due course of law claim in Texas

2009In Pena v. State, the Waco Court of Appeals held that a due course of law violation may be found on the basis of the State’s negligent failure to preserve potentially useful evidence. 226 S.W.3d 634, 651 (Tex.App.-Waco 2007), rev’d on other grounds, 285 S.W.3d 459, 465 (Tex.Crim.App.2009) (holding due course of law complaint was not properly preserved for appellate review).

2009The Pena court, looking to the Delaware Supreme Court for guidance, considered three factors when examining a due course of law claim based on failure to preserve evidence: “(1) would the evidence have been subject to discovery or disclosure; (2) if so, did the state have a duty to preserve the evidence; (3) if there was a duty to preserve, was that duty breached, and what consequences should flow from the breach.” Id. (citing Deberry v. State, 457 A.2d 744, 750 (Del.1983)).

2009The Pena court, looking to the Delaware Supreme Court for guidance, considered three factors when examining a due course of law claim based on failure to preserve evidence: “(1) would the evidence have been subject to discovery or disclosure; (2) if so, did the state have a duty to preserve the evidence; (3) if there was a duty to preserve, was that duty breached, and what consequences should flow from the breach.” Id. (citing Deberry v. State, 457 A.2d 744, 750 (Del.1983)).

2009The Pena court, looking to the Delaware Supreme Court for guidance, considered three factors when examining a due course of law claim based on failure to preserve evidence: "(1) would the evidence have been subject to discovery or disclosure; (2) if so, did the state have a duty to preserve the evidence; (3) if there was a duty to preserve, was that duty breached, and what consequences should flow from the breach." Id. (citing Deberry v. State , 457 A.2d 744, 750 (Del. 1983)).

1995See City of Mesquite v. Aladdin's Castle , 455 U.S. 283, 293 (1982). (6) Courts have sometimes equated the due course of law clause in article I, section 19 of the Texas Constitution with the guarantees of due process under the Fourteenth Amendment to the United States Constitution, Norris v. State , 788 S.W.2d 65, 72 (Tex. App.--Dallas 1990, pet. ref'd), but Texas courts are not bound by United States Supreme Court decisions addressing due process issues.

1995See *701 City of Mesquite v. Aladdin’s Castle, 455 U.S. 288 , 293, 102 S.Ct. 1070, 1076 , 71 L.Ed.2d 152 (1982). 6 Courts have sometimes equated the due course of law clause in article I, section 19 of the Texas Constitution with the guarantees of due process under the Fourteenth Amendment to the United States Constitution, Norris v. State, 788 S.W.2d 65, 72 (Tex.App.—Dallas 1990, pet. ref'd), but Texas courts are not bound by United States Supreme Court decisions addressing due process issues.

2015Citing Pena, 226 S.W.3d at 655 , appellant contends that an adverse-inference instruction was mandated to cure a due course of law violation.

2015Citing Pena, 226 S.W.3d at 655 , appellant contends that an adverse-inference instruction was mandated to cure a due course of law violation.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2015See Jones v. State, 437 S.W.3d 536, 540 (Tex. App.—Texarkana 2014, no. pet.); Higginbotham v. State, 416 S.W.3d 921, 926 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Vasquez, 230 S.W.3d at 751 ; McGee v. State, 210 S.W.3d 702, 705 (Tex. App.—Eastland 2006, no pet.); Salazar v. State, 185 S.W.3d 90, 92 (Tex. App.—San Antonio 2005, no pet.); see also Alvarado v. State, No. 07–06–0086–CR, 2006 WL 2860973 , at *3 (Tex. App.—Amarillo Oct. 9, 2006, no pet.) (mem. op., not designated for publication). 7 contained in the car’s shell was exculpatory or inculpatory.

2008The "interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized." Troxel v. Granville , 530 U.S. 57, 65 (2000); see also Meyer v. Nebraska , 262 U.S. 390 (1923) (due process "liberty" encompasses "the right of the individual to . . . bring up children"); J.W.T. , 872 S.W.2d at 195 .

