Wednesday, July 18, 2007

The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients -

If this was leaked to the media did the Caller Times tell us about this pedophile?

Did the Caller publish any stories on this matter?

And the CCISD Board did they inform the community?

The Serpent IN the Garden January 14, 1996 Houston: CCISD board President Henry Nuss AQUIESCED. CCISD eagerly supplied pedophile with young patients - even after he had been publicly charged.

CORPUS CHRISTI - James Plaisted was a respected child psychologist, a deacon in one of the city's largest Baptist congregations and the father of four.

He also was a child molester so brazen he escorted little girls into church and fondled them under his coat while listening to the sermon.

Parents knew. So did church pastors, school officials and state regulators. But few did anything to stop him, and those who tried were remarkably unsuccessful.

It took 10 years to get Plaisted behind bars. Only he knows how many children he molested during that time.

Last month, Plaisted - already serving a two-year federal prison term for luring a Texas patient to Boston to continue molesting her -was brought back to Corpus Christi in chains.

He pleaded guilty to sexually assaulting four girls and was sentenced to 40 years in prison.

State regulators have yet to revoke his license to practice psychology.

""I think the Plaisted case is the model of what happens when the system fights with itself," said Susan Snyder, a Kingsville attorney and former prosecutor who tried to lock up Plaisted in 1992.

""Obviously, there have been safeguards in place to prevent this man all along, but either (state officials) were too lazy or too busy, or too scared of the politics of going and yanking this man's license," Snyder said. ""It's not the legal system failing. It's the people within the legal system that refuse to let the legal system work."

It's not as if no one tried.

Carmen Alvarado, the mother of the first child to accuse Plaisted more than 10 years ago, sought criminal charges against the therapist and filed an ethics complaint with the Texas Board of Examiners of Psychologists. She alleged that Plaisted had fondled her son's penis during a late-night counseling session.

Alvarado called the Parkdale Baptist Church, where Plaisted, 46, was a deacon.

""They said they were leaving it in God's hands," she recalled.

""I don't think they were thinking straight at the time."

She went to other parents. She got no help.

In the end, it was just her son's word against Plaisted, who told a Corpus Christi jury in 1986 that the 6-year-old child was a habitual liar and a pyromaniac who derived sexual excitement from setting fires. It didn't help that a new prosecutor was assigned to the case just before trial.

The jury acquitted Plaisted; his practice continued.

""It made me mad because when I went for help, all I asked was for them to testify," Alvarado recalled. ""We lost because my son was the only witness we had."

""It was a very tough call to make," said another victim's mother. ""And looking back, I really should have crucified him, but I didn't. I chose not to after talking to my attorney. He told me it would just really traumatize my daughter."

The Corpus Christi woman, who asked not to be identified, said she did confront Plaisted and his wife, who were neighbors in 1984, when her daughter was allegedly molested while spending the night with one of Plaisted's daughters.

""He did not deny it," she said. ""He said he could have done it

in his sleep."

Plaisted's wife laughingly added that she and her husband often made love at night, and he would not remember the next morning, the woman said.

The woman, who was also a member of the Parkdale Baptist Church, recalled telling church officials later about Plaisted's molestations.

""But it didn't seem to make any difference," she said. ""The church really backed him up, and a lot of people left the church after that."

Plaisted's attorney, Doug Tinker, refused to allow the Chronicle to interview his client. The criminal defense lawyer, who earlier this year represented Yolanda Saldivar, who was convicted of murdering Tejano star Selena, declined to discuss the Plaisted case.

The victims' families have since sued the church for negligence, but Parkdale's lawyer argues the congregation should not be held responsible for Plaisted's actions.

""It would be the church's wish to get this thing resolved without causing any additional hurt to anyone," said attorney Van Huseman. But he added, ""If a child gets molested in the middle of the service, how does that get to be the pastor's fault?"

Plaisted - a Nebraska native who served in the Army in Vietnam -came to Corpus Christi in 1982 with impeccable credentials, having earned his doctorate in clinical and child psychology from Auburn University in Alabama in 1981.

He quickly built a private practice, and over the years, developed a good reputation as an expert on brain dysfunction.

The Corpus Christi school district, along with local pediatricians, eagerly supplied him with young patients - even after he had been publicly charged. Members of the church also sought his help, and he had hospital privileges at the prestigious Driscoll Children's Hospital, a South Texas institution known both for quality care and charity.

Neighbors described Plaisted as pleasant, reserved, well-spoken. He was methodical, they said, and liked to work on projects around the house.

Plaisted recruited some of his victims from broken homes, showering the children with gifts, inviting them and their parents to Thanksgiving dinners. One 9-year-old girl who spent the night with Plaisted's daughter told prosecutors the psychologist molested her on the sofa in his living room while he and the children watched the movie "Home Alone"

on video.

He curried favor with his victims' parents by lending them money and refusing repayment, or by buying them air conditioners and other gifts. One mother even acted as a character witness for the therapist during the Alvarado trial, unaware that her own child was being molested.

""The bottom line is this guy had complaints filed against him at the psychology board - and they are serious - and the board doesn't notify the school about the complaints," said Jerry Boswell, director of the Citizens Commission on Human Rights, a group funded by the Church of Scientology (SEE CORRECTION) that documents cases such as Plaisted's. ""And the school is still referring children to this guy."

Corpus Christi school administrators said they used Plaisted infrequently for psychological testing of students, although school records and correspondence indicate he was a consultant from 1983 until he was indicted for child sexual assault in late 1992.

School administrators have identified records of five students referred to him for psychological testing between 1985 and 1992. There are no records prior to 1985.

School board President Henry Nuss, who has served on the board for seven years, said he first heard of the Plaisted case when he was contacted by the Houston Chronicle last week.

""We certainly should be more selective in who we're using," he said.

After Plaisted was charged in the Alvarado case in April 1986, Robert J. Garcia, the school district's special education director, wrote to the state psychology board to ask about the psychologist's record. The agency's executive director replied that Plaisted's license had been suspended, but because the psychologist was in the process of suing to get it back, he remained licensed to practice. The letter gave no details about the nature of the complaints.

""He was given a clean bill of health by the only agency that had anything to say about it," said Dr. Adrian Haston, a psychologist who coordinates the school district's psychological services, and who, years ago, shared an office with Plaisted.

Haston emphasized that none of the schoolchildren referred to Plaisted were molested. ""And we never had anything untoward, any problems of that sort," he said.

Asked why the district would risk using a psychologist once accused of being a child molester, Haston replied, ""This is something the district did, and you can ask the director of special education why."

Garcia said in a recent telephone interview that he could not remember whether he knew about the child molestation charges at the time he wrote to the psychology board.

""All I know is we asked for what his status was and they said he could still practice," he said. ""We knew he was under review, but we didn't know what for.

""Look, the state board of psychologists, they're the ones that allowed him to continue to practice," Garcia added angrily.

""If anyone should be asked as to why this guy was allowed to continue, it should be the state board of psychology."

Pressed for further details, Garcia abruptly ended the interview and hung up the phone.

Although Plaisted was acquitted in August 1986 in the Alvarado case, the psychology board continued its investigation and ruled in November of that year that Plaisted had violated professional standards.

