Texas Supreme Court hands down two signed opinions - authored by Justice Wainwright and Justice Johnson - and decides two more sovereign immunity cases per curiam.
National Plan Administrators, Inc. v. National Health Ins. Co.,
No. 05‑0006 (Tex. Sep. 28, 2007)(Johnson)(commercial law, contract, insurance code, thirda party administrator, no fiduciary duty)
NATIONAL PLAN ADMINISTRATORS, INC. AND CRS MARKETING AGENCY, INC. v. NATIONAL HEALTH INSURANCE COMPANY; from Travis County; 3rd district (03‑03‑00306‑CV, 150 SW3d 718, 09‑10‑04)2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court.
Texas Parks & Wildlife Dep't v. E.E. Lowrey Realty, Ltd.,
No. 05‑0157 (Tex. Sep. 28, 2007)(per curiam)(sovereign immunity, official capacity claims)
THE TEXAS PARKS AND WILDLIFE DEPARTMENT, DOUG HAMMIT, AND MARVIN C. WILLS, JR. v. E.E. LOWREY REALTY, LTD. D/B/A GATESVILLE STORAGE AND THE ESTATE OF E.E. LOWERY; from Coryell County; 10th district (10‑02‑00317‑CV, 155 SW3d 456, 11‑03‑04)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses in part the court of appeals' judgment and renders judgment. Per Curiam Opinion.
A.G. Edwards & Sons, Inc. v. Beyer, No. 05‑0580 (Tex. Sep. 28, 2007)(Wainwright)(consumer law, financial services, breach of contract, joint account with right of survivorship, Texas Probate Code, attorney's fees)
A.G. EDWARDS & SONS, INC. v. MARIA ALICIA BEYER; from El Paso County; 8th district (08‑03‑00495‑CV, 170 SW3d 684, 06‑30‑05)
The Court affirms the court of appeals' judgment in part, reverses in part, and remands the case to the trial court. Justice Wainwright delivered the opinion of the Court.
Lamesa ISD v. Booe dba Booe Roofing Co., No. 05‑0959 (Tex. Sep. 28, 2007)(per curiam)(sovereign immunity to breach of contract claim, opportunity to amend, citing Koseoglu, Tooke progeny)
LAMESA INDEPENDENT SCHOOL DISTRICT v. DAVID BOOE D/B/A BOOE ROOFING COMPANY; from Dawson County; 11th district (11‑03‑00394‑CV, ___ SW3d ___, 08‑31‑05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion.
Friday, September 28, 2007
Sunday, September 23, 2007
Supreme Court Justices Circle the Wagons and Refuse to Recuse - Recusal motion cited evidence of rampant bias in favor of defendants in tort cases
Sep. 21, 2007 - Recusal motion in wrongful death appeal quoted findings of study by law professor who conducted systematic quantitative and qualitative analysis of disposition patters of tort cases decided by the Texas Supreme Court 2004-05
See Anderson, David A.,[mailto:danderson@mail.law.utexas.edu] "Judicial Tort Reform in Texas" . Review of Litigation, 2007 Abstract available from SSRN: http://ssrn.com/abstract=976114
No. 06‑0416
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05‑06‑00611‑CV, ___ SW3d ___, 05‑12‑06)
Real parties in interest's motion to recuse denied in accordance with Tex. R. App. P. 16.3(b)
OPINION BELOW:
In Re Columbia Medical Center of Las Colinas (Tex.App.- Dallas 2006)(orig. proc.)
Writ of Mandamus Denied; Opinion Issued May 12, 2006
In The Court of Appeals Fifth District of Texas at Dallas
............................ No. 05-06-00611-CV ............................
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P.D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW, Relators
Original Proceeding from the 192nd Judicial District CourtDallas County,
TexasTrial Court Cause Nos. 02-05307-K
MEMORANDUM OPINION
Before Justices Whittington, FitzGerald, and Lang-MiersOpinion By Justice Whittington
Relators assert the trial judge abused his discretion in granting a motion for new trial after a jury had found in relators' favor in a medical negligence lawsuit. The trial judge granted the new trial solely “in the interests of justice and fairness”. The trial judge's explanation for the granting of the new trial was sufficient. See In re Volkswagen of Am., Inc., 22 S.W.3d 462 (Tex. 2000)(orig. proceeding) and In re Bayerische Motoren Werke, AG, 8 S.W.3d 326 (Tex. 2000) (orig. proceeding).
Accordingly, relators' petition for writ of mandamus is DENIED.
See Tex. R. App. P. 52.8(a).
MARK WHITTINGTON
JUSTICE
See Anderson, David A.,[mailto:danderson@mail.law.utexas.edu] "Judicial Tort Reform in Texas" . Review of Litigation, 2007 Abstract available from SSRN: http://ssrn.com/abstract=976114
No. 06‑0416
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05‑06‑00611‑CV, ___ SW3d ___, 05‑12‑06)
Real parties in interest's motion to recuse denied in accordance with Tex. R. App. P. 16.3(b)
OPINION BELOW:
In Re Columbia Medical Center of Las Colinas (Tex.App.- Dallas 2006)(orig. proc.)
Writ of Mandamus Denied; Opinion Issued May 12, 2006
In The Court of Appeals Fifth District of Texas at Dallas
............................ No. 05-06-00611-CV ............................
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P.D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW, Relators
Original Proceeding from the 192nd Judicial District CourtDallas County,
TexasTrial Court Cause Nos. 02-05307-K
MEMORANDUM OPINION
Before Justices Whittington, FitzGerald, and Lang-MiersOpinion By Justice Whittington
Relators assert the trial judge abused his discretion in granting a motion for new trial after a jury had found in relators' favor in a medical negligence lawsuit. The trial judge granted the new trial solely “in the interests of justice and fairness”. The trial judge's explanation for the granting of the new trial was sufficient. See In re Volkswagen of Am., Inc., 22 S.W.3d 462 (Tex. 2000)(orig. proceeding) and In re Bayerische Motoren Werke, AG, 8 S.W.3d 326 (Tex. 2000) (orig. proceeding).
Accordingly, relators' petition for writ of mandamus is DENIED.
See Tex. R. App. P. 52.8(a).
MARK WHITTINGTON
JUSTICE
Supreme Court Orders Stalker in Family Law Case Released on $250 Bond
In re Stephanie Ann Bourg, No. 07-0714 (Tex. 2007)(habeas corpus)
Orders Pronounced September 19, 2007
MISCELLANEOUS
RELATOR IS ORDERED RELEASED ON BOND IN THE FOLLOWING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDING:
07‑0714
IN RE STEPHANIE ANN BOURG; from Harris County; 1st district (01‑07‑00623‑CV, ___ SW3d ___, 08‑27‑07) conditioned upon $250.00 bond
See Tex. R. App. P. 52.8(b)(3)
[Note: The petition for writ of habeas corpus remains pending before this Court.]
