Sarita Kenedy East

I need some shelter of my own protection baby,To be with myself and center, clarity, Peace, Serenity

2007-09-13T23:30:00.000-07:00

Fergie Big Girls Don't Cry Lyrics

*** Complimentary Big Girls Don't Cry Ringtone ***
Da Da Da Da
The smell of your skin lingers on me now
You're probably on your flight back to your home town
I need some shelter of my own protection baby
To be with myself and center, clarity
Peace, Serenity

[CHORUS:]
I hope you know, I hope you know
That this has nothing to do with you
It's personal, myself and I
We've got some straightenin' out to do
And I'm gonna miss you like a child misses their blanket
But I've got to get a move on with my life
It's time to be a big girl now
And big girls don't cry
Don't cry
Don't cry
Don't cry

The path that I'm walking
I must go alone
I must take the baby steps 'til I'm full grown, full grown
Fairytales don't always have a happy ending, do they?
And I foresee the dark ahead if I stay

[CHORUS:]
I hope you know, I hope you know
That this has nothing to do with you
It's personal, myself and I
We've got some straightenin' out to do
[Big Girls Don't Cry lyrics on http://www.metrolyrics.com]

And I'm gonna miss you like a child misses their blanket
But I've got to get a move on with my life
It's time to be a big girl now
And big girls don't cry

Like the little school mate in the school yard
We'll play jacks and uno cards
I'll be your best friend and you'll be mine Valentine
Yes you can hold my hand if you want to
'Cause I want to hold yours too
We'll be playmates and lovers and share our secret worlds
But it's time for me to go home
It's getting late, dark outside
I need to be with myself and center, clarity
Peace, Serenity

[CHORUS]
I hope you know, I hope you know
That this has nothing to do with you
It's personal, myself and I
We've got some straightenin' out to do
And I'm gonna miss you like a child misses their blanket
But I've got to get a move on with my life
It's time to be a big girl now
And big girls don't cry
Don't cry
Don't cry
Don't cry

La Da Da Da Da Da
*** Complimentary Big Girls Don't Cry Ringtone ***
Big Girls Don't Cry Music Video
Submit Corrections
Female Today at 01:13 AM (4h 34m ago) by Mandy<333 Female Stars
BORED!!! I HATE HOMERWORK!! lol but this song is sooo good! I can't believe that Fergie would sing something like this but she has a great voice so she can sing anything!

Female Yesterday at 04:31 PM (13h 15m ago) by jeezy_babe Female Stars
can't belive she did a slower song! She did great at it though, she should do it more often! I love her music

Female Sep 12, 2007 at 11:11 PM by mzshawty Female Stars
Loving all her music, they just great..But of all i love this song so much, i have it everywhere, Ipod, CDs, Cell Phone, Laptop, I mean everywhere..lol

Female Sep 12, 2007 at 07:49 PM by nick0lve Female Stars
this song is realy good it was fun in the music video wit the candies underewear

Female Sep 12, 2007 at 01:51 PM by malena666 Female Stars
hi...im from croatia...teens here dont listen too much fergie but me either...but!!!i adore this song...it is very cool...now i have a boyfriend but i am singing it all the time and he is asking me very often am i going to leave him...but i am not....ccc!!lov u all...big hug from 16 years old girl from croatia...kiss

Female Sep 11, 2007 at 12:40 AM by nick0lve Female Stars
it is good becaus i dont like fregi

Female Sep 11, 2007 at 12:40 AM by nick0lve Female Stars
it is good becaus i dont like fregi

Female Sep 10, 2007 at 10:10 AM by annoying_chic
holy molly!this song is da BOMB!
go fergie!

Female Sep 09, 2007 at 07:56 PM by cammie52 Female Stars
am in love with this guy but he has a girlfriend its complicated but i know he has chosen her over me even though am feeling real sad right now as fergie says big girls dont cry and am trying hard not too

Female Sep 09, 2007 at 07:15 PM by swit_chik86 Female Stars
I super love it!!! It's so hard to find yourself

Female Sep 09, 2007 at 02:39 PM by x.jamie- Female Stars
i love this song! this song reminds me of my ex, because i left him, because i moved to a different city, and i didnt want a long-distant relationship, i'm still not over him!!! NICHOLAS I MISS YOU!!!

Female Sep 09, 2007 at 08:59 AM by Alex-Rox Female Stars
This song is so catchy and so meaningful! 5/5! definatly 1 of fergies best songs!

Female Sep 09, 2007 at 07:19 AM by lady_rum
is that Milo????what a boy....i love him so much....

Female Sep 09, 2007 at 12:39 AM by katheryn_07 Female Stars
this song rulz!!i love fergie bc we could b twins lol!!

Female Sep 08, 2007 at 04:03 PM by I am Glamorous
Cool song! I like it alot!

Female Sep 08, 2007 at 03:43 PM by rockerchik901 Female Stars
I luv this song so much i almost passed out when i saw tha candies comercial

Female Sep 08, 2007 at 02:52 PM by ashley77zac77
I love ths song. And I like Glamorous. It was on that Candies commercial.

Female Sep 08, 2007 at 09:21 AM by ann18
I found the song in flifkr'dot'com

Female Sep 08, 2007 at 01:13 AM by ..yv0nn3.. Female Stars
i love dis song..!! fergie rulez..!!

Female Sep 07, 2007 at 09:17 PM by AutumnK94 Female Stars
i luv this song! i em not too much of a fan of fergie myself, but i luv this song and glamorous, this song reminds me of my ex boyfriend cuz i cant cry about him, so i have to be a big girl now, and big girls dont cry! Josh i miss u!!! :(

Female Sep 06, 2007 at 03:20 PM by Snerf Female Stars
I love this song. I played over and over again. Even my 2 yr old daughter shelove's it. Evrytime she heard this song she started to sing. And she look so cute. I love Fergie.... Finally the star is born....

Female Sep 06, 2007 at 08:38 AM by cheekychild_99
meridith if u love someone to death you wouldn't want to leave them to be with youself

Female Sep 06, 2007 at 08:36 AM by cheekychild_99
jesscrox2 u r tottaly wrong it should b played more i hardly hear it luckily i have it on my comp! oh and if any on wants to add mii on myspace or msn this is my email adress what i have used

Female Sep 05, 2007 at 04:05 PM by Britz
i luv this song! it rox ...XxX

Female Sep 05, 2007 at 06:24 AM by NahNah16
this song is like my favourite song its awesome/

Kenedy Mystique: Judge Orders San Antonio Express-News not to publish articles related to matters contained in the court records

2007-08-25T20:25:00.000-07:00

UPDATE: Judge demands paper return court documents
Web Posted: 08/23/2007 04:50 PM CDT
John MacCormack
Express-News Staff Writer

A state district judge who this spring presided over the guardianship case of a prominent South Texas rancher has ordered the San Antonio Express-News not to publish articles related to matters contained in the court records, regardless of how the information was obtained.

In his Wednesday order, District 229 Judge Alex Gabert also gave the newspaper five days to surrender any paper copies of court documents relating to the Robert C. East case, and destroy any electronic records.

In early June, Gabert issued a temporary order sealing court documents and also kept the court proceedings closed to the public.

In his Wednesday order, Gabert cites the newspaper's “callous, conscious, willful and deliberate disregard” for his earlier orders sealing records, which occurred while East was still alive.

East, 87, a pioneering South Texas rancher from Hebbronville, died June 18 after a lengthy illness, leaving an estate valued in the hundreds of millions of dollars.

East left no direct heirs, and his death came just days after a nasty legal fight involving his relatives and several employees was largely resolved.

Among the disputed issues was East's mental competence and his need to have an independent guardian.

On July 22, the Express-News published a lengthy article exploring the complicated legal issues surrounding East's final days, including the question of his capacity.

The article was based in part on documents obtained outside of the court process. It is those records that Gabert ordered be turned over to the executor of East's estate within five days.

“The Express-News published a story that we believe was of significant public interest, based on documents we obtained legally,” said Robert Rivard, editor of the Express-News.

His order extends to all parties to the proceeding, including the various lawyers and their employees and all court officers and employees.

Lawyers for the Hearst Corp., which owns the newspaper, were preparing a legal response to Gabert's order Thursday.

jmaccormack@express-news.net

Stolen Wealth From Grave Robbers

2007-08-25T20:20:00.000-07:00

Ranch foreman is inheriting legal fight
Web Posted: 08/23/2007 01:31 PM CDT
John MacCormack
Express-News HEBBRONVILLE — On June 15, as one of the wealthiest and most reclusive men in South Texas was quietly dying at his ranch 35 miles from town, the lawyers were very busy.

The rich man's relatives, employees and attorneys were struggling for money and control, and time was short. A doctor had given the aging rancher less than 24 hours to live.

If Robert C. East, 87, were to die before they settled it, an even nastier legal fight likely would ensue.

East, a great-grandson of Richard King, founder of the fabled King Ranch, had no known descendants. He measured his worth in hundreds of millions of dollars and hundreds of thousands of acres.

A pioneering cattleman in his own right, he had spent most of his life deep in the Jim Hogg County mesquite with the cattle and vaqueros of his family spread, the San Antonio Viejo Ranch.

East worked on horseback well into his 80s, preferred border Spanish to English and answered to "Roberto." He so rarely came to town that even some older, lifelong Hebbronville residents had never met him.

"He was a very old-fashioned kind of guy. Very old times, and very, very private," recalled one East employee, who, like others, asked not to be named.

In late 2006, East's health began to fail. By late spring, weakened by pneumonia, he was malnourished, gravely ill and increasingly uncommunicative.

A closed-door court battle began in May, when some relatives pressed for a court-appointed guardian.

The foreman

At stake was East's welfare — and administrative control of his considerable assets. Since the entire estate would go to a family wildlife trust, the parties bickered over who would be in charge after his death.

The fight centered on Oscar Ozuna, the ranch foreman since 2001 who claimed he had East's full confidence, having been raised on the ranch and having worked for him off and on for decades.

But East's relatives saw Ozuna as a manipulative Svengali, claiming the foreman had cut East off from his family, neglected his health and property and taken over his affairs.

In the fall, East had put shaky signatures to a set of legal documents that greatly benefited Ozuna.

There was a long-term employment contract that paid Ozuna $11,000 a month.

Ozuna, ranch employee Carilu Cantu Leal and Celestino Canales, a local justice of the peace, became sole officers of the Robert C. East Management Trust, which would control his wealth after his death.

Another instrument authorized a $500,000 payout to Ozuna from the trust, payable at East's death.

A broad power of attorney was granted to Ozuna, Cantu and Canales in the event East became incapacitated.

In court filings, Ozuna said all these actions clearly showed East wanted him in charge.

"In naming Mr. Ozuna as his attorney-in-fact, Robert C. East thereby expressed his confidence and trust in Mr. Ozuna's ability to conduct (East's) business affairs and to care for (East) in health-related matters," said a document filed by Ozuna lawyer Preston Hendrichson.

Doctors who saw East last spring noted he seemed most comfortable when Ozuna and other familiar ranch hands were present.

But Ozuna was self-serving, not benevolent, some of East's nieces and nephews argued.

"As soon as he was hired, Oscar Ozuna and persons associated with him began a long and deliberate plan to isolate Robert Claude East ... (and) control the flow of information to Robert Claude East, and consolidate their control over Robert Claude East," reads one court motion.

His assets, the motion said, have "at best been mismanaged and at worst systematically plundered by Oscar Ozuna and his associates."

Neither Ozuna nor Hendrichson responded to requests for comment. Nor did Cantu and her lawyer, Frank Enriquez. Reached in Hebbronville, Canales declined to comment.

'Incapacity is total'

District Judge Alex Gabert, at the request of East's lawyers, made the court hearings and case file off limits to the public, and most of the parties have declined to comment.

Information is also scarce on the streets of Hebbronville.

"This whole thing is touchy. I can't talk. Everyone has got the mums," said one longtime East acquaintance.

But the secret legal drama can be glimpsed in court documents obtained by the San Antonio Express-News.

The key issue was East's mental competence. Some of his relatives argued that he had been legally incapacitated for months and desperately needed an independent guardian.

Ozuna, Canales and Cantu, as well as two lawyers who represented East, claimed he was still able to make important decisions.

"I believe he has capacity, but I am not saying he has total capacity," testified Paul Price, one of East's lawyers, in a May 21 hearing.

When a court-approved psychiatrist visited the ranch on May 30, he found East "essentially non-communicative" and in failing health.

"Mr. East is described by all interviewed as someone who preferred to have few if any visitors. His greatest pleasure was the day-to-day operations of his ranch," Dr. Mark A. Burns reported.

"It is also reported that he has had challenging relationships with various family members and is largely estranged from his blood relations."

As to East's mental state, Burns was unequivocal.

"In terms of decision-making capacity, Mr. East appears to be severely impaired ... He clearly meets the definition of an 'incapacitated person.' ... His incapacity is total and a guardian should be appointed," he wrote.

No guardian was appointed.

But on the same afternoon he approved a comprehensive agreement, the judge named an attorney ad litem, who assured the court that it was in East's best interest.

Secret showdown

When they began mediating in May, the parties were millions of dollars apart on a deal that would remove Ozuna and his associates from the picture.

Although a partial deal was reached in early June, leading to Ozuna, Cantu and Canales being banned from the ranch, by midmonth nothing was final.

The lawyers were growing anxious. If East were to die before an agreement was reached, the mediation would become void, leaving Ozuna and his associates still in charge.

On June 15, a Friday afternoon, Judge Gabert presided in blue jeans at an emergency hearing in Rio Grande City. Ozuna, the sole witness, testified East was of sound mind last year when he signed the critical documents.

"He was in his five senses ... He knew everything he did," Ozuna said.

Moments later, Gabert signed an order approving East's will, the comprehensive settlement and various other documents. At 4:40 p.m. the order was stamped by the district clerk.

All told, about $2 million of East's money changed hands, with Ozuna reportedly receiving nearly $900,000. Cantu and Canales together were paid about $325,000. The balance went to pay their attorneys.

In exchange, the three agreed to drop all claims to East's estate, renounce their powers of attorney and step down as officers of the charity due to inherit East's money.

The hush-hush deal — which some parties to the litigation learned about later — came none too soon. On Saturday, a Catholic priest administered the last rites and by early Monday East was dead.

Three days later, more than 150 people paid their last respects in a graveside ceremony at the ranch. A mariachi played, poetry was read and East was laid to rest near his parents and siblings.

But if East had forever secured the peace and privacy he loved, the legal wrangling was hardly over.

Ten days after his death, the office of Attorney General Greg Abbott — which oversees all charities — notified all the parties that a complaint had been received about the East case.

"The matter is under review to determine if it warrants an investigation," said Abbott spokesman Tom Kelley.

Late last week, a lawyer for Helen Kleberg Groves, one of East's cousins, asked Gabert to set aside his approval of the settlement because Groves and other parties weren't consulted when the final deal was hammered out.

The lawyer, Dick DeGuerin of Houston, also argued that East was likely "totally incapacitated" long before he died and should have had a guardian appointed to protect his interests.

The motion further noted that toxicology test results aren't in, so "the causes of Robert C. East's death have not been fully explored."

"We're not satisfied that all the facts are known," DeGuerin said later by telephone. "When you have five parties to a controversy and only three are in the room when the settlement is made, it just doesn't smell right."

jmaccormack@express-news.net

Why spend your money for what your wages for what fails to satisfy?

2007-08-11T01:05:00.000-07:00

Sunday, July 31, 2005
Today's reading
Thus says the LORD:
All you who are thirsty,
come to the water!
You who have no money,
come, receive grain and eat;
Come, without paying and without cost,
drink wine and milk!
Why spend your money for what is not bread;
your wages for what fails to satisfy?
Heed me, and you shall eat well,
you shall delight in rich fare.
Come to me heedfully,
listen, that you may have life.
I will renew with you the everlasting covenant,
the benefits assured to David.

Hunger in the world always scares me a little. For some reason, it seems worse when I think that the real food comes from above.

Corpus Christi Caller Times: Corpus Christi Daily Digital: Linda was the first person in a Corpus Christi Public Housing Dev. to successfully run 4 pu

2007-08-03T00:04:00.000-07:00

Corpus Christi Caller Times: Corpus Christi Daily Digital: Linda was the first person in a Corpus Christi Public Housing Dev. to successfully run 4 pub office: a person who picked

Corpus Christi Daily Digital: Linda was the first person in a Corpus Christi Public Housing Dev. to successfully run 4 pub office: a person who picked herself up by her bootstraps

by hkarsh

August 2, 2007

I was a candidate for the Del Mar Board of Regents. I picked up the package to run for office. I am College Educated. I have several degrees. I'm pretty good at reading and writing contracts and such. I'm not a lawyer and believe me I could have used a lawyer to explain all the stuff I was responsible for and had to do. Del Mar wasn't going to explain it to me and the local party bosses wouldn’t have anything to do with me. Del Mar certainly wasn't going to help Linda whose brother they had railroaded out of a job. Now Linda was the first person in a Corpus Christi Public Housing development to successfully run for a public office and her neighbors were very proud of her. So here we have a person who picked herself up by her bootstraps with out the aid of the local democratic or republican bosses and won her election. So what do the local politicos do and that includes our slimy DA

there's more at the link above

Straight shooter and A Square dealer........flash back the 1922 land tract.......ring a bell?

