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Civil Litigation Click here for the full text of this decision On expiration of the time in which the trial court has plenary power, a judgment cannot be set aside by the trial court except by a timely-filed bill of review for sufficient cause. FACTS:Kerry and Rana married in 1997. Rana moved to Shreveport in 2001 and filed for divorce there on March 18, 2002. Kerry filed for divorce in Marion County, Texas, on March 20 of that year. The Texas judge filed a final decree of divorce on June 6, and a file-marked copy of the judgment was forwarded to Rana’s attorney on June 12, who received the copy on June 17. On Jul 15, 39 days after the final judgment, Rana filed a motion to vacate the final decree in Texas. The trial court granted the motion on March 31, 2003. Kerry filed for a writ of mandamus to compel the trial court to vacate its order to vacate. Kerry argues the court’s order was signed after its plenary power expired. HOLDING:Writ conditionally granted. Under T.R.Civ.P. 329b(a), a trial court generally has 30 days from the date its judgment is signed to entertain motions for new trial or to vacate, modify, correct or reform that judgment. There is an exception to this general rule when the adversely affected party does not receive notice of the judgment within 20 days; then, the 30-day period runs from the time the party finally does receive notice. Here, the order was signed 39 days after the judgment, which would be too late unless the exception applies. Rana’s attorney received the notice on June 16, though, which was a mere 11 days after the judgment was signed, not the requisite 20. The trial court no longer had jurisdiction to modify its order of divorce, the court rules. The court also rules that Rana’s motion to vacate does not qualify as a bill of review, which could have been filed more than 30 days after the date of the judgment. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ. FACTS:Amarillo police, executing a search warrant issued by a Potter County judge, seized 124 “eight-liners” � electronic amusement machines � owned by Stars and Stripes Sweepstakes and leased to Sunrise Entertainment. Five days before the county court handed down 15 felony indictments against Sunrise, Stars and Stripes filed suit against the city and the county entitled “Petition for Return of Illegally Seized Property and Motion to Show Cause Subject to Article 18.18(b) of the Texas Code of Criminal Procedure.” Article 18.18(b) provides for an adjudication of whether seized property is subject to forfeiture only in instances in which there is no prosecution or conviction following seizure. The city and the county challenged the court’s subject matter jurisdiction, but the trial court denied those challenges. On appeal, the county argues the trial court lacks subject matter jurisdiction because the case is not ripe and Stars and Stripes does not have standing. Together, the city and county argue that pursuant to State v. Morales, 869 S.W.2d 941 (Tex. 1994), a court exercising civil jurisdiction should not interfere with the “ordinary enforcement” of a penal statute unless the statute is unconstitutional and its enforcement will cause irreparable injury to vested property rights, a principle reaffirmed by Letson v. Barnes, 979 S.W.2d 418 (Tex.App. � Amarillo 1998, pet. denied). HOLDING:Reversed and remanded. The court quickly confirms that it has jurisdiction to consider an interlocutory appeal from governmental entities such as the city and county. The case is ripe, the court rules, because Stars and Stripes machines have been seized, the company wants to reclaim them, and their claims are not dependent on uncertain future events. Contrary to what the county argues, the invocation of Article 18.18(b) is not limited to magistrates or law enforcement officials, and the company has standing to pursue its claims. Nevertheless, the court rules Stars and Stripes’ pleadings do not attack the constitutionality of the forfeiture statute, nor do they allege an irreparable injury to property rights, so Morales bars pursuit of their claim. Stars and Stripes also argues that Article18.18(b) expressly authorizes its suit since, as owners of the machines rather than their operator, they cannot be subject to criminal prosecution. The statute contains no such limitation on who cannot be charged, the court says, and case law does not hold that “any forfeiture proceeding must be conducted under article 18.18(b) unless the person claiming an interest in the property has been prosecuted.” Finally, the court rules the city and county are immune from suit as the pleadings are currently written. OPINION:Campbell, J.; Johnson, C.J., Reavis and Campbell, JJ. FACTS:A trial court in Orange County certified a class of plaintiffs to pursue product liability claims against Warner-Lambert Co. and other makers of over-the-counter head lice repellants. The trial court found that issues, including whether the defendants misrepresented their products through advertising and marketing and whether the products were fit for their intended use, were common to all plaintiffs. The trial court characterized the claims as ones primarily concerned with marketing and promotion. The plaintiffs breach of warranty claims were proper for class-action disposal, the trial court ruled, because all plaintiffs would be challenging whether the products were chemically and scientifically ineffective, regardless of individual results. The defendants contend that class action in state court is improper because the