The First Court of Appeals Denied Habeas Corpus Relief
In re Bourg (Tex.App.- Houston [1st Dist.] Aug. 27, 2007)
August 27, 2007
Civil Causes Decided:
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Jennings
(Before Justices Taft, Jennings and Alcala)
01-07-00623-CV
In re Stephanie Ann Bourg--Appeal from 245th District Court of Harris County
[Trial Court Judge: Hon. Annette Galik n/k/a Judge Annette Kuntz]
IN RE STEPHANIE ANN BOURG, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
By a petition for writ of habeas corpus, relator, Stephanie Ann Bourg, asserts that she is illegally restrained and seeks relief from a July 26, 2007 order revoking a suspension of commitment and a separate, but contemporaneous, confinement and commitment order.
Statement of Facts
In 2001, Bourg and real party in interest, Chad Clay, had a son. In September 2003, the trial court granted Clay and Bourg's divorce, including an Agreed Order in Suit Affecting the Parent-Child Relationship. The decree contains an agreed permanent injunction prohibiting Bourg from coming within 500 feet of Clay's residence; engaging in harassing conduct directed toward Clay or their son; placing anonymous, offensive, and repetitious phone calls to Clay or their son; and committing family violence. On June 29, 2004, the trial court signed a final protective order containing many injunctive provisions similar to those in the September 2003 decree, enjoining Bourg from stalking, harassing, or contacting Clay and their son.
Subsequently, the trial court signed an agreed order holding Bourg in contempt for five violations of its divorce decree, sentencing her to confinement for 180 days for each separate violation, to run concurrently. The trial court noted that Bourg had been confined from June 4, 2004 to June 29, 2004, and suspended the remaining 155-day balance of the sentence, provided that Bourg abide by certain terms and conditions and comply with all the trial court's previous orders.
On July 18, 2006, the trial court signed an agreed temporary protective order prohibiting Bourg from (1) committing family violence, (2) communicating directly with Clay or their son in a threatening or harassing manner, and (3) communicating in any manner with Clay or their son except through Bourg's attorney. On November 10, 2006, the trial court signed a final protective order containing many injunctive provisions similar to the ones in the decree and the July 18, 2006 agreed temporary protective order.
Clay then filed his "First Amended Petition for Enforcement by Contempt for Violation of Permanent Injunctions, Agreed Temporary Protective Order and (2006) Final Protective Order and Motion to Revoke Suspension of Commitment . . . . " In his motion to revoke the suspension of commitment, Clay asserted, among other things, that Bourg failed to comply with "all the orders of the court." In the petition for enforcement, Clay alleged that Bourg had violated, on 37 separate occasions, the trial court's prior orders. Clay asked the trial court to hold Bourg in contempt for each of these violations and, as punishment, to sentence Bourg to 180 days confinement for each violation.
At the conclusion of a hearing on Clay's motion to revoke suspension of commitment and petition for enforcement by contempt, the trial court in its July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" ("revocation order"), found that Bourg, on 37 occasions, had contemptuously violated either its September 2003 divorce decree, its July 18, 2006 temporary protective order, or its November 10, 2006 final protective order. The trial court revokeed the suspension of commitment and ordered Bourg confined until completion of her sentence, i.e., for the unserved 155 days.
Contemporaneously, in its separate "Order for Enforcement for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," the trial court also found that Bourg's violations of its prior orders constituted new instances of contempt for which the trial court sentenced Bourg to confinement for 180 days. (1) The trial court ordered that this contempt sentence commence immediately upon Bourg's completion of the 155-day balance of the prior contempt sentence for the violations, which predated the allegations Clay made in his May 2, 2007 petition for enforcement by contempt.
Standard of Review
A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The presumption is that the order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). A writ of habeas corpus issues if a trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Turner, 177 S.W.3d at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). A relator bears the burden of showing that she is entitled to relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09).
Right To A Jury Trial
Bourg first argues that she is entitled to habeas corpus relief because she was not afforded her Sixth Amendment (2) right to trial by jury for serious charges with a punishment of confinement in excess of 180 days.
Under the Sixth Amendment, an alleged contemnor has a right to a jury trial on a "serious" charge of criminal contempt. Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (orig. proceeding) (citing Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976) (orig. proceeding). "A charge for which confinement may exceed six months is serious." Werblud, 536 S.W.2d at 547.
At the outset, we note that the trial court did not sentence Bourg to 335 days in jail. Rather, it first revoked suspension of commitment for the unserved 155 days of her previous confinement for prior violations. It then, for new acts of contempt, assessed a punishment that did not exceed 180 days.
The trial court revoked the suspension of commitment in its September 21, 2004 "Agreed Order Holding Respondent in Contempt" ("Agreed Contempt Order") and ordered Bourg incarcerated "until completion of sentence as heretofore rendered by this Court." (Emphasis added.) Bourg agreed to serve five sentences of confinement for 180 days to run concurrently, for each of the five stipulated and agreed to violations of the September 2003 divorce decree. Since Bourg had served 25 days in confinement, from June 4, 2004 to June 29, 2004, she had a balance of 155 suspended and unserved days left to serve on the sentence.
In support of her argument that the trial court's two orders, one revoking the prior suspension of commitment and the other contempt and commitment order may not be considered as separate orders for purposes of punishment, Bourg relies on Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) and In re McGonagill, No. 02-07-034-CV 2007 Tex. App. LEXIS 1867, 2007 (Tex. App.--Fort Worth March 5, 2007, orig. proceeding). However, neither Sanchez nor McGonagill applies here.
In Sanchez, the Texas Supreme Court recognized that when a court may impose a sentence exceeding six months, a contemner may not be denied a right to a trial by jury. Sanchez, 703 S.W.2d at 957. It also noted that even when offenses are separate and the sentences for each contempt is less than six months, the contemner is entitled to a trial by jury "if the offenses are aggregated to run concurrently, so as to result in punishment exceeding six months." Id. Here, however, in regard to the trial court's "Order Revoking Suspension of Commitment and Confinement," the trial court had already assessed a punishment of confinement, which it later ordered suspended. In regard to the "Order of Enforcement," the trial court assessed punishment for new offenses committed by Bourg after she had previously been held in contempt.
