      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-05-00742-CV



                                  Wendy K. Barrigan, Appellant

                                                   v.

                MHMR Services for the Concho Valley, Self Insured, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT
      NO. C-05-0161-C, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                               MEMORANDUM OPINION


               This is an appeal from a jury verdict in a workers’ compensation case to determine

the appropriate impairment rating governing appellant Wendy Barrigan’s claim for benefits. In six

issues Barrigan challenges the trial court’s denial of her plea to the jurisdiction, the trial court’s

instructions to the jury on burden of proof, the admissibility of expert testimony offered at trial, and

the legal and factual sufficiency of evidence. For the reasons discussed below, we affirm the

judgment of the trial court.


                        FACTS AND PROCEDURAL BACKGROUND

               Barrigan was employed by appellee MHMR Services of the Concho Valley

and suffered a back injury when she lost control of a buffer machine while working as part of a

cleaning crew. As a result of her injury, Barrigan underwent a two-level spinal fusion surgery. On

November 18, 2003, Dr. Mark Sanders, an orthopedic surgeon and designated doctor appointed by
the Texas Workers’ Compensation Commission,1 examined Barrigan and determined that she had

reached maximum medical improvement (MMI). Dr. Sanders also determined that Barrigan’s

impairment rating was 20%. Dr. Sanders based his assignment of Barrigan’s impairment rating on

two advisory opinions issued by the Commission—Commission Advisory Opinions 2003-10 and

2003-10b.2 In relevant part, Commission advisory 2003-10 provides:


       2.      Clarification of Rating for Spinal Fusion(s).

       For spinal fusion, the impairment rating is determined by the preoperative x-ray tests
       for “motion segment integrity” (page 102, 4th Edition of the Guides to the Evaluation
       of Permanent Impairment). If preoperative x-rays were not performed, the rating
       may be determined using the following criteria:


       a.      One level uncomplicated fusion meets the criteria for DRE Category II,[3]
               Structural Inclusions. This spinal abnormality is equivalent to a healed “less
               than 25% Compression Fracture of one vertebral body”.

       b.      Multilevel fusion meets the criteria for DRE Category IV, Structural
               Inclusions, as this multilevel fusion is equivalent to “multilevel spine
               segment structural compromise” per DRE IV.



       1
         Effective September 1, 2005, the legislature dissolved the Texas Workers’ Compensation
Commission and created the Division of Workers’ Compensation within the Texas Department of
Insurance. Act of June 1, 2005, 79th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607.
Because this change does not affect the outcome of this appeal, we refer to the agency as
the Commission.
       2
          In Texas Department of Insurance v. Lumbermens Mutual Casualty Company, No. 03-05-
00785-CV, 2006 Tex. App. LEXIS 10976 (Tex. App.—Austin Dec. 21, 2006, no pet. h.) (op. on
reh’g), this Court invalidated the Commission’s issuance and application of the advisory opinions
as an ultra vires act. We conclude, however, that the Court’s decision in Lumbermens does not affect
the outcome of this case.
       3
         The fourth edition of the Guides to the Evaluation of Permanent Impairment uses eight
diagnosis-related estimate (DRE) categories to classify a patient’s injury.

                                                 2
                                               ***

       4.      In the Texas workers’ compensation system, the injured employee’s
               impairment rating is based on the employee’s condition on the date of
               maximum medical improvement or the date of statutory maximum medical
               improvement, whichever is earlier.


Commission advisory 2003-10b is identical to 2003-10 with the following addition:


       c.      Health care providers may utilize the range-of-motion or other methodology
               if indicated (as with any condition in the 4th Edition Guides) that most
               accurately reflects the impairment rating evident for each injured worker.


               After receiving Dr. Sanders’s impairment rating, MHMR asked for clarification

based on Dr. Sanders’s use of the advisory opinions to assess Barrigan’s impairment rating. In

response, Dr. Sanders re-evaluated Barrigan on June 8, 2004, and performed range-of-motion

testing to determine the appropriate impairment rating. Range-of-motion testing is an alternative

method of testing, which can be used as allowed in the fourth edition of the Guides to the Evaluation

of Permanent Impairment,4 when there is a dispute as to the category of impairment to assign a

patient. The range-of-motion testing performed by Dr. Sanders showed Barrigan to have a 27%

impairment rating. Based on the range-of-motion testing, Dr. Sanders reaffirmed his original

impairment rating of 20%.




