Section 8 Do not delay teaching this tidbit of intel to your juveniles.........................................

2008-07-30T02:02:00.000-07:00

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NUMBER 13-07-00277-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CORPUS CHRISTI

HOUSING AUTHORITY , Appellant,

MARIA LARA, Appellee.

On appeal from the County Court at Law No. 5

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Garza and Benavides

Opinion by Chief Justice Valdez

Appellant, Corpus Christi Housing Authority, appeals from an order dismissing its forcible detainer action against appellee, Maria Lara, a housing authority tenant.⁽¹⁾ See Tex. Prop. Code Ann. § 24.002 (Vernon 2000). The housing authority terminated Lara's residential lease because she allegedly violated lease provisions, provided Lara with formal notice of the lease termination, and subsequently obtained an eviction judgment from a justice court. See id. § 24.004 (Vernon 2000). Lara appealed to a county court at law and moved to dismiss the housing authority's action because its notice was defective under controlling federal rules. The trial court granted Lara's dismissal motion. By two issues, the housing authority contends that the trial court erred by dismissing its suit because: (1) its notice was adequate; and (2) even if the notice was inadequate, Lara had actual notice of the lease termination. We reverse and remand.

I. Background⁽²⁾

Lara leased an apartment from the housing authority on November 27, 1995, and she has lived in a housing authority apartment ever since. The housing authority terminated Lara's lease on October 10, 2006 because Lara, her minor son, and her daughter allegedly engaged in criminal activity, which was a violation of the lease provisions and federal law.

A. Alleged Criminal Activity

The events underlying the lease termination occurred on the evenings of September 19 and October 2, 2006. On September 19, Officer J. Cantu received a call regarding a speeding motorcycle on the street in front of Lara's apartment. According to Officer Cantu's report, he witnessed a motorcycle traveling at a high rate of speed on a street where children were playing. Upon stopping the motorcycle, Officer Cantu questioned the driver, who identified himself as P.L., Lara's minor son. P.L. was not licensed to operate a motorcycle, and the motorcycle was not registered. Officer Cantu then made contact with Lara and her daughter, who "were in aggressive postures and were vulgar and vocal" to him according to his report. Officer Cantu's report noted that P.L. was "cited," but it did not specify what, if any infractions were included in the citation. Officer Cantu did not arrest anyone during his investigation.

On October 2, Officer Casares was dispatched to investigate a reported disturbance at Lara's neighbor's apartment. Upon arriving, Officer Casares met with Rosario Navarro, Lara's neighbor. Navarro told Officer Casares that Lara threatened her because she would not provide false testimony about the incident that occurred on September 19. Navarro recounted to Officer Casares that one of Lara's male relatives approached her in an aggressive manner and pushed her away with his stomach. Navarro also advised Officer Casares that she had heard that Lara was making death threats against her. Navarro expressed to Officer Casares that she feared for her safety because of previous incidents and threats.

B. Lease Termination and Eviction Proceedings

The housing authority terminated Lara's lease when it received the reports from Officers Cantu and Casares. On October 10, 2006, the housing authority provided Lara with a "72-[H]our Notice to Terminate the Lease and Notice to Vacate," which claimed that Lara had violated lease provisions by engaging in prohibited conduct. The notice stated that Lara's lease would be terminated on October 13, 2006. It contained copies of the reports of Officers Cantu and Casares. The notice alleged that the following lease provisions were violated:

To act and cause other person(s) who are on premises with Resident's consent to act in a manner which will not disturb residents' or neighbors' peaceful enjoyment of their accommodations and will be conducive to maintaining premises and the development in a decent, safe and sanitary condition.

To refrain from illegal or other activity that impairs the physical or social environment of the development.

To act in an orderly manner in dealings with [m]anagement and/or other residents and not to harass or retaliate against management and/or other residents in any way so long as management and/or other residents reasonably and peacefully exercise any right granted under the lease.

To refrain from committing any act of physical violence to persons or property on or off premises.

The notice warned Lara that she was not entitled to a grievance hearing, but it stated that:

[T]his eviction procedure provides the opportunity for a hearing in [a] court that contains the basic elements of due process as defined by HUD [the United States Department of Housing and Urban Development] regulations. If you do not vacate on or before the expiration of 72 Hours from the date of this notice, October 13, 2006, legal action regarding eviction will be instituted for possession thereof.

(emphasis in original). Lara refused to vacate the premises, and the housing authority filed suit for forcible detainer in a justice court. See Tex. Prop. Code Ann. §§ 24.002, 24.004. The justice court entered a judgment of eviction in favor of the housing authority. Lara appealed to a county court at law.

The housing authority's petition in county court repeated the facts contained in the police reports. The housing authority alleged that Lara violated lease provisions because she: (1) did not abide by the admission and continued occupancy policy; (2) disturbed other residents' peaceful enjoyment of the premises; and (3) engaged in criminal activity that impaired the physical or social environment of the development. The housing authority prayed for possession of Lara's apartment, actual and exemplary damages, court costs, and reasonable attorney's fees.

Lara answered the housing authority's petition with a general denial. She also filed special exceptions, a plea in abatement, and a motion to dismiss. In her dismissal motion, Lara posited that federal regulations mandated that the housing authority's lease termination notice "[s]pecify the judicial eviction procedure to be used," see 24 C.F.R. § 966.4(l)(3)(v)(B) (2008), and "[s]tate whether the eviction is for a criminal activity as described in § 966.51(a)(2)(i)(A) or for a drug-related criminal activity . . . ," see 24 C.F.R. § 966.4(l)(3)(v)(C) (West 2008). Lara argued that the notice she received did not contain either of the federally mandated statements. Lara asserted that the notice did not effectively terminate her right of possession because of its defects and that the eviction proceeding that the housing authority instituted in the justice court violated state law because it was instituted before an effective lease termination. See Tex. Prop. Code Ann. § 24.005(a)(1) (Vernon 2000) (providing that the landlord must give a tenant who defaults at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit).

The housing authority responded to Lara's dismissal motion by arguing that the notice sufficiently informed Lara of the alleged criminal activity and the judicial process. The housing authority further argued that even if the notice were defective, it did not deprive the trial court of subject-matter jurisdiction because the statute's purpose was informational rather than jurisdictional. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000); Helena Chem. Co. v. Wilkins, 47 S.W.3d 351, 358 (Tex. 2001).

On February 22, 2007, the county court granted Lara's dismissal motion and issued findings of fact and conclusions of law. In its legal conclusions, the trial court found that the federal regulations at issue are subject to review for strict compliance and that failure to satisfy the notice requirements deprives the trial court of subject-matter jurisdiction. The housing authority filed a motion for new trial, which the trial court denied. This appeal ensued.

II. Discussion

By two issues, the housing authority complains that the trial court erred in dismissing its forcible detainer action. First, the housing authority claims that its notice complied with section 966.4(l)(3)(v)(B) of title 24 of the Code of Federal Regulations. See 24 C.F.R. § 966.4(l)(3)(v)(B). Second, the housing authority contends that even if the notice failed to comply with the applicable federal regulations, the trial court retained subject-matter jurisdiction because Lara had actual knowledge of the eviction proceeding; therefore, she was not harmed by any deficiency in the notice.

A. Standard of Review

In this case, the trial court concluded that it lacked subject-matter jurisdiction over the housing authority's eviction action. We review a trial court's ruling on subject-matter jurisdiction de novo. Tex. Natural Res. Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). We are also called upon to review how federal regulations affect this state's lease termination and eviction procedures. We construe the text of an administrative rule under the same principles we construe a statute. See, e.g., Phillips Petroleum Co. v. Texas Comm'n on Envtl. Quality, 121 S.W.3d 502, 507 (Tex. App.-Austin 2003, no pet.) (citing Tex. Gen. Indem. Co. v. Tex. Workers' Comp. Comm'n, 36 S.W.3d 635, 641 (Tex. App.-Austin 2000, no pet.)) (providing that state administrative rules and statutes are reviewed for intent). We will, therefore, ascertain and give effect to the rule drafter's intent for the provisions we are construing. See Tex. Gov't Code Ann. § 312.005 (Vernon 2005) (providing how a court should determine legislative intent).

When a trial court issues findings of fact and conclusions of law, as the trial court did in this case, we may review the findings of fact for legal and factual sufficiency and review the conclusions of law de novo. Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).