The board officially suspended his license for two years, but said he would be allowed to resume his practice in three months.

Meanwhile, Plaisted challenged the suspension in state district court in Austin, arguing the psychology board had unfairly considered allegations that had not been introduced during his hearing, denying him the opportunity to defend himself against them. The judge agreed, and in January 1987 reversed Plaisted's suspension.

While the board was investigating Plaisted's case, they were contacted by Corpus Christi psychologist George Kramer.

Kramer, who had hired Plaisted in 1982 before Plaisted was licensed, told the board to subpoena records of the state Department of Human Resources. It did, and found other instances of alleged molestation by Plaisted.

In April 1989, the board reached an agreement with the psychologist that allowed him to keep his license if he agreed to be supervised for 11/2years. Plaisted was to treat children only in the presence of an associate or in a location where he could be observed by a television monitor. He also was to pay to have Corpus Christi psychologist Joseph Horvat supervise his casework.

Horvat met with Plaisted weekly, but after a year - convinced that Plaisted was doing nothing wrong - he recommended the supervision be terminated six months early. The board decided to continue the supervision.

""I have found no evidence in any way, shape or form of any behavior on his part which could be in any way construed as unprofessional or unethical," Horvat wrote to the board.

Included in one of his reports to the board was a review of Plaisted's treatment of an 8-year-old girl - a child Plaisted was later charged with molesting.

The board's general counsel, Barbara Holthaus, acknowledged past actions taken by the agency were inadequate.

""With hindsight, of course it wasn't appropriate, because look at what happened," Holthaus said. But she said the board has since added lay people to its ranks and has a new, tougher state law giving it better enforcement powers.

""Now, if we get a report that a psychologist is molesting a client, we can go before a judge and say we want to temporarily suspend the license," she said.

Holthaus said the board has filed a motion to revoke Plaisted's license, but Plaisted is fighting it.

""It's all kind of moot, because he's incarcerated," she said.

Soon after Plaisted completed his board-ordered supervision, Corpus Christi police received new information from state child welfare workers that Plaisted had been molesting girls at his office, in church and at home in his hot tub.

Former detective Eric Michalak, who now works in Colorado, remembered taking the Plaisted case to a Nueces County assistant district attorney for prosecution.

""He wanted to get a warrant for the doctor and arrest him, because we had very strong evidence against him," Michalak said. ""We had multiple victims and you had a guy in the position he was in, where he had access to all these victims.

You would want to take quick action rather than let it go on for so long."

The prosecutor was overruled by then-District Attorney Grant Jones, Michalak said. ""(Jones) just said, `We're not getting a warrant. We're taking our time.' He wanted the kids reinterviewed by one of the prosecutors.

""Any time you go after someone like that, there's a lot of politics that come into play," Michalak added. ""Instead of stepping in right then, and bringing it out in the open and taking it to a grand jury (for indictment), they delayed."

Jones contends that any delay in prosecution was an effort ""to tie the case down tight. We didn't want to lose him twice,"

said Jones, on whose watch Plaisted was acquitted in the Alvarado case.

Jones called it ""outrageous" the psychology board still hasn't revoked Plaisted's license.

""They should have done it in 1986," he said. ""What they want to do is wait around until you go to trial and you convict him, and then they come in behind your conviction and revoke his license. Well, what's he doing in the meantime? He could be out in the community molesting kids for two years."

Michalak said the case was finally taken to the grand jury several months later after he leaked the information about Plaisted's investigation to the local media.

""It was taking too long, and it wasn't being handled like another case," he said. ""And it was because he was so prominent in the community."

Plaisted was finally indicted in Corpus Christi in October 1992. He posted bond, closed his practice in Corpus Christi, and negotiated an agreement with the psychology board to place his license on inactive status until he could prove his innocence.

He then moved to Boston, where he enrolled in Boston University Law School and successfully completed his first year of studies by May 1994.

While in law school, Plaisted began calling a former patient - the girl whose treatment Horvat had reviewed in Corpus Christi. Plaisted convinced the girl's mother - who was also a patient of his - to bring the girl to Boston for additional therapy.

Plaisted's plans were foiled when a policeman setting up a speed trap in his neighborhood accidentally intercepted on his police radio a sexually explicit telephone call between the girl and Plaisted, who was using a cordless phone.

FBI agents were called in, six other calls were taped, and Plaisted was arrested on June 3, 1994, after he met the girl, then 13, and her mother at the train station and took them to a budget motel.

""The mother wasn't aware" of the molestations, said Adolfo Aguilo, an assistant Nueces County district attorney. ""The mother had a borderline personality disorder - she developed dependency on people -and unfortunately for her the person she developed a dependency on was Dr. Plaisted."

Sgt. Michael Harpster, a police detective from suburban Boston who helped arrest Plaisted, described him as ""very congenial, almost shy."

""He'd answer questions very courteously, but he didn't show any outward signs of knowing the seriousness of the situation," Harpster said.

Last January, Plaisted was sentenced by a federal judge in Boston to a two-year prison term after he pleaded guilty to transporting a minor across state lines to engage in illegal sexual activity.

The Corpus Christi conviction and sentence came almost a year later.

In the end, Plaisted admitted molesting four victims. But prosecutors say no one will ever know how many others failed to come forward.

""I imagine there could be several other victims. Through his practice and the church he probably had access over the years to thousands of children," said Aguilo, the Corpus Christi prosecutor who eventually secured Plaisted's guilty plea.

""To me, any kid that came in contact with this guy was a victim in some way or another," added Michalak.

When Plaisted was sentenced last month, it was a bitter emotional meeting for many of his young victims and their parents, who had been called as witnesses in case Plaisted decided against the plea bargain.

Parents said Plaisted stood up straight, held his head high and looked the judge in the eye. And when he saw the relatives of his former victims, he acted as if he were attending a reunion of old friends, they said. One parent said Plaisted looked as if he thought they were there as supporters or character witnesses.

""He turned around and gave the families a big smile," Alvarado said. ""I couldn't believe it."

Alvarado, who sued Plaisted in civil court, has received a settlement for an undisclosed amount. Her son, now a teen-ager, is still struggling with his past abuse, she said, and she continues to feel betrayed by those who would not join her in speaking out years ago.

""I told them if they had helped me in the beginning, none of this would have happened," she said.

Plaisted timeline

Key dates in the career of Dr. James R. Plaisted:

January 1983: Licensed to practice psychology in Texas.

October 1984: Investigated by Texas Department of Human Resources for allegedly molesting a neighbor's child.

April 1986: Charged in criminal case for allegedly fondling a boy during therapy.

August 1986: Acquitted by jury in Corpus Christi.

October 1992: Indicted for sexual abuse of three Corpus Christi girls.

December 1992: Closed Corpus Christi office; moved to Boston to begin law school.

June 1994: Arrested by FBI agents for luring a 13-year-old former Corpus Christi patient to Boston.

January 1995: Indicted by Corpus Christi grand jury on three counts of aggravated sexual assault for incidents years earlier involving the same girl.

January 1995: Sentenced to two years in federal prison in Boston case.

Dec. 7, 1995: Sentenced to 40 years in state prison by a Corpus Christi judge after pleading guilty to five counts of aggravated sexual assault of a child.

