tine arts;
(E) economics, with emphasis on the free enterprise system
and its benefits;
(F) career and technology education; and
(G) technology applications.
Id. $‘28002(a)(2). The Board must identify by rule “the essential knowledge and skills of each
subject of the required curriculum , that will be used in evaluating textbooks under Chapter 3 1.”
Id. $28002(c). (The essential knowledge and skills that the Board has identified by rule are known
as the Texas Essential Knowledge and Skills, or “TEKS.“) Section 28002(h) requires the Board,
“in the adoption of textbooks,” to “foster the continuation of the tradition of teaching United States
and Texas history and the free enterprise system.” Id. 5 28.002(h). The Board must adopt rules for
implementing its curriculum-related duties. See id. 5 28.002(i). See generally 19 TEX. ADMIN.
CODE ch. 74 (2006) (Tex. Educ. Agency, Curriculum Requirements).
The Honorable Geraldine “Tincy” Miller - Page 3 (GA-0456)
The Board must review and adopt textbooks for each subject in the foundation curriculum
at least once every six years and for each subject in the enrichment curriculum in accordance with
a schedule that the Board considers appropriate. See TEx. EDUC. CODE ANN. 5 31.022(at(c)
(Vernon 2006); 19 TEX. ADMIN. CODE 5 66.21(a)-(b) (2006) (Tex. Educ. Agency, Review and
Adoption Cycles). When textbooks for a particular subject in either the foundation orthe enrichment
curriculum are scheduled for the Board’s review and adoption, section 3 1.024 requires the Board to
adopt or reject each textbook submitted for consideration. See TEx. EDUC. CODE ANN. § 3 1.024(a)
(Vernon 2006) (stating that each textbook must be placed on a conforming or nonconforming list
or rejected for placement on either list). The Board must reject a textbook that contains factual
errors. See id. § 31.023(b); 19 TEX. ADMIN. CODE § 66.66(c)(3) (2006) (Tex. Educ. Agency,
Consideration and Adoption of Instructional Materials by the [Board]); see also 19 Bx. ADMIN.
CODE 3 66.10(c)(l) (2006) (Tex. Educ. Agency, Procedures Governing Violations of
Statutes-Administrative Penalties) (defining the term “factual error” as “a verified error of fact or
any error that would interfere with student learning”). Under section 3 1.023, the Board is required
to separate textbooks without factual errors into two lists, “conforming” and “nonconforming”:
For each subject and grade level, the. Board. shall adopt
two lists of textbooks. The conforming list includes each textbook
submitted for .fhe subject and grade levet that meets applicable
physical specifications adopted by the Board . and contains
material covering each element of the essential knowledge and skills
of the subject and grade level as determined by the Board
under Section 28.002 and adopted under Section 31.024. The
nonconforming list includes each textbook submitted for the subject
and grade level that:
(1) meets applicable physical specifications adopted by
the. Board. ;
(2) contains material covering at least half, but not all,
of the elements of the essential knowledge and skills of the subject
and grade level; and
(3) is adopted under Section 3 1.024
TEx. EDUC. CODE ANN. $ 31$23(a) (Vernon 2006). The Board adopts or rejects textbooks and
determines whether to place accepted textbooks on the conforming or nonconforming list by majority
vote. See id. § 3 1.024(a).
Section 3 1.024 requires the board to provide the conforming and nonconforming lists of
adopted textbooks to each school district. See id. 8 3 1.024(b). The nonconforming list must include
the reasons an adopted textbook is ineligible for the conforming list. See id. Each school district
then decides which textbooks to purchase. See id. 8 3 1.101(a); 19 TEX. ADMIN. CODE 5
66.104(a)-(d) (2006) (Tex. Educ. Agency, Selection of Instructional Materials by School Districts).
The Honorable Geraldine “Tincy” Miller - Page 4 (GA-0456)
B. Analysis
An administrative agency such as the Board has “those powers that the Legislature confers
upon it in clear and express language.” Tex. Natural Res. Consewation Comln’n v. Lakeshore Util.
co., 164 S.W.3d 368, 377-78 (Tex. 2005). The authority given to the Board by the legislature
concerns “those duties relating to school districts assigned to the [Bloard by the constitution of
this state or by this subchapter [Education Code chapter 7, subchapter B] or another provision of’
theEducationCode. TEX.EDUC.CODEANN. §7.102(a)(Vemon2~06). Inadditiontothese express
powers, an agency like the Board has those implied powers that are reasonably necessary to carry
out the responsibilities the legislature has expressly bestowed. See Pub. Util. Comm ‘n, 901 S.W.2d
at 407 (quoting Sexton v. Mount Olivet Cemetery Ass’n, 72~0 S.W.2d 129, 137-38 (Tex.
App.-Austin 1986,writreP dn.r.e.); KawasakiMotorsv. Motor Vehicle Comm’n, 855 S.W.2d792,
798 (Tex. App.-Austin 1993, writ denied)); accordPub. Util. Comm ‘nv. City Pub. Serv. Bd. ofSan
Antonio, 53 S.W.3d 310, 316 (Tex. 2001).
The Board has significant statutory authority over textbooks and textbook content in the
adoption process. First, the Board must identify the TEKS standards by which all submitted
textbooks will be judged. See TEX. EDUC. CODE ANN. 5 28.002(c) (Vernon 2006). Second, the
Board must evaluate whether each textbook submitted (a) contains factual errors and (b) meets
physical specifications that theBoardhas set. See id. § 31.023(a)-(b). Third, of those textbooks that
have no factual errors and meet the established physical standards, the Board must place the books
on either the conforming or nonconforming list. See id. 5 3 1.023(a). Fourth, “in the adoption of
textbooks” the Board must “foster the continuation of the tradition of teaching United States and
Texas history and the free enterprise system.” Id. § 28002(h). Because these are the only statutory
provisions that give the Board authority over textbooks, the Board’s authority over textbook content
must fall within one of these powers.
We accordingly conclude that the Board may adopt general textbook content standards to the
extent such standards fall within the express powers granted by the Education Code and those
implied powers necessary to effectuate its express powers. The Board has express authority to adopt
applicable physical standards with which textbooks must comply and the essential knowledge and
skills of each subject of the required curriculum that will be used in evaluating textbooks. The Board
must evaluate each textbook for compliance with the physical standards and the TEKS, must
ascertain whether the book contains factual errors, and must consider whether the textbook fosters
“the continuation of the tradition of teaching United States and Texas history and the free enterprise
system.” See id. 3s 28.002(h), 3 1.023(a)-(b); see also 1~TEx. ADMIN.CODE 5 66.66(c) (2006) (Tex.
Educ. Agency, Consideration and Adoption ofInstructional Materials by the [Board]). To the extent
Opinion DM-424 is read or applied inconsistently with this conclusion, that opinion is overruled.
II. Second Issue: Whether the Board may adopt or reject ancillary materials
You also ask whether the Board may review and adopt or reject “ancillaries provided by
publishers at no additional cost to school districts that adopt their textbooks.” Request Letter, supra
note 1. at 1.
The Honorable Geraldine “Tincy” Miller - Page 5 (GA-0456)
The Board’s jurisdiction extends to the review of “textbooks.” See TEX. EDUC. CODEANN.
$5 31.0222.024 (Vernon 2006) (concerning textbook review, placing textbooks on lists, and
adoption). Section 3 1.002 of the Education Code defines the term “textbook” to mean “a book, a
system of instructional materials, or a combination of a book and supplementary instructional
materials that conveys information to the student or otherwise contributes to the learning process,
or an electronic textbook.” Id. 5 3 1.002(3). Although the components of the definition, such as “a
system of instructional materials” and“supplementary instructional materials” are not further defined
by statute, the statutory definition of “textbook” does not expressly refer to ancillary materials.
Instead, ancillary materials are referenced in section 3 1.15 1(a)(3), which sets out publishers’
and manufacturers’ duties. See id. 8 31.151(a)(3). Under section 31.151(a)(3), publishers and
manufacturers must “provide any textbook or ancillary item free of charge,in this state to the same
extent that the publisher or manufacturer provides the textbook or ancillary item free of charge to
any state, public school, or school district in the United States.” Id. (emphasis added); accord 19
TEX. ADMIN. CODE 5 66.69 (2006) (Tex. Educ. Agency,~Ancillary Materials).
We must presume that the legislature intended the entire statute to be effective and
purposefully used every word. See TEX. GOV’T CODEANN. 5 3 11.021(2) (Vernon 2005); see also
Tex. Workers’Camp. Ins. Fundv. Del Indus., Inc., 35 S.W.3d 591,593 (Tex. 2000) (citing Perkins
v. State, 367 S.W.2d 140,146 (Tex. 1963)) (”every word in a statute is presumed to have been used
for a purpose”). In general, where the legislature has used different words, we presume it intended
to convey different meanings. Cf: Guarantee Mut. Lif Ins. Co. v. Harrison, 358 S.W.2d 404,
40607 (Tex. Civ. App.-Austin 1962, writ rerd n.r.e.) (rejecting the contention that the phrases
“of the same classes’? and “of substantially the same grade” in one statute means the same as the
phrase “similar securities” used in another statute).
Largely for this reason, Opinion DM-424 states that “the reference to ancillary items in
section 3 1.15 1 suggests that the legislature envisioned” that publishers may supply schools with
“items not within the definition of ‘textbook.“’ Tex. Att’y Gen. Op. No. DM-424 (1996) at 8.
Moreover, assuming that publishers provide ancillary materials free of charge, the opinion concludes
that “the board’s authority to adopt or reject textbooks [does not extend] to consideration of ancillary
items provided to school districts free of charge.” Id. “Because the board is to select or reject
textbooks from the books submitted,” the opinion continues, “the submitting party may determine
what materials are to be included for review” and the Board may consider only the materials
submitted in deciding whether to adopt or reject a textbook. Id.
It is possible, as the opinion suggests, that the phrase “supplementary instructional materials,”
which is included within section 31.002’s definition of “textbook,” and the phrase “ancillaty
materials” are distinguishable because the words “supplementary” and “ancillary” may have slightly
different connotations. The word “supplementary” connotes something “additional to what is
normal, ordinary[,] or usual.” Cf: B out h er v. Tex. Tpk. Auth., 317 S.W.2d 594, 597 (Tex. Civ.
App.-Texarkana 1958, no writ) (defining the term “supplemental”). By contrast, “as used in law,”
the word “ancillary” designates or pertains to “‘a document, proceeding, officer or office, etc., that
is subordinate to, or in aid of, another primary or principal one.“’ Am. Refractories Co. v.
The Honorable Geraldine “Tincy” Miller - Page 6 (GA-0456)
Combustion Controls, 70 S.W.3d 660,663 (MO. App. 2002) (quoting Herhalser v. Herhalser, 401
S.W.2d 187, 193 (MO. App. 1966)).
But Opinion DM-424 wrongly concludes that the terms “supplementary instructional
‘materials” and “ancillary materials” are mutually exclusive. See Tex. Att’y Gen. Op. No. DM-424
(1996) at 8. First, section 31,151(a)(3) 1s an example of a typical “most-favored-nations” contract
clause’ and, as such, it is wholly unrelated to the process by which the Board designates textbooks
as conforming, nonconforming, or rejected. The phrase “ancillary materials” is thus a red herring
in considering whether the statutory definition of the term “textbook” includes such materials for
purposes of the textbook review process. Moreover, the opinion wrongly suggests that ancillary
materials are textbooks for purposes of section 3 1.002(3) only ifthey are supplementary instructional
materials. The opinion should instead have considered whether any of the items comprising the
statutory definition of the term “textbook’-“a book, a system of instructional materials, or a
combination of a book and supplementary instructional materials that conveys information to the
student or otherwise contributes to the learning process, or an electronic textbook’-include the
kinds of materials that the Board, in posing this question, considers ancillary materials. TEX. EDUC.
CODE ANN. 5 3 1.002(3) (Vernon 2006). For example, materials considered ancillary for purposes
of section 3 1.15 l(a)(3) may be part of “a system of instructional materials” for purposes of the
statutory definition of “textbook” and thus be textbooks within the Board’s review jurisdiction. See
id. Alternatively, certain anci&ry materials may be “supplementary instructional materials” for
purposes of the definition of “textbook” and thus be within the Board’s review jurisdiction. See id.
As Opinion DM-424 admits, the statutory phrase “ancillary materials,‘: given its ordinary meaning,
“would appear to come within the broad definition of ‘textbook.“’ Tex. Att’y Gen. Op. No. DM-424
(1996) at 8 (footnote omitted).
Opinion DM-424 further errs in suggesting that it is textbook publishers, not the Board, who
determine what materials are textbooks subject to the Boards reviewjurisdiction. See id. (indicating
that “the submitting party may determine what materials are to be included for review”). The Board
is authorized to adopt a reasonable rule clarifying the kinds ofmaterials that are within the definition
of “textbook” by, for example, clarifying the phrases “system of instructional materials” or
“supplementary instructional materials,” and textbook publishers must comply with the rule. See
TEX: EDUC. CODEANN. 5 3 1.003 (Vernon 2006) (authorizing the Board to adopt rules, “consistent
with this chapter, for the adoption of textbooks”). At present, however, the Board has not
adopted any such rule.
‘Cf., e.g., PG&EGas Transmissionv. CityofEdinburg, 59 S.W,3d225,227 (Tex.+pp.--Corpus Cbristi2001)
(considering a most-favored-nationscontractprovision requiring,if the vendor should pay a higher percentage of gross
receipts to any municipalityother than Edinburg,that “this franchiseshall automaticallybe amended to provide for the
payment of such higher percent to the City of Edinburg”), aff’d m relevant part sub nom. S. Union Co. Y. City of
Edinburg, 129 S.W.3d74 (TM. 2003); Tex. Utils. Elec. Co. v. City of Waco, 919 S.W.2d436,438 (TM. App.-Waco
1995,writ denied)(consideringamost-favored-nationscontractprovisionrequiringTexasUtilitiesElectricCo., ifitpays
any municipality other than Waco a 6anchise or street rental fee higher than three percent of gross receipts, to then
increase the percentagepaid to Waco accordingly);Enterprise-Laredo Assocs. v. Hachar’s, Inc., 839 S.W.2d 822,826
(TM. App.-San Antonio 1992,writ denied)(consideringa most-favored-nationscontractclauserequiringthe vendor,
Enterprise-LaredoAssociates,should it make a later common-area-maintenance-chargeagreementwith a lessee other
than Hachar, to give Hachar “the benefit of the later and mire favorablearrangement”).
The Honorable Geraldine “Tincy” Miller - Page 7 (GA-0456)
In any event, whether particular materials considered ancillary for purposes of section
3 1,151(a)(3) are textbooks within the Board’s review jurisdiction is a question requiring the
resolution of fact issues and is not, therefore, amenable to the opinion process. Cf: Tex. Att’y Gen.
Op. No. GA-0156 (2004) at 10 (stating that fact questions,,cannot be answered in the opinion
process). In the absence of a Board rule reasonably clarifying the items comprising the defmition
of “textbook,” we cannot conclude that ancillary materials are textbooks subject to Board review as
a matter of law. Because it incorrectly analyzed the statutes with respect to this issue, we overrule
Attorney General Opinion DM-424 to the extent it is, inconsistent with this opinion.
The Honorable Geraldine “Tincy” Miller - Page 8 (GA-0456)
SUMMARY
Attorney General Opinion DM-424 is overruled to the extent
that it concludes that the statutory definition of the term “textbook”
cannot include materials that are ancillary for purposes of section
3 1.151 (a)(3) of the Education Code. See Tex. Att’y Gen. Op. No.
DM-424 (1996). Opinion DM-424 is further overruled to the extent
it suggests that textbook publishers, not the Board, determine what
materials are textbooks within the Board’s review jurisdiction. The
Board may adopt a reasonable rule further defining the components
of the statutory definition of “textbook” by, for example, defining
the phrase “system of instructional materials” or “supplementary
instructional materials,” and textbook publishers must comply with
the rule. Whether a particular material considered ancillary for
purposes of section 3 1.151(a)(3) is a textbook within the Board’s
jurisdiction to adopt or reject is a question of fact.
The legislature has provided the State Board of Education
with certain specific authority over textbooks and their content. First,
the Board must identify the TEKS standards by which all submitted
textbooks will be judged. Second, the Board must evaluate whether
each textbook submitted (a) contains factual errors and (b) meets
physical specifications that the Board has set. Third, of those
textbooks that have no factual errors and meet the established
physical standards, the Board must place the books on either the
conforming or nonconforming list. Fourth, “in the adoption of
textbooks” the Board must “foster the continuation of the tradition of
teaching United States and Texas history and the free enterprise
system.” The Board may adopt general textbook content standards
that fall within these statutory authorizations, but the legislature has
not authorized the Board to regulate textbook content to the extent
such regulation falls outside these statutory provisions. To the extent
Attorney General Opinion JIM-424 is read or applied inconsistently
with this opinion, it is overruled. See Tex. Att’y Gen. Op. No.
DM-424 (1996).
eneral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
The Honorable Geraldine “Tincy” Miller - Page 9 (GA-0456)
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128645/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 15,2006
The Honorable Joel D. Littlefield Opinion No. GA-0450
Hunt County Attorney
Post Office Box 1097 Re: Whether a county clerk is authorized, required,
Greenville, Texas 75403- 1097 or permitted by statute to file and record a common-
law copyright (RQ-0449,GA)
Dear Mr. Littlefield:
A county clerk may record only documents that are authorized, required, or permitted by
statute to be recorded in the clerk’s office. See Tex. Att’y Gen. Op. No. JC-0156 (1999) at 2
(quoting Tex. Att’y Gen. LO-98-O 16, at 3). You ask whether a county clerk is authorized, required,
or permitted to file and record a common-law copyright.’
An individual has presented for recording to the Hunt County Clerk a document labeled
“Common[-]Law Copyright Notice.“2 In it, the individual seeks to reserve all “common-law
copyright” rights “of trade-name/trademark, TIMOTHY SHAMELL NEWSOMEO.” See Copyright
Notice attached to Request Letter, supra note 1. You do not believe that the clerk has authority to
accept the document for recording, and you seek our confirmation. See Request Letter, supra note
1, at 1.
Local Government Code section 19 1.OO1 requires a county clerk to “record . . . the contents
of each instrument that is filed for recording and that the clerk is authorized to record” and to keep
the records “properly indexed and arranged.” TEX. Lot. GOV’T CODE ANN. 5 191.001(c)-(d)
(Vernon 1999); see also TEX. CONST. art. V, 5 20 (stating that the Legislature shall prescribe the
county clerk’s duties). Chapter 192 lists the documents that a county clerk is required to record:
0
“each deed, mortgage, or other instrument that is required or
permitted by law to be recorded,” TEX.LOC. GOV’T CODEANN.
TV192.001 (Vernon 1999);
‘See Letter from Honorable Joel D. Littlefield, Hunt County Attorney, to Honorable Greg Abbott, Attorney
General of Texas (Feb. 13, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
2See Letter from Timothy Shame11Newsome to Honorable Linda Brooks, Hunt County Clerk (Jan. 11,2006)
(attached as Exhibit A to Request Letter).
The Honorable Joel Littlefield - Page 2 (GA-0450)
subdivision plats, see id. § 192.0015;
0
military discharge records, see id. 5 192.002(a) (Vernon Supp.
2005);
0
certain probate records, see id. $ 192.005 (Vernon 1999);
0
records of the county court in civil and criminal cases and
probate matters, see id. 5 192.006(a); and
0
releases of filed instruments, see id. 5 192.007.
A county clerk has a ministerial duty to record all written instruments that are statutorily
authorized, required, or permitted to be filed in the clerk’s office. See Tzkrrentine v. Lasane, 389
S.W.2d 336, 337 (Tex. Civ. App.- Waco 1965, no writ). But a county clerk is prohibited from
filing and recording a document that no statute authorizes, requires, or permits the clerk to accept.
See Tex. Att’y Gen. Op. No. JC-0156 (1999) at 2; see also City ofAbiZene v. Fryar, 143 S.W.2d 654,
657 (Tex. Civ. App.- Eastland 1940, no writ) (stating that a county clerk had no authority to file or
record certain unstamped deeds of trust and therefore could not file or record such documents); Tex.
Att’y Gen. Op. No. DM-389 (1996) at 3 (advising county clerks not to file documents generated in
or for a “purported state or local court not . . . named in [the] constitution or statute”); Tex. Att’y
Gen. LO-98-O 16, at 6 (concluding that a county clerk is not authorized to accept documents labeled
“refusal to pay property taxes,” “common law lien,” and “declaration of person being a sovereign”).
No Texas statute authorizes, requires, or permits the filing and recording of a common-law
copyright notice. In addition, no federal law creates a role for the county clerk in the federal
copyright registration process. See UNITED STATESCOPYRIGHTOFFICE,COPYRIGHTBASICS, at
www.copyright.gov/circs/circl .html (last visited July 17,2006).
We consequently conclude that a county clerk is not authorized, required, or permitted to file
and record a common-law copyright. Without such authority, a county clerk is prohibited from filing
and recording such a document.
The Honorable Joel Littlefield - Page 3 (GA-0450)
SUMMARY
A county clerk may not file and record a common-law
copyright.
Very truly yours,
Attorne&eral of Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128662/ | ATTORNEY GENERALOF TEXAS
GREG ABBOTT
May l&2006
The Honorable David Swinford Opinion No. GA-0433
Chair, Committee on State Affairs
Texas House of Representatives Re: Validity of a charter provision that permits
Post Office Box 2910 a home-rule city to amend its charter by
Austin, Texas 78768-2910 ordinance (RQ-0416-GA)
Dear Representative Swinford:
You ask about the validity of a charter provision that permits a home-rule city to amend its
charter by ordinance.’ Though this office generally refrains from construing municipal charters and
ordinances, we do so when, like here, the question is whether a charter provision or ordinance is in
conflict with state or federal law. Tex. Att’y Gen. Op. No. GA-0217 (2004) at 4-5.
Your question concerns the charter for the City of Dumas (the “City”). A letter to you from
the Dumas city manager states that in 1993 the City’s voters, “in a duly called city charter
amendment election, approved an amendment to the home rule charter which purports to give the
city commission the authority to amend the charter by ordinance:“* As a result, the City’s charter
now reads in relevant part:
Amendments to the charter may be framed and proposed as (a) in the
manner provided by law, or (b) ~byordinance ofthe city commission
containing the fulltext of the proposed amendment and effective
upon adoption, or(c) by recommendation of a charter commission by
ordinance, or (d) by petition of 25 percent or more of the registered
voters of the city.
City of Dumas Letter, supra note 2, at 1. The City has used this provision to amend the charter by
ordinance on one occasion, in 1995, “to establish the current system of staggered, three-year terms
for city eommissioners.” Id. at l-2. Thus, the City asks the following two questions:
‘Letter from Honorable David Swinford, Chair, Committee on State Affairs, Texas House of Representatives,
to Honorable Greg Abbott, Attorney General of Texas (Oct. 27, 2005) (on tile with the Opinion Committee, aI&
available af hitp:Nwww.oag.state.tx.us) [hereinafter Request Letter].