2007The "interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized." Troxel v. Granville, 530 U.S. 57, 65 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000); see also Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) (due process "liberty" encompasses "the right of the individual to . . . bring up children"); J.W.T., 872 S.W.2d at 195 .

2008Constitutionally Protected Interest "In asserting a due course of law claim, [the appellant] must establish that his interest is constitutionally protected." In re J.W.T. , 872 S.W.2d 189, 194 (Tex. 1994).

2007Constitutionally Protected Interest "In asserting a due course of law claim, [the appellant] must establish that his interest is constitutionally protected." In re J.W.T., 872 S.W.2d 189, 194 (Tex.1994).

2022See Reynoso v. Dibs US, Inc., 541 S.W.3d 331, 338 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

2019Reynoso v. Dibs US, Inc., 541 S.W.3d 331, 338 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

2021App. 1992) (Maloney, J., dissenting) (asserting that error is fundamental when “the alleged error is such that it calls into question whether the accused received a fair and impartial trial and ‘implicates the due course of law clause of the Texas Constitution[]’”); Smith v. State, 463 S.W.3d 890, 901 (Tex. Crim.

2019App. 1992) (Maloney, J., dissenting) (asserting that error is fundamental when “the alleged error is such that it calls into question whether the accused received a fair and impartial trial and ‘implicates the due course of law clause of the Texas Constitution.’”); Smith v. State, 463 S.W.3d 890, 901 (Tex. Crim.

1997Cf. Board of Firemen’s Relief & Retirement Fund Trustees v. Hamilton, 386 S.W.2d 754, 755 (Tex.1965).

1997Cf. Board of Firemen's Relief & Retirement Fund Trustees v. Hamilton , 386 S.W.2d 754, 755 (Tex. 1965).

1997Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983); Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex.App.—Houston [1st Dist.] 1988, writ denied).

1996LeCroy v. Hanlon, 713 S.W.2d 335, 340 , 340 n. 7 (Tex.1986); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983).

1995Wilson v. State , 825 S.W.2d 155, 162 (Tex. App.--Dallas 1992, pet. ref'd).

1995Wilson v. State, 825 S.W.2d 155, 162 (Tex.App.—Dallas 1992, pet. ref'd).

1995See *701 City of Mesquite v. Aladdin’s Castle, 455 U.S. 288 , 293, 102 S.Ct. 1070, 1076 , 71 L.Ed.2d 152 (1982). 6 Courts have sometimes equated the due course of law clause in article I, section 19 of the Texas Constitution with the guarantees of due process under the Fourteenth Amendment to the United States Constitution, Norris v. State, 788 S.W.2d 65, 72 (Tex.App.—Dallas 1990, pet. ref'd), but Texas courts are not bound by United States Supreme Court decisions addressing due process issues.

1995See *701 City of Mesquite v. Aladdin’s Castle, 455 U.S. 288 , 293, 102 S.Ct. 1070, 1076 , 71 L.Ed.2d 152 (1982). 6 Courts have sometimes equated the due course of law clause in article I, section 19 of the Texas Constitution with the guarantees of due process under the Fourteenth Amendment to the United States Constitution, Norris v. State, 788 S.W.2d 65, 72 (Tex.App.—Dallas 1990, pet. ref'd), but Texas courts are not bound by United States Supreme Court decisions addressing due process issues.

2018Due-course-of-law claim The City argues that the Private Parties’ due-course-of-law claim is not viable, and thus barred by governmental immunity, because the Private Parties “did not allege they are unable to pursue their occupation owing to the Ordinance” and because the Private Parties “failed to plead that the Ordinance was not arguably rationally related to a legitimate governmental interest.” See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 87 (Tex. 2015) (establishing standard for as-applied challenge to economic regulation under due-course-of-law provision); 11 Mirand

2018Due-course-of-law claim The City argues that the Private Parties’ due-course-of-law claim is not viable, and thus barred by governmental immunity, because the Private Parties “did not allege they are unable to pursue their occupation owing to the Ordinance” and because the Private Parties “failed to plead that the Ordinance was not arguably rationally related to a legitimate governmental interest.” See Patel v. Texas Dep’t of Licensing & Regulation, 469 S.W.3d 69, 87 (Tex. 2015) (establishing standard for as-applied challenge to economic regulation under due-course-of-law provision); 11 Mirand

2021See Nat'l Collegiate Athletic Ass'n v. Yeo, 171 S.W.3d 863, 870 (Tex. 2005) (dismissing due process claim because plaintiff asserted no interest protected by article I, § 19 of the Texas Constitution); Tex. A & M Univ.

