                                                                                                   ACCEPTED
                                                                                               06-15-00086-CV
                                                                                    SIXTH COURT OF APPEALS
                                                                                          TEXARKANA, TEXAS
                                                                                         12/10/2015 2:40:20 PM
                                                                                              DEBBIE AUTREY
                       SHEEHY, LOVELACE & MAYFIELD, P. C.                                               CLERK
                                 ATTORNEYS AND COUNSELORS AT LAW

                                      Established 1 893


                                  510 N. VALLEY MILLS DRIVE
                                                                         RECEIVED IN
                                                                   6th COURT   OF abennett@slmpc.com
                                                                                   APPEALS
E. ALAN BENNETT                            SUITE 500                       E-MAIL:
                                     WACO, TEXAS 76710               TEXARKANA, TEXAS
                                                                   12/10/2015 2:40:20 PM
                                  TELEPHONE (254) 772-8022
                                   FACSIMILE (254) 772-9297             DEBBIE AUTREY
                                                                             Clerk




                                  December 10, 2015

    Debbie Autrey, Clerk
    Sixth Court of Appeals
    100 North State Line Ave., Ste. 20
    Texarkana, Texas 76701

          Re:   Cause No. 06-15-00086-CV; In re Tyndell;
                In the Sixth Court of Appeals

    Dear Ms. Autrey:

    Please accept this as my post-submission letter brief in the above cause and
    bring it to the attention of the justices at your earliest convenience.

    In this post-submission letter brief, counsel provides citations to four
    additional authorities referenced in oral argument that were not cited in the
    relator’s petition with a brief statement of the legal principles for which the
    cases are cited.

    In re China Oil and Gas Pipeline Bureau, 94 S.W.3d 50, 63-64 (Tex. App.—
    Houston [14th Dist.] 2002, orig. proceeding)

          This case stands for the proposition that in a mandamus proceeding
          an appellate court cannot consider any and every factual or legal basis
          that might support the trial court’s decision. Rather, the appellate court
          must restrict its review to the specific bases recited for the decision
          under review.
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 2

       In the China Oil decision, corporate shareholders filed suit against a
       Chinese business entity for breach of a joint venture agreement, breach
       of fiduciary duty and fraud. After the plaintiffs obtained a default
       judgment, China Oil moved to vacated the judgment on numerous
       grounds including immunity under the Foreign Sovereigns
       Immunities Act (FSIA). The trial court ruled that China Oil had waived
       immunity under the FSIA. In this mandamus proceeding, China Oil
       claimed that the trial court abused its discretion because: (1) it had not
       waived immunity under the FSIA; and (2) even if waiver did not
       apply, it was entitled to immunity under the commercial activities
       exception to the FSIA. However, the Court refused to address the
       second argument because “the trial court did not base its decision on
       this ground.” Id. at 64.

       China Oil cited Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 279
       (Tex. 1987), for the proposition that the trial court’s decision on the
       claim of immunity under the FSIA must be upheld under any legal
       theory supported by the evidence.

       However, the Fourteenth Court rejected this contention and expressly
       held that this is not the appropriate standard of review for a
       mandamus proceeding. Instead, it is the appropriate standard of
       review for an appeal following a bench trial when no findings of fact
       or conclusions of law are requested.

       China Oil, 94 S.W.3d at 64.

Breceda v. Whi, 187 S.W.3d 148 (Tex. App.—El Paso 2006, no pet.)

       In Breceda, the El Paso Court addressed the attorney-client relationship
       and explained how the actions of an attorney are not always binding
       on the client.

              The attorney-client relationship is one of agent and principal; the
              acts of the former ordinarily binds the latter. Generally, within
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 3

              these roles, every reasonable presumption is to be indulged in
              favor of the attorney duly employed. The most important
              presumption of agency is that the agent acts in accordance with
              the wishes of the principal. However, when the evidence reveals
              that the attorney did not have the client's authority to agree, the
              agreement will not be enforced. Ebner, 27 S.W.3d at 300; see
              Cleere, 605 S.W.2d at 296; see also Kelly v. Murphy, 630 S.W.2d 759,
              761 (Tex. App.-Houston [1st Dist.] 1982, writ ref'd n.r.e.)
              (although attorney is presumed to be acting within authority
              given by clients, presumption is rebuttable); Southwestern Bell
              Tel. Co. v. Vidrine, 610 S.W.2d 803, 805 (Tex. Civ. App.-Houston
              [1st Dist.] 1980, writ ref'd n.r.e.) (“mere employment of counsel
              does not clothe the counsel with authority to settle the cause
              without the specific consent of the client”). Thus, the
              presumption of authority of the attorney is a rebuttable one.

       Breceda, 187 S.W.3d at 152 (some citation omitted)

Garza v. Tex. Dep’t of Human Servs., 757 S.W.2d 44 (Tex. App.—San Antonio
1988, writ denied)

       The Real Parties in Interest cite Garza in their response. Counsel for
       Relator briefly referred to Garza in argument as an example of the sort
       of bad faith or manipulation that can justify the denial of a motion to
       transfer venue under Section 155.201.

       In Garza, the mother filed a separate divorce petition on the day of trial
       of a suit by CPS to terminate her parental rights. She requested a
       transfer of venue that morning. Bad faith and manipulation of the
       system are evident in Garza. The mother had previously filed a cross-
       action for divorce in the termination suit but non-suited the cross-
       action on the day of trial. She sought to transfer the SAPCR to another
       district court in the same county. The district court presiding over the
       SAPCR had subject-matter jurisdiction of her cross-action for divorce.
       Therefore, the district court was certainly within its discretion under
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 4

       those facts to find that she filed the new divorce petition and motion
       to transfer in an attempt to delay the termination suit and manipulate
       the proceedings.

       The facts of Tyndell’s case do not support a similar finding of bad faith
       or manipulation.

Huey v. Huey, 200 S.W.3d 851 (Tex. App.—Dallas 2006)

       Respondent referred to the Huey decision when he announced his
       ruling and counsel for Relator briefly mentioned it in argument. Huey
       provides yet another example of the sort of bad faith or manipulation
       that can justify the denial of a motion to transfer venue under Section
       155.201.

       In Huey, the mother moved the children to a different county in
       violation of the residency restrictions of the parties’ divorce decree to
       establish venue under the 6-month residence provision of Section
       155.201(b). The trial court denied her motion to transfer venue.

       The Dallas Court affirmed because: (1) the mother’s conduct of moving
       the children without first seeking a modification of the divorce decree
       “directly contravenes” the decree; (2) to permit a transfer under these
       circumstances would encourage similarly situated litigants to willfully
       disregard residency restrictions in divorce decrees; and (3) compelling
       the requested transfer would promote impermissible forum shopping.

       As counsel for Relator argued, Huey is distinguishable primarily
       because Relator did not engage in any unlawful conduct or violate any
       extant court order to create proper venue in Jefferson County, where
       the divorce suit is pending. Rather, Relator has been a resident of
       Jefferson County for over four years and venue of her divorce suit is
       undisputedly proper there.
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 5

                                  Respectfully submitted,


                                     /s/ Alan Bennett
                                  E. Alan Bennett

xc:    Georganna L. Simpson (via email)
