All American Rejects Lyrics – Gives You Hell Song Words
Song Words by Artist / Band : All American Rejects (AAR)
Lyrics Title : Gives You Hell
Available on Album : When the World Comes Down
Released : 21 September 2008
Music Genre : Alternative Rock
(Song Data Information from : Wikipedia)
I wake up every evening
With a big smile on my face
And it never feels out of place.
And you’re still probably working
At 9 to 5 pace
I wonder how bad that taste
When you see my face
I hope it gives you hell, I hope it gives you hell
When you walk my way
I hope it gives you hell, I hope it gives you hell
Now where’s your picket fence love
And where’s that shiny car
Did it ever get you far?
You never seemed so tense, love
Never seen you fall so hard
Do you know where you are?
Truth be told I miss you (I miss you)
Truth be told I’m lying
When you see my face
I hope it gives you hell, I hope it gives you hell
When you walk my way
I hope it gives you hell, I hope it gives you hell
If you find a man that’s worth the damn and treats you well
Then she’s a fool you’re just as well hope it gives you hell
Hope it gives you hell
Tomorrow you’ll be thinking to yourself
Where did it all go wrong?
But the list goes on and on
Truth be told I miss you (I miss you)
Truth be told I’m lying
When you see my face
I hope it gives you hell, I hope it gives you hell
When you walk my way
I hope it gives you hell, I hope it gives you hell
If you find a man that’s worth the damn and treats you well
Then he’s a fool you’re just as well hope it gives you hell
All American Rejects (AAR) lyrics on www.lyrics-celebrities.anekatips.com
Now you’ll never see
What you’ve done to me
You can take back your memories
They’re no good to me
And here’s all your lies
If you look me in the eyes
With the sad .. sad look
That you wear so well
When you see my face
I hope it gives you hell, I hope it gives you hell
When you walk my way
I hope it gives you hell, I hope it gives you hell
If you find a man that’s worth the damn and treats you well
Then he’s a fool you’re just as well hope it gives you hell
When you see my face
I hope it gives you hell, I hope it gives you hell (hope it gives you hell)
When you walk my way
I hope it gives you hell, I hope it gives you hell (hope it gives you hell)
When you hear this song and you sing along well you’ll never tell (you’ll never tell)
And you’re the fool I’ve just as well I hope it gives you hell (hope it gives you hell)
When you hear this song I hope that it will give you hell (hope it gives you hell)
You can sing along I hope it puts you through hell
All-American Rejects – Gives You Hell Release History
21 September 2008 : Single release on their official website.
30 September 2008 : Released on iTunes
07 October 2008 : Introduced to mainstream radio
19 October 2008 : A video shoot
03 November 2008 : music video for Gives You Hell was released via Yahoo! Music and available for purchase in iTunes
Sing their song, play their music, and don't forget to buy their single / album!!
Showing posts with label Defamation is true if it is a lie. Show all posts
Showing posts with label Defamation is true if it is a lie. Show all posts
Thursday, July 16, 2009
Saturday, June 20, 2009
Taxpayers pay for the worthless loser who will not even come to the phone........waste of your taxe
loser had to cheat to win the election! cheater!
Saturday, May 03, 2008
exas of their ability to earn a living practicing before our courts." So you pulled the red card.....Nazis built a wall also, build it .........
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0351-05
THE STATE OF TEXAS
v.
JAMES VASILAS, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
Meyers, J., delivered the opinion of the unanimous Court.
O P I N I O N
We granted the State's petition for discretionary review to decide whether a petition for expunction qualifies as a "governmental record" under section 37.01 of the Texas Penal Code. One definition of a governmental record is "anything belonging to, received by, or kept by government for information, including a court record." Tex. Penal Code Ann. § 37.01(2)(A) (Vernon Supp. 2004-2005). The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann. § 37.01(1) (Vernon Supp. 2004-2005). We will resolve whether pleadings filed with but not issued by a court fall within the definition of a governmental record pursuant to § 37.01(2)(A).
Facts
Appellee, James Vasilas, is an attorney whose client was charged with the state jail felony of delivery of marijuana. Appellee's client was convicted of the lesser-included offense of possession of marijuana. Thereafter, Appellee signed and filed a petition of expunction of the records relating to his client's arrest on the delivery charge. The State then charged Appellee in a four-count indictment of tampering with a governmental record pursuant to Tex. Penal Code § 37.10, alleging that he made three false entries in the petition for expunction. Appellee filed a nonsuit of the expunction lawsuit.
Subsequently, Appellee filed a motion to quash the indictment on two grounds. First, he asserted that § 37.10 of the Texas Penal Code and Texas Rule of Civil Procedure 13 (1) were in pari materia, with Rule 13 controlling over § 37.10. Second, he claimed that pleadings in civil suits were not governmental records under the definition of § 37.01(2)(A). After hearing oral argument, the trial court granted the motion to quash without filing findings of fact or conclusions of law. The State timely filed its notice of appeal.
Because the State did not appeal the trial court's granting of the motion to quash the first three counts of the indictment, the sole issue before the court of appeals was whether the trial court erred in granting the motion to quash Count IV, which alleged that Appellee did "with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Expunction of Records, with knowledge of its falsity." (2) The court of appeals affirmed the trial court, holding that "the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code." State v. Vasilas, 153 S.W.3d 725, at *5 (Tex. App.-Dallas 2005, pet. granted). The court of appeals reasoned that by including a court record in the definition of a governmental record, the legislature meant to exclude every type of court document that was not a court record. Since the definition of a court record under the Texas Penal Code is a document issued by a court, the court of appeals concluded that a pleading, such as a petition for expunction, which is created by a party or attorney and merely filed with a court, cannot be a governmental record. Having resolved this issue against the State, the court of appeals did not address whether Tex. Penal Code § 37.10 and Rule 13 were in pari materia.
Issue Presented
The State argues that "under the plain language of the statutory definition of 'governmental record,' which encompasses anything received by a court for information, a petition for expunction can be a governmental record even though it is filed with, not issued by, a court." The State asserts that the court of appeals' interpretation of the definition of a governmental record violates section 311.005(13) of the Texas Government Code, commonly referred to as the Code Construction Act, which defines "including" as a term of enlargement and not of limitation. Furthermore, the State submits that the court of appeals should not have looked beyond the plain language of the statute to its legislative history in discerning the meaning of a governmental record, and that it erred by misinterpreting the legislature's intent in amending the definition of governmental record in 1997 to include a court record. (3) While Appellee concedes that the word "including" is not itself a term of limitation, he argues that a petition for expunction does not qualify as a governmental record because: 1) the words "for information" in § 37.01(2)(A) exclude documents that seek to destroy information; 2) the legislature did not explicitly include pleadings within the definition of a governmental record; and 3) the petition for expunction was not a governmental record when the false entries were made. Although Appellee also advances the argument that § 37.10 and Rule 13 of the Texas Rules of Civil Procedure are in pari materia, the court of appeals did not reach this issue, and it is not the issue for which we granted review. We will reverse the court of appeals' decision.
Analysis
The resolution of this case depends on the meaning of the word "including" in the definition of "governmental record" in § 37.01(2)(A). The construction to be given a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In our leading statutory interpretation case, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), we explained that courts must begin with the plain language of a statute in order to discern its meaning. This is because the court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Id. at 785 (citing Camacho v. State, 765 S.W.2d 431 (Tex. Crim. App. 1989)). In Boykin, we established that if the literal text of the statute was clear and unambiguous, we would ordinarily give effect to that plain meaning. 818 S.W.2d at 785 (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). However, we also held:
If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.
Id. at 785-86. The seminal rule of statutory construction is to presume that the legislature meant what it said. Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005). In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.")).
The legislature has provided the Code Construction Act to assist in statutory interpretation. It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't. Code Ann. § 311.011(b) (Vernon 2005). In § 311.005(13) of the Code Construction Act, the legislature expressly stated its intent regarding its use of the word "including" in statutory provisions, providing: "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." Tex. Gov't. Code Ann. § 311.005(13) (Vernon 2005). This Court relied on § 311.005(13) in interpreting the statutory meaning of "including" in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (plurality opinion), superseded by statute, Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994). Pursuant to § 311.005(13), we established that the list following "including" in Article 37.07(3)(a) of the Texas Code of Criminal Procedure (4) was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"). (5)
The lower courts have also interpreted the legislature's use of the word "including" as a means of illustration and not exclusion. For instance, in Leach v. State, the court of appeals applied § 311.005(13) to the defendant's community supervision condition, which tracked statutory language in the Texas Code of Criminal Procedure, and held that the word "including" did not "creat[e] a presumption against further inclusion of terms not expressly stated." 170 S.W.3d 669, 673 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that because "including" was a term of enlargement, the defendant had violated his community supervision by going within 1000 feet of a grassy area where children played, even though this location was not specified in the list of prohibited premises). Similarly, in Wilburn v. State, the court of appeals relied on § 311.005(13) to reject the appellant's argument that, by specifically including franchise taxes in the Franchise Tax Act, the legislature had intended to exclude directors' and officers' liability for all other taxes. 824 S.W.2d 755 (Tex. App.-Austin 1992, no pet.). In H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., this same court of appeals reasoned that the Railroad Commission of Texas's use of the word "including" in a notice provision did not create an exclusive list of interests entitled to notice. 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied). In fact, citing § 311.005(13), the court of appeals stated that "the Commission's use of the word 'include' in the provision signified that the list is not exclusive." Id. at 603 (emphasis added).