In McGonagill, the trial court held that on 42 occasions, McGonagill had violated its temporary order to pay certain household expenses and deliver certain property to his wife. McGonagill, 2007 Tex. App. LEXIS 1867, at *2. The trial court sentenced McGonagill to confinement for 10 days for each violation, but suspended commitment conditioned on McGonagill paying certain indebtedness and delivering certain property to his former spouse. Id. Based on allegations that McGonagill had failed to perform the conditions of the suspension of commitment, his former spouse filed a motion to revoke his suspension of commitment. Id. at *3. That same day, his former spouse filed another enforcement motion, alleging that McGonagill had failed to comply with the decree in several respects. Id. After a hearing, the trial court granted the two motions, revoked the suspension of the commitment, and held McGonagill in contempt for failure to comply with the decree. Id. For his failure to comply with the decree, the trial court sentenced McGonagill to confinement for three days. Id. McGonagill petitioned the court of appeals for habeas corpus relief, asserting, among other things, that the trial court's first contempt order sentencing him to 420 days' confinement violated his right to a trial by jury because the sentence exceeded 180 days. Id. at *4-5. The court of appeals granted habeas corpus relief because Mc Gonagill, in the original contempt proceeding, had not waived his right to a trial by jury. Id. at *7-8.
Here, the trial court did not aggregate separate offenses together so that the punishment of confinement exceeded 180 days. Rather, the trial court simply revoked the previous suspension of Bourg's first commitment and then assessed a punishment for subsequently committed contemptuous acts.
Bourg is currently confined pursuant to the trial court's "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" (revocation order), serving the reinstated 155-day balance of the punitive contempt sentence the trial court assessed in 2004 for acts committed in 2004 or before. The fact that the trial court issued a new contempt order, finding subsequent violations committed by Bourg and assessing a new and separate punishment for the acts, does not void the revocation order for lack of a jury waiver.
Sufficiency of the Evidence to Support Contempt Findings
Next, Bourg asserts that there is legally insufficient evidence to support six of the trial court's contempt findings in the "Order of Enforcement by Contempt for Violation of the Final Decree of Divorce . . . ." Because Bourg is not currently confined pursuant to this order, this ground for relief is not ripe and we do not address it.
Defective Notice of Charges
Finally, Bourg asserts that for 12 items (violations 26-36) there are inconsistencies between Clay's pleadings and the trial court's revocation order findings of breach of the September 21, 2004 order's terms and conditions of the suspension of commitment and the trial court's findings of contempt in the contempt order. Because Bourg is not confined pursuant to the contempt order, her complaints with respect to it are not ripe and we do not address them. With respect to her assertions regarding the revocation order, we note that they relate to only 12 of the 37 findings. Bourg does not attack the notice, proof, and findings relative to alleged violations 1-25. Proof of any one alleged violation is sufficient to support an order revoking community supervision. In re B.C and N.C., 187 S.W.3d 721, 724 (Tex. App.--Tyler 2006, orig. proceeding).
Thus, notice of one or more alleged breaches of the terms and conditions of the suspension of her commitment, which the trial court found to be true, is sufficient to support the validity of the order. Here, Bourg had notice of one or more of the ways that Clay alleged she had breached the terms and conditions of the suspension of commitment contained in the September 21, 2004 order. Because one or more of the allegations corresponded to the trial court's breach findings, Bourg has failed to discharge her burden to show that she is entitled to relief on the ground of lack of notice.
Conclusion
We conclude that Bourg has not shown that she is illegally restrained by the trial court's July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the County Jail." We further conclude that Bourg's challenges to the July 26, 2007 "Order for Enforcement by Contempt for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," are not ripe. We deny habeas corpus relief.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
1. It is unclear from the order of enforcement by contempt whether the trial court assessed one sentence of 180 days for all 37 violations or 37 sentences of 180 days to run concurrently.
2. U.S. Const. amend. VI.
Orders Pronounced September 19, 2007
MISCELLANEOUS
RELATOR IS ORDERED RELEASED ON BOND IN THE FOLLOWING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDING:
07‑0714
IN RE STEPHANIE ANN BOURG; from Harris County; 1st district (01‑07‑00623‑CV, ___ SW3d ___, 08‑27‑07) conditioned upon $250.00 bond
See Tex. R. App. P. 52.8(b)(3)
[Note: The petition for writ of habeas corpus remains pending before this Court.]
The First Court of Appeals Denied Habeas Corpus Relief
In re Bourg (Tex.App.- Houston [1st Dist.] Aug. 27, 2007)
August 27, 2007
Civil Causes Decided:
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Jennings
(Before Justices Taft, Jennings and Alcala)
01-07-00623-CV
In re Stephanie Ann Bourg--Appeal from 245th District Court of Harris County
[Trial Court Judge: Hon. Annette Galik n/k/a Judge Annette Kuntz]
IN RE STEPHANIE ANN BOURG, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
By a petition for writ of habeas corpus, relator, Stephanie Ann Bourg, asserts that she is illegally restrained and seeks relief from a July 26, 2007 order revoking a suspension of commitment and a separate, but contemporaneous, confinement and commitment order.
Statement of Facts
In 2001, Bourg and real party in interest, Chad Clay, had a son. In September 2003, the trial court granted Clay and Bourg's divorce, including an Agreed Order in Suit Affecting the Parent-Child Relationship. The decree contains an agreed permanent injunction prohibiting Bourg from coming within 500 feet of Clay's residence; engaging in harassing conduct directed toward Clay or their son; placing anonymous, offensive, and repetitious phone calls to Clay or their son; and committing family violence. On June 29, 2004, the trial court signed a final protective order containing many injunctive provisions similar to those in the September 2003 decree, enjoining Bourg from stalking, harassing, or contacting Clay and their son.
Subsequently, the trial court signed an agreed order holding Bourg in contempt for five violations of its divorce decree, sentencing her to confinement for 180 days for each separate violation, to run concurrently. The trial court noted that Bourg had been confined from June 4, 2004 to June 29, 2004, and suspended the remaining 155-day balance of the sentence, provided that Bourg abide by certain terms and conditions and comply with all the trial court's previous orders.
On July 18, 2006, the trial court signed an agreed temporary protective order prohibiting Bourg from (1) committing family violence, (2) communicating directly with Clay or their son in a threatening or harassing manner, and (3) communicating in any manner with Clay or their son except through Bourg's attorney. On November 10, 2006, the trial court signed a final protective order containing many injunctive provisions similar to the ones in the decree and the July 18, 2006 agreed temporary protective order.
Clay then filed his "First Amended Petition for Enforcement by Contempt for Violation of Permanent Injunctions, Agreed Temporary Protective Order and (2006) Final Protective Order and Motion to Revoke Suspension of Commitment . . . . " In his motion to revoke the suspension of commitment, Clay asserted, among other things, that Bourg failed to comply with "all the orders of the court." In the petition for enforcement, Clay alleged that Bourg had violated, on 37 separate occasions, the trial court's prior orders. Clay asked the trial court to hold Bourg in contempt for each of these violations and, as punishment, to sentence Bourg to 180 days confinement for each violation.
