McLendon v. Texas Dept. of Public Safety

• Decision Date: 31 December 1998
• Docket Number: No. 10-97-367-CV,10-97-367-CV
• Citation: 985 S.W.2d 571
• Parties: Noel Allen McLENDON, Jr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Texas Court of Appeals

Page 571

985 S.W.2d 571

Noel Allen McLENDON, Jr., Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 10-97-367-CV

Court of Appeals of Texas Waco.

Dec. 31, 1998.

David R. Sweat, Sweat & Cochran, L.L.P., Arlington, for appellant.

John C. West, Jr., Chief of Legal Services, Valerie Fulmer, Senior Assistant General Counsel, Rebecca Blewett, Hearing Attorney, Tim Curry, Criminal District Attorney, Phyllis Cranz, Assistant District Attorney by Deputization, Fort Worth, for appellee.

Before Chief Justice DAVIS, Justice CUMMINGS and Justice VANCE.

OPINION

REX D. DAVIS, Chief Justice.

Noel Allen McLendon, Jr. appeals the determination of the court below that he is ineligible for a concealed handgun license because he pleaded guilty to a felony offense and was placed on probation, even though he was subsequently discharged from the probation and the charges were dismissed. McLendon asserts in two points: (1) his prior felony probation does not disqualify him from receiving a handgun license because that charge was dismissed; and (2) the Department of Public Safety ("DPS") failed to prove by a preponderance of evidence that he was previously convicted of a felony.

FACTUAL BACKGROUND

A person named Noel Allen McLendon, Jr. pleaded guilty to a felony theft charge in Taylor County in 1969. The Taylor County district court placed the defendant on felony probation for a period of five years. On the defendant's motion, the court set aside the conviction and dismissed the indictment in 1974 pursuant to the provisions of the probation statute then in effect. See Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, art. 42.12, § 7, 1965 Tex. Gen. Laws 317, 492 (amended 1983) (current version at TEX.CODE CRIM. PROC. ANN. art. 42.12, § 20 (Vernon Supp.1999)) (hereinafter, "TEX.CODE CRIM. PROC. ANN. art. 42.12, § 7"). ¹

On October 24, 1996, DPS denied McLendon's application for a handgun license. DPS denied the application because it determined he is the same person who had pleaded guilty to the felony offense discussed above. McLendon appealed the denial before a justice of the peace who determined the prior felony probation does not disqualify him from receiving a handgun license. DPS appealed to the county court at law which affirmed DPS's original determination that McLendon is not qualified for a license.

ARTICLE 4413(29ee)

The former article 4413(29ee) governs McLendon's application. See Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex. Gen. Laws 1998, 1998-2013 (repealed 1997) (current version at TEX. GOV'T CODE ANN. §§ 411.171-411.208 (Vernon 1998)) (hereinafter "TEX.REV.CIV. STAT. ANN. art. 4413(29ee)"). ² Under the terms of section 2(a)(3) of article 4413(29ee), a person is not eligible for a handgun license if he has been convicted of a felony. TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 2(a)(3). Article 4413(29ee) defines the term "convicted" as follows:

"Convicted" means an adjudication of guilt or an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not:

(A) the imposition of the sentence is subsequently probated and the person is discharged from community supervision; or

(B) the person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence.

TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 1(4).

JURISDICTION

Neither party questions our jurisdiction over this case. Nevertheless, we must always examine our jurisdiction, even if sua sponte. Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.--Dallas 1994, writ denied). The Texas Constitution gives this Court jurisdiction over "all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." TEX. CONST. art. V, § 6. In two statutes, the Legislature has provided that the jurisdiction of the intermediate appellate courts in civil cases is limited to causes where the amount in controversy exceeds $100. TEX. CIV. PRAC. & REM.CODE ANN. § 51.012 (Vernon 1997); TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 1988).

The Fort Worth Court of Appeals has determined that appellate courts have jurisdiction over handgun license appeals under the general jurisdiction of article V, section 6 because the Legislature has imposed "no restrictions or regulations on [such appeals]." Texas Dep't of Pub. Safety v. Tune, 977 S.W.2d 650, 652 (Tex.App.--Fort Worth 1998, pet. dism'd w.o.j.) (op. on reh'g). The San Antonio Court of Appeals has reached the opposite conclusion. See Texas Dep't of Pub. Safety v. Levinson, 981 S.W.2d 5, 8 (Tex.App.--San Antonio, 1998, pet. filed). In Levinson, the court determined that the statutes cited above apply to all civil appeals which "arise from the county courts acting in their appellate capacity." Id. Because the parties represented to the court that no amount in controversy existed in their case, the court concluded it had no jurisdiction to consider that handgun license appeal. Id., at 6-8.