B. Notice

By its first issue, the housing authority asserts that the trial court erred in concluding that the notice was insufficient. Lara moved for dismissal on the ground that the termination notice did not specify the judicial procedure to be used or specify the kind of criminal activity that Lara was alleged to have engaged in. The relevant federal regulation provides that when the public housing authority:

is not required to afford the tenant the opportunity for a hearing under the PHA administrative grievance procedure for a grievance concerning the lease termination (see § 966.51(a)(2)), and the PHA has decided to exclude such grievance from the PHA grievance procedure, the notice of lease termination under paragraph (l)(3)(i) of this section shall: specify the judicial eviction procedure to be used by the PHA for eviction of the tenant, and state that HUD has determined that this eviction procedure provides the opportunity for a hearing in court that contains the basic elements of due process as defined in HUD regulations.

24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). The housing authority contends that Texas has only one judicial eviction procedure, and, therefore, its generic notice was sufficient. We disagree.

Under our rules of statutory construction, "shall" is generally construed to be mandatory, but may be directory when this interpretation is most consistent with the Legislature's intent. See Tex. Gov't Code Ann. § 311.016 (Vernon 1998); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996). To determine whether the Legislature intended a provision to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (Tex. 1956). Even if a statutory requirement is mandatory, this does not mean that compliance is necessarily jurisdictional. Sinclair, 984 S.W.2d at 961; Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983). When a statute is silent about the consequences of noncompliance, we look to the statute's purpose to determine the proper consequences. Sinclair, 984 S.W.2d at 961; Schepps, 652 S.W.2d at 937-38; Chisholm, 287 S.W.2d at 945.

Title 24 of the Code of Federal Regulations regulates public housing authorities. The applicable section states that a notice of lease termination "shall specify the judicial eviction procedure to be used." See 24 C.F.R. § 966.4(l)(3)(v)(B) (emphasis added). We conclude that the plain meaning, nature, and object of this phrase is to mandate that a housing authority notify a tenant of the judicial eviction procedure to be used. Part of the purpose of Title 24 is to afford adequate due process to tenants. For example, tenants are entitled to a grievance hearing before judicial eviction unless certain exceptions apply. See 24 C.F.R. § 966.51(a)(1) (2008).⁽³⁾ Even when an exception applies and a grievance hearing is not required, the regulations mandate that the judicial procedure used to evict a tenant must possess the basic elements of due process. 24 C.F.R. § 966.4(1)(3)(v)(B). In this case, reading "shall" as directory instead of mandatory would dilute the procedural safeguards promulgated by the Department of Housing and Urban Development.

The notice in the instant case did not specify which court would hear the eviction action. In fact, it was so deficient that it did not even attempt to parrot the text of the regulation. See, e.g., Edgecomb v. Hous. Auth. of Vernon, 824 F.Supp. 312, 314 (D. Conn. 1993) (providing that a notice which merely parrots the broad language of the regulations is insufficient). Therefore, the housing authority's first issue is overruled.

C. Subject-Matter Jurisdiction

By its second issue, the housing authority argues that the trial court erred in dismissing its detainer action because Lara was not harmed by any alleged insufficiency in the notice. The housing authority argues that we should follow the First Court of Appeals, which has held that notice defects in housing authority cases are subject to a harm analysis because protections in the federal regulations exist "to insure that the tenant is adequately informed of the nature of the evidence against him so that he can effectively rebut that evidence" rather than to create jurisdiction. See Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 392 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Escalera v. N.Y. City Hous. Auth., 425 F.2d 853, 862 (2d Cir. 1970)).

Lara counters by arguing that the notice requirements vest her with a fundamental due process right that is jurisdictional. She contends that this "jurisdictional right" is not subject to a harm analysis. In essence, Lara asks us to create a different rule than the one crafted by in Nealy, but her only rationale is that she does not agree with the rule that is already on the books. We are persuaded by neither the housing authority's nor Lara's arguments. Instead, we look to our own cases for guidance.

In Hinojosa, this Court was confronted with a similar notice argument. See Hinojosa v. Hous. Auth. of Corpus Christi, 896 S.W.2d 833 (Tex. App.-Corpus Christi 1995, writ dism'd w.o.j.). The housing authority in Hinojosa issued a defective notice, which the tenant asserted in county court warranted a dismissal. Id. at 385. The housing authority, however, moved to abate its detainer action so that it could cure the defects. Id. The county court abated the proceeding, and the case was eventually reinstated and tried to a jury on the merits. Id. On appeal, the tenant argued that the trial court erred by not dismissing the action. Id. at 836. We found that the "[i]n many areas of the law, abatement is appropriate when prerequisites are missing," and we held that the trial court did not err in abating rather than dismissing the case. Id. at 836-37.

Implicit in the Hinojosa case is the notion that the notice requirements contained in the applicable federal regulations are not jurisdictional. See id.; see also Torres v. Corpus Christi Hous. Auth., No. 13-04-591-CV, 2006 Tex. App. LEXIS 6872, *4-5 (Tex. App.-Corpus Christi 2006, no pet.) (mem. op.) (concluding that alleged deficiencies in a housing authority's notice to terminate lease must be raised before the trial court or the complaint is waived). The trial court in this case, therefore, erred in dismissing the housing authority's detainer action. Instead, the trial court should have abated the housing authority's action so that it could provide Lara with the federally mandated notice. See Hinojosa, 896 S.W.2d at 836. Therefore, the housing authority's second issue is sustained in part.

III. Conclusion

The trial court's dismissal order is reversed, and the case remanded back to the trial court with instructions to abate the underlying action until sufficient notice is provided.

________________________

ROGELIO VALDEZ

Chief Justice

Opinion delivered and filed

this the 17th day of July, 2008.

1. The Corpus Christi Housing Authority is a federally subsidized agency, and it is regulated by title 42, Chapter 8 of the United States Code and title 24 of the Code of Federal Regulations. See 42 U.S.C. §§ 1401-1440; 24 C.F.R. §§ 0-4199.

2. The trial court granted Lara's dismissal motion on the pleadings. It, therefore, did not hear live testimony, and consequently, this case is submitted without a reporter's record. See Tex. R. App. P. 34.1 (providing that the appellate record consists of the clerk's record, and if necessary to the appeal, the reporter's record). We take note of the allegations of criminal activity from police reports that the housing authority subjoined to the termination notice.

3. Those exceptions include: (A) any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA; (B) any violent or drug-related criminal activity on or off such premises; or (c) any criminal activity that resulted in felony conviction of a household member. 24 C.F.R. § 966.51(a)(2)(i)(A)-(B) (2008).

the issues of whether a tenant may appeal from an adverse judgment in a forcible detainer action without posting a supersedeas bond, and whether a for

2008-06-10T02:45:00.000-07:00

I guess the "CCCC" was not going to get their cut.......Politics as usual, no poor people allowed in the "rich" schools.....

2008-03-29T04:04:00.000-07:00

Low-cost housing complex shelved

By Beth Wilson (Contact)
Saturday, March 29, 2008

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CORPUS CHRISTI — Plans to build a low-cost housing complex on the city's Southside have been scrapped because the project would cost more than the Corpus Christi Housing Authority expected.

Housing authority officials were preparing for a $15.5 million low-cost housing complex with 64 town houses and 136 apartments at 7442 Wooldridge Road off Rodd Field Road.

Neighbors packed public meetings about the housing development last year, voicing concerns about decreasing property values, overcrowding streets and schools and safety issues if it were built. Housing authority officials tried to calm those concerns by saying similar projects experienced no change in property value or crime and explaining that residents are screened and simply pay a lower-than-average rate.

Richard Franco, the housing authority's chief executive officer, said the neighborhood's opposition was not a factor in the decision made in the fall not to build.

"If it had been economically feasible, we'd be under construction right now," he said.

Bids to build the housing were about $2 million higher than budgeted, mostly because of rising construction costs, Franco said.

"We just couldn't make it work," he said.

Franco said he's focused now on redeveloping the housing authority's existing buildings, including the La Armada complex on Ayers Street, which was converted in the 1950s from military barracks built in the 1940s.

Amber Bright, and her husband, Josh, helped organize neighbors against the Wooldridge Road project, e-mailing regular updates and attending public meetings last year. They were worried their home would decrease in value because of the apartments.

Bright said she's glad the project is not happening but wants to see the likelihood of such a complex disappear.

"It will make me feel much better when they sell that land," she said.

The housing authority owns the land and has no plans to build on it in the near future, Franco said.

"If it's feasible to develop something there, then that will be a decision made by the board," he said.

The housing authority has a five-member board of commissioners.

The board's chairman, Rocco Montesano said the housing authority may hold on to the land or sell it and apply those proceeds to other projects.

Franco said there are no plans to build a similar complex elsewhere.

Montesano said he's disappointed the commission isn't doing the project.

"We really wanted to get a development in the Southside, in an area where families live," he said. "And break the chain of putting everything in one area and calling it low-income housing."

