*1 less discretion in conducting voir dire than
do his or her brethren on criminal hold,
benches. I would as did the Garza
court, cases, that voir dire in civil as in cases,
criminal does not begin merely be-
cause the parties or their attorneys have jury
viewed questionnaires, begins but af-
ter the trial court has jury seated the
panel courtroom; in order in the has in-
structed, qualified, and jury sworn the
panel; and has plaintiff instructed the
begin Thus, the voir dire examination. I
would hold that the trial judge did not
abuse his discretion in granting the re-
quest for reasons, a shuffle. For these I
respectfully dissent to the majority’s thor-
ough and scholarly opinion. SMITH, Appellant,
Bruce SMITH, Appellee.
Kathleen
No. 14-96-01080-CV. Texas, of Appeals
Court (14th Dist.).
Houston
June *3 and re- We reverse
separate property. division. the issue of the mand on REVIEW OF STANDARD error, points first four In his the trial court erred complains The trial marital estate. dividing Houston, Casey, ap- for Shawn Russel dividing discretion in court has broad pellants. at divorce. See marital estate Murff Duncan, Ginny Langenkamp, Michael S. 696, 698 Murff, 615 S.W.2d Houston, Lydia Protopapas, appel- T. the trial court presume Upon appeal, *4 lees. and will reverse the used its discretion clearly the trial court only cause where Panel consists of Chief Justice A clear that discretion. See id. abused and Justices and MURPHY HUDSON only if the of discretion is shown abuse LEE.* Senior Justice manifestly un property division of id.; Han See Hanson v. just and unfair. MAJORITY OPINION son, 274, (Tex.App.-Hous 672 S.W.2d ON REHEARING th 1984, w.o.j.). writ dism’d Dist.] ton [14 community must remand the entire We LEE, (Assigned). Justice NORMAN we find new division when estate for a deny rehearing filed We motions for materially that affects the reversible error 3, 18, January January 2000 and 2000. We “just right” and division of the trial cоurt’s 2, 1999, opinion withdraw our of December Jacobs, Jacobs v. property. See the following. and substitute (Tex.1985). 731, 732 S.W.2d appeal property is an from the This points first four of error also Appellant’s in a divorce case. Bruce and division sufficiency legal and factual challenge April Kathleen Smith were married on we review a chal of the evidence. When during Two children were born sufficiency of the evi lenge legal to the marriage. separated were Smiths dence, only the evidence and we consider 8, 1994, July and soon thereafter Mrs. the trial tending support inferences petitioned Smith for divorce. After a disregard and all evidence findings court’s trial, bench the trial court entered the contrary. See Wei and inferences decree, naming Mrs. as the divorce Smith (Tex. Weirich, rich v. managing children’s sole conservator and 1992). sufficiency reviewing In the factual dividing the marital estate between evidence, consider and of the we must parties. findings The trial court filed and aside weigh all the evidence should set points law. In five fact and conclusions of only judgment if that is so judgment error, Mr. complains Smith overwhelming weight contrary to (1) awarding separate in court erred clearly wrong to be the evidence as (2) Smith, characterizing to Mrs. property Bain, v. 709 S.W.2d unjust. See Cain retire- some of the funds Mrs. Smith’s curiam). (Tex.1986) (per plan separate property, ment as her (3) findings in a bench have will review fact refusing appellant to allow the We sufficiency legal and factual present during the trial. trial for advisory counsel same standards used evidence find the trial court committed revers- jury’s reviewing supporting the evidence by mischaraeterizing ible error Jones, v. 917 S.W.2d community verdict. See Ortiz property as separate trial We review the of his by divesting Mr. Smith property * sitting by assign- ment. Justice Norman Lee Sеnior property as legal claiming novo certain conclusions of law de clearly identify Granger, must trace and City property questions. See Piazza separate. to be (Tex.App.-Austin property claimed
