Ripeness, Mootness, and Capability of Repetition Yet Evading Review

Some courts have a duty to decide every case brought before them that properly invoke their subject matter jurisdiction and their territorial jurisdiction. In Texas state courts, these would be municipal courts, small claims court, justice-of-the-peace courts, county courts themselves or, where they are substituted for by county courts-at-law, county-courts-at-law, state district courts, and courts of appeals. In the U.S. federal system, the courts are bankruptcy courts, U.S. district courts and U.S. circuit courts of appeals.
A long-standing principle of Anglo-American or common law is that a court does not give advisory opinions.  A good effect of  such a rule-- likely the original reason for it-- is that deciding a case arising from particular facts is much easier than deciding a case on the basis of  pure abstractions. Compare how much trouble philosophers have with reasoning about questions for which legal reasoning is nowhere near as complicated. A bad effect of this rule is that one often cannot challenge the propriety or constitutionality of a law without violating it, and then urging the impropriety or unconstitutionality as a defense to being punished. That one must risk punishment to challenge a statute, regulation or practice, makes people less inclined to challenge the interpretations of statutes, regulations, or practices of those with power.
This rule appears to have at least two apparent exceptions. The first is the remedy of declaratory judgment. In such a situation, someone asks a court to make a declaration which another party opposes. This form of relief appears to have been urged on legislatures by insurance companies to allow insurers to sue as plaintiffs rather than having to wait for the plaintiff or plaintiffs to sue the companies as defendants. If a declaratory judgment does not decide a live controversy, such as whether an insurer must provide a legal defense for its insured, the suit is not allowed. It can't be used to decide a tax dispute or a criminal law dispute. So this exception to the rule is more apparent than real. The second apparent exception is certified question practice. The Texas constitution provides that the Texas Supreme Court may, but does not have to, answer a question of law put to it by a federal appeals court. In civil disputes in which the amount in controversy is not small that come before a federal court because none of the plaintiffs come from the same state as any of the defendants, the federal court is supposed to use state law rather than federal law to decide the case. So far, so good, but what is a federal court to do when there is no state case showing what state law is?  Generally, the federal court has to make an educated guess as to what the state law would be. Unfortunately, it is possible that the federal court follows one doctrine, and later on, the state courts follow a different one. Certified question practice allows a federal appeals court to ask the Texas Supreme Court what the answer is. The feds can ask, but the Texas Supremes don't have to answer. When they don't answer, SCOTX makes the effort to get the ruling a waste of money and effort. Still, before the state constitutional amendment, SCOTX had ruled that answering a certified question was improper because the answer would be an advisory opinion. Notice, though, that a certified question grows out of a live dispute in the federal court, and the facts in that case can aid the state court by giving facts to the dispute, that an abstract question does not have.
A court can refuse to hear a case when the parties are going to have a have a dispute, but have not had the dispute yet or that important facts about the dispute are not presently known. Such a case is said to be unripe.
A court may also refuse where circumstances have left nothing to be corrected in an old dispute. For example, two parties may dispute ownership of property on the bank of a river, If the river floods, and the disputed land is washed away to the sea, no property ownership question may be left. Such a case is moot.
You might ask, how can the United States Supreme Court decide cases such as abortion cases, since gestation generally takes nine months, but hardly any case can get through trial, court-of-appeals review, and Supreme-Court review in less than nine months? It can because such situations are subject to repetition, but evade review. In the famous or infamous Roe v. Wade case, that the plaintiff had had an abortion in another state as to the abortion she sought in Texas, but was still capable of future pregnancies, that capability for future pregnancies gave her enough of a continuing interest in the matter to keep up her suit.

Texas Indigents Freed from Paying Court Costs in Their Divorces

Poor people should not be oppressed by costs imposed by courts. The federal Justice Department thinks so. As to attorneys' fees for services rendered to paupers, San Antonio's Fourth Court of Appeals agrees. The estimable Jani Maselli Woods believes so. E.g. Peraza v. State, 457 S.W.3d 134, (Tex. App.-- Houston [1st Dist.], Dec. 4, 2014)  reversed at 467 S.W.3d 508, (July 01, 2015).
The Texas Supreme Court joins them as to filing fees for civil suits filed with uncontested pauper's oaths. The case is Campbell v. Wilder, No. 14–0379, 2016 WL 1267876 (Tex., Apr. 1, 2016) (Hecht, C.J.) (slip op.) (Lehrmann, J. not sitting).
Seven people-- Campbell along with six others--  who got divorced for free by filing uncontested affidavits of indigency, also known as pauper's oaths, under Texas Rule of Civil Procedure 145 got cost bills from Tarrant County District Clerk Thomas A. Wilder. Those bills were in amounts around $300 and threatened that if they were not paid, the sheriff would take property in lieu of the money.
The Texas Advocacy Project objected as to some of the plaintiffs. Wilder said he was bound by the decrees saying that each party had to pay their own costs and that the unhappy indigents should return to court and have the cost charges altered.
Plaintiffs sued in Tarrant County's 17th Judicial District Court, which had made none of the divorce decrees for injunctive relief, inter alia.  After a hearing, it found that the
District Clerk:

