Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of December 13, 2010

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.

Town Hall Estates - Arlington, Inc., No. 02-10-00185-CV (Dec. 16, 2010) (Walker, J., joined by Gardner and Gabriel, JJ.).

Held: A claimant who nonsuits a healthcare liability claim asserted against a particular healthcare provider and subsequently refiles the same healthcare liability claims against the same healthcare provider does not restart the 120-day time period for the service of an expert report and curriculum vitae on that healthcare provider.

Walp v. Williams, No. 02-09-00444-CV (Dec. 16, 2010) (Gabriel, J., joined by Walker, J.; Dauphinot, J., concurs with opinion).

Held: An inmate's application for writ of habeas corpus challenging the loss of good-time credit is not a civil action for purposes of serving as the basis for a finding that the inmate is a vexatious litigant under section 11.054(1) of the civil practice and remedies code. Under Texas law, an application for habeas relief under article 11.07 is not a civil action that an inmate may be prohibited from filing if that inmate has been declared a vexatious litigant under section 11.054. We therefore conclude that if an article 11.07 habeas proceeding is not a civil action that an inmate would be prohibited from filing if he has been found to be a vexatious litigant under chapter 11, then neither can it be a civil action for purposes of finding the inmate to be a vexatious litigant in the first place. We further conclude that if an application for habeas relief under federal law challenges an inmate's confinement, then the court of criminal appeals's characterization of the proceedings as criminal still applies.

Concurrence: The majority should expressly hold that Appellant's applications for habeas relief, which challenged the loss of good-time credit, were challenges to his confinement.

Vinson Minerals, Ltd. v. XTO Energy, Inc., No. 02-08-00453-CV (Dec. 16, 2010) (Gardner, J., joined by Walker, J.; Livingston, C.J., concurs with opinion).

Held: The trial court did not abuse its discretion by excluding from the summary judgment evidence a letter written as part of settlement negotiations. In addition, Appellants presented no evidence that they provided Appellee with a proper written notice or demand for payment as required by the oil and gas leases. Therefore, summary judgment for Appellee was proper.

Concurrence: The concurrence would hold that the demand portion of a letter was admissible under rule 408. Tex. R. Civ. P. 408. But the concurrence argues that the alleged notice of the possibility of forfeiture is insufficient.

Ex parte Dangelo, Nos. 02-09-00266-CR, 02-09-00268-CR (Dec. 16, 2010) (op. on reh'g) (Livingston, C.J., joined by McCoy, J.; Dauphinot, J., concurs with opinion).

Held: Appellant has a right under the Fifth Amendment to the United States Constitution to not answer polygraph questions to the extent that doing so could provide a link in the chain to criminal charges independent of the bodily injury to a child offense that he is serving community supervision for. U.S. Const. amend. V; see Minnesota v. Murphy, 465 U.S. 420, 422-35, 104 S. Ct. 1136, 1139-46 (1984). Appellant does not have a Fifth Amendment right to not answer a polygraph question that asks only about violations of his community supervision that could not lead to independent criminal charges. See Murphy, 465 U.S. at 435 n.7, 104 S. Ct. at 1146 n.7. Because the State has conceded that it cannot prosecute appellant in any future criminal proceeding for the alleged facts related to the sex-related offenses that he was originally indicted for, he does not have a Fifth Amendment right to refuse to discuss those alleged facts.

Appellant's complaint about the trial court's requiring him to attend sex offender counseling generally, when he has not been convicted of a sex-related offense, concerns the trial court's allegedly exceeding its statutory authority, not constitutional issues. Thus, that complaint is not cognizable in a habeas corpus proceeding under article 11.072 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(c) (Vernon 2005).

Concurrence: The record before us does not describe the four discrete acts alleged in the indictment with sufficient specificity to prevent future prosecution and potential double jeopardy violations.

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