Opinion filed June 28, 2019




                                           In The

           Eleventh Court of Appeals
                                        __________

                                  No. 11-17-00130-CV
                                      __________

 FRANCIS GONZALES, INDIVIDUALLY AND AS SURVIVING
       WIDOW OF CARLOS GONZALES, Appellant
                                              V.
  BRAD WILLIAMS D/B/A BRAD WILLIAMS FARMS, Appellee


                       On Appeal from the 106th District Court
                               Dawson County, Texas
                         Trial Court Cause No. 15-05-19588


                        MEMORANDUM OPINION
       Appellant, Francis Gonzales, individually and as surviving widow of Carlos
Gonzales, 1 appeals the trial court’s order granting summary judgment in favor of
Appellee, Brad Williams d/b/a Brad Williams Farms. Appellant filed suit against
Appellee for negligence and gross negligence arising out of a single-vehicle accident


       1
        We will refer to Francis Gonzales as “Appellant,” and we will refer to Carlos Gonzales as
“Gonzales.”
that resulted in Gonzales’s death. In a single issue, Appellant contends that the trial
court improperly granted summary judgment in favor of Appellee. We affirm.
                                 Background Facts
      Carlos Gonzales was involved in a single-vehicle rollover accident involving
a 1987 Freightliner that occurred near O’Donnell. It is undisputed that, at the time
of the accident, Gonzales was acting within the course and scope of his employment
with Appellee. Gonzales died from his injuries while being transported to a hospital.
Appellant filed a wrongful death lawsuit against Appellee for negligence and gross
negligence.
      Appellee was a nonsubscriber under the Texas Workers’ Compensation Act.
In reliance upon a statutory defense in the Act, Appellee filed a traditional motion
for summary judgment alleging that Gonzales was intoxicated as a matter of law
because Gonzales had multiple controlled substances in his body at the time of the
accident. See TEX. LAB. CODE ANN. § 406.033(c)(2) (West 2015). Appellee
supported the allegation with a toxicology report produced by Dr. Patricia Rosen and
an autopsy report, which Appellee included as a part of his summary judgment
evidence. The autopsy report, which included a blood test, noted that Gonzales had
amphetamine, methamphetamine, and fentanyl in his blood at the time of the
accident. Dr. Rosen’s toxicology report concluded that, based on the level and ratio
of methamphetamine in Gonzales’s blood, Gonzales “had to have introduced
methamphetamines into his body prior to [the] accident and his death. The amounts
indicate voluntary introduction and the substance is a controlled substance[.]” Thus,
Appellee asserted that Appellant’s claims against Appellee were barred as a matter
of law because Gonzales was intoxicated.
      Appellant timely filed a response to Appellee’s motion for summary
judgment, alleging that a fact issue existed as to whether Gonzales was intoxicated.
Appellant’s argument was based solely on the affidavit of Texas Department of
                                          2
Public Safety Trooper Joshua Loftin, which detailed conversations Trooper Loftin
had with Appellee and another witness, Alejandro Esparza, sometime after the
accident. Trooper Loftin recalled that Appellee had said that, at breakfast on the
morning of the accident, Gonzales “appeared to be normal and there were no
indications that there was anything wrong” with his physical or mental abilities.
            The trial court initially heard Appellee’s motion for summary judgment on
January 2, 2016. Both Appellant and Appellee appeared, through their attorneys, at
this hearing.2 At the end of the hearing, the trial court expressed concern that the
only evidence offered to rebut Appellee’s argument that Gonzales was intoxicated
at the time of the accident was Trooper Loftin’s affidavit. However, the trial court
decided to “leave [the] motion for summary judgment open” to consider later after
the parties had additional time to develop evidence.
        Over a year later, the trial court set another hearing on Appellee’s motion for
summary judgment. The trial court set the hearing for February 22, 2017, in an order
entered on February 8, 2017. Appellant filed a motion to set aside the hearing,
arguing that, pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, she did
not receive twenty-one days’ notice before the hearing. Appellant also asserted that
the consideration of Appellee’s motion for summary judgment was premature
because additional discovery had not been completed since the first hearing.
        Appellee responded to Appellant’s motion, asserting that he had complied
with Rule 166a(c) by timely filing his motion for summary judgment and supporting
affidavits before the first hearing in January 2016. Appellee asserted that he was not


