                                                                       ACCEPTED
                                                                   12-15-00149-CV
                                                      TWELFTH COURT OF APPEALS
                                                                    TYLER, TEXAS
                                                              6/26/2015 3:50:46 PM
                                                                     CATHY LUSK
                                                                            CLERK


              NO. 12-15-00149CV
              IN THE COURT OF APPEALS              FILED IN
                                            12th COURT OF APPEALS
                      FOR THE                    TYLER, TEXAS
             TWELFTH DISTRICT OF TEXAS      6/26/2015 3:50:46 PM
                    TYLER, TEXAS                 CATHY S. LUSK
                                                     Clerk

                  In Re
         Charles Dwayne Lankford
          And Roberta Gresham,
                 Relators
                     ____________
       From the County Court at Law Number One
             ANGELINA COUNTY, TEXAS


RESPONSE TO PETITION FOR WRIT OF MANDAMUS


                              THOMAS W. DEATON
                              State Bar Number: 05703500
                              Email:
                              tommydeaton@lufkinlaw.com
                              CAROLYN CARTER BELL
                              State Bar Number: 00787061
                              Email: cbell@lufkinlaw.com
                              Deaton Law Firm
                              103 E. Denman
                              Lufkin, Texas 75901
                              Telephone: (936) 637-7778
                              Facsimile: (936) 637-7784
                              Attorneys for Stephanie Smith,
                              Real Party in Interest


          ORAL ARGUMENT REQUESTED



                          i
            SUPPLEMENTAL LIST OF PARTIES

     The undersigned counsel of record supplements Relators’ List of

Parties and certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order

that the judges of this Court may evaluate possible disqualification or

recusal:

Real Parties in Interest                 Counsel

Stephanie Smith                          Thomas W. Deaton
                                         DEATON LAW FIRM
                                         103 East Denman
                                         Lufkin, Texas 75901

                                         Carolyn Carter Bell
                                         DEATON LAW FIRM
                                         103 East Denman
                                         Lufkin, Texas 75901

Karla Sue Frith                          Unrepresented

Relators                                 Counsel

Charles Dwayne Lankford                  Robert T. Cain, Jr.
                                         Robert Alderman, Jr.
                                         ALDERMAN CAIN & NEILL,
                                         PLLC
                                         122 East Lufkin Avenue
                                         Lufkin, Texas 75901

Roberta Gresham                          Robert L. Flournoy
                                         LAW OFFICES OF ROBERT L.
                                         FLOURNOY


                                    ii
                   P.O. Box 1546
                   Lufkin, Texas 75902

Respondent         The Hon. Joe Lee Register
                   Judge of the County Court at
                   Law Number One of Angelina
                   County, Texas
                   P.O. Box 908
                   Lufkin, Texas 75902



                   /s/ Thomas W. Deaton
                   Thomas W. Deaton




             iii
                                 TABLE OF CONTENTS

SUPPLEMENTAL LIST OF PARTIES…………………………………..….i

TABLE OF CONTENTS…….....…………………………………………......iv

INDEX OF AUTHORITIES………………………………………………….vi

STATEMENT OF THE CASE……………………………………………… 1

STATEMENT OF JURISDICTION…………………………………………2

ISSUE PRESENTED…………………………………………………………...2

STATEMENT OF FACTS……………………………………………………..2

SUMMARY OF ARGUMENT………………………………………………..10

ARGUMENT AND AUTHORITIES……………………………………….11

I.   Actual Possession – Has Stephanie Smith had Actual
Possession of T.D.L. for the Requisite Time?...........................................11

II. Actual Care – Has Stephanie Smith Provided Actual Care for
T.D.L.?........................................................................................................12

III.    Control – Did Stephanie Exercise Actual Control over T.D.L.?...16

CONCLUSION………………………………………………………………... 25

PRAYER…………………………………………………………………………28

CERTIFICATION OF REVIEW……………………………………………28

CERTIFICATE OF COMPLIANCE WITH TRAP 9.4(I)………………29

CERTIFICATE OF SERVICE………………………………………………29



                                                       iv
AFFIDAVIT OF THOMAS W. DEATON………………………………….31

SUPPLEMENTAL RECORD

INDEX TO APPENDIX TO RESPONSE TO WRIT OF MANDAMUS

APPENDIX




                         v
                      INDEX OF AUTHORITIES

CASES

T.W.E. v. K.M.E., 828 S.W.2d 806
     (Tex.App.—San Antonio 1992, no writ)…………….….……..…11, 25

Jasek v. Tex. Dept. of Family and Protective Services
     348 S.W.3d 523 (Tex. App.—Austin 2011…...…....11, 21, 22, 24, 25

In Re Fountain 433 S.W. 3d 1; 2012, Tex. App Lexis 1081……….……..20

In re Kelso 266 S.W.3d at 590-591
      (Tex. App. – Fort Worth 2008, orig. proceeding)…........….21, 23, 25

In re KKC, 292 S.W.3d 788, 792-93
      (Tex.App.—Beaumont 2009, no pet.)…………………………..21, 22

Lee v. City of Houston, 807 S.W.2d 290, 295, (Tex. 1991)……………..…22

In the Interest of ACFH and DABH 373 S.W.3d 148, 153
      (Tex.App. San Antonio 2012)……………………………...………..24

STATUTES

TEX. FAM. CODE
§102.003(a)(9)………………………………………………...11, 20, 21, 23, 25




                                    vi
           RESPONSE TO PETITION FOR MANDAMUS


     Stephanie Smith, a real party in interest in this proceeding,

submits this response to petition for writ of mandamus filed by Charles

Dwayne Lankford and Roberta Gresham complaining of the order of the

Honorable Joe Lee Register, County Court at Law Number One of

Angelina County, Texas, overruling their pleas to the jurisdiction.


                     STATEMENT OF THE CASE


     Stephanie Smith agrees in principal with Relators’ Statement of

the Case and adopts the appendix of the Relators and agrees that the

appendix contains sworn, redacted copies of relevant pleadings,

discovery request, motions, and hearing transcripts. We as well have

attached an appendix that includes our cited authority that is not

included in Relators’ appendix and we have attached the supplemented

record which is the transcript of the trial court’s interview with T.D.L.

We refer to the material in Relators’ appendix by referring to Relators’

cite stamp number “R__” as it appears on the right side of the bottom of

each cited page.




                                     1
                 STATEMENT OF JURISDICTION


     Pursuant to TRAP 52.4(c), Stephanie Smith has omitted a

statement of jurisdiction.


                         ISSUE PRESENTED


     Stephanie Smith, a real party in interest, adopts the issue

presented by Relators.


                       STATEMENT OF FACTS


     Stephanie Smith agrees with Relators that the procedural history

as well as the factual history of this case requires “some untangling”

and has provided a timeline that Smith believes sets out both the

factual and procedural history that brought the parties to this juncture.


     In March 22, 2002, T.D.L. was born to Charles Dwayne Lankford

and Karla Sue Lankford (R90), now known as Karla Sue Frith.


     On February 20, 2003, Charles Dwayne Lankford and Karla Sue

Lankford were divorced in Angelina County, Texas. Charles was

named sole managing conservator of T.D.L. and her brother, and Karla




                                    2
Lankford was named possessory conservator with limited and restricted

visitation. (R89-103).


       On September 3, 2004, because of his absence from the country,

Charles filed a Motion to Modify in Suit Affecting the Parent-Child

Relationship and gave up managing conservatorship to T.D.L. in favor

of his mother, Roberta Gresham. An Agreed Order in Suit to Modify

Parent-Child was entered on September 8, 2004 naming Roberta as

managing conservator and relegating Charles to possessory

conservatorship of T.D.L. but giving him no periods of visitation. (R84-

88).


       In January of 2007 Charles and T.D.L, who was four years old

and had had virtually no contact with Karla, her biological mother,

began living with Stephanie Smith in her home to the exclusion of the

managing conservator, Roberta Gresham. Roberta relinquished care,

possession and control of T.D.L. to Charles and Stephanie and

abdicated her responsibilities as managing conservator. (R29-31).


       In March of 2008 Charles began working for Landmark

Construction and continued his employment there until February 2012.


                                    3
His work required that he travel throughout the United States, and he

was away from home 70% to 80% of the time. (R30), (R145). During

the nearly four year period Charles worked for Landmark Construction,

T.D.L. lived in Stephanie Smith’s home and under her sole care. (R30).


     On August 24, 2008 Charles and Stephanie Smith married, and

Stephanie continued to care for both T.D.L. and Charles’ son who was

also in the home. Charles was away from home approximately 70% to

80% of the time. (R29-31) (R145).


     On October 14, 2009 Charles sued his mother, Roberta, by filing

a Petition to Modify Parent-Child Relationship requesting that he be

named sole managing conservator and that Roberta be named a

possessory conservator of T.D.L. The order Charles sought to modify

was the order rendered on September 8, 2004 naming Roberta Gresham

sole managing conservator of T.D.L. (R82-83).


     On December 7, 2009 Temporary Orders in Suit to Modify

Parent-Child Relationship were entered naming Charles, Karla Sue

Lankford, and Roberta Gresham temporary joint managing

conservators of T.D.L. with Charles having the exclusive right to


                                    4
designate the primary residence of T.D.L. and Roberta having some

limited visitation. (R76-79). Charles was away from home most of the

time and T.D.L. was in Stephanie’s care. Even though Roberta as joint

managing conservator had the right to possession of T.D.L., she failed

to exercise any of her periods of possession (R30) and went almost two

years without seeing T.D.L. (R140-141).


     In December 2010 Roberta Gresham, still a joint managing

conservator of T.D.L. stopped all contact with Charles, Stephanie, and

T.D.L. (R30).


     On April 20, 2011 a dismissal order was entered dismissing the

Petition to Modify Parent-Child Relationship that Charles had filed on

October 14, 2009. (R75). The dismissal of the petition revived the prior

order entered on September 8, 2004, putting Charles back in the

position of possessory conservator of T.D.L. with no visitation and

Roberta Gresham back in the position of sole managing conservator of

T.D.L. Roberta continued to relinquish care, control, and possession of

T.D.L. to Stephanie and Charles, who was away from home most of the

time. (R30).



                                    5
     In May 2012 Charles accepted a job with Caddell Construction, a

job which required that he live nearly 8,000 miles from home in

Afghanistan. Charles voluntarily chose expatriate status which meant

that he could return to the United States only 35 days or less each year.

(R135-136).


     In July 2012 Charles left for Afghanistan, and he continues to be

employed by Caddell Construction and working in Afghanistan today.

(R 135) During his time in Afghanistan, Charles is gone approximately

90% - 94% of the time, returning home between 21 days (R31) and 35

days (R135) per year. T.D.L. remains exclusively in Stephanie’s care.

(R31).


     In August 2012, after cutting off contact with Charles, Stephanie,

and T.D.L. in December of 2010, Roberta Gresham renewed contact

with them for the first time in nearly two years, and as sole managing

conservator she continued to allow T.D.L. to live with Charles and

Stephanie, knowing that Charles was living outside the country and

absent from home most of the time. (R30-31), (R143).




                                    6
     In October 2014, from Afghanistan, Charles informed Stephanie

that he wanted a divorce. (R118).


     On November 14, 2014, Stephanie filed an Original Petition for

Divorce and Petition in Suit Affecting Parent-Child Relationship in

Angelina County. Stephanie requested that she and Charles be

appointed joint managing conservators of T.D.L. and that she be

designated as the conservator with the exclusive right to determine the

primary residence of T.D.L. (R62-71).


     On December 1, 2014, Stephanie filed Petitioner’s Motion to

Sever and to Consolidate Cause of Action asking that the Petition in

Suit Affecting Parent-Child Relationship be severed and consolidated

with the existing SAPCR, Cause Number 35,254-02-11. (R57-58).


     On December 2, 2014, Charles filed Respondent’s Original

Answer and Counter-Petition for Divorce and Original Answer in Suit

Affecting the Parent-Child Relationship (R43-53) and Respondent

Lankford’s Motion to Sever (R40-42).


     On December 5, 2014, the trial court entered the Order

Granting Plaintiff’s Motion to Sever and to Consolidate Severed Cause

                                    7
of Action, severing the Suit Affecting Parent-Child Relationship and

consolidating it with the existing cause number. (R32).


     To recap the timeline, it shows that during the period September

8, 2004 to January 2007, Roberta was the sole managing conservator of

T.D.L., and Charles was a possessory conservator with no provision for

visitation. While Charles worked away from home, T.D.L. lived with

Roberta until January 2007 when Charles, T.D.L. and Stephanie began

living together and Roberta, as sole managing conservator, relinquished

care, control, and possession of T.D.L. to Charles and Stephanie.


     From January 2007 to December 7, 2009, Roberta remained sole

managing conservator of T.D.L., but she continued to relinquish care,

control and possession of T.D.L. to Charles and Stephanie even though

she knew that Charles was away from home 50% to 70% of the time.

(R29-31).


     From December 7, 2009 until April 20, 2011, Charles was the joint

managing conservator with the exclusive right to designate the primary

residence of T.D.L. He worked away from home 70% of the time (R30),

(R45). This period is the only hiatus during which Roberta was not the


                                    8
managing conservator with the exclusive right to designate the primary

residence of T.D.L.


     From April 20, 2011to May 12, 2015 Roberta was sole managing

conservator with the exclusive right to designate the primary residence

of T.D.L., the order entered on September 8, 2004 having been revived.

During this time, Roberta, as sole managing conservator, continued to

relinquish care, control and possession of T.D.L. During this period

Charles was away from home 70% (R29-31) to 94% (R135-136) of the

time, and Stephanie was the sole caretaker of T.D.L.


     As managing conservator Roberta had the exclusive right to

determine the primary residence of T.D.L.; however, Roberta did not

move T.D.L. into her home, continued to have no contact with T.D.L.

(R30-31), took no role in parenting T.D.L., had no day to day contact

with T.D.L., and made no decisions regarding T.D.L. ( R143). Roberta

acknowledged that while she was sole managing conservator, she did

not see T.D.L. for a period of two years (R201). Roberta acknowledged

that on March 5, 2015, she did not know who T.D.L.’s teachers were.

(R201).



                                    9
     One thing the parties agree on is that during the past 8 years

Stephanie Smith has been a good mother to T.D.L. (R154 -155). With

little help from either Charles or Roberta she has reared a child who is

successful in almost every aspect of her life including academics and

sports.


                     SUMMARY OF THE ARGUMENT


     This case presents the question of how to define actual care,

control, and possession. Texas Family Code §102.003(a)(9) gives

standing to file an original suit to a person, other than a foster parent,

who has actual care, control, and possession of the child for at least six

months ending not more than 90 days preceding the date of the filing of

the petition. The courts of appeals are divided as to whether the statute

requires legal, exclusive care, control, and possession or whether it

requires non-exclusive but permanent and consistent care, control, and

possession. The majority of the courts have adopted what we believe is

the better reasoned course finding that the term actual control need not

be legal control and that the party seeking standing need not have

exclusive control.



                                     10
                 ARGUMENT AND AUTHORITIES


     The purpose of Texas Family Code §102.003(a)(9) is to create

standing for those who have developed and maintained a relationship

with a child over time, T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex

App—San Antonio 1992 , no writ); Jasek v. Tex. Dept. of Family and

Protective Services, 348 S.W.3d 523 (Tex. App – Austin 2011). There is

no doubt that Stephanie Smith developed and maintained a

relationship with T.D.L. over an extended period of time.


I.   Actual Possession – Has Stephanie Smith had Actual Possession

of T.D.L. for the Requisite Time?


     Stephanie Smith has had possession of T.D.L. for more than 8

years. When Stephanie began living with Charles in 2007, T.D.L. was

nearly 5 years old; she is now 13 years old. The record shows that since

January 2007 Stephanie has had continuous and uninterrupted

possession of T.D.L. Because of Charles’ extended absence from the

home, Stephanie was the sole caretaker of T.D.L. a minimum of 50% of

the time up to 94% of the time (R30), (R29-31), (R135),(R145). The

managing conservator, Roberta, relinquished possession of T.D.L. and


                                    11
abdicated her responsibilities as managing conservator, even going for a

period of two years without contacting or seeing T.D.L. (R29-31) ,

(R140-141). When asked T.D.L.’s age on cross examination, Roberta

was unable to respond correctly. (R 203). Contrary to Relator’s

assertion that he, T.D.L. and Stephanie lived in “his” house, the home

in which they lived belonged to Stephanie. (Transcript of Court’s

Interview with T.D.L., Page 6, Lines 22-23).


II.   Actual Care – Has Stephanie Smith Provided Actual Care for

T.D.L.?


      Stephanie Smith assumed all the usual responsibilities and duties

of a parent, and in both her mind and the mind of T.D.L. she fills the

role of mother. Children want to be in a place where they feel secure

and with people who love them. It is without doubt that T.D.L. has

forged a strong relationship with Stephanie, her primary caretaker for

most of her life, and considers Stephanie to be her mother.


      During direct examination by Roberta’s lawyer, Stephanie Smith

testified as follows: (R185 -186).


      Line 23    Q.    And who is the mother listed there?

                                     12
                A.   Stephanie Lankford.


                Q.   That’s you, right? You’re not her mother,


     are you?


                A.   No, I’m not her birth mother; but, yes I am her


     mother.


                Q.   You love her and she loves you and ---


                A.   I didn’t give birth to her, if that is what you


     want to know, but I am her mother.


(R187 -188)


     Line 25    Q.   And in that do you also show on that – put in


     here that you are the mother, correct?


                A.   Yes, sir.


                Q.   And then down here you say that you are

stepmom.


                A.   Yes, sir.


                                   13
                   Q.   Okay. So which is it?


                   A.   By paper I’m stepmom, but in her eyes I’m her


     mother.


     During the Court’s interview with T.D.L. the child reflected

Stephanie’s sentiments regarding their relationship as mother and child

as follows:


Transcript of Court’s Interview with T.D.L., Page 11, Lines 7-11


     Line 7        Q.   How do you consider Stephanie? Is that your


              stepmother or –


                   A.   I consider her as my mom.


                   Q.   You consider her as your mom?


                   A.   Yes, sir.


     On cross-examination by her lawyer, Stephanie Smith testified as

follows: (R173)


     Line 11       Q.   Tell the Court what relationship you have with


     her regarding responsibility of this child?

