S. Wilt v. Texas Department of Public Safety

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00147-CV

______________________________

S. WILT, Appellant

 

V.

 

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

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On Appeal from the County Court at Law

Hunt County, Texas

Trial Court No. CC0200337

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            The Texas Department of Public Safety (the Department) denied Steve Scott Wilt's application for renewal of his concealed handgun permit because he had recently been convicted of three Class A and B misdemeanor offenses. See Tex. Gov't Code Ann. § 411.172(a)(8) (Vernon Supp. 2004). Wilt appealed the Department's decision to a Hunt County Justice Court. See Tex. Gov't Code Ann. § 411.180 (Vernon Supp. 2004). The Justice Court found the evidence supported the Department's decision and affirmed the denial of the renewal permit. Wilt further appealed to the County Court at Law of Hunt County, which after a bench trial de novo affirmed the denial of the permit renewal. Wilt now appeals to this Court, raising three points of error.

            Wilt first contends the trial court erred by sustaining the Department's plea to the jurisdiction. Second, Wilt argues the United States and Texas constitutional provisions concerning the right to keep and bear arms allow him to carry a concealed handgun. Third, Wilt contends the trial court erroneously based its decision on facts that were not admitted into evidence. We overrule all three points of error and affirm the trial court's judgment.

I. Plea to the Jurisdiction

            In his first point of error, Wilt contends the trial court erred by sustaining the Department's plea to the jurisdiction of the trial court, the County Court at Law. Before the trial, the Department filed a special plea claiming the trial court lacked jurisdiction. At trial, the Department withdrew its plea to the jurisdiction of the court and proceeded with a trial on the merits of Wilt's appeal. Accordingly, Wilt's first point of error is moot.

II. The Right to Bear Arms

            In his second point of error, Wilt contends the trial court's judgment infringes on his right under the United States and Texas Constitutions to keep and bear arms. See U.S. Const. amend. II; Tex. Const. art I, § 23.

            The federal courts have repeatedly upheld the authority of the federal Legislature to impose reasonable regulations and restrictions on gun ownership. See, e.g., United States v. Miller, 307 U.S. 174, 178 (1939) (No showing short-barrel shotgun necessary for militia; Congress may prohibit such weaponry); United States v. Wilks, 58 F.3d 1518 (10th Cir. 1995) (Congress may regulate machine gun ownership and sales occurring in interstate commerce). Similarly, states may impose reasonable regulations on gun ownership. See, e.g., Thomas v. Members of City Council, 730 F.2d 41 (1st Cir. 1984) (Second Amendment granted appellant no right to carry a concealed handgun).

            In Texas, "[a] permit to carry a concealed handgun, like other permits and licenses, is not a right but a privilege under regulations prescribed by the legislature." Tex. Dep't of Pub. Safety v. Tune, 977 S.W.2d 650, 653 (Tex. App.—Fort Worth 1998), pet. dism'd w.o.j., 23 S.W.3d 358 (Tex. 2000). The Texas Constitution expressly authorizes the Texas Legislature "to regulate the wearing of arms, with a view to prevent crime." Tex. Const. art. I, § 23. One such regulation forbids the Department from granting concealed handgun permits to those who have been convicted of a Class A or B misdemeanor, or to those who have been convicted of a felony. Tex. Gov't Code Ann. § 411.172(a)(8); see Tune, 977 S.W.2d at 653.

            In the case now before us, Wilt does not contend Texas' restrictions on the issuance of handgun permits are unreasonable or otherwise exceed the Constitution's regulatory authorization. Instead, Wilt argues that his "right to keep and bear arms even in a concealed manner should not be infringed upon because of the false charges and discrimination offered by [the junior college where Wilt was arrested for criminal trespass]." We see Wilt's point of error as more appropriately a challenge to the sufficiency of the evidence.

            In determining whether there is in the record evidence of probative force to support the fact-finder's verdict, we must (1) consider all of the evidence in the light most favorable to the party in whose favor the verdict has been rendered, and (2) apply every reasonable inference that could be made from the evidence in that party's favor. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In this review, we disregard all evidence and inferences to the contrary. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990). A no-evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998).

