Craig Seldin Comments On CIVIL CONSPIRACY IN TEXAS

An actionable civil conspiracy is “a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means” [ Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854, 856 (Tex. 1968) ]. A person must have knowledge of the object and purpose of a conspiracy to be liable as a coconspirator. “There must be an agreement or understanding between the conspirators to inflict a wrong against, or injury on, another, a meeting of minds on the object or course of action, and some mutual mental action coupled with an intent to commit the act which results in injury; in short, there must be a preconceived plan and unity of design and purpose, for the common design is of the essence of the conspiracy” [ Schlumberger Well Sur. Corp. v. Nortex Oil & G. Corp., 435 S.W.2d 854, 857 (Tex. 1968) ].

The conspiracy agreement may be tacit; a formal agreement is not required. Moreover, it is not essential that each conspirator have knowledge of the details of the conspiracy or that it be established by direct evidence that all combined at a given time prior to each transaction [ Bourland v. State, 528 S.W.2d 350, 354 (Civ. App.–Austin 1975, ref. n.r.e.) ]. Inferences of concerted action may be drawn from joint participation in the transactions and from enjoyment of the fruits of the transactions on the part of the defendants. [ International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 582 (Tex. 1963) ].

 

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BAILMENT IN TEXAS

The basic elements of a bailment are the delivery and acceptance of personal property from one person to another with an express or implied agreement that a purpose will be carried out and the property then returned. Sisters of Charity of Incarnate v. Meaux, 122 S.W.3d 428, 431 (Tex. App.-Beaumont 2003, pet. denied)  An assertion of right or dominion over the bailed property that is inconsistent with the bailor’s right of ownership constitutes conversion by the bailee. Snyder v. St. Paul Mercury Indem. Co., 191 S.W.2d 107, 110 (Civ. App.-Galveston 1945, ref. w.o.m.).

This occurs when the bailee sells, leases, pledges, or otherwise transfers title or possession of the bailed property without authorization Presley v. Cooper, 155 Tex. 168, 284 S.W.2d 138, 140 (1955). It can also occur when the bailee breaches the specific bailment agreement regarding either use of the property or its location. In this situation the bailor would have a choice of inconsistent types of relief- either the award of title and possession of the bailed item or the reasonable market value of the property . Seale v. White, 217 S.W.2d 38, 39 (Civ. App.—Dallas 1949, ref. n.r.e.).

 

