Judicial Committee on Information Technology

Mission: To establish standards and guidelines for the systematic implementation and integration of information technology into the trial and appellate courts in Texas

My Photo
Location: The Body of Christ, Texas, United States

dannoynted1, my family, sports, football, baseball, coaching, educating, taking on and kicking ass on the GOLIATHS of South Texas, Political & PR Strategy, research, Law, Jurisprudence, the Little People, kenedy, kennedy, sarita, catholic, pedophiles, grace, marc cisneros, king ranch, la parra, dna, ann matilde fernandez, defenzor, corpus christi, texas, kingsville, kleberg, nueces, oswald, nixon, lbj, assassination, mifflin, turcotte, gracida, diocese, vatican, alice, exxon, trappist monk, jacob floyd, brother leo, laureles, chapman, ske, oden, bush, attorney, nesbitt, suess, oil, energy, cia, argentina, kfatso, armstrong, parr, duval, rowland, jfk, de rance foundation, garriga, adami, michael j sullivan, crimen solicitationis, appleby, exxon, humble, attorney, fraud, petra vela de vidal, saltillo, pinkerton

Sunday, December 07, 2008

JP Judges Are Not Legally Trained And Make Unqualiified Decisions Harmful And Abusive, Make A Complaint, Put It In Writing, Take Action!!

Judge Complaint Form

State Commission on Judicial Conduct

PO Box 12265 Austin, TX 78711-2265 Tel. (512) 463-5533 · Toll Free: (877) 228-5750

If you are filing a complaint about more than one judge, please use a separate form for each judge.

Please note that faxed complaints will NOT be accepted

For SCJC use only.

Your name: _____________________________________ Mailing Address: _________________________________ City, State Zip: __________________________________

Date of Birth: ___________ TX Driver’s License: _________________ Social Security #: _________________________________________ Your Phones: Day (_____) __________________________ Cell/Other (_____) __________________________

Judge: ________________________________________ Court Number: _________________________________ City and County: _______________________________

Evening (_____) _______________________________Best time to call you: __________________A.M./ P.M.

If your complaint involves a court case, please provide the following information:

Cause Number: _______________________________ Status of your case: o Pending o Concluded o On appeal Your attorney: ________________________________ Opposing Attorney: ______________________________ Address: ____________________________________ Address: ______________________________________ City/Zip: ____________________________________ City/Zip: ______________________________________ Phone Number(s): _____________________________ Phone Number(s): _______________________________

PLEASE FILL IN ALL INFORMATION AVAILABLE FOR ANY WITNESSES (attach additional pages as needed) Name: ______________________________________ Name: __________________________________________ Address: ____________________________________ Address: ________________________________________ Phone Number(s): _____________________________ Phone Number(s): _________________________________ What did this person witness? ____________________ What did this person witness? ________________________

If you are submitting documents, please provide copies, not originals. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I understand that as part of the Commission’s investigation the judge may be provided a copy of this complaint. Please note – the Commission will do its best to maintain your confidentiality, if you so request. However, it may not be possible for us to pursue our investigation without revealing your identity at some point. If it is necessary to reveal your identity directly to the judge, we will advise you before proceeding.

I request that my identity be kept confidential. Yes _____ No _____

Signature: _____________________________________ Date: __________________

How did you hear about the State Commission on Judicial Conduct? (please select one) __ State Bar of Texas ___ Another State agency ___ News media ___ Attorney ___ Friend ___ Other: ______________________________ Please type or print the details of your complaint on the reverse side.

Revised 02/10/2006 __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________ __________________________________________________________________________________________

Details of Complaint

Please type or print the factual details of your complaint in the space provided below. Please include the date(s) of the alleged misconduct. If more space is needed, attach additional sheets. Please sign and date each additional sheet. Your complaint should be as specific as possible, PLEASE DO NOT CITE CASE LAW IN YOUR COMPLAINT.

Date(s) of Alleged Misconduct: _______________________________________________________________ Factual Details of your complaint: ____________________________________________________________

Printed Name: ____________________________________________________

Signature_________________________________________________________ Date_______________

Revised 01/13/2004

Friday, June 08, 2007

Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?

Google Yourself Corpus Christi: When Carlos Valdez Confesses Error Does Not The Same Rule Apply?

First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities.

"courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases."

And if they are "willing to overlook even obvious constitutional flaws and glaring illegalities when Prosecuting & reviewing death penalty cases."

WATT about all of the other cases?

How many "overlooks" of
"constitutional flaws" or "glaring illegalities" have become tools of Cheating Prosecutors who have forgotten "Prosecutors, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.

