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https://www.courtlistener.com/api/rest/v3/opinions/4129591/ | OFFICE OF THE ATTORNEV GENERAL. STATE OF TEXAS
JOHN CORNYN
August lo,1999
The Honorable David Counts Opinion No. JC-0090
Chair, Committee on Natural Resources
Texas House of Representatives Re: Validity of rule relating to location of water
P.O. Box 2910 wells (RQ-0017)
Austin, Texas 78768-2910
Dear Representative Counts:
You asked whether the Texas Natural Resource Conservation Commission had the authority
to adopt a certain rule relating to the location of new water wells. The rule required water wells to
be located a minimum horizontal distance from a property line. See 21 Tex. Reg. 11844 (1996)
(formerly codified at 30 TEX. ADMIN. CODE 5 238.43(c), repealed 24 Tex. Reg. 581 (1999)). You
questioned whether the TNRCC could impose a rule requiring a well to be located a minimum
distance from a property line because, you tell us, property lines “have no relation to protecting
groundwater from contamination.” Letter from Representative David Counts to Honorable
Dan Morales (Mar. 7, 1997) (on tile with Opinion Committee).
In 1997, the Texas Legislature transferred the authority to regulate water well drillers and
water well pump installers from the Commission to the Texas Department of Licensing and
Regulation. See Act of May 28, 1997,75th Leg., RX, ch. 1077, 1997 Tex. Gen. Laws 4155. The
TNRCC rule was repealed, see 24 Tex. Reg. 581 (1999), and a new rule regulating the spacing of
water wells was adopted by the Department, see 23 Tex. Reg. 13059 (1998). The new Department
rule provides in relevant part: “A well shall be located a minimum horizontal distance of 100 ft.
from an existing or proposed septic system absorption field, septic systems spray area, a dry litter
poultry facility and 50 feet from any property line provided the well is located at the minimum
horizontal distance from the sources ofpotential contamination.” 23 Tex. Reg. 13067 (1998) (to be
codified at 16 TEX. ADMIN. CODE 5 76.1000(b)(2) (Tex. Dep’t of Licensing and Regulation)).
Among other exceptions, the property line distance requirement does not apply when groundwater
district rules are in place regulating the spacing. Id. (to be codified at 16 TEX. ADMIN. CODE
§ 76,1000(b)(4)(A)). We assume that you have the same concerns about the Department rule that
you had about the TNRCC rule, so we consider whether the Department has the authority to adopt
the rule.
“[A]n agency can adopt only such rules as are authorized by and consistent with its statutory
authority.” Railroad Comm ‘n v. Arco Oil & Gas, 876 S.W.2d 473,481 (Tex. App.-Austin 1994,
writ denied). The critical factor in determining whether an administrative agency has exceeded its
rule-making authority is whether the rule’s provisions are in harmony with the general objectives
The Honorable David Counts - Page 2 (JC-0090)
of the statute involved. Edgewood Indep. Sch. Dist. v. Meno, 893 S.W.2d 450,484 (Tex. 1995);
Railroad Comm ‘n Y. Lone Star Gas Co., 884 S.W.2d 679,685 (Tex. 1992). A court will uphold an
agency rule if it is reasonable. See Bullock v. Hewlett-Packard Co., 628 S.W.2d 754, 756 (Tex.
1982). “The rules need not be, in the court’s opinion, wise, desirable, or even necessary.” Id. They
need only be based on some legitimate position advanced by the agency. Id. When statutory
authority exists to adopt the rule, courts will presume that facts exist which justify the rule’s
promulgation. Id.
The Texas Constitution provides that it is the duty of the state to conserve and develop the
state’s natural resources. TEX. CONST. art. XVI, 5 59(a). The Texas Water Code provides: “It is the
public policy of the state to provide for the conservation and development of the state’s natural
resources _” TEX. WATER CODE ANN. 5 1.003 (Vernon 1988). Chapters 32 and 33 of the Water
Code further this policy by providing for the protection of underground fresh water resources
through the regulation of water well drillers and pump installers, who must be licensed by the
Department and comply with Department rules. See id. §§ 32.002,33.002 (Vernon Supp. 1999); see
also Williams v. State, 514 S.W.2d 772, 776 (Tex. Civ. App.-Beaumont 1974, writ refd n.r.e.)
(discussing the purpose of Water Well Drillers Act, predecessor to chapter 32 of the Water Code).
With respect to water well drillers, “[tlhe department, with advice and comment from the
Texas Natural Resource Conservation Commission, shall adopt rules as necessary to enforce this
chapter, including rules governing applications for a license, qualifications of applicants, standards
of conduct for licensed drillers including marking of well drilling rigs and equipment, and rules
governing procedure and practice before the department.” TEX. WATER CODE ANN. 5 32.009
(Vernon 1999). The Department’s authority includes the adoption of standards and procedures for
the completing of wells by licensed drillers. Id. 5 32.017. Pump installers are also subject to
Department standards and procedures for completing wells. Id. 5 33.014. “The department shall
adopt rules as necessary to enforce” chapter 33. Id. 5 33.007. In our view, a Department rule
regarding the placement of new water wells is within the scope of the Department’s authority to
adopt standards and procedures for the completion of water wells by water well drillers and pump
installers in accordance with the Department’s charge to protect the state’s groundwater resources.
You question, however, whether requiring a well to be placed a minimum distance from a
property line is a legitimate way to protect groundwater from contamination. While it is not for this
office to determine which well-placement criteria best protect the state’s groundwater, we see a
reasonable justification for the requirement that a well be placed a minimum distance from a
property line. A landowner may be completely unaware of sources ofcontamination that lie beyond
the landowner’s property lines. The landowner may unwittingly place a well near a property line
without sufficient protection, thereby creating a conduit for contamination of groundwater. The
property-line spacing rule helps landowners avoid such contamination. See Letter from Geoffrey
S. Conner, General Counsel, Texas Natural Resource Conservation Commission, to Honorable Dan
Morales, Texas Attorney General (Apr. 17, 1997) (on file with Opinion Committee).
The Honorable David Counts - Page 3 (JC-0090)
We believe that the rule advances the purposes of the Water Code and is in harmony with
its objectives. Accordingly, we conclude that the rule requiring water wells to be located a minimum
distance from a property line is within the scope of the Department’s rule-making authority.
SUMMARY
A Texas Department of Licensing and Regulation rule
requiring a water well to be located a minimum distance from a
property line is within the scope of the Department’s rule-making
authority.
Y s ve truly
4~i
c---
JOkN
c
CO>NYN
c,;l-r
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Barbara Griffin
Assistant Attorney General - Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129575/ | September 1, 1999
The Honorable David Dewhurst Opinion No. JC-0106
Commissioner
Texas General Land Office Re: Whether the movement of a structure Tom
1700 North Congress Avenue one location to another location on the piece of
Austin, Texas 78701-1495 property constitutes a “specific improvement or
repair” to the property for purposes of a tax
abatement agreement under the Property
Redevelopment and Tax Abatement Act, chapter
312 of the Tax Code (RQ-0038)
Dear Commissioner Dewhurst:
The Property Redevelopment and Tax Abatement Act, chapter 312 ofthe Tax Code, allows
a local taxing unit to enter into a tax abatement agreement with an owner of property located in a
reinvestment zone on the condition that the property owner “make specific improvements or repairs
to the property.” TEX. TAX CODE ANN. 5 312.204(a) (Vernon 1992). You ask whether the
movement of a structure from one location on a piece ofproperty to another location on the property
constitutes a “specific improvement or repair” to the property for purposes of the Act.
You tell us that local taxing units wish to offer incentives for property owners to remove
structures from public beaches. The Open Beaches Act declares it to be the policy of the state that
the public have “free and unrestricted right of ingress and egress” to and from public beaches. TEX.
NAT. REs. CODEANN. 5 61.01 l(a) (Vernon Supp. 1999). “It is an offense against the public policy
of this state for any person to create, erect, or construct any obstruction, barrier, or restraint that will
interfere with the free and unrestricted right of the public . to enter or to leave any public beach
or to use any public beach . .” Id. 5 61.013(a). The Attorney General or any county attorney,
district attorney, or criminal district attorney may tile suit to remove any barrier to the public’s right
to access and use a public beach. Id. 5 61.018.
Generally, the area constituting a public beach extends from the line of mean low tide to the
line of vegetation bordering the Gulf of Mexico. Id. § 61.001(S). You explain that some structures
have come to lie on public beaches because of erosion of the shoreline: “The shoreline of the Gulf
ofMexico in many coastal communities has been moving landward, and some homes that were once
landward of the public beach are now on it.” Letter from Honorable David Dewhurst, Land
Commissioner, to Honorable John Comyn, Attorney General (Mar. 8, 1999) (on file with Opinion
Committee) [hereinafter “Request Letter”]; see also Feinman v. State, 717 S.W.2d 106, 111 (Tex.
The Honorable David Dewhurst - Page 2 (JC-0106)
App.-Houston [ 1st Dist.] 1986, writ ref d n.r.e.) (holding that Open Beaches Act easement to public
beach is a rolling easement that moves if the vegetation line moves). These structures, you say,
interfere with the public’s access to the beaches, You recognize that the property owners may be
compelled under the Open Beaches Act to remove the structures. But, you tell us, local governments
would rather offer the property owners a tax incentive to move the structures voluntarily.
The Property Redevelopment and Tax Abatement Act, chapter 3 12 of the Tax Code, allows
a local taxing unit to enter into a tax abatement agreement with the owner of taxable real property
located in areinvestment zone. TEX.TAXCODEANN.$5 3 12.204, ,206, ,402 (Vernon 1992 & Supp.
1999). The property must be located in a reinvestment zone that has been properly designated as
such by the local government. See id. $5 3 12.201 (city designation ofreinvestment zone); 3 12.2011
(enterprise zone is reinvestment zone); 3 12.202 (criteria for reinvestment zone); 312.401 (county
designation of reinvestment zone).
The criteria for designating a county reinvestment zone require a finding that the designation
would enhance the economic development of the county, and not merely benefit the property owner:
“The commissioners court may not designate an area as a reinvestment zone until it holds a public
hearing on the designation and finds that the designation would contribute to the retention or
expansion of primary employment or would attract major investment in the zone that would be a
benefit to the property to be included in the zone andwould contribute to the economic development
of the county.” TEX.TAXCODEANN. 5 312.401(b) (Vernon 1992) (emphasis added).
The criteria for designating a municipal reinvestment zone similarly encompass the goal of
economic development and other benefits for the municipality:
(a) To be designated as a reinvestment zone under this sub-
chapter, an area must:
(1) substantially arrest or impair the sound growth of the
municipality creating the zone, retard the provision of housing
accommodations, or constitute an economic or social liability and be
a menace to the public health, safety, morals, or welfare in its present
condition and use because of the presence oE
(A) a substantial number of substandard, slum,
deteriorated, or deteriorating structures;
(B) the predominance of defective or inadequate
sidewalks or streets;
(C) faulty size, adequacy, accessibility, or usefulness of
lots;
The Honorable David Dewhurst - Page 3 (K-0106)
(D) unsanitary or unsafe conditions;
(E) the deterioration of site or other improvements;
(F) tax or special assessment delinquency exceeding the
fair value of the land;
(G) defective or unusual conditions of title;
(H) conditions that endanger life or property by fire or
other cause; or
(1) any combination of these factors;
.
(5) encompass signs, billboards, or other outdoor advertising
structures designated by the governing body of the municipality for
relocation, reconstruction, or removal for the purpose of enhancing
the physical environment of the municipality, which the legislature
declares to be a public purpose; or
(6) be reasonably likely as a result of the designation to
contribute to the retention or expansion ofprimary employment or to
attract major investment in the zone that would be a benefit to the
property and that would contribute to the economic development of
the municipality.
Id. $3 12.202(a). “The governing body [of a municipality] may not adopt an ordinance designating
an area as a reinvestment zone until the governing body has held a public hearing on the designation
and has found that the improvements sought are feasible and practical and would be a benefit to the
land to be included in the zone and to the municipality after the expiration of [a tax abatement
agreement].” Id. 5 312.201(d) (Vernon Supp. 1999).
For property that is within a reinvestment zone, a tax abatement agreement must be made “on
the condition that the owner of the property make specific improvements or repairs to the property.”
Id. § 312.204 (Vernon 1992). You ask whether the movement of a structure from one location on
a piece of property to another location on the property constitutes a “specific improvement or repair”
to the property for purposes of the Act. We do not know whether the property about which you ask
is within a reinvestment zone or whether it would qualify for inclusion in a reinvestment zone.
Moreover, whether a particular improvement or repair is consistent with chapter 312 involves
questions of fact that cannot be resolved in an attorney general opinion. Thus, we do not determine
whether a tax abatement agreement is possible for the property you describe. Instead, we address
The Honorable David Dewhurst - Page 4 (JC-0106)
your question only as a matter of statutory construction: whether moving a structure f?om one
location to another is an “improvement” or “repair” within the meaning of section 3 12.204 of the
Tax Code.
Chapter 312 does not define “improvement” or “repair.” Thus, we begin by looking at the
ordinary definitions of the terms. See TEX. GOV’T CODEANN. 5 311.01 l(a) (Vernon 1998). An
“improvement” in the most general sense is “[t]he turning of a thing to profit or good account;
profitable management or use; making the most of a thing for one’s own profit; realization of the
profits of anything.” VII THEOXFORDENGLISHDICTIONARY750 (2d ed. 1989). When used more
specifically in reference to real property, the term also includes buildings and other permanent
structures attached to land:
Improvement. A valuable addition made to property (usually real
estate) or an amelioration in its condition, amounting to more than
mere repairs or replacement, costing labor or capital, and intended to
enhance its value, beauty or utility or to adapt it for new or further
purposes. Generally has reference to buildings, but may also include
any permanent structure or other development, such as a street,
sidewalks, sewers, utilities, etc. An expenditure to extend the useful
life of an asset or to improve its performance over that of the original
asset.
BLACK’SLAW DICTIONARY
757 (6th ed. 1990); see also VII THEOXFORDENGLISHDICTIONARY
75 1
(2d ed. 1989) (“A piece of land improved or rendered more profitable by inclosure, cultivation, the
erection of buildings, etc. . [T]he buildings, fences, etc., themselves.“).
As the term “improvement” is understood in the general sense, almost any endeavor that
makes the property or the structures on it better than they were would constitute an improvement.
Moving a structure from one location on a piece of property to another location on the property
might constitute an improvement to the property overall, or to the specific structure itself, by
enhancing its value, extending its useful life, or otherwise making its condition better. A structure
placed on a formerly vacant part of the property certainly is an improvement, in the more narrow
sense, to that part of the property. Whether the relocation of a structure constitutes an improvement
to property must be determined, however, on the facts of the particular case.
A “repair” is “[t]he act of restoring to a sound or unimpaired condition” or the “[rlestoration
of some material thing or structure by the renewal of decayed or worn out parts, by refixing what has
become loose or detached.” XIII THEOXFORDENGLISHDIC~ONARY627 (2d ed. 1989). “The word
‘repair’ contemplates an existing structure or thing which has become imperfect, and means to
supply in the original existing structure that which is lost or destroyed, and thereby restore it to the
condition in which it originally existed, or as nearas may be.” BLACK’SLAW DICTIONARY1298 (6th
ed. 1990).
The Honorable David Dewhurst - Page 5 (JC-0106)
You tell us that the tax abatements would require the property owners to move structures, not
necessarily fix or restore them. While the act of moving the structures would not constitute a
“repair” in the ordinary sense, the agreement to move the structures might encompass fixing or
restoring them to a good condition once they are in their new location. Thus, an agreement to
remove a structure and relocate it on the property might, depending again upon the facts, constitute
a repair to property in the ordinary sense.
But we must also consider what constitutes an improvement or repair in the context of
chapter 312. See TEX. C&VT CODE ANN. 5 311.01 l(a) (Vernon 1998). Chapter 312 was enacted
in anticipation of an amendment to the Texas Constitution, ratified by voters in 1981, which permits
the legislature by general law to authorize local taxing units “to grant exemptions or other relief from
ad valorem taxes on property located in a reinvestment zone forthe purpose of encouraging
development or redevelopment and improvement of the property.” TEX. CONST. art. VIII, ?j l-g
(emphasis added). Pursuant to this constitutional authority, chapter 3 12 authorizes local taxing units
to enter into tax abatement agreements with owners of property located in reinvestment zones.
Chapter 3 12 requires taxing units to adopt guidelines and criteria for tax agreements before
entering into any such agreement. TEX. TAX CODEANN. $5 312.002(a), .401(a) (Vernon 1992 &
Supp. 1999). The substance of the criteria governing tax abatement agreements is a matter within
the discretion of the local entity making the agreement. Tex. Att’y Gen. Op. No. DM-456 (1997)
at 6. Chapter 3 12 imposes two limitations on the commissioners court discretion. First, the property
owner must agree to make specific improvements and repairs to the property. Second,
“improvements that form the basis of a tax abatement agreement must be consistent with the purpose
of the reinvestment zone designation.” Id.
Accordingly, not only must the subject of a tax abatement agreement be an improvement or
repair in the ordinary sense, it must also serve the economic development purposes of the
reinvestment zone, and benefit the public as well as the property owner. You believe that moving
a structure from a public beach to another location on the same property would constitute an
improvement for the purposes of chapter 3 12 because it would:
1) reduce the possibility that the structure would be damaged or lost
in a storm; 2) preserve the property as property tax base (which would
be lost if destroyed or condemned); 3) make the entire property more
marketable; and 4) improve the public’s access to and use of the
public beach.
Request Letter, supra, at 2.
We find nothing in chapter 3 12 that would preclude, as a matter of law, a local government
from granting a tax abatement to a property owner in return for the owner’s agreement to move a
structure from a public beach to another part of the owner’s property. However, whether any
particular endeavor would actually improve or repair property in the ordinary sense is a
The Honorable David Dewhurst - Page 6 (X-0106)
determination that must be made on the facts of that endeavor. Likewise, whether the improvement
or repair is consistent with the purpose of the reinvestment zone designation, a designation that must
benefit the public as well as the property owner, depends upon the particular facts at issue.
Consequently, we do not determine whether a tax abatement agreement is possible for any specific
property. Such determinations are for local governmental bodies to make in the good faith exercise
of their discretion.
SUMMARY
The movement of a structure from one location on a piece of
property in a reinvestment zone to another location on the property
may constitute a “specific improvement or repair” to the property for
purposes of a tax abatement agreement under Property
Redevelopment and Tax Abatement Act, chapter 312 of the Tax
Code, if it improves or repairs the property in the ordinary sense and
if the improvement or repair is consistent with the purpose of the
reinvestment zone designation.
Yo sverytrul ,
4 i
JO&N
CT&
CORNYN
T
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Barbara Griffin
Assistant Attorney General - Opinion Committee | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143783/ | ,,- ,?
TI3E.A ORNEY GENERAL
OF TEXAS
Honorable George K Cox
State Health Offlarr
Aurtln, Texan
Dear Elrl Opinion No, O-2697
Ret In~uranarof tm mobile
laborrtorlrr.
We ham your lrtter of Aupmt 6, 1940, In vhiah you rrqurat
opinion of thil Deprrtmrnt aa to whethrr there im any my in whibh
your Dapwtment may inruro trmPmobilr laboratorlea, and thr aontrntr
thereof, an drraribd by you.
pa Opinion No. O-201, addrrnmrd to you on February 14, 1969,
with refrrenar to thr authorityof thr @tat. Health I)rpartmont to In-
oura agrIn& fire, State propwty in the rrrprati~rofflaerof the
Deparbnent,you were adviaad that in the light of Senate Conaurrrnt
ResolutionNo. 3, pannedIn the Ssoond CalledSeraionof the 37th
Legislature,"Your diatriotdlreotorehave no authorltyto pay in-
Buranoeprsmiuraafrm your looal oontingentfunds."
This Departmenthas written severalother opinionson the
questionof thepurohase of insuranceby Stats Departments. These are:
No. O-1762,No, O-164, No, o-2130,and No. o-1100, copiesof whioh are
attaohsdheretofor your perusal,and whioh we believeoover all phases
of your problem.
In view of the opinionexpressedto you in OpinionNo. O-201,
and sinoe it may be assmed that there is no substantialdifferenoein
the applicationof the rule betweendepartmentalpropertylooatedin
districtofficesand that locatedin mobile laboratories,vs deem it
unneoessaryto reviewherein excerptsfrom these former opinions.
In accordancewith past opinionsof this De~rtment, you are
respectfullyadvisedthat it is our opinionthat the Stats Department
of Healthmay not insursthese mobile laboratories.
Very truly yours
ATTORNEYGEUERALOF TEXAS
APPROVEDAUG 9, 1940
/s/ Grover Sellers By /s/Walter R. Koch
FIRSTASSISTANT
ATTORNEXGESEFIAL l%lter R. Koch
WRK:AW1egW Approved Assistmt
OpinionCommittee
By B W B Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143798/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
;rrrrr,c. “IPa
,n-o.*s.
QCIWBAL
Hon. Rxnost Coke?, mge 8
Article 9101, R%iia%4 divfl Statutes~ protl&
ing for noratnetio~o by politiaal parttcln, r8aL in pati _
as followsr | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129665/ | OFFiCE OF THE ATTonNe” GENERAL ST‘¶TE OF TFXIIS
JOHN CORNYN
March 8,1999
The Honorable Robert A. Klaeger Opinion No. JC-0016
Burnet County Attorney
220 South Pierce Re: Enforcement of traffic laws on privately
Bumet, Texas 78611-3136 owned streets (RQ- 1199)
Dear Mr. Klaeger:
You inquire whether state and municipal traffic laws may be enforced on privately-owned
streets. We conclude that such laws apply only on public streets and may not be enforced on
privately-owned streets.
You inform us that the City of Meadowlakes (“the City”) in Burnet County is a Type A
general-law municipality with an estimated population of eleven hundred residents. The
Meadowlakes Property Owners Association (“MPOA”), a private association, owns all ofthe streets
located within the city limits of the City ofMeadowlakes. None ofthese streets have been dedicated
to the City for use by the general public. The MPOA also maintains a privately-owned gate house
at the only point of entrance to or exit from the City to regulate access on the private streets. You
ask whether the City has authority to enforce state and municipal traffic regulations on the privately-
owned streets.
We do not address other legal issues that may arise with the private ownership of all streets
within the boundaries of an incorporated city, except to note that the governing body of an
incorporated municipality in this state has numerous duties and responsibilities under the
constitution and statutes, including the responsibility to provide non-residents with access to the
public meetings and records of the city. See TEX. GOV’T CODE ANN. $$ 551.001-.146 (Open
Meetings Act); $5 552.001-.353 (Public Information Act) (Vernon 1994 & Supp. 1999). You have
not asked and we do not comment here on the application of these guarantees or any others that may
be afforded to persons residing within the City or to the public in general in relation to the City.
We addressed a question similar to the one you ask in Attorney General Letter Opinion No.
95-064: whether county law enforcement officers were authorized to issue traffic citations to drivers
speeding on streets that were not part of the county road system. The streets at issue in Letter
Opinion No. 95-064 were dedicated to the public in the subdivision plat filed by the developer, but
the dedication was not accepted by the commissioners court. Accordingly, the streets never became
public. See Commissioners Court Y. Frank Jester Dev. Co., 199 S.W.2d 1004, 1007 (Tex. Civ.
App.-Dallas 1947, writ ref d n.r.e.) (dedication of streets in filed plat is an offer, and acceptance
by commissioners court is necessary to make them public streets); Tex. Att’y Gen. Op. No. JM-200
The Honorable Robert A. Klaeger - Page 2 (X-0016)
(1984) at 4 (tiling plat alone is insufficient to authorize county road maintenance). Letter Opinion
No. 95-064 concluded that the county had no authority to regulate and enforce speed limits on such
roads because they were not public roads. We reach the same conclusion with respect to the
authority of the City of Meadowlakes to enforce traffic laws on the private streets within its
boundaries.
Provisions on regulating traffic are found in the Transportation Code, title 7, subtitle C. See
TEX. TRANSP. CODE ANN. 55 541.001 - 600.003 (Vernon 1999). Included are provisions on traffic
signs and signals, right of way, speed restrictions, parking restrictions, vehicle equipment, and arrest
and prosecution of violators. See id chs. 543 - 547. A provision of subtitle C “relating to the
operation of a vehicle applies only to the operation of a vehicle on a highway unless the provision
specifically applies to a different place.” Id. 5 542.001. A “[hlighway or street” is “the width
between the boundary lines of a publicly maintained way any part of which is open to the public for
vehicular traffic.” Id. $ 541.302(S). In contrast, a “[plrivate road or driveway,” is “a privately
owned way or place used for vehicular traffic and used only by the owner and persons who have the
owner’s express or implied permission.” Id. 5 541.302(9). Thus, provisions relating to the operation
of a vehicle found in title 7, subtitle C of the Transportation Code apply only on publicly maintained
highways and streets.
As you describe the streets of the City of Meadowlakes, they are neither publicly owned nor
maintained and are therefore not subject to the state traffic regulations in question. Accordingly, the
City ofMeadowlakes has no authority to enforce such laws on those private streets. A peace officer
has no authority to issue a citation under state law for a traffic offense on the private streets, and if
such a citation is issued, it may not be prosecuted. See Johnson v. State, 3 1 S.W.2d 1084, 1086-87
(Tex. Crim. App. 1930) (in prosecution for driving on a public road while intoxicated, evidence
established that the road was a public road); Tex. Att’y Gen. Op. No. M-265 (1968) at 3 (in
prosecution for obstruction of a “public road,” prosecution must prove that road was a “public
road”).
The provisions of Transportation Code, title 7, subtitle C apply uniformly throughout the
state, and a local authority, such as a city, may enact an ordinance that conflicts with a provision of
subtitle C, only where subtitle C expressly authorizes it to do so. TEX. TRANSP. CODE ANN.
5 542.201 (Vernon 1999); see id. 5 541.002(3) (defining “local authority” to include “a county,
municipality, or other local entity authorized to enact traffic laws under the laws of this state”).
Section 542.202 of the Transportation Code expressly authorizes a local authority to regulate traffic
within its boundaries in specific ways, such as by regulating parking, designating intersections as
stop or yield intersections, designating school crossing zones, and altering a speed limit within
statutory limitations. Id. 5 542.202 (a)(2), (8), (1 I), (12). However, a city’s regulatory authority
under section 542.202 of the Transportation Code applies only “with respect to a highway under its
jurisdiction.” Id. 5 542.202(a) (emphasis added). We have already noted that a“[h]ighway or street”
is “the width between the boundary lines of a publicly maintained way any part of which is open to
the public for vehicular trafIic.” Id. 8 541.302(5). Thus, a city has no authority under section
542.202 to adopt municipal ordinances regulating traffic on privately-owned streets.
The Honorable Robert A. Klaeger - Page 3 (JC-0016)
You specifically ask whether the City of Meadowlakes may use public monies for the
enforcement of state and municipal traffic laws on the private streets owned by the MPOA. Because
we conclude that the City lacks authority to enforce state or local traffic laws on the privately-owned
streets within its boundaries, we conclude that it may not expend public funds for that purpose.
Article III, section 52 of the Texas Constitution prohibits the legislature from authorizing a
county, city, town, or other political corporation to lend its credit or grant public money or anything
of value to an individual, association, or corporation, with exceptions not relevant to your question.
Article XI, section 3 ofthe constitution provides that no “county, city, or other municipal corporation
shall make any appropriation or donation” to any private corporation or association. These
provisions prevent the gratuitous application of funds to a private use, but they do not invalidate an
expenditure that is made for the direct accomplishment of a public purpose, even though it may
incidentally benefit a private interest. See Tex. Att’y Gen. LO-94-078, at 2 (and authorities cited
therein). Because the City of Meadowlakes has no authority to enforce state and municipal traffic
laws on the private streets owned by the MPOA, there is no public purpose for expending public
funds in attempting to do so. Under Texas law, public funds may not be expended to maintain
privately-owned roads. See generally Exparte Conger, 357 S.W.2d 740 (Tex. 1962); Tex. Att’y
Gen. Op. No. DM-13 (1991); Tex. Att’y Gen. LO-94-078. We conclude that in the absence of
authority to enforce traffic laws on the privately-owned streets within the City, the expenditure of
public funds on such activity does not serve a public purpose and is prohibited by article III, section
52 and article XL section 3 of the Texas Constitution.
The Honorable Robert A. Klaeger - Page 4 (JC-0016)
SUMMARY
Provisions in the Transportation Code, title 7, subtitle C, relating
to the operation of a vehicle, apply only on public roadways and not on
private roads or streets unless expressly applicable. Accordingly, the City
of Meadowlakes has no authority to enforce state and municipal traffic
laws on privately-owned streets within its boundaries. A peace officer
has no authority to issue a citation for a traffic offense on the private
streets, and if such a citation is issued, it may not be prosecuted.
Article III, section 52 and article XI, section 3 of the Texas
Constitution prohibit the City of Meadowlakes to use public monies to
enforce state and municipal traffic laws on its private streets.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129669/ | OPPlCE OF THE ATTORNEY GENERllL STATE OF TEFXS
JOHN CORNYN
March 8, 1999
Ms. Doretta Conrad Opinion No. JC-0012
Administrator
Texas State Board of Plumbing Examiners Re: Whether section 5B(a) of the Texas
P.O. Box 4200 Plumbing License Law, TEX. REV. CIV. STAT.
Austin, Texas 78765 ANN. art. 6243-101 (Vernon Supp. 1999),
authorizes the StateBoard ofPlumbing Examiners
to adopt plumbing codes of statewide
applicability, and related questions (RQ-1034)
Dear Ms. Conrad:
Section 5B(a) ofthe Texas Plumbing License Law (the “Act”), TEX. REV. CIV. STAT.ANN.
art. 6243-101 (VemonSupp. 1999), see id. art. 6243-101,s 1 (entitling act), requires the State Board
ofPlumbing Examiners (the “Board”) to adopt “the Southern Standard Plumbing Code, the Uniform
Plumbing Code, and the National Standard Plumbing Code,” all of which are adopted by private
entities. You ask about the Board’s authority under section 5B to adopt plumbing codes of statewide
applicability and about a municipality’s authority to adopt a code that varies from the codes the
Board has adopted. We construe section 5B(a) under the presumption of constitutionality to
incorporate by reference the three listed codes as they existed in 1993, when section 5B was adopted.
Given this construction, we conclude that Attorney General Opinion MW-545 (1982) has been
superseded by the adoption of section 5B and that the Board has authority to adopt statewide
plumbing codes. A municipality need not adopt any of the statewide codes, but it may not adopt a
plumbing code that varies in any material sense from the state standards. Finally, consistent with
our presumption that section 5B(a) is constitutional, we conclude that the Board may not adopt a
code that has been approved by one ofthe three listed entities since section 5B was enacted in 1993.
We look first at the statute about which you ask. Section 5B of the Act provides for the
adoption of plumbing standards:
(a) To protect the health and safety of the citizens of this state, the Board
shall adopt the Southern Standard Plumbing Code, the Uniform Plumbing
Code, and the National Standard Plumbing Code.
(b) In adopting plumbing standards for the proper design, installation, and
maintenance of a plumbing system, a municipality or an owner of a public
water system may adopt standards that do not substantially vary with rules
or laws of this state.
Ms. Doretta Conrad - Page 3 (JC-0012)
no pet.). “Statutes are given a construction consistent with constitutional requirements, when
possible, because the legislature is presumed to have intended compliance with [the constitution].”
Proctor, 972 S.W.2d at 735 (quoting Brady v. Fourteenth Court ofAppeals, 795 S.W.2d 712,715
(Tex. 1990)); see also TEX. GOV’T CODE ANN. 5 311.021(l) (Vernon 1998) (stipulating that
legislature intends to comply with state and federal constitutions).
To render the statute constitutional, we construe section 5B(a) to adopt the Southern Standard
Plumbing Code, the Uniform Plumbing Code, and the National Plumbing Code as they existed at
the time section 5B was adopted. This construction avoids an interpretation that may
unconstitutionally delegate law-making authority to private entities. Accordingly, revisions to the
three codes made since 1993 are not incorporated into state law. Cf: Exparte Elliott, 973 S.W.2d
at 741 (“The general rule is that when a statute is adopted by a specific descriptive reference, the
adoption takes the statute as it exists at that time .“).
With this construction ofsection 5B(a), we consider the questions you ask. You ask whether
the 1993 adoption of section 5B of the Act effectively supersedes Attorney General Opinion MW-
545, which was issued prior to section 5B’s adoption. We conclude that it does. Attorney General
Opinion MW-545 concludes that the Act fails to provide the Board with either express or implied
authority to adopt a plumbing code that governs plumbing work done throughout the state. Tex.
Att’y Gen. Op. No. MW-545 (1982) at 3. Section 5B(a) now provides the Board with express
authority to adopt a plumbing code of statewide applicability. Given the specific legislative
enactment and our construction of section 5B(a) so as to render it constitutional, however, the
Board’s authority to adopt statewide codes is limited to the 1993 editions of the codes.
Concomitantly, the Board has no discretion to adopt subsequent or other editions of the codes.
You also suggest alternative constructions of section 5B(b) and ask which is correct: “Does
Section 5B taken as a whole mean that a city must adopt one ofthe three state approved codes in (a)
but then may modify the standards within one of the three approved codes it has adopted so long as
the modifications do not substantially vary with the standard contained in the code, or does Section
5B mean that a city can adopt any plumbing code it chooses so long as the code does not
substantially vary with the rules or laws ofthis state.7” Letter from Gilbert Kissling, Administrator,
Texas State Board of Plumbing Examiners, to Sarah Shirley, Chair, Opinions Division, Office ofthe
Attorney General (Nov. 18, 1997) (on tile with Opinion Committee).
We conclude that a municipality need not adopt any of the three codes named in section
5B(a). Subsection (b) permits a municipality to “adopt standards that do not substantially vary with
rules or laws of this state.” TEX. REV. CIV. STAT.ANN. art. 6243-lOl, § 5B(b) (Vernon Supp. 1999).
Subsection (b) plainly does not require a municipality to adopt one of the three codes named in
subsection (a).
On the other hand, municipal standards may not vary “substantially” from the state standards
that are incorporated by reference in section 5B(a). Thus, a municipality has no authority to adopt
plumbing standards that materially differ from the state standards. The ordinary and plain meaning
Ms. Doretta Conrad - Page 4 (JC-0012)
of the word “substantial” “encompasses the idea that the thing in question is ‘ample,’ ‘material,’ or
‘considerable’ in degree value, or amount. .” Burrow v. State, 973 S.W.2d 764, 768 (Tex.
App.-Amarillo 1998, no pet.) (~~~~~~~AME~CANHE~TAGEDICTIONARY 1284). The termdoesnot
permit material variations. See BLACK’S LAW DICTIONARY 1280 (5th ed. 1979) (defining
“substantial”); see also City of Temple v. Mitchell, 180 S.W.2d 959,962 (Tex. Civ. App.-Austin
1944, no writ) (suggesting that term “substantial” denotes more than a trifle). We are directed
generally to construe statutory terms consistently with their ordinary meaning. See TEX. GOV’T
CODE ANN. 5 312.002(a) (Vernon 1998).
Whether a particular municipal standard that is not identical to state plumbing standards
varies substantially from that state standard is a question of fact. See Burrow, 973 S.W.2d at 768
(stating that whether something is substantial will “depend upon the circumstances
involved”). Questions of fact cannot be determined in the opinion process. See, e.g., Tex. Att’y
Gen. Op. Nos. DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.
Our construction of section SB(a) obviates the need to answer your final question. You ask
whether, if a private entity that promulgates one of the codes “quits issuing [that] code and binds a
different [unlisted] code under its name,” the Board must adopt the new code. The Board may not
adopt the new code. As we have stated, to preserve section SB(a)‘s constitutionality, we presume
that the section incorporates into state law the codes listed only as they existed in 1993, when section
5B was adopted. Any revisions to the codes that have occurred since 1993, including the one you
particularly describe, consequently are not part of state law.
Ms. Doretta Conrad - Page 5 (JC-0012)
SUMMARY
Section SB(a) of the Texas Plumbing Law, TEX. REV. CIV. STAT. ANN.
art. 6243-101 (Vernon Supp. 1999), incorporates by reference “the Southern
Standard Plumbing Code, the Uniform Plumbing Code, and the National
Standard Plumbing Code” as each existed in 1993, when section 5B was
adopted. The 1993 adoption of section 5B effectively overrules Attorney
General Opinion MW-545, which was issued prior to the enactment of
section 5B. See Tex. Att’y Gen. Op. No. MW-545 (1982) at 3.
Consequently, the Texas State Board of Plumbing Examiners has express
authority under section 5B(a) to adopt a plumbing code of statewide
applicability.
A municipality need not adopt any of the three codes named in section
SB(a). On the other hand, municipal standards may not vary “substantially”
from the state standards that are incorporated by reference in section 5B(a).
Whether aparticularmunicipal standard that is not identical to state plumbing
standards varies substantially from that state standard is a question of fact.
Any revisions to the three codes listed in section 5B(a) that have occurred
since 1993 are not incorporated into state law. Accordingly, the Texas State
Board of Plumbing Examiners may not adopt post-1993 revisions to the
codes.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125025/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
September 28, 2015
The Honorable Rene 0. Oliveira Opinion No. KP-0039
Chair, Committee on Business and Industry
Texas House of Representatives Re: Taxing authority of the Port Isabel-
Post Office Box 2910 San Benito Navigation District (RQ-0021-KP)
Austin, Texas 78768-2910
Dear Representative Oliveira:
On behalf of the Port Isabel-San Benito Navigation District (the "District"), you ask several
questions about the District's taxing authority. 1 The District's brief, attached to your request letter,
states the following facts. The District was formed in 1928-1929 under article III, section 52 of
the Texas Constitution; in an election that created the District and authorized it to levy an
ad valorem tax. District's Brief at 8. In 1939, the District converted into a self-liquidating
navigation district under the predecessor to section 63.039 of the Water Code. Id. The District
exercised its authority to collect the tax at least through 1976. Id. The District is now considering
"reactivat[ing]" the tax to finance projects such as "dredging, upgrading docks and roads, the
construction of additional docks, the maintenance of the port, the operation of the Port, making
improvements to the Port, and possibly constructing different buildings or facilities at the Port."
Id. at 2, 8. The District's questions concern its authority to fund these projects by levying a
maintenance and operation tax under section 63.282 of the Water Code.
A navigation district may be created under two provisions of the Texas Constitution
pursuant to enabling legislation and may be subject to various chapters of the Water Code. 2 Based
1
Letter from Honorable Rene 0. Oliveir~, Chair, House Comm. on Bus. & Indus., to Honorable Ken Paxton,
Tex. Att'y Gen. at 1 (Apr. 20, 2015) and attached Letter Brief from Brian G. Janis, counsel to Port Isabel-San Benito
Navigation Dist. at 8-11 (Apr. 17, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter" and "District's Brief," respectively).
2
TEX. CONST. art. III, § 52(b); Id. art. XVI, § 59(a) (authorizing the Legislature to enact laws concerning
navigation of inland and coastal waters); see TEX. WATER CODE ANN.§§ 60.001-.564 (ch\:lpter 60, general provisions
applicable to all navigation districts), 61.001-.239 (chapter 61, article III, § 52(a) navigation districts), 62.001-.318
(chapter 62, article XVI, § 59 navigation districts), 63.001-.379 (chapter 63, self-liquidating navigation districts)
(West 2004 & Supp. 2014). In addition to general-law authority to create a navigation district, a navigation district
may be created by special act. See, e.g., TEX. SPEC. DIST. CODE ANN. §§ 5004.001-.207 (chapter 5004, creating
Cypress Valley Navigation District), 5006.001-.051 (chapter 5006, creating Matagorda County Navigation District
No. 1), 5007.001-.228 (chapter 5007, creating the Port of Houston Authority of Harris County, Texas) (West 2014).
The Honorable Rene 0. Oliveira- Page 2 (KP-0039)
on the facts stated in the District's brief, we confine our review to pertinent statutes concerning
the taxing authority of a navigation district organized under article III, section 52(b) of the Texas
Constitution and originally created under chapter 61, and the taxing authority of a district that has
converted to a self-liquidating navigation district under chapter 63. Enabling legislation for an
article III, section 52(b) district is located in chapter 61 of the Water Code. See TEX. WATER CODE
ANN. §§ 61.001(1), .021 (West 2004). 3 A general law article III, section 52(b) navigation district
is created in an election administered by a commissioners court, a navigation board, or both. See
generally id. §§ 61.021-.036. In the election, the voters may approve general ad valorem taxing
authority. Id. § 61.035. 4 When a navigation district is created, the commissioners court appoints
the commissioners of the district's navigation and canal commission ("district commission"). Id.
§§ 61.001(2), .071.
Under chapter 61, the district commission determines the cost of improvements and the
cost of maintenance, operation, and upkeep of the district and its improvements, and it certifies to
the coilnty commissioners court the amount of bonds necessary to be issued for these purposes.
Id. §§ 61.231, .236(c). The county commissioners court then levies and collects an improvement
tax to pay interest and redeem bonds and a maintenance and operation tax. Id. § 61.236(a)-(b);
Matagorda Cnty. Drainage Dist. v. Comm 'rs Ct., 278 S.W.2d 539, 541--42 (Tex. Civ. App.-
Galveston 1955, writ ref d n.r.e.) (determining that commissioners court may continue to levy a
maintenance tax after all bonds have been paid, without the necessity of an election). Chapter 61
does not provide separately for voter approval of a maintenance and operation tax.
An article III, section 52 navigation district may convert to a self-liquidating district that
operates under chapter 63 of the Water Code. See TEX. WATER CODE ANN. § 63.039 (West 2004).
Self-liquidating districts "are self-liquidating in character and may be made self-supporting and
return the construction cost of. the district within a reasonable period by tolls, rents, fees,
assessments, or other charges other than taxation." Id. § 63.021(a). The district commission may
collect charges for use of district facilities to use "for maintenance and operation of the business
of the district, to make the district self-supporting and financially solvent, and to retire the
construction cost of the improvements within a reasonable period." Id.§ 63.153(5). The district
commission may issue bonds and "other forms of obligation payable from revenues derived from
improvements and pledge these revenues to the payment of the district's debts in the manner
provided in Subchapter E of Chapter 60 of this code." Id.§ 63.153(8).
Under chapter 60, subchapter E, a navigation district may acquire or construct "facilities
or aids incidental to or useful in the operation or development of the district's ports and waterways
or in aid of navigation and navigation-related commerce in the ports and on the waterways," and
3
General provisions applicable to all navigation districts are contained in chapter 60 of the Water Code. See
TEX. WATER CODE ANN. §§ 60.001-.564 (West 2004 & Supp. 2014).
4
The predecessor statute to section 61.035 of the Water Code, in effect when the district was created in 1928-
1929, required the ballot proposition to contain "the words and none others: 'For the navigation district and issuance
of bonds and levy of tax in payment thereof;' 'Against the navigation district, and issuance of bonds and levy of tax
in payment thereof."' Act approved Feb. 20, 1909, 31st Leg., R.S., ch. 15, § 7 1909 Tex. Gen. Laws 32, 35
subsequently codified in the Revised Civil Statutes as article 5965 in 1911 and as article 8207 in 1925.
The Honorable Rene 0. Oliveira - Page 3 (KP-0039)
incur indebtedness to do so. Id. § 60.101(a)(7), (b) (West Supp. 2014). Such indebtedness may
be paid only by loan or bond sale proceeds and revenue generated from the project financed by
indebtedness. Id. § 60.lOl(b). District revenue is to be used only for the "operation and
maintenance of the improvements and facilities" and interest and sinking-fund payments on
outstanding "obligations issued under [subchapter E] and payable out of the revenue of the
improvements and facilities." Id. § 60.105(a) (West 2004). The district commission may use
revenue that is in excess of that required for these purposes "to pay the cost of improvements and
replacements which are not listed and may establish a depreciation fund." Id.§ 60.105(b).
Chapter 63 authorizes the district commission of a self-liquidating navigation district to
levy a tax to pay principal and interest on bonds that have been approved by the voters. Id.
§§ 63.251, .281. Separately, section 63.282 authorizes a district commission to impose a
maintenance and operation tax, but only with the approv~l of the voters:
(a) With tP.e approval of the electors of the district, the [district]
commission may levy and have assessed and collected for the
maintenance, operation, and upkeep of the district and its
improvements an annual tax of not more than 20 cents on the
$100 valuation on all taxable property in the district. -
(b) The proposition to approve the tax provided in Subsection (a) of
this section may be voted on at the election to create the district
or may be voted on at a separate election to be held in the manner
provided for elections held under Subchapter B of this chapter.
(c) The ballots for the election shall be printed to provide for voting
for or against the proposition: "The levy of a tax of not more
than 20 cents on the $100 valuation for maintenance, operation,
and upkeep of the district and its improvements."
Id. § 63 .282.
With this background in mind, we turn to the District's first question, which is whether the
general taxing authority approved in the election in 1929 that created the District is "sufficient to
'carry over"' after the District converted into a self-liquidating navigation district. District's Brief
at 8. A district commission of a navigation district created under article III, section 52(b) of the
Texas Constitution and operating under chapter 61 of the Water Code is not authorized to levy or
collect a maintenance and operation tax-that authority is vested in the county commissioners
court. TEX. WATER CODE ANN. § 61.236(a)-(b) (West 2004). Upon conversion to a self-
liquidating district, section 63 .282 authorizes a district commission to impose a maintenance and
operation tax but requires the voters to approve a proposition specifically describing the tax. Id.
§ 63.282. The District's Brief does not suggest that a proposition specifically authorizing a
maintenance and operation tax has ever been approved by the voters. Taxing units "must
substantially comply with the requisite procedures exacted by statute in order to arrive at a valid
tax levy," and "[f]ailure to comply with the statutory directives in assessing taxes voids the
assessment." Corpus Christi Taxpayer's Ass'n v. City of Corpus Christi, 716 S.W.2d 578, 580
The Honorable Rene 0. Oliveira - Page 4 (KP-0039)
(Tex. App.-Corpus Christi 1986, writ refd n.r.e.). Although it is an issue of first impression, a
court would likely conclude that the 1929 election in which the voters approved the District and
ad valorem taxation in general does not satisfy the election requirements necessary for a district
commission to impose a maintenance and operation tax under section 63 .282 of the Water Code.
The District's second question is whether revenue from a maintenance and operation tax
may be used for new construction projects andthe dredging of a new port channel in addition to
maintenance dredging of existing waterways. District's Brief at 9. Various provisions of the
Water Code provide for the financing of new facilities and improvements. See, e.g., TEX. WATER
CODE ANN. §§ 63.153, .281 (West 2004). Section 63.282 provides separately for a navigation
district to levy a maintenance tax for "the maintenance, operation, and upkeep of the district and
its improve'!lents," but this provision does not authorize new improvement projects in the first
instance. Id. § '63.282(a) (emphasis added). Whether a particular project is a new improvement
or maintenance and operation of existing improvements is for the navigation commission to
determine in the first instance. Cf Tex. Att'y Gen. L0-92-049 (1992) at 3 (stating that whether a
purchase of property is an improvement or for maintenance or operation is a question of fact that
cannot be determined in an attorney general opinion).
The District's third question is whether section 63.282 of the Water Code requires the
District to obtain the permission of the Cameron County Commissioners Court to set or authorize
a maintenance and operation tax. District's Brief at 10. Unlike chapter 61 of the Water Code,
section 63.282 does not require a self-liquidating navigation district to obtain approval from the
county commissioners court before it may levy a maintenance and operation tax. Compare TEX.
WATER CODE ANN. § 61.236(b)-(c) (West 2004), with id.§ 63.282.
The Honorable Rene 0. Oliveira- Page 5 (KP-0039)
SUMMARY
A court would likely conclude that an election creating a
navigation district under article III, section 52 of the Texas
Constitution pursuant to chapter 61 of the Water Code does not
satisfy the election requirements for a maintenance and operation
tax under section 63.282 of the Water Code. Section 63.282 of the
Water Code authorizes a navigation district to levy a maintenance
tax for "the maintenance, operation, and upkeep of the district and
its improvements," but does not authorize a levy of a tax for new
improvement projects in the first instance. Once the voters have
approved a maintenance and operation tax under section 63.282 of
the Water Code, a self-liquidating navigation_ district need not
further obtain approval from the county commissioners court before
levying the tax.
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/4147429/ | NOT FOR PUBLICATION
File Name: 17a0117n.06
15-3088
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, Feb 22, 2017
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee,
v. ORDER
MICHAEL ALEXANDER, JR.,
Defendant-Appellant.
BEFORE: NORRIS, CLAY, and COOK, Circuit Judges.
Defendant Michael Alexander, Jr. appeals the final judgment of conviction and sentence
of the district court resentencing Alexander to 151 months’ incarceration for possession with
intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The Supreme
Court granted certiorari to consider Alexander’s claims in Alexander v. United States, 137 S. Ct.
295 (2016). Consequently, the Supreme Court vacated our judgment in United States v.
Alexander, 642 F. App’x 506 (6th Cir. 2016), and remanded back to the Sixth Circuit for further
consideration in light of Mathis v. United States, 136 S. Ct. 2243 (2016). Having reviewed the
relevant legal authority and the record herein, we hereby determine that this case shall be
REMANDED to the district court for resentencing for the reasons set forth below.
Alexander was originally sentenced as a career offender under the United States
Sentencing Guidelines because of his prior convictions for, inter alia, gross sexual imposition, in
violation of Ohio Rev. Code § 2907.05. We determined that Ohio’s aforementioned gross sexual
No. 15-3088, United States v. Alexander
imposition statute that had as an element “the use, attempted use, or threatened use of physical
force” and was, therefore, a crime of violence as defined in U.S.S.G. § 4B1.2(a). In light of
Mathis, however, that conclusion is no longer valid.
When determining which crimes fall within § 4B1.2(a), federal courts use the
“categorical approach.” United States v. Covington, 738 F.3d 759, 762 (6th Cir. 2014). This
approach requires a court to look only to the fact of conviction and the statutory definition of the
prior offense and not to the particular facts underlying that conviction. See United States v.
Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014) (citing Taylor v. United States, 495 U.S. 575
(1990)). As the Supreme Court explained in Descamps v. United States, 133 S. Ct. 2276, 2284
(2013), in cases where a statute lists alternative elements, the statute is divisible. When faced
with a divisible statute, where one alternative will qualify as a predicate offense and another will
not, courts should apply the “modified categorical approach” and “look beyond the statutory
elements to ‘the charging paper and jury instructions’ used in a case.” Id. at 2283–84 (quoting
Taylor, 495 U.S. at 602). In examining Ohio’s gross sexual imposition statute, we determined
that the statute was divisible and applied the modified categorical approach.
In applying the modified categorical approach, may look beyond the statutory elements
only in order to determine which version of the crime a defendant violated, and not to determine
the facts underlying the actual conviction. Covington, 738 F.3d at 762–63. The court must then
ask whether the defendant’s offense of conviction, as a category, is a crime of violence.
Descamps, 133 S. Ct. at 2287 (noting that the statute functions as an “on-off switch, directing
that a prior crime would qualify as a predicate offense in all cases or in none.”). If that offense
“sweeps more broadly” and “criminalizes a broader swath of conduct” than would meet the use,
attempted use, or threatened use of physical force prong, then the offense as category, is not a
-2-
No. 15-3088, United States v. Alexander
crime of violence. Covington, 738 F.3d at 764 (quoting Descamps, 133 S. Ct. at 2281, 2283).
As Mathis reaffirms, it is “impermissible for ‘a particular crime [to] sometimes count towards
enhancement and sometimes not, depending on the facts of the case.’” Mathis, 136 S. Ct. at 2251
(quoting Taylor, 495 U.S. at 601).
With respect to Ohio’s gross sexual imposition statute, we examined the charging
documents and concluded that Alexander pleaded guilty to the lesser included offense of
“purposely compel[ling] the other person, or one of the other persons, to submit by force or
threat of force.” Ohio Rev. Code § 2907.05(A)(1). There are a number of cases arising in the
Ohio courts that have affirmed convictions for gross sexual imposition where actual physical
force is not implicated. See, e.g., State v. Dye, 695 N.E.2d 763, 768 (Ohio 1998) (explaining that
“force or threat of force” may sometimes be found “without evidence of express threat of harm
or evidence of significant physical restraint.”); State v. Eskridge, 526 N.E.2d 304 (Ohio 1998)
(finding that force “need not be overt and physically brutal, but can be subtle and
psychological”) (emphasis added). Although none of the cases 1 cited by Alexander contain facts
similar to those of his predicate conviction, the Supreme Court has unequivocally held that this
Court must only look at the offense and determine whether as a category, all convictions under
the statute qualify as crimes of violence. And upon our review of the case law, we cannot say
that all convictions for the crime of gross sexual imposition constitute crimes of violence.
Therefore, we conclude that gross sexual imposition does not qualify as a predicate offense
1
Alexander cites State v. Fortson, No. 92337, 2010 WL 2106010 (Ohio Ct. App. May 27, 2010) (finding
that a corrections officer can be convicted for the use or threatened use of psychological force); State v. Garner, No.
89840, 2008 WL 1822413 (Ohio Ct. App. Apr. 24, 2008) (finding that a lesser showing of force may be sufficient
given the inherent coercion in parental authority when a parent abuses his or her child); State v. Milam, No. 86268,
2006 WL 2639448 (Ohio Ct. App. Sept. 14, 2006) (applying the same to a rape involving the defendant’s son’s
thirteen-year old friend); State v. Riggs, Nos. 04AP–1279, 04AP–1280, 2005 WL 2403963 (Ohio Ct. App. Sept 30,
2005) (implying the use of force when a step-grandfather asked step-granddaughter, who was under the age of
thirteen, to touch his genitals).
-3-
No. 15-3088, United States v. Alexander
under the Guidelines, and REMAND to the district court for resentencing in a manner not
inconsistent with this order.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
-4- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143878/ | Honorable Geo. H. Sheppard
Comptroller of.PublIc Accounts
Austin, Texas
.
Dear Sir: Opinion NO. 0-2506
Re: Whether propertg'belonglngto ati
Independent school district which
is not used for 'schoolmrposes Is
exempt from taxation.
.
We adcnowleage receipt of your 1etter'df~Julg1; 1940,
wherein ga request the oplnlon of this Department as t6 whether
property which IS 'ownedby the,Wolfe City Inaependent3chool
District and 1s~rented cut for business and .resIdentIalpurposes
Is subject 'totaxation.
Your request is as follows:
"About'the year 1923 W. J. Turner died, leaving
a ,wrlttenwill, In which he Willed to the Wolfe City
IndependentSchool District a brick business building
and several residences in the forinof rent property.
The title to this property passed to the school In
due course. The rents and revenues received from
such property since that time have'been used fojr
schpol purposes only, except such as was necessary
for PepaIrs t3 the buildings, etc. The school has
not rendered this property far taxes and has not
paid any taxes thereon. Demand has been tide by the
city, State and county for the school to pay taxes.
Is such demand authorized?
A;tIcle 8, Section 1 of the Constitution of Texas, pro-
vides that . . . All property in this State, whether owned by
natural persons or corporations, other khan rmnlcipal, shall be
taxed in proportion to its value, . . . In 'otherwords, the
Constitution has said that all property owned by persons or cor-
porations, except that belonging to municipal corporations, shall
be subject to taxation.
The Constitution proviaea'forthe establishmentand
maintenance of a system of free WblIc schools. When Article
7, Section 1 of the ConstItution.wasadopted; It'recognizedthat
the education of the messes was a,governmental function for
Hon. Geo. H. Sheppard, page 2 0-2506
therein was used the following phrase: "A general diffusion of
knowledge being essential to the preservation of the liberties
and rights of the people, . . .' Within nine years after the
adoption of the Constitution,the Supreme Court, in the case of
Casslano vs. Ursullne Academy, 64 Tex. 573, recognized that
education was a governmental function.
Pursuant to the provlslon of the Constltutlonabove
quoted, the Leglslature'madeprovision for the establishment
of free public schools and provided, among other things; for
independent school distrkts. These districts were established
to carry out a portion of that function of the government. The
district is not an ordinary corporatlofiorganized for purposes
of gain to Its members, but 1s a public agency, using the motiej
ralssd-'bytaxation to educate the ch+ltien-withinthe district.
It Is'~apolitical subdIvIsIon of the State, to which has b&en
delegated'thepower of carrying on the function of-education.
;;;Bs Estate vs.,School Trustees of Wlllacy County, 33 S.W. (26)
.
While the school district Is strictly a political sub-
divlslon,~it Is design&ted a nainiclpalcorporation,because It
Is an organization of a certain geographical district under
atithorltyof law and invested with a governmentalfunction.
Hatcher vs'.State, 81 S.W. (26) 499; Bexar-Medlna-Atascosa
Counties Water ImprovementDistrict vs. State, 21 S.W. (26) 747;
Short vs. Gouger, 130 S.W. (26) 267.
The power to tax Is an attribute of sovereigntyand-.
the extent to which this power may be exercised for governmanta
purposes finds its only limitation in the Constltulon. Stratton
vs. Commissioners'Court, 137 S.W. 1170 (Writ refused). TaXatIon
is Inherent in sovereignty and without which a constltutlorsl
government cannot exist. It Is vested In the Legislature by the
general grant of legislative power whether speclflcallyenumerated
In the Constitution,among the powers to be exercisedby It, or
not. The constitutionalprovisions In reference to It, therefore,
are more usually Intended or understood as llm&tatlons or restric-
tions upon Its exercise than as a direct grant ?f the power to
the Legislature. 40 Tex. Jur. p. 21.
Therefore, under Article 8, Section 1 *ofthe Constltu-
tion, the taxing power of the Legislature Is limited to the
property of 'all persons and corporations, except mniclpal cor-
porations.
But the framers of the Constitutiongranted to the
Legislature the authority to exempt certain property from taxa-~~'
$Ion by the adopti‘onof Article 8, Sbction 2, which provIdes.that
. . . the Legislature may, by general laws,.exempt from taxation
Hon. Geo. H. Sheljpard,page 3 0-2506
.
public property used for public purposes. . . . .I’
It is then apparent, in so far as this opinion is
concerned, that the Legislature, for the purpose of taxation,
is limited to all property owned by persons or corporations,
except that property which Is owned by municipal corporations
and used for a public purpose. In other words, we believe that
It was~the purpose of the framers of the Constitutionto ex'empt
political subdivisionswhich were carrying out a governmental
function from ,taxatIon,but that when such political subdlvl-
.slonsentered into proprietary enterprises that the property so
uqed wwld be subject to taxation.
,.
Pursuant thereto the Legislature passed Article 7150,
Vernon's Annotated Civil Statutes, whlch~'provIdesthat the fol-
lowing property shall be exempt from taxation, to-wit:
"1. Fubllc school houses . . . .
“4 . All property, whether real or personal, belong-
ing exclusively to this State, or any political
subalvlslonthereof . . ."
The property concerned hereIn is not property on which
Is located a public school house and, therefore, is not exempt
under Section 1 of Article 7150.
The Legislature,when it passed,Artlcle7150, apparent-
ly overstepped'thebounds of Its power when It df;dnot limit the
exemption to property "used for uubllc DurDoses, for Justice
F'underburk,ln the case of City of Abllene vs. State, 113 S.W.
(2a)b31 (Writ of Error Dismissed) said: _~
"It Is apparent that the exemption declared In
said Article 7150 Is more comprehensivethan the power
possessed. The purpose of the
which the Leglslittiire
Legislature Is broad enough to exempt public property
regardless of Its use. This the Legislature wa&!ex-
pressly denied the power to do. But it does not fol-
low, we think, that the statute is for that reason
wholly inoperative. We see no reason why It may not
be operative, as an exercise of all of the power the
Legislature has, to declare the exemption. The de-
clared exemption includes public property used for
public purposes, and to that extent, we think, the
statute.is valid and operative.
It IS elementary that the property concerned herein
and owned by the Wolfe City Independent School District is pb-
llc property. The property is not being "used for Dubllc Dur--'
poses,I'but on the contrary, Is being u&by private IndIvidUals
Hon. Geo. II.Sheppard, page 4 O-2506
for residential and business purposes.
The property does not come within the purview of the
cases of Sherman vs. Wllllams, 19 S.W. 606, or State vs. City
. of Houston, 140 S.W. (2d) 277. In those cases the property was
held to be a part of a special fund which fund was established
to carry out a governmental fuhctlon.
It ls;therefore, our opinion that,the property Is
not exempt from taxation.
.,
Trusting that the foregoing fully answers your Inquiry,
we are
Yours very truly
ATTORNEY GENERALOF TEXAS
By s/Richard Ii.Cocke
Richard R. Cocke
Asalstant
FiHC:N:wc
APPROVEBJUL 22, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Opinion Committee By sbfB Chairman
- - | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125002/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
February 3, 2016
The Honorable Larry Phillips Opinion No. KP-0062
Chair, Committee on Homeland Security
and Public Safety Re: Questions relating to the pos1t10n of
Texas House of Representatives Vice Chairman on the Maverick County
Post Office Box 2910 Hospital District Board of Directors
Austin, Texas 78768-2910 (RQ-0044-KP)
Dear Representative Phillips:
On behalf of the Maverick County Hospital District ("District") you ask three questions
concerning the District's governance. 1 You first ask our opinion on the validity of the position of
vice chair. Request Letter at 2. Assuming its validity, you then ask whether the vice chair
automatically becomes the acting chair upon the chair's resignation. Id. Finally, you ask whether
the vice chair continues as the acting chair until the District's board of directors appoints a new
chair or until the expiration of the resigned chair's term. Id. at 3.
As background, you tell us that the chair of the District resigned from the board of directors
("board"). See id. at 2. You state that at a subsequent board meeting, "a dispute arose among the
Board members as to whether the Vice Chairperson should automatically move into the
Chairperson position." Id. You inform us that "[a] director also disputed whether the Vice
Chairperson position was valid since the District's enabling legislation, Chapter 1118 of the Texas
Special District Code, did not specifically provide for the position of Vice Chairperson, even
though the Bylaws authorize such a position." Id. With this background, we consider your
questions.
The District is a hospital district created under the authority of article IX, section 9 of the
Texas Constitution by special law codified at Special District Local Laws Code chapter 1118. See
TEX. SPEC. DIST. CODE §§ 1118.001-.253, .002 (noting creation under article IX, section 9 and
citing Act of Apr. 29, 1965, 59th Leg., R.S., ch. 172, § 1, 1965 Tex. Geri. Laws 360, 360); see also
TEX. CONST. art. IX, § 9. Such a district may exercise only those powers that are "expressly
delegated to it by the legislature, or which exist by clear and unquestioned implication." Tri-City
Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940); see also Jackson Cty.
Hosp. Dist. v. Jackson Cty. Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-
1
See Request Letter from Honorable Larry Phillips, Chair, House Comm. on Homeland Sec. & Pub. Safety, to
Honorable Ken Paxton, Tex. Att'y Gen. at2-3 (Aug.14, 2015), https://www.texasattorneygeneral.gov/opinion/requests-
for-opinion-rqs ("Request Letter").
The Honorable Larry Phillips - Page 2 (KP-0062)
Corpus Christi 1984, no writ). Implied powers are those that are "indispensable to .... the
accomplishment of the purposes" for which the special district is created. Tri-City Fresh Water
Supply Dist. No. 2, 142 S.W.2d at 947.
Article IX, section 9 generally provides that the purpose of a hospital district is to provide
"medical and hospital care for its needy inhabitants." TEX. CONST. art. IX,§ 9; see also TEX. SPEC.
DIST. CODE§ 1118.lOl(a)-(b) (providing that "district has the responsibility of undertaking [and
shall undertake] any measure, consistent with Section 9, Article IX, ... and this chapter, that the
board determines is necessary to provide hospital and medical care to the district's needy
residents"). Yet, article IX, section 9 is silent regarding the governance of the hospital districts
created thereunder. See TEX. CONST. art. IX, § 9. Relevant to the District's governance, chapter
1118 of the Special District Local Laws Code provi~es that the District's board, "elected by district
voters," shall consist of five members and that the "board shall elect from among its members a
·president, a secretary, and a treasurer." TEX. SPEC. DIST. CODE§§ 1l18.051(a), .055. Because of
the use of the word "shall," section 1118.055 imposes a mandatory requirement that the District
elect a president, secretary, and treasurer. See id. § 1118.055; see also TEX. Gov'T CODE§ 311.016
("'Shall' imposes a duty."). The silence of section 1118.055 regarding the office of vice chair
means only that the District is not required to elect a vice chair: It does not serve as a prohibition
against the election of a vice chair.
Section 1118.105 authorizes the District to adopt rules "for the efficient operation of the
district." TEX. SPEC. DIST. CODE§ 1118.105(a); see also id. § 1118.101. This office has said that
special districts and political subdivisions may adopt governance rules under such authority
provided that the rules are consistent with other applicable constitutional and statutory provisions.
See Tex. Att'y Gen. Op. Nos. GA-0412 (2006) at 2 (stating that hospital district may adopt
Robert's Rules of Order to govern its meetings), DM-228 (1993) at 3 (recognizing that a
commissioners court may adopt reasonable rules that are consistent with relevant law to govern its
meetings). You tell us that pursuant to this authority the District has adopted bylaws to provide
for the governance of the District, which bylaws provide that Robert's Rules of Order shall govern
parliamentary procedure. See Request Letter at 5-6. The bylaws provide for the election of a vice
chair. See id. at 4; see also id., Appendix D § 5.1 (Bylaws, Board of Directors, Maverick Cty.
Hosp. Dist.) (on file with the Op. Comm.). To the extent the position of vice chair promotes
efficient operation of the District by allowing for the continued governance of the board in the
absence of the chair and thus serves the District's purpose of providing medical and hospital care
for the needy inhabitants, providing for the office of vice chair is within the scope of the District's
implied powers. Moreover, a rule adopted pursuant to section 1118.105 to provide for the election
of a vice chair differs from but does not conflict with section 1118.055, which neither requires nor
prohibits the position of vice chair. See Tex. Att'y Gen. Op. No. GA-1079 (2014) at 3 (recognizing
that an irreconcilable conflict involves a direct conflict such that "it is impossible to comply with
both provisions at the same time") (citing State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-
Houston [1st Dist.] 1963), ajj"d, 376 S.W.2d 341 (Tex. 1964)); see also Tex. Att'y Gen. Op. No.
GA-0369 (2005) at 4 ("Mere difference is insufficient to constitute an irreconcilable conflict.").
Accordingly, a court would likely conclude that the position of vice chair on the District's board
is valid.
The Honorable Larry Phillips - Page 3 (KP-0062) ,
Your remaining questions concern the role and duties of the vice chair upon the resignation
of the chair. Request Letter at 2-3. Chapter 1118 provides that directors serve staggered four-
year terms. TEX. SPEC. DIST. CODE § 1118.051(b). It also provides that the board shall elect its
officers at the first meeting after each director's election. Id. § 1118.055. Thus, if some directors
are elected by District voters in an election every two years, then the board shall elect its officers
as frequently. But as chapter 1118 does not provide for the position of vice chair, it does not
expressly outline the role of the vice chair after the resignation of the chair. Thus, your remaining
questions involve only the District's governance documents and are not questions determined
purely by reference to Texas statutes or the constitution. The bylaws of a special district are
analogous to the charter of a municipality in that they are the governing documents for the different
entities. And this office typically does not construe municipal charters out of deference to the city
official's authority to construe their own charter. Tex. Att'y Gen. Op. No. JC-0035 (1999) at 3.
Accordingly, we do not address these questions and instead leave it to the District's board to
determine the role and duties of the vice chair upon the resignation of the chair.
The Honorable Larry Phillips - Page 4 (KP-0062)
SUMMARY
A court would likely conclude that the position of vice chair
on the board of the Maverick County Hospital District is valid.
Absent guidance from chapter 1118 of the Special District
Local Laws Code, questions regarding the role and duties of the vice
chair upon the resignation of the chair are for the District's board to
resolve.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129768/ | QBffice of ttp SWmep &Beneral
.&ate of 4Eexae
DAN MORALES
ATTORNEY
GENERAL
September 23, 1996
The Honorable Cindy Maria Gamer OpinionNo. DM-413
District Attorney
349th Judicial District Re: Whether a county is liable for the
P.O. Box 1076 payment of medical expenses that a county
Crockett, Texas 75835 jail inmate who is not an eligible county
resident under chapter 61 of the Heahh and
The Honorable Joey L. Boswell Safkty Code incurs (RQ-685,lDS 27238)
Comanche County Auditor
courthouse
Comanche, Texas 76442
Dear Ms. Gamer and Mr. Boswell:
Ms. Garner has requested our opinion as to whether a county is liable for the
payment of me&A expenses incurred by an inmate in the county jail who cannot prove he
or she is indigent. By “indigent,” we understand Ms. Gamer to refer to an “eligible
resident,” as section 61.002(4) of the Health and Safety Code defines that term.’
Ms. Gamer indicates that, at present, the Houston County Hospital District and Houston
County disagree as to the resolution of the issue: the hospital district contends that the
county must pay the medical expenses of a noneligible inmate, while the county argues
that a noneligible inmate directly should receive the bii for any necessary medical
expenses.2
Similarly, Mr. Boswell asks which entity is responsible for the cost of medical
services rendered to an inmate in the Comanche County Jail in the following situation:
X, a resident of the Comanche County Hospital District, was incar-
cerated in the Comanche County Jail. Upon being incarcerated X
was taken by a Comanche County Deputy Sheriff to the Brownwood
Regional Medical Center in Brown County, Texas, for emergency
‘An ~eligible resident” for pmposos of chapter61 of the Health and Safety Code is h person who
meets the income and resources requirements established by tb[e] chapter or by the govemmcntal entity,
public hospital, or hospital district in whose jurisdiction the pemoa resides.” Health & Safety Code
8 61.002(4).
lThe qwstion before us here concems tbc medical costs a noneligible inmate of a county jail
inaus; it tberoforo differs Ilium the question before us io Attorney Gcneml opinion DM-225. lo that
opinion this office considomd wh&er a coonty was liable for the costs of medical setvia provided to
eligible inmates of the county jail. Attorney General Opinion DM-225 (1993).
The Honorable Cindy Maria Gamer - Page 2 (oM-4 13)
The Honorable Joey L. Boswell
treatment. Thus[,] medical expenses were incurred in Brown County
for treating X. The Comanche County Sheriff’s Department
assumed that X was indigent, but there was no determination made
as to the indigency of X. The Comanche County Hospital District
was not notified since it does not have a detoxification facility for
treating ethanol alcohol addiction whereas u Brown County. does
have such a facility.
We believe that our answer to Ms. Garner’s question will answer Mr. Boswell’s question
as well.
Article 104.002(d) of the Code of Criminal Procedure resolves the question.
Because the legislature amended subarticle (d) twice in 1991. by the passage of Senate Bii
404 on March 21, 1991, and by the passage of House Bill 1652 on May 25, 1991, we
must consider which version controls. Senate Bill 404 is recorded in the session laws as
Act of March 21, 1991,72d Leg., RS., ch. 14, § 284(19), 1991 Tex. Gen. Laws 42, 223
(“chapter 14”); House. Bill 1652 is recorded in the session laws as Act of May 26, 1991,
72d Leg., RS., ch. 434, 5 1, 1991 Tex. Gcn. Laws 1597, 1597-98 (“chapter 434”).
In Attorney General Opinion DM-225, we determined that the legislature intended
chapter 434 to prevail over chapter 14. Attorney General Opinion DM-225 (1993) at 3
n. 1. Chapter 14 was a nonsubstantive amendment to the existing subarticle (d) that the
legislature enacted to conform the provision to the codification of the Indigent Health
Care and Treatment Act as chapter 61 of the Health and Safety Code. Id. Chapter 434,
on the other hand, effected substantive changes to subarticle (d). See id.
Article 104.002(d) provides as follows:
A person who is or was a prisoner in a county jail and received
medical, dental, or health related services from a county or Q hoqitil
cktrict shall be required to pay for such services when they are
rendered. If such prisoner is an eligible county resident as defined in
Section 61.002, Health and Safety Code, the county or hospital
district providing the services has a right of subrogation to the
prisoner’s right of recovety t+om any source, limited to the cost of
services provided. A prisoner, unless the prisoner fully pays for the
cost of services received, shall remain obligated to reimburse the
county or hospital district for any medical, dental, or health services
provided, and the county or hospital district may apply fbr
reimbursement in the manner provided by Chapter 61, Health and
Safety Code. A county or hospital district shah have authority to
recover the amount expended in a civil action.
We understand both of you to ask about a situation in which a hospital district, not the
county, provides the medical setvices.
The Honorable Cindy Maria Gamer - Page 3 (DM-4 13 )
The Honorable Joey L. Boswell
Subarticle (d) makes clearthat the noneligible hunate is ultimately responsible for
the cost of medical services he or she receives while the inmate is incarcerated whether
the services are provided by a county or a hospital district. Additionally, we construe
subarticle (d) to provide a hospital district that has rendered medical services to an imnate
of the county jail with a right to receive payment immediately upon rendering the services.
We understand, however, that an inmate may be unable to pay the hospital district
immediately upon receiving the medical services. For example, we note that an imnate
who is not going to be released from a county jail must surrender, for safekeeping
purposes, his or her property (including money) to the officer receiving the inmate into the
jail, see 37 T.AC. 5 265.10, and thus may not have sufficient funds on his or her person
when the hospital district renders the medical services. We thus consider which entity, the
county or the hospital district, must, until the inmate pays for the medical services, carry
the cost of the medical services if the inmate is unable to pay the hospital district at the
time the services are rendered.3
Article 104.002(a) of the Code of Criminal Procedure deems the county of
incarceration liable for all expenses it incurs in the safekeeping of prisoners contined in the
county jail or that the county is keeping under guard, unless article 104.002 provides
Otherwise.On the other hand, we are unaware of any provision that deems a hospital
district liable for the costs of providing medical services to a noneligible inmate of tlte
county jail. This indicates that the county is responsible for carrying the cost of the
medical services until it collects reimbursement from the inmate. We believe the
legislative history of article 104.002 of the Code of Criminal Procedure lends guther
support to this assertion.
Prior to its amendment in 1987, article 104.002 of the Code of Criminal Procedure
required a county to pay all of a county jail inmate’s medical expenses, regardless of the
inmate’s abiity to pay for the services. See Hearings on H.B. 2308 Before the House
Comm. on County A&its, 70th Leg., RS. (Apr. 7, 1987) (statement of Representative
Stiles, author) (tape available from House Video/Audio Services Office). In 1987 the
legislature amended article 104.002 by adding subarticle (d), which, except for the
recurring references to “‘hospital district,” reads substantially as it does now. See Act of
May 26, 1987, 70th Leg., R.S., ch. 1010, 8 1, 1987 Tex. Gen. Laws 3412, 3412-13; see
also Act of May 26, 1991, 72d Leg., RS., ch. 434, $ 1, 1991 Tex. Gen. Laws 1597,
1597-98. The purpose of the 1987 amendment was not only to require an inmate in a
county jail to pay for medical and dental services that he or she receives while
incarcerated, but also to authorize the county to bring a civil action to recover costs it
expends on a particular inmate. See House Comm. on County AlEsirs, Bill Analysis, H.B.
2308,7Oth Leg., R.S. (1987).
XknemUy,howeva, s hospital mustprovideemergencyservicesto an inmate who requiresthem
regardless of the inmate’s ability tc pay. See Health & Safeq Code $311.022(a); see a.& id.
5 241.003(4) (defining ‘general hospital”).
TheHonorableCmdy MariaGsmer - Page 4 (DM-413)
The Honorable Joey L. Boswell
A representative of the Sheriffs’ Association of Texas, which drafkd the 1987
amendment, testified before the House Committee on County A%Xrs that House Bii 2308
provided, through various methods, for reimbursement of the medical costs that counties
pay for county jail inmates. See Hearings on H.B. 2308 Before the House Comm. on
County Affairs, 70th Leg., RS. (Apr. 7. 1987) (statement of Dan Smith, Bell County
sheriff) (tape available from House Video/Audio Services Office). Fit, an inmate who
has sufficient finds deposited with the sheritT, upon requesting medical attention, must
sign an agreement that the costs of the medical services be subtracted &om his or her
inmate account. See id. Second, an inmate who is eligible for assistance under chapter 6 1
of the Health and Safety Code must sign a statement of indigency, and the county must
assist the inmate to apply for indigents’ health care fimds that are available. See id.
As noted above, in 1991 the legislature amended subarticle (d) by, smong other
things, adding the repeated references to “hospital district.” See Act of May 26, 1991,
72d Leg., RS., ch. 434, 5 1, 1991 Tex. Gen. Laws 1597, 1597-98. A witness who
testified before the Senate Subcommittee on Health Services indicated that the revisions
were necessary to authorize the county or hospital district in which the inmate is
incarcerated to recover from the county or hospital district in whi?h the inmate resides.
Hearings on S.B. 1336 Before the Senate Subcomm. on Health Services, 72d Leg., RS.
(Apr. 29, 1991) (testimony of Jim Allison, County Judges and Commissioners Assoc.)
(tape available 6om Senate Staff Services).
In our opinion, the legislature intended the 1991 amendment to reflect the fact
that, under the Indigent Health Care and Treatment Act, Health & Safety Code ch. 61,
either a county or a hospital district may be responsible for an eligible inmate’s medical
care, dependent upon the location of the inmate’s residence. The amendment thus
authorizes the provider of such medical services, whether a county or a hospital district, to
recover its expenses. We do not believe the legislature intended to require a hospital
district to cany the expense of providing medical services to a noneligible inmate of the
county jail until the inmate pays for the services. A hospital district has no obligation to
bear, either temporarily or permanently, the cost of medical expenses for a noneligible
inmate, regardless of whether the inmate resides in the hospital district.4 CJ Code Crim.
4Additionally, the Eighth Amendment to the United States Coustitution requires the government
to provide medical care Yor those whom it is punishing by incarcemtion.” Esrelle v. Gamble. 429 U.S.
97, 103 (1976); see also Ramos v. Lamm, 639 F.2d 559,574 (10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981) (quoting EsteNe, 429 U.S. at 103); Srour v. Slate, 612 N.E.2d 1076, 1083 (lnd. ct. ASP. 1993)
(citing Erlelle, 429 U.S. at 103). The county, not the hospital district, is punishing the imnates. Under
the Supreme Court’s rationale in Eslelle, the county should therefore be required to provide medical care
for its inmates.
Moreover, the duty to provide medical care may include the duty to pay for the services. See
Monmou~h County Correctional Inst. Inmates v. Lunzotq 643 F. Supp. 1217, 1226-27 (D.N.J. 1986),
afd in part, modjied in part on other grounds, 834 F.2d 326 (3d Cir. 1987). cert. denied, 486 U.S. 1006
(1988). In Monmourh County Correctional Insrihtrion fnmo~es the court found that a county jail had a
duty to pay for its inmates’ necessary medical care bxause the inmates’ financial dependency results from
their incarceration. Id. at 1227.
TheHonorable Cindy MariaGamer - Page 5 (DM-413)
The Honorable J0ey.L. BosweU
Proc. art. 104.002(a). Furthermore, ifan inmate has surrendered his or her property to the
county jail, see 37 T.A.C. 5 265.10, the county, not the hospital district, has access to the
property and may be reimbursed from the property. See Hearings on H.B. 2308 Before
the House Comm. on County Affairs, 70th Leg., RS. (Apr. 7, 1987) (statement of Dan
Smith, BeU County sheriff) (tape available from House Video/Audio Services 050~).
In conclusion, we construe article 104.002 of the Code of CriminaJ Procedure
ultimately to obligate a noneligible inmate to pay the costs of medical services the inmate
receives while incarcerated. Jn the event the noneligible inmate is unable to pay a hospital
district at the time the inmate receives such services from the hospital district, the county
of incarceration must pay, at the time of rendering, the hospital districts Jn the situation
Mr. BosweU presents, therefore, X is ultimately liable for the costs of the medical services
X receives from the Brownwood Regional Medical Center.6 Jf X is unable to pay for the
services at the time X receives them, Comanche County, the county of incarceration, must
pay the Brownwood Regional Medical Center. Of course, article 104.002(d) authorizes
the county to seek reimbursement from the inmate or from another source.
‘We do not here consider whether a hospital district may bill a noneligible inmate who is unable
topaythehospitaldistridatthetimethcsenicesarerendered.
6We assume that X is in fad a noneligible inmate. IfX is eligible for assistance under chapter 61
of the Health and safety Code, either the county of resident or the hospital district of residence is liable.
insccordanawithchapter61,forthecostofmedicalservicesXreceivesduringhisorherincarceration
See generally Attorney General Opinion DM-225 (1993); supro note 2 (citing Attorney General Opinion
DM-225).
The Honorable Cindy Maria Garner - Page 6 ( D M- 4 I 3 )
The Honorable Joey L. Boswell
SUMMARY
Under article 104.002(d) of the Code of Criminal Procedure, a
hospital district is entitled, at the time it renders medical services to
an inmate of the county jail who is not eligible for assistance under
chapter 61 of the Health and Safety Code, to payment from the
inmate. The noneligible inmate is ultimately liable for the wsts of
medical services he or she receives while incarcerated. If the inmate
is unable to pay the hospital district at the time he or she receives
medical services from the hospital district, the county of in-
carceration must pay for the services. Section 104.002(d) authorizes
the county to seek reimbursement from the inmate or from another
source, however.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Kymberly K. Oltrogge
Assistant Attorney General | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147404/ | [J-63-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 716 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 3/6/2007 in the Court of
: Common Pleas, Lehigh County,
v. : Criminal Division at No. CP-39-CR-
: 0003637-2003.
:
JUNIUS BURNO, : ARGUED: May 11, 2016
:
Appellant :
OPINION
JUSTICE WECHT DECIDED: February 22, 2017
On March 6, 2007, Junius Burno was convicted on two counts of first-degree
murder, 18 Pa.C.S. § 2502(a), and sentenced to death. In this direct appeal from the
Court of Common Pleas of Lehigh County, Burno challenges the admissibility of his
confession to the murders, the sufficiency of the evidence, the alleged denial of his right
to a speedy trial, and the admissibility of certain evidence establishing an aggravating
factor for purposes of the death penalty. We reject all but one of these challenges on
the merits. We find merit to Burno’s argument that one of his statements to police was
inadmissible because it was obtained during the course of plea negotiations. However,
we ultimately conclude that the erroneous admission of this statement at trial was
harmless. Consequently, we affirm Burno’s death sentence.
On April 13, 2003, two men entered an apartment in Allentown, Pennsylvania
and proceeded to shoot and kill Carlos Juarbe and Oscar Rosado. The investigation
that followed eventually led the Allentown Police to arrest Terrance Bethea for the
murders. Soon thereafter, Bethea implicated Burno in the shootings. On September
12, 2003, Burno surrendered to the police and was arrested. Burno elected not to
speak with the police about the murders without counsel. Burno then retained the
services of Glennis Clark, Esquire. In the weeks that followed, Burno provided the
police with multiple inculpatory statements regarding the murders.
Attorney Clark arranged a September 24, 2003 meeting with the police and
assistant district attorney (“ADA”) Maria Dantos. On that date, Burno and Attorney
Clark met with Detective Wayne Simock, Detective John Miller, and ADA Dantos in the
law library of the Lehigh County District Attorney’s Office. At the inception of the
meeting, Detective Simock and ADA Dantos detailed the rules applicable to Burno’s
cooperation. Specifically, ADA Dantos explained to Attorney Clark and to Burno that
Burno was required to tell the truth about what had happened on April 13, 2003, and
would need to testify against Bethea at Bethea’s preliminary hearing and trial. In
exchange, ADA Dantos promised that she would not seek the death penalty against
Burno. However, if the negotiations fell through or broke down for any reason, any
statements that Burno had made would be used against him at a future trial. Burno and
Attorney Clark both agreed to these terms. Burno then spoke about the murders for
approximately two hours. The conversation was not recorded.
During this conversation, Burno identified the locations of the two guns that he
and Bethea used during the murders. Detectives Simock and Miller then took Burno to
the police station to record his statement. On the way, they stopped to retrieve the
secreted guns. Once at the police station, Detective Simock provided Burno with
Miranda1 warnings. Burno then repeated his statement, which was tape-recorded. In
1
Miranda v. Arizona, 384 U.S. 436 (1966).
[J-63-2016] - 2
this statement, Burno claimed that he drove Bethea to Juarbe’s apartment to trade guns
for drugs, but asserted that Bethea was the only person to enter the apartment. Burno
stated that he remained in the car at all times.
The police and ADA Dantos did not believe Burno’s statement. ADA Dantos
conferred with Attorney Clark about these suspicions. ADA Dantos and Attorney Clark
agreed that, in order to test the veracity of his statement, Burno should submit to a
polygraph test. On September 26, 2003, police officer Keith Morris met with Burno,
provided Miranda warnings, and administered the polygraph test. Although he had
known about the polygraph examination and consented to it, Attorney Clark was not
present for the examination itself. Typically, at the end of a polygraph examination,
Officer Morris would take some time and review the results. However, Officer Morris did
not find that necessary in this case inasmuch as he detected immediately that Burno’s
statement was not truthful. Officer Morris then informed Burno that he had failed the
polygraph test. Burno stared at Officer Morris, and stated that no one could save him at
that point. Officer Morris responded by telling Burno that he did not believe that no one
could save him. Officer Morris then told Burno that, generally, telling the truth is a way
that a person in his position could help himself.
After pondering Officer Morris’ statement briefly, Burno asked to speak with
Attorney Clark. However, Attorney Clark was unavailable at that time. After being
advised of the results, ADA Dantos proceeded to the interview room to inform Burno,
who was crying and upset, that authorities were attempting to contact his attorney.
Burno apologized to ADA Dantos for lying, and expressed remorse for his actions. ADA
Dantos reminded Burno that, because he was not truthful, the parties no longer had a
deal to forego the death penalty. ADA Dantos explained to Burno, however, that if he
was truthful from that point on, the parties could recommence plea discussions. She
[J-63-2016] - 3
emphasized that he had to tell the truth and that, at that point, there was no deal on the
table. Hearing that, Burno told ADA Dantos that he was remorseful and that he would
have to face the consequences for his crimes.
Eventually, ADA Dantos was able to reach Attorney Clark by telephone. Attorney
Clark then spoke with Burno over the phone. Attorney Clark agreed to come to the
police station, but could not get there for some time. Nevertheless, Attorney Clark
authorized the police to commence discussions with Burno before he arrived, in part
because he believed that Burno could not do any more damage than he already had
done by lying.
Burno met with Detective Simock and Detective Joseph Effting, even though
Attorney Clark had not yet arrived at the police station. The detectives once again
provided Burno with Miranda warnings. In the ensuing statement, Burno admitted that
he and Bethea went to Juarbe’s residence, knowing that Juarbe was a drug dealer, and
intending to rob Juarbe to settle a dispute that Bethea had with Juarbe. Burno admitted
that he got into a scuffle with Rosado, and then shot him with a nine millimeter handgun.
After Burno provided additional details surrounding the murders, Attorney Clark arrived
at the station and knocked on the door of the interview room.
Once Attorney Clark was seated and had spoken to Burno, Detectives Simock
and Effting continued the interview. Much of this portion of the interview involved
reviewing parts of what Burno had stated before Attorney Clark arrived. Among other
points, Burno again admitted that he had participated in the murders.
At the conclusion of the interview, Detective Simock reminded Burno that, for the
authorities to consider taking the death penalty off the table, Burno’s statement had to
be truthful and Burno had to testify against Bethea. However, on October 28, 2003, the
day before Bethea’s preliminary hearing, Burno informed Detective Simock and ADA
[J-63-2016] - 4
Dantos that he no longer was willing to cooperate in the prosecution of Bethea. In
addition to removing the death penalty from consideration, Burno wanted his homicide
charges reduced to third-degree. ADA Dantos would not make that deal, and, in light of
Burno’s decision not to cooperate, indicated to Burno and Attorney Clark that there
would be no agreement. She informed them that she would be seeking the death
penalty against Burno.
Prior to trial, Burno filed numerous motions to suppress the statements that he
provided to the police. Among his claims for relief, Burno maintained that: (1) the
warrant for his arrest lacked probable cause, and any resulting statements were fruit of
the poisonous tree; (2) his statements were coerced by Officer Miller during the
polygraph examination; (3) his statements were inadmissible because they were made
during the process of plea negotiation; and (4) the September 26, 2003 statements
were involuntary because Attorney Clark was not present for the first portion of the
statement, and the second portion of the statement was tainted unconstitutionally by
Attorney Clark’s absence during the first part. After an evidentiary hearing, and in two
separate orders, the trial court denied Burno’s motions to suppress his statements on all
points except the argument relative to the first portion of the September 26, 2003 tape-
recorded confession. Because Attorney Clark was not present for that part of the
statement, the trial court suppressed that portion of the statement. However, because
Attorney Clark arrived for the second portion, the court ruled that portion to be
admissible.
Because of ADA Dantos’ involvement in obtaining Burno’s confessions, and
believing that she might be a material witness at trial concerning the voluntariness of the
confessions, Burno filed a pre-trial motion for the assignment of a new prosecuting
attorney. On April 18, 2005, the trial court granted the motion in part, relegating ADA
[J-63-2016] - 5
Dantos to serve as second chair at Burno’s trial instead of as the lead prosecutor. The
Commonwealth filed a motion seeking reconsideration, which the trial court denied. On
April 21, 2005, the Commonwealth filed a notice of appeal from the order denying its
motion for reconsideration.
In its notice of appeal, the Commonwealth did not expressly invoke Pa.R.A.P.
313, which governs appeals of collateral orders. Nonetheless, the Commonwealth set
forth the terms of the rule and explained that the order was “separable and collateral to
the main cause of action, the right involved is too important to be denied review, and the
question presented is such that if review is postponed until final judgment, the claim will
be irreparably lost.” See Notice of Appeal, 4/21/2005, ¶2. Notably, the Commonwealth
did not certify that the order terminated or substantially handicapped its prosecution
pursuant to Pa.R.A.P. 311(d).
In the interim, both parties sought permission to file an interlocutory appeal,
contending that the issue involved a controlling issue of law upon which a substantial
basis for difference of opinion existed. See 42 Pa.C.S. § 702(b). The trial court granted
permission to both parties.2 However, the Superior Court denied permission to appeal
upon that basis. See Commonwealth v. Burno, Nos. 39 and 47 EDM 2005 (July 6,
2005) (per curiam).
The Superior Court accepted the Commonwealth’s earlier appeal from the denial
of the motion for reconsideration. In an unpublished memorandum, the court reversed
the trial court’s decision. See Commonwealth v. Burno, No. 1084 EDA 2005, slip op. at
1, 6 (Pa. Super. Apr. 21, 2006). The Superior Court alluded briefly to the requests for
2
The trial court permitted the parties to file interlocutory appeals pertaining only to
the order requiring ADA Dantos to take a back seat in the prosecution. The trial court
denied Burno’s request to file an interlocutory appeal to challenge the denial of his
motion to suppress all of his statements.
[J-63-2016] - 6
permission to file interlocutory appeals, but never explained the basis for its jurisdiction.
Id. at 3 n.4. On the merits, the court held that, because it was Burno and not the
Commonwealth who would call ADA Dantos as a witness at trial, the trial court erred in
forcing ADA Dantos to serve as second (instead of first) chair in the prosecution. Id. at
6 (citing Commonwealth v. Willis, 552 A.2d 682, 696 (Pa. Super. 1988) (recognizing an
exception to the general rule that an attorney cannot prosecute a case and be a
material witness in the same proceeding when it is the other party that is calling the
attorney as a witness)).
The appeal delayed the proceedings for one year. Burno filed a pre-trial motion
to dismiss the charges against him pursuant to Pa.R.Crim.P. 600, alleging that he was
denied his right to a speedy trial because the Commonwealth’s appeal lacked a
jurisdictional basis. Burno maintained that, because the Commonwealth did not
demonstrate that the trial court’s order was, in fact, a collateral order, and did not certify
that the appeal terminated or substantially handicapped the prosecution pursuant to
Pa.R.A.P. 311, the Superior Court never had jurisdiction to rule upon the appeal.
Because the Commonwealth did not perfect jurisdiction, it had no right to appeal, and,
therefore, did not act with due diligence so as to justify the delay. Following an
evidentiary hearing, the trial court denied the motion.
The Commonwealth tried Burno before a jury from February 26 to March 5, 2007.
In an earlier appeal, this Court provided the following thorough summary of the facts
presented at Burno’s trial:
On April 13, 2003, Mary Meixell Moyer telephoned the police complaining
[that] she heard gunshots fired next door at 2628 South 4 th Street in
Allentown. Upon arriving at the scene, Allentown Police Officer Scott Derr
discovered blood on the residence’s front steps and on the back of a sign
located on the porch. The front door of the residence was ajar, and the
inside lights were on when Officer Derr entered the residence to perform a
security check. Officer Derr discovered two homicide victims inside the
residence and obvious signs that a struggle had taken place within the
[J-63-2016] - 7
residence. One of the victims was found lying on his back in the doorway
leading to the bedroom, while the other victim was found in the back of the
bedroom curled up in a fetal position. Officer Derr secured the scene and
waited for detectives from the Criminal Investigation Division to arrive.
Subsequently, the first victim, who was found in the bedroom doorway,
was identified as Carlos Juarbe, the lessee of the residence, and the
second victim was identified as his friend, Oscar Rosado. Detectives
processed the scene and spoke to witnesses. Specifically, when
questioned, Ms. Moyer informed the police that, immediately after hearing
gunshots, she saw two men flee the area in a red or maroon compact car
with its headlights turned off. The detectives found a trail of blood leading
from Juarbe’s apartment to the spot where Ms. Moyer saw the car drive
away from the area. The detectives recovered various blood samples,
shell casings from a nine-millimeter Luger, both jacketed and unjacketed
lead projectiles, and a sawed-off 12-gauge double barreled shotgun
containing one live shell and one spent shell of bird shot.
The blood evidence, which the detectives recovered from the scene, led
police to Terrance Bethea, who the police arrested on September 12,
2003, and charged him with murder. [The investigation led the police to
believe that Burno participated in the murders with Bethea].
Later, on the same day, police interviewed Bethea’s wife, who informed
them that Burno and Bethea arrived together at her house during the early
morning hours of April 13, 2003, and Bethea had a shotgun wound.
Neither Burno nor Bethea would tell her how or why Bethea was shot. All
three proceeded to a hospital in Philadelphia to seek medical treatment for
Bethea, and while at the hospital, Bethea gave hospital personnel, and
subsequently the police, a false name, false birth date, and false
information about how he had been shot.
Thereafter, Detectives Simock and Miller contacted the Lansford Police
Department, and based upon information provided by that Department,
the detectives determined that Burno owned a car, which matched Ms.
Moyer’s description of the vehicle that fled the scene of the double
homicide. On the evening of September 12, 2003, Burno turned himself
into the Allentown Police Department, and he was arrested. The next day,
the Commonwealth filed a criminal complaint charging Burno with, inter
alia, two counts of criminal homicide, and thereafter, the Commonwealth
gave timely notice of its intention to seek the death penalty.
Subsequently, Burno gave several conflicting statements to the police.
For instance, he initially gave the police a statement claiming he and
Bethea were innocent bystanders who were visiting Juarbe when two
armed intruders entered the residence, and Bethea was shot when he got
caught in the crossfire between Juarbe and the intruders. However, on
[J-63-2016] - 8
September 24, 2003, Burno gave the police a taped statement in which he
admitted to some involvement with the crime. Burno explained during the
taped statement that, some months prior to the killings, Bethea had
informed him that he obtained two handguns when he burglarized his
neighbor’s apartment. One of the handguns was a nine-millimeter model,
which Bethea gave to Burno. [Burno] also explained that, in April of 2003,
when he took his ex-wife, Michele Wright, medicine for their daughter, he
stole a .38 caliber handgun from underneath Ms. Wright’s bed. Burno
claimed he drove Bethea to Juarbe’s residence on the night in question in
order to trade the .38 caliber handgun for drugs and money, and he
remained in the car at all times. Burno further claimed in his taped
statement that he heard two gunshots and then saw Bethea emerge from
Juarbe’s residence with a leg wound. Burno asserted [that] he disposed
of the stolen guns after he transported Bethea to the hospital in
Philadelphia.
On September 26, 2003, Burno gave a third statement to police in which
he confessed that he and Bethea went to Juarbe’s residence to rob him of
drugs and money. In this third statement, Burno admitted [that] he
entered Juarbe’s residence, [that] he struggled with Rosado, and [that] he
shot Rosado in the bedroom with the nine-millimeter handgun. This
version was consistent with the trial testimony of David Rawlins, a
jailhouse informant who testified pursuant to a plea deal that Burno had
provided him with a detailed account of the murders. According to
Rawlins’ testimony at Burno’s trial, Burno claimed that he came to
Bethea’s aid after Bethea was shot in the leg and he shot Rosado after
Rosado dropped to his knees, pleading for his life. Moreover, while jailed
in the Lehigh County Prison, Burno made several telephone calls, which
were recorded, admitting to his ex-wife and an acquaintance, James
Alford, that he was involved in the shootings.
Dr. Samuel Land, a forensic pathologist who performed an autopsy on
Rosado, testified that Rosado died of a gunshot wound to the head. The
bullet entered his left ear and then severed the jugular vein and carotid
artery as it proceeded downward into the body. Based on the trajectory of
the bullet, Dr. Land opined that the gunman was above Rosado at the time
of the shooting. Another forensic pathologist, Dr. Sara Lee Funke,
performed an autopsy of Juarbe, and she observed eleven gunshot
wounds, three of which were fatal chest wounds. Dr. Funke recovered
from Juarbe a total of five bullets, which were of two different types. She
testified that the first type was a leaded, non[-]jacketed projectile, which
entered Juarbe from both contact and non-contact wounds, as indicated
by the presence or absence of injury to the skin surrounding the point of
entry. She concluded that the contact wounds and the positions and
trajectories of their entries were consistent with a struggle between the
victim and the assailant. She further testified that the second type of bullet
recovered from Juarbe, the jacketed ammunition, did not enter through a
[J-63-2016] - 9
contact wound. Finally, she noted that, in considering the trajectory of the
bullets, with regard to at least one of Juarbe’s wounds, the shooter was
elevated higher than Juarbe.
A ballistics expert, Pennsylvania State Police Sergeant Eric Wolfgang,
analyzed the ammunition recovered from the scene and concluded [that]
two guns were utilized during the shootings inside of Juarbe’s residence.
He testified that the jacketed bullets came from a nine-millimeter handgun
and the non[-]jacketed bullets were a .38 Special multi-ball type of
ammunition, which was compatible with the gun Burno had stolen from his
ex-wife.
Burno took the stand in his own defense and recounted the sequence of
events contained in his second police statement, i.e., he claimed that he
gave the stolen .38 caliber handgun to Bethea and remained in the car at
all times. He claimed [that] he did not know [that] anyone had been killed
inside of Juarbe’s residence until the next day when he saw a news report
about the shooting. Burno maintained [that] he gave a false statement
implicating himself in Rosado’s murder because he was afraid of the death
penalty, and his attorney warned him that Bethea would likely blame him
for both murders. In rebuttal, the Commonwealth produced a fourth
statement made by Burno that had been previously suppressed by the trial
court on Sixth Amendment grounds. This fourth statement contradicted
Burno’s trial testimony and indicated that Burno had, in fact, shot both
Juarbe and Rosado.
At trial, James Alford, the acquaintance to whom Burno had confessed in
the recorded prison telephone call, denied any knowledge of Burno’s
involvement in the shootings. However, Alford admitted that, on April 13,
2003, the night of the murders, he received a telephone call from Burno
asking if he could borrow Alford’s vehicle, which was larger than Burno’s
vehicle, to take Bethea to the hospital. Alford described how they
exchanged vehicles. Alford acknowledged at trial that he subsequently
gave a taped statement to police in which he indicated that, when the men
exchanged vehicles on April 13, 2003, Burno admitted to his participation
in the death of Juarbe and Rosado. However, at trial, Alford contended
[that] his statement to police was “fabricated.”
The Commonwealth additionally introduced at trial testimony from
Bethea’s neighbor, Paul DeMaria, who indicated [that] he had a nine-
millimeter handgun, a stereo, and phone stolen from his home only days
after informing Bethea that he would be out of town for a few days.
Another neighbor, who lived with DeMaria, testified [that] she later
observed the stereo and phone in Bethea’s residence.
Commonwealth v. Burno, 94 A.3d 956, 959-62 (Pa. 2014).
[J-63-2016] - 10
At the conclusion of trial, the jury convicted Burno of two counts of first-degree
murder. See 18 Pa.C.S. § 2502(a). The case proceeded to the penalty phase, during
which the Commonwealth argued that three aggravating circumstances justified
imposition of the death penalty: (1) Burno committed a killing in the perpetration of a
felony, 42 Pa.C.S. § 9711(d)(6); (2) Burno had a significant history of felony convictions
involving the use or threat of violence to the person, id. § 9711(d)(9); and (3) Burno had
been convicted of another murder committed at the same time as the offense at issue,
id. § 9711(d)(11). Regarding the significant felony convictions aggravator, the
Commonwealth introduced evidence of Burno’s prior convictions for robbery and
conspiracy to commit burglary. Burno took issue with the use of his prior conspiracy
conviction, maintaining that the crime did not involve the use or threat of violence to
another person.
The jury found only one aggravator, that Burno had been convicted of another
murder at the time of the offense at issue. The jury weighed that factor against the
mitigating circumstances that it found pertaining to Burno’s character and record and
the circumstances of the offense, see 42 Pa.C.S. § 9711(e)(8) (“[a]ny other evidence of
mitigation concerning the character and record of the defendant and the circumstances
of his offense”), and found that the aggravating factor outweighed the mitigating
circumstances. Accordingly, the jury recommended two death sentences. On March 6,
2007, the trial court formally imposed the two death sentences.
On March 12, 2007, Burno’s trial and penalty phase attorneys filed post-sentence
motions. Therein, Burno alleged, inter alia, that the trial court had committed multiple
errors and that Burno’s sentence was excessive. Burno also argued that the verdict
was against the weight of the evidence and that the trial evidence was insufficient to
sustain his first-degree murder convictions. His attorneys also moved to withdraw as
[J-63-2016] - 11
counsel, and sought leave to amend or supplement the motions upon receipt of all
transcripts. The trial court granted the motion to withdraw as counsel, and appointed a
new attorney to represent Burno on appeal. Appointed counsel filed an uncontested
motion for leave to file amended post-sentence motions, which the trial court granted.
On May 28, 2008, counsel filed amended post-sentence motions in which counsel
presented a number of additional claims, including multiple assertions that trial counsel
was ineffective.
Following a three-day hearing, the trial court vacated Burno’s judgment of
sentence, and awarded him a new trial. Specifically, the trial court determined that trial
counsel was ineffective for failing to object to certain portions of the prosecutor’s closing
argument. See Burno, 94 A.3d at 966-67. Because the court awarded Burno a new
trial, it did not rule upon any of the other claims that he raised in his post-sentence
motions.
The Commonwealth appealed the new trial award to this Court, and Burno filed a
protective cross-appeal. We first considered the sufficiency of the evidence offered by
the Commonwealth to prove Burno guilty of first-degree murder, an examination that we
are obligated to undertake even though the trial court did not rule upon the sufficiency
claim and even though neither party raised it before this Court. See Commonwealth v.
Staton, 38 A.3d 785, 789 (Pa. 2012). In determining that the evidence was sufficient,
our Court set forth the following analysis of the relevant evidence:
[T]he Commonwealth presented evidence that, immediately after hearing
gunshots fired from Juarbe’s residence, Ms. Moyer saw two men flee from
the area in a vehicle, which matched the description of a vehicle owned by
Burno. Forensics determined [that] the blood trail, which led from Juarbe’s
residence to the spot where the vehicle had been parked, matched that of
Bethea, who later implicated Burno. Uncontested forensics evidence
revealed that bullets fired from two guns, including the type of gun [that]
Burno had previously stolen from his ex-wife, were found at the scene and
killed the victims. Dr. Land testified [that] Rosado died from a gunshot
[J-63-2016] - 12
wound to his head, and Dr. Funke testified [that] Juarbe suffered eleven
gunshot wounds, including three fatal chest wounds. The Commonwealth
presented evidence that Burno turned himself into [sic] the police and
confessed to participating in the murders. Additionally, the
Commonwealth presented evidence of confessions Burno had made to his
ex-wife and Alford while using a county prison telephone, as well as the
confession he had made to a jailhouse informant. Although Burno testified
[that] he gave the gun, which he had stolen from his ex-wife[,] to Bethea,
and he remained in his vehicle during the killings, the jury was free to
discount Burno’s testimony and to credit the ample evidence presented by
the Commonwealth establishing Burno’s identity as a gunman.
Burno, 94 A.3d at 969.
This Court then focused upon the propriety of the trial court’s consideration of
ineffective assistance of counsel claims on direct appeal. We noted that, at the time
that the trial court reviewed the claims, that court did not have the benefit of this Court’s
decision in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). In Holmes, we held that
courts should entertain claims of ineffective assistance of counsel on direct review only
if there is good cause shown, and “the unitary review so indulged is preceded by the
defendant’s knowing and express waiver of his entitlement to seek PCRA[3] review from
his conviction and sentence, including an express recognition that the waiver subjects
further collateral review to the time and serial petition restrictions of the PCRA.” Id. at
564. In light of this pronouncement from Holmes, we dismissed Burno’s ineffective
assistance of counsel claims without prejudice, effectively deferring them until collateral
review.4 We then remanded the case to the trial court to consider the claims that Burno
3
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46.
4
Despite deferring Burno’s claims, we nonetheless concluded that “deferral
without commentary upon the ineffectiveness claims giving rise to the Commonwealth’s
appeal would be fruitless and may cause confusion.” Burno, 94 A.3d at 972. Thus, “for
the sake of clarity,” we proceeded to address the merits of the ineffectiveness claim
upon which the trial court granted relief, and concluded that the trial court had erred in
its disposition. This discussion was dicta, and Justice Baer authored a concurring
(continued…)
[J-63-2016] - 13
had raised in his post-sentence motions that did not implicate the effectiveness of trial
counsel and that the court had not yet addressed. Burno, 94 A.3d at 978.
On remand, the trial court reviewed the remainder of Burno’s issues, and
determined that Burno was not entitled to relief. Consequently, by order and opinion
dated September 28, 2015, that court denied Burno’s motions. On October 14, 2015,
Burno filed a notice of appeal. On the same day, the trial court directed Burno to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On October 23, 2015, Burno timely filed his concise statement. The trial court did not
issue a separate opinion in response to Burno’s concise statement. Instead, the court
opted to rely upon its prior expressions, including the September 28, 2015 opinion that it
issued in support of its decision to deny Burno’s post-sentence motions.
Burno raises the following issues for this Court’s consideration:
1. Did the lower court err in admitting [Burno’s] September 26,
2003 statement to police as it was obtained by exploitation of
the initial illegality in interrogating [Burno] minutes earlier in
violation of his right to counsel?
2. Did the lower court err in admitting [Burno’s] statement as it
was made in the course of negotiations between the parties
and was therefore inadmissible under Pa.R.E. 410?
3. Did the lower court err in admitting [Burno’s] statement as it
was obtained as the result of undue coercion by the
prosecutor, who spoke privately with [Burno] in the midst of a
post-indictment custodial interrogation when [Burno] was
represented by counsel and then pressured him to confess?
4. Did the lower court err in admitting [Burno’s] statement as it
was obtained as the fruit of an illegal arrest?
(…continued)
opinion (joined by Justice Todd) distancing himself from that portion of the majority
opinion.
[J-63-2016] - 14
5. Was the evidence of murder insufficient because the
Commonwealth failed to prove that the decedents were
lives-in-being before the events in question?
6. Did the trial court err in denying [Burno’s] motion to dismiss
under [Pa.R.Crim.P.] 600 where it took the Commonwealth
1,249 days to bring [Burno] to trial, a delay caused primarily
by the Commonwealth’s improper appeal of the lower court’s
ruling relegating the lead prosecutor to second chair?
7. Did the trial court err in allowing the Commonwealth to
present aggravating evidence that [Burno] had previously
been convicted of conspiracy to commit burglary where the
facts and jury verdict in that case proved that there was no
risk of personal violence and conspiracy itself is not a crime
of personal violence?
Brief for Burno at 5.
Burno’s first four issues concern the admissibility of the various statements that
he provided to the police and to ADA Dantos. Our standard of review over such claims
is well-settled:
[O]ur initial task is to determine whether the [suppression court’s] factual
findings are supported by the record. In making this determination, we
must consider only the evidence of the prosecution’s witnesses, and so
much evidence of the defense that remains uncontradicted when fairly
read in the context of the record as a whole. When the evidence supports
the factual findings, we are bound by such findings; we may reverse only if
the legal conclusions drawn therefrom are erroneous.
Commonwealth v. Perez, 845 A.2d 779, 788 (Pa. 2004) (citation omitted). For ease of
discussion, we consider Burno’s issues in chronological order instead of in the order
that his brief presents.
On or about September 12, 2003, Burno learned that the police wished to speak
with him regarding the Juarbe and Rosado murders. Burno turned himself in to the
authorities, and ultimately was arrested based upon an arrest warrant and a supporting
affidavit of probable cause. Burno contends that the affidavit lacked sufficient probable
[J-63-2016] - 15
cause to justify his arrest, and, therefore, maintains that his subsequent confessions
were fruit of the poisonous tree and should have been suppressed.
On September 13, 2003, Detectives Miller and Simock submitted an affidavit of
probable cause in support of an arrest warrant for Burno. The affidavit contained
twenty-one paragraphs detailing the detectives’ investigation of the murders. The
detectives described the scene of the crime, the recovery of the weapons and
ammunition, and the location of the bodies when police first arrived. The affidavit
included a summary of Ms. Moyer’s initial reports to the police. The detectives
explained that, through the use of DNA evidence, they had determined that Bethea had
been present at the scene of the murders. They also learned that Bethea had checked
himself into a Philadelphia hospital on the night in question to be treated for a shotgun
wound.
Additionally, Detectives Miller and Simock noted that they spoke to another
witness who had been in a romantic relationship with Juarbe. The witness told the
detectives that she knew that Juarbe kept a sawed-off shotgun in his residence. She
also noted that Bethea and Juarbe were friends and spent time together at a local bar.
Bethea subsequently was arrested, and he implicated Burno for the first time. Bethea
told police that Burno was inside Juarbe’s residence at the time of the shooting, that
Bethea had been wounded by a shotgun blast, and that he and Burno left the scene in
Burno’s vehicle. Bethea’s wife, Kellyanne Meade, told the police that Burno and Bethea
came to her apartment on the night in question. Burno informed her that Bethea had
been shot. When she asked how he had been shot, neither Burno nor Bethea would
provide her with any information or details about the shooting or the evening. The
affidavit then reported that Meade informed the police that the trio drove to the hospital
in a maroon-colored vehicle.
[J-63-2016] - 16
Burno asserts that the information contained in the affidavit falls short of probable
cause, noting that only two of the twenty-one averments in the affidavit even mentioned
him. He argues that the information contained within the four corners of the affidavit
established only that he was present at the scene of the crime and that he departed
after Bethea was shot. Nothing implicated him in the actual murders. The affidavit
contained no details regarding what Burno actually did while at Juarbe’s residence.
Burno then argues that the police omitted a portion of Bethea’s statement that
exculpated Burno. Specifically, Bethea had told police that two other men entered the
residence and shot and killed Juarbe and Rosado. Finally, Burno asserts that the
detectives misrepresented Meade’s statement to the police. According to Burno,
Meade told the police that Burno and Bethea arrived at her house in a minivan and then
drove to the hospital in another car, one owned by an individual named Prince Alford.
According to Burno, Meade did not tell the police that they drove to the hospital in
Burno’s maroon vehicle. Burno notes that no physical evidence linked him to the
murders, and asserts that the affidavit of probable cause established only that he was
present at the scene, nothing more.
“There is, of course, no doubt that the issuing authority must have probable
cause to believe a suspect guilty of a crime charged against him before issuing a
warrant for his arrest. This is ancient law and basic to our concept of freedom.”
