
NO. 07-02-0250-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 28, 2002

______________________________


SAMMY CHAVEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

NO. 2104-B; HONORABLE GORDON GREEN, JUDGE

_______________________________

Before REAVIS and JOHNSON, J.J., and BOYD, S.J. (1)
	On June 5, 2002, a copy of a Notice of Appeal in cause No. 2104-B in the 287th
District Court of Bailey County, Texas (the trial court), was filed with the clerk of this court
(the appellate clerk).  The document filed gives notice that Sammy Chavez desires to
appeal from a conviction and sentence in such court and cause number.  On June 25,
2002, a docketing statement was filed with the appellate clerk which sets out that the
appeal is from a judgment or order dated May 8, 2002, and that an affidavit of indigency
was filed on May 24, 2002.  
	On July 25, 2002, a request for extension of time for filing the clerk's record was
filed with the appellate clerk.  By such request, the District Clerk of Bailey County (the trial
court clerk) advised that the clerk's record had not been paid for and no arrangements had
been made to pay for the record.  Pursuant to further requests, the times for filing the
clerk's record and the reporter's record have been extended.  Neither the clerk's record
nor the reporter's record has been filed, and the appellate clerk's record reflects no other
action by any party to the appeal to prosecute the appeal.  
	Accordingly, this appeal is abated and the cause is remanded to the trial court. 
Tex. R. App. P. 37.3(a)(2).  Upon remand, the judge of the trial court is directed to
immediately cause notice to be given of and to conduct a hearing to determine: (1) whether
appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal,
then whether appellant is indigent; (3) if appellant desires to prosecute this appeal,
whether appellant is entitled to have the clerk's and reporter's records furnished without
charge; and  (4) what orders, if any, should be entered to assure the filing of appropriate
notices and documentation to dismiss appellant's appeal if appellant does not desire to
prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the
clerk's and reporter's records will be promptly filed and that the appeal will be diligently
pursued. 
	The trial court is directed to: (1) conduct any necessary hearings; (2) make and file
appropriate findings of fact, conclusions of law and recommendations, and cause them to
be included in a clerk's record on remand; (3) enter any orders appropriate to the
circumstances; (4) cause the hearing proceedings to be transcribed and included in a
reporter's record; and (5) have a record of the proceedings made to the extent any of the
proceedings are not included in the supplemental clerk's record or the reporter's record. 
In the absence of a request for extension of time from the trial court, the clerk's record on
remand, reporter's record of the hearing and proceedings pursuant to this order, and any
additional proceeding records, including any orders, findings, conclusions and
recommendations, are to be sent so as to be received by the clerk of this court not later
than November 29, 2002. 	
 
									Per Curiam
Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.


