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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, August 28, 2011

Jurisdiction Law Trumps Tex. R. Jud. Admin. 11

          An injured minor sues a tire company and an automaker. In 2001, a pretrial judge is assigned under Tex. R. Jud. Admin. 11. In 2003, the tire company settles; the regular judge approves. In 2010, the automaker wants to settle. The pretrial judge adjusts the earlier settlement by $227,403.25 and eventually orders the automaker to interplead the money.
1.    Plaintiffs’ counsel objects that the pretrial judge abused his discretion.
2.    The automaker objects to the appointment of the ad litem.
3.    The automaker objects to getting stuck with all the ad litem’s fee.
4.    The automaker objects that the ad litem charged it for services not necessarily related to its task.
Under limited circumstances, a court may revisit an approved minor settlement. Those circumstances don’t apply here. Pleadings did not support a revisiting of the settlement. Ad litem argued that tire settlement should have been before the pretrial judge instead of the regular judge. The tire company and the automaker said that the tire settlement was neither a pretrial proceeding or pretrial motion under Tex. R. Jud. Admin. 11.3.
The regular judge had subject matter jurisdiction—modern courts tend not to allow subject matter jurisdiction attacks where they can be avoided. District court is default Texas court. Minor’s next friend gave regular judge personal jurisdiction over minor. Minor’s attorney’s did not breach fiduciary duty to minor.
Ad litem must be appointed where conflict of interest exists between minor defendant and next friend. Settlement would extinguish medical lien, for which next friend—minor’s mother—would otherwise be liable. So there is a conflict of interest and appointing ad litem is OK.
What the ad litem did related to the interest of the minor, including defending the presence of an ad litem.
In the context of settlement, the minor was a prevailing party, so that charging the automaker with the ad litem fees was OK.
The dissent argues that the only judge with the power to decide this matter was the pretrial judge—settlement is pretrial. The pretrial judge should have passed on the tire settlement. Also, the attorneys for the minor “lost,” too; so they should have borne part of the ad litem fee.

File Your Petitions for Discretionary Review with Texas Court of Criminal Appeals

This new rule goes into effect-- along with many other rules and statutes-- September 1, 2011. File your Petitions for Discretionary Review with the Court of Criminal Appeals instead of with the Appeals Court. Adversaries have 15 days to file a response.

They Get to Pick What They Are Going to Hear.

Some courts can pick and choose the cases they are going to hear, at least to some extent. Others cannot. Of the on's that can, the first task of advocacy as to such a court is to convince it to hear the case in the first place. A  common rookie mistake for appellate lawyers is to try to sell the court on the basis of the enormity of the injustice below. One practically always does much better to show that the courts below are following different, inconsistent rules as to those kinds of cases, or, if that is not possible, to show that the court below did not follow the precedent of the court one is trying to get into.
What kinds of courts can pick and choose their cases? Well, except for certain types of cases mandated by the U.S. Constitution, the Supreme Court of the United States chooses which cases to hear by a vote of their members. A case that four or more of the justices want to hear gets heard. A case that less than four of them want to hear does not get heard. The Supreme Court of Texas reviews cases that four of the justices want to look at. The Texas Court of Criminal Appeals has to hear all appeals of all death cases, but otherwise, four votes or more get a case heard. Federal trial courts don't have to hear certain types of cases-- family law, for example, but the federal courts of appeals pretty much have to hear every case the federal trial courts and the agencies send up to them.
Courts that get to choose what they hear are generally more interested in standardizing the precedent used by the courts below them, than they are in correcting gross miscarriages of justice. Such courts often have judges or court below them that they are inclined to correct. SCOTUS is inclined to correct San Francisco's Ninth Circuit. SCOTX, the Thirteenth Supreme Judicial District of Corpus Christi and Edinburg. Texas's Court of Criminal Appeals, judges who hold pretrial hearings on the constitutionality of the death penalty.
Such courts are unlikely to take a case the first time an issue arises; they want to have the lower courts wrestle with it. If the lower courts agree on how to handle a matter, they've just saved the higher court pointless work. A selective higher court would generally prefer to take a case that they have the votes to overrule; that way, they don't just parrot the lower court. Realize that a higher court judge who disagrees with a lower court decision may not have the votes on his or her court to overturn it. Such a judge may not vote to hear such cases, preferring bad lower court decisions to bad higher court precedent.