Sunday, June 24, 2007

republic of texas: According to the Sentence Ramsey is to be Confined in Texas

Former Raza Unida gubernatorial candidate Ramsey Muñiz has been transferred from a federal corrections institute in Three Rivers six months after arriving at the facility.

Muñiz, who ran for governor of Texas in 1974 and 1975 under the Raza Unida Party, was transferred from Three Rivers on Tuesday.

Mike Truman, spokesman for the Federal Bureau of Prisons, said Muñiz is being housed in the Federal Transfer Facility in Oklahoma City until he can be transferred to another facility.

Truman said he could not release where Muñiz would be transferred or when, citing security concerns. He also said he did not know why Muñiz was transferred.

Muñiz, 64, is serving a life sentence for three felony drug convictions.

The Three Rivers Federal Correctional Institute, 77 miles northwest of Corpus Christi, has been the closest the former Miller High School football star and local defense attorney has been to home since his 1994 conviction.

Under the banner of Raza Unida, a political party shaped and led by Hispanic activists seeking a political voice, Muñiz earned support from 6 percent the state's registered voters.

Muñiz's wife, Irma Muñiz, said she was surprised to learn of the transfer especially because senators, congressmen and civic groups have written letters to the Federal Bureau of Prisons on her husband's behalf.

Irma Muñiz said her husband had hoped to be housed at the Three Rivers facility because of its proximity to his family in South Texas.

Since he was transferred there in December from an institute in Colorado, Irma Muñiz has made frequent trips to visit her husband.

She likened Muñiz's transfer out of Three Rivers to the treatment of Hispanic Civil Rights figure Felix Longoria.

Longoria, a U.S. Army private killed on-duty in the Philippines in 1945, was refused a proper funeral in his hometown of Three Rivers because the only funeral home in town didn't allow Hispanics to use its funeral chapel.

Civil Rights hero Dr. Hector P. Garcia interceded and U.S. Sen. Lyndon Johnson arranged for Longoria to be buried in Arlington National Cemetery.

Joe Ortiz, League of United Latin American Citizens district director and national and state civil rights director of the American GI Forum, helped organize letter-writing campaigns when Muñiz was in Colorado asking for his transfer to Texas.

Ortiz didn't know about the transfer out of Three Rivers but said both LULAC and the American GI Forum will work toward getting Muñiz returned to Texas.

"We are going to petition our legislators to see if they can do anything to bring him back," Ortiz said.

Contact Adriana Garza at 886-3618 or garzaa@caller.com

Posted by geomatica on June 21, 2007 at 9:47 p.m. (Suggest removal)

I am certain that Ramsey Muniz was falsely imprisoned, but no matter what you believe, he was and is a model prisoner, and it is a complete waste of taxpayer money to be moving him all over, when it makes the most sense for him to be here near his family. He didn't kill anybody, and his treatment has been nothing but inhumane. Something has to be done about the inequities in our prison system. His punishment certainly does not fit his supposed crime. When is his mistreatment and that of his family going to end?

Posted by colorderosa on June 22, 2007 at 9:13 a.m. (Suggest removal)

Only in America does a convicted murderer, chlld rapist, or other harden criminal walk free, while a supposed drug dealer gets life in prison.
colorderosa

Posted by sosiouxme13 on June 22, 2007 at 8:47 p.m. (Suggest removal)

In my opinion, someone convicted of dealing drugs, can be likened to a murderer...

Posted by dannoynted1 on June 23, 2007 at 5:25 a.m. (Suggest removal)

This is retaliation for the "scared status quo". They are afraid if he is in Texas he just might get out.

Only in Texas can this happen.

Eureka~ perhaps Jurisdiction resides in Oklahoma?

or is it Louisiana, where i hear Hayden Head is sending our Federally convicted non white americans as of late?.

Is that legal?
Why would you send a texan to another state unless you want to keep them from their family.

Posted by gmikedear1954 on June 23, 2007 at 3:44 p.m. (Suggest removal)

As a career Federal Agent living in Detroit, Michigan, I find it silly to deny this man the opportunity of being close to his family. As one person stated earlier that far worse criminals are given the option to be close to their family. Also, The whole war on drugs is nothing more than a farce to make contractors rich.

Posted by chuco11 on June 23, 2007 at 8:54 p.m. (Suggest removal)

Ram, you were the impetus for the movement that slowly is gaining speed. Maybe not in our lifetimes but down the road there will be Spanish spoken along with English in the schools, businesses and professional sports, to name a few, all across America not just Texas. "The Man" sees this and doesn't like it! But he can't stop the ineviteable. What was that old adage...."GOD grant me the serenity....... Irma, you are a model of a loving wife. All men should be this fortunate!

Friday, June 22, 2007

I. DID THE 13TH COURT OF APPEALS ERR: The Texas Fair Defense Act Here is a Perfect Chance to Show Your Teeth

1. Appellant demands this appeal be abated and this court direct Appellant’s Attorney to represent her.

2. Appellant request legal representation as her request to oral argument is forbidden without it.

3. Appellant apologizes for any error committed as a Pro Se Defendant (Layperson) and for any reversible error committed; to be informed and given the opportunity to correct the error. Appellant at this late hour realizes she never signed the PDR she submitted and moves to correct at the Court’s discretion.

4. Appellant has had ineffective assistance of council. Jill Williams still represents appellant because she has never ask the courts permission in writing or in open court to withdraw. (List crucial periods without representation like when the state originally confessed) (error during the period immediately following submission to the clerk of the 13^th COA until the Court began to consider it.) (See Letter from Attorney)

5. Appellant request this court order a TWC investigation into this “comedy of errors”, “confession of errors” and “peculiar circumstances”. In the Alternative it is requested that all TWC subject matter be forwarded to the appropriate entities, The Governor of Texas, the Attorney General of the State of Texas and the Texas Workforce Executive Staff.

6. Appellant request this court order both administrative and criminal hearings to assist fact finders in the imminent TWC investigation. See attached TWC letter dated June 20, 2007.

7. Appellant invites TWC to submit a friend of the court letter.

8. Appellant request this court engage the TWC and conduct a hearing on this matter before ruling on the motion for rehearing

9. The 13^th Court of Appeals erred by excluding statements made on the (MFNT) record. The State did file a reply brief. This demonstrates that the court has not made its decision based on a whole record.

10. The Failure of the State to file a reply brief is treated as a confession of error per Siverand v. State ¹. As grounds for this cause Appellant respectfully request this Court take Judicial notice based on intervening Supreme Court precedent per Saldano v. Texas, 530 U.S. 1212 (2000) ² and grant this petition for discretionary review, vacate the judgment and remand the case for further consideration in light of developments during the pendency of this appeal. Specifically, it is requested this Court require such further proceedings (remand to trial court for the State to correct the error and file its reply) to be had as may be just under the circumstances.

11. The 13^th COA erred in it’s ruling, “any opposing arguments are limited to those advanced by the State in the trial court”.

12. Appellant relies on the complete appellate record.

13. The 13^th Court of Appeals made arguments on behalf of the state by technically censoring actual confessions of error in the Hearing on the Motion For New Trial. The confessions by the state are muted under the confession of error per Siverand Limiting the appellate record on behalf of the state to the trial court setting. Limiting the appellate record on behalf of the state to the trial court setting, the state’s side of the record that has vanished, when appellant relied on crucial testimony in the MFNT Hearing.

