By:  Van de Putte                                     S.C.R. No. 39
         2001S0811/1                            
 1-1                        SENATE CONCURRENT RESOLUTION
 1-2           WHEREAS, Carmen R. Melenyzer, individually and as next friend
 1-3     of Russell Glen Melenyzer, a child, alleges that:
 1-4           (1)  Carmen R. Melenyzer, (hereinafter "Melenyzer"), is a
 1-5     person for whom the Office of the Attorney General of the State of
 1-6     Texas, (hereinafter "OAGTX") by and through its agents, employees
 1-7     and functionaries, including the child support division of the
 1-8     Office of the Attorney General collect child support payable to her
 1-9     at some central collection site, believed to be in Austin, Texas,
1-10     and then pays the collected child support to her in San Antonio,
1-11     Bexar County, Texas;
1-12           (2)  On and after the entry of a corrected decree of divorce
1-13     on June 7, 1989, at the direction of the OAGTX, all of Melenyzer's
1-14     child support payments have been paid through the OAGTX;
1-15           (3)  Charles L. Melenyzer, (hereinafter "obligor"), being an
1-16     out-of-state resident, was, for this additional reason, necessarily
1-17     required to make all of his child support payments through the
1-18     OAGTX;
1-19           (4)  The OAGTX and the Attorney General of the State of
1-20     Texas, pursuant to their statutory duty, both state and federal, to
1-21     preserve and protect the rights of the children of Texas, and, in
1-22     particular the child, Russell Glen Melenyzer, (hereinafter "the
1-23     child"), have expressly assumed the exclusive right to receive and
1-24     collect monthly court-ordered child support payments for many of
 2-1     the children in Texas for whom child support is payable, but, in
 2-2     any event, have expressly assumed the exclusive right to receive
 2-3     and collect child support payable by the obligor to Melenyzer for
 2-4     and on behalf of the child.  That is, Melenyzer has no choice but
 2-5     to allow the OAGTX and the Texas Attorney General to collect child
 2-6     support payable to her;
 2-7           (5)  Melenyzer, relying upon the authority and duty of the
 2-8     OAGTX and the Texas Attorney General to collect the monthly
 2-9     court-ordered child support payments to which she and the child had
2-10     a legal right, necessarily deferred to their assumption of
2-11     exclusivity in this arena, all to her detriment and, more
2-12     especially, that of the child;
2-13           (6)  Melenyzer, again under the pre-eminence of the position
2-14     of the OAGTX in the area of collection of child support, has also
2-15     necessarily been required to rely upon the OAGTX to forward to her,
2-16     for the use and benefit of the child, any and all child support
2-17     payments received by the OAGTX from obligor with respect to the
2-18     child, whether ordered or not, whether in excess of the
2-19     "court-ordered" amount or not;
2-20           (7)  The OAGTX has been receiving from obligor, father of the
2-21     child, the sum of $83.00 per month for an extended period of time;
2-22           (8)  Although the OAGTX has a fiduciary duty to Melenyzer,
2-23     but more especially to the child, to promptly record the receipt of
2-24     the child support payments and forward such payments to the
2-25     designated recipient, that is, Melenyzer, it has not;
2-26           (9)  The OAGTX, based upon the information and belief of
 3-1     Melenyzer, as well as upon the representations or admissions of the
 3-2     employees and agents of the OAGTX, all of whom were then acting in
 3-3     the ordinary course and scope of their employment, has been, since
 3-4     on or about October, 1999, and is currently routinely breaching its
 3-5     fiduciary duty to Melenyzer and the child by arbitrarily
 3-6     withholding or returning to the obligor, (or otherwise disposing of
 3-7     the funds referenced herein), one-half or more of each monthly
 3-8     payment made by obligor to Melenyzer for the support of the child
 3-9     through the OAGTX, which payment is made in accordance with the
3-10     applicable order in the underlying case, being Cause No.