                                    14
                 A.   She’s my daughter, and I love her.


     Charles acknowledged that a parent-child bond existed between

Stephanie and T.D.L. During cross-examination by Stephanie’s lawyer,

Charles testified as follows: (R154-155)


     Line 21     Q.   Have you ever sent or texted an email


     complimenting Ms. Lankford, Ms. Smith, your wife, on how


     well she has taken care of the child?


                 A.   Yes.


                 Q.   In fact, she is a good mother, isn’t she?


                 A.   She does treat her well, yes.


                 Q.   And, in fact, it’s not odd that the child should


     bond with her and consider her as her mother, is it, sir?


                 A.   No, it is not odd.


     Stephanie Smith took T.D.L. to the doctor when she was ill and for

well-child checkups and immunizations, informing Charles after the

fact. (R164-165). Stephanie Smith fed and clothed T.D.L., took care of

                                    15
her when she was ill, (R 211), enrolled her in school, took her to school,

helped her with her home work , helped her study for tests, disciplined

her, instilled in her spiritual precepts, taught her right from wrong,

took her to church, and taught her to be a young lady. (R171-174).


III.   Control – Did Stephanie Exercise Actual Control over T.D.L.?


       After hearing the evidence in a hearing that lasted several hours

and after hearing testimony from five witnesses Judge Register, the

sitting judge in Angelina County Court at Law Number One who

happens to be a board certified family law expert, made the following

finding: (R225).


       Lines 5-12      And my finding is she’s going to get to stay in

court, and she’s got standing for the simple reason is because the father

let her have that standing basically by his actions. That is to say, Mr.

Lankford, you relied on your wife to take over the parental role of

the mother of the child (emphasis added), and I think in doing so you

let her in the door.


       For a period of more than 8 years, Stephanie Smith, because of the

absence of Charles and the inattentiveness of Roberta, assumed actual

                                    16
control of T.D.L.’s life. The child has lived in Stephanie’s home for

several years, Stephanie tended to her physical and emotional needs on

a daily basis, she enrolled her in school, was listed as a parent on

T.D.L.’s school records, attended school activities, communicated

directly with her teachers, took her to school and picked her up from

school, prepared her meals, and oversaw her homework. (R 170-173).


        The apathy and inattentiveness of Roberta, the managing

conservator, and of Charles, the father and possessory conservator, is

reflected when looking at the list of persons authorized to pick up

T.D.L. from school. Neither Charles, the father, nor Roberta, the

managing conservator are mentioned on that list. The only individuals

on the list are Stephanie Smith, her two sisters, and her mother.

(R172-173). The school emergency contacts are predominately

Stephanie Smith’s family, her two sisters who are listed as T.D.L.’s

aunts and her mother who is listed as T.D.L.’s grandmother. (R276,

279).


        While Roberta’s name, address and signature appear on some

school records for purposes of enrollment, the record is clear that T.D.L.



                                    17
resided in Stephanie Smith’s home and Stephanie had ongoing physical

custody and daily control of T.D.L.


     Both Roberta and Charles admitted that they did not know who

T.D.L.’s teachers were. (R20-202), (R147). Charles admitted that he

had never attempted to contact T.D.L.’s teachers or ever made a direct

inquiry to any teacher about T.D.L. (R148) and further admitted that

the only contact he had with school was through his wife, Stephanie,

(R148) indicating that he had abdicated his parental responsibility to

Stephanie. Contrary to Charles’ testimony that he remained in close

contact with T.D.L. talking with her on the phone twice each week

while he was away from home (R120, 138, 151), when asked how many

times since 2008 Charles had called home and asked to speak to T.D.L.,

Stephanie testified that when he called home he never called to speak

to T.D.L. (R178).


     When responding on cross examination, Charles testified as

follows: (R148).


     Line 14 Q.         And you have relied on your wife to take care of


     Line 15       everything regarding this child from the time that you

                                      18
       Line 16    married her until the present time; is that right?


       Line 17 A. I have allowed her to take care of things in my absence,

yes.


       Stephanie Smith was authorized to make medical decisions and

consent to medical treatment and hospital care for T.D.L. (R264, 265)

Agreeing that he was gone from home at least 80% of the time, Charles

acknowledged that he gave his consent for Stephanie to make medical

decisions regarding T.D.L. at least 80% of the time. (R146).


       T.D.L. is a bright, precocious, young lady who is considered by

almost everyone to excel in sports including basketball and softball.

Stephanie and her family are T.D.L.’s biggest fans, attending all of her

sporting events. Sadly, Roberta Gresham, the sole managing

conservator, and Charles, T.D.L.’s father, have never attended any of

T.D.L.’s games. (R202), (R137). Robby Fletcher, T.D.L.’s basketball and

softball coach, who coached her for some 26 games during the school

year 2014-2015 and conducted practices two times a week for the entire

school year testified before the trial court, and when asked if he knew

Charles, he replied that he had never seen him before. When asked if


                                     19
he knew Roberta, Mr. Fletcher’s response was the same. When asked

who brought the child to practice, he testified that Stephanie Smith

brought her 99% of the time and her brother, Ms. Smith’s older son,

brought her the remainder of the time. (R206-207) As in every other

aspect of T.D.L.’s life, Stephanie Smith has taken actual control.


     Undoubtedly, Stephanie Smith, based on the Jasek standard, has

developed and maintained a relationship with T.D.L. over a long period

of time. It might be argued that Stephanie’s possession of T.D.L. was

not exclusive in that Charles contended that he retained certain rights

in the child, particularly the rights to control. However, the First Court

of Appeals held that the actual care, the actual control, and the actual

possession of the child need not be exclusive, In Re Fountain 433 S.W.

3d 1; 2012, Tex. App Lexis 1081 and that requiring exclusivity would

impose a requirement not intended by the Legislature. Id. at 4.


     The Third Court of Appeals in Austin analyzed the concept of

control in Texas Family Code 102.003(a)(9) and disapproved of the

notion that “actual control” necessarily meant legal authority to make

decisions for the child. The Austin Court correctly points out that the

word “actual” as used in 102.003(a)(9) is intended to indicate something
                                    20
that exists in fact as opposed to something that is a function of legal

duties or imputation. Jasek v. Tex. Dept. of Family and Protective

Services, 348 S.W.3d 523, 535-536 (Tex. App – Austin 2011).


      The Austin Court of Appeals disagreed with the case out of the

Fort Worth Court of Appeals, In re Kelso, 266 S.W.3d 586, 590 (Tex.App

– Fort Worth 2008, no pet.) as well as the case out of the Beaumont

Court of Appeals, In re KKC, 292 S.W.3d 788, 792-93 (Tex.App.—

Beaumont 2009, no pet.). In both of these cases the Fort Worth court

and the Beaumont court held that to meet standing requires “legal

control” over the children, ignoring the wording in the statute that

requires “actual control.”


      In the case In re Kelso, the Fort Worth court held that the

Petitioners lacked standing under Texas Family Code § 102.003(a)(9)

because they could not show they had actual care, control, and

possession since they only had possession of the child if the mother gave

her permission. The court found that the mother maintained control as

to when and for how long the child stayed with Petitioners and had not

voluntarily relinquished permanent care, control, and possession of the

child to Petitioners for the requisite time before filing their suit. In re
                                      21
Kelso 266 S.W.3d at 590-591 (Tex. App. – Fort Worth 2008, orig.

proceeding).


           Disagreeing with Kelso, the Austin court held that there is

no language in §102.003(a)(9) that requires voluntary relinquishment

of care, possession, or control of the child by the parent or conservator.

Jasek v. Tex. Dept. of Family and Protective Services, 348 S.W.3d 523,

535 (Tex. App – Austin 2011). A court cannot add words to a statute;

that is solely the Legislature’s prerogative. Lee v. City of Houston, 807

S.W.2d 290, 295 (Tex. 1991).


     In the case In re K.K.C., the Beaumont court found that the

former boyfriend who has resided in the home with the biological

mother and the child lacked standing because he had no legal right of

control over the child and no authority to make decisions on behalf of

the child. In re KKC, 292 S.W.3d 788, 792-93 (Tex.App.—Beaumont

2009, no pet.).


     The Austin court disagreed with the Beaumont court’s holding in

In re KKC that to establish standing, a party had to have the legal right

of control over a child. In In re KKC the biological mother resided in


                                     22
the home with the Petitioner and the child. There was no indication

she abdicated her parental rights and no evidence that all parental

responsibility was turned over to Petitioner. However, in the case at

bar, the parent and the managing conservator were absent and

Stephanie assumed the role of and responsibilities of a parent, whether

legally or constructively. Charles, who was gone from home the

majority of the time, was willing to give Stephanie all legal right to

make decisions for the child. The case at bar can be harmonized with

cases from the Beaumont court and with In re Kelso from the Fort

Worth court.


     The Austin court reasoned that requiring a person seeking

standing under 102.003(a)(9) to have the ultimate legal right to control

a child requires reading words into the statute that are not there and

renders the word “actual” superfluous at best and meaningless at worst.

In a legal context, “actual” is used to distinguish between something

that exists in fact rather than as a function of legal implication. The

court noted that if the Legislature wanted to limit standing only to

those persons with the legal right to control a child, then it would have

omitted the word “actual” or added the word “legal.” The court

                                    23
concluded that the Legislature used the word “actual” because it

intended to confer standing on a person who had actual care, control,

and possession of the child for at least six months and had developed

and maintained a relationship with the child, as distinguished from a

bare legal right of care control and possession. Jasek v. Tex. Dept. of

Family and Protective Services, 348 S.W.3d 523, 532-537 (Tex. App –

Austin 2011).


     To establish standing, Jasek held that the party must show actual

control, meaning the actual power or authority to guide or manage the

child or the actual directing or restricting of the child without regard to

whether the party has the legal or constructive power or authority to do

so, and that actual control means the development and maintenance of

a relationship with a child by a nonparent involving the actual exercise

of guidance, governance, and direction similar to that typically

exercised by a parent with his or her child, Jasek v. Tex. Dept. of Family

and Protective Services, 348 S.W.3d 523, 532-537 (Tex. App – Austin

2011), see also In the Interest of ACFH and DABH 373, S.W.3d 148, 153

(Tex.App. San Antonio 2012) .




                                     24
                             CONCLUSION


     The purpose of Texas Family Code §102.003(a)(9) is to create

standing for those who have developed and maintained a relationship

with a child over time, T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex

App—San Antonio 1992), no writ; Jasek v. Tex. Dept. of Family and

Protective Services, 348 S.W.3d 523 (Tex. App – Austin 2011).


     Contrary to the facts in the case In re Kelso, T.D.L. resided in the

home of Stephanie Smith for a period of 8 years and during that time

Stephanie made decisions regarding medical care and school

enrollment, provided discipline, nurtured the spiritual aspect of her life,

interfaced directly with her teachers, attended to her homework and

studies, provided for extra-curricular activities, and took care of all of

T.D.L.’s daily needs.


     Consider that Relators who filed this action are the parent and

grandparent of T.D.L., yet neither of them knew the names of T.D.L.’s

teachers, had any contact with her teachers, had attended any of

T.D.L.’s basketball or softball games, had met her coach or had any

contact with him. When questioned by Judge Register about her desire


                                     25
to visit Roberta, her grandmother, the child said she would be “a little

bit” unhappy if she had to spend one week-end a month with her.

(Transcript of Court’s Interview with T.D.L., Page 8, Lines 8-12).

     T.D.L. further said that if she had to go to Roberta’s, she wanted

Stephanie to go with her. (Transcript of Court’s Interview with T.D.L.,

Page 8, Line 7). When Judge Register questioned the child about how

much time she wanted to stay with her father when he was home she

said she would go visit but she wanted to come home at night to stay

with Stephanie. When the judge asked her to consider the possibility

that her father might be home for 30 days, she replied that would be a

long time for her stay with him. After being asked by Judge Register

what would be the best arrangement for her to see her father when he

was home, her reply was “maybe a weekend.” (Transcript of Court’s

Interview with T.D.L., Page 13, Lines 6-16).


     A nonparent must show actual control, meaning the actual power

or authority to guide or manage the child or the actual directing or

restricting of the child without regard to whether the party has the

legal or constructive power or authority to do so, for a nonparent such

as Stephanie Smith to have actual control means that she must have

                                    26
developed and maintained a relationship with a T.D.L. involving the

actual exercise of guidance, governance, and direction similar to that

typically exercised by a parent with his or her child. The question as to

whether Stephanie met that burden is perhaps, best answered by Judge

Register in his ruling when he stated:


           That is to say, Mr. Lankford, you relied on your wife to take

           over the parental role of the mother of the child, and I think

           in doing so you let her in the door.




                                    27
                                PRAYER

     For the reasons stated, Stephanie Smith, a real party in interest,

prays that the Court deny Relators’ Petition for Writ of Mandamus and

for such other and further relief as may be just.


                                         Respectfully submitted,


                                         DEATON LAW FIRM
                                         103 East Denman
                                         Lufkin, Texas 75901
                                         Telephone: (936) 637-7778
                                         Fax: (936) 637-7784


                                         By: /s/ Thomas W. Deaton
                                               Thomas W. Deaton
                                               State Bar No. 05703500
                                               Carolyn Carter Bell
                                               State Bar No. 00787061
                                               Attorneys for Real Party in
                                               Interest, Stephanie Smith


                   CERTIFICATION OF REVIEW


      Pursuant to Texas Rule of Appellate Procedure 53.3(j), the
undersigned counsel for real party in interest certified that he has
reviewed this Response to Petition for Writ of Mandamus and concluded
that every factual statement in the Petition is supported by competent
evidence included in the Appendix, Record, and Supplemental Record.


                                                    /s/ Thomas W. Deaton
                                                     Thomas W. Deaton
                                    28
 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(i)

       This response was prepared in Century Schoolbook 14 pt. typeface
using Microsoft Word 2010, and, in reliance on the word count of the
computer program used to prepare the document, I certify that this
response to petition for writ of mandamus contains 5020 words
excluding those matters excluded by Texas Rule of Appellate Procedure
9.4(i)(1).



                                              /s/ Thomas W. Deaton
                                               Thomas W. Deaton



                    CERTIFICATE OF SERVICE

      I certify that the foregoing response to petition for writ of
mandamus was electronically filed with the Clerk of the Court using the
electronic case filing system of the Court. I also certify that on June 26,
2015, a true and correct copy of the foregoing was served via e-service or
e-mail on the following counsel of record and on Respondent.



Robert T. Cain, Jr.
Alderman Cain & Neill, PLLC
122 East Lufkin Avenue
Lufkin, Texas 75901
e-mail rcain@aldermancainlaw.com

Robert Alderman, Jr.
Alderman Cain & Neill, PLLC
122 East Lufkin Avenue
Lufkin, Texas 75901
e-mail balderman@aldermancainlaw.com

Counsel for Relator Charles Dwayne Lankford
                                    29
Robert L. Flournoy
Law Offices of Robert L. Flournoy
P.O. Box 1546
Lufkin, Texas 75902-1546
e-mail bob@rlflournoylaw.com


Counsel for Relator Roberta Gresham



The Hon. Joe Lee Register
Angelina County Court at Law Number One
P.O. Box 908
Lufkin, Texas 75902-0908
e-mail lberry@angelinacounty.net

Respondent




                                          /s/ Thomas W. Deaton
                                           Thomas W. Deaton




                                    30
SUPPLEMENTAL RECORD
                        INDEX TO APPENDIX

Real Party in Interest has adopted the Cases and Statute filed in
Relators’ Petition for Writ of Mandamus as noted on their Index of
Appendix. Pursuant to TRAP §52.4(e) this Index of Appendix does not
contain cases cited in this Response to Petition for Writ of Mandamus
that are already contained in Relators’ index, only those cases not in
Relators’ index are included.

CASES


In Re Fountain 433 S.W. 3d 1; 2012, Tex. App Lexis 1081


In the Interest of ACFH and DABH 373 S.W.3d 148, 153 (Tex.App. San

     Antonio 2012)


Lee v. City of Houston 807 S.W.2d 290 (Tex. 1991)
APPENDIX
                                                                                                                Page 1