Commonwealth v. Krall, 304 A.2d 488, 489-90 (Pa. 1973) (citing Giordenello v. United
States, 357 U.S. 480 (1958)). In determining whether probable cause exists, we apply
a totality of the circumstances test. Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa.
1999) (citing Illinois v. Gates, 462 U.S. 213 (1983)). Probable cause to arrest exists
when “the facts and circumstances within the police officer’s knowledge and of which
the officer has reasonably trustworthy information are sufficient in themselves to warrant
[J-63-2016] - 17
a person of reasonable caution in the belief that an offense has been committed by the
person to be arrested.” Commonwealth v. Gwynn, 723 A.2d 143, 148 (Pa. 1998) (citing
Beck v. Ohio, 379 U.S. 89 (1964)). The question we ask is not whether the officer’s
belief was “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742
(1983). Rather, we require only a “probability, and not a prima facie showing, of
criminal activity.” Gates, 462 U.S. at 235 (citation omitted).
We must construe applications for arrest warrants in a “common sense,
nontechnical, ungrudging and positive manner.” Commonwealth v. Baker, 615 A.2d 23,
25 (Pa. 1992) (citations omitted). In reviewing whether probable cause exists, we afford
deference to a magistrate’s finding of probable cause. Commonwealth v. Council, 421
A.2d 623, 628 (Pa. 1980). Finally, we note that the fact “[t]hat other inferences could be
drawn does not demonstrate that the inference that was drawn by the police and the
magistrate was unreasonable.” Commonwealth v. Moss, 543 A.2d 514, 518 (Pa. 1988)
(emphasis omitted).
Applying this standard to the information contained within the affidavit and the
magisterial district judge’s decision, we conclude that there was probable cause to
justify the issuance of the arrest warrant. Burno is correct to assert that the affidavit
was not rife with information implicating him as one of the murderers. However, Burno
demands more from the affidavit than the law requires. The affidavit need only
establish the probability that Burno was involved in the murders. The affidavit
established without question that Juarbe and Rosado were murdered. The affidavit
contained statements from Ms. Moyer, who indicated that she heard gunshots and saw
two men fleeing the scene in a maroon car. Records discussed in the affidavit revealed
that Burno owned a similarly colored car. The affidavit further set forth the forensic
evidence that tied Bethea to the murders. Bethea, who was wounded in the leg during
[J-63-2016] - 18
the shootout, placed Burno at the scene of the crime, which also made it probable that
Burno was one of the two men who fled the scene shortly after Ms. Moyer heard
gunshots. There was no forensic evidence to suggest that any other perpetrators were
present at the scene.
This information suggested more than Burno’s mere presence at the scene.
Burno’s presence at the scene, plus the fact that two people were seen hastily fleeing
the scene soon after the gunshots, plus Burno’s assistance in Bethea’s escape in a car
belonging to Burno, plus Burno’s unwillingness to discuss the events with Bethea’s wife,
collectively produce at least a probability that Burno was a participant in the murders.
At a minimum, the information provided the magisterial district judge with a reasonable
basis to conclude that Bethea did not act alone, and that it was probable that Burno was
an accomplice, if not a principal actor.
Burno’s assertions that the police omitted or misrepresented certain facts do not
alter our probable cause determination. If a search warrant is based upon an affidavit
containing deliberate or knowing misstatements of material fact, the search warrant is
invalid, unless probable cause exists notwithstanding any deliberate omissions or
misrepresentations of fact. See generally Franks v. Delaware, 438 U.S. 154, 155-56
(1978) (holding that a warrant must be voided if an affiant made a false statement
knowingly and intentionally, or with reckless disregard for the truth, unless the affidavit’s
remaining content is sufficient to establish probable cause). Even assuming, arguendo,
that the detectives omitted Bethea’s statement that two other men committed the
murder and misrepresented Meade’s statements about which cars were used on the
night in question, probable cause existed nonetheless. Bethea confirmed that Burno
was present at the shootout during which Bethea was wounded, and that Burno helped
Bethea escape from the scene of the crime. This information makes it probable that
[J-63-2016] - 19
Burno was involved at least as an accomplice. Bethea’s self-serving exculpatory
statements would not have negated that probability, nor were they supported by any
evidence that the police had discovered. Additionally, even if Meade told the police that
Burno and Bethea arrived and left in different vehicles, suggesting the presence of
something other than a maroon vehicle, the affidavit still contained Ms. Moyer’s
statement that she saw two men leaving the murder scene in a maroon vehicle. As
well, the affidavit set forth information connecting Burno to a vehicle of that color. Upon
our deferential review, that information sufficed to support the probable cause finding.
The alleged misrepresentations or omissions do not upset that calculus.
Next, Burno sets forth two challenges to the latter portion of his September 26,
2003 confession. First, he asserts that the confession was inadmissible because it was
made in the course of plea negotiations, in violation of Rule 410 of the Pennsylvania
Rules of Evidence. Second, he contends that the confession should have been
suppressed because it was tainted by the illegality of the first portion of the
conversation, which portion the trial court suppressed because it was obtained without
Attorney Clark’s presence. We address each contention in turn.
After he was arrested, Burno and his counsel indicated that Burno was willing to
talk to the Commonwealth in reference to the murders. A meeting took place between
Burno, his attorney, and ADA Dantos in the District Attorney’s Office. Two detectives
who participated in the investigation were also present. Suppression Hearing
Transcript, June 2, 2004, (H.T., 6/2/04) at 36-37. The parties agreed that, in exchange
for a truthful statement, a plea, and testimony against his codefendant, the
Commonwealth would not seek the death penalty. Hearing Transcript, February 11,
2009, (H.T., 2/11/09), at 188, 193. On September 24, 2003, Burno gave his statement
to police. Id. at 193-95. He claimed that he had no involvement in the killings and that
[J-63-2016] - 20
he merely waited outside the victims’ apartment while co-defendant Bethea went inside
and committed all the crimes himself. The Commonwealth did not believe Burno, and
asked him to take a polygraph, which he failed. According to ADA Dantos, because
Burno lied in his statement to the police, she told Burno that “he had no deal.” Id. at
196.
On September 26, 2003, after Burno was told that he failed the polygraph, he
grew very upset and broke down crying. He was very apologetic for lying and wanted,
in ADA Danto’s words, “to get back on board.” Id. at 205-06. According to ADA Dantos,
she told Burno: “you no longer have a deal, but you can work from here. Let’s start from
here. Give us the truth, testify and we will see where we are.” H.T., 6/2/04, at 85. ADA
Dantos also confirmed that Burno’s attorney “was hopeful at that point that there was
still room for something less than a death sentence” and that “his hope was to do the
best for his client and try and get him some kind of deal, something less than death by
getting him to tell the truth.” H.T., 2/11/09 at 201-02.
Burno then gave a fully inculpatory confession without his attorney present, and
then again with his attorney present. Nonetheless, on the day before his co-defendant’s
preliminary hearing, Burno told ADA Dantos that he no longer was willing to testify
against Bethea. Burno told ADA Dantos that he did not believe there was any
difference between life and death, because it did not give him “any light at the end of the
tunnel, no hope for [his] future.” H.T., 6/2/04 at 85-86. He stated to ADA Dantos, “I am
going to roll the dice; take my chance at trial.” Id. At that point, ADA Dantos informed
Burno that “death is back on the table.” Id.
Burno moved to suppress the second statement that he gave on September 26,
2003 (made when his attorney was present), on the grounds that it was made in the
context of plea discussions. The trial court denied the motion to suppress, finding that
[J-63-2016] - 21
“at the time of the statement, negotiations had ended.” Trial Court Order, April 6, 2005,
at 2. The trial court explained: “The parties had reached an agreement . . . and thus
had entered the performance phase of their contractual arrangement. Accordingly,
[Burno] could have held no reasonable expectation that the statement was uttered only
in the course of negotiations.” Id.
Before this Court, Burno argues that the trial court erred in admitting his
statement as it was made in the course of negotiations and, therefore, inadmissible
under Pa.R.E. 410(a)(4).
Pa.R.E. 410(a)(4) precludes the admissibility of “a statement made during plea
discussions with an attorney for the prosecuting authority if the discussions did not
result in a guilty plea or they resulted in a later withdrawn guilty plea.” The rule bars
admission of the defendant’s offer to plead guilty, the plea agreement, or statements
made in the course of plea negotiations when no guilty plea is subsequently entered or
if entered is withdrawn. This prohibition “makes obvious sense. A contrary rule would
discourage plea negotiations and agreements, for defendants would have to be
constantly concerned whether, in light of their plea negotiation activities, they could
successfully defend on the merits if a plea ultimately was not entered.” 5 Crim. Proc. §
21.2(h) (4th ed.) (footnotes omitted).
Not every statement making reference to a deal or omission of jail time is
necessarily a plea discussion for purposes of this rule. Hutto v. Ross, 429 U.S. 28
(1976). First, the accused must exhibit an actual subjective expectation to negotiate a
plea at the time of the discussion; and second, the accused’s expectation must be
reasonable given the totality of the circumstances. Commonwealth v. Calloway, 459
A.2d 795, 800-01 (Pa. Super. 1983) (adopting the Fifth Circuit’s two-tiered analysis in
U.S. v. Robertson, 582 F.2d 1356 (5th Cir. 1978), for determining whether plea
[J-63-2016] - 22
negotiations are underway). In Commonwealth v. Vandivner, 962 A.2d 1170, 1181 (Pa.
2009), we observed that “the very word negotiation posits the participation of two parties
and not unilateral conduct,” and specifically declared that:
Of primary importance in assessing an accused's subjective expectation of
negotiating a plea is whether the Commonwealth showed an interest in
participating in such discussions. In line with this reasoning, voluntary,
unsolicited statements uttered by an accused to authorities cannot be said
to be made in furtherance of striking a plea bargain.
Id. at 1181. Vandivner provides an example of an accused’s statement that was not
protected by Pa.R.E. 410, because there was no evidence that the Commonwealth
showed an interest in participating in plea discussions at the time the accused gave his
inculpatory statement.
James Vandivner (“Vandivner”) shot his estranged girlfriend and her son in front
of several eye-witnesses and fled into the woods. After he was apprehended and while
he was being taken into an interview room, Vandivner blurted out to State Troopers
“This is a death penalty case. I don’t want the needle. Life for life. Tell the [district
attorney] I will plead guilty to life. I would have killed myself if I knew Michelle was
dead.” Id. at 1180. Prior to trial, Vandivner sought to suppress the statements that he
made to the troopers. He argued that his statements were intended to “initiate plea
negotiations;” therefore, they were inadmissible under Pa.R.E. 410(a)(4). Id. at 1181.
The trial court found that Vandivner’s voluntary, unsolicited statements to the troopers
were not made in furtherance of striking a plea bargain. On appeal, this Court found
that the trial court did not abuse its discretion, explaining:
Here, there is no allegation by appellant, nor is there any evidence in the
record suggesting that, at the time of appellant's statement, when he had
just been apprehended for a murder witnessed by several people, the
Commonwealth had conveyed any interest in negotiating a plea.
Appellant's statement was a voluntary, unsolicited confession to the State
Police troopers, not a statement made in furtherance of non-existing plea
[J-63-2016] - 23
negotiations. Thus, the trial court did not abuse its discretion in denying
appellant's motion in limine.
Vandivner, 962 A.2d at 1181-82. See also Calloway (“The Commonwealth neither
compelled the appellant to come forward nor exhibited a willingness to enter into plea
negotiations with him.”).
In Commonwealth v. Stutler, 966 A.2d 594 (Pa. Super. 2009), the Superior Court
was faced with a different scenario, one more analogous to the present case. There,
while in the custody of Pennsylvania State Police regarding a charge of receiving stolen
property, John Stutler (“Stutler”) stated that “he would be willing to cooperate with the
Commonwealth” on unrelated burglary and conspiracy charges, “if he would receive
judicial consideration for his cooperation.” Id. at 596-97. The troopers relayed Stutler’s
message to the district attorney who, in turn, authorized the troopers to communicate to
Stutler her “plea bargain offer of county sentences for the stolen property charge and
the [burglary and conspiracy] charges” and “immunity for information regarding any
other crimes in which Stutler had been involved.” Id. at 597. The troopers
communicated the offer to Stutler, who then gave a statement fully admitting his
participation in the burglary. Subsequently, Stutler recanted his agreement to cooperate,
and the Commonwealth’s offer of county time was withdrawn. The trial court denied
Stutler’s motion to suppress, and the jury found him guilty of all charges.
On appeal, Stutler argued that the trial court erred in failing to suppress his
confession pursuant to Pa.R.E. 410(a)(4), because it was made in the course of plea
discussions. With respect to whether Stutler exhibited an actual subjective expectancy
that his statements were made in regard to plea negotiations, the Superior Court found
relevant the trooper’s testimony that Stutler told him that he was willing to cooperate
with the Commonwealth if he would receive judicial consideration in return. The
Superior Court found Stutler’s subjective expectancy was reasonable, noting that Stutler
[J-63-2016] - 24
refused to give his statement until he received leniency, and only confessed after the
trooper communicated the district attorney’s offer of county time for his cooperation. Id.
at 600.
The Superior Court distinguished Calloway, finding that Stutler’s inculpatory
statement to the trooper was neither voluntary nor unsolicited. The Superior Court
emphasized that at the time he gave his statement, he was under arrest, and he made
his statement in response to the district attorney’s offer of county time in return for his
cooperation. Id. at 601. Finding that the Commonwealth exhibited a willingness to
enter into plea negotiations, the Court concluded that Stutler’s statement was made
during plea negotiations, and that under Pa.R.E. 410(a)(4), the trial court erred in
admitting it into evidence. See also Commonwealth v. Wolf, 510 A.2d 764, 767 (Pa.
Super. 1986) (stating that "[if] the Commonwealth or a representative of the authorities
had initiated the inquiry, or shown an interest in resolving the case short of trial, we
would not hesitate to protect the accused's actions.").
Here, as in Stutler, the defendant had a subjective expectation that he was
confessing as part of plea negotiations. Detective Wayne Simock, who testified on
behalf of the Commonwealth, was present when Burno stated that he expected to
receive something in return for his cooperation. Detective Simock testified:
Q. At the time he gave the [second] statement, were there any conditions
in terms of the status of these negotiations with the Commonwealth, in
terms of his deal?
A. He was still told that he still needed to testify; that the statement had to
be the truth this time.
****
Q. In this second interview where you have talked to Mr. Burno, what was
his demeanor during the second interview?
A. Concerned about his well being and what was going to happen to him.
Time and time again he would make the comment that his life was in our
[J-63-2016] - 25
hands, and that his understanding was that with his cooperating, if he
followed through with what we had asked him --
****
THE COURT: What did he say, Detective Simock?
A. That he believed with his cooperation, that the death penalty would be
off the table, and that he would receive a life sentence.
H.T. 6/2/04, at 49.
The record also demonstrates that Burno’s subjective expectation was
reasonable. At the time he gave the statement, Burno was under arrest for two
murders. He had just failed the polygraph. He was told that the original deal was off.
He was surrounded by detectives and ADA Dantos. He was upset and concerned
about facing the death penalty. His attorney was advising him to tell the truth in the
hopes of obtaining something less than the death penalty. ADA Dantos then expressed
her willingness to recommence plea negotiations, which were to begin with Burno
making both a truthful statement and a promise to testify against Bethea.
Following these discussions, the parties did, in fact, reach a plea deal involving
Burno’s second confession on September 26, 2003. ADA Dantos testified that the deal
she made with Burno in exchange for his confession was: “truthful statement, testimony
[against Bethea], and in exchange for that we would take death off the table.” H.T.,
6/2/04, at 88. She also explained how, when Burno reneged on the deal and refused to
testify at Bethea’s preliminary hearing on September 28, 2003, “death [was] back on the
table.” Id. at 86. If Burno’s statement was not made in furtherance of plea discussions,
there would be no reason for ADA Dantos to place death “back on the table.” For death
to be placed “back on the table” there had to be a prior agreement to take it off. Viewing
the totality of the circumstances, we conclude that Burno exhibited a subjective
[J-63-2016] - 26
expectation to negotiate a plea, and that his expectation was objectively reasonable.
Burno’s confession is the type of statement protected by Pa.R.E. 410(a)(4).
As this Court stressed in Vandivner, “of primary importance … is whether the
Commonwealth showed an interest in participating in such discussions.” Vandivner,
962 A.2d at 1181. Plea negotiations are “discussions in advance of the time for
pleading with a view to an agreement whereby the defendant will enter a plea in the
hope of receiving certain charge or sentence concessions.” Robertson, 582 F.2d at
1365 (emphasis added). “Plea negotiations contemplate a bargaining process, a
‘mutuality of advantage,’ and a mutuality of disadvantage. That is, the government and
the accused both seek a concession for a concession, a quid pro quo. The accused
contemplates entering a plea to obtain a concession from the government. The
government contemplates making some concession to obtain the accused's plea.” Id.
at 1366 (citations omitted).
When ADA Dantos stated to Burno, “Let’s start from here” and “Give us the truth,
testify and we will see where we are,” she communicated to Burno that the
Commonwealth was poised and willing to respond to Burno’s cooperation with a
concession of its own. It is clear that the Commonwealth elicited the confession that
was utilized against Burno in the give-and-take of the negotiating room. Although ADA
Dantos took the original deal off the table, she then encouraged Burno to confess and
testify against Bethea, and in turn indicated that she was willing to participate in plea
discussions. The promise made by ADA Dantos, vague though it was, prompted Burno
to confess and ultimately resulted in a deal. There is no question that the
Commonwealth was participating in plea discussions with Burno at the time that he
confessed. This is the relevant inquiry under Vandivner. The fact that the terms of the
[J-63-2016] - 27
plea deal were not more concrete does not mean that the parties were not engaged in
plea discussions.
Consequently, the trial court erred in concluding that negotiations were ended
merely because the original deal had collapsed. The record clearly supports the
conclusion that plea discussions remained ongoing at the time that Burno gave his
second confession. Burno’s confession should not have been admitted under Pa.R.E.
410(a)(4).
Nevertheless, the error was harmless. “Harmless error exists if the state proves
either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or
(2) the erroneously admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence of guilt was so overwhelming and
the prejudicial effect of the error was so insignificant by comparison that the error could
not have contributed to the verdict.” Commonwealth v. Simmons, 662 A.2d 621, 633
(Pa. 1995)
The second ground for harmless error applies here. In Commonwealth v. Story,
383 A.2d 155 (Pa. 1978), this Court explained that under the “cumulative evidence”
ground, three requirements must be met before a court may conclude that improperly
admitted evidence was merely cumulative of other evidence presented:
(1) There should be substantial similarity, in type of evidence and
incriminating factual details, between the tainted evidence and the
untainted evidence of which it is ‘cumulative.’ (2) The untainted evidence
should be indisputable, either because the facts are in some way
affirmatively accepted by the defendant or for other reasons. (3) Care
should be taken that the ‘untainted’ evidence in no way derives from the
tainted evidence.
Id. at 165.
[J-63-2016] - 28
Applying these requirements, a full review of this record shows that the tainted
evidence (Burno’s statements during plea negotiations) was substantially similar to the
untainted evidence (his incriminating admissions during phone calls from jail). During
his plea statement, Burno explained in detail how he and the co-defendant went to the
victims’ house on the night of the murders. Burno admitted that he shot one of the
victims at least three times with a 9mm handgun. He also admitted to shooting the
other victim. Commonwealth Trial Exhibit Nos. 76, 84-104.
At trial, the jury heard tape recordings of Burno’s telephone calls made from the
Lehigh County jail to his wife, Kimberly Burno, and to James Prince Alford. Notes of
Testimomy (“N.T.”), 3/1/07, at 478-84. During those conversations, Burno essentially
repeated the same incriminating factual details he made during his plea statement.
Specifically, he admitted to shooting one of the victims multiple times. He stated that he
did not remember “how many times he shot the guy,” though he believed it was “only . .
. three times.” He admitted that he had a 9mm handgun, and that he “deaded some
people.” He also acknowledged that he had already “copped to” or confessed to the
murders. He placed himself at the scene of the murders, and talked about the guns he
dismantled and disposed of after the crimes. He also attempted during those
conversations to have his wife get in touch with his co-defendant Bethea to get their
stories straight. He also acknowledged during one phone call that he knew the phone
calls were being taped, but that he did not care. Commonwealth Trial Exhibit Nos. 124-
130.
Further, the untainted evidence (Burno’s incriminating admissions during phone
calls from jail) was indisputable. There was no question at trial that he was the person
on the tapes. The tapes were admitted into evidence without objection. N.T., 3/1/07, at
478-84. Finally, the untainted evidence in no way derived from the tainted evidence.
[J-63-2016] - 29
Because Burno’s plea statement was merely cumulative of the same incriminating
statements that he made during the phone calls from jail, admission of his plea
statement was harmless error.
Burno next maintains that the latter portion of his September 26, 2003 confession
was fruit of the poisonous tree. On that day, Burno spoke with Attorney Clark, who had
given ADA Dantos and the detectives permission to commence re-interrogating Burno.
It was during this confession that Burno for the first time admitted to participating in the
murders. Burno told the police that the plan was for him to trick Juarbe into admitting
him to the apartment, whereupon Burno would return briefly to his car. Then, he and
Bethea would re-enter the apartment and rob Juarbe. Burno recounted that Juarbe
thwarted this plan when he met them with a shotgun, which led to a struggle that
resulted in Bethea getting shot in the leg. Burno admitted to shooting Juarbe and then
struggling with Rosado, eventually shooting him as well. Attorney Clark was not present
for this portion of Burno’s statement.
After Attorney Clark arrived, however, Burno gave a second statement. During
this discussion, the police often referenced statements that Burno made in the first
statement, and noted that some details were slightly different. Burno maintains that the
second portion of his statement, in effect, was a mere continuation of the first statement.
The trial court suppressed the first portion of the statement because Attorney Clark was
not present, but rejected Burno’s fruit of the poisonous tree argument regarding the
second portion of the statement.
The trial court’s initial ruling that the first portion of the confession was
inadmissible is not at issue in this appeal. Thus, we must assume for purposes of our
analysis that the first portion was obtained by the police in violation of the Constitution.
[J-63-2016] - 30
The only question we consider is whether the second portion was unconstitutionally
tainted by the first portion.
[Not all evidence] is “fruit of the poisonous tree” simply because it would
not have come to light but for the illegal actions of the police. Rather, the
more apt question in such a case is whether, granting establishment of the
primary illegality, the evidence to which instant objection is made has
been come at [sic] by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint.
Wong Sun v. United States, 371 U.S. 471, 488 (1963) (citation and quotation marks
omitted). The relevant question is whether the confession “was sufficiently an act of
free will to purge the primary taint of the unlawful confession.” Id. at 486. “[A]
defendant’s exercise of his own free will in confessing will render his confession
admissible, despite the fact that the confession would not have been obtained but for
the [initial illegal act].” Commonwealth v. Shaw, 431 A.2d 897, 900 (Pa. 1981).
In Commonwealth v. Green, 581 A.2d 544 (Pa. 1990), we set forth some relevant
factors for courts to consider when determining whether an original taint has been
sufficiently purged, including: “(1) whether Miranda warnings were given; (2) the
‘temporal proximity’ of the illegal police conduct to the confession; (3) the presence of
intervening circumstances or events; (4) the ‘purpose and flagrancy of the official
misconduct.’” Id. at 550-51 (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
Moreover, where confessions occur in brief succession, with the first one being illegally
obtained, the prosecution must demonstrate facts “sufficient to insulate the [second]
statement from the effect of all that went before.” Clewis v. Texas, 386 U.S. 707, 710
(1967).
The initial illegality found by the trial court was Attorney Clark’s absence, even
though Attorney Clark gave permission for the interrogation. Otherwise, Burno had
been advised of his Miranda warnings, and, by all other indications, was acting of his
[J-63-2016] - 31
own free will and was in no way coerced or compelled to act. Attorney Clark’s
appearance, and his consent to continue with the interrogation, very clearly suffices as
an intervening event that removed the only taint found by the trial court and broke the
chain of events so as to insulate the second statement from the first. Moreover, we
note that, upon consideration of the last factor from Green, the police misconduct in this
case does not appear to be purposeful or flagrant. Attorney Clark advised the
detectives that they could interrogate Burno, and that they could begin doing so without
Attorney Clark being present for the start of the interrogation.
That some substantive areas of the interview segments overlapped, and that the
detectives at times referenced the earlier investigation, does not alter the fact that the
taint was removed and that the confession was given as an exercise of Burno’s own
free will. See Shaw, supra. Burno’s present protestations to the contrary
notwithstanding, there is no evidence in the transcript of the September 26, 2003
confessions to suggest that the police coerced him into providing the second statement.
Nor did the authorities force Burno to make admissions in the second statement only
because he had made similar statements during the first statement. Moreover, even if
there was some overlap between the two statements, Attorney Clark was present for
the second statement to ensure that such statement was voluntary. The lawyer’s
presence purged any taint that resulted from the first statement, and refutes Burno’s
present claim that the second statement was fruit of the poisonous tree and should be
suppressed.
In his final claim pertaining to his confessions, Burno asserts broadly that the
totality of the circumstances rendered his September 26, 2003 confession involuntary.
Those circumstances include Burno’s prior two arguments regarding his belief that he
confessed in the course of plea negotiations and that the confession used by the
[J-63-2016] - 32
Commonwealth was compelled by the prior, unconstitutional confession. Burno asserts
as well that the confession was an involuntary product of coercion by ADA Dantos when
she spoke to him after he had failed the polygraph test, knowing that he was
represented by counsel and that counsel was not present. Finally, Burno argues that
the polygraph examiner contributed to the overall coercion by instructing Burno that
telling the truth generally is the best way to help oneself out.
Burno’s claim fails. The governing consideration regarding the admissibility of a
confession is voluntariness, which we determine based upon the totality of the
circumstances. Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998). “The
question of voluntariness is not whether the defendant would have confessed without
interrogation, but whether the interrogation was so manipulative or coercive that it
deprived the defendant of his ability to make a free and unconstrained decision to
confess.” Id.. “The Commonwealth has the burden of proving by a preponderance of
the evidence that the defendant confessed voluntarily.” Id. Some of the factors that we
use to determine the voluntariness of a confession include: “the duration and means of
interrogation; the defendant’s physical and psychological state; the conditions attendant
to the detention; the attitude exhibited by the police during the interrogation; and any
other factors which may serve to drain one’s powers of resistance to suggestion and
coercion.” Perez, 845 A.2d at 787 (quoting Commonwealth v. DeJesus, 787 A.2d 394,
403 (Pa. 2001)).
In this case, the totality of the circumstances demonstrates that Burno’s actions
were voluntary at every juncture, including the point at which he provided his ultimate
confession. Burno had the assistance of counsel at every stage of the process.
Attorney Clark was present to negotiate the initial deal with ADA Dantos that would
have taken the death penalty off the table for Burno. Attorney Clark advised Burno to
[J-63-2016] - 33
provide a truthful statement, and was consulted before and after Burno took (and failed)
the polygraph examination. Following some delay, ADA Dantos was able to reach
Attorney Clark after Burno failed the test, whereupon Attorney Clark advised Burno to
speak with the police and gave permission to begin the interrogation without him.
Attorney Clark eventually arrived, spoke with Burno, and sat with Burno during the final
confession. Throughout the process, the detectives provided Burno with Miranda
warnings on three separate occasions. There is no indication that Burno failed to
understand his rights, or that he was at any time unaware of his right to insist upon the
presence of his attorney or of his right to remain silent. The record contains no
indication that Burno was forced, or compelled in any way, to speak with the police.
None of the factors set forth in Perez were present here in a manner suggesting
that Burno was coerced into confessing. Burno acted of his own free will and/or on the
advice of counsel. None of the interrogations was extensive, nor were they performed
in a way that debilitated or weakened Burno’s psychological functions. There was no
evidence that the police were threatening, abusive, or unduly coercive. This clearly was
a collaborative effort by Attorney Clark and Burno to pursue a course of action that
could result in a benefit to Burno. None of it was forced by ADA Dantos or the police
officers.
The fact that ADA Dantos spoke with Burno without Attorney Clark’s presence
did not render the confession involuntary. ADA Dantos spoke with Burno after he
requested to speak with Attorney Clark once Burno failed the polygraph test. ADA
Dantos sought only to inform Burno that she was trying to contact Attorney Clark and
that she was unable to reach him at that moment. Burno started crying and professing
his regret for not telling the truth. It was Burno’s conduct that spawned any discussions
regarding the case. There is no evidence to suggest that ADA Dantos met with Burno
[J-63-2016] - 34
in an effort to extract a confession, or that she maneuvered to speak to Burno without
Attorney Clark’s permission or knowledge. More importantly, there is nothing about this
interaction to suggest that the confession that Burno provided the police later was
involuntary as a result of ADA Dantos’ statements. She merely told him that he should
tell the truth and that, if he did, she and the detectives would reassess the future of the
case.
Similarly, after Burno had failed the polygraph test, he bemoaned to the
polygraph examiner that his failure meant that no one could save him from the
punishment he was facing. The examiner responded that telling the truth generally is
one way in which a person could help himself. This lone statement hardly can be said
to be coercive, let alone so unduly coercive that Burno’s confession, which he made
following Miranda warnings and after speaking with counsel multiple times, must be
considered involuntary.
For these reasons, the trial court’s rejection of Burno’s numerous arguments, and
its conclusion that Burno’s confession constitutionally was admissible were not legal
error.
In his next argument, Burno contends that the Commonwealth failed to prove
beyond a reasonable doubt that either Juarbe or Rosado were lives-in-being before they
were killed on the night in question. Burno maintains that, in order to prove a person
guilty of first-degree murder, the Commonwealth must demonstrate that a human being
was killed, which necessarily requires proof that the victim was alive before the charged
conduct occurred. See Brief for Burno at 51 (citing Commonwealth v. Bracey, 662 A.2d
1062, 1072 n.13 (Pa. 1995)). Burno asserts that the Commonwealth offered no
evidence to prove this essential element. “No witness was called to testify that he or
[J-63-2016] - 35
she saw either decedent alive at some point before the incident.” Id. Hence, contends
Burno, the evidence was insufficient as a matter of law to sustain the conviction.5
As with any sufficiency challenge, we must consider “whether the evidence
introduced at trial and all reasonable inferences derived from that evidence, viewed in
the light most favorable to the Commonwealth as verdict-winner, was sufficient to
establish beyond a reasonable doubt all elements of first-degree murder.”
Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013). As noted earlier, we already
reviewed the sufficiency of the evidence generally with regard to Burno’s first-degree
murder conviction. Presently, Burno challenges only whether the Commonwealth
proved that Rosado and Juarbe were lives-in-being at the time of the crimes.
In order to convict a defendant of first-degree murder, the Commonwealth must
prove beyond a reasonable doubt that a human being was killed unlawfully, that the
defendant was responsible for the killing, and that the defendant acted with malice and
with the specific intent to kill. See 18 Pa.C.S. § 2502(a); Commonwealth v. Johnson, 42
A.3d 1017, 1025 (Pa. 2012). Although the term life-in-being is rarely, if ever, listed as a
specific point of proof, or as an element of murder, it is axiomatic that the victim must be
alive before being killed unlawfully. The fault in Burno’s argument is that he appears to
believe that the only manner of proving this point is through a specific witness who
takes the stand to testify to seeing the victim(s) alive during the time period immediately
preceding the murder. This is simply incorrect. It is hornbook law that the
Commonwealth may prove its case using wholly circumstantial evidence, and that
circumstantial evidence can itself be sufficient to prove any or every element of the
5
The Commonwealth characterizes Burno’s argument regarding the adequacy of
its proof pertaining to Juarbe and Rosado being lives-in-being as “utter nonsense.”
Brief for the Commonwealth at 42.
[J-63-2016] - 36
crime. Commonwealth v. Perez, 93 A.3d 829, 841 (Pa. 2014). The Commonwealth
provided ample circumstantial evidence to prove that Juarbe and Rosado were living
human beings before being murdered by Bethea and Burno.
Ms. Moyer testified to hearing loud voices and a sustained struggle emanating
from Juarbe’s apartment. She then heard numerous gunshots. When the police
arrived, blood was splattered throughout the residence, and also formed a trail from the
door of the residence to the spot where Burno’s car was parked. There were shell
casings from different guns strewn throughout the residence. The forensic testimony
established that the victims were killed by gunshot wounds, and that marks on the
bodies evidenced signs of struggle. Dr. Funke testified that one of Juarbe’s gunshot
wounds occurred while he was in the process of dying. Moreover, Bethea exited the
residence with a gunshot wound to his leg that necessarily was caused by someone
who was living at the time the wound was inflicted.
This circumstantial evidence, and the reasonable inferences drawn therefrom,
clearly established that Juarbe and Rosado, who argued and fought with their
assailants, and ultimately engaged in a shootout with them, were lives-in-being when
Bethea and Burno entered the residence. To construe the evidence otherwise would
defy common sense and rationality, and would require us to ignore our command to
view the evidence in the Commonwealth’s favor. There is no merit to Burno’s
argument.
In his sixth argument, Burno challenges the trial court’s denial of his motion to
dismiss the charges against him pursuant to Rule 600 of Pennsylvania Rules of
Criminal Procedure. Burno notes that 1,248 days passed between the filing of the
criminal complaint and his jury trial. Burno focuses his argument upon the approximate
one-year time period that it took for the Commonwealth to litigate its appeal of the trial
[J-63-2016] - 37
court’s decision to remove ADA Dantos from the lead prosecutor role. Burno maintains
that the Commonwealth failed to establish that the Superior Court had jurisdiction over
the appeal. Burno argues that the Commonwealth neither demonstrated that the order
in question was an appealable collateral order pursuant to Pa.R.A.P. 313 nor that the
order terminated or substantially handicapped its prosecution pursuant to Pa.R.A.P.
311(d). Burno points out that the Commonwealth entirely failed to certify the order for
purposes of Rule 311(d). Regarding Rule 313, Burno challenges the Commonwealth’s
ability to satisfy the merits of each of the three prongs necessary to characterize an
order as collateral for jurisdictional purposes.6 The crux of Burno’s argument is that,
because the Commonwealth failed to establish the Superior Court’s jurisdiction, the
Commonwealth was unauthorized to file the appeal. As such, Burno urges, the
Commonwealth did not act with due diligence, the time that it took to litigate the appeal
should be held against the Commonwealth, and the charges against him should have
been dismissed.
The Commonwealth agrees with Burno that the only contested time during the
pre-trial proceedings is the period during which the Commonwealth sought, and
litigated, its appeal. However, the Commonwealth maintains that the appeal was
premised upon the Commonwealth’s arguments, made in the notice of appeal and in its
brief to the Superior Court, that the order in question was a collateral order. The
Commonwealth asserts that the appeal was filed in good faith and was accepted and
ruled upon by the Superior Court. As such, even though the Superior Court did not
address whether the Commonwealth had satisfied each element of the collateral order
6
“A collateral order is an order separable from and collateral to the main cause of
action where the right involved is too important to be denied review and the question
presented is such that if review is postponed until final judgment in the case, the claim
will be irreparably lost.” Pa.R.A.P. 313(b).
[J-63-2016] - 38
doctrine, the Commonwealth maintains that the court nonetheless impliedly granted
permission under that doctrine by disposing of the case on the merits. Consequently,
according to the Commonwealth, the trial court did not abuse its discretion in denying
Burno’s Rule 600 motion.
We review a trial court’s denial of a Rule 600 motion for an abuse of discretion.
Commonwealth v. Solano, 906 A.2d 1180, 1186 (Pa. 2006). “An abuse of discretion is
not merely an error of judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will . . . discretion is abused.” Commonwealth v. Wright,
961 A.2d 119, 142 (Pa. 2008) (citations omitted). “Our scope of review is limited to the
record evidence from the speedy trial hearing and the findings of the lower court,
reviewed in the light most favorable to the prevailing party.” Commonwealth v.
Selenski, 994 A.2d 1083, 1088 (Pa. 2010) (citing Solano, 906 A.2d at 1186).
“Rule 600 establishes a careful matrix protecting a defendant’s rights to be free
from prolonged pretrial incarceration and to a speedy trial, while maintaining the
Commonwealth’s ability to seek confinement of dangerous individuals and those posing
a risk of flight, and to bring its cases in an orderly fashion.” Commonwealth v. Dixon,
907 A.2d 468, 473 (Pa. 2006) (citing Commonwealth v. Hill, 736 A.2d 578, 580 (Pa.
1999)). Generally,
Rule 600 serves to protect a defendant’s speedy trial rights, as well as
society’s right to effective prosecution in criminal cases. Dixon, 907 A.2d
at 473. To balance these rights, Rule 600(G) requires the court to
consider whether the Commonwealth exercised due diligence, and
whether the circumstances occasioning the delay of trial were beyond the
Commonwealth’s control. See Pa.R.Crim.P. 600(G). Further, the rule
states, “If, at any time, it is determined that the Commonwealth did not
exercise due diligence, the court shall dismiss the charges and discharge
the defendant.” Id.
[J-63-2016] - 39
Selenski, 994 A.2d at 1088 (citation modified).
A capital defendant must be brought to trial within 365 days of the filing of a
complaint against him. Hill, 736 A.2d at 584. However, as a general rule, delays in
bringing a capital defendant to trial that result from appellate resolution of pretrial motion
rulings constitutes excusable time. See Commonwealth v. Boczkowski, 846 A.2d 75, 83
n.7 (Pa. 2004); Commonwealth v. DeBlase, 665 A.2d 427, 431-32 (Pa. 1995);
Commonwealth v. Marconi, 567 A.2d 628, 630 (Pa. 1989); Jones v. Commonwealth,
434 A.2d 1197, 1200-01 (Pa. 1981). Such time is not calculated against the
Commonwealth in ascertaining whether Rule 600 was satisfied, so long as the
Commonwealth acted with due diligence at all relevant times. The Commonwealth
bears the burden of proving due diligence by a preponderance of the evidence. Hill,
736 A.2d at 586. “Due diligence is fact-specific, to be determined case-by-case; it does
not require perfect vigilance and punctilious care, but merely a showing that the
Commonwealth has put forth a reasonable effort.” Selenski, 994 A.2d at 1089 (citing
Hill, 736 A.2d at 588).
In this case, it is evident that the Commonwealth acted with due diligence. The
Commonwealth received an unfavorable ruling on a motion that was filed by Burno.
The Commonwealth timely filed a motion for reconsideration of that order, and then a
timely notice of appeal from the denial of that motion. In the notice of appeal, the
Commonwealth set forth each of the elements of the collateral order doctrine, albeit
without actually citing the rule itself. The Commonwealth plainly indicated in its notice of
appeal that it was appealing the order as a collateral order. The Superior Court did not
note the basis upon which it found jurisdiction. The Superior Court then ruled in the
Commonwealth’s favor.
[J-63-2016] - 40
From the record and the arguments, we discern no lack of due diligence on the
Commonwealth’s part. At all times, the Commonwealth pursued relief from an
unfavorable ruling, and without unnecessary delay. Burno does not assert otherwise.
Instead, Burno focuses upon the merits of the Superior Court’s unclear jurisdictional
determination. However, even assuming, arguendo, that Burno is correct in asserting
that the court lacked jurisdiction (a claim upon which we express no opinion), that does
not mean, ipso facto, that the Commonwealth did not act with due diligence. The
Commonwealth believed that the Superior Court had jurisdiction, and asserted the basis
for that jurisdiction in its notice of appeal. That the Commonwealth and the Superior
Court may have been wrong, or that the Commonwealth’s showing on the merits of the
collateral order doctrine subsequently could be proven inadequate, does not equate to a
lack of due diligence.
In sum, the time that it took to litigate the Commonwealth’s appeal from the trial
court’s ruling constitutes excusable time, and we observe nothing to suggest that the
Commonwealth did not act with due diligence. Hence, the trial court did not abuse its
discretion in denying Burno’s Rule 600 motion.
In his final argument, Burno challenges the trial court’s decision to permit the
Commonwealth to introduce Burno’s prior conviction for criminal conspiracy to commit
burglary in support of the aggravating factor that Burno had a significant history of prior
felony convictions involving the use or threat of violence. See 42 Pa.C.S. § 9711(d)(9).
According to Burno, the facts of the prior conviction demonstrated that no person was
present at the time of the entry into the structure that resulted in the conviction, and,
therefore, there was no risk of personal violence to anyone. As such, the conviction
should not have been admitted in support of this aggravating factor.
[J-63-2016] - 41
Additionally, Burno points out that conspiracy, which was the crime for which he
was convicted, is not a crime of violence inasmuch as it merely contemplates future
criminal objects. The act that society seeks to punish is the nefarious agreement,
which, by its very nature, cannot be a violent act, unless violence is used during the
formation of the agreement itself. There is no evidence that such violence occurred.
Despite the fact that the conspiracy charge did not itself recite a violent crime, the trial
court nonetheless allowed the Commonwealth to submit the crime to the jury for
consideration, in violation of the Eighth Amendment to the United States Constitution as
well as the general proscription against allowing non-statutory aggravation evidence.
See Brief for Burno at 64 (citing, inter alia, Commonwealth v. Diggs, 949 A.2d 873, 883-
84 (Pa. 2008) (explaining that evidence was inadmissible that was irrelevant to any of
the statutory aggravating circumstances that were advanced by the Commonwealth)).
Burno emphasizes that juries in Pennsylvania death penalty cases must weigh
the aggravating circumstances against the mitigating circumstances before coming to a
final decision. He maintains that, even though the jury did not find the (d)(9)
aggravating circumstance beyond a reasonable doubt, it is nonetheless impossible to
know whether the jurors relied upon that prior conviction in their deliberations, rendering
the admission of that evidence sufficiently prejudicial so as to warrant a new penalty
phase. Even if the evidence tainted only a single juror, Burno argues, prejudice
resulted.
The Commonwealth responds first by highlighting the rule that burglary generally
is considered to be a crime of violence. See Brief for the Commonwealth at 51-52
(citing, inter alia, Commonwealth v. Spotz, 47 A.3d 63, 104 (Pa. 2012)). Moreover, the
Commonwealth notes that this Court previously has held that a jury may consider a
conviction for conspiracy to commit another crime for purposes of the (d)(9) aggravator
[J-63-2016] - 42
in Commonwealth v. Rice, 795 A.2d 340, 349-50 (Pa. 2002) (plurality). Nonetheless,
even if the evidence was inadmissible, the Commonwealth argues, its admission was
harmless because the jury did not find the (d)(9) aggravator before it weighed the
factors and reached its ultimate decision to recommend a death sentence.
The Commonwealth is correct that this Court previously has permitted the
Commonwealth to introduce conspiracy convictions in support of the (d)(9) aggravator.
For instance, in Commonwealth v. Reid, 626 A.2d 118, 122 (Pa. 1993), we summarily
held that a conviction for conspiracy to commit murder was admissible for purposes of
proving the (d)(9) aggravator. In doing so, however, we did not elaborate in any
meaningful detail as to how or why conspiracy, which in effect is only an agreement,
involves the use or threat of violence to another person. Of course, the object crime,
murder in that instance, is a crime of violence. We did not explain how conspiracy
nonetheless satisfied the language in the (d)(9) aggravator. We merely held that it did.
Similarly, in Rice, as the Commonwealth highlights, this Court upheld the
admission of a conspiracy conviction for (d)(9) purposes.7 Rice had challenged the trial
court’s admission of his prior conviction for conspiracy to commit robbery, arguing, as
Burno does here, that conspiracy amounts only to a non-violent agreement with a co-
conspirator and not to a violent crime. Rice, 795 A.2d at 349-50. Citing Reid, we held
that the claim was “completely without merit.” Id. at 350.
In Reid and Rice, we did not analyze in any substantive way the argument that
conspiracy, which constitutes only a criminal agreement, cannot be considered a crime
7
The decision in Rice was a plurality because members of the Court could not
reach a majority consensus on an issue pertaining to penalty phase jury instructions
regarding victim impact evidence. No justices took issue with the lead opinion’s
resolution of the challenge to the admissibility of the conspiracy conviction for the (d)(9)
aggravator.
[J-63-2016] - 43
of violence. Nor did we explain why the object crime of the conspiracy, if that object
crime is a crime of violence, suffices to render the conspiracy itself admissible for
purposes of the (d)(9) aggravating circumstance. Nonetheless, those cases remain
binding precedent. We will not reconsider their wisdom, because, even if admission of
Burno’s conspiracy conviction was error, that error unquestionably would be harmless.
As noted above, Burno rejects the application of the harmless error doctrine in
this case because, in his view, the fact that the jury received the evidence was sufficient
to render the entire deliberative process infirm. We disagree. First, it is well-settled in
Pennsylvania that errors with regard to evidence supporting the unpursued or unfound
aggravating circumstances are subject to the harmless error standard. See generally
Diggs, 949 A.2d at 884-85. Harmless error exists where:
(1) the error did not prejudice the defendant or the prejudice was de
minimus; (2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that the error could
not have contributed to the verdict.
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (quoting Commonwealth
v. Robinson, 721 A.2d 344, 350 (Pa. 1999)). Moreover,
[a] death sentence will only be reversed if the jury relied on an
unsupported and, therefore, improper aggravating circumstance in
rendering its penalty phase verdict. Commonwealth v. Williams, 640 A.2d
1251, 1263 (Pa. 1994). However, reversal of a defendant’s sentence is
not warranted by submitting an aggravating circumstance to the jury
if the jury does not find beyond a reasonable doubt the existence of
that improper aggravating circumstance in rendering its verdict of
death since the error is harmless.
Commonwealth v. Jones, 668 A.2d 491, 519 (Pa. 1995) (citation modified; emphasis
added); see also Commonwealth v. Christy, 515 A.2d 832, 841 (Pa. 1986) (“The jury, to
[J-63-2016] - 44
its credit, however, did not find this aggravating circumstance. Therefore, the error
committed by the trial court in submitting the evidence of burglary and escape charges
did not prejudice the defendant.”).
The jury in this case did not find the (d)(9) aggravator beyond a reasonable
doubt, and, consequently, did not weigh that factor against the mitigating factor that the
jurors found. Moreover, the fact of that conviction is in no way relevant to the
aggravating circumstance that the jury did find (that Burno had committed another
murder) and could not have prejudiced him in that regard. Thus, even assuming,
arguendo, that Burno is correct that the trial court incorrectly permitted the
Commonwealth to introduce the conspiracy conviction, any such error would be
harmless, as no prejudice befell Burno. See Hutchinson, supra. Burno is not entitled to
relief on this claim.
Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), we must affirm the sentence of
death unless we determine that:
(i) the sentence of death was the product of passion, prejudice or any
other arbitrary factor; or
(ii) the evidence fails to support the finding of at least one aggravating
circumstance specified in subsection (d).
42 Pa.C.S. § 9711(h)(3). We have reviewed the record, and we conclude that the death
sentence was not the product of passion, prejudice or any other arbitrary factor. The
aggravating circumstance was supported by the record and by sufficient evidence.
Burno was charged and convicted with two murders, satisfying the mandates of 42
Pa.C.S. § 9711(d)(11).
[J-63-2016] - 45
Accordingly, for this reason, and for the reasons set forth above, we affirm the
judgment of sentence.
Justices Baer, Todd, Donohue and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion.
[J-63-2016] - 46 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150320/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED MARCH 1, 2017
NO. 03-14-00193-CR
Martin Lopez Montejo, Appellant
v.
The State of Texas, Appellee
APPEAL FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES PEMBERTON AND FIELD
AFFIRMED IN PART; VACATED IN PART -- OPINION BY JUSTICE PEMBERTON
This is an appeal from the judgments of conviction rendered by the district court. Having
reviewed the record and the parties’ arguments, the Court holds that there was reversible error in
the trial court’s judgments of conviction. Therefore, the Court vacates the district court’s
judgments of conviction for the offense of indecency with a child by exposure. The Court
affirms the district court’s judgment of conviction for the offense of aggravated sexual assault of
a child. Because appellant is indigent and unable to pay costs, no adjudication of costs is made. | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143793/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
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Hon. Joe Kunsahik, Comuissioser,Page 2
or value is bet or wagered, or to ESS which any
edmission fee Is cherged."
From 1895 until the year 1935 vprfaa fighting*,
aa that tare is ~omonly uudaratoodia athlQtia ofrolaa,
wss held unlawful.
Sea SULLIVAN v. STATE, 32 Tax. C. R. SO, 22 S. W.
ti%LARD V. KNO5LAUCH (T. C. A.), 206 S.W. 934.
In 1910 ths Legialeturewant ,a~':atap
rurther se8
prohibited the exhibitionor motion glotuwa or pries
right.. Article 612, Vernon'8 AnuotataQ'PenalCoda.
This eneotlnsntraaaa 68 roilowaz
qo person, aseooitation, oorporetion Qp
any agent or aaploya of any paraon, aaaooietlon,
corporationor raoalvar, partnershipor firm
shall glra or present to the publio au axhlbi-
tion or prlsa right6 or glen oont~ata,or or
any obaoens. indaoen~ or immoral piatora of any
characterwhatsoever, by meana of moving plotura
rilm6, bloaoOpca, vitaaoopea,magi0 laatarna or
ot4r devioe or davloea in moving plotore ahowa,
thrtera, or auy other plaoe *Ihataoarer~
>.,.:.:
"Any poreon, or any agent or ampl0ye of
any pwson, a66oolatlon,oorporatlouor raeaiv*r
vlolatlng any yrovlaion at thia art1010 ahall be
finad not leas than one hundred aor mere than
one thousand dollas, or be 1rrpri.md in jell
;F;;; leas than ten nor more than sixty bya,
Each day*6 violstion or any provision
or thls'artiolesbs3.1be a separate offenaarn
In rosa, however, the public polioy 0r the State
as manifested by its legislativeenactments.ohangsd. H.
B. 832, kots 1933, 43rd Leg., p. 843, ch. 241, legalized
with c+tialn limitationafistic combat, wraetling mtohpri,
sparring oontests or exhibitionsfor money. Su-
Labor Statletioe. This enactment wee aubaaquantlyamended
,-,
Hon. Joa Kunschik, Connaisslonar,
Page 3
in 1954, to allaw tha Coamlaaionarto preaoriba rules
and regulationsfor boding and wrestling. Bee A&a 1934,
2nd C.S., p. 68, oh. 2l.
SeOtiOn 16 or the Aot of 1935 axpreasly repealed
all laws and parts or lawa in aonrllot therewith snd m
laay safely 88swna that Artlola@ 610 and 6l.lof the Pa-1
Coda have been auparoadad. Thl6~wa mar not aaauma r0r
Artiolo 612.
We have oarafully axamlnad thai:Aotof 19& ia
amanded by the Aat of 19S4 (Vernon*6Annotatab Penal Coda,
Artiolar 614-1-614-170 inolualva)and have raflad to
find an~rprovision amking it lawful to praaatit au axhl-
bition of pries fight&g to tha pub110 by motion piotura
ribus, Cartafnly there has bean no axprase.repaalof
Artiola 612 0r the Penal Coda. Whila the law rrawna upon,
but somatimaa aanotlona,rapaala by implloation, harr ua
hare nothing upon whish to attaah an irpllomtion. The
Aota or 1033 and 19M fram vmd to -6 66 dlatdi u on
the aubjaot or axhibltingm&Ion piotura fllma orla:f: a*
right8. WE muit oonoludt3 that iktfala 212 or the Penal
Coda stands untouohsd.
ft la, t4rafwe, the oplnien of ~+hl.ir
bpartment
and you are ~rpaetrull~ adrlaad t4t Artiala dla or Var-
non’s Amotatod Penal Cobs has not baon auparoadedbJ Ar-
tic168 614-l-614-170,indualve, or Varmnla Annotate6
Penal Code, and it is a violation of th~:lan t0 praaant
rep publio atiibitinnp~lza right movingpiotura fllaa in
Taxaa theatare~
Yours vary truly
ATTORNEY GBNKRAL OF !fB?SS
/a/
BY
~. Jasea D. Smullan
;.: A8alatant
JDS:ob
APPRCVED AUG 15, 1940 APPROVED OPIRIOX?COMbilXTBE
/a/ Grover 8611ara BY R.R.F. CHAIRbfAN
FIRST ASSIBTAXi' ::
.+-- ATTORNEYGENRRA1, | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143824/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
G-C.-
--
etafS to serve 8s dIrector or, iS 8 am&w of the,
preeont faculty is dos%gnateddiroctor, to t&e
ov6r tlm work lef3iby the dlroator In the dl~s-
Ion of Ill8dutlos~
e(e) That the al.l~nteOS the 6lirdC be
only suah pm-sons a8 fannot aSPor& to fxql0y P
lawyer and imvo oases not subjost to be&q handled
On t3GOtlt+'$U3t?&3traeiIJ;
l(T) That for the Fesent the Clienta CT
the altalc be person0 liv%ng in Trsvb Couuty snd
bs SdYieed or repuent4d plMwnt to p4roonal
Coneultati~m~~ly and thework uf the alMo
shell 35OtQXt4Xhd t0 th0 aOZX%UCtoi liti#&iOa
wt6lde hwl4 C4unty~
m (8) mat upon the a84vo prlmlples tha
alxnia detm the cl&mts tb8t will be mrvell.,
by nz+aansOS sdvlos fro61uuah ~w.wl&t u6 the 0~
manAty Ohast, esployeee of the munty or crity,
tho salvvotlon Arary,the ahurahee, ate., and attur
Snreot~atlun 8s etuaunts or other0 QonnM
tith the 01ini0 a%¶ q#prooalby a WSeidttse of
tho a1zc and a QOmnrdttOOOf'th0 %raP%e ~ulxty
Dar &bsocibbti,4n
;
9 (9) That for the present, the buaiumba t4
be atfended to b7 f&am3 of th4 t1irrio,@la11 ss
tlude czvki litigN.ori ttxaorptlngdltoree bat-
fera, and oth4r 4xo*ptl.onsthat my be mad4 du
. Criadlw%lCaseeand O?f%Ce
experl~noe aarnands
praetiae are InaltIdad~
l(io) That the stpdsnto 8hC may pwtkI.WC
in th:,work,CS tlteclin%C shall bC SaIzioI9~
in
this Law scaool and shall be s4letSi4d
by the
DireCtor f'rcmt&o top half of the Oless ritb
e$ercnCe aea0rdW.g to fbtankbggtaat Qaah msj
rw&a a IZISXI~ of SIX hours a weak to the mm;
*(ii] Thhotm oredlt 80 given in the atudubtt4*
g;ruBosfor this workt
l( w)T h e
Ifo il1
b enu08l”4 t4
tiGn
lmnmeF
*pin the afIb& that #4 rtubnt iu alea owm-
715
l(zs) That the ~siataI quetore of the
i%l~c be set up itlthe baseamrnt<ml bs
@t&lip@ with propor partitionsiandflzrnl&-
-0%
'(x4) That rdequate sloneybe gawid43d in
or&m to enq&Qyl;he cl%reatorepB a 6eOretmy,
and to pmahaee the nwmmary stationary%M
wvU- s
'(us) That the op gob-the ol~o be
sllbndttedto the TreYE eouaty XIerAuuoa1g-
tion for its apgarmal&
w(u)) The It also be atalndtted, ear ap-
prover, to the Preeidant of t&e Ihdva~eity cud
throuefihip,erentudzy to t&Q BOfM6 Of Rs@ME~
“(27) mat the plaa'of operatioli be f&b-
mLttea to the Attorney 6ener&l, by meana of'tlw
PreeiUent, ear opinion 3% to legal%ty,m
The Btste II* llnt (Ii. tr. X0. 74) petbed aJ the
&th r&gislatLlrc at I?26lw lrr se@eim (QemBr81 tan
Texsc, lms, Vol. 1. p. @4 au~meta the Supren*,Caurt
*to prepam Bnrlpropose rule6 and regulation8?or (um-
cip1inil&g,uuspe~ %nd dzlsbrrringattorneys at 1av$
aaoayvlrt,ue oStheA6tbeoorae rseokersaf the St%teBaP
eubjeat to the rules edopted by the Bupre Caurt. Sir
t&8 0X I386 ~OYiaiO?iS Of thb-ht 'all &X=-S- Zt@t V
bar8 or the Btato liar are hereby pWdbit%& from peatia-
ing law in tkis state.*
The,Supwta Court h%e tt.xeralsedthir f'uWtio?z
suxlby Rule 43 proxiulgatec¶
by it, it ie pr0dMi, "IlO
vxjiaiber
f&%11 perudt &lo pro?oesion%lsmviws or bir mmm
to be uae& In %&clof, or te m%W poeefble, the praatiee
aS lea by %ny person not % mkWb9r of the State BW.'
outlAn& by tW re8olutMn abolrequoted. On the COPI
trary,we ere of the op%nlonths
worthwhileaaeraiaeOS a p-overvemt
voiterrity in the wmatim
Bahool 4p Lew of the $tieto
and trw of aandidateeItoralff degree axulmeber-
stlkpin the n3xaslmato Bar.
lieare aa-, of course,tht tho direota
~- of yaw prepuuea6lini8,who pgforawtlle s3utua.laatirl.-
tie* of the Olin3.0,wlllldwelf Im a am5m.r of the fHi8t0
Brr, ana, furtherawe, that amy cwihmt bbuqumbt*
60 far 1111
etuaente 09 tllelmrmm01 are OdnaQrnea,will
be degonetrat1Teinrtruotion8‘ *hioh‘ rtter all, ie a
nroutrrluabloPeatureof proteasiobaU tirainfngfor #a
tm.
very truly y.Jwu
ATTc,R~~EY GENERAL OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129720/ | QBfficeof tip Bttornep Qhmeral
&Mateof IlLexae
DAN MORALES
ATTORNEY
GENERAL December 18.1997
The Honorable James Warren Smith, Jr. Opinion No. DM-461
Frio County Attorney
500 East San Antonio, Box 1 Re: Whether a community supervision and
Pearsall, Texas 78061-3100 corrections department may refuse to supervise a
sixteen-year-old defendant who has been con-
victed of perjury in a criminal proceeding and
placed on conununity supervision by the criminal
court (RQ-990)
Dear Mr. Smith:
You ask whether a community supervision and corrections department may refuse to
supervise a sixteen-year-old defendant who has been convicted of perjury in a criminal proceeding
and placed on community supervision by the criminal court. We conclude that a community
supervision and corrections department must supervise a defendant who has been convicted of
petjury in a criminal pmceeding and placed on community supervision by the crimmal court.,
regardless of the defendant’s age.
As you note, a person between the ages of ten and seventeen, who would generally be within
the jurisdiction of the juvenile court system, may be tried for perjury or aggravated perjury in either
juvenile court’ or in a regnlar criminal proceeding;r thus, juvenile wurts and criminal courts have
concurrent jurisdiction over a person between the ages of ten and seventeen who wnnnits perjury
‘Perjury is punishable as a class A misdemeanor, Penal code Q37.02, and aggravated perjury is punishable
as a third degree felony, id. 0 37.03. l-ilaefore, lxmdua mat constitotes either perjwy or aggravatedperjury constitlltcs
dclinqumt c.mduct for purposes of Family Code section 51.03(+1) (delinquent conduct is conduct that violates penal
law of this state and is punishable by imprisonment OIcontinement in jail).
‘A juvenile court gmomlly has exclusive jurisdiction over cases involving delinquent conduct by a juvenile.
See Fam. Code 5 51.04. Family Code section 5 1.03(c) makes an exception for perjury, however, by pmviding that
nothing in tide 3 of the Family Code prevents criminal proceedings against a child for perjury. Family Code section
51.08, which requires a criminaI court to transfer B case involving a child to the juvenile court, excepts a proceeding
in which a child is charged with perjury. In addition, Penal Code section 8.07(a)(l) provides that a person may not be
pmsecuted for any penal offense that he committed when younger than 15 years of age except, among other offenses,
perjury or aggravated perjury.
The Honorable James Warren Smith, Jr. - Page 2 (DM-461)
or aggravated perjury.” You explain that in your county a sixteen-year-old defendant was tried in
a criminal proweding by a criminal court, wnvicted of perjury under Penal Code section 37.02, and
sentenced to jail. The court suspended the jail sentence and placed the defendant on wmmunity
supervision. You state that the county community supervision and corrections department then
refused to supervise the defendant because the defendant is a juvenile and was not certified as an
adult under Family Code section 54.02.
You suggest that a wmmunity supervision and wrrections department is not authorized to
supervise a sixteen-year-old defendant “because the juvenile would of necessity be exposed to
misdemeanant and felonious probationers when they report monthly to the department.” You rely
on Family Code section 5 1.12, a provision mandating that a child detained in a juvenile detention
facility adjacent to sn adult jail, lockup, or other place of secure wntinement “be separated by sight
and sound Tom adults detained in the same building,‘4 and similar provisions in the Family Code.5
We disagree with the conclusion that a community supervision and wrrections department
is not authorized to supervise a sixteen-year-old defendant who has been convicted of perjury in a
criminal proweding and placed on community supervision by the wurt. First, Family Code section
5 1.12 requires the separation of children and adults in detention facilities; it does not require the
separation of children and adults in any other context. We are not aware of any provision that
precludes a wmmunity supervision and wrrections department tiom supervising a sixteen-year-old
defendant. Indeed, we have found one statute that expressly authorizes a wmmunity supervision
and wrrections department to supervise juveniles, Human Resources Code section 142.003, which
permits a county that does .not have a sufficient number of juvenile probation cases to justify a
juvenile probation department to contract with a wmmunity supervision and wrrections depsrtment
S.ee ROBERT 0. DAWSON,Tam Juvenile Law 35 (4th cd. 1596). As Professor Dawson observes, “bIerjury
and aggravated perjury arc the only crimiml offcmes for which either a juvenile court or a aim&d court has
jurisdiction witboot * prior transferorderfrom the other cow” id. He cxplaios i&c.reason for the unique statue of these
offemcs ss follows:
Article 1, Section 5 of the Texas Ckmstitutionprovides that the oath required of a witness
testifying in my judicial proceeding, civil or crimiml, must be taken “subject to the pains
and pcmlties of perjury.” Them is case law that soggcsts that simx juvenile proceedings arc
mnnimlly civil, not aimins& a witness who would be subject only to juvenile proceedings
for lying under oath might not be a compctcnt witness under that constitutional provision.
SeeSwztiZIim v. St&, 182 S.W.2d 812 (Tcx. Cxim ASP. 1944). ‘llmt, in tom, might mean
that a juvenile could not testify in my court proceedings. Rather thm incur such a
catastrophic risk, the Family Code gives the crimiml coorts concurrent jurisdiction over
those offenses in order to leave no doubt that persons of juvmile cmrt age, if othavise
competent witnesses, may testify under the constih~tioml qualifying provision.
Id. (emphasii in original)
‘Fam. Code 5 51.12(f).
5You also cite Family Code section 52.02.
p. 2584
The Honorable James Warren Smith, Jr. - Page 3 (DM-461)
to provide juvenile probation services.6 This express legislative approval of such an arrangement
undermines any contention that supervision of a sixteen-year-old defendant by a community
supervision and corrections department is somehow contrary to public policy.
Second, as explained above, the laws of this state provide that a child may be prosecuted for
perjury in a criminal proceeding. See supra notes l-3 and accompanying text. Given those
provisions, we believe that a sixteen-year-old defendant who is tried for perjury in a criminal
proceeding is no less an adult in the eyes of the law than a child certified as an adult under Family
Code section 54.02. We are aware of no statute that would preclude a criminal court from placing
a convicted perjurer on community supervision because of his age. Furthermore, once a court has
placed such a defendant on community supervision, we do not believe the wmmunity supervision
and wrrections department has the discretion to refuse to supervise the defendant in defiance of the
court’s order.’
In sum, we do not believe that a wnnnunity supervision and wrrections department is
authorized to refuse to supervise a sixteen-year-old defendant under the cimumstances you describe.
Ifthe community supervision and wrrections department is concerned about exposing the sixteen-
year-old defendant to adult defendants on its premises, the department may take stops to minimize
such contacts, such as providing a separate waiting srea or arrsnging for the defendant to meet with
his community supervision officer at a different location.*
%e Hum. Ros. Cede 5 142.003(a)(l).
Placiag defendants on community supervision is witbin the sole pmvince of the.judiciary. See Code Grim.
FYOC. art 42.12 $5 1 (papose of article 42.12 is to place wholly within state cowls responsibility for determix@ when
imposition of sentence in certaincases shall bc swpmded), 10 (only court in w%ichdefendant tried may grant or revoke
community sqewision). conmrunity sqervision and corrections departments exist, in part, to apewise community
supavision; departments have no authority to ultimately determine whether commodity supervision is appropriate in
a parti& UISC.See genemlly Code Crhn. Pmt. at. 42.12; Gov’t Code ch. 76 (establisbiog community supervision
and corrections departments).
Wedonotaddrcsswhetheraco mmunity sopewision and caxctious dcpartmnt is audmrizd to contract with
a juvenile probation dqartncnt to sopenise a sixteen-year-old defendant who has been convicted of pajury in a
chid pmceediag and placed on commordty supervision, nor do we address whether a crimbnl court is authorized
to order a juvenile probation departmentto supervise such a defendant.
p. 2585
The Honorable James Warren Smith, Jr. - Page 4 (DM-46 1)
SUMMARY
A community supervision and wrrections department must supervise a
sixteen-year-old defendant who has been convicted of perjury in a criminal
proceeding and placed on community supkrvision by a criminal court,
regardless of the defendant’s age.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney Genera1
p. 2586 | 01-03-2023 | 02-18-2017 |
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Mate of ?Eexae’
DAN MORALES November 7,1997
A-rr0RNF.Y
GENERAL
The Honorable Steven D. Wolens Opinion No. DM-455
Chair, State Affairs Committee
Texas House of Representatives Re: Whether the City of Houston may participate
P.O. Box 2910 in the Harris County-Houston Sports Authority
Austin, Texas 78768-2910 (RQ-1015)
Dear Representative Wolens:
You have requested our opinion as to whether the City of Houston may participate in the
Harris County-Houston Sports Authority (the “authority”) created pursuant to House Bill 92. See
Act ofMay 22,1997,75th Leg., RS., ch. 551,1997 Tex. Sess. Law Serv. 1929. Harris County and
the City of Houston established the authority as of September 1, 1997. See Attorney General
Opinions DM-454 (1997), DM-453 (1997).
Section 7 of House Bill 92 provides, in relevant part:
Notwithstanding any other provision of Chapter 334 or 335, Local
Govemment Code, as added by this Act, an election to approve a sports and
community venue project, to approve a method of tinancing for the venue
project, other than the imposition of a sales and use tax or a facility use tax,
or to create a sports and community venue district in a specific county or
municipality is not necessary if, at an election held before the effective date
of this Act, the voters of that county, or of the county in which the
municipality or district is primarily located authorized the establishment and
operation of new or renovated stadimns, arenas, or other facilities for
professional sports teams.
Harris County held the election referenced by section 7 on November 5,1996, and a majority of the
voters approved the following ballot proposition:
Authorizing Harris County to establish and operate new or renovated
stadiums, arenas, and other facilities for professional baseball and football
teams, provided that no county real or personal property taxes are spent to
acquire, construct, or equip these facilities.
Although the overwhelming majority of the geographical area of the City of Houston lies in Harris
County, portions of the city extend into Montgomery and Fort Bend Counties. Because the 1996
election was conducted under the terms of a statute which applied only to counties, City of Houston
The Honorable Steven D. Wolens - Page 2 (DM-455)
voters in Montgomery and Fort Bend Counties did not participate. Consequently, you ask whether
the City of Houston may participate in and operate the Harris County-Houston Sports Authority
“‘without conducting a city-wide referendum” either “prior to” or “subsequent to the effective date
of House Bill 92.”
Harris County and the City of Houston established the authority under newly-enacted chapter
335, Local Government Code, which provides for the creation of a sports and community venue
district composed of “a county and a municipality.” Section 7 authorizes the creation of a venue
district under chapter 335 provided “the voters. . of the county in which the municipality or district
isprimariry located” gave their approval. No municipal election is required. The voters of Harris
County, in which the City of Houston is primarily located approved the ballot proposition. Thus,
under the terms of section 7, the City of Houston may participate in the authority without conducting
a separate election.
You also express concern that City of Houston voters outside of Harris County have been
disentianchised by the failure of section 7 to permit them to vote on the matter of the City of
Houston’s inclusion in the authority. As we noted in Opinion DM-453, neither the state nor federal
constitutions require an election prior to the imposition of the taxes authorized by House Bill 92.
In our opinion, the legislature might reasonably have concluded that an election limited to Harris
’County was sufficient to authorize the inclusion of the City of Houston in the authority.
SUMMARY
The City of Houston is authorized to participate in the Harris County-
Houston Sports Authority (the “authority”) created pursuant to House Bill 92,
Act of May 22,1997,75th Leg., ch. 551,1997 Tex. Sess. Law Serv. 1929.
DA.N MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 2548 | 01-03-2023 | 02-18-2017 |
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Mate of QCexae
August 14,1997
DAN MORALES
,ATTOHSCEY
CEXERAL
The Honorable Garry Mauro Opinion No. DM-448
Commissioner
Texas General Land Office Re: Whether land designated for “agricultural
1700 North Congress Avenue use” is subject to the live-year rollback provisions
Austin, Texas 78701-1495 when the property is acquired by the state and
related questions (RQ-911)
You ask about the recapture or “‘rollback” of taxes on land appraised for property taxation
at its value for agricultural use when the property is acquired by the state and other related questions.
Your questions arise as the General Land Office (the “GLO”) prepares to dispose of the real property
assets of the Superconducting Super Collider project’ since many of the parcels of land acquired for
that project were classitied, at the time of acquisition by the state, as “agricultural” for property tax
purposes.
Article VIII, sections Id and Id-1 of the Texas Constitution, as implemented by the
provisions of the Tax Code, allow for the designation of certain land for agricultural use and
appraisal of such land for property tax purposes on the basis of its productive capacity rather than
its market value. The special valuation has the effect of reducing substantially the property taxes
on land that qualifies.* When the use of the land is changed,3 however, an additional tax is imposed
in an amount equal to the difference between the taxes paid during the past three years or five years
- depending on which particular provisions are applicable4 -- and the taxes that would have been due
during that period had the land been appraised at market value. Tex. Const. art. VIII, $5 l-d, l-d-l;
Tax Code $5 23.46, .55(a). The additional tax imposed is a penalty for taking the land out of
agricultural production and is commonly called a rollback tax because it recaptures the taxes the
owner would have paid had the property been taxed at market value for each of the years covered
by the additional tax. Resolution Trust Corp. v. Tarrant County Appraisal Did., 926 S.W.2d 797,
‘ma was a project for which Congress failed to appropriate funds. See Gov’t Code 5 2301.001(7) (“‘Super
collider facility’means any superconducting super collider high-energy research facility that is or is proposed to be
sponsored, authorized, and funded in part by the United States government.“).
‘STATE
PROPERIY MANUAL
TAXBOARD, FOR THE APPRAISAL OFAGRICULTURAL
LAND1 (1990) [hereinafter
AGMANUAL].
The Honorable Garry Mauro - Page 2 (DM-448)
by the additional tax. Resolution Tmt Corp. v. Tarrant County Appraisal Dirt., 926 S.W.2d 797,
799-805 (Tex. App.-Fort Worth 1996, no writ); AG MANUAL, supra note 2, at 31 (The “Rollback’
Tax).
You first wish to know whether the state’s acquisition of a parcel of land subject to the
special agricultural valuation constitutes a change in use which would trigger the rollback process.
As alluded to above, land is subject to the provisions, including those with respect to additional
taxes, of the constitutional amendment under which the land was designated for agricultural use for
that year. See Tex. Const. art. VIII, $ l-d-l(b); Tax Code 5s 23.52(b), .55(f). Your letter indicates
that the land at issue qualified for agricultural appraisal under article VIII, section 1d-l .5
Article VIII, section l-d-l of the Texas Constitution, adopted in 1978,’ authorizes the
legislature to provide by general law’ for taxation of open-space land devoted to farm or ranch
purposes on the basis of its productive capacity. Section Id-1 also authorizes the legislature to
provide by general law for eligibility limitations and to impose sanctions to further the taxation
policy of the constitutional amendment. In 1979’ the legislature implemented the eligibility
limitations and sanctions which are now found in subchapter D, chapter 23 of the Tax Code. See
Tax Code $5 23.51 - .57. Section 23.55(a) of the Tax Code provides that “[i]f the use of land
that has been appraised as provided by this subchapter changes, an additional tax is imposed on the
land. . . .” Open-space land accorded the special valuation by the terms of the statute becomes
subject to the rollback tax only if the use changes; acquisition alone does not trigger the rollback tax
provisions. Attorney General Opinion JM-949 (1988) at 3. Change of use occurs when the use of
%&ions I-d and l-d-l of article VIII both provide for special appraisals of agriculhtral land and are
implementedby subchaptersC and D of chapter23 of the Tax Code, respectively. Sections l-d and l-d-1, and the Tax
Code provisions adopted thereunder, differ in their scope and procedures. Letter Opinion No. 95-054 (1995) at 1, n.
1; see generally Attorney General Opinion m-949 (1988). Under section l-d of article VIII, tbe rollback tax-is
triggered by diversion of the land to a nonagricultural purpose or a sale of the land. The amount of the rollback tax
imposed under that section equalsthe difference between taxes paid and the amount that would have been payable for
the preceding three years if the land had not been speciallyappraised. Tex. Coast. art. VIII, g Id(f); see also Tax Code
5 23.46(c). Under section Id-l and Tax Code section 23.55, however, Brollback is tiggered only by a change in use
of land designated for agricultural use. Tex. Cm&. art. VIII, 5 l-d-l; Tax Code 5 23.55(a). The Bmountof the tax
imposed by section 23.55(a) equals the difference between the taxes imposed for the preceding five years and the tax
that would have been imposed had the land been ap~raisexiat market value for the period. Tax Code 9 23.55(a). Nearly
all the eligible land in Texas qualifies for the agricultural use designation under section l-d-l of article VIII, and
subchapter D, chapter 23 of the Tax Code. See AGMANUAL, supra note 2, at 2 (95 percent or more of eligible land in
Texas qualifies under section l-d-l).
‘See Act of August 8,1978,65th Leg., 2d C.S., H.J.R. 1,1978 Tex. Gen. Laws 54.54
‘Sections l-d and Id-1 of articleVIII of the Texas Gmstihltion differ in that l-d is self-enactingwhile section
Id-l is a grant of legislativeauthorityand requires legislation to implement its provisions. Attorney General Opinion
M-949 (1988) at 2.
‘See Act of May 28, 1979,66th Leg., R.S., ch. 302,s 1,1979 Tex. Gen. Laws 680,682-83.
p. 2509
The Honorable Garry Mauro - Page 3 (DM-448)
the land changes from an agricultural use to a nonagricultural use. Resolution Trust Corp., 926
S.W.2d at 800. Accordingly, cessation of agricultural use constitutes a change of use which triggets
the rollback tax under section 23.55(a) of the Tax Code. Id. Section 23.55(f) of the Tax Code,
additionally, provides that “[tlhe sanctions provided by [section 23.55(a)] do not apply if the change
of use occurs as a result of a sale for right-of-way or a condemnation.” Neither section Id-1 of the
Texas Constitution nor section 23.55 of the Tax Code provide any exceptions to the rollback
provisions other than those with respect to land acquired by condemnation or purchased for right-of-
way.9
We begin by noting that insofar as property owned by the state is concerned, exemption from
taxation is the general rule and not the exception. Attorney General Opinion O-1861 (1940) at 5.
As explained in Attorney General Opinion 0- 186 1:
The object of taxation is to produce the revenues with which to conduct the
business of the state; it is entirely inconsistent with our theory of government
for the property of the state to be taxed, in order to produce the money to be
expended by the state.
The purpose of taxation being only for the raising of money with which
to carry on the governmental functions, to tax the property of the state would
only amount to taking money out of one pocket and putting it in another.
Id. at 4 (citations omitted). Before state property may be subjected to any form of taxation, the
legislative intent to tax must be demonstrated either by express enactment or clear implication of the
law. Id. at 5.
Article VIII, section l(b) of the Texas Constitution declares all real property and tangible
personal property to be taxable in proportion to its value unless the property is exempt as the
constitution permits or requires. Attorney General Opinion DM-383 (1996) at 2. Article VIII,
section 2 provides in relevant part that “the legislature may, by general laws, exempt from taxation
public property used for public purposes.“‘0 Pursuant to article VIII, section 2, the legislature
enacted the predecessor to section 11 .l l(a) of the Tax Code governing the taxation of public
property. Id. Section 11.1 l(a) of the Tax Code states that “[elxcept as provided by Subsections (b)
%Je understand that the land at issue is approximately 17,000 acres, composed of 2300 separate parcels. It
is unclear whether all the land was acquiredby condemnationor ifany of the.parcels were purchased for right-of-way.
See also in@ note 13.
‘OArticleXI, section 9 of the Texas Constitution,exempts “property of counties, cities and towns, owned and
held only for public purposes, . . and all other properly devoted exclusively to the use and benefit of the public from
taxation. .” This section is self-executing. Since this last clause has not been construed to apply to prc,pertyowned
by the state, we need not examine this provision. See Attorney General Opinions JM-1085 (1989) at 3 n.1, Jh4-1049
(1989) at 2 n.1.
p. 2510
The Honorable Garry Mauro - Page 4 (DM-448)
and (c)‘i of this section, property owned by this state or a political subdivision of this state is exempt
from taxation if the property is used for public purposes.” Thus, as a general matter, by express
legislative enactment, land owned by the state and used for public purposes is not subject to taxation.
Accordingly, state-owned land used for public purposes’* is subject to taxation only if provided for
by another law. See, e.g., Lubbock Indep. Sch. Dist. v. Owens, 217 S.W.2d 186, 189 (Tex. Civ.
App.-Amarillo 1948, writ ref d n.r.e.) (“There is no statute warranting a fixing of a lien against the
land for taxes during the time it was held by the State. The contention that taxes acc~ed against the
property while held by a taxing unit has been rejected by the courts of this state.“).
We proceed to consider whether the agricultural use provisions provide for the taxation of
state property exempted by section 11.l l(a) of the Tax Code. Neither article VIII, section Id-l of
the Texas Constitution nor section 23.55 of the Tax Code expressly provide for imposition of the
rollback tax on state-owned land. See Tex. Const. art. VIII, 4 l-d-l; Tax Code 5 23.55. It is also
true that neither expressly exempts governmentally owned land.‘r We do not believe, however, that
the failure to specifically exempt such property is significant, or can reasonably be read to imply an
intent to tax state-owned property exempted by section 11.11 (a). First, we think it unlikely that
the state, if it chose to tax itself, would do so by other than express enactment. See Owens, 217
S.W.2d at 189 (need statutory authority to fix tax lien against state property); Attorney General
Opinion G-1861 (1940) at 5 (state has never held itself subject to taxation except by special
enactment). Secondly, a specific exemption for state-owned property is unnecessary. A statute is
presumed to have been enacted by the legislature with complete knowledge of and with reference
to the existing law. I4 A&r v. Texas Water Comm ‘n. 790 S.W.2d 299,301 (Tex. 1990); McBride
v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (Tex. 1942). Furthermore, statutory repeal by
implication is not favored by the law. Acker, 790 S.W.2d at 301; Gordon v. Luke, 356 S.W.2d 138,
139 (Tex. 1962); see also Eppenauer v. Eppenauer, 831 S.W.2d 30,34 (Tex. App.--El Paso 1992,
no writ) (repeal by implication will not be declared unless there is no room for doubt and repeal not
favored by law). Thus, a statute covering the same subject dealt with by the preexisting law but not
“Subsection (II)of section 11.I 1 subjectsland owned by the PermanentUniversity Fund to county taxes. Tax
code g 11.1l@). Subsection (c) of section 11.l 1 provides that agricultural land owned by a county for the benefit of
public schools under article VII, section 6, of the Texas Constitution, is taxable for all purposes. Id. $ 11.1I(c).
12Wedo not know the uses made of the parcelsof land at issue. For the purposes of tbis opinion, we assume,
without considering, that the land in question “is used for public purposes,” since the question immediately before us
is whether, as a general matter, state-owned land is subject to the rollback tax.
‘%he exemption provided for change of use resulting from condemnation of land does not nor do we believe
is intended to deal with (or circumscribe)the application of the rollback tax on govemmentally owned land. There.are
clearly a number of nongovernmental entities,such as utility,railroad,or tramway companies, that have condemnation
authority. See generally 32 TEX. JUR.30 EminentDomain $5 63-80 (1981) (special pwpose enterprises, railroad
corporations, interurban electric railways, indushical railroads, tramways, individuals and associations).
‘%he predecessorto section 11.1l(a) of the Tax Code has existed since 1943. See Act of May 5, 1943,48th
Leg., R.S., ch. 316, $ 1, 1943 Tex. Gen. Laws 472,473.
p. 2511
The Honorable Garry Mauro - Page 5 (DM-448)
repealing that law is required to be harmonized with the older law in such a way as to give effect to
both statutes. Acker, 790 S.W.2d at 301; Standard v. Sadler, 383 S.W.2d 391,395 (Tex. 1964);
Co&y v. Daughters ofthe Republic, 156 S.W. 197,201 (Tex. 1913). Section 23.55 can be easily
harmonized with section 11.1 l(a) of the Tax Code by exempting state-owned property used for
public purposes t?om the operation of the rollback tax provisions. Such coordination preserves both
the purpose of section 23.55 to recapture pmperty taxes and penalize taking land out of agricultural
use, and the objective of section 11.1 l(a) to exempt publicly owned property used for public
purposes. See A&r, 790 S.W.2d at 301; Gov’t Code 5 311.021(3) (in enacting statute, it is
presumed that just and reasonable result is intended). We, therefore, conclude that state-owned land
exempt under section 11.1 l(a) of the Tax Code is not subject to the rollback tax provisions of section
23.55 of the Tax Code.‘s
No Texas court appears to have directly addressed the application of the rollback tax
provisions to acquisition and change of use of agricultural land by the state or one of its political
subdivisions.‘6 The State Property Tax Board (the “board”),” the agency charged with enforcing
the agricultural use provisions has, however, adopted the position that governmental acquisition and
subsequent change of use of agricultural land triggers the rollback provisions of section 23.55 of the
Tax Code. Pursuant to the authority granted under section 23.52(d) of the Tax Code,i8 the board
promulgated rules with respect to appraisal of agricultural land under article VIII, section l-d-l.
These rules are contained in the Manual For The Appraisal of Agricultural Land (the “mamml”),
“We note that the legislaturehas passed Senate Bill 728, amending section 23,55(a),effective as of September
1.1997, to expresslyprovide that “If’& the pqxxes of this subsection,the chief appraisermay not consider any period
during which land is owned by the state in d*crmining whether a change in the use of the land has occurred.” See S.B.
728, Act of May 14,1997,7Sth Leg., RS. (eff. Sept. 1, 1997).
‘6Th.eDallasCourt of AppeaLsin Rewlutin Trust Corporation determined that the “rollback tax is a penalty,
and not merely a tax on real estate” that could not be enforced against the Resolution Trust Company (“RTC’), an
instrumentalityof the United States. Resolution Trust Corp., 926 S.W.2dat 805. The court held that assessment of the
rollback tax against the RTC was barred based on sovereign immunity. Id. at 798, 805 (construing 12 USC.
§ 1441=(g)).
‘%n 1991, the State Property Tax Board~was abolished and its duties and functions transferred to the
Comptroller ofPublic Accounts. See Act of August 25, 1991,72d Leg., 2d C.S., ch. 6, $5 24,67,68, 1991 Tex. Gen.
Laws26,31,41.
‘*See id.
p. 2512
The Honorable Garry Mauro - Page 6 (DM-448)
published in 1990.‘9 With respect to the application of the rollback tax provision, the manual states
the following:
Exemptions that apply to ordinary property taxes do not apply to
rollback taxes. Even if the land might be exempt from ordinary taxes in
the new owner’s hands, the rollback tax still becomes due if that owner
takes property out of agricultural use. In most cases, the owner will be
personally liable for the rollback tax, and the tax lien can be enforced
against the property. where the state or a political subdivirion buys the
land and changes the use, the rollback tax will be triggered but the lien
cannot be foreclosed. The tax can’t be collected unless the
governmental entity chooses to pay it. However, the lien against the
land continues and could be enforced against a later buyer.
AG MANUAL, mpra note 2, at 35 (Does the Rollback Tax Appiy to Land Bought and Changed by
an Exempt Organization or Government Entity?) (emphasis added).
Construction of the agricuhural use statutes by the board is entitled to serious consideration,
but only as long as such construction is reasonable and does not contradict the plain language of the
statute. See, e.g., Turrant County Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993);
Stanford v. Butler, 181 S.W.2d 269, 273 (Tex. 1944). A construction that imposes additional
burdens, conditions, or restrictions in excess of or inconsistent with the statutory.provisions will not
be upheld. See Riess v. Williamson County Appraisal Dist., 735 S.W.2d 633,63?-38 (Tex. App.--
Austin 1987, writ denied) (board rule requiring “intensity of use” as part of historical agricultural
use inconsistent with Tax Code 5 23.51). Based on our discussion of section 23.55 above, we
believe the board’s construction is neither reasonable nor consistent with the statute. The board’s
construction imposes the burden of taxation on the state and its political subdivisions when no such
imposition is required by either the express language of, or clear implication in, the statute. See
Riess, 735 S.W.2d at 637-38; Moore, 845 S.W.2d at 823. There appears to be nothing in the
legislative history of article VIII, section la-1 of the Texas Constitution, or of section 23.55 of the
Tax Code, indicating that the rollback tax was intended to apply to governmentally owned land that
was otherwise exempt from property taxes. The board’s construction necessarily repeals by
implication section 11.1 l(a) of the Tax Code without attempting to reconcile section 23.55 with the
older provision even when there is no manifest inconsistency between the two provisions. See
A&r, 790 S.W.2d at 301; Eppenauer, 831 S.W.2d at 34 (presume that legislature desired just and
reasonable result and contemplated effect of statutes which are, on their face, conflicting, and both
will be given effect unless manifestly inconsistent). Moreover, the board’s construction is internally
contradictory in that it posits that the governmentally owned land is subject to the tax because the
IgAllmles and procedures adopted by the board and in effect on September 1, 1991, remained in effect as if
adopted by the Comptroller of Public Accounts until amended, repealed, withdrawn, or otherwise superseded by the
comptxoller. Id. $67(c). The comptroller to date has not amended, repealed, withdrawn, or otherwise superseded the
1990manual. See34T.AC~9.4001.
p. 2513
The Honorable Garry Mauro - Page 7 (DM-448)
section 11.1 l(a) or similar exemption does not apply, but the tax cannot be enforced or collected
from the governmental entity, presumably because of the exemption provided in section 11.1 l(a)
or another provision. *O The result of such construction, that the rollback tax is intended to be
imposed on land owned by, but never collected horn, governmental entities, is neither reasonable
nor feasible of execution. See Gov’t Code $5 311.021(3) (’ m enacting statute, presume just and
reasonable result intended), (4) (presume result feasible of execution intended), .023(5) (in
construing statute, court may consider consequence of particular construction). We, therefore,
decline to adopt the board’s construction of section 23.55, with respect to the application of the
rollback tax provision to state-owned property.
Unrelated to the rollback tax provision, you also ask whether “government ownership
suspend[s] the ‘five out of seven years’ agricultural use requirement for qualification for the special
agricultural valuation’* and “may the appraisal district consider only the last seven years of use in
private ownership when determining whether a parcel is qualified for the special valuation.“2’
Article VIII, section l-d-1 of the constitution authorizes the legislature to provide by general
law for taxation of “open-space land devoted to farm, ranch, or wildlife management purposes on
the basis of its productive capacity” and “eligibility limitations.” Section 23.5 I( 1) defines “‘qualified
open-space land” as
land that is currently devoted principally to agricultural use to the degree
of intensity generally accepted in then area and that has been devoted
principally to agricultural use or to production of timber or forest
products for five of the preceding Seven years or land that is used
principally as an ecological laboratory by a public or private college or
university.
%xis position is apparently based on Attorney General Opiiion M-1085. That opinion dealt with land
acquired by the VeteransLand Board subjectto l#ns created by the previous owner’s failure to pay property tax+ Tbe
opinion concluded that taxes may not be imposed on land comprising the Veteran’s Land Fund based on either article
III, se&on 49-b of the Texas Constitution or section 11.1l(a) of tbe Tax Code. Attorney General Opinion N-1085
(1989) at 5-9. The lien searing the taxes owed by the previous owt~e.r,however, remained in force while tbe property
was owned by tbe Veterans’Land Bard, but the lien was utxnfonxable against tbe state. Id. at 17. Attorney General
Opinion JM-1085 and the cases cited therein for the last conclusion would appear to be inapposite to tbe rollback tax
lien: they involve the usual property taxes from which tbe governmental entity in question is exempt under section
11.1l(a) of the Tax Code or another provision, so no taxes accrued while the property was held by the govemmental
entity; any lien for delinquent taxes that continued when the governmental entity acquired the property but could not
be enforced against the govemmental entity did not attach while the property was held by or because of action of tbe
governmental entity. See e.g., State v. City ofSanAntonio, 209 S.W.2d756,757 (Tex. 1948); Childrew County Y. State,
92 S.W.Zd 1011, 1016 (Tex.1936); Maverick County Water Control & Improvement Dist. No. I v. State, 456 S.W.2d
204 (Tex. Civ. App.-San Antonio 1970, writ ref d); State v. Bean-Medina-Atarcosa Counties Water Improvement Dirt.,
310 S.W.2d 641,643 (Tex. Civ. App.--San Antonio, 1958,writ refd); Owens, 217 S.W.2d at 188.
%iven our conclusion that state-owned land used for public purposes is not subject to tbe rollback tax, we
need not address your remaining questions relating to tbe operation of the rollback tax.
p. 2514
The Honorable Garry Mauro - Page 8 (DM-448)
Tax Code 5 23.5 l(1) (emphasis added). Section 23.51(2) additionally defines at length the activities
that may constitute “agricultural use.”
We assume your questions arise in anticipation of sale of the state-owned land to persons
who may want the land to qualify for agricultural designation. You do not provide any particular
factual context for your questions nor any support for the suggestion that intervening governmental
ownership may be disregarded.= Your questions assume that in all cases the intervening state
ownership resulted in nonagricultural use of the land for the total period of the ownership, which
may not necessarily be the case. Also relevant to analysis of the matter may be the period the use
was changed during the time the land was governmentally owned. In the absence of a specitic
factual context, and development or briefing of the issues, we decline to address this matter.
SUMMARY
State-owned land used for public purposes is not subject to the
rollback tax under section 23.55 of the Tax Code.
DAN’MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Sheela Rai
Assistant Attorney General
**Youalso indicate, however, that the General Land Office does not have a position on this issue. We note
in regard to tbis matter, that Senate.Bill 728, amending Tax Code section 23.55(a), appears to allow the chief appraiser
to disregard state.ownership only for the purposes of that subsection in determiniig if change of use of the land has
occurred. See supra note 15.
p. 2515 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125044/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 11, 2015
Mr. Kim C. Wyatt Opinion No. KP-0020
President and Chairman, Board of Directors
Trinity River Authority of Texas Re: Whether the Open Meetings Act prohibits a
Post Office Box 60 governmental body from holding a meeting at
Arlington, Texas 76004 a location that requires the presentation of
photo identification (RQ-1232-GA)
Dear Mr. Wyatt:
You ask whether the Open Meetings Act prohibits a governmental body from holding open
meetings at a location that requires the presentation of government-issued photo identification for
admittance. 1 You explain that the Trinity River Authority ("the Authority") would like to hold
regular meetings at its Central Regional Wastewater System Plant ("System Plant"). Request
Letter at 1- 2. You further explain that "in response to the terrorist attacks of September 11, 2001,
the Authority began requiring visitors to the [System] Plant to furnish security personnel with
government-issued photo identification." Id. at 1.
The Open Meetings Act (the "Act") requires that "[e]very regular, special, or called
meeting of a governmental body shall be open to the public," with limited exceptions articulated
in the Act. TEX. Gov'T CODE ANN. § 551.002 (West 2012). The Act further defines "open" to
mean "open to the public." Id. § 551.001(5) (West Supp. 2014). No language in the Act, however,
addresses whether an identification requirement at a meeting location would violate the statutory
requirement of openness. 2
1
See Letter from Mr. Kim C. Wyatt, President & Chairman, Bd. of Dirs., Trinity River Auth., to Honorable
Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 20, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-
opinion-rqs ("Request Letter").
2 In contrast, other states' open meetings laws expressly prohibit governmental bodies from requiring
identification in order to attend an open meeting. See, e.g., KY. REV. STAT. ANN. § 61.840 (West, Westlaw through
2015 reg. sess.) ("No person may be required to identify himself in order to attend any" meeting ofa public agency.);
MICH. COMP. LAWS ANN.§ 15.263(4) (West, Westlaw through 2015 reg. sess.) ("A person shall not be required as a
condition of attendance at a meeting of a public body to register or otherwise provide his or her name or other
Mr. Kim C. Wyatt - Page 2 (KP-0020)
Prior opinions from this office have construed the Act to mean that an open meeting must
be "physically accessible to the public." Tex. Att'y Gen. Op. Nos. GA-1079 (2014) at 2, JC-0487
(2002) at 2-3, JC-0053 (1999) at 5. Those opinions conclude that meetings held in New York
City or Mexico would likely violate the Act due to the difficulty that members of the public would
face in attempting to access the meeting locations. No Texas court cases or attorney general
opinions directly address the legality of an identification requirement under the Act, although
Opinion JC-0487 suggests that requiring identification for admittance to a meeting "could have a
chilling effect on the public's willingness to attend." Tex. Att'y Gen. Op. No. JC-0487 (2002) at
4 (quotation marks omitted).
However, a number of facilities that are open to the public now require photo identification
for security purposes. Most federal courthouses require visitors to produce photo identification
before entry. 3 See United States v. Smith, 426 F.3d 567, 572-74 (2d Cir. 2005) (holding that a
photo identification requirement for access to a courthouse did not violate a defendant's right to a
public trial). Adult passengers must provide identification at an airport in order to travel. 4 These
identification requirements are likely intended as a security measure to provide protection to the
general public and not to otherwise limit the public's access to these venues.
A court addressing your question would likely weigh the need for the identification
requirement as a security measure against the public's right of access guaranteed under the Act.
Absent direct language from the Legislature prohibiting identification requirements, a court is
unlikely to conclude as a matter of law that the Act prohibits a governmental body from holding
open meetings at a location that requires the presentation of government-issued photo
identification for admittance. Whether a specific meeting location is accessible to the public for
purposes of the Act is ultimately a question of fact, however, and may depend upon, for example,
the type of governmental body, the nature of the interested public, the available alternative meeting
locations, and the specific procedures used in requiring photo identification. See Tex. Att' y Gen.
Op. Nos. GA-1079 (2014) at 2, JC-0053 (1999) at 6. Such fact-intensive determinations are not
appropriate for the opinion process of this office. Tex. Att'y Gen. Op. No. GA-0756 (2010) at 4.
information ...."); NEB. REV. STAT. ANN.§ 84-1412(3) (West, Westlaw through 2014 reg. sess.) ("No public body
shall require members of the public to identify themselves as a condition for admission to the meeting .... ").
3
See, e.g. , U.S. COURT OF APPEALS FIFTH CIRCUIT, Visitors Guide to the Historic John Minor Wisdom Court
of Appeals Building at 1, http://www.lb5.uscourts.gov/Documents/VisitorsGuide.pdf.
4
U.S. DEPT. OF HOMELAND SECURITY, TRANSP. SEC. ADMIN., Acceptable IDs, http://www.tsa.gov/traveler-
information/acceptable-ids#main-content.
Mr. Kim C. Wyatt - Page 3 (KP-0020)
SUMMARY
A court is unlikely to conclude as a matter of law that the
Open Meetings Act prohibits a governmental body from holding
meetings at a location that requires the presentation of photo
identification for admittance. Whether a specific meeting location
is accessible to the public for purposes of the Act, however, is a
question of fact and is not a determination appropriate for the
attorney general opinion process.
Very truly yours,
IL~AJJ
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125046/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 11, 2015
Raymund A. Paredes, Ph.D. Opinion No. KP-0018
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Institutions eligible to participate in the
Post Office Box 12788 Texas B-On-Time Loan Program under
Austin, Texas 78711 Chapter 56, Subchapter Q of the Education
Code (RQ-1230-GA)
Dear Commissioner Paredes:
You ask for an opinion regarding which institutions are eligible to participate in the Texas
B-On-Time Loan Program. 1 Through chapter 56, subchapter Q of the Education Code, the
Legislature created the Texas B-On-Time Loan Program, the purpose of which is "to provide no-
interest loans to eligible students to enable those students to earn baccalaureate degrees at public
and private or independent institutions of higher education in this state." TEX. Eouc. CODE ANN.
§ 56.452(b) (West Supp. 2014); see id.§§ 56.451-.465 (West 2012 & Supp. 2014). To be eligible
for a Texas B-On-Time Loan, a person must "be enrolled ... in a baccalaureate degree program
at an eligible institution." Id. § 56.455(3) (West Supp. 2014) (emphasis added).
"Eligible institution" is defined for purposes of subchapter Q to include, among others not
relevant here, "a private or independent institution of higher education that offers baccalaureate
degree programs." Id. § 56.451(2)(C). "Private or independent institution of higher education" is
further defined to include "only a private or independent college or university that is ... accredited
by: (i) the Commission on Colleges of the Southern Association of Colleges and Schools; (ii) the
Liaison Committee on Medical Education; or (iii) the American Bar Association." Id.
§§ 56.451(3) (adopting the definition in subsection 61.003(15)(C) of the Education Code);
61.003(15)(C). Thus, a "private or independent institution of higher education" is not an eligible
institution for purposes of the Texas B-On-Time Loan Program unless it is accredited by one of
the three accrediting agencies listed in subsection 61.003(15)(C) of the Education Code.
You explain that although Paul Quinn College is not accredited by one of the three
accrediting agencies listed in subsection 6 l.003(15)(C), it has argued that section 61.222 of the
Education Code "authorizes the Texas Higher Education Coordinating Board to allow the college
to participate in the Texas B-On-Time Loan Program." Request Letter at 2. Section 61.222 is
1
Letter from Raymund A. Paredes, Comm'r of Higher Educ., Tex. Higher Educ. Coordinating Bd., to
Honorable Greg Abbott, Tex. Att'y Gen. at I (Nov. 3, 2014), https://www.texasattomeygeneral.gov/opinion/requests-
for-opinion-rqs ("Request Letter").
Raymund A. Paredes, Ph.D. - Page 2 (KP-0018)
located in Chapter 61, subchapter F of the Education Code, which authorizes and governs the
Tuition Equalization Grants Program. See TEX. EDUC. CODE ANN. §§ 61.221-.230 (West 2012 &
Supp. 2014). Similar to the Texas B-On-Time Loan Program, students may receive a tuition
equalization grant only if they are enrolled in a statutorily-authorized institution. See id. § 61.221
(West 2012) (explaining that a student must be "enrolled in any approved private Texas college or
university"). Prior to the Eighty-third Legislative Session, only those institutions that were
"private or independent institutions of higher education as defined by Section 61.003" could be
approved institutions for purposes of the Tuition Equalization Grants Program. See id. § 61.222(a)
(West Supp. 2014). In 2013, however, the Legislature added subsections 61.222(b) and (c), which
state:
(b) The coordinating board may temporarily approve a private or
independent institution of higher education as defined by Section
61.003 that previously qualified under Subsection (a) but no longer
holds the same accreditation as public institutions of higher
education. To qualify under this subsection, an institution must be:
(1) accredited by an accreditor recognized by the board;
(2) actively working toward the same accreditation as public
institutions of higher education;
(3) participating in the federal financial aid program under 20
U.S.C. Section 1070a; and
(4) a "part B institution" as defined by 20 U.S.C. Section 1061(2)
and listed in 34 C.F.R. Section 608.2.
(c) The coordinating board may grant temporary approval for a
period of two years and may renew the approval once.
Id.§ 61.222(b)-(c); see also Act of May 20, 2013, 83d Leg., R.S., ch. 1341, § 1, 2013 Tex. Gen.
Laws 3555, 3555.
You explain that Paul Quinn College is eligible to participate in the Tuition Equalization
Grants Program because of the amendments to section 61.222. Request Letter at 2. However, the
amendments to section 61.222 relate only to "the temporary approval of an institution to participate
in the tuition equalization grant program." Act of May 20, 2013, 83d Leg., R.S., ch. 1341, 2013
Tex. Gen. Laws 3555, 3555 (preamble); see also TEX. Gov'T CODE ANN. § 311.023(7) (West
2013) (providing that courts may consider the preamble when construing a statute). Had the
Legislature intended to similarly broaden the definition of"eligible institution" for purposes of the
Texas B-On-Time Loan Program, it could have amended chapter 56, subchapter Q of the
Education Code or the definition of "private or independent institution of higher education" in
section 61.003 of the Education Code to do so. When the Legislature employs a phrase in one
section of a statute and excludes it in another, the "term should not be implied where excluded."
Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). Thus, section 61.222
Raymund A. Paredes, Ph.D. - Page 3 (KP-0018)
does not operate to expand the institutions eligible to participate in the Texas B-On-Time Loan
Program.
Raymund A. Paredes, Ph.D. - Page 4 (KP-0018)
SUMMARY
Sections 56.451 and 61.003 of the Education Code require
that a private or independent institution of higher education be
accredited by the Commission on Colleges of the Southern
Association of Colleges and Schools, the Liaison Committee on
Medical Education, or the American Bar Association in order to be
considered an eligible institution for purposes of the Texas B-On-
Time Loan Program.
Very truly yours,
~'?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129766/ | QBfficeof tip iZlttornepQheral
&ate of ?aexae
DAN MORALES
ATTORNEY
GENERAL September 23,1996
Bruce A. Levy, M.D., J.D. Opiion No. DM-415
Executive Director
Texas State Board Re: Whether the practice of acupuncture
of Acupuncture Examiners is within the scope of practice for a
1812 Centre Creek Drive, Suite 300 licensed Texas chiropractor and related
P.O. Box 149134 questions (RQ-853)
Austin, Texas 787149134
Dear Dr. Levy:
You inform us that certain health-care practitioners, who are licensed as
chiropractors but not as acupuncturists.1 have been advertising that they perform. and
presumably do perform, acupuncture at their chiropractic clinics. You ask three questions
in an attempt to determine whether this phenomenon indicates a violation of V.T.C.S.
article 4495b, subchapter F, which governs the practice of acupuncture, or V.T.C.S.
article 4512b, which governs the practice of chiropractic. Specifically, you seek our
opinion regarding the following issues:
1. Whether the practice of acupuncture is within the scope of
practice for a licensed Texas chiropractor72
2. Whether licensure as an acupuncturist is required for a
licensed Texas chiropractor to engage in the practice of acupuncture?
3. If the answer to the first question is yes and the answer to the
second question is no, whether advertising the practice of
acupuncture by a licensed chiropractor violates statutes prohibiting
false or misleading advertising if the chiropractor fails to indicate in
the advertisement that he or she is not licensed by the Texas State
Board of Acupuncture Examiners?
We will begin by discussing the two statutes that are most relevant to your questions,
V.T.C.S. article4495b, subchapterF, andV.T.C.S. article4512b.
The legislature enacted subchapter F of article 4495b to provide for the
“establishment of statewide standards for the training, education, and discipline of
‘Anantpunchvistia a QraaitiOnn ofacupmchur.SeeV.T.C.8.art.46’5b.0 6.020).
Bruce A Levy, M.D., J.D. - Page 2 (DM-415)
acupuncturists and for “an orderly system of regulating the practice of acupuncture.”
V.T.C.S. art. 4495b, 8 6.01. See generuZ&Attorney General Opiion DM-336 (1995) at
l-2 (summa&mg V.T.C.S. art. 495b, subch. P). Section 6.02(l) defines “acupuncture”
as foliows:
(A) the insertion of an acupuncture needle and the application
of moxibustions to specific areas of the human body as a primary
mode of therapy to treat and mitigate a human condition; and
(B) the administration of thermaJ or electricaJtreatments or the
recommendation of dietary guidelines, energy flow exercise, or
dietary or herbal supplements in conjunction with the treatment
described by Paragraph (A) of this subdivision.* Footnotes added.]
No individual may practice acupuncture in this state unless he or she has obtained
a license to practice acupuncture 6om the Board of Medical Examiners, upon the
recommendation of the Board of Acupuncture Bxaminerss V.T.C.S. art. 4495b, 3 6.06;
see also id. $5 6.05(a)(6), 6.10. A “health care profesSional licensed under another
subchapter” of the Medical Practice Act or another statute may practice acupunctu~
without obtaimng a kense from the Board of Medical Bxaminers,but only if the practice
of acupuncture is “within the scope of’ the health care profesSional’s kense. Id.
8 6.03(a). Any individual who practices acupuncture without a license to practice
~~~on”ir’[c]a~onbymauLF~acylindcros~dcotton~Eallcda~
QhCCd 011thC SkiIt and fid pt the top.” TAFER’S Cycux~~~c MEBXL D~C~ONARYM-66
(Clayton L. Thomas, M.D., MPH, al.. 13Ib cd. 1977); see ah An&mm Y. Edlard, 498 F. Supp. 1038,
1043 11.14(S.D. Tcx. 1980). Moxibuslion is ‘[u]scd to produce c.umWnitation.” TABER’S~YCUXEDIC
MEDIC.%DICTIONARY M&i
Bruce A Levy, M.D., J.D. - Page 3 (DM-415)
acupuncture or a license encompassing the practice of acupuncture commits a class A
misdemeanor. Id. 8 6.12(b).
Section 1 of article 4512b, V.T.C.S., lists three acts constituting the practice of
chiropractic. As amended by the Seventy-fourth Legislature, section 1 provides:
(a) A person shall be regarded as practicing chiropractic within
the meaning of this Act ifthe person:
(1) uses objective or subjective means to analyze, examine,
or evaluate the biomechanical condition of the spine and
musctdoskeletal system of the htmtan body.
(2)pet-formsnonsurgica&nonincisiveprocedures including
but not limited to adjustment and manipulation, in order to
improve the subluxation6 complex or the biomechanics of the
musculoskeletalsysteq or
(3) holds himself out to the public as a chiropractor of the
human body or uses the term “chiropractor,” ‘chiropractic,”
“doctor of chiropractic,” ‘DC.,” or any derivative of those
tetms in CoMection witb his name.’
Act of May 29. 1995. 74th Leg., RS.. ch. 965, 5 13, 1995 Tex. Sess. Law Serv. 4789,
4802 (footnotes added). Prior to the e&&e date of the 1995 amendments, article 4512b
did not limit the scope of chiropractic to only nonincisive, nonsurgical procedures.* See
id.
Section 13a of V.T.C.S. article 4512b, which the Seventy-fourth Legkkure also
amended, see id. 5 18, 1995 Tex. Sess. Law Serv. 4789, 4803, explicitly excludes from
the practice of chiropractic, among other things, “incisive or surgical procedures.” For
purposesofarticle4512b,thephrase
‘%ubhxaIion” is “a panid didofxtia& a yeain” XVII t33ma13 E~ousti DICnONmY 42 (26
ed. 1989).
VhcScvaity-fowthL@3latmiMertalIhewordnMtbcbumsnbody*~“asa
dbpmctof and “or WCSthe tam” See Ad ofhfay 29.1995,74tb Lg., R.S., cl~ 965, # 13.1995 Ta
Seaa. Law Serv. 4789,4802 (amatdiqV.T.C.8. art. 4512b. 0 l(a)(3)).
%QattiaIlar*Qriortolmmrfmcnt by tk Sevay-ftmttb Le&labq V.T.C.S. utick 4512b.
mtuionl(a)(2)pnwidaithatanindikhl~~iftkibciDdividuat~
. .
niaqam,oroIber~inoIdertolmQnweaubl~atlle~cadtbc
nxtndoskelti syxten~” See Aa ofMay 29.1995.74th Leg. RS.. ch 965, p 13.1995 Ta Sets. JAW
&IV. 4789.4802 @meding V.T.C.S. art. 4512b, P l(a)(2)).
Bruce A Levy, M.D., J.D. - Page 4 (DM-415)
“incisive or surgical procedure” includes but is not limited to making
an incision into any tissue, cavity, or organ by any person or
implement. It does not include the use of a needle for the purpose of
drawing blood for diagnostic testing.9
V.T.C.S. art. 4512b, 3 13a(b) (footnote added).
A violation of article 4512b results in the revocation or ampension of a license, or
the probation or reprimand of a licensee. V.T.C.S. art. 4512b, 8 14(a); see aJso id.
6 14a(l). The Texas Board of Chiropractic Firmminersmay assess an administrative
penalty in an amount not to exceed $1,000 for each day the violation occurs or continues.
See id. 85 14(a), 19a(a). In addition, a person who violates article 4512b is liable to the
state for a civil penalty of Sl,OOOfor each day the violation occurs or continues. Id.
8 lww
For purposes of this opinion, we assume a chiropractor practices acupuncture to
improve the subluxation complex or the biomechanicsof the musculoskeletal system. See
id. 5 l(a)(2). Central to our determination of whether the practice of acupuncture is
“within the scope of’ a chiropractic license, see V.T.C.S. art. 4495b, $6.03(a), is a
consideration of whether acupuncture is an “incisive or surgical procedure” for purposes
of section 13a(b) of article 4512b. lf acupuncture is an incisive or surgical procedure,
article 4512b, section 13a(s)(l) excludes it from the practice of chiropractic, and a person
who is licensed only as a chiropractor may not perform it..
The word “incisive” means “cutting; having the power of cutting.” TABER’S
C~cLopEDlcMEDICAL DICI’IONARY I-12 (Clayton L. Thomas, M.D., M.P.H., ed., 13th
ed. 1977). It also means “cutting with a sharp edge.” Vll THE CIEIRD EJIGIJSH
DICTIONARY 796 (2d ed. 1989).
The word “surgical”per&s to surgery, which is the “branch of medicine dealing
with manual and operative procedures for correction of deformities and defects, repair of
injuries, and diagnosis and cure of certain diseases.” TABER’SCYCLOPEDIC MEDICAL
DICIIONARY. supru, at S-130; see &o id at S-131 (defining ‘surgical”). For purposes of
the Medical Practice Act, V.T.C.S. article 4495b, the legislature has defined the term
“surgery” to include “surgical services, surgical procedures, surgical operations, and the
procedures described in the surgery section of the Common Procedure Coding System ills
adopted by the Health Care Fiicing Administration of the United States Department of
Health and Human Services.“t” V.T.C.S. art. 4495b. 8 l.O3(a)(l5).
Bruce A Levy, M.D., J.D. - Page 5 (DM-415)
When interpreting a statute, a court must diligently attempt to ascertain legislative
intent. Gov’t Code 3 312.005. Although we question whether a court ordinarily would
classify acupuncture as “incisive”*tor “surgicaJ,“tswe believe the legislature intended that
V.T.C.S. artjcle 4512b, section 13a(b) be construed to classify acupuncture as an “incisive
or surgical procedure”; we tiuther believe a court would reach a conclusion consistent
with the legislative intent. The legislature expressly excluded fiorn the range of
procedures that are incisive or surgical %e use of a needle for the purpose of drawing
blood for diagnostic testing.” We deduce that the legiskre considered the use of a
needle for the purpose of drawing blood to be an incisive or surgical procedure, and we
find no distinction between the use of a needle in a diagnostic ckcum&mce and the use of
acupuncture needles.
Additionally, we note that, during the Seventy-fourth Legislature, a witness
described acupuncture as “a mild form of surgery”to the Senate Committee on Health and
Human Setvices. See Hearings on S.B. 718 Before the Senate Comm. on Health and
Human Sendces, 74th Leg., R.S. (Apr. 12,X95) (statement of Dee Ann Newbold, Texas
Acupuncture AswciaUon) (tape available fbom Senate Statf Services). The legiskme
may well have believed, therefore, that acupuncture was among those “incisive” and
“surgicaJ”procedures article 4512b, sections l(a)(2) and 13a(b) exclude gem the practice
of acupuncture.
wpmccureua~~dtbe~“aAwpmchmSoc~ofKw.
