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.