                                       IN RE TAMMY FOUNTAIN, Relator

                                                 NO. 01-12-00704-CV

                       COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

                                     433 S.W.3d 1; 2012 Tex. App. LEXIS 10801


                                         December 28, 2012, Opinion Issued

PRIOR HISTORY: In re Fountain, 2011 Tex. App.                       Dean, presiding.
LEXIS 3327 (Tex. App. Houston 1st Dist., May 2, 2011)
                                                                 Finding no abuse of discretion in the trial court's
                                                             revocation of its prior suspension of commitment, we
JUDGES: [**1] Panel consists of Justices Keyes,              deny the petition.
Massengale, and Brown. Justice Keyes, dissenting.
                                                             Background
OPINION BY: Michael Massengale
                                                                  This is the second time Fountain has sought relief in
                                                             this court [**2] from the proceedings in a suit affecting
OPINION
                                                             her parental relationship with her adopted son. See In re
                                                             Fountain, No. 01-11-00198-CV, 2011 Tex. App. LEXIS
 [*3] Original Proceeding on Petition for Writ of            3327, 2011 WL 1755550 (Tex. App.--Houston [1st Dist.]
Habeas Corpus                                                May 2, 2011, orig. proceeding) (opinion on rehearing).
                                                             After we denied mandamus relief from the denial of a
     In this habeas corpus proceeding, relator Tammy         motion to dismiss the underlying suit, Fountain agreed to
Fountain challenges the legality of her confinement for      the entry of an order which appointed her as sole
violating an agreed order in a suit affecting the            managing conservator and Kathy Katcher as a nonparent
parent-child relationship.* Fountain stipulated that she     possessory conservator. Among other things, the October
violated the order, which resulted in findings of contempt   18, 2011 agreed order provided that within 30 days each
and an order committing her to a 60-day jail sentence.       party was to "permit the other conservator to obtain
The commitment order was suspended, conditioned upon         health-care information regarding the child" and
Fountain's continuing compliance with court orders.          authorize the disclosure of "protected health information
Acting on a motion to revoke the suspension of               to the other conservator." This order also required each
commitment, the trial court subsequently found that          party to notify the "other party, the court, and the state
Fountain had committed further violations of the court's     case registry" of any change in the party's contact
orders, and it ordered that she be taken into custody in     information, including current residence, phone number,
accordance with the prior contempt order.                    and employer contact information. Fountain and Katcher
                                                             were also required to provide notification of any intended
       * The underlying case is In the interest of S.F., a   change in this residency and contact information "on or
       child, No. 2010-31997 in the 309th District Court     before the 60th day before the intended change." If a
       of Harris County, Texas, the Honorable Sheri          party did not know of the change in [**3] time to
                                                                                                                   Page 2
                                 433 S.W.3d 1, *3; 2012 Tex. App. LEXIS 10801, **3



provide the 60-day notice, then notice was required "on       Katcher could visit the child for lunch, pick him up from
or before the fifth day after the date that the party knows   class, and attend school activities. Third, she argued that
of the change."                                               Fountain had violated the provision of the modification
                                                              order requiring communication within 36 hours through
     Several months after the entry of the October 18         Our Family Wizard about changes to the scheduled
agreed order, Katcher moved to enforce that order for         possessory period with the child.
Fountain's failure to comply. The trial court held two
hearings on May 3 and May 11, 2012. The parties                    After a hearing, the trial court revoked the
stipulated, and the court found, that Fountain violated the   suspension of Fountain's commitment in an order dated
October 18 order by failing to execute releases and           July 31, 2012. The court found that Fountain had violated
thereby failing to permit Katcher to obtain health-care       the prior orders three times. First, she had failed to
information regarding the child, as required by the agreed    "provide the required notice" that she was moving on
order. In an order dated May 24, 2012, Fountain was           June 22 when she mailed notice of the move to Katcher
found to be in contempt and ordered to be committed to        on "June 18, 2012." Second, Fountain had failed to
the Harris County Jail for a period of 60 days as             inform the school by May 15 that Katcher had permission
punishment. In the same order, the 60-day jail sentence       to access the child there. Third, Fountain had failed to
was suspended on the condition that she comply with the       post information to Our Family Wizard as required. The
October 18 agreed order and with additional provisions        district court ordered that Fountain be committed in
contained in a new modification order which, like the         accordance with "the orders attached hereto as Exhibits
contempt order, was also dated May 24, 2012.                  A, B, and C." A copy of the May 24 commitment order
                                                              was attached as Exhibit A. On its second page, that order
     The May 24 modification order required, among            provided that "punishment for the [**6] violation set out
other provisions, that Fountain notify the child's schools    above is assessed at confinement in the Harris County
in writing that Katcher could have lunch with the child at    Jail for a period of sixty (60) days." Fountain was taken
[*4] school, attend school activities, and "receive [**4]     into the custody of the jail on the same day.
all school notices, including all email notices normally
sent to parents." Fountain was required to provide this           Fountain filed an original petition for writ of habeas
notice to the child's current school by May 15, a date        corpus seeking relief in this court, raising five issues. We
which was four days after the May 11 hearing but nine         ordered her released on bond pending our determination
days before the May 24 order giving rise to this new          of her petition. See TEX. R. APP. P. 52.10.
obligation was actually entered. Additionally, the
modification order obligated both parties to exchange a       Analysis
variety of information through an internet application
                                                                   A final order for possession of or access to a child
called "Our Family Wizard." The parties were also
                                                              may be enforced by means of a motion for enforcement
required to promptly update this data, within 36 hours of
                                                              as provided by chapter 157 of the Family Code. TEX.
any change to any of the initially exchanged data or to
                                                              FAM. CODE § 157.001(a) (West 2008). Such an order
other specified scheduling matters, including but not
                                                              may be enforced by contempt, as also provided by
limited to the inability to exercise a period of possession
                                                              chapter 157. Id. § 157.001(b). Chapter 157 specifies
or knowledge that the child would not be attending a
                                                              particular information that a motion for enforcement must
previously scheduled extracurricular activity.
                                                              provide "in ordinary and concise language," including
     Approximately one month later, Katcher moved to          identification of "the provision of the order allegedly
revoke the suspension of Fountain's commitment.               violated and sought to be enforced," "the manner of the
Katcher alleged multiple violations of the prior orders,      respondent's alleged noncompliance," and "the relief
three of which are relevant in this proceeding. First, she    requested by the movant." Id. § 157.002(a). A motion to
alleged that Fountain had failed to give her sufficient       enforce the terms and conditions of access to a child must
notice of changes to the child's residence when Fountain      also include "the date, place, and, if applicable, the time
notified her of a change of residence to Galveston County     of [*5] each occasion of the respondent's failure [**7]
effective [**5] three days later. Second, she alleged that    to comply with the order." Id. § 157.002(c). Chapter 157
Fountain had not timely notified the child's school that      sets forth detailed procedures for hearings on
                                                              enforcement motions.1
                                                                                                                   Page 3
                                 433 S.W.3d 1, *5; 2012 Tex. App. LEXIS 10801, **7



       1 See TEX. FAM. CODE ANN. §§ 157.061-.168.                    copy of the motion and notice not later than the
       For example, upon the filing of a motion for                  10th day before the date of the hearing.").
       enforcement requesting contempt, the trial court
       shall set the date, time, and place of the hearing          In her petition, Fountain alleges numerous
       and order the respondent to personally appear and      deficiencies and errors in the motion and order that
       respond to the motion. Id. § 157.061(a). The           revoked the suspension of her commitment to jail. A
       respondent is entitled to receive personal service     commitment order is subject to collateral attack in a
       of a copy of the motion and notice not later than      habeas corpus proceeding. In re Henry, 154 S.W.3d 594,
       the 10th day before the date of the hearing. Id. §     596 (Tex. 2005); see TEX. GOV'T CODE ANN. § 22.221(d)
       157.062(c). If a respondent who has been               (West 2004) (granting the appellate courts the power to
       personally served with notice nevertheless fails to    issue writs of habeas corpus). The purpose of the habeas
       appear at a hearing, the court may not hold the        corpus proceeding is not to determine the guilt or
       respondent in contempt but may, on proper proof,       innocence of the relator, but only to determine whether
       grant a default judgment for the relief sought and     she has been unlawfully restrained. Ex parte Gordon, 584
       issue a capias for the arrest of the respondent. Id.   S.W.2d 686, 688 (Tex. 1979). We initially presume that
       § 157.066.                                             the contempt order is valid. In re Turner, 177 S.W.3d
                                                              284, 288 (Tex. App.--Houston [1st Dist.] 2005, orig.
     One potential outcome of a hearing on an                 proceeding). But the writ will issue if the trial court's
enforcement motion requesting contempt findings and           contempt order is beyond the court's power or the court
sanctions is that the trial court "may place the respondent   did not afford the relator due process of law. Id. (citing
on community supervision and suspend commitment if            Henry, 154 S.W.3d at 596).
the court finds that the respondent is in contempt of court
for failure or refusal to obey an order rendered as                The relator bears the burden of showing that she is
provided in this title." [**8] Id. § 157.165. Community       entitled to relief. Id. In [**10] reviewing the record, we
supervision under chapter 157 is subject to different         do not weigh the proof; rather, we determine only if the
procedures from those applicable to enforcement               judgment is void because, for example, the relator has
motions. The procedures governing community                   been confined without a proper [*6] hearing or with no
supervision are detailed in a distinct subchapter. Under      evidence of contempt to support her confinement. Ex
that subchapter, a "party affected by the order may file a    parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995); see
verified motion alleging specifically that certain conduct    TEX. GOV'T CODE ANN. § 22.221(d) (providing that courts
of the respondent constitutes a violation of the terms and    of appeals exercise jurisdiction over habeas corpus
conditions of community supervision." Id. § 157.214.          petitions "[c]oncurrently with the supreme court").
Unlike the procedures generally applicable to a motion to
                                                              I. Punishment
enforce, a prima facie showing of a violation of a
condition of community supervision can result in the               In her first issue, Fountain argues that the July 31
immediate arrest of the respondent, id. § 157.215,            revocation order was void because it did not clearly state
followed by a hearing on the motion to revoke                 the punishment imposed. She notes that the order,
community supervision within three days.2 "After the          including its three attachments, is 37 pages long, but that
hearing, the court may continue, modify, or revoke the        the text of the order itself does not specify the length of
community supervision." Id. § 157.216(c).                     the jail sentence or identify which attachment contains
                                                              the sentence. Fountain does acknowledge, however, that
       2 Compare id. § 157.216(a) ("The court shall
                                                              the May 24 contempt order was attached to the July 31
       hold a hearing [on motion to revoke community
                                                              revocation order and specified a 60-day jail sentence.
       supervision] without a jury not later than the third
       working day after the date the respondent is                Fountain relies upon Family Code section
       arrested under Section 157.215.") with id. §           157.166(a)(4) for the proposition that "an enforcement
       157.062(c) ("Notice of hearing on a motion for         order must include 'the relief granted by the court.'" This
       enforcement of an existing order providing for . . .   provision is contained within subchapter D of chapter 157
       possession [**9] of or access to a child shall be      relating generally to [**11] enforcement hearings and
       given to the respondent by personal service of a       orders in suits affecting the parent-child relationship. See
                                                                                                                    Page 4
                                  433 S.W.3d 1, *6; 2012 Tex. App. LEXIS 10801, **11



TEX. FAM. CODE § 157.001(a) ("A motion for                      revoked the suspension of the previously entered 60-day
enforcement as provided in this chapter may be filed to         sentence.
enforce a final order for conservatorship, child support,
possession of or access to a child, or other provisions of a         The May 24 contempt order provided on its second
final order."). Section 157.166 does specify certain            page that "punishment for the violation set out above is
contents which must be included in an enforcement order,        assessed at confinement in the Harris County Jail for a
including "the relief granted by the court." See id. §          period of sixty (60) days." This clearly stated the
157.166(a)(4). But the provision is not part of subchapter      punishment imposed, contrary to Fountain's assertion that
E, which relates specifically to community supervision,         it was hidden. "There is no particular form required of
including proceedings to revoke community supervision.          either the order of contempt or the commitment order,
See id. §§ 157.211-.217.                                        provided that their essential elements appear in a written
                                                                document." Ex parte Snow, 677 S.W.2d 147, 149 (Tex.
     Although Fountain's legal challenges are directed at       App.--Houston [1st Dist.] 1984, no writ). We overrule
the July 31 revocation order, the actual enforcement order      Fountain's first issue.
at issue in this proceeding is the May 24 contempt order.
Fountain does not complain that this order failed to            II. Grounds for revocation of suspension
identify "the relief granted by the court"--indeed, she
                                                                     In her four remaining issues, Fountain argues that
concedes that it did. Her complaint, instead, is that the
                                                                Katcher's motion for revocation and the trial court's July
relief was not expressly stated in the July 31 revocation
                                                                31 revocation order fail to satisfy the procedural
order, and that referencing the May 24 contempt order
                                                                standards of Family Code chapter 157 in several respects.
and attaching it to the July 31 revocation order was the
                                                                In her second issue, she argues that the judgment of
equivalent of not including it at [**12] all. As
                                                                contempt cannot be enforced based on violations [**14]
characterized by Fountain, "[h]iding this requirement [of
                                                                of the May 24 modification order because the conditions
a statement of 'the relief granted by the court'] is the
                                                                of suspension in the May 24 contempt order mistakenly
equivalent of not including it."
                                                                reference the "Modification Order of May 25, 2012." In
     We disagree with the suggestion that the statement of      her third issue, she argues that although Katcher's motion
the relief granted by the court was "hidden" in any             to revoke alleged that she violated the October 18 agreed
relevant sense. Fountain relies on In re Levingston, 996        order by mailing a notice on June 19, 2012, the trial court
S.W.2d 936, 938 (Tex. App.--Houston [14th Dist.] 1999,          found that the violation was committed on June 18, 2012,
no pet.), and Ex parte Waldrep, 783 S.W.2d 332, 333             and therefore is "not supported by the pleadings." The
(Tex. App.--Houston [14th Dist.] 1990, orig. proceeding),       fourth issue relates to the requirement in the May 24
for the proposition that "the purpose of the commitment         contempt order that certain information be provided by
order is to notify the offender of how she has violated its     May 15--before that order was actually entered. And the
provisions, to notify the sheriff so that he can carry out      fifth issue complains of the specificity of the motion to
enforcement, and to provide sufficient information for an       revoke and the revocation order with respect to the
adequate review." We do not question this principle. See,       allegation and finding that Fountain interfered with
e.g., In re Luebe, No. 01-09-00908-CV, 404 S.W.3d 589,          Katcher's participation in school lunches by failing to
2010 Tex. App. LEXIS 2597, 2010 WL 1546961 (Tex.                timely share information about the child's schedule on
App.--Houston [1st Dist.] Apr. 2, 2010, no pet.); Turner,       Our Family Wizard in violation of the court's orders.
177 S.W.3d at 289. However, Fountain provides no
                                                                     One misconception underlies each of these issues in
argument about how she lacked adequate notice of the
                                                                common. Fountain wrongly assumes that Katcher's
sentence, what information is missing for law
                                                                motion to revoke and the trial court's revocation order
enforcement purposes, or how our review has been
                                                                must satisfy all of the procedural safeguards for an
impaired. To the contrary, the record is clear that
                                                                enforcement motion under subchapter D of chapter
Fountain was sentenced to a 60-day jail sentence in the
                                                                [**15] 157, as if a separate allegation, finding, and
May 24 [**13] contempt order, that the sentence was
                                                                sentence for contempt of court were at issue. In other
suspended on the condition of her future compliance with
                                                                cases, these safeguards in fact have been applied under
the court's orders, and that on July 31 the trial court found
                                                                circumstances when a party has been found in contempt
that such orders had been violated and accordingly [*7]
                                                                and sentenced, the commitment has been suspended
                                                                                                                   Page 5
                                 433 S.W.3d 1, *7; 2012 Tex. App. LEXIS 10801, **15



subject to compliance with specified conditions, and then      WL 5232147 (Tex. Crim. App. Oct. 24, 2012); see also In
in further proceedings to revoke the suspension of             re Butler, 45 S.W.3d 268, 272 (Tex. App.--Houston [1st
commitment, a trial court made additional findings of          Dist.] 2001, no pet.) ("Proceedings in contempt cases
contempt and imposed a different punishment. In such           should conform as nearly as practicable to those in
circumstances, with new allegations of contempt and            criminal cases."). In the case of an order revoking
enhanced sanctions, the motion to revoke does not merely       community supervision, proof of any one violation of the
invoke a previously rendered judgment of contempt, but         conditions of suspension is sufficient to support the
the new motion instead functions as a separate                 revocation order. See In re Bourg, No. 01-07-00623-CV,
enforcement motion for purposes of chapter 157. See,           2007 Tex. App. LEXIS 6977, 2007 WL 2446844 (Tex.
e.g., In re Broussard, 112 S.W.3d 827, 831 (Tex.               App.--Houston [1st Dist.] Aug. 27, 2007, no pet.)
App.--Houston [14th Dist.] 2003, no pet.); Ex parte            (holding proof of any one violation of an order revoking
Bagwell, 754 S.W.2d 490, 493 (Tex. App.--Houston [14th         suspension of commitment for contempt is sufficient to
Dist.] 1988, no writ); Ex parte Durham, 708 S.W.2d 536,        support revocation); In re B.C.C., 187 S.W.3d 721, 724
537 (Tex. App.--Dallas 1986, no writ).                         (Tex. App.--Tyler 2006, no pet.).

     In this case, however, although Katcher alleged and            Accordingly, we must deny relief if the revocation
the trial court found that Fountain had violated the           was justified on any basis, and in this case it was. After
conditions of the suspension of her commitment, Katcher        Fountain received notice of Katcher's [**18] motion to
did not request and the trial court did not enter additional   revoke and a hearing was held, the trial court found three
[**16] findings of contempt. Instead, as anticipated by        violations of Fountain's conditions of suspension of
chapter 157 and particularly subchapter E pertaining to        commitment. One of the violations related to Fountain's
community supervision, the trial court merely enforced         failure to comply with the trial court's order with respect
the provisions of its own suspended commitment order,          to timely informing Katcher of a planned change of
and it revoked [*8] the suspension, resulting in the           residential address. The October 18 agreed order
imposition of the original sentence imposed for the            provided, in relevant part:
original, admitted episodes of contempt.
                                                                        Required Notices
     Fountain provides no argument or authority for us to
apply subchapter D of chapter 157 and its detailed                       EACH PERSON WHO IS A PARTY
procedures applicable to an original enforcement hearing              TO THIS ORDER IS ORDERED TO
to the separate circumstance of a proceeding merely to                NOTIFY EACH OTHER PARTY, THE
determine whether to revoke the suspension of a valid                 COURT, AND THE STATE CASE
prior order of commitment for contempt, and we decline                REGISTRY OF ANY CHANGE IN THE
to do so. That approach would render ineffective the                  PARTY'S  CURRENT     RESIDENCE
common practice of suspending contempt judgments                      ADDRESS . . . . THE PARTY IS
contingent upon future compliance with court order.                   ORDERED TO GIVE NOTICE OF AN
There is no reason to deprive trial courts of such                    INTENDED CHANGE IN ANY OF THE
flexibility in the enforcement of their orders. A                     REQUIRED INFORMATION TO EACH
heightened procedural standard is justified for contempt              OTHER PARTY, THE COURT, AND
proceedings in the first instance, especially when                    THE STATE CASE REGISTRY ON OR
incarceration of the respondent is a potential result. But            BEFORE THE 60TH DAY BEFORE
once there has been a judgment of contempt, there is no               THE INTENDED CHANGE. IF THE
requirement that the same heightened measure [**17] of                PARTY DOES NOT KNOW OR COULD
process be provided in order to adjudicate an allegation              NOT HAVE KNOWN OF THE
that the conditions of a suspended judgment have been                 CHANGE IN SUFFICIENT TIME TO
violated. Instead, like the analogous circumstance of an              PROVIDE 60-DAY NOTICE, THE
appeal from the revocation of probation in a criminal                 PARTY IS ORDERED TO GIVE
proceeding, we review the trial court's ruling for an abuse           NOTICE OF THE CHANGE ON OR
of discretion. See, e.g., Bryant v. State, No. PD-0049-12,            BEFORE THE FIFTH DAY AFTER THE
391 S.W.3d 86, 2012 Tex. Crim. App. LEXIS 1383, 2012                  DATE THAT PARTY KNOWS OF THE
                                                                                                                  Page 6
                                433 S.W.3d 1, *8; 2012 Tex. App. LEXIS 10801, **18