" . . . has a policy, practice, and procedure that his office will seek to collect costs against

parties who have filed an affidavit on [sic] indigency under Tex. R. Civ. P. 145 where the

affidavit was not contested, where the contest was denied, or where the contest was

withdrawn based on judgments or final orders in which there was no specific finding

expressly stated in the judgment or final order that the indigent party’s action resulted

in a monetary award, and no specific finding expressly stated in the judgment or final

order that there was sufficient monetary award to reimburse costs[.]"

The Second Court of Appeals, the one in Fort Worth, poured the plaintiffs out for lack of jurisdiction in a divided opinion. The Austin Supremes took it up and some prominent appellate lawyers joined the team for the plaintiffs, e.g. former Texas Supreme Court Chief Justice Wallace Jefferson.

The Texas Supremes overruled Evans v. Pringle, 643 S.W.2d 116 (Tex. 1982) (per curiam), holding that the 17th District Court's injunction affecting other trial courts' judgments was allowable.

They also quoted the Tex. R. Civ. P. 145 that the affidavit of indigency was in lieu of costs. That is, once the time for challenging the affidavit of indigency passed-- there were not any costs for that party in the case, and that family courts were freer to assign costs than other civil courts were, made no basis for indigents to incur court costs.

 
Thoughts on this case:

As to indigents lacking liability to pay court fees, this decision appears to comport with the plain language of Rule 145. For a prince of the GOP to ignore the letter of the law to take the property of poor people named Odell, Shaunta, and Tairhonda sickens people with sensitivity, who are also known as swing voters.

Enjoy Spring Break. I will.

I presently do not plan to post anything to the blog until at least the 20th. Am taking a week off.

Results of the Contested Texas Democratic Appeals Court Races

Texas Democrats had three contested appeals courts races.
In the Eighth Court of Appeals (El Paso) Place Three for the unexpired term of Steven Hughes, Gina M. Palafox led the five-way race, with Maria Ramirez-- apparently a El Paso municipal judge-- a close second for the runoff.

Leticia Hinojosa decisively beat Carlos Valdez for Greg Perkes's seat on the Thirteenth Court of Appeals in Corpus Christi and Edinburg. Houston's 14th Court of Appeals Place incumbent Jim Sharp was ousted by Candance White as the Democratic candidate for Place Two who will face Republican Kevin Jewell.

Texas Appellate Court Republican Primary Election Results

Here are the Texas appellate court Republican primary results.
Incumbent Texas Supreme Court Justice Debra Lehrmann overcame a challenge from her right by Michael Massengale.
Paul Green, another Texas Supreme Court justice, pushed away a challenge from near-eponymous Rick Green.
A third Texas Supreme Court incumbent-- Eva Guzman-- overcame repeat candidate Joe Pool.
In the Texas Court of Criminal Appeals Place Two race, Mary Lou Keel led Ray Wheless by a thin margin, putting them into a runoff squeezing out Wheless's fellow Collin County district judge Mr. Chris Oldner.
I don't think I was alone among analysts of the Texas Court of Criminal Appeals Place Five to be surprised to see Scott Walker, whose campaign might be charitably described a dyspeptic, as the number-one vote-getter in the race. He was followed at some distance by Brent Webster. Grits for Breakfast called it, I think, when it explained that voters mistook candidate Walker for the Wisconsin governor.
Judge Paul Keasler easily overcame the challenge of Paul Davis to be renominated for Texas Court of Criminal Appeals Position Six.
The saddest sack of all the candidates, the winner of the Tear in My Beer award, is William Anthony "Andy" Porter, third place in the Second Court of Appeals Place Three contest. He was 29 votes (Only 29 votes!) behind Dabney Bassel in this Fort Worth court contest. Bassel is in the runoff with forensic lexicographer and former Texas women's chess champion Elizabeth Kerr.
In Dallas's Fifth Court of Appeals, Place Three incumbent David John Schenck decisively beat
David James Henschen.
For the Fourteenth Court of Appeals in Houston, Place Two, Kevin Jewell defeated

Bud Wiesedeppe. To come-- Democrats and at least one Libertarian . . .

