text:
    Jose Castillo RAMIREZ, Appellant v. The STATE of Texas, Appellee.
    Nos. 05-04-01228-CR, 05-04-01229-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 3, 2006.

      Paul D. Key, McKinney, TX, for Appellant.
    Andrea L. Westerfeld, Asst. Criminal District Atty., McKinney, TX, for The State.
    Before Justices MORRIS, WHITTINGTON, and LANG.
   OPINION

Opinion by

Justice MORRIS.

When Jose Castillo Ramirez was originally convicted of two indecency with a child offenses, he was placed on ten years’ probation in each case. After that ten-year term expired, the trial court revoked appellant’s probation and sentenced him to two years’ confinement in each case. Appellant now complains in four issues that the trial court erred in revoking his probation in these cases because: (1) it had lost jurisdiction over the cases; (2) application of code of criminal procedure article 42.12, sections 21(e) and 24 to his cases violated his rights under the Ex Post Facto Clause of the United States Constitution; (3) the State was not diligent in apprehending him; and (4) the common law due diligence defense was not vitiated by article 42.12, sections 21(e) and 24. Concluding appellant’s arguments are without merit, we affirm the trial court’s judgments.

Factual Background

Appellant pleaded guilty to two offenses of indecency with a child and was placed on ten years’ probation on October 5,1992. The State filed motions to revoke probation in both cases on March 29, 1993. A capias writ issued on the motions on April 2, 1993. On October 4, 2002, appellant’s probation term expired. He was apprehended on May 7, 2004 in Aurora, Illinois.

At the hearing on the State’s motions to revoke, appellant complained the State did not use due diligence in apprehending him. The trial court concluded that the common law due diligence defense no longer existed and had been replaced instead by article 42.12, section 24 of the Texas Code of Criminal Procedure. The trial court read the statute to provide a limited due diligence affirmative defense that applies only to two specific revocation allegations, neither of which were applicable in appellant’s cases. The trial court granted the State’s motions to revoke and sentenced appellant to two years’ confinement in each case.

Discussion

In his first issue on appeal, appellant complains the trial court lost jurisdiction over him before Texas Code of Criminal Procedure article 42.12, sections 21(e) and 24 went into effect. Article 42.12 was amended in 2003 after appellant’s probation term technically expired. See Act of May 30, 2003, 78th Leg., R.S., ch. 250, §§ 2, 3, 2003 Tex. Gen. Laws 1158, 1158 (codified at Tex.Code CRim. Proc. Ann. art. 42.12, §§ 21(e) and 24 (Vernon Supp. 2005)). The amendment created a statutory due diligence affirmative defense in revocation cases where the State alleged either the probationer failed to report or failed to remain within a specified place. In those types of cases, where the State “failed to contact or attempt to contact the defendant in person at the defendant’s last known residence address or last known employment address,” the probationer may claim the affirmative due diligence defense. Tex.Code CRIM. Proc. Ann. art. 42.12, § 24.

Appellant contends the limited, statutory due diligence affirmative defense did not apply to his cases because the trial court lost jurisdiction over his cases in 2002 when his probation term expired. He asserts that the common law due diligence defense applied instead. The common law defense, as applied in revocation cases where the defendant was apprehended after the expiration of his probation term, required the State to prove by a preponderance of the evidence that it used due diligence in executing the capias and in holding a hearing on the motion to revoke. See Nurridin v. State, 154 S.W.3d 920, 922 (Tex.App.-Dallas 2005, no pet.). Appellant’s contention is not well taken.

So long as a motion to revoke is filed and a capias is issued before a defendant’s probationary term expires, the trial comb retains jurisdiction over the case even after the term expires. See Brecheisen v. State, 4 S.W.3d 761, 763 (Tex.Crim.App.1999); see also Tex.Code Crim. Proc. Ann. art. 42.12, § 21(e). Even under the common law, due diligence was not an element of trial court jurisdiction but a plea in bar or defense that had to be raised at the revocation hearing. Brecheisen, 4 S.W.3d at 763. Here, the motion to revoke was filed and the capias was issued during appellant’s probation term. Thus, the trial court had jurisdiction over the motions to revoke. We resolve appellant’s first issue against him.

In his second issue, appellant complains that application of article 42.12, sections 21(e) and 24 to his cases violated the Ex Post Facto Clause. An ex post facto law (1) punishes as a crime an act previously committed that was innocent when done, (2) inflicts a greater punishment than the law attached to a criminal offense when committed, (3) deprives a person charged with a crime of any defense available at the time the act was committed, or (4) alters the legal rules of evidence and requires less or different testimony than the law required at the time of the commission of the offense to convict the offender. See Carmell v. Texas, 529 U.S. 513, 522-25, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). Appellant argues that applying to his cases the article 42.12, sections 21(e) and 24 due diligence affirmative defense, instead of the broader common law due diligence defense, deprived him of a defense that was available when he committed the original indecency with a child offenses.

The State responds that the application of article 42.12 to appellant’s cases was merely a procedural change and therefore not a violation of the Ex Post Facto Clause. We disagree with the State’s analysis. The State relies, in part, on Lindquist v. State, 922 S.W.2d 223 (Tex.App.-Austin 1996, pet. ref'd). In Lind-quist, the Austin Court of Appeals held that immediate application of the amendment of code of criminal procedure article 38.07 to eliminate the corroboration requirement for certain sexual offenses on the testimony of the victim alone was not a violation of the Ex Post Facto Clause in that case because the change did not alter the State’s burden of convincing the fact finder beyond a reasonable doubt. 922 S.W.2d at 228-29. Four years later, however, the United States Supreme Court held that application of this exact statutory amendment in a trial for an offense committed before the amendment’s effective date did violate the Ex Post Facto Clause. See Carmell, 529 U.S. at 530, 120 S.Ct. 1620; see also Gagliardo v. State, 78 S.W.3d 469, 477-78 (Tex.App.-Tyler 2001, pet. ref'd).

In Carmell, the Court noted:

A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof_In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.

529 U.S. at 532-33, 120 S.Ct. 1620. The Court specifically distinguished rules concerning the admissibility of evidence from rules concerning whether the properly admitted evidence is sufficient to convict the defendant. See id. at 546, 120 S.Ct. 1620. Thus, we reject the State’s argument that application of the amended article 42.12 to appellant’s cases did not violate the Ex Post Facto Clause because it altered a procedural rule only. The change from the common law due diligence defense to the statutory due diligence affirmative defense was not merely an alteration of procedure. Rather, it was a rule change that decreased the amount of proof necessary for the State to revoke appellant’s probation.

Nevertheless, we conclude the Ex Post Facto Clause did not apply to appellant’s cases. To fall within the ex post facto prohibition, a criminal law must contain two critical elements: first, the law must be retrospective; and second, it must disadvantage the offender affected by it. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). A law is retrospective if it changes “the legal consequences of acts completed before its effective date.” Id. The completed “acts” in a probation revocation case are those that make up the underlying offense. See Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (holding probation revocation is “not a stage of a criminal prosecution”).

The prohibition against ex post facto laws does “not give a defendant a right to be tried, in all respects, by the law in force when the crime charged was committed.” Holcomb v. State, 146 S.W.3d 723, 731 (Tex.App.-Austin 2004, no pet.) (quoting Gibson v. Mississippi 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075 (1896)). Here, the statutory change to the due diligence defense in probation revocations did not change the legal consequences of appellant’s indecency with a child offenses at the time he committed them. The change did not alter appellant’s guilt for the underlying offenses in any way, nor did it increase his punishment for them. It altered eventual proceedings in the case that were not a stage in appellant’s criminal prosecution and could not be foreseen at the time of appellant’s acts. See Gagnon, 411 U.S. at 782, 93 S.Ct. 1756. By the time of his probation revocation, appellant possessed the limited due process rights “of one who is a probationer only because he has been convicted of a crime.” Id. at 789, 93 S.Ct. 1756. A change in how much evidence the State needed to prove appellant’s commission of a probation violation by a preponderance of the evidence did not amount to a change of the “legal consequences” of his acts of indecency with a child. See Miller, 482 U.S. at 430, 107 S.Ct. 2446. Accordingly, we conclude the application of article 42.12, sections 21(e) and 24 did not amount to a violation of appellant’s rights under the Ex Post Facto Clause. We resolve appellant’s second issue against him.