       CHANGE.                                                    Fountain testified that she knew a move was possible
                                                             as of June 14, but she did not know until June 16 that the
          THE DUTY TO FURNISH THIS                           move would actually occur. Other evidence at the hearing
       INFORMATION TO EACH OTHER                             cast serious doubts on that testimony. The child spent the
       PARTY, THE COURT, AND THE [*9]                        weekend of June 15-17 with Katcher. During that
       STATE CASE REGISTRY CONTINUES                         weekend, the child told Katcher that he had a "condo in
       AS LONG AS ANY PERSON, BY                             Galveston" with his own bathroom, that it had a pool
       VIRTUE OF THIS ORDER, IS UNDER                        where he had been swimming, and that he been to his
       AN OBLIGATION TO PAY CHILD                            new school. Fountain admitted that the child had learned
       SUPPORT [**19] OR ENTITLED TO                         all of this information prior to June 15. Additionally, on
       POSSESSION OF OR ACCESS TO A                          June 16 Fountain leased her Houston home to an
       CHILD.                                                acquaintance. Nevertheless, Fountain insisted that she did
                                                             not know about the intended move until June 16.
           FAILURE BY A PARTY TO OBEY
       THE ORDER OF THIS COURT TO                                  The burden of proof to justify the revocation of a
       PROVIDE EACH OTHER PARTY, THE                         suspension of commitment is a preponderance of the
       COURT, AND THE STATE CASE                             evidence, meaning that greater weight of the credible
       REGISTRY WITH THE CHANGE IN                           evidence which would create a reasonable belief that the
       THE REQUIRED INFORMATION MAY                          respondent violated a condition of the suspension of
       RESULT IN FURTHER LITIGATION                          commitment. Cf. Rickels v. State, 202 S.W.3d 759,
       TO     ENFORCE    THE   ORDER,                        763-64 (Tex. Crim. App. 2006) (describing burden of
       INCLUDING CONTEMPT OF COURT.                          proof to revoke probation). [**21] We review the
       A FINDING OF CONTEMPT MAY BE                          evidence in the light most favorable to the trial court's
       PUNISHED BY CONFINEMENT IN                            judgment. See Canseco v. State, 199 S.W.3d 437, 439
       JAIL FOR UP TO SIX MONTHS, A                          (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). "The
       FINE OF UP TO $500 FOR EACH                           trial court is the exclusive judge of the credibility of the
       VIOLATION,   AND    A   MONEY                         witnesses and must determine whether the allegations in
       JUDGMENT FOR PAYMENT OF                               the motion to revoke are sufficiently demonstrated." Id.
       ATTORNEY'S FEES AND COURT
       COSTS.                                                     As the exclusive judge of the credibility of the
                                                             witnesses, the trial court obviously did not believe
            Notice shall be given to the other               Fountain's testimony that she did not know of an intended
       party by delivering a copy of the notice to           change of residential address prior to June 14. The
       the party by registered or certified mail,            circumstantial evidence relating to the move, including
       return receipt requested. . . .                       the child's knowledge of details about the new residence
                                                             and the arrangement of a tenant to lease Fountain's [*10]
                                                             Houston home, supported a reasonable belief that
     In the July 31 revocation order, the trial court        Fountain violated the agreed order's requirement that she
specifically found that Fountain had violated this           notify Katcher on or before the fifth day after she knew
provision by failing to provide Katcher the "required        of the intended change.
notice" of her plan to move to Galveston County. This
finding was supported by circumstantial evidence                  Fountain also contends that Katcher's motion to
presented at the evidentiary hearing on the motion to        revoke failed to provide her sufficient notification of this
revoke. On June 18, 2012, Fountain sent a letter to          alleged violation due to a variance in the date of her
Katcher, informing her of a change of residential address.   written notice as specified in the motion (June 19) and the
Fountain would have violated the agreed order's              date identified in the revocation order (June 18). This
"Required Notices" provision if she knew of "an intended     defect [**22] does not invalidate the revocation order.
change" of residential address [**20] before June 13, or     "It is well settled that allegations in a revocation motion
more than five days before she actually provided notice      need not be made with the same particularity of an
of the move to Katcher.                                      indictment although such allegations must be specific
                                                                                                                     Page 7
                                 433 S.W.3d 1, *10; 2012 Tex. App. LEXIS 10801, **22



enough to give the accused notice of alleged violation of       that the commitment order is void and violates her
law contrary to conditions of probation." Chacon v. State,      constitutional due process rights. The majority first
558 S.W.2d 874, 876 (Tex. Crim. App. 1977) (quoted with         addresses the trial court's order committing Fountain to
approval in In re Zandi, 270 S.W.3d 76, 77 (Tex. 2008)          jail and reaches its conclusion that she be returned to jail.
(per curiam)). The motion to revoke adequately notified         It fails to identify or address any of the five issues raised
Fountain of the essential allegations against her, relating     by Fountain until page eight [**24] of its opinion,
to the timing of her written notice of the move to              swiftly disposes of the first issue, and then lumps her
Galveston. Her letter was dated June 16 but was actually        other four issues together and disposes of those by
mailed on June 18. The motion to revoke's reference to          holding that the statutory and constitutional procedural
the notice being mailed on June 19 did not deprive              safeguards that apply to contempt proceedings do not
Fountain of notice of the essential allegation about her        apply to orders revoking the suspension of commitment.
violation of the requirement of written notice.
                                                                       1 The underlying case is In the interest of S.F., a
    Accordingly, we overrule Fountain's third issue                    child, No. 2010-31997, in the 309th District Court
challenging the adequacy of the motion to revoke to                    of Harris County, Texas, the Honorable Sheri Y.
provide her notice of the allegation that she violated the             Dean, presiding.
agreed order by providing untimely notice of an intended
move. Because at least one of the grounds for revocation             I agree with Fountain that the commitment order is
was supported by the evidence, we need not address              void under established Texas [*11] law and that,
Fountain's [**23] remaining issues challenging the other        therefore, her commitment to jail violates her
two violations found by the trial court.                        constitutional right to due process of law. In its contempt
                                                                order committing Fountain to jail, the trial court failed to
Conclusion                                                      specify the manner in which Fountain had committed two
                                                                of the three violations for which it found her in contempt.
     We conclude that Fountain has not shown that she           For the remaining violation, the trial court found
was illegally restrained by the trial court's order revoking    Fountain in contempt for acts that occurred before the
suspension of commitment and committing her to county           court signed the order giving rise to Fountain's obligation.
jail. We therefore deny Fountain's request for habeas           The commitment order is, therefore, void. I would hold
corpus relief.                                                  that the trial court abused its discretion in revoking its
                                                                order suspending Fountain's commitment. I would grant
    Michael Massengale                                          the petition for writ of habeas corpus, [**25] and I would
                                                                order Fountain discharged.
    Justice
                                                                Background
DISSENT BY: Evelyn V. Keyes
                                                                     On October 18, 2011, the trial court signed an order
DISSENT                                                         in which Tammy Fountain and Katherine Katcher agreed
                                                                to their various rights and duties as conservators of a
                                                                child. Among its numerous provisions, this order
DISSENTING OPINION
                                                                provided that, within thirty days after the signing of the
    I respectfully dissent. I deeply disagree with the          order, each party was to "permit the other conservator to
majority's characterization of the issues in this case, its     obtain health-care information regarding the child" and to
legal conclusions, and its disposition of this habeas           authorize the disclosure of "protected health information
corpus proceeding.                                              to the other conservator" pursuant to federal health care
                                                                law. The order also required each party to notify the
    The trial court found Tammy Fountain in contempt            "other party, the court, and the state case registry of any
for violating a court order in a suit affecting the             change in the party's current residence," phone number,
parent-child relationship, sentenced her to jail, and, in the   employer contact information, and other similar
same order, suspended her commitment.1 The court                information. The party was required to provide
subsequently revoked its earlier suspension order and           notification of any intended change in this residency and
committed Fountain to jail. In five issues, she contends        contact information "on or before the 60th day before the
                                                                                                                   Page 8
                                433 S.W.3d 1, *11; 2012 Tex. App. LEXIS 10801, **25



intended change." If the party did not know of the            school notices. Third, Katcher alleged that Fountain had
intended change in enough time to provide the sixty-day       violated the provision of the May 24, 2012 modification
notice, then the party was required to give notice "on or     order requiring communication within thirty-six hours
before the fifth day after the date that the party knows of   through the Our Family Wizard website [**28] about
the change."                                                  changes to the scheduled possessory period with the
                                                              child. Fountain had allegedly told Katcher that the child
      Several months later, on May 24, [**26] 2012, the       would not be available for Katcher's scheduled lunch visit
trial court entered an order of contempt against Fountain     on June 6, 2012, because the child would be absent from
because the court found that she had violated the earlier     school all week, but she then told Katcher on June 8,
October 18, 2011 order by failing to execute the required     2012, that the child had only been absent on the day
releases to allow Katcher to obtain the child's health-care   scheduled for Katcher's visit. Fourth, Katcher accused
information. Accordingly, the trial court ordered Fountain    Fountain of not paying a $77 court cost.
committed to Harris County Jail for sixty days. But in the
same order, the court suspended Fountain's commitment              On July 31, 2012, after a hearing, the trial court
so long as she complied "with each and every provision        revoked the suspension of Fountain's commitment ("the
of the Agreed Order of October 18, 2011, and of the           commitment order"). Using substantially the same
Modification Order of May 25, 2012." To accompany             wording as found in Katcher's motion to revoke, the court
this order, the trial court prepared a modification order,    found that Fountain had violated its prior orders three
which imposed new duties and obligations on Fountain.         times. First, she failed to "provide the required notice"
The hearing on these orders was held on May 11, 2012,         that she was moving on June 22, 2012, when she mailed
but the orders were not signed and filed until May 24,        notice of the move to Katcher on June 18, 2012. Second,
2012, thirteen days later.                                    Fountain failed to inform the child's current school by
                                                              May 15, 2012, that Katcher had permission to access the
     The May 24, 2012 modification order, among other         child there. Third, Fountain failed to post information to
provisions, required that Fountain notify the child's         Our Family Wizard as required when she had told
school, in writing with notice to the court, that Katcher     Katcher that the child was unavailable for lunch with
could have lunch with the child at school, pick the child     Katcher on June 6, 2012. The district court ordered that
up from school, attend school activities, and receive all     Fountain [**29] be committed in accordance with "the
school notices. Fountain was required to notify the child's   orders attached hereto as Exhibits A, B, and C." A copy
current school by May 15, 2012, four days [**27] after        of the original May 24, 2012 contempt order
the hearing on the new order, but nine days before the        hand-labeled with an "A" followed the revocation order.
trial court signed the new order giving rise to this          On its second page, the attached contempt order provided
obligation. Additionally, the May 24, 2012 modification       that "punishment for the violation set out above is
order obligated both parties to exchange contact              assessed at confinement in the Harris County Jail for a
information and schooling information and, within             period of sixty (60) days."
thirty-six hours of a change, to post any changes to
periods for possession of the child through an Internet           Fountain filed an original petition for writ of habeas
program called "Our Family Wizard."                           corpus seeking relief in this Court, raising five issues. We
                                                              ordered her released on bond pending our determination
     A month later, Katcher moved to revoke the               of her request for relief.
suspension of Fountain's commitment. She accused
Fountain of four violations of the prior orders. First, she   Contempt and Commitment Orders
alleged that [*12] Fountain had failed to provide the
required notice of changes to the child's residence when           "Criminal contempt is punishment for past
Fountain had notified her only on June 19, 2012, that         disobedience to a court order that constitutes an affront to
Fountain and the child would be moving to Galveston           the dignity and authority of the court." In re Houston, 92
County three days later. Second, she alleged that             S.W.3d 870, 876 n.2 (Tex. App.--Houston [14th Dist.]
Fountain had not notified the child's school by May 15,       2002, orig. proceeding). Civil contempt is remedial and
2012, that Katcher could visit the child for lunch, pick      coercive; release may be procured by compliance with
him up from class, attend school activities, and receive      the provisions of the court's order. Id. "Civil contempt
                                                              proceedings are quasi-criminal in nature, and the
                                                                                                                  Page 9
                               433 S.W.3d 1, *12; 2012 Tex. App. LEXIS 10801, **29



contemnor is entitled to procedural due process                                    order for which
throughout the proceedings." Id. at 876. Among the due                             enforcement was
process rights accorded is the right to reasonable notice                          requested;
[**30] of each allegedly contumacious act. Id. Due
process requires "full and complete notification" of the                               (2) the acts or
charges with a reasonable opportunity to meet them by                              omissions that are
defense or explanation. Id. In addition, criminal contempt                         the subject of the
requires proof beyond a reasonable doubt. Id.; see Ex                              order;
parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). In
                                                                                       (3) the manner
order to support a judgment of contempt, the underlying
                                                                                   of the respondent's
decree must set forth the terms of compliance in "clear,
                                                                                   noncompliance; and
specific and unambiguous terms" so that the person
charged with obeying the order will know exactly what                                  (4) the relief
duties and obligations are imposed on her. Chambers,                               granted by the
898 S.W.2d at 260; Houston, 92 S.W.3d at 877. The order                            court.
of contempt may not be susceptible to more than one
[*13] interpretation. Houston, 92 S.W.3d at 877.
                                                                                (b) If the order imposes
     "Due process requires a court, before imprisoning a                   incarceration or a fine for criminal
person for violating an earlier order, to sign a written                   contempt, an enforcement order
judgment or order of contempt and a written commitment                     must contain findings identifying,
order." Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex.                        setting out, or incorporating by
1997) (per curiam) (citing Ex parte Barnett, 600 S.W.2d                    reference the provisions of the
252, 256 (Tex. 1980)). The contempt order must clearly                     order     for      [**32]     which
state in what respect the court's earlier order has been                   enforcement was requested and the
violated. Id.; see also Ex parte Edgerly, 441 S.W.2d 514,                  date of each occasion when the
516 (Tex. 1969) (order [**31] or other means of                            respondent's failure to comply with
notification "must state when, how, and by what means                      the order was found to constitute
the defendant has been guilty of the alleged contempt").                   criminal contempt.
Complementing this due process requirement, the Texas
Family Code mandates that motions for enforcement and                          (c) If the enforcement order
orders confining someone for violating a court's                           imposes incarceration for civil
enforcement order must state "the manner of the                            contempt, the order must state the
respondent's noncompliance." TEX. FAM. CODE ANN. §§                        specific conditions on which the
157.002(a)(2), 157.166(a)(3) (Vernon 2008). Further, an                    respondent may be released from
order imposing incarceration for criminal contempt must                    confinement.
contain findings identifying "the date of each occasion
when the respondent's failure to comply with the order              TEX. FAM. CODE ANN. § 157.166 (Vernon 2008).
was found to constitute criminal contempt."2 Id. §
157.166(b).                                                  Standard of Review of Commitment Order

       2 Family Code section 157.166 provides:                    A commitment order is subject to collateral attack in
                                                             a habeas corpus proceeding. In re Henry, 154 S.W.3d
                 (a) An enforcement order must               594, 596 (Tex. 2005) (per curiam); see TEX. GOV'T CODE
              include:                                       ANN. § 22.221(d) (granting appellate courts power to
                                                             issue writs of habeas corpus). The purpose of the habeas
                          (1) in ordinary                    corpus proceeding is not to determine the guilt or
                      and         concise                    innocence of the relator; rather, the purpose is only to
                      language        the                    determine whether she has been unlawfully restrained. Ex
                      provisions of the                      parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). We
                                                                                                              Page 10
                               433 S.W.3d 1, *13; 2012 Tex. App. LEXIS 10801, **32



presume that the contempt order is valid. In re Turner,      orders, the order does not state the manner of her
177 S.W.3d 284, 288 (Tex. App.--Houston [1st Dist.]          noncompliance. The order states:
2005, orig. proceeding). But we will issue the writ if the
trial court's contempt order is void because it is beyond                 Violation 1. On June 18, 2012,
the court's power or the court did not afford the relator           respondent mailed to movant a notice that
due process of law. [**33] Id. (citing Henry, 154 S.W.3d            as of June 22, 2012, her residence and that
at 596).                                                            of the child was changed to an address in
                                                                    Galveston County. This does not provide
     The relator bears the burden of showing that she is            the required notice.
entitled to relief. Id. In reviewing the record, we do not
weigh the proof; rather, we determine only if the            This violation was accompanied by a copy of the text of
contempt order is void because, for example, the relator     the October 18, 2011 agreed order that required the
has been confined without a proper hearing or with no        parties to inform each other of changes to the child's
evidence of contempt to support her confinement.             current address within sixty days or within [**35] five
Chambers, 898 S.W.2d at 259-60.                              days of learning of a change of address if the party did
                                                             not know of the change in enough time to meet the
Validity of Commitment Order                                 sixty-day requirement. For the other violation, the order
                                                             states:
     Here, the trial court's order committed Fountain to
                                                                        Violation 4. Respondent has interfered
jail as punishment for past violations of the court's May
                                                                     with movant's lunches with the child at
24, 2012 contempt order. Therefore, the commitment
                                                                     school by violation of the order
[*14] order is an order of criminal contempt. See
                                                                     concerning posting information on Our
Houston, 92 S.W.3d at 876 n.2.
                                                                     Family Wizard. Movant had scheduled
     In her petition, Fountain points out numerous                   lunch with the child at school for June 6,
deficiencies and errors in the revocation motion and order           2012; respondent notified movant that the
that committed her to jail for contempt. She argues that             child would not be at school all that week.
two of the contempt violations are improper because the              Respondent changed this schedule, and
commitment order does not state the manner in which she              notified movant -- at lunch time on June 8,
failed to comply with the prior court orders, as required            2012 -- that in fact he had been at school
by due process and the Texas Family Code. See TEX.                   all that week, except for the Wednesday
FAM. CODE ANN. § 157.166(a)(3); Shaklee, 939 S.W.2d at               movant had scheduled. Respondent failed
145 ("The contempt order must clearly state in what                  to post this change timely, presumably to
respect the court's earlier order has been violated.")               prevent movant's being able to reschedule
(citation [**34] omitted). Fountain argues that the                  and have lunch with the child a different
remaining contempt violation is improper because the                 day of the week.
trial court found that she violated a provision in the
court's order that required compliance before the court      This language is quoted verbatim from Katcher's motion
even signed the order imposing that particular obligation.   to revoke. Preceding the violation, the court's May 24,
See Chambers, 898 S.W.2d at 262 (contemnor cannot be         2012 modification order is quoted, which required that
held in contempt of court for actions that predate when      each party promptly post:
court's order is reduced to writing).                                   b. knowledge that a child will not be
                                                                    attending     a    previously   scheduled
     Because I find these arguments dispositive in                  extracurricular activity -- immediately, or
determining that the commitment order is void, I would              as soon as practicable under the
not reach Fountain's other issues.                                  circumstances; but no less [**36] than
                                                                    eight hours; . . .
I. Deficiencies in the Revocation Motion and Order
                                                                         f. any other changes -- within
     While the commitment order states that Fountain                thirty-six hours of the change.
failed to comply with several provisions of prior court
                                                                                                                    Page 11
                                 433 S.W.3d 1, *14; 2012 Tex. App. LEXIS 10801, **36