At the conclusion of a hearing on Clay's motion to revoke suspension of commitment and petition for enforcement by contempt, the trial court in its July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" ("revocation order"), found that Bourg, on 37 occasions, had contemptuously violated either its September 2003 divorce decree, its July 18, 2006 temporary protective order, or its November 10, 2006 final protective order. The trial court revokeed the suspension of commitment and ordered Bourg confined until completion of her sentence, i.e., for the unserved 155 days.
Contemporaneously, in its separate "Order for Enforcement for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," the trial court also found that Bourg's violations of its prior orders constituted new instances of contempt for which the trial court sentenced Bourg to confinement for 180 days. (1) The trial court ordered that this contempt sentence commence immediately upon Bourg's completion of the 155-day balance of the prior contempt sentence for the violations, which predated the allegations Clay made in his May 2, 2007 petition for enforcement by contempt.
Standard of Review
A habeas corpus petition is a collateral attack on a judgment, the purpose of which is not to determine the final guilt or innocence of the relator but to ascertain whether the relator has been confined unlawfully. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). The presumption is that the order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. proceeding) (citing Ex parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1990, orig. proceeding)). A writ of habeas corpus issues if a trial court's contempt order is beyond the court's power or the court did not afford the relator due process of law. Turner, 177 S.W.3d at 288 (citing In re Henry, 154 S.W.3d 594, 596 (Tex. 2005)). A relator bears the burden of showing that she is entitled to relief. Turner, 177 S.W.3d at 288 (citing Occhipenti, 796 S.W.2d at 808-09).
Right To A Jury Trial
Bourg first argues that she is entitled to habeas corpus relief because she was not afforded her Sixth Amendment (2) right to trial by jury for serious charges with a punishment of confinement in excess of 180 days.
Under the Sixth Amendment, an alleged contemnor has a right to a jury trial on a "serious" charge of criminal contempt. Ex parte Sproull, 815 S.W.2d 250 (Tex. 1991) (orig. proceeding) (citing Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976) (orig. proceeding). "A charge for which confinement may exceed six months is serious." Werblud, 536 S.W.2d at 547.
At the outset, we note that the trial court did not sentence Bourg to 335 days in jail. Rather, it first revoked suspension of commitment for the unserved 155 days of her previous confinement for prior violations. It then, for new acts of contempt, assessed a punishment that did not exceed 180 days.
The trial court revoked the suspension of commitment in its September 21, 2004 "Agreed Order Holding Respondent in Contempt" ("Agreed Contempt Order") and ordered Bourg incarcerated "until completion of sentence as heretofore rendered by this Court." (Emphasis added.) Bourg agreed to serve five sentences of confinement for 180 days to run concurrently, for each of the five stipulated and agreed to violations of the September 2003 divorce decree. Since Bourg had served 25 days in confinement, from June 4, 2004 to June 29, 2004, she had a balance of 155 suspended and unserved days left to serve on the sentence.
In support of her argument that the trial court's two orders, one revoking the prior suspension of commitment and the other contempt and commitment order may not be considered as separate orders for purposes of punishment, Bourg relies on Ex parte Sanchez, 703 S.W.2d 955, 957 (Tex. 1986) and In re McGonagill, No. 02-07-034-CV 2007 Tex. App. LEXIS 1867, 2007 (Tex. App.--Fort Worth March 5, 2007, orig. proceeding). However, neither Sanchez nor McGonagill applies here.
In Sanchez, the Texas Supreme Court recognized that when a court may impose a sentence exceeding six months, a contemner may not be denied a right to a trial by jury. Sanchez, 703 S.W.2d at 957. It also noted that even when offenses are separate and the sentences for each contempt is less than six months, the contemner is entitled to a trial by jury "if the offenses are aggregated to run concurrently, so as to result in punishment exceeding six months." Id. Here, however, in regard to the trial court's "Order Revoking Suspension of Commitment and Confinement," the trial court had already assessed a punishment of confinement, which it later ordered suspended. In regard to the "Order of Enforcement," the trial court assessed punishment for new offenses committed by Bourg after she had previously been held in contempt.
In McGonagill, the trial court held that on 42 occasions, McGonagill had violated its temporary order to pay certain household expenses and deliver certain property to his wife. McGonagill, 2007 Tex. App. LEXIS 1867, at *2. The trial court sentenced McGonagill to confinement for 10 days for each violation, but suspended commitment conditioned on McGonagill paying certain indebtedness and delivering certain property to his former spouse. Id. Based on allegations that McGonagill had failed to perform the conditions of the suspension of commitment, his former spouse filed a motion to revoke his suspension of commitment. Id. at *3. That same day, his former spouse filed another enforcement motion, alleging that McGonagill had failed to comply with the decree in several respects. Id. After a hearing, the trial court granted the two motions, revoked the suspension of the commitment, and held McGonagill in contempt for failure to comply with the decree. Id. For his failure to comply with the decree, the trial court sentenced McGonagill to confinement for three days. Id. McGonagill petitioned the court of appeals for habeas corpus relief, asserting, among other things, that the trial court's first contempt order sentencing him to 420 days' confinement violated his right to a trial by jury because the sentence exceeded 180 days. Id. at *4-5. The court of appeals granted habeas corpus relief because Mc Gonagill, in the original contempt proceeding, had not waived his right to a trial by jury. Id. at *7-8.
Here, the trial court did not aggregate separate offenses together so that the punishment of confinement exceeded 180 days. Rather, the trial court simply revoked the previous suspension of Bourg's first commitment and then assessed a punishment for subsequently committed contemptuous acts.
Bourg is currently confined pursuant to the trial court's "Order Revoking Suspension of Commitment and for Commitment in the Harris County Jail" (revocation order), serving the reinstated 155-day balance of the punitive contempt sentence the trial court assessed in 2004 for acts committed in 2004 or before. The fact that the trial court issued a new contempt order, finding subsequent violations committed by Bourg and assessing a new and separate punishment for the acts, does not void the revocation order for lack of a jury waiver.
Sufficiency of the Evidence to Support Contempt Findings
Next, Bourg asserts that there is legally insufficient evidence to support six of the trial court's contempt findings in the "Order of Enforcement by Contempt for Violation of the Final Decree of Divorce . . . ." Because Bourg is not currently confined pursuant to this order, this ground for relief is not ripe and we do not address it.
