Sanger School Foundation, Inc. v. City of Waco, Texas

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00028-CV

Sanger School Foundation, Inc.,

                                                                                    Appellant

 v.

City of Waco, Texas,

                                                                                    Appellee

From the 74th District Court

McLennan County, Texas

Trial Court No. 2008-3927-3

ORDER

            By order dated April 14, 2010, this Court referred the above-referenced matter to mediation.  The City of Waco filed an objection to the referral to mediation on April 20, 2010.  The Court requests a response from the Sanger School Foundation, Inc. to the City of Waco’s objection.

            So that the mediation may have the greatest likelihood of success, the Court specifically requests that the Foundation address the following issues raised by the City in its objections, as well as any other issues the Foundation desires to address:

1. How can the City of Waco be assured that the Foundation is being represented by a person with the authority to resolve the dispute?

2. Whether the attorney that has been representing the Foundation in these proceedings, specifically Lanelle McNamara, who is also the secretary and a director of the Foundation, is the appropriate representative for the Foundation at the mediation?

            With regard to question one, the Court noted in the referral order that before this matter was appealed, a question had been raised regarding the authority of the attorney, specifically Lanelle McNamara, to represent the Foundation.  The Court inquires whether it would be possible for the attorneys representing the Foundation, or the representative of the Foundation that appears at the mediation, to be in a position to present to the mediator a fully approved resolution of the Board of the Foundation evidencing the designation of a Foundation representative, as well as, or in addition to, the designation of an attorney to represent the Foundation at the mediation.

            With regard to question two, the Court notes that a request was previously made regarding Susan Johnston’s participation in the appellate process, noting that Johnston was at that time out of the state and her participation in the response was necessary and, thus, the deadline for the response needed to be extended.

            Additionally, the Court is considering modification of the standard mediation order regarding the required attendance at the mediation of representatives of corporate parties with authority to bind the corporation, both the Foundation and the City of Waco.  Specifically, the Court is evaluating whether meaningful mediation could occur if the mediation is attended only by the attorneys representing the respective corporate entities with the requirement that the representatives of the corporate entity with authority to negotiate on behalf of the corporate entity be available by telephone.  Additionally, the Court is considering modification of the standard mediation order by requiring only that the designated representative available by telephone be a representative in a position to recommend adoption of a settlement agreement by the members of the governing structure of the corporate entity.  Accordingly, the Court requests a response from both parties regarding the potential for modification of the mediation order in this regard.

            Further, to alleviate the City’s expressed concern regarding security, the Court will make every effort to accommodate the parties on a date when the Grand Jury Room and the Tenth Court of Appeals Courtroom would be available in which to conduct the mediation process so that the parties would have the benefit of being screened through security upon entry into the McLennan County Courthouse.  This issue should likewise be addressed by both parties in their response. 

            Finally, if the appointed mediator has any observations or concerns he wishes to express or have considered in a further order regarding mediation of this proceeding, the Court would be open to a response from the mediator.

            All responses requested herein are due on or before seven days after the date of this order.

            The mediation timetable is hereby suspended until further order of the Court.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Response requested

Order issued and filed April 28, 2010

error, Richardson attacks the trial court's conclusion that it did not have jurisdiction to hear the application for postconviction habeas corpus. Article 11.07 applies only after final conviction in a felony case. Ex parte Renier, 734 S.W.2d 349, 351 (Tex. Crim. App. 1987). When community supervision has been granted and not revoked, the conviction cannot be characterized as final. Id.; Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App. 1986); Ex parte Payne, 618 S.W.2d 380, 381 (Tex. Crim. App. 1981). Because he is on community supervision, Richardson's remedy is under Article 11.08. Ex parte Renier, 734 S.W.2d at 361 n.14; Ex parte Twyman, 716 S.W.2d at 952. Thus, we find that the trial court had jurisdiction to consider his application for postconviction habeas corpus relief under Article 11.08.

      The State argues that the trial court did not have jurisdiction to hear the application because Article 11.08 is intended by its title to apply to situations where an accused is confined after indictment, yet prior to sentencing. We fail to understand the State's reasoning for this argument, and its brief provides little guidance. Therefore, we sustain Richardson's first point.

      Richardson's second point alleges the trial court erred in concluding that his trial counsel was not ineffective when counsel failed to file a notice of appeal that would assure him a meaningful appeal. His third point claims the trial court erred in concluding that he was not entitled to the requested habeas relief of an out-of-time appeal. The trial court must issue the writ of habeas corpus before it can hear the merits of the application. Ex parte Brown, 925 S.W.2d 111, 112 (Tex. App.—Amarillo 1996, no pet.); Ex parte Carter, 849 S.W.2d 410, 413 (Tex. App.—San Antonio 1993, pet. ref'd). A trial court's ruling is appealable only when the trial court issues the writ, rules upon the merits of the questions presented, and denies the relief sought. Id. Although the trial court found that it lacked jurisdiction, it entered findings and conclusions addressing the merits of the application. By doing so the trial court effectively granted the application, thus invoking our jurisdiction to review the findings and conclusions. Ex parte Hargett, 819 S.W.2d 866, 868-69 (Tex. Crim. App. 1991).

      We possess the ultimate power to decide matters of fact in habeas proceedings. Ex parte Brandley, 781 S.W.2d 886, 887-88 (Tex. Crim. App. 1989). However, we generally accept the trial court's findings if they are supported by the record. Id. Moreover, the trial court's ruling in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion. Ramirez v. State, 916 S.W.2d 32, 33 (Tex. App.—Houston [1st Dist.] 1995, no pet.). The applicant must show his entitlement to the relief sought. Id.

      When state law authorizes an appeal, a criminal defendant is entitled to the effective assistance of counsel throughout the appeals process. Evitts v. Lucey, 469 U.S. 387, 396-99 (1985); Ex parte Ridgeway, 438 S.W.2d 804, 805 (Tex. Crim. App. 1969); Shead v. State, 711 S.W.2d 345, 346-47 (Tex. App.—Dallas 1986), appeal after remand, 746 S.W.2d 19 (Tex. App.—Dallas 1988, pet. ref'd). An attorney is required to do all that is necessary to insure that a criminal defendant receives effective assistance of counsel on appeal. Shead, 711 S.W.2d at 347. We agree with Richardson that his counsel's failure to file a notice of appeal that complied with Texas Rules of Appellate Procedure deprived him of his right to the effective assistance of counsel on appeal. This failure resulted in the loss of a meaningful appeal of his conviction. Richardson's appropriate remedy is the granting of postconviction habeas corpus relief directing an out-of-time appeal. See Charles v. State, 809 S.W.2d 574, 576 (Tex. App.—San Antonio 1991, no pet.). We sustain Richardson's second and third points.

      We reverse and remand so that the trial court may render appropriate relief consistent with this opinion when our mandate issues.

                                                                                 REX D. DAVIS

                                                                                 Chief Justice

Before Chief Justice Davis,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed March 19, 1997.

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