     These findings do not state the manner of Fountain's      differ.") (emphasis in original) (citing Ex parte
noncompliance. In the first violation, stating that            MacCallum, 807 S.W.2d 729, 730 (Tex. 1991)). This is
Fountain had failed to report that she was moving with         fatal to the commitment order because Fountain lacked
the child to Galveston County, the findings do not             the requisite notification of how to purge her contempt
mention how Fountain failed to notify Katcher. Did the         and how she might avoid violating court orders in the
court find that Fountain [*15] had known when she was          future. See Shaklee, 939 S.W.2d at 145 (invalidating
moving earlier, and so it found that she had failed to         contempt order for failing to specify when contemnor
notify Katcher within the five-day time limit imposed by       violated earlier orders); Ex parte Blasingame, 748 S.W.2d
the October 18, 2011 order? Or did the court find that         444, 446-47 (Tex. 1988) (invalidating contempt order
Fountain had known she was planning to move much               punishing couple for taking action that they reasonably
earlier, and thus she failed to notify Katcher sixty days      interpreted as not violating prior orders).
before the move as the October 18, 2011 order required?
                                                                    The majority states that Fountain "wrongly assumes
     In the other violation, noting that Fountain had failed   that Katcher's motion to revoke and the trial court's
to update the Our Family Wizard program on the week            revocation order must satisfy all of the procedural
Katcher attempted to visit the child at lunch, the findings    safeguards for an enforcement motion under [Family
again fail to state how Fountain had violated the May 24,      Code] chapter 157, as if a separate allegation, finding,
2012 modification order. Did she violate the modification      and sentence for contempt of court were at issue." Slip
order when she reported to Katcher that the child would        Op. at 12. The majority then cites several cases for the
be gone from school all week but then two days later           proposition [**39] that a motion to revoke the
reported he had been in school some days that week? The        suspension of commitment actually "functions as a
earlier order did not require [**37] her never to change       separate enforcement motion," and is therefore subject to
the child's itinerary, only to report changes to the Family    chapter 157's procedural requirements, including section
Wizard program. So, did Fountain fail to update the            157.166's requirement that the contempt order
program at all? Or did she fail to update the program          specifically state the manner of the contemnor's
within the thirty-six hour time limit? For both violations,    noncompliance with a previous court order, when the trial
on what date did Fountain fail to comply with the              court, in a revocation proceeding, makes additional
previous orders? See id. (requiring order to identify date     contempt findings and imposes a different punishment.
of each violation found to constitute contempt). The face      Slip Op. at 12-13. [*16] The majority concludes that
of the commitment order does not answer these                  these cases are distinguishable and that chapter 157's
questions.                                                     procedural requirements are inapplicable, because, here,
                                                               when the trial court revoked the suspension of Fountain's
     The commitment order is insufficient because these        commitment it "did not enter additional findings of
findings of violations of prior orders are unclear. See        contempt," but instead it imposed the "original sentence"
Houston, 92 S.W.3d at 877. The contempt order must             for the "original, admitted episodes of contempt." Slip
spell out exactly what duties and obligations are imposed      Op. at 13.
and what the contemnor can do to purge the contempt. Id.
(citing Ex parte Proctor, 398 S.W.2d 917, 918 (Tex.                The majority justifies its holding by stating,
1966)). Generally, in the contempt context, the order or
motion must be clear and unambiguous, which means the                      In other cases, these [procedural]
order or motion must be capable of only one reasonable                safeguards in fact have been applied under
interpretation. Chambers, 898 S.W.2d at 260. Although                 circumstances when a party has been
the revocation motion and the subsequent commitment                   found in contempt and sentenced, the
order listed dates and described Fountain's actions, these            commitment has been suspended subject
documents are amenable to multiple reasonable                         to compliance with specified conditions,
interpretations as to how or [**38] even whether                      and then in further proceedings to revoke
Fountain had violated the earlier orders. See id. ("A court           the suspension of commitment a trial
order is insufficient to support a judgment of contempt               [**40] court made additional findings of
only if its interpretation requires inferences or                     contempt and imposed a different
conclusions about which reasonable persons might                      punishment. In such circumstances, with
                                                                                                               Page 12
                               433 S.W.3d 1, *16; 2012 Tex. App. LEXIS 10801, **40



       new allegations of contempt and enhanced              order by failing to notify the child's school of Katcher's
       sanctions, the motion to revoke does not              access and by failing to timely update Our Family
       merely invoke a previously rendered                   Wizard. The commitment order thus identified additional
       judgment of contempt, but the new motion              violations of ongoing obligations without specifying how
       instead    functions   as    a   separate             Fountain failed to comply with these obligations and
       enforcement motion for purposes of                    imposed a greater punishment than the original contempt
       chapter 157.                                          order. See Houston, 92 S.W.3d at [*17] 877 (contempt
                                                             order must spell out duties and obligations imposed and
Slip Op. at 12. The majority reasons that because Katcher    what contemnor can do to purge contempt). Thus, the
"did not request and the trial court did not enter           commitment order was not clear and unambiguous, as
additional findings of contempt," but "merely enforced       required for a holding of contempt. See Chambers, 898
the provisions of its own suspended commitment order,"       S.W.2d at 260.
"subchapter D of chapter 157 and its detailed procedures
applicable to an original enforcement hearing" do not             I would conclude that the commitment order is
apply. Slip op. at 13. The majority cites no authority for   functionally equivalent to an original enforcement order,
its holding. Rather, it refuses to follow established        and, therefore, Family Code chapter 157's procedural
authority on allegedly distinguishable factual grounds. I,   safeguards, including section 157.166(a)'s requirement
therefore, take the majority to be making its own law        that the enforcement order state the manner of the
without authority and in conflict with established law.      contemnor's noncompliance, apply equally to this
                                                             proceeding. See Ex parte Durham, 708 S.W.2d 536,
     I [**41] disagree that the procedural safeguards        537-38 (Tex. App.--Dallas 1986, orig. proceeding)
applicable to enforcement motions and orders are not         [**43] ("The purpose of this commitment order is to
applicable here. And I disagree that there are material      enforce the punishment provisions imposed by the
factual distinctions between this case and the prior cases   original order holding relator in contempt. Consequently,
in which the law has been established.                       we hold that this commitment order is an 'enforcement
                                                             order' under [the predecessor to section 157.166]."); see
     The original May 24, 2012 contempt order found          also Houston, 92 S.W.3d at 876 (holding that civil
Fountain in contempt for violating the provision of the      contempt proceedings are quasi-criminal, entitling
October 18, 2011 agreed order requiring her to execute       contemnor to procedural due process "throughout the
all necessary releases to permit Katcher to obtain           proceedings"). I would hold that procedural statutory and
health-care information concerning the child. The court      constitutional due process safeguards were violated in
ordered Fountain confined for sixty days in the Harris       this case. See TEX. FAM. CODE ANN. § 157.166(a)(3);
County Jail and ordered her to pay $5,000 to Katcher in      Shaklee, 939 S.W.2d at 145; Houston, 92 S.W.3d at
attorney's fees, but the court then suspended the            875-77. Therefore, the commitment order is void. See
commitment pursuant to Fountain's compliance with the        Houston, 92 S.W.3d at 875-77.
October 18, 2011 agreed order and the May 24, 2012
modification order. In the commitment order, which           II. Confinement for Violating Court's Command Before
revoked the suspension of Fountain's commitment, the         Court Issued Order Imposing Obligation
court ordered that Fountain be confined for sixty days in
the Harris County Jail, that Fountain pay $5,000 to              Even if the trial court had clearly stated the manner
Katcher, as ordered in the May 24, 2012 contempt order,      of Fountain's noncompliance in the commitment order,
and that Fountain pay, "in addition to the attorney's fees   the order would still be void for finding Fountain in
and costs assessed in the order suspending commitment        contempt of court for violating the court's May 24, 2012
signed on May 24, 2012," an additional $4,379 [**42] in      order on a date predating the date on which the court
attorney's fees and costs to Katcher's attorney.             actually signed that order. See Chambers, 898 S.W.2d at
                                                             262 ("A contemnor cannot be held in constructive
    The court also found that Fountain violated the          contempt of court [**44] for actions taken prior to the
October 18, 2011 agreed order by not "provid[ing] the        time that the court's order is reduced to writing."). It is
required notice" that she and the child were moving to       the written order, signed by the court, that evinces a
Galveston County and the May 24, 2012 modification           party's rights and duties, not oral admonitions at the
                                                                                                                  Page 13
                                433 S.W.3d 1, *17; 2012 Tex. App. LEXIS 10801, **44



hearing. In re Sellers, 982 S.W.2d 85, 87 (Tex.               (holding same). [*18] The commitment of a person to
App.--Houston [1st Dist.] 1998, orig. proceeding) (citing     jail on a void order violates constitutional due process.
Ex parte Price, 741 S.W.2d 366, 367 (Tex. 1987)).             See Gordon, 584 S.W.2d at 688 ("Where the judgment
                                                              ordering confinement is 'void,' the confinement is illegal
    The second violation in the contempt order was for        and the relator is entitled to discharge."); In re Alexander,
Fountain's failure to inform the child's school about         243 S.W.3d 822, 827 (Tex. App.--San Antonio 2007, orig.
Katcher's rights of access to the child by May 15, 2012.      proceeding) ("A writ of habeas corpus will issue when
The underlying order giving rise to this obligation,          the relator has not been afforded due process, or when the
however, was signed on May 24, 2012, nine days after          order requiring confinement is void.").
the date on which Fountain allegedly violated the order.
Under Texas law, this invalidates the commitment order.              3      Because none of the three acts in the
See Chambers, 898 S.W.2d at 262; Sellers, 982 S.W.2d at              commitment order will support a finding of
87; see also Dunn v. Street, 938 S.W.2d 33, 35 n.3 (Tex.             contempt, I would not reach Fountain's other
1997) (per curiam) (voiding contempt judgment because                issues.
contemnor "did not violate a written order of the trial
court").                                                      Conclusion

     The trial court assessed a punishment of sixty days'          I would hold that the trial court abused its discretion
confinement and required the payment of attorney's fees       in revoking its order suspending Fountain's commitment
for all of the contumacious acts it found. This means that    to jail and that the commitment order is void.
even if only one of the violation findings was invalid, the   Accordingly, I would grant the petition for writ of habeas
entire [**45] order would be void.3 Ex parte Davila, 718      corpus, and I would order Fountain [**46] released from
S.W.2d 281, 282 (Tex. 1986) (per curiam) ("If one             her bond and discharged.
punishment is assessed for multiple acts of contempt, and
                                                                  Evelyn V. Keyes
one of those acts is not punishable by contempt, the entire
judgment is void"); Ex parte Sealy, 870 S.W.2d 663, 667           Justice
(Tex. App.--Houston [1st Dist.] 1994, orig. proceeding)
                                                                                                               Page 1




                           IN THE INTEREST OF A.C.F.H., and D.A.B.H., Children

                                              No. 04-11-00322-CV

                  COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

                                   373 S.W.3d 148; 2012 Tex. App. LEXIS 1769


                                            March 7, 2012, Delivered
                                             March 7, 2012, Filed

SUBSEQUENT HISTORY:            Released for Publication   Tunc Order in Suit Affecting Parent-Child Relationship.
July 19, 2012.                                            The order was entered after the parties entered into a
                                                          Mediated Settlement Agreement. The appellant,
PRIOR HISTORY: [**1]                                      "Margaret," is the biological mother of the two children
  From the 150th Judicial District Court, Bexar County,   who are the subject of the order. Appellee, "Michael," is
Texas. Trial Court No. 2009-CI-06175. Honorable           the step-father of both children. In the order, the trial
Barbara Hanson Nellermoe, Judge Presiding.                court appointed Michael and Margaret as joint managing
In the Interest of A.C.F.H., 2011 Tex. App. LEXIS 5504    conservators of the children. In a single issue on appeal,
(Tex. App. San Antonio, July 20, 2011)                    Margaret asserts the trial court lacked subject-matter
                                                          jurisdiction to enter [*150] the order because Michael
DISPOSITION: AFFIRMED.                                    lacked standing to file an original suit [**2] affecting the
                                                          parent-child relationship. We disagree and affirm.

COUNSEL: For APPELLANT: Cristina T. De Leon,              ANALYSIS
Law Offices of Cristina T. De Leon, San Antonio, TX.
                                                                Although Margaret did not challenge Michael's
For APPELLEE: Gilbert Vara, Jr., The Law Office of        standing before the trial court, standing is implicit in the
Gilbert Vara, Jr., San Antonio, TX; Ryan C. Moe, The      concept of subject-matter jurisdiction and, therefore, is a
Law Office of Ryan C. Moe, P.L.L.C., San Antonio, TX.     threshold issue that we may address for the first time on
                                                          appeal. In re Vogel, 261 S.W.3d 917, 920 (Tex.
JUDGES: Opinion by: Sandee Bryan Marion, Justice.         App.--Houston [14th Dist.] 2008, orig. proceeding); In re
Sitting: Catherine Stone, Chief Justice, Sandee Bryan     SSJ-J, 153 S.W.3d 132, 134 (Tex. App.--San Antonio
Marion, Justice, Steven C. Hilbig, Justice.               2004, no pet.). In a suit affecting the parent-child
                                                          relationship, standing is governed by the Texas Family
OPINION BY: Sandee Bryan Marion                           Code, and the party seeking relief must allege and
                                                          establish standing within the parameters of the language
OPINION                                                   used in the statute. In re H.G., 267 S.W.3d 120, 124 (Tex.
                                                          App.--San Antonio 2008, pet. denied). Standing cannot be
    [*149] AFFIRMED                                       conferred by consent or waiver and may be raised for the
                                                          first time on appeal. In re A.M.S., 277 S.W.3d 92, 95 (Tex.
    This is an appeal from an April 7, 2011 Nunc Pro
                                                          App.--Texarkana 2009, no pet.).
                                                                                                                        Page 2
                                373 S.W.3d 148, *150; 2012 Tex. App. LEXIS 1769, **2



     The Texas Family Code section applicable here              still on-going. As discussed further below, [*151] our
provides that "[a]n original suit may be filed at any time      review of the record indicates evidence exists to support
by . . . a person, other than a foster parent, who has had      this contention.
actual care, control, and possession of the child for at
least six months ending not more than 90 days preceding              Pursuant [**5] to an October 14, 2004 "Child Safety
[**3] the date of the filing of the petition . . . ." TEX.      Evaluation and Plan," Margaret agreed "to voluntarily
FAM. CODE ANN. § 102.003(a)(9) (West 2008). The                 place the children with the father [Michael]." The plan
purpose of section 102.003(a)(9) is to create standing for      stated November 14, 2004 as its end date. On October 19,
those who have developed and maintained a relationship          2004, Michael filed a petition in suit affecting the
with a child over time. T.W.E. v. K.M.E., 828 S.W.2d 806,       parent-child relationship in trial cause number
808 (Tex. App.--San Antonio 1992, no writ) (examining           2004-CI-15869 in Bexar County. On November 2, 2004,
former Family Code section 11.03(a)(8)).                        the trial court entered "Temporary Orders in Suit
                                                                Affecting the Parent-Child Relationship" ("the 2004
    Margaret asserts Michael failed to plead or prove           temporary orders"). Pursuant to these orders, Michael
with any specificity the statutory time period, and she         was appointed temporary sole managing conservator and
contends Michael failed to plead that he had "actual            Margaret was appointed temporary possessory
control" over the two children. Margaret also asserts           conservator of both children. Michael had the following
Michael failed to show he had the legal or constructive         "rights and duties" under the orders:
authority to guide or manage the children.
                                                                          1. the right to have physical possession
     We review de novo a challenge to a party's standing.              and to direct the moral and religious
Tex. DOT v. City of Sunset Valley, 146 S.W.3d 637, 646                 training of the children;
(Tex. 2004). Ordinarily, a petitioner must allege facts that               2. the duty of care, control, protection,
affirmatively demonstrate the court's jurisdiction to hear             and reasonable discipline of the children;
the cause. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852                3. the duty to provide the children with
S.W.2d 440, 446 (Tex. 1993). When, as here, standing is                clothing, food, shelter, education, and
challenged for the first time on appeal, there is no                   medical, psychological, and dental care;
opportunity to cure a pleading defect. Id. "Therefore,                    4. the right to consent for the children to
when a Texas appellate court reviews the standing of a                 medical, psychiatric, dental, and surgical
party [for the first [**4] time on appeal], it must construe           treatment and to have access to the
the petition in favor of the party, and if necessary, review           children's medical records;
the entire record to determine if any evidence supports                    5. the right to receive and give receipt
standing." Id. Accordingly, we construe Michael's                      [**6] for payments for the support of the
petition in his favor and we look to the entire record to              children and to hold or disburse funds for
determine whether any evidence supports his standing to                the benefit of the children;
bring his petition.                                                        6. except as otherwise provided by the
                                                                       Texas Family Code, the right to the
     Section 102.003 requires that the petitioner have had             services and earnings of the children;
actual care, control, and possession of the child "for at                7. the right to consent to marriage and to
least six months ending not more than 90 days preceding                enlistment in the armed forces of the
the date of the filing of the petition." TEX. FAM. CODE §              United States;
102.003(a)(9). In his original petition and his amended                    8. the right to represent the children in
petition, Michael alleged he had standing "to bring this               legal action and to make other decisions of
suit in that the children have resided with him and have               substantial legal significance concerning
been in his care, custody and control for more than six                the children;
months." On appeal, Michael explains he did not allege                       9. except when a guardian of the
"for at least six months ending not more than 90 days                  children's estates or a guardian or attorney
preceding the date of the filing of the petition" because, at          ad litem has been appointed for the
the time he filed the petition, his actual care, control, and          children, the right to act as an agent of the
possession of the children had not ended and was, in fact,             children in relation to the children's estates
                                                                                                                    Page 3
                                373 S.W.3d 148, *151; 2012 Tex. App. LEXIS 1769, **6