ZLetter i?om Vince DiPiazza, City Manager, City of Dumas, to Honorable David Swinford, Chair, Committee
on State Affairs, Texas House of Representatives, at 1 (Sept. 30,2005) (attached to the Request Letter) [hereinafter City
of Dumas Letter].
The Honorable David Swinford - Page 2 (GA-0433)
1) 1s the provision in the city charter granting authority to the city
commission to amend the charter by ordinance legal?
2) If the referenced provision is illegal, what does that do to the
subsequently enacted charter provision establishing terms of offtce
for the city commission?
Id. at 2.
The City is a home-rule municipality, see id. at 1 (questioning the validity of an amendment
to its home-rule charter), and as such it “is empowered to adopt or amend its charter in any manner
in which it may desire, consistent and in accordance with the state constitution and the general laws
ofthis State.” Burch v. City ofSanAntonio, 518 S.W.2d 540,543 (Tex. 1975); see TEX.CONST.art.
XI, $5 (authorizing and governing the creation of home-rule municipalities). Article XI, section 5
of the Texas Constitution authorizes home-rule municipalities, “by a majority vote of the qualzj?ed
voters of said city, at an election held for that purpose, [to] adopt or amend their charters.” TEX.
CONST.art. XI, § 5 (emphasis added). That is, this provision’s language requires that each
amendment to a city charter be submitted to city voters at an election called for that purpose. See
TEX. Lot. GOV'T CODE ANN. $5 9.004, ,005 (Vernon 1999) (implementing article XI, section 5
requiring charter amendments to be submitted to city voters). Here, the charter was amended to
permitthe Cityto amendits charterwithout submitting proposed amendments to the qualifiedvoters,
which amendment contradicts the plain language of the constitution. Thus, in answer to your first
question, the City charter provision granting authority to amend the charter by ordinance is invalid
because it is inconsistent with the constitutional requirement that all charter amendments be adopted
by a majority of a city’s qualified voters.
The City also asks about the effect on the charter amendment adopted by ordinance providing
for staggered terms for its commissioners-if the amendment by ordinance provision is invalid.
See City of Dumas Letter, supra note 2, at 2. Municipal laws inconsistent with state law are void
ab initio. City of Wink v. GrzyJth Amusement Co., 100 S.W.2d 695, 698 (Tex. 1936). The City
therefore had no authority in 1995 to amend by ordinance the commissioners’ term limits. See id.
at 698. Consequently, the City’s charter was not amended in 1995; rather, the charter continues to
mandate commissioners’ term limits as it did prior to the invalid 1995 amendment. No validating
legislation changes this result. See Majhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex.
App.-Dallas 1989, writ denied) (validation statutes may not cure constitutional defects).
The Honorable David Swinford - Page 3 (GA-0433)
SUMMARY
An amendment to a home-rule city charter that purports to grant
authority to the city to amend its charter by ordinance is void because
it is inconsistent with article XI, section 5 of the Texas Constitution,
which requires all charter amendments to be approved by a majority of
qualified voters in the city. Thus, a charter amendment adopted by
ordinance is invalid.
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4128679/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 16,2006
Mr. Albert Hawkins Opinion No. GA-04 16
Executive Commissioner
Texas Health and Human Services Re: Whether section 533.035(e) of the Health and
Commission Safety Code, which provides that “a local mental
Post Office Box 13247 health and mental retardation authority may serve
Austin, Texas 78711 as a provider of services only as a provider of last
resort,” applies to both mental health services and
mental retardation services or only to mental
retardation services (RQ-0392-GA)
Dear Commissioner Hawkins:
The Health and Safety Code authorizes the Texas Health and Human Services Commission
and the relevant state agencies’ to “delegate to the local authorities . . . authority and responsibility
for the planning, policy development, coordination, . . . and oversight of mental health and mental
retardation services”inlocalservice areas. See TEX.HEALTH& SAFETYCODEANN. 5 533.035(a)
(Vernon Supp. 2005). Section 533.035(e) of the Health and Safety Code provides that “[i]n
assembling a network of service providers, a local mental health and mental retardation authority
may serve as a provider of services only as a provider of last resort” and only under certain
conditions. See id. 5 533.035(e). You ask whether this limitation applies to both mental health
services and mental retardation services or only to mental retardation services.2
As background to your request, you relate that the legislature extensively amended provisions
governing the delivery of mental health and mental retardation services in House Bill 2292. See Act
of June 2, 2003,7Sth Leg., R.S., ch. 198,2003 Tex. Gen. Laws 611. In particular, you note that
House Bill 2292 amended section 533.035 of the Health and Safety Code to add subsections (e) and
(g). See id. 5 2.74, at 676. As amended, section 533.035(e)-(g) now provides:
‘Prior to 2003, the Texas Department of Mental Health and Mental Retardation (TDMHMR) and its governing
body, the Board of Mental Health and Mental Retardation, administered both mental health services and mental
retardation services. In 2003, the legislature abolished TDMHMR and assigned mental health services to the Texas
Department of State Health Services and mental retardation services to the Texas Department of Aging and Disability
Services. The Texas Health and Human Services Commission supervises both agencies. See Act of June 2,2003,78th
Leg., R.S., ch. 198, 44 1.01-.03, 1.19(a)(2), 1,20(a)(3), 1.26, 2003 Tex. Gen. Laws 611, 61 I-14, 636-38, 641.
‘See Letter from Albert Hawkins, Executive Commissioner, Texas Health and Human Services Commission,
to Honorable Greg Abbott, Attorney General of Texas, at 1, 5 (on file with the Opinion Committee, also available at
http:/lwww.oag.state.tx.us) [hereinafter Request Letter].
Mr. Albert Hawkins - Page 2 (GA-0416)
(e) In assembling a network of service providers, a local mental
health and mental retardation authority may serve as a provider of
services only as a provider of last resort and only if the authority
demonstrates to the department that:
(1) the authority has made every reasonable attempt to solicit
the development of an available and appropriate provider base that is
sufficient to meet the needs of consumers in its service area; and
(2) there is not a willing provider of the relevant services in
the authority’s service area or in the county where the provision of the
services is needed.
(f) The department shall review the appropriateness of a local
mental health and mental retardation authority’s status as a service
provider at least biennially.
(g) The department, together with local mental health and mental
retardation authorities and other interested persons, shall develop and
implement a plan to privatize all services by intermediate facilities for
persons with mental retardation and all related waiver services
programs operated by an authority. The transfer of services to private
providers may not occur on or before August 3 1, 2006. The plan
must provide criteria that:
(1) promote the transition of services to private providers
in a manner that causes the least disruption practicable to the
consumers of those services;
(2) ensure the continuation of services at the same level
of service provided before the transfer;
(3) provide for consumer choice as appropriate and as
required by rule; and
(4) require local mental health and mental retardation
authorities to implement the privatization of services in a
fiscally responsible manner.
TEX.HEALTH & SAFETYCODE ANN. 5 533.035(e)-(g) (Vernon Supp. 2005).’
3Section 533.035 has not been amended since 2003. The Seventy-ninth Legislature adopted amendments to
section 533.035 in House Bill 2572, but that bill was subsequently vetoed by the Governor. See Tex. H.B. 2572, 79th
Leg., R.S. (2005); Veto Proclamation of Gov. Perry, Tex. H.B. 2572,79th Leg., R.S. (2005). See also infra note 16.
Mr. Albert Hawkins - Page 3 (GA-0416)
You explain that because section 533.035(g) addresses the delivery of mental retardation
services and not mental health serviceq4 there is “some disagreement regarding the scope of
subsection (e).“5 You ask us to resolve whether section 533.035(e) applies to both mental retardation
services and mental health services or only to mental retardation services.6
In construing section 533.035(e), we must give effect to the legislature’s intent. See TEX.
GOV’T CODE ANN. $8 3 11.021, .023 (Vernon 2005); Albertson s, Inc. v. Sinclair, 984 S.W.2d 958,
960 (Tex. 1999); Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436,438 (Tex. 1997). To do so,
we must construe the statute according to its plain language. See In re Canales, 52 S.W.3d 698,702
(Tex. 2001); RepublicBank Dallas, NA. v. Interkal, Inc., 691 S.W.2d 605,607-08 (Tex. 1985). We
must also construe section 533.035(e) in context, considering section 533.035 as a whole and in light
of other statutes that govern the delivery of mental health and mental retardation services. See TEX.
GOV’T CODE ANN. § 3 11 .Ol l(a) (Vernon 2005) (words and phrases to be read in context); Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001) (“[W]e must always consider the statute as
a whole rather than its isolated provisions. . . . We should not give one provision a meaning out of
harmony or inconsistent with other provisions, although it might be susceptible to such a
construction standing alone.“).
Section 533.035(a) provides for the designation of local mental health authorities, local
mental retardation authorities, and single entities to serve in both capacities:
The commissioner shall designate a local mental health
authority and a local mental retardation authority in one or more local
service areas. The board may delegate to the local authorities the
board’s authority and responsibility for the planning, policy
development, coordination, including coordination with criminal
justice entities, resource allocation, and resource development for and
oversight of mental health and mental retardation services in the most
appropriate and available setting to meet individual needs in that
service area. The commissioner may designate a single entity as the
local mental health authority and the local mental retardation
authority for a service area.
TEX. HEALTH & SAFETYCODE ANN. 3 533.035(a) (Vernon Supp. 2005).7 State and federal funds
4See Request Letter, supra note 2, at 3-5.
51d. at 5.
%‘ee id. at 3-5.
71n addition, section 53 1.002 defines the terms “local mental health authority” and “local mental retardation
authority”:
(10) “Local mental health authority” means an entity to which the board
delegates its authority and responsibility within a specified region for planning,
(continued...)
Mr. Albert Hawkins - Page 4 (GA-0416)
may be disbursed to a local mental health and mental retardation authority (or “local authority”) to
be spent in the local service area on community mental health and mental retardation services and
chemical dependency services for persons who are dually diagnosed as having both chemical
dependency and mental illness or mental retardation. See id. 6 533.035(b)(1)-(2).
Section 533.035(e) provides that “a local mental health and mental retardation authority may
serve as a provider of services only as a provider of last resort.” Id. 0 533.035(e). The Health and
Safety Code expressly provides distinct definitions for the terms “mental health services” and
“mental retardation services” for purposes of chapter 533.8 The term “services” in section
533.035(e) is not expressly limited to mental retardation services and thus, on its face, means mental
retardation services and mental health services.
Moreover, section 533.035(c) provides as follows:
(c) A local mental health and mental retardation authority, with
the department’s approval, shall use the funds received under
Subsection (b) to ensure mental health, mental retardation, and
chemical dependency services are provided in the local service area.
The local authority shall consider public input, ultimate cost-benefit,
and client care issues to ensure consumer choice and the best use of
public money in:
(1) assembling a network of service providers; and
policy development, coordination, including coordination with criminal justice
entities, and resource development and allocation and for supervising and ensuring
the provision of mental health services to persons with mental illness in the most
appropriate and available setting to meet individual needs in one or more local
service areas.
(11) “Local mental retardation authority” means an entity to which the board
delegates its authority and responsibility within a specified region for planning,
policy development, coordination, including coordination with criminal justice
entities, and resource development and allocation and for supervising and ensuring
the provision of mental retardation services to persons with mental retardation in
the most appropriate and available setting to meet individual needs in one or more
local service areas.
TEX.HEALTH & SAFETY CODE ANN. $53 1.002( lOH1 1) (Vernon 2003). See also supra note 1.
‘See id. 5 53 1.002( 12) (“‘Mental health services’ includes all services concerned with research, prevention, and
detection of mental disorders and disabilities, and all services necessary to treat, care for, control, supervise, and
rehabilitate persons who have a mental disorder or disability, including persons whose mental disorders or disabilities
result from alcoholism or drug addiction.“), (13) (“‘Mental retardation services’ includes all services concerned with
research, prevention, and detection of mental retardation, and all services related to the education, training, habilitation,
care, treatment, supervision, and control of persons with mental retardation, but does not include the education of
school-age persons that the public educational system is authorized to provide.“).
Mr. Albert Hawkins - Page 5 (GA-0416)
(2) making recommendations relating to the most appropriate
and available treatment alternatives for individuals in need of mental
health or mental retardation services.
Id. 0 533.035(c) (emphasis added). The term “services” in section 533.035(c) includes both mental
health services and mental retardation services and the term “network of service providers” in section
533.035(c)(l) includes providers ofboth types of services. See id Section 533.035(e) uses the same
terms and the terms have the same meaning as they have in section 533.035(c): “In assembling a
network of service providers, a local mental health and mental retardation authority may serve as a
provider of services only as a provider of last resort . . . .” Id. 9 533.035(e) (emphasis added).
With respect to the 2003 amendments, you are particularly concerned about section
533.035(g), which the legislature also added to section 533.035 in House Bill 2292 and which
imposes specific requirements for the privatization only of mental retardation services, not mental
health services. See id. 5 533.035(g); Request Letter, supra note 2, at 3-5. It has been suggested
that the legislature’s adoption of section 533.035(g) indicates that the legislature did not intend
section 533.035(e) to affect whether a local authority may provide mental health services directly.’
However, the fact that the legislature adopted specific requirements for privatizing mental retardation
services does not resolve whether the legislature intended section 533.035(e) to affect the provision
of mental health services by a local authority.
Your letter and the other briefs we have received” do not mention House Bill 2292’s
amendment to section 533.035(c), which we believe expressly reveals the legislature’s intent with
respect to section 533.035(e)‘s scope. Prior to the 2003 amendment, section 533.035(c) provided
as follows:
(c) A local mental health and mental retardation authority,
with the department’s approval, shall use the funds received under
Subsection (b) to ensure mental health, mental retardation, and
chemical dependency services are provided in the local service area.
The local authority shall consider public input, ultimate cost-benefit,
and client care issues to ensure consumer choice and the best use of
public money in:
(1) assembling a network of service providers;
‘See Request Letter, supra note 2, at 5; see also Brief from Brian Crews, General Counsel, The Texas Council
of Community Mental Health and Mental Retardation Centers, Inc. (the “TCCMHMRC”), to Honorable Greg Abbott,
Attorney General of Texas, at 2 (Oct. 18, 2005) [hereinafter TCCMHMRC Brief]; Letter from Honorable Tom
Vandergriff, Tarrant County Judge, to Honorable Greg Abbott, Attorney General of Texas (Oct. 19,2005); Brief from
Michael R. Crowe, Brown McCarroll, L.L.P., to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Oct. 19,2005)
[hereinafter Brown McCarroll Briefl (briefs and letter on file with the Opinion Committee).
“See Briefs cited, supra note 9.
Mr. Albert Hawkins - Page 6 (GA-0416)
(2) determining whether to become a provider of a service
or to contract that service to another organization; and
(3) making recommendations relating to the most appropriate
and available treatment alternatives for individuals in need of mental
health or mental retardation services.
See TEX. HEALTH & SAFETY CODE 3 533.035(c), as added by Act of Apr. 29,1991,72d Leg,, R.S.,
ch. 76, $ 1, 1991 Tex. Gen. Laws 5 15,532 (effective September 1, 1991), amended by Act of Apr.
28, 1993, 73d Leg., R.S., ch. 107, Fj 6.03, 1993 Tex. Gen. Laws 195, 236 (effective August 30,
1993), Act of May 26, 1995, 74th Leg., R.S., ch. 821, 5 8, 1995 Tex. Gen. Laws 4 193, 4195
(effective September 1, 1995), Act of May 11,2001,77th Leg., R.S., ch. 367, 8 3,200l Tex. Gen.
Laws 671,673 (effective September 1,200l) (emphasis added). This provision clearly addressed
not just mental retardation services but also mental health and chemical dependency services. See
id Significantly, House Bill 2292 deleted section 533.035(c)(2), which had charged alocal authority
with considering various factors in “determining whether to become a provider of a service or to
contract that service to another organization.“” With this amendment, the only factors relevant to
whether a local authority may provide services directly are those listed in section 533.035(e)(1)--(2).
The fact that the legislature deleted section 533,035(c)(2) altogether rather than modifying it to
exclude mental retardation services indicates that the legislature intended House Bill 2292 to limit
the extent to which local authorities may be providers of all the services listed in section 533.035(c),
not just mental retardation services. This change to section 533.035(c) strongly supports the
conclusion that the legislature intended section 533.035(e) to address mental health as well as mental
retardation services.12
It has also been suggested that the legislature could not have intended the House Bill 2292
amendment to section 533.035(e) to apply to mental health services because House Bill 2292 also
adopted section 533.0354 of the Health and Safety Code.13 In pertinent part, section 533.0354
requires a local mental health authority to “ensure the provision of’ certain services that meet
specified treatment criteriaI and “to incorporate jail diversion strategies into the authority’s disease
“See Act of June 2, 2003, 78th Leg., R.S., ch. 198, 5 2.74, 2003 Tex. Gen. Laws 611, 676.
“The House Bill 2292 amendment to section 535.002(b) of the Health and Safety Code also supports the
conclusion that the legislature intended to limit local authorities’ ability to provide mental health services. See id. $
2.82A, at 680 (amending section 535.002(b) to prohibit the department from using a local mental health or mental
retardation authority to provide certain services if other providers are available) (effective September 1,2006).
13S’eeid. 5 2.75, at 676-77; see also Brown McCarroll Brief, TCCMHMRC Brief, supra note 9.
14SeeTEX. HEALTH& SAFETYCODEANN. 3 533.0354(a) (Vernon Supp. 2005) (“A local mental health authority
shall ensure the provision ofassessment services, crisis services, and intensive and comprehensive services using disease
management practices for adults with bipolar disorder, schizophrenia, or clinically severe depression and for children
with serious emotional illnesses. The local mental health authority shall ensure that individuals are engaged with
treatment services that are: (1) ongoing and matched to the needs of the individual in type, duration, and intensity; (2)
focused on a process of recovery designed to allow the individual to progress through levels of service; (3) guided by
(continued...)
Mr. Albert Hawkins - Page 7 (GA-0416)
management practices for managing adults with schizophrenia and bipolar disorder to reduce the
involvement of those client populations with the criminal justice system.“15 You do not ask us to
construe section 533.0354 and we do not do so here. We only note that section 533.0354 does not
require us to construe section 533.035(e) contrary to the latter section’s plain language and the
legislature’s simultaneous amendment of section 533.035(c). For example, section 533.0354
requires a local mental health authority to “ensure the provision of’ certain services. See TEX.
HEALTH& SAFETYCODE ANN. 3 533.0354(a) (Vernon Supp. 2005). It does not necessarily require
a local mental health authority itself to provide the services; arguably, a local authority could fulfill
its duty under the statute by contracting with other organizations to provide the required services.
A local mental health authority that is able to make the showing required by section
533.035(e)(1)-(2) could fulfill its duty under section 533.0354 by stepping in as a provider of last
resort.
For these reasons, we conclude that section 533.035(e) limits a local mental health and
mental retardation authority to serving as a provider of mental health services only as a provider of
last resort. l6
It has been suggested that if section 533.035(e) is construed to limit a local authority to acting
as a provider of last resort for mental health services, then it conflicts with statutes governing access
to mental health services.17 However, none of these statutes appears to require that mental health
services be provided by a local authority as opposed to other organizations.‘8 Moreover, before the
evidence-basedprotocols and a strength-based paradigm of service; and (4) monitored by a system that holds the local
authority accountable for specific outcomes, while allowing flexibility to maximize local resources.“).
“See id. 9 533.03.54(b).
161n2005 the legislature adopted House Bill 2572, which amended section 533.035(e) to clarify the extent to
which a local mental health authority may directly provide mental health services. See Tex. H.B. 2572, !j 2,79th Leg.,
R.S. (2005). Bill analyses indicate that House Bill 2572 was intended to resolve the issue you raise in this request. See
SENATE RESEARCH CENTER,SENATE COMM. ON HEALTH & HUMAN SERVICES,BILL ANALYSIS, Tex. H.B. 2572,79th
Leg., R.S. (2005) (“These provisions were amended by H.B. 2292,78th Texas Legislature, in a manner which restricted
the types of services that can be provided by local mental health and mental retardation authorities. These changes
adversely affected the local service delivery structure in ways that were not anticipated when the legislation was enacted.
Over the past two years, representatives of the public and private sector have worked to resolve these problems, and H.B.
2572 is the result ofthose efforts.“); see also HOUSE COMM. ONHUMAN SERVICES,BILL ANALYSIS, Tex. H.B. 2572,79th
Leg., R.S. (2005); SENATE COMM. ON HEALTH & HUMAN SERVICES, BILLANALYSIS, Tex. H.B. 2572,79th Leg., R.S.
(2005). As noted above, however, the Governor vetoed House Bill 2572, see Veto Proclamation, supra note 3, and
requested by executive order that the executive commissioner of the Health and Human Services Commission
“immediately request clarification from [this office] as to the applicability of Section 533.035(e) through(g) ofthe Health
and Safety Code to the provision of mental health services,” Tex. Gov. Exec. Order No. RP 45, 30 Tex. Reg. 1709
(2005), also available at http:llwww.govemor.state.tx.usidivisionslpresslexordersl~45 (last visited Feb. 2,2006).
17See Brown McCarroll Brief, supra note 9, at 2-4.
‘*See, e.g., 42 U.S.C. 8 1396a(23)(A) (2000) (requiring a state Medicaid plan to permit participants to select
providers); TEX. HEALTH & SAFETY CODE ANN. !j 571.004 (Vernon 2003) (requiring treatment in least restrictive
appropriate setting available).
Mr. Albert Hawkins - Page 8 (GA-0416)
adoption of House Bill 2292, section 533.035 did not require a local authority to provide mental
health services. A local authority had express authority to choose whether to “become a provider
of a service or to contract that service to another organization.” TEX.HEALTH & SAFETYCODE
tj 533.035(c)(2), as added by Act of Apr. 29,1991,72d Leg., R.S., ch. 76,s 1,199 1 Tex. Gen. Laws
515,532 (effective September 1, 1991), amended by Act of Apr. 28, 1993,73d Leg., R.S., ch. 107,
$6.03,1993 Tex. Gen. Laws 195,236 (effective August 30,1993), Act of May 26,1995,74th Leg.,
R.S., ch. 821, 5 8, 1995 Tex. Gen. Laws 4193,4195 (effective September 1, 1995), Act ofMay 11,
2001,77th Leg., R.S., ch. 367, 5 3,200l Tex. Gen. Laws 671,673 (effective September 1,200l).
