author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    BELLSOUTH TELECOMMUNICATIONS, INC., v. CITY OF MEMPHIS, TENNESSEE.
    No. W2003-01047-COA-R3-CV.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    On-Brief Feb. 17, 2004.
    July 12, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 4, 2005.

      Louis F. Allen and Earle J. Schwartz of Memphis; Guy M. Hicks of Nashville; Dorian S. Denburg of Atlanta, Georgia; John E. Muench and Robert M. Dow, Jr. of Chicago, Illinois, for Appellant, BellSouth Telecommunications, Inc.
    Robert L.J. Spence, Jr. and Monika L. Johnson; Allan J. Wade and Lori Hackle-man Patterson of Memphis; Clarence A. West of Austin, Texas, for Appellee, City of Memphis, Tennessee.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which DAVID R. FARMER, J. and HOLLY M. KIRBY, J., joined.

Telecommunications corporation appeals trial court’s grant of summary judgment to city, alleging that trial court incorrectly determined that city ordinance imposing a charge of five percent of gross revenue of the corporation was not inconsistent with T.C.A. § 65-21-103 or any other provision of Tennessee law. We reverse.

This case involves cross-motions for summary judgment filed by the appellant, BellSouth Telecommunications, Inc. (“Bell-South”), and the appellee, the City of Memphis, Tennessee (“the City”), regarding the validity and enforceability of city Ordinance No. 4404. The pertinent factual history is summarized by the parties in their joint stipulations of fact:

2.In January 1879, the Tennessee General Assembly passed the Taxing District Act. Acts Tenn. 1879, Chapter 11, § 1....
3. Pursuant to the Acts of 1879, Chapter 11, Sec. 3, the State of Tennessee made the following grant to the Taxing District of Shelby County (now City of Memphis):
The governing authority shall have the power to repair, and keep in repair, streets, sidewalks and other public grounds and places [in the taxing district]; to open and widen streets, to change the location [of] or to close the same, and to lay off new streets and alleys when necessary; and to have and exercise entire control over all streets and other public property of the Taxing District, as well [as] that within and without the Taxing District.
Acts Tenn. 1879, Chapter 11, Sec. 3; Memphis City Charter Sec. 481.
4. In 1879, the Legislative Council of the Taxing District entered into an agreement with Samuel T. Carnes (“Carnes”)....
5. In 1881, Carnes incorporated Memphis Telephone and Electric Co. and in 1882, Carnes assigned all of the assets of his telephone business to Memphis Telephone & Electric Co. In 1883, Cumberland Telephone & Telegraph Co. (“Cumberland”), a Kentucky corporation, acquired all of the assets of Memphis Telephone & Electric Co.
6. In 1884, the Tennessee General Assembly passed legislation which was codified at Miliken & Vertrees Tennessee Code, Chapter 8, Section 1535 (1884)....
7. In 1885, the Legislature enacted Chapter 66, Acts of 1885 (now codified at T.C.A. § 65-21-105, 106, [and] 201)....
8. In 1891, the Tennessee General Assembly restored the name “City of Memphis” by Acts of 1891, Chapter 229, §§ 1-2....
9. From time to time between 1885 and 1900, Cumberland erected its poles and strung its wires in the City in order to expand its telephone system.
10. In June 1900, the Legislative Council adopted a “Conduit Ordinance!.”]
11. Between 1900 and 1944, the Conduit District established by the Conduit Ordinance was expanded from time to time by resolution of the Legislative Council/Board of Commissioners.
12.On February 25, 1902, the City passed an ordinance charging telephone and telegraph companies doing business in Memphis a pole rental of $8 per pole per year. In June 1902, the City filed suit against Cumberland to collect this pole rental.
14. On July 16, 1903, [t]he City and Cumberland resolved the 1902 litigation in a settlement agreement dated July 16, 1903, signed by Cumberland and the City-
15. In 1907, the Tennessee General Assembly enacted the Talbert Bill, now codified at T.C.A. § 65-21-103.
16. In March 1913, Cumberland agreed by letter to provide additional telephone equipment to the City of Memphis....
17. In 1915, the City of Memphis and Cumberland entered into an agreement concerning the provision of phone service to the City....
18. In 1919, Cumberland agreed to purchase the exchange and assets of the Memphis Telephone Co.
19. In June 1926, Southern Bell Telephone Co. qualified to do business in Tennessee. Cumberland Telephone & Telegraph Co. conveyed all of its property and assets to Southern Bell and ceased doing business.
20. In July and August 1933, there was an exchange of correspondence between Memphis Mayor Watkins Overton and Southern Bell regarding the 1903 ordinance.
21. On June 27, 1944, the Board of Commissioners of the City of Memphis enacted Ordinance No. 427. On July 5, 1944, Southern Bell filed its acceptance of this ordinance....
22. In September 1944, the Railroad and Public Utilities Commission approved the Ordinance.
23. In 1961, the Tennessee General Assembly passed Chapter 123 of the Public Acts of Tennessee 1961, amending T.C.A. [§ ] 65-405. Acts 1961, ch. 123, § 1, codified at T.C.A. § 65-4-105(e).
24. In February 1962, the Board of Commissioners enacted Ordinance No. 954. Southern Bell filed its acceptance of this ordinance....
Any franchise payment or other payment for the use of public streets, alleys or other public places or any license, privilege, occupation or excise tax payment, which after February 24, 1961, may be made by a utility to a municipality or other political subdivision, except such taxes as are presently provided for under existing statutes and except such franchise payment or other payments as are presently exacted from the utility pursuant to the terms of any existing franchise or other agreement, shall, insofar as practicable, be billed pro rata to the utility customers receiving local service within the municipality or political subdivision receiving such payments, and shall not otherwise be considered by the authority in fixing the rates and charges of the utility.
25. In April 1962, the Public Service Commission approved the ordinance.
26. In 1962, the City of Memphis filed a lawsuit seeking to prevent Southern Bell from passing through to its Memphis customers, the fee collected pursuant to the 1962 Ordinance. That lawsuit was resolved by the Sixth Circuit in City of Memphis, Tenn., v. Southern Bell Tel. Co., 316 F.2d 535 (6th Cir.1963).
27. In 1966, the City of Memphis adopted Home Rule pursuant to Art. 11, Sec. 9, of the Tennessee Constitution.
28. South Central Bell Telephone Company was formed in 1968. In May 1968, Southern Bell and South Central Bell entered into a plan of reorganization under which South Central Bell would acquire the assets and liabilities and conduct the business formerly carried on by Southern Bell in Alabama, Kentucky, Louisiana, Mississippi and Tennessee. On July 1, 1968, South Central Bell succeeded to the assets, liabilities and business of Southern Bell Telephone and Telegraph Company located, inter alia, in Memphis, Tennessee.
29. In July 1980, the [Memphis] City Council passed Ordinance No. 3037 on third and final reading. South Central Bell filed its acceptance of Ordinance No. 3037....
30. The City and South Central Bell/BellSouth operated under the 1980 Ordinance until it expired, after a one year extension, in 2001.
31. In December 1991, South Central Bell Telephone Co. changed its corporate name to BellSouth Telecommunications Co., Inc.
32. In 1996, Congress passed the Federal Telecommunications Act of 1996, codified at 42 U.S.C. § 251, et seq.
33. In 1996, the Memphis City Council passed Ordinance No. 4404....
34. In May 2000, and again in June 2001, BellSouth sent two letters to the City of Memphis....
35. In July 2000, the [Memphis] City Council enacted Substitute Ordinance No. 4783 extending Ordinance [No.] 3037 for a term of 12 months or until BellSouth agreed to accept Ordinance No. 4404, whichever was sooner-
36. The City has placed the revenues that it has received under Ordinance No. 3037 and as extended into its General Fund.

The ordinance at the heart of the dispute in this matter, Ordinance No. 4404 (“Ordinance 4404”), mandates that a telecommunications service provider obtain or enter into a franchise agreement with the City for the right “to construct, maintain and operate a telecommunications system [in the public rights-of-way] ... within the City of Memphis.” Pursuant to the franchise agreement, a telecommunications service provider is required to pay to the city as “general compensation,” an amount equal to five percent of the corporation’s “gross revenues for each quarter of a compensation year.... ” The precise language of the ordinance reads in pertinent part as follows:

Sec. 10-78. Grant of franchise.
(1) No person shall acquire, construct, expand, reconstruct, maintain, use and operate in, along, across, on, over, through, above and under the public streets, alleys and rights-of-way of the city, a telecommunications system without first obtaining a non-exclusive, revocable franchise from the city. Except to the extent that the federal or state government acquires or assumes exclusive jurisdiction over the regulation of fiber optic or other telecommunications franchises. Grantee agrees that it shall not now or at any time after a franchise agreement is granted challenge the city’s right to regulate any grantee’s use of the public rights-of-way or to be compensated, as hereinafter provided, for the use of public rights-of-way in any state or federal court. Accordingly, any franchise granted hereunder shall remain in full force and effect as a binding contract between the grantee and the city. Notwithstanding the foregoing[,] [gjrantee is not prohibited from challenging the city’s arbitrary and capricious exercise of its police powers in the regulation of any franchisee’s use of the public rights-of-way hereunder.
(2) Franchise grant conditions, terms.
a. A franchise granted hereunder ... shall be granted only by ordinance ....
b. Grantee shall not provide cable services or operate a cable system as defined in the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C.A. § 521, et seq., as amended) or as recognized by the FCC without first obtaining a separate cable franchise from the city and shall not allow the use of the system by a cable system that has not been granted a franchise by the city. Nor shall any provider of cable services or grantee of cable television service operate or provide a telecommunications franchise pursuant to this division, unless a separate telecommunications franchise is obtained from the city.
Sec. 10-79. Application of other laws....
(2) Subject to police power. The construction, expansion, reconstruction, excavation, use, maintenance and operation of the system shall be subject to all lawful police regulations of the city and performed in accordance with all ordinances, laws, resolutions and regulations of the city for utility location and excavation in public rights-of-way presently in effect or hereafter adopted....
Nothing in this division shall be construed as preventing the City of Memphis, whenever it shall be empowered by applicable state and federal law so to do, from fixing or regulating the rates, rentals, charges, services, facilities and equipment of grantee or from exercising general supervision and regulation of, jurisdiction and control over, a telecommunication franchise, the grantee, and its property, property rights, facilities and franchises located within the city. It being the intention of this division, that the City of Memphis in no way surrenders such general powers it may now have, or may hereafter have or acquire.
Sec. 10-96. General compensation to the city.
(1) General compensation. The city finds that the public streets, alleys and public rights-of-way to be used by grantee in the operation of its system -within the boundaries of the city are valuable, public properties, acquired and maintained by the city at great expense to its taxpayers, and that the grant to grantee of the use of said public street, alleys and public rights-of-way is a valuable property right, without which the grantee would be required to invest substantial capital in public right-of-way costs and acquisitions; the grantee agrees to pay to the city as general compensation during each year of the franchise agreement, an amount equal to five (5) percent of gross revenues for each quarter of a compensation year....
Sec. 10-98. Term of franchise.
(1) Term. Within thirty (30) days after adoption of an ordinance granting a telecommunications franchise pursuant hereto[,] [gjrantee shall execute an agreement accepting this franchise substantially in the form attached hereto as Exhibit “A” [codified as section 10-111]. In the event any such franchise agreement is not executed by a grantee within said thirty (30) days, the award of the telecommunications franchise shall be null and void. Upon execution of a franchise agreement between the city and grantee, a franchise shall be in full force and effect for a term and period of twenty (20) years, ending on the anniversary date of the franchise.

On June 25, 2001, BellSouth filed a nine-count complaint for declaratory relief against the City, seeking to permanently enjoin enforcement of Ordinance 4404 and to declare said ordinance invalid. Bell-South’s complaint alleges, in pertinent part:

DECLARATORY RELIEF
15. BELLSOUTH seeks declaratory relief because the CITY is seeking to enforce Ordinance No. 4404, which BELLSOUTH contends conflicts with existing state and federal law and impinges BELLSOUTH’s constitutional rights. Specifically, the ordinance (a) is preempted under state law, (b) is preempted under federal law, (c) violates the United States and Tennessee Constitutions; and (d) imposes an illegal fee that the CITY has no power to assess.
18. ... By Acts 1905, Ch. 54, MEMPHIS was given the power to enter into franchises only with commercial railroads, street railroads, gas companies, electric light companies, water companies and other quasi-public companies. Telephone and telegraph companies were intentionally omitted from this list of companies to which the CITY could award a franchise because such companies were already entitled to a statewide iranchise. In the case of BELL-SOUTH, it received its statewide franchise in 1885 pursuant to Acts of 1885, Chapter 66 (now codified at T.C.A. § 65-21-201, et seq. and § 65-21-107 as amended).
21. Pursuant to Tennessee Acts of 1885, Chapter 66 (now codified at T.C.A. § 65-21-201, et seq. and § 65-21-105, 106), BELLSOUTH (through its predecessors in interest) was granted a perpetual, statewide franchise in 1885 that extends to BELLSOUTH a right to construct its telephone lines along, upon, above and under the roads or highways within the limits of the [S]tate of Tennessee.
22. BELLSOUTH accepted the statewide franchise by constructing and extending its telephone lines and facilities along, upon, above and under roads and highways within the limits of the State and has relied on the franchise when expending hundreds of millions of dollars necessary for the infrastructure to provide high quality telecommunications service ...
23. BELLSOUTH has, by accepting the statewide grant, obtained a vested contractual and property right to construct its telecommunications lines along, upon, above, under and over the roads and highways within the limits of the State.
25. BELLSOUTH’s statewide franchise is a constitutionally recognized and protected contract, the obligation of which is protected from interference or impairment by the State or its political subdivisions.
26. Ordinance No. 4404 seeks to impose extensive regulatory requirements and fees that go far beyond that which is permitted under BELLSOUTH’s statewide franchise ...
27. Because, and to the extent that, Ordinance No. 4404 purports to impose obligations on BELLSOUTH that conflict with and exceed its obligations under its perpetual statewide franchise, the Ordinance impairs and abrogates BELLSOUTH’s contractual rights in violation of U.S. Const. Art. I, § 10 and Tenn. Const. Art. I, § 20. In addition, it impairs vested property rights, thereby violating due process, U.S. Const, amend. XIV and Tenn. Const. Art I, § 8.
30. T.C.A. § 65-21-103 expressly restricts the fees that municipalities may impose upon telephone companies pursuant to the municipalities’ police powers. Under T.C.A. § 65-21-103, the CITY can supervise BELLSOUTH’s conduct in the public rights-of-way under the CITY’s police power and can recover from BELLSOUTH, the cost of such supervision, but nothing more. Accordingly, any fee or rental that is charged pursuant to a municipality’s police powers must be limited to the cost to the municipality of supervising BELLSOUTH’s use of the municipality’s rights-of-way and cannot be based on a telephone company’s gross revenue.
In Ordinance No. 4404, MEMPHIS purports to impose upon BELLSOUTH a fee based on BELLSOUTH’s gross revenue that is not related to the CITY’s cost of policing the use by BELL-SOUTH of the CITY’s rights-of-way. The gross revenue fee imposed by Ordinance No. 4404 is unlawful because it exceeds the limited range of police powers granted to Tennessee municipalities in regulating telephone companies.
36. The gross revenue fee imposed by Ordinance No. 4404 constitutes a tax under Tennessee law because it is not limited to the fee permitted by T.C.A. § 65-21-103, but was imposed primarily for the purpose of raising general revenue to support the CITY’s operations, and would generate income to MEMPHIS beyond that necessary to compensate MEMPHIS for its police power regulation and management of its public rights-of-way.
37. Because the gross revenue fee imposed by Ordinance No. 4404 constitutes a tax on the privilege of operating as a public utility to conduct a telephone and telecommunications business in MEMPHIS it unlawfully infringes on the exclusive power of the state to impose a privilege tax on public utilities.
42. Because the gross revenue fee imposed by Ordinance No. 4404 attempts to raise general revenues to support generally the CITY’s operations, was imposed primarily for the purpose of raising general revenue to support generally the CITY’s operations in other areas, is not limited to the costs to the CITY of policing BELLSOUTH’S use of the CITY’s public rights-of-way, and would generate income to the CITY beyond that necessary to compensate the CITY for its police power regulation and management of its public rights-of-way, it constitutes an unauthorized and unlawful tax.
47. The Tennessee Legislature has never passed general legislation authorizing MEMPHIS or any other municipality in the [S]tate of Tennessee, to impose on BELLSOUTH or any other telecommunications provider, a general use tax.
48. Because the gross revenue fee imposed by Ordinance No. 4404 attempts to raise general revenues to support generally the CITY’s operations, was imposed primarily for the purpose of raising general revenue to support generally the CITY’s operations in other areas, is not limited to the costs to the CITY of policing BELLSOUTH’s use of the CITY’s public rights-of-way, and would generate income to the CITY beyond that necessary to compensate the CITY for its police power regulation and management of its public rights-of-way, it constitutes an unauthorized and unlawful tax.
56. The Ordinance imposes a third tier scheme of regulation upon BELL-SOUTH that affects BELLSOUTH’s ability to provide the services it is required to provide under the Federal Communications Act of 1934 and the Federal Telecommunications Act of 1996, thereby interfering with interstate and foreign communications by wire and improperly constructing barriers to competition.

The City filed an answer and counter-complaint in response, denying all causes of action and asserting several affirmative defenses, including estoppel and waiver. The City’s counter-complaint sought enforcement of the ordinance, ejectment of BellSouth from the City’s public rights-of-way, and entry of a judgment ordering BellSouth to compensate the City for “underpayments from excluding inter-exchange access fees as well as any other exclusion of revenue from its gross receipts paid to the City,” and further directing BellSouth to “pay for its continued use and occupation of the City’s right of way pursuant to the terms of the 1980 franchise agreement, and that the remaining terms of the 1980 franchise agreement be enforced pending the resolution of this matter.”

On August 24, 2001, the City filed a motion to dismiss pursuant to Tenn. R. Civ. P. 12.02 for failure to state a claim upon which relief can be granted. In April 2002, BellSouth filed an amended complaint adding claims entitled “State Law Preemption Under the 1995 State Act” and “Violation of BellSouth’s Federal Rights Under 42 U.S.C. § 1983 & 1988,” and amending its claim of federal preemption under the Telecommunications Act of 1996.