       if the children's action is required by a                established the contrary because the mother had refused
       state, the United States, or a foreign                   to give the petitioner, the non-parent who lived with the
       government; and                                          mother and her child, legal rights concerning the child
           10. the right to designate the primary               when he expressed an interest in adopting the child. Id. at
       residence of the children and to make                    792. The court concluded the petitioner lacked standing
       decisions     regarding    the   children's              because, until he obtained the temporary orders at issue in
       education.                                               the appeal, he had no legal right of control over the child
                                                                and no authority to make decisions on behalf of the child.
Margaret, on the other hand, was given limited visitation       Id. at 793. The Fort Worth Court of Appeals has held the
with the children and limited authority over the children       petitioners, the paternal grandparents, lacked standing
during her periods of possession.                               because the respondent-mother [**9] did not voluntarily
                                                                relinquish permanent care, control, and possession of
     The temporary orders were to continue in effect until      child for the six months preceding the petitioners filing
the signing of a final order or further order of the court.     suit because the respondent-mother controlled where the
The record does not contain any final orders; however,          child would stay and for how long and the petitioners did
the [**7] docket sheet indicates the 2004 case was              not have such control; and there was no evidence the
dismissed for want of prosecution on January 30, 2007.          respondent-mother intended her child to stay with the
Less than two months later, the trial court considered          petitioners for any extended periods of time. See In re
Michael's motion to reinstate the case on the docket and        Kelso, 266 S.W.3d 586, 590-91 (Tex. App.--Fort Worth
signed an order of reinstatement on March 6, 2007, which        2008, no pet.). On the other hand, the Austin Court of
specifically stated the case was reinstated "to the same        Appeals did not agree that "actual control" hinged on
effect as if it had never been dismissed." The docket           whether a petitioner possesses legal authority. Jasek v.
indicates the case was again dismissed for want of              Tex. Dep't of Family and Protective Servs., 348 S.W.3d
prosecution on April 8, 2009. One day later, Michael            523, 532 (Tex. App.--Austin 2011, no pet.). In that case,
filed the underlying original suit affecting the                DFPS sought to terminate the parental rights of both
parent-child relationship that is the subject of this appeal.   biological parents and had placed the children with the
Nothing in the record indicates Michael's duties under the      Jaseks with the intention that the children stay with the
2004 temporary orders changed between the date the              Jaseks permanently. The children were later removed
orders were entered in 2004 and the date Michael filed          from their home after one of the Jaseks tested positive for
his new petition on April 9, 2009. In fact, various medical     marijuana. The Jaseks then intervened in the suit
and school records indicate Michael sought medical              affecting the parent-child relationship and DFPS moved
attention as needed for the children and was involved           to strike their intervention on the grounds they lacked
with their schooling. The record also contains a "Consent       standing. The trial court [**10] concluded the Jaseks
to [*152] Name Change" form signed by each child,               lacked standing.
dated November 2, 2009, in which each child identifies
Michael as "the man who raised me and who I consider                 On appeal, DFPS argued the Jaseks could not
my father . . . ."                                              establish that they had "actual control" over the children
                                                                because, at all relevant times, DFPS had sole legal
     We are aware there is some disagreement among the          control over the children. Id. at 531. DFPS did not
courts [**8] of appeals over what constitutes "actual           dispute the Jaseks had "actual care" and "actual
control." The Beaumont Court of Appeals has held that           possession" of the children for the requisite time period.
"'control' must mean something more than the control            Instead, DFPS argued the Jaseks could not have had
implicit in having care and possession of the child if the      "actual control" during that time because that required
word is to be given effect and treated as more than             having the "authority to make legal decisions, decisions
surplusage. The word must be understood in the context          of legal significance and including the responsibilities of
of the rights, duties, and responsibilities of a parent." In    a legal parent." DFPS insisted that only DFPS had "actual
re K.C.C., 292 S.W.3d 788, 792-93 (Tex. App.--Beaumont          control" over the children because it was vested with the
2009, no pet.). The court found it significant that there       ultimate legal authority to make decisions for the
was no evidence the mother ever agreed to relinquish            children, including the discretion to remove them from
legal rights concerning the child, and in fact, the evidence    the Jaseks' home at any time. Id. at 532. The court of
                                                                                                                      Page 4
                                373 S.W.3d 148, *152; 2012 Tex. App. LEXIS 1769, **10



appeals disagreed that "actual control" under section            that child's parent for a period in excess of six months.").
102.003(a)(9) hinged on whether a caregiver possesses
this sort of legal authority.                                         In her [**12] brief on appeal, Margaret alleges
                                                                 Michael failed to show he had actual control, "meaning
     The Austin court noted that the term "actual"               the actual power or authority to guide or manage" the
indicates "something that exists in [*153] fact, as              children. During oral arguments before this court,
opposed to something that is a function of legal duties or       Margaret invited this court to follow the cases that
imputation" and "control" "means the 'power or authority         require a showing that the parent has abdicated actual
to [**11] guide or manage: directing or restraining              control of the children in order for the non-parent to show
domination.'" Id. at 533. The court concluded "'actual . . .     standing. We decline the invitation for two reasons. First,
control . . . of the child,' as used in section 102.003(a)(9),   as this court has previously held, the purpose of section
means the actual power or authority to guide or manage           102.003(a)(9) is to create standing for those who have
or the actual directing or restricting of the child, as          developed and maintained a relationship with a child over
opposed to legal or constructive power or authority to           time. See T.W.E, 828 S.W.2d at 808. Second, under any
guide or manage the child." Id. The court concluded these        of the standards set forth by our sister courts, we
words reflected "the Legislature's intent to create              conclude Michael has standing because the record
standing for those who have, over time, developed and            indicates that as of the date he filed the underlying
maintained a relationship with a child entailing the actual      petition, he had not only the actual power and authority to
exercise of guidance, governance and direction similar to        guide or manage the children, he also had the legal power
that typically exercised by parents with their children."        and authority to do so. Therefore, the record contains
Id.; see also In re K.K.C., 292 S.W.3d at 795 (McKeithen,        evidence that supports his standing to bring his petition.
C.J., dissenting) ("Nothing in the plain language of the
statute necessitates the 'relinquishment' or 'abdication' by     CONCLUSION
the biological parent of her parental rights, duties or
                                                                     For the reasons stated above, we affirm the trial
responsibilities. There is no exclusivity requirement in
                                                                 court's order.
the statute's plain language. . . . There is, however, a
rational basis for conferring standing on a person who               Sandee Bryan Marion, Justice
shares actual care, control, and possession of a child with
                                                                                                                 Page 1




                 RICHARD W. LEE, ET AL., Petitioner, v. THE CITY OF HOUSTON, ET AL.,
                                             Respondent

                                                      No. C-8285

                                          SUPREME COURT OF TEXAS

                              807 S.W.2d 290; 1991 Tex. LEXIS 23; 34 Tex. Sup. J. 408


                                              March 6, 1991, Delivered

SUBSEQUENT HISTORY:                  [**1] Dissenting        relief, and rendered a take-nothing judgment against the
Opinion Dated April 24, 1991.                                police officers. 762 S.W.2d at 180. In so ruling, the court
Rehearing overruled by, 04/24/1991                           of appeals held that the Act applies only to positions
Writ of mandamus granted Lee v. Downey, 842 S.W.2d           requiring the performance of law enforcement duties. Id.
646, 1992 Tex. LEXIS 110 (Tex., 1992)                        at 186-87. Because we disagree with that construction of
                                                             the Act, we reverse the judgment of the court of appeals
PRIOR HISTORY:             From Harris County; First         and remand the cause to the trial court for entry of
District.                                                    judgment in accordance with this opinion.
City of Houston v. Lee, 762 S.W.2d 180, 1988 Tex. App.
LEXIS 2537 (Tex. App. Houston 1st Dist., 1988)                      1 Act of June 2, 1947, 50th Leg., R.S., ch. 325,
                                                                    1947 Tex. Gen. Laws 550, as amended, repealed
                                                                    by Act of May 1, 1987, ch. 149, § 49(1), 1987
JUDGES: Oscar H. Mauzy, Justice. Dissenting opinion                 Tex. Gen. Laws 1306. The actions giving rise to
by Justice Raul A. Gonzalez joined by Justice Cornyn.               this suit took place prior to codification, and are
                                                                    therefore governed by article 1269m. However,
OPINION BY: MAUZY                                                   because codification entails no substantive
                                                                    change, see Tex. Loc. Gov't Ann. § 1.001, this
OPINION                                                             opinion refers to the codified version of the
                                                                    statute, except where otherwise noted.

[*291] OPINION                                                     [**2] The actions challenged in this suit reflect the
                                                             City of Houston's ongoing effort to "civilianize" the
    This cause requires us to examine the scope of the       Houston Police Department (HPD). The court of appeals
Fire Fighters' and Police Officers' Civil Service Act,       opinion sets out the pertinent aspects of that effort. In
formerly Tex. Rev. Civ. Stat. Ann. art. 1269m, 1 now         short, the City placed unclassified civilians in managerial
codified at sections 143.001-143.134 of the Texas Local      positions traditionally held by classified police officers.
Government Code ("the Act"). Petitioners, officers in the    Petitioners allege that those placements contravened the
Houston Police Department, assert that the Act entitles      Act.
them to promotion with back pay, in addition to
declaratory and injunctive relief. The court of appeals          The purpose of the Act, as stated in section 143.001,
reversed the trial court's judgment granting the requested   is "to secure efficient fire and police departments
                                                                                                                    Page 2
                                   807 S.W.2d 290, *291; 1991 Tex. LEXIS 23, **2;
                                                34 Tex. Sup. J. 408


composed of capable personnel who are free from                    In the years since 1957, a number of courts have
political influence and who have permanent employment         addressed questions regarding the coverage of the Act.
tenure as public servants." To that end, the Act requires     Almost all of those cases, however, have involved
the city council, or other legislative body, to provide by    individuals employed prior to 1957, who automatically
ordinance for the classification of all fire fighters and     maintained their civil service status after the amendment.
police officers; that is, to place all such officers within   See, e.g., City of San Antonio v. Carr, 161 Tex. 155, 338
the protection of a civil service system. Section 143.021.    S.W.2d 122, 124 (Tex. 1960); Clack v. City of San
The proper boundaries of that system, however, are            Antonio, 452 S.W.2d 502, 503 (Tex. Civ. App. -- San
unclear.                                                      Antonio 1970, writ ref'd n.r.e.).

    In its original form, the Act defined "policeman" as           One prior court has probed the impact of the 1957
                                                              amendment. In City of Wichita Falls v. Harris, 532
     any member of a Police Department who draws              S.W.2d 653 (Tex. Civ. App. -- Fort Worth 1975, writ ref'd
compensation for his services as a member of said             n.r.e.), the City had hired a "fire training specialist" [**5]
department.Tex. Rev. Civ. Stat. Ann. art. 1269m, § 2, Act     without following the procedures set out in the Act for
of June 2, 1947, 50th [**3] Leg., R.S., ch. 325, 1947         the hiring of classified officers. Eight members of the fire
Tex. Gen. Laws 550, 551. Applying that definition,            department then brought suit to void the city's
courts uniformly rejected attempts to remove any police       appointment. The trial court found that the new position
department positions from civil service protection; all       fell within the coverage of the Act. In reviewing that
employees were protected by the Act. See City of San          finding, the court of civil appeals noted the fundamental
Antonio v. Handley, 308 S.W.2d 608, 610 (Tex. Civ. App.       circularity of the Act's terms:
-- San Antonio 1957, writ ref'd), and cases cited therein.
                                                                   If the Act is construed strictly it would mean that the
    With a 1957 amendment, however, the Act's                 City could employ new firemen who would not be under
definition of "policeman" became less clear,                  Civil Service by simply not giving them an examination.
encompassing                                                  The City acknowledges that this is obviously not the
                                                              intent of the legislature.Id. at 657. To avoid defeating the
    any member of the Police Department appointed to          intent of the legislature, the court construed the Act as a
such position in substantial [*292] compliance with the       whole. Looking to the job description for the new
provisions of Sections 9, 10, and 11 of this Act . . .        position, the court observed that "a person holding the
                                                              position must have knowledge of the principles and
     Act of June 6, 1957, 55th Leg., R.S., ch. 391, § 1,
                                                              practices of fire prevention and suppression." Id. at 656.
1957 Tex. Gen. Laws 1171. 2 Sections 9, 10, and 11 of
                                                              On that basis, the court affirmed the trial court's finding
article 1269m required competitive examinations for
                                                              that the position was within the ambit of the Act.
appointment to positions in the police department. The
codified version of that language, located at section              The court of appeals in the present case took a
143.003(5) of the Local Government Code, provides             different approach. While noting that the Act should be
simply that a "police officer" is one who was appointed in    viewed as a whole, the court placed special [**6]
substantial compliance with chapter 143 of the code.          reliance on the predecessor to section 143.023(e), which
Thus, since 1957, the Act's most important definition has     now provides:
been circular. Section 143.003(5) states, in essence, that
the Act covers [**4] whomever the Act covers.                     An applicant may not be certified as eligible for a
                                                              beginning position with a police department unless the
       2 In 1985, the legislature changed the definition      applicant meets all legal requirements necessary to
       again by adding a reference to officers in             become eligible for future licensing by the Commission
       specialized police forces, and by adding the words     on Law Enforcement Officer Standards and Education.
       "or other peace officer" after the word
       "Department." Act of June 16, 1985, 69th Leg.,              The only positions that require law enforcement
       R.S., ch. 958, § 21, 1985 Tex. Gen. Laws 3227,         training, the court reasoned, are those that involve
       3241 (discussed infra at 5-6).                         traditional law enforcement duties. Thus, the court
                                                              concluded that the Act encompasses only those
                                                                                                                    Page 3
                                    807 S.W.2d 290, *292; 1991 Tex. LEXIS 23, **6;
                                                 34 Tex. Sup. J. 408


employees who actually do "police work;" that is, those        police officers can hold managerial positions, the
who enforce the law, make arrests, and conduct criminal        argument goes, then the HPD will be unable to utilize the
investigations. We disagree.                                   talents of civilians. The premise of that argument is
                                                               invalid. Section 143.023(e) does not require that all
     Nothing in either the language or the history of          applicants be licensed police officers. Rather, that section
section 143.023(e) evinces a legislative intent to limit the   requires, by its terms, that applicants meet the
coverage of the Act. The legislature adopted that              requirements necessary to become eligible for future
provision in 1985, almost forty years after it originally      licensure. Any civilian meeting those requirements may
passed the Act. Tex. H.B. 1657, [*293] Act of May 26,          apply for a beginning position; and once hired, that
1985, ch. 910, § 4, 69th Leg., R.S., 1985 Tex. Gen. Laws       individual may become eligible for promotional
3046, 3047. If, in passing H.B. 1657, the legislature had      positions. Under the Act, promotions are determined by
intended to restrict the coverage of the Act, it would have    performance on promotional examinations, for which any
amended the statutory provision which purports to              classified employee -- licensed or unlicensed -- may sit,
establish [**7] the Act's scope -- namely, section 2 of        as long as the employee meets certain basic requirements.
article 1269m, now codified at section 143.003(5) of the       Section 143.028.
Local Government Code. Notably, on the day after it took
final action on H.B. 1657, the 69th Legislature                     Certainly, there might be instances in which a police
demonstrated that it knew full well how to alter the           department would prefer to hire someone from outside
coverage of the Act. With its adoption of S.B. 540, the        the department, rather than to promote from within. We
legislature extended the coverage of the Act to include        must presume, however, that the legislature [**9] took
specialized police forces, such as park police, airport        that possibility into account when it created the Act. Our
police, and city marshals, in any city having a population     function is not to question the wisdom of the statute;
of 1,500,000 or more. Tex. S.B. 540, Act of May 27,            rather, we must apply it as written. Jones v. Del
1985, ch. 958, § 22, 69th Leg., R.S., 1985 Tex. Gen.           Andersen and Associates, 539 S.W.2d 348, 351 (Tex.
Laws 3227, 3241. 3 To do so, the legislature amended           1976). Moreover, the legislature might reasonably have
section 2's definition of "policeman" by adding a              concluded that the goal of efficiency would be well
reference to section 14B, a new section governing such         served by requiring merit-based promotions within the
police forces, now found at section 143.103 of the Local       department, rather than giving the department a free hand
Government Code. H.B. 1657, in contrast, did not               to hire from without. See Note, Absolute Preferences in
mention section 2.                                             Municipal Civil Service Appointments: The Unresolved
                                                               Conflict With Municipal Discretion, 64 Mich. L. Rev.
       3 In 1983, the legislature apparently tried to          891, 896-97 (1966).
       effect that change by amending section 14A of
       article 1269m. Act of June 19, 1983, 68th Leg.,              Other provisions, in addition to section 143.023(e),
       R.S., ch. 517, 1983 Tex. Gen. Laws 3006,                indicate that the legislature intended the Act to have
       repealed by Act of June 16, 1985, 69th Leg., R.S.,      broader application than the court of appeals suggests.
       ch. 958, § 21, 1985 Tex. Gen. Laws 3227,                Section 143.025(b) requires all applicants to take tests
       3240-41. The City of Houston, however, refused          based on "police work and work in the police
       to interpret that amendment in a manner which           department," suggesting that the Act's reach extends
       would extend all provisions of article 1269m to         beyond the performance of traditional "police work."
       the specialized police forces. Senate Committee         Section 143.102 gives the Chief of Police of a large
       on Intergovernmental Relations, Bill Analysis,          municipality authority to appoint persons to certain
       S.B. 540, 69th Leg., R.S. (1985). Consequently,         command staff positions, 4 suggesting that the Act would
       the legislature acted in 1985 to achieve its aim        otherwise [*294] require [**10] competitive testing for
       directly. Id.                                           those positions. Section 143.109, which similarly applies
                                                               only to a large municipality, prohibits crossover
     [**8] The City argues that a broad construction of        promotions of classified employees in specialized
the Act would bring section 143.023(e) into conflict with      technical areas, suggesting that the legislature
the Act's objective, stated in section 143.001, of             contemplated the inclusion of at least some members of
promoting efficiency in the police force. If only licensed     the technical classes within the civil service system.
                                                                                                                  Page 4
                                  807 S.W.2d 290, *294; 1991 Tex. LEXIS 23, **10;
                                                34 Tex. Sup. J. 408