Contact Beth Wilson at 886-3748 or wilsonb@caller.com

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Title 24: Housing and Urban Development
PART 982SECTION 8 TENANT BASED ASSISTANCE: HOUSING CHOICE VOUCHER PROGRAM
Subpart JHousing Assistance Payments Contract and ~~~~~~~~~~Owner Responsibility~~~~~~~~~~~~~~~~~~~~~~~~~~

§ 982.452 Owner responsibilities.
(a) The owner is responsible for performing all of the owner's obligations under the HAP contract and the lease.

(b) The owner is responsible for:

(1) Performing all management and rental functions for the assisted unit, including selecting a voucher-holder to lease the unit, and deciding if the family is suitable for tenancy of the unit.

(2) Maintaining the unit in accordance with HQS, including performance of ordinary and extraordinary maintenance. For provisions on family maintenance responsibilities, see §982.404(a)(4).

(3) Complying with equal opportunity requirements.

(4) Preparing and furnishing to the PHA information required under the HAP contract.

(5) Collecting from the family:

(i) Any security deposit.

(ii) The tenant contribution

(the part of rent to owner not covered by the housing assistance payment).

(iii) Any charges for unit damage by the family.

(6) Enforcing tenant obligations under the lease.

(7) Paying for utilities and services (unless paid by the family under the lease).

(c) For provisions on modifications to a dwelling unit occupied or to be occupied by a disabled person, see 24 CFR 100.203.

(Approved by the Office of Management and Budget under control number 25770169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 63 FR 23861, Apr. 30, 1998; 64 FR 26647, May 14, 1999]

Subpart JHousing Assistance Payments Contract and Owner Responsibility~~~~~~~~~~~~~~~~

2008-01-23T01:10:00.000-08:00

Title 24: Housing and Urban Development
PART 982SECTION 8 TENANT BASED ASSISTANCE: HOUSING CHOICE VOUCHER PROGRAM
Subpart JHousing Assistance Payments Contract and ~~~~~~~~~~Owner Responsibility~~~~~~~~~~~~~~~~~~~~~~~~~~

§ 982.452 Owner responsibilities.
(a) The owner is responsible for performing all of the owner's obligations under the HAP contract and the lease.

(b) The owner is responsible for:

(1) Performing all management and rental functions for the assisted unit, including selecting a voucher-holder to lease the unit, and deciding if the family is suitable for tenancy of the unit.

(2) Maintaining the unit in accordance with HQS, including performance of ordinary and extraordinary maintenance. For provisions on family maintenance responsibilities, see §982.404(a)(4).

(3) Complying with equal opportunity requirements.

(4) Preparing and furnishing to the PHA information required under the HAP contract.

(5) Collecting from the family:

(i) Any security deposit.

(ii) The tenant contribution

(the part of rent to owner not covered by the housing assistance payment).

(iii) Any charges for unit damage by the family.

(6) Enforcing tenant obligations under the lease.

(7) Paying for utilities and services (unless paid by the family under the lease).

(c) For provisions on modifications to a dwelling unit occupied or to be occupied by a disabled person, see 24 CFR 100.203.

(Approved by the Office of Management and Budget under control number 25770169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 63 FR 23861, Apr. 30, 1998; 64 FR 26647, May 14, 1999]

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CounterPunch

October 14, 2002
9-11 and the Rise of the Academic Redneck
The Tragedy of Alan Dershowitz

by DON ATAPATTU

America the 1960's was so much more straightforward where the ethnic boundaries lay within the struggle for civil rights and equality. The 'White' community in this instance had no vested interest in changing the status quo, but many joined the fight through a sense of justice and morality. A very substantial proportion of 'White' liberal activists were American Jews, and they provided crucial financial and political support. The NAACP's first President Arthur Spingarn was Jewish, as were all his successors until the 1970's. In those days the mainstream leadership of both the Black and Jewish communities did not have obviously opposing agendas. There were few progressives (Jewish or otherwise) who could see any contradiction between being active in civil rights in America, while supporting the Zionist enterprise in Israel. Martin Luther King would stoutly stand by his Jewish backers in defending Zionism, going so far as to use the familiar libel that Zionism's critics were motivated by anti Semitism. Today the scenario has greatly changed, with the disintegration of that Sixties coalition, and a radical realignment of racial politics. A well documented schism has opened up between Blacks and Jews, which may be partly attributable to class (an obvious disparity exists between affluent Jews and mainly working class Blacks). Another explanation can lie with the changes in racial dynamics and the rise of 'victim culture'. When Blacks, Jews, Latinos and even members of the White Christian majority all want to assert their 'victim' status, there is far less cohesiveness in the fight for 'equality'. This struggle has now degenerated to a fight with regard to the division of the spoils among the competing ethnic groups. Such a conflict can only be a zero sum game, where a victory in either material entitlement or the perceived moral high ground for one faction is automatically a blow for another. Consequently minorities are often opposed to each other, and reports of Black-Jewish-Latino friction escalating to violence are more and more familiar. However, relatively new to this picture is the importation of the Muslim-Jewish conflict into the domestic American situation.

Since the 1967 Arab-Israeli war the leadership of the American Jewish organisations have found a common identity in preserving the memory of the Nazi genocide and support for Israel. Aside from occasional Black Muslim radicals, the only real opposition to this was from marginal individuals on the extreme Right. Although there has been a sizeable population of Arabs in America for some time, in the past they were mainly affluent, conservative and Christian. Recent immigration trends have caused America's Arab population to become poorer, more Muslim and less passive with regard to America's uncompromisingly pro Israel foreign policy. African Americans have also less reason to support Israel, with many identifying with the Palestinian plight (Jesse Jackson once remarked that Palestinians were the 'niggers of the Middle East') and questioning why Israel was apartheid era South Africa's most persistent ally. American Arabs and Muslims have arguably now replaced Blacks as the most vulnerable and most reviled of minorities. Even the conventional terms of abuse for African Americans have been modified to apply to Americans of Middle Eastern ancestry e.g. 'sand-nigger' and 'dune-coon'. The old threat of a fifth column ethnic group that led to the internment of Japanese-Americans is now firmly resurrected. Never a favourite of Hollywood and the news media (especially when a vocal minority espouse extreme and anti-Semitic views), after the 9-11 atrocities Arabs and Muslims are now a particularly unpopular and easy target for the visceral hostility of some quarters in the US. Simultaneously, some Jewish leaders are questioning whether to continue participating in an anti racist coalition that includes many who have no love of Israel or Zionism. Possibly a more appropriate alliance partner would be the conservative Right who have no constituency among Blacks or Arabs, and whose beliefs are more compatible with the policies of the Israeli government. Although some Jews remain in the progressive tradition, others in the Daniel Pipes mould have coupled an extremely chauvinistic position on the Middle East with a conservative stand on domestic issues. Another influential grouping is of pro Zionist Democrats who occupy the ever less tenable position of actively supporting 'liberal' policies at home, while being uncritical supporters of Israel repressive actions in the Middle East.

Alan Dershowitz falls squarely into the last category. A professor of Harvard Law School since the age of 28, he is known chiefly for his notorious celebrity clients such as Claus Von Bulow and OJ Simpson. Despite his past activism as a civil libertarian ('a judicial St. Jude' is how Time described him), and his benign, slightly dishevelled appearance (something akin to a paunchy Woody Allen), the radical policies he now sanctions are nearer David Duke than Ralph Nader. The ongoing Palestinian intifada and the polarisation of opinion that has accompanied it, has provoked an ugly tribalism in him that spawned a flood of lectures, articles and books (the latest being 'Why Terrorism Works'), dehumanising Palestinians and criticising the Israeli government for being too soft in their repression. This former civil libertarian now supports torture, and urges the Israeli government to destroy Palestinian villages in response to terror attacks. However, Dershowitz's writings and interviews do not focus on terrorism in general (defined here as the use of violence against civilians for political purposes). It is not even primarily about terrorism against America. What truly infuriates Dershowitz is not terrorism per se, but terrorism against people of Jewish background--particularly those who are based in Israel.

In his new book and in interviews, Dershowitz details the numerous atrocities committed by Palestinians against Israelis, but fails to mention that the civilian and military Jewish casualties throughout Israel's entire history are equal or less than the Arab casualties of Sharon's Lebanon invasion alone. He also conveniently sidesteps the issue of how it was Zionist terrorism that drove the British out of Palestine, and later expelled three quarters of the native population from their own land (the ludicrous Israeli account that Palestinians fled their farms and houses of their own accord is not supported by serious scholarship). Obviously support for the 'good terrorism' that created Israel, cannot be reconciled with the 'bad terrorism' of the natives who want their territory back. When quizzed on this contradiction on British television, he suggested that Menachem Begin was punished for his terrorist activities by the fact that it took him so long to become Israeli Prime Minister--this from a man who endorses the torture of Arab suspects; and who supported Nathan Lewin after his suggestion that the relatives of Palestinian terrorists should be executed by Israel! The blatant discrimination of this position is enlightening on how Dershowitz views the value of Muslim and Christian Semites (like Jews, Arabs are a Semitic people and both share a common ancestry), vis a vis the lives of Semites of the Jewish faith. Despite his narcissistic self image as a champion of the poor and oppressed (see his portrayal in the movie of his book 'Reversal of Fortune'), he effectively endorses for Arabs the status of Blacks in the old American South, where the stronger group may lynch and suffer no penalty, and the underclass face violent punishment on the basis of a suspicion alone.