2007-07-31T04:35:00.000-07:00

EAST, SARITA KENEDY (1889-1961). Sarita Kenedy East, South Texas rancher and philanthropist, daughter of John G. and Marie Stella (Turcotte) Kenedy, was born on September 19, 1889, in Corpus Christi, Texas. Her grandfather was Mifflin Kenedy,qv founder of the vast La Parra Ranch in what was then Cameron County (now Kenedy County). She spent much of her childhood at La Parra, and her father named the new town of Sarita, located on the Kenedy ranch, for his daughter upon the town's founding around 1904. Sarita attended Incarnate Word Academy in Corpus Christi and then H. Sophie Newcomb Memorial College in New Orleans. She also made her debut in New Orleans. She did not complete college, but instead returned to La Parra. On December 8, 1910, she married Arthur Lee East, a South Texas rancher. They did not have any children. After Arthur East died in 1944, Mrs East and her brother John G. Kenedy, Jr., were in charge of the 400,000-acre Kenedy ranch. Upon her brother's death in 1948, Sarita and her sister-in-law Elena Suess Kenedy became the sole heirs to the ranch. Sarita East also owned the San Pablo Ranch near Hebbronville and Twin Peaks Ranch in Colorado. She served as a county commissioner of Kenedy County and was on the board of directors of Alice National Bank. In addition to her business dealings she engaged in philanthropy especially to Catholic charities. In 1952 she received the Ecclesia et Pontifice medal and membership in the Ladies of the Holy Sepulchre of Jerusalem from Pope Pius XII for her service to the church. She was also named an honorary member of the Franciscans and the Oblates of Mary Immaculate.qqv In her 1948 will she bequeathed La Parra ranch headquarters and 10,000 acres of land to the Oblate fathers and 13,000 acres to the Diocese of Corpus Christi.qv The rest of her vast estate was divided among relatives and ranch kin.

In 1948 Mrs. East met Christopher Gregory, a Trappist monk who had taken the name Brother Leo. Two years earlier Brother Leo had been released from his vow of silence and assigned to raise funds for new Trappist monasteries. He was on a fund-raising trip through South Texas when he met Sarita East, and over the next few years he became her advisor and traveling companion. In the 1950s Mrs. East allowed oil and gas exploration on her ranch, which up to that time had largely been an untapped resource. During that time she gave money to the Trappist monks and visited monasteries throughout the world. In 1959, with other family members and Brother Leo, she went on a South American tour, one of several trips she made, and donated $300,000 to build a mission in Chile. That same year Brother Leo introduced her to J. Peter Grace, chairman of the board of W. R. Grace and Company, in New York. The three began the work of forming a charitable foundation. On January 21, 1960, they established the John G. and Marie Stella Kenedy Memorial Foundation, with Sarita Kenedy East as sole member. Mrs. East also wrote another will leaving the bulk of her estate to the foundation. Over the next few months she wrote a series of codicils to her will that increasingly gave more control of the foundation to Brother Leo and Grace. Just before her death she named Brother Leo sole member of the foundation. Sarita Kenedy East died of cancer on February 11, 1961, in New York City and was buried at La Parra Ranch.

Within months after her death a group of South Texans, including Elena Suess Kenedy, members of the Turcotte family, and the Diocese of Corpus Christi, filed a lawsuit disputing Brother Leo's control of the foundation, charging that Leo and Grace exerted undue influence over Mrs. East while she was disoriented by medication. Other relatives also contested her 1960 will and wished to reinstate her 1948 will dividing the estate among various beneficiaries. Over the course of the battle more than 200 people claimed to be legitimate heirs. In 1964 a settlement regarding the foundation resulted in the splitting of assets. Grace and the New York group relinquished control of the foundation over Brother Leo's objections. The bulk of the funds, approximately $100 million, went to the control of the South Texans, but Grace received oil royalties (not to exceed $14.4 million) from the estate and established a smaller foundation in New York, the Sarita Kenedy East Foundation, worth approximately $13 million. In 1966 Brother Leo filed an appeal against the decision; after a further series of appeals the Texas Supreme Court ruled against him. In June 1981 the United States Supreme Court refused to hear his appeal, thereby affirming the rights of the Texas relatives to retain control of the foundation. Through a series of court battles over the years the 1960 will was upheld over the 1948 will, and the assets of the foundation and most of the Kenedy estate remained intact. As Mrs. East wished, the ranch headquarters went to the Oblate fathers. The estate, which had been held in escrow by the Alice National Bank, was finally turned over to the foundation in 1982. In 1984, basically the first year that the foundation officially operated, it had $100 million in assets and was the largest charitable foundation in South Texas. It was stipulated that at least 10 percent of the income go to the Corpus Christi diocese, with a total of 90 percent of funds going for religious activities and the other 10 percent going to secular agencies.

BIBLIOGRAPHY: Corpus Christi Caller-Times, August 26-29, September 23-27, December 16-19, 1984. Stephan G. Michaud and Hugh Aynesworth, If You Love Me You Will Do My Will (New York: Norton, 1990). Vertical Files, Barker Texas History Center, University of Texas at Austin.

Laurie E. Jasinski

In this case, the “claimant” may be either the decedent or the personal representative of the decedent’s estate.

2007-06-03T00:21:00.000-07:00

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IN THE SUPREME COURT OF TEXAS

════════════

No.04-0681

════════════

Kristin Terk Belt and Kimberly Terk Murphy, Joint Independent Executrixes of The Estate of David B. Terk, Deceased, Petitioners

Oppenheimer, Blend, Harrison & Tate, Inc., Glen A. Yale, J. David Oppenheimer and Kenneth M. Gindy, Respondents

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourth District of Texas

════════════════════════════════════════════════════

Argued September 29, 2005

Chief Justice Jefferson delivered the opinion of the Court.

Justice Green did not participate in the decision.

Kristin Terk Belt and Kimberly Terk Murphy (the Terks)—the joint, independent executors of their father David Terk’s estate—sued several attorneys and their law firm, Oppenheimer, Blend, Harrison, & Tate, Inc. (collectively, the Attorneys) for legal malpractice. The Attorneys moved for summary judgment on the ground that estate planners owe no duty to the personal representatives of a deceased client’s estate. The trial court granted the motion, and the court of appeals affirmed the judgment. We hold, to the contrary, that there is no legal bar preventing an estate’s personal representative from maintaining a legal malpractice claim on behalf of the estate against the decedent’s estate planners. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings.

Background

David Terk hired the Attorneys to prepare his will. After his death, the Terks became the joint, independent executors of their father’s estate. As executors, the Terks sued the Attorneys for legal malpractice, alleging that the Attorneys were negligent in drafting their father’s will and in advising him on asset management. They claim the estate incurred over $1,500,000 in tax liability that could have been avoided by competent estate planning.

In affirming the trial court’s judgment for the Attorneys, the court of appeals cited Barcelo v. Elliott, in which we held that beneficiaries cannot maintain a malpractice cause of action against a decedent’s estate-planning attorney because the attorney lacks privity with non-client beneficiaries and therefore owes them no duty. 141 S.W.3d 706, 708-09 (citing Barcelo, 923 S.W.2d 575 (Tex. 1996)). The Terks argue that the Barcelo rule bars only claims by beneficiaries suing for their own injuries and does not preclude suits brought by personal representatives on an estate’s behalf. We granted the Terks’ petition to consider whether personal representatives may bring legal malpractice claims on behalf of a decedent’s estate. 48 Tex. Sup. Ct. J. 524 (Apr. 11, 2005).

Discussion

Legal malpractice claims sound in tort. See Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). The plaintiff must demonstrate “that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff’s injuries, and (4) damages occurred.” Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995).

While an attorney always owes a duty of care to a client, no such duty is owed to non-client beneficiaries, even if they are damaged by the attorney’s malpractice. See Barcelo, 923 S.W.2d at 577. In Barcelo, we considered whether beneficiaries dissatisfied with the distribution of estate assets may sue an estate-planning attorney for legal malpractice after a client’s death. Id. at 576. In that case, the intended beneficiaries of a trust, which was declared invalid after the client’s death, sued the attorney who drafted the trust agreement. Id. We held that the non-client beneficiaries could not maintain a suit against the decedent’s estate planner because “the greater good is served by preserving a bright‑line privity rule which denies a cause of action to all beneficiaries whom the attorney did not represent.” Id. at 578.

Several policy considerations supported our Barcelo holding. First, the threat of suits by disappointed heirs after a client’s death could create conflicts during the estate-planning process and divide the attorney’s loyalty between the client and potential beneficiaries, generally compromising the quality of the attorney’s representation. Id. at 578. We also noted that suits brought by bickering beneficiaries would necessarily require extrinsic evidence to prove how a decedent intended to distribute the estate, creating a “host of difficulties.” Id. We therefore held that barring a cause of action for estate-planning malpractice by beneficiaries would help ensure that estate planners “zealously represent[ed]” their clients. Id. at 578-79.

Thus, in Texas, a legal malpractice claim in the estate-planning context may be maintained only by the estate planner’s client. This is the minority rule in the United States—only eight other states require strict privity in estate-planning malpractice suits.[1] In the majority of states, a beneficiary harmed by a lawyer’s negligence in drafting a will or trust may bring a malpractice claim against the attorney, even though the beneficiary was not the attorney’s client. See, e.g., Lucas v. Hamm, 364 P.2d 685, 689 (Cal. 1961), cert. denied, 368 U.S. 987 (1962); Schreiner v. Scoville, 410 N.W.2d 679, 683 (Iowa 1987).

The question in this case, however, is whether the Barcelo rule bars suits brought on behalf of the decedent client by his estate’s personal representatives. Because most states allow beneficiaries to maintain estate-planning malpractice claims, only a handful of jurisdictions have considered this specific issue. See, e.g., Beastall v. Madson, 600 N.E.2d 1323, 1327 (Ill. App. Ct. 1992); Hosfelt v. Miller, No. 97-JE-50, 2000 Ohio App. LEXIS 5506, at *11-12 (Ohio Ct. App. Nov. 22, 2000); Sizemore v. Swift, 719 P.2d 500, 503 (Or. Ct. App. 1986); Rutter v. Jones, Blechman, Woltz & Kelly, P.C., 568 S.E.2d 693, 695 (Va. 2002). We confront this question for the first time today.

Generally, in Texas an estate’s personal representative [2] has the capacity to bring a survival action on behalf of a decedent’s estate. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005); see also Tex. Prob. Code § 233A (personal representative can institute suit for recovery of estate’s personal property, debts or damages). Therefore, if the Terks’ legal malpractice claim is brought on behalf of the decedent’s estate and survives the decedent, the Terks may maintain a suit against the Attorneys.

When no statute addresses the survivability of a cause of action, we apply common law rules. Thomes v. Porter, 761 S.W.2d 592, 594 (Tex. App.–Fort Worth 1988, no writ). “[A]t common law all causes of action for damages die with the person of the party injured, or the person inflicting the injury, except such damages as grow out of acts affecting the property rights of the injured party.” Johnson v. Rolls, 79 S.W. 513, 514 (Tex. 1904); see also Landers v. B. F. Goodrich Co., 369 S.W.2d 33, 34 (Tex. 1963) (refusing to depart from long-standing rule that an action for damage to real or personal property survives the death of the owner). Thus, absent a statute providing to the contrary, a cause of action that is penal or personal in nature typically does not survive, while claims that are contractual in nature or affect property rights survive the death of either party. See 1 Am. Jur. 2d Abatement, Survival and Revival § 65 (2006).

We have never specifically considered whether a legal malpractice claim in the estate-planning context survives a deceased client. A claim that an estate planner’s negligence resulted in the improper depletion of a client’s estate involves injury to the decedent’s property. See Tex. Prob. Code § 3(z) (defining the “personal property” of an estate to include interests in goods, money, and choses in action); see also Williams v. Adams, 193 S.W. 404, 405 (Tex. Civ. App.–Texarkana 1917, writ ref’d) (tort claim alleging fraud, which resulted in financial loss to the plaintiff, survived the death of the defendant because it involved the wrongful acquisition of property); Cleveland v. United States, No. 00-C-424, 2000 U.S. Dist. LEXIS 18908, at *9 (N.D. Ill. Dec. 27, 2000) (tort claim for financial loss resulting from estate-planning malpractice deemed an action for damage to personal property). Moreover, when an attorney’s malpractice results in financial loss, the aggrieved client is fully compensated by recovery of that loss; the client may not recover damages for mental anguish or other personal injuries. See Douglas v. Delp, 987 S.W.2d 879, 885 (Tex. 1999).

Thus, estate-planning malpractice claims seeking recovery for pure economic loss are limited to recovery for property damage. See id. Therefore, in accordance with the long-standing, common-law principle that actions for damage to property survive the death of the injured party, we hold that legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate, because such claims are necessarily limited to recovery for property damage.[3] See G. H. & S. A. R. R. v. Freeman, 57 Tex. 156, 158 (Tex. 1882) (a cause of action “brought for damage to the estate and not for injury to the person, personal feelings or character, . . . upon the death, bankruptcy or insolvency of the party injured, passes to the executor or assignee as a part of his assets, because it affects his estate, and not his personal rights”); see also Traver v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 862, 871 (Tex. App.–Fort Worth 1996) rev’d on other grounds, 980 S.W.2d 625 (Tex. 1998) (legal malpractice claim arising from representation in personal injury case survives death of client).

The court of appeals found for the Attorneys after holding that its prior decision in Estate of Arlitt v. Paterson controlled. 141 S.W.3d at 708. In Estate of Arlitt, the court held that an estate-planning malpractice claim does not accrue during a decedent’s lifetime—and therefore does not survive the decedent—because the estate’s injuries do not arise until after death.[4] See Estate of Arlitt v. Paterson, 995 S.W.2d 713, 720 (Tex. App.–San Antonio 1999, pet. denied).

We disapprove Estate of Arlitt’s holding that no legal malpractice claim accrues before death when an estate-planning attorney’s negligent drafting results in increased estate tax consequences. Even though an estate may suffer significant damages after a client’s death, this does not preclude survival of an estate-planning malpractice claim. While the primary damages at issue here—increased tax liability—did not occur until after the decedent’s death, the lawyer’s alleged negligence occurred while the decedent was alive. Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001) (legal malpractice claim accrues “when facts have come into existence that authorize a claimant to seek a judicial remedy”). If the decedent had discovered this injury prior to his death, he could have brought suit against his estate planners to recover the fees paid to them. See, e.g., Burrow v. Arce, 997 S.W.2d 229, 240 (Tex. 1999) (client need not prove actual damages in order to obtain forfeiture of attorney’s fees for the attorney’s “clear and serious” breach of fiduciary duty to the client). In addition, the decedent could have recovered the costs incurred in restructuring his estate to minimize tax liability. See, e.g., Porter v. Ogden, Newell, & Welch, 241 F.3d 1334, 1337 (11th Cir. 2001) (allowing suit to recover client’s costs, incurred during his lifetime, in curing problems created by negligent drafting of trust document, including funds expended in seeking judicial reformation of the trust and in lobbying the Florida legislature to change law affecting the trust). Therefore, if the injury occurs during the client’s lifetime, a claim for estate-planning malpractice survives the client’s death.[5] See Russell v. Ingersoll‑Rand Co., 841 S.W.2d 343, 345 (Tex. 1992) (decedent must suffer an “actionable wrong” during lifetime for claim to survive).

Because legal malpractice claims survive in favor of the decedent’s estate, the estate has a justiciable interest in the controversy sufficient to confer standing. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex. 2005). A decedent’s estate, however “is not a legal entity and may not properly sue or be sued as such.” Id. at 849. (citing Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975)). Rather, certain individuals have the capacity to bring a claim on the estate’s behalf. Id. Generally, “only the estate’s personal representative has the capacity to bring a survival claim.” Id. at 850-51 (noting that in certain circumstances, heirs may bring suit on behalf of the estate, such as when no administration is pending or necessary).

In this case, it is undisputed that the Terks are the independent executors of their father’s estate. Thus, they may bring a claim on behalf of the estate in their capacity as personal representatives. Lovato, 171 S.W.3d at 850; see also Tex. Prob. Code § 3(aa) (definition of “personal representative” includes independent executor of an estate). We have previously held that a bankruptcy trustee can maintain a legal malpractice claim on behalf of a debtor’s estate, and we see no reason to curtail a personal representative’s similar malpractice claim on behalf of a decedent’s estate. See Douglas v. Delp, 987 S.W.2d 879, 882 (Tex. 1999) (once party with legal malpractice claim declares bankruptcy, trustee of bankruptcy estate is only party with standing to pursue the claim). This holding is in accord with other jurisdictions, which have also recognized that, because the estate “stands in the shoes” of a decedent, it is in privity with the decedent’s estate-planning attorney and, therefore, the estate’s personal representative has the capacity to maintain the malpractice claim on the estate’s behalf.[6]

In holding for the Attorneys, the court of appeals noted that the policy concerns expressed in Barcelo concerning suits against estate planners by intended beneficiaries should also bar suits brought by personal representatives of an estate. 141 S.W.3d at 708. As noted above, in Barcelo we held that an attorney’s ability to represent a client zealously would be compromised if the attorney knew that, after the client’s death, he could be second-guessed by the client’s disappointed heirs. 923 S.W.2d at 578. Accordingly, we held that estate-planning attorneys owe no professional duty to beneficiaries named in a trust or will. Id. at 578-79.