hich it was based.  On
agreement of the parties the court severed the claims against the Wards, making
disposition of those claims final.  This appeal is brought from the judgment on the severed
claims.  The two issues appellant's brief asks us to determine are whether the trial court
erred in (1) granting partial summary judgment on his claims for negligent entrustment,
negligence per se, and gross negligence on traditional grounds, and (2) granting partial
summary judgment on no-evidence grounds on his claims of negligent entrustment,
negligence per se and his ability to maintain a survival action. (4) 
	In our review of the trial court's grant of summary judgment, we apply the standards
of review set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49
(Tex. 1985) (traditional motion) and King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51
(Tex. 2003) (no-evidence motion).  
Negligent Entrustment
	We begin by considering whether the Wards established entitlement to summary
judgment on appellant's negligent entrustment claim.  To establish a claim for negligent
entrustment the plaintiff must show (1) entrustment of a vehicle by the owner;  (2) to an
unlicensed, incompetent, or reckless driver;  (3) that the owner knew or should have known
to be unlicensed, incompetent, or reckless; (4) that the driver was negligent on the
occasion in question and (5) that the driver's negligence proximately caused the accident. 
Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). 
	The Wards' summary judgment motion addressed the second and third elements
through traditional and no-evidence grounds.  We focus on the third element, which
requires proof the owner knew or should have known the driver was unlicensed,
incompetent or reckless.  Schneider, 744 S.W.2d at 596.  There is no dispute Courtney
held a valid driver's license permitting operation of the type of vehicle she was driving.  Via
their no-evidence motion, the Wards asserted appellant had no evidence they knew or
should have known her to be an incompetent or reckless driver.
	To raise a fact issue regarding the Wards' knowledge of their daughter's asserted
incompetence or recklessness, appellant relies on evidence they knew of Courtney's youth
and her lack of experience as a driver on a night-time highway trip like she undertook on
that occasion, and knew that Courtney would violate Texas Transportation Code section
545.424(a) during the fatal return trip to Lubbock.  
	Appellant does not contend the Wards knew, or should have known, of any instance
in which Courtney, on any prior occasion, had driven in an unlawful, unsafe or otherwise
improper manner. (5)  The record contains no evidence she had been issued a traffic citation
or been involved in a previous accident, or that the Wards' experience riding with their
daughter had revealed incompetence or recklessness.  Cf. Pesina v. Hudson, 132 S.W.3d
133 (Tex.App.-Amarillo 2004, no pet.) (parents knew of six driving incidents in previous
two years); Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex.App.-Dallas 2004, pet. denied)
(summary judgment for owner affirmed in absence of evidence she knew entrustee had
driven while intoxicated before); Russell, 949 S.W.2d at 490 (father aware, or should have
been, of son's six or seven tickets in previous two years).  Rather, appellant emphasizes
evidence that Courtney had limited experience driving long distances, at night on the open
road, and evidence she had never before driven out-of-town "by herself."  
	Appellant cites the holding in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d
1063 (Tex.Comm.App. 1939), that "the condition and experience of a young driver was
some evidence of his incompetence."  Examination of that opinion shows the court's
conclusion some evidence supported a finding of incompetence was based on more than
youth and inexperience.  The opinion does not indicate whether the driver possessed a
license.  It recites he "had but a limited experience in driving automobiles; had never driven
a car of the same make[.]"  122 S.W.2d at 1067.  The court also had before it the
testimony of the car owner that during their trip from Galveston to Houston, she "didn't let
him drive long, because I was just afraid,- wasn't used to him and my daughter said she
couldn't ride with him driving[.]" Id.  Appellant also cites Revisore v. West, 450 S.W.2d 361
(Tex.Civ.App.-Houston [14th Dist.] 1970, no writ.), pointing to language from that opinion
stating an entrustor may be deemed negligent where an entrustee is "for any reason
lacking in judgment or perception."  Id. at 364. Viewed in the light most favorable to
appellant, the evidence here bears little resemblance to that of Seinsheimer or Revisore. 
We do not agree that evidence of Courtney's inexperience permits an inference she lacked
judgment or perception, or was otherwise an incompetent driver. 
	Appellant also contends an amended answer raising the issue of Janell's negligence
"in riding with an inexperienced driver after . . . midnight" is an admission Courtney "lacked
the experience necessary to be a competent driver."  It is undisputed Courtney did not
have experience driving a relatively long distance at night and the Wards were aware of
that.  We agree the pleading can be taken as an admission Courtney was an
inexperienced driver, but do not agree it is an admission of her incompetence.  As
appellant acknowledges, inexperience alone does not constitute incompetence as a driver. 
See Bartley, 919 S.W.2d at 752 (noting "inexperience" is not present in the "elemental
definition" of negligent entrustment).  
	We turn to appellant's contention that a fact issue is raised on the knowledge
element by evidence the Wards knew Courtney would be in violation of Texas
Transportation Code section 545.424(a) on the return trip to Lubbock.  Enacted by the
Legislature in 2001, section 545.424(a) contains restrictions on operation of a motor
vehicle by a person under eighteen during the six-month period following issuance of the
new driver's license.  Tex. Transp. Code Ann. § 545.424(a) (Vernon Supp. 2006).
Appellant cites two of the restrictions as applicable here, section 545.424(a)(1), which
prohibits such drivers from operating a motor vehicle "after midnight and before 5 a.m.
unless operation of the vehicle is necessary for the operator to attend or participate in
employment or a school-related activity or because of a medical emergency"; and section
545.424(a)(2), which prohibits such drivers from carrying more than one passenger under
21 years old who is not a family member.  The Wards do not dispute that Courtney was
subject to the restrictions of section 545.424(a) in September 2003. 
	Assuming, arguendo, that knowledge Courtney would violate section 545.424(a)(2)
by having two passengers of minor age in the vehicle on her return to Lubbock would be
probative of recklessness, we see no summary judgment evidence that the Wards were
made aware of that possibility at the time they gave permission for the trip. As noted, Janell
decided to ride back to Lubbock with Courtney after they arrived in Odessa.  Courtney's
apparent violation of section 545.424(a)(2) on that occasion does not raise a fact issue on
the knowledge element of negligent entrustment.