Inevitably, The New Republic has lavished publicity on Dershowitz and praises him for dismissing 'silly dogma' that Israel's policy of collective punishment against 'the innocent who are in a good position to control the guilty' is somehow immoral. Regrettably, The New Republic does not think it worth mentioning that this tactic is illegal under international law, and was much employed by the Nazis. Furthermore, both Dershowitz and his TNR admirers seem oblivious to the fact that this logic gives credibility to Palestinian extremists who attack Israeli civilians indiscriminately. After all if it is right to punish Palestinians who 'cheer on or otherwise support (Palestinian) terrorism', are not the civilians who voted for the Israeli government's policy occupation and apartheid in the West Bank also 'sufficiently culpable' and subsequently liable for punishment? If consistency is to be maintained, the Palestinians are surely allowed to respond in kind against Israeli 'targeted' assassinations (which have also killed scores of innocent bystanders); theft of land, water, and other resources (the internal organs of slain Palestinian children being a particularly grisly example); daily curfews; and the economic and social strangulation inflicted through the closure of entire communities. Furthermore, The New Republic applauds Dershowitz for ridiculing any explanation of the motivations of terrorism as 'appeasement', quoting approvingly that 'we don't address the root causes of a bad marriage that may have led a man to murder his wife--we hunt down the murderer and punish him'. Quite apart from the fact that his formidable skills as a lawyer have actively prevented wealthy wife killers from facing punishment, he fails to apply his own scenario to all sides. Consider for example if a man breaks down your door, brutalises and humiliates your family, and then confiscates your house while declaring you should serve him as cheap labour. Is it right that you should collaborate with him or should a recognised authority arrest the perpetrator and bring him to justice? As this is what Israel's 35 year occupation has done to the Palestinians, will Mr Dershowitz and the TNR kindly add their voices to those demanding the immediate arrest of Sharon, Peres etc? Once this unsavoury double act is sharing a cell with Milosevic in the Hague, perhaps a confession can be extracted from them with the assistance of torture. This in turn can help facilitate a guilty verdict from a military court and hasten the demolition of their homes and the execution of their relatives as a deterrent to others.

What is more, Dershowitz's (and the New Republic's) definition of 'terrorism' is predictably self serving. By not recognising as 'terrorism' most politically orientated violence used against civilians by states (Arab and Islamic states obviously excepted), America and her proxies are let off the hook. 'You can always call your enemy a terrorist' he says in a Salon.com interview, scoffing at Muslim critics of Israel and America's human rights records, but he is as guilty himself. This is fine when Dershowitz is preaching to the converted, but the wider public will be right to be sceptical. After all, if everyone accepts that members of the French resistance who engaged in military action against the occupying German army were fighting for 'liberation', than Palestinian guerrilla attacks on the occupying Israel Defence Force (IDF) must be judged likewise. Additionally, during the British rule of Palestine former Israeli Prime Ministers Begin and Shamir were leaders of the terror groups Irgun and the Stern Gang respectively. Current incumbent Ariel Sharon has never stopped being a terrorist, with a record that stretches over 5 decades and claimed thousands of victims (for a full history see the Counterpunch article 'The Crimes of Ariel Sharon'). Naturally, Dershowitz denies the Israeli government is involved in terror itself, and in a salon.com interview describes Israel's targeted assassinations as 'the opposite of terrorism..very precise and very specific'. Sadly, he does not seem unduly concerned about the scores of bystanders killed in these attacks, many of them children. Interestingly enough though, he plays down ANC violence in the struggle against apartheid - 'The government of South Africa was using terrorism against innocent civilians and the ANC was using counterterrorism' he states in the same interview. This is not a wise argument to utilise, as in virtually every way the repression of the IDF in the West Bank and Gaza is worse than that employed by the pre democracy Pretoria government. As Edward Said observed: 'even under apartheid, F16 jets were never used to bomb African homelands as they are now sent against Palestinian towns and villages'.

Professor Dershowitz also has a great deal to say about the immorality of the Palestinians when compared to the Israelis. He declares that the Palestinians invented international terrorism in 1968 (the inhabitants of Hiroshima, Nagasaki, Dresden and Manchuria might take issue with this); and how 'Palestinians think they're the only group that has the right to use terrorism' (presumably the PKK, ETA, the IRA, and the Tamil Tigers are also on Arafat's pay roll). He tells 'salon.com' that 'the Jews who were subject to the holocaust didn't try to terrorise German babies or children .....they had a higher moral standard'. Leaving aside the question of whether someone who makes a living keeping prisons free from wealthy killers is an appropriate authority on ethics, this comparison is spurious. The Nazis (mad as they were) were not reckless enough to build settlements of their own civilians on the territory surrounded by the hostile natives that actually lived there before being driven off it. Likewise, the 'civilian' status of Jewish settlements in the West Bank is also highly suspect, built as they are by the armoured bulldozers of the IDF on the confiscated and ethnically cleansed territory of its Arab owners. If these highly fortified citadels, populated by gun toting fanatics (often American immigrants), are strategic military installations, than the responsibility for attacks on their residents must lie with the occupying power that built them. Correspondingly, how was it that in 1948 three quarters of all the Palestinians were frightened enough to be driven off the land they had lived on for over a thousand years? A 1948 letter to the New York Times signed by Albert Einstein, Hannah Arendt and other notables has this to say on the notorious Deir Yassin massacre: 'terrorist bands attacked this peaceful village, which was not a military objective in the fighting, killed most of its inhabitants - 240 men, women and children - and kept a few of them alive to parade as captives through the streets of Jerusalem'. Eye witness accounts of this crime report dozens of children slaughtered in front of their mothers and 25 pregnant women bayoneted in the stomach. In the Occupied Territories today, an investigation by Physicians for Human Rights USA concluded that 'the pattern of injuries seen in many victims did not reflect the IDF use of firearms in life-threatening situations but rather indicated targeting solely for the purpose of wounding or killing'. Last year, 'Harper's' journalist Chris Hedges reported witnessing IDF soldiers enticing Palestinian children into a trap to 'murder them for sport'. Is this the higher standard that Dershowitz is talking about?

So finally, what options are available to the Palestinians in their opposition to Israeli occupation? Dershowitz generously accepts that they should be allowed the right to 'passive protest'. What he does not mention, is that civil disobedience is hardly a new idea to Palestinian leaders, and was attempted in the 1980's during the original Palestinian 'intifada'. Although it initially caused consternation amongst Israeli ministers, the IDF and Shin Bet eventually quashed this through characteristic brutality, (including the now familiar targeted culling of Palestinian leaders) while the US turned its usual blind eye. Furthermore, Dershowitz contradicts his position on the runaway success of Palestinian terror. He claims to believe the Palestinians would have had a state by now had they engaged in civil disobedience rather than violence; but if terrorism has brought them so many benefits, why do they live in the miserable, stateless existence they have today?

Those who are long term observers of the disparity between the American response to Israel's violations of international law to that of its neighbours, will not be surprised at the double standards of either the US or Dershowitz. As Hanan Ashrawi memorably said: 'Iraq (16 flouted resolutions) may be outside the law, but Israel (29 flouted resolutions) is above it'. In short, Dershowitz's only valid point is that terrorism against civilians is morally repugnant, but this particular nugget of reasoning is the intellectual equivalent of pointing out that the sky is blue. No rational, moral person could disagree with that, anymore than they could agree with Dershowitz's remedies or analysis. In reality, the main difference between Israel and the Palestinian terrorists is scale and what is considered tolerable by the West i.e. Israel has a license and funding from America for its military occupation, but the Palestinians are not permitted the privilege to fight back. Other US client states (such as Turkey and pre 9-11 Saudi Arabia) also enjoy immunity from any serious repercussions despite their bloody histories of brutality, oppression, and breaking standards on basic human rights. China in Tibet and Russia in Chechnya have additionally operated with impunity due to their size and military / political clout on the World stage (though unlike Israel or Turkey, they are not massively subsidised by the American taxpayer). Such immoral hypocrisy although reprehensible, has long been the staple of American foreign policy and indeed the hegemonic powers throughout history. What is alarming today is not the clamour of mainstream voices such as Dershowitz to import Israel's aggressive chauvinism wholesale to America's domestic agenda, but the fact that there is a large and growing audience willing to listen to him. To return to the sixties parallel, the civil rights leadership in those days would tell White America that if they were not part of the solution to bigotry and injustice, then they were part of the problem. What a tragedy that a former civil libertarian has chosen to be such a big problem.

