                                                                               ACCEPTED
                                                                          07-14-00405-CV
                                                              SEVENTH COURT OF APPEALS
                                                                       AMARILLO, TEXAS
                                                                     2/18/2015 4:43:44 PM
                                                                        Vivian Long, Clerk


                APPELLATE NO. 07-14-00405-CV

                IN THE COURT OF APPEALS          FILED IN
                                          7th COURT OF APPEALS
           FOR THE SEVENTH JUDICIAL DISTRICTAMARILLO, TEXAS
                    AMARILLO, TEXAS       2/18/2015 4:43:44 PM
                                                       VIVIAN LONG
                                                          CLERK

CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
                 POLICE DEPARTMENT
                                                 Appellants,
                          v.

                      KOREY FERGUSON

                                                             Appellee.


                  Appeal From No. A38274-1112
                 th
               64 District Court, Hale County, Texas
               The Honorable Robert W. Kinkaid, Jr.


                BRIEF OF APPELLANTS
CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
                 POLICE DEPARTMENT


  Sprouse Shrader Smith PLLC
  Mark D. White, Texas State Bar No. 21317900
  mark.white@sprouselaw.com

  Malerie T. Anderson, Texas State Bar No. 24087102
  malerie.anderson@sprouselaw.com
  701 S. Taylor, Suite 500
  Amarillo, Texas 79101
  Phone: (806) 468-3300
  Fax: (806) 373-3454

  and

  City of Plainview
  Leslie Spear, Texas State Bar No. 21202700
  lpearce@ci.plainview.tx.us
  901 Broadway Street
  Plainview, Texas 79072
  Phone: (806) 296-1127
  Fax: (806) 296-1125


              ATTORNEYS FOR APPELLANT
CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
                 POLICE DEPARTMENT

                         February 18, 2015
                      Oral Argument Requested




                                 ii
                       APPELLATE NO. 07-14-00405-CV

                      IN THE COURT OF APPEALS
                 FOR THE SEVENTH JUDICIAL DISTRICT
                          AMARILLO, TEXAS


   CITY OF PLAINVIEW TEXAS, WILLIAM MULL, IN HIS OFFICIAL
   CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
   POLICE DEPARTMENT, AND KEN COUGHLIN, IN HIS OFFICIAL
   CAPACITY AS CHIEF OF POLICE OF THE CITY OF PLAINVIEW
                    POLICE DEPARTMENT
                                                    Appellants,
                             v.

                              KOREY FERGUSON

                                                                          Appellee.



                      LIST OF PARTIES AND COUNSEL
      Pursuant to TEX. R. APP. P. 38.1(A), Appellants, the City of Plainview Texas,
William Mull, In His Official Capacity as Chief of Police of the City of Plainview
Police Department, and Ken Coughlin, In His Official Capacity as Chief of Police
of the City of Plainview Police Department, certify that the following is a complete
list of the names and addresses of the parties and their counsel:
                          Parties                          Counsel
  Appellants    City of Plainview Texas,         SPROUSE SHRADER SMITH PLLC
                William Mull, In His             701 S. Taylor, Suite 500
                Official Capacity as             P.O. Box 15008
                Chief of Police of the           Amarillo, Texas 79105-5008
                City of Plainview Police         Mark D. White, Esq.
                Department, and Ken              Malerie T. Anderson, Esq.
                Coughlin, In His                  and
                Official Capacity as             City of Plainview

                                           iii
               Chief of Police of the          901 Broadway Street
               City of Plainview Police        Plainview, Texas 79072
               Department                      Leslie Spear, Esq.
   Appellee    Korey Ferguson                  Texas Municipal Police Association
                                               6200 La Calma Drive, Suite 200
                                               Austin, Texas 78752
                                               Randall C. Doubrava, Esq.
                                                and
                                               DeShazo & Nesbitt, L.L.P.
                                               809 West Avenue
                                               Austin, Texas 78701
                                               Rachel Noffke, Esq.
                                                and
                                               Law Office of Lance F. Wyatt, PLLC
                                               141 Countryside Court, Suite 150
                                               Southlake, Texas 76092
                                               Lance F. Wyatt, Esq.

                    REQUEST FOR ORAL ARGUMENT
      Pursuant to TEX. R. APP. P. 39.7, Appellants, the City of Plainview Texas,

William Mull, In His Official Capacity as Chief of Police of the City of Plainview

Police Department, and Ken Coughlin, In His Official Capacity as Chief of Police

of the City of Plainview Police Department request permission to make oral

arguments upon submission of this cause to the Court of Appeals.




                                          iv
                                      TABLE OF CONTENTS


                                                                                                             Page

LIST OF PARTIES AND COUNSEL..................................................................... iii

REQUEST FOR ORAL ARGUMENT ................................................................... iv

INDEX OF AUTHORITIES................................................................................... vii

STATEMENT OF THE CASE ................................................................................11

ISSUES PRESENTED.............................................................................................13

        1. The Trial Court erred in determining reinstatement is mandatory for
           noncompliance with Texas Government Code section 614.023. .............13

        2. The Trial Court erred in ordering reinstatement because the
           evidence adduced at trial is insufficient to support reinstatement. ..........13

        3. The Trial Court abused its discretion by ordering the City to
           reinstate Korey Ferguson to his former position at the rate of pay at
           the time of dismissal. ................................................................................13

STATEMENT OF FACTS ......................................................................................14
SUMMARY OF THE ARGUMENT ......................................................................22

BRIEF OF THE ARGUMENT ................................................................................24

     I. STANDARD OF REVIEW ..........................................................................24
     II. THE TRIAL COURT ERRED IN DETERMINING
         REINSTATEMENT WAS MANDATORY FOR NONCOMPLIANCE
         OF TEXAS GOVERNMENT CODE SECTION 614.023. .........................26

     III. THE TRIAL COURT ERRED IN ORDERING REINSTATEMENT
          THE BECAUSE EVIDENCE ADDUCED AT TRIAL IS
          INSUFFICIENT TO SUPPORT REINSTATEMENT. ...............................30

                 A. Legal Insufficiency ...................................................................... 30



                                                        v
                  B. Factual Insufficiency ................................................................... 34

     IV. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
        APPELLANT TO REINSTATE APPELLEE TO HIS FORMER
        POSITION AT THE RATE OF PAY AT THE TIME OF DISMISSAL. ...36

                  A. The Trial Court’s Order to Reinstate Appellant Is Against Public
                     Policy .......................................................................................... 36

     V. THE REMEDY OF REINSTATEMENT DOES NOT FIT THE
        CIRCUMSTANCES PRESENTED .............................................................40

CONCLUSION AND PRAYER .............................................................................45
CERTIFICATE OF SERVICE ................................................................................47

CERTIFICATE OF COMPLIANCE .......................................................................48
APPENDIX ..............................................................................................................49




                                                           vi
                                   INDEX OF AUTHORITIES

                                                                                                         Page
Cases
Baca v. City of Dallas,
      796 S.W.2d 497 (Tex. App.—Dallas 1990) ..................................................44
Barber v. Colorado ISD,
     901 S.W.2d 447 (Tex. 1995) .........................................................................24
Bowie Mem’l Hosp. v. Wright,
     79 S.W.2d 48 (Tex. 2002) ...................................................................... 26, 36

Bracey v. City of Killeen,
     417 S.W.3d at 110 .................................................................................. 29, 42
Cain v. Bain,
      709 S.W.2d 175 (Tex. 1986) .................................................................. 25, 34
City of DeSoto v. White,
       288 S.W.3d 389 (Tex. 2009) ...................................................... 28, 29, 42, 43
City of Keller v. Wilson,
       168 S.W.3d 802 (Tex. 2005) ............................................................ 25, 31, 33

City of Pasadena v. Smith,
       292 S.W.3d 14 (Tex. 2009) .................................................................... 42, 43
Cleveland Brd. of Educ.v. Loudermill,
      470 U.S. 532, 538 (1985) ..............................................................................44
Croucher v. Croucher,
     660 S.W.2d 55 (Tex. 1983) .................................................................... 25, 34

El Paso Nat. Gas Co. v. Minco Oil & Gas, Inc.,
      8 S.W.3d 309 (Tex. 1999) .............................................................................24
ERI Consulting Engineers, Inc. v. Swinnea,
     318 S.W.3d 867 (Tex. 2010) .........................................................................41

Garza v. Alviar,
     395 S.W.2d 821 (Tex. 1965) .................................................................. 26, 35


                                                      vii
Gooch v. Am. Sling Co.,
     902 S.W.2d 181(Tex. App.—Fort Worth 1995, no writ) ....................... 26, 34

Guthery v. Taylor,
     112 S.W.3d 715 (Tex. App.—Houston [14th Dist.] 2003) .................... 27, 28

Helena Chem. Co. v. Wilkins,
     47 S.W.3d 486 (Tex. 2001) ...........................................................................28

Hinds v. Slagel,
      Civ. A. No. 3:00-cv-2372-D, 2001 WL 548906, *1 (N.D. Tex. May 18,
      2001) ..............................................................................................................19
In re Doe,
       19 S.W.3d 249 (Tex. 2000) ...........................................................................26
In re Southwest Bell Telephone Co., L.P.,
       226 S.W.3d 400 (Tex. 2007) .........................................................................39
Kentucky v. Graham,
     473 U.S. 159 (1985).......................................................................................19

Marathon Corp. v. Pitzner,
     106 S.W.3d 724 (Tex. 2003) ............................................................ 25, 31, 33

Maritime Overseas Corp. v. Ellis,
      971 S.W.2d 402 (Tex. 1998) .................................................................. 26, 35
Mayhew v. Town of Sunnyvale,
     964 S.W.2d 922 (Tex. 1998) .........................................................................24

McAshan v. Cavitt,
     149 Tex 147 ...................................................................................................27

McMillin v. State Farm Lloyds,
     180 S.W.3d 183 (Tex. App.—Austin 2005, pet. denied) ....................... 26, 34

Nelson v. City of Dallas,
      278 S.W.3d 90 (Tex. App.—Dallas 2009) ....................................... 39, 40, 44
Playboy Enters. v. Editorial Caballero, S.A. de C.V.,
     202 S.W.3d 250 (Tex. App.—Corpus Christi 2006, pet. denied) .......... 25, 34



                                                           viii
Quick v. City of Austin, 7 S.W.3d
      109 (Tex. 1998) ...................................................................................... 24, 31

Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co.,
     766 S.W.2d 264 (Tex. App.—Amarillo 1988, writ denied)............. 25, 34, 35

Raw Hide Oil & Gas, Inc.,
     766 S.W.2d at 275 .........................................................................................30

Ray v. Farmers State Bank of Hart,
      576 S.W.2d 607 n.1 (Tex. 1979) ...................................................................27

Serv. Corp. v. Guerra,
      348 S.W.3d 221 (Tex. 2011) ............................................................ 25, 31, 33

Turner v. Perry,
     278 S.W.3d 806 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) .......28
Walker v. Packer,
     827 S.W.2d 833 (Tex. 1992) .................................................................. 26, 36

Statutes
Tex. Civ. Prac. & Rem. Code § 51.012 ...................................................................11
Tex. Const., art. XI at § 5 .................................................................................. 37, 44

TEX. GOVT. CODE § 614.021 ............................................................................. 11, 16
Tex. Govt. Code § 614.022 ............................................................................... 11, 16

Tex. Govt. Code § 614.023 ................................................................... 11, 16, 31, 40

TEX. LOC. GOVT. CODE § 51.071 ...................................................................... 37, 44

Other Authorities
H.B. 639,
      79th Leg. Sess. (Tex. 2005), HOUSE RESEARCH ORG. BILL ANALYSIS .........28
Powers of the City;
     Tex. Const., art. XI, § 5 (Vernon’s Supp. 2014) ...........................................36

Texas Local Government Code,
      Chapter 143 (Vernon’s 2008) .......................................................................36


                                                         ix
                        STATEMENT OF THE CASE
      This is an appeal from the Trial Court’s Final Judgment signed August

20, 2014, in favor of Plaintiff Korey Ferguson, pursuant to Tex. Civ. Prac. &

Rem. Code § 51.012. The underlying suit was brought by Korey Ferguson

(“Appellee”), against the City of Plainview Texas, William Mull, In His

Official Capacity as Chief of Police of the City of Plainview Police Department,

and Ken Coughlin, In His Official Capacity as Chief of Police of the City of

Plainview Police Department (the “City” or “Appellants”) based on a violation

of Tex. Govt. Code § 614.021, 614.022, and 614.023. C.R. 14–20; 234–44.

      After a bench trial on the merits, the Honorable Judge Kinkaid issued a

letter decision holding that Appellants did not comply with the mandates as

outlined in Texas Government Code, Section 614.023(a) and (b) and rendered

judgment in favor of Korey Ferguson and ordered Appellants to reinstate Korey

Ferguson to his position as a police officer with the City of Plainview, Texas, at

the rate of pay at the time of dismissal. C.R. 300–01, 331–33. Appellants

requested Findings of Fact and Conclusions of Law. C.R. 335–37. Appellants

also filed a Motion to Modify the Judgment as to reinstatement and a Motion

for New Trial. C.R. 338–41; 342–44. The Court ultimately adopted Korey

Ferguson’s proposed Findings of Fact and Conclusions of Law. C.R. 345–46;

350, 355–63.



                                       11
      The City of Plainview Texas, William Mull, In His Official Capacity as

Chief of Police of the City of Plainview Police Department, and Ken Coughlin,

In His Official Capacity as Chief of Police of the City of Plainview Police

Department, timely filed their notice of appeal. C.R. 370–72.




                                      12
                           ISSUES PRESENTED
1.   The Trial Court erred in determining reinstatement is mandatory for

     noncompliance with Texas Government Code section 614.023.

2.   The Trial Court erred in ordering reinstatement because the evidence

     adduced at trial is insufficient to support reinstatement.

3.   The Trial Court abused its discretion by ordering the City to reinstate

     Korey Ferguson to his former position at the rate of pay at the time of

     dismissal.




                                       13
                              STATEMENT OF FACTS
       This case arises out of the City’s failure to provide Amber Washington’s

signed complaint against Korey Ferguson to him within a reasonable time after

she filed the complaint and before disciplinary action was taken; thus, not

complying with comply Texas Government Code Sections 614.023 (a) and (b).

C.R. 355–63. Ferguson claimed he was terminated from the City of Plainview,

Texas, Police Department based on Amber Washington’s written complaint,

that he did not receive a physical copy of the signed complaint within a

reasonable time, and was terminated before he was provided this piece of paper.

C.R. 14–20; 234–44. For the City’s noncompliance with the statute, Korey

Ferguson requested the Trial Court issue a writ of mandamus and injunction

against the City for disciplining Korey Ferguson for the Amber Washington

complaint in the future and attorney’s fees. 1 C.R. 355–366, at 360 ¶¶ 37, 38.

Korey Ferguson also requested that the Trial Court reinstate him to his previous

position as police officer with the same seniority level and rate of pay at the

time the City of Plainview, Texas, Police Department terminated his

employment. R.R. Vol. 5, p. 70, l. 24–p. 71, l. 5; C.R. 234–44.

       On February 17, 2011, Korey Ferguson was a peace officer on duty for

the City of Plainview, Texas Police Department and was called to the Plainview

1
 Of all of the relief Ferguson requested and the Trial Court ordered, in this appeal the City
only challenges the order to reinstate Ferguson as a City of Plainview, Texas, police officer.

                                              14
Police Department lobby to address Amber Washington’s domestic concerns.

R.R. Vol. 5, p. 17, l. 19–p. 18, l. 10. A confrontation erupted between Korey

Ferguson and Amber Washington. R.R. Vol. 5, p. 20, l. 9–p. 2, ln. 8. The

incident escalated and Amber Washington was “throw[n] . . . onto the floor and

. . . charg[ed] . . . with disorderly conduct when there was no one even in the

building.” R.R. Vol. 5, p. 78, l. 13–p. 79, l. 12.      Korey Ferguson clearly

violated Amber Washington’s rights when he used excessive force and put

Amber Washington in jail. R.R. Vol. 5, p. 19, l. 2–5; p. 60, l. 23–p. 61, l. 5

(Ferguson acknowledged that other people could view his conduct on the video

recording that night and conclude it was improper.); R.R. Vol. 5, p. 78, l. 13–p.

79, l. 12. The following day, Amber Washington made a verbal complaint to

the Plainview Police Department against Korey Ferguson; the complaint was

later documented in writing as a formal complaint. R.R. Vol. 3, p. 103, l. 15–p.

104, l. 17, l. 21–24; R.R. Vol. 5, p. 65, l. 24–p. 66, l. 2; C.R. 355–363, at 356

¶ 7.

        I.   As part of the investigation, on February 23, 2011, the City of

             Plainview Police Department asked Korey Ferguson to provide a

             written memo about the Amber Washington arrest. R.R. Vol. 5, p.

             24, l. 8–p. 25, l. 11; C.R. 355–63, 356 ¶ 10. At this time, the City

             had not told Korey Ferguson he was under investigation based on a



                                       15
               complaint filed by Amber Washington. 2 R.R. Vol. 3, p. 35, l. 25–

               p. 36, l. 3; Vol. 5, p. 25, l. 16–p. 26, l. 8; C.R. 355–363, at 356 ¶ 9.

               The City of Plainview Police Department’s investigation

               determined there was sufficient evidence to support an allegation

               of misconduct. R.R. Vol. 5, p. 28, l. 1–p. 29, l. 23; C.R. 300–01;

               355–63, at 356, ¶ 10.

       On March 9, 2011, Chief of Police William Mull terminated Korey

Ferguson from the City of Plainview, Texas, Police Department. C.R. 355–363,

at 356 ¶ 11. The Trial Court’s Findings of Fact state that Korey Ferguson did

not actually receive a copy of Amber Washington’s written complaint prior to

his termination from the Police Department.3 R.R. Vol. 5, p. 56, l. 7–10; C.R.

300–01, C.R. 355–363, at 357 ¶ 15; TEX. GOVT. CODE § 614.023(a) and (b).

Although Ferguson did not receive the actual piece of paper within a reasonable

time or before he was terminated, only days after Amber Washington filed her

complaint the City asked Ferguson to prepare a memo about the Amber

Washington incident. R.R. Vol. 5, p. 24, l. 18–p. 25, l. 11.                  In fact, Korey

Ferguson testified that Chief Mull “reached over the desk and handed [the

complaint] to [him] and [he] read it and started kind of skimming through it”
2
  However, the Texas Government Code does not require that the officer be informed that he
is “under investigation,” only that the City provide the officer a copy of the written complaint
before taking disciplinary action. TEX. GOVT. CODE § 614.022 –.023.
3
  Notably, the City does not challenge this finding on appeal. Rather, the City’s finding is
limited to the improper remedy of reinstatement under these circumstances.

                                              16
but he gave the document back to Chief Mull and was not provided a copy for

his attorney. R.R. Vol. 5, p. 31, l. 12–p. 32, l. 5. It is clear that Ferguson was

aware that Amber Washington filed a written complaint about his excessive

force taking her down to the floor on February 17, 2011, and had ample

opportunity to consult a lawyer about the incident. R.R. Vol. 5, p. 31, l. 12–p. 32,

l. 5; p. 65, l. 10–p. 66, l. 3.

       Pursuant to the City of Plainview, Texas’ personnel procedures, Korey

Ferguson appealed his termination to the city grievance committee and had a

panel chosen in accordance with the City personnel procedures 4 to review the

Amber Washington incident, including the video from the lobby that night.

R.R. Vol. 5, p. 63, l. 8–p. 64, l. 12. The hearing before the committee at which

Korey Ferguson was represented by legal counsel and given the opportunity to

argue and cross-examine witnesses, including Amber Washington herself lasted

“all day”. R.R. Vol. 5, p. 6, l. 3–14; l. 24–p. 10, l. 8; p. 11, l. 12–16, 22–p. 12, l.

1; p. 63, l. 8–p. 64, l. 12; p. 67, l. 2–7. The committee unanimously upheld the

decision to terminate Korey Ferguson. Id. Korey Ferguson appealed to the

City Manager who reviewed the circumstances and agreed with the committee’s



4
 See City of Plainview Personnel Policy at Part X, Section 10.5.D. Employee Grievance
Committee detailing the procedure for reviewing employee discipline and indicating the
committee is comprised of two director and supervisors specifically trained to handle
disciplinary matters.

                                            17
decision to terminate his employment. R.R. Vol. 5, p. 11, l. 12–16, 22–p. 12, l.

1; p. 67, l. 2–7.

       Aside from the overwhelming evidence that Korey Ferguson’s

inappropriate conduct amounted to excessive force against Amber Washington

and warranted his termination as a police officer, Korey Ferguson does not

believe he did one single thing wrong. C.R. 355–63, 356 ¶ 10; R.R. Vol. 5, p.

60, l. 12–22.       Korey Ferguson refuses to take responsibility for any bad

judgment, bad conduct, use of excessive force, or lack of good decision-making

for the Amber Washington incident. R.R. Vol. 5, p. 60, l. 12–22. Notably,

when given the opportunity Korey Ferguson did not testify that upon

reinstatement he would amend his behavior in any way; thus, revealing that the

treatment of Amber Washington could happen again to another unprovoked

citizen in the future.

       Korey Ferguson testified he is eligible to return to work because his

TCLEOSE training is up to date and requested reinstatement as a remedy for

the City’s noncompliance with Texas Government Code Sections 614.023(a)

and (b). R.R. Vol. 5, p. 70, l. 24–p. 71, l. 10; C.R. 234–44. Former Police

Chief William Mull 5 testified that reinstatement of Korey Ferguson would not


5
 Chief William Mull retired from Chief of Police after Korey Ferguson’s termination date
and prior to the date of trial. Chief Kenneth Coughlin replaced Mull in April 2014 and Korey
Ferguson sued Coughlin in his official capacity as the Chief of Police for the City of

                                            18
be proper considering the circumstances surrounding his termination. R.R. Vol.

4, p. 73, l. 21–p. 74, l. 11; p. 78, l. 16–22; p. 79, l. 7–p. 80, l. 13. Chief Mull

testified that Korey Ferguson’s misconduct on February 17, 2011, “show[ed]

more or less a lack of experience and a lack of expertise.” R.R. Vol. 4, p. 73, l.

21–p. 74, l. 11. Most disconcerting to the former Chief of Police was the

incredibly short time frame from the time Amber Washington requested

assistance and Korey Ferguson threw her to the ground resulting in an

unreasonable “amount of force” on Amber Washington when he arrested her.

R.R. Vol. 4, p. 78, l. 16–22.               Korey Ferguson’s incident with Amber

Washington makes it clear that his being a police officer is “unsafe” “[does not]

benefit the citizens . . . [or] the Police Department. . . .” R.R. Vol. 4, p. 73, l.

21–p. 74, l. 11.; p. 79, l. 7–p. 80, l. 13.

       Given that upon reinstatement to the department, Chief Coughlin will be

Korey Ferguson’s ultimate supervisor, Chief Coughlin reviewed materials

related to Amber Washington’s complaint, including but not limited to the

investigating officers’ letters of recommendation, Korey Ferguson’s report and

memo, and the video of Korey Ferguson using force and arresting Amber


Plainview, Texas. Ferguson named the City of Plainview and both Chiefs in their official
capacities; however, due to the straightforward allegations regarding statutory compliance
and the fact that this was a nonjury trial, the City elected to overlook the duplicative named
parties and did not file motions to remove Coughlin or Mull as defendants. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Hinds v. Slagel, Civ. A. No. 3:00-cv-2372-D, 2001 WL
548906, *1 (N.D. Tex. May 18, 2001).

                                              19
Washington.     R.R. Vol. 5, p. 76, l. 16–p. 77, l. 15.        Chief Coughlin has

extensive experience in law enforcement and after evaluating the evidence, he

testified Ferguson’s misconduct is a barrier to him serving as an officer, “not

only in Plainview, but anywhere in the United States.” R.R. Vol. 5, p. 77, l.

21–p. 78, l. 12; R.R. Vol. 5, p. 78, l. 7–p. 79, l. 12; R.R. Vol. 5, p. 80, l. 15–22.

Chief Coughlin testified that he could not employ Korey Ferguson as a police

officer, “giving [him] a badge[,] . . . a gun[,] and the authority to put people in

custody,” because Ferguson is clearly unable to control himself when

confronted with a distraught citizen upset about her missing child. R.R. Vol. 5,

p. 76, l. 1–11; p. 77, l. 16–p. 79, 14. Ferguson threw Amber Washington to the

floor when she did not do anything “even . . . close to warranting a charge of

resisting arrest.”   R.R. Vol. p. 79, l. 24–p. 80, l. 14.        Korey Ferguson’s

unprofessional treatment of Amber Washington and his use of excessive force,

which was recorded on video and the leading factor for his termination from the

police department, amounted to citizen abuse and clearly demonstrates Korey

Ferguson is “not suited to be a police officer”. R.R. Vol. 5, p. 78, l. 7–p. 79, l.

12. To reinstate Korey Ferguson to his previous position with the City would

provide him the “opportunity to abuse [] more citizens”. R.R. Vol. 5, p. 80, l.

15–22.




                                         20
      The City of Plainview Police Department has a modest budget and

reinstating Korey Ferguson, with his proven inability to act professionally and

honorably serve the citizens of Plainview, requires Chief Coughlin to “create” a

position for Ferguson that would not involve “be[ing] out on the street working

with the public”. R.R. Vol. 5, p. 80, l. 15–p. 81, l. 21. In turn, reinstatement

will result in “one less officer on the street” in Plainview which disadvantages

the department and the citizens for whom they work to protect. R.R. Vol. 5, p.

81, l. 22–p. 82, l. 4. Further, Chief Coughlin anticipates problems with the

limited number of supervising officers available and Korey Ferguson ultimately

working under the supervision of officers to whom he claims are untruthful.

R.R. Vol. 5, p. 81, l. 11–21.

      After the Trial Court received all evidence, argument of counsel and

proposed judgments, the Trial Court ruled in favor of Ferguson and found “non-

compliance of the mandates outlined in [sections] 614.023(a) and (b) require[d]

that [Korey Ferguson] is entitled to the relief he requests.” C.R. 300–01. The

City of Plainview, Texas was ordered to reinstate Korey Ferguson to his

previous position as a police officer at the rate of pay at the time of dismissal.

C.R. 300–01.




                                       21
                     SUMMARY OF THE ARGUMENT
       The Trial Court ordered the City to reinstate Korey Ferguson to his

former position as a police officer. Based on the letter to counsel from Judge

Kinkaid and his subsequent findings of fact and conclusions of law, evidently

the Court arrived at this determination because Judge Kinkaid believed

reinstatement for noncompliance with Texas Government Code section 614.023

was mandatory. The statute at issue does not contain a required remedy for

noncompliance and Korey Ferguson is not entitled to the extreme relief of

reinstatement simply because he requested it as a remedy.

       Additionally, the Trial Court erred in ordering reinstatement because the

evidence adduced at trial is insufficient to support reinstatement. There is a

complete lack of evidence supporting the notion that Ferguson is currently, or

was at the time of trial, a qualified police officer whose reinstatement would not

cause a disruption among the police department.                Rather, there is

uncontroverted evidence that supports the opposite; the evidence clearly shows

that after the Amber Washington incident, Ferguson is unfit to be a police

officer.

       Lastly, the Trial Court abused its discretion in ordering the City to

reinstate Ferguson to his former position at the rate of pay at the time of

dismissal. Judge Kinkaid’s order to reinstate Korey Ferguson as a police officer



                                       22
violates public policy because the order disregards the Chief of Police’s

assessment and strong opinion that Korey Ferguson should not be a police

officer at all, and places this dangerous officer on the streets of Plainview,

Texas.   The Trial Court’s order reinstating Korey Ferguson is completely

diametric of the testimony heard at trial from the former Chief of Police who

terminated Korey Ferguson for misconduct and the current Chief of Police, who

has extensive law enforcement experience and is responsible for hiring and

maintaining a professional, ethical, and safe fleet of police officers, declared

that Korey Ferguson is unsafe and unfit to be a police officer. Also, numerous

City of Plainview, Texas employees, including the City Manager, evaluated the

decision to terminate Ferguson in connection with Amber Washington’s

complaint and further agreed his misconduct warranted termination. Moreover,

Judge Kinkaid’s order to reinstate Korey Ferguson squarely conflicts with his

finding that Amber Washington’s complaint contained sufficient evidence to

support an allegation of misconduct.




                                       23
                        BRIEF OF THE ARGUMENT

                         I.     STANDARD OF REVIEW

      The City presents three (3) issues on appeal, each with a different

standard of review. Issue number one involves a misinterpretation of the law

whereby the Trial Court determined reinstatement was a mandatory remedy

because the City failed to comply with Texas Government Code section

614.023. In issue one, the Trial Court erred in applying the law; therefore, the

proper standard of review is de novo. See El Paso Nat. Gas Co. v. Minco Oil &

Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999); Mayhew v. Town of Sunnyvale, 964

S.W.2d 922, 928 (Tex. 1998); Barber v. Colorado ISD, 901 S.W.2d 447, 450

(Tex. 1995). Under a de novo standard of review, the appellate court does not

defer to the Trial Court’s conclusions; instead, it conducts its own review of the

record to reach a legal conclusion, which the appellate court may then substitute

in place of the Trial Court’s erroneous conclusion. See Quick v. City of Austin,

7 S.W.3d 109, 116 (Tex. 1998).

      Issue number two addresses a point of error whereby the Trial Court

examined the evidence and ultimately ordered the City to reinstate Korey

Ferguson to his former position as a police officer for the City of Plainview,

Texas. There is a complete lack of evidence to support reinstatement; therefore,

the appellate court reviews this issue under the legal sufficiency standard. Raw



                                       24
Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d 264, 275–76 (Tex.

App.—Amarillo 1988, writ denied). Because Korey Ferguson had the burden

to show he was entitled to reinstatement and failed to do so, the appellate court

must sustain the City’s no-evidence complaint if the record shows one of the

following: 1) there is no evidence supporting the challenged element, 2) the

evidence establishes the opposite of the challenged element, 3) the evidence

offered to prove the challenged element is no more than a mere scintilla, or 4)

the court is barred from considering the only evidence offered to prove the

challenged element. See Serv. Corp. v. Guerra, 348 S.W.3d 221, 228 (Tex.

2011); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Marathon

Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003).

      Under issue number two the City also asserts the Trial Court’s finding of

reinstatement is so contrary to the overwhelming weight of the evidence

adduced at trial that it is clearly wrong and unjust; therefore, the proper

standard of review is factual sufficiency. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); Playboy Enters. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d

250, 264 (Tex. App.—Corpus Christi 2006, pet. denied). Under the factual

sufficiency standard when the City did not have the burden of proof at trial, the

appellate court bases their review on insufficient evidence. See Croucher v.

Croucher, 660 S.W.2d 55, 58 (Tex. 1983); McMillin v. State Farm Lloyds, 180



                                       25
S.W.3d 183, 201 (Tex. App.—Austin 2005, pet. denied); Gooch v. Am. Sling

Co., 902 S.W.2d 181, 184 (Tex. App.—Fort Worth 1995, no writ); see also

Raw Hide Oil & Gas, Inc., 766 S.W.2d at 276. In reviewing the record for

insufficient evidence under the factual sufficiency standard, the appellate court

considers and weighs all the evidence to determine whether the finding should

be set aside because it is so weak or so contrary to the overwhelming weight of

the evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); see Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Raw Hide Oil &

Gas, Inc., 766 S.W.2d at 276.

         Issue number three directly concerns the Trial Court’s subjective

determination; therefore, the proper standard of review is abuse of discretion.

See In re Doe, 19 S.W.3d 249, 253 (Tex. 2000). The appellate court reviews

the Trial Court under this standard to determine whether the Court acted

arbitrarily or unreasonably, or without regard to guiding rules and principles.

Bowie Mem’l Hosp. v. Wright, 79 S.W.2d 48, 52 (Tex. 2002); Walker v. Packer,

827 S.W.2d 833 (Tex. 1992).

   II.     THE TRIAL COURT ERRED IN DETERMINING REINSTATEMENT WAS
           MANDATORY FOR NONCOMPLIANCE OF TEXAS GOVERNMENT CODE
                              SECTION 614.023.

         It is clear that the Trial Court arrived at the remedy of reinstatement

because Judge Kinkaid “believe[s] that the case law holds that the non-



                                        26
compliance of the mandates outlined in 614.023 (a) and (b) require that [Korey

Ferguson] is entitled to the relief he requests.” C.R. 300–301, at 301 (emphasis

added). Judge Kinkaid goes on in the letter to counsel to “grant [Ferguson’s]

request to be reinstated to his position as a police officer of the City of

Plainview, Texas, at the rate of pay at the time of dismissal.” Id. Here Judge

Kinkaid erred in applying the law because non[]compliance of the mandates in

section 614.023 does not require the City to reinstate Korey Ferguson.6

       Although the Trial Court’s decision to reinstate Korey Ferguson claims it

is supported by case law, this case is unlike those where an officer did not

receive a copy of the complaint before the City took disciplinary action and as a

remedy of noncompliance, the officer was granted the relief he requested. See

generally Guthery v. Taylor, 112 S.W.3d 715 (Tex. App.—Houston [14th Dist.]

2003) (emphasizing the “complaint” against Officer Guthery was essentially a

“Notice of Proposed Disciplinary Action” prepared by the Chief after a citizen

made only a verbal complaint that Guthery damaged her front door when he

knocked with his flashlight). Here, the Amber Washington’s complaint against

Korey Ferguson was not so minor as to amount to mere property damage but

instead involves allegations of excessive force and even a video recording that

6
 Please note this conclusion of law challenged by Appellant is inaccurately under the
heading “Findings of Fact” signed by the judge. “The designation is not controlling” and it
must be considered for what it truly is. See, e.g., Ray v. Farmers State Bank of Hart, 576
S.W.2d 607, 608 n.1 (Tex. 1979) (citing McAshan v. Cavitt, 149 Tex 147).

                                             27
supported Chief Mull’s decision to terminate Ferguson. R.R. Vol. 4, p. 73, l.

21–p. 74, l. 11. Additionally, Korey Ferguson had all the information the

statute was designed to give an officer prior to disciplinary action; however, he

did not have a piece of paper in his hand. While granting the relief requested in

Guthery may have been appropriate for an incident of minor property damage,

Korey Ferguson’s request for reinstatement to his position as a police officer

and his misconduct demonstrates such a remedy is inappropriate. R.R. Vol. 4,

p. 73, l. 21–p. 74, l. 8; p. 78, l. 16–22; p. 79, l. 7–p. 80, l. 13; and R.R. Vol. 5, p.

77, l. 21–p. 78, l. 12; p. 78, l. 7–p. 79, l. 12; p. 80, l. 15–22.

       Section 614.023 does not include a specific remedy for noncompliance.

But see Guthery v. Taylor, 112 S.W.3d 715, 724 (stating the Chief “had a clear

duty to refrain from taking disciplinary action”). “When the statute is silent as

to the consequences for noncompliance, we look to the statute’s purpose in

determining the proper remedy”. See City of DeSoto v. White, 288 S.W.3d 389,

389 (Tex. 2009) (quoting Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493

(Tex. 2001)). The legislative history reveals Texas Government Code Chapter

614 provisions are intended to eliminate the “risk of being disciplined over a

baseless accusation.” H.B. 639, 79th Leg. Sess. (Tex. 2005), HOUSE RESEARCH

ORG. BILL ANALYSIS; see also Turner v. Perry, 278 S.W.3d 806, 823 (Tex.

App.—Houston [14th Dist.] 2009, pet. denied) (finding that sections 614.021,



                                           28
.022, and .023 provide police officers with “procedural safeguards to reduce the

risk that adverse employment actions would be based on unsubstantiated

complaints” in a case where disciplinary action was taken without a complaint

from the alleged victim of misconduct).          Additionally, the purpose of

sections 614.021–.023 is to leave discretion with the local departments in

deciding whether the evidence proves an allegation of misconduct. H.B. 639,

79th Leg. Sess. (Tex. 2005), HOUSE RESEARCH ORG. BILL ANALYSIS.

      Not only does section 614.023 lack a remedy for noncompliance, it does

not establish compliance as a prerequisite to the City’s authority to follow its

administrative process when there are allegations that an officer uses excessive

force against a citizen. If cities could not cure a technical error through an

administrative process, then an officer would evade all consequences of

discipline for grievous acts against citizens based solely on a mere technicality.

White, 288 S.W.3d at 396–97; Bracey v. City of Killeen, 417 S.W.3d at 110

(applying this argument to a Civil Service Commission hearing examiner’s

jurisdiction). The absence of reinstatement language supports the notion that

unfit officers should not escape discipline simply on a technicality; according to

White, “‘we must honor that difference’”. White, 288 S.W.3d at 396. Here, the

Trial Court’s determination that reinstatement is mandatory ignores the

legislature’s deliberate omission of declaring a required remedy for



                                       29
noncompliance with section 614.023 of the Texas Government Code.

       An independent analysis of the record shows that section 614.023 exists

to prevent police officers from being subjected to disciplinary actions without

the existence of a valid complaint. See H.B. 639, 79th Leg. Sess. (Tex. 2005),

HOUSE RESEARCH ORG. BILL ANALYSIS; see also Turner, 278 S.W.3d at 823. It

is undisputed that Amber Washington filed a written, signed complaint against

police officer Korey Ferguson for his conduct and excessive force toward her.

R.R. Vol. 5, p. 65, l. 24–p. 66, l. 2; C.R. 355–363, at 356 ¶ 7. The City

investigated Amber Washington’s complaint and even the Trial Court found

“there was sufficient evidence to support an allegation of misconduct.” C.R.

355–63, 356 ¶ 10. In this case, it is clear that the Trial Court’s legal conclusion

is erroneous and reinstatement is merely one remedy for noncompliance with

section 614.023, not the required remedy.         See Quick, 7 S.W.3d at 116

(describing the de novo standard of review).

III.   THE TRIAL COURT ERRED IN ORDERING REINSTATEMENT THE BECAUSE
             EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO SUPPORT
                              REINSTATEMENT.

A.     Legal Insufficiency

       This point of error is reviewed for legal insufficiency because there is no

evidence in the record to support reinstatement. Raw Hide Oil & Gas, Inc., 766

S.W.2d at 275–76. At trial, Korey Ferguson had the burden and failed to show



                                        30
that after the Amber Washington incident he was entitled to reinstatement as a

police officer for the City of Plainview, Texas.

      First, the record is devoid of evidence supporting the appropriateness of

Korey Ferguson’s reinstatement. See Serv. Corp., 348 S.W.3d at 228; Wilson,

168 S.W.3d at 827; Marathon Corp., 106 S.W.3d at 727. The Trial Court did

not make express findings of fact that Korey Ferguson is well-suited or

possesses the necessary skills and expertise to serve as a police officer. C.R.

355–363. Rather, the Trial Court’s determination to reinstate Ferguson was

based on the erroneous conclusion that noncompliance with Texas Government

Code § 614.023 made it mandatory for Ferguson to receive the relief he

requested, i.e. reinstatement. See C.R. 355–363, at 360 ¶ 36. As mentioned in

section II, it is clear that this legal conclusion was incorrect and the appellate

court should substitute its own analysis for the Trial Court’s misguided

conclusion. See Quick, 7 S.W.3d at 116 (describing the appellate court’s role in

a de novo review for a pure question of law).

      Second, the evidence in the record establishes the opposite of the

challenged element. See Serv. Corp., 348 S.W.3d at 228; Wilson, 168 S.W.3d

at 827; Marathon Corp., 106 S.W.3d at 727. Korey Ferguson acknowledged

that numerous people reviewed his conduct in regard to his treatment of Amber

Washington and assessed whether it was appropriate. R.R. Vol. 5, p. 59, l. 8–



                                        31
11 (noting his supervisors reviewing the incident within the police department

had more training and experience in law enforcement as compared to him).

Every person—from the City of Plainview, Texas Police Department, to the

City Grievance Committee and eventually the City Manager—who reviewed

Ferguson’s interaction with Amber Washington determined there was clearly

evidence of misconduct that warranted his expulsion from the police force.

Even the Trial Court found sufficient evidence to support an allegation of

misconduct; all the while, Korey Ferguson maintains he did not do one single

thing wrong. C.R. 355–63, 356 ¶ 10; R.R. Vol. 5, p. 60, l. 12–22. Ferguson

does not take responsibility for any bad judgment, bad conduct, use of

excessive force, or lack of good decision-making. R.R. Vol. 5, p. 60, l. 12–22.

      Former Chief of Police William Mull testified that Korey Ferguson’s

incident with Amber Washington showed a “lack of experience and lack of

expertise” for a law enforcement officer. R.R. Vol. 4, p. 73, l. 21–p. 74, l. 8.

Current Chief of Police Kenneth Coughlin reviewed Ferguson’s conduct with

Amber Washington, including the video showing Ferguson’s excessive use of

force against her. R.R. Vol. 5, p. 76, l. 16–p. 77, l. 15.   The record contains

extensive evidence that reinstatement is not proper; specifically, Chief

Coughlin’s testimony that after the incident with Amber Washington, it is clear

that Korey Ferguson is not an acceptable police officer and falls well below the



                                       32
standards for the City of Plainview, Texas, Police Department. R.R. Vol. 5, p.

77, l. 21–p. 78, l. 12. Chief Coughlin testified that at this point in time,

Ferguson is “not suited to be a police officer” and to reinstate Korey Ferguson

to his previous position with the City of Plainview, Texas, Police Department

would provide him the “opportunity to abuse [] more citizens”. R.R. Vol. 5, p.

78, l. 7–p. 79, l. 12; p. 80, l. 15–22.

       Alternatively, any evidence offered to prove that Korey Ferguson is

qualified and entitled to reinstatement as a police officer amounts to no more

than a mere scintilla. See Serv. Corp., 348 S.W.3d at 228; Wilson, 168 S.W.3d

at 827; Marathon Corp., 106 S.W.3d at 727. For legal insufficiency on this

point of error, the City concedes Ferguson’s previous discipline history alone

did not warrant his termination; however, the Amber Washington incident

marked a point in time in which Korey Ferguson exhibited conduct that was so

unprofessional that Ferguson was no longer able to perform his duties as a law

enforcement officer for the City of Plainview, Texas. The only evidence in the

record that could possibly be construed as supportive in reinstating Ferguson,

because of his qualifications is his own testimony that he is eligible to return to

work, is his required TCLEOSE training is up to date. R.R. Vol. 5, p. 71, l. 6–

10. The minimal amount of evidence that Korey Ferguson may scrounge from

the record is not more than a mere scintilla, and like the other two factors



                                          33
mentioned above, will lead the appellate court to find there is no evidence to

support Korey Ferguson’s reinstatement on the basis that he is a good,

professional, qualified, and reputable law enforcement officer whom is fit to

serve the City of Plainview, Texas.

B.     Factual Insufficiency

       There is factually insufficient evidence to support a finding of

reinstatement after Ferguson’s use of excessive force against Amber

Washington. Upon a review of the record, it is clear that the overwhelming

weight of the evidence adduced at trial is contrary to reinstatement; therefore

this finding should be set aside.

       The testimony at trial from former Chief of Police William Mull and

notably the current Chief of Police Kenneth Coughlin makes it clear that the

Trial Court’s order for the City to reinstate Korey Ferguson is simply wrong

and unjust.   Cain, 709 S.W.2d at 176; Playboy Enters., 202 S.W.3d at 264.

Here, Korey Ferguson did not carry his burden to show reinstatement was

supported by facts in the record. See Croucher, 660 S.W.2d at 58 (the appellate

court bases a factual sufficiency review on insufficient evidence when

Appellant does not have the burden at trial); McMillin, 180 S.W.3d at 201;

Gooch, 902 S.W.2d at 184; see also Raw Hide Oil & Gas, Inc., 766 S.W.2d at

276.



                                      34
      Upon reinstatement, Chief Coughlin will be Korey Ferguson’s ultimate

supervisor. R.R. Vol. 5, p. 76, l. 16–p. 77, l. 15. The current Chief of Police

has extensive law enforcement experience and made it clear that it would

violate public trust to allow Ferguson to resume his position and cloak him with

“a badge and a gun and the authority to put people in custody.” R.R. Vol. 5, p.

76, l. 1–11; p. 77, l. 16–p.78, 12.      The uncontroverted evidence at trial

demonstrates that “Mr. Ferguson is not suited to be a police officer, not only in

Plainview, but anywhere in the United States.” R.R. Vol. 5, p. 78, l. 7–12.

Further, the evidence showed that reinstatement would cause a grave disruption

among the City of Plainview, Texas Police Department in that in order to

uphold his duties to the public and refrain from placing Appellant in a position

where he has the “opportunity to abuse [] more citizens”, Chief Coughlin

“would have to create a position” for Korey Ferguson. R.R. Vol. 5, p. 80, l. 15–

22; p. 81, l. 4–21. The record shows that reinstatement is not only disruptive to

the City but is dangerous because reinstating Korey Ferguson would cause

Plainview to have “one less officer on the street”. R.R. Vol. 5, p. 81, l. 22–p.

82, l. 4. The Trial Court’s finding that Korey Ferguson should be reinstated to

his position as a police officer is clearly contrary to the overwhelming weight of

the evidence. Garza, 395 S.W.2d at 823; see Maritime Overseas Corp., 971

S.W.2d at 407; Raw Hide Oil & Gas, Inc., 766 S.W.2d at 276.



                                       35
 IV.    THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT
         TO REINSTATE APPELLEE TO HIS FORMER POSITION AT THE RATE OF
                        PAY AT THE TIME OF DISMISSAL.

A.     The Trial Court’s Order to Reinstate Appellant Is Against Public Policy

       The Trial Court ordered the City to reinstate Korey Ferguson “to his

position as a police officer of the City of Plainview, Texas[,] at the rate of pay

at the time of dismissal” without reference to guiding rules or principles. Bowie

Mem’l Hosp., 79 S.W.2d at 52; Walker, 827 S.W.2d at 839. The City of

Plainview is a home rule municipal corporation with broad discretionary

powers limited only by the Texas Constitution that states no charter or

ordinance “shall contain any provision inconsistent with the Constitution of the

State, or of the general laws enacted by the Legislature of this State.” City of

Plainview Charter, Art. I, Powers of the City; Tex. Const., art. XI, § 5

(Vernon’s Supp. 2014); and TEX. LOC. GOVT. CODE, § 51.071 (Vernon’s 2008).

As a home rule municipality, the City looks to the legislature for limits on their

power, and absent any, it possesses the full power of self-government. Id.

       The City of Plainview has not adopted state civil service provisions at

Texas Local Government Code, Chapter 143 (Vernon’s 2008). Rather, City

employees are subject to the City of Plainview Charter, Section 3.04(1), which

states the City Manager’s powers and duties in regard to disciplinary matters as

follows:

                                       36
         “(1) [a]ppoint and, when necessary for the good of the service, suspend
or remove all city employees and appointive administrative officers provided
for by or under this charter, except as otherwise provided for by law, this
charter or personnel rules adopted pursuant to this charter. . . .”

City of Plainview Charter, Art. III, Section 3.04(1).       Further, the City of

Plainview Charter declares the City of Plainview is an at-will employer; in

accordance with the Charter, the City Manager has approved and amended

personnel policies applicable to all City employees, including the police

department. See City of Plainview Charter, Art. IV, Section 4.02 (delegating

power to the City Manager); City of Plainview Personnel Policy, Part X,

Discipline. This policy states that dismissals are “effective upon the approval

of the employee’s director and the City Manager.” City of Plainview Personnel

Policy, § 10.2.E. The grievance procedure and administrative appeal is set out

in the personnel policy for all City employees. Essentially, the administrative

appeal allows an employee to seek redress with 1) a joint meeting with the

supervisor and director, 2) a grievance committee hearing, and 3) a final appeal

to the City Manager. City of Plainview Personnel Policy, § 10.5.E.

      In this case, the City complied with the administrative remedies

mandated by the City of Plainview Charter and Personnel Policies. City of

Plainview Charter, Article I, Powers of the City; Tex. Const., art. XI at § 5; and

TEX. LOC. GOVT. CODE § 51.071. Korey Ferguson and his attorney stepped

through the administrative process presenting evidence, confronting Amber

                                       37
Washington, and arguing Ferguson should not be terminated solely because the

City failed to give Korey Ferguson a physical copy of Amber Washington’s

complaint prior to taking any disciplinary action. Tex. Govt. Code § 614.023.

Aside from the City’s failure to comply with section 614.023, there was ample

support during the administrative process to determine Korey Ferguson

subjected a Plainview citizen to excessive force and acted improperly. C.R.

355–63, at 356 ¶ 10.    As such, following the investigation and numerous

reviews and appeals provided by the City, the City Manager ultimately made

the decision that Ferguson’s actions warranted his termination. R.R. Vol. 5, p.

11, l. 12–16, 22–p. 12, l. 1; p. 67, l. 2–7. Korey Ferguson was afforded a

lengthy hearing before the grievance committee whereby the City reviewed the

Amber Washington incident and allegations of misconduct; the grievance

committee upheld Ferguson’s termination based on their review of the

evidence. R.R. Vol. 5, p. 6, l. 3–14; l. 24–p. 10, l. 8. Accordingly, the Trial

Court found that Amber Washington’s complaint was investigated and Korey

Ferguson’s misconduct warranted termination. C.R. 356.

      The Texas Supreme Court stated that deference should be given to the

administrative agencies “when (1) the agency is staffed with experts trained in

handling complex problems within the agency’s purview, and (2) great benefit

is derived from the agency’s uniform interpretation of laws within its purview



                                      38
and the agency’s rules and regulations when courts and juries might reach

differing results under similar fact situations”. In re Southwest Bell Telephone

Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) . In this regard, the Trial Court

upheld the determination of the City’s decision-makers within the

administrative process agreeing the evidence supported the finding that Korey

Ferguson subjected a Plainview citizen to excessive force. See C.R. 355–63, at

356 ¶ 10.

      During the grievance process, the grievance committee upheld the police

department’s decision to terminate Ferguson after hearing witnesses, viewing

evidence, and hearing from Mr. Ferguson’s attorney. R.R. Vol. 5, p. 11, l. 12–

16, 22–p. 12, l. 1; p. 67, l. 2–7.    Korey Ferguson and his attorney even

confronted the complainant on her story after she told the Committee what he

did to her.    Id.   After the hearing, the City Manager made the final

determination to terminate the officer for his excessive force against a

Plainview citizen. Id.

      A city is staffed with people trained to handle complex problems

resulting when an officer’s actions may warrant discipline, and if necessary,

determine the appropriate level of discipline to impose. See In re Southwest

Bell Telephone Co., L.P., 226 S.W.3d at 403; Nelson v. City of Dallas, 278

S.W.3d 90, 96 (Tex. App.—Dallas 2009).          Allowing courts and juries to



                                      39
determine police disciplinary issues is likely to produce varied results for

similar factual situations creating uncertainty and less uniformity in addressing

police disciplinary issues. The uncertainty and lack of uniformity undermines

“both the City’s authority to operate and manage the department and the

confidence of the public and the police officers that discipline issues will be

handled in a uniform manner.” Nelson, 278 S.W.3d at 96.

      The Trial Court’s order that the City reinstate Korey Ferguson essentially

amounts to requiring the City of Plainview to violate its public trust of its

citizens and allow an unfit officer to serve in a public safety position. R.R. Vol.

5, p. 77, l. 21–p. 79, l. 12. Reinstatement under these circumstances is clearly

without reference to guiding principles and unreasonably requires the City to

breach its duty to the public to provide its citizens health and safety within the

community and reinstate an unsafe officer to the police force.

V.    THE REMEDY OF REINSTATEMENT DOES NOT FIT THE CIRCUMSTANCES
                              PRESENTED

      The order reinstating Korey Ferguson is arbitrary and unreasonable

because it applies a severe penalty for the City’s technical failure to comply

with section 614.023 that is not supported within the statute itself, its legislative

history or purpose, lacks legal and factual sufficiency, and is against public

policy. TEX. GOVT. CODE § 614.023. The Trial Court has broad discretion;

however, a “‘remedy . . . must fit the circumstances presented”. ERI Consulting

                                         40
Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 874 (Tex. 2010) (discussing the

equitable remedy of forfeiture concerning a trustee’s breach of trust). When the

Court orders an equitable remedy it must consider “[t]he gravity and timing of

the violation . . . and whether a violation is clear and serious”. Id. Here, the

City’s noncompliance in failing to provide Korey Ferguson with a piece of

paper before taking disciplinary action, which was cured, is a hyper-technical

violation that does not deserve such a severe remedy as reinstating a dangerous

and unfit police officer.

      Similar to noncompliance with Texas Government Code section 614.023,

courts have addressed the imbalance of reinstating an officer whose misconduct

is so unacceptable because of a City’s hyper-technical procedural violation in

the civil service setting.   For example, the City of Athens police chief

indefinitely suspended a police officer for engaging in sexual relations with a

woman while on duty as well as committing other departmental policy

violations. City of Athens v. MacAvoy, 353 S.W.3d 905, 906 (Tex. App.—Tyler

2011). The Tyler court did not agree with the hearing examiner that an officer

should be reinstated solely because the City did not comply with Texas

Government Code § 614.023. This court followed the Texas Supreme Court’s

analysis and concluded that this statute did not contain specific consequences

for a City’s noncompliance. Id. at 909–10 (citing White, 288 S.W.3d at 395–



                                      41
397 and City of Pasadena v. Smith, 292 S.W.3d 14, 21 (Tex. 2009)). The court

explained that if the complainant’s statement must be given before discipline

can be imposed, then a police officer could not be relieved of his duties after he

committed a grave breach of the public’s trust. MacAvoy, 353 S.W.3d at 909–

10.   In interpreting a very similar statute imposing a mandatory duty on

municipalities related to an employee’s termination, the Supreme Court plainly

states that noncompliance with that duty does not indicate the employee cannot

be disciplined absent the legislature’s specific statement to the contrary. Id. at

910 (citing White, 288 S.W.3d at 395–97). Without a “legislative directive that

the failure to provide a complainant’s statement prior to discipline means that

the officer will escape discipline,” the Trial Court exceeded its jurisdiction in

mandating reinstatement solely on a violation of the statute. See MacAvoy, 353

S.W.3d at 910 (citing Smith, 292 S.W.3d at 21).

      As mentioned previously under Section I., the legislature failed to state a

specific remedy for noncompliance which opens the door to options such as

some form of abatement or the opportunity to cure the noncompliance as the

Court in White did. See generally White, 288 S.W.3d 389. Reinstating an

officer that the City knows inflicted excessive force on a Plainview citizen

would violate the City’s public trust given the vital role police officers perform

for our society. Id. at 396–97; Bracey, 417 S.W.3d at 109. The Texas Supreme



                                       42
Court stated that curing the notice requirement allows the City to assure

“appellate rights without dismissing a case against a potentially unfit officer... .”

White, 288 S.W.3d at 399 (analyzing the pre-suit notice requirement for civil

service employees).     The knowledge that communities do not need “unfit

officers” on their police force for public safety purposes may be the very reason

the legislature deliberately left the door open for remedies for noncompliance;

without a prescribed remedy, the relief for noncompliance with the statute can

fit the fact situation that led to the disciplinary action against a police officer.

See generally id.; Smith, 292 S.W.3d 14 (applying this same analysis to the

Civil Service Commission’s remedy for noncompliance with notice

requirements).

      In the case at bar, Korey Ferguson was provided the opportunity to

defend himself against Amber Washington’s allegations before the City

Manager finalized his termination; the City afforded Ferguson a number of

appeals through the administrative process to ensure the officer’s rights were

not violated. R.R. Vol. 5, p. 6, l. 3–14; l. 24–p. 10, l. 8; p. 11, l. 12–16, 22–p.

12, l. 1; p. 63, l. 8–p. 64, l. 12; p. 67, l. 2–7. Ferguson had an attorney through

the administrative process, knew the allegations against him, presented

evidence and confronted his accuser in a hearing. Id. Here, the failure to hand

Korey Ferguson a piece of paper did not deprive him of any rights regarding his



                                         43
termination nor has he ever claimed a violation of such rights.7 See generally,

Baca v. City of Dallas, 796 S.W.2d 497, 499 (Tex. App.—Dallas 1990);

Nelson, 278 S.W.3d at 97; see Cleveland Brd. of Educ.v. Loudermill, 470 U.S.

532, 538 (1985). The City acted in accordance with their charter and personnel

policies and followed their administrative process for disciplining an employee.

As a home rule municipal corporation, the City was exercising its broad

discretionary powers not limited by the Texas Constitution or the laws of the

State. See City of Plainview Charter, Art. I, Powers of the City; Tex. Const.,

art. XI at § 5; TEX. LOC. GOVT. CODE § 51.071. Consequently, the Trial Court’s

order to reinstate Korey Ferguson is arbitrary and unreasonable because it

requires the City of Plainview, Texas, to reinstate an unfit officer who was

terminated for excessive force against a Plainview citizen when she was seeking

help from the police department because “[h]er child [was] missing”. R.R. Vol.

5, p. 78, l. 13–p. 79, 12.




7
  Korey Ferguson’s complaint in the underlying suit was limited to noncompliance with Tex.
Govt. Code § 614.023 in not being provided with a copy of Amber Washington’s complaint
before he was terminated by Chief Mull on March 9, 2013. In fact, Korey Ferguson testified
that Chief Mull “reached over the desk and handed [the complaint] to [him] and [he] read it
and started kind of skimming through it” but he gave the document back to Chief Mull and
was not provided a copy for his attorney. R.R. Vol. 5, p. 31, l. 12–p. 32, l. 5.

                                            44
                       CONCLUSION AND PRAYER
       The Trial Court’s determination that reinstatement is mandatory for

noncompliance     of   Texas   Government      Code    Section   614.023    is   a

misinterpretation of the law. The statute deliberately lacks a specified remedy

for noncompliance and the Trial Court’s order of reinstatement ignores the

purposeful construction and purpose of the law. As such, the Trial Court’s

determination is error and the appellate court’s analysis should be substituted in

its place.

       Reinstatement is not supported in the record because there is a clear lack

of evidence that Korey Ferguson is an honorable law enforcement officer

capable of performing his duties and interacting with the public following the

Amber Washington incident. The record is devoid of evidence that supports the

Trial Court’s order to reinstate Korey Ferguson; therefore, this finding should

be set aside.

       The Trial Court abused its discretion in ordering the City to reinstate

Korey Ferguson as it is against public policy for a District Court to force a city

to arm an unfit officer against the overwhelming evidence that Korey Ferguson

used excessive force against a citizen. Korey Ferguson possessed all of the

information the statute at issue was designed to provide, but simply did not

have a piece of paper in front of him. Thus, the hyper-technical violation of



                                       45
noncompliance that occurred here does not warrant the remedy of reinstatement

because it does not fit the circumstances presented and was arbitrary and

unreasonable.

                                 Respectfully submitted,

                                 SPROUSE SHRADER SMITH P.C.
                                 Mark D. White, SBN. 21317900
                                 mark.white@sprouselaw.com
                                 Malerie T. Anderson, SBN. 24087102
                                 malerie.anderson@sprouselaw.com
                                 701 S. Taylor, Suite 500
                                 P. O. Box 15008
                                 Amarillo, Texas 79105-5008
                                 Phone: (806) 468-3300;
                                 Fax: (806) 373-3454

                                 /s/ Mark D. White
                                 Mark D. White

                                 and

                                 CITY OF PLAINVIEW
                                 Leslie Spear, SBN. 21202700
                                 lschmidt@plainviewtx.org
                                 901 Broadway Street
                                 Plainview, Texas 79072
                                 Phone: (806) 296-1127
                                 Fax: (806) 296-1125

                                 ATTORNEYS FOR APPELLANTS
                                 CITY OF PLAINVIEW TEXAS, WILLIAM
                                 MULL, IN HIS OFFICIAL CAPACITY AS
                                 CHIEF OF POLICE OF THE CITY OF
                                 PLAINVIEW POLICE DEPARTMENT, AND
                                 KEN COUGHLIN, IN HIS OFFICIAL
                                 CAPACITY AS CHIEF OF POLICE OF THE
                                 CITY OF PLAINVIEW POLICE DEPARTMENT

                                       46
                            CERTIFICATE OF SERVICE
I hereby certify that on February 18, 2015, I electronically filed the foregoing
document using the electronic case filing system. The electronic case filing
system will send a “Notice of Electronic Filing” to the following attorneys of
record who have consented in writing to accept this Notice as service of this
document by electronic means:
      ATTORNEY FOR APPELLEE:

      TEXAS MUNICIPAL POLICE ASSOCIATION           Via Certified Mail, RRR
      Randall C. Doubrava                          & email
      6200 La Calma Drive, Suite 200
      Austin, Texas 78752

      DESHAZO & NESBITT, L.L.P.                    Via Certified Mail, RRR
      Rachel Noffke                                & email
      809 West Avenue
      Austin, Texas 78701

      LAW OFFICE OF LANCE F. WYATT, PLLC           Via Certified Mail, RRR
      Lance F. Wyatt                               & email
      141 Countryside CT Ste 150
      Southlake, Texas 76092




                                            /s/ Mark. D. White
                                            Mark D. White




                                      47
                   CERTIFICATE OF COMPLIANCE
      Certificate of Compliance with Type-Volume Limitation, Typeface
Requirements, and Type Style Requirements:

      1.     This brief complies with the type-volume limitation of Texas Rule
of Appellate Procedure 9.4(i) because:

      This brief contains 8,553 words, excluding the parts of the brief
      exempted by the Texas Rules of Appellate Procedure.

     2.     This brief complies with the typeface requirements of Texas Rule
of Appellate Procedure 9.4(e) and the style requirements of Texas Rule of
Appellate Procedure 9.4(b)-(c) because:

      This brief has been prepared in a proportionally spaced typeface using
      Microsoft® Office Word 2007 in Times New Roman 14 font size.



                                     /s/ Mark D. White
                                     Mark D. White



827894_1.docx
2326.01




                                     48
                                APPENDIX


1.   TEX. GOVT. CODE § 614.021
2.   TEX. GOVT. CODE § 614.022
3.   TEX. GOVT. CODE § 614.023
4.   TEX. LOC. GOVT. CODE, § 51.071 (Vernon’s 2008)
5.   City of Plainview Charter, Art. I, Powers of the City
6.   Tex. Const., art. XI, § 5 (Vernon’s Supp. 2014)
7.   City of Plainview Personnel Policy
8.   Cases




                                     49
APPENDIX 1
§ 614.021. Applicability of Subchapter, TX GOVT § 614.021




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 6. Public Officers and Employees (Refs & Annos)
        Subtitle A. Provisions Generally Applicable to Public Officers and Employees
           Chapter 614. Peace Officers and Fire Fighters
              Subchapter B. Complaint Against Law Enforcement Officer or Fire Fighter

                                            V.T.C.A., Government Code § 614.021

                                            § 614.021. Applicability of Subchapter

                                                 Effective: September 1, 2005
                                                          Currentness


(a) Except as provided by Subsection (b), this subchapter applies only to a complaint against:


  (1) a law enforcement officer of the State of Texas, including an officer of the Department of Public Safety or of the Texas
  Alcoholic Beverage Commission;


  (2) a fire fighter who is employed by this state or a political subdivision of this state;


  (3) a peace officer under Article 2.12, Code of Criminal Procedure, or other law who is appointed or employed by a political
  subdivision of this state; or


  (4) a detention officer or county jailer who is appointed or employed by a political subdivision of this state.


(b) This subchapter does not apply to a peace officer or fire fighter appointed or employed by a political subdivision that is
covered by a meet and confer or collective bargaining agreement under Chapter 143 or 174, Local Government Code, if that
agreement includes provisions relating to the investigation of, and disciplinary action resulting from, a complaint against a
peace officer or fire fighter, as applicable.


Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 507, § 1, eff. Sept. 1, 2005.



Notes of Decisions (5)

V. T. C. A., Government Code § 614.021, TX GOVT § 614.021
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
APPENDIX 2
§ 614.022. Complaint to Be in Writing and Signed by Complainant, TX GOVT § 614.022




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 6. Public Officers and Employees (Refs & Annos)
        Subtitle A. Provisions Generally Applicable to Public Officers and Employees
           Chapter 614. Peace Officers and Fire Fighters
              Subchapter B. Complaint Against Law Enforcement Officer or Fire Fighter

                                           V.T.C.A., Government Code § 614.022

                           § 614.022. Complaint to Be in Writing and Signed by Complainant

                                                 Effective: September 1, 2005
                                                          Currentness


To be considered by the head of a state agency or by the head of a fire department or local law enforcement agency, the
complaint must be:


  (1) in writing; and


  (2) signed by the person making the complaint.


Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 507, § 1, eff. Sept. 1, 2005.