By Craig Seldin

DEFICIENCY ACTIONS IN TEXAS

Where a validly executed note goes into default and there is a resulting trustee’s sale of the security for the note, the mortgagee must prove the following elements before it is entitled to a judgment for any deficiency remaining on the note: (1) the amount due on the note at the time of foreclosure; (2) that proper notice of acceleration has been given; (3) that a valid foreclosure sale was made; and (4) that he has given credit to the obligor for the amount received at the trustee’s sale and any other legitimate payments and credit. Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d 25, 1992 Tex. App. LEXIS 2473 (Tex. App. Dallas 1992) Winfield v. Dosohs I, 1998 Tex. App. LEXIS 4674 (Tex. App. Houston 1st Dist. July 30, 1998)
Texas courts have emphasized the importance of confirmation of receipt of notice in certified mail notices.. Crown Constr. Co. v. Huddleston, 961 S.W.2d 552 (Tex. App.-San Antonio 1997) In the Crown case, the Court wrote that, if not for the confirmation of receipt, delivery by regular mail would have been acceptable. Tex. Prop. Code § 51.002 (b) (3) requires the service of written notice of any sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt. Tex. Prop. Code § 51.002 (e) states that the way to evidence service is to provide an affidavit of a person knowledgeable of the facts to the effect that service was completed.
A mortgagee seeking a deficiency judgment must plead and prove the underlying secured obligation, as well as a default or breach and the proper maturation of the indebtedness. The details of the trustee’s sale, including the amount received and expenses paid out, must also be proved. The trustee must have followed the powers conferred by the deed of trust [Canfield v. Foxworth-Galbraith Lumber Co., 545 S.W.2d 583, 586 (Civ. App.–Tyler 1976, ref. n.r.e.)], and must have complied with the statutory requirements. Furthermore, a creditor may not sue for a deficiency judgment after a nonjudicial foreclosure unless the sale of the collateral was performed in a commercially reasonable manner. [Tanenbaum v. Economics Laboratory, Inc., 628 S.W.2d 769, 771 (Tex. 1982) ; see also Tarrant Sav. Ass’n v. Lucky Homes, Inc., 390 S.W.2d 473, 474-475 (Tex. 1965) (inadequacy of notice might invalidate sale); Milliorn v. Finance Plus, Inc., 973 S.W.2d 690, 693-694 (Tex. App.–Eastland 1998, pet. denied) (creditor’s failure to post notice of sale demonstrated that sale was not commercially reasonable)].
The mortgagee or mortgage servicer may appoint a substitute for the original trustee, but must do so in strict conformity with the terms of the deed of trust. [see Shamburger v. Conoco, Inc., 999 S.W.2d 462, 466-467 (Tex. App.–Amarillo 1999, pet. denied) ]. The Tex. Prop. Code § 51.002 (2009) has the following requirements for valid sales of foreclosed property:
 posting twenty one days prior to a sale at the courthouse door of each county in which the property is located a written notice designating the county in which the property will be sold;
 filing in the office of the county clerk of each county in which the property is located a copy of the notice posted under Subdivision (1)
 serving written notice of the sale by certified mail on each debtor who, according to the records of the mortgage servicer of the debt, is obligated to pay the debt.
(b-1)
 The sale must begin at the time stated in the notice of sale or not later than three hours after that time.
 The mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor’s residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection
by Craig Seldin

VACATING TEXAS ARBITRATION AWARDS

Where there is no allegation of a statutory or common law ground to vacate or modify an arbitration ruling, the court lacks jurisdiction to review the arbitrator’s decision. In re Guardianship of Cantu de Villarreal, 330 S.W.3d 11 (Tex. App. Corpus Christi 2010, no writ). The First Issue should be overruled on this ground alone.     Absent proof of certain statutory or common law exceptions, a trial court cannot vacate or modify an arbitration award. Barton v. Fashion Glass and Mirror, Ltd., 321 S.W.3d 641 (Tex.App.-Houston [14th Dist.]. 2010) The common-law grounds for vacating an arbitration ruling are as follows: (1) fraud; (2) misconduct; or (3) such gross mistake as would imply bad faith and failure to exercise honest judgment by the arbitrator(s). Riha v. Smulcer, 843 S.W.2d 289, 292 (Tex. App.-Houston [14th Dist.] 1992, writ ref’d n.r.e).  A gross mistake results in a decision that is arbitrary and capricious. Bailey & Williams v. Westfall, 727 S.W.2d 86, 90 (Tex. App.–Dallas 1987, writ ref’d n.r.e.). A judgment rendered after honest consideration given to conflicting claims, no matter how erroneous, is not arbitrary and capricious. Id.

An arbitration award may not be vacated merely because the arbitrators have made a mistake of fact or law. Universal Computer Systems, Inc. v. Dealer Solutions, L.L.C., 183 S.W.3d 741 (Tex. App.-Houston 1st Dist. 2005, writ. denied 2006) Any alleged errors by the arbitrators in applying the substantive law are not subject to judicial review. Crossmark, Inc. v. Hazar, 124 S.W.3d 422 (Tex. App.-Dallas 2004, rev. denied 2004) If the arbitrator is even arguably construing the contract and acting within the scope of his or her authority, the fact that the court is convinced that he or she committed serious error is not sufficient to vacate the award. Id. As long as the arbitrators’ decision draws its essence from the contract, the ruling must be confirmed.  Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244 (Tex. App.-Houston [14th Dist.] 2003).  If mistake is relied on as a ground for vacation of an arbitration decision, it must be shown to have been gross and palpable. Smith v. Barnett, 373 S.W.2d 762 (Tex.App.-Dallas 1963, no writ) Gross mistake results in an arbitration decision that is arbitrary or capricious, while an honest judgment made after due consideration given to conflicting claims, however erroneous, is not arbitrary or capricious. Universal Computer Systems, Inc. v. Dealer Solutions, L.L.C., 183 S.W.3d 741 (Tex. App.-Houston [1st Dist.] 2005, rev. denied 2006).  Though Ron disagrees with the arbitrator’s decision to refuse to invalidate the MSA or to conduct a new arbitration, he never alleges that Brupbacher acted arbitrarily, capriciously, or dishonestly.

