February 2009

After reading Combs v. Kaufman County, I can’t help but wonder if there is something missing from the Court’s opinion or if the opinion contains an error.  Nontheless, I was surprised to learn about a rarely-invoked provision of the Texas Constitution that allows parties to a suit to pick their own judge.

Article V, Section 16 of the Texas Constitution  provides that when the judge of a county court is disqualified, "the parties interested may, by consent, appoint a proper person to try said case."  In Combs, the presiding judge of the Kaufman County Constitutional Court apparently disqualified herself from hearing a guardianship for Wallace Darst.  [Note, the opinion uses the term "recused," which has a different legal meaning, but from the facts, it appears the Court meant to use the term "disqualified"].   The parties subsequently asked Judge Glen Ashworth, who was then district judge for the 86th Judicial District Court, to preside over the guardianship.  Here, the opinion is somewhat confusing or inconsistent as to whether Judge Ashworth merely presided as judge for the constitutional county court or whether the case was treated as having been transferred to the 86th District Court, with Judge Ashworth presiding as judge of that court.  Judge Ashworth subsequently awarded the guardian (Combs) a fee of $143,168.95 and that order was not appealed.Continue Reading Subject-matter Jurisdiction and Consent

The Dallas Court of Appeals recently had an opportunity to review and apply the mootness doctrine with respect to appeals and, in the process, expound on the rarely invoked exception to mootness known as "capable of repetition, yet evading review" (CORYER).  In this case, the Plaintiff sought a temporary injunction and declaratory judgment that Duncanville’s ordinance…

There are some interesting developments working their way through the legislature and the Supreme Court Advisory Committee that relate to the conduct of jurors.  Senate Bill 445, sponsored by Senator Wentworth, and proposed Texas Rule of Civil Procedure 265.1 would allow jurors to submit questions to witnesses during trial. 

The proposed Senate Bill would allow jurors to take notes during trial and require the courts to provide materials to jurors on which to take those notes.  In addition, it would require the Texas Supreme Court to adopt a rule that would allow (1) jurors to submit questions for witnesses anonymously; (2) counsel to object to questions out of the presence of the jury; (3) witnesses to be recalled to the stand to answer a question in open court;  (4) an opportunity for cross-examination in response to a juror question; and (5) limitation upon questions "for good cause."  The Senate Bill has had its first reading and is currently pending before the Senate Jurisprudence Committee.

Proposed Rule 265.1 calls for an instruction to be read by the judge to the jurors at the beginning of trial advising of the right to ask questions and a form would be provided to jurors upon which questions could be submitted.  The parties would be allowed to object and the court would have the discretion to reword the question.  Parties would be allowed to ask follow up questions.  Any question submitted would become part of the record.  This proposed rule is on the SCAC’s agenda for discussion at its meeting today, February 20, 2009.Continue Reading Proposals to Allow Jurors to Take Notes and Question Witnesses

A court appointing a receiver has exclusive jurisdiction over property subject to the receivership. When does the court’s exclusive jurisdiction end? The court must either relinquish its jurisdiction or order the receiver to restore the property to those entitled to it.

Proper relinquishment of exclusive jurisdiction was the main issue of a recent San Antonio Court of Appeals case: Chimp Haven, Inc. v. Primarily Primates, Inc. You can read the opinion here.

Continue Reading Court Doesn’t Monkey Around With Exclusive Jurisdiction

 Void orders of a trial court may occur in a number of different circumstances.  The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.

The trial court dismissed the State’s action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified.  More than 30 days after the dismissal, the trial court granted the motion to reinstate.  The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court’s order of reinstatement was void.Continue Reading Challenging Void Orders and Motion to Reinstate