2016In a due-course-of-law analysis, courts look to federal cases construing the guarantee of due process as persuasive authority, NCAA v. Yeo, 171 S.W.3d 863 , *112 867-68 & 867 n. 14 (Tex.2005).

2016Appellant cites no authority directly supporting his specific argument, but instead points to Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App. 1991), a search-and-seizure case in which the Texas Court of Criminal Appeals recognized that in certain instances, the Texas Constitution may provide criminal defendants with protections beyond those spelled out in the federal constitution.

2001Although Eisen raises the same question with respect to the due-course-of-law clause of the Texas Constitution, article I, section 29, he did not "carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground.” Heitman v. State, 815 S.W.2d 681 , 690 n. 23 (Tex.Crim.App.1991). 7 .

2008The "interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized." Troxel v. Granville , 530 U.S. 57, 65 (2000); see also Meyer v. Nebraska , 262 U.S. 390 (1923) (due process "liberty" encompasses "the right of the individual to . . . bring up children"); J.W.T. , 872 S.W.2d at 195 .

2007The "interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests recognized." Troxel v. Granville, 530 U.S. 57, 65 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000); see also Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) (due process "liberty" encompasses "the right of the individual to . . . bring up children"); J.W.T., 872 S.W.2d at 195 .

2015Than, 901 S.W.2d at 929 .

1997The Texas Supreme Court has held that the Due Course of Law clause in the Texas Constitution is slightly different from the Due Process clause in the Fourteenth Amendment, but that the two clauses are similar and “without meaningful distinction.” University of Tex. Medical Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995).

1999See Oakley v. State, 830 S.W.2d 107 (Tex.Crim.App.1992).

1998Oakley v. State, 830 S.W.2d 107 (Tex.Crim.App.1992).

1995Rose v. State, 752 S.W.2d 529, 537 (Tex.Crim.App.1987) (op. on reh’g), held that a parole instruction under former TexCode Cri.m.P.Ann art. 37.07, § 4 (act of June 13, 1985, 69th Leg., R.S., ch. 576, sec. 1, 1985 Tex.Gen.Laws 2195, amended by act of May 6, 1987, 70th Leg., R.S., ch. 66, sec. 1, 1987 Tex.Gen.Laws 170, amended by act of June 19, 1987, 70th Leg., R.S., ch. 1101, sec. 15, 1987 Tex.Gen.Laws 3765), violated the separation of powers doctrine and the due course of law clause of the Texas Constitution.

1990In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987), on original submission, this Court declared Art. 37.07, § 4, V.A.C.C.P., unconstitutional as being in violation of the due course of law clause and the separation of powers doctrine of the Texas Constitution.

2022Abney v. Miller, 128 S.W.2d 1134, 1135 (Tex. 1939) (noting that “temporary injunction should remain in force pending trial” if there is “one ground” supporting issuance of injunction).10 CONCLUSION Having overruled the UIL Defendants’ second issue and the portion of their first issue as it pertains to the Plaintiffs’ due-course-of-law claim, we affirm the portions of the trial court’s order granting the temporary injunction and denying the plea to the jurisdiction as to the due-course-of-law claim.

2019He seeks a freestanding declaration of his statutory rights, and the Texas Supreme Court has been clear that state agencies are immune from 10 such claims absent a specific waiver.5 See Sefzik, 355 S.W.3d at 621 ; Sawyer Tr., 354 S.W.3d at 388 (holding “no general right to sue a state agency for a declaration of rights” under UDJA exists).