TJCTC Updates 5.9.2024

Hello Judges, Constables, Deputies, & Court Staff,

How is it already May?! As you gear up for summer, we wanted to share upcoming training opportunities, grants, a new “Legal Question of the Month” feature, and of course more resources for your courts and offices.

Legal Question of the Month

Do I have to appoint a receiver?

No. You don’t have to appoint a receiver or issue a turnover order under Civil Practice and Remedies Code 31.002. However, you must consider applications for this relief and make your decision based on the application and case at hand. You should not have a blanket policy that you never issue receivers. Here is a snippet from some caselaw on the topic:

“Although subsection (a) of the statute uses the word ‘entitled,’ the use of ‘may’ in subsection (b) makes the remedy discretionary.” See Barlow v. Lane, 745 S.W.2d 451 (Tex. App. 1988), Beaumont Bank N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991).

“We review the trial court’s decision for an abuse of discretion…whether there is evidence to support the decision is a relevant consideration. The ultimate question, however, is whether the court acted in an unreasonable or arbitrary manner or without reference to any guiding rules.” See Beeler v. Fuqua, 351 S.W.3d 428 (Tex. App. —El Paso 2011).

What this means is that if you just have a general rule that you don’t like receiverships and you don’t want to do them, you are probably abusing your discretion. However, if you review the applications closely or have some other reason not to grant the application and are not denying the judgment debtor other ways to collect their judgment (writ of execution, turnover order, etc.), then you can deny an application for a receiver. It would also make sense that if a particular receiver has acted improperly before, that you might have reason not to appoint them (just like if you no longer trust a process server, because they provided false information in a return).

The Ft. Worth Court of Appeals just ruled about a court using their discretion to deny the appointment of a receiver using the following logic:

“Employer’s attorney’s affidavit, in which she conveyed her ‘understanding’ that former employee owned nonexempt assets, ‘including bank accounts, income, personal property, and interest in real property,’ was not competent evidence of employee’s ownership of nonexempt property as would support issuance of turnover order to satisfy employer’s judgment against employee, because the affidavit showed no personal knowledge, and attorney’s recitation of her ‘understanding’ was conclusory.” Vaccaro v. Raymond James & Associates, Inc., 655 S.W.3d 485 (Tex. App.-Fort Worth 2022).

The Houston Court of Appeals ruled similarly:

Presenting some evidence of right to turnover relief and showing nonexempt status of judgment debtor’s remaining funds does not automatically mandate trial court to order turnover of funds to judgment creditor; rather, trial court has discretion to consider other relevant factors such as ability of judgment debtor to meet living expenses if turnover relief is granted. Brink v. Ayre, 855 S.W.2d 44 (Tex. App.—Houston [14th Dist.] 1993)

Grant Opportunities

We know that coming up with the necessary funding isn’t always easy. The Texas Association of Counties (TAC) shared a few grant opportunities for courts and rural county officials last month that we wanted to pass along.

Rural Mental Health Grant

Selected Grant Opportunities

Upcoming Training

Ask about Suicide to Save a Life (AS+K) Virtual Training

The Health and Human Services Commission is hosting a training on May 15 from 9:00 a.m. – 12:00 p.m. CDT on warning signs, clues and suicidal communications of people in psychological distress, and the actions to take to prevent a possible tragedy. Capacity is limited and pre-registration is required. RSVP at suicide.prevention@hhs.texas.gov.

Justice Court Section Webinar – Civil Trial and Pretrial Rules and Practice in Justice Courts

Presenter, Rebecca Glisan, TJCTC Director of Curriculum & Staff Attorney

This course will cover some of the specific rules and common issues that arise in justice courts related to jury and bench trials as well as pre-trial motions and hearings. Topics will include continuances, mediation and agreed orders, summary disposition, discovery, evidence, development of the facts of the case, preparing the jury, and more.