How many Prosecutors deliberately commit the error of failing to file a reply brief in an Appeal Process because it deprives the appellant of exculpatory testimony, evidence, and confessions of error or witness tampering by the State Prosecuting Attorney?

Friday, Jun. 16, 2000

Earlier this month, Vincent Saldano, one of the 468 inmates on Texas' death row, had his death sentence vacated. This development was duly reported in the press. But accounts of Saldano's good fortune uniformly failed to appreciate what makes his reprieve truly newsworthy and potentially a landmark.

Saving Saldano: Texas Confesses Error


Saldano was not freed from the prospect of execution by the actions of a court or even, as occasionally happens, by the clemency of a governor. His death sentence was erased because Texas, through its newly created office of the solicitor general, "confessed error" in his case -- that is, it admitted, despite defeating Saldano's initial appeals in court, that his death sentence was illegally obtained. Quite simply, this never happens, either in Texas or in the dozens of other states with active death penalty laws. It is thus worth pausing to consider the value and potential implications of Saldano's case as well as the notion of confessing error.

Saldano had received a death sentence in part due to profoundly troubling testimony by a state expert witness at the sentencing phase of his trial. The expert, a clinical psychologist named Walter Quijano, suggested that Saldano should be executed because, as an Hispanic, he posed a special risk of future dangerousness to society. To support this astonishing conclusion, the expert pointed out that Hispanics make up a disproportionately large amount of Texas' prison population.

It does not take a tenured professor of constitutional law to realize that linking racial identity with a propensity for violence was not only bizarre but also a violation of the equal protection clause. Indeed, that it should take a confession of error by the state to correct this problem highlights at least two problems in the current administration of the death penalty. First, in seeking the death penalty, prosecutors sometimes overlook glaring illegalities. The same flaw identified in Saldano's case infects at least seven other Texas capital cases. Second (and perhaps even more distressing), courts, especially state courts, are too often willing to overlook even obvious constitutional flaws when reviewing death penalty cases. After all, before the state's confession of error, Saldano had lost all of his appeals.

Under these circumstances, one might think that confessions of error would be, if not commonplace, at least occasional. On average, the Solicitor General of the United States confesses error in two or three criminal cases every year -- even though it is a safe bet that federal prosecutions, conducted by better trained lawyers with greater supervision, are less likely to contain obvious legal errors than their state counterparts. As the Supreme Court recognized when endorsing the practice in 1942, "the public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error, when, in their opinion, a miscarriage of justice may result from their remaining silent." But as a practical matter, states never confess error in death penalty cases (even though courts overturn roughly two-thirds of all death sentences as legally infirm) -- and some states candidly admit that their policy is never to confess error.

Mutual Distrust

Why? One crucial and usually overlooked factor is the deep antagonism that has grown up over time between state death penalty prosecutors and the death penalty abolitionist lawyers who seek to foil them in every case. The abolitionists, prosecutors know all too well, never concede that their clients deserve the death penalty or that the death penalty was legally imposed -- no matter how flimsy their arguments in a given case. Rather, they use every procedural and substantive trick in the book to delay executions.

There can be no denying that such abolitionist tactics have angered and frustrated state prosecutors. And one response to these understandable emotions has been for prosecutors to mirror the fight-to-the-bitter-end approach of their opponents.

The problem with this reciprocation, however, is simply that the ethical duties of prosecutors and defense attorneys are vastly different. Defense attorneys are duty-bound to scratch and claw to win for their clients. Prosecutors, by contrast, despite striking hard blows, must never lose sight of their ultimate obligation to do justice in every case.

That may sound trite and perhaps overly idealistic, but it has a practical side as well. Prosecutorial confessions of error -- knowing when to fold them, as it is known -- establish credibility. They create trust in the system, a sense that someone is being careful and exercising sound judgment, that extends far beyond any single case. And that can make a world of difference for someone like me, who is not morally opposed to the death penalty but skeptical of how it is imposed.

Death Penalty Politics

In addition, the reluctance of state prosecutors to confess error is a clear reflection of how politics affects the death penalty. Up until now, anyway, undoing a death sentence was akin to political suicide for an elected district attorney or state attorney general, or for any state official with ambitions for re-election or higher office. And yet the willingness of Texas' new solicitor general to confess error in the Saldano case suggests a possible turning point. With the current groundswell of death penalty opposition based on the possibility of executing an innocent person, elected officials may now find some advantage in approaching capital cases (even those where innocence is not an issue) with a greater degree of care and honesty.

case will start a broad trend. But there is reason to believe that the tide is indeed turning. On June 9, Texas Attorney General John Cornyn announced the results of an investigation into other death penalty cases involving testimony by state expert Walter Quijano. Cornyn acknowledged that Dr. Quijano had provided testimony in six other death penalty cases similar to his improper testimony in the Saldano case. Cornyn's staff has advised defense lawyers for the six inmates now on death row that his office will not oppose efforts to overturn their sentences based on Quijano's testimony. In response, a pessimist might note that Texas is appealing a ruling in another capital case that the defendant received inadequate counsel -- when, indisputably, his lawyer slept through much of the trial. But doing the right thing has a contagious quality to it. Or at least so we can hope.