Even if the San Antonio court is correct in its assertion that the limiting statutory provisions cited above apply in handgun license cases, we conclude that the amount in controversy requirement is satisfied in this case. The Supreme Court has defined the amount in controversy to include "the sum of money or the value of the thing originally sued for." Gulf, Col. & Santa Fe Ry. v. Cunnigan, 95 Tex. 439, 441, 67 S.W. 888, 890 (1902); accord Printing Ctr. of Tex., Inc. v. Supermind Pub. Co., 669 S.W.2d 779, 785 (Tex.App.--Houston [14th Dist.] 1984, no writ); Williams v. Le Garage De La Paix, Inc., 562 S.W.2d 534, 535 (Tex.Civ.App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.). Under DPS regulations, a license applicant must tender a $140 nonrefundable fee with his application. 37 TEX. ADMIN. CODE § 6.15(8) (1997). Thus, the value of a license exceeds $100, and we have jurisdiction over this appeal.

SUFFICIENCY OF EVIDENCE

Before we construe the pertinent provisions of article 4413(29ee), we will address McLendon's second point which challenges the sufficiency of the evidence to establish that he was previously convicted of a felony. He argues that the proof is lacking because DPS failed to offer a properly authenticated judgment in evidence and failed to prove that he is the same person whose guilty plea is reflected by the documents offered in evidence by DPS.

When DPS appealed the justice court's determination that McLendon is eligible for a license, it had the burden to prove by a preponderance of evidence that McLendon is not qualified for a handgun license (i.e., that he has been previously convicted of a felony). See TEX.REV.CIV. STAT. ANN. art. 4413(29ee), § 7(c), (e). At the hearing, DPS offered a certified copy of what appears to be an abstract of judgment which reflects that a person with McLendon's name pleaded guilty to felony theft and was placed on five years' probation. This document is not signed by the judge of the convicting court, nor does it have a line for the judge's signature. However, the document is properly self-authenticated by the certification of the District Clerk of Taylor County. See TEX.R. CIV. EVID. 902(1), (4), 46 Tex. B.J. 212-13 (Tex.1982, amended 1998). ³ McLendon objected to the document on the basis that it does not meet the requirements of a judgment in that it does not contain the judge's signature. See TEX.CODE CRIM. PROC. ANN. art. 42.01, § 1 (Vernon Supp.1999).

PROOF OF IDENTITY

McLendon argues that DPS offered no evidence that he is the person who pleaded guilty in the Taylor County case. Assuming without deciding that McLendon has properly preserved this issue for our review, we note the following excerpts contained in the record. ⁴ In McLendon's written pleading responsive to DPS's petition, he states, "[T]his record does not reflect that the respondent in this matter had an attorney to represent him in said felony cause[,]" and "The respondent takes the position that when the new trial is granted he was not convicted of any offense."

The reporter's record reflects the following comments of McLendon's counsel: "no place on that document is it reflected that my client even had an attorney at that particular proceeding"; "My client was granted a Motion for New Trial.... He has suffered no conviction"; "Whatever may have happened to him in Taylor County has been set aside by the Court's granting of a Motion for New Trial."

Factual allegations set forth in a party's live pleadings are considered judicial admissions. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex.1983); Huff v. Harrell, 941 S.W.2d 230, 235 (Tex.App.--Corpus Christi 1996, writ denied). Moreover, statements of counsel in a hearing can constitute judicial admissions. See Carroll Instr. Co. v. B.W.B. Controls, Inc., 677 S.W.2d 654, 659 (Tex.App.--Houston [1st Dist.] 1984, no writ) (counsel's statement constituted judicial admission); see also Int'l Piping Sys., Ltd. v. M.M. White & Assocs., Inc., 831 S.W.2d 444, 449 (Tex.App.--Houston [14th Dist.] 1992, writ denied) (party may not challenge sufficiency of evidence on issue which counsel informed the jury was not disputed). Judicial admissions conclusively establish the facts stated and thus relieve the opposing party of the necessity of proving the admitted facts. Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 884 (Tex.App.--San Antonio 1996, writ denied).

At the hearing, McLendon took the position that: (1) DPS did not offer a copy of the "judgment" reflecting his guilty plea in Taylor County (which we next address); (2) the records offered by DPS do not reflect that he had counsel representing him in the Taylor County proceedings; and (3) the Taylor County court's order setting aside his conviction and dismissing the indictment operated to set aside his conviction for purposes of the handgun statute. McLendon's...