L’COMSh8VCdCSdbCd
v. KmLuz3ateEd. o/HeahgArts, 602 P.2d 1311.1311 (l&a. 1979). or “a &mncmiq~bodilyticriug”
see People v. Amber, 349 N.Y.S.26 604. 610 (N.Y. Sup. Ct 1973), as well as an ?nsadon- &
‘manipuhtion” of wires of nce&q see An&eweY. Babd, 498 F. Sqp. 1038, 1043 (SD. Ta 1980);
Peoplev. Roes, 514N.E.Zd993.993.994 (Ill. 1%7);AwpurchvrSoc~of?hn., 602P.2dat 1312;.Wate
v.Rlch, 339N.E.Zd630.631 (Ohio 1975);Amber,349N.Y.S.2dat611.
“Wefindno0~cl~~om1tthathuamskcdwlwtl~rtbcpndiceof~~e~
rar.&ay~tmt~~tcIhat~amundtbccaunbyCmnhy~ontbeimue. Forexample,thcSqremc
delmmedtbat~l6notaugayferpvporaofthcKao6assutatca
kfaustvupnncturriSWt”~tOrparste~-ti6SWfWtkpcuporc,OfQCW&UjOIlfOI
trratmcnf re~lactmwt or runoval of aQioted partr.” Awpvnchm Sot ), of Kan. Y. Kwwe State Ed. of
Healing Arts. 602 P.2d 1311. 1315-16 &an. 1979); accord People v. Roar. 514 NE26 993, 997 (Tll.
1987); see &o Stute Y. Wan, 528 P.2d 594.5% (Or. 1974) (nnnmprizing wltboutKGMsidaing.lower
OOUtl’StiIdiUgtIUlt~ didlWtCOMtltUtCllliWl6UIgCIy).
OIlthCOtbbi3Od,thCW~COUttOfAQQWlSlISS&tWUiWdthUropoDchne-
surgay bccauac it iwoks “the pwehation of human tima.” syotc v. Wilwn, 528 P.2d 279,281 (Wash
Ct. AQQ. 1974); accord Kelley Y. Rqickas, 270 N.W.2d 665.669 (Mich Ct. m. 1978) (citing Nets
Reguhting the Pm&w ofAwpuncturr: Rewnt Devekpwn~ in Gd@mia, 7 U.C. DAVISL. &V. 385,
391-92.3% (1974)); see also Che!?y Y. State Farm MU. Aufo. Ins. Co., 489 N.W.26 188,790 @fich. Ct.
AQQ. 1992) (citing Roguckar. 270 N.W.Zd 665); Cammwwalth Y. Schakber& 371 ALhI 544,547 n.6
(Pa.commw.ct 1977)@dicatingthatAtbxncyGcnaalof~~mncI~thst~ir
augay iad fokkldcn to chifopracIorS).
Bruce A Levy, M.D., J.D. - Page 6 (DM-415)
Furthermore., article 4495b. subchapter F suggests that the legislature believes
acupuncturists should be trained in accordance with statewide standards, see V.T.C.S. art.
4495b, 5 6.01(l), and examined by a state board, see id. 5 6.05(a). The legislature has
established requirements for an applicant for a license to practice acupuncture: among
other things, the applicant must have completed 1,800 hours of instruction in subjects
including bacteriology, physiology. symptomatology, meridian and point locations, and
hygiene, and must have treated patients (with supervision) for at least two terms. See id.
8 6.07(c). We believe the legislature, in the interest of the public health, safety, and
welfare, see id. 8 6.01(2), intended to except l?om the training and examination
requirements only health care professionals whose licenses clearly encompass the practice
of acupuncture. See id 5 6.03(a). In our opinion, the practice of chiropractic, as
delineated in V.T.C.S. article 4512b. section 1. does not clearly encompass the practice of
acupuncture.
We accordingly conclude that V.T.C.S. article 4512b. section 1. which
encompasses within the practice.of chiropractic only nonsurgical, nonincisive procedures.
does not authorize a chiropractor to practice acupuncture. In answer to your Srst
question. therefo~ the practice of acupuncture is not within the scope of practice for a
licensed Texas chiropractor. Conversely, in answer to your second question, a licensed
chiropractor must obtain a license to practice acupuncture if the chiropractor desires to
practice acupuncture.
You premise your last question on an a&native response to your first question
and a negative response to your second question. We have reached the opposite
conclusions. Consequently, we need not answer your last question.
Bmce A Levy, M.D., J.D. - Page 7 (DM-415)
SUMMARY
Only a health care professional whose license clearly
encompasses the practice of acupunchxe is excepted from the
training and exanktion requirements se-tforth for acupuncturists in
V.T.C.S. article 4495b, subchapter F. The practice of chiropractic,
as delineated in V.T.C.S. article 4512b, section 1, does not clearly
encompass the practice of acupuncture. Accordingly, V.T.C.S.
article 4512b, section 1, which authorizes a chiropractor to perform
only nonsurgical, nonincisive procedures, does not authorize a
chiropractor to practice acupuncture.
Thus, the practice of acupuncture is not witbin the scope of
practice for a licensed Texas chiropractor. Conversely, a licensed
chiropractor must obtain a license to practice acupuncture if the
chiropractor desires to practice acupunctore.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Frepared by Kymberly K. Oltrogge
Assistaat Attorney General | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4147432/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0119n.06
No. 16-1670
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JACOB J. DANLEY; JEFFREY J. McINTYRE, JR., ) Feb 22, 2017
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellants, )
)
v. )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
ENCORE CAPITAL GROUP, INC.; MIDLAND )
COURT FOR THE EASTERN
CREDIT MANAGEMENT, INC.; MIDLAND )
DISTRICT OF MICHIGAN
FUNDING, LLC., )
)
Defendants-Appellees. )
)
BEFORE: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendants purchased plaintiffs’ stale debts and attempted to collect, in addition to the
debts, post-“charge off” interest. In this action, plaintiffs claim that this practice violates federal
and Michigan debt-collection laws. Based on arbitration provisions contained in plaintiffs’
various account agreements, the district court compelled the parties to arbitrate, ruling that the
agreements were enforceable and that the parties expressly authorized—via a delegation
clause—an arbitrator to consider plaintiffs’ various “gateway” challenges to the arbitration
provisions. In a separate order, the district court sealed several documents on the basis that the
documents fell within the purview of the parties’ protective order. For the reasons set forth, we
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
affirm the district court’s order compelling arbitration, but reverse the district court’s order
denying in part plaintiffs’ motion to unseal documents.
I.
In the 2000s, plaintiffs Jacob Danley and Jeffrey McIntyre opened credit-card accounts
(both with Citibank, and McIntyre additionally with Chase) and, after they stopped making
payments on their respective accounts, their creditors “charged off” these debts. See Stratton v.
Portfolio Recovery Assocs., LLC, 770 F.3d 443, 445 (6th Cir. 2014) (discussing “charging off”
uncollectable consumer debts). Defendants purchased plaintiffs’ debts years later, seeking to
collect these debts and accrued interest post-charge off, totaling approximately $2,000 for each
account.
Plaintiffs commenced this putative class action in 2015, claiming defendants’ attempts to
collect charged-off interest violates the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq., and the Michigan Collection Practices Act, M.C.L. § 445.251, et seq. Defendants moved to
compel arbitration based upon the binding arbitration agreements in plaintiffs’ respective credit-
card account agreements. These arbitration agreements provide that they are governed by the
Federal Arbitration Act, are assignable and survive assignment, and contain what are known as
“delegation provisions”—agreements “to arbitrate threshold issues concerning the arbitration
agreement.” See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68 (2010).
Danley and McIntyre raised two main points in response to defendants’ motion. First,
they challenged defendants’ reliance upon exemplar agreements and other records concerning
plaintiffs’ account activities and the assignment of their accounts to defendants to establish the
existence of the arbitration agreements instead of the original agreements. Second, they argued
-2-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
that, as set forth in the purchase agreements, defendants purchased only “the rights to debts” and
not the financial institutions’ “contract documents” that include the arbitration agreements.
The district court disagreed and ordered arbitration. On the first issue, it ruled that the
exemplar agreements were more than satisfactory, especially because plaintiffs did “not come
forward with any evidence to rebut that the agreements that have been produced are the same as
those entered between plaintiffs and the original creditors.” Regarding the second issue, it
concluded that plaintiffs did “not mention, let alone challenge the delegation provision[s,]” and
thus, under Rent-A-Center, referred plaintiffs’ enforceability arguments to the arbitrator.
Plaintiffs also challenged the district court’s order sealing certain documents. In support
of their motion to compel arbitration, defendants filed under seal various documents subject to
the parties’ stipulated protective order regarding the sale and assignment of the debts. They did
so after seeking plaintiffs’ stipulation to file these documents under seal, to which plaintiffs did
not respond. It appears that the district court advised defendants that because the parties agreed
to a protective order, there was “no need to submit a motion, nor stipulated order to file items
under seal.” Plaintiffs moved to unseal some of these documents, arguing that the terms of the
parties’ protective order provided that “no document may be filed under seal without leave of
court” and that the district court had not so provided. The district court granted in part and
denied in part plaintiffs’ motion (because defendants conceded some should not have been
sealed). In doing so, the district court reasoned as follows:
The stipulated protective order in this case spells out exactly how a dispute over a
protected designation is to be handled by the parties. It is clear in this case that
plaintiffs did not follow the terms of the stipulated protective order, jumping
straight to filing a motion to unseal without trying to work the issue out with
opposing counsel and without certifying the issue to the court. The court finds
that plaintiffs therefore waived their right to object to the protected designation of
the documents at issue.
-3-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
With regard to filing Protected Materials and Information with the court, the
stipulated protective order provides that to the extent any information to be filed
with the court reveals information claimed to be confidential under the terms of
the protective order, it must be filed under seal. “However, no document may be
filed under seal without leave of court.” The term “leave of court” refers to
judicial permission to follow a nonroutine procedure. While this could be
accomplished with the filing of a motion seeking leave, as urged by plaintiffs, the
fact that defendants followed a different path to filing the sealed documents does
not require the court to order that the documents be unsealed. Considering the
matter in the manner in which it was raised by plaintiffs in this case, the court
accepts defendants’ filing of Exhibits A, B, C, H, I, L, and M under seal in support
of their motion to compel arbitration. To their credit, in their response brief,
defendants agree that Exhibits D, G, J, K, and N are not properly designated as
confidential because they had previously been filed as unprotected exhibits to the
original motion to compel arbitration. As such, those exhibits shall be re-filed
without the confidential designation.
(Emphasis added.)
Plaintiffs appeal the orders granting arbitration and denying their motion to unseal
documents.
II.
The Federal Arbitration Act “embodies the national policy favoring arbitration and places
arbitration agreements on equal footing with all other contracts.” Buckeye Check Cashing, Inc.
v. Cardegna, 546 U.S. 440, 443 (2006). It provides that a “written provision in . . . a contract
evidencing a transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, . . . or an agreement in writing to submit to arbitration
an existing controversy arising out of such a contract, . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. Courts must, consistent with this text, “‘rigorously enforce’ arbitration
agreements according to their terms.” Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304,
2309 (2013) (citation omitted).
-4-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
On de novo review, Huffman v. Hilltop Cos., 747 F.3d 391, 394 (6th Cir. 2014), we can
quickly dispense with the argument that the district court erred in relying upon an exemplar
agreement and other pertinent account records defendants used to establish the validity of the
arbitration agreement for McIntyre’s Chase account. In order to defeat defendants’ motion to
compel arbitration, it was McIntyre’s burden to “show a genuine [dispute] of material fact as to
the validity of the agreement to arbitrate.” Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 889
(6th Cir. 2002). This “showing mirrors that required to withstand summary judgment in a civil
suit.” Id. Thus, we must determine, viewing the facts in the light most favorable to McIntyre,
“whether the evidence presented is such that a reasonable finder of fact could conclude that no
valid agreement to arbitrate exists.” Id.
The district court correctly ruled McIntyre did not meet this burden, and we need not add
to its analysis. Moreover, McIntyre concedes in his appellate brief that he “did not demonstrate
that the exemplar was not his agreement.” Instead, McIntyre asks that we require defendants to
“complete the circle” and, barring proof of the original agreement, deny arbitration. But it was
McIntyre’s burden to present facts such that a reasonable factfinder could conclude the
arbitration agreement did not exist. Id. Upon presentment of the exemplar agreement,
McIntyre’s account records, and other business records regarding the transfer of his account to
defendants, the district court correctly concluded McIntyre did not satisfy his burden.
III.
Normally, it is within the district court’s province to “determine whether the parties have
agreed to arbitrate the dispute at issue.” Id. (citation omitted). In particular, challenges to the
formation of an arbitration agreement (whether it was in fact agreed to by the parties) are
“generally for courts to decide.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296
-5-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
(2010). Here, Danley and McIntyre had the opportunity to challenge the formation of their
arbitration agreements. The district court took the contractual relationship seriously, requiring
defendants to place substantial documentary evidence into the record before proceeding with
motion practice. On appeal, however, Danley and McIntyre do not clearly argue that their
challenges go to the formation of the arbitration agreements, and they do not cite Granite Rock
or explain its principles.
Danley and McIntyre do raise enforceability issues that relate to the validity of the
arbitration agreements. Whether a court or an arbitrator decides the validity of an arbitration
agreement with a delegation provision is governed by Rent-A-Center. In Rent-A-Center, the
Supreme Court reiterated that “parties can agree to arbitrate ‘gateway’ questions of
‘arbitrability,’ such as whether the parties have agreed to arbitrate or whether their agreement
covers a particular controversy.” 561 U.S. at 68–69. The Rent-A-Center arbitration agreement
provided that it was for an arbitrator, not any other forum, to decide “any dispute relating to the
interpretation, applicability, enforceability or formation of th[e] Agreement, including . . . any
claim that all or any part of this Agreement is void or voidable.” Id. at 66. Such a “delegation
provision” is a separately enforceable provision under the Federal Arbitration Act, held the
Supreme Court, because under the Federal Arbitration Act, “an arbitration provision is severable
from the remainder of the contract.” Id. at 70–71 (citation omitted). Put differently, “a party’s
challenge to another provision of the contract, or to the contract as a whole, does not prevent a
court from enforcing a specific agreement to arbitrate.” Id. at 70. And this severability rule
applies even if the delegation provision is contained within the arbitration agreement. Id. at 72.
“That,” wrote Justice Scalia for the majority, “makes no difference.” Id.
-6-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
Delegation to an arbitrator of gateway issues does not mean that a federal court should
automatically grant a motion to compel arbitration, because the party seeking to avoid arbitration
may still raise defenses to the agreement to delegate. Id. Here, however, one absolute precludes
granting plaintiffs’ requested relief: a party seeking to avoid the effects of a delegation provision
must “challenge[] the delegation provision specifically.” Id. If that party fails to do so, a court
must treat the delegation provision as valid and enforce it as written. Id.
In the present case, as in Rent-A-Center, the parties “clearly and unmistakably” provided
for an arbitrator to determine various “gateway issues” relative to their claims. Id. at 69 n.1, 70;
AT&T Techs., Inc. v. Comm’ns Workers of Am., 475 U.S. 643, 649 (1986); see also Milan
Express Co., Inc. v. Applied Underwriters Captive Risk Assur. Co., Inc., 590 F. App’x 482, 484–
85 (6th Cir. 2014). The delegation provision at issue for the Citibank accounts state that “[a]ll
claims relating to your account, a prior related account, or our relationship are subject to
arbitration, including Claims regarding the application, enforceability, or interpretation of this
Agreement and this arbitration provision.” (Emphasis added.) McIntyre’s Chase account terms
are similar: “Claims subject to this Arbitration Agreement include Claims regarding the
applicability of this Arbitration Agreement or the validity of the entire Cardmember Agreement
or any prior Cardmember Agreement.” (Emphasis added.) Plaintiffs’ various arguments
regarding the validity of the assignment of the arbitration agreements as a whole—whether
Chase bank voluntarily forfeited its right to enforce the arbitration agreement (and thus did not
transfer it to defendants), whether the Uniform Commercial Code permits assignment of
arbitration agreements, and whether defendants purchased just plaintiffs’ debts and not their
underlying purchase agreements—all fit well within the language of the delegation provisions.
-7-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
Like the petitioner in Rent-A-Center, Danley and McIntyre did not acknowledge their
delegation provisions, let alone challenge them (below, or on appeal). They also admit that they
“never argued that there were provisions in or parts of the arbitration agreements, themselves”—
i.e., the delegation provisions—“that were not enforceable.” Given this concession, the district
court correctly concluded the Supreme Court’s decision in Rent-A-Center precludes challenges
to the enforceability of the delegation provisions. 561 U.S. at 72–73.
IV.
Finally, plaintiffs raise an issue recently addressed by our court: the need for the district
court to give adequate and specific reasons for sealing court records. See, e.g., Rudd Equip. Co.,
Inc. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016); Shane Grp., Inc.
v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305–09 (6th Cir. 2016); United States v.
DeJournett, 817 F.3d 479, 484 (6th Cir. 2016). Here, the district court authorized the sealing of
seven documents without “set[ting] forth specific findings and conclusions ‘which justify
nondisclosure to the public.’” Shane Grp., 817 F.3d at 306 (quoting Brown & Williamson
Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1176 (6th Cir. 1983)). We review this decision for
abuse of discretion. Rudd Equip. Co., 834 F.3d at 593. This “decision is not accorded the
deference that standard normally brings,” however, given the “strong presumption in favor of
openness as to court records.” Shane Grp., 825 F.3d at 305–06.
In Shane Group, issued after the district court’s ruling, we held that “a court’s failure to
set forth [its] reasons . . . as to why the interests in support of nondisclosure are compelling, why
the interests supporting access are less so, and why the seal itself is no broader than necessary
. . . is itself grounds to vacate an order to seal.” Id. at 306 (emphasis added). In the present
case, the district court made no such findings and instead criticized plaintiffs for failing to follow
-8-
No. 16-1670, Danley, et al. v. Encore Capital Group, et al.
the terms of the parties’ protective order and for failing to work out their differences with
defendants. However, despite plaintiffs’ actions or inactions, a district court has its own
“obligation to explain the basis for sealing court records [that] is independent of whether anyone
objects to it.” Id. Defendants’ attempts to distinguish Shane Group are not convincing.
V.
For these reasons, we affirm the district court’s order compelling arbitration, but reverse
the district court’s order granting in part and denying in part plaintiffs’ motion to unseal, and
remand for further proceedings consistent with this opinion.
-9- | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124943/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 12, 2016
Ms. Jennifer D. Robison Opinion No. KP-0121
Brown County Auditor
200 South Broadway Re: Authority of county attorneys regarding
Brownwood, Texas 76801 payments made in conjunction with pretrial
diversion agreements (RQ-0111-KP)
The Honorable Shane Britton
Brown County Attorney
Brown County Courthouse
200 South Broadway
Brownwood, Texas 76801
Dear Ms. Robison and Mr. Britton:
You both ask questions about the Brown County Attorney's authority to accept "gifts and
grants" under section 45.125 of the Government Code in conjunction with pretrial diversion
agreements, and the proper handling of such funds so received. 1 See TEX. Gov'TCODE § 45.125.
A pretrial diversion agreement is an agreement whereby the State agrees to postpone the trial date
while an accused performs certain conditions and, if the accused successfully completes the
conditions, to dismiss the charges. Fischer v. State, 832 S.W.2d 641, 643-44 (Tex. App.-
Corpus Christi 1992, no writ). Pretrial diversion programs are also referred to as pretria~
intervention programs. See In re R.B., 361 S.W.3d 184, 189 n.5 (Tex. App.-El Paso 2012, pet.
denied); Tex. Att'y Gen. Op. No. GA-0114 (2003) at 2 & n.2. While they differ about specific
facts, both request letters state that the county attorney's office has entered into pretrial diversion
agreements requiring an accused to make a "donation" to the office, and that funds have been
transferred from the donation account to the hot-check fund and used to compensate employees of
the office. Auditor Request Letter at 3-4; Cty. Att'y Request Letter at 9, 12-14. The Auditor
Request Letter first asks whether section 45.125 of the Government Code authorizes the Brown
County Attorney to agree with an accused "in misdemeanor criminal cases to refrain from
prosecuting a violation of law if the [accused] agrees to 'donate' or otherwise pay money to the
'See generally Letter & Brief from Ms. Jennifer D. Robison, Brown Cty. Auditor, to Honorable Ken Paxton,
Tex. Att'y Gen. (June 14, 2016), ("Auditor Request Letter"); Letter from Honorable Shane Britton, Brown Cty. Att'y,
to Ken Paxton, Tex. Att'y Gen. (July 28, 2016) ("Cty. Att'y Request Letter"), https://www.
texasattomeygeneral.gov/opinion/requests-for-opinion-rqs.
Ms. Jennifer D. Robison (KP-0121)
The Honorable Shane Britton
Page 2
Brown County Attorney as part of pretrial diversion agreements with his office." Auditor Request
Letter at 1. 2
Prosecuting attorneys may accept gifts and grants only as authorized by statute. Tex. Att'y
Gen. Op. No. GA-0562 (2001) at 2 (noting that commissioners courts are authorized to receive
gifts and grants for prosecutorial purposes). Section 45.125 of the Government Code provides:
The county attorney of Brown County or the Commissioners
Court of Brown County may accept gifts or grants from any
individual, partnership, corporation, trust, foundation,
association, or governmental entity for the purpose of financing
or assisting the operation of the office of county attorney in
Brown County. The county attorney shall account for and report
to the county auditor all gifts and grants accepted under this
section.
TEX. Gov'T CODE§ 45.125. The statute does not define "gifts or grants." The ordinary meaning
of a gift is "a voluntary transfer of property to another made gratuitously and without
consideration." Magness v. Magness, 241S.W.3d910, 912 (Tex. App.-Dallas 2007, pet. denied);
see also Pankhurst v. Weitinger & Tucker, 850 S.W.2d 726, 730 (Tex. App.-Corpus Christi 1993,
writ denied) (stating that a "[l]ack of consideration is an essential characteristic of a gift such that
an exchange of consideration precludes a gift"). The word "grant" has several common meanings,
including a gift for a particular purpose or a conveyance or transfer of property or rights. 3 A
monetary payment in exchange for a promise to dismiss criminal charges may constitute an
exchange of consideration that is not consistent with the ordinary meanings of either "gift" or
"grant." Further, even assuming that a gift or grant may include contractual consideration, section
2
The Auditor Request Letter suggests that the pretrial diversion agreements may contravene certain penal
statutes. Auditor Request Letter at 9. Without reference to the facts alleged in the letter, the payment of money by
an accused in exchange for a prosecuting attorney's favorable treatment in a criminal matter involving the accused
can in some circumstances constitute a violation of section 36.02 of the Penal Code. See TEX. PENAL CODE
§ 36.02(a)(2); Bush v. State, 722 S.W.2d 41, 44 (Tex. App.-Eastland 1986, pet. granted) (holding that payment of
cash to a district attorney in exchange for a probated sentence constitutes bribery under section 36.02), ajf'd, 773
S.W.2d 297 (Tex. Crim. App. 1989). Also, a prosecuting attorney's acceptance of such a payment in particular
circumstances could constitute a violation of section 36.08. See TEX. PENAL CODE § 36.08 ("Gift to Public Servant
by Person Subject to His Jurisdiction"). However, whether a crime has occurred in specific circumstances is a
question of fact that cannot be resolved in the opinion process. Tex. Att'y Gen. Op. No. GA-0956 (2012) at 3.
3
See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 545 (11th ed. 2004) (definitions including"]: the act
of granting 2: something granted; esp.: a gift (as of land or money) for a particular purpose 3a: a transfer of property
by deed or writing); NEW OXFORD AM. DICTIONARY 756 (3d ed. 2010) (definitions including "a sum of money given
by an organization, esp. a government, for a particular purpose[;] a legal conveyance or formal conferment"); see
also Traylor v. State, 36 S.W.2d 506, 507 (Tex. Crim. App. 1930) (stating that as a verb, '"[g]rant' means 'to bestow;
to confer"').
Ms. Jennifer D. Robison (KP-0121)
The Honorable Shane Britton
Page 3
45.125 does not address pretrial intervention agreements or the county attorney's authority to
condition dismissal of criminal charges on the accused's payment of money to the county attorney.
Other statutes regulate aspects of pretrial intervention agreements. Section 76.011 of the
Government Code authorizes a community supervision and corrections department
("Department") to operate a program for "the supervision and rehabilitation of persons in pretrial
intervention programs." TEX. Gov'T CODE § 76.01 l(a). A defendant participating in such a
program may be required to pay to the court a Department supervision fee in an amount not more
than $60 per month and a payment for certain other expenses. TEX. CODE CRIM. PROC. art.
102.012(a)-(b). Separately, article 102.0121 of the Code of Criminal Procedure provides for
another fee related to a pretrial intervention program:
(a) A district attorney, criminal district attorney, or county attorney
may collect a fee in an amount not to exceed $500 to be used to
reimburse a county for expenses, including expenses of the
district attorney's, criminal district attorney's, or county
attorney's office, related to a defendant's participation m a
pretrial intervention program offered in that county.
(b) The district attorney, criminal district attorney, or county
attorney may collect the fee from any defendant who participates
in a pretrial intervention program administered in any part by the
attorney's office.
(c) Fees collected under this article shall be deposited in the county
treasury in a special fund to be used solely to administer the
pretrial intervention program. An expenditure from the fund
may be made only in accordance with a budget approved by the
commissioners court.
Id. art. 102.0121. By expressly authorizing a prosecutorial fee for a pretrial intervention
agreement, limiting its amount, and restricting its use to the prosecuting attorney's pretrial
intervention expenses, article 102.0121 precludes requiring additional prosecutorial payments for
pretrial intervention no matter how they are characterized. See United Servs. Auto. Ass 'n v. Brite,
215 S.W.3d 400, 403 (Tex. 2007) (explaining the doctrine of statutory construction that an express
inclusion of one thing excludes other things not expressly included). A court would likely
conclude that section 45.125 of the Government Code does not authorize the Brown County
Attorney's office to require an accused to pay an amount to that office as a condition of a pretrial
intervention agreement in excess of or in addition to the fee authorized by article 102.0121 of the
Ms. Jennifer D. Robison (KP-0121)
The Honorable Shane Britton
Page4
Code of Criminal Procedure. 4 See Tex. Att'y Gen. Op. No. JC-0042 (1999) at 1 (stating that
"[a]lthough a prosecutor has broad discretion to refrain from prosecuting a violation of the law
that occurs within his or her jurisdiction, a prosecutor may not require an offender to contribute
money to a public or private entity in consideration of the prosecutor's decision not to prosecute").
The Auditor's Request Letter asks whether a judge may order "defendants in misdemeanor
criminal cases to make 'donations' to the Brown County Attorney as part of a pretrial diversion
agreement with his office." Auditor Request Letter at 1. Section 103.021(22) of the Government
Code authorizes a court to order a defendant to pay pretrial intervention program administrative
fees under article 102.0121 of the Code of Criminal Procedure. See TEX. Gov'T CODE
§ 103.021(22); TEX. CODE CRIM. PROC. art. 102.0121. We are not aware of any statute that would
authorize a criminal court to order a defendant to make a gift or grant under section 45.125 of the
Government Code.
The County Attorney's Request Letter asks what expenditures are "appropriate" (i.e.,
authorized) for funds received under section 45.125 of the Government Code and under article
102.0121 of the Code of Criminal Procedure. Cty. Att'y Request Letter at 15. Section 45.125
authorizes the Brown County Attorney to receive gifts and grants only "for the purpose of
financing or assisting the operation of the office of county attorney in Brown County" and thus the
authority to expend the funds is limited to the stated purpose. TEX. Gov'T CODE§ 45.125. The
fee in article 102.0121 is for expenses of a prosecuting attorney's office "related to a defendant's
participation in a pretrial intervention program offered in that county," and may be expended "only
in accordance with a budget approved by the commissioners court." TEX. CODE CRIM. PROC. art.
102.0121(a), (c); see also Tex. Att'y Gen. Op. No. GA-1039 (2014) at 2 (discussing the propriety
of expenditures under art. 102.0121).
The County Attorney's Request Letter further asks "[w]ho has the ultimate authority or
control of the disposition of' the gifts and grants received under section 45.125 of the Government
Code and whether such funds should be placed in the county's general fund or a separate donation
fund. Cty. Att'y Request Letter at 15. Section 45.125 does not address the control or disposition
of gifts and grants, except that the county attorney must "account for and report to the county
auditor all gifts and grants accepted." See TEX. Gov'T CODE § 45.125. Generally, an officer who
receives funds belonging to the county must deposit the funds with the county treasurer, who "shall
deposit the money in the county depository in the proper fund to the credit of the person or
department collecting the money." TEX. Loe. Gov'T CODE § 113.021(b). The county attorney
has not been expressly authorized to make expenditures from a section 45.125 donation fund,
unlike the authority granted to an attorney under chapter 102 of the Code of Criminal Procedure
to administer the hot-check fund and make expenditures at the attorney's sole discretion. See TEX.
4
The County Attorney's Request Letter cites to legislative history of section 45.125 to argue that the purpose
of granting additional authority to receive gifts and grants was to transfer some of the expense of the county attorney's
office from the taxpayers to "Brown County offenders" as part of a pretrial intervention program. Cty. Att'y Request
Letter at 7-8. However, "the intent of the Legislature is derived from the language it finally enacted," not from
statements made during the legislative process. Tex. Mut. Ins. Co. v. Ruttiger, 3 81 S.W.3d 430, 453 (Tex. 2012).
Ms. Jennifer D. Robison (KP-0121)
The Honorable Shane Britton
Page 5
CODE CRIM. PROC. art. 102.007(£). While the issue is one of first impression, a court would likely
conclude that the commissioners court, as the county's budgetary body, is responsible for the
approval of expenditures from gifts and grants received under section 45.125 of the Government
Code. See TEX. Gov'T CODE § 45.125; TEX. Loe. Gov'T CODE §§ 111.0706 (requiring a
commissioners court to adopt a special budget for spending "grant or aid money for its intended
purpose"), 113 .041 (a) (commissioners court's approval of disbursements); Hooten v. Enriquez,
863 S.W.2d 522, 529 (Tex. App.-El Paso 1993, no writ) ("Generally, the allocation of county
funds is a policy-making determination left to the sound discretion of the commissioners court.").
Finally, both request letters ask whether gifts and grants received under section 45.125 of
the Government Code may be transferred to and comingled with the county attorney's hot-check
fund established pursuant to chapter 102 of the Code of Criminal Procedure. Auditor request
Letter at 1; Cty. Att'y Request Letter at 15. The commissioners court possesses authority to
transfer amounts between budget items by budget amendment. See TEX. Loe. Gov'T CODE
§ l l l .070(c). But while amounts in the hot-check fund and the account for county attorney gifts
and grants serve similar purposes, they are subject to different statutory requirements. Under
article 102.007 of the Code of Criminal Procedure, fees for collecting and processing a check or
other similar sight order are to be segregated in a special fund, expended at the prosecuting
attorney's sole discretion, and "used only to defray the salaries and expenses of the prosecutor's
office" other than the prosecuting attorney's own salary. TEX. CODE CRIM. PROC. art. 102.007(£).
Gifts and grants under section 45.125 of the Government Code are also to be used for the
operations of the Brown County Attorney's office but, as noted above, expenditures are likely
subject to commissioners court approval. We are not aware of any statute that authorizes the
comingling of funds of a different character. Accordingly, a court would likely conclude that a
county is not authorized to comingle gifts or grants received under section 45 .125 of the
Government Code with the special fund under article 102.007 of the Code of Criminal Procedure.
Ms. Jennifer D. Robison (KP-0121)
The Honorable Shane Britton
Page 6
SUMMARY
Section 45.125 of the Government Code authorizes the
Brown County Attorney to receive gifts and grants limited to the
purpose of financing or assisting the operation of the attorney's
office. A court would likely conclude that section 45.125 does not
authorize the Brown County Attorney's office to require an accused
to pay an amount to that office as a condition of a pretrial
intervention agreement in addition to or in excess of the fee
authorized by article 102.0121 of the Code of Criminal Procedure.
No statute authorizes a criminal court to order a defendant to pay a
gift or grant under section 45.125 of the Government Code.
Gifts or grants received under section 45.125 of the
Government Code are limited to financing or assisting the operation
of the Brown County Attorney's office. The fee authorized by
article 102.0121 of the Code of Criminal Procedure may be used
only for the expenses of a prosecuting attorney's office related to a
defendant's participation in a pretrial intervention program offered
in that county.
The county commissioners court has ultimate authority over
the disposition of funds received under section 45.125 of the
Government Code. Funds received under that statute may not be
comingled with or transferred to the hot-check fund established
under article 102.007 of the Code of Criminal Procedure.
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/4124963/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
July 6, 2016
The Honorable Micheal E. Jimerson Opinion No. KP-0101
Rusk County and District Attorney
115 North Main Street, Suite 302 Re: Whether the Rusk County school district
Henderson, Texas 75652 tax violates article VIII, section 1-e of the
Texas Constitution (RQ-0090-KP)
Dear Mr. Jimerson:
You ask whether it is problematic under article VIII, section 1-e that tax proceeds are being
used to support an independent school district that serves students in a neighboring county. 1 You
tell us that the Rusk County School Board ("school board"), like the county education districts
considered in the Carrollton-Farmers Branch Independent School District v. Edgewood
Independent School District opinion, performs no educational duties. See Request Letter at 1; see
also Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489,
498 (Tex. 1992) (Edgewood Ill). You suggest that because "there are school districts that cross
county lines, resulting in the tax being used to subsidize another county's rates[,] there is no
distinction to a Rusk County citizen between this system and the system [p]ronounced
[u]nconstitutional by the Texas Supreme Court." Request Letter at 1. You inform us the tax was
approved by the voters at an election in 1940. See id You also inform us that the school board's
distribution of the tax proceeds to the school districts in Rusk County is determined by studen~
attendance at each school. See id You state that some of the school districts "overlap with other
counties and serve students from both counties," and that the funds are not limited to only the
county from which they were collected. See id 1-2. You liken the school board to a county
education district that the Texas Supreme Court held unconstitutional in 1992 in its Edgewood III
opinion. See id at 1.
In Edgewood III, the Texas Supreme Court considered a challenge to the State's school
financing system under several provisions of the Texas Constitution. See Edgewood III, 826
S.W.2d at 493. One provision, article VIII, section 1-e, provides that "[n]o State ad valorem taxes
_shall be levied upon any property within this State." TEX. CONST. art. VIII, § 1-e. At issue in
Edgewood III was ad valorem taxation by county education districts. See Edgewood III, 826
S.W.2d at 498. The Legislature created county education districts in response to the Texas
Supreme Court's holding the prior system of school financing unconstitutional. See id; see also
'See Letter from Honorable Micheal E. Jimerson, Rusk Cty. & Dist. Att'y, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1 (Jan. 7, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Micheal E. Jimerson - Page 2 (KP-0101)
Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex. 1991) ("Edgewood IF'). These county
education districts had no educational duties. Edgewood III, 826 S.W.2d at 498 ("They employ no
teachers, provide no classrooms, and educate no children."). Instead, they were created to
"ameliorate disparities among school districts due to local property wealth." Id. Their function
was to levy an ad valorem tax to supplement the local funding required under the school financing
system. See id. Not only did the Legislature require that the county education district levy an
ad valorem tax, it also effectively established the tax rate. See id. at 498, 500. Similarly, the
Legislature directed the distribution of the tax proceeds. See id. at 498-99. These facts led the
Court to state that "[i]f the State mandates that a tax be levied, sets the rate, and prescribes the
distribution of the proceeds, the tax is a state tax." Id. at 500. Thus, the Court said of article VIII,
section 1-e that "[aJn ad valorem tax is a state tax when it is imposed directly by the State or when
the State so completely controls the levy, assessment, and disbursement of revenue, either directly
or indirectly, that the authority employed is without meaningful discretion." Id. at 501-02 (stating
that county education districts "are mere puppets; the State is pulling all the strings"); see also id.
at 503-07 (concluding the tax, imposed without an election, also violated Texas Constitution
article VII, section 3, which requires an ad valorem tax imposed by a school district to be approved
by the electorate).
The tax you describe is a local county equalization tax governed by former chapter 18 of
the Texas Education Code, not a statewide tax. 2 See generally Request Letter at 1-2 (including
former chapter 18 of the Education Code as an attachment to the Request Letter). Chapter 18
authorizes the creation and levy of a "countywide equalization tax for the maintenance of the
public schools." TEX. EDUC. CODE, tit. 2, app. § 18.01; see also id., tit. 2, app. § 18.02(a)
(validating "[a]ll actions heretofore taken in establishing in any county a countywide equalization
fund"). Chapter 18 was repealed in 1995, but a school district or county system operating
thereunder on May 1, 1995, "may continue to operate under the applicable chapter as that chapter
existed on that date." TEX. EDUC. CODE§ 11.301; see also id., tit. 2, app. §§ 18.01-.30. In chapter
18, the Legislature established a maximum rate for a countywide equalization tax. See id., tit. 2,
app. § 18.12(a). The Legislature also provided for the distribution of the proceeds of the
equalization tax. See id., tit. 2, app. § 18.14(a)-(c) (requiring that funds shall be distributed to the
school districts of the county "on the basis of the average daily attendance" and providing that a
"county-line district shall be eligible to receive its per capita apportionment based upon the number
of scholastic pupils residing in the county of the equalization district").
The use of tax proceeds for the support of a school district that overlaps into another county
was not the constitutional infirmity of county education districts in Edgewood III. See generally
Edgewood III, 826 S.W.2d at 500-14 (discussing constitutional challenges). Moreover, under
Edgewood III, the performance of educational duties versus taxing functions is not the standard by
which to find a violation of article VIII, section 1-e. See id. Rather, the standard for article VIII,
section 1-e is whether the State so controls the levy, assessment, and disbursement of revenue that
the tax is essentially directed by the State such that the taxing entity has no meaningful discretion
2SeeAct of June 2, 1969, 61st Leg., R.S., ch. 889, §§ 18.01-.30, 1969 Tex. Gen. Laws 2735, 2848-56,
repealed by Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 58, 1995 Tex. Gen. Laws 2207, 2498, reprinted in TEX.
EDUC. CODE, tit. 2, app. (Title 2-Appendix-Former Chapters with Continued Application).
The Honorable Micheal E. Jimerson - Page 3 (KP-0101)
with respect to the tax. See id at 502. Certainly, under former chapter 18, the Legislature
established the formula for the use of the tax proceeds for the school districts of the county and
thus could be seen as directing the disbursement of the funds. See TEX. EDUC. CODE, tit. 2, app.
§ 18.14. Yet, the imposition of a county equalization tax is discretionary. See id., tit. 2, app.
§ 18.03(b) (providing that countywide school district "may ... exercise in and for the ... county
... the tax power conferred" by the Texas Constitution (emphasis added)). And though former
chapter 18 sets a maximum tax rate, it does not affirmatively establish the actual rate to be imposed.
Instead, it gives discretion to the managing trustees of the countywide school district to determine
the tax rate. See id, tit. 2, app. § 18.25(a). It is not apparent that the Legislature controls a county
equalization tax to the same extent it controlled the county education district tax in Edgewood III.
Some may validly question the wisdom of imposing a county equalization tax in addition to those
imposed by a school district. However, to the extent chapter 18 provides the school board with
meaningful discretion to levy, set the rate, and provide for the disbursement of the equalization
tax, a court is likely to determine that the county equalization tax does not violate article VIII,
section 1-e of the Texas Constitution.
The Honorable Micheal E. Jimerson - Page 4 (KP-0101)
SUMMARY
In Carrollton-Farmers Branch Independent School District
v. Edgewood Independent School District, the Texas Supreme Court
determined that an ad valorem tax imposed by county education
districts was unconstitutional under article VIII, section 1-e of the
Texas Constitution because the levy, assessment, and disbursement
of revenue was so directed by the State that the tax amounted to a
state ad valorem tax. A county equalization tax under former chapter
18 of the Education Code appears to provide a county school board
operating thereunder meaningful discretion with regard to the tax
such that a court could determine that the tax is not similarly
constitutionally infirm under article VIII, section 1-e.
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
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143832/ | 684
OFFICE OFTHE ATTORNEY GENERALOFTEXAS
AUSTIN
u c.MAW"
omn e.*-
I @ ,
of your letter of
plnlon al0 follow-
-t of tale
Oxa8# has about
one glalon tin earl@,
The Frlacn ?3pItenL
aOe heed to exchange
prooeseed for t&me ofme.
ontrol baye the authority
of Control is given a very g0nercbl
ous (Lopartments, boards, institutions
offices of the state with respect to fisea1
ati econanic nattexw. Se0 drt. 603 Rev. C&y. Stat.
The Board fe especiallg mt&orizsCt *to make eon-
tracts aft& t&e State Prison Board for the gxrchaee of
supplios,r * * 3.IlclWng; food., * * 0 and all otiep sup-
i>llOS 01' clfricultural 0X' mUUifaCt~sd pSOduOti, * * l Per
~60 af tha"Statt2 io any of Its dcpnrtliumts, Con~~aeions,
b~arils, 0ffioos or ~lesmosynary or odwatlonal institutioas.~
Rey.CI~.St~t.,Ve~Onte CO&.,&t. 834 l/a.
\
i
685
Honorable Tm DollfWrg - Page S
Article 666 of the Ravfmed Civil Btatutes de-
clarosI
~Tho State Iloard of Control ahall haye
charge and control,of sll prbllo buildings,
grounds and property of the atate, and is
the ouotodian of all publiO persOnal prOperty,
erdf is ahaqed with the reeponsibillt~ to
properly oar0 for and potfmt au* pqer
from damage, instrueion or improper uerge.+%
In sur opi!dou BO. o-z376 we aoIlotrlleathis
statute, 'to suthorise the Board of Control to oooept
from any State deprtmsat Or inst~tUti6n Under its 00~
trol supplicse and equ%pImnt no louger usable or lsbeded
for uereby such departwant or inetitutfon, and to plsse
the 6wut3 In the hamU of any other department or in&i-
tution haying need of the saw (at least temporarily,
If not permanently) vhere such axahanga is oltually
satiefaotory to the two departments or InstitutiOns con-
cerned, as an act of oomemticm under the gepsral pouer
above oonferred on the Board,*
upon these oonalderations you are reepwtfully
ad~ised~~tis the opbion of th&nde~tmentthatths
mard of Goutrol do06 brve the aUtfiO&ty to 8p~OYe the
-hang9 suggested in your 1Ilttr of in*. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143857/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
0-C.HAlW
Ronw~ble J'&EE R. Johnson
Gzeoutlre nlnetor
Btats Deportwmt ai Public Y;sliam
m6tIn, Tecar
near sir1 Opinion No. 04!5W
RW iu-e inmates of publla
or private inBt1tuti0n8
for Inuum l ltglble to
mbcclte 0ia age asslrt-
MM.
We ham ytymlotter ot Zulp 9, 1940 whenin you
requ4st4 our oplni as to the diglblllty for 014 aga as-
slatanoe OS oer persons who ere ixunate~ OS RD
iaStitUtiOn dyh~bd 4 YOUX httQ? as fOll0~8:
*TheGb01 inf$&roribsd 6ituetion now aoti-
fronts ti3Q ~~~nqhtmntr ana it is n8OaI6aary the&% We
sar~~,dsoieion~ A OeT8ain oo~z18p in Taxad,
0 OW&X! isiiQ8 Of a le*rgQ fragS dwUlli.iIIj
afa lea&d thlii builaLa(l to prlvato Laoivi-
n a,csah rental basfa. In this InetItutlan
QrrBogis &w eonfIned. TwenbpWo of this nureber
real$Y.entr of Old &a Asslstacce;86 are pd.0
p.ll o? the88 lnmatas here been dul;
8. N. an4 are un4ar @mdirnehlp. 'The
'hen 5 ol-6QFlbS, Or guSSal, 5 &al* and
When the inmate@ bsocme nax'uly or uu-
they are plaood In irons, aheind, OP
hwwuftea~ orten ML% plaasd In strait-faekets.
h llaensaa praatioing phyoio~an is kept on oall.
The Oounty Health Officer nnd Uounty FSyOhiddSt
make ocoaslonal viaits to this Instltutlon far the
purpose or QXRBdCi~ the'inmntes and sdvIeIu& with
the management labto tha dare and oontrol of the
iIU4RtQfh xang of tbQE4, Inmate* were removed rmxt
the County Psyohopatfa x&?irdto the in8tltutloa...*
579
It osnnot ba Ooubted but th6t thr above tlrsoribod
Iastitution 16 Qcf a oustodial oheraotQr.W
Esoh of the Q4lUOtE4QZitO,Of the l~Q&IEl&tUXs 8QttIng
up thQ QWlitiOatiOXlE fOX XclOi~iOIlt8Of Old a&V a66iEtame
hava oontalmd tlizc
followln~ mgulreaent la Che8e ram words
fcouna in Vernon*6 Annotated Civil Gtatuthr (PO &t. e643-1
Ia), 6345-5 (a) and Iu the 1999 tsmendment by 5. B. #Q, 5~0.
1 (al8
TIO ri3t fit t!l6tinlQ Of 1%00iVi~~ such 6Ib ED.
lmcctt of any public or private ham for th:e aged,
OT 6Xly PUbliO al"CXiVatO iLl6titUtiOtlOf a WOtO%i&l,
OorrsotIcnal, or oW=tivQ aharaatsr, prOVIde6, how-
ever, that 6I.dmy be grantad to persona temporarily
ooufIaQ4 in privat4 Inatltutlonr for n6iTloal or sur-
&?a1 Ocire."
RS believe Che Sonf$Oin$ pTOVi6IOn unegufvooably ax-
01U468 pereon oth6rWIaQ QlisIbl6 to rQ66iVQ old abe aeuiotanoe,
who ar8 Inmetes at suoh an Iu8tl8utloa as desorlbod in your let-
ter, whmther ruoh Instltutlon be pub110 or prlvste. The state
ha8 66~3s other provl8lon for the rupport ana maI6teuance~ of It8
Ihdlgent lnesne and by the forsgolng deol6ratIon th6Le lalsturs
has exprsasly 66niZsEtQd its IntrntIon that ~14 ego asof 8taaoQ
money8 rheuld not be used fcr ruoh purpo8ei This lntsntion
n8 rerf?lrmxl by the Irglrleture la Saotlon 45 cl the Publlo
Wd.faz-8 Aat or 1939 mi. 69550, VQroon~s knuotatsd st:ltute8 Of
Toxe6, which reads in pert,
*X0 prbtlrlon of thlr ALct i8 lntanded tO rb-
lra8e the 00UilbiQ8 and IBUDioipQlitiQE in thlr etrt8
?rom the spsoltic rQ8pouEfbility whfoh 18 oUrrQnt-
ly borne by there ooUntlQ6 ah4 mnlaIpalItI6s In
support of publ.10 welfsre. . . ."
You are thsrefora, advlncd that thQ tmmtg-two InmatQr
Of thQ in6titUtfCn E6KdOU6d in YOUr letter Who htkv8 hQXQfiOfOXW
naelved old ass a86i6taUCQ bahaflt ~@ent6 6rc1 InQlI$lbl~ to
rwelve ruoh peywnta, ~ml tbair IWSM should be rQsotQd from
th6 roll6 Of yOUl’ dE&&rtZ!6Zlt.
Yours very truly
Walt* | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129891/ | QMficeof tly f&tornep dBeneral
&date of ZLexae
DAN MORALES
.ATTORSEY
GENERAL May 2,1994
Honorable Bii Ratliff Opinion No. DM-290
Chair
Education Committee Re: Whether the Code of Ethics and Standard
Texas State Senate Practices for Texas Educators continues to exist
P.O. Box 12068 following the abolition of the Teachers’
Austin, Texas 78711 Professional Practices Commission, and related
questions (RQ-645)
Dear senator RatliE
You ask several questions about the effect of the recent legislative abolition of the
Teachers’ Professional Practices Commission (the “commission”). Subchapter D (sections
13.201 through 13.218) of chapter 13 of the Education Code governs teachers
professional practices. The commission was created pursuant to section 13.203 of that
subchapter. Section 13.202(2) provided that the term “commission,” as it is used in
subchapter D, “means the Teachers’ Professional Practices Commission established by this
subchapter.” Sections 13.202(2) and 13.203 were repeated by the Seventy-third
Legislature, which passed H.B. 2585, a bii which abolished a number of advisory
committees to the Texas Education Agency, providing in pertinent part:
The Teachers’ Professional Practices Commission of Texas is
abolished, and Sections 13.202(2) and 13.203, Education Code, are
repeated.
H.B. 2585, Acts 1993,73d Leg., ch. 771,s 19(29) at 3025.
Fii, you ask whether the Code of Ethics and Standard Practices for Texas
Educators (the “ethics code” or “code”) adopted by the commission continues to exist
following the abolition of the commission. If it does, you ask “what are the means by
which to amend the Code of Ethics and Standard Practices, if any?” You note that section
13.210, which has not been abolished, requires the commission to “develop and adopt a
‘code of ethics and standard practices’ which shag regulate and govern the conduct of
members of the profession.” Id 3 13.210(a). Subsection (d) ofthat section authorizes the
commission “to revise or adopt amendments to the code of ethics and standard practices.”
Zd 5 13.210(d).’
‘scdion13.21qa)ofthcEducationcodcrequirtsthcco mmissionto hold public hcarimgsbefore
developingaad adophg lhc ethics code 8ection 13.210(c) mpim the Texas Education Agency to
submitthepmfesstonslsta&rdstkvela9oibytbecc mmtssionto “all active cutigcsted pmf&oasl
pasonnclina~~todmrmiacapprovalocdiaapprwal~eachindividualstandard.” The
LxlmmtssioaisrequiredtogivethcRsultsofthe tefcmdm ‘cooaiduation bdorc finally adoping lhc
p. 1543
Honorable Bill BatlifT - Page 2 (DM-290)
We believe that the ethics code continues to exist despite the abolition of the
wmmission. The legislature did not repeat subchapter D in its entirety, nor did it repeal
any of the provisions in subchapter D that refer to the ethics code. tie, e.g., id.
$5 13.202(3), ,210, ,211, .213. It is clear that the legislature was purposehdly selective in
repealing only sections 13.202(2) and 13.203, and that it did not intend to repeal the ethics
code.
We also believe that a mechanism exists to amend the ethics code. The ethics code
has been adopted as an administrative rule by the Texas Education Agency. See 19
T.A.C. ch. 177. Given the legislature’s abolition of the commission and retention of the
provisions regardii the ethics code, we believe that the Texas Education Agency has the
implied authority to amend the code. See Educ. Code 5s 11.02, 11.24(a) (“the State
Board of Education shall take actions necessary to implement legislative policy for the
public school system of the state”). Therefore, we conclude that the Texas Education
Agency has the authority to amend the ethics code just as it would any other
administrative rule. See id.; see also Gov’t Code ch. 2001 (Administrative Procedure
Act); 19 T.A.C. ch. 173 (rules governing the Texas Education Agency’s rules and
Nh%ld&l~ process).2
Next, you ask who now has the authority to hear wmplaints filed under subchapter
D. Section 13.213 of the Education Code provides that the wmmission “shag be
authorized to receive written wmplaints from any certified teacher of alleged violation by
any member of the profession of any rule or provision of the code of ethics and standard
practices, and may hear the matter. .” After hearing a complaint, the wmmission is
rewired to “file its recommendations with the commissioner of education and shag also
6le with him a transcript of any evidence presented before it.” Educ. Code $13.213(d).
Section 13.214 of the Education Code authorizes the commissioner to take action based
on the recommendation of the commission. He is not required, however, to adopt the
tindings and recommendations of the wmmission, and may adopt rules of procedure for
the conduct of hearings before him pursuant to subchapter D. See id. 5 13.214(c).’ In
addition, section 13.211 authorizes the wmmissioner to warn or reprimand, or suspend or
revoke the teaching certificate of a teacher who violates the ethics code. Given that the
commission has been abolished and that its recommendations were not binding on the
wmmissioner in the first place, we believe that under sections 13.211 and 13.214 the
(footlao contimlcd)
staodah.” Edoc. Code 0 13.210(c). wo pmfcssionalstandardsdisapprovulin the roferondmovote shall
he adopt&.” Id. 5 13.210(e).
‘WeQaotcoasidcrhuetheanenttowhicbifany,theTucasEducationAgmcywouldk
mqoimdto adhereto the procedmwset forthin section 13.210 in amcndingor rcwisingthe ethics cod%
%e annmitiowr and ammission’s pmcedorcsfor hearingcomplaintsu&r subchapterD am
saforthin~~157.65andchaptcr181ofvolumc19oftheTarasAdministrati~codc. Hearingsand
*.toti= amdmiona gcncmliy arc govan hy chapter 157 of volume 19 of the Texas
Admmmlhcodc.
p. 1544
Honorable Big RatlilT - Page 3 (DM-290)
authority to hear complaints regardmg violations of the ethics code is now vested with the
commissioner. Any complaints that were pending before the commission at the time of its
abolition are now pending before the wmmissioner.4
Finally, you ask “if the Commissioner does decide to reinstate the [commission] in
the futunz, will it retain the same statutory authority it had prior to the repeal of [section]
13.202(2), and [section] 13.203, and wig it have jurisdiction to hear those claims that were
brought to the [commission] prior to the effective date of H.B. 25851” Section 11.958(b)
of newly enacted subchapter H of chapter 11 of the Education Code provides that the
wmmissioner may re-establish any advisory committee provided that it is re-established in
accordance with subchapter H.s Section 11.954 requires the commissioner to adopt rules
that state the purpose of an advisory committee and “describe the task of the wmmittec
and the manner in which the committee will report to the commissioner.” Section 11.954
suggests that the legislature intended to give the commissioner gee rein to establish the
purpose and authority of any m-established advisory wmmittee. Therefore, we believe
that if the commission were m-established, its authority and jurisdiction would depend
upon the rules adopted by the commissioner pursuant to section 11.954.
4WeQnotw~dabercwb*hertheTucaFEducationAg~wouldkrcquircdmadoptncw
mgulatioasto implemeot” a,athori~. See 19 T.AC. 5 157.65, and ch. 181;see a/so 19 T.A.C. ch. 157;
Gov’t Code ch. 2001 (Admmskative FVoahue Act); 19 T.A.C. ch. 173 (rides gowning the Texas
EducatiollAge&s roles and Nlclnaking process).
hbchspm El conlain. provisionsgowning the compositionof advkory canmissions, as well
asthcirselcctionofpmsidingof6cers,rcimbursementdthcirmembcrr’~ and the commiaaiolls’
cvahmtionanddma&n. Educ. Code $8 11.951, ,952, ,953, .955, and ,957.
p. 1545
Honorable Big Ratliff - Page 4 (DM-290)
SUMMARY
The Code of Ethics and Standard Practices for Texas Educators
continues to exist following the abolition of the Teachers’
Professional Practices Commission by the Seventy-third Legislature.
See Acts 1993, 73d Leg., ch. 771, 4 19(29) at 3025. The code of
ethics may be revised or amended by the Texas Education Agency
pursuant to its rulemaking procedures. The authority to hear
complaints regarding violations of the ethics code is now vested with
the wnunissioner of education. Any wmplaints that were pending
before the commission at the time of its abolition are now pending
before the commissioner. If the commission were reestablished, its
authority and jurisdiction would depend upon the rules adopted by
the wmmissioner pursuant to newly enacted section 11.954 of the
Education Code.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fii Assistant Attorney General
DREW DURHAM
Deputy Attorney General for Criminal Justice
WILL PRYOR
special Counsel
RBNBA HICKS
State Solicitor
SARAH J. SHIRLEY
Chair, Opiion Committee
Prepared by Mary R Crouta
Assistant Attorney General
p. 1546 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143984/ | 1 .’ 372
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
‘J .
! i’
[
iiocarable L. A. &'oods, page 8
i$88tlen13 protidina: for ths appltoatlon reada,
in pert, em iollowsr
under ths dlnotlor,, of the foisti
L~#lslnt Pma hdvisOrY UO&dtt98 uuy, sub eat te the pro-
TlUiOnS Of this AOt grutc to the 80h00f su0h an u&our&
of this fund a8 uili, with the Sat8 ad Csuntp avallabl*
funds, tagether with the Zooal -8, maintain the @ma1
r0r a toma not to oxowd nlna (9) moat&mrQP ohr~lri~d
or nrriliabed high rohooln end apprmirsabaly elgbt (s)
month@ for u.aeotedlt~dhi@& mhoolr p%wldad that ti
thb raheol hns surfialent State and Aewty arallab1,
iundo to maintain tbr sobaol far aa rl&t (8) aronthkm
aooording to tha salary sehodulr
Board of Xduoatlon rm the rahool
itr looal maintsnanes
.. -
Hoslanblr 2. A. Koobo, psee a
* The WAmnt of moaoygm!ltmI roxetit;yp*
of aid ;xi.;t hia sohool tuition shall be OH up as a
~siPMLk.eooount bF the dlotrlot nooivlw MIM Md
diebnmggt8 rrom wld aooauntu rhru ba ti oplp
rOOrtb OiiiO ~ucpo~ fOT WEloh AIQh WW#&UR -ted.
. . . It lr provided that all ummed obligatrd bahnoeo
in mrel Ala i?uada in any dlrtrlot oa Auguot81, ohall
be nturned to theStateTPUUWOP uxd by him oro<a4
$0 th0 &ppEQprhtiOa rn# *hiOh it MJ&O#. . ."
@xtkotary wed aa the tmsrerrd Mate aid
fm~llaatlong~ . l .* (Emphasis added)
376
XaAOrablo 1. A. mods, pegs 6
mprovldsd that if there be no oonvmimt aofrodibod high
ash001 that suoh pupil nay obtiin liks ald under the
provi~~onr of thla ~Ssotion &em atbendi% a4 mar hi&
aohool of h&he? olasritLcetion ~!.EUZtte senbiug 0lstriot
whsn designated. by the Gount~ Board, provided that e,ll
sohtml dlstrloto oonteining O&Ohundrsd (100) square nllss ’
0r bsrritoru or mre mm rsoafvs “fvo 3ollars (:SZ.OO) oar
g\rpil'S hOA43 6htriGt. . . .*
Rsadlng Beotion 9, sf X. 8. 280. 933, Aebs 49th a-
h&r%, an4 8. I). XQ. 168, A%%844611Ls~sla$un, tagethar,T t
f,ltzsr$ that $WOehIiS@bs entar into bhs pqsenb Of tuition
c Nrsb, the W ebud apenma urd reoefpt~ of the
#n4ine dlrbrlot mast be aorta
Y dema to daturnb ubdhar wah
UsWlsb is finamfallg abtc b&pay taftlon, uafl lr not, such
btibioa or a part bhenof is paid by the $t+aatier E)swid, trhb
pro ntr oost or tmiohing ia the rcsoeirlng dirtxlab must be
dobennined in $lxil?e: bha rabr. Thir awv or buit:on la plid
by the 3Sake to reimburaa the rsooivlng 434 ~,briot for ths sost
ef baUJha;l~ St3bolr~%is~ iron other dl6$~izf6 whm% high s&ma1
grada are not taught at hoas, and papittnt is made althat@
the x-sosiving dlstrlct may no% ba a m&xy *i& or transporbab~~~
aid sshool. IF. m~oh aauos the bslanal&% of bhe rsasloing dir
brlotts budmt may not enbor into aonsid6ratien. Xouwsr, wk65
a sohool entitled to tultlon iron the atate sesks ths abhor
bSAUrfb8 of the rural aid law aad tlnsnaial aaa5.rtanos tie nunin-
tab its schools for the prssarlbed 1s@h it bd%m, it than
s8mme8 bhm bUdsA of showin& ths qosrsiby for swh riaaaaiaL
a8mlstaAos. The etatote requirrs that it 8ubmi.t a bud&s%ibarair-
la& ib8 oxJmndlturss and 1ts WOtdDbS to substantiats itll 0ld.m
that it is opmetiag at a d6fieIt.
3eotlon 9 pIw5&ss thati %r the aohool is paid ealary
aid, Prhioh is the aaslsbanae dotsx&in%d first la point of tiau,
the tuition to whloh it would hers othsr~~e bean entitlsd shall
be nduced to an wunt 8Wflaient to baltums Its budgrb. TlbkO
is bub another way of providing that w% m&~+y ait% benefits
shall not emmad a balanecsd budgetwhen a11 available amej? to
mhtaiA the 1~4h00lis 06n*iderad a* a resour e or rseelpt,
inaludiai; tuition eared. The reauaia iox thl a provisIon bea0Bi4IE
obvious shen it is noted that un&r S~tiozl 4 bhW@ trmafof8
are lnoluded in dotarmltin~ the Wacbr - p+qil load gonrtimg
salary old aod’gxairanbe PLduplloa~~ia~ af the ooa% at’ taaahlw
a partlcmlar pupil. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4396142/ | DISMISS and Opinion Filed May 9, 2019
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01480-CV
ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Appellant
V.
CHACON AUTOS LTD., Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-17-03130-D
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Whitehill, and Justice Nowell
Opinion by Chief Justice Burns
Before the Court is the parties’ joint motion to dismiss the appeal. The parties inform the
Court that they have settled their differences. We grant the motion and dismiss this appeal. See
TEX. R. APP. P. 42.1(a).
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
181480F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALLSTATE FIRE AND CASUALTY On Appeal from the County Court at Law
INSURANCE COMPANY, Appellant No. 4, Dallas County, Texas
Trial Court Cause No. CC-17-03130-D.
No. 05-18-01480-CV V. Opinion delivered by Chief Justice Burns.
Justices Whitehill and Nowell participating.
CHACON AUTOS LTD., Appellee
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that each party bear its own costs of this appeal.
It is further ORDERED that the obligations of Traveler’s Casualty and Surety Company
of America, as surety on appellant’s supersedeas bond, are DISCHARGED.
Judgment entered May 9, 2019.
–2– | 01-03-2023 | 05-13-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4023655/ | [Cite as State v. Jones, 2016-Ohio-5320.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103359
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARTREL D. JONES
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-592192-A
BEFORE: Kilbane, P.J., McCormack, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: August 11, 2016
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue - Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel A. Cleary
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Martrel Jones (“Jones”), appeals from his convictions
and sentence for aggravated burglary, aggravated robbery, felonious assault, and assault.
For the reasons set forth below, we affirm.
{¶2} In January 2015, Jones and codefendant, Ameer D. Edmonds, Jr.
(“Edmonds”), were charged in a nine-count indictment resulting from a home invasion
and attack on W.S. and her father, G.S.1 Counts 1 and 2 charged Edmonds with the rape
of W.S. Count 3 charged Jones with the rape of W.S. Counts 4 and 5 charged them
both with aggravated burglary. Counts 6 and 7 charged both of them with aggravated
robbery. Counts 8 and 9 charged both of them with felonious assault.2
{¶3} On June 8, 2015, Edmonds entered into a plea agreement with the state of
Ohio, in which he agreed to plead guilty to aggravated burglary and rape. In exchange,
the state dismissed the remaining counts and all of the firearm specifications against him.
As part of the plea agreement, Edmonds agreed to testify truthfully in court. That same
day, the charges against Jones proceeded to a jury trial. The following testimony was
presented at trial.
{¶4} W.S. testified that on December 15, 2014, she lived with her father G.S. on
East 75th Street in Cleveland. That evening, she was in the kitchen preparing food when
1As of the date of this opinion, Edmonds has not filed an appeal.
2Each of Counts 1-9 included a one- and three- year firearm specification.
she heard a knock at the door. She went to the door and asked who was there. A voice
on the other side of the door said “your brother.” She knew it was not her brother because
it was approximately 1:00 a.m., so she went into her bedroom to look out the window and
see who was knocking at her door. She observed two men dressed in black. She
immediately knew something was wrong and attempted to call 911, but the men kicked
the front door in and entered the house. She then took her phone and threw it under a
piece of furniture.
{¶5} Edmonds entered first, and Jones was behind him. Both Edmonds and
Jones were wearing hooded sweatshirts and gloves, and both had guns. W.S. recognized
Jones immediately because she met him approximately one month prior to the incident.
Jones supplied W.S. with $90 worth of marijuana about three weeks earlier and wanted
her to sell it. At the time he gave it to her, she did not pay him for it. Rather than sell it,
W.S. used it herself. Jones then wanted the $90 from W.S. He constantly brought the
issue up with her when they saw each other at Jones’s brother’s house and when he spoke
with her on the telephone. W.S. did not know Edmonds’s identity at first, but was
eventually able to identify him through social media.
{¶6} W.S. testified that after the two men entered the house, Jones went into her
father’s bedroom and Edmonds took her into her room. She could hear Jones yelling in
the next room. At times, she could hear her father being thrown around his room.
While in her bedroom, Edmonds pointed his gun at her and demanded money. She told
him she did not have any money. Edmonds told her to lift the couch cushions and go
through all of her clothing to look for money. W.S. was afraid for her life and her
father’s life, so she offered sex in exchange for the money she owed Jones. She stated
that she only offered the sex out of fear, to save her and her father. Edmonds told her to
undress and bend over the arm of the couch. Edmonds then had sexual intercourse with
W.S. for approximately ten minutes when Jones came into the room.
{¶7} Jones entered and told Edmonds to hurry up. In response, Edmonds told
Jones that he was not finished and Jones left the room. At this point, W.S. heard her
father in the kitchen being hit and thrown. Edmonds finished, and Jones reentered the
room. When Jones reentered the room, he began to threaten W.S., asking her about his
money. W.S. testified that she gave him $40 approximately a week earlier, but she
needed more time to get Jones the remaining $50. W.S. pleaded with him as he pressed
his elbow on her neck and held the gun at her face. Jones told her that he should just
shoot her.
{¶8} W.S. offered to have sex with him to calm him down, but Jones declined.
Jones stated that she could perform oral sex on him instead. While she was performing
oral sex on Jones, Jones threatened W.S. and hit her. At one point, Edmonds entered the
room. Jones told him to leave and go watch G.S. Jones stopped after about 15 minutes,
and he and Edmonds left the house. W.S. estimated that they were in the house for about
40 minutes. After they left, she went to her sister’s house and called 911.
{¶9} Cleveland Police Officer Michael Harper (“Officer Harper”) testified that
he responded to a call at East 75th Street in Cleveland for a break-in with a possible rape
and pistol whipping. When he arrived, he noticed that the door was kicked in and both
W.S. and G.S. were visibly shaken. He spoke with G.S., who had visible injuries to his
face, while his partner spoke with W.S. Both G.S. and W.S. were transported to
MetroHealth Hospital. At the hospital, W.S. went through a sexual assault exam with a
Sexual Assault Nurse Examiner (“SANE”).
{¶10} G.S. testified that on the night of the incident, he was awakened by someone
ruffling him. He was then hit in the head with a gun and kicked twice in the torso. His
assailant, later identified as Jones, dragged him through the doorway and dropped him to
the floor. Jones told G.S. that he was upset with him for ignoring his phone calls. At
that point G.S. recognized that his assailant was Jones, who was one of W.S.’s friends.
G.S. testified that Jones had been to their house before, and he had spoken to Jones on the
phone when he has called for W.S.
{¶11} Thereafter, G.S. observed W.S.’s bedroom door open and another male,
later identified as Edmonds, exit the room. Edmonds was wearing gloves and holding a
gun. Edmonds then stayed with G.S. as Jones went into W.S.’s room. Edmonds asked
G.S. if he had any money. G.S. replied “no,” but removed some change from his pocket
and let it fall on the floor. Edmonds did not take the money. G.S. sat with Edmonds
until he went into W.S.’s room and got Jones. The two men then left the house. W.S.
exited the room and told G.S. that she was raped.
{¶12} Edmonds testified for the state of Ohio. He explained that he had been
charged as a codefendant in this case and described his plea agreement with the state.
Edmonds further testified that he met Jones approximately two or three years prior to this
incident. On the night of the incident, he accompanied Jones as Jones was driving
around in his car. Jones asked Edmonds to come with him to East 75th Street. They
went to G.S.’s house. While at the door, Edmonds heard Jones say, “this is your
brother.” The door was open and both men walked inside. Edmonds was not sure how
the door opened because he was behind Jones. When they entered the house, Jones
began asking for money. Edmonds testified that Jones started with G.S., asking him
“where’s the money at?” Edmonds thought that both people in the house owed Jones
money by what was being said to each of them. As he was asking for money, Jones had
a gun in his hand. Edmonds watched as Jones hit G.S. with the gun and kick him.
{¶13} Edmonds stated that W.S. was pleading with them to stop because they did
not have any money. She then offered to perform oral sex to get them to stop. W.S.
preformed oral sex on Edmonds in a bedroom. Edmonds testified that he did not have
vaginal sex with W.S. He stopped W.S. before he ejaculated because he could tell that
W.S. did not want to perform oral sex, and she seemed afraid. He stated that when they
stopped, he left the room and Jones entered the room. W.S. then performed oral sex on
Jones. Edmonds was in the kitchen with G.S. as Jones was in the room with W.S. After
a few minutes, he went into the bedroom and got Jones. At that moment, Jones grabbed
W.S. and threatened to put her in the trunk of his car. Edmonds talked him out of that,
and then they left the home.
{¶14} Hristina Lekova (“Lekova”), a Forensic DNA Analyst for the Cuyahoga
County Regional Forensic Science Laboratory, testified that she tested the contents of the
sexual assault kit collected by the SANE nurse. She found seminal fluid, but was unable
to make any scientific conclusions as to whose DNA was present, other than W.S.’s.
Lekova further testified that she could neither include or exclude Jones or Edmonds from
the DNA analysis.
{¶15} At the conclusion of trial, the jury found Jones not guilty of Count 3 (rape),
guilty of Counts 4 and 5 (aggravated burglary), guilty of Counts 6 and 7 (aggravated
robbery), and guilty of Count 9 (felonious assault of G.S.). The jury found Jones not
guilty of felonious assault as charged in Count 8, but guilty of the lesser included offense
— assault. The jury also found Jones guilty of each of the one-year firearm
specifications and not guilty of each of three-year firearm specifications.
{¶16} At sentencing, the state conceded that Counts 4 and 5 (both aggravated
burglary) merge for purposes of sentencing and elected to proceed on Count 4. The court
also merged the firearm specification in Count 9 with Count 7. The court then sentenced
Jones to one year in prison on each of the firearm specifications in Counts 4, 6, and 7, to
be served prior and consecutive to the base charges, for a total of three years in prison.
The court ordered eight years in prison on each of Counts 4, 6, and 7, to be served
concurrently, for a total of eight years in prison. The court sentenced Jones to six months
in prison on Count 8 to be served concurrently to the other counts, for an aggregate
sentence of 11 years in prison.
{¶17} Jones now appeals, raising the following five assignments of error for
review.
Assignment of Error One
The state failed to present sufficient evidence to sustain a conviction against
[Jones].
Assignment of Error Two
[Jones’s] conviction is against the manifest weight of the evidence.
Assignment of Error Three
The trial court committed reversible error when it failed to give the jury the
accomplice testimony instruction.
Assignment of Error Four
[Jones] was denied effective assistance of counsel as guaranteed by Section
10, Article I, of the Ohio Constitution and the Sixth and Fourteenth
Amendments.
Assignment of Error Five
The trial court erred in violation of [Jones’s] statutory and constitutional
rights by imposing a harsher sentence for [Jones] who exercised his right to
a jury trial compared with a co-defendant who entered a plea.
Sufficiency of the Evidence
{¶18} In the first assignment of error, Jones argues the state failed to establish that
he was guilty of the crimes for which he was convicted. Specifically, he challenges the
aggravated robbery conviction involving G.S.
{¶19} The Ohio Supreme Court in State v. Diar, 120 Ohio St. 3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St. 3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St. 3d
259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.
{¶20} We are mindful that, in considering the sufficiency of evidence, a certain
perspective is required. State v. Eley, 56 Ohio St. 2d 169, 172, 383 N.E.2d 132 (1978).
“This court’s examination of the record at trial is limited to a determination of whether
there was evidence presented, ‘which, if believed, would convince the average mind of
the defendant’s guilt beyond a reasonable doubt.’” Id., quoting Atkins v. State, 115 Ohio
St. 542, 546, 155 N.E. 189 (1926). It is the minds of the jurors, rather than a reviewing
court, that must be convinced. State v. Thomas, 70 Ohio St. 2d 79, 80, 434 N.E.2d 1356
(1982).
{¶21} In the instant case, Jones was convicted of aggravated robbery in violation
of R.C. 2911.01(A)(1), which provides that: “[n]o person, in attempting or committing a
theft offense * * *shall * * * [h]ave a deadly weapon on or about the offender’s person or
under the offender’s control and either display the weapon, brandish it, indicate that the
offender possesses it, or use it[.]”
{¶22} Jones argues that there was no evidence that he ever demanded any money
from G.S. As a result, he contends that he cannot be convicted of aggravated robbery.
Jones’s argument, however, ignores Edmonds’s testimony that he heard Jones demand
money from G.S. and hit G.S. in the head with a gun. Jones asked G.S. “where’s the
money at?” When viewing this evidence in a light most favorable to the state, any
rational trier of fact could have found the essential elements of aggravated robbery proven
beyond a reasonable doubt.
{¶23} Therefore, the first assignment of error is overruled.
Manifest Weight of the Evidence
{¶24} In the second assignment of error, Jones claims that his aggravated robbery
conviction involving G.S. is against the manifest weight of the evidence. In contrast to a
sufficiency argument, a manifest weight challenge questions whether the state met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598,
¶ 13, citing Thompkins, 78 Ohio St. 3d at 390, 1997-Ohio-52, 678 N.E.2d 541. The Ohio
Supreme Court in State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, stated:
[T]he reviewing court asks whose evidence is more persuasive — the
state’s or the defendants? * * * “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
with the factfinder’s resolution of the conflicting testimony.” [Thompkins
at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S. Ct. 2211, 72
L. Ed. 2d 652.
{¶25} Moreover, an appellate court may not merely substitute its view for that of
the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight
grounds is reserved for “‘the exceptional case in which the evidence weighs heavily
against the conviction.’” Id., quoting Martin.
{¶26} We note that when considering a manifest weight challenge, the trier of fact
is in the best position to take into account inconsistencies, along with the witnesses’s
manner, demeanor, gestures, and voice inflections, in determining whether the proffered
testimony is credible. State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶
26; see also State v. Lilliard, 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385,
2013-Ohio-4906, ¶ 93 (in considering the credibility of witnesses on a manifest weight
challenge, an appellate court is “guided by the presumption” that the jury, or the trial
court in a bench trial, is “‘best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.’” Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77,
80, 461 N.E.2d 1273 (1984)). Therefore, we afford great deference to the factfinder’s
determination of witness credibility. State v. Ball, 8th Dist. Cuyahoga No. 99990,
2014-Ohio-1060, ¶ 36.
{¶27} Here, Jones claims the “jury lost its way” because the jury wanted to convict
someone besides Edmonds. He further claims there is no credible evidence that Jones
committed aggravated robbery as it relates to G.S.
{¶28} While Edmonds may have had an ulterior motive when testifying, the jury
observed his appearance and demeanor, heard the testimony about the plea deal he
received, and found his testimony to be credible. Moreover, G.S. and W.S. knew Jones
and recognized him as the individual who committed the crimes. Thus, we find that the
conviction is not against the manifest weight of the evidence. We cannot say that the
jury lost its way and created a manifest injustice in convicting Jones.
{¶29} Accordingly, the second assignment of error is overruled.
Jury Instructions
{¶30} In the third assignment of error, Jones argues the trial court failed to instruct
the jury on accomplice liability. A review of the record, however, reveals that the trial
court did, in fact, instruct the jury on accomplice testimony. The trial court stated:
Now, I have two additional short matters and you’re going to be done
hearing my voice for a little bit. First, the testimony of an accomplice.
Ameer Edmonds testified claiming to be the accomplice of the defendant,
Martrel D. Jones. The testimony of an accomplice does not become
inadmissible because of his complicity, moral turpitude or self-interest, but
the admitted or claimed complicity of a witness may affect his credibility
and make his testimony subject to grave suspicion and require that it be
weighed with great caution.
It is for you, as jurors, in light of all the facts presented to you from the
witness stand to evaluate such testimony and to determine its quality and
worth or its lack of quality and worth. This is an instruction Ohio law
gives any time a witness testifies claiming to be an accomplice.
{¶31} The trial court’s instruction was a verbatim recitation of the requirements of
R.C. 2929.03(D) as it pertains to accomplice testimony. Moreover, at appellate oral
argument, appellant’s counsel acknowledged that the trial court gave the proper
instruction on accomplice testimony.
{¶32} Accordingly, Jones’s argument is unpersuasive, and the third assignment of
error is overruled.
Ineffective Assistance of Counsel
{¶33} In the fourth assignment of error, Jones argues defense counsel was
ineffective for failing to request a jury instruction on accomplice testimony. However, as
discussed in the previous assignment of error, the trial court did instruct the jury as
required by R.C. 2929.03(D).
{¶34} Therefore, we find Jones’s argument unpersuasive, and overrule the fourth
assignment of error.
Sentence
{¶35} In the fifth assignment of error, Jones argues the trial court erred when it
sentenced him to a greater sentence (11 years in prison) for exercising his right to trial
when compared with Edmonds’s five-year sentence after entering into a plea.
{¶36} In State v. Marcum, Slip Opinion No. 2016-Ohio-1002, the Ohio Supreme
Court, in recently “address[ing] the standard of review that appellate courts must apply
when reviewing felony sentences,” stated that when “[a]pplying the plain language of
R.C. 2953.08(G)(2), * * * an appellate court may vacate or modify a felony sentence on
appeal only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is otherwise
contrary to law.” Id. at ¶ 1.
{¶37} Here, Jones’s 11-year sentence is within the statutory range for the offenses
he committed. Moreover, while R.C. 2929.11(B) requires consistency in sentencing, this
“consistency” does not require that codefendants receive equal sentences. State v. Pruitt,
8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 26, citing State v. Nelson, 11th Dist.
Lake No. 2008-L-072, 2008-Ohio-5535. Instead, an appellate court must examine the
record to determine “whether the sentence is so unusual as to be outside the mainstream
of local judicial practice. Although the offense may be similar, distinguishing factors
may justify dissimilar treatment.” State v. Dawson, 8th Dist. Cuyahoga No. 86417,
2006-Ohio-1083, ¶ 31, quoting State v. Turner, 8th Dist. Cuyahoga No. 81449,
2003-Ohio-4933.
{¶38} In reviewing the record, we note that Jones has not provided any evidence
that his sentence was a result of him invoking his constitutional right to a jury trial.
Jones was convicted of two counts of aggravated burglary, two counts of aggravated
robbery, felonious assault, and assault. He was also convicted of several one-year
firearm specifications. Whereas, Edmonds pled guilty to one count of aggravated
burglary and one count of rape. The evidence demonstrated that Jones was the
mastermind behind the home invasion and was sentenced accordingly.
{¶39} Therefore, the fifth assignment of error is overruled.
{¶40} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
TIM McCORMACK, J., and
ANITA LASTER MAYS, J., CONCUR | 01-03-2023 | 08-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4023665/ | No. 55 August 11, 2016 211
IN THE SUPREME COURT OF THE
STATE OF OREGON
Jan WYERS,
as Personal Representative of the Estate of
Dianne Terpening, Deceased,
Respondent on Review,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation,
Petitioner on Review.
091014750; CA A149258 (Control)
Hazel CORNING,
Respondent on Review,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation,
Petitioner on Review.
091116570; A149259
Violet ASBURY,
Respondent on Review,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation,
Petitioner on Review.
091116571; CA A149260
Stacey WEBB,
Respondent on Review,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation,
Petitioner on Review.
091116572; CA A149261
212 Wyers v. American Medical Response Northwest, Inc.
Michele SHAFTEL,
Respondent on Review,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation,
Petitioner on Review.
091216650; CA A149262
Natsue AKRE,
Respondent on Review,
v.
AMERICAN MEDICAL RESPONSE NORTHWEST, INC.,
an Oregon corporation,
Petitioner on Review.
100202934; CA A149263
(SC S063000)
On review from the Court of Appeals.*
Argued and submitted November 9, 2015.
Michael J. Estok, Lindsay Hart, LLP, Portland, argued
the cause and filed the briefs for petitioner on review. With
him on the briefs was James L. Dumas, Lindsay Hart, LLP,
Portland.
Mark McDougal and Gregory Kafoury, Kafoury &
McDougal, Portland, argued the cause and filed the briefs
for respondents on review.
Lindsey H. Hughes, Keating Jones Hughes, P.C.,
Portland, filed the brief for amicus curiae Oregon Association
of Defense Counsel.
Erin K. Olson, Law Office of Erin Olson, P.C., Portland,
filed the brief for amicus curiae Oregon Trial Lawyers
Association.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices.**
______________
** Appeal from Multnomah County Circuit Court, Kathleen M. Dailey,
Judge. 268 Or App 232, 342 P3d 129 (2014).
** Linder, J., retired December 31, 2015, and did not participate in the deci-
sion of this case. Nakamoto, J., did not participate in the consideration or decision
of this case.
Cite as 360 Or 211 (2016) 213
LANDAU, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Case Summary: Plaintiffs each filed a civil action under the vulnerable per-
son statute, ORS 124.100(5), against an ambulance company, American Medical
Response Northwest, Inc. (AMR), alleging that AMR had permitted a paramedic
in its employ to sexually abuse the plaintiffs while they were patients. The trial
court granted AMR’s motion for summary judgment, plaintiffs appealed, and the
Court of Appeals reversed. AMR petitioned for review, and the Supreme Court
allowed review and consolidated the appeals. Held: (1) ORS 124.100(5) requires
that a defendant knowingly act or fail to act under circumstances in which a
reasonable person should have known that the same sort of abuse of a vulnerable
person that occurred would, in fact, occur; and (2) on summary judgment, the
evidence was sufficient to establish a general issue of material fact about whether
a reasonable person in AMR’s position should have known that the sort of abuse
that plaintiffs suffered would occur. The decision of the Court of Appeals is
affirmed. The judgment of the circuit court is reversed, and the case is remanded
to the circuit court for further proceedings.
214 Wyers v. American Medical Response Northwest, Inc.
LANDAU, J.
This consolidated appeal concerns six civil actions
against an ambulance company for permitting a paramedic
in its employ to sexually abuse women while they were
patients. The claims are alleged under ORS 124.100(5),
which authorizes a vulnerable person to bring an action
against a person who “permit[s]” another person to engage
in physical or financial abuse “if the person knowingly acts
or fails to act under circumstances in which a reasonable
person should have known” of the abuse. The ambulance
company moved for summary judgment on the ground that
there was no evidence that it actually knew of its para-
medic’s abuse against plaintiffs and then acted in a way
that permitted that abuse to occur. The trial court agreed
and granted the motion. The Court of Appeals reversed, con-
cluding that the statute does not require actual knowledge
of a plaintiff’s abuse. Wyers v. American Medical Response
Northwest, Inc., 268 Or App 232, 342 P3d 129 (2014). For
the reasons that follow, we affirm the decision of the Court
of Appeals and reverse the judgment of the trial court.
I. BACKGROUND
Because the trial court granted a defense motion for
summary judgment, we state the facts in the light most favor-
able to plaintiffs. Shell v. Schollander Companies, Inc., 358
Or 552, 554 n 1, 369 P3d 1101 (2016). Defendant American
Medical Response Northwest, Inc., (AMR) provides ambu-
lance and other medical transportation services. AMR
employed Haszard as a paramedic. This case arises out of
multiple allegations of sexual abuse by Haszard of patients
while they were being transported in AMR ambulances.
A. The Herring Litigation
In late 2007, AMR transported a female patient,
Herring, to a hospital. During Herring’s transport, Haszard
placed his hand on Herring’s hand and shoved their hands
down inside the front of her pants. Later at the hospi-
tal, Herring screamed to staff about the incident, which
prompted a call to AMR. An employee of AMR’s spoke with
Herring at the hospital and later called police to report that
Herring wanted to make a complaint about ambulance staff.
Cite as 360 Or 211 (2016) 215
Police responded and, as part of their investigation, discov-
ered in their database a prior complaint about Haszard.
Three days later, police arrested Haszard. The
arrest resulted in publicity, which prompted other women to
come forward and report similar incidents to the authorities.
Haszard was eventually charged with various crimes and
pled guilty to attempted first-degree sexual abuse as to four
women. Not long after the Herring incident, Herring and a
number of other former patients filed individual common-
law battery and negligence actions against both Haszard
and AMR. Herring eventually obtained a jury verdict in her
favor. See Herring v. American Medical Response Northwest,
255 Or App 315, 327, 297 P3d 9 (2013) (affirming judgment),
and the other former patients settled.
B. Discovery of Earlier Incidents of Abuse
As part of pretrial discovery in the Herring litiga-
tion, other former patients were contacted and interviewed
about their ambulance transport experiences with AMR
in general and with Haszard in particular. That process
revealed that additional women—including the six plaintiffs
in this case—had been inappropriately touched by Haszard
during ambulance transport.
1. Spain
The first incident occurred in February 2006 and
involved Spain, who awoke from unconsciousness in the back
of an AMR ambulance to find Haszard pressing her hand on
his crotch and rocking back and forth. She later called a
business number for AMR and told the receptionist that the
paramedic was a “freak” who had inappropriately touched
her, that it was unsafe for that paramedic to transport little
girls, and that he should be taken off ambulance duty. When
asked, the receptionist declined to provide Spain with the
paramedic’s name. Spain’s sister witnessed the phone call
and later recalled that Spain had told her that the recep-
tionist had hung up on Spain.
AMR, which had in place a regular process for han-
dling ambulance staff complaints, had no record of the tele-
phone call from Spain.
216 Wyers v. American Medical Response Northwest, Inc.
2. Whalen
A month later, in March 2006, AMR sent custom-
ers a survey. One of those customers, Whalen, reported in
her survey that Haszard had failed to respect her privacy at
the hospital by not looking away while a nursing assistant
helped her into a gown, despite her obvious discomfort. One
of AMR’s supervisors investigated the complaint by inter-
viewing both Whalen and Haszard. During that interview,
Whalen told the supervisor that Haszard had stared at her
and acted sexually aroused, but she made no complaint
about any unwanted touching. She later recalled that the
supervisor had “dismissed everything that [she had] said,”
telling her that she “must have been imagining things.” The
supervisor, however, did write an internal report recounting
Whalen’s complaint that Haszard had not shown sufficient
consideration for her privacy and concluding that Whalen’s
complaint had been “substantiated.”
3. Plaintiff Akre
In April 2006, Akre was transported by an AMR
ambulance attended by Haszard. She had trouble breath-
ing, was choking, and feared for her life. During her trans-
port, Haszard repeatedly brushed her bare chest while
placing leads on her. She was afraid to tell Haszard to stop,
because she thought that Haszard would harm her. She did
not report the incident to AMR or to anyone else.
4. Rotting
In December 2006, Rotting was transported by
AMR ambulance with Haszard attending. During the trans-
port, Haszard touched Rotting in a manner similar to the
sexual touching that plaintiff Akre had described. He also
slowly stroked Rotting’s thigh. Rotting reported the incident
to a nurse and to family members. Her son called AMR and
spoke with the same supervisor who had investigated the
Whalen complaint. The supervisor then called Rotting and
told her that there would be an investigation. The inves-
tigation, however, was limited to interviewing Haszard,
who denied having engaged in any inappropriate conduct.
Rotting’s son later called AMR again, this time stating that
the police should be involved. AMR took no further action,
Cite as 360 Or 211 (2016) 217
although its risk management department was internally
notified that Rotting might file a complaint.
5. Plaintiffs Shaftel, Asbury, and Terpening
In January 2007, plaintiff Shaftel was transported
by AMR ambulance, attended by Haszard. While Shaftel
went in and out of consciousness in the ambulance, Haszard
repeatedly touched her bare chest. About three weeks
later, plaintiff Asbury, age 73, also was sexually touched by
Haszard during an ambulance transport. And three weeks
after that, plaintiff Terpening, who was hearing impaired,
was also.1 None of those three women reported Haszard’s
conduct to AMR, the police, or hospital staff.
6. Pries
In March 2007, Pries reported to police that Haszard
had sexually abused her during an ambulance transport by
taking her hand, placing it inside her pants, and manipulat-
ing it. Police spoke with an AMR supervisor about the inci-
dent. Several AMR employees, including Haszard, then met
with a company risk-management official. AMR ultimately
determined that it could not substantiate Pries’s allegations,
but it warned Haszard in writing that either that incident or
the earlier Rotting incident would be reopened if more infor-
mation came to light. AMR did not make any effort to con-
tact Pries, did not request any further information from the
police, and did not tell police about the Rotting complaint
from the previous year.
7. Plaintiffs Webb and Corning
In April 2007, Haszard sexually touched plaintiff
Webb during an ambulance transport, while she went in and
out of consciousness. Four months after that, Haszard also
sexually touched plaintiff Corning, then 86, during a trans-
port. Neither plaintiff Webb nor plaintiff Corning reported
the incidents to AMR, and the company did not learn about
them until discovery in the Herring litigation.
C. Initiation and Disposition Below of Plaintiffs’ Claims
Plaintiffs Akre, Shaftel, Asbury, Terpening, Webb,
and Corning individually brought civil actions against AMR
1
Terpening is now deceased. Plaintiff Wyers serves as the personal repre-
sentative of her estate.
218 Wyers v. American Medical Response Northwest, Inc.
for permitting another person—Haszard—to sexually abuse
them, in violation of ORS 124.100. Each of their complaints
alleged that AMR knew or had reason to know that Haszard
had physically abused ill or injured female patients in the
past and that he was likely to do so in the future if allowed
to be alone with them in the back of an ambulance. Their
complaints further alleged that AMR nonetheless directed
Haszard to continue to work in those circumstances, result-
ing in their abuse. The six cases were consolidated for trial.
AMR moved for summary judgment, arguing that,
to establish liability under ORS 124.100(5), plaintiffs must
produce evidence that it either participated in or knowingly
permitted Haszard to commit the specific acts of abuse
that were the bases for plaintiffs’ claims. In this case, AMR
argued, it is undisputed that it had no knowledge of any of
those acts of abuse before they occurred. Plaintiffs responded
that ORS 124.100(5) does not require proof of actual knowl-
edge of their abuse. They argued that, instead, the statute
requires only that AMR acted or failed to act when it should
have known that such abuse was likely to occur and that, in
light of earlier complaints about Haszard, AMR should have
known that he was likely to abuse them.
The trial court agreed with AMR, concluding that
the statute requires proof that AMR “had knowledge of the
specific abuse that * * * Haszard allegedly committed on each
[p]laintiff.” Finding an absence of evidence that AMR had
been aware of Haszard’s abuse of plaintiffs until long after
that abuse had occurred, the court granted AMR’s motion
for summary judgment and dismissed plaintiffs’ claims.
Plaintiffs appealed, and the Court of Appeals
reversed. Wyers, 268 Or App at 255. That court reasoned
that ORS 124.100(5) did not require plaintiffs to establish
that AMR subjectively knew that Haszard was engaging in
misconduct with plaintiffs at the time that that misconduct
was occurring. Id. at 246-47. Rather, that statute required
only that AMR “have knowledge of facts establishing that it
knew of the substantial risk of the abuse actually suffered.”
Id. at 247. The court ultimately concluded that a defendant
“permit[s]” the abuse at issue if the defendant either “acted
or failed to act with knowledge that would lead a reasonable
Cite as 360 Or 211 (2016) 219
person to conclude that the plaintiff was being abused or
would likely be abused in the manner alleged by the plain-
tiff.” Id. Applying that standard to this case, the court deter-
mined that plaintiffs had presented “sufficient evidence
from which a reasonable juror could find that [AMR had]
‘permitted’ Haszard to sexually abuse plaintiffs.” Id. at 255.
We allowed review to address the parties’ arguments about
the meaning of the requirements set out in ORS 124.100(5).
II. ANALYSIS
A. Interpretation of ORS 124.100(5)
ORS 124.100 through ORS 124.140 set out a frame-
work that creates a civil action for abuse of a vulnerable
person. ORS 124.100(2) provides:
“A vulnerable person who suffers injury, damage or
death by reason of physical abuse or financial abuse may
bring an action against any person who has caused the
physical or financial abuse or who has permitted another
person to engage in physical or financial abuse.”
A “vulnerable person” is a person who is elderly, financially
incapable, or incapacitated, or, in certain circumstances,
has a disability.2 ORS 124.100(1)(e). “Physical abuse,” for
the purpose of the statute, includes sexual abuse. ORS
124.105(1)(e)-(h).
ORS 124.100(5) identifies the particular require-
ments for bringing an action for permitting another to
engage in physical or financial abuse:
“An action may be brought under this section against
a person for permitting another person to engage in phys-
ical or financial abuse if the person knowingly acts or fails
to act under circumstances in which a reasonable person
should have known of the physical or financial abuse.”
By its terms, that statute refers both to a requirement that
the defendant “knowingly” act and that the defendant do so
under circumstances in which a reasonable person “should
have known” of the abuse. Not surprisingly, the parties seize
2
AMR does not dispute that plaintiffs were “vulnerable persons” within the
meaning of the statute.
220 Wyers v. American Medical Response Northwest, Inc.
on one of those two references to the virtual exclusion of the
other.
AMR highlights the reference to “knowing[ ]” action
or inaction, and argues that “ORS 124.100(5) requires proof
that the defendant engaged in ‘knowing’ and ‘intentional’
misconduct.” AMR briefly acknowledges the subsequent
statutory reference to what a reasonable defendant “should
have known,” but asserts that it “cannot undo the actual
knowledge requirement stated earlier.” (Emphasis in orig-
inal.) AMR attempts to reconcile the apparent conflict by
reading the statute to require actual knowledge of the con-
duct that constitutes the abuse while perhaps not actually
knowing—but in circumstances in which it should have
known—that the conduct constituted a crime qualifying as
abuse within the meaning of the statute.
Plaintiffs highlight the reference to what a defen-
dant “should have known” in ORS 124.100(5), arguing that
liability depends on proof that a reasonable person merely
“should have known” of the abuse. In plaintiffs’ view, AMR’s
reading of that phrase is nonsensical—citing by way of exam-
ple evidence that a defendant permitted another to commit
such abusive acts as rape and sodomy under circumstances
in which the defendant, while perhaps not actually knowing
that those acts are prohibited forms of abuse, nevertheless
should have known that fact. At the same time, plaintiffs
not once in their brief explain the significance of the stat-
ute’s reference to “knowingly act[ ] or fail[ ] to act.”
We are thus confronted with an issue of statutory
construction, requiring us to determine the meaning of the
statute that the legislature most likely intended, based on
an examination of its text in context, legislative history, and
pertinent rules of construction. State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009). We begin with the text of the
statute, which as we have noted authorizes an action against
a defendant who has permitted abuse of a vulnerable per-
son if the defendant “knowingly acts or fails to act under
circumstances in which a reasonable person should have
known of the * * * abuse.” ORS 124.100(5). The statute sets
out two different mental states—one that appears to refer to
actual knowledge and the other that refers to constructive
Cite as 360 Or 211 (2016) 221
knowledge. It is an awkwardly phrased bit of drafting, to
say the least. And the parties’ difficulty in reconciling the
two is understandable. We cannot, however, pick one mental
state and ignore the other, as the parties effectively propose.
We are obligated to take a statute as we find it and give
effect to all of it, if possible. See, e.g., Force v. Dept. of Rev.,
350 Or 179, 190, 350 P3d 139 (2011) (“Statutory provisions,
however, must be construed, if possible, in a manner that
will give effect to all of them.” (Internal quotation marks
omitted.)); see also ORS 174.010 (“[W]here there are several
provisions or particulars such construction is, if possible, to
be adopted as will give effect to all.”).
In this case, the key to complying with that obli-
gation lies in recognizing that statutory references to cul-
pable mental states always refer to an object; said another
way, a mental state is always “directed toward something.”
State v. Crosby, 342 Or 419, 428, 154 P3d 97 (2007). That
“something” to which a mental state is directed may be
particular conduct, or it may be the circumstances in which
conduct occurs, or it may be a particular result. Id. at 428-
29. Knowledge as to conduct, for example, can refer to an
awareness of a bodily movement or knowledge of the essen-
tial character of an act, as when a criminal statute requires
proof of knowledge of the “assaultive nature” of a defendant’s
conduct. State v. Barnes, 329 Or 327, 337-38, 986 P2d 1160
(1999). In contrast, knowledge as to circumstances can refer
to awareness of particular facts while prohibited conduct is
being committed, as, for example, a criminal statute requir-
ing proof of knowledge of the age of the person to whom a
defendant has sold drugs. State v. Blanton, 284 Or 591, 593,
588 P2d 28 (1978).
ORS 124.100(5) does refer to two different mental
states. But the object of each of those references to a men-
tal state is significantly different. First, the statute requires
proof that a defendant “knowingly act[ed] or fail[ed] to act.”
In that phrase, the adverb “knowingly” modifies conduct,
namely, acting or failing to act. It does not refer to knowl-
edge of particular circumstances. Nor does it refer to knowl-
edge of any particular result. It refers to the quality of the
defendant’s conduct—“knowing[ ],” as opposed to accidental,
reckless, or something else.
222 Wyers v. American Medical Response Northwest, Inc.
To be sure, the particular “act[ ]” or “fail[ure] to act”
that the defendant must “knowingly” commit is conduct that
“permit[s]” another person to engage in prohibited abuse.
ORS 124.100(5). AMR argues that the use of the term “per-
mit” necessarily implies that the one doing the permitting
must have actual knowledge of the conduct that has been
permitted. It is not an unreasonable argument. In ordi-
nary usage, the word “permit” can be used to connote active
authorization. Webster’s, for example, lists among its defini-
tions of the verb “to consent to expressly or formally * * * to
give (a person) leave,” Webster’s Third New Int’l Dictionary
1683 (unabridged ed 2002), suggesting that the actor has
full knowledge of what is being permitted.
But AMR’s reliance on that definition of the word
“permit” is unavailing for several reasons. First, ORS
124.100(5) itself does not say that a defendant must “know-
ingly permit” abuse to occur. Rather, the word “knowingly”
modifies “acts or fails to act.” Second, the ordinary meaning
of the word “permit” is not necessarily as narrow as AMR
suggests. In common usage, the word “permit” is also used
to refer to an act or failure to act that has the effect of mak-
ing something possible, without mention of intention as to
the result. Webster’s, for example, also provides that “permit”
can mean “to make possible[;] * * * to give an opportunity.”
Id.; see also American Heritage Dictionary of the English
Language 1315 (5th ed 2011) (“[t]o afford opportunity or
possibility”). Third, the effect of AMR’s reading is to create
the sort of conflict between mental state requirements that
we have just noted that we are obligated to avoid, if possible.
If the statute requires a defendant to have knowledge of the
facts or circumstances of the abuse, then the later reference
to a requirement that a reasonable defendant “should have
known” of those very facts or circumstances makes no sense.
See also generally Moore v. Willis, 307 Or 254, 259, 767 P2d
62 (1988) (allegation that person knew something is differ-
ent from allegation that person “should have known” some-
thing; former amounts to ultimate fact, but latter requires
judgment about particular set of circumstances from which
conclusions must be drawn).
Taking ORS 124.100(5) as it is written, it states
that what a defendant must know is the character or nature
Cite as 360 Or 211 (2016) 223
of the defendant’s act or failure to act. That act or failure to
act must have the effect of permitting abuse to occur. But
the effect of that act or failure to act of permitting abuse
is a result, actual knowledge of which the statute does not
require.
We turn, then, to the requirement that the defen-
dant have acted or failed to act “under circumstances in
which a reasonable person should have known of the phys-
ical or financial abuse.” ORS 124.100(5). The wording of
that requirement leads to several observations. First, the
reference to circumstances in which “a reasonable person
should have known” unambiguously sets out a constructive
knowledge requirement. That is, ORS 124.100(5) applies
under circumstances in which a reasonable person should
have known of another’s abuse, regardless of whether the
defendant actually knew of the abuse. Cf., Gaston v. Parsons,
318 Or 247, 266, 864 P2d 1319 (1994) (Peterson, J., dissent-
ing) (“constructive knowledge” of harm refers to when, “in
the exercise of reasonable care,” it should have been discov-
ered even if not actually discovered); Forest Grove Brick v.
Strickland, 277 Or 81, 86, 559 P2d 502 (1977) (“construc-
tive knowledge” refers to a person “charged with knowledge
that a reasonably diligent inquiry would disclose” (internal
quotation marks omitted)). Second, the statute appears to
assume that the “circumstances” themselves are known or
available to the reasonable person. Thus, ORS 124.100(5)
provides that, based on circumstances that are known to a
reasonable person, certain other facts perhaps not actually
known will nevertheless be imputed, because a reasonable
person aware of those circumstances should have known
of the abuse. Third, what a reasonable person should have
known is “the physical or financial abuse.” In contrast to the
first mental state requirement, then, the second one clearly
refers to constructive awareness of a particular fact—
another person’s physical or financial abuse—not awareness
of the defendant’s own conduct.
There remains an issue concerning what ORS
124.100(5) means when it refers to “the physical or financial
abuse” that a reasonable person should have known. On the
one hand, the use of the definite article “the” in reference
to “physical or financial abuse” could refer to the specific
224 Wyers v. American Medical Response Northwest, Inc.
incident or incidents of abuse that the defendant allegedly
has permitted another to commit against the plaintiff or
plaintiffs. On the other hand, it could refer more generally to
the type of abuse that the defendant has permitted another
to commit, whether against the plaintiff or against another
vulnerable person.
AMR argues for the former interpretation. In its
view, ORS 124.100(5) applies only under circumstances in
which it can be demonstrated that it should have known of
“the very same incident of abuse that injured the plaintiff.”
In fact, AMR goes even further and contends that the ref-
erence to “the” abuse in ORS 124.100(5) has the effect of
transforming a statute requiring constructive knowledge of
abuse to one requiring actual knowledge of that abuse. In
AMR’s view,
“the constructive knowledge requirement in ORS
124.100(5) is necessarily limited to knowledge of the abuse
that occurred on the particular plaintiff. In other words, the
defendant must have some degree of actual knowledge of
the abuse on the plaintiff.”
(Emphasis in original.)
AMR’s contention that the requirement that a defen-
dant reasonably should have known of “the” abuse amounts
to a requirement that the defendant have actually known of
that abuse is squarely contradicted by the statute’s explicit
reference to constructive—not actual—knowledge. But that
does not completely resolve the matter. ORS 124.100(5) does
refer to constructive knowledge of “the” abuse, and AMR’s
broader suggestion that the phrasing could be taken to refer
to constructive knowledge of a specific instance or instances
of abuse against the plaintiff or plaintiffs is not unreason-
able. This court, after all, has not infrequently declared that
the use of the definite article can signify a narrowing intent.
See, e.g., State v. Lykins, 357 Or 145, 159, 348 P3d 231 (2015)
(“As a grammatical matter, the definite article, ‘the,’ indi-
cates something specific, either known to the reader or lis-
tener or uniquely specified.”).
The court, however, has also cautioned that the use
of the definite article is not always, so to speak, definitive.
See, e.g., SAIF v. DeLeon, 352 Or 130, 138, 282 P3d 800 (2012)
Cite as 360 Or 211 (2016) 225
(“[T]he definite article ‘the’ is not dispositive.”). Its use in
context may reveal an intention to encompass less categor-
ically specific referents. See, e.g., State v. Stark, 354 Or 1,
7-8, 307 P3d 418 (2013) (statutory reference to “the judg-
ment” applies not only to original judgment but also to sub-
sequently entered judgments). This is such a case for several
reasons.
To begin with, the statutory context suggests that
it is not likely that the legislature intended its use of the
definite article in ORS 124.100(5) to be dispositive. In fact,
ORS 124.100 refers to “physical or financial abuse” a num-
ber of times, only sometimes using the definite article. ORS
124.100(2), for example, provides that a vulnerable person
who has been abused may bring an action against a person
“who has permitted another person to engage in physical
or financial abuse”—without specifying “the” abuse against
that particular vulnerable person. Presumably, the abuse
mentioned in subsection (2) is the same as the abuse men-
tioned in subsection (5) of the same statute. Subsection (5)
in fact specifically states that it refers to an action “brought
under this section,” namely, ORS 124.100(2). Yet subsection
(2) is phrased more generally, not referring solely to the
particular abuse that another person may commit against
a particular vulnerable person.3 At the very least, the incon-
sistency in phrasing between subsections (2) and (5) in this
regard cautions against placing too much emphasis on the
use of the definite article in the latter subsection.
Aside from that, the consequences of adopting
AMR’s proposed reading of the statute give us pause. If
AMR is correct that ORS 124.100(5) applies only under
circumstances in which a reasonable person should have
known of the very abuse that its actions permitted, then,
logically, the statute would practically never apply. It would
come into play only when a defendant participated in or was
present during an instance of abuse, or when the defendant
3
The wording of ORS 124.100(2) itself appears internally inconsistent on
this very point. It states that a vulnerable person who was the victim of physical
or financial abuse may bring an action against “any person who has caused the
physical or financial abuse” (using the definite article) and any person “who has
permitted another person to engage in physical or financial abuse” (omitting any
article).
226 Wyers v. American Medical Response Northwest, Inc.
had reason to know in advance of a perpetrator’s plan to
abuse a particular vulnerable person. Under AMR’s reading
of ORS 124.100(5), then, an employer that has received con-
firmed reports of an employee’s repeated abuse of multiple
vulnerable patients would face no liability under that stat-
ute for allowing that employee to abuse a vulnerable patient,
so long as the employer had no reason to know of the employ-
ee’s abuse of that specific patient.
AMR insists that the legislative history demon-
strates that ORS 124.100(5) was intended to have precisely
that limited effect. According to AMR, that history shows
that the statute was “directed toward ‘abusers’ and toward
no one else. Individuals who ‘permitted’ abuse by third par-
ties were just a sub-category of ‘abusers.’ ” AMR argues that
the legislative history demonstrates that to be the case in
two ways. First, AMR relies on the absence of legislative his-
tory suggesting a broader intended meaning of the statute.
It reasons that
“there was no discussion about standards of negligence or
recklessness fitting into this statute, or about potentially
applying this statute against negligent employers with
wayward employees. Had such standards been intended,
one might expect some discussion[,] given that such a law
would have far-reaching implications * * *.”
Second, AMR argues that the focus of the legislature in
passing what eventually became ORS 124.100 was on abus-
ers and that the law was not intended to target “institu-
tional providers of care or services.” For the reasons that
follow, AMR’s reliance on that “history” is unavailing.
We begin with AMR’s reliance on an absence of
any comment on the constructive knowledge requirement
during the legislature’s deliberations on what became ORS
124.100(5). As this court has stated on a number of occa-
sions, silence in the legislative history of a statute, by itself,
is not often reliable evidence that the legislature intended
anything. Lake Oswego Preservation Society v. City of Lake
Oswego, 360 Or 115, 129, ___ P3d ___ (2016) (“[N]egative
inferences based on legislative silence are often unhelpful
in statutory interpretation.”); Weldon v. Bd. of Lic. Pro.
Counselors and Therapists, 353 Or 85, 100, 293 P3d 1023
Cite as 360 Or 211 (2016) 227
(2012) (stating reluctance to infer legislative intent from
silence); State v. Rutley, 343 Or 368, 375, 171 P3d 361 (2007)
(“statutory silence alone is not a sufficiently clear indica-
tion of legislative intent to dispense with a culpable mental
state”). Inferring legislative intent on the basis of a lack of
comment in the legislative history is problematic for several
reasons.
At the outset, it relies on unrealistic assumptions
about the legislative process and the omniscience of legis-
lators. That is, it assumes that legislators are in a position
to predict all the potential consequences of legislation and
that they will always address them. Such an assumption
ignores the fact that legislators often cannot be aware of
every potential consequence of enacting the bills before
them, as well as the fact that the press of time in legislative
sessions of limited duration often does not provide legisla-
tors the opportunity to comment on all of a bill’s potential
consequences. Moreover, drawing conclusions from silence
in legislative history misapprehends the nature of legisla-
tive history itself, which often is designed not to explain
to future courts the intended meaning of a statute, but
rather to persuade legislative colleagues to vote in a partic-
ular way. Thus, for example, a proposed legislative change
to the status quo might not prompt comment precisely
because everyone understands that the law will have that
effect or because supporters do not wish to draw attention
to it. See generally Anita S. Krishnakumar, The Sherlock
Holmes Canon, 84 Geo Wash L Rev 1, 21-35 (2016) (detail-
ing problems with drawing inference from silence in legis-
lative history);4 John C. Grabow, Congressional Silence and
the Search for Legislative Intent: A Venture Into “Speculative
Unrealities,” 64 BUL Rev 737, 765 (1984) (“necessarily fre-
quent silences of Congress provide a wholly unreliable and
unprincipled basis for inferring legislative intent”).
As for the legislative history that does exist, we
find little support for the conclusions that AMR draws from
it. What is now ORS 124.100 was introduced in 1995 as
4
The name of the article is taken from the Sherlock Holmes story Silver
Blaze, in which a watchdog failed to bark while a racehorse was stolen, leading
Holmes to infer that the dog knew the thief, its trainer. Sir Arthur Conan Doyle,
Silver Blaze, in The Complete Sherlock Holmes 349 (1930).
228 Wyers v. American Medical Response Northwest, Inc.
Senate Bill (SB) 943. It was drafted by an elder-law practi-
tioner, Bertalan, with input from an elder-abuse task force.
Bertalan testified before the Senate Judiciary Committee
following the introduction of the bill and its referral to that
committee. Tape Recording, Senate Committee on Judiciary,
SB 943, Mar 23, 1995, Tape 69, Side A (statement of Lisa
Bertalan). She explained that the focus of the bill was not
the nursing home industry because that industry already is
heavily regulated; rather, her focus in drafting the bill was
less-regulated entities and individual abusers of the elderly
and the vulnerable. Tape Recording, Senate Committee on
Judiciary, SB 943, Apr 12, 1995, Tape 102, Side B (state-
ment of Bertalan). Her written testimony explained:
“The purpose of [the bill] is to protect elders and incapac-
itated adults from physical and financial abuse * * *. The
aim of Senate Bill 943 is to prevent and provide a specific
remedy for physical abuse and financial exploitation from
relatives, the new ‘friend’ who suddenly cuts the elderly
person off from family and the rest of the world, phony con-
tractors who sell the elderly person substandard services
or unnecessary goods, and the acquaintance who suddenly
becomes the elderly person’s live-in caregiver in exchange
for the deed to the family home or other property.”
Testimony, Senate Committee on Judiciary, SB 943, Mar 23,
1995, Ex R (statement of Bertalan); see also Testimony,
House Committee on Judiciary, SB 943, May 12, 1995 Ex D
(statement of Bertalan) (to similar effect; purpose of bill is
to provide specific remedy for “physical abuse and financial
exploitation” of elderly and incapacitated persons, against
relatives, acquaintances, businesspeople, and live-in-care-
givers who perpetrate abuses).
Following introduction of the bill, representatives
of the Oregon Health Care Association proposed exclusions
for nursing facilities, residential care facilities, and assisted
living facilities. In response, an amendment was introduced
to do just that. The committee approved the bill with that
amendment. The Senate then passed the bill unanimously,
as did the House of Representatives.
Nothing in the foregoing history suggests that the
part of SB 943 that became ORS 124.100(5) was intended
Cite as 360 Or 211 (2016) 229
to apply only to individual abusers and not to employers
or other institutions. To be sure, it does reflect a concern
that the provisions of the bill not apply to particular insti-
tutions, namely, nursing facilities, residential care facilities,
and assisted living facilities. And, consistently with that
concern, the final version of the legislation contained an
exemption for those institutions. See ORS 124.115 (setting
out persons not subject to action under ORS 124.100). But
no other institutions or entities—businesses such as AMR,
for example—were included in that limited list. The express
exclusion of such a list of certain entities strongly suggests
that the legislature intended not to exclude any others not
listed. See Crimson Trace Corp. v. Davis Wright Tremaine
LLP, 355 Or 476, 497, 232 P3d 980 (2014) (when a stat-
ute lists specific exemptions, “the legislature fairly may be
understood to have intended to imply that no others are to
be recognized”).
