in Re: Charles Dwayne Lankford and Roberta Gresham

• Court: Court of Appeals of Texas
• Decided: June 26, 2015
• Docket: 12-15-00149-CV
• Status: Published

Opinion

ACCEPTED 12-15-00149-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 6/26/2015 3:50:46 PM CATHY LUSK CLERK

NO. 12-15-00149CV IN THE COURT OF APPEALS FILED IN 12th COURT OF APPEALS FOR THE TYLER, TEXAS TWELFTH DISTRICT OF TEXAS 6/26/2015 3:50:46 PM TYLER, TEXAS CATHY S. LUSK Clerk

In Re Charles Dwayne Lankford And Roberta Gresham, Relators ____________ From the County Court at Law Number One ANGELINA COUNTY, TEXAS

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

THOMAS W. DEATON State Bar Number: 05703500 Email: tommydeaton@lufkinlaw.com CAROLYN CARTER BELL State Bar Number: 00787061 Email: cbell@lufkinlaw.com Deaton Law Firm 103 E. Denman Lufkin, Texas 75901 Telephone: (936) 637-7778 Facsimile: (936) 637-7784 Attorneys for Stephanie Smith, Real Party in Interest

ORAL ARGUMENT REQUESTED

i SUPPLEMENTAL LIST OF PARTIES

The undersigned counsel of record supplements Relators’ List of

Parties and certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order

that the judges of this Court may evaluate possible disqualification or

recusal:

Real Parties in Interest Counsel

Stephanie Smith Thomas W. Deaton DEATON LAW FIRM 103 East Denman Lufkin, Texas 75901

Carolyn Carter Bell DEATON LAW FIRM 103 East Denman Lufkin, Texas 75901

Karla Sue Frith Unrepresented

Relators Counsel

Charles Dwayne Lankford Robert T. Cain, Jr. Robert Alderman, Jr. ALDERMAN CAIN & NEILL, PLLC 122 East Lufkin Avenue Lufkin, Texas 75901

Roberta Gresham Robert L. Flournoy LAW OFFICES OF ROBERT L. FLOURNOY

ii P.O. Box 1546 Lufkin, Texas 75902

Respondent The Hon. Joe Lee Register Judge of the County Court at Law Number One of Angelina County, Texas P.O. Box 908 Lufkin, Texas 75902

/s/ Thomas W. Deaton Thomas W. Deaton

iii TABLE OF CONTENTS

SUPPLEMENTAL LIST OF PARTIES…………………………………..….i

TABLE OF CONTENTS…….....…………………………………………......iv

INDEX OF AUTHORITIES………………………………………………….vi

STATEMENT OF THE CASE……………………………………………… 1

STATEMENT OF JURISDICTION…………………………………………2

ISSUE PRESENTED…………………………………………………………...2

STATEMENT OF FACTS……………………………………………………..2

SUMMARY OF ARGUMENT………………………………………………..10

ARGUMENT AND AUTHORITIES……………………………………….11

I. Actual Possession – Has Stephanie Smith had Actual Possession of T.D.L. for the Requisite Time?...........................................11

II. Actual Care – Has Stephanie Smith Provided Actual Care for T.D.L.?........................................................................................................12

III. Control – Did Stephanie Exercise Actual Control over T.D.L.?...16

CONCLUSION………………………………………………………………... 25

PRAYER…………………………………………………………………………28

CERTIFICATION OF REVIEW……………………………………………28

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(I)………………29

CERTIFICATE OF SERVICE………………………………………………29

iv AFFIDAVIT OF THOMAS W. DEATON………………………………….31

SUPPLEMENTAL RECORD

INDEX TO APPENDIX TO RESPONSE TO WRIT OF MANDAMUS

APPENDIX

v INDEX OF AUTHORITIES

CASES

T.W.E. v. K.M.E., 828 S.W.2d 806 (Tex.App.—San Antonio 1992, no writ)…………….….……..…11, 25

Jasek v. Tex. Dept. of Family and Protective Services 348 S.W.3d 523 (Tex. App.—Austin 2011…...…....11, 21, 22, 24, 25

In Re Fountain 433 S.W. 3d 1; 2012, Tex. App Lexis 1081……….……..20

In re Kelso 266 S.W.3d at 590-591 (Tex. App. – Fort Worth 2008, orig. proceeding)…........….21, 23, 25

In re KKC, 292 S.W.3d 788, 792-93 (Tex.App.—Beaumont 2009, no pet.)…………………………..21, 22

Lee v. City of Houston, 807 S.W.2d 290, 295, (Tex. 1991)……………..…22

In the Interest of ACFH and DABH 373 S.W.3d 148, 153 (Tex.App. San Antonio 2012)……………………………...………..24

STATUTES

TEX. FAM. CODE §102.003(a)(9)………………………………………………...11, 20, 21, 23, 25

vi RESPONSE TO PETITION FOR MANDAMUS

Stephanie Smith, a real party in interest in this proceeding,

submits this response to petition for writ of mandamus filed by Charles

Dwayne Lankford and Roberta Gresham complaining of the order of the

Honorable Joe Lee Register, County Court at Law Number One of

Angelina County, Texas, overruling their pleas to the jurisdiction.

STATEMENT OF THE CASE

Stephanie Smith agrees in principal with Relators’ Statement of

the Case and adopts the appendix of the Relators and agrees that the

appendix contains sworn, redacted copies of relevant pleadings,

discovery request, motions, and hearing transcripts. We as well have

attached an appendix that includes our cited authority that is not

included in Relators’ appendix and we have attached the supplemented

record which is the transcript of the trial court’s interview with T.D.L.

We refer to the material in Relators’ appendix by referring to Relators’

cite stamp number “R__” as it appears on the right side of the bottom of

each cited page.

1 STATEMENT OF JURISDICTION

Pursuant to TRAP 52.4(c), Stephanie Smith has omitted a

statement of jurisdiction.

ISSUE PRESENTED

Stephanie Smith, a real party in interest, adopts the issue

presented by Relators.

STATEMENT OF FACTS

Stephanie Smith agrees with Relators that the procedural history

as well as the factual history of this case requires “some untangling”

and has provided a timeline that Smith believes sets out both the

factual and procedural history that brought the parties to this juncture.

In March 22, 2002, T.D.L. was born to Charles Dwayne Lankford

and Karla Sue Lankford (R90), now known as Karla Sue Frith.

On February 20, 2003, Charles Dwayne Lankford and Karla Sue

Lankford were divorced in Angelina County, Texas. Charles was

named sole managing conservator of T.D.L. and her brother, and Karla

2 Lankford was named possessory conservator with limited and restricted

visitation. (R89-103).

On September 3, 2004, because of his absence from the country,

Charles filed a Motion to Modify in Suit Affecting the Parent-Child

Relationship and gave up managing conservatorship to T.D.L. in favor

of his mother, Roberta Gresham. An Agreed Order in Suit to Modify

Parent-Child was entered on September 8, 2004 naming Roberta as

managing conservator and relegating Charles to possessory

conservatorship of T.D.L. but giving him no periods of visitation. (R84-

88).

In January of 2007 Charles and T.D.L, who was four years old

and had had virtually no contact with Karla, her biological mother,

began living with Stephanie Smith in her home to the exclusion of the

managing conservator, Roberta Gresham. Roberta relinquished care,

possession and control of T.D.L. to Charles and Stephanie and

abdicated her responsibilities as managing conservator. (R29-31).

In March of 2008 Charles began working for Landmark

Construction and continued his employment there until February 2012.

3 His work required that he travel throughout the United States, and he

was away from home 70% to 80% of the time. (R30), (R145). During

the nearly four year period Charles worked for Landmark Construction,

T.D.L. lived in Stephanie Smith’s home and under her sole care. (R30).

On August 24, 2008 Charles and Stephanie Smith married, and

Stephanie continued to care for both T.D.L. and Charles’ son who was

also in the home. Charles was away from home approximately 70% to

80% of the time. (R29-31) (R145).

On October 14, 2009 Charles sued his mother, Roberta, by filing

a Petition to Modify Parent-Child Relationship requesting that he be

named sole managing conservator and that Roberta be named a

possessory conservator of T.D.L. The order Charles sought to modify

was the order rendered on September 8, 2004 naming Roberta Gresham

sole managing conservator of T.D.L. (R82-83).

On December 7, 2009 Temporary Orders in Suit to Modify

Parent-Child Relationship were entered naming Charles, Karla Sue

Lankford, and Roberta Gresham temporary joint managing

conservators of T.D.L. with Charles having the exclusive right to

4 designate the primary residence of T.D.L. and Roberta having some

limited visitation. (R76-79). Charles was away from home most of the

time and T.D.L. was in Stephanie’s care. Even though Roberta as joint

managing conservator had the right to possession of T.D.L., she failed

to exercise any of her periods of possession (R30) and went almost two

years without seeing T.D.L. (R140-141).

In December 2010 Roberta Gresham, still a joint managing

conservator of T.D.L. stopped all contact with Charles, Stephanie, and

T.D.L. (R30).

On April 20, 2011 a dismissal order was entered dismissing the

Petition to Modify Parent-Child Relationship that Charles had filed on

October 14, 2009. (R75). The dismissal of the petition revived the prior

order entered on September 8, 2004, putting Charles back in the

position of possessory conservator of T.D.L. with no visitation and

Roberta Gresham back in the position of sole managing conservator of

T.D.L. Roberta continued to relinquish care, control, and possession of

T.D.L. to Stephanie and Charles, who was away from home most of the

time. (R30).

5 In May 2012 Charles accepted a job with Caddell Construction, a

job which required that he live nearly 8,000 miles from home in

Afghanistan. Charles voluntarily chose expatriate status which meant

that he could return to the United States only 35 days or less each year.

(R135-136).

In July 2012 Charles left for Afghanistan, and he continues to be

employed by Caddell Construction and working in Afghanistan today.

(R 135) During his time in Afghanistan, Charles is gone approximately

90% - 94% of the time, returning home between 21 days (R31) and 35

days (R135) per year. T.D.L. remains exclusively in Stephanie’s care.

(R31).

In August 2012, after cutting off contact with Charles, Stephanie,

and T.D.L. in December of 2010, Roberta Gresham renewed contact

with them for the first time in nearly two years, and as sole managing

conservator she continued to allow T.D.L. to live with Charles and

Stephanie, knowing that Charles was living outside the country and

absent from home most of the time. (R30-31), (R143).

6 In October 2014, from Afghanistan, Charles informed Stephanie

that he wanted a divorce. (R118).

On November 14, 2014, Stephanie filed an Original Petition for

Divorce and Petition in Suit Affecting Parent-Child Relationship in

Angelina County. Stephanie requested that she and Charles be

appointed joint managing conservators of T.D.L. and that she be

designated as the conservator with the exclusive right to determine the

primary residence of T.D.L. (R62-71).

On December 1, 2014, Stephanie filed Petitioner’s Motion to

Sever and to Consolidate Cause of Action asking that the Petition in

Suit Affecting Parent-Child Relationship be severed and consolidated

with the existing SAPCR, Cause Number 35,254-02-11. (R57-58).

On December 2, 2014, Charles filed Respondent’s Original

Answer and Counter-Petition for Divorce and Original Answer in Suit

Affecting the Parent-Child Relationship (R43-53) and Respondent

Lankford’s Motion to Sever (R40-42).

On December 5, 2014, the trial court entered the Order

Granting Plaintiff’s Motion to Sever and to Consolidate Severed Cause

7 of Action, severing the Suit Affecting Parent-Child Relationship and

consolidating it with the existing cause number. (R32).

To recap the timeline, it shows that during the period September

8, 2004 to January 2007, Roberta was the sole managing conservator of

T.D.L., and Charles was a possessory conservator with no provision for

visitation. While Charles worked away from home, T.D.L. lived with

Roberta until January 2007 when Charles, T.D.L. and Stephanie began

living together and Roberta, as sole managing conservator, relinquished

care, control, and possession of T.D.L. to Charles and Stephanie.

From January 2007 to December 7, 2009, Roberta remained sole

managing conservator of T.D.L., but she continued to relinquish care,

control and possession of T.D.L. to Charles and Stephanie even though

she knew that Charles was away from home 50% to 70% of the time.

(R29-31).

From December 7, 2009 until April 20, 2011, Charles was the joint

managing conservator with the exclusive right to designate the primary

residence of T.D.L. He worked away from home 70% of the time (R30),

(R45). This period is the only hiatus during which Roberta was not the

8 managing conservator with the exclusive right to designate the primary

residence of T.D.L.

From April 20, 2011to May 12, 2015 Roberta was sole managing

conservator with the exclusive right to designate the primary residence

of T.D.L., the order entered on September 8, 2004 having been revived.

During this time, Roberta, as sole managing conservator, continued to

relinquish care, control and possession of T.D.L. During this period

Charles was away from home 70% (R29-31) to 94% (R135-136) of the

time, and Stephanie was the sole caretaker of T.D.L.

As managing conservator Roberta had the exclusive right to

determine the primary residence of T.D.L.; however, Roberta did not

move T.D.L. into her home, continued to have no contact with T.D.L.

(R30-31), took no role in parenting T.D.L., had no day to day contact

with T.D.L., and made no decisions regarding T.D.L. ( R143). Roberta

acknowledged that while she was sole managing conservator, she did

not see T.D.L. for a period of two years (R201). Roberta acknowledged

that on March 5, 2015, she did not know who T.D.L.’s teachers were.

(R201).

9 One thing the parties agree on is that during the past 8 years

Stephanie Smith has been a good mother to T.D.L. (R154 -155). With

little help from either Charles or Roberta she has reared a child who is

successful in almost every aspect of her life including academics and

sports.

SUMMARY OF THE ARGUMENT

This case presents the question of how to define actual care,

control, and possession. Texas Family Code §102.003(a)(9) gives

standing to file an original suit to a person, other than a foster parent,

who has actual care, control, and possession of the child for at least six

months ending not more than 90 days preceding the date of the filing of

the petition. The courts of appeals are divided as to whether the statute

requires legal, exclusive care, control, and possession or whether it

requires non-exclusive but permanent and consistent care, control, and

possession. The majority of the courts have adopted what we believe is

the better reasoned course finding that the term actual control need not

be legal control and that the party seeking standing need not have

exclusive control.

10 ARGUMENT AND AUTHORITIES

The purpose of Texas Family Code §102.003(a)(9) is to create

standing for those who have developed and maintained a relationship

with a child over time, T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex

App—San Antonio 1992 , no writ); Jasek v. Tex. Dept. of Family and

Protective Services, 348 S.W.3d 523 (Tex. App – Austin 2011). There is

no doubt that Stephanie Smith developed and maintained a

relationship with T.D.L. over an extended period of time.

I. Actual Possession – Has Stephanie Smith had Actual Possession

of T.D.L. for the Requisite Time?

Stephanie Smith has had possession of T.D.L. for more than 8

years. When Stephanie began living with Charles in 2007, T.D.L. was

nearly 5 years old; she is now 13 years old. The record shows that since

January 2007 Stephanie has had continuous and uninterrupted

possession of T.D.L. Because of Charles’ extended absence from the

home, Stephanie was the sole caretaker of T.D.L. a minimum of 50% of

the time up to 94% of the time (R30), (R29-31), (R135),(R145). The

managing conservator, Roberta, relinquished possession of T.D.L. and

11 abdicated her responsibilities as managing conservator, even going for a

period of two years without contacting or seeing T.D.L. (R29-31) ,

(R140-141). When asked T.D.L.’s age on cross examination, Roberta

was unable to respond correctly. (R 203). Contrary to Relator’s

assertion that he, T.D.L. and Stephanie lived in “his” house, the home

in which they lived belonged to Stephanie. (Transcript of Court’s

Interview with T.D.L., Page 6, Lines 22-23).

II. Actual Care – Has Stephanie Smith Provided Actual Care for

T.D.L.?

Stephanie Smith assumed all the usual responsibilities and duties

of a parent, and in both her mind and the mind of T.D.L. she fills the

role of mother. Children want to be in a place where they feel secure

and with people who love them. It is without doubt that T.D.L. has

forged a strong relationship with Stephanie, her primary caretaker for

most of her life, and considers Stephanie to be her mother.

During direct examination by Roberta’s lawyer, Stephanie Smith

testified as follows: (R185 -186).

Line 23 Q. And who is the mother listed there?

12 A. Stephanie Lankford.

Q. That’s you, right? You’re not her mother,

are you?

A. No, I’m not her birth mother; but, yes I am her

mother.

Q. You love her and she loves you and ---

A. I didn’t give birth to her, if that is what you

want to know, but I am her mother.

(R187 -188)

Line 25 Q. And in that do you also show on that – put in

here that you are the mother, correct?

A. Yes, sir.

Q. And then down here you say that you are

stepmom.