14. The 6th Amendment not a waivable right. It stands independent of ineffective assistance of counsel? The State needs to legitimize how State employee can be under subpoena as a witness for the State’s Adversary in a criminal proceeding and the state cannot compel her to appear. Then not file a reply brief in effect quashing the first opinion and censoring the confessions of error committed by the State during the Motion For New Trial.

15. The Failure of the State to file a reply brief is treated as a confession of error ¹; in this case the States Confession of Error is a "fundamental error" requiring correction. Although this court “may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review” it may also remand for further consideration in light of the confession of error ³. From the beginning this case has presented a comedy of errors and in particular some very peculiar circumstances. The States failure to file a reply brief deprives the appellant of crucial statements made by the State ² (by limiting any opposing arguments to those advanced by the State in the trial court. Id). It is this appellant’s belief the error is a tactical approach to disenfranchise Appellant of her right to fully supplement the record in her motion for new trial. Benefit from committing an error or committing an error so as to benefit from. Sounds like a Texas criminal style legislation to me

16. The decision of the Appellate court conflicts with the Texas Rules of Appellate Procedure 38.1(h) and 38.2(a)(1) ⁴ and Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) ⁵. The Appellate Court unequivocally has advanced arguments on behalf of the state. Not only have arguments been made on behalf of the state there are arguments made by the Appellate Court that are completely inaccurate: The 13th COA makes the statement “The record reflects that counsel exercised his ten peremptory strikes and, therefore, did not have an available strike for Ruff”. (Vol. 2 RR p,3 @3-6) (Vol. 1RR p.114). Is this court reading the same court record that this Appellant possesses? Appellant challenges the record furnished to the Appellant court as the record clearly reflects in direct contradiction of the 13^th Court of Appeals record. There were available strikes, Appellant’s Counsel exercised ZERO peremptory strikes. This shows there could be other mistakes or misreadings. Justice in this case requires that the Appellate Court did not understand the facts of the case well enough to properly and justiciably make a decision. The Confession of error by the State and blatant errors committed while reviewing the record as a whole in the appellate court. There is too much error and all of it is harmful. Appellant waives no error known and unknown.

17. The decision of the Appellate court contradicts itself with respect to its decision in Siverand.

18. Limiting the states record advances arguments on behalf of the state

19. The 13^th Court of Appeals relies on an incomplete record and has quoted the record inaccurately. This means either the record is either incomplete, inaccurate or the Independent Jurist did not take their duty seriously. The timing is highly suspicious being that two of the three Jurists were involved in campaigning, political maneuvering, schmoozing and networking and concentrating on their JOB.

20. Procedural Posture is faulty in light of confession of errors once the state confesses errors the errors need to be corrected.

21. The decision of the Appellate court contradicts itself with respect to Saldano v. Texas, 530 U.S. 1212 (2000) ². In light of the confession of error the case should be “remanded for further consideration in light of the confession of error”.

22. The verdict in said cause is contrary to the law and the evidence and there is newly discovered evidence touching the issues involved in said cause. Below is the controlling administrative law. This makes the entry Legal and TRUE. This is a WIA, TWC And Texas Department of Human Services directive per Standard Operating Procedure.

TEXAS WORKFORCE APPEALS POLICY AND PRECEDENT MANUAL

TOTAL AND PARTIAL UNEMPLOYMENT

_{TPU 105.00

TPU 105.00 CONTRACT OBLIGATION.}_{INCLUDES CASES IN WHICH THE CLAIMANT'S CONTRACTS OR AGREEMENTS HAVE AN EFFECT ON DETERMINING HIS UNEMPLOYMENT STATUS.

Appeal No. 82-4799-10-0782. Substitute teachers may have reasonable assurance of continued employment within the meaning of
Section 3(f) (now codified as}_{Section 207.041}_{) of the Act. In determining}_{whether such}_{reasonable assurance}_{exists with regard to}_{substitute teachers, the following criteria should be utilized: The school district must furnish to the Commission written statements which provide facts that the substitute teacher has been asked to continue in the same capacity for the following academic year. Simply placing the substitute teacher on a list for the following year does not establish reasonable assurance. It must be shown that both parties expect the relationship to resume at the beginning of the following year. The assurance must also be based on past experience with regard to the number of substitutes needed in the past.}

23. The trial of the above cause was not had before, nor was the verdict therein rendered by "an impartial jury."

24. Appellant’s right to the Compulsory Process was and continues to be thwarted. Material Witness Mary Cano never appeared to any of the proceedings in which Defendant’s / Appellant’s Counsel subpoenaed her. A subpoena was issued for Mary Cano directing her to appear before the same court proceeding (MFNT) in which the State claims it can get her there if she is needed. The State admits knowledge of Mary Cano’s whereabouts and goes on to boast of her being easy to find; yet whether willfully or inadvertently LeeAnn Haley’s 6^th Amendment right to Compulsory Process was violated.

¹_. ”_{When confronted with this situation, we treat the State's failure to file a brief as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.)."}

²_{Certiorari Granted—Vacated and Remanded}

_{No. 99–8119. Saldano v. Texas. Ct. Crim. App. Tex. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari}

_{granted, judgment vacated, and case remanded for further consideration in light of the confession of error}

1. ”When confronted with this situation, we treat the State's failure to file a brief as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.)."
2 Certiorari Granted—Vacated and Remanded
No. 99–8119. Saldano v. Texas. Ct. Crim. App. Tex. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari
granted, judgment vacated, and case remanded for further consideration in light of the confession of error

3 Pursuant to Siverand, we will make an independent examination of the merits of appellant's points of error and any opposing arguments are limited to those advanced by the State in the trial court. Id.
4 The rules of appellate procedure require the parties to advance their own arguments. Tex. R. App. P. 38.1(h) and 38.2(a)(1).
5 Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) Finally, decisional authority prevents us from advancing arguments on behalf of either party.

WHEREFORE, Petitioner prays that the court will:

1. Abate the Appeal, order a hearing to conduct a TWC administrative investigation and hold a hearing to conduct a Criminal Investigation and appoint counsel.

2. Remand this case for a new trial, or

3. Grant Appellant’s Motion for Rehearing.

4. Grant Appellants Motion for Rehearing, vacate the 13th COA opinion and remand for New trial and court appointed counsel.