Defective Notice of Charges
Finally, Bourg asserts that for 12 items (violations 26-36) there are inconsistencies between Clay's pleadings and the trial court's revocation order findings of breach of the September 21, 2004 order's terms and conditions of the suspension of commitment and the trial court's findings of contempt in the contempt order. Because Bourg is not confined pursuant to the contempt order, her complaints with respect to it are not ripe and we do not address them. With respect to her assertions regarding the revocation order, we note that they relate to only 12 of the 37 findings. Bourg does not attack the notice, proof, and findings relative to alleged violations 1-25. Proof of any one alleged violation is sufficient to support an order revoking community supervision. In re B.C and N.C., 187 S.W.3d 721, 724 (Tex. App.--Tyler 2006, orig. proceeding).
Thus, notice of one or more alleged breaches of the terms and conditions of the suspension of her commitment, which the trial court found to be true, is sufficient to support the validity of the order. Here, Bourg had notice of one or more of the ways that Clay alleged she had breached the terms and conditions of the suspension of commitment contained in the September 21, 2004 order. Because one or more of the allegations corresponded to the trial court's breach findings, Bourg has failed to discharge her burden to show that she is entitled to relief on the ground of lack of notice.
Conclusion
We conclude that Bourg has not shown that she is illegally restrained by the trial court's July 26, 2007 "Order Revoking Suspension of Commitment and for Commitment in the County Jail." We further conclude that Bourg's challenges to the July 26, 2007 "Order for Enforcement by Contempt for Violation of the Final Decree of Divorce, Agreed Temporary Protective Order and (2006) Final Protective Order and for Commitment in the Harris County Jail," are not ripe. We deny habeas corpus relief.
Terry Jennings
Justice
Panel consists of Justices Taft, Jennings, and Alcala.
1. It is unclear from the order of enforcement by contempt whether the trial court assessed one sentence of 180 days for all 37 violations or 37 sentences of 180 days to run concurrently.
2. U.S. Const. amend. VI.
Friday, September 14, 2007
Sep. 2007 Supreme Court Action on Petitions for Review
Sep. 28, 2007 - Texas high court grants two petitions for review, and denies numerous others.
THE FOLLOWING PETITIONS FOR REVIEW ARE GRANTED:
06‑0814
TEXAS MUTUAL INSURANCE COMPANY v. PAULA LEDBETTER, REPRESENTATIVE OF THE ESTATE OF CHARLES WADE LEDBETTER, INDIVIDUALLY AND AS NEXT FRIEND OF DUSTIN WADE LEDBETTER, A MINOR, AND TONJA LEDBETTER AND JAMIE LEDBETTER, INDIVIDUALLY; from Jones County; 11th district (11‑05‑00098‑CV, 192 SW3d 912, 06‑01‑06)2 petitions
[Note: This case has been set for oral argument at 9:00 a.m., November 15, 2007.]Time allotted to argue: 20/20 minutes
06‑1071
STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district (05‑05‑00640‑CV, 204 SW3d 897, 10‑27‑06)
[Note: This case has been set for oral argument at 9:00 a.m., January 15, 2008.]Time allotted to argue: 20/20 minutes
Petitions for review denied September 28, 2007 by the Texas Supreme Court
05‑0954
STEVEN F. BRIGHT, STEVEN F. BRIGHT P.C., CRYSTA ENTERTAINMENT, N.V. v. HOWARD ADDISON, CHARLES B. LOWE AND QUESTCOM, INC., F/K/A QUEST WIRELESS COMMUNICATIONS, INC.; from Dallas County; 5th district (05‑04‑00170‑CV, 171 SW3d 588, 08‑03‑05)2 petitions
06‑0709
PAMELA GRIGGS v. TRIPLE S INDUSTRIAL CORPORATION; from Jefferson County; 9th district (09‑05‑00365‑CV, 197 SW3d 408, 06‑29‑06)
07‑0081
TRICON TOOL & SUPPLY, INC. v. BRUCE E. THUMANN; from Harris County; 1st district (01‑04‑01061‑CV, 226 SW3d 494, 11‑16‑06)
07‑0210
DAVID HIJAR, LUPE WIEBEL AND PATRICIA VILLEGAS v. SCI TEXAS FUNERAL SERVICES, INC., PROFESSIONAL FUNERAL ASSOCIATES, INC., SCIT HOLDINGS, INC., SCI FUNERAL SERVICES, INC., AND SERVICE CORPORATION INTERNATIONAL; from El Paso County; 8th district (08‑05‑00182‑CV, ___ SW3d ___, 01‑11‑07)
07‑0290
SAN ANTONIO BUILDING AND CONSTRUCTIONS TRADES COUNCIL, TIM MCGRATH AND BOB SALVATORE v. CITY OF SAN ANTONIO; from Bexar County; 4th district (04‑05‑00675‑CV, 224 SW3d 738, 02‑21‑07)
07‑0293
GILBANE BUILDING COMPANY v. TWO TURNERS ELECTRIC COMPANY, DOING BUSINESS AS TURNER ELECTRIC COMPANY; from Harris County; 14th district (14‑05‑00908‑CV, ___ SW3d ___, 02‑27‑07)
07‑0319
THE CITY OF LUBBOCK, TEXAS v. CHARLES EMMANUEL BOSLER, AS SURVIVING PARENT OF COURTNEY NICHOLE HILDA BOSLER AND AS GUARDIAN OF COLTON ETHAN C. BOSLER; from Lubbock County; 7th district (07‑05‑00283‑CV, ___ SW3d ___, 03‑07‑07)
07‑0329