Both this Court and the lower courts of appeals have construed "including" as a term of enlargement in accordance with the legislature's intention. By employing the word "including" to illustrate an example of a governmental record, the legislature did not by its plain language intend to exclude documents that were filed with the court from the definition of § 37.01(2)(A). In spite of the fact that the word "including" is unambiguous and the legislature has assigned it a particular meaning of enlargement, Appellee argues that the definition of a governmental record still excludes the petition for expunction at issue.
First, Appellee claims that the legislature would have included pleadings in the express language of § 37.01(2)(A), if it had intended them to be governmental records. We have already explained that the legislature's decision to name a court record as an example of a governmental record does not narrow what qualifies as a governmental record. Furthermore, we agree with the State that "it is difficult to see how the legislature would have to make any additions to the definition of governmental record for the current word 'anything' to include a pleading." (6) Second, Appellee contends that the phrase "for information" in the definition of governmental record operates to exclude the petition for expunction because it seeks to destroy other governmental records. Just because the filing of a petition for expunction may result in the destruction of certain records does not take away from the fact that the petition gives the government information about which records the petitioner wants to expunge. Third, Appellee contends that the petition for expunction is not a governmental record because it had not been received by the government when the false entries were made. See Pokladnik v. State, 876 S.W.2d 525 (Tex. App.-Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Appellee's argument is misplaced because he relies on cases in which defendants were charged under § 37.10(a)(1), which requires knowingly making a false entry in, or false alteration of, a governmental record, and not under § 37.10(a)(5), which requires making, presenting, or using a governmental record with knowledge of its falsity. Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records. See Morales v. State, 11 S.W.3d 460 (Tex. App.-El Paso 2000, pet. ref'd) (holding that even if a petition containing signatures for placement on the ballot was not a governmental record when it was falsified, it became a governmental record after it was accepted by the party chairperson and the candidate relied on it to maintain his position on the ballot). We conclude that the legislature's definition of a governmental record is clear and unambiguous and may include a court record, such as the petition for expunction at issue.
Having established that the clear and unambiguous language of § 37.01(2)(A) does not exclude pleadings, such as a petition for expunction, from the definition of a governmental record, it is necessary to determine whether bringing the petition for expunction within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." Getts, 155 S.W.3d at 155 (citing Boykin, 818 S.W.2d at 785-86). Relying on § 311.021(5) of the Code Construction Act for the proposition that in enacting a statute, there is a presumption that public interest is favored over any private interest, Appellee describes the allegedly falsified petition for expunction as a mistaken pleading, the prosecution of which "would have a chilling effect upon our system of jurisprudence." He characterizes the result of including pleadings in the definition of a governmental record as: "the State's orwellian [sic] persecution of lawyers by attempting to deprive counselors licensed by the Supreme Court of Texas of their ability to earn a living practicing before our courts." Clearly, Appellee misses the point of § 37.10, which does not effectively disbar attorneys, but makes them criminally liable if they tamper with a governmental record. While § 37.10(a)(5) makes it an offense to make, present, or use a governmental record with knowledge of its falsity, § 37.10(a)(3) makes it an offense to intentionally destroy, conceal, remove, or impair a governmental record, which is effectively what the falsified petition for expunction was attempting to do. There is nothing absurd about the legislature seeking to prohibit these acts with respect to a petition for expunction or other pleadings, and these prohibitions do not preclude effective lawyering, as Appellee suggests, by forbidding attorneys from entering alternative pleadings. Tampering with a governmental record pursuant to the definitions of §§ 37.10(a)(3) and 37.10(a)(5) is very different from advocating a client's interests by advancing different legal theories which have bases in the facts and the law.
Furthermore, we have not often considered the issue of what constitutes a governmental record, but our caselaw indicates that there is nothing unique about a petition for expunction such that the legislature would seek to treat it differently from all the other records that would fall within its scope. For instance, applications for government benefits, such as the one in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999), clearly qualify as governmental records. It is not at all absurd for the legislature to include pleadings within the meaning of a governmental record pursuant to § 37.10(a)(5). The legislature obviously meant to protect the people of the State by making it a crime to tamper with governmental records. By enacting § 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.
Conclusion
Because the legislature's definition of a governmental record is clear and unambiguous, and including pleadings in this definition does not lead to an absurd result, it is unnecessary to examine the legislature's intent in amending the definition of a governmental record in 1997. The court of appeals erred in undertaking such an analysis. We reverse the decision of the court of appeals and remand the case for consideration of the second ground for review.
Meyers, J.
Delivered: March 22, 2006
Publish
1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."
2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. § 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to § 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. § 37.10(c)(1) (Vernon Supp. 2004-2005).
3. In 1997, the legislature amended § 37.01 by adding the phrase "including a court record" to the definition of "governmental record" in what had previously been § 37.01(1)(A). The legislature moved the definition of governmental record from subsection (1) to subsection (2) and added a definition of a "court record" in § 37.01(1). See Tex. Penal Code Ann. § 37.01 (Vernon Supp. 1998).
4. At the time we decided
Grunsfield, Article 37.07(3)(a) provided that "regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1991) (emphasis added). Subsequent to our decision in Grunsfeld, the legislature amended the language of § 37.07(3)(a) to clarify that evidence of unadjudicated extraneous offenses and prior bad acts were admissible at punishment. See Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994); Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (plurality opinion) (McCormick, P.J., concurring).
5. Although we decided
Beasley in 1995, we relied on the earlier version of Article 37.07(3)(a), which we interpreted in Grunsfeld and which was in effect when the appellant had committed his offense.
6. The State first advanced this argument in its brief to the Fifth Court of Appeals.
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0351-05
THE STATE OF TEXAS
v.
JAMES VASILAS, Appellee
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
Meyers, J., delivered the opinion of the unanimous Court.
O P I N I O N
We granted the State's petition for discretionary review to decide whether a petition for expunction qualifies as a "governmental record" under section 37.01 of the Texas Penal Code. One definition of a governmental record is "anything belonging to, received by, or kept by government for information, including a court record." Tex. Penal Code Ann. § 37.01(2)(A) (Vernon Supp. 2004-2005). The definition of a court record is "a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court." Tex. Penal Code Ann. § 37.01(1) (Vernon Supp. 2004-2005). We will resolve whether pleadings filed with but not issued by a court fall within the definition of a governmental record pursuant to § 37.01(2)(A).
Facts
Appellee, James Vasilas, is an attorney whose client was charged with the state jail felony of delivery of marijuana. Appellee's client was convicted of the lesser-included offense of possession of marijuana. Thereafter, Appellee signed and filed a petition of expunction of the records relating to his client's arrest on the delivery charge. The State then charged Appellee in a four-count indictment of tampering with a governmental record pursuant to Tex. Penal Code § 37.10, alleging that he made three false entries in the petition for expunction. Appellee filed a nonsuit of the expunction lawsuit.
Subsequently, Appellee filed a motion to quash the indictment on two grounds. First, he asserted that § 37.10 of the Texas Penal Code and Texas Rule of Civil Procedure 13 (1) were in pari materia, with Rule 13 controlling over § 37.10. Second, he claimed that pleadings in civil suits were not governmental records under the definition of § 37.01(2)(A). After hearing oral argument, the trial court granted the motion to quash without filing findings of fact or conclusions of law. The State timely filed its notice of appeal.
Because the State did not appeal the trial court's granting of the motion to quash the first three counts of the indictment, the sole issue before the court of appeals was whether the trial court erred in granting the motion to quash Count IV, which alleged that Appellee did "with intent to defraud and harm another, namely, the State of Texas, make, present, and use a governmental record, to wit: a Petition for Expunction of Records, with knowledge of its falsity." (2) The court of appeals affirmed the trial court, holding that "the petition for expunction filed by appellee was not a governmental record within the meaning of chapter 37 of the penal code." State v. Vasilas, 153 S.W.3d 725, at *5 (Tex. App.-Dallas 2005, pet. granted). The court of appeals reasoned that by including a court record in the definition of a governmental record, the legislature meant to exclude every type of court document that was not a court record. Since the definition of a court record under the Texas Penal Code is a document issued by a court, the court of appeals concluded that a pleading, such as a petition for expunction, which is created by a party or attorney and merely filed with a court, cannot be a governmental record. Having resolved this issue against the State, the court of appeals did not address whether Tex. Penal Code § 37.10 and Rule 13 were in pari materia.
