Tenth Court of Appeals To Convene At Baylor Law School March 4March 2, 2009
The three justices of the Tenth Court of Appeals, Waco, will visit Baylor Law School on Wednesday, March 4, to hear oral arguments in three cases. The hearings, which are open to students and the public, will be held in the Jim Kronzer Appellate Advocacy Classroom and Courtroom (Room 127) in the Sheila and Walter Umphrey Law Center on the Baylor University campus.
The court bench will include Chief Justice Thomas W. Gray, a 1985 Baylor Law School graduate; Justice Felipe Reyna, who is a 1972 Baylor law graduate; and Justice Rex Davis, a 1974 graduate of Baylor Law School.
The justices will begin hearing oral arguments at 9:15 a.m. The proceedings will begin with the Appellant and Appellee, who will each have 15 minutes to argue. The Appellant then will have a five-minute rebuttal. Students and the public may come and go quietly and without disruption, even during an argument. However, if this becomes a problem, the court may limit entry and exit to times only when no attorney is speaking from the lectern. Any person attending and their belongings will be subject to inspection, including physical inspection or sweep with a magnetometer for security purposes.
Established in 1923, the Tenth Court of Appeals hears criminal and civil appeals from lower courts in 18 Texas counties.
NOTE TO NEWS EDITORS: Following are case synopses for the three scheduled cases to be heard by the court. The synopses should not be relied upon nor used for any purpose other than to provide individuals who will attend the oral arguments with a general understanding of the facts and issues of each case.
No. 10-09-00005-CV, IN RE WILLIAM CARROLL ROBERTSON AND LESTER EUGENE ROBERTSON
William Carroll Robertson and Lester Eugene Robertson originally brought suit against W.T. Hix, William J. Hix and R. Coke Mills in 1990. They sought a declaratory judgment, asking the Court to find that a portion of a lake formed from Hog Creek on the Hix property could be accessed by the Robertsons and to enjoin defendants from prohibiting such access. Hog Creek is not factually navigable, and Hix owns the streambed of the creek where it crosses his property.
In 2005, Donald Adams joined the Robertsons as a plaintiff. The Robertsons then moved for summary judgment against Hix. The presiding judge granted the Robertsons' motion, finding the waterway in question was a navigable stream as defined by Article 21.001 of the Texas Natural Resources Code, and as such, the public were entitled to use the creek and lake where it crosses the Hix property. The judge also entered an injunction against defendants from interfering with this access and use of the creek and lake.
Hix appealed the judgment to the 10th Court of Appeals. The 10th Court of Appeals modified and affirmed the judgment of Judge Miller. Hix then petitioned the Supreme Court of Texas to review the case, and Coryell County filed an amicus brief in support of Hix's petition for review. One of Hix's arguments was that the original judgment was not a final judgment because all parties and all claims had not been disposed of. The petition was denied.
Following the Supreme Court's denial of the petition, on July 25, 2008, the 10th Court of Appeals issued its mandate to enforce its earlier ruling, ordering the 52nd District Court "to observe the order of said Court of Appeals in this behalf, and in all things to have it duly recognized, obeyed and executed."
Following issuance of the mandate, defendants filed a Motion to Abate and a Motion to Stay Execution of the Judgment with the 52nd District Court. Coryell County filed a Motion to Intervene in the suit and a Motion to Abate.
The presiding Judge Lykes (newly assigned) granted all the motions of defendants and Coryell County. The judge ruled that Coryell County was a necessary party to the suit and that defendants and Coryell County's motions to abate should be granted "until all necessary parties are noticed and joined in said suit." The judge also granted Hix's motion staying execution and enforcement of the judgment for an indefinite period.
On January 5, 2009, the Robertsons filed their petition for writ of mandamus, requesting the 10th Court of Appeals to set aside the rulings of Judge Lykes and further requesting the Court of Appeals to instruct Judge Lykes to comply with its July 25, 2008 Mandate. Hix and the County argued that the original judgment was not a final judgment and, therefore, the District Court could continue with adjudication of the case.
No. 10-08-00039-CR, ELTON PAUL COLOMB, JR., Appellant v. THE STATE OF TEXAS, Appellee
Elton Paul Colomb, Jr. was arrested for taking a toolbox and tools from a friend's van while it was parked at Wal-Mart in Hillsboro. He was charged with theft of property valued at less than $1,500, elevated to a state jail felony by two earlier theft convictions, and to a second degree felony by two previous felony convictions.
Colomb was appointed counsel but filed motions asking to represent himself. After a hearing, the court allowed Colomb to represent himself. All preliminary hearings were conducted by the District Judge. The jury trial was conducted by the Judge of the Hill County Court at Law. After a jury trial, Colomb was convicted and sentenced by the court to 15 years in prison and a $2,000 fine.
Colomb presents five issues on appeal:
The judge of the Hill County Court at Law was not qualified to conduct the jury trial of this cause.
The trial court erred in proceeding to trial without appointed counsel, who never was removed from the cause.
In the alternative, and not waiving prior issues, Colomb's decision to dispense with counsel was not made knowingly, intelligently, and voluntarily with full understanding of the right to counsel and with proper admonishments.
Colomb received ineffective assistance of counsel.
The trial court abused its discretion by failing to grant Colomb a continuance on the day of trial, and the error was not harmless.
No. 10-08-00324-CV, McLENNAN COUNTY AND RAY MEADOWS, Appellants v. RANDOLPH VEAZEY AND DEBRA VEAZEY, Appellees
Randolph and Debra Veazey filed this lawsuit against McLennan County and McLennan County Commissioner, Ray Meadows. This lawsuit arises from the Veazeys' attempt to move a section of a house down Culpepper Lane, a County road. The house became lodged and blocked the road. A private wrecker service was called by the Texas Department of Public Safety to remove the house. The Veazeys allege that the County is liable for damage to the house resulting from the alleged actions of the wrecker service, claiming that Meadows was responsible for the wrecker service moving the house.
The County and Meadows filed their Plea to the Jurisdiction and Alternative Motion for Summary Judgment on the ground that the trial court lacked subject matter jurisdiction because the County and Meadows in his official capacity were immune from suit on the ground of governmental immunity. The County argued that the pleadings and proof established that it did not operate the wrecker. The County also argued that it did not exercise operational control over the wrecker or how the wrecker service did its job (and, thus, the claim did not fall within the limited waiver of governmental immunity under the Texas Tort Claims Act for damages caused by the negligent operation of motor-driven equipment). The Veazeys argued that the actions of the County, through Meadows, brought this case within the Tort Claims Act's waiver of governmental immunity because Meadows "operated or used" a motor vehicle or motor-driven equipment by controlling the actions of the wrecker in allegedly instructing the wrecker operator how to back up, etc., which caused damage to the house.
The County argued that any alleged statements by Meadows would not constitute operation or use of the wrecker, and that the wrecker was already following the directive of the Texas Department of Public Safety to move the house, so that any alleged statements by Meadows could not have been the proximate cause of the damage.
The trial court denied the County's and Meadows' Plea to the Jurisdiction, but dismissed the case against Meadows individually. The County and Meadows in his official capacity appeal the trial court's denial of their Plea to the Jurisdiction.