In his third issue, appellant complains the State was not diligent in apprehending him and the trial court therefore erred by denying his due diligence motion. Regardless of whether the State in this case was diligent in apprehending appellant, this Court has already determined the common law defense of due diligence was eliminated when the Texas Legislature added sections 21(e) and 24 to code of criminal procedure article 42.12 thereby creating the limited due diligence affirmative defense. See Nurridin, 154 S.W.3d at 923-24. The affirmative defense applies only to “revocation for an alleged failure to report to a supervision officer as directed or to remain within a specified place.” Id. (quoting Tex.Code CRiM. PROC. Ann. art. 42.12, § 24 (Vernon Supp.2005)). The State did not allege appellant violated his probation on either of these grounds. Accordingly, appellant’s complaint is without merit. We resolve his third issue against him.

Finally, in his fourth issue, appellant contends the legislature’s addition of sections 21(e) and 24 to article 42.12 of the code of criminal procedure did not vitiate the common law due diligence defense but created an additional affirmative defense limited to “a few specific allegations.” Appellant cites no authority to support his position. As stated above, this Court has previously held that the common law defense of due diligence was eliminated when the Texas Legislature amended code of criminal procedure article 42.12 to add sections 21(e) and 24 thereby creating the limited due diligence affirmative defense. See id. at 923-24; see also Wheat v. State, 165 S.W.3d 802, 805 (Tex.App.-Texarkana 2005, pet. dism’d, untimely filed). Accordingly, we also resolve appellant’s fourth issue against him.

We affirm the trial court’s judgments.

      . A capias ad respondendum, usually simply termed a "capias,” is a "writ commanding the sheriff to take the defendant into custody to ensure that the defendant will appear in court.” Black’s Law Dictionary 200 (7th ed.1999).

      . Appellant complains the trial court’s action violated the prohibitions against ex post facto laws found in the constitutions of both the United States and Texas. We note, however, that appellant has failed to argue that the Texas Constitution provides greater protection than the federal constitution on this matter. Therefore, we address appellant’s complaint only under the Ex Post Facto Clause of the United States Constitution. See Lagrone v. State, 942 S.W.2d 602, 612 (Tex.Crim.App.1997).


source: Caselaw Access Project

author: Justice MAZZANT.

license: Public Domain

text:
    Matt KARSTETTER, Appellant v. Chris VOSS and Jensen Investments, Inc., Appellees.
    No. 05-05-00876-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 7, 2006.

      Gergory W. Mitchell, The Mitchell Law Firm, L.P., Rowlett, for appellant.
    Robert Slim, Rockwall, for appellees.
    Before Justices WHITTINGTON, WRIGHT, MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Appellant Matt Karstetter, a Kansas resident, appeals an order vacating a Kansas judgment against appellees Chris Voss and Jensen Investments, Inc. for lack of personal jurisdiction. For the following reasons, we affirm the judgment of the trial court.

Factual and Procedural Background

Appellees are Texas residents in the business of automobile sales. In January 2004, they placed an advertisement on eBay to sell a 1996 Dodge Ram pick-up truck. The auction ran until February 1, 2004. During the auction, appellant emailed appellees inquiring as to whether the truck would “make the drive to Kansas.” On January 30, 2004, appellant emailed appellees again and asked if they would be willing to end the auction early and deal directly with him for the sale of the vehicle. Appellees declined and continued the auction. Of the fifty-seven bids received, appellant was the highest bidder. Appellant paid for the vehicle and arranged for it to be picked up and driven to Kansas. After the sale, appellant filed suit against appellees in the District Court of McPherson County, Kansas. Appellees did not appear in the suit and appellant received a default judgment in the amount of $5,200.52. Appellant then sought to enforce the Kansas judgment in Texas and filed it in the trial court pursuant to the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) and the requirements of the Texas Civil Practice and Remedies Code. See 28 U.S.C. § 1738; Tex. Civ. Pkac. & Rem.Code Ann. § 35.001-008 (Vernon Supp.2005).

Appellees filed a Motion to Vacate the Judgment asserting the Kansas court lacked personal jurisdiction. At the hearing on the motion, appellees presented evidence that they never owned property in Kansas, did not have any bank accounts in Kansas, did not advertise in Kansas, and did not have an office or an agent in Kansas. Approximately one percent of ap-pellees’ sales are through eBay. The sale of this truck was the only transaction between the parties. The parties exchanged two e-mails before the auction and had one telephone conversation after the auction to set up payment for the truck. Appellant had a driver pick up the truck in Texas. Appellees mailed the title to the truck to appellant in Kansas. After the hearing, the trial court vacated the Kansas judgment for lack of personal jurisdiction.

Full Faith and Credit

Under the United States Constitution, each state must give a final judgment of a sister state the same force and effect the judgment would be entitled to in the state in which it was rendered. U.S. CONST. art. IV § 1; Bard v. Charles R. Myers Ins. Agency, Inc., 839 S.W.2d 791, 794 (Tex.1992). Under the authority of the full faith and credit clause of the United States Constitution, Congress enacted a statute which dictates the manner of proving the records of judicial proceedings of other states and also provides that copies of such proceedings, when properly authenticated under the statute, “shall have ... full faith and credit in every court within the United States.... ” 28 U.S.C. § 1738.

In Texas, the enforcement of foreign judgments is governed by the Texas version of the UEFJA. Tex. Civ. PRAC. & Rem.Code Ann. § 35.001 et seq. Courts have held that, when a plaintiff sues on a foreign judgment of a sister state and introduces a properly authenticated copy of the judgment, a prima facie case for enforcement of the judgment is presented. See Tex. Civ. Piiac. & Rem.Code Ann. § 35.003; Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 96 L.Ed. 146 (1951); Walnut Equip. Leasing Co., Inc. v. Wu, 920 S.W.2d 285, 286 (Tex.1996); First Nat’l Bank of Libby, Montana v. Rector, 710 S.W.2d 100, 103 (Tex.App.-Austin 1986, writ ref'd n.r.e.). The foreign judgment becomes enforceable as a Texas judgment on the date it is filed and is subject to the same defenses and proceedings for reopening, vacating, or staying a judgment as a judgment of a Texas court. See Tex. Civ. PRAc. & Rem.Code Ann. § 35.003(c); Mindis Metals, Inc. v. Oilfield Motor & Control, Inc., 132 S.W.3d 477, 483 (Tex.App.-Houston [14th Dist.] 2004, pet. denied). In interpreting the UEFJA, courts have held that the enforcing state may make a reasonable inquiry into a sister state’s judgment and the jurisdiction over the parties before affording the judgment full faith and credit. See Williams v. State of North Carolina, 325 U.S. 226, 232, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Boyes v. Morris Polich & Purdy, LLP, 169 S.W.3d 448, 454 (Tex.App.-El Paso 2005, no pet.); Rector, 710 S.W.2d at 103.

The burden of attacking the judgment and establishing any reason why it should not be given full faith and credit is on the defendant. Williams, 325 U.S. at 235, 65 S.Ct. 1092; Minuteman Press Intern., Inc. v. Sparks, 782 S.W.2d 339, 340-41 (Tex.App.-Fort Worth 1989, no writ); Rector, 710 S.W.2d at 103. The defendant may try to prove any affirmative defense to the judgment, such as lack of jurisdiction, faulty service, or lack of finality. Minuteman Press, 782 S.W.2d at 342; Rector, 710 S.W.2d at 103. Specifically, a defendant may challenge the jurisdiction of a sister state to render a foreign judgment on two grounds: (1) the defendant may try to demonstrate that service of process was inadequate under the service of process rules of the sister state or (2) the defendant may assert that the sister state’s exercise of jurisdiction offends due process because it does not have minimum contacts with the sister state. Cash Register Sales & Servs. of Houston, Inc. v. Copelco Capital, Inc., 62 S.W.3d 278, 281 (Tex.App.Houston [1st Dist.] 2001, no pet.); Rector, 710 S.W.2d at 103; see also O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966).

A defense asserted in a Texas court against the enforcement of a foreign judgment is a collateral attack. Cash Register Sales, 62 S.W.3d at 281; Rector, 710 S.W.2d at 103. In a collateral attack on a sister state’s judgment, no defense that goes to the merits of the original controversy may be raised. Cash Register Sales, 62 S.W.3d at 281. This is true for questions of jurisdiction if those issues were fully and fairly litigated and decided in the sister court. Mayhew v. Caprito, 794 S.W.2d 1, 2 (Tex.1990). A collateral attack on a judgment is successful only where the judgment is established as void. A judgment is void only when it is apparent the court rendering it lacked (1) jurisdiction over the parties or property, (2) jurisdiction over the subject matter, (3) jurisdiction to enter the particular judgment, or (4) the capacity to act as a court. See Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985).