If the reference to “circumstances in which a reason-
able person should have known of the physical or financial
abuse” in ORS 124.100(5) does not bear the narrow inter-
pretation for which AMR contends, there remains the ques-
tion of what it does mean. As we noted earlier, that wording
is reasonably capable of referring not just to circumstances
in which a reasonable person should have known of a partic-
ular instance of abuse against a particular plaintiff; rather,
it could also refer to circumstances in which a reasonable
person should have known of the same or similar abuse of
a vulnerable person. Said another way, the statute could be
read to apply when, in light of information known or avail-
able to a reasonable person, that person should have known
of the kind of abuse that in fact occurred. That interpre-
tation is the better of the reasonable possibilities. It gives
effect to all the statute’s terms, in particular, to both of its
different mental state requirements. It results in no redun-
dancy or conflict between statutory terms. It inserts noth-
ing into the statute that the legislature did not include. At
the same time, it omits nothing from the statute that the
legislature enacted. And it ensures that the statute applies
beyond the very narrow circumstances in which a defendant
either participated in or was present during abuse, or had
reason to know in advance of a plan to abuse a particular
230 Wyers v. American Medical Response Northwest, Inc.
vulnerable person, consistently with the apparent purpose
of the statute as reflected in its wording and its enactment
history.
To summarize: ORS 124.100(5) refers to two dif-
ferent mental states, one referring to actual knowledge and
the other to constructive knowledge. The former refers to
a defendant’s act or failure to act. The latter refers to the
circumstances in which that act or failure to act occurs.
The statute thus provides that there must be evidence
that a defendant knowingly acted or failed to act under
circumstances in which a reasonable person should have
known that the same sort of abuse of a vulnerable person
that occurred would, in fact, occur.5 So, for example, ORS
124.100(5) applies if an employer such as AMR knowingly
(as opposed to, say, inadvertently) schedules an employee to
work on an ambulance run under circumstances in which a
reasonable person should have known that the sort of abuse
inflicted on the plaintiff would occur.
B. Application
With the foregoing interpretation in mind, we turn
to the question whether the trial court erred in granting
AMR’s summary judgment motion as to all six plaintiffs.
Summary judgment is appropriate if, viewing the evidence
in the light most favorable to the nonmoving party, no gen-
uine issue of material fact exists “and the moving party is
entitled to judgment as a matter of law.” See Chapman v.
Mayfield, 358 Or 196, 204, 361 P3d 566 (2015) (so stating
and citing ORCP 47 C).
As explained in our earlier factual summary, the
incidents at issue in this case involved instances of abuse
inflicted on six different vulnerable persons—plaintiffs—by
AMR’s employee, Haszard. AMR does not dispute that each
of the six plaintiffs qualified as a “vulnerable person” within
the meaning of ORS 124.100(1)(e).
5
As we note later in this opinion, the evidence in the record is sufficient
to permit a reasonable juror to find that a reasonable person in AMR’s position
should have known that the sort of abuse that did occur would, in fact, occur. We
need not address whether the statute also contemplates liability under circum-
stances in which a reasonable person should have known that such abuse as did
occur was merely foreseeable.
Cite as 360 Or 211 (2016) 231
None of the six plaintiffs reported her interaction
with Haszard to AMR, to other medical staff, or to the
police. It thus is undisputed that, until discovery during the
Herring litigation several years later, AMR had no actual
knowledge of Haszard’s physical abuse of any of the six
plaintiffs in this case. The question, however, is not whether
AMR actually knew about that abuse. Instead, the question
is whether plaintiffs established genuine issues of material
fact as to whether AMR knowingly scheduled Haszard to
work as a paramedic under circumstances in which a rea-
sonable person should have known that the sort of abuse
that the plaintiffs suffered would occur. AMR does not sug-
gest that it had not knowingly assigned Haszard to work
as a paramedic during each of the six alleged incidents of
abuse. That leaves, then, the question whether a genuine
issue of material fact exists about whether AMR did so under
circumstances in which a reasonable person should have
known that the same type of abuse that occurred would in
fact occur.
1. Plaintiff Akre
The earliest incident involving a plaintiff in this case
concerned plaintiff Akre. Viewed in the light most favorable
to plaintiffs, evidence in the record shows that, by the time
of plaintiff Akre’s abuse, AMR knew that other similarly sit-
uated vulnerable persons had reported that Haszard had
abused them. Specifically, in February 2006, Spain had
called AMR and reported to its receptionist that one of the
company’s paramedics was a “freak” who had inappropri-
ately touched her, that it was unsafe for that paramedic to
transport little girls, and that he should be taken off ambu-
lance duty. Additionally, there is evidence that complaints,
such as those alleging sexual misconduct, were entered
into a database and forwarded to AMR’s county operations
manager.
There is also evidence that, one month after the
Spain incident, Whalen reported in an AMR customer sur-
vey that Haszard had failed to respect her privacy at the hos-
pital by not looking away while a nursing assistant helped
Whalen into a gown, despite her obvious discomfort. AMR
followed up with an interview of Whalen, during which she
232 Wyers v. American Medical Response Northwest, Inc.
complained that Haszard had stared at her and acted sexu-
ally aroused. Whalen later recounted that the AMR inves-
tigator had “dismissed everything that [she had] said,” tell-
ing her that she “must have been imagining things.” The
investigator, however, did write an internal report describ-
ing Whalen’s complaint and concluding that it had been
“substantiated.” Plaintiff Akre’s abuse occurred about three
weeks after that.
There is thus evidence that, at the time of plaintiff
Akre’s abuse, AMR had already received at least two com-
plaints of sexually inappropriate conduct on the part of its
paramedic, Haszard. Indeed, one of those reports had been
investigated and confirmed as having been “substantiated.”
Under those circumstances, there is at least a genuine issue
of fact about whether AMR should have known of the sort
of abuse that plaintiff Akre suffered. To be sure, AMR dis-
putes the Spain report, noting that it has no record of such
a complaint call having been placed or, if it had been placed,
that the receptionist ever reported the call to anyone else.
But AMR’s dispute establishes no more than that there is
a genuine issue of material fact about what transpired. At
this stage, we are constrained to view the evidence in the
light most favorable to plaintiff. In that light, there is at
least a genuine issue of material fact about whether AMR
should have known when it assigned Haszard to ambulance
duty that the same sort of abuse inflicted on plaintiff Akre
would occur. See Towe v. Sacagawea, Inc., 357 Or 74, 109-
10, 346 P3d 1207 (2015) (evidence mixed as to factual issue
in dispute, reasonable juror could find facts either way, and
so case presented factual issues for jury to resolve; trial
court therefore erred in granting summary judgment). The
trial court therefore erred in granting summary judgment
against plaintiff Akre.
2. Plaintiffs Shaftel, Asbury, and Terpening
By the time of the alleged abuse against plain-
tiffs Shaftel, Asbury, and Terpening, there is evidence
that AMR had received even further reports of Haszard’s
abusive conduct toward vulnerable persons. In December
2006, Rotting was transported by ambulance with Haszard
attending. During that transport, Haszard touched Rotting
Cite as 360 Or 211 (2016) 233
in a manner similar to the sexual touching that plaintiff
Akre had alleged; he also slowly stroked Rotting’s thigh.
Rotting reported the incident to a nurse and to family mem-
bers, and her son called AMR. Her son spoke with the same
supervisor who had investigated the Whalen complaint, and
the supervisor stated that there would be an investigation.
The investigation, however, was limited to interviewing
Haszard, who denied having engaged in any inappropriate
conduct. Rotting’s son called AMR again and stated that
the police should be involved. AMR took no further action,
although its risk management department was notified that
Rotting might file a complaint.
A month later, Haszard sexually abused plaintiff
Shaftel. And three weeks after that, he sexually abused
plaintiff Asbury. Three weeks later, he also sexually abused
plaintiff Terpening. Thus, by the time of Haszard’s abuse
of those three plaintiffs, there is evidence that AMR had
received three reports of its employee’s abuse of vulnerable
persons under circumstances similar to those later incidents
of abuse that actually occurred. Again, AMR disputes some
of the foregoing evidence, but that is not the point at this
stage in the proceedings. On the record before us, viewed in
the light most favorable to plaintiffs Shaftel, Asbury, and
Terpening, there is at least a genuine issue of material fact
about whether AMR should have known that the sort of
abuse that plaintiffs Shaftel, Asbury, and Terpening suf-
fered would occur. The trial court therefore erred in grant-
ing summary judgment against those three plaintiffs.
3. Plaintiffs Webb and Corning
Haszard’s abuse of plaintiffs Webb and Corning
occurred not long after the abuse of plaintiffs Shaftel,
Asbury, and Terpening. By that time, AMR had received
yet another report of abuse. In March 2007, Pries reported
to police that Haszard had sexually abused her during an
AMR ambulance transport by taking her hand, placing it
inside her pants, and manipulating it. Police spoke with an
AMR supervisor, and several AMR employees, including
Haszard, then met with a company risk-management offi-
cial. AMR ultimately determined that it could not substan-
tiate Pries’s allegations, but it warned Haszard in writing
234 Wyers v. American Medical Response Northwest, Inc.
that either that incident or Rotting’s would be reopened if
more information came to light. AMR did not make any
effort to contact Pries, did not request further information
from police, and did not tell police about the Rotting com-
plaint. A month later, Haszard abused plaintiff Webb during
an ambulance transport. Four months after that, he abused
plaintiff Corning.
Thus, by the time of Haszard’s abuse of plaintiffs
Webb and Corning, AMR had received four reports of abuse
of vulnerable persons by its employee Haszard, including
one report involving the police. Indeed, there is evidence
that AMR warned Haszard not to engage in such conduct in
the future. That evidence is sufficient to establish a genuine
issue of material fact about whether a reasonable person in
AMR’s position should have known that the sort of abuse
that plaintiffs Webb and Corning suffered would occur. As a
result, the trial court erred in granting summary judgment
for AMR against plaintiffs Webb and Corning.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings. | 01-03-2023 | 08-12-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4129832/ | QBfficeof tfy ~ttornep QaeneraI
Sbtateof Gexae
DAN MORALES
Al-r”RNEY
GENERAL May 31.1995
Mr. Vior Rodriguez Opiion No. DM-349
Chair
Texas Board of Pardons and Paroles Re: Wbetber a person wbo Ius successfully
t’.O. Box 599 completed deferred adjudication ~comtnunity
Huntsville, Texas 77342 SUpUViSiOll~WbOlUtSbeendiSCb8l.gCd
after dismissal of charges pursuant to eection
5(c) of u-tide 42.12 of the Code of Ctiminal
Procedure is eligibleto apply to the Board of
Pardons end Paroles for a pardon (RQ-683)
Dear Mr. Rodrigtlez:
Your predecessor asked this office wbetber a person wbo has succcssftdly
completed deferred adjudication comnhty supervision I&I who has been discharged
atIer dimissd of charges pursuant to seotion S(c) of srticle 42.12 of the Code of Criminal
F9acedure is eligiile to apply to the Board of Partixui and Paroles (the “board”) for a
pardon. The board exists by virtue of article 42.18 of the Code of CriminalProcedure (the
“code”) and the mandate of section 11(a) of a&e IV of the Texas Constitution.
Subsection (b) of section 11 and code article 48.01 botb provide in patinent part as
follows:
In8llcrimindcdsqexcepttmsonandimpmcbn~the
Governor shall have power, qfffrr com+fiorr, on the written signed
recommendation and advice of the Board of Pardons and Paroles, or
a majority thereof; to pant repiieves and commutations of
punishments and pardons. . . .
Tex. Const. ert. IV, 5 11(b) (emphasis added); Code Grim. Proc. ert. 48.01 (emphasis
added).’
Mr. Victor Rodriguez - Page 2 (DM-349)
Your predecessor explained that persons who have successfully completed
deferred adjudication community supervision rue seeking full pardon9 after the dismissal
of their &minsl charges pursuant to code article 42.12, section S(c). These persons
apparently wish to benefit from the pardons they seek by obtaining expunction of their
arrest records. See Code Grim. Proc. art. 55.02 (setting forth procedure for expunction).
They would claim in a petition for expunction that they are entitled to such relief under
code article 5501(a)(l)(B), which provides as follows:
(a) A person who hss been arrested for commission of either a
felony or misdemeanoris entitled to have all records and files relating
to the mest exptmgedif:
(1) the person is tried for the offense for which the person was
arrested end is:
....
(B) convicted and subsequentlypardoned. . . .
Your predecessor asked whether the requirement of a “conviction”in the above-
quoted wnsthutional and staMory pardon provisions disquahges these persons from
pssdon eligibility for the reason that they have not undergone an “adjudication of guilt,
id. rrt. 42.12, 0 5(c). Your predecessor explained the reason for this question in part as
follows: “Since there is no conviction when charges are dismid our staff questions
whether the policy of accepting applications for fidl psrdons is appropriate when there is
no wnviction.”
Subsections (a) to (c) of section 5 of code article 42.12 provide in part as follows
(with emphasis added):
(a) Except as provided by Subsection (d) of this section, when
in the judge’s opinion the best interest of society and the defendant
wig be served, the judge may, qtier receiving opleo of guif@or plea
of nolo cmten&re, hearing tk evidence, and findig that it
srrbsrenriolrsthe &femkmt ‘sguilt, defer further proceedings without
entering an adjudication of guilt, and place the defendant on
community supervision. . . .
p. 1858
Mr. Victor Rodriguez - Page 3 (DM-349)
(b) On violation of a condition of community supervision
imposed under Subsection (a) of this section, the defendant may be
arrested and detained as provided in Section 21 of this article. The
defendant is entitled to a hearing limited to the determination by the
COWIof whether it proceeds with an adjudication of guilt on the
o@d charge. No appeal may be taken from this determination.
After an adjudication of guilt, all proceedings, including assessment
Of punishment, pronouncement of sentence, granting of community
arpavision, and defendant’sappeal continue as ifthe adjudication of
guilt had not been deferred.
(c) &I expiration of community supervision imposed under
Subsection (a) of this section, if the judge has not proceeded to
adjudication of guilt, thefudse rho11Amisr the proceedings against
the &fendmt anddtscharge him. , . .
Weareoftheopinionthatapersonchargedwithauiminaloffbnsewhohas
successlYly completed defbrred adjudication community supervision is not eligible to
apply to the board for a pardon, but we believe it is unnecemary to determine whether
deferred adjudication involves a “conviction” in order to reach this conclusion. If a
6ndmg of substantiated guilt under section 5(a) of code article 42.12 is not a %onviction”
for purposes of the governor’s constitutional pardon power, then the govemor has no
power to grant a pardon for the offense for which the defendant was found guilty because
the pardon could not be granted “after conviction,”Tex. Const. art. IV, 8 1l(b). On the
other hand, if a fmdhrg of substantiated guilt is a %.onviction,”then for the following
reasons a subsequent dismissal of the proceeding without an “adjudication of guilt”
pursuant to section S(c) would remove the matter from the governor’s pardon power.
Subsection (c) continues after the above-quoted passsge to provide that, generally,
“[a] dismissal and discharge under this section may not be deemed a conviction for the
purposes of disqualificationsor disabilitiesimposed by law for conviction of an offenses,”
but that the defendant’s prior receipt of deferred adjudication community supervision may
be considered in the punishment phase of a prosecution for a subsequent offense, Code
Crim. Proc. an. 42.12, $5(c)(l); see id. art. 37.07, 5 3, or in the process of determining
whether to issue. renew, deny, or revoke either of the following: a license to operate a
child-care facility or child-placingagency, id. art. 42.12. 0 5(c)(2); me Hum. Res. Code
ch. 42, or a license or registration to provide rehabiitative mental health or medical
se&es to scx offenders, Code Grim. Proc. art. 42.12, 0 5(c)(3); see V.T.C.S. art.
413(51).’ we are of the opinion that none of the provisions in subsection (c) establish
penalties or d&bilities that are within the governor’s power to forgive by pardon.
p. 1859
Mr. Victor Rodriguez - Page 4 (DM-349)
A pardon (other than one based on a finding of actual innocence) can relieve a
person only from the punishmentthst the law attaches to the commissionof a crime.
Clemency power is vested in the Governor to the extent only that he
can remit fmes imposed which remain unwllwted and discharge the
wnvicttromtIntherpenslservice.. . .
. . . .
The Governor csn forgive the penalty, but he hss no power to
direct that the courts shall forget either the crime or the conviction.
Jones v. State, 147 S.W.Zd 508,511 (T&x.Grim. App. 1941). Any rights of citizenship
that were lost as a result of the wnviction constitute a plvt of the punishment for the
crime, .so the governor also may restore such rights by pardon. Miller v. State. 79 S.W.
567. 567-68 (Tar. Grim. App. 1904) (pardon restores testimonial wmpetenq); see
Eprrcnooad v. Srafe, 31 S.W. 2%. 2% (Tex. Grim. App. 1895) (fill pardon restores
rights of jury service and sufkage). Bkk’s Law DicHw dafkes pordm as ‘[a]n
exwutivc action that mitigates M sets aside p&&nent for a crime- and “restores the
rights and privileges forfeited on account of the offense.” BUM’S LAWDICTIONARY
1113 (6th cd. l!ao).
(1) uponcowinionofr~to6asc,tbchcttbatthcdcfcndanthod
previotlslytcwivcdconlnltity supavklollwall8 dda7cd a&ldkationof @lilt
SlUUbCdlOkdbkbCfO?CthCCOWtOIjuytObCcosrridacdOllUlCiWJCOf
parslty;
CodeCrh F’mc.ut 42.12.05(c)@“‘~huir ddcd).
p. 1860
Mr. Victor Rodrig& - Page 5 (DM-349)
A pardon does not, howwer, “‘obliterate the fact of the commission of the crime
and the wnviction therefor, it does not wash out the morsl stain,“’Jones, 147 S.W.Zd at
510 (quoting 46 C.J. Parulw 8 32, at 1193 (1928)); acwrdErparte Smith, 548 S.W.Zd
410,414 (Tex. Grim. App. 1977), ovemded on other ground%by Expmle Blume, 618
S.W.Zd373,376 (Tex. Grim. App. 1981), unless the pardon is based on actual immcence,
see Logon v. State. 448 S.W.Zd 462, 464 (Tex. Crbn. App. 1969) (there would be no
offense if pardon was based on finding of innocence). A prior conviction may be offered
,@evidence in a subsequentprosecution for the purpose of enhancementof punishment,id.
at 511-12; 9ce Pensl Code 0 12.42, or to bar statutory eligiii for probation
wnsideration, Watkinsv. Store. 572 S.W.Zd339,343 (Tex. Crim. App. 1973); see Code
Grim. Proc. art. 42.12.0 4(e). regardless of the fict that the defendant has rewived a 111
pardon.’ Siiy, a prior conviction that has been pardoned for any reason other than
hmownw is -availableto deny bail under Texas Constitution article I, section 11-A, Er
purte Smith, 548 S.W.Zd at 414. or lo prove the offenses of possession of firearms by a
convicted felon, Rrmo v. S&zfe,556 S.W.2d 808, 809 vex. Grim. App. 1977). and
possession of burglary tools by a wnvicted felon, m v. Skafe,448 S.W.2d at 463-64.
Furthermore, a felon who testifies may be subject to impeachment by proof of his
conviction even ifhe has been pardoned, Sipanekv. Stute, 272 S.W. 141.142 (Tex. Crim.
App. 1925); see Tex. R Crim. Evid. 6OQ.unless he shows that the pardon was gmnted on
the ground of immcence or total reformation, Bennett v. State, 5 S.W. 527. 529 (Tex.
App. 1887). In the absence of such a showing, a pardon “does not change the wmmon-
law principle that the wnviction of an infamous offense is evidence of bad character for
truth.” Id. Fiiy, a pardon will not restore the 05ce of attorney to a penon who has
been disbarred because of a prior conviction or restore the good character that the person
must possess to be admitted to the bar. Hankamerv. Templin, 187 S.W.Zd 549. 550
(Tex. 1945).’
The foregoing authorities show that ~apardon that is not based on a Ming of
innocence may reach only the punishments,penalties, disabilities,and disqualikttions that
the law would attach to the pardoned conviction. Such a pardon neitheraffects the penal
wnsequences of any subsequent offenses nor restores a person’s reputation or good
character. Jones, 147 S.W.Zdat 510-11.
Therefore, lo the extent that the law permits the fact of a prior conviction lo be
considered (1) in assessing the pensl wnsequenws of a subsequent offense or (2) in
determining whether the jkrson possesses the good character requkd for licensing in a
p&ion of mspwsiiity and trurt, the governor has no power to intervene by granting
p. 1861
tar. vztor~octnguu - rage 6 wn-39,
such a pardon. The provision in subsection (c)(l) of section 5 of article 42.12 is of the
former nature; that subsection merely authorizes consideration of the prior conviction in
assessing the panal wnsequences of a subsequent offense. The provisions of subsections
(c)(2) 8nd (c)(3) are of the latter nature; those provisions are merely limited grants of
authority to consider the fact of the defbndant’sprior guilt when that guilt is relevant to
the defmdaot’s character. None of the provisions in subsection (c) constitute wntinuing
penalties M disltbiities.
Because nothing remainstobepardonedafkrchargesaredismissedandthe
defkndant is dischsrged pumant to subsection (c). we are of the opinion that any
purported pardon of an o&se issued a&r dismissaland discharge would be a nullity for
lack of an object. Cj. Miller, 79 S.W. at 56768 (goveroor may extead clemency even
atier sewico of sentence on felony wnviction because such wtiction continues to
deprive defendant of certain civil rights we-n after expiration of sentence).” wore, a
defendant who has been dischmged under subsection (c) is not eligible for consideration
fbrapardon.
In closing, we note that an arrest that leads to prosecutioq defked adjudication,
andultimatelydismissalofchargesisnotalegaldisabii. Thefhctthatapersonhasbcen
~GSkdllUybeUlIb armssingandmaycauseproblemssuchasdifiiatltyinobtaining
employment, and it may be tNe that exptmctionof the rewrd of arrest would be of great
benef%totheperson. Nev&eless,anarrestisnotapunirhmentorlegaldisabiiarising
&om a conviction. Article 55.01 of tbe Code of Crimbial Procedure grant, a right of
arpunctionofrmstrecords~61eswhenapmonhrrbeenwnvictedudthen
pardoned, but it does not empower the governor to pardon an arrests
p. 1862
Mr. Victor Rodriguez - Pbge 7 (DM-349)
SUMMARY
A person who has successfullywmpleted deferred adjudication
wmmtmity supervision and who has been discharged after dismissal
of charges pursuant to section 5(c) of article 42.12 of the Code of
Criminal Procedure is not eligible to apply to the Board of Psrdons
and Paroles for a pardon for the crime of which the person was found
guilty. for such a person has no legal dkahiities or disqualifications
resulting from the deferred adjudicationthat are subject to remission
by pardon.
DAN MORALES
Attomcy General ofTexas
JORGE VEGA
FiiAssiuantAttomeyGenenll
SARAH J. SHIRLEY
Chair, Opinion Committee
p. 1863 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143899/ | :i
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? r | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143922/ | 292
wanlfertly the rtatute 00~14 hsve easily
been mds rsorea~4alflc in this retyard. E4 aen-
ceive, bmneV4r, that a21 of the contentionshere
mde by appellents,whsther eatuell~ mired in the
atteok upon tte vmll418p cf tbe ictt or mt, were
nrcersotilyinvclved in tbQ @ttIhokamebe upon it8
aonrtitutlonalityin Burt T. Gaoper, aupre, rhloh
follourd the declriona in t& Jeo&eon end FiOrgrr-
eld a&ems, rupra, en4 Ugeett Co. vr Lee, 488
0. 6. 819, 88 8. ct. 681, 97 L lKd.989, 88
A. 1. R. 6Wg ia all of *blob eaee8 the vaoli@itp
tbcreof, notwithetendlngruoh indefiniteoarsin
the rerpects rtrtod, vu6 auatdaed . . . 5%
ia ii~0i ~ tb s.wdbw25 60lp dr io a x pgro-
vide bar, and by whati tha tax 8e impcsod should
be paid, should not, in view of t&e 4eolrione up-
holding the hot l# Valid, be psrtitt84 to d*feat
it8 pl-OVi$iOn&. . . *
Tbr court did aat Haho to whet extm~t or in *bet proportion
the taxpspre, to-wit, tha,mtoro operaton, WM leoh liable,
It act beini~nr0semx-y to a00m that qwn6ion. lhwor4r, thn
oourt oleerly held that the Aot ilrml14 en4 that fail- of
tbti f.egi8letW8to sake thf8 pl'OVi6iciIsore s~eoif'ioWill not
*br grraltted to d@ffmti it* (bhe A86’8) ~rovisioa&" llhlrr
hol4lag alberlp indiaa8ob ktmt the sour6 bellwed t&fitthr
Aat rbauld and could be enforaed an hbe baeir thet ell oi
the stare8 in II0888 of this kind cdnstituteoae ehaia. If it
lr valia end is to be lnicrcea, e tar is due on 6 ebein oi air-
trsn etorsr (in ths actmeyou eek &bout) end the operaDorm of
those storer must pap it.
51octionB af the AQt piovldes that %eaah epplloatlon
lhall be loomptmled by a ifliag fee of fifty (SO) osn68 for
seoh utore." ?fnthiak that fee rhauld bs p&I by the person
or oorpomtLan ogsratiatg the 6tcre and 6bsnton 6to ootgorn-
tionr in guertlon should per the f f llng fee pmwrlbed in f3eotion
8 a8 foll~~e: GcrporntionA, $1.00 for its two rtorao~ Corpora-
tion B, $a.00 tar ltn four ntoreo) en4 Ccrpora6ton C, &.OO
ior lte tea mtcrtss.
Bootian 8 of the Aot providee a aaalr of lioenee
t4rr 48 follart
*Ths lloenms ieer harrln g~~sorltml eke11 be
urnfolloue:
Boaomble Oebrge H. she&?prd, page 0
'1. Upon ona (1) atom the li6ease fee ehall
be On6 Dollar (81);
"4. Upoa eeoh eddltlonel store in I cm8 of
on~a (1) but not to oromd two (a), the 1fden@,
US. Upon aeob ad~aItIonal sto r e in lxoeme of
two (a) but not to exased flte (8) thr liewee
rw #hall be T%ventpilveDollar8 ($St!J).;
"4. npon eaoh adUltIcimdrtoro In 0x00~~ or
tlve (a) but not to etoeod ten (10) the lioense
fee ehell be fittr Doll- ($5O)j
"8. U&n saoh eddltional #tore in lxeesa of
ten (10) but not I*O~.,+oWd tWelaty(80), the li-
eenmo iw ahall bo Oh8 Xun4red Arty Y&l&era ($180)1
w~eaoh additional ston in lr@wa ot
but"not to cutore thli'ty-ii,ve($8)
the lloenw t4e ehall $0 Two Xuadred Fitly Doll
l4r6 (ItWO)t
A9. Vpoa~.awb rddltiawl atom in ww8* 6f
ttlrty-five(38) bu8 not ta lxooed P:Stj (80)
the lloenea fie ehall be Inca kIundr@dDallera
(96oo)r
W. Up o n lcrohedditlona2 store in lxoem at
fifty (SO), tha liams* fee shall be SetronXundrod
Flfby Dollerr (#WOll . . . *
The H. I. Bu3ubt Orooery Uwpaay 0010
robe1 language that t&m* store8
obein for tax purpoea~~,~ That belag
how 16uohie due under 3eatlon Isfor the oporstion of aixtoon
Btorem. The 8um lr Bl,iiS&OO, anivod sitas tollowrr
1 stox4 $ 1.00
1 sOd~tlontl1
etors (In
8X4886 Of 1) 5.00
3 o4altional 4tnres (In
6XOa3d of 2) 715.00
S aCdft.ionalstoma (In
4X4.865 Of 5) PS0.00
S aauitional storer,(In
4x0445 of 10)
Tbrrtorem
ThI8 atm ef &e3&GG I8 the aus owoa for the opra-
Elan of thfe ohala. As utatad in the forepert of thlr OpIn-
loll,the p,erscnrOr ccrporotioaawho al.0nqulmd to pay ar4
those who vqerate, mlntoln, o en or erwablIshw them lto x w.
There ers aixtnen utoroa, that sa, unit*, In the ehaln. Cor-
poration A opwtitsa two of the aixtaen, Gargoxation B opentm
four of the aixtaan, an4 COrpOratI~ G 0per8te8 10 0i the *lx-
teen. In cth4r wards, CnrporatlonA OpOl%It8~l/&h or *ha
ahaln, Corporation0 aparater l/&h ct the diniD, and Oorpon-
tion G operatea S/i?thr af the ohaln; on4 aooordIW, G-orgora-
tlan A Iu liable tcr l/stb of the tare6 duo under W6tion S,
to-it, lJ8th of $1,immo, pna GarpcwetlonD is Ilob fox
l/&h of asid tllX88, to-wit, l/&h of #l,SSSLOG; a
tic&n G i5 litable inr 5/8tha ai Sal4 taxes,tO-Wit,
$l,ti3fk.O0. Therefore, said outW4Iary oorporstlonrera liable
under Section 5 aa followst CarporatIonA, #lst.GG far Ita
twe atcns$ orcrtionB, $3C&OO for Itr tour atone; and
CorporationC, 770.00 tar lta ten 8toras.
54Paotii.m7 af the @O#$ ffr$ini0 Chain St0x.aT&ixA00
is i(hntloa1with &ofIon 6 of 8ha T4x4rr Act. R3so 3eotIoa 5
Of eaoh or tb:asata 61888448 the tax IlldaOSt idOUt:Otrlly
t!a mm4 longuhgs. The Enita4 Gtetss mistrIct GourC of
ths Fauthm Mstriot of %'8Ut vir&ia aOlldWu44 %eotion 7
Of the ITant ViZ@nia k4t in eh8 Oat8 O? &iii ReflnIn$ CO. V.
lbcr,11 Pe4. SUQQ. UiS, and atate a6 folMws~
*Rafmame fm aim a id8to tha 4solaIoaa
Of the f4d8Td 4Ourbm in .ntsrpnting tlr4 pro-
vialo~a ol asctions &?4O(b 1 Of the hV9nW it& Of
lQL% (40 ,Btat.1081 108&lI, 8na asotlcm 2HO(o) of
the R4VMUO AOt Of i%il ( I Hat. 860) aGereby
it was 4naOt8u tbet two 0 ’ IQW8 at%C8et I 0 %OrpOra-
tlona ahall bs a4en4a sir .im8a, lnt*r alla, ii
on4 corporation owu9 aha it1.y or oontmls sub8tan-
tially all of the atoak a ' tb4 Others.
.-,.
295
%s@tion 7 b4ma 1?1m4enslogy to the &Tcvi-
4lona Of V.4 Tievanue aotr.r8Rmaing thr effllle-
tion of onrporation4tlalkfS4ctin&thclt(Pxon cor-
DOTbt4 ~IlOOS?2IT;
. . . "
!I%4 Gulf artlnlng C~.~.preay
0084, aupr4, we8 r4iem4
84 with epgroval by the court In the R. X. Butt Urooory Co&-
pany aa44r
It la of lntcrast to note the mumor of proportion-
ate 4lstrlbutIcnof thota'~CiS8cl444a In tba Bederr R*vanu*
Act8 rsferrsd to which BOtn wara wuparea to the control pr0-
+:sion of the Kaat Virginia Chain Store %zAot.
tjeatlonJ%o Of th8 Fsderel ltevenuaAot af 1918
provfder In part 4a fallowat
*(b) For the purpom of th?a moatiantwo or
oorpo~t1o.m ehull ba dasgod to be
more ilorjestlo
arfiliated (11 ir one oorpor4tIonmaa aimtlf or
oontrola t:rau&h olooely 8frtiiatea Int8r8ata or
by a anarlnoeor naprim sub4tantIcl~yall thti
atook of th4 &her or othera, or (l?)~
If aubatan-
tislly all tha otoak of two or aor oorporrtlonr
I8 CWn8u or oontroll4aby th4 aamm intarssta.*
said k4t fppth4r p0viae4, a: to th8 pa)r?.ent
0r tb4 tuxL,aa
r0ii0w4I
*In any ant.0 In wbiah a tux 14 w4n44a upon
the beair Of 4 OO!NOlidutbdT8tUA, th4 tot31 t&X
ahell ba ooqsited in the firat Ineatcrncs ~8 u ,Wit
an4 &ball then be 8S49444a upon the re$psotiVe af*
riiiat4a corpor4tloneLz au& proportionaa4 my
b8 agreed upon #non& thyn, or, in the abaeme of
SAJ'auah 4$t48E4ctI th84 On Sha ;$44iaoi t:.4n4t
Incom properly 44el&mbl4 to 4&ch. . ,@'
0~ oonoluolon in tkls opinion au to tks fnennarof asesemsent
Of th4 %0X ItW@ b?! tOSQW8d tQ the IURn’(le~ 0f &B64%48#83s pFOlid8e
for In the Revanue Aot, auprc, just 48 the imt4a fitataaDle-
oompared ths West Virginia Chain
triot Court ot W44t Vl~trginla
&or4 mt to suoh R*tenua Act.
Aa you ocly Inquire
about tin4llabilltp of the sub-’
siaiatp 0ap0mi0na, c, A:, n 3na
In the raot altu4htiQnyou
prsuant, thie opinion 14 ccnfined to the qU84tlQn yQu esk, end
i ii.
296
& are not paming upon the extent of liability, if any,
i of holdlra ooqany X. Our oona~usion end opinion on the
qusetion YOU e8k my be auxmfirlzedan follows: The Texas
Ohafn Tax 18 4rs4ss4d agelnet lnUlrlQualr,aorporatlonr,
et4., rho 0p4n, emtabllsh,optwets and n:aintelnstores.
&oh a pewon, aorporatlon, eto., 0~40 the tax on the stor4s
he or it 80 operate4 slndaaaintalns. TRe three subeidlary
sorporationo here are liable for the taz as one oheln under
Beation 6 of the Texas Aot. Eaoh oorporationmuat pay on
it8 stores. The tax Is one whlah la based on the nuaber of
rtorrr, and, therefore,eaoh corporationpaya an wount
proportionateto the number of atom8 in the one single
ohain that woh oorporatloaoperates.
Yours wry tru3y _
AWROVEDm 27, 1940
COMMIITEC | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124991/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 28, 2016
Mr. David Reilly Opinion No. KP-0073
Executive Director
Texas Juvenile Justice Department Re: Applicability of expunction orders
Post Office Box 12757 under article 45.0541 of the Code of Criminal
Austin, Texas 78711 Procedure to records in the possession of a
juvenile probation department as a result of a
referral for delinquent conduct as defined by
subsection 51.03(a)(2) of the Family Code
(RQ-0057-KP)
Dear Mr. Reilly:
You ask about the applicability of expunction orders under article 45.0541 of the Code of
Criminal Procedure to records in the possession of a juvenile probation department as a result of a
referral for delinquent conduct as defined by subsection 5 l.03(a)(2) of the Family Code. 1 Your
questions derive from the changes made by House Bill 2398. Request Letter at 2; Act of May 30,
2015, 84th Leg., R.S., ch. 935, 2015 Tex. Gen. Laws 3224, 3224 ("H.B. 2398"). Under Texas law,
school attendance for children 6 through 18 years of age is compulsory. TEX. EDUC. CODE
§ 25.085(b). Prior to the enactment of H.B. 2398, a student's excessive absence from school could
be addressed in either criminal proceedings or civil juvenile law proceedings. 2 In appropriate
circumstances, a school district could file a criminal complaint for violation of section 25.094 of
the Education Code, the former Class C misdemeanor offense of failure to attend school. 3 /
Alternatively, the school district could "refer the student to a juvenile court for [civil proceedings
to determine] conduct indicating a need for supervision" under subsection 51.03(b )(2) of the
1
See Letter from Mr. David Reilly, Exec. Dir., Tex. Juvenile Justice Dep't, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1-2 (Sept. 29, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2
See Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951, 2001 Tex. Gen. Laws 5396, 5400-
01, amended by H.B. 2398, § 13 at 3231-32.
3
See Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951(a)(I), (b)(l), 2001 Tex. Gen. Laws
5396, 5400-01; see also Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 1, sec. 25.094, 1995 Tex. Gen. Laws 2207,
2294-95, repealed by H.B. 2398, § 41(2) at 3255.
Mr. David Reilly - Page 2 (KP-0073)
Family Code. 4 If a criminal complaint was filed, the court trying the criminal offense had
jurisdiction to issue an order requiring the juvenile to attend school without unexcused absences. 5
If a juvenile violated the order, a court could retain jurisdiction and adjudicate the contempt, 'or it
could refer the juvenile to the appropriate juvenile court to consider the contempt as constituting
delinquent conduct. TEX. CODE CRIM. PROC. art. 45.050(c)(l).
H.B. 2398 eliminated the criminal offense of failure to attend school. See H.B. 2398,
§ 41(2) at 3255 (repealing section 25.094 of the Education Code). The bill designated certain
courts as truancy courts to address "truant conduct" as codified in chapter 65 of the Family Code.
See TEX. FAM. CODE §§ 65.003, .004. "Truant conduct may be prosecuted only as a civil case in
a truancy court." Id.§ 65.003(b). The bill not only repealed the offense of failure to attend school,
it enacted article 45.0541, entitled "Expunction of Failure to Attend School Records," which
provides:
(a) In this article, "truancy offense" means an offense committed
under the former Section 25.094, Education Code.
(b) An individual who has been convicted of a truancy offense or
has had a complaint for a truancy offense dismissed is entitled
to have the conviction or complaint and records relating to the
conviction or complaint expunged.
(c) Regardless of whether the individual has filed a petition for
expunction, the court in which the individual was convicted or a
complaint for a truancy offense was filed shall order the
conviction, complaints, verdicts, sentences, and other
documents relating to the offense, including any documents in
the possession of a school district or law enforcement agency, to
be expunged from the individual's record. After entry of the
order, the individual is released from all disabilities resulting
from the conviction or complaint, and the conviction or
complaint may not be shown or made known for any purpose.
TEX. CODE CRIM. PROC. art. 45.0541.
You explain that juvenile probation departments have received expunction orders in cases
in which a court with criminal jurisdiction had referred a charge of contempt to a juvenile court to
determine if the alleged contempt constituted delinquent conduct. Request Letter at 2. You ask
whether "an expunction order issued under newly. created Article 45.0541, Code of Criminal
4
Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 6, sec. 25.0951(a)(2), (b)(2), 2001 Tex. Gen. Laws 5396,
5400-0 I, amended by H.B. 2398, § 13 at 3231-32; see also TEX. FAM. CODE § 51.03.
5See Act of May 27, 2001, 77th Leg., R.S., ch. 1514, § 9, art. 45.054, 2001 Tex. Gen. Laws 5396, 5403,
amended by Act of May 13, 2003, 78th Leg., R.S., ch. 180, § 1, 2003 Tex. Gen. Laws 265, 265, repealed by H.B.
2398, § 41(1) at 3255.
Mr. David Reilly - Page 3 (KP-0073)
Procedure, appl[ies] to documents in the possession of a juvenile probation department as a result
of a referral to the juvenile court for delinquent conduct as defined by Section 51.03(a)(2) [of the
Family Code]." Id. at 1. You state that courts that have issued expunction orders appear to
construe article 45.0541 as applicable to the referral documents because they constitute "other
documents related to the offense." Id. at 2. On the other hand, you inform us that arguments have
been made that article 45.0541 does not apply to documents related to a referral to the juvenile
court, "because, once a case is referred to juvenile court, all documents sent with that referral
become juvenile records." Id. at 3. You note that generally, the Rules of Civil Procedure rather
than the Code of Criminal Procedure govern juvenile court proceedings. Id. at 3 & n.4 (citing TEX.
FAM. CODE § 51.17). You further note that general expunction statutes do not apply to juvenile
records "because expunction statutes apply to a person 'arrested' and juveniles are not 'arrested'
but are instead, 'taken into custody."' Id. at 3; see also TEX. CODE CRIM. PROC. art. 55.0l(a) (the
general expunction statute available to "[a] person who has been placed under a custodial or
noncustodial arrest").
Courts construing a statute attempt "to determine and give effect to the Legislature's intent,
which is generally reflected in the statute's plain language." CHCA Woman's Hosp., L.P. v. Lidji,
403 S.W.3d 228, 231 (Tex. 2013). By its plain language, the right of expungement in article
45.0541 concerns "[a]n individual who has been convicted of a truancy offense or has had a
complaint for a truancy offense dismissed," and applies to "records relating to the conviction or
complaint expunged." TEX. CODE CRIM. PROC. art. 45.0541(b). Article 45.0541 is not limited to
a person "arrested," unlike the general expunction statute you mention. Compare id. art. 45.0541
(expunction of failure to attend school offense records), with id. art. 55.0l(a) (general expunction
statute). Article 45.0541 further explains that the expunction order applies to "the conviction,
complaints, verdicts, sentences, and other documents relating to the offense [in] ... the individual's
record." Id. art. 45.0541(c). And while the article states that the order applies to such documents,
"including any documents in the possession of a school district or law enforcement agency," it is
not limited to those governmental entities. Id.; see TEX. Gov'T CODE § 311.005(13) (stating that
"includes" and "including" in a statute "are terms of enlargement and not of limitation or exclusive
enumeration"). Thus, documents that are maintained by a juvenile probation department in an
individual's record and that otherwise meet the specification of documents in article 45.0541 are
subject to expunction under that article. As you describe them, referral documents in possession
of a juvenile probation department issued by a court adjudicating an offense under former section
25.094 of the Education Code would likely be subject to expunction as constituting a "record
relating to the conviction or complaint." TEX. CODE CRIM. PROC. art. 45.0541(b).
Your second question is "what impact, if any, does the expunction have on the juvenile
records related to the contempt referral and any disposition of that referral." Request Letter at 2,
4. More specifically, you ask whether expunction "requires any findings related to those records
to be set aside and, if so, what procedure is to be followed given these are juvenile records." Id.
at 4. As you note, the Legislature has not provided a specific procedure for expunging applicable
records from an individual's record. Id. at 4. Thus it will be necessary for the juvenile probation
department to determine in the first instance how to comply with a court's expunction order
according to its terms and consistent with article 45.0541. See TEX. CODE CRIM. PROC. art.
45.0541 (c) (providing that after a court issues an expunction order, "the individual is released from
Mr. David Reilly - Page 4 (KP-0073)
all disabilities resulting from the conviction or complaint, and the conviction or complaint may not
be shown or made known for any purpose").
Mr. David Reilly - Page 5 (KP-0073)
SUMMARY
An expunction order issued to a juvenile probation
department under article 45.0541 of the Code of Criminal Procedure
would likely apply to documents in the department's possession as
a result of a referral to the juvenile court for delinquent conduct as
defined by subsection 51.03(a)(2) of the Family Code. A juvenile
probation department must determine in the first instance how to
comply with a court's expunction order according to its terms and
consistent with article 45 .0541.
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/4147436/ | Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
February 21, 2017
2017 CO 11
No. 16SC283, Youngquist v. Miner—Workers’ Compensation —Personal
Jurisdiction—Specific Jurisdiction.
In this case, the supreme court considers whether Colorado has jurisdiction to
award benefits for out-of-state work-related injuries and impose a statutory penalty on
an employer under section 8-41-204, C.R.S. (2016), when the employer is not a citizen of
Colorado and has no offices or operations in Colorado, but hired a Colorado citizen
within the state. The supreme court concludes that under the facts of this case,
Colorado lacks personal jurisdiction over the employer and therefore the employer
cannot be subject to the Workers’ Compensation Act of Colorado, sections 8-40-101 to
8-47-209, C.R.S. (2016). Accordingly, the supreme court reverses the judgment of the
court of appeals.
1 The Supreme Court of the State of Colorado
2 2 East 14th Avenue • Denver, Colorado 80203
3 2017 CO 11
4 Supreme Court Case No. 16SC283
5 Certiorari to the Colorado Court of Appeals
6 Court of Appeals Case No. 15CA1165
7 Petitioner:
8 Youngquist Brothers Oil & Gas, Inc.,
9 v.
0 Respondents:
1 Travis Miner and the Industrial Claim Appeals Office of the State of Colorado.
2 Judgment Reversed
3 en banc
4 February 21, 2017
5
6 Attorneys for Petitioner:
7 Treece Alfrey Musat P.C.
8 James B. Fairbanks
9 Kathleen M. Byrne
0 Denver, Colorado
1
2 Attorneys for Respondent Travis Miner:
3 Killian Davis Richter & Mayle, P.C.
4 Damon J. Davis
5 Christopher H. Richter
6 Grand Junction, Colorado
7
8 Attorneys for Respondent Industrial Claim Appeals Office of the State of Colorado:
9 Cynthia H. Coffman, Attorney General
0 Evan P. Brennan, Assistant Attorney General
1 Denver, Colorado
2
3
4
5
6
7
8 CHIEF JUSTICE RICE delivered the Opinion of the Court.
¶1 This case requires us to determine whether Colorado has jurisdiction to award
benefits for out-of-state work-related injuries and impose a statutory penalty on an
employer under section 8-41-204, C.R.S. (2016), when the employer is not a citizen of
Colorado and has no offices or operations in Colorado, but hired a Colorado citizen
within the state. We hold that on the facts presented here, Colorado lacks personal
jurisdiction over the employer.1
I. Facts and Procedural History
¶2 Respondent Travis Miner was a resident of Colorado when a friend told him that
Petitioner Youngquist Brothers Oil & Gas, Inc. (“Youngquist”), a North Dakota
corporation, was looking for employees to work on its oil rigs in North Dakota. On the
morning of December 23, 2013, from his home in Colorado, Miner applied online for a
job as a derrickhand for Youngquist. That afternoon, a representative from Youngquist
called Miner to conduct a phone interview. Miner was hired during the call, and the
representative asked if Miner could come to North Dakota the next day. Miner said
that he could, and Youngquist then purchased Miner a plane ticket from Grand
Junction to North Dakota and e-mailed it to him.
1 We granted certiorari on the following issue:
Whether the court of appeals erred in concluding that Colorado has
jurisdiction to award benefits for out-of-state work-related injuries and
impose a statutory penalty on the employer under the Workers’
Compensation Act, section 8-41-204, C.R.S. (2015), when the employer is
not a citizen of Colorado, has no offices or operations in Colorado, but
hired a Colorado citizen within the state.
2
¶3 When Miner arrived at the work site on December 24, he completed paperwork,
including a W-2 tax withholdings form and an I-9 eligibility for employment form. On
the paperwork, Miner indicated his residence was in Grand Junction, Colorado. Once
he filled out the paperwork, Miner started working as a derrickhand.
¶4 On December 25, during his second shift working for Youngquist, Miner was
injured. He did not report the injury right away but eventually reported it on
December 29. He then returned to Colorado. Youngquist, which had workers’
compensation insurance in North Dakota, reported Miner’s injury to North Dakota’s
workers’ compensation agency. North Dakota denied Miner’s workers’ compensation
claim because Miner had a pre-existing back injury, and Miner did not appeal the
denial. Miner then sought Colorado workers’ compensation benefits, and in October
2014, a Colorado administrative law judge (“ALJ”) conducted a hearing.
¶5 The ALJ found that Miner had suffered a compensable work-related injury and
awarded him benefits. The ALJ also determined that Miner was hired in Colorado and
was injured within six months of leaving Colorado, meaning Miner’s claim was subject
to the Workers’ Compensation Act of Colorado (“Act”), sections 8-40-101 to 8-47-209,
C.R.S. (2016). The ALJ also imposed a fifty-percent penalty on Youngquist for failing to
carry workers’ compensation insurance in Colorado, as mandated by the Act. See
§ 8-43-408(1), C.R.S. (2016).
¶6 Youngquist appealed to the Industrial Claim Appeals Office of the State of
Colorado which affirmed the ALJ’s Order. Then, Youngquist appealed to the court of
appeals, arguing that Colorado lacked personal jurisdiction over it and that it therefore
3
was not subject to the Act. The court disagreed and affirmed the ALJ’s Order.
Youngquist Bros. Oil & Gas, Inc. v. ICAO, 2016 COA 31, ¶¶ 2, 10, __ P.3d __. We
granted certiorari. We now reverse the court of appeals.
II. Analysis
¶7 The crux of the issue before us is whether Colorado may constitutionally exercise
personal jurisdiction over Youngquist for the purposes of Miner’s workers’
compensation claim. We hold that Youngquist did not have sufficient minimum
contacts with Colorado for the state to exercise personal jurisdiction over Youngquist.
Therefore, Youngquist cannot be constitutionally subject to the Act.
A. Standard of Review
¶8 Whether the facts as found by the ALJ support the exercise of personal
jurisdiction is reviewed de novo. See Archangel Diamond Corp. v. Lukoil, 123 P.3d
1187, 1192 (Colo. 2005), as modified on denial of reh’g (Dec. 19, 2005).
B. Personal Jurisdiction
¶9 For a Colorado court to exercise jurisdiction over a non-resident defendant, the
court must find jurisdiction under an applicable statute, and such a finding must
comport with due process. See id. at 1193.
¶10 Like other states, Colorado has promulgated statutes that govern benefits claims
for workers who are injured in the course and scope of their employment. Specifically,
the General Assembly promulgated the Act and outlined in the Act’s extraterritorial
provision, section 8-41-204, when it is appropriate for Colorado to exercise jurisdiction
over workers’ compensation claims arising from injuries that occur outside of Colorado.
4
This section provides that an employee is entitled to workers’ compensation benefits
when an injury occurs outside Colorado, so long as the injured worker was “hired” in
Colorado and not more than six months have elapsed since the employee left Colorado.
§ 18-41-204. The parties do not dispute that Miner’s injuries occurred outside of
Colorado, that Miner was hired while in Colorado, and that the injury occurred within
six months of Miner’s leaving Colorado. Therefore, there is no dispute that Youngquist
is subject to the Act’s extraterritorial provision. Instead, the parties dispute whether the
Act can constitutionally be applied to Youngquist. Specifically, Youngquist contends
that it has insufficient contacts with Colorado, and that Colorado therefore may not
constitutionally exercise personal jurisdiction over it. As a result, Youngquist asserts
that the ALJ’s decision awarding benefits to Miner and imposing penalties on it
pursuant to the Act violated its due process rights.
¶11 The due process clauses of the United States and Colorado constitutions operate
to limit a state’s exercise of personal jurisdiction over non-resident defendants. See
Keefe v. Kirschenbaum & Kirschenbaum, P.C., 40 P.3d 1267, 1270 (Colo. 2002);
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413–14 (1984).
Specifically, due process requires that a non-resident corporate defendant have “certain
minimum contacts with [the forum] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). “The quantity and nature of the minimum contacts required depends on
whether the plaintiff alleges specific or general jurisdiction.” Archangel, 123 P.3d at
5
1194. Here, because no party asserts that Youngquist is subject to general jurisdiction,
we discuss only specific jurisdiction.
¶12 “Specific jurisdiction is properly exercised where the injuries triggering litigation
arise out of and are related to ‘activities that are significant and purposefully directed
by the defendant at residents of the forum.’” Id. (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)). To determine whether the defendant has
sufficient minimum contacts, we consider “(1) whether the defendant purposefully
availed himself of the privilege of conducting business in the forum state, and (2),
whether the litigation ‘arises out of’ the defendant’s forum-related contacts.” Id. The
“’purposeful availment’ requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of random or fortuitous contacts or the unilateral activity
of [a third party].” Burger King, 471 U.S. at 475 (internal quotation marks and citations
omitted). “[S]ingle or occasional acts related to the forum may not be sufficient to
establish jurisdiction if their nature and quality and the circumstances of their
commission create only an ‘attenuated’ affiliation with the forum.” Keefe, 40 P.3d at
1271 (citing Burger King, 471 U.S. at 475–76; Travelers Health Ass’n v. Virginia, 339 U.S.
643, 648 (1950)). However, “when a defendant has deliberately created ‘continuing
obligations’ between himself and residents of the forum, he has manifestly availed
himself of the privilege of conducting business there.” Id. Ultimately, the question of
jurisdiction does not turn on “mechanical tests or conceptualistic theories of the place of
contracting or performance.” Id. at 1272. Instead, it often involves an “ad hoc analysis
of the facts.” Id.
6
¶13 Once it is established that a defendant has the requisite minimum contacts,
“these contacts may be considered in light of other factors to determine whether the
assertion of personal jurisdiction would comport with ‘fair play and substantial
justice.’” Id. at 1271 (citing Burger King, 471 U.S. at 476). These “fairness factors”
include “the burden on the defendant, the forum state’s interest in adjudicating the
dispute, and the plaintiff’s interest in obtaining convenient and effective relief.” Id.
C. Personal Jurisdiction over Youngquist
¶14 Here, Youngquist’s contact with Colorado was limited—a representative from
Youngquist made a phone call to Miner while Miner was in Colorado in response to an
employment inquiry made by Miner, and then Youngquist paid for Miner to fly to
North Dakota. Though the parties do not dispute that Youngquist hired Miner during
this phone call, this fact alone is not dispositive of jurisdiction. Instead, Youngquist’s
contact with Colorado creates only the “attenuated affiliation with the forum” deemed
insufficient to establish jurisdiction. See id. A single responsive telephone call followed
by payment for a ticket cannot constitute purposeful availment of the privileges of
conducting business inside of Colorado if the requirement of purposeful availment is to
be meaningful. This contact is better characterized as “random and fortuitous contact”
with Colorado. See Burger King, 471 U.S. at 475. For example, Miner could have easily
been in another state when a Youngquist representative called him and he then could
have flown from that state to North Dakota. Therefore, Youngquist’s contact with
Colorado was unintentional—it was simply “random and fortuitous” that Youngquist
contacted Miner while he was in Colorado.
7
¶15 Moreover, Youngquist’s actions were neither “significant” nor “purposefully
directed at residents of the forum.” See Archangel, 123 P.3d at 1194. It was at best
coincidental that Miner, or any job applicant to whom Youngquist responded, was in
and from Colorado.2 Youngquist did not specifically recruit Miner or other Colorado
residents, its representative did not physically come to Colorado, and it has no physical
business location in Colorado. Ultimately, Youngquist did not purposefully avail itself
of the benefits and protections of Colorado’s laws and does not have sufficient
minimum contacts with Colorado for Colorado to exercise personal jurisdiction over it.
Therefore, Youngquist cannot constitutionally be subject to the Act. As such, we do not
need to reach the second step of the personal jurisdiction analysis of whether or not
subjecting Youngquist to personal jurisdiction comported with fair play and substantial
justice.3
2 Miner attempts to characterize Youngquist as recruiting employees from Colorado to
work on its North Dakota oil rigs. However, the record establishes that Youngquist
recruits from all over the United States. During the hearing before the ALJ, a
Youngquist employee testified that Youngquist hires employees from places where oil
and gas industries are prevalent, and he listed Texas, Oklahoma, Indiana, and Colorado
as examples. That workers with skills relevant to the oil and gas industry can generally
be found in states that have the resources to support that industry is not surprising.
This does not constitute evidence that Youngquist actively recruits employees from any
particular state.
3 Nonetheless, we acknowledge that if Youngquist had sufficient minimum contacts
with Colorado, it is likely that the “fairness factors” would weigh heavily towards a
finding of jurisdiction. Namely, as evidenced by section 8-41-204, Colorado has an
interest in providing redress for injured residents and Miner has an obvious interest in
obtaining relief.
8
D. Minimum Contacts and Workers’ Compensation Claims
¶16 Relying on Alaska Packers Ass’n v. Industrial Accident Commission, 294 U.S. 532
(1935), the court of appeals concluded that the above minimum contacts analysis is
different for workers’ compensation cases because such cases do not require the same
extent of contacts as other types of cases. Youngquist, ¶ 25. However, this reliance on
Alaska Packers was misplaced—workers’ compensation cases require the same
constitutional analysis as all other cases.
¶17 In Alaska Packers, the United States Supreme Court upheld an extraterritorial
provision in a workers’ compensation statute that is similar to section 8-41-204. 294 U.S.
at 541. In that case, an employee entered into a written employment contract with the
Alaska Packers Association (“Alaska Packers”) in San Francisco to work in Alaska for
the salmon canning season. Id. at 538. The contract stipulated that the parties were
subject to and bound by the Alaska Workmen’s Compensation Law. Id. The employee
was subsequently injured in Alaska. Id. Upon returning to California, the employee
filed a successful workers’ compensation claim in California. Id. Even though the
parties had agreed to use Alaska’s workers’ compensation law and the employee was
injured in Alaska, the Court upheld the award of California workers’ compensation. Id.
at 549. The Court concluded that California’s extraterritorial provision did not violate
due process, even though California was imposing its own laws on an injury sustained
in another state. Id. at 541.
¶18 The court of appeals concluded that since the United States Supreme Court held
in Alaska Packers that California’s extraterritorial provision did not lack a rational basis
9
or involve any arbitrary or unreasonable exercise of state power, similar extraterritorial
provisions (like section 8-41-204) are unlikely to violate due process. Youngquist, ¶ 30.
However, Alaska Packers is not dispositive of the question before us because the Court
assumed the existence of personal jurisdiction in California over Alaska Packers.
Indeed, the Court noted that Alaska Packers was “doing business” in California. See
Alaska Packers, 294 U.S. at 538. Instead, Alaska Packers was challenging the fact that it
was being subjected to California’s workers’ compensation law even where the relevant
contract explicitly dictated that Alaska’s workers’ compensation law would be binding
on an injury suffered in Alaska. Id. at 539. Thus, the case did not involve a dispute
about personal jurisdiction, but rather one of due process and full faith and credit.
¶19 Moreover, Alaska Packers was decided ten years before International Shoe,
which was the first in a long line of United States Supreme Court cases introducing the
now-applicable minimum contacts analysis. Therefore, it is inapposite to rely on Alaska
Packers for the proposition that the minimum contacts analysis is somehow different
for workers’ compensation cases. Ultimately, this court must consider only whether or
not there were sufficient minimum contacts under International Shoe and its progeny
for Colorado to properly exercise personal jurisdiction over Youngquist for the
purposes of Miner’s workers’ compensation claim.
III. Conclusion
¶20 For the foregoing reasons, we reverse the judgment of the court of appeals and
remand the case to that court with instructions to return the case to the Industrial Claim
Appeals Office to vacate its judgment consistent with this opinion.
10 | 01-03-2023 | 02-22-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124928/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 688 MAL 2016
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
FRANKLIN WILLIAMS, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 9th day of February, 2017, the Petition for Allowance of Appeal
is DENIED. | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129878/ | QBfficeof the !ZlttornepQheral
&ate of. ZEexas
DAN MORALES September 6,1994
ATTORNEY
GENERAL
Honorable Charles D. Johnson Qpiion No. DM-303
County Attorney
Dimmit county courthouse Re: Whether the county auditor oath of offic
Charring Springs, Texas 78834 provision, Local Govermnent Code $84.007(b)
prevails over chapter 171 of the Low
Government Code (RQ-572)
Dear Mr. Johnson:
On behalf of the county auditor of Diit County, you ash whether the county
auditor may also be employed as the executive director of a private, non-profit housing
corporation. You explain that the non-profit housing corporation at issue was created in
1986. At that time, the person who is now the wunty auditor was hired as its executive
director, at a s&y which is set by its board of directors.
Although the non-profit housing corporation is a private venture, it has an eco-
nomic relationship with the wunty. The wunty has dedicated certain economic
development funds to the non-profit housing corporation, namely the interest the county
receives on an economic development loan that the county made to a private business.
The wunty also provides the non-profit housing corporation with office space and
telephone and photocopying services. In 1989, the district judges appointed the executive
director of the non-profit housing corporation as county auditor and he began receiving a
county salary. Since that time, he has continued to serve, and to receive a salary, as
executive director of the non-profit housing corporation.
On the basis of the foregoing facts, you ash whether the wunty auditor may also
be employed as the executive director of the non-profit housing corporation. Because the
non-profit housing corporation is a private venture, the wumy auditor’s position as its
executive director does not implicate the Texas Constitution’s dual office holding
provisions. Tex. Const. art. XVJ, $5 33, 40. For the same reason, this instance of dual
employment does not implicate the common-law doctrine of incompatibiity. See Thomas
v. Abernatb County Line Itip. Sch. Did., 290 SW. 152 (Tex. Comm’n App. 1927,
judgm’t adopted); Srure ex rel. Brennan v. Martin, 51 S.W.2d 815 (Tex. Civ. App.-San
Antonio 1932, no writ). This situation does implicate the county auditor oath of office
provision, Local Gov’t Code 3 84.007(b), and chapter 171 of the Local Government
Code, however.
p. 1622
Honorable Charles D. Johnson - Page 2 (~~-303)
The wunty auditor’s oath of office is set forth in section 84.007 of the Local
Government Code, which provides in pertinent part:
(b) The wunty auditor must take the 05&l oath and a written
oath that lists the positions of public, and private trust previously held
and the length of service in each of those positions and that states:
(1) that he has the qualifications requhed by this chapter;
and
hut he will not be persumdlly interested in a wnbvrct
(2)
with the mm@.
Id. (emphasis added). This provision prohibits the wunty auditor from having a personal
interest in any county contract. In Attorney General Opinion V-381 (1947), this 05ce
concluded that the now-repealed statutory predecessor to the county auditor oath of office
provision, article 1649, V.T.C.S., in conjunction with a Penal Code provision, prohibited a
county auditor from contracting with the county to provide it with telephone services,
offiwrs’bonds, or electrical equipment. Sii, in Attorney General Opiion WW-1241
(1%2), this 05ce concluded that now-repealed article 1649, in wnjunction with now-
repealed article 2364, prohibited a county auditor f?om owning stock in a wrporation
which had business dealings with the wunty. Although you do not mention any specific
wntmcts, it seems likely from the circumstances described in your letter that the county
has a wntract with the non-profit housing corporation and with the private business which
has an economic development grant, the interest on which the county has dedicated to the
non-profit housing corporation.
The crucial question is whether the wunty auditor has a “personal interest” in
either of these contracts. This 05ce has construed the term “interest” in similar statutes
to mean “a direct personal or pecuniary interest.” See Attorney General Opiion DM-109
(1992). We believe that section 84.007(b) prohibits a wunty auditor from having a direct
personal or pecuniary interest in any county contract, and requires that he or she must
divest himself or herself of such an interest in order to hold office. The determination
whether the county auditor of Dimmit County has such an interest in a particular county
wntract involves questions of fact which are beyond the scope of the opinion process.
The situation you describe also implicates the wnflicts of interest provisions
applicable to local public officials, including wunty auditors,’ in chapter 17 1 of the Local
‘M 171.001(l) of the Local Govanmnt cdeduieestheteIm”localpublicoaiciat”to
mcaa:
o. 1623
Honorable Charles D. Johnson - Page 3 (DM-303)
Oovemment Code.2 Section 171.004 of the Local Government Code requires a local
public official, who has a “substantial interest” in a business entity, to submit an affidavit
disclosing that interest “before a vote or decision on any matter involving the business
entity” and to abstain from finther participation in the matter if the action would “have a
special economic elfect on the business entity that is distinguishable from the e&t onthe
public.” Local Gov’t Code 8 171.004(a)(l). The violation of this provision is a class A
misdemeanor. Id. 8 171.003. The term “business entity” includes a non-profit wrpo-
ration. See id. 0 171.001(2) (de6ning “business entity”); Attorney GenersJ Opiion
JM-424 (1986). A person has a “substantial interest” in a business entity if %nds
received by the person from the business entity exceed 10 percent of the person’s gross
income for the previous year.” Id. $171.002(a)(z).
Amuming that the wunty auditor’s inwme as executive director exceeded 10
percent of his gross income for the previous year, that his official duties require a “vote or
decision”s on a matter involving the non-profit housing wrporation or the private business
which has an economic development grant, and that he is otherwise within the criteria set
out in Local Government Code, chapter 171, he would be able to wntinue his employ-
ment with the non-profit housing corporation by complying with the requirements of
section 171.004. Chapter 171 would thus permit the county auditor to have a personal
interest in a wntract with the county, while section 84.007(b) expressly bars the county
auditor from being “personally interested in a contract with the county.” The two
provisions would thus wntlict as applied to the wunty auditor.
Honorable Charles D. Johnson - Page 4 (~~-303)
The Code Construction Act, God Code ch. 3 11. provides as follows:
(a) If a general provision wntlicts with a special or local
provision, the provisions shag be wnstrued, if possible, so that effect
is given to both.
(b) If the wntlict between the general provision and the special
or local provision is irrewacilable, the special or local provision
prevails as an exception to the general provision. unless the general
provisionisthelaterenactmentandthemanifestintentisthat
general provision prevail.
Gov’t Code $311.026; see aLso GoAm v. Luke. 356 S.W.2d 138 (Tot. 1962);
T-ndv. Terre& 16 S.W.2d 1063 (Tex. 1929). Section 84.007(b) of the Local
Govemment Code expressly applies only to county auditors. while chapter 171 of the
code applies to local public officials in general. For the reasons stated above, it is not
possible to give e&ct to both chapter 171 and section 84.007(b) to the extent of conflict.
Therefore, we must apply the rule of statutory wnstruction set forth in Government Code
section 3 11.026(b) to the extent of wn5ict.
The statutory predecessor to section 84.007(b), the specific provision, was
adopted in 1905, while the statutory predecessor to chapter 171 was adopted in 1983.
See Acts 1983,68th Leg., ch. 640, at 4079; Acts 1905,29th Leg., ch. 161, at 381. Given
the breadth of the detinition of “local public official” in chapter 171.4 the scope of the
wnduct which it reguiates,~ and the detailed requirements6 and penalties7 it imposes, we
believe that the kgislature intended for chapter 171 to prevail over the wunty auditor oath
of office provision in section 84.007(b) to the extent of conflict. Because chapter 171 is
the later enacted statute and we believe that it is the intent of the legislature for chapter
171 to prevail over the specitic wunty auditor oath of 05ce provision in section
84.007(b), we conclude that chapter 171 prevails over section 84.007(b) to the extent of
wnilict. See ah Attorney General Opiion DM-279 (1993) (wnchtding that Local Gov’t
ch. 171 imphedly modified provisions setting forth county wmmissioners oath, Local
Goti Code 3 8 1.002).
You have not supplied this office with sufficient information to determine
deiinitively whether the county auditor has a “substantial interest” in the non-profit
‘Lacal Gob4Gde 4 171.001(l) (de6oing “localpublic otxcial”);s?e sup wte 1.
5~LocalGorhCode~171.004(govcminglocalplblic~~pacticipptioninvotesor
dWi6lOllS).
6&e id.
‘See id. 0 171.003. We wte Uw the kgishue has net enacted a penally for violelbns of
seuion 84.007@)of the IAlcAlclowmwa code.
p. 1625
Honorable Charles D. Johnson - Page 3 (~~-303)
housing corporation or whether the county auditor must make “decisions” on matters that
affect the non-profit housing corporation. See supro note 3. Amuming that the county
auditor’s income as executive director of the non-profit housing corporation exceeds 10
percent of his gross income for the previous year and that he must m&e “decisions” on
matters that a&ct it, he must adhere to the requirements set forth in chapter 171 of the
Local Oovemment Code, inch&g submitting an atWavit and abstahdng gem partici-
pating in any decision* which would “have a special economic effect” on the non-profit
homing wrporation.9
SUMMARY
Chapta 171 of the Local Governmen tCodeprevailsoverthe
county auditor oath of office provision, Local Goti Code
3 84.007(b), to the extent of wnflict. A county auditor who is
employed as the acecutive director of a private, non-profit housing
wrporation which receives timcling from the county is required to
adhere to the requirements set forth in chapter 171 of the Local
Government Code, if his inwme as executive director exceeds 10
percent of his gross income for the previous year. Attorney General
Opiions V-381 (1947) and WW-1241 (1%2) are overruled to the
extent they are inwnsistent with this opinion.
y~:2?L7L
DAN MORALES
Attorney General of Texas
weMtethatsctions4.o21oftheL+ GnwnmentCe&authori7.csaannayaedtrerreht~
asismns and provides that an s&tarn “during the abmnx or unavoidabledetention ef the sunny
auditor, my performthe dutiesrequiredby law of the counly auditor.” We do not &de here whether
thispmvisionauthorizaacountyauditorto&legatcdccisionsU,ansgistantinthccvcntoTam~i~of
imcrcat
%tter Opinion No. 88-126 (19%). which held that a county auditm is not prohibitedunder
chapter171 oftheLLlcel GananmentCMefromselliimadmate&lstothecountybutdidnotconsidu
tbc~~oftbccarntyaudi~soathsctfoRhinaection&o.oO7~)ofthcLocalGwcmmentcode,is
wasiuas with this opinion. AttorneyGeoed OpinionsV-381 (1947) aml WW-1241(1%2), which WQT
isaedhgbcfoKthc erWunentefthestalutelyp- tochapter171oftheLccal~t
cc&,areow3mlkdtolheex6wtthcyareiawwistmtwitbdlisopiaioo.
Honorable Charles D. Johnson - Page 6 (DM-303)
JORGE VEGA
Fii Assistant Attorney Gene-ml
DREW T. DURHAh4
Deputy Attorney General for Crimind Justice
JAVJER AGULAR
special Assistant AnorneyGeneral
RENEAHIcK!3
St& solicitor
SARAH J.. SHIRLEY
chair, opinion conuni&
PrcparedbyMaryRCrouter
AssistantAnomeyGeneral
p. 1627 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129867/ | QEWce of the Bttornep @enera
&date of Qexae
DAN MORALES
ATTORNEY
GENERAL
January lo,1995
Ms. Rebecca Lightsey Opinion No. DM-3 14
Interim Commissioner of Insurance
Texas Department of Insurance Re: Whether the Department of Insurance
P.O. Box 149104 may, pursuant to Insurance Code article
Austin, Texas 78714-9104 3.50-6A license noninsurance entities that
offer via&al settlement agreements, and
related questions (RQ-663)
Dear Ms. Lightsey:
Your predecessor in office asked us four questions about Insurance Code (“code”)
article 3.50-6A:
1. Does article 3.50-6A authorize the Department of Insurance (the
“department”) to license noninsurance entities that offer viatical
settlement agreements?
2. If the answer to the first question is afErmative, does article
3.50-6A authorize the department to charge a fee for such a license?
3. Does article 3.50-6A authorize the commissioner of insurance to
enforce, through the sanctions provided in code article 1.10,
subsection 7(a),’ rules the department would adopt under article
3.50-6A?
4. If the answer to the third question is negative, does article
3.50-6A authorize the department to report to the attorney general
violations of rules promulgated under article 3.50-6A and to request
that the attorney general file suit to enforce such rules?
All four questions assume as a threshold matter that article 3.50-6A validly
delegates authority to the department to regulate viatical settlements. For the following
reasons, we are of the opinion that article 3.50-6A is invalid as an unconstitutional
‘Subsection7(a) authorizesthe commissionerof insuranceto ordersanctionsagainst “the hold-
or possessor0F a “permit,license. ceticate of authority,certificateof registration,or otherauthotition
issd or existing under [the Commissioner’s]authorityor the authorizationof th[e Iusmauw] code.”
p. 1668
Ms. Rebecca Lightsey - Page 2 (DM-314)
delegation of regulatory authority and therefore that the department has no authority
under this statute to regulate via&l settlements.
The concept of a via&al2 settlement agreement
is simple but controversial: An investor buys the life insurance policy
of someone with AIDS for less than the face value, becomes the
lxeiiciary and makes money when the person dies.
In return, the AIDS suffbrer receives a large amount of cash-
usually 50 to 80 percent of the policy depend@ on his or her life
epxtang-to pay off debts or just enjoy.
Housewright, .wqru note 2. “The viatical industry got started in 1989 because of AIDS,
although people with terminal illness such as cancer are also selling their policies.”
LeighHopper, AIDS Sufferers Swq In.wance for Ready Cash, HOUSTON POST,
Apr. 1, 1994, at Al, A15; c$ Miller, .w~prunote 2 (“The first viaticai company appeared in
19W). Cancer patients make up only ten percent of those now selling their policies but
are expected to become a majority in the near future. Quint, supru note 2, at Cl, C2.
Some viatical companies buy and hold policies, and others “are brokers that Snd buyers
and receive a fee for their service.” Housewright. zqoru note 2.
Article 3.50-644 which was added to the code in the last legislative session, see
Acts 1993,73d Leg., ch. 918, provides as follows:
Definitions
Sec. 1. In this article, ‘%atical settlement” means a contract,
entered into by an insured with a terminal illness who owns a life
insurance policy insuring the life of the insured, under which the
insured assigns or transfers the insurance policy to another person or
entity for valuable consideration.
Regulation by Board
Sec. 2. The board has exclusive jurisdiction in this state to
regulate viatical settlements, regardless of form, other than
transactions governed by The Securities Act (Article 581-1 et seq.,
Vernon’s Texas Civil Statutes).
zkWica/ dcrhea from UICLatin wordviaticum, which mfermdto “the meaey and sqqrites &en
to Rolnallo5eids bcfom risky journeys to far-nm.g legions of th unpin.” Micbacl Quint, Pre-Deuth
C&h: A Busim~ Grmvs,N.Y. TIMES,Nov. 14, 1994, at Cl. Vitical setUcmentsscmuium SE called
‘living bedi&,” Ed Houscwri%t, Investors’ Purchase of AIDS Patients’ Insvroncc Policies Rakes
Ethical Qavtions, DALLASMxumm NEWS,Feb. 7.1994, at Al, or “deathfWu.m,*MarkMiller, Taking
on “‘Ded~Futws, ” NEWSWEEK.
Mar.2 1.1994, at 54.
p. 1669
Ms. RebeccaLightsey - Page 3 (DM-314)
The department is the %oard” to which article 3.50-6A refers. See Ins. Code art.
l.OlA(c).
It is settled law in this state that “some criteria or safeguards” are necessary to the
valid delegation of legislative power to administrative agexies. Texas Antiquities Comm.
v. Daub Gnot~ Communi~ College Dist., 554 S.W.2d 924, 927 (Tex. 1977) (plurality
opinion). The “criteria or safeguards” do not have to be found in the statutory delegation,
however: the separation of powers required by section 1 of article II of the Texas
Constitutions does not forbid that an administrative agency itself make rules estabMing
standards to guide its exercise of power in e&&ration of the legislative purpose, provided
that the rules are made pursuant to power delegated by the legislature and in accordance
with procedures that protect the rights of persons affected by the exercise of regulatory
discretion. See T-p v. Shell Oil Co., 198 S.W.2d 424, 438-39 (Tex. 1946) (on motion
for rehearing), see also Texus Antiquities &mm., 554 S.W.2d at 928 @hnality opinion)
(“We have, ln this case, no standard or criteria either by statute or rule which affords
safeguards for the at&cted parties”). Thus, to constitute a valid delegation of legislative
power, an organic statute that lacks meanin@ standards must at least have a discernible
general regulatory purpose. See Trqp, 198 S.W.2d at 438; see also 1
KENNETHC. DAVIS, AD~~NISTIMIVELAW TREATISEp 3:15, at 209 (2d ed. 1978) (“a
delegation without stun&r& of power to make rules in accordance with proper rule-
making procedure and a delegation without stat&r& of power to work out policy
through case-to-case adjudication based on trial-type hearings should normally be
sustained, whenew?rthe general legidative puqxxe is hcemible”) (last emphasis added).
The legislature must set the public policy of the state, and the agency must exercise its
delegated r&making power within the limits of the primary standards prescribed by the
legislature or implicit in the public policy. See Brown v. Humble Oil & Refining Co., 83
S.W.2d 935. 940-41 (Tex. 1935). Analyzing under these principles, we find that article
3.50-6A has neither standards nor a discernible regulatory purpose.
Article 3.50-6A does not express any standards or guidelines for regulation, nor
can we tier from readii the article in pari muteria with the rest of the code any
legislative intent as to such standards or guidelines. C’ Car&m v. Lrmdon, 342 U.S. 524,
544 (1952) (holding that Lntemal Security Act of 1950 was not unconstitutional
delegation of r&making authority because other statutes provided standards for
determming what aliens were subject to deportation and thus limited attorney general’s
p. 1670
Ms. Rebecca Lightsey - Page 4 (DM-314)
authority under Internal Security Act of 1950 to detain such aliens without bail pending
deportation proceeding). For instance, we cBMot read code article 1.lOA, which
authorizes the commissioner of insurance to issue a cease and desist order in certain
circumstances against a person “engaging in the business of insurance,” as being applicable
to a viatical company unless that company in fact engages in some act in Texas that
con&utesthebusinessof~ asde6nedincodeartick.1.14-1.4 Thesameistrue
of code article 21.21, which prohibits certain “u&r methods of competition or unfair or
deceptive acts or practices [m the business of insurance].”
2.Thcmakingofol ~mmalrc,~guarpntoro~~,aoY
contmztdguamntyorsurdysbipasavocationandaotmerelyincidentaltoany
otlmlegitimatcbusiwmnr~tydtbcgwmatnrnrmrcty.
3.TlEtakiagorraxivhgofanyapplicatiorlforiaarrana.
4. The mwiviug or cdlaXion of any pmndum, commission,membership
fccs,asscsrmcnts,duesorotkrmnsidcrationforanyinwam M pny part
tkreof.
5.Thcimuwceordeuverynfwnuaclsofhuanawe tolwidemaofthia
dateMlopcmma-to&buaiwasintldastate.
7.coouaaingteprwidcindc~Mcapenscrcimburacmnththis
~topersonsdomiciltdinthisstattorforridrslocatcdinthisgatc....
8.l%edoiq~ofaaykindofircam~x bmiincm~~aa
mnstitutiagthedoingefaninsurancc busincsswithiaIhemcaningoftllestahnes
mlatingloia&umwc.
9. T&e doiag or pmposipsfoQany iwurawebusinessin~
~knaay of the foregomgm a mawcrdmi~tocvadethcpmvisioas
10. AnyotkrbanmaionsofbusinCmillthisstatebyanirlaucr.
Ins. Cc& art. 1.14-l. 5 2(a). You do not Cite,nor baw wc fou@ any pmvision in the oxk pmdating
article3.50-6A tbat wudd anthoriz the liccnsurrof Compani~to Cngagein ViatiCalservim.
p. 1671
Ms. RebeccaLightsey - Page 5 (DM-314)
Furthermore, there is no well-established case law, administrative practice, or
background of custom that the legislature could have intended the department to rely on
as standards of practice or policy guidelines for the inthnt viatical industry. We have
found in our research no reported case dealing with viatical settlements.’ The department
has no existing regulatory scheme with crystallii standards of practice that the
legislature could have intended to extend to viatical settlements. C’ Kent v. Lhdles, 357
U.S. 116, 127-28 (1958) (administrative practice prior to enactment of standardless
statute granting secretary of state discretion to grant passports had crystallized into two
grounds for passport denial, citizenship [or allegiance] and unlawful conduct, which were
“the only ones which it could fairly be argued were adopted by Congress in light of prior
administrative practice”).
Compare the legislative delegation of regulatory power in Fahey v. Mallonee, 332
U.S. 245 (1947), where a statute authorized the Federal Home Loan Bank Board to
regulate “the reorganization, consolidation, merger, or liquidation of [building and loan]
associations,” with “the power to appoint a conservator or receiver to take charge of the
affairs of any such association.” Id. at 249. The Court there held that the statute was a
constitutionally valid delegation of legislative fimctions, despite its lack of standards,
because banking was a long-regulated industry with “well-defined practices” for
appointment of conservators and receivers and the courts had “many precedents” in the
field of corporate management that had “crystallized into well-known and generally
acceptable standards.” Id. at 250. Article 3.50-6A, unliie the statute in Fuky, cannot be
construed as conforming to wnstitutionally permissible “‘well-known and generally
acceptable standards” that would limit the department’s rulemaking discretion.” Id.
Article 3.50-6A lacks even a discernible legislative purpose for the delegation of
regulatory power. One author opines in the following words that exactitude should not be
a requirement for the expression of regulatory purpose:
When the legislative draftsmen decide upon the terms of the
delegation, it is for them to decide whether the legislature shall set
the policy in definitive terms, or whether on the other hand the
legislative enactment shall express its general purpose only in terms
of a pious wish, delegating to an administrative agency the
responsibility of actually determining the working policies by which
the generally-phrased legislative desire should be attained.
LAW 71 (1965). We need not consider here
FRANKE. COOPER,STATEADMTNISTRA~VE
how precise an expression of regulatory purpose must be to pass muster under the Texas
%nly a handful of states have laws regulatingthe industry. Ernest Sander, Grim Reapers,
Aufam AMEIUCAN-STATESMAN. May 1,1994, at Jl, 16 (listing California,lndiana, Kansas,New Mexico,
and New York). Early last year the National Associationof lnsunce Commissionersadopted model
legislationfor stateregulationof viaticalsettlements.See id. Viatical8ettlementsModelAct (Nat’1Ass’n
of Ins. c4Xnm’rs1994).
p. 1672
Ms.RebewaLightsey - Page 6 (DM-314)
Constitution, for article 3.50-6A lacks the expression of even a “pious wish” or “ge.neraIly-
phrased legislative desire.” Compare the legislative purpose in the statutory delegation
upheld in the Trupp case: “for the wnwrvation of crude petroleum oil and natural gas and
to prevent the waste thereof” V.T.C.S. art. 6029. repealed by Acts 1977,65th Leg., ch.
871, art. I, 5 2(a)(2); see Trqp, 198 S.WSd at 438. There is no discernible implication of
legislative purpose from the statute’s expression of “via&al settlements” as the subject
matter to be regulated.
Fiiy, we do not find in the legislative history of article 3.50-6A any statement of
the legislature’s objective for regulation by the department. Furthermore, the House
Committee on Insurance’s analysis for the Seventy-third Legislature’s House Bii 431,
which added article 3.50&A to the code, see Acts 1993, 73d Leg., ch. 918, provides,
surprisingly, ,-It is the opinion of this committee that this bill does not confer rulemaking
authority to a state officer, agency, department or institution.” House Comm. on
Inswanw, Bii halysis, H.B. 43 1.73d Leg. (1993). In the House Research organization
analysis of the House Bii 431 unnamed “other opponents” of the bill are cited for the
following arguments:
unless regulated wrrectly, unscrupulous viatical settlement
operators could prey upon physically or mentally vulnerable and
financially desperate individuals. HB 431 should contain specific
direction to TDI to ensure the protection of wnsumers, such as
regulations that would require wnsumers to seek legal counsel,
operators to offer tax advice and to discuss via&al settlement
options and the establishment of a waiting period for the insured to
reconsider a sale.
Acceptable fee schedules for viatical settlement brokers and
agents should also be implemented to ensure against high profits
made at the expense of the terminahy ill. Currently, a wide range of
fees and expenses are charged for the arrangement of viatical
WttlWlUltS.
House Research won, Bii Analysis, H.B. 431,73d Leg., at 3 (1993). Any or all
of the objectives that the “other opponents” allude to above-prohibiting tmscntpulou~
practices; preventing the exploitation of weak, desperate, or incompetent insumds;
rewiring that the decision to sell one’s life insmwce policy be an informed one;
wntrolling investors’ profits-may have been intended by the legislators to be incorporated
within the article 3.50&t’s textually empty delegation of authority “to regulate viatical
settlements.” Any of these objectives would have served to give purport to the delegation
of regulatory power if there had been an expression in the legislative history of such
objectives as the sense of the lawmakers. Unfortunately, there is no such expression.
Rather, the purpose of House Bii 431 as stated in the House Committee on Insurance’s
bii analysis, “to clearly establish the jurisdiction of the State Board of Insurance over the
regulation of viatical settlements,” adds no substance to the needed regulatory objective.
p. 1673
Ms. Rebecca Lightsey - Page 7 (DM-314)
We believe the nondelegation doctrine requires that a valid delegation of
. .
admuustratve regulatory power contain either in the. text or in the legislative history of the
organic statute a discemihle legislative regulatory objective. See Trupp, 198 S.W.2d at
438; 1 DAVIS, supru p. 3. A court may not assume the function of formulating an
objective upon which to limit the scope of regulatory power under article 3.50-6A. Such
judicial legislation to formulate regulatory policy would constitute an invasion of a
nondelegable responsibiity of representative government, see Stephen Koslow,
S-em Adminishztive A+dication, 22 ADMIN.L. REV. 407,420 (l%l), as well as
a function for which the court may not be institutionslly equipped:
In a representative democracy, regulatory policy is likely to be the
product of compromise among a multitude of conflicting interests
and views which find a voice in the legislative process. Logic and
legal analysis, touchstones of the judicial process, so &r as relevant
at all in the work of legislative bodies, play a distinctly subordiite
role. Courts cannot succeed in simulating that feature of the
legislative process in the fashioning of regulatory goals unless they
are willing openly to assume the role of legislators.
Id. at 420-21. Article 3.50-6A is a good example of a statute that purports to regulate a
matter (viatical settlements) involving contlicting interests (persons with terminal illnesses,
viatical companies, investors). Although this statute ought to voice some compromise
among the congicting interests in the form of a discernible objective, it in fact is mute.
Because there are no standards and no discerniile legislative purpose in the
delegation of regulatory authority in article 3.50-64 we must conclude that the statute
violates the separation of powers principle of the Texas Constitution. See Tex. Const. art.
II, 8 1; cfl Attorney General Opiion JM-1134 (1990) at 4 (statute grant@ Texas Racing
Commission authority to regulate non-pari-mutuel racetracks was unconstitutional
delegation of legislative power). Article 3.50-6A therefore is null and void.
p. 1674
Ms. RebeccaLightsey - Page 8 (DM-314)
SUMMARY
Article 3.50-6A of the Insurance Code is null and void because it
violates the Beparation of powers required by section 1 of article II of
the Texas Constitution in that it provides neither standards nor a
discernible objective in its delegation of regulatory authority to the
DepameM of Insurance.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by James B. Pinson
Assistant Attorney General
p. 1675 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143929/ | Honorable George H. Sheppard
Comptroller of Public Accounts
AUatin, Texas
Dear Sir: Opinion NO. o-2457
Re: Expense account of
Dr. W, 3. Veazy
letter of JUIl8 15, 1940, YOU request an opinion 88
In yO7.U.'
to whether you are authorized to issue a warrant in paym8nt
of an expense account submitted by Dr. W. B. Veazy, an
employee of the State Board and Department of Health. Such
expenses were incUrred by Dr. Veazy on 8 trip made outside
the State of Texas. A8 advised in OCR letter to Dr. Cox on
June 15, 1940, Dr. v88Zy'8 trip wa8 for State bUsin pUr-
However, your question arisea out of the fact that
z","flz&er signed by the Attorney General advialng that the
purpose Of the prOpO88d trip was, in hi8 Opinion, for State
bU8in88S p~rpoaea, had been filed with the Comptroller prior
to the making of the trip and includng of the expenses.
The question is governed b the General Departmental Approm
priation Bill, s. B. 427, yJbthLeg., whioh contains the
following provleion in the general rider, viz:
"No traveling expenses 8haN be incurred by any employee
of any of the dep8rtment8, or other agenoies of the Gover-
ment, outside of the boundaries of the State of Texas, except
for State busi&ess.directly concerning his own department
or agency and no such expenees shall be paid from Stat8
appropriations or out of any local or auxiliary funds by
the State Comptroller to an employee of any agency ofthe
Government, until and unless a written statement, signed by
the Attorney General, advising that the purpose of the pro-
pneed trip, in hi8 Opinion, i8 for 8aid State bU8in888
pUrpO88S; which written opinion shall have been filed in
advance with the State Comptroller, and signed duplicate
thereof with the disbursing officer of such respective agency
of the Government. This provision shall not apply t0 trip8
to Watiington, D.C., made by the Ag&orney General's Department,
whose business before the United States Supreme COLu?tand
certain Federal Commissions is mandatory, nor to the Adjutant
General when appearing in Washington, DLC., before the War
Deportment, nor to members or employees of the Railroad Com-
*.
Honorable George H. Sheppard, Page 2, O-2457
miaaion attending hear1 8, conferencea, or oral argument8
held in other Stat88 or a&in&on, B.C.. and involving rates
and/or transportation matters.'
In respect to the question submitted, the above language quoted
from S. B. 427 is plain and unambiguous. We note your statement
that the argument is made to you that the mrrd "advance,"
. _ . .
as u88d in the rider, means in advanoe ._
Of payment ana not m
advanoe of making the trip. HOweVer, the language of the Act
18 to0 clearly Otherwise. It simply admits of no other construc-
tion than that out of State expenses must not.be incurred until
the written statement of the Attorney General ha8 been obtained
and filed with the Comptroller advising that the purposa of
the propose,dtrip 18 iOr Stat8 bUsin pUI'pOS8S. It is
unfortunate that the claimant did not obtain the statemEt
before making the trip, but you have no alternative.
warrant cannot legally iaaue.
YOUl’SVery trllly
ATTORNEY GENERAL OF TEXlls
sj Glenn R. Lewis
BY
Glenn R. Lewis
A88istant
GRL:BBB
APPROVED JUNE 21, 1940
a/ Gerald C. Mann
ATTORREYGENERAL OF TEXAS
Approved ,Opinion C&amittee
By BWB Chairman : | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143939/ | -.
218
OFFKE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
QDULO
0.MINN
.-001uu
Xoaomblr A. t. Brrag, fr.
CriminalMrtriat Attorney
BllUboro, Teur
Dam siri
or Dtate npn-
tte* ia orrtaia
add attor thr eiieo-
oouatiw .forf4
iaolud* TlotorialRopwon%8tiro, .iathe &e&l*
laturo,#hall hare hlB.or her name &or& on mob
primaq ballot in leh oeuntias, J 088 ad aatn
as
..
hs OT rho has pal6 to thr Countylkxaoutiv.Oom-
mittee of the politioalpart+ whose n~i~tiOD
ho of sho seeks, thr SUEIof tifty DolhrS ($50).
Tt being the purpose oi this h06tto require
c iF&: ant of Tlity Dollars($50) as a pnrsquislte
CL tha name a? tha oandidats plaood on tha
oitloialballot in any primaryslostlonin saoh and
all oouatieshsralnabovssat out.# ,
Ssotioabb of ArticleS oi the Uonstltutionot Texas,
reads, in part, as follows:
shall not',axespia8 othar-
*The I.8gislaturs
rlss providedla this OOnstit~t~on,pass anr looal
or spaoiallaw,euthorlaingr
*And in all other eases when a gsnoral law
aan br'mda appliaablo no looal or spsoiallaw
shall bs snaotsdIprovided, that nothinghsrsin
oontained shall br oonstrusd to prohibitthe
Lsglslaturr?rom passingspaolallaws for ths
reservationof the game and fish of thi8 Stats
4a osrtalnlooalities.~
The followingrulss are pertinentto tEe problemat
hand t
RUlassl~ioetionof oities aad oounties by
population,and legislationagplloablato suah
olassifioation,has gasrally bran sust@lned
w&err a substaati~l,r~asonappearsfor suoh
olassi?ioatlon.
*Xi the olassifloatlon a? oltissor oountlss
is based oa populatian,wEetheran sot is to bs
ngardrd a8 spoolal,and whother its operation Is
uniformthroughoutthe State, drpsnds upon whether
population affordsa fairbasis for ths olassiflaa-
tion with rsfsnnos to the mattapsto whioh it n-
laths,and whether ths result it looempllshssis
in taot a real o&ssifloatlon upon that basis,
and not a designation of a singleoity or oounty
to uhloh alone It shell apply, underthe gulsa OS
~.. 1’
* .
waomblo A* 7, 1#?7aa,
ifr.,740 3
..
Rrkor-Wa8hi4toa
lueh llassifIoatlon, 00. tsr Xumar
QIt7, 98 ma. t88 88 t. 981.9 blth vv *State,l80
Tea. ur.481*4* A.r. (U) ma. :
*TherlasrUlsatloa
840 toa must net is
real or rubstantial dietins PLou, uhloh mn4otr
011, olsss I8 truth, distlwt or dU?uaat fro8
aao*hw &or * l Tharmmust exist areamaablr
l
w$UloatIaa ror the olassifioatioa; thst is,
ihl bUI8 of the llasstileatlea lnro&odRust
hua a ,dnet ml&is8 to the tupow oz,ths
&m * l. t l I MoQulUoa on mmt l*l Oa*ratlom,
pp* 44, 4%
Zt Is olearthatArtfolo 8lM0, br It8 tom@, a)pllor
oril7to oountlw *hati a 70 ulatleaof not lers themfort -
three t&wand aa& not more t& rort7-thr.0thounnd oao htan-
clnd an@%8 all lountleria thL# 8tatehavl4 a popdatloa ot
not ilss~thurslxt7thoasanl&A& not row thanslrtfthousand,
oao hwdrdead la all oountles of this 8tato h&tin@not less
taut ninotpaI&ht thousaM anl sot man then alast~l~o~thow-
an&,rsoordt4to the lastpreorlhg 7obem.fOeasus
when such oouatlssooastituta a W nsoatetito l%mtrIot.*fs
UtiOlO 8~lbO'XS@#hMt t0 kc)tiW ib of &tlolo a of tJ30 ooa-
stitutioa of Tens? Its thlr an attempt 00 thomrt of tho
Legls&tura to oneeta leoal or 8 *la1 lawbra 8~ rnmllaw
lUI ba aa1 has boon mdo l pplisabret Wo hold thatf[
t ie.
k aPe wonsd that Bill Oaunty,Tans, he4 a
pulatloa08 iopt -thrso thouanti aad thirt7-dlq
c tholB8Otider J Osasw~ kmrro Oouat7, Teus, a
l
o o o ~f.A
$1~ of sixt7 th o w~,fIve h w& ed~4 so v~~ looorlr4 to-
suah OO~SW, ana %oLonw oOunt7, T&x&sa populatlorr d nlnotp
llghtthowan4 sir hundred and sirrrtphro lahabltaats. koh
oi thosooountk oonstltuto a ropnrontatire bistriotunder
A?tiol* lOcl,RetIs& oitia m4tuter Mu). BLWOaTo uio on4
oouatlas moroovor undor tho 1tOO kern1 Gonsur,to whirh
Artlolo$1.u* wilAppl7.
Ala lopntlosothrrthamthosoemmuatod IB ml.10
81180 ud Art1010 8ll.a of Torma*l)AaEetato4 Qivll Dtatutos,
an ro~I4od for In ths pnoral rtatuto ArtId 8114. An-
lorlr4 to this Mtlolo, *no orndi4ato lo* nomlnatlon for
-
.
223.
EoaorabloA. 7# Br7aai7rr, pas* 4
..
Stat0 Saaator or ~opnsoatatlvo In the Lo s&two shall bo
requiredto pa more thanOn0 IkllW (81.8t1 to 8gIrz;7
aooutlvo oomttoo
I or y other person or aa7
sonittoo l# his portion o? suoh oxpoaso for hording suoh
9m*a
Oanoodlagthe pwor of tho Lo#lslatur& to okssI?7
laoardI to pepulatlon,Is th ellassI?ioatloa
herebased on
poao: Y 8 grouad~t 28 then sas dlffonaoo ln tho oouatlos
pulatioab?mkots, whloh bean a just and proper
nlatloa ci the nrbfootutter of the legIslatloa? Lat u8
oxaminotho praotloalopontlon o? this ststuto. j
0horok.oOOuatf,Tsxaa,aeoor&I~# to tha 1980 Yodoral
ula tio a of ~ort74&00 thswaa& on0 hundred
T Pl oa.u&l&ator for stateroprrsoati~In In that
tount7 4 nqulrod to pa to the Count7 xxocutlvoCam1tt.0
*not pro than On0 Bollar I#l.)t* rot oandI&atos for nprosoata-
tire ln Bill Couat7, Tssas, suoh oountrharlq a po ulatlon of
on17 fort79fourporeoarloss thaa OhorokooCouat7, 48xas,were
nqulred under Art1010bllbo to pa7 ofor to tb Oount Bwoutlro
Oormrittoo tlftt404ars. Burol7,hen is a aoro arbl I rar7 and
oaprlolourr lslootloaof HI4 Oumnt~,the olassl?1oatIoa harI4
no naeonablo rolatloa8hlp to the subjoot matter of the on-
lotmsnt.
Insofaras tho seooa& 7opIllatIoh bnokot Is oo~~srao&,
8Ixt7 thoueea&to sIxt7 thousand,six hundro&,asoordIag to the
19SO ?o&usl 01asu8,Satarm Oount7, Texas, is the on17 oouatr
ofAn& withis ItI 7ot fhlrostoa Oouatrrith a populationof
sIxt7-row thousaab ?our hundredaad oao, aad Uraysoa aouat7
with a pepulatioa04 sM7-five thousand,eight huadrodand
fortf-throoInhabitants as nomplss, a&-otroatod dIffsrontl7.
LIlwwlso,KO~O~BW Want7 with a poprr;latloa e? aIastt-oI&ht
thousand,six huadro& and lIghb7-twoinbabItaats Is tho onl7
oount7 aooordlagto tho 1980 ?edsnl Oomus, ?allIa&within
tho bnokot aiaotpol&htthauson&to aInot7-alnothouBan&.
In oountlorabove tillbda thatpa ulatlonbraokotosn&I&atss
are a~oorao&airr0Pm tnatmoat. t ust * mndidatss for
llootloa to the Loglslaturoin Bill, lkture and YoLonasa
Counties should. bo required to par ?l?t (#SO.OO) dollan to
the Want7 hooutlvo 0uamitt.o and oendI dates for the same o?-
tloo rosldlngLa ooPntio8 o? @water and loss populationshould
pa7 oa17 one (#LaOI &al&r Is lp nt neither ?rtm tho statute
nor aa valid mason w 9aa ooaoo!- vo*
.-
222
Boaorablo A. 7. ErJOn, fr’r, -60 5 ."
i
600 the nosnt oa8sof Ih Parts Iorgusoa ~13t8. 1.
(ad) 408, whoroin the Courb of CriminalAppealssaid1
~onoror, the olassI?IoatIoa soot td be
based men17 on the numbers o? poop10 In the various
oountIos 6Ot a sto lgor sos, o? physloal IB?IMtIss,
or in w other manner whioh would appear to be a just
or masonablo basis for olassl?Ioatloa.Uo are not ua-
8Ia&?ul of the power a64 authorit o? the Loglslaturo
to olassl?7looordiag to popQst:oa,,but rush ~okssl-
?IoatIoawet bo based oa re&mnablo&ZWI6&8 - mm
U??oronoo whioh boars a jwt and proper mntatloa to
the lttmpto4 olassISioatloa ‘dl aat a men-•rbltrw
solootIoa. Willou&b~ aa the OoastItutioa,- Vol. 8,
sea. 458 (1910 tditioa)r This boirq true, wo rail to
890 a roasoaablo basis for the olnrdflsatloa Ia tho
lnstaat 0180. Just whf the poop10 tn Lamar Uouaty and
tho poop108of other oountlu talliagulthin the
presoribe6 populationbraoksts should be aooordsd
dlitomnt treatment to the pooploso? nthor oountlos
o? this Stat0 Is apparent aolthor tic% the Aet nor
frop the moor4 boron us.*
Ooasoquontl~ it 1s the opinion of this dopartmnt
-4 70~ aro rospo9tfuli7lavisoa that Art1010Wgo, Varaoa’s
Annotated ditll gtatutos being Ii.21.lOpb, Aate 1939, 4bth
3.06..r0latia6to pamaonC8$0 the Oouat hooutivo Uarholttoo
by oisbldatos for #t&to nprossntatIrr I osrta$a aountlor
n
Is null and rold,,@kdsame being rbpugaant to S8o. Bibof
Art1018S of *ho #nrtItutloa OS Tous.
Tom tru17 yours
ATTOI1poLT
t.SNMtUCl TEXAS
I
J / | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7295072/ | Petition for certification denied. (See 119 N. J. Super. 579). | 01-03-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4129913/ | @ffice of tije 2UtornepQheral
&date of Qexae
DAN MORALES October 25.1993
ATTORNEY
GENERAL
Honorable Nathan B. Bheinlander Opiion No. DM-268
comal county Attorney
150NorthSeguin,Suite318 Be: Whether House Bii 2087 violates
New Braunfels, Texas 78130-5113 article JII, section 52 of the Texas Consti-
,tution (lQ592)
Dear Mr. Rheinhder:
You ask whether House Bii 2087 violates article Ill, section 52 of the Texas
Consthution. House Big 2087, which was recently enacted by the legislature, see Acts
1993, 73d Leg., ch. 237 (eff Aug. 30, 1993), amends section 263.152 of the Local
Government Code. Chapte-r263, subchapter D of the Local Government Code governs
the disposition of salvage or surplus property by a commissionerscourt of a county. As it
did prior to amendment, section 263.152 authorizes a commissioners court to sell such
property by competitive bid or auction, Local Gov’t Code 8 263.152(a)(l), or to o&r the
property as a trade-in for new property, id.5 263.152(a)(Z). Section 263.152(a)(3)
spedicfdly authorizes a court to
order any of the property to be destroyed or otherwise disposed of as
worthless ifthe commissionerscourt undertakes to sell that property
under Subdivision (1) and is unable to do so because no bids are
made.
Id.5 263.152(a)(3). Section 263.155 of the Local Government Code requires a
conunissioners court to keep records of property disposed of pursuant to this provision for
one year.
House Bii 2087 amended section 263.152 by adding subsection (c) which
provides as follows:
The commissioners court may dispose of property under
Subsection (a)(3) by donating the property to a civic or charitable
organimtion located in the county.
You are concerned that this provision runs afoul of article III, section 52 of the Texas
Constitution which provides in pertinent part:
jT]he Legislature shall have no power to authorize any
county. . . of the State to lend its credit or to grant public money or
p. 1402
Honorable Nathan B. Rheinlander - Page 2 (DM-268)
thing of value in aid of, or to‘ any hrdividt& association or
corporation whatsoever.
Tex. Const. art. III, 5 52(a). As explained below, we believe that House Bii 2087 on its
face does not run afoul of this provision.
First, article III, section 52 prohibits the legislature from autborising a county to
“grant . . a thing of value.” House Bii 2087 authorizes county commissioners to donate
“salvage” or “surplus” property only. Under the relevant subchapter of the Local
Government Code, “salvageproperty” means:
personal property, other than items routinely discarded as waste, that
because of use, time, accident, or any other cause is so worn,
damaged, or obsolete that it has no value for the purpose for which it
was oliginally intended.
Local Goti Code 8 263.i51(1). “Surplus property” means property that is not Currently
needed by its owner, is not required for the owtiet’sforeseeable needs, and possesses some
usehlness for the purpose for which it was intended. Id.8 263.151(2). Obkusly,
“salvage”or “surplus”property is generally property which is of little or no use to the
county. Furthermore, House Bii 2087 authorizes a county commissionerscourt to donate
such property only if it has tried and been unable to sell the property because no bids have
been made. For this reason, the property is also of no value to the county for resale
purposes. Assumingthat an item of property is of no use or resale value to the county, we
do not believe that article III, section 52 prohibits a county from donating it to a civic or
charitable organization. Of course, the determination whether a particular item of
property is truly of no use or resale value to the county would involve the resolution of
factual issues and therefore is not amenableto the opinion process.
Even if an item of salvage or surplus property is of some nominal use or value to
the county, we do not believe that disposing of it by donating it in accordance with House
Bii2087will run afbul of article III, section 52. if certain conditions are met. In Attorney
General Opiion MW-373 (1981). this ofllce considered whether the University of Texas
could provide office space, utilities, and telephone service to the University of Texas Law
School Foundation, a nonprofit corporation. This office concluded that the university had
the statutory authority to provide the foundation with these items as “terms and
conditions”attached to the foundation’sdonations under section 65.31(e) of the Education
Code, and themconsidered whether this arrangement would violate article III, section 51,
the legislative counterpart of section 52(a). Attorney General Opiion MW-373 at 8-l 1.
The opinion stated that the constitutional prohibition
requires that a grant by the university to the foundation must serve a
public purpose, appropriate to the kction of a university, and that
adequate consideration must flow to the public. . In addition, the
p. 1403
Honorable Nathan B. Rheiniander - Page 3 (DM-268)
university must maintain some wntrols over the foundation’s
activities, to ensure that the public purpose. is actually
achieved. . If these wnditions are met, the grant by the public
entity is not unwnstitutional.
Id.at9.
We believe that it is possible that the donation of salvage or surplus property
pursuant to House Bill 2087 wuld serve a public purpose and be acwmpanied by
adequate consideration. For example, the donation of a large piece of surplus county
equipment to an organktion which agreed to haul it could serve the public purpose of
disposing of the property. In addition, by relieving the county of the expemes it would
incur in disposing of the item, such as transportation costs and disposal fses, the
agreement to haul it could constitute adequate consideration. Again, whether the
donation of a particular item of salvage or surplus property pursuant to House Bill 2087
meets these constitutional requirements is a question of fact.
Given the potential wnstitutional pitfalls, county wmmissioners should take
special care to ensure that the donation of property pursuant to the new law does not run
afoul of article III, section 52 of the Texas Constitution. Fii, the wunty commissioners
should ensure that the property meets the definition of “salvage”or “surplus”property set
forth in section 263.151 of the Local Government Code. Second, the county
wmmissioners should make a good faith effort to se4 the property by competitive bid or
auction pursuant to subsection (a)(l) of section 263.152. Finally, if the property has even
some very nominal value to the wunty, the county wmmissioners should ensure that the
donation serves a public purpose and is accompaniedby adequate consideration.
SUMMARY
House Bill 2087, which amends Local Govemment Code section
263.152 to authorize a county wmmissioners wurt to donate to
civic or charitable organizations salvage and surplus property that it
has been unable to sell by competitive bid or auction, does not on its
he. violate article III, section 52 of the Texas Constitution. The
donation of a particular item may run afoul of this wnstitutional
prohibition if the property is of value to the county and it is not
donated for a public purpose for adequate consideration.
DAN MORALES
Attorney General of Texas
p. 1404
Honorable Nathan B. Rheinhder - Page 4 (DM-268)
WILL PRYOR
Fii Assistant Attorney General
MARYKELLER
Deputy Attorney Oemeralfor Lit&ion
RENEAHICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Pmpared by Mary R Grouter
AssistrntAttO~OUKMl
p. 1405 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4153961/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Omran Holding Group ) ASBCA No. 60862
)
Under Contract No. W912DS-13-C-0008 )
APPEARANCE FOR THE APPELLANT: R. Dale Holmes, Esq.
Cohen Seglias Pallas Greenhall & Furman PC
Philadelphia, PA
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attorney
James D. Stephens, Esq.
Michael E. Taccino, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: 9 March 2017
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 60862, Appeal of Omran Holding
Group, rendered in conformance with the Board's Charter.
Dated:
JEFFREYD. GARDIN
Recorder, Armed Services
Board of Contract Appeals | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150326/ | THE THIRTEENTH COURT OF APPEALS
13-15-00560-CV
HOUSING & COMMUNITY SERVICES, INC. AND HCS 401, LLC
DBA LANTANA SQUARE APARTMENTS
v.
TEXAS WINDSTORM INSURANCE ASSOCIATION
On Appeal from the
319th District Court of Nueces County, Texas
Trial Cause No. 2014DCV-1361-G
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be affirmed. The Court
orders the judgment of the trial court AFFIRMED. Costs of the appeal are adjudged
against appellants.
We further order this decision certified below for observance.
March 2, 2017 | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4399135/ | Order filed, May 20, 2019.
In The
Fourteenth Court of Appeals
____________
NO. 14-19-00382-CV
____________
HARRIS COUNTY APPRAISAL DISTRICT, Appellant
V.
ANJALI BRAUN, INDIVIDUALLY AND ON BEHALF OF THOSE
SIMILARLY SITUATED, Appellee
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2019-07942
ORDER
The reporter’s record in this case was due May 17, 2019. See Tex. R. App.
P. 35.1. The court has not received a request to extend time for filing the record.
The record has not been filed with the court. Because the reporter’s record has not
been filed timely, we issue the following order.
We order Cynthia Berry, the official court reporter, to file the record in this
appeal within 10 days of the date of this order.
PER CURIAM | 01-03-2023 | 05-21-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4130114/ | Qwice of tip! mtornep Q3eneral
&ate of Qexae
DAN MORALES
Al-rORNEY
GENERAL December 11.1991
Honorable Travis S. Ware Opinion No. DM-67
Chinal District Attorney
Lubbock County Re: Operation of a jail commissary
P. 0. Box 10536 under section 351.0415 of the Local
Lubbock, Texas 794083536 Government Code (RQ-148)
Dear Mr. Ware:
You ask several questions about the operation of a jail commissary under
section 351.0415 of the Local Government Code. Section 351.0415(a) provides as
follows:
The sheriff of a ‘countywith a population of under 1,000,000
according to the last federal census may operate, or contract
with another person to operate, a commissary for the use of the
prisoners committed to the county jail. The commissary must be
operated in accordance with rules adopted by the Commission
on Jail Standards.
The sheriff has exclusive control of the commissary funds and is to maintain
commissary accounts showing the amount of proceeds from the commissary
operation and the amount and purpose of disbursements made from the proceeds.
Id subset. (b). Subsection (c) sets out the purpose for which the sheriff may use
“commissary proceeds.” The county auditor has authority to examine ‘jail
commissary accounts.” Id subset. (d). See genem& Attorney General Opinions
DM-19 (1991); JM-1121 (1989); MW-439 (1982); MW-143 (1980); C-67 (1963);
Letter Qpinion LQ-90-42 (1990).
You describe a situation in which the sheriff has contracted with a third party
for the operation of a jail commissary. and you ask several questions about the
application of section 351.0415 in that context. Your first question is whether the
commissioners court has any authority in regard to the terms and conditions of such
a contract.
p. 335
Honorable Travis S. Ware - Page 2 4DM-67)
Generally, the sheriff does not have authority to contract for the county.
Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Attorney General Opinion DM-19.
In this case, however, the legislature has given the sheriff express authority to enter
into a contract for the operation of a jail commissary. The commissioners court has
no authority to control the sheriffs exercise of discretion in this regard. See
generally Attorney General Opinions JM-1121 (1989); MW-439 (1982); H-1190
(1978). The sheriff must, of course, exercise his discretion in accordance with the
constitution and with his statutory authority.
A significant limitation on the sheriffs authority to contract is the prohibition
in article III, section 51, of the Texas Constitution on the donation of public funds or
property. That provision does not prohibit the sheriff from contracting with a
private party to operate a jail commissary, but it does require that the county obtain
an adequate quid pro quo. Dot&on v. Marshall, 118 S.W.2d 621, 624 (Tex. Civ.
App.--Waco 1938, writ dism’d). You state that the lease in question requires the
operator to provide television sets and to pay 50 cents per square foot annually for
the space used to house the commissary. Whether this particular contractual
arrangement satisfies article III, section 51, is a fact question, which we cannot
resolve in the opinion process.
You also ask whether the operator’s payments to the sheriff are “commissary
proceeds” that must be used for the benefit of inmates. Section 351.0415 makes
clear that any money the sheriff receives that is attributable to the operation of the
commissary is to be used for the benefit of inmates. See generally Attorney General
Opinion MW-439 at 4.
Your third question is whether the county auditor may review the accounts
maintained by the commissary operator. Subsection (b) of section 351.0415
provides that the sheriff has exclusive control of the commissary funds and that the
sheriff is to maintain commissary accounts showing the amount of proceeds from the
commissary operation and the amount and purpose of disbursements made from the
proceeds. Subsection (d) provides as follows:
At least once each quarter of a county’s fiscal year, or more
often if the county auditor desires, the auditor shall, without
advance notice, fully examine the jail commimary accounts. The
auditor shall verify the correctness of the accounts and report
P* 336
Honorable Travis S. Ware - Page 3 (DM-67)
the findings of the examination to the commissioners court of
the county at its next term beginning after the date the audit is
completed.
Taken together, those provisions establish the county auditor’s right of access to
records showing the amount of money taken in by the commissary and the
disbursements from that money. The county auditor cannot be denied access to
such records, even if they are actually maintained by the commissary operator. The
county auditor would have no right to inspect other records of the operator.
SUMMARY
The county commissioners court may not interfere with the
sheriffs exercise of discretion in contracting for the operation of
a jail commissary under section 351.0415 of the Local
Government Code. Any funds the sheriff receives that are
attributable to the operation of the commissary are to be used
for the~benefit of inmates in accordance with section 351.0415.