13 Q. Okay. So which is it?

A. By paper I’m stepmom, but in her eyes I’m her

During the Court’s interview with T.D.L. the child reflected

Stephanie’s sentiments regarding their relationship as mother and child

as follows:

Transcript of Court’s Interview with T.D.L., Page 11, Lines 7-11

Line 7 Q. How do you consider Stephanie? Is that your

stepmother or –

A. I consider her as my mom.

Q. You consider her as your mom?

On cross-examination by her lawyer, Stephanie Smith testified as

follows: (R173)

Line 11 Q. Tell the Court what relationship you have with

her regarding responsibility of this child?

14 A. She’s my daughter, and I love her.

Charles acknowledged that a parent-child bond existed between

Stephanie and T.D.L. During cross-examination by Stephanie’s lawyer,

Charles testified as follows: (R154-155)

Line 21 Q. Have you ever sent or texted an email

complimenting Ms. Lankford, Ms. Smith, your wife, on how

well she has taken care of the child?

A. Yes.

Q. In fact, she is a good mother, isn’t she?

A. She does treat her well, yes.

Q. And, in fact, it’s not odd that the child should

bond with her and consider her as her mother, is it, sir?

A. No, it is not odd.

Stephanie Smith took T.D.L. to the doctor when she was ill and for

well-child checkups and immunizations, informing Charles after the

fact. (R164-165). Stephanie Smith fed and clothed T.D.L., took care of

15 her when she was ill, (R 211), enrolled her in school, took her to school,

helped her with her home work , helped her study for tests, disciplined

her, instilled in her spiritual precepts, taught her right from wrong,

took her to church, and taught her to be a young lady. (R171-174).

III. Control – Did Stephanie Exercise Actual Control over T.D.L.?

After hearing the evidence in a hearing that lasted several hours

and after hearing testimony from five witnesses Judge Register, the

sitting judge in Angelina County Court at Law Number One who

happens to be a board certified family law expert, made the following

finding: (R225).

Lines 5-12 And my finding is she’s going to get to stay in

court, and she’s got standing for the simple reason is because the father

let her have that standing basically by his actions. That is to say, Mr.

Lankford, you relied on your wife to take over the parental role of

the mother of the child (emphasis added), and I think in doing so you

let her in the door.

For a period of more than 8 years, Stephanie Smith, because of the

absence of Charles and the inattentiveness of Roberta, assumed actual

16 control of T.D.L.’s life. The child has lived in Stephanie’s home for

several years, Stephanie tended to her physical and emotional needs on

a daily basis, she enrolled her in school, was listed as a parent on

T.D.L.’s school records, attended school activities, communicated

directly with her teachers, took her to school and picked her up from

school, prepared her meals, and oversaw her homework. (R 170-173).

The apathy and inattentiveness of Roberta, the managing

conservator, and of Charles, the father and possessory conservator, is

reflected when looking at the list of persons authorized to pick up

T.D.L. from school. Neither Charles, the father, nor Roberta, the

managing conservator are mentioned on that list. The only individuals

on the list are Stephanie Smith, her two sisters, and her mother.

(R172-173). The school emergency contacts are predominately

Stephanie Smith’s family, her two sisters who are listed as T.D.L.’s

aunts and her mother who is listed as T.D.L.’s grandmother. (R276,

279).

While Roberta’s name, address and signature appear on some

school records for purposes of enrollment, the record is clear that T.D.L.

17 resided in Stephanie Smith’s home and Stephanie had ongoing physical

custody and daily control of T.D.L.

Both Roberta and Charles admitted that they did not know who

T.D.L.’s teachers were. (R20-202), (R147). Charles admitted that he

had never attempted to contact T.D.L.’s teachers or ever made a direct

inquiry to any teacher about T.D.L. (R148) and further admitted that

the only contact he had with school was through his wife, Stephanie,

(R148) indicating that he had abdicated his parental responsibility to

Stephanie. Contrary to Charles’ testimony that he remained in close

contact with T.D.L. talking with her on the phone twice each week

while he was away from home (R120, 138, 151), when asked how many

times since 2008 Charles had called home and asked to speak to T.D.L.,

Stephanie testified that when he called home he never called to speak

to T.D.L. (R178).

When responding on cross examination, Charles testified as

follows: (R148).

Line 14 Q. And you have relied on your wife to take care of

Line 15 everything regarding this child from the time that you

18 Line 16 married her until the present time; is that right?

Line 17 A. I have allowed her to take care of things in my absence,

yes.

Stephanie Smith was authorized to make medical decisions and

consent to medical treatment and hospital care for T.D.L. (R264, 265)

Agreeing that he was gone from home at least 80% of the time, Charles

acknowledged that he gave his consent for Stephanie to make medical

decisions regarding T.D.L. at least 80% of the time. (R146).

T.D.L. is a bright, precocious, young lady who is considered by

almost everyone to excel in sports including basketball and softball.

Stephanie and her family are T.D.L.’s biggest fans, attending all of her

sporting events. Sadly, Roberta Gresham, the sole managing

conservator, and Charles, T.D.L.’s father, have never attended any of

T.D.L.’s games. (R202), (R137). Robby Fletcher, T.D.L.’s basketball and

softball coach, who coached her for some 26 games during the school

year 2014-2015 and conducted practices two times a week for the entire

school year testified before the trial court, and when asked if he knew

Charles, he replied that he had never seen him before. When asked if

19 he knew Roberta, Mr. Fletcher’s response was the same. When asked

who brought the child to practice, he testified that Stephanie Smith

brought her 99% of the time and her brother, Ms. Smith’s older son,

brought her the remainder of the time. (R206-207) As in every other

aspect of T.D.L.’s life, Stephanie Smith has taken actual control.

Undoubtedly, Stephanie Smith, based on the Jasek standard, has

developed and maintained a relationship with T.D.L. over a long period

of time. It might be argued that Stephanie’s possession of T.D.L. was

not exclusive in that Charles contended that he retained certain rights

in the child, particularly the rights to control. However, the First Court

of Appeals held that the actual care, the actual control, and the actual

possession of the child need not be exclusive, In Re Fountain 433 S.W.

3d 1; 2012, Tex. App Lexis 1081 and that requiring exclusivity would

impose a requirement not intended by the Legislature. Id. at 4.

The Third Court of Appeals in Austin analyzed the concept of

control in Texas Family Code 102.003(a)(9) and disapproved of the

notion that “actual control” necessarily meant legal authority to make

decisions for the child. The Austin Court correctly points out that the

word “actual” as used in 102.003(a)(9) is intended to indicate something 20 that exists in fact as opposed to something that is a function of legal

duties or imputation. Jasek v. Tex. Dept. of Family and Protective

Services, 348 S.W.3d 523, 535-536 (Tex. App – Austin 2011).

The Austin Court of Appeals disagreed with the case out of the

Fort Worth Court of Appeals, In re Kelso, 266 S.W.3d 586, 590 (Tex.App

– Fort Worth 2008, no pet.) as well as the case out of the Beaumont

Court of Appeals, In re KKC, 292 S.W.3d 788, 792-93 (Tex.App.—

Beaumont 2009, no pet.). In both of these cases the Fort Worth court

and the Beaumont court held that to meet standing requires “legal

control” over the children, ignoring the wording in the statute that

requires “actual control.”

In the case In re Kelso, the Fort Worth court held that the

Petitioners lacked standing under Texas Family Code § 102.003(a)(9)

because they could not show they had actual care, control, and

possession since they only had possession of the child if the mother gave

her permission. The court found that the mother maintained control as

to when and for how long the child stayed with Petitioners and had not

voluntarily relinquished permanent care, control, and possession of the

child to Petitioners for the requisite time before filing their suit. In re 21 Kelso 266 S.W.3d at 590-591 (Tex. App. – Fort Worth 2008, orig.

proceeding).

Disagreeing with Kelso, the Austin court held that there is

no language in §102.003(a)(9) that requires voluntary relinquishment

of care, possession, or control of the child by the parent or conservator.

Jasek v. Tex. Dept. of Family and Protective Services, 348 S.W.3d 523,

535 (Tex. App – Austin 2011). A court cannot add words to a statute;

that is solely the Legislature’s prerogative. Lee v. City of Houston, 807

S.W.2d 290, 295 (Tex. 1991).

In the case In re K.K.C., the Beaumont court found that the

former boyfriend who has resided in the home with the biological

mother and the child lacked standing because he had no legal right of

control over the child and no authority to make decisions on behalf of

the child. In re KKC, 292 S.W.3d 788, 792-93 (Tex.App.—Beaumont

2009, no pet.).

The Austin court disagreed with the Beaumont court’s holding in

In re KKC that to establish standing, a party had to have the legal right

of control over a child. In In re KKC the biological mother resided in

22 the home with the Petitioner and the child. There was no indication

she abdicated her parental rights and no evidence that all parental

responsibility was turned over to Petitioner. However, in the case at

bar, the parent and the managing conservator were absent and

Stephanie assumed the role of and responsibilities of a parent, whether

legally or constructively. Charles, who was gone from home the

majority of the time, was willing to give Stephanie all legal right to

make decisions for the child. The case at bar can be harmonized with

cases from the Beaumont court and with In re Kelso from the Fort

Worth court.

The Austin court reasoned that requiring a person seeking

standing under 102.003(a)(9) to have the ultimate legal right to control

a child requires reading words into the statute that are not there and

renders the word “actual” superfluous at best and meaningless at worst.

In a legal context, “actual” is used to distinguish between something

that exists in fact rather than as a function of legal implication. The

court noted that if the Legislature wanted to limit standing only to

those persons with the legal right to control a child, then it would have

omitted the word “actual” or added the word “legal.” The court

23 concluded that the Legislature used the word “actual” because it

intended to confer standing on a person who had actual care, control,

and possession of the child for at least six months and had developed

and maintained a relationship with the child, as distinguished from a

bare legal right of care control and possession. Jasek v. Tex. Dept. of

Family and Protective Services, 348 S.W.3d 523, 532-537 (Tex. App –

Austin 2011).

To establish standing, Jasek held that the party must show actual

control, meaning the actual power or authority to guide or manage the

child or the actual directing or restricting of the child without regard to

whether the party has the legal or constructive power or authority to do

so, and that actual control means the development and maintenance of

a relationship with a child by a nonparent involving the actual exercise

of guidance, governance, and direction similar to that typically

exercised by a parent with his or her child, Jasek v. Tex. Dept. of Family

and Protective Services, 348 S.W.3d 523, 532-537 (Tex. App – Austin

2011), see also In the Interest of ACFH and DABH 373, S.W.3d 148, 153

(Tex.App. San Antonio 2012) .

24 CONCLUSION

standing for those who have developed and maintained a relationship

with a child over time, T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex

App—San Antonio 1992), no writ; Jasek v. Tex. Dept. of Family and

Protective Services, 348 S.W.3d 523 (Tex. App – Austin 2011).

Contrary to the facts in the case In re Kelso, T.D.L. resided in the

home of Stephanie Smith for a period of 8 years and during that time

Stephanie made decisions regarding medical care and school

enrollment, provided discipline, nurtured the spiritual aspect of her life,

interfaced directly with her teachers, attended to her homework and

studies, provided for extra-curricular activities, and took care of all of

T.D.L.’s daily needs.

Consider that Relators who filed this action are the parent and

grandparent of T.D.L., yet neither of them knew the names of T.D.L.’s

teachers, had any contact with her teachers, had attended any of

T.D.L.’s basketball or softball games, had met her coach or had any

contact with him. When questioned by Judge Register about her desire

25 to visit Roberta, her grandmother, the child said she would be “a little

bit” unhappy if she had to spend one week-end a month with her.

(Transcript of Court’s Interview with T.D.L., Page 8, Lines 8-12).

T.D.L. further said that if she had to go to Roberta’s, she wanted

Stephanie to go with her. (Transcript of Court’s Interview with T.D.L.,

Page 8, Line 7). When Judge Register questioned the child about how

much time she wanted to stay with her father when he was home she

said she would go visit but she wanted to come home at night to stay

with Stephanie. When the judge asked her to consider the possibility

that her father might be home for 30 days, she replied that would be a

long time for her stay with him. After being asked by Judge Register

what would be the best arrangement for her to see her father when he

was home, her reply was “maybe a weekend.” (Transcript of Court’s

Interview with T.D.L., Page 13, Lines 6-16).

A nonparent must show actual control, meaning the actual power

or authority to guide or manage the child or the actual directing or

restricting of the child without regard to whether the party has the

legal or constructive power or authority to do so, for a nonparent such

as Stephanie Smith to have actual control means that she must have

26 developed and maintained a relationship with a T.D.L. involving the

actual exercise of guidance, governance, and direction similar to that

typically exercised by a parent with his or her child. The question as to

whether Stephanie met that burden is perhaps, best answered by Judge

Register in his ruling when he stated:

That is to say, Mr. Lankford, you relied on your wife to take

over the parental role of the mother of the child, and I think

in doing so you let her in the door.

27 PRAYER

For the reasons stated, Stephanie Smith, a real party in interest,

prays that the Court deny Relators’ Petition for Writ of Mandamus and

for such other and further relief as may be just.

Respectfully submitted,

DEATON LAW FIRM 103 East Denman Lufkin, Texas 75901 Telephone: (936) 637-7778 Fax: (936) 637-7784

By: /s/ Thomas W. Deaton Thomas W. Deaton State Bar No. 05703500 Carolyn Carter Bell State Bar No. 00787061 Attorneys for Real Party in Interest, Stephanie Smith

CERTIFICATION OF REVIEW

Pursuant to Texas Rule of Appellate Procedure 53.3(j), the undersigned counsel for real party in interest certified that he has reviewed this Response to Petition for Writ of Mandamus and concluded that every factual statement in the Petition is supported by competent evidence included in the Appendix, Record, and Supplemental Record.

/s/ Thomas W. Deaton Thomas W. Deaton 28 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(i)

This response was prepared in Century Schoolbook 14 pt. typeface using Microsoft Word 2010, and, in reliance on the word count of the computer program used to prepare the document, I certify that this response to petition for writ of mandamus contains 5020 words excluding those matters excluded by Texas Rule of Appellate Procedure 9.4(i)(1).

CERTIFICATE OF SERVICE

I certify that the foregoing response to petition for writ of mandamus was electronically filed with the Clerk of the Court using the electronic case filing system of the Court. I also certify that on June 26, 2015, a true and correct copy of the foregoing was served via e-service or e-mail on the following counsel of record and on Respondent.

Robert T. Cain, Jr. Alderman Cain & Neill, PLLC 122 East Lufkin Avenue Lufkin, Texas 75901 e-mail rcain@aldermancainlaw.com

Robert Alderman, Jr. Alderman Cain & Neill, PLLC 122 East Lufkin Avenue Lufkin, Texas 75901 e-mail balderman@aldermancainlaw.com

Counsel for Relator Charles Dwayne Lankford 29 Robert L. Flournoy Law Offices of Robert L. Flournoy P.O. Box 1546 Lufkin, Texas 75902-1546 e-mail bob@rlflournoylaw.com

Counsel for Relator Roberta Gresham

The Hon. Joe Lee Register Angelina County Court at Law Number One P.O. Box 908 Lufkin, Texas 75902-0908 e-mail lberry@angelinacounty.net

Respondent

30 SUPPLEMENTAL RECORD INDEX TO APPENDIX

Real Party in Interest has adopted the Cases and Statute filed in Relators’ Petition for Writ of Mandamus as noted on their Index of Appendix. Pursuant to TRAP §52.4(e) this Index of Appendix does not contain cases cited in this Response to Petition for Writ of Mandamus that are already contained in Relators’ index, only those cases not in Relators’ index are included.