Issue Presented
The State argues that "under the plain language of the statutory definition of 'governmental record,' which encompasses anything received by a court for information, a petition for expunction can be a governmental record even though it is filed with, not issued by, a court." The State asserts that the court of appeals' interpretation of the definition of a governmental record violates section 311.005(13) of the Texas Government Code, commonly referred to as the Code Construction Act, which defines "including" as a term of enlargement and not of limitation. Furthermore, the State submits that the court of appeals should not have looked beyond the plain language of the statute to its legislative history in discerning the meaning of a governmental record, and that it erred by misinterpreting the legislature's intent in amending the definition of governmental record in 1997 to include a court record. (3) While Appellee concedes that the word "including" is not itself a term of limitation, he argues that a petition for expunction does not qualify as a governmental record because: 1) the words "for information" in § 37.01(2)(A) exclude documents that seek to destroy information; 2) the legislature did not explicitly include pleadings within the definition of a governmental record; and 3) the petition for expunction was not a governmental record when the false entries were made. Although Appellee also advances the argument that § 37.10 and Rule 13 of the Texas Rules of Civil Procedure are in pari materia, the court of appeals did not reach this issue, and it is not the issue for which we granted review. We will reverse the court of appeals' decision.
Analysis
The resolution of this case depends on the meaning of the word "including" in the definition of "governmental record" in § 37.01(2)(A). The construction to be given a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). In our leading statutory interpretation case, Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991), we explained that courts must begin with the plain language of a statute in order to discern its meaning. This is because the court's interpretation of statutes must "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Id. at 785 (citing Camacho v. State, 765 S.W.2d 431 (Tex. Crim. App. 1989)). In Boykin, we established that if the literal text of the statute was clear and unambiguous, we would ordinarily give effect to that plain meaning. 818 S.W.2d at 785 (citing Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990)). However, we also held:
If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.
Id. at 785-86. The seminal rule of statutory construction is to presume that the legislature meant what it said. Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005). In adhering to this rule, we show our respect for the legislature and recognize that if it enacted into law something different from what it intended, it would amend the statute to conform to its intent. Getts v. State, 155 S.W.3d 153, 158 (Tex. Crim. App. 2005) (citing Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004) ("It is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think . . . is the preferred result.")).
The legislature has provided the Code Construction Act to assist in statutory interpretation. It instructs that "words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Tex. Gov't. Code Ann. § 311.011(b) (Vernon 2005). In § 311.005(13) of the Code Construction Act, the legislature expressly stated its intent regarding its use of the word "including" in statutory provisions, providing: "'Includes' and 'including' are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded." Tex. Gov't. Code Ann. § 311.005(13) (Vernon 2005). This Court relied on § 311.005(13) in interpreting the statutory meaning of "including" in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App. 1992) (plurality opinion), superseded by statute, Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994). Pursuant to § 311.005(13), we established that the list following "including" in Article 37.07(3)(a) of the Texas Code of Criminal Procedure (4) was not exclusive as to the evidence admissible at the sentencing phase of trial, as long as it was relevant to sentencing. Grunsfeld, 843 S.W.2d at 525 (explaining that the legislature's use of the term "including" in amending Article 37.07(3)(a) rendered the list following it nonexclusive); see also Beasley v. State, 902 S.W.2d at 456-57 (holding that evidence concerning the activities of a gang, to which the appellant belonged, was admissible under Article 37.07(3)(a) because matters relevant to sentencing were not limited to "the prior criminal record of the defendant, his general reputation and his character"). (5)
The lower courts have also interpreted the legislature's use of the word "including" as a means of illustration and not exclusion. For instance, in Leach v. State, the court of appeals applied § 311.005(13) to the defendant's community supervision condition, which tracked statutory language in the Texas Code of Criminal Procedure, and held that the word "including" did not "creat[e] a presumption against further inclusion of terms not expressly stated." 170 S.W.3d 669, 673 (Tex. App.-Fort Worth 2005, pet. ref'd) (holding that because "including" was a term of enlargement, the defendant had violated his community supervision by going within 1000 feet of a grassy area where children played, even though this location was not specified in the list of prohibited premises). Similarly, in Wilburn v. State, the court of appeals relied on § 311.005(13) to reject the appellant's argument that, by specifically including franchise taxes in the Franchise Tax Act, the legislature had intended to exclude directors' and officers' liability for all other taxes. 824 S.W.2d 755 (Tex. App.-Austin 1992, no pet.). In H.G. Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., this same court of appeals reasoned that the Railroad Commission of Texas's use of the word "including" in a notice provision did not create an exclusive list of interests entitled to notice. 36 S.W.3d 597 (Tex. App.-Austin 2000, pet. denied). In fact, citing § 311.005(13), the court of appeals stated that "the Commission's use of the word 'include' in the provision signified that the list is not exclusive." Id. at 603 (emphasis added).
Both this Court and the lower courts of appeals have construed "including" as a term of enlargement in accordance with the legislature's intention. By employing the word "including" to illustrate an example of a governmental record, the legislature did not by its plain language intend to exclude documents that were filed with the court from the definition of § 37.01(2)(A). In spite of the fact that the word "including" is unambiguous and the legislature has assigned it a particular meaning of enlargement, Appellee argues that the definition of a governmental record still excludes the petition for expunction at issue.
First, Appellee claims that the legislature would have included pleadings in the express language of § 37.01(2)(A), if it had intended them to be governmental records. We have already explained that the legislature's decision to name a court record as an example of a governmental record does not narrow what qualifies as a governmental record. Furthermore, we agree with the State that "it is difficult to see how the legislature would have to make any additions to the definition of governmental record for the current word 'anything' to include a pleading." (6) Second, Appellee contends that the phrase "for information" in the definition of governmental record operates to exclude the petition for expunction because it seeks to destroy other governmental records. Just because the filing of a petition for expunction may result in the destruction of certain records does not take away from the fact that the petition gives the government information about which records the petitioner wants to expunge. Third, Appellee contends that the petition for expunction is not a governmental record because it had not been received by the government when the false entries were made. See Pokladnik v. State, 876 S.W.2d 525 (Tex. App.-Dallas 1994, no pet.); Constructors Unlimited v. State, 717 S.W.2d 169 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). Appellee's argument is misplaced because he relies on cases in which defendants were charged under § 37.10(a)(1), which requires knowingly making a false entry in, or false alteration of, a governmental record, and not under § 37.10(a)(5), which requires making, presenting, or using a governmental record with knowledge of its falsity. Although the petition for expunction was not a governmental record when Appellee prepared it, it became a governmental record once the court received it and he used it in seeking to obtain the expunction of records. See Morales v. State, 11 S.W.3d 460 (Tex. App.-El Paso 2000, pet. ref'd) (holding that even if a petition containing signatures for placement on the ballot was not a governmental record when it was falsified, it became a governmental record after it was accepted by the party chairperson and the candidate relied on it to maintain his position on the ballot). We conclude that the legislature's definition of a governmental record is clear and unambiguous and may include a court record, such as the petition for expunction at issue.
Having established that the clear and unambiguous language of § 37.01(2)(A) does not exclude pleadings, such as a petition for expunction, from the definition of a governmental record, it is necessary to determine whether bringing the petition for expunction within the language of the statute would lead to an "absurd result that the legislature could not possibly have intended." Getts, 155 S.W.3d at 155 (citing Boykin, 818 S.W.2d at 785-86). Relying on § 311.021(5) of the Code Construction Act for the proposition that in enacting a statute, there is a presumption that public interest is favored over any private interest, Appellee describes the allegedly falsified petition for expunction as a mistaken pleading, the prosecution of which "would have a chilling effect upon our system of jurisprudence." He characterizes the result of including pleadings in the definition of a governmental record as: "the State's orwellian [sic] persecution of lawyers by attempting to deprive counselors licensed by the Supreme Court of Texas of their ability to earn a living practicing before our courts." Clearly, Appellee misses the point of § 37.10, which does not effectively disbar attorneys, but makes them criminally liable if they tamper with a governmental record. While § 37.10(a)(5) makes it an offense to make, present, or use a governmental record with knowledge of its falsity, § 37.10(a)(3) makes it an offense to intentionally destroy, conceal, remove, or impair a governmental record, which is effectively what the falsified petition for expunction was attempting to do. There is nothing absurd about the legislature seeking to prohibit these acts with respect to a petition for expunction or other pleadings, and these prohibitions do not preclude effective lawyering, as Appellee suggests, by forbidding attorneys from entering alternative pleadings. Tampering with a governmental record pursuant to the definitions of §§ 37.10(a)(3) and 37.10(a)(5) is very different from advocating a client's interests by advancing different legal theories which have bases in the facts and the law.