Monday, August 15, 2011

Everything You Know about Light v. Centel Cellular of Texas Is Wrong

Audio comedians the Firesign Theatre had an album called  "Everything You Know Is Wrong!" Well, Proctor and Bergman had nothing on those jolly jumpbucks at the Texas Supreme Court. A guy named Rex Cook was working for the famous insurance agency Marsh and McLennan Companies. They gave him stock options and had him sign a noncompete agreement. He thought he knew, though, that a company can't just buy a noncompete agreement from a person. Cook quit and, well, proceeded to compete with Marsh and McLennan. They sued him. The judge of the 68th District Court in Dallas, Martin Hoffman, thought that he knew that in such a case, the employee wins. After all, you just couldn't buy a noncompete agreement from a person. The Dallas Appeals Court-- that bastion of antibusiness sentiment-- thought that it knew that in such a case the employee wins. At the Texas Supreme Court, the Chief Justice and Justices Green and Lehrmann thought that they knew that in such a case the employee wins. Even though it's not quite so clear for Justice Willett, a reader of his opinion might be forgiven for thinking that his understanding of the rules is generally the same as every other jurist who has passed on the case (He said that the trial record wasn't developed, which is why he would send the case back to the trial court.).That leaves Justices Wainwright, Hecht, Medina, Johnson and Guzman who teach all the others that everything they know is wrong. OK. maybe not everything, just Light v. Centel Cellular Co. of Texas, 883 S.W.2d 643 (Tex. 1994). It holds that for a covenant not to compete to be enforceable when a company offers an incentive and the employee accepts it, the incentive would have to give rise to the employer's interest in restraining the employee from competing. For example, a covenant not to compete might be enforceable when an employer gives an employee trade secrets or confidential information. That which is given "gives rise" to the justification for allowing enforcement of a covenant not to compete. Forget it. It's old news. That statement is inoperative. With five votes, you can do anything around there. I think we're all bozos on this bus.

Words to the Wise, Particularly if You're Briefing the Texas Supreme Court

Martha Lackritz is a law clerk to Chief Justice Wallace B. Jefferson of the Texas Supreme Court in Austin. She graduated from the University of California Berkeley School of Law and is a member of the State Bar of Texas and the State Bar of California. She wrote an excellent short article: "Common Blunders in Texas Supreme Court Briefs." Sstatements of facts in Supreme Court briefs are, she suggests, commonly too wordy, or are, alternatively, too terse. She complains that there are not enough citations in many briefs. She says that she sees the intermediate Texas courts of appeals overcited. Such cases do not bind the Supremes and can easily be overruled by them. She hears too much hyperbole in briefs.  Improper punctuation and typographic errors often arise. Briefs fail to counter arguments that the briefs are supposed to be  responding to. Lastly, she reports that record citations are not used enough.

Monday, August 8, 2011

What Is the Filing Deadline for a Texas Civil Appeal?

When can you file a notice of appeal? Let’s start with the appeal of a civil jury trial. You would have 30 days from the date a trial court judgment was signed if you did not file a motion for new trial, 90 days if you did. What if the trial was a civil bench trial? Then, requesting findings of fact and conclusions of law or a moving the court for a new trial extends the deadline for filing a notice of appeal from 30 to 90 days (You would have 20 days from the signing of the judgment in the bench trial to make your first requests for findings of fact and conclusions of law.).
It would be foolish to do a civil appeal without consulting O’Connor’s Texas Civil Appeals, written this year by Alessandra Ziek Beavers, published by Jones McClure Publishing of Houston. As a practical matter, it is malpractice not to use the timetables in the back. It‘s got a practice guide. It is an annotated set of the Texas Rules of Appellate Procedure with forms. It’s got the local rules of the appellate courts. Don’t start writing an appeal without it.

