Opinions Released October 27, 2016

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

B&T Towing, LLC v. Sherwood, No. 13-16-00499-CV (Memorandum Opinion Per Curiam; Panel Members: Chief Justice Valdez, Justice Rodriguez, Justice Benavides)

In this petition for permissive interlocutory appeal, the Thirteenth Court of Appeals reviewed the requirements for a such permissive appeals.

B&T Towing sued Nueces County Constable Robert Sherwood in his individual capacity for ultra vires acts, including tortious interference with a contract and with prospective relations as well as conspiracy in restraint of trade. B&T also filed for a writ of mandamus to compel Sherwood in his official capacity to follow the Commissioners Court’s rules regarding maximum fees for towing.

Sherwood filed a motion to dismiss B&T’s intentional tort claims, asserting that Texas Civil Practice and Remedies Code section 101.106(f) required B&T to sue Nueces County rather than Sherwood. The trial court granted the motion, dismissing the tort claims against Sherwood.

B&T then moved for a permissive interlocutory appeal, which the trial court granted on the ground that there were two controlling questions of law as to which there could be a substantial difference of opinion.

Held: Neither question of law met the necessary requirements for permissive interlocutory appeal. The petition was denied and the appeal dismissed for want of jurisdiction.

The Thirteenth Court first outlined the procedural and jurisdictional requirements for a permissive appeal. Under Texas Civil Practice and Remedies Code section 51.014, a trial court may allow a permissive interlocutory appeal if there is substantial ground for difference of opinion on a controlling question of law. Whether substantial ground for disagreement exists depends on several factors, including whether (a) the question is novel or difficult, (b) controlling case law is doubtful, (c) the courts of appeals disagree on the issue, and (d) there is a lack of case law on the issue.

If the trial court analyzes these facts and wishes to grant a permissive appeal, Texas Rule of Civil Procedure 168 requires the court to issue an order clearly identifying the controlling question of law and why appellate review would “materially advance the ultimate termination of the litigation.” Rule 28.3 of the Texas Rules of Appellant Procedure then requires the petitioner to argue and establish the grounds for appeal in its petition for permissive appeal, showing that the appeal satisfies both section 51.014 of the Texas Civil Practice and Remedies Code, and Rule of Civil Procedure 168.

The first controlling question of law B&T appealed from involved what test the trial court should use to determine if section 101.106(f) applied. Texas Civil Practice and Remedies Code section 101.106(f)—part of the Texas Tort Claims Act (“TTCA”)—provides that a suit permitted by the TTCA for common-law negligence committed by a governmental employee within the course and scope of his employment must be brought against the government, rather than the employee. Immunity should not be determined until after the plaintiff has complied with section 101.106(f).

B&T claimed that the trial court erred in determining whether section 101.106(f) applied based on the following two factors: (1) whether Sherwood’s relevant conduct was in the scope of his employment, and (2) whether suit could have been brought against the County under the TTCA. B&T argued that the court should instead use the test for official immunity. However, the Thirteenth Court held that the trial court’s two-factor test is expressly contemplated in section 101.106(f). B&T offered no authority to support use of the official immunity test, and such test is generally inapplicable until after the parties have complied with section 101.106(f). Thus, not only did the trial court apply the law properly, but the issue is neither novel nor difficult, nor is case law doubtful, absent, or conflicting. The question was not a one on which there is substantial ground for difference of opinion.

Regarding the second controlling question of law, B&T’s characterization of the question in its petition for permissive appeal did not match that in the trial court’s order. Specifically, B&T framed the question as, “Can a government official be liable for retrospective damages in his individual capacity when ultra-vires acts are alleged?” The trial court however, granted permissive review on the question of, “[W]hat, if any, effect does Plaintiff’s ultra vires claim against Defendant Sherwood in his official capacity have on the [c]ourt’s analysis of Defendant Sherwood’s right to relief under 101.106(f).” Thus, neither Rule 168 or Rule 28.3 had been satisfied to permit review; the question was inadequately briefed.