       4
         The fourth edition of the Guides to the Evaluation of Permanent Impairment is published
by the American Medical Association, and the Commission is required to use the Guides
when determining the existence and degree of an injured worker’s permanent impairment.
Tex. Lab. Code Ann. § 408.124 (West 2006); 28 Tex. Admin. Code § 130.1(c) (2006) (adopting the
fourth edition of the Guides for use in Texas).

                                                 3
               MHMR then requested that Barrigan submit to a “required medical examination” by

another physician to obtain an alternate impairment rating. See Tex. Lab. Code Ann. § 408.004(a)

(West 2006). As part of its RME request, MHMR asked the examining doctor to disregard the

Commission’s 2003 advisory opinions. The Commission appointed Dr. Paul Foxcroft to re-evaluate

Barrigan on behalf of MHMR.

               On August 5, 2004, Dr. Foxcroft examined Barrigan and determined that Barrigan’s

impairment rating was 10%. Dr. Foxcroft did not criticize Dr. Sanders’s evaluations of Barrigan and

independently verified the range-of-motion testing performed by Dr. Sanders. Dr. Foxcroft agreed

with Dr. Sanders that Barrigan had reached MMI in November 2003. Nevertheless, Dr. Foxcroft

dismissed the range-of-motion testing as unnecessary and opined that Dr. Sanders’s use of the

Commission advisory opinions was in direct contravention of the Guides, which Dr. Foxcroft

understood to be the law in Texas.

               In light of Dr. Foxcroft’s opinion, MHMR challenged Barrigan’s impairment rating

as assigned by Dr. Sanders. A benefit review conference was held on September 7, 2004, but did

not settle the dispute. On October 24, 2004, the Commission held a contested case hearing in the

San Angelo field office to determine Barrigan’s impairment rating. During the hearing, the parties

stipulated that Barrigan’s MMI date was November 18, 2003. After the hearing, the hearing officer

issued a decision and order finding that Barrigan’s impairment rating was 20%.

               MHMR appealed this decision to the Commission Appeals Panel.                    The

decision became final and appealable through operation of law on January 18, 2005. MHMR then




                                                4
filed suit for judicial review in Tom Green County under section 410.301 of the labor code. See

Tex. Lab. Code Ann. § 410.301 (West 2006).

                Before trial, Barrigan filed a plea to the jurisdiction and an evidentiary challenge to

the testimony of Dr. Foxcroft. The trial court held a pre-trial hearing on both the plea to the

jurisdiction and Barrigan’s evidentiary challenge. At the conclusion of the hearing, the trial court

denied the plea to the jurisdiction and denied Barrigan’s challenge to Dr. Foxcroft’s testimony. The

case was then submitted to trial before a jury. At the end of trial, the jury returned a verdict finding

that Barrigan’s impairment rating was 10%. The trial court entered judgment in accordance with the

jury verdict. It is from this judgment that Barrigan appeals.


                                            DISCUSSION

                Barrigan raises six issues on appeal. First, Barrigan argues that the trial court failed

to properly assign the burden of proof in its charge to the jury. Barrigan also challenges the legal and

factual sufficiency of the evidence to support the jury’s verdict. In addition, Barrigan complains that

the trial court erred in allowing the testimony of Dr. Foxcroft at trial. Finally, in two issues, Barrigan

contends that the trial court erred in denying her plea to the jurisdiction. Because we conclude that

Barrigan’s issues are without merit, we affirm the judgment of the trial court.


Burden of Proof

                In her first issue, Barrigan contends that the trial court failed to properly assign the

burden of proof in its charge to the jury following the close of evidence at trial. In relevant part, the

trial court charged the jury as follows:



                                                    5
       Your answers should be based on a preponderance of the evidence. Preponderance
       of the evidence means the greater weight and degree of the credible evidence
       introduced to you and admitted in this case.

