IN THE
TENTH COURT OF APPEALS
No. 10-99-090-CR
No. 10-99-091-CR
No. 10-99-092-CR
No. 10-99-093-CR
No. 10-99-094-CR
     JAMES HARMON JAUBERT, JR.,
     AKA JAMES HARMON,
                                                                         Appellant
     v.
     THE STATE OF TEXAS,
                                                                         Appellee
From the 372nd District Court
Tarrant County, Texas
Trial Court No. 0548270D
Trial Court No. 0594393A
Trial Court No. 0594394A
Trial Court No. 0594396A
Trial Court No. 0594398A
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CONCURRING OPINION
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OVERVIEW
      This case presents yet another problem created by the transfer of cases from one court of appeals to another under the plan for docket equalization. We have now reached the point of substantively altering the procedural due process which a litigant would otherwise obtain. If this case had not been transferred, there is no reason to believe that the Fort Worth Court of Appeals would not have reviewed the merits of the issue presented, ineffective assistance of counsel. However, this court requires preservation of a claim of ineffective assistance of counsel. Because the issue was not preserved, we decline to review the merits of this appeal.
BACKGROUND
      It is a fundamental rule of appellate practice, with very few exceptions, that to complain about something a trial court did, you must have brought it to the attention of the trial court at a time and in a manner that the trial court understood the complaint and had the opportunity to correct it. See Lemons v. EMW Manufacturing, 747 S.W.2d 372, 373 (Tex. 1988); Voth v. Felderhoff, 768 S.W.2d 403, 412 (Tex. App.âFort Worth 1989, writ denied); Blue v. State, 983 S.W.2d 811, 812 (Tex. App.âHouston [1st] 1998, pet. granted). This rule is currently embodied in the rules of appellate procedure. Tex. R. App. P. 33.1(a). The exceptions to this rule in civil cases are few. Voth, 760 S.W.2d at 412 (fundamental error). Jurisdiction is the issue most often allowed to be raised for the first time on appeal. See id.
      However, in criminal cases there has traditionally been much greater latitude in issues that could be raised for the first time on appeal. There seems to be little justification for treating civil cases differently than criminal cases in terms of the need to preserve error at the trial court before it can be reviewed on appeal. See Johnson v. State, _____ S.W.2d _____, ____, No. 1915-98, slip op. at 18 (Tex. Crim. App. February 9, 2000, en banc). However, in criminal cases there are a variety of issues that have traditionally been allowed to be raised for the first time on appeal. One of these traditional areas has been claims of ineffective assistance of counsel.
GONZALEZ
      There are fourteen courts of appeals across Texas. Until we issued the Gonzalez decision not a single court had held that it was necessary to preserve a claim of ineffective assistance of counsel. Gonzalez v. State, 994 S.W.2d 369 (Tex. App.âWaco 1999, no pet.). We have continued to follow the analysis of Gonzalez and the Court of Criminal Appeals has granted a petition for discretionary review in Robinson v. State, No. 10-98-194-CR (Tex. App.âWaco August 25, 1999, pet. granted) (not designated for publication), a case disposed of entirely upon the basis of Gonzalez. Robinson v. State, No. 99-1701 (Tex. Crim. App. December 15, 1999) (order granting petition for discretionary review). We have also elaborated on our analysis and reasoning in subsequent cases. See Foster v. State, _____ S.W.3d _____, 1999 WL 1243847, (Tex. App.âWaco December 22, 1999, no pet.).
WHICH LAW CONTROLS?
      Notwithstanding our belief that Gonzalez and Foster are correct on the issue, they have not, as of yet, obtained universal acceptance. In particular, we have found no opinion from Fort Worth which follows Gonzalez or holds that ineffective assistance of counsel claims must be preserved before they can be presented on appeal. To the contrary, Fort Worth has continued to review ineffective assistance of counsel claims on the merits without discussing the preservation issue. Mallet v. State, ____ S.W.3d _____; 2000 WL 4984 (Tex. App.âFort Worth, January 6, 2000, no pet.); Wood v. State, 4 S.W.3d 85 (Tex. App.âFort Worth 1999, no pet.). The case currently before this Court was decided by a Tarrant County District Court. Appeal was taken to the Fort Worth Court of Appeals. By a transfer order from the Supreme Court for the purposes of docket equalization, it was transferred to this Court. The question is: Should we apply the law as we believe it should be across the State of Texas or should we apply the law in the manner we believe Fort Worth would apply it?