        2
         The Texas Supreme Court has held that a reporter’s record is neither necessary nor appropriate to
the purposes of a summary judgment hearing. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264,
292 n.141 (Tex. 2004). Irrespective of this directive, the parties have filed a reporter’s record for two
hearings held on Appellee’s motion for summary judgment. We have been aided by the reporter’s record
because it permits us to review the parties’ arguments concerning notice. The reporter’s record has also
provided us with the details of the trial court’s rulings at each hearing. We have not considered the
reporter’s record for determining the merits of Appellee’s motion for summary judgment.

                                                    3
required to provide twenty-one days’ notice for the February 2017 hearing because
Appellee was “not submitting a new motion for summary judgment” but, rather, was
“requesting a re-hearing on the same motion that was heard last year.”
      The trial court conducted the second summary judgment hearing on
February 22, 2017. Appellant did not present any additional summary judgment
evidence. After hearing the arguments of counsel, the trial court concluded that no
fact issue existed and that Gonzales was intoxicated at the time of the accident.
Accordingly, the trial court granted Appellee’s motion for summary judgment.
                                       Analysis
      In a single issue on appeal, Appellant asserts that the trial court erred in
granting Appellee’s traditional motion for summary judgment. Appellant presents
two arguments in support of her sole issue on appeal: (1) Appellant did not have
reasonable notice of the second summary judgment hearing and (2) there were
genuine issues of material fact that precluded summary judgment. We review a
summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). When the trial court’s order fails to specify the grounds for its summary
judgment, we will affirm if any of the theories are meritorious. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
      A party moving for traditional summary judgment bears the burden of proving
that there is no genuine issue of material fact as to at least one essential element of
the cause of action being asserted and that it is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254,
257 (Tex. 2017). If the movant initially establishes a right to summary judgment on
the issues expressly presented in the motion, then the burden shifts to the nonmovant
to present to the trial court any issues or evidence that would preclude summary
judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–
79 (Tex. 1979). When reviewing a traditional motion for summary judgment, we
                                          4
review the evidence in the light most favorable to the nonmovant, indulge every
reasonable inference in favor of the nonmovant, and resolve any doubts against the
motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
      Appellant argues that summary judgment was improper because she did not
receive “reasonable notice” and that the trial court erred “in not setting aside the
hearing due to Appellant’s specific objection on the lack of twenty-one (21) day
notice.” In her motion to set aside the summary judgment hearing, Appellant
asserted that she was “entitled to twenty-one (21) days’ notice before the hearing.”
The trial court disagreed with Appellant’s contention by noting that the hearing in
February 2017 was not another hearing but rather was a continuation of the prior
hearing.
       Except on leave of court, Rule 166a(c) requires a motion for summary
judgment to be filed and served at least twenty-one days before the time specified
for hearing. TEX. R. CIV. P. 166a(c). This rule requires at least twenty-one days’
notice of the hearing on a motion for summary judgment regardless of how far in
advance of the hearing the nonmovant receives the motion itself. Winn v. Martin
Homebuilders, Inc., 153 S.W.3d 553, 555 (Tex. App.—Amarillo 2004, pet. denied)
(citing Chadderdon v. Blaschke, 988 S.W.2d 387 (Tex. App.—Houston [1st Dist.]
1999, no pet.)). The Amarillo Court of Appeals addressed a similar situation in
Winn. The trial court in Winn conducted a subsequent hearing to reconsider its
previous ruling on a motion for summary judgment. Id. at 555–56. The court of
appeals determined that the second hearing did not require twenty-one days’ notice.
Id. at 556. The court based its holding in part on the principal that a ruling on a
motion for summary judgment is interlocutory and may be changed or modified
before final judgment is rendered without a further motion or prior notice to the
parties. Id.