In Re Fountain 433 S.W. 3d 1; 2012, Tex. App Lexis 1081

In the Interest of ACFH and DABH 373 S.W.3d 148, 153 (Tex.App. San

Antonio 2012)

Lee v. City of Houston 807 S.W.2d 290 (Tex. 1991) APPENDIX Page 1

IN RE TAMMY FOUNTAIN, Relator

NO. 01-12-00704-CV

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

433 S.W.3d 1; 2012 Tex. App. LEXIS 10801

December 28, 2012, Opinion Issued

PRIOR HISTORY: In re Fountain, 2011 Tex. App. Dean, presiding. LEXIS 3327 (Tex. App. Houston 1st Dist., May 2, 2011) Finding no abuse of discretion in the trial court's revocation of its prior suspension of commitment, we JUDGES: [**1] Panel consists of Justices Keyes, deny the petition. Massengale, and Brown. Justice Keyes, dissenting. Background OPINION BY: Michael Massengale This is the second time Fountain has sought relief in this court [**2] from the proceedings in a suit affecting OPINION her parental relationship with her adopted son. See In re Fountain, No. 01-11-00198-CV, 2011 Tex. App. LEXIS [*3] Original Proceeding on Petition for Writ of 3327, 2011 WL 1755550 (Tex. App.--Houston [1st Dist.] Habeas Corpus May 2, 2011, orig. proceeding) (opinion on rehearing). After we denied mandamus relief from the denial of a In this habeas corpus proceeding, relator Tammy motion to dismiss the underlying suit, Fountain agreed to Fountain challenges the legality of her confinement for the entry of an order which appointed her as sole violating an agreed order in a suit affecting the managing conservator and Kathy Katcher as a nonparent parent-child relationship.* Fountain stipulated that she possessory conservator. Among other things, the October violated the order, which resulted in findings of contempt 18, 2011 agreed order provided that within 30 days each and an order committing her to a 60-day jail sentence. party was to "permit the other conservator to obtain The commitment order was suspended, conditioned upon health-care information regarding the child" and Fountain's continuing compliance with court orders. authorize the disclosure of "protected health information Acting on a motion to revoke the suspension of to the other conservator." This order also required each commitment, the trial court subsequently found that party to notify the "other party, the court, and the state Fountain had committed further violations of the court's case registry" of any change in the party's contact orders, and it ordered that she be taken into custody in information, including current residence, phone number, accordance with the prior contempt order. and employer contact information. Fountain and Katcher were also required to provide notification of any intended * The underlying case is In the interest of S.F., a change in this residency and contact information "on or child, No. 2010-31997 in the 309th District Court before the 60th day before the intended change." If a of Harris County, Texas, the Honorable Sheri party did not know of the change in [**3] time to Page 2 433 S.W.3d 1, *3; 2012 Tex. App. LEXIS 10801, **3

provide the 60-day notice, then notice was required "on Katcher could visit the child for lunch, pick him up from or before the fifth day after the date that the party knows class, and attend school activities. Third, she argued that of the change." Fountain had violated the provision of the modification order requiring communication within 36 hours through Several months after the entry of the October 18 Our Family Wizard about changes to the scheduled agreed order, Katcher moved to enforce that order for possessory period with the child. Fountain's failure to comply. The trial court held two hearings on May 3 and May 11, 2012. The parties After a hearing, the trial court revoked the stipulated, and the court found, that Fountain violated the suspension of Fountain's commitment in an order dated October 18 order by failing to execute releases and July 31, 2012. The court found that Fountain had violated thereby failing to permit Katcher to obtain health-care the prior orders three times. First, she had failed to information regarding the child, as required by the agreed "provide the required notice" that she was moving on order. In an order dated May 24, 2012, Fountain was June 22 when she mailed notice of the move to Katcher found to be in contempt and ordered to be committed to on "June 18, 2012." Second, Fountain had failed to the Harris County Jail for a period of 60 days as inform the school by May 15 that Katcher had permission punishment. In the same order, the 60-day jail sentence to access the child there. Third, Fountain had failed to was suspended on the condition that she comply with the post information to Our Family Wizard as required. The October 18 agreed order and with additional provisions district court ordered that Fountain be committed in contained in a new modification order which, like the accordance with "the orders attached hereto as Exhibits contempt order, was also dated May 24, 2012. A, B, and C." A copy of the May 24 commitment order was attached as Exhibit A. On its second page, that order The May 24 modification order required, among provided that "punishment for the [**6] violation set out other provisions, that Fountain notify the child's schools above is assessed at confinement in the Harris County in writing that Katcher could have lunch with the child at Jail for a period of sixty (60) days." Fountain was taken [*4] school, attend school activities, and "receive [**4] into the custody of the jail on the same day. all school notices, including all email notices normally sent to parents." Fountain was required to provide this Fountain filed an original petition for writ of habeas notice to the child's current school by May 15, a date corpus seeking relief in this court, raising five issues. We which was four days after the May 11 hearing but nine ordered her released on bond pending our determination days before the May 24 order giving rise to this new of her petition. See TEX. R. APP. P. 52.10. obligation was actually entered. Additionally, the modification order obligated both parties to exchange a Analysis variety of information through an internet application A final order for possession of or access to a child called "Our Family Wizard." The parties were also may be enforced by means of a motion for enforcement required to promptly update this data, within 36 hours of as provided by chapter 157 of the Family Code. TEX. any change to any of the initially exchanged data or to FAM. CODE § 157.001(a) (West 2008). Such an order other specified scheduling matters, including but not may be enforced by contempt, as also provided by limited to the inability to exercise a period of possession chapter 157. Id. § 157.001(b). Chapter 157 specifies or knowledge that the child would not be attending a particular information that a motion for enforcement must previously scheduled extracurricular activity. provide "in ordinary and concise language," including Approximately one month later, Katcher moved to identification of "the provision of the order allegedly revoke the suspension of Fountain's commitment. violated and sought to be enforced," "the manner of the Katcher alleged multiple violations of the prior orders, respondent's alleged noncompliance," and "the relief three of which are relevant in this proceeding. First, she requested by the movant." Id. § 157.002(a). A motion to alleged that Fountain had failed to give her sufficient enforce the terms and conditions of access to a child must notice of changes to the child's residence when Fountain also include "the date, place, and, if applicable, the time notified her of a change of residence to Galveston County of [*5] each occasion of the respondent's failure [**7] effective [**5] three days later. Second, she alleged that to comply with the order." Id. § 157.002(c). Chapter 157 Fountain had not timely notified the child's school that sets forth detailed procedures for hearings on enforcement motions.1 Page 3 433 S.W.3d 1, *5; 2012 Tex. App. LEXIS 10801, **7

1 See TEX. FAM. CODE ANN. §§ 157.061-.168. copy of the motion and notice not later than the For example, upon the filing of a motion for 10th day before the date of the hearing."). enforcement requesting contempt, the trial court shall set the date, time, and place of the hearing In her petition, Fountain alleges numerous and order the respondent to personally appear and deficiencies and errors in the motion and order that respond to the motion. Id. § 157.061(a). The revoked the suspension of her commitment to jail. A respondent is entitled to receive personal service commitment order is subject to collateral attack in a of a copy of the motion and notice not later than habeas corpus proceeding. In re Henry, 154 S.W.3d 594, the 10th day before the date of the hearing. Id. § 596 (Tex. 2005); see TEX. GOV'T CODE ANN. § 22.221(d) 157.062(c). If a respondent who has been (West 2004) (granting the appellate courts the power to personally served with notice nevertheless fails to issue writs of habeas corpus). The purpose of the habeas appear at a hearing, the court may not hold the corpus proceeding is not to determine the guilt or respondent in contempt but may, on proper proof, innocence of the relator, but only to determine whether grant a default judgment for the relief sought and she has been unlawfully restrained. Ex parte Gordon, 584 issue a capias for the arrest of the respondent. Id. S.W.2d 686, 688 (Tex. 1979). We initially presume that § 157.066. the contempt order is valid. In re Turner, 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig. One potential outcome of a hearing on an proceeding). But the writ will issue if the trial court's enforcement motion requesting contempt findings and contempt order is beyond the court's power or the court sanctions is that the trial court "may place the respondent did not afford the relator due process of law. Id. (citing on community supervision and suspend commitment if Henry, 154 S.W.3d at 596). the court finds that the respondent is in contempt of court for failure or refusal to obey an order rendered as The relator bears the burden of showing that she is provided in this title." [**8] Id. § 157.165. Community entitled to relief. Id. In [**10] reviewing the record, we supervision under chapter 157 is subject to different do not weigh the proof; rather, we determine only if the procedures from those applicable to enforcement judgment is void because, for example, the relator has motions. The procedures governing community been confined without a proper [*6] hearing or with no supervision are detailed in a distinct subchapter. Under evidence of contempt to support her confinement. Ex that subchapter, a "party affected by the order may file a parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995); see verified motion alleging specifically that certain conduct TEX. GOV'T CODE ANN. § 22.221(d) (providing that courts of the respondent constitutes a violation of the terms and of appeals exercise jurisdiction over habeas corpus conditions of community supervision." Id. § 157.214. petitions "[c]oncurrently with the supreme court"). Unlike the procedures generally applicable to a motion to I. Punishment enforce, a prima facie showing of a violation of a condition of community supervision can result in the In her first issue, Fountain argues that the July 31 immediate arrest of the respondent, id. § 157.215, revocation order was void because it did not clearly state followed by a hearing on the motion to revoke the punishment imposed. She notes that the order, community supervision within three days.2 "After the including its three attachments, is 37 pages long, but that hearing, the court may continue, modify, or revoke the the text of the order itself does not specify the length of community supervision." Id. § 157.216(c). the jail sentence or identify which attachment contains the sentence. Fountain does acknowledge, however, that 2 Compare id. § 157.216(a) ("The court shall the May 24 contempt order was attached to the July 31 hold a hearing [on motion to revoke community revocation order and specified a 60-day jail sentence. supervision] without a jury not later than the third working day after the date the respondent is Fountain relies upon Family Code section arrested under Section 157.215.") with id. § 157.166(a)(4) for the proposition that "an enforcement 157.062(c) ("Notice of hearing on a motion for order must include 'the relief granted by the court.'" This enforcement of an existing order providing for . . . provision is contained within subchapter D of chapter 157 possession [**9] of or access to a child shall be relating generally to [**11] enforcement hearings and given to the respondent by personal service of a orders in suits affecting the parent-child relationship. See Page 4 433 S.W.3d 1, *6; 2012 Tex. App. LEXIS 10801, **11

TEX. FAM. CODE § 157.001(a) ("A motion for revoked the suspension of the previously entered 60-day enforcement as provided in this chapter may be filed to sentence. enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a The May 24 contempt order provided on its second final order."). Section 157.166 does specify certain page that "punishment for the violation set out above is contents which must be included in an enforcement order, assessed at confinement in the Harris County Jail for a including "the relief granted by the court." See id. § period of sixty (60) days." This clearly stated the 157.166(a)(4). But the provision is not part of subchapter punishment imposed, contrary to Fountain's assertion that E, which relates specifically to community supervision, it was hidden. "There is no particular form required of including proceedings to revoke community supervision. either the order of contempt or the commitment order, See id. §§ 157.211-.217. provided that their essential elements appear in a written document." Ex parte Snow, 677 S.W.2d 147, 149 (Tex. Although Fountain's legal challenges are directed at App.--Houston [1st Dist.] 1984, no writ). We overrule the July 31 revocation order, the actual enforcement order Fountain's first issue. at issue in this proceeding is the May 24 contempt order. Fountain does not complain that this order failed to II. Grounds for revocation of suspension identify "the relief granted by the court"--indeed, she In her four remaining issues, Fountain argues that concedes that it did. Her complaint, instead, is that the Katcher's motion for revocation and the trial court's July relief was not expressly stated in the July 31 revocation 31 revocation order fail to satisfy the procedural order, and that referencing the May 24 contempt order standards of Family Code chapter 157 in several respects. and attaching it to the July 31 revocation order was the In her second issue, she argues that the judgment of equivalent of not including it at [**12] all. As contempt cannot be enforced based on violations [**14] characterized by Fountain, "[h]iding this requirement [of of the May 24 modification order because the conditions a statement of 'the relief granted by the court'] is the of suspension in the May 24 contempt order mistakenly equivalent of not including it." reference the "Modification Order of May 25, 2012." In We disagree with the suggestion that the statement of her third issue, she argues that although Katcher's motion the relief granted by the court was "hidden" in any to revoke alleged that she violated the October 18 agreed relevant sense. Fountain relies on In re Levingston, 996 order by mailing a notice on June 19, 2012, the trial court S.W.2d 936, 938 (Tex. App.--Houston [14th Dist.] 1999, found that the violation was committed on June 18, 2012, no pet.), and Ex parte Waldrep, 783 S.W.2d 332, 333 and therefore is "not supported by the pleadings." The (Tex. App.--Houston [14th Dist.] 1990, orig. proceeding), fourth issue relates to the requirement in the May 24 for the proposition that "the purpose of the commitment contempt order that certain information be provided by order is to notify the offender of how she has violated its May 15--before that order was actually entered. And the provisions, to notify the sheriff so that he can carry out fifth issue complains of the specificity of the motion to enforcement, and to provide sufficient information for an revoke and the revocation order with respect to the adequate review." We do not question this principle. See, allegation and finding that Fountain interfered with e.g., In re Luebe, No. 01-09-00908-CV, 404 S.W.3d 589, Katcher's participation in school lunches by failing to 2010 Tex. App. LEXIS 2597, 2010 WL 1546961 (Tex. timely share information about the child's schedule on App.--Houston [1st Dist.] Apr. 2, 2010, no pet.); Turner, Our Family Wizard in violation of the court's orders. 177 S.W.3d at 289. However, Fountain provides no One misconception underlies each of these issues in argument about how she lacked adequate notice of the common. Fountain wrongly assumes that Katcher's sentence, what information is missing for law motion to revoke and the trial court's revocation order enforcement purposes, or how our review has been must satisfy all of the procedural safeguards for an impaired. To the contrary, the record is clear that enforcement motion under subchapter D of chapter Fountain was sentenced to a 60-day jail sentence in the [**15] 157, as if a separate allegation, finding, and May 24 [**13] contempt order, that the sentence was sentence for contempt of court were at issue. In other suspended on the condition of her future compliance with cases, these safeguards in fact have been applied under the court's orders, and that on July 31 the trial court found circumstances when a party has been found in contempt that such orders had been violated and accordingly [*7] and sentenced, the commitment has been suspended Page 5 433 S.W.3d 1, *7; 2012 Tex. App. LEXIS 10801, **15

subject to compliance with specified conditions, and then WL 5232147 (Tex. Crim. App. Oct. 24, 2012); see also In in further proceedings to revoke the suspension of re Butler, 45 S.W.3d 268, 272 (Tex. App.--Houston [1st commitment, a trial court made additional findings of Dist.] 2001, no pet.) ("Proceedings in contempt cases contempt and imposed a different punishment. In such should conform as nearly as practicable to those in circumstances, with new allegations of contempt and criminal cases."). In the case of an order revoking enhanced sanctions, the motion to revoke does not merely community supervision, proof of any one violation of the invoke a previously rendered judgment of contempt, but conditions of suspension is sufficient to support the the new motion instead functions as a separate revocation order. See In re Bourg, No. 01-07-00623-CV, enforcement motion for purposes of chapter 157. See, 2007 Tex. App. LEXIS 6977, 2007 WL 2446844 (Tex. e.g., In re Broussard, 112 S.W.3d 827, 831 (Tex. App.--Houston [1st Dist.] Aug. 27, 2007, no pet.) App.--Houston [14th Dist.] 2003, no pet.); Ex parte (holding proof of any one violation of an order revoking Bagwell, 754 S.W.2d 490, 493 (Tex. App.--Houston [14th suspension of commitment for contempt is sufficient to Dist.] 1988, no writ); Ex parte Durham, 708 S.W.2d 536, support revocation); In re B.C.C., 187 S.W.3d 721, 724 537 (Tex. App.--Dallas 1986, no writ). (Tex. App.--Tyler 2006, no pet.).