RAYMOND L. COLLINS v. TED BLANCHARD, GUY WHITFORD, AND THE BEAUMONT TRANSITIONAL TREATMENT CENTER; from Jefferson County; 9th district (09‑06‑00116‑CV, ___ SW3d ___, 03‑08‑07)
07‑0336
ADMINISTRATIVE EXCHANGE, INC. v. CDI ENGINEERING GROUP, INC.; from Harris County; 14th district (14‑05‑00621‑CV, ___ SW3d ___, 03‑08‑07)
07‑0349
SHIOLENO INDUSTRIES, INC. v. COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY, L.P. AND COLUMBIA NORTH TEXAS SUBSIDIARY, GP, LLC D/B/A MEDICAL CENTER OF ARLINGTON; from Tarrant County; 2nd district (02‑06‑00016‑CV, ___ SW3d ___, 03‑15‑07)2 petitions
07‑0352
ERICK SLOMAN-MOLL, M.D. v. MARIA ESTELLA CHAVEZ, ET AL.; from Webb County; 4th district (04‑06‑00589‑CV, ___ SW3d ___, 02‑28‑07)
07‑0354
CHEMJECT INTERNATIONAL, INC. v. SOUTHWESTERN BELL TELEPHONE COMPANY, MICHAEL P. LYNN, P.C., JEFFREY M. TILLOTSON, P.C., MICHAEL R. COWEN, JOHN T. COX III AND LYNN TILLOTSON & PINKER, LLP; from Cameron County; 13th district (13‑06‑00032‑CV, ___ SW3d ___, 01‑25‑07)
07‑0355
CHEMJECT INTERNATIONAL, INC. v. SOUTHWESTERN BELL TELEPHONE COMPANY, JOSE MIRELES AND PATRICIA GENUCHI; from Cameron County; 13th district (13‑04‑00567‑CV, ___ SW3d ___, 01‑25‑07)
07‑0359
OSCAR C. GORDON; FILIBERTO COLMENERO AND WIFE, MELINDA COLMENERO; RUMALDA M. RODRIGUEZ; FRANK W. WIESEHAN AND MARY JANE WIESEHAN v. SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑06‑00699‑CV, ___ SW3d ___, 03‑14‑07)
consolidated with
07‑0363
OSCAR C. GORDON; FILIBERTO COLMENERO AND WIFE, MELINDA COLMENERO; RUMALDA M. RODRIGUEZ; FRANK W. WIESEHAN AND MARY JANE WIESEHAN v. SAN ANTONIO WATER SUPPLY; from Bexar County; 4th district (04‑06‑00700‑CV, ___ SW3d ___, 03‑14‑07)
consolidated with
07‑0364
OSCAR C. GORDON; FILIBERTO COLMENERO AND WIFE, MELINDA COLMENERO; RUMALDA M. RODRIGUEZ; FRANK W. WIESEHAN AND MARY JANE WIESEHAN v. SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑06‑00701‑CV, ___ SW3d ___, 03‑14‑07)
consolidated with
07‑0365
OSCAR C. GORDON; FILIBERTO COLMENERO AND WIFE, MELINDA COLMENERO; RUMALDA M. RODRIGUEZ; FRANK W. WIESEHAN AND MARY JANE WIESEHAN v. SAN ANTONIO WATER SYSTEM; from Bexar County; 4th district (04‑06‑00702‑CV, ___ SW3d ___, 03‑14‑07)
07‑0367
THEODORE HASSON, ET AL. v. LANNA L. LEE, ET AL.; from Harris County; 14th district (14‑05‑00004‑CV, ___ SW3d ___, 01‑30‑07)
07‑0371
CITY OF MCALLEN v. MICHAEL ZELLERS, ET AL.; from Hidalgo County; 13th district (13‑06‑00470‑CV, ___ SW3d ___, 03‑01‑07)
07‑0398
JOSEPH KNUTE NIVENS, WILBUR DUNTEN, MARVIN FONTENOT, ET. AL. v. CITY OF LEAGUE CITY; from Galveston County; 1st district (01‑05‑00335‑CV, ___ SW3d ___, 04‑05‑07)
07‑0412
DRC DISTRIBUTORS, LTD. v. MARY RAMIREZ, JENNIFER ANGELA GOMEZ, STACY AMY ROBERTS, SARA ANN SOSA, AND ISELA VILLARREAL; from Cameron County; 13th district (13‑04‑00679‑CV, ___ SW3d ___, 03‑01‑07)
07‑0459
CNOOC SOUTHEAST ASIA LTD., CNOOC LTD., AND CNOOC SES LTD. v. PALADIN RESOURCES (SUNDA) LIMITED; from Dallas County; 5th district (05‑05‑01256‑CV, 222 SW3d 889, 04‑24‑07)2 petitionsas corrected
07‑0464
MOTOR VEHICLE DIVISION OF THE TEXAS DEPARTMENT OF TRANSPORTATION v. PREVOST CAR (US) INC.; from Travis County; 3rd district (03‑04‑00373‑CV, ___ SW3d ___, 09‑26‑06)
07‑0466
ROBERT SPIEGEL v. KLRU ENDOWMENT FUND, DAVID ROBB, MATTHEW HOWARD ROBB, ANDREW OSBORN ROBB, AND DAVID GAMBLE YORK; from Hays County; 3rd district (03‑06‑00593‑CV, ___ SW3d ___, 04‑26‑07)
07‑0530
INN II, LTD. PARTNERSHIP AND P. MCGREGOR ENTERPRISES, INC. v. DENMAN BUILDING PRODUCTS, LTD.; from Potter County; 7th district (07‑05‑00385‑CV, ___ SW3d ___, 04‑24‑07)
07‑0577
LMC COMPLETE AUTOMOTIVE, INC. v. RONALD BURKE; from Harris County; 1st district (01‑06‑0694‑CV, ___ SW3d ___, 06‑21‑07)
07‑0589
GENERAL ELECTRIC CAPITAL CORPORATION v. TIMOTHY J. GOLLIN AND ICO, INC.; from Harris County; 14th district (14‑05‑01095‑CV, ___ SW3d ___, 06‑12‑07)
(Justice O'Neill not sitting)
07‑0643
HOLLIE GERBER v. HARRIS COUNTY; from Harris County; 14th district (14‑06‑01096‑CV, ___ SW3d ___, 07‑10‑07)
07‑0650
DAVID HICKMAN v. ROYCE DUDENSING; from Austin County; 1st district (01‑06‑00458‑CV, ___ SW3d ___, 05‑24‑07)
07‑0666
ROY VERNON FLOYD v. DR PARTNERS, D/B/A SHERMAN HERALD DEMOCRAT; from Fannin County; 6th district (06‑07‑00001‑CV, ___ SW3d ___, 07‑05‑07)
THE FOLLOWING PETITION FOR REVIEW IS STRUCK PURSUANT TO TEXAS RULE OF APPELLATE PROCEDURE 9.4(i):
07‑0762
CATHY BURGESS v. MOHAMMAD FEGHHI; from Smith County; 12th district (12‑04‑00367‑CV, ___ SW3d ___, 07‑31‑07)
The Court strikes the petition for review with the following notations: "The petition violates Texas Rules of Appellate Procedure 53.2(a-k) and is struck. Petitioner is ordered to redraw; the redrawn petition is due to be filed October 8, 2007."