3-11     85-CI-04159, styled In the Interest of Russell Glen Melenyzer, A
3-12     Child;
3-13           (10)  On or about October, 1999, Melenyzer began to receive
3-14     less than the meager $83.00 she had previously been being paid by
3-15     obligor through the OAGTX.  Although no other order had been
3-16     entered and although obligor was still making monthly payments of
3-17     $83.00 each month, the OAGTX, for some unknown and inexplicable
3-18     reason, began withholding monies from Melenyzer that were rightly
3-19     paid by obligor to her for the use and benefit of the child; the
3-20     OAGTX has, since that time, withheld from Melenyzer the sum of at
3-21     least $41.50 each month through on or about May, 2000, when the
3-22     OAGTX began to again pay Melenyzer the entire amount received by
3-23     the OAGTX and payable to Melenyzer; however, prior to that time,
3-24     especially in some recent months, the OAGTX or the Texas Attorney
3-25     General has arbitrarily withheld more than one-half of the child
3-26     payment received by the OAGTX from the obligor for the use and
 4-1     benefit of the child;
 4-2           (11)  In this regard, and by way of explanation, the OAGTX
 4-3     receives a check or other payment from the obligor, deposits that
 4-4     check into the treasury of the State of Texas, (child support trust
 4-5     fund), into which all child support checks from all obligors are
 4-6     presumably deposited, and then sends Melenyzer, (and presumably all
 4-7     other obligees who receive their child support payments through and
 4-8     from the OAGTX), a new check drawn on The State of Texas;
 4-9           (12)  When Melenyzer sought to learn the reason for the
4-10     wrongful confiscation or conversion of Melenyzer's child support
4-11     money by the OAGTX, she was advised that the monies were being
4-12     withheld to repay a some unknown and undefined debt to the State of
4-13     Texas in the sum of $10,000.00; although she has requested an
4-14     explanation on several occasions, each inquiry is met with a
4-15     different and, often, more ludicrous reason or supposed
4-16     explanation; at no time, however, has she been provided with an
4-17     accounting of the supposed account that she owes to the State of
4-18     Texas, although an accounting has been verbally requested on
4-19     several occasions from several different employees and agents of
4-20     the OAGTX; neither the State of Texas, the Texas Attorney General,
4-21     the OAGTX, or any other agency of the State of Texas has sent
4-22     Melenyzer a statement or bill for any sum at any time indicating
4-23     that she owes the State of Texas, the Texas Attorney General, the
4-24     OAGTX, or any other person the sum of $10,000.00, much less any
4-25     other sum;
4-26           (13)  Without actual or constructive notice to Melenyzer of a
 5-1     hearing on this issue of her indebtedness--although such an
 5-2     indebtedness is expressly denied--much less without affording
 5-3     Melenyzer a hearing at which to present evidence in her defense,
 5-4     the OAGTX, in violation of Melenyzer's civil rights, began paying
 5-5     Melenyzer--and the child--one-half of the sum paid by obligor;
 5-6           (14)  Although the OAGTX continues to receive the sum of
 5-7     $83.00 each month from obligor for the use and benefit of Melenyzer
 5-8     and the Child, the OAGTX has made reduced payments from the child
 5-9     support trust fund to Melenyzer of $41.50 per month rather than the
5-10     full $83.00 per month paid by obligor through the OAGTX; as such,
5-11     the OAGTX and Attorney General John Cornyn have breached the
5-12     fiduciary duty the State of Texas, by and through the Texas
5-13     Attorney General and the OAGTX owe Melenyzer and the child in
5-14     wrongfully converting or confiscating without lawful order monies
5-15     owed to one of the children for whom the OAGTX and Attorney General
5-16     John Cornyn purportedly are collecting child support money in
5-17     accordance with their statutory charge;
5-18           (15)  The OAGTX and Attorney General John Cornyn are liable
5-19     to Melenyzer and the child for actual damages for their gross