Sunday, August 7, 2011

A Texas Trial Judge Cannot Rule Pretrial that Appellate Delay Makes Seeking the Death Penalty Unfair.

Texas's Court of Criminal Appeals has overruled a trial judge who stated that a capital defendant on retrial could not receive due process after being in the appellate system for approximately 30 years. Judge Cathy Cochran wrote the opinion for the majority which, along with her consisted of Presiding Judge Sharon Keller and Judges Paul Womack, Cheryl Johnson, and Elsa Alcala. Judge Michael E. Keasler wrote a concurring opinion in which he was joined by Judges Laurence E. Meyers and Barbara Parker Hervey. Judge Tom Price dissented.
Longtime Dallas judge John Creuzot made a pretrial ruling that the State of Texas, represented by the District Attorney Craig Watkins's office, could not seek the death penalty against defendant Jonathan Bruce Reed in his current retrial because the passage of approximately 30 years had rendered some of his punishment mitigation evidence unavailable. The State filed writs of mandamus and prohibition to undo Cruezot's actions. The Court of Criminal Appeals majority held that the State had no remedy at law and that the trial judge had a ministerial duty to not make such a ruling for the following reasons:
  • There is no authority that Judge Creuzot has the power to make such a ruling pretrial;
  • The United States Supreme Court has not recognized a claim like Reed's;
  • The thirty years' delay worked in Reed's advantage-- when he was first tried SCOTUS had not changed the law so as to provide a legal basis for his claims;
  • Although he may have lost mitigation evidence from his youth, the evidence of his behavior during his 30 years of incarceration will be fresh, better evidence than he would have had before;
  • The harm of the delay challenges the State-- it has the burden of proof;
  • Reed's complaint about the evidence is not yet ripe-- he might be acquitted; his mitigation evidence might be sufficient to save his life-- all his injury is hypothetical;
  • SCOTUS says that problems from delay must be shown at a trial;
  • The delay is not the State's fault-- it should not be punished for a delay it had no hand in.
Judge Keasler's opinion would be narrower. It would reach the same conclusion as the majority, but based only on the majority's last reason-- the State shouldn't be prejudiced for something that is not it's fault.
Judge Price did not think that it was categorically impossible that a prejudicial degradation of evidence caused by delay could not be determined pretrial. Therefore,the trial court does not have a ministerial duty to rescind its order-- that is, the State does not have a clear right to the relief it seeks.

Monday, August 1, 2011

What Is the Maximum Term for Which a Defendant Is to Be Tried?

Randle P. McMurphy, the protagonist of One Flew Over the Cuckoo's Nest, is shocked to learn that instead of his term in the mental hospital's being limited to the term he would have served in prison, he was permanently committed.
In Texas, a defendant who is found incompetent to stand trial cannot be committed by the State to a mental hospital or other inpatient or residential facility for a period that exceeds the maximum term provided by law for the offense for which the defendant was to be tried. Reinke was indicted for attempted murder, a second-degree felony for which the ordinary punishment was two to twenty years. However, he had two prior convictions which enhanced his possible sentence to five to ninety-nine years or life. The question is: how long may he be held pursuant to the statute? Twenty years or ninety-nine years or life?
Justice Jeff Rose, writing for a panel that also included Bob Pemberton and David Puryear, answered that Reinke could only be held on the basis of his incompetency finding for twenty years. The "offense for which the defendant was to be tried" was attempted murder. The enhancements only increased the punishment; it did not increase the maximum term of the crime (Such a defendant could be subject to civil commitment notwithstanding the statute.). Hat tip to the ever-helpful TDCAA for bringing up this case.