Petitions for Review (PFRs) Denied by the Texas Supreme Court on September 21, 2007:
07‑0391
SAMUEL FERTIC v. JOE A. SPENCER; from El Paso County; 8th district (08‑05‑00268‑CV, ___ SW3d ___, 04‑19‑07)
07‑0489
ROTATING SERVICES INDUSTRIES, INC. v. SUE HARRIS D/B/A THE HARRIS AGENCY AND NATIONWIDE LIFE INSURANCE COMPANY; from Harris County; 1st district (01‑05‑00874‑CV, ___ SW3d ___, 04‑26‑07)
07‑0531
RONALD J. HOLLEMAN v. DR. JOSEPH VADAS, M.D., ET AL.; from Karnes County; 4th district (04‑05‑00875‑CV, ___ SW3d ___, 04‑11‑07)
07‑0538
TERRENCE M. GORE v. HOMECOMINGS FINANCIAL NETWORK, INC. WILSHIRE FINANCIAL SERVICES GROUP, AND WILSHIRE CREDIT CORP.; from Dallas County; 5th district (05‑07‑00122‑CV, ___ SW3d ___, 03‑29‑07)
07‑0553
ALFRED LEE STONE v. VICKERS L. CUNNINGHAM; from Dallas County; 5th district (05‑06‑01151‑CV, ___ SW3d ___, 04‑25‑07)motion for additional certified copies dismissed as moot
07‑0569
BERNARD V. CARRICO AND JUDITH A. CARRICO v. GEORGE P. KONDOS AND CAROL C. KONDOS; from Denton County; 2nd district (02‑05‑00374‑CV, ___ SW3d ___, 03‑08‑07)
07‑0573
KRISTINE ARLITT v. GRAHAM WESTON, INDIVIDUALLY AND D/B/A SONESTA HOLDINGS; AND PILF INVESTMENTS, INC.; from Bexar County; 4th district (04‑06‑00458‑CV, ___ SW3d ___, 06‑06‑07)
07‑0584
MARY ELIZABETH GRIGGS v. AMARILLO NURSING CENTER, INC.; from Randall County; 7th district (07‑06‑00464‑CV, ___ SW3d ___, 05‑17‑07)
07‑0609
JAMES A. HOWARD, RECEIVER FOR TESHER CORP. v. COUNTRYWIDE HOME LOANS, INC.; from Travis County; 3rd district (03‑06‑00733‑CV, ___ SW3d ___, 06‑19‑07)
07‑0630
BRAD SELMAN v. STEPHENS EQUIPMENT, INC.; from Hamilton County; 10th district (10‑06‑00131‑CV, ___ SW3d ___, 05‑30‑07)
07‑0634
URBAN CONCRETE CONTRACTORS, LTD. v. S.M. WILSON & COMPANY; from Bexar County; 4th district (04‑06‑00227‑CV, ___ SW3d ___, 05‑16‑07)
Mandamus Petitions Denied or Dismissed Sep. 21, 2007:
07‑0629
IN RE LEOPOLDO LEAL; from Bee County
07‑0631
IN RE CLEON E. ASHWORTH; from Montgomery County
THE FOLLOWING PETITIONS FOR WRIT OF MANDAMUS ARE DISMISSED PURSUANT TO SETTLEMENT:
07‑0098
IN RE TYRELL G. GARTH, ROBERT VERDE, MIKE FULJENZ, AND ED HEIN; from Jefferson County; 9th district (09‑06‑00527‑CV, ___ SW3d ___, 01‑18‑07)unopposed motion to dismiss petition for writ of mandamus pursuant to settlement granted
07‑0264
IN RE CARDINAL HEALTH 109, INC., BARBATUNDE OYEDIRAN AND MARIBEL ALFARO; from Cameron County; 13th district (13‑07‑00051‑CV, ___ SW3d ___, 03‑23‑07)motion to dismiss petition for writ of mandamus granted
THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS DISMISSED AS MOOT:
07‑0646
EX PARTE ISAAC F. HERNANDEZ
THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS DISMISSED:
05‑1043
IN RE LIVING CENTERS OF TEXAS, INC., D/B/A SOUTHFIELD HEALTHCARE CENTER; from Harris County; 1st district (01‑05‑00115‑CV, 178 SW3d 279, 07‑28‑05)motion to dismiss petition for writ of mandamus granted
Petitions for Review Denied by the Texas Supreme Court on September 14, 2007:
No. 07‑0543
SHIRLEY MOORE YORK, WIDOW OF BEN PRONCELL YORK, DECEASED v. WILLIAM A. SAMUEL AND MARGARET SAMUEL; from Harris County; 1st district (01‑05‑00549‑CV, York v. Samuel (Tex.App. - Houston [1st Dist.] Apr. 5, 2007)(Alcala)[probate dispute over real estate, eviction, forcible entry and detaimer, FED, forcible detainer, FD, defective title, constructive trust]___ SW3d ___, 04‑05‑07)
No. 07‑0557
GREGORY AND EDNA POLYDORE v. J.P. MORGAN CHASE BANK; from Collin County; 5th district (05‑06‑00735‑CV, ___ SW3d ___, 05‑08‑07)
No. 07‑0590
TONYA GARNER v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES; from Travis County; 3rd district (03‑06‑00237‑CV, ___ SW3d ___, 06‑14‑07)
No. 07‑0592
GRUBBS NISSAN MID-CITIES, LTD. v. BRETT BRAY, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE MOTOR VEHICLE DIVISION OF THE TEXAS DEPARTMENT OF TRANSPORTATION, DON DAVIS NISSAN GRAPEVINE, INC., AND NISSAN NORTH AMERICA, INC.; from Travis County; 3rd district (03‑06‑00357‑CV, ___ SW3d ___, 05‑23‑07)
No. 07‑0607
ZANE KIEHNE v. THOMAS E. JONES; from Loving County; 8th district (08‑07‑00075‑CV, ___ SW3d ___, 06‑21‑07)
Mandamus Petitions Denied Sep. 14, 2007
No. 07‑0603
IN RE R WAYNE JOHNSON; 7th district
No. 07‑0616
IN RE ROBERT SOLIS; from Wichita County; 2nd district (02‑07‑00146‑CV, ___ SW3d ___, 05‑08‑07)motion to suspend rules dismissed as moot
No. 07‑0637
IN RE RALPH O. DOUGLAS; from Harris County; 1st district (01‑07‑00034‑CV, ___ SW3d ___, 05‑24‑07)
Other Sep. 14, 2007 Orders:
A STAY IS ISSUED IN THE FOLLOWING PETITION FOR WRIT OF MANDAMUS:
No. 07‑0571
IN RE SATTERFIELD & PONTIKES CONSTRUCTION, INC.; from Duval County; 4th district (04‑07‑00301‑CV, ___ SW3d ___, 06‑20‑07) motion for emergency stay granted stay order issued
[Note: The redrafted petition for writ of mandamus remains pending before this Court.]
Friday, September 7, 2007
Texas A&M Univ. System v. Koseoglu decided - Supreme Court takes further step to curtail state employees' rights in the name of sovereign immunity
Texas A&M University System vs. Sefa Koseoglu, No. 05‑0321 (Tex. September 7, 2007)(Justice Green)
Sep. 7, 2007 - Texas Supreme Court endorses dismissal of public university employee's breach of contract claim against employer with prejudice even though court did not reach the merits for lack of jursidiction and employee could seek legislative permission to sue. Court also holds that public official sued in his official capacity is entitled to interlocutory appeal when trial court denies jurisdictional plea, reverses lower court on that issue, and renders judgment for both governmental defendants. In resolving conflicting holdings by the lower courts of appeals, today's decision establishes new state-wide precedent on an important issue in the area of sovereign immunity.