The parties filed joint stipulations of fact in late July 2002. Soon thereafter, the parties filed cross-motions for summary judgment. A hearing was held on December 20, 2002 on the parties’ motions, joint factual stipulations, affidavits, and memoranda. On March 5, 2003, the trial court entered an order granting the City’s motion for summary judgment and finding as follows:

This cause came on to be heard on December 20, 2002, upon the cross-motions for Summary Judgment filed by the parties, joint factual stipulations, affidavits, memoranda and arguments in open court, from all of which
IT APPEARS that BellSouth’s challenges to certain regulatory provisions in Ordinance No. 4404 have been rendered moot by the City’s enactment of Substitute Ordinance No. 4980, which deleted the following challenged provisions from the City’s Telecommunications Ordinance: §§ 3.1, 3.2D, 22.1, 22.2, 22.3. 22.5, 22.7, 29, 30 and 28 (regarding transfer of franchise at fair market value).
IT FURTHER APPEARS that the parties have agreed to defer argument and disposition of BellSouth’s remaining challenges to the regulatory aspects of Ordinance No. 4404 (and/or to corresponding provisions of Substitute Ordinance No. 4980) until after the appeal of the Court’s ruling set forth in paragraph 1 below.
IT FURTHER APPEARS that the City has stipulated that it is not levying a tax and that it does not have the authority to levy a tax with respect to the use of the City’s Rights-of-Way by telecommunications providers.
IT FURTHER APPEARS that the issue of whether the amount of the fee set forth in City Ordinance No. 4404, as amended by Substitute Ordinance No. 4980, is reasonable is not before the Court; the Court, therefore makes no ruling with respect to that issue.
Based on the foregoing agreements and stipulations of the parties, affidavits, pleadings, arguments of counsel and memoranda of the parties, the Court finds and concludes:
1.That the fee imposed by Ordinance No. 4404 is not in conflict with T.C.A. § 65-21-103 or any other provision of Tennessee law.
2. That this decree is final as to the ruling in paragraph 1 above, and that there is no just reason for delay in the entry of a Final Decree and declaration as to that ruling, and that this Final Decree be entered as a final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, because a final adjudication with respect to that ruling by appellate courts of this state may obviate further proceedings or litigation in this matter.
3. That the costs of this cause are assessed against Plaintiff for which execution may issue.

IT IS SO ORDERED, ADJUDGED AND DECREED.

BellSouth filed a timely notice of appeal of the court’s March 5, 2003 order, and presents for review the sole issue of whether the trial court erred in granting summary judgment in favor of the City on grounds that the “fee imposed by Ordinance No. 4404 is not in conflict with T.C.A. § 65-21-103 or any other provision of Tennessee law.”

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1998), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

The material facts upon which Bell-South’s complaint is based are not disputed by the parties. Our review is therefore limited to a determination of whether the trial court erred, as a matter of law, in concluding that the five percent fee imposed by Ordinance 4404 “is not in conflict with T.C.A. § 65-21-103 or any other provision of Tennessee law.”

Proper review of this issue require us to consider, first, whether the City has the power or right to require BellSouth to enter into a franchise agreement providing for payment of general compensation to the city for use of the public rights-of-way. If the answer is no, no further analysis is required and the trial court’s grant of summary judgment in favor of the City must be reversed. However, if we determine that the City is entitled to require telecommunications service providers such as Bell-South to enter into franchise agreements directing payment of general compensation for use of the public rights-of-way, then we must next consider whether the fee imposed pursuant to Ordinance 4404 is valid.

To briefly reiterate, the Chapter 11, Section 3 of the 1879 Tennessee Acts granted the City the following pertinent powers:

to repair and keep in repair, streets, side-walks, and other public grounds and places in the taxing district; to open and widen streets, to change the location or close the same, and to lay off new streets and alleys when necessary; and to have and exercise entire control over all streets and other public property of the taxing district, as well as that within and without the taxing district. And they shall have power over all other affairs in the taxing districts in which the peace, safety or general welfare of the inhabitants is interested.

(emphasis added).

Approximately six years later, in 1885, the Tennessee General Assembly enacted Chapter 66, Acts of 1885, now codified at T.C.A. §§§ 65-21-105 106, and 201. Section 201 states:

65-21-201. Rights-of-way authorized. — Any person or corporation organized for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof, which may be invented or discovered, may construct, operate, and maintain such telegraph, telephone, or other lines necessary for the speedy transmission of intelligence, along and over the public highways and streets of cities and towns, or across and under the waters, and over any lands or public works belonging to this state, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads, and on and over the bridges, trestles, or structures of such railroads.

Municipalities are endowed with proprietary and governmental powers. See Memphis Power & Light Co. v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817, 820 (1937) (quoting 43 C.J. 179-182); City of Chattanooga v. BellSouth Telecomm., Inc., No. E1999-01573-COA-R3-CV, 2000 WL 122199 (Tenn.Ct.App. Jan.26, 2000) (citing Bristol Tennessee Housing Auth. v. Bristol Gas Corp., 219 Tenn. 194, 407 S.W.2d 681 (1966)). In Memphis Power & Light Co. v. City of Memphis, 172 Tenn. 346, 112 S.W.2d 817 (Tenn.1937), the Tennessee Supreme Court recognized:

While in a general sense the functions of municipal corporations are all of a public nature, it is well recognized and generally established that a municipal corporation acts in, or possesses, a dual capacity [... ] exercising correspondingly twofold functions, two classes of powers, two classes of rights, and two kinds of duties. In one of thesé dual capacities, considered as an agency of the state, the corporation exercises functions and powers, possesses rights, and has imposed upon it duties variously designated as public, legislative, political, or governmental, and acting in this capacity a municipality acts as a sovereignty. In the other of these dual capacities, not considered as an agency of the state, the municipal corporation exercises functions and powers, possesses rights, and has imposed upon it duties variously designated as private, quasi-private, proprietary, business, commercial, ministerial, or merely municipal; and acting in this capacity the municipality acts as a private or quasi-private corporation, enjoying powers and privileges conferred for its own benefit.... [T]he two [classes of powers] are clearly separate and distinct,' and the functions of the corporation in its legislative or governmental capacity should not be confused with its functions in its proprietary capacity....

Id. at 820 (quoting 43 C.J. 179-182).

Control of the public streets and highways of this State resides primarily with the legislature; however, this power may become vested in a municipality where delegated by proper legislative authority. See City of Chattanooga v. Tennessee Elec. Power Co., 172 Tenn. 524, 112 S.W.2d 385, 388 (Tenn.1938) (citations omitted); Lewis v. Nashville Gas & Heating Co., 162 Tenn. 268, 40 S.W.2d 409, 411 (Tenn.1931). Where control of the streets and public rights-of-way is properly delegated and vested in a municipality, “[t]he general rule is that a city or town holds its streets in a proprietary and not a governmental capacity, and its duty to construct and maintain them is a corporate duty and not a governmental function.” City of Nashville v. Brown, 25 Tenn.App. 340, 157 S.W.2d 612, 615 (1941) (citing Fleming v. Memphis, 126 Tenn. 331, 337, 148 S.W. 1057, 42 L.R.A.N.S., 493, Ann. Cas.1913D, 1306; Shepherd v. City of Chattanooga, 168 Tenn. 153, 155-157, 76 S.W.2d 322; City of Knoxville v. Gervin, 169 Tenn. 532, 538, 89 S.W.2d 348, 103 A.L.R. 877; Boyd v. City of Knoxville, 171 Tenn. 401, 405, 104 S.W.2d 419). See also City of Greenfield v. Butts, 582 S.W.2d 80, 83 (Tenn.Ct.App.1979) (citations omitted).

Chapter 11, Section 3 of the 1879 Tennessee Acts granted the City “entire control” over all Memphis streets. In City of Memphis v. Postal Tel. Cable Co., 145 F. 602 (6th Cir.1906), the Sixth Circuit found that 1885 Act did not repeal the power of control of Memphis streets, stating:

... Again, there are certain special reasons for thinking that the Legislature could not have intended to displace the ‘entire control’ of the streets which it had committed to the city. No one doubts, we suppose, that the power to charge a telegraph company with a proportion of the cost of making and keeping in repair and policing a street of the city was lodged somewhere. And if so, no place was so appropriate for lodging it as in the city itself. It alone was obliged to bear the whole cost of maintenance. The share of the cost of maintenance for public use belonged to the city. The share due from the telegraph company for its special use was also due to the city, for the latter was carrying it, and its treasury should be reimbursed. It was a local matter and could be most conveniently attended to by the officials of the municipality who would be best informed of the circumstances and by all analogies the proper persons to assess and collect the charge. It would belong to no other public fund. It was therefore perfectly reasonable that the city should possess the authority to make and collect such a charge, and rather unreasonable that it should be committed to any other depositary of governmental authority. And there is no machinery provided by statute for the levy and collection of such charges by the state, and there was none when the Legislature passed the act of 1885. These seem to us strong reasons for believing that the Legislature had no intention of reserving to the state the power to charge the telegraph company for its proportion of the cost of maintaining the streets of the city of Memphis, but rather that it intended to leave that matter with the authority - to which it had granted the power of control possessed by the state. The grant of ‘entire control’ seems even a more absolute delegation of power than the power ‘to regulate,’ which was held in St. Louis v. Western Union Tel. Co., 148 U.S. 92, 13 Sup.Ct. 485, 37 L.Ed. 380, and 149 U.S. 465, 13 Sup.Ct. 990, 37 L.Ed. 810, to authorize the city of St. Louis to assess and collect a like charge for the use of the streets for the maintenance of the structures of a telegraph company. Indeed that case, if we are right in thinking that the Tennessee Act of 1885 did not deprive the city of the control of its streets in this regard, is ample authority for holding that it had power to levy and collect the charges in question, the reasonableness of them not being now disputed; and the case of Postal Telegraph Co. v. Baltimore, 79 Md. 502, 29 Atl. 819, 24 L.R.A. 161, affirmed by the Supreme Court of the United States in 156 U.S. 210,15 Sup.Ct. 356, 39 L.Ed. 399, is directly in point. See also further discussion of the subject in Western Union Tel. Co. v. Borough of New Hope, 187 U.S. 419, 23 Sup.Ct. 204, 47 L.Ed. 240, and Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U.S. 160, 23 Sup.Ct. 817, 47 L.Ed. 995, and in Western Union Tel. Co. v. Pennsylvania R.R. Co., 195 U.S. 540, 25 Sup.Ct. 133, 49 L.Ed. 312.

Id. at 605-606 (emphasis added).

The court specifically noted that the responsibility of the companies was the relative cost to the city and that was a matter under its public power. Although control of Memphis streets and public rights-of-way was properly delegated to the City pursuant to Chapter 11, Section 3 of the 1879 Tennessee Acts, this control is to be exercised with recognition of the state’s grant to the telecommunication provider.