Standard of Review

A motion contesting enforcement of a foreign judgment operates as a motion for new trial. Navarro and Assoc. v. San Remo Mfg., Inc., 2006 WL 10093, *1 (Tex.App.-Dallas January 3, 2006); Moncrief v. Harvey, 805 S.W.2d 20, 23 (Tex.App.-Dallas 1991, no writ); Mindis, 132 S.W.3d at 486; see also Cash Register Sales, 62 S.W.3d at 281. A trial court has broad discretion and we may not disturb its ruling absent manifest abuse of discretion. See Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988); Tex.R. Crv. P. 320. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles or whether the trial court’s actions were arbitrary or unreasonable under the circumstances. Don Navarro, 2006 WL 10093 at *1; Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

We apply the abuse of discretion standard recognizing that the law required the trial court to give full faith and credit to the Kansas judgment unless the appellees established an exception. See Mináis, 132 S.W.3d at 485. The determination of whether the appellees established an exception to full faith and credit generally involves a factual inquiry not resolution of a question of law. Id. The trial court has no discretion in applying the law to the established facts. Id. Therefore, we review the record to determine whether the trial court misapplied the law to the established facts in concluding whether the appellees established an exception to full faith and credit. Id.

In this case, the Texas trial court vacated the Kansas trial court’s judgment for lack of personal jurisdiction. Whether a court has personal jurisdiction over a defendant is a question of law. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-806 (Tex.2002)(citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002)). In resolving this question of law, a trial court must frequently resolve questions of fact. Coleman, 83 S.W.3d at 806 (citing BMC Software, 83 S.W.3d at 794).

Personal Jurisdiction

The Kansas long-arm statute authorizes Kansas courts to exercise jurisdiction over a nonresident defendant that does business in Kansas. See K.S.A. § 60wb); McNeal v. Zobrist, 365 F.Supp.2d 1166, 1169 (D.Kan.2005). As in Texas, the Kansas long-arm statute is liberally construed to assert personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause. See Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 819 P.2d 1192, 1197-1199 (1991); OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir.1998); Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1305 (10th Cir.1994); see also BMC Software, 83 S.W.3d at 795.

Personal jurisdiction over nonresident defendants meets the due process requirements of the Constitution when two conditions are met: (1) the defendant has established minimum contacts with the forum state and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Rainy Day Books, Inc. v. Rainy Day Books & Cafe, 186 F.Supp.2d 1158, 1161 (D.Kan.2002); BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Personal jurisdiction exists if the nonresident defendant’s minimum contacts give rise to either general or specific jurisdiction. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 56 P.3d 829, 835 (2002); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); BMC Software, 83 S.W.3d at 795-796. General jurisdiction is present when the defendant’s contacts in a forum are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. Kluin, 56 P.3d at 835; BMC Software, 83 S.W.3d at 796. In contrast, specific jurisdiction is established if the nonresident defendant’s alleged liability arises from or is related to activity conducted within the forum. Kluin, 56 P.3d at 835; BMC Software, 83 S.W.3d at 796.

The “touchstone” of jurisdictional due process analysis is “purposeful availment.” Rainy Day Books, 186 F.Supp.2d at 1162-1163; Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex.2005)(citing Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). “[I]t is essential in each case that there be some act by which the defendant ‘purposefully avails’ itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 785 (quoting Hanson, 357 U.S. at 253, 78 S.Ct. 1228). There are three important aspects to be considered in evaluating purposeful availment. “First, it is only the defendant’s contacts with the forum that count: purposeful availment ‘ensures that a defendant will not be haled into a jurisdiction solely as a result of ... the unilateral activity of another party or a third person.’ ” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Second, the acts relied upon must be “purposeful” rather than “random, isolated or fortuitous.” Id. (quoting Keeton v. Hustler Magazine Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Third, a defendant must seek some benefit, advantage or profit by “availing” itself of the jurisdiction. By invoking the benefit and protections of a forum’s laws, a nonresident consents to suit there. Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). By contrast, a nonresident may purposefully avoid a jurisdiction by structuring its transactions so as neither to profit from the forum’s laws nor be subject to its jurisdiction. Id. (citing Burger King, 471 U.S. at 473, 105 S.Ct. 2174).

In addition to minimum contacts, the exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. Rainy Day Books, 186 F.Supp.2d at 1161; BMC Software, 83 S.W.3d at 795 (citing Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154). The following factors are considered in making that determination: (1) the burden on the nonresident defendant, (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiffs interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering substantive social policies. World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. 559; Guardian Royal Exchange Assur., Ltd. v. English China Clays, 815 S.W.2d 223, 231 (Tex.1991).

We review the evidence related to appellees’ use of the eBay website to determine whether it establishes minimum contacts sufficient to support either specific or general jurisdiction over appellees by the Kansas trial court. Internet use falls into three categories on a sliding scale for purposes of establishing personal jurisdiction. Reiff v. Roy, 115 S.W.3d 700, 705 (Tex.App.-Dallas 2003, pet. denied); Rainy Day Books, 186 F.Supp.2d at 1163.

At one end of the scale are websites clearly used for transacting business over the internet, such as entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state. On the other end of the spectrum are “passive” websites that are used only for advertising over the internet and are not sufficient to establish minimum contacts even though they are accessible to residents of a particular state. In the middle are “interactive” websites that allow the “exchange” of information between a potential customer and a host computer. Jurisdiction in cases involving interactive websites is determined by the degree of interaction.

I & JC Corp. v. Helen of Troy L.P., 164 S.W.3d 877, 888-89 (Tex.App.-El Paso 2005, pet. denied); see also Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997); Kluin, 56 P.3d at 838-839.

By filing an authenticated copy of the Kansas judgment in the Texas court, appellant presented his prima facie case for enforcement in Texas. The burden then shifted to appellees to prove why the Kansas judgment should not be given full faith and credit. Appellees asserted the Kansas court lacked personal jurisdiction. From the evidence adduced at the hearing on the motion to vacate, appellees’ contacts with Kansas were not continuous and systematic to give rise to general jurisdiction. Therefore, we have to look to whether the Kansas trial court had specific jurisdiction over appellees. As such, we must determine whether the alleged liability arises from or is related to activity conducted by appellees in Kansas and whether appellees purposefully availed themselves of the privilege of conducting business in Kansas. Kluin, 56 P.3d at 835; Michiana, 168 S.W.3d at 785.

This case would fall into the middle category of the sliding scale used to evaluate internet usage for purposes of establishing jurisdiction since eBay would be characterized as an “interactive website.” I & JC Corp., 164 S.W.3d at 888-89. Appellees had to register and list the truck on eBay before appellant could bid on it. However, appellees had no control over who would be the highest bidder. Therefore, we have to look beyond the internet activity to the degree of interaction between the parties. Id.; see generally Shamsuddin v. Vitamin Research Products, 346 F.Supp.2d 804, 810 (D.Md.2004) (many courts have held that selling goods through internet auction sites does not subject a defendant to the jurisdiction of the purchaser).

The record shows that the interaction between the parties was minimal. The email correspondence between the parties relating to the single purchase was initiated by appellant. There was no evidence that appellees traveled to Kansas or engaged in other transactions with appellant or other Kansas residents either through the eBay service or otherwise. Although appellees did seek some benefit, advantage or profit by selling the truck to a Kansas resident, their contact with Kansas was random, isolated, and fortuitous. The interaction between the parties did not rise to a level such that appellees should have reasonably foreseen that they would be haled into a Kansas court.

After reviewing the entire record, we conclude the trial court did not abuse its discretion when it determined the Kansas trial court lacked personal jurisdiction over appellees. Appellees did not have sufficient minimum contacts with the State of Kansas to permit the trial court to exercise personal jurisdiction over them. Appellees established an exception to full faith and credit.

Accordingly, we affirm the judgment of the trial court vacating the Kansas judgment for lack of personal jurisdiction.

