Eustorgio Guzman Resendez and Ovidio Garcia, Jr. v. Juan J. Garcia and Heriberto Silva--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

No. 04-05-00081-CV

Eustorgio Guzman RESENDEZ, and Ovidio Garcia, Jr.

Appellants

v.

Juan J. GARCIA, and Heriberto Silva,

Appellees

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. DC-02-268

Honorable Robert C. Pate, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 19, 2005

REVERSED AND REMANDED

Appellants are inmates, who were convicted of the murder of four individuals. Appellants filed a petition for declaratory judgment, asking the trial court to determine their rights under Texas Code of Criminal Procedure chapter 49, which is entitled Inquests Upon Dead Bodies. Prior to filing their suit, appellants had requested that the bodies of the four murder victims be exhumed for the purpose of identification and determining cause of death. The appellees, Juan J. Garcia, a Starr County Justice of the Peace, and Heriberto Silva, the Starr County District Attorney, refused the request. After suit was filed, appellees moved to dismiss the lawsuit as having no arguable basis in law or fact and on the grounds that the court had no jurisdiction to order the removal of the remains. Following a hearing held on the motion, the trial court dismissed the suit. This appeal ensued. We reverse and remand.

FINDINGS OF FACT

In their first issue, appellants assert the trial court erred in refusing to file findings of fact and conclusions of law. In its order denying the request for findings, the trial court stated it had previously made a finding that this litigation is frivolous among other findings. There are no further factual findings to be made. We construe appellants argument on appeal to be that additional findings were necessary.

To obtain a reversal, an appellant must show from the record that the trial court s refusal to file additional findings of fact and conclusions of law as requested was reasonably calculated to cause and did cause rendition of an improper judgment. Doncaster v. Hernaiz, 161 S.W.3d 594, 608 (Tex. App. San Antonio 2005, no pet.). If the trial court s refusal to make additional findings does not prevent an adequate presentation on appeal, there is no reversible error. Id. The issue is whether the circumstances are such that the appellant is forced to guess at the reasons for the trial court s decision. Id. Here, appellants are not forced to guess at the basis for the trial court s dismissal of their suit. The court dismissed their suit based on specific findings that the suit lacked a basis in law and fact and because the court determined it lacked jurisdiction to grant the requested relief. Thus, while we do not agree the trial court erred in refusing to make findings, any error was nevertheless harmless.

DISMISSAL OF SUIT

According to appellants, the appellees are disputing their duties concerning the disinterrment [sic] of the relevant bodies for inquest/investigation purpose and a declaratory judgment will terminate uncertainty or controversy. In their second issue, appellants assert the trial court erred in determining it was without jurisdiction because a district court has the power to declare a party s rights, status and other legal relations. In their remaining issues, appellants argue that their suit was not frivolous because their action is not moot, not barred by the principles of res judicata or collateral estoppel, by their lack of standing or by a failure to join a necessary party.

One of the grounds on which appellees moved to dismiss the suit was that Texas Health and Safety Code section 711.04 governs the removal of remains and the district court had no jurisdiction over the removal of such remains. In its order, the trial court specifically found that it had no jurisdiction in the removal of the human remains since such is governed by 711.004 of the Health & Safety Code.

Section 711.004 provides that, under certain circumstances, remains may be removed by permission of the county court of the county in which the cemetery is located. Tex. Health & Safety Code Ann. 711.004(c) (Vernon Supp. 2005). Appellees alleged the remains were buried in Hildago County; therefore, the Starr County district court lacked jurisdiction. However, section 711.004(c) does not apply to the removal of remains . . . on the order of a court or person who conducts inquests. Id. 711.004(e)(3). Here, appellants sought exhumation pursuant to Texas Code of Criminal Procedure article 49, which provides for the removal of remains by a court or person who conducts inquests.

Under article 49, a justice of the peace has the power to conduct an inquest into the death of a person under suspicious circumstances in his county. See Tex. Code Crim. Proc. Ann. art. 49.04 (Vernon Supp. 2005). A justice of the peace may reopen an inquest if he or she determines that reopening the inquest will reveal a different cause or different circumstance of death. Id. at art. 49.041. If an interested party is dissatisfied with the conclusions reached by the justice of the peace following the initial autopsy, that party may apply for an order to have the body of the deceased exhumed and re-examined. Mestiza v. De Leon, 8 S.W.3d 770, 772 (Tex. App. Corpus Christi 1999, no pet.). Appellants made such a request, which was denied by the Starr County justice of the peace and district attorney. Appellees asserted at the hearing on the motion to dismiss that all the bodies were from Hildago County and all of them were subject to be buried in Hildago County ; however, appellees presented no evidence refuting that the deaths under suspicious circumstances did not occur in Starr County or that the initial autopsy was not conducted in Starr County. Although appellants allegations may not be sufficient to cause the Starr County justice of the peace to reopen an inquest and exhume the bodies, the district court had the jurisdiction to determine the rights, status, or other legal relations of the parties under article 49. See Tex. Civ. Prac. & Rem. Code Ann. 37.002(b), 37.004(a) (Vernon 1997). Therefore, the trial court erred in dismissing appellants lawsuit for lack of jurisdiction.

Also, appellants suit had an arguable basis in law or in fact under article 49. A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory. See Thompson v. West, 804 S.W.2d 575, 577 (Tex. App. Houston [14th Dist.] 1991, writ denied).

In their motion to dismiss, appellees alleged that appellants convictions had been affirmed. While this may be true, appellants have a personal interest in the identity of the bodies and the cause of the deaths. See Mestiza, 8 S.W.3d at 773. Appellants may still be entitled to habeas corpus relief if they can prove by clear and convincing evidence that a jury would acquit either or both of them on newly discovered evidence. Id. While we do not pretend to evaluate the proof necessary for such relief, we nevertheless conclude that [appellants ] interest in developing such evidence is sufficient to confer standing upon [them] to request a reopening of the inquests and exhumation of the bod[ies] of the victim[s]. Id.

Further, res judicata and collateral estoppel are affirmative defenses under Texas Rule of Civil Procedure 94 and should be treated as a plea in bar, rather than as a plea in abatement or a plea to the jurisdiction. Id. A plea in bar may not properly be sustained at a preliminary hearing unless the parties agree to this procedure or summary judgment procedure is utilized. Id. Here, appellants did not agree to the summary disposition of these defenses, nor was summary judgment evidence presented or summary judgment procedure followed. In addition, the present action to exhume the victims bodies is for informational purposes that might lead to a valid habeas corpus proceeding based on newly discovered evidence and thus is not precluded by the existence of the final judgment of conviction. Id. at 774.

Finally, relying on Health and Safety Code section 711.004(a), appellees alleged appellants had not obtained consent from the necessary parties for the removal of the remains. However, section 711.004(a) does not apply to the removal of remains . . . on the order of a court or person who conducts inquests. Tex. Health & Safety Code Ann. 711.004(e)(3). Also, [w]e need not determine whether family members of the deceased [or any other party] are indispensable parties to this type of proceeding. Even if they are, [appellees] failed to point to any specific, surviving family member [or other party] that should have been joined. Id. Assuming a necessary party exists, the trial court erred in summarily dismissing the lawsuit without giving appellants an adequate opportunity to join that party. Id.

CONCLUSION

We reverse the trial court s judgment and remand for further proceedings. //

Sandee Bryan Marion, Justice