Notes of Decisions (11)

V. T. C. A., Government Code § 614.022, TX GOVT § 614.022
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
APPENDIX 3
§ 614.023. Copy of Complaint to Be Given to Officer or Employee, TX GOVT § 614.023




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 6. Public Officers and Employees (Refs & Annos)
        Subtitle A. Provisions Generally Applicable to Public Officers and Employees
           Chapter 614. Peace Officers and Fire Fighters
              Subchapter B. Complaint Against Law Enforcement Officer or Fire Fighter

                                            V.T.C.A., Government Code § 614.023

                            § 614.023. Copy of Complaint to Be Given to Officer or Employee

                                                 Effective: September 1, 2005
                                                          Currentness


(a) A copy of a signed complaint against a law enforcement officer of this state or a fire fighter, detention officer, county jailer,
or peace officer appointed or employed by a political subdivision of this state shall be given to the officer or employee within
a reasonable time after the complaint is filed.


(b) Disciplinary action may not be taken against the officer or employee unless a copy of the signed complaint is given to the
officer or employee.


(c) In addition to the requirement of Subsection (b), the officer or employee may not be indefinitely suspended or terminated
from employment based on the subject matter of the complaint unless:


  (1) the complaint is investigated; and


  (2) there is evidence to prove the allegation of misconduct.


Credits
Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 507, § 1, eff. Sept. 1, 2005.



Notes of Decisions (15)

V. T. C. A., Government Code § 614.023, TX GOVT § 614.023
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
APPENDIX 4
§ 51.071. Subchapter Applicable to Home-Rule Municipality, TX LOCAL GOVT § 51.071




  Vernon's Texas Statutes and Codes Annotated
    Local Government Code (Refs & Annos)
      Title 2. Organization of Municipal Government
        Subtitle D. General Powers of Municipalities
           Chapter 51. General Powers of Municipalities
              Subchapter E. Provisions Applicable to Home-Rule Municipality

                                         V.T.C.A., Local Government Code § 51.071

                               § 51.071. Subchapter Applicable to Home-Rule Municipality

                                                          Currentness


This subchapter applies only to a home-rule municipality.


Credits
Acts 1987, 70th Leg., ch. 149, § 1, eff. Sept. 1, 1987.


Editors' Notes

                                                      REVISOR'S NOTE

                                                      2008 Main Volume

       The revised law adds this section as a drafting convenience. The source law for this subchapter applies only to a
       home-rule municipality.



Notes of Decisions (1)

V. T. C. A., Local Government Code § 51.071, TX LOCAL GOVT § 51.071
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
APPENDIX 5
                                  CmDFPUI-EWIJIIAIITlR

                                     Article I
                                 Powers of the City

Section 1.01. Powers of the City
   The City shall have all powers possible for a city to have under the constitution
and laws of this State as fully and completely as though they were specifically
enumerated in this charter.

Section 1.02. Construction.
    The powers of the City under this charter shall be construed liberally in favor of
the city, and the specific mention of particular powers in the charter shall not be
construed as limiting in any way the general power granted in this charter or by the
State.

Section 1.03. Intergovernmental Relations.
    The City may exercise any of its powers or perform any of its functions and may
participate in the financing thereof, jointly or in cooperation, by contract or otherwise,
with any one or more states or any state civil division or agency, or the United States
or any of its agencies.       ·

Section 1.04. Corporate Name.
      All inhabitants of the City of Plainview, Hale County, Texas, within the corporate
limits, shall constitute a body politic, incorporated under the laws of the State of
Texas, and to be known by the name and designation of the "City of Plainview" with
all rights, powers, privileges, immunities, and duties herein granted and defined, and
as may be provided by any amendments of the Charter of the City of Plainview.

                                       Article II
                                    CITY COUNCIL

Section 2.01. Powers and Duties.
    a. All powers of the City shall be vested in the mayor and city council except as
otherwise provided by law or this charter and the mayor and city council shall provide
for the exercise thereof and for the performance of all duties and obligations
imposed on the city by law.
    b. Directors will be reviewed by the Mayor and City Council every two years for
job performance from the date of their original appointment.

Section 2.02. Composition, Eligibility, Election and Terms.
   (a) Composition. There shall be a city council composed of the mayor and
seven (7) members. One council member shall be elected by the voters in each of
seven (7) council districts. The mayor shall be elected at-large.
   (b) Eligibility. Only those citizens who are eligible to become registered voters

                                            1
                                  CmDFPUJIWIEWC/IAIITBI

of the City shall be eligible to hold the office of councilmember or mayor.
Councilmembers and the mayor shall have resided within the City for one year;
Councilmembers shall have resided within the district from which said
councilmember is to be elected for at least six (6) months; and not have served
more than two (2) consecutive full terms, immediately preceding the year in which
elective office is sought. In the event a boundary change, caused by redistricting of
the boundaries within the city limits, results in a potential councilmember failing to
reside in the district for the required six months, he/she will be allowed to run for
election in the current district in which he/she resides, provided (all other eligibility
requirements are met. Additionally, should a boundary change result in an
incumbent councilmember failing to reside in the district from which he/she was
elected, he/she shall serve the remainder of the term for the district from which
he/she was elected. At the next regular election, he/she will required to run for
election from the newly determined district, if they wish to continue to serve on the
city council.
     (c) Election and Terms of Councilmembers. The regular election of
Councilmembers shall be held on the first uniform election date in May in each even-
 numbered year in the manner provided by law. At the first regular election under this
charter, in 1996, Councilmembers from council districts five, six and seven shall be
elected, and shall serve for terms of four {4) years. At the second regular election
 under this charter, in 1998, Councilmembers from council districts one, two, three
 and four shall be elected, and shall serve for terms of four {4) years. Thereafter, all
 Councilmembers shall serve for terms of four (4) years.

Section 2.03. Mayor
     The regular election of mayor shall be held at the second regular election under
this charter, in 1998, and shall be at-large. The mayor shall serve for a term of two
(2) years. Effective with the 2000 elections the mayor, thereafter, shall serve for a
term of four (4) years; and not have served more than two (2) consecutive full terms
immediately preceding the year in which elective office is sought.

    The mayor shall be a member of the city council, shall have the power to vote
and shall preside at meetings of the council, represent the city in intergovernmental
relationships, present an annual state of the city message, and perform other duties
specified by the council. The mayor shall be recognized as head of the city
government for all ceremonial purposes and by the governor for purposes of military
law, but shall have no administrative duties. The council shall, at the first regular
meeting following the regular scheduled election for council, elect from among its
members a mayor-pro tempore who shall act as mayor during the absence or
disability of the mayor and, if a vacancy occurs, shall become mayor until a new
mayor is elected.

Section 2.04. Compensation; Expenses.

                                            2
     The mayor and city council may determine the annual salary of the mayor and
Councilmembers by ordinance, but no ordinance increasing such salary shall
become effective until the date of commencement of the terms of Councilmembers
elected at the next regular election. The mayor and Council members shall receive
their actual and necessary expenses incurred in the performance of their duties of
office.

Section 2.05. Prohibitions.
      (a) Holding Other Office. Neither the Mayor or councilmember shall hold any
other city office or employment during the term for which the member was elected to
the council. No former mayor or councilmember shall hold any compensated
appointive office or employment with the City until one year after the expiration of the
term for which the member was elected to the council. Nothing in this section shall
be construed to prohibit the council from selecting any current or former mayor or
council member to represent the city on the governing board of any regional or other
intergovernmental agency.
      (b) Appointments and Removals. Neither the mayor or city council members
shall in any manner control or demand the appointment or removal of any
administrative officer or employee whom the city manager or any subordinate of the
city manager i~ empow~red to appoint, but the council may express its views and
fully and freely discuss with the city manager anything pertaining to appointment and
removal of such officers and employees.
      (c) Interference with Administration. Except for the purpose of inquiries and
investigations under 3 2.09, the mayor and Councilmembers shall deal with the City
 officers and employees·who are subject to the direction and supervision of the city
 manager solely through the city manager, and neither the mayor or councilmembers
 shall give orders to any such officer or employee, either publicly or privately.

Section 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies.
     (a) Vacancies. The office of mayor or councilmember shall become vacant
upon the member's death, resignation, removal from office or forfeiture of office in
any manner authorized by law.
     (b) Forfeiture of Office. A council member, including the mayor, shall forfeit that
office if the councilmember during the term of office for which elected:
     (1) lacks at any time any qualification for the office prescribed by this charter or
bylaw.
     (2) violates any express prohibition of this charter.
     (3) is convicted of a crime involving moral turpitude; A moral turpitude is
defined as an act of baseness, vileness or depravity in the private and social duties
which human beings owe their fen ow human beings or to society in general, contrary
to the accepted and customary rule of right and duty between human beings.
     (4) fails to attend three consecutive regular meetings of the council without
being excused by the council.

                                           3
                                  CITYIFPU/JmEWCIIAIITBI

The above list is not to be construed as being all-inclusive.
    (c) Filling Vacancies. A vacancy in the City Council, including the Mayor, shall
not be filled by appointment, but must be filled by majority vote of the qualified voters
at a special election called for such purpose within one hundred twenty (120) days
after such vacancy occurs. Vacancies filled by special elections shall be for the
remainder of the term.

Section 2.07. Judge of Qualifications.
     The mayor and city council shall be the judge of the election and qualifications of
its members and of the grounds for forfeiture of their office. The mayor and council
shall have the power to set additional standards of conduct for its members, by
ordinance, beyond those specified in the charter and may provide for such penalties
as it deems appropriate, including forfeiture of office. In order to exercise these
powers, the council shall have the power to subpoena witnesses, administer oaths,
and require production of evidence. A member charged with conduct constituting
grounds for forfeiture of office shall be entitled to a public hearing on demand and
notice of such hearing shall be published in one or more newspapers of general
circulation in the city at least one week in advance of the hearing. Decisions made
by the council under this section shall be subject to judicial review.

Section 2.08. City Secretary.
    The city secretary shall give notice of council meetings to its members and the
public, keep the journal of its proceedings and perform such other duties as are
assigned by this charter or by the council or by the city manager or by state law.

Section 2.09. Investigations.
    The city council may make an investigation into the affairs of the city and the
conduct of any city department, office or agency and for this purpose may subpoena
witnesses, administer oaths, take testimony, and require the production of evidence.
 Failure or refusal to obey a lawful order issued in the exercise of these powers by
the council shall be a class C misdemeanor.

Section 2.10. Independent Audit.
     The mayor and city council shall provide for an independent annual audit of all
City accounts and may provide for more frequent audits as it deems necessary, such
audits shall be made by a certified public accountant or firm in accordance with
generally accepted governmental accounting principals and generally accepted
governmental auditing standards of such accountants. The mayor and council may,
without requiring competitive bids, designate such accountant or firm annually or for
a period not exceeding five (5) years, but designation for any particular fiscal year
shall be made no later than 30 days after the beginning of such fiscal year. If the
state makes such an audit, the council may accept it as satisfying the requirements
of this section.

                                            4
Section 2.11. Procedure
    (a) Meetings. The mayor and council will meet regularly at least once in every
month at such times and places as the council may prescribe by resolution. Special
meetings may be held on the call of the mayor or of three (3) or more members.
Except as allowed by state law, all meetings shall be public.
    (b) Rules and Journal. The city council will determine its own rules and order of
business and shall provide for keeping a journal of its proceedings. This journal
shall be a public record.
     (c) Voting. Voting, except on procedural motions, shall be by roll call and the
ayes and nays shall be recorded in the journal. Five (5) members of the council
shall constitute a quorum. No action of the council, except as otherwise provided in
this charter or state law, shall be valid or binding unless adopted by a majority of
those council members present and voting.

Section 2.12. Action Requiring an Ordinance.
    In addition to other acts required by law or by specific provision of this charter to
be done by ordinance, those acts of the city council shall be by ordinance which:
     (1) Adopt or amend an administrative code or establish, alter, or abolish
 any city department, office or agency.
     (2) Provide for a fine or other penalty or establish a rule of regulation for
 violation of which a fine or other penalty is imposed.
     (3) Levy taxes.
     (4) Grant, renew, or extend a franchise.
     (5) Regulate the rate charged for its services by a public utility.
     (6) Authorize the borrowing of money.
     (7) Convey or lease or authorize the conveyance or lease of any lands of
 the city.
     (8) Regulate land use and development; and
     (9) Amend or repeal any ordinance previously adopted.
    (1 0) Set the rate for services, fees or licenses provided by the City.
    Acts other than those referred to in the preceding sentence may be done either
by ordinance or by resolution or by motion.

Section 2.13. Ordinances in General.
    (a) Form. Every proposed ordinance shall be introduced in writing and in the
form required for final adoption. No ordinance shall contain more than one      ·
which shall be                    in its title. The enacting clause shall
                              . Any ordinance which repeals or amends an existing
ordinance or part of the city code shall set out in full the ordinance, sections, or
subsections to be repealed or amended, and shall indicate matters to be omitted by
enclosing in brackets or by strike out type and shall indicate new matters by
underscoring or by italics, or some other method.

                                            5
     (b) Procedure. An ordinance may be introduced by any member at a regular or
special meeting of the council. An ordinance can not be acted upon at the meeting it
is introduced, unless an emergency exists. Upon introduction of any ordinance, the
city secretary shall (1) distribute a copy to each councilmember and to the city
manager (2) file a reasonable number of copies in the office ofthe city secretary and
such other public places as the council may designate. The council may adopt the
ordinance with or without amendment or reject it, but if it is amended as to any
matter of substance, the council shall not adopt it until the ordinance or its amended
section(s) have been subjected to all the procedures herein before required in the
case of a newly introduced ordinance. As soon as practicable after adoption, the city
secretary shall have the ordinance and a notice of its adoption published, if required
by this charter, state law or the ordinance, and made available to the public at a
reasonable price.
      (c) Effective Date. Except as otherwise provided in the ordinance, state law or
this charter, every adopted ordinance shall become effective immediately after its
 adoption by the city council. All ordinances, resolutions, rules and regulations now in
force in the City, and not in conflict herewith, shall remain in force under this Charter
 until altered, amended or repealed by the city council, after this charter shall take
 effect.
      (d) "Publish" Defined. As used in this section, the term "publish" means to print
 in one or more newspapers of general circulation in the city: (1) The ordinance or a
 brief summary thereof. or a caption thereof, and (2) the places where copies of it
 have been filed and the times when they are available for public inspection and
 purchase at a reasonable price.

Section 2.14. Emergency Ordinances.
    To meet a public emergency affecting life, health, property or the public peace,
the city council may adopt one or more emergency ordinances, but such ordinances
may not levy taxes, grant, renew or extend a franchise, regulate the rate charged by
any public utility for its services or authorize the borrowing of money except as
provided in 3 5.07(b). An emergency ordinance shall be introduced in the form and
manner prescribed for ordinances generally except that it shall be plainly designated
as an emergency ordinance and shall contain, after the enacting clause, a
declaration stating that an emergency exists and describing it in clear and specific
terms. An emergency ordinance may be adopted with or without amendment or
rejected at the meeting at which it is introduced pursuant to Section 2.11 of this
Chapter, except that an affirmative vote of the greater of four (4) members or a
majority of those present and voting shall be required for adoption. After its adoption
the ordinance shall be published and printed as prescribed for other adopted
ordinances. It shall become effective upon adoption or at such later time as it may
specify. Every emergency ordinance except one made pursuant to 35.07(b) shall
automatically stand repealed as of the 61 st day following the date on which it was
adopted, but this shall not prevent re-enactment of the ordinance in the manner

                                            6
specified in this section if the emergency still exists. An emergency ordinance may
also be repealed by adoption of a repealing ordinance in the same manner specified
in this section for adoption of emergency ordinances.

Section 2.15. Code of Technical Regulations.
    The city council may adopt any standard code of technical regulations by
reference thereto in an adopting ordinance. The procedure and requirements
governing such an adopting ordinance shall be as prescribed for ordinances
generally except that:
    (1) The requirements of 32.13 for distribution and filing of copies of the
    ordinance shall be construed to include copies of the code of technical
    regulations as well as of the adopting ordinance, and
    (2) A copy of each adopted code of technical regulations as well as of the
    adopting ordinance shall be authenticated and recorded by the city
    secretary pursuant to 32.16(a).
    Copies of any adopted code of technical regulations shall be made available by
the city secretary for distribution or for purchase at actual cost to the City.

Section 2.16. Authentication and Recording; Codification; Printing.
     (a) Authentication and Recording. The city secretary shall authenticate by
signing and shall record in full in a properly indexed book kept for the purpose, all
ordinances and resolutions adopted by the city council.
     (b) Codification. Within three years after adoption of this charter and at least
every five years thereafter, the city council shall provide for the preparation of a
general codification of all city ordinances and resolutions having the force and effect
of law. The general codification shall be adopted by the council by ordinance and
shall be printed promptly in bound or loose leaf form, together with this charter and
any amendments thereto, pertinent provisions of the constitution and other laws of
the State of Texas, and such code of technical regulations and other rules and
regulations as the council may specify. This compilation shall be known and cited
officially as "The Code of the City of Plainview, Texas." Copies ofthe code shall be
furnished to city officers, placed in libraries and public offices for free public
reference and made available for purchase by the public at actual cost to the City.
     (c) Printing of Ordinances and Resolutions. The city council shall cause each
ordinance and resolution having the force and effect of law and each amendment to
this charter to be printed promptly following its adoption, and the printed ordinances,
resolutions, and charter amendments shall be distributed or sold to the public at
actual cost to the City. Following publication of the first Code of the City of
Plainview, Texas and at all times thereafter, the ordinances, resolutions, and charter
amendments shall be printed in substantially the same style as the code currently in
effect and shall be suitable in form for integration therein. The council shall make
such further arrangements as it deems desirable with respect to reproduction and
distribution of any current changes in or additions to the provisions of the constitution

                                           7
                                 CmDIPU/IWIIWCMRTIR

and other laws of the State of Texas, or the codes of technical regulations and other
rules and regulations included in the code.

Section 2.17. Training.
   The city council, by ordinance, shall establish minimum training and continuing
education requirements for city council, and shall establish penalties for not
complying with those requirements, including removal from office.

                                     Article Ill
                                  CITY MANAGER

Section 3.01. Appointment and Qualifications.
    The Mayor and City Council by five (5) affirmative votes shall appoint a city
manager for an indefinite term and fix the manger's compensation. The city
manager shall be appointed solely on the basis of executive and administrative
qualifications. The manager need not be a resident of the city or state at the time of
appointment, but must secure and maintain permanent residency within the City
within six (6).months of his/her initial employment. Failure to comply with residency
requirement will result in termination without severance pay. The City Council may
offer a contract to the City Manager, but said contract shall never exceed three (3)
years.

Section 3.02. Removal.
     The city manager may be suspended by a resolution approved by five (5)
affirmative votes of the Mayor and City Council which shall set forth the reasons for
suspension and proposed removal. A copy of such resolution shall be served
immediately upon the city manager. The city manager shall have fifteen (15) days in
which to reply thereto in writing, and upon request, shall be afforded a public
hearing, which shall occur not earlier than ten (10) days nor later than fifteen (15)
days after such hearing is requested. After the public hearing, if requested, and after
full consideration, the city council by a majority vote of its total membership may
adopt a final resolution of removal. The city manager shall continue to receive full
salary until the effective date of a final resolution of removal. The City Manager is an
at-will employee.

Section 3.03. Acting City Manager.
    By letter filed with the city secretary, the mayor and city council shall designate a
city officer or employee to exercise the powers and perform the duties of city
manager during the manager's temporary absence or disability. The mayor and city
council may revoke s.uch designation at any time and appoint another officer of the
city to serve until the city manager returns.

Section 3.04. Powers and Duties of the City Manager.

                                           8
                                   CITTIIPU/RIEIICHA6TEI/

    The city manager shall be the chief administrative officer of the city, responsible
to the Council for the administration of all city affairs placed in the manager's charge
by or under this charter. The city manager shall:
    {1) Appoint and, when necessary for the good of the service, suspend or remove
all city employees and appointive administrative officers provided for by or under this
charter, except as otherwise provided for by law, this charter or personnel rules
adopted pursuant to this charter. Director appointments shall be approved by the
city council before said director assumes his/her official duties. The city manager
may authorize any administrative officer subject to the manager's direction and
supervision to exercise these powers with respect to subordinates in that officer's
department, office or agency;
     {2) Direct and supervise the administration of all departments, offices, and
agencies of the city, except as otherwise provided by this charter or by law;
     {3) Attend all city council meetings. The city manager shall have the right to take
 part in discussion but shall not have a vote;
     {4) See that all laws, provisions of this charter and acts of the city council, subject
to enforcement by the city manager or by officers subject to the city manager's
 direction and supervision, are faithfully executed;
     {5) Submit the initial annual budget and capital program to the city council;
     {6) Submit to the city council and make available to the public a complete report
 on the finances and administrative activities of the city as of the end of each fiscal
 year;
     {7) Make such other reports as the city council may require concerning the
 operations of city departments, offices, and agencies subject to the city manager's
 direction and supervision;
     {8) Keep the city council fully advised as to the financial condition and future
 needs of the city;
     {9) Make recommendations to the city council concerning the affairs of the city;
     {1 0) Provide staff support services for the mayor and councilmembers; and
     {11) Perform such other duties as are specified in this charter or may be required
 by the city council.

                                 Article IV
                    DEPARTMENTS, OFFICES, AND AGENCIES

Section 4.01. General Provisions.
    {a) Creation of Departments. The city council may establish city departments,
offices, or agencies in addition to those created by this charter and may prescribe
the functions of all departments, offices, and agencies, except that no function
assigned by this charter to a particular department, office or agency may be
discontinued or, unless this charter specifically so provides, assigned to any other.
    {b) Direction by City Manager. All departments, offices, and agencies under the
direction and supervision of the city manager shall be administered by an officer

                                             9
  appointed by and subject to the direction and supervision of the manager. With the
  consent of the city council, the city manager may serve as the head of one or more
, such departments, offices or agencies or may appoint one person as the head of two
  or more of them.

Section 4.02. Personnel System.
   (a) At-will employer. The City of Plainview is an at-will employer.
   (b) Personnel policies. The city manager shall approve, and amend from
time to time, the personnel policies of the city.

Section 4.03. Legal Officer.
    There shall be a legal officer of the city appointed by the city council. The legal
officer shall serve as chief legal advisor to the council, the city manager, and all city
departments, offices, and agencies, shall represent the city in all legal proceedings
and shall perform any other duties prescribed by the charter or by ordinance. For
the purposes of this charter a legal officer is defined as an attorney who has been
duly licensed to practice law within the State of Texas whose title may be city
counselor, city attorney, corporation counsel, or municipal attorney. The legal officer
is an at will employee of the city council.

 Section 4.04. Municipal Court
    A municipal court judge shall be appointed by the city manager, subject to the
 approval of the city council, to serve a term of two years, but subject to removal by
 the city manager at any time.

                                    Article V
                             FINANCIAL PROCEDURES

 Section 5.01. Fiscal Year.
    The fiscal year of the city shall begin on the first day of October and
 end on the last day of September.

 Section 5.02. Submission of Initial Budget and Budget Message.
    On or before the first day of July of each year, the city manager shall submit to
 the city council an initial budget for the ensuing fiscal year and an accompanying
 message.

 Section 5.03. Budget Message.
     The city manager's message shall explain the budget both in fiscal terms and in
 terms of the work programs. It shall outline the proposed financial policies of the city
 for the ensuing fiscal year, describe the important features of the budget, indicate
 any major changes from the current year in financial policies, expenditures, and
 revenues together with the reasons for such changes, summarize the city's debt

                                           10
                                 CmDFPU/-EWCIIMTBI

position and include such other material as the city manager deems desirable.

Section 5.04. Budget.
    The budget shall provide a complete financial plan of all city funds and activities
for the ensuing fiscal year and, except as required by law or this charter, shall be in
such form as the city manager deems desirable or the city council may require. The
budget shall begin with a clear, general summary of its contents, shall show in detail
all estimated income, indicating the proposed property tax levy, and all proposed
expenditures, including debt service, for the ensuing fiscal year, and shall be so
arranged as to show comparative figures for actual and estimated income and
expenditures of the current fiscal year and actual income and expenditures of the
preceding fiscal year. It shall indicate in separate sections:
    (1) The proposed goals and objectives and expenditures for current operations
during the ensuing fiscal year, detailed for each fund by organizational unit, and
program, purpose, or activity, and the method of financing such expenditures.
     (2) Proposed capital expenditures during the ensuing fiscal year, detailed for
each fund by organizational unit when practicable, and the proposed method of
financing each such capital expenditure; and
     (3) The anticipated income and expense and profit and loss for the ensuing
 year for each utility or other enterprise fund operated by the city.

    For any fund, the total of proposed expenditures shall not exceed the total of
estimated income plus carried forward fund balance, exclusive of reserves.

Section 5.05. City Council Action on Budget.
   (a) Notice and Hearing. The city council shall publish in one or more
newspapers of general circulation in the city the general summary of the budget and
a notice stating:
        (1) The times and places where copies of the message and budget are
available for inspection by the public; and
        (2) The time and place, not less than two weeks after such publication, for a
public hearing on the budget.
   (b) Amendment Before Adoption. After public hearing, the city council may
adopt the budget with or without amendment. In amending the budget, it may add or
increase programs or amounts and may delete or decrease any programs and
amounts, except expenditures required by law or for debt service or for an estimated
cash deficit, provided that no amendment to the budget shall increase the authorized
expenditures to an amount greater than total estimated income plus carried forward
fund balance, exclusive of reserves.
    (c) Adoption. The city council shall adopt the budget on or before the last day of
the month of the fiscal year currently ending. If it fails to adopt the budget by this
date, the budget proposed by the city manager shall go into effect.


                                           11
Section 5.06. Appropriation and Revenue Ordinances.
   To implement the adopted budget, the city council shall adopt, prior to
the beginning of the ensuing fiscal year:
   (a) an appropriation ordinance making appropriations by department or major
       organizational unit and authorizing a single appropriation for each program.
   (b) a tax levy ordinance authorizing the property tax levy or levies and setting
       the tax rate or rates; and
   (c) any other ordinances required to authorize new revenues or to amend the
rates or other features of existing taxes or other revenue sources.

  Section 5.07. Amendments after Adoption.
      (a) Supplemental Appropriations. If during the fiscal year the city manager
  certifies that there are available for appropriation revenues in excess of those
  estimated in the budget, the city council by ordinance may make supplemental
  appropriations for the year up to the amount of such excess.
      (b) Emergency Appropriations. To meet a public emergency affecting life,
  health, property, or the public peace, the city council may make emergency
  appropriations. Such appropriations may be made by emergency ordinance in
  accordance with the provision of 3 2.11. To the extent that there are no available
  unappropriated revenues or a sufficient fund balance to meet such appropriations,
  the council may, by such emergency ordinance, authorize the issuance of
  emergency notes, which may be renewed from time to time, but the emergency
  notes and renewals of any fiscal year shall be paid not later than the last day of the
  fiscal year next succeeding that in which the emergency appropriation was made.
      (c) Reduction of Appropriations. If at any time during the fiscal year it appears
  probable to the city manager that the revenues or fund balances available will be
  insufficient to finance the expenditures for which appropriations have been
  authorized, the manager shall report to the city council without delay, indicating the
  estimated amount of the deficit, any remedial action taken by the manager and
  recommendations as to any other steps to be taken. The council shall then take
  such further action as it deems necessary to prevent or reduce any deficit and, for
  that purpose, it may by ordinance reduce one or more appropriations.
       (d) Transfer of Appropriations. At any time during the fiscal year, the city
  council may by resolution transfer part or all of the unencumbered appropriation
  balance from one department or major organizational unit to the appropriation for
  other departments or major organizational units. The manager may transfer part or
  all of any unencumbered appropriation balances among programs within a
  department or organizational unit and shall report such transfers to the council in
  writing in a timely manner.
       (e) Limitations; Effective Date. No appropriation for debt service may be
   reduced or transferred, and no appropriation may be reduced below any amount
   required by law to be appropriated or by more than the amount of the unencumbered
' balance thereof. The aggregate debt of the City of Plainview shall not exceed five

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                                 C/TTIFPU/IBEWC/118TIR

percent (5%) of the aggregate ad valorem taxable value of the City of Plainview as
ascertained by the tax assessor. No issuance of Certificates of Obligation or other
debts, however designated, which are payable or guaranteed with tax revenue from
any source shall exceed two percent (2%) of the aggregate ad valorem taxable value
of the City as ascertained by the tax assessor, without voter approval. The
supplemental and emergency appropriations and reduction or transfer or
appropriations authorized by this section may be made effective immediately upon
adoption.

Section 5.08. Lapse of Appropriations.
   Every appropriation, except an appropriation for a capital expenditure, shall
lapse at the close of the fiscal year to the extent that it has not been expended or
encumbered. An appropriation for a capital expenditure shall continue in force until
expended, revised, or repealed. The purpose of any such appropriation shall be
deemed abandoned if three years pass without any disbursement from or
encumbrance of the appropriation.

Section 5.09. Administration of the Budget.
   The city council shall provide by ordinance the procedures for administering the
budget.

Section 5.1 0. Overspending of Appropriations Prohibited.
    No payment shall be made or obligation incurred against any allotment or
appropriation except in accordance with appropriations duly made and unless the
city manager or the manager's designee first certifies that there is a sufficient
unencumbered balance in such allotment or appropriation and that sufficient funds
therefrom are or will be available to cover the claim or meet the obligation when it
becomes due and payable. Any authorization of payment or incurring of obligation in
violation of the provisions of this charter shall be void and any payment so made
illegal. A violation of this provision shall be cause for removal of any officer who
knowingly authorized or made such payment or incurred such obligation. Such
officer may also be liable to the city for any amount so paid. Except where prohibited
by law, however, nothing in this charter shall be construed to prevent the making or
authorizing of payments or making of contracts from capital improvements to be
financed wholly or partly by the issuance of bonds or to prevent the making of any
contract or lease providing for payments beyond the end of the fiscal year, but only if
such action is made or approved by ordinance.

Section 5.11. Capital Program.
    (a) Submission to City Council. The city manager shall prepare and submit to
the city council a five-year capital program no later than the final date for submission
of the budget.
    (b) Contents. The capital program shall include:

                                          13
                                 CmiiFPU/RIIWCIIAITEB

       (1) A clear general summary of its contents;
       (2) A list of all capital improvements and other capital expenditures which are
proposed to be undertaken during the five fiscal years next ensuing, with appropriate
supporting information as to the necessity for each;
       (3) Cost estimates and recommended time schedules for each improvement
or other capital expenditure;
       (4) Method of financing, upon which each capital expenditure is to be reliant;
and
       (5) The estimated annual cost of operating and maintaining the facilities to be
constructed or acquired.

   The above shall be revised and extended each year with regard to capital
improvements still pending or in process of construction or acquisition.

Section 5.12. City Council Action on Capital Program.
   (a) Notice and Hearing. The city council shall publish, in one or more
newspapers of general circulation in the city, the general summary of the capital
program and a notice stating:
       ( 1) The times and places where copies of the capital program are available for
inspection by the public; and
       (2) The time and place, not less then two weeks after such publication, for a
public hearing on the capital program.
   (b) Adoption. The city council by resolution shall adopt the capital program with
or without amendment after the public hearing and on or before the last day of the
month of the current fiscal year.

Section 5.13. Public Records.
   Copies of the budget, capital program, and appropriation and revenue ordinances
shall be public record and shall be made available to the public at suitable places in
the city.

Section 5.14. Retirement and/or Pension Funds
   The City of Plainview shall not be financially responsible for City of Plainview
and/or employee retirement contributions lost by a fund which is not directly
managed by the City Council.

                                     Article VI
                                    ELECTIONS

Section 6.01. City Elections.
  (a) Regular Elections. The regular city election shall be held in May on even
numbered years.
  (b) Registered Voter Defined. All citizens legally registered under the

                                          14
                                   Cmiii'UIIWIIWCIIA8Tlll

 constitution and laws of the State of Texas to vote in the city shall be registered
 voters of the city within the meaning of this charter.
     (c) Conduct of Elections. The provision of the general election laws of the
 State of Texas shall apply to the elections held under this charter. All elections
 provided for by the charter shall be conducted by the city secretary. Candidates
 shall run for office without party designation. For the conduct of city elections, for the
 prevention of fraud in such elections and for the recount of ballots in cases of doubt
 or fraud, the city council shall adopt ordinances consistent with law and this charter,
 and the city secretary may adopt further regulations consistent with law and this
 charter and the ordinances of the council. Such ordinances and regulations
 pertaining to elections shall be publicized in the manner of city ordinances generally.

 Section 6.02. Council Districts; Adjustments of Districts.
      (a) Number of Districts. There shall be seven (7) city council districts.
      (b) Districting Commission; Composition; Appointment; Terms; Vacancies;
 Compensation.
          (1) There shall be a districting commission consisting of nine (9) members.
 The City Council shall appoint six (6) members. These six (6) members shall, with
 the affirmative vote of at least four (4), choose three (3) more members. The
  commission shall select is own chairperson.
          (2) No member of the commission shall be employed by the city or hold any
  other elected or appointed position in the city.
          (3) The City Council shall appoint the commission no later than one year and
  five months before the first general election of the city council after each federal
  decennial census. The commission's terms shall end upon adoption of a districting
  plan, as set forth in section 3 6.02(c).
          (4) In the event of a vacancy on the Commission by death, resignation or
  otherwise, the City Council shall appoint a new member to serve the balance of the
  term remaining.
          (5) No member of the districting commission shall be removed from office by
  the City Council except for cause and upon notice and hearing.
          (6) The members of the commission shall serve without compensation except
  that each member shall be allowed actual and necessary expenses to be audited in
  the same manner as other city charges.
          (7) The commission may hire or contract for necessary staff assistance and
  may require agencies of city government to provide technical assistance. The
  commission shall have a budget as provided by the city council.
       (c) Powers and Duties of the Commission; Hearing, Submissions and
  Approval of Plan.
          (1) Following decennial census, the commission shall consult the city council
_ and shall prepare a plan for dividing the city into districts for the election of
  councilmembers. In preparing the plan, the commission shall be guided by the
  criteria set forth in 3 6.02(d). The report on the plan shall include a map and

                                             15
                                   /JITYDFPU/IMIIICI/AITII

description of districts recommended.
        (2) The commission shall hold one or more public hearings not less than one
month before it submits the plan to the City Council. The commission shall make its
plan available to the public for inspection and comment not less than one month
before its public hearing.
         (3) The commission shall submit its plan to the City Council not less than one
year before the first general election of the city council after each decennial census.
         (4) The plan shall be deemed adopted by the City Council unless disapproved
within three weeks by the vote of the majority of all members of the city council. If
the city council fails to adopt the plan, it shall return the plan to the commission with
its objections, and with the objections of individual members of the council.
         (5) Upon rejection of its plan, the commission shall prepare a revised plan and
shall submit such revised plan to the city council no later than nine (9) months before
the first general election of the city council after such decennial census. Such
revised plan shall be deemed adopted by the city council unless disapproved within
two weeks by the vote of two-thirds (2/3) of all the members of the city council, or
unless by two-thirds (2/3) of all its members the city council votes to file a petition in
the District Court, Hale County, Texas, for a determination that the plan fails to meet
the requirements of this charter. The city council shall file its petition no laterthan ten
(1 0) days after its disapproval of the plan. Upon a final determination upon appeal, if
any, the plan shall be deemed adopted by the city council and the commission shall
deliver the plan to the city secretary. The plan delivered to the city secretary shall
 include a map and description of the districts.
          (6) If in any year population figures are not available at least one year and five
 months before the first general election following the decennial census, the City
 Council may by ordinance shorten the time period provided for districting
 commission action in subsection (2),(3),(4), and (5) of this section.
     (d) Districting Plan; Criteria. In preparation of its plan for dividing the city into
 districts for the election of council members, the commission shall apply the following
 criteria which, to the extent practicable, shall be applied and given priority in the
 order in which they are herein set forth.
          (1) Districts shall be equal in population except where deviation from equality
 result from the application of the provisions hereinafter set forth, but no such
 deviation may exceed five percent (5%) of the average population for all city council
 districts according to the figures available from the most recent census.
          (2) No city block shall be divided in the formation of districts.
     (e) Effect of Enactment. The new city council districts and boundaries as of the
  date of enactment shall supersede previous council districts and boundaries for all
  purposes of the next regular city election, including nominations. The new districts
 and boundaries shall supersede previous districts and boundaries for all other
  purposes as of the date on which all councilmembers elected at that regular city
  election take office.


                                              16
                                    Article VII
                               GENERAL PROVISIONS

Section 7 .01. Conflicts of Interest; Ethics
    Conflicts of Interest. The use of public office for private gain is prohibited. The
city council shall implement this prohibition by ordinance. Regulations to this end
shall include but are not limited to: acting in an official capacity on matters in which
the official has a private financial interest clearly separate from that of the general
public; the acceptance of gifts and other things of value; acting in a private capacity
on matters dealt with as a public official; the use of confidential information; and
appearances by city officials before other city agencies on behalf of private interests.
 This ordinance shall provide for reasonable public disclosure of finances by officials
with major decision making authority over monetary expenditures and contractual
matters and, insofar as permissible under state law, shall provide for penalties.

Section 7.02. Prohibitions.
    (a) Activities Prohibited.
        (1) No person shall be appointed to or removed from, or in any way favored
or discriminated against with respect to any city position or appointive city
administrative office because of race, gender, age, disability, religion, country of
origin or political affiliation.
        (2) No.person shall willfully make any false statement, certificate, mark, rating
or report in regard to any test, certification or appointment under the provisions of
this charter or the rules and regulations made thereunder, or in any manner commit
or attempt to commit any fraud preventing the impartial execution of such provisions,
rules and regulations.
         (3) No person who seeks appointment or promotion with respect to any city
position or appointive city administrative office shall directly or indirectly give, render
or pay any money, service or other valuable thing to any person for or in connection
with her or his test, appointment, proposed appointment, promotion or proposed
promotion.
         (4) No city employee shall knowingly or willfully make, solicit or receive any
contribution to the campaign funds of any political party or committee to be used in a
city election or to campaign funds to be used in support of or opposition to any
candidate for election to city office or city ballot issue. Further, no city employee
shall knowingly or willfully participate in any aspect of any political campaign on
behalf of or opposition to any candidate for city office. This section shall not be
construed to limit any person's right to exercise rights as a citizen to express
opinions or to cast a vote nor shall it be construed to prohibit any person from active
participation in political campaigns at other level of government.
     (b) Penalties. Any person found guilty of a violation of this section shall be
 ineligible for a period of five (5) years following such finding to hold any city office or


                                            17
position and, if an officer or employee of the city, shall immediately forfeit her or his
office or position. The city council shall establish by ordinance such further penalties
as it may deem appropriate.
Section 7.03. Annexation
    The boundaries and limits of the City of Plainview may be hereafter changed by
annexation or disannexation in the manner provided in Chapter 43 of the Texas
Local Government Code.

                                   Article VIII
                              CHARTER AMENDMENT

Section 8.01. Proposal of Amendment.
   Amendments to this charter may be framed and proposed in the manner provided
bylaw.

                                 Article IX
                    TRANSITION/SEVERABILITY PROVISION

Section 9.01. Officers and Employees.
    Rights and Privileges Preserved. Nothing in this charter except as otherwise
provided shall affect or impair the rights or privileges of persons who are city officers
or employees at the time of its adoption.

Section 9.02. State and Municipal Laws.
    In General. All city ordinances, resolutions, orders, and regulations which are in
force when this charter becomes fully effective are repealed to the extent that they
are inconsistent or interfere with the effective operation of this charter or of
ordinances or resolutions adopted pursuant thereto. To the extent that the
constitution and laws of the State of Texas permit, all laws relating to or affecting this
city or its agencies, officers or employees which are in force when this charter
becomes fully effective are superseded to the extent that they are inconsistent or
interfere with the effective operation of this charter or of ordinances or resolutions
adopted pursuant thereto.

Section 9.03. Schedule.
   (a) First Election. At the time of its adoption, this charter shall be in effect to the
extent necessary in order that the first election of members of the city council may be
conducted in accordance with the provisions of this charter.

Section 9.04. Severability.
    If any provision of this charter is held invalid, the other provision of the charter
shall not be affected thereby. If the application of the charter or any of its provisions
to any person or circumstance is held invalid, the application of the charter and its

                                            18
                                  Dm6FI'UIIWIEWC/161Tll

provisions to other persons or circumstances shall not be affected thereby.
                                     Article X
                      INITIATIVE, REFERENDUM, RECALL

Section 10.01. General Authority.
    The powers of initiative and referendum are hereby reserved to the electors of
the city. The provisions of the election law of the State of Texas, as they currently
exist or may hereafter be amended or superseded, shall govern the exercise of the
powers of initiative and referendum under this charter.
    A. Initiative. The qualified voters of the city shall have the power to propose
ordinances to the city council and, if the council fails to adopt an ordinance so
proposed without any change in substance, to adopt or reject said ordinance at a city
election, provided that such power shall not extend to the budget, or capital program
or any ordinance relating to appropriation of money, levy of taxes, user fees or
salaries of city officers or employees.
Such initiative power may be used to enact a new ordinance or to repeal or amend
sections of an existing ordinance.
    B. Ref~rendum: The qualified voters of the city shall have the power to require
reconsideration by the city council of any adopted ordinance and, if the council fails
to repeal any ordinance so reconsidered, to approve or reject it at a city election,
 provided that such power shall not extend to the budget or capital program or any
 properly enacted emergency ordinance, ordinance relating to appropriation of money
 or levying of taxes or ordinance relating to the control of armed or violent
 insurrection, revolt, rebellion or riot.

Section 10.02. Initiation of Proceedings; Petitioners' Committee; Affidavit.
     Any ten (1 0) qualified voters may begin initiative or referendum proceedings by
filing with the city secretary an affidavit stating they constitute the petitioners'
committee and will be responsible for circulating the petition and filing it in proper
form; stating their names and addresses and specifying the address to which all
notices to the committee are to be sent, and setting out in full the proposed initiative
ordinance or the ordinance sought to be reconsidered.
Immediately after the affidavit ofthe petitioners' committee is filed, the city secretary
shall issue the appropriate petition blanks to the petitioners' committee.
After the affidavit of the petitioners' committee has been filed, the ordinance sought
to be amended or repealed shall not be repealed, or amended or re-enacted by the
city council unless:
     A. The action taken by the city council is that which the petition requests, or
     B. The petition has not been filed within the prescribed time limit, or
     C. There is a final determination of the insufficiency of the petition, or
     D. The petition is withdrawn by the petitioners' committees, or
     E. One year has elapsed since the city council or voter action has been taken on
the petition, or

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                                   CmDFI'UIRIEWCIIAITB/

   F. The ordinance sought to be amended or repealed relates to the control of
insurrection or riot.

Section 10.03. Petitions.
    (a) Number of signatures. Initiative and referendum petitions must be signed
by currently qualified voters of the city equal in number to at least ten percent (1 0%)
of the current registered voters.
    (b) Form and Content: All papers of petition shall be uniform in size and style
and shall be assembled as one instrument for filing. To be certified, each signature
shall be the same as the name of a voter appearing on the current certified list of
voter registrations, shall have been personally signed by such voter in ink, and shall
be followed by the address of the person signing. Petitions shall contain or have
attached thereto throughout their circulation the full text of the ordinance proposed or
sought to be reconsidered.
    (c) Affidavit of Circulator: When filed, each paper of the petition shall have
attached to it an affidavit executed by the circulator thereof stating that she/he
personally circulated the paper, the number of signatures thereon, that all the
signatures were affixed in her/his presence, that she/he believes them to be the
genuine signatures of the persons whose names they purport to be and that each
signer had an opportunity before signing to read the full text of the ordinance
proposed or sought to be reconsidered.
    (d) Time for Filing Petitions: Referendum petitions must be initiated within
thirty (30) days after adoption by the city council of the ordinance sought to be
reconsidered. Initiative petitions must be filed within thirty (30) days after issuance of
the appropriate petition blanks to the petitioners' committee. Additional time as
specified in Section 10.04(e}, shall be allowed for amending petitions.

Section 10.04. Determination of Sufficiency.
      (a) Certificate of city secretary: Within ten (1 0) working days after the petition
is filed, the city secretary shall complete a certificate as to its sufficiency, specifying,
if it is insufficient, the particulars wherein it is defective and shall immediately upon
completion of certification send a copy of the certificate to the petitioners' committee
by registered mail.
      (b) Sufficient Petition, Final Determination: If the petition is certified sufficient,
the city secretary shall present the certificate to the city council at the next regularly
scheduled council meeting and the certificate shall then be a final determination as
to the sufficiency of the petition.
      (c) Insufficient Petition, Final Determination: If a petition is certified
insufficient, and the petitioners' committee does not elect to amend or request
council review under sub-sections (d) and (e) of this section within the time required,
the city secretary shall present a certificate to the city council at the next regularly
scheduled council meeting which shall be a final determination of the sufficiency of
the petition.

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                                  cmDFPU/B/EIICIIA//116

    (d) Insufficient Petition, Appeal: If a petition has been certified insufficient and
the petitioners• committee does not file notice of intention to amend it as in Section
10.04(e), the committee may, within two working days after receiving the copy of
such certificate, file a request that it be reviewed by the city council. The city council
shall review the certificate at its next meeting following the filing of such request and
approve or disapprove it, and the Council•s determination shall then be a final
determination as to the sufficiency of the petition.
    (e) Insufficient Petition, Amending: A petition certified insufficient for lack of
required number of valid signatures may be amended once if the petitioners•
committee files a notice of intention to amend it with the city secretary within two (2)
working days after receiving the copy of her/his certificate, and files a supplementary
petition with additional names within two weeks after receiving the copy of such
certificate. Such supplementary petition shall comply with the requirements of
 Sections 10.03 (b) and (c).
Within five (5) working days after an amended petition is filed, the city secretary shall
 complete a certificate as to the sufficiency of the petition as amended and shall
 within twenty-four (24) hours send a copy of such certificate to the petitioners•
 committee by registered mail as in the case of an original petition. The final
 determination as to the sufficiency of an amended petition shall be determined in the
 same manner as prescribed for original petitions in Sections 10.04 (b), (c) and (d),
 and no petition, once amended, may be amended again.
     (f) Court Review; New Petition: A final determination as to the sufficiency of a
 petition shall be subject to review in a county court of record and higher. A final
 determinatiqn of insufficiency, even if sustained upon court review, shall not
 prejudice the filing of a new petition of the same purpose.

Section 10.05. Referendum Petitions; Suspension of Effect of Ordinance.
    When a referendum petition is filed with the city secretary, the ordinance sought
to be reconsidered shall be suspended from taking effect. Such suspension shall
terminate when:
    (a) there is a final determination of insufficiency of the petition, or
    (b) the petitioner•s committee withdraws the petition, or
    (c) the council repeals the ordinance, or
    (d) the vote of the people in a referendum election determines whether the
ordinance sought to be repealed is repealed or is sustained and the election results
are certified by the election officials.
    All action previously taken under such ordinance or resolution shall be
suspended and its legality or validity determined by the final disposition of the
referendum petition.

Section 10.06. Action on Petitions.
     (a) Action by Council: The city council shall promptly consider the proposed
initiative ordinance in the manner prescribed for enacting ordinances or reconsider

                                            21
the referred ordinance by voting its repeal. Within sixty (60) days after the date the
initiative or referendum petition has been finally determined sufficient the city council
shall either (1) adopt a proposed initiative ordinance without any change in
substance, or (2) repeal a referred ordinance, or (3) call an election on the proposed
or referred ordinance, said election to be held not later than thirty (30) days from the
date called.
     (b) Submission to Voters: The vote of the city on a proposed or referred
ordinance shall be held not later than thirty (30) days from the date called by council,
except that when a regular city election is to be held within one hundred twenty (120)
days, but not less than thirty (30) days, after the final council vote, the vote on the
ordinance shall be held at the same time as the regular city election.
     Copies of the proposed or referred ordinance shall be made available at the polls
 and shall also be made available at the city secretary•s office for fifteen (15) days
 immediately preceding the election and shall be posted atthe regular posting places
for fifteen (15) days immediately preceding the election.
     (c) Withdrawal of Petitions: An initiative or referendum petition may be
 withdrawn at any time prior to the twentieth (2oth) day preceding the day scheduled
 for a vote of the city by filing with the city secretary a request for withdrawal signed
 by at least six members of the petitioners• committee. Upon filing of such request
 the petition shall have no further force or effect and all proceedings thereon shall be
 terminated.

Section 10.07. Results of Election.
    (a) Initiative: If a majority of the qualified electors voting on a proposed initiative
ordinance vote in its favor, it shall be considered adopted upon certification of the
election results and shall be treated in all respects in the same manner as
ordinances of the same kind adopted by the city council. If conflicting ordinances
are approved at the same election, the one receiving the greatest number of
affirmative votes shall prevail to the extent of such conflict.
    (b) Limitation of Council Repeal: The city council may not repeal or amend
the initiated ordinance for one (1) year after the effective date and then only by the
affirmative vote of five (5) members of the city council.
     (c) Referendum: If a majority of the qualified electors voting on a referred
ordinance vote against it, it shall be considered repealed upon certification of the
election results.

Section 10.08. Power of Recall.
   The qualified voters shall have the power to recall any elected official of the city
on grounds of incompetency, noncompliance with this charter, misconduct or
malfeasance in office. Such power shall be exercised by filing with the city secretary
a petition, signed by currently qualified voters of the city equal in number to at least
twenty percent (20%) of the total number of qualified voters registered to vote at the
last regular city election, per district effected, demanding the removal of such elected

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                                    CmDFPU/ntEWCMITEB

official. The petition shall be signed and verified in the manner required for an
initiative petition.

Section 10.09. Recall Election.
     The provisions regulating initiation, certification, amendment and withdrawal of
initiative petitions shall apply to recall petitions. If the petition is certified by the city
secretary to be sufficient, the city council shall order an election forthwith to
determine whether such officer shall be recalled.

Section 10.10. Results of Recall Election.
    If a majority of the votes cast at a recall election shall be against removal of the
elected official named on the ballot, she/he shall continue in office. If the majority of
the votes cast at the election are for the removal of the elected official named on the
ballot, the city council shall immediately declare her/his office vacant and such
vacancy shall be filled in accordance with the provisions of this charter for the filling
of vacancies. An elected official thus removed shall not be a candidate to succeed
herself/himself.

Section 10.11. Limitation on Recall.
   No elected official shall be subjected to more than one (1) recall in a twelve (12)
month period.
   The elected official whose removal is sought may, within five (5) days after such
recall petition has been presented to the city council, request that a public hearing be
held to permit her/him to present facts pertinent to the charges specified in the recall
petition, In this event, the city council shall order such public hearing to be held, not
less than five (5) days or more than fifteen (15) days after receiving such request for
a public hearing.

Section 10.12. Failure of City Council to Call an Election.
    In case all of the requirements of this charter shall have been met and the city
council fails or refuses to receive the recall petition, or order such recall election, or
discharge other duties imposed upon said city council by the provisions of this
charter with reference to such recall, then the County Judge of Hale County, Texas,
shall discharge any such duties herein provided to be discharged by the city
secretary or by the city council. In addition, any qualified voter in the city may seek
judicial relief in the District Court of Hale County, Texas, to have any of the
provisions of this charter pertaining to recall carried out by the proper official.




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APPENDIX 6
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                                                        THE TEXAS CONSTITUTION

                                          ARTICLE 11. MUNICIPAL CORPORATIONS

       Sec. 1.  COUNTIES AS LEGAL SUBDIVISIONS.  The several counties of 
  this State are hereby recognized as legal subdivisions of the State.
   
       Sec. 2.  JAILS, COURT­HOUSES, BRIDGES, AND ROADS.  The 
  construction of jails, court­houses and bridges and the laying out, 
  construction and repairing of county roads shall be provided for by 
  general laws.  

  (Amended Nov. 2, 1999.)  (TEMPORARY TRANSITION PROVISIONS for Sec. 2: 
  See Appendix, Note 1.)


       Sec. 3.  SUBSCRIPTIONS TO CORPORATE CAPITAL; DONATIONS; LOAN OF 
  CREDIT.  No county, city, or other municipal corporation shall 
  hereafter become a subscriber to the capital of any private 
  corporation or association, or make any appropriation or donation to 
  the same, or in anywise loan its credit; but this shall not be 
  construed to in any way affect any obligation heretofore undertaken 
  pursuant to law or to prevent a county, city, or other municipal 
  corporation from investing its funds as authorized by law.  

  (Amended Nov. 7, 1989.)


       Sec. 4.  CITIES AND TOWNS WITH POPULATION OF 5,000 OR LESS; 
  CHARTERED BY GENERAL LAW; TAXES; FINES, FORFEITURES, AND PENALTIES.  
  Cities and towns having a population of five thousand or less may be 
  chartered alone by general law.  They may levy, assess and collect 
  such taxes as may be authorized by law, but no tax for any purpose 
  shall ever be lawful for any one year which shall exceed one and one­
  half per cent of the taxable property of such city; and all taxes 
  shall be collectible only in current money, and all licenses and 
  occupation taxes levied, and all fines, forfeitures and penalties 
  accruing to said cities and towns shall be collectible only in current 
  money.  

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  (Amended Aug. 3, 1909, and Nov. 2, 1920.)


       Sec. 5.  CITIES OF MORE THAN 5,000 POPULATION; ADOPTION OR 
  AMENDMENT OF CHARTERS; TAXES; DEBT RESTRICTIONS.  (a)  Cities having 
  more than five thousand (5000) inhabitants may, by a majority vote of 
  the qualified voters of said city, at an election held for that 
  purpose, adopt or amend their charters.  If the number of inhabitants 
  of cities that have adopted or amended their charters under this 
  section is reduced to five thousand (5000) or fewer, the cities still 
  may amend their charters by a majority vote of the qualified voters of 
  said city at an election held for that purpose.  The adoption or 
  amendment of charters is subject to such limitations as may be 
  prescribed by the Legislature, and no charter or any ordinance passed 
  under said charter shall contain any provision inconsistent with the 
  Constitution of the State, or of the general laws enacted by the 
  Legislature of this State.  Said cities may levy, assess and collect 
  such taxes as may be authorized by law or by their charters; but no 
  tax for any purpose shall ever be lawful for any one year, which shall 
  exceed two and one­half per cent. of the taxable property of such 
  city, and no debt shall ever be created by any city, unless at the 
  same time provision be made to assess and collect annually a 
  sufficient sum to pay the interest thereon and creating a sinking fund 
  of at least two per cent. thereon, except as provided by Subsection 
  (b).  Furthermore, no city charter shall be altered, amended or 
  repealed oftener than every two years.
       (b)  To increase efficiency and effectiveness to the greatest 
  extent possible, the legislature may by general law authorize cities 
  to enter into interlocal contracts with other cities or counties 
  without meeting the assessment and sinking fund requirements under 
  Subsection (a).

  (Amended Aug. 3, 1909, Nov. 5, 1912, Nov. 5, 1991, and Nov. 8, 2011.)


             Sec. 6.  (Repealed Nov. 2, 1999.)  

  (TEMPORARY TRANSITION PROVISIONS for Sec. 6: See Appendix, Note 1.)


             Sec. 7.  COUNTIES AND CITIES ON GULF OF MEXICO; TAX FOR SEA 
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  WALLS, BREAKWATERS, AND SANITATION; BONDS; CONDEMNATION OF RIGHT OF 
  WAY.  (a)  All counties and cities bordering on the coast of the Gulf 
  of Mexico are hereby authorized upon a vote of the majority of the 
  qualified voters voting thereon at an election called for such purpose 
  to levy and collect such tax for construction of sea walls, 
  breakwaters, or sanitary purposes, as may now or may hereafter be 
  authorized by law, and may create a debt for such works and issue 
  bonds in evidence thereof.  But no debt for any purpose shall ever be 
  incurred in any manner by any city or county unless provision is made, 
  at the time of creating the same, for levying and collecting a 
  sufficient tax to pay the interest thereon and provide at least two 
  per cent (2%) as a sinking fund, except as provided by Subsection (b); 
  and the condemnation of the right of way for the erection of such 
  works shall be fully provided for.
       (b)  To increase efficiency and effectiveness to the greatest 
  extent possible, the legislature may by general law authorize cities 
  or counties to enter into interlocal contracts with other cities or 
  counties without meeting the tax and sinking fund requirements under 
  Subsection (a).

  (Amended Nov. 8, 1932, Nov. 6, 1973, Nov. 6, 2001, and Nov. 8, 2011.)  
  (TEMPORARY TRANSITION PROVISION for Sec. 7: See Appendix, Note 3.)


             Sec. 8.  DONATION OF PORTION OF PUBLIC DOMAIN TO AID IN 
  CONSTRUCTION OF SEA WALLS OR BREAKWATERS.  The counties and cities on 
  the Gulf Coast being subject to calamitous overflows, and a very large 
  proportion of the general revenue being derived from those otherwise 
  prosperous localities, the Legislature is especially authorized to aid 
  by donation of such portion of the public domain as may be deemed 
  proper, and in such mode as may be provided by law, the construction 
  of sea walls, or breakwaters, such aid to be proportioned to the 
  extent and value of the works constructed, or to be constructed, in 
  any locality.
   
       Sec. 9.  PROPERTY EXEMPT FROM FORCED SALE AND FROM TAXATION.  The 
  property of counties, cities and towns, owned and held only for public 
  purposes, such as public buildings and the sites therefor, fire 
  engines and the furniture thereof, and all property used, or intended 
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  for extinguishing fires, public grounds and all other property devoted 
  exclusively to the use and benefit of the public shall be exempt from 
  forced sale and from taxation, provided, nothing herein shall prevent 
  the enforcement of the vendors lien, the mechanics or builders lien, 
  or other liens now existing.
   
             Sec. 10.  (Repealed Aug. 5, 1969.)
   
             Sec. 11.  TERM OF OFFICE EXCEEDING TWO YEARS IN HOME RULE AND 
  GENERAL LAW CITIES; VACANCIES.  (a) A Home Rule City may provide by 
  charter or charter amendment, and a city, town or village operating 
  under the general laws may provide by majority vote of the qualified 
  voters voting at an election called for that purpose, for a longer 
  term of office than two (2) years for its officers, either elective or 
  appointive, or both, but not to exceed four (4) years; provided, 
  however, that tenure under Civil Service shall not be affected hereby; 
  provided, however, that such officers, elective or appointive, are 
  subject to Section 65(b), Article XVI, of this Constitution, providing 
  for automatic resignation in certain circumstances, in the same manner 
  as a county or district officer to which that section applies.
       (b)  A municipality so providing a term exceeding two (2) years 
  but not exceeding four (4) years for any of its non­civil service 
  officers must elect all of the members of its governing body by 
  majority vote of the qualified voters in such municipality.
       (c)  Any vacancy or vacancies occurring on such governing body 
  shall not be filled by appointment but must be filled by majority vote 
  of the qualified voters at a special election called for such purpose 
  within one hundred and twenty (120) days after such vacancy or 
  vacancies occur except that the municipality may provide by charter or 
  charter amendment the procedure for filling a vacancy occurring on its 
  governing body for an unexpired term of 12 months or less.

  (Added Nov. 4, 1958; amended Nov. 6, 2001; Subsec. (b) amended and (c) 
  added Nov. 5, 2013.)  (TEMPORARY TRANSITION PROVISION for Sec. 11: See 
  Appendix, Note 3.)


       Sec. 12.  EXPENDITURES FOR RELOCATION OR REPLACEMENT OF 
  SANITATION SEWER OR WATER LATERALS ON PRIVATE PROPERTY.  The 
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  legislature by general law may authorize a city or town to expend 
  public funds for the relocation or replacement of sanitation sewer 
  laterals  or water laterals on private property if the relocation or 
  replacement is done in conjunction with or immediately following the 
  replacement or relocation of sanitation sewer mains or water mains 
  serving the property.  The law must authorize the city or town to 
  affix, with the consent of the owner of the private property, a lien 
  on the property for the cost of relocating or replacing the laterals 
  on the property and must provide that the cost shall be assessed 
  against the property with repayment by the property owner to be 
  amortized over a period not to exceed five years at a rate of interest 
  to be set as provided by the law.  The lien may not be enforced until 
  after five years have expired since the date the lien was affixed.  

  (Added Nov. 8, 1983; amended Nov. 5, 1985.)


             Sec. 13.  CLASSIFICATION OF MUNICIPAL FUNCTIONS.  (a) 
  Notwithstanding any other provision of this constitution, the 
  legislature may by law define for all purposes those functions of a 
  municipality that are to be considered governmental and those that are 
  proprietary, including reclassifying a function's classification 
  assigned under prior statute or common law.
       (b)  This section applies to laws enacted by the 70th 
  Legislature, Regular Session, 1987, and to all subsequent regular or 
  special sessions of the legislature.  

  (Added Nov. 3, 1987.)



                                           




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APPENDIX 7
CITY OF PLAINVIEW


PERSONNEL POLICY




              Incorporates all Personnel
              Policy Amendments through
              March 9, 2006
supervisor, director, and the City Manager is required for such leave. In an effort to encourage self-
development, training, and education, the City offers a tuition reimbursement program as an additional
benefit for regular full-time employees. Information and application forms for tuition reimbursement are
available in the Personnel Department.

       Section 9.8 Ernplovee Suugestions. Employees on the frontlines of City operations can detect
shortcomings and unforeseen problems when work theories and principles are put into practice. The City
encourages each employee to make suggestions which could improve any facet of municipal service or
working conditions.

        Section 9.9 Telephone.

        A. Telephone Technique. Employees are expected to use rules of everyday courtesy in using the
        telephone. Employees should always identify themselves and their department. If the inquiry has
        been misdirected, every reasonable effort should be made to direct the call to the proper person
        and department.

        B. Personal Calls. The City telephone is installed for business purposes, and personal calls
        should be kept to an absolute minimum. Long distance calls and personal communications that
        incur user charges should be placed on a collect basis or be charged directly to the employee's
        personal credit card. As warranted by special or emergency circumstances, an employee's
        supervisor may allow him/her to place a call on the City's telephone account. However,
        employees shall reimburse the City for the cost of any personal phone calls. Employees shall
        forward sufficient information on such calls (date, time, and number called) to the Finance
        Department so that said expense can be charged back to the responsible employee. Employees
        shall reimburse the City within seven (7) days of being notified of the expense.

        C. Cellular Services. Cellular telephones and cellular services may not be purchased for City use
        without prior approval of the City Manager. Requests for new cellular phones and services shall
        be submitted in writing and shall consider other less expensive means of communications. All
        purchases of cellular telephones and cellular service must be made through the telephone
        coordinator designated by the City Manager. No third party contracts will be authorized or paid
        by the City.

        D. Call-back. As a condition of employment, an employee may be required to have a home
        telephone. City employees may be subject to "call back" as determined by their supervisor.

        E. Monthly Reporting. Each month the Finance Department shall forward an itemized
        departmental phone service bill to the head of the department accountable. Each department head
        will review phone records and monitor for misuse and continued benefit to the City.


                                         PART X: DISCIPLINE

          Section I0.1 Basis for Discipline. Supervisors are charged with maintaining proper working
standards and discipline within their departments. The following list includes offenses which constitute
grounds for disciplinary action, up to and including dismissal. The list is not intended to be all inclusive
but is informational in nature. Ignorance of any official rule, regulation, or special order is not an excuse
for its violation.

        A. Absence without leave or excessive absenteeism.

        B. Bribery.



                   City of Plainview Personnel Policy - March 9, 2006 - Page 40
       C. Conviction of a felony, class A orB misdemeanor offense, or a crime of moral turpitude.

       D. Damaging, destroying, or wasting City property or supplies.

       E. Discourteous, offensive, or abusive language or conduct in the line of duty.

       F. Endangering or threatening to endanger another person.

       G. Failing to report an injury, accident, or damage to City property.

       H. Falsification, unauthorized disclosure, or improper use of official information.

       I. Habitual tardiness.

       J. Inciting, attempting to incite, or participating in a strike against the City.

       K. Incompetence, inefficiency, or negligence in the performance of duty.

       L. Insubordination.

       M. Misconduct.

       N. Participation in prohibited political activities.

       0. Possession of or being under the influence of drugs or alcohol while on duty.

       P. Theft or misuse of City property, funds, or services.

       Q. Unauthorized or improper use of official authority.

       R. Violation of any provision of the Plainview City Charter, Personnel Policy, or approved
       departmental policy.

        Section I0.2 Progressive Discipline. The City endorses a policy of progressive discipline to
provide employees with notice of deficiencies and opportunities to improve. Progressive discipline steps
may include, but are not limited to, the following:

       A. Verbal Warning. First offenses and minor violations may result in the supervisor speaking
       with the employee.

       B. Written Reprimand. Repeat offenses and more serious violations may result in the supervisor
       formally reprimanding the employee in writing.