Beaumont Keeps Past and Present Relief from Being Granted to "Failure to Complete Sex Offender Treatment" Convicts by Legislature.

VanDyke v. State, ___ S.W.3d ___, No. 09-14-00137-CR (Tex. App.-- Beaumont, Feb. 10, 2016, no pet. h.)

Know Nothing About Texas's Sexually Violent Predator Law? This Paragraph's for You.

Seventeen years ago, Texas created a sexually-violent-predator law. Texas prisoners about to be released who had had two sex offenses and who had a behavioral abnormality which made them likely to reoffend could be brought to a jury trial, and if those facts were established. those people were made subject to supervision by a state agency, which created and enforced a plethora of rules (Communicating with any person without the permission of the agency was a violation-- viz. during a phone call home to the family, saying "hello" to a family member who was a minor was a violation. If the power went out on the 35-year-old portable tracking transmitters-- the volume of a medium-to-large reference book--  issued to the offender, that was held to be a violation. If one did not follow the rules, they could be convicted of a third degree felony. Practically everyone in the program had two prior felonies, so that these violation sentences could result in prison terms of 40 years or life.
This program (first called Council on Sex Offender Treatment (CSOT), then Office of Violent Sex Offender Management (OVSOM), now Texas Civil Commitment Office (TCCO)) and the court and the judge in charge of these matters have had more problems over the last three years than can fit in a blog post.

Texas Improved the  SVP Law.

Roger Dale VanDyke was convicted of violating civil commitment by failing to complete sex offender treatment and was sentences to 25 years in prison. While the case was on appeal, Texas amended Tex. Health & Safety Code Ann. sec. 841.085 to prohibit prosecution for failing to complete sex offender treatment. The legislature said that this change covered all failures to complete sex offender treatment past, present, or future, except that a final conviction existing on the effective date of the change would remain unaffected.

Well, VanDyke's case was on appeal on the effective date of the change of law, so he asks, is not my conviction overturned? Chief Justice Steve McKeithen, writing for a panel including Justices Hollis Horton and Leanne Johnson, holds that to the extent that the statute change relieves sentenced convicts, the legislature is violating the separation of powers by taking over an executive function-- the granting of clemency to convicts, so that that part of the law is unconstitutional, and no existing sentences, either final or subject to appeal cannot be can be overturned or reduced by the legislature, but only by executive action, viz. the Texas Board of Pardons and Paroles. In a count of the first 13 years of Perry's governorship, one out of 33 requests for clemency, including pardons, was granted, so good luck with that.

State Due Process and Due Course of Law Gives Rights in Addition to the Rights in the Tax Code

Charles Kirkwood v. Jefferson County and W. Properties, LLC, No. 09-15-00296-CV, 2016 WL 536852  Feb. 11, 2016 (Tex. App.-- Beaumont) (no pet. h.) (mem. op.) (not designated for publication).
Justice Charles Kreger wrote this opinion for a panel including Chief Justice Steve McKeithen and the hardly ever sleeping daughter of the Diamond State Justice Leanne Johnson.
In June 2010 Jefferson County wins a judgment for unpaid property taxes against Sara Gleason. There's no appellate record as to whether or not the County abstracted the judgment. In August, Gleason sells her property to Charles Kirkwood, who accepts responsibility for the all the delinquent taxes.
W. Properties, LLC buys the property at the March 2013 tax sale. August 2013  W. gave Kirkwood notice to vacate the premises. Kirkwood then filed for bill of a review complaining that he didn't get notice of the sale. April 2014, the trial court pours Kirkwood out. January 2015 Kirkwood moves for new trial-- trial court grants one. County moves to dismiss for lack of standing and jurisdiction-- trial grants both. Kirkwood appeals the dismissal. The Ninth reverses and remands.
The County said it gave all necessary notice-- paper to Gleason, on the courthouse door, on the County’s website, and the occupant of the property. It also said it didn't need to give anybody any stinking notice. That might be true, if all the issues in this case were controlled by the tax code. Kirkwood argues, that he has additional state constitutional rights. Kirkwood says the County knew he owned the property, and took payments from Kirkwood against Gleason's judgment.
A judgment that hurts a party's property interest in which the party doesn't get get notice. should be set aside.
The appellate record lacked evidence that Kirkwood was given nor got notice of the sale, nor does it show that the lack of notice was Kirkwood’s fault. An attorney’s arguments nor the pleadings or motions of a party-- none of them are evidence. Kirkwood had standing.
The county claimed he County’s motion to dismiss for lack of jurisdiction. In its motion, the County claimed sovereign immunity, but, a party may sue the state for equitable relief arising out of the state’s violation of constitutional rights. Kirkwood had jurisdiction.