Further Reading:

The Iron Wall--Avi Shlaim
Image and Reality of the Israel-Palestine Conflict--Norman Finkelstein
Pity the Nation--Robert Fisk
The Fateful Triangle--Noam Chomsky

For an orthodox Zionist narrative of the Israeli--Arab conflict see 'Empires of Sand' by Inari Karsh, or any edition of The New Republic.

Don Atapattu lives in Manchester, England. He can be reached at: don_atapattu@yahoo.co.uk

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E THINK IT ONLY PROPER TO ADD THAT NEITHER THE HOUSING ACT PASSED BY

2006-10-16T01:41:00.000-07:00

From the U.S. Government Printing Office via GPO Access

Case:   TUCKER V. TEXAS

Case #: 326US517


NO. 87.  ARGUED DECEMBER 6, 1945.  - DECIDED JANUARY 7, 1946.  -
REVERSED.


1.  A STATE CAN NOT, CONSISTENTLY WITH THE FREEDOM OF RELIGION AND THE
PRESS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, IMPOSE
CRIMINAL PUNISHMENT UPON A PERSON ENGAGED IN RELIGIOUS ACTIVITIES AND
DISTRIBUTING RELIGIOUS LITERATURE IN A VILLAGE OWNED BY THE UNITED
STATES UNDER A CONGRESSIONAL PROGRAM DESIGNED TO PROVIDE HOUSING FOR
WORKERS ENGAGED IN NATIONAL DEFENSE ACTIVITIES, WHERE THE VILLAGE IS
FREELY ACCESSIBLE AND OPEN TO THE PUBLIC AND HAS ALL THE
CHARACTERISTICS OF A TYPICAL AMERICAN TOWN, EVEN THOUGH THE PUNISHMENT
IS ATTEMPTED UNDER A STATE STATUTE MAKING IT UNLAWFUL FOR ANY "PEDDLER
OR HAWKER OF GOODS OR MERCHANDISE" WILLFULLY TO REFUSE TO LEAVE THE
PREMISES AFTER HAVING BEEN NOTIFIED TO DO SO BY THE OWNER OR POSSESSOR
THEREOF.  P. 519.

2.  NEITHER THE FEDERAL HOUSING ACT NOR THE HOUSING AUTHORITY
REGULATIONS INDICATE A PURPOSE TO RESTRICT FREEDOM OF RELIGION AND OF
THE PRESS WITHIN VILLAGES SUCH AS THE ONE HERE INVOLVED.  P. 520.

3.  A JUDGMENT OF AN INTERMEDIATE STATE COURT SUSTAINING A STATE
STATUTE CHALLENGED AS REPUGNANT TO THE FEDERAL CONSTITUTION IS
REVIEWABLE HERE UNDER SEC. 237(A) OF THE JUDICIAL CODE, WHERE SUCH
INTERMEDIATE COURT IS THE HIGHEST COURT OF THE STATE IN WHICH A
DECISION IN THE CASE COULD BE HAD.  P. 518.

TUCKER V. TEXAS.

APPEAL FROM THE COUNTY COURT OF MEDINA COUNTY, TEXAS.

APPEAL FROM A JUDGMENT SUSTAINING A CONVICTION FOR VIOLATION OF A
STATE STATUTE CHALLENGED AS INVALID UNDER THE FEDERAL CONSTITUTION.

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.

THE APPELLANT WAS CHARGED IN THE JUSTICE COURT OF MEDINA COUNTY,
TEXAS, WITH VIOLATING ARTICLE 479, CHAP. 3 OF THE TEXAS PENAL CODE
WHICH MAKES IT AN OFFENSE FOR ANY "PEDDLER OR HAWKER OF GOODS OR
MERCHANDISE" WILFULLY TO REFUSE TO LEAVE PREMISES AFTER HAVING BEEN
NOTIFIED TO DO SO BY THE OWNER OR POSSESSOR THEREOF.  THE APPELLANT
URGED IN HIS DEFENSE THAT HE WAS NOT A PEDDLER OR HAWKER OF
MERCHANDISE, BUT A MINISTER OF THE GOSPEL ENGAGED IN THE DISTRIBUTION
OF RELIGIOUS LITERATURE TO WILLING RECIPIENTS.  HE CONTENDED THAT TO
CONSTRUE THE TEXAS STATUTE AS APPLICABLE TO HIS ACTIVITIES WOULD, TO
THAT EXTENT, BRING IT INTO CONFLICT WITH THE CONSTITUTIONAL GUARANTEES
OF FREEDOM OF PRESS AND RELIGION.  HIS CONTENTION WAS REJECTED AND HE
WAS CONVICTED.  ON APPEAL TO THE MEDINA COUNTY COURT, HIS
CONSTITUTIONAL CONTENTION WAS AGAIN OVERRULED.  SINCE HE COULD NOT
APPEAL TO A HIGHER STATE COURT THIS APPEAL UNDER SEC. 237(A) OF THE
JUDICIAL CODE, 28 U.S.C. 344(A) IS PROPERLY BEFORE US.  LARGENT V.
TEXAS, 318 U.S. 418.

THE FACTS SHOWN BY THE RECORD NEED BE BUT BRIEFLY STATED.  APPELLANT
IS AN ORDAINED MINISTER OF THE GROUP KNOWN AS JEHOVAH'S WITNESSES.  IN
ACCORDANCE WITH THE PRACTICES OF THIS GROUP HE CALLS ON PEOPLE FROM
DOOR TO DOOR, PRESENTS HIS RELIGIOUS VIEWS TO THOSE WILLING TO LISTEN,
AND DISTRIBUTES RELIGIOUS LITERATURE TO THOSE WILLING TO RECEIVE IT.
IN THE COURSE OF HIS WORK, HE WENT TO THE HONDO NAVIGATION VILLAGE
LOCATED IN MEDINA COUNTY, TEXAS.  THE VILLAGE IS OWNED BY THE UNITED
STATES UNDER A CONGRESSIONAL PROGRAM WHICH WAS DESIGNED TO PROVIDE
HOUSING FOR PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES.  42 U.S.C.,
SECS. 1521-1553.  ACCORDING TO ALL INDICATIONS THE VILLAGE WAS FREELY
ACCESSIBLE AND OPEN TO THE PUBLIC AND HAD THE CHARACTERISTICS OF A
TYPICAL AMERICAN TOWN.  THE FEDERAL PUBLIC HOUSING AUTHORITY HAD PLACED
THE BUILDINGS IN CHARGE OF A MANAGER WHOSE DUTY IT WAS TO RENT THE
HOUSES, COLLECT THE RENTS, AND GENERALLY TO SUPERVISE OPERATIONS,
SUBJECT TO OVER-ALL CONTROL BY THE AUTHORITY.  HE ORDERED APPELLANT TO
DISCONTINUE ALL RELIGIOUS ACTIVITIES IN THE VILLAGE.  APPELLANT
REFUSED.  LATER THE MANAGER ORDERED APPELLANT TO LEAVE THE VILLAGE.
INSISTING THAT THE MANAGER HAD NO RIGHT TO SUPPRESS RELIGIOUS
ACTIVITIES, APPELLANT DECLINED TO LEAVE, AND HIS ARREST FOLLOWED.  AT
THE TRIAL THE MANAGER TESTIFIED THAT THE CONTROLLING FEDERAL AGENCY HAD
GIVEN HIM FULL AUTHORITY TO REGULATE THE CONDUCT OF THOSE LIVING IN THE
VILLAGE, AND THAT HE DID NOT ALLOW PREACHING BY MINISTERS OF ANY
DENOMINATION WITHOUT A PERMIT ISSUED BY HIM IN HIS DISCRETION.  HE
THOUGHT THIS BROAD AUTHORITY WAS ENTRUSTED TO HIM, AT LEAST IN PART, BY
A REGULATION, WHICH THE AUTHORITY'S WASHINGTON OFFICE HAD ALLEGEDLY
PROMULGATED.  HE TESTIFIED THAT THIS REGULATION PROVIDED THAT NO
PEDDLERS OR HAWKERS COULD COME INTO OR REMAIN IN THE VILLAGE WITHOUT
GETTING PERMISSION FROM THE MANAGER.  FN1  SINCE THE TEXAS COURT HAS
DEEMED THIS EVIDENCE OF AUTHORITY OF THE MANAGER TO SUPPRESS
APPELLANT'S ACTIVITIES SUFFICIENT TO SUPPORT A CONVICTION UNDER THE
STATE STATUTE, WE ACCEPT THEIR HOLDING IN THIS RESPECT FOR THE PURPOSES
OF THIS APPEAL.