                                         5
      We agree with the reasoning in Winn and find that it is applicable to the
circumstances in this case. There is no dispute that Appellant was provided with the
requisite twenty-one days’ notice of the first hearing on Appellee’s motion for
summary judgment. That hearing concluded without the trial court entering a ruling
on the motion. Instead, the trial court invited the parties to submit additional
summary judgment evidence as discovery occurred in the case. Over a year later,
the trial court again considered Appellee’s motion for summary judgment. As was
the case in Winn, the second hearing to reconsider the pending motion for summary
judgment did not require twenty-one days’ notice to the parties.
        Appellant also asserts that summary judgment was improper because there
were genuine issues of material fact as to whether Gonzales was legally intoxicated
at the time of the accident.        Appellant contends that (1) the affidavit of
Trooper Loftin, (2) a statement made in Dr. Rosen’s toxicology report, and
(3) Appellant’s answers to Appellee’s interrogatories created a genuine issue of fact
as to Appellee’s affirmative defense of intoxication. Conversely, Appellee asserts
that the trial court properly granted summary judgment in favor of Appellee because
Appellant failed to raise a fact issue to rebut his probative evidence of intoxication.
      Section 406.033 of the Labor Code, “which is part of the Workers’
Compensation Act, governs an employee’s personal-injury action against his or her
employer, when the employer is a nonsubscriber under the Act.” Kroger Co. v.
Keng, 23 S.W.3d 347, 349 (Tex. 2000); see LAB. §§ 401.001–419.007 (West 2015
& Supp. 2018). Appellee was not a subscriber under the Workers’ Compensation
Act. “To encourage employers to obtain workers’ compensation insurance, section
406.033 penalizes nonsubscribers by precluding them from asserting certain
common-law defenses in their employees’ personal-injury actions.” Kroger Co., 23
S.W.3d at 349; see LAB. § 406.033(a). However, “section 406.033(c) dictates the
defenses that implicate the employee’s conduct and on which an employer may
                                           6
rely.” Kroger Co., 23 S.W.3d at 351; see LAB. § 406.033(c). These are “by an act
of the employee intended to bring about the injury” or “while the employee was in
a state of intoxication.” LAB. § 406.033(c).
      The relevant definition of intoxication as provided in Section 401.013(a)(2)(B)
of the Labor Code is as follows:
             (2) not having the normal use of mental or physical faculties
      resulting from the voluntary introduction into the body of:
             ....
                   (B) a controlled substance or controlled substance
             analogue, as defined by Section 481.002, Health and
             Safety Code.
Id. § 401.013(a)(2)(B). A controlled substance “means a substance, including a
drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty
Group 1, 1-A, 2, 2-A, 3, or 4.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(5)
(West 2017). A controlled substance analogue means the following:
            (A) a substance with a chemical structure substantially similar to
      the chemical structure of a controlled substance in Schedule I or II or
      Penalty Group 1, 1-A, 2, or 2-A; or
            (B) a substance specifically designed to produce an effect
      substantially similar to, or greater than, the effect of a controlled
      substance in Schedule I or II or Penalty Group 1, 1-A, 2, or 2-A.

Id. § 481.002(6)(A)–(B). In cases involving controlled substances, “there is no level
or test defined by the statute that establishes per se if a person has lost use of his or
her physical and mental faculties.” Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-
CV, 2008 WL 598347, at *3 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.)
(mem. op.); see Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115 (Tex. App.—
Beaumont 2005, pet. denied). The statutory standard for controlled substances, such
as methamphetamine, is relatively subjective. See Am. Interstate Ins. Co., 172
S.W.3d at 115; LAB. § 401.013(a)(2).