      . Many Texas courts have used this sliding scale in determining whether an internet site is sufficient to support the exercise of general jurisdiction over a defendant. See, e.g. Exito Electronics., Co., Ltd. v. Trejo, 166 S.W.3d 839, 858 (Tex.App.-Corpus Christi 2005, no pet.); Townsend v. Univ. Hosp.-Univ. of Colo., 83 S.W.3d 913, 922 (Tex.App.-Texarkana 2002, pet. denied); Experimental Aircraft Ass’n, Inc. v. Doctor, 76 S.W.3d 496, 506-07 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Michel v. Rocket Engineering Corp., 45 S.W.3d 658, 677 (Tex.App.-Fort Worth 2001, no pet.); Jones v. Beech Aircraft Corp., 995 S.W.2d 767, 772 (Tex.App.-San Antonio 1999, pet. dism'd w.o.j.); Gessmann v. Stephens, 51 S.W.3d 329, 338-39 (Tex.App.-Tyler 2001, no pet.); Riviera Operating Corp. v. Dawson, 29 S.W.3d 905, 911 (Tex.App.-Beaumont 2000, pet. denied); Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707, 725 (Tex.App.-Austin 2000, pet. dism'd w.o.j.); see also Mink v. AAAA Dev. LLC., 190 F.3d 333, 336 (5th Cir.1999).


author: Justice LANG-MIERS.

text:
    ALLODIAL LIMITED PARTNERSHIP, Appellant, v. SUSAN BARILICH, P.C., Appellee.
    No. 05-05-00455-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 15, 2006.

      James A. Pikl, James A. Pikl, P.C., McKinney, for appellant.
    Craig A. Bernstein, Dallas, for appellee.
    Before Justices MOSELEY, RICHTER, and LANG-MIERS.
   OPINION

Opinion by

Justice LANG-MIERS.

This is a restricted appeal from a default judgment entered against Allodial Limited Partnership in favor of Susan Barilieh, P.C. on a sworn account. See Tex.R.App. P. 30. In four issues, Allodial argues the trial court erred by entering the default judgment because it did not acquire personal jurisdiction over Allodial and by ruling that it lacked jurisdiction to consider Allodial’s motion to set aside the default judgment. We conclude the trial court lacked personal jurisdiction over Allodial and reverse and remand for further proceedings.

BACKGROUND

Barilieh is a law firm retained by Allodial to represent it in litigation pending in Dallas County. Barilieh sued Allodial for unpaid legal fees. Barilich’s petition alleged:

Defendant, ALLODIAL LIMITED PARTNERSHIP, is a Limited Partnership having a principal place of business in Dallas County, Texas, but does not have a registered agent for service of process in Texas. Consequently, Defendant may be served with process through the Corporate Documents Section of the Texas Secretary of State ... which is to forward the same via registered mail, return receipt requested, to Defendant’s home office 3311 South Rainbow Boulevard, Suite 133, Las Ye-gas, Nevada 89146.

The certifícate from the secretary of state shows that process was returned with the notation “Undeliverable As Addressed.” Allodial never answered, did not appear in person or by attorney, and did not participate in the trial. The court entered a default judgment in favor of Barilieh in the amount of $14,754.80 plus attorney’s fees and prejudgment interest.

Standard of Review and Applicable Law

1. Restricted Appeal

A restricted appeal is a direct attack on the trial court’s judgment. Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex.1991); Sutton v. Hisaw & Assoc. Gen. Contractors, Inc., 65 S.W.3d 281, 284 (Tex.App.-Dallas 2001, pet. denied). A restricted appeal must (1) be brought within six months after the trial court signs the judgment, (2) by a party to the suit, (3) who did not participate in the actual trial, and (4) the error complained of must be apparent on the face of the record. Tex.R.App. P. 26.1(c), 30; Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.1997). The parties agree the only issue for our determination is whether there is error apparent on the face of the record.

2. Review of Default Judgment

When a default judgment is attacked, the record must show strict compliance with the rules relating to proper service. 14850 Quorum Associates, Ltd. v. Moore Bus. Forms, Inc., 7 S.W.3d 166, 168 (Tex.App.-Dallas 1998, no pet.). We do not indulge in any presumptions in favor of valid issuance, service, or return of citation. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) (per curiam); 14850 Quorum Associates, Ltd., 7 S.W.3d at 168. We also do not make inferences of jurisdictional facts. McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex.1965). Jurisdictional facts must affirmatively appear in the record, and the plaintiff bears the burden of alleging sufficient jurisdictional facts to bring the defendant within the provisions relied on for service. Id. at 930. When a plaintiff relies on service through the secretary of state, the record must show (1) the defendant was amenable to service through the secretary of state and (2) the defendant was, in fact, served in the manner required by the statute. See 14850 Quorum Associates, Ltd., 7 S.W.3d at 168-69.

Discussion

Allodial contends that the trial court did not have jurisdiction to enter the default judgment because Barilich failed to strictly comply with the statutory requirements governing substitute service on the secretary of state. Allodial argues there is no evidence in the record that Barilich complied with the requirements for service of process on a limited partnership because the record does not show that Barilich exercised reasonable diligence in attempting to serve Allodial’s general partner before serving the Texas Secretary of State as required by section 1.08 of the Texas Revised Limited Partnership Act (TRLPA). Tex.Rev.Civ. Stat. Ann. art. 6132a-l, § 1.08 (Vernon Supp.2005).

Barilich argues section 1.08 of the TRLPA cited by Allodial does not apply because Allodial is a foreign limited partnership and section 1.08 governs service of process on domestic limited partnerships. Barilich contends that its request for service of process on Allodial through the Texas Secretary of State was proper under section 9.10 of the TRLPA governing service on foreign limited partnerships and the provisions of the civil practice and remedies code governing substituted service on nonresidents. Id. § 9.10; Tex. Civ. PRAC. & Rem.Code Ann. § 17.044 (Vernon 1997).

But Barilich’s petition alleges only that Allodial is a limited partnership, not that it is foreign or domestic. From the face of the clerk’s record, we cannot tell whether Allodial is a domestic or foreign limited partnership, and there is no reporter’s record in this appeal relating to taking the default judgment. Consequently, we will address the application of both of those sections of the TRLPA and provisions of the civil practice and remedies code.

1. Service under the TRLPA

Domestic Limited Partnerships

Section 1.08 of the TRLPA governs service of process on domestic limited partnerships that fail to appoint or maintain a registered agent in Texas. Tex.Rev. Civ. Stat. Ann. art. 6132a-l, § 1.08. It requires a plaintiff to exercise reasonable diligence to find and serve a general partner of the limited partnership before effecting service of process through the secretary of state. Id. § 1.08(b). Because the record in this appeal does not affirmatively show that Barilich first attempted service of process on Allodial’s general partner, it does not show that Allodial was amenable to service through the Texas Secretary of State under section 1.08 of the TRLPA.

Foreign Limited Partnerships

Section 9.10 of the TRLPA governs service of process on foreign limited partnerships subject to the TRLPA. Id. § 9.10. Service on the secretary of state is proper for foreign limited partnerships subject to the TRLPA when (1) the foreign limited partnership fails to appoint or maintain a registered agent in Texas, (2) its registered agent could not with reasonable diligence be found at the registered office, (8) its registration was cancelled, or (4) it transacted business in Texas without having registered as required under the Act. Id. § 9.10(b). Once served, section 9.10(b) requires the secretary of state to forward the process to the partnership “at its principal office in the state under which the foreign limited partnership is formed as shown on the registration application.” Id.

The record does not affirmatively show that Barilich strictly complied with section 9.10. In its original petition, Barilich did not allege that Allodial is a foreign limited partnership subject to the TRLPA. Even though Barilich’s petition contained allegations that Allodial had minimum jurisdictional contacts with Texas, we cannot infer .from these allegations that Allodial was a foreign limited partnership subject to the TRLPA because the pleadings did not include this required jurisdictional allegation. See McKanna, 388 S.W.2d at 929-30 (court may not infer jurisdictional facts). Additionally, the petition alleged that Allodial may be served at its “home office” in Las Vegas, Nevada, not that it was formed in Nevada and that the Las Vegas address was its “principal office.” See Tex.Rbv.Civ. Stat. Ann. art. 6132a-l, § 9.10(b). Consequently, the record does not show that process was mailed to Allodial’s principal office in the state where Allodial was formed as required by the statute.

2. Service under the Texas Civil Practice and Remedies Code

Allodial also argues that sections 17.044(a)(3) and 17.045(b) of the Texas Civil Practice and Remedies Code do not apply and that Barilich’s attempted service of process under those provisions was not proper. Barilich argues that service of process on the Texas Secretary of State was proper under sections 17.044(a)(1) and (b) and 17.045(a).

Sections 17.044 and 17.045 of the civil practice and remedies code govern substituted service of process on the secretary of state for certain nonresidents. Tex. Crv. PRAC. & Rem.Code Ann. §§ 17.044, .045. A “nonresident” includes (1) an individual who is not a resident of this state; and (2) a foreign corporation, joint-stock company, association, or partnership. Id. § 17.041. But, as we previously noted, Barilieh’s petition alleged only that Allodial is a “Limited Partnership” not that it is a nonresident. And the petition alleged that Allodial had a principal place of business in Dallas County, Texas. Section 17.044(b) required Barilich to plead that Allodial did not maintain a regular place of business in Texas to allow substituted service on the secretary of state. See id. § 17.044(b).