       C. Suspension With or Without Pay. Depending on the circumstances, an employee may be
       suspended by his/her supervisor with or without pay for up to thirty (30) days or longer. The
       number of days an employee is suspended will depend on the seriousness of the offense.

       D. Reduction in pay. classification, or both. The gravity of certain offenses may be best
       addressed by demotions and/or reductions in pay. Reductions shall be made upon supervisor
       recommendation with City Manager and director approval.

       E. Dismissal. The disciplinary process may culminate in an employee's termination or may
       occur immediately as the first step, if warranted. Dismissals shall be based upon the



                  City of Plainview Personnel Policy - March 9, 2006 - Page 41
        recommendation of the employee's supervisor. Dismissals are only effective upon the approval
        of the employee's director and the City Manager.

        F. Written Record. Supervisors shall maintain written records of all offenses and disciplinary
        actions taken. Records of disciplinary actions taken should include at least the following: a
        description of the occurrence in detail, any related prior violations, the consequences of
        uncorrected behavior, and recommendations for improvement. Records of verbal warnings need
        only be maintained in the supervisor's file. The supervisor shall provide copies of all other
        formal, written rebukes to the employee, the Personnel Department, his/her director, and the City
        Manager.

        G. Exempt Employees. Employees classified as exempt under the FLSA are not subject to
        disciplinary deductions in pay of less than a full work week at a time, except for disciplinary
        actions taken as a result of major violations of safety rules.

         Section I 0.3 Pre-termination Procedures. Whenever possible, a supervisor considering a
disciplinary termination should meet with the employee in a pre-termination conference. If warranted, a
supervisor may elect to have another staff member present during the meeting. The supervisor, after
stating his/her reasons, shall give the employee a chance to respond. Any notice of termination shall be
personally delivered to the employee or his/her designee. Alternatively, a termination notice may be
mailed by certified mail, return receipt requested, to the employee's last known address.

        Section I 0 .4 Right to Appea l. Any employee who believes that he/she has been treated unfairly
may utilize the employee grievance procedure.

       Section I 0.5 Emplm,ee G rievance Procedure.

        A. Purpose. This procedure allows employees an opportunity to present their work-related
        complaints and to appeal decisions through a dispute resolution process. The grievance
        procedure is the exclusive remedy for employees with appropriate grievances.

        B. Grounds. The City will attempt to prevent the occurrences of grievances and to resolve
        promptly all grievances which are appropriate for handling under this policy.

        Matters considered appropriate for handling through the grievance procedure include: (I) a belief
        that City policies, practices, rules, regulations, or procedures (but not the policies, practices, rules,
        regulations, or procedures themselves) have been applied in a manner detrimental to an
        employee; (2) unfair treatment; (3) improper or unfair administration of employee benefits or
        conditions of employment; and (4) improper working conditions.

        Grievances which pertain to harassment should be handled in accordance with the procedure
        established in Section I0.6.

        C. Rights. Any employee who presents a complaint in good faith and in a reasonable manner
        will be free from any restraint, interference, discrimination, or reprisal. An employee will have
        the right, with or without his/her representative, to discuss such matters with his/her immediate
        supervisor and higher levels of supervision. Any information concerning an employee grievance
        will be handled as confidentially as possible. The matters are to be discussed only with
        individuals who have a need to know or who can supply necessary information. The City may,
        at its discretion, refuse to proceed with any complaint which it determines is improper under this
        policy.

        D. Employee Grievance Committee.



                   City of Plainview Personnel Policy - March 9, 2006 - Page 42
        I. The Employee Grievance Committee shall consist of seven (7) members: two (2)
       members of the City administrative staff(except the director of the appealing employee);
       two (2) supervisors (except the supervisor of the appealing employee); and three (3)
       employees (except representatives of the Personnel Department).       Except as noted all
       members of the City administrative staff and all supervisors are permanent members of
       the Employee Grievance Committee and, as such, are subject to be called to hear a
       grievance at any time. Members of the committee shall be drawn by lot by the employee
       filing the grievance.

       2. The Personnel Department will provide a resource person who serves as secretary to
       the grievance committee.

       3. In January of each year, the employees of each City department shall nominate one (I)
       person from their department to serve on the Employee Grievance Committee as
       employee nominees.        Departmental foremen, supervisors, sergeants, lieutenants, and
       captains are not eligible for nomination. Employee nominees will serve for one (I) year.

E. Procedure.

       1. Step One. An employee shall first discuss the complaint or grievance with his/her
       supervisor and director in a joint meeting. The meeting shall be held within seven (7)
       calendar days of the incident's occurrence.

                a. If an employee's immediate supervisor is the director or if the department is
                temporarily operating without a director, the employee will draw by lot the name
                of a member of the City administrative staff. The individual chosen will be
                present at the meeting in a strictly advisory capacity.

                b. For purposes of this policy, "City administrative staff' includes: the Director
                of Public Works; Police Chief; Fire Chief; Director of Finance; Director of
                Community Development; and Municipal Court Judge.

                c. The decision of the director or department head (if a department is temporarily
                operating without a director) shall be made in writing within seven (7) calendar
                days. It shall be delivered to the employee and his/her supervisor.

       2. Step Two. An employee may appeal to the Employee Grievance Committee within
       seven (7) calendar days of the previous decision. The employee shall deliver the notice
       of appeal to the Personnel Department. The written notice shall state the reason(s) for the
       appeal.

                a. The Employee Grievance Committee shall convene a joint meeting with
                everyone concerned within seven (7} calendar days of the receipt of the written
                appeal.

                b. The Employee Grievance Committee will render its decision in writing within
                seven (7) calendar days of the meeting's conclusion. The written decision shall
                be delivered to the employee and his/her supervisor and director.

       3. Step Three. A final appeal may be made in writing by the employee or his/her
       supervisor to the City Manager within five (5) calendar days of the previous decision.
       The City Manager shall render a decision in writing on the grievance within ten (I 0)
       calendar days. His/Her decision shall be final and binding upon all parties.



          City of Plainview Personnel Policy - March 9, 2006 - Page 43
APPENDIX 8
Baca v. City of Dallas, 796 S.W.2d 497 (1990)




                                                                 [3]    Constitutional Law
                    796 S.W.2d 497                                          Source of Right or Interest
                Court of Appeals of Texas,
                                                                        Property interests are not created by the
                          Dallas.
                                                                        United States Constitution; they are created
                 Jesse BACA, Appellant,                                 and their dimensions are defined by existing
                          v.                                            rules or understandings that stem from
                                                                        independent source such as state law. U.S.C.A.
               CITY OF DALLAS, Appellee.
                                                                        Const.Amends. 5, 14.
       No. 05–89–00819–CV.          |     July 11, 1990.
                                                                        Cases that cite this headnote
City civil service trial board upheld discharge of policeman.
Discharged policeman sought judicial review. The 193rd           [4]    Constitutional Law
Judicial District Court, Dallas County, Michael O'Neill, J.,                Termination or Discharge
sustained discharge. Discharged policeman appealed. The
                                                                        Due process requires public employer to provide
Court of Appeals, Howell, J., held that: (1) discharged
                                                                        its employee oral or written notice of charges
policeman did not have constitutional right to jury trial,
                                                                        against him, explanation of employer's evidence,
and (2) due process principles did not entitle discharged
                                                                        fair opportunity for employee to present his side
policeman to full evidentiary trial court review.
                                                                        of the story, and full evidentiary posttermination
                                                                        hearing conducted at meaningful time. U.S.C.A.
Affirmed.
                                                                        Const.Amends. 5, 14.

                                                                        3 Cases that cite this headnote
 West Headnotes (5)
                                                                 [5]    Constitutional Law
                                                                            Termination or Discharge
 [1]    Jury
            Trial on Appeal or Other Proceeding for                     Municipal Corporations
        Review                                                             Review in General

        Discharged policeman did not have right to                      Due process principles did not entitle discharged
        jury trial on appeal from city's civil service                  policeman to full evidentiary trial court review
        trial board decision upholding policeman's                      of city's civil service trial board determination
        discharge. U.S.C.A. Const.Amends. 7, 14;                        upholding policeman's discharge; discharged
        Vernon's Ann.Texas. Const. Art. 1, § 15; Art. 5,                policeman had been allowed to present evidence
        § 10.                                                           and arguments at hearing before the board, and
                                                                        city's charter provided for district court appeal
        1 Cases that cite this headnote                                 based only upon review of record made before
                                                                        the trial board. U.S.C.A. Const.Amends. 5, 14.
 [2]    Jury                                                            2 Cases that cite this headnote
            Application of Provisions of Federal
        Constitution to State Courts
        The United States Constitution does not
        guarantee the right to trial by jury in any state       Attorneys and Law Firms
        court in any character of civil action. U.S.C.A.
        Const.Amend. 7.                                         *498 Thomas J. Turner, Dallas, for appellant.

        2 Cases that cite this headnote                         Craig Hopkins, Dallas, for appellee.

                                                                Before HOWELL, LAGARDE and THOMAS, JJ.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Baca v. City of Dallas, 796 S.W.2d 497 (1990)


                                                                       S.W.2d 227, 229 (Tex.Civ.App.—Texarkana 1937, no writ).
                                                                       In Huguley, this Court quoted a law review article stating:
                           OPINION                                     “Since appeals from administrative decisions were unknown
                                                                       to Texas law at the time of the adoption of the Constitution
HOWELL, Justice.                                                       there is no right to a jury trial in actions brought to review
                                                                       administrative decisions, unless statute so provides.” Id. at
The City of Dallas (City) discharged Jesse Baca (Employee),            217 (quoting Harris, The Administrative Law of Texas, 29
a policeman, on March 22, 1985. Employee appealed his                  Tex.L.Rev. 213, 223 (1951)). Since the decision to terminate
discharge to the City of Dallas Civil Service Trial Board. The         Employee was an administrative decision, Employee has
trial board conducted a hearing, during which both Employee
                                                                       no state constitutional right to a jury trial. We overrule
and City presented evidence and arguments. After the trial             Employee's first point of error.
board upheld his discharge, Employee appealed to the district
court. The district court denied Employee's motion for a jury          In his second point of error, Employee contends that the
trial and refused to allow Employee to present evidence other          district court erred in refusing to allow him to present
than the statement of facts from the trial board hearing. The          evidence or testimony. He cites as authority for this
district court then sustained Employee's discharge. Employee           contention the Fourteenth Amendment to the United States
contends that he has a constitutional right to a jury trial and        Constitution which reads in part: “Nor shall any State deprive
a right under the Due Process Clause of the United States              any person of life, liberty, or property without due process of
Constitution to present additional evidence in his appeal to           law....” Employee argues that the trial court's refusal to allow
the district court. Because we hold that neither the federal           him to present evidence or testimony should be considered
constitution nor the state constitution requires a jury trial          a violation of due process. City replies that, as a home-rule
in a case such as this and that all due process procedural             municipal corporation, it possesses plenary powers by virtue
requirements were met, we affirm the judgment of the trial             of article 11, section 5 of the Texas Constitution, subject only
court.                                                                 to limitations imposed by its own charter and ordinances. See
                                                                       Interstate Circuit, Inc. v. City of Dallas, 247 F.Supp. 906,
In his first point of error, Employee contends that the trial          909 (N.D.Tex.1965); City of Dallas v. Parker, 737 S.W.2d
court erred in denying his request for a jury trial. He argues         845, 847 (Tex.App.—Dallas 1987, no writ). Therefore, City
that the denial of a jury trial is a violation of article I, section   contends that since its charter provides for a district court
15 and article V, section 10 of the Texas Constitution and             appeal by a discharged employee based only upon a review
amendments VII and XIV of the United States Constitution.              of the record made before the trial board, the district court
                                                                       correctly denied additional evidence.
 [1] [2] After reviewing applicable law, we conclude that
Employee had no constitutional right to have a jury trial in            [3] To bring himself within the protection of the due process
his appeal of his termination. The United States Constitution
                                                                       clause, Employee must show that he had a property right in
does not guarantee the right to a trial by jury in any state           his employment with City. See Board of Regents v. Roth, 408
court in any character of civil action. White v. White, 108            U.S. 564, 576–78, 92 S.Ct. 2701, 2708–10, 33 L.Ed.2d 548
Tex. 570, 579, 196 S.W. 508, 511 (1917); Huguley v.                    (1972); City of Amarillo v. Hancock, 239 S.W.2d 788, 791
Board of Adjustment, 341 S.W.2d 212, 217 (Tex.Civ.App.—                (Tex.1951). Property interests are not created by the United
Dallas 1960, no writ). Therefore, Employee had no federal              States Constitution; “they are created and their dimensions
constitutional right to a jury trial. Additionally, Texas case         are defined by existing rules or understandings that stem from
law has long held that under the Texas Constitution, a party           an independent source such as state law....” Cleveland Bd. of
is entitled to a jury trial only “if that practice prevailed in this   Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491,
state, according to the then existing laws, at the time of the         84 L.Ed.2d 494 (1985) (quoting Roth, 408 U.S. at 577, 92
adoption of said provisions as portions of our present State           S.Ct. at 2709). Although the due process clause also protects
Constitution of 1876.” White, 108 Tex. at 581, 196 S.W. at             interests of life and liberty, Employee has not contended that
512; Adams v. Texas State Bd. of Chiropractic Examiners,               he has been deprived of either of these.
744 S.W.2d 648, 651 (Tex.App.—Austin 1988, no writ); City
of Houston v. Blackbird, 658 S.W.2d 269, 273 (Tex.App.                  [4] [5] Employee contends that he had a right to continued
—Houston [1st Dist.] 1983, writ *499 dism'd); Huguley,                 employment with City and that such was a form of property
341 S.W.2d at 217; Texas Liquor Control Bd. v. Jones, 112


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Baca v. City of Dallas, 796 S.W.2d 497 (1990)


                                                                       writ denied). Employee does not claim a violation of any of
right. However, we need not decide this issue; we conclude
                                                                       these requirements. Instead, he would take the requirements
that the procedures employed by City and the district court
                                                                       a step further, i.e., a full evidentiary trial court review. The
met due process minimums. Due process requires a public
                                                                       constitution does not require this additional step. Not only
employer to provide its employee: (1) oral or written notice of
                                                                       is judicial review of local government dismissals limited in
the charges against him; (2) an explanation of the employer's
                                                                       Texas, but it is limited in most, if not all, other jurisdictions.
evidence; (3) a fair opportunity for the employee to present his
                                                                       See 2A C. ANTIEAU, MUNICIPAL CORPORATION LAW
side of the story; and (4) a full evidentiary post-termination
                                                                       § 22.195 (1976). We overrule Employee's second point of
hearing conducted at a meaningful time. See Loudermill,
                                                                       error and affirm the judgment of the trial court.
470 U.S. at 546, 105 S.Ct. at 1495; City of San Antonio v.
Lopez, 754 S.W.2d 749, 752 (Tex.App.—San Antonio 1988,

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

                                                                         Education
                                                                             Grooming and dress
                     901 S.W.2d 447
                 Supreme Court of Texas.                                 Claims that school district's hair length
                                                                         restrictions and earring prohibition for male
        Austin David BARBER et al., Petitioners,                         high school students, as applied to students
                         v.                                              who had reached age of majority, violated
             COLORADO INDEPENDENT                                        state constitutional rights to equal protection,
          SCHOOL DISTRICT, Respondent.                                   to freedom of expression, to education, and
                                                                         to privacy did not manifest such affront to
             No. 94–0054. | Argued Nov.                                  constitutional rights as to merit intervention by
         16, 1994. | Decided June 22, 1995.                              Supreme Court. Vernon's Ann.Texas Const. Art.
                                                                         1, § 3a.
Class action was brought to challenge legality under state
constitutional of hair length and earring restrictions imposed           6 Cases that cite this headnote
by school district upon male high school students. The
32nd District Court, Mitchell County, Jess Holloway, J.,
                                                                  [3]    Education
granted permanent injunction against enforcement of district's
                                                                             Reasonableness and validity in general
regulations, and district appealed. The Court of Appeals,
                                                                         Constitutional rights of students in public
864 S.W.2d 806, reversed. Application for writ of error was
                                                                         schools are not coextensive with rights of adults
filed. The Supreme Court, Gonzalez, J., held that claims did
                                                                         in other settings.
not manifest such affront to constitutional rights to equal
protection as to merit Court's intervention.                             2 Cases that cite this headnote

Affirmed.
                                                                  [4]    Constitutional Law
Gammage and Spector, JJ., filed dissenting opinions.                         Children and minors, rights of
                                                                         Although minors have constitutional rights,
                                                                         they do not have same constitutional rights as
                                                                         adults; consequently, state has more control over
 West Headnotes (4)
                                                                         conduct of minors than it does over adults.

                                                                         4 Cases that cite this headnote
 [1]    Appeal and Error
           Cases Triable in Appellate Court
        Supreme Court is obliged to decide issues of law
        de novo.
                                                                 Attorneys and Law Firms
        49 Cases that cite this headnote
                                                                 *447 Pat Barber, Colorado City, James C. Harrington,
                                                                 Austin, for petitioners.
 [2]    Constitutional Law
            Right to Education                                   T.L. Rees, C. Michael Ratliff, Colorado City, for respondent.
        Constitutional Law                                       Opinion
            Students
        Constitutional Law                                       GONZALEZ, Justice delivered the opinion of the Court,
            Students                                             in which PHILLIPS, Chief Justice, and HIGHTOWER,
                                                                 HECHT, CORNYN, ENOCH and OWEN, Justices, join.
        Constitutional Law
            Dress and grooming                                   This is a class action challenging the legality under the
        Constitutional Law                                       state constitution of hair length and earrings restrictions
            Elementary and secondary education                   imposed by Colorado Independent School District (CISD)


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

upon its male high school students. The trial court held that       the future. Over CISD's objections, the trial court designated
CISD's grooming code violated the Texas Constitution and            Barber the class representative. The case was tried to the court
granted a permanent injunction against the school district,         without the benefit of a jury. A summary of the evidence
prohibiting enforcement of the regulations. The court of            presented at trial follows.
appeals reversed the judgment of the trial court, holding
that judicial intervention was inappropriate in this case. 864      O'Henry Young testified that he has been an attorney for thirty
S.W.2d 806. We refuse to use the Texas Constitution to              years and has served as a member of the Abilene Independent
micro-manage Texas high schools. Therefore, we affirm the           School Board for many years. He compared Abilene ISD
judgment of the court of appeals.                                   grooming and dress codes to CISD's and stated that Abilene
                                                                    ISD chose to “get out of the hair business,” in part because the
In 1992, Austin Barber was an eighteen-year-old high school         school board was unsure whether it could legally regulate this
senior in Colorado City, Texas. CISD's school rules included        area. He did not think that CISD's regulation served a useful
the following regulation:                                           purpose.

   *448 The District's dress code is established to                 Gary Paterson, the principal of Snyder High School, testified
  teach grooming and hygiene, instill discipline, prevent           that Snyder ISD did not have a specific rule regarding hair
  disruption, avoid safety hazards, and teach respect for           length for the general student population. (It did have a rule
  authority.                                                        that boys could not wear earrings.) For boys in sports, Snyder
                                                                    ISD gave coaches the authority to set standards about the hair
  Boys may wear hair to the bottom of the collar, the
                                                                    length of boys on their teams. Snyder ISD also regulated skirt
  bottom of the ear and combed out of the eyes. Boys may
                                                                    lengths for girls. Paterson testified that if a boy showed up
  not wear earrings of any kind. Caps and hats not a part
                                                                    in school in a dress, he would be presumed disruptive and be
  of women's formal attire may not be worn in the building.
                                                                    asked to change his attire. He did not think that it would be
  Sudden, unbecoming fashions or anything designed to
                                                                    wise to have a different standard for students merely because
  attract undue attention to the individual or activities are not
                                                                    they were eighteen years old.
  acceptable. These guidelines are subject to administrative
  discretion. Extra-curricular organizations may impose a
                                                                    Joe Marlett, principal of Sweetwater High School, testified
  more stringent dress code.
                                                                    that his school board did not regulate boys' hair length
(Emphasis added.) Barber and his family had a contrary              but distinguished between the sexes as to earrings. Boys
view about whether he was required to observe CISD's                could wear a stud but not dangling earrings; girls could
grooming policy. They notified the school board that Barber         wear dangling earrings. As to the disparity of rules between
had reached the age of majority and requested that CISD             the different school districts, Marlett testified that “local
suspend enforcement of the grooming regulation as to him            policy would govern what is best for their particular school
and other students aged eighteen and over. They stated that         district” and that each school district's regulations represent
the regulation's restrictions for males regarding hair length       the societal values of a particular locale. He added that what
and earrings violated Barber's fundamental constitutional           may be appropriate and in good taste in one district may not
rights because the policy did not apply to female students.         be in another.
They concluded that if CISD did not exempt Barber and other
adult males from the regulation, they were going to sue. By         Raymond Hollis, the superintendent of schools at Westbrook
a 4–to–2 vote, the CISD board members refused to suspend            ISD, testified that although his schools' grooming rules do not
enforcement of the regulation.                                      mention hair length, none of the boys in his schools had hair
                                                                    longer than their collars. Westbrook ISD's grooming rules
Consequently, with the assistance of his father, an attorney,       require that girls' skirts not be shorter than the top of the
Barber brought a class action against CISD to enjoin                knee. Hollis indicated that arbitrary rules for hair length and
its enforcement of the regulation. Barber challenged the            earrings were an important teaching device, which would
constitutionality of CISD's dress code regulation as it pertains    instill discipline in students by teaching them that there are
to adult male students. Over CISD's objections, the trial court     consequences for not following rules.
certified the class as all male students attending CISD schools
who were eighteen years of age at the time of suit and in



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

 *449 James McSwain, the high school principal of CISD,            for himself the length of his hair and whether and when to
testified about the grooming code in question and about the        wear an earring.
consequences when a student did not follow the rules. In the
high school, about twenty-five or thirty male students had         Dwayne Harris, a farmer and member of the CISD school
been asked to cut their hair, and only two were suspended          board, testified that the district's grooming regulation
from school. McSwain testified that the grooming regulation        corresponds to community values.
was the result of “a collaborative effort between community
and faculty and students.” Ultimately the seven-person school      Pat Barber, the plaintiff's father who represented his son in
board formulated the policies. McSwain opined that there was       this lawsuit, and another attorney testified as to attorney fees.
a compelling reason for the grooming rules, stating that:
                                                                   The foregoing testimony was the sum total of Barber's case.
             [A] student must comply substantially
             with the rules of an institution. School              The defendant, CISD, elicited the testimony of Dr. Edwin
             has to have rules, obviously, to carry                Headrick, a professor of psychology at Abilene Christian
             out its business. I think that is part                University. The professor testified that now, more than ever,
             of our responsibility to educate kids. I              due to the breakdown of the family, it is important that schools
             think it is an educational tool to teach              teach students how to live in society. He explained that rules
             compliance with rules, and that is an                 such as the grooming regulation at issue are one way to
             integral part of society and is a part of             teach students discipline and respect for authority, as well as
             our responsibility to teach students that             personal grooming and hygiene. Headrick stated that rules
             they must comply with rules even if                   differ with the community standards of each locale, and that
             they don't agree with the rule.                       students need to learn how to comply with rules of which they
                                                                   do not approve. He concluded that CISD's grooming rules
McSwain added that Barber was in a “home-bound” program
                                                                   were an important part of the educational process.
due to knee surgery, and that he attended classes at school
part of the time, but that most of his school work was done
                                                                   The trial court held that the hair and earrings provisions
at home.
                                                                   of CISD's grooming code violated the state Equal Rights
                                                                   Amendment, TEX. CONST. art. I, § 3a, and the constitutional
Barber testified that he cut his hair to appear in a
                                                                   rights to freedom of expression, to an education, and to
community theater play; that he has never served in-school
                                                                   privacy. It issued an injunction against CISD to prohibit the
suspension time due to the length of his hair; that because
                                                                   district from enforcing the regulation as to its adult male
school administrators threatened him twice with in-school
                                                                   students. The trial court also awarded Barber $13,600 in
suspension because of the length of his hair, he got it cut; and
                                                                   attorneys' fees. The court of appeals reversed and rendered
that he had served in-school suspension time twice during his
                                                                   a take-nothing judgment against Barber. 864 S.W.2d at 808.
sophomore year (once for leaving school without signing out
                                                                   It held that Barber's cause of action did not justify judicial
and once for being tardy four times to his first period class).
                                                                   intervention in CISD's enforcement of the grooming code. Id.
Barber testified that he brought the lawsuit for the following
                                                                   at 807.
reasons:

             Because I don't feel that four                         [1] The trial court rendered judgment solely on the Equal
             members of a School Board should                      Rights Amendment, TEX. CONST. art. I, § 3a. It filed
             be able to dictate to an adult student                findings of fact and conclusions of law. The finding of fact
             matters of hairstyle, which to me is                  most relevant to the ultimate issue is as follows:
             an expression of individualism and
                                                                      *450 C.I.S.D.'s dress and grooming code objectives,
             personal freedom. I would like to be
                                                                     enumerated above, may be accomplished by many
             free from sexual discrimination.
                                                                     reasonable means other than the gender-based
He also questioned the utility of the hair length and earrings       discrimination expressed in said regulations. All of the
restrictions for males, particularly since they did not apply        credible testimony and other credible evidence establishes
equally to females. Barber concluded that he wanted to decide        that said regulations are not reasonably necessary for the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

  accomplishment of said objectives, and any evidence to the                  any government, state or federal,
  contrary is specifically found to be not credible.                          should as a matter of public policy
                                                                              regulate the length of haircuts, but
The finding is one of mixed law and fact, and we are obliged                  it would be difficult to prove by
to decide de novo the issues of law. See generally Richards v.                reason, logic, or common sense that
League of United Latin Am. Citizens, 868 S.W.2d 306, 310–                     the federal judiciary is more competent
12 (Tex.1993).                                                                to deal with hair length than are
                                                                              the local school authorities and state
 [2] Barber's claims do not manifest such an affront to                       legislatures of all our 50 States.
his constitutional rights as to merit our intervention in
this case. See Ferrell v. Dallas Ind. Sch. Dist., 392 F.2d        460 F.2d at 611.
697, 702–04 (5th Cir.1968) (finding that a school district's
high school grooming code did not violate the state or            Mr. Justice Black, in denying the stay of an injunction
federal constitution). The Fifth Circuit Court of Appeals         that would have barred the El Paso school authorities from
has a bright line rule for federal district courts in Texas,      enforcing the grooming policy, wrote words that ring true
Louisiana, and Mississippi to apply in these matters. The         today:
Fifth Circuit differentiates between college and high school
settings. Compare Karr v. Schmidt, 460 F.2d 609, 611 (5th                     [T]he record ... [is] calculated to leave
Cir.1972) (stating that a high school student's “asserted right               the impression that this case over the
to be free of school regulations governing the length of his                  length of hair has created or is about
hair is one that is not cognizable in federal courts”), cert.                 to create a great national “crisis.” I
denied, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256 (1972),                    confess my inability to understand
with Lansdale v. Tyler Junior College, 470 F.2d 659, 663 (5th                 how anyone would thus classify this
Cir.1972) (en banc) (disapproving enforcement of a junior                     hair length case. The only thing about
college's grooming code and stating, “the place where the line                it that borders on the serious to me
of permissible hairstyle regulation is drawn is between the                   is the idea that anyone should think
high school door and the college gate”), cert. denied, 411                    the Federal Constitution imposes on
U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964 (1973). It concludes                  the United States courts the burden
that at the college level, a school's asserted educational and                of supervising the length of hair that
disciplinary needs do not justify grooming codes absent                       public school students should wear.
exceptional circumstances.
                                                                  Karr v. Schmidt, 401 U.S. 1201, 1202–03, 91 S.Ct. 592, 593,
                                                                  27 L.Ed.2d 797 (1971). This statement is no less applicable
 [3] Because the constitutional rights of students in public
                                                                  to the Texas Constitution and state courts.
high schools are not coextensive with the rights of adults
in other settings, see New Jersey v. T.L.O., 469 U.S. 325,
                                                                  In Mercer v. Board of Trustees, 538 S.W.2d 201, 206
339, 105 S.Ct. 733, 741–42, 83 L.Ed.2d 720 (1985) (easing
                                                                  (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.),
Fourth Amendment requirements to balance a student's rights
                                                                  a high school student challenged a school grooming
against school officials' substantial interest in maintaining
                                                                  regulation similar to CISD's under the state Equal Rights
discipline), we agree with the Fifth Circuit's sensible
                                                                  Amendment, and sought to enjoin *451 enforcement of the
approach when reviewing grooming codes in high schools.
                                                                  regulation. After obtaining no relief in the trial court, he
                                                                  appealed to the court of appeals which refused to intervene.
It is a matter of common sense that the state judiciary is less
                                                                  That court noted that elementary and high school students:
competent to deal with students' hair length than a parent,
school board, administrator, principal, or teacher. A similar                 are in a formative period of their
case arose more than twenty years ago in El Paso, Texas, and                  lives wherein their values are being
the Fifth Circuit drew a similar conclusion with regard to the                established by parents, church, and
federal judiciary. In Karr, the court noted:                                  school. All may reasonably establish
                                                                              rules of conduct arising out of the
            There can, of course, be honest
            differences of opinion as to whether


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

            relationship without intervention of
            the courts.                                            GAMMAGE, Justice, dissenting.
                                                                   The majority summarily dismisses Austin David Barber's
Id. at 206. The student in Mercer appealed to this Court.          constitutional claims without the benefit of legal analysis
Without issuing an opinion, we also refused to intervene. We       and fails to find that CISD's hair-length regulation implicates
subsequently cited Mercer with approval in Eanes Indep. Sch.       the Texas Equal Rights Amendment. It is wrong for several
Dist. v. Logue, 712 S.W.2d 741, 742 (Tex.1986), in which we        reasons.
directed a trial judge to rescind an order affecting how three
high schools conducted their extracurricular sports programs.      First, Barber pleaded his case exclusively on state
                                                                   constitutional grounds. He brought this suit against CISD
 [4] Although minors have constitutional rights, they do           because the high school's “hair code” restrictions, which
not have the same constitutional rights as adults. See,            apply only to male students, violated his constitutionally
e.g., In re J.T.H., 779 S.W.2d 954, 956 (Tex.App.—                 protected rights of privacy and symbolic speech, and freedom
Austin 1989, no writ) (holding that a statute allowing the         from gender discrimination under the Texas ERA. (Although
imprisonment of juveniles without presenting an indictment         Barber's privacy and free speech claims under the Texas
was valid under the state and federal constitutions); Strange      Constitution are significant, I would dispose of this case on
v. State, 616 S.W.2d 951, 953 (Tex.Civ.App.—Houston [14th          the grounds clearly presented by the Texas ERA.) Second, the
Dist.] 1981, no writ) (holding that minors do not have a           CISD regulation reads:
constitutional right to a jury trial in the adjudicative stage
of a juvenile proceeding); Diamond, The First Amendment                         Boys may wear hair to the bottom of
and Public Schools: The Case Against Judicial Intervention,                     the collar, the bottom of the ear and
59 TEX.L.REV. 477, 489 (1981) (discussing McKeiver v.                           combed out of the eyes. Boys may not
Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647                       wear earrings of any kind.
(1971), which held that minors do not have the right to a
                                                                   This regulation, on its face, provides for different treatment
jury trial in criminal proceedings against them). In Bellotti v.
                                                                   of males and females. “Any classification based upon sex is a
Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979),
                                                                   suspect classification and any law or regulation that classifies
the United States Supreme Court explained the purpose for
                                                                   persons for different treatment on the basis of their sex is
the distinction between the constitutional rights of minors and
                                                                   subject to strictest judicial scrutiny.” Mercer v. Board of
adults as follows:
                                                                   Trustees, North Forest Ind. Sch. Dist., 538 S.W.2d 201, 206
            We have recognized three reasons                       (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.).
            justifying the conclusion that the                     Because this regulation is facially discriminatory and Barber
            constitutional rights of children cannot               brought his cause of action for gender discrimination, we
            be equated with those of adults: the                   must apply an ERA analysis.
            peculiar vulnerability of children; their
            inability to make critical decisions                    *452 Article I, section 3a of the Texas Constitution
            in an informed, mature manner; and                     mandates that “[e]quality under the law shall not be denied
            the importance of the parental role in                 or abridged because of sex, race, color, creed, or national
            child-rearing.                                         origin.” The Texas constitution provides broader protection
                                                                   than federal law in matters of gender discrimination because
Id. at 634, 99 S.Ct. at 3043 (plurality opinion). Consequently,    the Texas Equal Rights Amendment “is more extensive and
the state has more control over the conduct of minors than it      provides more specific protection than both the United States
does over adults. Ginsberg v. New York, 390 U.S. 629, 638,         and Texas due process and equal protection guarantees.” In re
88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1967) (quoting Prince         McLean, 725 S.W.2d 696, 698 (Tex.1987). Our jurisprudence
v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88         recognizes gender as a suspect classification in this state.
L.Ed. 645 (1944)).                                                 Id.; see also Maloy v. City of Lewisville, 848 S.W.2d 380
                                                                   (Tex.App.—Fort Worth 1993, no writ); Williams v. City
For all of these reasons, we affirm the judgment of the court      of Fort Worth, 782 S.W.2d 290 (Tex.App.—Fort Worth
of appeals.                                                        1989, writ denied); In re Baby Girl S., 628 S.W.2d. 261
                                                                   (Tex.App.—Eastland 1982, writ ref'd n.r.e.); Mercer v. Board



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

of Trustees, North Forest Ind. Sch. Dist., 538 S.W.2d 201                         As we read the record, none of
(Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref'd n.r.e.).                      these defense witnesses documented
We recognize that “[t]he first step in a case invoking this                       a factual basis for his opinion that
provision is to determine whether equality under the law                          there was any cause and effect
has been denied.... Our next inquiry is whether equality was                      relationship between short hair and
denied because of a person's membership in a protected class                      better education or between long hair
of sex, race, color, creed, or national origin.” McLean, 725                      and inferior education.
S.W.2d at 697.
                                                                     Neuhaus v. Federico, 12 Or.App. 314, 505 P.2d 939, 945
The school district acknowledges that its restriction                (1973) (emphasis in original).
prohibiting hair extending over a student's collar applies only
to males. Accordingly, under the strict scrutiny we must             Nor are the hair-length restrictions even rationally related
give a gender-based code, regulation or rule, a governmental         to the goals of promoting safety and hygiene. “[A]lthough
entity must demonstrate that it has a compelling state interest      girls engage in substantially the same activities in gym and
in discriminating on the basis of gender which cannot be             biology classes, only boys have been required to cut their
achieved in any other manner. Here, the district maintains that      hair in order to attend classes.... [D]efendants have offered
it is sufficient reason to discriminate against male students, if,   no reasons why health and safety objectives are not equally
as the Colorado I.S.D.'s Code of Conduct handbook states, the        applicable to high school girls.” Crews v. Cloncs, 432 F.2d
purpose in regulating the hair length of only males is “to teach     1259, 1266 (7th Cir.1970). CISD's argument that its policy
grooming and hygiene, instill discipline, prevent disruptions,       promotes grooming and hygiene among the entire student
avoid safety hazards, and teach respect for authority.” At           body is suspect because the regulation only addresses the
trial and in argument, the school district admitted that what        length of a male student's hair, not its style or cleanliness. See
might be its sole compelling interest for this rule is preventing    Neuhaus, 505 P.2d at 945. Because CISD can offer no proof
disruptions that long hair on male students may cause.               that any purported objectives of educational policy are met
Counsel for the school district, however, conceded before            by regulating the hair length of male students only, the hair-
this Court that the district offered no evidence and made no         length rule cannot survive even minimum rationality scrutiny.
attempt to prove that long hair on male students caused any
disruption within the schools. To the contrary, in the words          *453 Finally, CISD's grooming policy fails the minimum
of the district's own counsel:                                       scrutiny of a rational basis test because it significantly
                                                                     intrudes into the private lives of students with proportionately
             [T]he only thing we can do to disprove                  little justification.
             or prove a compelling point on this
             matter is to prove disruption. How can                               [W]hile the intention of such a
             you do that? A long-haired student is                                rule is to control hair length during
             just as peaceful, he's a good athlete,                               school hours, its necessary effect is
             good academic, he sits in the back                                   to control hair length for 24 hours
             row and does just as good a job                                      a day and out-of-school activity is
             as everybody else in that classroom.                                 therefore regulated more than is in-
             HOW DO WE PROVE THAT THAT                                            school activity. Since hair cannot,
             IS DISRUPTIVE? WE CAN'T..                                            in the nature of things, be short at
                                                                                  school and yet the length preferred
Other courts addressing school districts' arguments that long                     by a student and his parent at other
hair on male students is disruptive have also noted:                              times, this rule is more akin to a
                                                                                  regulation forbidding students from
             Educators testifying for the defendants                              attending parties in the evening, than
             stated that in their opinions long hair                              one prohibiting metal shoes in a
             on male students could be disruptive,                                school building.... A rule imposing
             and, thus, they believed the maximum                                 such a significant invasion into the
             hair length rule to be necessary                                     private lives of children and their
             to promote the educational process.                                  parents requires a showing of greater


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

             justification and demonstrable need by                 that mission. The constitution exists to establish a form of
             the school board than one regulating                   government, provide for its operations, and to protect citizens
             purely in-school appearance, such as a                 from government intrusions upon their rights and liberties.
             rule about lengths of skirts.                          Because public school districts are institutions of government
                                                                    and legislatively-created political subdivisions of the state,
Independent Sch. Dist. No. 8 of Seiling, Dewey County v.            school district action is government action and, absent
Swanson, 553 P.2d 496 (Okla.1976.); see also Neuhaus,               some permissible bases founded upon an adequate standard,
supra. CISD's argued justification for this dramatic incursion      government may not violate constitutional prohibitions or
into male students' private lives is too unsubstantial to support   intrude upon citizens' constitutionally protected liberties.
the legitimacy of its hair-length policy.
                                                                    The majority also inappropriately adopts the Fifth Circuit
The school district admittedly cannot prove that this gender-       Court of Appeal's judicial nonintervention policy in grooming
based discriminatory hair length rule could meet even the           code cases. This Court is properly reluctant to intervene with
much less stringent standards of a rational basis test. It          the “heavy hand of justice” in local school matters. But when
argues, instead, that the rule is a mandatory “teaching             the heavy hand of local government arbitrarily discriminates
device,” reflecting “the community's societal values. It's          against its citizens in violation of constitutionally guaranteed
harder for a person in Colorado City, Texas to get a job if         limitations, and is challenged by its citizens in our courts,
they have long hair.” The majority of this Court chooses,           the *454 courts are required to respond. As the majority
without the requirement or offer of any proof, to accept            notes, the Fifth Circuit Court of Appeals has declined to
this specious explanation for a gender-based, discriminatory        act on challenges to school grooming codes. See Ferrell
regulation without any concern for its infringement of              v. Dallas Ind. Sch. Dist., 392 F.2d 697 (5th Cir.1968).
constitutionally guaranteed personal liberties. While dress         This case is not a federal cause of action, however, but
and grooming codes do not, per se, violate the constitution,        was brought in Texas courts under the Texas Constitution.
they must be based upon compelling educational goals and            We are aware that some state courts adopt wholesale the
may not be arbitrary and without foundation in furthering           federal judiciary's approach to federal constitutional issues
the educational mission of schools or avoiding disruptions.         in interpreting their own state constitutions, disregarding
By its own admission, CISD's gender-based hair-length rule          whether their state constitutions contain the same clauses
is “arbitrary” and does not achieve the rule's purported            or provisions as the federal constitution. Hans A. Linde,
educational goal. This provision of the grooming code,              State Constitutions Are Not Common Law: Comments on
consequently, cannot withstand analysis under the Texas             Gardner's Failed Discourse, 24 Rutgers L.J. 927, 928 (1993).
Equal Rights Amendment.                                             But state courts are not bound to follow the analysis or
                                                                    approach of federal courts, and state governments are bound
A school district is not an autonomous branch of government;        by the constraints of their own constitutions which may
it is a creation of the Legislature—a political subdivision         exceed federal constitutional limits on government action.
of the State. TEX. CONST. art. 7, §§ 1, 3 (Vernon's                 “We are not a branch of the federal judiciary; we are a court
1993) and TEX.REV.CIV.STAT.ANN. arts. 2656, 2780. It is             created by the Constitution of [this state] and we owe our
axiomatic that a school district has only those powers granted      primary obligation to that fundamental document.” Sands v.
it by the Legislature, and the Legislature cannot grant to          Morongo Unified Sch. Dist., 53 Cal.3d 863, 281 Cal.Rptr.
school districts powers which it does not itself possess. The       34, 60, 809 P.2d 809, 835 (1991) (Mosk, J., concurring).
Legislature has no power to act in violation of the constitution    In fact, this Court recognizes that “federal precedent is not
and it may not grant Colorado Independent School District's         controlling when considering a case under the Texas Equal
Board the power to do so. Where a school board acts, it acts        Rights Amendment.... [N]o federal constitutional counterpart
on behalf of the state, and its actions are those of the state.     exists, efforts to secure ratification of a national E.R.A.
                                                                    having met with a lack of success.... We decline to give the
The school districts of this state are charged with an              Texas Equal Rights Amendment an interpretation identical
educational mission, and are endowed by the Legislature             to that given state and federal due process and equal
with the necessary constitutional authority to perform that         protection guarantees.” In re McLean, 725 S.W.2d at 697.
mission. The Colorado I.S.D. School Board neither argues            The court in Mercer recognized the inappropriateness of
nor offers any evidence that this gender-based rule contributes     applying a federal analysis to an identical case expressly
to or is in any way calculated to aid in accomplishing


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

because “the present claim is based on a provision of the          authority within constitutional boundaries. The majority has
Texas Constitution that is not contained in the United States      nevertheless chosen to overlook CISD's unconstitutional
Constitution.... Therefore, appellants' claim must stand or fall   exercise of authority by attempting to characterize this case
on an interpretation of the ERA contained in the Constitution      as one involving nonconstitutional issues and by summarily
of the State of Texas.” Mercer, 538 S.W.2d at 203.                 determining that the hair-length rule meets a rational basis
                                                                   test without the benefit of any proper analysis. One would
Even the court in Karr v. Schmidt, 460 F.2d 609                    hope that no other prohibited form of invidious discrimination
(5th Cir.1972), decided before the ERA was enacted,                based on an immutable characteristic would be similarly
acknowledged that state legislatures are more competent            tolerated by this Court, even with respect to grooming rules.
to address local issues such as hair-length regulation than        Hopefully this Court would not adopt the position that
is the federal judiciary. By enacting the Texas ERA,               judicial intervention would be improper if a school board
the legislature and the people of Texas codified the               promulgated a regulation which read: “Hispanic–American
state's intolerance of gender discrimination. Because our          students may wear hair to the bottom of the collar, the
constitution, unlike the federal constitution, specifically        bottom of the ear and combed out of the eyes. Hispanic–
prohibits gender discrimination, we cannot properly utilize a      Americans may not wear earrings of any kind.” Surely such
federal approach in this case. As the state's highest court, we    a rule would be acknowledged as an outrage by this court
are bound to enforce the Texas Constitution's mandate under        because it facially discriminates on the basis of ethnicity.
the ERA. We consequently must decline to follow the Fifth          The majority, however, adopts an inappropriate extrajudicial
Circuit Court of Appeals' policy of judicial inaction in school    nonintervention policy in school grooming code cases which
grooming challenges when properly brought under our state          would allow this facially unconstitutionally discriminatory
constitution.                                                      regulation to survive. Such a court-made policy not only
                                                                   fails to protect students from unwarranted government
Of the fifteen other American jurisdictions having such            infringements upon their constitutionally guaranteed rights,
provisions in their constitutions, none have been called upon      but also fails even to teach them the “lesson” that CISD
to decide this issue under their respective state ERAs 1 . This    proclaims as invaluable to its students; that is, “that the local
is because, in most cases, before those states' ERAs were          employer in Colorado City or Blockbuster in Dallas doesn't
enacted, their respective state or federal district courts had     conform to the constitution.” (Oral argument of Tom Rees,
already found alternative grounds for invalidating gender-         counsel for CISD, November 16, 1994)
based hair-length restrictions. For example, the Supreme
Court of Alaska held that such regulations violated students'      By its decision today, the majority renders meaningless the
rights under the state constitution because schools had no         action of the people of Texas in placing the ERA in their
compelling interest in regulating hair length. Breese v. Smith,    state constitution, engaging in nothing less than the gratuitous
501 P.2d 159 (Alaska 1972). Consequently, future litigants         judicial nullification of an act of the people of Texas and
were not compelled to invoke the states' ERAs because the          totally disregarding their expressed constitutional will by
prohibited practices had already been dealt with under lesser      simply defining it out of existence. CISD's grooming code
degrees of constitutional scrutiny. (Presumably, one of the        unconstitutionally discriminates against the District's male
purposes of enacting state equal rights amendments is to           students in violation of the Texas Equal Rights Amendment.
provide greater protection against gender discrimination by
elevating the standard of judicial constitutional scrutiny.) See   Baseless and irrational discrimination in all its forms, at
also Richards v. Thurston, 424 F.2d 1281 (1st Cir.1970)            whomever directed and whatever its source or motivation, is
(invalidating hair-length restriction under a personal liberty     still baseless and irrational discrimination. In a free society
analysis); Massie v. Henry, 455 F.2d 779 (4th Cir.1972)            we may not always be able to prevent its private exercise, but
(striking grooming code for lack of rational basis).               in Texas our fundamental law does not permit it in our public
                                                                   schools and other governmental institutions. They should not
 *455 “The vigilant protection of constitutional freedoms          teach it, condone it, or engage in it, and our courts and other
is nowhere more vital than in the community of American            legal institutions should not—even passively and benignly—
schools.” Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct.           enforce it. I dissent.
247, 251, 5 L.Ed.2d 231 (1960). School officials, like
all other public officials, must exercise their delegated
                                                                   SPECTOR, Justice, dissenting.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902

                                                                      This view cannot be reconciled with the mandate of the Equal
Gender bias is not a trivial matter. Just last year, this Court
                                                                      Rights Amendment. The adoption of the ERA reflects this
appointed a committee to implement recommendations for
                                                                      state's commitment to the principles of tolerance, respect for
the elimination of gender bias in the Texas legal system. 1
                                                                      others, and equality under the law. The school district's policy
Today, this same Court turns its back on an indisputable
                                                                      is at odds with all of these ideals.
finding of sex discrimination, and unashamedly proclaims
that such matters are not worthy of this Court's consideration.
                                                                      The school district does not claim that its policy guards
I dissent.
                                                                      against gang activity, or avoids disruption of the educational
                                                                      process in any way. Instead, it asserts that the policy is
Under the policy at issue, the Colorado Independent School
                                                                      a device that “teaches the community's societal values.” 2
District removes from its classrooms any male students that
                                                                      According to the district, students must learn that a private
wear their hair below the bottom of the collar or the bottom
                                                                      employer has “the right to be irrational”:
of the ear. The trial court found that this policy discriminates
against adult male students solely on the basis of gender, and
that it is “totally unrelated to the proper objectives of the            If [a student] walks out of our school system with the naive
operation of public high schools.”                                       opinion that everybody has to comply with the constitution,
                                                                         we haven't taught him everything there is about the real
The court of appeals did not dispute that the school district's
                                                                         world. 3
policy is unconstitutional. It decided, however, that school
                                                                      Thus, the school district's position is that the very irrationality
districts have broad authority to impose unconstitutional
                                                                      and unconstitutionality of the policy teach the important
policies, and that “the judiciary should not intervene” in such
                                                                      lesson of obedience to arbitrary rules, and that judicial
matters. 864 S.W.2d 806, 807. This Court today upholds this
                                                                      interference hinders the teaching of that lesson.
decision, immunizing the school boards of Texas from claims
of gender discrimination.
                                                                      The only real lesson taught by the school district's policy—
                                                                      and, for that matter, by today's decision—is that local school
 *456 Since 1972, the Texas Constitution has included an
                                                                      officials are free to make arbitrary distinctions based solely on
Equal Rights Amendment providing that “[e]quality of the
                                                                      gender. Young Texans will thus learn that gender stereotypes
law shall not be denied or abridged because of sex, race, color,
                                                                      have this state's blessing. The Constitution may appear to say
creed, or national origin.” TEX. CONST. art. I, § 3a. I agree
                                                                      otherwise; but in reality, the law is irrelevant.
with Justice Gammage that this provision requires a reversal
in this case.
                                                                      Until we start taking gender bias claims seriously, the Texas
                                                                      ERA will never have the effect it was meant to have. For the
In the majority's view, the Equal Rights Amendment simply
                                                                      present, we can only hope that the school boards of Texas will
does not apply to school boards—particularly if the rights at
                                                                      show greater respect for individuals' rights under the ERA
stake are related to gender. To the members of the class in
                                                                      than this Court has shown today.
the present case, the majority explains that claims of gender
discrimination “do not manifest such an affront to [their]
constitutional rights as to merit our intervention in this case.”     Parallel Citations
Supra at 450.
                                                                      64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799,
                                                                      38 Tex. Sup. Ct. J. 902


Footnotes
1       The jurisdictions with equal rights amendments in their state constitutions are Alaska, Colorado, Connecticut, Hawaii, Maryland,
        Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Utah, Virginia, Washington, and Wyoming, as well as Puerto
        Rico.
1       Order Appointing Gender Bias Reform Implementation Committee, Misc. Docket No. 94–9175 (Oct. 18, 1994).
2       Oral argument of T.L. Rees, Sr., counsel for Colorado Independent School District, November 16, 1994.
3       Id.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   9
Barber v. Colorado Independent School Dist., 901 S.W.2d 447 (1995)
64 USLW 2043, 101 Ed. Law Rep. 1241, 58 A.L.R.5th 799, 38 Tex. Sup. Ct. J. 902



End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       10
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

                                                                        fractured led to necessity of two additional
                                                                        surgeries. Vernon's Ann.Texas Civ.St. art. 4590i,
                      79 S.W.3d 48
                                                                        § 13.01(l), (r)(6).
                 Supreme Court of Texas.
                                                                        207 Cases that cite this headnote
         BOWIE MEMORIAL HOSPITAL a/
          k/a Bowie Hospital District d/b/a
       Bowie Hospital District Authority d/b/                     [2]   Health
       a Bowie Memorial Hospital, Petitioner,                               Affidavits of merit or meritorious defense;
                         v.                                             expert affidavits
   Barbara WRIGHT and P.L. Wright, Respondents.                         For an expert's report to constitute a “good-
                                                                        faith effort” to comply with statutory definition
            No. 01–0814.       |   June 13, 2002.                       of an expert report, pursuant to the Medical
                                                                        Liability and Insurance Improvement Act, report
Patient brought medical malpractice action against hospital,            must provide enough information to fulfill two
physician, physician's assistant, and others, alleging that             purposes: (1) report must inform defendant
failure to timely discover that her foot was fractured led to           of specific conduct plaintiff has called into
necessity of two additional surgeries. The 78th District Court,         question, and (2) equally important, report must
Wichita County, Keith Nelson, J., dismissed patient's claims.           provide basis for trial court to conclude that
Patient appealed. The Fort Worth Court of Appeals, 48 S.W.              claims have merit. Vernon's Ann.Texas Civ.St.
3d 443, affirmed in part, reversed in part, and remanded. Upon          art. 4590i, § 13.01(l), (r)(6).
grant of hospital's petition for review, the Supreme Court held
that expert report submitted by patient did not constitute a            253 Cases that cite this headnote
good-faith effort to summarize causal relationship between
hospital's alleged failure to meet applicable standards of care
                                                                  [3]   Health
and patient's injury under Medical Liability and Insurance
                                                                            Affidavits of merit or meritorious defense;
Improvement Act.
                                                                        expert affidavits

Reversed.                                                               In determining the adequacy of an expert
                                                                        report under the Medical Liability and Insurance
                                                                        Improvement Act, the trial court should look
                                                                        no further than the report. Vernon's Ann.Texas
 West Headnotes (8)                                                     Civ.St. art. 4590i, § 13.01(l).

                                                                        10 Cases that cite this headnote
 [1]    Health
            Affidavits of merit or meritorious defense;
        expert affidavits                                         [4]   Health
                                                                            Affidavits of merit or meritorious defense;
        Expert report submitted by patient did not
                                                                        expert affidavits
        constitute a good-faith effort to summarize
        causal relationship between hospital's alleged                  For an expert's report to satisfy the requirements
        failure to meet applicable standards of care                    of the Medical Liability and Insurance
        and patient's injury under Medical Liability                    Improvement Act, the report need not marshal
        and Insurance Improvement Act; report lacked                    all the plaintiff's proof, but it must include the
        information linking expert's conclusion, which                  expert's opinion on each of the three elements
        was that patient might have had a better outcome,               that the Act identifies: standard of care, breach,
        to hospital's alleged breach, which was that                    and causal relationship. Vernon's Ann.Texas
        it did not correctly read and act upon x-rays,                  Civ.St. art. 4590i, § 13.01(l).
        thus requiring dismissal of patient's medical
                                                                        114 Cases that cite this headnote
        malpractice action against hospital, alleging that
        failure to timely discover that her foot was


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833


 [5]    Health                                                Attorneys and Law Firms
            Affidavits of merit or meritorious defense;
        expert affidavits                                     *50 Gregory J. Lensing, Charles T. Frazier, Jr. Cowles &
                                                              Thompson, Dallas, Susan Irene Nelson, Dallas, for Petitioner.
        In determining the adequacy of an expert
        report under the Medical Liability and Insurance      Britta Jean Gordon, Michael Kevin Queenan, Queenan Law
        Improvement Act, a report cannot merely state         Firm, DeSoto, for Respondents.
        the expert's conclusions about standard of care,
        breach, and causal relationship; rather, the expert   Opinion
        must explain the basis of his statements to link
        his conclusions to the facts. Vernon's Ann.Texas      PER CURIAM.
        Civ.St. art. 4590i, § 13.01(l).
                                                              This case involves the Medical Liability and Insurance
        213 Cases that cite this headnote                     Improvement Act's (“the Act”) expert-report requirements.
                                                              See TEX.REV.CIV. STAT. art. 4590i, § 13.01. The trial
                                                              court dismissed the plaintiffs' medical malpractice claims
 [6]    Appeal and Error                                      after it determined that their expert report did not satisfy
           Rulings on Motions Relating to Pleadings           the Act's requirements. The court of appeals concluded that
        Trial court's order dismissing a claim for failure    the trial court abused its discretion when it dismissed the
        to comply with Medical Liability and Insurance        plaintiffs' claims, because the expert report represented a
        Improvement Act's requirements for an expert          good-faith effort to comply with the Act. 48 S.W.3d 443, 448.
        report is reviewed under an abuse-of- discretion      We disagree. Accordingly, we reverse the court of appeals'
        standard. Vernon's Ann.Texas Civ.St. art. 4590i,      judgment and dismiss with prejudice the Wrights' claims
        § 13.01(l), (r)(6).                                   against Bowie Memorial Hospital.

        71 Cases that cite this headnote                      Barbara Wright was admitted to Bowie after she sustained
                                                              injuries in a car accident. While at Bowie, Michael Layne, a
 [7]    Appeal and Error                                      physician's assistant that Bowie employed, x-rayed Barbara's
           Abuse of discretion                                right knee and foot and diagnosed her with a fractured patella.
                                                              However, Layne allegedly misplaced or misread the foot x-
        A trial court abuses its discretion if it acts in
                                                              ray and, therefore, did not discover that Barbara had also
        an arbitrary or unreasonable manner without
                                                              fractured her right foot in the accident. Shortly after Barbara
        reference to any guiding rules or principles.
                                                              was admitted to Bowie, Dr. Hodde, Layne's supervisor,
        164 Cases that cite this headnote                     recommended that Bowie refer her to an orthopedic surgeon.
                                                              Barbara was immediately referred to an orthopedic surgeon
                                                              and transferred to another hospital. Her accompanying
 [8]    Appeal and Error
                                                              medical report, which Layne prepared, only indicated that
           Power to Review
                                                              Barbara had a fractured knee.
        When reviewing matters committed to the trial
        court's discretion, a court of appeals may not        Nearly a month after the accident, Barbara's orthopedic
        substitute its own judgment for the trial court's     surgeon discovered Barbara's fractured foot. By that time, the
        judgment.                                             surgeon had already operated on Barbara's knee. The Wrights
                                                              claim that the surgeon could have operated on Barbara's
        84 Cases that cite this headnote
                                                              foot at the same time if he had known about the injury.
                                                              Instead, Barbara had two additional surgeries over the next
                                                              ten months.

                                                              Barbara and her husband sued Bowie, Layne, and Dr.
                                                              Hodde for medical malpractice. The Wrights also sued
                                                              the orthopedic surgeon, another treating doctor, and three



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

medical clinics not associated with Bowie. The Wrights'             Nevertheless, the Wrights claimed that, if Bowie's report had
allegations pertinent here are that Bowie personnel did not:        indicated that Barbara had a broken foot, it would have been
diagnose Barbara's foot fracture; protect her foot; review          “much easier” for the orthopedic doctor to make a proper
diagnostic tests ordered and administered at the hospital; or       diagnosis. After the second hearing, the trial court granted
properly supervise Layne.                                           Bowie's motion to dismiss. The record indicates that the trial
                                                                    court did not believe the Wrights' claims against Bowie, “the
The Wrights filed an expert medical report about Bowie's,           people who transferred [Barbara],” had merit, given that the
Dr. Hodde's, and another doctor's alleged negligence. See           orthopedic surgeon “could have done his own work.”
TEX.REV.CIV. STAT. art. 4590i, § 13.01(d). The expert
report states, in part:                                             The court of appeals reversed and remanded, holding that
                                                                    the trial court abused its discretion when it dismissed the
  I have reviewed the material you sent me on the above             Wrights' claims against Bowie. 48 S.W.3d at 448. The
  case. I believe that the hospital fell below the appropriate      court concluded that the report inadequately summarizes
  standard of care in not having a defined mechanism in place       the causal relationship between Bowie's alleged negligence
  whereby x-rays taken in the E.R. are read by a physician          and Barbara's injury. However, it determined that the report
  specialized in interpreting the films in a timely manner (i.e.,   represents a good-faith effort to comply with the Act, because
  less than 24 hrs). X-rays taken in the E.R. need to have          it raises the possibility that, but for Bowie's breach, Barbara
  re-reads performed within 24 hrs and if *51 there is a            “would have had a better outcome.” 48 S.W.3d at 447.
  discrepency [sic] in the x-ray readings a system should be
  in place to inform the patient of this. There did not appear to    [1]    Medical-malpractice plaintiffs must provide each
  be any procedure that the hospital has for tracking x-rays.       defendant physician and health-care provider an expert report
  The hospital also doesn't seem to have a system of orienting      with the expert's curriculum vitae, or they must voluntarily
  health care professionals working in the E.R. nor any form        nonsuit the action. See TEX.REV.CIV. STAT. art. 4590i, §
  of Q/A for P.A.'s staffing the E.R. There didn't appear to        13.01(d); American Transitional Care Ctrs. of Tex., Inc. v.
  be any organized system or protocols for P.A. supervision         Palacios, 46 S.W.3d 873, 877 (Tex.2001). The expert report
  in the E.R.                                                       must provide “a fair summary of the expert's opinions as of
                                                                    the date of the report regarding applicable standards of care,
  ...
                                                                    the manner in which the care rendered by the physician or
  I do believe that it is reasonable to believe that if the x-      health care provider failed to meet the standards, and the
  rays would have been correctly read and the appropriate           causal relationship between that failure and the injury, harm,
  medical personnel acted upon those findings then Wright           or damages claimed.” TEX.REV.CIV. STAT. art. 4590i,
  would have had the possibility of a better outcome.               § 13.01(r)(6). If a plaintiff timely files an expert report
                                                                    and the defendant moves to dismiss because of the report's
Bowie moved to dismiss the Wrights' claims, alleging                inadequacy, the trial court must grant the motion “only if it
that the expert report “fails to establish how any act or           appears to the court, after hearing, that the report does not
omission of employees of Bowie Memorial Hospital caused             represent a good faith effort to comply with the definition of
or contributed to Ms. Wright's injuries.” Therefore, Bowie          an expert report in Subsection (r)(6) of this *52 section.”
argued, the report does not satisfy the Act's requirements.         TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ) (emphasis
                                                                    added).
The trial court held two hearings to determine if the report
represents a good-faith effort to meet the Act's requirements.       [2]     We recently discussed the Act's expert-report
See TEX.REV.CIV. STAT. art. 4590i, § 13.01(l ). At                  requirement for medical-malpractice cases. See Palacios,
the first hearing, the trial court asked about the causal           46 S.W.3d at 877–80. In Palacios, we explained that,
relationship between Bowie's conduct and Barbara's injury.          when considering a motion to dismiss under section 13.01(l
The Wrights explained that if Bowie had diagnosed Barbara's         ), “[t]he issue for the trial court is whether ‘the report’
fractured foot earlier, then she “probably would have had           represents a good-faith effort to comply with the statutory
a better outcome.” They also conceded that the orthopedic           definition of an expert report.” Palacios, 46 S.W.3d at 878.
specialist Barbara saw immediately after leaving Bowie              To constitute a “good-faith effort,” the report must provide
“had an independent duty to verify” Bowie's medical report.         enough information to fulfill two purposes: (1) it must inform



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

the defendant of the specific conduct the plaintiff has called  expert report must fulfill Palacios 's two-part test. See
into question, and (2) it must provide a basis for the trial court
                                                                Palacios, 46 S.W.3d at 879. Thus, under the Palacios test,
to conclude that the claims have merit. Palacios, 46 S.W.3d     we must determine whether the trial court acted unreasonably
at 879.                                                         and without reference to guiding principles when it dismissed
                                                                the Wrights' claims against Bowie. See Downer, 701 S.W.2d
 [3] [4] [5] The trial court should look no further than at 241–42.
the report itself, because all the information relevant to the
inquiry is contained within the document's four corners.        The Wrights primarily rely on one statement in the report to
Palacios, 46 S.W.3d at 878. The report need not marshal all     establish causation: “if the x-rays would have been correctly
the plaintiff's proof, but it must include the expert's opinion read and the appropriate medical personnel *53 acted upon
on each of the three elements that the Act identifies: standard those findings then Wright would have had the possibility
of care, breach, and causal relationship. Palacios, 46 S.W.3d   of a better outcome.” In their brief to this Court, the
at 878. A report cannot merely state the expert's conclusions   Wrights contend that this statement “explains why Petitioners'
about these elements. Palacios, 46 S.W.3d at 879. “[R]ather,    damages were caused by Bowie Hospital's breach: if the
the expert must explain the basis of his statements to link his proper medical personnel at Bowie had reviewed the x-rays,
conclusions to the facts.” Earle v. Ratliff, 998 S.W.2d 882,    [Barbara] would have had a chance of diagnosis and treatment
890 (Tex.1999).                                                 of her foot fracture.”