THE FOREGOING STATEMENT OF FACTS SHOWS THEIR CLOSE SIMILARITY TO THE
FACTS WHICH LED US THIS DAY TO DECIDE IN MARSH V. ALABAMA, ANTE, P.
501, THAT MANAGERS OF A COMPANY-OWNED TOWN COULD NOT BAR ALL
DISTRIBUTION OF RELIGIOUS LITERATURE WITHIN THE TOWN, OR CONDITION
DISTRIBUTION UPON A PERMIT ISSUED AT THE DISCRETION OF ITS MANAGEMENT.
THE ONLY DIFFERENCE BETWEEN THIS CASE AND MARSH V. ALABAMA IS THAT HERE
INSTEAD OF A PRIVATE CORPORATION, THE FEDERAL GOVERNMENT OWNS AND
OPERATES THE VILLAGE.  THIS DIFFERENCE DOES NOT AFFECT THE RESULT.
CERTAINLY NEITHER CONGRESS NOR FEDERAL AGENCIES ACTING PURSUANT TO
CONGRESSIONAL AUTHORIZATION MAY ABRIDGE THE FREEDOM OF PRESS AND
RELIGION SAFEGUARDED BY THE FIRST AMENDMENT.  TRUE, UNDER CERTAIN
CIRCUMSTANCES IT MIGHT BE PROPER FOR SECURITY REASONS TO ISOLATE THE
INHABITANTS OF A SETTLEMENT, SUCH AS HONDO VILLAGE, WHICH HOUSES
WORKERS ENGAGED IN PRODUCING WAR MATERIALS.  BUT NO SUCH NECESSITY AND
NO SUCH INTENTION ON THE PART OF CONGRESS OR THE PUBLIC HOUSING
AUTHORITY ARE SHOWN HERE.

IT FOLLOWS FROM WHAT WE HAVE SAID THAT TO THE EXTENT THAT THE TEXAS
STATUTE WAS HELD TO AUTHORIZE APPELLANT'S PUNISHMENT FOR REFUSING TO
REFRAIN FROM RELIGIOUS ACTIVITIES IN HONDO VILLAGE IT IS AN INVALID
ABRIDGEMENT OF THE FREEDOM OF PRESS AND RELIGION.

WE THINK IT ONLY PROPER TO ADD THAT NEITHER THE HOUSING ACT PASSED BY
CONGRESS NOR THE HOUSING AUTHORITY REGULATIONS CONTAIN LANGUAGE
INDICATING A PURPOSE TO BAR FREEDOM OF PRESS AND RELIGION WITHIN
VILLAGES SUCH AS THE ONE HERE INVOLVED.  THE CASE IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED.

FN1  THE AVAILABLE REGULATIONS OF THE AUTHORITY, OF WHICH WE CAN TAKE
JUDICIAL NOTICE, BOWLES V. UNITED STATES, 319 U.S. 33, 35, DO NOT SHOW
A REGULATION OF THIS KIND.

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.

MR. JUSTICE FRANKFURTER, CONCURRING.

IT WILL BE TIME ENOUGH TO CONSIDER THE CONSTITUTIONALITY OF AN ACT OF
CONGRESS THAT IS CLAIMED TO BE IN DEFIANCE OF THE FIRST AMENDMENT WHEN
SUCH LEGISLATION BY CONGRESS CONFRONTS US WITH THE PROBLEM.  THE
PRESENT CASE DOES NOT PRESENT SUCH A SITUATION.  SUBJECT TO THIS
RESERVATION, I AGREE WITH THE OPINION OF THE COURT FOR THE REASONS
BRIEFLY STATED IN MARSH V. ALABAMA, ANTE, P. 510.  IN THE CASE OF
COMMUNITIES ESTABLISHED UNDER THE SPONSORSHIP OF THE UNITED STATES BY
VIRTUE OF ITS SPENDING POWER, IT WOULD, I SHOULD THINK, BE EVEN LESS
DESIRABLE THAN IN THE CASE OF COMPANY TOWNS TO MAKE THE CONSTITUTIONAL
FREEDOMS OF RELIGION AND SPEECH TURN ON GOSSAMER DISTINCTIONS ABOUT THE
EXTENT TO WHICH LAND HAS BEEN "DEDICATED" TO PUBLIC USES.

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON,
DISSENTING.

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON CONSTRUE
THE RECORD IN THIS CASE AS SHOWING A CONVICTION FOR REFUSING, AT THE
REQUEST OF ITS AUTHORIZED AGENT, TO LEAVE PREMISES WHICH ARE OWNED BY
THE UNITED STATES AND WHICH HAVE NOT BEEN SHOWN TO BE DEDICATED TO
GENERAL USE BY THE PUBLIC.  WE, THEREFORE, WOULD AFFIRM THE CONVICTION
FOR THE REASONS GIVEN IN THE DISSENT IN MARSH V. ALABAMA, ANTE, P.
511.

http://www.supremecourtus.gov/sitemap.html

2006-10-16T01:39:00.000-07:00

Title 24: Housing and Urban Development
PART 982—SECTION 8 TENANT BASED ASSISTANCE: HOUSING CHOICE VOUCHER PROGRAM
Subpart J—Housing Assistance Payments Contract and ~~~~~~~~~~Owner Responsibility~~~~~~~~~~~~~~~~~~~~~~~~~~

§ 982.452 Owner responsibilities.
(a) The owner is responsible for performing all of the owner's obligations under the HAP contract and the lease.

(b) The owner is responsible for:

(1) Performing all management and rental functions for the assisted unit, including selecting a voucher-holder to lease the unit, and deciding if the family is suitable for tenancy of the unit.

(2) Maintaining the unit in accordance with HQS, including performance of ordinary and extraordinary maintenance. For provisions on family maintenance responsibilities, see §982.404(a)(4).

(3) Complying with equal opportunity requirements.

(4) Preparing and furnishing to the PHA information required under the HAP contract.

(5) Collecting from the family:

(i) Any security deposit.

(ii) The tenant contribution

(the part of rent to owner not covered by the housing assistance payment).

(iii) Any charges for unit damage by the family.

(6) Enforcing tenant obligations under the lease.

(7) Paying for utilities and services (unless paid by the family under the lease).

(c) For provisions on modifications to a dwelling unit occupied or to be occupied by a disabled person, see 24 CFR 100.203.

(Approved by the Office of Management and Budget under control number 2577–0169)
[60 FR 34695, July 3, 1995, as amended at 60 FR 45661, Sept. 1, 1995; 63 FR 23861, Apr. 30, 1998; 64 FR 26647, May 14, 1999]

My job is to make sure that you do your job. I'm Special Counsel for Internal Affairs, so my jurisdiction's pretty much in your face

2006-10-08T01:56:00.000-07:00

The doctrine of de minimus non curat lex or “the law does not care for trifling matters”

2006-10-07T21:13:00.000-07:00

=1" );

IN THE SUPREME COURT OF TEXAS

════════════
No. 04-0147
════════════

Theresa Marshall, Petitioner

v.

Housing Authority of The City of San Antonio, Respondent

════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourth District of Texas
════════════════════════════════════════════════════

Argued on April 12, 2005

Justice Johnson delivered the opinion of the Court.

Justice Green did not participate in the decision.