Mr. Albert Hawkins - Page 9 (GA-04 16)
SUMMARY
Section 533.035(e) of the Health and Safety Code, which
provides that in “assembling a network of service providers, a local
mental health and mental retardation authority may serve as a
provider of services only as a provider of last resort” and only under
certain conditions, applies to both mental health services and mental
retardation services.
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
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/4128781/ | ATTORNEY GENERALOFTEXAS
GREG ABBOTT
April $2005
Mr. Raymund A. Paredes Opinion No. GA-03 14
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Whether a junior college district’s statutorily
Post Office Box 12788 defined service area is extended when the district
Austin, Texas 78711 provides services outside that area (RQ-0280-GA)
On behalf of the Brazosport College District (the “Brazosport CD”) and the Alvin
Community College District (the “Alvin CCD”), you ask, in essence, whether a junior college
district’s statutorily defined service area is extended when the district provides services outside that
area.’
Your query arises from a dispute between the Brazosport CD and the Alvin CCD (the
“districts”) over the reach of the Alvin CCD’s service area. See Request Letter, supra note 1, at 1.
Under the Education Code, a junior college district’s service areamay extend beyond the boundaries
of its taxing district, the area in which it levies taxes. See TEX. EDUC. CODE ANN. 8 130.161(2)
(Vernon 2002). Subchapter .I of chapter 130 of the Education Code establishes the boundaries of
each Texas junior college district’s service area. See id. $5 130.162-,211 (Vernon 2002 & Supp.
2004-05). The extent of a junior college district’s service area is legally significant because, for
example, certain district authoritywith respect to real property transactions is limited to the district’s
service area,* a district may annex territory in its service area,3 and a district may reduce tuition for
certain students who reside in its service area outside its taxing district4 Sections 130.163 and
130.170 of the Education Code establish the two districts’ service areas.’
‘LetterfromCommissionerRaymundA. Paredes, CommissionerofHigherEducation,TexasHigherEducation
Coordinating Board, to Honorable Greg Abbott, Texas Attorney General (Oct. 18, 2004) (on file with opinion
Committee, also available af http://www.oag.state.br.us) [hereinafter Request Letter].
‘See, e.g., TEX. EDUC. CODE ANN. $5 130.0021, .086(c) (Vernon 2002)
‘See id. 5 130.063(a)
‘See id. 5 130.0032(c).
‘see id. $5 130.163 (“The service area of the Alvin Community College District includes the territory within:
(1) the Alvin, Danbuv, and Pearland independent school districts; and (2) the part of the Angleton Independent School
(continued...)
Mr. Raymund A. Parades - Page 2 (GA-0314)
Chapter 130 ofthe Education Code does not directly address whether junior college districts
may provide services outside their service areas. Section 130.006 provides limited authority for a
junior college district to enter into a contract with an independent school district located in a county
contiguous to, but not a part of, the college district to provide college courses in the school district’s
facilities. See id. $ 130.006 (Vernon 2002). Prior to its amendment in 1999, section 130.086(a)
authorized a junior college district to operate branch campuses “without regard to the geographical
bounds ofthe junior college district.” See Act of May 31, 1975,64th Leg., R.S., ch. 689, 5 1, 1975
Tex. Gen. Laws 2109, amended by Act of May 26,1999,76th Leg., R.S., ch. 1424,§ I,1999 Tex.
Gen. Laws 4863. Section 130.086(a) now generally limits branch campuses, centers, and extension
facilities to ajunior college district’s service area, see TEX. EDUC. CODE ANN. 9 130.086(a) (Vernon
2002), but then-existing programs were not affected by the 1999 change, see id. 4 130.086(g); Tex.
Att’y Gen. Gp. No. JC-0332 (2001) at 3 (discussing Education Code section 130.086). However,
section 130.086 “does not affect the authority” of the Higher Education Coordinating Board (the
“Coordinating Board”) “regarding the continued operation of a branch campus, center, or extension
facility.” TEX. EDUC. CODE ANN. 5 130.086(h) (Vernon 2002).
Section 61.05 l(j) of the Education Code grants the Coordinating Board general authority to
approve off-campus and distance-learning courses offered by institutions of higher education,
including junior college districts. See id. 5 61.051(j) (Vernon 1996). It specifically states that the
Coordinating Board “may not prohibit a public junior college district from offering a course for
credit outside the boundaries ofthe junior college district when such course has met the requirements
for approval as adopted by the board.” Id. With respect to courses offered within the boundaries of
anotherjunior college district, however, section 130.086(d) more speciticallyprovides that a public
junior college may offer a course within the service area of another junior college district only if it
is “established that the second public junior college is unable to offer the course” and the
Coordinating Board grants approval. See id. 5 130.086(d) (Vernon 2002). While subsections (a) and
(c) of section 130.086 do not apply to a branch campus, center, or extension facility established
before September 1, 1999, its other subsections apply to all such programs or other courses. See id.
5 130.086(g).
You inform us that the Alvin CCD has provided college-level courses at two Texas
Department of Criminal Justice (“TDCJ”) prison units for several decades. See Request Letter,
supra note 1, at 1. The Alvin CCD has provided the courses pursuant to contracts with TDCJ and
its Windham School District.6 The units are located within the Brazosport CD service area as
‘(...continued)
District annexed by the community college district before September 1, 1995.“), 130.170 (“The service area of the
Brazosport College District includes the territory within: (1) the Brazosport, Columbia-Brazoria, Sweeny, and Damon
independent school districts; and (2) the Angleton Independent School District, except the part annexed by the Alvin
Community College District before September 1, 1995.“).
‘&e BrieffromDavid M. Feldman, Attorney for Alvin Community College District, to Honorable Greg Abbott,
Texas Attorney General at 1-2 (Sept. 24, 2004) (attachments) (on tile with Opinion Committee) [hereinafter
Supplemental AlvinCCD Brief]. The Education Code establishes the Windham School District as an entity distinct from
TDCJ. See TEX. EDUC. CODE ANN. 5 19.002 (Vernon 1996) (“The school dishict established by the Texas Board of
(continued...)
Mr. Raymund A. Parades - Page 3 (GA-03 14)
described in section 130.170 and not within the Alvin CCD service area as described in section
130.163. Seeid.; TEX.EDUC.CODEANN. $5 130.163, .170(Vemon2002).’ Becausetheprisonunit
courses are offered by the Alvin CCD within the Brazosport CD service area, the courses are subject
to Coordinating Board approval and regulation pursuant to subsection (d) of section 130.086, even
though the Alvin CCD has been providing services at the two prison units since before September
1,1999. See TEX. EDUC. CODE ANN. 5 130.086(d), (g)-(h); see also id. § 61 .OS1(j) (Vernon 1996).
The Alvin CCD claims that because it provides services at the prison units, the units are
within its service area. See Request Letter, supra note 1, at 1. The Brazosport CD does not object
to the Alvin CCD providing services at the prison units, but asserts that the fact that the Alvin CCD
provides services at the units does not bring the units within the Alvin CCD’s service area.’ The
Coordinating Board’s general counsel rendered an advisory opinion concluding that the Alvin CCD’s
service area does not include the prison units.” The Alvin CCD disagreed with this conclusion,”
and you submitted this request on the districts’ behalf. See id. There are no judicial or attorney
general opinions that resolve the issue.
The districts’ dispute centers on section 130.161 of the Education Code, which defines the
terms “services” and “service area” for subchapter J:
Corrections in 1969 shallbe known as the Windham School District, an entity that is separate and distinct from the Texas
Department of Criminal Justice. Tbe district may establish and operate schools at the various facilities of the Texas
Department of Criminal Justice.“). Tbe Windham School District is not a school district under the Education Code
unless specificallyprovided. See id. § 19.004(a) (“The district shallbe govemedasprovidedbythis chapterandpolicies
established by the board. Unless otherwise specifically provided, a provision of this code applying to school districts
does not apply to the district.“).
‘The AlvinCCD acknowledges that theprisonunitsaregeographicallylocatedwithintheBrazosportCD service
area described by section 130.170(2) of the Education Code, see supi-a note 5, but contends that the units are not
“legally” located within the Brazosport CD service area because the Windham School District is not part ofthe Angleton
Independent School District. See Supplemental Alvin CCD Brief, supra note 6, at 2. However, the Windham School
Disbict is not generally a school district under the Education Code, see supro note 6, and the Windham School District
programs at the prison units do not remove the units from the territory described in section 130.170(2).
‘See also Brief from David M. Feldman, Attorney for Alvin Community College District, to Honorable Greg
Abbott, Texas Attorney General at 2-4 (July 2 1,2004) (on file with Opinion Committee) [hereinafter Alvin CCD BriefJ.
‘See Brief from Lisa A. Brown, Attorney for Brazosport College District, to Honorable Greg Abbott, Texas
Attorney General at 1 (Sept. 2,2004) (on file with Opinion Committee) [hereinafter Brazosport CD Brief]; see also
Letter fromLisa A. Brown, Attorney for Brazosport College District, to Honorable Greg Abbott, Texas Attorney General
(Oct. 25,2004) (on tile with Opinion Committee).
%e Letter from Teri E. Flack, Interim Commissioner of Higher Education, to John Pickelman, Chancellor,
North Harris Montgomery County Community College District (June 9,2004) (attached to Brazosport CD Brief).
“See Letter from Carolyn Hanaban, Feldman & Rogers, to Jan Greenberg, General Counsel, Texas Higher
Education Coordinating Board (July 21,2004) (attached to Alvin CCD Brief).
Mr. Raymund A. Parades - Page 4 (GA-03 14)
In this subchapter:
(1) “Services” means the courses and programs described by
Sections 130.0011 and 130.003(e).
(2) ‘3 ervice area” means:
(A) the territory within the boundaries of the taxing
district of a junior college district; and
(B) the territory outside the boundaries of the taxing
district of a junior college district in which the junior college district
provides services.
TEX.EDUC.CODEANN. 5 130.161 (Vemon2002). Sections 130.162 through 130.211,theremaining
subchapter J provisions, define a specific service area for each Texas junior college district. See id.
$5 130.162-,211 (Vernon 2002 & Supp. 2004-05).
Section 130,161(2)(B) clearly establishes that ajunior college district’s service area includes
territory outside the boundaries ofits taxing district. However, the Alvin CCD contends that section
130,161(2)(B) operates to include within a district’s service area any location outside the taxing
district where the district provides services, including locations outside the district’s statutorily
defined service area. See Alvin CCD Brief, supra note 8, at 4.
The AlvinCCD construes section 130,161(2)(B) m isolation whereas the Code Construction
Act and case law require us to view it in the context of subchapter J as a whole. See TEX. GOV’T
CODE ANN. $311.01 l(a) (Vernon 2005) (“Words and phrases shall be read in context[.]“); Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486,493 (Tex. 2001) (“[WI e must always consider the statute as
a whole rather than its isolated provisions. We should not give one provision a meaning out of
harmony or inconsistent with other provisions, although it might be susceptible to such a
construction standing alone.“). It is plain from subchapter J’s face that the statute’s purpose is to
definitively delineate service areas for Texas’ many junior college districts. See TEX. EDUC. CODE
ANN. $5 130.162-,211 (Vernon 2002 & Supp. 2004-05). This purpose is also clear from the
legislative history. The legislature enacted subchapter J in 1995 as Senate Bill 397. Both bill
analyses for Senate Bill 397 indicate the legislature’s intent to establish fixed service areas to avoid
duplication of services:
Community colleges now serve both their official taxing district as
well as areas outside the taxing district which have been assigned to
community colleges by the Texas Higher Education Coordinating
Board. Creation of delineated community college service areas may
help avoid duplication of services. As proposed, C.S.S.B. 397
requires each community college district to have a recognized service
area. [C.S.S.B 3971 [s]ets forth the service area of each district.
Mr. Raymund A. Parades - Page 5 (GA-0314)
SENATE COMM. ON EDUCATION,BILL ANALYSIS, Tex. Comm. Subst. S.B. 397, 74th Leg., R.S.
(1995); see also HOUSE COMM. ON HIGHEREDUCATION,BILL ANALYSIS, Tex. S.B. 397,74th Leg.,
R.S. (1995). Construing the term “service area” in section 130.161(2) to permit a junior college
district to unilaterally extend its statutorily defined service areamerelybyproviding services outside
that territory would defeat the legislature’s painstaking effort in sections 130.162 through 130.211
to precisely delineate a fixed service area for each Texas junior college district. See TEX. GOV’T
CODE ANN. 9 3 11.023(l), (3) (5) (Vernon 2005) (in construing a statute, a court may consider the
object sought to be attained, legislative history, and the consequences of a particular construction).
Furthermore, section 130.16 l(1) provides a very specific definition for the term “services”
in subchapter J, which the Alvin CCD does not address but must also guide our construction of
section 130.161(2)(B). See id. § 311.01 l(b) (“Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.“).
Specifically, section 130.161(l) defines services as “the courses and programs described by
[slections 130.0011 and 130.003(e).” TEX. EDUC. CODE ANN. § 130.161(l) (Vernon 2002).
Section 130.0011 establishes junior colleges’ mission as follows:
Texas public junior colleges shall be two-year institutions
primarily serving their local taxing districts and service areas in Texas
and offering vocational, technical, and academic courses for
certification or associate degrees. Continuing education, remedial
and compensatory education consistent with open-admission policies,
and programs of counseling and guidance shall be provided. Each
institution shall insist on excellence in all academic areas -
instruction, research, and public service. Faculty research, using the
facilities provided for and consistent with the primary function of
each institution, is encouraged. Funding for research should be from
private sources, competitively acquired sources, local taxes, and other
local revenue.
Id. $ 130.0011. Similarly, section 130.003(e) establishes that
[t]he purpose of each public community college shall be to provide:
(1) technical programs up to two years in length leading to
associate degrees or certificates;
(2) vocational programs leading directly to employment in
semi-skilled and skilled occupations;
(3) freshman and sophomore courses in arts and sciences;
(4) continuing adult education programs for occupational or
cultural upgrading;
Mr. Raymund A. Parades - Page 6 (GA-0314)
(5) compensatory education programs designed to fulfill the
commitment of an admissions policy allowing the enrollment of
disadvantaged students;
(6) a continuing program ofcounseling and guidance designed
to assist students in achieving their individual educational goals;
(7) work force development programs designed to meet local
and statewide needs:
(8) adult literacy and other basic skills programs for adults;
and
(9) such other purposes as may be prescribed by the Texas
Higher Education Coordinating Board or local governing boards in
the best interest of post-secondary education in Texas.
Id. 5 130.003(e).
Sections 130.0011 and 130.003(e) establish the basic courses and programs a junior college
district must offer. See id. $5 130.0011, .003(e). And section 130.0011 expressly states that ajunior
college district’s primary mission is to serve its taxing districts and service area, clearly referring to
a limited, fixed territory. See id. 5 130.0011 (“Texas public junior colleges shall be two-year
institutions primarily serving their local taxing districts and service areas in Texas. .“). Thus, we
conclude that sections 130.0011 and 130.003(e) describe basic, core services to be delivered within
a predetined, fixed territory, not any and all services a junior college district may be authorized to
provide.
Given the section 130.161(l) definition of “services,” which specifically limits the term to
courses andprogmmsprovidedunder sections 130.0011 and 130.003(e), thephrase“territotyoutside
the boundaries of the taxing district of a junior college district in which the junior college district
provides services” in section 130,161(2)(B) does not operate to include territory in a junior college
district’s service area simply because the junior college district provides services there. Rather it
refers to core junior college district services mandated by sections 130.0011 and 130.003(e) that the
district provides within its legislatively fixed service area. According to its plain terms, section
130.161(2)(B) does not operate to include within a junior college district’s service area every
location where the junior college district provides services.
Accordingly, we conclude that a junior college district’s statutorily defined service area is
not extended when it provides services outside that area. With respect to the dispute at hand, the fact
that the Alvin CCD provides services in prison units outside its section 130.163 service area does
not extend its service area to include those locations.
Mr. Raymund A. Parades - Page 7 (GA-0314)
SUMMARY
A junior college district’s statutorily defined service area is
not extended when it provides services outside that area. The fact
that the Alvin Community College District provides services in prison
units outside its Education Code section 130.163 service area does
not extend its service area to include those locations.
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/4143465/ | Honorable Mortimer Brown
Exeoutive Seoretery
Teacher Retirement System of Texas
Austin, Texas
Dear Sir: Opinion No. O-9907
Re: Return of accumulated oontributiqns
upon~ death of member of Teacher
Retirement System under will, when
named beneficiary predeceases
member and when funds still in
custody of System at death of
beneficiary.
We are in receipt of your reoent request for an opinion by
this department in whioh you present the following state of
facts:
Edith Sparra and Annie Katherine Sparra,, sisters, were members
of the Teachers Retirement System of Texas and on forms pro-
vided for that purposes each designated the other as benefici-
ary to receive the return of their respective aocumulated con-
tributions in case of death before retirement. While her
designation was outstanding, Edith Sparra died on September 18,
1940. On September SL, 1940, Annie Katherine Sparra made the
following will:
"I bequeathe all of my earthly goods to Mrs. ,Karen
Sparra Rogers."
Before the accumulated contributions of Edith Sparra, deceased,
could be paid to Annie Katherine Sparra, the beneficiary,
Annie Sparra died on October 14, 1940, and the above quoted
will was duly proved and admitted to probate. The designation
of benafioiary of Annie Katherine Sparra, which is still on
file in your office, names Edith Sparra as beneficiary and
has not been ohanged unless the above quoted will disposes
of the accumulated contributions.
The printed form for designation of beneficiary used by your
office and which was signed by each of the deceased members in
question contains the following language8
"Should the beneficiary named above die before me and I
Honorable Mortimer Brown, page 2, O-2907
fail to name another, it is understood that my accumulated
contributions shall be paid as provided by the laws of
descent and distribution of Texas.”
Your letter continues as follows:
?Ihe question of whether or not the exeoution of this will
on September 21 (three days after the death of Edith
Sparrs) could be interpreted as naming another beneficiary
to receive the return of the acoumulated oontributions is
a point of concern to this office.
“1 . Is the Teacher Retirement System correot in the
assumption that the aocumulated oontributlons of Edith
Sparra, deceased, should be paid to Mrs. Karen Sparra
Rogers?
“2. Would the Teacher Retirement System of Texas be acting
in accordance with the law and be protected against any
further claim in regard to the accumulated contributions
of Annie Katherine Sparra, deceased, if the accumulated
contributions of Annie Katherine Sparra, deceased, were
paid to Mrs. Karen Sparra Rogers?
“3. If your answer to Question No. 2 is in the negative,
how should the accumulated contributions of Annie Katherine
Sparra, deceased, be handled?”
It is our opinion that you are correct in your assumption that the
accumulated oontributions of Edith Sparra, de.ceased, should be
paid to Mrs. Karen Sparra Rogers under the will of Annie Katherine
Sparra.
Section 5, Subsection 6, of the Teacher Retirement Act (S.B.47,
45th Leg.) contains the following provision:
“Should a member die before retirement, the amount of
his accumulated contributions standing to the credit of
his individual account shall be paid as provided by the
laws of descent and distribution of Texas unless he has
directed the acount to be paid otherwise.”
Edith Sparra has directed that her account be paid to her sister
Annie Katherine Sparra. U on the death of Edith Sparra, her
living beneficiary, Annie Ratherine Sparra, became entitled to
the accumulated contributions of her sister under the express
terms of the designation on file in your offioe. (See Opinion
O-2009, rendered to your department on March 20, 1940). The
interest of the designated beneficiary vested upon the death
of the member and the fact that payment had not been completed
prior to the death of such beneficiary would not defeat her
interest in the fund but the same would be subject to disposi-
tion as other property in her estate. (Further discussion and
i- .?
‘*
Honorable Mortimer Brown, page 3, O-2907
citation may be found in Opinion No. O-2009).
The section of the Retirement Act quoted above does not ax..
PresslY require any particular form or method for designating
a "beneficiary It bUt merely provides that upon the death of the
member his accumulated contributions shall be paid as provided
bY the laws of descent end distribution"unless he has directed
the acoount to be paid otherwise." Although there will ne-
cessarily be some question upon this point until the courts
have passed Upon the issue, it is our opinion, that when a
beneficiary has not been otherwise designated, or other direc-
tion given to pay the account, the accumulated contributions
standing in the account of the member may be disposed of bY
will. Former opinions by this department have never specifi-
cally decided this point.but various expressions therein would
seem to support 'this proposition. In certain types of designa-
tions of bene,fi&iaries in life insurance, it has been held that
the beneficiary acquires a vested interest in the proceeds of
the policy prior to the death of the insured, which rule is
based upon contract or applic,able statutes. 29 Am. Jur. p.
948 et seq; 14 Rawle C. L. p. 1378 et seq. In other cases the
beneficiary is held to have a mere expectency. In the case of
wills, if a devisee or legatee predeceases the testator the
gift as to him is deemed to have failed or lapsed. 44 Tex.
Jur. p* 805, S 237. The provision in the Act in question
authorizing a member to direct the payment of his accumulated
contributions, does not, in our opinion, contemplate that the
mere naming of a person to take the fund upon the death of the
member, should create a presently vested right in the so-called
beneficiary. In support of this conclusion we refer to Opinion
NO. O-129, Conference Opinion No. 3055, written by the presen,t
Chief Justice of the Texas Supreme Court wherein it is stated:
"With respect to the provision of the Act which declares
that a member while living may appoint in writing a
person to receive at the death of the member the residue
of his or her benefits, whether called oReturned Contri-
butlons,r PRetirement Benefitsr or PAnnUity,r it is to
be noted that such appointment does not give to the
appointee any present interest ln such benefits during
the life of the member. As to such appointee the title to
such residue does not ves% absolutely until tlhe.death of
the member. Of such an appointment is made, however, and
it is not subsequently revoked by the member, it would
entitle the appointee to receive suchresidue of the
mamberts benefits for the reason that this Act specifi-
cally so provides. In this respect the statute is similar
to the provisions usually contained in ordinary life
insurance policies, which authorize the insured to appoint,
in writing, a substitute beneficiary. Such an appointment,
as provided for in this Act, it is believed, maY be re-
called or revoked by the member."
Honorable Mortimer Brown, page 4, O-2907
The language quoted above from the designation of beneficiary
form, to which you call our attention, is susceptible to the
construction that it is a further or substitute designation
of the heirs, in the event the person named therein dies
before the member. Upon consideration of the form as a whole,
however, and its reference to the statute, we think this is not
the true purpose of the language. It apparently recognizes a
lapse of the designation in the event the beneficiary prede-
ceases the member and is intended to refer back to the statute
with then understanding that unless the member gives further
direction, the accumulations will be paid under the laws of
descent and distribution as provided in the Act.
It is our opinion that when the designated benefioiary of
Edith Sparra predeceased her, suoh designation failed and
lapsed, snd that the subsequent will of Annie Katherine Sparra
leaving all her earthly goods to Mrs. Karen Sparra Rogers, with
no other direction or designation outstanding, was a suffiaient
direction to pay her accumulated oontributions within the terms
of the statute. It follows that in our opinion you may pay to
Mrs. Karen Sparra Rogers the accumulated aontributions of
Annie Katherine Sparra and Edith Sparra, both deceased.