Absent a common law ground to vacate or modify the award, a reviewing court lacks jurisdiction to review other complaints, including the sufficiency of the evidence supporting the award.  Jamison & Harris v. Nat’l Loan Investors, 939 S.W.2d 735, 737 (Tex. App.-Houston [14th Dist.] 1997, pet.  den.)  The fact that the relief granted in an award could not or would not be granted by a court of law or equity is not a ground for vacating the award. Tex. Civ. Prac. & Rem. Code § 171.090; see Providian Bancorp Services v. Thomas, 255 S.W.3d 411, 416-418 (Tex. App.-El Paso 2008, no writ) The party attacking a decision has the burden of establishing facts of misconduct that require the trial court to vacate the award.  Atrium Westwood VIII v. Barrick Westwood Ltd., 693 S.W.2d 699, 700-701 (Tex. App.-Houston [14th Dist.] 1985, no writ) A trial judge reviewing an award may not substitute his or her judgment for that of the arbitrators simply because the judge would have reached a different decision. City of San Antonio v. McKenzie Const. Co., 150 S.W.2d 989, 996 (Tex. 1941)

Every reasonable presumption must be indulged to uphold the decision. Errors in an award do not warrant vacating the award unless they result in a fraud or in some great and manifest wrong or injustice. Myer v. Americo Life, Inc., 232 S.W.3d 401, 410-412 (Tex. App.-Dallas 2007, no writ) To show a mistake that is considered arbitrary and capricious and, therefore, subject to judicial interference, the party must prove that the action of the arbitrators was willful, unreasoning, without consideration, and in disregard of the circumstances of the case. Home Owners Mgmt. Enters. Inc. v. Dean, 230 S.W.3d 766, 768-769 (Tex. App.-Dallas 2007, no writ) The term misconduct contemplates acts evidencing unfairness or that are contrary to all principles of a just proceeding. It does not include simple errors of law such as receiving ex parte affidavits as testimony or refusing to permit a party to inspect documents in respect to which testimony was being given. Misconduct is an act that so affects the rights of a party as to deprive that party of a fair hearing. Mullinax, Wells, Baab and Cloutman v. Sage, 692 S.W.2d 533, 535-536 (Tex. App.-Dallas 1985, writ ref. n.r.e.)

by Craig Seldin

CONVERSION DAMAGES IN TEXAS by Craig Seldin

Conversion is an offense against the possession of property. Stats v. Miller, 240 S.W.2d 342, 345 (Civ. App.-Amarillo 1951), rev’d on other grounds, 150 Tex. 581, 243 S.W.2d 686 (1951). It is the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of, or inconsistent with, the other person’s rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 446 (Tex. 1971)]. Intent is not an element of conversion; the defendant’s state of mind is immaterial, except on the issue of exemplary damages Cargal v. Cargal, 750 S.W.2d 382, 384 (Tex. App.–Fort Worth 1988, no writ)

 

 

