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KNOWLEDGE The Most Valuable Intangible
RMA Journal, The, June, 2001 by Anju P. Bhargava
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While employed by a large bank, the author oversaw a study of loan losses with the intent to prevent such problems in the future. The results are as useful to banks today as they were to the institution conducting the analysis in the early 1990s.
One of the many challenges facing bankers is also one of the most important: internalizing lessons learned from past losses. Although each economic cycle has its unique characteristics, given vary ing underlying forces at work, banking veterans can attest that the fundamental lessons remain unchanged. They also can attest that sharing this message with younger professionals can be a frustrating exercise.
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Lending, Opus 101. Whatever the circumstances surrounding it, the basic credit transaction remains the same. Fundamentally, a loan results from the interaction between the relationship manager and the customer. The instruments through which the relationship manager orchestrates the transaction are knowledge, the micro culture within the business unit, the quality of the portfolio, bank policies, and the corporate strategic vision. Just as the success of a concert depends on weather, audience, acoustics, and other factors, the RM's symphony can go out of tune from myriad external factors affecting the industry as well as repercussions from regional and global economic shifts. Loan losses result from a disconnect of one or more of these internal or external factors.
One Bank's Story
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In the 1990s, a $30 billion regional bank (the U.S. subsidiary of a major global bank) recognized the need to capture and integrate its collective learning into the organization's awareness system. The bank management acknowledged a simple truth: you have to know where you have been to know where you are going. It set to work changing the credit culture environment and putting a management decision audit tool in place.
In 1994, the bank's office of the chairman authorized an in-depth study--an autopsy, actually--of more than $1 billion in charge-offs from 1989 through 1993. The purpose was to ensure that history would not repeat itself. Quantifying the crisis provided a way for the staff to understand the past and accept the transformation of the bank's credit culture through key corrective initiatives. (According to the Office of the Comptroller of Currency, this was the only financial institution to undertake such an extensive and critical introspective analysis, though many others had a similar loss experience).
The study began by forming a small (1.5 person) task force in the risk management unit. This independent area had not been involved in decision-making during the crisis period. Separation from the line, including the workout areas, allowed for objectivity in research.
A multi-pronged approach to leverage learning integrated credit analysis, audit, and reengineering techniques with technology. As the bank's MIS was geared more towards data capture than analysis, a data base was developed to capture the qualitative information and take different snapshots of the quantified loan loss portfolio. Through an in-depth review of the credit files supplemented by interviews, each credit was dissected to record the facts and the understanding behind the numbers. The objective was to turn the data in the files along with the experience and the wisdom of the people into a usable tool.
Staff cooperation was at a high level as they were eager to learn from past errors. From the beginning, the staff was assured this was not a witch-hunt but a learning exercise. In fact, no names were recorded in the analysis. This made the people comfortable and willing to provide the necessary details.
The sample. The sampled credits represented a cross-section of industries where loan losses were experienced from 1989 through 1993. Greater emphasis was placed on understanding issues related to the large dollar charge-offs. The study discussed below is a composite of 11 primary industries affected. It should be noted that not all industries and divisions in the bank experienced loan losses. And the findings are no doubt representative of the experience at other regional U.S. banks.
Industry sources [1] indicate that more than 30% of the large banks (with assets over $2 billion) went through a crisis in the 1980s. The crisis was caused by changes that started in the 1960s--deregulation leading to disintermediation, banks' commitment to growth in terms of earnings per share and leveraged, industry-wide trendy pursuits (LDC loans, commercial real estate funding, and leveraged buyouts), and increased competition from nonbanks.
In examining the loan losses, a trend in thought patterns and business cycles was discovered. A study of loan losses is akin to dissecting the heart of a bank. Loan losses do not occur in isolation; rather, they reflect the health of all functional disciplines. The key findings include:
1. Credit analysis. In the sample, major factors in charge offs related to inadequate credit evaluation. The analysis categorized the causal factors as internal to the organization and external relating to the borrower and over all economic environment (see Appendix 1).
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Tuesday, May 29, 2007
A meritorious defense~Breakfast Club~
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IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0460
════════════
In the Interest of R.R. and S.J.S., Children
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
════════════════════════════════════════════════════
PER CURIAM
Ambrea Rodgers appeals from the termination of her parental rights to her children, R.R. and S.J.S. She asserts that the trial court abused its discretion in refusing to set aside a default judgment and grant her motion for new trial. We agree. We reverse the judgment of the court of appeals and remand for trial.
The Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services (CPS) took custody of Rodgers’s son, R.R., after Rodgers was jailed on August 31, 2004 for forgery, fraud, and drug possession. She was pregnant at the time. On September 2, 2004, CPS filed a Suit Affecting the Parent-Child Relationship seeking temporary managing conservatorship of R.R. On November 27, 2004, while Rodgers continued in custody on her criminal cases, she gave birth to S.J.S. CPS took possession of S.J.S. before the baby left the hospital, and on November 30, filed an amended petition seeking to terminate the parental rights in both children of Rodgers and the children’s fathers. The clerk’s record shows that the amended petition was mailed to Rodgers at her jail address. Although someone else signed for the mail, Rodgers testified that she received it. CPS filed its second amended petition on December 27, 2004. The Return for the second amended petition shows that it was personally served on Rodgers in jail. She did not file an answer or make an appearance in the termination suit.
On May 20, 2005, the trial court held a hearing and entered a default judgment terminating Rodgers’s parental rights as well as the parental rights of the fathers. After being notified that her parental rights had been terminated, Rodgers wrote to the trial court stating that she wanted to appeal the decision and requesting an attorney. The trial court then appointed an attorney to represent her. The attorney filed a motion for new trial and statement of points on appeal (the “motion”). Rodgers’s affidavit was attached to the motion. In her affidavit she averred, among other matters, that she had no prior experience with CPS and was not aware of how “the system” worked; she had received a lot of paperwork and did not realize the significance of the termination petition when she received it; the CPS caseworker told her she would get an attorney but did not tell her how that would happen or that Rodgers needed to do anything to get the attorney; Rodgers relied on the caseworker who told Rodgers that “she was there to help,” but who did not tell Rodgers that Rodgers needed to write the court to oppose the termination or explain to the court that she was indigent and wanted an attorney; Rodgers thought she would get an attorney automatically like she did in her criminal cases; if she had known that she needed to write the court to oppose the termination and to request an attorney, she would have done so; it was only when CPS advised her that a hearing had been held and her parental rights had been terminated that she realized she was wrong to rely on the CPS worker, who was the only person ever to contact her regarding the termination proceedings, and who she thought was her “go-between” who would tell the court whatever it needed to know and represent Rodgers’s best interests; Rodgers thought she was going to be given a chance to handle the matter upon her release from jail; she was to be released in August 2005 and had arranged for a place where she could stay; she regularly wrote letters to her children and the caseworker concerning the children; she believed it was not in the best interest of the children that her parental rights be terminated; she would be willing to go to trial immediately; and she was unable to reimburse CPS for its expenses in taking the default judgment because she was indigent. At the hearing on the motion, the caseworker and Rodgers testified. Following the hearing, the trial court denied the motion. The court of appeals affirmed. 189 S.W.3d 915.