In this appeal we address the issues of whether a tenant may appeal from an adverse judgment in a forcible detainer action without posting a supersedeas bond, and whether a forcible detainer action is moot when the tenant is no longer in possession of the premises and her lease has expired. Answering both questions in the affirmative, we dismiss the case as moot and vacate the underlying judgments.
I. Background
Petitioner Theresa Marshall leased an apartment from a non-profit public facility corporation managed by the Housing Authority of the City of San Antonio for a term beginning on February 1, 2002, and ending on January 31, 2003. Her rent was subsidized by a federal housing assistance program. Following a shooting at her apartment, the Housing Authority gave Marshall notice that it was terminating her right to occupy the apartment, then filed a forcible detainer action seeking possession of the apartment. On November 1, 2002, the trial court entered judgment awarding the Housing Authority (1) possession of the apartment after November 14, 2002, (2) court costs, and (3) post-judgment interest. See Tex. Prop. Code §§ 24.006, 24.0061. On November 8, 2002, Marshall filed a motion seeking suspension of enforcement of the judgment or, in the alternative, setting of a supersedeas bond. In the motion she specified that she intended to appeal. Following a hearing on November 7, 2002, a supersedeas bond amount was set pursuant to Texas Property Code Section 24.007, but Marshall did not post bond. On November 8, 2002, she filed notice of appeal.
The parties agree that a writ of possession was never executed. Marshall does not contest the Housing Authority’s assertion that she vacated the apartment on November 14, 2002. The record does not indicate whether the Housing Authority re-let the apartment after Marshall relinquished possession.
On April 11, 2003, after her lease term had expired, Marshall filed her brief in the court of appeals praying that the court reverse the trial court’s judgment and award her possession of the apartment. She did not claim in her brief or in her later reply brief any contractual or other right to possession.
The court of appeals determined that Marshall’s appeal was moot and dismissed the appeal for want of jurisdiction, although it did not vacate the trial court’s judgment. The court of appeals reasoned that because Marshall had relinquished possession of the apartment, the court could no longer grant effectual relief. ___ S.W.3d ___.
As this case was presented to the court of appeals and as it is presented to us, Marshall’s lease has expired. She does not reference any evidence on which to base a claim that she is entitled to current immediate possession of the apartment. She nonetheless asserts that the court of appeals erred in dismissing her appeal without reviewing its merits because (1) contrary to the Housing Authority’s position, review of her appeal on the merits should not be contingent on her having posted a supersedeas bond pursuant to Texas Property Code Section 24.007; (2) vacating her apartment did not moot her appeal because she vacated involuntarily and indicated her intent to appeal the trial court’s judgment before she left the apartment; and (3) if she prevails, the trial court’s judgment will be reversed and then (a) she will be entitled to recover the fair market value of her apartment from the time of her eviction through expiration of her lease; (b) the adverse collateral consequences she has suffered and will suffer because the judgment was entered, including the potential five-year loss of a federal rent subsidy, will be ameliorated; and (c) she will be relieved of liability for payment of the Housing Authority’s court costs and post-judgment interest.
The Housing Authority responds that (1) Marshall failed to perfect appeal by filing a supersedeas bond, and (2) her appeal is moot and no exception to the mootness doctrine warrants consideration of her appeal on the merits. We granted Marshall’s petition for review to consider whether the court of appeals correctly decided its jurisdiction. Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992); see Tex. Gov’t Code § 22.225.
We conclude that Marshall’s case is moot and that the court of appeals erred in dismissing only the appeal and leaving the trial court’s judgment in place. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (holding that because the case was moot the proper action was to vacate the court of appeals’ judgment and opinion, and dismiss the case as moot); Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 230 (Tex. 1993) (vacating the judgment of the court of appeals and of the trial court, and dismissing the case as moot).
II. Forcible Detainer Action
The only issue in a forcible detainer action is the right to actual possession of the premises. Tex. R. Civ. P. 746; see also Tex. Prop. Code § 24.001. Some courts of appeals have held that if a tenant fails to post a supersedeas bond pursuant to Texas Property Code Section 24.007, the appellate court lacks jurisdiction.
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See Reyes v. R.C. Mgmt., Inc., No. 04-01-00405-CV, 2001 WL 1479256 (Tex. App.—San Antonio, Nov. 21,2001, pet. denied) (not designated for publication).Close Other courts of appeals have concluded that if a tenant vacates the premises, (1) the tenant’s appeal is moot because the court can no longer grant effectual relief,
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Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 363 (Tex. App.—Beaumont 2000, pet. dism’dw.o.j.); see, e.g., Alexander v. Housing Auth., No. 06-03-00157-CV, 2004 WL 422614 (Tex. App.—Texarkana, March8, 2004, no pet.) (mem. op.) (holding that once a tenant was removed from the premises, the tenant’s appeal of theforcible detainer action was rendered moot because the court could no longer grant effectual relief); Calhoun v. BancoPopular N. Am., No. 14-01-01205-CV, 2002 WL 246560 (Tex. App.—Houston [14th Dist.] Feb. 21, 2002, no pet.) (notdesignated for publication) (same); Ehrlich v. Olsen, No. 14-01-01003-CV, 2002 WL 122307 (Tex. App.—Houston[14th Dist.] Jan. 31, 2002, no pet.) (not designated for publication) (same); Copenhaver v. Fed. Home Loan MortgageCorp., No. 08-02-00016-CV, 2002 WL 1341139 (Tex. App.—El Paso, June 20, 2002, no pet.) (not designated forpublication) (same); see also Garner v. Callaway P’ship, No. 10-04-00340-CV, 2005 WL 428517 (Tex. App.—Waco,Feb. 23, 2005, no pet.) (mem. op.) (holding that once a writ of possession was executed the appeal was moot).Close or (2) the issue of possession is moot, but the court can still consider issues unrelated to possession.
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See Manley v. Young, No. 01-03-00199-CV, 2004 WL 1516434 (Tex. App.—Houston [1st Dist.] July 8,2004, no pet.) (mem. op.) (holding that once the tenant was removed from the premises, the issue of possession wasrendered moot; the only reviewable issues were those unrelated to possession); Baxter v. Gates of Normandie, No.05-03-00245-CV, 2004 WL 303594 (Tex. App.—Dallas, Feb. 18, 2004, no pet.) (mem. op.) (holding that the issue ofpossession was rendered moot because tenant vacated apartment, but considering issues unrelated to possession).Close At least one court of appeals has concluded that a tenant’s appeal is not moot even though the tenant vacated the premises.
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Coughran v. Saddle Brook Apartments, No. 10-01-275-CV, 2004 WL 307844 (Tex. App.—Waco, Feb. 18,2004, no pet.) (mem. op.) (holding that even though the tenant vacated the apartment, the appeal was not moot).Close
To the extent holdings in such cases conflict with this opinion, we disapprove of them.
III. Analysis
A. Failure to Post Supersedeas Bond
Marshall argues that her failure to post a supersedeas bond pursuant to Texas Property Code Section 24.007 does not prevent her from appealing the trial court’s judgment. Her argument anticipates the Housing Authority’s position that Marshall’s appeal must be dismissed because a supersedeas bond is required to perfect an appeal. See Reyes v. R.C. Mgmt., Inc., No. 04-01-00405-CV, 2001 WL 1479256, at *1 (Tex. App.—San Antonio, Nov. 21, 2001, pet. denied) (not designated for publication). We agree with Marshall.
The Texas Property Code provides that judgment in a forcible detainer action may not be stayed pending appeal unless the appellant timely files a supersedeas bond in the amount set by the trial court. Tex. Prop. Code § 24.007. Thus, if a proper supersedeas bond is not filed, the judgment may be enforced, including issuance of a writ of possession evicting the tenant from the premises. However, there is no language in the statute which purports to either impair the appellate rights of a tenant or require a bond be posted to perfect an appeal. See id. Marshall’s failure to supersede the judgment did not divest her of her right to appeal. See Tex. R. Civ. P. 621, 627; Tex. R. App. P. 24, 25.
B. Mootness
Marshall argues that because she timely indicated her intent to appeal the trial court’s judgment and because she vacated involuntarily to avoid execution of a writ of possession, her relinquishing possession of the apartment should not moot her appeal. The Housing Authority, however, urges that because the record does not include evidence supporting Marshall’s assertion that she vacated the apartment involuntarily, her appeal was rendered moot when she vacated. Again, we agree with Marshall.
Usually, when a judgment debtor voluntarily satisfies the judgment, the case becomes moot and the debtor waives any right to appeal. See Riner v. Briargrove Park Prop. Owners Inc., 858 S.W.2d 370, 370 (Tex. 1993) (citing Highland Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982)). The rule is intended to prevent a party who voluntarily satisfies a judgment from later changing his or her mind and appealing. Highland Church of Christ, 640 S.W.2d at 236 (holding that parties should not be allowed to mislead their opponent into believing that the controversy is over and then contest the payment and seek recovery). We have held, however, that payment of a judgment will not moot an appeal from that judgment if the judgment debtor timely and clearly expresses an intent to exercise the right of appeal and if appellate relief is not futile. See Miga v. Jensen, 96 S.W.3d 207, 212 (Tex. 2002).
Marshall timely filed a motion seeking suspension of enforcement of the judgment or, in the alternative, setting of a supersedeas bond. Her motion set out her intent to appeal. She timely filed notice of appeal before she vacated her apartment. In light of her timely and clear expression of intent to appeal, Marshall’s action in giving up possession did not moot her appeal so long as appellate relief was not futile; that is, so long as she held and asserted a potentially meritorious claim of right to current, actual possession of the apartment. But, her lease expired on January 31, 2003, and she presents no basis for claiming a right to possession after that date. Thus, there was no live controversy between the parties as to the right of current possession after January 31, 2003, and the issue of possession was moot as of that date. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (holding that a case becomes moot if a controversy ceases to exist between the parties at any stage of the proceedings).