909 S.W.2d McElwee, writ). court will follow a trial McElwee 1995, writ (Tex.App.-Houston [1st Dist.] it is erro- court’s conclusion of law unless denied). establishing the Tracing involves law. id. neous as a matter of through origin property showing the time and means evidence FEDERAL CREDIT ATLANTIC pos spouse originally obtained which the UNION ACCOUNT See Hilliard property. session of the points In his first and second Hilliard, (Tex.App. error, argues writ). 1985, no -Dallas funds in the characterizing court erred from the record re- Federal Union The evidence cited parties’ Atlantic Credit (“AFCU”) account that the funds the AFCU bank account as veals awarded to Mr. originated damages from awarding to Mrs. Smith funds, mar- approximately in a lawsuit he filed before his about half of the Smith arose out of $50,000. evidence Mrs. The suit riage He contends Smith. him during made to factually misrepresentations insufficient to legally *5 Although a townhouse.3 finding purchase trial court’s that the the of support the filed before misrepresentation suit was remaining in the account were com the funds trial, and ulti- marriage, appeal, the munity property. agree. place took dur- recovery damages of mate rule, pos general property As a suit, marriage. As a result of the ing the during or on dis by spouse sessed either of gross amount Mr. Smith was awarded presumed to be marriage solution of is $256,248.91. dispute Mr. does not Smith must community property, spouse $81,940.41 recovery was gross this of convincing evidence to clear and present earned interest pre- postjudgment separate is property that such establish was, therefore, marriage and during the § 5.02.1 property. See Tex. Fam.Code See community property. Tex. Fam.Code the de convincing evidence is Clear 5.01(b).4 that the remain- § He contends in the mind proof produce that will gree award, $174,308.50, and gross der fact firm or convic of the trier of belief at the in the account remaining the funds allegations sought tion about approximately marriage, dissolution established. Tex. Fam.Code $Í00,000, estate. part were his 11.15(c)2; Ins. Transportation § Co. claim, Smith Moriel, 10, support To To 879 S.W.2d 31 rule. inception-of-title upon relies spouse presumption, overcome this n R.S., 1983, 26, C.S., 20, 1987, Leg., ch. May 68 Leg., 2. See Act of 2d 70th 1.See Act of June 159, 1554, 5, 298, 2, 50, § § Laws Gen. Laws 1987 Tex. Gen. 1983 Tex. ch. (now (Vernon (Vernon (now § 3.003 § at Tex. Fam.Code Ann. 101.007 at Tex. Fam.Code Ann. 1998)). 1996)). begun proceedings involved here were 1995, 20, date of the April the effective before the un complete discussion of For a more 3. Family law in effect on Code. The recodified case, Smith Smith’s see derlying facts of Mr. governs proceedings commenced the date the Inc., Herco, (Tex.App.-Cor S.W.2d 852 6, 1995, Leg., April 74th case. See Act of this 1995, denied). pus Christi 113, R.S., 20, 3(a), Laws § 1995 Tex. Gen. ch. Thus, changes though additional even 282. st R.S., 31, 1969, Leg., ch. May Act of 4. See during the Family Code were made to the 2707, 1, Laws § 1969 Tex. Gen. in the trial court pendency of this case (Vernon (now § 3.002 at Tex. Fam.Code Ann. court, changes apply do not before this those 1998)). Family are to the Code references here. All April before code in effect right or tion in a claim or that for whatever Property “separate” is characterized as enforceable, long so as that “community” inception the time of the is not reason of title to the Parnell v. limita- property. throughout is asserted claim Parnell, (Tex.App. 811 S.W.2d the title is referable not to period, tions th writ). In [14 Dist.] Houston but to the period the end of the limitations ception party of title occurs when a first of the claim of beginning of assertiоn right property by of claim to the virtue has at 229. right. Id. finally Strong of which title is vested. See said, has as another commentator Or Garrett, 265, 271, 148 Tex. of marital property The status of the (1949); Winkle, 471, 474 Winkle v. by the time and partners is determined (Tex.App.-Corpus Christi attending “acquisi- its circumstances denied). Here, pet. Mr. Smith’s helpful keep tion.” It is therefore right damages relating to claim by “acquired.” The mind what is meant purchase of the townhouse arose before his origin inception signifies term Therefore, marriage to Mrs. Smith. even later right, ripening rather than its though he did not recover for these dam or fruition. ages damages until after the marriage, (4th SpeeR’s Rights separate property. §
were his See Roach v. MaRItal Texas Roach, ed.). (Tex.App. 530-31 writ) (“It Amarillo is a familiar Here, damages gave rise to principle law that the or com misrepresenta- cause of action for munity character of deter oc- purchase tion townhouse acquisition mined not of the final Therefore, marriage. curred before the title.”). title ... origin but Mr. Smith’s to the claim arose before *6 argues Mrs. Smith that Mr. Smith’s was initiated be- marriage. The lawsuit right moneys to claim the damage relating marriage pursued fore the until his to the townhouse purchase did not arise $256,248.91 legal right rip- to the award until after him the court awarded ened. moneys,