In summary, the record does not affirmatively show that Barilich strictly complied with the provisions of the civil practice and remedies code for substituted service of process on a nonresident through the secretary of state. We sustain Allodial’s second issue.

Conclusion

We conclude Barilich’s petition does not allege facts which, if true, show Allodial was amenable to service through the Texas Secretary of State. As a result, the trial court did not acquire personal jurisdiction over Allodial and its entry of the default judgment was in error. Because our decision on Allodial’s second issue is disposi-tive, we do not decide Allodial’s remaining issues. Accordingly, we reverse the judgment of the trial court and remand for further proceedings. Upon remand, Allo-dial is presumed to have entered its appearance to the term of the court at which the mandate shall be filed. Tex.R. Crv. P. 128.

      . Although the parties agree that Allodial is a foreign limited partnership, we must determine this appeal from the record available to the trial court at the time of the default judgment. See Infra-Pak (Dallas), Inc. v. Normour, 852 S.W.2d 565, 567 (Tex.App.-Dallas 1992, no writ) (proof of proper service must be presented before entry of default judgment); NBS Southern, Inc. v. Mail Box, Inc., 772 S.W.2d 470, 472 (Tex.App.-Dallas 1989, writ denied) (same).


author: Justice WRIGHT.

text:
    In the Interest of A.P. and J.P., Minor Children.
    No. 05-05-00419-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 21, 2006.

      Carl Hadigian, Assistant Public Defender, Dallas, for appellant.
    Angie Holmes, Dallas County District Attorney’s Office, Dallas, for appellee.
    Marisa P. Elmore, Assistant District Attorney, Dallas, for state.
    Before Justices WRIGHT, O’NEILL, and FRANCIS.
   OPINION

Opinion by

Justice WRIGHT.

Jennifer P. (mother) appeals the trial court’s judgment terminating her parental rights to A.P. and J.P. In a single issue, mother contends the evidence is factually insufficient to show that termination was in the children’s best interest. We overrule mother’s sole issue and affirm the trial court’s judgment.

Background

Mother, who was twenty-four-years-old at the time of trial, testified that she was involved with Child Protective Services (CPS) as a child because her mother was neglectful, she was sexually abused by her mother’s friend, and she often went to school dirty and bruised. According to mother, she dropped out of school after seventh grade and began using drugs when she was fourteen. She was fifteen when she became pregnant with A.P. She stopped using drugs while she was pregnant, but after A.P. was born, she began smoking marijuana frequently. She started using cocaine when she was twenty-one.

Mother described her relationship with the children’s father as “abusive. Controlling, obsessive mentally. Sometimes physically.” When J.P. was about six-months-old, mother ended her relationship with father because she was “tired” and he was “getting into deeper drugs.” About two months after she left father, mother went to Job Corp. A.P. and J.P. stayed with their maternal grandmother and mother saw them on the weekends. She left Job Corp. because she felt she needed to be home with her children. Thereafter, she began using cocaine.

According to mother, she has had problems with her mental health from the time she was eleven. She testified that she has been anorexic, suicidal, and has recently been diagnosed as bi-polar. She first attempted to commit suicide when she was eleven or twelve, and when asked about this at trial, she claimed she was not institutionalized at that time. However, her medical records indicate she told both Timberlawn and Green Oaks Hospitals that she was institutionalized for two years when she first attempted suicide. Mother also gave a medical history of attempting suicide “two hundred or more times” but at trial said it was about twenty-five times. She explained that she was “probably lying” and was on drugs at the time she gave the medical histories and she “said a lot of things” that were not true.

CPS became involved with A.P. and J.P. in November 2003 after mother took A.P. to Children’s Hospital “to try to get a rape kit.” Mother did so because A.P.’s behavior, such as running the faucet over her genital area and soiling herself, made mother concerned about sexual abuse. When mother asked A.P. about her behavior, she told mother it was “because [mother] was having too many male companions over” and that mother was not paying attention to her when they were there. A.P. also told mother that “some guy” had touched her vagina. Later, CPS received a second referral for neglect after A.P. and J.P. went to school dirty and had lice.

During the time CPS was working with the family, mother attempted to commit suicide after A.P. told her she was “messing [A.P.] up.” At the time, mother was “doing drugs really hard.” Mother was also taking prescription medication because she was “seeing and hearing things that [she] couldn’t control.” Mother was very upset about what A.P. had told her so she took “a whole bunch of pills” and then “used some cocaine to enhance it.” She woke up some time later at Baylor Hospital. Two or three weeks later, mother cut her arm with “a blade” because she was in “so much pain [she] had to release, and [she] cut [her] arm to release the emotional pain.” A.P. saw the cuts on mother’s arm and made her hold a towel on it.

After talking with her case worker, mother admitted herself to Timberlawn Hospital. She stayed a few days and then asked to be released. However, she continued to hear voices and was still using drugs. A.P. and J.P. were removed from her care a few days later. Mother admitted that at that time, her “life was absolutely out of control.”

Since that time, mother has stopped using drugs after completing both an intensive out-patient program and a supportive out-patient program. She has been consistently drug tested by CPS since April 2004 and has not had a positive drug test. Mother has also been prescribed different medication and her mental state is much more stable. Mother testified she has completed about thirty parenting classes— ten sessions that focused on both children’s age group; ten sessions that focused on A.P.’s age group; and ten sessions that focused on J.P.’s age group. Mother also attends both couples therapy and individual therapy. She has remarried and has had a job for almost a year, the longest she has ever held a job. Her husband is also employed, and they have a two bedroom apartment which CPS determined was suitable for the children.

Joseph Mark DeYoung testified he is a therapist for A.P. and J.P. At the time of trial, A.P. was seven-years-old and J.P. was three-years-old. DeYoung had been working with the girls weekly for about seven months. DeYoung described A.P. as a very anxious child, evidenced by facial ticks and frequent references to “secrets” and imaginary friends. She also has difficulty with eneopresis and enuresis. DeY-oung described J.P. as having issues “with defiance and also pretty significant amounts of eneopresis and enuresis. General refusal to participate in any kind of toilet training.” J.P. also frequently “spaee[s] out or blank[s] out” where she stares into space or wanders off and seems to be “kind of off in another place.” DeY-oung observed that both A.P. and J.P. became more anxious and defiant after visiting with mother. In DeYoung’s opinion, the girls did not have a secure attachment with mother, and their sense of security worsened surrounding mother’s visits.

According to DeYoung, the problems he described are “absolutely” related to past trauma and chaos in the home. At one time, the girls did not see mother for a three-week period and their behavior “greatly improved.” The girls were much “brighter and much more relaxed, much more engaged with the caregivers.” Later, when CPS increased the visits to see how well mother could deal with the children, DeYoung expected their attachment with mother to increase and the visits to be more relaxed. DeYoung observed, however, that the girls’ level of attachment with mother is decreasing and getting worse. In DeYoung’s opinion, reunification is not an appropriate goal, the children do not feel secure around their mother, and there has been some type of relational injury that is unlikely to ever be repaired. DeYoung believed that if mother’s rights were terminated the girls would more likely feel a sense of security and he would be able to help the girls form attachments with others. If the girls were returned to mother’s care, DeYoung thought they would continue to reexperience the trauma of mother’s suicide attempt and drug use.

Laura Hastings testified she is a psychologist and observed mother and the girls together. She did not have any concerns about bonding between them. Hastings did, however, have concerns about mother’s “lack of awareness of appropriate boundaries ... between the parent and child.” Mother lacked confidence in her authority with them and would placate rather than setting limits. Based on Hastings observations and her review of psychological evaluations that had been done on the girls, Hastings believed mother’s relationship with the girls was more of a sibling relationship than an parent-child relationship. In Hasting’s opinion, the girls require a “whole lot of structure” and mother would not be able to provide it.

Melony Skipper-Relyea testified she is a licensed professional counselor and mother is her client. Skipper-Relyea described mother as “very motivated” and willing to take suggestions. Skipper-Relyea thought if mother was not providing enough structure for the girls, mother would be open to taking suggestions and changing. In Skipper-Relyea’s opinion, mother had made “tremendous” progress in addressing her past abuse, if mother had been depressed it was “passing,” and mother’s moods were stable. Skipper-Re-lyea also believed that much of the children’s behavior relied upon by DeYoung and Hastings could be explained by anxiety caused by being in foster care and was not necessarily the result of their relationship with their mother. In Skipper-Re-lyea’s clinical judgment, mother was “an excellent candidate for therapy and an excellent candidate to continue to improve her parenting. [Skipper-Relyea did not] see any obstacles in any mental or emotional states in order for her to do that, to be a competent parent.”