Furthermore, we have not often considered the issue of what constitutes a governmental record, but our caselaw indicates that there is nothing unique about a petition for expunction such that the legislature would seek to treat it differently from all the other records that would fall within its scope. For instance, applications for government benefits, such as the one in State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999), clearly qualify as governmental records. It is not at all absurd for the legislature to include pleadings within the meaning of a governmental record pursuant to § 37.10(a)(5). The legislature obviously meant to protect the people of the State by making it a crime to tamper with governmental records. By enacting § 37.10, the legislature intended to prevent a multitude of harms, including the destruction of governmental records, the perpetration of a fraud upon the court, and the miscarriage of justice that could result from the use of falsified records. There is nothing absurd about the legislature criminalizing such conduct.
Conclusion
Because the legislature's definition of a governmental record is clear and unambiguous, and including pleadings in this definition does not lead to an absurd result, it is unnecessary to examine the legislature's intent in amending the definition of a governmental record in 1997. The court of appeals erred in undertaking such an analysis. We reverse the decision of the court of appeals and remand the case for consideration of the second ground for review.
Meyers, J.
Delivered: March 22, 2006
Publish
1. Rule 13 of the Texas Rules of Civil Procedure is entitled "Effect of Signing of Pleadings, Motions and Other Papers; Sanctions."
2. Section 37.10(a)(5) provides that a person commits the offense of tampering with a governmental record if he "makes, presents, or uses a governmental record with knowledge of its falsity." Tex. Penal Code Ann. § 37.10(a)(5) (Vernon Supp. 2004-2005). Pursuant to § 37.10(c)(1), this offense is "a Class A misdemeanor unless the actor's intent is to defraud or harm another, in which event the offense is a state jail felony." Tex. Penal Code Ann. § 37.10(c)(1) (Vernon Supp. 2004-2005).
3. In 1997, the legislature amended § 37.01 by adding the phrase "including a court record" to the definition of "governmental record" in what had previously been § 37.01(1)(A). The legislature moved the definition of governmental record from subsection (1) to subsection (2) and added a definition of a "court record" in § 37.01(1). See Tex. Penal Code Ann. § 37.01 (Vernon Supp. 1998).
4. At the time we decided
Grunsfield, Article 37.07(3)(a) provided that "regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character." Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1991) (emphasis added). Subsequent to our decision in Grunsfeld, the legislature amended the language of § 37.07(3)(a) to clarify that evidence of unadjudicated extraneous offenses and prior bad acts were admissible at punishment. See Tex. Code Crim. Proc. art. 37.07(3)(a) (Vernon Supp. 1994); Beasley v. State, 902 S.W.2d 452, 457 (Tex. Crim. App. 1995) (plurality opinion) (McCormick, P.J., concurring).
5. Although we decided
Beasley in 1995, we relied on the earlier version of Article 37.07(3)(a), which we interpreted in Grunsfeld and which was in effect when the appellant had committed his offense.
6. The State first advanced this argument in its brief to the Fifth Court of Appeals.
Wednesday, December 12, 2007
The jurisdictional structure of the Texas court system is unimaginably abstruse.
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IN THE SUPREME COURT OF TEXAS
════════════
No. 03-0831
════════════
Yusuf Sultan,
d/b/a U.S. Carpet and Floors, Petitioner,
v.
Savio Matthew, Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
════════════════════════════════════════════════════
Justice Hecht, joined by Justice Wainwright and Justice Medina, dissenting.
The jurisdictional structure of the Texas court system is unimaginably abstruse. Take for example this case, which raises what one might think would be a relatively simple question: Can a $4,000 judgment for damage caused by home flooring installation be appealed to the court of appeals? Here is the Court’s answer: yes, if the judgment was rendered by a district court, or by a county court Footnote or a statutory county court Footnote in a case that originated in or was transferred Footnote to that court from a justice court or small claims court, or was appealed from a justice court in a case that originated there or was transferred there from the small claims court, but no, if the judgment was rendered by county court or a statutory county court in a case appealed from a small claims court. One might wonder why the answer should be so complicated, and why the court of appeals’ jurisdiction should depend on where, among several trial courts all with jurisdiction, the case was first filed and whether it was transferred. Why, indeed.
In all fairness, the Court is trying to make sense of a half-century-old ambiguous statute that is part of a jurisdictional scheme that has gone from elaborate, when the statute was enacted, to Byzantine. Today’s complex answer to a simple question does not much worsen matters that are already in terrible shape. But we are seldom presented with the opportunity to give a jurisdictional statute a reasonable construction that results in more uniformity and simplicity (even if only slightly more), and given that opportunity in this case, I would seize it. Since 1892, the court of civil appeals and its successor, the court of appeals, have had jurisdiction over any civil case involving more than $100. Footnote I would hold that jurisdiction does not depend on where the first judgment in the case was rendered — whether in the small claims court, the justice court, the statutory county court, the county court, or the district court. (To keep things simple, I would leave statutory probate courts for another day. Footnote ) Accordingly, I respectfully dissent.
As I see it, the principal error in the Court’s analysis is that it does not pay proper attention to the context in which the statutory language we have to construe was written and the jurisdictional scheme of which it is a part. The Small Claims Court Act was enacted in 1953 and has since been recodified and amended. Footnote In 1953, four trial courts had jurisdiction over claims for money damages: the district court, with a minimum jurisdictional limit of $500; Footnote the county court in each county, with jurisdiction of claims involving between $200 and $1,000; Footnote the additional statutory county courts (18 in 13 counties), with the same monetary limits as the county courts; and the justice court, with exclusive jurisdiction of claims up to $200. Footnote The Act created a fifth court, the small claims court, but no new judges; each justice of the peace in addition to being judge of the justice court was also made judge of the small claims court. Footnote Notwithstanding the justice court’s constitutionally “exclusive” jurisdiction of claims up to $200, Footnote the small claims court was given jurisdiction of wage claims up to $100 and other monetary claims up to $50. Footnote Thus, the small claims court and justice court had concurrent jurisdiction over the smallest claims, and the same justice of the peace heard them, whether sitting as judge of the justice court or as judge of the small claims court. Neither court’s jurisdiction overlapped that of the statutory county court, the county court, or the district court.
The purpose of the Act, according to the Legislature, was to address “[t]he fact that many citizens of the State of Texas are now in effect denied justice because of the present expense and delay of litigation when their claims involve small sums of money”, Footnote but it is doubtful whether the Act did much to facilitate the adjudication of small claims already being handled by the same justices of the peace in the justice courts. Footnote The Act prescribed procedures that are less extensive than the rules applicable in justice courts but not appreciably simpler in actual practice. Footnote For example, the Act permits an action to be commenced by filing a simple, sworn statement, Footnote but does not permit oral pleadings, which are standard in justice court. Footnote Discovery is permitted in justice court, Footnote and while it was not expressly permitted at first in small claims courts, it is now. Footnote Perhaps the most significant difference between the two courts was the Act’s admonition, inapplicable in justice court, that:
In every case before the Small Claims Court, it shall be the duty of the judge to develop all of the facts in the particular case. In the exercise of this duty, the judge may propound any question of any witness or party to the suit or upon his own motion may summon any party to appear as witness in the suit as, in the discretion of the judge, appears necessary to effect a correct judgment and speedily dispose of such case. Footnote
This is in contrast to cases holding that, although a trial judge may examine a witness during a bench trial, a trial judge should not examine witnesses who are testifying before a jury. Footnote A jury trial may be demanded in either court. Footnote
The jurisdictional structure of the trial courts has changed markedly since 1953. The Constitution has been amended to omit a minimum monetary limit on the district court’s jurisdiction, Footnote and whether any such limit remains is an unresolved question. Footnote The Constitution has also been amended to omit monetary limits on the county court’s jurisdiction. Footnote Limits now prescribed by statute are generally from $200 up to $5,000, Footnote but at least one county court has no civil jurisdiction at all. Footnote Monetary jurisdictional limits on statutory county courts are generally from $500 to $100,000, Footnote but they vary widely from county to county, and many such courts have no monetary limits. The justice court retains “exclusive” jurisdiction over claims up to $200, Footnote but the upper monetary limit of its jurisdiction has been increased by statute to $5,000, exclusive of interest. Footnote The small claims court also has jurisdiction of all monetary claims up to $5,000, exclusive of costs. Footnote For many individual courts, statutes limit or extend jurisdiction based on the subject matter of cases. Also, county court judges, statutory county judges, justices of the peace as judges of the justice courts, and justices of the peace as judges of the small claims courts may, within their discretion, transfer cases to one another if the transferred case is within the transferee court’s jurisdiction, and sit for one another on any case over which the sitting judge would have jurisdiction in his or her own court. Footnote I cannot begin to describe in detail the jurisdiction of Texas trial courts. My point here is merely to show how monetary limits and the jurisdictional boundaries among trial courts have changed in the past half century.