We review a trial court’s denial of a motion for new trial for abuse of discretion. Director, State Employees Workers Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). A default judgment should be set aside and a new trial granted if (1) the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, (2) the defendant sets up a meritorious defense, and (3) the motion is filed at such time that granting a new trial would not result in delay or otherwise injure the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The defendant’s burden as to the first Craddock element has been satisfied when the factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff. See Fidelity and Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571, 576 (Tex. 2006). In determining if the defendant’s factual assertions are controverted, the court looks to all the evidence in the record. See Evans, 889 S.W.2d at 269.
CPS did not file affidavits or evidence in opposition to Rodgers’s motion, but the caseworker testified at the hearing on the motion. The caseworker testified that she met Rodgers twice: once at the hospital at the time CPS removed S.J.S., and once after that at the jail. According to the caseworker, she met Rodgers at the jail to talk about the progress of the case and the well-being of the children. The caseworker confirmed that she mailed Rodgers information about the progress of the case, hearing dates, a CPS service plan and information about how the children were doing. She received mail from Rodgers inquiring about the children. She did not inform Rodgers that the hearing set for May 20 was to terminate Rodgers’s parental rights because she did not know that the hearing was for that purpose. She was not present at the hearing because she was on vacation. Rodgers’s hearing testimony conformed to her affidavit. She asserted that she was never consciously indifferent about the case as evidenced by her regular letters to her children and the caseworker.
Failing to file an answer intentionally or due to conscious indifference means “the defendant knew it was sued but did not care.” Fidelity, 186 S.W.3d at 576. When determining whether the defendant’s failure to file an answer was intentional or due to conscious indifference, a court looks to the knowledge and acts of the defendant. Evans, 889 S.W.2d at 269. Not understanding a citation and then doing nothing following service does not constitute a mistake of law that is sufficient to meet the Craddock requirements. See Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992) (citing Butler v. Dal Tex Mach. & Tool Co. Inc., 627 S.W.2d 258, 260 (Tex. App.—Fort Worth 1982, no writ)). But, we have also held that some excuse, although not necessarily a good one, will suffice to show that a defendant’s failure to file an answer was not because the defendant did not care. Fidelity, 186 S.W.3d at 576 (citing Craddock, 133 S.W.2d at 125).
Rodgers’s affidavit and testimony were not to the effect that her failure to file an answer was only because she lacked an understanding of the citation. They were to the effect that based on her prior experiences with the court system and her contacts with CPS, she believed no action on her part was necessary for her interests to be protected and for an attorney to be appointed for her without further action on her part. Those experiences and Rodgers’s stated beliefs based on those experiences, together with the uncontroverted facts as to actions Rodgers took—staying in regular contact with the caseworker about the progress of the case, writing her children, inquiring regularly about the children—when taken as true, negate the element of conscious indifference to proceedings designed to terminate the parent-child relationship between Rodgers and her children. See Evans, 889 S.W.2d at 269.
In order to be entitled to a new trial, Rodgers also must have set up a meritorious defense and shown that her motion was filed at such time that the granting of a new trial would not result in delay or otherwise injure the plaintiff. See id. at 270; Craddock, 133 S.W.2d at 126. Because the court of appeals concluded that Rodgers failed to meet the first Craddock requirement, it did not consider whether she met the other Craddock factors. As this is an accelerated appeal, we will consider these legal issues rather than remand the case for the court of appeals to consider them. Tex. R. App. P. 53.4; see Tex. Fam. Code § 109.002.
A meritorious defense has been set up so as to meet the second Craddock prong if the facts alleged in the movant’s motion and supporting affidavits set forth facts which in law constitute a meritorious defense, regardless of whether those facts are controverted. Evans, 889 S.W.2d at 270. In regard to Rodgers’s claim of having set up a meritorious defense, we note that parental rights may be terminated only if termination is in the best interest of the children. Tex. Fam. Code § 161.001(2). The record reflects averments of fact by Rodgers that she regularly expressed interest in her children and their welfare, was off drugs, had arranged for a stable place where she could stay once she was released in August, had obtained information about how to get food stamps and had already researched which employers would hire felons. Evidence was also submitted that the children, in custody of CPS, were separated and in different foster homes. R.R. had been in an emergency shelter and a foster home since he was taken into custody and the children would be moved again if a foster home could be found that would take both of them.
There are several factors that should be taken into account when determining whether termination of parental rights is in the best interest of the child, including the stability of a proposed placement and the willingness of a child’s family to effect positive changes. Tex. Fam. Code § 263.307; Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Further, there is a strong presumption that the best interest of a child is served by keeping the child with a parent. Tex. Fam. Code § 153.131(b). Based on all these considerations as well as Rodgers’s factual assertions, we conclude that Rodgers set up a meritorious defense to CPS’s claim that termination would be in the best interest of the children.
Rodgers’s motion for new trial was timely filed and urged that granting a new trial would not result in delay or otherwise injure CPS or the children. See Craddock, 133 S.W.2d at 126. At the hearing on her motion she testified that she would be ready to go to trial immediately and would not ask for any continuances. It was uncontroverted that under the one-year deadline in the Family Code, at the time of the default judgment hearing CPS had more than two months to terminate Rodgers’s parental rights or face dismissal of the suit, or seek an additional 180-day extension of the deadline. See Tex. Fam. Code § 263.401(a), (b).
If a defendant alleges that granting a new trial will not injure the plaintiff, the burden then shifts to the plaintiff to present proof of injury. Evans, 889 S.W.2d at 270. The use of equitable principles guides the determination as to injury. Id. The CPS caseworker testified that she did not know if a delay in terminating Rodgers’s parental rights would hurt the children. Although Rodgers did not offer to reimburse CPS for its expenses in taking the default judgment, she offered uncontroverted evidence that she was indigent. CPS presented no evidence that it, or the children, would be injured by any delay inherent in granting Rodgers a new trial. Nor did CPS offer evidence of expenses it incurred or evidence that it would be harmed by Rodgers’s inability to reimburse any such expenses. In any event, we fail to see the equity under these circumstances of allowing Rodgers’s failure to offer to reimburse expenses to the State to preclude the granting of a new trial. We conclude that Rodgers met the third Craddock requirement. Because Rodgers satisfied all three Craddock requirements, we do not consider her claim that the Craddock standard should be modified for parental termination proceedings.
Without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion.
OPINION DELIVERED: December 1, 2006
IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0460
════════════
In the Interest of R.R. and S.J.S., Children
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
════════════════════════════════════════════════════
PER CURIAM
Ambrea Rodgers appeals from the termination of her parental rights to her children, R.R. and S.J.S. She asserts that the trial court abused its discretion in refusing to set aside a default judgment and grant her motion for new trial. We agree. We reverse the judgment of the court of appeals and remand for trial.
The Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services (CPS) took custody of Rodgers’s son, R.R., after Rodgers was jailed on August 31, 2004 for forgery, fraud, and drug possession. She was pregnant at the time. On September 2, 2004, CPS filed a Suit Affecting the Parent-Child Relationship seeking temporary managing conservatorship of R.R. On November 27, 2004, while Rodgers continued in custody on her criminal cases, she gave birth to S.J.S. CPS took possession of S.J.S. before the baby left the hospital, and on November 30, filed an amended petition seeking to terminate the parental rights in both children of Rodgers and the children’s fathers. The clerk’s record shows that the amended petition was mailed to Rodgers at her jail address. Although someone else signed for the mail, Rodgers testified that she received it. CPS filed its second amended petition on December 27, 2004. The Return for the second amended petition shows that it was personally served on Rodgers in jail. She did not file an answer or make an appearance in the termination suit.
On May 20, 2005, the trial court held a hearing and entered a default judgment terminating Rodgers’s parental rights as well as the parental rights of the fathers. After being notified that her parental rights had been terminated, Rodgers wrote to the trial court stating that she wanted to appeal the decision and requesting an attorney. The trial court then appointed an attorney to represent her. The attorney filed a motion for new trial and statement of points on appeal (the “motion”). Rodgers’s affidavit was attached to the motion. In her affidavit she averred, among other matters, that she had no prior experience with CPS and was not aware of how “the system” worked; she had received a lot of paperwork and did not realize the significance of the termination petition when she received it; the CPS caseworker told her she would get an attorney but did not tell her how that would happen or that Rodgers needed to do anything to get the attorney; Rodgers relied on the caseworker who told Rodgers that “she was there to help,” but who did not tell Rodgers that Rodgers needed to write the court to oppose the termination or explain to the court that she was indigent and wanted an attorney; Rodgers thought she would get an attorney automatically like she did in her criminal cases; if she had known that she needed to write the court to oppose the termination and to request an attorney, she would have done so; it was only when CPS advised her that a hearing had been held and her parental rights had been terminated that she realized she was wrong to rely on the CPS worker, who was the only person ever to contact her regarding the termination proceedings, and who she thought was her “go-between” who would tell the court whatever it needed to know and represent Rodgers’s best interests; Rodgers thought she was going to be given a chance to handle the matter upon her release from jail; she was to be released in August 2005 and had arranged for a place where she could stay; she regularly wrote letters to her children and the caseworker concerning the children; she believed it was not in the best interest of the children that her parental rights be terminated; she would be willing to go to trial immediately; and she was unable to reimburse CPS for its expenses in taking the default judgment because she was indigent. At the hearing on the motion, the caseworker and Rodgers testified. Following the hearing, the trial court denied the motion. The court of appeals affirmed. 189 S.W.3d 915.
We review a trial court’s denial of a motion for new trial for abuse of discretion. Director, State Employees Workers Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). A default judgment should be set aside and a new trial granted if (1) the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, (2) the defendant sets up a meritorious defense, and (3) the motion is filed at such time that granting a new trial would not result in delay or otherwise injure the plaintiff. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). The defendant’s burden as to the first Craddock element has been satisfied when the factual assertions, if true, negate intentional or consciously indifferent conduct by the defendant and the factual assertions are not controverted by the plaintiff. See Fidelity and Guar. Ins. Co. v. Drewery Const. Co., Inc., 186 S.W.3d 571, 576 (Tex. 2006). In determining if the defendant’s factual assertions are controverted, the court looks to all the evidence in the record. See Evans, 889 S.W.2d at 269.
CPS did not file affidavits or evidence in opposition to Rodgers’s motion, but the caseworker testified at the hearing on the motion. The caseworker testified that she met Rodgers twice: once at the hospital at the time CPS removed S.J.S., and once after that at the jail. According to the caseworker, she met Rodgers at the jail to talk about the progress of the case and the well-being of the children. The caseworker confirmed that she mailed Rodgers information about the progress of the case, hearing dates, a CPS service plan and information about how the children were doing. She received mail from Rodgers inquiring about the children. She did not inform Rodgers that the hearing set for May 20 was to terminate Rodgers’s parental rights because she did not know that the hearing was for that purpose. She was not present at the hearing because she was on vacation. Rodgers’s hearing testimony conformed to her affidavit. She asserted that she was never consciously indifferent about the case as evidenced by her regular letters to her children and the caseworker.
Failing to file an answer intentionally or due to conscious indifference means “the defendant knew it was sued but did not care.” Fidelity, 186 S.W.3d at 576. When determining whether the defendant’s failure to file an answer was intentional or due to conscious indifference, a court looks to the knowledge and acts of the defendant. Evans, 889 S.W.2d at 269. Not understanding a citation and then doing nothing following service does not constitute a mistake of law that is sufficient to meet the Craddock requirements. See Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992) (citing Butler v. Dal Tex Mach. & Tool Co. Inc., 627 S.W.2d 258, 260 (Tex. App.—Fort Worth 1982, no writ)). But, we have also held that some excuse, although not necessarily a good one, will suffice to show that a defendant’s failure to file an answer was not because the defendant did not care. Fidelity, 186 S.W.3d at 576 (citing Craddock, 133 S.W.2d at 125).
Rodgers’s affidavit and testimony were not to the effect that her failure to file an answer was only because she lacked an understanding of the citation. They were to the effect that based on her prior experiences with the court system and her contacts with CPS, she believed no action on her part was necessary for her interests to be protected and for an attorney to be appointed for her without further action on her part. Those experiences and Rodgers’s stated beliefs based on those experiences, together with the uncontroverted facts as to actions Rodgers took—staying in regular contact with the caseworker about the progress of the case, writing her children, inquiring regularly about the children—when taken as true, negate the element of conscious indifference to proceedings designed to terminate the parent-child relationship between Rodgers and her children. See Evans, 889 S.W.2d at 269.
In order to be entitled to a new trial, Rodgers also must have set up a meritorious defense and shown that her motion was filed at such time that the granting of a new trial would not result in delay or otherwise injure the plaintiff. See id. at 270; Craddock, 133 S.W.2d at 126. Because the court of appeals concluded that Rodgers failed to meet the first Craddock requirement, it did not consider whether she met the other Craddock factors. As this is an accelerated appeal, we will consider these legal issues rather than remand the case for the court of appeals to consider them. Tex. R. App. P. 53.4; see Tex. Fam. Code § 109.002.