these
which
during
occurred
the
This conclusion accords with Lewis
marriage. Until he was awarded the dam-
Lewis,
There
and the to claim the later Mrs. Smith also that $57,600 gross recovery rep As of Mr. Smith’s ripened. the Fifth Circuit noted Wrightsman, incep- compensation damages the title for to his resenting where has its rating judicial partition was a the to have those
credit loss suffered tled ex- estate, therefore, community this charged penses tenants common in as Mr. amount cannot characterized with rata ownership). accordance their separate argu- property. attorney’s The evidence shows fees Lewis, ment, however, contrary is approximately origi- consumed 37% of the Supreme that all where Court found Therefore, nal award. gross communi- the hus- compensation benefits were ty’s portion original net award— separate property band’s because his loss $161,313.17 $51,581.49 approximately —was fully community incurred before 37.05%]), ($81,940.41 -[$81,940.41 x — existed, and the contend even wife did not share, estate’s separate approximately marriage. that it worsened after the $109,731.68 ($161,313.17 51,581.49) [Num- — Lewis, at 630-31. Mrs. Smith rounded.] аre bers ap- argued argue never does not divorce, parties’ At the time of peal wors- rating that Mr. Smith’s credit however, the account had a balance of Rather, during marriage. ened she $100,000. approximately question for attempts distinguish by arguing Lewis point the trial court this was whether permanent “Lewis involved loss to spent commingled funds ac from the earning pres- while the capacity husband’s separate community count were funds or only involve temporary ent facts loss funds. Again, credit we fail rating.” Mr. Smith’s logic see the behind this distinction. separate Generally, when Regardless tempo- of whether the loss community are property permanent in Lew- rary here —or —as —as account, commingled in a single' bank we mar- damages is—when the occur before funds presume are recovery the ultimate these
riage,
first,
separate
out
funds are
drawn
before
separate
damages belongs
spouse’s
to that
withdrawn, and
there are sufficient
where
estate. Mr. Smith’s loss was incurred be-
separate
at all
cover the
funds
times to
therefore,
marriage;
compensation
fore
at the
property balance
the account
time
for that
is his
property.
loss
divorce,
presume
balance
rule
inception-of-title
both
Under
remains
See Welder v.
property.
award,
Lewis,
$256,248.91
gross
*7
420,
Welder,
(Tex.App.-
794
433
S.W.2d
$174,308.50
approximately
was Mr. Smith’s
writ);
1990,
Corpus Christi
Horlock v.
separate
property
approximately
and
Horlock,
52,
(Tex.Civ.App.-
533 S.W.2d
58
$81,940.41 belonged
community
es-
th
1975, writ dism’d
[14 Dist.]
Houston
gross
reduced
tate. This
amount was
w.o.j.);
Goodridge
Goodridge,
but
v.
cf.
attorney’s
of
fees and other
payment
the
571,
(Tex.Civ.App.-Dallas
591 S.W.2d
573
$94,935.74,
totaling
which left
expenses
(even
1979,
where
w.o.j.)
writ dism’d
ex
deposited
net award
into the AFCU
total
made exclu
penditures from account were
$161,313.17.
of
account
maintaining
sively for
and
hus
оperating
community
separate
es
character
of
separate
property,
band’s
in com
in account
of com
changed
tates shared this award as tenants
cash
because
Cockerham,
separate
527
mingling
community
mon. See Cockerham v.
funds).
such,
only
tracing
for
requirement
168
As
the
“The
S.W.2d
community-out-
to share
the
required
application
tenants in common were
and the
party
the
the
at
necessary
presumption
to maintain
first
expenses
the
Gonzalez,
community pre
the
tempting
See
v.
552
to overcome
property.
Gonzalez
evidence
the
(Tex.Civ.App.-Corpus
sumption produce
181
clear
S.W.2d
n.r.e.) (tenant
commingled ac
affecting
in
writ refd
transactions
Christi
Welder,
S.W.2d at
Welder v.
expends
who
common funds
count.”
common
enti-
property
of common
preservation
assume,
may
char
We
without
The trial court
deciding,
community
community-out-first presumption
sеparate property
is a re-
acterize
as
Smith, however,
Eggemeyer,
property.
Eggemeyer
buttable one.5 Mrs.
cites
See
(Tex.1977); Leighton
presumption.
no evidence to rebut the
See
S.W.2d
Tex.R.App.
(Tex.
38.2(a) (briefs
38.1(h),
Leighton,
P.
must
writ).