            The trial court upheld the Department's denial of Wilt's renewal application because Wilt had recently been convicted of three Class A and B misdemeanor offenses. The Department offered certified records of the judgments and sentences for Wilt's convictions for criminal trespass, evading arrest, and resisting arrest. Wilt did not object to the admission of these certified judgments. Wilt also tacitly admitted being convicted in the cases represented by these documents. Because those certified records show Wilt was convicted of three misdemeanors, occurring less than five years before Wilt's application for a concealed handgun permit, we find the evidence is sufficient to support the trial court's judgment in favor of the Department. See Tex. Gov't Code Ann. § 411.172(a)(8); Tex. Dep't of Public Safety v. LaFleur, 32 S.W.3d 911, 915–16 (Tex. App.—Texarkana 2000, no pet.). We overrule Wilt's second point of error.

III. Judgment Based on Facts not in Evidence

            In his final point of error, Wilt contends the trial court erroneously based its ruling on facts that were not admitted into evidence. In his brief to this Court, Wilt has not shown what facts the trial court erroneously considered. An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h); see also Haas v. George, 71 S.W.3d 904, 914 (Tex. App.—Texarkana 2002, no pet.) (nothing presented for review when the brief failed to explain how facts of the case relate to requirements of claim). Accordingly, Wilt has waived his final point of error.

IV. Conclusion

            For the reasons stated, we affirm the trial court's judgment.

 

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          June 29, 2004

Date Decided:             June 30, 2004

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00012-CV

                                                ______________________________

 

 

                                     MICHAEL KENNEDY, Appellant

 

                                                                V.

 

                          JAMES T. WORTHAM [SIC], ET AL., Appellees

 

 

                                                                                                  

 

 

                                         On Appeal from the 3rd Judicial District Court

                                                          Anderson County, Texas

                                                           Trial Court No. 3-41100

 

                                                                                                   

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                          Opinion by Justice Carter

                                                                   O P I N I O N

 

            In the district court of Anderson County, Michael Kennedy (Kennedy), a Texas prison inmate, filed a lawsuit against all three justices of the Texas Court of Appeals for the Twelfth Appellate District, all four district court judges in Anderson County, and William M. House, the counsel formerly appointed to represent him, alleging various discriminatory acts taken by the justices and judges, as well as the false and prejudicial actions taken by House in prosecuting one of Kennedy’s prior appeals.  The trial judge, the Honorable Deborah Oakes Evans, was a named party in the lawsuit. Acting on its own motion, the trial court dismissed the suit without a hearing, finding that the suit was frivolous or malicious and that Kennedy failed to satisfy the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.^[1]

            On appeal, Kennedy argues that the trial court erred in that Judge Evans could not preside over his case because, as a named defendant, she was disqualified to act.^[2]  We affirm the order of dismissal because we find Judge Evans did not have a direct personal or pecuniary interest in the case.

            In his petition, Kennedy specifically accused the justices and judges of discriminating against him by:  (1) allowing Danielle Simpson to dismiss his (Simpson’s) appeal and be executed, (2) wrongly dismissing a court action he filed, (3) refusing to allow him to represent himself, and (4) appointing “false counsel” to represent him.  He also accused House of filing “false, malice, prejudicial errors” in the course of Kennedy’s appeal, cause number 12-08-00246-CR. 

            On its own motion, under the provisions of Chapter 14 of the Texas Civil Practice and Remedies Code, the trial court dismissed Kennedy’s lawsuit^[3] without a hearing, finding that the suit was frivolous or malicious, that Kennedy failed to “state the civil cause of action[,]” and that he also failed to file an affidavit of indigency and statement of previous filings with his lawsuit.