In considering whether the City is entitled to require BellSouth to enter into a franchise agreement for use of the streets and public rights-of-way, we note that Chapter 66 of the Tennessee Acts of 1885, now codified in part at T.C.A. § 65-21-201, gave telephone and telegraph companies a right to construct, maintain, and operate lines “along and over the public highways and streets of cities and towns ... and on and over the lands of private individuals .... ” The legislature created in telephone companies a property right in the streets and public rights-of-way via the enactment of Chapter 66 (T.C.A. § 65-21-201) see City of Chattanooga v. Tennessee Elec. Power Co., 172 Tenn. 524,112 S.W.2d 385, 390 (Tenn.1938) (“A right of way upon a public street, whether granted by act of the legislature, or ordinance of city council, or in any other valid mode, is an easement, and as such is a property right, capable of assignment, sale, and mortgage, and entitled to all the constitutional protection afforded other property rights and contracts”) (citations omitted).

BellSouth asserts that the City’s ordinance is not authorized by virtue of the 1907 Act codified as T.C.A. § 65-21-103:

65-21-103. Local regulation.— While any village or city within which such [telegraph or telephone] line may be constructed shall have all reasonable police powers to regulate the construction, maintenance, or operation of such line within its limits, including the right to exact rentals for the use of its streets and to limit the rates to be charged; provided, that such rentals and limitations as to rates are reasonable and imposed upon all telephone and telegraph companies without discrimination. No village, town, or city shall have the right to prevent the company from constructing, maintaining, and operating the line within the village, town, or city, so long as the line is being constructed, maintained, or operated within the village, town, or city, in accordance with the reasonable police regulations.

BellSouth challenges the “reasonableness” of the five percent gross revenue charge on two grounds, including (1) that the fee does not bear a reasonable relation to the City’s regulatory costs, and (2) that the fee constitutes an unlawful tax.

This Court recently considered a case somewhat analogous to the case before us. In City of Chattanooga v. BellSouth Telecommunications, Inc., No. E1999-01573-COA-R3-CV, 2000 WL 122199 (Tenn.Ct.App. Jan.26, 2000), the Court considered the appeal of the trial court’s judgment in a declaratory judgment action, declaring that the city ordinance was invalid. The ordinance in question required anyone attempting to provide telecommunication services within the City of Chattanooga would obtain a franchise from the city and would pay a franchise fee of “five percent of its gross revenue to the city each year.” This Court, in holding the ordinance invalid because it was not a reasonable exercise of the city’s police powers, reversed the trial court. The Court noted that T.C.A. § 65-21-103 permits the city to exercise a rental for the use of the right-of-way under its governmental or police powers and that the city argued that the rental, as used in the statute, would allow for revenue above the mere compensation. To this argument, the Court said:

The City’s urged construction of the term “rental” to allow for revenue above mere “compensation”, would enable the City to exact the same charge in its exercise of its police powers as it can in the exercise of its proprietary powers, thereby rendering meaningless our Supreme Court’s decisions making the distinction. In Porter, v. City of Paris, [184 Tenn. 555, 201 S.W.2d 688] the Supreme Court held under the City’s police powers, the fee imposed must “bear a reasonable relation to the thing being accomplished.” 201 S.W.2d at 691. Recently, the Court defined “fee” as that which is “imposed for the purpose of regulating specific activity or defraying the cost of providing a service or benefit to the party paying the fee.” City of Tullahoma v. Bedford County, 938 S.W.2d 408 (Tenn.1997).

The City does have the right to be reimbursed for the added cost of repaving more frequently. In Porter, the Court said:

The fact, that the fees charged produce more than the actual cost and expense of enforcement and supervision, is not an adequate objection to the exaction of the fees. The charge made, however, must bear a reasonable relation to the thing being accomplished. (Emphasis supplied).

201 S.W.2d 688, 691. Thus, while the City may charge a fee beyond the mere repair of its rights-of-way, such fees must bear a reasonable relation to the cost to the City. There is no evidence to support the proposition that the 5% fee will “bear a reasonable relation” to the use of the rights-of-way.

Id. at *3, 4.

We next address BellSouth’s argument that the five percent gross revenue charge is an unlawful tax. In City of Tullahoma v. Bedford County, 938 S.W.2d 408 (Tenn.1997), the Tennessee Supreme Court distinguished a tax from a fee, noting:

A tax is a revenue raising measure levied for the purpose of paying the government’s general debts and liabilities. Memphis Retail Liquor Dealers’ Ass’n v. City of Memphis, 547 S.W.2d 244, 245-46 (Tenn.1977). See City of Knoxville v. Lee, 159 Tenn. 619, 623, 21 S.W.2d 628, 629-30 (1929); 16 Eugene McQuillin, The Law of Municipal Corporations § 44.02 (rev.3d ed.1994). A fee is imposed for the purpose of regulating a specific activity or defraying the cost of providing a service or benefit to the party paying the fee. Memphis Retail Liquor Dealers’ Ass’n v. City of Memphis, 547 S.W.2d at 246; Wetzel Solid Waste Authority v. [West Virginia] Division of Natural Resources, 195 W.Va. 1, 462 S.E.2d 349, 353-54 (1995); Brewster v. City of Pocatello, 115 Idaho 502, 768 P.2d 765, 768 (1988); Crocker v. Finley, 99 III.2d 444, 77 IlI.Dec. 97, 459 N.E.2d 1346, 1349-50 (1984); Emerson College v. City of Boston, 391 Mass. 415, 462 N.E.2d 1098,1105 (1984).

Id. at 412.

It is undisputed that the City is prohibited from imposing taxes upon public utilities, including telephone service providers. See T.C.A. §§ 67-4-401, 406.

The franchise agreement set forth by Ordinance 4404 requires BellSouth to pay to the City, “as general compensation during each year of the franchise agreement, an amount equal to five (5) percent of gross revenues for each quarter of a compensation year.... ” The stated purpose for the general compensation provision is set forth as follows:

(1) General compensation. The city finds that the public streets, alleys and public rights-of-way to be used by grantee in the operation of its system within the boundaries of the city are valuable, public properties, acquired and maintained by the city at great expense to its taxpayers, and that the grant to grantee of the use of said public street, alleys and public rights-of-way is a valuable property right, without which the grantee would be required to invest substantial capital in public right-of-way costs and acquisitions; the grantee agrees to pay to the city as general compensation during each year of the franchise agreement, an amount equal to five (5) percent of gross revenues for each quarter of a compensation year....

We note that the City acknowledged in its answers to BellSouth’s interrogatories that it placed revenue generated under Ordinance 3037 into a General Fund for use in funding various critical services. The City’s response, stated in pertinent part below, further indicated that revenue generated pursuant to any franchise agreement is placed in the City’s General Fund:

INTERROGATORY NO. 2: State whether the City can account for the use of the revenues that it received from BellSouth in any year in which Ordinance No. 3037 was in effect, including the extension period.
RESPONSE: The City objects to Interrogatory No. 2 on the basis that it is vague, overbroad and overburdensome. Without waiving said objections, the City responds that the revenues received pursuant to any franchise ayreement with any telecommunications provider doiny business within the corporate limits of the City are placed in the City’s General Fund, and used to fund various public services, such as public works projects, police and fire protection, parks, libraries, youth proyrams, and buildiny maintenance.

(emphasis added).

As we previously pointed out, the Court in City of Chattanooga v. BellSouth Telecomm., Inc., No. E1999-01573-COA-R3-CV, 2000 WL 122199 (Tenn.Ct.App. Jan.26, 2000) held, inter alia, that an ordinance requiring telecommunications service providers to pay a franchise fee of five percent of their gross revenue was not “a reasonable exercise of the City’s police powers” under T.C.A. § 65-21-103. Id. at *4. The Court specifically rejected the City’s argument that the term “rental,” as used in the aforementioned statute, was “not limited to the cost of regulation, but allows generation of revenue in excess of regulation without constituting a tax.” Thus, the fee in question could properly be termed a tax.

Although the City of Chattanooga Court recognized that a municipality has authority to act, either in its proprietary capacity or its governmental capacity, the court did not attempt to enunciate that the municipality’s authority to act in light of the 1885 and 1907 Acts would be restricted to purported municipal acts in its proprietary capacity. To the contrary, the 1885 Act merely grants to the telecommunication providers the right to use the streets, etc., of the municipality for the purpose of transmitting its signals. The 1907 Act delineates the authority of municipalities in dealing with the carrier and limits the charges to what is reasonably necessary for the supervision and regulation of its use. This Court aptly pointed out that to construe the term “rental” to allow for revenue above mere “compensation” would enable the City to exact the same charge in its exercise of police powers as it can in the exercise of its proprietary powers, thereby rendering meaningless our Supreme Court’s decisions in making the distinction. City of Chattanooga at *3.

In the instant case, the City recognizes that it has no authority to tax BellSouth, and argues its five percent fee is a fee and not a tax. However, the record indicates that the revenue derived from such a fee is allocated to different city functions and apparently bears no relation to the cost to the City in supervising and regulating the use of BellSouth’s rights-of-way. The fee charged by the City under its police power must bear a reasonable relation of the cost to the City for the use and maintenance of the rights-of-way. On its face, the percentage of gross profits bears no relation to the cost to the City. Therefore, some proof is necessary to establish such a relationship.

Accordingly, we find that the ordinance enacted by the City is invalid as contrary to the state statutes, and the judgment of the trial court is reversed. City also has argued estoppel and waiver, but our review of the record in this case indicates that neither of these theories are applicable. Costs of the appeal are assessed to the City of Memphis.

