By Martinez Fischer H.C.R. No. 208
2001S0811/1
HOUSE CONCURRENT RESOLUTION
1-1 WHEREAS, Carmen R. Melenyzer, individually and as next friend
1-2 of Russell Glen Melenyzer, a child, alleges that:
1-3 (1) Carmen R. Melenyzer, (hereinafter "Melenyzer"), is a
1-4 person for whom the Office of the Attorney General of the State of
1-5 Texas, (hereinafter "OAGTX") by and through its agents, employees
1-6 and functionaries, including the child support division of the
1-7 Office of the Attorney General collect child support payable to her
1-8 at some central collection site, believed to be in Austin, Texas,
1-9 and then pays the collected child support to her in San Antonio,
1-10 Bexar County, Texas;
1-11 (2) On and after the entry of a corrected decree of divorce
1-12 on June 7, 1989, at the direction of the OAGTX, all of Melenyzer's
1-13 child support payments have been paid through the OAGTX;
1-14 (3) Charles L. Melenyzer, (hereinafter "obligor"), being an
1-15 out-of-state resident, was, for this additional reason, necessarily
1-16 required to make all of his child support payments through the
1-17 OAGTX;
1-18 (4) The OAGTX and the Attorney General of the State of
1-19 Texas, pursuant to their statutory duty, both state and federal, to
1-20 preserve and protect the rights of the children of Texas, and, in
1-21 particular the child, Russell Glen Melenyzer, (hereinafter "the
1-22 child"), have expressly assumed the exclusive right to receive and
1-23 collect monthly court-ordered child support payments for many of
1-24 the children in Texas for whom child support is payable, but, in
1-25 any event, have expressly assumed the exclusive right to receive
2-1 and collect child support payable by the obligor to Melenyzer for
2-2 and on behalf of the child. That is, Melenyzer has no choice but
2-3 to allow the OAGTX and the Texas Attorney General to collect child
2-4 support payable to her;
2-5 (5) Melenyzer, relying upon the authority and duty of the
2-6 OAGTX and the Texas Attorney General to collect the monthly
2-7 court-ordered child support payments to which she and the child had
2-8 a legal right, necessarily deferred to their assumption of
2-9 exclusivity in this arena, all to her detriment and, more
2-10 especially, that of the child;
2-11 (6) Melenyzer, again under the pre-eminence of the position
2-12 of the OAGTX in the area of collection of child support, has also
2-13 necessarily been required to rely upon the OAGTX to forward to her,
2-14 for the use and benefit of the child, any and all child support
2-15 payments received by the OAGTX from obligor with respect to the
2-16 child, whether ordered or not, whether in excess of the
2-17 "court-ordered" amount or not;
2-18 (7) The OAGTX has been receiving from obligor, father of the
2-19 child, the sum of $83.00 per month for an extended period of time;
2-20 (8) Although the OAGTX has a fiduciary duty to Melenyzer,
2-21 but more especially to the child, to promptly record the receipt of
2-22 the child support payments and forward such payments to the
2-23 designated recipient, that is, Melenyzer, it has not;
2-24 (9) The OAGTX, based upon the information and belief of
2-25 Melenyzer, as well as upon the representations or admissions of the
2-26 employees and agents of the OAGTX, all of whom were then acting in
3-1 the ordinary course and scope of their employment, has been, since
3-2 on or about October, 1999, and is currently routinely breaching its
3-3 fiduciary duty to Melenyzer and the child by arbitrarily
3-4 withholding or returning to the obligor, (or otherwise disposing of
3-5 the funds referenced herein), one-half or more of each monthly
3-6 payment made by obligor to Melenyzer for the support of the child
3-7 through the OAGTX, which payment is made in accordance with the
3-8 applicable order in the underlying case, being Cause No.
3-9 85-CI-04159, styled In the Interest of Russell Glen Melenyzer, A
3-10 Child;
3-11 (10) On or about October, 1999, Melenyzer began to receive
3-12 less than the meager $83.00 she had previously been being paid by
3-13 obligor through the OAGTX. Although no other order had been
3-14 entered and although obligor was still making monthly payments of
3-15 $83.00 each month, the OAGTX, for some unknown and inexplicable
3-16 reason, began withholding monies from Melenyzer that were rightly
3-17 paid by obligor to her for the use and benefit of the child; the
3-18 OAGTX has, since that time, withheld from Melenyzer the sum of at
3-19 least $41.50 each month through on or about May, 2000, when the
3-20 OAGTX began to again pay Melenyzer the entire amount received by
3-21 the OAGTX and payable to Melenyzer; however, prior to that time,
3-22 especially in some recent months, the OAGTX or the Texas Attorney
3-23 General has arbitrarily withheld more than one-half of the child
3-24 payment received by the OAGTX from the obligor for the use and
3-25 benefit of the child;
3-26 (11) In this regard, and by way of explanation, the OAGTX
4-1 receives a check or other payment from the obligor, deposits that
4-2 check into the treasury of the State of Texas, (child support trust
4-3 fund), into which all child support checks from all obligors are
4-4 presumably deposited, and then sends Melenyzer, (and presumably all
4-5 other obligees who receive their child support payments through and
4-6 from the OAGTX), a new check drawn on The State of Texas;
4-7 (12) When Melenyzer sought to learn the reason for the
4-8 wrongful confiscation or conversion of Melenyzer's child support
4-9 money by the OAGTX, she was advised that the monies were being
4-10 withheld to repay a some unknown and undefined debt to the State of
4-11 Texas in the sum of $10,000.00; although she has requested an
4-12 explanation on several occasions, each inquiry is met with a
4-13 different and, often, more ludicrous reason or supposed