App.-Houston
[1st Dist.]
contain
the rec-
appropriate
citations to
ord.).
When a court mischaracterizes
pre-
The trial court was entitled to
community property,
as
the error
$60,000
property
approximately
spent
sume that the
requires
spouse
is di
reversal because
from the AFCU account came from com-
separate property.6
Eggem
vested of
$60,000
munity
deducting
funds. After
140;
eyer,
Leighton,
at
$51,581.49
S.W.2d
community
orig-
from the
funds
remaining
S.W.2d at 368. The funds
account,
inally
community
in the
funds
sepa
Mr.
the AFCU account was
Smith’s
depleted.
had been
cited,
property.
rate
the evidence
Under
discharged
at
Smith
his burden
therefore,
authority
the trial court had no
clearly
tracing
identifying the
it.
partition
We sustain
funds in the AFCU account he claimed to
points
first and second
error.
separate property.
See Welder v.
Welder,
148 appeal Mrs. ar At trial аnd on Smith accumulated retirement bene Mrs. Smith Employee Stock fits Puffer-Sweiven’s ownership plan stock account gues that the (“ESOP”). Ownership Plan Mrs. Smith’s into and com should be divided money pur components: had two ESOP munity portions based on the formula set profit-sharing and a pension plan chase 945, Berry Berry, out in v. 647 S.W.2d 947 at plan. presented Mrs. Smith evidence (Tex.1983), Taggart Taggart, 552 S.W.2d that, marriage, at time of her 422, (Tex.1977), Cearley v. Cear $32,457.7 At the value of her ESOP was 661, ley, 544 665-66 S.W.2d divorce, the had a value'of time of ESOP $103,537.8 as follows: This formula is plan = community at interest married under value number of months X. employed plan divorce of months under
number formula, community interest “de Mrs. cal- determine the Following this Smith plan plans,” married 44% of fined contribution such as culated that she had been Baw, time Puffer- here at issue. See Baw employed she was therefore, She, no (Tex.App.-Dallas concluded Sweiven. S.W.2d $103,537 Berkebile, writ); plan in the at the time Pelzig 44% оf S.W.2d of the divorce was no Christi (Tex.App.-Corpus plan separate writ); Hatteberg, and that 56% of the was her Hatteberg v. proposed further property. She (Tex.App.-Houston [1st Dist.] receive 46.66% 1994, Iglinsky, trial court that Smith writ); Iglinsky v. community’s and that she portion of the (Tex.App.-Tyler community’s por- writ). receive 53.34%9 as the plan A defined benefit —such have led to a final distri- tion. would Cearley— Taggart, and plans Berry, of the account to Mr. Smith bution of 20% monthly benefit be promises employees Mrs. and 80% of the account to Smith. The benefit is at retirement. ginning Smith, hand, evi- on the other offered years of service the number of based on of the account at dence of the balance of retire the time employee has at divorce, the balance at and evi- marriage, ment, age such as other factors along with a defined con- dence that the account was Brown, R. salary history. See Steven The trial court in its tribution account. the Divi Analysis Interdisciplinary An value to judgment gave 20% of ESOP’s Divorce and sion Pension Benefits Bay- Smith, in Actions, and 80% to Mrs. Mr. Smith Post-Judgment Partition di- proposed (1985). with Mrs. accordance Historically, L.Rev. loR vision. complicat have been plans defined benefit their because upon divorce apportion ed to appeal argues to ascer any time difficult given value at Berry/Tag- that the trial court used the developed Thus, Supreme Court tain. method to allocate the com gart/Cearley in making to aid courts special formula the stock munity separate portions Baw, this calculation. and that this ownership account plan application an incorrect method was of a defined contribu- proper value Berry argues law. Mr. Smith hand, is not difficult tion on the other plan, a “de /Cearley applies formula /Taggart *9 participating An employee inapplicable and is determine. plan fined benefits” actually sug- proposed chart division represents the value of the 9.Her 7. This amount September Neither of 1990. of the com- gested ESOP as receive that she 853.34% disputes the value of the party that this was was a mis- presume this munity interest. We marriage. plan at the time of print. represents the value of the 8. amount September ESOP as of
in a defined contribution has a
used
formula
proper
determining
for
savings
community’s portion
account similar to a
into
account
formula
—the
which
employee
make
a
employer
may
given
Smith advocates—and
have
Hatteberg,
contributions. See
disproportionate
community
S.W.2d
share of the
at 531. The value of this account can
In giving disproportion-
Mrs. Smith.