While this concern applies when disappointed heirs seek to dispute the size of their bequest or their omission from an estate plan, it does not apply when an estate’s personal representative seeks to recover damages incurred by the estate itself. Cases brought by quarreling beneficiaries would require a court to decide how the decedent intended to apportion the estate, a near-impossible task given the limited, and often conflicting, evidence available to prove such intent. See id. at 578 (noting the problems associated with allowing extrinsic evidence to prove testator intent). In cases involving depletion of the decedent’s estate due to negligent tax planning, however, the personal representative need not prove how the decedent intended to distribute the estate; rather, the representative need only demonstrate that the decedent intended to minimize tax liability for the estate as a whole.[7]

Additionally, while the interests of the decedent and a potential beneficiary may conflict, a decedent’s interests should mirror those of his estate. Thus, the conflicts that concerned us in Barcelo are not present in malpractice suits brought on behalf of the estate. See Nevin v. Union Trust Co., 726 A.2d 694, 701 (Me. 1999) (holding that the better rule is to allow only personal representatives, not beneficiaries, to sue for estate-planning malpractice, because what may be good for one beneficiary is not necessarily good for the estate as a whole).

We note, however, that beneficiaries often act as the estate’s personal representative, and our holding today arguably presents an opportunity for some disappointed beneficiaries to recast a malpractice claim for their own “lost” inheritance, which would be barred by Barcelo, as a claim brought on behalf of the estate.[8] The temptation to bring such claims will likely be tempered, however, by the fact that a personal representative who mismanages the performance of his or her duties may be removed from the position. See Tex. Prob. Code § 222(b)(4). Additionally, even assuming that a beneficiary serving as personal representative could prove, for example, that the deceased client intended to maximize the size of the entire estate by leaving a larger inheritance to the personal representative, he or she would not necessarily recover the lost inheritance should the malpractice claim succeed. Because the claim allowed under our holding today is for injuries suffered by the client’s estate, any damages recovered would be paid to the estate and, only then, distributed in accordance with the decedent’s existing estate plan. See Russell, 841 S.W.2d at 345 (recovery in survival action flows to those who would have received it had it been part of decedent’s estate immediately prior to death). Thus, the recovery would flow to the disappointed beneficiary only if the estate plan had provided for such a distribution, fulfilling the decedent’s wishes. These factors prevent personal representatives who are also beneficiaries from using our holding today as an end run around Barcelo.

Since our decision in Barcelo, we have allowed non-clients to maintain negligent misrepresentation suits against attorneys despite a lack of privity. McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999) (party who entered into settlement agreement with lender, which could not be enforced after lender was declared insolvent, could bring suit against lender’s attorneys for representing that agreement would be enforceable). In doing so, we noted that the policy concerns expressed in Barcelo did not apply in the negligent misrepresentation context. Id. at 793. Such suits arise only in situations where an attorney has determined that communication with the third party is compatible with the attorney-client relationship and the attorney receives consent from the client to communicate with the non-client. Id. Thus, we held that allowing the third party to bring a negligent misrepresentation claim would not cause the client to “lose control over the attorney-client relationship,” a concern we expressed in Barcelo. Id. Additionally, we found that allowing negligent misrepresentation claims by non-clients would not subject attorneys to “almost unlimited liability,” because liability was limited to those situations in which the attorney provided information to a third party with the knowledge that the third party intended to rely on it. Id. at 794.

These principles apply here. Limiting estate-planning malpractice suits to those brought on behalf of a client’s estate by a personal representative will prevent the client from “losing control of the attorney-client relationship,” because the interests of the estate—which merely “stands in the shoes” of the client after death—are compatible with the client’s interests. Additionally, limiting the class of potential estate-planning malpractice claimants to the personal representatives of a client’s estate will ensure that estate-planning attorneys are not subject to “almost unlimited liability.”

Finally, we note that precluding both beneficiaries and personal representatives from bringing suit for estate-planning malpractice would essentially immunize estate-planning attorneys from liability for breaching their duty to their clients. As the Barcelo dissent noted, however, allowing estate-planning malpractice suits may help “provide accountability and thus an incentive for lawyers to use greater care in estate planning.” 923 S.W.2d at 580 (Cornyn, J., dissenting). Limiting estate-planning malpractice suits to those brought by either the client or the client’s personal representative strikes the appropriate balance between providing accountability for attorney negligence and protecting the sanctity of the attorney-client relationship.

III

Conclusion

The Terks—in their capacity as personal representatives of their father’s estate—may maintain an estate-planning malpractice claim against the Attorneys. We therefore reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 60.2(d).

______________________________

Wallace B. Jefferson

Chief Justice

OPINION DELIVERED: May 5, 2006

^[1] See Robinson v. Benton, 842 So. 2d 631, 637 (Ala. 2002); Pettus v. McDonald, 36 S.W.3d 745, 751 (Ark. 2001); Nevin v. Union Trust Co., 726 A.2d 694, 701 (Me. 1999); Noble v. Bruce, 709 A.2d 1264, 1278 (Md. 1998); Swanson v. Ptak, 682 N.W.2d 225, 231 (Neb. 2004); Deeb v. Johnson, 566 N.Y.S.2d 688, 689 (N.Y. App. Div. 1991); Simon v. Zipperstein, 512 N.E.2d 636, 638 (Ohio 1987); Copenhaver v. Rogers, 384 S.E.2d 593, 595 (Va. 1989).

^[2] The definition of “personal representative” includes an "executor, independent executor, administrator, independent administrator, [or] temporary administrator, together with their successors." Tex. Prob. Code § 3(aa).

^[3] A number of other jurisdictions have allowed legal malpractice claims to survive a decedent. See, e.g., Loveman v. Hamilton, 420 N.E.2d 1007, 1008 (Ohio 1981) (holding that, regardless of whether a legal malpractice action sounds in contract or tort, “the gist of the action...is the attorney’s breach of his contractual obligation to represent his client”); see also Jones v. Siesennop, 371 N.E.2d 892, 895 (Ill. App. Ct. 1977) (action for legal malpractice could be construed as “personal property” within the meaning of the state’s survival statute); McStowe v. Bornstein, 388 N.E.2d 674, 677 (Mass. 1979); Johnson v. Taylor, 435 N.W.2d 127, 129 (Minn. Ct. App. 1989); Newbach v. Giaimo & Vreeburg, 618 N.Y.S.2d 307, 308 (N.Y. App. Div. 1994) (legal malpractice claim survives in favor of estate when decedent was injured by attorney’s negligence during his lifetime).

^[4] Some states have used similar reasoning in determining that estate planning malpractice claims do not survive, and a few of those courts have held that language in their state’s survival statute necessitated such a result. See McDonald v. Pettus, 988 S.W.2d 9, 15 (Ark. 1999) (personal representative could not bring tort-based malpractice claim on behalf of decedent; Arkansas’s survival statute required decedent suffer injury or damages prior to death, but injury or damages caused by estate-planning malpractice did not occur until will took effect after death); Rutter, 568 S.E.2d at 695 (no survival action because claim did not “exist” prior to death—as required by Virginia’s survival statute—since the client’s estate did not suffer damage or injury until after client’s death); see also Brewer v. Davis, 593 So. 2d 67, 68 (Ala. 1991) (state’s survival statute precluded survival of a tort-based malpractice action that was not filed until after client’s death). Other jurisdictions, however, have held such claims do not survive as a matter of common law. See Deeb, 566 N.Y.S.2d at 689 (in New York, malpractice claim did not survive because estate did not incur damages until after client’s death); Heyer v. Flaig, 449 P.2d 161, 165 (Cal. 1961) (noting that “the executor of an estate has no standing..., since in the normal case the estate is not injured by [negligent estate planning] except to the extent of the [attorney’s] fees paid”).

^[5] We note that, while an injury occurred during the decedent’s lifetime for purposes of determining survival, the statute of limitations for such a malpractice action does not begin to run until the claimant “discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of [the] cause of action.” Apex Towing Co. v. Tolin, 41 S.W.3d 118, 121 (Tex. 2001); Willis v. Maverick, 760 S.W.2d 642, 646 (Tex. 1988); see also Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997) (statute of limitations for breach of fiduciary duty claim does not begin to run until claimant “knew or should have known of facts that in the exercise of reasonable diligence would have led to the discovery of the wrongful act”). In this case, the “claimant” may be either the decedent or the personal representative of the decedent’s estate.

^[6] See Stanley L. & Carolyn M. Watkins Trust v. Lacosta, 92 P.3d 620, 625 (Mont. 2004) (citing Espinosa v. Sparber, Shevin, Shapo, Rosen & Helbronner, 612 So. 2d 1378, 1380 (Fla. 1993)); Hosfelt v. Miller, No. 97-JE-50, 2000 Ohio App. LEXIS 5506, at *17 (Ohio Ct. App. Nov. 22, 2000) (holding that a “legal malpractice claim arising from errors by an attorney in rendering estate-planning services is properly brought by the personal representative of the estate when excess estate taxes are paid by the estate in contravention of the decedent’s intended estate plan”); Sizemore, 719 P.2d at 503 (administrator of estate in Oregon could sue estate-planning attorneys to recover costs incurred by the estate during litigation concerning a negligently-drafted will).

^[7] A testator may intentionally structure the estate in a way that does not minimize tax liability. Thus, courts should not presume that the testator intended to minimize tax liability; rather, it is the complaining party’s burden to present evidence of this intent.

^[8] For example, a spouse that is both a beneficiary and personal representative may argue that, if the estate-planning attorney had not committed malpractice, the spouse would have received a larger inheritance and the decedent’s estate would have suffered a lower tax burden, because the estate could have taken better advantage of the unlimited marital tax deduction. Under our holding today, a personal representative could maintain such a claim only if the representative established that the estate-planning attorney negligently failed to structure the estate in accordance with the testator’s wishes, and the estate incurred damages as a result.

CCISD: Freedom of Information Request: The process the CCISD Board used is unethical and unfair.

2007-05-20T04:44:00.000-07:00

CCISD: Freedom of Information Request: The process the CCISD Board used is unethical and unfair.

CCISD: Freedom of Information Request: The process the CCISD Board used is unethical and unfair.

Freedom of Information Request

This Publication request any and all communications including email and written correspondence from one week before Trustee Harry Williams resigned.

Must I formalize it on Monday?

Think I am bluffing?

You gotta ask yourself

Do you feel lucky?

Well Do ya?

Go ahead.........

You guys get the idea?

Now, don't go and seek the OAG's opinion as it will delay our children.

Just fess up and conduct business with honor and integrity and at least give us an appearance of due process. Not one black appointment. You guys are definitely walking on thin ice or maybe already fallen through but just don't know it. Such inadequacy is unacceptable.

CORPUS CHRISTI - CCISD school board members interviewed five candidates Friday to fill the board position vacated by Reverend Harry Williams.

The school board said it will set another meeting to discuss the finalists, and will possibly make a decision then, but still no word on when that would be.

Williams served the school board for more than seven years before resigning last month.

Nick Adame

"Do not be a disservice to our community and choose because this guy is my friend or this guy is my business associate," Dr. Nick Adame said. "I don't want to hear that. I want to hear that we're going to choose somebody because they're going to do right for the community."

Last week, the board narrowed the list of 20 candidates to five

Kenedeno:

Where is the criteria the process for "narrowing the list"?

The process the CCISD Board used is unethical and unfair. Every single applicant took the time to fill out an application, and the thought process for the letter of interest and update of their resume and references. For all intensive purposes this CCISD Board just threw that work product into the trash can while opting for business partners, friends cronies and industry allies.

It is not about the 5 selected it is about how the 5 were selected. It is not about Barrera or Prezas or Bill Clark or Lucy Rubio.

It is about a change of policy where policy is defined by processes of the past. Lucy is the only one with the guts to make the motion, "for the board to scrap the current process and start over. There was no second to the motion." Are there others in that room who agree with her, but politically, they are bound & gagged. The current process is in conflict with current policy. The current process is now a civil rights issue. Is that what CCISD wanted, another Cisneros v CCISD?

We have 19 Candidates who deserve Equal Opportunity and fair consideration. It is called due process.

1. Herbert Cromwell Arbuckle, III Retired Teacher
2. Rolando G. Barrera Insurance Agent
3. Tony C. Diaz, Ed.D. Retired CCISD Administrator
4. Victor Frazier, Ed.D. Minister and University Instructor
5. Cezar Galindo Business Owner and College Instructor
6. Marsha Lynn Grace Professor of Education
7. Coretta Graham Lawyer
8. Helen Gurley, Ph.D. Educator, Director of Academics
9. Patricia Harris Educator
10. Robert Elliott Jones Pastor and Business Manager
11. Deborah W. Johnson Retired Firefighter
12. Bradford Lee Kisner Director of Music and Fine Arts
13. Verna Faye Portis Retired CCISD Administrator
14. Raul R. Prezas, Ed.D. College Professor
15. Norman Haden Ransleben Certified Public Accountant
16. Woodrow Mac Sanders Medical Social Worker
17. Ronald G. Sepulveda Athletic Aquatic Superintendent
18. George Wetzel Retired Public School Administrator/Consultant
19. Goldie Lamarr Wooten Retired Educator

Rubio has said she disagrees with the selection process and would have preferred to use a scoring system instead.

Trustees selected the five candidates to be interviewed by each nominating one from a pool of 20 applicants.

We elect you guys to represent the district with honor & integrity

But before trustees interviewed the first candidate, trustee Lucy Rubio motioned for the board to scrap the current process and start over. There was no second to the motion.

Rubio has said she disagrees with the selection process and would have preferred to use a scoring system instead.

CCCT Editorial

The trustees' refusal to lay out the cards is beyond irritating; it borders on the outrageous.

Particularly disturbing is the fact that three new trustees elected last year - Carol Scott, John Longoria and Dwayne Hargis, all of whom emphasized their intent to bring new openness to the board - appear to have bought into the mum's-the-word ethos that has dominated this exercise.

To be sure, they (and their colleagues) could, and should, reverse their field.

CCISD Trustees: Pick and choose Policy Making with malice. Shame on YOU.

CORPUS CHRISTI - CCISD school board members have decided not to change their policy which forbids seniors who fail the TAKS from graduating.

One parent we spoke with Thursday said the policy didn't make sense, because while students who fail the TAKS test during the school year aren't allowed to take part in graduation ceremonies. The same doesn't hold true for summer school grads. They're allowed to participate in summer graduation ceremonies without knowing whether they passed the test.

The decision didn't sit well with some parents and students.

School board member Lucy Rubio had hoped to amend the policy, and allow seniors who failed the TAKS to at least walk in with their class during may commencement. But other school board members didn't agree.

Nueces De La Parra: Nobody kicked Joe Elizondo off of the CCREDC Board. He was inebriated and "with" females not his wife. Ask Denise about the "Bache

2007-05-03T04:29:00.000-07:00

Nueces De La Parra: Nobody kicked Joe Elizondo off of the CCREDC Board. He was inebriated and "with" females not his wife. Ask Denise about the "Bachelorettes' dancing w/ her hubby?

If the situation was reversed I would definitely be the bad guy. Maybe I should go yell at Juan's next event "WHO GIVES A F//K" and chant the CCREDC mantra Chorus. "JUAN MORE" "JUAN MORE" and ask him if he remembers? Juan must be held to a higher standard. Keep the reigns tight on him and everytime he starts to veer byte his a$$.

LOL

Joe Elizondo, surely he is a gentle man and a member of our leadership INFRASTRUCTURE? However, there must be HOUSECLEANING and the "Pulling of Weeds" that poisons us from the Top Down.

Elizondo began chanting JUAN MORE, JUAN MORE over and over (increasing in menacing heckle tone). Everyone ignored him so he continued with the JUAN MORE, JUAN MORE escalation. Then the Guitar Guy with the HAt "straight off of the sunset strip" was suggesting songs (lead ins). Elizondo yelled, "WHO GIVES A FUCK" and some other MINUTIA (uncalled for). He was directing his disrespect at the stage. My wife & I at the same time said, "HEY" and we turned to him with a meeting of the eyes. His group separated and Elizondo departed in a new truck. The others with him were friendly & charming before and after.

Feistel networks were first seen commercially in IBM's Lucifer cipher, designed by.......

2007-02-18T02:09:00.000-08:00

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Feistel cipher
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In cryptography, a Feistel cipher is a block cipher with a particular structure, named after IBM cryptographer Horst Feistel; it is also commonly known as a Feistel network. A large proportion of block ciphers use the scheme, including the Data Encryption Standard (DES). The Feistel structure has the advantage that encryption and decryption operations are very similar, even identical in some cases, requiring only a reversal of the key schedule. Therefore the size of the code or circuitry required to implement such a cipher is nearly halved.

