WISD Taxpayers Association v. Waco Independent School District

WISD Taxpayers v. WISD et al. IN THE TENTH COURT OF APPEALS No. 10-95-286-CV      WISD TAXPAYERS ASSOCIATION,                                                                                               Appellant      v.      WACO INDEPENDENT SCHOOL DISTRICT, ET AL.,                                                                                               Appellees From the 54th District Court McLennan County, Texas Trial Court # 95-1957-2                                                                                                     MEMORANDUM OPINION                                                                                                           The WISD Taxpayers Association (Taxpayers) attempts to appeal from an order dismissing their suit against the Waco Independent School District and certain members of its board of trustees (collectively WISD). By a motion to dismiss, WISD argues that the Taxpayers failed to timely perfect their appeal, thus depriving us of jurisdiction over this cause. Because we agree with WISD, we dismiss the Taxpayers' appeal for want of jurisdiction.       According to a report prepared by the State Comptroller's Office, the Waco Independent School District (individually, the District) experienced a "major, and much publicized, financial crisis" in December 1994 and January 1995. The Comptroller's report included a list of "recommendations" to assist the District in correcting the problems that led to the "crisis." The Taxpayers sued WISD seeking the court's aid in enforcing the Comptroller's recommendations. They sought a writ of mandamus compelling the District to: (1) conduct a mid-year independent audit; (2) sue the District's external accounting firm for accounting malpractice; (3) sue the District's legal representatives for legal malpractice; (4) dismiss three District employees—the Superintendent, the Deputy Superintendent and the Assistant Superintendent for Business/Support Services; (5) institute legal proceedings against individual trustees for breach of their fiduciary duties; and (6) set-aside a specific budget amendment until a board meeting that followed "parliamentary procedure" for considering the amendment could be held. They also requested that the court issue an order removing certain trustees, enjoining the District from raising funds until after a public accounting, and placing the District into receivership "until the financial crisis has been rectified."       As part of its original answer, WISD filed a plea to the court's jurisdiction, a plea in abatement, and a motion to dismiss. WISD argued that the Taxpayers had failed to exhaust the administrative remedies available through the Commissioner of Education, were not entitled to mandamus because they had not pled a claim for which mandamus was available and did not have standing to seek mandamus against the District, lacked standing to seek ouster of the named trustees, failed to plead a claim which would entitle them to an injunction, and requested an unavailable remedy when they sought a receivership over the District.       On June 30, 1995, after a hearing at which the court "proceeded to review the pleadings and to hear and consider the arguments and statements of counsel," the court granted WISD's pleas to the jurisdiction and in abatement and dismissed the Taxpayers' lawsuit. The Taxpayers requested that the court file findings of fact and conclusions of law supporting its order. Tex. R. Civ. P. 296. The court never filed the requested findings and conclusions, even though the Taxpayers timely filed a notice of overdue findings with the court. Id. 297. On September 20, seventy-nine days after the suit was dismissed, the Taxpayers filed a notice of appeal and a cash deposit in lieu of a cost bond. Tex. R. App. P. 40(a)(1).       WISD asserts that the Taxpayers failed to timely perfect this appeal. Absent a filing which extends the appellate timetable, a party has thirty days from the date an appealable order is signed to file an instrument perfecting his appeal. Id. 41(a)(1); Linwood v. NCNB of Texas, 885 S.W.2d 102, 102 (Tex. 1994). WISD argues that the Taxpayers' request for findings of fact and conclusions of law did not extend the due date for the cost bond because the cause was not "tried without a jury." Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 525 (Tex. App.—El Paso 1995, writ denied); Zimmerman v. Robinson, 862 S.W.2d 162, 164 (Tex. App.—Amarillo 1993, no writ).       