readily
any
ascertained at
time
ate
by simply
share to Mrs. Smith the court could
looking at the account. See id. at 531.
relied on
have
faсtors such as Mr. Smith’s
Thus, in order to
the communi- history
unemployment during
determine
the mar-
ty interest in a defined
plan,
riage
contribution
and Mrs.
lower educational
Smith’s
courts
plan
subtract the value of the
potential.
level and lower income
time of marriage from the value of the
above,
As discussed
we review fact find
plan at the
Pelzig,
time of divorce. See
ings in a
trial
legal
bench
and factual
151 trial, counsel, day On the second represented by Mrs. Smith’s defendant defen attorney objections mаy renewed her dant insist that able to he be call counsel, advisory citing Posner v. particular Dallas witness where counsel has de Unit, witness, County Child 784 S.W.2d clined to call that unless counsel’s Welfare 1990, (Tex.App.-Eastland denied), 585 deny actions defendant’s Sixth Amend proposition State, for the litigant that a se ment rights); Landers 550 S.W.2d 272, (no right hybrid has no to representation. Af- (Tex.Crim.App.1977) right 278 listening ter to arguments, judge hybrid representation arising from Article 10, constitution). 1, excluded Mr. advisory counsel dur- section of the state ing the second day testimony. Although state and federal find gen courts court’s comments suggest erally hybrid that it read Pos- that for crimi representation ner as forbidding hybrid representation. right, nal defendants is not a neither is representation prohibited. such See Unit matter, As an initial we note that th (10 975, Treff, ed States 924 F.2d 979 although part Mr. Smith relies in on the Cir.1991) (decision hybrid repre to allow counsel, right Sixth Amendment partic sentation and to limit defendant’s by'its Sixth Amеndment very ap words ipation in representation such within dis plies only to criminal defendants. See U.S. court); cretion of trial Jeary, Brasier v. (“In Const, amend. VI prose all criminal th(8 Cir.1958) (where 474, 256 F.2d 478 cutions, the accused enjoy right shall counsel, party represented by competent ... to have the Assistance of Counsel by his case should be conducted that coun defence.”); Rogers, United States v. apparent sel unless it becomes that inter (5th 1134, Cir.1976). 584 F.2d 1135 As a justice ests of require party’s partic active litigant, civil Mr. Smith has right no State, ipation); Busselman v. hybrid advisory counsel under 711, (Tex.App.-Houston 714 [1st Dist.] Sixth Amendment. rights Whatever (trial 1986, writ) may, no court in its dis may have must arise elsewhere. cretion, hybrid allow representation and may situations, in grant relief such A litigant civil ap entitled to parties by which case will be bound pear court and represented by coun rulings). sel of his or her own selection. See Farm Calame, 546, ers’ Gas Co. v. 262 S.W. 548 Apрellate ques courts review writ). (Tex.Civ.App.-Waco no Under appointment tions of the or choice of coun rules, litigant state option has the sel under an abuse of discretion standard. appearing person by or an attorney. Bechtel, See Andrews v. F.2d 7; See Tex.R. Civ. P. Kunstoplast Amer (1st Cir.1985) (trial court did not abuse ica, Inc. v. Formosa Plastics Corp., 937 by allowing plaintiffs attorney discretion S.W.2d The federal plaintiff withdraw where decided attor apply courts similar rules. See 28 him); ney representing Ayres should cease (West 1996); § U.S.C.A. O’Reilly v. Canales, (Tex.1990) Co., (2d New York Times 692 F.2d (court abused ordering party discretion Cir.1982). represented by attorney; to be an such dealing Most cases with question hy order rule providing “[a]ny violated representation brid fall within party may the criminal to a suit appear prosecute cases, sphere. In there, criminal state and rights feder or defend his in person either generally court.”); al courts have attorney found al an Thomas though Anderson, right defendant has a to self v. (Tex.App.- writ) (trial representation or representation by coun El Paso court abused sel, he or has hybrid repre she discretion in appointing counsel civil Daniels, sentation. See United States v. where litigant’s case record did not show th(5 Cir.1978) (where counsel). 572 F.2d inability to employ financial *12 defendant-attorney trial action attempted proceed likewise will review the to counsel, an trial trial advisory here under abuse of discretion stan to with request. dard. re court denied his On habeas view, the Fifth Circuit held the trial court’s trial, upon At Mrs. Smith relied Posner pro to counsel advisory refusal allow not proposition for that Mr. Smith was abrogate did not se criminal defendant In Pos- hybrid representation. entitled to right constitutional to assis defendant’s ner, a on party represented by counsel tance of cоunsel and the defendant had appeal attempted pro file a se brief. to right representation. to id. “hybrid” See appellate party court found that the court reviewing at 315-16. The noted hybrid representation not to was entitled although appointment standby coun presented nothing and that se brief preferred, mandatory. it not sel was court for review. See id. at 588. The is a See id. at We note Neal hybrid language forbidding repre- used no relying criminal case on the Sixth Amend In re Sondley, sentation. See also ment, to cases. apply which does not civil (Tex.App.