5. Grant Appellants Motion for Extension of Time to File a Motion for Rehearing before ruling.

Respectfully submitted,

Monday, May 28, 2007

So, if you're mad get mad, don't hold it all inside,

"I'll stand by you"

Greatest Hits
(center text)

Oh, why you look so sad? Tears are in your eyes
Come on and come to me now.
Don't be ashamed to cry, let me see you through
Cause I've seen the dark side too.
When the night falls on you, you don't know what to do,
Nothing you confess could make me love you less
I'll stand by you, I'll stand by you, won't let nobody hurt you,
I'll stand by you.
So, if you're mad get mad, don't hold it all inside,
Come on and talk to me now.
And hey, what you got to hide? I get angry too
But I'm alot like you.
When you're standing at the crossroads, don't know which path to choose,
Let me come along, cause even if your wrong
I'll stand by you, I'll stand by you, won't let nobody hurt you,
I'll stand by you.
Take me into your darkest hour, and I'll never desert you.
I'll stand by you.
And when, when the night falls on you baby, you're feeling all alone,
You won't be on your own, I'll stand by you. I'll stand by you
I'll stand by you, won't let nobody hurt you. I'll stand by you
Take me in into your darkest hour and I'll never desert you

To My Babe's

t' lana

leeAnna manna fanna fee fi foe fanna leeAnna fo fanna watt my momma used to sing to me....... and the carpenters "on top of the world" luv u mother!
Contributors

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* I'm taking over so watch me shine..........
* Cause all the dreams you never thought you'd lose
* This I pray

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Monday, May 28, 2007
I was/She's just sixteen years old/

http://sacredheart-dannoynted1.blogspot.com/2006/06/watch-it-and-see.html

She comes down from Yellow Mountain
On a dark flat land she rides
On a pony she named Wildfire
With a whirlwind by her side
On a cold Nebraska night

Oh, they say she died one winter
When there came a killing frost
And the pony she named Wildfire
Busted down his stall
In a blizzard he was lost

She ran calling Wildfire
She ran calling Wildfire
She ran calling Wildfire

By the dark of the moon I planted
But there came an early snow
There's been a hoot owl howlin' by my window now
For six nights in a row
She's coming for me I know
And on Wildfire we're both gonna go

We'll be riding Wildfire
She ran calling Wildfire
She ran calling Wildfire

On Wildfire we're going to ride her
We're gonna leave sod bustin' behind
Get these hard times right on out of our minds
Riding Wildfire

She's just sixteen years old
Leave her alone, they say
Separated by fools
Who don't know what love is yet
But I want you to know
ab
If I could fly
I'd pick you up
I'd take you into the night
And show you a love
Like you've never seen, ever seen

It's like having a dream
Where nobody has a heart
It's like having it all
And watching it fall apart
And I would wait till the end
Of time for you
And do it again, it's true
I can't measure my love
There's nothing to compare it to
But I want you to know

If I could fly
I'd pick you up
I'd take you into the night
And show you a love
Oooooh, if I could fly
I'd pick you up
I'd take you into the night
And show you a love
Like you've never seen, ever seen
Yeah, Ooooooh....

Labels: Babe, CCISD, She called us all the same, she called us Babe.

posted by dannoynted1 | 2:27 AM
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Sunday, April 08, 2007

Even though I walk through the valley of the shadow of death

Psalm 23 (New International Version)
New International Version (NIV)

Copyright © 1973, 1978, 1984 by International Bible Society
[NIV at IBS] [International Bible Society] [NIV at Zondervan] [Zondervan]

Psalm 23
A psalm of David.
1 The LORD is my shepherd, I shall not be in want.

2 He makes me lie down in green pastures,
he leads me beside quiet waters,

3 he restores my soul.
He guides me in paths of righteousness
for his name's sake.

4 Even though I walk
through the valley of the shadow of death, [a]
I will fear no evil,
for you are with me;
your rod and your staff,
they comfort me.

5 You prepare a table before me
in the presence of my enemies.
You anoint my head with oil;
my cup overflows.

6 Surely goodness and love will follow me
all the days of my life,
and I will dwell in the house of the LORD
forever.

Footnotes:

Sunday, June 04, 2006

CITY OF CORPUS CHRIST IS SCARED OF A SHARK SCULPTURE?

COULD THIS BE a TOPIC for city council
executive session during public times to comment?
--------------------------------------------------------------------------------

NUMBER 13-03-428-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARY COLLINS, THOMAS MURPHY,

ROBERT POLANCO, MARK WAGNER,

JOHN CAMPBELL AND WELDON

WALKER, Appellants,

v.

CITY OF CORPUS CHRISTI, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

O P I N I O N

Before Justices Yañez, Rodriguez, and Garza

Opinion by Justice Yañez

Appellants[1] appeal a summary judgment granted in favor of appellee, the City of Corpus Christi (Athe City@). By two issues, appellants contend the trial court erred in granting summary judgment based on the City=s affirmative defenses of collateral estoppel and res judicata because neither doctrine is applicable. We affirm.

I. Background

Appellants are present or former members of the City=s Fire Department. On January 21, 2000, appellants filed a class action in state court in Nueces County, Texas.[2] Appellants sought overtime pay and other remedies for work in excess of forty hours per week under the Fair Labor Standards Act (AFLSA@),[3] the Texas Local Government Code,[4] and the firefighters= Collective Bargaining Agreement (Athe Agreement@) with the City. On February 17, 2000, the suit was removed to federal court.[5]

A. Prior Federal Suit

On September 15, 2000, the City filed a motion for summary judgment in the federal suit, contending that (1) pursuant to the partial exemption in section 207(k) of the FLSA,[6] the City is not obligated to pay overtime to its fire protection employees until they have worked over 204 hours in a 27-day work cycle; (2) the Agreement does not require the City to pay overtime for hours worked over forty hours per week; and (3) section 142.0015 of the local government code does not require the City to pay overtime for hours worked over forty hours per week because the provisions of the Agreement prevail over the statute. As evidence, the City attached to its motion (1) two Agreements between the City and the firefighters= association, one dated August 1996 through July 1997, and a second, dated August 1997 through July 2000; (2) a copy of section 553.230 of the code of federal regulations; and (3) the expert report of Raymond D. Cordelli, stating that the City is not required to pay overtime to firefighters for hours worked over forty hours per week under the FLSA, the Agreements, or the local government code.

On October 5, 2000, appellants filed their response to the City=s motion. In their response, appellants argued that the City failed to establish that it had adopted the 207(k) FLSA exemption. The response also asserted that (1) the City did not consider all Aadd-ins@ in calculating the plaintiffs= Aregular@ pay rate, which adversely affected the calculation of an overtime pay rate; (2) the method of calculating pay under the 1997 Agreement resulted in an average underpayment to firefighters of eight hours per year; (3) the City owed firefighters for sixty hours worked per year (number of hours worked over the maximum under the FLSA); and (4) the City Aillegally dock[ed]@ twelve hours of overtime pay during a 27-day pay period based on an individual=s regular rate of pay. In support of their response, appellants attached as evidence (1) the affidavit of Earl Davis, stating he (a) is a firefighter for the City, (b) has reviewed two years of his pay stubs, and (c) has been underpaid for overtime hours worked because the overtime pay rate did not include Aadd-ins;@ and (2) copies of Davis=s pay stubs.

On October 13, 2000, appellants filed a motion for summary judgment in federal court, asserting the same arguments that they included in their October 5, 2000 response.[7] The evidence attached to appellants= motion is the same as the evidence attached to their response: Earl Davis=s affidavit and pay stubs.