Feistel networks and similar constructions are product ciphers, and so combine multiple rounds of repeated operations, such as:

* Bit-shuffling (often called permutation boxes or P-boxes)
* Simple non-linear functions (often called substitution boxes or S-boxes)
* Linear mixing (in the sense of modular algebra) using XOR

to produce a function with large amounts of what Claude Shannon described as "confusion and diffusion".

Bit shuffling creates the diffusion effect, while substitution is used for confusion.
Contents
[hide]

* 1 History
* 2 Theoretical Work
* 3 Construction Details
* 4 List of Feistel ciphers
* 5 References
* 6 See also

[edit] History

Feistel networks were first seen commercially in IBM's Lucifer cipher, designed by Feistel and Don Coppersmith. Feistel networks gained respectability when the US Federal Government adopted the DES (a cipher based on Lucifer, with changes made by the NSA). Like other components of the DES, the iterative nature of the Feistel construction makes implementing the cryptosystem in hardware easier (particularly on the hardware available at the time of DES' design). Things have changed through the decades as hardware has become more capable.

[edit] Theoretical Work

Many modern symmetric block ciphers are based on Feistel networks, and the structure and properties of Feistel ciphers have been extensively explored by cryptographers. Specifically, Michael Luby and Charles Rackoff analyzed the Feistel block cipher construction, and proved that if the round function is a cryptographically secure pseudorandom function, with Ki used as the seed, then 3 rounds is sufficient to make the block cipher a pseudorandom permutation, while 4 rounds is sufficient to make it a "strong" pseudorandom permutation (which means that it remains pseduorandom even to an adversary who gets oracle access to its inverse permutation).[1] Because of this very important result of Luby and Rackoff, Feistel ciphers are sometimes inaccurately called Luby-Rackoff block ciphers. Further theoretical work has generalized the construction somewhat, and given more precise bounds for security.[2]

[edit] Construction Details

The basic operation is as follows:

Split the plaintext block into two equal pieces, (L0, R0)

For each round i =1,2,\dots,n, compute

Li = Ri − 1
R_i = L_{i-1} \oplus f(R_{i-1}, K_{i-1})

where f is the round function and Ki is the sub-key.

Then the ciphertext is (Ln, Rn).

Decryption is accomplished via

Ri − 1 = Li
L_{i-1} = R_i \oplus f(L_i, K_i)

One advantage of this model is that the round function f used does not have to be invertible, and can be very complex.

This diagram illustrates both encryption and decryption. Note the reversal of the subkey order for decryption; this is the only difference between encryption and decryption:

Image:Feistel.png

Unbalanced Feistel ciphers use a modified structure where L0 and R0 are not of equal lengths. The Skipjack encryption algorithm is an example of such a cipher. The Texas Instruments Digital Signature Transponder uses a proprietary unbalanced Feistel cipher to perform challenge-response authentication.[3]

The Feistel construction is also used in cryptographic algorithms other than block ciphers. For example, the Optimal Asymmetric Encryption Padding (OAEP) scheme uses a simple Feistel network to randomize ciphertexts in certain asymmetric key encryption schemes.

[edit] List of Feistel ciphers

Feistel or modified Feistel: Blowfish, Camellia, CAST-128, DES, FEAL, KASUMI, LOKI97, Lucifer, MARS, MAGENTA, MISTY1, RC5, TEA, Triple DES, Twofish, XTEA

Generalised Feistel: CAST-256, MacGuffin, RC2, RC6, Skipjack

[edit] References

1. ^ M. Luby and C. Rackoff. "How to Construct Pseudorandom Permutations and Pseudorandom Functions." In SIAM J. Comput., vol. 17, 1988, pp. 373-386.
2. ^ Jacques Patarin, Luby-Rackoff: 7 Rounds Are Enough for Security, Lecture Notes in Computer Science, Volume 2729, Oct 2003, Pages 513 - 529
3. ^ S. Bono, M. Green, A. Stubblefield, A. Rubin, A. Juels, M. Szydlo. "Security Analysis of a Cryptographically-Enabled RFID Device". In Proceedings of the USENIX Security Symposium, August 2005. (pdf)

[edit] See also

* Cryptography
* Stream cipher
* Substitution-permutation network

Block ciphers
v • d • e
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A listening Heart ....is to stay and see .....but yet pay dreaming you are going to get money for ....Justice for all blood relatives....not just you!

2007-02-07T01:45:00.000-08:00

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Sarita''s secret: once the seat of a famous ranching empire, this sleepy town has kept hidden for eighty years the answer to one of South Texas''s greatest riddles: is Ray Fernandez, the descendant of a Mexican maid, the heir to the gigantic Kenedy fortune?(Biography)
Publication Date: 01-SEP-04
Publication Title: Texas Monthly
Format: Online - approximately 6574 words
Author: Cartwright, Gary
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Description
THE TRAIN DOESN'T STOP IN SARITA ANYMORE. They tore down the depot years ago, along with the hotel, the lumberyard, and the cotton gin. It has been a century since anyone referred to this part of South Texas as "the French Reviera of Texas," as land speculators once did. Driving a desolate stretch of U.S. 77, twenty miles south of Kingsville, I almost missed Sarita entirely: The only visible landmarks are a green sign identifying the town, a blinking yellow light, and a water tower off in some distant trees. Sarita has an elementary school and a Catholic church but no shops, cafes, or even a convenience store. The closest supermarket is in Kingsville; the nearest major medical center is in Corpus Christi, sevently miles north; and the pharmacy of choice is in Nuevo Progreso, Mexico, an hour-and-thirty-minute drive for cheap drugs. The only place to spend the night is a one-suite bed-and-breakfast run by Patti Fain, who is also the justice of the peace; her husband, Mike, a retired game warden, is the local gunsmith. The only source of soft drinks is a vending machine at the Kenedy County courthouse, a dim cavern of mostly empty hallways and faded photographs. When I was there in June, a dog slept in the dusty street between the courthouse and the former home of the old Kenedy Pasture Company, now a museum.

Sarita is not a ghost town in the usual sense. But the ghosts of the Kenedys--Captain Mifflin Kenedy and his star-crossed heirs, especially his two grandchildren, John G. Kenedy Jr. and Sarita Kenedy East, for whom this unincorporated county seat is named--hover like the hot blue sky over the tiny town of around 250, which appears as a footnote to the huge ranch that the captain founded after the Civil War. Though all the Kenedys are dead, their legend is as alive as the front page of your morning newspaper. It crackles with the legacy of the patron system: tales of stolen land and inheritance, racial and religions conflict, endless courtroom battles, violence, avarice, and shadowy family secrets, all of which connect the cultures and histories of South Texas and northern Mexico.

Mifflin Kenedy was one of the three great ranchers of far South Texas, the others being his close friends Richard King and Major John Armstrong. Though he was a Quaker from Pennsylvania, he never let religion get in his way. He met and fell in love with a beautiful 26-yearold devout Catholic from Mier, Mexico, Petra Vela de Vidal. Depending on which version of history you believe, Petra was the wife, mistress, or widow of Luis Vidal, a captain in the Mexican army. Some historians believe that Kenedy arranged the murder of Luis, who had already fathered at least six children by Petra. Kenedy moved his bride to Brownsville, where they had six more children. Most of their sons lived fast and died young. Tom Kenedy, the eldest, was killed by a deputy sheriff in Brownsville whose estranged wife the young ranching heir was courting. Adrian Vidal, Mifflin's adopted son, was executed in a Mexican prison while the captain stood helplessly outside the prison walls. After driving a herd of cattle to Dodge City and getting into a fight with the town's mayor, James Kenedy barely survived a shoot-out with a posse that included Wyatt Earp and Bat Masterson, only to succumb later to typhoid fever. When Mifflin died intestate, in 1895, the 400,000-acre ranch ended up in the hands of his sole surviving son, John Gregory Kenedy, known as Don Gregorio.

The dynasty might have gone on indefinitely, except that neither of Don Gregorio's two surviving children produced an heir. John G. Kenedy Jr., known all his life as Johnny, was a boozer and a womanizer who died in 1948 in Saltillo, the home of his Mexican-born wife, Elena, who inherited his half of the fortune. According to family legend, Johnny was rendered sterile by a childhood ease of the mumps, and his sister, Sarita, the last of the Kenedys, died childless in 1961, leaving the bulk of her estate to the John G. and Marie Stella Kenedy Memorial Foundation, named for her parents. Elena died in 1984, leaving her estate to the John G. Kenedy Jr. Charitable Trust. The two institutions are handled by administrators and lawyers; together, they control assets valued between $500 million and $1 billion, of which about 80 percent of the income goes to the Catholic Diocese of Corpus Christi, the Chrisms Spohn Health System, and various Catholic charities. In the final years of her life, Sarita was attended by a number of ambitious men, including clerics, with designs on her millions. "Vultures," she called them. Lawsuits over her fortune began two months after her death and continue to this day.

In the heyday of the Kenedys, the ranch headquarters was located far from town, down along, narrow road toward the coast that dead-ended at La Casa Grande, the thirty-room family estate. Sarita bequeathed the house and the 10,000 acres surrounding it, including the family chapel and cemetery, to the Missionary Oblates of Mary Immaculate. Today the Oblate fathers use the property--since reduced by settlements to 1,010 acres--as a religious retreat called Lebh Shomea House of Prayer. ("Lebh shomea" is Hebrew for "listening heart.") This veneer of peace and tranquillity is profoundly deceptive, however. One of several lawsuits still pending threatens to expose the darkest secret of all: that Johnny Kenedy may have sired a child by one of the Kenedy maids in 1925. The allegation started bubbling to the surface on Mother's Day, 2000, with a chance remark to a Corpus Christi man named Ray Fernandez by his dying grandmother. Speaking in Spanish, she told her grandson: "You look just like your grandfather Johnny Kenedy." Assuming she was talking about the late son of the late president, he dismissed it as the babbling of an old woman with dementia, dying of bone cancer.

But as Ray began...to listen to his ....he was being cheated by those money men and those doing their bidding.

When Sarita died, she gave the Kenedy family home and the surrounding area to the Missionary Society of the Oblate Fathers of Texas.

2007-02-07T01:27:00.000-08:00

Sunday, July 8, 2001
Kenedy Foundation comes out against bombing range
Foundation owns some of the targeted land; board cites community's concerns

By Stephanie L. Jordan
Caller-Times

England

A significant player has joined the roster of those opposed to the Navy opening a bombing range on ranch land in Kenedy County.
But local supporters of the proposal say the deal's not dead unless the Navy says it has lost interest in the 222,000-acre tract.
Citing overwhelming local opposition, board members of the John G. and Marie Stella Kenedy Memorial Foundation, which owns some of the targeted land, on Friday wrote a letter to Navy Secretary Gordon England objecting to the proposed military training area.
"It has become quite apparent that the local community is overwhelmingly opposed to the suggested proposal," wrote foundation Vice President Dr. E.B. Groner."The foundation requests their wishes be respected."
Groner

Copies of the letter were sent to President Bush, Vice President Dick Cheney, Gov. Rick Perry and 11 other officials.
Open-minded at first
Foundation members were surprised by news that the Navy was considering Kenedy County as possible site to replace a controversial range on the Puerto Rican island of Vieques, but remained open minded about the idea at first, said Richard Leshin, the foundation's attorney.
"The foundation was just learning about this and was leaving all of the options open," Leshin said.
"But because of the local opposition the board decided to (write the letter)."
The foundation and the John G. Kenedy Jr. Charitable Trust own more than 400,000 acres of land combined. Both donate profits to area charities.
The foundation owns about 40,000 acres of the 222,000-acre site, said Kenedy County Judge J.A. Garcia Jr., who was named the foundation board's president in February.
Nine of the board's 13 members held a special meeting Friday both in person and by telephone to discuss the issue.
'An area of concern'
Actual Letter
The Honorable Gordon R. England
Secretary of the Navy
Washington, D.C., 20350-1000

Re: Suggested Navy Training Area Kenedy County, Texas

Dear Secretary England:

On behalf of The John G. and Marie Stella Kenedy Memorial Foundation, please be informed that the Foundation respectfully objects to the suggested military training area in Kenedy County, Texas. The reasons for this objection, among others, center around the general consensus of the local citizens of Kenedy County and surrounding areas as well as the consensus of the Kenedy County Commissioners Court.

It has become quite apparent that the local community is overwhelmingly opposed to the suggested proposal. The Foundation requests their wishes be respected.

Thank you for the consideration of the Foundation’s objections.

Sincerely,

E.B. Groner, M.D.
Vice President
Cc: President George W. Bush
Vice-President Dick Cheney
Secretary of Defense Donald Rumsfeld
Secretary of Interior Gayle Norton
Director of EPA Christine Todd Whitman
Senator Phil Gramm
Senator Kay Bailey Hutchison
Representative Solomon Ortiz
Governor Rick Perry
Land Commissioner David Dewhurst
Senator Carlos Truan
Representative Irma Rangel
Attorney General State of Texas John Cornyn
J.A. Garcia Jr. County Judge - County of Kenedy

"We felt this was an area of concern, especially with it being so close to Sarita," Garcia said. "I think the foundation was sensitive to the residents of Sarita and also the county. I didn't hear from anyone who was for the (practice range)."
President Bush decided to stop training on Vieques by 2003 and England is expected to soon appoint a committee to study possible replacements.
The foundation's letter was only the latest in a series of hits the proposal has taken.
'Deeply troubled'
Kenedy County Commissioners voted last week to oppose the idea. Sen. Kay Bailey Hutchison said last week she would not support the idea and Gov. Rick Perry on Friday said he was "deeply troubled" by the environmental damage a bombing range might cause.
A coalition of environmental groups has vowed to fight the idea and a study commissioned by the Navy rated the Kenedy County site lower than some other options.
Calling it quits
Some local supporters of the proposal called it quits after Hutchison's statement and said the foundation's letter was just more proof that the deal was dead.
"We were expecting (the letter) because Judge Garcia is chairman of the board of the Kenedy foundation," said Corpus Christi Mayor Loyd Neal.
'Closing the loop'
"As soon as the commissioner's court said what they did, as far I was concerned, it was dead. As soon as I saw that and what Senator Hutchison did, I thought it was over. I assume that's just closing the loop for them."
Navy officials have said they are still interested in the Kenedy County site and some proponents say the deal's alive as long as that's true.
"The Navy has known for a couple of months that the land would have to be condemned. It looks to me that the Navy is still interested in the site," said Pat Vetetoa retired Marine Corps officer and one architect of the proposal.
Power of eminent domain
Gary Bushell, a consultant with the Corpus Christi Chamber of Commerce who was an early proponent of the idea, said he didn't want to comment about the foundation's letter.
To put the bombing range in Kenedy County, the federal government would have to use its power of eminent domain and condemn the ranchland.
Both the trust and the foundation are prohibited from selling the land.
Foundation's largest asset
The land in Kenedy County is the foundation's single largest asset, said Daniel Meaney, who has been on the foundation's board since it began and now serves as the board's treasurer.
Meaney said he didn't know what would happen to the foundation if the government were to condemn the land and pay the foundation market value for it.
"When you get rid of your assets, there's no telling what would happen," said Meaney, who was acquainted with Sarita Kenedy East, who had owned the land.
Meaney said that over the years there has been interest from people wanting the buy pieces of the land.
Land's worth
"You can't own a large ranch without speculation and proposals," Meaney said. "But (the proposals have) always been nebulous, nothing positive."
The San Pedro Kenedy Ranch, one of Kenedy County's largest employers, is located on the proposed bombing site.
The land is filled with valuable oil and gas drilling operations and cattle.
Estimates of the land's worth run into the hundreds of millions of dollars.
By targeting Kenedy County, the government is getting involved in the intricate Kenedy family history.
Kenedy family history
The massive Kenedy Ranch, founded by former steamboat operator Mifflin Kenedy, was split in two after the death of John G. Kenedy Sr. and his wife Marie Stella Turcotte.
Half of the almost half-million-acre ranch went to his daughter, Sarita Kenedy East, while the other half went to John G. Kenedy Jr., who died in 1948, and his wife Elena, who died in 1984.
Sarita and Elena were deeply religious women, neither had children, and both willed their estates to charitable endeavors.
When Sarita died, she gave the Kenedy family home and the surrounding area to the Missionary Society of the Oblate Fathers of Texas.
"I don't think Sarita would have liked this," Meaney said of the proposal.

Contact Stephanie L. Jordan at 886-3724 or jordans@caller.com

The fruits of a $1.5 million construction and renovation contract the diocese awarded to Fulton/Coastcon Construction

2006-08-02T02:47:00.000-07:00

Diocese has more to teach

128 freshmen have enrolled at new Catholic school

By Israel Saenz Caller-Times
July 31, 2006

Wearing a T-shirt, shorts and sandals, Ricardo Almendarez spent part of his Sunday afternoon showing his wife an empty but soon-to-be bustling campus.