In this case, however, although Katcher alleged and Accordingly, we must deny relief if the revocation the trial court found that Fountain had violated the was justified on any basis, and in this case it was. After conditions of the suspension of her commitment, Katcher Fountain received notice of Katcher's [**18] motion to did not request and the trial court did not enter additional revoke and a hearing was held, the trial court found three [**16] findings of contempt. Instead, as anticipated by violations of Fountain's conditions of suspension of chapter 157 and particularly subchapter E pertaining to commitment. One of the violations related to Fountain's community supervision, the trial court merely enforced failure to comply with the trial court's order with respect the provisions of its own suspended commitment order, to timely informing Katcher of a planned change of and it revoked [*8] the suspension, resulting in the residential address. The October 18 agreed order imposition of the original sentence imposed for the provided, in relevant part: original, admitted episodes of contempt. Required Notices Fountain provides no argument or authority for us to apply subchapter D of chapter 157 and its detailed EACH PERSON WHO IS A PARTY procedures applicable to an original enforcement hearing TO THIS ORDER IS ORDERED TO to the separate circumstance of a proceeding merely to NOTIFY EACH OTHER PARTY, THE determine whether to revoke the suspension of a valid COURT, AND THE STATE CASE prior order of commitment for contempt, and we decline REGISTRY OF ANY CHANGE IN THE to do so. That approach would render ineffective the PARTY'S CURRENT RESIDENCE common practice of suspending contempt judgments ADDRESS . . . . THE PARTY IS contingent upon future compliance with court order. ORDERED TO GIVE NOTICE OF AN There is no reason to deprive trial courts of such INTENDED CHANGE IN ANY OF THE flexibility in the enforcement of their orders. A REQUIRED INFORMATION TO EACH heightened procedural standard is justified for contempt OTHER PARTY, THE COURT, AND proceedings in the first instance, especially when THE STATE CASE REGISTRY ON OR incarceration of the respondent is a potential result. But BEFORE THE 60TH DAY BEFORE once there has been a judgment of contempt, there is no THE INTENDED CHANGE. IF THE requirement that the same heightened measure [**17] of PARTY DOES NOT KNOW OR COULD process be provided in order to adjudicate an allegation NOT HAVE KNOWN OF THE that the conditions of a suspended judgment have been CHANGE IN SUFFICIENT TIME TO violated. Instead, like the analogous circumstance of an PROVIDE 60-DAY NOTICE, THE appeal from the revocation of probation in a criminal PARTY IS ORDERED TO GIVE proceeding, we review the trial court's ruling for an abuse NOTICE OF THE CHANGE ON OR of discretion. See, e.g., Bryant v. State, No. PD-0049-12, BEFORE THE FIFTH DAY AFTER THE 391 S.W.3d 86, 2012 Tex. Crim. App. LEXIS 1383, 2012 DATE THAT PARTY KNOWS OF THE Page 6 433 S.W.3d 1, *8; 2012 Tex. App. LEXIS 10801, **18

CHANGE. Fountain testified that she knew a move was possible as of June 14, but she did not know until June 16 that the THE DUTY TO FURNISH THIS move would actually occur. Other evidence at the hearing INFORMATION TO EACH OTHER cast serious doubts on that testimony. The child spent the PARTY, THE COURT, AND THE [*9] weekend of June 15-17 with Katcher. During that STATE CASE REGISTRY CONTINUES weekend, the child told Katcher that he had a "condo in AS LONG AS ANY PERSON, BY Galveston" with his own bathroom, that it had a pool VIRTUE OF THIS ORDER, IS UNDER where he had been swimming, and that he been to his AN OBLIGATION TO PAY CHILD new school. Fountain admitted that the child had learned SUPPORT [**19] OR ENTITLED TO all of this information prior to June 15. Additionally, on POSSESSION OF OR ACCESS TO A June 16 Fountain leased her Houston home to an CHILD. acquaintance. Nevertheless, Fountain insisted that she did not know about the intended move until June 16. FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO The burden of proof to justify the revocation of a PROVIDE EACH OTHER PARTY, THE suspension of commitment is a preponderance of the COURT, AND THE STATE CASE evidence, meaning that greater weight of the credible REGISTRY WITH THE CHANGE IN evidence which would create a reasonable belief that the THE REQUIRED INFORMATION MAY respondent violated a condition of the suspension of RESULT IN FURTHER LITIGATION commitment. Cf. Rickels v. State, 202 S.W.3d 759, TO ENFORCE THE ORDER, 763-64 (Tex. Crim. App. 2006) (describing burden of INCLUDING CONTEMPT OF COURT. proof to revoke probation). [**21] We review the A FINDING OF CONTEMPT MAY BE evidence in the light most favorable to the trial court's PUNISHED BY CONFINEMENT IN judgment. See Canseco v. State, 199 S.W.3d 437, 439 JAIL FOR UP TO SIX MONTHS, A (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). "The FINE OF UP TO $500 FOR EACH trial court is the exclusive judge of the credibility of the VIOLATION, AND A MONEY witnesses and must determine whether the allegations in JUDGMENT FOR PAYMENT OF the motion to revoke are sufficiently demonstrated." Id. ATTORNEY'S FEES AND COURT COSTS. As the exclusive judge of the credibility of the witnesses, the trial court obviously did not believe Notice shall be given to the other Fountain's testimony that she did not know of an intended party by delivering a copy of the notice to change of residential address prior to June 14. The the party by registered or certified mail, circumstantial evidence relating to the move, including return receipt requested. . . . the child's knowledge of details about the new residence and the arrangement of a tenant to lease Fountain's [*10] Houston home, supported a reasonable belief that In the July 31 revocation order, the trial court Fountain violated the agreed order's requirement that she specifically found that Fountain had violated this notify Katcher on or before the fifth day after she knew provision by failing to provide Katcher the "required of the intended change. notice" of her plan to move to Galveston County. This finding was supported by circumstantial evidence Fountain also contends that Katcher's motion to presented at the evidentiary hearing on the motion to revoke failed to provide her sufficient notification of this revoke. On June 18, 2012, Fountain sent a letter to alleged violation due to a variance in the date of her Katcher, informing her of a change of residential address. written notice as specified in the motion (June 19) and the Fountain would have violated the agreed order's date identified in the revocation order (June 18). This "Required Notices" provision if she knew of "an intended defect [**22] does not invalidate the revocation order. change" of residential address [**20] before June 13, or "It is well settled that allegations in a revocation motion more than five days before she actually provided notice need not be made with the same particularity of an of the move to Katcher. indictment although such allegations must be specific Page 7 433 S.W.3d 1, *10; 2012 Tex. App. LEXIS 10801, **22

enough to give the accused notice of alleged violation of that the commitment order is void and violates her law contrary to conditions of probation." Chacon v. State, constitutional due process rights. The majority first 558 S.W.2d 874, 876 (Tex. Crim. App. 1977) (quoted with addresses the trial court's order committing Fountain to approval in In re Zandi, 270 S.W.3d 76, 77 (Tex. 2008) jail and reaches its conclusion that she be returned to jail. (per curiam)). The motion to revoke adequately notified It fails to identify or address any of the five issues raised Fountain of the essential allegations against her, relating by Fountain until page eight [**24] of its opinion, to the timing of her written notice of the move to swiftly disposes of the first issue, and then lumps her Galveston. Her letter was dated June 16 but was actually other four issues together and disposes of those by mailed on June 18. The motion to revoke's reference to holding that the statutory and constitutional procedural the notice being mailed on June 19 did not deprive safeguards that apply to contempt proceedings do not Fountain of notice of the essential allegation about her apply to orders revoking the suspension of commitment. violation of the requirement of written notice. 1 The underlying case is In the interest of S.F., a Accordingly, we overrule Fountain's third issue child, No. 2010-31997, in the 309th District Court challenging the adequacy of the motion to revoke to of Harris County, Texas, the Honorable Sheri Y. provide her notice of the allegation that she violated the Dean, presiding. agreed order by providing untimely notice of an intended move. Because at least one of the grounds for revocation I agree with Fountain that the commitment order is was supported by the evidence, we need not address void under established Texas [*11] law and that, Fountain's [**23] remaining issues challenging the other therefore, her commitment to jail violates her two violations found by the trial court. constitutional right to due process of law. In its contempt order committing Fountain to jail, the trial court failed to Conclusion specify the manner in which Fountain had committed two of the three violations for which it found her in contempt. We conclude that Fountain has not shown that she For the remaining violation, the trial court found was illegally restrained by the trial court's order revoking Fountain in contempt for acts that occurred before the suspension of commitment and committing her to county court signed the order giving rise to Fountain's obligation. jail. We therefore deny Fountain's request for habeas The commitment order is, therefore, void. I would hold corpus relief. that the trial court abused its discretion in revoking its order suspending Fountain's commitment. I would grant Michael Massengale the petition for writ of habeas corpus, [**25] and I would order Fountain discharged. Justice Background DISSENT BY: Evelyn V. Keyes On October 18, 2011, the trial court signed an order DISSENT in which Tammy Fountain and Katherine Katcher agreed to their various rights and duties as conservators of a child. Among its numerous provisions, this order DISSENTING OPINION provided that, within thirty days after the signing of the I respectfully dissent. I deeply disagree with the order, each party was to "permit the other conservator to majority's characterization of the issues in this case, its obtain health-care information regarding the child" and to legal conclusions, and its disposition of this habeas authorize the disclosure of "protected health information corpus proceeding. to the other conservator" pursuant to federal health care law. The order also required each party to notify the The trial court found Tammy Fountain in contempt "other party, the court, and the state case registry of any for violating a court order in a suit affecting the change in the party's current residence," phone number, parent-child relationship, sentenced her to jail, and, in the employer contact information, and other similar same order, suspended her commitment.1 The court information. The party was required to provide subsequently revoked its earlier suspension order and notification of any intended change in this residency and committed Fountain to jail. In five issues, she contends contact information "on or before the 60th day before the Page 8 433 S.W.3d 1, *11; 2012 Tex. App. LEXIS 10801, **25

intended change." If the party did not know of the school notices. Third, Katcher alleged that Fountain had intended change in enough time to provide the sixty-day violated the provision of the May 24, 2012 modification notice, then the party was required to give notice "on or order requiring communication within thirty-six hours before the fifth day after the date that the party knows of through the Our Family Wizard website [**28] about the change." changes to the scheduled possessory period with the child. Fountain had allegedly told Katcher that the child Several months later, on May 24, [**26] 2012, the would not be available for Katcher's scheduled lunch visit trial court entered an order of contempt against Fountain on June 6, 2012, because the child would be absent from because the court found that she had violated the earlier school all week, but she then told Katcher on June 8, October 18, 2011 order by failing to execute the required 2012, that the child had only been absent on the day releases to allow Katcher to obtain the child's health-care scheduled for Katcher's visit. Fourth, Katcher accused information. Accordingly, the trial court ordered Fountain Fountain of not paying a $77 court cost. committed to Harris County Jail for sixty days. But in the same order, the court suspended Fountain's commitment On July 31, 2012, after a hearing, the trial court so long as she complied "with each and every provision revoked the suspension of Fountain's commitment ("the of the Agreed Order of October 18, 2011, and of the commitment order"). Using substantially the same Modification Order of May 25, 2012." To accompany wording as found in Katcher's motion to revoke, the court this order, the trial court prepared a modification order, found that Fountain had violated its prior orders three which imposed new duties and obligations on Fountain. times. First, she failed to "provide the required notice" The hearing on these orders was held on May 11, 2012, that she was moving on June 22, 2012, when she mailed but the orders were not signed and filed until May 24, notice of the move to Katcher on June 18, 2012. Second, 2012, thirteen days later. Fountain failed to inform the child's current school by May 15, 2012, that Katcher had permission to access the The May 24, 2012 modification order, among other child there. Third, Fountain failed to post information to provisions, required that Fountain notify the child's Our Family Wizard as required when she had told school, in writing with notice to the court, that Katcher Katcher that the child was unavailable for lunch with could have lunch with the child at school, pick the child Katcher on June 6, 2012. The district court ordered that up from school, attend school activities, and receive all Fountain [**29] be committed in accordance with "the school notices. Fountain was required to notify the child's orders attached hereto as Exhibits A, B, and C." A copy current school by May 15, 2012, four days [**27] after of the original May 24, 2012 contempt order the hearing on the new order, but nine days before the hand-labeled with an "A" followed the revocation order. trial court signed the new order giving rise to this On its second page, the attached contempt order provided obligation. Additionally, the May 24, 2012 modification that "punishment for the violation set out above is order obligated both parties to exchange contact assessed at confinement in the Harris County Jail for a information and schooling information and, within period of sixty (60) days." thirty-six hours of a change, to post any changes to periods for possession of the child through an Internet Fountain filed an original petition for writ of habeas program called "Our Family Wizard." corpus seeking relief in this Court, raising five issues. We ordered her released on bond pending our determination A month later, Katcher moved to revoke the of her request for relief. suspension of Fountain's commitment. She accused Fountain of four violations of the prior orders. First, she Contempt and Commitment Orders alleged that [*12] Fountain had failed to provide the required notice of changes to the child's residence when "Criminal contempt is punishment for past Fountain had notified her only on June 19, 2012, that disobedience to a court order that constitutes an affront to Fountain and the child would be moving to Galveston the dignity and authority of the court." In re Houston, 92 County three days later. Second, she alleged that S.W.3d 870, 876 n.2 (Tex. App.--Houston [14th Dist.] Fountain had not notified the child's school by May 15, 2002, orig. proceeding). Civil contempt is remedial and 2012, that Katcher could visit the child for lunch, pick coercive; release may be procured by compliance with him up from class, attend school activities, and receive the provisions of the court's order. Id. "Civil contempt proceedings are quasi-criminal in nature, and the Page 9 433 S.W.3d 1, *12; 2012 Tex. App. LEXIS 10801, **29

contemnor is entitled to procedural due process order for which throughout the proceedings." Id. at 876. Among the due enforcement was process rights accorded is the right to reasonable notice requested; [**30] of each allegedly contumacious act. Id. Due process requires "full and complete notification" of the (2) the acts or charges with a reasonable opportunity to meet them by omissions that are defense or explanation. Id. In addition, criminal contempt the subject of the requires proof beyond a reasonable doubt. Id.; see Ex order; parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). In (3) the manner order to support a judgment of contempt, the underlying of the respondent's decree must set forth the terms of compliance in "clear, noncompliance; and specific and unambiguous terms" so that the person charged with obeying the order will know exactly what (4) the relief duties and obligations are imposed on her. Chambers, granted by the 898 S.W.2d at 260; Houston, 92 S.W.3d at 877. The order court. of contempt may not be susceptible to more than one [*13] interpretation. Houston, 92 S.W.3d at 877. (b) If the order imposes "Due process requires a court, before imprisoning a incarceration or a fine for criminal person for violating an earlier order, to sign a written contempt, an enforcement order judgment or order of contempt and a written commitment must contain findings identifying, order." Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. setting out, or incorporating by 1997) (per curiam) (citing Ex parte Barnett, 600 S.W.2d reference the provisions of the 252, 256 (Tex. 1980)). The contempt order must clearly order for [**32] which state in what respect the court's earlier order has been enforcement was requested and the violated. Id.; see also Ex parte Edgerly, 441 S.W.2d 514, date of each occasion when the 516 (Tex. 1969) (order [**31] or other means of respondent's failure to comply with notification "must state when, how, and by what means the order was found to constitute the defendant has been guilty of the alleged contempt"). criminal contempt. Complementing this due process requirement, the Texas Family Code mandates that motions for enforcement and (c) If the enforcement order orders confining someone for violating a court's imposes incarceration for civil enforcement order must state "the manner of the contempt, the order must state the respondent's noncompliance." TEX. FAM. CODE ANN. §§ specific conditions on which the 157.002(a)(2), 157.166(a)(3) (Vernon 2008). Further, an respondent may be released from order imposing incarceration for criminal contempt must confinement. contain findings identifying "the date of each occasion when the respondent's failure to comply with the order TEX. FAM. CODE ANN. § 157.166 (Vernon 2008). was found to constitute criminal contempt."2 Id. § 157.166(b). Standard of Review of Commitment Order

2 Family Code section 157.166 provides: A commitment order is subject to collateral attack in a habeas corpus proceeding. In re Henry, 154 S.W.3d (a) An enforcement order must 594, 596 (Tex. 2005) (per curiam); see TEX. GOV'T CODE include: ANN. § 22.221(d) (granting appellate courts power to issue writs of habeas corpus). The purpose of the habeas (1) in ordinary corpus proceeding is not to determine the guilt or and concise innocence of the relator; rather, the purpose is only to language the determine whether she has been unlawfully restrained. Ex provisions of the parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). We Page 10 433 S.W.3d 1, *13; 2012 Tex. App. LEXIS 10801, **32

presume that the contempt order is valid. In re Turner, orders, the order does not state the manner of her 177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.] noncompliance. The order states: 2005, orig. proceeding). But we will issue the writ if the trial court's contempt order is void because it is beyond Violation 1. On June 18, 2012, the court's power or the court did not afford the relator respondent mailed to movant a notice that due process of law. [**33] Id. (citing Henry, 154 S.W.3d as of June 22, 2012, her residence and that at 596). of the child was changed to an address in Galveston County. This does not provide The relator bears the burden of showing that she is the required notice. entitled to relief. Id. In reviewing the record, we do not weigh the proof; rather, we determine only if the This violation was accompanied by a copy of the text of contempt order is void because, for example, the relator the October 18, 2011 agreed order that required the has been confined without a proper hearing or with no parties to inform each other of changes to the child's evidence of contempt to support her confinement. current address within sixty days or within [**35] five Chambers, 898 S.W.2d at 259-60. days of learning of a change of address if the party did not know of the change in enough time to meet the Validity of Commitment Order sixty-day requirement. For the other violation, the order states: Here, the trial court's order committed Fountain to Violation 4. Respondent has interfered jail as punishment for past violations of the court's May with movant's lunches with the child at 24, 2012 contempt order. Therefore, the commitment school by violation of the order [*14] order is an order of criminal contempt. See concerning posting information on Our Houston, 92 S.W.3d at 876 n.2. Family Wizard. Movant had scheduled In her petition, Fountain points out numerous lunch with the child at school for June 6, deficiencies and errors in the revocation motion and order 2012; respondent notified movant that the that committed her to jail for contempt. She argues that child would not be at school all that week. two of the contempt violations are improper because the Respondent changed this schedule, and commitment order does not state the manner in which she notified movant -- at lunch time on June 8, failed to comply with the prior court orders, as required 2012 -- that in fact he had been at school by due process and the Texas Family Code. See TEX. all that week, except for the Wednesday FAM. CODE ANN. § 157.166(a)(3); Shaklee, 939 S.W.2d at movant had scheduled. Respondent failed 145 ("The contempt order must clearly state in what to post this change timely, presumably to respect the court's earlier order has been violated.") prevent movant's being able to reschedule (citation [**34] omitted). Fountain argues that the and have lunch with the child a different remaining contempt violation is improper because the day of the week. trial court found that she violated a provision in the court's order that required compliance before the court This language is quoted verbatim from Katcher's motion even signed the order imposing that particular obligation. to revoke. Preceding the violation, the court's May 24, See Chambers, 898 S.W.2d at 262 (contemnor cannot be 2012 modification order is quoted, which required that held in contempt of court for actions that predate when each party promptly post: court's order is reduced to writing). b. knowledge that a child will not be attending a previously scheduled Because I find these arguments dispositive in extracurricular activity -- immediately, or determining that the commitment order is void, I would as soon as practicable under the not reach Fountain's other issues. circumstances; but no less [**36] than eight hours; . . . I. Deficiencies in the Revocation Motion and Order f. any other changes -- within While the commitment order states that Fountain thirty-six hours of the change. failed to comply with several provisions of prior court Page 11 433 S.W.3d 1, *14; 2012 Tex. App. LEXIS 10801, **36

