                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-17-00335-CV

CARLTON E. BRANTNER,
                                                          Appellant
v.

GEORGE M. ROBINSON,
                                                          Appellee


                           From the 87th District Court
                             Freestone County, Texas
                           Trial Court No. CV-17-072-B


                           CONCURRING OPINION


      There are at least two old sayings that could be applied to this appeal. One of

those is that “You have to ride the horse that you picked.” The other is that “You dance

with the one that brung ‘ya.” Both sayings essentially mean that when a choice is made,

you must live with the consequences of your decision. In this proceeding, each saying

best fits different decisions that were made by Robinson. As applied to this proceeding,

Robinson chose to ride a motion for summary judgment and he chose to bring the defense

of the statute of limitations to the dance. As the member of the Knights Templar who
was guarding the Holy Grail said, “He chose…poorly.”1

          Brantner is a convicted felon serving his sentence in a Texas Department of

Criminal Justice facility. During the trial for the offense for which he was convicted,

Brantner was represented by Robinson. Brantner has sued Robinson for a variety of

claims stemming from that representation. Robinson moved for summary judgment on

all of Brantner’s claims on the basis of the statute of limitations defense. The motion was

granted.

          Virtually nothing in the Court’s opinion should be necessary. But it is necessary

because of the way the suit was brought and defended. I write separately to make clear

that, as a person convicted of a crime, Brantner cannot pursue a cause of action against

his criminal defense attorney unless and until he has “been exonerated on direct appeal,

through post-conviction relief, or otherwise.… [A]s a matter of law, it is the illegal

conduct rather than the negligence of a convict’s counsel that is the cause in fact of any

injuries flowing from the conviction, unless the conviction has been overturned.” Peeler

v. Hughes & Luce, 909 S.W.2d 494, 498 (Tex. 1995). In Brantner’s case, his conviction has

not been overturned. He remains convicted of his crime. Thus, as a matter of law, he

cannot prove causation for any claim against his defense attorney, Robinson.

          But as an appellate court, we are limited in our review by how the issues are

brought and defended and then further limited by how the issues are presented on

appeal, unless it is a jurisdictional issue. Causation is not how Robinson chose to defend


1   INDIANA JONES AND THE LAST CRUSADE (Paramount Pictures, Lucasfilm 1989).
Brantner v. Robinson                                                                 Page 2
against Brantner’s claims. Rather, Robinson asserted a statute of limitations defense.

Thus, the Court has dealt with the case as presented. There is, however, at least one

unanswered question in the analysis due to the complexity of the statute of limitations

defense and the loose language in the cases that have discussed this issue.

        The unanswered question hides behind the distinction between accrual and tolling

of a cause of action. For my analysis in this appeal, it does not matter because the result

is the same: Robinson failed to prove that the statute of limitations expired before Brantner

filed his claim.2

        I will briefly discuss the law about suing criminal defense attorneys and then will

come back to discuss why the statute of limitations defense was not, and cannot, be

proven to have expired on the facts of this case.

CONVICTS SUING THEIR CRIMINAL DEFENSE ATTORNEYS

        Let us make one thing perfectly clear. Whether or not I am correct on anything

else in this concurring opinion, there should be no convicted person reading this case

who construes it as allowing a claim to be brought against the convicted person’s attorney

unless and until the conviction for which the attorney had previously represented the

person has been overturned.3



2 Because Robinson attempted to defeat Brantner’s claims by asserting the defense of the statute of
limitations, it was Robinson’s burden to do so.