A meritorious defense has been set up so as to meet the second Craddock prong if the facts alleged in the movant’s motion and supporting affidavits set forth facts which in law constitute a meritorious defense, regardless of whether those facts are controverted. Evans, 889 S.W.2d at 270. In regard to Rodgers’s claim of having set up a meritorious defense, we note that parental rights may be terminated only if termination is in the best interest of the children. Tex. Fam. Code § 161.001(2). The record reflects averments of fact by Rodgers that she regularly expressed interest in her children and their welfare, was off drugs, had arranged for a stable place where she could stay once she was released in August, had obtained information about how to get food stamps and had already researched which employers would hire felons. Evidence was also submitted that the children, in custody of CPS, were separated and in different foster homes. R.R. had been in an emergency shelter and a foster home since he was taken into custody and the children would be moved again if a foster home could be found that would take both of them.
There are several factors that should be taken into account when determining whether termination of parental rights is in the best interest of the child, including the stability of a proposed placement and the willingness of a child’s family to effect positive changes. Tex. Fam. Code § 263.307; Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Further, there is a strong presumption that the best interest of a child is served by keeping the child with a parent. Tex. Fam. Code § 153.131(b). Based on all these considerations as well as Rodgers’s factual assertions, we conclude that Rodgers set up a meritorious defense to CPS’s claim that termination would be in the best interest of the children.
Rodgers’s motion for new trial was timely filed and urged that granting a new trial would not result in delay or otherwise injure CPS or the children. See Craddock, 133 S.W.2d at 126. At the hearing on her motion she testified that she would be ready to go to trial immediately and would not ask for any continuances. It was uncontroverted that under the one-year deadline in the Family Code, at the time of the default judgment hearing CPS had more than two months to terminate Rodgers’s parental rights or face dismissal of the suit, or seek an additional 180-day extension of the deadline. See Tex. Fam. Code § 263.401(a), (b).
If a defendant alleges that granting a new trial will not injure the plaintiff, the burden then shifts to the plaintiff to present proof of injury. Evans, 889 S.W.2d at 270. The use of equitable principles guides the determination as to injury. Id. The CPS caseworker testified that she did not know if a delay in terminating Rodgers’s parental rights would hurt the children. Although Rodgers did not offer to reimburse CPS for its expenses in taking the default judgment, she offered uncontroverted evidence that she was indigent. CPS presented no evidence that it, or the children, would be injured by any delay inherent in granting Rodgers a new trial. Nor did CPS offer evidence of expenses it incurred or evidence that it would be harmed by Rodgers’s inability to reimburse any such expenses. In any event, we fail to see the equity under these circumstances of allowing Rodgers’s failure to offer to reimburse expenses to the State to preclude the granting of a new trial. We conclude that Rodgers met the third Craddock requirement. Because Rodgers satisfied all three Craddock requirements, we do not consider her claim that the Craddock standard should be modified for parental termination proceedings.
Without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion.
OPINION DELIVERED: December 1, 2006
Tuesday, March 27, 2007
Police Chief Bryan Smith has put Capt. Mark Schauer in special operations i
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TroubleShooter Mike Baird: 03.12.07
Youth form an army against graffiti
March 12, 2007
picture
Area youth are leading the charge against graffiti while police await city leaders' approval of their new plan; and one man wants his January electric bill before his vacation.
Adelina Maese, 74, is embarrassed for her family to visit this week because of graffiti on a privacy fence near her Cresthill Drive home.
Beautify Corpus Christi has carried the graffiti wipeout ball for a while, but funds no longer are dedicated to the cause, said executive director Daiquiri Richard.
"We're definitely at a crossroads," said Richard. "We have had business owners stand and watch us paint over graffiti on their walls, then complain they don't like the color. We need people to take more responsibility for their own neighborhoods and properties."
Hats off this week to the South Park Civic Minded Knights, a group of about 90 middle school students who have done just that. Richard presented them with certificates of appreciation Friday for their work cleaning up graffiti throughout Mike Zepeda Park and on walls, fences and neighbors' homes in the South Park neighborhood.
Also, the Grace United Methodist Church youth group adopted the mission about a year ago and, without a lot of fanfare, has cleaned hundreds of locations. Last week the Portland United Methodist Church youth group also joined Corpus Christi police in the graffiti operation.
Police Chief Bryan Smith has put Capt. Mark Schauer in special operations in charge of developing a graffiti assault initiative. Schauer's comprehensive plan, submitted to city leaders for approval two weeks ago, integrates the help of directed patrol officers to identify graffiti sites within the neighborhoods they serve and assigns detectives to problematic locations.
"It involves a lot of participation from City Hall," Schauer said.
The department's direct patrol is leading an Operation Whitewash during spring break, and Schauer passed Maese's graffiti location to Lt. Heidi Frese, in charge of directed patrol, to be included in that operation.
"Our problem is funds," said Frese.
Anyone with more than half a gallon of paint they would like to donate can drop it off for the graffiti operation at the Police Athletic League Center, 1802 Buford St.
To report graffiti, call 886-2765.
# Walter Heffner of Tahiti Drive is miffed because he hasn't received an electric bill from CPL Retail since early January, and customer service representatives told him they didn't know when he'd get his bill.
"I'll be on vacation for 30 days, and don't want to come home to my service shut off," said Heffner, 73.
The Troubleshooter reached Priscilla Tinsley, spokewoman for the utility provider, who said the company regularly audits accounts for accuracy and found some mistakes.
"During January, it was found that a portion of some bills were improperly charged so we stopped sending them to make adjustments," said Tinsley. "All of them will be sent out this week. We will work with any customers who need payment arrangements because of our delay."
For help with a problem contact
Mike Baird at 886-3774
or bairdm@ caller.com
Saturday, March 24, 2007
1-1 AN ACT~A BILL TO BE ENTITLED
3-8 (b) An eligible child who attends a private school in
3-9 compliance with this subchapter is entitled to 100 percent of the
3-10 child's voucher, unless the tuition charged by the school is less
3-11 than the amount of the voucher. In that event, the school district
3-12 the child would otherwise attend is entitled to the amount of the
3-13 voucher remaining after payment of tuition.
3-14 (c) An eligible child who attends a private school using a
3-15 voucher is included in determining the average daily attendance
3-16 under Section 42.005 of the school district in which the student
3-17 would otherwise attend school.
3-18 (d) A child's voucher is payable from the school district to
3-19 the private school on behalf of the child. A child's voucher is the
3-20 entitlement of the child, under the supervision of the child's
3-21 parent, is not an entitlement of any school, and is paid to a school
3-22 solely as a means of administrative convenience.
3-9 compliance with this subchapter is entitled to 100 percent of the
3-10 child's voucher, unless the tuition charged by the school is less
3-11 than the amount of the voucher. In that event, the school district
3-12 the child would otherwise attend is entitled to the amount of the
3-13 voucher remaining after payment of tuition.
3-14 (c) An eligible child who attends a private school using a
3-15 voucher is included in determining the average daily attendance
3-16 under Section 42.005 of the school district in which the student
3-17 would otherwise attend school.
3-18 (d) A child's voucher is payable from the school district to
3-19 the private school on behalf of the child. A child's voucher is the
3-20 entitlement of the child, under the supervision of the child's
3-21 parent, is not an entitlement of any school, and is paid to a school
3-22 solely as a means of administrative convenience.