In view of the foregoing, your third question does not require
an answer.
Yours very truly
ATTORR'EYGENERALOF TEXAS
s/ Cecil C. Cammack
BY
Cecil C. CammaOk
Assistant
CCCnEP/og
APPROVEDDEC. 18, 1940
s/ Gerald C. Mann
ATTORNEYGENERALOF TEXAS
Approved Opinion Committee
By BWB, Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289075/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING XUE, No. 12-74185
Petitioner, Agency No. A088-794-941
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2018**
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.
Ming Xue, a native and citizen of China, petitions for review of a Board of
Immigration Appeals (BIA) decision dismissing his appeal of an order by an
Immigration Judge (IJ) denying applications for asylum and withholding of removal.
We have jurisdiction under 8 U.S.C. § 1252(a) and deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The credibility determination was supported by substantial evidence. See
Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (stating standard of
review). Under the REAL ID Act of 2005, an “IJ may base an adverse credibility
determination on any relevant factor that, considered in light of the totality of the
circumstances, can reasonably be said to have a ‘bearing on a petitioner’s veracity.’”
Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (quoting Shrestha v. Holder, 590
F.3d 1034, 1044 (9th Cir. 2010)). In a credible fear interview, Xue claimed he had
been beaten, hit, and kicked by officials who came to his home in 2006. However,
at the hearing on his applications and in his asylum statement, Xue only testified to
having collided with an officer as he ran down the stairs in 2006. Moreover, in the
asylum interview, Xue said he was forced to stay with a relative and pay the
government a fine after his wife’s 1996 pregnancy. But, neither Xue’s asylum
statement nor his wife’s letter mentions a forced stay with a relative or a fine.
2. These discrepancies provided substantial evidence for the adverse
credibility finding. See Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010)
(holding that “a spouse or unmarried partner of a victim of forced abortion is not
presumptively eligible for refugee status” and must provide evidence of his or her
own “resistance to a coercive population control program” (citation omitted));
Shrestha, 590 F.3d at 1046–47 (“Although inconsistencies no longer need to go to
the heart of the petitioner’s claim, when an inconsistency is at the heart of the claim
2
it doubtless is of great weight.”). Because these inconsistencies are sufficient, we
need not consider the other grounds relied on by the BIA. See Wang v. INS, 352
F.3d 1250, 1259 (9th Cir. 2003) (stating that as “long as one of the identified grounds
is supported by substantial evidence . . . we are bound to accept the IJ’s adverse
credibility finding”).
The petition for review is DENIED.1
1
Xue’s challenge to the IJ’s reliance on his credible fear interview and his
argument that he was denied an opportunity to explain the omissions in his asylum
statement and his wife’s letter were not exhausted before the BIA. See Abebe v.
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (holding that “we lack
jurisdiction to review” claims not raised in a petitioner’s brief before the BIA).
3 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289076/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIHUA CHEN, No. 14-70359
Petitioner, Agency No. A200-575-456
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2018**
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.
Lihua Chen is a native and citizen of China. He petitions for review of a Board
of Immigration Appeals (BIA) decision dismissing his appeal of an order by an
Immigration Judge (IJ) denying his applications for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252(a) and deny the petition for review.
1. An application for asylum is untimely if not filed within one year of an
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Chen arrived in Guam
in April 2009 and filed his asylum application in July 2011. His late filing can be
excused if there are “extraordinary circumstances relating to the delay in filing.” 8
U.S.C. § 1158(a)(2)(D). If extraordinary circumstances are established, Chen also
“must then demonstrate that the asylum application was filed within a ‘reasonable
period given those circumstances.’” Al Ramahi v. Holder, 725 F.3d 1133, 1135 (9th
Cir. 2013) (quoting 8 C.F.R. § 1208.4(a)(5)).
Substantial evidence supports the BIA’s conclusion that Chen “did not
establish that he filed his asylum application within a reasonable period under the
circumstances.” Chen’s reliance on representations from his employer that his
original status would be extended was not reasonable after April 2010, when the
employer’s extension request was denied. Chen’s passport stated that his work status
expired in October 2009, and a preamble to the regulation in place at the time, Singh
v. Holder, 656 F.3d 1047, 1056 (9th Cir. 2011), cautioned that “waiting six months
or longer after expiration or termination of status would not be considered
reasonable.” Asylum Procedures, 65 Fed. Reg. 76121, 76124 (Dec. 6, 2000).
2. The BIA’s affirmance of the IJ’s adverse credibility determinations was
supported by substantial evidence. Under the REAL ID Act of 2005, an “IJ may base
2
an adverse credibility determination on any relevant factor that, considered in light
of the totality of the circumstances, can reasonably be said to have a ‘bearing on a
petitioner’s veracity.’” Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)). The BIA accurately noted
that although Chen had testified “that he was present and had a confrontation with
officials when they took his wife away during her third pregnancy, his written
statement did not state that he encountered family officials at that time.” Indeed,
although Chen testified that he engaged “in a physical fight” and “was handcuffed”
when family planning officials came to take his wife for her second abortion, his
written statement makes no mention of any such incident. His written statement only
describes a “physical confrontation” with government officials before his wife’s first
abortion. This discrepancy, which goes to the heart of Chen’s persecution claim,
provides substantial evidence for the adverse credibility finding. Wang v. INS, 352
F.3d 1250, 1259 (9th Cir. 2003) (stating that as “long as one of the identified grounds
is supported by substantial evidence . . . we are bound to accept the IJ’s adverse
credibility finding”); see also Shrestha, 590 F.3d at 1046–47 (“Although
inconsistencies no longer need to go to the heart of the petitioner’s claim, when an
inconsistency is at the heart of the claim it doubtless is of great weight.”).1
1
Substantial evidence also supports the BIA’s finding of several other
discrepancies between Chen’s asylum application, his written statement, and his
hearing testimony. Chen’s application conflicted with his later testimony about the
3
3. The BIA also did not err in concluding that, even if Chen’s asylum
application had been timely, it would nonetheless fail because “the documentary
evidence he submitted did not overcome his lack of credibility” or “independently
and credibly prove his claim of past and future persecution.” Chen’s documentary
evidence consisted of a letter from his wife stating that she had had two abortions,
and two country conditions reports. None of these compels a finding of past or future
persecution. See Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (“The
petition for review may be granted only if the evidence presented was such that a
reasonable factfinder would have to conclude that the requisite fear of persecution
existed.”) (citation and internal quotation marks omitted). Chen’s application for
withholding of removal therefore also necessarily failed. See Fisher v. INS, 79 F.3d
955, 965 (9th Cir. 1996) (en banc) (holding that applicant who “failed to satisfy the
lesser standard of proof required to establish eligibility for asylum . . . necessarily
failed to demonstrate eligibility for withholding of deportation”).
4. The BIA’s rejection of Chen’s CAT application was also based on
substantial evidence. Even assuming his credibility, Chen presented no evidence that
it is “more likely than not” that he will be tortured if he returns to China. 8 C.F.R.
number of his siblings and place of birth, and failed to disclose that he had previously
worked in Guam. “[E]ven minor inconsistencies that have a bearing on a petitioner’s
veracity may constitute the basis for an adverse credibility determination.” Ren, 648
F.3d at 1089.
4
§ 1208.16(c)(2).
The petition for review is DENIED.
5 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/7606064/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4289080/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES P. TURNER, No. 16-15808
Plaintiff-Appellant, D.C. No. 1:14-cv-00306-BMK
v.
MEMORANDUM*
ASSOCIATION OF APARTMENT
OWNERS OF WAILEA POINT VILLAGE;
ROBERT READER, individually and as
Resident Manager of AOAO Wailea Point
Village; DARRYL JOHNSON, individually
and as Security Supervisor of AOAO of
Wailea Point Village; DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Barry M. Kurren, Magistrate Judge, Presiding
Argued and Submitted June 14, 2018
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.
Charles Turner appeals a judgment in favor of the Association of Apartment
Owners of Wailea Point Village (“Wailea Point”), and two Wailea Point employees,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Robert Reader and Darryl Johnson. The district court granted a defense motion for
summary judgment on Turner’s claims asserting (1) disability discrimination in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., and Hawaii law, Haw. Rev. Stat. § 378-2; (2) religious discrimination in
violation of Title VIII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and Hawaii
law, Haw. Rev. Stat. § 378-2; (3) violation of the Hawaii Whistleblowers’ Protection
Act, Haw. Rev. Stat. § 378-62; and (4) intentional infliction of emotional distress.
Reviewing de novo, Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011), we
vacate the summary judgment on Turner’s disability discrimination claims, but
otherwise affirm.
1. Turner asserts disparate treatment and failure to accommodate disability
claims under the ADA and Hawaii law. Because Hawaii looks “to interpretations of
analogous federal laws” when interpreting its antidiscrimination laws, Schefke v.
Reliable Collection Agency, Ltd., 32 P.3d 52, 69 (Haw. 2001) (quoting Shoppe v.
Gucci Am., Inc., 14 P.3d 1049, 1058 (Haw. 2000)), we analyze both the federal and
state law claims under the settled ADA precedents.
A. ADA discrimination claims are “subject to the burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).”
Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). Under that
framework, on summary judgment, the plaintiff must first adduce sufficient evidence
2
of a prima facie case. McDonnell Douglas, 411 U.S. at 802. If the plaintiff meets
that burden, the defendant must present evidence of a “legitimate, nondiscriminatory
reason” for the challenged conduct. Id. If the defendant does so, then the burden of
production returns to the plaintiff, who must offer evidence that the proffered
nondiscriminatory reason is pretextual. Id. at 804.
In rejecting Turner’s disparate treatment claim, the district court focused on
the third McDonnell Douglas prong, finding no evidence of pretext. But Turner’s
burden on this front was not great. “To avoid summary judgment at this step,
however, the plaintiff must only demonstrate that there is a genuine dispute of
material fact regarding pretext. The amount of evidence required to do so is
minimal.” Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 (9th Cir. 2009).
Thus, “any indication of discriminatory motive . . . may suffice to raise a question
that can only be resolved by a fact-finder,” and “[w]hen [the] evidence, direct or
circumstantial, consists of more than the McDonnell Douglas presumption, a factual
question will almost always exist with respect to any claim of a nondiscriminatory
reason.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)
(omission and second alteration in original) (citations omitted).
Turner’s declaration—which stated, for example, that Wailea Point singled
him out for sleeping during the night shift while other employees did so without
repercussions—raises a dispute of material fact as to disparate treatment. Turner’s
3
declaration also states that he was disciplined for failing to report certain activity by
residents, but other employees were not disciplined for like failures. Although
Turner’s declaration does not specifically allege that the non-disciplined employees
in each instance were not disabled, given the small workforce at the apartment
complex and the employer’s knowledge of the employees, the declaration contains
at least minimal evidence establishing a dispute of material fact on the issue of
disparate treatment. See Nicholson, 580 F.3d at 1127.
B. Absent undue hardship, an employer must offer reasonable
accommodations to disabled employees. 42 U.S.C. § 12112(b)(5)(A). Once an
employee requests an accommodation, “the employer must engage in an interactive
process . . . to determine the appropriate reasonable accommodation.” Zivkovic v. S.
Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). “‘Liability for failure to
provide reasonable accommodations ensues only where the employer bears
responsibility for the breakdown’ in the interactive process.” Id. (quoting Beck v.
Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)).
Wailea Point plainly attempted to accommodate Turner’s left foot injury. But,
Turner testified that after he told his supervisor the initial accommodations were
ineffective, the employer failed to explore additional modifications. Because an
employer can violate “its duty regarding the mandatory interactive process” by
failing to explore other possible accommodations once it becomes aware that current
4
accommodations are ineffective, see Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d
1128, 1139 (9th Cir. 2001), there is a material issue of disputed fact on Turner’s
failure to accommodate claim.1
2. To state a religious discrimination claim, Turner must show that “he had a
bona fide religious belief, the practice of which conflict with an employment duty.”
Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993).2 The record contains no
evidence that Turner’s religious beliefs conflict with his employment duty.
Although Turner prefers to attend church at 7:00 a.m. on Sundays, he admitted that
other services are available after his shift ends.
3. To prevail under the Hawaii Whistleblowers’ Protection Act, Haw. Rev.
Stat. § 378-62, Turner must show that protected conduct had a “causal connection”
to and was a “substantial or motivating factor” in the employer’s retaliation, Crosby
v. State Dep’t of Budget & Fin., 876 P.2d 1300, 1310 (Haw. 1994) (citation omitted).
Even assuming that Wailea Point knew Turner had filed complaints with state
authorities, the record does not contain evidence that such knowledge was a
1
With respect to Turner’s accommodation claim relating to his right foot
injury, however, the district court properly granted the employer summary judgment
because Turner was responsible for the breakdown in the interactive process. See
Allen v. Pac. Bell, 348 F.3d 1113, 1115 (9th Cir. 2003) (per curiam).
2
Hawaii looks to federal law as “a useful analytical tool” in evaluating religious
discrimination claims. Furukawa v. Honolulu Zoological Soc’y, 936 P.2d 643, 649
(Haw. 1997). The parties do not claim that federal law and state law differ in any
respect material to this appeal.
5
substantial or motivating factor in the decision to terminate him. The firing occurred
over a year after Turner filed the complaints, a period too lengthy to establish the
requisite causal connection. See id.; Mussack v. State, No. 28774, 2011 WL
6144904, at *4 (Haw. Ct. App. Dec. 7, 2011).
4. Turner’s intentional infliction of emotion distress claims required evidence
of “outrageous” behavior, Hac v. Univ. of Haw., 73 P.3d 46, 60–61 (Haw. 2003)
(adopting Restatement (Second) of Torts § 46 (Am. Law. Inst. 1965)), which Hawaii
case law defines as actions “without just cause or excuse and beyond all bounds of
decency,” Enoka v. AIG Haw. Ins. Co., 128 P.3d 850, 872 (Haw. 2006) (citation
omitted). The record contains no evidence of conduct by the defendants meeting
this exacting standard. See Restatement (Second) of Torts § 46 cmt. d (requiring
actions “regarded as atrocious, and utterly intolerable in a civilized community”).
5. Finally, Wailea Point argues that some of Turner’s disability discrimination
claims are time-barred. That claim appears to have merit, but because the district
court did not address it, we decline to do so in the first instance, without prejudice
to Wailea Point asserting it before the district court on remand.
AFFIRMED IN PART; VACATED IN PART; and REMANDED IN
PART. Each party shall bear its own costs on appeal.
6 | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4289085/ | In the United States Court of Federal Claims
No. 15-843L
(Filed: June 27, 2018)
***************************************
ALEX BROOKS, JR. et al., *
*
Plaintiffs, * Rails-to-Trails; Fifth Amendment Taking;
* Threshold Title Issues; Centerline
v. * Presumption Under North Carolina Law;
* Intervening Public Road
THE UNITED STATES, *
*
Defendant. *
***************************************
Mark F. Hearne, II, Clayton, MO, for plaintiffs.
Mayte Santacruz, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
In this Rails-to-Trails case, plaintiffs own real property purportedly adjacent to a railroad
right-of-way in Cleveland County, North Carolina. They contend that the United States violated
the Just Compensation Clause of the Fifth Amendment to the United States Constitution by
authorizing the conversion of the railroad right-of-way into a recreational trail pursuant to the
National Trail Systems Act (“Trails Act”), thus acquiring their property by inverse
condemnation. Both plaintiffs and defendant move for summary judgment on threshold title
issues. For the reasons set forth below, the court grants in part and denies in part the parties’
motions.
I. BACKGROUND
A. Statutory and Regulatory Context
During the last century, the United States began to experience a sharp reduction in rail
trackage. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5 (1990). To remedy this
problem, Congress enacted a number of statutes, including the Trails Act, 16 U.S.C. §§ 1241-
1251 (2012). The Trails Act, as amended, provides for the preservation of “established railroad
rights-of-way for future reactivation of rail service” by authorizing the interim use of such rights-
of-way as recreational and historical trails. Id. § 1247(d). This process is referred to as
“railbanking,” and is overseen by the Surface Transportation Board (“Board”), id., the federal
agency with the exclusive jurisdiction to regulate “the construction, acquisition, operation,
abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C.
§ 10501(b) (2012).
Before railbanking can occur, the railroad company must seek to abandon its line, either
by initiating abandonment proceedings with the Board pursuant to 49 U.S.C. § 10903, or by
requesting that the Board exempt it from such proceedings pursuant to 49 U.S.C. § 10502.
While considering the railroad company’s abandonment application or exemption request, the
Board will entertain protests and comments from interested third parties. 49 C.F.R. §§ 1152.25,
1152.29(a) (2014). Of particular relevance in this case, interested third parties may submit
requests for the interim use of the railroad line as a trail pursuant to 16 U.S.C. § 1247(d). Id.
If an interested third party submits a trail-use request to the Board that satisfies the
requirements of 16 U.S.C. § 1247(d), the Board makes the necessary findings pursuant to 49
U.S.C. § 10502(a) or 49 U.S.C. § 10903(d), and the railroad company agrees to negotiate a trail-
use agreement, the Board will issue one of two documents: if the railroad company initiated
abandonment proceedings, the Board will issue a Certificate of Interim Trail Use or
Abandonment, and if the railroad company sought an exemption, the Board will issue a Notice of
Interim Trail Use or Abandonment (“NITU”). 49 C.F.R. § 1152.29(b)-(d). The effect of both
documents is the same: to “permit the railroad to discontinue service, cancel any applicable
tariffs, and salvage track and materials, consistent with interim trail use and rail banking . . . ;
and permit the railroad to fully abandon the line if no agreement is reached 180 days after it is
issued, subject to appropriate conditions . . . .” Id. § 1152.29(d)(1); accord id. § 1152.29(c)(1).
The Board will entertain requests to extend the 180-day deadline to enable further negotiations.
If the railroad company and the interested third party execute a trail-use agreement, then
abandonment of the railroad line is stayed for the duration of the agreement. Id. § 1152.29(c)-
(d); 16 U.S.C. § 1247(d). If no trail-use agreement is executed, the railroad company is
permitted to fully abandon the line. 49 C.F.R. § 1152.29(c)-(d). To exercise its abandonment
authority, the railroad company must “file a notice of consummation with the Board to signify
that it has . . . fully abandoned the line” within one year of “the service date of the decision
permitting the abandonment . . . .” Id. § 1152.29(e)(2). In the absence of a timely filed notice of
consummation, the railroad company’s authority to abandon the line automatically expires. Id.
If efforts to execute a trail-use agreement are unsuccessful and the railroad company
notifies the Board that it has fully abandoned the line, the Board is divested of jurisdiction over
the abandoned railroad line and “state law reversionary property interests, if any, take effect.”
Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed. Cir. 2004).
B. Relevant Factual History
Plaintiffs own real property in Cleveland County, North Carolina, purportedly adjacent to
an 11.85-mile portion of a railroad right-of-way situated between (1) milepost SB 144.55 and
milepost SB 154.50, and (2) milepost SB 158.10 and milepost SB 160.00. 1 The right-of-way
was acquired between 1886 and 1889 by a predecessor of the railroad line’s current owner,
1
The court derives the facts in this section, which are undisputed, from the exhibits
attached to the parties’ summary judgment motions.
-2-
Norfolk Southern Railway Company (“Norfolk Southern”). On June 16, 2015, Norfolk Southern
submitted to the Board a notice of exemption to abandon the 11.85-mile right-of-way. Two days
later, the City of Shelby, North Carolina submitted a trail-use request to the Board. Norfolk
Southern agreed to negotiate a trail-use agreement with the City, and on August 4, 2015, the
Board issued a NITU. The City and Norfolk Southern have been granted several extensions of
time to negotiate a trail-use agreement and negotiations remain ongoing.
C. Procedural History
Three days after the Board issued the NITU, four individuals filed suit in this court
alleging that through the operation of the Trails Act, defendant had taken their property without
paying just compensation in violation of the Fifth Amendment. Additional plaintiffs joined the
action, culminating in the filing of a third amended complaint on July 28, 2017, that set forth the
claims of 105 property owners. 2 The claims of three of those property owners were subsequently
dismissed from the case, 3 leaving the claims of 102 property owners for adjudication.
In accordance with a schedule proposed by the parties, plaintiffs provided defendant with
a book describing their claims. The parties subsequently filed four sets of stipulations regarding
title matters:
• June 9, 2017: The parties stipulated that (1) certain identified plaintiffs owned
their properties on August 4, 2015, the date the Board issued the NITU, and
(2) certain identified parcels were adjacent to the railroad right-of-way
described in the NITU.
• August 11, 2017: The parties stipulated that (1) additional identified plaintiffs
owned their properties on August 4, 2015, the date the Board issued the
NITU, and (2) certain identified original conveyances corresponded with
certain identified parcels and with the relevant segment of the original railroad
right-of-way.
• August 18, 2017: The parties stipulated that certain identified original
conveyances corresponded with other identified parcels and with the relevant
segment of the original railroad right-of-way.
• August 29, 2017: The parties stipulated that under North Carolina law and for
certain identified parcels, the identified source deeds conveyed an easement
2
For the purposes of this decision, the term “property owner” includes individuals,
groups of individuals, and entities.
3
The claim of Charles L. and Barbara S. Rogers (claim 18) was dismissed without
prejudice on September 6, 2017, and the claims of (1) Annie W. and Jimmy D. Dixon (claims
31a and 31b) and (2) Linda C. Price (claims 37a, 37b, 37c, and 37d) were dismissed without
prejudice on January 16, 2018.
-3-
for railroad purposes over the corresponding segment of the original railroad
right-of-way.
The parties reserved the right to modify or revoke a stipulation if they later determined that the
stipulation was legally or factually erroneous.
After filing their fourth set of stipulations, the parties suggested, and the court adopted, a
schedule for briefing cross-motions for summary judgment on threshold title issues. Plaintiffs
filed their motion for partial summary judgment (“motion”) on August 31, 2017, seeking
judgment in their favor with respect to the claims of all but six of the property owners identified
in their third amended complaint. 4 Defendant filed its response and cross-motion for partial
summary judgment (“cross-motion”) on October 10, 2017, arguing that plaintiffs were entitled to
summary judgment on threshold title issues only for fifty identified claims. According to
defendant, it was entitled to summary judgment with respect to (1) twelve claims of ten property
owners due to their failure to establish that they owned their properties on August 4, 2015, the
date the NITU issued, and (2) at least eighty-nine claims because the owners of the associated
parcels had not established a property interest in the land underlying the railroad right-of-way.