Edward Lazarus, a former federal prosecutor, is the legal correspondent for Talk Magazine and the author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

Tuesday, March 06, 2007


A. Sources of Law, Organization, and Websites
The Texas Unemployment Compensation Act is found at TEX. LABOR CODE ANN.
The “Texas Workforce Commission” (referred to herein as “TWC”) is the state agency
that administers the act pursuant to TEX. LABOR CODE ANN. CHAPTER 301. Prior to 1995,
the agency that administered the act was called the “Texas Employment Commission,” and the
older case law will refer to it (or TEC) rather than the Texas Workforce Commission or TWC.
Pursuant to TEX. LABOR CODE ANN. §§301.061 and 302.002, the TWC has enacted rules and
regulations, and the rules and regulations for unemployment insurance may be found at 40 TEX.
has a detailed website at http://www.twc.state.tx.us. You will need to make sure
that you have Adobe Acrobat Reader to access many of the items in the website. When you
open the website, it will have a map of Texas surrounded by boxes with various headings that are
interactive links to the website. Click on the heading that says “JOB SEEKERS AND
EMPLOYEES”. When you click on this heading, it will take you to a table of contents and the
topics are also interactive links to the site. Click on the heading that says “Unemployment Claim
and Appeals Information,” and it will take you to the table of contents for “Unemployment
Claim and Appeals Information,” which is located at the following address:
http://www.twc.state.tx.us/customers/jsemp/jsempsub2.html. Another helpful part of the website
is the table entitled “Laws: Statutes and Rules” located at
http://www.twc.state.tx.us/customers/rpm/rpmsub1.html and the headings are interactive links to
the laws and rules.
The website includes a complete copy of the above mentioned rules, and the index to the
rules may be found in a table located at http://www.twc.state.tx.us/twcinfo/rules/twcrules.html.
The unemployment compensation rules are found in Chapter 815 in the table and may be
accessed in either PDF (requires Adobe Acrobat to read) or Word 97 format. In addition to the
rules, the TWC Appeals Manual, which describes the appeals process and states the procedures
for the handling of appeals, may be found at http://www.twc.state.tx.us/ui/appl/app_man1.html.
The TWC Appeals Policy and Precedent Manual, which contains digest paragraphs of case
holdings made or approved by the Commission and designated by the Commission to stand as
precedent, is available online also at http://www.twc.state.tx.us/ui/appl/app_manual.html.

207.041. SERVICES IN EDUCATIONAL INSTITUTIONS: "reasonable assurance that the individual will perform services

Benefits are not payable to an individual based on services
performed in an instructional, research, or principal
administrative capacity for an educational institution for a week
beginning during the period between two successive academic years
or terms or under an agreement providing for a similar period
between two regular but not successive terms if:
(1) the individual performed the services in the first
of the academic years or terms; and
(2) there is a contract or reasonable assurance that
the individual will perform services in that capacity for any
educational institution in the second of the academic years or
(b) Benefits are not payable to an individual based on
services performed for an educational institution in a capacity
other than a capacity described by Subsection (a) for a week that
begins during a period between two successive academic years or
terms if:
(1) the individual performed the services in the first
of the academic years or terms; and
(2) there is a reasonable assurance that the
individual will perform the services in the second of the academic
years or terms.
(c) Notwithstanding Subsection (b), if benefits are denied
to an individual for any week under Subsection (b) and the
individual is not offered an opportunity to perform services for
the educational institution for the second of the academic years or
terms, the individual is entitled to a retroactive payment of the
benefits for each week that:
(1) the individual filed a timely claim for benefits;
(2) the benefits were denied solely because of
Subsection (b).
(d) Benefits are not payable to an individual based on
services performed for an educational institution for a week that
begins during an established and customary vacation period or
holiday recess if:
(1) the individual performed the services in the
period immediately before the vacation period or holiday recess;
(2) there is a reasonable assurance that the
individual will perform the services in the period immediately
following the vacation period or holiday recess.
(e) Benefits are not payable as provided under this section
to an individual based on services performed in an educational
institution if the individual performed the services while employed
by an educational service agency. For the purposes of this
subsection, "educational service agency" means a governmental
agency or other governmental entity that is established and
operated exclusively to provide services to one or more educational

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.