 [6] [7] [8] We review a trial court's order dismissing a Bowie responds that the report's statement about causation is
claim for failure to comply with section 13.01(d)'s expert-     conclusory, because it does not explain how Bowie's failing to
report requirements under an abuse-of-discretion standard.      correctly read or act upon the x-rays caused injury to Barbara.
Palacios, 46 S.W.3d at 878. A trial court abuses its discretion Moreover, Bowie asserts, the statement does not even identify
if it acts in an arbitrary or unreasonable manner without       the specific injuries Bowie's conduct allegedly caused.
reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42              In reviewing the report's adequacy, the court of appeals
(Tex.1985). When reviewing matters committed to the trial       focused on “whether the report provides a basis to conclude
court's discretion, a court of appeals may not substitute its   that the claims have merit.” 48 S.W.3d at 447 (citing
own judgment for the trial court's judgment. See Flores v.      Palacios, 46 S.W.3d at 878–79). Although the causation
Fourth Ct. of Appeals, 777 S.W.2d 38, 41 (Tex.1989).            statement recognizes only the “possibility”—rather than the
                                                                “reasonable medical probability”—that Barbara might have
Here, the parties do not dispute that the expert report fairly  had a better outcome, the court of appeals concluded that the
summarizes the alleged standard of care, because it states      report's adequacy should not turn “solely upon the claimant's
that a hospital should have established procedures to read      failure to use magical words like ‘reasonable probability.’ ”
and interpret x-rays in a timely manner and to inform           48 S.W.3d at 447. Accordingly, the court of appeals held that
patients about the results. See TEX.REV.CIV. STAT. art.         the report met the good-faith effort test, because it gave the
4590i, § 13.01(r)(6). Also, the parties do not dispute that the trial court a basis to conclude that the Wrights' claims against
report fairly summarizes how Bowie allegedly breached the       Bowie have merit. 48 S.W.3d at 448.
standard of care, because the report states that Bowie did not
have a procedure to track x-rays. See TEX.REV.CIV. STAT.        We agree with the court of appeals' conclusion that a
art. 4590i, § 13.01(r)(6). Consequently, the parties only       report's adequacy does not depend on whether the expert uses
contest whether the report constitutes a “good-faith effort”    any particular “magical words.” Nothing in the Act's plain
to fairly summarize the causal relationship between Bowie's     language, or in Palacios, suggests that, for these purposes,
alleged breach and Barbara's injury. See TEX.REV.CIV.           an expert report must express the causal relationship in terms
STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at 879.    of “reasonable medical probability.” However, we disagree
                                                                with the court of appeals' conclusion that the trial court
Contrary to the court of appeals' conclusion, it is not enough  abused its discretion in dismissing the Wrights' claims against
that the expert report “provided insight” about the plaintiff's Bowie. We have held that the only information relevant to
claims. See 48 S.W.3d at 447. Rather, to constitute a good-     whether a report represents a good-faith effort to comply with
faith effort to establish the causal-relationship element, the  the statutory requirements is the report itself. Palacios, 46



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          4
Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48 (2002)
45 Tex. Sup. Ct. J. 833

                                                                      trial court could have reasonably determined that the report
S.W.3d at 878. And, we have held that we review a trial court's
                                                                      was conclusory. See Palacios, 46 S.W.3d at 880; Earle, 998
decision about whether a report constitutes a good-faith effort
                                                                      S.W.2d at 890. A conclusory report does not meet the Act's
to comply with the Act under an abuse-of-discretion standard.
                                                                      requirements, because it does not satisfy the Palacios test.
Palacios, 46 S.W.3d at 878.
                                                                      Palacios, 46 S.W.3d at 879.
After reviewing this report, we conclude that the trial
                                                                       *54 For these reasons, we hold that the trial court did not
court could have reasonably determined that the report does
                                                                      abuse its discretion when it concluded that the report did not
not represent a good-faith effort to summarize the causal
                                                                      represent a good-faith effort to meet the Act's requirements.
relationship between Bowie's failure to meet the applicable
                                                                      Therefore, the trial court had no discretion but to dismiss
standards of care and Barbara's injury. See TEX.REV.CIV.
                                                                      the plaintiffs' claims against Bowie. See TEX.REV.CIV.
STAT. art. 4590i, § 13.01(r)(6); Palacios, 46 S.W.3d at
                                                                      STAT. art. 4590i, § 13.01(l ); Palacios, 46 S.W.3d at 880.
879. That is because the report simply opines that Barbara
                                                                      In reviewing the trial court's order, the court of appeals
might have had “the possibility of a better outcome” without
                                                                      improperly substituted its own judgment for the trial court's
explaining how Bowie's conduct caused injury to Barbara.
                                                                      judgment. See Flores, 777 S.W.2d at 41. Accordingly, we
We cannot infer from this statement, as the Wrights ask us to,
                                                                      grant Bowie's petition for review. Without hearing oral
that Bowie's alleged breach precluded Barbara from obtaining
                                                                      argument, we reverse the court of appeals' judgment and
a quicker diagnosis and treatment for her foot. Rather, the
                                                                      dismiss with prejudice the Wrights' claims against Bowie. See
report must include the required information within its four
                                                                      TEX.R.APP. P. 59.1.
corners. See TEX.REV.CIV. STAT. art. 4590i, § 13.01(r)
(6); Palacios, 46 S.W.3d at 878. Because the report lacks
information linking the expert's conclusion (that Barbara
                                                                      Parallel Citations
might have had a better outcome) to Bowie's alleged breach
(that it did not correctly read and act upon the x-rays), the         45 Tex. Sup. Ct. J. 833

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

                                                                            Presumptions and burden of proof
                     417 S.W.3d 94                                     Under the “traditional” standard for summary
                Court of Appeals of Texas,                             judgment, the movant has the initial burden
                         Austin.                                       of conclusively negating at least one essential
                                                                       element of a claim or defense on which the non-
            Tramel R. BRACEY, Appellant                                movant has the burden of proof of conclusively
                          v.                                           establishing each element of a claim or defense
         CITY OF KILLEEN, Texas; and Police                            on which the movant has the burden of proof;
           Chief Dennis Baldwin, Appellees.                            once the movant has done so, and only if it does,
                                                                       the burden shifts to the non-movant to produce
        No. 03–12–00199–CV.          |   Nov. 6, 2013.                 evidence creating a genuine issue of material
                                                                       fact as to the challenged element or elements in
Synopsis                                                               order to defeat the summary judgment. Vernon's
Background: City police officer sought review of decision of           Ann.Texas Rules Civ.Proc., Rule 166a(c).
hearing examiner upholding his indefinite suspension under
the Civil Service Act. The 169th Judicial District Court, Bell         Cases that cite this headnote
County, Rick Morris, J., entered summary judgment in favor
of city. Officer appealed.
                                                                 [3]   Appeal and Error
                                                                          Cases Triable in Appellate Court
                                                                       Appellate court reviews questions of statutory
Holdings: The Court of Appeals, Bob Pemberton, J., held                construction de novo.
that:
                                                                       Cases that cite this headnote
[1] district court had subject matter jurisdiction to
determine whether hearing examiner properly construed and
                                                                 [4]   Statutes
applied Government Code subchapter governing procedures
                                                                            Intent
applicable when law enforcement agencies are presented with
                                                                       A court's primary objective in statutory
a “complaint” against one of their officers, and
                                                                       construction is to give effect to the Legislature's
                                                                       intent.
[2] hearing examiner did not have jurisdiction to impose
reinstatement as an automatic remedy for violations of                 Cases that cite this headnote
Government Code subchapter.

                                                                 [5]   Statutes
Affirmed.                                                                   Language and intent, will, purpose, or
                                                                       policy
                                                                       A court seeks legislative intent first and foremost
 West Headnotes (19)                                                   in the statutory text.

                                                                       Cases that cite this headnote
 [1]    Appeal and Error
           Cases Triable in Appellate Court                      [6]   Statutes
        Appellate court reviews the district court's                        Statute as a Whole; Relation of Parts to
        summary judgment rulings de novo.                              Whole and to One Another
                                                                       A court conducting statutory construction is to
        Cases that cite this headnote
                                                                       consider a statute as a whole, interpreting it to
                                                                       give effect to every part.
 [2]    Judgment



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158


        Cases that cite this headnote                          [12]   Appeal and Error
                                                                          Particular orders or rulings reviewable in
                                                                      general
 [7]    Statutes
             Context                                                  Appeal and Error
                                                                         Rendering Final Judgment
        Statutory words cannot be examined in isolation,
        but must be informed by the context in which                  Where parties assert competing motions for
        they are used.                                                summary judgment on overlapping issues and
                                                                      the trial court grants one motion and denies
        Cases that cite this headnote                                 the other, the appellate court considers all of
                                                                      the summary-judgment evidence, determines all
                                                                      questions presented, and, if the trial court erred,
 [8]    Statutes
                                                                      renders the judgment the trial court should have
             Prior or existing law in general
                                                                      rendered.
        A court assumes that when enacting a statute, the
        Legislature was aware of the background law and               Cases that cite this headnote
        acted with reference to it.

        Cases that cite this headnote                          [13]   Officers and Public Employees
                                                                           Hearing and Determination
                                                                      Civil Service Act does not empower a hearing
 [9]    Statutes
                                                                      examiner to make rules. V.T.C.A., Local
             Purpose and intent; unambiguously
                                                                      Government Code § 143.001 et seq.
        expressed intent
        Where statutory text is clear, that text is                   1 Cases that cite this headnote
        determinative of legislative intent.

        Cases that cite this headnote                          [14]   Constitutional Law
                                                                          Delegation of Powers
                                                                      A delegation of power by the Legislature without
 [10]   Statutes
                                                                      reasonable standards to govern its exercise is an
              Plain language; plain, ordinary, common,
                                                                      abdication of the authority to set governmental
        or literal meaning
                                                                      policy which the Constitution assigns to the
        Statutes                                                      legislative department.
             Extrinsic Aids to Construction
        A court gives clear statutes their plain meaning              Cases that cite this headnote
        without resort to rules of construction or extrinsic
        aids.                                                  [15]   Constitutional Law
                                                                          To non-governmental entities
        Cases that cite this headnote
                                                                      Delegations of power to private entities are
                                                                      permissible under the Texas Constitution only if
 [11]   Statutes
                                                                      the legislative purpose is discernable and there
             Purpose and intent; determination thereof
                                                                      is protection against the arbitrary exercise of
        Only when statutory text is susceptible to                    power.
        more than one reasonable interpretation is it
        appropriate to look beyond its language for                   Cases that cite this headnote
        assistance in determining legislative intent.
                                                               [16]   Constitutional Law
        Cases that cite this headnote




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

            Presumptions and Construction as to
        Constitutionality                                             Cases that cite this headnote

        When faced with multiple constructions of a
        statute, a court must interpret the statutory
        language in a manner that renders it
        constitutional if it is possible to do so.            Attorneys and Law Firms

        Cases that cite this headnote                         *96 Mr. R. John Cullar, Cullar & McLeod, L.L.P., Waco,
                                                              TX, for Appellant.

 [17]   Officers and Public Employees                         Mr. Stuart Smith, Naman, Howell, Smith & Lee, P.L.L.C.,
             Hearing and Determination                        Waco, TX, for Appellee.
        A hearing examiner exceeds his jurisdiction in a
                                                              Before Justices PURYEAR, PEMBERTON, and FIELD.
        disciplinary action under the Civil Service Act
        when his acts are not authorized by the Act or
        are contrary to it, or when they invade the policy-
        setting realm protected by the nondelegation                                   OPINION
        doctrine. V.T.C.A., Local Government Code §
                                                              BOB PEMBERTON, Justice.
        143.057.
                                                              This appeal presents two sets of issues regarding statutes
        1 Cases that cite this headnote
                                                              that govern the employment relationship between Texas
                                                              police officers and the municipalities they serve. First, we
 [18]   Municipal Corporations                                must address the scope of the subject-matter jurisdiction
           Review in general                                  that the Legislature has conferred upon Texas courts to
        District court, reviewing hearing examiner's          review the decisions of independent hearing examiners under
        decision upholding city police officer's indefinite   the Civil Service Act. 1 Second, assuming we determine
        suspension under the Civil Service Act, had           that Texas courts have jurisdiction to reach the question
        subject matter jurisdiction to determine whether      in the context of an appeal from a hearing examiner's
        hearing examiner properly construed and               decision, we must consider the relationship between (1) the
        applied Government Code subchapter governing          notice-and-hearing requirements applicable to disciplinary
        procedures applicable when law enforcement            suspensions and dismissals under the Civil Service Act, 2 and
        agencies are presented with a “complaint”             (2) Subchapter B of Government Code chapter 614, which
        against one of their officers. V.T.C.A., Local        prohibits “disciplinary action” against a police officer based
        Government Code §§ 143.057, 614.021.                  on a “complaint” unless the “complaint” is reduced to writing,

        1 Cases that cite this headnote                       signed, and provided to the officer. 3 More specifically,
                                                              we must decide whether an independent hearing examiner
                                                              “exceeded her jurisdiction” within the *97 meaning of the
 [19]   Municipal Corporations                                Civil Service Act's judicial-review provisions in upholding
           Review in general                                  a police officer's indefinite suspension (i.e., dismissing
        Hearing examiner reviewing city police officer's      him) when the disciplinary action fully complied with the
        indefinite suspension under the Civil Service         requirements specified within the Civil Service Act, yet
        Act lacks jurisdiction to impose reinstatement        originated with “complaints” that were not reduced to writing,
        as an automatic remedy for violations                 signed, and provided to the officer as Subchapter B requires.
        of Government Code subchapter governing               Under the circumstances here, we conclude that the examiner
        procedures applicable when law enforcement            acted within her jurisdiction.
        agencies are presented with a “complaint”
        against one of their officers. V.T.C.A., Local
        Government Code §§ 143.057, 614.021.
                                                                                   BACKGROUND



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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

Before turning to the specific dispute underlying this appeal,     In addition to providing such notice regarding the department
it is helpful to begin with a brief overview of the statutory      head's asserted grounds for suspension, the copy of the
context from which it arose.                                       statement or letter given to the officer must also give notice
                                                                   regarding the officer's rights to appeal the suspension, 11
                                                                   which we will describe shortly. However, in contrast to
Civil Service Act
                                                                   the notice requirements regarding the grounds for the
In municipalities that have voted to adopt it, the Civil
                                                                   suspension, the Act does not prescribe any particular remedy
Service Act—nowadays codified as chapter 143 of the Local
                                                                   or consequences for failure to provide the required notice of
Government Code—supplants at-will employment of police
                                                                   appeal rights.
officers with a regime of merit-based, just-cause employment
that is intended to “secure efficient ... police departments
                                                                   The department head's suspension of a police officer is subject
composed of capable personnel who are free from political
                                                                   to appeal through two alternative procedural mechanisms.
influence and who have permanent employment tenure as
                                                                   First, the officer may appeal the suspension—including the
public servants.” 4 The regime is administered by a local          “truth of the charge[s] as made” in the department head's
civil service commission whose duties include promulgating         written statement, “the legal sufficiency of the charge[s],” and
rules that prescribe, within statutory parameters, the acts or     the discipline that should be imposed for any rule violations—
conditions that constitute cause for suspending or removing a      through an evidentiary hearing before the municipality's civil
police officer from employment. 5 Of particular significance       service commission. 12 At the hearing, the department head
to this appeal are the Act's procedures and limitations            “is restricted to [his or her] original written statement and
governing determination of whether such cause exists and the
                                                                   charges, which may not be amended.” 13 The commission
appropriate personnel actions in response, which for purposes
of this case are found primarily within subchapter D of            “may consider only the evidence submitted at the hearing” 14

chapter 143, titled “Disciplinary Actions.” 6                      and “shall render a just and fair decision.” 15 The commission
                                                                   has discretion to: (1) “permanently dismiss[ ]” the officer
In relevant part, the Act authorizes the head of a police          from the police department; 16 (2) order a temporary
department to suspend a police officer within his supervision      suspension of the officer for a period not to exceed fifteen
or jurisdiction for “a reasonable period not to exceed             days; 17 or (3) “restore” the officer to his or her former
15 calendar days” or “an indefinite period,” the latter            position—i.e., return to duty without any suspension—with
being “equivalent to dismissal,” “for the violation of a           back pay and benefits for the period in which the officer was
civil service rule.” 7 Upon suspending an officer, the             suspended. 18 But the commission has discretion to impose
department head must, within 120 hours of the suspension,          dismissal or temporary suspension, as opposed to restoration,
file with the municipality's civil service commission a            “only for violation[s] of civil service *99 rules and only after
“written statement,” also termed a “letter of disciplinary         a finding by the commission of the truth of specific charges
action,” “giving the reasons for the suspension,” and also
                                                                   against the ... police officer.” 19
“immediately deliver a copy of the statement in person to
the suspended ... police officer.” 8 This statement or letter      Alternatively, the officer may bring the appeal before an
“must point out each civil service rule alleged to have been
                                                                   independent hearing examiner, 20 a forum often perceived to
violated by the suspended ... police officer” and “describe the
                                                                   present less risk of pro-employer bias than the municipality's
alleged acts of the person that the department head contends
are in violation of the civil service rules,” and “[i]t is *98     civil service commission. 21 The hearing examiner is chosen
not sufficient for the department head merely to refer to the      either by agreement of the officer and department head or
                                                                   through a process of selection from a list of “seven qualified
provisions of the rules alleged to have been violated.” 9 “If
                                                                   neutral arbitrators” obtained from the American Arbitration
the department head does not specifically point out in the
                                                                   Association (AAA) or the Federal Mediation and Conciliation
written statement the act or acts of the ... police officer that
allegedly violated the civil service rules,” the Act mandates      Service (FMCS). 22 Once selected, the examiner “has the
that the civil service commission “shall promptly reinstate the    same duties and powers as the commission,” 23 including the
person.” 10                                                        requirement that he or she hear evidence, 24 and has the same
                                                                   discretion in regard to discipline. 25


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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

                                                                     Section 614.023 further prohibits the indefinite suspension or
The Act provides a right of further appeal or judicial review in     termination of an officer “based on the subject matter of the
district court, but the scope of that review varies dramatically     complaint unless: (1) the complaint is investigated; and (2)
depending on whether the officer has chosen to proceed               there is evidence to prove the allegation of misconduct.” 34
before a civil service commission versus an independent
hearing examiner. If the officer has opted to appeal to              Prior to September 1, 2005, Subchapter B applied, in
the civil service commission, the Act allows the officer, if         pertinent part, to a “complaint” against “a police officer
“dissatisfied” with the commission's decision, to obtain trial
                                                                     who is not covered by a civil service statute.” 35 However,
de novo in the district court, and that court is empowered
                                                                     in its regular session earlier that year, the Seventy–Ninth
to “grant the appropriate legal and equitable relief necessary
                                                                     Legislature broadened this facet of the statute's coverage to
to carry out the purposes of [the Act].” 26 In contrast, the         include “a peace officer under Article 2.12, Code of Criminal
Act makes a hearing examiner's decision “final and binding           Procedure, or other law who is appointed or employed by
on all parties,” and the officer's election to proceed in that       a political subdivision of this state,” and excluding only
forum is deemed to waive his rights of further appeal, except        those “appointed or employed by a political subdivision that
to the extent of the following limited grant of subject-matter       is covered by a meet and confer or collective bargaining
jurisdiction to the district court:                                  agreement ... if that agreement includes provisions relating to
                                                                     the investigation of, and disciplinary actions resulting from,

      A district court may hear an appeal of a hearing examiner's    a complaint against a peace officer ....” 36 Consequently,
      award only on the grounds that the arbitration panel           Subchapter B in its amended form facially extends to at least
                                                                     some law enforcement officers who are covered by the Civil
      [i.e., the hearing examiner 27 ] was without jurisdiction or
                                                                     Service Act and who, for that reason, would previously have
      exceeded its jurisdiction or that the order was procured by
                                                                     been explicitly excluded from Subchapter B's coverage. The
      fraud, collusion, or other unlawful means. 28                  implications of this change are at the center of this appeal.

Subchapter B
Subchapter B of Government Code chapter 614 imposes                  The dispute
regulations—including a type of notice requirement—that              Appellant Tramel Bracey was formerly an officer with
apply when certain law enforcement agencies are presented            the police department of the City of Killeen, appellee.
with a “complaint” against one of their officers. 29 Although        Killeen is among the municipalities that have adopted the
Subchapter B does not define or elaborate on the nature of a         Civil Service Act, and it is the Act, not a meet-and-
“complaint,” a panel of this Court has construed the term to         confer or collective-bargaining agreement, that governs its
encompass “any allegation of misconduct that could result in         employment relationship with its police officers. *101 There
disciplinary action,” regardless *100 whether the source is          is no dispute that Bracey was fully entitled to the civil-service
external to the law enforcement agency or originates within          protections that the Act provides to Killeen police officers, 37
      30
it.                                                                  or that he likewise came within the coverage of Subchapter
                                                                     B in its current form as “a peace officer ... appointed or
Within Subchapter B, section 614.022 specifies that in order         employed by a political subdivision” (Killeen) who was not
for a “complaint” “[t]o be considered by the head of a ... local     excluded by virtue of a labor agreement. 38
law enforcement agency,” it must be “in writing” and “signed
by the person making the complaint.” 31 Section 614.023, in          In December 2010, following an internal investigation, the
turn, requires that “[a] copy of a signed complaint ... shall be     head of Killeen's police department—Police Chief Dennis
given to the officer or employee within a reasonable time after      Baldwin, appellee—indefinitely suspended Bracey based on
the complaint is filed,” 32 and that:                                his alleged violation of several Killeen civil service rules.
                                                                     In accordance with the Civil Service Act, Chief Baldwin
                                                                     prepared, filed, and delivered to Bracey a letter of disciplinary
      Disciplinary action may not be taken against the officer or    action detailing the civil service rules that Baldwin contended
      employee unless a copy of the signed complaint is given to     Bracey had violated and the alleged acts that Baldwin viewed
      the officer or employee. 33                                    as constituting such violations. To summarize this letter,



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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

Baldwin alleged that Bracey had violated the cited rules,         nonetheless “exceeded his jurisdiction” under the Act by
some of which incorporated police department general orders       reinstating an indefinitely suspended police officer on the sole
and Penal Code provisions, by providing false information         basis that “complaints” required by Subchapter B had not
when opening two bank accounts, 39 then subsequently              been provided to the officer. 45
being “untruthful” about the underlying events. As factual
support for these allegations, Baldwin referenced evidence        Bracey then appealed the hearing examiner's decision to
purportedly compiled during a search of Bracey's home             district court. In attempting to invoke the district court's
by Killeen Police Detective Charles Dinwiddie 40 and              limited jurisdiction over such appeals, Bracey asserted that
through interviews conducted by an investigator, Captain Jeff     the examiner had “exceeded her jurisdiction” by “ignoring”
                                                                  the mandates of Subchapter B and dismissing rather than
Fholer. 41
                                                                  reinstating him. He prayed that the court sustain his appeal
                                                                  and award him reinstatement with back pay and benefits, plus
Bracey timely perfected an appeal of his suspension and
                                                                  attorney's fees. Additionally, based on the same underlying
opted to proceed before an independent hearing examiner
                                                                  allegations, Bracey asserted claims under the Uniform
rather than Killeen's civil service commission. Before the
hearing examiner, Bracey contested both the merits of the         Declaratory Judgments Act 46 against Chief Baldwin, in
allegations against him and, as a threshold matter, whether       his official capacity, seeking declarations that Baldwin had
he was subject to discipline in the first place. While not        violated Subchapter B. Along with his requested declarations,
complaining of any deficiency in the letter of disciplinary       Bracey purported to seek “equitable and mandamus relief” of
action Bracey had provided him under the Civil Service Act        reinstatement, salary, and benefits, plus attorney's fees.

or seeking reinstatement on that basis, 42 Bracey insisted that
                                                                  Appellees answered and filed a motion for final summary
Baldwin had failed to comply with the notice requirements
                                                                  judgment on all of Bracey's claims, asserting two related
imposed by Subchapter B. More specifically, Bracey urged
                                                                  grounds. First, relying primarily on “the holding and
that the factual allegations originating with the two fellow
                                                                  reasoning in City of Athens v. MacAvoy,” appellees argued
officers who had investigated his alleged misconduct, Captain
                                                                  that the hearing examiner had not “exceeded her jurisdiction”
Fholer and Detective Dinwiddie, constituted “complaints”
                                                                  in refusing to reinstate Bracey based on their alleged failure to
that Subchapter B required to be reduced to writing,
                                                                  comply with Subchapter B, but instead had no “jurisdiction”
signed, and provided to him. Because these actions had
                                                                  to award him reinstatement on that basis. Second, in
never been performed, according to Bracey, his suspension
                                                                  what they phrased in terms of an “arbitration and award”
violated Subchapter B's proviso that “[d]isciplinary action
                                                                  defense, appellees argued that the hearing examiner's decision
may not be taken against the officer or employee unless
                                                                  foreclosed Bracey's declaratory claims by resolving the same
a copy of the signed complaint is given to the officer
                                                                  underlying issue. “Regardless of whether the City violated
or employee.” 43 Accordingly, *102 Bracey reasoned,               [Subchapter B],” appellees urged, “[Bracey] received a civil
Subchapter B mandated that he be reinstated.                      service hearing and presented the appeal of the suspension to
                                                                  the Hearing Examiner.”
Following the evidentiary hearing, the examiner found that
Bracey had violated all of the civil service rules that Chief     Bracey responded and also filed a cross-motion for partial
Baldwin had charged and that “[t]he facts in evidence support     summary judgment seeking to establish, as a matter of law,
the ... indefinite suspension.” The examiner rejected Bracey's    that Subchapter B applied to him; that no written, signed
arguments regarding Subchapter B, citing City of Athens           “complaint” from either Dinwiddie or Fholer had ever been
v. MacAvoy, 44 and further observed that Bracey “has had          provided to him; that this failure violated Subchapter B
ample opportunity to defend himself and bring forth facts in      and triggered the statute's prohibition against “disciplinary
the investigation for the investigators, the decision makers      action”; and that—joining issue with appellees' motion—
and ultimately the hearing examiner to deliberate.” We will       the hearing examiner's failure to enforce this prohibition
explore the MacAvoy case in detail as it becomes relevant         “exceeded her jurisdiction” and rendered the error subject
to our analysis, but to summarize its holdings, the Tyler         to *103 judicial review and correction. In support of
Court of Appeals concluded that while Subchapter B applies        his motion, Bracey presented copies of admissions and
to the discipline upheld or imposed by an independent             deposition testimony from appellees confirming that he came
hearing examiner under the Civil Service Act, an examiner         within the coverage of Subchapter B and that no signed,


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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

written allegations from either Dinwiddie or Fholer had ever       isolation, but must be informed by the context in which
been given to him. Appellees filed a response to Bracey's          they are used. 56 We assume that when enacting a statute,
cross-motion that was substantively an exact duplicate of their    the Legislature was aware of the background law and acted
own summary-judgment motion.
                                                                   with reference *104 to it. 57 “Where text is clear, text is

The district court granted appellees' summary-judgment             determinative” of legislative intent. 58 We give such statutes
motion, denied Bracey's competing motion, and rendered             their plain meaning without resort to rules of construction
final judgment dismissing Bracey's claims with prejudice. It       or extrinsic aids. 59 Only when statutory text is susceptible
is from this judgment that Bracey appeals.                         to more than one reasonable interpretation is it appropriate
                                                                   to look beyond its language for assistance in determining
                                                                   legislative intent. 60
                         ANALYSIS
                                                                    [12] Where, as here, parties assert competing motions for
In two issues, Bracey contends that the district court erred       summary judgment on overlapping issues and the trial court
in granting the appellees' summary-judgment motion and             grants one motion and denies the other, we consider all
denying his cross-motion.                                          of the summary-judgment evidence, determine all questions
                                                                   presented, and, if the trial court erred, render the judgment the
                                                                   trial court should have rendered. 61
Standard of review
 [1] [2] We review the district court's summary judgment
rulings de novo. 47 Summary judgment is proper when there          Appeal of hearing examiner's decision
are no disputed issues of material fact and the movant is          As previously noted, the Civil Service Act confers subject-
entitled to judgment as a matter of law. 48 We take as true        matter jurisdiction on district courts to review hearing
all evidence favorable to the non-movant, and we indulge           examiner decisions only on grounds that the examiner “was
every reasonable inference and resolve any doubts in the           without jurisdiction or exceeded [his or her] jurisdiction
                                                                   or that the order was procured by fraud, collusion, or
non-movant's favor. 49 Under the “traditional” standard for
summary judgment—the standard on which both sides have             other unlawful means.” 62 These grounds likewise define
relied—the movant has the initial burden of conclusively        the bases for judicial relief in such an appeal. 63 Bracey's
negating at least one essential element of a claim or defense oncentral contentions on appeal, as they were below, are that
which the non-movant has the burden of proof or conclusively    appellees violated Subchapter B of Government Code chapter
establishing each element of a claim or defense on which the    614 by failing to provide him written, signed “complaints”
                                  50                            from Detective Dinwiddie and Captain Fholer; that these
movant has the burden of proof. Once the movant has done
so, and only if it does, the burden shifts to the non-movant to omissions further triggered Subchapter B's prohibition
produce evidence creating a genuine issue of material fact as   against “[d]isciplinary action ... taken against the officer or
to the challenged element or elements in order to defeat the    employee unless a copy of the signed complaint is given to
                      51                                        the officer or employee”; and that the hearing examiner's
summary judgment.
                                                                failure or refusal to enforce Subchapter B by reinstating
                                                                him amounted to conduct “exceeding her jurisdiction” that
 [3] [4] [5] [6] [7] [8] [9] [10] [11] However, as
                                                                is susceptible to judicial review and correction under the
will become apparent as we proceed with our analysis, the
                                                                Civil Service Act. Bracey does not assert that the hearing
propriety of summary judgment in this case turns principally
                                                                examiner's decision “was procured by fraud, collusion, or
upon the application of statutory language to undisputed
                                                                other unlawful means” or that the examiner “was without
material facts. We review questions of statutory construction
                                                                jurisdiction” to decide his appeal of the suspension in the
de novo. 52 Our primary objective in statutory construction     first instance. It is also worth noting that Bracey does not
                                                53
is to give effect to the Legislature's intent.     We seek that dispute, apart from his contentions in reliance on Subchapter
                                                     54         B, that the acts of the hearing examiner were within her
intent “first and foremost” in the statutory text.      We are
to consider the statute as a whole, interpreting it to give     “jurisdiction” under the Civil Service Act and that appellees
                                                                likewise fully complied with the Act's requirements. He
effect to every part. 55 The words cannot be examined in
                                                                does not complain, for example, that Chief Baldwin's letter


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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

of suspension failed to give the notice of “the act or acts         Consequently, the Civil Service Act could, as with arbitration
of the ... police officer that allegedly violated the civil         awards, potentially insulate from judicial review not only
service rules” mandated by the *105 Act, 64 that he was             factual errors by a hearing examiner, but a wide range of

entitled to reinstatement for that reason, 65 or that the hearing   legal ones as well. 70 In fact, several of our sister courts,
examiner “exceeded her jurisdiction” (apart from his view           taking a cue *106 from arbitration decisions, had previously
of Subchapter B's implications) in determining, based on the        construed the Act that way. 71 But, in its recent decisions,
evidence presented, that Bracey had violated each of the civil      the Texas Supreme Court expressly disapproved of these
service rules Chief Baldwin had charged and that dismissal          cases and the underlying notion that judicial review of
was the appropriate disciplinary sanction for the misconduct        hearing examiner decisions works the same way as review
she had found.                                                      of arbitration awards, 72 reasoning that the “jurisdiction” of
                                                                    a Civil Service Act hearing examiner—and thus the range of
In response, appellees bring forward their arguments that           decisions that are insulated from judicial review—is much
the hearing examiner did not “exceed her jurisdiction” in           narrower than that of the typical arbitrator. The court has
dismissing Bracey regardless of whether they complied               pointed to two basic reasons for this.
with Subchapter B. On appeal, however, appellees further
suggest (contrary to Treadway 66 ) that Subchapter B applies         [13]    First, the high court has observed that while
only to “citizen complaints” and that, in any event, they           arbitrators usually derive their authority from broadly worded
complied with the statute by providing Bracey the required          contractual agreements, and that these powers are further
written “complaints” in the form of Chief Baldwin's letter          augmented by legal principles favoring arbitration, “an
of suspension, a prior “Charging Memorandum signed by               independent hearing examiner's jurisdiction is created by
his chain of command,” and “a copy of the personnel                 the Act and comes with significant constraints.” 73 These
complaint form which initiated the internal investigation.”         constraints include numerous “deadlines, procedures, and
But, as Bracey emphasizes, appellees did not contest the            limitations” under the Act that “both confer[ ] and limit[ ]
applicability of Subchapter B in their summary-judgment
                                                                    the power of a hearing examiner.” 74 Further, the court has
motion or response, nor that their conduct in regard to
                                                                    concluded, “the Act does not empower a hearing examiner to
Dinwiddie and Fholer's misconduct allegations had triggered
the statute's prohibition against “disciplinary action.” Rather,    make rules.” 75
appellees' summary-judgment papers effectively presumed
                                                                     [14]    [15]     [16]    The second distinction emphasized
—similar to the MacAvoy court 67 —that their actions had
                                                                    by the supreme court, related to the first, is that the
triggered Subchapter B's prohibition against “disciplinary
                                                                    Act's delegation of decision-making authority to a hearing
action,” and argued that the hearing examiner did not
                                                                    examiner potentially implicates the constitutional limitations
“exceed her jurisdiction” regardless. It is on the grounds
                                                                    on delegations of “legislative” power to private entities,
appellees actually presented that the district court's summary-
                                                                    which the court apparently considers hearing examiners to
judgment rulings must stand or fall. 68 In other words,
                                                                    be. 76 A delegation of power by the Legislature without
the pivotal issue in the posture of this appeal is as
                                                                    “reasonable standards” to govern its exercise “is an abdication
Bracey suggests: whether the hearing examiner “exceeded
                                                                    of the authority to set governmental policy which the
her jurisdiction,” as contemplated by the Civil Service
                                                                    Constitution assigns to the legislative department,” and the
Act's judicial-review limitations, by dismissing rather than
                                                                    risk of such evils is considered to be especially grave
reinstating Bracey under circumstances where Subchapter B
                                                                    when the delegation is made to a private entity as opposed
says that “[d]isciplinary action may not be taken.”
                                                                    to a public one. 77 Accordingly, private delegations are
Analysis of a hearing examiner's “jurisdiction” and whether         permissible under the Texas Constitution, to summarize
or when it is “exceeded” is guided by several recent decisions      the relevant limitations, only “if the legislative purpose
from the Texas Supreme Court. As the high court has                 is discernable and there is protection against the arbitrary
observed, the Civil Service Act's limits on judicial review of      exercise of power.” 78 Although the Texas Supreme Court
hearing examiner decisions appear to have been “borrowed”            *107 has not yet definitively addressed whether the Act's
from the Texas Arbitration Act, and “almost identical”              delegation of decision-making authority to hearing examiners
language also appears in the Federal Arbitration Act. 69            comports with these limitations, it has strongly cautioned



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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

that the delegation raises “constitutional concerns” if the       To date, the supreme court's specific applications of these
Act's provisions that define and constrain hearing examiners'     concepts have focused on whether a hearing examiner's acts
authority cannot be enforced through “meaningful” judicial        were “authorized by the Act or ... contrary to it,” as opposed
review: 79                                                        to being consistent with the Act yet nonetheless “invad[ing]
                                                                  the policy-setting realm.” In City of Waco v. Kelley, *108
                                                                  the court held that a hearing examiner “exceeded his
  [I]f the Act does not bind hearing examiners to definite        jurisdiction” in imposing disciplinary remedies the court
  standards for reaching decisions and instead gives them         concluded were not authorized by the Civil Service Act
  broad latitude in determining not only factual disputes but     under the circumstances presented-a temporary suspension
  the applicable law, they become not merely independent          exceeding fifteen days in duration, a demotion, and back
  arbiters but policy makers, which is a legislative function.    pay to the extent the employee was awarded compensation
  This would raise nondelegation concerns.... It is one thing     during a period of suspension. 84 Similarly, in Smith, the
  for a hearing examiner to determine whether conduct             supreme court held that a hearing examiner had exceeded
  for which an officer ... has been disciplined occurred as       his jurisdiction in summarily reinstating an indefinitely
  charged; it is quite another thing for a hearing examiner to    suspended employee based solely on noncompliance with
  decide whether conduct that did occur deserves discipline.      an Act provision that the examiner erroneously believed
  If a city can invoke judicial review to require that a          to require the department head to personally attend the
  hearing examiner's ruling be made according to law,
                                                                  hearing. 85 The court reasoned that (1) the Act required the
  one concern of the nondelegation doctrine is satisfied.
                                                                  hearing examiner to hear evidence and base his decision
  But ... “if the right of appeal provided by [the Act]
                                                                  on it, yet he had refused to hear evidence; (2) in contrast
  does not afford a city meaningful review of a hearing
                                                                  to the Act's provisions requiring immediate reinstatement if
  examiner's decision, ... delegation of grievance decisions to
                                                                  the letter of suspension failed to provide adequate notice of
  an independent hearing examiner may raise constitutional
                                                                  the grounds for suspension, nothing in the Act required or
   problems.” 80                                                  authorized reinstatement as the penalty for noncompliance
And it follows, in the supreme court's view, that these           with the provision on which the examiner had relied; and (3)
constitutional concerns must also guide construction of a         the provision of the Act on which the examiner relied had not
hearing examiner's “jurisdiction” as it bears upon whether the
                                                                  applied in the first place. 86
Act permits judicial review of a particular action or decision
of the examiner:
                                                                  Also instructive is City of DeSoto v. White, in which the court
  Thus, in construing the scope of judicial review permitted      held that a department head's failure to provide the notice
  by [the Act], we must be mindful ... that “[w]hen faced with    regarding appeal rights that the Civil Service Act required
  multiple constructions of a statute, we must interpret the      to be included with the letter of suspension did not deprive
  statutory language in a manner that renders it constitutional   the hearing examiner of his jurisdiction under the Act to
                                                                  proceed with the appeal and impose discipline (i.e., mandate
  if it is possible to do so.” 81
                                                                  immediate reinstatement), but should be remedied instead by
                                                                  abating the hearing to afford the municipality opportunity
 [17] The supreme court has acknowledged that “[i]t is
difficult to distill from these statutory and constitutional      to cure the omission. 87 Applying the Dubai analysis of
constraints a simple, precise standard for determining            whether a statutory notice requirement is “jurisdictional” (i.e.,
                                                                  a prerequisite to a tribunal's subject-matter jurisdiction) as
whether a hearing examiner has exceeded his jurisdiction.” 82
But in City of Pasadena v. Smith, it offered the following as     opposed to merely mandatory, 88 the White court looked
“[t]he most accurate test we can state”:                          to whether the Act evidenced “clear legislative intent” to
                                                                  make the notice requirement a prerequisite for a hearing
                                                                  examiner's “jurisdiction” to hear an appeal and impose
  [A] hearing examiner exceeds his jurisdiction when his          discipline, considering the Act's text, “the presence or
  acts are not authorized by the Act or are contrary to it, or    absence of specific consequences for noncompliance,” and
  when they invade the policy-setting realm protected by the      the consequences that would result from each alternative
  nondelegation doctrine. 83                                      construction. 89 To reach its conclusion, the supreme court
                                                                  reasoned that, first, the Act did not expressly make the


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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
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notice requirement jurisdictional, nor was the requirement         to hear evidence (a fact distinguishing the case from Smith
                                         90                        ), he ultimately agreed with MacAvoy that Subchapter B
made a statutory prerequisite to suit.     It next observed
that the Act had not specified any particular consequences         barred his discipline and, on that sole basis, ordered him
for noncompliance with the notice requirement, which it            reinstated. 96 The City of Athens appealed the hearing
found particularly significant when contrasted with the Act's      examiner's decision to the district court, which granted
requirement of “prompt [ ] reinstate[ment]” where the letter       summary judgment that the examiner had not “exceeded his
of suspension “does not specifically point out ... the act or      jurisdiction” in ordering MacAvoy reinstated. 97 Concluding
acts ... that allegedly violated the civil service rules....” 91   otherwise, the Tyler Court of Appeals reversed.
“By arguing that the City's failure to provide the required
notice is jurisdictional,” the court emphasized, “White seeks      While conceding that Subchapter B, by its terms, applied to
the same remedy provided *109 for in section 143.052(f)            “disciplinary actions” reviewed or imposed by Civil Service
[the provision mandating ‘prompt[ ] reinstate[ment]’ for           Act hearing examiners, the Tyler court found fault with the
inadequate notice of charges]—dismissal,” and that “ ‘[w]hen       examiner's reinstatement of the officer on the sole basis that
the Legislature includes a right or remedy in one part of a        the City had not complied with Subchapter B. In the court's
code but omits it in another, that may be precisely what the       view, this application of Subchapter B made it tantamount to
Legislature intended,’ and ‘we must honor that difference.’        a jurisdictional prerequisite that must be satisfied in order for
” 92 Finally, regarding the “consequences” of holding that         a hearing examiner to have power to impose discipline under
the notice requirement was jurisdictional, the court reasoned      the Civil Service Act. 98 Because hearing examiners have no
that reinstating an officer “without an adjudication of the very   authority to create procedural rules, per Smith, the controlling
serious allegations against him,” which included abusing sick      question, the court reasoned, became whether *110 the
leave policy and “subsequently l[ying] to a supervisor about       Legislature had intended Subchapter B itself to impose
his actions ... cannot be the result the Legislature intended,”    this sort of “jurisdictional” limitation on hearing examiners
given “the vital role of police officers ... in our society,       under the Civil Service Act. Following the Texas Supreme
and the need for continued public trust in the exercise of         Court's analysis in White, the Tyler court concluded that
their duties,” and “especially where an interpretation which       Subchapter B was not intended to be this sort of requirement.
concludes that the provision is not jurisdictional would still     It observed that while Subchapter B's requirements were
protect the officer's appellate rights” through the abatement      clearly mandatory, nothing in that statute purported to make
remedy. 93                                                         them jurisdictional; that Subchapter B “contains no specific
                                                                   consequences for noncompliance”; and that the consequences
MacAvoy—the Tyler Court of Appeals decision on which               of the alternative constructions further suggested that the
appellees and the hearing examiner relied—applied the Texas        Legislature had not intended Subchapter B to defeat the
Supreme Court's reasoning from Smith and White to resolve          jurisdiction of a hearing examiner under the Civil Service Act:
a dispute, similar to the present one, regarding whether
or how a municipality's noncompliance with Subchapter B
                                                                     If the tendering of a complainant's statement prior to
affects a hearing examiner's authority to impose discipline
                                                                     discipline is jurisdictional, a police officer cannot be
under the Civil Service Act. MacAvoy, a police officer
                                                                     relieved of duty even for very serious infractions if the
for the City of Athens, was indefinitely suspended by the
                                                                     statement is not provided prior to the imposition of
police chief pursuant to the Civil Service Act after an
                                                                     discipline. On the other hand, if the statement requirement
internal investigation revealed that he had engaged in sexual
                                                                     is not jurisdictional, a hearing examiner can hear a case
relations with a woman while on duty and committed other
                                                                     where the officer['s] ... right to due process is respected
violations of departmental policy. 94 The investigation had          even if the statement is presented at a time after the initial
been triggered when the woman's husband had notified the
                                                                      discipline is imposed. 99
police department of MacAvoy's actions. MacAvoy appealed
                                                                   In light of these considerations, the Tyler court held that “[i]n
the suspension to an independent hearing examiner and
                                                                   the absence of a legislative directive that the failure to provide
argued, similar to Bracey here, that Subchapter B barred his
                                                                   a complainant's statement prior to discipline means that the
suspension and required his reinstatement because he had not
                                                                   officer will escape discipline, the hearing examiner exceeded
been provided a signed, written “complaint” from the woman
                                                                   his jurisdiction by crafting such a rule.” 100
or her husband. 95 Although the hearing examiner proceeded


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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

                                                                    or requires courts to ignore the question of Subchapter B's
Bracey emphasizes that MacAvoy is not binding precedent             implications for and effects on a hearing examiner's authority.
on this Court, and urges that we should not follow its
analysis here. He disputes the Tyler court's assessment              [18] While the Texas Supreme Court continues to recognize
that Subchapter B “contains no specific consequences for            that “ ‘[a]sserting that a decision made by a hearing examiner
noncompliance” that are material to hearing examiners,              is incorrect is not the same as asserting that the hearing
insisting that “[d]isciplinary action may not be taken against      examiner did not have jurisdiction,’ ” 103 the reasoning of
the officer” could not be any clearer in specifying the             its recent decisions guides us to classify the error of which
consequences for failing to give “a copy of the signed              Bracey complains as going to the examiner's “jurisdiction”
complaint ... to the officer.” But more fundamentally, Bracey       and not just the merits of her decision. If, as Bracey
asserts that MacAvoy asked and answered the wrong question.         argues, the Legislature intended Subchapter B's prohibition
What MacAvoy addressed, Bracey suggests, is whether                 against “disciplinary action,” once activated, to require Civil
compliance with Subchapter B affects the “jurisdiction” of a        Service Act hearing examiners to reinstate a suspended police
hearing examiner only in the sense of whether “his acts are not     officer regardless of whether discipline would otherwise be
authorized by the [Civil Service] Act or are contrary to it”—       authorized under the Act, a hearing examiner's disregard of
i.e., the first two components of the “test” the Texas Supreme      that prohibition (or even the existence of delegated power to
Court announced in Smith. 101 In fact, Bracey goes as far as        do so) would, if unchecked by “meaningful judicial review,”
to concede that, at least in this sense, “[appellees'] failure to   represent the sort of “broad latitude in determining not only
comply with Subchapter B did not cause the hearing examiner         factual disputes but the applicable law” and “whether conduct
to be without jurisdiction.” But the real question presented        that did occur deserves discipline” that the supreme court
in cases like these, Bracey reasons, instead concerns the           considers to imperil the constitutional validity of the Act's
third component of the Smith test—whether the hearing               delegation of decision-making authority to hearing examiners
examiner, even if otherwise acting consistently with the Civil      under the nondelegation doctrine. 104 Whether viewed as
Service Act, nonetheless “exceeded his jurisdiction” through        “policymaking” (as Bracey characterizes it) or in terms of
acts that “invade the policy-setting realm protected by the         an external statutory limitation on the disciplinary authority
nondelegation doctrine.” 102 Specifically, Bracey contends          that a hearing examiner would otherwise possess under
that Subchapter B embodies the Legislature's intent and             the Civil Service Act (as the MacAvoy court analyzed it),
policy judgment that failure to provide a police officer            the hearing examiner's failure to give effect to Subchapter
a written “complaint” as required under Subchapter B                B would “exceed her jurisdiction,” construed in light of
is of sufficient gravity to preclude “disciplinary action,”         these “constitutional concerns.” It follows that the district
including that reviewed or imposed by hearing examiners             court had subject-matter jurisdiction to determine—and
 *111 in appeals under the Civil Service Act, and require           necessarily had to determine—whether Subchapter B actually
reinstatement. By failing to give effect to Subchapter              had this intent and effect in order to decide whether the
B, Bracey insists, the hearing examiner supplanted the              hearing examiner's decision “exceeded her jurisdiction.” 105
Legislature's policy judgments with her own.                        In contending that the Act instead bars further judicial
                                                                    inquiry about Subchapter B's proper construction and effect,
Appellees counter in part that even if the hearing examiner         appellees rely—tellingly—on court of appeals' decisions that
somehow failed to construe or apply Subchapter B properly,          were explicitly disapproved by the Texas Supreme Court in
that error would be insulated from judicial review because
                                                                    Smith. 106
it would not implicate the examiner's “jurisdiction” as
contemplated by the Civil Service Act. They reason that
                                                                     *112 [19] As for whether Subchapter B required the
the Act empowers hearing examiners to construe and
                                                                    hearing examiner to reinstate Bracey, appellees again rely
apply statutes like Subchapter B in the course of deciding
                                                                    heavily on MacAvoy. Notwithstanding Bracey's attempts to
disciplinary appeals, that hearing examiner decisions are
                                                                    distinguish the case, we find several facets of its analysis
“final and binding on all parties” so long as the examiner
                                                                    instructive and persuasive. Whether viewed in terms of the
remains within this “jurisdiction,” and that “getting it wrong”
                                                                    White and Dubai analysis of “jurisdictional” requirements
is not the same as lacking jurisdiction to decide a question in
                                                                    or whether hearing examiners are “policymaking” in lieu
the first place. We disagree with appellees that the Act permits
                                                                    of following the governing law, the gravamen of MacAvoy



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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
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is that even if the “disciplinary actions” prohibited under         “exceeded her jurisdiction” had she reinstated Bracey based
Subchapter B include the discipline reviewed or imposed by          solely on appellees' failure to comply *113 with Subchapter
Civil Service Act hearing examiners, neither Subchapter B           B. 110
nor the Act reflects legislative intent to mandate automatic
reinstatement as the sole remedy hearing examiners can              Bracey's sole complaint is that the hearing examiner
impose (per the White analysis) and that, in the absence            “exceeded her jurisdiction” by failing to reinstate him based
of such a mandate in the statute, hearing examiners                 on Subchapter B. We have concluded that, to the contrary,
actually lack jurisdiction to impose reinstatement as an            the examiner had no jurisdiction to award him that remedy
automatic or categorical remedy (per Smith ). In effect, the        based solely on any failure by appellees to provide him one or
MacAvoy court reconciled what were potentially conflicting          more written “complaints” required by Subchapter B. Bracey
statutory commands—“thou shalt not impose ‘disciplinary             has not preserved any complaint that the hearing examiner
action,’ ” sayeth Subchapter B, while the Civil Service             failed to enforce Subchapter B through a remedy that would
Act, at least as construed in Smith, seems to forbid                be within her jurisdiction to award. Accordingly, the hearing
the converse, automatic reinstatement—by construing the             examiner did not “exceed her jurisdiction” as a matter of
statutes collectively to mean that hearing examiners are bound
                                                                    law. 111 The district court did not err in granting appellees'
to enforce Subchapter B, but through some remedy other than
                                                                    summary-judgment motion or denying Bracey's motion as to
automatic reinstatement, presumably some form of abatement
                                                                    Bracey's appeal of the hearing examiner's decision.
or other opportunity to cure the notice defect, as in White. We
agree with this view of the relationship between Subchapter
B and the Civil Service Act.                                        Declaratory-judgment claims
                                                                    Bracey next argues that the district court erred in granting
On one hand, Bracey unquestionably comes within the class           summary judgment as to his declaratory-judgment claims. He
of law enforcement officers who are now protected by                principally argues that the ground on which appellees relied,
Subchapter B, and assuming (as we must in the posture of            which was framed in terms of “arbitration and award,” is
this appeal) that appellees failed to provide him a written         inapposite because proceedings before independent hearing
“complaint” as the statute required, Subchapter B states            examiners under the Civil Service Act are not, strictly
unambiguously that “[d]isciplinary action may not be taken”
                                                                    speaking, arbitration. 112 Whatever the merits of this
against him “unless a copy of the signed complaint is given
                                                                    conceptual distinction, the hearing examiner's decision,
to [him].” Yet nothing in either Subchapter B nor the Civil
                                                                    which we have now concluded was properly upheld by
Service Act states that automatic reinstatement is the sole
                                                                    the district court on summary judgment, gives rise to a
remedy or means by which this prohibition can be enforced.
                                                                    more fundamental—and jurisdictional—barrier to Bracey's
The absence of such language stands in contrast to the Act's
explicit requirement of “prompt[ ] reinstate [ment]” if the         declaratory claims. 113
letter of suspension “does not specifically point out ... the act
                                                                    In the absence of an applicable waiver of governmental
or acts ... that allegedly violated the civil service rules.” 107
                                                                    immunity, Bracey can seek to enforce Subchapter B
Such distinctions in the rights and remedies available in those
                                                                    solely through the ultra-vires exception to sovereign and
situations, as the Texas Supreme Court emphasized in White,
“ ‘may be precisely what the Legislature intended’ ”—“and           governmental immunity. 114 Bracey's declaratory-judgmentt
                                                                     *114 t claims against Chief Baldwin, in his official capacity,
‘we must honor that difference.’ ” 108 The supreme court
                                                                    would be in the nature of such a claim: he seeks to compel
emphasized a similar distinction in Smith, pointing out that
                                                                    the City of Killeen, through Chief Baldwin, to enforce
the statutory provision on which the hearing examiner had
                                                                    what Bracey contends is a mandatory statutory prohibition
erroneously relied in reinstating an employee based on the
failure of the department head to attend the hearing did “not       against “disciplinary action.” 115 Further, as Bracey points
authorize rendition of a default judgment as an automatic           out, some of our sister courts, albeit in cases not involving
penalty for noncompliance” and relying in part on the               the Civil Service Act, have granted declaratory and injunctive
absence of such an authorization in holding that the hearing        relief to compel reinstatement of police officers based on
examiner “exceeded his jurisdiction” in imposing such a             Subchapter B violations. 116 But as the Texas Supreme Court
remedy. 109 Informed by Smith and White, we conclude, as            has more recently made clear in City of El Paso v. Heinrich,
did the MacAvoy court, that the hearing examiner would have         the sole relief that Bracey could obtain through the ultra


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Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

                                                                            matter jurisdiction to award, and the district court properly
vires exception would be declaratory or injunctive relief
to compel prospective compliance with Subchapter B—i.e.,                    dismissed it. 119
to reinstate him going forward from the time of judgment
—and governmental immunity would continue to bar any
retrospective relief, such as retroactive reinstatement and                                        *115 CONCLUSION
            117
back pay.     And while governmental immunity would not
bar Bracey's claim for prospective reinstatement, the hearing               We affirm the district court's judgment dismissing Bracey's
examiner's decision renders that claim moot—whatever the                    claims.
theoretical merits of Bracey's declaratory claim, it remains
that Bracey would still be dismissed from the Killeen Police
                                                                            Parallel Citations
Department by virtue of a hearing examiner decision that he
cannot overturn. 118 Bracey's declaratory-judgment claim, in                37 IER Cases 158
other words, seeks no relief that the district court has subject-


Footnotes
1       See generally Tex. Loc. Gov't Code § 143.057.
2       See generally id. §§ 143.051–.053, .057.
3       See generally Tex. Gov't Code §§ 614.021–.023.
4       See Tex. Loc. Gov't Code §§ 143.001(a), .006, .008, .051, .052(b), .053(g), .057(f); see generally id. §§ 143.001–.363. The Civil
        Service Act also protects fire fighters, but our focus here is limited to its application to police officers.
5       See id. §§ 143.001(b), .008(c), .051.
6       See id. §§ 143.051–.057. Certain of the provisions within subchapter D exclude municipalities with a population of 1.5 million or
        more, but there is no dispute that the current population of the municipality at issue here, the City of Killeen, falls under this threshold.
        We express no opinion as to the extent our analysis might have implications for municipalities not directly governed by subchapter
        D. Cf. City of Houston v. Clark, 197 S.W.3d 314, 317 n. 4 (Tex.2006).
7       Tex. Loc. Gov't Code § 143.052(b); see id. § 143.051.
8       Id. § 143.052(c); see id. § 143.057(a) (referring to “the letter of disciplinary action”); City of DeSoto v. White, 288 S.W.3d 389,
        392–93 & n. 3 (Tex.2009) (observing that the “written statement” referenced in section 143.052 and section 143.057(a)'s “letter of
        disciplinary action” “appear to refer to the same document”).
9       Tex. Loc. Gov't Code § 143.052(e).
10      Id. § 143.052(f).
11      See id. §§ 143.052(d) (“The copy of the written statement [given to the officer] must inform the suspended ... officer that if the person
        wants to appeal to the commission, the person must file a written appeal with the commission within 10 days after the date the person
        receives the copy of the statement.”), .057(a) (“In addition to the other notice requirements prescribed by this chapter, ... the letter
        of disciplinary action ... issued to a ... police officer must state that in an appeal of an indefinite suspension, [or] a suspension ... the
        appealing ... police officer may elect to appeal to an independent third party hearing examiner instead of to the commission. The
        letter must also state that if the ... police officer elects to appeal to a hearing examiner, the person waives all rights to appeal to a
        district court except as provided by Subsection (j).”).
12      Id. §§ 143.010(b), (g), .053.
13      Id. § 143.053(c).
14      Id. § 143.010(g); see also id. § 143.053(d) (“The commission may deliberate the decision in closed session but may not consider
        evidence that was not presented at the hearing.”).
15      Id. § 143.010(g).
16      Id. § 143.053(e)(1).
17      Id. § 143.053(e)(2), (f); see City of Waco v. Kelley, 309 S.W.3d 536, 545–48 (Tex.2010) (although not made explicit within section
        143.053, duration of “temporary suspension” authorized therein is governed by same fifteen-day limit that expressly limits department
        head's discretion).
18      See Tex. Loc. Gov't Code § 143.053(e)(3), (f); Kelley, 309 S.W.3d at 548–49.
19      Tex. Loc. Gov't Code § 143.053(g).




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20     See id. § 143.057.
21     See City of Pasadena v. Smith, 292 S.W.3d 14, 15 & n. 8 (Tex.2009).
22     Tex. Loc. Gov't Code § 143.057(d).
23     Id. § 143.057(f).
24     See Smith, 292 S.W.3d at 20.
25     See Kelley, 309 S.W.3d at 544–49.
26     Tex. Loc. Gov't Code § 143.015.
27     See Clark, 197 S.W.3d at 318 n. 5 (presuming that reference to “the arbitration panel” within section 143.1016, subsection (j), which
       applies to municipalities with populations of 1.5 million or more and closely mirrors section 143.057, subsection (j), necessarily
       refers to the individual hearing examiner who rendered the decision).
28     Tex. Loc. Gov't Code § 143.057(c), (j); see also Clark, 197 S.W.3d at 317–24 & n. 4 (holding that municipalities, not just officers,
       enjoy the Act's limited right to appeal hearing examiner decisions to district court).
29     See Tex. Gov't Code §§ 614.021–.023. Like the Civil Service Act, Subchapter B of chapter 614 also protects fire fighters, but, again,
       our focus here is on its application to law enforcement officers.
30     Treadway v. Holder, 309 S.W.3d 780, 782–86 (Tex.App.-Austin 2010, pet. denied); id. at 786–89 & n. 1 (Waldrop, J., dissenting)
       (although “agree[ing] with the majority that there is no distinction between ‘external’ complaints relating to an employee and ‘internal’
       complaints—i.e., between complaints generated outside the organization and those generated within the organization—for purposes
       of the application of Subchapter B,” urging that “complaint” did not include those generated within the officer's own chain of
       command).
31     Tex. Gov't Code § 614.022.
32     Id. § 614.023(a).
33     Id. § 614.023(b).
34     Id. § 614.023(c).
35     Act of May 16, 1969, 61st Leg., R.S., ch. 407, § 1, 1969 Tex. Gen. Laws 1333, 1333–34, recodified by Act of May 4, 1993, 73d
       Leg., R.S., ch. 268, § 1, secs. 614.021–.023, 1993 Tex. Gen. Laws 583, 678–79 (amended 2005) (current version at Tex. Gov't Code
       §§ 614.021–.023); see also Guthery v. Taylor, 112 S.W.3d 715, 717 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (observing that
       pre–2005 versions of “Texas Government Code sections 614.022 and 614.023 ... apply only to those police officers who are not
       covered by a civil service statute”).
36     Act of May 19, 2005, 79th Leg., R.S., ch. 507, § 1, sec. 614.021, 2005 Tex. Gen. Laws 1394, 1394 (current version at Tex. Gov't
       Code §§ 614.021(a)(3), (b)).
37     See Tex. Loc. Gov't Code § 143.003(5) (defining “police officer” covered by the Act).
38     Tex. Gov't Code § 614.021(a)(3), (b).
39     Bracey's falsehoods, according to Chief Baldwin, included utilizing his infant son's social security number and an incorrect home
       address in an attempt to avoid detection by the bank. Bracey's motive, Baldwin suggested, was to avoid having to repay the bank
       approximately $1,000 he owed for a previous overdraft.
40     Chief Baldwin stated that Detective Dinwiddie had conducted the search pursuant to a warrant “obtained and executed as a result of
       an unrelated criminal investigation where[ ] you [Bracey] were listed as the suspect.”
41     Incidentally, Baldwin's letter also noted that Bracey had been the subject of a separate disciplinary action within the past sixty months
       that had culminated, according to Baldwin, with a fifteen-day suspension for “neglect of duty.”
42     See Tex. Loc. Gov't Code § 143.052(e), (f).
43     Tex. Gov't Code § 614.023(b).
44     353 S.W.3d 905 (Tex.App.-Tyler 2011, pet. denied).
45     See id. at 907–11.
46     See Uniform Declaratory Judgments Act (UDJA), Tex Civ. Prac. & Rem.Code §§ 37.001–.011.
47     See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).
48     Tex.R. Civ. P. 166a(c); Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005).
49     Urena, 162 S.W.3d at 550.
50     See Tex.R. Civ. P. 166a(c); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).
51     See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).
52     State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006).
53     Id.



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54     Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006).
55     See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003).
56     See TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex.2011).
57     See In re Allen, 366 S.W.3d 696, 706 (Tex.2012) (orig. proceeding) (quoting Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301
       (Tex.1990)).
58     Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh'g) (citing Alex Sheshunoff Mgmt. Servs., L.P. v.
       Johnson, 209 S.W.3d 644, 651–52 (Tex.2006); Shumake, 199 S.W.3d at 284).
59     Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635, 637 (Tex.2010).
60     See In re Smith, 333 S.W.3d 582, 586 (Tex.2011) (orig. proceeding).
61     Valence Operating Co., 164 S.W.3d at 661.
62     Tex. Loc. Gov't Code § 143.057(j); cf. Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 172
       (Tex.2004) (recognizing that sovereign immunity generally bars judicial review of administrative decisions unless right of judicial
       review is provided by statute).
63     See, e.g., Clark, 197 S.W.3d at 324 (discussing “scope of review” under Civil Service Act's provisions governing appeal of hearing
       examiner's decision).
64     Tex. Loc. Gov't Code § 143.052(e), (f).
65     See id. § 143.052(f).
66     See Treadway, 309 S.W.3d at 784.
67     353 S.W.3d at 907–11.
68     See Tex.R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); City of Houston v. Clear
       Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).
69     Smith, 292 S.W.3d at 19, 21; see Tex. Civ. Prac. & Rem.Code § 171.088(a)(3)(A); see also 9 U.S.C. § 10 (identical language in
       Federal Arbitration Act).
70     See, e.g., East Tex. Salt Water Disposal Co., Inc. v. Werline, 307 S.W.3d 267, 272 (Tex.2010) (“Because Texas law favors arbitration,
       judicial review of an arbitration award is extraordinarily narrow.”); Universal Computer Sys., Inc. v. Dealer Solutions, L.L.C., 183
       S.W.3d 741, 752 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (“Review [of an arbitration award] is so limited that a court may
       not vacate an arbitration award even if it is based upon a mistake of fact or law.”).
71     See, e.g., City of Houston v. Clark, 252 S.W.3d 561, 567 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (concluding that courts “lack
       jurisdiction to review the merits of the hearing examiner's decision, including issues regarding whether the hearing examiner abused
       his discretion and ignored or misinterpreted controlling law”); City of Pasadena v. Smith, 263 S.W.3d 80, 84–85 (Tex.App.-Houston
       [1st Dist.] 2006) (holding that trial court lacked jurisdiction to review hearing examiner's decision that erred in applying law), rev'd,
       292 S.W.3d at 17–22.
72     E.g., Smith, 292 S.W.3d at 21.
73     Id. at 20.
74     Kelley, 309 S.W.3d at 541–42 (citing Smith, 292 S.W.3d at 20).
75     Smith, 292 S.W.3d at 20.
76     See id. at 17–20. As previously noted, a hearing examiner may be chosen by the parties' agreement or through a process of selection
       from a list of “qualified” and “neutral” arbitrators prepared by either the AAA, a private entity, or the FMCS, which is a federal
       agency. See Tex. Loc. Gov't Code § 143.057(d); Proctor v. Andrews, 972 S.W.2d 729, 734 (Tex.1998) (citing 29 U.S.C. § 171).
       Although the Texas Supreme Court suggested in Proctor that the constitutionality of the Civil Service Act's delegation of power to
       FMCS to select the list of proposed hearing examiners might be analyzed differently than its delegation of the same power to AAA,
       see Proctor, 972 S.W.2d at 734, the court has not drawn any such distinctions when analyzing the Act's delegation of authority to a
       hearing examiner, once chosen, to decide the appeal. See Kelley, 309 S.W.3d at 541–42; Smith, 292 S.W.3d at 17–18.
77     Smith, 292 S.W.3d at 17–18.
78     Clark, 197 S.W.3d at 320 (quoting Proctor, 972 S.W.2d at 735); see also Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952
       S.W.2d 454, 472 (Tex.1997) (prescribing eight-factor test for determining whether private delegation of legislative power exceeds
       constitutional limitations).
79     See Kelley, 309 S.W.3d at 541–42; Smith, 292 S.W.3d at 17–18; see also Lewellen, 952 S.W.2d at 472 (identifying susceptibility of
       private delegate's actions “to meaningful review by a state agency or other branch of state government” as one of the eight factors
       applied when evaluating constitutionality of private delegation).
80     Smith, 292 S.W.3d at 18–19; accord Kelley, 309 S.W.3d at 541–42 (quoting Smith, 292 S.W.3d at 18–19).
81     Smith, 292 S.W.3d at 19 (quoting Clark, 197 S.W.3d at 320).