"We still have time to do some last-minute things," the John Paul II High School principal said. "As principal, you worry a little."

Even for the 61-year-old Almendarez, who has served as principal at Browne Middle School, Moody and King high schools and the Alternative High School, this will be a first.

He will be the inaugural principal for the Diocese of Corpus Christi school, which will welcome 128 freshmen on Tuesday with a celebration of Mass by Bishop Edmond Carmody and the unveiling of a John Paul II statue.

For Almendarez and teachers, a few loose ends needed to be taken care of as opening day grew near. Teachers spent last week and all day Saturday preparing classrooms for the first day of classes. Workers were setting up a few classrooms Sunday as well.

Almendarez said renovations on some of the rooms started later than on others because the diocese had not expected to attract a full class.

"We thought maybe about 75 students would be enrolled," he said. "After about two months, we noticed it was going to be more than we anticipated, so we decided to do all of them."

Work was originally set for only six classrooms, which became all 10 available on the campus. Almendarez said the remaining rooms will be ready by Wednesday.

For math teacher Stephanie Fling, spending eight hours on campus to set up computers and take inventory Saturday was not enough. She kept her spirits up as she cleaned her classroom on Sunday.

"It's gonna be history," Fling said of the school's opening.

The John G. and Marie Stella Kenedy Memorial Foundation has committed $2.5 million to the school to go toward operations and scholarships in the next four years. The diocese has budgeted $600,000 per year for operations.

The fruits of a $1.5 million construction and renovation contract the diocese awarded to Fulton/Coastcon Construction was visible on the 64-acre campus that also features a gymnasium and a chapel. There are plans to re-sod the interior campus grounds.

John Paul II High School, named after the pontiff who died in April 2005, will be the diocese's first Catholic high school since Corpus Christi Academy, which closed in 1997 because of declining enrollment. The school joins Incarnate Word Academy as the only other Catholic high school in Corpus Christi.

So far, John Paul II High School's enrollment is on target, Almendarez said. He said the Diocese of Corpus Christi's goal was to bring in a freshman class of about 125 and work up to 500 students by the four-year point.

The school has a staff of 12 teachers, a secretary, registered nurse, librarian and chaplain. Some campus facilities are still in the works. Tennis courts should be completed sometime in August and a softball field will be ready in October.

With only a freshman class, John Paul II High School's sports teams will compete only against other high school's junior varsity teams for now. On Friday, the high school named four coaches for volleyball, basketball, tennis, track and football teams.

Almendarez, who ended his four-month long retirement to be the high school's first principal, said the school's mascot, the centurion, is especially relevant for the incoming class of freshman students. Centurions were Roman Empire army officers mentioned in Bible stories.

"Centurions had to work their way up in the army," Almendarez said. "That's our expectation for our ninth-graders."

Contact Israel Saenz at 886-3767

kfatso -what floor has a roof?

2006-07-17T03:29:00.000-07:00

Artist: Lou Rawls Lyrics
Song: You'll Never Find Lyrics

You'll never find, as long as you live
Someone who loves you tender like I do
You'll never find, no matter where you search
Someone who cares about you the way I do

Whoa, I'm not braggin' on myself, baby
But I'm the one who loves you
And there's no one else, no-oh-oh-oh-oh-oh-oh-oh one else

You'll never find, it'll take the end of all time
Someone to understand you like I do
You'll never find the rhythm, the rhyme
All the magic we shared, just us two

Whoa, I'm not tryin' to make you stay, baby
But I know some how, some day, some way
You are (you're gonna miss my lovin')
You're gonna miss my lovin' (you're gonna miss my lovin')
You're gonna miss my lovin' (you're gonna miss my lovin')
You're gonna miss, you're gonna miss my lo-o-ove

Whoa, oh, oh, oh, oh (you're gonna miss my lovin')
Late in the midnight hour, baby (you're gonna miss my lovin')
When it's cold outside (you're gonna miss my lovin')
You're gonna miss, you're gonna miss my lo-o-ove

You'll never find another love like mine
Someone who needs you like I do
You'll never see what you've found in me
You'll keep searching and searching your whole life through
Whoa, I don't wish you no bad luck, baby
But there's no ifs and buts or maybes

You're gonna, You're gonna miss (miss my lovin')
You're gonna miss my lovin' (you're gonna miss my lovin')
I know you're gonna my lovin' (you're gonna miss my lovin')
You're gonna miss, you're gonna miss my lo-o-ove

Whoa, oh, oh, oh, oh (you're gonna miss my lovin')
Late in the midnight hour, baby (you're gonna miss my lovin')
When it gets real cold outside (you're gonna miss my lovin')
I know, I know that you are gonna miss my lo-o-ove

Let me tell you that you're gonna miss my lovin'
Yes you will, baby (you're gonna miss my lovin')
When I'm long gon
I know, I know, I know that you are gonna miss

Childhaven Longitudinal Research Study

2006-07-14T21:16:00.000-07:00

Between 1980 and 1982 Childhaven conducted a research project to study the effectiveness of Therapeutic Child Care. A group of 60 children, who were under 2 years of age and had open Child Protective Services cases, were randomly assigned to a treatment or a control (non-treatment) group: half the children participated for 18 months in Childhaven's program (treatment group) and the other half received the existing social services available to CPS clients at that time (control group); e.g. regular child care, parenting classes, anger management, etc. The immediate research findings found that parents from the Childhaven program, when compared to the parents in the non-Childhaven group, were more positive, less abusive and sought more community help. Additionally, many of the children who received treatment at Childhaven changed dramatically during their 16-24 months of treatment - the withdrawn became outgoing, the agitated became calmer, and the angry became more peaceful.

Twelve years later, researchers revisited the children involved in the original research study. These children, now teenagers, were six times less likely to have committed a violent juvenile crime; they were better adjusted in school and less of a problem for the teachers. In addition, examination of their financial welfare records found that the Childhaven treatment group received half as much money in welfare cash grants, medical coupons and food stamps than the comparison group. The complete results of this study were published in the February 1998 volume of the journal Child Maltreatment. To request a copy please email robinb@childhaven.org.

N RE FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL BANK AND PABLO SUESS,...