It is in this full historical context that the provision here in question must be construed. The Small Claims Act permits an appeal to the county court or statutory county court from a “final judgment” in a case involving more than $20, exclusive of costs. Footnote The appeal is actually a trial de novo in the county court or statutory county court. Footnote Section 13 of the Act, now recodified as section 28.035(d) of the Government Code, then states that the judgment on appeal is “final”. Footnote As the Court notes, “the term ‘final,’ as applied to judgments, has more than one meaning.” Footnote In section 13 of the Act, “final” could mean one of three things: (1) not interlocutory, and therefore subject to appeal — the way the word is used a few sentences earlier in permitting an appeal from a “final judgment”; (2) not subject to appeal at all; or (3) no longer subject to nullification by trial de novo, like the small claims court judgment, but appealable like any other judgment. I agree with the Court that the first meaning makes section 13 a false statement because it is possible for judgments of the county court or county court at law to be interlocutory. For example, a plaintiff might sue two defendants and take a default judgment against one, which would be interlocutory until it was severed or the entire case was adjudicated. The statement that a judgment on appeal is “final” cannot mean that a judgment on appeal is not interlocutory.
The Court adopts the second possible meaning of “final”, that the judgment of the county court or statutory county court after trial de novo cannot be appealed to the court of appeals. For several reasons, I think the Court’s construction is implausible.
First: If the 1953 Legislature intended section 13 to mean that a small claims court case could never reach the court of civil appeals, then it stated nothing that was not already true. The maximum jurisdictional limit of the small claims court in 1953 was $100, and it was that high only for wage claims. The limit for other monetary claims was $50. The minimum jurisdictional limit of the court of civil appeals was $100. Footnote Thus, no case within the small claims court’s jurisdiction could ever reach the court of civil appeals unless the amount in controversy increased during the trial de novo appeal in the county court or statutory county court, and there was at least some authority that seemed to prohibit such a change in the case. Footnote Thus, under the law as it existed in 1953, no case within the small claims court’s jurisdiction could ever be appealed past the county court or statutory county court, and there was no reason for the Legislature to reiterate that fact in the Act.
Second: As the Court says, the Legislature’s clear intent in creating the small claims courts was “to provide an affordable and expeditious procedure for litigating claims involving relatively small amounts of money” Footnote — up to $100 in 1953. Consistent with that intent, the Act did not allow appeal in cases involving up to $20, Footnote and it might well have allowed only one appeal in cases involving between $20 and $100. But it would have been entirely inconsistent for the Legislature to have created a court to handle small claims expeditiously and at the same time set up a structure that, when the court’s jurisdiction was increased, would make the small claims court the only court in the State whose judgments on significant claims could not be reviewed by the court of civil appeals. The Legislature surely foresaw that the small claims court’s monetary jurisdictional limits might be increased over the years, as they were in 1963, Footnote 1983, Footnote 1987, Footnote 1989, Footnote and 1991. Footnote The current limit of $5,000 is no longer a “relatively small amount[] of money”, at least in the same sense $100 was in 1953. (The U.S. Department of Labor reports that with inflation, $100 in 1953 is now the equivalent of $744.57 in 2005. Footnote ) Even if the 1953 Legislature did not contemplate that a successor body would someday consider a claim for $5,000 within the jurisdiction of the small claims court, there is also no reason to think that it intended for judgments on much larger claims, in whatever court they might be rendered, not to be appealed to the court of appeals.
Third: Indeed, the 1981 Legislature expressed the contrary intent, re-enacting what was then article 2249 of the Texas Revised Civil Statutes Annotated, which stated in pertinent part:
An appeal or Writ of Error may be taken to the Court of Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases in which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds one hundred dollars exclusive of interest and costs. Footnote
Section 13 of the 1953 Act was never amended or re-enacted. It and article 2249 were recodified in 1985 as sections 28.053 and section 22.220(a) of the Texas Government Code, respectively. Footnote Article 2249, the later-enacted provision, controls over section 13. Footnote More importantly, however, the re-enactment of article 2249 shows that the Legislature never intended an exception to the court of civil appeals’ jurisdiction for cases originating in small claims court.
Fourth: On several occasions the Legislature has expressly prohibited appeals from statutory county courts to the court of appeals in cases in which the amount in controversy does not exceed $100, exclusive of interest and costs, implying that an appeal can be taken in any case in which a greater amount is in controversy. For example, section 25.1902 of the Texas Government Code, pertaining to the county court at law in Potter County, states:
(c)An appeal or writ of error may not be taken to the court of appeals from a final judgment of a county court at law if:
(1)the judgment or amount in controversy does not exceed $100, exclusive of interest and costs; and
(2)the case is a civil case over which the court has appellate or original concurrent jurisdiction with the justice court. Footnote
Similar provisions apply to the statutory county courts in Cameron County, Footnote Grayson County, Footnote and Lubbock County. Footnote Although the statutes pertaining to the three latter counties were enacted prior to 1953, Footnote the statute pertaining to Potter County was enacted in 1955, Footnote after the Small Claims Court Act. In 1985, when statutes pertinent to the jurisdiction of constitutional county courts were recodified in Chapter 26 of the Government Code, Footnote the revision was no less explicit. Section 26.042, inter alia, provides generally that a constitutional county court has limited concurrent jurisdiction with the justice courts, Footnote and that:
(c) If under Subchapter E [“Provisions Relating to Particular Counties” Footnote ] a county court has original concurrent jurisdiction with the justice courts in all civil matters in which the justice courts have jurisdiction, an appeal or writ of error may not be taken to the court of appeals from a final judgment of the county court in a civil case in which:
(1) the county court has appellate or original concurrent jurisdiction with the justice courts; and
(2) the judgment or amount in controversy does not exceed $100, exclusive of interest and costs. Footnote
As the Revisor’s Note explains, subsection (c) was “derived from similar provisions found in each of the local laws codified in Subchapter E in which the county court is given full concurrent civil jurisdiction with the justice courts.” Footnote These statutes show that the Legislature’s intent before and after passing the Act was that the court of civil appeals would have jurisdiction in cases involving more than $100.
Moreover, other statutes clearly contemplate that a “final judgment” marks when a case can be appealed, in the absence of language expressly providing otherwise, rather than when a judgment cannot be appealed. Section 24.007 of the Property Code also contemplates that express language is necessary to bar appeal of an otherwise appealable “final judgment” of a county court:
A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. Footnote
Section 821.025 of the Health and Safety Code is also express in limiting the availability of an appeal. Footnote Statutes barring or limiting review in this Court are no less explicit. Section 22.225 (b) of the Government Code, provides that a judgment of a court of appeals is “conclusive on the law and facts, and a petition for review is not allowed to the supreme court,” in certain cases, unless a further exception applies. Footnote
To reiterate, if the Court has correctly construed section 13 of the Act, then the following is true of a case involving $5,000:
jurisdiction in court of appeals?