Read the Full Opinion Here

Castellanos v. Texas, No. 13-14-00524-CR (Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)

In this appeal from a conviction for Class A DWI with a BAC of 0.15 or more, the Thirteenth Court of Appeals decided—for the first time—whether the “BAC of 0.15 or more” finding is an element of the crime, or an enhancement.

Katharine Castellanos was arrested for DWI after almost colliding with a police officer cruiser while exiting a parking lot and showing signs of intoxication. The police officer then took Castellanos to a nearby hospital for a blood sample, revealing a blood alcohol content (“BAC”) of 0.19; more than twice the legal limit. Thus, rather than charging Castellanos with a generic Class B misdemeanor DWI, Castellanos was charged with Class A DWI with a BAC of 0.15 or more.

Castellanos filed a motion to suppress the blood draw based on the unsanitary conditions at the hospital, but the trial court denied her motion. A jury convicted Castellanos of DWI, and sentencing was decided by the court. The trial court entered findings that Castellanos had a BAC over 0.15 as an enhancement to the DWI offense, and sentenced her to one year of probation.

Castellanos appealed, challenging the denial of her motion to suppress and asserting ineffective assistance of counsel. Castellanos also challenged her conviction for Class A DWI, arguing that the “BAC of 0.15 or more” finding is an element of the offense rather than an enhancement.

Held: Castellanos’ motion to suppress was properly denied, and thus her ineffective assistance of counsel claim was moot. However, Castellanos was erroneously convicted of Class A DWI without a jury finding regarding her BAC level, which is an element of the offense. Thus, the conviction was modified, the punishment reversed, and the case remanded.

Motion to suppress

Castellanos first challenged her blood draw, arguing that the State failed to prove that the area of the hospital where her blood was drawn was sanitary as required by Texas Transportation Code section 724.017. The Thirteenth Court noted that, as the defendant, Castellanos bore the initial burden to produce evidence of a violation warranting suppression. The State was not required to show compliance with the statute until Castellanos met her burden.

Here, a police officer testified at the suppression hearing that the blood was taken at a hospital, that such hospital was closed to the public, and that the area was sanitary. Castellanos however, testified that it did not appear clean, and that she did not see any cleaning utensils or janitors in the building. The trial court reasonably held, based on the officer’s testimony, that the hospital was sanitary, and such trial court determinations of the facts and rulings on questions of mixed law and fact are given “almost total deference.”  Thus, the motion to suppress was properly denied.

Ineffective assistance of counsel

Castellanos’ second issue—ineffective assistance of counsel—was based on her trial counsel’s waiver of the alleged suppression error. Since Castellanos’ motion to suppress was properly denied, her ineffective assistance of counsel assertion was moot.

BAC of 0.15 or more

Castellanos next argued that the BAC finding was an element of Class A DWI rather than an enhancement, and thus should have been determined by the jury during the guilt/innocence phase of her trial. Without such a jury determination, Castellanos argued that the jury’s findings only supported a conviction for Class B DWI.

The Thirteenth Court of Appeals noted that it has not yet determined whether the “BAC of 0.15 or more” finding is an element or an enhancement. An element is part of the substantive offense, involving the forbidden conduct, culpability, and result that are required for conviction. An enhancement however, simply increases the punishment range, but does not change the nature or degree of the offense.

Looking to the plain language of the statute, the Thirteenth Court held that the “BAC of 0.15 or more” finding was an element of the offense. In doing so, the Thirteenth Court reiterated and adopted the Fourteenth Court of Appeals’ interpretation in Navarro v. State. 469 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). There, the Houston Court noted that the BAC finding changed the degree of the offense from a Class B to a Class A misdemeanor, and prohibited a specific type of forbidden conduct: driving while especially intoxicated. The Thirteenth Court agreed with these observations.

Thus, since the jury was not asked to issue a finding regarding Castellanos’ BAC, the trial court erred by convicting her of a Class A, rather than a Class B, misdemeanor. The trial court’s judgment was modified, the punishment reversed, and the case remanded for a new punishment hearing.

Read the Full Opinion Here