TPU 105.00: Substitute teachers may have reasonable

7. The following is current Commission policy, Appeal No. 82-4799-10-0782 (TPU 105.00), with regard to substitute teachers:

8. The following are some factors the Hearing Officer should keep in mind when deciding whether or not a substitute teacher had reasonable assurance of being called the next year or term:

    1. The Hearing Officer should find out how long the claimant has been on a substitute teacher list for this employer and how many times they have been called.

    2. The Hearing Officer should also determine the total number of people on the past substitute list and the probable number of people on the next year's list.

    3. The method the employer uses in determining what people will be called from the substitute list should be explored.



TPU 105.00


Appeal No. 82-4799-10-0782. Substitute teachers may have reasonable

assurance of continued employment within the meaning of
Section 3(f) (now codified as Section 207.041) of the Act. In determining
whether such reasonable assurance exists with regard to
substitute teachers, the following criteria should be utilized:
The school district must furnish to the Commission
written statements which provide facts that the substitute
teacher has been asked to continue in the
same capacity for the following academic year. Simply
placing the substitute teacher on a list for the following
year does not establish reasonable assurance.
It must be shown that both parties expect the relationship
to resume at the beginning of the following
year. The assurance must also be based on past experience
with regard to the number of substitutes
needed in the past.

Saturday, June 03, 2006

243 police officers currently or formerly employed by the City of Corpus Christi, contend the trial court erred

NUMBER 13-03-00559-CV




LARRY YOUNG, ET AL., Appellants,



On appeal from the 94th District Court of Nueces County, Texas.


Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Hinojosa

This is an appeal from the trial court=s order granting the motion for summary judgment of appellee, City of Corpus Christi. In a single issue, appellants, 243 police officers currently or formerly employed by the City of Corpus Christi, contend the trial court erred in concluding that their claims are barred by res judicata and/or collateral estoppel. We affirm in part and reverse and remand in part.
A. Background
On November 5, 1999, twenty-one of these 243 police officers[1] (AOriginal Plaintiffs@) filed suit against the City in the 117th District Court of Nueces County. On December 15, 1999, the City removed that case to the United States District Court for the Southern District of Texas, Corpus Christi Division, and the case was docketed as Civil Action No. C-99-536.
1. The Prior Federal Suit
In their petition, the Original Plaintiffs claimed that the City had required them to work more hours during a calendar week than the majority of other municipal employees and had failed to compensate them for hours worked in excess of 40 hours per week at the rate of not less than one and one-half of the employee=s regular rate of pay. The Original Plaintiffs further claimed that the City had violated (1) the Fair Labor Standards Act (FLSA),[2] (2) the Texas Local Government Code,[3] and (3) the collective bargaining agreements that the City had negotiated with the Corpus Christi Police Officers Association. The Original Plaintiffs asserted that in addition to typically working ten-hour shifts, four days per week, prior to the start of each and every shift they were required to attend a fifteen-minute briefing period, for which they received neither regular nor overtime compensation.
The Original Plaintiffs later filed an amended complaint, asserting that the City had failed to properly credit employees= sick leave and personal leave accounts. The federal district court, however, struck the amended complaint because it was untimely filed, and the Original Plaintiffs had not requested leave to file the complaint after the court=s deadline for amended pleadings had expired.
Both the City and the Original Plaintiffs moved for summary judgment. In their motion, in addition to asserting that the City had failed to compensate them for hours worked in excess of forty hours per week (pre-shift briefing periods), the Original Plaintiffs claimed that (1) the City had failed to properly calculate their regular rate of pay for the purpose of overtime compensation and comp-time remuneration by not incorporating certain Aadd-ins,@[4] (2) officers were not being afforded the proper number of vacation and sick hours, and (3) the City had failed to properly credit vacation and sick time. However, because these additional claims were not raised in the Original Plaintiffs= complaint, the federal district court found that they were raised for the first time in the motion for summary judgment and did not consider them.
The district court analyzed the officers= compensation for the pre-shift briefing periods under the FLSA, the Texas Local Government Code, and each collective bargaining agreement, and concluded that (1) Aunder the terms of the collective bargaining agreements, plaintiffs are paid on a salary basis for the defined >workweek,=@ and Athe evidence shows that plaintiffs do receive regular compensation for the briefing period because the defined >workweek= encompasses the 15 minute briefing period;@ (2) the City meets the requirements for a section 207(k)[5] exemption for a seven-day work period and, therefore, is not required to pay overtime until the law enforcement employee has worked more than 43 hours; (3) the collective bargaining agreements prevail over section 142.0015 of the Texas Local Government Code for purposes of establishing the maximum regular pay workweek; and (4) the collective bargaining agreements define a regular workweek as 41.25 hours and incorporate the pre-shift briefing period as part of the regular hours of a workweek. Accordingly, the federal district court granted the City=s motion for summary judgment on the issue of compensation for pre-shift briefing periods only.
The Original Plaintiffs appealed the federal district court=s decision to the U.S. Court of Appeals for the Fifth Circuit. However, the Original Plaintiffs later voluntarily dismissed the appeal before the court decided the case.
2. The Current Suit
In February 2001, the twenty-one Original Plaintiffs filed the underlying suit in the 94th District Court of Nueces County. The Original Plaintiffs were subsequently joined by an additional 222 police officers for a total of 243 plaintiffs.
In the underlying suit, appellants asserted that (1) the City had failed to include all Aadd-ins@ when calculating an officer=s regular rate of pay for the purpose of determining proper overtime compensation and comp-time rates of remuneration; (2) officers were not compensated for hours worked in excess of 40 hours per week, in violation of the FLSA, the Texas Local Government Code, and the collective bargaining agreements; (3) the City improperly maintained a policy that overtime worked of fifteen minutes or less was not compensated; (4) officers were not afforded the proper number of vacation and sick hours; (5) sick leave and vacation time were not being properly credited; (6) retirement Adrag-up@ pay was not being properly credited; (7) there were math errors in the calculation of salary and benefits; (8) there were record keeping violations in the records of wages and hours; and (9) the City had failed to properly compensate officers for, among other things, (a) time they were required to stand by, (b) time engaged in various training classes, (c) time driving a car on City business, (d) time spent servicing and maintaining police vehicles, (e) time spent organizing, operating, and administering a community-policing-related Little League baseball program, (f) the care and maintenance of police dogs by those officers to whom they were assigned, and (g) various law enforcement functions performed Aoff the clock.@
On March 17, 2003, the trial court granted partial summary judgment in favor of the City, concluding that all of appellants= claims, except those for breach of contract involving the interpretation of the terms Aregular rate of pay,@ were barred by res judicata. The City then filed a second motion for summary judgment asserting that the remaining breach of contract claims were also barred by res judicata. On August 2, 2003, the trial court agreed that appellants= remaining breach of contract claims were barred by res judicata and granted the City=s second motion for summary judgment.
In a single issue, appellants contend the trial court erred in concluding that their claims are barred by res judicata and/or collateral estoppel.
B. Standard of Review
We review the granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A movant for summary judgment must show that (1) there is no genuine issue of material fact, and (2) he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When reviewing a summary judgment, we take as true all evidence favorable to the non‑movant and indulge every reasonable inference in the non‑movant's favor. Id. at 549.
For summary judgment to be proper, the City, as movant, was required to establish all elements of the affirmative defense of res judicata as a matter of law. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); see also Ford v. City State Bank of Palacios, 44 S.W.3d 121, 131 (Tex. App.BCorpus Christi 2001, no pet.) (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 627‑28 (Tex. 1992)) (noting that summary judgment is proper in a case barred by res judicata).
C. Res Judicata
Because the prior judgment was issued by a federal district court, federal law controls the determination of whether res judicata bars a later state court proceeding. Meza v. Gen. Battery Corp., 908 F.2d 1262, 1265 (5th Cir. 1990); Eagle Prop., Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1990). Four requirements must be met for res judicata to apply: (1) the parties must be identical in both suits; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same cause of action must be involved in both cases. Meza, 908 F.2d at 1265.
None of the parties in this case contend that the federal district court was not a court of competent jurisdiction in the prior lawsuit, nor do they contend that the court's summary judgment was not a final judgment on the merits. Therefore, we will not address those elements.
However, appellants contend that (1) the present claims are not the same cause of action as the prior federal suit, and, in the alternative, (2) the trial court erred in granting summary judgment against the 222 appellants who were not parties to the prior federal suit because the parties are not identical.[6]
1. Causes of Action
Under res judicata, as applied by the federal courts, a final judgment on the merits is transactional in nature and, thus, precludes parties from relitigating issues that were or could have been decided in the prior action. Ellis v. Amex Life Ins. Co., 211 F.3d 935, 938 (5th Cir. 2000); Collins v. City of Corpus Christi, No. 13‑03‑00428‑CV, 2006 Tex. App. LEXIS 2379, at *22 (Tex. App.BCorpus Christi Mar. 30, 2006, no pet. h.). Thus, the critical issue is whether the two actions under consideration are based on the same nucleus of operative facts. Ellis, 211 F.3d at 938; Southmark Props. v. Charles House Corp., 742 F.2d 862, 870‑71 (5th Cir. 1984). In this inquiry, we look to the factual predicate of the claims asserted, not the legal theories upon which the plaintiff relies. Eubanks v. Fed. Deposit Ins. Corp., 977 F.2d 166, 171 (5th Cir. 1992); Collins, 2006 Tex. App. LEXIS 2379, at *22.
