Sale for Resale Exemption Excludes Cable Reels

In an opinion issued by the Third Court of Appeals in Austin affirming the Travis County District Court ruling, the higher court agreed with the lower that purchases of cable reels by Houston Wire and Cable Company did not qualify for either the sale-for-resale exemption or manufacturig exemption.

FACTUAL AND PROCEDURAL BACKGROUND

The background facts are undisputed. HWC is a supplier of electrical wire and cable. HWC buys cable in bulk from suppliers and maintains the cable in its inventory. HWC cuts, spools, and delivers cable according to the specific needs of its customers, who are primarily electrical wholesalers and distributors. When HWC purchases cable from its suppliers, the cable is delivered on reels. When HWC receives orders from its customers, it cuts and respools the cable onto new reels. The reels used by HWC to respool the cable are the subject of this lawsuit. They are purchased by HWC to allow it to customize the cable assemblies for its customers. A customer's order could specify, for instance, the type, arbor size, color, coding, labeling, lagging, attachments, or fumigations requirements for the reels. In the process of respooling, HWC attaches the reels to the specific cable ordered by the customer.
The parties agree that purchases of the cable itself qualify for the sale-for-resale sales tax exemption. HWC contends that its purchases of the reels, likewise, qualify for the sale-for-resale exemption and, therefore, paid the sales tax under protest for the period in question, August 1, 1997, through December 31, 2001. The amount of the refund at issue is $160,596.03, which includes the tax paid on the reels plus statutory pro rata interest for the refund period.
HWC contends that it is entitled to a refund because purchases of the reels, like purchases of the cable, qualify for the sale-for-resale exemption. Alternatively, even if the reels are excluded from the sale-for-resale exemption, HWC argues that it is entitled to a refund because it qualifies for the manufacturing exemption. On both points, HWC challenges the legal and factual sufficiency of the district court's findings.
After the Comptroller denied its refund claim, HWC filed suit in district court. Following a trial de novo, see Tex. Tax Code Ann. §§ 112.054, .154 (West 2001), the district court granted judgment in favor of the Comptroller on all issues. This appeal followed.

Processing:

In affirming the lower court, the 3rd Court of Appeals agreed that Appellant was not engaged in "processing" as defined by the court and specifically defined under Comptroller Rule 3.300(a), which in summary is the "...physical application of the materials and labor necessary to modify or to change the characteristics of tangible personal property."

For further reasons, the court of appeals affirmed the lower courts ruling, and the Texas Comptroller's prior determination.

For the full opinion, click here:


Houston%20Wire%20%26%20Cable%20Co.%20vs.%20Texas%20Comptroller.pdf

In The Interest of KCB, a Child

In a 2008 per curiam opinion by the Texas Supreme Court, in the case of In The Interest of KCB, a Child, No. 07-1068 (Tex. Apr. 18, 2008), the court held that the Parent was entitled to review on the merits in appeal from order terminating parental rights, and that the omission of statement listing points of errors from appellate record was not parent's fault. The opinion stated that:

"As a prerequisite to appellate review, the Texas Family Code requires a party whose parental rights have been terminated to timely file with the trial court a statement of points on which the party intends to appeal. Tex. Fam. Code § 263.405(b), (i).[1] The petitioner in this case timely filed such a statement and designated it for inclusion in the clerk’s record, but the statement was omitted from the record that was filed with the appellate court. Concluding that the petitioner had failed to comply with the Family Code, the court of appeals affirmed the trial court’s judgment without addressing the merits. 240 S.W.3d 454, 455. The court of appeals denied the petitioner’s subsequent request to supplement the record and motion for rehearing. Id. We hold that the petitioner complied with the statutory requirements for appeal and that the court of appeals erred in denying her request to supplement the record on rehearing. Accordingly, we reverse the court of appeals’ judgment and remand the case for consideration of petitioner’s appeal on the merits."

The appeals court denied the review on a matter of technicality, however, the Texas Supreme Court reasoned that: "Given the constitutional dimensions of the “fundamental liberty interest of natural parents in the care, custody, and management of their child,” Santosky v. Kramer, 455 U.S. 745, 753 (1982), justice is not served when a case like this, ripe for determination on the merits, is decided on “a procedural technicality” that can easily be corrected, Silk, 898 S.W.2d at 766."