The county auditor is authorized to review commissary accounts,
even if the accounts are maintained by the operator of the
commissary.
DAN ‘MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General
P- 337
Honorable Travis S. Ware - Page 4 (DM-67)
RENBA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 338 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143954/ | THEATTORNEYGENERAL
OFTEXAS
AUSTIN ~~.'~TExAs
Honorable Adam R. Johnson
Executive Director
State Department of Public Welfare
Austin, Texas
Dear Sir: Opinion No. o-2432
Re: Privilege from disclosure under
Section 31 of S.B. No. 36, 46th
Legislature.
We are pleased to reply to your recent letter in which
you request the opinion of this department as to whether,
under Section 31 of Senate Bill No. 36, 46th Legislature, an
employee of the Department of Public Welfare can be compelled
to disclose in court, in cases involving private parties,
either orally or by the production of the records themselves,
any of the facts and Informationcontained In case records of
applicants for, or recipients of, old age assistance, without
the consent or authorization of such persons.
Section 31 of Senate Bill No. 36, 46th Legislature, pro-
vides as follows:
"All records concerning any applicant or
recipient contemplated in this Act shall be con-
fldential, and shall be open to inspection only
to persons duly authorized by the State, or the
United States, to make such lnspectlon In connec-
tion with their official duties; provided, however,
that factual information in such records shall be
available to applicants and recipients or thei.r
duly authorized agents; provided, further, that
no lists of names of recipients shall be published
ordistributed for purposes of being made parts of
any stat?, county or city records, or for any other
purpose.
In our opinion No. O-2122, to Honorable George Ii. Shep-
pard, Comptroller of Public Accounts, it was held by this
department, In part, that Section 31 applies to records kept
by the Department of Public Welfare and the Comptroller's De-
partment; that the Comptroller's Department is not authorized
to allow the general public to examine certain of the records
within the purview of Section 31; and that the Comptroller's
Bonorable Adam R. Johnson, page 2 O-2432
Department is not authorized to make certified copies of cer-
tain of such records upon application of an individual theref~ox
You pose the further question as to whether the employees
of the Department of Public Welfare, including local county
welfare workers, may, nevertheless, be compelled in court to
divulge facts and information found in case records involving
applicants for, or recipients of, old age assistance.
There can be no doubt but that such case records are
within the purview of Section 31 and are protected from dis-
closure by this statute. It remains only to ascertain If such
extends to processes of the courts, and, if so, If such is a
valid statutory enactment.
The United States Supreme Court in the case of BOSKE vs.
COMINGORE, I77 U.S. 459, 20 Sup. Ct. 701, 44 L, Ed. 846,upheld
a regulation of the Secretary of Treasury, authorized by appro-
priate Federal statutes, forbidding his subordinates to allow
the use of official papers in their custody except for the our-
pose of aiding the collection of the revenues of the United
States. The case involved facts where a collector of internal
revenue had been adjudged in contempt of a Kentucky state court
for,refusing, while giving his deposition , to file copies of
reports in his custody. In affirming the order of the United
States District Court discharging the collector from the custody
of the sheriff, the court declared at p. 469:
'* l * This being the case, we do not per-
ceive upon what ground the regulation In question
can be regarded as inconsistent with law, unless
It be that the records and papers in the office
of a collector of internal revenue are at all times
open of right to inspection and examination by
the public, despite the wishes of the department.
That cannot be admitted. The papers in queation
copies of which were sought from the appellee were
the property of the United States, and were In his
official custody under a regulation forbidding him
to permit their use except for purposes relating to
the collection of the revenues of the United States.
Reasons of public policy may well have suggested the
necessity, in the Interest of the government, of
not allowing access to the records in the offices of
collectors of internal revenue, except as might be
directed by the Secretary of the Treasurer. The
Interests of persons compelled, under the revenue
laws, to furnish information as to their private
business affairs would often be seriously affected
if the disclosures so made were not properly
guarded * l *'
Honorable Adam R. Johnson, page 3 O-2432
The holding of this case was recognized as correct in
the Texas case of CARTER vs. IRVINE, 77 S.W. (2d) 247, in this
language:
"* * * Restrictions imposed on revenue agents
and others by regulations issued by the Treasury
Department with reference to disclosures concern-
ing such returns have been held to have the force
and effect of law, and to constitute immunity to
such agents from enforced disclosures with reference
thereto as witnesses in a state court * l *It
The principles in the matter at hand are recognized by
Prof. Wigmore in his exhaustive treatise on Evidence, wherein
it is declared:
"There are, then, seven or eight distinct
principles which In superficial features tend
often to be confounded . . . (f) There is a genuine
communications--privilege, permitting secrecy
for comnications by informers to official prose-
cutors, by parties or witnesses to a judge, and by
citizens making compulsory reports to the state. * * +
"The policy underlying the principle of para-
graph 2374, ante, is that where the government needs
information for the conduct of its functions, and
the persons possessing the information need the en-
couragement of privacy in order to be induced freely
to make full disclosure, the protection of a privi-
lege should be accorded * * *
"It is some such principle that justifies the
modern creation of a number of privileges, all sta-
tutory in origin, covering sundry matters required
by law to be reported to some administrative of-
ficial. * * *
,,,,~~5~,,;~;~;; facts, required to be disclosed to
fall within the principle, as well
as facts of per&al history in general, disclosed
in the administration of various social welfare
acts. (citin certain of the social welfare acts
of Texas). " $"ifi"ir;,;;E,viv;re, Vol. 8, p. 733, 734,
761, 773, 774, ,
This principle of privilege from disclosure is embodied
in Section 31 of Senate Bill No. 36. It expressly provides that:
"All records concerning any applicant or
Honorable Adam R. Johnson, page 4 O-2432
recipient contemplated in this act shall be con-
fidential, and shall be open to inspection only
to persons duly authorized by the state, or the
United States, to make such inspection in connec-
tion with their official duties."
The only exception is that the factual information shall be
available:to the applicants and recipients, or their agents.
The leglslatlve intent is entirely free from doubt that the
disclosure of the facts and information in the case records to
the public, or to an individual, or in court orally, or by the
bringing of the records into court under any process, is for-
bidden. No constitutional or statutory provision is offended
by this prohibition. The principle of privilege which protects
from disclosure, through the testimony of government officials,
of facts communicated to administrative officials, is, in our
opinion, as embodied in Section 31, a valid exercise of legis-
lative authority.
Accordingly, you are respectfully advised that it Fs
the opinion of this department that employees of the Department
of Public Welfare, including local county welfare workers, can-
not be compelled to appear in court, in cases involving private
parties, and testify as to certain facts or information contain-
ed In case records concerning individuals who apply for or
receive old age assistance and, further, may not be compelled,
under a subpoena duces tecum, to bring such records into court
and disclose the facts and information therein contained.
Trusting that we have adequately answered your inquiry,
we remain
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Zollle C. Steakley
Zollie C. Steakley
Assistant
ZCS:EP:wc
APPROVED JUN 7, 1940
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By &3WB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129996/ | QBfficeof tfy !Zlttornep @eneral
&ate of lEeme
DAN MORALES December 8,1992
.ATT”RNEY
GENERAL
Honorable Thomas E. White Opinion No. DM-186
Hamilton County Attorney
P. 0. Box 83 1 Re: Whether the boundaries of the
Hamilton, Texas 76531 Hamilton Hospital District, described in
the district% authorizing legislation as
coextensive with certain. commissioners
precincts of Hamilton County, change in
accordance with the county’s subsequent
redistricting of those commissioners
precincts (RQ-395)
Dear Mr. White:
You ask about the boundaries of the Hamilton County Hospital District (the
“district”). The bill authorizing the district’s creation was adopted in 1987. Acts
1987,7Oth Leg., 2d C.S., ch. 42, P 1.03, at 131. Ini989, the 1987 enabling legislation
was amended to provide that the district boundaries are to be “coextensive with the
boundaries of commissioners precincts 1,2, and 4 of Hamilton County.” Acts 1989,
71st Leg., ch. 591, 5 1, at 1960. The 1989 bill further specifies that one district
director “shall be elected from each commissioner precinct included in the district
and two directors shall be elected from the district at large.” Id. at 1961.
You advise that since the above-mentioned 1989 amendments, Hamilton
County has redrawn its commissioners precinct lines. You ask whether the district’s
boundaries change in accordance with Hamilton County’s redrawing of its
commissioners precinct lines or whether they remain coextensive with the
boundaries of the county’s commissioners precincts 1,2, and 4 as the latter existed
at the time of the 1989 amendments, which referred to such commissioners precinct
boundaries for purposes of describing the territory of the district. In our opinion,
the district’s boundaries - both externally, and internally for purposes of director
elections-remain coextensive with those of Hamilton County’s commissioners
precincts 1,2, and 4 as the latter existed at the time of the 1989 legislation.
p. 976
Honorable Thomas E. White - Page 2 (IN-186)
We note first that, although we find no Texas cases on point, it has been held
elsewhere that “under ordinary rules of construction,” a delineation of a political
subdivision’s boundary by reference to that of another political subdivision refers to
the boundary as it existed at the time of such delineation. Boca Ckgu Sanitary Df.rz.
v. State, 161 So. 2d 529 (Pla 1964). We think such rules of construction should be
applied in this instance.
Presumably the legislature’s provision for the boundaries of the district in the
1989 legislation resulted from a legislative determination as to what specific
geographic portion of Hamilton County was in need of a hospital district. We think
it unlikely, therefore, that the legislature would have intended that the occasions of
the redrawings of internal commissioners precinct lines by a discreet political entity,
Hamilton County, would have the effect of periodically relocating the district’s
boundaries.1 County commissioners courts, under article V, section 18(a) of the
Texas Constitution have broad powers to alter county commissioners precinct lines
“from tune to time, for the convenience of the people.” See, eg., Attorney General
Opinion 06091 (1945). If the legislature had intended that the county’s redis-
tricting of its commissioners precinct would effect corresponding changes in the
district’s boundaries, potentially of considerable magnitude, we think it would have
specifically provided for such.2
‘The Hamilton County Hospital Diict is a political entity discreet from Hamilton County. It
has its own elected directors, and may impose taxes, issue bonds, make contracts, and exercise powers
of eminent domain. See Acts l987,7Otb Leg., 2d CS., cb. 42, arts. 4,5,7,8. Tbcre are no provisions in
the district’s legislation, however, for alteration of the disk& boundarieJ.
we do not think It *wessaly in this wntext to reach the questioa whether the 1egisLatwc
could constitionaUy have created an arrangement whereby the district’s boumlaries cbangcd in
accordance with county redistsictiog. The possiilc consequences of such an arrangement-that
persons who had voted for the district and its taxiag authority and paid tzrcs would suddenly End
themselvw no longer in the district, and persons who had not previously been induded in the district
would End themselves within it and presumably liable for taxes they had not voted for - might raise
wastihuiod Issues.
Also, please note that we do not understand you to ask about, and M consequently do not
address here, problems tbc districl may encounter with respect to constitutional one-person-one-vote
requirements, given Its continued use of commissioners precinct lines which Hamilton County has
found it advisable, probably, at least in part, out of one-pcrson-onc-vote coosideratioas, to redraw. See,
q., Awy Y. Midland Gwty, 3% U.S. 474 (1968).
p. 977
Honorable Thomas E. White - Page 3 (DM-186)
SUMMARY
The boundaries of the Hamilton County Hospital District,
which are delineated in the district’s enabling legislation, as
amended, by reference to the boundaries of Hamilton County’s
commissioners precincts numbers 1.2, and 4, are not changed as
a result of the county’s subsequent redistricting of said precincts,
but remain coextensive with the boundaries of commissioners
precincts 1, 2. and 4, as they existed at the time of the
legislature’s designation of the district’s boundaries.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEAHrcKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by William Walker
Assistant Attorney General
p. 978 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125041/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 9, 2015
The Honorable Rene M. Pena Opinion No. KP-0023
81st Judicial District Attorney
1327 Third Street Re: Whether a member of a board of trustees
Floresville, Texas 78114 of an independent school district may also
serve as a trustee of a county hospital board
with overlapping jurisdiction (RQ-1234-GA)
Dear Mr. Pena:
You ask whether a trustee of an independent school district may also serve as a trustee on a
county hospital district board where the two governmental entities overlap injurisdiction. 1 You tell
us that the La Vernia Independent School District, on whose behalf you seek an opinion, is located
primarily in Wilson County and overlaps in geographic territory with the Wilson County Memorial
Hospital District. Request Letter at 1.
With certain exceptions not relevant here, the Texas Constitution, article XVI, section 40,
prohibits a person from simultaneously holding more than one "office of emolument." TEX.
CONST. art. XVI,§ 40. "An 'emolument' is compensation paid to the officer and does not include
reimbursement for actual expenses." Tex. Att'y Gen. Op. No. GA-0214 (2004) at 2. Both offices
about which you ask are ones in which a person serves without compensation. See TEX. EDUC:
CODE ANN. § 11.061(d) (West 2012) (providing that trustee of an independent school district
serves without compensation); TEX. SPEC. DIST. CODE ANN. § 1115.057 (West 2014) (governing
the Wilson County Memorial Hospital District and providing that a trustee serves without
compensation). Thus, neither office is one of emolument subject to the constraint in article XVI,
section 40. ·
Absent a constitutional prohibition, we consider the three aspects of the common-law
doctrine of incompatibility: self-appointment, self-employment, and conflicting loyalties. Tex.
Att'y Gen. Op. No. GA-0328 (2005) at 1. Self-appointment incompatibility is derived from the
Texas Supreme Court, which said that "[i]t is because of the obvious incompatibility of being both
a member of a body making the appointment and an appointee of that body that the courts have
with great unanimity throughout the country declared that all officers who have the appointing
1
See Letter from the Honorable Rene M. Pefta, 8 lst Jud. Dist. Att'y, to Office of the Tex. Att'y Gen. at 1
(Dec. 18, 2014), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Rene M. Pena - Page 2 (KP-0023)
power are disqualified for appointment to the offices to which they may appoint." Ehlinger v.
Clark, 8 S.W.2d 666, 674 (Tex. 1928). The self-employment aspect prohibits a person from
holding both an office and an employment that the office supervises. See Tex. Att'y Gen. Op. No.
GA-0536 (2007) at 4 (stating that the key aspect of self-employment incompatibility is
supervision). Because neither of the offices about which you ask appoints or employs the other,
we examine your question under the conflicting-loyalties incompatibility analysis. See Tex. Att'y
Gen. Op. No. GA-0328 (2005) at 1.
The doctrine of conflicting-loyalties incompatibility was first announced by a Texas court
in the case of Thomas v. Abernathy County Line Independent School District, in which the court
held the offices of school trustee and city alderman to be incompatible. Thomas v. Abernathy Cnty.
Line lndep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927,judgm't adopted). The court
said that
there are in the city council or board of aldermen various directory
or supervisory powers exertable in respect to school property
located within the city or town and in respect to the duties of school
trustee performable within its limits--e.g., there might well arise a
conflict of discretion or duty in respect to health, quarantine,
sanitary, and fire prevention regulations. If the same person could
be a school trustee and a member of the city council or board of
aldermen at the same time, school policies, in many important
respects, would be subject to direction of the council or aldermen
instead of to that of the trustees.
Id. (citations omitted). In determining whether two offices are incompatible, "the crucial question
is whether the occupancy of both offices by the same person is detrimental to the public interest
or whether the performance of the duties of one interferes with the performance of those of the
other." State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 930 (Tex. Crim. App. 1994). ·
Where the geographic boundaries of the two entities that are served by a single individual
overlap, the potential for conflicting loyalties increases because the duties of the two offices are
more likely to conflict. See Tex. Att'y Gen. Op. Nos. GA-0786 (2010) at 2, GA-0348 (2005) at 3,
GA-0015 (2003) at 2. In particular, this office has consistently concluded that where "two districts
with overlapping geographical jurisdictions each have the power of taxation, ... the potential for
conflict is insurmountable." Tex. Att'y Gen. Op. No. GA-0032 (2003) at 5; see also Tex. Att'y
Gen. Op. Nos. GA-0786 (2010) at 3-4, JM-1266 (1990) at 4. "Where the object of each district is
to maximize its own revenues, a single individual would have great difficulty in exercising his
duties to two separate and competing masters." Tex. Att'y· Gen. Op. No. GA-0032 (2003) at 5.
A board of trustees of an independent school district, such as the La Vernia Independent
School District, is authorized to levy and collect ad valorem taxes. See TEX. Eouc. CODE ANN.
§ 11.152 (West 2012); see also id. §§ 11.151 l(c)(l)-(2) (authorizing levy of ad valorem taxes for
principal and interest payments on issued bonds and for the maintenance and operation of the
district), 45.001(a)(2) (authorizing the governing board of an independent school district to levy
The Honorable Rene M. Pena - Page 3 (KP-0023)
and collect ad valorem taxes). Likewise, the Wilson County Memorial Hospital District is
authorized to impose ad valorem taxes on property in the district. See TEX. SPEC. DIST. CODE ANN.
§ l l 15.251(a) (West 2014) (governing Wilson County Memorial Hospital District). Because each
of the entities about which you ask has taxing authority in territory that overlaps with the other,
simultaneous service on the governing body of both entities is prohibited by conflicting-loyalties
incompatibility. Thus, a person may not serve as a member of the board of trustees of the La Vernia
Independent School District while simultaneously serving as a member of the board of the Wilson
County Memorial Hospital District.
The Honorable Rene M. Pefia - Page 4 (KP-0023)
SUMMARY
A person may not serve as a member of the board of trustees
of the La Vernia Independent School District while simultaneously
serving as a member of the board of the Wilson County Memorial
Hospital District.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124966/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
June 27, 2016
The Honorable Carlos Omar Garcia Opinion No. KP-0098
79th Judicial District Attorney
Jim Wells and Brooks Counties Re: Requirements for a municipality's
Post Office Drawer 3157 posting of notice regarding the carrying of
Alice, Texas 78333 handguns (RQ-0087-KP)
Dear Mr. Garcia:
You request an opinion on behalf of the City of Alice asking multiple questions concerning
the requirements a city must follow in posting notice about the carrying of handguns at open and
closed meetings of a city council. 1 Subsection 46.035(c) of the Penal Code makes it a criminal
offense to carry a handgun in rooms where a meeting of a governmental entity is held under certain
circumstances:
A license holder commits an offense if the license holder
intentionally, knowingly, or recklessly carries a handgun under the
authority of Subchapter H, Chapter 411, Government Code,
regardless of whether the handgun is concealed or carried in a
shoulder or belt holster, in the room or rooms where a meeting of a
governmental entity is held and if the meeting is an open meeting·
subject to Chapter 551, Government Code, and the entity provided
notice as required by that chapter.
TEX."PENAL CODE§ 46.035(c). Sections 30.06 and 30.07 of the Penal Code provide the language
to be used in a notice to prohibit entry with a concealed handgun and entry with a handgun that is
carried openly. See id.§§ 30.06(c)(3)(A), .07(c)(3)(A). Your questions relate to where and when
a governmental entity may post those notices to exclude the carrying of handguns at meetings. See
Request Letter Attachment at 2.
Each of your five questions assumes that a governmental entity is authorized to prohibit
the carrying of handguns in closed meetings. See id Subsection 46.035(c) makes it a criminal
offense to carry a handgun only in instances when "the meeting is an open meeting subject to
Chapter 551, Government Code." TEX. PENAL CODE§ 46.035( c). "Open" for purposes of chapter
'See Letter from Honorable Carlos Omar Garcia, 79th Judicial Dist. Att'y, to Honorable Ken Paxton, Tex.
Att'y Gen. at 1 (Dec. 28, 2015); Letter from David D. Towler, City Att'y, City of Alice, to Office of the Att'y Gen. at
2 (Dec. 21, 2015) ("Request Letter Attachment"), https://www.texasattomeygeneral.gov/opinions/request-for-
opinion-rqs.
The Honorable Carlos Omar Garcia - Page 2 (KP-0098)
551 of the Government Code is defined as "open to the public." TEX. Gov'T CODE§ 551.001(5).
"Closed meeting" is defined as "a meeting to which the public does not have access." Id.
§ 551.001 (1 ). Because subsection 46.035(c) is expressly limited to open meetings and there is no
reference to closed meetings in either sections 46.03 or 46.035, it is not a criminal offense for
individuals authorized to attend the closed meeting to carry handguns into that meeting unless the
closed meeting is held in a location where handguns can be prohibited through some other
provision of sections 46.03 or 46.035. See TEX. PENAL CODE§§ 30.06(e) ("It is an exception to
the application of this section that the property on which the license holder carries a handgun is
owned or leased by a governmental entity and is not a premises or other place on which the license
holder is prohibited from carrying the handgun under Section 46.03 or 46.035."), .07(e) (same).
Section 4 l I .209 of the Government Code prohibits a state agency or political subdivision from
posting notice prohibiting the carrying of a handgun "unless license holders are prohibited from
carrying a handgun on the premises or other place by Section 46.03 or 46.035, Penal Code." TEX.
Gov'T CODE § 411.209( a). Thus, a city may be liable for a civil penalty if it posts notice under
section 30.06 of the Penal Code prohibiting entry into a closed meeting with a handgun unless the
closed meeting is held in a location where handguns can otherwise be prohibited. See id.
§ 4I l.209(b). 2 Given this conclusion, we answer each of your questions only with regard to
notices prohibiting the carrying of handguns in open meetings of a governmental entity.
Your first three questions ask whether the open carry notice and the concealed carry notice
should be posted at the entrance to the building or the entrance to the meeting room, and whether
a city may "prohibit entry to the entire City Hall, or just to the" meeting room by a person carrying
a handgun. Request Letter Attachment at 2. Subsection 46.035(c) creates an offense for the
carrying of handguns only "in the room or rooms where a meeting of a governmental entity is held
...." TEX. PENAL CODE§ 46.035(c). In construing a statute, our objective is to determine and
give effect to the Legislature's intent, which we do by first looking to the "plain and common
meaning of the statute's words." City of San Antonio v. City of Boerne, I I I S.W.3d 22, 25 (Tex.
2003). By specifically limiting the offense to carrying a handgun in "the room or rooms," the plain
language of the statute makes it clear that the Legislature did not intend this provision to prohibit
the carrying of handguns throughout an entire building but instead only in the specific room or
rooms where an open meeting of a governmental entity is held. See TEX. PENAL CODE§ 46.035.
You note that sections 30.06 and 30.07 of the Penal Code provide language for the notice
that states a licensee "may not enter this property." Request Letter Attachment at 2. The only
property where entry with a handgun is forbidden under subsection 46.035( c) is the meeting room
or rooms, and a governmental entity may not prohibit the carrying of a handgun from a location
2
The Open Meetings Act authorizes governmental bodies to meet in closed session to discuss certain topics,
and the public does not have access to such meetings. See TEX. GOV'T CODE§§ 551.071-.090 (authorizing closed
meetings in specific circumstances), .001(1) (defining a closed meeting as one "to which the public does not have
access"). Thus, while section 46.035 does not authorize a governmental body to exclude the carrying of handguns
from closed meetings, only the members of the governmental body and those individuals invited by the governmental
body have a right to attend a closed meeting. See Tex. Att'y Gen. Op. No. JM-6 (1983) at 1-2 (explaining that only
the members of the governmental body have a right to convene in executive session).
The Honorable Carlos Omar Garcia - Page 3 (KP-0098)
other than those listed under sections 46.03 and 46.035 of the Penal Code. If a governmental entity
posts notice at the entrance to a building, it could suggest that a license holder is prohibited from
carrying a handgun throughout the building when in fact the law provides otherwise.
Governmental entities should therefore place their notices under sections 30.06 and 30.07 of the
Penal Code at the entrance to the room or rooms where an open meeting is held when excluding
the carrying of handguns under subsection 46.035(c). 3 If a governmental entity posts a 30.06
notice indicating that a license holder is prohibited from entering a portion of a building other than
those areas listed in sections 46.03 and 46.035 of the Penal Code, the governmental entity may be
liable for a civil penalty under section 411.209 of the Government Code. See TEX. Gov'T CODE
§ 411.209(a)-(b).
You also ask whether the concealed carry and open carry notices may remain posted at
times when the governmental entity is not meeting. Request Letter Attachment at 2. Section
46.035(c) prohibits the carrying of handguns in the room or rooms where a meeting of a
governmental entity is held only "if the meeting is an open meeting subject to Chapter 551,
Government Code." TEX. PENAL CODE§ 46.035(c). If a room is used for open meetings and for
other purposes, a governmental entity may not provide notice under section 30.06 or 30.07
excluding the carrying of handguns when the room is used for purposes other than an open
meeting.
Assuming that the notices must be posted temporarily, you ask "how long in advance of,
and after, the actual time of the Meeting ... may the Notices be given?" Request Letter Attachment
at 2. The statutory scheme does not establish specific times at which such notices may be posted
and must be removed. It would seem reasonable to conclude, however, that a governmental entity
could post the 30.06 and 30.07 notices at the time the room or rooms are opened to the public for
the open meeting, and the notices should be removed when the open meeting is adjourned.
You also ask whether the timing requirements would be different for notice given in a "card
or other document," as that phrase is used in subsections 30.06(c)(3)(A) and 30.07(c)(3)(A). Id.
Sections 30.06 and 30.07 authorize notice to be given by written communication in two ways,
either by a posted sign, as discussed above, or by "a card or other document on which is written"
the prescribed notice language. TEX. PENAL CODE §§ 30.06(c)(3), .07(c)(3). While you are
concerned with the timing of the notice, the more important inquiry is the message that is conveyed
when these cards or documents are distributed. If using cards or documents to provide notice that
the carrying of handguns is prohibited pursuant to subsection 46.035(c) of the Penal Code, a
governmental entity should make it clear that the prohibition applies only to the meeting room or
rooms and only when the governmental entity is holding an open meeting. Subsections 30.06(c)(3)
and 30.07(c)(3) would allow a governmental entity to pass out cards at the entrance to a meeting
room where an open meeting is held to provide notice that entry with handguns is forbidden, or a
3
Because your fourth question is premised on a conclusion that section 30.06 and 30.07 notices should be
posted at the entrance to a building that includes a room or rooms where a meeting of a governmental entity is held,
we do not address it further. See Request Letter Attachment at 2.
The Honorable Carlos Omar Garcia - Page 4 (KP-0098)
governmental entity could include as part of its open meeting notice that the carrying of handguns
will not be allowed in the open meeting. 4
4
Section 551.041 of the Government Code requires a governmental body to provide "written notice of the
date, hour, place, and subject of each meeting." TEX. Gov'T CODE § 551.041. A city posting such notice must do so
at least 72 hours before the scheduled meeting. Id. § 551.043.
The Honorable Carlos Omar Garcia - Page 5 (KP-0098)
SUMMARY
Subsection 46.035(c) of the Penal Code makes it an offense
to carry a handgun "in the room or rooms where a meeting of a
governmental entity is held and if the meeting is an open meeting
subject to Chapter 551, Government Code" and the entity provided
the requisite notice. By specifically limiting the offense to carrying
a handgun in "the room or rooms," the Legislature made it clear that
it did not intend to prohibit the carrying of handguns throughout an
entire building but instead only in the specific room or rooms where
an open meeting of a governmental entity is held.
Governmental entities should place their notices that entry
with a handgun is prohibited at the entrance to the room or rooms
where an open meeting is held. A governmental entity may not
provide notice that excludes the carrying of handguns when the
room or rooms are used for purposes other than an open meeting.
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 | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4129944/ | QBfficeof tip Bttotnep Qhneral
Sbtate of Qexae
DAN MORALES
.ATTORSLI
CENERA!. July 21. 1993
Mr. Burton F. Raiiord Opinion No. DM-238
Interim Commissioner
Texas Department of Human Services Re: Whether chapter 106 of the Human
P. 0. Box 149030 Resources Code requires a fixihty that
Austin, Texas 78714-9030 submits the name of an employee for a
ctiminal conviction check to terminate the
employee if the check reveals convictions
of certain offbnses (RQ-211)
Chapter 106 of the Human Resources Code requires the Department of Human
Services (the “department”) to obtain miminal comiction checks of applicants for
employment and existing employees for facilities serving the elderly or disabled licensed by
the department and the Department of Health. You have asked whether a ficility that
vohmtarily submits the name of an employee, who is licensed pursuant to other law, to the
department for a criminal conviction check is required to terminate the employee if
convictions for certain offenses are diivered.
Your request requires us to examine the statutory framework for crimi~
conviction checks set forth in chapter 106 of the Human Resources Code.1 Subsection (a)
of section 106.004 of chapter 106 provides that a ficilii may not make an offer of
permanent employment to a person covered by the chapter2 unless the facility provides the
department with information for a criminal conviction check. Hum. Res. Code
§ 106.004(a). Subsection (b) of that section provides that a facility “may make an offer of
permanent employment to a person licensed under other law, including a nursing home
‘we nON that a state districtjudge has ndcd Ihat provisions of chapter 106 of the Human
ResourcesCode violate the Texas Constitutionon the basii that they fail to give ternhated employees
..A,6 3; ihc reasonsfor theirtmnination or an opportunityto be heard. G&tie v. TcxarLkp’r ojffumrm
Srrvs...No. 913668 (Din. Cl. ofTravis County,345tb JudicialDin. ofTexa%Jan. 24.1992). @‘d, No, 3-
92-3393 flex. Am.-Austin, March 17. 1993, n.w.b) (affmning the district anut on prombat
gmmds and c\prcssing no opinion on the constitutionalityof the statutesat issue). To our knowledge,the
le@slaNrchas not amendedthis chaptersince it was declaredunconstitutional,despitethe districtcourt’s
urging. See id. You ask about the applicationof chapter106 to a particularclass of employees;your
requestdoes not requirethis olke to considerits constitutionality. In this opinion, WCmucky answu
your qwstions regardingstaNtoryconslnulion ofcbpler 106. We do not cons&r its Wn5liNtidity.
?kction 106.001 defines ‘kility~ for pmposcs of chapter106. tkction 106.002 delineatesthe
applicabilityof the clmplerto variousfacilityCmpl-.
p. 1229
Mr. Burton F. Raiford - Page 2 0X4-238)
administrator or a nurse, without foUow+ng the procedures under this chapter for a
crimd conviction check.” Id 4 106.004(b). Although subsection (b) exempts facilities
from submitting the names of prospective employees “licensed under other law” to the
department, subsection (d) requires the department to obtain a criminal conviction check
for such persons employed at a thcihty upon the fhcilitys request. See id 5 106.004(d).
In addition, section 106.008(a) provides that a facility may not hire a person or
shall immediately terminate a person’s employment if the results of the check reveal that
the person has been convicted of an offense listed under section 106.003(b). The offenses
listed under section 106.003(b) include a misdemeanor or felony classified as an offense
against the person or family, a misdemeanor or felony classified as public indecency, a
wntrolled substance felony, a felony in violation of section 31.03 of the Penal Code,
robbery or aggravated robbery under chapter 29 of the Penal Code, or burglary under
section 30.02 of the Penal Code. Id 0 106.003(b), see afso Attorney General Opinion
JM-1237 (1990) (addressing the scope of criminal conviction checks under chapter 106 of
the Human Resources Code).S
You inform us that a ficilii voluntarily requested the department to obtain a
crhinal conviction check of an existing employee, a licensed vocational nurse, pursuant to
section 106.004(d). The check revealed a history of convictions of offenses listed under
section 106.003(b). After the facility was notified of the results of the check, it asked the
department if it is requimd to discharge the employee given that it was exempted from
seeking the criminal wnviction check in the first place pursuant to section 106.004(b).
You fin&r inform us that there has been no revocation proceeding against the vocational
nurse by the licensing agency. In light of this situation, you ask whether a facility that
voluntsrily submits the name of an employee- who is “licensed under other law,” as it is
permitted to do pursuant to section 106.004(d), is required to terminate the employee if
the criminal conviction check reveals a wnviction of an offense listed under section
106.003(b).
Chapter 106 appears to require a facility that voluntarily submits the name of an
employee “licensed under other law” for a criminal conviction check pursuant to section
106.004(d) to terminate the employee if the check reveals a conviction of an offense listed
under section 106.003(b). Section 106.008(a) provides in pertinent part:
[A] facility may not hire a person covered by this chapter or shall
immediately terminate a person’s employment if the results of the
criminal conviction check reveal that the person has been convicted
of an offense listed under Section 106.003(b) of this code.
‘SubswtiollS @) and (C)of section 106.008 previdc that a facility may anploy or wntinuc N
employ a personconvicIedof a controlledsubslanceoffense or a pus4n wnvicted underSC&on31.03 of
the Penal code undercatah weditions.
p. 1230
Mr. Burton F. Raiford - Page 3 (DM-238)
Clearly, the prohibition against hiring “a person covered by this chapter” t&s to job
applicants for whom facilities are required to obtain criminal conviction checks pursuant to
section 106.004(a) before offering pwnanent employment. We also believe that this
phrase refers to applicants who may have been offered temporary employment pending the
outwme of a criminal conviction check under section 106.0054 The requirement that a
facility “immediately terminate a person’s employment,” on the other hand, appears to
refer to persons “licensed under other law” employed by facilities for whom facilities may
obtain criminal background checks pursuant to section 106.004(d). We note, however,
that this requirement could also be read to refer solely to persons who may have been
temporarily employed pending the outcome of a criminal conviction check under section
106.005. Because the requirement that a facility “immediately terminate a person’s
employment” is ambiguous, we turn to the legislative history for guidance.
The legislative history supports the conclusion that section 106.008(a) of the
Human Resources Code requires a facility that voluntarily obtains a criminal conviction
check of an employee ‘licensed under other law” to terminate the employee in the event
the check reveals a conviction of a listed offense. The legislation enacting chapter 106 of
the Human Resourws Code also repealed former article 4442c, section 18, V.T.C.S., an
ahnost identical statutory provision. See Acts 1989, 71st Leg., ch. 1181, $5 1, 2 (etT
Sept. 1, 1989); Acts 1989. fist Leg., ch. 1225, @ 1.4 (eff Sept. 1, 1989). Chapter 106
of the Human Resources Code changed the requirements of section 18 of former article
4442c only in very limited respects.
Specifically, chapter 106 added a more detailed definition of the facilities covered
by the chapter, Hum. Res. Code 9 106.001. and clarified that the criminal conviction
check requirements apply to persons applying for employment with a home health agency
only if the person will be employed in a position which involves direct contact with a
wnsumer of home health services, id 4 106.002(b). It also added robbety, aggravated
robbery, and burglary to the list of offenses a conviction for which would require a facility
to refuse to hire or to discharge a person, id 3 106.003(b)(S), (6) and provided that a
facility may employ or continue to employ a person convicted under section 3 1.03 of the
Penal Code under certain conditions, id 8 106.008(c). Finally, it addressed the
applicability of the criminal conviction check provisions to a federally-required nurse aide
registry program. Id. 5 106.012. None of the changes affected the provisions mandating
that facilities obtain criminal conviction checks for certain prospective, unlicensed
;;.&ets, permitting facilities to obtain criminal conviction checks for employees
“licensed under other law,” or mandating that facilities not hire prospective employees or
terminate existing employees if the criminal conviction check reveals a conviction of a
listed offense. Nor does anything in the legislative history indicate that the legislature
intended to alter these substantive provisions of former section 18, article 4442~.
‘Section 106.005 pm&s facilitiesto c&r such a job appticaattempemryemp@m.eatpendinga
criminal wnviclion check.
p. 1231
Mr. BurtonF. Raiford - Page 4 (DH-238)
Section 18(g) of former article 4442~. V.T.C.S., provided as follows:
H)f the results of a miminat conviction check reveal that an
applicant for employment at a nursing home or custodial care home
has been convicted of an offense listed in Subsection (d) of this
section, the institution may not hire the person. . . mf the results of
a criminal conviction check reveal that an employr or u person
hired on u temportny busis under Subsection (c) of this section has
been convicted of an offense listed in Subsection (d) of this section,
the institution shall immediately terminate the person’s employment.
Acts 1987, 70th Leg., ch. 1048. 8 1. at 3516 (emphasis added). Clearly, under section
18(g) of former article 4442c, the department’s discovery of a history of certain criminal
convictions prohibited a facility from hiring a person and required a faciity to terminate
both persons hired on a temporary basis pending a criminal conviction check and
employees “licensed under other law” for whom criminal conviction checks were available
but not required. Because nothing in the text or legislative history of the cutrent provision
indicates that the legislature intended to change this very significant aspect of the law
when it repeated section 18 of former article 4442c, V.T.C.S., and enacted chapter 106 of
the Human Resources Code, we conclude that section 106.008(a) requires a facility that
vohmtarily obtains a criminal conviction check of an employee “licensed under other law”
to terminate the employee in the event the check reveals a conviction of an offense listed
under section 106.003(b).5
SUMMARY
Pursuant to section 106.008(a) of the Human Resources Code, a
facility that voluntarily obtains a uiminal conviction check of an
employee “licensed under other law” is required to terminate the
employee in the event the check reveals a conviction of an offmse
listed under section 106.003(b).
DAN MORALES
Attorney General of Texas
%f course, under section 106.008, a facility may continue IOemploy a person convicted of a
wntrolled substanceoffense or a person wnvictcd under section 31.03 of UK Penal &de under ccdn
wnditionr. See Hum.Res. Code 5 lO&WS(b).(c).
p. 1232
Mr. Burton F. Raiford - Page 5 (DM-238)
WILL PRYOR
Fii Assistant Attorney General
MARYKELLER
Deputy Attorney General for Litigation
RENEA HICKS
State Solicitor
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepared by Mary R. Grouter
Assistant Attorney General
p. 1233 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143982/ | 31
OFFICK OF THE AlTORNKY GENERAL, OF TKXAS’
Honorablr Fred Uorrh
county Auditor
Polk county
Llrlagrton, T-8
oopy OS a O-en
Pipe Line corpo
OI and erected telephona
e publla ronda oi Polk
hose new looatiaue. 3omo of thaar new
rtw yards from thd old looation8, but
* wetaneosoeary.
About Daawabor, 1928, meld OOrQOrotlOn preesnted :’
Polk County with an aooount raprersnthg the OOI!& neO~at3itated
by tha above mentioned work. The oomt&ai arm’ Pourt pasred
an ardor that the i3am be paid but tn6 a*d“i tar ramad to
rip the warrant, and to data fh0 8OTporatlOn &8 not reOeiVed
Y
., -.
s
c 32
Honorable Prod Horrla, Page e
my compensstlon but now demands the eooount be pald.
that
The preaont mmaJealoners 9 oourt at a rsocntnertlng ra-
eolndod the fox-marOrder OS said oourt pasrrd by their preda-
ose6ore orderin that the sooount br paid. Unasr the nbovo
aantlonedfaots ycur orlglna1lngu&y prosantrd the rollcuing
quostlont
mPleaso abvlsa, as to your oplnlon, as to nhethrr
X$~o~~nty maa Bhell Fipe Line Oorporstlon anything
And in answer to the abbvs in our original Oplnlon
ao. o-2408, it was hala in effsot that the oo!mIsslonors~ oourt
0f Folk RN&y had no authority t0 pay the olein.
Under tha,iaats &&ted in the orl~lnnl requeet It
ma arsumd that the above =rontlcnal
oorporatloa #OS ocaetruot-
ina and rumin@ its 21~0 lines under axlstlngpub110 roads.
nowever, under the aatual Santa Sresented to this Depertront
the said oorporatlon hod right-cl-uey deedo for ell the pips
line laid in Polk Oounty and the new blgbwoysorossed the
right-or-way ot the said corporation at several dittsrant
plaoea, due to the oonstruotion of the new hI&hways, the aor-
poratlon was foroad to lower and ease lta lines in oo~nyllanoe
with the Stats rs@.atloas and law, end at no point alone;the
pip line did the now highway usa the old highway right-Of-TfCW.
It la a rundameatal yrlnoiple ot law tbat pxlvnte
propertyohall not be taken ror a publia uee wlt.hout lddquate
oozi~ens~tlon, And that no peraon ehan be deprived Of his ?rO-
party mxoept by duo ooursd OS law. Werefore, vre axe of the
opinion tb?rt where ths state has permitted auoh oorporatlon as
above mentlcaed to ersot and oonotruot its ll~nes under and
l o r o a c pub110 ronas, and where tke oounty requirestbe addl-
ticnalrlp,ht-of-wey ior new highways or pub110 roada cvor and
aoroea the private property of the above mentioned oorporatioa,
the county would ba llnbla to sold obrporntlon for thr srpenso
of aaslm said lines and burylnl: thein et a proper Cegth. Y:o
Wink that our Opinion No. 0-2274;end tha authorities olted
therein is opgllaable t0 the quastion here Under OOnSidaratiOn
and w~oiotm a aopy of the sane ror your oonvenlsnor. our orlg-
1~1 OpinionUo. 044OII 18 harobywithdrawn.
Trustingthat ths foregoingfully answarshour lm&rF,
II)are
APPROVEDOCT 9, 194Q ; Yours very truly
tiLLA& .w
A&&$RNEY GENERAL0% TEXAS . | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/7606067/ | Affirmed. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4153963/ | ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Engility LLC ) ASBCA No. 60817
)
Under Contract Nos. NOO 178-04-D-4 l 43 )
NOO 17 4- IO-C-0042 )
APPEARANCES FOR THE APPELLANT: Mark J. Stechschulte, Esq.
Vice President, Assistant General Counsel,
and Assistant Secretary
Kara M. Sacilotto, Esq.
Gary S. Ward, Esq.
Wiley Rein LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq.
DCMA Chief Trial Attorney
Samuel W. Morris, Esq.
Trial Attorney
Defense Contract Management Agency
Chantilly, VA
ORDER OF DISMISSAL
The dispute has been settled. The appeal is dismissed with prejudice.
Dated: 9 March 2017
,,-.-:---~ A/ ,,
~~~4#?#
MARK N. STEMPL
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
I certify that the foregoing is a true copy of the Order of Dismissal of the Armed
Services Board of Contract Appeals in ASBCA No. 60817, Appeal of Engility LLC,
rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
2 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130056/ | @ffice of tfp Zlttornep 43eneraI
&ate of ZEexas
DAN MORALES June 9.1992
ATTORNEY
GENERAL
Ms. Georgia D. Hint Opinion No. DM-125
Commissioner
Texas Department of Insurance Re: Whether, considering sections 42.001
P. 0. Box 149104 and 42.002 of the Property Code and
Austin, Texas 78714-9104 article 21.22 of the Insurance Code, life
insurance policy proceeds and cash values
are completely exempt from seizure under
process, and related questions (RQ-2Sl)
You have requested our opinion regarding whether and to what extent state
law exempts from seixure under process life insurance policy proceeds and cash
values, and individually purchased annuities. Specifically, you ask the following:
(1) Whether insurance policy proceeds and cash values are
completely exempt from seizure under process or whether those
benefits are exempt from seizure to the extent of the maximum
amounts set out in section 42.001 of the Property Code; and
(2) Whether the Texas Insurance Code article 21.22 exemption
includes individually purchased annuities.
The resolution of the first issue you raise requires this office to construe two
apparently conflicting statutes, both of which the 72d Legislature amended during
its regular session. Senate Bill 654, Acts 1991, 72d Leg., ch. 175, 8 1, amended
section 42.001 of the Property Code to read, in pertinent part, as follows:
(a) Personal property, as described in Section 42.002, is
exempt from garnishment, attachment, execution, or other
seizure iE
(1) the property is provided for a family and has an
aggregate fair market value of not more than $60,000,
p. 648
Ms. Georgia D. Flint - Page 2 (DM-125)
exclusive of the amount of any liens, security interests, or
other charges encumbering the property; or
(2) the property is owned by a single adult, who is not a
member of a family, and has an aggregate fair market value
of not more than $30,000, exclusive of the amount of any
liens. security interests, or other charges encumbering the
Property.
Prop. Code 542.001(a). Section 42.002 describes twelve categories of personal
property that are exempt under section 42.001(a), including “the present value of
any life insurance policy to the extent that a member of the family of the insured or
a dependent of a single insured adult claiming the exemption is a beneficiary of the
policy.” Id S 42.002(a)(12). Thus. under sections 42.001 and 42.002, a person may
exempt from seizure under process personal property from any combination of the
twelve categories, so long as the aggregate fair market value of the exempted
personal property does not exceed either $60,000, if the property is provided for a
family, or $30,000, if the property is owned by a single adult who is not a member of
a family.1 A person whose property is subject to seizure under process could choose
to exempt from seizure the present value of a life insurance policy to the extent that
a family member of the insured or dependent of a single insured adult claiming the
exemption is the beneficiary, but only if the aggregate fair market value of all the
personal property the debtor chooses to exempt does not exceed the amounts set
forth in section 42.OOl(a)(1). (2).
Senate Bill 1261, Acts 1991,726 Leg., ch. 609,s 1, amended article 21.22 of
the Insurance Code in a way that, you contend, conflicts with sections 42.001 and
42.002 of the Property Code. In pertinent part, article 21.22 now reads as follows:
Notwithstanding any provision of this code other than this
article, all money or benefits of any kind, including policy
proceeds and cash values, to be paid or rendered to the insured
or any beneficiary under any policy of insurance issued by a life,
health or accident insurance company, including mutual and
fraternal insurance+ or under any plan or program of annuities
and benefits in use by any employer, shalh
thtion 42001(a)(l), (2) of the Propxty Code qwities that the aggregate fair market value is
to be detrrmincd “exctosivcof the alnouot of any IieIq securiv interest& or other charges encumbering
the property.”
p. 649
Ms. Georgia D. Flint - Page 3 (DM-125)
(1) inure exclusively to the benefit of the person for
whose use and benefit the insurance is designated in the
policy;
(2) be fully exempt from execution, attachment.
garnishment or other process;
(3) be fully exempt from being Axed, taken or
appropriated or applied by any legal or equitable process or
operation of law to pay any debt or liability of the insured or
of any beneficiary, either before or after said money or
benefits is or are paid or rendered; and
(4) be fully exempt from all demands in any bankruptcy
proceeding of the insured or beneficiary.
Ins. Code art. 21.22, 9 1. The Insurance Code thus wholly exempts from seizure
under process life insurance policy proceeds and cash values to be paid to the
insured or any beneficiary.2
Senate Bill 654 amended sections 42.001 and 42.002 primarily to raise the
exemption for personal property from forced sale from $30,000 to $60,000 for a
family, and to $30,000 for a single adult who is not a member of a family. Unlimited
Exemption of Insurance Benefits From Seizure Under Process: Hearings on S.B.
654 Before the Senate Jurisprudence Comm., 72d Leg. 1 (Mar. 26,199l) (statement
of Senator Parker, sponsor of bill) (copy on file with Texas Senate Staff Services).’
%k note that articIe 21.22 of the Insurance Code also whoIIy exempts from seizure under
prowss policy pmcwds and cash values to be paid under any he&b or accident insurance policy, as
well as under any Iifc insurance policy. As sections 42.001 and 42.002 of the Property Code only
exempt from seizure under process the present value of a Iife insurance policy, article 21.22 of the
Iasurance Code does not conflia with sections 42.001 and 42.W2 of the Property Code on the matter of
hedth and accident iasttranec poIicies. Accordi&, we limit our discusion to proceeds and cask or
preswt values paid under a Iife insurance policy.
%wator Parker pointed out that the S30.000 exemption for pwsonaI property, set in 1973,
quaIIed $78,000 in 1991. Hearings on S.B. 654 Before the Senate Jurisprudence Comm, X&l Leg. 1
(Mar. X,1991) (statement of Senator Parker, sponsor of bii) (copy on fde with Texas Senate Staff
Services); see ubo id (testimony of Neal Miier, witness). This, in Senator Parker’s original biII, he
proposed to exempt personal property with an aggregate fair market value in the amount of S76W for
persoml property provided for a family and S38,OOO for psrso~I property ovmed by a single adult who
is not a member of a family. By the time the Senate had engrossed the bii howw, the exemption
had been cut to S60,OtXlfor personal property provided for a family and m,ooO for personaI property
p. 650
Ms. Georgia D. Flint - Page 4 (DM-125)
The bill changed the language in a number of other parts of sections 42.001 and
42.Ckl2in ways that the legislature hoped would clarity the law, but most of the
changes were nonsubstantive. See id at 2 (testimony of Joseph M&tight, witness);
id at 5 (testimony of Mike Maroney, witness). For example, prior to the 1991
amendments, sections 42.001 and 42.002 provided a limited exemption from seixure
under process for the “cash surrender value” of a life insurance policy. Senate Bill
654 changed the terminology from “cash surrender value” to “present value.” We do
not understand this change to be substantive. Accordingly, the “present value” of a
life insurance policy, discussed in sections 42.001 and 42.002 of the Property Code, is
equivalent to the “cash surrender value” or “cash value” of a life insurance policy, the
term that article 21.22 of the Insurance Code uses.’
We note that sections 42.001 and 42.002 do not provide any exemption for
life insurance policyproceedr, they exempt only the cash value of the life insurance
policy. On the other hand, article 21.22 expressly exempts life insurance policy
proceeds. Thus, the two codes do not conflict on the matter of whether proceeds
are exempt from seizure; article 21.22 unquestionably provides that they are wholly
exempt. We therefore proceed to consider whether the cash value of a life
insurance policy is likewise wholly exempt.
Prior to amendment by Senate Bill 1261. article 21.22 of the Insurance Code
exempted from seixure under process “money or benefits of any kind to be paid or
rendered to the insured or any beneficiary” under any life insurance policy. Acts
1987,7Oth Leg., ch. 5. g 1. at 22. In 1988, the United States Bankruptcy Court for
the Northern District of Texas interpreted the former language from article 21.22,
section 1 to exempt from seizure only proceeds paid to the policy beneficiaries. not
cash surrender values. In re Brothers, 94 B.R. 82, 83 (Bankr. N.D. Tex. 1988).
Consequently, according to the Brothers court, cash surrender values were exempt
(footoote continued)
owaed by a single adult who is not a member of a family. Both houses of the legislature theo passed
senate bill 654 with these amounts left intacL
tie “cash surrender value’ of a life insurance contract has been defmed as the cash value (as
determioed byrules set forth in the governing statute and the nonforfeiture section of the insurance.
policy) of a policy that a person ha%ingthe contractual right to do so has surrendered to the insurer. J.
GRPILER & W. BPADLES,LAW AND TtiIHE LtFE INSURANCE CONnu’3 439 (1974); see 28 TAX.
0 3.8U2(defbhg “cash surrender value” for purposes of regulating variable life insurana contracts);
BIACX’S LAW DICITONARY 197 (5th cd. 1979) (dcfbdng ‘ca%b surrender value’ and ‘cash value
option’). Throughout the remainder of this opinion, we use the term “cash values with the
understdiug that it is quivalcnt to “present value: as s&km 42002 of the Property Code uses
‘present vahe,” and “cash surrender value.’
p. 651
Ms. Georgia D. Flint - Page 5 (DM-125)
under section 42.002(7) of the Property Code (now section 42.002(12)) only to the
extent that they did not cause the value of the debtor’s total claimed exemptions to
exceed the aggregate amounts allowed by section 42.001 of the Property Code.
Subsequent to the Bmthm decision, the legislature amended article 2122,
section 1 expressly to exempt the cash value, as well as the proceeds, of any life
insurance policy. The legislature made clear its intent in enacting the amendments
to article 21.22. The legislature proposed and enacted Senate Bill 1261 to provide
an “unlimimd exemption from seizure of certain life. . . insurance benefits.” Senate
Comm. on Economic Dev.. Bill Analysis. S.B. 1261,72d Leg. (1991). Furthermore,
the legislature was keenly aware of the limitation the Property Code placed on
proceeds and cash values of life insurance, and intended that article 2122 of the
Insurance Code override the Roperty Code’s limitations on exemptions. See
Hearings on S.B. 1261 Before the Senate Economic Dev. Comm.. 72d Leg. 1 (Apr.
25, 1991) (statement of Senator Parker) (stating that proposed amendments to
article 21.22 remove limitation that restricted exemption from seizure for life
insurance benefits) (transcript on file with Texas Senate Staff Services); Hearings on
S.B. 1261 Before the Senate Economic Dev. Comn~, Subcomm. on Ins., 72d Leg. 1
(Apr. 15. 1991) (statement of Senator Harris, sponsor of S.B. 1261) (stating that
proposed amendments to article 21.22 would clarify article so that insurance policy
benefits Gould not be subject to any caps”) (transcript on file with Texas Senate
Staff Services); ia! (statement of Dean Davis, Texas Association of Life Under-
writers) (stating that existing article 21.22 “runs afoul of. . . what is exempt in the
Property Code when it comes to bankruptcy”). The legislature also was aware of
bankruptcy situations, such as the situation in Bmthers, in which creditors would
attempt to cap, pursuant to sections 42.001 and 42.002 of the Property Code, the
amount of life insurance proceeds and cash values exempted from seizure. See id
(statement of Senator Harris); id (testimony of Dean Davis). In accordance with
the legislature’s express intent, we construe the total exemption provided for the
cash value of a life insurance policy in article 21.22, section 1 of the Insurance Code
to prevail over the limited exemption provided in sections 42.001 and 42.002 of the
Property Code.5 Life insurance proceeds and cash values thus are wholly exempt
from seizure under process.
slncidentaUy, we note that to the extent of any irremmilabie conflict behwm sections 42.001
of the Property Code and article 21.22 of the Insurance Code, article 21.22 of the Imwmme
ad 42.002
code more spwitkdy pertalus to cash values. See Gov’t Code i 311.m) (stating that special
provision prevails owr general provision in event of irreconcilable conflict); Attorney General Gpiion
JM-II37 (1990) at 3 (same). Furthermore, the legislature adopted Senate Bii 1261, amending
artide 21.22 of the Instuaacc Code, after Senate Bii 654, amending sections 42001 and 42.W of the
p. 652
Ms. Georgia D. Flint - Page 6 (DM-125)
In your second question, you ask whether article 2122 of the Insurance Code
exempts from seixure under process individually purchased ammities. You note, as
background, that the exemption in article 21.22 “specifically includes benefits under
any plan or program of ammities and benefits in use by any employer but omits a
reference to individually purchased annuities.” See Ins. Code art. 21Z 5 1. We
note that Senate Bill 1261’sproposed amendments to article 21.22 never included a
proposal to exempt from seixure individually purchased annuities. Additionally, we
iInd no legislative history indicating that the legislature ever discussed, in the
context of Senate Bill 1261, providing complete exemption for individually
purchased ammities.~ In our opinion, these facts conclusively indicate that the
legislature intentionally excluded individually purchased annuities from the
exemption provided in article 2122.
SUMMARY
Article 21.22 of the Insurance Code wholly exempts from
service under process life insurance proceeds and cash values.
The complete exemption provided by article 21.22 prevails over
the limited exemption provided to the cash value of a life
insurance policy under sections 42.001 and 42.002 of the
(footnote continued)
Properly Code. See Attorney General Opinion JWlYi7 (1990) at 4 (stating that stahtte latest in
euactmeut prevails).
%terestingly, Scnate Bii 654, wbicb amended sections 42001 and 42.002 of the Property
Code, origbdy provided a total exemption from seizure to the “prcwecds of any life, health, or
awideul iusuraoa. or enmity poky either before or tier beii paid.. . to the benef&ry, a member
of the family or a dependent of an insured person.’ See Hear@ 011S.B. 654 Before the Senate
Jnris+ce Comm, 72d Leg. 3 (Mar. 26,199l) (testimony of Laura Smreker, Texas Bankers Ass’n)
(trausai~ oa 6Ie with Texas Senate Staff Services). She tesIi6ed that the proposed unlimited
exemption of proceeds from annuity pokies would provide ‘some opportunities for debtors to take
othenvk non-exempt property.. . aad convert those into exempt property that is, is exempt without
IilllhiOU.... fIps abeady extremely dIf6eult to collect uasaaed debt iu this state and we’re very
eollcorucd IhaI provi~ Illese temptatloa6 to debtors to wllvert property ia this maMer is going to
leave the red that there’s (going to] be virtually no assets available to pay tuasewd debt if the
d&a... defauIts ou his baus and is unable to pay.’ Id at 34. Ms. Smreku’s testimony generated a
number of questions from the Committee Chair, Senator Green. See id. at 4-5.
p. 653
Ms. Georgia D. Flint - Page 7 (DM-125)
Property Code. Article 21.22 of the Insurance Code does not
exempt from seizure under process individually purchased
annuities.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLER
Deputy Assistant Attorney General
RmEAHIcKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Gpinion Committee
Repared by Kymberly Oltrogge
Assistant Attorney General
p. 654 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130060/ | QBffice of ttp Bttornep &neral
Mate of Qfexas
DAN MORALES May 13,1992
ATTORNEY
GESERAL
Mr. Ray Farabee Opinion No. DM-121
Vice Chancellor
The University of Texas Re: Whether proposed drug testing policies
Office of General Counsel submitted by the City of League City and the
201 West 7th Street University of Texas are constitutional
Austin, Texas 78701 (RQ-115, RQ-260)
Honorable James F. Hury, Jr.
ChtiaIl
Ways and Means Committee
Texas House of Representatives
P. 0. Box 2910
Austin, Texas 787652910
Dear Gentlemen:
You have each submitted proposed drug testing policies. The policies
submitted by Mr. Farabee, on behalf of the Board of Regents of the University of
Texas System, would be applicable to certain applicants and employees of the
University of Texas Health Center at Tyler and to faculty and resident physicians at
the University of Texas Medical Branch at Galveston; the one submitted by
Representative Hury would be applicable to employees of the City of League City.
You ask about the constitutionality of the respective policies.
We note at the outset that attorney general opinions are addressed to specific
legal questions. It is outside the scope of. the opinion process to review the lengthy
and detailed policies you have submitted. Also, with the exception of a portion of
the League City policy, discussed below, that we believe to be constitutionally
invalid as a matter of law, determinations in regard to the legality of the particular
drug testing policies or their application will involve questions of fact. See Hum011
v. Thornburgh, 878 F.2d 484, 490 n.9 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 865
(1990) (noting that the “Supreme Court has quite clearly eschewed an approach to
drug testing based on bright lines and clean analytic principles, and has instead
mandated case-by-case balancing of individual and societal interests”). We cannot
p. 621
Mr. Ray Farabee - Page 2 (DM-121)
Honorable James F. Hury, Jr.
resolve questions of fact in the opinion process. We will, therefore, generally limit
this opinion to providing guidance by reference to applicable law. We will also
address the questions you both raise about the validity of a prior opinion of this
office on the legality of drug testing, Attorney General Opinion JM-1274 (1990).
The policies submitted provide for testing by urinalysis. Urinalysis
compelled by the government is a search for purposes of the Fourth Amendment of
the United States Constitution. National Treawy Employees Union v. Von Raab.
489 U.S. 656, 665 (1989); Skinner v. RailwayLabor EKcurives Ash. 489 U.S. 602,
617 (1989). A warrant or probable cause, however. is not necessarily required for
employee drug testing. Skinner, 489 U.S. at 619. Rather, “where a Fourth
Amendment intrusion serves special governmental needs, beyond the normal need
for law enforcement, it is necessary to balance the individual’s privacy expectations
against the Government’s interests to determine whether it is impractical to require
a warrant or some level of individualized suspicion in the particular context.” Von
Raab, 489 U.S. at 665-66.
Before a governmental body adopts an employee drug testing policy, it must
fist consider whether testing “serves special governmental needs, beyond the
normal need for law enforcement.” Id. at 665.1 Assuming that it does, the
governmental body must then determine whether its interests in testing its
employees are sufficient to outweigh the privacy expectations of its employees. In
making this determination, it must consider the nature ~of the employees’ duties,
taking into account that public employment alone is not a sufficient basis for
mandatory drug testing. Hannon, 878 F.2d at 490. It must also consider the extent
to which the testing will intrude upon the privacy interests of its employees. Von
Raub, 489 U.S. at 66566.2 The governing board of a governmental body must make
t&e oko Bhwtein v. Shinw, 908 F.2d 4551,455(9th Cir. 1990), EULdenied, 111 S. Ca. 954
(1991) (m wbcthcr drug testing policy scrvcd special needs before balancing govclnment’s
iatercatsagaid the employees’privacyinter&s); AmericanFedk of Gov’l Emplops Y. Sk&w, 885
FZ!d884, 889 (DC. Cir. l989). wt. denied, 110 S. Ct. MO (1990) (same); Nufionul F&n of Fed
Emp/m Y.Qlmry, 884 F2d 6@3,608(D.C. Cir.19S9),cni. denied, 110 S. Ct. 864 (1990) (same).
%o makiag this determination,a gownmental entity might want to consider, for example, the
exteot to which it will or will not be able to titbhold test results and related informationborn general
public disc&we. See Open Records Decision No. 594 (1991) (city employee drug testing ordinance
provisioos cannot operate to exempt drug testing information from required public disclosure under
the Texas Open RecordsAd, V.T.C.S. article6252-17a).
p. 622
Mr. Ray Farabee - Page 3 (DM-121)
Honorable James F. Hury, Jr.
those determinations in the first instance, subject to court review in the event its
policy is challenged.
As the United States Court of Appeals for the District of Columbia has
noted, however, public employment alone is “not a sufficient predicate for
mandatory urinalysis.” Harmon, 878 F.2d at 490; see aLso National Fed’n of Fed
Employees v. Chewy, 884 F.2d 603.613 (D.C. Cir. 1989). cert. denied, 110 S. Ct. 864
(1990). A “clear, direct nexus [must exist] between the nature of the employee’s
duty and the nature of the feared violation.” Harmon, 878 F.2d at 490 (citing Von
J&rob). In Von Raab, for example, a case in which the Supreme Court upheld drug
testing of customs service employees seeking promotions to positions directly
involving the interdiction of illegal drugs or requiring the incumbent to carry a
firearm, there was a clear nexus between the employees’ prospective duties and the
risk that “they might endanger the integrity of our Nation’s borders or the life of the
citizenry.” Von Ruub, 489 U.S. at 679.3
We turn now to the particular policies at issue here. Representative Hury
submits the proposed drug testing policy of the City of League~City (hereinafter the
“city policy”) and states that the city “is concerned about the effects of Attorney
General Opinion JM-1274 on the implementation of such a policy.” Attorney
General Opinion JM-1274. which we will discuss more fully below, concluded that a
sheriff department’s “random drug testing” of deputy sheriffs and jailers by urinalysis
would violate constitutional privacy protections where no compelling governmental
objectives, or “specific demonstrable goals,”were shown that could not “be achieved
by less intrusive, more reasonable means.” Attorney General Opinion JM-1274 at 4.
We understand Representative Hury’s request, therefore, to put at issue the
“random” testing provisions of the city policy.
3See a&o Nodonal Tw.wy Employes Union Y. Yauter, 918 F.2d 96& 977 (D.C. Cir. 1990)
(government’s interest in ensuring safety just&d random urinalysis drag testing of agency motor
vehicle operators); B&stein, Ws F.2d at 456 (upholdii random drug testing of airline employees
because governmenthad a sufficient intereatin preventingdrug use by persons holding safety-sensitive
positions in the aviationindustry);Tuylor Y. O’Gmdy, 888 F2d 1189.1198 (7th CL. 1989) (wrre~ions
department’sinter&s in avoiding dangers of drug impaired work force and drag smuggling jutified
wmpehg annual urinalysisof employeea who came into rqular contact witk prisoners); Kap v.
ClclibomeCountyHosp., 763 F. Supp. l362,l369 (S.D. Miss. 1991) (hospital’sinterestin ensuring safety
of patients justitied mandatory drug testing of employee involved in hands-on patient care). See
geneml& Haas, The Supreme Cow? Enters the Var Wars”: Dmg Ted& Public Employees, and the
Fourth Amendment, 94 DICK.L. REV.305 (1990).
p. 623
Mr. Ray Farabee - Page 4 (DM-121)
Honorable James F. Hury. Jr.
Article IV, section 4.01 of the city policy provides that “[t]he City’s Director
of Administrative Services may require that a test for the presence of drugs be
conducted.. . on a random.. . basis.” Article X, section 10.01 makes a similar
provision with respect to city employees generally, and article X, section 10.02
provides that “[elmployees in safety sensitive jobs may be subject to random. . . drug
testing on a routine basis, as determined by the Director of Administrative Services.”
We think a court would find that the city policy’s provisions for random
testing of all city employees, as a matter of law. run afoul of Fourth Amendment
protections against unreasonable searches. As discussed above, the federal courts
have indicated that public employment alone is not a sufficient predicate for testing
not based on individualized suspicion, but that a suffkient nexus must exist between
the particular employee’s duties and the feared consequences of the employee’s use
of drugs. See Von Raab, 489 U.S. 656; Harmon, 878 F.2d 484, Notional Federation of
Federal Employees, 884 F.2d 603. Determination, on the other hand, of the
constitutionality of the city policy’s provisions for random testing of employees in
“safety sensitive” positions would, we thii require a full fact-finding with regard to
factors relevant to a constitutional balancing test, such as the nature of those “safety
sensitive” positions and the city’s interest in testing those employed in such positions,
and those employees’“privacy expectations.”
The proposed drug testing policy of the University of Texas Health Science
Center at Tyler (hereinafter the “center policy”) provides for the testing of those
applying for or employed in certain “safety sensitive” and “health care positions” -- to
wit, those whose duties involve 1) “the diagnosis, treatment, or care of patients”;
2) “the operation of equipment or the performance of a test or analysis that is
utilized in the diagnosis and treatment of patients”; 3) “access to controlled
substances”; 4) “access to cash”, or 5) “the lawful use or possession of a firearm.”
Under the center policy, testing may be required of employees in the above
categories after they have been involved in certain on-the-job accidents, observed
possessing or using alcohol or illegal drugs on the job, or observed by a supervisor
trained in such matters as exhibiting on the job the appearance or behavior of one
under the influence of illegal drugs or alcohol. Also, the above categories of
employees, except those having “access to cash,” may be tested on a random basis to
be “determined by the University.” All applicants tentatively accepted for
employment in the above categories are to be tested as a condition of employment.
Center policy 89 I - III.
p. 624
Mr. Ray Farabee - Page 5 (DM-121)
Honorable James F. Hury, Jr.
The University of Texas System also asks about the legality of pre-
employment drug testing for faculty and resident physicians whom the University of
Texas Medical Branch at Galveston (hereinafter “UTMBG”) requires to perform
medical work at the Shriners Burns Institute of Galveston (hereinafter “SBI”). SBI,
a private entity providing care to severely burned children, has adopted a policy
providing for drug testing new employees including the UTMBG faculty and
resident physicians working at SBI. Under these circumstances, it is clear that
UTMBG’s requiring faculty and resident physicians to work at SBI would constitute
government-compelled testing and would therefore be subject to constitutional
protections. Thus, in answer to your question regarding the SBI policy, it would not
be legally permissible for UTMBG to require assignments and rotations in SBI
unless SBI’s policy passes constitutional muster.
We note first that on the facts presented in Von Raab, the court upheld
testing of certain customs service employees applying for .transfer to positions whose
duties involved the carrying of firearms or access to controlled substances. National
Federation of Federal Emplqees upheld random testing of Army civilian police and
guards carrying firearms. Both these courts reached their decisions, however, only
after considering a variety of other fact-bound matters such as the employees’
expectations of privacy or whether the employees’ duties were carried out in
traditional office environments where they could be monitored in a more routine
manner.
More pertinent to the testing of medical personnel, Kemp v. Cluibome
County Hosp., 763 F. Supp. 1362 (S.D. Miss. 1991), upheld mandatory testing of a
scrub technician whose duties involved “hands-on” patient care, including being
present and assisting during surgery. The court ventured to say that “any hospital
employee who is involved in direct, hands-on patient care occupies a safety sensitive
position” such that the government has a strong interest in guarding against such
employees being drug-impaired. 763 F. Supp. at 1368. The Kemp court again,
however, considered various other factual circumstances before concluding that the
testing in that case was constitutionally permissible, for example, that the employee
in question had a diminished expectation of privacy because she had undergone
routine physicals involving blood-testing and urinalysis as a condition of
employment and because she had received prior notice of the drug testing at issue
and signed a consent form. Accordingly, although certain of the categories of
employees made subject to testing under the University of Texas System policies
have been held to be constitutional by courts in other contexts, we think that
determination of the appropriateness of the categories established by these policies
p. 625
Mr. Ray Farabee - Page 6 (DM-121)
Honorable James F. Hury, Jr.
would require fact-findings specific to conditions at the University of Texas Health
Center at Tyler, UTMBG, and SBI.
Similarly, although it seems likely that applicant testing, as opposed to
employee testing, would be given somewhat greater rein by the courts, we are
unable to conclude here that the applicant testing provisions of the center policy, or
the pre-employment testing policies of SBI to which UTMBG faculty and residents
are subject, would withstand constitutional scrutiny as a matter of law. We believe
that a court would consider a range of essentially fact-bound matters, similar to
those factors discussed above with respect to employee testing, before reaching a
conclusion See Von Raab (testing of customs service employees applying for
transfer to certain job categories); Haas, The Supreme COUJTEnters the “lar Wad
Drug Testing,Public Employee-s,and the Fourth Amendment, 94 DICK. L REV. 305,
341-42 (1990).
Finally, we turn to the question of the viability of Attorney General Opinion
JM-1274. In Attorney General Opinion JM-1274, this office concluded that a
sheriffs department’s “random drug testing” of deputy sheriffs and jailers by
urinalysis would violate privacy protections under the Texas Constitution. The
opinion based its conclusion on Texas State Employees Union v. Texas Depk of
Mental Heahh & Mental Retaraktion, 746 S.W.2d 203 (Tex. 1987) (hereinafter
TSEU”). a case in which the Texas Supreme Court held that a state agency’s policy
of subjecting its employees to polygraph examinations violated privacy protections
under the state constitution. Under TSEU, to pass constitutional muster a
governmental body must demonstrate that 1) the intrusion is warranted to achieve a
compelling governmental objective; and 2) that objective cannot be achieved by less
intrusive, more reasonable means. Attorney General Opinion JM-1274 concluded
that a drug testing policy will not pass constitutional muster where the government
has shown no governmental objective to justify the intrusion into the privacy of its
employees.
We believe that Attorney General Opinion JM-1274 correctly concluded that
the Texas Supreme Court would hold that the collection and testing of urine
implicates privacy interests protected by the Texas Constitution. Although no Texas
%e Universityof Texas System has expressed concern as to the meaning of ‘random drug
testing” as d&cued in Attorney General Opinion m-l274 at 1. To dar@, a pre-employment or
employee policy that subjects all appicants for or employees in specik positions to drug testing
prowdurcs withoutexception would not be considered a “random’policy,
p. 626
Mr. Ray Farabee - Page 7 (DM-121)
Honorable James F. Hury, Jr.
court has addressed the constitutionality of a drug testing policy in a reported
opinion, we believe there is a strong likelihood that Texas courts will construe the
state constitution to place broader limitations on drug testing of public employees
than does the federal constitution. See ffeitman v. Texas, 815 S.W.2d 681 (Tex.
Crim. App. 1991) (suggesting that the protections of article I, section 9 of the Texas
Constitution may exceed those in the Fourth Amendment of the United States
Constitution); State of Tetas v. Morales, No. 3-91-195CV (Tex. App.--Austin, March
11, 1992, n.w.h.) (applying state constitutional privacy test from TSEU in striking
down state statute criminalixing certain consensual adult sexual behavior).
Both requesters here have stated what they believe to be the governmental
objectives justifying the drug testing policies at issue.5 We do not opine as to
whether such objectives might be achieved by less intrusive means, as such a
determination necessarily involves resolution of facts. The governing boards that
intend to implement these policies, or the board of any governmental body
implementing a drug testing policy, should examine their respective policies in view
of both the federal and state constitutional standards discussed in this opinion. This
office recommends that any governmental body that implements a drug testing
policy make findings to support the conclusion that its governmental objectives
cannot be achieved by less intrusive means, bearing in mind that decisions regarding
the constitutionality of all drug testing policies may be challenged in court.
%he League City policy statea that it is ‘designed to eliminate the use of drugs and alcohol
and their effe& ia the workplace, so as to better provide for tbc general health and safety of its
employees.’ City Policy 9 1.01. The Universityof Texas Health Center at Texas states that its interest
in tesbg certain categories of employees arisea from the ‘extraordinary safety hazard”posed by a
;dr~@xl employee,” the danger of ‘impairmeat’of the ‘hospital’s integrity and the risk of
.
p. 627
Mr. Ray Farabee - Page 8 (DM-121)
Honorable James F. Hury, Jr.
SUMMARY
The determination whether a particular dmg testing policy
is constitutional involves questions of fact and is therefore
beyond the scope of an attorney general opinion. The governing
board of a governmental body must make those determinations
in the first instance, subject to court review in the event the
policy is challenged.
w@mdom k,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Madeleine B. Johnson
Assistant Attorney General
p. 628 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4153934/ | U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201500296
_________________________
UNITED STATES OF AMERICA
Appellee
v.
JASON J. WILLIAMS
Sergeant (E-5), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Colonel James K. Carberry, USMC.
Convening Authority: Commanding General, 1st Marine Aircraft
Wing, Okinawa, Japan.
Staff Judge Advocate’s Recommendation: Lieutenant Colonel
Christopher W. Pehrson, USMC.
For Appellant: David P. Sheldon, Esq.; Lieutenant R. Andrew
Austria, JAGC, USN.
For Appellee: Major Cory A. Carver, USMC; Lieutenant Jetti L.
Gibson, JAGC, USN; Lieutenant Taurean K. Brown, JAGC, USN.
_________________________
Decided 17 March 2017
_________________________
Before GLASER-ALLEN, C AMPBELL , and H UTCHISON , Appellate Military
Judges
_________________________
This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
_________________________
CAMPBELL, Senior Judge:
At a contested general court-martial, officer and enlisted members
convicted the appellant of conspiring to commit sexual assault, violating a
lawful general order, wrongfully photographing the private area of another
United States v. Williams, No. 201500296
person, adultery, and fraternization—violations of Articles 81, 92, 120c, and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 920c,
and 934 (2012).1 The convening authority approved the appellant’s adjudged
sentence of three years’ confinement, reduction to pay grade E-1, and a bad-
conduct discharge.
The appellant raises four original assignments of error (AOEs), which we
renumber as follows: (1) there is legally and factually insufficient evidence
for his conspiracy, indecent recording, and fraternization convictions; (2) his
sentence was inappropriately severe compared to his co-accused’s sentence;
(3) the military judge erred in failing to award confinement credit for
restriction tantamount to confinement,2 and (4) adultery under the UCMJ
unconstitutionally imposes criminal liability and punishment for only
heterosexual service members. In a supplemental AOE, the appellant further
argues the military judge erred in the findings instructions to the court-
martial members regarding reasonable doubt.3 Having considered each AOE,
we set aside the fraternization conviction and affirm the remaining findings
and a reassessed sentence, as reflected in the decretal paragraph. With that
corrective action, no error materially prejudicial to the appellant’s substantial
rights remains. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
During August 2014, the appellant and two friends, Lance Corporal
(LCpl) Gardner and Corporal (Cpl) Handoo, were stationed in Hawaii. As the
three men drove towards Chinatown one Saturday night in Honolulu, the
appellant stopped to offer a ride to two female college freshmen—H.I. and
1 The members acquitted the appellant of a charge and three specifications
alleging he violated Article 120, UCMJ, by having vaginal and anal sex with R.W.
while she was incapable of consenting due to impairment by alcohol, and causing
bodily harm in penetrating her mouth with his penis. The military judge also granted
the appellant’s motion for a finding of not guilty, under RULE FOR COURTS-MARTIAL
917, MANUAL FOR COURTS-MARTIAL UNITED STATES, (2012 ed.), for a specification
alleging the appellant violated Article 81, UCMJ, by conspiring with Lance Corporal
Gardner to sexually assault H.I.
2 The third AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
3 We summarily reject the third, fourth, and supplemental AOEs. United States
v. Clifton, 35 M.J. 79 (C.M.A. 1992). We note the fourth AOE was resolved, contrary
to the appellant’s position, in United States v. Hackler, 75 M.J. 648, 656-57 (N-M. Ct.
Crim. App. 2016), and the supplemental AOE was resolved, contrary to the
appellant’s position, in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) and
United States v. Rendon, 75 M.J. 908, 916-17 (N-M. Ct. Crim. App. 1 Nov. 2016), rev.
denied, __ M.J. __(C.A.A.F. Feb. 14, 2017).
2
United States v. Williams, No. 201500296
R.W.—walking in search of a bus stop, and obviously unfamiliar with the
area.4 The 18-year-olds explained they had been on the island for only a few
days preparing for their school year to begin. Before the men left the students
at an 18-and-over club, H.I. and LCpl Gardner exchanged phone numbers in
case the young women later needed a ride. Unable to purchase alcohol at the
club, H.I. eventually sent a text message to LCpl Gardner about possibly
drinking together, as a group, elsewhere. The appellant and LCpl Gardner
picked up H.I. and R.W. and provided them vodka and whisky, without
mixers or chasers, for the next several hours. During that time, the two men
drove them around town, took them to a strip club, and stopped briefly at
LCpl Gardner’s on-base house, before they all finally retrieved Cpl Handoo
from the bar where he had remained without the appellant and LCpl
Gardner until it closed.
Between leaving the strip club and entering LCpl Gardner’s house for
more alcohol (since all the package stores had closed), LCpl Gardner and H.I.
kissed outside of the vehicle and during the ride to base housing. While at
LCpl Gardner’s home, the appellant kissed R.W. Cpl Handoo testified that
during the 15 to 20 minutes that he rode in the car after the group came back
for him, R.W. and the appellant were next to him in the back seat, “talking[,]
and then she had her arm around him and he had his arm around her. They
were making out in between.”5
During the ride to pick up Cpl Handoo, H.I. “felt very fatigued and like
[she] just wanted to sleep because [her] eyes felt very heavy.”6 Although she
remained in the front passenger seat while LCpl Gardner next drove
everyone to a hotel, H.I. turned and kissed Cpl Handoo, who was sitting in
the back seat. This bothered LCpl Gardner. H.I. testified that LCpl Gardner
“didn’t want [her] to” kiss Cpl Handoo, and that he said she “couldn’t kiss
both of them.”7
As LCpl Gardner was inside the hotel getting a room with two beds, H.I.
complained about “feeling very sick” and “wanting to throw up” before getting
out of the car and vomiting.8 While R.W. assisted H.I., the appellant told Cpl
Handoo to “stay away from [H.I.] because [LCpl Gardner] had put in some
4 Sets of alias initials identify the college students throughout this opinion.
5 Record at 146.
6 Id. at 242.
7 Id. at 243.
8 Id. at 147, 244. H.I. had only consumed alcohol twice in her life, and she drank
hard alcohol for the first time that evening. Id. at 235.
3
United States v. Williams, No. 201500296
work earlier that night” and “should get to be with [her.]”9 When LCpl
Gardner returned for the group, he attempted to guide H.I., and then had to
carry her, “like you hold a baby,” in his arms to the hotel room.10
LCpl Gardner took H.I. to the bed farthest from the entrance, while the
appellant and R.W. got into the bed closest to the entrance, and LCpl Handoo
got onto the couch. After a brief conversation, the hotel room lights were
turned off. With the exception of the bathroom light being on while R.W. and
the appellant were there with the door closed, all of the hotel room lights
remained off throughout the rest of the night.
R.W. testified that her memories of the events after the group left LCpl
Gardner’s house were difficult to order chronologically. She “remember[ed]
being on the [hotel] bed and . . . the sensation of someone having [vaginal] sex
with [her].”11 Shortly after entering the room, and as he played games on his
phone, Cpl Handoo heard the appellant and R.W. having sex in the bed next
to his couch.
When the appellant and R.W. stopped having sex, they got up and went to
the kitchen to drink water. Cpl Handoo took the opportunity to get some
water, as well. Once R.W. returned to bed, the appellant and Cpl Handoo
remained in the kitchen area. The appellant said Cpl Handoo “could have a
go with her if [he] wanted[,] too,” but Cpl Handoo refused the offer to have
sex with R.W by saying he “was not interested.”12 The appellant asked Cpl
Handoo “if it was because [he] didn’t have any condoms or anything[.]”13
Feeling “uncomfortable and mad” about the conversation, Cpl Handoo replied
“no” and explained that he “did not need any [condoms].”14 He then put on his
shoes and left the hotel.
LCpl Gardner testified that shortly after he saw R.W. and the appellant
under the sheets, engaging in what he thought was sexual intercourse, he
saw R.W. vomit in the sink and then go into the bathroom with the appellant.
While she could not recall whether she vomited before or after sex with the
appellant, R.W. remembered vomiting in the bathroom, and that the
appellant joined her there and received oral sex until R.W. tasted semen in
her mouth.
9 Id. at 150.
10 Id. at 148.
11 Id. at 192-93.
12 Id. at 155, 158.
13 Id. at 155.
14 Id.
4
United States v. Williams, No. 201500296
While H.I. remained in the bed with LCpl Gardner, she recalled looking
over for her friend and seeing R.W. and the appellant in the other bed. She
then saw LCpl Gardner and the appellant switch beds as they spoke to each
other—but she could not hear their actual exchange.
At trial, LCpl Gardner explained that he and Cpl Handoo had a brief
“standoff” after Cpl Handoo’s conversation with the appellant, and Cpl
Handoo told him “[t]his isn’t right” before putting on shoes and walking out of
the room.15 He and the appellant then had “a conversation” in which they
“tr[ied] to figure out why [Cpl Handoo] left and where” he went based on
concerns that Cpl Handoo “gets out of control” when drunk.16 As LCpl
Gardner sat next to the appellant on the edge of the bed that R.W. lay on,
fully clothed, R.W. “grabbed [LCpl Gardner], pulled [him] down, and started
kissing on [him].”17 The appellant told LCpl Gardner, “just don’t kiss her in
the mouth.”18 Although a sheet covered the bottom half of LCpl Gardner’s and
R.W.’s bodies after the men switched beds, H.I. twice heard R.W. say “it
hurts,” and she assumed from the noises that LCpl Gardner and R.W. were
having sex.19 LCpl Gardner testified that he and R.W. had sex for five to ten
minutes, until “[s]he started to—in [his] view of her—fall asleep.”20
H.I. also recalled awaking and “pretending to sleep because [she] wasn’t
sure what was going on” or “what [the appellant and LCpl Gardner] were
going to do next.”21 She watched, despite LCpl Gardner’s attempts to shield
her eyes, the appellant “taking pictures of [R.W.] without her skirt and
underwear on.”22 She recalled that “there was a flash and . . . [she] could hear
the clicking of the camera sounds” as R.W. “was just laid out on the bed
unconscious.”23 She was confident that R.W. was unclothed “because [she]
saw later on that” the appellant and LCpl Gardner put R.W.’s “skirt and
underwear” back on R.W.’s body.24
15 Id. at 354.
16 Id.
17 Id. at 355.
18 Id. at 356.
19 Id. at 248.
20 Id. at 359.
21 Id. at 250.
22 Id.
23 Id. at 251.
24 Id.
5
United States v. Williams, No. 201500296
LCpl Gardner described the photograph incident as occurring after he had
sex with R.W., and then returned from washing his hands. First, he briefly
spoke with H.I. until she, too, fell back asleep on the other bed. He then “put
a hat over [H.I.’s] eyes so that she wouldn’t wake up” from “the light on . . .
[the appellant’s] phone.”25 From the light of the appellant taking a picture,
LCpl Gardner saw R.W. “was just laying there” in bed without any covers.26
However, LCpl Gardner denied that R.W. was naked during their sexual
intercourse, denied that R.W. was naked at the time that the appellant took
the photograph, and denied that he had ever told criminal investigators that
R.W. was ever naked in the hotel room. According to LCpl Gardner’s
testimony, after taking the photograph, the appellant “said he didn’t like the
picture . . . [t]hen he deleted it[.]”27
LCpl Gardner also testified that the appellant was his closest friend on
the island of Oahu, and that the two never refer to each other by rank when
not in uniform. Beyond their extensive socializing together, the appellant, for
months, actually lived in LCpl Gardner’s on-base home, after the appellant’s
family had returned to the continental United States.
Following the appellant’s contested trial, LCpl Gardner pleaded guilty to
sexually assaulting H.I. and R.W. He was sentenced to 26 months’
confinement, reduction to pay grade E-1, and a dishonorable discharge.
Pursuant to a pretrial agreement, the convening authority approved only 24
months’ confinement along with the adjudged reduction and discharge.28
II. DISCUSSION
A. Legal and factual sufficiency
The appellant contends the prosecution offered legally and factually
insufficient evidence for three of his convictions. We agree, in part.
We review each case de novo for legal and factual sufficiency. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is whether, considering the evidence admitted at
trial in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.
25 Id. at 361.
26 Id. at 362-63.
27 Id. at 371.
28 Defense Counsels 28 Jul 2015 submission of Legal Errors and Clemency
Request at 4. Both LCpl Gardner and Cpl Handoo testified under grants of
testimonial immunity. Cpl Handoo received leniency in the form of regimental
nonjudicial punishment instead of a trial by court-martial for his offenses.
6
United States v. Williams, No. 201500296
United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). The test for factual sufficiency is
“whether, after weighing the evidence in the record of trial and making
allowances for not having personally observed the witnesses, [this court is]
convinced of the accused’s guilt beyond a reasonable doubt.” Id. at 325. We
may “judge the credibility of witnesses, and determine controverted questions
of fact,” and substitute our judgment for that of the fact finder. Art 66(c),
UCMJ; United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
1. Conspiracy
First, the appellant argues “the Government failed to present evidence
that [he] and LCpl Gardner entered into an agreement to sexually assault
R.W.,” or “sufficient evidence that LCpl Gardner’s penetration of R.[W].’s
vagina was an overt act to effect the conspiracy.”29 The elements of this
offense are: (1) that the appellant entered into an agreement with LCpl
Gardner to sexually assault R.W.; and (2) that while the agreement continued
to exist, and while the appellant remained a party to the agreement, LCpl
Gardner performed the overt act of inserting his penis into R.W.’s vagina
without her permission, for the purpose of sexually assaulting her. MANUAL
FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶ 5(b).
A conspiracy ‘“need not be in any particular form or manifested in any
formal words,’ [and] ‘[i]t is sufficient if the agreement is merely a mutual
understanding among the parties.’” United States v. Harman, 68 M.J. 325,
327 (C.A.A.F. 2010) (quoting United States v. Mack, 65 M.J. 108, 114
(C.A.A.F. 2007) (second alteration in original). ‘“The existence of a conspiracy
may be established by circumstantial evidence, including reasonable
inferences derived from the conduct of the parties themselves.”’ Id. (quoting
Mack, 65 M.J. at 114).
The trial evidence shows the appellant and LCpl Gardner agreed to allow
LCpl Gardner to sexually assault R.W. after she already had sex with the
appellant and vomited in the hotel room. At that point, R.W. was too
intoxicated to consent to further sex, or even realize with whom she was
having sex. The appellant first offered Cpl Handoo an opportunity to “have a
go with her.”30 When Cpl Handoo left because of that offer, and a strong belief
that the unfolding circumstances were not right, the appellant and LCpl
Gardner then spoke about why Cpl Handoo left. Like Cpl Handoo’s earlier
kissing session with H.I. in the car, by then LCpl Gardner’s own efforts to
29 Appellant’s Brief of 15 Jan 2016 at 8-9.
30 Record at 155.
7
United States v. Williams, No. 201500296
escalate physical interaction with H.I. had been thwarted.31 LCpl Gardner’s
physical encounter with R.W. began only after his conversation with the
appellant as LCpl Gardner sat on R.W.’s bed, just beside the appellant. That
the appellant did not stop R.W. and LCpl Gardner from kissing further
demonstrates the formation and continuation of an ongoing conspiracy.32 The
appellant’s only warning for LCpl Gardner—“just don’t kiss her in the
mouth”—directly encouraged LCpl Gardner to sexually assault R.W.33
There is overwhelming evidence that LCpl Gardner had sex with R.W. As
to consent, LCpl Gardner confessed that he had vaginal intercourse with
R.W. just after the appellant had sex with her, and after seeing her vomit
from drinking too much hard alcohol. The collective testimony of LCpl
Gardner, R.W., and H.I. thus proves that R.W. was, through impairment by
alcohol, not capable of consenting to sex with LCpl Gardner.
H.I.’s credible testimony regarding this offense supports both of its
elements. She witnessed R.W. become highly intoxicated. She saw the
appellant and LCpl Gardner switch beds, allowing LCpl Gardner to take the
appellant’s place next to R.W. She listened to the appellant and LCpl
Gardner speaking to each other, before she heard LCpl Gardner having sex
with R.W., followed by R.W. complaining, “it hurts, it hurts.”34
The next day, R.W. exchanged text messages with the appellant. Their
discussion covered both R.W.’s and H.I.’s concerns about what might have
happened in the hotel room:
R.W.: “I’m a little unclear about what happened last night, did
I hookup with anyone?”
Appellant: “You have no worries. Call me if you need clarity.”
You were a good girl[.]
31As the appellant and R.W. had sex relatively soon after the group entered the
hotel room (and before R.W. became obviously ill), in the other bed, H.I. had refused
to have sex with LCpl Gardner. She physically resisted his advances and explained
her strongly held religious beliefs about maintaining her virginity until marriage.
32 Id. at 355-56. See Harman, 68 M.J. at 327 (finding a conspiracy conviction
legally sufficient, in part, because the appellant’s “failure to stop or report the
[prisoner] abuse . . . support[ed] a reasonable inference of conspiracy derived from the
conduct of the parties themselves”) (citation and internal quotation marks omitted)).
33 Id. at 356. See Harman, 68 M.J. at 327 (also finding the conspiracy conviction
legally sufficient, in part, because Harman’s “smiling face, when seen with the
‘thumbs up’ hand signals, show[ed] approval and encouragement to her co-
conspirators” and thus justified an inference that “she [had] join[ed] their [criminal]
purpose”) (citation and internal quotation marks omitted).
34 Id. at 248-49.
8
United States v. Williams, No. 201500296
R.W.: It’s kind of expensive to call since I have a [foreign]
phone plan. [C]an you just tell me through text?”
Appellant: “Nothing happened[.] Why is your friend so upset
[referring to text message discussions between H.I. and LCpl
Gardner]?”
R.W.: “Please be honest, I vaguely remember something
happening[.] She feels guilty because she’s really religious.”
Appellant: “What do you recall[?] What did she do to be guilty?
R.W.: “Having sex with someone. I don’t think she did
anything, but she can’t remember[.]”
Appellant: “She didn’t[.]”
R.W.: “I guess I did though[.] It’s okay, I just want to know
exactly what happened[.] I don’t like not remembering[.]”
Appellant: “It was [sic] a lot of drinking. I hate not
remembering everything also.”
R.W.: “Did I have sex with you or [LCpl Gardner] or both? I
just want to know[.] Can you please tell me[?]”
Appellant: “Going to a party now. We can come get you do [sic]
we can talk[.]”
R.W.: “No I don’t need to see you in person, I just need a
straight up answer, please have enough respect to give me that
at least[.]”
Appellant: “What do you remember?”
R.W.: “I already told you what I remember, all I want to know
is who I did stuff with[.] Please just tell me[.]”35
The appellant did not text R.W. again that day. He sent a single text message
on two subsequent days—respectively, “How you been?” and “You alright?”36
A reasonable factfinder could have found a mutual understanding legally
sufficient to support the conspiracy conviction, from the appellant actively
encouraging LCpl Gardner to have sex with R.W., immediately before LCpl
Gardner inserted his penis into R.W.’s vagina without her permission and
35 Prosecution Exhibit 2 at 1-2.
36 Id. at 2.
9
United States v. Williams, No. 201500296
while she was incapable of consenting, in order to sexually assault her. The
appellant’s refusal to answer R.W.’s questions about who had sex with her
demonstrates consciousness of guilt. Weighing all the evidence, and making
allowances for not having observed the witnesses, we are convinced beyond a
reasonable doubt that the conspiracy conviction is factually sufficient.
2. Indecent recording
Next, the appellant avers there was no “evidence that an indecent picture
was ever taken” since the prosecution “presented no such picture . . . no
witness indicated seeing such a picture,” and “LCpl Gardner testified that
when he saw [the appellant’s] phone flash, R.[W]. was fully dressed.”37 The
elements of this offense are: (1) that the appellant knowingly photographed
R.W.’s private area without her consent, (2) under circumstances in which
R.W. had a reasonable expectation of privacy. MCM, Part IV, ¶ 45c.a(a)(2).
“The term ‘private area’ means the naked or underwear-clad genitalia, anus,
buttocks, or female areola or nipple.” Id. at (c)(2).
Although no indecent photograph of R.W. was in evidence, the members
were allowed to find that the appellant had photographed R.W.’s private area
based on the circumstantial evidence. RULE FOR COURTS-MARTIAL (R.C.M.)
918(c), MCM; United States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004) (“It
is well accepted that circumstantial evidence is sufficient to sustain a finding
of guilt.”); see, e.g. United States v. Reed, 51 M.J. 559, 560-61, 563-64 (N-M.
Ct. Crim. App. 1999) (affirming Reed’s conviction for larceny of a modem
where the box containing the modem was in Reed’s office, the box was found
empty, Reed later “lent” a similar if not identical modem to the office, and
Reed made “false official statements” indicating “consciousness of guilt”),
aff’d, 54 M.J. 37 (C.A.A.F. 2000); United States v. Flesher, 37 C.M.R. 669,
671-75 (A.B.R. 1967) (affirming Flesher’s conviction for sodomy of his step-
daughter based on a photograph of a physically similar but faceless man
engaged in that act with the victim, Flesher owning a camera that had a
timer, the dates of the photographs matching the dates of Flesher’s
enlistment, and similarities between Flesher’s dwelling and the room in the
photograph).
Contrary to the appellant’s assertion, both LCpl Gardner and H.I.
testified to seeing and hearing the appellant photograph R.W. while she was
unaware of being photographed. LCpl Gardner thought R.W. was “sleeping”
at the time.38 H.I. described R.W. as “not conscious.”39 H.I. further testified
37 Appellant’s Brief at 9.
38 Record at 366.
39 Id. at 251.
10
United States v. Williams, No. 201500296
that R.W. could not have been wearing a skirt or underwear in the
photograph, “because [H.I.] saw later on” the appellant and LCpl Gardner
dress R.W. by putting the “skirt and underwear” back on R.W.’s body.40 The
appellant told LCpl Gardner that he deleted a photograph of R.W. from his
phone, both establishing that the appellant indeed took a photograph of R.W.;
and suggesting, by the appellant’s consciousness of his own guilt, that this
photograph was illicit.41. We thus find the evidence both legally and factually
sufficient to sustain this conviction.
3. Fraternization
Finally, the appellant contends that “the Government failed to prove that
[his] particular relationship with a LCpl, who was not in his unit, violated
the custom of the Naval Service and was prejudicial to good order and
discipline.”42 We agree.
Additional Charge III, Specification 2 alleged a violation of Article 134,
UCMJ:
In that [the appellant] did . . . knowingly fraternize with [LCpl]
Zeyquan M. Gardner, an enlisted person, on terms of military
equality, to wit: interacting with [LCpl] Zeyquan M. Gardner in
an unduly familiar manner, in violation of the custom of the
Naval Service of the United States that noncommissioned
officers shall not fraternize with enlisted persons on terms of
military equality, such conduct being prejudicial to good order
and discipline in the armed forces.
Charge Sheet. The elements of this offense are: (1) that the appellant was a
noncommissioned or warrant officer; (2) that the appellant fraternized on
terms of military equality with LCpl Gardner in a certain manner; (3) that
the appellant knew LCpl Gardner to be an enlisted member; (4) that such
fraternization violated the custom of the appellant’s service that
noncommissioned officers shall not fraternize with enlisted members on
terms of military equality; and (5) that, under the circumstances, the conduct
of the appellant was to the prejudice of good order and discipline in the
armed forces or was of a nature to bring discredit upon the armed forces.
MCM, Part IV, ¶ 83b.
40 Id.
41 United States v. Moran, 65 M.J. 178, 188 (C.A.A.F. 2007) (“That an inference of
consciousness of guilt can be drawn from the destruction of evidence is well-
recognized in the law.”) (citations and internal quotation marks omitted).
42 Appellant’s Brief at 9.
11
United States v. Williams, No. 201500296
The explanation section of this paragraph explains:
Regulations, directives, and orders may also govern conduct
between officer and enlisted personnel on both a service-wide
and a local basis. Relationships between enlisted persons of
different ranks, or between officers of different ranks may be
similarly covered. Violations of such regulations, directions, or
orders may be punishable under Article 92[, UCMJ].
MCM, Part IV, ¶ 83c(2).
Instead of alleging a violation of the United States Navy Regulations,
Article 1165, as an Article 92, UCMJ, offense, the prosecution here chose to
charge the appellant with fraternization under Article 134, UCMJ. The
government relies on United States v. Carter, 23 M.J. 683, 685 (N.M.C.M.R.
1986), for its argument that “the United States did not have to satisfy the
first element for fraternization where the offense alleged is one between two
enlisted personnel.”43
Carter was decided shortly after fraternization by an officer with an
enlisted person was first proscribed within Part IV of the MCM, in 1984.
While the enumerated Article 134 offense for officer to enlisted fraternization
was new to the 1984 MCM, its analysis section made clear that the offense
itself—“based on longstanding custom of the services,” including that
“[r]elationships between . . . noncommissioned or petty officers and their
subordinates may, under some circumstances, be prejudicial to good order
and discipline”—was not, and that the new “paragraph [was] not intended to
preclude prosecution for such offenses.” MCM (1984 ed.), App. 21, ¶ 83.
Carter’s narrow holding, that senior enlisted service members could be
convicted of fraternizing on terms of military equality with junior enlisted
service members who were under their direct supervision—under the specific
circumstances alleged and proven in that case—does not apply here. The
Article 134, UCMJ, specification in Carter alleged that, as a Boatswain’s
Mate Senior Chief on board a ship, Carter “knowingly and wrongfully
fraternize[d] with [a] Boatswain’s Mate Seaman” within his division, for
whom Carter “was [the] division officer” by “dating and engaging in sexual
relations, in violation of the custom of the Naval Service of the United States
that division officers shall not fraternize with subordinates in the division on
terms of military equality.” 23 M.J. at 685. The court found this specification
provided sufficient notice to overcome the vagueness challenge, and affirmed
the conviction given the “unrebutted testimony at trial of several senior
enlisted personnel [which] established the existence of a Naval customary
43 Government’s Brief of 27 Apr 2016 at 30, n.9.
12
United States v. Williams, No. 201500296
prohibition against sexual relationships between division officers, without
regard to rank, and their subordinates,” and “a command instruction
forbidding fraternization in any form.” Id.
The specification in this case simply replaced the word “commissioned” or
“warrant” with “noncommissioned,” and left the otherwise officer specific
language unaltered. The resulting allegation—described as the fourth
element in the findings instructions that the military judge provided to the
members—is “that noncommissioned officers shall not fraternize with
enlisted members on terms of military equality,” under Marine Corps
customs.44 As all noncommissioned officers are themselves enlisted members,
this allegation does not provide the appellant with sufficient notice of an
actual UCMJ violation, and thus fails to state an offense. Consequently, we
set aside the fraternization conviction.
B. Sentence severity
The appellant contends his sentence is inappropriately severe considering
LCpl Gardner’s adjudged confinement, and that we should affirm no more
than 24 months’ confinement here.
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). When arguing for relief based on sentence disparity
in the exercise of our unique, highly discretionary authority to determine
sentence appropriateness under Article 66, UCMJ, the appellant
must demonstrate “that any cited cases are ‘closely related’ to his or her case
and that the sentences are ‘highly disparate.’ If the appellant meets that
burden . . . then the Government must show that there is a rational basis for
the disparity.” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999).
“Closely related” cases involve “offenses that are similar in both nature and
seriousness or which arise from a common scheme or design.” United States
v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994); see also Lacy, 50 M.J. at 288.
However, co-conspirators are not entitled to equal sentences. United States v.
Durant, 55 M.J. 258, 260, 263 (C.A.A.F. 2001) (finding no abuse of discretion
in “highly disparate” sentences for co-conspirators); see also United States v.
Wacha, 55 M.J. 266, 268 (C.A.A.F. 2001) (affirming the lower court which
concluded that the fact Wacha’s co-conspirator received less punishment did
not render the Wacha’s sentence a miscarriage of justice). In assessing
whether sentences are highly disparate, we are “not limited to a narrow
comparison of the relative numerical values of the sentences at issue,” but
may also consider “the disparity in relation to the potential maximum
punishment.” Lacy, 50 M.J. at 289.
44 Record at 508.
13
United States v. Williams, No. 201500296
We find that the appellant has not demonstrated that his sentence is
highly disparate with LCpl Gardner’s adjudged sentence. The appellant faced
a maximum punishment of 40 years’ confinement. His three years of
adjudged confinement was only 10 months more than LCpl Gardner’s. This is
well within the range of appropriate outcomes at different courts-martial. See
Lacy, 50 M.J. at 289 (holding that eighteen, fifteen, and eight month
confinement sentences were not highly disparate given “the maximum
confinement of 27 years that the appellant was facing.”).
Even if, as the appellant suggests, the sentences were highly disparate,
we find a rational basis for any sentence disparity. The appellant pleaded not
guilty and elected trial by officer and enlisted members. LCpl Gardner
testified as a government witness against the appellant before pleading
guilty at his own court-martial pursuant to a negotiated pretrial agreement.
Further, the appellant was more culpable based on his superior rank as a
noncommissioned officer, and he largely controlled the circumstances that
unfolded with H.I. and R.W.—by driving while searching for alcohol, allowing
them to consume alcohol, thwarting Cpl Handoo’s chances at a potential
evening with H.I., offering Cpl Handoo an opportunity to have sex with R.W.
after the appellant already had sex with her and she vomited, allowing LCpl
Gardner to have sex with R.W. when Cpl Handoo declined and left the hotel,
and encouraging LCpl Gardner to “just [not] kiss her in the mouth.” The
circumstances related to the respective misconduct and separate trials are
sufficiently different to explain and justify the different sentences.
C. Sentence reassessment
Having determined that sentencing relief is not appropriate for the reason
raised in the appellant’s sentence severity AOE, we now consider sentence
reassessment in light of our setting aside the fraternization conviction.
Courts of Criminal Appeals (CCAs) can often “modify sentences ‘more
expeditiously, more intelligently, and more fairly’ than a new court-
martial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013)
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs
“act with broad discretion when reassessing sentences.” Id. We consider the
following “illustrative, but not dispositive, points of analysis . . . when
determining whether to reassess a sentence or order a rehearing” in this case:
(1) Whether there has been a dramatic change in the penalty
landscape or exposure.
(2) Whether sentencing was by members or a military judge alone.
(3) Whether the nature of the remaining offenses captures the
gravamen of criminal conduct included within the original offenses
and whether significant or aggravating circumstances addressed
14
United States v. Williams, No. 201500296
at the court-martial remain admissible and relevant to the
remaining offenses.
(4) Whether the remaining offenses are of the type with which
appellate judges should have the experience and familiarity to
reliably determine what sentence would have been imposed at
trial.
Winckelmann, 73 M.J. at 15-16. Reassessing a sentence is appropriate only if
we are able to reliably determine that, absent the error, the sentence would
have been at least of a certain magnitude. United States v. Harris, 53 M.J.
86, 88 (C.A.A.F. 2000). A reassessed sentence must not only “be purged of
prejudicial error [but] also must be ‘appropriate’ for the offense involved.”
United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
Under all the circumstances presented, we find that we can reassess the
sentence, and it is appropriate for us to do so. First, the penalty landscape
has not changed dramatically. The maximum punishment for fraternization
is two years’ confinement and a dishonorable discharge. Setting aside the
fraternization conviction only reduces the appellant’s maximum punishment
from 40 to 38 years. Next, while the appellant was sentenced by members,
and we are less likely to be certain of what sentence members, as opposed to
a military judge, would have imposed, we have extensive experience and
familiarity with the remaining offenses, as none presents a novel issue in
aggravation. Finally, the remaining offenses capture the gravamen of the
criminal conduct at issue, and all the evidence remains admissible.
Taking these facts as a whole, we can confidently and reliably determine
that, absent the error, the members would have sentenced the appellant to at
least confinement for 3 years, reduction to pay grade E-1, and a bad-conduct
discharge. We also find that sentence to be an appropriate punishment for
the modified convictions and this offender—thus satisfying the requirement
for a reassessed sentence both purged of error and appropriate. Sales, 22 M.J.
at 308.
III. CONCLUSION
The guilty finding for Specification 2 under Additional Charge III—
fraternization—is set aside and that specification is dismissed. The
remaining findings and sentence, as approved by the convening authority,
are affirmed.
Chief Judge GLASER-ALLEN and Judge HUTCHISON concur.
For the Court
R.H. TROIDL
Clerk of Court
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DAN MORALES January 341992
ATTORNEY
GENERAI.
Honorable Bill Turner Opinion No. DM-79
Braxos County District Attorney
300 East 26th Street, Suite 310 Re: Whether a juvenile board created
Bryan Texas 77803 pursuant to chapter 152 of the Human
Resources Code has the power to hire
and discharge employees of a juvenile
probation department after it has
employed a chief juvenile probation
officer (RQ-136)
Dear Mr. Turner:
You have asked whether the Braxos County Juvenile Board (the “juvenile
board”) has the authority to hire and discharge employees of the Brazes County
Juvenile Probation Department (the “juvenile probation department”) after the
juvenile board has employed a chief juvenile probation officer. As we understand
your request, your concern is whether juvenile probation department personnel
decisions, including hiring and firing of subordinate employees, are solely within the
authority of the chief juvenile probation officer, or whether the juvenile board has
the authority to exercise control over these decisions.
The juvenile board was created under chapter 152 of the Human Resources
Code.’ Section 152.0007 of subchapter A of that chapter, which defines the duties of
the juvenile board, provides:
The juvenile board shalh
(1) establish a juvenile probation department and employ
personnel to conduct probation services, including a chief
probation officer and, if more than one officer is necessary,
‘Chapter 152 of the Human Resources Code was enacted as part of legislation recodi&iq the
juvenile board provisions. See Acts 1989,71st Lq., ch. 352,s 6, at 1430.
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Honorable Bill Turner - Page 2 (DM-79)
assistant offkers, who meet the standards set by the Texas
Juvenile Probation Commission; and
(2) operate or supervise juvenile services in the county and
make recommendations as to the need for and purchase of
services.
Hum. Res. Code 9 152.0007. Section 152.0008 provides:
(a) The chief juvenile probation officer may appoint
necessary personnel with the approval of the board.
(b) Juvenile probation officers serve at the pleasure of the
appointing authority.
Id. 9 152.0008. In addition, section 152.0271, which applies solely to the Brazes
County Juvenile Board, provides in pertinent part that “[t]he chief juvenile
probation officer may set the salaries and allowances of juvenile probation
personnel with the approval of the board.” Id. $ 152.0271(e).
You suggest that these provisions may conflict. Specifically, you contend that
whereas section 152.0007( 1) appears to vest the juvenile board with the authority to
hire juvenile probation department personnel, sections 152.0008 and 152.0271(e)
appear to vest authority over personnel matters with the chief juvenile probation
officer. You state that under this statutory scheme, “it is not clear whether the
board or chief probation officer is required to employ other members of the
department, or if that duty may vary at the juvenile board’s discretion.” We consider
the authority to hire and fire juvenile probation department personnel separately
below.
As noted above, section 152.0007(l) vests the juvenile board with the duty to
establish a juvenile probation department and employ personnel, including assistant
juvenile probation officers and other employees, but section 152.0008(a) vests the
chief juvenile probation officer with the authority to “appoint necessary personnel
with the approval of the board.” We believe that section 152.0008(a) delegates to
the chief juvenile probation officer the authority to interview and select applicants,
and to hire assistant juvenile probation officers and other employees subject to the
juvenile board’s approval. Thus, the juvenile board’s authority with respect to hiring
of personnel is limited to approving or rejecting the chief juvenile probation officer’s
p. 396
Honorable Bill Turner - Page 3 (DM-79)
hiring decisions. We believe that this interpretation of section 152.0008(a) does not
conflict with section 152.0007(l) because the term “to employ” in the latter provision
does not necessarily mean to hire, but may simply mean to provide compensation2
Subchapter A of chapter 152 is even less straightforward with respect to the
authority to terminate assistant juvenile probation officers and other employees.
The critical question in interpreting subchapter A in this respect is the meaning of
“appointing authority” in section 152.0008(b), which provides that “uluvenile
probation officers serve at the pleasure of the appointing authority.” Section
152.0008(a) suggests that the chief juvenile probation officer is the “appointing
authority” for all personnel. The predecessor statute for the Brazes County Juvenile
Board, section 8(a) of former article 5139EEEEE,s however, provided as follows:
The director of juvenile services may appoint necessary
personnel and set their salaries and allowances with the
approval of the board. The director and other juvenile probation
officers serve at the pleasure of the appointing authority.
(Emphasis added.)
We conclude from the language highlighted above that under former section 8(a),
the “appointing authority” was the juvenile board rather than the director of juvenile
services, because the legislature obviously did not intend the director to serve at his
own pleasure.
In the current statute, section 152.0008, the “chief juvenile probation officer”
is analogous to “director of juvenile services.” Thus, section S(a) of the predecessor
statute and section 152.0008(b) would be in conflict if the chief juvenile probation
officer were held to be the “appointing authority” for purposes of the latter
*We further note that the predecessor provisions to sections 152.0007 and 152.COO8, sections 7
and 8 of article 5139EEEEE, V.T.C.S., were enacted as part of the same legislation adopted in 1983.
See Acts 1983, 68th Leg., ch. 1062, at 5621; see also note 3, infra. Therefore, sections 1.52.ooO7(1) and
152.0008(a) mast be read in harmony if at all possible. Ciry of Wesf Lake Hills v. Wrsfwood Legal
Defense Fund, 598 S.W.2d 681,684 (Tex. App.--Waco 1980, no writ).
3Prior to 1989, each juvenile board was governed by a separate statute. In recodifying the
juvenile board provisions, the legislature attempted to cull from the many juvenile board provisions the
characteristics common to all and to recodify them in subchapter A of chapter 152. Acts 1989, 71st
Leg., ch. 352,s 1, at 1323. Thus, in construing subchapter A as it applies to the Brazes County Juvenile
Board, we must look to the former statute which governed that particular juvenile board.
P. 397
Honorable Bill Turner - Page 4 (DM-79)
provision. The implicit definition of “appointing authority” found in former section
S(a) must control in determining the authority of the Braxos County Juvenile Board
because chapter 152 was enacted as part of a nonsubstantive recodification of the
juvenile board provisions, Acts 1989, 71st Leg., ch. 352, 8 6. See Johnson v. City of
Fort Worth, 774 S.W.2d 653, 654-55 (Tex. 1989). Therefore, we conclude that the
juvenile board is the “appointing authority” for purposes of section 152.0008(b), and
thus has the authority to terminate the chief and assistant juvenile probation
officers.
With respect to all other employees, subchapter A is silent regarding the
delegation of the authority to terminate, as was its predecessor. As noted above, we
believe section 152.0008(b) expressly authorizes the juvenile board to terminate
juvenile probation officers. By implication, this procedure does not apply to other
employees. For this reason, and based on the requirements set forth in section
152.0008(a) for appointments, we believe that the legislature intended to delegate
the authority to terminate all other employees to the chief juvenile probation
officer, subject to the approval of the juvenile board. As with appointments, we
believe that the juvenile board’s authority with respect to terminating employees
other than juvenile probation officers is limited to approving or rejecting the chief
juvenile probation officer’s decisions.
In sum, in section 152.0008(a) the legislature has delegated to the chief
juvenile probation officer the authority to appoint personnel, both assistant juvenile
probation officers and other employees, subject to the approval of the juvenile
board. Pursuant to section 152.0008(b), the juvenile board has the authority to
terminate the chief and assistant juvenile probation officers, despite the fact that it
has hired a chief juvenile probation officer. We also conclude that subsection (b),
by implication, authorizes the chief juvenile probation officer to terminate all other
employees, subject to the approval of the juvenile board.