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82     Id. at 21.
83     Id.
84     309 S.W.3d at 541–49.
85     292 S.W.3d at 17–18.
86     See id. at 17–21 & n. 47.
87     288 S.W.3d at 393–401.
88     See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75–77 (Tex.2000).
89     See White, 288 S.W.3d at 393–97 (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex.2001); Dubai Petroleum Co., 12
       S.W.3d at 75–77).
90     See id. at 395–96.
91     Id. at 396 (quoting Tex. Loc. Gov't Code § 143.052(f)).
92     Id. (quoting PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84 (Tex.2004)).
93     Id. at 396–97 & n. 6.
94     353 S.W.3d at 906.
95     Id.
96     Id. at 906, 910 n. 5.
97     Id.
98     See id. at 908, 910 n. 5.
99     Id. at 909–10 (footnote omitted).
100    See id. at 910 (citing Smith, 292 S.W.3d at 21, for proposition that “a hearing examiner exceeds his jurisdiction when his acts are
       not authorized by the Act or are contrary to it”).
101    292 S.W.3d at 21 (“a hearing examiner exceeds his jurisdiction when his acts are not authorized by the Act or are contrary to it”).
102    Id.
103    Id. (quoting Smith, 263 S.W.3d at 85).
104    Id. at 19–20.
105    See Harris Cnty. v. Sykes, 136 S.W.3d 635, 642 (Tex.2004) (noting “courts always have jurisdiction to determine their own subject-
       matter jurisdiction” (citing Camacho v. Samaniego, 831 S.W.2d 804, 809 (Tex.1992))).
106    See City of Laredo v. Leal, 161 S.W.3d 558, 563 (Tex.App.-San Antonio 2004, pet. denied); Nuchia v. Tippy, 973 S.W.2d 782, 786
       (Tex.App.-Tyler 1998, no pet.); see also Smith, 292 S.W.3d at 21 & nn. 49 & 50 (noting that cited opinions failed to “accurately
       restate[ ] the restrictions on a hearing examiner's authority”).
107    Tex. Loc. Gov't Code § 143.052(f).
108    288 S.W.3d at 396 (quoting PPG Indus., Inc., 146 S.W.3d at 84).
109    292 S.W.3d at 20.
110    In the alternative, if Subchapter B and the Civil Service Act cannot be reconciled in this manner, then we would hold that the Act's
       provisions defining and limiting the hearing examiner's “jurisdiction” would control under the principle that a specific statute will
       ordinarily prevail over a general statute when the two cannot be reconciled. See, e.g., City of Waco v. Lopez, 259 S.W.3d 147, 153–54
       (Tex.2008) (holding specific statutory scheme in Human Rights Act provided exclusive remedy to aggrieved employee and controlled
       over more general procedures and remedies in Whistleblower Act).
111    We express no opinion as to whether appellees' provision of the letter of suspension to Bracey—which, as the hearing examiner
       suggested, would seem to contain substantively the same information regarding Dinwiddie and Fholer's allegations against Bracey
       that would have been provided in the signed, written “complaints” Bracey demands, if not more—sufficed to cure any violation of
       Subchapter B. Certainly the safer approach for employers in appellees' position would be to provide the information in the form of
       the signed, written “complaints” described in Subchapter B.
112    See City of League City v. Blevins, 821 S.W.2d 212, 215 (Tex.App.-Houston [14th Dist.] 1991, no writ) (holding “proceedings held
       before an independent third party hearing examiner pursuant to [the Civil Service Act] are not in the nature of an arbitration and are
       not subject to the provisions of the Texas General Arbitration Act”).
113    Even if not squarely raised by appellees, we have the power and duty to consider these jurisdictional concerns sua sponte. See
       Rusk State Hosp. v. Black, 392 S.W.3d 88, 95–96 (Tex.2012); Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446
       (Tex.1993).
114    See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 656 & n. 2 (Tex.2008) (noting that “governmental immunity protects
       subdivisions of the State, including municipalities” from lawsuits and liability for money damages); cf. Texas Dep't of Transp. v.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     16
Bracey v. City of Killeen, 417 S.W.3d 94 (2013)
37 IER Cases 158

       Sefzik, 355 S.W.3d 618, 620–21 (Tex.2011) (per curiam) (noting that sovereign immunity provides similar protection to suits against
       the state); Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex.2007) (sovereign immunity generally extends to Texas
       state officials who are sued in their official capacities because that is merely “ ‘ another way of pleading an action against the entity
       of which [the official] is an agent’ ” (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985))).
       Although the UDJA provides limited waivers of immunity, Bracey's claims regarding violations of Subchapter B fall outside of them.
       See Sefzik, 355 S.W.3d at 620–22.
115    See id. at 620–21 & n. 2 (observing that claims that sought “to compel a government official ... to perform some act that [the plaintiff]
       considers to be nondiscretionary” distinguished them as “within the ultra vires rationale”).
116    See Guthery, 112 S.W.3d at 724 (rendering judgment that city and police chief violated Subchapter B by failing to provide copies of
       signed “complaints” and ordering reinstatement of disciplined officer with back pay and benefits).
117    284 S.W.3d 366, 373–77 (Tex.2009).
118    See Klein v. Hernandez, 315 S.W.3d 1, 3 (Tex.2010) ( “Appellate courts are prohibited from deciding moot controversies because
       the separation-of-powers article prohibits advisory opinions on abstract questions of law.” (citing Tex. Const. art. II, § 1; Brooks v.
       Northglen Ass'n, 141 S.W.3d 158, 164 (Tex.2004))).
119    In urging that the hearing examiner's decision should not be deemed to foreclose his declaratory claims, Bracey refers us to a Dallas
       Court of Appeals decision involving a similar declaratory judgment claim alleging that the City of Dallas had violated Subchapter
       B and disciplined an employee in spite of it. Nelson v. City of Dallas, 278 S.W.3d 90, 92 (Tex.App.-Dallas 2009, pet. denied).
       The Nelson court held that an administrative tribunal under Dallas's civil service system had primary jurisdiction to decide whether
       the city had violated and erroneously applied Subchapter B and, accordingly, that the declaratory claim should be abated pending
       the administrative process. See id. at 98 (“Even if the City erroneously applies [Subchapter B], that error can be addressed in the
       administrative process and ultimately in the courts under the judicial review provided by the City charter and ordinances.”). The gist
       of Bracey's complaint is that the Civil Service Act and Nelson collectively force him unfairly into an administrative process that
       deprives him of any remedy for appellees' violations of Subchapter B. If that is so, it is a function of the disciplinary procedures
       that the Legislature has provided in the Civil Service Act, which we are bound to enforce. Consequently, Bracey's remedy for this
       perceived flaw in the Act would lie with that branch of government, not the courts.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        17
Cain v. Bain, 709 S.W.2d 175 (1986)




                                                                             2990 Cases that cite this headnote
                      709 S.W.2d 175
                  Supreme Court of Texas.

            James CAIN, d/b/a James Cain
             Company, et al., Petitioners,                           Attorneys and Law Firms
                          v.                                         *175 Ross, Banks, May, Cron & Cavin by John A. Cavin,
          James Lee BAIN et ux., Respondents.                        Houston, for petitioners.

            No. C–4764. | Feb. 12, 1986.                             Ross, Banks, May, Cron & Cavin, Gordon A. Holloway, and
           | Rehearing Denied June 4, 1986.                          N. Carlene Rhodes, Houston, for respondents.

Purchasers of home brought action against real estate agency         Opinion
for violations of Deceptive Trade Practices Act, after being
unable to sell house which they procured through agency              PER CURIAM.
because of foundation defect. The 215th District Court,
                                                                     James and Karen Bain purchased a 20-year-old house in 1976
Harris County, Charles L. Price, granted agency's motion
                                                                     from George and Carroll Banks. The real estate agent for
for directed verdict and rendered take-nothing judgment
                                                                     the transaction was an employee of James Cain Company.
against purchasers, and purchasers appealed. The Texarkana
                                                                     In 1978, the Bains tried to sell their house but were unable
Court of Appeals, Sixth Court of Appeals District, reversed,
                                                                     to find a buyer because of a foundation defect. They sued
determining that flaws and evidence of defects in house did
                                                                     James Cain Company for violations of the Texas Deceptive
not point unerringly to substantial foundation defect, such
                                                                     Trade Practices Act. The trial court granted Cain's Motion
that purchasers were put on notice of defect, as jury found,
                                                                     for Directed Verdict and rendered a take nothing judgment
and agency petitioned for writ of error. The Supreme Court
                                                                     against the Bains. In an unpublished opinion, the court of
held that proper standard of review for Court of Appeals in
                                                                     appeals reversed the trial court's judgment. Tex.R.Civ.P. 452.
determining factual sufficiency of evidence is to consider and
weigh all evidence and set aside verdict only if it is so contrary
                                                                     The trial court submitted Issue No. 7 asking the jury:
to overwhelming weight of evidence as to be clearly wrong
and unjust.                                                            Do you find from a preponderance of the evidence that on
                                                                       or before October 13, 1977 the Plaintiffs James Lee Bain
Court of Appeals affirmed in part, reversed in part, and cause         and wife Karen Sue Bain either had knowledge of such
remanded thereto.                                                      substantial foundation structural defect, or were on notice
                                                                       of such facts as would cause a reasonable, prudent person
                                                                       to make inquiry which could lead to the discovery of such
 West Headnotes (1)                                                    defect by the exercise of reasonable diligence?

                                                                       Answer: “We do” or “We do not”
 [1]     Appeal and Error
                                                                       Answer: We do
            Extent of Review
         Appeal and Error                                            The evidence revealed that when the Bains moved into the
             Great or Overwhelming Weight or                         house they noticed a bulge under one window, a crack in the
         Preponderance                                               kitchen wall, and a sticking door. Within six or seven months
         Proper standard of review which Court of                    after occupying the house, they noticed a foundation crack
         Appeals should have used in reviewing jury                  near the patio. Karen Bain testified that during the spring or
         verdict to determine factual sufficiency of                 summer of 1977 she was told there might be a slab problem
         evidence was to consider and weigh all evidence,            with the house.
         and to set aside verdict only if it was so contrary
         to overwhelming weight of evidence as to be                 The Bains presented some evidence to the contrary. They
         clearly wrong and unjust.                                   consulted with a foundation *176 expert in April 1978, who


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Cain v. Bain, 709 S.W.2d 175 (1986)


                                                                      evidence as to be clearly wrong and unjust. Dyson v. Olin
informed them that there was not a substantial foundation
                                                                      Corp., 692 S.W.2d 456, 457 (Tex.1985); In Re King's Estate,
defect. Also, they argue the flaws in the house could
                                                                      150 Tex. 662, 664–65, 244 S.W.2d 660, 661 (1951).
have been indicative of problems other than a foundation
defect, such as ordinary subsidence problems common to the
                                                                      The court of appeals imposed a different standard—that
Houston area, or the effects of age, dampness and weathering
                                                                      the evidence supporting the jury's finding must point
on a 20-year-old house.
                                                                      “unerringly” to the conclusion found by the jury. The court
                                                                      also held the evidence was “much too slight and indefinite”
On appeal, the Bains asserted that the jury finding that they
                                                                      to support the jury verdict. The jury's task is to decide a
were on constructive notice of the foundation defect was
                                                                      fact issue based on the preponderance of the evidence. We
against the great weight and preponderance of the evidence.
                                                                      hold that the court of appeals has decided this case under
The court of appeals reversed the trial court's judgment
                                                                      an inappropriate standard of law. There is some evidence to
and remanded the cause, holding the flaws and evidence of
                                                                      support the jury verdict. Therefore, pursuant to Rule 483, we
defects in the house “do not point unerringly to a substantial
                                                                      grant Cain's application for writ of error and, without hearing
foundation defect.” This is not the correct standard of review
                                                                      oral argument, reverse the judgment of the court of appeals on
for a challenge to the sufficiency of the evidence.
                                                                      the insufficiency of evidence point and remand the cause to
                                                                      that court to consider the insufficiency points of error under
When reviewing a jury verdict to determine the factual
                                                                      the proper test. We affirm the judgment of the court of appeals
sufficiency of the evidence, the court of appeals must consider
                                                                      in all other respects.
and weigh all the evidence, and should set aside the verdict
only if it is so contrary to the overwhelming weight of the

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
City of Athens v. MacAvoy, 353 S.W.3d 905 (2011)


                                                                         Even when there is a mandatory duty imposed
                                                                         on a municipality related to the dismissal of an
                    353 S.W.3d 905
                                                                         employee, it does not follow that the failure to
                Court of Appeals of Texas,
                                                                         carry out that duty means the employee may
                          Tyler.
                                                                         not be disciplined, unless the legislature is very
          CITY OF ATHENS, Texas, Appellant,                              specific about that result.
                        v.
                                                                         1 Cases that cite this headnote
              James MacAVOY, Appellee.

       No. 12–10–00259–CV.          |     June 30, 2011.

Synopsis                                                        Attorneys and Law Firms
Background: City petitioned for judicial review of decision
by independent hearing examiner that ordered police officer's   *906 Julia J. Gannaway, Lubbock, Bettye Lynn, Fort Worth,
reinstatement. The 392nd Judicial District Court, Henderson     Conor G. Bateman, for Appellant.
County, James Ray Fry, J., granted police officer's plea to
                                                                Christopher D. Livingston, for Appellee.
jurisdiction. City appealed, and the Court of Appeals, 260
S.W.3d 676, reversed and remanded. On remand, the District      Panel consisted of WORTHEN, C.J., GRIFFITH, J., and
Court entered summary judgment in officer's favor, and city     HOYLE, J.
appealed.


                                                                                          OPINION
[Holding:] The Court of Appeals, Brian T. Hoyle, J.,
held that statutory requirement that police officer be          BRIAN T. HOYLE, Justice.
provided with copy of signed complaint against him in
                                                                The City of Athens appeals from the trial court's order
disciplinary proceeding was not prerequisite to hearing
                                                                granting James MacAvoy's motion for summary judgment,
officer's jurisdiction to terminate officer.
                                                                which had the effect of reinstating him as a police officer with
                                                                the City. In two issues, the City argues that a hearing examiner
Reversed and remanded.                                          exceeded his jurisdiction by reinstating the officer on the basis
                                                                of a procedural defect in the disciplinary process. We reverse
                                                                and remand.

 West Headnotes (2)

                                                                                       BACKGROUND
 [1]    Municipal Corporations
           Charges                                              The police chief for the City of Athens Police Department
                                                                placed James MacAvoy, a police officer, on indefinite
        Statutory requirement that police officer be
                                                                suspension after an investigation revealed that MacAvoy had
        provided with copy of signed complaint
                                                                engaged in sexual relations with a woman while on duty and
        against him in disciplinary proceeding was not
                                                                committed various other violations of department policy. The
        prerequisite to hearing officer's jurisdiction to
                                                                investigation began after MacAvoy's actions were brought
        terminate officer. V.T.C.A., Government Code §
                                                                to the attention of the police department by the woman's
        614.023.
                                                                husband.
        4 Cases that cite this headnote
                                                                An indefinite suspension ends a police officer's employment,
                                                                and MacAvoy appealed his termination. Pursuant to law,
 [2]    Municipal Corporations                                  MacAvoy requested that the appeal be heard by an
           Removal, Discharge, Transfer or Demotion             independent hearing examiner. A two day hearing was held.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
City of Athens v. MacAvoy, 353 S.W.3d 905 (2011)


Section 614.023, Texas Government Code, requires that a             The hearing examiner's decision is final and binding on all
signed complaint be provided to a police officer before             parties. Id. § 143.057(c). A party 2 may appeal the hearing
discipline can be imposed. The police chief had treated             examiner's decision on the grounds that the examiner “was
himself as the complainant, and did not provide the statements      without jurisdiction or exceeded [his] jurisdiction or that the
of the woman and her husband before imposing discipline.            order [of the examiner] was procured by fraud, collusion, or
The hearing examiner determined that the woman and her
                                                                    other unlawful means.” Id. at § 143.057(j). 3 Appeal is to the
husband were the complainants and that discipline could not
                                                                    district court. Id.
be imposed because their signed complaints had not been
provided. Therefore, the hearing examiner ordered MacAvoy
                                                                    Section 614.023 requires that a copy of a “signed complaint
to be reinstated with back pay.
                                                                    against a law enforcement officer” must be served on the
                                                                    officer “within a reasonable time after the complaint is
The City of Athens appealed the hearing examiner's order to
                                                                    filed.” TEX. GOV'T CODE ANN. § 614.023(a) (Vernon
the district court. The City argued that the hearing examiner
                                                                    Supp.2010). The statute further requires that the officer or
was without jurisdiction to apply Section 614.023 and that
                                                                    employee may not be indefinitely suspended or terminated
his interpretation of the statute exceeded his jurisdiction.
                                                                    from employment unless the subject matter of the complaint
MacAvoy made a plea to the jurisdiction, arguing that the
                                                                    is investigated and there is evidence to prove the allegation
district court lacked jurisdiction to consider the City's appeal.
                                                                    of misconduct. Id. § 614.023(c). Finally, the statute provides
The district court granted MacAvoy's plea to the jurisdiction,
                                                                    that disciplinary action may not be taken against an officer
and the City appealed. This court reversed and remanded
                                                                    unless a copy of the signed complaint is given to him. Id. §
in part, holding that the question of whether the hearing
                                                                    614.023(b).
examiner had jurisdiction to apply Section 614.023 was a
question the district court had jurisdiction to review. 1           Summary judgments are reviewed de novo. See Valence
                                                                    Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).
The district court decided that the hearing examiner did            There are no disputed facts in this case, and the issues
not exceed his jurisdiction, granted MacAvoy's motion for           raised in this appeal involve statutory construction, which
summary judgment, and entered a final order in which it             is also subject to de novo review. See City of Rockwall v.
ordered MacAvoy to be reinstated. The City appealed.                Hughes, 246 S.W.3d 621, 625 (Tex.2008). In determining the
                                                                    legislature's intent in enacting a statute, courts should look
                                                                    to the plain meaning of the words used in the statute. See
                       JURISDICTION                                 Fireman's Fund Cnty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767,
                                                                    768–69 (Tex.2000).
 [1] In two issues, the City argues that the hearing examiner
exceeded his jurisdiction by applying Section 614.023, Texas
Government Code, and overturning the discipline imposed on          Analysis
MacAvoy because a signed copy of the complaint had not              The question presented is whether the hearing examiner had
been served on him prior to his discipline.                         jurisdiction to dismiss the discipline imposed on MacAvoy
                                                                    because the City failed to provide him with a copy of the
                                                                    signed complaints before imposing discipline. In the first
Applicable Law and Standard of Review                               appeal in this case, we noted that the case was similar to
Employment matters for police officers and firefighters,            City of Pasadena v. Smith, 263 S.W.3d 80 (Tex.App.-Houston
including hiring and firing, *907 are governed by statute,          [1st Dist.] 2006), rev'd by 292 S.W.3d 14, 22 (Tex.2009).
unless the municipality and the workers have reached a              In that case, the hearing examiner applied a statute that
separate collective bargaining agreement. See generally TEX.        required the department head to be present at the hearing to
LOC. GOV'T CODE ANN. ch. 143 (Vernon 2008). A police                review the discipline imposed on an officer, and reinstated the
officer who is fired, or placed on an indefinite suspension, can    officer because the department head was not present. City of
appeal that determination. Id. § 143.053. The appeal is to the      Pasadena, 292 S.W.3d at 16. The hearing examiner did this
Police Officers' Civil Service Commission. Id. §§ 143.003(1),       under the authority of a statute that applied to employment
143.053(b). However, the police officer may elect to have an        disputes for larger cities, but not to the city of Pasadena.
independent hearing examiner hear the appeal. Id. § 143.057.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
City of Athens v. MacAvoy, 353 S.W.3d 905 (2011)


Id. (referencing *908 TEX. LOC. GOV'T CODE ANN.
143.1015(k) (Vernon 2008)).                                                    [b]y enacting sections 614.021–.023,
                                                                               of the Government Code, the State
The court of appeals held that the city's argument that the                    provided covered employees with
hearing examiner applied a statute which was, by its own                       procedural safeguards to reduce the
terms, inapplicable, was not a challenge to the jurisdiction                   risk that adverse employment actions
of the hearing examiner, and could not be reviewed. City of                    would be based on unsubstantiated
Pasadena, 263 S.W.3d at 85. In reversing, the supreme court                    complaints. Moreover, the State
held that the hearing examiner exceeded his jurisdiction by                    determined that the value of
applying a statute that did not pertain to that dispute. City of               these protections outweighs the
Pasadena, 292 S.W.3d at 20. The court also went further to                     fiscal and administrative burdens
write about the role of hearing examiners. Specifically, the                   incurred by complying with statutory
court found it important that the civil service commission,                    requirements.
whose authority is the same as a hearing examiner, was
                                                                   Turner, 278 S.W.3d at 823. If the hearing examiner were
permitted to consider “only the evidence submitted at the
                                                                   permitted to apply Section 614.023, it seems reasonable, as
hearing” when reaching a decision. Id. (citing TEX. LOC.
                                                                   we wrote in our first opinion, that the examiner would have
GOV'T CODE ANN. § 143.010(g) (Vernon 2008)). The
                                                                   some flexibility to define terms like “complainant” and to
court combined that requirement with the hearing examiner's
                                                                   make other reasonable determinations. See City of Athens,
application of an inapplicable statute to determine that he
                                                                   260 S.W.3d 676, 680–81 (Tex.App.-Tyler 2008, no pet.).
exceeded his jurisdiction. Id. at 20. In defining the scope
                                                                   However, the hearing examiner in this case did more than
of the hearing examiner's jurisdiction, the court held that
                                                                   simply construe undefined terms in a statute. On MacAvoy's
a hearing examiner exceeds his jurisdiction “when his acts
                                                                   motion, the hearing examiner dismissed the discipline. This
are not authorized by the Act or are contrary to it, or
                                                                   had the effect of making Section 614.023 a jurisdictional
when they invade the policy-setting realm protected by the
                                                                   requirement for discipline. The hearing examiner did not
nondelegation doctrine.” Id. at 21.
                                                                   find that MacAvoy's due process rights were violated *909
                                                                   apart from the statute or that his ability to prepare a
The court did not apply the full test of the nondelegation
                                                                   defense was impaired. Furthermore, most of the hearing
doctrine in City of Pasadena because, by using an
                                                                   examiner's written opinion pertains to the initial claims of
inapplicable statute, the hearing examiner created a
                                                                   misconduct. The examiner duly notes that the chief of police
procedural rule, something that he had no authority to do.
                                                                   signed a subsequent complaint for insubordination when
Id. at 20 (“[Appellee] argues that the hearing examiner could
                                                                   MacAvoy disregarded an order to cease further contact with
reasonably have concluded that since section 143.1015(k)
                                                                   an individual. But the opinion fails to distinguish between
requires the presence of the department head at civil service
                                                                   the first claim, in which the complainant's statements were
appeal proceedings in Houston, the same rule should apply
                                                                   not timely provided, and the insubordination claim, where
in other cities. But the Act does not empower a hearing
                                                                   complaint of the aggrieved party, the police department, was
examiner to make rules.”). If this is interpreted strictly,
                                                                   provided.
as the City would have us do, the conclusion could be
reached that Section 614.023(b) does not apply to hearing
                                                                   The supreme court made clear in City of DeSoto v. White,
examiner hearings because that section is outside of the
                                                                   288 S.W.3d 389, 394 (Tex.2009), when construing a different
Fire Fighters and Police Officers' Civil Service Act (Chapter
                                                                   but similar due process requirement, that the analysis of
143 of the Texas Local Government Code). See id. at 15.
                                                                   whether a notice statute creates a jurisdictional requirement
There are problems with this construction, however. First, the
                                                                   begins with the presumption that the legislature did not intend
legislature specifically stated that Subchapter B of Chapter
                                                                   to make a statutory requirement jurisdictional and that the
614, Texas Government Code, which includes Section
                                                                   presumption may be overcome only by clear legislature intent
614.023, applies to complaints against law enforcement
                                                                   to the contrary. Id. at 394. At issue in City of DeSoto was
officers. See TEX. GOV'T CODE ANN. § 614.021 (Vernon
                                                                   a statutory provision that requires notice to a person being
Supp.2010). Indeed, as then—Justice Guzman wrote in
                                                                   disciplined of the consequences for choosing an appeal to
Turner v. Perry, 278 S.W.3d 806, 823 (Tex.App.-Houston
                                                                   a hearing examiner. Id. at 391 (citing TEX. LOC. GOV'T
[14th Dist.] 2009, pet. denied),
                                                                   CODE ANN. § 143.057(a)).


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
City of Athens v. MacAvoy, 353 S.W.3d 905 (2011)


                                                                   provided before the imposition of discipline. See Guthery
To determine if that notice requirement was jurisdictional,        v. Taylor, 112 S.W.3d 715, 724 (Tex.App.-Houston [14th
the court attempted to ascertain the legislative intent            Dist.] 2003, no pet.); Fudge v. Haggar, 621 S.W.2d 196,
by examining the plain language of the statutes. City              197–98 (Tex.App.-Texarkana 1981, writ ref'd n.r.e.); see also
of DeSoto, 288 S.W.3d at 395. More particularly, the               Treadway v. Holder, 309 S.W.3d 780, 781–82 (Tex.App.-
court looked to the specific language of the statute, any          Austin 2010, pet. denied). The issue in those cases was
enumerated consequences for failure to comply, and the             not whether providing the complainant's statement was a
policy ramifications of either interpretation. Id. In both City    condition precedent to the imposition of discipline, but the
of DeSoto and here, the relevant statute creates a mandatory       opinions treated it as if it were. However, any inference that
requirement. In City of DeSoto, the statute said that a letter     could be drawn from legislative inaction or acquiescence is
of disciplinary action “must” state that the employee waives       slight because there have been so few cases on this issue,
certain rights. Id. (citing TEX. LOC. GOV'T CODE ANN. §            because the issue was not squarely presented in Guthery
143.057(a)). In this case, Section 614.023 states that a copy      and Fudge, and because such inferences are of questionable
of a signed complaint “must” be given to the law enforcement       weight. See Entergy Gulf States, 282 S.W.3d at 470–71.
officer and that disciplinary action “may not” be taken unless
that complaint is provided. TEX. GOV'T CODE ANN. §                  [2] On balance, we are compelled by the very similar
614.023(a),(b). The phrase “may not” is synonymous with            and recent City of DeSoto opinion to conclude that Section
“shall not” and imposes a prohibition. TEX. GOV'T CODE             614.023 is not jurisdictional. The hearing examiner treated
ANN. § 311.016(5) (Vernon 2008). The term “must” creates           the complaint requirement as a jurisdictional threshold. 5 In
or recognizes a condition precedent. Id. § 311.016(3). Both        light of the recent opinions from the Texas Supreme Court
are mandatory, but as the court recognized in City of DeSoto,      in City of DeSoto and City of Pasadena, we conclude that
“ ‘just because a statutory requirement is mandatory does          the hearing examiner exceeded his jurisdiction by treating
not mean that compliance with it is jurisdictional.’ ” City        Section 614.023 as jurisdictional. The City of DeSoto opinion
of DeSoto, 288 S.W.3d at 395 (quoting Albertson's, Inc. v.         makes clear, when construing a very similar statute, that even
Sinclair, 984 S.W.2d 958, 961 (Tex.1999)).                         when there is a mandatory duty imposed on a municipality
                                                                   related to the dismissal of an employee, it does not follow
As with the notice requirement in City of DeSoto,                  that the failure to carry out that duty means the employee
Section 614.023 contains no specific consequence for               may not be disciplined, unless the legislature is very specific
noncompliance. Furthermore, there is a good fit between            about that result City of DeSoto, 288 S.W.3d at 395–97.
this case and the analysis in City of DeSoto with respect          In the absence of a legislative directive that the failure to
to the consequences of interpretation of the statute. If the       provide a complainant's statement prior to discipline means
tendering of a complainant's statement prior to discipline is      that the officer will escape discipline, the hearing examiner
jurisdictional, a police officer cannot be relieved of duty even
                                                                   exceeded his jurisdiction by crafting such a rule. 6 See City of
for very serious infractions if the statement is not provided
                                                                   Pasadena, 292 S.W.3d at 21 (“... a hearing examiner exceeds
prior to the imposition of discipline. 4 On the other hand,        his jurisdiction when his acts are not authorized by the Act or
if the statement requirement is not jurisdictional, a hearing      are contrary to it....”).
examiner can hear a case where the officer or firefighter's
right to due process is respected even if the statement *910        *911 Furthermore, the City of Pasadena opinion clearly
is presented at a time after the initial discipline is imposed.    states the statutory scheme for hearing examiners is organized
                                                                   around the examiners acting as fact finders with respect to the
Finally, there is the issue of precedent. The legislature is       allegations against covered employees. City of Pasadena, 292
presumed to know of appellate consideration of statutes,           S.W.3d at 20 (“[The statute] mandates that a decision be made
and a slight inference can be drawn when a statute is              on evidence submitted at the hearing.”). While the examiner
interpreted by an appellate court and the legislature does not     in this case did hold a hearing, his ruling was based on the
take corrective action. See e.g., Entergy Gulf States, Inc. v.     issue of statutory compliance, and he imposed a remedy that,
Summers, 282 S.W.3d 433, 470–71 (Tex.2009); but see Fort           in light of the City of Pasadena and City of DeSoto opinions,
Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 97          was not authorized by the Act and beyond his jurisdiction.
(Tex.2004). In two divergent cases, the courts considered and      Because we hold that the hearing examiner exceeded his
construed statutes requiring a complainant's statement to be       jurisdiction, we also hold that the trial court erred in granting


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
City of Athens v. MacAvoy, 353 S.W.3d 905 (2011)


                                                                          Having sustained the City's first and second issues, we reverse
MacAvoy's motion for summary judgment. We sustain the
                                                                          the judgment of the trial court and remand this case to the trial
City's first and second issues.
                                                                          court.


                       DISPOSITION



Footnotes
1     See City of Athens v. MacAvoy, 260 S.W.3d 676 (Tex.App.-Tyler 2008, no pet.).
2     Although not specifically provided for by statute, a city may appeal an independent hearing examiner's decision. City of Houston v.
      Clark, 197 S.W.3d 314, 315, 324 (Tex.2006); Nuchia v. Tippy, 973 S.W.2d 782, 785 (Tex.App.-Tyler 1998, no pet.).
3     Section 143.057(j) states that it is the decision of the “arbitration panel” that can be appealed to the district court. Because the statute
      refers to a hearing examiner, the Texas Supreme Court, while finding the language “difficult to explain,” applied it as if it were the
      hearing examiner's decision that could be appealed. Clark, 197 S.W.3d at 318 n. 5.
4     In most cases, a municipality will not have the opportunity to rectify a problem with providing the complainant's statement prior
      to the imposition of discipline because the law provides that discipline may not be imposed, for noncriminal acts, unless it is done
      within 180 days of discovery. See TEX. LOCAL GOV'T CODE § 143.052(h) (Vernon 2008).
5     Although he held a hearing on the merits, the hearing examiner ultimately dismissed the discipline against MacAvoy because of the
      failure to tender what he determined was the appropriate complainant statement prior to the imposition of discipline. The hearing
      examiner did not describe the disclosure of the statements as a precondition to his own jurisdiction. However, he described it as a
      threshold issue, and his decision to overturn the discipline because the statements were not provided timely had the effect of making
      it a jurisdictional requirement. MacAvoy did not show, or argue, that his actual ability to defend himself was impaired, and he did
      not, and does not, raise an independent due process claim. Indeed, MacAvoy did not dispute the principal allegations against him
      and admitted most of the allegations that were made.
6     It bears noting that the hearing examiner was diligent and thorough in his work on this case, including the way he conducted the
      hearing and the quality of his written work. The DeSoto and Pasadena decisions were handed down after he delivered his ruling, and
      his ruling was an interpretation of the precedent as it existed at the time of his ruling.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                             5
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

                                                                       flow from a party's failure to comply with the
                                                                       requirement.
                    288 S.W.3d 389
                 Supreme Court of Texas.                               14 Cases that cite this headnote
          CITY OF DESOTO, Texas, Petitioner,
                        v.                                       [2]   Statutes
             Justin WHITE, Respondent.                                      Jurisdictional statutes
                                                                       To determine whether a statutory requirement
           NO. 07–1031. | Argued Dec. 11,                              is jurisdictional, a court applies statutory
          2008. | Decided June 19, 2009.                               interpretation principles.

Synopsis                                                               21 Cases that cite this headnote
Background: Following former city police officer's
indefinite suspension by police chief, hearing examiner
upheld suspension. Officer appealed, alleging that hearing       [3]   Statutes
examiner lacked jurisdiction. The 160th District Court, Dallas              Plain Language; Plain, Ordinary, or
County, Nancy Thomas, J., entered summary judgment in                  Common Meaning
favor of officer. City appealed. The Court of Appeals, 232             When interpreting a statutory provision, a
S.W.3d 379, affirmed, and city filed petition for review.              court's goal is to ascertain legislative intent by
                                                                       examining the statute's plain language.

                                                                       13 Cases that cite this headnote
Holdings: The Supreme Court, Green, J., held that:

                                                                 [4]   Appeal and Error
[1] requirement that city inform officer of limited rights to
                                                                          Cases Triable in Appellate Court
appeal hearing officer decision was not jurisdictional;
                                                                       An appellate court reviews questions of statutory
[2] abatement was proper remedy for city's failure to inform           interpretation de novo.
officer of limited appeal rights; and
                                                                       7 Cases that cite this headnote
[3] officer was entitled to extension of ten-day appeal
deadline in order to decide whether to appeal before Civil       [5]   Statutes
Service Commission or hearing examiner.                                     Jurisdictional statutes
                                                                       Since the Legislature is bound to know the
                                                                       consequences of making a statutory requirement
Court of Appeals reversed; remanded to district court.
                                                                       jurisdictional, in trying to determine legislative
                                                                       intent, it must be determined whether the
                                                                       Legislature intended those consequences.
 West Headnotes (12)
                                                                       14 Cases that cite this headnote

 [1]    Courts
                                                                 [6]   Municipal Corporations
            Acts and proceedings without jurisdiction
                                                                          Reinstatement
        The failure of a jurisdictional requirement
                                                                       Statutory requirement, that city inform
        deprives a court of the power to act, other than to
                                                                       suspended police officer of limited right to
        determine that it has no jurisdiction, and ever to
                                                                       appeal from independent hearing examiner
        have acted, as a matter of law; if the requirement
                                                                       decision, was not jurisdictional, and thus
        is not jurisdictional, however, the tribunal may
                                                                       examiner's decision upholding suspension
        hear the case, although other consequences may
                                                                       was valid and officer was not entitled to



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

        reinstatement, even though city failed to                  right to appeal from a decision of an independent
        inform officer of requirement in letter outlining          hearing examiner after the examiner's review of
        officer's rights to review of suspension;                  an employment decision affecting the officer,
        although requirement was mandatory, statute                is to ensure that firefighters and police officers
        did not explicitly indicate that requirement was           are fully aware of a significant consequence that
        jurisdictional and did not require reinstatement           will result if they elect to have an independent
        of officer as a result of failure to fulfill               hearing examiner, rather than the Civil Service
        requirement. V.T.C.A., Local Government Code               Commission, hear their appeal. V.T.C.A., Local
        § 143.057(a).                                              Government Code § 143.057(a).

        7 Cases that cite this headnote                            8 Cases that cite this headnote


 [7]    Statutes                                            [11]   Municipal Corporations
             Mandatory or directory statutes                          Review in general
        Just because a statutory requirement is                    Municipal Corporations
        mandatory does not mean that compliance with                  Review
        it is jurisdictional.                                      Ten-day statutory deadline for a police officer or
                                                                   firefighter to appeal a suspension is to be strictly
        13 Cases that cite this headnote
                                                                   enforced when the officer's failure to appeal
                                                                   within deadline is attributable to the officer,
 [8]    Municipal Corporations                                     but when the officer's failure to appeal within
           Review in general                                       the deadline is not attributable to the officer,
        Abatement was the proper remedy for city's                 the statute permits a reasonable extension of
        failure to inform suspended police officer, in             time. V.T.C.A., Local Government Code §
        letter outlining officer's rights to review of             143.010(a).
        suspension, of his limited right to appeal if
                                                                   1 Cases that cite this headnote
        he chose to challenge suspension before an
        independent hearing examiner rather than before
        Civil Service Commission. V.T.C.A., Local           [12]   Municipal Corporations
        Government Code § 143.057(a).                                 Review in general
                                                                   Police officer was entitled to extension of ten-
        2 Cases that cite this headnote
                                                                   day deadline to appeal suspension, in order for
                                                                   officer to decide whether to appeal before Civil
 [9]    Statutes                                                   Service Commission or independent hearing
             Purpose                                               examiner, where city failed to inform officer
        When a statute is silent as to the consequences            of his limited right to appeal from hearing
        for noncompliance, a court looks to the statute's          examiner decision, and officer, in declining
        purpose in determining the proper remedy.                  to change his appeal election at hearing, may
                                                                   have reasonably relied on strict enforcement of
        3 Cases that cite this headnote                            ten-day deadline in City of Temple Firemen's
                                                                   and Policemen's Civil Service Commission v.
 [10]   Municipal Corporations                                     Bender. V.T.C.A., Local Government Code §§
           Review in general                                       143.057(a), 143.010(a).

        Municipal Corporations                                     5 Cases that cite this headnote
           Review
        Purpose of statute, requiring that a municipality
        inform a police officer or firefighter of limited



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

                                                                    White elected to appeal the suspension to a hearing examiner,
Attorneys and Law Firms                                             where he was represented by counsel. As soon as the hearing
                                                                    began, White complained that the examiner was without
*391 Peter G. Smith, Amber L. Slayton, Braden Ward
                                                                    jurisdiction to hear his appeal because the City's letter failed
Metcalf, Nichols Jackson Dillard Hager & Smith, LLP,
                                                                    to notify him of the appeal limitation, as required by the Code.
Dallas, TX, for Petitioner.
                                                                    In an attempt to rectify the omission, the examiner offered
Lance Franklin Wyatt, Attorney At Law, Arlington, TX,               White an abatement, a continuance, and the opportunity to
Rhonda Elaine Cates, Law Office of Rhonda E. Cates, PLLC,           change his election, all of which White refused. The examiner
Garland, TX, Randy Doubrava, Texas Municipal Police                 then proceeded with the hearing, finding that jurisdiction was
Assn., Austin, TX, for Respondent.                                  proper, as the City had substantially complied with the notice
                                                                    requirements under the Code. After the *392 hearing, the
Opinion                                                             examiner upheld White's suspension.

Justice GREEN delivered the opinion of the Court.                   White filed suit in district court, arguing that the examiner
                                                                    was without jurisdiction to hear his appeal. See id. §
A police officer who has been suspended from duty has a
                                                                    143.057(j) (permitting judicial review of hearing examiner
right to appeal that action to either a civil service commission
                                                                    decision on grounds that the examiner was without
or to an independent, third-party hearing examiner. If the
                                                                    jurisdiction). The trial court agreed, granting summary
officer appeals to a hearing examiner, his ability to seek
                                                                    judgment in favor of White and ordering the City to reinstate
further review in a district court is severely limited. The
                                                                    White, correct his employment records, and pay his attorney's
suspended police officer in this case elected to appeal to a
                                                                    fees. The court of appeals affirmed, holding that the notice
hearing examiner, but the City failed to inform him of the
                                                                    requirements under the Code were jurisdictional, and that
appeal limitation, as it was required to do by statute. The
                                                                    substantial compliance with those requirements did not
court of appeals concluded that the notification requirement
                                                                    suffice. 232 S.W.3d at 383–84. The court of appeals also held
is jurisdictional, and that its omission deprives a hearing
                                                                    that White could recover attorney's fees under the Code. Id.
examiner of authority to hear an appeal. 232 S.W.3d
                                                                    at 384.
379, 383–84. However, we hold that the pre-appeal notice
provision is not jurisdictional. Accordingly, we reverse the
                                                                    The City petitioned the Court, arguing: (1) the notice
court of appeals' judgment.
                                                                    provision is not jurisdictional; (2) even if it is jurisdictional,
                                                                    substantial compliance satisfies the notice requirements under
                                                                    the Code; and (3) if White is entitled to relief, the trial court's
                               I                                    grant of attorney's fees exceeded the remedies available
                                                                    under the Code. We agree with the City that notice of the
Justin White, a member of the DeSoto Police Department,
                                                                    appeal limitation as required by section 143.057(a) is not
was suspended following two internal investigations which
                                                                    jurisdictional. Therefore, we need not reach the City's other
the Department alleged revealed improper conduct. The
                                                                    two issues.
police chief delivered a letter of indefinite suspension to
White, alleging that he abused sick time policy, lied to an
investigator, and interfered with a prosecution, all of which
violated numerous department policies. The letter met almost                                        II
all of the applicable requirements required by statute. See
                                                                    Chapter 143 of the Local Government Code, known as the
generally TEX. LOC. GOV'T CODEE §§ 143.001–.363. It
                                                                    Fire Fighter and Police Officer Civil Service Act, outlines the
was issued timely, and it notified White that an appeal had
                                                                    disciplinary process by which a municipality may suspend
to be filed with either the Civil Service Commission or an
                                                                    an officer and how that officer may appeal the suspension.
independent third-party hearing examiner within ten days of
receipt. See id. §§ 143.052(c), (d); .057(a). However, the letter   TEX. LOC. GOV'T CODEE §§ 143.051–.057. 1 A police
did not notify White that an appeal to a hearing examiner           department may suspend an officer for a violation of civil
would limit his ability to seek further review with a district      service rules. Id. § 143.052(b). The officer may then appeal
court, as required by the Code. See id. § 143.057(a), (j).          the suspension to either the Fire Fighters' and Police Officers'
                                                                    Civil Service Commission, or an independent third-party


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

hearing examiner. Id. §§ 143.010, .053, .057(b). If the officer      of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d
appeals to the Commission, the officer may seek review               351, 359 (Tex.2004). 5 If the requirement is not jurisdictional,
of the Commission's decision with a district court, which            however, the tribunal may hear the case, although other
conducts a de novo review. Id. § 143.015(b). However, if             consequences may flow from a party's failure to comply with
the officer appeals to a hearing examiner, the officer waives        the requirement. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71,
subsequent review by a district court, id. § 143.057(c), except      75–77 (Tex.2000); see also Loutzenhiser, 140 S.W.3d at 359
“on the grounds that the [hearing examiner] 2 was without            (“The failure of a non-jurisdictional requirement mandated
jurisdiction or exceeded its jurisdiction or that the order was      by statute may result in the loss of a claim, but that failure
procured by fraud, collusion, or other unlawful means.” Id. §        must be timely asserted and compliance can be waived.”). We
143.057(j).                                                          recognized in Dubai that deeming a provision jurisdictional
                                                                     “opens the way to making judgments vulnerable to delayed
The Code specifies how the officer makes this appellate              attack for a variety of irregularities that perhaps better ought
election. Within 120 hours of the suspension, the department         to be sealed in a judgment.” Dubai, 12 S.W.3d at 76 (citing
head “shall ... file a written statement with the commission         RESTATEMENT (SECOND) OF JUDGMENTS § 12 cmt. b,
giving the reasons for the suspension,” and also immediately         at 118 (1982)). “[T]he modern direction of policy is to reduce
deliver a copy of the statement to the suspended officer. Id. §      the vulnerability of final judgments to attack on the ground
143.052(c). The statement, also referred to as a letter of *393      that the tribunal lacked subject matter jurisdiction.” Id. (citing
disciplinary action, 3 “must point out each civil service rule       RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt.
alleged to have been violated ... and must describe the alleged      e, at 113 (1982)). Because of these consequences, we have
acts of the person that the department head contends are in          been reluctant to conclude that a provision is jurisdictional,
violation of the civil service rules.” Id. § 143.052(e). It must     absent clear legislative intent to that effect. Id. at 75–76; see
inform the suspended officer that if he chooses to appeal, he        also Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d
                                                                     78, 83 (Tex.2008).
must file a written appeal within ten days 4 of receiving the
letter, id. § 143.052(d), and that he “may elect to appeal to
                                                                      *394 As an initial matter, White argues that Dubai's
an independent third party hearing examiner instead of to the
                                                                     reasoning does not apply here because Dubai dealt with a
commission.” Id. § 143.057(a). Of importance to this case, the
                                                                     court of general jurisdiction, whereas a hearing examiner is a
letter must also inform the officer “that if [he] elects to appeal
                                                                     tribunal of very limited jurisdiction as prescribed by statute.
to a hearing examiner, [he] waives all rights to appeal to a
                                                                     Dubai was a wrongful death action in which the deceased
district court,” id. § 143.057(a), except on the grounds that
                                                                     was a foreign citizen. 12 S.W.3d at 73. The plaintiff filed
“the arbitration panel was without jurisdiction or exceeded its
                                                                     suit under a statute, which permitted the claim as long as the
jurisdiction or that the order was procured by fraud, collusion,
                                                                     deceased's country had “equal treaty rights” with the United
or other unlawful means.” Id. § 143.057(j).
                                                                     States. Id. at 74. We held that the plaintiff did not have to
                                                                     establish “equal treaty rights” to invoke the jurisdiction of
Here, it is undisputed that the letter of disciplinary action
                                                                     the trial court. Id. at 73. In reaching this conclusion, we
failed to inform White that if he elected to appeal to a hearing
                                                                     rejected an earlier distinction we had made when reviewing
examiner, his rights of review by a district court were waived,
                                                                     jurisdictional questions, where we differentiated between
except under limited circumstances. See id. § 143.057(a),
                                                                     specially-created statutory claims and common-law claims.
(c), (j). The question is whether that omission deprived the
                                                                     Id. at 76 (overruling Mingus v. Wadley, 115 Tex. 551,
hearing examiner of jurisdiction to hear the appeal.
                                                                     285 S.W. 1084 (1926), “to the extent that it characterize
                                                                     the plaintiff's failure to establish the statutory prerequisite
                                                                     as jurisdictional”). Instead, we adopted an approach to
                               III                                   jurisdictional questions designed to strengthen finality and
                                                                     reduce the possibility of delayed attacks on judgments,
                                                                     regardless of whether the claim was anchored in common
                                A
                                                                     law or was a specially-created statutory action. Id. at 75–76.
 [1] “The failure of a jurisdictional requirement deprives the       Thus, White misses our focus, post-Dubai. We recognize that
court of the power to act (other than to determine that it has no    a hearing examiner is a tribunal of very limited jurisdiction,
jurisdiction), and ever to have acted, as a matter of law.” Univ.    and that it exercises special functions as dictated by statute.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 4
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

See TEX. LOC. GOV'T CODEE § 143.057. But even though
the examiner hears a limited type of case, consistent with           [6] We consider a number of factors in determining whether
Dubai, our focus is to avoid a result that leaves the decisions     the Legislature intended that a provision be jurisdictional. See
and judgments of the hearing examiner in limbo and subject          generally Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495
to future attack, unless that was the Legislature's clear intent.   (Tex.2001). But, as with any statute, we begin with the text.
See Igal, 250 S.W.3d at 84.                                         Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d
                                                                    86, 89 (Tex.2001); Helena Chem., 47 S.W.3d at 493. Section
White argues that in an administrative context, the possibility     143.057(a) provides:
of a delayed attack on a judgment is not present, in part
because a later challenge to subject-matter jurisdiction is                      In addition to the other notice
limited to the appeal process outlined in the Code. See TEX.                     requirements prescribed by this
LOC. GOV'T CODEE § 143.057(j) (permitting appeal to                              chapter, the written notice for a
district court from hearing examiner “only on the grounds                        promotional bypass or the letter
that the [hearing examiner] was without jurisdiction or                          of disciplinary action, as applicable,
exceeded its jurisdiction or that the order was procured by                      issued to a fire fighter or police
fraud, collusion, or other unlawful means”). White cites no                      officer must state that in an
authority for this proposition, and we are not convinced                         appeal of an indefinite suspension,
that a delayed attack on an administrative judgment is an                        a suspension, a promotional bypass,
illusory concern. See, e.g., RESTATEMENT (SECOND)                                or a recommended demotion, the
OF JUDGMENTSSSS § 12 cmt. e., at 123 (1982) (“There                              appealing fire fighter or police officer
remain courts and administrative tribunals staffed by judges                     may elect to appeal to an independent
untrained in law or whose jurisdiction is so narrow as to                        third party hearing examiner instead of
be nearly ministerial. The opportunity to challenge subject                      to the commission. The letter must also
matter jurisdiction in such a forum may therefore be                             state that if the fire fighter or police
inadequate. When this is so, a challenge to subject matter                       officer elects to appeal to a hearing
jurisdiction may properly be permitted through subsequent                        examiner, the person waives all rights
attack on the judgment.”); see also Igal, 250 S.W.3d at 83                       to appeal to a district court except as
(applying Dubai's reasoning in an administrative context).                       provided by Subsection (j).

                                                                    TEX. LOC. GOV'T CODEE § 143.057(a) (emphasis added).
Consistent with Dubai, then, we begin with the presumption
                                                                    Subsection (j) states the limited exception: “[a] district court
that the Legislature did not intend to make the notice under
                                                                    may hear an appeal of a hearing examiner's award only on the
section 143.057(a) jurisdictional; a presumption overcome
                                                                    grounds that the [hearing examiner] was without jurisdiction
only by clear legislative intent to the contrary.
                                                                    or exceeded its jurisdiction or that the order was procured by
                                                                    fraud, collusion, or other unlawful means.” Id. § 143.057(j).

                               B                                     Section 143.057(a) clearly requires that the letter notify the
                                                                     officer of the appeal limitation. It provides that the letter
 [2]      [3]      [4]       [5]     To determine whether           amust inform the officer of the limitation. Id. § 143.057(a).
statutory requirement is jurisdictional, we apply statutory          The Code Construction Act explains that “ ‘must’ creates or
interpretation principles. Igal, 250 S.W.3d at 84. As with any       recognizes a condition precedent,” TEX. GOV'T CODE §
statutory provision, our goal is to ascertain legislative intent     311.016(3), and we have recognized that “must” generally
by examining the statute's plain language. F.F.P. Operating          means mandatory. Helena Chem., 47 S.W.3d at 493. The
Partners, L.P. v. Duenez, 237 S.W.3d 680, 684 (Tex.2007).            rest of the Code and its apparent objective also indicate
We review this statutory interpretation question de novo. Id.        this provision is mandatory. See id. at 494 (“To determine
at 683. *395 “Since the Legislature is bound to know the             whether the Legislature intended a provision to be mandatory
consequences of making a requirement jurisdictional, one             or directory, we consider the plain meaning of the words
must ask, in trying to determine legislative intent, whether the     used, as well as the entire act, its nature and object, and the
Legislature intended those consequences.” Loutzenhiser, 140          consequences that would follow from each construction.”).
S.W.3d at 359.                                                       The Code establishes two alternative means for officers to


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

appeal: to the Commission or to the hearing examiner. TEX.           143.052(f). By arguing that the City's failure to provide
LOC. GOV'T CODEE §§ 143.053, .057. These two avenues                 the required notice is jurisdictional, White seeks the same
of appeal, however, diverge on the right to further judicial         remedy provided for in section 143.052(f)—dismissal. In
review. If the officer does not know of these limitations, then      fact, the trial court dictated this very result in its order granting
the officer is unable to properly assess which appeal route to       summary judgment in favor of White. However, “[w]hen
take. This notice protects the officer's appellate rights. Thus,     the Legislature includes a right or remedy in one part of a
we hold that the notice provision under section 143.057(a) is        code but omits it in another, that may be precisely what the
mandatory.                                                           Legislature intended,” and “we must honor that difference.”
                                                                     PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship,
 [7] But “just because a statutory requirement is mandatory          146 S.W.3d 79, 84 (Tex.2004). So, we must assume the
does not mean that compliance with it is jurisdictional.”            Legislature did not intend that a dismissal be the consequence
Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex.1999).       for noncompliance.
The Code does not contain any explicit language indicating
that this notice requirement is jurisdictional. White points         Finally, we look to “the consequences that result from
to another provision, section 311.034 of the Government              each possible interpretation.” Helena Chem., 47 S.W.3d at
Code, and argues that it provides the language necessary to          495. One possible interpretation is that section 143.057(a)'s
deem this notice requirement jurisdictional. Section 311.034,        notice requirement is jurisdictional. The consequence of this
part of the Code Construction Act, provides: “Statutory              interpretation is evident in this very case. The trial court's
prerequisites to a suit, including the provision of notice, are      order reinstated White, permitting him to rejoin the police
jurisdictional requirements in all suits against a governmental      force without an adjudication of the very serious allegations
entity.” TEX. GOV'T CODE § 311.034. But this provision               against him. 6 Reinstating an officer in this situation is
does not control in this *396 case. First, this provision does       troubling, given the vital role of police officers and fire
not apply to the construction of all statutes. Section 311.034       fighters in our society, and the need for continued public trust
specifically addresses waivers of sovereign immunity, an             in the exercise of their duties. See Code Construction Act,
issue not implicated here. See id. (“In order to preserve            TEX. GOV'T CODE § 311.021(5) (“In enacting a statute, it
the [L]egislature's interest in managing state fiscal matters        is presumed that ... public interest is favored over any private
through the appropriations process, a statute shall not be           interest”). This cannot be the result the *397 Legislature
construed as a waiver of sovereign immunity unless the waiver        intended, especially where an interpretation which concludes
is effected by clear and unambiguous language.” (emphasis            that the provision is not jurisdictional would still protect the
added)). Also, the notice requirement here is not a statutory        officer's appellate rights, as discussed below.
prerequisite to suit. As noted below, the statute requires
notice, but it does not specifically mandate it as a prerequisite
to suit or appeal. Thus, the text of the statute does not indicate
that the Legislature intended the provision to be jurisdictional.                                     C

                                                                     White urges that our decision in City of Temple Firemen's and
We have also looked for “the presence or absence of
                                                                     Policemen's Civil Service Commission v. Bender precludes
specific consequences for noncompliance” in determining
                                                                     a finding that the notice provision is non-jurisdictional. 787
whether a provision is jurisdictional. Helena Chem., 47
                                                                     S.W.2d 951 (Tex.1990) (per curiam). Bender recognized
S.W.3d at 495. Here, the statute does not provide a specific
                                                                     the need for strict adherence to the Code when an officer
consequence for noncompliance. See generally TEX. LOC.
                                                                     invokes the Civil Service Commission appellate process. See
GOV'T CODEE §§ 143.001–.363. As a comparison, section
                                                                     generally id. at 951. In Bender, the question was “whether
143.052(e) provides that the letter of disciplinary action
                                                                     a civil service commission's jurisdiction has been invoked
provided to the officer “must point out each civil service
                                                                     under section 143.010(b) of the Texas Local Government
rule alleged to have been violated ... and must describe
                                                                     Code if a fire fighter's or police officer's notice of appeal
the alleged acts.” Id. § 143.052(e). Subsection (f) provides
                                                                     fails to allege the basis of the appeal.” Id. Section 143.010(b)
the remedy: “If the department head does not specifically
                                                                     provides:
point out in the written statement the act or acts of the ...
police officer that allegedly violated the civil service rules,                    The appeal must include the basis
the commission shall promptly reinstate the person.” Id. §                         for the appeal and a request for



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    6
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

             a commission hearing. The appeal                       469–70 (Tex.1992) (holding that defendant had waived pre-
             must also contain a statement denying                  suit notice requirement under the Deceptive Trade Practices–
             the truth of the charge as made, a                     Consumer Protection Act by failing to request *398 an
             statement taking exception to the legal                abatement). Thus, Bender is distinguishable. 7
             sufficiency of the charge, a statement
             alleging that the recommended action
             does not fit the offense or alleged
             offense, or a combination of these                                                    D
             statements.
                                                                    For these reasons, we hold that the City's failure to provide the
TEX. LOC. GOV'T CODEE § 143.010(b). Officer Bender                  mandatory notice under section 143.057(a) did not deprive
was suspended indefinitely and attempted to appeal to the           the hearing examiner of jurisdiction to hear White's appeal.
Civil Service Commission. Bender, 787 S.W.2d at 951–52.
His attorney mailed a letter to the Commission, advising
of Bender's intention to appeal, but the letter failed to                                          IV
list the specific grounds for appeal as required by section
143.010(b). Id. at 952. After the city attorney notified him         [8] [9] [10] Having determined that the notice provision
of the omission, Bender submitted an amended notice, which          is not jurisdictional, we must determine the proper remedy,
the Commission refused as untimely under the ten-day                if any, for the City's failure to comply. “When the statute
deadline imposed by the Code. Id.; see also TEX. LOC.               is silent as to the consequences for noncompliance, we look
GOV'T CODEE § 143.010(a). We held that “one of the                  to the statute's purpose in determining the proper remedy.”
statements contained within section 143.010(b) is required          Helena Chem., 47 S.W.3d at 493. Section 143.001(a)
to be included in a notice of appeal in order to invoke the         provides:
jurisdiction of a civil service commission,” and because his
                                                                                 The purpose of this chapter is to secure
first notice did not, Bender failed to invoke the Commission's
                                                                                 efficient fire and police departments
jurisdiction. Bender, 787 S.W.2d at 952. We then held that
                                                                                 composed of capable personnel who
Bender's amended notice of appeal also failed to invoke the
                                                                                 are free from political influence and
jurisdiction of the Commission because the ten-day deadline
                                                                                 who have permanent employment
under section 143.010(a) “is mandatory and must be strictly
                                                                                 tenure as public servants.
followed.” Id. at 953.
                                                                    TEX. LOC. GOV'T CODEE § 143.001(a). As discussed
White argues Bender dictates that a failure to meet a particular    above, dismissal of the case and the charges against the
statutory requirement must be jurisdictional. But Bender            officer cannot be the remedy. The statute's purpose of
focused on whether the officer had timely and properly              seeking “efficient” and “capable” personnel is not served by
invoked the Commission's jurisdiction—ensuring the case             dismissing the case and permitting potentially unfit officers to
was properly before the Commission. Id. at 951–53; see              return to the force without a determination of the substance of
also Essenburg v. Dallas County, 988 S.W.2d 188, 189                the complaint against them. At the same time, the possibility
(Tex.1998) (per curiam) (citing Morrow v. Corbin, 122               of imposing no consequences is troubling, given that the
Tex. 553, 62 S.W.2d 641, 644 (1933) and noting that the             required notice is intended to inform the officer of important
hallmark of a jurisdictional provision is that it “seeks to         appellate rights. The provision is certainly an important
assure the appropriate body adjudicates the dispute”). Under        one: “The Legislature's apparent purpose in [enacting the
the Civil Service Code, only a police officer or fire fighter       provision] was to ensure that fire fighters and police officers
may invoke the appeals process. See TEX. LOC. GOV'T                 are fully aware of a significant consequence that will result
CODEE §§ 143.010(a); .057(a); see also City of Houston              if they elect to have an independent hearing examiner, rather
v. Clark, 197 S.W.3d 314, 318 (Tex.2006). Thus, when it             than the Commission, hear their appeal.” Clark, 197 S.W.3d
comes to invoking the jurisdiction of the Commission or             at 319–20. Thus, we believe the statute requires some remedy.
hearing examiner, the focus must always be on the officer's
actions. The City's notice letter does not invoke the appeals       An abatement is generally appropriate to cure pre-suit notice
process. It is similar to a pre-suit notice requirement, which is   deficiencies. Hubenak v. San Jacinto Gas Transmission Co.,
not jurisdictional. See, e.g., Hines v. Hash, 843 S.W.2d 464,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               7
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

141 S.W.3d 172, 184 (Tex.2004) (holding that abatement,             that the City could not amend the original charges, as the
for a reasonable period of time, rather than dismissal, is          Code prevented it: “In any Civil Service hearing hereunder,
appropriate remedy until parties meet the pre-suit requirement      the department head [the Chief] is hereby restricted to his
that they are “unable to agree” on the amount of damages            original written statement and charges which shall not be
in a condemnation proceeding); Hines, 843 S.W.2d at 468             amended.” Id. at 286 (citing section 16 of the Fireman's and
(holding that abatement is proper remedy for failure to             Policeman's Civil Service Act) (emphasis in original). 8 We
give pre-suit notice in Deceptive Trade Practices–Consumer          reasoned that a second set of charges were equivalent to
Protection Act case); Schepps v. Presbyterian Hosp. of              an amendment to the original written statement, which was
Dallas, 652 S.W.2d 934, 938 (Tex.1983) (holding that                prohibited under the Code. See id. at 286–87. We also stated
abatement is appropriate for failure to give notice in health       that, even if the second set of charges were considered new,
care liability claim). We recognize the statute here is unique.     “original” charges, these would be barred by the 120–hour
Normally, the party that eventually files suit is required          deadline for filing charges following the suspension. Id. at
to provide pre-suit notice. See, e.g., Hines, 843 S.W.2d at
                                                                    287. 9 We summarized the barriers to any new or amended
465. Under the Civil Service Act, however, *399 the City
                                                                    charges:
provides notice, and then the officer appeals. We nonetheless
conclude that an abatement is the appropriate remedy because
it cures the notice omission: it allows the City to notify White      If the new charges be regarded as corrections to the original
of his appellate rights without dismissing a case against a           charges arising out of the same incident, they were invalid
potentially unfit officer, and it allows White an opportunity         under that part of the statute prohibiting amendment of the
to make an appellate election with full knowledge of the              charges. If they were new ‘original’ charges arising out of
consequences of choosing each path.                                   the same incident, they came long after 120 hours from
                                                                      Carver's suspension on September 19. They were thus filed
White argues the statute does not permit an abatement                 too late.
because a ten-day election deadline is imposed on White, a             *400 Id. The dissent pointed out a third barrier: new,
deadline long since passed. See TEX. LOC. GOV'T CODEE                 “original” charges would likely be precluded by the rule
§ 143.052(d) (“[T]he [fire fighter or police officer] must file       that the department may not suspend an officer for acts
a written appeal with the commission within 10 days after             that occurred more than six months (now 180 days) prior
the date the person receives the copy of the [disciplinary]
                                                                       to the suspension. Id. at 290 (Culver, J. dissenting). 10
statement.”). He contends that the abatement remedy, or a
                                                                       Thus, Bichsel laid out a strict rule against amended letters
dismissal allowing him to make a new election after the City
                                                                       of disciplinary action, and recognized the strict time
provides the appropriate notice, is precluded by our decisions
                                                                       constraints preventing the use of replacement letters. 321
in Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284 (1959),
                                                                       S.W.2d at 287.
and Bender, 787 S.W.2d 951. We disagree, and hold that an
                                                                     [11] Bender set out its own strict rules. As discussed
abatement is appropriate under the Code, as well as under
                                                                    above, we held in Bender that the ten-day deadline to elect
Bichsel's and Bender's analyses.
                                                                    whether to appeal to the Commission or to the hearing
                                                                    examiner “is mandatory and must be strictly followed.”
In Bichsel, we analyzed a City's ability to amend a written
                                                                    787 S.W.2d at 953. Thus, Bichsel and Bender both require
statement filed with the Civil Service Commission. 321
S.W.2d at 285. The chief of police suspended Officer Carver,        strict adherence to the Code's requirements. 11 Bichsel
alleging that he violated police department rules. Id. Carver       restricts the City to its original letter in proceedings before
appealed to the Commission, arguing that the charges were           the Commission, while Bender requires that appellants
legally insufficient because the Code required an allegation        (police officers and fire fighters) strictly adhere to the
that the officer violated the civil service rules. Id. The City     appeal invocation requirements. Nonetheless, an abatement
agreed and withdrew the charges, reinstated Carver, and then        is permissible under Bichsel's and Bender's frameworks. We
the Chief re-suspended him the following day. Id. The City          find nothing under the Code to prevent the hearing examiner
then filed a second set of charges, this time properly alleging a   from doing what he did in this case—offering White an
violation of the civil service rules. Id. Before the Commission     abatement and a chance to change his election, having full
could hold a hearing, Carver sought injunctive and mandamus         knowledge of the appeal limitations. An amended letter of
relief in district court, which was granted. Id. We held            disciplinary action is not necessary, as long as the officer has
                                                                    actual knowledge of the appeal limitation when he makes his


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              8
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

                                                                        59. However, we recognize that, in making his decision to
election. The purpose of the notice provision is satisfied by
                                                                        decline the opportunity to change his election, White could
ensuring the officer has this knowledge in some way, prior
                                                                        have been reasonably relying on Bender's strict enforcement
to making the election. See Clark, 197 S.W.3d at 319–20
                                                                        of the ten-day election deadline. Under these circumstances,
(finding that the purpose of the provision “was to ensure that
                                                                        White should be given an opportunity to make a new election.
fire fighters and police officers are fully aware of a significant
                                                                        Although not directly applicable, section 16.064 of the Texas
consequence”). During the abatement, should the officer
                                                                        Civil Practice and Remedies Code provides us guidance.
choose to change his election and appeal to the Commission,
                                                                        Section 16.064 suspends the limitations period when a party
the hearing examiner may dismiss the case, so that the officer
                                                                        mistakenly, and in good faith, files suit in one court, when
is permitted a reasonable time to appeal to the Commission.
                                                                        jurisdiction was only proper in another, so that the plaintiff
The Code requires an appeal within ten days of the notice
                                                                        has an opportunity to re-file the case. TEX. CIV. PRAC. &
of suspension, a requirement strictly enforced in Bender.
                                                                        REM.CODE § 16.064. We conclude that the same policy
See TEX. LOC. GOV'T CODEE § 143.010(a); Bender, 787
                                                                        reasons behind section 16.064 apply here to permit White
S.W.2d at 953. But in interpreting this deadline, we must
                                                                        an opportunity to make a new election. For these reasons,
presume the Legislature intended “a just and reasonable
                                                                        we remand the case to the district court with instructions
result” and “a result feasible of execution.” TEX. GOV'T
                                                                        to remand to the hearing examiner, so that White has an
CODE § 311.021(3), (4). Therefore, we hold that Bender
                                                                        opportunity to make an appellate election with full knowledge
applies when the officer's failure to appeal within the ten-
                                                                        of his appellate rights and with knowledge of our guidance in
day deadline is attributable to the officer, but when, as here,
                                                                        this opinion.
the officer's failure to appeal within the deadline is not
attributable to the officer, the statute permits a reasonable
extension of time. 12
                                                                                                         VI

                                                                        We reverse the court of appeals' judgment and remand the
                                V                                       case to the district court for further proceedings in accordance
                                                                        with this opinion. See TEX.R.APP. P. 60.3 (permitting
 [12] Officer White was given an opportunity to change his
                                                                        remand in the interest of justice).
election by the hearing *401 examiner before the hearing
commenced. He declined. Generally, because we hold that
the notice provision is not jurisdictional, we would also hold          Parallel Citations
White waived any complaint of the omission, given that
White had full knowledge of the appeal limitation under                 29 IER Cases 555, 52 Tex. Sup. Ct. J. 893
section 143.057(j). See Loutzenhiser, 140 S.W.3d at 358–


Footnotes
1       The Code distinguishes between municipalities with a population of less than 1.5 million, and those with a population of 1.5 million
        or more. See, e.g., TEX. LOC. GOV'T CODEE §§ 143.201–.209; 143.101–.135 (both subchapters addressing municipalities with
        population of 1.5 million or more). While there are some differences between the two schemes, the appellate process provisions are
        similar. Compare id. §§ 143.053, .057, with id. §§ 143.1015, .1016. Thus, our holding with regard to the non-jurisdictional nature of
        the notice provision applies with equal force under each scheme. See City of Houston v. Clark, 197 S.W.3d 314, 317 n. 4 (Tex.2006)
        (noting that, even though the case implicated a municipality a with a population of more than 1.5 million, the decision also applied
        to those municipalities with less than 1.5 million people).
2       This provision uses the term “arbitration panel,” rather than “hearing examiner.” TEX. LOC. GOV'T CODEE § 143.057(c). However,
        we have noted that “arbitration panel” is synonymous with “hearing examiner” in this context. Clark, 197 S.W.3d at 318 n. 5.
3       The Code refers to a “written statement” and a “letter of disciplinary action.” Compare, e.g., TEX. LOC. GOV'T CODEE § 143.057(a),
        with id. § 143.052(d). These terms appear to refer to the same document. For purposes of this opinion, we will not make a distinction
        between the two and will refer to the document provided to White as a “letter of disciplinary action.” See id. § 143.057(a).
4       An officer working for a municipality with a population of 1.5 million or more has fifteen days to file an appeal. TEX. LOC. GOV'T
        CODE E § 143.1015(a).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       9
City of DeSoto v. White, 288 S.W.3d 389 (2009)
29 IER Cases 555, 52 Tex. Sup. Ct. J. 893

5      We recently noted in that “[a]lthough the Legislature subsequently provided that the notice requirement at issue in Loutzenhiser was
       jurisdictional, the Court's reasoning [with regard to statutory analysis of alleged jurisdictional provisions] remains valid.” Igal v.
       Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 84 (Tex.2008).
6      The City alleged White abused the Department's sick time policy during a holiday weekend and subsequently lied to a supervisor
       about his actions. The City states that, due to an internal investigation which found White was untruthful, the District Attorney's
       office was forced to alert defense counsel in all pending cases in which White was a potential witness, which the City states lead to
       the dismissal of twenty-one pending criminal cases. The City also alleges that White asked “an Assistant District Attorney to reduce
       or drop charges against an individual he had arrested for driving while under the influence of alcohol” and that after failing to appear
       at trial, White informed the prosecutor “that he had become friends with the suspect and despite having effectuated the arrest, he
       could no longer testify that the suspect was intoxicated.”
7      Two other cases cited by White are distinguishable for the same reasons. See City of Lubbock v. Elkins, 896 S.W.2d 346, 352
       (Tex.App.-Amarillo 1995, no writ) (citing Bender, 787 S.W.2d at 953, and holding that an officer's failure to file an appeal within ten
       days of receiving a copy of the written statement of charges deprived the Commission of jurisdiction under section 143.052(d)); City
       of Plano Firefighters' & Police Officers' Civil Serv. Comm'n v. Maxam, 685 S.W.2d 125, 128 (Tex.App.-Dallas 1985, writ ref'd n.r.e.)
       (holding that because the officer failed to list the specific basis for appeal as required under the Civil Service Code, the Commission
       lacked jurisdiction to hear the appeal). Each of these cases, including Bender, were issued prior to Dubai, where we extended the
       presumption against jurisdictional findings from common-law claims to statutory actions. See Dubai, 12 S.W.3d at 75. We note this,
       not to call into question Bender's continuing applicability, but rather, to emphasize the proper focus in this jurisdictional inquiry.
8      Bichsel analyzed former section 16 of the Civil Service Act, which is now codified in substantially similar form at section 143.053(c)
       of the Local Government Code. 321 S.W.2d at 286; see also TEX. LOC. GOV'T CODEE § 143.053(c).
9      The 120–hour rule is now codified at section 143.052(c) of the Local Government Code. TEX. LOC. GOV'T CODEE § 143.052(c) (“If
       the department head suspends a fire fighter or police officer, the department head shall, within 120 hours after the hour of suspension,
       file a written statement with the commission giving the reasons for the suspension. The department head shall immediately deliver
       a copy of the statement in person to the suspended fire fighter or police officer.”)
10     The 180–day rule is codified at section 143.052(h) of the Local Government Code. TEX. LOC. GOV'T CODEE § 143.052(h) (“In
       the original written statement and charges and in any hearing conducted under this chapter, the department head may not complain
       of an act that occurred earlier than the 180th day preceding the date the department head suspends the fire fighter or police officer.”).
11     We have recognized the Code's strict requirements in other contexts, stating that “[t]he full performance of all conditions established
       by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matter of the removal
       of an officer.” City of Sherman v. Arnold, 148 Tex. 516, 226 S.W.2d 620, 622 (1950). In Arnold, the City of Sherman attempted
       to suspend Arnold before the newly-appointed Civil Service Commission had completed all of the steps necessary to set up the
       Commission—namely, promulgating rules and regulations to govern its functions. Id.
12     We are not presented with a situation where the officer first became aware of the appellate limitations during the midst of the hearing,
       or after the hearing examiner's judgment was issued. White argued from the start that the hearing examiner was without jurisdiction,
       at which time the examiner offered an abatement. We see nothing in the Code preventing a hearing examiner from informing the
       police officer or fire fighter of the appellate limitations at the start of the hearing, so as to avoid this type of situation. We also note
       that the Code grants the hearing examiner discretion in conducting the hearing. See TEX. LOC. GOV'T CODEE § 143.010(g) (“the
       commission shall conduct the hearing fairly and impartially as prescribed by this chapter and shall render a just and fair decision”);
       § 143.057(f) (“the hearing examiner has the same duties and powers as the commission”).