These findings do not state the manner of Fountain's differ.") (emphasis in original) (citing Ex parte noncompliance. In the first violation, stating that MacCallum, 807 S.W.2d 729, 730 (Tex. 1991)). This is Fountain had failed to report that she was moving with fatal to the commitment order because Fountain lacked the child to Galveston County, the findings do not the requisite notification of how to purge her contempt mention how Fountain failed to notify Katcher. Did the and how she might avoid violating court orders in the court find that Fountain [*15] had known when she was future. See Shaklee, 939 S.W.2d at 145 (invalidating moving earlier, and so it found that she had failed to contempt order for failing to specify when contemnor notify Katcher within the five-day time limit imposed by violated earlier orders); Ex parte Blasingame, 748 S.W.2d the October 18, 2011 order? Or did the court find that 444, 446-47 (Tex. 1988) (invalidating contempt order Fountain had known she was planning to move much punishing couple for taking action that they reasonably earlier, and thus she failed to notify Katcher sixty days interpreted as not violating prior orders). before the move as the October 18, 2011 order required? The majority states that Fountain "wrongly assumes In the other violation, noting that Fountain had failed that Katcher's motion to revoke and the trial court's to update the Our Family Wizard program on the week revocation order must satisfy all of the procedural Katcher attempted to visit the child at lunch, the findings safeguards for an enforcement motion under [Family again fail to state how Fountain had violated the May 24, Code] chapter 157, as if a separate allegation, finding, 2012 modification order. Did she violate the modification and sentence for contempt of court were at issue." Slip order when she reported to Katcher that the child would Op. at 12. The majority then cites several cases for the be gone from school all week but then two days later proposition [**39] that a motion to revoke the reported he had been in school some days that week? The suspension of commitment actually "functions as a earlier order did not require [**37] her never to change separate enforcement motion," and is therefore subject to the child's itinerary, only to report changes to the Family chapter 157's procedural requirements, including section Wizard program. So, did Fountain fail to update the 157.166's requirement that the contempt order program at all? Or did she fail to update the program specifically state the manner of the contemnor's within the thirty-six hour time limit? For both violations, noncompliance with a previous court order, when the trial on what date did Fountain fail to comply with the court, in a revocation proceeding, makes additional previous orders? See id. (requiring order to identify date contempt findings and imposes a different punishment. of each violation found to constitute contempt). The face Slip Op. at 12-13. [*16] The majority concludes that of the commitment order does not answer these these cases are distinguishable and that chapter 157's questions. procedural requirements are inapplicable, because, here, when the trial court revoked the suspension of Fountain's The commitment order is insufficient because these commitment it "did not enter additional findings of findings of violations of prior orders are unclear. See contempt," but instead it imposed the "original sentence" Houston, 92 S.W.3d at 877. The contempt order must for the "original, admitted episodes of contempt." Slip spell out exactly what duties and obligations are imposed Op. at 13. and what the contemnor can do to purge the contempt. Id. (citing Ex parte Proctor, 398 S.W.2d 917, 918 (Tex. The majority justifies its holding by stating, 1966)). Generally, in the contempt context, the order or motion must be clear and unambiguous, which means the In other cases, these [procedural] order or motion must be capable of only one reasonable safeguards in fact have been applied under interpretation. Chambers, 898 S.W.2d at 260. Although circumstances when a party has been the revocation motion and the subsequent commitment found in contempt and sentenced, the order listed dates and described Fountain's actions, these commitment has been suspended subject documents are amenable to multiple reasonable to compliance with specified conditions, interpretations as to how or [**38] even whether and then in further proceedings to revoke Fountain had violated the earlier orders. See id. ("A court the suspension of commitment a trial order is insufficient to support a judgment of contempt [**40] court made additional findings of only if its interpretation requires inferences or contempt and imposed a different conclusions about which reasonable persons might punishment. In such circumstances, with Page 12 433 S.W.3d 1, *16; 2012 Tex. App. LEXIS 10801, **40

new allegations of contempt and enhanced order by failing to notify the child's school of Katcher's sanctions, the motion to revoke does not access and by failing to timely update Our Family merely invoke a previously rendered Wizard. The commitment order thus identified additional judgment of contempt, but the new motion violations of ongoing obligations without specifying how instead functions as a separate Fountain failed to comply with these obligations and enforcement motion for purposes of imposed a greater punishment than the original contempt chapter 157. order. See Houston, 92 S.W.3d at [*17] 877 (contempt order must spell out duties and obligations imposed and Slip Op. at 12. The majority reasons that because Katcher what contemnor can do to purge contempt). Thus, the "did not request and the trial court did not enter commitment order was not clear and unambiguous, as additional findings of contempt," but "merely enforced required for a holding of contempt. See Chambers, 898 the provisions of its own suspended commitment order," S.W.2d at 260. "subchapter D of chapter 157 and its detailed procedures applicable to an original enforcement hearing" do not I would conclude that the commitment order is apply. Slip op. at 13. The majority cites no authority for functionally equivalent to an original enforcement order, its holding. Rather, it refuses to follow established and, therefore, Family Code chapter 157's procedural authority on allegedly distinguishable factual grounds. I, safeguards, including section 157.166(a)'s requirement therefore, take the majority to be making its own law that the enforcement order state the manner of the without authority and in conflict with established law. contemnor's noncompliance, apply equally to this proceeding. See Ex parte Durham, 708 S.W.2d 536, I [**41] disagree that the procedural safeguards 537-38 (Tex. App.--Dallas 1986, orig. proceeding) applicable to enforcement motions and orders are not [**43] ("The purpose of this commitment order is to applicable here. And I disagree that there are material enforce the punishment provisions imposed by the factual distinctions between this case and the prior cases original order holding relator in contempt. Consequently, in which the law has been established. we hold that this commitment order is an 'enforcement order' under [the predecessor to section 157.166]."); see The original May 24, 2012 contempt order found also Houston, 92 S.W.3d at 876 (holding that civil Fountain in contempt for violating the provision of the contempt proceedings are quasi-criminal, entitling October 18, 2011 agreed order requiring her to execute contemnor to procedural due process "throughout the all necessary releases to permit Katcher to obtain proceedings"). I would hold that procedural statutory and health-care information concerning the child. The court constitutional due process safeguards were violated in ordered Fountain confined for sixty days in the Harris this case. See TEX. FAM. CODE ANN. § 157.166(a)(3); County Jail and ordered her to pay $5,000 to Katcher in Shaklee, 939 S.W.2d at 145; Houston, 92 S.W.3d at attorney's fees, but the court then suspended the 875-77. Therefore, the commitment order is void. See commitment pursuant to Fountain's compliance with the Houston, 92 S.W.3d at 875-77. October 18, 2011 agreed order and the May 24, 2012 modification order. In the commitment order, which II. Confinement for Violating Court's Command Before revoked the suspension of Fountain's commitment, the Court Issued Order Imposing Obligation court ordered that Fountain be confined for sixty days in the Harris County Jail, that Fountain pay $5,000 to Even if the trial court had clearly stated the manner Katcher, as ordered in the May 24, 2012 contempt order, of Fountain's noncompliance in the commitment order, and that Fountain pay, "in addition to the attorney's fees the order would still be void for finding Fountain in and costs assessed in the order suspending commitment contempt of court for violating the court's May 24, 2012 signed on May 24, 2012," an additional $4,379 [**42] in order on a date predating the date on which the court attorney's fees and costs to Katcher's attorney. actually signed that order. See Chambers, 898 S.W.2d at 262 ("A contemnor cannot be held in constructive The court also found that Fountain violated the contempt of court [**44] for actions taken prior to the October 18, 2011 agreed order by not "provid[ing] the time that the court's order is reduced to writing."). It is required notice" that she and the child were moving to the written order, signed by the court, that evinces a Galveston County and the May 24, 2012 modification party's rights and duties, not oral admonitions at the Page 13 433 S.W.3d 1, *17; 2012 Tex. App. LEXIS 10801, **44

hearing. In re Sellers, 982 S.W.2d 85, 87 (Tex. (holding same). [*18] The commitment of a person to App.--Houston [1st Dist.] 1998, orig. proceeding) (citing jail on a void order violates constitutional due process. Ex parte Price, 741 S.W.2d 366, 367 (Tex. 1987)). See Gordon, 584 S.W.2d at 688 ("Where the judgment ordering confinement is 'void,' the confinement is illegal The second violation in the contempt order was for and the relator is entitled to discharge."); In re Alexander, Fountain's failure to inform the child's school about 243 S.W.3d 822, 827 (Tex. App.--San Antonio 2007, orig. Katcher's rights of access to the child by May 15, 2012. proceeding) ("A writ of habeas corpus will issue when The underlying order giving rise to this obligation, the relator has not been afforded due process, or when the however, was signed on May 24, 2012, nine days after order requiring confinement is void."). the date on which Fountain allegedly violated the order. Under Texas law, this invalidates the commitment order. 3 Because none of the three acts in the See Chambers, 898 S.W.2d at 262; Sellers, 982 S.W.2d at commitment order will support a finding of 87; see also Dunn v. Street, 938 S.W.2d 33, 35 n.3 (Tex. contempt, I would not reach Fountain's other 1997) (per curiam) (voiding contempt judgment because issues. contemnor "did not violate a written order of the trial court"). Conclusion

The trial court assessed a punishment of sixty days' I would hold that the trial court abused its discretion confinement and required the payment of attorney's fees in revoking its order suspending Fountain's commitment for all of the contumacious acts it found. This means that to jail and that the commitment order is void. even if only one of the violation findings was invalid, the Accordingly, I would grant the petition for writ of habeas entire [**45] order would be void.3 Ex parte Davila, 718 corpus, and I would order Fountain [**46] released from S.W.2d 281, 282 (Tex. 1986) (per curiam) ("If one her bond and discharged. punishment is assessed for multiple acts of contempt, and Evelyn V. Keyes one of those acts is not punishable by contempt, the entire judgment is void"); Ex parte Sealy, 870 S.W.2d 663, 667 Justice (Tex. App.--Houston [1st Dist.] 1994, orig. proceeding) Page 1

IN THE INTEREST OF A.C.F.H., and D.A.B.H., Children

No. 04-11-00322-CV

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

373 S.W.3d 148; 2012 Tex. App. LEXIS 1769

March 7, 2012, Delivered March 7, 2012, Filed

SUBSEQUENT HISTORY: Released for Publication Tunc Order in Suit Affecting Parent-Child Relationship. July 19, 2012. The order was entered after the parties entered into a Mediated Settlement Agreement. The appellant, PRIOR HISTORY: [**1] "Margaret," is the biological mother of the two children From the 150th Judicial District Court, Bexar County, who are the subject of the order. Appellee, "Michael," is Texas. Trial Court No. 2009-CI-06175. Honorable the step-father of both children. In the order, the trial Barbara Hanson Nellermoe, Judge Presiding. court appointed Michael and Margaret as joint managing In the Interest of A.C.F.H., 2011 Tex. App. LEXIS 5504 conservators of the children. In a single issue on appeal, (Tex. App. San Antonio, July 20, 2011) Margaret asserts the trial court lacked subject-matter jurisdiction to enter [*150] the order because Michael DISPOSITION: AFFIRMED. lacked standing to file an original suit [**2] affecting the parent-child relationship. We disagree and affirm.

COUNSEL: For APPELLANT: Cristina T. De Leon, ANALYSIS Law Offices of Cristina T. De Leon, San Antonio, TX. Although Margaret did not challenge Michael's For APPELLEE: Gilbert Vara, Jr., The Law Office of standing before the trial court, standing is implicit in the Gilbert Vara, Jr., San Antonio, TX; Ryan C. Moe, The concept of subject-matter jurisdiction and, therefore, is a Law Office of Ryan C. Moe, P.L.L.C., San Antonio, TX. threshold issue that we may address for the first time on appeal. In re Vogel, 261 S.W.3d 917, 920 (Tex. JUDGES: Opinion by: Sandee Bryan Marion, Justice. App.--Houston [14th Dist.] 2008, orig. proceeding); In re Sitting: Catherine Stone, Chief Justice, Sandee Bryan SSJ-J, 153 S.W.3d 132, 134 (Tex. App.--San Antonio Marion, Justice, Steven C. Hilbig, Justice. 2004, no pet.). In a suit affecting the parent-child relationship, standing is governed by the Texas Family OPINION BY: Sandee Bryan Marion Code, and the party seeking relief must allege and establish standing within the parameters of the language OPINION used in the statute. In re H.G., 267 S.W.3d 120, 124 (Tex. App.--San Antonio 2008, pet. denied). Standing cannot be [*149] AFFIRMED conferred by consent or waiver and may be raised for the first time on appeal. In re A.M.S., 277 S.W.3d 92, 95 (Tex. This is an appeal from an April 7, 2011 Nunc Pro App.--Texarkana 2009, no pet.). Page 2 373 S.W.3d 148, *150; 2012 Tex. App. LEXIS 1769, **2

The Texas Family Code section applicable here still on-going. As discussed further below, [*151] our provides that "[a]n original suit may be filed at any time review of the record indicates evidence exists to support by . . . a person, other than a foster parent, who has had this contention. actual care, control, and possession of the child for at least six months ending not more than 90 days preceding Pursuant [**5] to an October 14, 2004 "Child Safety [**3] the date of the filing of the petition . . . ." TEX. Evaluation and Plan," Margaret agreed "to voluntarily FAM. CODE ANN. § 102.003(a)(9) (West 2008). The place the children with the father [Michael]." The plan purpose of section 102.003(a)(9) is to create standing for stated November 14, 2004 as its end date. On October 19, those who have developed and maintained a relationship 2004, Michael filed a petition in suit affecting the with a child over time. T.W.E. v. K.M.E., 828 S.W.2d 806, parent-child relationship in trial cause number 808 (Tex. App.--San Antonio 1992, no writ) (examining 2004-CI-15869 in Bexar County. On November 2, 2004, former Family Code section 11.03(a)(8)). the trial court entered "Temporary Orders in Suit Affecting the Parent-Child Relationship" ("the 2004 Margaret asserts Michael failed to plead or prove temporary orders"). Pursuant to these orders, Michael with any specificity the statutory time period, and she was appointed temporary sole managing conservator and contends Michael failed to plead that he had "actual Margaret was appointed temporary possessory control" over the two children. Margaret also asserts conservator of both children. Michael had the following Michael failed to show he had the legal or constructive "rights and duties" under the orders: authority to guide or manage the children. 1. the right to have physical possession We review de novo a challenge to a party's standing. and to direct the moral and religious Tex. DOT v. City of Sunset Valley, 146 S.W.3d 637, 646 training of the children; (Tex. 2004). Ordinarily, a petitioner must allege facts that 2. the duty of care, control, protection, affirmatively demonstrate the court's jurisdiction to hear and reasonable discipline of the children; the cause. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 3. the duty to provide the children with S.W.2d 440, 446 (Tex. 1993). When, as here, standing is clothing, food, shelter, education, and challenged for the first time on appeal, there is no medical, psychological, and dental care; opportunity to cure a pleading defect. Id. "Therefore, 4. the right to consent for the children to when a Texas appellate court reviews the standing of a medical, psychiatric, dental, and surgical party [for the first [**4] time on appeal], it must construe treatment and to have access to the the petition in favor of the party, and if necessary, review children's medical records; the entire record to determine if any evidence supports 5. the right to receive and give receipt standing." Id. Accordingly, we construe Michael's [**6] for payments for the support of the petition in his favor and we look to the entire record to children and to hold or disburse funds for determine whether any evidence supports his standing to the benefit of the children; bring his petition. 6. except as otherwise provided by the Texas Family Code, the right to the Section 102.003 requires that the petitioner have had services and earnings of the children; actual care, control, and possession of the child "for at 7. the right to consent to marriage and to least six months ending not more than 90 days preceding enlistment in the armed forces of the the date of the filing of the petition." TEX. FAM. CODE § United States; 102.003(a)(9). In his original petition and his amended 8. the right to represent the children in petition, Michael alleged he had standing "to bring this legal action and to make other decisions of suit in that the children have resided with him and have substantial legal significance concerning been in his care, custody and control for more than six the children; months." On appeal, Michael explains he did not allege 9. except when a guardian of the "for at least six months ending not more than 90 days children's estates or a guardian or attorney preceding the date of the filing of the petition" because, at ad litem has been appointed for the the time he filed the petition, his actual care, control, and children, the right to act as an agent of the possession of the children had not ended and was, in fact, children in relation to the children's estates Page 3 373 S.W.3d 148, *151; 2012 Tex. App. LEXIS 1769, **6