SUMMARY
Pursuant to sections 152.0007 and 152.0008 of the Human
Resources Code, the chief juvenile probation officer of the
Brazes County Juvenile Probation Department has the authority
to appoint juvenile probation department personnel, subject to
the approval of the Brazos County Juvenile Board. The chief
juvenile probation officer and assistant juvenile probation
officers serve at the pleasure of the juvenile board, and the
p. 398
Honorable Bill Turner - Page 5 (DM-79)
juvenile board has the authority to terminate their employment.
The chief juvenile probation offker has the authority to
terminate other juvenile probation department employees,
subject to the approval of the juvenile board.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Mary R. Crouter
Assistant Attorney General
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DAN MORALES January 23.1992
*TTORNEY
GENERAL
Honorable Mark H. Dettman Gpiioa No. DM-77
Midland County Attorney
P. 0. Box 2559 Re: Authority of a sheriff to conduct
Midland, Texas 79702 investigations and make arrests outside
his county, and related question
(RQ-169)
Dear Mr. Dettman:
You have requested our opinion regarding the authority of the Midland
County Sheriff to engage in law enforcement activities outside Midland County.
You indicate that the sheriff believes “he is entitled to conduct hi law enforcement
operations anywhere in the State of Texas as well as in other states, which in this
case have included Arizona, Oklahoma, Indiana, and Illinois.” The activities involve
“reverse-sting” operations “in which law enforcement agents pose as drug dealers
and agree to sell confiscated narcotics to willing buyers.” After funds from sale of
the drugs are seized, “these seized funds are forfeited to the sheriffs department
and other arresting agencies.”
Article 5, section 23. of the Texas Constitution provides that the “duties and
prerequisites, and fees of office [of sheriff], shall be prescribed by the Legislature.”
Pursuant to such authorization, article 2.17 of the Code of Criminal Procedure
declares, “Each sheriff shall be a conservator of the peace in Iris county.” (Emphasis
added.)
In Attorney General Opinion H-1016 (1977), this office was asked whether a
sheriff was authorized to make a warrantless arrest outside his county, where the
offense is committed in his presence or within his view.1 Relying primarily on
hrrcst uodcr warrantextends 30 any part of the State; and any peace officer to whom said
warrantis directed,or into whose hamis the same has km transferred,shall be authorized to -tc
the Sam0in anycouolyin thisstate.’code trim. Proc art. t5.oL5.
p. 383
Honorable Mark H. Dettman - Page 2 (DM-77)
Hemon v. State, 49 S.W.2d 463 (Tex. Grim App. 1932), the opinion concluded that
a sheriff, outside his county, had no more authority than did a private individual to
make warrantless arrests.2 In Henson, the court had declared:
In the absence of a warrant of arrest issued under the provisions
of article 223, supra [now article 15.06 of the Code of Criminal
Procedure], a sheriff as such is not authorized to make an arrest
outside of his county.
49 S.W.2d at 465. Furthermore, the court said that the statutes
evidence the intention of the Legislature to confine the
jurisdiction of the sheriff to his county, except in so far as the
authority to execute warrants of arrest in any county of the state
is conferred by article 223, [Code of Criminal Procedure].
Id.
Subsequent to the issuance of Attorney General Opinion H-1016, the
legislature enacted section (d) of article 14.03 of the Code of Criminal Procedure.
That statute provides:
A peace officer who is outside his jurisdiction may arrest,
without warrant, a person who commits an offense within the
officer’s presence or view, if the offense is a felony or a violation
of Title 9, Chapter 42, Penal Code [disorderly conduct and
related offenses]. A peace officer making an arrest under this
subsection shall, as soon as practicable after making the arrest,
notify a law enforcement agency having jurisdiction where the
arrest was made. The law enforcement agency shall then take
custody of the person committing the offense and take the
person before a magistrate in compliance with Article 14.06 of
this code.
2Article 14.01(a) of the Code of Criminal Procedure states, “A peace of&&r or any other
person, may, witbout a warrant,arrest an offender when the offense is committed io his Presence or
within his view, if the offense is one classifiedas a felony or as an offew against the public peace..”
p. 384
Honorable Mark H. Dettman - Page 3 (DM-77)
The question before us is whether the enactment of section (d) of article 14.03
extended the authority of a sheriff to initiate investigations and make arrests outside
his county.
Article 14.03(d) in fact makes clear that a peace offtcer’s authority is, in
general, .&n&f to his geographical jurisdiction. On its face, article 14.03(d) grants
to a sheriff no authority beyond that already conferred by article 14.01(a). See note
2, SZQM.~ h our opinion, the purpose of article 14.03(d) is to make clear that a
peace officer need not sit idly by while a felony is committed in his plain view. The
statute provides, however, that the appropriate law enforcement agency of the
foreign jurisdiction is to be brought in as soon as is practicable. In our view, the
thrust of article 14.03(d) is to define rather narrowly the limits of a peace officer’s
authority outside his own jurisdiction.
This conclusion is buttressed by a number of other statutes. Section
411.009(b) of the Government Code, for example, provides that the director of the
Department of Public Safety
may require a sheriff or other police officer in a county or
municipality, within the limits ofthe officer’sjr&%&on, to aid or
assist in the performance of a duty imposed by this chapter.
(Emphasis added.)
Section 411.022(a) of the Government Code contrasts the authority of an officer of
the Texas Rangers with that of a sheriff:
An officer of the Texas Rangers is governed by the law
regulating and defining the powers and duties of sheriffs
performing similar duties, except that the officer may make
arrests, execute process in a criminal case in wry county.
(Emphasis added.)
Furthermore, chapter 362 of the Local Government Code provides a
mechanism for a governmental body, including a county, to offer the assistance of its
law enforcement officers to other jurisdictions. Such authorization would not be
3Article 14.01(a)permits a warrantless arrest for any felony or “offense against the public
peace,” while article 14.03(d) authorizes arrest for any felony or violation of the disorderly conduct
statutes.
p. 385
Honorable Mark H. Dettman - Page 4 (DM-77)
necessary if a sheriff’s general authority extended beyond his county. S&on
362.002 provides:
(a) A county, municipality, or joint airport may, by
resolution or order of its governing body, provide for, or
authorize its chief administrative officer, chief of police, or
marshal to provide for. its regularly employed law enforcement
officers to assist another county, municipality, or joint airport.
This assistance may be provided only when tbe mayor or other
officer authorized to declare a state of civil emergency in the
other county, municipality, or joint airport considers additional
law enforcement officers necessary to protect health, life, and
property in the county, municipality, or joint airport because of
disaster. riot, threat of concealed explosives, or unlawful
assembly characterized by force and violence or the threat of
force and violence by three or more persons acting together or
without lawful authority.
(b) A county, municipality, or joint airport may, by
resolution or order of its governing 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 airportscovered by the agreement hove or@ the oddidonal
investigativeauthority throughout the region (LTset forth in the
ugreement. The agreement must provide for the compensation
of peace officers involved in the activities of the task force.
(c) A law enforcement officer employed by a county,
municipality, or joint airport that is covered by the agreement
may make an arrest outside the county, municipality, or joint
airport in which the officer is employed but within the area
covered by the agreement. The law enforcement agencies of the
area where the arrest is made shall be notified of the arrest
without delay, and the notified agency shall make availablt the
notice of the arrest in the same manner as if the arrest were
made by a member of that agency. (Emphasis added.)
p. 386
Honorable Mark H. Dettman - Page 5 (DM-77)
Section 362.003(a) provides that during the time in which a law enforcement officer
regularly employed by one jurisdiction is in the service of another political
subdivision, he has “all the powers of a regular law enforcement officer” of that
political subdivision. In our opinion, the existence of chapter 362, enacted in 1987,
makes clear beyond all doubt that a sheriff does not have any general authority to
conduct investigations outside hi county. His authority to make arrests outside his
county is limited by the conditions imposed in article 14.03(d) of the Code of
Cdminal Procedure.
We note that at least one court, in a decision issued after the enactment of
article 14.03(d). has confirmed this conclusion. In Lundrum v. State. 751 S.W.2d 530
(Tex. App.-Dallas 1988. pet. refd), the court held that a city peace officer’s
jurisdiction to investigate crime extends throughout the county as does his
jurisdiction to arrest. In dicta, the court said that “[a] county sheriff’s jurisdiction is
county-wide.” Id at 531. We believe that the court’s emphasis on “investigate,” as
well as “arrest,” is significant, and confirms our view that the general power of
investigation granted to a sheriff is limited to the jurisdiction for which he was
elected: the county. Since the authority of a sheriff to investigate crime is generally
limited to his county, it is clear that he can exercise no such authority outside the
State of Texas?
You also inquire about the proper disposition of funds seized by the sheriff
while operating in areas outside Midland County. Chapter 59 of the Code of
criminal Procedure, enacted in 1989, describes the procedures for the forfeiture of
contraband. Article 59.06 provides for the disposition of forfeited property. Section
(a) thereof declares that “[a]11forfeited property shall be administered by the
attorney representing the state, acting as the agent of the state.” The forfeited
property must be administered in accordance “with the provisions of any local
agreement entered into between the attorney representing the state and law
enforcement agencies.” Id. We have been informed that an agreement exists
‘Article 14.051 of the Code of Crimhal Procedure autbrkes a peace officer who is
,”ccmmissioocd and authorizedby another state to make arrestsfor felooies”to make an arrestin Texas
wkn the officer‘lsin freshpursuit’of a suspected felon. As of 1991,42 other states and the Diitrict of
Columbia, including all of the. states borderingTexas, have adopted simii statutoryprovisioos, thus
cmphasiziq that a peace officer may make ao arrest outside his home state only under spe&cally
reslrictcdclrcumstanccs. Texas is also a partyto the Uniform Crimiial ExtraditionAct, article 5l.U.
Code of CZmiaal Procedure.
p. 387
Honorable Mark H. Dettman - Page 6 (DM-77)
between the attorney for the stat@ and the Midland County Sheriffs Office.
Sections (b), (c), and (d) of article 59.06 furnish a detailed description of the
procedures that must be followed when an agreement exists.
We have not been furnished with a copy of the existing agreement between
the sheriff and the relevant prosecutor. The provision for a “local agreement”
specified in article 59.06 requires such an agreement between the prosecuting
attorney “in the county in which a forfeiture proceeding is held” and the law
enforcement agency. If no “local agreement” controls, section (a) provides that any
seized property “shall be sold on the 75th day after the date of the final judgment of
forfeiture at public auction under the direction of the county sheriff.” Any proceeds
resulting from such sale must be distributed as follows:
(1) to any interest holder to the extent of the interest
holder’s nonforfeitable interest; and
(2) the balance, if any, after deductions of all storage and
disposal costs, to be deposited not later than the 39th day after
the date of the sale in the state treasury to the credit of the
general revenue fund.
Since there appears to have been no authority for the sheriff to have seized
the funds in question in the first place, we will not speculate on their proper
disposition. We cannot, however, imagine any basis for the position of the
commissioners court that funds seized in out-of-county operations, including those
outside the State of Texas, should be deposited in the general fund of Midland
County. In any event, the proper disposition of funds resulting from a forfeiture
based on the extra-jurisdictional activities of a sheriff requires the resolution of a
nmber of fact questions that cannot be addressed in the opinion process.
SUMMARX
A sheriff has no general authority to investigate criminal
activities outside of the geographical boundaries of the county
for which he is elected. His authority to make warrantless
SAttorney representingthe state”is defmed for purposes of chapter59 as “theprosecutorwith
felonyjurisdictionin the county in which a forfeitureproceedingis held under this chapter.’
P. 388
Honorable Mark H. Dettman - Page 7 (DM-77)
arrests outside his county is circumscribed by the conditions
imposed in article 14.03(d) of the Texas Code of Criminal
Procedure.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLBR
Deputy Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 389 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130113/ | @ffice of tip 2lttornep Qhneral
&ate of lEexa5
DAN MORALES December l&l991
.~TTImx;EI
WSER.4L
Ms. Brenda H. Collier Opinion No. DM-68
Chair
Texas Board of Private Investigators Re: Whether article 4413(29bb),
and Private Security Agencies V.T.C.S., authorizes the Texas Board of
P.O. Box 13509, Capitol Station Private Investigators and Private Security
Austin, Texas 78711 Agencies to bring disciplinary proceed-
ings against a licensee, registrant, or com-
missioned security officer indicted for or
charged with but not .convicted of the
commission of a felony (RQ-96)
Dear Ms. Collier:
The Texas Board of Private Investigators and Private Security Agencies (the
“board”) is authorized by The Private Investigators and Private Security Agencies
Act (the “act”) to regulate certain private investigative activities and various aspects
of the private security industry. See V.T.C.S. art. 4413(29bb).l You ask whether the
board is authorized under section 11B of the act to bring a disciplinary proceeding
against a licensee, registrant, or commissioned security officer who has not been
convicted of committing a felony, but who has been either indicted for commission
of a felony involving a non-violent crime or charged with commission of a felony
involving a violent crime.
We conclude that the board may not, on the basis of an indictment or the
filing of felony charges alone, take such action. The board may only take
9%~ act authorizes the board to issue keases, registrations, and security officer commissions.
See, e.&, V.T.C.S. art. 44l3(29bb), 9% I3 - 15.19 - 20.32 - 33. A “license” authorizes an individual or
entity to perform services as an investigation company or security services contractor. Id 9 2(U), (17).
A “registration” is a permit issued to an individual authorizing the performance of various investigative’
and security services. Id 5 2(21), (22). A “security oft&r commission’ authorizes a security ofticer to
carry a fuearm during the performance of his duties as a security officer. Id 5 2(U). Securityofticers
who arc. registered but not commissioned may not carry firearms during the performance of their
duties.
p. 339
Ms. Brenda H. Collier - Page 2 (DM-68)
disciplinary action pursuant to a hearing in which proof is offered that a particular
individual’s conduct violates standards the board establishes by rule.
Subsection (a) of section 11B of the act authorizes the board to discipline
licensees, registrants, and commissioned security officers. Subsection (a) provides in
part:
(a) The board shall revoke or suspend any registration,
license, or security officer commission, reprimand any registrant,
licensee, or commissioned security officer, or deny an
application for a registration, license, or security officer
commission, or renewal, thereof, or may place on probation a
person whose registration, license, or security officer
commission has been suspended, on prooE
(1) that the applicant, licensee, commissioned security
officer, or registrant has violated any provisions of this Act or of
the rules and regulations promulgated under this Act;
(2) that the applicant, licensee, commissioned security
officer, or registrant has committed any act resulting in
conviction of a felony;
(3) that the applicant, licensee, commissioned security
officer, or registrant has committed an act after the date of
application for a registration, license, or security officer
commission that results in a conviction of a misdemeanor
involving moral turpitude.
V.T.C.S. art. 4413(29bb), 5 llB(a); see, also id. 0 llB(e)~ (in instances board
authorized to suspend a license, it may impose civil penalty in lieu of suspension).
The board is thus required to bring disciplinary proceedings against an applicant,
licensee, registrant, or commissioned security officer who violates any provision of
the act or of the board’s rules.2 V.T.C.S. art. 4413(29bb), 9 llB(a)(l).
*Section 11B was added to the act in 1975. Acts 1975, 64th Leg., ch. 494, 8 1, at l318.
Subsection (a) of that section initially permitted but did not require the board to bring disciplinary
proceedings. See also Attorney General Opinion M-884 (1971) (construing predecessor section,
P. 340
Ms. Brenda H. Collier - Page 3 (DM-68)
If the board initiates a disciplinary proceeding against a person pursuant to
subsection (a) of section llB, that person is entitled to a hearing before the board
governed by the Administrative Procedure and Texas Register Act. Id. $ llB(b),
(c). In accordance with that act, no license may be suspended, revoked, or annulled
unless its holder has been provided notice and a hearing prior to suspension,
revocation, or annulment. V.T.C.S. art. 6252.13a, 5 18(c); see uLso Texu~ Dep’t of
Health v. Gulf Nuclear, Inc., 664 S.W.2d 847 (Tex. Civ. App.--Austin 1984, no writ)
(APTRA mandates provision of hearing before license suspension).
We turn now to the ,rules at issue here. The board has adopted by rule a
“Code of Professional Responsibility and Conduct.” 22 T.A.C. $5 423.1 - 423.3.
Section 423.1 establishes certain standards of conduct for “licensees” that apply to a
registrant or a commissioned security officer as well as to a licensee. See id. 5 423.12
(defining “[llicense” for purposes of rules). Section 423.1 provides in part:
(f) No licensee, owner, officer, partner, shareholder, or
employee shall be involved in the following:
. . . .
(2) indictment on a felony involving a non-violent crime;
(3) filing of criminal charges on a felony involving a violent
crime.
Under Texas administrative law, agency rules are valid only if expressly or
impliedly authorized by statute. State v. Jackson, 376 S.W.2d 341 (Tex. 1964); Bexar
County Bail Bond Bo! v. Deckard, 604 S.W.2d 214 (Tex. Civ. App.--San Antonio
1980, no writ); Attorney General Opinion JM-1017 (1989). Thus, a valid rule must
not impose “additional burdens, conditions, or restrictions beyond or inconsistent
with the statutory provisions.” Hollywood Calling v. Public Utile Comm’n of Texas,
805 S.W.Zd 618, 620 (Tex. App.--Austin 1991, no writ) (additional restriction invalid
since not part of statute’s specific restrictions on user); see &o Bloom v. Texus State
section 18 of act, and holding board had discretionary authority to issue license to convicted felon).
The legislatare made subsection (a) mandatory in 1981. Acts 1981,67th Leg., cb. 773,s 9, at 2900.
p. 341
Ms. Brenda H. Collier - Page 4 (DM-68)
Bd. of Examiners of Psychologists, 492 S.W.2d 460 (Tex. 1973) (board certification
requirement in addition to those in statute void).
No provision of the act expressly grants the board the power to adopt
subsections (f’)(2) and (f)(3) of section 423.1. Nor does any provision provide the
board the implied power to adopt those subsections. Section 11(a) of the act
currently provides that the board shall have the power and duty:
(1) to determine the qualifications of licensees, registrants,
and commissioned security officers as provided in this Act;
(2) to investigate alleged violations of the provisions of this
Act and of any rules and regulations adopted by the board;
(3) to promulgate all rules and regulations necessary in
carrying out the provisions of this Act; and
(4) to establish and enforce standards governing the safety
and conduct of persons licensed, registered, and commissioned
under the provisions of this Act.
The rules at issue here are inconsistent with these provisions. In accordance
with subsections (a)(3) and (a)(4) of section 11, the board may adopt rules
identifying and prohibiting specific conduct. Upon proof of an individual’s violation
of such rules after notice and hearing, the board would be authorized pursuant to
section 11B to discipline that individual by revoking or suspending his license,
registration, or commission. An administrative hearing on a violation of such rules
would necessarily involve proof of commission of the prohibited conduct. In
contrast, subsections (f)(2) and (f)(3) by their express terms authorize the board to
discipline an individual merely on the filing of an indictment or criminal charges,
and thus, without proof of commission of the conduct underlying the indictment or
charges. Since the board may not impose restrictions that are inconsistent with its
statutory powers, subsections (f)(2) and (f)(3) are invalid.
In summary, the board possesses neither the express nor the implied power
to adopt subsections (f)(2) and (f)(3) of section 423.1 of title 22 of the Texas
Administrative Code. Consequently, the board may not pursuant to V.T.C.S. article
4413(29bb), section 11B reprimand a licensee, registrant, or commissioned security
officer, or revoke or suspend a license, registration, or security officer commission of
P. 342
Ms. Brenda H. Collier - Page 5 (DM-68)
a person who has been indicted for or charged with but not convicted of a felony.
Although we conclude the rules at issue here are invalid, the legislature in section
11(a)(4) has expressly given the board the authority to establish and enforce
standards governing the conduct of a licensee, registrant, or commissioned security
officer, and in accordance with that authority the board may adopt rules prohibiting
a licensee, registrant, or commissioned security officer from engaging in specific
conduct, including specific criminal conduct. If the board adopts such a rule, the
board could then discipline any person violating the rule by suspending or revoking
his license, registration, or commission as provided by section 11B of the act.
SUMMARY
Under article 4413(29bb), V.T.C.S., the Texas Board of
Private Investigators and Private Security Agencies possesses
neither the express nor the implied power to adopt title 22,
section 423.1(f)(2) and (f)(3), of the Texas Administrative Code.
Thus, the board may not pursuant to V.T.C.S. article
4413(29bb), section 11B reprimand a licensee, registrant, or
commissioned security officer, or revoke or suspend a license,
registration, or security officer commission of a person who has
been indicted for or charged with but not convicted of a felony.
The board, however, is authorized by section 11(a)(3) and
11(a)(4) of the act to adopt rules prohibiting specific criminal
conduct, and on proof of a person’s violation of such rules after
P- 343
Ms. Brenda H. Collier - Page 6 (~~-68)
notice and hearing, revoke or suspend that person’s license,
registration, or commission as provided by section 11B of the
act.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLJE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Celeste Baker
Assistant Attorney General
p. 344 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144001/ | Honorable S. IM. Brown
Executive Secretary
Teacher Retirement System of Texas
Austin, Texas
Dear Sir: Opinion No. Q-2307
Re: Distribution of benefits
after death of a member.
In your letter of May 20, 1940, you request our opinion in respo,nse
to the following questions: ,
“1. In Opinion No. O-129 dated June 1, 1939, the. following
statement is made:
“‘The benefits allocated to a married member of the Teacher
Retirement System of Texas are not community property. Such
benefits belong to the .2,eparate estate of the member.’
“In view of this opinion, how would the accumulated coI$$ribu-
tions of a deceased member be divided between the surviv: 1 spouse
and surviving children of that marriage in case no benefici..srv had
been named 7
‘2. Would the children of a deceased member by previous 6ar-
riage participate to the same extent as the children of the decedent
and the spouse to whom the decedent was married at time of death?
‘3. If a member of the Teacher Retirement System dies with-
out having designated a beneficiary to receivethe return of his con-
tributions in case of his death before retirement, would the Teacher
Retirement System be acting within the law and with discretion if it
required an administrator to be appointed for the estate and paid the
money to the administrator? If such procedure is followed, would
it relieve the Teacher Retirement System. of any future responsibil-
ity in the case, such as having to determine the way in which the
money should be divided among the heirs 7
Honorable S. M. Brown, Page 2, O-2387
“4. In case it’is the opinion of your department that the money
could be paid to an administrator and thus relieve the Teacher Re-
tirement System of any fur,ther responsibility, would it be advisable
and legally permissible for the Teacher Retirement System to at-
tempt to settle the case without an administrator being appointed if
the estate of the deceased member does not otherwise require an ad-
ministrator and if the accumulated contributions of the deceased mem-
ber in the Teacher Saving Fund of the Teacher Retirement System
constitute such a small sum that the cost of court proceedings would
cover a substantial portion of the accumulated contributions, should
an administrator be required ?
‘5. If the Teacher Retirement System finds it necessary to re-
turn the accumulated contributions of a deceased member to several
heirs such as a surviving spouse and two or three adult children,
would it be legal and wise for the System to attempt to determine the
exact way the sum should be divided and issue a separate warrant to
each heir, or would it be legal and wise for the Teacher Retirement
System to issue a warrant payable to all of the heirs for the full sum
without attempting to be responsible for the division of the money be-
tween the heirs ? *
Assumption is that each of your questions relates to the case of a mem-
ber dying without leaving a will. Your statement made in connection with the first
question with reference to one of the holdings contained in our Opinion No. O-129
is a correct one. We adhere to the view therein expressed that the benefits.upder .
discussion belong to the separate estate of the member.
Article 2571. Revised Civil Statutes, is applicable. It reads in part:
“Where any person having title to any estate of inheritance. real,
personal or mixed, shall die intestate as to such estate, and shall
leave a surviving husband or wife, the estate of such intestate shall
descend and pass as follows:
“1. If the deceased have a child or children, or their descend-
ants;‘the surviving husband or wife shall take one-third of the per-
sonal estate, and the balance of such personal estate shall go to the
child or children of the deceased and their descendants. The surviv-
ing husband or wife shall also be entitled to an estate for life, in one-
third of the land of the intestate, with remainder to the child or child-
ren of the intestate and their descendants. * * *”
Honorable S. M. Brown, Page 3, O-2387
Where the deceased member is survived by spouse and children, and
no beneficiary has been named as provided in the Act, therefore one-third of the
.benefits goes to the surviving husband or wife. The children of the deceased are
entitled to the other two-thirds, share and share alike. This answers your first
question. Your second question is answered in the affirmative, the statute making
no difference between the children of the deceased regarding the marriage to which
they were born.
The personal property of a deceased person ordinarily goes to the admin-
istrator or executor. Our statutes provide a method for the distribution of an es-
tate in the hands of an administrator after the debts have been paid and the estate
is ready to be wound up. You would be entitled to rely upon compliance with such
statutes and to assume that the estate would be properly distributed by the admin-
istrator under supervision of the probate court. The last part of your third question
is therefore given an affirmative answer. Furthermore, since you must deliver the
money to the person or persons entitled to the same, or to a tribunal which it may
be assumed will so deliver the same, you would be fully justified in requiring an ad-
ministration in any instance where you are not entirely satisfied from the proof sub-
mitted that the claimants are entitled to receive the benefits left by the deceased
member. We believe this will sufficiently answer the first part of your third ques-
tion.
We think your fourth question suggests a very proper procedure. Where
affidavits are submitted, which appear reliable and to conclusively show each and
all of the heirs of the deceased, and showing further that there are no debts owing
by the deceased or his estate, and there is otherwise no need for an administration,
it is quite proper for distribution to be made without requiring an administration,
particularily where the amount of the benefits is small. We would suggest, however,
that payment not be hastily made and that you require the presentation of such affi-
davits as you may deem necessary to amply establish heirship and the fact that there
is no pending administration nor any need for the same.
Your fifth question can hardly be answered categorically. In some cases
it may be advisable to issue a single warrant payable to all heirs. However, it can
be seen where this would lead to practical difficulties unless the procedure has been
authorized by all parties at interest. In some instances the warrant might be with-
held from presentation for an extended peri.od. In many cases it will appear advan-
tageous to issue a warrant to each heir for the amount to which he is entitled. Ordin-
arily it would seem to us that this would be the best practice. However, that is a mat-
ter which you will have to determine as the cases arise. Both procedures are legal
and proper. You of course realize the necessity of definitely ascertaining the persons
entitled to the benefits and in making payment in such a way that each person will re-
, ceive his legal share and no more. Where disputes arise between claimants, they
Honorable S. M. Brown, Page 4, O-2387
should be settled, if possible, before you make payment. We are eorry’that we
cannot advise you more deftnitely on your fifth question. As lndivldual cases
present themselves we wtll be glad to be of anslstance when possible.
Yours very truly
ATTORNEY GENERAL OF TEXAS
BY
Glenn R. Lewis
Aaeirtant
APPROVED JUN 13, 1940
L?za&g?-
ATTORNEY GENERAL OF TEXAS
0RL:RS
APPROVED
OPINION
e2iz?z
Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4153990/ | 03/20/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 8, 2016
STATE OF TENNESSEE v. CHRISTOPHER L. SMITH
Appeal from the Circuit Court for Franklin County
No. 2015-CR-170 Justin C. Angel, Judge
No. M2016-00662-CCA-R3-CD
The defendant, Christopher L. Smith, pled guilty to two counts of aggravated burglary
and one count of aggravated assault, all Class C felonies, in exchange for an effective
sentence of six years with the manner of service to be determined by the trial court.
Following a sentencing hearing, the trial court imposed a sentence of confinement, which
the defendant now challenges. After review, we affirm the sentencing decision of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT W. WEDEMEYER, J., joined.
B. Jeffery Harmon, District Public Defender; and R. Chris Albright, Assistant Public
Defender, for the appellant, Christopher L. Smith.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
James M. Taylor, District Attorney General; and David O. McGovern, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The defendant was indicted for multiple charges stemming from a continuous
course of criminal conduct that took place in both Marion and Franklin Counties. The
defendant waived venue, and the charges were addressed together in a single guilty plea
hearing held in Marion County. Under the Marion County indictment, the defendant pled
guilty to aggravated burglary and aggravated assault and by agreement received three-
year sentences for each offense, to run concurrently with one another. Under the Franklin
County indictment, the defendant pled guilty to aggravated burglary and by agreement
received a three-year sentence to run consecutively to the Marion County sentence. The
defendant received a total effective sentence of six years with the manner of service to be
determined by the trial court.
At the guilty plea hearing, the State recited the facts it would have presented had
the case gone to trial:
Your Honor, if we had gone to trial against [the defendant], we
would be calling a number of witnesses, both in Marion County and
Franklin [County]. It’s all one event and if it’s okay with the Court I’ll just
tell the story.
....
Your Honor, we would be calling first of all, Mr. Danny Hibbs, and
Mr. Danny Hibbs’ wife, who would testify that back on February the 24th
of [2015], that they were at home . . ., there was family present. They were
trying to get some sleep and in the late . . . hours into the early morning
hours of that particular night they heard a noise. They heard banging on the
door. [The defendant] came into their home. Mr. Hibbs was armed. It
could have been a – we could have been dealing very easily with [the
defendant’s] funeral on that count. But he was incoherent, he was making
irrational yelling noises. Making demands. He did some damage to the
home. This prompted ultimately law enforcement to become involved and
as he was there, law enforcement arrived including Sergeant Tim Prince,
with the Marion County Sheriff’s Department[,] along with Deputy Chris
Ladd from the Marion County Sheriff’s Department among others who
responded to this. The Defendant, this was . . . at the time when there was
snow on the ground, it was very cold outside. The Defendant was running
around barefooted in his pajamas, making incoherent statements.
Ultimately when the officers arrived there, Sergeant Prince and Officer
Ladd, who are sizable individuals at least not small men began to engage in
. . . trying to arrest the Defendant. He fought them to the point where . . .
Officer Ladd was injured, was out of work for several months, and had to
have surgery on his shoulder. Additionally, . . . Sergeant Tim Prince also
was engaged in trying to arrest him and had to ultimately use a tazer. [The
defendant] grabbed the tazer and after it had penetrated him, pulled it out
and bit[] it, and then ran off through the woods.
-2-
Ultimately the Defendant did obtain a vehicle of another individual
without that individual’s permission. He began driving erratically and
ended up in Franklin County.
Judge, at that time, he once again irrationally making comments and
statements busted into the home of the Johnston[s], homeowners there in
the Sewanee area, the school area. Mr. Johnston actually was armed and in
his room there was yelling going on as the individual came in. Something
about his daughter needing help, but his daughter was not in the area.
There’s blood – there is glass busted out in the living room, there is blood
spattered in the home where he was injured and bleeding probably from the
run through the woods, and also due to the breaking of the glass.
We would possibly be calling personnel from the [Tennessee
Burearu of Investigation] who would testify that the substance in the . . .
home . . . was, in fact, blood. And maybe would testify that that blood
matched the blood of the Defendant.
Mr. Johnston, who kept his head, and nevertheless felt at one point
as he saw the door knob turning coming into his bedroom with his wife
present and with a child in another room nearby discharged the weapon
over the top of the doorway in such a way that very likely would not strike
him, and did not strike him. That seemed to temporarily calm him down,
but he ran back outside, the Defendant did. Other law enforcement officers
came there from Sewanee Police Department, who would also testify some
of them also engaged him in . . . trying to arrest him. And one to the point
that he . . . was so exhausted he literally vomited while in the home of the
Johnston[s].
Ultimately, [the defendant] was apprehended, . . . we would be
calling personnel from Emerald-Hodgson Hospital who would testify that
he was babbling incoherently at the hospital. No statement could be taken
from him at that time. That all of this occurred, the first charges referenced
occurred in Marion County and the other charge occurred in Franklin
County.
The trial court conducted a consolidated sentencing hearing at which Deputy Chris
Ladd, of the Marion County Sheriff’s Department, testified that he first became involved
with the defendant after receiving a series of dispatch calls that ultimately led him to the
scene of a home invasion “where a subject had just kicked the door in at a residence and
-3-
run in their house.” Deputy Ladd and Sergeant Tim Prince encountered an “individual
wearing a pair of pajama pants and a white T-shirt running down the road in the snow,”
not wearing any shoes. Upon seeing the officer, the subject began to run, and Deputy
Ladd gave chase and tackled him in a ditch. The subject went “haywire . . . screaming
kill me.” Deputy Ladd described the subject as “incoherent,” explaining, “[Y]ou could
tell by looking in his eyes that there was something wrong with him.” Deputy Ladd and
Sergeant Prince fought with the defendant on the side of the road for seven to ten
minutes, even shooting him with a Taser stun gun. Deputy Ladd expounded on the use of
the Taser:
Usually it only takes one pop, one cycle. He took five and after the
fifth one, I mean it was he just reached around and grabbed the leads, which
[are] the wires that are attached to the cartridge, which lead to the darts that
are injected. He grabbed the leads while 50,000 [volts] w[ere] going
through it and put ‘em in his mouth and was sitting there trying to break
‘em with his teeth and sparks just ejecting out of his mouth.
Deputy Ladd stated that, ultimately, however, the defendant escaped. The officers
went to Franklin County and caught the defendant after he crashed a truck he had stolen
into a tree and was engaged with other police officers in a fight. It took six or seven
officers to subdue the defendant. As a result of his fight with the defendant, Deputy Ladd
sustained a torn rotator cuff and damaged tendons in his shoulder. He underwent surgery
and was off work for ten months.
Patrick Allan Johnston testified that, during the early morning hours of the day in
question, he, his wife, mother-in-law, and eight-year-old son were asleep in their home.
At the time, Mr. Johnston had recently undergone surgery and was “basically . . .
bedridden.” Mr. Johnston was awakened by the sound of his dog barking and pounding
on the door. Within seconds, he heard glass shatter and knew that someone was
intruding. Mr. Johnston armed himself with his AK-47 weapon and “started screaming I
have a gun, I will shoot you.” The intruder was screaming loudly that he was hurt and
needed help. Mr. Johnston’s wife called 911.
Mr. Johnston stated that he stood behind an interior door in the house that
separated the living room from the bedrooms, yelling at the intruder to not open the door.
He recalled that “there was a hesitancy there and the door knob did start to turn, and at
that point in time I did fire my weapon over the door.” After the warning shot, Mr.
Johnston heard “scampering on the other side.” The damage to his home was “not
extensive,” totaling “maybe a $1,000.00,” but there was blood “all over the place” from
the intruder’s bleeding.
-4-
On cross-examination, Mr. Johnston recalled that the intruder initially said, “I
need help, I need help, I’ve been injured.” However, after Mr. Johnston informed the
intruder that he had called 911 and help was on the way, the intruder “didn’t say anything
specific other than my little girl, my little girl,” which made Mr. Johnston’s wife worry
that a young girl was “out there or something hurt somewhere.”
Andrea K. Johnston, Mr. Johnston’s wife, recalled the event of the intruder’s
breaking into their home similarly to her husband. She elaborated that the intruder said,
“[M]y little girl, I’m hurt and my little girl, I love my little girl.” Asked how that night
had affected her life, Mrs. Johnston said that she was “way more frightened and paranoid
than [she] was before” and that she was more protective of her young son. She recalled
that her son asked her about “the crazy guy that was yelling . . . [and] came through
[their] window” and that he seemed more afraid at bedtime than he was before. Asked
what kind of punishment she thought the defendant should receive, Mrs. Johnston said,
I would like it to be significant. . . . [P]eople want to talk about well,
you know, the drugs. That’s still a choice to take those drugs and it
shouldn’t be a reason for other people to say, well, I can just do that, too,
and not get in trouble. It’s the behavior and the hurting of many people, not
just us, you know, his loved ones they’re affected, too.
The defendant testified on his own behalf at the sentencing hearing. He began by
“apologiz[ing] to everybody that [he] came in contact with that night.” He said that he
was not in his right mind and was not trying to hurt anyone. He stated that he quit school
in the eleventh grade and worked until he started having problems with drugs in late
2013. The defendant recalled that his drug use began when a coworker told him that “he
had something that could help [him] get through the night” when he was working the
second shift. The coworker did not tell him what it was, only saying, “[S]nort it, it’ll help
you.”
The defendant said that he started “running around with the wrong people” after
he began using drugs and that he used drugs almost daily. His family stopped having
anything to do with him because they saw he was not seeking help for his drug problem.
The defendant said that he was almost twenty-four years old at the time of the sentencing
hearing and that he was the father of “[o]ne child and one on the way.” He was engaged
to marry the mother of his expectant child.
With regard to the night of the crimes in this case, the defendant testified that he
was staying at a friend’s house and went with his friend’s cousin to get drugs. After
taking the drugs, he began to feel weird, so he took a bath and planned to go to bed. He
started to feel “real funny” and thought he was having a panic attack. His friend “got a
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pill and put it in [his] mouth.” He recalled that “it exceeded from there, just [his] heart
pounding, felt like [he] was having a heart attack.” He ran outside barefooted and
wearing only pajama pants and a tee shirt in twenty-degree weather to go to his friend’s
grandmother’s house nearby to call an ambulance because he did not have a phone.
While he was running, he “started blacking in and out and when [he] came to [him]self
[he] was running up the road.” He recalled going toward the police but thought that he
was telling them that he needed help and to go to a hospital. He remembered “getting put
on the ground and blacking out,” but when he came to he was running down the road
toward Franklin County. He did not remember getting into a truck, saying, “I remember
coming to myself and I was driving a vehicle,” and the vehicle hit an embankment.
The defendant stated that he did not remember getting out of the truck after
wrecking it but remembered going into someone’s yard and knocking on the door of their
house. He did not know how he got into the house and said that he did not have a child
with him that night. He remembered the police “taking [him] down when [he] was on the
side of the road. [He] had stopped on the side of the road and they took [him] down, but
[he] d[id]n’t remember.”
The defendant said that the night of the offenses, thirteen months ago, was the last
time he had taken any kind of drug. He said that he was presently working a full-time job
at Royal Remanufacturing and had “started working on the line and . . . worked [him]self
up as a line lead.” He had been reporting to a probation officer every week without any
problems, including passing weekly drug tests. At the time of the hearing, he was living
with his fiancée and her two daughters in a house he rented in Marion County. The
defendant agreed that he or his family had already contacted the victims to try to make
restitution for damages they sustained.
Brent Basham with the Tennessee Department of Correction testified that he had
been monitoring the defendant since September 11, 2015. He saw the defendant once a
week and drug-tested him “[e]very single week.” The defendant never hesitated in taking
a test and never tested positive. Mr. Basham was aware that the defendant was employed
and said that the defendant was following all the rules of supervision. Asked whether he
had any concerns that the defendant would not be able to complete a period of probation,
Mr. Basham said, “I don’t see why he wouldn’t be able to.”
Jackson Crouch testified that he had known the defendant for ten years, since the
defendant was fourteen years old. Mr. Crouch had never known the defendant to be
violent or aggressive. Mr. Crouch said that the defendant worked with him at Royal
Remanufacturing prior to 2013 when the defendant left to work for O’Neil Color, which
was “when it started spiraling down hill on him.” Mr. Crouch stated that the underlying
actions taken by the defendant in this case did not “sound like the Chris that [he] knew
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growing up.” Mr. Crouch said that the defendant seemed to have “straightened up,”
noting he had started working again and was “taking care of . . . all that stuff from the
past[.]”
Mr. Crouch testified that the defendant’s attendance at work was “great” and that
the defendant had “moved up quick.” Mr. Crouch felt that the defendant had “pretty
much already beat” his drug problem. He said that the defendant had made amends with
Mr. Crouch’s son, who had previously looked up to the defendant and was hurt when the
defendant stopped spending time with him.
Kathy Smith, the defendant’s mother, testified that the defendant was a well-
behaved child growing up and did not have an aggressive side or violent tendencies. She
saw changes in him in 2013 when he was working at O’Neil Color – he was “very
agitated, not himself at all.” She was surprised to learn of the charges against the
defendant and did not feel that he would have intentionally committed such acts. When
she visited the defendant in the hospital on the night in question, the defendant “wasn’t
himself.” She believed that the defendant had his addiction under control and was more
mature.
Troy Middlebrooks, an active member of Sequatchie Valley Free Holiness
Church, testified that he did not know the details about the defendant’s involvement with
drugs but knew that the defendant was doing something of which his mother did not
approve. The defendant was presently a regular attendee of church with his fiancée and
appeared to be “the sweet . . . old Chris that [he] knew before any of this ever come
about.”
After the conclusion of the sentencing hearing, the trial court denied diversion and
probation and imposed a sentence of confinement.
ANALYSIS
On appeal, the defendant argues that the trial court abused its discretion in denying
an alternative sentence and imposing a sentence of full confinement.
A trial court is to consider the following when determining a defendant’s sentence
and the appropriate combination of sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing
hearing;
(2) The presentence report;
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(3) The principles of sentencing and arguments as to sentencing
alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating
and enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office
of the courts as to sentencing practices for similar offenses in Tennessee;
and
(7) Any statement the defendant wishes to make in the defendant’s
own behalf about sentencing.
Tenn. Code Ann. § 40-35-210(b).
The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any enhancement and mitigating factors, have been properly addressed.”
State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s
sentencing determinations under an abuse of discretion standard, “granting a presumption
of reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707. This standard of review
also applies to “questions related to probation or any other alternative sentence,” State v.
Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012), as well as to the grant or denial of judicial
diversion. State v. King, 432 S.W.3d 316, 324-25 (Tenn. 2014).
Under the revised Tennessee sentencing statutes, a defendant is no longer
presumed to be a favorable candidate for alternative sentencing. State v. Carter, 254
S.W.3d 335, 347 (Tenn. 2008) (citing Tenn. Code Ann. § 40-35-102(6)). Instead, the
“advisory” sentencing guidelines provide that a defendant “who is an especially mitigated
or standard offender convicted of a Class C, D or E felony, should be considered as a
favorable candidate for alternative sentencing options in the absence of evidence to the
contrary.” Tenn. Code Ann. § 40-35-102(6).
A defendant shall be eligible for probation, subject to certain exceptions, if the
sentence imposed on the defendant is ten years or less. Id. § 40-35-303(a). A defendant
is not, however, automatically entitled to probation as a matter of law. The burden is
-8-
upon the defendant to show that he is a suitable candidate for probation. Id. § 40-35-
303(b); State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Boggs,
932 S.W.2d 467, 477 (Tenn. Crim. App. 1996). In order to meet this burden, the
defendant “must demonstrate that probation will ‘subserve the ends of justice and the best
interest of both the public and the defendant.’” State v. Bingham, 910 S.W.2d 448, 456
(Tenn. Crim. App. 1995) (quoting State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim.
App. 1990)).
There is no bright line rule for determining when a defendant should be granted
probation. Bingham, 910 S.W.2d at 456. Every sentencing decision necessarily requires
a case-by-case analysis. Id. Factors to be considered include the circumstances
surrounding the offense, the defendant’s criminal record, the defendant’s social history
and present condition, the need for deterrence, and the best interest of the defendant and
the public. Goode, 956 S.W.2d at 527. Also relevant is whether a sentence of probation
would unduly depreciate the seriousness of the offense. See State v. Davis, 940 S.W.2d
558, 559 (Tenn. 1997); Bingham, 910 S.W.2d at 456.
Moreover, following a determination of guilt by plea or by trial, a trial court may,
in its discretion, defer further proceedings and place a qualified defendant on probation
without entering a judgment of guilt. Id. § 40-35-313(a)(1)(A). A qualified defendant is
one who is found guilty or pleads guilty or nolo contendere to the offense for which
deferral of further proceedings is sought, is not seeking deferral of further proceedings for
a sexual offense, a violation of section 71-6-117 or section 71-6-119, or a Class A or
Class B felony, and who has not been previously convicted of a felony or a Class A
misdemeanor. Id. § 40-35-313(a)(1)(B)(i). If the defendant successfully completes the
period of probation, the trial court is required to dismiss the proceedings against him, and
the defendant may have the records of the proceedings expunged. Id. § 40-35-313(a)(2),
(b).
The decision to grant or deny a qualified defendant judicial diversion lies within
the sound discretion of the trial court. State v. Electroplating, Inc., 990 S.W.2d 211, 229
(Tenn. Crim. App. 1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App.
1997); State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on
other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). As such, it will not be
disturbed on appeal absent an abuse of discretion. Electroplating, 990 S.W.2d at 229;
Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168. To constitute an abuse of
discretion, the record must be devoid of any substantial evidence in support of the trial
court’s decision. Cutshaw, 967 S.W.2d at 344; Bonestel, 871 S.W.2d at 168; State v.
Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992).
-9-
In determining whether to grant diversion, the trial court must consider all of the
following factors: (a) the accused’s amenability to correction, (b) the circumstances of
the offense, (c) the accused’s criminal record, (d) the accused’s social history, (e) the
accused’s physical and mental health, (f) the deterrence value to the accused as well as
others, and (g) whether judicial diversion will serve the interests of the public as well as
the accused. Electroplating, 990 S.W.2d at 229; Bonestel, 871 S.W.2d at 168. A trial
court should not deny judicial diversion without explaining the factors in support of its
denial and how those factors outweigh other factors in favor of diversion. Id. Because
“judicial diversion is a form of probation, see Tenn. Code Ann. § 40-35-313(a)(1)(A)[,] .
. . the trial court’s findings regarding the defendant’s suitability for full probation . . .
apply equally to its decision regarding the defendant’s suitability for judicial diversion.”
State v. Neil Thompson, No. W2008-00311-CCA-R3-CD, 2009 WL 1034519, at *13
(Tenn. Crim. App. Apr. 17, 2009) (citing State v. Vivian Braxton, No. W2004-02506-
CCA-R3-CD, 2005 WL 3059435, at *9 n.4 (Tenn. Crim. App. Nov. 10, 2005), perm.
app. denied (Tenn. Mar. 20, 2006)).
A trial court may deny alternative sentencing and sentence a defendant to
confinement based on any one of the following considerations:
(A) Confinement is necessary to protect society by restraining a
defendant who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness
of the offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or
recently been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1). Furthermore, the defendant’s potential for
rehabilitation or lack thereof should be examined when determining whether an
alternative sentence is appropriate. Id. § 40-35-103(5).
We conclude that the record before us supports the trial court’s imposition of a
sentence of confinement. In determining the defendant’s sentence, the trial court
explicitly considered the evidence presented at the plea and sentencing hearings, the
presentence report, the principles of sentencing, arguments made as to the sentencing
alternatives, the nature and characteristics of the criminal conduct involved, the evidence
and information offered by the parties on the mitigating and enhancement factors, any
statistical information provided by the administrative office of the courts as to sentencing
-10-
practices for similar offenses in Tennessee, the statement made by the defendant at the
sentencing hearing, and defendant’s potential for rehabilitation or treatment.
In considering the possibility of probation, the trial court noted that “[v]arious
witnesses testified that before the drug use [the defendant] was a good person, a fine
young man and then . . . after the drugs he was completely different.” The court
elaborated, “During drug use, [the defendant was] the type of person we don’t want
running around in our society. It’s that simple.” The court noted in the defendant’s favor
that there was no proof the defendant had any issues concerning his mental and physical
health. The court “g[a]ve the defendant credit for not having any criminal history of
convictions” and considered the defendant’s potential for rehabilitation to be in the
defendant’s favor because of his lack of criminal history and he seemed to “have obeyed
himself since all this ha[d] happened.” The court opined that it reasonably appeared that
the defendant would abide by the terms of probation. However, the court noted the
seriousness of the circumstances of the offenses, which it determined “trump and
outweigh virtually every other factor you could think of.”
In considering the interests of society in being protected from possible future
criminal conduct of the defendant, the court said:
I hope that the defendant has defeated his addiction to methamphetamine.
My experience with people addicted to methamphetamine is there is a high
rate of relapse. I hope that is not the case at all here, but that’s something
the Court has to consider. I can’t simply put my head in the sand and
ignore the fact that the relapse rate is 80, 90 percent. So the interest of
society being protected from possible future criminal conduct of the
defendant are great, based upon his admitted drug use in the past and the
crimes that we’re here on today, I think there . . . is a possibility for future
criminal conduct.
The court then considered and determined that a sentence of probation would
unduly depreciate the seriousness of the offenses, and that confinement was particularly
suited to provide an effective deterrent. As to deterrence, the court elaborated:
Marion County . . . is a small town, [the defendant] . . . admittedly r[a]n
around a lot of people who don’t behave themselves properly and . . . they
know what happened that night and all of a sudden . . . [the trial court has]
just . . . slapped him on the hand and put him back out on the street, I think
that would get around pretty quick in Marion County and not deter similar
activity.
-11-
The court also determined that although the crimes were not particularly gross or heinous,
they were “enormous” in that the defendant committed the “terrifying” act of kicking in
the door to a family’s home during the night.
The trial court noted the factors it considered in determining whether to grant or
deny judicial diversion, including the defendant’s amenability to correction, the
circumstances of the offense, the defendant’s criminal record, the defendant’s social
history, the defendant’s mental and physical health, and the deterrent effect of the
sentencing decision to the defendant and other similarly situated defendants. The court
noted that the defendant appeared to be amenable to correction and had a good social
history except during the period of his drug use, but the court determined that the
circumstances of the offenses weighed heavily against judicial diversion, outweighing all
other factors. Specifically, the court found:
The home invasion in Marion County, and the people were home. Then
stealing a vehicle, fighting with law enforcement. Severely injuring a law
enforcement officer. Then another home invasion in Franklin County
where the people are home. A husband, a wife, an eight year old child, the
mother-in-law. . . . [T]he circumstances of the offenses here outweigh all
these other factors, including the defendant’s criminal record, which he
does not have a criminal record.
The court concluded that “the severity of these crimes warrant a criminal
conviction and for him to have the criminal conviction on his record so people know
what he did.” The court noted the defendant’s failure to take personal responsibility for
his drug use in that he “constantly blamed it on other people, he blamed it on a friend at
work, who just pretty much almost forced him into snorting this stuff at work and then he
blamed it on the friends he’s running around with.” The court also noted the defendant’s
lack of emotion even though he was “facing six years in prison [and] facing the people
who he terrorized that night in their home” and forcing his mother to “take the stand and
testify for [him].”
The court lastly questioned the defendant’s claim that “he was not in his right
mind [and] . . . didn’t know what he was doing,” noting that the defendant “had enough
sense” to “pull on the emotions” of the victims by saying that his little girl was hurt,
possibly as a ploy to gain access to their home. The court also noted that the defendant
“had enough presence of mind” to run when he heard a gunshot.
The court concluded by imposing a sentence of six years’ incarceration based on
the factors it set forth and its analysis of those factors and application to the facts of the
case.
-12-
The record shows that the trial court engaged in a detailed and thorough analysis
to determine whether the defendant should be granted judicial diversion or probation.
The court ultimately determined that the nature and circumstances of the offenses, the
need to avoid depreciating the seriousness of the offenses, and that confinement was
particularly suited to provide an effective deterrent to others likely to commit similar
offenses justified the denial of an alternative sentence.
Generally, to deny alternative sentencing solely on the basis of the seriousness of
the offense, “‘the circumstances of the offense as committed must be especially violent,
horrifying, shocking, reprehensible, offensive or otherwise of an excessive or
exaggerated degree, and the nature of the offense must outweigh all factors favoring a
sentence other than confinement.” State v. Trotter, 201 S.W.3d 651, 654 (Tenn. 2006)
(quoting State v. Grissom, 956 S.W.2d 514, 520 (Tenn. Crim. App. 1997)). Also, to
determine whether a trial court has properly found a need for deterrence, this court
usually looks to State v. Hooper, 29 S.W.3d 1 (Tenn. 2000), in which our supreme court
noted five factors to consider when denying probation on the basis of deterrence and held
that a trial court may impose a sentence of incarceration based solely on a need for
deterrence “when the record contains evidence which would enable a reasonable person
to conclude that (1) deterrence is needed in the community, jurisdiction, or state; and (2)
the defendant’s incarceration may rationally serve as a deterrent to others similarly
situated and likely to commit similar crimes.” Id. at 10-13.
Recently, however, our supreme court determined in State v. Kyto Sihapanya, No.
W2012-00716-SC-R11-CD, 2014 WL 2466054, at *3 (Tenn. Apr. 30, 2014), that “the
heightened standard of review [from Trotter and Hooper] that applies to cases in which
the trial court denies probation based on only one of these factors is inapplicable” when
the trial court “combined the need to avoid depreciating the seriousness of the offense
with the need for deterrence and the nature and circumstances of the offense.” Here, the
trial court did not base its denial of an alternative sentence on one factor alone, but on a
combination of factors. Again, “the abuse of discretion standard accompanied by a
presumption of reasonableness applies to all sentencing decisions, including the grant or
denial of judicial diversion.” King, 432 S.W.3d at 325. The trial court did not abuse its
discretion in imposing a sentence of confinement.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the sentencing
decision of the trial court.
_________________________________
ALAN E. GLENN, JUDGE
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iibtate of Qexae
September 141991
Mr. Ron Jackson Opinion No. DM-38
Executive‘Director
Texas Youth Commission Re: Whether persons between the ages
P. 0. Box 4260 of 18 and 21, and under the supervision of
Austin, Texas 78765 the Texas Youth Commission, may be
detained in local juvenile detention
facilities (RQ-2147)
,
Dear Mr. Jackson:
You have requested our opinion as to whether an individual between the
ages of 18 and 21, and under the supervision of the Texas Youth Commission
(hereafter TYC). may be detained in local juvenile detention facilities.
In 1985, the legislature amended the statutes governing the TYC to increase
the upper age limit for TYC jurisdiction from 18 to 21. Acts 1985,69th Leg., ch. 45,
3 1, at 435. This extension of jurisdiction was accomplished by amending two
portions of what is now the Human Resources Code. Section 61.001 now provides,
in part:
In this chapter:
. . . .
(6) ‘Child’means a person 10 years old or older and
under 21 years old who is committed to the commission under
Title 3, Family Code.
Section 61.084(c) now provides:
(c) The commission shah discharge from its custody a
person not already discharged or transferred on his or her 21st
birthday.
As part of the same bill, section 54.05(b) of the Family Code was amended to read:
P- 187
Mr. Ron Jackson - Page 2 (DM-38)
(b) Except for a wnwnittnent ,to the Taus Youth
Commiwion, all dispositions automatically terminate when the
child reaches his 18th birthday.
Acts 1985,69th Leg., ch. 45,s 3, at 435 (emphasis added).
Chapter 51 of title 3 of the Family Code was not, and has not been, amended,
however, to conform to these 1985 amendments. Section 51.02 still defines “child”in
a manner which is inconsistent with chapter 61 of the Human Resources Code.
In this title:
(1) ‘Child’means a person who is:
(A) ten years of age or older and under 17 years of
age; or
(B) seventeen years of age or older and under 18
years of age who is alleged or found to ‘have engaged in
delinquent conduct or conduct indicating a need for supervision
as a result of acts committed before becoming 17 years of age.
Section 51.12(a) of the Family Code, also unamended in 1985, provides:
Except after transfer to crimimd court for prosecution under
Section 54.02 of this code, a child shah not be detained in or
committed to a compartment of a jail or lockup in which adults
arrested for, charged with, or convicted of crime are detained or
wmmitted, nor be permuted contact with such persons.
TYC is granted broad authority to contract with public or private agencies,
including juvenile detention facilities operated by wunty juvenile boards, for the
care and treatment of its wards. See Hum Res. Code 5 61.037. Pursuant to section
61.084(c) of the Human Resources Code, the TYC has jurisdiction over juveniles
between the ages of 18 and 21. The Family Code, however, does not categorize
persons between the ages of 18 and 21 as juveniles, and explicitly prohibits the
detention of juveniles under the age of 18 in the same compartment or lockup as
adults. Thus, the problem arises whether the TYC can require juvenile detention
facilities to care for its wards between the ages of 18 and 21.
P. 188
Mr. Ron Jackson - Page 3 (DM-38)
There Seems to be a dispute between the TYC and the Texas Juvenile
Probation Commission as to what circumstances, if any, would cause or permit TYC
to detain a person between the ages of 18 and 21 other than his arrest for a aiminal
offense. We need not resolve those questions here. Roth because of the limited
definition of “child”in the Family Code and the specific prohibition of section 51.12
thereof, persons under the age of 18 may not be housed in the same compartment of
a facility as, nor be permitted regular contact with, any individtnd between the ages
of 18 and 21, whether or not they are TYC wards, if such individuals have been
arrested for, charged with, or convicted of a crime. This does not mean that such
individuals may not be housed~in the same fe as juveniles. It means merely that
they may not be confined in the same cell or compartment of ,a facility, or be
con&ted in such proximity as to permit regular contact with juveniles. Thus, TYC
wards between the ages of 18 and 21 may not be, under any circumstances, housed
in a compartment of a facility, or permitted regular contact, with any “child” as
defined by section 51.02 of the Family Code. If on the other hand, such TYC wards
have not been arrested for, charged with, or convicted of any crime, they may be
housed in a juvenile detention facility in compartments with juveniies and may have
contact with juveniles.
SUMMARY
A ward of the Texas Youth Commission between the ages of
18 and 21 who has been arrested for, charged with, or convicted
of any crime may under no circumstances be housed in the same
compartment of a facility as, or permitted regular contact with,
any “child”as defined in section 51.02 of the Family Code.
DAN MORALES
Attorney General of Texas
p. 189
Mr. Ron Jackson - Page 4 (DM-38)
WILL PRYOR
First Assistant Attorney General
MARYKELJXR
Executive Assistant Attorney General
JUDGEZOLUE STEAKLEY.(Ret.)
Special Assistant Attorney General
RENEAHKKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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i&ate of Qexae
DAN MORALES
AITORNEY
GENERAL
June 4,199l
Honorable Emestine V. Glossbremter Opinion No. DM- 27
chairman
Public Education Committee Re: Whether section 13352(d) of the
Texas House of Representatives Texas Education Code authorizes a
P. 0. Rex 2910 principal of a public school to reject
Austin, Texas 78768-2910 teachers who are transferred by the
school district, or voluntarily transfer, to
his school; and whether the principal’s
approval authority extends to all school
staff (m-39)
Dear Ms. Glossbrenner:
You have requested clarification of section 13.352(d) of the Texas
Education Code, which provides the following:
(d) Each principal shalk
(1) approve all teacher and staff appointments for that principal’s campus from
a pool of applicants selected by the district or of applicants who meet the hiring
requirements established by the district, based on criteria developed by the
principal after informal consultation witb the faculty.
You explain that school districts are divided about the interpretation of this
provision. “Some districts believe it to mean the principal must approve only
newly hired teachers and that the law does not give the principal authority to
reject (1) teachers who are transferred to his/her campus by the school district
administration or (2) teachers whom the district approves for voluntary transfer
to his/her campus.” You also ask whether the provision extends to the
“assignment of all campus staff (including such positions as librarian, counselor,
nurse, custodian)” or whether it applies only to instructionaJ staff.
p. 124
Honorable Emestine V. Glossbremer - Page 2 (DM-27)
Section 13.352(d) was amended to its present form in 1990. A comparison
of the pre- and post- amendment versions indicates that the purpose of the
amendment was to give principals more control over their campuses with a view
to greater principal accountability for campus conditions and student
achievement. See also Bii Analysis S.B.1, 71st Leg., 6th C.S. (1990)
“Accountability and Incentive Elements” (Campus Performance Objectives);
Senate Educ. Comnt. Synopsis of S.B.1, Accountabilify and Incentive Ekments of
SenateBill Z SixthCplledSesrion(Principals) (1990) at 3; HOUSE REXARCH
ORGANIZATTON, WRAP UP OF THE 1990 SPECIALSESSIONSON PUBLIC
EDUCATION.at 3647 (July 31, 1990). Before amendment, section 13.352(d)
merely authorized principals to “participate in the selection of teachers for that
principal’s campus.” Nothing in the language of the statute suggests that the
principal’s authority to approve the appointment of a teacher to his campus is
restricted to teachers newly hired by the district or that the principal is bound by
transfer decisions of the district administration. Furthermore, the statute
recognizes the principal’s authority to make selection decisions based on criteria
“developed by the principal after informal consultation with the faculty,” i.e.,
criteria unique to the particular campus. Tbe principal’s authority to shape his
campus through application of unique criteria would be diminished in
derogation of section 13352(d) if the school district could mandate the
principal’s acceptance of transferred teachers. We therefore Bnd that the
approval authority granted by tire provision extends to teachers transferring
within the district.
We believe that the language and history of section 13352(d) also answer
your second question. Prior to the 1990 amendment, the principal’s role in the
selection process for his campus extended only to the selection of teachers. The
provision now establishes the principal’s authority over “all teacher and staff
appointments.” This is clear authority for the principal to exercise his discretion
in selecting individuals to fill staff as well as instructional positions on his
campus.
SUMMARY
Section 13352(d) of the Texas Bducation Code grants authority to
public school principals to approve all teacher and staff appointments on their
p. 125
Honorable Emestine V. Glossbrenner -- Page 3 (DM-27)
campuses. They are therefore not required to accept teachers approved for
transfer to their campuses by the school district administration.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
Madeleine B. Johnson
Chair, Opinion Committee
Prepared by Faith Steinberg
Assistant Attorney General
p.1.126 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125038/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
July 13, 2015
The Honorable Eddie Lucio, Jr. Opinion No. KP-0026
Chair, Committee on Intergovernmental
Relations Re: Question relating to the Galveston City
Texas State Senate Charter and a tax increment reinvestment zone
Post Office Box 12068 governed by chapter 311 of the Tax Code
Austin, Texas 78711-2068 (RQ-0004-KP)
Dear Senator Lucio:
Your predecessor asked several questions relating to the City of Galveston's Charter
("Charter") as it may affect governance of a tax increment reinvestment zone created by the city
under chapter 311 of the Tax Code. 1 Specifically, the questions are:
(1) Does the provision of the Galveston City Charter that
regulates eligibility to serve on a board created by the city
apply to members of the board of directors of a tax increment
reinvestment zone created under Chapter 311, Tax Code?
(2) If the charter provision does apply, do the residency
requirements and term limits provided by the provision apply
to board members of a tax increment reinvestment zone?
Request Letter at 1.
Our analysis of these questions is necessarily limited. The first question requires the
construction of a provision of a city charter, a task which is outside the purview of an attorney
general opinion. See Tex. Att'y Gen. Op. No. GA-0449 (2006) at 1 ("In deference to municipal
officials' authority to interpret their charters and ordinances, this office does not ordinarily
construe city charters or ordinances."). Accordingly, we do not address the applicability of the
Charter. The second question is contingent upon an affirmative answer to the first, but as it
involves the construction of provisions of the Tax Code, it presents legal questions that we can
address. See Tex. Att'y Gen. Op. No. GA-0356 (2005) at 2 (considering charter's implication of
1
See Letter from Honorable Juan Hinojosa, Chair, Senate Comm. on Intergov'tl Relations, to Honorable Ken
Paxton, Tex. Att'y Gen. at I (Jan. 6, 2015), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
The Honorable Eddie Lucio, Jr. - Page 2 (KP-0026)
state law). Thus, while the City of Galveston must determine the applicability of its Charter, we
will presume that it applies for the limited purpose of addressing these legal questions.
With that presumption, we consider the legal issues in the second question. The first issue
concerns a charter residency requirement, which prohibits a person from serving as a member of
a board "if that person has not been a resident of and domiciled in the city for at least one ( 1) year
immediately preceding the appointment." Request Letter at 1-2. Your predecessor noted that a
potential conflict arises when this requirement is considered against subsection 311.009(e) of the
Tax Code. Id at 2. Subsection 311.009(e) provides that to be eligible for appointment to a tax
increment reinvestment zone board, a person
must be at least 18 years of age and:
(1) if the board is covered by Subsection (a):
(A) be a resident of the county in which the zone is
located or a county adjacent to that county; or
(B) own real property in the zone, whether or not the
individual resides in the county in which the zone
is located or a county adjacent to that county; or
(2) if the board is covered by Subsection (b ), own real
property in the zone or be an employee or agent of a
person that owns real property in the zone. 2
TEX. TAX CODE ANN. § 311.009(e) (West 2015) (footnote added). The second issue in the second
question involves the potential conflict between the Charter's term limit requirements and
subsection 311.009(c), which provides that "[m ]embers of the board are appointed for terms of
two years unless longer terms are provided under Article XI, section 11, of the Texas Constitution."
TEX. TAX CODE ANN. § 3 l l .009(c) (West 2015).
The Home-Rule Amendment, article XI, section 5, of the Texas Constitution, bestows upon
certain cities the "full power oflocal self-government." City of Houston v. State ex rel. City of W.
Univ. Place, 176 S.W.2d 928, 929 (Tex. 1943); see TEX. CONST. art. XI,§ 5. But article XI, section
5 also provides that "no charter or any ordinance passed under said charter shall contain any
provision inconsistent" with the constitution or general laws of the state. TEX. CONST. art. XI,§ 5.
Thus, home-rule cities have broad discretionary powers subject only to limitations enacted by the
Legislature. Proctor v. Andrews, 972 S.W.2d 729, 733 (Tex. 1998). "A city is preempted from
regulating in a field ifthe city's regulation is expressly prohibited, if the legislature intended state
law to exclusively occupy that field, or if the city regulation conflicts with the state law even if
2 Subsection (a) provides the requirements for the board of a reinvestment zone, "except as provided by
Subsection (b)." TEX. TAX CODE ANN. § 3l1.009(a). Subsection (b) applies to zones designated under Section
311.005(4) allowing for a zone to be created by petition. See id § 3 l l .009(b).
The Honorable Eddie Lucio, Jr. - Page 3 (KP-0026)
state law is not intended to occupy that field." Tex. Att'y Gen. Op. No. GA-0342 (2005) at 2. "A
general law and a city ordinance will not be held repugnant to each other if any other reasonable
construction leaving both in effect can be reached." City of Richardson v. Responsible Dog
Owners ofTex., 794 S.W.2d 17, 19 (Tex. 1990).
A home-rule city's general police powers to promote the health, safety, and general welfare
of its people may be legislatively circumscribed. See Tex. Att'y Gen. Op. No. JC-0009 (1999) at
4-5 (recognizing that the Legislature may impose limits on the taxation authority of political
subdivisions, including home-rule cities, pursuant to its plenary legislative powers). Particularly
with respect to chapter 311 of the Tax Code, this office has recognized that "in the case of tax
increment financing permitted by article VIII, section 1-g(b), a home-rule city does not exercise
full power of local self-government but rather must look to general law implementing section 1-
g(b) for the authority to engage in tax increment financing." Tex. Att'y Gen. Op. No. GA-0276
(2004) at 5 (explaining that article VIII, section 1-g(b) of the Texas Constitution-the basis for
chapter 311-is, for cities, an exception to the constitutional requirement that taxation be equal
and uniform). Mindful of these principles, we consider generally whether charter requirements
governing residency and term limits could conflict with state law.
We first consider a city-residency requirement. In authorizing a city to do what is
"necessary and convenient" to implement chapter 311, the Legislature has not completely
preempted the field of tax increment financing. See TEX. TAX CODE ANN. § 311. 008(b) (West
2015). Yet, the Legislature has expressly reiterated the prohibition against a city enacting a
conflicting provision. Id. § 311.018 (West 2015). And the Legislature has enumerated precise
eligibility requirements for a board member, particular even to the subsection under which the
zone was created. Id. § 311.009(e)(l)-(2). Such precision reveals an intent by the Legislature to
affirmatively direct the eligibility requirements with respect to a prospective board member's
nexus to the zone by residence or property ownership. Mere difference is not necessarily a conflict,
but when the difference serves to narrow or restrict a right or privilege authorized by state statute
it is likely impermissible. See, e.g., Talley v. City of Killeen, 418 S.W.3d 205, 209 (Tex. App.-
Austin 2013, pet. denied) (concluding that ordinance imposing 240-hour deadline in which to file
a disciplinary appeal "impermissibly narrowed" the ten-day deadline in statute). Thus, a charter
provision requiring city residency that would preclude someone who otherwise satisfies the
Legislature's nexus requirement from being eligible to serve as a board member would be
inconsistent with state law. The conflict between a city residency requirement and subsection
311.009(e) would be irreconcilable: a person who was a city resident could satisfy the eligibility
criteria imposed by the statute, but a non-resident landowner eligible to serve under subsection
311.009(e) would be ineligible because of the charter. Accordingly, a charter's inconsistent
eligibility requirement that a person must be a resident of the city is likely void when applied to
members of the board of directors of a tax increment reinvestment zone created under chapter 311
of the Tax Code.
The same analysis applies to consideration of the second issue regarding a term-limit
requirement. Subsection 311.009(c) establishes a term of office for board members of two years
but is silent regarding the total number of years or terms for which a board member may serve.
See TEX. TAX CODE ANN. § 3l1.009(c). Because subsection 311.009(c) imposes no term limit, it
The Honorable Eddie Lucio, Jr. - Page 4 (KP-0026)
would allow a zone board member to serve an unlimited number of terms. A charter's limit on
terms a person may serve, here after six years, would have the effect of ending a person's statutory
eligibility to continue indefinitely serving as a board member. See generally City of Canyon v.
Fehr, 121 S.W.3d 899, 904 (Tex. App.-Amarillo 2003, no pet.) (recognizing the fact that "charter
provisions and ordinances are subject to the general laws of this state also means that this state's
general laws may permit what a charter prohibits"). This irreconcilable inconsistency between
such a charter term-limit provision and subsection 31 l.009(c) would likely render the charter
provision void to the same extent as the residency requirement.
The Honorable Eddie Lucio, Jr. - Page 5 (KP-0026)
SUMMARY
The question whether the City of Galveston's Charter
applies to a board of a tax increment reinvestment zone created by
the City under chapter 311 of the Tax Code is outside the purview
of an attorney general opinion.
As a general matter, however, a charter provision allowing
only city residents to serve on a tax increment reinvestment zone
board is inconsistent with Tax Code subsection 311.009(e) and is
likely void. Similarly, a charter provision limiting the number of
terms a tax increment reinvestment zone board member may serve
where subsection 311.009(c) would permit the board member to
serve an unlimited number of terms likely renders such a charter
provision void.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4143998/ | TEEATBXB-Y GENERAL
OFTEXAS
AUSTIN H;TEXAR
GERALD C. MANN
Honorable Walter C. Woodward
Life Insurance Commlsslon
Board of Insurance Commission
Austin, Texas
Dear Sir: Opinion No. O-2390
Re: Union Burial Club of Free-
stone County.
Your request for an opinion of this department has
been received and considered. We quote from your letter as
follows:
"I am enclosing a letter received by this De-
partment from the Honorable Bowlen Bond of Fairfield,
Texas, and our reply together with constitution and
by-laws of the Union Burial Club of Fairfield, Texas.
"The reason I am referring the matter to you
Is that Mr. Bond asked that we submit the matter
to the Attorney General to determine if your De-
partment takes the same view of having the Union
Burial Club secure a permit and operate as an in-
surance organization as Is taken by this Department.
'In this connection may I call your attention
to Chapter 8A, mutual assessment life insurance com-
panies, Article 4859f, Section 6B. This particular
law compels all organizations issuing Insurance con-
tracts to secure a permit from the Board of Insurance
Commissioners. I also direct your attention to
Senate Bill 135, passed by the Forty-Sixth Legislature,
which Is now Article 5068-1, section 1 of which tells
the type and kinds of concerns to which this particular
act Is applicable. In the opinion of the Department,
the Union Burial Club would come under the law as an
insurance organisatlon and should be required to
secure a permit and operate thereunder.
"Please study the enclosed constitution and
by-laws of the Union Burial Club and advise the
Department If our position is correct Fn requiring
the said Union Burial Club to secure a permit from
this Department."
Hon. Walter C. Woodward, page 2 O-2390
The adopted Constitution and By-Laws of the IJnios
Burial Club reveal that:
"Article 2. The object of this Club shall
be to promote Benevolence, Charity, Fellowship
and Brotherhood among the membership; to help
sick members and to 'bury the deceased members.
"Article 4. The officers of this Club shall
be President, Vice-President, Secretary, Assistant
Secretary, Treasurer, and other officers as a
majority of the Club may from time to time desire.
"Section 3. It shall be the duty of the
Secretary to keep a fair, full and accurate re-
cord of the proceedings of each meeting, and
maintain and keep a permanent record of the same;
keep a record of all monies received by the
Treasurer and the amount and purpose and to whom
each amount paid out is made; report the financial
condition of the Club when requested by the body;
and to turn over all minutes and records to his or
her successor when duly elected.
"Section 5. The Treasurer shall keep and
hold all money received by the Club, and shall
deposit the same in some'bank deslgnated by the
Club to the credit of Union Burial Club of Free-
stone County, Texas; to keep a record of the
money received, by whom donated and the date there-
of, and a complete record of all money paid out
and to whom paid and the date and purpose there-
of; make his or her report when requested by the
Club; and turn over to his or her successor all
records, reports, etc., when the same has been
duly elected by the Club.
"Article 7. All applications of members
for sick relief benefits, funeral benefits, and
any and all requests from members of the Club
for financial aid or assistance shall be addressed
to the benevolance of this Club.
"Article 11. The Club shall donate to dls-
tressed and sick members upon the recommendation
of the Sick Commlttee, which Committee shall be
appointed by the Club. Any member who has not
donated to the Club in the past three consecutive
months shall not be entitled to a donation from
the Club.
, -
Hon. Walter C. Woodward, page 3 O-2390
"Article 12. The President shall appoint
a Committee which shall be known as the Relief
Committee whose duty it shall be to visit the
sick members of the Club, investigate their
condition, and to report to the Club. It shall
be the duty of a member when he or she gets
sick to communicate with the Chairman of the
Relief Committee, or any member thereof, and
make application for relief if desired.
"Article 13. The President shall appoint
a Committee of three members which shall be
known as the Funeral Committee. It shall be the
duty of the Funeral Committee when notified of the
death of a member of the Club to investigate the
books of the Secretary and determine therefrom
whether said deceased person is a member of the
Club in good standing. If the deceased member Is
In good standing and Is entitled to funeral
benefits, then the Funeral Committee shall make
its recommendation to the Club, and the Presl-
dent, Secretary and Treasurer shall draw on the
funds of the Club such amount as the Funeral
Committee has found the deceased member deserves.
"Article 14. When any member fails to
make a donation to the Club for three consecu-
tive months, his or her name shall be dropped
from the rolls of the Club by the Secretary at
the end of the third month, and such member
shall no longer be a member of this Club in good
standing. Such member may become reinstated by
complying with the Constitution and By-laws and
the rules and regulations of this Club.
"Article 18. Section 2. The Club may
adopt any rules or regulations not inconsistent
with the provisions of the Constitution and By-
laws l * * and any member who fails or refuses
to abide by such rules, regulations and orders
shall automatically be dropped from the member-
ship roll and shall not thereafter be entitled
to any of the benefits of this Club unless and
until he or she Is reinstated under the provi-
sions of this Constitution and By-laws and the
rules and regulations of this Club.
"Article 19. Section 1. Burial benefits
that may be paid on the funeral of the members
of this Club shall be as follows: Not more
.
- .
Hon. Walter C. Woo&ward, page 4 O-2390
than $150.00 when the membership of the Club
is 70 or more; not more than $75.00 when the
membership is 50 or above and~not more than
70; not more than $50.00 when the membership
is less than 50 in.number.
"Section 2. Sick benefits may be paid to
members of the Club when the same has been re-
commended to the Club by the Relief Committee
not to exceed $1.50 per week to any member."
Art. 5068-1, et sep, Vernon's AnnotateKCivll
Statutes governs so called Mutual Assessment Companies.
Section 1 of that article provides:
"This,-
Act shall apply to and embrace all
insurance companies and associations, whether
Incorporated or not, * * * * * whose funds are
derived from the assessments unon Its * * *
members, and shall, in fact, apply to all life,
health and accident companies or associations
which do not come within the provisions cf
Chapter 3, Chapter 5 Chapter 7, Chapter 8,
Chapter 9, Chapter 18, Chapter 19, or Chapter
20, Title 78 of the Revised Civil Statutes of
Texas. This Act shall include local mutual aFd
associations; statewide 1Lfe; or life, health,
and accident associations; mutual assessment
life. health and accident associations: burial
associations; and similar concerns, by'whatso-
ever name or class designated. whether snecifically
named herein or not." (Underscoring ours)
Section 2 of Article 5068-l gives the following
definitions:
"'AssocLation' shall refer to and include
all types of organizations, corporations, firms,
associations, or grouts * * *' (Underscoring ours)
I'+* * + *
"Member' shall include policy holders or
any persons insured by an association, bv wh:t-
soever means the Insurance may be effective.
(Underscoring Ours)
We find that the Union Burial Club does not come
within any of the exceptions announced in section 1 of Art.
5068-1, supra. Consequently, it is our opinion, and you are
Hon. Walter C. Woodward, page 5 O-2390
advised that the constitution and by-laws, as quoted above,
places the Club and its contemplated activities within the
defined scope of that Act.
Art. 485gf (6b), Vernon's Annotated Civil Statutes
provides that it shall be the duty of the Life Insurance Corn:
mission to require "any corporation, person, firm, assocla-
tion, local mutual aid association, or any local association,
company, or organization to have a certificate of authority
before being authorized to carry on any insurance business
in this State."
Trusting that this fully answers your inquiry, we
remain
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s,fWm. J. Fanning
Wm. J. Fanning
Assistant
By skGrundy Willlams
Grundy Williams
GW:RW:wc
APPROVES JUNE'll, 1940
s/Gerald C. Mann
ATTORNEYGEWERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144005/ | OFFICE OF THE OF
FIonoreb2.eKarl Ceyton
County Attommy
mwaon county
Lameea, T6xae
the opinfon of this dope
ata marrtage.
opinion that they may e~~loy the
e death of the janitor'swife 11evbr-
uhip of niaoe and nephew @kndthe
rustee will be the gxsat ~n01o of
bhilUren will not preolude the btr-
9. Kay (Lrcrhoal bo6Lsdbuy gaaol%ne anb oil
on the oantraot basis, eto. far the use of tha
Sobool from a blood oowin of one of the xembem
of the sohool bard.
Honorable Karl Cayton, Page 8
the man to any position, but merely purohaae from
him.
"3. X89 the eohool board, give printing work
to the brother of one of ths members of the aohool
board.
Vhutm explanatiorl
and situation as in l?o. 2.”
Artlale 452 or the Penal Code reads CM follarsr
"Ho ofricer of this State or any otfioer of any
dletrlot, oounty, city, preolnot, school dietriot,
OT other muniolpal subdirlalonof thie Bets, or en9
oiiloer or member of any State, dletrlot, County, city,
sohool dletriot or other munlolpal board, or Judge ot
my Oourt, areated by or under authority of en9 gen-
am1 br spaoiel law of thir State, or an9 ~mekberot
the Lqlslaturs, shall appoint, or vote for, or oon-
firm, the appointmentto an9 ofiios, position olark-
#hip, aarploylaent
or duty, of any person related within
the reoormldegree by affinity or wltbln the third
degree of oonaangulnitpto the permon 80 appointing
OF so toting, or to any othbr member of any euoh
board, the Lagi8kture. or oourt of rbloh auah per-
son 80 appointing or voting ma9 be a nmuber, when the
salary, tosa, or aompensetlonof mob appointee $8 to
be paid for, dl*eotly or indlrootly,out of or rrom
pub110 fund8 or fees of oSfloe of any kind or oharaa-
ter whetaoever.*
3t itsolear, from reading the above ertiole, that a
janitor may not be amp~oped by en lndepsndentsohool dlatrfot
If he ie related to B memberof the aohool board within the
reoond degree of efrinity or the third degree by oonaanguinity.
'Phemethod of ccmputing the degree of oonsangulnity
is eet out In the case of Tyler Tap Railroad Comp~~9 and Douglass
va. Ovsrton 1 Tax. Ct. or App., page e68, Se@. 635, wherein
the OOurt s&at@48
"3~ oomputing the degree of lineal cronsen-
guinity existing between two persona, every gensra-
tlon ie the direct aour of'relatlonahipbetween the
two parties makes a degree, and the rule ie the snme
by the civil and oommon law. The mode of oomputlng
Eonorabls Karl Cuyton, Pa&o 5
degrees or collateraloonsuzgtinltyst the oomwn
ana by th* canon leu 15 to dlsaovsr the oomaen
ancestor, to beein with hlm to reekon Ucwnwartla,
and the degree the two persons, or the nere rem&e
of them, iiiajstant from the anoeoton, is the degree
of kindred sM@fetlng betueen thu. for IndaAoo,
two broth-.r6 Ij~+e
relate6 to cash other in tke Urrt
degree beoauee from the father each one of thea
is one degree. irzl uncle Mb Pophew are related
to eaoh other in the seaond dogree, boeawo the
nephew la two degree8 dietant rrom the eeumon us-
oentor, and the uncle is extsnbed to the remote&
degree of collateralrelatlorrship.*
Degrsoe of affinity me oomputedin th a lmo 'qmner
as those of oonseAgulnity. That is to say, the relrti ~of
the wife ltande at the rame degree at lSflnity te t&s h
3 uld
a8 they are related to the wife of oonrangulhity. Kelly vs.
X0019, UX Ark. 667, 66 Am. Dac. a@@; a Cd. s7ey a 0.J. Sewa-
~UIB,ova.
9ollowlog the rule la laid davn in the Tyler Tep
Ballroad Company and Douglaas oaee, rupra, the fwt6a60a rife
of the man whoa8 amployaent aE jeaitor lr enticipabe&, aid
the member of the aohool bosrd, bslA6 nieor and u~ole, wore
nlated by oonsangPin1tyin the eeeoA6 degree. 3~ the oewe
of Kelly VS. Besly, supra, alted with approval by the Court
of Criminal AppsGs of Tsxam in the ease of Strin(iellow~8.
State, 61 S.W. 719, It is held that by merrtage the xrm plaom
hlm5alf in the same dagree,ot preptaquftyto al& the relatirer
of his wife, alther by affinity or oonra~$uimtiy, as rho actually
stands towards them. This being true, the huaban&, during t&e
litetlmo of the wife, was related to the mamDsr oi the lehool
board by arflnity in the seooti dogme. Doer this relstion-
ship axiot after the death of the wife? Thl5 puemtion 18
anewered by the Court of Civil Appua~s in th* 0880 of Lewfe,
Asea3ror, 5t al ve. O’Eair, 130 SW and 399, ao folh~wer
*Death of the spouee t%XWiiAattM the relation-
ship by affinity! II, however tha maEbSaQfbha8
rerulted in ierue uho are rtlil living; the rati-
tlonsfilpbj’arilnlty contlnues.n Also eee P C.J.
879i Strln@d.low vs. State, 6J.sv1919; Page v6.
State, 22 Tzras hpp. 831.
Honorable Karl Cayton, Pm@ 4
Thl;:will a&vise you that your tir8t queetion ir
answered in the negative.
Rith reference to your scorn& and third que8tlon8,
it UQ~ olearly the intention of thatk3islature in ennot-
Article &V!, supra, to prohibit the employmentof perrona re-
lated within tho prohibiteddegree, froicrentlering por8enal
sonice whloh senloe8 were to be paid for, direotlr or in-
directly, from publio funds. The servloer to be reatIere6irr
eaop of the lnetanceereferred to in your second and third
quefstione are not personal servloe8,but atiegood8 or merslma-
diet8to be delivered in co~~plianoe with a oontraet to be enter-
d into b&n-en th? sohool board and the ra8peatlveindividuals
e8 lmiependentoontrectorn. The oontraotor8are net under the
parsonal auper~lslon or the ummbers of the board, and the bear4
is not interartedin how the obligatlan orsated by the oontradt
is aimbarged, but are only lntareatadln the rem108 obtainok
Nor do we believe the oontraat rererred to in hour
letter, is atreated by Artlale 303 of the Penal Oode, a8 the
oontraot rererml to In that artlole are oontraot8 in tilah
the county or city orrlosr ha6 a protlnlaryintoro8t,and h88
nothing,v?hataaeverto do with the so-called 9Iepotlu* law,
E+Wore, it 18 the oglnloa of.tlpio
departmentthat
your sroond &xl third questtons should be answered ln the
arrirmatlre.
Trusting that the above 8atlsfectoTllyumfer8 your
question,we remain
Very truly your8
#i'TORliEY
OEB?ERALOB TXAS
BY
r#26LA&
.
D. Burla Dad88
Ati8i8tWLt
APPROVE
OPINDN
COMMIR’E
B4!E!
c | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144024/ | L .
THEAYTORNEY GENERAL
Honorable P. L. Marquess
CoiintyAuditor
Wharton.Countg
Wharton, Texas
Dear Sir: Opinion No. O-2364
Re:
15th.
,.
We are In receipt of your letter of May 15, 1940, in
which you request the opinion of this department on the fol-
lowing question contained therein:
"Would it be possible for the Commissioners'
Courts of the several counties to levy the cdunty
taxes in the year 1940 at the regular term in
August If all members were present and there had
been held a public hearing on the county budget
subs~equentto August 15th, yet wlthln theregular
term, and the Commissioners' Court had 'calculated
the rate and adjusted the taxes levied in their
respective counties for general purposes to the
taxable values shown by the assessment rolls.'?"
The following Articles of the Revised Civil Statutes
direct the manner of levy of the county tax:
"Art. 7045:
"The commissioners courts of the several
counties, all the members thereof being present,
at either a regular or special session, may at any
time after the tax assessors of their respective
counties have forwarded to the Comptroller the
said certificate and prior to the tlniewhen the
tax collector of such county shall have begun to
make out his receipts, calculate the rate and aa-
just the taxes levied In their respective counties
for general purposes to the taxable values shown
by the assessment rolls."
Honorable P. L. Marquess, page 2 O-2364
"Art. 2354.
"No county tax shall be levied except at a
regular term of the court, and when all members
of said court are present."
The date when such regular term of the Commissioners'
Court may meet for the purpose of levying the county tax aside
from the above requirements is affected by Article 68ga-11
of Vernon's Annotated Civil Statutes, which provides 1n part
as follows:
"The Commissioners' Court In each county shall
each year provide for a public hearing on the
county budget--which hearing shall take place on
some date to be named by the Commissioners' Court
subsequent to August 15th and prior to the levy
of taxes by such Commissioners' Court. * * *"
(Underscoring ours)
You are advIsed therefore that it 1s necessary that
the public hearing on the county budget be held on some date
subsequent to August 15th and that the Commissioners' Court
may not levy the tax unt11 after such time. There Is no re-
qulrement however that the Commissioners' Court must wait un-
til September to levy the county tax.
It is the opinion of this department that If, as you
outline In your letter, the Commissioners' Courtis in session
at a regular term of said court In August on a date subsequent
to the date on which the public hearing on the county budget
was held that the Commissioners' Court may on such date levy
the county tax.
You call our attention to an opinion written by 9.rs.t
AssistantAttorney General Scott GaWes to Honorable Charle's
K;~Leslie, Jr., County Auditor, Hidalgo County, dated July 31,
1936. In that opinion Mr. GaMes was answering the following
questTon:
"IF the tax levy were set prior to the
public hearing, but at a regular term of the
Commlssloners' Court, would said tax levy be in-
valid? In other words, can we set the tax levy
during the regular term of the~court, during
the week of August lOth, whereas the public
hearing cannot be held until after that week."
In answer to such question Mr- Gaines stated as fol-
lows:
Honorable P. L. Marquess, page 3 O-2364
"The terms of Article 68ga-11 preclude
the Commissioners Court from holding the hear-
ing on the budget prior to August 15th. It
Is equally clear that the tax levy be made after
such a hearing and adoption of a budget for the
succeeding year.
"It is true that the commissioners' court may
not legally levy the tax until the September Term
l **?4 * ’
Mr. Gaines' answer must be construed in connection
with the question asked him. Und,erthe facts submitted to
him the budget hearing could not be held until after the reg-
ular August term of Commissioners' Court had been held and
had passed. Under those facts it was clear that the Commls-
sioners' Court could not legally levy the tax until the Sept-
ember Term. However, as stated by Mr. Gaines, the only re-
qulrement Is that the tax levy be made at a regular meeting
of the Commissioners' Court subsequent to the hearing on the
budget. Under the facts you submit, the tax levy would be
made subsequent to such public hearing on the budget and at
a regular term of the Commissioners' Court.
It Is our opinion, therefore, that Mr. Gaines' opinion
would not be in conflict with our opinion expressed herein to
t~heeffect that the tax levy could be made at such regular
meeting in August subsequent to the public hearing on the
budget.
We call your attention to another opinion written by
Assistant Attorney General Scott Gaines to Hon. H. L. Washburn,
County Auditor, Harris County, dated August 4, 1932. In that
oplnlon the question was asked whether or not the Commissioners'
Court had the authority to watt until September Term of court
to levy the county tax. Mr. Gaines quoted from the three
articles of the civil statutes previously quoted in this opi.nion
and then concluded as follows:
"The levy of taxes by commissioners' courts
should be made at such regular term of the court
with a full membership present, after the taxable
valuations of property have been finally fixed by
the commissioners' court sitting as a board of
equalization, as will allow the county tax assessor
sufficient time in which to prepare and have ap-
proved his tax rolls for the current year, in
order for this official to have the tax rolls in
the hands of the county tax collector so as not
to delay the commencement of the collection of
Honorable P. L. Marquess, page 4 O-2364
taxes on October 1st df each year; and it seems
that the August regular term of
,- the commissioners'
..
court has been uniformly adopr;eaas r;nemosr;ap-
propriate time for this purpose. However, in the
opinion of the writer, a valid levy for current
takes kay be made by the commissioners' court, all
members theredf being presentfiat the regular
September term of said court.
It Is the opLnion Of this department that th&conclu-
sion stated by Mr. Ga~lnesis correct and that the CommLsslon-
ers' Court may levy the county tax at a regular term 6f said
court and at a time subsequent to the holding of the public
hearing on the county budget on a date after August 15th.
This would be t??.ze
whether such regular term of the Commis-
sioners' Court at which the county tax was levied was either
In August or in September.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By s/Billy Goldberg
Billy Goldberg
Assistant
BG:EP:wc
APPROVED JlJN12, 1940
s/Gerald C. Mann
ATTORNEYGENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144026/ | OFFICEOFTHiXA'ITORNRYQENE~OF~
-7 AUSTIN
"The court &a.?.1have mwer to Ii11 vacan-
afe# fo thk orhm ai8 County J&se, Couuty
Clerk, 8herl$f, County Attorney, County Tmasurcr,
County Surkyor, County Hide Inspootor, Assoasor
Of Tame, Colleotoc of luas, Justioes o-ct2e
Poaoe, Constablecr,and County Su~arintendeat of
Publio InfHzuti$ioa. &oh vtoa%oi4s lrhallbe
filled by.a ahjority vote 'or the mar&era of
aaid’~ourt( present aud rotfng. MU the porsm
ohoeea ahall hoia.orrioe until the next ,rtneral
sleetloll."
Article 292T, Revleti Olvli Statutes, 1925, proridorr
'No.poraon ehdu: b ellwble to cay State,
oounty, prroindt 05 munloip~l omar in this
State unlesd.he shnll be~ellgibls to hold office
unaer the Censtltutlon or thfe state, and unless
ho @hall have rsoideU'l5 this State for the
period of twepm aohtb and 8%~ months 5.nthe
aountp,'prooldot, or nunioipalttp, in whbh he
uffere himeelf 6~ a dan&iate, next prm5Uing
any general or 8peoia.leliotion, ana shen hare
beat an aohal bona fld.eoitlsaa of e+id 'county,
preotnatg 'err,atuzbi lity ior aor Uaaa sir
month& E4 118ible to hold office
eha$l evef"h%%name plaoed upon the ballot
at any general or apeoial ele~tioa, or at ay
primary eleotion,whore oandidates are aolooted
under primary election .lars a? ttis State; n&a
~110such tnslfgible~canQidste shall ever be
voted u;1on,nor have votao oountea for,tia, at
any such ~eners~. speaial, or .prlzmryelsotion."
It ia to be observed that there is no roqtireamnt
in the above etatutory and oonatitutlcnal provisions chat a
parson must have a poll tax b&ore ha la ~ualifled to aoaej&
the~orfloe of juetioo or the geaoe r$hentend836 hL2. &Irthar,
w4 have been unable to ~litul any such reqdreze!G 13 any of the
lana of this Stste with regard to tnis particular bXfoe.
3%~ nature ana >wpoee of a poll tay 14 t&at of a
neaeeoary prerequleite to the ri@t cf certoln GWJaatea
olassee to vote. Unleee otherwiae ?rcvidca, the oftlce of
the poll tix is not t+tt of a neoeseary prerequisits to
746
- | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4405295/ | THE THIRTEENTH COURT OF APPEALS
13-18-00233-CV
Super Starr International, LLC, Lance Peterson, Red Starr, SPR de R.L. de C.V., and
Kemal Mert Gumus
v.
Fresh Texas Produce, LLC, Individually and derivatively on behalf of Tex Starr
Distributing, LLC
On Appeal from the
92nd District Court of Hidalgo County, Texas
Trial Cause No. C-4741-16-A
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes the judgment of the trial court should be affirmed in part and reversed
in part, and the case should be remanded to the trial court. The Court orders the
judgment of the trial court AFFIRMED IN PART and REVERSED IN PART, and the
case is REMANDED for further proceedings consistent with its opinion. Costs of the
appeal are adjudged 50% against appellants Super Starr International, LLC, Lance
Peterson, Red Starr, SPR de R.L. de C.V., and Kemal Mert Gumus and 50% against
appellee, Fresh Texas Produce, LLC, Individually and derivatively on behalf of Tex Starr
Distributing, LLC
We further order this decision certified below for observance.
June 6, 2019 | 01-03-2023 | 06-11-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/4125047/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 11, 2015
The Honorable Myra Crownover Opinion No. KP-0017
Chair, Committee on Public Health
Texas House of Representatives Re: Construction of article III, section 49-k
Post Office Box 2910 of the Texas Constitution, related to the
Austin, Texas 78768-2910 Texas Mobility Fund, in light of the 2001
ballot language proposing the constitutional
amendment (RQ-1229-GA)
Dear Representative Crownover:
Your predecessor asked about a 2001 ballot proposition concerning the creation of the
Texas Mobility Fund ("Mobility Fund"). 1 The proposition, Proposition 15, resulted in the addition
of article III, section 49-k to the Texas Constitution. See Tex. S.J. Res. 16, § 1, 77th Leg., R.S.,
2001 Tex. Gen. Laws 6694, 6694-96. Article III, section 49-k created the Mobility Fund, which
is used to provide a method of financing state highways. TEX. CONST. art. III, § 49-k(b). Article
III, section 49-k also authorized the issuing and selling of state obligations that are secured by all
or part of the money in the Mobility Fund. Id. art. III, § 49-k(d). In addition, Proposition 15
resulted in the amendment of article III, section 52-b to repeal the requirement to use toll revenue
to repay certain expenditures of the State Highway Fund ("Highway Fund"). 2 See Tex. S.J. Res.
16, § 2, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6696.
Your predecessor stated that the Texas Department of Transportation ("TxDOT") "now
routinely uses [revenue from] gas taxes to construct toll projects, as well as to pledge it for
repayment of bonds if toll revenues fall short." Request Letter at 3. Your predecessor's request
1
See Letter from Honorable Lois W. Kolkhorst, Chair, House Comm. on Pub. Health, to Honorable Greg
Abbott, Tex. Att' y Gen. at 1 (Nov. 6, 2014), https://texasattorneygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter"); see also Email from Honorable Myra Crownover, Chair, House Comm. on Pub. Health, to Op.
Comm. (Feb. 13, 2015) (requesting this office to continue with the opinion request submitted by the former chair of
the House Committee on Public Health, Honorable Lois Kolkhorst) (on file with Op. Comm.).
2
The Legislature enacted two bills in conjunction with Proposition 15 : Senate Bill 4 provided for the
operation of the Mobility Fund and the issuance of highway bonds, and Senate Bill 342 provided for state
participation in highway toll projects. See Act of May 24, 2001, 77th Leg., R.S., ch. 1213, 2001 Tex. Gen. Laws
2775, 2775-78, Act of May 27, 2001, 77th Leg., R.S., ch. 1237, 2001 Tex. Gen. Laws 2910, 2910- 15.
The Honorable Myra Crownover - Page 2 (KP-0017)
letter cites to several articles describing current toll projects and asserts that the projects are funded
by gas tax revenue. Id. at 3 nn.5-8. The request letter also asserts that the ballot language for
Proposition 15 "makes no direct connection for the authorization of the State Highway Fund-i.e.,
gas tax and vehicle registration fees-to be used for toll projects." Id. at 3. In this context, your
predecessor asked about the sufficiency of the ballot language of Proposition 15. 3
The standard by which to determine the sufficiency of constitutional ballot language is
whether the language "identifies the amendment, showing its character and scope, that is, its intent,
import, subject matter, or theme." Rooms with a View, Inc. v. Private Nat'/ Mortg. Ass'n, Inc., 7
S.W.3d 840, 850 (Tex. App.-Austin 1999, pet. denied). The Texas Supreme Court has said that
"[t]he Constitution requires that certain publicity shall be given a proposed amendment prior to an
election. This is done to identify the amendment and to show its character and purposes, so that
the voters will be familiar with the amendment and its purposes when they cast their ballots." R.R.
Comm'n v. Sterling Oil & Ref Co., 218 S.W.2d 415, 418 (Tex. 1949). Moreover, the supreme
court has acknowledged the impracticability of printing an entire amendment on a ballot:
Exactitude is not required because it would often "be impracticable to print an entire amendment
on a ballot." Id. Thus, in setting the sufficiency standard, Texas courts have consistently
determined that it "is not necessary to include all relevant details or to print the entire proposed
amendment on the ballot." Rooms with a View, 7 S.W.3d at 850; see also Sterling Oil, 218 S.W.2d
at 418 (stating that ballot language must show an amendment's "character and purposes"); accord
Hardy, 849 S.W.2d at 358. And as voters are presumed to be familiar with the contents of a
measure on a ballot, "[a] ballot adequately describes a proposed amendment if it gives fair notice
to the voter of average intelligence by directing him to the amendment so that he can discern its
identity and distinguish it from other propositions on the ballot." Brown v. Blum, 9 S.W.3d 840,
848 (Tex. App.-Houston [14th. Dist.] 1999, pet. dism'd w.o.j.) (quotation marks omitted); accord
Rooms with a View, 7 S.W.3d at 850; see also Hill v. Evans, 414 S.W.2d 684, 692 (Tex. Civ.
App.-Austin 1967, writ refd n.r.e.). A determination about the sufficiency of ballot language is
judged against the "facts at the time the legislature adopted the resolution proposing the
amendment." Hill, 414 S.W.2d at 687.
The November 2001 ballot contained the following language as Proposition 15:
The constitutional amendment creating the Texas Mobility Fund and
authorizing grants and loans of money and issuance of obligations
for financing the construction, reconstruction, acquisition,
operation, and expansion of state highways, turnpikes, toll roads,
toll bridges, and other mobility projects.
3 Y our predecessor did not expressly ask and we do not address whether any particular revenues are being
used improperly to fund current TxDOT toll projects. Such a question would require the resolution of myriad fact
questions that are outside the purview of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-1033 (2013)
at I (noting that fact questions cannot be resolved in the opinion process).
The Honorable Myra Crownover - Page 3 (KP-0017)
Tex. S.J. Res. 16, § 3, 77th Leg., R.S., 2001 Tex. Gen. Laws 6694, 6696. The amendment
described by Proposition 15 created the Mobility Fund and moved the state away from the then-
current "pay-as-you-go" system to one of using state funds to secure long-term obligations to
finance Texas state highway projects. 4 Proposition 15 described both of these changes and
expressly connected the state's new financing obligations to "state highways, turnpikes, toll roads,
toll bridges, and other mobility projects." Id.
Importantly, the preelection publicity for the November 2001 election included at least two
State government publications designed to educate the voters about the full extent of Proposition
15. The Texas Legislative Council and the House Research Organization published
comprehensive guides analyzing all of the proposed amendments, including arguments for and
against each proposed amendment. 5 These publicly available guides include a complete discussion
about Proposition 15's proposed funding mechanism as well as its limitations. TLC Report at
121-24; HRO Report at 44-48. Both of these publications expressly note the changes and removal
oflimitations on the use of the Highway Fund. See TLC Report at 122 (noting that the amendment
would remove existing limitations on use of state money for toll road purposes); HRO Report at
44-45 (noting limitation on dedicated fund sources to Highway Fund as well as the repeal of
requirement that Highway Fund be repaid from toll and other turnpike revenue). A court
addressing the question could be expected to presume the preelection publications educated the
public so that a voter understood the full impact of Proposition 15, including any impact on the
Highway Fund. See Brown, 9 S.W.3d at 848. Furthermore, as Proposition 15 was the only one of
the nineteen proposed amendments on the November 2001 ballot with transportation financing as
its subject, the same court could be expected to conclude that the ballot language enabled a voter
to discern Proposition 15 's identity and distinguish it from the other propositions on the ballot.
See id. That Proposition 15 did not include or refer to every minor detail of the proposed
amendment does not impact the validity of the proposition presented to the voters. See Rooms
with a View, Inc., 7 S.W.3d at 850. Accordingly, it is likely that a court would conclude that the
language used to describe Proposition 15 on the ballot, adding article III, section 49-k to the Texas
Constitution, sufficiently expressed the scope and character of the proposed amendment and set
its subject matter apart from the other amendments to satisfy constitutional standards. 6
4See
TEX. LEGISLATIVE COUNCIL, ANALYSIS OF PROPOSED CONSTITUTIONAL AMENDMENTS, NOVEMBER 6,
2001 ELECTION at 122 (Sept. 2001) (discussing background) ("TLC Report").
5
See id; HOUSE RESEARCH ORG., Focus REPORT No. 77-12, CONSTITUTIONAL AMENDMENTS PROPOSED
FOR NOVEMBER 2001 BALLOT (Aug. 13, 2001) ("HRO Report").
6Typically, courts do not look to ballot language to construe an amendment and instead look to the language
of the amendment to determine its meaning. See Sterling Oil, 218 S.W.2d at 418 (recognizing that ballot language
does not serve to limit the "natural meaning of the language of the amendment itself'); see also In re Al/cat Claims
Serv., L.P., 356 S.W.3d 455, 466 (Tex. 2011) (recognizing that courts try to ascertain and give effect to the plain
language of the framers and voters of the constitution).
The Honorable Myra Crownover - Page 4 (KP-0017)
SUMMARY
A court would likely conclude that the language used to
describe Proposition 15 on the 2001 November ballot, adding article
III, section 49-k to the Texas Constitution, sufficiently expressed the
scope and character of the proposed amendment and set its subject
matter apart from the other amendments to satisfy constitutional
standards.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4125048/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
May 11, 2015
The Honorable Elton R. Mathis Opinion No. KP-0016
Waller County Criminal District Attorney
645 12th Street Re: Payment of attorney's fees for members
Hempstead, Texas 77445 of a county commissioners court under
criminal investigation for potential violations
of the Open Meetings Act (RQ-1228-GA)
Dear Mr. Mathis:
You ask two questions about the payment of attorney's fees for current and former
members of the Waller County Commissioners Court who were under criminal investigation for
potential violations of the Open Meetings Act. 1 You state that after a criminal complaint was filed
alleging the violations, the county criminal district attorney's office2 recused itself from the matter.
Request Letter at 1. The commissioners court "voted to retain counsel to defend county officials
who may be subject to claims or litigation for actions arising from the performance of a public
duty in which the public interest requires a defense of such matters." Id. at 2-3. Special
prosecutors presented their investigation to the grand jury, which declined to return indictments
against the commissioners. Id. at 2. Thereafter, the commissioners court voted to approve
payment of legal fees for defending county officials who were the subject of the claims and the
investigation. Id. In its order, the commissioners court found that: (1) the allegations implicated
county officials in civil or criminal investigations concerning the performance of their public
duties; (2) the public interest in the matter "required a vigorous defense"; (3) the district or county
attorneys could not provide representation because of a conflict of interest; (4) the defense required
outside representation; and (5) the criminal investigation "concluded with no findings of
1
See Letter from Honorable Elton R. Mathis, Waller Cnty. Crim. Dist. Att'y, to Honorable Greg Abbott, Tex.
Att'y Gen. at 1 (Nov. 6, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2
The Waller County Criminal District Attorney has all of the duties that the law assigns to Texas county and
district attorneys. TEX. Gov'T CODE ANN.§ 44.337(a}-(b) (West 2004).
The Honorable Elton R. Mathis - Page 2 (KP-0016)
misconduct." Id. Subsequently, the current and former commissioners submitted invoices they
had received from the defense counsel for payment by the county. Id. 3
You first ask whether section 157.901 of the Local Government Code authorizes the
payment of attorney's fees for a criminal investigation that did not result in any criminal charges
filed. Request Letter at 1. Under subsection 157.901(a), a "county official or employee sued by
any entity ... for an action arising from the performance of public duty is entitled to be represented
by the district attorney of the district in which the county is located, the county attorney, or both."
TEX. Loe. Gov'T CODE ANN. § 157.901(a) (West 2008). Subsection 157.901(b) requires a
commissioners court to employ and pay private counsel for a representation under subsection (a)
when "additional counsel is necessary or proper," or "if it reasonably appears that the act
complained of may form the basis for the filing of a criminal charge against the official or
employee." Id. § 157.901(b). A court of appeals has determined that subsection 157.901(b)'s
reference to criminal charges concerns circumstances that require a county to employ private
counsel to represent its officials and employees in civil, not criminal, matters. White v. Eastland
Cnty., 12 S.W.3d 97, 102 (Tex. App.-Eastland 1999, no pet.). Section 157.901 does not address
county authority to provide legal representation to its officials and employees in criminal matters.
See White, 12 S.W.3d at 102.
As the court in White recognized, however, a commissioners court has general authority to
employ private attorneys in the absence of constitutional or statutory limitations. Id. at 100 (stating
that a county's "implied powers include the authority to contract with experts when necessary,
including attorneys"); see also Guynes v. Galveston Cnty., 861 S.W.2d 861, 863-64 (Tex. 1993)
(determining that a commissioners court may employ attorneys provided that doing so does not
usurp other officials' statutory duties); Tex. Att'y Gen. Op. No. JM-1276 (1990) at 11 (stating that,
with respect to counties, section 157.901 "does not supplant the common-law rule"). This office
has summarized the standards that a court would likely utilize when reviewing the payment of
criminal defense fees:
Provided that the official or employee is not found guilty, the
commissioners court may reimburse criminal defense costs upon its
determination that the prosecution was for an act performed in the
bona fide performance of official duties and that the expenditure will
serve a public interest and not merely an officer's or employee's
private interest.
3
If a governmental body's actions are determined to violate the Open Meetings Act, they are voidable and
subject to being set aside by judicial proceeding. See TEX. Gov'r CODE ANN. § 551.141 (West 2012); Smith Cnty. v.
Thornton, 726 S.W.2d 2, 2-3 (Tex. 1986).
The Honorable Elton R. Mathis - Page 3 (KP-0016)
Tex. Att'y Gen. Op. No. GA-0523 (2007) at 4. 4 Whether employing legal counsel in such
circumstances "implicates a legitimate public interest is a question of fact to be resolved by the
political subdivision's governing body in the first instance." Tex. Att'y Gen. Op. No. JC-0047
(1999) at 3; White, 12 S.W.3d at 104 (determining that whether a county will provide criminal
counsel to its officers or employees in appropriate circumstances is a matter "of governmental
policy and discretion"). Accordingly, a county has the authority to pay attorney's fees for a
member of a commissioners court who sought legal representation for a criminal investigation that
did not result in any criminal charges filed, provided that the commissioners court determines,
subject to judicial review, that the payment will serve a public interest and not merely the
member's private interest.
While a county may have the authority to pay for the criminal defense of county officials
in principle, you also ask whether individual members of a commissioners court who were under
criminal investigation may vote on the approval of county payment of their own attorney's fees
and the fees of other commissioners subject to the investigation. Request Letter at 1. As a matter
of public policy, a public official may not cast the deciding vote in a matter in which the official
has a direct, personal interest. Hager v. State ex rel. Te Vault, 446 S.W.2d 43, 49-50 (Tex. Civ.
App.-Beaumont 1969, writ refd n.r.e.). This office determined in a prior opinion that public
policy precluded a city council member who had been indicted for violating the Open Meetings
Act from voting not only on county payment of attorney's fees for the member's own defense but
also on payment of attorney's fees for the defense of other council members indicted for the same
offense. Tex. Att'y Gen. Op. No. JC-0294 (2000) at 1--4. The opinion observed that it would "be
extremely difficult for any of the indicted council members to make a disinterested determination
as to the other council members indicted for the same offense." Id. at 3. Following the same
reasoning, a court would likely conclude that public policy precludes a member of a commissioners
court under criminal investigation from voting on county payment of the member's criminal
defense fees or the fees of other members subject to the same investigation. 5
4
Citing Attorney General Opinion JC-0294, you suggest that a county may not pay for counsel to provide
criminal defense services to a county official unless charges are filed and the official is found not guilty. Request
Letter at 3--4. In that opinion, city officials had been indicted, and because "[t]he city may not pay the expenses of an
official who is found guilty of the charges [, the city council] must therefore defer its decision to pay the legal expenses
until after disposition of the charges." Tex. Att'y Gen. Op. No. JC-0294 (2000) at 9. The opinion should not be read
as precluding the payment of attorney's fees for services rendered in a criminal matter that concludes favorably at the
grand jury stage.
5
You do not ask and we do not address the authority of members of a governing body who are not subject to
criminal investigation to approve payment of attorney's fees for other members who are under criminal investigation.
Cf Tex. Att'y Gen. Op. No. GA-0554 (2007) at 2 (stating that generally a proposition is enacted if it receives "a
majority vote of the members present and voting at a meeting where a quorum is present" (citation and quotation
marks omitted)); Comm 'rs Ct. of Limestone Cnty. v. Garrett, 236 S.W. 970, 973 (Tex. Comm'n App. 1922, judgm't
adopted) (stating that the "general rule is that, in the absence of an express [statutory] provision to the contrary, a
proposition is carried in a deliberative body by a majority of the legal votes cast").
The Honorable Elton R. Mathis - Page 4 (KP-0016)
SUMMARY
A county has the authority to pay attorney's fees for a
member of a commissioners court who sought legal representation
for a criminal investigation that did not result in any criminal
charges filed, provided that the commissioners court determines,
subject to judicial review, that the payment will serve a public
interest and not merely the member's private interest.
A court would likely conclude that public policy precludes a
member of a commissioners court under criminal investigation from
voting on county payment of the member's criminal defense fees or
the fees of other members subject to the same investigation.
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/4130178/ | 4Bffict of tfp !ZWirnep@enera
%rtatcof Qtxas
March 25,199l
Honorable Ronald Earle Opinion No. DM-9
Travis County District Attorney
P. 0. Box 1748 Re: Whether an individual whose juvenile
Austin Texas 78767 files may not be sealed by virtue of section
51.16(j) of the Family Code has an
affirmative duty to disclose his prior
crimmal history in an application for
employment, information, or licensing
(RQ-2188)
Dear Mr. Earle:
You have requested our opinion regarding whether an individual whose juvenile
files may not be sealed has an affirmative duty to disclose his prior criminal history in an
application for employment, information, or licensing.
Section 51.16 of the Family Code provides for the sealing of the files and records of
persons who are “found to have engaged in delinquent conduct or conduct in need of
supervision.” Subsection (a) describes the procedure by which an individual may apply to a
court for an order sealing his juvenile records, or by which the court may do so on its own
motion. Subsection (h) then declares:
A person whose files and records have been sealed under this Act
is not required in any proceeding or in any application for employment,
information, or licensing to state that he has been the subject of a
proceeding under this Act; and any statement that he has never been
found to be a delinquent child shall never be held against the person in
any criminal or civil proceeding.
In 1987, the legislature added’subsection (j) to section 51.16. That provision reads:
p. 44
Honorable Ronald Fade - Page 2 ( DM-9 )
A court may not order under this section the sealing or destruction
of files and records concerning an adjudication of delinquency based on
the violation of a penal law of the grade of felony.
You ask whether subsection (j) prevents an individual who was adjudicated delinquent on
the basis of a felony charge from claiming the benefit afforded by subsection (h). You do
not raise any question about files sealed before the effective date of subsection (j).