End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           10
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

                                                                      would be the result. Vernon's Ann.Texas Const.
                                                                      Art. 1, § 17.
                      168 S.W.3d 802
                  Supreme Court of Texas.                             2 Cases that cite this headnote
             The CITY OF KELLER, Petitioner,
                           v.                                   [2]   Appeal and Error
        John W. WILSON, Grace S. Wilson, Johnny                          Total failure of proof
       L. Wilson and Nancy A. Wilson, Respondents.                    The traditional scope of no-evidence review
                                                                      does not disregard contrary evidence if there is
            No. 02–1012. | Argued Oct. 19,                            no favorable evidence, or if contrary evidence
          2004. | Decided June 10, 2005.                              renders supporting evidence incompetent or
           | Rehearing Denied Sept. 2, 2005.                          conclusively establishes the opposite.

Synopsis                                                              268 Cases that cite this headnote
Background: Landowners brought action against city to
recover damages for inverse condemnation and for violations
                                                                [3]   Appeal and Error
of Water Code. The 96th District Court, Tarrant County,
                                                                         Sufficiency of Evidence in Support
Jeff Walker, J., entered judgment on jury verdict in favor of
landowners. City appealed. The Fort Worth Court of Appeals,           When conducting a legal-sufficiency review,
86 S.W.3d 693, affirmed. City filed petition for review.              evidence can be disregarded whenever
                                                                      reasonable jurors could do so, an inquiry that is
                                                                      necessarily fact-specific.

Holdings: The Supreme Court, Brister, J., held that:                  119 Cases that cite this headnote

[1] both the “exclusive” and “inclusive” standards for no-
                                                                [4]   Appeal and Error
evidence review are correct, in that the two standards reach
                                                                         Sufficiency of Evidence in Support
the same result, and
                                                                      When courts conducting legal-sufficiency
[2] no evidence established that city's approval of revised           review use the “exclusive” standard and
drainage plans, which resulted in flooding of landowners'             disregard contrary evidence, they must recognize
farm property, was an intentional taking.                             certain exceptions to it.

                                                                      2 Cases that cite this headnote
Judgment of Court of Appeals reversed; case remanded.
                                                                [5]   Libel and Slander
O'Neill, J., filed concurring opinion in which Medina, J.,                Construction of language used
joined.                                                               Publications alleged to be defamatory must be
                                                                      viewed as a whole—including accompanying
                                                                      statements, headlines, pictures, and the general
 West Headnotes (54)                                                  tenor and reputation of the source itself.

                                                                      3 Cases that cite this headnote
 [1]      Eminent Domain
             Nature and grounds in general
                                                                [6]   Appeal and Error
          To recover damages from city for inverse                       Review of constitutional questions
          condemnation, landowners had to prove the city
                                                                      A court reviewing legal sufficiency, in an
          intentionally took or damaged their property
                                                                      action alleging a defamatory publication, cannot
          for public use, or was substantially certain that
                                                                      disregard parts of a publication, considering only



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

        false statements to support a plaintiff's verdict or
        only true ones to support a defense verdict.                  2 Cases that cite this headnote

        4 Cases that cite this headnote
                                                               [12]   Judgment
                                                                          Evidence to sustain judgment
 [7]    Contracts                                                     Judgment
            Construction as a whole                                       Defects and objections
        Reviewing courts must construe contracts as a                 Incompetent evidence is legally insufficient to
        whole; courts do not consider only the parts                  support a judgment, even if admitted without
        favoring one party and disregard the remainder,               objection.
        as that would render the latter meaningless.
                                                                      11 Cases that cite this headnote
        10 Cases that cite this headnote

                                                               [13]   Appeal and Error
 [8]    Contracts                                                        Extent of Review
            Construing instruments together
                                                                      Evidence showing supporting evidence to
        Writings executed at different times must be                  be incompetent cannot be disregarded when
        considered together if they pertain to the same               conducting legal-sufficiency review, even if the
        transaction.                                                  result is contrary to the verdict.

        4 Cases that cite this headnote                               3 Cases that cite this headnote


 [9]    Appeal and Error                                       [14]   Appeal and Error
           Sufficiency of Evidence in Support                            Extent of Review
        In reviewing intentional infliction of emotional              Evidence
        distress claims for legal sufficiency, appellate                  Opinions of Witnesses in General
        court considers the context and the relationship
                                                                      When expert testimony is required, lay evidence
        between the parties.
                                                                      supporting liability is legally insufficient; in such
        4 Cases that cite this headnote                               cases, a no-evidence review cannot disregard
                                                                      contrary evidence showing the witness was
                                                                      unqualified to give an opinion.
 [10]   Appeal and Error
           Sufficiency of Evidence in Support                         7 Cases that cite this headnote
        When conducting legal-sufficiency review,
        evidence cannot be taken out of context in a way       [15]   Appeal and Error
        that makes it seem to support a verdict when in                  Extent of Review
        fact it never did.
                                                                      If an expert's opinion is based on certain
        4 Cases that cite this headnote                               assumptions about the facts, an appellate
                                                                      court conducting legal-sufficiency review cannot
                                                                      disregard evidence showing those assumptions
 [11]   Appeal and Error                                              were unfounded.
           Extent of Review
        If evidence may be legally sufficient in one                  10 Cases that cite this headnote
        context but insufficient in another, the context
        cannot be disregarded when conducting legal-           [16]   Appeal and Error
        sufficiency review, even if that means rendering                  Matters or Evidence Considered in
        judgment contrary to the jury's verdict.                      Determining Question



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

        An appellate court conducting a no-evidence                      Matters or Evidence Considered in
        review cannot consider only an expert's bare                 Determining Question
        opinion, but must also consider contrary                     An appellate court conducting a legal-
        evidence showing it has no scientific basis.                 sufficiency review cannot disregard undisputed
                                                                     evidence that allows of only one logical
        5 Cases that cite this headnote
                                                                     inference; by definition, such evidence can be
                                                                     viewed in only one light, and reasonable jurors
 [17]   Appeal and Error                                             can reach only one conclusion from it.
           Total failure of proof
                                                                     55 Cases that cite this headnote
        Evidence that might be “some evidence” when
        considered in isolation is nevertheless rendered
        “no evidence” when contrary evidence shows it         [22]   Evidence
        to be incompetent.                                               Uncontroverted evidence
                                                                     Trial
        4 Cases that cite this headnote
                                                                          Uncontroverted facts or evidence
                                                                     Jurors are not free to reach a verdict contrary
 [18]   Appeal and Error                                             to undisputed evidence that allows of only one
           Sufficiency of Evidence in Support                        logical inference; indeed, uncontroverted issues
        In claims or defenses supported only by meager               need not be submitted to a jury at all.
        circumstantial evidence, the evidence does not
        rise above a scintilla, and thus is legally                  7 Cases that cite this headnote
        insufficient, if jurors would have to guess
        whether a vital fact exists.                          [23]   Appeal and Error
                                                                        Sufficiency of Evidence in Support
        131 Cases that cite this headnote
                                                                     Undisputed contrary evidence becomes
                                                                     conclusive, and thus cannot be disregarded when
 [19]   Appeal and Error                                             conducting legal-sufficiency review, when it
           Inferences from facts proved                              concerns physical facts that cannot be denied.
        When the circumstances are equally consistent
        with either of two facts, neither fact may be                8 Cases that cite this headnote
        inferred, and the appellate court must view each
        piece of circumstantial evidence, not in isolation,   [24]   Appeal and Error
        but in light of all the known circumstances.                    Sufficiency of Evidence in Support

        15 Cases that cite this headnote                             Undisputed contrary evidence may become
                                                                     conclusive, such that it cannot be disregarded
                                                                     when conducting legal-sufficiency review, when
 [20]   Appeal and Error                                             a party admits it is true.
           Sufficiency of Evidence in Support
        When the circumstantial evidence of a vital                  23 Cases that cite this headnote
        fact is meager, a reviewing court conducting
        legal-sufficiency review must consider not just       [25]   Appeal and Error
        favorable but all the circumstantial evidence, and              Sufficiency of Evidence in Support
        competing inferences as well.
                                                                     Evidence is conclusive, such that it cannot
        281 Cases that cite this headnote                            be disregarded during legal-sufficiency review,
                                                                     only if reasonable people could not differ in their
                                                                     conclusions, a matter that depends on the facts of
 [21]   Appeal and Error                                             each case.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

                                                                    standard, under which all contrary evidence is
        214 Cases that cite this headnote                           disregarded.

                                                                    1 Cases that cite this headnote
 [26]   Appeal and Error
           Sufficiency of Evidence in Support
        For purposes of conducting legal-sufficiency         [31]   Appeal and Error
        review, undisputed evidence and conclusive                     Province of jury
        evidence are not the same—undisputed evidence               Appeal and Error
        may or may not be conclusive, and conclusive                   Province of jury or trial court
        evidence may or may not be undisputed.                      Jurors are the sole judges of the credibility of the
                                                                    witnesses and the weight to give their testimony.
        17 Cases that cite this headnote
                                                                    123 Cases that cite this headnote
 [27]   Appeal and Error
           Sufficiency of Evidence in Support                [32]   Appeal and Error
        Proper legal-sufficiency review prevents                       Conclusiveness in General
        reviewing courts from substituting their opinions           Evidence
        on credibility for those of the jurors, but proper              Credibility of witnesses in general
        review also prevents jurors from substituting
                                                                    Jurors may choose to believe one witness and
        their opinions for undisputed truth.
                                                                    disbelieve another, and reviewing courts cannot
        5 Cases that cite this headnote                             impose their own opinions to the contrary.

                                                                    72 Cases that cite this headnote
 [28]   Appeal and Error
           Extent of Review
                                                             [33]   Appeal and Error
        When evidence contrary to a verdict is                         Verdict
        conclusive, it cannot be disregarded when
                                                                    Reviewing courts must assume jurors decided all
        conducting legal-sufficiency review.
                                                                    of credibility questions in favor of the verdict if
        40 Cases that cite this headnote                            reasonable human beings could do so.

                                                                    13 Cases that cite this headnote
 [29]   Appeal and Error
           Sufficiency of Evidence in Support
                                                             [34]   Evidence
        The standard for legal sufficiency works in                     Uncontroverted evidence
        tandem with the standard of review—whenever
                                                                    Jurors may disregard even uncontradicted
        the standard of proof at trial is elevated, the
                                                                    and unimpeached testimony from disinterested
        standard of appellate review must likewise be
                                                                    witnesses.
        elevated.
                                                                    5 Cases that cite this headnote
        27 Cases that cite this headnote

                                                             [35]   Evidence
 [30]   Appeal and Error
                                                                        Testimony of Experts
           Verdict
                                                                    Uncontroverted expert testimony does not bind
        Cases involving what a party knew or why it
                                                                    jurors unless the subject matter is one for experts
        took a certain course of action are not amenable
                                                                    alone.
        to legal-sufficiency review under the “exclusive”




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

                                                                      jurors resolved all conflicts in accordance with
        6 Cases that cite this headnote                               that verdict.

                                                                      22 Cases that cite this headnote
 [36]   Trial
             Credibility of Witnesses
        Jury's decisions regarding credibility must be         [42]   Appeal and Error
        reasonable.                                                      Verdict
                                                                      In every circumstance in which reasonable jurors
        1 Cases that cite this headnote                               could resolve conflicting evidence either way,
                                                                      reviewing courts must presume they did so in
 [37]   Evidence                                                      favor of the prevailing party, and disregard the
            Uncontroverted evidence                                   conflicting evidence in their legal-sufficiency
                                                                      review.
        Jurors cannot ignore undisputed testimony that
        is clear, positive, direct, otherwise credible, free          33 Cases that cite this headnote
        from contradictions and inconsistencies, and
        could have been readily controverted.
                                                               [43]   Trial
        34 Cases that cite this headnote                                   Uncontroverted facts or evidence
                                                                      Trial
 [38]   Evidence                                                           Inferences from evidence
            Credibility of witnesses in general                       Even if evidence is undisputed, it is the province
        Jurors are not free to believe testimony that is              of the jurors to draw from it whatever inferences
        conclusively negated by undisputed facts.                     they wish, so long as more than one is possible
                                                                      and the jury must not simply guess.
        17 Cases that cite this headnote
                                                                      6 Cases that cite this headnote

 [39]   Appeal and Error
           Verdict                                             [44]   Appeal and Error
                                                                         Verdict
        Whenever reasonable jurors could decide what
        testimony to discard, a reviewing court must                  Courts reviewing all the evidence in a light
        assume they did so in favor of their verdict, and             favorable to the verdict must assume jurors
        disregard it in the course of legal-sufficiency               made all inferences in favor of their verdict if
        review.                                                       reasonable minds could, and disregard all other
                                                                      inferences in their legal-sufficiency review.
        9 Cases that cite this headnote
                                                                      73 Cases that cite this headnote

 [40]   Trial
             Conflicting evidence                              [45]   Appeal and Error
                                                                         Verdict
        It is the province of the jury to resolve conflicts
        in the evidence.                                              Both the “exclusive” standard for scope of no-
                                                                      evidence review, under which contrary evidence
        20 Cases that cite this headnote                              is disregarded, and the “inclusive” standard,
                                                                      under which reviewing court considers all of the
 [41]   Appeal and Error                                              evidence in the light favorable to verdict, are
           Verdict                                                    correct; the two standards reach the same result.

        Courts reviewing all the evidence in a light                  8 Cases that cite this headnote
        favorable to jury's verdict must assume that


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         5
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848


 [46]   Appeal and Error                                     [50]   Evidence
           Conclusiveness in General                                    Sufficiency to support verdict or finding
        A reviewing court cannot substitute its judgment            The final test for legal sufficiency must always
        for that of the trier-of-fact, so long as the               be whether the evidence at trial would enable
        evidence falls within the zone of reasonable                reasonable and fair-minded people to reach the
        disagreement.                                               verdict under review.

        141 Cases that cite this headnote                           638 Cases that cite this headnote


 [47]   Appeal and Error                                     [51]   Appeal and Error
           Verdict                                                     Verdict
        Appeal and Error                                            Whether a reviewing court begins by considering
           Inferences from facts proved                             all the evidence or only the evidence supporting
        Whether a reviewing court conducting legal-                 the verdict, legal-sufficiency review in the
        sufficiency review starts with all or only part             proper light must credit favorable evidence if
        of the record, the court must consider evidence             reasonable jurors could, and disregard contrary
        in the light most favorable to the verdict, and             evidence unless reasonable jurors could not.
        indulge every reasonable inference that would
                                                                    1750 Cases that cite this headnote
        support it; but if the evidence allows of only one
        inference, neither jurors nor the reviewing court
        may disregard it.                                    [52]   Eminent Domain
                                                                       Weight and sufficiency
        743 Cases that cite this headnote
                                                                    Evidence
                                                                        Nature of Subject
 [48]   Trial                                                       No evidence established that city's approval
             Sufficiency of evidence                                of revised drainage plans, which resulted in
        Legal sufficiency of the evidence is a question of          flooding of landowners' farm property, was
        law, not of fact.                                           an intentional taking, although landowners'
                                                                    expert testified that flooding was inevitable,
        132 Cases that cite this headnote                           city knew that development would increase
                                                                    runoff at the head of drainage system, and prior
 [49]   Appeal and Error                                            drainage plan had required drainage ditch across
           Sufficiency of Evidence in Support                       landowners' property; three sets of engineers
                                                                    had certified that revised plans met city's codes
        Judgment
                                                                    and regulations and thus would not increase
            Weight and sufficiency
                                                                    downstream flooding, and no evidence showed
        Judgment
                                                                    that city knew more than it was told by the
              Where directed verdict or binding
                                                                    engineers. Vernon's Ann.Texas Const. Art. 1, §
        instructions would have been proper
                                                                    17.
        Trial
             Nature and Grounds                                     3 Cases that cite this headnote
        The test for legal sufficiency should be the
        same for summary judgments, directed verdicts,       [53]   Eminent Domain
        judgments notwithstanding the verdict (JNOV),                  Appeal and error
        and appellate no-evidence review.                           In conducting legal-sufficiency review of finding
                                                                    that city's approval of revised drainage plans,
        65 Cases that cite this headnote
                                                                    which resulted in flooding of landowners' farm



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      6
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

        property, was an intentional taking, appellate           WAINWRIGHT, and Justice GREEN joined, and in which
        court could not disregard contrary evidence              Justice O'NEILL and Justice MEDINA joined as to Parts I
        explaining why city had approved the revised             through IV.
        drainage plans; critical question in the case
        was city's state of mind, i.e., whether city             Must an appellate court reviewing a verdict for legal
        knew or should have known that flooding was              sufficiency start by considering all the evidence or only part?
        substantially certain, and appellate court could         Over the years, we have stated both as the proper scope
        not evaluate what city knew by disregarding              of review. While some see the standards as opposing, we
        most of what it was told. Vernon's Ann.Texas             disagree; like a glass that is half-full or half-empty, both arrive
        Const. Art. 1, § 17.                                     at the same point regardless of where they start.

        4 Cases that cite this headnote                          But both standards must be properly applied. Rules and
                                                                 reason sometimes compel that evidence must be credited
                                                                 or discarded whether it supports a verdict or contradicts
 [54]   Evidence
                                                                 it. Under either scope of review, appellate courts must
            Testimony of Experts
                                                                 view the evidence in the light favorable to the verdict,
        When a case involves scientific or technical             crediting favorable evidence if reasonable jurors could, and
        issues requiring expert advice, jurors cannot            disregarding contrary evidence unless reasonable jurors could
        disregard a party's reliance on experts hired            not. As we find the evidence here meets neither standard, we
        for that very purpose without some evidence              reverse.
        supplying a reasonable basis for doing so.

        3 Cases that cite this headnote
                                                                              I. Factual and Procedural History

                                                                 The City of Keller is one of several fast-growing communities
Attorneys and Law Firms                                          on the outskirts of *808 Fort Worth. 1 As part of that growth,
                                                                 the City approved plans for two new subdivisions, Estates of
*807 Dabney D. Bassel, Larry Bracken, Law Snakard &              Oak Run and Rancho Serena, including plans for storm water
Gambill, P.C., Fort Worth, Douglas H. Conner III, L. Stanton     drainage.
Lowry, Boyle & Lowry, L.L.P., Irving, for petitioner.
                                                                 The Wilsons own property southeast of the new subdivisions,
James B. Barlow, Barlow & Garsek, Fort Worth, Robert L.
                                                                 with a tract owned by Z.T. Sebastian lying between. Before
Russell Bush, Bush & Morrison, Arlington, David R. Casey,
                                                                 development, surface water flowed generally north to south
Hurst, for respondents.
                                                                 from the land where the subdivisions were built, across the
Jay Doegey, Assistant City Attorney for the City of Corpus       Sebastian and Wilson properties, and into the Little Bear
Christi, Texas, Corpus Christi, Theodore P. Gorski Jr., Office   Creek Watershed.
of the City Attorney for City of Fort Worth, Mark G.
Daniel, Evans Gandy Daniel & Moore, Fritz Quast, Taylor          In 1991, the City adopted a Master Drainage Plan providing
Olson Adkins Sralla & Elam, LLP, Fort Worth, Monte               for drainage easements across both the Sebastian and Wilson
Akers, Texas Municipal League, Austin, Michael A. Bucek,         properties, and thence into Little Bear Creek. The City's codes
Senior Assistant City Attorney, Irving, Robert F. Brown,         require developers to comply with the Master Plan, to provide
Brown & Hofmeister, L.L.P., Richardson, Bruce S. Powers,         drainage for a 100–year rain event, and to avoid increasing
Assistant County Attorney, Michael A. Stafford, Harris           the volume or velocity of water discharged upon downhill
County Attorney, Houston, for Amicus Curiae.                     properties.

Opinion                                                          The developers of Oak Run and Rancho Serena submitted
                                                                 plans to the City indicating they would buy a drainage
Justice BRISTER delivered the opinion of the Court, in           easement and build a ditch forty-five feet wide and more
which Chief Justice JEFFERSON, Justice HECHT, Justice            than two hundred yards long across the Sebastian property,



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

and deed both to the City upon completion. 2 The plans also
included detention basins on the subdivision properties, but       Although this Court has used both the exclusive and
omitted any drainage easement or ditch across the Wilsons'         the inclusive standards interchangeably over the years,
property. The City's director of public works approved             commentators say the two are different. 10 Because this
the developers' plans, and the City accepted the works on           *810 important issue is dispositive here, we address it in
completion.                                                        some detail, and reserve for another day the City's arguments
                                                                   that a governmental entity cannot be liable for approving a
In accordance with the Master Plan, the City built a box           developer's plans, or accepting rather than constructing the
culvert south of the Wilsons' property. But as the developers'     works at issue.
drainage ditch ended at the Wilsons' north property line, there
was no link between the two. The Wilsons alleged and the
jury found this omission increased flooding on the Wilsons'
                                                                     II. Contrary Evidence That Cannot Be Disregarded
property, ruining eight acres of farmland the jury valued at
almost $300,000.                                                   The question presented here is not a new one. More than
                                                                   40 years ago, then Justice Calvert 11 addressed the standards
 [1] To recover damages for inverse condemnation, the
                                                                   for reviewing legal and factual sufficiency in the most-cited
Wilsons had to prove the City intentionally took or damaged
their property for public use, or was substantially certain that   law review article in Texas legal history. 12 Frustrated that
                                                                   despite this Court's efforts to explain those standards “a
would be the result. 3 They do not allege the City intentionally
                                                                   growing number of recent decisions indicate a continuing
flooded their land, but do allege it approved revised plans that
it knew were substantially certain to have that effect.            misunderstanding,” 13 the author summarized and attempted
                                                                   to clarify Texas law up to 1960. 14 The article's impact
The City contends no evidence supports the jury's finding of       remains substantial today, having been cited more than 100
an intentional taking. It presented evidence that engineers for    times by Texas courts in the last five years.
the developers, for the City, and for an outside firm the City
retained all certified that the revised drainage plan complied     According to the article:
with the City's codes and regulations—including the ban
against increasing downstream runoff. Thus, the City asserts                   “No evidence” points must, and
it had no reason to be substantially certain the opposite would                may only, be sustained when the
occur, until it did.                                                           record discloses one of the following
                                                                               situations: (a) a complete absence
                                                                               of evidence of a vital fact; (b) the
A divided court of appeals rejected this contention. 4 In its
                                                                               court is barred by rules of law or of
legal sufficiency review, the court refused to consider the
                                                                               evidence from giving weight to the
various engineers' certifications because “we are to consider
                                                                               only evidence offered to prove a vital
only the evidence and inferences that tend to support the
                                                                               fact; (c) the evidence offered to prove
finding and disregard all evidence and inferences to the
                                                                               a vital fact is no more than a mere
contrary.” 5 The City challenges *809 this omission as                         scintilla; (d) the evidence establishes
applying the wrong scope of review.                                            conclusively the opposite of the vital
                                                                               fact. 15
We have on many occasions stated the scope of review
precisely as the court of appeals says (the “exclusive”
                                                                   We have quoted a similar formulation on many occasions. 16
standard). 6 But we have also stated that a reviewing court
must consider “all of the evidence” in the light favorable to
                                                                   Notably, Justice Calvert then proceeded to put the question
the verdict (the “inclusive” standard). 7 Sometimes we have        before us in the proper context:
mentioned neither reviewing all evidence nor disregarding
some part of it. 8 Finally, we have sometimes expressly                        It is in deciding “no evidence”
                                                                               points in situation (c) that the courts
mentioned both. 9
                                                                               follow the further rule of viewing the


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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

            evidence in its most favorable light in              latter meaningless. 22 Even writings executed at different
            support of the finding of the vital fact,            times must be considered together if they pertain to the same
            considering only the evidence and the
                                                                 transaction. 23
            inferences which support the finding
            and rejecting the evidence and the
                                                                  [9] It is not just writings that reviewing courts must
            inferences which are contrary to the
                                                                 consider in context. For example, in reviewing intentional
            finding. 17                                          infliction of emotional distress claims for legal sufficiency,
                                                                 “we consider the context and the relationship between the
 [2] Clearly, the traditional rule in Texas has never been       parties.” 24 Acts that might constitute outrageous conduct
that appellate courts must reject contrary evidence in
                                                                 when dealing with a hearing-impaired consumer 25 may
every no-evidence review. Instead, the traditional scope of
review does not disregard contrary evidence if there is no       be legally insufficient between *812 business parties. 26
favorable evidence *811 (situation (a) above), or if contrary    In our no-evidence reviews of successful claims, we have
evidence renders supporting evidence incompetent (situation      invariably reviewed not just evidence showing the conduct
(b) above) or conclusively establishes the opposite (situation   was outrageous, but also evidence showing that, in context,
(d) above).                                                      it was not. 27

 [3] [4] As the following examples show, this has remained [10] More generally, evidence cannot be taken out of context
the rule since. We do not presume to categorize all             in a way that makes it seem to support a verdict when in fact
circumstances in which contrary evidence must be considered     it never did. 28 If a witness's statement “I did not do that”
in a legal sufficiency review. Evidence can be disregarded      is contrary to the jury's verdict, a reviewing court may need
                                           18
whenever reasonable jurors could do so, an inquiry that is      to disregard the whole statement, but cannot rewrite it by
necessarily fact-specific. But it is important that when courts disregarding the middle word alone.
use the exclusive standard and disregard contrary evidence,
they must recognize certain exceptions to it.                    [11] Thus, if evidence may be legally sufficient in one
                                                                context but insufficient in another, the context cannot be
                                                                disregarded even if that means rendering judgment contrary
                                                                to the jury's verdict. Either “evidence contrary to the verdict”
                   A. Contextual Evidence
                                                                must be defined to exclude material contextual evidence, or
In Justice Calvert's first situation—a complete absence of      it must be an exception to the general rule.
evidence of a vital fact—it is generally irrelevant whether a
reviewing court considers contrary evidence. 19 If supporting
evidence is absent, opposing evidence cannot change that                           B. Competency Evidence
result. But in a number of cases, the lack of supporting
evidence may not appear until all the evidence is reviewed in     [12]   [13] It has long been the rule in Texas that
context.                                                         incompetent evidence is legally insufficient to support a
                                                            judgment, even if admitted without objection. 29 Thus,
 [5] [6] For example, publications alleged to be defamatory evidence showing it to be incompetent cannot be disregarded,
must be viewed as a whole—including accompanying            even if the result is contrary to the verdict. If the rule were
statements, headlines, pictures, and the general tenor and  otherwise, incompetent evidence would always be legally
                                     20                     sufficient, because the evidence showing it to be incompetent
reputation of the source itself.         A court reviewing
legal sufficiency cannot disregard parts of a publication,  could never be considered.
considering only false statements to support a plaintiff's
                                                            Thus, for example, if an eyewitness's location renders a clear
verdict or only true ones to support a defense verdict. 21
                                                            view of an accident “physically impossible,” it is no evidence
                                                                                                                        30
 [7] [8] Similarly, reviewing courts must construe contracts of what occurred, even if the eyewitness thinks otherwise.
as a whole; we do not consider only the parts favoring one   Similarly, an employee's testimony that he was in the course
party and disregard the remainder, as that would render the  and scope of his employment is legally insufficient to support


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          9
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

a verdict against his employer if the evidence shows that legal
conclusion to be incompetent. 31                           Justice Calvert argued there was “no necessity for the
                                                           variation” because drawing an inference based on meager
 [14]    [15] This exception frequently applies to expert evidence was unreasonable whether or not the reviewing
testimony. When expert testimony is required, lay evidence court considered the opposing inferences. 44 Nevertheless, he
supporting liability is legally insufficient. 32 In *813   recognized that “[t]he opposing inference is present and it
such cases, a no-evidence review cannot disregard contrary         does no harm to note its presence.” 45
evidence showing the witness was unqualified to give an
opinion. 33 And if an expert's opinion is based on certain         In subsequent cases this Court has continued to note rather
assumptions about the facts, we cannot disregard evidence          than disregard the presence of equal but opposite inferences,
                                                                   often because lower courts have overlooked them. Thus,
showing those assumptions were unfounded. 34
                                                                   for example, one might infer from cart tracks in spilled
                                                                   macaroni salad that it had been on the floor a long
[16]    After we adopted gate-keeping standards for expert
                                                                   time, but one might also infer the opposite—that a sloppy
testimony, 35 evidence that failed to meet reliability standards
                                                                   shopper recently did both. 46 Similarly, when injury or death
was rendered not only inadmissible but incompetent as
                                                                   occurs without eyewitnesses and only meager circumstantial
well. 36 Thus, an appellate court conducting a no-evidence         evidence suggests what happened, we cannot disregard other
review cannot consider only an expert's bare opinion, but
                                                                   meager evidence of equally likely causes. 47
must also consider contrary evidence showing it has no
scientific basis. 37 Similarly, review of an expert's damage        [20] Thus, when the circumstantial evidence of a vital fact
estimates cannot disregard the expert's admission on cross-        is meager, a reviewing court must consider not just favorable
examination that none can be verified. 38                          but all the circumstantial evidence, and competing inferences
                                                                   as well.
 [17] Thus, evidence that might be “some evidence” when
considered in isolation is nevertheless rendered “no evidence”
when contrary evidence shows it to be incompetent. Again,
                                                                                     D. Conclusive Evidence
such evidence cannot be disregarded; it must be an exception
either to the exclusive standard of review or to the definition     [21]    [22] Next, Justice Calvert noted that Texas courts
of contrary evidence.                                              conducting a no-evidence review traditionally do not
                                                                   disregard contrary evidence that conclusively establishes the
                                                                   opposite of a vital fact. 48 He argued that this is to some
            C. Circumstantial Equal Evidence                       extent not a “true” no-evidence claim, as proponents may
                                                                   have to show not only that no evidence supports the verdict
As noted above, Justice Calvert believed the exclusive
                                                                   but that the opposite was proved as a matter of law. 49
standard applied only when a no-evidence challenge asserted
                                                                   There are several types of conclusive evidence. First, an
the evidence was no more than a scintilla. 39 But he went on       appellate court conducting a legal sufficiency review cannot
to note a “variation” that required contrary inferences to be      “disregard undisputed evidence that allows of only one
considered when the equal-inference rule applied. 40           logical inference.” 50 By definition, such evidence can be
                                                               viewed in only one light, and reasonable jurors can reach only
 [18] [19] In claims or defenses supported only by meager one conclusion from it. Jurors are not free to reach a verdict
circumstantial evidence, the evidence does not rise above
                                                               contrary to such evidence; 51 indeed, uncontroverted issues
a scintilla (and thus is legally insufficient) if jurors would
                                                                *815 need not be submitted to a jury at all. 52
have to guess whether a vital fact exists. 41 “When the
circumstances are equally consistent with either of two facts,
                                                               Reviewing legal sufficiency in such cases encompasses
neither fact may be inferred.” 42 In such cases, we must “view a general no-evidence review, because if some evidence
each piece of circumstantial *814 evidence, not in isolation,  supports the verdict then the contrary evidence was not
                                               43
but in light of all the known circumstances.”                  “undisputed.” But the review does not stop there; the evidence


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         10
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

must also have only one logical inference. Undisputed            child's mother testified she had conjugal relations with no one
evidence that reasonable jurors could disbelieve has two: (1)    else during the relevant time. 65 Nevertheless, we held there
it is true, or (2) it is not.                                    was no evidence to support the paternity verdict because of
                                                                 conclusive evidence to the contrary. 66
 [23] Most often, undisputed contrary evidence becomes
conclusive (and thus cannot be disregarded) when it concerns
                                                                 Similarly, in Texas & New Orleans Railroad Co. v. Compton,
physical facts that cannot be denied. Thus, no evidence
                                                                 we found no evidence that a railroad's negligence caused an
supports an impaired-access claim if it is undisputed that
                                                                 automobile to slam into the sixtieth car of a slow-moving
access remains along 90 percent of a tract's frontage. 53
                                                                 train. 67 Again, the evidence was hotly disputed—while
Evidence that a buyer believed a product had been repaired
                                                                 railroad witnesses testified that warning signs were in place
is conclusively negated by an accompanying letter to
                                                                 at the crossing, the car's driver and a passenger testified they
the contrary. 54 And an insured's liability has not been
                                                                 saw nothing, and would have been able to stop if they had. 68
determined by an “actual trial” if the insured did not appear,
                                                                 Nevertheless, we held there was no evidence to support the
present evidence, or challenge anything presented by his
                                                                 claim because, if the driver could not see the side of a train
opponent. 55                                                     before he hit it, he could not have seen a crossing sign
                                                                 either. 69
 [24] Undisputed contrary evidence may also become
conclusive when a party admits it is true. Thus, a claimant's
                                                                 Of course, there are few instances in which disputed evidence
admission that he was aware of a dangerous premises
                                                                 is conclusive, and many instances in which undisputed
condition is conclusive evidence he needed no warning about
                                                                 evidence is not. As our sister court has noted, testimony
it. 56 Similarly, an ex-employee's admission that she obtained   by a paid informant is legally sufficient to support a
other employment may prove conclusively that she did not         conviction, even if “[t]wenty nuns testify that the defendant
detrimentally rely on a defendant's promise to re-hire her. 57   was with them at the time, far from the scene of the
And jurors may not find that an indictment was based on          crime ... [and] [t]wenty more nuns testify that they saw the
a defendant's misleading report when the district attorney       informant commit the crime.” 70 But a more famous clerical
                                 58
admits it was his own mistake.                                   hypothetical by Judge Learned Hand shows the opposite
                                                                 limit:
 [25] It is impossible to define precisely when undisputed
evidence becomes conclusive. For example, an injured
employee's return to work may prove conclusively that an           If, however, it were proved by twenty bishops that either
                                                                   party, when he used the words [in a contract], intended
injury was not total, 59 or it may not. 60 Circumstances in
                                                                   something else than the usual meaning which the law
which a body is found may conclusively establish suicide, 61
                                                                    imposes upon them, he would still be held.... 71
                                             62
or allow *816 jurors to infer otherwise.        Evidence is      While jurors may generally believe either sinners or saints,
conclusive only if reasonable people could not differ in their   their discretion is limited when it is proved beyond question
conclusions, 63 a matter that depends on the facts of each       that an “eyewitness” was actually far away in prison or totally
case.                                                            blind on the day of the crime.

 [26] There is another category of conclusive evidence, in        [27]    [28]      Proper legal-sufficiency review prevents
which the evidence is disputed. Undisputed evidence and          reviewing courts from substituting *817 their opinions
conclusive evidence are not the same—undisputed evidence         on credibility for those of the jurors, but proper review
may or may not be conclusive, and conclusive evidence may        also prevents jurors from substituting their opinions for
or may not be undisputed.                                        undisputed truth. When evidence contrary to a verdict is
                                                                 conclusive, it cannot be disregarded.
Thus, for example, in Murdock v. Murdock, we found no
evidence to support a verdict establishing the defendant's
paternity when blood tests conclusively proved he was not
                                                                              E. Clear–and–Convincing Evidence
the child's father. 64 The evidence was directly disputed—the


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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

 [29] Since the time of Justice Calvert's article, new claims      standard will always be met if reviewing courts must
and burdens of proof have arisen that require additions            disregard any evidence that coverage was unclear. 82
to the four types of no-evidence review Justice Calvert            Subsequent cases show that reviewing courts are in fact
considered exhaustive. Beginning with the United States            looking at all the evidence to determine whether coverage was
Supreme Court's opinion in Jackson v. Virginia, appellate
                                                                   reasonably clear. 83
courts have recognized that, while “one slender bit of
evidence” may be all a reviewing court needs to affirm a
                                                                   This problem arises in other contexts as well. In
verdict based on the preponderance of the evidence, a higher
                                                                   discrimination cases, discharged employees will never have
burden of proof requires a higher standard of review. 72 As        to prove that the reason given for termination was a
we recently stated, the standard for legal sufficiency works in
                                                                   pretext if no-evidence review must disregard that reason. 84
tandem with the standard of review—“whenever the standard
                                                                   Government officials will never be entitled to immunity
of proof at trial is elevated, the standard of appellate review
                                                                   if we consider only evidence suggesting they should have
must likewise be elevated.” 73 If the rule were otherwise,
                                                                   acted differently. 85 And limitations will never run under the
legally sufficient evidence to support a preponderance-of-the-
                                                                   discovery rule if reviewing courts must disregard all evidence
evidence verdict would satisfy the higher burdens as well,
                                                                   that claimants knew of their claims. 86
thus rendering their differences meaningless. 74

                                                                   This is not to say a reviewing court may credit a losing party's
Accordingly, we have held that a legal sufficiency review
                                                                   explanations or excuses if jurors could disregard them. For
must consider all the evidence (not just that favoring
                                                                   example, while an insurer's reliance on an expert report may
the verdict) in reviewing cases of parental termination, 75
                                                                   foreclose bad faith recovery, 87 it will not do so if the insurer
defamation, 76 and punitive damages. 77 In such cases, again,
                                                                   had some reason to doubt the report. 88 But a reviewing court
evidence contrary to a verdict cannot be disregarded.
                                                                   cannot review whether jurors could reasonably disregard a
                                                                   losing party's explanations or excuses without considering
                                                                   what they were.
                F. Consciousness Evidence

 [30] Further, we have had to particularize legal-sufficiency
review in cases involving what a party knew or why it took a          III. Contrary Evidence That Must Be Disregarded
certain course, as they are not amenable to review under the
                                                                   As trials normally focus on issues that jurors could decide
exclusive standard.
                                                                   either way, reviewing *819 courts must disregard evidence
                                                                   contrary to the verdict far more often than they must consider
Long before gross negligence had to meet a clear-and-
                                                                   it. Just as no-evidence review that starts by disregarding
convincing burden, we recognized in Burk Royalty Co. v.
                                                                   contrary evidence often must end up considering considerably
Walls that no-evidence review of such findings had to include
                                                                   more, no-evidence review that begins by considering all the
“all of the surrounding facts, circumstances, and conditions,
                                                                   evidence must usually end up considering considerably less.
not just individual elements or facts.” 78 As then Chief
Justice Greenhill noted in concurring, speeding and running        Again, we do not presume to categorize all circumstances in
a red light may not be legally sufficient evidence of gross        which contrary evidence must be disregarded; a few examples
negligence if one's wife and daughter are bleeding to death        serve to demonstrate that even under the inclusive standard,
in the back seat. 79 Reviewing courts assessing evidence of        viewing all the evidence in a light favorable to the verdict
conscious indifference cannot disregard part of what a party       often requires that much of it be disregarded.
was conscious of. 80

For the same reasons, the exclusive standard of review has                            A. Credibility Evidence
proven problematic in insurance bad-faith cases. Liability
in *818 such cases requires proof that the insurer denied          [31]     [32]   Jurors are the sole judges of the credibility of
coverage after it became reasonably clear.         81
                                                        But that   the witnesses and the weight to give their testimony. 89 They



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             12
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

may choose to believe one witness and disbelieve another. 90       Jurors cannot ignore undisputed testimony that is clear,
Reviewing courts cannot impose their own opinions to the           positive, direct, otherwise credible, free from contradictions
                                                                   and inconsistencies, and could have been readily
contrary. 91
                                                                   controverted. 100 And as noted above, they are not free to
 [33] Most credibility questions are implicit rather than          believe testimony that is conclusively negated by undisputed
explicit in a jury's verdict. Thus, reviewing courts must          facts. But whenever reasonable jurors could decide what
assume jurors decided all of them in favor of the verdict if       testimony to discard, a reviewing court must assume they did
reasonable human beings could do so. Courts reviewing all          so in favor of their verdict, and disregard it in the course of
the evidence in a light favorable to the verdict thus assume       legal sufficiency review.
that jurors credited testimony favorable to the verdict and
disbelieved testimony contrary to it. 92
                                                                                     B. Conflicting Evidence
For example, viewing the evidence in the light favorable to
the verdict means that if both parties in a traffic accident       [40]     [41]   It is the province of the jury to resolve conflicts
testify they had the green light, an appellate court must          in the evidence. 101 Accordingly, courts reviewing all the
presume the prevailing party did and the losing party did          evidence in a light favorable to the verdict must assume
not. If the parties to an oral contract testify to conflicting     that jurors resolved all conflicts in accordance with that
terms, a reviewing court must presume the terms were those         verdict. 102
asserted by the winner. When all the evidence is viewed in
the light most favorable to the jury verdict, some of it must be   Again, this has always been the case even in those cases
completely discounted. Though not disregarded at the outset,       using the inclusive scope of review. For example, in such
the end result is the same.                                        cases we have sometimes detailed only the evidence that
                                                                   supported a jury's fraud finding. 103 We have affirmed a
This has always been our practice in cases using the inclusive
                                                                   bad-faith verdict for legal sufficiency despite “significant
scope of review. Thus, we have concluded that a bailee
sold cotton without the bailor's consent, despite the former's     evidence” that the insurer acted in *821 good faith. 104 We
                                                                   have found some evidence of lost profits, even though income
denials, because the jury verdict favored the latter. 93 And we
have affirmed a gross negligence verdict based on testimony        tax returns showed the contrary. 105 And we have affirmed
that the defendant's speed was 80 miles per hour, without          a jury's negligence finding despite a defendant's evidence

mentioning his own testimony to a speed half that. 94              asserting it could not have prevented the accident. 106


 [34]    [35]     Nor is it necessary to have testimony In none of these cases did we state that the scope of review
from both parties before jurors *820 may disbelieve          required us to disregard evidence contrary to the verdict;
either. Jurors may disregard even uncontradicted and         instead, we started by considering the entire record in each.
                                                             But in each case we either discounted or never mentioned
unimpeached testimony from disinterested witnesses. 95
                                                             conflicting evidence contrary to the verdict because viewing
Thus, an architect's uncontradicted testimony that he relied
                                                             the evidence in the light favorable to the verdict required us
on a 20–year warranty was not binding on jurors when the
                                                             to do so.
bid specifications he prepared included only much shorter
warranties. 96 Nor was an insured's uncontradicted testimony       Of course, it is not always clear whether evidence is
about lost furnishings binding on jurors when the fire scene       conflicting. Evidence is not conflicting just because the
contained several indications of arson but few of burnt            parties cannot agree to it. For example, evidence that a
furniture. 97 Even uncontroverted expert testimony does not        hospital controlled a doctor's rotation and patient assignments
bind jurors unless the subject matter is one for experts           raises no material conflict with evidence that a different
alone. 98                                                          entity controlled the details of medical treatment, as only
                                                               the latter is material in a malpractice case. 107 Similarly,
[36]        [37]      [38]    [39]     Of course, “[t]he jury'sevidence showing the terms of one loan does not conflict
decisions regarding credibility must be reasonable.” 99


                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         13
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

with undisputed evidence that the parties never reached an           people to differ in their conclusions, then jurors must be
                                              108
agreement regarding the terms of another.                            allowed to do so. 112 A reviewing court cannot substitute its
                                                                     judgment for that of the trier-of-fact, so long as the evidence
 [42] But in every circumstance in which reasonable jurors           falls within this zone of reasonable disagreement. 113
could resolve conflicting evidence either way, reviewing
courts must presume they did so in favor of the prevailing            [47] Similarly, there is no disagreement about how a
party, and disregard the conflicting evidence in their legal         reviewing court should view evidence in the process of that
sufficiency review.                                                  review. Whether a reviewing court starts with all or only part
                                                                     of the record, the court must consider evidence in the light
                                                                     most favorable to the verdict, and indulge every reasonable
                  C. Conflicting Inferences                          inference that would support it. 114 But if the evidence allows
                                                                     of only one inference, neither jurors nor the reviewing court
 [43] Even if evidence is undisputed, it is the province of
                                                                     may disregard it. 115
the jury to draw from it whatever inferences they wish, so
long as more than one is possible and the jury must not
                                                                     Given these premises, it is no coincidence that the two
simply guess. Thus, in product liability cases jurors may find
                                                                     standards should reach the same result—indeed they must.
evidence of a defect from subsequent modifications, even
                                                                     Any scope of appellate review smaller than what reasonable
if there were plenty of other reasons for the changes. 109           jurors could believe will reverse some verdicts that are
Even if a defendant admits approaching an intersection from          perfectly reasonable; any scope of review larger than what
the wrong way on a one-way street, jurors may infer the              reasonable jurors could believe will affirm some verdicts that
plaintiff failed to keep a proper lookout, as that is one possible   are not.
inference from the accident itself. 110 Similarly, jurors may
infer that relatives tore down posters of a missing child to          [48] Further, the two must coincide if this Court is to
assist the child's father, even though another inference was         perform its constitutional duties. Although factual sufficiency
that the signs simply embarrassed them. 111                          has been the sole domain of the intermediate appellate courts
                                                                     in Texas since 1891, our jurisdiction has always included
 [44] Accordingly, courts reviewing all the evidence in a            legal sufficiency, as that is a question of law, not of fact. 116
light favorable to the verdict must assume jurors made all           Construing either standard to require us to do less would be
inferences in favor of their verdict if reasonable minds could,      just as unconstitutional as construing either to allow us to do
and disregard all other inferences in their legal sufficiency        more.
review.
                                                                     This is not to say judges and lawyers will always agree
                                                                     whether evidence is legally *823 sufficient. As discussed
                                                                     more fully below, reasonable people may disagree about
               IV. Reconciling the Standards
                                                                     what reasonable jurors could or must believe. But once those
 [45] Having noted the dual lines of authority stating the           boundaries are settled, any standard of review must coincide
scope of no-evidence review, and the proper application and          with those boundaries—affirming jury verdicts based on
exceptions to each, we turn to the question of which one is          evidence within them and reversing jury verdicts based on
correct. For the reasons *822 discussed below, we believe            evidence that is not. Any standard that does otherwise is
the answer is both.                                                  improperly applied.



       A. Goals: The Standards Must Be The Same                        B. Other Motions: The Standards Must Be The Same

 [46] Whether a court begins by reviewing all the evidence            [49] Just as the scope of no-evidence review must coincide
or disregarding part in a legal-sufficiency review, there can        with its goals, the scope of review should not depend upon the
be no disagreement about where that review should end. If            motion in which it is asserted. Judgment without or against
the evidence at trial would enable reasonable and fair-minded        a jury verdict is proper at any course of the proceedings


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              14
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

only when the law does not allow reasonable jurors to              The standards for taking any case from the jury should be the
decide otherwise. Accordingly, the test for legal sufficiency      same, no matter what motion is used. If only one standard
should be the same for summary judgments, directed verdicts,       were proper, we would not expect both to appear in cases
judgments notwithstanding the verdict, and appellate no-           reviewing directed verdicts, judgments notwithstanding the
evidence review.                                                   verdict, and summary judgments. But both do.

Our statements of the standard for reviewing a directed
verdict present the same mixed bag found with general no-
                                                                       C. Federal Courts: The Standards Are The Same
evidence review. We have most often used the exclusive
standard, stating that courts reviewing directed verdicts must     The federal courts have had a similar split of authority
consider only evidence supporting the nonmovant's case             between the inclusive and exclusive standards for scope
and disregard all contrary evidence. 117 But we have also          of review. But no longer—the United States Supreme
stated that reviewing courts should use the inclusive standard,    Court recently concluded in Reeves v. Sanderson Plumbing
considering all the evidence in a light contrary to the directed   Products, Inc. that the two tests are the same. 126
verdict. 118 And we have sometimes stated both, requiring
reviewing courts to consider all the evidence in a light           Under Rule 50 of the federal rules of procedure, a court should
contrary to the directed verdict and then to disregard all         render judgment as a matter of law when “there is no legally
conflicting evidence that supports it. 119                         sufficient evidentiary basis for a reasonable jury to find for
                                                                   that party on that issue.” 127 In deciding whether all or only
By contrast, cases concerning judgments non obstante               part of the evidence should be considered, the Supreme Court
veredicto most often utilize the inclusive scope of review.        stated:
Beginning with the 1931 amendment authorizing trial judges
to grant them, 120 we have generally reviewed such orders
                                                                     The Courts of Appeals have articulated differing
by considering all the evidence in a light favorable to the
                                                                     formulations as to what evidence a court is to consider in
*824 verdict that was set aside. 121 In later years we               ruling on a Rule 50 motion. Some decisions have stated
have sometimes adopted the exclusive standard, 122 but our           that review is limited to that evidence favorable to the
opinions doing so usually cite to general no-evidence cases in       nonmoving party, while most have held that review extends
which no judgment n.o.v. was involved. 123                           to the entire record, drawing all reasonable inferences in
                                                                     favor of the nonmovant.
The one exception in which both standards do not expressly
                                                                        On closer examination, this conflict seems more
appear is in the scope of review for summary judgments.
                                                                        semantic than real. Those decisions holding that review
Here, there is only one standard—a reviewing court must
                                                                        under Rule 50 should be limited to evidence favorable to
examine the entire record in the light most favorable to
                                                                        the nonmovant appear to have their genesis in Wilkerson
the nonmovant, indulging every reasonable inference and
                                                                        v. McCarthy 128 . In Wilkerson, we stated that “in passing
resolving any doubts against the motion. 124 Reviewing
                                                                        upon whether there is sufficient evidence to submit an
courts do not disregard the evidence supporting the motion;
                                                                        issue to the jury we need look only to the evidence and
 *825 if they did, all summary judgments would be reversed.
                                                                        reasonable inferences which tend to support the case

In practice, however, a different scope of review applies               of” the nonmoving party. 129 But subsequent decisions
when a summary judgment motion is filed without supporting              have clarified that this passage was referring to the
                                                                        evidence to which the trial court should give credence,
evidence. 125 In such cases, evidence supporting the motion
                                                                        not the evidence that the court should review. In the
is effectively disregarded because there is none; under the
                                                                        analogous context of summary judgment under Rule 56,
rule, it is not allowed. Thus, although a reviewing court must
                                                                        we have stated that the court must review the record
consider all the summary judgment evidence on file, in some
                                                                        “taken as a whole.” And the standard for granting
cases that review will effectively be restricted to the evidence
                                                                        summary judgment “mirrors” the standard for judgment
contrary to the motion.
                                                                        as a matter of law, such that “the inquiry under each is the
                                                                        same.” It therefore follows that, in entertaining a motion


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            15
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

     for judgment as a *826 matter of law, the court should        contrary evidence when they must (as shown in Part II) if the
                                               130                 exclusive standard is used. No matter which standard is used,
      review all of the evidence in the record.
We address the Supreme Court's conclusion as to the                appellate courts must take care not to consider or disregard
most appropriate standard below; the relevant point here           too little or too much.
is its conclusion that differences between the inclusive and
exclusive standards are more semantic than real.                    *827 Conversely, several factors appear to favor application
                                                                   of the inclusive standard. First, when we have said “we
                                                                   must look only at that evidence which tends to support the
                                                                   judgment,” 134 we could not have been speaking literally;
    D. Objections: The Standards Are Not The Same
                                                                   no glasses filter evidence, and judges cannot abandon such
While we have used the two standards for the scope of review       judgments to law clerks or litigants. It is often hard to
interchangeably for many years in many different contexts,         say whether evidence does or does not support a verdict
several arguments suggest they are not the same.                   —the same facts may support different conclusions, 135 or
                                                                   may support one part of a verdict but not another. 136 Nor
First, the courts of appeals often use the two standards           can evidence supporting a verdict be identified by which
in illustrations of the difference between legal and factual       party offered it—parties depend on admissions and cross-
sufficiency, with the exclusive standard tied to the former and    examination during their opponent's case, and minimize
the inclusive standard to the latter:                              damaging evidence by presenting it during their own. As a
                                                                   practical matter, a court cannot begin to say what evidence
             When [reviewing] legal sufficiency,
                                                                   supports a verdict without reviewing it all.
             we consider only the evidence and
             inferences that tend to support the
                                                                   Second, an appellate court that begins by disregarding one
             award of damages and disregard
                                                                   party's evidence may strike many citizens as extending
             all evidence and inferences to the
                                                                   something less than justice for all. Concerns about open
             contrary.... When we review factual
                                                                   government and open courts suggest an appellate process
             sufficiency, we consider and weigh
                                                                   that considers all the evidence, though deferring to the jury's
             all of the evidence and will set aside
                                                                   verdict. While there is some dispute whether Lady Justice
             the verdict only if it is so against the
             great weight and preponderance of the                 should wear a blindfold, 137 the metaphor was surely never
             evidence that it is clearly wrong and                 intended to suggest that justice disregards the facts.
             unjust. 131
                                                                   In sum, the exclusive standard is helpful in recognizing
                                                                   the distinctive roles of judge and jury, intermediate and
But there have always been exceptions to this distinction. 132     supreme court. By contrast, the inclusive standard is helpful
As demonstrated in Parts II and III above, it is generally         in recognizing what courts actually do, and must be seen to
true that the result of legal-sufficiency review is to disregard   do. Both are important; we should avoid choosing between
contrary evidence, but there are exceptions when a reviewing       them if we can.
court cannot. It is not surprising that in drawing the general
distinction between legal and factual sufficiency, courts
have not complicated that distinction by listing the several
                                                                         E. Conclusion: The Standards Are The Same
exceptions in which the scope of review—though not the
standard of review—may overlap.                                    As both the inclusive and exclusive standards for the scope
                                                                   of legal-sufficiency review have a long history in Texas, as
Second, it has been argued that the exclusive standard “is         both have been used in other contexts to review matter-of-law
an important prophylactic” against invasion of the jury's          motions, as the federal courts have decided the differences
province, as appellate judges are less likely to consider          between the two are more semantic than real, and as both—
contrary evidence when they should not if the exclusive            properly applied—must arrive at the same result, we see no
standard is used. 133 But if that is true, the opposite should     compelling reason to choose among them.
also be the case—appellate courts are less likely to consider



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

 [50]    [51] The key qualifier, of course, is “properly                      when the issue should be left to the
applied.” The final test for legal sufficiency must always                    jury. But since questions of negligence
be whether the evidence at trial would enable reasonable                      are questions of degree, often very
and fair-minded people to reach the verdict under review.                     nice differences of degree, judges of
Whether a reviewing court begins by considering all the                       competence and conscience have in
evidence or only the evidence supporting the verdict, legal-                  the past, and will in the future, disagree
sufficiency review in the proper light must credit favorable                  whether proof in a case is sufficient
evidence if reasonable jurors could, and disregard contrary                   to demand submission to the jury. The
evidence unless reasonable jurors could not.                                  fact that [one] thinks there was enough
                                                                              to leave the case to the jury does not
While judges and lawyers often disagree about legal                           indicate that the other [is] unmindful
sufficiency in particular cases, *828 the disagreements are                   of the jury's function. The easy but
almost always about what evidence jurors can or must credit                   timid way out for a trial judge is to
and what inferences they can or must make. It is inevitable                   leave all cases tried to a jury for jury
in human affairs that reasonable people sometimes disagree;                   determination, but in so doing he fails
thus, it is also inevitable that they will sometimes disagree                 in his duty to take a case from the jury
about what reasonable people can disagree about. This is not                  when the evidence would not warrant
a new problem; Justice Calvert noted it almost fifty years ago:               a verdict by it. A timid judge, like a
                                                                              biased judge, is intrinsically a lawless
            The rule as generally stated is that if
                                                                              judge. 140
            reasonable minds cannot differ from
            the conclusion that the evidence lacks
            probative force it will be held to be
            the legal equivalent of no evidence.                                  V. Application to the Facts
            The application of the rule can lead
            to strange results. It is theoretically               It remains to apply the scope of review to the facts presented.
            possible, and sometimes not far from
            actual fact, that five members of the                  [52] A majority of the court of appeals affirmed the verdict
            Supreme Court will conclude that the                  for the Wilsons, finding legally sufficient evidence that the
            evidence supporting a finding of a                    City knew increased flooding on the Wilsons' property was
            vital fact has no probative force, and                substantially certain to occur. 141 The majority pointed to
            in reaching the conclusion through                    the following proof. First, the Wilsons' expert testified that
            application of the rule will thus hold,
                                                                  the revised plan was certain to *829 create flooding. 142
            in effect, that the trial judge who
                                                                  Second, as the City admittedly knew that development would
            overruled a motion for instructed
                                                                  increase runoff and the Sebastian ditch would channel it
            verdict, the twelve jurors who found
                                                                  toward the Wilsons, so it knew “with absolute certainty”
            the existence of the vital fact, the three
                                                                  that flooding would be the result. 143 Third, the City “did
            justices of the Court of Civil Appeals
                                                                  not explain” why the Master Plan required a drainage ditch
            who overruled a “no evidence” point
                                                                  across the Wilsons' property but the revised plan did not,
            of error and four dissenting justices of
                                                                  thus allowing jurors to infer that the City knew this omission
            the Supreme Court are not men 138 of
                                                                  would cause flooding. 144
            “reasonable minds.” 139
                                                                   [53] Of course, the City did explain why it approved the new
It is not hubris that occasionally requires an appellate court    plan—because three sets of engineers said the omitted ditch
to find a jury verdict has no reasonable evidentiary basis. As    was unnecessary—but the court felt compelled by the scope
Justice Frankfurter stated long ago:                              of review to disregard that evidence.