2006-06-24T03:18:00.000-07:00

Page 1
NO.__________________
* * *
IN THE SUPREME COURT OF TEXAS
AUSTIN, TEXAS
* * *
IN RE FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA
SUESS KENEDY, DECEASED; FROST NATIONAL BANK AND PABLO SUESS,
TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST; AND
THE MISSIONARY OBLATE FATHERS OF TEXAS
* * *
PETITION FOR WRIT OF MANDAMUS
* * *
ADAMI, PAISLEY & APPELL, P.C.
J.G. Adami, Jr.
State Bar No. 00846500
601 East Main Street
P.O. Box 331
Alice, Texas 78333-0331
(361) 668-8101
(361) 668-8106 (telecopier)
OSBORNE & HELMAN, L.L.P.
Stephen Jody Helman
State Bar No. 09399500
Jeffrey T. Knebel
State Bar No. 11589000
301 Congress Avenue, Suite 1910
Austin, Texas 78701
(512) 542-2000
(512) 542-2011 (telecopier)
CROFTS & CALLAWAY, P.C.
Thomas H. Crofts, Jr.
State Bar No. 05099200
Jacqueline M. Stroh
State Bar No. 00791747
112 East Pecan, Suite 800
San Antonio, Texas 78205-1578
(210) 225-5551
(210) 225-7110 (telecopier)
CANALES & SIMONSON, P.C.
J. A. “Tony” Canales
State Bar No. 03737000
2601 Morgan Avenue
P. O. Box 5624
Corpus Christi, Texas 78465-5624
(361) 883-0601
(361) 884-7023 (telecopier)
ATTORNEYS FOR RELATORS, FROST NATIONAL BANK, FORMER EXECUTOR
OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL
BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR.
CHARITABLE TRUST
RELATORS RESPECTFULLY REQUEST ORAL ARGUMENT
Page 2
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
David R. Nelson
State Bar No. 00795556
Daniel McNeel Lane, Jr.
State Bar No. 00784441
300 Convent, Suite 1500
San Antonio, Texas 78205
(210) 281-7000
(210) 224-2035 (telecopier)
ATTORNEYS FOR RELATOR MISSIONARY OBLATE FATHERS OF TEXAS
RELATORS RESPECTFULLY REQUEST ORAL ARGUMENT
ii
Page 3
IDENTITY OF PARTIES AND COUNSEL
1. Relators
Frost National Bank, Former Executor of the Estate of Elena Suess Kenedy,
Deceased, and Frost National Bank and Pablo Suess, Trustees Of The John G.
Kenedy, Jr. Charitable Trust
Defendants Below
Missionary Oblate Fathers of Texas
Defendant Below
2. Counsel for Relators
J.G. Adami, Jr.
Adami, Paisley & Appell, P.C.
601 East Main Street
P.O. Box 331
Alice, Texas 78333-0331
-and-
J. A. “Tony” Canales
Canales & Simonson, P.C.
2601 Morgan Avenue
P. O. Box 5624
Corpus Christi, Texas 78465-5624
-and-
Stephen Jody Helman
Jeffrey T. Knebel
Osborne & Helman, L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
-and-
Thomas H. Crofts, Jr.
Jacqueline M. Stroh
Crofts & Callaway
A Professional Corporation
112 East Pecan, Suite 800
San Antonio, Texas 78205-1578
Attorneys for Relators Frost National Bank, Former Executor of the Estate of
Elena Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess,
Trustees Of The John G. Kenedy, Jr. Charitable Trust
iii
Page 4
David R. Nelson
Daniel McNeel Lane, Jr.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent, Suite 1500
San Antonio, Texas 78205
Attorneys for Relator Missionary Oblate Fathers of Texas
3. Co-Relator
The John G. and Marie Stella Kenedy Memorial Foundation
Defendant Below
4. Counsel for Co-Relator
Richard L. Leshin
Bruce S. Hawn
Welder, Leshin & Mahaffey, L.L.P.
800 North Shoreline Blvd., Suite 300N
Corpus Christi, Texas 78401
-and-
Ray Chester
Thomas O. Barton
McGinnis, Loch ridge & Kilgore, L.L.P.
919 Congress Avenue, Suite 1300
Austin, Texas 78701
-and-
Richard J. Hatch, Sr.
The Hatch Law Firm
802 North Carancahua, Suite 665
Corpus Christi, Texas 78470
-and-
Jorge C. Rangel
Jon D. Brooks
The Rangel Law Firm, P.C.
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
-and-
Mike Hatchell
Charles R. “Skip” Watson
Locke, Liddell & Sapp, L.L.P.
100 Congress Avenue, Suite 300
Austin, Texas 78701
Attorneys for Relator The John G. and Marie Stella Kenedy Memorial Foundation
iv
Page 5
5. Respondent
The Honorable Guy Herman
Probate Court, Kenedy County
Travis County Courthouse
P.O. Box 1748
1000 Guadalupe Room 217
Austin, Texas 78767
Statutory Probate Court Judge Assigned to the County Court of Kenedy County
6. Real Party in Interest
Ann M. Fernandez
Plaintiff Below
7. Counsel for Real Party in Interest
J. Bonner Dorsey
2100 The 600 Bldg.
P.O. Box 1122
Corpus Christi, Texas 78403
Sam A. Westergren
615 Leopard Street, Suite 516A
Corpus Christi, Texas 78476
Mark Schwartz
DuBois, Bryant, Campbell & Schwartz, L.L.P.
P.O. Box 909
Austin, Texas 78767
8. Other Parties Below
The State of Texas
Intervenor Below
ExxonMobil Corporation/ExxonMobil Oil Corporation
Defendant Below
v
Page 6
9. Counsel for Other Parties Below
John W. Vinson
Assistant Attorney General
Charitable Trusts Division
P.O. Box 12548
Austin, Texas 78711-2548
Attorneys for Intervenor Below Attorney General
John Matthew Sjoberg
Jackson, Sjoberg, McCarthy & Wilson, L.L.P.
711 West 7th Street
Austin, Texas 78701
-and-
Shannon H. Ratliff
Ratliff Law Firm, P.L.L.C.
600 Congress Avenue, Suite 3100
Austin, Texas 78701
Attorneys for Defendant ExxonMobil Corporation/ExxonMobil Oil Corporation
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TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL.....................................................................iii
TABLE OF CONTENTS ..................................................................................................vii
INDEX OF AUTHORITIES..............................................................................................ix
STATEMENT OF THE CASE .........................................................................................xii
STATEMENT OF JURISDICTION................................................................................xiii
ISSUE PRESENTED .......................................................................................................xiv
Issue No. 1:
Whether the trial court clearly abused its discretion in granting the
Real Party’s request to exhume the remains of John G. Kenedy, Jr.
for invasive DNA testing and whether mandamus relief is available
to protect the burial of the remains before they are disinterred?
The Respondent’s order is void and constitutes a clear abuse of
discretion because Respondent lacks jurisdiction to rule on
exhumation, Fernandez lacks standing to pursue disinterment, both
Kenedy relatives and the cemetery property owner object to
exhumation, Fernandez has made no showing of a compelling
interest or necessity for exhumation, any merits determination
should come after a ruling on the bills of review themselves, and
there are available less intrusive and drastic means of resolving the
litigation as a whole...............................................................................................xiv
STATEMENT OF FACTS..................................................................................................1
ARGUMENT AND AUTHORITIES .................................................................................1
I.
The Statutory Probate Court Has No Jurisdiction.........................................1
A.
The Statutory Probate Court Has No Jurisdiction Over the
Bills of Review Filed to Attack Final Judgments of the 105th
District Court, and Exhumation Cannot Be Ordered Before
Those Final Judgments Are Set Aside...............................................1
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B.
The Statutory Probate Court Judge Has No Jurisdiction to
Grant an Exhumation Pursuant to Section 711.004 of the
Texas Health and Safety Code...........................................................5
II.
The Plaintiff Has No Standing to Request Exhumation At This Time.........6
III. Respondent Abused Its Discretion In Ordering a Determination on
the Merits Before Determining Success on the Bills of Review
Remaining in Its Court and Pending in the District Court............................7
IV. The Real Party Failed to Give the Required Notice......................................9
A.
Insufficient Notice of the Exhumation Was Given to the
Decedent’s Next of Kin......................................................................9
B.
Parties Identified in Section 711.004 Have Objected to
Fernandez’s Exhumation Request......................................................9
V.
The Respondent Clearly Abused His Discretion in Ordering
Exhumation .................................................................................................10
A.
Disinterment Is Highly Disfavored by Texas Courts and Is
Against Public Policy Without a Showing of Necessity or
Compelling Reason..........................................................................10
B.
The Real Party Has Made an Insufficient Showing of a
Compelling Reason or Necessity for Disinterment..........................11
C.
As a Result of Texas’ Attitude Toward Disinterment, Less
Extreme Measures Should be Tried First.........................................13
VI. Mandamus Is An Appropriate Remedy Here..............................................15
PRAYER ...........................................................................................................................15
VERIFICATION...............................................................................................................17
CERTIFICATE OF SERVICE..........................................................................................18
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INDEX OF AUTHORITIES
Page
Cases
Acker v. Texas Water Comm’n,
790 S.W.2d 299 (Tex. 1990) .........................................................................................12
Amanda v. Montgomery,
877 S.W.2d 482 (Tex. App. -- Houston [1st Dist.] 1994, orig. proceeding)...................4
American Nat’l Ins. Co. v. B. Gonzalez & Co.,
72 S.W.2d 388 (Tex.Civ.App. -- San Antonio 1934, writ dism’d)...............................12
American Nat’l Ins. Co. v. Nuckols,
187 S.W. 497 (Tex.Civ.App. -- San Antonio 1916, no writ) ........................................12
Atkins v. Davis,
352 S.W.2d 801 (Tex.Civ.App. -- Fort Worth 1961, no writ) ....................................5, 6
Baker v. Goldsmith,
582 S.W.2d 404 (Tex. 1979) ....................................................................................7-8, 8
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) .............................................................................................6
Burnett v. Surratt,
67 S.W.2d 1041 (Tex.Civ.App. -- Dallas 1934, writ ref’d) ..........................................10
Crown Central Petroleum Corp. v. Garcia,
904 S.W.2d 125 (Tex. 1995) (orig. proceeding) ...........................................................14
Curlin v. Curlin,
228 S.W. 602 (Tex.Civ.App. -- Amarillo 1921, no writ)..............................................11
Eddowes v. Oswald,
621 S.W.2d 843 (Tex. App. -- Fort Worth 1981, no writ) ..............................................6
First Nat'l Bank of Kerrville v. Hackworth,
673 S.W.2d 218 (Tex. App. -- San Antonio 1984, no writ)..........................................12
Fowlkes v. Fowlkes,
133 S.W.2d 241 (Tex.Civ.App. -- Galveston 1939, no writ)........................................12
Hildyard v. Fannel Studio,
547 S.W.2d 332 (Tex. App. -- Corpus Christi 1977, writ ref’d n.r.e.)............................8
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Holland v. Taylor,
153 Tex. 433, 270 S.W.2d 219 (1954)............................................................................6
Hoover v. Sims,
792 S.W.2d 171 (Tex. App. -- Houston [1st Dist.] 1990, writ denied)...........................9
In re Attorney General of Texas,
2001 WL 8547 (Tex. App. -- San Antonio 2001, orig. proceeding)...............................7
In re the John G. and Marie Stella Kenedy Memorial Foundation,
2004 WL 1335849 (Tex. App. -- Corpus Christi, June 16, 2004, orig. proceeding)......1
In re Southwestern Bell Tel. Co.,
35 S.W.3d 602 (Tex. 2000) (orig. proceeding) .............................................................15
Males v. Wimberly,
107 S.W.2d 466 (Tex.Civ.App. -- Dallas 1937, no writ)................................................8
McBride v. Clayton,
140 Tex. 71, 166 S.W.2d 125 (1942)............................................................................12
McCann v. Ward County,
423 S.W.2d 339 (Tex.Civ.App. -- El Paso 1967, writ ref’d n.r.e.) .................................8
McMahan v. Naylor,
855 S.W.2d 193 (Tex. App. -- Corpus Christi 1993, writ denied)..................................4
Samsel v. Diaz,
659 S.W.2d 143 (Tex. App. -- Corpus Christi 1983, no writ)...........................11, 12, 13
Schwartz v. Jefferson,
520 S.W.2d 881 (Tex. 1975) ...........................................................................................7
Spears v. Haas,
718 S.W.2d 756 (Tex. App. -- Corpus Christi 1986, orig. proceeding)..........................4
Tilton v. Marshall,
925 S.W.2d 672 (Tex. 1996) .........................................................................................14
TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913 (Tex. 1991) .........................................................................................14
Trevino v. Turcotte,
564 S.W.2d 682 (Tex. 1978) .........................................................................................14
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Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ...........................................................15
Statutes
T
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§ 22.002(a) (Vernon 2004) .................................................................xii
T
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§ 311.012(b) (Vernon 1998).................................................................9
T
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& S
AFETY
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§ 711.004 (Vernon Supp. 2004).............................viii, 5, 9
T
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& S
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§ 711.004(a)(5) (Vernon Supp. 2004) ..............................9
T
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& S
AFETY
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§ 711.004(c) (Vernon Supp. 2004)...................................5
T
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§ 31.........................................................................................................6
Other Authorities
Epitaph of William Shakespeare, as quoted in J. Bartlett,
Familiar Quotations, p. 250 (15th ed. 1980) .................................................................10
Rules
T
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IV
. P. 11 ................................................................................................................4
T
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VID
. 801(d) .........................................................................................................12
T
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VID
. 802..............................................................................................................12
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STATEMENT OF THE CASE
Nature of the Case:
The Real Party in Interest claims that she is the nonmarital
daughter of John G. Kenedy, Jr., and she is attempting to reopen
the Estates of John G. Kenedy, Jr., Elena Suess Kenedy, and
Sarita Kenedy East. As a part of this effort, Plaintiff has filed
several bill of review and other proceedings in the 105th District
Courts of Nueces and Kenedy Counties, as well as several bill of
review proceedings in the County Court of Kenedy County. (CR
Tabs 14 through 19, 21, 22,43, 47, 48, 49, 124, and 125)
1
Trial court:
The Honorable Guy Herman, presiding judge of the Travis
County Probate Court No. 1, sitting by appointment in the
County Court of Kenedy County. (CR Tab 33) Judge J. A.
Garcia, Jr. is the permanent judge of the Kenedy County court.
Trial Court’s
Disposition:
Respondent signed several orders leading up to its June 18, 2004
order for an exhumation of the remains of John G. Kenedy, Jr. to
occur on July 10, 2004. (CR Tabs 80 at Exhibit 2, 90, 104, 105,
106, 123)
Parties in the
Court of Appeals:
The parties’ designations remain the same.
Court of Appeals
Disposition:
The Thirteenth Court of Appeals denied Relators’ Petition for
Writ of Mandamus, as well as the petition of Co-Relator the John
G. and Marie Stella Kenedy Memorial Foundation on Tuesday,
July 6, 2004. (CR Tab 131)
Requested Disposition
from This Court:
Relators seek a writ of mandamus directed to Respondent to
withdraw his orders pertaining to exhumation, including his most
recent order of June 18, 2004; and to deny the Real Party’s
motion to exhume or to refrain from ruling on the motion to
exhume for the present time.
1
In accordance with Texas Rule of Appellate Procedure 52.7, Relators have filed with this petition sworn and
uncontroverted copies of the pleadings and orders. This record will be cited “(CR Tab _____).” There is also a
reporter’s record of the hearing on Plaintiff’s Motion to Exhume, which will be cited “(RR _____),” and exhibits to
that record which will be cited by their exhibit designation at the time of the hearing, e.g., as P’s (Plaintiff’s) X ___,
KT’s (Kenedy Trust’s) X ___, and KF’s (Kenedy Foundation’s) X ___.
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STATEMENT OF JURISDICTION
This Court has jurisdiction to grant the requested relief pursuant to Texas
Government Code § 22.002, which provides that the Supreme Court may issue “all writs .
. . of mandamus agreeable to the principles of law” against “a statutory county court
judge, a statutory probate court judge, a district judge, a court of appeals or a justice of a
court of appeals, or any officer of state government except the governor, the court of
criminal appeals, or a judge of the court of criminal appeals.” T
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§
22.002(a) (Vernon 2004).
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ISSUE PRESENTED
Issue No. 1:
Whether the trial court clearly abused its discretion in granting the Real Party’s request to
exhume the remains of John G. Kenedy, Jr. for invasive DNA testing and whether
mandamus relief is available to protect the burial of the remains before they are
disinterred?
The Respondent’s order is void and constitutes a clear abuse of discretion because
Respondent lacks jurisdiction to rule on exhumation, Fernandez lacks standing to pursue
disinterment, both Kenedy relatives and the cemetery property owner object to
exhumation, Fernandez has made no showing of a compelling interest or necessity for
exhumation, any merits determination should come after a ruling on the bills of review
themselves, and there are available less intrusive and drastic means of resolving the
litigation as a whole.
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STATEMENT OF FACTS
The factual history of this case involves several probate proceedings and a number
of different lawsuits that span a period of more than fifty years. In the petition filed with
the Thirteenth Court of Appeals, the statement of facts alone comprised thirteen pages.
As a result, Relators have attached a copy of an opinion in a related mandamus and refer
this Court to its factual summary. See In re the John G. and Marie Stella Kenedy
Memorial Foundation, 2004 WL 1335849 (Tex. App. -- Corpus Christi, June 16, 2004,
orig. proceeding). In a nutshell, the Real Party has filed several bills of review -- some in
district court and some in county court -- all of which sought to challenge the long-
finalized estate distributions of John G. Kenedy, Jr., his sister Sarita Kenedy East, and his
wife Elena Suess Kenedy on the basis that Ann Fernandez is the nonmarital daughter of
John G. Kenedy, Jr. (CR Tabs 14 through 19, 21, 22,43, 47, 48, 49, 124, and 125)
In the decision referenced above, the Thirteenth Court conditionally granted
mandamus relief because Respondent lacked the authority to transfer the bill of review
proceedings that were originally filed in the 105th Judicial District Court.
2
(CR Tab 115)
Before, during, and after the time that the jurisdictional mandamus was pending, the Real
Party sought an exhumation of the remains of John G. Kenedy, Jr. for DNA paternity
testing. (CR Tab 67, 69, 70, 71, 72, 74, 78, and 80) By order dated June 18, 2003, the
trial court ruled that it had jurisdiction to consider Plaintiff’s exhumation motion. (CR
2
Please note that Relators are not challenging that ruling in this mandamus action. Two separate mandamus actions
were filed with the Thirteenth Court of Appeals -- one challenging the statutory probate court judge’s ability to
transfer bills of review pending in the 105th district court and one challenging the same judge’s order of
exhumation. Relators received favorable relief from the Thirteenth Court on the initial mandamus, but Relators’
exhumation mandamus was denied by that court yesterday. This mandamus involves the exhumation order.
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Tab 80 at Exhibit 2) On November 5, 2003, Respondent held a hearing on the motion;
the parties submitted post-hearing briefing; and, on January 29, 2004, Respondent
granted the motion. (CR Tabs 82, 83, 84, 88, 89, and 90; RR - 11/05/2003)
Relators followed with a reconsideration request of Respondent’s exhumation
decision, as well as a request for stay of the exhumation. (CR Tabs 91 and 96) However,
Respondent signed a Supplemental Order of Exhumation on February 6, 2004, setting
February 28, 2004, as the date for the exhumation of John G. Kenedy, Jr. (CR Tabs 92,
93, 97 through 106) On the afternoon of February 6, 2004, Relators moved for and
ultimately received immediate temporary relief in Cause No. 13-03-00696-CV -- the
jurisdiction mandamus referenced above. (CR Tab 107 through 111) The Thirteenth
Court issued a stay as to all proceedings pending before Respondent. (CR Tab 113)
However, in conjunction with the issuance of its opinion in the jurisdiction
mandamus on Wednesday, June 16, 2004, the Thirteenth Court lifted its prior stay of the
proceedings before Respondent. (CR Tab 115) Instead of recognizing the main thrust of
the Court’s previous stay order and the mandamus opinion determining that Respondent
had no authority to preside over the potentially determinative bill of review proceedings,
the Real Party latched onto the last sentence of the opinion lifting the stay and
immediately forwarded correspondence to Respondent requesting a new date for
exhumation and including a proposed order. (CR Tabs 113, 115, and 119) Upon
prompting by Relators, Respondent scheduled a hearing on two hours notice for 11:00
a.m. on Friday, June 18, 2004, and ordered that the exhumation of John G. Kenedy, Jr.’s
remains will occur on July 10, 2004. (CR Tabs 120, 121, 122, and 123; RR - 06/18/2004)
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In Respondent’s words, because he had already entered the exhumation order, the
exhumation was “going to happen.” (RR - 06/18/2004 at 10) This mandamus follows.
ARGUMENT AND AUTHORITIES
I.
The Statutory Probate Court Has No Jurisdiction
A.
The Statutory Probate Court Has No Jurisdiction Over the Bills of
Review Filed to Attack Final Judgments of the 105th District Court,
and Exhumation Cannot Be Ordered Before Those Final Judgments
Are Set Aside
The keys to the conclusion of the multiple bills of review filed by the Real Party in
Interest Ann Fernandez are the judgments in the will construction suit concluding that
John G. Kenedy, Jr. died testate as to all of his property and in the will contest suit
concluding that Sarita K. East died testate as to all of her property. (CR Tab 3 at 93-95,
and Tabs 8 and 9) Thus, Fernandez’s claims hinge upon her challenge that seeks to set
aside those final judgments and upon her allegations that John Kenedy’s will was
ineffective to dispose of his real property and that the will of Sarita K. East admitted to
probate in 1961 is invalid. In addition, even though Fernandez has not challenged the
1948 will and codicil of Sarita K. East, which were not admitted to probate, she would
need to set that will and codicil aside as well. Given these final judgments, even if Ann
Fernandez were an heir, she would not be entitled to recover anything.
As the Thirteenth Court has determined, Respondent had no jurisdiction to
unilaterally transfer the bills of review, filed under Cause Nos. 35 and 85, nor did he have
jurisdiction to transfer the final judgment in Cause No. 101,209-D -- all of the foregoing
being final judgments from the 105th district court of Kenedy and Nueces Counties. (CR
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Tab 115) Given the trial court’s lack of jurisdiction to resolve the key cases -- the will
construction and will contest bills of review -- Respondent abused his discretion in
putting the proverbial cart before the horse and granting a motion to exhume in the bill of
review proceedings challenging the administration of the wills of John G. Kenedy, Jr. and
his wife, Elena Suess Kenedy. In the absence of a valid transfer of the district court
cases, there is no basis for jurisdiction to order the exhumation. Case law is clear that
Respondent had no authority to order an exhumation unless and until the final judgments
in Cause No. 35 or Cause No. 101,209-D are set aside -- an act solely within the
jurisdiction of the 105th District Court. Because Mr. Kenedy and Mrs. East both died
testate, paternity and heirship are not issues ripe for determination unless and until the
bills of review are granted and those final judgments are set aside. See, e.g., Amanda v.