On November 17, 2000, appellants filed their First Amended Complaint and Request for Declaratory Judgment in the federal suit, in which they complained that the City (1) violated the FLSA and local government code by failing to pay the proper overtime rate for overtime hours worked and failing to include all Aadd-ins@ in calculating the regular hourly rate, (2) violated federal regulations and the local government code by contracting for a fifty-four hour work week, and (3) owed them compensation for eight hours worked per year over the number of hours required under the Agreement and owed them compensation for sixty hours per year over the maximum allowed under the FLSA. On November 26, 2000, the federal judge struck appellants= amended complaint because the deadline for amended pleadings had expired and appellants did not seek leave to amend their complaint.

Several days later, on November 29, 2000, the federal court issued an order denying appellants= motion for summary judgment and granting the City=s motion for summary judgment.[8] The order stated, in pertinent part:

Plaintiffs claim the City violates the compensation requirements of the Fair Labor Standards Act (AFLSA@), 29 USC '' 201-219, the Texas Local Government Code '' 142.001-142.011, and the collective bargaining agreements, by refusing to pay them for the hours worked in excess of 40 hours per week. (Plaintiffs= Motion at 3-5). Additionally, Plaintiffs claim they are not properly compensated for overtime in a 27 day work cycle. (Plaintiffs= Motion at 2-3). Third, Plaintiffs claim the defined regular workweek under Article IV of the collective bargaining agreements violates the FLSA. (Plaintiffs= Motion at 3). Fourth, Plaintiffs allege the City fails to properly calculate their regular rate for purposes of overtime compensation by not incorporating certain Aadd-ins@ or incentive pay into the calculation of the regular rate. (Plaintiffs= Motion at 1-2). Finally, Plaintiffs claim they do not receive regular pay for approximately eight hours a year. (Plaintiffs= Motion at 2).

. . . .

. . . [I]f the City meets the requirements of a section 7(k) exemption, it is not required to pay overtime until an employee involved in fire protection activities works in excess of 204 hours during a twenty-seven day period, regardless of whether the employee works more than 40 hours in any particular seven day week.

. . . .

. . . [N]othing in the language of section 7(k) requires the City to declare that it has adopted section 7(k). . . . Since there is no dispute that the City has adopted a twenty-seven day work period, the City will be allowed to invoke the section 7(k) exemption. . . . Therefore, the City is not required to pay Plaintiffs overtime until they have worked in excess of 204 hours in a twenty-seven day work period.

B. Violation of Texas Local Government Code

Plaintiffs claim the Texas Local Government Code, ' 142.0015(f) and ' 142.0015(h), entitles them to overtime pay for time worked in excess of 40 hours. . . .

. . . .

Further, section 174.006 of the Texas Local Government Code specifically states, AA state or local civil service provision prevails over a collective bargaining contract under this chapter unless the collective bargaining contract specifically provides otherwise.@ (emphasis added). Tex. L. Gov. Code ' 174.006. Here, the collective bargaining agreements expressly state, ATo the extent that any of the provisions of the agreement[s] conflict with Chapter 143 or any other State Civil Service Statute, the provisions of the agreement[s] shall control and the applicability of such statutes are altered accordingly.@ (Exhibit 1 of City=s Motion at 90; Exhibit 2 of City=s Motion at 39). Therefore, the collective bargaining agreements prevail over section 142.0015. Since the collective bargaining agreements establish a 27 day work cycle with a yearly average of 54 hours per week, the Court finds that the agreements waived the right to a maximum 40 hour work week provided by ' 142.0015(f). . . .

Plaintiffs claim the City has violated the terms of the collective bargaining agreements by failing to pay overtime for work in excess of 40 hours a week. . . .

. . . [I]t is irrelevant whether Plaintiffs work over 40 hours in a seven day week because the defined work period for overtime compensation under the agreements is not seven days.

V. OVERTIME COMPENSATION IN A TWENTY SEVEN DAY WORK CYCLE

Alternatively, Plaintiffs allege the City does not properly pay overtime compensation for the 27 day work cycle adopted in the collective bargaining agreements. (Plaintiffs= Motion at 2). Since the City and the Corpus Christi Firefighters= Association agreed to a 27 day pay period, the FLSA requires overtime payment for work in excess of 204 hours during each work period. 29 C.F.R. ' 553.230(c). Plaintiffs claim they consistently work 216 hours in a 27 day period without properly receiving overtime compensation for the extra 12 hours.[9]

As support for this claim, Plaintiffs present the affidavit testimony of Mr. Earl Davis, a Corpus Christi firefighter. (Exhibit 1 to Response). Mr. Davis testifies that he does not receive proper regular and overtime compensation. (Exhibit 1 to Response at 1-2). Plaintiffs also submit the [pay stubs] of Mr. Davis from January 10, 1997 to December 24, 1998. (Exhibit 2 to Response).

After review of the evidence, the Court finds that neither the affidavit testimony nor the [pay stubs] create a genuine issue for trial. First, Mr. Davis is not a named plaintiff in the action; therefore, issues relating to his compensation are not relevant as to whether the plaintiffs receive proper compensation. Second, Mr. Davis= affidavit testimony does not make any assertion that he works in excess of 204 hours in a 27 day cycle. Therefore, his testimony does not support the claim. Third, the paystubbs fail to show that Mr. Davis works in excess of 204 hours in a 27 day cycle without receiving proper overtime compensation.

VI. ARTICLE IV OF COLLECTIVE BARGAINING AGREEMENTS

Plaintiffs claim Article IV of the collective bargaining agreements is illegal because it calls for a 54 hour workweek, whereas the FLSA establishes a maximum 53 hours for a seven day work period. . . . Here, the City has not established a seven day work period; it has adopted a 27 day work period. Article IV does not violate the FLSA merely because it includes a yearly average of 54 hours, so long as the City abides by the overtime compensation requirements of 29 C.F.R. ' 553.230(c) for a 27 day work period.

VII. CALCULATION AND COMPENSATION OF REGULAR RATE PAY

Plaintiffs assert several claims concerning the calculation and compensation of their regular rate pay. First, Plaintiffs claim the City fails to calculate their regular rate properly for purposes of determining overtime compensation by not including certain Aadd-ins@ into the calculation of the regular rate. (Plaintiffs= Motion at 1-2). The Aadd-ins@ the City allegedly fails to incorporate into the regular rate are: 1) longevity pay, 2) working out of classification pay, 3) uniform pay, 4) education incentive pay, 5) certification pay, 6) assignment pay, 7) and any other regularly scheduled pay. (Plaintiffs= Motion at 1-2). Second, Plaintiffs claim they do not receive regular rate pay for approximately eight hours a year. (Plaintiffs= Motion at 2). . . .

. . . .

While the Plaintiffs pleaded their overtime compensation claims sufficient to give Defendants notice of the claims, the Court finds the complaint fails to give Defendants fair notice of any claims relating to the Plaintiffs [sic] regular rate pay. The complaint fails to allege any facts relating to the use of Aadd-ins@ in the calculation of the regular rate or the eight hours of regular pay owed in a 364 day period. Since Plaintiffs did not plead these claims in their complaint, the Court will not consider them. . . .