            Only an incompetent or a wilful judge
                                                                  For several of the reasons stated earlier, we believe the court
            would take a case from the jury
                                                                  of appeals did not properly apply the scope of review. The


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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

critical question in this case was the City's state of mind—       Our concurring colleagues believe reasonable jurors could
the Wilsons had to prove the City knew (not should have            nevertheless disregard what all the engineers certified
known) that flooding was substantially certain. A reviewing        because the City had a financial incentive to believe them
court cannot evaluate what the City knew by disregarding           rather than pay the Wilsons. Of course, defendants have a
most of what it was told.                                          financial incentive to avoid paying damages in every case;
                                                                   if that incentive alone is some evidence of liability, then
 [54] Moreover, when a case involves scientific or technical       plaintiffs create enough evidence to go to the jury every time
issues requiring expert advice (as this one does), jurors cannot   they file suit.
disregard a party's reliance on experts hired for that very
purpose without some evidence supplying a reasonable basis         But more important, this ignores what the Wilsons had to
             145                                                   prove—not that the City might have disbelieved the engineers'
for doing so.     Here, it was uncontroverted that three sets of
engineers certified that the revised plans met the City's codes    reports, but that it did. This requires evidence of “objective
and regulations—and thus would not increase downstream             indicia of intent” showing the City knew identifiable harm
flooding. The same firm that drew up the original Master Plan      was occurring or substantially certain to result. 147 Jurors'
certified the revised one; unless the City had some reason to      doubts about the engineers' reports or the City's motives could
know the first certification was true and the second one was       not supply them with objective indicia that the City knew
false (of which there was no evidence), there was only one         flooding would occur. Constitutional concerns about the roles
logical inference jurors could draw.                               of judge and jury do not allow either to make such evidence
                                                                   up.
None of the evidence cited by the court of appeals showed
the City knew more than it was told by the engineers. The          We agree with the court of appeals that the Wilsons presented
Wilsons' expert testified that flooding was (in his opinion)       some evidence that the City damaged their property, and that
inevitable, but not that the City knew it was inevitable. The      in drawing up and approving drainage plans it was acting
Wilsons' expert gave no opinion on the latter point.               for a public purpose. The missing piece in the evidence
                                                                   here is proof that the City knew the plans it approved were
Second, ending a ditch at a neighbor's property line may           substantially certain to increase flooding on the Wilsons'
be evidence that a defendant was substantially certain of          properties. While the City certainly knew that fact after the
the result in some cases, but not in the context of this           flooding started, the Wilsons never pleaded or submitted
one. City witnesses admitted knowing development would             to the jury any takings theory other than the City's initial
increase runoff at the head of this drainage system, but not       approval.
flooding at its foot. Calculating the effect of detention ponds
and absorption in a grassy drainage ditch forty-five feet          Crediting all favorable evidence that reasonable jurors could
wide and over two hundred yards long required hydrological         believe and disregarding all contrary evidence except that
formulas, computer models, and mathematical calculations.          which they could not ignore, we hold there was no evidence
The omission of the ditch across the Wilsons' property             the City's approval of the revised drainage plan was an
obviously raised concerns that the City investigated, but was      intentional taking.
no evidence that the City knew the advice it received in
response was wrong.                                                Accordingly, we reverse the court of appeals' judgment
                                                                   against the City under article I, section 17 of the Texas
The Wilsons also point to a letter Sebastian's attorney wrote      Constitution. Because the court of appeals declined to address
the City demanding indemnity in case the new ditch flooded         the jury's alternate verdict for the Wilsons on a claim under
the Wilsons. But attorneys must protect a client from potential    the Texas Water Code, we remand the case to that court to
liability whether it is *830 real or imagined—and justly so.       determine that issue.
In the letter, the attorney never purports to be an expert in
hydrology, or cite the opinions of anyone who was. This letter
may have required the City to investigate, but again is no
                                                                   Justice O'NEILL filed a concurring opinion in which Justice
evidence it knew the advice it received was wrong. 146             MEDINA joined.

                                                                   Justice JOHNSON did not participate in the decision.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           18
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848


Justice O'NEILL, joined by Justice MEDINA, concurring.
The Court does an excellent job of explaining the appropriate                                     I
scope of no-evidence review: the reviewing court “must
                                                                    Questions of intent are generally proved only by
view the evidence in the light favorable to the verdict,
                                                                    circumstantial evidence; as the court of appeals in this
crediting favorable evidence if reasonable jurors could, and
                                                                    case aptly noted, “defendants will rarely admit knowing
disregarding contrary evidence unless reasonable jurors could
                                                                    to a substantial certainty that given results would follow
not.” 168 S.W.3d at 807. I agree with this standard and join
                                                                    from their actions,” and therefore the jury must be “free to
Parts I through IV of the Court's opinion. But I cannot join
                                                                    discredit defendants' protestations that no harm was intended
Part V, because the Court misapplies the standard that it so
                                                                    and to draw inferences necessary to establish intent.” 86
carefully *831 articulates by crediting evidence the jury
                                                                    S.W.3d 693, 704. I agree with the Court that the jury's
could reasonably disregard.
                                                                    ability to disbelieve the City's protestations is not itself
                                                                    “evidence of liability.” 168 S.W.3d at 830. Instead, the jury's
The City of Keller's Master Drainage Plan required it
                                                                    ability to weigh the witnesses' credibility means that the
in part to condemn a 2.8–acre drainage easement on the
                                                                    City's testimony did not conclusively establish its lack of
Wilson property for construction of an earthen channel
                                                                    liability. Because liability is not conclusively negated, we
forty-five feet wide and five feet deep that would funnel
                                                                    must examine the record to see if there is legally sufficient
water from the adjoining Sebastian property over the
                                                                    evidence from which the jury could infer that the City knew
Wilson property into the Little Bear Creek Watershed. The
                                                                    flooding was substantially certain to occur. I would hold that
City chose not to proceed with this portion of the plan,
                                                                    the evidence of intent that was presented in this case allowed
though, claiming reliance on engineers' assurances that the
                                                                    the jury to draw such an inference.
developers' installation of retention ponds on neighboring
land could prevent flooding. The drainage channel that was
                                                                    At trial, the Wilsons presented evidence that the City
actually built ended at the edge of the Sebastian property and
                                                                    had independent sources of knowledge that flooding was
funneled water directly onto the Wilsons' land, destroying
                                                                    substantially certain to occur. First, they demonstrated that
eight acres of farmland worth almost $300,000. The Court
                                                                    the developers' plan itself was flawed. Rather than incorporate
holds that the jury was required to believe the City's testimony
                                                                    a drainage ditch running across the Wilson property, as the
that it relied on the engineers' assurances and thus did not
                                                                    City's Master Plan required, the developers' plan ended the
know flooding was substantially certain to occur, stating
                                                                    drainage ditch abruptly at the edge of the Wilson property.
that when a case requires expert testimony “jurors cannot
                                                                    The Wilsons' expert testified that the plan's implementation
disregard a party's reliance on experts hired for that very
                                                                    would necessarily “increase the volume and flow of water
purpose without some evidence supplying a reasonable basis
                                                                    across the Wilson property from the rate of fifty-five cubic
for doing so.” 168 S.W.3d at 829. Even if this were an
                                                                    feet per second to ninety-three cubic feet per second.” *832
appropriate review standard—which it hasn't been until today
                                                                    86 S.W.3d at 703. Second, the City was aware that water
—I believe the jury had a reasonable basis upon which
                                                                    flowed across the Wilson property before the development
to disregard the City's professed reliance; the City had a
                                                                    commenced, and, as the court of appeals pointed out, the
financial incentive to disclaim knowledge of the flooding,
                                                                    City's Director of Public Works admitted that the City knew
and the Wilsons presented some evidence that the City had
                                                                    the development would increase the water's flow and velocity;
independent knowledge flooding was substantially certain to
                                                                    specifically, he testified that “the City knew the upstream
occur. In my view, the jury was the proper body to weigh the
                                                                    water would be absorbed less and would flow faster due to
witnesses' credibility and resolve these disputed fact issues. I
                                                                    the removal of trees and vegetation from the developments
nevertheless agree that the City cannot be liable for a taking in
                                                                    and from the forty-five-foot-wide earthen channel” that ended
this case because I believe that a city's mere act of approving a
                                                                    at the Wilson property's edge. Id. at 705. Finally, there
private development plan cannot constitute a taking for public
                                                                    was evidence that the City received a letter warning that
use. Accordingly, I concur in the Court's judgment but not its
                                                                    the developers' plan would subject the Wilson property to
reasoning.
                                                                    flooding.

                                                                    While I believe there is some evidence that the City knew
                                                                    flooding was substantially certain to occur, there is also



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

some evidence that it did not. City officials testified that       In Castañeda, a bad-faith insurance case, there was no
they relied on the representations of engineers who assured        question that the insurer had relied on an expert's assurances
them retention ponds could substitute for a drainage easement      and thus no dispute about whether the *833 jury could
and the Wilson property would not be damaged. If the jury          have disregarded that evidence. Castañeda, 988 S.W.2d
accepted this evidence as true, I agree that the intent element    at 194–95. In that case, we performed a traditional legal
would be negated, which would preclude the City's takings          sufficiency analysis and concluded there was no evidence that
liability. But I do not agree that the jury was bound to           the defendant acted in bad faith. Id. at 194. We did state that
accept the City's testimony as true. The Court itself notes        reliance on an expert's opinion will not preclude a finding
that jurors “may choose to believe one witness and disbelieve      of bad faith if the expert's opinion was “unreliable and the
another,” and that “[c]ourts reviewing all the evidence in a       insurer knew or should have known that to be the case.” Id.
light favorable to the verdict thus assume that jurors credited    However, we did not hold that the jury must credit a party's
testimony favorable to the verdict and disbelieved testimony       testimony that it relied on an expert.
contrary to it.” 168 S.W.3d at 819. This statement mirrors our
prior jurisprudence, which has long provided that a jury “has      We reiterated this point in Nicolau, another bad-faith
several alternatives available when presented with conflicting     insurance case. There, the Court noted “we have never held
evidence” because it “may believe one witness and disbelieve       that the mere fact that an insurer relies upon an expert's report
others,” “may resolve inconsistencies in the testimony of any      to deny a claim automatically forecloses bad faith recovery as
witness,” and “may accept lay testimony over that of experts.”     a matter of law,” and again concluded that purported “reliance
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)             upon an expert's report, standing alone, will not necessarily
(citations omitted).                                               shield” the defendant from liability. Nicolau, 951 S.W.2d at
                                                                   448. The Court conceded that “[w]ere we the trier of fact in
As the Court itself states, jurors are required to credit          this case, we may well have concluded that [the insurer] did
undisputed testimony only when it is “clear, positive,             not act in bad faith,” but concluded that the “determination is
direct, otherwise credible, free from contradictions and           not ours to make” because “the Constitution allocates that task
inconsistencies, and could have been readily controverted.”        to the jury and prohibits us from reweighing the evidence.”
168 S.W.3d at 820. The City's testimony does not meet this         Id. at 450 (citing TEX. CONST. art. I, § 15, art. V, §§ 6, 10).
standard. The City Manager did testify that the City “would
not have approved the developments unless [it was] assured         The same is true in this case. The jury was not required to
that the developments did not increase the velocity of water       believe that the City did not know flooding was substantially
or the flow of water” onto the neighboring property. 86            certain to occur because it relied on assurances to the
S.W.3d at 706. But the Wilsons disputed whether the City's         contrary; as a reviewing Court, we should “assume that jurors
protestations were credible, pointing out that the City had a      credited testimony favorable to the verdict and disbelieved
powerful incentive to profess a lack of knowledge through          testimony contrary to it.” 168 S.W.3d at 819. Such credibility
reliance on the engineers' assurances because it would then        determinations are uniquely suited and constitutionally
avoid the considerable expense of compensating the Wilsons         committed to the fact finder. See TEX. CONST. art. I, § 15,
for the property that would otherwise have been condemned          art. V, § 6; see also Nicolau, 951 S.W.2d at 450.
under the Master Drainage Plan. See id. at 705.

Moreover, the Court's conclusion that juries cannot disregard
                                                                                                  II
a party's reliance on expert opinions is not consistent with our
jurisprudence. The Court cites two cases for this proposition,     Although I disagree with the Court's conclusion that the jury
but neither supports the Court's analysis; instead, both cases     was required to credit the City's testimony, I agree with
support the conclusion that the jury, as the finder of fact,       its judgment in the City's favor because, in my view, the
should appropriately resolve factual disputes regarding a          City's mere approval of the private development plans did not
party's reliance on hired experts. Provident Am. Ins. Co. v.       result in a taking for public use, as the constitutional standard
Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); State Farm           requires for a compensable taking. TEX. CONST. art. I, §
Lloyds v. Nicolau, 951 S.W.2d 444, 448–50 (Tex.1997).              17. The City did not appropriate or even regulate the use
                                                                   of the Wilsons' land, nor did it design the drainage plan for
                                                                   the proposed subdivisions. Instead, the City merely approved



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

subdivision plans designed by private developers, and that           the taxpayers, would become the guarantors or insurers for the
design included inadequate drainage capabilities. The City           actions of private developers whose development damages
argues, and I agree, that its mere approval of private plans did     neighboring properties.” Phillips, 968 P.2d at 878. The court
not transfer responsibility for the content of those plans from      in Pepper similarly examined an inverse condemnation claim
the developers to the City. Municipalities review subdivision        based upon a county's approval of private developments with
plats “to ensure that subdivisions are safely constructed and        defective drainage plans; it, too, concluded that the county's
to promote the orderly development of the community.” City           approval did not cause the resultant flooding and did not
of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex.1985);              result in an unconstitutional taking. Pepper, 871 P.2d at 606.
see TEX. LOC. GOV'T CODE § 212.002. Such a review                    The court noted that the flooding was “not the result of the
is intended to protect the city's residents; it is not intended      County appropriating or regulating their use of the land,” and
to transfer responsibility for a flawed subdivision design           held that “[t]he fact that a county regulates development and
from the developers to the municipality. See, e.g., City of          requires compliance with road and drainage restrictions does
Round Rock, 687 S.W.2d at 302; see also Cootey v. Sun                not transform a private development into a public project.”
Inv., Inc., 68 Haw. 480, 718 P.2d 1086, 1091 (1986) (holding         Id. The court concluded that because “land use regulation
that “[t]he permit process by which the County approves              of [the plaintiffs'] property did not cause the damages, no
or disapproves the development of a proposed subdivision             inverse condemnation was involved.” Id. I am persuaded by
reflects an effort by government to require the developer            the reasoning of the courts in Phillips and Pepper, and would
to meet his responsibilities under the subdivision rules,            similarly conclude that the City's plat approval in this case did
regulations, and laws,” and that “the primary responsibility of      not amount to an unconstitutional taking as a matter of law.
providing an adequate and safe development rests with ... the
developer, and not with the County”).                                The court of appeals in this case advanced an alternative
                                                                     reason for affirming the trial court's judgment, suggesting that
Because the primary responsibility for a development's design        even if the City could not be liable for merely approving
rests with the developer, *834 and because the plat-                 a subdivision plat, it could nevertheless be held liable for
approval process does not transfer such responsibility to the        failing to condemn a drainage easement across the Wilson
municipality, mere plat approval cannot be a basis upon              property. 86 S.W.3d at 707. The court of appeals stated
which to predicate takings liability. We have held that, to          that “the City chose not to condemn any of the Wilson
be liable for a taking, a governmental entity must “perform          property,” but instead “allow[ed] the water flowing from
certain acts in the exercise of its lawful authority ... which       the Sebastian easement to discharge, uncontrolled, across the
resulted in the taking or damaging of plaintiffs' property,          Wilson property.” Id. As noted above, however, it was the
and which acts were the proximate cause of the taking or             developers' plan—not the City's actions—that allowed the
damaging of such property.” State v. Hale, 136 Tex. 29,              water to flood the Wilson property. Because the City's action
146 S.W.2d 731, 736 (1941) (emphasis added). In this case,           did not cause the flooding, I disagree that the City's failure
flooding resulted from the developers' defective drainage            to condemn an easement is relevant to takings liability. If
design, not from the City's approval of the plat; thus, the City's   the City were responsible for the flooding but chose not
approval was not the proximate cause of the damage to the            to condemn the property, it might be subject to inverse-
Wilson property.                                                     condemnation liability. See Tarrant County Reg'l Water Dist.
                                                                     v. Gragg, 151 S.W.3d 546, 554 (Tex.2004) (“When the
Other courts, faced with similar facts, have also concluded          government takes private property without first paying for it,
that a governmental entity cannot be liable for a taking             the owner may recover damages for inverse condemnation.”).
when its only action is to approve a private development             However, if a governmental entity's actions are not the *835
plan. See Phillips v. King County, 136 Wash.2d 946, 968              “proximate cause of the taking or damaging” of the property,
P.2d 871, 879 (1998); see also Pepper v. J.J. Welcome                then the entity cannot be liable for a taking. Hale, 146 S.W.2d
Constr. Co., 73 Wash.App. 523, 871 P.2d 601, 606 (1994).             at 736. Accordingly, the entity need not condemn property
In Phillips, the Washington Supreme Court observed that              merely because a private entity is causing damage. This rule
there is no public aspect to a private development and               does not leave owners of flooded property without a remedy;
concluded that “[i]f the county or city were liable for the          when a private development floods neighboring land, the
negligence of a private developer, based on approval under           owner of the damaged property will ordinarily have recourse
existing regulations, then the municipalities, and ultimately        against the private parties causing the damage. See TEX.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              21
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

WATER CODE § 11.086(a), (b) (providing that “[n]o person
may divert or impound the natural flow of surface waters in                                              III
this state ... in a manner that damages the property of another
by the overflow of the water diverted or impounded” and that            Because I believe the Court fails to give due regard to the
“[a] person whose property is injured by an overflow of water           jury's right to make credibility determinations, I cannot join
caused by an unlawful diversion or impounding has remedies              Part V of the Court's opinion. But because I conclude that
at law and in equity and may recover damages occasioned                 the City's mere act of approving a private development plan
by the overflow”). Because the developers' design of the plat           did not cause the Wilson property to be “taken, damaged or
—not the City's approval—caused the flooding damage in                  destroyed for or applied to public use,” TEX. CONST. art. I,
this case, I would hold that the City cannot be held liable for         § 17, I agree that the City cannot be held liable for a taking in
an unconstitutional taking under Article I, Section 17 of the           this case. Accordingly, I concur in the Court's judgment.
Texas Constitution.

                                                                        Parallel Citations

                                                                        48 Tex. Sup. Ct. J. 848


Footnotes
1      The City of Fort Worth asserts in an amicus brief that in 2001 alone it approved 325 subdivision plats creating 5,857 residential lots
       within its extraterritorial jurisdiction, which of course excludes surrounding communities.
2      Evidence at trial and briefs by amici indicate that cities normally acquire title to these easements to ensure they are properly mowed
       and maintained after the developers' departure.
3      TEX. CONST. art. I, § 17; City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 (Tex.2004).
4      86 S.W.3d 693, 715, 717.
5      Id. at 700.
6      See, e.g., Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (per curiam); Bradford v. Vento, 48 S.W.3d 749, 754
       (Tex.2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000); Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
       (Tex.1998); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Burroughs Wellcome Co. v. Crye, 907 S.W.2d
       497, 499 (Tex.1995); Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Holt Atherton Indus., Inc. v. Heine, 835
       S.W.2d 80, 84 (Tex.1992); Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456,
       458 (Tex.1992); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990); Burkard v. ASCO Co., 779 S.W.2d 805, 806 (Tex.1989)
       (per curiam); Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988); City of Gladewater v. Pike, 727 S.W.2d 514, 518
       (Tex.1987); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Glover v. Tex.
       Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Garza v. Alviar,
       395 S.W.2d 821, 823 (Tex.1965); Wininger v. Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912).
7      See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Associated Indem. Corp. v. CAT Contracting, Inc.,
       964 S.W.2d 276, 285–86 (Tex.1998); State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex.1998); Formosa Plastics
       Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
       711 (Tex.1997); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983); Burk Royalty v. Walls, 616 S.W.2d 911, 922
       (Tex.1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 97 (1955); Hall
       v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 498 (1952).
8      Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d
       681, 684 (Tex.2004); Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); La.-Pac. Corp. v. Andrade, 19 S.W.3d 245,
       247 (Tex.1999); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998); Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513
       (Tex.1998).
9      See, e.g., Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Szczepanik v. First S. Trust Co.,
       883 S.W.2d 648, 649 (Tex.1994) (per curiam); compare Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957)
       (“We may consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must
       disregard all evidence which would lead to a contrary result.”) (emphasis added), with Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351,
       298 S.W.2d 79, 81 (1956) (“[T]he duty of this Court [is] to examine and consider all of the evidence bearing on the controlling issues,
       and having done so to decide whether there is evidence of probative value to support the answers made by the jury to the issues.”)



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

       (quotation omitted) (emphasis added), and Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914) (“[W]e must reject all
       evidence favorable to the plaintiffs in error, and consider only the facts and circumstances which tend to sustain the verdict.... In
       considering this question, we must take into account all of the facts and circumstances attending the transaction.”).
10     See, e.g., W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 159–62 (2002); William V. Dorsaneo, III, Judges,
       Juries, & Reviewing Courts, 53 SMU L.R. 1497, 1498, 1507–11 (2000); Phil Hardberger, Juries Under Siege, 30 ST. MARY'S L.J.
       1, 40–41 (1998). But see William Powers, Jr., Judge & Jury in the Texas Supreme Court, 75 TEX. L.REV. 1699, 1699–1700, 1704–
       19 (1997) (concluding the Court is not changing the no-evidence standard of review but is moving away from broad definitions of
       duty and toward particularized definitions of duty).
11     Robert W. Calvert was an associate justice of this Court from 1950 to 1960, and Chief Justice from 1961 to 1972.
12     Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361 (1960).
13     Id. at 361.
14     “Most of what has been said here is repetitious of what has been said before in the cited cases and articles. The purpose of the writer
       here has been to try to bring former writings on the subject into compact form and under somewhat closer analysis.” Id. at 371.
15     Id. at 362–63.
16     See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003)
       (per curiam); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998); Mar. Overseas Corp. v. Ellis, 971 S.W.2d
       402, 409 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Anderson v. City of Seven Points, 806
       S.W.2d 791, 795 n. 3 (Tex.1991); Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991); Juliette Fowler Homes, Inc. v. Welch Assocs.,
       Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990).
17     Calvert, supra note 12, at 364.
18     See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002); Uniroyal, 977 S.W.2d at 340; Triton Oil & Gas Corp. v. Marine Contractors &
       Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).
19     Calvert, supra note 12, at 364 (“If there is an absolute absence of evidence of a vital fact ... an appellate court has no occasion to
       concern itself with an abstract rule such as how minds of reasonable men might view the situation.”).
20     New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158–59 (Tex.2004); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000);
       Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 877–78 (1912).
21     Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.2002) (considering remarks in context of series of talk-show programs); Turner, 38
       S.W.3d at 115 (holding defamation includes story in which details are right but gist is wrong).
22     Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004).
23     DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999).
24     Tiller v. McLure, 121 S.W.3d 709, 714 (Tex.2003) (per curiam); see also Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604,
       610–11 (Tex.2002); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex.1999).
25     See George Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 852–53 (Tex.App.-Fort Worth 1994) (holding that efforts to pressure
       deaf-mute consumer to buy car were legally sufficient evidence of intentional infliction), rev'd on other grounds, 900 S.W.2d 337,
       338 (Tex.1995).
26     See Tiller, 121 S.W.3d at 714 (holding efforts to pressure widow of contracting party to complete project were legally insufficient
       evidence of intentional infliction).
27     See, e.g., id. at 713–14 (discussing contrary evidence showing defendant's reasonable concerns about timeliness of plaintiff's work);
       Sears, 84 S.W.3d at 612 (discussing contrary evidence that defendant believed claimant was involved in suspicious dealings).
28     Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684, 685 (Tex.2004) (holding no evidence supported defect as comments
       from deposition “were read out of context”).
29     Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 n. 1 (Tex.2004) (citing Henry v. Phillips, 105 Tex. 459,
       151 S.W. 533, 538 (1912)). This rule was changed for hearsay evidence in 1983. See TEX.R. EVID. 802 (“Inadmissible hearsay
       admitted without objection shall not be denied probative value merely because it is hearsay.”).
30     Tex. & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S.W. 4, 6 (1903).
31     Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 579 (Tex.2002) (holding defamation was not in course and scope of
       employment as duties required employee to cooperate in investigation but not to lie); Robertson Tank Lines, Inc. v. Van Cleave, 468
       S.W.2d 354, 360 (Tex.1971) (holding truck driver was not in course of employment during social visit to his father).
32     Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782–83 (1949) (affirming directed verdict against malpractice claim as inadequate
       expert testimony from doctor of same school or practice as defendant rendered proof legally insufficient).
33     See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996).




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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
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34     See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499–500 (Tex.1995) (holding opinion that spray caused frostbite was legally
       insufficient as it assumed absence of redness when plaintiff admitted the contrary); Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982)
       (holding opinion that physician should have warned of possible skull fracture was legally insufficient as it assumed physician was
       aware of fracture when there was no proof he was).
35     See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995) (adopting reasoning of Daubert v. Merrell Dow
       Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
36     Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714, 720 (Tex.1997).
37     Id. at 711, 724–30.
38     Kerr–McGee Corp. v. Helton, 133 S.W.3d 245, 254–57 (Tex.2004).
39     Calvert, supra note 12, at 364.
40     Id. at 364–65.
41     Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (holding evidence that truck caught fire unaccompanied by proof
       identifying any defect did not exceed a scintilla, as jurors would have to guess cause); Marathon Corp. v. Pitzner, 106 S.W.3d 724,
       729 (Tex.2003) (per curiam); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997); W. Tel. Corp. v. McCann, 128
       Tex. 582, 99 S.W.2d 895, 900 (Tex.1937); Calvert, supra note 12, at 365.
42     Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991); see also Litton Indus. Prods., Inc. v. Gammage,
       668 S.W.2d 319, 324 (Tex.1984) (citing Tex. Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968)).
43     Lozano, 52 S.W.3d at 167.
44     Calvert, supra note 12, at 365.
45     Id.
46     Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex.1998).
47     See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam); McCann, 99 S.W.2d at 900.
48     Calvert, supra note 12, at 363–64. But other commentators disagree. See Powers, supra note 10, at 1703–10. We have held that a
       “conclusively and as a matter of law” point may be asserted under a “no evidence” point. O'Neil v. Mack Trucks, Inc., 542 S.W.2d
       112, 113 (Tex.1976). And the cases in this section note that conclusive proof is often asserted by parties that do not carry the burden
       of proof. See also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam) (court must first examine record for
       evidence supporting verdict, ignoring all evidence to the contrary; if there is no such evidence, the court then examines the entire
       record to see if the contrary finding is established as a matter of law).
49     Calvert, supra note 12, at 363–64. But see, e.g., Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991) (“Cecil's points that (1) there was
       no evidence to support the findings and (2) the contrary of each finding was established as a matter of law will hereinafter collectively
       be referred to as her “no evidence” points.”).
50     St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex.2002) (plurality op.) (quoting Universe Life Ins. Co. v. Giles, 950 S.W.2d
       48, 51 n. 1 (Tex.1997)).
51     Tex. & N.O.R Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528, 530 (1947); see also Prudential Ins. Co. of Am. v. Krayer, 366
       S.W.2d 779, 783 (Tex.1963) (finding evidence of suicide undisputed after disregarding disputed portion of facts).
52     Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517, 523 (1956)
       (“[T]he trial court is required to submit only controverted issues. No jury finding is necessary to establish undisputed facts.”); Clark v.
       Nat'l Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 822 (1947) ( “Uncontroverted questions of fact need not be and should
       not be submitted to the jury for its determination.”); S. Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340, 341 (Tex.1939).
53     County of Bexar v. Santikos, 144 S.W.3d 455, 460–61 (Tex.2004).
54     PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 97–98 (Tex.2004).
55     State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex.1998).
56     Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709–10 (Tex.2003) (per curiam).
57     See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 930 (Tex.1996).
58     King v. Graham, 126 S.W.3d 75, 78–79 (Tex.2003) (per curiam) (holding no evidence supported malicious prosecution claim as
       district attorney admitted prosecution was due to item he overlooked rather than any false statements by defendants).
59     Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962) (return to regular job in which use of hand was required conclusively
       established claimant did not suffer total loss of use).
60     Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309–10 (Tex.1986) (return to work did not conclusively establish injury was
       not total as claimant could not do regular work and employer voluntarily accommodated her with lesser duties).
61     See, e.g., Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d 779, 783 (Tex.1963).
62     See Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 552 (Tex.1976).



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63     Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340 (Tex.1998); Triton Oil & Gas Corp. v. Marine Contractors & Supply,
       Inc., 644 S.W.2d 443, 446 (Tex.1982).
64     811 S.W.2d 557, 560 (Tex.1991).
65     Id. at 558.
66     Id. at 560. In defense of jurors, it should be noted that the trier-of-fact in Murdock was a judge.
67     135 Tex. 7, 136 S.W.2d 1113, 1115 (1940).
68     Id.
69     Id.
70     Clewis v. State, 922 S.W.2d 126, 133 n. 12 (Tex.Crim.App.1996) (en banc) (citation omitted).
71     Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911).
72     443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
73     Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004).
74     Our sister court reviews the legal sufficiency of criminal convictions by considering “all evidence which the jury was permitted,
       whether rightly or wrongly, to consider” in the light most favorable to the prosecution. Moff v. State, 131 S.W.3d 485, 488
       (Tex.Crim.App.2004); see also Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005).
75     In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).
76     Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex.2002); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).
77     Garza, 164 S.W.3d at 627.
78     616 S.W.2d 911, 922 (Tex.1981).
79     Id. at 926 (Greenhill, C.J., concurring).
80     See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234–35 (Tex.2004).
81     Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55–56 (Tex.1997).
82     See id. at 51 (noting same problem with previous test whether insurer had reasonable basis for denying claim).
83     See Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262–63 (Tex.2002) (finding no evidence of bad faith based in
       part on defendant's correspondence showing misunderstanding regarding settlement terms); State Farm Fire & Cas. Co. v. Simmons,
       963 S.W.2d 42, 45 (Tex.1998)(affirming bad-faith verdict after noting that insurer gave contradictory reasons for not interviewing
       potential arsonists); Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 330 (Tex.App.-Corpus Christi 2004, pet. filed) (finding some
       evidence of bad faith because, though insurer showed hospital stymied its efforts to obtain records, insurer failed to seek same
       information from other sources); Allstate Tex. Lloyds v. Mason, 123 S.W.3d 690, 704–06 (Tex.App.-Fort Worth 2003, no pet.)
       (reversing bad-faith verdict for legal insufficiency because insurer reasonably relied on expert report); Allison v. Fire Ins. Exch.,
       98 S.W.3d 227, 249–50 (Tex.App.-Austin 2002, pet. granted, judgm't vacated w.r.m.) (affirming bad-faith verdict after reviewing
       insurer's reasons for delay and insured's responsive evidence); Oram v. State Farm Lloyds, 977 S.W.2d 163, 167 (Tex.App.-Austin
       1998, no pet.) (reversing bad-faith verdict for legal insufficiency because insurer's interpretation of exclusion was reasonable though
       incorrect).
84     Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex.2003) (per curiam) (noting liability may be established by proof of
       discrimination plus proof employer's reason was pretext); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex.1996)
       (same).
85     See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.2000) (noting good-faith test considers all circumstances on which
       official acted).
86     See, e.g., PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 94 (Tex.2004) (holding no evidence supported
       jury verdict applying discovery rule based on contrary evidence that claimant's predecessor knew 3,000 windows had failed).
87     See, e.g., Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 194–95 (Tex.1998) (finding no evidence insurer denied claim in
       bad faith due to conflicting medical evidence).
88     See, e.g., State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997) (holding some evidence showed expert report was pretext
       and thus denial of claim had no reasonable basis).
89     Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex.1993);
       McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Edrington v. Kiger, 4 Tex. 89, 93 (1849).
90     McGalliard, 722 S.W.2d at 697; Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex.1986); Ford v. Panhandle & Santa Fe Ry. Co., 151
       Tex. 538, 252 S.W.2d 561, 563 (1952) (holding it was up to jurors “to resolve conflicts and inconsistencies in the testimony of any
       one witness as well as in the testimony of different witnesses”); Houston, E. & W.T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S.W. 971,
       972 (1898).
91     Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).



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92     Runnels, 47 S.W. at 972.
93     Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 907 (1942) (noting the Court “read the entire statement
       of facts”).
94     Harbin v. Seale, 461 S.W.2d 591, 594 (Tex.1970); compare Harbin v. Seale, 454 S.W.2d 271, 272 (Tex.Civ.App.-Dallas 1970)
       (reporting defendant's testimony that he was traveling only 40 miles per hour), rev'd, 461 S.W.2d 591 (Tex.1970).
95     MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 653–54 (Tex.1999) (holding evidence allowed jurors to disbelieve
       defendant's experts' testimony even though plaintiff's expert's testimony was shown to be in error); Runnels, 47 S.W. at 972; Cheatham
       v. Riddle, 12 Tex. 112, 118 (1854).
96     PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 100 (Tex.2004).
97     Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, 169–70 (Tex.1965).
98     Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex.1998); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697
       (Tex.1986).
99     Bentley v. Bunton, 94 S.W.3d 561, 599 (Tex.2002).
100    See TEX.R. CIV. P. 166a(c); Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 817 (Tex.2002) (finding no evidence that store knew of
       puddle based in part on uncontradicted testimony by only employee in the area); In re Doe 4, 19 S.W.3d 322, 325 (Tex.2000); WFAA–
       TV, Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex.1998) (holding reporter's detailed explanation of foundation of report established
       lack of malice as matter of law).
101    See, e.g., Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754 (Tex.1993); Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601
       (Tex.1993); Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 365 (1957); Howard Oil Co. v. Davis, 76 Tex. 630,
       13 S.W. 665, 667 (1890) (holding reviewing court must uphold jury verdict despite strong evidence to the contrary if evidence is
       conflicting).
102    See, e.g., Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex.1999); Caller–Times Publ'g Co. v. Triad Communications, Inc.,
       826 S.W.2d 576, 580 (Tex.1992); Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex.1966).
103    Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48–49 (Tex.1998).
104    Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex.1998).
105    White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262–63 (Tex.1983).
106    Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 502 (1952).
107    St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542–43 (Tex.2002) (plurality op.).
108    T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992).
109    Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341–42 (Tex.1998).
110    De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98–99 (1955).
111    Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); id. at 162–63 (Hecht, J., concurring and dissenting).
112    See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
       136 S.W.3d 227, 234 (Tex.2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Mobil Oil Corp. v. Ellender, 968
       S.W.2d 917, 922 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Burroughs Wellcome Co. v.
       Crye, 907 S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994); Orozco v. Sander, 824 S.W.2d
       555, 556 (Tex.1992); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292,
       297 (Tex.1983) (per curiam).
113    See William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” & “Insufficient Evidence,” 69 TEX. L.R. 515, 517–20 (1991).
114    Gragg, 151 S.W.3d at 552; St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Southwestern Bell Mobile Sys.,
       Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc.,
       960 S.W.2d 41, 48 (Tex.1998); Havner, 953 S.W.2d at 711; Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 75 (Tex.1997) (Hecht,
       J., concurring); Preferred Heating & Air Conditioning Co. v. Shelby, 778 S.W.2d 67, 68 (Tex.1989) (per curiam); Burk Royalty Co.
       v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970); W. Tel. Corp. v. McCann, 128 Tex.
       582, 99 S.W.2d 895, 898 (Tex.1937).
115    See St. Joseph Hosp., 94 S.W.3d at 519–20 (Tex.2002) (plurality op.); Giles, 950 S.W.2d at 51 n. 1 (citing Wininger v. Ft.
       Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912) and Tex. & N.O. Ry. Co. v. Rooks, 293 S.W. 554, 556–57
       (Tex.Comm'n.App.1927)).
116    Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 (Tex.2004) (citing Choate v. San Antonio & A.P. Ry., 91 Tex. 406, 44
       S.W. 69, 69 (1898); Muhle v. N.Y., T. & M. Ry., 86 Tex. 459, 25 S.W. 607, 608 (1894)).
117    Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Qantel Bus. Sys., Inc. v. Custom Controls
       Co., 761 S.W.2d 302, 303 (Tex.1988); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Triangle Motors v. Richmond, 152 Tex.



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       354, 258 S.W.2d 60, 61 (1953); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562 (1952); Anglin v. Cisco
       Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935, 938 (1940).
118    Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004); S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996); Colvin v. Red
       Steel Co., 682 S.W.2d 243, 245 (Tex.1984); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983); Seideneck v. Cal
       Bayreuther Assocs., 451 S.W.2d 752, 753 (Tex.1970); Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953); Fitz–Gerald
       v. Hull, 150 Tex. 39, 237 S.W.2d 256, 258 (1951); Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121, 122 (1950); White v. White, 141
       Tex. 328, 172 S.W.2d 295, 296 (1943); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 445 (1941); Wellington Oil Co. v.
       Maffi, 136 Tex. 201, 150 S.W.2d 60, 61 (1941); Chicago, R.I. & G. Ry. Co. v. Carter, 261 S.W. 135, 135 (Tex.Com.App.1924, judgm't
       adopted); Charles v. El Paso Elec. Ry. Co., 254 S.W. 1094, 1094–95 (Tex.Com.App.1923, holding approved, judgm't adopted).
119    Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); Vance v. My Apartment Steak House of San Antonio,
       Inc., 677 S.W.2d 480, 483 (Tex.1984); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983); Jones v. Tarrant Util. Co.,
       638 S.W.2d 862, 865 (Tex.1982); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978); Henderson v. Travelers Ins. Co., 544 S.W.2d
       649, 650 (Tex.1976); Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (Tex.1964).
120    Act of April 25, 1931, 42d Leg., R.S., ch. 77, § 1, 1931 Tex. Gen. Laws 119; Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d
       7, 13 (Tex.1940); Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971 (Tex.1936). Cf. Deal v. Craven, 277 S.W. 1046, 1047
       (Tex.Com.App.1925, judgm't adopted) (“It has long been settled in this state that the judgment must follow the verdict, and that the
       courts are without power to enter a judgment notwithstanding a verdict upon a material issue.”).
121    Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex.1998) (“[W]e consider the evidence in the light most favorable
       to the verdict and reasonable inferences that tend to support it.”); Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983) (“In acting
       on the motion [for judgment notwithstanding the verdict], all testimony must be viewed in a light most favorable to the party against
       whom the motion is sought, and every reasonable intendment deducible from the evidence is to be indulged in that party's favor.”)
       (emphasis added); Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex.1982) (same); Douglass v. Panama, Inc., 504 S.W.2d
       776, 777 (Tex.1974) (same); Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962) (same); Houston Fire & Cas. Ins. Co.
       v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603–04 (1953) (affirming trial court's implied disregard of one jury answer based on
       “consideration of the transcript as a whole”); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952) (“[W]e must consider all
       the testimony in the record from the standpoint most favorable to the plaintiff.”) (emphasis added); Neyland v. Brown, 141 Tex. 253,
       170 S.W.2d 207, 211 (Tex.1943) (considering judgment non obstante veredicto “in the light of the record as a whole”); Le Master
       v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 225 (1942) (“[W]e must view LeMaster's testimony, as well as all other
       testimony in the record, from a standpoint most favorable to him.”) (emphasis added); McAfee v. Travis Gas Corp., 137 Tex. 314, 153
       S.W.2d 442, 445 (1941) (“[W]e must regard the evidence contained in this record in its most favorable light for McAfee ... because
       of the instructed verdict and judgment non obstante veredicto.”); see also Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417,
       424–29 (Tex.2004) (upholding judgment non obstante veredicto based on conclusive evidence contrary to verdict).
122    See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (per curiam); Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003)
       (per curiam); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671
       (Tex.1990) (per curiam); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986); Tomlinson v. Jones, 677 S.W.2d
       490, 492 (Tex.1984); Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Freeman v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 191
       (Tex.1980); Dodd v. Tex. Farm Prods. Co., 576 S.W.2d 812, 814–15 (Tex.1979); Campbell v. Northwestern Nat'l Life Ins. Co., 573
       S.W.2d 496, 497 (Tex.1978); Miller v. Bock Laundry Mach. Co., 568 S.W.2d 648, 650 (Tex.1977); Sobel v. Jenkins, 477 S.W.2d
       863, 865 (Tex.1972); C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 193 (Tex.1966).
123    See Tiller, 121 S.W.3d at 713 (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)); Miller, 102 S.W.3d at 709 (same); Best,
       786 S.W.2d at 671 (citing King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985)); Tomlinson, 677 S.W.2d at 492 (citing Glover v. Tex.
       Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981)); Campbell, 573 S.W.2d at 497 (citing Martinez v. Delta Brands, Inc., 515 S.W.2d
       263, 265 (Tex.1974)); Campbell, 406 S.W.2d at 193 (citing Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 697–98 (1914)).
124    IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Provident Life & Accident Ins. Co.
       v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003); Wal–Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002); Gonzalez v.
       Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984).
125    See TEX.R. CIV. P. 166a(i).
126    530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
127    FED.R.CIV.P. 50(a)(1).
128    336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949).
129    Id. at 57, 69 S.Ct. 413.
130    Reeves, 530 U.S. at 149–50, 120 S.Ct. 2097 (citations omitted).




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131    Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (emphasis added) (citation omitted);
       accord Long v. Long, 144 S.W.3d 64, 67 (Tex.App.-El Paso 2004, no pet.); Gore v. Scotland Golf, Inc., 136 S.W.3d 26, 29 (Tex.App.-
       San Antonio 2003, pet. denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-Dallas 2002, pet. denied); N. Am.
       Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 113 n. 3 (Tex.App.-Beaumont 2001, pet. denied); Molina v. Moore, 33 S.W.3d 323,
       329 (Tex.App.-Amarillo 2000, no pet.); Wal–Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 470 n. 3 (Tex.App.-Austin 2000, pet. denied);
       see also In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951) (per curiam) (holding court of appeals erred in failing to
       distinguish between legal and factual sufficiency review by not weighing all the evidence when conducting the latter).
132    Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981) (noting that review of gross negligence finding by considering all the
       evidence appeared to but did not conflict with traditional no-evidence test).
133    Dorsaneo, supra note 10, at 1503; see also Hardberger, supra note 10, at 17 (arguing exclusive standard is “designed to afford high
       deference to jury verdicts”).
134    State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994).
135    See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex.2000) (noting plaintiff argued defendant's frequent inspections of
       stairs showed knowledge of inherent danger, while court held it showed the opposite as inspections found nothing); State Farm Fire
       & Cas. Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998) (affirming bad-faith verdict after noting insurer's reasons for denial were
       contradictory).
136    See, e.g., Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex.1993) (noting evidence of single previous minor stumble
       supported negligence finding but not gross negligence).
137    See Judith Resnik, Managerial Judges, 96 HARV. L.R.. 374, 382–83 (1982) (noting that images of justice appeared blindfolded only
       within the last four hundred years).
138    Justice Calvert's use of the masculine in 1960 may perhaps be forgiven, for although Hattie Hennenberg, Hortense Ward, and Ruth
       Brazzil served temporarily on this Court in 1925, and Sarah T. Hughes was appointed as a state district judge ten years later, it
       was not until 1954 that the Texas Constitution was amended to allow women to serve as jurors, and not until 1973 that Mary Lou
       Robinson became the first women to serve as a state appellate judge. See James T. “Jim” Worthen, The Organizational & Structural
       Development of Intermediate Appellate Courts in Texas, 46 S. TEX. L.REV. 33, 75 (2004); Robert L. Dabney, Jr. We Were There,
       HOUSTON B.J. Nov.-Dec.1999, at 42, 44.
139    Calvert, supra note 12, at 364.
140    Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring).
141    86 S.W.3d 693, 709.
142    Id. at 703, 705.
143    Id. at 705.
144    Id. at 704–05.
145    Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); see also State Farm Lloyds v. Nicolau, 951 S.W.2d 444,
       448 (Tex.1997) (holding reliance on expert report did not foreclose bad-faith claim because claimant “presented evidence from which
       a fact-finder could logically infer that Haag's reports were not objectively prepared, that State Farm was aware of Haag's lack of
       objectivity, and that State Farm's reliance on the reports was merely pretextual.”).
146    Cf. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 140 (Tex.2004) (holding complaint letters may require manufacturer to
       investigate, but are not evidence complaints are true).
147    Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004) (emphasis added).


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   28
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

                                                                             Proceedings
                      292 S.W.3d 14                                     A hearing examiner may exceed his jurisdiction
                  Supreme Court of Texas.                               under the Local Government Code, in a
                                                                        disciplinary action involving a municipal
         CITY OF PASADENA, Texas, Petitioner                            employee, even if his decision is reasoned rather
                         v.                                             than arbitrary. V.T.C.A., Local Government
             Richard SMITH, Respondent.                                 Code § 143.057(j).

            No. 06–0948. | Argued Sept. 10,                             5 Cases that cite this headnote
           2008. | Decided Aug. 28, 2009.
                                                                  [3]   Municipal Corporations
Synopsis
                                                                           Proceedings
Background: City, appealing decision by independent
hearing examiner to dismiss city's notice of suspension                 A hearing examiner exceeds his jurisdiction,
against police officer, filed its original petition in district         in a disciplinary action involving a municipal
court. The 113th Judicial District Court, Harris County,                employee, when his acts are not authorized by
Patricia Ann Hancock, J., granted police officer's plea to the          the Local Government Code or are contrary
jurisdiction and dismissed the city's lawsuit. City appealed.           to it, or when they invade the policy-setting
The Court of Appeals, 263 S.W.3d 80,Terry Jennings, J.,                 realm protected by the nondelegation doctrine.
affirmed. City petitioned for review.                                   V.T.C.A., Local Government Code § 143.057(j).

                                                                        12 Cases that cite this headnote

Holdings: The Supreme Court of Texas, Hecht, J., held that:
                                                                  [4]   Municipal Corporations
                                                                           Review in general
[1] hearing examiner exceeded his jurisdiction in summarily
reversing a municipal police officer's indefinite suspension,           Independent hearing examiner in civil service
and                                                                     disciplinary action exceeded his jurisdiction in
                                                                        summarily reversing municipal police officer's
[2] city's petition was timely filed.                                   indefinite suspension and reinstating him with
                                                                        back pay and full benefits because the Local
                                                                        Government Code required the examiner to
Reversed and remanded.                                                  reach a decision based on evidence. V.T.C.A.,
                                                                        Local Government Code §§ 143.010(g),
                                                                        143.057(j).

 West Headnotes (6)                                                     6 Cases that cite this headnote


 [1]     Constitutional Law                                       [5]   Municipal Corporations
             Presumptions and Construction as to                           Review in general
         Constitutionality                                              In absence of express statutory provision for
         When faced with multiple constructions of a                    appeal by a city of independent hearing
         statute, the Supreme Court must interpret the                  examiner's decision, city's appeal of decision by
         statutory language in a manner that renders it                 examiner to dismiss city's notice of suspension
         constitutional if it is possible to do so.                     against municipal police officer was governed
                                                                        by analogous statute, providing for 10-day filing
         1 Cases that cite this headnote                                period for police officer's filing of petition to
                                                                        set aside, applicable to a city with a population
 [2]     Municipal Corporations                                         of less than 1.5 million, rather than statute,
                                                                        providing 10-day filing period, applicable to


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

        a cities with a population of more than 1.5              hearing officer exceeded his jurisdiction. 4 In this case we
        million. V.T.C.A., Local Government Code §§              hold that the hearing examiner exceeded his jurisdiction in
        143.015(a), 143.1016(j).                                 summarily reversing an officer's indefinite suspension and
                                                                 reinstating him with back pay and full benefits because the
        2 Cases that cite this headnote
                                                                 Act requires a hearing examiner to reach a decision based
                                                                 on evidence. Accordingly, we reverse the judgment of the
 [6]    Municipal Corporations                                   court of appeals 5 and remand the case to the district court for
           Review in general                                     further proceedings.
        City's appeal of decision by independent hearing
        examiner to dismiss city's notice of suspension          City of Pasadena Police Chief M.A. Massey suspended
        against police officer was timely, where appeal          officer Richard Smith indefinitely. The Act gave Smith
        was filed within ten days after receipt of               two routes of appeal—either to the City's civil service
        decision. V.T.C.A., Local Government Code §              commission 6 or to an independent third-party hearing
        143.015(a).
                                                                 examiner 7 —independent third-party hearing examiner—and
        7 Cases that cite this headnote                          he chose the latter, as civil service employees often do. 8 The
                                                                 parties selected a hearing examiner from a list provided by the
                                                                  *16 American Arbitration Association. 9 When the hearing
                                                                 convened, counsel for the City announced ready, but counsel
Attorneys and Law Firms                                          for Smith moved that the suspension be overturned and that
                                                                 Smith be reinstated without further ado because Chief Massey
*15 Kevin D. Jewell, William S. Helfand, Norman R. Giles,
Chamberlain, Hrdlicka, White, Williams & Martin, Houston,        —the department head 10 on whose statement the suspension
TX, for Petitioner.                                              was based 11 —was not present. The City's counsel stated
                                                                 that he was prepared to prove the grounds for the suspension
Heidi Lee Widell, San Antonio, TX, for Respondent.               through Assistant Chief Rahr, who was present, but the
                                                                 hearing examiner agreed with Smith, concluding that “these
Marcus L. Dobbs, Senior Assistant City Attorney, Houston,
                                                                 charges should be dismissed”. The hearing concluded in less
TX, for Amicus Curiae–City of Houston.
                                                                 than half an hour without any evidence being presented.
Evelyn Waithira Njuguna, Texas Municipal League, Austin,
TX, for Amicus Curiae–Texas Municipal League.                    Later, in a written decision, the hearing examiner ruled
                                                                 that Smith should be reinstated, that he should be fully
James C. Ho, Solicitor General of Texas, Austin, TX, for         compensated for the time he had been suspended, and that
Amicus Curiae–State of Texas.                                    all service credits and benefits should be restored. The
                                                                 written decision gave as the sole ground for the ruling: “As
B. Craig Deats, Deats Durst Owen & Levy, P.L.L.C., Austin,       the Department Head failed to appear under Texas Local
TX, for Amicus Curiae–TX Assoc. of Firefighters.                 Government Code, Section 143.1015(2)(k)(4), at hearing
                                                                 on December 9, 2004, the Hearing Examiner upheld the
Opinion
                                                                 appeal and dismissed the charges against Officer Smith.” No
Justice HECHT delivered the opinion of the Court.                such section exists. The hearing examiner apparently meant
                                                                 section 143.1015(k) of the Act, which states in part: “The
The Fire Fighters and Police Officers Civil Service Act 1        director [of fire fighters' and police officers' civil service 12 ]
limits the grounds for judicial review of a hearing examiner's   may not send the hearing examiner the department head's
decision in an appeal from a disciplinary suspension, 2 but as   original written statement. The department head shall submit
we observed in City of Houston v. Clark, if those limitations    the written statement and charges to the hearing examiner
do not allow for meaningful review, they may violate             at the hearing.” 13 The hearing examiner also appears to
constitutional restrictions on the delegation of government      have overlooked the fact that some of the Act's provisions,
authority to a private person. 3 One ground is that the          including section 143.1015, apply only to a city with a




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

population of at least 1.5 million—viz, Houston. 14 The City         A delegation of power without such standards is an
                                                                     abdication of the authority to set government policy which
of Pasadena, a Houston suburb, does not qualify. 15
                                                                     the Constitution assigns to the legislative department. While
                                                                     legislative delegations of authority to other governmental
 *17 The City petitioned the district court for review. Smith
                                                                     entities can raise constitutional concerns,
filed a plea to the jurisdiction, arguing that the City's petition
was untimely. The court sustained the plea, and the City                         private delegations clearly raise even
appealed. Without addressing the timeliness of the appeal, 16                    more troubling constitutional issues
the court held that the district court had no jurisdiction over                  than their public counterparts. On a
the case under section 143.057(j) of the Act. 17 We granted                      practical basis, the private delegate
                                                                                 may have a personal or pecuniary
the City's petition for review. 18
                                                                                 interest which is inconsistent with or
                                                                                 repugnant to the public interest to
Section 143.057(j), which is not limited to cities over 1.5
                                                                                 be served. More fundamentally, the
million, 19 states in pertinent part: “A district court may hear                 basic concept of democratic rule under
an appeal of a hearing examiner's award only on the grounds                      a republican form of government is
that the arbitration panel was without jurisdiction or exceeded                  compromised when public powers are
its jurisdiction or that the order was procured by fraud,                        abandoned to those who are neither
collusion, or other unlawful means.” 20 Because subsection                       elected by the people, appointed
143.057(j) is identical to the provision we construed in                         by a public official or entity, nor
Clark,section 143.1016(j), though that section applies only to                   employed by the government. Thus,
Houston, 21 Clark applies to all civil service cities. 22                        we believe it axiomatic that courts
                                                                                 should subject private delegations to
Clark rejected the argument that only a fire fighter or                          a more searching scrutiny than their
police officer can appeal to the district court and held                         public counterparts. 27
that a municipality may appeal as well, even though
the statute is silent on the subject. 23 In reaching that            Applying eight factors, 28 we held that the delegation
conclusion, we were mindful that “interpreting Section               of power to the private entity in that case was
143.1016(j) to foreclose municipalities' appellate rights could
                                                                     unconstitutional. 29
well render the Legislature's delegation of authority to
independent hearing examiners constitutionally suspect.” 24          We do not determine here whether this Act's delegation of
The potential problem was the nondelegation doctrine—                authority to a hearing examiner violates the nondelegation
the Texas Constitution's restrictions on the delegation of           doctrine; we consider only whether the court of appeals'
governmental power, especially to private persons, which             construction of section 143.057(j) raises constitutional
we thoroughly explained in Texas Boll Weevil Eradication             concerns. Thus, we do not address all eight factors listed in
Foundation, Inc. v. Lewellen. 25 There, we reiterated:               Boll Weevil but focus on the first one—whether the hearing
                                                                     examiner's “actions [are] subject to meaningful review by
                                                                     a state agency or other branch of state government” 30 —
 The Texas Legislature may delegate its powers to agencies
                                                                     because it is directly implicated by the scope of review in
 established to carry out legislative purposes, as long as
                                                                     section 143.057(j). The Act's use of independent hearing
 it establishes reasonable standards to guide the entity to
                                                                     examiners provides a forum for resolving civil service
 which the powers are delegated.
                                                                     disputes that is detached from city government, thus
***
                                                                     furthering the Act's purpose of “secur[ing] efficient fire
  The separation of powers clause [TEX. CONST. art.                  and police departments composed of capable personnel who
  II, § 1] requires that the standards of delegation be              are free from political influence and who have permanent
  reasonably clear and hence acceptable as a standard *18            employment tenure as public servants.” 31 In Proctor v.
  of measurement. 26                                                 Andrews, we rejected the contention that the Act violates
                                                                     the nondelegation doctrine by failing to provide adequate



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

standards for assuring that arbitrators are qualified and         narrow. 42 By contrast, an independent hearing examiner's
        32
neutral.   Here, the State as amicus curiae argues that           jurisdiction is created by the Act and comes with significant
submission of civil service disputes to hearing examiners         constraints. The Act states that “[i]n each hearing conducted
is simply a resort to arbitration and therefore raises            [on appeal from a promotional bypass or disciplinary action],
no constitutional concerns. 33 But if the Act does not            the hearing examiner has the same duties and powers as the
bind hearing examiners to definite *19 standards for              [civil service] commission”. 43 The Act prescribes various
reaching decisions and instead gives them broad latitude          deadlines, procedures, and limitations on the commission, 44
in determining not only factual disputes but the applicable
                                                                  which apply equally to hearing examiners. 45 Importantly, the
law, they become not merely independent arbiters but policy
                                                                  Act states: “The commission shall conduct the hearing fairly
makers, which is a legislative function. This would raise
                                                                  and impartially as prescribed by this chapter and shall render
nondelegation concerns, an issue noted but not addressed in
                                                                  a just and fair decision. The commission may consider only
Proctor. 34 It is one thing for a hearing examiner to determine
                                                                  the evidence submitted at the hearing.” 46 This provision both
whether conduct for which an officer or fire fighter has been
                                                                  confers and limits the power of a commission and a hearing
disciplined occurred as charged; it is quite another thing for
                                                                  examiner. It mandates that a decision be made on evidence
a hearing examiner to decide whether conduct that did occur
                                                                  submitted at the hearing.
deserves discipline. If a city can invoke judicial review to
require that a hearing examiner's ruling be made according to
                                                                  The hearing examiner in this case violated that requirement.
law, one concern of the nondelegation doctrine is satisfied.
                                                                  His ruling was based entirely on the absence of the department
But as we observed in Clark, “if the right of appeal provided
                                                                  head, a witness the City did not expect to offer. The hearing
by Section 143.1016(j) does not afford a city meaningful
                                                                  examiner did not allow evidence to be presented. Nothing in
review of the merits of a [hearing examiner's] decision, ...
                                                                  the Act permitted him to rule as he did. Smith argues that the
delegation of grievance decisions to an independent hearing
                                                                  hearing examiner could reasonably have concluded that since
examiner may raise constitutional problems.” 35                   section 143.1015(k) requires the presence of the department
                                                                  head at civil service appeal proceedings in Houston, the
 [1] Thus, in construing the scope of judicial review             same rule should apply in other cities. But the Act does
permitted by section 143.057(j), we must be mindful as in         not empower a hearing examiner to make rules. He had
Clark that “[w]hen faced with multiple constructions of a         no authority to impose on the City a requirement that the
statute, we must interpret the statutory language in a manner     Act makes quite clear does not apply. Moreover, even
that renders it constitutional if it is possible to do so”. 36    when section 143.1015(k) does apply, it does not authorize
The City argues that the hearing examiner's summary ruling        rendition of a default judgment as an automatic penalty for
exceeded his jurisdiction within the meaning of section           noncompliance. 47 Smith argues that the hearing examiner
143.057(j). The statute actually refers to an “arbitration        can be faulted only for a simple mistake of law, but it clearly
panel” exceeding its jurisdiction, but the term includes a        exceeds a hearing examiner's jurisdiction to refuse to hear
hearing examiner. 37 The reference to arbitration suggests        evidence before deciding that a police officer was improperly
the source for the statutory text. The predecessor to section     disciplined, contrary to the express requirement of the Act.
143.057(j) was first enacted in 1983. 38 The Texas General
Arbitration Act, enacted in 1965, uses similar language           Smith faults the City for not pointing out to the hearing
in providing that a court can vacate an arbitration award         examiner the inapplicability of section 143.1015(k), and for
“procured by corruption, fraud or other undue means” or           not *21 requesting a continuance. Certainly, the City would
                                                                  have been better served had counsel done so. But the City's
where “[t]he arbitrators exceeded their powers”. 39 The
                                                                  failure to object to an incorrect citation cannot expand the
Federal Arbitration Act, enacted in 1947, uses almost
                                                                  jurisdiction of a hearing examiner, any more than it could
identical language. 40                                            expand the jurisdiction of a trial court.

*20 An arbitrator derives his power from the parties'              [2] [3] We agree with the court of appeals: “[a]sserting
agreement to submit to arbitration, 41 and because the law        that a decision made by the hearing examiner is incorrect
favors arbitration, and arbitration agreements are often quite    is not the same as asserting that the examiner did not
broad, judicial review of an arbitration award is usually very    have jurisdiction.” 48 In borrowing language from the Texas


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

                                                                        issue. In either event, the same rule applies: we look to a
Arbitration Act, the Act appears to intend a restrictive
                                                                        provision related to the right of appeal for a deadline. There
standard for judicial review. But the court of appeals
                                                                        are two possibilities in the Act. One is section 143.1016(j),
failed to recognize that the Act imposes significant limits
                                                                        applicable only to Houston, which provides that “[i]f the basis
on hearing examiners' authority to determine disciplinary
                                                                        for the appeal of the hearing examiner's award is based on the
action disputes, and the nondelegation doctrine requires
                                                                        grounds that the arbitration panel was without jurisdiction or
enforcement of those limits. Those limits restrict a hearing
                                                                        exceeded its jurisdiction, the petition must be filed in district
examiner's jurisdiction. It is difficult to distill from these
statutory and constitutional constraints a simple, precise              court within 10 days of the hearing examiner's decision.” 52
standard for determining whether a hearing examiner has                 The other is section 143.015(a), which applies to other cities:
exceeded his jurisdiction. Five courts of appeals have stated
that it occurs when the ruling amounts to an abuse of
                                                                           If a fire fighter or police officer is dissatisfied with any
authority. 49 Three of the five have added that “[a]n abuse                commission decision, the fire fighter or police officer may
of authority occurs when a decision is so arbitrary and                    file a petition in district court asking that the decision be
unreasonable that it amounts to a clear and prejudicial error              set aside. The petition must be filed within 10 days after
of law.” 50 None of these expressions accurately restates the              the date the final commission decision:
restrictions on a hearing examiner's authority. Even incidental
errors in applying the law may be considered clear and                        (1) is sent to the fire fighter or police officer by certified
prejudicial, and almost any decision seems unreasonable to                    mail; or
the loser. A hearing examiner may exceed his jurisdiction
                                                                              (2) is personally received by the fire fighter or police
even if his decision is reasoned rather than arbitrary. And
while a hearing examiner abuses his authority if he exceeds                   officer or by that person's designee. 53
his jurisdiction, the former phrase does nothing to inform              We think the latter is the more closely analogous provision in
the latter. The most accurate test we can state is that a               this case, so that the same deadline applies to all appellants
hearing examiner exceeds his jurisdiction when his acts                 other than in Houston, whether cities, officers, or fire fighters.
are not authorized by the Act or are contrary to it, or
when they invade the policy-setting realm protected by the     [6] The undisputed facts are that the hearing examiner issued
nondelegation doctrine.                                       his ruling on March 31, 2005, that the decision was sent by
                                                              regular mail to the City on April 7, that it was received April
 [4] [5] By that test, the hearing examiner in this case 11, and that the City filed its petition in the district court on
exceeded his jurisdiction, and therefore the City's appeal to April 20. Since the decision was not sent by certified mail,
the district court was authorized under section 143.057(j).   subsection (1) of section 143.015(a) does not apply. Under
The issue remains whether it was timely perfected. Since the  subsection (2), the City's petition, filed nine days after receipt,
Act does not expressly provide for an appeal by a city—we     was timely.
have construed it to do so to avoid constitutional problems
—it understandably does not expressly set a deadline *22      Accordingly, we reverse the judgment of the court of
for a city's appeal. We have held that “[w]hen a statute      appeals and remand the case to the district court for further
lacks an express limitations period, courts look to analogous proceedings consistent with this opinion.
causes of action for which an express limitations period is
available either by statute or by case law.” 51 Here, the parties       Parallel Citations
disagree as to whether a deadline for appeal is jurisdictional
or in the nature of limitations, and we need not resolve that           29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171


Footnotes
1       TEX. LOC. GOV'T CODE Chapter 143, §§ 143.001–.363.
2       Id. § § 143.057(j) (“A district court may hear an appeal of a hearing examiner's award only on the grounds that the arbitration panel
        was without jurisdiction or exceeded its jurisdiction or that the order was procured by fraud, collusion, or other unlawful means.”),
        143.1016(j) (same for cities with a population of 1.5 million or more).




