ACCEPTED
06-15-00086-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/10/2015 2:40:20 PM
DEBBIE AUTREY
SHEEHY, LOVELACE & MAYFIELD, P. C. CLERK
ATTORNEYS AND COUNSELORS AT LAW
Established 1 893
510 N. VALLEY MILLS DRIVE
RECEIVED IN
6th COURT OF abennett@slmpc.com
APPEALS
E. ALAN BENNETT SUITE 500 E-MAIL:
WACO, TEXAS 76710 TEXARKANA, TEXAS
12/10/2015 2:40:20 PM
TELEPHONE (254) 772-8022
FACSIMILE (254) 772-9297 DEBBIE AUTREY
Clerk
December 10, 2015
Debbie Autrey, Clerk
Sixth Court of Appeals
100 North State Line Ave., Ste. 20
Texarkana, Texas 76701
Re: Cause No. 06-15-00086-CV; In re Tyndell;
In the Sixth Court of Appeals
Dear Ms. Autrey:
Please accept this as my post-submission letter brief in the above cause and
bring it to the attention of the justices at your earliest convenience.
In this post-submission letter brief, counsel provides citations to four
additional authorities referenced in oral argument that were not cited in the
relator’s petition with a brief statement of the legal principles for which the
cases are cited.
In re China Oil and Gas Pipeline Bureau, 94 S.W.3d 50, 63-64 (Tex. App.—
Houston [14th Dist.] 2002, orig. proceeding)
This case stands for the proposition that in a mandamus proceeding
an appellate court cannot consider any and every factual or legal basis
that might support the trial court’s decision. Rather, the appellate court
must restrict its review to the specific bases recited for the decision
under review.
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 2
In the China Oil decision, corporate shareholders filed suit against a
Chinese business entity for breach of a joint venture agreement, breach
of fiduciary duty and fraud. After the plaintiffs obtained a default
judgment, China Oil moved to vacated the judgment on numerous
grounds including immunity under the Foreign Sovereigns
Immunities Act (FSIA). The trial court ruled that China Oil had waived
immunity under the FSIA. In this mandamus proceeding, China Oil
claimed that the trial court abused its discretion because: (1) it had not
waived immunity under the FSIA; and (2) even if waiver did not
apply, it was entitled to immunity under the commercial activities
exception to the FSIA. However, the Court refused to address the
second argument because “the trial court did not base its decision on
this ground.” Id. at 64.
China Oil cited Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 279
(Tex. 1987), for the proposition that the trial court’s decision on the
claim of immunity under the FSIA must be upheld under any legal
theory supported by the evidence.
However, the Fourteenth Court rejected this contention and expressly
held that this is not the appropriate standard of review for a
mandamus proceeding. Instead, it is the appropriate standard of
review for an appeal following a bench trial when no findings of fact
or conclusions of law are requested.
China Oil, 94 S.W.3d at 64.
Breceda v. Whi, 187 S.W.3d 148 (Tex. App.—El Paso 2006, no pet.)
In Breceda, the El Paso Court addressed the attorney-client relationship
and explained how the actions of an attorney are not always binding
on the client.
The attorney-client relationship is one of agent and principal; the
acts of the former ordinarily binds the latter. Generally, within
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 3
these roles, every reasonable presumption is to be indulged in
favor of the attorney duly employed. The most important
presumption of agency is that the agent acts in accordance with
the wishes of the principal. However, when the evidence reveals
that the attorney did not have the client's authority to agree, the
agreement will not be enforced. Ebner, 27 S.W.3d at 300; see
Cleere, 605 S.W.2d at 296; see also Kelly v. Murphy, 630 S.W.2d 759,
761 (Tex. App.-Houston [1st Dist.] 1982, writ ref'd n.r.e.)
(although attorney is presumed to be acting within authority
given by clients, presumption is rebuttable); Southwestern Bell
Tel. Co. v. Vidrine, 610 S.W.2d 803, 805 (Tex. Civ. App.-Houston
[1st Dist.] 1980, writ ref'd n.r.e.) (“mere employment of counsel
does not clothe the counsel with authority to settle the cause
without the specific consent of the client”). Thus, the
presumption of authority of the attorney is a rebuttable one.
Breceda, 187 S.W.3d at 152 (some citation omitted)
Garza v. Tex. Dep’t of Human Servs., 757 S.W.2d 44 (Tex. App.—San Antonio
1988, writ denied)
The Real Parties in Interest cite Garza in their response. Counsel for
Relator briefly referred to Garza in argument as an example of the sort
of bad faith or manipulation that can justify the denial of a motion to
transfer venue under Section 155.201.
In Garza, the mother filed a separate divorce petition on the day of trial
of a suit by CPS to terminate her parental rights. She requested a
transfer of venue that morning. Bad faith and manipulation of the
system are evident in Garza. The mother had previously filed a cross-
action for divorce in the termination suit but non-suited the cross-
action on the day of trial. She sought to transfer the SAPCR to another
district court in the same county. The district court presiding over the
SAPCR had subject-matter jurisdiction of her cross-action for divorce.
Therefore, the district court was certainly within its discretion under
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 4
those facts to find that she filed the new divorce petition and motion
to transfer in an attempt to delay the termination suit and manipulate
the proceedings.
The facts of Tyndell’s case do not support a similar finding of bad faith
or manipulation.
Huey v. Huey, 200 S.W.3d 851 (Tex. App.—Dallas 2006)
Respondent referred to the Huey decision when he announced his
ruling and counsel for Relator briefly mentioned it in argument. Huey
provides yet another example of the sort of bad faith or manipulation
that can justify the denial of a motion to transfer venue under Section
155.201.
In Huey, the mother moved the children to a different county in
violation of the residency restrictions of the parties’ divorce decree to
establish venue under the 6-month residence provision of Section
155.201(b). The trial court denied her motion to transfer venue.
The Dallas Court affirmed because: (1) the mother’s conduct of moving
the children without first seeking a modification of the divorce decree
“directly contravenes” the decree; (2) to permit a transfer under these
circumstances would encourage similarly situated litigants to willfully
disregard residency restrictions in divorce decrees; and (3) compelling
the requested transfer would promote impermissible forum shopping.
As counsel for Relator argued, Huey is distinguishable primarily
because Relator did not engage in any unlawful conduct or violate any
extant court order to create proper venue in Jefferson County, where
the divorce suit is pending. Rather, Relator has been a resident of
Jefferson County for over four years and venue of her divorce suit is
undisputedly proper there.
No. 06-15-00086-CV
In re Tyndell
Post-Submission Letter Brief
Page 5
Respectfully submitted,
/s/ Alan Bennett
E. Alan Bennett
xc: Georganna L. Simpson (via email)