plaintiffs claims are pre-empted by the federal Food, Drug, and Cosmetic Act, 21 U.S.C. �301-397, which regulates over-the-counter drugs. HOLDING:Vacated and remanded. The plaintiffs claims are pre-empted. As the trial court’s own certification order discussed, the plaintiffs’ claims rest on whether the anti-lice products were formulated, not whether there is a defect or a digression from FDA-approved formulation guidelines or whether the defendants’ advertising confirmed to those guidelines. This litigation would impose a state requirement that is “different from or in addition to, or that is otherwise not identical with,” a requirement under the Act, the court determines. “We conclude appellees’ claims, as certified by the trial court, conflict with the FDA’s specific requirements for active ingredients and labeling of pediculicide drug products.” OPINION:Gualtney, J.; McKeithen, C.J., Burgess and Gualtney, JJ. DISSENT:Burgess, J. The dissent would hold that the claims are not preempted by FDA regulations and would rule on the merits of the appeal. FACTS:Appellant, firefighter Elmer F. Williams II, appeals a take-nothing judgment rendered after the trial court denied Williams’s motions for partial summary judgment and granted 1. the summary judgment motions of the Houston Firemen’s Relief and Retirement Fund and the individual appellees, who were the fund’s board members (collectively, “the trustees”); and 2. the summary judgment motions and dismissal motion of appellee the city of Houston. The court issued an original opinion in this appeal on Dec. 27, 2001. The appellant moved for rehearing, as did the fund and the trustees. The court grants Williams’ motion for rehearing. Williams joined the Houston Fire Department and the fund in 1990, after six years and five months of service with two other cities’ fire departments, neither of which had statutory firefighters’ retirement funds like Houston’s. In 1995, Williams sought to purchase prior service credit (PSC) under the firemen’s retirement-fund statute for these six years and five months of service to be applied toward his retirement with HFD. The PSC provision of the former retirement statute, �30, provided: “A firefighter who transfers from the fire department of one city to that of a city covered by this Act and desires to participate in the fund of that city shall: . . . [meet three requirements, including paying "into the fund of that city an amount equal to the total contribution he would have made had he been employed by that city instead of the city from which he transferred'].” The statute was silent as to whether the city from which the firefighter transferred had to have a fund. While Williams’ request was pending, the fund adopted guidelines construing �30: Years worked outside Houston could be credited toward retirement only if the former city had a similar statutory firefighter’s fund. Applying the guidelines, the fund denied Williams’s PSC request in January 1997. The reason for that denial was that the cities in which Williams had worked before did not have firefighters’ retirement funds similar to Houston’s. Subsequently, the Legislature repealed Article 6243e.2 and replaced it with Article 6243e.2(1). Article 6243e.2(1), the current retirement statute, restated and amended former Article 6243e.2, the former retirement statute, and continued in effect each firefighters’ relief and retirement fund established under that article. The PSC provision of the current retirement statute, �16(a), provides: “A person who becomes a firefighter in a municipality to which this article applies may receive service credit for prior employment with the fully paid fire department of another municipality in this state with a similar fundbenefitting only firefighters of that municipality to which the firefighter contributed if . . . [the firefighter meets five requirements].” The fund and the trustees interpreted the first sentence of former �30(a) to mean what the italicized portion of current �16(a) now expressly says. HOLDING:Affirmed as modified. The court modifies the judgment rendered on Williams’ statutory and common- law claims against the fund, the trustees (in either capacity) and the city to dismiss those claims without prejudice for lack of subject matter jurisdiction. The court holds that Williams has no statutory right to judicial review of his claims. However, Texas law recognizes a right to judicial review of administrative orders that violate a constitutional right. The court holds that Williams has standing to raise his constitutional claims, but those claims are without merit. The court further holds that the city is immune to Williams’s Trust Code and common-law claims under the doctrine of sovereign or governmental immunity and that the trustees are immune under the doctrine of official immunity. OPINION:Evelyn V. Keyes, J.; Hedges, Taft and Keyes, JJ. CONCURRENCE AND DISSENT:Tim Taft, J. “I would grant Williams’s rehearing motion and deny the Fund and the trustees’ joint rehearing motion as moot. I would also reverse the judgment to the extent that it was rendered in favor of the Fund and the trustees in their individual capacities and remand the cause. I would further instruct the trial court, upon remand, to render a declaratory judgment in favor of Williams concerning the Fund’s interpretation of the former retirement statute’s PSC provision that underlay the guidelines and the PSC determination. I would affirm the judgment to the extent that it was rendered in favor of the City.”

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