-Amarillo Posner). pet.) (following expressed The trial "court here to Pos- attempts distinguish having advisory concern that counsel rep differentiating hybrid ner between disrupt litigant’s pro table would standby representation. resentation and ceedings. may The court have mis also hybrid representation, litigant In forbidding hybrid or stand read Pоsner as attorney actively trial participate in the above, we by representation. As mention States, Bayless process. v. United dealing with the feder have found no case th(9 Cir.1967) (court F.2d allowed standby hybrid or process rights al due to attorney both and defendant to participate representation in a civil case. Neverthe cross-examination). standby repre In less, case in which a have found no also sentation, her litigant conducts his or reviewing has overturned trial court an own "withthe and counsel of case advice request hy rejecting court’s decision for Sacco, attorney. See United States Indeed, standby representation. or brid (2d Cir.1977) (defendant F.2d con courts, a de many trial about concerned with appointed ducted his own defense ability effectively present his fendant’s to advisor). acting counsel case, appoint willing her seem to stand or not Mr. Smith сontends that Posner is matters. We by representation criminal here because Posner dealt with applicable however, cannot, the trial court say that in which type hybrid representation finding a due abused discretion without its at- attorney litigant the both the advisory coun standby to or process right actively ap- in the tempted participate to finding run counter Such a would sel. Here, pellate litigation process. trial courts granted the broad discretion hand, con- litigant attempts other Hoggett governing procedures. trial trial, quiet duct with the assis- his own Brown, (Tex.App. th Thus, tance of this situation attorney. an denied) (14 Dist.) 1997, pet. -Houston rather closely standby, more resembles (court’s together with power” “inherent hybrid, representation. than procedure and evidence applicable rules unfettered, broad, judges accord but hybrid that Posner deals with agree trials; respon in handling judge discretion standby repre than representation rather management Circuit, however, for conduct general has sible The Fifth sentation. trial); Sebek, Metzger v. standby representa the issue addressed th (5 Dist.] Texas, (Tex.App.-Houston [1st F.2d 312 tion Neal denied) general con Cir.1989). case, (judge responsible In that a former district has management a duct and attorney, attorney, a licensed faced pro intervene properly charge misconduct. When discretion of official promote wholly pro representa- to maintain ceedings preferable control and se We, therefore, tion, to fewer de- expedition). leading disruptions find no such nevertheless, We, standby hybrid overrule process lays. due point of error. representation. Smith’s fifth We note that although Smith CONCLUSION *13 requesting standby repre a type was of that the trial court com- Having found hybrid representa sentation rather than by error mitted reversible miseharacteriz- tion, standby rep the difference between com- ing separate property Mr. as hybrid and is representation resentation munity property by divesting bright not line area with gray but a reverse separate property, Smith of his we greater degrees attorney and lesser of in decision the trial court’s on the issue gray It is area volvement. because of this only and division the estate of give that must we trial court discretion in con- proceedings remand for further hybrid to determine whether to or allow formity opinion. this We affirm with standby representation to the deco control judgment.10 sever the remainder of the rum of the courtroom. argues
Mr. Smith further that Concurring opinion by delivered Justice even if the trial court had the discretion to HUDSON. standby day exclude counsel on the first HUDSON, Justice, J. HARVEY
trial, after the trial judge allowed counsel
concurring.
day,
first
the court
its dis
abused
by
cretion
excluding the counsel on the
trial,
Two
before
dis-
weeks
Bruce
day.
second
trial,
charged
attorney.
day
his
On
judge
Bruce
for a
asked
continuance. The
argument
This
unpersuasive.
grant
refused to
the continuance. Bruce
Mr. Smith has failed to
harm
demonstrate
se,
proceed
then
he would
announced
arising from the trial
change
court’s
had hired
advisory
but that he
counsel
position.