filed in the district court
yes
filed in the county court or statutory county court, and decided by the judge of that court, another such court, or a justice of the peace
yes
filed in the justice court, and decided by a county court or statutory county court judge, or by a justice of the peace
yes
filed in the small claims court, transferred to the justice court, county court or statutory county court, and decided by any judge or justice of the peace eligible to sit
yes
filed in the small claims court, and decided by any county court or statutory county court judge, or by a justice of the peace
no
No reason can be offered for the one anomaly. Nor is the would-be appellant’s loss, due to an incorrect but unreviewable judgment, necessarily limited to $ 5,000, as one of the cases cited by the Court illustrates. In Oropeza v. Valdez, Footnote defendant Oropeza sought review of a county court judgment for $5,600, on the ground that this award was void insofar as it exceeded both the jurisdiction of the justice court and the $4,950 that plaintiff Valdez had sought and obtained in the justice court. Footnote The San Antonio Court of Appeals dismissed his appeal for want of jurisdiction, citing section 28.053 (d) of the Government Code, but suggested that there might be other legal remedies available. Footnote Oropeza took up this vague invitation, seeking injunctive and declaratory relief in the district court, asserting that the county court at law's judgment was void because it awarded monetary relief in excess of the jurisdictional limit of the small claims court. Footnote The district court concluded that the county court judgment was not void, and the court of appeals, noting that the district court could have concluded that the increased damages were properly awarded because they had accrued because of the passage of time, affirmed. Footnote Thus, even if the damages awarded had exceeded the jurisdiction of the justice court – or the county court – by a far more substantial amount, a litigant would be left without judicial review. Footnote
The third possible meaning of “final” in section 13 of the Small Claims Court Act — that the judgment of the county court or statutory county court after de novo trial is, unlike the small claims court judgment, final and appealable like any other judgment — avoids anomalous consequences, preserves the limit on appeal for small claims of up to $100, and is a reasonable construction of the statute. A judgment of the small claims court, subject to “appeal” by trial de novo, is not “final” in the same sense as other judgments. Footnote As Chief Justice Calvert wrote for the Court in Southern Canal Co. v. State Bd. of Water Eng’rs:
In Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692, we said: “Power to try a case de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.” The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, but is nullified. Examples of that type of trial are found in our statutes applicable to appeals from Justice Court judgments and from awards made by the Industrial Accident Board. Footnote
In the Small Claims Court Act, the Legislature had referred to a judgment of the small claims court as “final”, meaning subject to trial de novo, and may simply have wanted to emphasize for small claims litigants that the judgment after trial de novo was “final” in yet another sense of the word. This, in my view, is the most plausible construction of section 13, and certainly the least problematic.
For these reasons, I would hold that the court of appeals had jurisdiction of petitioner’s appeal and would reverse and remand to that court for consideration of the merits.
Nathan L. Hecht
Justice
Opinion delivered: November 18, 2005
Footnotes in HTML versions of opinions are designated by superscript “balloons” or boxes (click on either for the footnote text) and are not numbered. For an exact copy of the opinion, retrieve the Adobe PDF version.
IN THE SUPREME COURT OF TEXAS
════════════
No. 03-0831
════════════
Yusuf Sultan,
d/b/a U.S. Carpet and Floors, Petitioner,
v.
Savio Matthew, Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
════════════════════════════════════════════════════
Justice Hecht, joined by Justice Wainwright and Justice Medina, dissenting.
The jurisdictional structure of the Texas court system is unimaginably abstruse. Take for example this case, which raises what one might think would be a relatively simple question: Can a $4,000 judgment for damage caused by home flooring installation be appealed to the court of appeals? Here is the Court’s answer: yes, if the judgment was rendered by a district court, or by a county court Footnote or a statutory county court Footnote in a case that originated in or was transferred Footnote to that court from a justice court or small claims court, or was appealed from a justice court in a case that originated there or was transferred there from the small claims court, but no, if the judgment was rendered by county court or a statutory county court in a case appealed from a small claims court. One might wonder why the answer should be so complicated, and why the court of appeals’ jurisdiction should depend on where, among several trial courts all with jurisdiction, the case was first filed and whether it was transferred. Why, indeed.
In all fairness, the Court is trying to make sense of a half-century-old ambiguous statute that is part of a jurisdictional scheme that has gone from elaborate, when the statute was enacted, to Byzantine. Today’s complex answer to a simple question does not much worsen matters that are already in terrible shape. But we are seldom presented with the opportunity to give a jurisdictional statute a reasonable construction that results in more uniformity and simplicity (even if only slightly more), and given that opportunity in this case, I would seize it. Since 1892, the court of civil appeals and its successor, the court of appeals, have had jurisdiction over any civil case involving more than $100. Footnote I would hold that jurisdiction does not depend on where the first judgment in the case was rendered — whether in the small claims court, the justice court, the statutory county court, the county court, or the district court. (To keep things simple, I would leave statutory probate courts for another day. Footnote ) Accordingly, I respectfully dissent.
As I see it, the principal error in the Court’s analysis is that it does not pay proper attention to the context in which the statutory language we have to construe was written and the jurisdictional scheme of which it is a part. The Small Claims Court Act was enacted in 1953 and has since been recodified and amended. Footnote In 1953, four trial courts had jurisdiction over claims for money damages: the district court, with a minimum jurisdictional limit of $500; Footnote the county court in each county, with jurisdiction of claims involving between $200 and $1,000; Footnote the additional statutory county courts (18 in 13 counties), with the same monetary limits as the county courts; and the justice court, with exclusive jurisdiction of claims up to $200. Footnote The Act created a fifth court, the small claims court, but no new judges; each justice of the peace in addition to being judge of the justice court was also made judge of the small claims court. Footnote Notwithstanding the justice court’s constitutionally “exclusive” jurisdiction of claims up to $200, Footnote the small claims court was given jurisdiction of wage claims up to $100 and other monetary claims up to $50. Footnote Thus, the small claims court and justice court had concurrent jurisdiction over the smallest claims, and the same justice of the peace heard them, whether sitting as judge of the justice court or as judge of the small claims court. Neither court’s jurisdiction overlapped that of the statutory county court, the county court, or the district court.
The purpose of the Act, according to the Legislature, was to address “[t]he fact that many citizens of the State of Texas are now in effect denied justice because of the present expense and delay of litigation when their claims involve small sums of money”, Footnote but it is doubtful whether the Act did much to facilitate the adjudication of small claims already being handled by the same justices of the peace in the justice courts. Footnote The Act prescribed procedures that are less extensive than the rules applicable in justice courts but not appreciably simpler in actual practice. Footnote For example, the Act permits an action to be commenced by filing a simple, sworn statement, Footnote but does not permit oral pleadings, which are standard in justice court. Footnote Discovery is permitted in justice court, Footnote and while it was not expressly permitted at first in small claims courts, it is now. Footnote Perhaps the most significant difference between the two courts was the Act’s admonition, inapplicable in justice court, that:
In every case before the Small Claims Court, it shall be the duty of the judge to develop all of the facts in the particular case. In the exercise of this duty, the judge may propound any question of any witness or party to the suit or upon his own motion may summon any party to appear as witness in the suit as, in the discretion of the judge, appears necessary to effect a correct judgment and speedily dispose of such case. Footnote
This is in contrast to cases holding that, although a trial judge may examine a witness during a bench trial, a trial judge should not examine witnesses who are testifying before a jury. Footnote A jury trial may be demanded in either court. Footnote
The jurisdictional structure of the trial courts has changed markedly since 1953. The Constitution has been amended to omit a minimum monetary limit on the district court’s jurisdiction, Footnote and whether any such limit remains is an unresolved question. Footnote The Constitution has also been amended to omit monetary limits on the county court’s jurisdiction. Footnote Limits now prescribed by statute are generally from $200 up to $5,000, Footnote but at least one county court has no civil jurisdiction at all. Footnote Monetary jurisdictional limits on statutory county courts are generally from $500 to $100,000, Footnote but they vary widely from county to county, and many such courts have no monetary limits. The justice court retains “exclusive” jurisdiction over claims up to $200, Footnote but the upper monetary limit of its jurisdiction has been increased by statute to $5,000, exclusive of interest. Footnote The small claims court also has jurisdiction of all monetary claims up to $5,000, exclusive of costs. Footnote For many individual courts, statutes limit or extend jurisdiction based on the subject matter of cases. Also, county court judges, statutory county judges, justices of the peace as judges of the justice courts, and justices of the peace as judges of the small claims courts may, within their discretion, transfer cases to one another if the transferred case is within the transferee court’s jurisdiction, and sit for one another on any case over which the sitting judge would have jurisdiction in his or her own court. Footnote I cannot begin to describe in detail the jurisdiction of Texas trial courts. My point here is merely to show how monetary limits and the jurisdictional boundaries among trial courts have changed in the past half century.
It is in this full historical context that the provision here in question must be construed. The Small Claims Act permits an appeal to the county court or statutory county court from a “final judgment” in a case involving more than $20, exclusive of costs. Footnote The appeal is actually a trial de novo in the county court or statutory county court. Footnote Section 13 of the Act, now recodified as section 28.035(d) of the Government Code, then states that the judgment on appeal is “final”. Footnote As the Court notes, “the term ‘final,’ as applied to judgments, has more than one meaning.” Footnote In section 13 of the Act, “final” could mean one of three things: (1) not interlocutory, and therefore subject to appeal — the way the word is used a few sentences earlier in permitting an appeal from a “final judgment”; (2) not subject to appeal at all; or (3) no longer subject to nullification by trial de novo, like the small claims court judgment, but appealable like any other judgment. I agree with the Court that the first meaning makes section 13 a false statement because it is possible for judgments of the county court or county court at law to be interlocutory. For example, a plaintiff might sue two defendants and take a default judgment against one, which would be interlocutory until it was severed or the entire case was adjudicated. The statement that a judgment on appeal is “final” cannot mean that a judgment on appeal is not interlocutory.