Friday, May 17, 2024 from noon – 1:00 pm

Registration Link: https://us06web.zoom.us/meeting/register/tZ0uf-qprTwiEt0SfYLrJi12yZMulvcVHzA9%20#/registration

Free Lexipol Training for Law Enforcement

One of the top-national law enforcement training organizations, Lexipol, has partnered with Dak Prescott’s Faith, Fight, Finish Foundation to offer some free training for law enforcement. This could be helpful to constables and deputies looking for additional training to complete all of their TCOLE requirements.

https://cycle.lexipol.com

Recording For Credit Posted

Mental Health Resources for Judges

TLAP helps judges with issues related to substance use or mental health disorders and maintains a list of volunteer judges who are interested in providing support to peers in crisis. This class will feature a discussion with TLAP and the resources available for judges dealing with issues such as vicarious trauma. The handouts for the course are also attached to his email.

Click here to view the recording

Sequential Intercept Model Mapping Opportunity

Texas Health and Human Services (HHSC) has published the Fall 2024 Sequential Intercept Model (SIM) mapping workshop application for communities interested in working with the HHSC Office of Forensic Coordination to map local behavioral health, criminal justice, or juvenile justice systems and develop action plans. The application deadline is May 17, and the application and more information about the SIM process is available at on the HHSC website.

Mental Health Awareness Month

This month is Mental Health Awareness Month, so we compiled the resources in the following newsletter for you to use throughout the month to bring awareness to the topic that so-often comes up in your courts.

You can also find additional news about the intersection of mental health and courts at JCMH News.

Mental Health Awareness Month

We hope that you find these resources helpful and enjoy the warmer weather!

– Thea and the TJCTC Team

February 10, 2020March 6, 2020

Legal Board Question of the Month

January 2020

Question: Just needed a bit of clarification please. The new time pay fee ($15): is this only on tickets that are written after Jan 1st (and set up on payment plan, etc.) or any ticket that is set up after Jan 1st for payment plan, etc. Thank you.

Answer: Yes. The Time Payment Reimbursement Fee that became effective January 1, 2020, will apply to all fees assessed after that date, regardless of the date of offense or the date of the conviction. Please see page 19 of the Fines, Fees, & Costs Deskbook for a detailed description of when the Time Payment Reimbursement Fee applies, as there are some differences from the previous version of the Time Payment Fee assessed prior to 1/1/2020. The Deskbooks can be found at: https://www.tjctc.org/tjctc-resources/Deskbooks.html

January 31, 2020January 31, 2020

Legal Board Question of the Month

December 2019

Question: Parent Contributing to Non-Attendance/Truant Conduct question – The school has a policy that if a student is late 15 minutes or more late to school/class it’s considered a LOSIT (Loss of Significant Instructional Time). Would this be considered a part of a day? I know if a student is late to school or class it’s a tardy. Based off the law can the school district use this LOSIT as part of the tenth absence within the six month period? Again this is the District’s policy.

Answer: School district policy doesn’t impact Texas law. This question was recently answered, and can be found by searching the board for the word tardies.

In a 1993 opinion, the attorney general concluded that absences generally do not include tardiness to class, especially if the student is present on the campus but late to class. The particular circumstances of a child’s tardiness on a certain day may be sufficiently egregious to constitute an absence, but school districts should not routinely classify each instance of tardiness as an absence for purposes of truancy. (Op. Tex. Att’y Gen. No. DM-200 (1993)). This would also apply to parent contributing to nonattendance cases.

Also note that the court should not be involved in determining which truancy cases a prosecutor should file. If and when a case is filed, the court’s role is to make a determination on that case.

December 11, 2019

Legal Board Question of the Month

November 2019

Q. If a plaintiff comes in and asks if an address is in our precinct and we look it up and let them know which precinct it’s in, is that considered giving legal advice?