All of the claims asserted by appellants in the instant case, and all those asserted or attempted in the prior suit, involve the City=s methodology and practices in determining (1) the number of hours in a standard Aworkweek,@ (2) employees= regular rate of pay, (3) overtime hours and pay, and (4) calculation and crediting of vacation and sick time. See Collins, 2006 Tex. App. LEXIS 2379, at *26 (Athe Fifth Circuit has held that theories which were the subject of an untimely motion to amend, filed in the earlier action, could have been brought in the earlier action@) (quoting Nilsen v. Moss Point, 701 F.2d 556, 563 (5th Cir. 1983)). We conclude that appellants= claims in the present case involve the same nucleus of operative facts as those asserted in the prior federal suit,[7] see Collins, 2006 Tex. App. LEXIS 2379, at *25, and thus assert the same causes of action for the purposes of res judicata.
2. Identity of Parties
We next turn to whether the parties in both suits are identical for purposes of res judicata. It is undisputed that twenty-one of the appellants in this case are the same twenty-one Original Plaintiffs in the prior federal suit. However, the remaining 222 appellants were not named parties in the prior federal suit.
In general, it is a violation of due process Ato bind litigants to a judgment rendered in an earlier litigation to which they were not parties and in which they were not adequately represented.@ Richards v. Jefferson County, 517 U.S. 793, 794 (1996) (citing Hansberry v. Lee, 311 U.S. 32, 37 (1940)). However, Afederal courts have nevertheless held that in certain circumstances judgments can bind persons not party to the litigation in question.@ Meza, 908 F.2d at 1266. Traditionally this preclusive effect extends to persons "in privity" with the parties to the litigation. See Southwest Airlines Co. v. Tex. Int=l Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977). APrivity@ denotes a legal conclusion that Athe relationship between the one who is a party on the record and the non‑party is sufficiently close to afford application of the principle of preclusion,@ rather than itself being a judgmental process or reason to include or exclude a person from the binding effect of a prior judgment. Id. (quoting Vestal, Preclusion/Res Judicata Variables: Parties, 50 Iowa L. Rev. 27 (1964)). Thus, Aprivity is merely another way of saying that there is sufficient identity between parties to prior and subsequent suits for res judicata to apply.@ Id.
For res judicata purposes, the federal courts have determined that privity exists in just three narrowly‑defined circumstances: (1) where the non‑party is the successor in interest to a party's interest in property, (2) where the non‑party controlled the prior litigation, and (3) where the non‑party's interests were adequately represented by a party to the original suit. Meza, 908 F.2d at 1266; Southwest Airlines, 546 F.2d at 95. Here, the remaining 222 appellants are not successors in interest to any property interest of the twenty-one Original Plaintiffs; nor is there any evidence that the twenty-one Original Plaintiffs controlled the prior litigation. Therefore, privity only exists if we conclude that the remaining 222 appellants= interests were adequately represented in the prior federal suit by the twenty-one Original Plaintiffs.
The federal courts have identified several circumstances under which a party may be considered bound as a result of adequate representation: (1) authorized representation, where Aa non‑party is bound if he authorized a party in the prior suit to represent his interests;@ (2) class or associational representation, where a non-party is bound if he was represented as a member of a class or by an association in the original litigation; and (3) virtual representation, where Aa party to the original suit is >so closely aligned to the non‑party's interests as to be his virtual representative.=" Meza, 908 F.2d at 1266-67 (quoting Aerojet‑Gen. Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), appeal dismissed, 423 U.S. 908 (1975)); Southwest Airlines, 546 F.2d at 95. ACourts have tended to treat authorized representation, class representation, associational representation, and virtual representation as synonymous with adequate representation for res judicata purposes.@ Meza, 908 F.2d at 1267.
We first note that while the Original Plaintiffs filed a motion in the prior federal case for class certification, that motion was withdrawn and no class was ever certified. Therefore, class representation is not available to establish privity.
a. Authorized Representation
Of the remaining appellants in the current suit, 188 attempted to join the prior federal suit as party plaintiffs by filing notices of consent under section 216(b) of the FLSA.[8] See 26 U.S.C.S. ' 216(b) (2006). However, the federal district court struck the notices of consent, and those appellants were not joined as party plaintiffs to the federal suit. Nonetheless, the City asserts that the written consents of these 188 appellants equate to authorized representation.
Section 216(b) of the FLSA provides that ANo employee shall be a party plaintiff to any . . . action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.@ 26 U.S.C.S. ' 216(b) (2006). Consequently, an individual who is not named in a complaint is not a party, is not bound by the adjudication, and is not barred from filing an individual claim, unless he affirmatively Aopts in@ by filing a written consent‑to‑join with the court. Kinney Shoe Corp. v. Vorhes, 564 F.2d 859, 862 (9th Cir. 1977). Furthermore,Aone employee may not represent another unless the represented employee has filed a written consent to become a party plaintiff in the court in which the action is brought.@ La Chapelle v. Owens‑Illinois, Inc., 513 F.2d 286, 288 (5th Cir. 1975).
We agree with the City that the filing of a consent form under the FLSA can create a situation of authorized representation. However, that is not the situation here. The City cites no legal authority, and we have found none, showing that a consent form that was struck by the trial court and not filed as part of the record can bind a non-party. Accordingly, we conclude there was no authorized representation of the remaining appellants in the prior suit.
b. Virtual Representation
The City further asserts that privity exists because the interests of the twenty-one Original Plaintiffs were so closely aligned to the interests of the remaining 222 appellants that they constituted virtual representatives. The City argues that the remaining 222 appellants (1) share the same interests as the Original Plaintiffs in recovering additional straight time and overtime pay, and (2) are represented by the same attorneys that represented the Original Plaintiffs.
However, Avirtual representation demands the existence of an express or implied legal relationship in which parties to the first suit are accountable to non‑parties who file a subsequent suit raising identical issues.@ Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir. 1978); see Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 (5th Cir. 1985); Southwest Airlines, 546 F.2d at 97 (reviewing relationships where virtual representation has been found, including Aestate beneficiaries bound by administrators, presidents and sole stockholders by their companies, parent corporations by their subsidiaries, and a trust beneficiary by the trustee.@ (citations omitted)). The underlying rationale for allowing virtual representation is that the relationship between the parties is sufficiently close that Athe nonparty has in effect had his day in court.@ Freeman, 771 F.2d at 865 (quoting Hardy v. Johns‑Manville Sales Corp., 681 F.2d 334, 339 (5th Cir. 1982)). ABecause res judicata denies a non‑party his day in court, the due process clauses prevent preclusion when the relationship between the party and nonparty becomes too attenuated.@ Southwest Airlines Co., 546 F.2d at 95 (citing Hansberry v. Lee, 311 U.S. 32 (1940)); see U.S. Const. amend. XIV, ' 1; Tex. Const. art. I, ' 19. Although appellants may be co-workers with similar interests, that is not enough to establish privity through virtual representation and deny the remaining 222 appellants their Afull and fair opportunity to litigate an issue.@ See Hardy, 681 F.2d at 338. APrivity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts.@ Id. at 340 (quoting Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971)); see Pollard, 578 F.2d at 1008 (rejecting virtual representation between two groups where parties had identical interests in the determination of an issue, were represented by the same attorneys, and presented complaints that were identical on the relevant issue). We conclude that there is insufficient identity of parties for purposes of res judicata.
The sole issue of the twenty-one Original Plaintiffs is overruled. The sole issue of the remaining 222 appellants is sustained.
We affirm the trial court=s order granting the City=s motion for summary judgment against Larry Young, David Cook, Isaac Valencia, John Valentine, Rocky Vipond, Carlos Rios, Julie Hernandez, Robert Diaz, Duane Pacheco, Charles Bartels, David Leal, Sam Granato, Domingo Ibarra, Russell McNorton, Sr., Don Canchola, Albert Leal, Sr., Wayne Hodge, John Rodriguez, Arnulfo Garcia, Arnulfo Guerrero, Jr., and O.V. Morales. We reverse the trial court=s summary judgment order against the remaining 222 appellants and remand the case to the trial court for further proceedings.


