in the Matter of Lonnie Birt Donaldson, Sr.

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00079-CV

IN THE MATTER OF LONNIE BIRT DONALDSON, SR.

From the 272nd District Court Brazos County, Texas Trial Court No. 19-003380-CV-272

MEMORANDUM OPINION ON REHEARING

On original submission, we dismissed this matter for want of prosecution based

on appellant Lonnie Birt Donaldson’s failure to timely file a brief. See generally In re

Donaldson, No. 10-20-00079-CV, 2020 Tex. App. LEXIS 6968 (Tex. App.—Waco Aug. 27,

2020, no pet. h.) (mem. op.). Subsequently, appellant filed a motion for rehearing and for

en banc reconsideration requesting that we reinstate this matter because his failure to

timely file his brief was not due to lack of diligence, but rather, due to lockdown

procedures at the prison due to COVID-19. He has since filed a brief in this matter.

Despite the fact that appellant’s brief was originally due within thirty days from when

the Clerk’s Record was filed, February 26, 2020, see TEX. R. APP. P. 38.6(a), in the interest of justice, we grant appellant’s motion for rehearing and en banc reconsideration,

withdraw our prior opinion and judgment from August 27, 2020, and substitute the

following in their place.

In two issues, appellant challenges the trial court’s denial of his petition for a name

change under the Texas Family Code. See TEX. FAM. CODE ANN. § 45.102. We affirm.

In the instant case, the trial court denied appellant’s request for a name change

because appellant “does not meet the requirements of Texas Family Code Section 45.103.”

Under section 45.103(a) of the Texas Family Code, a trial court shall order a change of

name if the change is in the interest or to the benefit of the petitioner and in the interest

of the public, so long as the person does not have a final felony conviction or is not subject

to the registration requirements of Chapter 62 of the Code of Criminal Procedure. TEX.

FAM. CODE ANN. § 45.103(a). A trial court may order a name change for a person with a

final felony conviction, if the change is in the interest or benefit of the petitioner and in

the interest of the public, see id. § 45.103(a), and the person has received a certificate of

discharge by the Texas Department of Criminal Justice or completed a period of

community supervision or juvenile probation ordered by a court and not less than two

years have passed from the date of the receipt of discharge or completion of community

supervision or juvenile probation, or the person has been pardoned. Id. § 45.103(b).

Section 45.103(b)(2) also provides that a trial court may order a name change for a person

In the Matter of Donaldson Page 2 with a final felony conviction if the person is requesting to change his name to the

primary name used in his criminal history record information. Id. § 45.103(b)(2).

In arguing that the trial court should have granted his request for a name change,

appellant relies on cases from other states, including In re Ely, which held that “conviction

of a felony, by itself, is not grounds to deny a name change petition.” No. M2000-01937-

COA-R3-CV, 2004 Tenn. App. LEXIS 144 (Tenn. Ct. App. Mar. 1, 2004). Unlike Texas’s

blanket “final felony conviction” limiting language, see TEX. FAM. CODE ANN. § 45.103(a),

the Tennessee statute regulating name changes specifies only certain convictions for

which name changes are prohibited. See TENN. CODE ANN. § 9-8-101. However, our

analysis calls for an interpretation and application of Texas law, so we find In re Ely and

the other cases from outside Texas relied upon by appellant unpersuasive to this analysis.

Appellant judicially admitted in his pleading that he is currently incarcerated in

the Texas Department of Criminal Justice-Institutional Division for a felony conviction.

See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (noting that

assertions of fact, not pleaded in the alternative, in the live pleadings of a party are

regarded as formal judicial admissions and that a judicial admission that is clear and

unequivocal has conclusive effect and bars the admitting party from later disputing the

admitted fact); see also DowElanco v. Benitez, 4 S.W.3d 866, 871 (Tex. App.—Corpus Christi

1999, no pet.) (“A judicial admission is a formal waiver of proof, usually found in

pleadings or the stipulations of the parties, that dispenses with the production of

In the Matter of Donaldson Page 3 evidence on an issue and bars the admitting party from disputing it.”). A “final felony

conviction” bars a petitioner in Texas, such as appellant, who is still incarcerated, from

seeking a name change. See TEX. FAM. CODE ANN. § 45.103(a). Furthermore, appellant

has not demonstrated that his situation corresponds with the provisions for name change

for individuals with final felony conviction outlined in section 45.103(b) of the Family

Code. See id. § 45.103(b). Therefore, because he is not entitled to a name change as an

individual with a “final felony conviction,” appellant’s complaints in his brief lack merit.

Accordingly, having reviewed the record, we hold that the trial court did not abuse its

discretion by denying appellant’s request for a name change. We overrule all of

appellant’s issues in this appeal.

We affirm the trial court’s order denying appellant’s petition for name change.

JOHN E. NEILL Justice

Before Chief Justice Gray Justice Davis, and Justice Neill Affirmed and motion for rehearing granted Opinion delivered and filed October 7, 2020 [CV06]

In the Matter of Donaldson Page 4