SRC-SEW S.C.R. 39 77(R)   BILL ANALYSIS


Senate Research Center   S.C.R. 39
2001S0811/1By: Van de Putte
Finance
4/4/2001
As Filed


DIGEST

Under current law, neither the state nor any state agency may be sued
except where permission is granted by statute, unless permission is granted
by concurrent resolution of the Texas Legislature.  This concurrent
resolution allows the legislature to grant Carmen R. Melenyzer permission
to sue the State of Texas, and the Office of the Attorney General of Texas
individually and as next friend of Russell Glen Melenyzer, her son. 

Carmen R. Melenyzer, individually and as next friend of Russell Glen
Melenyzer, a child, alleges that: 
_ Carmen R. Melenyzer, (hereinafter "Melenyzer"), is a person for whom the
Office of the Attorney General of the State of Texas, (hereinafter "OAGTX")
by and through its agents, employees and functionaries, including the child
support division of the Office of the Attorney General collect child
support payable to her at some central collection site, believed to be in
Austin, Texas, and then pays the collected child support to her in San
Antonio, Bexar County, Texas. 

_ On and after the entry of a corrected decree of divorce on June 7, 1989,
at the direction of the OAGTX, all of Melenyzer's child support payments
have been paid through the OAGTX. 

_ Charles L. Melenyzer, (hereinafter "obligor"), being an out-of-state
resident, was, for this additional reason, necessarily required to make all
of his child support payments through the OAGTX. 

_ The OAGTX and the Attorney General of the State of Texas, pursuant to
their statutory duty, both state and federal, to preserve and protect the
rights of the children of Texas, and, in particular the child, Russell Glen
Melenyzer, (hereinafter "the child"), have expressly assumed the exclusive
right to receive and collect monthly court-ordered child support payments
for many of the children in Texas for whom child support is payable, but,
in any event, have expressly assumed the exclusive right to receive and
collect child support payable by the obligor to Melenyzer for and on behalf
of the child.  That is, Melenyzer has no choice but to allow the OAGTX and
the Texas Attorney General to collect child support payable to her. 

_ Melenyzer, relying upon the authority and duty of the OAGTX and the Texas
Attorney General to collect the monthly court-ordered child support
payments to which she and the child had a legal right, necessarily deferred
to their assumption of exclusivity in this arena, all to her detriment and,
more especially, that of the child. 

_ Melenyzer, again under the pre-eminence of the position of the OAGTX in
the area of collection of child support, has also necessarily been required
to rely upon the OAGTX to forward to her, for the use and benefit of the
child, any and all child support payments received by the OAGTX from
obligor with respect to the child, whether ordered or not, whether in
excess of the "court-ordered" amount or not. 

_ The OAGTX has been receiving from obligor, father of the child, the sum
of $83.00 per month for an extended period of time. 
 
_ Although the OAGTX has a fiduciary duty to Melenyzer, but more especially
to the child, to promptly record the receipt of the child support payments
and forward such payments to the designated recipient, that is, Melenyzer,
it has not. 

_ The OAGTX, based upon the information and belief of Melenyzer, as well as
upon the representations or admissions of the employees and agents of the
OAGTX, all of whom were then acting in the ordinary course and scope of
their employment, has been, since on or about October, 1999, and is
currently routinely breaching its fiduciary duty to Melenyzer and the child
by arbitrarily withholding or returning to the obligor, (or otherwise
disposing of the funds referenced herein), one-half or more of each monthly
payment made by obligor to Melenyzer for the support of the child through
the OAGTX, which payment is made in accordance with the applicable order in
the underlying case, being Cause No. 85-CI-04159, styled In the Interest of
Russell Glen Melenyzer, A Child. 

_ On or about October, 1999, Melenyzer began to receive less than the
$83.00 she had previously been being paid by obligor through the OAGTX.
Although no other order had been entered and although obligor was still
making monthly payments of $83.00 each month, the OAGTX, for some unknown
and inexplicable reason, began withholding monies from Melenyzer that were
rightly paid by obligor to her for the use and benefit of the child;  

_ The OAGTX has, since that time, withheld from Melenyzer the sum of at
least $41.50 each month through on or about May, 2000, when the OAGTX began
to again pay Melenyzer the entire amount received by the OAGTX and payable
to Melenyzer; however, prior to that time, especially in some recent
months, the OAGTX or the Texas Attorney General has arbitrarily withheld
more than one-half of the child payment received by the OAGTX from the
obligor for the use and benefit of the child. 

_ In this regard, and by way of explanation, the OAGTX receives a check or
other payment from the obligor, deposits that check into the treasury of
the State of Texas, (child support trust fund), into which all child
support checks from all obligors are presumably deposited, and then sends
Melenyzer, (and presumably all other obligees who receive their child
support payments through and from the OAGTX), a new check drawn on The
State of Texas. 

_ When Melenyzer sought to learn the reason for the wrongful confiscation
or conversion of Melenyzer's child support money by the OAGTX, she was
advised that the monies were being withheld to repay a some unknown and
undefined debt to the State of Texas in the sum of $10,000.00. 

