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Filed 09 October 20 P5:59 Gary Fitzsimmons District Clerk Dallas District

NO. DF-09-1074 IN THE MATTER OF THE MARRIAGE OF J.B. AND H.B. IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS 302ND JUDICIAL DISTRICT

RESPONSE OF THE STATE OF TEXAS AS INTERVENOR TO J.B.S REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW Petitioners request for findings of fact and conclusions of law from this Court is extraordinary and irregular on several levelsnone of which are mentioned in his request. Because this case is now on interlocutory appeal before the Fifth Court of Appeals, the State of Texas has no position on Petitioners request. The State files this response only to help identify and disclose various procedural defects that prevent this Court from issuing findings and conclusions. I. All Proceedings In This Court Have Been Automatically Stayed Pending Appeal. To begin with, all proceedings in this Court in this matter were automatically stayed by operation of Texas law when the State filed its notice of appeal on October 2, 2009. Texas law expressly provides for a special statutory right to interlocutory appeal whenever any district court grants or denies a plea to the jurisdiction by a governmental unit. T EX. C IV. P RAC. & R EM. C ODE 51.014(a)(8). And when a governmental unit invokes this particular right, the appeal not only automatically stays the commencement of a trial in the trial court pending resolution of the appeal, but also all other proceedings in the trial court pending resolution of that appeal. Id . 51.014(b) (emphasis added). (The filing of

a notice of appeal by the State of Texas also automatically supersedes and stays the order itself. See id . 6.001; Tex. R. App. P. 25.1(g)(2), 29.1(b); Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 485 (Tex. 1964) (the States notice of appeal operates as a supersedeas).) Granting Petitioners request would seem to violate the express terms of the statutory stay. Petitioner asks this Court to set a briefing schedule for proposed findings of fact and conclusions of law, to accept written submissions from each party regarding proposed findings, and to hold a hearing to consider proposed findings and objections. By any definition, these would appear to be proceedings barred by the express terms of the statutory stay. Cf. Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 868 (Tex. App.Houston [14th Dist.] 1997) (noting that the plain meaning of proceeding is very broad and may include all matters that occur in [a suits] progress judicially) (citations omitted). II. Findings of Fact and Conclusions of Law Are Unnecessary To Facilitate The States Appeal And Procedurally Improper In Any Event. A. In addition to being barred by the stay, Petitioners request for findings of fact

and conclusions of law seems particularly odd in that it comes from the party that prevailed in the district court. After all, it is typically the losing party that determines whether or not any findings of fact, and accompanying conclusions of law, are necessary to facilitate appeal of its loss. See, e.g., Russell H. McMains, Strategic Findings of Fact and Conclusions of Law , University of Texas School of Law 16th Annual Conference on State and Federal Appeals,

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June 1-2, 2006, at 2, available at http://www.tex-app.org/articles/StrategicFindings.pdf ([A]s a practical matter, only the losing party or parties [request findings of fact and conclusions of law]. This is because a judgment rendered without findings of fact and conclusions of law provides the broadest possible basis to support a judgment on appeal.). That is not the case here. It is the prevailing party that is requesting findings of fact and conclusions of law. And whats more, the prevailing party is requesting findings and conclusions despite the fact that there are notand never have beenany factual disputes in this case. Cf. IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (findings of fact . . . have no place in a summary judgment proceeding because, for summary judgment to be rendered, there cannot be a genuine issue as to any material fact) (quotations omitted). The State of Texas has never disputed the central facts in the casesuch as the parties marriage under Massachusetts law, their subsequent change of residence to the State of Texas, and their current desire to terminate their Massachusetts marriage. There are thus no conclusions of law to draw from any factual determinations. Indeed, because the States plea to the jurisdiction did not challenge jurisdictional facts, all facts in Petitioners pleadings must be taken as truethereby rendering any findings of fact entirely superfluous. See, e.g., Tex. Dept of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). B. Moreover, not only are findings of fact and conclusions of law unnecessary to