Thereafter, plaintiffs sought a stay of the resolution of the claims contested by defendant
through January 31, 2018, to enable them to conduct additional title research. Over defendant’s
objection, the court granted plaintiffs’ request. 5 Thus, plaintiffs filed their reply in support of
their motion and response to defendant’s cross-motion (“reply and response”) on January 31,
2018. Defendant filed its reply in support of its cross-motion (“reply”) on March 7, 2018. In its
reply, defendant indicates that it now agrees that plaintiffs are entitled to summary judgment on
threshold title issues for sixty-three identified claims, but contends that it is entitled to summary
judgment with respect to (1) four claims of three property owners due to their failure to establish
that they owned their properties on August 4, 2015, the date the NITU issued, and (2) at least
sixty-eight claims because the owners of the associated parcels have not established a property
interest in the land underlying the railroad right-of-way.
Briefing is now complete and the court deems oral argument unnecessary.
II. DISCUSSION
Both plaintiffs and defendant move for summary judgment on threshold title issues
pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”).
4
Specifically, plaintiffs did not seek summary judgment with respect to the claims of
(1) C.C. Dickson Co. (claim 24); (2) Hil-Cri-Mor Hudson Rentals (claim 19); (3) Sheila P. and
Les Ivie (claim 51); (4) James D. Ledbetter (claim 17b); (5) Charles L. and Barbara S. Rogers
(claim 18); or (6) Tommy A. Swan and Anita P. Long on Behalf of the Estate of Phyllis B.
Patterson (claims 56a, 56b, and 56c). As noted above, the claim of Charles L. and Barbara S.
Rogers was subsequently dismissed without prejudice on September 6, 2017.
5
The court later denied plaintiffs’ request to extend this deadline by an additional thirty
days.
-4-
Summary judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
genuine if it “may reasonably be resolved in favor of either party.” Id. at 250.
The moving party bears the initial burden of demonstrating the absence of any genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party then bears the
burden of showing that there are genuine issues of material fact for trial. Id. at 324. Both parties
may carry their burden by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials” or by “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” RCFC 56(c)(1).
The court must view the inferences to be drawn from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). However, the court must not weigh the evidence or make findings of fact.
See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370,
1376 (Fed. Cir. 2002) (“On summary judgment, the question is not the ‘weight’ of the evidence,
but instead the presence of a genuine issue of material fact . . . .”), abrogated on other grounds by
Egyptian Goddess, Inc. v. Swish, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc); Ford Motor Co.
v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); Mansfield v. United States, 71 Fed. Cl.
687, 693 (2006) (“[T]he Court may neither make credibility determinations nor weigh the
evidence and seek to determine the truth of the matter. Further, summary judgment is
inappropriate if the factual record is insufficient to allow the Court to determine the salient legal
issues.”). Entry of summary judgment is mandated against a party who fails to establish “an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp., 477 U.S. at 322. However, if neither party satisfies this burden on the
filing of cross-motions for summary judgment, then the court must deny both motions. See First
Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003) (“When both parties
move for summary judgment, the court must evaluate each motion on its own merits, resolving
reasonable inferences against the party whose motion is under consideration.”); Bubble Room,
Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have
moved for summary judgment does not mean that the court must grant summary judgment to one
party or the other.”).
The issues raised in the parties’ summary judgment motions are threshold title issues,
namely, whether (1) the properties owned by plaintiffs correspond with properties that were
originally conveyed to create the railroad right-of-way described in the NITU; (2) the original
conveyances were easements for railroad purposes; (3) the properties owned by plaintiffs are
immediately adjacent to the railroad right-of-way described in the NITU; and (4) plaintiffs
-5-
owned their properties on August 4, 2015, the date the Board issued the NITU. Plaintiffs bear
the burden of establishing each of these issues in their favor. See, e.g., Klamath Irrigation Dist.
v. United States, 635 F.3d 505, 520 n.12 (Fed. Cir. 2011) (“It is plaintiffs’ burden to establish
cognizable property interests for purposes of their takings . . . claims.”); Am. Pelagic Fishing Co.
v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004) (“[A]s a threshold matter, the court must
determine whether the claimant has established a property interest for purposes of the Fifth
Amendment. . . . If the claimant fails to demonstrate the existence of a legally cognizable
property interest, the court[’]s task is at an end.” (citations omitted)); Cienega Gardens v. United
States, 331 F.3d 1319, 1328 (Fed. Cir. 2003) (“For any Fifth Amendment takings claim, the
complaining party must show it owned a distinct property interest at the time it was allegedly
taken, even for regulatory takings.”); BHL Props., LLC v. United States, 135 Fed. Cl. 222, 229
(2017) (“[I]t is [plaintiffs’] burden to prove [their] ownership of the land abutting the railway
corridor; it is not the government’s burden to disprove it.”).
To facilitate its consideration of the parties’ motions, the court divides plaintiffs’ claims
into the following categories: (1) claims for which defendant agrees that plaintiffs are entitled to
partial summary judgment, (2) claims for which plaintiffs seek partial summary judgment that
were not addressed by defendant, (3) claims for which defendant contends that plaintiffs have
not established ownership of the associated parcels, (4) claims for which defendant contends that
the associated parcels are cut off from the railroad right-of-way by an intervening parcel,
(5) claims for which defendant contends that the associated parcels are cut off from the railroad
right-of-way by an intervening public road, (6) claims for which defendant contends that
plaintiffs have not established a property interest in the land underlying the railroad right-of-way,
and (7) claims that are not addressed by either party. In assessing the parties’ arguments
regarding the claims in categories three through six (and one claim in the first category), the
court primarily (but not exclusively) relies upon the following evidence in the record:
• The deeds reflecting the original conveyance of the right-of-way to Norfolk
Southern’s predecessor, see Third Am. Compl. Exs. 15-17, 20, 25-27, 29, 31-
32, 34, 36, 38-39, 41-44, 48-49, 51-53, 56-57;
• The deeds reflecting conveyances of property to plaintiffs, see Third Am.
Compl. Exs. 21, 64, 74, 76, 82, 88, 90, 92, 98, 102, 106, 108, 115, 121, 123,
133, 135, 143, 162, 168, 172, 176, 186, 194, 196, 202, 208, 212, 220, 222,
230, 236, 248, 250, 258, 260, 264, 266; Reply & Resp. Exs. 2-3, 7-8, 16, 26-
30, 35, 37;
• A series of maps prepared by the Interstate Commerce Commission in June
1916 that depict the railroad right-of-way and the surrounding properties
(“ICC valuation maps”), 6 see Third Am. Compl. Exs. 2-7;
6
ICC valuation maps “depict the right-of-way acquired for the railroad at the time the
railroad was built, and typically provide information on whom the land was acquired from, as
well as a description of the land including its dimensions or approximate boundary.” Reply &
Resp. Ex. 20 ¶ 5.
-6-
• An overview map of the railroad right-of-way prepared by plaintiffs that
depicts the location of their properties, see Mot. Ex. 1;
• The WebGIS maps that defendant obtained from the Cleveland County
website, 7 see Cross-Mot. Exs. 7-8; and
• A plat of the Meadow Brook subdivision, see, e.g., Reply & Resp. Ex. 54.
The court addresses each category in turn. 8
A. Plaintiffs Are Entitled to Summary Judgment on Threshold Title Issues as to the Sixty-
Four Claims for Which Defendant Concedes Entitlement
As an initial matter, defendant has identified sixty-four claims for which it concedes that
plaintiffs are entitled to summary judgment on the threshold title issues: 9
Claim Property Owner Parcel Number
1 Harry Eugene Washburn, Sr., Gerald Donald 2518675605
Washburn, D.P. Washburn, and Evelyn Washburn
Giles
15a Don L. Yelton (a) 2547035597
15b (b) 2547035304
25 Rickey Warren and Deborah Bailey Smith 2546174787
26 2546175578
29 Royster Oil Company, Inc. 2546174092
32a Hoyle Plumbing Company, Inc. (a) 2546059653
7
Defendant submitted a number of WebGIS maps in support of its cross-motion. “GIS”
is an acronym for “geographic information systems,” which “is a computer-based technology
that allows for the collection, storage, display and analysis of geographic data[,] most commonly
displayed as a map or an interactive web-based application.” Reply & Resp. Ex. 20 ¶ 2.
8
For each category, the court provides a table that identifies the relevant claims,
property owners, and parcel numbers. The names of the property owners are taken directly from
the third amended complaint. However, some of the property owners are identified differently in
the parties’ stipulations, summary judgment motions and briefs, and exhibits, including (but not
necessarily limited to) the property owners associated with claims 1, 34a, 34b, 46a, 54, 55, 65,
94, 96, 97, 99, 109, 111, and 117. Before any final judgment is entered for plaintiffs, the parties
shall ensure that the proper individuals or entities are identified as the property owners entitled to
compensation.
9
In its reply, defendant provides that its concession applies to sixty-three claims. The
difference in number is due to defendant combining claims 122a and 122b into a single claim.
-7-
33a Doris W. Elliott (a) 2546058598
33b (b) 2546058586
34a Doris and James Wilson (a) 2546058551
34b (b) 2546058425
35a Dilipkumar S. Patel (a) 2546057386
35b (b) 2546057236
35c (c) 2546057240
36 Jerry Dean Greene 2546058392
38 Peggy Ellis Porter 2546046852
39 Carol H. Price and James Nathan Price 2546045275
40a New Covenant Baptist Church (a) 2546034663
40b (b) 2546036249
42 Joyce Conner Hamrick 2546103734
43a Harry Quinton and Frances M. Hamrick (a) 2545190995
43b (b) 2545198687
44 Victor M. Haynes and Robert A. Haynes 2545198615
45 Cameron Todd Hamrick 2545190594
47 Kenneth Wayne Allen 2545380577
48 Earnest and Mary Wilson 2545271944
49a John L. and Sharon Yvette A. McGill (a) 2545277593
49b (b) 2545279221
52 J. Daryl Hopper 2545467174
53a Thomas F. Hardin (a) 2545740965
53b (b) 2545832637
54 Jody R. Standridge, Stacey Walk, and Deedra 2545634843
Dimsdale on Behalf of the Estate of William Gerald
Standridge
67 Arthur Dale Wellmon, Jewel L. Wellmon Oxner, 2544872938
and Anita L. Wellmon Strange
69 Bobby and Brenda Walker 2544788165
70 Alex Brooks, Jr. 2544787044
72 Joe Tillman and Madonna Rose Costner 2544775961
74 Richard R. and Susan G. Shook 2544769539
75 The Trustees of Ellis Chapel Baptist Church 2544760824
76 2544666504
77a Laura Kaye Lowery (a) 2544674096
77b (b) 2544663913
78 David Thomason and Joyce A. Peake 2544660799
84 Randolph S. and Dawn M. Cole 2544437394
85 Johnny M. and Martha Lavender 2544329889
86 Margaret L. Jackson 2544423458
88a Larry E. Lail (a) 2544411850
88b (b) 2544411743
88c (c) 2544411513
89c Jaqueline H. Lavender (c) 2543373985
-8-
92a Trustees of New Hope Church of Earl (a) 2543371336
92b (b) 2543379389
92c (c) 2543371336
104 M.T. and Frankie Ramey 2543344476
106 Mary Nancy H. Edwards, Stephen Sarratt, Ronald 2543336811
122a R. Miller, and Mark L. Miller (a) 2542175398
122b (b) 2542175398
107 Michael Shane Owle 2543332207
108a Thomas B. Austell, Jr., Robert N. Austell, and (a) 2543323888
108b Hugh F. Austell (b) 2543226282
108c (c) 2543309926
111 Robert Nicholas Austell 2543321072
118 Debbie L. Clay and Elizabeth Hamilton 2542381502
120 Henry Lee Jones 2542370792
121 Adam Davis Brookie 2542278354
In other words, defendant agrees that (1) the identified parcels correspond with property that was
originally conveyed to create the railroad right-of-way described in the NITU; (2) the original
conveyances were easements for railroad purposes; (3) the parcels are immediately adjacent to
the railroad right-of-way described in the NITU; 10 and (4) the identified plaintiffs owned their
parcels on August 4, 2015, the date the Board issued the NITU. Accordingly, the court grants
summary judgment to plaintiffs as to these threshold title issues for the sixty-four identified
claims.
B. Plaintiffs Are Entitled to Summary Judgment on Threshold Title Issues as to Claim 80
One claim that should have been included in the first category, but was not, is claim 80:
Claim Property Owner Parcel Number
80 Whaley, LLC 2544562027
Instead, defendant includes claim 80 in the group of claims, discussed below, in which the
associated parcels are separated from the railroad right-of-way by a public road. However, the
deed submitted by plaintiffs, when read in conjunction with plaintiffs’ overview map, indicates
that the southeastern boundary of the parcel at issue is the railroad right-of-way and that there is
no intervening parcel or public road. Accordingly, the court grants summary judgment to
plaintiffs as to the threshold title issues for claim 80.
10
In its cross-motion, defendant asserted that the parcels associated with these sixty-four
claims–including the parcel owned by Thomas B. Austell, Jr., Robert N. Austell, and Hugh F.
Austell–extend to the centerline of the railroad right-of-way. However, in its reply, defendant
indicates that “Plaintiff Thomas B. Austell, Jr.” owns “the underlying interest subject to the
entire railroad easement, including both sides of the rail corridor . . . .” Reply 6. It is unclear
whether the other property owners in this category who own parcels immediately adjacent to the
railroad right-of-way own the entire railroad right-of-way rather than just to the centerline.
-9-
C. Plaintiffs Are Entitled to Summary Judgment on Threshold Title Issues as to the Eight
Claims Not Addressed by Defendant
The next category of claims before the court includes the eight claims for which plaintiffs
seek partial summary judgment that are not addressed by defendant: 11
Claim Property Owner Parcel Number
11 Margaret E. Causby 2528029197
28a Royster Transport Company, Inc. (a) 2546174312
28b (b) 2546174200
46a Jerry T. Mayo (a) 2545190384
11
In its cross-motion, defendant conceded that plaintiffs were entitled to partial summary
judgment with respect to fifty claims, but that plaintiffs did not provide “evidence establishing
that the remaining 89 parcels actually extend to the center of the rail corridor.” Cross-Mot. 10.
The court is uncertain how defendant determined that there were eighty-nine remaining parcels
(a term that defendant uses interchangeably with “claims”). Other than the fifty conceded
claims, defendant listed nine claims in Table 2, fifty-eight claims in Table 3, one claim in
footnote 8 (the remaining claims listed in footnote 8 were also listed in Table 3), nine claims in
footnote 9 (the remaining claims listed in footnote 9 were also listed in Table 3), seven claims in
footnote 10 (the remaining claims listed in footnote 10 were also listed in Table 3), and one
claim in an unlabeled table on page 7 (the remaining claims in that table were also listed in
footnote 10). In other words, defendant specifically mentioned only eighty-five contested
claims. However, there must have been more than eighty-five remaining claims at the time
defendant filed its cross-motion because defendant did not address eight claims for which
plaintiffs seek partial summary judgment or, as discussed below, the seven claims for which
plaintiffs do not seek partial summary judgment.
In its reply, which was filed after plaintiffs voluntarily dismissed certain claims and
provided additional evidence in support of their motion, defendant indicates that there are 135
claims total, concedes that plaintiffs are entitled to partial summary judgment with respect to
sixty-three of those claims, and argues that it is entitled to summary judgment with respect to the
remaining seventy-two claims. Again, the court is uncertain how defendant calculated these
numbers. Other than the sixty-three conceded claims, defendant lists fifty-three claims in
Exhibit 2 and seven other unique claims in the reply itself (in footnotes 7, 8, and 10, and on
pages 2, 3, and 5). In other words, defendant specifically mentions only sixty contested claims in
its reply. It does not identify the other twelve claims that it contests. Nor does it indicate
whether these unidentified claims include the seven claims for which plaintiffs have not sought
partial summary judgment.
Given this lack of clarity, the court will only assess the parties’ entitlement to summary
judgment with respect to the claims specifically mentioned in the summary judgment motions
and supporting briefs.
-10-
55 Jody R. Standridge, Stacey Walk, and Deedra 2545634163
Dimsdale on Behalf of the Estate of William Gerald
Standridge
79 Melissa Austell Bradshaw 2544565383
81 Royster Oil Company, Inc. 2544550806
90 David A. McSwain 2543384232
The parties stipulated that (1) the identified parcels correspond with property that was originally
conveyed to create the railroad right-of-way described in the NITU; (2) the original conveyances
were easements for railroad purposes; (3) the parcels are immediately adjacent to the railroad
right-of-way described in the NITU; 12 and (4) the identified plaintiffs owned their parcels on
August 4, 2015, the date the Board issued the NITU. Thus, in the absence of any modification or
revocation of those stipulations by defendant, the court grants summary judgment to plaintiffs as
to these threshold title issues for the eight identified claims.
D. Summary Judgment Is Appropriate on the Issue of Ownership With Respect to Claims
16, 89a, and 89b, but Not to Claim 65
With respect to the third category of claims, defendant contends that plaintiffs have not
satisfied their burden of establishing that the identified property owners actually owned the
relevant parcels. The four claims in this category are:
Claim Property Owner Parcel Number
16 Cleveland Lumber Company, Inc. 2547121328
65 13 Penny Denise Canipe, Susan Borders Lail, and 2544883340
Michael Gene Borders
12
In their reply and response, plaintiffs contend that the “[c]enterline presumption
applies” to these eight claims. Reply & Resp. 12; see N.C. Gen. Stat. § 1-44.2(a) (2014)
(“Whenever a railroad abandons a railroad easement, all right, title and interest in the strip, piece
or parcel of land constituting the abandoned easement shall be presumed to be vested in those
persons, firms or corporations owning lots or parcels of land adjacent to the abandoned
easement, with the presumptive ownership of each adjacent landowner extending to the
centerline of the abandoned easement.”); McDonald’s Corp. v. Dwyer, 450 S.E.2d 888, 890-91
(N.C. 1994) (“The general rule is ‘that a call for a monument as a boundary line in a deed will
convey the title of the land to the center of the monument if it has width.’ Subsection (a) of
[N.C. Gen. Stat. § 1-44.2] is consistent with this common law presumption insofar as it applies to
abandoned railroad easements.” (citation omitted) (quoting Goss v. Stidhams, 315 S.E.2d 777,
778 (N.C. App. 1984))).
13
As discussed below, defendant also contends that claim 65 is cut off from the railroad
right-of-way by an intervening public road.
-11-
89a Jaqueline H. Lavender (a) 2543481298
89b 14 (b) 2543481060
Specifically, in its cross-motion, defendant identified apparent deficiencies in the materials
produced by plaintiffs to support their allegation of ownership. In response, plaintiffs submitted
additional documents to establish that the property owners actually owned the parcels at issue.
Defendant, however, contends in its reply that these additional documents also fail to support
plaintiffs’ allegation of ownership.
1. Claim 16
First, with respect to claim 16, defendant contended in its cross-motion that the legal
description in the deed produced by plaintiffs “does not match the tract dimensions delineated in
the county records.” Cross-Mot. 7. With their reply and response, plaintiffs submitted four
deeds that they contend “convey portions of this property to the owner.” Reply & Resp. 9. In its
reply, defendant argues that “none of the deeds produced by [plaintiffs] match[es] the tract
dimensions delineated by the county records, which describe this property as a 15.73-acre
parcel,” and that the five deeds produced by plaintiffs “cover, at most, about 4 acres of the 15.7
acres allegedly owned by [Cleveland Lumber Company, Inc.]” Reply 3. In fact, defendant
argues (albeit incorrectly), 15 “none of the five deeds describe[s] the portion alongside the subject
rail corridor; instead, [each] describe[s] the property on the side abutting S. Morgan Street,
which is located on the opposite of the rail corridor.” Id.
The deeds submitted by plaintiffs describe the dimensions of the parcels as follows:
• The Vinson deed: A 72-by-200-foot parcel, the eastern boundary of which
runs along North Morgan Street for 72 feet;
• The McCurry deed: Two parcels (one that is 54 by 100 feet, and another that
is 24 by 100 feet) that are situated 276 feet to the west of North Morgan
Street, and a third parcel (150 by 63 feet) that does not appear to adjoin North
Morgan Street;
14
As discussed below, defendant also contends that claims 89a and 89b are cut off from
the railroad right-of-way by an intervening public road.
15
One of the deeds–the Dellinger deed–describes land abutting the railroad right-of-way:
That lot in the Northwest square of the City of Shelby, N.C., on the West side of
North Morgan Street, BEGINNING at a stake Morgan Street, Mrs. Tom
Babington’s corner; thence North 2 3/4 East 112 feet to a stake; thence North 87
1/4 West 573 feet to a stake on bank of railroad cut; thence with railroad South 24
East 125 feet to a stake; thence with Mrs. Babington’s line South 87 1/4 East 513
feet to the BEGINNING, containing 1 9/20 acres more or less . . . .
Reply & Resp. Ex. 3 at 29 (emphasis added).
-12-
• The Roberts deed: A 72-by-87-foot parcel, the eastern boundary of which
runs along North Morgan Street for 72 feet;
• The Dellinger deed: A 112-by-573-by-125-by-513-foot parcel, the eastern
boundary of which may run along North Morgan Street for 112 feet, and the
western boundary of which runs along the railroad right-of-way for 125 feet;
and
• The Martin deed: A 100-by-414-foot parcel, the eastern boundary of which
runs along North Morgan Street for 100 feet.
The only map in the record that depicts the location of these parcels is plaintiffs’ overview map,
which suggests that the western boundary of the property constituting claim 16 is the railroad
right-of-way, and that only a part of the property extends as far as North Morgan Street to the
east. However, it is not possible to match up the deeds, which mostly describe the boundaries of
the parcels in relation to the surrounding properties (identified with the owners’ names), with the
property depicted on the map, for two reasons in particular: (1) the deeds describe a boundary
that runs along North Morgan Street for, at most, 356 feet, while the map reflects that the
property runs along North Morgan Street for just under 1000 feet; and (2) the map reflects that
the western boundary of the property runs along the railroad right-of-way for just under 1750
feet, but the deeds only account for 125 feet of that length. In short, the evidence submitted by
plaintiffs is insufficient to determine whether Cleveland Lumber Company, Inc. owns all of the
property constituting claim 16 that abuts the railroad right-of-way. Plaintiffs have only
established such ownership for the portion of the property described in the Dellinger deed, which
is adjacent to the railroad right-of-way for 125 feet. Consequently, the court grants plaintiffs’
motion with respect to the parcel described in the Dellinger deed, and because plaintiffs have not
otherwise satisfied their burden of establishing ownership of property adjacent to the railroad
right-of-way, grants defendant’s cross-motion with respect to the remainder of the property
constituting claim 16. 16
16
The court further notes that although defendant is correct that the deeds submitted by
plaintiffs describe, at most, a four-acre area of land, it provides no evidence in support of its
contention that county records describe claim 16 as a 15.73-acre parcel. These county records
are not part of the record before the court, leaving the court with no way, beyond the assertions
of counsel, to ascertain the size of the parcel. Cf. Meridian Eng’g Co. v. United States, 885 F.3d
1351, 1358 (Fed. Cir. 2018) (“[U]nsworn attorney argument . . . is not evidence . . . .”); Mel
Williamson, Inc. v. United States, 229 Ct. Cl. 846, 848 (1982) (“Argument is not fact.”); Del.,
Lackawanna & W. R.R. Co. v. United States, 54 Ct. Cl. 35, 41-42 (1919) (“The court can not
accept asseverations of counsel, as to facts, made in argument, whether denied or conceded by
the other side at the bar, without any stipulation duly filed or other evidence . . . .”).