Damages are for the value of the converted property and for the loss of use of the property from the date of the conversion. Other damages that are the natural and proximate result of the conversion may also be awarded Virgil T. Walker Constr. Co., Inc. v. Flores, 710 S.W.2d 159, 161 (Tex. App.-Corpus Christi 1986, no writ)-(award of costs for shipping property). The value of used clothing, household goods, and personal effects is measured by their value to the user as specially adapted to the user’s needs. Damages for their conversion are not limited to their market value Williamson v. Askew, 328 S.W.2d 473, 474 (Civ.App.-Fort Worth 1959, no writ)  Presumably, the value of an heirloom lost by conversion would be measured by the same rules that apply to valuing an heirloom when the loss is attributable to some other cause. The measure normally applied is the reasonable special value of the item to the owner, taking into consideration his or her feeling for the property Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 304-305 (Tex. 1963) In the usual case, the plaintiff in a conversion action recovers prejudgment interest as damages, as well as the value of the property converted at the time and place of conversion  DeShazo v. Wool Growers Central Storage Co., 139 Tex. 143, 162 S.W.2d 401, 404 (1942)].  Exhibit A, attached to this letter and incorporated by reference herein, is an itemization of Tenant’s personal property items that were illegally appropriated from her apartment
Exemplary damages are recoverable in conversion actions filed on or after September 1, 2003, when the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from the defendant’s fraud, malice, or gross negligence [C.P.R.C. § 41.003(a) ; Acts 2003, 78th Leg., R.S., ch. 204, §§ 13.04, 23.02(a)]. ”Fraud” refers to fraud other than constructive fraud [C.P.R.C. § 41.001(6) ]. ”Malice” refers to a specific intent by the defendant to cause substantial injury or harm to the claimant [C.P.R.C. § 41.001(7) ]. ”Gross negligence” means an act or omission that, when viewed objectively from the standpoint of the actor at the time of its occurrence, involves an extreme degree of risk, and of which the actor has actual, subjective awareness of the risk involved but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others [C.P.R.C. § 41.001(11) ].

 

For conversion actions filed before September 1, 2003, exemplary damages may be awarded in a conversion case if the defendant’s conduct rose to the level of ”malice” as defined in the exemplary damage statutes  For the defendant’s conduct to be considered ”malicious” for exemplary damage purposes, either (1) the defendant must have acted with a specific intent to cause substantial injury to the plaintiff; or (2) the defendant’s conduct, when viewed objectively from the standpoint of the defendant at the time it occurred, must have involved an extreme degree of risk, considering the probability and magnitude of the potential harm to the plaintiff, and the defendant must have proceeded with conscious indifference to the rights, safety, or welfare of the plaintiff despite the defendant’s actual, subjective awareness of the risk involved. Transportation Ins. Co. v. Moriel, 889 S.W.2d 10, 20, 23 (Tex. 1994)

Written by Craig Seldin

INADEQUATE APPELLATE BRIEFING IN TEXAS by Craig Seldin

Inadequate briefing may result in waiver of a party’s appellate complaints. CHC v. City of Lancaster, 316 S.W.3d 782, 786 (Tex. App.-Dallas 2010, no pet. h.)  It is a well-established rule that bare assertions of error, without argument or authority, waive error. Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 839 (Tex. App.-Fort Worth 1999, no pet.) Thus, to avoid the possibility of waiver due to inadequate or deficient briefing, a party must ensure that arguments raised in support of its position on appeal are adequately supported by authority and any necessary record references. CHC v. City of Lancaster, 316 S.W.3d 782, 786 (Tex. App.-Dallas 2010, no pet. h.) The statement of facts must be supported by the record references. Tex. R. App. P. 38.1(g) Argument must contain appropriate citation to authorities and record. Tex. R. App. P. 38.1(i) Arguments unsupported by citation to authority present nothing for review. Harris Mun. Utility v. Mitchell, 915 S.W.2d 859, 866 (Tex. App.-Houston [1st Dist.] 1995, pet. den.) The failure to provide argument or authority regarding certain points of error waived those points. In re G.B.R., 953 S.W.2d 391, 394 n.1 (Tex. App.-El Paso 1997, no writ) The failure to adequately brief a point of error constituted waiver. M.A.V. Jr. v. Webb Cty. Court at Law, 842 S.W.2d 739, 749 (Tex. App.-San Antonio 1992, pet. den.) Due to the complete insufficiency of both the record and Ron’s Brief in providing correct record references and legal authority for his points of error, this Court should overrule both issues contained in his appeal.