      . 1885 Tennessee Public Acts 66, § 1 stated: Be it enacted by the General Assembly of

        the State of Tennessee, That any person or corporation organized by virtue of the laws of this State, or of any other State of the United States, or by virtue of the laws of the United States, for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence the equivalent thereof, which may be hereafter invented or discovered, may construct, operate and maintain such telegraph, telephone, or other lines necessary for the speedy transmission of intelligence, along and over the public highways and streets of the cities and towns of this State, or across and under the waters, and over any lands or public works belonging to this State, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads or turnpikes of this State, and on and over the bridges, trestles, or structures of said railroads; Provided, that the ordinary use of such public highways, streets, works, railroads, bridges, trestles or structures and turnpikes be not thereby obstructed, or the navigation of said waters impeded, and that just damages shall be paid to the owners of such lands, railroads, turnpikes, by reason of the occupation of said lands, railroads and turnpikes, by said telegraph or telephone corporations.
      (emphasis in original).

      . This ordinance created a "Conduit District” wherein telephone and telegraph service providers were prohibited from "constructing such wire lines or any of their poles or appurtenances above the ground in passing along or across such public thoroughfares within the limits to be known as the ‘Conduit District’ ”...

      . The 1907 act was codified at T.C.A. §§ 65-21-101, 103 (1993). Section 65-21-101 states:
      65-21-101. Special powers of corporations. — Telegraph and telephone corporations may construct a telegraph or telephone line and erect the necessary fixtures along, or over, or under the line of any public highway, the streets of any village, town, or city, across, or over, or under rivers, or any land belonging to the state, or along, across, or under county roads, and also over the lands of private individuals in pursuance of the general law authorizing the condemnation of the easement of right of way for works of internal improvement as set forth in title 29, chapter 16; provided, that the ordinary use of such public highway, streets, or county road be not thereby obstructed or the navigation of such waters impeded.
      Section 65-21-103 further provides:
      65-21-103. Local regulation. — While any village or city within which such [telegraph or telephone] line may be constructed shall have all reasonable police powers to regulate the construction, maintenance, or operation of such line within its limits, including the right to exact rentals for the use of its streets and to limit the rates to be charged; provided, that such rentals and limitations as to rates are reasonable and imposed upon all telephone and telegraph companies without discrimination. No village, town, or city shall have the right to prevent the company from constructing, maintaining, and operating the line within the village, town, or city, so long as the line is being constructed, maintained, or operated within the village, town, or city, in accordance with the reasonable police regulations.

      .Ordinance No. 427 provided, in pertinent part:
      SECTION 1. BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF MEMPHIS, that the Southern Bell Telephone and Telegraph Company ... be and is hereby granted the privilege to erect, construct, maintain, and operate telephone and telegraph lines, including poles, conduits, cables, fixtures, electrical conductors, and other appurtenances, upon, along, under and over the streets, alleys and other public thoroughfares within the present or future corporate limits of the City of Memphis, for a period of eighteen (18) years, beginning July 1, 1944, and ending June 30, 1962, upon the terms and subject to the conditions and limitations of this ordinance.
      SECTION 2. BE IT IS FURTHER ORDAINED, that in consideration for the privilege herein granted the Southern Bell Telephone and Telegraph Company shall pay to the City of Memphis during said period, a sum equal to four (4%) per cent for the first ten years of said period, and a sum equal to five (5%) per cent for the last eight years of said period, on all gross receipts accruing to its office or offices in Memphis of every kind and character, and from every source, without any deductions, excepting only gross receipts from interstate toll business.

      . Tennessee Code Annotated § 65-4-105(e) (1993) states:

      . Ordinance No. 954 established a franchise agreement between the City and BellSouth for the period from July 1, 1962 through June 30, 1980. The ordinance granted BellSouth the "privilege to construct, maintain and operate telephone and telegraph lines ... upon, along, under and over the streets, alleys and other public thoroughfares within the present or future corporate limits of the City of Memphis....” Pursuant to the ordinance, Bell-South agreed to pay to the City "a sum equal to five percent (5%) on all gross receipts accruing to its office or offices in Memphis of every kind and character from the telephone subscribers located within the present or future corporate limits of the City of Memphis. ...”

      . Ordinance No. 3037 established a franchise agreement granting BellSouth "the privilege to erect, construct, maintain, and operate telephone and telegraph lines ... upon, along, under and over the streets, alleys and other public thoroughfares, within the present or future corporate limits of the City of Memphis. ...” The agreement, which extended for a period of twenty years from July 1, 1980 through June 30, 2000, provided that Bell-South "shall pay [to] the City of Memphis during said period a sum equal to five percent (5%) on all gross receipts of every kind and character from the furnishing of telephone service to subscribers located within the present or future corporation limits of the City of Memphis....”


source: Caselaw Access Project

author: JOSEPH M. TIPTON, J.,

license: Public Domain

text:
    Dorian Soriano BAUTISTA v. STATE of Tennessee.
    Court of Criminal Appeals of Tennessee, at Nashville.
    July 21, 2004 Session.
    Sept. 21, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 18, 2005.

      S. Jason Whatley, Columbia, Tennessee, for the appellant, Dorian Soriano Bautista.
    Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel; William Michael McCown, District Attorney General; and Michael David Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

JOSEPH M. TIPTON, J.,

delivered the opinion of the court,

in which NORMA MCGEE OGLE and ROBERT W. WEDEMEYER, JJ., joined.

The petitioner, Dorian Soriano Bautista, appeals from the Bedford County Circuit Court’s dismissal of his petition for post-conviction relief from his conviction for theft over one thousand dollars, a Class D felony. He contends that he received the ineffective assistance of counsel because his attorneys failed to explain to him the adverse consequences that his guilty plea and conviction could have on his resident alien status, which led to his deportation. We affirm the trial court.

This case arises from the petitioner’s theft of a car wheel and tires. On June 14, 2001, the petitioner pled guilty and the state summarized the evidence against the petitioner as follows:

Your Honor, the State’s proof would show that on March the 3rd of this year a civilian or citizen witness basically saw the defendant stealing wheels off a car at the Clarence Lamb Car Lot. And apparently when the defendant sort of realized he was being watched, he took off, went across to Kroger’s across the street through the parking lot there. Kind of kept up with him [sic]. The police were contacted, and stopped him just a short distance nearby. And he was in a truck. And the stolen wheel and tires were in the back. So, basically caught in the act.

The trial court, after receiving the state’s proffer, informed the petitioner of his constitutional right (1) to a jury trial, (2) to force the state to prove every element of the crime beyond a reasonable doubt, (3) to confront and cross-examine witnesses called against him, (4) to remain silent or to testify at trial, (5) to have the assistance of counsel, (6) to call witnesses on his own behalf, and (7) to have the court issue subpoenas compelling the attendance of witnesses. The trial court then informed the petitioner that if he were convicted by a jury, he would have the right to a sentencing hearing and to appeal his conviction. The trial court explained to the petitioner that the crime for which he had been charged carried with it a potential sentence of two to twelve years. The trial court asked the petitioner whether he was under the influence of any intoxicant, and when the petitioner replied that he was not, the following exchange occurred:

THE COURT: Okay. Mr. Bautista ... [did] anybody promise you anything to get you to take the deal?
[THE PETITIONER]: No, sir.
THE COURT: Anybody threaten you in any way to get you to take the deal? [THE PETITIONER]: No, sir.
THE COURT: Okay. As far as you are concerned, was the plea bargain arrangement free and voluntary?
[THE PETITIONER]: Yes, sir.

The trial court found that the petitioner’s guilty plea was knowing and voluntary, and it accepted the petitioner’s plea. At the sentencing hearing, the trial court imposed a sentence of two years and one month, which it suspended, placing the petitioner on probation. As the petitioner was leaving the courthouse, an agent of the Immigration and Naturalization Service (INS) arrested him and charged him with being subject to removal from the United States pursuant to federal law for having been convicted of “an aggravated felony” as defined in the Immigration and Nationality Act. The INS thereafter transported the petitioner to the Oakdale Federal Detention Center in Louisiana to await deportation proceedings.

The petitioner sought post-conviction relief, claiming that he received the ineffective assistance of counsel which prevented him from entering a knowing and voluntary guilty plea. Specifically, the petitioner alleged his court appointed counsel failed to inform him of the effect his guilty plea would have on his resident alien status. The petitioner alleged that had he known of such adverse consequences, he would have proceeded to trial.

The petitioner was unable to attend the post-conviction hearing in this matter because he was detained in Louisiana awaiting deportation, but the petitioner’s post-conviction counsel and an assistant district attorney general took his deposition by telephone. The deposition was introduced as evidence at the petitioner’s post-conviction hearing. A transcript of the deposition was included in the record, but a transcript of the remainder of the hearing is absent. We note that the court reporter failed to produce the post-conviction hearing transcript and was subsequently found in contempt of court and incarcerated. However, the petitioner’s post-conviction counsel and the district attorney general’s office filed an agreed “statement of the evidence.” See T.R.A.P. 24(c).

The petitioner testified that he is a permanent resident alien residing in the United States since 1993, that he graduated from Shelbyville Central High School where he learned to speak fluent English, and that he was intending upon applying for United States citizenship. Regarding the charges against him in Bedford County, he said that in return for his guilty plea to theft over one thousand dollars, the state had dropped misdemeanor charges against him for weapon possession and criminal trespass.

The petitioner testified that his public defenders, who he characterized as a “blonde man with glasses” and a woman, never told him that he could be deported to Mexico based upon his guilty plea to theft over one thousand dollars. He said that he was unaware whether the charges against him were misdemeanors or felonies but he knew that some were more serious than others. He said that on the day of the guilty plea, he was taken into custody for failure to comply with a court order to pay fees to his court-appointed lawyers. He said that while he was in detention, a male public defender told him his only options were to plead guilty and get probation or to go to trial and serve two years and one month in the Department of Correction. He said neither of his court-appointed attorneys discussed the possibility of pretrial or judicial diversion with him prior to his guilty plea. He said that had he known pleading guilty to the theft charge would have resulted in his deportation, he would never have agreed to the plea bargain. He said he would have instead proceeded to trial in order to contest the state’s proof regarding the value of the stolen property.