Sunday, February 04, 2007
Gary Ganschow...only "serves court summons to "select students", and sometimes parents.
Monday, August 23, 1999
Working to help keep kids in school
State laws and truancy center give hope to those helping kids
By Novelda Sommers
Caller-Times
Truant officer Gary Ganschow rumbles into driveways on his three-wheel custom motorcycle, court summons in hand.
Ganschow takes students who skip school, and sometimes their parents, to court.
"He's like their worst nightmare over in the King district," said Mariah Boone, director of the Truancy Reduction Impact Program, which serves juveniles who violate the city's daytime curfew.
Ganschow, Boone and local juvenile authorities say they hope to see a decrease in truancy with the opening of a new 24-hour curfew center next month and with new state truancy laws.
Two new laws aim to combat truancy among 16- to 18-year-old students. One law gives school districts the option of expelling 18-year-olds if they accrue more than five unexcused absences. And starting Sept. 1, judges may order 16-year-olds accused of skipping school to take the high school equivalency exam.
"I think what the Legislature is saying is they're serious about kids going to school," said Art Delgado, CCISD director of administrative and student services. "If they are not going to school, following the rules, and they are being disruptive, they shouldn't be there."
Sanctions against students who miss school aren't meant to punish, but to get students back in school and keep them there, he said. A special committee this fall is expected to work on ways to improve attendance.
Many parents just don't know about truancy laws, school officials and judges say.
Justice of the Peace Larry Cox said parents often seem surprised when they appear in his court and learn that they could be fined thousands of dollars or jailed because they didn't make their children attend school.
Cox said he saw about 600 truancy cases in his courtroom last year, compared with about 50 cases when he first took office five years ago. He attributes the increase to more diligent enforcement by police, constables' deputies and school truancy officers.
Penalties can range from fines up to $500 for each unexcused absence, to court orders for parents to attend school with their children for a day or two, Cox said.
State law says it's a crime if any child age six to 18 misses three days or parts of days within four weeks without an excuse or if they have 10 unexcused absences within six months.
Straight talk
Ganschow, a Vietnam veteran with a pierced ear and a ponytail, checks school attendance reports at 12 Corpus Christi Independent School District schools and serves court summons to select students, and sometimes parents.
Last week, he spoke to a classroom of King students whose teacher said he had noticed too many absences in the first week of school.
"You may say, 'What can you do to me, because I'm a kid,' '' he said.
Lots of things. A judge can assess a 6 p.m. curfew. Or the judge could suspend the offender's driver's license.
On the second offense, Ganschow told them, "you're going to jail."
"You're going to be put in the police car and taken to the juvenile center where you will be held for violating a court order," he tells them. Those who are 17 or older can be taken to the county jail.
Hope for center
Whom he takes to court depends on parents' and students' willingness to change their behavior, Ganschow later said.
"We don't file on all of them. It's a tool that we can use," he said.
Last year, CCISD filed 938 complaints against students and parents. CCISD employs five truant officers whose coverage areas center around the high schools and their feeder schools.
Boone said she hopes a planned 24-hour curfew center, funded with the Crime Control District tax, will drive down truancy numbers down.
Set to open on Sept. 13, the center will offer counseling to students and their parents. Staff at the center will call offenders' schools to learn their grades and absentee rates, she said. The counselors will follow up with the families in the weeks after the first session.
Parents, she said, can help keep their kids in school by knowing school staff and calling to check if they suspect there is a problem.
Counseling often needed
Often, truancy is a symptom of a larger problem in the offender's family, said Penny Grochow, assistant chief probation officer for the Nueces County Juvenile Department.
Counselors who work with truants and runaways at the center often learn of sexual abuse, drug use and neglect in truants' homes, she said.
The department has seen the number of truancies level off since 1993, when truancies peaked at 613 cases. Last year, the department handled 354 cases, and in 1997, it saw 316. Juvenile crime overall hit a five-year low last year, with 4,311 offenses.
Parents can call the department between 8 a.m. and 8 p.m. for free counseling, Grochow said. Most who come in complain that they have difficulty getting their children to go to school.
"If they've called us at 8 a.m. and they can't get the kid out of bed for school, we tell them to get the kid in the car and come talk to us," she said.
Kids difficult to handle
In a recent counseling session, a defiant girl with close-cropped hair began to let down her guard with Priscilla Boyd-Apah, a juvenile probation caseworker.
She doesn't want to go to school because other kids make fun of her, she told Boyd-Apah.
"You need to straighten out your act today," Boyd-Apah said. "How are you going to support yourself if you're not educated?"
The session was arranged by the girl's mother, who was desperate for help and called the department.
"She's like the bad apple out of all of them," the mother said, telling the counselor that the 12-year-old has three younger siblings.
Boyd-Apah said she frequently counsels children whose parents say they can no longer control them. This girl will be taken on a tour of the juvenile boot camp to see where she could end up if she keeps offending, Boyd-Apah said.
But during the session, it became apparent, Boyd-Apah said, that the mother needs help, too.
The mother said she doesn't work, and lives on about $200 in monthly government aid. The girl's father, she said, is in prison.
A school counselor who called during the session said the children come to school dirty, Boyd-Apah said.
"They need to come clean and dressed nice for school or else kids will pick at them," Boyd-Apah told the mother, before making a follow-up appointment for the next week.
Justice of the Peace Henry Santana said that when he assesses punishment in truancy cases, he orders the families to get counseling. Some parents just don't know how to communicate with their children without fighting.
"Punishment is not the answer," he said. "They need a lot of counseling, a lot of help to put them on track again."
Working to help keep kids in school
State laws and truancy center give hope to those helping kids
By Novelda Sommers
Caller-Times
Truant officer Gary Ganschow rumbles into driveways on his three-wheel custom motorcycle, court summons in hand.
Ganschow takes students who skip school, and sometimes their parents, to court.
"He's like their worst nightmare over in the King district," said Mariah Boone, director of the Truancy Reduction Impact Program, which serves juveniles who violate the city's daytime curfew.
Ganschow, Boone and local juvenile authorities say they hope to see a decrease in truancy with the opening of a new 24-hour curfew center next month and with new state truancy laws.
Two new laws aim to combat truancy among 16- to 18-year-old students. One law gives school districts the option of expelling 18-year-olds if they accrue more than five unexcused absences. And starting Sept. 1, judges may order 16-year-olds accused of skipping school to take the high school equivalency exam.
"I think what the Legislature is saying is they're serious about kids going to school," said Art Delgado, CCISD director of administrative and student services. "If they are not going to school, following the rules, and they are being disruptive, they shouldn't be there."
Sanctions against students who miss school aren't meant to punish, but to get students back in school and keep them there, he said. A special committee this fall is expected to work on ways to improve attendance.
Many parents just don't know about truancy laws, school officials and judges say.