If anything, having advisory
ques-
during
sit with him
trial. When
day
counsel for a
was a windfall. Whatev
court,
by
tioned
counsel announced
strategy
er trial
pre
Smith had was
prepared
that
an active
he was
to take
sumably
place
day.
on the first
He
role in
case because he had
re-
been
likely
most
continued
preexisting
strat
a short
time
trial.
only
tained
before
egy. Although a trial court should as soon
rep-
reiterated that
again
Bruce
he would
possible
advise the litigant
whether
in all
phases
resent himself
of the trial
may proceed
or
hybrid
standby
she
with
or
rely
only
that he would
on counsel
for
State,
representation,
Scarbrough v.
cf.
private
occasional advice and
consultation.
we
(Tex.Crim.App.1989),
attorney
skeptical
was
Kathleen’s
abuse of
find no
discretion
sufficient
and the
procedure
judge
trial
warned
warrant reversal.
Bruce that she would not
him to
permit
however,
to emphasize,
delay
We wish
retard
the proceedings
pausing
or
hybrid
standby
representation
frequent
is not
conferences with his counsel.
admonition,
prohibited
per-
and that such
representation
judge
With this
view,
the trial
may,
point
arrangement.1
from
mitted the
Appellant
Herschberg Herschberg,
challenged
10.
has not
pet.).
(Tex.App.-Corpus
Christi
conservatorship
court’s determinations as to
support.
of the minor children and child
Ac
judge
remarked:
The trial
cordingly, may
affirm
and sever
issues
Well,
willing
I
try
it.
think
I'm
I don’t
divorce, conservatorship,
supрort,
you
doing
think I
can bar
from
it. I don’t
only
and remand
for a new
division.
having
attorney.
from
Ab-
can bar him
an
bama,
promised,
“repre-
As
counsel did not
287 U.S.
53 S.Ct.
(1932).
proceedings,
sent”
but act-
appellant
L.Ed.
tradi
common law
However,
advisory
in an
only
capacity.
ed
rejected
sharply
tion
reversed and
day
the commencement
the second
specifical
the American constitution which
trial,
attorney suggested
Kathleen’s
in a criminal
ly provides
the accused
the arrangement
court that
was a form of
rep
is permitted
case
to retain counsel to
hybrid representation, prohibited in civil
resent him before the court. See U.S.
Relying upon
cases.
Posner v. Dallas
Const,
amend VI.
Child, Welfare,
County
however,
By
own
language,
its
clear
denied),
(Tex.App.-Eastland
apply
Amendment does not
civil
Sixth
ruling,
trial court
reversed its earlier
'
cases.
Father & Sons Lumber and
mistrial,
briefly
declaring a
considerеd
N.L.R.B.,
Bldg.
Inc. v.
F.2d
Supplies,
finally prohibited advisory counsel from
*14
(6th Cir.1991);
1093,
v.
1097
United States
remaining
Advisory
in the courtroom.
Cir.1976).
(5th
1134,
F.2d
Rogers, 534
1135
objected
his
ar-
counsel
to
exclusion and
I,
The
is
of
section 10 of
same
true Article
gued
although
that
was represent-
Bruce
the Texas
See Harris
Constitution.
se,
ing
himself
due
under both
process
Com’n,
729,
Civil
731
Service
state
federal constitutions mandat-
th
1990,
Dist.]
no
(Tex.App.-Houston [14
permitted
ed that he should be
have as
to
writ). However,
these provi
at the time
competent representation
effective and
as
to
right
sions were
retain
adopted,
Thus,
possible under the circumstances.
Thus,
counsel in civil
was assumed.4
cases
question
is
of
issue
the fundamental
were not in
provisions
these constitutional
a
right
whether Bruce had
constitutional
infringe upon
accepted right
tended to
him
to retain counsel to assist
in his di-
case,
party
a
in a civil
of
to retain counsel
vorce proceеdings.
rather, to
the com
explicitly
but
overrule
law,
English
practice
Under
common
denying
of
counsel to
mon law tradition
litigation
in
has
utilizing attorneys
of
civil
however,
It
plain,
criminal defendants.
is
long
accepted
By
a stat
been
custom.
if
guarantees
that
constitution
federal
1495,
Henry
ute
in
Englishmen
of
VII
right
by
to be
in a civil
heard
counsel
to
only
right
were not
endowed with the
case,
in the
it will not be found
Sixth
attorneys
represent
retain
to
them in civil
Amendment.