       4     Subchapter G of the Act, which contains                  needs of the department, as long as the tests meet
       section 143.102, generally applies only to a                   the basic requisites of those sections. See
       municipality with a population of 1.5 million or               generally Note, Civil Service Commission -- Civil
       more. Section 143.101(a).                                      Service Commissions are Generally Accorded
                                                                      Wide Discretion by the Courts in the Preparation
            Section 143.102 authorizes the Chief of                   and Administration of Examinations to Meet the
       Police to "appoint a person to a command staff                 Public Demand for the Employment of
       position at the rank of assistant chief." Section              Individuals in the Public Service, 30 Drake L.
       143.102(a). This suit involves the placement of                Rev. 650-52 (1980-81).
       civilians in positions which are allegedly the
       equivalent of deputy chief positions; that is,                      Similarly, the commission is authorized to
       positions which are immediately below the rank                 specify age and physical requirements for
       of assistant chief. Thus, section 143.102 is not               beginning and promotional positions, and to
       directly applicable to this suit. We note, however,            require appropriate physical examinations.
       that legislative efforts to authorize the Chief of             Section 143.022. For any given position, the
       Police to appoint deputy chiefs have consistently              requirements must be the same for all applicants;
       failed. See Tex. H.B. 1590, H.B 1697, H.B. 2218,               but nothing in the Act requires the commission to
       and S.B. 1187, 71st Leg., R.S. (1989).                         apply the same requirements to every
                                                                      classification or position. Thus, the dissent is
      [**11] In the absence of a clear definition of                  flatly wrong in suggesting that a computer genius
"police officer," courts should determine the scope of the            who is thirty-seven or who has a physical
Act by viewing the statute as a whole. The Act applies to             disability is forever barred from supervising the
any position requiring a competitive examination. §§                  police computer department. Assuming, without
143.003, 143.021(c). 5 Such an examination tests an                   deciding, that such a position must be classified,
applicant's "knowledge of and qualifications for . . .                the commission has as much latitude in crafting
police work and work in the police department," as well               requirements for that position as it does for any
as the applicant's "general education and mental ability."            other.
Section 143.025(b). 6 We conclude, then, that the Act        [**12]
applies to any position requiring proficiency in all of               7 "Police work," in our view, refers to traditional
those areas. If a particular position requires substantial            law enforcement functions. Any broader
knowledge of "police work and work in the police                      interpretation would render the phrase redundant.
department," then it must be classified. Conversely, if a             The second half of the phrase, i.e, "and work in
position requires no knowledge of such work, then the                 the police department," encompasses other
position need not be classified. 7 Where the duties and               activities within the department.
functions entailed by a particular job are undisputed, the
determination of whether that job requires knowledge of                    Of course, virtually every position may
police work and work in the police department is a                    require some knowledge of "work in the police
question of law for the court.                                        department." However, to apply the Act on that
                                                                      basis alone would be to ignore the conjunctive
       5 In article 1269m, see sections 2, 8(b), 9(a), and            term "and." The Act applies only to those
       12(c).                                                         positions requiring knowledge of "police work
       6 The local Fire Fighters' and Police Officers'                and work in the police department." Some
       Civil Service Commission must provide for                      positions requiring knowledge of work in the
       "open, competitive, and free" entrance                         police department may not require knowledge of
       examinations, § 143.025, and must also provide                 police work; consequently, those positions need
       for fair promotional examinations, § 143.032.                  not be classified.
       Neither section requires that the commission
       provide the same test for every classification or         We recognize that this holding may not resolve all
       position. Rather, the commission may design           doubts as to whether the Act covers particular positions.
       whatever tests are necessary to meet the particular   However, the legislature's failure to draw a bright line
                                                                                                                     Page 5
                                    807 S.W.2d 290, *294; 1991 Tex. LEXIS 23, **12;
                                                  34 Tex. Sup. J. 408


does not, in itself, authorize a court to draw one of its        does provide special procedures for appointment to
own. It is the obligation of the legislature, rather than the    positions [**15] at the very top of the ladder. §§
courts, to develop a workable definition of "police              143.013, 143.014, 143.102. At subordinate levels,
officer." See Tex. Const. [**13] art. II, § 1. 8 A [*295]        however, the civil service ladder must remain intact. 9 All
court may not judicially amend a statute and add words           positions in the civil service hierarchy -- that is, all
that are not implicitly contained in the language of the         classified positions, and all positions entailing the
statute. Jones v. Liberty Mutual Ins. Co., 745 S.W.2d 901        supervision of classified employees -- must be classified,
(Tex. 1988).                                                     and all appointments to those positions must be made in
                                                                 accordance with the Act. See International Ass'n of
        8 We note that the Act, as a whole, has not              Firefighters v. Townsend, 622 S.W.2d 562, 563 (Tex.
        suffered from legislative inattention. Since the         1981).
        adoption of the new definition of "policeman," the
        legislature has amended the statute at least                    9 In a city with a population of 1.5 million or
        thirty-two times. In none of those instances,                   more, such as Houston, the Act provides for
        however, did the legislature address the                        distinct ladders within specialized police divisions
        opaqueness of the statute's most basic provision.               and classes. Sec. 143.103. Officers in such
        Until the legislature clearly defines the scope of              divisions are still accorded the benefit of all other
        the Fire Fighters' and Police Officers' Civil                   provisions in the Act, "including the provisions
        Service System, courts will be left to apply the                relating to eligibility lists, examinations,
        vague standard we discern today to increasingly                 promotions,      appointments,"      etc.    Section
        complex bureaucracies.                                          143.103(c).

     Moreover, the standard we discern today should, in               Evidence in the present case indicates that the City
most cases, produce an unequivocal answer as to whether          "declassified" certain top-level job assignments within
a particular position must be classified. The average            the HPD. The trial court found that four [**16]
patrol officer's duties certainly require knowledge of           newly-hired, unclassified employees were performing the
police work and work in the police department; [**14]            same duties, and exercising the same supervisory
to that extent, the average patrol officer's position must       responsibilities, as deputy chiefs of police, while five
be classified. On the other hand, the duties of an ordinary      others assumed the duties and responsibilities of
clerk-typist in the police department do not require             lieutenants. The unclassified employees thus occupied
knowledge of police work and work in the police                  positions which are, and long have been, integral parts of
department; so to that extent, the clerk-typist's position       the HPD's civil service hierarchy. Accordingly, the
need not be classified.                                          placement of unclassified employees in those positions
                                                                 contravened the Act.
     When the duties of a particular position fall outside
the scope of the Act, the City may abolish the position,              We do not hold that every high-level position in a
provided it does so in good faith. Moncrief v. Tate, 593         police department must be held by a classified employee.
S.W.2d 312 (Tex. 1980). As long as the position remains          If a particular job assignment requires no knowledge of
within the civil service system, however, any person             police work and work in the police department, and
holding the position is entitled to the full protection of the   entails no supervision of classified officers, the position
Act.                                                             need not be classified. Thus, the Act does not necessarily
                                                                 prohibit the vertical declassification of certain
     One critical aspect of civil service protection is the      subdivisions within the department. Nor does the Act
right to seek promotion by way of competitive                    prohibit the holder of a police license from assuming a
examinations. Section 143.031. For every classified              job assignment outside of the civil service system, when
employee, the civil service system offers a career ladder,       the assignment requires no knowledge of police work and
whereby the officer may work his or her way upward               work in the police department, as defined above.
through the ranks. The various ranks, like rungs on a
ladder, must comport with the system as a whole; that is,            The Act does, however, prohibit horizontal
they must be filled by competitive examination, open to          declassification across upper levels of bureaucratic
all who meet the basic statutory requirements. The Act           [**17] subdivisions, when classified employees hold
                                                                                                                   Page 6
                                    807 S.W.2d 290, *295; 1991 Tex. LEXIS 23, **;
                                                 34 Tex. Sup. J. 408


subordinate positions within those subdivisions. The          believe that there has been a showing that any "classified
removal of such upper-level positions from the civil          position" has been lost. No one lost their job as a result of
service system would expose critical job assignments to       the ordinances, and the number of positions within a
political influence, and would obstruct the upward            classification was the [**19] same before and after the
progress of classified [*296] employees. Such                 passage of the ordinances. For these reasons, I dissent.
declassification would thus thwart the Act's aim of
securing efficient police departments. Section 143.001.              1 Tex. Loc. Gov't Code Ann. §§ 143.001-.134
                                                                     (Vernon 1988 & Supp. 1991). References to the
     We hold that the challenged placements contravened              "Act" or the "code" are to the Texas Local
the Act's requirement that all covered positions be filled           Government Code unless otherwise noted.
in accordance with the statutory terms. Section
143.021(c). 10 We therefore reverse the judgment of the                  The case was tried prior to recodification,
court of appeals and remand the cause to the trial court             under Tex. Rev. Civ. Stat. art. 1269m, repealed by
for entry of judgment in accordance with this opinion.               Act of 1987, ch. 149, § 49(1), 1987 Tex. Gen.
                                                                     Laws 1306. Corresponding references to the prior
       10 In article 1269m, see section 8(b).                        codification are noted in the footnotes.

           We do not reach the Petitioners' contention             The Act provides for the classification of all
       that the Respondents' actions amounted to              policemen within the department, and for the promotion
       abolition of existing classified positions. See City   of policemen according to their position on eligibility
       of San Antonio v. Wallace, 161 Tex. 41, 338            lists compiled from the results of competitive
       S.W.2d 153 (Tex. 1960).                                examinations. The Act provides that, except for a few
                                                              narrow exceptions, "an existing position or classification
DISSENT BY: GONZALEZ                                          or a position or classification created in the future either
                                                              by name or by increase in salary may be filled only from
DISSENT                                                       an eligibility list that results from an examination held in
                                                              accordance with this chapter." Code [**20] Section
                                                              143.021(c). 2 In addition to "classified" policemen under
[**18] DISSENTING OPINION                                     the Act, HPD also employs approximately 2,000
                                                              employees who do work that does not require the
    Raul A. Gonzalez, Justice
                                                              specialized training of police officers, such as clerks,
     Does the law mandate that a police officer who           secretaries, computer operators, mechanics, janitors and
knows nothing about mechanics be promoted over a              the like. These employees are protected by another civil
civilian master mechanic to be head of the automobile         service ordinance that covers municipal employees.
fleet maintenance department of the City of Houston
                                                                     2 See Tex. Rev. Civ. Stat. Art. 1269m, § 8(b)
Police Department (HPD)? Did the legislature mandate
                                                                     (repealed).
that only a police officer can supervise other police
officers, even if the task at hand requires no special law         In recent years, the trend in the HPD has been to
enforcement skills, or that only a police officer can be in   "civilianize" the police department: that is, to hire
charge of the police computer department, police garage,      additional civilians throughout the department for
or Police Training Academy? These absurd consequences         managerial and technical roles in order to free up trained
flow as a result of the majority opinion and are not          police officers for the police work that only classified law
supported by logic, prior case law, the statute, or the       enforcement personnel can do. The city ordinances have
history of the statute.                                       ranked Houston police officers below the non-classified
                                                              chief of police in the following classifications, from
    I agree with the court of appeals that the Firemen's
                                                              highest to lowest rank: assistant chief, deputy chief,
and Policemen's Civil Service Act 1 (the Act) applies
                                                              captain, lieutenant, sergeant, police officer, and
only to positions requiring performance of traditional law
                                                              probationary police officer. In [**21] my opinion, these
enforcement duties such as making arrests, enforcing the
                                                              are the career ladder positions that the Act endeavors to
law and conducting investigations. Moreover, I do not
                                                              protect.
                                                                                                                     Page 7
                                    807 S.W.2d 290, *296; 1991 Tex. LEXIS 23, **21;
                                                  34 Tex. Sup. J. 408


      [*297] The city ordinances that the petitioners                 An existing position or classification or a position or
assert are in conflict with the Act were passed between         classification created in the future either by name or by
1982-1985. 3 These ordinances created nine "civilian"           increase in salary may be filled only from an eligibility
departments or job assignments encompassing some of             list that results from an examination held in accordance
the duties formerly performed by classified police              with this chapter." [Code section 143.021.] 6
officers. The ordinances created four police administrator
divisions: Planning and Research, Crime Information                 An eligibility list for a beginning position in the fire
Center, Police Garage, and the Police Training Academy.         or police department may be created only as a result of a
The duties assumed by police administrators were                competitive examination held in the presence of each
formerly assigned to captains. The ordinances also              applicant for the position. . . . A person may not be
created the following job assignments: two assistant            appointed to the fire or police department except as a
police administrators; urban policy planner IV, an              result of the examination. [Code section 143.025(b).] 7
administrative assistant IV, and an education coordinator
                                                                     Each person employed by the police department who
in the police academy, each of which is roughly equal in
                                                                is a member of the technical or communications class is
salary and assignment to positions held by a lieutenant.
                                                                eligible [*298] for a promotion within that class. [Code
       3 Houston, Tex., Ordinances 82-1165, 84-1290,            section 143.109(b).] 8
       and 85-568.
                                                                      Each provision of this chapter relating to eligibility
    In 1986, the city council passed City Ordinance             lists, examinations, appointments, and promotions applies
86-1278, which implemented [**22] a plan for                    to the appointment or promotion of members of the
reorganization by creating four new bureaus in HPD:             technical, communications, and uniformed and detective
Management Information, Fleet Maintenance, Career               classes within the member's respective class. [Code
Development, and the Office of Planning and Research.           section 143.109(e).] 9
The duties and functions of these bureaus were taken
                                                                       4 In their application, petitioners assert that "the
from other departments which were assumed into these
                                                                       only construction which harmonizes all of the
new bureaus and four civilian administrators were
                                                                       Act's provisions is the one which affords civil
promoted to head these bureaus. Before this
                                                                       service protection to all members of police
reorganization, bureaus were traditionally headed by
                                                                       departments, regardless of whether their job
deputy chiefs.
                                                                       requires police work." This position, shared by the
     The petitioners in this case are HPD police officers              dissent in the court of appeals, 762 S.W.2d 189,
of various ranks who are at or near the top of the                     was abandoned by petitioners during oral
promotion eligibility list for their respective rank. They             argument of this case:
allege that the hiring of civilians to fill the new positions
                                                                           J. Mauzy: Counselor, are you taking the
violates the Act and assert that had the Act been
                                                                       position that the state civil service law applies to
followed, each would have been promoted either into one
                                                                       every employee of the police department?
of the newly created job assignments or into one of the
positions vacated by officers who were themselves                             Attorney for Petitioners: No your honor, I am
promoted.                                                              not.
     The petitioners argued in their application for writ of               J. Hecht: You do agree that there are some
error that the mandatory promotion procedures of the Act               employees of the police department who are not
govern all positions in the HPD, 4 not merely those which              covered by the statute, and now the squabble is
entail traditional law enforcement duties. The Act                     which ones are which?
provides:
                                                                           Attorney for Petitioners: I think that is a
     The commission shall provide for the classification               possible interpretation.
of all fire fighters [**23] and police officers. [Code
section 143.021(a).] 5                                                    J. Hecht: In essence there are some
                                                                       employees of a police department who are not
                                                                                                                     Page 8
                                    807 S.W.2d 290, *298; 1991 Tex. LEXIS 23, **23;
                                                  34 Tex. Sup. J. 408


         covered by the statute? That is your view?             "police officer" covered by the Act, we can determine the
                                                                intended scope of the Act.
              Attorney for Petitioners: I think that probably
         is the correct interpretation.                              The earliest predecessor to [**26] this section,
[**24]                                                          Article 1269m, section 2, broadly defined "policeman" as
         5 See Tex. Rev. Civ. Stat. Art. 1269m, § 8(a)          "any member of the police department who draws
         (repealed).                                            compensation for his services as a member of said
         6 See Tex. Rev. Civ. Stat. Art. 1269m, § 8(b)          department." 12 Act of June 2, 1947, ch. 325, § 2, 1947
         (repealed).                                            Tex. Gen. Laws 550, 551. This definition was construed
         7 See Tex. Rev. Civ. Stat. Art. 1269m, § 9(a)          by some courts to include: juvenile social workers, switch
         (repealed).                                            board operators, linemen, clerks, mechanics and other
         8 See Tex. Rev. Civ. Stat. Art. 1269m, § 14A(a)        employees incidental to the operation of the police
         (repealed).                                            department. See City of San Antonio v. Handley, 308
         9 See Tex. Rev. Civ. Stat. Art. 1269m, § 14A(d)        S.W.2d 608 (Tex. Civ. App. -- San Antonio 1958, writ
         (repealed).                                            ref'd); City of Wichita Falls v. Cox, 300 S.W.2d 317 (Tex.
                                                                Civ. App. -- Fort Worth 1957, writ ref'd n.r.e.); City of
     The petitioners assert that the court of appeals'          San Antonio v. Hahn, 274 S.W.2d 162 (Tex. Civ. App. --
construction of "classified positions" as only those            Austin 1954, writ ref'd n.r.e.); City of San Antonio v.
positions which require the performance of police work,         Wiley, 252 S.W.2d 471 (Tex. Civ. App. -- San Antonio
cannot be harmonized with the broad language of these           1952, writ ref'd n.r.e.).
sections. I disagree. The Act provides that each "police
officer is classified as prescribed by this subchapter and             12 With the recodification of the act into the
has civil service protection." Code section 143.021(b). 10             Local Government Code, the term "policeman"
In my view, the Act's definition of "police officer"                   was replaced by "police officer." Tex. Local Gov't
controls the scope of the chapter and precludes                        Code Ann. § 143.003 (Vernon 1988).
application of the Act to the disputed job assignments. In
my opinion, the Act applies to HPD members who were                   [**27] In reaction to these cases, the legislature
appointed to their position "in substantial compliance          narrowed the scope of coverage of the Act by changing
with this chapter [chapter 143, which is the entire Act] or     the definition of "policeman." In 1957, Section 2 of the
who is entitled to civil service status under [**25]            Act was amended to define "policeman" as "any member
Section 143.005, 143.084, or 143.103." Code section             of the Police Department appointed to such position in
143.003(5). 11                                                  substantial compliance with the provisions of Sections 9,
                                                                10, and 11 of this Act. . . ." Act of 1957, ch. 391, § 1,
         10 See Tex. Rev. Civ. Stat. art. 1269m, § 8(c)         1957 Tex. Gen. Laws 1171. Sections 9, 10, and 11
         (repealed).                                            provided some of the qualifications for entry positions as
         11 At the time of suit, the predecessor to this        a policeman. After the 1957 amendment, the Act
         statute defined policemen as those appointed "in       mandates that we look to the qualifications for
         substantial compliance with the provisions of          appointment to the beginning position of police officer to
         sections 9, 10, and 11 of this Act, or entitled to     determine the Act's coverage. 13
         Civil Service Status under section 14B or 24 of
         the Act." Tex. Rev. Civ. Stat. art 1269m, § 2.                13 Now the code defines a police officer as one
         Sections 9, 10, and 11 refer to the qualifications            appointed in substantial compliance with chapter
         of beginning policemen, as described below.                   143 of the code, i.e., the entire act. Tex. Loc. Gov't
                                                                       Code Ann. § 143.003(5) (Vernon 1988).
    The majority declares that this definition is circular,
arguing that the Act can be avoided by not requiring any             [*299] The majority concludes that because the Act
standards of applicants. But the fact that the Act can be       includes a requirement that applicants be tested on their
given one absurd construction does not justify the              knowledge of "police work and work in [**28] the
opposite extreme. From the legislative history and case         police department," we must expand the Act's coverage
law concerning who was covered by the Act formerly,             beyond traditional law enforcement positions. This
along with an analysis of the requirements to become a          section suggests that a good officer has to know
                                                                                                                   Page 9
                                   807 S.W.2d 290, *299; 1991 Tex. LEXIS 23, **28;
                                                 34 Tex. Sup. J. 408