if the children's action is required by a established the contrary because the mother had refused state, the United States, or a foreign to give the petitioner, the non-parent who lived with the government; and mother and her child, legal rights concerning the child 10. the right to designate the primary when he expressed an interest in adopting the child. Id. at residence of the children and to make 792. The court concluded the petitioner lacked standing decisions regarding the children's because, until he obtained the temporary orders at issue in education. the appeal, he had no legal right of control over the child and no authority to make decisions on behalf of the child. Margaret, on the other hand, was given limited visitation Id. at 793. The Fort Worth Court of Appeals has held the with the children and limited authority over the children petitioners, the paternal grandparents, lacked standing during her periods of possession. because the respondent-mother [**9] did not voluntarily relinquish permanent care, control, and possession of The temporary orders were to continue in effect until child for the six months preceding the petitioners filing the signing of a final order or further order of the court. suit because the respondent-mother controlled where the The record does not contain any final orders; however, child would stay and for how long and the petitioners did the [**7] docket sheet indicates the 2004 case was not have such control; and there was no evidence the dismissed for want of prosecution on January 30, 2007. respondent-mother intended her child to stay with the Less than two months later, the trial court considered petitioners for any extended periods of time. See In re Michael's motion to reinstate the case on the docket and Kelso, 266 S.W.3d 586, 590-91 (Tex. App.--Fort Worth signed an order of reinstatement on March 6, 2007, which 2008, no pet.). On the other hand, the Austin Court of specifically stated the case was reinstated "to the same Appeals did not agree that "actual control" hinged on effect as if it had never been dismissed." The docket whether a petitioner possesses legal authority. Jasek v. indicates the case was again dismissed for want of Tex. Dep't of Family and Protective Servs., 348 S.W.3d prosecution on April 8, 2009. One day later, Michael 523, 532 (Tex. App.--Austin 2011, no pet.). In that case, filed the underlying original suit affecting the DFPS sought to terminate the parental rights of both parent-child relationship that is the subject of this appeal. biological parents and had placed the children with the Nothing in the record indicates Michael's duties under the Jaseks with the intention that the children stay with the 2004 temporary orders changed between the date the Jaseks permanently. The children were later removed orders were entered in 2004 and the date Michael filed from their home after one of the Jaseks tested positive for his new petition on April 9, 2009. In fact, various medical marijuana. The Jaseks then intervened in the suit and school records indicate Michael sought medical affecting the parent-child relationship and DFPS moved attention as needed for the children and was involved to strike their intervention on the grounds they lacked with their schooling. The record also contains a "Consent standing. The trial court [**10] concluded the Jaseks to [*152] Name Change" form signed by each child, lacked standing. dated November 2, 2009, in which each child identifies Michael as "the man who raised me and who I consider On appeal, DFPS argued the Jaseks could not my father . . . ." establish that they had "actual control" over the children because, at all relevant times, DFPS had sole legal We are aware there is some disagreement among the control over the children. Id. at 531. DFPS did not courts [**8] of appeals over what constitutes "actual dispute the Jaseks had "actual care" and "actual control." The Beaumont Court of Appeals has held that possession" of the children for the requisite time period. "'control' must mean something more than the control Instead, DFPS argued the Jaseks could not have had implicit in having care and possession of the child if the "actual control" during that time because that required word is to be given effect and treated as more than having the "authority to make legal decisions, decisions surplusage. The word must be understood in the context of legal significance and including the responsibilities of of the rights, duties, and responsibilities of a parent." In a legal parent." DFPS insisted that only DFPS had "actual re K.C.C., 292 S.W.3d 788, 792-93 (Tex. App.--Beaumont control" over the children because it was vested with the 2009, no pet.). The court found it significant that there ultimate legal authority to make decisions for the was no evidence the mother ever agreed to relinquish children, including the discretion to remove them from legal rights concerning the child, and in fact, the evidence the Jaseks' home at any time. Id. at 532. The court of Page 4 373 S.W.3d 148, *152; 2012 Tex. App. LEXIS 1769, **10

appeals disagreed that "actual control" under section that child's parent for a period in excess of six months."). 102.003(a)(9) hinged on whether a caregiver possesses this sort of legal authority. In her [**12] brief on appeal, Margaret alleges Michael failed to show he had actual control, "meaning The Austin court noted that the term "actual" the actual power or authority to guide or manage" the indicates "something that exists in [*153] fact, as children. During oral arguments before this court, opposed to something that is a function of legal duties or Margaret invited this court to follow the cases that imputation" and "control" "means the 'power or authority require a showing that the parent has abdicated actual to [**11] guide or manage: directing or restraining control of the children in order for the non-parent to show domination.'" Id. at 533. The court concluded "'actual . . . standing. We decline the invitation for two reasons. First, control . . . of the child,' as used in section 102.003(a)(9), as this court has previously held, the purpose of section means the actual power or authority to guide or manage 102.003(a)(9) is to create standing for those who have or the actual directing or restricting of the child, as developed and maintained a relationship with a child over opposed to legal or constructive power or authority to time. See T.W.E, 828 S.W.2d at 808. Second, under any guide or manage the child." Id. The court concluded these of the standards set forth by our sister courts, we words reflected "the Legislature's intent to create conclude Michael has standing because the record standing for those who have, over time, developed and indicates that as of the date he filed the underlying maintained a relationship with a child entailing the actual petition, he had not only the actual power and authority to exercise of guidance, governance and direction similar to guide or manage the children, he also had the legal power that typically exercised by parents with their children." and authority to do so. Therefore, the record contains Id.; see also In re K.K.C., 292 S.W.3d at 795 (McKeithen, evidence that supports his standing to bring his petition. C.J., dissenting) ("Nothing in the plain language of the statute necessitates the 'relinquishment' or 'abdication' by CONCLUSION the biological parent of her parental rights, duties or For the reasons stated above, we affirm the trial responsibilities. There is no exclusivity requirement in court's order. the statute's plain language. . . . There is, however, a rational basis for conferring standing on a person who Sandee Bryan Marion, Justice shares actual care, control, and possession of a child with Page 1

RICHARD W. LEE, ET AL., Petitioner, v. THE CITY OF HOUSTON, ET AL., Respondent

No. C-8285

SUPREME COURT OF TEXAS

807 S.W.2d 290; 1991 Tex. LEXIS 23; 34 Tex. Sup. J. 408

March 6, 1991, Delivered

SUBSEQUENT HISTORY: [**1] Dissenting relief, and rendered a take-nothing judgment against the Opinion Dated April 24, 1991. police officers. 762 S.W.2d at 180. In so ruling, the court Rehearing overruled by, 04/24/1991 of appeals held that the Act applies only to positions Writ of mandamus granted Lee v. Downey, 842 S.W.2d requiring the performance of law enforcement duties. Id. 646, 1992 Tex. LEXIS 110 (Tex., 1992) at 186-87. Because we disagree with that construction of the Act, we reverse the judgment of the court of appeals PRIOR HISTORY: From Harris County; First and remand the cause to the trial court for entry of District. judgment in accordance with this opinion. City of Houston v. Lee, 762 S.W.2d 180, 1988 Tex. App. LEXIS 2537 (Tex. App. Houston 1st Dist., 1988) 1 Act of June 2, 1947, 50th Leg., R.S., ch. 325, 1947 Tex. Gen. Laws 550, as amended, repealed by Act of May 1, 1987, ch. 149, § 49(1), 1987 JUDGES: Oscar H. Mauzy, Justice. Dissenting opinion Tex. Gen. Laws 1306. The actions giving rise to by Justice Raul A. Gonzalez joined by Justice Cornyn. this suit took place prior to codification, and are therefore governed by article 1269m. However, OPINION BY: MAUZY because codification entails no substantive change, see Tex. Loc. Gov't Ann. § 1.001, this OPINION opinion refers to the codified version of the statute, except where otherwise noted.

[*291] OPINION [**2] The actions challenged in this suit reflect the City of Houston's ongoing effort to "civilianize" the This cause requires us to examine the scope of the Houston Police Department (HPD). The court of appeals Fire Fighters' and Police Officers' Civil Service Act, opinion sets out the pertinent aspects of that effort. In formerly Tex. Rev. Civ. Stat. Ann. art. 1269m, 1 now short, the City placed unclassified civilians in managerial codified at sections 143.001-143.134 of the Texas Local positions traditionally held by classified police officers. Government Code ("the Act"). Petitioners, officers in the Petitioners allege that those placements contravened the Houston Police Department, assert that the Act entitles Act. them to promotion with back pay, in addition to declaratory and injunctive relief. The court of appeals The purpose of the Act, as stated in section 143.001, reversed the trial court's judgment granting the requested is "to secure efficient fire and police departments Page 2 807 S.W.2d 290, *291; 1991 Tex. LEXIS 23, **2; 34 Tex. Sup. J. 408

composed of capable personnel who are free from In the years since 1957, a number of courts have political influence and who have permanent employment addressed questions regarding the coverage of the Act. tenure as public servants." To that end, the Act requires Almost all of those cases, however, have involved the city council, or other legislative body, to provide by individuals employed prior to 1957, who automatically ordinance for the classification of all fire fighters and maintained their civil service status after the amendment. police officers; that is, to place all such officers within See, e.g., City of San Antonio v. Carr, 161 Tex. 155, 338 the protection of a civil service system. Section 143.021. S.W.2d 122, 124 (Tex. 1960); Clack v. City of San The proper boundaries of that system, however, are Antonio, 452 S.W.2d 502, 503 (Tex. Civ. App. -- San unclear. Antonio 1970, writ ref'd n.r.e.).

In its original form, the Act defined "policeman" as One prior court has probed the impact of the 1957 amendment. In City of Wichita Falls v. Harris, 532 any member of a Police Department who draws S.W.2d 653 (Tex. Civ. App. -- Fort Worth 1975, writ ref'd compensation for his services as a member of said n.r.e.), the City had hired a "fire training specialist" [**5] department.Tex. Rev. Civ. Stat. Ann. art. 1269m, § 2, Act without following the procedures set out in the Act for of June 2, 1947, 50th [**3] Leg., R.S., ch. 325, 1947 the hiring of classified officers. Eight members of the fire Tex. Gen. Laws 550, 551. Applying that definition, department then brought suit to void the city's courts uniformly rejected attempts to remove any police appointment. The trial court found that the new position department positions from civil service protection; all fell within the coverage of the Act. In reviewing that employees were protected by the Act. See City of San finding, the court of civil appeals noted the fundamental Antonio v. Handley, 308 S.W.2d 608, 610 (Tex. Civ. App. circularity of the Act's terms: -- San Antonio 1957, writ ref'd), and cases cited therein. If the Act is construed strictly it would mean that the With a 1957 amendment, however, the Act's City could employ new firemen who would not be under definition of "policeman" became less clear, Civil Service by simply not giving them an examination. encompassing The City acknowledges that this is obviously not the intent of the legislature.Id. at 657. To avoid defeating the any member of the Police Department appointed to intent of the legislature, the court construed the Act as a such position in substantial [*292] compliance with the whole. Looking to the job description for the new provisions of Sections 9, 10, and 11 of this Act . . . position, the court observed that "a person holding the position must have knowledge of the principles and Act of June 6, 1957, 55th Leg., R.S., ch. 391, § 1, practices of fire prevention and suppression." Id. at 656. 1957 Tex. Gen. Laws 1171. 2 Sections 9, 10, and 11 of On that basis, the court affirmed the trial court's finding article 1269m required competitive examinations for that the position was within the ambit of the Act. appointment to positions in the police department. The codified version of that language, located at section The court of appeals in the present case took a 143.003(5) of the Local Government Code, provides different approach. While noting that the Act should be simply that a "police officer" is one who was appointed in viewed as a whole, the court placed special [**6] substantial compliance with chapter 143 of the code. reliance on the predecessor to section 143.023(e), which Thus, since 1957, the Act's most important definition has now provides: been circular. Section 143.003(5) states, in essence, that the Act covers [**4] whomever the Act covers. An applicant may not be certified as eligible for a beginning position with a police department unless the 2 In 1985, the legislature changed the definition applicant meets all legal requirements necessary to again by adding a reference to officers in become eligible for future licensing by the Commission specialized police forces, and by adding the words on Law Enforcement Officer Standards and Education. "or other peace officer" after the word "Department." Act of June 16, 1985, 69th Leg., The only positions that require law enforcement R.S., ch. 958, § 21, 1985 Tex. Gen. Laws 3227, training, the court reasoned, are those that involve 3241 (discussed infra at 5-6). traditional law enforcement duties. Thus, the court concluded that the Act encompasses only those Page 3 807 S.W.2d 290, *292; 1991 Tex. LEXIS 23, **6; 34 Tex. Sup. J. 408

employees who actually do "police work;" that is, those police officers can hold managerial positions, the who enforce the law, make arrests, and conduct criminal argument goes, then the HPD will be unable to utilize the investigations. We disagree. talents of civilians. The premise of that argument is invalid. Section 143.023(e) does not require that all Nothing in either the language or the history of applicants be licensed police officers. Rather, that section section 143.023(e) evinces a legislative intent to limit the requires, by its terms, that applicants meet the coverage of the Act. The legislature adopted that requirements necessary to become eligible for future provision in 1985, almost forty years after it originally licensure. Any civilian meeting those requirements may passed the Act. Tex. H.B. 1657, [*293] Act of May 26, apply for a beginning position; and once hired, that 1985, ch. 910, § 4, 69th Leg., R.S., 1985 Tex. Gen. Laws individual may become eligible for promotional 3046, 3047. If, in passing H.B. 1657, the legislature had positions. Under the Act, promotions are determined by intended to restrict the coverage of the Act, it would have performance on promotional examinations, for which any amended the statutory provision which purports to classified employee -- licensed or unlicensed -- may sit, establish [**7] the Act's scope -- namely, section 2 of as long as the employee meets certain basic requirements. article 1269m, now codified at section 143.003(5) of the Section 143.028. Local Government Code. Notably, on the day after it took final action on H.B. 1657, the 69th Legislature Certainly, there might be instances in which a police demonstrated that it knew full well how to alter the department would prefer to hire someone from outside coverage of the Act. With its adoption of S.B. 540, the the department, rather than to promote from within. We legislature extended the coverage of the Act to include must presume, however, that the legislature [**9] took specialized police forces, such as park police, airport that possibility into account when it created the Act. Our police, and city marshals, in any city having a population function is not to question the wisdom of the statute; of 1,500,000 or more. Tex. S.B. 540, Act of May 27, rather, we must apply it as written. Jones v. Del 1985, ch. 958, § 22, 69th Leg., R.S., 1985 Tex. Gen. Andersen and Associates, 539 S.W.2d 348, 351 (Tex. Laws 3227, 3241. 3 To do so, the legislature amended 1976). Moreover, the legislature might reasonably have section 2's definition of "policeman" by adding a concluded that the goal of efficiency would be well reference to section 14B, a new section governing such served by requiring merit-based promotions within the police forces, now found at section 143.103 of the Local department, rather than giving the department a free hand Government Code. H.B. 1657, in contrast, did not to hire from without. See Note, Absolute Preferences in mention section 2. Municipal Civil Service Appointments: The Unresolved Conflict With Municipal Discretion, 64 Mich. L. Rev. 3 In 1983, the legislature apparently tried to 891, 896-97 (1966). effect that change by amending section 14A of article 1269m. Act of June 19, 1983, 68th Leg., Other provisions, in addition to section 143.023(e), R.S., ch. 517, 1983 Tex. Gen. Laws 3006, indicate that the legislature intended the Act to have repealed by Act of June 16, 1985, 69th Leg., R.S., broader application than the court of appeals suggests. ch. 958, § 21, 1985 Tex. Gen. Laws 3227, Section 143.025(b) requires all applicants to take tests 3240-41. The City of Houston, however, refused based on "police work and work in the police to interpret that amendment in a manner which department," suggesting that the Act's reach extends would extend all provisions of article 1269m to beyond the performance of traditional "police work." the specialized police forces. Senate Committee Section 143.102 gives the Chief of Police of a large on Intergovernmental Relations, Bill Analysis, municipality authority to appoint persons to certain S.B. 540, 69th Leg., R.S. (1985). Consequently, command staff positions, 4 suggesting that the Act would the legislature acted in 1985 to achieve its aim otherwise [*294] require [**10] competitive testing for directly. Id. those positions. Section 143.109, which similarly applies only to a large municipality, prohibits crossover [**8] The City argues that a broad construction of promotions of classified employees in specialized the Act would bring section 143.023(e) into conflict with technical areas, suggesting that the legislature the Act's objective, stated in section 143.001, of contemplated the inclusion of at least some members of promoting efficiency in the police force. If only licensed the technical classes within the civil service system. Page 4 807 S.W.2d 290, *294; 1991 Tex. LEXIS 23, **10; 34 Tex. Sup. J. 408

