Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 04, 2011

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.

In re Dacus,   No. 02-10-00420-CV    (Apr. 4, 2011)   (Gardner, J., joined by Walker and Meier, JJ.).

Held:   Petitions for writ of mandamus and prohibition conditionally granted directing Respondent trial court to dismiss with prejudice the State's 2008 murder indictment against Relator due to violation of the Interstate Agreement on Detainers Act.

Russell v. State,   Nos. 02-10-00161-CR,    02-10-00162-CR    (Apr. 7, 2011)   (Meier, J.; Dauphinot, J., concurs with opinion; Gabriel, J., concurs without opinion). [Note: Both opinions are at the same link in one document.]

Held:   Appellant failed to preserve for appellate review his argument that his fifteen-year sentences violate the Eighth Amendment's prohibition against grossly disproportionate sentences.

Concurrence:   For the reasons expressed in my concurrence to the majority opinion in Laboriel-Guity v. State and in my concurring and dissenting opinion to the majority opinion in Kim v. State, I would hold not that Appellant failed to preserve his argument but that the record does not support it.

TDI Industries, Inc. v. Citicorp N. Am., Inc., Denton,   No. 02-10-00030-CV    (April 07, 2011)   (Meier, J., joined by Walker, J.; Dauphinot, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]

Held:   The negligence claims alleged against Appellant are both claims for damages arising out of the provision of professional services by a licensed or registered engineer and claims for negligent acts, errors, or omissions arising out of the provision of engineering services; thus, under former Texas Civil Practice and Remedies Code section 150.002, Appellee was required to file a certificate of merit with its claims against Appellant. Having failed to file a certificate of merit, Appellee's claims against Appellant should have been dismissed. Additionally, whether a certificate of merit is required is determined solely by looking at the pleadings to ascertain the nature of the claim and not at discovery between the parties. The trial court abused its discretion by denying Appellant's motion to dismiss Appellee's claims against Appellant.

Dissent: Because Appellee did not assert claims for damages arising out of the provision of professional engineering services, no certificate of merit was required.

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