After hearing this and other evidence, the trial court found that mother knowingly placed the children in conditions or surroundings which endangered their physical and emotional well-being, knowingly allowed the children to remain in conditions or surroundings which endangered their physical and emotional well-being, and knowingly placed the children with persons who engaged in conduct that endangered the children’s physical and emotional well-being. Finally, the trial court found that termination of the parent-child relationship between mother and A.P. and J.P. was in the children’s best interest. This appeal followed.

Discussion

In her sole issue, mother contends the evidence is factually insufficient to show it was in the children’s best interest to terminate mother’s parental rights. After reviewing the record, we cannot agree.

Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by clear and convincing evidence. See Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re C.H., 89 S.W.3d 17, 23 (Tex.2002). A finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance. Thus, traditional factual standards of review do not apply to a termination finding. C.H., 89 S.W.3d at 23. Rather, when reviewing the factual sufficiency of the evidence supporting a termination finding, we inquire as to whether all the evidence, both in support of and contrary to the trial court’s finding, is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations. C.H., 89 S.W.3d at 27-29. We consider whether the disputed evidence is such that a reasonable factfinder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Id.

When deciding the issue of best interest, a number of factors have been considered by the courts. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976). Included among these are the following: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. This listing is not exhaustive, but does include the most important considerations. The absence of evidence about some of these considerations does not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s best interest. C.H., 89 S.W.3d at 27. And, while no single consideration is controlling, the analysis of one factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child. See id.; In re J.M.T., 39 S.W.3d 234, 240 (Tex.App.-Waco 1999, no pet.), rev’d on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex.2002). In conducting this review, we are mindful that the Holley test focuses on the best interest of the child, not the best interest of the parent. See J.M.T., 39 S.W.3d at 240.

In this case, the children did not testify and thus there is no direct evidence of their desires. However, the record shows that although the girls were well bonded with mother and initially missed her, they began to say they did not want to visit their mother. They also exhibited anxiety and were defiant after visiting with mother, but were much more relaxed and better behaved after not seeing mother for several weeks.

With respect to the emotional and physical needs of the children now and in the future, the emotional and physical danger to the children, mother’s parental abilities, programs available to assist mother, and mother’s plans for the children, the record shows the following: In Hastings’s opinion, mother lacked confidence in her authority with the girls, was unaware of the appropriate boundaries between parent and child, and had more of a sibling relationship than a parent-child relationship with the girls. Further, Hastings testified that because of their past, the girls required a “whole lot of structure” and Hastings did not believe mother would be able to provide it. DeYoung testified that the girls’ level of attachment with mother is decreasing and that they do not feel secure around their mother. In his opinion, the relational injury that occurred due to past trauma and chaos in the home, is unlikely to ever be repaired. DeYoung believed that if the girls were returned to mother’s care, they would continue to relive that injury, but if mother’s rights were terminated the girls would feel more secure and would be able to form attachments with others. In contrast, Skipper-Relyea believed that because mother was motivated to change and willing to take suggestions, mother was an excellent candidate to improve her parenting skills and would be able to provide enough structure for the girls. Skipper-Relyea also testified she was willing and able to work with mother both in the office and in the home with “family work.” She would do hands-on coaching about how to use time-outs, schedules, rules, the appropriate expectations for children, and problem-solving with the children, spouses, and friends. Mother had spoken with Skipper-Relyea about resuming counseling with her after Skipper-Relyea’s maternity leave and mother was “very dedicated” to resuming therapy if the children were returned to her.

Neither a representative from CPS nor JJP.’s and A.P.’s foster parents testified. Thus, there is no evidence regarding CPS’s plans for the children, nor the stability of the home or proposed placement for the girls.

Finally, there is no dispute that the record supports the trial court’s findings that mother provided a traumatic and chaotic homelife for J.P. and A.P. She was mentally unstable, used drugs, left the girls in the care of her mother who had physically and emotionally neglected mother, and attempted suicide with the girls present. It is likewise undisputed that mother was neglected, and was both physically and sexually abused as a child. Mother was poorly educated, young, and had not had an appropriate model for parenting when she had her children. She was mentally ill and the record suggests she was not properly diagnosed or treated until after A.P. and J.P. were removed.

After reviewing the evidence presented and mindful of the fact that we may not reweigh that evidence or assess the credibility of the witnesses, we conclude that the trial court’s determination that termination was in the children’s best interest is supported by factually sufficient evidence. In reaching this conclusion, we acknowledge mother’s progress and the changes made in her life. This leads us to concern regarding the lack of evidence about CPS’s involvement with and plans for the children, and about the lack of evidence regarding the abrupt change from a goal of reunification to termination shortly before the trial in this matter. Nevertheless, the question for this Court to determine is whether all the evidence, both in support of and contrary to the trial court’s finding, is such that the trial court could reasonably form a firm belief or conviction about the truth of the State’s allegations. Given the lengthy and extensive trauma of the girls’ past with mother, the girls’ anxiety after visiting with mother, expert testimony that the damage to the parent-child relationship was such that it could not be repaired, and expert testimony that mother was not capable of providing the structure necessary for the girls, we conclude the trial court could reasonably make such a determination. We overrule mother’s sole issue.

Accordingly, we affirm the trial court’s judgment.

      . Father was incarcerated, at the time of trial. After mediation, he signed an irrevocable affidavit of relinquishment and his parental rights were also terminated.

      . Eneopresis is fecal incontinence and enuresis is urinary incontinence.


text:
    In the Interest of M.M.
    No. 05-05-00796-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 22, 2006.

      Lori Ashmore Peters, Deborah Farris, Dallas, for appellant.
    Melanie Barton, Dallas, for appellee.
    Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.
   OPINION

Opinion by

Justice WRIGHT.

In a single point of error, M.M. contends the evidence is factually insufficient to support his court-ordered commitment to Green Oaks Behavioral Hospital for a period not to exceed ninety days. After reviewing the record under the appropriate standard, we overrule M.M.’s sole issue and affirm the trial court’s judgment.

A trial court may order temporary inpatient mental health services if it finds by clear and convincing evidence that the patient is mentally ill and that at least one of three criteria set forth in the mental health statute results from that mental illness. See Tex. Health & Safety Code Ann. § 574.034(a) (Vernon 2003). After a hearing, the trial court found the evidence was clear and convincing that M.M. was mentally ill, was likely to cause serious harm to himself or others, and that he suffered severe mental, emotional, or physical distress, deterioration in his ability to function independently, and was unable to make a rational and informed decision about treatment. Thus, the trial court found each of the three criteria set forth in the mental health statute and ordered M.M. to be committed to Green Oaks for a period not to exceed ninety days.

To be clear and convincing under the statute, the evidence must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm either (1) the likelihood of serious harm to the proposed patient or others, or (2) the proposed patient’s distress and the deterioration of the proposed patient’s ability to function. Id. § 574.034(d). Clear and convincing evidence is “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) (per curiam).

Because the State’s burden of proof is clear and convincing evidence, we apply a heightened standard of review. See In re C.H., 89 S.W.3d 17, 25 (Tex.2002). We must determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State’s allegations. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.2002); In re C.H., 89 S.W.3d at 25. When reviewing factual sufficiency, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder could reasonably form a firm conviction or belief that the allegations in the petition were proven. In re J.F.C., 96 S.W.3d at 266.

At the hearing, James Grant Shupe testified he is a psychiatrist and had an opportunity to examine M.M. Shupe diagnosed M.M. with schizoeffective disorder, a mental illness. M.M.’s history of mental illness dates back over ten years. In Shupe’s opinion, as a result of that illness, M.M. is likely to cause serious harm to himself or others, is suffering severe and abnormal mental, emotional or physical distress, is deteriorating in his ability to function independently and is unable to make a rational and informed decision about whether to submit to treatment.