Montgomery, 877 S.W.2d 482, 487 (Tex. App. -- Houston [1st Dist.] 1994, orig.
proceeding) (holding that paternity testing could not be ordered before petitioner proved
prima facie case for bill of review); McMahan v. Naylor, 855 S.W.2d 193, 194-95 (Tex.
App. -- Corpus Christi 1993, writ denied) (issue of intestacy should be determined before
heirship); Spears v. Haas, 718 S.W.2d 756, 758 (Tex. App. -- Corpus Christi 1986, orig.
proceeding) (holding that serology testing to determine paternity could not be ordered
until petitioner proved prima facie case for bill of review).
Given these jurisdictional issues, a request was made for Respondent to delay
ruling on the exhumation pending the Thirteenth Court’s decision in the jurisdictional
appeal and mandamus; Respondent declined. (CR Tab 91; CR Tab 130 at 15, 21-22)
Relators also attempted to enter into a Rule 11 agreement with opposing counsel staying
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the exhumation until the resolution of Respondent’s jurisdiction, to no avail. (CR Tab
94) Ultimately, Relators obtained a stay from the Thirteenth Court -- a stay that
expressly noted that any action taken by Respondent in the consolidated cause, which
included matters not part of the jurisdiction mandamus, “may have an effect on the
matters currently pending before us.” (Tabs 108 and 113) Despite that language and the
Thirteenth Court’s holding that Respondent had no jurisdiction over the potentially
determinative bills of review, Respondent persisted in signing another exhumation order
as soon as the February 9, 2004 stay was lifted. (CR Tabs 115 and 123)
B.
The Statutory Probate Court Judge Has No Jurisdiction to Grant an
Exhumation Pursuant to Section 711.004 of the Texas Health and
Safety Code
Section 711.004 governs the removal of remains interred in a cemetery and is the
authority under which Real Party Fernandez moved to exhume the remains of John G.
Kenedy, Jr. However, section 711.004 does not vest Respondent with the authority to
grant the kind of relief Real Party Fernandez sought below. In Atkins v. Davis, 352
S.W.2d 801, 802 (Tex.Civ.App. -- Fort Worth 1961, no writ), the court explained that
only the district court has jurisdiction to determine controversies concerning the right to
disinter and remove a dead body, and no other court has been given this jurisdiction. The
Atkins court was confronted with the same argument made by Fernandez below, i.e., that
the county court has jurisdiction to order an exhumation because what is now section
711.004(c) allows a county court to give permission for exhumation provided that the
other requirements of the statute are met. 352 S.W.2d at 802. However, the Atkins court
concluded that this language did not confer jurisdiction on the county court to resolve
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disputes regarding whether one has shown a compelling interest for disinterment. Id.
The Real Party brought forward no Texas authority to the contrary, and a writ of
mandamus should issue to Respondent to rescind his void order of exhumation.
II.
The Plaintiff Has No Standing to Request Exhumation At This Time
Fernandez lacks standing to seek an exhumation. “It is well settled that for a
person to maintain an action in court, it must be shown that he has a justiciable interest in
the subject matter in litigation, either in his own right or in a representative capacity.”
Eddowes v. Oswald, 621 S.W.2d 843, 846 (Tex. App. -- Fort Worth 1981, no writ), citing
Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219 (1954). “Standing is a prerequisite to
subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court’s power
to decide a case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000).
Here, Fernandez has no justiciable interest in the exhumation and DNA analysis of
Kenedy’s remains for a simple reason -- Texas courts have specifically held that where a
party cannot succeed on a bill of review to set aside a prior estate distribution, the party is
not a person interested in the estate and, therefore, has no standing to maintain litigation
involving the estate. Trevino v. Turcotte, 564 S.W.2d 682 (Tex. 1978); see also T
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§ 31 (giving only a “person interested” the right to assert a statutory bill of
review to set aside or modify probate order).
Both the Kenedy Will Construction Suit and the East Will Contest Suit were
concluded by final judgments, both of which adjudicated that the decedents died testate
as to the entirety of their estates. Until and unless those final judgments are set aside, the
identity of Fernandez’s biological father or her status as an heir is a non-issue. Thus,
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Fernandez would have to win her bill of review cases and set aside the existing final
judgments before she would have any standing to pursue the exhumation of John G.
Kenedy, Jr.’s body. The mere filing of Fernandez’s bill of review as to that judgment
does not set aside or supersede the judgment. Schwartz v. Jefferson, 520 S.W.2d 881,
889 (Tex. 1975). At the very least, she must make a prima facie showing of success.
Respondent’s correspondence of January 29, 2004 addresses standing, but twists
the Trust’s argument on its head. (CR Tab 88) In order to confer standing on Fernandez,
Judge Bañales of the 105th District Court would have to address the defenses to
Fernandez’s bills of review pending in his court before either he or anyone else could
address paternity -- not the other way around. (RR -- 11/05/2003 at 113, 135-36, 145-46)
See, e.g., In re Attorney General of Texas, 2001 WL 8547, *2 (Tex. App. -- San Antonio
2001, orig. proceeding) (not designated for publication) (holding that trial court could not
order paternity testing if bill of review barred as matter of law). As a result, Respondent
had no subject matter jurisdiction to order the exhumation.
III.
Respondent Abused Its Discretion In Ordering a Determination on the Merits
Before Determining Success on the Bills of Review Remaining in Its Court
and Pending In the District Court
Even if the bar to Respondent’s action is not jurisdictional, the Supreme Court has
explained the proper procedural steps for resolving bills of review. In order to be
successful upon a bill of review, a complainant must first allege and prove the following:
(1) a meritorious defense to the cause of action alleged to support the judgment, (2)
which he was prevented from making by the fraud, accident, or wrongful act of the
opposite party, (3) unmixed with any fault or negligence of his own. Baker v. Goldsmith,
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582 S.W.2d 404, 406-07 (Tex. 1979). Only after a proper pleading has been supported
by prima facie proof, and assuming no other legal bars -- a point below -- does it then
become necessary to have a “‘full-blown’ examination of the merits.” Id. at 408.
Respondent has abused its discretion in proceeding first with what amounts to a
merits inquiry before determining whether the Real Party could ever succeed on her bills
of review filed to challenge the probate proceedings for John G. Kenedy, Jr., Sarita K.
East, and Elena Suess Kenedy and before the district court has made any determination of
whether the Real Party can succeed on her bills of review filed to challenge the will
contest and will construction judgments. Respondent has ordered an exhumation so that
genetic testing can be done in an effort to determine whether John G. Kenedy, Jr. is
Fernandez’s biological father. Paternity is an issue that relates to the merits of Ann
Fernandez’s underlying claims against the estates; however, Respondent has taken no
steps to first allow for the determination of the viability of Fernandez’s bills of review.
Such a clear abuse of discretion warrants mandamus relief.
This is particularly so where the Real Party has failed to verify her bills of review -
- a requirement for their success and a requirement to confer authority upon the trial court
to grant any relief whatsoever. See Males v. Wimberly, 107 S.W.2d 466, 467
(Tex.Civ.App. -- Dallas 1937, no writ); Hildyard v. Fannel Studio, 547 S.W.2d 332, 338
(Tex. App. -- Corpus Christi 1977, writ ref’d n.r.e.); McCann v. Ward County, 423
S.W.2d 339, 339-40 (Tex.Civ.App. -- El Paso 1967, writ ref’d n.r.e.). Though an
affidavit executed by Ray Fernandez, the Real Party’s grandson, is attached, that affidavit
is defective because it does not swear that the facts alleged in the bills of review are true
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nor that the trial court committed a “substantial error” in entering its final judgments, see
Hoover v. Sims, 792 S.W.2d 171, 173 (Tex. App. -- Houston [1st Dist.] 1990, writ
denied). Without a verification, the minimum requisite proof to sustain a bill of review is
missing -- a defect that precludes Respondent from reaching past the bills of review into a
determination of the merits of Plaintiff’s claims. Mandamus should be granted.
IV. The Real Party Failed to Give the Required Notice
A.
Insufficient Notice of the Exhumation Was Given to the Decedent’s
Next of Kin
Fernandez moved for exhumation pursuant to section 711.004 of the Texas Health
and Safety Code. That statute mandates, prior to exhumation, notice to and consent by
the “adult person in the next degree of kinship in the order named by law to inherit the
estate of the decedent.” T
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& S
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§ 711.004(a)(5) (Vernon Supp.
2004). Per the terms of the statute, the Plaintiff was required to give notice to Robert
Turcotte and Elizabeth Turcotte -- siblings in the same degree of heirship to John G.
Kenedy, Jr. (RR - 11/05/2003 at 99-100; KT’s X 4) See T
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§ 311.012(b)
(Vernon 1998) (explaining that the singular includes the plural). The record
demonstrates that Elizabeth Turcotte did not receive notice of the exhumation
proceedings, and the record contains no evidence that Robert Turcotte ever received the
notice that the Plaintiff sent. (RR - 11/05/2003 at 42-43; P’s X 3, 4)
B.
Parties Identified in Section 711.004 Have Objected to Fernandez’s
Exhumation Request
In any event, multiple parties object to the exhumation. One of the trustees of the
John G. Kenedy, Jr. Charitable Trust is a nephew by marriage of John G. Kenedy, Jr. and
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a blood relative of Kenedy’s wife, Elena Suess Kenedy. He has the standing to contest
the exhumation of his uncle, and objects to it. (RR - 11/05/2003 at 129-30) Similarly,
Lee Lytton, III, a third cousin by blood of John G. Kenedy, Jr. and a relative of many
persons buried at the Kenedy family cemetery, testified at the hearing on Plaintiff’s
Motion to Exhume that he opposes the exhumation. (RR - 11/05/2003 at 95-99, 103, ;
KT’s X 3, 4) Moreover, the Trust and its beneficiaries, successors to the interest of John
G. Kenedy, Jr.’s wife, object to the exhumation. (RR - 11/05/2003 at 129-30) And
finally, the Missionary Oblate Fathers of Texas, who own the property and whose
consent must be obtained pursuant to section 711.004, lodged an objection to the
exhumation of Kenedy’s remains. (RR - 11/05/2003 at 153-54) Under the facts of this
case, there is no support for any action by Fernandez to remove the remains.
V.
The Respondent Clearly Abused His Discretion in Ordering Exhumation
A.
Disinterment Is Highly Disfavored by Texas Courts and Is Against
Public Policy Without a Showing of Necessity or Compelling Reason
Good friend, for Jesus’ sake forbear
To dig the dust enclosed here;
Blest be the man that spares these stones,
And curst be he that moves my bones.
3
“[W]e believe the imprecation on the tomb at Stratford ‘cursed be he that moves
my bones’ expresses the universal sentiment of humanity against profanation.” Burnett v.
Surratt, 67 S.W.2d 1041, 1041 (Tex.Civ.App. -- Dallas 1934, writ ref’d). Setting aside
the jurisdictional problems with Respondent’s order of exhumation, the trial court clearly
3
Epitaph of William Shakespeare, as quoted in J. Bartlett, Familiar Quotations, p. 250 (15th ed. 1980).
10
Page 25
abused its discretion because, considering the extreme nature of exhumation, the trial
court failed to require Fernandez to demonstrate that the exhumation was necessary and
failed to consider less intrusive alternatives for resolving the litigation.
“[T]here is a public policy against disinterment.” Samsel v. Diaz, 659 S.W.2d
143, 144 (Tex. App. -- Corpus Christi 1983, no writ); see also Curlin v. Curlin, 228 S.W.
602, 603-04 (Tex.Civ.App. -- Amarillo 1921, no writ). As a result, a party must
demonstrate a compelling reason or necessity for disinterment. Samsel, 659 S.W.2d at
144. The reason that Texas treats exhumation as available only upon a showing of
necessity or a compelling reason therefore is exemplified by the Plaintiff’s proposed
procedure in this case -- the goal being to remove with pliers as many teeth as possible
and to remove with a saw at least twelve inches of each leg bone. (CR Tab 67; RR -
11/05/2003 at 29, 32-35, 40) Given the abhorrent nature of the procedure and the
centuries-old public policy against it, exhumation must be a last resort in resolving
contested litigation, not a threshold discovery device ordered on the basis of meager
allegations of heirship brought forth by the Plaintiff. As Relators argued, “[exhumation]
shouldn’t be done lightly, it shouldn’t be done unless it’s absolutely necessary, and [it
should be done] only as a last resort.” (CR Tab 130 at 5)
B.
The Real Party Has Made an Insufficient Showing of a Compelling
Reason or Necessity for Disinterment
The statutory probate court determined that even though, under the common law, a
showing of necessity or compelling reason was a condition precedent to exhume an
interred body, such a showing was unnecessary under the current law. (CR Tab 88)
11
Page 26
However, section 711.004 of the Texas Health and Safety Code, has not altered the
common law in this respect because the legislature has expressed no such intent. See,
e.g., Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990); McBride v.
Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1942); First Nat’l Bank of Kerrville v.
Hackworth, 673 S.W.2d 218, 221 (Tex. App. -- San Antonio 1984, no writ).
As a result of courts’ reluctance to order the disturbance of a deceased’s remains,
courts must first make sure that the exhumation will solve an important question and also
satisfy themselves that less intrusive alternatives to exhumation exist. See Samsel, 659
S.W.2d at 144 (exhumation permitted only upon showing of necessity or compelling
reasons); American Nat’l Ins. Co. v. B. Gonzalez & Co., 72 S.W.2d 388, 389
(Tex.Civ.App. -- San Antonio 1934, writ dism’d) (explaining that exhumation must serve
useful purpose); American Nat’l Ins. Co. v. Nuckols, 187 S.W. 497, 499 (Tex.Civ.App. --
San Antonio 1916, no writ) (same). Thus, “[e]xcept in cases of necessity or for laudable
purposes the policy of the law is that the sanctity of the grave should be maintained, and
that a body suitably buried should remain undisturbed.” Fowlkes v. Fowlkes, 133 S.W.2d
241, 242-43 (Tex.Civ.App. -- Galveston 1939, no writ).
Respondent held that the allegation of paternity constitutes a necessity or
compelling reason for exhumation. However, the allegation of paternity is supported by
one thing only -- the declaration of Maria Goates, the Plaintiff’s mother, a couple of
months before she died that her grandson “looked like Johnny.” First, that statement
constitutes inadmissible hearsay. (RR - 11/05/2003 at 156) T
EX
. R. E
VID
. 801(d), 802.
In any event, as explained in the Trust’s Motion for Reconsideration on Motion and
12
Page 27
Order to Exhume, the nursing home records of Maria Goates, the individual on whose
statement this entire litigation rests, was declared incompetent and appointed a guardian,
eight years before she made the statement in question. (CR Tab 91 at Exhibits G and H)
It is a clear abuse of discretion for the trial court to order an exhumation of John G.
Kenedy, Jr.’s remains based on nothing more than the statement of a demented individual
that her grandson “looked like Johnny.” Based on that evidence, the allegation of
paternity does not present a compelling reason or necessity.
Even if Ray Fernandez’s hearsay account of Goates’ statement is presumed
relevant and admissible, there is no guarantee that the exhumation will answer the
question of paternity. The Real Party’s expert could not offer any information regarding
the condition of John G. Kenedy, Jr.’s remains, though he conceded that it was not
customary to embalm people who died in Mexico in the late 1940’s, as did John G.
Kenedy, Jr. (RR - 11/05/2003 at 27, 33) However, the condition of the remains is a key
factor in being able to extract DNA successfully. (RR - 11/05/2003 at 17-18) The oldest
DNA ever extracted by the Real Party’s expert was from remains that were 12 years old.
(RR - 11/05/2003 at 15) The remains at issue in this case are more than 50 years old.
C.
As a Result of Texas’ Attitude Toward Disinterment, Less Extreme
Measures Should be Tried First
Relators have proposed less intrusive and less drastic alternatives for resolving the
litigation as a whole. See Samsel, 659 S.W.2d at 144 (explaining that court should
consider less drastic alternatives to exhumation). In fact, the use of less drastic or
intrusive procedures to determine litigation issues is not unique to the exhumation
13
Page 28
context. See, e.g., Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex.
1995) (orig. proceeding); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913,
917 (Tex. 1991) (orig. proceeding); Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex. 1996).
Here, the trial court has failed to consider less intrusive methods -- namely
allowing Judge Bañales the opportunity to resolve the litigation as a whole, with a stay of
all other proceedings until those suits are resolved. Respondent did not even consider the
option of resolving the litigation currently pending in his own court. As explained above,
Fernandez has to prove a prima facie case on those bills of review, which she cannot do,
particularly if Relators have valid defenses. In either event, the will construction suit has
to be determined first, which would necessarily involve a consideration of the Relators’
motions for summary judgment -- and, for the purposes of those summary judgment
motions, Relators have assumed that Ann M. Fernandez was the daughter of John G.
Kenedy, Jr. (CR Tabs 68, 79, 85; RR - 11/05/2003, KT’s X 5, 6, and 7)
A short delay in the exhumation would not have any significant impact on the
ability to do DNA testing, in light of the fact that John G. Kenedy, Jr.’s remains have
been buried for more than 50 years. (RR - 11/05/2003 at 18) In fact, Respondent had
already set a scheduling order for resolution of the summary judgment filings before he
ruled on the exhumation. (CR Tab 91 at Exhibit A) Respondent should have continued
down that path, or now should allow the 105th district court to proceed, because Relators
established their entitlement to summary judgment as a matter of law, disregarding the
relationship issue. Respondent never set the motions for hearing, despite the movants’
repeated requests. (RR - 11/05/2003 at 48-49, 109-12, 135) Because there is no
14
Page 29
prejudice in delaying the exhumation, if the summary judgments are not granted, then the
exhumation can proceed at a later date. But the motions must be heard first.
VI. Mandamus Is An Appropriate Remedy Here
Mandamus is available to correct a trial court’s clear abuse of discretion when no
adequate appellate remedy exists. Walker v. Packer, 827 S.W.2d 833, 839-44 (Tex.
1992) (orig. proceeding). Where, as here, the order is void because it was entered by a
court that lacked jurisdiction, the Relator need not show an inadequate remedy by appeal.
In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
Thus, mandamus is available to Relators to challenge Respondent’s void orders.
In any event, there is no adequate remedy when the trial court orders something
that cannot be undone by virtue of an appeal. An appeal is considered to be inadequate if
the appellate court would not be able to cure the trial court’s error. Walker, 827 S.W.2d
at 840. This case fits squarely within that principle -- once John G. Kenedy, Jr.’s remains
are exhumed, the right to contest the court’s exhumation order will be lost. Relators have
no adequate appellate remedy because the appellate court cannot cure the trial court’s
erroneous exhumation of the remains of John G. Kenedy, Jr. -- once he has been
exhumed, there is no magic trick that the court of appeals can muster to turn back time
and prevent the exhumation from having occurred nor undo the mutilation and
disturbance forever caused to his remains.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relators Frost National Bank,
Former Executor of the Estate of Elena Suess Kenedy, Deceased; Frost National Bank
15
Page 30
and Pablo Suess, Trustees Of The John G. Kenedy, Jr. Charitable Trust; and The
Missionary Oblate Fathers Of Texas respectfully pray that this Court grant their Petition
for Writ of Mandamus; direct the trial court to withdraw its orders of June 18, 2003,
January 29, 2004, February 6, 2004, February 6, 2004, and June 18, 2004; direct
Respondent to deny the motion to exhume for lack of jurisdiction/standing, or, in the
alternative, direct Respondent to refrain from ruling on the motion at this time; and grant
Relators such other and further relief to which they are entitled.
Respectfully submitted,
ADAMI, PAISLEY & APPELL, P.C.
J.G. Adami, Jr.
State Bar No. 00846500
601 East Main Street
P.O. Box 331
Alice, Texas 78333-0331
(361) 668-8101
(361) 668-8106 (telecopier)
OSBORNE & HELMAN, L.L.P.
Stephen Jody Helman
State Bar No. 09399500
Jeffrey T. Knebel
State Bar No. 11589000
301 Congress Avenue, Suite 1910
Austin, Texas 78701
(512) 542-2000
(512) 542-2011 (telecopier)
CROFTS & CALLAWAY, A P.C.
Thomas H. Crofts, Jr.
State Bar No. 05099200
Jacqueline M. Stroh
State Bar No. 00791747
112 East Pecan, Suite 800
San Antonio, Texas 78205-1578
(210) 225-5551
(210) 225-7110 (telecopier)
CANALES & SIMONSON, P.C.
J. A. “Tony” Canales
State Bar No. 03737000
2601 Morgan Avenue
P. O. Box 5624
Corpus Christi, Texas 78465-5624
(361) 883-0601
(361) 884-7023 (telecopier)
ATTORNEYS FOR RELATORS, FROST NATIONAL BANK, FORMER EXECUTOR
OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL
BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR.
CHARITABLE TRUST
By:__________________________________
J. G. Adami, Jr.
16
Page 31
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
David R. Nelson
State Bar No. 00795556
Daniel McNeel Lane, Jr.
State Bar No. 00784441
300 Convent, Suite 1500
San Antonio, Texas 78205
(210) 281-7000
(210) 224-2035 (telecopier)
ATTORNEYS FOR RELATOR MISSIONARY OBLATE FATHERS OF TEXAS
By: __________________________________
David R. Nelson
VERIFICATION
STATE OF TEXAS
§
§
COUNTY OF BEXAR
§
BEFORE ME, the undersigned Notary Public, on this day personally appeared
Jacqueline M. Stroh, who, being by me duly sworn, on oath deposed and said that she is
an attorney for Relators Frost National Bank, Former Executor of the Estate of Elena
Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess, Trustees of The John
G. Kenedy, Jr. Charitable Trust, that she is authorized to make this affidavit, that she has
read the foregoing Petition for Writ of Mandamus, and that the facts stated therein are
true and correct.
Jacqueline M. Stroh
SUBSCRIBED AND SWORN TO BEFORE ME on this 7th day of July, 2004, to
certify which witness my hand and official seal.
Notary Public In and For the State of Texas
17
Page 32
CERTIFICATE OF SERVICE
I do hereby certify that true and correct copies of the foregoing Petition for Writ of
Mandamus were on this 7th day of July, 2004, served by U.S. Mail, postage prepaid, to
the following:
J. Bonner Dorsey
2100 The 600 Building
P.O. Box 1122
Corpus Christi, Texas 78403
and
Sam A. Westergren
615 Leopard Street, Suite 516A
Corpus Christi, Texas 78476
and
Mark Schwartz
DuBois, Bryant, Campbell & Schwartz, L.L.P.
P.O. Box 909
Austin, Texas 78767
Attorneys for Ann M. Fernandez
John Matthew Sjoberg
Jackson, Sjoberg, McCarthy & Wilson, L.L.P.
711 West 7th Street
Austin, Texas 78701
and
Shannon H. Ratliff
Ratliff Law Firm, P.L.L.C.
600 Congress Avenue, Suite 3100
Austin, Texas 78701
Attorneys for ExxonMobil Corporation and ExxonMobil Oil Corporation
Richard L. Leshin
Bruce S. Hawn
Welder, Leshin & Mahaffey, L.L.P.
800 North Shoreline Blvd., Suite 300N
Corpus Christi, Texas 78401
and
Richard J. Hatch, Sr.
The Hatch Law Firm
802 North Carancahua, Suite 665
Corpus Christi, Texas 78470
and
18
Page 33
Ray Chester
Thomas O. Barton
McGinnis, Lochridge & Kilgore, L.L.P.
919 Congress Avenue, Suite 1300
Austin, Texas 78701
and
Jorge C. Rangel
Jon D. Brooks
The Rangel Law Firm, P.C.
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
and
Mike Hatchell
Charles R. “Skip” Watson
Locke, Liddell & Sapp, L.L.P.
100 Congress Avenue, Suite 300
Austin, Texas 78701
Attorneys for the John G. and Marie Stella Kenedy Memorial Foundation
John W. Vinson
Marsha Aycock
Assistant Attorney General
Charitable Trusts Section
P.O. Box 12528
Austin, Texas 78711-2548
Attorneys for the State of Texas
The Honorable Guy Herman, Judge
Travis County Probate Court
1000 Guadalupe Street, Room 217
P.O. Box 1748
Austin, Texas 78767-1748
Respondent
_________________________________
J. G. Adami, Jr.
19

