Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of December 12, 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 Lewis,   No. 02-11-00253-CV    (Dec. 9, 2011)   (Gardner, J., joined by McCoy, J.; Meier, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The trial court abused its discretion by finding that maternal grandparents had standing to intervene in a suit affecting the parent-child relationship. Under family code section 102.004(a)(2), when both parents have been appointed joint managing conservators, the parent-managing conservators are collectively "the managing conservator," and each of the parent-managing conservators must consent to the grandparents' intervention before the grandparents have standing. Any language to the contrary in this court's prior opinions is nonbinding dicta.

Dissent:   If the legislature had intended the phrase "the managing conservator" to include more than one person, then it could have written the statute differently, but it did not. And this court has previously reasoned that a grandparent has standing to seek appointment as a child's managing conservator under "the managing conservator" provision of family code section 102.004(a)(2) when only one managing conservator consents to the grandparent's suit, even if there is more than one managing conservator.

In re J.R.J.,   No. 02-11-00417-CV    (Dec. 15, 2011)   (Gardner, J., joined by Dauphinot and McCoy, JJ.).

Held:   The trial court interfered with the court of appeals's jurisdiction and therefore abused its discretion by ordering counsel for Relator not to file a notice of appeal until Relator communicated his desire to appeal the judgment terminating his parental rights.

EOG Res., Inc. v. Hurt,   No. 02-11-00093-CV    (Dec. 15, 2011)   (Meier, J., joined by Livingston, C.J., and Gabriel, J.).

Held:   Hurt is not a third-party creditor beneficiary of the oil and gas lease agreement between EOG and SIC, and Hurt waived his cross-issue for appellate review because the evidence did not conclusively prove that the oil and gas lease agreement terminated ipso facto under the provisions of section 18.

Ibenyenwa v. State,   No. 02-10-00142-CR    (Dec. 15, 2011)   (Livingston, C.J., joined by Dixon W. Holman (Senior Justice, Retired, Sitting by Assignment); Dauphinot, J., concurs and dissents with opinion). [Note: These opinions were withdrawn March 22, 2012]

Held:   Appellant failed to preserve his challenge to the constitutionality of section 21.02 of the penal code. Additionally, the trial court did not abuse its discretion by admitting a videotaped interview of the child complainant pursuant to rule 107, and over Appellant's rule 403 objection, because the defense's questioning of the interviewer left the impression that the interviewer had possibly manipulated the interview by asking repetitive questions even though she was not supposed to and by excessively repeating the child's answers.

Concurrence and Dissent:   A facially unconstitutional law may be challenged at trial, on appeal, or collaterally regardless whether Appellant preserved it.

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