Justice of the Peace Larry Cox said parents often seem surprised when they appear in his court and learn that they could be fined thousands of dollars or jailed because they didn't make their children attend school.
Cox said he saw about 600 truancy cases in his courtroom last year, compared with about 50 cases when he first took office five years ago. He attributes the increase to more diligent enforcement by police, constables' deputies and school truancy officers.
Penalties can range from fines up to $500 for each unexcused absence, to court orders for parents to attend school with their children for a day or two, Cox said.
State law says it's a crime if any child age six to 18 misses three days or parts of days within four weeks without an excuse or if they have 10 unexcused absences within six months.
Straight talk
Ganschow, a Vietnam veteran with a pierced ear and a ponytail, checks school attendance reports at 12 Corpus Christi Independent School District schools and serves court summons to select students, and sometimes parents.
Last week, he spoke to a classroom of King students whose teacher said he had noticed too many absences in the first week of school.
"You may say, 'What can you do to me, because I'm a kid,' '' he said.
Lots of things. A judge can assess a 6 p.m. curfew. Or the judge could suspend the offender's driver's license.
On the second offense, Ganschow told them, "you're going to jail."
"You're going to be put in the police car and taken to the juvenile center where you will be held for violating a court order," he tells them. Those who are 17 or older can be taken to the county jail.
Hope for center
Whom he takes to court depends on parents' and students' willingness to change their behavior, Ganschow later said.
"We don't file on all of them. It's a tool that we can use," he said.
Last year, CCISD filed 938 complaints against students and parents. CCISD employs five truant officers whose coverage areas center around the high schools and their feeder schools.
Boone said she hopes a planned 24-hour curfew center, funded with the Crime Control District tax, will drive down truancy numbers down.
Set to open on Sept. 13, the center will offer counseling to students and their parents. Staff at the center will call offenders' schools to learn their grades and absentee rates, she said. The counselors will follow up with the families in the weeks after the first session.
Parents, she said, can help keep their kids in school by knowing school staff and calling to check if they suspect there is a problem.
Counseling often needed
Often, truancy is a symptom of a larger problem in the offender's family, said Penny Grochow, assistant chief probation officer for the Nueces County Juvenile Department.
Counselors who work with truants and runaways at the center often learn of sexual abuse, drug use and neglect in truants' homes, she said.
The department has seen the number of truancies level off since 1993, when truancies peaked at 613 cases. Last year, the department handled 354 cases, and in 1997, it saw 316. Juvenile crime overall hit a five-year low last year, with 4,311 offenses.
Parents can call the department between 8 a.m. and 8 p.m. for free counseling, Grochow said. Most who come in complain that they have difficulty getting their children to go to school.
"If they've called us at 8 a.m. and they can't get the kid out of bed for school, we tell them to get the kid in the car and come talk to us," she said.
Kids difficult to handle
In a recent counseling session, a defiant girl with close-cropped hair began to let down her guard with Priscilla Boyd-Apah, a juvenile probation caseworker.
She doesn't want to go to school because other kids make fun of her, she told Boyd-Apah.
"You need to straighten out your act today," Boyd-Apah said. "How are you going to support yourself if you're not educated?"
The session was arranged by the girl's mother, who was desperate for help and called the department.
"She's like the bad apple out of all of them," the mother said, telling the counselor that the 12-year-old has three younger siblings.
Boyd-Apah said she frequently counsels children whose parents say they can no longer control them. This girl will be taken on a tour of the juvenile boot camp to see where she could end up if she keeps offending, Boyd-Apah said.
But during the session, it became apparent, Boyd-Apah said, that the mother needs help, too.
The mother said she doesn't work, and lives on about $200 in monthly government aid. The girl's father, she said, is in prison.
A school counselor who called during the session said the children come to school dirty, Boyd-Apah said.
"They need to come clean and dressed nice for school or else kids will pick at them," Boyd-Apah told the mother, before making a follow-up appointment for the next week.
Justice of the Peace Henry Santana said that when he assesses punishment in truancy cases, he orders the families to get counseling. Some parents just don't know how to communicate with their children without fighting.
"Punishment is not the answer," he said. "They need a lot of counseling, a lot of help to put them on track again."
Rule 176.8 Enforcement of Subpoena.....Kleberg County Mary Cano, Alfred Isassi, John T. Hubert ....ever heard of Brady v Maryland
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TEXAS RULES OF CIVIL PROCEDURE
Disclaimer: This information is intended for use by attorneys. Due to the rapidly changing nature of the law, there will be times when the material on this site will not be current. It is provided for general information purposes only and is not intended as legal advice. It should not be considered comprehensive or exhaustive and is not a substitute for advice from your attorney. We make no express or implied warranty as to the material's accuracy, reliability, completeness, timeliness or appropriateness for a particular purpose, including applicability to your jurisdiction or circumstances. We assume no liability whatsoever for any direct, indirect or consequential damages resulting from your reliance on this material; you do so at your own risk. If you are not an attorney, seek the advice of an attorney. Comments, corrections or suggestions should be directed to research@serve-em.com.
RULE 6. SUITS COMMENCED ON SUNDAY
No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress proceedings, provided that citation by publication published on Sunday shall be valid.
(Amended Oct. 3, 1972, eff. Feb. 1, 1973.)
RULE 15. WRITS AND PROCESS
The style of all writs and process shall be "The State of Texas;" and unless otherwise specially provided by law or these rules every such writ and process shall be directed to any sheriff or any constable within the State of Texas, shall be made returnable on the Monday next after expiration of twenty days from the date of service thereof, and shall be dated and attested by the clerk with the seal of the court impressed thereon; and the date of issuance shall be noted thereon.
RULE 16. SHALL ENDORSE ALL PROCESS
Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially .
(Amended July 15, 1987, eff. Jan. 1, 1988.)
RULE 17. OFFICER TO EXECUTE PROCESS
Except where otherwise expressly provided by law or these rules, the officer receiving any process to be executed shall not be entitled in any case to demand his fee for executing the same in advance of such execution, but his fee shall be taxed and collected as other costs in the case.July 15, 1987, eff. Jan. 1, 1988.)
RULE 103. WHO MAY SERVE
Citation and other notices may be served anywhere by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age. No person who is a party to or interested in the outcome of a suit shall serve any process. Service by registered or certified mail and citation by publication shall, if requested, be made by the clerk of the court in which the case is pending. The order authorizing a person to serve process may be made without mitten motion and no fee shall be imposed for issuance of such order.
(Amended June 10, 1980, eff. Jan. 1, 1981; July 15, 1987, eff. Jan. 1, 1988.)
RULE 105. DUTY OF OFFICER OR PERSON RECEIVING
The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.
(Amended July 11, 1977, eff. Jan. 1, 1978; July 15, 1987, eff. Jan. 1, 1988.)
