in Re Kirson Barnes

NUMBER 13-13-00685-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE KIRSON BARNES
On appeal from the 24th District Court
of DeWitt County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
By four issues, which we treat as one, appellant Kirson Barnes asserts that the
trial court abused its discretion in denying his petition for a name change under the Texas
Family Code. See TEX. FAM. CODE ANN. § 45.102 (West, Westlaw through 2013 3d
C.S.). We affirm.
I. BACKGROUND
On October 21, 2013, Barnes filed a pro se petition for name change in the trial
court under section 45.102 of the Texas Family Code. See id. In his petition, Barnes
asserted the following facts: (1) he is currently incarcerated for a felony conviction at the
Texas Department of Criminal Justice—Institutional Division’s Stevenson Unit in Cuero,
Texas; (2) his date of birth is June 30, 1975; (3) he submitted the petition solely for
religious reasons in accord with his faith of Islam; and (4) he requested that his new name
be “Kirson Mujahid Sayf-Udiyn.” Barnes argued for the name change based upon his
First Amendment rights, the “sincerity of his faith,” and not to confuse his criminal record.
On November 15, 2013, without a hearing, the trial court denied Barnes’s petition
and cited section 45.103(a) of the Texas Family Code in support of its decision.1 This
appeal followed.
II. DISCUSSION
By four issues, which we treat as one issue with four arguments, Barnes asserts
that the trial court abused its discretion in denying his petition for name change.
A. Applicable Law and Standard of Review
Chapter 45, Subchapter B, of the Texas Family Code controls the change of an
adult’s name in Texas. See generally id. §§ 45.101–.106 (West, Westlaw through 2013
3d C.S.). An adult may file a petition requesting a change of name in the county of the
adult’s place of residence. Id. § 45.101.
1 This is implied from the trial court’s order denying Barnes’s petition. After the prayer paragraph
of Barnes’s petition for name change, the trial court circled “denied” and drew a line to a handwritten citation
to “Family Code § 45.103(a).” The trial court also signed and dated the denial.
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A petition to change an adult’s name must be verified and include the following
information: (1) the present name and place of residence of the petitioner; (2) the full
name requested for the petitioner; (3) the reason for the requested change in name; (4)
whether the petitioner has been the subject of a final felony conviction; (5) whether the
petitioner is subject to the registration requirements of Chapter 62 of the code of criminal
procedure; and (6) a legible and complete set of the petitioner’s fingerprints on a
fingerprint card format acceptable to the Department of Public Safety and the Federal
Bureau of Investigation. Id. § 45.102(a). Additionally, the petition must include each of
the following, or a reasonable explanation as to why the required information is not
included: (1) the petitioner’s full name, sex, race, date of birth, driver’s license number
for any driver’s license issued in the 10 years preceding the date of the petition, social
security number, and assigned FBI number, state identification number, if known, or any
other reference number in a criminal history record system that identifies petitioner; (2)
any offense above the grade of Class C misdemeanor for which the petitioner has been
charged; and (3) the case number and the court if a warrant was issued or a charging
instrument was filed or presented for an offense listed in subsection (2). Id. § 45.102(b).
A trial court shall order a change of name under Chapter 45, Subchapter B, if the
change is in the interest or to the benefit of the petitioner and in the interest of the public,
so long as the person does not have a final felony conviction or is not subject to the
registration requirements of Chapter 62 of the code of criminal procedure. Id. §
45.103(a). A trial court may order a name change for a person with a final felony
conviction, if the change is in the interest or benefit of the petitioner and in the interest of
the public, see id. § 45.103(a), and the person has received a certificate of discharge by
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the Texas Department of Criminal Justice or completed a period of community
supervision or juvenile probation order by a court and not less than two years have passed
from the date of the receipt of discharge or completion of community supervision or
juvenile probation, or the person has been pardoned. Id. § 45.103(b). Likewise, a court
may order a change of name for a person subject to the registration requirements of
Chapter 62 of the code of criminal procedure, if, in addition to meeting the requirements
of section 45.103(a), the person provides the trial court with proof that the person has
notified the appropriate local law enforcement authority of the proposed name change.
Id. § 45.103(c).
Whether a petition for name change is granted is a matter of judicial discretion.