                                           7
      If an employer “rebuts the presumption of sobriety with probative evidence of
intoxication, the burden shifts to the employee to prove that he was not intoxicated
at the time of injury.” Tex. Mut. Ins. Co., 2008 WL 598347, at *3. The Texas Labor
Code provides: “On the voluntary introduction into the body of any [controlled
substance], based on a blood test or urinalysis, it is a rebuttable presumption that a
person is intoxicated and does not have the normal use of mental or physical
faculties.” LAB. § 401.013(c).
      Appellee introduced summary judgment evidence that Gonzales was
intoxicated as defined by Section 401.013(a)(2)(B) of the Labor Code through the
autopsy report and Dr. Rosen’s toxicology report. The autopsy report indicated that
Gonzales had 37 ng/mL of amphetamine, 450 ng/mL of methamphetamine, and 0.34
ng/mL of fentanyl in his blood. Amphetamine is a Schedule III controlled substance.
21 U.S.C. § 812. Methamphetamine is listed in Schedules II and III, depending on
the form of the substance, as well as Penalty Group 1. Id.; HEALTH & SAFETY
§ 481.102(6)(West Supp. 2018). Fentanyl is a Schedule II controlled substance. 21
U.S.C. § 812.
      Dr. Rosen concluded that, based on the levels of amphetamine,
methamphetamine, and fentanyl in Gonzales’s blood, Gonzales “had to have
introduced methamphetamines into his body prior to [the] accident and his death.
The amounts indicate voluntary introduction.” The toxicology report noted that
methamphetamine and fentanyl are controlled substances and that amphetamine is
an analogue. Dr. Rosen further explained:
      Methamphetamine and amphetamine are known to cause impairment
      and difficulty driving a vehicle. Note that Fentanyl is a sedative pain
      killer and would also cause difficulty driving a vehicle in someone who
      does not have significant tolerance to this drug.
             ....


                                          8
             . . . [I]t is . . . likely that Mr. Gonzales had used
      Methamphetamine recently and that his impairment would have
      resulted in intense, distracting and overwhelming rapid flow of ideas
      with excitation, panic and potentially perceptual distortion,
      hallucinations and delusions. There is a significant decline in
      concentration and inability to divide attention following use of
      methamphetamine. Following use of this drug there are errors in
      judgement and perception.
Based on the autopsy and toxicology report, we conclude that Appellee, a
nonsubscriber under the Workers’ Compensation Act, rebutted the presumption of
sobriety    with    probative   evidence       of   Gonzales’s   intoxication   under
Section 401.013(a)(2) of the Labor Code. See Tex. Mut. Ins. Co., 2008 WL 59837,
at *3. Therefore, the burden shifted to Appellant to prove that Gonzales was not
intoxicated at the time of his injury. LAB. § 406.033(c).
      Appellant contends that the affidavit of Trooper Loftin created a genuine issue
of material fact as to whether Gonzales had the normal use of his mental or physical
faculties at the time of his injury. Trooper Loftin was one of the troopers who
investigated the accident. The affidavit notes that sometime after the accident,
Trooper Loftin spoke with Appellee and Alejandro Esparza, the passenger in the
vehicle that Gonzales was operating at the time of the accident. In the affidavit,
Trooper Loftin states that he recalled Appellee telling him that Appellee, Gonzales,
and Esparza “met early for breakfast” on the day of the accident. Trooper Loftin
notes in his affidavit:
      During the breakfast[,] Carlos Gonzales[] appeared to be happy and in
      good spirits. Physically and mentally[,] he appeared to be normal and
      there were no indications that there was anything wrong with Carlos
      Gonzales[’s] physical or mental abilities.
Finally, Trooper Loftin notes that Appellee and Esparza did not express concern
regarding Gonzales’s ability to operate the vehicle.


