Opinions Released January 26 ,2017

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.

In re L.D.J. III, A.Y.J., W.F.J., & C.J., No. 13-15-00099-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)

In this appeal from an order appointing a paternal grandmother as sole managing conservator of her grandchildren, the Thirteenth Court of Appeals demonstrated the strength of the presumption in favor of natural parents as conservators.

Blanca met Dean Jones in Mexico, then immigrated to the United States to marry Dean and live with him in McAllen. Blanca gave birth to three children in the United States. While pregnant with the couple’s fourth child, Blanca travelled back to Mexico to obtain a visa. However, Blanca was denied a visa due to her prior illegal residence in the United States. In Blanca’s absence, Dean’s mother, Helen, began taking care of the children in McAllen. Later, Helen purchased a home in Fredericksburg and moved the children there to live with her. Blanca kept in contact with Dean throughout this time, but not with Helen.

One year after Blanca’s visa was denied, Dean petitioned the United States Attorney General for a visa based on the extreme hardship that Blanca’s absence created for him. The Attorney General granted the visa, but Blanca was required to wait fourteen months before returning to the United States legally. Upon Blanca’s return, she reunited with her three oldest children, but allowed two of them to remain with Helen in Fredericksburg to finish the school year. When the children were released for summer break, Blanca and Dean returned to Fredericksburg to retrieve the children and bring them back to McAllen. Blanca began the trip back to McAllen with the kids, but Dean stayed an extra day with Helen in Fredericksburg and committed suicide.

Soon after Dean’s death, Helen secured an order granting her possession of the children. Ultimately, the trial court held a bench trial and appointed Helen as the sole managing conservator, finding that it was in the best interests of the children, that Blanca “voluntarily relinquished” custody of the children to Helen while she was absent from the country, and that Blanca would impair the physical health or emotional development of the children. Blanca appealed.

Held: The trial court abused its discretion by appointing Helen as sole managing conservator rather than the children’s natural parent, Blanca. The judgment was reversed and the case remanded.

The Thirteenth Court of Appeals reviewed the trial court’s order for an abuse of discretion.  

Foreshadowing the holding, the court began by noting that awarding conservatorship to a natural parent is presumed to be in the best interest of the children (the “parental presumption”), and that the nonparent carries a heavy burden to rebut this presumption. Under Texas Family Code section 153.131, the nonparent must establish at least one of two circumstances: (1) the natural parent voluntarily relinquished custody of the children to the nonparent for at least a year, or (2) that the parent would significantly impair the children’s physical health or emotional development. Blanca claimed that there was no evidence to show either circumstance in her case.

First, the Thirteenth Court analyzed whether Blanca “voluntarily relinquished” custody and possession of her children. Although Helen had custody of the children while Blanca was in Mexico, Blanca released custody to Dean rather than to Helen. However, a parent’s relinquishment of custody to another parent does not rebut the parental presumption.  Blanca kept in contact with Dean—rather than Helen—while she was in Mexico, and reunited with her children soon after returning to the United States. Thus, Blanca did not voluntarily relinquish care, custody, or control of her children to Helen.

Next, the court examined whether Blanca’s appointment as sole conservator would significantly impair the children’s health or development. Generally, court’s apply this statutes in situations of abuse, neglect, or abandonment. However, there was no evidence that Blanca abused the children, neglected the children, or intended to abandon them when she was forced to temporarily live in Mexico. Although Helen offered evidence that the children were “better off” living with her in Fredericksburg, this was insufficient to rebut the parental presumption.

Since neither situation described in section 153.131 was present, the trial court abused its discretion by appointing Helen as conservator rather than the children’s natural parent, Blanca. The trial court’s judgment was reversed and the cause remanded.

Read the Full Opinion Here


Kaelin v. Crago, No. 13-16-00226-CV (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Benavides and Hinojosa)

In this appeal from a judgment awarding damages and denying a plea to the jurisdiction, the Thirteenth Court of Appeals reaffirmed that the presentment requirement in Texas Local Government Code section 89.004 is not jurisdictional.

In 2007, Rose Crago obtained a judgment against David Crago and secured a writ of execution on David’s real property. The writ was issued for approximately $145,000 in 2012 and delivered to the sheriff, Jim Kaelin. However, Kaelin did not execute the writ.

In 2014, Rose filed a petition alleging that Kaelin was liable, in his official capacity, for damages due to his failure to execute the writ. In 2016, Kaelin filed a plea to the jurisdiction, alleging that section 89.004 of the Texas Local Government Code required Rose to present her claim to the commissioners’ court and allow the court 60 days to pay the claim. Without such presentment, Kaelin claimed that the trial court lacked jurisdiction. Rose argued that the requirement was not jurisdictional and had been waived. The trial court agreed with Rose, denied the plea to the jurisdiction, and awarded Rose approximately $145,000 in damages.

Kaelin appealed.

Held: Section 89.004 is not jurisdictional, and Rose Crago offered more than a scintilla of evidence to support the damages award. The trial court’s judgment was affirmed.

The Thirteenth Court first rejected Kaelin’s argument that section 89.004 was jurisdictional by referencing the court’s prior opinions in Cameron County v. Tompkins, 422 S.W.3d 789 (Tex. App.—Corpus Christi 2013, pet. denied), and Forge v. Nueces County, 350 S.W.3d 740 (Tex. App.—Corpus Christi 2011, no pet.). In both cases, the Thirteenth Court disagreed with its sister courts by holding that the section 89.004 presentment requirement was a mandatory, but not a jurisdictional, condition precedent to a suit against a county official. Kaelin’s first point of error was thus overruled.

Turning to the damages issue, Kaelin argued that the trial court erred in assessing damages without evidence of actual damages. Under Texas Civil Practice and Remedies Code section 34.065, the plaintiff has the burden to prove actual damages, i.e., the amount the property would have sold for at the sheriff’s auction less any costs of sale. Here, Rose presented a realtor’s testimony as to the fair market value of the property based on comparable sales in the area between 2011 and 2013. The Thirteenth Court noted that the fair market value of a property represents the price agreed to by a willing buyer and a willing seller. This evidence was legally sufficient to support the trial court’s award of damages. Thus, Kaelin’s second point of error was also overruled.

Read the Full Opinion Here