4 Subchapter G of the Act, which contains needs of the department, as long as the tests meet section 143.102, generally applies only to a the basic requisites of those sections. See municipality with a population of 1.5 million or generally Note, Civil Service Commission -- Civil more. Section 143.101(a). Service Commissions are Generally Accorded Wide Discretion by the Courts in the Preparation Section 143.102 authorizes the Chief of and Administration of Examinations to Meet the Police to "appoint a person to a command staff Public Demand for the Employment of position at the rank of assistant chief." Section Individuals in the Public Service, 30 Drake L. 143.102(a). This suit involves the placement of Rev. 650-52 (1980-81). civilians in positions which are allegedly the equivalent of deputy chief positions; that is, Similarly, the commission is authorized to positions which are immediately below the rank specify age and physical requirements for of assistant chief. Thus, section 143.102 is not beginning and promotional positions, and to directly applicable to this suit. We note, however, require appropriate physical examinations. that legislative efforts to authorize the Chief of Section 143.022. For any given position, the Police to appoint deputy chiefs have consistently requirements must be the same for all applicants; failed. See Tex. H.B. 1590, H.B 1697, H.B. 2218, but nothing in the Act requires the commission to and S.B. 1187, 71st Leg., R.S. (1989). apply the same requirements to every classification or position. Thus, the dissent is [**11] In the absence of a clear definition of flatly wrong in suggesting that a computer genius "police officer," courts should determine the scope of the who is thirty-seven or who has a physical Act by viewing the statute as a whole. The Act applies to disability is forever barred from supervising the any position requiring a competitive examination. §§ police computer department. Assuming, without 143.003, 143.021(c). 5 Such an examination tests an deciding, that such a position must be classified, applicant's "knowledge of and qualifications for . . . the commission has as much latitude in crafting police work and work in the police department," as well requirements for that position as it does for any as the applicant's "general education and mental ability." other. Section 143.025(b). 6 We conclude, then, that the Act [**12] applies to any position requiring proficiency in all of 7 "Police work," in our view, refers to traditional those areas. If a particular position requires substantial law enforcement functions. Any broader knowledge of "police work and work in the police interpretation would render the phrase redundant. department," then it must be classified. Conversely, if a The second half of the phrase, i.e, "and work in position requires no knowledge of such work, then the the police department," encompasses other position need not be classified. 7 Where the duties and activities within the department. functions entailed by a particular job are undisputed, the determination of whether that job requires knowledge of Of course, virtually every position may police work and work in the police department is a require some knowledge of "work in the police question of law for the court. department." However, to apply the Act on that basis alone would be to ignore the conjunctive 5 In article 1269m, see sections 2, 8(b), 9(a), and term "and." The Act applies only to those 12(c). positions requiring knowledge of "police work 6 The local Fire Fighters' and Police Officers' and work in the police department." Some Civil Service Commission must provide for positions requiring knowledge of work in the "open, competitive, and free" entrance police department may not require knowledge of examinations, § 143.025, and must also provide police work; consequently, those positions need for fair promotional examinations, § 143.032. not be classified. Neither section requires that the commission provide the same test for every classification or We recognize that this holding may not resolve all position. Rather, the commission may design doubts as to whether the Act covers particular positions. whatever tests are necessary to meet the particular However, the legislature's failure to draw a bright line Page 5 807 S.W.2d 290, *294; 1991 Tex. LEXIS 23, **12; 34 Tex. Sup. J. 408

does not, in itself, authorize a court to draw one of its does provide special procedures for appointment to own. It is the obligation of the legislature, rather than the positions [**15] at the very top of the ladder. §§ courts, to develop a workable definition of "police 143.013, 143.014, 143.102. At subordinate levels, officer." See Tex. Const. [**13] art. II, § 1. 8 A [*295] however, the civil service ladder must remain intact. 9 All court may not judicially amend a statute and add words positions in the civil service hierarchy -- that is, all that are not implicitly contained in the language of the classified positions, and all positions entailing the statute. Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901 supervision of classified employees -- must be classified, (Tex. 1988). and all appointments to those positions must be made in accordance with the Act. See International Ass'n of 8 We note that the Act, as a whole, has not Firefighters v. Townsend, 622 S.W.2d 562, 563 (Tex. suffered from legislative inattention. Since the 1981). adoption of the new definition of "policeman," the legislature has amended the statute at least 9 In a city with a population of 1.5 million or thirty-two times. In none of those instances, more, such as Houston, the Act provides for however, did the legislature address the distinct ladders within specialized police divisions opaqueness of the statute's most basic provision. and classes. Sec. 143.103. Officers in such Until the legislature clearly defines the scope of divisions are still accorded the benefit of all other the Fire Fighters' and Police Officers' Civil provisions in the Act, "including the provisions Service System, courts will be left to apply the relating to eligibility lists, examinations, vague standard we discern today to increasingly promotions, appointments," etc. Section complex bureaucracies. 143.103(c).

Moreover, the standard we discern today should, in Evidence in the present case indicates that the City most cases, produce an unequivocal answer as to whether "declassified" certain top-level job assignments within a particular position must be classified. The average the HPD. The trial court found that four [**16] patrol officer's duties certainly require knowledge of newly-hired, unclassified employees were performing the police work and work in the police department; [**14] same duties, and exercising the same supervisory to that extent, the average patrol officer's position must responsibilities, as deputy chiefs of police, while five be classified. On the other hand, the duties of an ordinary others assumed the duties and responsibilities of clerk-typist in the police department do not require lieutenants. The unclassified employees thus occupied knowledge of police work and work in the police positions which are, and long have been, integral parts of department; so to that extent, the clerk-typist's position the HPD's civil service hierarchy. Accordingly, the need not be classified. placement of unclassified employees in those positions contravened the Act. When the duties of a particular position fall outside the scope of the Act, the City may abolish the position, We do not hold that every high-level position in a provided it does so in good faith. Moncrief v. Tate, 593 police department must be held by a classified employee. S.W.2d 312 (Tex. 1980). As long as the position remains If a particular job assignment requires no knowledge of within the civil service system, however, any person police work and work in the police department, and holding the position is entitled to the full protection of the entails no supervision of classified officers, the position Act. need not be classified. Thus, the Act does not necessarily prohibit the vertical declassification of certain One critical aspect of civil service protection is the subdivisions within the department. Nor does the Act right to seek promotion by way of competitive prohibit the holder of a police license from assuming a examinations. Section 143.031. For every classified job assignment outside of the civil service system, when employee, the civil service system offers a career ladder, the assignment requires no knowledge of police work and whereby the officer may work his or her way upward work in the police department, as defined above. through the ranks. The various ranks, like rungs on a ladder, must comport with the system as a whole; that is, The Act does, however, prohibit horizontal they must be filled by competitive examination, open to declassification across upper levels of bureaucratic all who meet the basic statutory requirements. The Act [**17] subdivisions, when classified employees hold Page 6 807 S.W.2d 290, *295; 1991 Tex. LEXIS 23, **; 34 Tex. Sup. J. 408

subordinate positions within those subdivisions. The believe that there has been a showing that any "classified removal of such upper-level positions from the civil position" has been lost. No one lost their job as a result of service system would expose critical job assignments to the ordinances, and the number of positions within a political influence, and would obstruct the upward classification was the [**19] same before and after the progress of classified [*296] employees. Such passage of the ordinances. For these reasons, I dissent. declassification would thus thwart the Act's aim of securing efficient police departments. Section 143.001. 1 Tex. Loc. Gov't Code Ann. §§ 143.001-.134 (Vernon 1988 & Supp. 1991). References to the We hold that the challenged placements contravened "Act" or the "code" are to the Texas Local the Act's requirement that all covered positions be filled Government Code unless otherwise noted. in accordance with the statutory terms. Section 143.021(c). 10 We therefore reverse the judgment of the The case was tried prior to recodification, court of appeals and remand the cause to the trial court under Tex. Rev. Civ. Stat. art. 1269m, repealed by for entry of judgment in accordance with this opinion. Act of 1987, ch. 149, § 49(1), 1987 Tex. Gen. Laws 1306. Corresponding references to the prior 10 In article 1269m, see section 8(b). codification are noted in the footnotes.

We do not reach the Petitioners' contention The Act provides for the classification of all that the Respondents' actions amounted to policemen within the department, and for the promotion abolition of existing classified positions. See City of policemen according to their position on eligibility of San Antonio v. Wallace, 161 Tex. 41, 338 lists compiled from the results of competitive S.W.2d 153 (Tex. 1960). examinations. The Act provides that, except for a few narrow exceptions, "an existing position or classification DISSENT BY: GONZALEZ or a position or classification created in the future either by name or by increase in salary may be filled only from DISSENT an eligibility list that results from an examination held in accordance with this chapter." Code [**20] Section 143.021(c). 2 In addition to "classified" policemen under [**18] DISSENTING OPINION the Act, HPD also employs approximately 2,000 employees who do work that does not require the Raul A. Gonzalez, Justice specialized training of police officers, such as clerks, Does the law mandate that a police officer who secretaries, computer operators, mechanics, janitors and knows nothing about mechanics be promoted over a the like. These employees are protected by another civil civilian master mechanic to be head of the automobile service ordinance that covers municipal employees. fleet maintenance department of the City of Houston 2 See Tex. Rev. Civ. Stat. Art. 1269m, § 8(b) Police Department (HPD)? Did the legislature mandate (repealed). that only a police officer can supervise other police officers, even if the task at hand requires no special law In recent years, the trend in the HPD has been to enforcement skills, or that only a police officer can be in "civilianize" the police department: that is, to hire charge of the police computer department, police garage, additional civilians throughout the department for or Police Training Academy? These absurd consequences managerial and technical roles in order to free up trained flow as a result of the majority opinion and are not police officers for the police work that only classified law supported by logic, prior case law, the statute, or the enforcement personnel can do. The city ordinances have history of the statute. ranked Houston police officers below the non-classified chief of police in the following classifications, from I agree with the court of appeals that the Firemen's highest to lowest rank: assistant chief, deputy chief, and Policemen's Civil Service Act 1 (the Act) applies captain, lieutenant, sergeant, police officer, and only to positions requiring performance of traditional law probationary police officer. In [**21] my opinion, these enforcement duties such as making arrests, enforcing the are the career ladder positions that the Act endeavors to law and conducting investigations. Moreover, I do not protect. Page 7 807 S.W.2d 290, *296; 1991 Tex. LEXIS 23, **21; 34 Tex. Sup. J. 408

[*297] The city ordinances that the petitioners An existing position or classification or a position or assert are in conflict with the Act were passed between classification created in the future either by name or by 1982-1985. 3 These ordinances created nine "civilian" increase in salary may be filled only from an eligibility departments or job assignments encompassing some of list that results from an examination held in accordance the duties formerly performed by classified police with this chapter." [Code section 143.021.] 6 officers. The ordinances created four police administrator divisions: Planning and Research, Crime Information An eligibility list for a beginning position in the fire Center, Police Garage, and the Police Training Academy. or police department may be created only as a result of a The duties assumed by police administrators were competitive examination held in the presence of each formerly assigned to captains. The ordinances also applicant for the position. . . . A person may not be created the following job assignments: two assistant appointed to the fire or police department except as a police administrators; urban policy planner IV, an result of the examination. [Code section 143.025(b).] 7 administrative assistant IV, and an education coordinator Each person employed by the police department who in the police academy, each of which is roughly equal in is a member of the technical or communications class is salary and assignment to positions held by a lieutenant. eligible [*298] for a promotion within that class. [Code 3 Houston, Tex., Ordinances 82-1165, 84-1290, section 143.109(b).] 8 and 85-568. Each provision of this chapter relating to eligibility In 1986, the city council passed City Ordinance lists, examinations, appointments, and promotions applies 86-1278, which implemented [**22] a plan for to the appointment or promotion of members of the reorganization by creating four new bureaus in HPD: technical, communications, and uniformed and detective Management Information, Fleet Maintenance, Career classes within the member's respective class. [Code Development, and the Office of Planning and Research. section 143.109(e).] 9 The duties and functions of these bureaus were taken 4 In their application, petitioners assert that "the from other departments which were assumed into these only construction which harmonizes all of the new bureaus and four civilian administrators were Act's provisions is the one which affords civil promoted to head these bureaus. Before this service protection to all members of police reorganization, bureaus were traditionally headed by departments, regardless of whether their job deputy chiefs. requires police work." This position, shared by the The petitioners in this case are HPD police officers dissent in the court of appeals, 762 S.W.2d 189, of various ranks who are at or near the top of the was abandoned by petitioners during oral promotion eligibility list for their respective rank. They argument of this case: allege that the hiring of civilians to fill the new positions J. Mauzy: Counselor, are you taking the violates the Act and assert that had the Act been position that the state civil service law applies to followed, each would have been promoted either into one every employee of the police department? of the newly created job assignments or into one of the positions vacated by officers who were themselves Attorney for Petitioners: No your honor, I am promoted. not. The petitioners argued in their application for writ of J. Hecht: You do agree that there are some error that the mandatory promotion procedures of the Act employees of the police department who are not govern all positions in the HPD, 4 not merely those which covered by the statute, and now the squabble is entail traditional law enforcement duties. The Act which ones are which? provides: Attorney for Petitioners: I think that is a The commission shall provide for the classification possible interpretation. of all fire fighters [**23] and police officers. [Code section 143.021(a).] 5 J. Hecht: In essence there are some employees of a police department who are not Page 8 807 S.W.2d 290, *298; 1991 Tex. LEXIS 23, **23; 34 Tex. Sup. J. 408

covered by the statute? That is your view? "police officer" covered by the Act, we can determine the intended scope of the Act. Attorney for Petitioners: I think that probably is the correct interpretation. The earliest predecessor to [**26] this section, [**24] Article 1269m, section 2, broadly defined "policeman" as 5 See Tex. Rev. Civ. Stat. Art. 1269m, § 8(a) "any member of the police department who draws (repealed). compensation for his services as a member of said 6 See Tex. Rev. Civ. Stat. Art. 1269m, § 8(b) department." 12 Act of June 2, 1947, ch. 325, § 2, 1947 (repealed). Tex. Gen. Laws 550, 551. This definition was construed 7 See Tex. Rev. Civ. Stat. Art. 1269m, § 9(a) by some courts to include: juvenile social workers, switch (repealed). board operators, linemen, clerks, mechanics and other 8 See Tex. Rev. Civ. Stat. Art. 1269m, § 14A(a) employees incidental to the operation of the police (repealed). department. See City of San Antonio v. Handley, 308 9 See Tex. Rev. Civ. Stat. Art. 1269m, § 14A(d) S.W.2d 608 (Tex. Civ. App. -- San Antonio 1958, writ (repealed). ref'd); City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex. Civ. App. -- Fort Worth 1957, writ ref'd n.r.e.); City of The petitioners assert that the court of appeals' San Antonio v. Hahn, 274 S.W.2d 162 (Tex. Civ. App. -- construction of "classified positions" as only those Austin 1954, writ ref'd n.r.e.); City of San Antonio v. positions which require the performance of police work, Wiley, 252 S.W.2d 471 (Tex. Civ. App. -- San Antonio cannot be harmonized with the broad language of these 1952, writ ref'd n.r.e.). sections. I disagree. The Act provides that each "police officer is classified as prescribed by this subchapter and 12 With the recodification of the act into the has civil service protection." Code section 143.021(b). 10 Local Government Code, the term "policeman" In my view, the Act's definition of "police officer" was replaced by "police officer." Tex. Local Gov't controls the scope of the chapter and precludes Code Ann. § 143.003 (Vernon 1988). application of the Act to the disputed job assignments. In my opinion, the Act applies to HPD members who were [**27] In reaction to these cases, the legislature appointed to their position "in substantial compliance narrowed the scope of coverage of the Act by changing with this chapter [chapter 143, which is the entire Act] or the definition of "policeman." In 1957, Section 2 of the who is entitled to civil service status under [**25] Act was amended to define "policeman" as "any member Section 143.005, 143.084, or 143.103." Code section of the Police Department appointed to such position in 143.003(5). 11 substantial compliance with the provisions of Sections 9, 10, and 11 of this Act. . . ." Act of 1957, ch. 391, § 1, 10 See Tex. Rev. Civ. Stat. art. 1269m, § 8(c) 1957 Tex. Gen. Laws 1171. Sections 9, 10, and 11 (repealed). provided some of the qualifications for entry positions as 11 At the time of suit, the predecessor to this a policeman. After the 1957 amendment, the Act statute defined policemen as those appointed "in mandates that we look to the qualifications for substantial compliance with the provisions of appointment to the beginning position of police officer to sections 9, 10, and 11 of this Act, or entitled to determine the Act's coverage. 13 Civil Service Status under section 14B or 24 of the Act." Tex. Rev. Civ. Stat. art 1269m, § 2. 13 Now the code defines a police officer as one Sections 9, 10, and 11 refer to the qualifications appointed in substantial compliance with chapter of beginning policemen, as described below. 143 of the code, i.e., the entire act. Tex. Loc. Gov't Code Ann. § 143.003(5) (Vernon 1988). The majority declares that this definition is circular, arguing that the Act can be avoided by not requiring any [*299] The majority concludes that because the Act standards of applicants. But the fact that the Act can be includes a requirement that applicants be tested on their given one absurd construction does not justify the knowledge of "police work and work in [**28] the opposite extreme. From the legislative history and case police department," we must expand the Act's coverage law concerning who was covered by the Act formerly, beyond traditional law enforcement positions. This along with an analysis of the requirements to become a section suggests that a good officer has to know Page 9 807 S.W.2d 290, *299; 1991 Tex. LEXIS 23, **28; 34 Tex. Sup. J. 408