A person may not claim the benefit of subsection (h) unless his “files and records
have been sealed under this Act.” Since subsection (i) clearly prohibits a court from
ordering the sealing of any juvenile record “concerning an adjudication of delinquency
based on the violation of a penal law of the grade of felony,” it follows that subsection (h)
bas no application to such records. Thus, such person may not benefit from the.provision
of subsection (h) of section 51.16 of the Family Code that certain juvenile offenders are not
required to state that they have ‘been the subject of a proceeding” under title 3 of the
Family Code.
SUMMARY
A person who has been adjudicated delinquent on the basis of the
violation of a penal law of the grade of felony and whose records may
not be sealed pursuant to section 51.16(h) of the Family Code is not
entitled to state on an application for employment, information, or
licensing that he has not been the subject of a proceeding under title 3
of the Family Code.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
p. 45
Honorable Ronald Earle - Page 3 ( DM- 9 )
JUDGE ZOLLIE !XEAKLEY (Ret)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
SUSAN GARRISON
Acting Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 46 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130203/ | THE ATTORNEP GENER.&L
OF TEXAS
Honorable Charles S. Brack Opinion No. JM-1266
Chambers County Attorney
P. 0. Box 1200 Re: Whether a city council
Anahuac, Texas 77514 member may simultaneously serve
as a county special district
or school district employee, or
as a director of a navigation
district (RQ-2145)
Dear Mr. Brack:
You have requested our opinion regarding six possible
instances of dual office holding. We will briefly describe
each example before addressing the subject in general terms.
1. A city council member who receives a $40
per month expense allowance and who is also a
county sanitation and safety officer, a
salaried position appointed by the commission-
ers court.
2. A city council member who receives a $40
per month expense allowance and who is also a
salaried employee of a conservation and
reclamation district.
3. A city council member who receives a $40
per month expense allowance and who is also a
salaried teacher employed by a school dis-
trict.
4. A mayor who receives an $80 per month
expense allowance and who is also a salaried
employee of a school district.
5. A city council member who receives a $40
per month expense allowance and who also holds
a per diem compensated appointment as director
of a navigation district.
P. 6763
Honorable Charles S. Brack - Page 2 (JM-1266)
6. A city council member who receives a $40
per month expense allowance and who is also a
salaried employee of a hospital district.
Article XVI, section 40, of the Texas Constitution
furnishes the primary constitutional impediment to dual
office holding. With various exceptions, it provides that
"no person shall hold or exercise at the same time more
than one civil office of emolument.V* The Supreme Court
has repeatedly held that the determining factor in dis-
tinguishing an officer from an employee is whether the
individual in question exercises a "sovereign function of
the sovernment . . . largely independent of the control of
others." Aldine Indeo. School Dist. v. Standlev 280 S.W.2d
578, 583 (Tex. 1955), ouotina Dunbar v. Brazoria'Countv, 224
S.W.Zd 738. 740 ITex. Civ. ADD. - Galveston 1949, writ
ref'd). Eiected officials are ‘ciearly officers, and 'there-
fore the mayor and city council members under consideration
here are officers for purposes of article XVI, section 40.
As to the other positions of which you inquire, it is
useful to consider Attorney General Opinion 3X-499 (1986),
where we held that the chief appraiser of an appraisal
district is an employee rather than an officer: The opinion
turned on the consideration that the chief appraiser exer-
cised his responsibilities subject to review and correction
by the appraisal review board, and served at their pleasure.
In our opinion, if an individual may be terminated at will
by a superior body, he can hardly be said to exercise power
"largely independent of the control of others," since the
superior body is in a position to dictate his every act.
Based on these criteria, we may conclude that since each of
the positions in examples 1, 2, and 6 is subject to control
by a superior body, those positions are employments rather
than offices. Thus, article XVI, section 40, does not bar a
city council member from holding simultaneous positions as a
county sanitation and safety officer, an employee of a
conservation and reclamation district, or an employee of a
hospital district.
With regard to your third and fourth examples, a
further inquiry is necessary. Article XVI, section 40, also
establishes an additional restriction for certain employees
who serve on the governing bodies of a city or other local
governmental districts. It provides in pertinent part:
State employees or other individuals who
receive all or part of their compensation
either directly or indirectly from funds of
the State of Texas and who are not State
officers, shall not be barred from serving as
p. 6~764
Honorable Charles S. Brack - Page 3 (JM-1266)
members of the governing bodies of school
districts, cities, towns, or other local
governmental districts: provided, however,
that such State employees or other individuals
shall receive no salary for serving as members
of such governing bodies.
Tex. Const. art. XVI, 5 40. Teachers and other employees of
school districts receive a portion of their compensation
from funds of the state of Texas. As a result, they may
serve as city council members or as mayor only if they
receive no salary for such service. Attorney General
Opinion JM-118 (1983): MW-230 (1980). We must therefore
determine whether the $40 or $80 per month "expense allow-
ance" constitutes a salary. If it constitutes a salary, the
school teacher must renounce it in order to serve on the
city council. Letter Advisory No. 20 (1973).
For purposes of the quoted provision of article XVI,
section 40, **salary*1does not include legitimate reimburse-
ment of expenses. - See aenerallv Whitehead v. Julian, 476
S.W.2d 844 /Tex. 1972) Iemense allowance does not make
office a "lucrative office";-salary, fees, or other compen-
sation must be paid): Willis v. Potts, 377 S.W.Zd 622 (Tex.
1964) (token payment of $10 per meeting makes city council
member's office a "lucrative office"); Attorney General
Opinion MW-450 (1982); MW-230. In the examples you cite, we
do not believe that the school teacher or other salaried
employee of the school district may receive compensation for
serving as mayor or city council member merely by denominat-
ing a $40 or $80 monthly payment an "expense allowance"
rather than a ltsalary.*' At the very least, the official
should submit an affidavit that the actual expenses he
incurs each month equal or exceed the allowance payment.
The better practice would be for the official to itemize his
expenses each month in order to demonstrate that the allow-
ance does not exceed expenses incurred. See Attorney
General Opinion H-992 (1977).
As to your fifth example, a director of a navigation
district holds an office, and since, by your description, he
receives a per diem compensation for such service, he may
avoid the prohibition of article XVI, section 40, only if
his city council position is not one of emolument. The same
test applied to the school district employees in your third
and fourth examples is applicable here: if the "expense
allowance" can be fairly demonstrated to constitute reim-
bursement for actual expenses, the constitutional provision
does not bar the city council member from also serving as
director of a navigation district.
p. 6765
Honorable Charles S. Brack - Page 4 (JM-1266)
We must also consider the common law doctrine of
incompatibility as applied to the positions of which you
inquire. That doctrine prohibits one individual from
occupying "two offices where one office might thereby impose
its policies on the other or subject it to control in some
other way." Attorney General Opinion JM-129 (1984); see
&&lg Attorney General Opinion JM-133 (1984). The aspect of
the doctrine relevant here, sometimes called the "con-
flicting loyalties" type of incompatibility to distinguish
it from the "self-employment I0type, see Letter Advisory No.
114 (1975), has never been held to apply to a situation in
which one position is an office and the other an emDlovment.
Indeed, the original Texas case involving incompatibility,
Thomas v. Abernathv Countv Line IndeD. School Dist., 290
S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted), involved
the gffices of city alderman and school trustee. On other
occasions, we have held incompatible the offices of communi-
ty college trustee and county commissioner, Attorney General
.~.--Opinion JM-129-;;'and the offices of county auditor and city~
council member. Attorney General Opinion JM-133; see also
Letter Advisory No. 149 (1977).
Applying these principles to your six examples, we
believe it is clear that incompatibility has no application
to numbers l-4 or to number 6, since in each instance one of
the positions is a mere employment. As to the fifth exam-
ple, it is equally apparent that both positions are offices.
If the geographical boundaries of the navigation district
overlap with those of the city of which the individual is a
council member, there is at least a potential for conflict-
ing loyalties. We cannot say as a matter of law, however,
that these positions are incompatible. If, for example, the
two political subdivisions contract with each other, there
probably exists sufficient potential for conflicting loyal-
ties as to render the two positions incompatible. Again, if
the navigation district has and exercises taxing authority,
the potential for conflict is probably insurmountable. We
conclude that the common law doctrine of incompatibility
may, but does not as a matter of law, prohibit a single
individual from serving both as a member of a board of
directors of a navigation district and as a city council
member of a municipality where the territory of the district
and municipality overlap.
SUMMARY
Neither article XVI, section 40, of the
Texas Constitution nor the common law doc-
trine of incompatibility bars a city council
member from simultaneously serving as a
county sanitation and safety officer, an
P. 6766
Honorable Charles S. Brack - Page 5 (JM-1266)
employee of a conservation and reclamation
district, or an employee of a hospital
district. A mayor or city council member iS
not barred by incompatibility from simul-
taneously serving as an employee of an
independent school district, but he must
renounce any salary or compensation for
serving as mayor or city council member. A
city council member is barred by article XVI,
section 40, from serving as a director of a
navigation district unless the allowance
received for serving as council member can be
demonstrated to constitute reimbursement for
expenses only. Common-law incompatibility
may, depending on the circumstances, bar one
individual from serving both as city council
member and as director of a navigation dis-
trict, but it does not do so as a matter of
law.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
P. 6767 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150318/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00442-CV
R. H., Appellant
v.
D. A. and R. A., Appellees
FROM THE DISTRICT COURT OF SCHLEICHER COUNTY, 51ST JUDICIAL DISTRICT
NO. 3233, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant R.H. (Mother) appeals the trial court’s order appointing nonparents D.A.
and R.A. as joint managing conservators of her child, R.E.G. In one issue, Mother contends that the
trial court abused its discretion because D.A. and R.A. did not offer sufficient evidence to overcome
the statutory presumption that the court should appoint her as R.E.G.’s sole managing conservator.
See Tex. Fam. Code § 153.131. We will reverse and remand.
BACKGROUND
In September 2014, R.E.G.’s father (Father) and Mother took one-month old R.E.G.
to the emergency room in Eldorado, Texas. The parents reported to hospital staff that R.E.G. had
fallen off the bed when Father was changing the infant’s diaper. R.E.G. was unable to move his
arm, and staff soon determined that R.E.G. had fractured his collar bone and right humerus. After
the attending doctor concluded that the injuries were inconsistent with the parents’ version of
events, the Department of Family and Protective Services intervened.
Soon after, the Department filed an original petition for protection of the child and,
if necessary, for termination of the parental rights of R.E.G.’s Father and Mother. The Department
also sought conservatorship of R.E.G., alleging that appointment of one or both of the parents as
permanent managing conservator would not be in the best interest of the child because such
appointment would significantly impair the child’s physical health or emotional development. See
Tex. Fam. Code § 263.404.
R.E.G. was removed from the parents’ home and voluntarily placed with Father’s
uncle and aunt, D.A. and R.A., who reside in Junction, Texas. In October, 2014, the trial court
entered temporary orders appointing the Department temporary managing conservator of R.E.G
and ordering the parents to comply with service plans set out by the Department. The next month,
D.A. and R.A. intervened in the suit and sought permanent managing conservatorship of R.E.G. See
Tex. Fam. Code § 102.004; In re N.L.G., 238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007,
no pet.) (recognizing that foster parents with past substantial contact with child may intervene under
section 102.004(b) in Department suit for termination).
In October 2015, Father agreed to be appointed a possessory conservator of R.E.G.,
to have limited access and visitation, and to pay child support and medical support.1 The trial court
1
While a managing conservator has wide ranging rights and duties with respect to the
child’s residence, medical treatment, and education, see Tex. Fam. Code § 153.132, a possessory
conservator typically has visitation rights under terms and conditions set by the court, see id.
§ 153.192.
2
entered an order in accordance with the agreement of the parties and expressly found that
appointment of Father as a managing conservator “would significantly impair the child’s physical
health or emotional development.” In addition, the trial court’s order stated that the order “in no
way affect[ed] the conservatorship, visitation, child support, and medical support as to [Mother].”
On March 22, 2016, the Department filed a motion for an order approving monitored
return to Mother. See Tex. Fam. Code § 263.403 (monitored return of child to parent). According
to the motion, the Department thought that a monitored return of R.E.G. to Mother was appropriate
because Mother had “participated in and completed the services set out in the plan developed for
her by the Department in order to achieve family reunification.” Further, the Department stated that
it believed that Mother would “be able to provide a safe and adequate home for the child, as long as
she continues with the recommendations of the Department, and that continued separation of the
child from the mother would not be in the best interest of the child.”
D.A. and R.A. filed a response to the Department’s motion for monitored return,
opposing the reunification of R.E.G. and Mother. In their response, D.A. and R.A. asserted that
R.E.G.’s “separation from the Intervenors would cause emotional stress and would not be in the best
interest of the child.” Similarly, the court-appointed special advocate (CASA) filed a report with the
court, disagreeing with the Department’s goal of family reunification and instead recommending that
the trial court order joint managing conservatorship of the child between D.A. and R.A. and Mother.2
2
The attorney ad litem also filed a response, stating only that he disagreed with the
Department’s recommendation.
3
A final hearing before the trial court convened on April 6, 2016, and then reconvened
on May 12, 2016. At the hearing, the Department recommended that the trial court order a monitored
return of R.E.G. to Mother with continued involvement by the Department and other parties,
including D.A. and R.A. The Department and Mother presented the testimony of several witnesses
in support of the Department’s recommendation, including testimony from two Department
representatives, a CASA volunteer involved in the case, D.A., and Mother.3 The testimony of these
witnesses established, in part, the following undisputed facts:
• R.E.G. was born in August of 2014, when Mother was nineteen years old
and shortly before Mother graduated from high school. Since the removal of
R.E.G. by the Department, Mother has separated from R.E.G.’s Father and
has come to believe that Father lied to her about how R.E.G.’s injuries were
sustained.
• Mother was placed on a service plan by the Department. Mother has
communicated regularly with the Department and complied with the
requirements of the Department’s service plan by (1) attending more than the
required number of parenting classes; (2) completing individual counseling
and psychological testing; (3) obtaining and maintaining a clean, appropriate
home environment; and (4) providing for the basic needs of R.E.G., such as
food, clothing, and diapers.
• Mother’s service plan also required her to maintain a legal source of income.
Mother was employed part-time at Stripes in Eldorado from March 2015
to May 2015 and then was then unemployed from May 2015 to December
2015. During this period of unemployment, Mother actively tried to find
employment.
3
The Department first presented the testimony of Rebecca Zapata, the supervisor with the
Department who oversaw the Department’s conservatorship of R.E.G. The Department also presented
the testimony of Michelle Clay, a Department employee who on several occasions transported
R.E.G. between Mother’s home and D.A. and R.A.’s home and supervised at least some of R.E.G.’s
supervised visits with Mother. Mother also presented the testimony of several witnesses, including
Tina Bean, the court-appointed special advocate (CASA) who was familiar with the case.
4
• After the case began, Mother moved to San Angelo for better job opportunities
and eventually found employment at a restaurant. Mother began working at
the restaurant in December 2015 and, at the time of the hearing, was still
employed by the restaurant and working full time. Despite the period of
unemployment, the Department was satisfied that Mother had complied with
the service plan’s income requirement.
• When the case began, Mother was living with family and was working to
save up money for an apartment. Mother has resided in her own apartment
since March 2015. At the time of the final hearing, Mother was sharing a
two-bedroom apartment with a roommate in San Angelo. She also had
obtained her driver’s license, purchased a vehicle without a loan, and saved
approximately two hundred dollars.
• Mother relies on her sister-in-law and on her roommate for childcare when
she works. Both were approved by the Department as appropriate caregivers.
• Mother was initially allowed only supervised visits with R.E.G. During these
visits with R.E.G., Mother would feed him, bathe him, change him, and play
with him. The Department considered the Mother’s care of R.E.G. during
these visits to be appropriate and the relationship between Mother and
R.E.G. to be “good.” Mother was later allowed unsupervised visits with
R.E.G., including overnight visits.
• In December 2015, CASA did not recommend a monitored return of R.E.G.
because, at that time, Mother did not have full time employment and a stable
home. However, based on her observations of Mother with R.E.G., the
CASA volunteer involved in Mother’s case currently is not opposed to a
monitored return “where everybody stays involved.”
• R.E.G. has bonded with D.A. and R.A. while he has been in their care.
At the conclusion of the hearing, the trial court refused to order a monitored return
of R.E.G. Instead, the trial court, without terminating Mother’s parental rights, signed a final order
appointing D.A. and R.A and Mother as joint managing conservators. In addition, the court granted
D.A. and R.A. the exclusive right to determine R.E.G.’s primary residence and granted Mother
visitation rights pursuant to a standard possession order.
5
On appeal, Mother challenges the trial court’s decision to refuse to appoint her as
R.E.G.’s sole managing conservator and to instead appoint her as joint managing conservator along
with D.A and R.A. No party by cross-appeal or otherwise has argued that the trial court erred in not
terminating Mother’s parental rights. Thus, the only issue before us is the propriety of the trial
court’s decision with respect to conservatorship.
STANDARD OF REVIEW
We review a trial court’s decision regarding conservatorship for an abuse of
discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A decision on conservatorship will be
reversed only if the decision is arbitrary and unreasonable. Id.; see Echols v. Olivarez, 85 S.W.3d 475,
477 (Tex. App.—Austin 2002, no pet.).
In family law cases, the abuse-of-discretion standard overlaps with traditional
sufficiency standards of review. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin
2006, pet. denied). Consequently, in applying the standard, we engage in a two-pronged inquiry:
(1) whether the trial court had sufficient information upon which to exercise its discretion and
(2) whether the trial court erred in its application of that discretion. Echols, 85 S.W.3d at 477-78.
The focus of the first inquiry is the sufficiency of the evidence. See Zeifman, 212 S.W.3d at 588.
Under the second inquiry, we must decide whether, based on the evidence before it, the trial court
made a reasonable decision. Id.
When, as here, no findings of fact and conclusions of law were requested or filed, it is
implied that the trial court made all findings necessary to support its judgment. Worford v. Stamper,
6
801 S.W.2d 108, 109 (Tex. 1990) (per curiam). These implied findings may be challenged for legal
and factual sufficiency. Id.
ANALYSIS
Parental Presumption
Section 161.205 of the Texas Family Code authorizes the trial court to make any
orders in the child’s best interest when it denies a petition to terminate the parent-child relationship.4
Tex. Fam. Code § 161.205. While generally the trial court has wide latitude in determining the best
interest of the child, Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), the Legislature has
explicitly limited the exercise of that discretion when a nonparent seeks appointment as a managing
conservator, Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).
The Texas Family Code creates a strong presumption that appointing a child’s
parent as sole managing conservator (or both parents as joint managing conservators) is in the best
interest of the child. See Tex. Fam. Code § 153.131; Lewelling, 796 S.W.2d at 167. This
presumption is “deeply embedded in Texas law” and “is based on the natural affection usually
flowing between parent and child.” In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). The parental
presumption provides for the appointment of a parent as sole managing conservator or the parents
4
There is no dispute that Section 161.205 generally permits a trial court to appoint a
nonparent as a managing conservator when it denies a petition to terminate, as it did in this case.
See also Tex. Fam. Code § 263.404 (providing that court may render final order appointing
department as managing conservator without terminating right of parent if (1) appointment of parent
would not be in best interest of child because “the appointment would significantly impair the child’s
physical health or emotion development” and (2) “it would not be in the best interest of the child to
appoint a relative of the child or another person as managing conservator.”).
7
as joint managing conservators unless the court finds that the appointment of the parent or parents
would significantly impair the child’s physical health or emotional development.5 See Tex. Fam.
Code § 153.131(a); In re J.A.J., 243 S.W.3d at 616. To overcome the presumption, a nonparent
seeking managing conservatorship must prove by a preponderance of credible evidence that appointing
the parent as a managing conservator would result in serious physical or emotional harm to the
child. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
Significant Impairment
In her sole issue on appeal, Mother asserts that the trial court abused its discretion in
requiring her to share conservatorship with D.A. and R.A. because the evidence is legally insufficient
to defeat the parental presumption.6 In other words, Mother asserts that the evidence fails to
support the trial court’s implied finding that her appointment as sole managing conservator would
significantly impair R.E.G.’s physical health or emotional development. According to Mother, the
undisputed evidence presented at the final hearing demonstrates that she adequately addressed any
initial concerns that the Department had in removing R.E.G. from her care based on past conduct
5
Although the Family Code provides several other grounds for overcoming the parental
presumption, none of those grounds are at issue in this case. See Tex. Fam. Code §§ 153.004,
153.131 (b), 153.373.
6
To determine if the evidence is legally sufficient to support the trial court’s exercise of
discretion, we consider the evidence in the light most favorable to the trial court’s findings if a
reasonable factfinder could and disregard evidence to the contrary unless a reasonable factfinder
could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We may sustain a legal
sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital
fact; (2) the court is barred by rules of law or of the evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Id. at 810.
8
by successfully completing all of the requirements in her service plan and, to the extent the record
raises any issue relevant to her present fitness to be a managing conservator, the evidence “amounts
to no more than mere speculation” of harm.
To support a finding of significant impairment, the evidence must do more than
merely raise a suspicion or speculation of possible harm.7 In re B.B.M., 291 S.W.3d 463, 467 (Tex.
App.—Dallas 2009, pet. denied). Instead, the evidence must support the logical inference that some
specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions,
will probably cause serious harm. In re Crumbley, 404 S.W.3d 156, 161 (Tex. App.—Texarkana
2013, orig. proceeding); In re B.B.M., 291 S.W.3d at 467; Taylor v. Taylor, 254 S.W.3d 527, 536
(Tex. App.—Houston [1st Dist.] 2008, no pet.); see also In re S.T., No. 02-15-00203-CV, 2015 WL
9244913, at *8 (Tex. App.—Fort Worth Dec. 17, 2015, no pet.). This is a heavy burden that is
7
D.A. and R.A. argue that the parental presumption under Section 153.131 of the Family
Code does not apply in this case because Mother was, in fact, appointed as a joint managing
conservator. In support of their argument, D.A. and R.A. rely on the Texas Supreme Court’s decision
in Brook v. Brook, 881 S.W.2d 297, 300 (Tex. 1994) (holding that heightened standard for nonparent
conservatorship appointment does not apply when nonparent seeks joint managing conservatorship
with parent). However, the Court in Brook interpreted a statutory provision regarding the appointment
of managing conservators that has since been repealed. See Act of May 14, 1991, 72d Leg., R.S.,
ch. 161, § 2, 1991 Tex. Gen. Laws 771, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20. § 2,
1995 Tex. Gen. Laws 282 (former Tex. Fam. Code § 14.01); Brook, 881 S.W.2d at 299 (analyzing
former Tex. Fam. Code § 14.01). Unlike the statute at issue in Brook, Section 153.131 clearly
establishes a presumption favoring the appointment of the parent as sole managing conservator (or
when applicable, the parents as joint managing conservators) that must be rebutted by any nonparent
seeking managing conservatorship appointment at the exclusion of or in addition to the parent or
parents. Critz v. Critz, 297 S.W.3d 464, 472 & n.23 (Tex. App.—Fort Worth 2009, no pet.); see
also Compton v. Pfannenstiel, 428 S.W.3d 881, 887(Tex. App.—Houston [1st Dist.] 2014, no pet.)
(explaining that section 153.131 reflects principle that “in ordinary case, parents should be free from
legal interference in the parent-child relationship”). Compare Tex. Fam. Code § 153.131, with
former Tex. Fam. Code § 14.01.
9
not satisfied by merely showing the nonparent would be a better choice as custodian of the
child. Lewelling, 796 S.W.2d at 167. When a parent and a nonparent are both seeking managing
conservatorship, “close calls” should be decided in favor of the parent. Id. at 168. Acts or omissions
that constitute significant impairment include, but are not limited to, physical abuse, severe neglect,
abandonment, drug or alcohol abuse, or immoral behavior by the parent. In re B.B.M., 291 S.W.3d
at 469 (citing In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.)). A
factfinder may infer the present fitness of the parent to be managing conservator from the parent’s
recent, deliberate past misconduct. See In re M.W., 959 S.W.2d 661, 666 (Tex. App.—Tyler 1997,
no writ). However, evidence of past misconduct, standing alone, may not be sufficient to show
present unfitness. Chavez v. Chavez , 148 S.W.3d 449, 458 (Tex. App.—El Paso 2004, no pet.)
(citing M.W., 959 S.W.2d at 666); see Taylor, 254 S.W.3d at 536.
D.A. and R.A. rely on various portions of the record that, they contend, support the
trial court’s implied finding that appointment of Mother as sole managing conservator would
significantly impair R.E.G.’s physical health or emotional development. First, D.A. and R.A. point
to evidence concerning Mother’s actions in connection with the incident that led to R.E.G.’s
removal. Specifically, D.A. and R.A. rely on the following exchange that took place between Zapata,
a supervisor for the Department, and counsel for D.A. and R.A. concerning the Department’s
removal of R.E.G.:
Zapata: The child went to the emergency room here in Eldorado for a clavicle
injury. The parents, at that point, both [Mother] and [Father], said
that it was due to the child falling off the bed.
Attorney: Was that during a diaper change?
10
Zapata: Yes.
Attorney: The clavicle was found to be a spiral fracture, and the humerus bone
was a complete break; is that correct?
Zapata: Correct.
Attorney: And that version, the doctor said that the version of events that were
given by the parents was not consistent with the actual injuries; is that
correct?
Zapata: That is correct.
Attorney: This was not a removal based upon drug use, was it?
Zapata: No, it was not.
Attorney: Was it based upon not feeding the child or not changing the child’s
diaper or anything of that nature?
Zapata: No, it was not.
Attorney; And, actually, the injury was not tended to immediately, is that also
correct?
Zapata: That is correct.
Attorney: So it was more of a lack of recognition of proper care?
Zapata: Yes.
D.A. and R.A. do not contend that this testimony, or any other evidence in the record,
suggests that Mother was directly involved in causing R.E.G.’s injuries or that Mother was aware of
how the injuries were caused and attempted to conceal that cause. Rather, the undisputed evidence
shows that Father was the only person present when the injury occurred, he reported to Mother
that R.E.G.’s injuries were caused by R.E.G.’s falling off the bed, Mother later realized that this
11
report about the cause of R.E.G.’s injury was untrue, and Mother and Father are now separated.
Nevertheless, D.A. and R.A. contend that Zapata’s testimony is sufficient to support the trial court’s
conservatorship decision because, according to D.A. and R.A., it suggests that Mother failed to
recognize R.E.G.’s condition and to promptly seek medical care. We disagree.
At best, Zapata’s testimony suggests that the Department initially removed R.E.G.,
in part, because the Department was concerned that Mother may have failed to timely seek “proper
care” for R.E.G. However, the record fails to include any evidence of specific actions or omissions
of Mother with respect to her alleged failure to recognize R.E.G.’s injuries or to seek proper medical
care in September 2014, twenty months before the final hearing. See Lewelling, 796 S.W.2d at 167
(explaining that nonparent must offer evidence of “specific actions or omissions”). For example,
there was no evidence presented at the final hearing demonstrating what Mother knew about
R.E.G.’s injuries and when; what outward symptoms R.E.G. was exhibiting and when; what actions
Mother took, if any; and what she should have done differently. As a result, Zapata’s conclusory
testimony that R.E.G.’s “injury was not tended to immediately” fails to provide any basis from
which a factfinder could determine whether Mother, in fact, failed to promptly seek care for R.E.G.
and, even if so, whether significant harm will likely occur in the future if Mother were appointed
sole managing conservator. Taylor, 254 S.W.3d at 536. (“In and of itself . . . evidence of past
misconduct may not be sufficient to show present unfitness.”). As a result, this evidence is legally
insufficient to rebut the parental presumption.
Second, D.A. and R.A. point to evidence that, they contend, shows that Mother
engaged in “immoral behavior.” D.A. and R.A. rely on testimony from Zapata acknowledging that
12
a criminal trespass warning had been issued against Mother at the request of a local high school
principal. Zapata testified that the Department was informed by school officials that the warning
was issued after students reported to the school counselor that they had seen Mother kissing a fifteen-
year-old student on campus. According to Zapata, the Department investigated the claim and was
told that the student was a family friend whom Mother was helping through a difficult family
situation. Mother denied the allegations, no one from the Department ever spoke with the fifteen-
year-old student, and the school did not provide the Department with any information other than the
fact that “other students had reported” the incident. Nevertheless, based on the report, the Department
required Mother to participate in three additional counseling sessions, which she did. According
to Zapata, the psychologist reported that he “didn’t feel like there was any concern or any more
material to cover with her.” D.A. and R.A. do not explain, and we fail to see, how this evidence—an
unsubstantiated report of conduct unrelated to Mother’s care of R.E.G.—supports a logical inference
that some specific, identifiable conduct by Mother will probably cause significant harm to R.E.G.
At most, this evidence “merely raise[s] a suspicion or speculation of possible harm” and is legally
insufficient to demonstrate that significant harm will probably result if Mother is appointed sole
managing conservator. See In re B.B.M., 291 S.W.3d at 467.
Next, D.A. and R.A. argue that the record contains evidence of actions by Mother
that allegedly demonstrate “questionable judgment and a lack of care.” Specifically, D.A. and R.A.
argue that the evidence shows that Mother “did not treat [a severe diaper rash] after the first day of
a multi-day visit by [R.E.G.] in her home”; on one occasion, allowed “dirt and filth” to build-up
around the child’s lower torso; and on a separate occasion, returned the child to D.A. and R.A.
13
dressed inappropriately for the cold weather. D.A. and R.A. also point to a photograph that Mother
took that, according to D.A. and R.A., shows R.E.G. reaching for an electrical outlet cover. We
conclude that these isolated incidences of past conduct, occurring over a twenty-month period, fail
to rise above mere speculation of harm and, consequently, are legally insufficient to support the trial
court’s implied finding of significant impairment. See Whitworth, 222 S.W.3d at 623 (explaining
that it is “wholly inadequate to simply present evidence that a non-parent would be a better choice
as custodian of the child,” citing Lewelling, 796 S.W.2d at 167).
Finally, D.A. and R.A. point to evidence that they contend shows that Mother lacks
employment and a “steady source of income.” D.A. and R.A. assert that evidence presented at the
final hearing shows that Mother was working very few hours when the case began, was unemployed
for almost eight months, and often has relied on the assistance of others. Standing alone, the fact
that a parent is unemployed, even at the time of the final hearing, is no evidence of significant
impairment to the child. See Lewelling, 796 S.W.2d at 167 (concluding that fact that parent “was
unemployed at the time of the custody hearing and living in somewhat crowded conditions” was
no evidence of significant impairment). The undisputed evidence presented at the final hearing
established that Mother had been working full time for at least the last four months. She also was
maintaining a two-bedroom apartment, saving money, and providing for the basic needs of R.E.G.
There is no evidence that Mother’s past employment history had significantly impaired R.E.G.’s
physical health or emotional development, or would in the future.
At the final hearing, Department representatives testified that the Department was
satisfied that Mother had sufficiently demonstrated that she could provide a safe and adequate home
14
for R.E.G. To succeed on their request for managing conservatorship, D.A. and R.A. were required
to rebut the presumption that Mother should be appointed sole managing conservator by presenting
a preponderance of credible evidence that Mother engaged in specific, identifiable behavior
demonstrating that naming her as managing conservator would significantly impair R.E.G.’s physical
health or emotional development. See Lewelling, 796 S.W.2d at 167. D.A. and R.A. failed to meet
this burden of proof. After considering the evidence in the light most favorable to the judgment, we
conclude that there is no evidence of specific acts or omissions from which the court could have
logically inferred that Mother is presently unfit to be a managing conservator and, consequently, that
appointing her sole managing conservator is not in R.E.G.’s best interest. See Tex. Fam. Code
§ 153.131. The trial court abused its discretion in failing to award sole managing conservatorship
to Mother, and we sustain Mother’s sole issue on appeal.
CONCLUSION
The order of the trial court is reversed, and the cause is remanded for further
proceedings to determine the rights between the parties.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Field and Bourland
Reversed and Remanded
Filed: March 2, 2017
15 | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130210/ | ‘.
.
December 12, 1990
Honorable John Whitmire Opinion NO. JM-1259
Chairman
Health And Human Services Re: Authority of a municipal
Committee utility district operating
Texas State Senate under chapter 54 of the Water
P. 0. Box 12068 Code to acquire real property
Austin, Texas 78711 for use as a park, and related
questions (RQ-2056)
Dear Senator Whitmire:
You have requested a clarification of Attorney General
Opinion JM-1173 (1990). Specifically, you ask whether it is
permissible for a municipal utility district created pur-
suant to article XVI, section 59, of the Texas Constitution
and operating under chapter 54 of the Texas Water Code, to
use revenue notes to finance the acquisition of park land
and park facilities.
Municipal utility districts are among the conservation
and reclamation districts created pursuant to article XVI,
section 59 of the Texas Constitution [the "conservation
amendment"]. The conservation amendment was added to the
constitution in 1917. Subsection (a) of the conservation
amendment consists of a statement of public policy and
includes a listing of public purposes that the amendment is
intended to address. Subsection (a) reads as follows:
(a) The conservation and development of
all of the natural resources of this State,
including the control, storing, preservation
and distribution of its storm and flood
waters, the waters of its rivers and streams,
for irrigation, power and all other useful
purposes, the reclamation and irrigation of
its arid, semi-arid and other lands needing
irrigation, the reclamation and drainage of
its overflowed lands, and other lands needing
drainage, the conservation and development of
its forests, water and hydro-electric power,
the navigation of its inland and coastal
P. 6717
Honorable John Whitmire - Page 2 (JM-1259)
waters, and the preservation and conservation
of all such natural resources of the State
are each and all hereby declared public
rights and duties; and the Legislature shall
pass all such laws as may be appropriate
thereto.
Subsection (c) of the conservation amendment provides for
taxing power and the power to incur debt. Subsection (c)
reads as follows:
(c) The Legislature shall authorize all
such indebtedness as may be necessary to
provide all improvements and the maintenance
thereof requisite to the achievement of the
purposes of this amendment, and all such
indebtedness may be evidenced by bonds of
such conservation and reclamation districts,
to be issued under such regulations as any
[may] be prescribed by law and shall also,
authorize the levy and collection within such
districts of all such taxes, equitably
distributed, as may be necessary for the
payment of the interest and the creation of a
sinking fund for the payment of such bonds;
and also for the maintenance of such
districts and improvements, and such in-
debtedness shall be a lien upon the property
assessed for the payment thereof: provided
the Legislature shall not authorize the
issuance of any bonds or provide for any in-
debtedness against any reclamation district
unless such proposition shall first be
submitted to the qualified property tax-
paying voters of such district and the
proposition adopted.
This office recently held that "a municipal utility
district, operating under chapter 54 of the Texas Water Code
may not use taxes to purchase real property for the
independent purpose of having it used as a public park and
developed recreational area. . . .*I Attorney General
Opinion JW-1173 (1990). The opinion noted, however, that
the "provision of recreational facilities may be considered
a proper secondary activity for a district if furnishing
them promotes a constitutional purpose." Id. See also
Attorney General Opinion MW-313 (1981). Attorney General
Opinion JW-1173 did not reach the issue of whether a munici-
pal utility district could use non-tax funds to provide
P. 6718
Honorable John Whitmire - Page 3 (JM-1259)
parks. We note, in this respect, that the first sentence of
the summary of JM-1173 may be misleading. That sentence
reads:
. .
A municipal utility district operating under
chapter 54 of the Texas Water Code may not
purchase real property for the independent
purpose of having itused as a public park.
However, a careful reading of the text of JM-1173 makes it
clear that its holding is confined to the use of tax monies.
In peason v, Orana Countv Water Control and I D
sf. No. I, 244 z.W.2d 981 (Tex. 1952) the &$~~~~
Court enjoined a district subject to the' conservation
amendment from issuing its bonds for the purpose of acguir-
ing fire-fighting equipment even though an express statutory
authorization for the acquisition of fire-fighting eguip-
ment was then in effect. At the time the Deason case was
decided, article XVI, section 59, contained no mention of
fire-fighting, though in 1978 it was amended, by the addi-
tion of subsection (f), t o specifically provide that dis-
tricts may engage in fire-fighting activities.1 The Deason
decision states, "The Legislature can only grant the
district such powers and rights as come within the contem-~
plation or provisions of the articles of the Constitution
herein discussed," and that "the Legislature is without
power to add to or withdraw from the circumstances and
purposes specified" in the constitution. Deason, at 984.
In a brief submitted for our consideration in preparing
this opinion2 it is suggested that the holding in Deason is
of questionable precedential value because it fails to
consider the established principle that a state constitu-
tion, unlike the federal constitution, is in no sense a
grant of power, but operates solely as a limitation of
power, and that, therefore, an enactment of the legislature
is constitutional Unless expressly or implicitly prohibited
1. Tex. Const. art. VXI, S 59(f), adopted Nov. 7,
1978, proposed by H.J.R. No. 42, S 2, Acts 1977, 65th Leg.,
at 3374.
2. Brief of Hooper 8 Haag, Attorneys at Law, Austin,
Texas, submitted on behalf of three municipal utility
districts.
P. 6719
Honorable John Whitmire - Page 4 (JM-1259)
.
by a specific provision of the state or federal constitu-
tion. &s.& m, -herd v. San Jacinto Junior Colleae
District, 363 S.W.2d 742 (Tex. 1962). It is averred that
this line of argument was not briefed to the court consider-
ing the peason case.
Whether or not it was argued to the Supreme Court in
geason that the state constitution limits rather than grants
legislative power, we think it difficult to suppose that the
Supreme Court at that time was unaware of one of the most
fundamental doctrines of constitutional law, or that the
court failed to consider such a fundamental doctrine because
it was not briefed. The principle that the legislature may
exercise any power not denied to it by the state constitu-
tion or the federal constitution is a venerable one, and
hardly a novel concept even forty years ago. &.g Dav Land &
Cattle Co. v. Stak 4 S.W. 865, 874 (Tex. 1887). Less than
four years before ihe Deason decision the Supreme Court
restated this rule in Duncan V. Gabler 215 S.W.2d 155, 158
(Tex. 1948). A majority of the just&s sitting at the time
of Duncan . Gablm were also sitting at the time of the
Deason de&ion.
We think it more plausible that the court in peason,
without explicitly so stating, was merely construing the
language of the conservation amendment as limiting language
despite the fact that it is drafted as though it were a
grant of authority. Accord Brooks, Countv and Snecial
District Law, 36 Texas Practice 5 46.5 (West, 1989). The
court cited as its rationale the principle that the funda-
mental purpose in construing a constitutional provision is
to ascertain and give effect to the intent of the framers
of the constitution and of the people who adopted it.
Deason , suvra, at 984. Accordingly, it appears the Deason
court found that the intent of the people in enacting the
conservation amendment was to strictly limit the purposes
for which they might be made to incur debt.
There is language in Deason to suggest that the legis-
lature may never grant to a conservation and reclamation
district a power not in furtherance of a purpose enumerated
in the constitution (see quoted language, m). However,
given the context of the narrow question before the court in
Deason, A, the authority of a district to issue its
bonds, we think it a more reasonable reading of the court's
teaching that the legislature may only grant to a district
the authority to tax and incur indebtedness as specified
by section 59(c) of article XVI when such authority will
be used in furtherance of a constitutionally enumerated
P. 6720
Honorable John Whitmire - Page 5 (JM-1259)
purpose. Subsection (c) makes it clear that taxes may be
authorized for two purposes: (1) to repay bonded indebted-
ness, and (2) for the maintenance of a district and its
. .
improvements. As both the power to incur debt and the power
to tax are prescribed by subsection (c), we think it logical
that the reasoning of the Peason decision extend to the
purposes for which a district may expend tax revenues as
well as to the purposes for which it may incur debt. At any
rate, there is nothing in the language of subsection (c) to
suggest that the maintenance tax may be used to acquire
property. Accordingly, we reaffirm the holding of Attorney
General Opinion JM-1173.
Under the analysis of the Qeason decision presented
above, the legislature may grant to conservation and recla-
mation districts duties and powers independent of those
enumerated in the conservation amendment, so long as such
grant of authority is not inconsistent with the constitu-
tionally imposed limits on the authority of such districts
to tax or incur debt. When the legislature grants a dis-
trict authority not subject to a constitutional limitation,
such authority need not, under this analysis of the Deason
decision, be required to be exercised in furtherance of a
constitutionally enumerated purpose. This reading of Deason
is in accord ~with holdings of the Texas Supreme Court that
the legislature is empowered to establish any form of
special district unless limited by the constitution. See,
e.a., &RR&&, suura, at 743; Davis v. Lubbock, 326 S.W.2d
699, 710 (Tex. 1959); Texas Turnnrke Auth. v. Shennerd, 279
S.W.2d 302, 304 (Tex. 1955). As the legislature could
statutorily create a special district to provide park and
recreational facilities, we think it anomalous to find that
such authority could not be statutorily granted to a recla-
mation and conservation district so long as the statutory
grant of authority does not conflict with the constitutional
limitations on the authority of such districts to tax and
issue debt.
In Harris COUntV Water Control & ImDrovement Dist, No.
110 v. exas Water Riahts C mm'n, 593 S.W.2d 852 (Tex. Civ.
ADD. - Austin 1980, no writ?. the court considered whether a
municipal utility district operating under chapter 54 of the
Water Code has authority to acquire certain recreational
facilities, specifically, a community center, three swimming
pools, four tennis courts, and a clubhouse. No reference is
made in the court's decision of the method by which the
facilities were to be financed or of the source of funds
intended to be used for the purpose. The court found that
the proposed facilities did not further a purpose of either
P. 6721
Honorable John Whitmire - Page 6 (JM-1259)
section 54.012 of the Water Code or article XVI, section 59,
of the Texas Constitution and, consequently, the facilities
could not be acquired by the district. The court in Harris
Countv W.C.I.D. No. 110 specifically considered the argu- ..
ment that the proposed 'facilities were proper because they
were not expressly or implicitly prohibited by the constitu-
tion. In this regard, the court stated
In the case ,at bar the sole question is
whether the proposed recreational facilities
are permissible pursuant to acts of the
Legislature, and not whether an act of the
Legislature is valid.
Za, at 855. The holding in Harris Countv W.C.I.D. No. 110
is, thus, based on the statutory purposes of municipal
utility districts as set forth in section 54.012 of the
Water Code. Section 54.012 closely tracks the language of
article XVI, section 59 (a), but states additional, albeit
closely related, purposes. Article XVI, section 59(a),
states no purposes which are not stated in section 54.012,
though article XVI, section 59(f), provides that conserva-
tion and reclamation districts may engage in fire-fighting
activities. Had the facilities at issue in Harris County
W.C.I.D. N 0. Q been fire-fighting facilities instead of
recreational facilities, the authority for the acquisition
for such facilities could have been found in the constitu-
tion, even though fire-fighting is not enumerated as a
purpose in section 54.012 of the Water Code. This is
mentioned to demonstrate that the court's mention of article
XVI, section 59, does not necessarily indicate that the
court was basing its opinion on constitutional language,
but, rather, shows that the court looked both to statutory
and constitutional language in searching for authority for a
district to acquire recreational facilities independent of
the district's conservation function.
Since -is Countv W.C.I.D. No. 110 was decided, the
legislature has amended chapter 54 of the Water Code by,
among other things, adding subchapter 1.3 Acts 1985, 69th
Leg., ch. 100, 5 1. Subchapter I gives statutory authoriza-
tion to a municipal utility district to develop and maintain
recreational facilities. Water Code 55 54.771(b) and
54.773.
3. Water Code 55 54.771 through 54.775, inclusive.
P. 6722
Honorable John Whitmire - Page 7 (JM-1259)
.
The Texas Water Code specifically provides for the
issuance of revenue notes by a municipal utility district.
Such notes may be issued for any corporate purpose and must
be paid "solely from the revenues derived from the ownership
of all or any designated part of the district's works,
plant, improvements, facilities, or equipment after
deduction of the reasonable cost of maintaining and
operating the facilities." Water Code 55 54.302, 54.303.
The notes may not constitute a charge on the property of the
district or the taxes levied or collected by the district.
Id. Revenue notes issued pursuant to section 54.303 would
not constitute an indebtedness within the meaning of article
WI, section 59(c) of the Texas Constitution. mower
Colorado River Auth. v. McGraw, 83 S.W.2d 629, 633 (Tex.
1935).
Section 54.774 of the Water Code provides as follows:
(a) A district may not issue bonds to pay
for the development and maintenance of re-
creational facilities.
(b) Except as provided in Subsection (a)
of this section, a district may acquire
recreational facilities and obtain funds to
develop and maintain them in the same manner
as authorized elsewhere in this code for the
acquisition, development, and maintenance of
other facilities of the district. Without
limiting the foregoing, a district may charge
fees directly to the users of recreational
facilities to pay for all or part of the cost
of their development and maintenance.
Section 54.772 of the Water Code provides as follows:
As used in this subchapter:
(1) 'Recreational facilities' means parks
and recreational equipment and facilities.
(2) 'Develop and maintain' means to
acquire/own, develop, construct, improve,
manage, maintain, and operate.
We have established that the legislature may provide
statutory purposes and powers for districts created under
section 59 of article XVI of the constitution so long as
those purposes and powers do not conflict with the
P. 6723
Honorable John Whitmire - Page 8 (JM-1259)
.
constitutional limitations on the authority of such dis-
tricts to tax and issue debt. We have further established
that the legislature has provided statutory authority for
municipal utility districts to develop and maintain parks
and recreational facilities, and that the issuance of
revenue notes pursuant to section 54.303 of the Water Code
is not constitutionally restricted. The remaining question
is whether revenue notes issued under section 54.303 are
Hbondsn within the meaning of section 54.774(a) of the Water
Code. nBonds10 is not a defined term for purposes of chapter
54 of the Water Code.
The Code Construction Act provides, in part, that:
(a) Words and phrases shall be read in
context and construed according to the rules
of grammar and common usage.
(b) Words and phrases that have acquired
a technical or particular meaning, whether by
legislative definition or otherwise, shall be
construed accordingly.
In ordinary usage, a bond is a-debt security evidencing
a promise to"pay the bondholder. See. e.a,, Black's Law
pictionarv pp. 161-164 (5th ed. 1979). The term. as
ordinarily used, and as in fact used in many statutes, is
certainly broad enough to encompass the kind of security
envisioned by section 54.303 of the Water Code. For
instance, the Bond Procedures Act of 1981 defines "bonds*' to
include
all bonds, certificates, notes, book-entry
obligations, and other obligations authorized
to be issued by any issuer by any statute,
city home-rule charter, or the Texas Consti-
tution.
V.T.C.S. art. 717k-6, 5 l(b).
However, it is also a rule of statutory construction
that when a word or phrase is used in different parts of a
statute, a clear meaning appearing in one instance will be
attached to it elsewhere. Boris k Boriack, 541 S.W.2d
237, 240 (Tex. Civ. App. - 'C&p:; Christi 1976, writ
dism'd); see also, 67 Tex. Jur. 3d nStatutesO' 5 108, and
authorities cited therein. Though not defined in chapter 54
of the Water Code, the term "bondtl is used extensively in
subchapters E, F, and G of chapter 54. As the term is used
in those subchapters, a bond is clearly distinguishable from
P. 6724
Honorable John Whitmire - Page 9 (JM-1259)
a revenue note. For example, a bond may be repaid from ad
valorem taxes, district revenues from the ownership or
operation of its property, or from a combination of these
sources. Water Code 9 54.503. Additionally a bond may be
secured by a mortgage lien on all or part of the property
of the district. Ig, 5 54.504. Bonds may have maturities
of up to forty years from their date of issue, and bear
interest at any rate permitted by law. Id. S 54.502.
However, revenue notes may not have a maturity of more than
20 years from their date of issue, may bear no more than ten
per cent interest per year, may not be payable from tax
revenues of the district's property, and may not be secured
by the property or taxes of the district. Id. 5 54.303;
* Sav.
x Texap' *
666 S.W.2d 203 (Tex. Civ. APP- - Houston
[14th Dist.] '1983, no writ). The term "bondstl '
consistently used throughout chapter 54 to refer to 'i
securitv not subject to the restrictions applicable to
revenue-notes. -
Section 54.774 was added to the Water Code by Senate
Bill 618 (Acts 1985, 69th Leg., ch. 100, 5 1). As
originally introduced, Senate Bill 618 provided, under
certain circumstances, for the issuance of a district's
bonds for recreational facilities. Senate Bill 618 was
referred to the Senate Committee_ _on Natural Resources.
. . On
March 14, 1985, it was reportea aaversely, witn a favorable
committee substitute. The committee substitute contains
section 54.774 in the form eventually enacted into law. The
bill analysis of the committee substitute for Senate Bill
618 states:
The right of MUDS to own, operate, and
finance parks and recreational facilities is
being questioned by the Department of Water
Resources. The department concluded that it
is probable that affluent districts would be
able to take on the additional burden of
providing recreational facilities without
serious problems. However, with respect to
newly formed districts without a sound
financial base, and other districts providing
recreational facilities could be very severe
and probably in many instances ruinous.
Also, they suggest that the opportunity
exists for the abuse of the district's taxing
power by developers who wish to construct
recreational facilities as a means to attract
home buyers within a new subdivision with the
intention of selling these facilities to a
P. 6725
Honorable John Whitmire - Page 10 (JM-1259)
district as quickly as possible so that they
can be taken over and supported through tax
revenues.
Additionally, the Department contended
that SB 618 may be subject to a constitution-
al challenge. Texas. Constitution, Article
XVI, Section 59, which names all functions of
these districts, does not mention the word
'recreation' and such a function must be
implied, if it does exist. There are legal
arguments pro and con but the leading case in
this field, peason vs. Oranae Countv Water
> d 0.
(1952; held that districts lacked the
constiiutional authorization: either -
pressed or implied, to provide firefightT:g
equipment, although an express statutory
authorization for such firefighting equipment
was then in effect. It is quite possible
that under the precedent of the Deason case,
legislation authorizing districts to provide
recreational facilities and equipment could
be declared unconstitutional. In this case,
the Department would close down existing
parks and recreational facilities.
The bill analysis of the committee substitute shows
that the legislature was mindful of the constitutional
difficulties presented by the Deason case as well as the
problems inherent in permitting a district's tax base to be
encumbered by recreational facilities which might be of more
benefit to a developer's short-term marketing strategy than
to the long-term fiscal health of the district. The prohi-
bition found in subsection (a) of section 54.774 against
the issuance of bonds to fund recreational facilities seems
aimed at avoiding constitutional restrictions on the issu-
ance of debt and untoward encumbrances on a district. As
revenue notes do not permit encumbering either the taxes or
the property of the district, and as their use is not
constitutionally restricted, it appears that such a funding
mechanism may well have been within the contemplation of the
legislature in enacting subsection (b) of section 54.774.
Accordingly, we believe that the term *'bonds" as used
in section 54.774 of the Water Code is consistent in meaning
with the use of the term elsewhere in chapter 54, and does
not include "revenue notes' as provided for by section
54.303. Your question is answered in the affirmative: it
P- 6726
Honorable John Whitmire - Page 11 (JM-1259)
is permissible for a municipal utility district created
pursuant to article XVI, section 59, of the Texas Constitu-
tion and operating under chapter 54 of the Texas Water Code,
to use revenue notes to finance the acquisition of park land
and park facilities.
SUMMARY
It is permissible for a municipal utility
district created pursuant to article XVI,
section 59, of the Texas Constitution and
operating under chapter 54 of the Texas Water
Code, to use revenue notes to finance the
acquisition of park land and park facilities.
Very
truly Y ,
J JIM
h A;,.
MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
Lou MC-Y
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
P. 6727 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130223/ | November 14, 1990
Honorable Bill M. Reimer Opinion NO. JM-1246
District Attorney
Coma1 County, Texas Re: Authority of a dietrtct
150 N. Seguin, Suite 307 judge to appoint a dietrrzt
New Braunfele, Texas 78130 attorney pro ternunder
cle 2.07 of the Code of
Criminal Procedure where
there is an assistant diet-
rict attorney in place
(RQ-2141)
Dear Mr. Reimer:
you have requested our opinion regarding the authority
of a district judge to appoint a district attorney "pro
tern,"pursuant to article 2.07 of the Code of Criminal
Procedure. The statute provides:
(a) Whenever an attorney for the state is
disqualified to act in any case or proceeding,
is absent from the county or district, or is
otherwise unable to perform the duties of his
office, or in any instance where there is no
attorney for the state, the judge of the court
in which he represents the state may appoint
any competent attorney to perform the duties
of the office during the absence or dieguali-
fication of the attorney for the state.
(b) Except as otherwise provided by this
subsection, if the appointed attorney is also
an attorney for the state, the duties of the
appointed office are additional duties of his
present office, and he is not entitled to
additional compensation. Nothing herein shall
prevent a commissioners court of a county from
contracting with another commissioners court
to pay expenses and reimburse compensation
paid by a county to an attorney for the state
who is appointed to perform additional duties.
(b-l) Au attorney for the state who is not
disqualified to act may request the court to
p. 6641
.
Honorable Bill M. Reimer - Page 2 (J&1246)
permit him to recuee himself in a case for
good cause and upon approval by the court is
disqualified.
(c) If the appointed attorney is not an
attorney for the state, he is qualified to
perform the duties of the office for the
period of absence or disqualification of the
attorney for the state on filing an oath with
the clerk of the court. He shall receive
compensation in the same amount and manner as
an attorney appointed to represent an indigent
person.
(d) In this article, "attorney for the
state" means a county attorney, a district
attorney, or a criminal district attorney.
You indicate that the elected district attorney "has
been called to active duty because of the Middle East
eituation."
You first ask whether the term "attorney for the state"
as defined in section (d) includes an assistant district
attorney. By its very terms, the statute does not apply to
anyone except ea county attorney, a district attorney, or a
criminal district attorney." In Attorney General Opinion
BB-80 (1979), this office declared:
We do not believe an, assistant district
attorney is an attorney for the state within
the meaning of section 2.07. Other statutes
distinguish between the district attorney and
his assistants. The district attorney is an
elected official. . . . The assistant die-
trict attorney is appointed by and subject to
removal by the district attorney. . . . The
definition of "attorney for the state" applies
to all of article 2.07 of the Code of Criminal
Procedure. If "attorney for the state"
included assistants, then article 2.07 would
permit the court to appoint an assistant
district attorney pro tern. The Court of
Criminal Appeals has, however, stated that the
predecessor of article 2.07 did not authorize
the judge to appoint an assistant district
attorney. u 75 S.W. 305 (Tex.
Grim. App. 1903). Conetrui~g article 2.07 to
authorize the appointment of an assistant
district attorney would also bring it into
p. 6642
Honorable Bill M. Reimer - Page 3 '(JM-1246)
conflict with article 332a, V.T.C.S., which
permits the prosecuting attorney to choose his
own aeeietante.
We agree with this analysis. In our opinion, "attorney for
the state" as used in section (d) does not include an
assistant district attorney.
You next ask whether article 2.07 precludes a judge
from making an appointment thereunder if "an assistant
district attorney is in place." Since, as ve have indicat-
ed, an assistant district attorney is not an "attorney for
the state" within the meaning of the statute, a district
judge is permitted by the terms of section (a) to make ;zz
requisite appointment in the situation you pose.
elected district attorney*6 absence from the country neces-
sarily means that that official "ia absent from the county
or di8trict.e The presence of an assistant district attor-
ney makes no difference for purposes of article 2.07.
you also ask about the appointive power of a district
judge under article 2.07 as it relates to the Governor's
authority to appoint a district attorney. Article 4,
section 12, of the Texas Constitution grants to the Governor
the power to fill a vacancv in the office of district
attorney. Article 2.07 does not address the situation of a
vacancy. It refers only to those instances in which a
district attorney is temporarily unable to perform the
duties of his office. Were it to be construed otherwise,
article 2.07 would clearly be an unconstitutional usurpation
of the Governor's authority to fill vacancies under article
4, section 12.
SUMMARY
A district judge is authorized to appoint a
district attorney pro ternpursuant to article
2.07 of the Code of Criminal Procedure, even
though there is an assistant district attorney
in place.
JIM MATTOX
Attorney General of Texas
RARYRRLLRR
First Assistant Attorney General
p. 6643
Honorable Bill M. Reinter - Page 4 (~~-1246)
Lou MCCREARY
Executive Assistant Attorney General
JUDGEZOLLIESTBAKLEY
Special Aeeietant Attorney General
REHEA HICXS
Special Aeeietant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Aeeietant Attorney General
p. 6644 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144027/ | OFFICE OF THE AlTORNEY GENERAL OF TEXAS
AUSTIN
Q-O.NAM4
--
Honorable Thee. R. Chandler
County Attorney
Roberteon Count9
Freaklin, Texas
This will aoknowled
Ma9 14, 1940, ta which 90
given oireumstanoes, the
Preolnot No. I, Robertaon
hot* prerentee are1
nt in thr City
9, ia p8ralenont.
s nor parfomed
removil ln ballah
s hanerto8dwithin
ahild who ia in A. k
te in hll*. It appeal-6
on of tha Justloo ham been
tend to return, 9et fall to reeign. HoBwec, no
one has rtaoeivebword Blrsat frm Mr. Paters to the
8frO0t that he will sot rettarn. The oitiaen#hig in
,, __.
IF; 739 a’..
IIoncrebleThea. R. Chandler, Page 2
that preoinot are demndlng that acmeone be ap-
points4 to such Rosition a8 such absenoe has
causedthem.undue embarressment.*
Artlola ES77 of the Rcviaad Civil Stetutee pro-
Vihenuver there Is a vaoanog or the justloe
in any preolnot shall be absent, or unable or un-
willing to psrform the butien of his ofiioe the
nearest justlee in the aounty ma9 taaporariij per-
form the duties of the oftfos.w
The above etatute Is oarefully anal9ss4 by Justioe
Fly of the San Antonio Court of Civil App8al0 in the oaae of
CraMord vs. Saunders, et al, &9 t3W102. The oourt hen held
that the absenoe ot the Justioe of the Peaoe from his prooinot
414 not, within Itself, oreats a vaoanoy 80 as to permit th6
appointment of a Justfoe of the Peaoe. The languaugeof ,the
court is:
=Wo are OS the opinion that the oomalmsloaer8~
aourt is clothed with authority to appoint a jus-
tice ,or the peaoe on19 where a raomo9 exists in
the ofriae. It lx olear, from the language of
Artiole 1657 (now ktiole 8377 1, that a dirtlaotion
ir dram between a taaanoy and an abeenar, en ln-
ebllity or an unwlllln~nes~ 80 perform the duties
of the offioe. This is olmr an4 g*lpable from a
reading of the utdiute.. . .tha vaoanoy aoUl4 bs flll-
ed b9 the oourt. %%a abwmoa, inability, or WI-'
xillin&nsss d,onot constitute or pro&me a Vacane9
under our statutes.. . . The oommis8ioners1 oourt of
Frio tounty had no suthorit9 to am?oint I ustfoe
ol the peeos in preolnat ho. 4, bemuse 0x1 Jy em-
powem in oaee OS a vaoanay, and the abaenoe of
the inaumbent did not oonatitute a vaoano9....,
The reoord rhows that no vaoaooy existed in pre-
cinct No. 4, and that the ,Iuatlorwan simply ab-
sent,--r0r how long, not appsaring. There wns no
vacanog to be filled by the oommlseloner~* oourt,
and it woula seem thst it is evident that two
diiferent persons omnot at the seme time be in
actual oaoupstion snd exercrkseOS an otiics Sor
whloh one fnaumbent on19 Is provided by law....
&
;. ‘~.
--- 740
Eonorable Thos. R. ChanBler, Page 3
There is no statute in Teraa deolarlng that the
office of justloe of the peace shall peooae
vaoant by ree8on of the absenoe o? the inoumbent,
and we err of the opinion no vaoanog existed in
the offioe,...."
Beotlon 14, Article 16 of the Constitution of Texas
*All 01~11 ofiloerr shall reside within the
Stats; and all dlstrlot or oounty ofrioars within
their districts or countle8, and shall keep their
offloee et suoh plaoes a8 may be require4 bg law;
end failure to oomply with this oondltlon shall
vacate the offloe 80 held.*
The above aeotlon requires dlstrlot and oounty offi-
aeri 6o re824e within their dlstrlots or counties. An otfloe
18 veoitsd by non-om~pllanoewith thla requirement, an4 when
euoh vaoanor exletr jn any offlce nemad in Artlale e965, Lh is
the duty of the ooanuiscrioners*aourt to fill it. 9uctloe8,of
the F'eaooere included in Art&ale e3fi5. Ehllnger ve. Rankin,
ec SW’e40.
The feats In the Ehlinger ease were these: Rankln
war the duly eleoted county olerk of h9eSe Count9 and tem-
orarflp movsU hie resldenoe to Austin, Travis County, Texes.
4he oommi8mioners* oourt of Fapette County tleolarrdthe oftiae
iaoant and appointed EhlingeP to the oifiae. Rankin there-
after brought thi8 rult to rartrailnEhllnger from interferrlng
with him in the performmoe of the duties of the offloe. dud&
ment was rendered for plaintlfi an4 reversed by the oourt of
oivil appeal& We deem It imperative to here quote from the
deolslon et length beaause we think it determinative of the
question before ~8. The oourt said!
"There wao no error In the ruling of the oourt
In 8o far a8 it held that lnjunotlon was 8 proper
remedy in oases of thlr aheraoter, end the principal
question that we deal with is the a&ion of the oourt
in sustaining the demurrer to appellant*8enswar,
setting up title to the ofl'loeby virtue of the
appointment by the aommlssioner8* oourt. The appellee
oontends that the juflpent of the trial court tn mm-
tainlng the demurrer to the anIiw8rin this respect
neble Thee. H. Chundler,E'agS4
CS5 b8 3UStSiQ~a b:,lrirW3 of 6eOtiO5 84, art. 5,
of tha present oonstitutlon; and that the mm-
mleeionare* oourt hna no authority to dealer8 the
oifloi~or oounty olark veoent, end to appoint
eppellent %hllwer, baoauee the question Is one
judlolal lo oharaater, and the ac#naleelo~re court
18 not by lev rested with eny authcrlty Or jurie-
dlatioa to pass upon euah gueefione,but the ox-
olaelve ~url.Qlotlon5. oonferred upon the dle-
trlot oourt by virtue of the eeetion of the eon-
8tltUtIan $d3t mentioned. Thte eeatlon provldre
that the dietriot aourte, or the judges thereat,
euty remwe certain ofSiaer8 for otf5e5af mIssOn-
&at, hebltuel drunkenz~eee, and for other omeee,
eta. The power of the dletrlot oourt under this
provieior~of the conatltutloaundoubtedly exist.
to remove ocrtain OfflcSre frarntheir offioee,
e veoana ,ea ointment
o,rnome 8U
grgv TL%~hreq%ee thet if a vaaeE$%ete
office of oounty 6l.rk;tiw oomm5ea5or1we'
oourt shall appoint edge suitable person to tie
Lt, sad about tlibpower Of the oowt in this m-
epaotthem is no qusstfon. Bection 14 art. 16,
ot the present oonetitutlon roads as to i lous:
**All~oir51 ofticere shell reside dthln the state;
end all dletrlot or eouaty off5oere wlthfn their
dletr5ote or oountiss, md shell Leap thellrof-
floes et eueh plaoee ee my be required br lawi
end frilwe to aomplp ~5th this aonditlcpn shall
tacrateth* or?lae 80 held.* Tble provielo~ of the
aonetltutioa, in so-far es it roletee td the plaoe
o? resideas* of the several etete,~4istrlet, ma
county officers, ie eel?-eaeating, end requires
no legimlatfre action to put It ltio.?orae and
&feat. The prOVl810n of tbe~oonet5tutl0n 18 ox-
press in deolering tlmt oounty offi#re shell n-
ride althin their counties. This.pmavielon itlQent-
ly 5~~58 that the county aentloaed fe the aaunt~
in whioh the orfiaer was elected. Then ~oUwe
tb8 dealaretion, In efteat, that thb railups to
I. ._..
742
Ronorablo Thou. R, Chandler, Fag0 6
so reeida in said oountf shall vaoate the oiiiee.
The oonetltutlon 18 ,expraesupon thla point. The
oonetltutlon 18 orprees upon this point. xt aa-
aleree, In efteot, that the iallure to acmpl) with
ftetsm8 rfth rararenos to rasidenoe will bring
about a vaoaaay in the offiae. If an oftloer ra-
movee from the county, and latabllahel a reeidenoe
elsewhere, this is a taat that, by reason of the
provlsion of ths oonetltutloa quoted, vaoetee the
afflae to whloh he wee eleoted end to whloh ho hen
to aa..offla*,or to rtmtovea logally quallf50d otti-
06r $‘+mmhis orrloe , Sor the jurledlotloa 5a this
mattar Uee within theiaxaluefv~ ooaalzenoo m the
4letr5ot oour%; but if, es a feat. i reoinoy door
exist. then lb beomee tha duty or tha oQBal8sloa-
we’ aourt to fill it .
*The anewer in this aaee that sets up the
jument of’@e aommleelonere* Court deolerl~ that
the appellee had vaaated his oifloe preeentr no
valia or IselL defenee, as that court ha no jurie-
ulotlon to adjudioato this quastlon, exo6pt in so
far as lt may have been nsaeeearp to go into this
‘ia& In order for the oourt to sstieiy itself that
a ol.roumetancehad arisen that author&d or -qdr-
0a it to appoint an offlaer to an 0rria0 they were
rsqulrsd to fill, it a vaoaney la fast existed.
But the anmwer in.averrl~ the fast that tha lpgellee
ha4 removed from the county of Fayette, and had
thmeby vaortsd his orfloe, and thet the oourt, upon
that feat, h5a legally appointed the appellant
Xhllngsr, aad that he had duly qualified as euah
apppaintee,prssrnted an issue of raat, if trua, whlah
would have euthorlieedthe aourt to appoint hia to
i
.i _-.
743.
Honorable Than. 2. Chandler, Page 6
the ofiiae, and wkloh would authorize Ci3:to ro-
teln en4 hold It s,nalns% the aleinusof appollee.
The eotioo cl tha o~imleslona~s* oourt in appoint-
ing the tppellant is tc bs determined by the then
exieting feats; snd If they show that the rrppellee
had perrznently remwod ftvm the county, then a
taoamy retmilted,end the oov t had authority to
1113, it by ths appointment of ChlinY~r. me answer
in tliisrespect presented an issue of fast, end
the question to be datemined iron.theea avemente
la, had the hypellee re?r.oved from the oountp? If
this W&B true, a vaoanop in the orflce resulted by
virtue or the eeotion of the aonctitution dlsoum-
ad, and it bscaa;ethe duty of the oce.mIe6Ionfms~
OGUrt t0 iill the vaoanop. The qwmtloa of *oaBoy,
in the main, is one of raot, a8 arie@lr under”%he
provitslan of the aonatitutlon; end, it thlr,exlat8
aa s ,faot, hppellee, RmkSn, ahoW no right to the
ofrioe.* (Underrooring our8 I
ft 18 apparent from a omefpl conoidention of the
above ca8e that the ooorniMioner8f oourt le veated with es-
oluaive jurlod$otion to deetire a vaornoy in the office hers
Involved, if a~reoanoy doer ln,faot exi8t.. This departsent
Is aoeordlngl~ without au%horlty to patm upon t& t6Ot *it&a-
tlon befols,ue and reipe%tfully imggerta ,that pour ocmlaaion-
era* acurb lnvestle;rrt~ the prsaent abmbnoe or the juatloa or
the peaae rfth the end in view ef detexminln% wlmthar luuh
absence, In the li@t of ~11 the attending ifiot(8 and cirotnn-
sitames, i* of mob permmenag a~)to constitute a vaomoy in
fact. Having;done 60, tho oourt, la the extmloe of ita
Qlsoretlon, will then be 6uthoFimeB to paso mob order aa It
deem neoeesary and 6drisabXe in tha pmalrer.
Very truly youra | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144028/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
Bonorable Varvln Hall
Fire Insuranoo Commleaionsr
Board 0r Inruranoe CommIs~loner8
Austin, Texas
Dear Sir:
This wIl1 aoknowl
May 9, 1940, in nhloh you 6
l&e upon #OVWl que0t10nr t
esrential to here est o
understanding of the fa
daltlonr are
aa no authoritf
prevent hasardous
uoh Inapeotions Is soli
been oaued upon, iB
sx-oSfIoIo Statr Fire
as State Fire Earshal, hate author-
the eleotrloal wiring In houlrrs under
f your anmer III in the afflrmetirr, do
I, as State Fire ?:arshal, have the authority to
condamn suoh wiring If same Is found unrafe and
oaue the removal, or oorreotlon, thereof?
"(5) Can I prohibit the power oompanlas from
furnishing eleotriolty to such unsafe rirlng?
. -
734
Honorable i’arvln IIall, Pag4 g
“(4) If your an8w.r to tha foregoing qu44tionr
are In the afflrmatlro, my I appoint a dsputy
fully quallfl4U, to eot in my plaoe and stead In
making those InepootIon8t
“(8) If your amwsr to proporltlon numbor 4
18 in the afflrnatlvo, do f have tha authority to
allow the deputy reasonable aolapenaatlon for tsar-
Vi008 l-OndOred in makin6 ths inirpOOtiOl28’)
“(6) Do I ha~4 the authority to aase84 and
001140t, from thr prop4rtl owner or aontnotor, a
reasonable fee for making ruoh Inapootlonr?
“(I) If I do hare the authority to a84488 and
oolleat suoh fe4, will It bs legal to allow the
deputy to oollsot and retain for hi8 mn ~44 4uoh
foes as oompsnsatlon for his aorvIoo8?R
ArtiOl4 4897 of the R41ised CIvIl~Statute4 of Toxa4,
1925, tloalr with the authority and duty of th4 Stat4 Flro Ear-
8hAl. It 181
RThs Stat4 Fir4 Farehal I4 heraby authorlaed
to snter at any fine any building8 or premIm8
where fire oaourred or Is In pro&rem, or any
plaoo oontIguou8 thereto, for the purpoar of la-
reetigat Ing the oau84, origin ana olr4um8tau448
or such fire. The Stat4 Flro Marshal, upon oom-
plaint of any poraon, shall, at all rsaaouable
hours; for ths purporo of erazalnatlon, lntor Into
and upon all building8 and prem18eo within thlr
State, and It #hall br hi4 duty to lnto r upon u&d
make.or oau8o to bs ontored upon and -do, at q
tins, a thorough oramlnatlon of meroantlle, menu-
faoturing and pub110 buildinga, and all plaors of
pub110 amuasmnt or whers pub110 gathering8 am
hold, together wi th the preEI84s belonging thereto.
Khener4r ho shall find .anp building or other strua-
turs which for want of repair or by reason, of age
or dllapidatsd condition, or whloh for any oaueo
is liable to fire, an6 whloh Is 80 situate& a8 to
sndangor other building4 or property, or ir 40
oooupiod that fir4 would endanger person4 or pro-
perty thoreln, and whenever he shall Slnd.an Im- .
proper or dangerous arrangcmmnt of atov48, ranger,
furnaoe8 or other heating appllano48 of any kind
whateoavsr, inoludlng ohlmnepr, fluea and pipa
with yhloh the 8am may be ‘oonnootod, or dan@roue
- . 735
Honorable ianin Hall, Page 3
arrangement Or lighting lyBta8 Or dOtio48, or
daqgorow storag4 of 4xp~o8iVO8, oompouad8, potro-
loum, garolino, k8rOBOn4, dangerous ohemioalr,
vogotable produoti, ashoe, ocrabu#tible, lnfle8!mable
and rerure matorialr, or other rondltlonr which aax
be dangerour In ohanotrr, or liable to cau8e or
promoto rim, or oreate conditions dangerour to firemen
or oocupants, ho shall ardor the 8am4 to be nmwed
or remedied, and suoh ordrr shell be forthwith ooa-
plied with by the oooupant or ownrr of auoh buIldln(
or premirer, and ths Stat4 Flro Kar8hal is horobr
luthorlrrd, whrn necerrary, to apply to a aourt o?
oompetrnt jurirdiotion for the nooo88ary writs or
orairs to enforoe thr 9rorIsion8 0s fhI8 art1010
and in ruoh oa#e ho shall not be roquIr4d to give
bond."
Artlole 4882a, of the RevIre Civil Statutea,& Toxar,
as amendedby Aat8 OS 1987, 40th Loglrlatun,, pago 3ti, Chapter
eZ4, para, 8, prorider In part:
" . . ..The autler horetoforr plaoed upon )nd the
powers and privileges hsrrtofore exorolsod by the
Ststr ltlro Farehal ars now to bs plaosd upon and
lxrroleed and enjoyed by the Flro Incurrmoe &IUQ~~-
#loner. w
Roforrlng again to Artlole 4S97, rupra, fra whloh,
a8 4x 0rri0i0 firs marshal, you aaquln your power of inv48tQp
tlon, It appsars that your right8 and duties may be lla88IfIo4
Into three BUbdI+IBiOn# as r0iitm:
1. You are authorized "to ontor at anl tImo any build-
ing or premiers whors fire ooourr4a or 18 In progrorr, or uy
plaoe-oontIguou# thereto, for the purpose of lnrertlgatlng the
oauso, origin and oIraum8tano48 of 8uoh fire."
a. You shall *upon oomvlalnt 0s eny Demon . . . . at
all r4asonablo hour8 for the DUrDOIe of 4xamlnatIon. enter Into
and upon all buildings and pr~mlisr within thi8 Staio...."
(Vndereoorlng oura)
5. It IS your duty to ontsr into and upon all Wmemui-
tile manufaoturlng and pub110 buildIng8, and all plaool Of
publio aE!lU84S4Ut, or where pub110 gatherings are hold, together
with the pr4mIaee belonging thereto a for the purpo#s of 4xamlna-
tlon to detennlno ths oondltionr with rerpeot to firs hasardr.
Sk.36-
Honorable Marvin Rail, Page 4
Sumuksrlzlng the84
arbitrary 8UbdiVi8iO~8, it
8ppearr that you nay into and Upon th4 proporti48
outor
derorIbe4 In Seotlonr 1 and 3 theroof at will for luah In-
lpeOtiOB8 as you doom neoesaar~ and prOp4rj that a8 a Beo488-
ary prer8ptirIte to your right to enter Into and upon tho
proportirr mentIonod In 8ubdIileIon 8 herrof you must h#ve
a oomplalnt mad4 to you by 80344 94r8on as to th6 probable
no84 for an In#p4otIon.
Wobellero that ths prlvato rerldenoea involved
In the lnotant inquiry ?a11 within this seoond 8ubdIvI#Ioa.
QUlE3TIOl'J
190. I
Subjeot to th8 limitation hsrelnrbors dlaouaae4 we
ln#w8r your rlrrt questlon In the lfflrmativo.
QvJwrI0N NO. 11
Artlole 4891, supra, furthor provider that whenever
YOU W,...ahall find . . ..dangsrou# arrang4lnOnt or liehthg ryr-
tan8 or 44rloea.... Shall Order the 8fm4 r4Eiov~ or r48mdied
. . . . * The word *or* undersoored In the quotation hereinabove
lppo8ra to bo an error Of tho printOr aa the word *‘of” 18 U88d
In the original aot. Your BoOOn qurstion 18 an8wer4d in the
lfflrmatlve.
QVESTIONNO. III
Artlole 4097, eupra, rurther provIae8 that after you
bp’l8 found
a dangerour oonditlon and h4v4 ordsnd the #ame swm01-
ed or romsdiod "BUOh order ahall bo forthwith 00~11pliOd with bt
the oooupant or ownor of suoh building or p~mlmea, an&tho
Btato Fir4 Harabal IS hor4by authorlsed, when n40888ary. to
apply to a oourt or oompotont jurls4lotIon for the nooerawy
writ8 or order8 to enforoe the provi8ion# Of this sot....*
Without 9a88ix Upon the 8944ifiO qUO#tiOn Of whethor Or IlOt
th4 oompany undsrtaklng to furnlah powor #haul& be mado 4 partf
to th8 rult, it may be OffeOtIT8ly prohibIt8d SrCUBfurniBhIli&
luOh power by an Injunotlon dlrooted at the owner of th4 pn-
nIro# prohibiting him from pexmlttlng a oonnsotlon bsIng made
until the WLBaf4 oondition has boon mm4aied.
QvEsTIoNs NOS. IV AND v
Artlolo 4898 of the Revised Cl~ll Statute8 prwlder
In part8
"If ror any reason the State Fire Yarahal I#
737
Honorable Marvin Hall, Pago S
!
;
unable to mak8 ant nqulnd lnreatlgstlon in per,
80x1, ho aer dmrlgnate thm fin aer8hal of rwh
oit]r or town or 80~8 other oultable person to aot
ior hlmi and 8uOh peroon rhell have the 8am0 author-
ity l8 is hrreln glrrn the Stat8 Fire Marrhal with
rsrer8non to.th8 pertlouler matt8r to be int88tl-
@ied by him and rhell rooelre ruoh 0~1 lnntlon
for hi8 8on7jow am tho Btnto f~um~noo Ecaml88lon
meylllcm...."
Your fourth quo8tlon Is emwend in thr lr r lr ma tlr e,
Tour fifth qw8tlon 18 llk8rise enmnd Lo the
lrrlmmtlro rubjeot or eotw8e to lll llmltetlon8 oontelnra
in tha p6rdnent rtatut88 end the gOzmre1 ap roprletlon bu.
WOhave mead0 no lnve8tlgc4tlon or en? do not
GrnSTIORsNos. VI, Am Yxx
Artlolo 48(l'e, supra, authorize8 you to lm8e88 and
oolleot re68 end fix en808 rr0m one roqusstlng en lnrO*tlgation
or l r,in but l ill lp gent rreroh of the 8tatutor retoalm a tote1
laok or euthorlty v88tad in you to l 88688 en6 oolleot r008 end
lxpon888 tor th6 kind and ohareotor of lnv88tlgatlon whloh vm
era her8 oonrldrrlng. Haarlng no ruoh authority', it 1s lp p a r -
Ont that you oannot author180 mm8 lgent b do that rhloh rou
oonnot do. Tour quertlonr No8. 6 and 7 ere both enowered In
thr nO6atlro.
Your8 very truly | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144034/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
QIIOVRI)Sm.LrnI,
AYTO”“rn”
0.rl.m.n. | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130396/ | Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-1073
Commissioner of Health
Texas Department of Health Re: Reconsideration of
1100 West 49th Street JM-983 (igaa), regarding
Austin, Texas 78769 the use of Station Message
Detail Recordings (RQ-1641)
Dear Dr. Bernstein:
You have asked that we reconsider Attorney General
Opinion JM-983 (1988), in which we concluded that a Station
Message Detail Recording device (SMDR) was a pen register.
We have received a number of letters and briefs arguing that
an SMDR is not in fact a pen register.
In reviewing those letters and briefs we conclude that
we based our determination that an SMDR is a pen register on
a rather scant description of the device at issue in that
opinion. The letters and briefs we received contain
persuasive arguments that an SMDR is not in fact a pen
register. We decline, however, to make a determination
about whether an SMDR as described in those briefs and
letters is or is not a pen register since we cannot make a
determination that requires the resolution of fact issues.
We emphasize again, however, that even if a device is a
pen register, its use is permissible if the use "is a
necessary incident to the rendition of service or to the
protection of property of or services provided by the
enterprise" and ,is not used for law enforcement or private
investigative purposes. Penal Code art. 16.03(d). . The use
at issue in Attorney General Opinion JM-983 was to help the
county "to identify unauthorized long distance telephone
usage and avoid waste of County funds." We think such a use
is clearly a permissible one under article 16.03(d) of the
Penal Code.
In conclusion, we withdraw Attorney General Opinion
JM-983 and decline to make determinations about whether
particular devices are or are not pen registers. Regardless
of whether a device is a pen register, however, the use of
P. 5587
Dr. Robert Bernstein - Page 2 (JM-1073)
the device to protect state property by recording the origin
of incoming communications as well as outgoing numbers
called in order to prevent the public from paying for
private calls is permissible under article 16.03(d) of the
Penal Code.
SUMMARY
Regardless of whether a device is a pen
register, the use of su.ch a device to protect
state property by recording the origin of
incoming communications as well as outgoing
numbers called in order to prevent the public
from paying for private calls is permissible
under article 16.03(d) of the Penal Code.
Attorney General Opinion JM-983 is withdrawn.
J
Very truly you
A/;,
JIM MATTOX
Attorney General of Texas
WARY KELLER
First Assistant Attorney General
LOU-MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P- 5588 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130271/ | Ms. Tish Gonzalez Opinion No. JM-1198
Acting Executive
Administrator Re: Authority of the Texas
Texas Housing Agency Housing Agency to take and
P. 0. Box 13941 hold title to foreclosed
Austin, Texas 78711-3941 properties in its own name,
and related questions
(RQ-1897)
Dear Ms. Gonzalez:
You have requested that we address several questions
about the "single family mortgage revenue bond programs" of
the Texas Housing Agency. Your first question is:
Does Sec. 8(a)(5) [of the the Texas Housing
Agency Act, article 12691-6, V.T.C.S.] permit
[the agency] to take and hold title to fore-
closed properties in its own name?
The Texas Housing Agency is authorized to make mortgage
loans to private entities to help finance low and moderate
income housing developments, and to issue revenue bonds to
finance mortgage loans. V.T.C.S. art. 12691-6, §§ 9, 10.
You describe the single family mortgage revenue bond
programs as follows:
These programs typically have the following
structure: After obtaining approval to
proceed with the program and to issue bonds
to finance the program, the Texas Housing
Agency (‘THAI) locates mortgage companies to
originate mortgages to qualified buyers and
to service these mortgages after origination.
Such mortgage companies are called 'Lenders'
or 'Participants.' THA then issues bonds to
finance the program. The money paid for the
bonds goes to a trust fund which THA sets up,
supervised by a bank on behalf of THA (the
'Trustee'). As the Lenders originate mort-
gages, they sell these mortgages to the
Trustee, who buys them with the bond proceeds
on behalf of THA. It is currently the policy
of the Trustee to acquire the Notes and Deeds
P. 6334
Ms. Tish Gonzalez - Page 2 (JM-1198)
of Trust which constitute the mortgages in
the trust's name on behalf of THA. Further,
when a mortgage goes into default and the
financed real estate is foreclosed upon, it
is presently the policy of the Trustee to
acquire the property in the Trustee's name on
behalf of THA.
Section S(5) of article 12691-6, V.T.C.S., states that the
Texas Housing Agency has the power
to acquire, own, rent, lease, hold, or dis-
'pose of any real, personal, or mixed pro-
perty, or any interest therein, in performing
its duties and exercising its powers under
this Act, by purchase, exchange, gift,
assignment, transfer, foreclosure, sale,
lease, or otherwise, including rights or
easements and to hold, manage, operate, or
improve real, personal, or mixed property.
Section S(6) of the statute authorizes the agency to "sell,
assign, lease, encumber, mortgage, or otherwise dispose Of"
property "owned by it," and to "release or relinquish any
right, title, claim, lien, interest, easement, or demand,
however acguired.11 We think those provisions make clear
that the Texas Housing Agency Act may hold title to the
properties in question in its own name.
You next ask about the pro riety of a bank holding
property *on behalf of" the THA. P From our examination of
the instruments you provided, it appears that the bank acts
both as a trustee for the bondholders and as agent for the
Texas Housing Agency in its dealings with the mortgage
companies. When an agent takes title to property "on behalf
of" the principal in the name of the agent, the agent holds
the property in trust for the benefit of the principal.
See State v. Eaaerman, 16 S.W. 1067 (Tex. 1891) (defining
~~behalf~~);see also Thomnson v. Schmitt, 274 S.W. 554 (Tex.
1925) (party may be an agent even if called a "trustee").
Thus, we think the legal relationship of the Texas Housing
Agency to the property is the same when title to property is
taken in the name of the bank acting on behalf of the agency
as when the agency takes title in its own name.
1. Your specific question is whether various documents
require that the Texas Housing Agency take and hold title to
foreclosed property 'in its own name. We do not interpret
such documents in the opinion process.
P. 6335
Ms. Tish Gonzalez - Page 3 (JM-1198)
Your third question is:
Does Sec. 16 of Article 1269L-6 give the THA
the right at its option, ~g$ to pay any taxes
on real or personal property acquired through
foreclosure or sale under a Deed of Trust or
otherwise either by THA or by trustees who
acquire the properties only on behalf of THA?
Section 16 of the Texas Housing Agency Act provides:
The property of the agency, its income, and
operations are exempt from all taxes and
assessments imposed by the state and all
public agencies on property acquired or used
by the agency under the provisions of this
Act. The agency may, under its terms,
conditions, and rules, make payments to
public agencies in lieu of ad valorem taxes
on any property which the agency has acquired
through foreclosure or sale under a deed of
trust. It shall be the policy of the agency
to make these payments in lieu of taxes
whenever practicable with any money lawfully
available for this purpose, subject to the
provisions, requirements, and restrictions of
any bond resolution.
That provision makes the property of the agency, its income,
and its operations exempt from taxes and assessments imposed
by state or local taxing authorities. Property held on
behalf of the agency by agents for the Texas Housing Agency
would be property of the agency within the meaning of the
statute.
Next, you ask:
Assuming THA and Trustees acting on behalf of
[the agency] may refuse to pay such taxes, may
they refuse to pay the taxes even on pro-
perties held by the original buyer on January
1st of the given year and/or for some portion
of the year in which foreclosure occurred?
Section 32.07 of the Tax Code provides that property taxes
are the personal obligation of the person who owns or
acquires the property on January 1st of the year for which
the tax is imposed. But see Tax Code §§ 25.13, 32.07(b). A
lien to secure payment of the taxes attaches to the property
on January 1st of the year for which the tax is imposed.
Tex. Const. art. VIII, 5 15; Tax Code 5 32.01. The lien is
not extinguished by the subsequent acquisition of the
P. 6336
Ms. Tish Gonzalez - Page 4 (JM-1198)
I
property by a governmental body in whose hands it is exempt
from taxes, but enforcement of the lien is suspended.
Childress Countv v. Stat,=, 92 S.W.2d 1011 (Tex. 1936):
Maverick Co ntv W ter ntrol Imurovement Dist. No. 1
&&.& 456 z.W.2da204 'TTex. Cit. App. - San Antonio 197;;
writ ref*d); State v. Bexar-Medina-Atascosa Counties Water
Imnrovement Dist. 310 S.W.2d 641 (Tex. Civ. App. - San
Antonio 1958, wri; ref'd); Attorney General Opinion JM-1085
(1989) . If the property is acquired by someone in whose
hands it is not exempt, the lien can then be enforced.
Childress Countv v. State, sunra.
You also ask whether the agency could use various funds
to pay taxes: since the agency is not liable for taxes on
property it owns, we need not reach those questions.
SUMMARY
The Texas Housing Agency may hold title to
foreclosed properties in its own name or in
the name of an agent acting on its behalf.
Such property is exempt from state and local
taxes. The agency is not liable for taxes
that accrued against property before the
agency acquired ownership of it, but the
property remains subject to a lien for the
unpaid taxes. .
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRBARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6337 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130276/ | THE ATTORNEY GENERAL
OF TEXAS
Honorable Randy M. Phillips Opinion No. JM-1193
Lipscomb County Attorney
BOX 348 Re: Authority of a county to
Booker, Texas 79005 pay its employees who are in
debted to the county for pro
perty taxes (RQ-1826)
Dear Mr. Phillips:
You advise that certain county employees are delinquent
in paying ad valorem taxes owed to the county, and that
these employees are making periodic payments on the taxes
owed. YOU ask whether section 154.025 of the Local
Government Code prohibits the payment of salaries of county
employees or elected officials who owe taxes to the county
if the employees or elected officials have made arrangements
with the county to make periodic payments to retire the
obligation.
Section 154.025 of the Local Government Code reads as
follows:
A warrant may not be drawn on a salary
fund in favor of a person, or an agent or
assignee of a person, who is indebted to the
state, the county, or the salary fund.
The attorney general responded to a similar question in
Attorney General Opinion O-5249 (1943).1 In Attorney
General Opinion o-5249 the question posed was whether
article 4350, V.T.C.S., prohibited the comptroller from
issuing a warrant to a person against whom the state had an
1. Debt as a bar to the issuance of government
warrants, and the determination of when such indebtedness
exists has been discussed in a number of attorney general
opinions over the years. See, e.a., Attorney General
Opinions JM-255 (1984); Mm-416 (1981); Letter Advisory No.
57 (1973); WW-1504 (1962); hW-671 (1959); v-1113 (1950);
O-4655 (1942).
P. 6299
Honorable Randy M. Phillips - Page 2 (JM-1193)
outstanding judgment for delinquent tax payments. At the
time Attorney General Opinion O-5429 was issued article 4350
read as follows:
No warrant shall be issued to any person
indebted to the State, or to his agent or
assignee, until such debt is paid.
The attorney general held that the term "debt," as
ordinarily used, did not include a tax, and that
consequently, the comptroller was not authorized to withhold
a warrant on this basis. In so holding, the attorney
general was in line with the preponderance of precedent in
American courts. &B Words and Phrases, l'Debt,q* (West
1971). But cf. Price v. United States, 269 U.S. 492
(1926).2 Texas courts have also held that, ordinarily,
l@debt'qdoes not include taxes. Brooks v. Brooks 515
S.W.Zd 730, 733 (Tex. Civ. Anp. - Eastland 1974, writ'ref'd
n.r.e.). in &3 helle Citv‘ of Dal1 as, 264 Fi2d 166 (5th
Cir. 1955) car:. denizd, 361 U.S. 828 (1959), the court
stated:
[W]hile occasionally the words *'debtsl* and
Vaxes" are used interchangeably, ordinarily
this is not so. Indeed in most instances
they are used distinctively. This
established, it follows that to support a
construction of a statute that the word
"debt** include taxes, there must be some
reason shown to so read a statute other than
the fact that sometimes the word debt will
include taxes. This reason must be sought in
the purpose of the statute, that is the
mischief sought to be prevented and the
appropriate means to achieve that end.
2. In holding that '1debt'1included taxes owed the
United
_ . States for purposes of the priority of federal
claims, the court in w stated: "The meaning properly to
be attributed to that word depends upon the connection in
which it is used in the particular statute and the purpose
to be accomplished." 269 U.S. at 500. The statute construed
in Price, the former R.S. 3466, now appears as 31 U.S.C.
5 3713(a) and uses the word V'claim.'O
P. 6300
Honorable Randy M. Phillips - Page 3 (JM-1193)
The purpose of section 154.025 of the Local Government
Code is to insure payment of obligations owing to the
county. Rains v. Mercantile Nat'1 Bank at Dallas, 188
S.W.2d 798, 804 (Tex. Civ. App. - El Paso 1945) (construing
section 7 of predecessor article 3912e) u, 191 S.W.2d
850, 854 (Tex. 1946). While such a purpose could as easily
apply to delinquent taxes as to any other obligation, we
have no basis for finding that the legislature meant the
word "indebted" in section 154.025 of the Local Government
Code to have a more inclusive meaning than it would
ordinarily have. To the contrary, we note the legislature
has, with regard to other legislation, affirmatively
indicated by the use of express language its intent to
include delinquent taxes as a bar to the issuance of
government warrants.
For example, article 4350, quoted above, was amended by
House Bill 2067 in 1977 to read:
No warrant shall be issued to any person
indebted or owina delincuent taxes to the
State, or to his agent or assignee, until
such debt or taxes are paid.
Acts 1977, 65th Leg., ch. '682, 5 1, at 1715 (emphasis added
to show 1977 changes).3 The bill analysis of House Bill
2067 states:
around :
The state treasurer under present law mav
withhold warrants from persons indebted t'o
the state.
purpose :
This bill enables the state treasurer to
withhold warrants from persons owing
delinquent taxes.
3. Article 4350 was subsequently amended in 1983 to
prohibit the issuance of a warrant to a person owing
delinquent taxes on any tax administered or collected by the
comptroller. Acts 1983, 68th Leg., ch. 100, at 499. In
1987, article 4350 was codified into the Government Code
where it now appears as section 403.055. Acts 1987, 70th
Leg., ch. 147, § 1, at 333.
P- 6301
Honorable Randy M. Phillips - Page 4 (JM-1193)
The 1977 amendment to article 4350 indicates
recognition by the legislature that the term "indebted'@ in
the original version of the statute did not include
obligations for delinquent taxes. As the legislature has
not enacted an analogous amendment to section 154.025 of the
Local Government Code, we conclude that the term "indebted"
as used in that statute does not include outstanding tax
obligations.4
In conclusion, section 154.025 of the Local Government
Code does not prohibit a county from paying the salaries of
county employees or elected officials who are delinquent in
ad valorem tax obligations. As this resolves your question,
we need not consider under what circumstances, if any, an
agreement to make periodic payments could be considered a
discharge of indebtedness for purposes of Local Government
Code section 154.025.
SUMMARY
Section 154.025 of the Local Government
Code does not prohibit a county from paying
the salaries of county employees or elected
officials who are delinquent in ad valorem
tax obligations. .
-J I M MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
4. The source law for section 154.025, former section
7 of article 3912e, was slightly reworded when included in
the Local Government Code, but no substantive change was
made. Acts 1987, 70th Leg., ch. 149, 55 1, 51 at 936, 1308.
P. 6302
Honorable Randy M. Phillips - Page 5 (JM-1193)
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
P- 6303 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130299/ | Mr. Arnold W. Oliver, P.E. Opinion No. JM-1170
Engineer-Director
State Department of Highways Re: Conveyance of land from the
and Public Transportation Texas Department of Corrections
Dewitt C. Greer State to the State Department of
Highway Building Highways and Public Transporta-
11th h Brazes tion (RQ-1951)
Austin, Texas 78701-2483
Dear Mr. Oliver:
You ask about the construction of a bill requiring the
Department of Corrections to transfer certain real property
to the Department of Highways and and Public Transportation
(hereinafter Highway Department). Specifically, you ask
e whether the bill authorized the Department of Corrections to
reserve the mineral rights in the land in question or
whether the bill required the department to transfer title
in fee simple.
In 1907 the legislature adopted Senate Bill 52, which
provides in part as follows:
SECTION 1. CONVEYANCE OF PROPERTY. (a)
On behalf of the state, the Texas Board of
Mental Health and Mental Retardation and the
Texas Department of Corrections shall sell to
the State Department of Highways and Public
Transportation the tracts of state-owned land
that are described by Section 2 of this Act
for a total amount of $120.6 million.
(b) Before August 31, 1980, the .State
Department of Highways and Public
Transportation shall purchase the land for a
total amount of $120.6 million. All the land
that qualifies for the expenditure of
constitutionally dedicated funds shall be
purchased from the constitutionally dedicated
p. 6173
Mr. Arnold W. Oliver - Page 2 (JM-1170)
portion of the state highway fund.1 The
remainder shall be purchased from the
statutorily dedicated portion of the state
highway fund.
Acts 70th Leg., 2d C.S., ch. 2, 5 1, at 5 (footnote added).
You state that the Highway Department tendered the
purchase price to the Board of Mental Health and Mental
Retardation (hereinafter MHMR) and the Department of
Corrections. MHMR delivered a deed conveying, without
reservation, the property described in Senate Bill 52. The
Department of Corrections, however, refused to execute a
deed transferring title in fee simple and took the position
that the legislature did not intend that the Department of
Corrections transfer the mineral rights in the land in
question.
1. Article VIII, section l-a, Texas
Constitution provides that revenues fromofmotEr vehicle
registration fees and taxes on motor fuels and lubricants
shall be used only for certain specified purposes, most of
which have to do with financing of roads and highways.
Article VIII, section 7-b provides:
All revenues received from the federal
government as reimbursement for state
expenditures of funds that are themselves
dedicated for acquiring rights-of-way and
constructing, maintaining, and policing
public roadways are also constitutionally
dedicated and shall be used only for those
purposes.
Section l(b) of Senate Bill 52 restates the
constitutional requirement that the Highway Department may
expend funds from the sources described in those
constitutional provisions only for purposes set out in those
constitutional provisions. We note that section 4(b) of
Senate Bill 52 would allow the Highway Department to lease
back to TDC for $1 a year any portion of the land acquired
from TDC pursuant to Senate Bill 52. The constitutionality
of such a lease would be in question if the Highway
Department used funds subject to section 7-a or section 7-b
of article VIII to purchase the land from TDC.
P. 6174
Mr. Arnold W. Oliver - Page 3 (JM-1170)
The legislature has exclusive control over the
disposition ;if state-owned land. See Lorino Y. Crawford
mna Co,, 175 S.W.Zd 410, 414 (Tex. 1943); Conlev
pauahters of the Renu&&.j& 156 S.W. 197, 200 (Y Pex. 1913;;
Attorney General Opinion JM-242 (1984). Senate Bill 52
states that the Department of Corrections I'shall sell to the
State Department of Highways and Public Transportation the
tracts of state-owned land" described in the bill. The bill
contains no language indicating that the Department of
Corrections should retain any interest in that land. In
grants of land, reservations of mineral interests must be by
clear language. sharp v. Fowler, 252 S.W.Zd 153 (Tex.
1952). In Texas, under both case law and statutory law, a
grant of land will be construed as a grant of an estate in
fee simple unless the conveyance is expressly limited. &
of Stamford King 144 S.W.2d 923 (Tex. Civ. APP. -
Eastland 1940: writ rLf#d) : Prop. Code § 5.001(a). We think
the courts would apply an analogous rule to construction of
a statute requiring one state agency to transfer real
property to another state agency. Therefore, we do not
think the Department of Corrections was authorized to
reserve to itself the mineral estate in the land described
in Senate Bill 52. See aeneraLly Attorney General opinion
WW-207 (1980) (statutes governing Department of Corrections
indicate legislative intent to regulate closely disposition
of land under control of Department of Corrections): G
Acts 1930, 41st Deg., 5th C.S., ch. 67, at 215 (authorizing
Department of Corrections to sell certain property, but
requiring that oil, gas, and mineral rights be reserved to
state): Attorney General Opinion JW-242 (statute permitting
board of regents "to transfer and convey" land under terms
and conditions deemed advisable by regents allowed regents
to convey easement or fee simple title).
Two arguments have been raised in support of TDC's
position. One is that the amount to be paid by the Highway
Department for the land held by TDC is the value the
General Land Office placed on the surface estate in that
land. However, there is no requirement that a state agency
receive "adequate compensationw when state property in its
custody is transferred to the custody of another state
agency. m Attorney General Opinion WW-1273 (1962) (land
acquired in name of county for construction of state
highways is state property regardless of fact that deed is
made out to county); we a180 Tex. Const. art. I, § 17
(requiring payment of adequate compensation when private
property is taken for public purposes).
p. 6175
,
Mr. Arnold W. Oliver - Page 4 (JM-1170)
The other argument is that TDC's retention of the
mineral rights is required by the following Appropriations
Act rider:
No state lands shall be sold unless the
mineral rights are retained by the state,
unless impractical.
General Appropriations Act, Acts 1989, 71st Leg., ch. 1263,
art. V, 5 83; General Appropriations Act, Acts 1987, 70th
-g., 2d C.S., ch. 78, art. V, 5 79. Regardless of whether
TDC or the Highway Department holds title to the mineral
rights in the land in question, those rights will be held by
the state. Conseguently,,,that rider has no application to
your question.
SUMMARX
A bill requiring the Department of
Corrections to transfer certain real property
to the Department of Highways and Public
Transportation did not authorize the
Department of Corrections to reserve to
itself the mineral estate in that land.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6176 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130313/ | April 16, 1990
Honorable William P. Hobby Opinion NO. JM-1156
Lieutenant Governor
The State of Texas Office Re: Child care facilities in
of the Lieutenant Governor building owned or leased by the
P. 0. BOX 12068 State of Texas (RQ-1905)
Austin, Texas 78711-2068
Dear Governor Hobby:
You ask several questions about Senate Bill 1480. Acts
1989, 71st Leg., ch. 1207, at 4904. That bill established
the Child Care Development Board, which is charged with
developing and administering a program to provide child care
services for state employees who work in state-owned
buildings. V.T.C.S. art. 6252-3e. The bill also made
several amendments to the provisions of the State Purchasing
and General Services Act, article 601b, V.T.C.S., that deal
with the lease of space in state-owned buildings to private
tenants.
Your first question is whether the site must be located
in a state-owned building.1 The language of Senate Bill
1480 and the legislative history make clear that the
legislature contemplated that the site for a child care
facility would be in a state-owned building. The caption to
Senate Bill 1480 states that the act relates "to the
creation of a Child Care Development Board and a Child Care
Advisory Committee and to using state-owned buildings for
child care facilities." A bill analysis prepared for Senate
Bill 1480 states that the purpose of the bill is to
"implement a program to use state-owned buildings for child
care facilities." Bill Analysis, S.B. 1480, 71st Leg.
(1989). Also, section 7 of article 6252-3e provides that
1. We do not consider what particular financing
arrangements may qualify a building as a *'state-owned
building."
P. 6098
Honorable William P. Hobby - Page 2 (JM-1156)
the Purchasing and General Services Commission shall lease a
state child care facility site at a reasonable rate. A
requirement that the State Services and General Purchasing
Commission lease the space for the facility at a reasonable
rate makes sense only if the facility site is owned by the
state. m V.T.C.S. art. 601b, S 4.15 (dealing with lease
of space in state-owned buildings to private tenants).
think that the caption to Senate Bill 1480 and t::
provisions discussed above make clear that child care
facilities developed under article 6252-3e were 'intended, to
be in state-owned buildings.
your second question is:
Under SB 1480 and Article 5, State
Purchasing and General Services Act, may a
child care facility site be located in a
building of appropriate size that would be
newly constructed specifically for the board
by the commission, or is the board limited
respecting newly constructed state buildings
to buildings that contain at least 100,000
square feet of net usable space, under
section 5.01(b), State Purchasing and General
Services Act?
Most of the provisions of Senate Bill 1480 deal with the
development of a child care facility in existing state-owned
space. Nothing in the bill suggests that the legislature
intended that a building be built solely for child care.
Our conclusion that Senate Bill 1480 does not authorize the
construction of a building solely for the purpose of
providing a child care facility is supported by section 5.01
of article 601b, which provides:
(a) Under such terms and conditions as may
be provided by law, the commission may
acquire necessary real and personal property,
modernize, remodel, build, and
buildings for state purposes, and em?:E
contracts necessary to carry out and
effectuate the purposes herein mentioned in
keeping with appropriations authorized by the
legislature. The commission shall not sell
or dispose of any real property of the state
except by specific authority from the
legislature.
P- 6099
Honorable William P. Hobby - Page 3 (JM-1156)
(b) The Child Care Development Board shall
determine if a child care facility may be
included in a state-owned office building
constructed after September 1, 1989, that
contains at least 100,000 square feet of net
usable space and shall notify the commission
of that determination. The commission shall
notify the Child Care Development Board of a
project to rehabilitate or renovate
substantially an existing state-owned office
building containing at least 100,000 square
feet of net usable space before developing
the rehabilitation or renovation plan. Not
later than the 30th day after the date on
which the Child Care Development Board
receives the notice, the board shall
determine if a child care facility may be
included in the rehabilitation or renovation
project and shall notify the commission of
that determination. The commission shall
include a child care facility in a
construction, rehabilitation, or renovation
project if the Child Care Development Board
determines that the child care facility
should be included.
The language that is now subsection (a) has been in article
601b 'since it was adopted in 1979. Acts 1979, 66th Leg.,
ch. 773, at 1908. Subsection (a) addresses the authority of
the State Purchasing and General Services Commission to
construct new state buildings. Senate Bill 1480 added
subsection (b), which deals with inclusion of space for a
child care facility in a newly-constructed state building.
The fact that subsection (b) refers to the "inclusionl' of a
child care facility in a newly constructed building
indicates that the legislature did not intend that new
state buildings be constructed solely for the purpose of
housing a child care facility.
Your third question is:
Once a site is obtained, may it be leased
to a child care provider at a reasonable rate
that is less than fair market value under
Section 4.15(b), State Purchasing and General
Services Act: Section 7(a), Article 6252-3e,
Revised Statutes: Article III, Section 51, of
p. 6100
,
Honorable William P. Hobby - Page 4 (JM-1156)
the Texas Constitution; and other relevant
law?
Section 7(a) of article 6252-3e provides in part:
The [State Purchasing and General
Services] commission shall lease a state
child care facility site at a reasonable rate
to a child care provider selected by the
board.
Section 4.15 of article 601b deals with the lease of space
in state-owned buildings to private tenants. Senate Bill
1480 amended subsection (f) of section 4.15 to provide as
follows:
The commission may lease space in a
building after the lease is negotiated with
the tenant or after the tenant is selected
through a competitive bidding process. In
either case, the commission shall follow
procedures that promote competition and
protect the interests of the state: except
that, if the space is leased for the purpose
of providing child [day] care services for
&&R employees [e+hhe-bai%di?g], the w
Care Devel nment board. m 1t sole
discretion, yeemmissien] may select t:e child
Eare nrovidec [tenant] through procedures
other than competitive bidding. (Language
added by S.B. 1480 emphasized: language
deleted by S.B. 1480 overstricken.)
Read together, those provisions indicate that space for a
child care facility is to be leased at a rate that is
reasonable to charge for a child care facility, not
necessarily at the rate that could be charged for the same
space if it could be leased for other purposes. Therefore,
we conclude that space to be used as a child care facility
is not required to be leased at fair market value.
You ask whether leasing space for child care facilities
at a rate lower than fair market value would be a donation
of public property and therefore in violation of article
III, section 51, of the constitution. Article III, section
51, would not prohibit lease of public property for less
P. 6101
Honorable William P. Hobby 1 Page 5 (JM-1156)
than fair market value if it served a public purpose.2
Attorney General Opinions JW-1091 (1989); WW-373 (1981).
The bill analysis to Senate Bill 1480 sets out the public
purpose to be achieved by leasing space for child care
facilities at a rental rate that may be less than fair
market rates:
Various studies have shown that absenteeism,
tardiness and employee turnover can be
reduced substantially when employees with
young children have convenient, economical,
quality child-care services available. Such
studies have also shown positive effects on
employee morale, job satisfaction, and
productivity.
Bill Analysis, S.B. 1480, 71st Leg. (1989). We think the
courts would agree with the legislature that leasing space
for child care facilities at a rate less than fair market
value in order to improve employee performance is a public
purpose.
Your fourth question is:
Under Section 7(a), Article 6252-3e,
Revised Statutes, may the board determine and
set what constitutes a reasonable rate for
the lease as part of the board's power to
prescribe by rule provisions that must be
included in a lease to a child care provider?
Section 7(a) of article 6252-3e provides:
The [State Purchasing and General
Services] commission shall lease a state
child care facility site at a reasonable rate
to a child care--prwider selected by the
board. The [Child Care Development] board by
rule may prescribe provisions that must be
included in a lease and provisions that may
not be included in a lease.
2. There must also be adequate controls to assure that
the public purpose is achieved.
p. 6102
Honorable William P. Hobby - Page 6 (JM-1156)
We think the plain meaning of that provision is that the
determination of a wreasonablew rental rate was to be a
matter for the State Purchasing and General Services
Commission, not the Child Care Development Board.
SUMMARY
Senate Bill 1480, Acts 1989, 71st Deg.,
ch: 1207, authorizes the development of child
care facilities in state-owned buildings. It
does not authorize the state to lease space
for child care facilities in privately owned
buildings. The bill does not authorize the
construction of a new state building solely
for the purpose of housing a child care
facility. The bill authorizes the State
Services and General Purchasing Commission to
rent space for a child care facility at a
rate that is nreasonable*' to charge for a
child care facility; that rate may be less
than fair market value. It is for the State
Services and General Services Commission, not
the Child Care Development Board, to
determine what constitutes a "reasonable"
rental rate.
JIM MATTOX
Attorney General of Texas
WARYKELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RENXA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6103 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150381/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-1048V
(Filed: February 6, 2017)
UNPUBLISHED
* * * * * * * * * * * * * *
JAMES GREENAMYRE, *
On behalf of his daughter, L.J.G.,
* Dismissal; Varicella Vaccine;
* Pneumonia; No Expert Report;
Petitioner, * Six Month Requirement.
*
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * *
Paul Dannenberg, Huntington, VT, for petitioner.
Gordon Shemin, U.S. Dept. of Justice, Washington, DC for respondent.
DECISION1
Roth, Special Master:
On October 28, 2014, James Greenamyre (“petitioner”) filed a petition for Vaccine
Compensation in the National Vaccine Injury Compensation Program [“the Program”],2 on behalf
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I
intend to post this decision on the United States Court of Federal Claims' website, in accordance
with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified
as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner
have 14 days to identify and move to delete medical or other information, that satisfies the
criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, I will delete such material from public
access.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter
“Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §
300aa of the Act.
1
of his minor child, L.J.G. Petitioner alleged that shortly after receiving a varicella vaccine on
December 1, 2011, L.J.G. suffered from pneumonia. The information in the record, however, does
not show entitlement to an award under the Program. On February 2, 2017, petitioner filed a
“motion for decision dismissing petition” requesting that the case be dismissed. ECF No. 43.
To receive compensation under the Program, a petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or 2) that he suffered an injury that was actually caused by a vaccine. See §§
13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that L.J.G.
suffered a “Table Injury.” Furthermore, the record does not contain persuasive evidence indicating
that L.J.G.’s alleged injury was in fact caused by the vaccine.
A petitioner must also show that the injured person has “suffered the residual effects or
complications of [her] illness, disability, injury, or condition for more than six months after the
administration of the vaccine.” 42 U.S.C. § 300aa-11(c)(1)(D)(i). Alternatively, if the injured
person does not meet the six month requirement, she may also be entitled to compensation if the
person required “inpatient hospitalization and surgical intervention.” 42 U.S.C. § 300aa-
11(c)(1)(D). The medical records submitted show that L.J.G. recovered from her pneumonia
within weeks, without hospitalization or surgical intervention, and therefore failed to meet the six
month requirement.
Under the Act, a petitioner may not be given a Program award based solely on the
petitioner’s claims alone. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient
medical records supporting petitioners’ claim, a medical opinion must be offered in support.
Petitioner, however, has offered no such opinion that supports a finding of entitlement.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that L.J.G. suffered a “Table Injury” or that her injuries were “actually
caused” by a vaccination. Furthermore, petitioner cannot show that L.J.G. has met the six month
requirement. Thus, this case is dismissed for insufficient proof. The Clerk shall enter
judgment accordingly.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
2 | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150382/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-1205V
Filed: February 7, 2017
Not for Publication
*************************************
SHIRLEY EPPS, *
*
Petitioner, *
* Attorneys’ fees and costs decision;
v. * reasonable attorneys’ fees and costs
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
*************************************
Lawrence R. Cohan, Philadelphia, PA, for petitioner.
Sarah C. Duncan, Washington, DC, for respondent.
MILLMAN, Special Master
DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1
On October 15, 2015, petitioner filed a petition for compensation under the National
Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012). Petitioner alleged that
tetanus toxoid-diphtheria-acellular pertussis (“TdaP”) and influenza (“flu”) vaccines
administered on January 10, 2014 caused her to develop restless leg syndrome and generalized
paresthesia. On January 12, 2017, the undersigned issued an Order Concluding Proceedings
after petitioner filed a Motion to Voluntarily Dismiss her claim.
On January 19, 2017, petitioner filed a motion for attorneys’ fees and costs. Petitioner
1
Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
requests attorneys’ fees in the amount of $26,893.50 and attorneys’ costs in the amount of
$3,905.19, for a total request of $30,798.69. In compliance with General Order #9, petitioner’s
counsel stated that petitioner did not incur any expenses in pursuit of her claim. Fee App. ¶ 5.
On February 6, 2017, respondent filed a response to petitioner’s motion explaining that
she is satisfied that this case meets the statutory requirements for an award of attorneys’ fees and
costs under 42 U.S.C. § 300aa-15(e)(1)(A)-(B). Resp. at 2. Respondent “respectfully
recommends that the special master exercise her discretion and determine a reasonable award for
attorneys’ fees and costs.” On February 7, 2017, the undersigned issued an Order
recommending that petitioner not file a reply due to respondent’s lack of any particular objection
to petitioner’s fee request.
The Vaccine Act permits an award of “reasonable attorneys’ fees” and “other costs.”
