About Me

My Photo

Joe's Dad and Brenda's Husband.

Saturday, February 28, 2015

Federal Court of Appeals Decisions without a Trial Court Judgment

There are very few exceptions to the general rule that you cannot have an appeal without a prior trial court dispute. 
One apparent exception is that the Supreme Court of the United States is not merely an appellate court. The United States Constitution says in Article III, Section 2 in the second paragraph says that "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction." In these cases, the Supreme Court commonly appoints a master to take the facts in a case and then renders a legal decision on those facts. thought it need not according to Supreme Court Rule 17 and other law.
In order to understand the one ordinary exception to this rule, you have to understand the difference between courts that are created under Article III of the United States Constitution, the main ones being the Supreme Court of the United States, the United States Courts of Appeals and the United States District Courts and non-Article III tribunals. Article III courts are the courts which are the models for America's judicial independence. The judges' pay cannot be reduced during their time in office and Article III judges cannot be removed except by impeachment of the House of Representatives and conviction by two-thirds of the Senate. Non-Article III judges lack these protections- they are chosen for fixed terms and are easier to remove. Non-Article III courts are generally decision-making bodies for specialized agencies, for example, United States Citizenship and Immigration Services, or the Environment Protection Agency. Federal statutes often provide that the final administrative decisions of such bodies may receive their first Article III proceeding in a court of appeals instead of a district court. E.g. Commodity Futures Trading Commission v. Schor,  478 U.S. 833 (1986)

Thursday, February 19, 2015

The Texas Supreme Court Changes a Common-Law Rule

In the beginning was Carnation Co. v. Wong, 516 S.W.2d 116 (Tex. 1974) holding that evidence of use or nonuse of seat belts would not affect plaintiffs' recovery in auto negligence suits.  Eleven years later the legislature enacted a law that evidence of use or nonuse of seat belts was not admissible in a civil trial, then swept that pro-plaintiff rule away in 2003. So the Carnation rule sprung up again, but the Texas Supremes reverse it now, arguing that the rule was to protect plaintiffs from the old rule that any responsibility of the plaintiff would cause the plaintiff a total loss. Now that rule is gone, and seat belts are required by law. Justice Jeff  Brown wrote for a unanimous court.  Well Services v. Romero, No. 13-0136 (Tex. Feb. 13, 2015)

Wednesday, January 28, 2015

Can't slap attorney's fees on an indigent criminal defendant

Clifton James Taylor was found to be indigent at the beginning of his case and was lucky enough to get Judith Shields, a doughy criminal defense fighter from Conroe. Taylor pleaded guilty to third degree felony assault against a family member and went to the judge for punishment. Among the penalties the judge rendered was attorney's fees. Shields took this up on appeal along with another issue. Justice Leanne Johnson wrote for a panel including Chief Justice Steve McKeithen and Justice Hollis Horton removing the attorney's fees. Credit should be given to the Montgomery County District Attorney's Office for graciously conceding this point before the opinion was rendered.
Taylor was found indigent at the beginning of the trial court case. No one alleged that his indigent condition had changed during the course of the proceedings so the law of the case at the end of the trial was that he was indigent, and that therefore charging his attorney's fees was in appropriate.
Criminal defense lawyers, check for this in your judgments and know at least one case to cite before your trial judge and the State.
Taylor v. State, No. 09-14-00039-CR  (Tex. App.-- Beaumont Jan. 28, 2015, no pet. h.) (mem. op.) available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9cfac722-1afc-4640-854d-3e4affb5a49d&MediaID=f537d09f-36e3-4448-8e1c-55ee9a0921b3&coa=%22%20+%20this.CurrentWebState.CurrentCourt%20+%20@%22&DT=Opinion

Saturday, January 24, 2015

Many Texas Injunction Cases Can Result in Three Appeals Each.

The law recognizes that some bad acts are irreversible and provides the remedy of a temporary restraining order. Temporary restraining orders can be entered without notice to the restrained parties. Such a powerful procedure can be abused, which is why temporary restraining orders can be appealed. One of the rules of temporary restraining orders is that a TRO has a short period of validity and must be followed quickly by a hearing with all parties present, which may result in a temporary injunction until a real trial can get to its turn on the docket. The temporary injunction can be appealed, too. If there is a permanent injunction, as is common, the judgment in that case is final, and, therefore, appealable.