Shupe believed M.M. is a danger to himself because he cannot provide food or shelter for himself and has become very paranoid. Due to his mental illness and paranoia, M.M. provokes others thereby putting himself in danger. M.M.’s paranoia also led Shupe to believe M.M. is a danger to others. When the police found M.M., he had four knives and he is “fascinated with weapons, is very angry and paranoid. At this point, just the way he looks at you makes you nervous ... about what he would do.” Before being admitted to the hospital, M.M. lived with his sister and her three children. M.M. told his fourteen-year-old niece that “what happened at Wichita Falls could happen to her.” M.M. now refuses to discuss this statement, so Shupe does not know exactly what M.M. meant. However, M.M.’s niece perceived the statement as threatening. A therapist who sees another of M.M.’s nieces in the home is likewise afraid of M.M. because he is so “angry and the way he paces, checking things.” M.M. is currently refusing medication because he believes it will infect him with tuberculosis.

M.M.’s mother testified that M.M.’s behavior has been getting progressively worse over the last few weeks. According to mother, until he stopped taking his medication several months before, M.M. was doing “wonderfully” and was a “very nice, passive person.” Since that time, he has changed. Recently, M.M. has changed “very significantly.” He has lost a lot of weight from the constant walking and pacing. And, according to mother, M.M. threatened his niece and was very aggressive towards mother a few days before trial. M.M. was yelling at her and told the nurses not to let her in the building. Although she has seen M.M. mentally ill before, this time he is “more aggressive, he’s angrier and a little scarier.”

M.M. testified he is not mentally ill and does not need medication. His testimony, however, indicates he was suffering from paranoid delusions. For example, rather than directly answering questions that were put to him, he often failed to respond and indicated that people were “constantly pestering him.” He explained that he often carried several knives because “[p]eo-ple do constantly pester me, pester me, pester me. They hear rumors, want to confirm them.” According to M.M., the rumors concerned things such as his “celebrity status” and that in Wichita Falls the “United States Government starts and can make tornados.”

Based on the entire record, including this and other evidence, we conclude a reasonable fact finder could form a firm belief or conviction that M.M. is mentally ill. A reasonable fact finder could also form a firm belief or conviction that as a result of that illness, confirmed by his recent overt acts and continuing pattern of behavior, there is a likelihood of serious harm to himself or others, and that he is in distress and deteriorating in his ability to function independently. Finally,, a reasonable fact finder could form a firm belief or conviction that M.M. is not able to make a rational and informed decision regarding treatment. Thus, we conclude the evidence is factually sufficient to support the trial court’s decision to commit M.M. to Green Oaks for a period not to exceed ninety days. We overrule M.M.’s sole issue.

Accordingly, we affirm the trial comet’s judgment.


author: Chief Justice THOMAS.

text:
    Nikki CARMODY and Dell James, Appellants v. STATE FARM LLOYDS and Wade Martin, Appellees.
    No. 05-04-01806-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 22, 2006.
    David R. Gibson, Dallas, for Appellants.

      Katherine Woodruff, Woodruff and Associates, Dallas, and Joseph W. Spence, Shannon, Gracey, Ratliff & Miller, L.L.P., Fort Worth, for Appellees.
    Before Chief Justice THOMAS and Justices WRIGHT and FRANCIS.
   OPINION

Opinion by

Chief Justice THOMAS.

Nikki Carmody and Dell James appeal the trial court’s judgment in favor of State Farm Lloyds and its adjuster, Wade Martin. In three issues, appellants argue the trial'judge erred in denying their motion to recuse and in hearing appellees’ summary judgment motion following the recu-sals of two other judges. We affirm the trial court’s judgment.

BACKGROUND

Appellants discovered mold in then-home and made a claim under their homeowners’ insurance policy issued by State Farm Lloyds. When the claim was not resolved to their satisfaction, appellants sued appellees, alleging they wrongfully denied coverage and refused to make a reasonable offer of settlement of appellants’ claim. The case was initially assigned to the 296th Judicial District Court but was later added to a related case in the 366th Judicial District Court. The case was subsequently transferred to the 416th Judicial District Court, Judge Chris Oldner presiding. The docket sheet reflects Judge Oldner recused himself on November 7, 2003. Judge Nathan White, local administrative judge of the district courts of Collin County, then assigned Judge Mark Rusch of the 401st Judicial District Court to preside over the case. A few months later, appellees filed a motion for summary judgment which was set for hearing on August 27, 2004. Appellants did not file a response to the motion.

Ten days before the hearing, Judge White found that Judge Rusch had also recused himself from the case. Judge White, presiding judge of the 366th Judicial District Court, appointed himself to preside over the case. Appellants’ counsel admits ■ learning of Judge White’s- assignment to the case on August 20, 2004. Three days later, appellants filed written objections to any judge hearing the summary judgment motion, alleging procedural defects in one of the prior recusals in the case. No mention was made of any grounds to recusé Judge White.

At the August 27 hearing, Judge White granted the summary judgment motion. He also concluded appellants’ motion to recuse him, made after the hearing had begun and after he had overruled appellants’ objections to hearing the summary judgment motion, was not timely made. Appellants do not challenge the merits of the summary judgment ruling in this appeal. Rather, they argue Judge White should have recused himself from ruling on the summary judgment motion and that, because he did not, the summary judgment order is void. They also contend Judge White had no authority to rule on the summary judgment motion because of procedural defects in one of the prior recusals.

STANDARD OF REVIEW

We review the trial judge’s denial of a motion to recuse for abuse of discretion. Tex.R. Civ. P. 18a(f) (if motion to recuse denied, it may be reviewed for abuse of discretion on appeal from final judgment); J-IV Invs. v. David Lynn Mach., Inc., 784 S.W.2d 106, 107 (Tex.App.-Dallas 1990, no writ). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.” Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242-43 (Tex.1985)).

Discussion

There are multiple motions to re-cuse and recusals involved in this case. We first address the most recent motion, made by appellants during the August 27, 2004 hearing before Judge White. We conclude Judge White did not abuse his discretion by concluding appellants’ motion to recuse was untimely.

Texas Rule of Civil Procedure 18a governs recusal of judges. Rule 18a(a) provides a motion for recusal must be made at least “ten days before the date set for trial or other hearing.” Tex.R. Civ. P. 18a(a). Rule 18a(e) allows a motion to be made “at the earliest practicable time prior to the commencement of the trial or other hearing” when a judge is assigned to a case within ten days of the date set for trial or hearing. Tex.R. Civ. P. 18a(e). Appellants argue the exception in rule 18a(e) applies in this case because Judge White was not assigned to the case until August 17, 2004, at the earliest. We will assume for purposes of this appeal that appellants’ motion to recuse Judge White was made under rule 18a(e).

In their first issue, appellants argue that, once the motion to recuse Judge White was made, he had no discretion to determine whether the motion was timely. Rather, his only options were to “recuse or refer” under rule 18a(c). See Tex.R. Civ. P. 18a(c). In response, appellees cite cases holding a trial judge is limited to recusal or referral only if the motion meets the requirements of rule 18a as to form and timeliness. See, e.g., Barron v. State Attorney Gen., 108 S.W.3d 379, 383 (Tex.App.-Tyler 2003, no pet.).

While courts of appeals have diverged on whether a judge may deny a recusal motion based on procedural deficiencies, our Court has generally held that the trial judge is limited to the decision to recuse or refer. See, e.g., Bourgeois v. Collier, 959 S.W.2d 241, 246 (Tex.App.-Dallas 1997, no writ) (citing Lamberti v. Tschoepe, 776 S.W.2d 651, 652 (Tex.App.-Dallas 1989, writ denied) for proposition that trial judge, when presented with recusal motion, regardless of procedural sufficiency of motion, has option only to recuse or refer). However, in none of our cases was the motion filed after the commencement the hearing in which the party sought the judge’s recusal. See Tex.R. Crv. P. 18a(e) (motion to recuse “shall be filed ... prior to the commencement of the trial or other hearing” (emphasis added)). See, e.g., Bourgeois, 959 S.W.2d at 246 (motion filed timely in relation to movant’s motion for rehearing); Lamberti, 776 S.W.2d at 651 (Lamberti filed motion to recuse which was heard and denied prior to trial); Greenberg, Benson, Fisk & Fielder, P.C. v. Howell, 685 S.W.2d 694, 694 (Tex.App.Dallas 1984, orig. proceeding) (trial judge responded by letter in September to motions for recusal filed in June and July; mandamus action commenced after date of letter); Greenberg, Fisk & Fielder v. Howell, 676 S.W.2d 431, 432-33 (Tex.App.-Dallas 1984, orig. proceeding) (motions to re-cuse filed February 1, 1984; hearing date February 23, 1984, when trial judge held recusal motions “procedurally insufficient”). The question before us is whether, under the circumstances presented in this case, the fact that the motion to re-cuse was not filed until after the hearing began makes a difference in our decision.