5-20     breach of their fiduciary duty to Melenyzer and the child in an
5-21     amount yet to be determined since the OAGTX refuses to provide
5-22     Melenyzer with an accounting of the monies received, withheld and
5-23     paid, and, in particular, the reasons for withholding the
5-24     confiscated child support;
5-25           (16)  The OAGTX and Attorney General John Cornyn are liable
5-26     to Melenyzer and the child for actual damages for unlawfully and
 6-1     without any legal authorization to do so, confiscating and
 6-2     misdirecting monies due and payable to Melenyzer for the use and
 6-3     benefit of the child in an amount yet to be determined due to the
 6-4     refusal of the OAGTX to provide Melenyzer with an accounting;
 6-5           (17)  Melenyzer requests declaratory relief to authorize a
 6-6     court to find that the acts and omissions of the OAGTX as alleged
 6-7     hereinabove be declared invalid and in contravention of its
 6-8     fiduciary, statutory, or constitutional duty to Melenyzer and the
 6-9     child, as well as the people of Texas;
6-10           (18)  In addition to the above, the OAGTX has supplied false
6-11     and incorrect information about Melenyzer's entitlement to receive
6-12     child support and the amount of child support she is receiving that
6-13     caused Melenyzer to be denied Medicaid for and on behalf of her
6-14     father when she made a claim for the payment by the agency involved
6-15     of some of the medical bills incurred by her father in 1999;
6-16           (19)  This request for permission to sue the OAGTX is
6-17     necessary in that Melenyzer filed suit against the OAGTX in Cause
6-18     No. 2000-CI-07323, styled Carmen R. Melenyzer, Individually and As
6-19     Next Friend of Russell Glen Melenyzer, A Child v. John Cornyn,
6-20     Attorney General of the State of Texas, in his representative
6-21     capacity, and the Office of the Attorney General of The State of
6-22     Texas, Child Support Division, in the District Court for the 285th
6-23     Judicial District of Bexar County, Texas and, to prevent the OAGTX
6-24     from obtaining a dismissal with prejudice based upon its claim of
6-25     sovereign immunity, was required to take a non-suit of that
6-26     lawsuit;
 7-1           (20)  This suit should be authorized to be brought in the
 7-2     county of the residence of Melenyzer, that is, Bexar County, Texas;
 7-3     and,
 7-4           (21)  This suit should authorize Melenyzer, who necessarily
 7-5     was required to retain legal counsel to attempt to protect her
 7-6     civil rights as referenced hereinabove, to further recover the
 7-7     reasonable and necessary attorney's fees rendered and to be
 7-8     rendered and costs of court incurred or to be incurred on her
 7-9     behalf and that of the child in filing and prosecuting the suit in
7-10     Cause No. 2000-CI-07323, referenced above, but in any future legal
7-11     proceeding authorized by this resolution, and as otherwise
7-12     authorized or provided by the Texas Family Code; now, therefore, be
7-13     it
7-14           RESOLVED by the Legislature of the State of Texas, That
7-15     Carmen R. Melenyzer, individually and as next friend of Russell
7-16     Glen Melenyzer, a child, or any other person who may hereafter be
7-17     appointed by the Court to act for or on behalf of the child,
7-18     Russell Glen Melenyzer, are granted permission to sue the State of
7-19     Texas and John Cornyn, Attorney General of the State of Texas, in
7-20     his representative capacity, and the Office of the Attorney General
7-21     of The State of Texas, Child Support Division subject to Chapter
7-22     107, Civil Practice and Remedies Code; and, be it further
7-23           RESOLVED, That the suit authorized by this resolution shall
7-24     be brought in Bexar County; and, be it further
7-25           RESOLVED, That John Cornyn, Attorney General of the State of
7-26     Texas, in his representative capacity and the director of the child
 8-1     support division of the attorney general's office be served process
 8-2     as provided by Subdivision (3), Subsection (a), Section 107.002,
 8-3     Civil Practice and Remedies Code.