RULE 106. METHOD OF SERVICE
(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant 's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(I) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true cope of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
(Amended Aug. 18, 1947, eff. Dec. 31, 1947; July 22, 1975, eff. Jan. 1, 1976; July 11, 1977, eff. Jan. 1, 1978, June 10, 1980, eff. Jan. 1, 1981; July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990.)
RULE 107. RETURN OF SERVICE
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same ; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified. When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain.
Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court.
No default judgment shall be granted in any cause until the citation, or process under Rules 108 or 108a, with proof of service as provided by this rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed under Rule 106, shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.
(Amended July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990.)
RULE 108a. SERVICE OF PROCESS IN FOREIGN COUNTRIES
(1) Manner. Service of process may be effected upon a party in a foreign count if service of the citation and petition is made: (a) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (b) as directed by the foreign authority in response to a letter rogatory or a letter of request; or (c) in the manner provided by Rule 106; or (d) pursuant to the terms and provisions of any applicable treaty or convention; or (e) by diplomatic or consular officials when authorized by the United States Department of State; or (f) by any other means directed by the court that is not prohibited by the law of the country where service is to be made. The method for service of process in a foreign country must be reasonably calculated, under all of the circumstances, to give actual notice of the proceedings to the defendant in time to answer and defend. A defendant served with process under this rule shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with citation Within this state to the full extent that he may be required to appear and answer under the Constitution of the United States or under any applicable convention or treaty in an action either in rem or in personam.
(2) Return. Proof of service may be made as prescribed by the law of the foreign country, by order of the court, by Rule 107, or by a method provided in any applicable treaty or convention.
(Added Dec. 5, 1983, eff. April 1, 1984.)
RULE 176. SUBPOENAS
176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:
(a) state the style of the suit and its cause number;
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.
176.2 Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following:
(a) attend and give testimony at a deposition, hearing, or trial;
(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.
Rule 176.3 Limitations.
(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).
(b) Use for Discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.
Rule 176.4 Who May Issue. A subpoena may be issued by:
(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;
(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or
(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.
Rule 176.5 Service.
(a) Manner of Service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.
(b) Proof of Service. Proof of service must be made by filing either:
(1) the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
(2) a statement by the person who made the service stating the date, time, and manner of service, and the name of the person served.
Rule 176.6 Response.
(a) Compliance Required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition hearing, or trial from day to day until discharged by the court or by the party summoning the witness.
(b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.
(c) Production of Documents or Tangible Things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.
(d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena - before the time specified for compliance - written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.
(e) Protective Orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b) - before the time specified for compliance - either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.
(f) Trial Subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).
Rule 176.7 Protection of Person from Undue Burden and Expense. A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
Rule 176.8 Enforcement of Subpoena.
(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
(b) Proof of Payment of Fees Required for Fine or Attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
(Added Aug. 5, 1998, and amended Nov. 9, 1998, eff. Jan. 1, 1999.)
Texas Statutes Art. 2.11 BUS. CORP. ACT. Service of Process on Corporation
A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.
B. Whenever the corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. Service on the Secretary of State of any process, notice, or demand shall be made by delivering to and leaving with him, or with the Assistant Secretary of State, or with any clerk having charge of the corporation department of his office, duplicate copies of such process, notice, or demand. In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of the copies thereof to be forwarded by registered mail, addressed to the corporation at its registered office. Any service so had on the Secretary of State shall be returnable in not less than thirty (30) days.
C. The Secretary of State shall keep a record of all processes, notices and demands served upon him under this Article, and shall record therein the time of such service and his action with reference thereto.
D. Services of process, notice, or demand required or permitted by law to be served by a political subdivision of this state or by a person, including another political subdivision or an attorney, acting on behalf of a political subdivision in connection with the collection of a delinquent ad valorem tax may be served on a corporation whose corporate privileges are forfeited under Section 171.251 TAX, Tax Code, or is involuntarily dissolved under Article 7.01 of this Act by delivering the process, notice, or demand to any officer or director of the corporation, as listed in the most recent records of the secretary of state. If the officers or directors of the corporation are unknown or cannot be found, service on the corporation may be made in the same manner as service is made on unknown shareholders under law. Notwithstanding any disability or reinstatement of a corporation, service of process under this section is sufficient for a judgment against the corporation or a judgment in rem against any property to which the corporation holds title.
Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Sec. D added by Acts 1999, 76th Leg., ch. 1481, § 40, eff. Sept. 1, 1999.
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TEXAS RULES OF CIVIL PROCEDURE
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RULE 6. SUITS COMMENCED ON SUNDAY
No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress proceedings, provided that citation by publication published on Sunday shall be valid.
(Amended Oct. 3, 1972, eff. Feb. 1, 1973.)
RULE 15. WRITS AND PROCESS
The style of all writs and process shall be "The State of Texas;" and unless otherwise specially provided by law or these rules every such writ and process shall be directed to any sheriff or any constable within the State of Texas, shall be made returnable on the Monday next after expiration of twenty days from the date of service thereof, and shall be dated and attested by the clerk with the seal of the court impressed thereon; and the date of issuance shall be noted thereon.
RULE 16. SHALL ENDORSE ALL PROCESS
Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially .
(Amended July 15, 1987, eff. Jan. 1, 1988.)
RULE 17. OFFICER TO EXECUTE PROCESS
Except where otherwise expressly provided by law or these rules, the officer receiving any process to be executed shall not be entitled in any case to demand his fee for executing the same in advance of such execution, but his fee shall be taxed and collected as other costs in the case.July 15, 1987, eff. Jan. 1, 1988.)
RULE 103. WHO MAY SERVE
Citation and other notices may be served anywhere by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age. No person who is a party to or interested in the outcome of a suit shall serve any process. Service by registered or certified mail and citation by publication shall, if requested, be made by the clerk of the court in which the case is pending. The order authorizing a person to serve process may be made without mitten motion and no fee shall be imposed for issuance of such order.
(Amended June 10, 1980, eff. Jan. 1, 1981; July 15, 1987, eff. Jan. 1, 1988.)
RULE 105. DUTY OF OFFICER OR PERSON RECEIVING
The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.
(Amended July 11, 1977, eff. Jan. 1, 1978; July 15, 1987, eff. Jan. 1, 1988.)
RULE 106. METHOD OF SERVICE
(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant 's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(I) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by leaving a true cope of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.
(Amended Aug. 18, 1947, eff. Dec. 31, 1947; July 22, 1975, eff. Jan. 1, 1976; July 11, 1977, eff. Jan. 1, 1978, June 10, 1980, eff. Jan. 1, 1981; July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990.)
RULE 107. RETURN OF SERVICE
The return of the officer or authorized person executing the citation shall be endorsed on or attached to the same ; it shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person. The return of citation by an authorized person shall be verified. When the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain.
Where citation is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court.
No default judgment shall be granted in any cause until the citation, or process under Rules 108 or 108a, with proof of service as provided by this rule or by Rules 108 or 108a, or as ordered by the court in the event citation is executed under Rule 106, shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.