-13-
2. Claim 65
Second, with respect to claim 65, defendant contended in its cross-motion that plaintiffs
only produced estate documents, “which do not describe with specificity the property at issue
and do not confirm that the decedent owned it.” Cross-Mot. 7. With their reply and response,
plaintiffs submitted a deed, a death certificate, and a Cleveland County “property card.”
Plaintiffs contend that these documents, in conjunction with the previously submitted estate
documents, establish that Harold and Carolyn Borders acquired the property in 1999, that
Carolyn Borders died in 2000, that Harold Borders died in 2001, and that upon Harold’s death,
his three children inherited the property. In its reply, defendant argues, without any factual
support, that the deed “does not match the tract dimensions delineated by the county records,
which describe this property as being approximately 145 feet in length, running parallel to the
rail corridor.” Reply 3. Moreover, defendant asserts, “[t]he problem in determining whether this
deed is the correct one is exacerbated by the fact that it does not describe the property with any
specificity; rather than describing the property with metes and bounds, it references other deeds
and plat books that were not produced by [plaintiffs].” Id.
The deed submitted by plaintiffs describes the parcel associated with claim 65 as follows:
Being all of Lot Nos 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,
35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53 of
Block “C” of the J.B. Lowery property as shown on a plat as recoded in Plat Book
7, Page 93 of the Cleveland County Registry and reference is hereby made to said
plat for a full metes and bounds description as if fully set out herein.
Reply & Resp. Ex. 7 at 63. This description, on its own, is insufficient to determine whether
Harold Borders’s children own land adjacent to the railroad right-of-way. However, plaintiffs’
overview map depicts the parcel associated with claim 65 as adjacent to the railroad right-of-
way. Further, in support of its cross-motion, defendant submitted a WebGIS map that depicts the
parcel as adjacent to the railroad right-of-way. Although these maps are not sufficient to
establish ownership of the parcel, they do create a genuine issue of material fact. Thus, the court
denies both summary judgment motions with respect to claim 65.
3. Claims 89a and 89b
Third, with respect to claims 89a and 89b, defendant contended in its cross-motion that
plaintiffs did not produce any deeds to establish ownership. With their reply and response,
plaintiffs submitted a deed and estate documents, arguing that this material establishes that C.L.
and Bessie Sue Lavender acquired the property in 1953, that the property was conveyed to their
son Claude Lavender and his wife Jacqueline Lavender, and that Claude Lavender died in 2013,
leaving his widow as the sole owner. In its reply, defendant remarks that the deed produced by
plaintiffs “describes more than 20 parcels,” and states that it “has not been able to match the
description of the parcels in Claims 89a and 89b with any of the parcels described in the deed.”
Reply 3. Defendant also asserts that “the county records” indicate that a deed not supplied by
-14-
plaintiffs–located at page 409 of book 3E–applies to the parcels described in claims 89a and
89b. 17 Id.
As defendant observes, the deed submitted by plaintiffs contains metes-and-bounds
descriptions of twenty separate tracts. These descriptions rely almost entirely on landmarks
(stones, trees, creeks, etc.), surrounding properties (identified by the owners’ names), and
unnamed or currently nonexistent roads to define the boundaries of each tract. Only one of the
tracts is described as being bounded by a railroad right-of-way: tract 13 runs “with Southern
Railroad . . . 950 feet” from “Mrs. J.P. Aydlotte’s line” to “the corner of Hazel Turner’s
land[.]”18 Reply & Resp. Ex. 8 at 72. However, the only map in the record that depicts the
boundaries of the parcels associated with claims 89a and 89b is plaintiffs’ overview map, which
indicates that the two parcels abut the railroad right-of-way for less than 500 feet. Furthermore,
the map reflects that the parcels are bounded by Lavender Road and/or Blacksburg Road, but
neither road is mentioned in the deed plaintiffs submitted. In short, the evidence submitted by
plaintiffs is insufficient to determine whether Jacqueline Lavender owns the parcels associated
with claims 89a and 89b. Consequently, the court grants defendant’s cross-motion with respect
to these claims. Furthermore, as explained below, summary judgment for defendant as to claims
89a and 89b is also appropriate on alternative grounds.
E. Claims for Which Defendant Contends That Plaintiffs Have Not Proven Ownership of
the Land Underlying the Railroad Right-of-Way
For the fourth category of claims, defendant contends that plaintiffs have not established
a property interest in the land underlying the railroad right-of-way. As discussed below,
defendant divides these sixty-one claims into four subcategories. 19
1. Claims Affected by an Intervening Parcel
The first subcategory includes two claims for which defendant argues that the relevant
parcels are separated from the railroad right-of-way by an intervening parcel:
Claim Property Owner Parcel Number
32b Hoyle Plumbing Company, Inc. (b) 2546150563
17
Plaintiffs indicated in their reply and response that they were submitting two new
deeds: one located at page 365 of book 6W, and one located at page 409 at book 13E. However,
plaintiffs only submitted the deed located at page 365 of book 6W.
18
A railroad right-of-way is mentioned in the description of only one other tract–the
third tract of tract 10. However the description indicates that the railroad right-of-way runs
through, not along, the tract. Plaintiffs’ overview map does not depict the parcels associated
with claims 89a or 89b as crossing the railroad right-of-way at any point.
19
One claim (claim 73) appears in two subcategories.
-15-
73 20 Robert Carl and Marilyn D. Merck 2544773856
Specifically, defendant contended in its cross-motion that “WebGIS maps . . . confirm that the
claims . . . have intervening parcels, and therefore do not extend to the center of the rail
corridor.” 21 Cross-Mot. 10. In response, plaintiffs argue that the maps submitted by defendant
do not support its contention of an intervening parcel. Rather, they assert, the GIS maps attached
to their reply and response indicate that the parcels at issue abut the railroad right-of-way.
Defendant, in its reply, contends that the maps submitted by plaintiffs actually establish the
existence of an intervening parcel.
With respect to claim 32b, the maps submitted by the parties depict differing boundaries
for the parcel at issue. Defendant’s map depicts the parcel as abutting the eastern edge of South
Morgan Street, while plaintiffs’ map depicts the parcel as extending beyond the western edge of
South Morgan Street. Problematically, the only deed pertaining to this parcel in the record lacks
a metes-and-bounds description that could clarify the true boundaries of the parcel:
Located in the City of Shelby, in the section known as South Shelby, and being all
of Lot No. 17 of the Consolidated Textile Co., Inc. property as shown on plat
thereof prepared from an actual survey by G. Sam Rowe, Registered Civil
Engineer, dated September 16, 1955, of record in Book of Plats No. 7 at Page 8,
Cleveland County Public Registry, North Carolina, reference to the said plat, and
the record thereof, being hereby made for a full and complete description and
identification of said lot.
Third Am. Compl. Ex. 160 at 435. Thus, the court has no way to ascertain which map accurately
depicts the parcel. Moreover, plaintiffs’ map is confusing; it appears to indicate, contrary to their
assertion, the existence of an intervening parcel. Because neither plaintiffs nor defendant has
established the absence of a genuine issue of material fact regarding the boundaries of the parcel
described in claim 32b, the court denies both motions with respect to that claim.
20
As discussed below, defendant also contends that the parcel described in claim 73 is
cut off from the railroad right-of-way by an intervening public road.
21
The WebGIS maps submitted by defendant all bear the URL of the source website
(http://www.webgis.net/nc/Cleveland), and the website includes the following disclaimer:
The information contained on this site is furnished by government and private
industry sources and is believed to be accurate but accuracy is not guaranteed.
Mapping information is a representation of various data sources and is not a
substitute for information that would result from an accurate land survey. The
information contained hereon does not replace information that may be obtained
by consulting the information’s official source. In no event shall Cleveland
County, NC or the consultants of Cleveland County, NC be liable for any
damages, direct or consequential, from the use of the information contained on
this site.
-16-
With respect to claim 73, the maps submitted by the parties once again depict differing
boundaries for the parcel at issue. Based on the metes-and-bounds description contained in the
relevant deed, defendant’s map contains the accurate depiction: a rectangular parcel (100 by 221
feet) with one side running along the southwestern edge of Peeler Street and an adjacent side
running along the northwestern edge of North Carolina Highway 180 (“Highway 180”). 22
However, both maps depict the boundaries of the purportedly intervening parcel as only partially
cutting off the relevant parcel from the railroad right-of-way, with approximately 3/4 of the
southeastern side of the parcel being adjacent to a public road, which itself is adjacent to land
that appears to be a combination of the public road right-of-way and the railroad right-of-way.
Because there is no material dispute regarding the existence of a parcel that partially cuts off the
parcel associated with claim 73 from the railroad right-of-way, the court grants in part
defendant’s cross-motion with respect to the portion of the parcel adjacent to the intervening
parcel. However, because defendant also contends that Highway 180 cuts off the parcel from the
railroad right-of-way, the court defers ruling on plaintiffs’ motion until the following section.
2. Claims Affected by an Intervening Public Road
Next, for fifty-eight of plaintiffs’ claims, 23 defendant contends that plaintiffs have not
established that they own the land underlying the railroad right-of-way because a public road
separates the relevant parcels from the railroad right-of-way. These claims include the
following:
Claim Property Owner Parcel Number
2 M&B Associates, Inc. 2518834152
3 James W. Morgan, Joseph H. Morgan, and Eleanor 2518921759
Ann Morgan
13 Capitol Funds, Inc. 2527199552
23a (a) 2546181964
23b (b) 2546181265
20a Don A. and Linda H. Jones (a) 2547106861
20b (b) 2547106776
22 Royster P&M Warehouse, Inc. 2546190578
27 Thurman Larry Moore, POA for Annie M. Moore 2546171485
30a Carter Chevrolet Inc. (a) 2546161704
30b (b) 2546160713
30c (c) 2546069513
41 Melinda Tessneer 2546027714
22
Contrary to the legal description in the deed, the parcel depicted on plaintiffs’ map is
not rectangular and extends beyond the southeastern edge of Highway 180.
23
Defendant identifies most of these claims in its reply in footnotes 7, 8, and 9, and in
Exhibit 2. Two claims–claims 60 and 61a–are only identified in defendant’s cross-motion (in
footnote 9).
-17-
58 Vickie M. Powell 2544899387
59 William Keith and Phyllis H. Hamrick 2544895359
60 Craig P. Gates, Inc. 2544894275
61a Joseph and Rebecca Barnes (a) 2544893054
62 Dawn Renee Greene 2544885663
63 Hamrick Bennet Heirs 2544884477
64 Lee Van and Penny Denise Canipe 2544884316
65 24 Penny Denise Canipe, Susan Borders Lail, and 2544883340
Michael Gene Borders
66 Charlotte Ellis, on Behalf of Barbara C. Hopper’s 2544882194
Estate
68 Victoria Lynn Hope 2544778874
71 Tracy Lee Kale and Penny Champion Kale 2544786047
73 25 Robert Carl and Marilyn D. Merck 2544773856
82 Patsy L. Coulson 2544445185
83 Jewell S. Hyman 2544435974
87 Mary Jeannine Allen 2544411976
89a Jaqueline H. Lavender (a) 2543481298
89b 26 (b) 2543481060
91 Elizabeth Lee Lavender 2543378857
93a Gene R. Deaton, II (a) 2543269651
93b (b) 2543269534
94 Sheree W. Dotson f/k/a Sheree W. Johnson, and 2543269416
Margaret Sue White
95 Robert Michael Wilkins 2543258867
102a (a) 2543340870
102b 27 (b) 2543258867
24
As discussed above, defendant also contends that plaintiffs have not satisfied their
burden of establishing that the property owner associated with claim 65 actually owns the parcel
at issue. The court denied summary judgment to both plaintiffs and defendant on this issue.
25
As discussed above, defendant also contends that the parcel described in claim 73 is
cut off from the railroad right-of-way by an intervening parcel. The court granted summary
judgment in part to defendant on this issue.
26
As discussed above, defendant also contends that plaintiffs have not satisfied their
burden of establishing that the identified property owner associated with claims 89a and 89b
actually owns the parcels at issue. The court granted summary judgment to defendant on this
issue.
27
The first set of joint stipulations and Exhibit A to plaintiffs’ motion indicate that the
parcel numbers for claim 102a are 2543248704 and 25433408, and that the parcel number for
claim 102b is 2543258867 (the same as for claim 95). However, the second and fourth set of
joint stipulations and Exhibit 1 to plaintiffs’ motion indicate that the parcel number for claim
-18-
96 Leland C. and Laladge J. Moss 2543352883
97 Bobby A. and Ann M. Thackerson 2543352699
98a Tim White and Sheree Dotson (a) 2543258784
98b (b) 2543259425
99 Jonathan E. and Janet M. Doupe 2543258696
100 Sue M. White 2543259174
101a Keith and Pattie Ellis Norman (a) 2543353157
101b (b) 2543353076
103 Julie A. Owle 2543345517
105a Lena M. Francis (a) 2543347236
105b (b) 2543347236
109 Daniel Wray Dedmon 2543216138
110 Dennis Coleman 2543216013
112 Mary E. Abernathy 2543205777
113 Gisela A. Bowen 2543205620
114 Kathy T. Carter 2543202090
115 Roy M. Rizzo 2542292773
116 Andrew Thomas Dedmon 2542199691
117 William R. and Elizabeth Poston Cameron 2542192190
119a Rodney Harold and Sara O. Powell 2542188389
119b
By way of background, North Carolina has codified the common-law presumption that
owners of land adjacent to an abandoned railroad easement own to the centerline of the
easement. 28 See N.C. Gen. Stat. § 1-44.2; McDonald’s Corp., 450 S.E.2d at 890-91. However,
pursuant to the statute codifying the presumption, North Carolina General Statutes section 1-44.2
(“section 1-44.2”), a different rule applies when the abandoned railroad easement adjoins a
public road right-of-way. Relying on the latter rule, defendant argues that because the parcels
described in the fifty-eight claims at issue are separated from the railroad right-of-way by a
public road, they do not include the land underlying the railroad right-of-way.
In response, plaintiffs assert that the six public roads at issue–Washburn Switch Road,
South Morgan Street, South Post Road, Topic Street, Blacksburg Road, and Bettis Road–are
102a is 2543340870, and that the parcel number for claim 102b is 2543248704. These latter
parcel numbers appear to be the correct parcel numbers.
28
North Carolina is one of a small number of states that has codified the centerline
presumption. See Danaya C. Wright, Doing a Double Take: Rail-Trail Takings Litigation in the
Post-Brandt Trust Era, 39 Vt. L. Rev. 703, 726 (2015) (“At least four states have passed
legislation providing that adjoining landowners will be deemed to own to the centerline of
abandoned railroad corridors (where the railroad held only an easement): Arkansas, Indiana,
Iowa, and North Carolina.”)
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easements. 29 Because easements do not affect title to the underlying fee estate, plaintiffs argue
that the centerline presumption set forth in section 1-44.2(a) applies to the parcels at issue.
Additionally, for certain claims, plaintiffs contend that the legal descriptions in the relevant
deeds support their contention that those parcels extend to the centerline of the railroad right-of-
way. Finally, plaintiffs generally argue that defendant has misconstrued section 1-44.2(a) to cut
off their property interests underlying the railroad right-of-way.
a. Section 1-44.2(a)
Central to the parties’ contentions is the meaning and application of section 1-44.2.
Thus, the court turns to the text of that statute to ascertain how it should be construed. See
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (“In statutory
construction, we begin ‘with the language of the statute.’” (quoting Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002))).
Section 1-44.2 is titled “Presumptive ownership of abandoned railroad easements” and
provides, in relevant part:
(a) Whenever a railroad abandons a railroad easement, all right, title and interest
in the strip, piece or parcel of land constituting the abandoned easement shall be
presumed to be vested in those persons, firms or corporations owning lots or
parcels of land adjacent to the abandoned easement, with the presumptive
ownership of each adjacent landowner extending to the centerline of the
abandoned easement. In cases where the railroad easement adjoins a public road
right-of-way, the adjacent property owner’s right, title and interest in the
abandoned railroad easement shall extend to the nearest edge of the public road
right-of-way.
....
(b) The presumption established by this section is rebuttable by showing that a
party has good and valid title to the land.
N.C. Gen. Stat. § 1-44.2. In short, the statute provides the answer to two questions: (1) Who
owns an abandoned railroad easement when that easement is adjacent to multiple parcels of
land? (2) Who owns an abandoned railroad easement when that easement adjoins a public road
right-of-way?
29
In support of this contention, plaintiffs offer an affidavit from an employee of the
North Carolina Department of Transportation (“NCDOT”) that indicates that NCDOT could not
locate any information regarding whether the state acquired the roads at issue by easement or fee,
and therefore NCDOT holds right-of-way easements for maintenance purposes. However, the
affidavit applies only to South Morgan Street, South Post Road, Blacksburg Road, and Bettis
Road. It does not mention Washburn Switch Road or Topic Street.
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question in Nelson v. Battle Forest Friends Meeting, 436 S.E.2d 122 (N.C. 1993). 30 In such
circumstances, the court held, “the public road right-of-way [does] not adjoin the abandoned
railroad easement and the second sentence of [section] 1-44.2(a) does not apply . . . .” Id. at 124;
see also id. at 125 (“We believe that the definition of ‘adjoin’ does not include a tract which . . .
is included within the bounds of another tract. To adjoin, a tract must be ‘close to or in contact,’
‘next to’ or ‘touching.’”). Consequently, the two adjacent landowners would each own to the
centerline of the abandoned railroad easement pursuant to the first sentence of section 1-44.2(a).
Id. at 125.
b. Summary Judgment Is Not Appropriate as to the Thirty-Three Claims Where the
Intervening Public Road May Be Situated Completely Within the Railroad Right-of-Way
It is undisputed that for all fifty-eight claims in this second subcategory, the relevant
parcels are akin to Parcel B in Figure 2–separated from the railroad line by a public road. Thus,
pursuant to the second sentence of section 1-44.2(a), if the public road right-of-way adjoins the
railroad right-of-way, then whoever owns the property on the other side of the railroad right-of-
way (the property akin to Parcel A in Figure 2) presumptively owns the entirety of the railroad
right-of-way. However, for many of the fifty-eight claims identified by defendant, the evidence
submitted by the parties suggests, but does not definitively establish, that the public road is
situated within the confines of the railroad right-of-way.
To reach this conclusion, the court first reviewed the deeds reflecting the original
conveyances to Norfolk Southern’s predecessor to determine the width of the railroad right-of-
way. These deeds generally reflect that the railroad right-of-way is 100 feet wide (fifty feet from
each side of the centerline). 31 Next, the court reviewed the deeds reflecting the conveyance of
30
North Carolina state appellate courts have not otherwise addressed the public-road-
right-of-way provision of section 1-44.2(a).
31
Many of the deeds explicitly granted a 100-foot-wide right-of-way. However, the
remaining deeds were not as clear. For example, the court was unable to ascertain the width of
the right-of-way granted in the deed marked as Exhibit 27 because the deed is illegible. In
addition, the deeds in Exhibits 17, 48, and 49 only describe a five-foot-wide right-of-way, but a
review of plaintiffs’ overview map reflects that there is another deed conveying a wider right-of-
way at that location. Further, in the deeds marked as Exhibits 20, 34, 44, and 52, the space
where the width of the right-of-way was to be written was left blank, and in the deed marked as
Exhibit 51, the width of the right-of-way was unstated. Finally, plaintiffs did not include the
second page of the deed submitted as Exhibit 36, which presumably is the page that sets forth the
width of the right-of-way. Despite these issues, the court recognizes that North Carolina law, at
the time Norfolk Southern’s predecessor acquired its easement in the late 1880s, generally
limited the width of railroad rights-of-way to 100 feet. See The Code of North Carolina, ch. 49,
§ 1957(4) (1883) (indicating that the General Assembly, during its 1871-1872 session, enacted a
law providing that “[e]very railroad corporation shall have power . . . [t]o lay out its road not
exceeding one hundred feet in width”). But see Battle’s Revisal of the Public Statutes of North
Carolina, ch. 99, § 29(4) (1873) (indicating that the General Assembly, during its 1871-1872
session, enacted a law–the same law described in the 1883 code–providing that “[e]very
corporation formed under this chapter shall have power . . . [t]o lay out its road not exceeding
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the relevant parcels to the current property owners to determine how the boundaries of the
parcels were described; in some cases, the deeds did not include a metes-and-bounds description,
but plaintiffs submitted a subdivision plat that indicated the boundaries of the parcels. 32 The
court then roughly outlined the parcels’ boundaries on the WebGIS maps submitted by defendant
and, using the scales on the maps, determined whether it was possible that the public road was
within the railroad right-of-way. For the following thirty-three claims, the court determined that
it was possible (and in some cases, quite likely) that the public road exists within the railroad
right-of-way: 2, 3, 13, 22, 23a, 23b, 27, 30a, 30b, 30c, 41, 58, 64, 66, 73 (the portion not
affected by the intervening parcel), 87, 91, 93a, 93b, 95, 96, 98a, 98b, 102a, 102b, 103, 109, 110,
112, 113, 114, 116, and 117. If the public road rights-of-way do, in fact, exist solely within the
confines of the railroad right-of-way, then the owners of the parcels described in these claims
presumptively own to the centerline of the railroad right-of-way, Nelson, 436 S.E.2d at 124-25,
unless another party establishes “good and valid title to the land,” N.C. Gen. Stat. § 1-44.2(b).
In applying section 1-44.2, as clarified by Nelson, to plaintiffs’ claims, the court has
necessarily rejected several of the arguments advanced by the parties. For example, defendant
argues that because the deeds associated with the claims at issue specifically identify one of the
parcels’ boundaries as the near edge or centerline of the public road or as the near edge of the
railroad right-of-way, the relevant plaintiffs cannot own to the centerline of the railroad right-of-
way. This argument reflects a misunderstanding of section 1-44.2, which applies to parcels that
are “adjacent” to an abandoned railroad easement. There is no requirement that the parcels
underlie the easement for the centerline presumption (or the public-road-right-of-way exception)
to attach.
In addition, plaintiffs argue that Washburn Switch Road, South Morgan Street, and South
Post Road are easements and therefore the centerline presumption applies to the adjacent parcels.
