NUMBER 13-06-405-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOE GUADALUPE BALLESTEROS Appellant,
v.
NUECES COUNTY, TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
CONCURRING MEMORANDUM OPINION
Before Justices Yañez, Benavides, and Vela
Concurring Memorandum Opinion by Justice Benavides
I join the majority opinion in full because I believe that it faithfully and correctly applies the plain language of section 89.0041 of the local government code. Tex. Loc. Gov't Code Ann. § 89.0041 (Vernon Supp. 2006). I write separately, however, to observe that section 89.0041 is--to echo a memorable phrase from Justice Potter Stewart--"an uncommonly silly law." See Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). By applying this law, which lacks an actual notice exception, our Court dismisses the claim of a plaintiff who did not provide additional notice after he had already provided proper service. Moreover, the defendant in this case assuredly had actual notice because it had been entangled in the same lawsuit in federal court for over a year. In essence, we are forced to dismiss Mr. Ballesteros's claim because he did not provide notice after he had provided notice. Silly, indeed.
First-year law students are taught that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (U.S. 1950) (emphasis added). It appears that section 89.0041 was drafted in an effort to bring Texas law closer in conformity with this standard by clarifying the notice rules for lawsuits against counties. This effort was well-intentioned, but the result was not so well-drafted.
The statute does not, unfortunately, address the procedure for situations, such as Mr. Ballesteros's, in which a county already has actual notice of a lawsuit because it has contested the suit in federal court. When a county has (1) contributed to sixty docket entries in a case in federal court, then (2) attended a hearing in that court, then (3) expressed that it understood the court's decision to dismiss a claim so that it could be tried in state court, and then (4) agreed on the record with the plaintiff that no further claims would be filed nor any further discovery conducted beyond the scope of the remaining state claim, that county cannot truthfully argue that it did not have notice of a pending action or an opportunity to present its objections. See id. Other Texas statutes recognize these situations by including actual notice exceptions, and section 89.0041 should do the same. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c) (Vernon Supp. 2006) .
As an added absurdity of section 89.0041, consider the following scenario. A plaintiff could first file a suit and obtain personal service on the same day to the County Judge. Twenty-seven days later, the plaintiff could be awarded a default judgment because the defendant failed to file an answer. See Tex. R. Civ. P. 99(c) (requiring an answer from defendant to be filed by "the Monday next following the expiration of twenty days after [service]" before default judgment may be entered). But then, less than a week later, even if the plaintiff had subsequently provided notice to the County Judge within thirty days, his suit could be dismissed--merely because he did not send post-service notice via certified or registered mail. Tex. Loc. Gov't Code Ann. § 89.0041 ("written notice must be delivered by certified or registered mail by the 30th business day after suit is filed"). This very idea of "post-service notice"--or notice upon notice--strikes me as absurd.
Although every court that has looked at this case has felt compelled to strictly apply the plain language of section 89.0041, they have also expressed bewilderment with the statute's peculiarities. The majority, for instance, points out that, "in this case, the equities favor Ballesteros because both sides had been previously engaged in litigation in this very matter," but the statute is "harsh and seemingly a trap for the unwary." See Majority opinion, Part III, subpart B. Furthermore, the reporter's record from the hearing on the motion to dismiss demonstrates that the trial court was dumbfounded to hear the County advance the argument that it had not received notice for a suit it had already responded to in federal court: "I can't even believe you all [the County] are going there really, in this case that's already been through a legal proceeding and processed at federal court. It is silly. But that is the statute."
Justice Stewart's famous phrase about "uncommonly silly laws" was also cited by Justice Clarence Thomas in Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Thomas, J. dissenting). There, Justice Thomas criticized a Texas statute by quoting Justice Stewart and then added, "If I were a member of the Texas legislature, I would vote to repeal [this law]." Id. That language is applicable in this case too. If I were a member of the Texas Legislature, I would vote to repeal section 89.0041--or at least modify it to include a critically needed actual notice exception.
The Court applied section 89.0041 correctly today, but it was the correct application of a silly statute. For this reason, I concur.
__________________________
GINA M. BENAVIDES,
Justice
Concurring Memorandum Opinion delivered
and filed this the 31st day of August, 2007.