3Various terms are used for the required event: overturned, exonerated, invalidated, etc. All these terms
in context mean that a final determination has been made that the person is no longer convicted of the
crime and is not suffering a restraint or collateral consequences from it. I do not address the possibility of
Brantner v. Robinson                                                                                   Page 3
        Any person researching this issue should be familiar with a few cases to select the

best procedure and the pertinent defenses to the most common arguments. The research

should begin with Justice Craig Enoch’s excellent discussion of the issue and succinct

holding, set out above, in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995). As applied

to the facts of this case, Peeler’s precedential value is not limited by Chief Justice Tom

Phillips’s concerns that there might be a circumstance when some particularly probative

evidence could form the basis of a negligence action because there is no suggestion that

type evidence is present in this proceeding. In Peeler, the attorney defending the suit

chose a motion for summary judgment attacking causation to defeat the claims of the

former client. The defense was a success.4

        In a subsequent case, Senior Justice Don Wittig, sitting by assignment to a Houston

Court of Appeals panel, had to address the procedural limitations and the need for the

defendant, previously the plaintiff’s criminal defense attorney, to raise the sole proximate

cause issue in the procedural device selected. In Golden v. McNeal, 78 S.W.3d 488, 493

(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d), Justice Witting noted that although the

defendant raised the issue in an answer to the suit brought by his former client, the

defendant did not raise the absence of causation as a ground in the defendant’s traditional

motion for summary judgment. Therefore, the Court could not use the absence of



clemency or a pardon. Because “overturned” is the last term used by the Supreme Court of Texas, it is the
term used throughout the remainder of this concurring opinion other than in quotes.

4This case predated the no-evidence motion for summary judgment rule which would seem to be a much
better procedural vehicle than a traditional motion for summary judgment where the burden to establish
every element of a defense is on the movant.
Brantner v. Robinson                                                                              Page 4
causation to affirm the judgment; notwithstanding that if it had been raised as a ground

in the motion for summary judgment, the trial court’s judgment would have been

affirmed. Id. The absence of causation was simply not available to affirm the judgment

because, without having been a ground raised in the summary judgment motion, it could

not have been the basis of the trial court’s judgment. Id.

       Another case that adds significantly to the analysis of a legal malpractice claim

against a criminal defense attorney, whether it is brought as negligence, DTPA, breach of

contract, or breach of fiduciary duty, is an excellent summary of the law in this area by

Justice Evelyn Keyes in Stallworth v. Ayers, 510 S.W. 3d 187, 191-194(Tex. App.—Houston

[1st Dist.] 2016, no pet). Justice Keyes first addresses the effort of the criminal defendant

to fracture the claim and make it multiple causes of action and explains why that is not

allowed in Texas. Id. at 190. Further, what is particularly noteworthy is that the criminal

defense attorney had chosen to use a relatively new procedural tool, a Rule 91a motion

to dismiss, as the procedural device to obtain a dismissal by showing that the inmate’s

claims had no basis in law or fact. Id. at 189.

       Finally, a relatively recent proceeding also reviewing lack of causation and using

Rule 91a was written by Justice Kevin Jewell in Cooper v. Trent, 551 S.W.3d 325 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied). In that case, the Court concluded, “…

Cooper’s factual allegations, if true, and her claims, if successful, would necessarily imply

the invalidity of her conviction. For that reason, and because Cooper’s conviction has not

been overturned or otherwise invalidated by a court, her allegations and claims are not

cognizable and do not entitle her to the relief sought. As Cooper’s claims lack basis in

Brantner v. Robinson                                                                   Page 5
law, the trial court did not err in granting Trent’s Rule 91a motion to dismiss….” Id. at

327. What is unique about this claim is that it was asserted against the prosecutor by the

convicted person, Cooper. The assertion of the lack of causation was still effective to

obtain a dismissal because the attorney was able to show that the conviction had not been

overturned. Cooper was still incarcerated for the crime she had committed, which was a

relatively simple fact to show. Thus, Cooper was, as a matter of law, unable to establish

proximate cause for any claim against the attorney involved in her criminal conviction.