            Judge Evans did not have a direct pecuniary or personal interest in the case

            Disqualification cannot be waived and can be raised at any time.  Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982).  As a general rule, a judge who is a party to a suit, even though he or she has not been served with process, may not preside over that case, decide any matters requiring judicial discretion, or approve the minutes of the court.  Hawpe v. Smith, 22 Tex. 410 (1858).  Article V, Section 11 of the Texas Constitution provides that no judge shall sit in any case wherein he or she may be interested.  See Tex. Const. art. V, § 11.  Likewise, Rule 18b(1) of the Texas Rules of Civil Procedure provides that the judges shall disqualify themselves in all proceedings in which they have an interest in the subject matter in controversy.  See Tex. R. Civ. P. 18b(1)(b).  The interest that disqualifies a judge is an interest, however small, which rests on a direct pecuniary or personal interest in the result of the case.  Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979) (per curiam).  If a judge is disqualified, the judge is without jurisdiction to hear the case, and therefore, any judgment rendered is void and a nullity.  Glaser, 632 S.W.2d at 148; Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556, 560 (Tex. App.––Beaumont 1993, writ denied); Lone Star Indus., Inc. v. Ater, 845 S.W.2d 334, 336 (Tex. App.––El Paso 1992, no writ).  However, under certain circumstances, a judge may preside over a case despite being named as a defendant.  See Cameron, 582 S.W.2d at 776; see also Hidalgo County Water Con. & Imp. Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex. App.––San Antonio 1962, writ ref’d).

            In Cameron, 582 S.W.2d at 776, an attorney sued the nine justices of the Supreme Court of Texas complaining of the supreme court’s order setting a special fee assessment against members of the state bar association.  The trial court dismissed the case, and the court of civil appeals affirmed.  Id. at 776.  Upon reaching the supreme court, the attorney argued that the justices were disqualified or required to recuse because they were all named as defendants in the suit.  Id. at 775–76.  The supreme court held that the members were not disqualified because they had no more direct or pecuniary interest in the case than any other member of the bar association.  Id. at 776.  Regarding disqualification, the court stated:

In applying the rule of disqualification, we should endeavor to follow the spirit and intent of the Constitutional rule.  The Constitution does not contemplate that judicial machinery shall stop.  If this is threatened, the doctrine of necessity will permit the judge to serve.  Boysen, 354 S.W.2d at 423.  Respondents are parties only because they are named as parties.  To hold that merely naming a judge as a party would disqualify him would put power in the hands of litigants to frustrate our judicial system.

 

Id.

            Here, the issue is whether Judge Evans had a direct pecuniary or personal interest in this case.  Kennedy’s petition did not seek money damages; therefore, Judge Evans has no pecuniary interest in this case.  Instead, Kennedy sought injunctive relief prohibiting “all judges from discriminating.”

            Judges in Texas are prohibited from discriminating by constitutional mandate.  “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.  This amendment is self-operative.”  Tex. Const. art. I, § 3a.   Additionally, the ethical code for Texas judges prohibits discrimination based upon “race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, . . . .”  Tex. Code Jud. Conduct, Canon 3(B)(6), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 2005).  A violation of that code could result in the judge or justice being censured, suspended, or ultimately removed from office.  Tex. Const. art. V, 1-a.  Even if Kennedy obtained a judgment prohibiting all judges, including Judge Evans, from discriminating, it would not add one additional burden or duty that Judge Evans does not already have imposed by law.

            Further, the facts of this case are similar to those of Cameron, in that Judge Evans’ personal interest in the outcome and subject of this case is no more than that of every other jurist in the State of Texas, as evidenced by the requirements of the Texas Constitution and the Code of Judicial Conduct.  Judge Evans did not have a direct interest in the case that would require her disqualification.  We overrule Kennedy’s point of error and affirm the trial court’s order of dismissal.

 

 

 

                                                                                    Jack Carter

                                                                                    Justice

 

Date Submitted:          May 14, 2010

Date Decided:             May 21, 2010

 

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^[1]The trial court also ordered Kennedy to pay court fees and costs in the amount of $229.00.

 

^[2]Kennedy does not contest the trial court’s findings that his pleadings failed to meet the requirements of Chapter 14 of the Texas Civil Practice and Remedies Code.

^[3]The trial court dismissed Kennedy’s lawsuit without prejudice.