                                                ***

       Question 1

       What is Wendy Barrigan’s impairment rating?

       20%:________________________________

       10%:________________________________


Barrigan contends that this question improperly placed the burden of proof upon her to establish by

a preponderance of the evidence that the proper impairment rating was 20%.

               At the beginning of trial, the trial court instructed the jury as follows:


       The Plaintiff, MHMR Services, has the burden of proof to prove by a preponderance
       of the evidence their case and what they feel the proper impairment rating should be,
       and because they are the Plaintiff, they get to go first in the evidence.


The record thus reflects that the trial court properly assigned the burden of proof to MHMR.

               The record also reflects that throughout the course of the trial, from voir dire to

closing argument, Barrigan’s counsel repeatedly emphasized to the jury that MHMR had the burden

to prove Barrigan’s impairment rating by a preponderance of the evidence. During voir dire,

Barrigan’s counsel explained that MHMR had the burden of proof and analogized this burden to a

golfer who has finished play and is in the clubhouse simply waiting for the other golfers to finish.

Barrigan’s counsel also referred to the scales of justice and told the venire panel that Barrigan did

not have to bring any evidence to prevail because MHMR had the burden of proof. Later, during

                                                  6
opening statements, Barrigan’s counsel again told the jury that MHMR had the burden of proof and

referred to his prior golf analogy, as well as the scales of justice and a teeter-totter. Then, during

closing arguments, Barrigan’s counsel stated to the jury, “[Y]ou will recall early on and throughout

this whole trial, we have been talking about the burden of proof.” Barrigan’s counsel again told the

jury that MHMR had the burden of proof and referred again to the see-saw and teeter-totter

analogies, as well as to the scales of justice.

                We review Barrigan’s claim of jury charge error under the harmless error rule. See

Tex. R. App. P. 44.1(a). Although we recognize that the trial court did not include an instruction

assigning the burden of proof to MHMR in its charge to the jury, we conclude that this omission, if

error, was harmless. See Tex. R. App. P. 44.1(a)(1). Given the trial court’s instructions at the

beginning of trial and counsel’s comments throughout the trial, Barrigan has not shown that the

omission of an instruction in the jury charge assigning the burden of proof to MHMR probably

caused the rendition of an improper judgment. Id. We overrule Barrigan’s first issue.


Legal and Factual Sufficiency

                In her second and third issues, Barrigan contends that the evidence was legally

and factually insufficient to support the jury verdict. In reviewing the legal sufficiency of the

evidence, we view the evidence in the light most favorable to the judgment, crediting favorable

evidence if a reasonable juror could, and disregarding contrary evidence unless a reasonable juror

could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The test for legal sufficiency

is whether the evidence would enable reasonable and fair-minded people to reach the judgment being

reviewed. Id. at 827-28. In reviewing the factual sufficiency of the evidence, we consider and weigh

                                                  7
all of the evidence in the record, and we may overturn a judgment only if it is so against the great

weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985)

(citing In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951)).

               At trial, MHMR submitted documentary evidence including the medical records of

Barrigan’s treating physician Dr. Robert LeGrand; the medical report of Dr. Sanders, the designated

doctor; and the medical records of Dr. Foxcroft, the physician appointed by the Commission to

evaluate Barrigan on behalf of MHMR. In addition to these records, Dr. Foxcroft testified at trial

that based on his experience, his review of Barrigan’s medical records, and his physical examination

of Barrigan, he determined her impairment rating to be 10%.

               Viewing the record as a whole, crediting favorable evidence if reasonable jurors

could, and disregarding contrary evidence unless reasonable jurors could not, we find that reasonable

and fair-minded people could have considered the medical records submitted by MHMR and

Dr. Foxcroft’s testimony and concluded that Barrigan’s impairment rating was 10%. We hold that

the evidence was legally sufficient to support the jury verdict. See City of Keller, 168 S.W.3d at 807,

827-28. Having reviewed the record, we likewise hold that the evidence was factually sufficient to

support the jury verdict. See Cain, 709 S.W.2d at 176.