A. No, assisting a person in determining whether or not an address is in your precinct is not giving legal advice; it is giving factual information. One way to do this is to help the person look up the address on a map showing the precinct boundaries or in some counties you can enter an address in a database and it will state which precinct that address is in. A court may assist a person in obtaining this factual information.

October 31, 2019October 31, 2019

Legal Board Question of the Month

OCTOBER 2019

QUESTION:

If we have an eviction case that was originally filed as a non-payment of rent case. At trial the Judge grants “possession only.” If the defendant appeals, would they be required to pay the one month’s rent into the court’s registry, even though the judgment was for possession only?

ANSWER:

Yes. If the basis for the eviction was that the tenant did not pay their rent, then it is a non-payment of rent eviction even if the landlord does not ask for back rent or the court does not award back rent.

If it is a non-payment of rent eviction, and the tenant appeals by filing a Statement of Inability to Afford Payment of Court Costs or by filing an appeal bond, then the court must provide the written notice concerning payment of rent and the tenant must deposit one month’s rent into the court registry. See Evictions Deskbook at page 45; Property Code §24.0053.

If the ground for the eviction is something other than non-payment of rent (for example, loud parties late at night or the lease has terminated but the tenant has not vacated the premises), then the tenant is not required to pay rent into the court registry, and the court does not send the notice to the tenant.

What counts is whether the basis for the eviction suit is non-payment of rent, not whether the landlord is seeking to recover back rent or whether back rent was awarded. It is up to the landlord to decide whether he wishes to seek to recover back rent or not in an eviction case. Even if he decides not to do so, if one of the grounds for eviction was non-payment of rent, then the tenant must make the initial deposit of rent into the court’s registry upon appealing by filing a Sworn Statement of Inability to Afford Payment of Court Costs or by filing an appeal bond.

The Deskbooks can be found here.

September 24, 2019September 24, 2019

Legal Board Question of the Month

We are going to start posting a noteworthy legal board question and answer each month. Below is our first one!

QUESTION:

I have a plaintiff asking for a Writ of Execution after 10 years. The plaintiff is claiming that the 10 year period is extended by three years due to a bankruptcy filing after the judgment was entered. Does a bankruptcy filing toll the 10 year judgment period? Judgment was entered 3/19/08, bankruptcy was filed 8/11/09 and dismissed on 8/1/12. The debt is still due and owing as it was not discharged in the bankruptcy.

ANSWER:

The Texas Court of Appeals addressed this issue in the recent case of Cade v. Stone, 2013 WL 3009853 (Tex. App.—Corpus Christi, June 13, 2013, no pet.) and expressly held that the pendency of a bankruptcy proceeding tolls the 10 year life span of a Texas judgment. The court held: “[W]here ‘a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.’” After considering 11 U.S.C. § 108, the court noted that, “[a]pplicable nonbankruptcy law [i.e., Texas common law] … provides that [the applicable statute of limitations] w[as] suspended during the time that Cade was prohibited from executing on the judgment due to the automatic bankruptcy stay.” The court concluded: “Accordingly, the time during which the automatic bankruptcy stay was in effect is not “counted against [Cade] in determining” when the applicable statute of limitations (i.e., section 34.001 of the civil practice and remedies code) operated to bar execution on the 1993 domesticated judgment, and, in turn, when the time period for reviving that judgment expired.”

See also HSBC Bank USA, N.A. as Trustee for Merrill Lynch v. Crum, 907 F.3d 199 (5th Cir. 2018); Baker Atlas v. Cheruvathur, 8 Wash. App.2d 1070 (Wash. App. May 20, 2019).

Under this case authority, the plaintiff is correct and the period of the bankruptcy should be added to the ten-year period in which the judgment remains valid. That is precisely the holding of Cade v. Stone.

However, in this case, the plaintiff is still within the two year period in which he could file a writ of scire facias or an action of debt to revive the judgment even if it had become dormant. So even if the bankruptcy case had not tolled the ten-year period for enforcing the judgment, he would still be able to do so through those means.