Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of October 16, 2006

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Astoria Indus. of Iowa, Inc. v. SNF, Inc. d/b/a Brand FX Body Co., No. 02-05-00315-CV (Oct. 19, 2006) (Cayce, C.J., joined by Livingston and McCoy, JJ.).: Held: We have jurisdiction over Astoria's interlocutory appeal of the trial court's order denying Astoria's motions for summary judgment on Brand FX's business disparagement and Lanham Act false advertising claims. Whether a publication is an expression of opinion protected by the First Amendment or an actionable statement of fact is a question of law that is subsumed within the first element of a business disparagement and a false advertising claim. Therefore, the trial court's order is appealable under civil practice and remedies code section 51.014(a)(6) because Astoria's motions for summary judgment were based in whole or in part on a claim or defense arising under the First Amendment. The scope of our appellate jurisdiction is, however, limited to reviewing the portion of the trial court's order related to the First Amendment and does not extend to the part of the trial court's order that does not implicate free speech.
In The Matter of S.M., No. 02-05-00262-CV (Oct. 19, 2006) (Holman, J.; Livingston, J. concurs with opinion, joined by Dauphinot, J.).: Held: Because juvenile transfer hearing under family code section 54.11 is not a stage of a criminal prosecution, right to confrontation under Crawford v. Washington does not apply to admission of reports from Texas Youth Commission.; Concurrence: Section 54.11(d), which allows the trial court to consider written reports from probation officers, professional court employees, professional consultants, or employees of the Texas Youth Commission at a transfer hearing on only one day's notice to the juvenile's attorney, conflicts with the Sixth Amendment's Confrontation Clause. Although a transfer hearing is not a “criminal prosecution,” the potential magnitude of the result of such a hearing requires greater protection of a juvenile's confrontation right than section 54.11 affords.