The hearing set before Judge White was the hearing on appellees’ motion for summary judgment. In response to the summary judgment motion, appellants filed an objection to the summary judgment hearing and, in the alternative, a motion for continuance. Only after the hearing began and Judge “White denied the objection to proceeding with the motion for summary judgment and motion for continuance did appellants file their motion to recuse him.

The rationale for the “recuse or refer” rule is to preserve confidence in the impartiality of the judiciary by minimizing a judge’s involvement in recusal proceedings. See In re Union Pac. Res. Co., 969 S.W.2d 427, 429 (Tex.1998) (Hecht, J., concurring). This rationale, however, is not offended when a trial judge concludes a motion for recusal brought after the commencement of a hearing is not filed at the earliest practicable time where the alleged grounds for recusal were known to the parties prior to the commencement of the hearing. Here, appellants, through their counsel, had known Judge White was assigned to hear the summary judgment motion at least seven days prior to the hearing. The alleged facts that would give rise to recusal were known to appellants approximately a year prior to the hearing. Knowing these facts, appellants did not question Judge “White’s impartiality until after the hearing had commenced and he had made rulings that were unfavorable to them. Because the motion for recusal was based on grounds known to the parties prior to the commencement of the hearing and was not made until after the judge heard argument and made rulings regarding the subject matter of the hearing, Judge “White did not abuse his discretion in concluding appellants’ motion for recu-sal was untimely with respect to the summary judgment hearing. See Tex.R. Civ. P. 18a(e). “We overrule appellants’ first issue.

In their third issue, appellants argue Judge White erred in granting summary judgment because the case had not been properly assigned to him following recusal by other judges. This issue requires that we address the recusal of Judge Oldner, who made a docket entry but did not sign an order of recusal until August 27, 2004, the date of the summary judgment hearing. Judge Oldner took no further action in the case between the date of the docket entry and the written order.

Appellants argue that, because Judge Oldner did not sign a written order granting the motion to recuse and because no request was made to Judge John Ovard, the presiding judge of the First Administrative Judicial District, to assign another judge to sit in Judge Oldner’s place, the assignment of the case to Judge White was error. In support of this argument, appellants cite Dunn v. County of Dallas, 794 S.W.2d 560, 562 (Tex.App.Dallas 1990, no writ). Appellants assert Judge White had no authority to sit for Judge Oldner or Judge Rusch because the motion to recuse Judge Oldner was still pending.

It is undisputed Judge Oldner did not follow the letter of rule 18a(c) when recus-ing himself. He did not enter a formal order, nor did he refer the case to the presiding judge of the administrative judicial district to assign another judge. Instead, there is a docket entry and referral to the local administrative district judge. The question we must resolve is whether these actions deprived Judge White of authority to rule on appellees’ motion for summary judgment. For the reasons that follow, we conclude they do not.

First, Dunn is distinguishable from the facts of this case. In Dunn, the trial judge had written a letter to the presiding judge of the administrative district stating he “felt compelled to recuse [himself] from this matter and request that the ease be assigned to a Judge from a different administrative region.” Dunn, 794 S.W.2d at 561. Copies of the letter were sent to all attorneys of record. The letter was placed among the papers of the cause and was, therefore, part of the appellate record. Dunn, 794 S.W.2d at 561. After the letter was written, however, the trial judge continued to preside over the case, ultimately granting summary judgment about a year later. Dunn, 794 S.W.2d at 561. On appeal, we noted “[a] fair reading of rules 18a and 18b suggests that in the event a judge should elect to recuse under either section, two things are required: (1) an order of recusal, and (2) a request to the administrative judge of the district to assign another judge to sit.” Dunn, 794 S.W.2d at 562. We held the judge’s letter sufficed as an order of recusal under rule 18a(c). Dunn, 794 S.W.2d at 562. We further held that because the letter was an order of recusal, the trial judge was without power to enter the summary judgment order. Dunn, 794 S.W.2d at 568.

Here, in contrast, Judge Oldner recused himself and did not continue to preside over the case or make any rulings. Unlike Dunn, the summary judgment order in this case was not signed by Judge Oldner. The case was sent to Judge White, the local administrative judge, for assignment. Judge White noted in his written order that Judge Oldner had recused himself. Judge White’s order also stated “[a]ny district judge in Collin County, Texas, may sit in a case for any other district Judge in Collin County, Texas,” and appointed Judge Rusch “to preside over the following case as ‘sitting for’ the 416th Judicial District Court.” Unlike the trial judge in Dunn, Judge Oldner never took any action inconsistent with his voluntary recusal. See Tex.R. Crv. P. 18a(c) (recused judge “shall make no further orders and shall take no further action in the cause except for good cause shown”). By appellants’ admission, they became aware Judge Old-ner was no longer presiding over the case by June. Judge Rusch had already presided over the case and recused himself by August 28, 2004, when appellants filed their objection to the summary judgment hearing and noted Judge Oldner had not followed the procedure required by rule 18a.

Second, although appellants argue that a motion to recuse Judge Oldner was “pending,” thereby preventing Judge White from making any rulings in the case until the motion was resolved, we disagree. By the time the motion was filed on November 13, 2003, Judge Oldner had already granted the relief requested in it by noting his recusal on the docket sheet, refraining from any further activity and referring the case to Judge White for reassignment. Judge White’s written January 29, 2004 order noted Judge Oldner had recused himself and assigned Judge Rusch to preside over the case. Thus, the recusal motion was moot and no longer pending after that date. See Young v. Young, 168 S.W.3d 276, 287 (Tex.App.-Dallas 2005, no pet.) (issue becomes moot when one seeks judgment on matter that cannot have practical legal effect on then-existing controversy).

Finally, this is not a case involving retired or former judges whose authority to preside over a case must come from an assignment. Here, any sitting district judge in Collin County could have heard the motion for summary judgment. The administrative order of January 29, 2004, appointed Judge Rusch “to preside over the ... case as ‘sitting for’ the 416th Judicial District Court, and noted [ajny district judge in Collin County, Texas may sit in a case for any other district judge in Collin County, Texas.” Civil procedure rule 330 permits one judge to sit for another. See Tex.R. Crv. P. 330(e) (“the judges of such courts may ... sit in any other of said courts and there hear and determine any case there pending”); Tex.R. Crv. P. 330(h) (“any judge may hear and determine motions”); see also Starnes v. Holloway, 779 S.W.2d 86, 96 (Tex.App.-Dallas 1989, writ denied) (rule 330(e) consistent with Texas Constitution allowing district judges to exchange districts or hold court for each other when they deem expedient; rule effectively makes “each district judge the judge of any other district court in the county”). A local administrative judge may implement and execute local rules of administration, including the assignment, docketing, transfer, and hearing of cases. Tex. Gov’t Code Ann. § 74.092(1) (Vernon 2005). Similarly, the August 17, 2004 administrative order designated Judge White “to preside over the ... case as ‘sitting for’ the 416th Judicial District Court,” noted Judge Rusch’s voluntary recusal, and noted “any district judge in Collin County, Texas may sit in a case for any other district judge in Collin County, Texas.” Under the Texas Constitution, by statute, and by rule, one district judge may sit for another. See Tex. Const. , art. V, § 11 (“And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law.”); Tex. Gov’t Code Ann. § 24.303(a) (Vernon 2004) (“The judges of those courts may, in their discretion, exchange benches or districts from time to time.”); Tex.R. Civ. P. 330(e) (“Where in such county there are two or more district courts having civil jurisdiction, the judges of such courts may, in their discretion, exchange benches or districts from time to time, and may transfer cases and other proceedings from one court to another, and any of them may in his own courtroom try and determine any case or proceeding pending in another court without having the case transferred, or may sit in any other of said courts and there hear and determine any case there pending....”). Judge White, sitting for the 416th Judicial District Court, properly heard the summary judgment motion. We overrule appellants’ third issue.

In their second issue, appellants claim the rulings and actions taken on the various recusal motions render the summary judgment void as a matter of law. Appellants do not challenge the merits of the summary judgment, nor do they claim ap-pellees failed to conclusively establish their right to summary judgment. Because appellants challenge to the summary judgment is premised solely on their recusal complaints and we have already concluded there was no reversible error with respect to those complaints, we overrule appellants’ second issue.

We affirm the trial court’s judgment.

      . We note appellants only complain of issues relating to recusal, not disqualification. Unlike recusal, an argument that a trial judge is constitutionally disqualified cannot be waived and may be raised at any point in the proceeding. See Bank of Tex., N.A. v. Mexia, 135 S.W.3d 356, 360-61 (Tex.App.-Dallas 2005, pet. denied).