Admission of Dr. Foxcroft’s Testimony

               In her fourth issue on appeal, Barrigan challenges the trial court’s admission of

Dr. Foxcroft’s testimony on the grounds that Dr. Foxcroft was not qualified to testify as an expert

witness in orthopedic surgery and that Dr. Foxcroft’s testimony was unreliable.

                                                  8
               Rule 702 of the Texas Rules of Evidence allows a witness qualified as an expert by

knowledge, skill, experience, training, or education to testify on scientific, technical, or other

specialized subjects if the testimony would assist the trier of fact in understanding the evidence or

determining a fact issue. Tex. R. Evid. 702. Whether an expert is qualified is, under rule 104(a),

a preliminary question to be decided by the trial court. Tex. R. Evid. 104(a). The party offering

expert testimony bears the burden of proving that the witness is qualified under rule 702. Gammill

v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). The offering party must prove

that the witness “possesses special knowledge as to the very matter on which he proposes to give an

opinion.” Id. (internal quotes and citation omitted). We review the trial court’s acceptance of an

expert witness’s qualifications for abuse of discretion. Id. at 718-19.

               Barrigan argues that Dr. Foxcroft was not qualified to render an opinion on her

impairment rating because he was not board certified in orthopedic surgery by the American Board

of Medical Examiners and his orthopedic training is only recognized in Canada. Barrigan also

asserts that Dr. Foxcroft is unqualified because he has no privileges to perform surgery at any

hospital in the United States. The record reflects that Dr. Foxcroft earned his medical degree in 1965

from the University of Cape Town in South Africa. Dr. Foxcroft received orthopedic training at the

University of Canada and completed his orthopedic residency in Canada in 1983. Dr. Foxcroft has

been licensed to practice medicine in Texas since 1983 and has practiced orthopedic surgery from

1983 to 2000 in Brownwood, Texas. Dr. Foxcroft is a member of the Texas Orthopedic Association

and the Academy of Disability Evaluating Physicians. In addition, Dr. Foxcroft has been selected,

trained, and approved to give opinions on maximum medical improvement and impairment ratings



                                                  9
as a designated doctor by the Commission since 1995.             During his appointment with the

Commission, Dr. Foxcroft has conducted over 1,000 examinations as a designated doctor.

               Based on this evidence, we conclude the trial court did not abuse its discretion in

accepting the qualifications of Dr. Foxcroft. See id. Barrigan’s primary complaint regarding

Dr. Foxcroft’s qualifications is that he is not board certified in the United States. However, Barrigan

cites no authority, and we have found none, to support the proposition that a doctor certified in a

foreign country is not qualified to provide expert testimony under rule 702. The rule requires only

that a witness be “qualified as an expert by knowledge, skill, experience, training, or education.”

Tex. R. Evid. 702. It does not require that a witness receive or acquire this “knowledge, skill,

experience, training, or education” in a particular country or from a particular institution. MHMR

has demonstrated that Dr. Foxcroft is qualified to opine on Barrigan’s impairment rating based on

his many years of orthopedic education, training, and experience, as well as his training and

experience as a designated doctor, appointed and approved by the Commission, who has performed

over 1,000 patient evaluations.

               As part of her challenge to Dr. Foxcroft’s testimony, Barrigan also contends that

Dr. Foxcroft’s opinions were not reliable because Dr. Foxcroft did not use the advisories published

by the Commission to reach his conclusions regarding Barrigan’s impairment rating and because he

disregarded the range-of-motion testing performed by Dr. Sanders. We disagree.

               Rule 702 requires that expert testimony be both relevant and reliable before it may

be admitted by the trial court. Id.; Gammill, 972 S.W.2d at 726. The reliability requirement of

rule 702 focuses on the principles, research, and methodology underlying an expert’s conclusions.



                                                  10
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Under this

requirement, expert testimony is unreliable if it is no more than “subjective belief or unsupported

speculation.” Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)). Expert

testimony is also unreliable if there is too great an analytical gap between the data relied upon by the

expert and the opinion offered. Gammill, 972 S.W.2d at 727. In applying this reliability standard,

the trial court does not decide whether the expert’s conclusions are correct; rather, the trial court

determines only whether the analysis used to reach those conclusions is reliable. Id. at 728. We

review the trial court’s reliability determination for abuse of discretion. Guadalupe-Blanco River

Auth. v. Kraft, 77 S.W.3d 805, 806 (Tex. 2002).