THE LIMITATIONS DEFENSE

       We now turn back to the limitations defense, as used in this case, and the question

of accrual versus tolling. The following excerpt is from one of the most often cited cases

regarding a statute of limitations analysis by the Supreme Court of Texas:

       A cause of action generally accrues, and the statute of limitations begins to
       run, when facts come into existence that authorize a claimant to seek a
       judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.
       1990); see also Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990)
       ("[A] cause of action can generally be said to accrue when the wrongful act
       effects an injury."). Today we are asked to decide whether, in a suit by an
       insured against its agent for negligent breach of the agent's duty to obtain
       insurance, the injury-producing event was the denial of coverage by the
       insurance company, or the final resolution of the coverage dispute by the
       courts. We hold that Kenneco sustained injury when coverage was denied
       and, therefore, limitations commenced on that date because all facts
       required for a cause of action existed at that time. See Gilbreath v. White,
       903 S.W.2d 851, 856 (Tex. App.—Texarkana 1995, no writ) (holding that
       legal injury occurred for purposes of negligence action against insurance
       agent when insurance company rejected the claim); see also Bush v. Ford Life
       Ins. Co., 682 So.2d 46, 47-48 (Ala. 1996); Plaza Bottle Shop v. Al Torstrick Ins.
       Agency, 712 S.W.2d 349, 350 (Ky. Ct. App. 1986).



Brantner v. Robinson                                                                       Page 6
Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998)

(emphasis added).

       Now we must look to the law discussed above when reviewing a cause of action

against a criminal defense attorney for legal malpractice. It is that overlay that will

determine at what point in time “all facts required for a cause of action existed.” Based

on the law as articulated by the Texas Supreme Court in Perry, it appears that because the

cause-in-fact prong of proximate cause, which is an element of a negligence claim, does

not exist factually until the conviction is overturned, the cause of action does not exist

until that point in time. If this is an accurate statement of the law, then Brantner’s cause

of action has not yet accrued; therefore, it cannot yet be barred by the statute of limitations

because it has not begun to run; it necessarily has not expired.

       Alternatively, the cause of action has accrued but limitations must be tolled until

the conviction has been overturned. If this is an accurate statement of the law, then

Brantner’s cause of action has accrued, but the limitations period is tolled until his

conviction is overturned, which has not yet occurred, and therefore, the statute of

limitations has not expired.

       The ultimate question then is when does the cause of action for attorney

malpractice by a criminal defense attorney accrue? Does the cause of action against the

criminal defense attorney accrue only when the conviction is overturned? Or does the

cause of action accrue at the time of the attorney’s malpractice but limitations is tolled


Brantner v. Robinson                                                                     Page 7
until the conviction is overturned? The answer may sometimes be important, but not in

this case. Regardless of whether it has not yet accrued or whether it has accrued but is

tolled until overturned, Robinson cannot establish the statute of limitations for Brantner’s

claim has expired.

       In our brief history in time, we simply are not yet to the end of the limitations

period. The limitations period might, or might not, have begun; but it has not expired.

Thus, in either instance, Brantner’s cause of action, if any, is not foreclosed by the defense

of the statute of limitations.

THE HORSE PICKED AND THE DANCE

       In this type of case, as in most, the choice of procedural vehicles is important

because the rules regarding our method of review are governed by the procedure used

in the trial court. Failure to faithfully follow the procedure chosen in the trial court can

lead to delay or defeat in the appellate court.       Raising a limitations defense via a

traditional motion for summary judgment requires a lot more effort and risk of

procedural problems than raising a no-causation-as-a-matter-of-law defense via a Rule

91a motion to dismiss.

       This brings us back to the wisdom of the generations that have gone before us. Be

careful which horse you pick because you will have to ride it all the way to your

destination. Robinson picked a motion for summary judgment. It is a good horse. It will

work in this situation. But there may be other procedures that provide a smoother, more

predictable ride.
Brantner v. Robinson                                                                    Page 8
       But Robinson came to the dance with the statute of limitations as his dance partner.

Robinson must continue to dance with the statute of limitations. Unfortunately for

Robinson, at the American Bandstand, the statute of limitations has fallen on the dance

floor and cannot get up.

       Robinson’s judgment determining his horse’s dance to be the winner must,

therefore, be reversed and this proceeding remanded to the trial court for further

proceedings. Robinson did not ride the Lipizzans to the dance. He should have. I

respectfully concur in the court’s judgment.




                                         TOM GRAY
                                         Chief Justice

Concurring opinion delivered and filed August 14, 2019




Brantner v. Robinson                                                                 Page 9