	The parties apply very different interpretations to the language of section
545.424(a)(1), the driving curfew statute.  Appellant argues that because Courtney's
attendance at the game was not required, she violated the statute and the Wards knew she
would be in violation when returning from the game.  The Wards contend Courtney's
voluntary attendance at the University Interscholastic League-sanctioned football game fell
within the exception for attendance of school-related activities.  Summary judgment
evidence showed the Wards expected Courtney to arrive home between midnight and 1
a.m.  Disposition of this appeal does not require us to determine whether a fact issue was
raised concerning Courtney's violation of the driving curfew statute.  Even assuming her
return trip violated the statute, and further assuming the violation of the driving curfew
statute would be probative of recklessness, it is evidence the Wards knew of a single
prospective violation of the Transportation Code.  Courts have uniformly held individual or
isolated driving violations are not evidence of recklessness or incompetence.  See Louis
Thames Chevrolet Co. v. Hathaway, 712 S.W.2d 602, 604 (Tex.App.--Houston [1st Dist.]
1986, no writ) (single ticket not legally sufficient to establish incompetence or
recklessness); Broesche v. Bullock, 427 S.W.2d 89, 93 (Tex.Civ.App.--Houston [14th Dist.]
1968, writ ref'd n.r.e.) (proof of single violation "grossly inadequate to establish
incompetency or recklessness");  Mayer v. Johnson, 148 S.W.2d 454, 457 (Tex.Civ.App.--Amarillo 1941, writ dism'd) (single incident not sufficient to establish driver was
incompetent, reckless or careless). 
	Viewing the evidence in the light most favorable to appellant, as we must, we
conclude nonetheless there is no summary judgment evidence the Wards knew or should
have known Courtney was an incompetent or reckless driver, either generally or with
regard to the trip from Odessa to Lubbock.  The trial court did not err by granting the Wards
summary judgment on the negligent entrustment claim.	Negligence Per Se
	Appellant's pleadings alleged the Wards violated Transportation Code section
545.424(a) by allowing Courtney to operate a motor vehicle after midnight and before 5
a.m., and with more than one passenger under the age of 21 who was not a family
member.  Those asserted violations of sections 545.424(a)(1) and (2) form the basis for
appellant's negligence per se claim against the Wards.  As appellant's reply brief puts it,
his "negligence per se claim is based on the Wards' actions in allowing their daughter to
knowingly violate Texas Transportation Code § 545.424." 
	The elements of a negligence cause of action are a duty, a breach of that duty, and
damages proximately caused by the breach of duty.  Doe v. Boys Club of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995).  The doctrine of negligence per se permits a court
to use a penal statute to define the applicable standard of conduct in some circumstances. 
Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001); Perry v. S.N., 973 S.W.2d 301, 304
(Tex. 1998).  When applicable, proof of violation of the statute establishes breach of the
standard of conduct. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.
1979); Borden, Inc. v. Price, 939 S.W.2d 247, 250 (Tex.App.-Amarillo 1997, writ denied). 
	The Wards' no-evidence and traditional motions for partial summary judgment
presented the contention that violation of section 545.424(a)(1) and (2) could not support
a negligence per se claim against them.  We initially note that the Wards contended in the
trial court, and continue to do so here, that appellant's negligence per se claim based on
section 545.424(a) simply asserted another variation of his negligent entrustment claim,
and cannot exist outside the framework of negligent entrustment.  Appellant insists that the
duty recognized in Rodriguez v. Spencer, 902 S.W.2d 37, 42 (Tex.App.-Houston [1st Dist.]
1995, no writ), by which a parent may be "directly liable to a third party when the parent
negligently permits the child to act in a manner likely to cause injury to another," provides
the basis for a cause of action against the Wards, independent of his negligent entrustment
claim.  We need not address this initial disagreement, (6) because we agree with the Wards
that section 545.424(a) cannot provide a standard of conduct for parents of a newly-licensed under-18 driver that makes application of negligence per se appropriate.  
	The conduct proscribed by section 545.424(a) is the operation of a motor vehicle
by the newly-licensed under-18 driver under certain circumstances.  On its face, the statute
neither prescribes nor proscribes conduct by the parents of such a driver. (7)  Undisputed
evidence establishes that the Wards did not violate section 545.424(a) because they were
not driving the vehicle at the time of the accident, and could not violate it because they are
over 18 years of age.  Responding on appeal to the Wards' contention that violation of
section 545.424 was impossible for them, appellant cites Rodriguez and its language
concerning parental duties.  But to establish negligence per se, appellant would be
required to prove not simply that the Wards owed a duty under our tort law to Janell
Aboushadid but that the statute provides the required standard of conduct. Perry, 973
S.W.2d at 304-05.  The standard for the Wards' conduct can hardly be provided by a
statute that by its terms is inapplicable to them.  
	Among the factors courts consider to determine whether a penal statute can be the
basis for negligence per se is the clarity with which it defines the prohibited or required
conduct.  Perry, 973 S.W.2d at 307.  Section 545.424 defines no prohibited or required
conduct applicable to the Wards or other parents who, under appellant's contention, would
be subject to liability.  See Perry, 973 S.W.2d at 305 (court must consider whether
imposition of tort liability on "any and every person" violating statute is appropriate).  This
factor alone requires the conclusion that appellant could not maintain a negligence per se
action against the Wards based on section 545.424(a).  See Perry, 973 S.W.2d at 306
(issue whether statute should form basis of negligence per se not properly resolved by
counting factors); Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 841-42 (Tex.App.-
Fort Worth 2006, no pet.) (applying Perry factors).  Summary judgment on appellant's
negligence per se claim was proper.  
Gross negligence
	Appellant's pleadings asserted the Wards were grossly negligent and sought
exemplary damages under chapter 41 of the Civil Practice & Remedies Code.  See Tex.
Civ. Prac. & Rem. Code Ann. § 41.003 (Vernon Supp. 2006) (standards for recovery of
exemplary damages).  The Wards' partial summary judgment motion asserted that
appellant could not recover exemplary damages because he had no viable negligence
cause of action against them.  We agree.   Tex. Civ. Prac. & Rem. Code Ann. § 41.004;
Juliette Fowler Homes v. Welch Assoc., 793 S.W.2d 660, 667 (Tex. 1990) (recovery of
actual damages prerequisite to award of exemplary damages).  
	Appellant's issues are overruled, and the trial court's judgment is affirmed. 