A number of recent court of appeals decisions also treat unclear or badly reasoned arguments harshly. Brown v. Texas Bd. of Nurse Examiners, 194 S.W.3d 721, 723 (Tex. App.-Dallas 2006, no pet.) An appellate brief “must contain a clear and concise argument for the contentions made …”  Tex. R. App. P. 38.1(h)  Additionally, the issues in an appellate brief must address specific errors rather than merely attack the trial court’s order in general terms. A party’s appellate brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief”. Tex. R. App. P. 38.1(h) Thus, briefs that contain conclusory statements, rather than a succinct, clear, and accurate statement of the arguments, may result in waiver of appellate complaints. Arellano v. Magana, 315 S.W.3d 576, 577-578 (Tex. App.-El Paso 2010, no pet. h.)  Ron’s Brief lacks only explanation of fundamental error or why such error was committed. Ron’s Brief applies the contract standard, rather than the correct standard, TFC § 6.602, to analyzing the alleged ambiguity. There is no argument on what constituted the ambiguity.

DEPOSITIONS IN ADVANCE OF TEXAS LITIGATION by Craig Seldin

Investigating a potential claim or suit is one of the express purposes of TRCP 202, [see TEX. R. CIV. P. 202.1(b)] and a potential litigant should be permitted to explore whether claims exist without having to file a lawsuit to do so. In re Emergency Consultants, Inc., 292 S.W.3d 78, 79 (Tex. App.-Houston [14th Dist.] 2009, no pet. h.) Any other holding would eviscerate the investigatory  purpose of Rule 202 and essentially require one to file suit before determining whether a claim exists. Id. This is not efficient, and it potentially places counsel in a quandry, considering counsel’s ethical duty of candor to the court and the requirements of Texas Rule of Civil Procedure 13. Id.  Rule 13 provides in part that “[t]he signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.”

When a petition requests a deposition to investigate a potential claim, the petitioner is not required by Civil Procedure Rule 202 to give information about the anticipated suit and parties. (see Dorsaneo, Texas Litigation Guide § 10.102 [1] [a]; Tex. R. Civ. P. 202.2). Further, a Petitioner is not required to have a viable claim, but only a potential claim. (see Dorsaneo, Texas Litigation Guide § 10.01; In re Emergency Consultants, Inc., infra, 78, 79 (Tex. App.-Houston [14th Dist.] 2009, no pet. h.); City of Houston v. U.S. Filter Wastewater Group, Inc., 190 S.W.3d 242, 245 (Tex. App.–Houston [1st Dist.] 2006, orig. proceeding) There is no requirement in Rule 202 that the person sought to be deposed be a potentially liable defendant in the claim under investigation. Id.  By its terms, Rule 202 instead requires a trial court to order a deposition if it makes a finding that “… “the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.” TEX. R. CIV. P

 

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CONTITUTIONAL ISSUES IN EXPULSION OF STUDENTS FROM STATE UNIVERSITIES by Craig Seldin

Federal Procedural Due Process

The Fourteenth Amendment to the United States Constitution provides that “[no]  . . . State [shall] deprive any person of life, liberty or property without due process of law.” U.S. Const. amend. XIV. When a student is expelled from a state university, the requirements of procedural due process apply. A university cannot deprive a plaintiff of a property right without due process of law, in violation of the Fourteenth Amendment of the U.S. Constitution. The federal Due Process Clause applies to all decisions to expel students from tax supported educational institutions.  The Due Process Clause guarantees some notice and an opportunity to be heard before a student can be suspended or expelled from school. These rights are implicated when a student’s future attendance at a public institution of higher education is in jeopardy. The Due Process Clause applies to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion. It is well settled that an expulsion from college is a stigmatizing event which implicates a student’s protected liberty interest.

College students have liberty interests in their education, which the Fifth Circuit has recognized.  Therefore, dismissals and expulsions of students by state actors at public universities require due process, the question being what process is due.