Wednesday, January 21, 2015

Federal Habeas Applicant May Have New Habeas Counsel instead of the Habeas Lawyers Who Missed His Application Deadline.

I like practicing post-judgment law because there are very few unremediable errors. In seeking federal habeas corpus relief from a criminal conviction one irredeemable error is to file the application after the one-year deadline of the Antiterrorism and Effective Death Penalty Act.
You can seek federal habeas relief from a state or federal conviction. Calculating exactly what the deadline is is very technical. Basically, the AEDPA clock does not run when a conviction is not final because of rights of appeal.
Let's start with a state conviction. If the state offers an appeal, an impoverished defendant must be offered an appeal with an appointed lawyer at no charge to the defendant, not even for the clerk's record and the trial transcript. 40 of America's 50 states have at least one court of appeals intermediate between the trial court and the state's highest court.  In those states, the convict has a right to an appeal to one of those intermediate courts at no cost to the convict, but not to the state's highest court. In the other ten states, the appeal you get is to the highest court. Every state offers state habeas relief, It is nearly always wise, for strategic reasons, to seek your habeas writ after you have exhausted your appeals. The most common example of a reason to seek your writ after you've exhausted your appeal remedies is that you generally can't complain of ineffective assistance of counsel on appeal, but you can on a writ application. Now, if you're seeking relief from a state sentence, you can't get federal relief like this unless you have exhausted all of your state remedies. While your state habeas application, is pending, the AEDPA clock is not running. But when you are not open for appellate relief or writ relief, the clock does run, and if you don't file your federal writ application within that year, it is highly likely lost forever.
A federal sentence is easier. Because federal authority outranks state authority, there are no state remedies remedies to exhaust. The AEDPA clock only starts to run after there is no appellate power-- it's all federal authority. Like for the state conviction, wait more than your one year to apply for your federal writ, and it will almost surely be lost.
The Supreme Court of the United States decided yesterday that a death-penalty defendant whose appointed habeas counsel waited too long to file his federal writ application did not have to keep them while they tried to get around their mistake and get a late appeal. He had a right to have them dismissed and replaced with other federal appellate counsel who would not have the conflict of interest in having to defend their own error while trying to get it excused.
Justice Alito dissented, joined by Justice Thomas. They argued that their court should have decided whether or not it was possible to toll (that is, avoid) the deadline. If the deadline could not be tolled, it would not matter if the defendant got new counsel or not.
Christeson v. Roper, 574 U.S. ___, No. 14-6873 (Jan. 20, 2015)  (Roberts, C.J.,  Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, JJ.) (per curiam)

Sunday, January 18, 2015

To enforce an out of state child support judgment, is a formal motion to register it required?

In Texas the father of two children sued to get paid back-child support he claimed from their mother under a modified Louisiana domestic-relations order. He put copies of the orders in his first amended collection motion and simultaneously documented mailing copies of the old orders to mother. He clearly did not follow all the procedures of Texas Family Code section 159.602 to register out-of -state judgments under the Uniform Interstate Child Support Family Support Act.
The trial judge dismissed the case because the father never filed a separate motion to register the orders, and-- therefore-- the trial court lacked subject-matter jurisdiction.
Beaumont Ninth Court of Appeals justice Leann Johnson, wrote for a panel including Justices Charles Kreger and Hollis Horton reversing and remanding the trial court judgment because the father reasonably communicated to the trial court and to the mother that he wanted two orders registered and which they were. The Ninth Court of Appeals followed Kendall v. Kendall, 340 S.W.3d 483, 500-01 (Tex. App.—Houston [1st Dist.] 2011, no pet.) which held that failure to follow all the details of Tex. Fam. Code sec. 159.602 did not deprive the trial court of jurisdiction.
The opinion seems reasonable and will tend to simplify practice without depriving anyone of any material rights. The opinion notes that the father and his counsel were not present at the dispositive trial court hearing, but did not say why. The opinion put shudder quotes around the word proof in discussing the father's proof of mailing of the orders-- I am very curious why, but couldn't figure it out.
In re T.F. and T.F., (No. 09-14-00064-CV, Tex. App.-- Beaumont, Jan. 15, 2015) (mem. op.) (no pet. h.)

