Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of August 5, 2013

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 A.B. and H.B., No. 02-11-00209-CV -Opinion, 02-11-00209-CV -Dissenting (Aug. 8, 2013) (op. on reh'g en banc) (per curiam) (Walker, J., dissents with opinion, joined by Dauphinot, J.).

Held:  The evidence is legally and factually sufficient to support the jury's findings supporting termination of Father's parental rights to the children. The foster parents had standing to intervene because of their substantial past contact with the children, and their intervention did not violate Father's due process rights because DFPS's burden of proof remained the same. The trial court did not abuse its discretion by prohibiting Father from cross-examining a CPS witness about his polygraph results.

Dissent:  Applying the appropriate factual sufficiency standard of review, as this court did in A.B. 1 and A.B. 2, the evidence remains factually insufficient to support termination of Father's parental rights under family code section 161.001(1)(E).

BNSF Ry. Co. v. Wipff, No. 02-12-00204-CV (Aug. 8, 2013) (Gabriel, J., joined by Gardner and Meier, JJ.).

Held:  BNSF's counsel demanded a jury shuffle after veniremembers' completed questionnaires had been reviewed but before Rule 226a instructions were given. The trial court denied the shuffle demand as untimely. Because a shuffle was demanded before voir dire began, the trial court erred under Rule 223 by denying the demand under Rule 223. Harm is presumed from the error. Even if harm is not presumed, BNSF showed that the erroneous denial of the shuffle resulted in a materially unfair trial. Case reversed and remanded for a new trial.

Strange v. Lindemann, No. 02-12-00415-CV (Aug. 8, 2013) (Livingston, C.J., joined by Walker and McCoy, JJ.).

Held:  The trial court did not err by granting summary judgment for Appellee because Appellant's suit was a collateral attack on a prior judgment rather than an attempt to collect the prior judgment. As such, it was barred by res judicata.

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