Persevering, and recognizing the possibility that the possession issue might be moot, Marshall asserts that even if the possession issue is moot, there are three reasons why the merits of her appeal should be determined.
1. Monetary Damages
Marshall argues that her case is not moot because if successful on the merits she will be able to recover, in this action, the fair market value of her leasehold interest for the time between the date she vacated the apartment and the date her lease expired. We disagree.
An action for forcible detainer is intended to be a speedy, simple, and inexpensive means to obtain immediate possession of property. See Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936). Judgment of possession in a forcible detainer action is not intended to be a final determination of whether the eviction is wrongful; rather, it is a determination of the right to immediate possession. See Tex. Prop. Code § 24.008 (providing that a suit for forcible detainer “does not bar a suit for trespass, damages, waste, rent, or mesne profit”).
Marshall, nevertheless, argues that recovery of the fair market value of her lost leasehold interest in this forcible detainer action is authorized by section 34.022 of the Texas Civil Practice and Remedies Code and by Texas Rule of Civil Procedure 752. See Tex. Civ. Prac. & Rem. Code § 34.022 (authorizing recovery of the market value of the person’s property that has been seized through execution of a writ issued by a court if the judgment on which execution is issued is reversed or set aside but the property has been sold at execution); Tex. R. Civ. P. 752 (authorizing a prevailing party in a forcible detainer action to recover “damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal” from justice court to county court). Neither of these provisions, however, authorize the type of damages that Marshall seeks. Her property was not sold at execution, and the damages she seeks did not arise until after her county court appeal was complete. See Tex. Civ. Prac. & Rem. Code § 34.022; Tex. R. Civ. P. 752. Thus, even if her appeal were to be heard and found to have merit, Marshall would not be authorized to recover damages in the forcible detainer suit on the bases she references.
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Marshall does not assert that she is entitled to recover the fair market value of her leasehold interest underTexas Rule of Civil Procedure 748, which is titled “Judgment and Writ.” Rule 748 requires a justice court to givejudgment for costs and damages to the prevailing party in a suit for forcible entry and detainer. Tex. R. Civ. P. 748. Because Marshall does not seek damages under this provision, we need not decide whether it would authorize recoveryof the leasehold’s value.Close Consequently, the damage claims do not present a controversy preventing dismissal of the forcible detainer case as moot.
2. “Collateral Consequences” Exception
We next consider Marshall’s position that even if a live controversy does not exist, her appeal falls within the “collateral consequences” exception to the requirement that cases without live controversies are to be dismissed as moot. She argues that a favorable appellate ruling reversing the trial court’s judgment would ameliorate collateral consequences to her resulting from the judgment. See State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980) (applying the collateral consequences exception to the mootness doctrine in a case involving involuntary commitment to a mental hospital); Carrillo v. State, 480 S.W.2d 612, 616-17 (Tex. 1972) (applying the collateral consequences exception to the mootness doctrine in a case involving a minor’s adjudication as a juvenile delinquent). Marshall submits that the judgment for eviction caused loss of her federal rent subsidy and that loss of the subsidy might last for up to five years. See 24 C.F.R. §§ 982.552(b)(2) (2006) (providing that certain federal housing assistance must be terminated if a family is evicted for a serious violation of the lease); (c)(1)(ii) (providing that assistance may be denied if any member of the family has been evicted from federally assisted housing in the last five years). She also asserts that the judgment has adverse practical collateral consequences, including the possibility that landlords may be dissuaded from renting an apartment to her.
One purpose of vacating the underlying judgment if a case becomes moot during appeal is to prevent prejudice to the rights of parties when appellate review of a judgment on its merits is precluded. See Danciger Oil & Ref. Co. v. R.R. Comm’n, 56 S.W.2d 1075, 1076 (Tex. 1933); see also U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 22-25 (1994) (noting that one purpose of vacating the underlying judgment if a matter becomes moot during appeal is to prevent prejudice to the rights of parties when appellate review of a judgment on its merits is prevented by some reason other than voluntary action of the parties). Once the judgment is vacated and the case dismissed, the collateral consequences of the judgment are ordinarily negated to the same extent as if the judgment were reversed on the basis of any other procedural error. See Employees Fin. Co. v. Lathram, 369 S.W.2d 927, 930 (Tex. 1963). The collateral consequences exception to the mootness doctrine is invoked only under narrow circumstances when vacating the underlying judgment will not cure the adverse consequences suffered by the party seeking to appeal that judgment. See Lodge, 608 S.W.2d at 912; Carrillo, 480 S.W.2d at 617. Such narrow circumstances exist when, as a result of the judgment’s entry, (1) concrete disadvantages or disabilities have in fact occurred, are imminently threatened to occur, or are imposed as a matter of law; and (2) the concrete disadvantages and disabilities will persist even after the judgment is vacated. See Spencer v. Kemna, 523 U.S. 1, 8 (1998); see also Gen. Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990) (noting that the collateral consequences exception is invoked only when prejudicial events have occurred whose effects will continue to stigmatize after dismissal of the case as moot).
In order to invoke the collateral consequences exception, then, Marshall must show both that a concrete disadvantage resulted from the judgment and that the disadvantage will persist even if the judgment is vacated and the case dismissed as moot. See Spencer, 523 U.S. at 8; Gen. Land Office, 789 S.W.2d at 571. She does not do so. The record contains neither evidence nor an attempt to provide evidence
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Marshall neither contended nor offered evidence in the trial court that collateral consequences would resultif a judgment allowing eviction were entered. The first time she asserted that collateral consequences would result fromthe judgment was in the court of appeals. She sought no evidentiary hearing while her case was on appeal. See Tex. R.App. P. 10.1 (providing that a party can make motions for an order or other relief in the appellate courts).Close that Marshall’s federal rent subsidy will be denied in the future if the trial court’s judgment is vacated. As to the “practical” consequences Marshall complains of, she specifically identifies only one: future landlords may be dissuaded from renting an apartment to her. Again, however, the record contains neither evidence nor an attempt to provide evidence supporting her assertion that this practical consequence will persist even if the judgment is vacated. And, we do not consider factual assertions that appear solely in briefs and are not supported by the record. See Tex. R. App. P. 55.2(g), (i) (requiring petitioner’s statement of facts and argument to be supported by appropriate references to the record); Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998).
Under this record we decline to hold that the fact a judgment allowing eviction was entered will cause such continuing concrete disadvantages as warrant expansion of the collateral consequences exception, even after the judgment has been vacated for mootness. See Spencer, 523 U.S. at 8; Gen. Land Office, 789 S.W.2d at 571.
3. Court Costs and Post-Judgment Interest
Last, we address Marshall’s argument that because the trial court’s judgment held her liable for court costs incurred by the Housing Authority and for post-judgment interest, her contest of liability for costs constitutes a live controversy. In response, the Housing Authority asserts that the costs awarded were for a nominal amount, and therefore, the doctrine of de minimus non curat lex or “the law does not care for trifling matters” should be applied to prevent consideration of the case on appeal. See, e.g., Yates Ford, Inc. v. Ramirez, 692 S.W.2d 51, 55 (Tex. 1985) (applying the de minimis doctrine to overcharges in a consumer credit case).
We agree with Marshall that in some instances a case is not moot even though the only issue presented relates to court costs. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-43 (Tex. 2005); see also Furr’s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 378 (Tex. 2001). If the trial court’s judgment is vacated as a result of the case being moot, however, either there will be no order assessing costs and each party will be required to pay its own costs under Texas Rule of Civil Procedure 127, or the appellate court will tax costs. Moreover, we conclude that the Housing Authority’s seeking dismissal of the case because it is otherwise moot and concurrently asserting that the costs awarded by the trial court are de minimus constitute good cause for the Housing Authority to be responsible for its own trial court costs. See Tex. R. App. P. 60.4 (stating that the Court may, for good cause, tax costs other than as provided by rule). We do not consider the issue of the Housing Authority’s costs and post-judgment interest on those costs to present a controversy preventing dismissal of the case for mootness.
IV. Conclusion
Marshall’s case is moot as to the issue of possession and no exception applies to warrant consideration of the appeal on its merits except the issue of costs. We tax costs to the party by whom incurred, vacate the court of appeals’ judgment and opinion, vacate the trial court’s judgment, and dismiss the case as moot.

________________________________________
Phil Johnson
Justice

OPINION DELIVERED: March 3, 2006

Section 8

Do not delay teaching this tidbit of intel to your juveniles.........................................