in Re Travelers Lloyds Insurance Company ( 2001 )

In re Travelers

  IN THE

TENTH COURT OF APPEALS

No. 10-01-360-CV

IN RE TRAVELERS LLOYDS INSURANCE COMPANY

Original Proceeding

                                                                                                               Â

DISSENTING OPINION

                                                                                                               Â

      My colleagues focus on only one aspect of this mandamus. They essentially ignore the prospect of having to waive the attorney client privilege or waive the use of evidence critical for its defense. In this petition for writ of mandamus, Travelers has argued that if it is put to trial on the extra-contractual issues that it will be forced to make a choice. Travelers must either choose to waive the attorney client privilege that exist with regard to communications with its coverage attorney, or assert the privilege and forego the use of the very evidence that will explain to the jury the actions for which it is being sued. Where the law will allow, litigants should not be forced to such a choice.

      The fact that there may be “little likelihood” that the contractual issues will lead to a factual dispute, because “it appears” the damages are liquidated, are of no comfort to a litigant which may have to choose between waiving one of the most fundamental rights of our legal system—the attorney client privilege—or availing itself of all available evidence to defend itself. I have not concluded that I would grant the petition, but I do believe that this petition presents substantive issues not resolved by Liberty National and would request a response before taking any action on the petition. See Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996). Accordingly, I would stay discovery on the extra-contractual issues until the petition is decided.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed November 1, 2001

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No. 10-04-00110-CV

 

In the Interest of B.R.S. and A.N.S.,

Children

 

 

From the 378th District Court

Ellis County, Texas

Trial Court No. 62,686

 

O p i n i o n

 

Lewis Seward and Carol Seward (Grandparents) sought to modify the parent-child relationship to seek court-ordered access to B.R.S. and A.N.S. Their November 2005 petition was opposed by both their son Jacob Seward and their former daughter-in-law Deanna Seward, who had divorced in October of 2002.

Without hearing evidence on the merits of the Grandparents’ claim, the trial court found the grandparent visitation statute, sections 153.432 and 153.433 of the Family Code, unconstitutional and dismissed the claim. Tex. Fam. Code Ann. §§ 153.432, 153.433 (Vernon 2002).  The Grandparents appeal.

The sole issue before us is whether the statute is facially unconstitutional under Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).  We review the trial court’s finding under an abuse of discretion standard.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

In 2001, the Austin Court of Appeals held that the statute is not unconstitutional on its face.  Lilley v. Lilley, 43 S.W.3d 703, 712 (Tex. App.—Austin 2001, no pet.).  Other courts of appeals have agreed with that holding.[1]  In re C.P.J., 129 S.W.3d 573, 578 (Tex. App.—Dallas 2003, pet. denied); In re Pensom, 126 S.W.3d 251, 254 (Tex. App.—San Antonio 2003, no pet.).

We join those courts in holding that the grandparent access statute is not unconstitutional on its face.  Tex. Fam. Code Ann. §§ 153.432, 153.433. Thus, we hold the trial court abused its discretion in dismissing the claim by the Grandparents.  See Gillespie, 644 S.W.2d at 451; Lilley, 43 S.W.3d at 712.  We reverse the trial court’s dismissal order and remand the cause for further proceedings under the statute.

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed May 25, 2005

[CV06]

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    [1]       We cite these cases only for the holding of facial constitutionality, not for their discussions of how the statute is to be applied.