cases, indigent parties
guaranteed
were
The
of the Fifth
process
due
clause
of a free
The
lawyer.2
oppo
services
person
that
shall
Amendment states
custom, however, prevailed
site
in criminal
life,
liberty,
property,
“be
of
deprived
felo
charged
cases. Until
those
with
process
without due
law.” See U.S.
ny
English
crimes under
common law were
added). The
Const,
(emphasis
amend V
right
repre
to
and be
denied the
retain
applicable
Ala
made
by
language
See Powell v.
same
sented
counsel.3
(1769).
solutely litigant
represent
a
can
himself and
Blackstone,
William
Commentaries
time,
permit-
even
absolutely
litigant
attorney
At one
the accused was not
a
hire an
can
Black-
litigant
ted to call witnesses in his defense.
absolutely
a
can hire two attor-
"Lastly,
an antient
thought
[sic]
stone records:
it was
neys. And
it
I have never
about
(derived
before,
commonly
practice,
received
Not
min-
I confess.
more than five
law,
day
to
from the civil
and which also
this
ago,
ago
utes
ten minutes
was the first time
France) that,
kingdom
obtains in the
possibility.
thought
I
But I don’t
about
any prisoner
not
ac-
counsel was
allowed to
automatically
him.
can
bar
know
I
crime,
capital
so
should
cused of a
neither
Jr.,
Johnson,
by
exculpate
testi-
Right
2.
to
to
himself
See Hon. Earl
be suffered
mony
any
in
International Per-
witnesses."
Counsel Civil Cases: An
Blackstone,
Loy.
(1985).
speсtive, 19
L.A.
L.Rev.
cases,
Litigation, 66
capital
Right
were not
4.The
to Counsel in Civil
3. Even in
defendants
1322, 1327(1966).
by
permitted
represented
to
counsel. See
Colum. L.Rev.
behalf,
only
but
to advise him dur-
states
the Fourteenth Amendment.
on his
Const,
However,
Thus,
pro-
XIV.
I
ing
U.S.
amend.
due
the course
trial.
do not
civil,
protections
cess
extend to
as well as
this distinction takes this scenario
believe
criminal, proceedings.
beyond
protections
the Fifth and
a
Amendments. Bruce had
Fourteenth
The most fundamental
due
concept of
attorney
hire an
right
constitutional
to
to
is the
to
process
right
hearing.
a
lay-
assist him this cause. While most
Elliott,
Hovey
U.S.
attorneys
“rep-
their
men choose
use
(1897);
Derbigny
L.Ed. 215
S.Ct.
court,
them
Bruce chose to
resent”
use
(Tex.
One,
Bank
th
attorney
him in
only
to “advise”
court.
writ).
App.-Houston [14 Dist.]
may
have
legal
been a foolish use of
be,
“right
Yet
to be heard would
resources,
Ibut believe Bruce’s decision to
many cases, avail if
little
it did
utilize counsel in this manner was constitu-
comprehend the
coun
right
be heard
tionally protected.
Powell,
sel.”
Here, Bruce did not attorney choose to be an to provide Bruce retained him through “heard” counsel. His lawyer making advice and counsel in strategic de employed was, believe, to “represent” appear him or I cisions. This his constitu cases, Johnson, pri “In exceptional рublic provinces. 5. some at 342-48. "When vate interests at stake are such ad that the legal it comes entitlement free coun- justice may ministration of best be served indigent litigants, sel for civil the United appointing lawyer represent indigent an minority among States in a distinct litigant.” Lynaugh, civil Coleman v. industrial democracies of world.” Id. at (Tex.App.-Houston S.W.2d Dist.] [1st 345. 1996, writ). See also Tex. Gov’t Ann. Code 1988). (Vernon § 24.016 right to 7.The retain counsel of one’s choice only yield must where the failure to maintain Lawyers indigent appointed represent are professional responsibili- standards of ethical France, parties England, in civil actions in very ty integrity threaten Sweden, would Denmark, Germany, Norway, Belgi- Norrell, Austria, um, Netherlands, judicial process. See Warrilow Spain, Portugal, It- Switzerland, Zealand, (Tex.App.-Corpus aly, Christi many New states, denied). and most of the Australian Canadian right, judgment trial erred and to remand cause to tional and the court court, him refusing to allow to utilize his retained advisory counsel. respectfully disagree I with
Accordingly, disposition Bruce’s final majority’s However, major- join I
point of eiTor. respects concur
ity opinion in all other reverse decision to