Nueces De La Parra: WATT a CROCK of CCCT / 6 News Media Propaganda

2006-06-22T22:05:00.000-07:00

Nueces De La Parra: WATT a CROCK of CCCT / 6 News Media Propaganda

Armstrong Ranch: A 20-gauge shotgun worth $2,073 that Katharine Armstrong and 10 other friends gave to Karl Rove

2006-06-17T20:48:00.000-07:00

Armstrong Ranch: A 20-gauge shotgun worth $2,073 that Katharine Armstrong and 10 other friends gave to Karl Rove

SARITA - They call him "Blacky," but at some point during decades sitting in a saddle, Jose Salazar

2006-06-12T03:57:00.000-07:00

June 4, 2006, 1:16AM
Old cowpokes refuse to let go of the reins
Men long past retirement make a ranch an old age home on the range

By JESSE BOGAN
San Antonio Express-News

SARITA - They call him "Blacky," but at some point during decades sitting in a saddle, Jose Salazar, a twig of an old cowboy, forgot where and how he got his nickname.

Having ridden fences for so long, Salazar, 88, wheezes from boredom at home and refuses to retire.

He's that rare type, a man who relishes the thought of Monday morning. It is then that co-workers at the San Pedro Kenedy Ranch Co. boost him onto a mare's back for the start of another workweek.

"I will die sooner at home," he said in a voice slightly higher than a whisper. "I am there just thinking all the time. That's not good."

Salazar, who weighs 110 pounds and has had a prosthetic foot from a long-ago car wreck, is the oldest of a crowd of about 20 other hardened cowboys who work at Kenedy's. Several of them are wrinkled by age, making the 200,000-acre ranch a sort of cowboy nursing home.

Some continue to work the ranch out of an addiction to the lifestyle, some out of financial need.

"We have family, so we are spending money," said Romulo Camacho Martinez, 70, a cook from San Luis Potosi, Mexico, whose staples include molasses, jalapenos and apricot jelly.

Passing into history
But even as they cling to this way of life, it is passing into history, fading with the death of each elderly cowboy. Salazar's workload and that of other hands on the ranch has been drastically cut back to a shift that ends at noon instead of nightfall as cattle increasingly are rounded up by helicopter and the popularity of deer racks has eclipsed that of longhorns.

Mike East, who owns a large neighboring spread and leases the ranch from the John G. Kenedy Jr. Charitable Trust, has neither the intention nor the heart to let the old-timers go.

"They've worked there all their life," East said. "How can you tell them they can't come to work anymore? They want to come."

East is 62 and knows the value of experience. Besides, he said, even as times are changing with new technology, the skills of the old cowboys come in handy.

"They do more than you think," he said. "They move cattle around on horseback and don't scare them. They get them gentled. You put new cattle in a new place and they don't know where the water is. They head them in the right direction."

As a young buck, Salazar earned a reputation for being able to handle any kind of fussy or pitching horse, his colleagues said.

These days, however, his spurs are mounted to soft-soled hiking boots and he's like a slow reaching shadow alongside a newer breed of ranch hand such as 20-year-old Leroy Lerma Jr., who wears sneakers, plays heavy-metal music on his guitar and eschews a cowboy hat for a baseball cap.

The tattooed Lerma is one of the youngest cowboys on the ranch, and he doesn't see a future in this; with a high school diploma in hand, he hopes to attend college to study architecture.

But he sees a quiet strength in these cowboys that appeals to him.

When Salazar fell recently, he busted his lip on the concrete kitchen floor.

Lerma was impressed by what Salazar did next.

"He just got back up like it was nothing," he said.

Israel "Rey" Mendietta and Javier de la Cruz, both 70, look after Salazar, picking him up in the morning from a house in tiny Sarita that the ranch provides rent-free.

Stiff with age

Salazar used to ride at the ready like his pals, with one hand through the reins, the other free primed to reach for a rope, gate or tree branch.

But this day, riding a horse he knew only as "the mare, nothing more," he held onto the back of the saddle with what would have been his free hand to stay balanced.

The hand that was looped through the reins was locked stiff and flat with age, fingers unbent. No longer can he form a tight fist.

Salazar walked the horse, never ran, apparently because of a lesson he learned years ago.

"The boss gets mad," Salazar said. "He says, 'What's the point of running them?' "

Circling behind seven brown heifers, Salazar shooed the animals toward water.

Salazar doesn't speak much, and when he does, his words come in Spanish.

As his father did before him, Salazar has worked the same land since he was a boy. The ranch, near the tiny town of Mifflin, lies along U.S. 77.

"The ranch might change supervisors or owners, but he's been here," said Juan Cuevas, an accountant for the ranch who has Salazar listed in the books under laborer. "In other words, he goes with the ranch."

Jaime Peace, director of the Texas Cowboy Hall of Fame in Fort Worth, said there are fewer and fewer old veterans. Those who keep working do so to stay young.

"If they are true cowboys, they are relentless," Peace said.

"They will continue to do that until they have their cowboy funeral."

Or, perhaps, an incapacitating injury. A lame knee finally forced Salazar's rival, Paulino Silguero of Riviera, to face reality at age 87.

Born on the ranch
For years, Silguero lived and worked on the ranch all but four days a month. Now he's home full time with his wife of 68 years, Mercedes, who's quick to laugh and give him a hard time.

Both she and her husband were born on the King Ranch. Neither had much formal education.

That didn't prove an obstacle to the cowboy. But the shower in the ranch house did. Paulino had to retire after he fell and couldn't get back up until somebody found him two hours later.

"I want to ride a horse, but I can't do it," he said, sitting on the couch in reach of a cane. "She's fussy."

"Salazar beat him," Mercedes said.

"Ah," Paulino protested, "he doesn't work."

Indeed, Salazar doesn't work nearly as hard as he used to.

But it's not all about the work, anyway. It never was.

The old ranch hands, several past retirement age, gather together early each morning for coffee and camaraderie.

Then the fog lifts and another workday begins.

Sarita Kenedy East, South Texas rancher and philanthropist, daughter of John G. and Marie Stella (Turcotte) Kenedy

2006-05-25T00:06:00.000-07:00

Sarita Kenedy East, South Texas rancher and philanthropist, daughter of John G. and Marie Stella (Turcotte) Kenedy, was born on September 19, 1889, in Corpus Christi, Texas. Her grandfather was Mifflin Kenedy,qv founder of the vast La Parra Ranch in what was then Cameron County (now Kenedy County). She spent much of her childhood at La Parra, and her father named the new town of Sarita, located on the Kenedy ranch, for his daughter upon the town's founding around 1904. Sarita attended Incarnate Word Academy in Corpus Christi and then H. Sophie Newcomb Memorial College in New Orleans. She also made her debut in New Orleans. She did not complete college, but instead returned to La Parra. On December 8, 1910, she married Arthur Lee East, a South Texas rancher. They did not have any children. After Arthur East died in 1944, Mrs East and her brother John G. Kenedy, Jr., were in charge of the 400,000-acre Kenedy ranch. Upon her brother's death in 1948, Sarita and her sister-in-law Elena Suess Kenedy became the sole heirs to the ranch. Sarita East also owned the San Pablo Ranch near Hebbronville and Twin Peaks Ranch in Colorado. She served as a county commissioner of Kenedy County and was on the board of directors of Alice National Bank. In addition to her business dealings she engaged in philanthropy especially to Catholic charities. In 1952 she received the Ecclesia et Pontifice medal and membership in the Ladies of the Holy Sepulchre of Jerusalem from Pope Pius XII for her service to the church. She was also named an honorary member of the Franciscans and the Oblates of Mary Immaculate.qqv In her 1948 will she bequeathed La Parra ranch headquarters and 10,000 acres of land to the Oblate fathers and 13,000 acres to the Diocese of Corpus Christi.qv The rest of her vast estate was divided among relatives and ranch kin.

In 1948 Mrs. East met Christopher Gregory, a Trappist monk who had taken the name Brother Leo. Two years earlier Brother Leo had been released from his vow of silence and assigned to raise funds for new Trappist monasteries. He was on a fund-raising trip through South Texas when he met Sarita East, and over the next few years he became her advisor and traveling companion. In the 1950s Mrs. East allowed oil and gas exploration on her ranch, which up to that time had largely been an untapped resource. During that time she gave money to the Trappist monks and visited monasteries throughout the world. In 1959, with other family members and Brother Leo, she went on a South American tour, one of several trips she made, and donated $300,000 to build a mission in Chile. That same year Brother Leo introduced her to J. Peter Grace, chairman of the board of W. R. Grace and Company, in New York. The three began the work of forming a charitable foundation. On January 21, 1960, they established the John G. and Marie Stella Kenedy Memorial Foundation, with Sarita Kenedy East as sole member. Mrs. East also wrote another will leaving the bulk of her estate to the foundation. Over the next few months she wrote a series of codicils to her will that increasingly gave more control of the foundation to Brother Leo and Grace. Just before her death she named Brother Leo sole member of the foundation. Sarita Kenedy East died of cancer on February 11, 1961, in New York City and was buried at La Parra Ranch.

Within months after her death a group of South Texans, including Elena Suess Kenedy, members of the Turcotte family, and the Diocese of Corpus Christi, filed a lawsuit disputing Brother Leo's control of the foundation, charging that Leo and Grace exerted undue influence over Mrs. East while she was disoriented by medication. Other relatives also contested her 1960 will and wished to reinstate her 1948 will dividing the estate among various beneficiaries. Over the course of the battle more than 200 people claimed to be legitimate heirs. In 1964 a settlement regarding the foundation resulted in the splitting of assets. Grace and the New York group relinquished control of the foundation over Brother Leo's objections. The bulk of the funds, approximately $100 million, went to the control of the South Texans, but Grace received oil royalties (not to exceed $14.4 million) from the estate and established a smaller foundation in New York, the Sarita Kenedy East Foundation, worth approximately $13 million. In 1966 Brother Leo filed an appeal against the decision; after a further series of appeals the Texas Supreme Court ruled against him. In June 1981 the United States Supreme Court refused to hear his appeal, thereby affirming the rights of the Texas relatives to retain control of the foundation. Through a series of court battles over the years the 1960 will was upheld over the 1948 will, and the assets of the foundation and most of the Kenedy estate remained intact. As Mrs. East wished, the ranch headquarters went to the Oblate fathers. The estate, which had been held in escrow by the Alice National Bank, was finally turned over to the foundation in 1982. In 1984, basically the first year that the foundation officially operated, it had $100 million in assets and was the largest charitable foundation in South Texas. It was stipulated that at least 10 percent of the income go to the Corpus Christi diocese, with a total of 90 percent of funds going for religious activities and the other 10 percent going to secular agencies.

As per the Rational of anti raw labor movement & immigration reform agitators....

2006-05-15T16:04:00.000-07:00

As per the Rational of anti raw labor movement & immigration reform agitators....Posted on May 15, 2006 at 06:55:18 PM by Jaime Kenedeno"and the like" trying to stir the pot of hate in a continual DO loop. One radio talk artist this afternoon referred to then and now. He said, at one time we had vast acres of open emptiness, (with a need to be occupied) else, another country would squat and possess the land. Now it is different he says now we are full and we dont want no more immigrants coming over the river. This is the same way of natural migration (to and fro) that used to be legal. Now this same method of immigrating across the Rio Grande is illegal. The problem is the Corporate & The Country's economy will suffer if there are no "illegal" (undocumented) workers. Will the prices go up if this pool of raw labor evaporates? Prices of what? Tomatoes? Produce?? Taquitos? Chinese Food?? He speaks as if they are a nuisance as does many a hater. In the same breath the economically ignorant want to put a WALL or Minute Men and now the National Guard. The is a waste of money and injurious to our Nations Economy. This is a Politicians Game of Divide & Conquer. A nuisance? Like Pests? Like Sugar Ants maybe, as the hater whines of the multitudes of human beings crossing the river daily("illegally" ? Why do Sugar Ants migrate and eventually reach their destination? A Sugar Ant migrates to the sugar. Just like a river will always run it's course and eventually makes another path when impeded. Reason will tell the haters, the source of their troubles is not the natural plight of the ants but rather the natural sustinence of the sugar ant which is sugar. To take away the natural sustinence of the undocumented worker is to take away the opportunities that are YANQUIED by our Corporate Elite. Put every one of them in JAIL! Not the ANTS but the Sugar Providers (EMPLOYERS). Fine the crap out of them. Then we will see that we need these little people in parable;..... the ANTS.

As per the Rational of anti raw labor movement & immigration reform agitators....

2006-05-15T15:58:00.000-07:00

As per the Rational of anti raw labor movement & immigration reform agitators....
Posted on May 15, 2006 at 06:55:18 PM by Jaime Kenedeno

"and the like" trying to stir the pot of hate in a continual DO loop. One radio talk artist this afternoon referred to then and now.

He said, at one time we had vast acres of open emptiness, (with a need to be occupied) else, another country would squat and possess the land. Now it is different he says now we are full and we dont want no more immigrants coming over the river. This is the same way of natural migration (to and fro) that used to be legal. Now this same method of immigrating across the Rio Grande is illegal.

The problem is the Corporate & The Country's economy will suffer if there are no "illegal" (undocumented) workers.

Will the prices go up if this pool of raw labor evaporates?

Prices of what?

Tomatoes? Produce?? Taquitos? Chinese Food??

He speaks as if they are a nuisance as does many a hater. In the same breath the economically ignorant want to put a WALL or Minute Men and now the National Guard. The is a waste of money and injurious to our Nations Economy.

This is a Politicians Game of Divide & Conquer.

A nuisance?

Like Pests?

Like Sugar Ants maybe, as the hater whines of the multitudes of human beings crossing the river daily("illegally" ?

Why do Sugar Ants migrate and eventually reach their destination?

A Sugar Ant migrates to the sugar.

Just like a river will always run it's course and eventually makes another path when impeded.

Reason will tell the haters, the source of their troubles is not the natural plight of the ants but rather the natural sustinence of the sugar ant which is sugar.

To take away the natural sustinence of the undocumented worker is to take away the opportunities that are YANQUIED by our Corporate Elite.

Put every one of them in JAIL!

Not the ANTS but the Sugar Providers (EMPLOYERS).

Fine the crap out of them.

Then we will see that we need these little people in parable;..... the ANTS.

corpuschristiyourhub: Quantum Meruit Corpus Christi Caller Times

2006-05-15T00:08:00.000-07:00

corpuschristiyourhub: Quantum Meruit Corpus Christi Caller Times

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2006-03-23T19:00:00.000-08:00

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2006-02-01T23:35:00.000-08:00

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