the interlocutory appeal, the Texas Supreme Court has made clear that findings of fact and conclusions of law would be improper and not permitted in this context.
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In IKB Industries, the Supreme Court held that findings and conclusions can have no purpose and should not be requested, made, or considered on appeal, in any situation where there is no evidentiary dispute and where judgment [is] rendered as a matter of law. 938 S.W.2d at 443. [A] party is not entitled to findings and conclusions . . . [where] judgment must be rendered as a matter of law. Id. at 442. IKB involved the entry of a summary judgment. But the Court ruled more broadly, expressly mentioning a number of other procedural settings where findings and conclusions likewise should not be enteredincluding dismissal for want of jurisdiction without an evidentiary hearing as well as any other judgment rendered without an evidentiary hearingand there is no reason in logic or law why a denial of a plea to the jurisdiction should be treated any differently. Id. at 443. In any of these situations, [t]he trial court should not make, and an appellate court cannot consider, findings of fact. Id. at 441. See also id. at 441-42 (a request for findings and conclusions following summary judgment can have no purpose, should not be filed, and if filed, should be ignored by the trial court) (emphasis added); In re Estate of Bendtsen , No. 05-08-00122-CV, 2008 WL 1886778 at *1 (Tex. App.Dallas Apr. 30, 2008, no pet.) (mem. op.) (A request for findings of fact and conclusions of law is not proper when a ruling is made from a non-evidentiary hearing.). It is not surprising, then, in light of these express statements in IKB , that Texas courts have faithfully and consistently invoked the Courts ban on findings of fact and conclusions of law within the specific context of pleas to the jurisdiction especially in cases where no evidentiary dispute exists and no evidentiary hearing has been held. See, e.g., Awde v.
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Dabeit, 938 S.W.2d 31, 33 (Tex. 1997) (In this case, the county court dismissed the case without jurisdiction based on the pleadings and arguments of counsel rather than on sworn testimony, so findings and conclusions as to the courts jurisdiction would not serve any purpose in the court of appeals.); Ford ex rel. Williams v. City of Lubbock , 76 S.W. 3d 795, 797 (Tex. App.Amarillo 2002, no pet.) (because plea to the jurisdiction was decided as a matter of law without an evidentiary hearing . . . we do not believe that findings of fact and conclusions of law serve a purpose in this matter); Haddix v. Am. Zurich Ins. Co., 253 S.W.3d 339, 346 (Tex. App.Eastland 2008, no pet.) ([T]here was no disputed fact issue for resolution [of plea to the jurisdiction], and findings of fact would have served no useful purpose.); Warren v. City of Aransas Pass, No. 13-07-087-CV, 2008 WL 4889834, at *5 (Tex. App.Corpus Christi 2008, no pet.) (mem. opp.) (In fact, the trial court was not required to file findings of fact and conclusions of law with respect to the plea to the jurisdiction or to the summary judgment because these motions could only be granted if no fact issue existed.). See also City of Fort Worth v. Shilling , 266 S.W.3d 97, 100 n.1 (Tex. App.Fort Worth 2008, pet. denied) (when a plea to the jurisdiction is denied following an evidentiary hearing , findings of fact and conclusions of law, while potentially helpful, are not required and are not binding on an appellate court). *** Petitioner mentions none of thisnot the automatic statutory stay of all proceedings in this Court; not the lack of any need for findings of fact in the absence of a evidentiary dispute or hearing; not the impropriety of findings and conclusions under IKB .
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For his part, Petitioner cites only Rule 28.1(c) of the Texas Rules of Appellate Procedure. But that rule simply states the generic proposition that trial courts may enter findings of fact and conclusions of law within thirty days of an order subject to interlocutory appeal. The rule does not address any of the specific concerns heresuch as the statutory stay of all trial court proceedings that uniquely attaches when a party appeals the denial of a plea to the jurisdiction by a governmental unit, as well as Texas Supreme Court precedent confirming the impropriety of findings of fact and accompanying conclusions of law when a district court enters a jurisdictional ruling purely as a matter of law and without any evidentiary dispute or hearing. CONCLUSION As noted, this case is now on interlocutory appeal before the Fifth Court of Appeals. Accordingly, the State of Texas has no position on Petitioners request for additional proceedings from this Court. The State simply wishes to disclose that Petitioners request for findings of fact and conclusions of law is inappropriate, for the reasons stated above. All proceedings in this Court have been stayed pending the interlocutory appeal, and moreover, findings of fact and conclusions of law are unnecessary to the appeal and procedurally improper in any event.

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Respectfully submitted, GREG ABBOTT Attorney General of Texas C. ANDREW WEBER First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Civil Litigation

______/s/______________________ JAMES C. HO Solicitor General State Bar No. 24052766 JAMES D. BLACKLOCK Assistant Solicitor General State Bar No. 24050296 REED N. SMITH Assistant Attorney General State Bar No. 24067875 O FFICE OF THE A TTORNEY G ENERAL P.O. Box 12548 Austin, Texas 78711-2548 [Tel.] (512) 936-1700 [Fax] (512) 474-2697 C OUNSEL FOR THE S TATE OF T EXAS

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C ERTIFICATE OF S ERVICE I certify that I served a true and correct copy of the foregoing to the following persons on October 21, 2009: Peter A. Schulte S CHULTE & A PGAR, PLLC 4131 N. Central Expressway Suite 680 Dallas, Texas 75204 James J. Scheske A KIN G UMP S TRAUSS H AUER & F ELD LLP 300 West 6th Street Suite 2100 Austin, Texas 78701-3911 J. Carl Cecere A KIN G UMP S TRAUSS H AUER & F ELD LLP 1700 Pacific Avenue Suite 4100 Dallas, Texas 75201-4675 Attorneys for Petitioner H.B. Respondent [address on file]

/s/ James C. Ho

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