Sunday, January 11, 2015

So You Want to Appeal a Texas State Summary Judgment?

A trial is a determining of controverted facts and law. Usually both sides agree on the law, but don't generally agree on the facts. If the facts of a case are agreed, both sides can submit their view of the law to a judge, and the judge can issue a final judgment. (Why can't one of the sides get a jury?  Because a jury's job is to decide fact disputes. No fact disputes? Then no need for (and no right to) a jury.)
Let's say a lawsuit is filed Lawsuit A-- one side says that a factual dispute exists between the parties about one of the elements of a case  and the other side says that any factual disputes are not about any of the elements of the cause of action. That other side asks for the judge to rule that there are no factual disputes about any of the elements of the case, so that no factual determination is required, just a final decision on the law. If the judge grants the motion that there are no factual disputes in the case. The judge will enter a final judgment which one or the other parties may appeal. In Lawsuit B a judge may grant a summary judgment because a defense is proved as a matter of law such that no trial is needed. In Lawsuit C a state summary judgment that can be granted because-- after a reasonable time for discovery a side propounding a cause of a cause of action or a vital defense have not come up with more than a scintilla of evidence in favor of the element or defense..
There need not be oral hearings as to whether or not a summary judgment motion or similar motion should be granted.
As you recall, generally, judgments can not be appealed unless they are final.
Really good trial judges check the pleadings and interlocutory rulings and nonsuits of all parties and make sure not to close a trial file unless every issue for every party has been adjudged or dismissed. Judges often put in a judgment that they intend to be final and appealable "This is a final judgment," and "All relief not granted is denied." This last sentence is especially clever: any element of the litigation or any party in the litigation that might have been forgotten now has an appealable ruling!
You can imagine that frequently, the party that wanted the trial might want to object or a party to a law dispute may want to appeal the trial court's law ruling.
As in any non-interlocutory appeal, if the lower court's judgment is not final, the higher court lacks jurisdiction over the matter. If the higher court finds that it does not have jurisdiction over your matter then you case is on the fast track to Loserville.
Surprisingly, there is a line of authority that says that determining the finality of a judgment should not be a big deal. That, for example, if a lower court judgment is issued under circumstances that would make a reasonable outsider think that the judgment is supposed to be a final judgment-- that is, at the end of super-comprehensive, but not completely comprehensive, bench trial or jury trial, that even though it left out some early parties who dropped out of the case, though technically some of their causes of action were still pending, evidence of finality is close enough for government work. I know that I am not the only appellate lawyer to think that these cases make bad precedent. If it is not as clear as glass whether or not a court has jurisdiction, we lawyers cannot give reliable advice to our clients, and it opens appellate courts to the appearance of requiring absolute finality for disfavored parties and giving a pass to favored ones.
Practice tip one: if a proposed appeal comes to your desk less than 30 days after the judgment, do what the trial judge should have done in the first place: check the pleadings and interlocutory rulings and nonsuits of all parties and check whether every issue for every party has been adjudged or dismissed. If any have been left out, consider a motion for a trial on those issues or a motion to dismiss those issues, or even a motion for summary judgment. Consider this even if the judgment proposed to be appealed is old, even very old. Remember, generally, the appellate deadlines do not begin to run until there is a final judgment, and if a suitable judge or panel rule that the judgment is not final, the clock has not begun to run at all. 
 It is highly unlikely that any harmful error will be found nor any appellate relief granted unless the appellant made it clear in a timely written response to the motion for summary judgment what the error. If the motion for summary judgment is unclear, special exceptions must be filed to the motion. In response to the special exceptions for the motion, the judge may give the summary judgment movant a chance to replead.  Sometimes the movant repleads, and the respondent specially excepts to mistakes that were not fixed. A motion will generally be dismissed only if repeated efforts fail to produce understandable and reasonably complete motion points fail.