However, a public road that is an easement is exactly the situation addressed by section 1-44.2,
which is expressly concerned with the effect of a “public road right-of-way” on the ownership of
an abandoned railroad easement.
Plaintiffs further assert that two of the public roads at issue–Blacksburg Road and Bettis
Road–existed at the time Norfolk Southern’s predecessor acquired its right-of-way. 33
Consequently, they argue that the property owners who conveyed easements to the railroad must
twelve rods [198 feet] in width”); Hendrix v. S. Ry. Co., 77 S.E. 1001, 1004-05 (N.C. 1913)
(holding that when a deed “conveys ‘all right, title and claim to so much of our land as may be
occupied by the said railroad, its banks, ditches and works,’ . . . the right of way of the [railroad]
is confined to the land occupied for its tracks, banks, ditches, and works, but that such
occupation . . . may be extended from time to time, . . . not to exceed, however, the width of the
right of way provided in its charter.”). The court further recognizes that the ICC valuation maps
generally depict a railroad right-of-way not exceeding 100 feet in width.
32
The claims for which the deeds lacked metes-and-bounds descriptions are claims 109,
110, 112, 113, and 114.
33
Plaintiffs’ assertion is based on the ICC valuation maps.
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have owned the land underlying the roads, therefore rebutting the presumption that that the
owner of the property on the opposite side of the railroad right-of-way owns the entire railroad
right-of-way. However, as defendant notes, plaintiffs have not provided evidence that the land
underlying the public road was conveyed to subsequent purchasers. The only deeds before the
court indicate that the relevant boundary is either the near edge or centerline of the public road,
or the edge of the railroad right-of-way (which might coincide with the near edge or centerline of
the road). The court has no way of ascertaining whether a prior owner of the parcel that included
the railroad right-of-way divided that parcel in such a way as to convey the land underlying the
railroad right-of-way to a purchaser not in the relevant plaintiff’s chain of title.
In short, the court finds that the proper application of section 1-44.2, as clarified by
Nelson, might result in the conclusion that the plaintiffs who own the parcels associated with the
thirty-three claims at issue presumptively own to the centerline of the railroad right-of-way.
However, because its method for ascertaining the location of the public road rights-of-way is
necessarily imprecise, the court declines to grant summary judgment to plaintiffs or defendant as
to these thirty-three claims. In other words, there is a genuine issue of material fact as to the
property interest owned by the relevant plaintiffs. To prove that these plaintiffs presumptively
own to the centerline of the railroad right-of-way, plaintiffs will need to marshal evidence
establishing that the public road rights-of-way are, in fact, situated within the railroad right-of-
way. 34
c. Summary Judgment Is Not Appropriate as to Eleven Additional Claims Where the
Intervening Public Road May Be Situated Completely Within the Railroad Right-of-Way
The thirty-three claims described above are not the only claims for which the Nelson rule
might operate to grant presumptive ownership to the centerline of the railroad right-of-way
pursuant to the first sentence of section 1-44.2(a). There are eleven additional claims for which
the public road might lie within the railroad right-of way. Because of their unique attributes, the
court addresses each claim separately.
Claim 59. The deed associated with claim 59 describes a 200-foot-deep parcel bounded
by Fourth Street to the north, Wright Avenue to the west, lot 41 to the south, and Broad Street to
the east. However, the boundaries depicted on the WebGIS map submitted by defendant are
different; the map shows the 200-foot-deep parcel bounded by an unnamed dirt track to the
north, Topic Court to the west, Topic Street to the south, and nothing in particular to the east.
The map further reflects that approximately sixty-five feet east of the eastern boundary of the
parcel is Topic Street (which is T-shaped), that the railroad line is situated to the east of Topic
34
Plaintiffs will also need to marshal evidence to establish that Washburn Switch Road
is an easement and not a fee estate to prevail with respect to claims 2, 3, and 13. Further,
although the parties stipulated that plaintiffs owned the parcels associated with claims 98a, 98b,
and 116, and although WebGIS maps submitted by defendant depict the eastern boundary of
these parcels as the western edge of Bettis Road, plaintiffs did not submit the relevant deeds that
would allow the court to ascertain how the eastern boundary of the parcels is actually described.
(The deeds submitted by plaintiffs–Exhibits 115 and 121 to their third amended complaint–were
not the correct deeds.)
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Street, and that South Post Road lies to the east of the railroad line. Plaintiffs aver that South
Post Road is the current name of Broad Street at this location (in Patterson Springs, North
Carolina). 35 However, the relevant ICC valuation map–which shows the parcel as being
bounded by Fourth Street, Wright Avenue, lot 41, and Broad Street–suggests that the deed’s
reference to Broad Street is actually a reference to the road now called Topic Street, and not
South Post Road. Based on the description in the deed, and to the extent that South Post Road is
the current name of Broad Street, plaintiffs may be able to overcome the presumption set forth in
the second sentence of section 1-44.2(a) since the eastern boundary of the parcel would fall
beyond (and therefore include) the railroad line. However, based on the WebGIS and ICC
valuation maps, Topic Street is an intervening road, and may be situated completely within the
railroad right-of-way. Because there is conflicting evidence in the record concerning the precise
boundaries of the parcel, the court declines to grant summary judgment to plaintiffs or defendant
with respect to claim 59. 36
Claim 60. The deed associated with claim 60 describes a 200-foot-deep parcel bounded
by Fourth Street to the north, Wright Avenue to the west, lot 41 to the south, and Broad Street to
the east. However, the boundaries depicted on the WebGIS map submitted by defendant are
different; the map shows the 200-foot-deep parcel bounded by Topic Street to the north, Topic
Court to the west, lot 41 to the south, and nothing in particular to the east. The map further
reflects that this parcel is adjacent to the parcel associated with claim 59, and that similar to the
latter parcel, Topic Street, the railroad right-of-way, and South Post Road are situated–in that
order–to its east. Accordingly, the court’s analysis of claim 59, as well as the conclusion it
reached, applies equally to claim 60.
Claim 61a. The deed associated with claim 61a includes a metes-and-bounds description
of a 100-by-200-foot parcel, and generally describes the parcel as
Being all of that property denominates “Third Lot” in that conveyance of B.T.
Falls, Commissioner to J.Q. Earl, dated November 7, 1933, the same being all of
Lot No. 10 of the L.H. Paterson land as shown on map of said lands in Special
Proceedings Number 1919 in the Office of the Clerk of the Superior Court for
Cleveland County, North Carolina . . . .
Third Am. Compl. Ex. 74 at 209. Neither the metes-and-bounds description nor the general
description is sufficient to ascertain the precise location of the parcel or how the parcel is situated
with respect to the railroad right-of-way or any intervening public roads. The only map in the
record that shows the location of parcel is plaintiffs’ overview map, 37 which suggests that the
35
As described below, further south along the railroad right-of-way, in Earl, North
Carolina, the current name of Broad Street is Bettis Road and/or Blacksburg Road.
36
In addition to proving the boundaries of the parcel associated with claim 59, plaintiffs
will need to marshal evidence that Topic Street is an easement and not a fee estate.
37
The relevant valuation map (submitted by plaintiffs as Exhibit 3 to their third amended
complaint) does not depict the “Lot No. 10” mentioned in the deed.
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parcel is similarly situated to the parcels associated with claims 59 and 60 in that Topic Street,
the railroad right-of-way, and South Post Road lie to its east. Thus, notwithstanding plaintiffs’
failure to establish the absence of a genuine issue of material fact, the court treats claim 61a in
the same manner as those claims and declines to grant summary judgment to plaintiffs or
defendant.
Claim 68. The deed associated with claim 68 indicates that the southwestern point of the
roughly triangular-shaped parcel is an “iron pin set in the Southern Railroad Right-of-Way” and
that the boundary line runs to the northeast in three segments to “an unmarked point on the
N.C.D.O.T. Right of Way[.]” Reply & Resp. Ex. 16. The WebGIS map submitted by defendant
reflects that there are possibly two intervening roads affecting the relevant plaintiff’s property
interest in the railroad right-of-way: Brierwood Farms Road and South Post Road. The court
cannot ascertain, from the metes-and-bounds description in the deed, the extent to which these
two roads are situated within the railroad right-of-way. Thus, the court declines to grant
summary judgment to plaintiffs or defendant with respect to claim 68.
Claims 97 and 99. The parcels associated with claims 97 and 99 are situated on opposite
sides of the railroad right-of-way, with Blacksburg Road and Bettis Road constituting
intervening public roads for each parcel, respectively (and Bettis Road appearing to be fully
contained within the railroad right-of-way). The deed associated with claim 97 indicates that the
western boundary of the parcel is the east edge of the “Broad Street (N.C. Hwy. 198)” right-of-
way, which is also the “East edge of the right of way of Southern Railroad.” Third Am. Compl.
Ex. 250 (emphasis added). The deed associated with claim 99 indicates that the eastern
boundary of the parcel is the “West edge of Broad Street.” Third Am. Compl. Ex. 123.
Plaintiffs aver that Broad Street is now known as Bettis Road at this location (in Earl, North
Carolina). However, North Carolina Highway 198 is, in the vicinity of the two parcels at issue,
currently known as Blacksburg Road, not Bettis Road, 38 and the WebGIS map submitted by
defendant suggests that the western boundary of the parcel associated with claim 97 is
Blacksburg Road. Moreover, the relevant ICC valuation map depicts both roads, with the road
currently known as Bettis Road labeled as both “Broad St.” (in white print) and as a “dirt street”
(in yellow handwriting), and the road currently known as Blacksburg Road labeled as both
“Broad St.” (in black handwriting), and as a “dirt” street (in yellow handwriting). Given the
uncertainty regarding what the two deeds mean by “Broad Street,” it is not possible for the court
to ascertain the western boundary of the parcel associated with claim 97 or, consequently, how to
apply the rules set forth in section 1-44.2(a) as between the parcels associated with claims 97 and
99. Thus, the court declines to grant summary judgment to plaintiffs or defendant with respect to
claims 97 and 99.
Claim 100. The deed associated with claim 100 describes the parcel as “lots numbers 50
and 51 . . . .” Third Am. Compl. Ex. 260 at 723. Although the deed lacks a metes-and-bounds
description, when it is read in conjunction with the relevant ICC valuation map, it is apparent
that the eastern boundary of the parcel is the road currently known as Bettis Road. According to
the WebGIS map submitted by defendant, Bettis Road may exist completely within the railroad
38
The court takes judicial notice of this fact pursuant to Rule 201(b)(2) of the Federal
Rules of Evidence.
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right-of-way. Thus, the proper application of section 1-44.2(a), as clarified by Nelson, might
result in the conclusion that the plaintiff who owns the parcel associated with claim 100
presumptively owns to the centerline of the railroad right-of-way. Thus, the court declines to
grant summary judgment to plaintiffs or defendant with respect to claim 100.
Claims 101a and 101b. The deeds associated with claims 101a and 101b indicate that the
western boundary of both parcels is the “East edge of Broad Street.” Third Am. Compl. Ex. 208
at 551, 553. Although the WebGIS map submitted by defendant suggests that the western
boundary of the parcels is the eastern edge of Blacksburg Road, as noted with respect to claims
97 and 99, there is a lack of clarity regarding whether the eastern edge of Broad Street is actually
the eastern edge of Bettis Road or the eastern edge of Blacksburg Road. Accordingly, it is not
possible to ascertain the western boundary of the parcels associated with these claims or,
consequently, how the rules set forth in section 1-44.2(a) should be applied to the parcels. The
court therefore declines to grant summary judgment to plaintiffs or defendant with respect to
claims 101a and 101b.
Claims 105a and 105b. The deed associated with claims 105a and 105b includes a
(somewhat opaque) metes-and-bounds description of a single parcel (leading defendant to refer
to the claim as “claim 105”). Using an informal diagram submitted by plaintiffs as a guide, the
court was able to trace the approximate boundary of the parcel on the WebGIS map submitted by
defendant. The southern end of the western boundary of the parcel appears to be adjacent to the
railroad right-of-way with no intervening road, and the northern end of the western boundary of
the parcel is separated from the railroad right-of-way by Blacksburg Road. Further, it appears
that at least a portion of Blacksburg Road may be completely encompassed within the railroad
right-of-way. Thus, the proper application of section 1-44.2(a), as clarified by Nelson, might
result in the conclusion that the plaintiff who owns the parcel associated with claim 100
presumptively owns to the centerline of the railroad right-of-way (due to the operation of the first
sentence of section 1-44.2(a) with respect to the southern portion of the western boundary of the
parcel, and the holding of Nelson with respect to the northern portion of the western boundary of
the parcel). Thus, the court declines to grant summary judgment to plaintiffs or defendant with
respect to claims 105a and 105b.
d. Summary Judgment Is Not Appropriate as to Six Additional Claims Where, Pursuant
to Evidence Submitted by Defendant, the Intervening Public Road May Be Situated
Completely Within the Railroad Right-of-Way
There are an additional six claims for which the evidence submitted by the parties
suggests that the public road might exist completely within the railroad right-of way: claims 20a,
20b, 63, 65, 71, and 115. 39 For these claims, the deeds submitted by plaintiffs lack a metes-and-
bounds description from which the court could ascertain the boundaries of the parcels at issue.
However, the WebGIS maps submitted by defendant suggest that the parcels are adjacent to the
public road and that the public road may be within the railroad right-of way. Although it is
plaintiffs’ burden to establish that their property is adjacent to the railroad right-of-way, the court
39
The court previously denied the parties’ summary judgment motions as to claim 65 on
different grounds.
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will not ignore evidence in the record suggesting the existence of a genuine issue of material
fact. Accordingly, the court declines to grant summary judgment to plaintiffs or defendant with
respect to these six claims.
e. Defendant Is Entitled to Summary Judgment as to Claims 82, 83, 89a, 89b, 119a, and
119b
In contrast with the claims discussed above, the court concludes that plaintiffs have not
satisfied their burden of establishing that the parcels associated with claims 82, 83, 89a, 89b,
119a, and 119b are adjacent to the railroad right-of-way. 40 For claims 82 and 83, the deeds
submitted by plaintiffs do not contain a metes-and-bounds description of the associated parcels,
but instead indicate that such a description can be found in a recorded subdivision plat.
However, plaintiffs did not submit the plat in support of its motion, leaving the court with no
way to ascertain the boundaries of the parcels at issue. Further, the WebGIS maps submitted by
defendant suggest that the eastern boundary of the parcels is Blacksburg Road and that
Blacksburg Road does not lie within the railroad right-of-way. Thus, in the absence of any
evidence in the record that the parcels associated with claims 82 and 83 include the railroad
right-of-way or that Blacksburg Road is encompassed within the railroad right-of-way, plaintiffs
have failed to establish that the second sentence of section 1-44.2(a) does not operate to deprive
the owners of the parcels of any interest in the railroad right-of-way.
For claims 89a and 89b, the deed submitted by plaintiffs contains, as previously noted,
metes-and-bounds descriptions of twenty separate tracts, and these descriptions rely almost
entirely on landmarks (stones, trees, creeks, etc.), surrounding properties (identified by the
owners’ names), and unnamed or currently nonexistent roads to define the boundaries of each
tract. As also noted above, the only map in the record that depicts the boundaries of the parcels
associated with claims 89a and 89b is plaintiffs’ overview map, which indicates that the parcel
associated with claim 89a is situated at the corner of Lavender Road and Blacksburg Road, and
that one of the boundaries of the parcel associated with claim 89b is Blacksburg Road. This map
is not nearly detailed enough for the court to ascertain whether the any of the tracts described in
the deed coincide with the parcels depicted on the map. Furthermore, the overview map suggests
that Blacksburg Road is situated between the parcels and the railroad right-of-way. Thus, in the
absence of any evidence in the record that the parcels associated with claims 89a and 89b include
the railroad right-of-way, 41 or that Blacksburg Road is encompassed within the railroad right-of-
way, plaintiffs have failed to establish that the second sentence of section 1-44.2(a) does not
operate to deprive the owners of the parcels of any interest in the railroad right-of-way.
For claims 119a and 119b, the deed submitted by plaintiffs includes a (somewhat opaque)
metes-and-bounds description of a single parcel. Unfortunately, the sole map submitted by the
40
The court previously granted defendant’s cross-motion as to claims 89a and 89b on
different grounds.
41
As noted above, the deed’s description of one of the tracts indicates that the tract runs
along a railroad right-of-way for 950 feet, but plaintiffs’ overview map suggests that the parcels
associated with claims 89a and 89b run along the railroad right-of-way for less than 500 feet.
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parties showing the location of the parcel is plaintiffs’ overview map, which only allows for a
very rough determination of the parcel’s boundaries. From this map, it appears that the southern
portion of the parcel may adjoin the railroad right-of-way with no intervening public road, and
that the northern portion of the parcel is separated from the railroad right-of-way by Bettis Road.
However, especially in light of the fact that the legal description of the parcel lacks any reference
to the railroad right-of-way, the court cannot ascertain the extent to which Bettis Road is
encompassed within the railroad right-of-way. In short, the evidence submitted by plaintiffs is
insufficient to determine whether the southern portion of the parcel is adjacent to the railroad
right-of-way, and whether Bettis Road is situated within the railroad right-of-way such that the
second sentence of section 1-44.2(a) is inapplicable.
In sum, defendant is entitled to summary judgment as to claims 82, 83, 89a, 89b, 119a,
and 119b.
f. Plaintiffs Are Entitled to Summary Judgment as to Claims 62 and 94
For the final two claims that implicate an intervening public road, claims 62 and 94, the
court concludes that plaintiffs have satisfied their burden of establishing that the pertinent parcels
are adjacent to the railroad right-of-way. With respect claim 62, the associated deed indicates
that the western boundary of the parcel is the center of Highway 180 (South Post Road), which is
“50 feet from the center of the Southern Railway track[.]” Reply & Resp. Ex. 28. In other
words, half of the intervening public road is situated within the railroad right-of-way. As
explained in Nelson, the second sentence of section 1-44.2(a) applies only when a public road
right-of-way adjoins an abandoned railroad easement. 436 S.E.2d at 124-25. The North
Carolina Supreme Court strictly construed the term “adjoins” to mean that the two rights-of-way
must be situated side by side. See id. at 125 (“We believe that the definition of ‘adjoin’ does not
include a tract which . . . is included within the bounds of another tract. To adjoin, a tract must
be ‘close to or in contact,’ ‘next to’ or ‘touching.’”). Here, South Post Road and the railroad
right-of-way are not situated side by side; rather, the two rights-of-way overlap. Thus, the
second sentence of section 1-44.2(a) does not apply, and the owner of the parcel associated with
claim 62 owns to the centerline of the railroad right-of-way.
With respect to claim 94, the associated deed indicates that the eastern boundary of the
parcel is the “West edge of Broad Street, also referred to as the e[d]ge of South Railroad[.]”
Plaintiffs aver that Broad Street is now known as Bettis Road at this location (in Earl, North
Carolina), and the WebGIS map submitted by defendant suggests that the eastern boundary of
the parcel associated with claim 94 is Bettis Road. In contrast, as noted above with respect to
claims 97 and 99, the relevant ICC valuation map suggests that the “Broad Street” mentioned in
the deed could be referring to either Bettis Road or Blacksburg Road. This lack of clarity
regarding the deed’s reference to Broad Street, however, is of no moment. If the reference to
Broad Street means Bettis Road, then the owner of the parcel would own to the centerline of the
railroad right-of-way because the road lies completely within the railroad right-of-way. And, if
the reference to Broad Street in the deed means Blacksburg Road, then the owner of the parcel
would own the entirety of the railroad right-of-way because the presumptions set forth in section
1-44.2(a) would be overcome by proof that the railroad right-of-way is completely within the
boundaries of the parcel.
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In sum, plaintiffs are entitled to summary judgment as to the threshold title issues as to
claims 62 and 94.
3. Defendant Is Entitled to Summary Judgment as to Claims 21 and 50
The third and fourth subcategories of claims in which defendant challenges plaintiffs’
assertion of a property interest in the land underlying the railroad right-of-way collectively
include only two claims:
Claim Property Owner Parcel Number
21 Stephen Thompson Gheen 2547104347
50 Gaye L. Willis 2545367307
With respect to claim 21, the relevant deed describes a 200-by-200-foot parcel bounded
by West Warren Street to the north and South Morgan Street to the east. The only map in the
record that depicts the location of this parcel is plaintiffs’ overview map, which indicates that the
railroad right-of-way is adjacent and parallel to South Morgan Street. However, the railroad
right-of-way is marked on the map in such a way that obscures how South Morgan Street and the
railroad right-of-way are situated with respect to each other. 42 Thus, the court is unable to
ascertain whether (1) the parcel at issue is immediately adjacent to the railroad right-of-way
(implicating the first sentence of section 1-44.2(a)), (2) South Morgan Street is an intervening
public road (implicating the second sentence of section 1-44.2(a)), or (3) South Morgan Street is
situated within the railroad right-of-way (implicating Nelson). In short, plaintiffs have not
satisfied their burden of establishing that the owner of the parcel associated with claim 21 has a
property interest in the railroad right-of-way. The court therefore grants defendant’s motion for
summary judgment as to this claim.
With respect to claim 50, the relevant deed lacks a metes-and-bounds description of the
parcel. Rather, the parcel is described as “Lot #2 Block ‘H’ of map 4 WinterPark Subdivision.”
Third Am. Compl. Ex. 266 at 736. The only map in the record depicting the location of this
parcel is plaintiffs’ overview map, which suggests that the parcel is adjacent to the railroad right-
of-way (with no intervening parcel or public road). However, there is no way for the court to
determine that the parcel described in the deed is the same parcel depicted on the map. In other
words, plaintiffs have not satisfied their burden of establishing that the parcel associated with
claim 50 is adjacent to the railroad right-of-way. The court therefore grants defendant’s motion
for summary judgment as to this claim.
42
A WebGIS map submitted by defendant depicting an area north of the parcel at issue
indicates that the railroad line is situated to the east of South Morgan Street, while a separate
WebGIS map submitted by defendant depicting the area south of the parcel at issue indicates that
the railroad line is situated to the west of South Morgan Street.
-30-
F. Summary Judgment Is Not Appropriate With Respect to the Seven Claims Not
Addressed in the Parties’ Motions
Finally, the parties do not address the following seven claims in their summary judgment
motions: 43
Claim Property Owner Parcel Number
17b James D. Ledbetter (b) 2547115134
19 Hil-Cri-Mor Hudson Rentals 2547114054
24 C.C. Dickson Co. 2546185419
51 Sheila P. and Les Ivie 2545451806
56a Tommy A. Swan and Anita P. Long on Behalf of (a) 2545726295
56b the Estate of Phyllis B. Patterson (b) 2545726295
56c (c) 2545726295
Accordingly, neither plaintiffs nor defendant is entitled to summary judgment on threshold title
issues with respect to these claims.