The Court adopts the second possible meaning of “final”, that the judgment of the county court or statutory county court after trial de novo cannot be appealed to the court of appeals. For several reasons, I think the Court’s construction is implausible.
First: If the 1953 Legislature intended section 13 to mean that a small claims court case could never reach the court of civil appeals, then it stated nothing that was not already true. The maximum jurisdictional limit of the small claims court in 1953 was $100, and it was that high only for wage claims. The limit for other monetary claims was $50. The minimum jurisdictional limit of the court of civil appeals was $100. Footnote Thus, no case within the small claims court’s jurisdiction could ever reach the court of civil appeals unless the amount in controversy increased during the trial de novo appeal in the county court or statutory county court, and there was at least some authority that seemed to prohibit such a change in the case. Footnote Thus, under the law as it existed in 1953, no case within the small claims court’s jurisdiction could ever be appealed past the county court or statutory county court, and there was no reason for the Legislature to reiterate that fact in the Act.
Second: As the Court says, the Legislature’s clear intent in creating the small claims courts was “to provide an affordable and expeditious procedure for litigating claims involving relatively small amounts of money” Footnote — up to $100 in 1953. Consistent with that intent, the Act did not allow appeal in cases involving up to $20, Footnote and it might well have allowed only one appeal in cases involving between $20 and $100. But it would have been entirely inconsistent for the Legislature to have created a court to handle small claims expeditiously and at the same time set up a structure that, when the court’s jurisdiction was increased, would make the small claims court the only court in the State whose judgments on significant claims could not be reviewed by the court of civil appeals. The Legislature surely foresaw that the small claims court’s monetary jurisdictional limits might be increased over the years, as they were in 1963, Footnote 1983, Footnote 1987, Footnote 1989, Footnote and 1991. Footnote The current limit of $5,000 is no longer a “relatively small amount[] of money”, at least in the same sense $100 was in 1953. (The U.S. Department of Labor reports that with inflation, $100 in 1953 is now the equivalent of $744.57 in 2005. Footnote ) Even if the 1953 Legislature did not contemplate that a successor body would someday consider a claim for $5,000 within the jurisdiction of the small claims court, there is also no reason to think that it intended for judgments on much larger claims, in whatever court they might be rendered, not to be appealed to the court of appeals.
Third: Indeed, the 1981 Legislature expressed the contrary intent, re-enacting what was then article 2249 of the Texas Revised Civil Statutes Annotated, which stated in pertinent part:
An appeal or Writ of Error may be taken to the Court of Appeals from every final judgment of the district court in civil cases, and from every final judgment in the county court in civil cases of which the county court has original jurisdiction, and from every final judgment of the county court in civil cases in which the court has appellate jurisdiction, where the judgment or amount in controversy exceeds one hundred dollars exclusive of interest and costs. Footnote
Section 13 of the 1953 Act was never amended or re-enacted. It and article 2249 were recodified in 1985 as sections 28.053 and section 22.220(a) of the Texas Government Code, respectively. Footnote Article 2249, the later-enacted provision, controls over section 13. Footnote More importantly, however, the re-enactment of article 2249 shows that the Legislature never intended an exception to the court of civil appeals’ jurisdiction for cases originating in small claims court.
Fourth: On several occasions the Legislature has expressly prohibited appeals from statutory county courts to the court of appeals in cases in which the amount in controversy does not exceed $100, exclusive of interest and costs, implying that an appeal can be taken in any case in which a greater amount is in controversy. For example, section 25.1902 of the Texas Government Code, pertaining to the county court at law in Potter County, states:
(c)An appeal or writ of error may not be taken to the court of appeals from a final judgment of a county court at law if:
(1)the judgment or amount in controversy does not exceed $100, exclusive of interest and costs; and
(2)the case is a civil case over which the court has appellate or original concurrent jurisdiction with the justice court. Footnote
Similar provisions apply to the statutory county courts in Cameron County, Footnote Grayson County, Footnote and Lubbock County. Footnote Although the statutes pertaining to the three latter counties were enacted prior to 1953, Footnote the statute pertaining to Potter County was enacted in 1955, Footnote after the Small Claims Court Act. In 1985, when statutes pertinent to the jurisdiction of constitutional county courts were recodified in Chapter 26 of the Government Code, Footnote the revision was no less explicit. Section 26.042, inter alia, provides generally that a constitutional county court has limited concurrent jurisdiction with the justice courts, Footnote and that:
(c) If under Subchapter E [“Provisions Relating to Particular Counties” Footnote ] a county court has original concurrent jurisdiction with the justice courts in all civil matters in which the justice courts have jurisdiction, an appeal or writ of error may not be taken to the court of appeals from a final judgment of the county court in a civil case in which:
(1) the county court has appellate or original concurrent jurisdiction with the justice courts; and
(2) the judgment or amount in controversy does not exceed $100, exclusive of interest and costs. Footnote
As the Revisor’s Note explains, subsection (c) was “derived from similar provisions found in each of the local laws codified in Subchapter E in which the county court is given full concurrent civil jurisdiction with the justice courts.” Footnote These statutes show that the Legislature’s intent before and after passing the Act was that the court of civil appeals would have jurisdiction in cases involving more than $100.
Moreover, other statutes clearly contemplate that a “final judgment” marks when a case can be appealed, in the absence of language expressly providing otherwise, rather than when a judgment cannot be appealed. Section 24.007 of the Property Code also contemplates that express language is necessary to bar appeal of an otherwise appealable “final judgment” of a county court:
A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. Footnote
Section 821.025 of the Health and Safety Code is also express in limiting the availability of an appeal. Footnote Statutes barring or limiting review in this Court are no less explicit. Section 22.225 (b) of the Government Code, provides that a judgment of a court of appeals is “conclusive on the law and facts, and a petition for review is not allowed to the supreme court,” in certain cases, unless a further exception applies. Footnote
To reiterate, if the Court has correctly construed section 13 of the Act, then the following is true of a case involving $5,000:
jurisdiction in court of appeals?
filed in the district court
yes
filed in the county court or statutory county court, and decided by the judge of that court, another such court, or a justice of the peace
yes
filed in the justice court, and decided by a county court or statutory county court judge, or by a justice of the peace
yes
filed in the small claims court, transferred to the justice court, county court or statutory county court, and decided by any judge or justice of the peace eligible to sit
yes
filed in the small claims court, and decided by any county court or statutory county court judge, or by a justice of the peace
no
No reason can be offered for the one anomaly. Nor is the would-be appellant’s loss, due to an incorrect but unreviewable judgment, necessarily limited to $ 5,000, as one of the cases cited by the Court illustrates. In Oropeza v. Valdez, Footnote defendant Oropeza sought review of a county court judgment for $5,600, on the ground that this award was void insofar as it exceeded both the jurisdiction of the justice court and the $4,950 that plaintiff Valdez had sought and obtained in the justice court. Footnote The San Antonio Court of Appeals dismissed his appeal for want of jurisdiction, citing section 28.053 (d) of the Government Code, but suggested that there might be other legal remedies available. Footnote Oropeza took up this vague invitation, seeking injunctive and declaratory relief in the district court, asserting that the county court at law's judgment was void because it awarded monetary relief in excess of the jurisdictional limit of the small claims court. Footnote The district court concluded that the county court judgment was not void, and the court of appeals, noting that the district court could have concluded that the increased damages were properly awarded because they had accrued because of the passage of time, affirmed. Footnote Thus, even if the damages awarded had exceeded the jurisdiction of the justice court – or the county court – by a far more substantial amount, a litigant would be left without judicial review. Footnote
The third possible meaning of “final” in section 13 of the Small Claims Court Act — that the judgment of the county court or statutory county court after de novo trial is, unlike the small claims court judgment, final and appealable like any other judgment — avoids anomalous consequences, preserves the limit on appeal for small claims of up to $100, and is a reasonable construction of the statute. A judgment of the small claims court, subject to “appeal” by trial de novo, is not “final” in the same sense as other judgments. Footnote As Chief Justice Calvert wrote for the Court in Southern Canal Co. v. State Bd. of Water Eng’rs:
In Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692, we said: “Power to try a case de novo vests a court with full power to determine the issues and rights of all parties involved, and to try the case as if the suit had been filed originally in that court.” The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, but is nullified. Examples of that type of trial are found in our statutes applicable to appeals from Justice Court judgments and from awards made by the Industrial Accident Board. Footnote
In the Small Claims Court Act, the Legislature had referred to a judgment of the small claims court as “final”, meaning subject to trial de novo, and may simply have wanted to emphasize for small claims litigants that the judgment after trial de novo was “final” in yet another sense of the word. This, in my view, is the most plausible construction of section 13, and certainly the least problematic.