Different standards of procedural due process apply to disciplinary dismissals than academic dismissals The essence of disciplinary issues is the commission of a misdeed or improper behavior, as opposed to performing unsatisfactorily at one’s studies or activities related to those studies.  In a disciplinary dismissal, a student is entitled to a higher standard of due process, with the right to a hearing. When a student is dismissed for disciplinary reasons, notice of the charges, notice of the evidence to be used against Plaintiff, and a hearing are required, prior to dismissal.  The due process notice must be appropriate to the nature of the case. The harsher the punishment, the more process the student is due. The hearing should have been conducted by an impartial tribunal in a meaningful manner. More formal procedures must be imposed when imposing disciplinary actions. Formal due process must be afforded a student prior to expulsion. Expulsion is warranted only for repeated for extreme disobedience. Students have a sufficient interest in remaining as students in good standing at a public institution of higher learning to require notice and the opportunity for a hearing prior to expulsion for misconduct.

Due process required that a student be given sufficient detail in a written notice, including factual allegations and references to applicable university rules and regulations to fairly advise the student of what he was accused, as well as a fair opportunity to have prepared a defense, prior to his dismissal.   A student should be given the names of the witnesses against him and an oral or written report on the facts to which each witness in support of the disciplinary action would testify. He should be given the opportunity to present oral testimony or written affidavits of witnesses in his own behalf. The notice should set forth the procedures to be followed and the procedural rights available, with a limited right to discovery. A copy of the student conduct code and disciplinary procedures should be provided. At least five days notice of the hearing should have been provided to a student.  He should have been dismissed pending the hearing only if a student posed a danger or threat. A student should not be dismissed without such a hearing with these procedures.

A critical element of due process is prior notice of prohibited conduct. A rule or policy that is not articulated cannot be applied. Articulating polices and rules provides fair warning of prohibited conduct. A rule is impermissively vague if it fails to define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and it fails to establish standards to permit enforcement in a non-arbitrary, nondiscriminatory manner.

Federal Substantive Due Process

Substantive due process is contained in the United States and Texas Constitutions. Substantive due process addresses government actions that violate an identified liberty or property interest protected by the U.S. Due Process Clause and the Texas Due Course of Law provisions.  The property interest is established in the tuition contract of a college and a student. The liberty interests protected by the Due Process Clause include a student’s good name, reputation, honor, or integrity, and prohibits the imposition of a stigma or other disability that forecloses his freedom to take advantage of educational, employment, or other opportunities. A student has a property interest in continued enrollment. And he has a liberty interest in the acquisition of useful knowledge.

In this context, substantive due process is arbitrary or capricious decision-making by a state institution, acting through its officials.  There must be a rational basis for the expulsion and  the decision to dismiss him cannot be  motivated by bad faith and ill will unrelated to academic performance.

Stigma Due Process Claims

A student that is dismissed from a university program  faces not only the fact of expulsion, the improbability of being able to transfer to another program, and serious damage to his reputation,  but also the loss of his chosen profession.  The stigma is likely to follow the student and preclude him from completing his education at other institutions. A student has a constitutionally protected liberty interest in continuing his education in good standing that must have been afforded procedural due process. The denial of due process resulting in stigma is actionable under a Section 1983 action against the Defendants.

Federal Equal Protection

The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution essentially directs that all persons similarly situated be treated alike. To establish an equal protection claim the plaintiff must prove that similarly situated individuals were treated differently. A violation of equal protection occurs from selective enforcement of a rule or law if a person, compared with others similarly situated, is selectively treated based on a malicious or bad faith intent to injure the person.

A selective enforcement claim under the Fourteenth Amendment, U.S. Const. amend. XIV, encompasses any arbitrary classification, not just those entitled to heightened scrutiny. There can be equal protection claims brought by a class of one, where a plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in the treatment. Improper personal motive or personal vindictiveness by a state actor is sufficient to establish a selective enforcement claim. A violation of equal protection by selective enforcement arises if a person, compared with others similarly situated, is selectively treated, if such selective treatment is based on a malicious or bad faith intent to injure a person. Selective prosecution, if based upon improper motives, can also violate equal protection. Singling an individual out for oppressive treatment based on personal reasons even without proof that similarly situated individuals were treated differently constitutes a violation of equal protection.