something of the department bureaucracy, but does not reasonably require them to meet the requirements mean that department bureaucrats must be police officers. of the statute, those performing traditional law Otherwise, it can just as easily be argued that since the enforcement duties. statute requires that all applicants must be able to speak English, 14 all English speakers are covered by the Act. [**30] Finally the Act requires all beginning police officers to meet the "legal requirements necessary to 14 Tex. Loc. Gov't Code Ann. § 143.023(f) become eligible for future licensure by the [Texas] (Vernon 1988). Commission on Law Enforcement Officers Standards and Education." TEX. LOC. GOV'T CODE ANN. § I would not restrict the inquiry to the fact that a 143.023(e) (Vernon 1988). 17 To be eligible for licensing written exam is required covering the subjects of police a party must exhibit weapons proficiency. TEX. GOV. work and work in the police department. The Act does CODE § 415.052(a)(5) (Vernon 1990). The Texas not suggest we may select one of the requirements for Administrative Code defines proficiency in terms of appointment to an entry position and ignore all others in being able to achieve a score of seventy percent shooting determining legislative intent. A written examination is various weapons at certain distances. 37 Tex. Admin. not the only requirement imposed on all applicants by Code § 211.104 (1990). Before the court gives too these sections. The Act also requires that, generally, no expansive an interpretation to the Act, it should keep in beginning applicant may be over 36 years of age. 15 It mind that those covered by the Act must meet these also requires that all [**29] applicants for the same additional requirements. It is not true, as the court's position meet the same physical requirements. 16 opinion would indicate, that all a civilian has to do to qualify for a position is sit down and study for a written 15 The Act provides: examination. Under the court's opinion, a civilian computer genius who is 37 or has a physical disability is A person who is 45 years of age or older may forever barred from supervising the police computer not be certified for a beginning position in a department because some employees of the department police department. A person who is 36 years of are police officers. For the same reasons, a civilian age or older and under 45 may not be certified as master mechanic could not be in [**31] charge of the eligible for a beginning position in a police police garage or the best available civilian educator could department unless the person has at least five not be in charge of the police academy. Thus, from the years' experience as a peace officer or at least five legislative intent to narrow coverage to "police officers," years' of military experience. and the nature of the requirements imposed on beginning Tex. Loc. Gov't Code Ann. § 143.023(c) "police officers," it must be concluded that the Act (Vernon 1988). I do not see how the local applies only to the hiring and promotion of employees commission is authorized to make a exception as who were originally appointed to HPD as law the majority suggests. enforcement officers, and does not affect HPD's 16 The Act requires: employment of civilians.

The commission shall set the age and 17 See Tex. Rev. Civ. Stat. art. 1269m, § 9(e) physical requirements for applicants for beginning (repealed). and promotional positions in accordance with this This common sense interpretation is consistent with chapter. The requirements must be the same for the legislative and judicial history of the Act. Favoring a all applicants. statutory construction without discriminatory Tex. Loc. Gov't Code Ann. § 143.022(a) implications, [*300] I am convinced that it is the nature (Vernon 1988). See Tex. Rev. Civ. Stat. art. of the job and not the qualifications of one's subordinates 1269m, § 9(d) (repealed). While it is possible that that determines whether a supervisor must be a police the commission could make a "soft track" and a officer. If an officer is performing a job that does not "hard track," I find the simpler explanation to be require traditional law enforcement skills, it makes no that the legislature intended to narrow the Act's sense to require that his or her supervisor must [**32] be applicability to those whose job responsibilities a law officer. I would hold that it is only those Page 10 807 S.W.2d 290, *300; 1991 Tex. LEXIS 23, **32; 34 Tex. Sup. J. 408

supervisory positions which require the supervision of laboratory analysis and interpretations or the traditional law enforcement functions that are "classified" technical aspects of criminal identification and supervisory positions. photography." See Tex. Rev. Civ. Stat. art. 1269m, §§ 14A & 14B (repealed). I disagree that the mere fact that a supervisor supervises classified police officers mandates that the [**34] Furthermore, as a matter of law there was supervisor must also be a police officer as defined by not a failure to fill a vacancy within a classification in statute. In my opinion, the legislative and judicial history violation of the Act. The Act requires the city council to clearly indicates that the 1957 amendment operated as a establish by ordinance the classification of police legislative overruling of the pre-1957 constructions of the officers, and the number of positions in each Act, and narrowed the scope of the application of the Act classification. Id. Section 143.021(a). 19 The council to police department employees who perform law created the classifications of Assistant Chief, Deputy enforcement duties. Chief, Captain, etc. The council does not set forth the job assignment or title that is at issue here. The four positions Petitioners argue that the specific inclusion of in question are the heads of (1) the Management specialty positions shows that the Act must have broader Information Bureau (performing the functions of the application. 18 The fact that the legislature must former Technical Services Bureau, and the Computer affirmatively act to extend the Act protection to a class of Services Division); (2) the Fleet Maintenance Bureau; (3) police department employees implies legislative intent the Career Development Bureau; and (4) the Office of that the Act does not automatically extend to all Planning and Research were created by the Chief of employees. Also, petitioners ignore the fact that the same Police, rather than created by ordinance. The number of statutes expressly preclude the exact "crossover classified positions were not reduced as a result of the promotions" which petitioners are now seeking: department's reorganization, although some classified officers were transferred to different job assignment. The A member of a particular class is not eligible for police civil service system protects classifications, and promotion to a [**33] position outside that class and positions within the classification, but does not create a lateral crossover by promotion by a member of one class vested interest in any particular job assignment [**35] . to another class is prohibited. If a member of one class Since no classified position was lost, as a matter of law wants to change classes, the member must qualify and the plaintiffs have no cause of action. 20 enter the new class at the lowest entry level of that class. 19 See Tex. Rev. Civ. Stat. art. 1269m, § 8(a) TEX. LOC. GOV'T CODE ANN. § 143.103(b) (repealed). (Vernon 1988); see also Section 143.109(c). The Act 20 The majority describes a "horizontal" and further provides: "vertical" classification system that does not exist either in the facts of this case or in the Act. There Each provision of this chapter relating to eligibility lists, examinations, appointments, and promotions applies is no evidence that the legislature ever contemplated or intended the Act to be analyzed to the appointment or promotion of members of the in this fashion. The Act does not discuss technical, communications, and uniformed and detective non-classified employees of the department, and classes within the members' respective class. certainly does not mandate that any supervisor Id. Section 143.109. whose duties include the supervision of classified officers must also be classified. 18 Tex. Loc. Gov't Code Ann. § 143.103(a) (Vernon 1988) extends the act to special peace Moreover, there is no horizontal officers such as park police and airport police. classification in the Act that is not satisfied by the Section 143.109 extends the act to a Houston system of providing for the various ranks "communications class", which "each person who of the police officers. The Act does nothing more performs the technical operation of police radio than require that classified police officers be communications", and "technical class" which permitted to advance in rank to the same extent includes "each person who performs criminal after the reorganization of the department as Page 11 807 S.W.2d 290, *300; 1991 Tex. LEXIS 23, **35; 34 Tex. Sup. J. 408

before. The Houston ordinances satisfy this conclude that the clerk-typist position was classified requirement. under this standard. Furthermore, the argument that [**38] the conjunction "and," S.W.2d at n.7, solves [**36] [*301] I am as troubled by the questions the problem misses the point -- the proposed standard is left open by the so-called "standard" adopted in today's still confusing and subject to broad interpretation. opinion. The court writes: The court of appeals' common sense reading of the In the absence of a clear definition of "police statute was much more likely to result in unequivocal officers," courts should determine the scope of the Act by answers as to whether a position was classified. The court viewing the statute as a whole. The Act applies to any of appeals' standard established that only positions position requiring a competitive examination. 21 requiring performance of law enforcement duties or (Citations omitted.) Such an examination tests an supervision of police officers performing law applicant's "knowledge of and qualifications for . . . enforcement duties were classified. 762 S.W.2d at 187. police work and work in the police department," as well Under this standard, there is no way a court could find as the applicant's "general education and mental ability." that a clerk-typist position was classified. Thus, I agree (Citations omitted.) We conclude, then, that the Act with the court of appeals opinion and would affirm the applies to any position requiring proficiency in all of court of appeals judgment. those areas. If a particular position requires substantial knowledge of "police work and work in the police Finally, I am concerned with the procedural department," then it must be classified. disposition of this case. The court "hold[s] that the challenged placements contravened the Act's requirement S.W.2d at . that all covered positions be filled in accordance with the statutory terms," and "reverse[s] the judgment of the 21 None of the nine civilian departments or job court of appeals and remand[s] the cause to the trial court assignments in question require the taking of for entry of judgment in accordance with this opinion." competitive examinations. S.W.2d at . This disposition is confusing. What does this [**39] mean? What is the trial court to do? The only Who determines that a particular position requires guidance given to the trial court to determine if the [**37] knowledge of "police work and work in the positions are classified is the majority's so-called new police department?" The Mayor? City Council? Police standard: Whether the positions requires proficiency in Chief? Police Unions? Civil Service Commission? The "'knowledge of and qualifications for police work and Courts? [*302] work in the police department,' as well as 'general By its very nature, all supervisory positions require education and mental ability.'" S.W.2d at . However, that the supervisor know something about the work he or the majority correctly states that whether a position she is supervising whether in the police department or comes within the ambit of the Act is a question of law. elsewhere. Does today's opinion stand for the proposition S.W.2d at . Questions of law are within our that all supervisory positions within the police jurisdiction to render final judgment. Why then does the department will always be covered by the Act? majority duck rendering judgment in this case? Is this a signal that the court expects for the trial court to conduct I am also concerned that the majority overestimates an evidentiary hearing before it issues another ruling in the effectiveness of its new standard. I disagree that "the this case. standard we discern today should, in most cases, produce an unequivocal answer as to whether a particular position There is no purpose in our remanding this cause to may be classified." S.W.2d . The majority's conclusion the trial court for it to "enter" (render) a judgment that we that "the duties of an ordinary clerk-typist in the police can render. Alternatively, if the trial court is to hear more department do not require knowledge of police work and evidence regarding whether the positions in question are work in the police department" is not so obvious under classified in light of the court's new nebulous standard, this standard. It seems that all employees of the police then the whole case should be remanded, in the interest of department must have some knowledge of police work justice, for new trial. Also, the court of appeals [**40] and work in the police department so a court could never reached the city's factual insufficiency points and Page 12 807 S.W.2d 290, *302; 1991 Tex. LEXIS 23, **40; 34 Tex. Sup. J. 408

today's opinion denies the city their right to a meaningful appellate review. 523 S.W.2d 641, 645 (Tex. 1975) (emphasis added). I agree with the City that the petitioners have failed to meet In conclusion, the majority's convoluted opinion this rigorous burden. muddles the law and is micro management at its worst. Absent corrective legislation, the court's failure to give The court holds that the [**42] Act proscribes the clear guidance to the bench and bar will not only serve to City's attempt to restructure the police department by keep this case and others like it in the courts for some ordinance. The City does not advocate an absurdist time to come but will also thwart the Act's purpose of construction which would "nullify the Act as a whole." facilitating efficient police and fire departments. S.W.2d n. 3. There is no dispute that the Act is clearly intended to protect traditional law enforcement For all of these reasons, I dissent. positions. The issue here is whether the Act clearly extends coverage beyond such positions. The majority DISSENTING OPINION ON MOTION FOR opinion does not demonstrate how this legislative intent REHEARING appears "with unmistakable clarity." To the contrary, it is replete with observations about the lack of a clear Raul A. Gonzalez, Justice expression of legislative intent. For example the opinion In its motion for rehearing, among other things, the states: City of Houston alleges that the court: (1) failed to apply the Act requires the city council, or other legislative the proper standard of review; (2) misinterpreted the body, to provide by ordinance [*303] for the purpose and significance of section 143.023(e) of the classification of all fire fighters and police officers; that Firemens' and Policemens' Civil Service Act 1 (the Act); is, to place all such officers within the protection of a (3) erred by judicially amending the Act to add words not civil service system. Section 143.021. The proper expressly or necessarily implied in the language of the boundaries of that system, however, are not clear. Act; and (4) that the majority opinion is internally inconsistent. I agree. S.W.2d at (emphasis added). 1 Tex. Loc. Gov't Code Ann. §§ 143.001-.134 With a 1957 amendment, however, the Act's (Vernon 1988 & Supp. 1991). definition of "policeman" [i.e., those covered by the Act] became less clear. . . . Thus, since 1957, the Act's most [**41] The constitution grants broad discretionary [**43] important definition has been circular. powers to home-rule cities subject to the limitation that ordinances must not be inconsistent with the constitution S.W.2d at (emphasis added). or other state statute. TEX. CONST. art. XI, § 5; City of Richardson v. Responsible Dog Owners, 794 S.W.2d 17, Since the adoption of the new definition of 19 (Tex. 1990). Therefore, we should hold that a state "policeman," the legislature has amended the statute at statute restricts local autonomy only if the legislative least thirty-two times. In none of those instances, intent to do so is unmistakably clear. As we said in Lower however, did the legislature address the opaqueness of Colorado River Authority v. City of San Marcos: the statute's most basic provision. Until the legislature clearly defines the scope of the Fire Fighters' and Police A limitation on the power of home rule cities by Officers' Civil Service System, courts will be left to apply general law or by charter may be either an express the vague standard we discern today to increasingly limitation or one arising by implication. "Such a complex bureaucracies. limitation will not be implied, however, unless the provisions of the general law or of the charter are clear S.W.2d at (emphasis added). Thus the court and compelling to that end." [Glass v. Smith, 150 Tex. concedes that there is no evidence of a legislative intent 632, 244 S.W.2d 645, 649 (Tex. 1951)]. The intention of that the Act must cover any supervisor of a classified the Legislature to impose such limitation must "appear officer. with unmistakable clarity." [City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex. 1964)]. In reaching its decision, the court announces a Page 13 807 S.W.2d 290, *303; 1991 Tex. LEXIS 23, **43; 34 Tex. Sup. J. 408

two-prong test, but fails to apply it to supervisors. competitive testing, that policy is served. Another clear Instead, the court announces an additional rule that policy of the Act is development and maintenance of an categorically, supervisors of classified employees must efficient and capable police force. Id. This policy is not themselves be covered by the Act. It does so based on a well served by requiring that positions be filled by concept that "vertical declassification" is permissible persons qualified to be licensed officers without regard while "horizontal" declassification is not. As the City for whether those skills are relevant to the job to be correctly points out in its motion for rehearing, these performed. This objective is of particular concern given concepts or categories are nowhere [**44] to be found in Houston's documented need to devote more qualified the language of the Act nor its legislative history. They personnel to traditional law enforcement duties. are of the court's own creation. The majority's infringement on local autonomy is The Act unmistakably expresses a policy of unwarranted absent a clear expression of legislative intent providing a career ladder for "police officers" free from to that effect. For these reasons and those discussed in my political influence. TEX. LOC. GOV'T CODE ANN. § earlier dissenting opinion, I would grant the motion for 143.001(a). Nothing in the City's system threatens that [**45] rehearing. policy. If, as here, the number of positions at every rank is not diminished, and a covered officer is afforded the Justice Cornyn joins. full panoply of rights such as advancement by