For these reasons, I would hold that the court of appeals had jurisdiction of petitioner’s appeal and would reverse and remand to that court for consideration of the merits.
Nathan L. Hecht
Justice
Opinion delivered: November 18, 2005
Saturday, November 03, 2007
"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered.", DUH............
August 21, 2004
"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered." People v. Rubio, no. F043941 (Cal.Ct.App. (5th Dist.) Aug. 18, 2004).
Holding: "We agree with Rubio’s argument that the 2003 version of CALJIC No. 7.20 incorrectly defines materiality. This instruction correctly informs the jury that a false statement must be material before the defendant can be found guilty of perjury. The instruction then defines a false material statement as one that 'could influence the outcome of the proceedings in which it is uttered.' We think the correct definition of a false material statement is one that 'could probably have influenced the outcome' of the proceeding in which it is uttered. (People v. Pierce (1967) 66 Cal.2d 53, 61.)"
The court rejected the argument that the error was structural, and affirmed, finding it harmless under Chapman.
Panel: Vartarbedian, Cornell, Dawson.
Posted by Jonathan Soglin at 03:12 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
July 19, 2004
Two More Unanimous Cal. Supreme Court Decisions Today.
People v. Griffin, no. S029174 (death sentence affirmed after second penalty phase, which followed first appeal in which Court had remanded for new penalty phase because of error in giving Briggs instruction). (Author: George; unanimous.)
Kulshreshta v. First Union, no. S115654 (declarations signed under penalty of perjury outside CA do not satisfy Cal. Code Civ. Proc. sec. 2015.5, and are not admissible in summary judgment and other authorized proceedings, when contents are not certified as true “under the laws of the State of California”). (Author: Baxter; unanimous.)
June: 11 of 13 opinions unanimous.
July: 9 of 10 opinions unanimous.
Posted by Jonathan Soglin at 08:40 PM in Death Penalty, Perjury/False Statements | Permalink | Comments (0) | TrackBack
March 31, 2004
Fishy Fishing Filing May Result in False Instrument Prosecution.
Case: People v. Powers, no. A103622 (Cal.Ct.App. (1st Dist., Div. 4) Mar. 30, 2004)
Proceeding: Prosecutor's appeal of orders sustaining a demurrer to the complaint and denying the a motion to reinstate the complaint.
Holding: Reversed. A fishing activity report required to be filed under the Fish and Game Code and Department regulations is an instrument within the meaning of Penal Code section 115 and a fishing boat operator who files a false fishing activity report with the Department may be prosecuted under section 115 for knowingly offering a false instrument to be filed with a state public office.
Authoring Justice: Patricia K. Sepulveda
Posted by Jonathan Soglin at 10:27 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
"[A] false material statement is one that could probably have influenced the outcome' of the proceeding in which it is uttered." People v. Rubio, no. F043941 (Cal.Ct.App. (5th Dist.) Aug. 18, 2004).
Holding: "We agree with Rubio’s argument that the 2003 version of CALJIC No. 7.20 incorrectly defines materiality. This instruction correctly informs the jury that a false statement must be material before the defendant can be found guilty of perjury. The instruction then defines a false material statement as one that 'could influence the outcome of the proceedings in which it is uttered.' We think the correct definition of a false material statement is one that 'could probably have influenced the outcome' of the proceeding in which it is uttered. (People v. Pierce (1967) 66 Cal.2d 53, 61.)"
The court rejected the argument that the error was structural, and affirmed, finding it harmless under Chapman.
Panel: Vartarbedian, Cornell, Dawson.
Posted by Jonathan Soglin at 03:12 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
July 19, 2004
Two More Unanimous Cal. Supreme Court Decisions Today.
People v. Griffin, no. S029174 (death sentence affirmed after second penalty phase, which followed first appeal in which Court had remanded for new penalty phase because of error in giving Briggs instruction). (Author: George; unanimous.)
Kulshreshta v. First Union, no. S115654 (declarations signed under penalty of perjury outside CA do not satisfy Cal. Code Civ. Proc. sec. 2015.5, and are not admissible in summary judgment and other authorized proceedings, when contents are not certified as true “under the laws of the State of California”). (Author: Baxter; unanimous.)
June: 11 of 13 opinions unanimous.
July: 9 of 10 opinions unanimous.
Posted by Jonathan Soglin at 08:40 PM in Death Penalty, Perjury/False Statements | Permalink | Comments (0) | TrackBack
March 31, 2004
Fishy Fishing Filing May Result in False Instrument Prosecution.
Case: People v. Powers, no. A103622 (Cal.Ct.App. (1st Dist., Div. 4) Mar. 30, 2004)
Proceeding: Prosecutor's appeal of orders sustaining a demurrer to the complaint and denying the a motion to reinstate the complaint.
Holding: Reversed. A fishing activity report required to be filed under the Fish and Game Code and Department regulations is an instrument within the meaning of Penal Code section 115 and a fishing boat operator who files a false fishing activity report with the Department may be prosecuted under section 115 for knowingly offering a false instrument to be filed with a state public office.
Authoring Justice: Patricia K. Sepulveda
Posted by Jonathan Soglin at 10:27 PM in Perjury/False Statements | Permalink | Comments (0) | TrackBack
Sunday, October 07, 2007
You can not benefit from a lie........incomplete/silent record which fails to be complete and audible, Justice is truth ~not so for you right John?
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NUMBER 13-06-147-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
_________________________________________________________
IN THE INTEREST OF J.M.S., ET AL., CHILDREN
________________________________________________________
On appeal from the County Court at Law
of Kleberg County, Texas
________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion Per Curiam
Appellant, Vera Shoemaker, perfected an appeal from a judgment entered by the County Court at Law of Kleberg County, Texas, in cause number 04-044-C. On June 14, 2006, appellant filed a motion for new trial based on an incomplete record. On November 2, 2006, this Court abated the appeal and remanded the case to the trial court to make findings on these issues: 1) if, without the appellant's fault, a significant portion of the court reporter's notes and records have been lost or destroyed or - if the proceedings were electronically recorded - a significant portion of the recording has been lost or destroyed or is inaudible; 2) if the lost, destroyed, or inaudible portion of the reporter's record is necessary to the appeal's resolution; and 3) if the lost, destroyed, or inaudible portion of the reporter's record cannot be replaced by agreement of the parties.
The trial court's findings and recommendations were received and filed in this Court on December 18, 2006. The trial court found that approximately one-half of the record was audible, the latter half of the proceeding was not complete and audible, and that the incomplete and inaudible portion of the record constituted a significant portion of the record, which cannot be reconstructed. The trial court recommended that because of the unavailability of a significant portion of the record, the case should be remanded for a new hearing.
The Court, having examined and fully considered the documents on file and the trial court's findings and recommendations, is of the opinion that the matter should be remanded for a new trial. Appellant's motion for a new trial based on an incomplete record is granted. The judgment of the trial court is REVERSED, and the cause is REMANDED for a new trial.
PER CURIAM
Memorandum Opinion delivered and
filed this the 29th day of March, 2007.
NUMBER 13-06-147-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
_________________________________________________________
IN THE INTEREST OF J.M.S., ET AL., CHILDREN
________________________________________________________
On appeal from the County Court at Law
of Kleberg County, Texas
________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion Per Curiam
Appellant, Vera Shoemaker, perfected an appeal from a judgment entered by the County Court at Law of Kleberg County, Texas, in cause number 04-044-C. On June 14, 2006, appellant filed a motion for new trial based on an incomplete record. On November 2, 2006, this Court abated the appeal and remanded the case to the trial court to make findings on these issues: 1) if, without the appellant's fault, a significant portion of the court reporter's notes and records have been lost or destroyed or - if the proceedings were electronically recorded - a significant portion of the recording has been lost or destroyed or is inaudible; 2) if the lost, destroyed, or inaudible portion of the reporter's record is necessary to the appeal's resolution; and 3) if the lost, destroyed, or inaudible portion of the reporter's record cannot be replaced by agreement of the parties.
The trial court's findings and recommendations were received and filed in this Court on December 18, 2006. The trial court found that approximately one-half of the record was audible, the latter half of the proceeding was not complete and audible, and that the incomplete and inaudible portion of the record constituted a significant portion of the record, which cannot be reconstructed. The trial court recommended that because of the unavailability of a significant portion of the record, the case should be remanded for a new hearing.
The Court, having examined and fully considered the documents on file and the trial court's findings and recommendations, is of the opinion that the matter should be remanded for a new trial. Appellant's motion for a new trial based on an incomplete record is granted. The judgment of the trial court is REVERSED, and the cause is REMANDED for a new trial.
PER CURIAM
Memorandum Opinion delivered and
filed this the 29th day of March, 2007.
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