(Amended July 11, 1977, eff. Jan. 1, 1978; June 10, 1980, eff. Jan. 1, 1981; July 15, 1987, eff. Jan. 1, 1988; April 24, 1990, eff. Sept. 1, 1990.)
RULE 108a. SERVICE OF PROCESS IN FOREIGN COUNTRIES
(1) Manner. Service of process may be effected upon a party in a foreign count if service of the citation and petition is made: (a) in the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or (b) as directed by the foreign authority in response to a letter rogatory or a letter of request; or (c) in the manner provided by Rule 106; or (d) pursuant to the terms and provisions of any applicable treaty or convention; or (e) by diplomatic or consular officials when authorized by the United States Department of State; or (f) by any other means directed by the court that is not prohibited by the law of the country where service is to be made. The method for service of process in a foreign country must be reasonably calculated, under all of the circumstances, to give actual notice of the proceedings to the defendant in time to answer and defend. A defendant served with process under this rule shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with citation Within this state to the full extent that he may be required to appear and answer under the Constitution of the United States or under any applicable convention or treaty in an action either in rem or in personam.
(2) Return. Proof of service may be made as prescribed by the law of the foreign country, by order of the court, by Rule 107, or by a method provided in any applicable treaty or convention.
(Added Dec. 5, 1983, eff. April 1, 1984.)
RULE 176. SUBPOENAS
176.1 Form. Every subpoena must be issued in the name of "The State of Texas" and must:
(a) state the style of the suit and its cause number;
(b) state the court in which the suit is pending;
(c) state the date on which the subpoena is issued;
(d) identify the person to whom the subpoena is directed;
(e) state the time, place, and nature of the action required by the person to whom the subpoena is directed, as provided in Rule 176.2;
(f) identify the party at whose instance the subpoena is issued, and the party's attorney of record, if any;
(g) state the text of Rule 176.8(a); and
(h) be signed by the person issuing the subpoena.
176.2 Required Actions. A subpoena must command the person to whom it is directed to do either or both of the following:
(a) attend and give testimony at a deposition, hearing, or trial;
(b) produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person.
Rule 176.3 Limitations.
(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2).
(b) Use for Discovery. A subpoena may not be used for discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.
Rule 176.4 Who May Issue. A subpoena may be issued by:
(a) the clerk of the appropriate district, county, or justice court, who must provide the party requesting the subpoena with an original and a copy for each witness to be completed by the party;
(b) an attorney authorized to practice in the State of Texas, as an officer of the court; or
(c) an officer authorized to take depositions in this State, who must issue the subpoena immediately on a request accompanied by a notice to take a deposition under Rules 199 or 200, or a notice under Rule 205.3, and who may also serve the notice with the subpoena.
Rule 176.5 Service.
(a) Manner of Service. A subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness and tendering to that person any fees required by law. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney of record.
(b) Proof of Service. Proof of service must be made by filing either:
(1) the witness's signed written memorandum attached to the subpoena showing that the witness accepted the subpoena; or
(2) a statement by the person who made the service stating the date, time, and manner of service, and the name of the person served.
Rule 176.6 Response.
(a) Compliance Required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition hearing, or trial from day to day until discharged by the court or by the party summoning the witness.
(b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization.
(c) Production of Documents or Tangible Things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separate one. A person must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand. A person may withhold material or information claimed to be privileged but must comply with Rule 193.3. A nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Rule 193.7.
(d) Objections. A person commanded to produce and permit inspection or copying of designated documents and things may serve on the party requesting issuance of the subpoena - before the time specified for compliance - written objections to producing any or all of the designated materials. A person need not comply with the part of a subpoena to which objection is made as provided in this paragraph unless ordered to do so by the court. The party requesting the subpoena may move for such an order at any time after an objection is made.
(e) Protective Orders. A person commanded to appear at a deposition, hearing, or trial, or to produce and permit inspection and copying of designated documents and things, and any other person affected by the subpoena, may move for a protective order under Rule 192.6(b) - before the time specified for compliance - either in the court in which the action is pending or in a district court in the county where the subpoena was served. The person must serve the motion on all parties in accordance with Rule 21a. A person need not comply with the part of a subpoena from which protection is sought under this paragraph unless ordered to do so by the court. The party requesting the subpoena may seek such an order at any time after the motion for protection is filed.
(f) Trial Subpoenas. A person commanded to attend and give testimony, or to produce documents or things, at a hearing or trial, may object or move for protective order before the court at the time and place specified for compliance, rather than under paragraphs (d) and (e).
Rule 176.7 Protection of Person from Undue Burden and Expense. A party causing a subpoena to issue must take reasonable steps to avoid imposing undue burden or expense on the person served. In ruling on objections or motions for protection, the court must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The court may impose reasonable conditions on compliance with a subpoena, including compensating the witness for undue hardship.
Rule 176.8 Enforcement of Subpoena.
(a) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both.
(b) Proof of Payment of Fees Required for Fine or Attachment. A fine may not be imposed, nor a person served with a subpoena attached, for failure to comply with a subpoena without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered.
(Added Aug. 5, 1998, and amended Nov. 9, 1998, eff. Jan. 1, 1999.)
Texas Statutes Art. 2.11 BUS. CORP. ACT. Service of Process on Corporation
A. The president and all vice presidents of the corporation and the registered agent of the corporation shall be agents of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon the corporation may be served.
B. Whenever the corporation shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served. Service on the Secretary of State of any process, notice, or demand shall be made by delivering to and leaving with him, or with the Assistant Secretary of State, or with any clerk having charge of the corporation department of his office, duplicate copies of such process, notice, or demand. In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of the copies thereof to be forwarded by registered mail, addressed to the corporation at its registered office. Any service so had on the Secretary of State shall be returnable in not less than thirty (30) days.
C. The Secretary of State shall keep a record of all processes, notices and demands served upon him under this Article, and shall record therein the time of such service and his action with reference thereto.
D. Services of process, notice, or demand required or permitted by law to be served by a political subdivision of this state or by a person, including another political subdivision or an attorney, acting on behalf of a political subdivision in connection with the collection of a delinquent ad valorem tax may be served on a corporation whose corporate privileges are forfeited under Section 171.251 TAX, Tax Code, or is involuntarily dissolved under Article 7.01 of this Act by delivering the process, notice, or demand to any officer or director of the corporation, as listed in the most recent records of the secretary of state. If the officers or directors of the corporation are unknown or cannot be found, service on the corporation may be made in the same manner as service is made on unknown shareholders under law. Notwithstanding any disability or reinstatement of a corporation, service of process under this section is sufficient for a judgment against the corporation or a judgment in rem against any property to which the corporation holds title.
Acts 1955, 54th Leg., p. 239, ch. 64, eff. Sept. 6, 1955. Sec. D added by Acts 1999, 76th Leg., ch. 1481, § 40, eff. Sept. 1, 1999.
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