Texas Open Records Act Request Must Be Specific and In Writing

Under the Texas Open Records Requests Act, a person or entity can request for public information from a governmental agency regarding any public information not subject to exemption from open records. When requesting public information from any governmental agency, a request must be made in writing. Generally a letter will suffice. E-mails are also considered written requests. The requestor is entitled to receive the following:

Rights of Requestors: (You have the right to receive:)

(A) Prompt access to information that is not confidential or otherwise protected;
(B) Receive treatment equal to all other requestors, including accommodation in accordance with the Americans with Disabilities Act (ADA) requirements;
(C) Receive certain kinds of information without exceptions, like the voting record of public officials, and other information;
(D) Receive a written itemized statement of estimated charges, when charges will exceed $40, in advance of work being started and opportunity to modify the request in response to the itemized statement;
(E) Choose whether to inspect the requested information (most often at no charge), receive copies of the information, or both;
(F) A waiver or reduction of charges if the governmental body determines that access to the information primarily benefits the general public;
(G) Receive a copy of the communication from the governmental body asking the Attorney General for a ruling on whether the information can be withheld under one of the accepted exceptions, or if the communication discloses the requested information, a redacted copy;
(H) Lodge a written complaint about overcharges for public information with the Attorney General. Complaints of other possible violations may be filed with the county or district attorney of the county where the governmental body, other than a state agency, is located. If the complaint is against the county or district attorney, the complaint must be filed with the Attorney General.

For the full scope of the Texas Open Records Act, please see the Texas Attorney General's webpage at: http://www.oag.state.tx.us/open/pia/pia.shtml

In some instances however, some information may not be subject to open records. Each state agency has certain exemptions. For example, when requesting claimant information from the former Texas Worker's Compensation Commission now combined with the Texas Department of Insurance, a requestor requesting claimant information must make the request specific as to the claimant and the information sought.

See Texas Attorney General Letter Ruling - click here:
Open%20Records%20Request%20Ruling%20-%20TWCC.pdf
In the letter ruling, the Texas Attorney General opined that to the extent that the submitted information consists of claim file information that implicitly or explicitly identifies claimants, such information must be withheld under section 552.101 of the Government Code in conjunction with section 402.083 of the Labor Code.

In summary when requesting public information:
1. Make the request in writing;
2. Address the request to the relevant Open Records Officer for the state or governmental agency;
3. Keep your request specific;
4. Ask for the approximate costs of duplication or copies before you receive the requested information;
5. The agency has 10 days to provide your with the non-exempt public information; otherwise you a right to file a complaint with the Texas Attorney General and pursue litigation in state district court.

Prenuptial Agreement Precludes Admissibility of Fault

Where parties in a divorce case enter into an agreement as to the division of property, a party is then precluded from using fault in the final division. Such was the case in Bufkin v. Bufkin, No. 05-06-01719-CV, 259 SW3d 343 (Tex.App.- Dallas, July 1, 2008, pet. denied Nov. 2008).

Facts of the Case

Edward O. Bufkin, Jr. (“Edward”) sued his wife, Elizabeth W. Bufkin (“Elizabeth”), for divorce in 1996, after nine years of marriage. The ensuing, protracted divorce proceeding, including two trials and several mandamus proceedings, has been focused on what property is subject to division under the terms of a prenuptial agreement.

Edward and Elizabeth both stipulated to the validity and enforceability of the Agreement. The El Paso court held that once Edward made this stipulation, he could not then argue it was invalid. Section XI of the Agreement expressly provided for the division of property in the event of divorce. Specifically, “each party will take, in full settlement of his or her property and all other rights due upon divorce, only his or her separate property estate and his or her one-half (½) share of the community property estate of the parties.” The Texas Family Code authorizes such written agreements. Tex. Fam. Code Ann. §§ 4.001-4.009 (Vernon 2006). The Supreme Court, then opined that since the parties contracted how the community estate was to be divided in the event of divorce, provisions of the Texas Family Code allowing evidence of fault in divisions do not apply. The Agreement's terms dictated an even division of the community estate. Accordingly, evidence of fault was not relevant and the trial judge did not abuse her discretion when she excluded it.