A cause is "tried" within the meaning of Rule 41(a)(1) when there is an evidentiary hearing before the court upon conflicting evidence. Chavez, 897 S.W.2d 525; Besing v. Moffitt, 882 S.W.2d 79, 81-82 (Tex. App.—Amarillo 1994, no writ); Linwood v. NCNB of Texas, 876 S.W.2d 393, 395 (Tex. App.—Dallas), rev'd on other grounds, 885 S.W.2d 102 (Tex. 1994). Where the court rules without determining questions of fact, requests for findings of fact and conclusions of law are neither appropriate nor effective for extending the appellate deadlines. Chavez, 897 S.W.2d 525-26; Zimmerman, 862 S.W.2d at 164.       To establish jurisdiction below, the Taxpayers were required to allege facts that demonstrate the court's subject-matter jurisdiction. Tex. Ass'n of Business v. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Those allegations are taken as true by the trial court when considering a plea to the jurisdiction or a motion to dismiss. Green v. Watson, 860 S.W.2d 238, 244-45 (Tex. App.—Austin 1993, no writ). There are no disputed fact issues involved; rather, the pleadings state the facts upon which the court rules. Green Intern., Inc. v. State, 877 S.W.2d 428, 437-38 (Tex. App.—Austin 1994, writ dism'd). Thus, when the court dismisses a suit based on the pleadings, findings of fact and conclusions of law are not appropriate. Washington v. Fort Bend Independent School Dist., 892 S.W.2d 156, 160 (Tex. App.—Houston [14th Dist.] 1994, writ denied); Green Intern., 877 S.W.2d at 437-38; Green, 860 S.W.2d at 244-45.       Because the requests for findings of fact and conclusions of law are not appropriate, the Taxpayers' request did not extend the timetable for perfecting its appeal. Chavez, 897 S.W.2d 525-26; Besing, 882 S.W.2d at 82; Linwood, 876 S.W.2d at 395; Zimmerman, 862 S.W.2d at 164. Therefore, the Taxpayers' cash deposit was not timely as it was not filed within thirty days of the court's order, and we do not have jurisdiction. Tex. R. App. P. 41(a)(1); Zimmerman, 862 S.W.2d at 164; McCaskell v. Methodist Hosp., 856 S.W.2d 519, 521 (Tex. App.—Houston [1st Dist.] 1993, no writ); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 4-5 (Tex. App.—El Paso 1992, writ denied).       Because we do not have jurisdiction over this appeal, we grant WISD's motion and dismiss this cause.                                                                                PER CURIAM Before Chief Justice Thomas,       Justice Cummings, and       Justice Vance Motion granted, dismissed for want of jurisdiction Opinion delivered and filed December 13, 1995 Publish who stopped Torres, and administered a standardized field sobriety test to Torres.        Torres argues: First, this portion of the charge was not in writing. Second, the judge commented on the weight of the evidence by implying to the jury—it’s the only piece of evidence he mentioned—his opinion that Officer Russell’s testimony was important to its decision. Third, there was no opportunity for defense counsel to make objections; he did not have an opportunity to.       Furthermore, in addition to violations of article 36.14, article 36.16 was violated: “The failure of the court to give the defendant or his counsel a reasonable time to examine the charge and specify the ground of objection shall be subject to review either in the trial court or in the appellate court.” (Br. at 13-14 (internal citation omitted) (quoting Tex. Code Crim. Proc. Ann. art. 36.16)); see Tex. Code Crim. Proc. Ann. art. 36.14.        We assume without deciding that, as Torres argues, the trial court’s statements constitute charge error. But we cannot assume, as Torres argues, that Torres preserved a charge objection. We perceive no hindrance to Torres’s objecting at the time that the trial court made the statements of which Torres complains. Accordingly, we evaluate those statements for egregious harm rather than, as Torres argues, for some harm.        As to the entirety of the charge, Torres argues that what he calls the trial court’s “’oral’ jury-charge instruction stood out precisely because it was oral.” (Br. at 6.) But the trial court at the same time instructed the jury on, for example, the verdict form, demonstrative exhibits, jury requests for evidence, and jury notes. Torres makes no other objection to the guilt-or-innocence charge. The State argues that the instruction of which Torres complains was a correct statement of the law. See Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 2006); Howell v. State, 175 S.W.3d 786, 790-92 (Tex. Crim. App. 2005); Robison v. State, 888 S.W.2d 473, 480-81 (Tex. Crim. App. 1994); Moore