An Assistant Public Defender met with him on two occasions: at the petitioner’s arraignment and at the public defender’s office. He said he discussed with the petitioner the state’s response to the petitioner’s discovery request, and he said they discussed the petitioner’s version of the events. He said that he also discussed with the petitioner the nature of the charges against him and the punishment he could receive. He said that during the discussion of punishment, the petitioner admitted his guilt and told him he was only concerned with avoiding incarceration. The attorney said that although he was not physically present on the date of the plea hearing, he had conducted the plea negotiations with the state. He said the agreement with the state provided that the petitioner would be placed on probation if the presentence report was favorable. He acknowledged he was aware of the petitioner’s status as a resident alien during the plea negotiation process.

The District Public Defender testified that she represented the petitioner at his plea hearing on June 14, 2001. She said she had familiarized herself with the petitioner’s case by discussing it with co-counsel before the hearing. She said he told her of the plea agreement reached with the state. She said she met with the petitioner before the hearing and reviewed the plea agreement paperwork with him. She said that at that time, she asked the petitioner if he had any questions and that his only concern was avoiding incarceration. She said the petitioner did not ask her about potential deportation issues. She testified that she was also aware of the petitioner’s immigration status before the entry of his guilty plea.

After reading the petitioner’s deposition and listening to the testimony of the witnesses at the post-conviction hearing, the trial court dismissed the petition for post-conviction relief because it found that the petitioner perjured himself and because the petitioner’s claims of ineffective assistance of counsel were based only upon a failure of appointed counsel to inform him of a collateral consequence of his guilty plea. The trial court held that the failure did not violate the petitioner’s right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution.

The petitioner contends that the trial court erred in denying his petition for post-conviction relief because of the failure of counsel to inform him that his guilty plea to theft over one thousand dollars could result in his deportation to Mexico. The issue on appeal is whether such a failure is a violation of the right to the effective assistance of counsel under the Sixth Amendment. In support of his argument, which he alleges constitutes one of first impression in Tennessee, the petitioner cites as persuasive authority numerous cases from other jurisdictions holding that such a failure constitutes the ineffective assistance of counsel because of the drastic and punitive nature of deportation. The state claims that an attorney’s failure to inform a client of potential issues involving deportation is a collateral issue, and as such, it does not constitute the ineffective assistance of counsel. In support of this argument, the state’s brief is replete with quotes, cites, and analysis from what it claims is a 1995 Tennessee Supreme Court case but is in fact a 1994 Tennessee Court of Criminal Appeals case. See Adkins v. State, 911 S.W.2d 334 (Tenn.Crim.App.1994). Although the state concludes its argument by pointing out that “this court is simply not authorized to find in petitioner’s favor,” we note that the Adkins language relied on by the state was dicta. See id. at 350-51. However, for reasons which we address below, we agree with the state and affirm the trial court’s dismissal of the petition for post-conviction relief.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds for relief by clear and convincing evidence. T.C.A. § 40-30-110© (2003). On appeal, we are bound by the trial court’s findings of fact unless we conclude that the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn.2001). Because they relate to mixed questions of law and fact, we review the trial court’s conclusions as to whether counsel’s performance was deficient and whether that deficiency was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S.Ct. 838, 842-44, 122 L.Ed.2d 180 (1993). In other words, a showing that counsel’s performance falls below a reasonable standard is not enough; rather, the petitioner must also show that but for the substandard performance, “the result of the proceeding would have been different.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. When a petitioner pleads guilty, he must show a reasonable probability that, but for the errors of his counsel, he would not have pled guilty. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Adkins, 911 S.W.2d at 349.

When the petitioner’s claim is one of inadequate advice, courts generally distinguish between failure to inform of direct and indirect consequences of a guilty plea. Failure by counsel to inform of direct consequences of a guilty plea may constitute ineffective assistance of counsel. On the other hand, failure to inform of indirect consequences of a guilty plea normally does not. Adkins, 911 S.W.2d at 350. This distinction “turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. (quoting Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir.1988)).

In Adkins, this court stated,

Any failure of counsel to advise as to any collateral consequences of a plea does not, under these authorities, fall below the range of competence demanded of attorneys in criminal cases. Mis-advice on the issue might have warranted relief; and, while a fine distinction, silence by counsel does not. In short, a sin of commission might merit relief while the sin of omission does not.

911 S.W.2d at 350. One of the authorities the court cited as an example of a collateral consequence was United States v. Del Rosario, 902 F.2d 55, 59 (D.C.Cir.1990). The Del Rosario court held that “trial counsel’s failure to advise a defendant of the collateral consequence of a plea of guilty affecting the possibility of the deportation of the defendant[] does not fall short of the ‘objective standard of reasonableness,’ ... under Strickland.” 902 F.2d at 59.

The petitioner urges this court to hold that failure to inform a defendant of the potential consequences of deportation constitutes ineffective assistance of counsel and cites cases from Illinois and Pennsylvania as representative of a modern trend. See People v. Correa, 108 III.2d 541, 92 IlI.Dec. 496, 485 N.E.2d 307 (1985); Commonwealth v. Wellington, 305 Pa.Super. 24, 451 A.2d 223 (1982). In Correa, the court held the defendant received ineffective assistance of counsel because he specifically asked his counsel about potential deportation consequences and received erroneous advice. However, in People v. Huante, 143 III.2d 61, 156 IlI.Dec. 756, 571 N.E.2d 736 (1991), the Illinois Supreme Court distinguished the Correa decision and held that “the passive conduct of counsel in failing to discuss with a defendant the collateral consequences of a guilty plea” did not constitute the ineffective assistance of counsel. 571 N.E.2d at 739.

In Wellington, the court held the failure to advise a defendant that a conviction could render her subject to deportation constituted ineffective assistance of counsel. 451 A.2d at 225. However, the Pennsylvania Supreme Court disapproved of this holding in Commonwealth v. Frometa, 520 Pa. 552, 555 A.2d 92, 94 n. 2 (1989). In so doing, the court noted that its decision was

in line with a majority of state and federal courts. See, Tafoya v. State, 500 P.2d 247 (Alaska 1972) cert. den. 410 U.S. 945, 93 S.Ct. 1389, 35 L.Ed.2d 611 (failure to inform an alien defendant of the possibility of deportation does not constitute ineffective assistance); State v. Malik, 37 Wash.App. 414, 680 P.2d 770 (1984) (it is not incumbant upon defense counsel to explain the collateral consequence of deportation to criminal defendant); State v. Chung, 210 N.J.Super. 427, 510 A.2d 72 (1986) (defense counsel need only advise a criminal defendant of the direct consequences of pleading guilty); State v. Ginebra, 511 So.2d 960 (Fla.1987) (failure of counsel to inform of the collateral consequences of deportation does not undermine guilty plea); Mott v. State, 407 N.W.2d 581 (Iowa 1987) (failure to advise a criminal defendant of the collateral consequences, even “serious ones” like deportation can not be the basis of an ineffectiveness claim); State v. Santos, 136 Wis.2d 528, 401 N.W.2d 856 (1987) (knowledge of the collateral consequences is not a prerequisite to a knowing and intelligent plea). See also, United States v. Santelises, 476 F.2d 787 (2d Cir.1973); United States v. Romero-Vilca, 850 F.2d 177 (3d Cir.1988); United States v. Campbell, 778 F.2d 764 (11th Cir.1985); LaPorta v. United States, 651 F.Supp. 884 (E.D.Pa. 1986). See generally, 65 A.L.R.4th 719 (1988).

We agree with the decisions of the Illinois and Pennsylvania Supreme Courts and hold that failure to inform a defendant of potential consequences of deportation does not constitute ineffective assistance of counsel under Strickland because it has no definite, immediate, and largely automatic effect on the range of the defendant’s punishment. We decline at this time to address the question posed to the court in Correa concerning erroneous advice in the deportation context, except to note that this court has distinguished between erroneous advice and failure to inform. See Adkins, 911 S.W.2d at 350.

In the present case, the record reflects that neither of the petitioner’s attorneys advised him concerning potential deportation issues, and it also indicates they did not misinform him. Although they were both aware of the fact that the petitioner was a resident alien, they failed to discuss potential deportation issues with him. Based upon the foregoing authorities, we hold that the failure to discuss with the petitioner potential deportation ramifications from his conviction did not render their performance as the petitioner’s counsel deficient. We affirm the judgment of the trial court.


text:
    In the Interest of K.A.F., a child.
    No. 04-0493.
    Supreme Court of Texas.
    Argued Feb. 16, 2005.
    Decided April 8, 2005.
    Rehearing Denied May 13, 2005.
    Clinard J. Hanby, Robert B. Kalish, Laura Kalish, The Woodlands, Bruce K. Thomas, Law Office of Bruce K. Thomas, Dallas, for petitioner Susan Carroll Capps.

      Ronnie Jo Cohee, Richard J. Clarkson, Beaumont, for respondent Louis Fau-cheaux.
    Rod J. Paasch, Nederland, for other interested party K.A.F.
   Justice O’NEILL delivered the opinion of the Court.

In this case, we must decide whether the rules of appellate procedure permit post-judgment motions to extend the appellate deadline for filing an accelerated appeal. We hold that they do not. We further hold that filing a motion for new trial may not be considered a bona fide attempt to invoke the appellate court’s jurisdiction. Accordingly, we affirm the court of appeals’ judgment.

