Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 30, 2009

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 D.E.H.,   No. 02-07-00347-CV    (Dec. 3, 2009)   (op. on en banc reconsideration) (Holman, J., joined by Cayce, C.J., McCoy and Meier, JJ.; Livingston, J., dissents with opinion; Walker, J., concurs and dissents with opinion, joined by Dauphinot and Gardner, JJ.).  [Note: All three opinions are at the same link in one document.]

Held:   Appellant did not preserve for appellate review her argument that the trial court abused its discretion by denying her motion for new trial because her argument on appeal does not comport with the arguments that she made in her original motion for new trial, in her amended motion for new trial, or at the hearing on her motion for new trial. Even if Appellant had preserved her argument for appeal, the trial court did not abuse its discretion by denying her motion for new trial because Appellant failed to demonstrate by a preponderance of the evidence that her execution of the affidavit of relinquishment in exchange for an allegedly legally unenforceable promise resulted from fraud, duress, or coercion as contemplated by family code section 161.211(c).

Dissent:    Appellant preserved her complaint that she did not execute the affidavit of relinquishment voluntarily. In determining the merits of her complaint, we should adopt the standard advocated by the Texas supreme court plurality in L.M.I.—that due process requires the proponent of the affidavit to prove, by clear and convincing evidence, that it was executed voluntarily. Under that standard, appellant should prevail in her challenge to the voluntariness of the affidavit.

Concurrence and Dissent:   E.L. preserved her appellate complaint that her affidavit of relinquishment was not executed voluntarily. The parties’ mediated settlement agreement, which included provisions for post-termination visitation, is legally enforceable under family code section 153.0071(d). Because there has been no showing that the foster parents have violated the agreement, the trial court therefore did not abuse its discretion by denying E.L.’s motion for new trial.

Howlett v. Tarrant County,   No. 02-07-00373-CV    (Dec. 3, 2009)   (op. on reh’g) (Gardner, J., joined by Cayce, C.J.; Walker, J. concurs with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   Howlett’s timely-filed motion to reinstate under rule 165a extended the deadline to file a notice of appeal, even though the trial court did not dismiss the underlying claim for want of prosecution under rule 165a; a party asserting a Tort Claims Act claim against a county must furnish both the presuit notice required by Tort Claims Act section 101.101 and the postsuit notice required by local government code section 89.0041; local government code section 89.0041 applies to all suits against counties and is not limited to suits arising out of contracts; and Howlett substantially complied with local government code section 89.0041 where the county judge of Tarrant County was served with written notice of Howlett’s suit before the 30th day after suit was filed (by serving the original petition on the county judge) as directed by section 89.0041(a)(1) and the County and its employee received actual knowledge of each item required to be included in the postsuit notice under local government code section 89.0041(b).

Concurrence:   In light of the majority’s holding that Howlett substantially complied with section 89.0041 of the Texas Local Government Code, the majority’s analysis of Dallas County v. Coutee, 233 S.W.3d 542 (Tex. App.—Dallas 2007, pet. denied), and of the scope of applicability of section 89.0041 are dicta.

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