      Because I am bound by the principle of stare decisis, I must yield my individual opinion to the law as previously announced by this court on transfer cases. We will apply the law as we believe it should be across the state. McLendon v. Department of Public Safety, 985 S.W.2d 571, 576-77 n. 6 (Tex. App.âWaco 1998, pet. filed). In McLendon, under the banner of being non-parochial, this court held that it would apply the law as it saw it, regardless of what some other court of appeals (from where the case originated) had announced it to be. What could be more parochial? Nevertheless, that is the rule under which I must operate at this time, for this case, and until directed otherwise by the high courts of this State. Accordingly, I concur in the majority opinion.
                                                                   TOM GRAY
                                                                   Justice
Concurring opinion delivered and filed March 15, 2000
Publish
>Id. Mayer Brown countered that the lawyers and paralegal making the TPIA requests Âwere the law firmÂs agents acting with actual authority when they sent their respective TPIA requests, making the firm a Ârequestor with standing under the TPIA to seek mandamus relief. Id. at *7.
In affirming the trial courtÂs denial of the City of HoustonÂs plea, the Estrada court noted the following with regard to the law firmÂs Âasserted status as a Ârequestor as defined by the TPIAÂ:
In Concerned Community Involved Development, Inc. v. City of Houston, 209 S.W.3d 666, 673 (Tex. App.ÂHouston [14th Dist.] 2006, pet. denied), we addressed arguments that an entity seeking mandamus relief under the TPIA (1) failed to allege that it submitted a written request for information under the TPIA; (2) lacked standing because it was not a Ârequestor under the TPIA; and (3) could not obtain a writ of mandamus. We held that these issues went to the merits of the case because they involved compliance with the TPIAÂs statutory requirements and bore on the entityÂs right to relief. See id. at 673-74 (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000)). Therefore, we held that a motion for summary judgment rather than a plea to the jurisdiction was the proper vehicle by which the city should have challenged the entityÂs right to mandamus relief under the TPIA. Id. at 674; see also Kazi, 12 S.W.3d at 76-77 (quoting 21 C.J.S. Courts § 16, at 23 (1990)) (ÂÂThe right of a plaintiff to maintain suit, while frequently treated as going to the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief rather than to the jurisdiction of the court to afford it.ÂÂ).
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In the present case, the city filed a plea to the jurisdiction to challenge Mayer BrownÂs right to seek mandamus relief under the TPIA, just as it did in Concerned Community. Here, as in Concerned Community, the city contends that Mayer Brown lacks standing because it does not qualify as a Ârequestor under the TPIAÂa contention that goes to the merits of Mayer BrownÂs right to relief. Because the cityÂs challenge to Mayer BrownÂs asserted status as a Ârequestor under the TPIA goes to the merits of Mayer BrownÂs right to relief, a plea to the jurisdiction is not the appropriate vehicle for bringing such a challenge. The cityÂs arguments should have been asserted in a motion for summary judgment. See Concerned Cmty., 209 S.W.3d at 673-74; see also Kazi, 12 S.W.3d at 76-77.
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Id. at **8-10.Â
Applying the holding in Estrada to the facts in this case, the wrong procedural vehicleÂa plea to the jurisdictionÂwas used to grant relief to the City. See id. at **8-10. In response to this contention, the City directs us to the supreme courtÂs decision in State v. Lueck, 290 S.W.3d 876 (Tex. 2009).[6] However, we do not find that case to be relevant in this matter. Moreover, in researching this issue, we are unable to find any other case law directly on point. It is telling that the City devotes approximately half of its appellate brief to discuss that the trial court would not have erred in granting summary judgment, though the trial court did not grant summary judgment in this matter. Therefore, in applying the holding in Estrada, which is still good law with respect to the TPIA, we conclude that, although the trial court is correct in finding that Bonner is not entitled to the information sought, the CityÂs motion for summary judgment is the proper procedural vehicle for making this determination rather than the CityÂs plea to the jurisdiction.[7] See Ferrell, 248 S.W.3d at 156; IT-Davy, 74 S.W.3d at 855; see also Estrada, 2009 Tex. App LEXIS 1970, at **8-10. We sustain BonnerÂs sole issue.