I

Louis Faucheaux petitioned the trial court to involuntarily terminate Susan Carroll’s parental rights to their daughter, K.A.F. The jury found that Carroll’s rights should be terminated, and the trial court signed a final order of termination on November 3, 2003. On November 10, 2003, Carroll filed a “Motion for New Trial: Alternatively, Motion to Modify the Judgment,” which the trial court denied a week later. Carroll filed a notice of appeal on January 16, 2004, seventy-four days after the trial court signed its final order.

The court of appeals dismissed the appeal for want of jurisdiction, holding that, because Carroll’s notice of appeal was filed more than twenty days after the judgment was signed, the notice was untimely under Texas Rule of Appellate Procedure 26.1(b), which governs accelerated appeals and applies to parental rights termination cases. — S.W.3d-■,-, 2004 WL 527024, *1. We granted Carroll’s petition for review to determine whether the court of appeals’ dismissal was proper.

II

Texas Rule of Appellate Procedure 26.1 sets out the time to perfect an appeal in civil cases:

RULE 26. TIME TO PERFECT APPEAL
26.1. Civil Cases
The notice of appeal must be filed within 30 days after the judgment is signed, except as follows:
(a) the notice of appeal must be filed within 90 days after the judgment is signed if any party timely files:
(1) a motion for new trial;
(2) a motion to modify the judgment;
(3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or
(4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court;
(b) in an accelerated appeal, the notice of appeal must be filed within 20 days after the judgment or order is signed;
(c) in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed; and
(d) if any party timely files a notice of appeal, another party may file a notice of appeal within the applicable period stated above or 14 days after the first filed notice of appeal, whichever is later.

Tex.R.App. P. 26.1. With this rule in place, the Legislature enacted section 109.002 of the Family Code, which provides in pertinent part:

An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination of the parent-child relationship is in issue.

Tex. Fam.Code § 109.002(a). Thus, rule 26.1(b) applies to an appeal in a parental rights termination case and requires that the notice of appeal be filed within twenty days after a judgment or order is signed. Tex.R.App. P. 26.1(b).

Carroll argues, however, that although rule 26.1(b) governs accelerated appeals and sets a twenty-day deadline, rule 26.1(a) should operate to extend the filing deadline to ninety days, even in an accelerated appeal, when a timely motion to modify the judgment is filed. To support her interpretation, Carroll cites rules 28.1 and 28.2, which provide that appeals from interlocutory orders and quo warranto proceedings are accelerated and that “[fjiling a motion for new trial will not extend the time to perfect the appeal.” Tex.R.App. P. 28.1, 28.2. From this language, Carroll infers that filing one of the other post-judgment motions listed in rule 26.1(a), like a motion to modify the judgment, will extend the time to perfect an appeal from those two types of judgments. Carroll then argues that a similar rule should apply to other types of accelerated appeals and that her timely filed motion to modify the judgment thus extended the appellate deadline to ninety days.

We find this argument unpersuasive for several reasons. First, the language of rule 26.1(b) is clear and contains no exceptions to the twenty-day deadline. Second, rules 28.1 and 28.2 specifically apply only to interlocutory orders and quo warranto proceedings, respectively. Finally, as discussed below, before the procedural rules were amended in 1997, it was clear that there was no exception to the accelerated-appeal deadline, and we find no indication that such a major change was intended.

Prior to 1997, the deadlines for perfecting ordinary and accelerated appeals were governed by different rules. Rule 41, governing ordinary appeals, provided:

RULE 41. ORDINARY APPEAL— WHEN PERFECTED
(a) Appeals in Civil Cases.
(1) Time to Perfect Appeal. When security for costs on appeal is required, the bond or affidavit in lieu thereof shall be filed with the clerk within thirty days after the judgment is signed, or, within ninety days after the judgment is signed if a timely motion for new trial has been filed by any party or if any party has timely filed a request for findings of fact and conclusions of law in a case tried without a jury. If a deposit of cash is made in lieu of bond, the same shall be made within the same period.

Former Tex.R.App. P. 41(a)(1) (1986, amended 1997). Despite the rule’s specific reference to motions for new trial and requests for findings of fact and conclusions of law, the courts of appeals were almost entirely uniform in holding that any motion requesting a substantive change in the judgment would operate to extend the appellate timetable. Ramirez v. Williams Bros. Constr. Co., 870 S.W.2d 551, 552 (Tex.App.-Houston [1st Dist.] 1993, no writ) (per curiam) (citing U.S. Fire Ins. Co. v. State, 843 S.W.2d 283, 284 (Tex.App.-Austin 1992, writ denied), Miller Brewing Co. v. Villarreal, 822 S.W.2d 177, 179 (Tex.App.-San Antonio 1991), rev’d on other grounds, 829 S.W.2d 770 (Tex.1992), Home Owners Funding Corp. v. Scheppler, 815 S.W.2d 884, 887 (Tex.App.-Corpus Christi 1991, no writ), and Brazos Elec. Power Coop., Inc. v. Callejo, 734 S.W.2d 126, 129 (Tex.App.-Dallas 1987, no writ)). Contra First Freeport Nat’l Bank v. Brazoswood Nat’l Bank, 712 S.W.2d 168, 170 (Tex.App.-Houston [14th Dist.] 1986, no writ).

Rule 42, which governed accelerated appeals, provided:

RULE 42. ACCELERATED APPEALS IN CIVIL CASES
(a) Mandatory Acceleration.
(1) Appeals from interlocutory orders (when allowed by law) shall be accelerated. In appeals from interlocutory orders, no motion for new trial shall be filed....
(2) Appeals in quo warranto proceedings shall be accelerated. In quo war-ranto, the filing of a motion for new trial shall not extend the time for perfecting the appeal....
(3) In all accelerated appeals from interlocutory orders and in quo warranto proceedings, the bond, or the notice or affidavit in lieu thereof, shall be filed, or the deposit in lieu of bond shall be made, within twenty days after the judgment or order is signed....

Former Tex.R.App. P. 42(a) (1986, amended 1997). The pre-1997 rules thus provided that, while certain post-judgment motions would extend the appellate deadlines in ordinary appeals, such motions, to the extent they were permitted to be filed at all, did not affect the twenty-day deadline for accelerated appeals.

In 1997, the rules were amended. Former rule 41 is now rule 26, and former rule 42, with the exception of the deadlines to perfect the appeals, is now rule 28. The comments to the amended rules help clarify what substantive changes were intended. The rule 26 (appellate deadlines) comment notes simply:

This is former Rule 41. All times for perfecting appeal in civil cases — including the time for perfecting a restricted appeal — are stated. An extension of time is available for all appeals. The provisions of former Rule 41(c) regarding prematurely filed documents are moved to Rule 27. Nonsubstantive changes are made in the rule for criminal cases.

Tex.R.App. P. 26 cmt. The rule 28 (accelerated appeals) comment states:

This is former Rule 42. A motion for new trial is now permitted in an appeal from an interlocutory order, but it does not extend the time to perfect appeal. The deadlines for fifing items in an accelerated appeal are moved to other rules. See Rules 26.1, 35.1 [appellate record] and 38.6 [appellate briefs]. Former Rule 42(b), regarding discretionary acceleration, is omitted as unnecessary. See Rule 40.1. The provision in former Rule 42(c) allowing the court to shorten the time to file briefs is omitted as unnecessary. See Rule 38.6.

Tex.R.App. P. 28 cmt. Thus, the key changes with regard to the deadline for perfecting appeals were: (1) all deadlines for perfecting appeals in civil cases were moved to a single rule (rule 26); (2) an extension of time was made available for all appeals on proper motion to the court of appeals, see Tex.R.App. P. 26.3; and (3) motions for new trial could now be filed in interlocutory appeals, but, as was already the case in quo warranto proceedings, such motions would not extend the appellate deadlines.

We find nothing in either the language of the amended rules or the comments thereto that would support Carroll’s interpretation, which would have constituted a major change from the pre-1997 version. Significantly, the fact that former rule 42 specifically provided that filing a motion for new trial would not extend the deadline in quo warranto proceedings did not imply that filing other post-judgment motions would extend the deadline. Former Tex.R.App. P. 41, 42. We see no reason to read such an implication into the same language in the amended rules. In an ordinary civil appeal in which the deadline to file the notice of appeal is otherwise thirty days after the judgment or order is signed, filing one of the post-judgment motions identified in rule 26.1(a) extends the deadline to ninety days. But we hold that in an accelerated appeal, absent a rule 26.3 motion, the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law will not extend that deadline. Allowing such post-order motions to automatically delay the appellate deadline is simply inconsistent with the idea of accelerating the appeal in the first place. Because Carroll did not file a motion for extension of time under rule 26.3 and her notice of appeal was not filed within twenty days after the trial court signed the final order terminating her parental rights, her notice of appeal was untimely and failed to invoke the jurisdiction of the court of appeals.

Ill

We turn to Carroll’s alternative argument that, even if her notice of appeal was untimely, her motion for new trial, which was filed within twenty days after the judgment was signed, was sufficient in itself to perfect an appeal. The court of appeals did not address this argument.

Carroll relies on the well-settled proposition that a court of appeals has jurisdiction over an appeal if the appellant timely files an instrument in a bona fide attempt to invoke the appellate court’s jurisdiction. E.g., Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., Inc., 813 S.W.2d 499, 500 (Tex.1991); see also Verburgt v. Domer, 959 S.W.2d 615, 616 (Tex.1997) (reaffirming the principle that “appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal”). In support of her specific contention that a motion for new trial can operate to perfect an appeal, Carroll cites In re M.A.H., 104 S.W.3d 568, 570 (Tex.App.Waco 2002, no pet.). There, the court held, as we do today, that the mother’s motion for new trial did not extend the due date for her notice of appeal. Id. at 569. But a divided court held that the appellant’s motion for new trial could be treated as an instrument that was filed in a “bona fide attempt” to invoke the court’s jurisdiction. Id. That holding has been criticized by a number of other appellate courts, with whom we agree. C. Chambers Enters, v. 6250 Westpark, LP, 97 S.W.3d 333, 334 (TexApp.-Houston [14th Dist.] 2003, pet. denied); In re J.N.W., 2003 WL 21255637 (TexApp.-Tyler 2003, no pet.); Lane v. Burkett, No. 13-04-290-CV, 2004 WL 1687913 at *1 (Tex.App.Corpus Christi July 29, 2004, no pet.).