Memorandum Opinion delivered and filed
this the 18th day of May, 2006.
[1] The twenty-one appellants who were parties in the prior federal suit are: Larry Young, David Cook, Isaac Valencia, John Valentine, Rocky Vipond, Carlos Rios, Julie Hernandez, Robert Diaz, Duane Pacheco, Charles Bartels, David Leal, Sam Granato, Domingo Ibarra, Russell McNorton, Sr., Don Canchola, Albert Leal, Sr., Wayne Hodge, John Rodriguez, Arnulfo Garcia, Arnulfo Guerrero, Jr., and O.V. Morales.
[2] See 29 U.S.C.S. ' 207 (2006).
[3] See Tex. Loc. Gov=t Code Ann. ' 142.0015 (Vernon 1999).
[4] The Aadd-ins@ which the parties argue were not incorporated in the regular rate include (1) shift-differential pay, (2) restricted on-call compensation, (3) field training officer pay, (4) education incentive pay, (5) clothing and equipment pay, (6) bomb squad pay, (7) breathalyzer certification pay, (8) pistol pay, (9) dog handler pay, (10) SWAT pay, (11) hostage negotiation team pay, and (12) dive team pay.
[5] 29 U.S.C.S. ' 207(k) (2006).
[6] The City asserts that the issues raised by appellants are waived because they are being presented for the first time on appeal. We disagree. Our review of the record shows that all arguments herein addressed were presented to the trial court in the motion for summary judgment of one or the other of the parties. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (noting that an appellate court cannot reverse a summary judgment based on an issue not presented to the trial court). Furthermore, a Anon‑movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant's motion are insufficient as a matter of law to support summary judgment.@ Id.
[7] The factual scenario presented by this case is strikingly similar to that presented to another panel of this Court in Collins v. City of Corpus Christi, No. 13‑03‑00428‑CV, 2006 Tex. App. LEXIS 2379, at *22 (Tex. App.BCorpus Christi Mar. 30, 2006, no pet. h.). The Collins opinion reviewed concurrent issues and arguments asserted by present or former members of the Fire Department of the City of Corpus Christi. Id. at *2. Our disposition today is in accordance with this Court=s holding in that case.
[8] The remaining thirty-four appellants did not make any attempt to join the prior suit.