B. Present Suit

On February 5, 2001, the same plaintiffs filed the present suit in the 94th District Court in Nueces County, Texas.[10] In their petition, appellants allege that the City (1) owes them compensation for eight hours more per year than they receive under the Agreement, (2) owes them compensation for sixty hours per year pursuant to the maximum hours allowed under section 142.0015(b) of the local government code, (3) Aillegally docks@ them for straight time, and (4) has not properly credited appellants= personal leave, vacation leave, and sick leave accounts. Appellants= Astatement of issues@[11] also identifies issues that appellants intend to raise: (1) the City does not include all Aadd-ins@ in calculating the regular rate, including education pay; (2) the City does not include all Aadd-ins@ in calculating the regular rate for compensation time purposes; (3) the City owes them compensation for eight more hours than they receive under the Agreement; (4) the City improperly docks overtime at a regular rate, resulting in under-compensation to employees not missing a work day for a year; the City owes them overtime under section 142.0015(b) of the local government code; (5) the City does not pay Adrag-up@ pay to retiring firefighters;

(6) appellant Polanco was Ashorted@ ten hours of vacation time and ten hours of sick leave time when the City converted to a new computer system in 1999; and (7) the City has failed to properly maintain wage and hour records as required by the FLSA.

On December 11, 2002, the City filed a motion for summary judgment, contending that appellants= claims are barred under the principles of res judicata and collateral estoppel, based on the judgment rendered in federal court on November 29, 2000. In its motion, the City contends that appellants= claims in the present suit are barred because the claims (1) are identical to those previously alleged by appellants in federal court, or (2) could have been raised in the federal suit because they arise out of the same facts. As evidence, the City attached (1) appellants= original state court petition (cause no. 00-363-H); (2) the final judgment granted in federal court; (3) the Fifth Circuit judgment affirming the federal court judgment; (4) the federal court order granting the City=s motion for summary judgment and denying the appellants= motion for summary judgment; (5) the affidavit of Peter Merkl, Assistant City Attorney for the City, with copies of (a) the City=s answer in the federal court suit, (b) the City=s motion for summary judgment in the federal court suit, (c) appellants= motion for summary judgment in the federal court suit, and (d) the Fifth Circuit decision affirming the federal court judgment that the City has not violated the FLSA or the Texas Local Government Code; and (6) the affidavit of Alberto J. Peña, counsel for the City, with attached copies of (a) appellants= original petition in the present case and (b) appellants= statement of the issues in the present case.

On February 20, 2003, appellants filed their response to the City=s motion for summary judgment. In their response, appellants argue that the City=s res judicata and collateral estoppel arguments were aimed solely at the issue of whether the Agreement supercedes the provisions of the local government code. Although appellants generally asserted that A[n]one of the issues set out in [appellants=] Statement of Issues have been previously litigated in any forum,@ they did not specifically address any of the elements of the City=s asserted defenses of res judicata or collateral estoppel. Following a hearing, the trial court granted partial summary judgment in the City=s favor on March 6, 2003, based on res judicata, on all issues except appellants= claim that not all Aadd-ins@ are considered in the calculation of the regular rate of pay.[12]

On April 17, 2003, the City filed a second motion for summary judgment, in which it argued that appellants= Aregular rate of pay@ claims are also barred by res judicata and collateral estoppel because those claims could have been raised in the prior federal suit. As evidence, the City attached the same evidence that it attached to its first motion, plus the following: (1) a supplemental affidavit of Peter Merkl, describing letters from appellants= counsel (dated February 20, 2000 and April 10, 2000) outlining issues raised in the federal lawsuit, including claims that the City does not include Aadd-ins@ in calculating the overtime rate; (2) the two letters from appellants= counsel submitted in the federal suit; (3) the scheduling order in the federal suit; (4) a general order dated April 11, 2000 in the federal suit; (5) a copy of appellants= first amended complaint and request for declaratory judgment in the federal suit, dated November 17, 2000 (which includes a claim that the City does not include all Aadd-ins@ in calculating the regular rate); and (6) a copy of the order striking appellants= amended complaint in the federal suit because the deadline for filing amended pleadings expired June 30, 2000.

On May 13, 2003, appellants filed a response to the City=s second motion for summary judgment. Attached to appellants= response is the affidavit of their counsel, Kim Cox. In the affidavit, Ms. Cox states that appellants were unable to verify facts regarding the City=s failure to include certain Aadd-ins@ in calculating the regular rate until after the deadline for amending pleadings in the federal suit. Appellants= response argues that the Asole issue left in this case is what amounts should be added into the calculation of overtime pay,@ and that res judicata and collateral estoppel do not apply because the issue was not dealt with in the prior federal case.

On May 20, 2003, the City filed a reply to appellants= response, in which it argued that even though appellants= Aadd-ins@ claims were not addressed in the federal lawsuit, they were nonetheless barred because res judicata bars all claims that were or could have been raised in a prior lawsuit. The City further argued that under the Atransactional test@ for determining whether two complaints involve the same cause of action (for purposes of res judicata), the appellants= Aadd-ins@ claims are grounded in the same operative factsB the City=s allegedly improper payroll practices and method of calculating overtimeB as the claims asserted in the prior federal lawsuit. On May 29, 2003, the trial court issued an order granting the City=s second motion for summary judgment and ordering that appellants take nothing. This appeal ensued.

II. Standard of Review

In their second issue, appellants contend the trial court erred in granting summary judgment on the basis of res judicata. Summary judgment for a defendant is proper when the summary judgment evidence negates an essential element of the plaintiff's cause of action as a matter of law or establishes all the elements of an affirmative defense as a matter of law.[13] When reviewing a summary judgment, we take as true all evidence favorable to the non‑movant and indulge every reasonable inference in the non‑movant's favor.[14] When there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was rendered,[15] an appellant must negate all grounds on appeal.[16] If the appellant fails to negate each ground on which the judgment may have been rendered, we must uphold the summary judgment.[17]

Summary judgment is proper in a case barred by res judicata.[18] To obtain that relief, the City, as movant, had to establish all elements of the affirmative defense of res judicata as a matter of law.[19]

Any issue which the non-movant claims would justify denying summary judgment must be included in the response.[20] An appellate court cannot reverse a summary judgment based on an issue not presented to the trial court.[21]

III. Applicable Law

Where, as here, the original judgment was entered in a federal proceeding, federal law controls whether the principles of res judicata will bar a later state court proceeding.[22] Res judicata bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.[23] Under federal law, four elements are necessary to establish res judicata, or claim preclusion: (1) the parties are identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded to a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions.[24]

Under res judicata as applied by federal courts, a final judgment on the merits is transactional in nature and thus precludes parties from relitigating issues that were or could have been decided in the prior action.[25] Thus, the critical issue is whether the two actions under consideration are based on the same nucleus of operative facts.[26] In this inquiry, we look to the factual predicate of the claims asserted, not the legal theories upon which the plaintiff relies.[27]

IV. Analysis

The City argues that in appellants= response to the City=s first summary judgment motion, they failed to raise any issue concerning the Atransactional test@ for determining whether their federal suit and the present suit involved the same cause of action, and by failing to do so, waived this issue with regard to all of their asserted causes of action except the Aregular rate of pay@ issue.