something of the department bureaucracy, but does not                 reasonably require them to meet the requirements
mean that department bureaucrats must be police officers.             of the statute, those performing traditional law
Otherwise, it can just as easily be argued that since the             enforcement duties.
statute requires that all applicants must be able to speak
English, 14 all English speakers are covered by the Act.             [**30] Finally the Act requires all beginning police
                                                               officers to meet the "legal requirements necessary to
       14    Tex. Loc. Gov't Code Ann. § 143.023(f)            become eligible for future licensure by the [Texas]
       (Vernon 1988).                                          Commission on Law Enforcement Officers Standards and
                                                               Education." TEX. LOC. GOV'T CODE ANN. §
     I would not restrict the inquiry to the fact that a       143.023(e) (Vernon 1988). 17 To be eligible for licensing
written exam is required covering the subjects of police       a party must exhibit weapons proficiency. TEX. GOV.
work and work in the police department. The Act does           CODE § 415.052(a)(5) (Vernon 1990). The Texas
not suggest we may select one of the requirements for          Administrative Code defines proficiency in terms of
appointment to an entry position and ignore all others in      being able to achieve a score of seventy percent shooting
determining legislative intent. A written examination is       various weapons at certain distances. 37 Tex. Admin.
not the only requirement imposed on all applicants by          Code § 211.104 (1990). Before the court gives too
these sections. The Act also requires that, generally, no      expansive an interpretation to the Act, it should keep in
beginning applicant may be over 36 years of age. 15 It         mind that those covered by the Act must meet these
also requires that all [**29] applicants for the same          additional requirements. It is not true, as the court's
position meet the same physical requirements. 16               opinion would indicate, that all a civilian has to do to
                                                               qualify for a position is sit down and study for a written
       15 The Act provides:                                    examination. Under the court's opinion, a civilian
                                                               computer genius who is 37 or has a physical disability is
            A person who is 45 years of age or older may
                                                               forever barred from supervising the police computer
       not be certified for a beginning position in a
                                                               department because some employees of the department
       police department. A person who is 36 years of
                                                               are police officers. For the same reasons, a civilian
       age or older and under 45 may not be certified as
                                                               master mechanic could not be in [**31] charge of the
       eligible for a beginning position in a police
                                                               police garage or the best available civilian educator could
       department unless the person has at least five
                                                               not be in charge of the police academy. Thus, from the
       years' experience as a peace officer or at least five
                                                               legislative intent to narrow coverage to "police officers,"
       years' of military experience.
                                                               and the nature of the requirements imposed on beginning
           Tex. Loc. Gov't Code Ann. § 143.023(c)              "police officers," it must be concluded that the Act
       (Vernon 1988). I do not see how the local               applies only to the hiring and promotion of employees
       commission is authorized to make a exception as         who were originally appointed to HPD as law
       the majority suggests.                                  enforcement officers, and does not affect HPD's
       16 The Act requires:                                    employment of civilians.

            The commission shall set the age and                      17 See Tex. Rev. Civ. Stat. art. 1269m, § 9(e)
       physical requirements for applicants for beginning             (repealed).
       and promotional positions in accordance with this
                                                                    This common sense interpretation is consistent with
       chapter. The requirements must be the same for
                                                               the legislative and judicial history of the Act. Favoring a
       all applicants.
                                                               statutory      construction      without     discriminatory
            Tex. Loc. Gov't Code Ann. § 143.022(a)             implications, [*300] I am convinced that it is the nature
       (Vernon 1988). See Tex. Rev. Civ. Stat. art.            of the job and not the qualifications of one's subordinates
       1269m, § 9(d) (repealed). While it is possible that     that determines whether a supervisor must be a police
       the commission could make a "soft track" and a          officer. If an officer is performing a job that does not
       "hard track," I find the simpler explanation to be      require traditional law enforcement skills, it makes no
       that the legislature intended to narrow the Act's       sense to require that his or her supervisor must [**32] be
       applicability to those whose job responsibilities       a law officer. I would hold that it is only those
                                                                                                                   Page 10
                                   807 S.W.2d 290, *300; 1991 Tex. LEXIS 23, **32;
                                                 34 Tex. Sup. J. 408


supervisory positions which require the supervision of                laboratory analysis and interpretations or the
traditional law enforcement functions that are "classified"           technical aspects of criminal identification and
supervisory positions.                                                photography." See Tex. Rev. Civ. Stat. art.
                                                                      1269m, §§ 14A & 14B (repealed).
     I disagree that the mere fact that a supervisor
supervises classified police officers mandates that the              [**34] Furthermore, as a matter of law there was
supervisor must also be a police officer as defined by         not a failure to fill a vacancy within a classification in
statute. In my opinion, the legislative and judicial history   violation of the Act. The Act requires the city council to
clearly indicates that the 1957 amendment operated as a        establish by ordinance the classification of police
legislative overruling of the pre-1957 constructions of the    officers, and the number of positions in each
Act, and narrowed the scope of the application of the Act      classification. Id. Section 143.021(a). 19 The council
to police department employees who perform law                 created the classifications of Assistant Chief, Deputy
enforcement duties.                                            Chief, Captain, etc. The council does not set forth the job
                                                               assignment or title that is at issue here. The four positions
     Petitioners argue that the specific inclusion of          in question are the heads of (1) the Management
specialty positions shows that the Act must have broader       Information Bureau (performing the functions of the
application. 18 The fact that the legislature must             former Technical Services Bureau, and the Computer
affirmatively act to extend the Act protection to a class of   Services Division); (2) the Fleet Maintenance Bureau; (3)
police department employees implies legislative intent         the Career Development Bureau; and (4) the Office of
that the Act does not automatically extend to all              Planning and Research were created by the Chief of
employees. Also, petitioners ignore the fact that the same     Police, rather than created by ordinance. The number of
statutes expressly preclude the exact "crossover               classified positions were not reduced as a result of the
promotions" which petitioners are now seeking:                 department's reorganization, although some classified
                                                               officers were transferred to different job assignment. The
     A member of a particular class is not eligible for        police civil service system protects classifications, and
promotion to a [**33] position outside that class and          positions within the classification, but does not create a
lateral crossover by promotion by a member of one class        vested interest in any particular job assignment [**35] .
to another class is prohibited. If a member of one class       Since no classified position was lost, as a matter of law
wants to change classes, the member must qualify and           the plaintiffs have no cause of action. 20
enter the new class at the lowest entry level of that class.
                                                                      19 See Tex. Rev. Civ. Stat. art. 1269m, § 8(a)
     TEX. LOC. GOV'T CODE ANN. § 143.103(b)                           (repealed).
(Vernon 1988); see also Section 143.109(c). The Act                   20 The majority describes a "horizontal" and
further provides:                                                     "vertical" classification system that does not exist
                                                                      either in the facts of this case or in the Act. There
      Each provision of this chapter relating to eligibility
lists, examinations, appointments, and promotions applies             is no evidence that the legislature ever
                                                                      contemplated or intended the Act to be analyzed
to the appointment or promotion of members of the
                                                                      in this fashion. The Act does not discuss
technical, communications, and uniformed and detective
                                                                      non-classified employees of the department, and
classes within the members' respective class.
                                                                      certainly does not mandate that any supervisor
    Id. Section 143.109.                                              whose duties include the supervision of classified
                                                                      officers must also be classified.
       18     Tex. Loc. Gov't Code Ann. § 143.103(a)
       (Vernon 1988) extends the act to special peace                      Moreover,       there    is    no      horizontal
       officers such as park police and airport police.               classification in the Act that is not satisfied by the
       Section 143.109 extends the act to a                           Houston system of providing for the various ranks
       "communications class", which "each person who                 of the police officers. The Act does nothing more
       performs the technical operation of police radio               than require that classified police officers be
       communications", and "technical class" which                   permitted to advance in rank to the same extent
       includes "each person who performs criminal                    after the reorganization of the department as
                                                                                                                  Page 11
                                  807 S.W.2d 290, *300; 1991 Tex. LEXIS 23, **35;
                                                34 Tex. Sup. J. 408


       before. The Houston ordinances satisfy this            conclude that the clerk-typist position was classified
       requirement.                                           under this standard. Furthermore, the argument that
                                                              [**38] the conjunction "and," S.W.2d at n.7, solves
      [**36] [*301] I am as troubled by the questions         the problem misses the point -- the proposed standard is
left open by the so-called "standard" adopted in today's      still confusing and subject to broad interpretation.
opinion. The court writes:
                                                                   The court of appeals' common sense reading of the
     In the absence of a clear definition of "police          statute was much more likely to result in unequivocal
officers," courts should determine the scope of the Act by    answers as to whether a position was classified. The court
viewing the statute as a whole. The Act applies to any        of appeals' standard established that only positions
position requiring a competitive examination. 21              requiring performance of law enforcement duties or
(Citations omitted.) Such an examination tests an             supervision of police officers performing law
applicant's "knowledge of and qualifications for . . .        enforcement duties were classified. 762 S.W.2d at 187.
police work and work in the police department," as well       Under this standard, there is no way a court could find
as the applicant's "general education and mental ability."    that a clerk-typist position was classified. Thus, I agree
(Citations omitted.) We conclude, then, that the Act          with the court of appeals opinion and would affirm the
applies to any position requiring proficiency in all of       court of appeals judgment.
those areas. If a particular position requires substantial
knowledge of "police work and work in the police                   Finally, I am concerned with the procedural
department," then it must be classified.                      disposition of this case. The court "hold[s] that the
                                                              challenged placements contravened the Act's requirement
    S.W.2d at    .                                            that all covered positions be filled in accordance with the
                                                              statutory terms," and "reverse[s] the judgment of the
       21 None of the nine civilian departments or job        court of appeals and remand[s] the cause to the trial court
       assignments in question require the taking of          for entry of judgment in accordance with this opinion."
       competitive examinations.                                 S.W.2d at . This disposition is confusing. What does
                                                              this [**39] mean? What is the trial court to do? The only
     Who determines that a particular position requires
                                                              guidance given to the trial court to determine if the
[**37] knowledge of "police work and work in the
                                                              positions are classified is the majority's so-called new
police department?" The Mayor? City Council? Police
                                                              standard: Whether the positions requires proficiency in
Chief? Police Unions? Civil Service Commission? The
                                                              "'knowledge of and qualifications for police work and
Courts?
                                                              [*302] work in the police department,' as well as 'general
     By its very nature, all supervisory positions require    education and mental ability.'" S.W.2d at . However,
that the supervisor know something about the work he or       the majority correctly states that whether a position
she is supervising whether in the police department or        comes within the ambit of the Act is a question of law.
elsewhere. Does today's opinion stand for the proposition          S.W.2d at       . Questions of law are within our
that all supervisory positions within the police              jurisdiction to render final judgment. Why then does the
department will always be covered by the Act?                 majority duck rendering judgment in this case? Is this a
                                                              signal that the court expects for the trial court to conduct
     I am also concerned that the majority overestimates      an evidentiary hearing before it issues another ruling in
the effectiveness of its new standard. I disagree that "the   this case.
standard we discern today should, in most cases, produce
an unequivocal answer as to whether a particular position          There is no purpose in our remanding this cause to
may be classified." S.W.2d . The majority's conclusion        the trial court for it to "enter" (render) a judgment that we
that "the duties of an ordinary clerk-typist in the police    can render. Alternatively, if the trial court is to hear more
department do not require knowledge of police work and        evidence regarding whether the positions in question are
work in the police department" is not so obvious under        classified in light of the court's new nebulous standard,
this standard. It seems that all employees of the police      then the whole case should be remanded, in the interest of
department must have some knowledge of police work            justice, for new trial. Also, the court of appeals [**40]
and work in the police department so a court could            never reached the city's factual insufficiency points and
                                                                                                                  Page 12
                                    807 S.W.2d 290, *302; 1991 Tex. LEXIS 23, **40;
                                                  34 Tex. Sup. J. 408


today's opinion denies the city their right to a meaningful
appellate review.                                              523 S.W.2d 641, 645 (Tex. 1975) (emphasis added). I
                                                              agree with the City that the petitioners have failed to meet
     In conclusion, the majority's convoluted opinion         this rigorous burden.
muddles the law and is micro management at its worst.
Absent corrective legislation, the court's failure to give         The court holds that the [**42] Act proscribes the
clear guidance to the bench and bar will not only serve to    City's attempt to restructure the police department by
keep this case and others like it in the courts for some      ordinance. The City does not advocate an absurdist
time to come but will also thwart the Act's purpose of        construction which would "nullify the Act as a whole."
facilitating efficient police and fire departments.              S.W.2d      n. 3. There is no dispute that the Act is
                                                              clearly intended to protect traditional law enforcement
    For all of these reasons, I dissent.                      positions. The issue here is whether the Act clearly
                                                              extends coverage beyond such positions. The majority
DISSENTING        OPINION        ON        MOTION     FOR     opinion does not demonstrate how this legislative intent
REHEARING                                                     appears "with unmistakable clarity." To the contrary, it is
                                                              replete with observations about the lack of a clear
    Raul A. Gonzalez, Justice
                                                              expression of legislative intent. For example the opinion
     In its motion for rehearing, among other things, the     states:
City of Houston alleges that the court: (1) failed to apply
                                                                   the Act requires the city council, or other legislative
the proper standard of review; (2) misinterpreted the
                                                              body, to provide by ordinance [*303] for the
purpose and significance of section 143.023(e) of the
                                                              classification of all fire fighters and police officers; that
Firemens' and Policemens' Civil Service Act 1 (the Act);
                                                              is, to place all such officers within the protection of a
(3) erred by judicially amending the Act to add words not
                                                              civil service system. Section 143.021. The proper
expressly or necessarily implied in the language of the
                                                              boundaries of that system, however, are not clear.
Act; and (4) that the majority opinion is internally
inconsistent. I agree.                                            S.W.2d at     (emphasis added).
       1 Tex. Loc. Gov't Code Ann. §§ 143.001-.134                With a 1957 amendment, however, the Act's
       (Vernon 1988 & Supp. 1991).                            definition of "policeman" [i.e., those covered by the Act]
                                                              became less clear. . . . Thus, since 1957, the Act's most
      [**41] The constitution grants broad discretionary
                                                              [**43] important definition has been circular.
powers to home-rule cities subject to the limitation that
ordinances must not be inconsistent with the constitution         S.W.2d at     (emphasis added).
or other state statute. TEX. CONST. art. XI, § 5; City of
Richardson v. Responsible Dog Owners, 794 S.W.2d 17,               Since the adoption of the new definition of
19 (Tex. 1990). Therefore, we should hold that a state        "policeman," the legislature has amended the statute at
statute restricts local autonomy only if the legislative      least thirty-two times. In none of those instances,
intent to do so is unmistakably clear. As we said in Lower    however, did the legislature address the opaqueness of
Colorado River Authority v. City of San Marcos:               the statute's most basic provision. Until the legislature
                                                              clearly defines the scope of the Fire Fighters' and Police
     A limitation on the power of home rule cities by         Officers' Civil Service System, courts will be left to apply
general law or by charter may be either an express            the vague standard we discern today to increasingly
limitation or one arising by implication. "Such a             complex bureaucracies.
limitation will not be implied, however, unless the
provisions of the general law or of the charter are clear          S.W.2d at        (emphasis added). Thus the court
and compelling to that end." [Glass v. Smith, 150 Tex.        concedes that there is no evidence of a legislative intent
632, 244 S.W.2d 645, 649 (Tex. 1951)]. The intention of       that the Act must cover any supervisor of a classified
the Legislature to impose such limitation must "appear        officer.
with unmistakable clarity." [City of Sweetwater v. Geron,
380 S.W.2d 550, 552 (Tex. 1964)].                                 In reaching its decision, the court announces a
                                                                                                               Page 13
                                  807 S.W.2d 290, *303; 1991 Tex. LEXIS 23, **43;
                                                34 Tex. Sup. J. 408


two-prong test, but fails to apply it to supervisors.        competitive testing, that policy is served. Another clear
Instead, the court announces an additional rule that         policy of the Act is development and maintenance of an
categorically, supervisors of classified employees must      efficient and capable police force. Id. This policy is not
themselves be covered by the Act. It does so based on a      well served by requiring that positions be filled by
concept that "vertical declassification" is permissible      persons qualified to be licensed officers without regard
while "horizontal" declassification is not. As the City      for whether those skills are relevant to the job to be
correctly points out in its motion for rehearing, these      performed. This objective is of particular concern given
concepts or categories are nowhere [**44] to be found in     Houston's documented need to devote more qualified
the language of the Act nor its legislative history. They    personnel to traditional law enforcement duties.
are of the court's own creation.
                                                                  The majority's infringement on local autonomy is
     The Act unmistakably expresses a policy of              unwarranted absent a clear expression of legislative intent
providing a career ladder for "police officers" free from    to that effect. For these reasons and those discussed in my
political influence. TEX. LOC. GOV'T CODE ANN. §             earlier dissenting opinion, I would grant the motion for
143.001(a). Nothing in the City's system threatens that      [**45] rehearing.
policy. If, as here, the number of positions at every rank
is not diminished, and a covered officer is afforded the         Justice Cornyn joins.
full panoply of rights such as advancement by