               Dr. Foxcroft examined Barrigan and applied the fourth edition of the Guides to

determine that Barrigan’s impairment rating was 10%. Dr. Foxcroft testified that the impairment

rating was based on his physical examination of Barrigan and the history related to him by Barrigan.

The primary methodology for determining impairment ratings is the injury model set forth in the

fourth edition of the Guides. Under this model, a doctor uses objectively verifiable evidence to place

patients into one of eight diagnosis-related estimate (DRE) categories. The assigned DRE category

then determines the patient’s impairment rating. Dr. Foxcroft testified that he did not use the

Commission advisories in his determination of Barrigan’s impairment rating because the advisories

are discretionary. That is, the Commission does not require doctors to use the advisories when

determining an impairment rating. When asked why he chose not to use the advisories, Dr. Foxcroft

testified that he understood the law to require him to follow the Guides, but that use of the

Commission advisories was discretionary. Dr. Foxcroft’s testimony is consistent with the labor code



                                                  11
which expressly requires the use of the Guides when determining an impairment rating for the

purpose of awarding impairment benefits.5 Tex. Lab. Code Ann. § 408.124 (West 2006).

                Barrigan also complains that Dr. Foxcroft’s disregard of the range-of-motion testing

performed by Dr. Sanders is further evidence that Dr. Foxcroft’s testimony is unreliable. We find

this complaint to be without merit. According to the fourth edition of the Guides, a physician should

only resort to range-of-motion testing as a differentiator when it is not otherwise possible to

determine the patient’s appropriate DRE category according to the injury model.6 Based upon his

physical examination of Barrigan, Dr. Foxcroft testified that he was able to determine Barrigan’s

impairment rating without the need of a differentiator such as range-of-motion testing. Although

Dr. Foxcroft agreed that Dr. Sanders conducted the range-of-motion testing properly and he did

not dispute the results of Dr. Sanders’s range-of-motion testing, Dr. Foxcroft testified that it was

simply unnecessary. He explained that it was not necessary to perform the range-of-motion

testing as a differentiator because he had no problem assessing the appropriate DRE category for

Barrigan without it.

                On this record, we cannot say that the trial court abused its discretion in admitting

Dr. Foxcroft’s testimony. Barrigan has not shown that the principles or analysis employed by



        5
          Dr. Foxcroft’s decision not to use the Commission’s advisory opinions is likewise
consistent with this Court’s recent opinion in Texas Department of Insurance v. Lumbermens
Mutual Casualty Company, 2006 Tex. App. LEXIS 10976, at *17, which invalidated the
Commission’s issuance and application of the advisory opinions. Accordingly, we express no
opinion on the reliability of Dr. Foxcroft’s testimony in the event he had chosen to use and apply the
advisory opinions.
        6
          Dr. Foxcroft testified that range-of-motion testing is one of several differentiators specified
in the fourth edition of the Guides.

                                                   12
Dr. Foxcroft to determine Barrigan’s impairment rating were unreliable. See Gammill, 927 S.W.2d

at 728. The crux of Barrigan’s complaints is that Dr. Foxcroft reached the wrong conclusion, but

the trial court is not called upon to decide whether the expert’s conclusions are correct when it

evaluates reliability under rule 702. Id. We overrule Barrigan’s fourth issue.


Plea to the Jurisdiction

               In her fifth and sixth issues, Barrigan argues that the trial court improperly denied her

plea to the jurisdiction because MHMR’s petition for judicial review was untimely and

MHMR failed to comply with labor code section 408.123(e)—also known as the “90-day” rule.

Tex. Lab. Code Ann. § 408.123(e) (West 2006). We reject Barrigan’s arguments.

               The Texas Labor Code sets up a hybrid method of seeking judicial review of an

appeals panel decision. To seek judicial review on issues regarding compensability or eligibility for

benefits, a party must file its petition for judicial review not later than the “40th day after the date

on which the decision of the appeals panel was filed with the [Commission].” Tex. Lab. Code Ann.