Although appellants argue in their brief that Athis entire appeal comes down to whether the issues being raised in the present case arose out of the same >nucleus of operative facts= as the issues that were raised in the prior federal court case,@ they did not raise this issue in their response to the City=s first summary judgment. In its first motion for summary judgment, the City specifically argued that the present suit is based on the Asame nucleus of operative facts@ as the prior federal suit. In their response, appellants only generally asserted that A[n]one of these issues were involved in the previous litigation in federal court,@ but did not raise an issue regarding the Atransactional test@ for determining whether the causes of action were the same for res judicata purposes.[28]

It is unnecessary, however, for us to address the City=s waiver argument because we conclude that the City=s summary judgment evidence established all of the elements of its affirmative defense of res judicata.[29] Appellants do not generally dispute that (1) the parties in the present suit are identical to the parties in the prior federal litigation and (2) that the judgment issued by the federal court was rendered by a court of competent jurisdiction.[30] They do, however, dispute that the federal court rendered a final judgment on the merits of their claims and that the same claims or causes of action were involved in both actions.[31] The federal court judgment specifically stated that it did not consider appellants= Aregular rate of pay@ claims; the federal court did, however, reach a final judgment on the merits as to appellants= remaining claims.[32] We also conclude that the remainder of appellants= claims in the present case all involve the Asame nucleus of operative facts@ as the claims asserted in the prior federal litigation.[33] All of appellants= claims (unpaid compensation for more hours worked than paid under the Agreement, unpaid overtime under the local government code, illegal Adocking,@ and uncredited leave) involve the City=s methodology and practices concerning determining appellants= hours worked, straight time pay, overtime pay, and overtime hours. Accordingly, we hold that the trial court did not err in granting the City=s first motion for summary judgment on the basis of res judicata.

In its second motion for summary judgment, the City argued that appellants= Aregular rate of pay@ claims were also barred by res judicata. As noted above, although the federal court struck their pleadings as untimely, appellants actually raised claims that the City failed to include all Aadd-ins@ in calculating the regular rate of pay in their First Amended Complaint in the federal litigation. Under res judicata as applied by federal courts, a final judgment on the merits is transactional in nature and thus precludes parties from relitigating issues that were or could have been decided in the prior action.[34] The Fifth Circuit has held that Atheories which were the subject of an untimely motion to amend, filed in the earlier action, >could have been brought= [in the earlier action].@[35] Here, appellants= claims concerning the City=s alleged failure to include all Aadd-ins@ in calculating the regular rate of pay Acould have been brought@ in the earlier federal suit because the claims were the subject of an untimely motion to amend.[36] Therefore, we conclude that the trial court did not err in granting the City=s second motion for summary judgment on the basis of res judicata.

We overrule appellants= second issue. Because we conclude that the trial court properly granted summary judgment in favor of the City on the basis of res judicata, we need not address appellants= first issue.[37]

The trial court=s final judgment granting judgment in favor of the City is AFFIRMED.

LINDA REYNA YAÑEZ,

Justice

Opinion delivered and filed

this the 30th day of March, 2006.

--------------------------------------------------------------------------------

[1] Appellants are Mary Collins, Thomas Murphy, Robert Polanco, Mark Wagner, John Campbell, and the estate of Weldon Walker.

[2] The lawsuit, Cause No. 00-363-H, styled Mary Collins, Thomas Murphy, Robert Polanco, Mark Wagner, John Campbell and Weldon Walker v. City of Corpus Christi, was filed in the 347th district court in Nueces County, Texas.

[3] See 29 U.S.C.S. ' 207 (2006).

[4] See Tex. Loc. Gov=t Code Ann. ' 142.0015 (Vernon 1999).

[5] The case was docketed as Civil Action No. C-00-066 in the United States District Court for the Southern District of Texas, Corpus Christi Division.

[6] See 29 U.S.C.S. ' 207(k) (2006); 29 C.F.R. 553.230 (2006).

[7] Appellants= response includes the argument that the City failed to establish that it adopted the 207(k) exemption. Although this argument is omitted from appellants= motion for summary judgment, in all other respects, appellants= motion is identical to their response.

[8] The Fifth Circuit affirmed the federal court=s judgment on October 26, 2001.

[9] Further in their motion, Plaintiffs actually acknowledge they do receive overtime compensation for the 12 hours but allege it is illegally docked an amount equal to the regular rate. (Plaintiffs= Motion at 2-3). While Plaintiffs plead this claim inconsistently, the Court will treat it as a claim for overtime compensation. (footnote in original).

[10] Trial court cause number 01-646-C, styled Mary Collins, Thomas Murphy, Robert Polanco, Mary Wagner, John Campbell, and Weldon Walker v. City of Corpus Christi.

[11] Appellants= AStatement of the Issues@ is attached to the affidavit of the City=s trial counsel and is included in the City=s summary judgment evidence. The affidavit notes that the parties agreed, pursuant to a Rule 11 agreement, to exchange statements of issues in lieu of contention interrogatories.

[12] As noted, the federal court order did not consider appellants= claims regarding the use of Aadd-ins@ in the calculation of the regular pay rate because appellants= complaint failed to allege any facts regarding this claim.

[13] See Am.Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).

[14] Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).

[15] Here, the trial court=s March 6, 2003 order granting partial summary judgment stated it was granted on the basis of res judicata. The trial court=s May 29, 2003 order granting final judgment did not state the basis on which it was granted.

[16] State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d 374, 381 (Tex. 1993).

[17] Id.

[18] Ford v. City State Bank of Palacios, 44 S.W.3d 121, 131 (Tex. App.BCorpus Christi 2001, no pet.).

[19] See Grinnell, 951 S.W.2d at 425.

[20] Stewart v. Tex. Lottery Comm=n, 975 S.W.2d 732, 735 (Tex. App.BCorpus Christi 1998, no pet.).

[21] Id.

[22] Geary v. Tex. Commerce Bank, 967 S.W.2d 836, 837 (Tex. 1998).

[23] In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999).

[24] Id.

[25] Ellis v. Amex Life Ins. Co., 211 F.3d 935, 938 (5th Cir. 2000); Farias v. Bexar County Bd. of Trustees, 856 S.W.2d 218, 223 (Tex. App.BSan Antonio 1993, writ denied).

[26] Ellis, 211 F.3d at 938; Southmark Props. v. Charles House Corp., 742 F.2d 862, 870‑71 (5th Cir. 1984).

[27] Eubanks v. Fed. Deposit Ins. Corp., 977 F.2d 166, 171 (5th Cir. 1992).

[28] See Stewart, 975 S.W.2d at 735 (AAn appellate court cannot reverse a summary judgment based on an issue not presented to the trial court.@); see also Vela v. City of McAllen, 894 S.W.2d 836, 838 (Tex. App.BCorpus Christi 1995, no writ) (AIssues not expressly presented to the trial court may not be considered on appeal as grounds for reversal of a summary judgment.@).

[29] See Tex. R. App. P. 47.1; Grinnell, 951 S.W.2d at 425; In re Southmark, 163 F.3d at 934.

[30] In re Southmark, 163 F.3d at 934.

[31] See id.

[32] See id.

[33] See id.

[34] Ellis, 211 F.3d at 938 (emphasis added).

[35] Nilsen v. Moss Point, 701 F.2d 556, 563 (5th Cir. 1983).

[36] See id.

[37] See Tex. R. App. P. 47.1.

Thursday, February 02, 2006

Stop the Padre Island Beach Blockade

and the bulldozing of the national seashore.