42 U.S.C. § 300aa-15(e)(1). It is not necessary for a petitioner to prevail in the case-in-chief in
order to receive a fee award as long as petitioner brought the claim in “good faith and there was a
reasonable basis for the claim.” Id. The special master has “wide discretion in determining the
reasonableness” of attorneys’ fees and costs. Perreira v. Sec’y of HHS, 27 Fed. Cl. 29, 34
(1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994); see also Saxton ex rel. Saxton v. Sec’y of HHS, 3
F.3d 1517, 1519 (Fed. Cir. 1993) (“Vaccine program special masters are also entitled to use their
prior experience in reviewing fee applications.”).
Based on her experience and review of the billing records submitted by petitioner, the
undersigned finds that the majority of petitioner’s attorneys’ fees and costs request is reasonable.
However, petitioner’s attorneys billed a total of 89.1 hours on this case, and request $26,893.50
in fees for their work on the case. The undersigned finds that the time billed by petitioner’s
attorneys is excessive. She finds that $20,000.00 is an appropriate amount of attorneys’ fees in
this case. Accordingly, the undersigned reduces the amount she awards for attorneys’ fees and
costs by $6,893.50.
The undersigned GRANTS petitioner’s Motion for Attorneys’ Fees and Costs.
Accordingly, the court awards $23,905.19, representing attorneys’ fees and costs. The award
shall be in the form of a check made payable jointly to petitioner and Anapol Weiss in the amount
of $23,905.19.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2
IT IS SO ORDERED.
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
2
Dated: February 7, 2017 s/ Laura D. Millman
Laura D. Millman
Special Master
3 | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144038/ | OFFICE OF THE ATTORNEY GENERAL OF
AUSTIN
Eonorablr w. a. lfa~lal~
Dirtriot Attorney
Oonror , Toar
er o o ta lW
its dlstrlot dur-
a8OQ and, through
aron undrr the raprr-
id rohool dirtrlot
tlonal taollitlrr
a publio an6 perhaps
m.iBrlis8 ior ths us. of
honorable 1. 0. L'OClSio,OagO t
IO Will not be SO OOIIOS~Od herOin With "tMLti8
warts* and other like a ndlnslagous pla7ground faOilItI~8,
mnorall7 loorpted as a part of tho wph7sloal* lduoatloa
of 8ohool lhlldrea and thero oaa be no quertloa as to the
t~StOO8' anthorltf in SO prod&it@ iOr #a&a, the lx~adi-
tUX6 for whloh 18 luthorlzsd t0 k Mdo i'ma proper avail-
lb i0 rMd8 Of th 8 di#triOt. ThiS brIn.%sus to t&At part OS
7m.r roqusrt with rhloh (IO aro most oonoorrd, to-wit,
*B~IEUL~ pOO18" ld “OOmmLUit7 hOUSe*.
we hsv8 carerull7 SfUdiOd the ease 0r rado1e7
VS. ~lU#te~# Or COntOe ~IldepMdOIlt Sohool DIrtrIOt, 120 S.
X. (2) 929, whioh oaso arose in 7our district, and numerous
other luthoritIe8 Inrolring the 4xyndIturr of lrallablr
Sohool fund@, inolading those 8uhmitt,d In 7our brief, and
YO are unable to find an7 expressed authority ior the em:-
Pndlture or ataIlabls'8ohool funds ror the emotion or
SWimPlIK@ pOO18 Of '005?dlflit7
hOUsO8.
Artlole 2027, Vcrnon~a Civil Statutes provider,
in part:
*Th8 pub110 irea #Oh001 &ndS #ha11 not b0
.Z& Wlded
lXOept for the fO1lOUing pUQO#eS:
*. . .
.L. UOti #Oh001 rMa8 irOlpdl#trIOt taX[dS,
tultlon rOO8 or pupils aot entitled to rres tub
tlon and other looal souroes ma7 be ased ror the
purpo8e8 enamratod tar Stats sad ooont7 iPnd8
and r0r purohaslng app1lum48 and 8uppll~s, ror
the paymant or lneurum premiums, janitor8 an4
Other lmp107.08, ior bUying Beboo Site@, buylag,
building and repalrlng and renting @Oh001 hmses,
and ror other p~rp0808 neOeSSar7 in the oonduot
oi the publlo 86hOOl8 to be determined br the
Board or ~StOBS, the aooouats and rooehrr8 ror
oouaty districts to be approved by the ooUnt7
ruporlntendmt; prorldod, that when the Stat0
available school fund in an7 oIt7 or dlstrlot Is
rurrloient to maintain th8 8ohool8 thereor in an7
par ror at least eight months, and learr a sur-
p1Q8, suoh surplus ma7 be expended for the purposes
rarntlonrdheroin. (AOtS 1.905,p. 263; AOtS 1919,
p. 189.)"
F Eonorablo II. C. YoClaln,-pagr S
In the oaso 0s Aa- v#r IlilOS. lt al.. so0 8.~.
a tp g 0a s, th 0 COm had th a the t Sff6Ot Oftb 8lb OVi-
StAtUtOm prOViSiOfi8 18 t0 aUthOri%@ the trUSti t0 es-
pm6 the #ah001 fMd8 awired rmifi looal soura and th0
S~rplM from tb state and ootmtr lrailablo sohool rUd8,
r0r aa and all ths purpoae8 lnuuw8tod, a nd.ror ruoh other
purp0808 a8 la the ai8ontion 0r the Board 0s Troltre8 x
be rrasoaabl7 aao8ssar7 In the malntonanoe and operation of
the SOhO018.
The OOtUt In approving the Suthorit7 SO T@StOd in
the trUSt8~8,
by making the lxp8nditurms in th8 abor9 OitSd
case out or lur p latuna
a s, the o o nr tr uo tlo
ror o r and
n ao-
quIsltlon 0r living quarter8 for teaahsrt roundby tho
trustees to be ressonabl7 neosrsatf.la tha aalntenanaa and
opntlon of the 8OhOO~8, held that tho authorIt *a# im-
pma rrom gonaral laws and rurther that the qu8stIon wad
~~017 one of po1107, 0sldnInistratlon to be aetmdnea by
th8 tt98tO88. It will be noted howaver, that Art1010 2797,
Vernon*8 civil Statutee, authorize4 bond8 to be ISSUSd for
tha ia0ntioal pUrpO80 0s building a home ror teachers, thus
giving a 1eglslatIva reoogcftlsn of tke possible axI8t8no~
0s ruoh neosssit.7 In certain cosmon or inaapnaent sohool
dIstrloto.
Tha general rule la that trusteea 0s lnde~ndeat
SChOOl al8triat8 po##s@# Ofdy the powers 0XQrOSSly oomm0a
by law or aeoa8aarIly Laplied rr00 the pouers conferrod. Ar-
ticle e756, Vernon’s Rarised Qtatutos; Earllngen Independant
SOhOOi DiStriOt 13. C. 8. PfigOand BZO., (CO&. rpp.) 48 9.x.
(2a) 9133,rersrAag (ciiil AQp8alS) 23 s.::. (2) 829; R0780
In&open&eat Sohool Metrlot TS. Ileinharat(cir. ~pp.) 159 8.
Y. 1010, error raru806.
ThW MS0 Of ~a68187 ~8. TrUSteeS Of COlvOe adO-
pm&ant soh001 DIStiiCt, supra, at06 by 70~ la 7our briar,
poesib ni8.8 th4 qUO#tiOE atallable SO-h001fUnd8
Of U8i.iig
ror ths 8notloa 0s the p~0p30a inprorsments. This oass,
houeror, on17 aonoerns a partlaular Ox~naitUre out 0s a sur-
QlUS @XiStbg in the naInt4nanoe aOh itma, and ia not an
authorIt on the.qUestIon subaItt96.
Whether 'SWirmPingpOO18' Or '003PIMitJ hOU8~8" 0011
br rr00t0a by the trustees and paid for out 0r arallablo rohool
fund@, 18 not a question upon which this arpsmfmt oaa render
Eoaorablo U. C. LoClaIa, Far0 4
aa op*I+ . Ufiny mia Ot8 lntor Ini? tho quortloa of ouoh
units being upheld a slaooossar7 in the 00nau0t 0s the pub-
ii8 OOhOOiw, suoh as the looal ~4468 and a4maaa ror their
010 as a nroo88ar7 and aocopta4 part 0s the 8ohool~8 ourrlou-
ium ma raoil1tio8. AS the oontrol or thr Wbllo r-0
8ohoo18 Of 7our di#triet, and the expenditure or rohool
iWAd an T48tOd b7 tho UgiShtUT. in the trUSt408, this
Departaent 18 not la the po8ItIon or SUOh trustees, dth
knowledge of all faots lssrntlal to pass upon tho quortlon
0r whother tho trwtorr oan oxpeaa the arallablo rohool
rmyt8ror the lreotlon of the above mentlonod reoreatlonal
.
four lttentloa is X%Sp4Otrtii7 on1146 to the pro-
rl8lon8 of Art1014 28020-1 vernon*s Revised Civil Statute@.
Indrpendeat rohool dIStri~t8, b7 the Q~vlSiOM 0s this ar-
tlole, ara authorlzod to bdld or purohasr bulldlngs and
yowl8 loo&e& wlthln or without the dlstrlot or oIt7, for
the purpose or oonrtruotlng gymnasia, 8tadIa, or other reore-
atloaal faOilitie8, by the 188uan08 or revenue bonds in-
oordanco with the prorl8Ion8 thereor. vnder this law, as
lnaotad by tb Fort7-sixth Leglslrture, the tru8toos 0s a
rohool 6iStrlOt are luthorixed to lreot a swimming pool aa
a oomunity houso by the lrsuanoo or bonds, obligatrd to k
paid who117 rrom revenuas obtain06 through the operation 0s
SUOh Swi#imingpOO1 and/Or 00.mUiunit7 house. It appears, how-
over, rroa an examlnatlon or this StatUt4, that no bonds
-7 be i8SR4d in looordanoe with the aot after two tsars
rromYaroh 85, loso it8 lrrOotir0 date. Art1010 le8Ot0,
supra, Seotlon l-7 Loluslte, oontemp1ate8 a r8a80nab10 oharge
and ruoh taoi1itla8 ma7 .bs op8n to the pub110 at a11 time
lxoopt when lt8~o~ratlons ma7 00nrii0t with their ill4 r0r
sOhO pUQO808, ilth thr trUSt4.0 Of tho 6iStTiOt having
8Up4~1810n and oontrol 0s aam*
YOU are thenfore r48p4Otfti17 8d7l8ed that it 18
the opinion oi this lmpartment, that tho truSte.8 Of the Con-
roe Independent 5ohool Dietriot are 8xpr08817 authorized to
.roOt a llIif~UUl~ pool, OODRMit7 hOU84, tM5iS OOWt, ltO.,
for the reoreatlonal US0 or tho pup118 within it8 di8triOt
during the sohool season and; through the summer season under
tho SU~~iSiOn in& OOntrO1 Of the SOho trUSt448, Ova 8uOh
Eonorablo w. C. UoClaIn, Fag* 5
reoreatlonal faollitIe8 to the u;e of t&J plbllo for whlah
a naronablo fee 18 to be ohargrd, under rna by virtue 0r
krtlelo 20024-1 vornon~s 8Wi846 Cltll statctter.
Tours rar7 truly
A8YI8tant
APPROVEDJUN
8, 1940
AT+ORNNGEMZRAL
OF TEXAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144057/ | Honorable Roland Bogd
County Attorney
Collin County
McKinney, Texas
Dear Sir: Attention Mr. flwight Whitwell
Opinion No. O-2332
Ii e: Should fees of officers ba
deposited with the county
depository each day instead
of every thirty days?
Your recent .request for an opinion of this depart-
ment on the above stated ouesticn has been received.
Your letter reads, in part, as follows:
"Our local county depository has made the
contention that all fees of officers should be
deposited with them as they are collected by the
officer instead of the officer waiting until the
end of each month and filing his report and mak-
ing his remittance to the uounty Auditor whc ;Fn
deposits the fees in the county depository.
other words, the depository wants this money de-
posited with them each day instead of waiting 30
days t
"In this connecticn I call your ottenticn to
Art. 3912E of the Civil Statutes, Subsection 5,
which provides that it shculd be the duty cf all
officers to charge and collect in the-manner auth-
orized by law all fees and commissions which are
permitted by law to be assessed and collected for
all official service performed by them: as and when
such fees are collected they shall be depcsited in
the officers salary fund. In the same article, sub-
section 0, the statute says that officers receiving
an annual salary as compensation for their services
Honorable Roland Soyd, page 2 O-2332
shall on or before the 5th day of each month
file with the County Auditor on forms prescribed
by him a detailed report of all fees collected
by him during the proceeding month and shall
forthwith pay into the officers’ salary fund for
his office all fees collected by him during said
month.
“Also in Subsection P of the sune statute we
find this language: lWhere any officer receives
a srlary payable from the salary fund created for
such officer, all fees, commissions and other
compensation received by him in his official ca-
pacity shall be by him deposited and paid monthly
or oftener into the salary fund created for such
officer and such remittance shall be accompanied
by his report thereof.
“These last two above quoted provisions appear
to apply only to counties in excess of 190,000 pop-
ulation as shown in Section 19 of the act. If our
conclusion on that is corr.err,t then the only langu-
age applying to our county would be the language
first quoted above from section 5 and this apparent-
ly couId be construed to mean that the officer would
have to report and pay their fees each day.
“Our officers have been filing the monthly re-
port and remittance s stemunder the supervision
and direction of our Eounty Auditor. We do not
find any court decisions under this statute upon
this question and are therefore unable to furnish
l brief of the matter, but it occurs to us that in
as much as the County depository is only entitled
to have all county funds deposited with it that the
question to be decidid is whether or not officers
fees under the present salary set-up become county
funds immediately upon being collected or whether
they only become county funds at the end of a 30
day period when the officer reports the collections
to the auditor..”
Sections 4 and 5 of article 3912e, Vernon’s Annotated
Civil Statutes, reads as follows:
“Sec. 4. In all counties of this State con-
taining a population of less than on hundred and
ninety thousand (190,000) inhabitants according to
the last preceding Federal Census wherein the county
Honcrable Roland hoyd, page 3 O-2332
or precinct officers are compensated on a salary
basis under the provieions of this act, there shall
be created a fund to,be known as the ‘Officerat Sal-
ary Fund of County, Texas. ) Such fund shall
be .Jcept soparnte and apart from all other county
funds, and shnll be held and diajwrsed for the pur-
:_- .pose of paying the salaries of officers and the sal-
aries of deputies, assistants and clerks of officers
who-are drawing a salary.from said fund under the
provisions of tLir;ilr;Act, and to pay the authorized
expenses of,thier offices. Such funds shall be de-
posited in the county depository and shall be pro-
tected to the same extend as other county funds.
"Sec. .5. It shall be the duty of sll officers
to charge and collect in the manner authorized by law
all fees and commissions which are permitted by law
to be assessed and collected for all official service
_ performed by them. As and.when such fees are co lected
_ they'.shall be deposited in the Officers~ Salary ~&d
or funds provided in this Act. In event the k!ominiaa-
loners' Court finds that the failure to collect any
fee or commission was due to neglect on the part of
the officer charged with the responsibility of col-
lecting same, the amount of such fee or commission
ahrll, be deducted from the sa&ry of such officer.
Before any such deduction is made, the Commissionerst
Court shnll furnish such ofi'icer with an itemized -
statement cf the un#Nected fees with which his ac-
count is to be char$edi and shall notify such officer
of the time and qirce for a hearing cn same, to de-
termine whether such officer wi$:,guil~jy"?fi,::~~~gli~ence,
which time for he*fing shall be at leastten days
subsequent to the dste of notice. Unless m officer
is charged by lavv with the responsibility of collect-
ing fees, the Commissioners' Court shall not in any
event make any deductions from the authorized salary
of such officer."
The two provisions of Article 3912i, quoted above,
apply to all counties containing a population of less than
190,000 inhabitants according to the last preceding Federal
census, wherein the county officers are compensated on a
salary basis. Collin County has a population of 46,180 in-
hab'ftants according to the last preceding Federal census, and
the county officials are compensated on an annual salary basis
therefoae, the above quoted provisions would be appiic(LbWto
said county.
In view of the foregoing statutes, you are respect-
Honorabla Roland fioyd, page 4 O-2332
fully advised that it is the opinion of this department that
when a county has selacted.&?@ounty depository in,the manner
required by law, all moniss collected by various county of?
ficials, should, as and when collected, be deposited in the
variousfunds to which they,ri@#ul~ly belong, in the county
depository.
APPRPPDy l$U&O 1940
ATTORNEY'GENERALOF TEXAS
APPROVEDOPINION COMMITTEE
BYBWF, CHAIRMAN | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150351/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
DAVID M. JOHNSON, )
)
Plaintiff, )
)
v. ) Civil Action No. 16 -cv- 0072 (TSC)
)
UNITED STATES OF AMERICA, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
This matter is before the Court on Defendants’ Motion for Summary Judgment, ECF No.
30. For the reasons discussed below, the Court grants the motion.
I. BACKGROUND
A. FOIA Requests to EEOC
On or about April 1, 2014, Plaintiff submitted a request under the Freedom of
Information Act (“FOIA”), see 5 U.S.C. § 552, to the Equal Employment Opportunity
Commission (“EEOC”). Compl. ¶ 19. Specifically, Plaintiff sought “MD-715 Reports for [the]
Internal Revenue Service seeking all data pertaining to Management Directive 715 from October
31, 2003 through December 31, 2013.” Id. According to Plaintiff, these reports reflect “policy
guidance which [EEOC] provides to Federal agencies . . . for their use in establishing and
maintaining effective programs of equal employment opportunity . . . under Section 717 of Title
VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973.” Id. ¶ 1.
1
EEOC assigned the matter a reference number (FOIA No. 820-2014-198608), and on
April 28, 2014, it sent Plaintiff a written response:
Your request for copies of records containing all data required to be
filed by the Internal Revenue Service with the [EEOC] in
accordance with Management Directive 715; specifically
information submitted to EEOC annually from October 31, 2003
through December 31, 2013, has been granted in part. The IRS has
not submitted its annual report for fiscal year 2013. As discussed,
we will provide you by email the responsive documents.
Defs.’ Mem. of Law in Support of Mot. for Summ. J. (“Defs.’ Mem.”), Decl. of Stephanie D.
Garner (“Garner Decl.”), Ex. 1 at 3; see Compl. ¶ 20. The response included instructions for
“fil[ing] a proper appeal from the determination under EEOC regulations, including the address
to which the appeal should be directed, information on how to identify the correspondence as an
appeal, the deadline by which the appeal must be submitted, and a link to further information on
EEOC’s website.” Garner Decl. ¶ 5. “[A] search of EEOC’s electronic FOIA records and paper
files” did not locate any “record of a properly filed appeal from the April 28, 2014
determination[.]” Id. ¶ 6.
According to Plaintiff, he submitted a second FOIA request to EEOC on or about
October 26, 2015 “seeking the . . . IRS MD-715 Report for the fiscal year ending December 31,
2014.” Compl. ¶ 23. A search of EEOC’s “electronic and paper records, including the archives
of the agency’s FOIA email account (FOIA@eeoc.gov), . . . found no record of a second FOIA
request, or any other correspondence, received from Plaintiff.” Garner Decl. ¶ 7. Upon EEOC’s
receipt of a copy of the motion for summary judgment Plaintiff filed in this civil action [ECF No.
11], EEOC staff “again searched the email archive for FOIA@eeoc.gov but found no record of
the October 26, 2015 email.” Id. ¶ 8. At this point, “because the copy of the request attached to
[Plaintiff’s summary judgment motion] provided EEOC with notice of the content of Plaintiff’s
attempted request, EEOC [staff] logged the request as received on April 4, 2016.” Id. ¶ 9.
2
EEOC granted the request, and on April 12, 2016, it released the requested records in full. Id.;
see id., Ex. 2. EEOC staff considered Plaintiff’s second FOIA request “somewhat ambiguous,”
and they “released the reports submitted by the IRS in 2014 and 2015, since both reports
contained information covering a portion of calendar year 2014.” Id. ¶ 9.
B. FOIA Request to the OPM
Plaintiff named the former Acting Director of the Office of Personnel Management
(“OPM”) as a defendant in this case. OPM staff was “asked to verify whether [OPM’s] EEO
office had answered a FOIA request from [Plaintiff].” Defs.’ Mem., Decl. of Yasmin A. Rosa
(“Rosa Decl.”) ¶ 5. A search of records maintained by the OPM’s EEO office, including “all
EEO complaints, inquiries and non-jurisdiction records for 2015 and 2016,” and “the EEO
inbox” where email requests would have been located, “did not produce any record(s) of a David
Johnson contacting EEO.” Rosa Decl. ¶ 6. Based on this search result, OPM “concluded that
[Plaintiff] has not reached out to the EEO Office requesting FOIA information or assistance.”
Id.
II. DISCUSSION
A. Dismissal of Parties and Claims
The Court construes the Complaint as one raising claims under FOIA against EEOC and
OPM. A claim under FOIA is against an agency. See 5 U.S.C. § 552(a)(4)(B); Cooper v.
Stewart, No. 11-5061, 2011 WL 6758484, at *1 (D.C. Cir. Dec. 15, 2011) (per curiam).
Therefore, the Court dismisses Beth F. Cobert, Victoria A. Lipnic, and John Doe as defendants in
this case, see Compl. ¶¶ 12-14, “because no cause of action exists that would entitle [Plaintiff] to
relief from them under . . . FOIA.” Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir.
2006).
3
In addition, the Court dismisses Plaintiff’s purported claim, see Compl. ¶¶ 33-34, under
the Administrative Procedure Act. “[T]he APA provides for judicial review of final agency
action only where ‘there is no other adequate remedy in a court.’” Kenney v. U.S. Dep’t of
Justice, 603 F. Supp. 2d 184, 190 (D.D.C. 2009) (quoting 5 U.S.C. § 704). Plaintiff’s challenge
to Defendants’ response to his FOIA requests is properly considered under FOIA, and “relief
under the APA is unavailable when [FOIA] provides an adequate remedy.” Edmonds Inst. v.
U.S. Dep’t of Interior, 383 F. Supp. 2d 105, 111 (D.D.C. 2005) (citations omitted).
Lastly, the Court dismisses Plaintiff’s purported constitutional claim. Plaintiff asserts
that “Defendants’ failure to provide Plaintiff with the information stated in the FOIA Request
violates . . . the Due Process Clause[.]” Compl. at 7. He offers a legal conclusion without
factual allegations to support it, and thus fails to state a plausible due process claim. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
B. Summary Judgment in a FOIA Case
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
ViroPharma Inc. v. Dep’t of Health & Human Servs., 839 F. Supp. 2d 184, 189 (D.D.C. 2012)
(citations omitted). The Court grants summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). Summary judgment in a FOIA case may be based solely on information
provided in an agency’s supporting affidavits or declarations if they are relatively detailed and
when they describe “the documents and the justifications for nondisclosure with reasonably
specific detail . . . and are not controverted by either contrary evidence in the record [or] by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
4
It appears that Plaintiff’s sole objection to Defendants’ motion is their “reliance on
inadmissible hearsay” in the supporting declarations. See Pl.’s Objection to Defs.’ Mot. for
Summ. J. at 5. Plaintiff asserts his “entitle[ment] to statistical data summarized on the official
business records maintained by . . . EEOC,” and he claims that “the version of facts proffered by
Defendants attempt[s] fraudulently to deny the existence thereof.” Id. at 4 (emphasis removed). 1
Further, Plaintiff suggests that the declarants not only must have personal knowledge of the
“actual computation of the statistical data” he requests, id., but also must authenticate the data,
see id. at 5. The Court understands Plaintiff to argue that Defendants cannot meet their burden
on summary judgment when the declarations on which they rely are made by individuals without
personal knowledge of the facts.
Ordinarily, a “declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). In a FOIA case,
a declarant need only “attest[] to [her] personal knowledge of the procedures used in handling
[Plaintiff’s] request and [her] familiarity with the documents in question.” Spannaus v. U.S.
Dep’t of Justice, 813 F.2d 1285, 1289 (4th Cir. 1987). “[O]ur circuit court long ago recognized
the validity of the affidavit of an individual who supervised a search for records even though the
affiant had not conducted the search [herself].” Brophy v. U.S. Dep’t of Defense, No. 05-CV-
360, 2006 WL 571901, at *4 (D.D.C. Mar. 8, 2006) (citing Meeropol v. Meese, 790 F.2d 942,
951 (D.C. Cir. 1986)).
Here, EEOC’s declarant makes her declaration “based on [her] review of the official files
and records of EEOC, [her] own personal knowledge, and information [she] acquired . . . through
1
The Court presumes that the MD-715 Reports Plaintiff has requested contain the “statistical data” to which he
refers in his opposition.
5
the performance of [her] official duties.” Garner Decl. ¶ 2. She attests to her familiarity with the
procedures followed in responding to FOIA requests to EEOC generally, and EEOC’s handling
of Plaintiff’s FOIA requests specifically. Id. ¶¶ 1-2. Similarly, OPM’s declarant makes “[t]he
statements in [her] declaration . . . based on [her] personal knowledge and upon information
available to [her] from [OPM’s] EEO archives.” Rosa Decl. ¶ 3. She, too, is familiar with the
agency’s procedures for handling inquiries, including FOIA requests. Id. ¶¶ 2, 5-6. Thus, each
declarant satisfies the personal knowledge requirement for purposes of the FOIA. See Pinson v.
U.S. Dep’t of Justice, 160 F. Supp. 3d 285, 294 (D.D.C. 2016); Gov’t Accountability Project v.
U.S. Dep’t of Justice, 852 F. Supp. 2d 14, 23 (D.D.C. 2012). Because the declarants demonstrate
their “general familiarity with the responsive records and procedures used to identify those
records,” they need not “independently verify the information contained in each responsive
record as Plaintiff suggests.” Barnard v. Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138-39
(D.D.C. 2008).
Furthermore, FOIA does not require that an agency provide explanatory materials. See
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 162 (1975) (holding that “insofar as the order of
the court below requires the agency to create explanatory material, it is baseless”). Nor does it
require that an agency authenticate or certify the contents of the records it releases. See Jackman
v. Dep’t of Justice, No. 05-CV-1889, 2006 WL 2598054, at *2 (D.D.C. Sept. 11, 2006) (finding
that “Plaintiff's questions about the authenticity and correctness of the released records are
beyond the scope of the Court’s FOIA jurisdiction”); see also Hedrick v. FBI, __ F. Supp. 3d __,
__, 2016 WL 6208361, at *8 (D.D.C. Oct. 24, 2016) (noting that plaintiff “cites no authority for
the proposition that, when challenged, an agency must authenticate or prove the veracity of the
content of a responsive record”).
6
1. EEOC Released the Requested Records In Full
EEOC has released in full IRS MD-715 Reports between October 31, 2003 and
December 31, 2012, see Garner Decl. ¶¶ 4-5, as well as the IRS reports submitted in 2014 and
2015, id. ¶ 9. It did not release the IRS MD-715 Report for the fiscal year ending December 31,
2013, because IRS had not yet submitted its report. See id. ¶ 5. EEOC did not violate the FOIA
by failing to disclose a record it did not have in its possession when it received Plaintiff’s April
1, 2014 FOIA request. See Defenders of Wildlife v. U.S. Dep't of the Interior, 314 F. Supp. 2d 1,
12 n.10 (D.D.C. 2004) (recognizing that records created after date-of-search cut-off date
established by agency regulation are not covered by request). Even if EEOC were to have
received an MD-715 Report from IRS for 2013 at some point after it responded to Plaintiff’s
April 1, 2014 FOIA request, EEOC would not have been obligated to release it. “The FOIA does
not require an agency to update or supplement a prior response to a request for records.” James
v. U.S. Secret Serv., 811 F. Supp. 2d 351, 358 (D.D.C. 2011), aff’d, No. 11-5299, 2012 WL
1935828 (D.C. Cir. May 11, 2012); see also Bonner v. U.S. Dep’t of State, 928 F.2d 1148, 1152
(D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-
response occurrences could create an endless cycle of judicially mandated reprocessing.”).
Plaintiff can prevail in a FOIA case only if he has demonstrated “that an agency has (1)
improperly (2) withheld (3) agency records.” Judicial Watch, Inc. v. Dep’t of State, 177 F. Supp.
3d 450, 454 (D.D.C. 2016) (citations omitted); see Perry v. Block, 684 F.2d 121, 125 (D.C. Cir.
1982). “Once the records are produced[,] the substance of the controversy disappears and
becomes moot since the disclosure which the suit seeks has already been made.” Crooker v.
United States State Dep’t, 628 F.2d 9, 10 (D.C. Cir. 1980) (per curiam) (citations omitted). Now
that EEOC has released all of the records Plaintiff requested, this FOIA claim is moot. See, e.g.,
7
Heily v. U.S. Dep’t of Defense, 896 F. Supp. 2d 25 (D.D.C. 2012) (dismissing as moot FOIA
claim of plaintiff who received the requested documents while civil action was pending), aff’d,
No. 13-5055, 2013 WL 5975876 (D.C. Cir. Oct. 16, 2013).
2. Plaintiff Did Not Submit a FOIA Request to OPM
“[E]ach agency, upon any request for records which (i) reasonably describes such records
and (ii) is made in accordance with published rules stating the time, place, fees (if any), and
procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. §
552(a)(3)(A). However, if the agency receives no FOIA request, the agency “has no reason to
search or produce records and similarly has no basis to respond.” Carbe v. Bureau of Alcohol,
Tobacco and Firearms, No. 03-CV-1658, 2004 WL 2051359, *8 (D.D.C. Aug. 12, 2004). The
Court concludes that Plaintiff had not submitted a FOIA request to OPM prior to filing this civil
action. 2 OPM has not failed to fulfill its obligations under the FOIA and, therefore, its motion
for summary judgment is granted. See Thomas v. Fed. Comm’cns Comm=n, 534 F. Supp. 2d 144,
146 (D.D.C. 2008) (granting summary judgment in the agency’s favor “[i]n the absence of any
evidence that plaintiff submitted a proper FOIA request to which defendant would have been
obligated to respond”); see also Antonelli v. Fed. Bureau of Prisons, 591 F. Supp. 2d 15, 26
(D.D.C. 2008) (noting that “[a]n agency’s disclosure obligations are not triggered . . . until it has
received a proper FOIA request in compliance with its published regulations”).
3. Segregability
2
In his motion for summary judgment [ECF No. 40], Plaintiff argues that OPM improperly withheld statistical data
he requested on April 11, 2016. See Decl. of David Johnson in Support of the Mot. for Summ. J. Against Defs.
[ECF No. 40-1] ¶ 1; see id., Ex. A; see also Pl. David Johnson’s Statement of Facts in Support of the Mot. for
Summ. J. Against Defs. [ECF No. 40-2] ¶¶ 1, 5. His original complaint, which the Clerk of Court received on
December 28, 2015, does not mention a FOIA request to OPM, and the OPM’s response to Plaintiff’s April 11, 2016
FOIA request is beyond the scope of this case.
8
An agency is obligated under FOIA to release “any reasonably segregable portion of a
record . . . after deletion of the portions which are exempt” from disclosure. 5 U.S.C. § 552(b).
Here, EEOC has not withheld any information contained in the MD-715 Reports it released to
Plaintiff. The Court concludes, then, that all reasonably segregable information has been
released.
III. CONCLUSION
Defendants have shown that there is no genuine issue of material fact in dispute regarding
their compliance with FOIA and that they are entitled to judgment as a matter of law.
Accordingly, the Court grants Defendants’ motion for summary judgment. An Order
accompanies this Memorandum Opinion.
DATE: March __, 2017
TANYA S. CHUTKAN
United States District Judge
9 | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130611/ | Honorable Dudley Harrison Opinion NO. (JR-858)
Chairman
Agriculture and Livestock Re: Responsibility of a
Committee hospital district to pro-
Texas House of Representatives vide medical care for
P. 0. Box 2910 the needy inhabitants of
Austin, Texas 78769 the district and related
questions (RQ-1199)
Dear Representative Harrison:
You have asked several questions regarding the
responsibility of a hospital district to provide medical
care for the needy inhabitants of the district. You pose
three questions regarding the Presidio County Hospital
-
District, which we restate as follows:
1. What are the definitions of 'needy'
and 'inhabitant of the district' as those
terms are used in the constitutional and
statutory provisions applicable to the
Presidio County Hospital District?
2. Who sets the standards to determine
whether someone is 'needy'?
3. May the Presidio County Hospital
District fund capital expenditures for a
hospital located outside the district?
The Presidio County Hospital District is a countywide
hospital district created under authority of article IX,
section 9, of the Texas Constitution. Acts 1965, 59th
Leg., ch. 643, at 1455. See V.T.C.S. art. 4494q. Article
IX, section 9, of the Texas Constitution provides in part:
-. The Legislature may by law provide for
the creation, establishment, maintenance and
operation of hospital districts . . . with
power to issue bonds for the purchase,
construction, acquisition, repair or renova-
tion of buildings and improvements and
equipping same, for hospital purposes . . .
p. 4153
Honorable Dudley Harrison - Page 2 (34-858)
providing that any district so created shall
assume full responsibility for providing
medical and hospital care for its needy
inhabitants . . . providing that after its
creation no other municipality or political
subdivision shall have the power to levy
taxes or issue bonds or other obligations
for hospital purposes or for providing
medical care within the boundaries of the
district. . . .
The statute creating the Presidio County Hospital
District provides in part:
Sec. 3. The District authorized to be
created by this Act is charged with the
responsibility of establishing a hospital or
a hospital system within its boundaries to
furnish hospital and medical care to the
residents of the District. . . . This
District shall provide all necessary
hospital and medical care for the needy
inhabitants of the District.
Acts 1965, 59th Leg., ch. 643, at 1455.
Other relevant constitutional and statutory provi-
sions are found in article IX, section 9A, of the Texas
Constitution and the Indigent Health Care and Treatment
Act (article 4438f, V.T.C.S.).
The Indigent Health Care and Treatment Act (the act)
provides for the medical care and treatment of indigents.
Definitions of residency and procedures for resolving
residency disputes are governed by sections 1.03 and 1.04
of the act. Section 1.05(b) of the act prohibits a
hospital district from denying or reducing medical
assistance to an eligible resident due to the person's
inability or refusal to contribute to the cost of the
assistance rendered.
According to the act, a hospital district must
provide the health care services required under the Texas
Constitution and the statute creating the district, and a
hospital district. is liable for such services as may be
required by the constitution and its enabling statute.
Sets. 11.01 and 12.01(b). A hospital district may arrange
to provide health care services through another health
care provider. Sec. 11.03(a). A hospital district may
also affiliate with other public hospitals or hospital
districts or with a governmental entity to provide
p. 4154
Honorable Dudley Harrison - Page 3 (JM-858)
regional administration and delivery of health care
services. Sec. 11.03(b).
The Texas Constitution was amended by adding article
IX, section 9A, in 1985 to permit the legislature to
determine the health care services a hospital district
must provide, the requirements a resident of the district
must satisfy to qualify for service, and any other
provisions necessary to regulate health care to hospital
residents. However, no legislation has been adopted
pursuant to this constitutional amendment.
Your first question concerns the meaning of the terms
"needy" and "inhabitant of the district" as those terms
are used in the pertinent constitutional and statutory
provisions. This office addressed this question in
Attorney General Opinion H-703 (1975). That opinion
equated a "needy inhabitant" with an "indigent resident."
Indigency, the opinion noted, cannot be translated into
precise income levels without resolving factual matters.
Such a determination is not appropriate to the opinion
process. Since the enactment of the Indigent Health Care
Act, hospital districts have been provided with necessary
guidelines to determine residency within the hospital
district. V.T.C.S. art. 4438f, §§1.03, 1.04.
The answer to your second question was also addressed
in Attorney General Opinion H-703. The opinion stated
that the initial determination of indigency is to be made
by the hospital district. Section 14 of the district's
enabling statute provides:
Sec. 14. A person who resides within the
District is entitled to receive necessary
medical and hospital care whether he has the
ability to pay for the care or not. The
Board shall by rule or regulation adopt a
procedure for determining the ability of a
patient to pay for his medical and hospital
care and for determining the amount each
patient shall be required to pay.
Acts 1965, 59th Leg., ch. 643, at 1460. Additional
guidance for the district in determining a resident's
indigent status is offered by section 1.06 of the
Indigent Health Care Act. While this provision is not
applicable to a hospital district, it may be useful to the
district in establishing its own eligibility standards.
Finally, you inquire about the authority of the
Presidio County Hospital District to make capital
p. 4155
Honorable Dudley Harrison - Page 4 (JM-858)
expenditures for a hospital located outside of the
district's boundaries. As we understand it, no hospital
facilities have been established within the boundaries -
of the Presidio Hospital District since its creation
,,pr;;mately twenty years ago. We note that the creation
district triggered the constitutional and
statutory prohibition against a municipality or political
subdivision within the district levying a tax or issuing
bonds for the purpose of providing medical care services
within the district's boundaries. See Tex. Const. art.
IX, 59; Acts 1965, 59th Leg., ch. 643, 53, at 1455.
Presidio County Hospital District has an absolute
obligation to provide medical services, but the district
has failed to establish the facilities within its
boundaries to accomplish this duty. Rather, residents of
Presidio County travel to a hospital that is operated by
another hospital district in an adjacent county to receive
medical treatment. The district is liable for the medical
expenses of its indigents. Attorney General Opinion Nos.
JM-540 (1986); JM-487, JM-257 (1984); H-703 (1975); M-171
(1967).
The Presidio County Hospital District is now being -.
asked by the other hospital district to assist in funding
construction and repairs of its facility. Standing alone,
the Presidio County Hospital District's enabling legisla-
tion appears to limit the use of taxes collected by the
district to the purposes enumerated in sections 3 and 9 of
the enabling statute. Providing funding for capital
improvements for a hospital located outside the district
would not appear to come within the prescribed uses for
the district's taxes. However, the district's enabling
legislation must be read and harmonized, if possible,
with the later adoption of the Indigent Health Care and
Treatment Act. In accordance with section 11.03 of the
Indigent Health Care and Treatment Act, a hospital
district "may affiliate with other public hospitals or
hospital districts or with a governmental entity to
provide regional administration and delivery of health
care services." Identical authorization for affiliation
by counties is provided by section 3.02(b) of the act.
TO "affiliate" means to associate as a member.
Webster's Ninth New Collecriate Dictionary 61, (1985).
Thus, the legislature, in enacting a comprehensive scheme
for the delivery of medical care to the state's indigent
residents, recognized the disparities in available
facilities throughout the state. To assist the affected
governmental entities which are required to provide
p. 4156
,
‘*. Honorable Dudley Harrison - Page 5 (JM-858)
indigent health care, the legislature authorized regional
service among the affected entities.
In our opinion, this authority to affiliate contem-
plates a broad range of possible agreements between the
entities involved. We cannot say that an affiliation that
results in one hospital district funding capital expendi-
tures for a second hospital district in exchange for the
provision of health care services is beyond the scope of
arrangements intended by the legislature. In our opinion,
therefore, section 11.03 of the Indigent Health Care and
Treatment Act authorizes the Presidio County Hospital
District to affiliate with a neighboring hospital district
in a manner that allows Presidio District to fund con-
struction and repairs for the second district's agree-
ment to provide medical care to the needy inhabitants of
Presidio County.
SUMMARY
The terms "needy" and "inhabitant" found
in Texas Constitution article IX, section 9,
and in the enabling legislation for the
- Presidio County Hospital District are eguiva-
lent to the terms "indigent" and "resident."
Absent legislative action pursuant to
article IX, section 9A, of the Texas Consti-
tution establishing eligibility requirements,
the Presidio County Hospital District must
determine whether a county resident is
indigent.
Presidio County Hospital District may
affiliate with another hospital district to
provide medical care to the needy inhabitants
of Presidio County. The agreement between
the affiliating entities may provide for
Presidio County Hospital District to fund
capital expenditures for the other hospital
district.
Very truly yours,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
p. 4157
Honorable Dudley Harrison - Page 6 (858)
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GIl.,PIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
p. 4158 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4124999/ | KEN PAXTON
ATTORNEY GENERAL OF TEXAS
February 16, 2016
The Honorable G. A. Maffett III Opinion No. KP-0065
Wharton County Attorney
100 South Fulton Street, Suite 105 Re: Definition of the term "site
Wharton, Texas77488 improvements" for purposes of section 501.103
of the Local Government Code, relating to an
economic development corporation's funding
of the same (RQ-0048-KP)
Dear Mr. Maffett:
You ask for an opinion on the meaning of the term "site improvements" under section
501.103 of the Local Government Code. 1 Specifically, you inquire whether a program of the
El Campo Economic Development Corporation ("Corporation") falls within the scope of the term.
See Request Letter at 2. You explain that the Corporation has created a "Revitalization and Site
Improvement Campaign" ("campaign") to promote certain businesses located in the City of
El Campo. Id. You tell us the campaign uses Corporation funds to "provide matching grants to
qualified El Campo businesses (both retail and industrial) to enhance their property and provide
visual improvements to their facilities." Id. Under the campaign, eligible improvements include
"exterior painting, glass replacement, general property clean-up or removal of debris, architectural
or accent lighting, new landscaping, and signage." Id. You inform us that the Corporation bases
its authority to use its economic development funds for this campaign on the term "site
improvements" contained in subsection 501.103(1) of the Local Government Code. Id. You ask
whether the Corporation's expenditures for these improvements qualify as site improvements
under section 501.103. Id. As this office has previously observed, the question whether a
particular expenditure of an economic development corporation is authorized is one that involves
fact issues and cannot be resolved in an. attorney general opinion. See Tex. Att'y Gen. Op. No.
GA-1066 (2014) at 1 (relating to the propriety of expenditures of a Type B economic development
corporation under chapters 501 and 505, Local Government Code). The question "is a matter in
the first instance for the corporation's board of directors." Id. at 2. Thus, we can advise you only
generally about the meaning of the term "site improvements." See id.
1
See Letter from Honorable G. A. Maffett III, Wharton Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at 1 (Aug. 17, 20 I 5), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable G. A. Maffett III - Page 2 (KP-0065)
A Type A economic development corporation is governed primarily by chapters 504 and
501 of the Local Government Code. 2 See TEX. Loe. Gov'T CODE§§ 504.001-.353 (governing
Type A corporations); id. § 501.002(15) (defining a Type A corporation as one governed by chapter
504). Under chapter 501 of the Local Government Code, a Type A "corporation is a constituted
authority for the purpose of financing one or more projects." Id. § 501.151; see also id.
§ 501.002(5) (defining corporation as a corporation organized under subtitle Cl, title 12, Local
Government Code). A "project" is a "project specified as such under subchapter C." See id.
§ 501.002(13); see also id. §§ 501.101-.108 (subchapter C). Subsection 501.103(1), about which
you ask, includes as a "project" those "expenditures that are found by the board of directors to be
required or suitable for infrastructure necessary to promote or develop new or expanded business
enterprises, limited to: (1) streets and roads, rail spurs, water and sewer utilities, electric utilities,
or gas utilities, drainage, site improvements, and related improvements." Id. § 501.103(1). This
office has previously determined that section 501.103 is an exclusive, or limited, list such that "an
expenditure ... that does not fall precisely within [its] contours ... is not an authorized project."
Tex. Att'y Gen. Op. No. GA-1066 (2014) at 3.
The term "site improvements" is undefined by chapters 501 and 504. And we find no
judicial opinion defining the term. Thus, we look to its ordinary meaning. See William Marsh
Rice Univ. v. Refaey, 459 S.W.3d 590, 593 (Tex. 2015) (stating that courts "give undefined words
'their common, ordinary meaning unless the statute clearly indicates a different result"'). "Site"
is commonly defined as "an area of ground on which a town, building, or monument is
constructed." NEW OXFORD AMERICAN DICTIONARY 1634 (3d ed. 2010). "Improvement" means
"an example or instance of improving or being improved" or a permanent enhancement. Id. at
875; Karisch v. Allied-Signal, Inc., 837 S.W.2d 679, 680 (Tex. App.-Corpus Christi 1992, no
writ) (defining "improvement" to "include everything that permanently enhances the value").
Together, the two words may be generally construed to mean the improvement or permanent
enhancement of an area of ground on which a town, building, or monument is constructed.
Subsection 501.103(1) provides additional, relevant context. Along with "site
improvements," subsection 501.103(1) lists other items for which an expenditure constitutes a
project. See TEX. Loe. Gov'T CODE§ 501.103(1). These terms-"streets and roads, rail spurs,
water and sewer utilities, electric utilities, or gas utilities, [and] drainage"-all relate to preparing
an area for development. Id. Noscitur a sociis is a canon of statutory construction providing "that
the meaning of a word or phrase, especially one in a list, should be known by the words
immediately surrounding it." Greater Houston P 'ship v. Paxton, 468 S.W.3d 51, 61 (Tex. 2015)
(citing TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex. 2011)). Given the
limited nature of the other items in subsection 501.103(1), the term "site improvement" should be
construed similarly to mean an improvement or permanent enhancement that relates to the
development of an area of ground on which a town, building, or monument is constructed. But,
as noted previously, it is for the Corporation's board of directors to determine, in the first instance
2You tell us the Corporation was created as a Section 4A Economic Development Corporation. See Request
Letter at I.
The Honorable G. A. Maffett III - Page 3 (KP-0065)
and subject to judicial review, whether the expenditures qualify as an improvement or permanent
enhancement that relates to the development of an area of ground on which a town, building, or
monument is constructed. 3 See Tex. Att'y Gen. Op. No. GA-1066 (2014) at 2-3 (citing Pearce v.
City of Round Rock, 78 S.W.3d 642-47 (Tex. App.-Austin 2002, pet. denied) (utilizing abuse of
discretion standard to review decision of city's development review board)).
3 We address only the definition of the term "site improvements." See Request Letter at 1-2. We cannot
opine about the ultimate determination of whether the Corporation's expenditures in furtherance of the campaign
properly constitute a p.r:oject under subsection 50 I. I 03(1 ). See TEX. Loe. Gov'T CODE § 501.103( I) (requiring an
expenditure to be "required or suitable for infrastructure necessary to promote or develop new or expanded business
enterprises"). This determination is also one for the Corporation's board of directors. See Tex. Att'y Gen. Op. No.
GA-I 066 (2014) at 2.
The Honorable G. A. Maffett III - Page 4 (KP-0065)
SUMMARY
Under subsection 501.103(1) of the Local Government
Code, the term "site improvement" should be construed to mean an
improvement or permanent enhancement that relates to the
development of an area of ground on which a town, building, or
monument is constructed. The question whether any particular
expenditure constitutes a project under section 501.103 is a question
in the first instance for the board of the economic ·development
corporation to determine.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee | 01-03-2023 | 02-10-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130368/ | September 25, 1989
Honorable John T. Montford Opinion No. JR-1101
Chairman
State Affairs Committee Re: Whether a farm-to-market
Texas State Senate road is a "state highway" for
P. 0. Box 12068 purposes of right-of-way acgui-
Austin, Texas 78711 sition under section 4.301(c)
of article 6702-1, V.T.C.S.
(RQ-1708)
Dear Senator Montford:
you ask whether farm-to-market roads are "state high-
ways" within section 4.301(c) of article 6702-1, V.T.C.S.,
which provides that the state shall pay 90 percent of the
cost of acquiring right-of-way for state highways. The
State Department of Highways and Public Transportation has
not viewed farm-to-market roads as state highways within
that provision, and the counties have traditionally paid the
full cost of right-of-way acquisition.
The provision you inquire about is part of the County
Road and Bridge Act. V.T.C.S. art. 6782-1, 5 1.001. Section
4.301(a) of this act authorizes the commissioners court to
condemn land which the State Highway and Public Transporta-
tion Commission determines is needed for a state highway.
Section 4.301(c) makes the following provision for payment
for right-of-way secured for certain highways:
In the acquisition of all rights-of-way
authorized and requested by the State Depart-
ment of Highways and Public Transportation
in cooperation with local officials for all
hiahwavs desianated bv the State Hiahwav and
7 ‘C as U 't
States or state hiahwavs, the State Depart-
ment of Highways and Public Transportation
is authorized and directed to pay to the
counties and cities not less than 90 percent
of the value . . . of the requested right-of-
way . . . . (Emphasis added.)
p. 5761
Honorable John T. Montford - Page 2 (JM-1101)
The question before us is whether farm-to-market roads
are designated as state highways within section 4.301(c) of
article 6702-1, V.T.C.S. Some consideration of the role of
farm-to-market roads in the network of Texas highways and
roads will help us to answer this question.
Farm-to-market roads are generally rural roads that may
be jointly constructed and maintained by the state and
counties. 36 D. Brooks, County and Special District Law
5 40.23 (Texas Practice 1989). They carry local traffic and
serve as feeder roads between the major highway system and
local county roads. Texas Legislative Council, T&w~s Roads
and Hia- 37, 46, 136'(0ct. 1952) (Staff Research Report
52-3). The state began a program of building farm-to-market
roads in response to public demand that it take some action
to insure all-weather surfaces on the more important local
roads. Texas Research League, A Program for Texas Highways:
A Digest of a Report to the Texas State Highway Commission
(1957). A 1943 enactment authorizes the highway commission
to designate "any county road in the state as a farm-to-
market road for purposes of construction, reconstruction,
and maintenance . . . .'I Acts 1943, 48th Leg., ch. 244, at
365 (codified as V.T.C.S. art. 6673c).l Counties may levy
an ad valorem tax to fund the construction of farm-to-market
roads and may use the tax revenues in cooperation with the
highway department to acquire rights-of-way for and to build
and maintain such roads. Tex. Const. a*. VIII, 0 l-a:
V.T.C.S. art. 6702-1, 8 4.103 (implementing legislation);
Attorney General Opinion V-1169 (1951).
A farm-to-market road fund is established by section
4.002 of article 6702-1, V.T.C.S., to finance the construc-
tion, improvement, and maintenance of farm-to-market roads
by the highway department. The fund is to be used for a
system of roads selected by the State Department of Highways
and Public Transportation after consultation with the
commissioners courts of the counties as to the most needed
roads in the counties. V.T.C.S. art. 6702-1, 5 4.002(c).
The roads "shall serve rural areas primarily" and "shall not
be potential additions to the federal aid primary highway
1. Article 6673c, V.T.C.S., appears to be one of a
series of enactments which shifted most of the costs of
providing highways and roads from the counties to the state.
See aeneu Jefferson Countv v. Board of Countv and Dist.
. debtednesa 182 S.W.Zd 908, 912 (Tex. 1944): see al o
V.T.C.S. arts. 6k70, 6673, 6674b, 6674q-2, 6674q-4; Attorn&
General Opinion V-1115 (1950).
p. 5768
Honorable John T. Montford - Page 3 (JM-1101)
. .
system . . . .I* & 5 4.002(d). They are moreover to "be
capable of early integration with the previously improved
road svstem, and at least one end should connect with
a road already or soon to be improved on the State svstem of
w.n Zg, 5 4.002(d)(5) (emphasis added).
The provisions on building and financing farm-to-market
roads generally refer to them as roads, and not state
highways, thus suggesting that they are not state highways
within section 4.301(c) of article 6702-1, V.T.C.S. These
roads primarily serve local needs for transportation and for
access to other state roads, rather than the needs of
traffic going through the county or the state. Thus, in
acquiring the right-of-way for a farm-to-market road the
county is ordinarily paying a cost of a facility that will
principally benefit local users. Both the language and the
purposes of farm-to-market legislation persuade us that
these roads are not state highways for which the state must
reimburse right-of-way costs under section 4.301(c).
The circumstances under which the predecessor of
section 4.301(c), article 6702-1, V.T.C.S., was enacted and
its legislative history also support our construction of
this provision. Section 4.301(c) derives from former
article 6673e-1, adopted in 1957 to authorize the highway
department to spend money for "the purchase of rights of way
for certain highways under certain conditions . . . .I8 Acts ,,
1957, 55th Leg., ch. 301, f 1, at 731 (title). Before 1957,
local governments had to nav the entire cost of riaht-of-wav
for state highways. Texas- n-New Hiahwav Riaht-Of-W& Policv
TEX. RESEARCH LEAGUE ANALYZES, July 17, 1957. In that yea;
the legislature changed this practice by adopting House Bill
620, codified in part as article 6673e-1, V.T.C.S., and
later recodified as section 4.301(c) of article 6702-1,
V.T.C.S.
A contemporary report on Texas highways prepared by the
Texas Research League at the request of the highway commis-
sion proposed a solution to the "right-of-way problem"
that was subsequently adopted as House Bill 620. Texas
Research League, A Program for Texas Highways: A Report to
the Texas Highway Commission, ch. V, "The Right of Way
Problem" (1957). The report recommended that the State
Highway Commission establish a policy of paying a percentage
of the cost of right-of-way on interstate highway system
projects and primary and secondary state highway system
projects. & at 65. It also recommended that the highway
commission "continue to require local governments to
purchase or otherwise provide the right-of-way for state
farm and ranch to market roads." ;EBtat 67. The report
explained its different treatment for farm-to-market roads
p. 5769.
Honorable John T. Montford - Page 4 (JM-1101)
on the ground that most of them were built, at least in
part, along rights-of-way originally used for a county road.
The amount of additional right-of-way required could usually
be obtained at nominal cost and in many cases would be
donated by the abutting land owners "who are after all, the
primary beneficiaries of the project." & 1
Section 1 of House Bill 620 appears to embody the
suggestions of the Texas Research League report as to
providing reimbursement for costs of acquiring right-of-way
for interstate highways and major state highways, but not
for farm-to-market roads.3 When the bill was being
considered at second reading by the House, the following
amendment was proposed and rejected:
Section 4. The provisions of this act
shall also apply to the county expended costs
of right-of-ways and right-of-way easements
of Farm to Market Roads changed to State
designated Highways within ten years of their
construction.
H.J. of Tex., 55th Leg., Reg. Sess. 2435 (1957). The text
of the rejected amendment indicates that farm-to-market
roads are not state designated highways within section 1 of
Rouse Bill 620, which became article 6673e-1, V.T.C.S.
Thus, section 4.301(c) of article 6702-1, V.T.C.S., which
carries forward the language of section 1 of House Bill 620,
does not apply to farm-to-market roads.
There are cases construing the predecessor of sub-
sections 4.301(a) and 4.301(b) of article 6702-1, V.T.C.S.,
which hold that a farm-to-market road is part of the state
highway system. &8 Bolin Braz ria County , 381 S.W.2d
206 (Tex. Civ. App. - Hous& 19645)no writ): :Moodv Cotton
2. Senate Bill 1528 of the 71st Legislature shows that
donation of right-of-way for farm-to-market roads is not a
thing of the past. Acts 1989, 71st beg., ch. 706, at 3238
(to be codified at Local Gov't Code 8 43.032). It
authorizes a home-rule city to annex a certain area crossed
by the proposed route of a farm-to-market road if the
landowner has donated or is committed to donate the
right-of-way necessary to construct the road.
3. The other provisions of House Bill 620 related to
financing the state's acquisition of rights-of-way. Acts
1957, 55th Leg., ch. 301, f8 2, 3, at 732-735.
.P.~5770
Honorable John T. Montford - Page 5 (JM-1101)
. .
(Tex. Civ. App. -
Fort Worth 1953, v. a s our&y
243 S.W.2d 277 (Tex. Civ. ADD. - Waco 1951, no writ). Sub:
sections (a) and (b) of s&ion 4.301 derive from a 1925
enactment, former article 6674n, V.T.C.S. Acts 1925, 39th
Leg., ch. 186, 5 14, at 458. A 1929 amendment to article
6674n, V.T.C.S., authorized a commissioners court to secure
and pay for right-of-way for state hiqhwavs. Acts 1929,
41st Leg., 3d CIS., ch. i0, at 243. a, Woodv Cotton co.,
and Bolin addressed ouestions about the authoritv of a
commissioners court to-condemn property for a farm-to-market
road on behalf of the state under former article 6674n,
V.T.C.S. Their statements characterizing farm-to-market
roads must be read in that context.4 None of the cases
addressed state reimbursement of right-of-way costs under
former article 6673e-1, V.T.C.S.
In w, condemnation proceedings were filed by the
state through the commissioners court of Palls County to
condemn land for a farm-to-market road. The property owners
argued that the state could not condemn land for a farm-to-
market road under former article 6674n, V.T.C.S., which
authorized condemnations of land for roads to be included in
the designated state highway system. Since a farm-to-market
road was a local road and not part of the designated highway
system, the plaintiffs claimed that it could not be con-
demned under that statute. The court found that the highway
4. Attorney General Opinion V-1282 (1951) also
addressed the correct procedure for condemning land for
farm-to-market roads. The opinion concluded that the county
should institute the proceedings in its name and not the
name of the state, because eminent domain proceedings were
required by statute to be instituted in the county's name
except as to land condemned under article 6674n, V.T.C.S.,
for a ."'designated State Highway,* which term does not
include farm-to-market roads.@' Attorney General Opinion
V-1282, at 3 (1951). Since the county acquired title to the
land as agent for the state, condemnation proceedings for
rights-of-way for farm-to-market roads brought by the
commissioners court in the name of the state were not
necessarily void, but the opinion reserved discussion of
this question, which had not been asked. 1nUl.L MOOdV,
and Bolin, the commissioners courts had instituted pro-
ceedings in the name of the state to condemn land for
farm-to-market roads, and the courts had to address the
application of article 6674n, V.T.C.S., to those pro-
ceedings.
p. 5771
Honorable John T. Montford - Page 6 (JM-1101)
commission had implied authority under article 6673c,
V.T.C.S., to condemn land for farm-to-market roads.
Moodv Cotton Co . also involved a suit by the commis-
sioners court to condemn land on behalf of the state for a
farm-to-market road. The court held that former article
6674n, V.T.C.S., authorized the commissioners court "to
condemn land in the name of the State for right of way
purposes necessary or convenient to any road in the State
Highway System to be constructed, reconstructed, widened,
straightened or lengthened and that Farm-to-Market Road No.
455 is such a road." Moodv Cotton Cot, m, at 206.
Thus, the court in Moodv Cotton Co. concluded that a
farm-to-market road was a road in the state highway system
for purposes of article 6674n, V.T.C.S., while the a
court did not. noodv and a were decided prior to the
enactment in 1957 of former article 6673e-1, V.T.C.S.
Belln, on the other hand, arose after the reimbursement
requirement was adopted. In Bolin, the Highway Department
had agreed to build a farm-to-market road in Brazoria County
if the county would furnish the right-of-way free of cost to
the state. The county's eminent domain suit was contested
on the ground that the road in question was a county road
and the commissioners did not follow the correct procedure
for condemning land for county roads. The court stated as
follows:
The order of the Highway Commission . . .
provides that when the proposal has been
accepted by Brazoria County it is ordered
that a Farm to Market Road be designated
along said route. It was a road, exceat f r
the riaht of way to be constructed undzr
contract by the &ate at its expense. . . .
This designation of a Farm to Market Road
suffices to make it a part of the Highway
system.
a, a, at 209.
Thus, the farm-to-market road in Bolin was part of the
state highway system for purposes of condemning the right-
of-way, but the state was not to pay any of the cost of
acquiring the right-of-way. The holdings of u, Moodv
Cotton CO-, and w are not inconsistent with our reading
of section 4.301(c) of article 6702-1, V.T.C.S. That
provision does not require the state to reimburse counties
for 90 percent of the cost of acquiring right-of-way for
farm-to-market roads.
p. 5772
. Honorable John T. Montford - Page 7 (JM-1101)
' ,
Farm-to-market roads are not "state high-
ways08for purposes of section 4.301(c) of
article 6702-1, V.T.C.S., which requires the
State
- Department
. .. of Highways and Public
Transportation to pay 90 percent of the cost
of rights-of-way acquired by counties and
cities for "highways designated by the State
Highway and Public Transportation Commission
as United States or state highways."
Zky&
MATTOX
Attorney General of Texas
.MARYNRLLER
First Assistant Attorney General
LCUMCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEARLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 5773 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130374/ | THE ATTORNEY GENERAL
OF TEXAS
September 18, 1989
Honorable Elizabeth C. Jandt Opinion No. JR-1095
Guadalupe County Attorney
105-A North Austin Re: Validity of contract for
Seguin, Texas 78155 library services (RQ-1647)
Dear Ms. Jandt:
You have asked several questions about a 1964 contract
for library services executed by both the City of Seguin
(the city) and Guadalupe County (the county) as parties, as
well as by the Board of Trustees of the Seguin and Guadalupe
County Library (the board).
The contract, YOU advise, recites that the county
theretofore established the board to supervise the erection
of a library building and to manage the library to be housed
there. By the terms of the agreement, the board agreed to
render free library service for all Guadalupe County under
the authority of article 1694, V.T.C.S. The provisions of
that statute are now embodied in section 323.011 of the
Local Government Code, a nonsubstantive revision of the
former law. &g Acts 1987, 70th Leg., ch. 149, at 1129.
For its part, the city agreed, among other things, to
the erection of the building on city-controlled and city-
maintained property, and promised to relinquish to the
board, as necessary, control of the grounds (which the city
would continue to maintain nevertheless). According to the
agreement, you explain, the board was to be appointed by the
commissioners court of the county "with the consent and
approval" of the city council. The board was to regularly
furnish the city and county with financial statements and
submit budgets for their approval. The city and county
expressed an intention to undertake certain financial
obligations to support the board's operations.
In 1975, we understand, certain "by-laws" proposed by
the board were adopted by both the city and the county as
"amendments to the contract," altering, among other things,
the manner in which board members were selected. In 1988,
however, the commissioners court of the county voted to
P- 5737
Honorable Elizabeth C. Jandt - Page 2 (JM-1095)
rescind the "by-law" amendments. The city has not joined
the county in that action, nor has the board agreed to it.
You ask, first, about the validity of the 1964
agreement: second, about the validity of the 1975 *'by-law@*
amendments to the agreement; third, about the effect upon
the arrangement of the 1971 enactment of the Interlocal
Cooperation Act; and, finally, about the effect of the 1988
rescission vote by the county commissioners.1 We need not
address your first question about the original validity of
the 1964 agreement because we have concluded that the 1975
adoption of the @'by-lawl* amendments to the agreement
amounted to ratification of an arrangement sanctioned by the
Interlocal Cooperation Act in 1975, whether or not the
arrangment was sanctioned by law prior to the enactment of
that statute.
The City of Seguin has been a home-rule city since
1971. Home-rule cities have general authority to include in
their charters any power so long as it is not inconsistent
with the constitution or general laws enacted by the
legislature. Tex . Const. art. XI, 5 5; Local Gov't Code ch.
9; Forwood v. Citv of Tavlor, 214 S.W.2d 282 (Tex. 1948).
The powers of counties are not so far-reaching and are often
said to depend on authorization by the constitution or the
legislature. See 35 D. Brooks, County and Special District
Law !j5.11 at 151 (Texas Practice 1989).
In 1968 the Texas Constitution was amended to add
article III, section 64(b), reading:
(b) The county government, or any polit-
ical subdivision(s) comprising or located
therein, may contract one with another for
1. Our response to your request is based upon the
above-cited allegations of fact reported to us. It should
not be construed as a confirmation of their accuracy. The
attorney general does not determine fact disputes in the
opinion process. Our conclusions are not based on an
independent examination of the contract and other
instruments supplied with your request. We have made no
independent legal analysis of their effect but have,
instead, for purposes of this opinion, accepted your
representation of the facts surrounding them and their
intended legal consequences.
P. 5738
Honorable Elizabeth C. Jandt - Page 3 (JM-1095)
the performance of governmental functions
required or authorized by this Constitution
or the Laws of this State, under such terms
and conditions as the Legislature may
prescribe. No person acting under a contract
made pursuant to this Subsection (b) shall be
deemed to hold more than one office of honor,
trust or profit or more than one civil office
of emolument. The term "governmental
functions,1' as it relates to counties,
includes all duties, activities and
operations of statewide importance in which
the county acts for the State, as well as of
local importance, whether required or
authorized by this Constitution or the Laws
of this State.2
And in 1971, the legislature enacted the Interlocal
Cooperation Act, specifying that
Any local government may contract or agree
with one or more local governments to perform
governmental functions and services under
terms of this Act.
V.T.C.S. art. 4413(32c), § 4(a). Library services were
expressly included in the definition of "governmental
functions and services." Id. § 3(2).
Thus, at the time the 1975 *@by-law*@amendments to the
contract were adopted, both the city and the county
possessed full authority to contract with each other for
the establishment and operation of a public library, whether
or not they possessed it before that time. The provisions
of the Interlocal Cooperation Act were made "cumulative of
all other laws or parts of laws, general or special." Id.
§ 7.
2. Some confusion exists as to whether subsection (b)
originally applied to all counties or only to those counties
(Tarrant, El Paso) to which subsection (a) applied, but the
matter was mooted in 1970 when subsection (a) was amended to
apply to all counties. -1 Braden, The Constitution of
the State of Texas: An Annotated and Comparative Analysis,
at 294 (1977).
P. 5739
Honorable Elizabeth C. Jandt - Page 4 (JM-1095)
If we assume that the contract between the city and the
county was unenforceable and void at the time it was made in
1964 because one or the other (or both) of them was acting
ultra vires, still, counties and cities may ratify a
contract which they might lawfully make at the time of such
ratification although they had no such power when the
contract was executed. See 56 Am. Jur. 2d Municiual
Coruoration , C nties. and Other Political Subdivisions
5 509 at 56: (lzyl) ; 14 Tex. Jur. 3d Contracts § 144 at 243.
In Jcutzschbach v. Williamson County 118 S.W.2d 930
(Tex. Civ. App. - Austin 1938, writ disA#d) the commis-
sioners court, without a written contract Lr written
request from the owner of the land, entered an o:der that
certain terracing work be done although a statute permitted
such county work only "after request in writing by the owner
of the land." (There was, instead, merely an oral agreement
struck by the land owner and one of the commissioners.)
Thus, the contract was ultra vires, but when the land owner
refused to pay for the work, the commissioners court
instituted suit, which, according to the appellate court,
amounted to a ratification of the contract, rendering it
valid. See also Williams v. Pure Oil co., 78 S.W.2d 929
(Tex. 1935); Mobile Electric Co. v. Citv of Mobile, 79 So.
39 (Ala. 1918).
In our opinion, by adopting the "by-law" amendments to
the 1964 agreement in 1975, after the passage of the
Interlocal Cooperation Act permitted such contracts to be
legally made, the county and the city confirmed and ratified
their arrangement, as modified by the "by-law" amendments,
curing any ultra vires defect that might have caused the
original agreement to be unenforceable.
We do not pass upon the particulars of the 1975
"by-lawsl' amendments. We merely advise that it was within
the power of the city and county in 1975 to revise their
pre-existing agreement and, by doing so, to ratify and
validate the arrangement between them.
On the basis of the information furnished us, it
appears that the attempted unilateral rescission of the
agreement by the county commissioners court in 1988 was
ineffective. Assuming that the original 1964 contract was
invalid as ultra vires, it was originally subject to
disaffirmance at the election of the county. But after the
county elected in 1975 to affirm and ratify the agreement by
adopting the *'by-lawV1amendments thereto, the arrangement
was thereafter the subject of a binding contract that could
P. 5740
Honorable Elizabeth C. Jandt - Page 5 (JM-1095)
not be cancelled arbitrarily by the commissioners court
alone. See 14 Tex. Jur. 3d Contracts §!j 322-328 at 546; 10
Tex. Jur. 3d Cancellation and Reformation of Instruments
§ 53 at 557.
SUMMARY
It was within the power of the City of
Seguin and the County of Guadalupe in 1975 to
revise and ratify a pre-existing 1964
agreement between them regarding library
services. Even if the original 1964
agreement between them was originally invalid
as ultra vires, ratification in 1975 was
effective because the Interlocal Cooperation
Act authorizing such agreements had become
law. After such ratification, the agreement
was not subject to unilateral rescission and
cancellation by the county.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
P- 5741 | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4150420/ | J-A05009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL LOWMAN :
:
Appellant : No. 135 WDA 2016
Appeal from the Judgment of Sentence December 22, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001423-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 06, 2017
Appellant, Michael Lowman, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial convictions for simple assault, recklessly endangering another person,
official oppression, and conspiracy.1 For the following reasons, we dismiss
the above-captioned appeal as duplicative.
As a general rule, this Court has jurisdiction over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in a
____________________________________________
1
18 Pa.C.S.A. §§ 2701(a)(1), 2705, 5301(1), and 903, respectively.
J-A05009-17
criminal case files a timely post-sentence motion, the judgment of sentence
does not become final for the purposes of an appeal until the trial court
disposes of the motions or the motions are denied by operation of law.
Commonwealth v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). The
denial of a timely post-sentence motion is the triggering event for filing a
notice of appeal. Pa.R.Crim.P. 720(A)(2). When an appellant files a notice
of appeal before the trial court has ruled on the post-sentence motions, the
judgment of sentence has not yet become “final,” and any purported appeal
is interlocutory and unreviewable. Borrero, supra. The proper remedy
would then be to quash the appeal, relinquish jurisdiction, and remand for
the trial court to consider the post-sentence motions nunc pro tunc. Id. at
161. On the other hand, if the trial court denies an appellant’s post-
sentence motions while his appeal is pending, we will treat the premature
notice of appeal “as having been filed after entry of [an] order denying post-
sentence motions.” See Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n. 4 (Pa.Super. 2011).
Instantly, the court sentenced Appellant on December 22, 2015, to an
aggregate term of four years’ probation. Appellant timely filed post-
sentence motions on December 30, 2015. On January 21, 2016, Appellant
filed a premature notice of appeal, before the court ruled on his post-
sentence motions. The premature appeal was docketed at No. 135 WDA
2016. The court ordered Appellant on January 29, 2016, to file a concise
-2-
J-A05009-17
statement of errors complained of on appeal per Pa.R.A.P. 1925(b);
Appellant filed it on February 18, 2016. While the appeal at No. 135 WDA
2016 was pending, Appellant’s post-sentence motions were deemed denied
by operation of law on April 29, 2016. Inexplicably, Appellant filed another
notice of appeal which was docketed at No. 791 WDA 2016. The trial court
again ordered and Appellant filed another Rule 1925(b) statement. Absent
the second appeal, we could have related Appellant’s premature notice of
appeal at No. 135 WDA 2016 forward to April 29, 2016, the date his post-
sentence motions were deemed denied by operation of law, in order to
resolve any jurisdictional impediments. See id. As it stands, however,
Appellant now has two appeals before this Court, one of which is duplicative.
Appellant has briefed both appeals in an identical manner. Each appeal has
a separate docket number and journal number. Accordingly, we will proceed
with the appeal docketed at No. 791 WDA 2016 (J-A05011-17) and dismiss
the above-captioned appeal docketed at No. 135 WDA 2016 (J-A05009-17)
as duplicative.
Appeal dismissed as duplicative.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2017
-3- | 01-03-2023 | 03-06-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4144091/ | OFFICE OF THE ATTORNEY GENERAL OF TEXAS .
AUSTIN
Bon. w. x. Ncclain
Criminal Dirtriot Attorney
Willlameaa oountr
Oeorgetown, Tern&
your aounty 8aa three 0
combinedto formarwal
opinion in reaponae to t
Sahool Mstriat
as pentiotledi ‘0 Annotated
Statutes aaaept by the County Tax
bese8sorT
oaedure for the pro-
001 Mstriata to have
on what lc@tallration
tory that the mard of Tru.%teelr
1 Mstriat ae provided for b.
rnon@8 Anuotatod Statutes appoint
tion for the purpose of equallring
iat$ or, 3.8thlr proaedure optIona
rd where they prefer to aaaept the
anassssent Fsadeby the County Tax Atmea1)ort”
Ax’tlcls3mb, Revised Civil Statuteo, providea that
“rural high ochool dlatrlata 8s pro’lldedSOP ln the pnaediug
Hon. W. JC.WoClain, Page 2
article shall be classed a8 oomon school dlstMct2."
Article 2795, Civil statutee, read2:
"The oomI8alonere court, at the tlmb of lovying
taxeo for county purposes, 8hall also levy upon all
taxable property vithin any common school dletrlot
the rate of tax uo voted If a specific rate has been
voted1 othervise lrafdaourt ahall levy suah a rate
within the limit 80 voted a8 ha3 been determlned by
the board of trustees of said dlstriot and the county
8uperlntendent and certified to said court by the
aounty superintendent. If such tax has been voted
after the levy of oountp taxes, It shall be levied
at any meting of laid oourt prior to ths delivery
of the assessment rolls by the assessor. The tax
as8esmor shall ~8088 said tax as other taxer are
assessed and make an abstract shoving the amount
of apeolal taxes as8eased agalnat each school district
in his county and i'urtiuhthe same to the county
auperintendont on or before the first day of'Septom-
her of the you for vhioh 8uch taxe8 are assessed.
,~_.
The taxes levied upon the real property in erold
distriots shall be a Men thereon and the aamc1
oh811 be aold for unpaid taxes in the manna- and at
the time of sales for 3tat.eand oountg toxos. The
tax oolloctor shall oolleot 8aid taxes aa other
tax08 an colleoted. The tax a88essor ohall ce-
aelve a aommis8lon oi one-half of one per cent. for
rs8e8slng suah tax and the tax collector a aommls-
eion of one-h8lt of one per omit. for colleoting
the 8ILIw. The tax collector shall pay all ruoh
taxea to the oountytreaourer,and said treasurer
rhall aredit eaah sahool district vith the smount
belo lrrgto it, and psy out the aama In accordance
rlthYiw.n
Artiole 2922L, Vernon's Civil Statutes, provides in
part;
n ... The board of truetoes cf any rural hlgb
school dlstrlot w%y appoint an assessor of taxes
vho shall assess the taxable property within the
linlts of said diatriot within the ti.moprovided
by existing laws, and errldasaeslmsnt shall be
equalized by the board of equalltation composed of
three (3) members appointed by the board of trustees
of eald dietriot. The said board of equallaation
seals be composed OS legally quallf'ledvoters
r@sIdIng j,nsaid district, and shall h~vS the SMso
Hon. Y. X. PWlaln,~Page 3
parer and authority, and be subjsat to the muw
~e8tXlCtlOm that nov govern such boards in ad~pen-
dent School districts. The t8x asaes8or herein
provided for Shall receive such compensation for
hf8 lO~ViCOSas the tlw8tees of said dfstriat my
8lloV, not to exoeod two (2) per cent of taxer
ae8038ed by him. The aounty tax oolleotor shall
collaat such tax and shall moelve one-half of
on8 per cent for hla services for coll.mt~ 8uoh
tax. Suah tax vhen oollooted Shn11 be depoalted
in th8 COWlty depoaltoxy to the credit of Such
ruml high eohool district. The tax a8seasor
herein provided for aha11 make a complete list af
all assessments made by him, and when apprmre&hy
the board 0s txurtoos shall be submitted to the
county tax oalleator not titer than September 1st
of each yem."
Without thenspeoial provl8lon8 oontaimd ln Article
29225 authorising rUz=alhigh sohool district8 to appoint their
own asse8eora (and boards of equalization), such diStriat8 being
classed us commn school districts by Artlolo 2922b would be
governed by the lava relating to suah common rohool dlatrlots.
We do not believe that AHiolo 2922L vas meant to Rake It
~~&~tory upon rural hLgh school tiiatriotsto appoint their
ovn asemmora 8nd to prevent their using the a8tse8snamta
nmde by the county tax assessor. Rather ve belleve that it
MS lntondod to give such districts a choloe in the IIBttur,
8imibr to the 0h0100 giWXA the b0WdS Of trUStOe5 Of'iodepen-
dent school &lstrIats with reference to t&x as5088ar8 and
collectom. We armwar your first question afflrzkativoly.
Hovever, if the board of tmatees of auoh a dlstrlot
eloota to appoint Its oun ItBsesaorIt ia quite blear fYom the
statute that the board must elao appoint a board of eqUallaatlon
of the number of men and pOSseasln& the qUtilfiCation8 the-in
sat out. mere the board of trustees has its own aaaeaSor,
the statute requires that assesmi?nta shall be eqUallzed by
the diatrlotla board of equalization thus appointed.
The work of the various oami13s~onarBt COUftS sitting
ILLboards or eqUaLlzation -underArtlala 7206, Revlred Civil
Statutsrr, Is accepted by common school diStPiOt8, the ValImtiorUI
arrlvod at belw the name for oo&?ionoohool distriot purposes
as for State and oountg. Co-n school distrlots have no OthOP
boards of eqUlitstion. Such ve think ia contemplated by
hrtlcla 2735 and IS the conmon and aocoptod practioe.
.
.
Ron. v. IL HcClalrl,Pa&e 4
Rexme, if the bomd oP truatses of the rural high
school distrlot in question desires, it may have tha taxes
of tha dlatriot assessed by tba county txu asmosaor. But,
in suah ovont, under ArtiaLe 292Zb, the dlotrlat mwt aaaept
the valu8tlona arrived rt by the c~sriorrsm’ aourt rlttdng
M a b0a-d 0r 0qwlh8tion. The langwgeofhrtial82g22L
doemnot v8rr8nt the appointment of the spoolal bomd oP
oquallz8tlon,in our opinion, exaopt to eqwllro usesenmnts
nade by an 88aossoz Por the dlstriot rppolnted by the bawd
under authority of said A~tiolo 2922 L.
We believe the above 8uPfiaiantly akuera your
quaet1ona.
Pours very truly
ATTORERY -h 6l+9’lKAS | 01-03-2023 | 02-18-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4162731/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4692
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN LACHINSHER SINGLETARY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Florence. Cameron McGowan Currie, Senior District Judge. (4:96-cr-00312-CMC-1)
Submitted: April 20, 2017 Decided: April 24, 2017
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for
Appellant. Beth Drake, United States Attorney, Robert Frank Daley, Jr., Alfred W.
Bethea, Jr., Assistant United States Attorneys, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Lachinsher Singletary, who pled guilty in 1997 to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(e) (1996), appeals the
120-month sentence imposed on resentencing following his successful 28 U.S.C. § 2255
(2012) motion. * Singletary asserts that the 120-month sentence is greater than necessary
to satisfy the purposes of 18 U.S.C. § 3553(a) (2012) because the sentence should have
been imposed to run concurrent to the state sentence he is serving for related conduct.
We review Singletary’s sentence for reasonableness “under a deferential abuse-of-
discretion standard.” United States v. McCoy, 804 F.3d 349, 351 (4th Cir. 2015) (internal
quotation marks omitted); see United States v. King, 673 F.3d 274, 283 (4th Cir. 2012)
(recognizing that this court reviews any criminal sentence, “whether inside, just outside,
or significantly outside the Guidelines range,” for reasonableness “under a deferential
abuse-of-discretion standard”). Although this review generally entails appellate
consideration of both the procedural and substantive reasonableness of the sentence, see
Gall v. United States, 552 U.S. 38, 51 (2007), Singletary concedes that the district court
committed no procedural error in fashioning his sentence. Thus, we must determine
whether the district court “set forth enough to satisfy [this court] that [it] has considered
the parties’ arguments and has a reasoned basis for exercising [its] own legal
*
The district court granted Singletary’s § 2255 motion and vacated his life
sentence because, under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015)
(holding that residual clause of the Armed Career Criminal Act is unconstitutionally
vague), Singletary was no longer an armed career criminal.
2
decisionmaking authority.” United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks omitted). When reviewing a sentence above the sentencing
range, we “may consider the extent of the deviation, but must give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51.
We discern no abuse of discretion in this case. Admittedly, the Sentencing
Guidelines provide that a sentence should be imposed concurrent to an undischarged
sentence if the undischarged sentence is for an offense that involves conduct relevant to
the instant conviction. See U.S. Sentencing Guidelines Manual § 5G1.3(b)(2) (2016).
The Guidelines are advisory, however, and “a district court has no obligation to impose a
concurrent sentence, even if § 5G1.3(b) applies.” United States v. Nania, 724 F.3d 824,
830 (7th Cir. 2013). Rather, after calculating a defendant’s Guidelines range, a district
court is required to consider the § 3553(a) factors in determining whether to run the
federal sentence consecutively or concurrently. 18 U.S.C. § 3584(b) (2012). Our review
of the record confirms that the district court adequately considered the § 3553(a) factors.
Accordingly, the district court acted within its discretion to run Singletary’s federal
sentence consecutive to the state sentence he was then serving, and we perceive no error
in its decision to do so.
Based on the foregoing, we affirm the district court’s judgment. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 04-24-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4154020/ | Case: 16-50082 Document: 00513917670 Page: 1 Date Filed: 03/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-50082 FILED
Summary Calendar March 20, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RIGOBERTO ZUNIGA-ESPINOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:15-CR-457-6
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Rigoberto Zuniga-Espinoza has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Zuniga-Espinoza has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-50082 Document: 00513917670 Page: 2 Date Filed: 03/20/2017
No. 16-50082
issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2 | 01-03-2023 | 03-20-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/4130384/ | Honorable Garry Mauro Opinion No. JM-1085
Commissioner
General Land Office Re: Whether taxes accrue
Stephen F. Austin Building against real property held in
1700 North Congress Avenue the Veterans' band Fund after
Austin, Texas 78701 forfeiture in a contract of
sale by the Veterans* Land
Board (RQ-1697)
Dear Mr. Mauro:
You inform us that the Veterans' Land Board. recently
received tax bills from taxing units for current and
delinquent ad valorem taxes levied on real property that had
been conveyed by contract of sale to qualifying veterans but
reverted to the board after forfeiture of such contracts.
Consequently, you ask two questions regarding the taxation
of real property comprising the Veterans' Land Fund:
1. Do taxes accrue against ~real property
held in the Veterans band Fund after
forfeiture of a contract of sale by the
Veterans Land Board?
2. Do penalties and interest on pre-
existing tax liabilities continue to accrue
against the real property after forfeiture
reverts full title to the property in the
State of Texas?
We answer your first question in the negative. Taxes
may not be imposed against real property held in the
Veterans' Land Fund after there has been a forfeiture of a
contract of sale and equitable and legal title to the
property has reverted to the possession and control of the
board. We answer your second question in the affirmative.
Penalties and interest continue to accrue on preexisting tax
liabilities against real property after forfeiture vests
full title to the property in the state. We also note,
however, that while the tax lien created by the previous
P. 5664
Honorable Garry Mauro - Page 2 (JM-1085)
owner's failure to properly tender his taxes remains in
force during that period when the title to the real property
reverts to the Veterans* Land Board, such a lien is
unenforceable against the state. Such a lien would be
enforceable against any subsequent purchaser, and the
veteran-purchaser against whom the taxes were originally
imposed, of course, remains personally liable.
The Veterans* Land Board [hereinafter the board] was
created by amendment to the Texas Constitution in 1946 in
order to make low-interest loans available to eligible
veterans who served in the armed forces of the United States
during specified periods. Tex. Const. art. III, 5 49-b,
inter-p. commentary (Vernon 1984): see aenerallv Nat. Res.
Code 5 161.001 et . The Veterans' Land Board, using
public funds, purchzzes a particular plot of land at the
request of an eligible veteran. The land then is resold by
the state to the veteran under a contract for a deed. The
contract delivers equitable title and possession to the
veteran: the state, through the board, retains legal title
until the full purchase price, interest, and fees have been
paid. m Venable v. Patti, 490 S.W.2d 194 (Tex. Civ. APP.
- Texarkana 1973, writ ref'd n.r.e.); Citv of Garland v.
Wentzel, 294 S.W.2d 145 (Tex. Civ. App. - Dallas 1956, writ
ref'd n.r.e.); see also Attorney General Opinion JM-774
(1987).
If a purchaser defaults on a contract, then the board
may declare a forfeiture and take possession of the
property. Nat. Res. Code 55 161.311-161.324. Once for-
feiture proceedings have been completed, both equitable and
legal title are vested in the Veterans' Land Board, and the
property belongs to the state. See Ma crick Countv Water
Control & Imnroveme t Dist. No. 1 v. St&e 456 S.W.2d 204
(Tex. Civ. App. - Stn Antonio 1970, writ rei'd).
Article VIII, section 1, of the Texas Constitution
provides in relevant part: "All real property and tangible
personal property in this State . . . shall be taxed in
proportion to its value, which shall be ascertained as may
be provided by law." Article VIII, section 2, provides in
relevant part that "[t]he legislature may, by general laws,
exempt from taxation public property used for public
P. 5665
Honorable Garry Mauro - Page 3 (JPr-1085)
purposes.111 Pursuant to article VIII, section 2, the
legislature enacted section 11.11 of the Tax Code, governing
the taxation of public property, which provides in pertinent
part:
(4 Except as provided by Subsections (b)
and (c) of this section, property owned by
this state or a political subdivision of this
state is exempt from taxation if the orooertv
is used for Dub 11'c DUrDOSeS.
. . . .
(d) prooertv owned bv the state that is
not used f r DUbliC ourooses is taxable.
Prooertv owzed bv a state aaencv or insti-
tution is not used for DUbliC ournoses if the
pronertv is . . . used to DrOVide orivate
residential housina for comuensation to
members of the oublic other than students and
emolovees of the state aaencv or institution
ownina the orooertv. unless the residential
use is secondarv to its use bv an educational
institution orimarilv for institutional
purooses. Any notice required by Section
25.19 of this code shall be sent to the
agency or institution that owns the property,
and it shall appear in behalf of the state in
any protest or appeal related to taxation of
the property. (Emphasis added.)
It is suggested that the real property that comprises
the Veterans' band Fund is taxable under subsection Cd)
because such property appears to be "used to provide private
residential housing for compensation to members of the
1. Article XI, section 9, of the Texas Constitution
by its terms exempts "property of counties, cities and
towns, owned and held only for public purposes, . . . and
all other property devoted exclusively to the use and
benefit of the public . . . from taxation . . . .'I, This
section is self-executing. Because the last clause has
never been construed to apply to property owned by the
state, we need not discuss the cases involving counties and
cities that rely upon this provision.
p. 5666
Honorable Garry Mauro - Page 4 (JM-1085)
public other than students and employees of the state agency
or institution owning the property." It is also suggested
that such property is not used for a public purpose, that
the board stands in no different legal position from that
of any other mortgage company that is required to pay ad
valorem taxes on any real property on which its mortgagors
default, and that real property comprising the fund falls
squarely within subsection (d) of section 11.11 of the Tax
Code.
The quoted language of subsection (d) of section 11.11
of the Tax Code does not require the taxation of real
property comprising the Veterans ' Land Fund when legal title
to such real property rests with the state. The Veterans'
Land Board does not provide "residential housing for com-
pensation to members of the public . . . .I1 Rather, it
provides the financing needed to purchase private residen-
tial housing, and it offers it on1 to qualifying veterans
of the United States' armed forces. ?i
In addition, the legislative history of subsection
11.11(d) does not indicate that the legislature intended to
deviate from the long-accepted practice of exempting from ad
valorem taxation the real property comprising the Veterans'
2. A brief submitted to us argues that the fact that
only qualifying veterans may participate in the land program
necessarily means that the program is not for a public
purpose under article VIII of the Texas Constitution. We
disagree. The test for determining whether public property
is tax exempt is whether it is used primarily for the
health, comfort, and welfare of the public. It is not
essential that it be used for governmental purposes; it is
sufficient that it be used for "proprietary" purposes.
A&
M onsol. nde . an, 184
S.W.Zd 914 (Tex. 1945). It is immaterial whether only
residents of a taxing unit are benefitted or whether others
benefit as well; the fact that property is owned by the
public and is used primarily for the health, comfort, and
welfare of the public of some portion of the state is
sufficient to entitle such property to tax-exempt status.
State v. Houston Liahtina & Power Co ., 609 S.W.2d 263 (Tex.
Civ. App. - Corpus Christi 1980, writ ref'd n.r.e.);
see also Attorney General Opinions JW-405 (1985); MW-430
(1982); WW-391 (1981).
p. 5667
Honorable Garry Mauro - Page 5 (JM-1085)
Land Fund. See Hearings on Tex. H.B. 30 before the Senate
Finance Committee, 67th Leg. 22-31 (August 5, 1981) (trans-
cript available from Senate Staff Services). It appears
that the legislature intended that property owned by a
political subdivision but not used for the public purpose
for which it was originally acquired should not be tax
exempt. The real property at issue here, however, is being
used for the purpose for which it was acquired originally,
namely the creation of a "land fund" to facilitate the
purchase of real property by veterans through the granting
of low-interest loans. Article III of the Texas Constitu-
tion was amended by the addition of section 49-b to permit
the legislature to do what the constitution otherwise would
prevent it from doing, namely the "giving or lending, of the
credit of the State in aid of, or to any person . . .'I or
the granting of "public moneys to any individual." See Tex.
Const. art. III, 55 50, 51. The very establishment of such
a fund in the Texas Constitution impresses upon it the
nature of a public purpose.
Moreover, the Texas Constitution exempts real property
comprising the Veterans' Land Fund from ad valorem taxation
after the purchaser of such property has defaulted on his
payments and full title to the property reverts to the
control of the state. Section 49-b of article III of the
Texas Constitution provides in relevant part:
Such lands heretofore or hereafter purchased
and comprising a part of said Fund are hereby
declared to be held for a governmental pur-
pose, although the individual purchasers
thereof shall be subject to taxation to the
same extent and in the same manner as are
purchasers of lands dedicated to the
Permanent Free Public School Fund.
We recently declared in Attorney General opinion
JM-1049 (1989) that the interest in real property comprising
the permanent school fund that is retained by the state when
it leases such real property to private businesses is exempt
from ad valorem taxation, but the leasehold estates conveyed
to the private businesses are themselves taxable. The
reasoning that we employed in Attorney General Opinion
J&l-1049, regarding the proper construction of both the Texas
Constitution and the relevant Tax Code provisions, is
equally applicable here. By its terms, section 49-b of
article III likewise would exempt from ad valorem taxation
real property comprising the Veterans' Land Fund.
P. 5668
Honorable Garry Mauro - Page 6 (JM-1085)
Finally, case law in this area of law compels us to
answer your first question in the negative. On the basis of
M&j
st&,C&, we conclude that real pzoperty compri:ing tit;?
Veterans' band Fund, equitable title to which has reverted
back to the state after the default of the purchaser, is not
subject to taxation while it is in the hands of the state.
In Maverick County the Veterans' Land Board sought a
declaration that certai; real property owned by the board
was free of all claims for taxes or other charges made,
levied, or assessed by a water control and improvement
district, an independent school district, and a county. A
veteran had purchased real property comprising part of the
Veterans' Land Fund in 1956; he failed to make the required
payments and the board declared his rights under the
contract forfeited in 1962. After the forfeiture, the board
held full legal and equitable title to the property. The
trial court declared that the land was free of all taxes and
other charges levied by the taxing units after the rights of
the veteran under the contract of sale were terminated,
i.e., after the veteran had defaulted and the state reac-
quired both the equitable and legal title to the property.
The court of appeals agreed. It held that where real
property had been purchased by the board and sold to an
eligible veteran but subsequently repossessed, the real
property, thereafter, was subject neither to ad valorem
taxation nor to special assessments levied during the
veteran's possession.
It has been suggested that Maverick Countv is no longer
controlling law in this area. It is contended, first, that
section 11.11 of the Tax Code was enacted after Mm
Countv was handed down and constitutes the legislature's
most recent statement regarding its intention to tax
publicly-owned property that is not used for the public
purpose for which the property was originally acquired. As
we noted earlier, the 1981 amendment to section 11.11 does
not compel us to conclude that real property comprising the
Veterans' Land Fund is taxable. Neither the actual language
used in the amendment nor the legislative history indicating
the evident intention of the legislature in passing the
amendment supports such's reading. And, as we stated above,
we believe that the real property comprising the Veterans'
band Fund is being used for the precise public purpose for
which the real property was acquired by the board in the
first place.
P. 5669
Honorable Garry Mauro - Page 7 (JM-1085)
It is also contended that the Maverick County case is
suspect because it appears to be predicated upon a Texas
Supreme Court case that is itself of doubtful precedential
value. We agree that the court in Waverick Count!? did rely
in part on a Texas Supreme Court case whose precedential
value has been undermined by subsequent decisions, but we
disagree that a court considering the matter again would
reach a different result.
The case that the Maverick County court cited is City
of Beaumont v. Fertitta, 415 S.W.Zd 902 (Tex. 1967). In
Fertitta, the court considered whether real property owned
by a city, though leased to private persons for the purpose
of carrying on a private commercial enterprise, was exempt
from ad valorem taxation regardless of the fact that the use
to which the property was put was not public. The court in
Fertittq departed from the method of constitutional analysis
that courts traditionally had invoked when the issue was
whether property owned by a political subdivision was
entitled to receive tax-exempt status. See Fertitta, m,
(dissenting opinion).
Prior to Fertitta, courts had always looked to whether
the property was both owned by a political subdivision and
used or held for a public purpose, and assuming that it was
not so used, it would be taxable under article VIII,
sections 1, and 2, of the Texas Constitution. See A&M
Consol. Indeo.~Schbol Dist. v. Citv of Brvan 184 S.W.2d 914
(Tex. 1945); Dauahertv v. Thomn son, 9 S.W. 49 (Tex. 1888);
City of Abilene v. State.
-. 113 S.W.Zd 631 (Tex. Civ. App. -
Eastland 1937, writ dism'd) (holding disapproved of on other
grounds in Fertitta). The court in Fertitta departed from
the traditional mode of constitutional analysis in declaring
that the constitution does not require that property owned
by a municipality but not used for a public purpose be
taxed. It only requires that private property held by
natural persons or private corporations be taxed.
Therefore, since the constitution does not require municipal
property to be taxed, the legislature needs no
constitutional authority to exempt it. It chose to do so in
the now-repealed article 7145, V.T.C.S. This statute
required that all property, except that which is expressly
exempted, be taxed. The now-repealed article 7150,
V.T.C.S., exempted "[a]11 property, whether real
personal, belonging exclusively to this State, or a:;
political subdivision thereof, or the United States . . . .'I
Public ownership was enough; no public use was required.
P. 5670
Honorable Garry Mauro - Page 8 (JM-1085)
The dissent in pertittq correctly pointed out that this
constitutional and statutory construction is novel: indeed,
earlier decisions, which went to great length discussing the
holding and using requirements of public property, make
sense only if one accepts the claim that the constitution
requires u property to be taxed unless it is specifically
exempted pursuant to a constitutional provision, i.e., that
public property, in order that it be deemed tax-exempt, must
fall within the limitations set forth in article VIII,
section 2, or article XI, section 9, of the Texas Constitu-
tion. No subsequent case explicitly has employed such an
analysis. Moreover, the Texas Supreme Court clearly
narrowed the reach of Pertitta * leander Indeo. School
Dist.v.CedarPark CzlJ 479 S.W.2d 908 (Tex.
1972) and in 2,atte ee v. GU f
576 S.W.2d 773 (Tex. 1978).
The leander case did not concern property owned by a
political subdivision leased to a private person for the
purpose of a private commercial enterprise; rather, it
concerned-property owned by a private person but used for
public purposes. In overturning a lower court judgment
sustaining the tax-exempt status of such property, the court
specifically held that property, to be exempt, must be used
for public purposes. The court in bander did not, however,
explicitly reject the' mode of constitutional analysis
employed in Fertitta. In Satterlee the court reaffirmed
the requirement that there be a pubiic use before property
owned by a political subdivision be declared tax-exempt.
If the traditional method of analysis were applied to
the instant situation, namely that public property must be
put to a public use before it may be exempt from ad valorem
taxation, we think that a court would hold that by virtue of
the inclusion of section 49-b of article III of the Texas
Constitution, the real property comprising the Veterans'
band Board is exempt from taxation so long as full title to
that property rests with the state. If the Fertitta test
were adopted, on the other hand, a court would disregard any
necessity that such property be used for a public purpose
and look only to whether the property was owned and
controlled by the state or a political subdivision of the
state;~it would conclude, although for different reasons,
that the property described here is tax-exempt.
We note, moreover, that the argument undermining
Maverick because of its reliance on Fertitta is
refuted effectively by the fact that the Texas Supreme Court
Pm 5671
Honorable Garry Mauro - Page 9 (JM-1085)
explicitly reaffirmed in a later case its approval of the
Waverick County case. In Satterlee, the court concluded
that certain real property and the improvements located
thereon that were purportedly "owned" by local taxing units
were not exempt from taxes because the ownership interest
of the taxing units was not exclusive. In discussing the
public use and public ownership requirements for tax exemp-
tion, the court declared:
After Fertitta, we approved without qualifi-
cation the opinion of the Court of Civil
Appeals in Maverick Countv Water Control 8
Imorovement District # 1 v. State 456 S.W.2d
204 (Tex. Civ. App. 1970, writ rei'd). There
the Court recognized Pertitta but cited State
V. Bexar-Medina-Atascosa Counties Water
Imorovement District, 310 S.W.2d 641 (Tex.
Civ. App. 1958, writ ref'd), also approved by
this Court, where it was held that land did
not belong exclusively to the State while the
contract with the Veterans Land Board
remained in effect. As to this, the Court in
maverick wrote that 'While the contract was
the land was l'owned by the
&e~~~;lO S W 2d at 643 with the State
holding'only the' legal titie.’ The Court
upheld the tax exemption in Maverick for the
reason as stated in the opinion that the
Veterans Land Board 'held full legal and
equitable title to the land.' We approved
the principles of law declared in the opinion
by unqualified refusal of writ of error.
Our conclusion that the Authority was not
vested with the requisite exclusive ownership
renders unnecessary a re-examination of the
holding in Fertitta that Article 7150, § 4,
provides for the exemption from taxation of
municipal property regardless of the use to
which it is put or the purposes for which it
is held.
576 S.W.2d at 777-8.
Therefore, we answer your first question in the
negative and conclude that real property comprising part of
the Veterans' Land Fund is exempt from ad valorem taxation
while legal and equitable title to such real property is
P* 5672
Honorable Garry Mauro - Page 10 (JM-1085)
vested in the state. Such real property is taxable to the
purchaser under the contract for sale so long as the
contract is in effect; after the purchaser defaults and
legal title reverts to the control of the state, such real
property is ex,empt from taxation. We now turn to your
second question.
You next ask:
Do penalties and interest on preexisting.
tax liabilities continue to accrue against
the real property after forfeiture reverts
full title to the property in the State of
Texas?
Section 33.01 of the Tax Code governs the imposition of
penalties and interest on delinquent taxes and provides the
following:
(a) A delinquent tax incurs a penalty of
six percent of the amount of the tax for the
first calendar month it is delinquent plus
one percent for each additional month or
portion of a month the tax remains unpaid
prior to July 1 of the year in which it
becomes delinquent. However, a tax delin-
quent on July 1 incurs a total penalty of
twelve percent of the amount of the delin-
quent tax without regard to the number of
months the tax has been delinquent.
(b) If a person who exercises the split-
payment option provided by Section 31.03 of
this code fails to make the second payment
before July 1, the second payment is delin-
quent and incurs a penalty of twelve percent
of the amount of unpaid tax.
(c) A delinquent tax accrues interest at
a rate of one percent for each month or
portion of a month the tax remains unpaid.
You assert that penalties and interest may not continue
to accrue on preexisting tax liabilities after the state
again assumes both legal and equitable title to the real
property against which delinquent taxes are due. YOU
suggest two different arguments in support of your
P. 5673
Honorable Garry Mauro - Page 11 (JM-1085)
proposition. First, YOU claim that such a result is
required by the Maverick County case. We disagree.
As we noted previously, Waverick Countv involved an
action by the Veterans' band Board for a declaration that
real property whose title had reverted to the board after' a
veteran defaulted on his payments was free of all liens for
taxes or other charges made, levied, or assessed on the
property by a water control and improvement district, an
independent school district, and a county. Specifically at
issue were tax liens created when the veteran-purchaser
failed to pay both taxes properly levied on his property by
the school district and the county and assessments in the
form of flat rate fees imposed by the water control and
improvement district.
The court of appeals described the trial court judgment
in the following fashion: "The trial court's judgment
declares the land free from taxes and other charges levied
by defendants after the rights of the veteran under the
contract of sale were terminated." 456 S.W.Zd at 205. It
is not clear from the court of appeals' decision whether the
trial court distinguished between those taxes and flat rate
assessments imposed while the veteran's contract was still
in force and those that the taxing units sought to enforce
after the full title had reverted to the state.
The court of appeals in Maverick County held that taxes
cannot be imposed on real property comprising the Veterans'
Land Fund after the title to the property reverts to the
state; the property in question was subject to taxation only
during that period of time 'during which the veteran-pur-
chaser owned the equitable title. Based upon an earlier
case, the court also held that liens for pre-existing taxes,
i.e., taxes levied on the property while the contract with
the veteran was still in force, were still in effect. The
court, however, apparently did hold that no lien for the
assessment of the flat rate taxes was created by the
veteran's failure to tender such assessments.
You rely upon the language from the Maverick Countv
case declaring the property free from taxes "or other
charges levied" by the taxing units to support the proposi-
tion that penalties and interest on the preexisting taxes do
not continue to accrue. You apparently construe this to
mean that any penalties and interest imposed for failing to
pay the taxes levied in a timely fashion may not continue to
accrue after title reverts to the state. In other words,
P. 5674
Honorable Garry Mauro - Page 12 (JM-1085)
you assert that the phrase "or other charges" includes
penalties and interest imposed when accrued taxes become
delinquent. You state in your request for an opinion:
The Court affirmed the determination of the
trial court that the property itself is 'free
of all liens and claims for taxes or other
charges . . . made, levied or assessed' by
any taxing entities. L at 205.
Brief of Texas Veterans Land Board at 8.
We disagree with this construction of M-y
The l'chargesl' referred to by the court do not include
interest and penalties. The "c~harges,~'when understood in
the context of Maverick CountY and the authorities it cites,
are special assessments made by the water district.
See. Cit
v, 26 S.W.2d 910
Ha ris
(Tex. 193;)); eCountv 7 S.W. 713 (Tex. 1888):
W'ch'ta
1 ount Wate Citv of
Wichita, 323 S.W.Zd 298 (Tex. Civ. App. - Fort Worth
1959, writ ref'd n.r.e.); see also Attorney General Opinions
JM-1035 (1989); JM-523 (1986) . The Maverick court
merely held that a special district could not impose flat
rate fees against the property in that instance while title
to it was held by the state. Maverick County does not stand
for the proposition that penalties and interest for
delinquent taxes may not be imposed on real property that
has reverted to the state: it ~does not even mention
penalties and interest.
Your second argument in support of the proposition that
penalties and interest may not continue to accrue against
real property whose title has reverted to the Veterans' Land
Board is that permitting such accrual of penalties and
interest is tantamount to permitting the taxation of such
property, however indirectly. On the other hand, a brief
submitted to us suggested that the lien created by the
veteran's failure to properly tender the taxes due extends
also to the penalties and interest that accrue.
Both arguments rest on the presupposition that penal-
ties and interest are to be treated as though they were
taxes. On the one hand, if accrued penalties and interest
are the equivalent of taxes and if taxes may not be imposed
upon real property while title is in the possession and
control of the Veterans' Land Board, it can be argued that
penalties and interest likewise may not continue to accrue
P. 5675
Honorable Garry Mauro - Page 13 (JM-1085)
against such real property. On the other hand, if aCCNed
penalties and interest are the equivalent of taxes and if an
enforceable lien is created by the veteran's failure to
properly tender the taxes before they became delinquent, it
can be argued that any waiver of aCCNed penalties and
interest violates the Texas constitutional prohibitions
against releasing or extinguishing the indebtedness of any
individual owed to the state or to any political subdivision
of the state, Tex. Const. art. III, 5 55, or against the
release from the payment .of taxes. Id. art. VIII, 5 10.
A surface reading of article VIII, section 15, of the
Texas Constitution lends support to your presupposition that
penalties and interest should be treated as though they were
taxes. That section provides:
The annual assessment made upon landed
property shall be a special lien thereon;
and all property, both real and personal,
belonging to any delinquent taxpayer shall be
liable to seizure and sale for the payment of
all the taxes and penalties due by such
delinquent: and such property may be sold for
the payment of the taxes and penalties due by
such delinquent, under such~ regulations as
the Legislature may provide.
While section 15 clearly does not create a lien on any
property for failing to pay any penalties and interest that
are imposed along with delinquent taxes,3 it might be argued
that, at least as to summary seizure and sale and judicial
sale and execution, penalties and interest are treated in
the same manner as the delinquent taxes on which the
calculation of such penalties and interest are based.
However, the Texas Supreme Court has not construed section
15 to require that penalties and interest be treated as
though they were taxes that were levied.
3. While section 15 of article VIII of the Texas
Constitution does not create a lien for failing to pay any
penalties and interest imposed, section 32.01 of the Tax
Code does. Of course, any lien that the legislature sees
fit to create by statute can also be amended by the legisla-
ture by statute.
P. 5676
Honorable Garry Mauro - Page 14 (JM-1085)
In Jones v. Williams, 45 S.W.Zd 130 (Tex. 1931), the
Texas Supreme Court upheld the constitutionality of a
statute that provided:
That all interest and penalties accrued and
as now fixed by law, on all . . . taxes . . .
other than [taxes of] incorporated cities and
towns, delinquent up to and including October
20, 1931, shall be, and the same are hereby
released, provided said taxes are paid on or
before January 31, 1932.
Jones, m, at 131.
The court in Jones first rejected the assertion that
the statute could be sustained by reference to section 10
of article VIII of the Texas Constitution. Section 10 pro-
vides:
The Legislature shall have no power to
release the inhabitants of, or property in;
any county, city or town from the payment of
taxes levied for State or county purposes,
unless in case of great public calamity in
any such county, city or town, when such
release may be made by a vote of two-thirds
of each House of the Legislature.
If the exactions (FLn, penalty and interest) imposed upon
taxpayers for failing to timely tender payment of accrued
taxes are themselves "taxes" for purposes of article VIII,
section 10, then the court, after concluding that the
statute at issue was not enacted pursuant to the "great
public calamity" requirement, would perforce have struck
down the statute. Because it did not, it is clear that the
court did not conclude that such exactions constitute
lYaxes.U1
Nor did the court in Jones consider such exactions an
instance of an "indebtedness, liability, or obligation" for
purposes of article III, section 55, of the Texas Constitu-
tion. Section 55 provides:
The Legislature shall have no power to
release or extinguish, or to authorize the
releasing or extinguishing, in whole or in
part, the indebtedness, liability or obliga-
tion of any corporation or individual, to
P. 5677
Honorable Garry Mauro - Page 15 (JM-1085)
this State or to any county or defined
subdivision thereof, or other municipal
corporation therein, except delinquent taxes
which have been due for a period of at least
ten years.
If the court in Jones had concluded that such exactions were
in reality interest e imposed by the state as
compensation for the detention of its money, rather than
viewing such exactions as a form of "penal interest," the
statute would have run afoul of sections 51 and 55 of
article III. The court set forth the history surrounding
attempts to enforce public revenue and tax collection
procedures and declared:
On the whole, we have concluded that~ the
impositions made for delinquency in rendering
property for taxation, and for failure to
pay taxes, whether these impositions are
denominated 'penalties,' 'interest,! 'for-
feitures,' or whether prescribed without
definition or name, are all in reality
penalties imposed for delinquency or failure
of duty, and all enacted in aid of the
state's revenue, rather than as charges made
by the state for the use or detention of its
money. In other words, the exactions are
8 enalties' rather than \int.erest' in the
commercial or statutory sense. (Emphasis in
original.)
45 S.W.2d at 133. The court concluded:
We think the act is constitutional for the
reason that the Legislature has the power to
release, cancel, annul, or suspend penalties
previously accrued for delinquent taxes, so
long as these penalties have not been reduced
to final judgment.
Finally, in response to the claim that the statute at
issue violated article III, section 56, of the Texas
Constitution, which prohibits the legislature from passing
certain local and special laws remitting penalties, the
Jones court concluded that the legislature by implication
could remit such penalties by aeneral law:
P. 5678
Honorable Garry Mauro - Page 16 (JM-1085)
The only express limitation on the right
of the Legislature to remit penalties is that
specified in section 56 of article 3, which
prohibits the Legislature from 'remitting
fines, penalties, and forfeitures by soecial
m. ' The necessary implication from the
language used is that 'fines, penalties and
forfeitures' may be remitted by general laws,
such as the one before us. . . . Nor do we
think that the Legislature is prohibited,
either expressly or by necessary implication,
by the language of any other section of
the Constitution. If it be said that the
provisions of sections 51 and 55 apply to
penalties imposed for tax delinquency, then,
for the same reason, we would be compelled to
say they apply to &l classes of oenalties,
and to fines and forfeitures as well. Such a
construction would render meaningless the
power clearly reserved to the Legislature by
the terms of section 56 of article 3, to
release 'fines, penalties and forfeitures' by
general law. (Citations omitted.) (Emphasis
in original.)
Id. at 137.
Clearly, if the Texas Supreme Court COnStNed article
VIII, section 15, of the Texas Constitution to require that
penalties and interest be accorded the same treatment as
taxes are accorded, then the court would not have concluded
in Jones that the statute then at issue was constitutional.
Therefore, we reject both your assertion and the suggestion
by the law firm submitting a brief: it is not the case that
penalties and interest must be waived, nor is it the case
that penalties and interest cannot be waived.
It is clear that the legislature is empowered to enact
a statute that effectively would waive the penalties and
interest aCCNed on unpaid delinquent taxes levied on real
property whose title has reverted to the possession and
control of the Veterans' Land Board. See. e.a Attorney
General Opinion WW-780 (1960) (upholding and"construAinz
statute that permitted that state to tender unpaid
delinquent taxes on Veterans' Land Fund land in order
for the state to clear title thereto): see also Attorney
General Opinion M-139 (1967) (distinction between *%ax't and
"penalty" well established in law). It is equally clear
P. 5679
Honorable Garry Mauro - Page 17 (JM-1085)
that the legislature has not so acted. Section 33.011 of
the Tax Code permits the governing body of a taxing unit to
waive penalty and interest under certain circumstances and
provides:
The governing body of a taxing unit may
provide for the waiver of penalties and
interest on a delinquent tax if an act or
omission of an officer, employee, or agent of
the taxing unit caused the taxpayer's failure
to pay the tax before delinquency and if the
tax is paid within 21 days after the taxpayer
knows or should know of the delinquency.
No other provision of the Tax Code addresses the waiver of
penalty and interest.
Because the Texas Constitution does not require it and
because the legislature has not provided for it, we conclude
that penalties and interest will continue to accrue on the
unpaid delinquent taxes levied upon real property comprising
the Veterans' Land Board whose title has reverted to the
board due to the default of the veteran-purchaser.
We note, however, that while the tax lien created by
the previous owner's failure to properly, tender his taxes
remains in force during that period when the title to the
real property reverts to the Veterans' Land Board, such a
lien is unenforceable against the state. See. e.a., State
V. itv of San Antonio, 209 S.W.Zd 756 (Tex. 1948);
Childress County v. State, 92 S:W.Zd 1011 (Tex. 1936);
Lubbock Indeo. School Dist. v. Owens, 217 S.W.2d 186 (Tex.
Civ. App. - Amarillo 1948, writ ref'd). Such a lien would
be enforceable against any subsequent purchaser, and the
veteran-purchaser against whom the taxes originally were
imposed, of course, remains personally liable. Tax Code
§ 32.01; Attorney General Opinions JM-1049 (1989): NW-523
(1982) ; H-1108 (1977).
SUMMARY
Taxes may not be imposed upon real
property comprising the Veterans' Land Fund
after the contract of sale has been forfeited
and full title to the property has reverted
to the possession and control of the state.
Penalties and interest on unpaid delinquent
taxes imposed on real property whose title
P. 5680
Honorable Garry Mauro - Page 18 (JM-1085)
has reverted to the state continue to accrue.
While the tax lien created by the previous
owner's failure to properly tender his taxes
remains in force during that period when the
title to the real property reverts to the
Veterans' Land Board, such a lien is unen-
forceable against the state. Case authority
of long standing dictates that such a lien
would be enforceable against any subsequent
purchaser. The legislature could have, but
has not, provided for waiver of such a lien
against subsequent purchasers,, and until it
acts, the land remains charged with the lien.
The veteran-purchaser against whom the taxes
originally were imposed, of course, remains
personally liable.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLBY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 5681 | 01-03-2023 | 02-18-2017 |