§ 410.252 (providing 40-day deadline for judicial review), .301(a) (judicial review of decision

regarding compensability or eligibility for benefits shall be conducted as provided in this subchapter)

(West 2006). For judicial review of all other issues, the labor code specifies that review will be

conducted as provided in subchapter G, chapter 2001, of the government code. Id. § 410.255(a)

(West 2006). While review under section 410.301 of the labor code requires a party to file its

petition for review within 40 days, the government code gives a party only 30 days in which to file

a petition for judicial review. Tex. Gov’t Code Ann. § 2001.176(a) (West 2000).




                                                  13
               Based on this distinction, Barrigan argues that MHMR’s petition did not properly

invoke the trial court’s jurisdiction because MHMR failed to file suit against the Commission within

30 days. Barrigan contends that MHMR was required to file suit within 30 days because MHMR

does not simply challenge Barrigan’s impairment rating as allowed under section 410.301 of the

labor code, but instead, challenges the Commission’s rulemaking authority to promulgate the

advisories in the first instance. Thus, Barrigan maintains that MHMR was required to file its petition

for judicial review within 30, not 40, days.

               The sole claim raised in MHMR’s petition asserts that MHMR was aggrieved by the

appeals panel determination that Barrigan’s impairment rating was 20%. There is no mention of the

Commission’s rulemaking authority, the Commission’s rules, or the advisories. The Texas Supreme

Court has recognized that a challenge to a patient’s impairment rating is a challenge to

compensability or eligibility for benefits. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253

(Tex. 1999). We conclude that MHMR’s petition for judicial review properly asserted a challenge

to Barrigan’s impairment rating, thereby challenging compensability and eligibility for benefits, and

was timely filed within 40 days after the appeals panel decision was filed with the Commission. See

Tex. Lab. Code Ann. §§ 410.252, .301. We overrule Barrigan’s fifth issue.

               In her sixth issue on appeal, Barrigan argues that the trial court improperly denied her

plea to the jurisdiction because MHMR failed to comply with section 408.123(e) of the labor code.

See id. § 408.123(e). Known as the “90-day” rule, section 408.123(e) provides:


       Except as otherwise provided by this section, an employee’s first valid certification
       of maximum medical improvement and first valid assignment of an impairment
       rating is final if the certification or assignment is not disputed before the 91st day

                                                 14
        after the date written notification of the certification or assignment is provided to the
        employee and the carrier by verifiable means.


Id. Because Barrigan did not raise this issue before the appeals panel, we conclude that it has been

waived. Section 410.302(b) of the labor code provides that judicial review of an appeals panel

decision is limited to issues decided by the appeals panel. Id. § 410.302(b). Texas courts

have consistently held that issues not raised before an appeals panel may not be reviewed at trial in

district court. See Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65 (Tex. App.—San Antonio 2003,

pet. denied); Marts v. Transportation Ins. Co., 111 S.W.3d 699, 706 (Tex. App.—Fort Worth 2003,

pet. denied); St. Paul Ins. Co. v. Mefford, 994 S.W.2d 715, 720 (Tex. App.—Dallas 1999,

pet. denied); ESIS, Inc. v. Johnson, 908 S.W.2d 554, 562 (Tex. App.—Fort Worth 1995,

writ denied). Although Barrigan does not dispute that she failed to raise the 90-day rule before the

appeals panel, she argues instead that compliance with the 90-day rule is jurisdictional and therefore

may be raised at any time. This argument is contrary to the plain language of section 410.302.

Because Barrigan failed to raise the 90-day rule before the appeals panel, this issue has been waived,

see Hefley, 131 S.W.3d at 65; Marts, 111 S.W.3d at 706; St. Paul Ins. Co., 994 S.W.2d at 720; ESIS,

Inc., 908 S.W.2d at 562, and we conclude the trial court properly denied Barrigan’s plea to the

jurisdiction. We overrule Barrigan’s sixth issue.


                                           CONCLUSION

                Having overruled Barrigan’s issues on appeal, we affirm the judgment of the

trial court.




                                                   15
                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: January 4, 2007




                                             16