V.     Conclusion
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Having sustained BonnerÂs sole issue on appeal, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.[8]
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AL SCOGGINS
                                                                                   Justice
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Before Chief Justice Gray,
            Justice Davis, and
            Justice Scoggins
            (Chief Justice Gray dissents)
Reversed and remanded
Opinion delivered and filed August 31, 2011
[CV06]
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[1] In his pro se appellantÂs brief, Bonner argues, by one issue, that the trial court abused its discretion in granting summary judgment in favor of the City; however, a review of the record indicates that the trial court granted the CityÂs plea to the jurisdiction, not its motion for summary judgment. Nevertheless, we construe BonnerÂs issue as challenging the propriety of the trial courtÂs order granting the CityÂs plea to the jurisdiction.
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[2] Bonner attached to his petition for writ of mandamus a copy of an affidavit executed by Don Adams, a peace officer with the Burleson Police Department. In his affidavit, Adams explained that, pursuant to a search warrant, several of BonnerÂs computers contained child pornography and were subsequently seized. Adams also noted that he interviewed Dodd and that she Âstated during the interview that Bonner had been investigated previously by the Texas Department of Family and Protective Services for a complaint relating to Âinappropriately touching a neighbor[Â]s female daughter who was under the age of 18.Â
[3] The City stated that section 552.223(a), rather than section 552.028(a), of the government code did not require it to provide Bonner with the requested information. In making this assertion, the City cited to the exact language of section 552.028(a); thus, we presume that the listing of section 552.223(a) was a typographical error. See Tex. GovÂt Code Ann. § 552.028(a) (West 2004).
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[4] Though this case focuses on the inquiry made by ÂTexas Brat, the record contains three inquiries for the information made by Bonner himself on February 8, 2010, June 17, 2010, and July 30, 2010.Â
[5] It does not appear as if the incarcerated individual in Estrada: (1) challenged the trial courtÂs granting of the CityÂs plea to the jurisdiction; or (2) personally requested information from a governmental entity.
[6] In Lueck, the supreme court considered whether the elements of section 554.002(a) of the government code, otherwise known as the Texas Whistleblower Act, constituted jurisdictional facts that implicated the trial courtÂs subject-matter jurisdiction. State v. Lueck, 290 S.W.3d 876, 881-82 (Tex. 2009). According to the Lueck court, section 554.002(a) prohibits retaliation for reporting violations of the law to the appropriate law enforcement authority. Id. at 880. The supreme court concluded that the elements of section 554.002(a) could be considered jurisdictional facts when it is necessary to resolve whether a plaintiff had alleged a violation under the Texas Whistleblower Act. Id. at 882-84. In arriving at its conclusion, the Lueck court also noted that section 311.034 of the government code provides that Âstatutory prerequisites to suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity. Id. at 883 (citing Tex. GovÂt Code Ann. § 311.034 (West Supp. 2010)). The City does not adequately explain how the Lueck decision renders Estrada inapposite with respect to whether this TPIA complaint should have been challenged by a summary judgment motion or a plea to the jurisdiction. Furthermore, we are unable to find any authority holding that oneÂs status as a Ârequestor is a statutory prerequisite to bring a mandamus petition pursuant to section 552.321(a) of the government code.
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[7] However, we note that it appears as if Bonner is not entitled to the information sought based on two different statutory provisions. See Tex. GovÂt Code Ann. § 552.028(a) (providing that a governmental unit need not comply with an information request made by an incarcerated individual or an agent of the incarcerated individual, other than the incarcerated individualÂs attorney); see also Tex. Fam. Code Ann. § 261.201(a) (West Supp. 2010) (stating that an allegation of suspected abuse or neglect is not subject to public release under chapter 552 of the government code). And while we recognize that a party seeking affirmative relief must have standing to invoke a trial courtÂs subject-matter jurisdiction, see DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008), the supreme court has held that standing, as a component of subject-matter jurisdiction, may be raised by other procedural vehicles, such as a motion for summary judgment. Lueck, 290 S.W.3d at 884; see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
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[8] On appeal, the City urges us to Âmodify the trial courtÂs disposition to grant a final summary judgment pursuant to Texas Rules of Appellate Procedure 43.2(c) and 43.3. See Tex. R. App. P. 43.2(c), 43.3. However, based on our review of the record, it does not appear that the trial court considered the CityÂs motion for summary judgment. Instead, the trial court granted the CityÂs plea to the jurisdiction, which demonstrates that the trial court did not believe that it had jurisdiction over this matter. The City does not cite to authority indicating that we are duty-bound to grant a motion that was not considered by the trial court. We, therefore, decline to render in this case and, instead, choose to remand the case for proceedings consistent with this opinion.