In re Mayol, 137 S.W.3d 103, 105 (Tex. App.—Houston [1st Dist.] 2004, no pet.); In re
Erickson, 547 S.W.2d 357, 358 (Tex. App.—Houston [14th Dist.] 1977, no writ). The
test for an abuse of discretion is not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court’s action; rather, it is a question of
whether the court acted without reference to any guiding rules and principles. Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). The mere fact that
a trial judge may decide a matter within his discretionary authority in a different manner
than an appellate judge in a similar circumstance does not demonstrate that an abuse of
discretion has occurred. Id.
B. Discussion
On appeal, Barnes presents four issues for this Court’s review: (1) “[w]hether [the
trial court] failed to investigate . . . [or] acknowledge [Barnes’s] 1st [A]mendment right and
progress as [an] Imam, coordinator and teacher of the Islamic faith?”; (2) “[w]hether [the
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trial court] sees the expression presented in the identity of petitioner’s name change?”;
(3) “[w]hether the trial court understands the religious claim and rights upon petitioner?”;
and (4) “[w]hether [the trial court] acknowledges the history of name changing by force
during slavery?” Despite presenting these four issues in his appellate brief, Barnes
reasserts on appeal the same arguments made to the trial court in his petition for name
change. Accordingly, we will analyze these arguments in turn.
First, Barnes argues that his name change should be permitted pursuant to his
First Amendment rights under the United States Constitution. See U.S. CONST. amend. I.
In support, Barnes cites to three federal decisions, which we find distinguishable and
inapplicable. In two cases cited by Barnes, the petitioner successfully changed his
name, according to the laws of his respective state, prior to asserting the petitioner’s First
Amendment rights. See Hakim v. Hicks, 223 F.3d 1244, 1246 (11th Cir. 2000) (“[Hakim]
obtained from the State of Florida a legal name change to his Muslim name.”); Ali v. Dixon,
912 F.2d 86, 87 (4th Cir. 1990) (“[Ali’s] name change is official under North Carolina law.”).
Accordingly, these cases are unpersuasive. The third federal case relied upon by
Barnes, Akbar v. Canney, 634 F.2d 339, 340 (6th Cir. 1980), does not deal with a First
Amendment claim related to a name change, but instead deals with whether a prison
official must change his records to reflect the newly adopted name of a prisoner who has
changed his name upon acceptance of the Sunni Muslim religion. In any event, the Sixth
Circuit answered that issue in the negative and held that an inmate does not have a
“constitutional right to dictate how prison officials keep their prison records.” Id. We
find the Canney case distinguishable and inapplicable to our analysis.
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Next, Barnes argues that a criminal conviction alone is not enough to deny his right
to a name change. In support, he cites a Tennessee Court of Appeals decision, In re
Ely, which held that “conviction of a felony, by itself, is not grounds to deny a name change
petition.” No. M2000-01937-COA-R3-CV, 2004 WL 383304, at *1 (Tenn. Ct. App. March
1, 2004). Unlike Texas’s blanket “final felony conviction” limiting language, see TEX.
FAM. CODE ANN. § 45.103(a), the Tennessee statute regulating name changes specifies
only certain convictions for which name changes are prohibited. See TENN. CODE ANN.
§ 29-8-101 (West, Westlaw through 2015 1st R.S.). However, our analysis calls for an
interpretation and application of Texas law, so we find In re Ely unpersuasive to this
analysis.2
In this case, even assuming that Barnes met the requirements of section
45.102(a), Barnes judicially admitted in his pleading that he is currently incarcerated in
the Texas Department of Criminal Justice—Institutional Division for a felony conviction.
See DowElanco v. Benitez, 4 S.W.3d 866, 871 (Tex. App.—Corpus Christi, no pet.) (“A
judicial admission is a formal waiver of proof, usually found in pleadings or the stipulations
of the parties, that dispenses with the production of evidence on an issue and bars the
admitting party from disputing it.”). A “final felony conviction” prohibits a petitioner in
Texas such as Barnes, who is still incarcerated, from seeking a name change. See also
TEX. FAM. CODE ANN. § 45.103(a). Therefore, having reviewed the record, we hold that
the trial court did not abuse its discretion in denying Barnes’s request for name change
pursuant to this provision. We overrule Barnes’s sole issue.
2 We likewise find Barnes’s reliance on In re Crushelow, 926 P.2d 833 (Utah 1996) misplaced
because it deals with an interpretation of Utah’s name-change law rather than Texas law.
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III. CONCLUSION
We affirm the trial court’s order denying Barnes’s petition for name change.
GINA M. BENAVIDES,
Justice
Delivered and filed the
21st day of May, 2015.
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