TEXAS DUE COURSE OF LAW

Article I, section 19 of the Texas Constitution states that “no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, 19. The protection provided by the Texas Due Course of Law Clause is broader than federal due process, so that any federal due process violation necessarily implicates a Texas state constitutional due process violation. Article 1, Section 3 of the Texas Constitution provides that all free men, when they form a social compact, have equal rights. This particular provision of the state bill of rights provides for the equal protection of the laws, and provides the same guarantees as the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. Since the Texas constitutional guarantee of due course of law is greater than federal due process and equivalent to federal equal protection, Defendants’ deprivation of federal procedural and substantive due process and equal protection automatically creates a Texas constitutional claim for constitutional violations, wherein a student would be entitled to equitable remedies, including injunctive and declaratory relief.

 

 

 

LIABLE PARTIES UNDER 42 USC 1983 by Craig Seldin

42 USC (United States Code) § 1983 provides for a private civil action to redress the deprivation under color of state law of a right, privilege or immunity secured to a plaintiff by the United States Constitution. “Every person who, under color of any statute…regulation… or usage of any State…subjects, or causes to be subjected, any citizen of the United States…to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…” 42 USC § 1983.

Public employees act “under color” of state law while acting in their official capacities or while exercising their responsibilities pursuant to state law. Private persons jointly engaged with state officials in acts prohibited under Section 1983 are acting under color of state law. The color of state law requirement under 42 USC § 1983 is satisfied by showing that the deprivation resulted from exercise of some right or privilege created by state law or by rule of conduct imposed by state law or by person for whom state is responsible, and that the party charged with deprivation is a person who may fairly be said to be a state actor either because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.

Showing that actions were “under color of state law” does not require that the challenged action be pursuant to state statute; rather, the question is whether there is a sufficiently close nexus between the state and the challenged action, or whether the state has so far insinuated itself into position of interdependence that there is symbiotic relationship between the actor and the state such that challenged action can fairly be attributed to the state. When a person, by virtue of a public position under a state government, deprives another of any constitutional right, and that person acts in the name of the state and for the state and is clothed with the state’s powers, his or her act is that of the state. The element loosely termed as “state action” is highly amorphous and is generally determined on a case-by-case basis after analysis of facts involved. State action is generally found to exist when what is involved is the exercise of power possessed only because the wrongdoer is clothed with authority of state law.

As a corollary to the state action rule it is generally stated that to prove cause of action under 42 USC § 1983, one need not show that the constitutional or statutory infringement complained of is supported by state law, as long as there is some nexus between state involvement and the alleged deprivation. In determining whether a private person’s conduct falls within the proscription of 42 USCS § 1983, the issue is whether, under all of the facts and circumstances, his action fairly can be said to be that of state instrumentality acting under color of state law.

A private citizen, acting in concert with public officials, is acting under color of state law for purposes of 42 USC § 1983. Private individual conduct can constitute action under color of state law where the power possessed by the individual is possessed only because the individual is clothed with authority of state law. A private party may be held to be a state actor when the complained of conduct results from the state agent’s encouragement or command, where state and private actors jointly participate in depriving plaintiff of his rights, or where there is granting of benefits to the private actor by the state.

Craig Seldin

Houston-based attorney Craig Seldin has handled many family law cases over the many years he’s been practicing. Family law is a specialized legal field that, as its name implies, has to do with familial affairs. It’s a specialized body of laws and in many states, family law issues are heard in front of special family law courts.

Family law has jurisdiction over marriages, civil unions, prenuptial agreements, divorces, adoptions, custody and property settlements, among other things. It’s a very delicate area of legal expertise. A good family law attorney is an accomplished lawyer but also an expert negotiator. Family attorneys are privy to some of their clients’ most intimate moments.

Family Law: Marriage and Divorce

It takes a very special kind of person to be a successful family lawyer. Choosing the right person to represent you in these kinds of transactions can be tricky. Much of family law involves negotiations, so people skills can be just as important as legal knowledge here. Complex property transactions secondary to divorce, however, require lawyers with sophisticated financial understanding.