v. State, 874 S.W.2d 671, 673 (Tex. Crim. App. 1994). The trial court’s written charge also instructed the jury against considering anything the trial court said as a comment on the weight of the evidence in the following terms:       You are instructed that you are not to allow yourselves to be influenced in any degree whatsoever by what you may think or surmise the opinion of the Court to be. The Court has no authority by word or act to indicate an opinion respecting any matter of fact involved in this case nor to indicate any desire respecting its outcome. The Court has not intended to express any opinion upon any matter of fact in this case, and if you have observed anything which you have interpreted or may interpret as the Court’s opinion upon any matter of fact in this case, you must wholly disregard it. (4 R.R. at 170; see I C.R. at 91.) The charge as a whole does not tend to show harm.        As to the trial evidence, Torres argues, “The State’s best evidence of intoxication was the results of the field-sobriety tests administered by Officer Russell, and in particular the horizontal gaze nystagmus test which Russell testified was practically never wrong.” (Br. at 7.) Regardless of the weight that Officer Russell subjectively put upon the standardized field sobriety test, the State, at least, relied on other evidence that Torres was intoxicated. That evidence was very strong. Torres was driving his pickup truck so slowly as to cause a traffic obstruction, and weaved within and outside of his traffic lane. Torres had a very strong odor of an alcoholic beverage from his breath. Torres’s eyes were bloodshot and he slurred his speech. Torres misspelled his name when asked by officers. Torres moved with exaggerated slowness. Torres fumbled in trying to find his driver’s license and insurance card, and officers saw him pass over them several times before he found them. Torres had to use the door of his truck to get out and stand up. Torres was belligerent with the officers. Torres refused to submit a specimen of his breath to determine its alcohol concentration. The trial evidence does not tend to show harm.        As to the argument of counsel, Torres points out a reference in the State’s argument to a standardized field sobriety test that Officer Russell had administered to Torres. That and one other reference, both in passing, occurred in the seventeen pages of the State’s argument. The State thus emphasized the other, strong evidence that Torres was intoxicated, not the standardized field sobriety test. The argument of counsel does not tend to show harm.        As to other relevant information, the parties agree that there is none.        Torres did not suffer egregious harm from the trial court’s reference to the testimony of Officer Russell.        We overrule Torres’s first issue.        Punishment. In Torres’s second issue, he complains of the charge in the punishment phase of trial.        Torres complains of the following instruction: Do not let personal bias, prejudice, sympathy or resentment on your part, or any such personal emotion on your part, enter into your deliberations or affect your verdict in this case. (5 R.R. at 67 (quoting I C.R. at 52).)        Torres argues that “sympathy is proper for the jury to consider in assessing punishment. . . . In fact, a jury may properly consider mitigating evidence, including sympathy, when it contemplates and renders a verdict.” (Br. at 8 (citing Coddington v. State, 2006 OK CR 34, ¶ 90, 142 P.3d 437, 460, cert. denied, 127 S. Ct. 2032 (2007); Dycus v. State, 1998-DP-01094-SCT (¶¶ 133-35), 875 So.2d 140, 167 (Miss. 2004), judgment vacated on other grounds, 544 U.S. 901 (2005)).) But the United States Supreme Court has held that the jurors need not “be allowed to base the sentencing decision upon the sympathy they feel for the defendant after hearing his mitigating evidence.” Saffle v. Parks, 494 U.S. 484, 489 (1990); accord Wilson v. State, No. 10-07-00171-CR, 2008 Tex. App. LEXIS 5138, at *8-11 (Tex. App.—Waco July 9, 2008, no pet. h.).        The trial court did not err in its anti-sympathy instruction. We overrule Torres’s second issue.        Conclusion. Having overruled Torres’s issues, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray,        Justice Vance, and        Justice Reyna        (Justice Vance concurs in the judgment with a note) * Affirmed Opinion delivered and filed September 24, 2008 Do not publish [CR25]         * “(I would find that trial court’s statements in issue one were erroneous, but I agree to affirm the judgment.)”