Lewis v. Atty Gen State of TX

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-21001
Summary Calendar
KELLY LEWIS, JR.,
Plaintiff-Appellant,
versus
THE ATTORNEY GENERAL OF THE STATE OF TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-586
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kelly Lewis, Jr., appeals from the district court’s grant
of summary judgment in favor of the Texas Attorney General (AG).
Lewis had filed a 42 U.S.C. § 1983 civil rights complaint seeking
declaratory and injunctive relief. Lewis argues that the Texas
statutory scheme for collecting child support arrearages violates
his procedural due process rights. We review the district court’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-21001
-2-
order granting summary judgment de novo. Melton v. Teachers Ins.
& Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir. 1997).
Lewis contends that the Texas statutory scheme is
unconstitutionally vague. Lewis abandoned the issue when he did
not renew it in his amended complaint. See Boelens v. Redman
Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985). He may not
raise the issue for the first time on appeal. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
Lewis also argues that the AG induced him into an illusory
agreement which failed to impose a mutual obligation on the AG.
Lewis’s reliance on contract principles is misplaced. There is no
language in the statute to indicate that a contractual obligation
was created by the child support review orders. Rather, the Texas
Family Code provides that the child support review orders
constitute enforceable court orders. TEX. FAM. CODE ANN. §
233.001(b)(Vernon 2002). Lewis also argues that the AG failed to
inform him that he was not required to sign the child support
review orders, that he was entitled to a hearing, and that other
alternatives existed to signing the orders. Lewis’s argument is
unavailing in light of the statutory warnings provided in the child
support review orders and corresponding waiver forms which he
signed. See TEX. FAM. CODE ANN. § 233.018.
Finally, Lewis argues that he was deprived of his property
without due process because the notice given by the state was
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insufficient under Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950).
The Texas statutory scheme is comparable to postjudgment
garnishment proceedings. See Brown v. Liberty Loan Corp. of Duval,
539 F.2d 1355, 1357 (5th Cir. 1976). Similar to the enforcement of
an existing judgment, the child support review orders were a court-
ordered collection of arrearages on existing child support orders.
See id. at 1366. Thus, Mullane is inapposite, where as here, Lewis
had prior notice via an existing court order that he was obliged to
pay child support payments. Cf., Mullane, 339 U.S. at 309, 319
(publication in newspaper as the sole form of notice of levy on
trust account inadequate notice). Moreover, the Texas Family Code
contains various comprehensive mechanisms whereby Lewis can avoid
execution on the levy. TEX. FAM. CODE ANN. § 157.328 (Vernon 2002);
see Brown, 539 F.2d at 1365. Lewis has not shown any error by the
district court. Accordingly, the judgment of the district court is
AFFIRMED.