Justice Green delivered the opinion of the Court:
In this case we consider whether a plaintiff who, on appeal, loses a plea to the jurisdiction based on sovereign immunity is entitled to a remand for an opportunity to cure the jurisdictional pleading defect. We conclude that when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to amend. Additionally, we must interpret section 51.014(a) of the Texas Civil Practice and Remedies Code to determine whether appellate courts have jurisdiction to consider a government official’s appeal of a trial court’s denial of a plea to the jurisdiction based on sovereign immunity. We conclude that Section 51.014(a)(8) vests appellate courts with such jurisdiction.
* * *
Conclusion. With respect to the trial court’s denial of Texas A&M’s plea to the jurisdiction, we affirm the portion of the court of appeals’ judgment holding that Koseoglu’s breach of contract claims against Texas A&M were barred by sovereign immunity. But because Koseoglu’s pleadings are incurably defective, remanding the cause to the trial court will serve no legitimate purpose. Therefore, we reverse the court of appeals’ remand order and dismiss Koseoglu’s claims against Texas A&M with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is with prejudice).
With respect to McLellan’s appeal, having examined the plain language of Section 51.014(a)(8), its logical application, and the legislative history, we hold a state official may seek interlocutory appellate review from the denial of a jurisdictional plea. Accordingly, we reverse that portion of the court of appeals’ judgment that it was without jurisdiction to decide McLellan’s appeal of the trial court’s denial of his jurisdictional plea and, under Rule 60.2(c) of the Texas Rules of Appellate Procedure, we render the judgment the court of appeals should have rendered.
Like Koseoglu’s pleadings against Texas A&M, his pleadings against McLellan were deficient in the sense that he never had an actionable Section 1983 claim. In both instances, Koseoglu deserves the opportunity to amend his pleadings if they can be cured, but in both instances, because Koseoglu’s underlying claim is one for breach of contract, the defects cannot be cured. Accordingly, just as we dismissed Koseoglu’s claim against Texas A&M with prejudice, we likewise dismiss with prejudice the claim against McLellan in his official capacity.
Texas A&M Univ. Sys. v. Koseoglu, No. 05‑0321 (Tex. Sep. 7, 2007)
TEXAS A&M UNIVERSITY SYSTEM, TEXAS ENGINEERING EXPERIMENT STATION, AND DR. MARK MCLELLAN v. DR. SEFA KOSEOGLU; from Brazos County; 10th district (10‑03‑00375‑CV, 167 SW3d 375, 03‑09‑05)
The Court affirms in part and reverses in part the court of appeals' judgment and dismisses the case. Justice Paul W. Green delivered the opinion of the Court.
Opinion below: Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006)(oral argument heard on November 14, 2006 by the Texas Supreme Court); Texas Supreme Court Cause No. 05-0321 (also see --> e-briefs)
Sep. 7, 2007 - Texas Supreme Court endorses dismissal of public university employee's breach of contract claim against employer with prejudice even though court did not reach the merits for lack of jursidiction and employee could seek legislative permission to sue. Court also holds that public official sued in his official capacity is entitled to interlocutory appeal when trial court denies jurisdictional plea, reverses lower court on that issue, and renders judgment for both governmental defendants. In resolving conflicting holdings by the lower courts of appeals, today's decision establishes new state-wide precedent on an important issue in the area of sovereign immunity.
Justice Green delivered the opinion of the Court:
In this case we consider whether a plaintiff who, on appeal, loses a plea to the jurisdiction based on sovereign immunity is entitled to a remand for an opportunity to cure the jurisdictional pleading defect. We conclude that when a pleading cannot be cured of its jurisdictional defect, a plaintiff is not entitled to amend. Additionally, we must interpret section 51.014(a) of the Texas Civil Practice and Remedies Code to determine whether appellate courts have jurisdiction to consider a government official’s appeal of a trial court’s denial of a plea to the jurisdiction based on sovereign immunity. We conclude that Section 51.014(a)(8) vests appellate courts with such jurisdiction.
* * *
Conclusion. With respect to the trial court’s denial of Texas A&M’s plea to the jurisdiction, we affirm the portion of the court of appeals’ judgment holding that Koseoglu’s breach of contract claims against Texas A&M were barred by sovereign immunity. But because Koseoglu’s pleadings are incurably defective, remanding the cause to the trial court will serve no legitimate purpose. Therefore, we reverse the court of appeals’ remand order and dismiss Koseoglu’s claims against Texas A&M with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004) (holding that dismissal pursuant to a plea to the jurisdiction based on sovereign immunity is with prejudice).
With respect to McLellan’s appeal, having examined the plain language of Section 51.014(a)(8), its logical application, and the legislative history, we hold a state official may seek interlocutory appellate review from the denial of a jurisdictional plea. Accordingly, we reverse that portion of the court of appeals’ judgment that it was without jurisdiction to decide McLellan’s appeal of the trial court’s denial of his jurisdictional plea and, under Rule 60.2(c) of the Texas Rules of Appellate Procedure, we render the judgment the court of appeals should have rendered.
Like Koseoglu’s pleadings against Texas A&M, his pleadings against McLellan were deficient in the sense that he never had an actionable Section 1983 claim. In both instances, Koseoglu deserves the opportunity to amend his pleadings if they can be cured, but in both instances, because Koseoglu’s underlying claim is one for breach of contract, the defects cannot be cured. Accordingly, just as we dismissed Koseoglu’s claim against Texas A&M with prejudice, we likewise dismiss with prejudice the claim against McLellan in his official capacity.
Texas A&M Univ. Sys. v. Koseoglu, No. 05‑0321 (Tex. Sep. 7, 2007)
TEXAS A&M UNIVERSITY SYSTEM, TEXAS ENGINEERING EXPERIMENT STATION, AND DR. MARK MCLELLAN v. DR. SEFA KOSEOGLU; from Brazos County; 10th district (10‑03‑00375‑CV, 167 SW3d 375, 03‑09‑05)
The Court affirms in part and reverses in part the court of appeals' judgment and dismisses the case. Justice Paul W. Green delivered the opinion of the Court.
Opinion below: Texas A&M Univ. Sys. v. Koseoglu, 167 S.W.3d 374 (Tex.App.--Waco 2005, pet. granted May 26, 2006)(oral argument heard on November 14, 2006 by the Texas Supreme Court); Texas Supreme Court Cause No. 05-0321 (also see --> e-briefs)
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