_ Although she has requested an explanation on several occasions, each
inquiry is met with a different reason or explanation; at no time, however,
has she been provided with an accounting of the supposed account that she
owes to the State of Texas. 

_ Although an accounting has been verbally requested on several occasions
from several different employees and agents of the OAGTX, neither the State
of Texas, the Texas Attorney General, the OAGTX, or any other agency of the
State of Texas has sent Melenyzer a statement or bill for any sum at any
time indicating that she owes the State of Texas, the Texas Attorney
General, the OAGTX, or any other person the sum of $10,000.00, much less
any other sum. 

_ Without actual or constructive notice to Melenyzer of a hearing on this
issue of her indebtedness--although such an indebtedness is expressly
denied--much less without affording Melenyzer a hearing at which to present
evidence in her defense, the OAGTX, in violation of Melenyzer's civil
rights, began paying Melenyzer--and the child--one-half of the sum paid by
obligor. 
 
_ Although the OAGTX continues to receive the sum of $83.00 each month from
obligor for the use and benefit of Melenyzer and the Child, the OAGTX has
made reduced payments from the child support trust fund to Melenyzer of
$41.50 per month rather than the full $83.00 per month paid by obligor
through the OAGTX. 

_ As such, the OAGTX and Attorney General John Cornyn have breached the
fiduciary duty the State of Texas, by and through the Texas Attorney
General and the OAGTX owe Melenyzer and the child in wrongfully converting
or confiscating without lawful order monies owed to one of the children for
whom the OAGTX and Attorney General John Cornyn purportedly are collecting
child support money in accordance with their statutory charge. 

_ The OAGTX and Attorney General John Cornyn are liable to Melenyzer and
the child for actual damages for their gross breach of their fiduciary duty
to Melenyzer and the child in an amount yet to be determined since the
OAGTX refuses to provide Melenyzer with an accounting of the monies
received, withheld and paid, and, in particular, the reasons for
withholding the confiscated child support. 

_ The OAGTX and Attorney General John Cornyn are liable to Melenyzer and
the child for actual damages for unlawfully and without any legal
authorization to do so, confiscating and misdirecting monies due and
payable to Melenyzer for the use and benefit of the child in an amount yet
to be determined due to the refusal of the OAGTX to provide Melenyzer with
an accounting. 

_ Melenyzer requests declaratory relief to authorize a court to find that
the acts and omissions of the OAGTX as alleged hereinabove be declared
invalid and in contravention of its fiduciary, statutory, or constitutional
duty to Melenyzer and the child, as well as the people of Texas. 

_ The OAGTX has supplied false and incorrect information about Melenyzer's
entitlement to receive child support and the amount of child support she is
receiving that caused Melenyzer to be denied Medicaid for and on behalf of
her father when she made a claim for the payment by the agency involved of
some of the medical bills incurred by her father in 1999. 

_ This request for permission to sue the OAGTX is necessary in that
Melenyzer filed suit against the OAGTX in Cause No. 2000-CI-07323, styled
Carmen R. Melenyzer, Individually and As Next Friend of Russell Glen
Melenyzer, A Child v. John Cornyn, Attorney General of the State of Texas,
in his representative capacity, and the Office of the Attorney General of
The State of Texas, Child Support Division, in the District Court for the
285th Judicial District of Bexar County, Texas and, to prevent the OAGTX
from obtaining a dismissal with prejudice based upon its claim of sovereign
immunity, was required to take a non-suit of that lawsuit. 

_ This suit should be authorized to be brought in the county of the
residence of Melenyzer, that is, Bexar County, Texas. 

_ This suit should authorize Melenyzer, who necessarily was required to
retain legal counsel to attempt to protect her civil rights as referenced
hereinabove, to further recover the reasonable and necessary attorney's
fees rendered and to be rendered and costs of court incurred or to be
incurred on her behalf and that of the child in filing and prosecuting the
suit in Cause No. 2000-CI-07323, referenced above, but in any future legal
proceeding authorized by this resolution, and as otherwise authorized or
provided by the Texas Family Code. 

PURPOSE

As proposed, S.C.R. 39:

 Provides that Carmen R. Melenyzer, individually and as next friend of
Russell Glen Melenyzer, a child, or any other person who may hereafter be
appointed by the Court to act for or on behalf of the child, Russell Glen
Melenyzer, are granted permission to sue the State of Texas and John
Cornyn, Attorney General of the State of Texas, in his representative
capacity, and the Office of the Attorney General of The State of Texas,
Child Support Division subject to Chapter 107 (Permission to Sue the
State), Civil Practice and Remedies Code.  Requires that the suit
authorized by this resolution be brought in Bexar County.  Provides that
John Cornyn, Attorney General of the State of Texas, in his representative
capacity and the director of the child support division of the attorney
general's office be served process as provided by Subdivision (3),
Subsection (a), Section 107.002 (Effect of Grant of Permission), Civil
Practice and Remedies Code.