Summary of Selected Opinions Released April 20, 2017

St. Cosmas Corp. v. Flores, No. 13-15-00017-CV (Memorandum Opinion by Justice Contreras; Panel Members: Justices Benavides and Longoria)

In this appeal from a default judgment, the Thirteenth Court of Appeals analyzed whether the appointed trial court judge who ruled on the case was disqualified.

Claudia Flores and Jorge Contla were married. During their marriage, Contla took out a second mortgage on the couple’s homestead and executed a lien in St. Cosmas’s favor for $100,000. The parties later divorced, and Flores was awarded the home subject to all liens and mortgages.

Eight months after the divorce decree, on August 19, 2014, Flores filed suit to quiet title to the land, claiming wrongful foreclosure by St. Cosmas. Flores argued that St. Cosmas lacked a valid lien on the land because Flores did not execute the second mortgage, and because St. Cosmas was not a legal entity at the time of the mortgage. Flores claimed that St. Cosmas did not maintain a registered agent in Texas and thus served St. Cosmas with citation for the suit by serving the Texas Secretary of State.

On October 1, 2014, Flores moved for a no-answer default judgment. Judge Arturo Cisneros Nelson granted the motion and entered default judgment against St. Cosmas. Soon thereafter, St. Cosmas filed an answer along with a motion for new trial, arguing that its registered agent was never served with service of process. The trial court held a hearing on the motion, at which Judge Nelson realized that he had personal ties to the sole shareholder and director of St. Cosmas. Judge Nelson recused himself and referred the case to the presiding judge in accordance with Texas Rule of Civil Procedure Rule 18a. St. Cosmas supplemented its motion for new trial to contend that the order denying the company’s motion for new trial was void due to Judge Nelson’s disqualification.

The presiding judge then appointed Judge Menton Murray on December 1, 2014, and the assignment was filed on December 3, 2014. On December 10, St. Cosmas filed an objection and alleged that it had not received actual notice of the appointment until December 4. Judge Murray denied St. Cosmas’s motion for new trial without ruling on the objection.

St. Cosmas appealed, arguing that (a) the default judgment issued by Judge Nelson was void due to his disqualification; and (b) Judge Murray was barred from hearing the case based on St. Cosmas’s timely objection.

Held: Judge Murray was disqualified from hearing the case based on St. Cosmas’s timely objection under Texas Government Code section 74.053. Judge Murray thus lacked jurisdiction to deny St. Cosmas’s motion for new trial. The trial court’s order was reversed and the cause remanded.

The Thirteenth Court of Appeals addressed only St. Cosmas’s dispositive second issue: whether Judge Murray was disqualified from hearing the case based on St. Cosmas’s timely objection.

St. Cosmas claimed that Judge Murray could not hear the case because St. Cosmas timely objected to his appointment.

If a judge recuses himself from a case, the presiding judge of the administrative judicial region must assign another judge. However, under Texas Government Code section 74.053, if a party files a timely objection to an assigned judge, the assigned judge “shall not” preside over the case. An objection is timely if it is filed before the earlier of 7 days after the party receives actual notice of the assignment or prior to the first hearing or trial. Each party can file one objection.

Here, St. Cosmas objected on December 10. Although the assignment was filed December 3, St. Cosmas’s objection included a sworn verification that the party did not receive actual notice until December 4. There was no indication of when St. Cosmas was served with the assignment, and no contradicting evidence in the record. Although St. Cosmas did not obtain a ruling on the issue, they did not waive it because a judge’s disqualification is jurisdictional. Thus, St. Cosmas’s objection was timely and Judge Murray was disqualified from hearing the case.

The Thirteenth Court of Appeals reversed Judge Murray’s order denying St. Cosmas’s motion for new trial.

Read the Full Opinion Here

Ex Parte Darlene Gail McKinney, No. 13-16-00197-CV (Memorandum Opinion by Justice Contreras; Panel Members: Justices Benavides and Hinojosa)

In this restricted appeal, the Thirteenth Court of Appeals analyzed whether the defendant could expunge her two DWI arrests when she received unsupervised deferred adjudication for one offense, and pleaded to a lesser, tangentially related charge for the other.

Darlene McKinney was arrested for DWI in 1998, and accepted a plea bargain from the State to plead guilty to the lesser charge of reckless driving. The court placed McKinney on deferred adjudication for nine months, with a handwritten note attached to the judgment indicating that the probation would be unsupervised.

McKinney was again arrested for DWI in 2013. McKinney pleaded nolo contendere to the offense of failing to drive within a single lane on a multi-lane road—which occurred on the same day as her DWI arrest—and was sentenced to pay a fine and court costs. The State then dismissed the DWI charge.

On March 16, 2015, McKinney petitioned to expunge her two DWI arrests. The Texas Department of Public Safety filed an answer, claiming that expunction was not permitted because (a) the 1998 arrest resulted in community supervision, and (b) the 2013 arrest resulted in a conviction. The trial court held a hearing on the expunction, and McKinney testified that she pleaded guilty in 1998 only because her attorney told her that the unsupervised nature of the visitation made the arrest eligible for expunction. Regarding the 2013 incident, McKinney argued that the resulting conviction did not stem from her arrest. A Cameron County assistant district attorney argued against expunction at the hearing, but the Department did not provide a separate representative. After an additional hearing on the matter, the trial court expunged both arrests.

The Department filed a restricted appeal, but McKinney did not file a brief in response.

Held: McKinney’s arrests did not qualify for expunction because she was placed on community supervision as a result of her 1998 arrest, and was convicted of another offense as a result of her 2013 arrest. The trial court’s order was reversed and remanded.

To qualify for a restricted appeal, the Department was required to show, (1) it was a party but did not participate in the hearing resulting in the challenged judgment; (2) it appealed within six months of the date the judgment was signed; (3) it did not file any post-judgment motions; and (4) error was apparent on the face of the record.

Here, the Department was a party to the case, filed a restricted appeal within six months of the expunction, and did not file any post-judgment motions. Although the assistant district attorney argued against expunction at the relevant hearings resulting in the expunction, the courts construe the nonparticipation requirement liberally in favor of the right to appeal. Thus, for purposes of the nonparticipation element of restricted appeal, the Department did not participate in the hearing resulting in the challenged judgment.

The Thirteenth Court of Appeals then analyzed the alleged error on the face of the record. The court reiterated that a petitioner is entitled to an expunction if he demonstrates that he has met the statutory requirements: that he has been arrested for a felony or misdemeanor, has been released, the charge is no longer pending, and the arrest did not result in a final conviction or court-ordered community supervision. “Court-ordered community supervision” includes deferred adjudication.

Applying these requirements to McKinney’s arrests, the court noted that the 1998 DWI arrest resulted in a reckless driving charge for which McKinney received community supervision. In contrast to the alleged advice of McKinney’s attorney, the unsupervised nature of McKinney’s deferred did not change its characterization as “court-ordered community supervision” for purposes of expunction.

Similarly, McKinney’s 2013 arrest resulted in a conviction for failure to drive in a single lane. Although this charge was not a lesser-included offense of DWI, it nonetheless stemmed from the same 2013 arrest.

The Thirteenth Court of Appeals thus held that McKinney’s arrests were not expungable under the Texas Code of Criminal Procedure. The erroneous expunction constituted error apparent on the face of the record. The trial court’s order to expunge was reversed and rendered.

Read the Full Opinion Here