						James T. Campbell
						         Justice
1.  John T. Boyd, Chief Justice (Ret.) and Don H. Reavis, Justice (Ret.), Seventh
Court of Appeals, sitting by assignment.  
2.  In this opinion, we refer to Gary and Shana Ward as "the Wards."
3.  The motion challenged appellant's standing to assert a claim on behalf of Janell
and raised the defense of release based on the settlement agreement.  We do not reach
those issues. 
4.  The Wards' brief parses these issues into twelve reply issues.  Global challenges
to the propriety of the summary judgment are permitted, Malooly Bros., Inc. v. Napier, 461
S.W.2d 119, 121 (Tex. 1970), and we address the issues as presented in appellant's brief.
5.  Nor does appellant argue there was evidence of Courtney's recklessness or
incompetence as a driver of which the Wards were not aware, but should have been.  See,
e.g., Russell v. Ramirez, 949 S.W.2d 480, 490 (Tex.App.-Houston [14th Dist.] 1997, no
writ) (father should have known, even if he did not, of son's six or seven tickets in previous
two years); Bartley v. Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex.App.-Amarillo
1996, writ denied) (under circumstances, rent car company had no duty to "inquire further"
into competency of licensed driver).
6.  And we express no opinion on the possible application to the Wards of the quoted
language from Rodriguez, 902 S.W.2d at 42. 
7.  Neither appellant's pleadings nor its response to the Wards' summary judgment
motion alleged the Wards had violated Transportation Code section 542.302, and the
effect of that statute is not before us.