Wednesday, May 17, 2006

Transparent and Electronic Documentation....


One example, and I will build from it;

Say right now, today we have attorneys who are good; but know one knows their name. They are NOT "in" with any machine or Cliqua, they possess a very little financial warchest but they possess an integrity of a Champion Defender and a record (pedigree) to prove it.

WATT if the track record of each attorney was electronically accessible?

After all, it is their "WORK PRODUCT" and OUR Public Information.

The support is very unspoken?

I wonder why?

The Transcripts could be transmitted to the web as the trials are over.

The 13th COA could recieve the Court Record immediately and the cost would only be incurred by the new IT upgrade.

Right now Nueces County is a leader in this technology. There are nano-technology collections of vast amounts of data only for an elite few to use for their own good. Ask around, ask the Judges about the Social Studies and the enormous amounts of personal information being exploited for many agendas other than HOMELAND SECURITY and the DRUG COURT.

So anyways, WATT if I am challenging an incumbent and I want to show the people why I am the best man for JOB. I can refer voters to my record and the opponent can refer the voters to his record as well.

What is the problem with each candidate referring the voters to browse their accomplishments?

This is a good thing!

Many other facets of this future courthouse to be in Nueces County.

Sunday, May 14, 2006

Indigio Develops Online Gaming Platform for 2006 Kentucky Derby The Indigio Group Inc. has developed an online gaming platform for Churchill Downs as an Internet promotion for the world famous Kentucky Derby. The online promotion, dubbed The $1 Million Kentucky Derby Super Challenge, will be available to web based participants in the United States, Canada, and the United Kingdom. read more...
InsideBayArea.com Redesign The Indigio Group Inc. working with MediaNews Group Interactive has completed a comprehensive redesign of The Alameda Newspaper Group’s San Francisco Bay area web site www.insidebayarea.com. read more...
Newspapers & Technology Profiles YourHub.com Newspapers & Technology article examines the impact of YourHub.com—the popular citizen journalism project developed last year by the Denver Newspaper Agency and Indigio. read more...

Indigio's Services:
Creative DesignWhat's it going to look like? How much copy? What about animation? The Indigio Creative Team helps clients navigate the tricky waters of visual design, content, and usability. Our Know, Understand, Act approach requires not just a good sense of design, it also requires a comprehensive understanding of your company's business objectives and insight as to how users act once inside your site. And when it comes to marrying visual communication with usability, Indigio delivers the highest level of industry expertise.
Channel AnalyticsThe Indigio Channel Analytics team provides clients with the information and data assessment essential to effective online channel management. From simple data capturing to the more complicated tasks of analyzing and interpreting—Indigio brings a wealth of experience and expertise to the table (and usually for a fraction of what larger channel analytic providers charge). If you're serious about achieving higher year-over-year performance, channel analytics is the road to perfection.
Web DevelopmentSuccess is in the details. And the Indigio Service Delivery Team makes sure none of them fall through the cracks. Our experience insures that each client can move forward with confidence--a confidence that comes from knowing, not guessing. Be it first time implementations or regular site analysis and modification, our team makes the operation run smoothly, timely, and efficiently.


Saturday, March 04, 2006

South Texas Chisme: A Look Back -BLOG 1/9/06 "THE OPPORTUNIST"

South Texas Chisme: A Look Back -BLOG 1/9/06 "THE OPPORTUNIST"