In Grand Prairie, we held that a court of appeals may not dismiss an appeal in which the appellant filed the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error, as long as the instrument was timely filed in a bona fide attempt to invoke the appellate court’s jurisdiction. 813 S.W.2d at 500. Filing a motion for new trial, however, simply does not qualify as such an attempt. As the dissent noted in In re M.A.H.,

[SJeldom, if ever, could a motion for new trial be intended to invoke [the court of appeals’] jurisdiction, because the express purpose of a motion for new trial is just that, to have the trial court order a new trial, not to obtain appellate review of the judgment. Even if ... a motion for new trial was a necessary predicate to bring an issue on appeal, the motion for new trial would have been properly characterized as a prerequisite to an appeal, not an effort to invoke appellate jurisdiction.

104 S.W.3d at 571 (Gray, J., dissenting); see also Besing v. Moffitt, 882 S.W.2d 79, 82 (Tex.App.-Amarillo 1994, no writ) (filing a request for findings of fact and conclusions of law insufficient to perfect an appeal under Grand Prairie). Though there are myriad reasons why a party might file a motion for new trial, we fail to see how invoking the court of appeals’ jurisdiction could reasonably be considered one of them. Indeed, because fifing a motion for new trial extends the deadline to file a notice of appeal in most civil cases, Tex. R.App. P. 26.1(a), a motion for new trial logically cannot also serve as a substitute for a notice of appeal.

We conclude that a motion for new trial is not an instrument that may be considered a bona fide attempt to invoke the appellate court’s jurisdiction under the Grand Prairie and Verburgt fine of cases. We therefore hold that, although Carroll’s motion for new trial was timely filed and preserved her request for a second chance in the trial court, it did not operate to timely perfect her appeal.

IV

Finally, Carroll raises two constitutional issues should we hold, as we have, that her appeal was untimely. First, Carroll contends she received ineffective assistance of counsel and should be allowed to pursue an out-of-time appeal. Second, she argues section 109.002 of the Family Code, which provides that appeals in parental rights termination cases shall be accelerated and governed by the rules of appellate procedure for accelerated appeals, is unconstitutional as applied. However, Carroll waived these arguments by failing to raise them in the court of appeals.

After the court of appeals informed Carroll that her appeal was untimely, she filed a “Brief on the Issue of Jurisdiction” in the court of appeals. She also filed a motion for rehearing after the court dismissed her appeal. In none of her filings with the court of appeals did Carroll raise any constitutional arguments. We have held that the rules governing error preservation must be followed in cases involving termination of parental rights, as in other cases in which a complaint is based on constitutional error. In re B.L.D., 113 S.W.3d 340, 350-51 (Tex.2003) (fundamental-error doctrine does not apply to procedural preservation rules, nor does due process require appellate review of unpreserved complaints in parental rights termination cases); Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex.2001) (failure to assert constitutional claim in trial court bars appellate review of claim). While Carroll’s constitutional complaints relate to her appeal and therefore could not have been asserted in the trial court, she was required to raise them in the court of appeals in order to preserve error. Because she did not, her constitutional complaints are waived.

We hold that, when an appeal is accelerated, the deadline for fifing a notice of appeal under Texas Rule of Appellate Procedure 26.1(b) is twenty days after the judgment or order is signed, and the post-judgment motions listed in Texas Rule of Appellate Procedure 26.1(a) will not operate to extend the appellate deadline. We also hold that fifing a motion for new trial does not constitute a bona fide attempt to invoke the court of appeals’ jurisdiction for purposes of perfecting an appeal. Accordingly, we affirm the court of appeals’ judgment dismissing the appeal for want of jurisdiction.

      . In the trial court and court of appeals, Ms. Carroll was referred to as Susan Carroll Capps. In her filings in this Court, she states that she is now known as Susan Carroll; we will refer to her accordingly.


author: PER CURIAM.

text:
    In re Adel SHESHTAWY, Relator.
    No. 14-03-00444-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 22, 2003.
    Rehearing Overruled June 5, 2003.
    Adel Sheshtawy, Houston, pro se.
    Eileen M. Gaffney, Karen Denise Poe, Shawn Russel Casey, Houston, for appel-lees.
    Panel consists of Chief Justice BRISTER and Justices FOWLER and EDELMAN.
   MEMORANDUM OPINION

PER CURIAM.

On April 18, 2003, relator filed a petition for writ of prohibition and for writ of mandamus in this Court. See Tex. Gov’t.Code Ann. § 22.221; see also Tex. R.App. P. 52. In his petition, relator seeks to compel the Hon. Frank Rynd, Judge of the 309th District Court of Harris County, to stay enforcement proceedings scheduled for April 24, 2003, in trial court cause number 2000-63348, styled In the Matter of the Marriage of Adel Sheshtawy and Amal Sheshtawy v. Tri-Max Industries, Inc. and Drill Bit Industries, Inc. Relator also seeks mandamus relief to compel the trial court to enter findings of fact and conclusions of law.

In the motion for enforcement, real party Amal Sheshtawy alleges relator failed to pay spousal maintenance and transfer property as ordered in the final decree of divorce. Relator has appealed the final decree of divorce, and the appeal was assigned to this Court under our cause number 14-02-01281-CV. Pursuant to a docket equalization order from the Texas Supreme Court, the appeal was transferred to the Court of Appeals for the Fourth District of Texas on January 23, 2003.

The purpose of a writ of injunction is to enforce or protect the appellate court’s jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.1989). A writ of injunction may be used to prohibit a trial court’s action when it affirmatively appears the court does not have jurisdiction. Texas Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 187 (Tex.App.-Texarkana 1993, orig. proceeding).

Relator asserts only the court of appeals has jurisdiction to enforce the decree once an appeal has been perfected, citing such cases as Schultz v. Fifth Judicial District Court of Appeal, 810 S.W.2d 738, 740 (Tex. 1991), Ex parte Boniface, 650 S.W.2d 776, 778 (Tex.1983), and Ex parte Werblud, 536 S.W.2d 542, 544 (Tex.1976). We find that amendments to the Texas Family Code have abrogated these, cases, at least in part, with respect to family law enforcement proceedings involving such matters as spousal and child support. See, e.g., Tex. Fam.Code Ann. § 157.001(d) (motion for enforcement under Title 5 shall be filed in court of continuing, exclusive jurisdiction); Tex. Fam.Code Ann. § 8.059 (trial court may enforce spousal maintenance by contempt, garnishment, or other means); Tex. Fam.Code Ann. § 6.709(b) (trial court retains jurisdiction to enforce temporary orders pending appeal); Massey v. Massey, 813 S.W.2d 605, 606 (Tex. App.-Houston [1st Dist.] 1991, no writ) (finding Boniface abrogated in part by enactment of former section 3.58(h), current section 6.509(b)); Chiles v. Schuble, 788 S.W.2d 205, 206 (Tex.App.-Houston [14th Dist.] 1990, orig. proceeding) (same); Sullivan v. Sullivan, 719 S.W.2d 239 (Tex.App.-Dallas 1986, writ denied) (concluding child support enforcement proceedings should be filed in trial court rather than appellate court); Bivins v. Bivins, 709 S.W.2d 374 (Tex.App.-Amarillo 1986, no •writ) (same); see also Pollock v. Mohr, No. 14-03-00254-CV, 2003 WL 21940113 (Tex.App.Houston [14th Dist.] April 10, 2003) (order) (not designated for publication] (trial court has continuing jurisdiction to enforce child support despite pending appeal). Therefore, we hold the trial court has jurisdiction to enforce the decree of divorce despite the pendency of an appeal.

With respect to relator’s request that we compel the trial court to issue findings of fact and conclusions of law, we find relator has a remedy available in his appeal currently pending at the Court of Appeals for the Fourth District. See Zieba v. Martin, 928 S.W.2d 782, 786 (Tex.App.-Houston [14th Dist.] 1996, no writ) (holding proper remedy for failure to file timely requested findings of fact and conclusions of law is to abate appeal and direct trial court to correct its error).

Accordingly, we deny relator’s petition for writ of prohibition and for writ of mandamus.

      . A court of appeals may only issue a writ against a judge of a district or county court in the court of appeals’ district. Tex. Gov’t Code Ann. § 22.221(b)(1). Thus, the Court of Appeals for the Fourth District has no power to issue a writ against a Harris County district judge. Given our disposition of this proceeding, we need not reach the issue of whether this Court may issue a writ of injunction to protect jurisdiction over an appeal that has been transferred to another court of appeals.


text:
    In re Adel SHESHTAWY, Relator.
    No. 14-03-00808-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 7, 2003.
    Scott Ramsey, Houston, for relator.
    Shawn Russel Casey, Houston, for respondent.
    Panel consists of Justices YATES, HUDSON, and FROST.
   MEMORANDUM OPINION

PER CURIAM.

On July 22, 2003, relator, Adel Sheshtawy, filed a petition for writ of habeas corpus. See Tex. Gov’t Code Ann. § 22.221(d) (Vernon Supp.2000); Tex. R.App. P. 52.

We deny relator’s petition for writ of habeas corpus for the reasons set out in In re-Sheshtawy, No. 14-03-00444-CV, 161 S.W.3d 1, 2003 WL 1922869 (Tex.App.Houston [14th Dist.] 2003) (orig.proceeding).