                                           9
      Trooper Loftin’s affidavit does not specify what time Gonzales, Appellee, and
Esparza allegedly ate breakfast together on the day of the accident. The affidavit
does not provide any indication of whether it was a matter of minutes or hours
between the breakfast—where Gonzales allegedly appeared to have the normal use
of his mental and physical faculties—and the accident, at which time he was
intoxicated. As such, Trooper Loftin’s affidavit does not raise a genuine issue of
material fact as to whether Gonzales was intoxicated at the time of the accident.
      Appellant also asserts that there is evidence that the accident was caused by
faulty breaks on the vehicle that Gonzales was operating—rather than intoxication.
Specifically, Appellant points to her answer to Appellee’s Interrogatory No. 20, in
which she asserted that the vehicle had faulty brakes and no inspection sticker.
However, “a party cannot rely on its own answer to an interrogatory as summary
judgment evidence.”     Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
Appellant also contends that the investigating officers concluded that the cause of
Gonzales’s accident was the vehicle’s faulty brakes. The Texas Peace Officer’s
Crash Report, attached to Trooper Loftin’s affidavit, included the “Investigator’s
Narrative Opinion of What Happened”:
      Unit #1 was traveling Southbound on FM 2370. The driver of Unit #1
      attempted to stop at the intersection, but the brakes failed on the truck
      causing him to disregard the stop sign at the intersection, take faulty
      evasion action to the left, and roll Right Over Top through a fence. Unit
      #1 came to rest upright in the South barrow ditch facing Northwest.

Appellant also notes that the same crash report is referenced by Dr. Rosen in her
toxicology report.
      However, causation is not relevant to the intoxication defense. See LAB.
§ 406.033(c)(2); Kroger Co., 23 S.W.3d at 350. We previously noted that “the
question is not whether intoxication caused [the decedent’s] injuries. Instead, the
question is simply whether [the decedent’s] injury occurred while he was in a state

                                         10
of intoxication.” Unique Staff Leasing, Ltd. v. Cates, 500 S.W.3d 587, 592 (Tex.
App.—Eastland, 2016, pet. denied). Although Unique Staff Leasing involved a
subscriber to the Workers’ Compensation Act, we note that the language in
Section 406.032 of the Labor Code, which provides the defenses available to
insurance carriers, is substantially similar to the language in Section 406.033, which
provides the defenses available to nonsubscribers. See LAB. §§ 406.032(1)(A),
.033(c)(2) (compare Section 406.032(1)(A), which states that “[a]n insurance carrier
is not liable for compensation if . . . the injury . . . occurred while the employee was
in a state of intoxication” to Section 406.033(c)(2), which states that “[t]he employer
may defend the action on the ground that the injury was caused . . . while the
employee was in a state of intoxication”); see also Unique Staff Leasing, 500 S.W.3d
at 592. Therefore, unrebutted proof of intoxication at the time of a work-related
injury is all that is required to bar a plaintiff’s claims arising out of such injury. See
LAB. § 406.033(c)(2); Kroger Co., 23 S.W.3d at 350 (“Section 406.033 further
identifies the defenses that implicate the employee’s conduct and on which a
nonsubscribing employer may rely: the employee intended to bring about the injury,
or the injury occurred while the employee was intoxicated.”). As such, Appellant’s
argument that she provided evidence that the vehicle’s faulty brakes caused the
accident is irrelevant to whether Gonzales was intoxicated at the time of the accident.
      We thus conclude that Appellant has not presented any evidence raising a
genuine issue of material fact as to whether Gonzales was intoxicated at the time of
his injury. See LAB. § 401.013(a), (c). Appellee established his right to summary
judgment on his affirmative defense of intoxication against all of Appellant’s claims
by providing probative evidence of Gonzales’s intoxication. Tex. Mut. Ins. Co.,
2008 WL 598347, at *3.          Appellant failed to rebut Appellee’s evidence of
intoxication and, as such, failed to present any evidence that would preclude
summary judgment. See id.; see also City of Houston v. Clear Creek Basin Auth.,
                                           11
589 S.W.2d 671, 678–79 (Tex. 1979). Accordingly, the trial court did not err in
granting Appellee’s motion for summary judgment. We overrule Appellant’s sole
issue on appeal.
                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE
June 28, 2019

Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.




        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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