4-14 explanation; at no time, however, has she been provided with an
4-15 accounting of the supposed account that she owes to the State of
4-16 Texas, although an accounting has been verbally requested on
4-17 several occasions from several different employees and agents of
4-18 the OAGTX; neither the State of Texas, the Texas Attorney General,
4-19 the OAGTX, or any other agency of the State of Texas has sent
4-20 Melenyzer a statement or bill for any sum at any time indicating
4-21 that she owes the State of Texas, the Texas Attorney General, the
4-22 OAGTX, or any other person the sum of $10,000.00, much less any
4-23 other sum;
4-24 (13) Without actual or constructive notice to Melenyzer of a
4-25 hearing on this issue of her indebtedness--although such an
4-26 indebtedness is expressly denied--much less without affording
5-1 Melenyzer a hearing at which to present evidence in her defense,
5-2 the OAGTX, in violation of Melenyzer's civil rights, began paying
5-3 Melenyzer--and the child--one-half of the sum paid by obligor;
5-4 (14) Although the OAGTX continues to receive the sum of
5-5 $83.00 each month from obligor for the use and benefit of Melenyzer
5-6 and the Child, the OAGTX has made reduced payments from the child
5-7 support trust fund to Melenyzer of $41.50 per month rather than the
5-8 full $83.00 per month paid by obligor through the OAGTX; as such,
5-9 the OAGTX and Attorney General John Cornyn have breached the
5-10 fiduciary duty the State of Texas, by and through the Texas
5-11 Attorney General and the OAGTX owe Melenyzer and the child in
5-12 wrongfully converting or confiscating without lawful order monies
5-13 owed to one of the children for whom the OAGTX and Attorney General
5-14 John Cornyn purportedly are collecting child support money in
5-15 accordance with their statutory charge;
5-16 (15) The OAGTX and Attorney General John Cornyn are liable
5-17 to Melenyzer and the child for actual damages for their gross
5-18 breach of their fiduciary duty to Melenyzer and the child in an
5-19 amount yet to be determined since the OAGTX refuses to provide
5-20 Melenyzer with an accounting of the monies received, withheld and
5-21 paid, and, in particular, the reasons for withholding the
5-22 confiscated child support;
5-23 (16) The OAGTX and Attorney General John Cornyn are liable
5-24 to Melenyzer and the child for actual damages for unlawfully and
5-25 without any legal authorization to do so, confiscating and
5-26 misdirecting monies due and payable to Melenyzer for the use and
6-1 benefit of the child in an amount yet to be determined due to the
6-2 refusal of the OAGTX to provide Melenyzer with an accounting;
6-3 (17) Melenyzer requests declaratory relief to authorize a
6-4 court to find that the acts and omissions of the OAGTX as alleged
6-5 hereinabove be declared invalid and in contravention of its
6-6 fiduciary, statutory, or constitutional duty to Melenyzer and the
6-7 child, as well as the people of Texas;
6-8 (18) In addition to the above, the OAGTX has supplied false
6-9 and incorrect information about Melenyzer's entitlement to receive
6-10 child support and the amount of child support she is receiving that
6-11 caused Melenyzer to be denied Medicaid for and on behalf of her
6-12 father when she made a claim for the payment by the agency involved
6-13 of some of the medical bills incurred by her father in 1999;
6-14 (19) This request for permission to sue the OAGTX is
6-15 necessary in that Melenyzer filed suit against the OAGTX in Cause
6-16 No. 2000-CI-07323, styled Carmen R. Melenyzer, Individually and As
6-17 Next Friend of Russell Glen Melenyzer, A Child v. John Cornyn,
6-18 Attorney General of the State of Texas, in his representative
6-19 capacity, and the Office of the Attorney General of The State of
6-20 Texas, Child Support Division, in the District Court for the 285th
6-21 Judicial District of Bexar County, Texas and, to prevent the OAGTX
6-22 from obtaining a dismissal with prejudice based upon its claim of
6-23 sovereign immunity, was required to take a non-suit of that
6-24 lawsuit;
6-25 (20) This suit should be authorized to be brought in the
6-26 county of the residence of Melenyzer, that is, Bexar County, Texas;
7-1 and,
7-2 (21) This suit should authorize Melenyzer, who necessarily
7-3 was required to retain legal counsel to attempt to protect her
7-4 civil rights as referenced hereinabove, to further recover the
7-5 reasonable and necessary attorney's fees rendered and to be
7-6 rendered and costs of court incurred or to be incurred on her
7-7 behalf and that of the child in filing and prosecuting the suit in
7-8 Cause No. 2000-CI-07323, referenced above, but in any future legal
7-9 proceeding authorized by this resolution, and as otherwise
7-10 authorized or provided by the Texas Family Code; now, therefore, be
7-11 it
7-12 RESOLVED by the Legislature of the State of Texas, That
7-13 Carmen R. Melenyzer, individually and as next friend of Russell
7-14 Glen Melenyzer, a child, or any other person who may hereafter be
7-15 appointed by the Court to act for or on behalf of the child,
7-16 Russell Glen Melenyzer, are granted permission to sue the State of
7-17 Texas and John Cornyn, Attorney General of the State of Texas, in
7-18 his representative capacity, and the Office of the Attorney General
7-19 of The State of Texas, Child Support Division subject to Chapter
7-20 107, Civil Practice and Remedies Code; and, be it further
7-21 RESOLVED, That the suit authorized by this resolution shall
7-22 be brought in Bexar County; and, be it further
7-23 RESOLVED, That John Cornyn, Attorney General of the State of
7-24 Texas, in his representative capacity and the director of the child
7-25 support division of the attorney general's office be served process
7-26 as provided by Subdivision (3), Subsection (a), Section 107.002,
8-1 Civil Practice and Remedies Code.