Family lawyers handle the following kinds of transactions:

Marriage

Marriage is essentially a contract between two people. But since that contract bears the signature of a state representative, it’s also a legal arrangement. Craig Seldin thinks it’s always wisest to work through areas of potential disagreement before getting married. If one or both parties have significant financial assets, a prenuptial agreement can offer protection.

Divorce

Divorce refers to the legal dissolution of the marriage contract. Many issues may need to be addressed when a marriage ends. If children are involved, custody issues are paramount. Assets acquired by the couple during marriage and common debt must also be resolved.

Every state has its own set of statutes and stipulations regarding divorce. Certain fundamental principles underlie them all, however. In Texas, notes lawyer Craig Seldin, there are many different options for divorce such as:

• Do it yourself divorce: Instruction kits are widely available that allow couples to negotiate divorce agreements without legal assistance. These are situations where the divorcing couple often has no children or significant assets. The kit provides a checklist to help the divorcing couple review available options.Craig Seldin supports amicable marriage dissolutions. Nevertheless, he thinks it’s a good idea for a lawyer to vet the paperwork before filing. One or both parties may be giving up rights whose significance they are unaware. A lawyer can point these kinds of things out before the divorce becomes legally binding.
•  Mediated divorce: When divorcing spouses disagree about the disbursement of property, mediation is an option. Mediators are impartial, objective third parties. Their job is to help spouses reach a settlement. Divorcing spouses may retain legal counsel during the mediation process. Divorcing spouses are often able to reach an agreement during mediation, thereby avoiding litigation.
•  Litigated divorce: When a divorce goes to litigation, divorcing spouses can no longer make their own decisions. Instead, these decisions are made by a judge or, in rare    instances, a jury.Litigation may be the only viable option in situations where one of the divorcing spouses refuses to negotiate. The litigation process is generally quite contentious, however, and focuses on the negative. When a divorce goes to trial, points out legal expert Craig Seldin each party focuses on being right. This means that he or she must also focus on proving  that the other spouse is wrong. This can be an extremely negative process, especially  when children are involved.

  The number one cause of conflict between divorcing parents is custody and visitation issues. In Texas, parents are required to provide financial support for their child until he or she turns 18. When child support issues are involved, it’s always a good idea to consult a family law attorney.

Craig Seldin Talks About the Qualities of a Good Family Law Attorney

What kind of person makes a good family law attorney? A good family law attorney is someone who is smart and knowledgeable, but also very empathetic. Family law attorneys help clients through some of the toughest moments of those clients’ lives. Family law involves a great deal of handholding. A good family law attorney also understands the importance of negotiation and compromise.

A first rate family law attorney must have excellent people skills as well as legal expertise. He or she must be able to multitask. A family law attorney is often called upon to juggle many different cases simultaneously. Since so much of their work involves negotiating property settlements, they must understand finances.

Family law attorneys often work as teams within the same practice. Family law attorneys who are working together on the same or related cases will share details with one another. Family law attorneys who are dealing with particularly complex issues will often need to consult other experts in their fields.

In many states, family law attorneys do not need any special certification process to practice family law. However, their academic careers before going to law school generally reflect an interest in interpersonal dynamics. Family law attorneys typically have majored in psychology, sociology or counseling as undergraduates. In law school, they’ve taken elective classes in family law, juvenile practice and alternative dispute resolution.

Often, family law attorneys will have completed one or more family law-focused internships in law school. Other family law attorneys will have clerked for a judge with a large family law related docket.

Family law is a good field for any aspiring attorney, advises veteran lawyer Craig Seldin. The legal field is very competitive right now. However, as the population continues to increase, family-related legal issues will continue to arise. This is particularly true with the increasing number of families that blend different cultures.

Veteran attorney Craig Seldin thinks family law is a challenging but rewarding field. Family law is the area of legal practice that encompasses marriages, divorces, adoptions, custody and property settlements. Family law expert Craig Seldin says divorcing Texas couples have many options available for marital dissolutions. They can do the divorce themselves, they can go through a mediator or they can divorce in court. Seasoned lawyer Craig Seldin says it takes a very special type of person to be a good family law attorney.