III. CONCLUSION
As set forth in more detail above, the court GRANTS summary judgment to plaintiffs on
the threshold title issues with respect to the following claims:
1, 11, 15a, 15b, 16 (in part), 25, 26, 28a, 28b, 29, 32a, 33a, 33b, 34a, 34b, 35a,
35b, 35c, 36, 38, 39, 40a, 40b, 42, 43a, 43b, 44, 45, 46a, 47, 48, 49a, 49b, 52, 53a,
53b, 54, 55, 62, 67, 69, 70, 72, 74, 75, 76, 77a, 77b, 78, 79, 80, 81, 84, 85, 86,
88a, 88b, 88c, 89c, 90, 92a, 92b, 92c, 94, 104, 106, 107, 108a, 108b, 108c, 111,
118, 120, 121, 122a, and 122b.
In addition, with respect to the following claims, the court DENIES summary judgment to both
plaintiffs and defendant on the issue of whether the associated parcels are immediately adjacent
to the railroad right-of-way (but, based on the parties’ stipulations, GRANTS summary
judgment to plaintiffs on the other three threshold title issues, namely, (1) the identified parcels
correspond with property that was originally conveyed to create the railroad right-of-way
described in the NITU; (2) the original conveyances were easements for railroad purposes; and
(3) the identified plaintiffs owned their parcels on August 4, 2015, the date the Board issued the
NITU):
43
The court notes that the parties stipulated that (1) for claims 56a, 56b, and 56c, the
associated parcels correspond with property that was originally conveyed to create the railroad
right-of-way described in the NITU; (2) for claims 51, 56a, 56b, and 56c, the original
conveyances were easements for railroad purposes; (3) for claims 17b, 19, 51, 56a, 56b, and 56c,
the associated parcels are immediately adjacent to the railroad right-of-way described in the
NITU; and (4) for claims 17b, 19, 24, and 51, the identified plaintiffs owned their parcels on
August 4, 2015, the date the Board issued the NITU.
-31-
2, 3, 13, 20a, 20b, 22, 23a, 23b, 27, 30a, 30b, 30c, 32b, 41, 58, 59, 60, 61a, 63, 64,
65, 66, 68, 71, 73 (the portion not affected by the intervening parcel), 87, 91, 93a,
93b, 95, 96, 97, 98a, 98b, 99, 100, 101a, 101b, 102a, 102b, 103, 105a, 105b, 109,
110, 112, 113, 114, 115, 116, and 117.
Next, the court GRANTS summary judgment to defendant with respect to the following claims:
16 (in part), 21, 50, 73 (the portion affected by the intervening parcel), 82, 83,
89a, 89b, 119a, and 119b.
The court therefore DISMISSES these claims WITH PREJUDICE. Finally, the court
DENIES summary judgment to both plaintiffs and defendant on all threshold title issues with
respect to the following claims left unaddressed in the parties’ summary judgment motions:
17b, 19, 24, 51, 56a, 56b, and 56c.
By no later than Friday, July 13, 2018, the parties shall file a joint status report suggesting
further proceedings.
IT IS SO ORDERED.
s/ Margaret M. Sweeney
MARGARET M. SWEENEY
Judge
-32- | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/4128670/ | ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 1,2006
The Honorable Norma Chavez Opinion No. GA-0425
Chair, Committee on Border
and International Affairs Re: Whether the state or its political
Texas House of Representatives subdivisions may regulate international border
Post Office Box 2910 crossings by persons under the age of 18 years,
Austin, Texas 78768-2910 or whether the state may regulate the conduct
of persons under the age of 18 years who are at
or near an international border (RQ-0407-GA)
Dear Representative Chavez:
You ask whether the state or its political subdivisions may regulate international border
crossings by persons under the age of 18 years, or whether the state may regulate the conduct of
persons under the age of 18 years who are at or near an international border.’
You inform us that you have been appointed to chair the Binational Alcohol and Substance
Abuse Task Force* (the “Task Force”), which is charged with “studying issues relating to binge
drinking along the Texas-Mexico border.“3 Request Letter, supra note 1, at 1. The Task Force, you
‘Letter from Honorable Norma Ch&z, Chair, House Committee on Border and International Affairs, to
Honorable Greg Abbott, Attorney General ofTexas (Oct. 25,2005) (on file with the Opinion Committee, also available
at http://~.oag.state.~.os) [hereinafter Request Letter].
*See TEX. HEALTH& SAFETYCODEANN. 5 12.072 (Vernon Supp. 2005) (creating the Task Force)
‘As a bill analysis for House Bill 3426, the legislation now codified as Health and Safety Code section 12.07i,
explains:
The problem of underage and binge drinking in Mexico is a unique issue for
communities along the southwest United States border. For many generations,
border cities in Mexico have been destinations for youth for the purpose oftourism
and evening entertainment. Differences in alcohol policies, the legal drinking age
(18 yeas of age in Mexico and 21 years of age in the United States), and the
standards and limitations of enforcement of United States and Mexico laws on
alcohol consumption and public intoxication have contributed to significant public
health and public safety problems on both sides of the international border.
SENATECOMM.ONINTERNATIONALRELATIONS
& TRADE,BILLANALYSIS,
Tex. H.B. 3426,79th Leg., R.S. (2005)
The Honorable Norma Chavez - Page 2 (GA-0425)
aver, may recommend restricting a minor’s movements at the Mexican border, a recommendation
that mirrors legislation previously considered by the Seventy-eighth Legislature. Id. at l-2; see also
Tex. H.B. 3544, 78th Leg., R.S. (2003).4 You express doubt, however, about the state’s or its
political subdivisions’ “legal authority to regulate the movement ofpeople between countries as this
issue is primarily within the federal government’s jurisdiction and freedom ofmovement is generally
considered to be a civil liberty.” Request Letter, supra note 1, at 2. Thus, you have contacted this
office for an opinion on this issue.
You provide us with the Task Force’s possible recommendation but not specific language
that will be incorporated into proposed, future legislation. Furthermore, we assume that whatever
the Task Force’s recommendation may be, it may vary substantially from House Bill 3544’s
language. Consequently, we can advise you only on broad principles of the law as it affects your
generally articulated goal-to reduce the problems along the Texas-Mexico border associated with
minors who engage in binge drinking.
Your letter asks about a law “regulatting] the movement of people between countries,” and
thus you frame your request both as a question of individual civil liberties and as a question of state
versus federal jurisdiction. Id, at 2. In answer to your question about state versus federal
jurisdiction, it is clear that a state law regulating international travel would intrude on federal
jurisdiction and therefore would be preempted.5 However, to the extent the Task Force is
considering a state law limited to restricting minors’ conduct within Texas, we can see nothing that
would limit the state from using its police powers6 to carve out a geographic area within Texas in
“House Bill 3544 would have authorized Texas peace offkers operating within Hidalgo and Cameron counties
to prevent a person younger than 18 years of age who was attempting to cross the border between this state and Mexico
from crossing unless the person was accompanied by a parent or guardian, or had written consent from the person’s
parent or guardian to cross the border, or held a current United States passport. See Tex. H.B. 3544, 78th Leg., R.S.
(2003). House Bill 3544 is similar to an existing California law, which reads in relevant part:
A peace officer ofany city shall prevent the entry from California into the Republic
of Mexico at the border by any resident of this state under the age of 18 years who
is unaccompanied by a parent or guardian or who does not have written consent for
such entry from a parent or guardian or who does not have a passport.
CAL..WELF.& INST.CODEANN. 5 1500 (West 1998).
‘See, e.g., Buttfield v. Stranahan, 192 U.S. 470, 492-93 (1904) (stating that the federal government has
“exclusive and absolute” power over foreign commerce); Zschernigv. M&Y, 389 U.S. 429,436 (1967) (stating that the
federal government has authority over foreign affairs and international relations); see a/so U.S. CONST.art. I, 5 8, cls.
3,1 l-12,16 (authorizing the federal government to regulate foreign commerce, to raise an army, and conduct war,); U.S.
CONST. art. II, 5 2, cl. 2 (authorizing the federal government to enter into treaties and send and receive ambassadors);
U.S. CONST.art. VI, cl. 2 (providing that federal law is the “supreme Law ofthe Land.“). See generally Michael Hahn,
Sub-national “Smctions” and the Federal Model, 32 Law & Pol’y Int’l Bus 197 (2000) (discussing the evolving
concepts of federal jurisdiction over foreign affairs and foreign commerce and how this jurisdiction affects states’rights
to regulate activities within their own borders).
‘It is axiomatic that the Texas public has granted authority over its health, safety, and welfare to the Texas
government, which operates exclusively in these arenas within its borders. See U.S. CONT. amend. X; cf LIS. v.
..)
The Honorable Norma Chavez - Page 3 (GA-0425)
which a minor’s conduct is restricted because of the dangerous condition’ the area presents to the
minor’s health and safety. A law as an exercise of state police power is no more an intrusion on the
federal government’s authority over foreign affairs and foreign commerce than a city police officer
stopping and issuing a speeding ticket to a person intending or about to cross the Texas border who
has exceededaposted limit. Cf: Clurkv. Allen, 331 U.S. 503,517 (1947) (astate law is not invalid
though it may have an incidental or indirect effect in foreign countries). In short, the state may
regulate minors’ conduct at the border, but it may not regulate international border crossings.
Because we have concluded that it is permissible for the Task Force to recommend regulating
minors’ conduct at the border, we must also address your question concerning a minor’s freedom of
movement and whether a state restricting a~minor’s freedom of movement is impermissibly
abridging that minor’s civil liberties-a question to which we now turn.
We believe that the Task Force’s potential recommendation to restrict a minor’s conduct
within Texas so that the minor is prohibited from purposelessly being near a border crossing is
analogous to laws that have imposed curfews on minors during nighttime hours.’ These curfew laws
have been challenged principally on the basis that they impermissibly restrict a minor’s right to
freedom ofmovement. See, e.g., Bykofsky Y. Borough ofMiddletown, 401 F. Supp. 1242,1254-58
(M.D. Penn. 1975), uff’d mem., 535 F.2d 1245 (3d Cir.), cert. denied, 429 U.S. 964 (1976)
(discussing a minor’s right to freedom of movement as the right is restricted by a curfew ordinance);
Qutb V. Strauss, 11 F.3d 488,492 (5th Cir. 1993) (discussing right to freedom of movement as the
right is restricted by a curfew ordinance).
“The rights of locomotion, freedom of movement, to go where one pleases, and to use the
public streets in a way that does not interfere with the personal liberty of others are basic values
‘implicit in the concept of ordered liberty’ protected by the due process clause of the fourteenth
amendment.” Bykofsky, 401 F. Supp. at 1254 (citations omitted). Although minors are persons
under the United States Constitution “possessed of fundamental rights which the State must respect,”
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969), a state has an elevated
interest in protecting minors. See Qutb, 11 F.3d at 492; Bellotti v. Baird, 443 U.S. 622,634 (1979)
(listing three reasons that permit a court to treat minors’ rights differently from adults’ rights: (1)
to account for a minor’s peculiar vulnerability; (2) to insure against a minor’s inability to make
Morrison, 529 U.S. 598, 618 (2000) (reaftirming the intent in the United States Constitution to preserve the police
powers in the states); Ortiz v. U.S. Border Parrol, 39 F. Supp. 2d 1321, 1326 (D.N.M. 1999) (determining that Border
Patrol agents are not general law enforcement officers).
‘see SENATECOMM.ONINTERNATIONALRELATIONS&TRADE,BILLANALYSIS, Tex. H.B. 3426,79thLeg.,R.S.
(2005), supranote 3 (asserting that alcohol consumption and public intoxication pose significant public health andsafety
problems in Texasat the border).
‘We note that the El Paso City Council recently amended its curfew ordinance in order to restrict minors’ actions
at the border for the purpose of reducing problems associated with minors’ easy access to alcohol. See David Crowder,
Areas aim to stopteens‘partyinginJuarez, El Paso Times, Mar. 15,2006, available al h~p:llwww.elpasotimes.com
/apps/pbcs.dll/article?AID=/2OO6O315/NEWS/603150327/1001/ARCHIVES.
The Honorable Norma Chavez - Page 4 (GA-0425)
critical decisions in an informed, mature manner; and (3) to afford parents the ability to rear their
children as they please). Thus, “[t]he state’s authority over children’s activities is broader than over
like actions of adults” and merely because a state could not wholly prohibit certain adult activities
“does not mean it cannot do so for children.” Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
State and federal courts would likely apply a strict scrutiny standard of review to a law that
infringes on a minor’s right to freedom of movement. See Qutb, 11 F.3d at 492 (assuming that
freedom of movement is a fundamental right and subjecting a Dallas ordinance restricting minors’
right to freedom ofmovement to strict scrutiny for infringing on that right).’ In determining whether
a law passes constitutional muster under a strict scrutiny standard, a court will ask whether the law
“promotes acompelling govermnentalinterest and, if so, whether the [law] is narrowly tailored such
that there are no less restrictive means to effectuate the desired end.” Id. “To be narrowly tailored,
there must be a nexus between the stated government interest and the classification created by the
[law].” Id. at 493. “This test ‘ensures that the means chosen ‘fit’ this compelling goal so closely that
there is little or no possibility that the motive for classification was illegitimate. .“’ Id. (citation
omitted).
Applying these standards in Qufb, the Fifth Circuit upheld a Dallas curfew ordinance that,
among other things, made it an offense for a person under the age of seventeen to move about the
city during certain nighttime hours unless the minor could prove one of seven defenses. See id. at
49698. There the court found that the state had a compelling interest in increasing juvenile safety
and decreasing juvenile crime and that imposing a curfew on minors served the state’s compelling
interest, even though “the city was unable to provide precise data concerning the number ofjuveniles
who commit crimes during the curfew hours, or the number ofjuvenile victims of crimes committed
during the curfew.” Id. at 493. Moreover, the court held that the ordinance employed “the least
restrictive means of accomplishing its goals,” demonstrated by the ordinance’s various defenses that
“allow affected minors to remain in public areas during curfew hours,” defenses that included
traveling to or attending an official civic organization function, being engaged in an employment
activity, or going to or returning home from an employment activity. Id. at 494.
By contrast, another curfew law affecting minors’ rights has not passed constitutional muster
because of its overbreadth. See Johnson v. City of Opelousus, 658 F.2d 1065 (5th Cir. 1981).
Indeed, the Fifth Circuit struck down as overbroad a City of Opelousas, Louisiana curfew ordinance
that prohibited “unemancipated minors generally from being on public streets between certain hours
without their parents, with exception for minors on ‘emergency errands.“’ See id. at 1072. There
the court noted that:
[Ulnder this curfew ordinance minors are prohibited from attending
associational activities such as religious or school meetings,
‘But see Bykofiky, 401 F. Supp. at 1265 (applying rational basis analysis to a law affecting minors’ freedom
ofmovement because age is not a suspect class and, for minors, freedom ofmovement is not a fundamental right); Rams
Y.Town ofVernon, 353 F.3d 17 1, 175 (2d Cir. 2003) (applying intermediate scrutiny to a law affecting minors’ freedom
ofmovement because although freedom ofmovement is a fundamental right, strict scrutiny analysis cannot appropriately
account for the special needs of minors).
The Honorable Norma Chavez - Page 5 (GA-0425)
organized dances, and theater and sporting events, when reasonable
and direct travel to or from these activities has to be made during the
curfew period. The same inhibition prohibits parents horn urging and
consenting to such protected associational activity by their minor
children. The curfew ordinance also prohibits a minor during the
curfew period from, for example, being on the sidewalk in front of his
house, engaging in legitimate employment, or traveling through [the
city] even on an interstate trip. These implicit prohibitions of the
curfew ordinance overtly and manifestly infringe upon the
constitutional rights of minors in [the city].
Id. The lack of exceptions in the Louisiana curfew ordinance precluded a narrowing construction,
and the court was “compelled” to rule that the ordinance was overbroad. Id. at 1074. “To be sure,
the defenses are the most important consideration in determining whether [a law] is narrowly
tailored.” Qutb, 11 F.3d at 493-94.”
In sum, we take from these cases that laws restricting a minor’s conduct within Texas, as the
Task Force may propose, can be designed to survive a constitutional challenge. Curfew ordinances
have permissibly restricted minors’ right to freedom of movement. Any such restriction on aminor’s
rights must be created to further a compelling state interest and it must be narrowly tailored to
achieve that end because a Texas court following Fifth Circuit precedent will likely apply strict
scrutiny analysis. A state’s interest is automatically elevated, however, by the affected person’s
status as a minor. Finally, special attention should be paid to providing defenses to minors who are
within the restricted area for protected purposes.
%deed, failure to include defenses that allow for a minor to exercise his First Amendment rights is another
basis for challenging the constitutionality of the law the Task Force may recommend. See Bykojiky, 40 1 F. Supp. at 1258
(noting that an exception in a curfew law that allowed for the bona fide exercise of First Amendment rights for political,
religious, or communicative purposes was sufficient).
The Honorable Norma ChSlvez - Page 6 (GA-0425)
SUMMARY
The state or its political subdivisions may not regulate
international border crossings by persons under the age of 18 years.
The state and its political subdivisions, however, may restrict persons
under the age of 18 years from being in Texas areas near the Texas-
Mexico border by creating a narrowly tailored law that furthers a
compelling governmental interest.
eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4289059/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 47 MAL 2018
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
SHAWN MAURICE LOPER, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 27th day of June, 2018, the Petition for Allowance of Appeal is
DENIED. | 01-03-2023 | 06-27-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1244821/ | 203 Mich. App. 43 (1993)
512 N.W.2d 44
NOECKER
v.
DEPARTMENT OF CORRECTIONS
Docket No. 127059.
Michigan Court of Appeals.
Submitted October 19, 1993, at Lansing.
Decided December 20, 1993, at 9:15 A.M.
Marks, Svendsen & Bird, P.C. (by William P. Marks), for the plaintiff.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and A. Peter Govorchin, Assistant Attorney General, for the defendant.
Before: MICHAEL J. KELLY, P.J., and SHEPHERD and MURPHY, JJ.
PER CURIAM.
Defendant appeals from the judgment of the circuit court entered pursuant to a jury verdict finding that defendant discriminated against plaintiff, its former employee, on the basis of her marital status. We reverse.
Plaintiff is a registered nurse. In the summer of 1985, plaintiff interviewed for a position at the Lakewood Correctional Facility in Coldwater, which was scheduled to open that fall. Plaintiff specified that she was only interested in working the day shift because, as a wife and mother, she wanted to provide transportation for her children from school and to care for her children after school. Douglas Wills, defendant's employee conducting the hiring for the facility, indicated that plaintiff would be hired as an RN II and would work the day shift.
Shortly thereafter plaintiff resigned her prior job and began her position with defendant; however, she was told that she was classified as an RN I at a decreased salary, that she would not be working the day shift, and that she would be working at the women's prison and would not be transferring to the Lakewood Correctional Facility. *45 Plaintiff repeatedly complained to her supervisors about the unfulfilled employment promises. As a result of her complaints, defendant began a series of tactics designed to force plaintiff to resign. One tactic defendant used was to assign plaintiff to the night shift, knowing that she wanted to work the day shift because of her family obligations. Defendant had apparently successfully used this tactic to force the resignation of other employees who had complained about the terms of their employment.
After plaintiff endured defendant's efforts to make her work life unpleasant for several months, plaintiff's employment was terminated. Plaintiff filed this action against defendant, alleging in part that defendant had discriminated against her in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Plaintiff contended that defendant had discriminated against her on the basis of her marital status by assigning her to the night shift, which defendant knew she did not wish to work because of her family obligations. The jury concluded that the defendant had discriminated against plaintiff on the basis of her marital status and awarded plaintiff $37,715.60. The circuit court denied defendant's motion for judgment notwithstanding the verdict. In a related action, the Court of Claims held in favor of plaintiff on her wrongful discharge claim against defendant, awarding her $21,380.
Defendant contends that it is entitled to judgment notwithstanding the verdict because defendant's conduct can not be considered discrimination based on marital status under the Civil Rights Act. While we find defendant's conduct reprehensible, we agree that defendant did not discriminate against defendant on the basis of her marital status.
*46 During the period relevant to this suit, § 202 of the Civil Rights Act, MCL 37.2202; MSA 3.548(202), provided in part:
(1) An employer shall not:
(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way which deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
The purpose of the act is to prevent discrimination directed against a person because of that person's membership in a certain class and to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Radtke v Everett, 442 Mich. 368, 379; 501 NW2d 155 (1993); Miller v C A Muer Corp, 420 Mich. 355, 362-363; 362 NW2d 650 (1984). Although the act does not define marital status, our Supreme Court has determined that the Legislature's intent in including marital status as a protected class was to prohibit discrimination based upon whether one is married. Id., 363. Discrimination based upon marital status does not include consideration of the identity, occupation, or place of employment of one's spouse. Id.; see also Whirlpool Corp v Civil Rights Comm, 425 Mich. 527, 530-531; 390 NW2d 625 (1986). In Miller and Whirlpool, our Supreme Court upheld the validity of the employers' antinepotism policies, determining that considering to *47 whom one is married is not discrimination based upon marital status. In a somewhat similar case, this Court in Bryant v Automatic Data Processing, Inc, 151 Mich. App. 424; 390 NW2d 732 (1986), considered the plaintiff's claim that she was discriminated against because of her husband's race to be a claim for racial discrimination and not a claim of discrimination based on marital status.
In this case, plaintiff contends that because defendant wanted her to resign, it assigned her to work the night shift, which it knew she was opposed to working. Defendant further knew that the reason plaintiff was opposed to working the night shift was her desire to be home with her family in the evening, particularly when her children arrived home from school. However, plaintiff has not demonstrated, or even alleged, that defendant's efforts to force her to resign, however underhanded, were based upon whether she was married. Rather, defendant wanted plaintiff to resign because she had complained about her employment terms and chose to force plaintiff's resignation by making her work schedule difficult. Therefore, defendant assigned plaintiff to work nights, knowing that she wanted to work days. It is irrelevant that the reason plaintiff desired to be home in the evenings was to be with her husband and children.
Stated another way, an employer's failure to tailor an employee's work schedule to accommodate the employee's family or marital obligations is not, in and of itself, discrimination based on marital status. For example, parents, whether married or unmarried, may wish to have evenings free to care for children. Unmarried people may wish to have evenings or weekends free for dating. If an employer assigns an unmarried employee to work weekends, knowing that the employee preferred *48 to have weekends free to date, the employer has not necessarily discriminated against the employee on the basis of marital status. In this case, it is apparent that defendant's motive was to assign plaintiff to whatever schedule was most inconvenient, regardless of the reasons behind plaintiff's schedule preference and regardless of her marital status. Because defendant's actions do not relate to whether plaintiff was married, plaintiff did not establish discrimination based upon marital status under the act.
Reversed. | 01-03-2023 | 10-30-2013 |