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       5
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

3      197 S.W.3d 314, 324 (Tex.2006) (“Of course, if the right of appeal provided by Section 143.1016(j) does not afford a city meaningful
       review of the merits of a decision, ... delegation of grievance decisions to an independent hearing examiner may raise constitutional
       problems.”) (citing Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 472 (Tex.1997)).
4      Supra note 2.
5      263 S.W.3d 80 (Tex.App.-Houston [1st Dist.] 2006).
6      TEX. LOC. GOV'T CODE §§ 143.010, 143.053.
7      Id.§ 143.057.
8      See Proctor v. Andrews, 972 S.W.2d 729, 736 (Tex.1998) (“It is likely a perception of bias in favor of the City, on the part of the
       Civil Service Commission, that prompts officers to request that their appeal be heard under section 143.057 [by an independent
       hearing examiner].”). Amicus curiae, the Texas State Association of Fire Fighters, confirms that fire fighters have a “strong desire ...
       to appeal ... to independent hearing examiners ... rather than to civil service commissions whose members are appointed solely by
       the cities' chief executives.” Brief of Texas State Association of Fire Fighters as Amicus Curiae Supporting Respondent at 2.
9      TEX. LOC. GOV'T CODE § 143.057(d) (“If the appealing fire fighter or police officer chooses to appeal to a hearing examiner, the
       fire fighter or police officer and the department head, or their designees, shall first attempt to agree on the selection of an impartial
       hearing examiner. If the parties do not agree on the selection of a hearing examiner on or within 10 days after the date the appeal is
       filed, the director shall immediately request a list of seven qualified neutral arbitrators from the American Arbitration Association or
       the Federal Mediation and Conciliation Service, or their successors in function. The fire fighter or police officer and the department
       head, or their designees, may agree on one of the seven neutral arbitrators on the list. If they do not agree within five working days
       after the date they received the list, each party or the party's designee shall alternate striking a name from the list and the name
       remaining is the hearing examiner. The parties or their designees shall agree on a date for the hearing.”).
10     Id. § 143.003(2) (“ ‘Department head’ means the chief or head of a fire or police department or that person's equivalent, regardless
       of the name or title used.”).
11     Id. § 143.052(c) (“If the department head suspends a fire fighter or police officer, the department head shall, within 120 hours after
       the hour of suspension, file a written statement with the commission giving the reasons for the suspension. The department head shall
       immediately deliver a copy of the statement in person to the suspended fire fighter or police officer.”).
12     Id. § 143.003(3) (“ ‘Director’ means the director of fire fighters' and police officers' civil service.”).
13     Id. § 143.1015(k).
14     Id. § 143.101(a) (“Except as otherwise provided, this subchapter [G, containing sections 143.101–.135, including 143.1015] applies
       only to a municipality with a population of 1.5 million or more.”); (b) (“Except as otherwise provided, the provisions of Subchapters
       A–F apply to each municipality covered under this subchapter.”).
15     According to the 2000 United States census, the population of the City of Pasadena was 141,674. See U.S. Census Bureau, “Pasadena
       city, Texas QuickLinks”, http://quickfacts.census.gov/qfd/states/48/4856000lk. html, http://factfinder.census.gov/servlet/QTTable?
       _bm =y&-qr_name=DEC_ 2000_SF1_U_DP1&-ds_name=DEC_2000_SF1_U&-_lang=en&-geo_id=16000US4856000.
16     263 S.W.3d 80, 85 n. 6 (Tex.App.-Houston [1st Dist.] 2006).
17     Id. at 85.
18     51 Tex. Sup.Ct. J. 866 (May 16, 2008) (granted on motion for rehearing); 51 Tex. Sup.Ct. J. 180 (Dec. 7, 2007) (prior disposition).
19     See supra note 14; compareTEX. LOC. GOV'T CODE §§ 143.053(a) and .052(a) (“This section does not apply to a municipality
       with a population of 1.5 million or more.”), with§ 143.057.
20     TEX. LOC. GOV'T CODE § 143.057(j).
21     Id. § 143.101(a) (providing that subchapter G, which includes 143.1016, applies only to a municipality with a population of 1.5
       million or more).
22     197 S.W.3d 314, 317 n. 4 (Tex.2006) (“Section 143.1016 was modeled on the language of Section 143.057. In particular, the language
       governing appeals of independent hearing examiner decisions in Sections 143.1016(c) and (j) exactly duplicates that of Sections
       143.057(c) and (j). Therefore, our decision today is not limited to the City of Houston; it applies with equal force to all municipalities
       governed by Chapter 143 of the Local Government Code.”).
23     Id. at 318–320.
24     Id. at 320.
25     952 S.W.2d 454 (Tex.1997).
26     Id. at 467 (citations and internal quotation marks omitted).
27     Id. at 469.
28     Id. at 472 (“1. Are the private delegate's actions subject to meaningful review by a state agency or other branch of state government?
       2. Are the persons affected by the private delegate's actions adequately represented in the decisionmaking process? 3. Is the private



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           6
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

       delegate's power limited to making rules, or does the delegate also apply the law to particular individuals? 4. Does the private delegate
       have a pecuniary or other personal interest that may conflict with his or her public function? 5. Is the private delegate empowered
       to define criminal acts or impose criminal sanctions? 6. Is the delegation narrow in duration, extent, and subject matter? 7. Does
       the private delegate possess special qualifications or training for the task delegated to it? 8. Has the Legislature provided sufficient
       standards to guide the private delegate in its work?”).
29     Id. at 471, 475.
30     Id. at 472.
31     TEX. LOC. GOV'T CODE § 143.001(a).
32     972 S.W.2d 729 (Tex.1998).
33     Brief of the State of Texas as Amicus Curiae in Support of Respondent at 1–2.
34     972 S.W.2d at 735 (“The City does not contend that the Legislature impermissibly delegated authority to hear appeals to a private
       decisionmaker. While this broader delegation of authority was discussed in amici briefs submitted by the cities of Marshall, Amarillo,
       and Garland, and suggested at the oral argument of this case, it was not a part of the City's case either in the courts below or here.”).
35     City of Houston v. Clark, 197 S.W.3d 314, 324 (Tex.2006).
36     Id. at 320 (citing Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex.1990) (“[s]tatutes are given a construction
       consistent with constitutional requirements, when possible, because the legislature is presumed to have intended compliance with [the
       constitution]”), and TEX. GOV'T CODE § 311.021(1) (“In enacting a statute, it is presumed that ... compliance with the constitutions
       of this state and the United States is intended....”)).
37     Id. at 318 n. 5 (“The Legislature's use of the phrase ‘arbitration panel’ is difficult to explain in the context of appeals to individual
       independent hearing examiners under Section 143.1016, since the hearing examiner, not an arbitration panel, provides a final
       decision. For purposes of this case, we presume Section 143.1016(j)'s reference to ‘arbitration panel’ includes an independent hearing
       examiner.”).
38     Act of May 30, 1983, 68th Leg., R.S., ch. 420, § 9, 1983 Tex. Gen. Laws 2246, 2267, formerly codified as TEX.REV.CIV. STAT.
       ANN. art. 1269m, § 16c(f).
39     Act of May 29, 1965, 59th Leg., R.S., ch. 689, § 1, 1965 Tex. Gen. Laws 1593, 1599, formerly TEX.REV.CIV. STAT. ANN. art.
       237, § A(1), (3), now TEX. CIV. PRAC. & REM.CODE § 171.088(a)(1), (3)(A).
40     9 U.S.C. § 10(1), (4); Pub.L. No. 80–282, 61 Stat. 669 (1947).
41     Gulf Oil Corp. v. Guidry, 160 Tex. 139, 327 S.W.2d 406, 408 (1959) (“[T]he authority of arbitrators is derived from the arbitration
       agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication.”).
42     CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex.2002) ( “[W]e have long held that ‘an award of arbitrators upon matters
       submitted to them is given the same effect as the judgment of a court of last resort. All reasonable presumptions are indulged in favor of
       the award, and none against it.’ ”) (quoting City of San Antonio v. McKenzie Constr. Co., 136 Tex. 315, 150 S.W.2d 989, 996 (1941)).
43     TEX. LOC. GOV'T CODE § 143.057(f).
44     See, e.g., id.§§ 143.010 and 143.051–.054.
45     Id. § 143.057(f).
46     Id.§ 143.010(g).
47     Cf. § 143.052(f) (“If the department head does not specifically point out in the written statement the act or acts of the fire fighter
       or police officer that allegedly violated the civil service rules, the commission shall promptly reinstate the person.”); see also§
       143.1015(j) (“In any hearing relating to the appeal or review of an action of the department head that affects a fire fighter or police
       officer, the department head shall have the burden of proof. The department head is required to prove the allegations contained in the
       written statement, and the department head is restricted to the written statement and charges, which may not be amended.”).
48     263 S.W.3d 80, 85 (Tex.App.-Houston [1st Dist.] 2006).
49     See City of Weslaco v. Lucio, 2008 WL 5275244, 2008 Tex.App. LEXIS 9540 (Tex.App.-Corpus Christi–Edinburg Dec. 22, 2008);
       City of Waco v. Kelley, 226 S.W.3d 672, 675 (Tex.App.-Waco 2007, pet. granted) (Supreme Court cause number 07–0485); City
       of Laredo v. Leal, 161 S.W.3d 558, 563 (Tex.App.-San Antonio 2004, pet. denied); City of Garland v. Byrd, 97 S.W.3d 601, 607
       (Tex.App.-Dallas 2002, pet. denied); Lindsey v. Fireman's & Policeman's Civil Serv. Comm'n, 980 S.W.2d 233, 236–237 (Tex.App.-
       Houston [14th Dist.] 1998, pet. denied); Nuchia v. Tippy, 973 S.W.2d 782, 786 (Tex.App.-Tyler 1998, no pet.). But see City of
       Houston v. Clark, 252 S.W.3d 561, 567 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (“the district court and [court of appeal] lack
       jurisdiction to review the merits of the hearing examiner's decision, including issues regarding whether the hearing examiner abused
       his discretion and ignored or misinterpreted controlling law”); Bradford v. Pappillion, 207 S.W.3d 841, 844 (Tex.App.-Houston [14th
       Dist.] 2006, no pet.) (“although there is overlap between the scope of the abuse of authority standard and the common meaning of
       the language used in section 143.1016(j), there is little, if any, basis to equate them”).



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           7
City of Pasadena v. Smith, 292 S.W.3d 14 (2009)
29 IER Cases 1087, 52 Tex. Sup. Ct. J. 1171

50     City of Waco, 226 S.W.3d at 675;City of Laredo, 161 S.W.3d at 563;City of Garland, 97 S.W.3d at 607.
51     Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 518 (Tex.1998).
52     TEX. LOC. GOV'T CODE § 143.1016(j); see also § 143.101(a).
53     Id. § 142.015(a).


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

                                                                            Public Employment Relationships
                    105 S.Ct. 1487                                     Public employees having property right in
           Supreme Court of the United States                          continued employment cannot be deprived of
                                                                       that property right by the state without due
 CLEVELAND BOARD OF EDUCATION, Petitioner,                             process. U.S.C.A. Const.Amends. 5, 14.
                    v.
                                                                       706 Cases that cite this headnote
         James LOUDERMILL et al.
   PARMA BOARD OF EDUCATION, Petitioner,
                    v.                                           [2]   Constitutional Law
          Richard DONNELLY et al.                                          Source of right or interest
       James LOUDERMILL, Petitioner,                                   Property interests protected by due process are
                    v.                                                 not created by the Constitution but, rather,
   CLEVELAND BOARD OF EDUCATION et al.                                 are created, and their dimensions defined,
                                                                       by existing rules or understandings that stem
       Nos. 83–1362, 83–1363 and 83–6392. |                            from an independent source such as state law.
   Argued Dec. 3, 1984. | Decided March 19, 1985.                      U.S.C.A. Const.Amends. 5, 14.

Terminated school district employees brought action against            717 Cases that cite this headnote
boards of education challenging propriety of their discharges.
The District Court for the Northern District of Ohio, John       [3]   Constitutional Law
M. Manos, J., dismissed the actions for failure to state                   Procedural due process in general
claims on which relief could be granted, and the Court of
                                                                       Constitutional Law
Appeals affirmed in part and vacated and remanded in part.
                                                                           Substantive Due Process in General
721 F.2d 550. On certiorari, the Supreme Court, Justice
White, held that process due to the terminated employees               As relating to due process clause provision
was pretermination opportunity to respond, coupled with                that substantive rights of life, liberty and
posttermination administrative procedures as provided by               property cannot be deprived except pursuant to
Ohio statute and, because the employees alleged that they              constitutionally adequate procedures, categories
had no chance to respond, their complaints against boards of           of substance and procedure are distinct; once it
education sufficiently stated a claim.                                 is determined that the due process clause applies,
                                                                       question remains what process is due. U.S.C.A.
Judgment of Court of Appeals affirmed; case remanded.                  Const.Amends. 5, 14.

                                                                       511 Cases that cite this headnote
Justice Marshall filed opinion concurring in part and
concurring in judgment.
                                                                 [4]   Constitutional Law
Justice Brennan filed opinion concurring in part and                        Duration and timing of deprivation; pre- or
dissenting in part.                                                    post-deprivation remedies
                                                                       An essential principle of due process is that
Justice Rehnquist filed dissenting opinion.                            a deprivation of life, liberty or property be
                                                                       preceded by notice and opportunity for hearing
Order on remand, 763 F.2d 202.                                         appropriate to the nature of the case. U.S.C.A.
                                                                       Const.Amends. 5, 14.

                                                                       1072 Cases that cite this headnote
 West Headnotes (8)

                                                                 [5]   Constitutional Law
 [1]    Constitutional Law




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

            Notice, hearing, proceedings, and review in
        general
        Due process clause requires some kind of a
                                                                                **1488 *532 Syllabus *
        hearing prior to discharge of employee who has a
        constitutionally protected property interest in his   In No. 83–1362, petitioner Board of Education hired
        employment. U.S.C.A. Const.Amends. 5, 14.             respondent Loudermill as a security guard. On his job
                                                              application Loudermill stated that he had never been
        2101 Cases that cite this headnote
                                                              convicted of a felony. Subsequently, upon discovering
                                                              that he had in fact been convicted of grand larceny,
 [6]    Constitutional Law                                    the Board dismissed him for dishonesty in filling out
            Notice and Hearing                                the job application. He was not afforded an opportunity
        Right to a hearing under the due process clause       to respond to the dishonesty charge or to challenge the
        does not depend on a demonstration of certain         dismissal. Under Ohio law, Loudermill was a “classified
        success. U.S.C.A. Const.Amends. 5, 14.                civil servant,” and by statute, as such an employee, could be
                                                              terminated only for cause and was entitled to administrative
        223 Cases that cite this headnote                     review of the dismissal. He filed an appeal with the
                                                              Civil Service Commission, which, after hearings before a
                                                              referee and the Commission, upheld the dismissal some
 [7]    Constitutional Law
                                                              nine months after the appeal had been filed. Although the
             Notice and hearing; proceedings and
                                                              Commission's decision was subject to review in the state
        review
                                                              courts, Loudermill instead filed suit in Federal District Court,
        Education
                                                              alleging that the Ohio statute providing for administrative
            Pleadings
                                                              review was unconstitutional on its face because it provided no
        Process due to terminated school district             opportunity for a discharged employee to respond to charges
        employees was pretermination opportunity              against him prior to removal, thus depriving him of liberty
        to respond, coupled with posttermination              and property without due process. It was also alleged that
        administrative procedures as provided by Ohio         the statute was unconstitutional as applied because discharged
        statute and, because the employees alleged that       employees were not given sufficiently prompt postremoval
        they had no chance to respond, their complaints       hearings. The District Court dismissed the suit for failure
        against boards of education sufficiently stated       to state a claim on which relief could be granted, holding
        a claim. Ohio R.C. § 124.34; U.S.C.A.                 that because the very statute that created the property right
        Const.Amends. 5, 14.                                  in continued employment also specified the procedures for
                                                              discharge, and because those procedures were followed,
        2236 Cases that cite this headnote
                                                              Loudermill was, by definition, afforded all the process due;
                                                              that the post-termination hearings also adequately protected
 [8]    Education                                             Loudermill's property interest; and that in light of the
            Pleadings                                         Commission's crowded docket the delay in processing his
        Former school district employee's complaint           appeal was constitutionally acceptable. In No. 83–1363,
        reciting course of proceedings regarding his          petitioner Board of Education fired respondent Donnelly from
        termination but which did not indicate that           his job as a bus mechanic because he had *533 failed an eye
        his wait for conclusion of the proceedings            examination. He appealed to the Civil Service Commission,
        was unreasonably prolonged other than the             which ordered him reinstated, but without backpay. He
        fact that it took nine months failed to state a       then filed a complaint in Federal District Court essentially
        claim of a constitutional deprivation. U.S.C.A.       identical to Loudermill's, and the court dismissed for failure
        Const.Amends. 5, 14.                                  to state a claim. On a **1489 consolidated appeal, the
                                                              Court of Appeals reversed in part and remanded, holding
        71 Cases that cite this headnote                      that both respondents had been deprived of due process and
                                                              that the compelling private interest in retaining employment,
                                                              combined with the value of presenting evidence prior to


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

dismissal, outweighed the added administrative burden of          721 F.2d 550 (6 Cir.1983), affirmed and remanded.
a pretermination hearing. But with regard to the alleged
deprivation of liberty and Loudermill's 9-month wait for an
administrative decision, the court affirmed the District Court,   Attorneys and Law Firms
finding no constitutional violation.
                                                                  James G. Wyman argued the cause for petitioners in Nos.
                                                                  83-1362 and 83-1363 and respondents in No. 83-6392. With
Held: All the process that is due is provided by
                                                                  him on the brief for petitioner in No. 83-1362 was Thomas
a pretermination opportunity to respond, coupled with
                                                                  C. Simiele. John F. Lewis and John T. Meredith filed a brief
posttermination administrative procedures as provided by the
                                                                  for petitioner in No. 83-1363. John D. Maddox and Stuart
Ohio statute; since respondents alleged that they had no
                                                                  A. Freidman filed a brief for respondents Cleveland Civil
chance to respond, the District Court erred in dismissing their
                                                                  Service Commission et al. in No. 83-6392.
complaints for failure to state a claim. Pp. 1491–1496.
                                                                  Robert M. Fertel, by appointment of the Court, 468 U.S.
(a) The Ohio statute plainly supports the conclusion              1203, argued the cause and filed briefs for respondents in Nos.
that respondents possess property rights in continued             83-1362 and 83-1363 and petitioner in No. 83-6392.†
employment. The Due Process Clause provides that the
substantive rights of life, liberty, and property cannot          † Briefs of amici curiae urging reversal in Nos. 83-1362 and
be deprived except pursuant to constitutionally adequate          83-1363 were filed for the State of Ohio et al. by Anthony J.
procedures. The categories of substance and procedure are         Celebrezze, Jr., Attorney General of Ohio, Gene W. Holliker
distinct. “Property” cannot be defined by the procedures          and Christine Manuelian, Assistant Attorneys General,
provided for its deprivation. Pp. 1491–1493.                      Charles A. Graddick, Attorney General of Alabama, Robert
                                                                  K. Corbin, Attorney General of Arizona, Tany S. Hong,
(b) The principle that under the Due Process Clause an            Attorney General of Hawaii, Lindley E. Pearson, Attorney
individual must be given an opportunity for a hearing             General of Indiana, Robert T. Stephen, Attorney General
before he is deprived of any significant property interest,       of Kansas, Frank J. Kelley, Attorney General of Michigan,
requires “some kind of hearing” prior to the discharge of         Hubert H. Humphrey III, Attorney General of Minnesota,
an employee who has a constitutionally protected property         William A. Allain, Attorney General of Mississippi, Michael
interest in his employment. The need for some form of             T. Greely, Attorney General of Montana, Brian McKay,
pretermination hearing is evident from a balancing of the         Attorney General of Nevada, Gregory H. Smith, Attorney
competing interests at stake: the private interest in retaining   General of New Hampshire, Irwin I. Kimmelman, Attorney
employment, the governmental interests in expeditious             General of New Jersey, Robert WeFald, Attorney General
removal of unsatisfactory employees and the avoidance             of North Dakota, Michael Turpen, Attorney General of
of administrative burdens, and the risk of an erroneous           Oklahoma, David Frohnmayer, Attorney General of Oregon,
termination. Pp. 1493–1495.                                       LeRoy S. Zimmerman, Attorney General of Pennsylvania,
                                                                  Mark V. Meierhenry, Attorney General of South Dakota,
(c) The pretermination hearing need not definitively resolve      Bronson C. La Follette, Attorney General of Wisconsin, and
the propriety of the discharge, but should be an initial check    Archie G. McClintock, Attorney General of Wyoming; and
against mistaken decisions—essentially a determination of         for the National School Boards Association by Gwendolyn H.
whether there are reasonable grounds to believe that the          Gregory and August W. Steinhilber.
charges against the employee are true and support the
                                                                  Briefs of amici curiae urging affirmance in Nos. 83-1362 and
proposed action. The essential requirements of due process
                                                                  83-1363 were filed for the American Civil Liberties Union of
are notice and an opportunity to respond. Pp. 1495–1496.
                                                                  Cleveland Foundation by Gordon J. Beggs, Edward R. Stege,
                                                                  Jr., and Charles S. Sims; for the American Federation of State,
(d) The delay in Loudermill's administrative proceedings did
                                                                  County, and Municipal Employees, AFL-CIO, by Richard
not constitute a separate constitutional violation. The Due
                                                                  Kirschner; and for the National Educational Association by
Process Clause *534 requires provision of a hearing “at a
                                                                  Robert H. Chanin and Michael H. Gottesman.
meaningful time,” and here the delay stemmed in part from
the thoroughness of the procedures. P. 1496.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

                                                                 as applied because discharged employees were not given
Opinion                                                          sufficiently prompt postremoval hearings.

*535 Justice WHITE delivered the opinion of the Court.
                                                                 Before a responsive pleading was filed, the District Court
In these cases we consider what pretermination process must      dismissed for failure to state a claim on which relief could
be accorded a public employee who can be discharged only         be granted. See Fed.Rule Civ.Proc. 12(b)(6). It held that
for cause.                                                       because the very statute that created the property right in
                                                                 continued employment also specified the procedures for
                                                                 discharge, and because those procedures were followed,
                                                                 Loudermill was, by definition, afforded all the process
                              I                                  due. The post-termination hearing also adequately protected
                                                                 Loudermill's liberty interests. Finally, the District Court
In 1979 the Cleveland Board of Education, petitioner in No.
                                                                 concluded that, in light of the Commission's crowded docket,
83–1362, hired respondent James Loudermill as a security
                                                                 the delay in processing Loudermill's administrative appeal
guard. On his job application, Loudermill stated that he had
                                                                 was constitutionally acceptable. App. to Pet. for Cert. in No.
never been convicted of a felony. Eleven months later, as
                                                                 83–1362, pp. A36–A42.
part of a routine examination of his employment records, the
Board discovered that in fact Loudermill had been convicted
                                                                 The other case before us arises on similar facts and followed
of grand larceny in 1968. By letter dated November 3, 1980,
                                                                 a similar course. Respondent Richard Donnelly was a bus
the Board's Business Manager informed Loudermill that he
                                                                 mechanic for the Parma Board of Education. In August 1977,
had been dismissed because of his dishonesty in filling out
                                                                 Donnelly was fired because he had failed an eye examination.
the employment application. Loudermill was not afforded
                                                                 He was offered a chance to retake the examination but
an opportunity to respond to the charge of dishonesty or to
                                                                 did not do so. Like Loudermill, Donnelly appealed to
 **1490 challenge his dismissal. On November 13, the Board
                                                                 the Civil Service Commission. After a year of wrangling
adopted a resolution officially approving the discharge.
                                                                 about the timeliness of his appeal, the Commission heard
                                                                  *537 the case. It ordered Donnelly reinstated, though
Under Ohio law, Loudermill was a “classified civil servant.”
Ohio Rev.Code Ann. § 124.11 (1984). Such employees can           without backpay. 1 In a complaint essentially identical to
be terminated only for cause, and may obtain administrative      Loudermill's, Donnelly challenged the constitutionality of the
review if discharged. § 124.34. Pursuant to this provision,      dismissal procedures. The District Court dismissed for failure
Loudermill filed an appeal with the Cleveland Civil Service      to state a claim, relying on its opinion in Loudermill.
Commission on November 12. The Commission appointed a
referee, who held a hearing on January 29, 1981. Loudermill      The District Court denied a joint motion to alter or amend
argued that he had thought that his 1968 larceny conviction      its judgment, 2 and the **1491 cases were consolidated
was for a misdemeanor rather than a felony. The referee          for appeal. A divided panel of the Court of Appeals for
recommended reinstatement. On July 20, 1981, the *536            the Sixth Circuit reversed in part and remanded. 721 F.2d
full Commission heard argument and orally announced that         550 (1983). After rejecting arguments that the actions were
it would uphold the dismissal. Proposed findings of fact and     barred by failure to exhaust administrative remedies and by
conclusions of law followed on August 10, and Loudermill's       res judicata—arguments that are not renewed here—the Court
attorneys were advised of the result by mail on August 21.       of Appeals found that both respondents had been deprived
                                                                 of due process. It disagreed with the District Court's original
Although the Commission's decision was subject to judicial       rationale. Instead, it concluded that the compelling private
review in the state courts, Loudermill instead brought the       interest in retaining employment, combined with the value
present suit in the Federal District Court for the Northern      of presenting evidence prior to dismissal, outweighed the
District of Ohio. The complaint alleged that § 124.34 was        added administrative burden of a pretermination hearing. Id.,
unconstitutional on its face because it did not provide the      at 561–562. With regard to the alleged deprivation of liberty,
employee an opportunity to respond to the charges against        and Loudermill's 9-month wait for an administrative decision,
him prior to removal. As a result, discharged employees were     the court affirmed the District Court, finding no constitutional
deprived of liberty and property without due process. The        violation. Id., at 563–564.
complaint also alleged that the provision was unconstitutional



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

 *538 The dissenting Judge argued that respondents'                 83–1363, pp. 26–27. The Board stresses that in addition
property interests were conditioned by the procedural               to specifying the grounds for termination, the statute sets
limitations accompanying the grant thereof. He considered           out procedures by which termination may take place. 6 The
constitutional requirements satisfied because there was a            *540 procedures were adhered to in these cases. According
reliable pretermination finding of “cause,” coupled with a due      to petitioner, “[t]o require additional procedures would in
process hearing at a meaningful time and in a meaningful            effect expand the scope of the property interest itself.” Id., at
manner. Id., at 566.                                                27. See also Brief for State of Ohio et al. as Amici Curiae 5–
                                                                    10.
Both employers petitioned for certiorari. Nos. 83–1362 and
83–1363. In a cross-petition, Loudermill sought review of the       This argument, which was accepted by the District Court,
rulings adverse to him. No. 83–6392. We granted all three           has its genesis in the plurality opinion in Arnett v. Kennedy,
petitions, 467 U.S. 1204, 104 S.Ct. 2384, 81 L.Ed.2d 343            416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Arnett
(1984), and now affirm in all respects.                             involved a challenge by a former federal employee to
                                                                    the procedures by which he was dismissed. The plurality
                                                                    reasoned that where the legislation conferring the substantive
                               II                                   right also sets out the procedural mechanism for enforcing
                                                                    that right, the two cannot be separated:
[1]    Respondents' federal constitutional claim depends on
                                                                                 “The employee's statutorily defined
their having had a property right in continued employment. 3
                                                                                 right is not a guarantee against removal
Board of Regents v. Roth, 408 U.S. 564, 576–578, 92 S.Ct.
                                                                                 without cause in the abstract, but
2701, 2708–2709, 33 L.Ed.2d 548 (1972); Reagan v. United
                                                                                 such a guarantee as enforced by
States, 182 U.S. 419, 425, 21 S.Ct. 842, 845, 45 L.Ed. 1162
                                                                                 the procedures which Congress has
(1901). If they did, the State could not deprive them of this
                                                                                 designated for the determination of
property without due process. See Memphis Light, Gas &
                                                                                 cause.
Water Div. v. Craft, 436 U.S. 1, 11–12, 98 S.Ct. 1554, 1561–
1562, 56 L.Ed.2d 30 (1978); Goss v. Lopez, 419 U.S. 565,
573–574, 95 S.Ct. 729, 735–736, 42 L.Ed.2d 725 (1975).
                                                                      “[W]here the grant of a substantive right is inextricably
                                                                      intertwined with the limitations on the procedures which
 [2] Property interests are not created by the Constitution,
                                                                      are to be employed in determining that right, a litigant in
“they are created and their dimensions are defined by existing
                                                                      the position of appellee must take the bitter with the sweet.”
rules or understandings that stem from an independent source
                                                                      Id., at 152–154, 94 S.Ct., at 1643–1644.
such as state law....” Board of Regents v. Roth, supra, 408
U.S., at 577, 92 S.Ct., at 2709. See also Paul v. Davis,
                                                                    This view garnered three votes in Arnett, but was specifically
424 U.S. 693, 709, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405
                                                                    rejected by the other six Justices. See id., at 166–167, 94
(1976). The Ohio statute plainly creates such an interest.
                                                                    S.Ct., at 1650–1651 (POWELL, J., joined by BLACKMUN,
Respondents were “classified civil service employees,” Ohio
                                                                    J.,); id., at 177–178, 185, 94 S.Ct., at 1655–1656 (WHITE,
Rev.Code Ann. § 124.11 (1984), entitled to retain their
                                                                    J.,); id., at 211, 94 S.Ct., at 1672 (MARSHALL, J., joined
positions “during good behavior and efficient service,” who
                                                                    by Douglas and BRENNAN, JJ.). Since then, this theory
could not be dismissed “except ... for ... misfeasance, *539
                                                                    has at times seemed to gather some additional support. See
malfeasance, or nonfeasance in office,” § 124.34. 4 The             Bishop v. Wood, 426 U.S. 341, 355–361, 96 S.Ct. 2074, 2082–
statute plainly supports the conclusion, reached by both            2085, 48 L.Ed.2d 684 (1976) (WHITE, J., dissenting); Goss v.
lower courts, that respondents possessed property rights in         Lopez, 419 U.S., at 586–587, 95 S.Ct., at 742–743 (POWELL,
continued employment. Indeed, this question does not seem           J., joined *541 by BURGER, C.J., and BLACKMUN and
to have been disputed below. 5                                      REHNQUIST, JJ., dissenting). More recently, however, the
                                                                    Court has clearly rejected it. In Vitek v. Jones, 445 U.S.
 **1492 The Parma Board argues, however, that the property          480, 491, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980), we
right is defined by, and conditioned on, the legislature's choice   pointed out that “minimum [procedural] requirements [are] a
of procedures for its deprivation. Brief for Petitioner in No.      matter of federal law, they are not diminished by the fact that



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

the State may have specified its own procedures that it may        see Bell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586,
deem adequate for determining the preconditions to adverse         1591, 29 L.Ed.2d 90 (1971). This principle requires “some
official action.” This conclusion was reiterated in Logan v.       kind of a hearing” prior to the discharge of an employee
Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148,            who has a constitutionally protected property interest in his
1155, 71 L.Ed.2d 265 (1982), where we reversed the lower           employment. Board of Regents v. Roth, 408 U.S., at 569–570,
court's holding that because the entitlement arose from a state    92 S.Ct., at 2705; Perry v. Sindermann, 408 U.S. 593, 599, 92
statute, the legislature had **1493 the prerogative to define      S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972). As we pointed out
the procedures to be followed to protect that entitlement.         last Term, this rule has been settled for some time now. Davis
                                                                   v. Scherer, 468 U.S. 183, 192, n. 10, 104 S.Ct. 3012, 3018,
 [3] In light of these holdings, it is settled that the “bitter    n. 10, 82 L.Ed.2d 139 (1984); id., at 200–203, 104 S.Ct., at
with the sweet” approach misconceives the constitutional           3022–3024 (BRENNAN, J., concurring in part and dissenting
guarantee. If a clearer holding is needed, we provide it today.    in part). Even decisions finding no constitutional violation in
The point is straightforward: the Due Process Clause provides      termination procedures have relied on the existence of some
that certain substantive rights—life, liberty, and property        pretermination opportunity to respond. For example, in Arnett
—cannot be deprived except pursuant to constitutionally            six Justices found constitutional minima satisfied where the
adequate procedures. The categories of substance and               employee had access to the material upon which the charge
procedure are distinct. Were the rule otherwise, the Clause        was based and could respond orally and in writing and present
would be reduced to a mere tautology. “Property” cannot            rebuttal affidavits. See also Barry v. Barchi, 443 U.S. 55, 65,
be defined by the procedures provided for its deprivation          99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979) (no due process
any more than can life or liberty. The right to due process        violation where horse trainer whose license was suspended
“is conferred, not by legislative grace, but by constitutional     “was given more than one opportunity to present his side of
guarantee. While the legislature may elect not to confer           the story”).
a property interest in [public] employment, it may not
constitutionally authorize the deprivation of such an interest,    The need for some form of pretermination hearing,
once conferred, without appropriate procedural safeguards.”        recognized in these cases, is evident from a balancing of the
Arnett v. Kennedy, supra, 416 U.S., at 167, 94 S.Ct., at 1650      competing interests at stake. These are the private interests
(POWELL, J., concurring in part and concurring in result in        in *543 retaining employment, the governmental interest
part); see id., at 185, 94 S.Ct., at 1659 (WHITE, J., concurring   in the expeditious removal of unsatisfactory employees and
in part and dissenting in part).                                   the avoidance of administrative burdens, and the risk of an
                                                                   erroneous termination. **1494 See Mathews v. Eldridge,
In short, once it is determined that the Due Process               424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
Clause applies, “the question remains what process is due.”
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600,     First, the significance of the private interest in retaining
33 L.Ed.2d 484 (1972). The answer to that question is not to     employment cannot be gainsaid. We have frequently
be found in the Ohio statute.                                    recognized the severity of depriving a person of the means
                                                                 of livelihood. See Fusari v. Steinberg, 419 U.S. 379, 389,
                                                                 95 S.Ct. 533, 539, 42 L.Ed.2d 521 (1975); Bell v. Burson,
                                                                 supra, 402 U.S., at 539, 91 S.Ct., at 1589; Goldberg v. Kelly,
                             *542 III
                                                                 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287
 [4]    [5] An essential principle of due process is that a (1970); Sniadach v. Family Finance Corp., 395 U.S. 337,
deprivation of life, liberty, or property “be preceded by notice 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969). While
and opportunity for hearing appropriate to the nature of the     a fired worker may find employment elsewhere, doing so
case.” Mullane v. Central Hanover Bank & Trust Co., 339          will take some time and is likely to be burdened by the
U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). We        questionable circumstances under which he left his previous
have described “the root requirement” of the Due Process         job. See Lefkowitz v. Turley, 414 U.S. 70, 83–84, 94 S.Ct. 316,
Clause as being “that an individual be given an opportunity      325–326, 38 L.Ed.2d 274 (1973).
for a hearing before he is deprived of any significant property
                                                                 Second, some opportunity for the employee to present his
interest.” 7 Boddie v. Connecticut, 401 U.S. 371, 379, 91
                                                                 side of the case is recurringly of obvious value in reaching
S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (emphasis in original);


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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

an accurate decision. Dismissals for cause will often involve      [7]     The foregoing considerations indicate that the
factual disputes. Cf. Califano v. Yamasaki, 442 U.S. 682, 686,    pretermination “hearing,” though necessary, need not be
99 S.Ct. 2545, 2550, 61 L.Ed.2d 176 (1979). Even where            elaborate. We have pointed out that “[t]he formality and
the facts are clear, the appropriateness or necessity of the      procedural requisites for the hearing can vary, depending
discharge may not be; in such cases, the only meaningful          upon the importance of the interests involved and the nature
opportunity to invoke the discretion of the decisionmaker is      of the subsequent proceedings.” Boddie v. Connecticut, 401
likely to be before the termination takes effect. See Goss v.     U.S., at 378, 91 S.Ct., at 786. See Cafeteria Workers v.
Lopez, 419 U.S., at 583–584, 95 S.Ct., at 740–741; Gagnon v.      McElroy, 367 U.S. 886, 894–895, 81 S.Ct. 1743, 1748,
Scarpelli, 411 U.S. 778, 784–786, 93 S.Ct. 1756, 1760–1761,       6 L.Ed.2d 1230 (1961). In general, “something less” than
36 L.Ed.2d 656 (1973). 8                                          a full evidentiary hearing is sufficient prior to adverse
                                                                  administrative action. Mathews v. Eldridge, 424 U.S., at
 [6]     *544 The cases before us illustrate these                343, 96 S.Ct., at 907. Under state law, respondents were later
considerations. Both respondents had plausible arguments to       entitled to a full administrative hearing and judicial review.
make that might have prevented their discharge. The fact          The only question is what steps were required before the
that the Commission saw fit to reinstate Donnelly suggests        termination took effect.
that an error might have been avoided had he been provided
an opportunity to make his case to the Board. As for              In only one case, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct.
Loudermill, given the Commission's ruling we cannot say           1011, 25 L.Ed.2d 287 (1970), has the Court required a full
that the discharge was mistaken. Nonetheless, in light of         adversarial evidentiary hearing prior to adverse governmental
the referee's recommendation, neither can we say that a           action. However, as the Goldberg Court itself pointed out, see
fully informed decisionmaker might not have exercised its         id., at 264, 90 S.Ct., at 1018, that case presented significantly
discretion and decided not to dismiss him, notwithstanding        different considerations than are present in the context of
its authority to do so. In any event, the termination involved    public employment. Here, the pretermination hearing need
                                                                  not definitively resolve the propriety of the discharge. It
arguable issues, 9 and the right to a hearing does not depend
                                                                  should be an initial check against mistaken decisions—
on a demonstration of certain success. Carey v. Piphus, 435
                                                                  essentially, a determination of whether *546 there are
U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978).
                                                                  reasonable grounds to believe that the charges against the
                                                                  employee are true and support the proposed action. See Bell
The governmental interest in immediate termination does
                                                                  v. Burson, 402 U.S., at 540, 91 S.Ct., at 1590.
not outweigh these interests. As we shall explain, affording
the employee an opportunity to respond prior to termination
                                                                  The essential requirements of due process, and all that
would impose neither a significant administrative burden
                                                                  respondents seek or the Court of Appeals required, are notice
nor intolerable delays. Furthermore, the employer shares
                                                                  and an opportunity to respond. The opportunity to present
the employee's interest in avoiding disruption and erroneous
                                                                  reasons, either in person or in writing, why proposed action
decisions; and until the matter is settled, the employer would
                                                                  should not be taken is a fundamental due process requirement.
continue to receive the benefit of the employee's labors. It is
                                                                  See Friendly, “Some Kind of Hearing,” 123 U.Pa.L.Rev.
preferable to keep **1495 a qualified employee on than to
                                                                  1267, 1281 (1975). The tenured public employee is entitled
train a new one. A governmental employer also has an interest
                                                                  to oral or written notice of the charges against him, an
in keeping citizens usefully employed rather than taking the
                                                                  explanation of the employer's evidence, and an opportunity to
possibly erroneous and counterproductive step of forcing its
                                                                  present his side of the story. See Arnett v. Kennedy, 416 U.S.,
employees onto the welfare rolls. Finally, in those situations
                                                                  at 170–171, 94 S.Ct., at 1652–1653 (opinion of POWELL, J.);
where the employer perceives a significant hazard in *545
                                                                  id., at 195–196, 94 S.Ct., at 1664–1665 (opinion of WHITE,
keeping the employee on the job, 10 it can avoid the problem      J.); see also Goss v. Lopez, 419 U.S., at 581, 95 S.Ct., at 740.
by suspending with pay.                                           To require more than this prior to termination would intrude to
                                                                  an unwarranted extent on the government's interest in quickly
                                                                  removing an unsatisfactory employee.
                              IV




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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

                                                                   procedures the legislature chooses. I therefore join Part
                                                                   II of the opinion for the Court. I also agree that, before
                              V
                                                                   discharge, the respondent employees were entitled to the
 [8] Our holding rests in part on the provisions in Ohio           opportunity to respond to the charges against them (which
law for a full post-termination hearing. In his cross-petition     is all they requested), and that the failure to accord them
Loudermill asserts, as a separate constitutional violation, that   that opportunity was a violation of their constitutional rights.
                                                                   Because the Court holds that the respondents were due all the
his administrative proceedings took too long. 11 The Court
                                                                   process they requested, I concur in the judgment of the Court.
of *547 **1496 Appeals held otherwise, and we agree. 12
The Due Process Clause requires provision of a hearing “at a       I write separately, however, to reaffirm my belief that public
meaningful time.” E.g., Armstrong v. Manzo, 380 U.S. 545,          employees who may be discharged only for cause are entitled,
552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). At some            under the Due Process Clause of the Fourteenth Amendment,
point, a delay in the post-termination hearing would become a      to more than respondents **1497 sought in this case. I
constitutional violation. See Barry v. Barchi, 443 U.S., at 66,    continue to believe that before the decision is made to
99 S.Ct., at 2650. In the present case, however, the complaint     terminate an employee's wages, the employee is entitled
merely recites the course of proceedings and concludes that        to an opportunity to test the strength of the evidence “by
the denial of a “speedy resolution” violated due process.          confronting and cross-examining adverse witnesses and by
App. 10. This reveals nothing about the delay except that it       presenting witnesses on his own behalf, whenever there
stemmed in part from the thoroughness of the procedures.           are substantial disputes in testimonial evidence,” Arnett v.
A 9-month adjudication is not, of course, unconstitutionally       Kennedy, 416 U.S. 134, 214, 94 S.Ct. 1633, 1674, 40 L.Ed.2d
lengthy per se. Yet Loudermill offers no indication that his       15 (1974) (MARSHALL, J., dissenting). Because the Court
wait was unreasonably prolonged other than the fact that it        suggests that even in this situation due process requires no
took nine months. The chronology of the proceedings set out        more than notice and an opportunity to be heard before wages
in the complaint, coupled with the assertion that nine months      are cut off, I am not able to join the Court's opinion in its
is too long to wait, does not state a claim of a constitutional    entirety.
deprivation. 13
                                                                    *549 To my mind, the disruption caused by a loss of wages
                                                                   may be so devastating to an employee that, whenever there
                                                                   are substantial disputes about the evidence, additional pre-
                              VI
                                                                   deprivation procedures are necessary to minimize the risk
We conclude that all the process that is due is provided by        of an erroneous termination. That is, I place significantly
a pretermination opportunity to respond, coupled with post-        greater weight than does the Court on the public employee's
termination *548 administrative procedures as provided             substantial interest in the accuracy of the pretermination
by the Ohio statute. Because respondents allege in their           proceeding. After wage termination, the employee often must
complaints that they had no chance to respond, the District        wait months before his case is finally resolved, during which
Court erred in dismissing for failure to state a claim. The        time he is without wages from his public employment. By
judgment of the Court of Appeals is affirmed, and the case         limiting the procedures due prior to termination of wages, the
is remanded for further proceedings consistent with this           Court accepts an impermissibly high risk that a wrongfully
opinion.                                                           discharged employee will be subjected to this often lengthy
                                                                   wait for vindication, and to the attendant and often traumatic
So ordered.                                                        disruptions to his personal and economic life.

                                                                   Considerable amounts of time may pass between the
Justice MARSHALL, concurring in part and concurring in the         termination of wages and the decision in a post-termination
judgment.                                                          evidentiary hearing—indeed, in this case nine months
I agree wholeheartedly with the Court's express rejection of       passed before Loudermill received a decision from his
the theory of due process, urged upon us by the petitioner         postdeprivation hearing. During this period the employee is
Boards of Education, that a public employee who may be             left in limbo, deprived of his livelihood and of wages on
discharged only for cause may be discharged by whatever            which he may well depend for basic sustenance. In that time,



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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

his ability to secure another job might be hindered, either       the termination of wages, then this minimal pre-deprivation
because of the nature of the charges against him, or because of    *551 process might suffice. But there is no such guarantee.
the prospect that he will return to his prior public employment   On a practical level, if the employer had to pay the employee
if permitted. Similarly, his access to unemployment benefits      until the end of the proceeding, the employer obviously would
might seriously be constrained, because many States deny          have an incentive to resolve the issue expeditiously. The
unemployment compensation to workers discharged for               employer loses this incentive if the only suffering as a result of
cause. * Absent an interim source of wages, the employee          the delay is borne by the wage earner, who eagerly awaits the
might be unable to meet his basic, fixed costs, such as food,     decision on his livelihood. Nor has this Court grounded any
rent or mortgage payments. He would be forced to spend his        guarantee of this kind in the Constitution. Indeed, this Court
savings, if he had any, and to convert his possessions to *550    has in the past approved, at least implicitly, an average 10 or
cash before becoming eligible for public assistance. Even in      11-month delay in the receipt of a decision on Social Security
that instance                                                     benefits, Mathews v. Eldridge, 424 U.S. 319, 341–342, 96
                                                                  S.Ct. 893, 905–906, 47 L.Ed.2d 18 (1976), and, in the case of
                                                                  respondent Loudermill, the Court gives a stamp of approval
   “[t]he substitution of a meager welfare grant for a regular    to a process that took nine months. The hardship inevitably
   paycheck may bring with it painful and irremediable            increases as the days go by, but nevertheless the Court
   personal as well as financial dislocations. A child's          countenances such delay. The adequacy of the predeprivation
   education may be interrupted, a family's home lost, a          and postdeprivation procedures are inevitably intertwined,
   person's relationship with his friends and even his family     and only a constitutional guarantee that the latter will be
   may be irrevocably affected. The costs of being forced,        immediate and complete might alleviate my concern about
   even temporarily, onto the welfare rolls because of a          the possibility of a wrongful termination of wages.
   wrongful discharge from tenured Government employment
   cannot be so easily discounted,” id., at 221, 94 S.Ct., at     The opinion for the Court does not confront this reality. I
   1677.                                                          cannot and will not close my eyes today—as I could not 10
Moreover, it is in no respect certain that a                      years ago—to the economic situation of great numbers of
prompt postdeprivation hearing will make the employee             public employees, and to the potentially traumatic effect of a
economically whole again, and the wrongfully discharged           wrongful discharge on a working person. Given that so very
employee will almost inevitably suffer irreparable injury.        much is at stake, I am unable to accept the Court's narrow
Even if reinstatement is forthcoming, the same might not be       view of the process due to a public employee before his wages
true of back-pay—as it was not to respondent Donnelly in          are terminated, and before he begins the long wait for a public
this case—and the delay in receipt of wages would thereby be      agency to issue a final decision in his case.
transformed into a permanent deprivation. Of perhaps equal
concern, the personal trauma experienced during the long
months in which the employee awaits decision, during which        Justice BRENNAN, concurring in part and dissenting in part.
he suffers doubt, humiliation, and the loss of an opportunity     Today the Court puts to rest any remaining debate over
to perform work, will never be recompensed, and indeed            whether public employers must provide meaningful notice
probably could not be with dollars alone.                         and hearing procedures before discharging an employee for
                                                                   *552 cause. As the Court convincingly demonstrates, the
 **1498 That these disruptions might fall upon a justifiably      employee's right to fair notice and an opportunity to “present
discharged employee is unfortunate; that they might fall upon     his side of the story” before discharge is not a matter of
a wrongfully discharged employee is simply unacceptable.          legislative grace, but of “constitutional guarantee.” Ante, at
Yet in requiring only that the employee have an opportunity       1493, 1495. This principle, reaffirmed by the Court today, has
to respond before his wages are cut off, without affording        been clearly discernible in our “repeated pronouncements”
him any meaningful chance to present a defense, the Court         for many years. See Davis v. Scherer, 468 U.S. 183, 203, 104
is willing to accept an impermissibly high risk of error with     S.Ct. 3012, 3023, 82 L.Ed.2d 139 (1984) (BRENNAN, J.,
respect to a deprivation that is substantial.                     concurring in part and dissenting in part).


Were there any guarantee that the post-deprivation hearing        Accordingly, I concur in Parts I–IV of the Court's opinion.
and ruling would occur promptly, such as within a few days of     I write separately to comment on two issues the Court does



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               9
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

not resolve today, and to explain my dissent from the result      to discharges based on disputed evidence or testimony. I
in Part V of the Court's opinion.                                 therefore join Parts I–IV of the Court's opinion.



                              I                                                                  II

First, the Court today does not prescribe the precise             The second issue not resolved today is that of administrative
form of required pretermination procedures in cases where         delay. In holding that Loudermill's administrative
an employee disputes the facts proffered to support his           proceedings did not take too long, the Court plainly does not
discharge. The cases at hand involve, as the Court                state a flat rule that 9-month delays in deciding discharge
recognizes, employees who did not dispute the facts but           appeals will pass constitutional scrutiny as a matter of
had “plausible arguments to make that might have prevented        course. To the contrary, the Court notes that a full post-
their discharge.” Ante, at 1494. In such cases, notice and an     termination hearing and decision must be provided at “a
“opportunity to present reasons,” ante, at 1495, are sufficient   meaningful time” and that “[a]t some point, a delay in
to protect the important interests at stake.                      the post-termination hearing would become a constitutional
                                                                  violation.” Ante, at 1496. For example, in Barry v. Barchi,
 **1499 As the Court also correctly notes, other cases            443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979),
“will often involve factual disputes,” ante, at 1494, such as     we disapproved as “constitutionally infirm” the shorter
allegedly erroneous records or false accusations. As Justice      administrative delays that resulted under a statute that
MARSHALL has previously noted and stresses again today,           required “prompt” postsuspension hearings for suspended
ante at 1497, where there exist not just plausible arguments      racehorse trainers with decision to follow within 30 days
to be made, but also “substantial disputes in testimonial         of the hearing. Id., at 61, 66, 99 S.Ct., at 2647, 2650.
evidence,” due process may well require more than a simple        As Justice MARSHALL demonstrates, when an employee's
opportunity to argue or deny. Arnett v. Kennedy, 416 U.S.         wages are terminated pending *554 administrative decision,
134, 214, 94 S.Ct. 1633, 1674, 40 L.Ed.2d 15 (1974)               “hardship inevitably increases as the days go by.” Ante, at
(MARSHALL, J., dissenting). The Court acknowledges that           1498; see also Arnett v. Kennedy, supra, 416 U.S., at 194, 94
what the Constitution requires prior to discharge, in general     S.Ct., at 1664 (WHITE, J., concurring in part and dissenting
terms, is pretermination procedures sufficient to provide         in part) (“The impact on the employee of being without
“an initial check against mistaken decisions—essentially, a       a job pending a full hearing is likely to be considerable
determination of whether there are reasonable grounds to          because ‘[m]ore than 75 percent of actions contested within
believe *553 that the charges against the employee are true       employing agencies require longer to decide than the 60 days
and support the proposed action.” Ante, at 1495 (emphasis         required by ... regulations' ”) (citation omitted). In such cases
added). When factual disputes are involved, therefore, an         the Constitution itself draws a line, as the Court declares,
employee may deserve a fair opportunity before discharge to       “at some point” beyond which the State may not continue a
produce contrary records or testimony, or even to confront an     deprivation absent decision. 1 The holding in Part V is merely
accuser in front of the decisionmaker. Such an opportunity        that, in this particular case, Loudermill failed to allege facts
might not necessitate “elaborate” procedures, see ante, at        sufficient **1500 to state a cause of action, and not that nine
1495, but the fact remains that in some cases only such           months can never exceed constitutional limits.
an opportunity to challenge the source or produce contrary
evidence will suffice to support a finding that there are
“reasonable grounds” to believe accusations are “true.”
                                                                                                III
Factual disputes are not involved in these cases, however,
                                                                  Recognizing the limited scope of the holding in Part V, I must
and the “very nature of due process negates any concept
                                                                  still dissent from its result, because the record in this case
of inflexible procedures universally applicable to every
                                                                  is insufficiently developed to permit an informed judgment
imaginable situation.” Cafeteria Workers v. McElroy, 367
                                                                  on the issue of overlong delay. Loudermill's complaint was
U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961).
                                                                  dismissed without answer from the respondent Cleveland
I do not understand Part IV to foreclose the views expressed
                                                                  Civil Service Commission. Allegations at this early stage
above or by Justice MARSHALL, ante, p. 1497, with respect
                                                                  are to be liberally construed, and “[i]t is axiomatic that a


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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

complaint should not be dismissed unless ‘it appears beyond        Thus the constitutional analysis of delay requires some
doubt that the plaintiff can prove no set of facts in support      development of the relevant factual context when a plaintiff
of his claim which would entitle him to relief.’ ” McLain v.       alleges, as Loudermill has, that the administrative process
Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246,           has taken longer than some minimal amount of time. Indeed,
100 S.Ct. 502, 511, 62 L.Ed.2d 441 (1980) (citation omitted).      all of our precedents that have considered administrative
Loudermill alleged that it took the Commission over two            delays under the Due Process Clause, either explicitly or
and one-half months simply to hold *555 a hearing in his           sub silentio, have been decided only after more complete
case, over two months more to issue a non-binding interim          proceedings in the District Courts. See, e.g., $8,850, supra;
decision, and more than three and one-half months after            Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d
that to deliver a final decision. Complaint ¶¶ 20, 21, App.        365 (1979); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633,
10. 2 The Commission provided no explanation for these             40 L.Ed.2d 15 (1974); Mathews v. Eldridge, supra. 4 Yet in
significant gaps in the administrative process; we do not know     Part V, the Court summarily holds Loudermill's allegations
if they were due to an overabundance of appeals, Loudermill's       *558 insufficient, without adverting to any considered
own foot-dragging, bad faith on the part of the Commission,        balancing of interests. Disposal of Loudermill's complaint
or any other of a variety of reasons that might affect our         without examining the competing interests involved marks an
analysis. We do know, however, that under Ohio law the             unexplained departure from the careful multifaceted analysis
Commission is obligated to hear appeals like Loudermill's          of the facts we consistently have employed in the past.
“within thirty days.” Ohio Rev.Code Ann. § 124.34 (1984). 3
Although this **1501 statutory limit has been *556 viewed          I previously have stated my view that
only as “directory” by Ohio courts, those courts have also
                                                                     “[t]o be meaningful, an opportunity for a full hearing and
made it clear that when the limit is exceeded, “[t]he burden of
                                                                     determination must be afforded at least at a time when
proof [is] placed on the [Commission] to illustrate to the court
                                                                     the potentially irreparable and substantial harm caused by
that the failure to comply with the 30-day requirement ... was
                                                                     a suspension can still be avoided—i.e., either before or
reasonable.” In re Bronkar, 53 Ohio Misc. 13, 17, 372 N.E.2d
                                                                     immediately after suspension.” Barry v. Barchi, supra, 443
1345, 1347 (Com.Pl.1977). I cannot conclude on this record
                                                                     U.S., at 74, 99 S.Ct., at 2654 (BRENNAN, J., concurring
that Loudermill could prove “no set of facts” that might have
                                                                     in part).
entitled him to relief after nine months of waiting.
                                                                    **1502       Loudermill's allegations of months-long
 *557 The Court previously has recognized that                     administrative delay, taken together with the facially
constitutional restraints on the timing, no less than the          divergent results regarding length of administrative delay
form, of a hearing and decision “will depend on appropriate        found in Barchi as compared to Arnett, see n. 4, supra, are
accommodation of the competing interests involved.” Goss           sufficient in my mind to require further factual development.
v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738–739, 42             In no other way can the third Mathews factor—“the
L.Ed.2d 725 (1975). The relevant interests have generally          Government's interest, including the function involved and
been recognized as threefold: “the importance of the private       the fiscal and administrative burdens that the additional or
interest and the length or finality of the deprivation, the        substitute procedural requirement [in this case, a speedier
likelihood of governmental error, and the magnitude of             hearing and decision] would entail,” 424 U.S., at 335, 96
the governmental interests involved.” Logan v. Zimmerman
                                                                   S.Ct., at 903—sensibly be evaluated in this case. 5 I therefore
Brush Co., 455 U.S. 422, 434, 102 S.Ct. 1148, 1157, 71
                                                                   would remand the delay issue to the District Court for
L.Ed.2d 265 (1982) (citations omitted); accord, Mathews v.
                                                                   further evidentiary proceedings consistent with the Mathews
Eldridge, 424 U.S. 319, 334–335, 96 S.Ct. 893, 902–903,
                                                                   approach. I respectfully dissent from the Court's contrary
47 L.Ed.2d 18 (1976); cf. United States v. $8,850, 461 U.S.
                                                                   decision in Part V.
555, 564, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1983) (four-
factor test for evaluating constitutionality of delay between
time of property seizure and initiation of forfeiture action).      *559 Justice REHNQUIST, dissenting.
“Little can be said on when a delay becomes presumptively          In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d
improper, for the determination necessarily depends on the         15 (1974), six Members of this Court agreed that a public
facts of the particular case.” Id., at 565, 103 S.Ct., at 2012.    employee could be dismissed for misconduct without a full
                                                                   hearing prior to termination. A plurality of Justices agreed


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           11
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

that the employee was entitled to exactly what Congress gave        be during good behavior and efficient service and no such
him, and no more. The Chief Justice, Justice Stewart, and I         officer or employee shall be reduced in pay or position,
said:                                                               suspended, or removed, except ... for incompetency,
                                                                    inefficiency, dishonesty, drunkenness, immoral conduct,
  “Here appellee did have a statutory expectancy that he not        insubordination, discourteous treatment of the public,
  be removed other than for ‘such cause as will promote             neglect of duty, violation of such sections or the rules of
  the efficiency of [the] service.’ But the very section of         the director of administrative services or the commission,
  the statute which granted him that right, a right which           or any other failure of good behavior, or any other acts of
  had previously existed only by virtue of administrative           misfeasance, malfeasance, or nonfeasance in office.” Ohio
  regulation, expressly provided also for the procedure             Rev.Code Ann. § 124.34 (1984).
  by which ‘cause’ was to be determined, and expressly
  omitted the procedural guarantees which appellee insists        The very next paragraph of this section of the Ohio Revised
  are mandated by the Constitution. Only by bifurcating the       Code provides that in the event of suspension of more than
  very sentence of the Act of Congress which conferred            three days or removal the appointing authority shall furnish
  upon appellee the right not to be removed save for              the employee with the stated reasons for his removal. The next
  cause could it be said that he had an expectancy of that        paragraph provides that within 10 days following the receipt
  substantive right without the procedural limitations which      of such a statement, the employee may appeal in writing to
  Congress attached to it. In the area of federal regulation of   the State Personnel Board of Review or the Commission, such
  government employees, where in the absence of statutory         appeal shall be heard within 30 days from the time of its filing,
  limitation the governmental employer has had virtually          and the Board may affirm, disaffirm, or modify the judgment
  uncontrolled latitude in decisions as to hiring and firing,     of the appointing authority.
  Cafeteria Workers v. McElroy, 367 U.S. 886, 896–897, 81
  S.Ct. 1743, 1749–1750, 6 L.Ed.2d 1230 (1961), we do not          *561 Thus in one legislative breath Ohio has conferred upon
  believe that a statutory enactment such as the Lloyd-La         civil service employees such as respondents in these cases a
  Follette Act may be parsed as discretely as appellee urges.     limited form of tenure during good behavior, and prescribed
  Congress was obviously intent on according a measure of         the procedures by which that tenure may be terminated. Here,
  statutory job security to governmental employees which          as in Arnett, “[t]he employee's statutorily defined right is not
  they had not previously enjoyed, but was likewise intent on     a guarantee against removal without cause in the abstract,
  excluding more elaborate procedural requirements which          but such a guarantee as enforced by the procedures which
  it felt would make the operation of the new scheme              [the Ohio Legislature] has designated for the determination
  unnecessarily burdensome in practice. Where the focus of        of cause.” 416 U.S., at 152, 94 S.Ct., at 1643 (opinion of
  legislation was thus strongly on the procedural mechanism       REHNQUIST, J.). We stated in Board of Regents v. Roth, 408
  for enforcing the substantive *560 right which was              U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972):
  simultaneously conferred, we decline to conclude that the
  substantive right may be viewed wholly apart from the                        “Property interests, of course, are not
  procedure provided for its enforcement. The employee's                       created by the Constitution. Rather,
  statutorily defined right is not a guarantee against removal                 they are created and their dimensions
  without cause in the abstract, but such a guarantee as                       are defined by existing rules or
  enforced by the procedures which Congress has designated                     understandings that stem from an
  for the determination of cause.” Id., at 151–152, 94 S.Ct.,                  independent source such as state law
  at 1643.                                                                     —rules or understandings that secure
                                                                               certain benefits and that support claims
In these cases, the relevant Ohio statute provides in its first                of entitlement to those benefits.”
paragraph that
                                                                  We ought to recognize the totality of the State's definition
  “[t]he tenure of every officer or employee in the classified    of the property right in question, and not merely seize upon
  service of the state **1503 and the counties, civil             one of several paragraphs in a unitary statute to proclaim that
  service townships, cities, city health districts, general       in that paragraph the State has inexorably conferred upon
  health districts, and city school districts thereof, holding    a civil service employee something which it is powerless
  a position under this chapter of the Revised Code, shall        under the United States Constitution to qualify in the next


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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

                                                                        v. Kelly, 397 U.S. 254, 276, 90 S.Ct. 1011, 1024, 25 L.Ed.2d
paragraph of the statute. This practice ignores our duty under
                                                                        287 (1970) (Black, J., dissenting). The results from today's
Roth to rely on state law as the source of property interests
                                                                        balance certainly do not jibe with the result in Goldberg or
for purposes of applying the Due Process Clause of the
                                                                        Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d
Fourteenth Amendment. While it does not impose a federal
definition of property, the Court departs from the full breadth         18 (1976). * The lack of *563 any principled standards in
of the holding in Roth by its selective choice from among the           this area means that these procedural due process cases will
sentences the Ohio Legislature chooses to use in establishing           recur time and again. Every different set of facts will present
and qualifying a right.                                                 a new issue on what process was due and when. One way
                                                                        to avoid this subjective and varying interpretation of the Due
Having concluded by this somewhat tortured reasoning that               Process Clause in cases such as these is to hold that one who
Ohio has created a property right in the respondents in                 avails himself of government entitlements accepts the grant
these cases, the Court naturally proceeds to inquire what               of tenure along with its inherent limitations.
process is “due” before the respondents may be divested
of *562 that right. This customary “balancing” inquiry                  Because I believe that the Fourteenth Amendment of the
conducted by the Court in these cases reaches a result                  United States Constitution does not support the conclusion
that is quite unobjectionable, but it seems to me that it is            that Ohio's effort to confer a limited form of tenure upon
devoid of any principles which will either instruct or endure.          respondents resulted in the creation of a “property right” in
The balance is simply an ad hoc weighing which depends                  their employment, I dissent.
to a great extent upon how the Court subjectively views
the underlying interests at stake. The results in previous
cases and in these cases have been quite unpredictable. To              Parallel Citations
paraphrase Justice Black, today's balancing act requires a
“pretermination opportunity to respond” **1504 but there                105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494,
is nothing that indicates what tomorrow's will be. Goldberg             53 USLW 4306, 23 Ed. Law Rep. 473, 1 IER Cases 424


Footnotes
*      The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience
       of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
1      The statute authorizes the Commission to “affirm, disaffirm, or modify the judgment of the appointing authority.” Ohio Rev.Code
       Ann. § 124.34 (1984). Petitioner Parma Board of Education interprets this as authority to reinstate with or without backpay and
       views the Commission's decision as a compromise. Brief for Petitioner in No. 83–1363, p. 6, n. 3; Tr. of Oral. Arg. 14. The Court of
       Appeals, however, stated that the Commission lacked the power to award backpay. 721 F.2d 550, 554, n. 3 (1983). As the decision
       of the Commission is not in the record, we are unable to determine the reasoning behind it.
2      In denying the motion, the District Court no longer relied on the principle that the state legislature could define the necessary
       procedures in the course of creating the property right. Instead, it reached the same result under a balancing test based on Justice
       POWELL's concurring opinion in Arnett v. Kennedy, 416 U.S. 134, 168–169, 94 S.Ct. 1633, 1651–1652, 40 L.Ed.2d 15 (1974), and
       the Court's opinion in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). App. to Pet. for Cert. in No. 83–
       1362, pp. A54–A57.
3      Of course, the Due Process Clause also protects interests of life and liberty. The Court of Appeals' finding of a constitutional
       violation was based solely on the deprivation of a property interest. We address below Loudermill's contention that he has been
       unconstitutionally deprived of liberty. See n. 13, infra.
4      The relevant portion of § 124.34 provides that no classified civil servant may be removed except “for incompetency, inefficiency,
       dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such
       sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other
       acts of misfeasance, malfeasance, or nonfeasance in office.”
5      The Cleveland Board of Education now asserts that Loudermill had no property right under state law because he obtained his
       employment by lying on the application. It argues that had Loudermill answered truthfully he would not have been hired. He therefore
       lacked a “legitimate claim of entitlement” to the position. Brief for Petitioner in No. 83–1362, pp. 14–15.
          For several reasons, we must reject this submission. First, it was not raised below. Second, it makes factual assumptions—that
          Loudermill lied, and that he would not have been hired had he not done so—that are inconsistent with the allegations of the



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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

          complaint and inappropriate at this stage of the litigation, which has not proceeded past the initial pleadings stage. Finally, the
          argument relies on a retrospective fiction inconsistent with the undisputed fact that Loudermill was hired and did hold the security
          guard job. The Board cannot escape its constitutional obligations by rephrasing the basis for termination as a reason why Loudermill
          should not have been hired in the first place.
6      After providing for dismissal only for cause, see n. 4, supra, § 124.34 states that the dismissed employee is to be provided with a
       copy of the order of removal giving the reasons therefor. Within 10 days of the filing of the order with the Director of Administrative
       Services, the employee may file a written appeal with the State Personnel Board of Review or the Commission. “In the event such
       an appeal is filed, the board or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to
       hear, such appeal within thirty days from and after its filing with the board or commission, and it may affirm, disaffirm, or modify the
       judgment of the appointing authority.” Either side may obtain review of the Commission's decision in the State Court of Common
       Pleas.
7      There are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements. See Ewing v. Mytinger
       & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306,
       29 S.Ct. 101, 53 L.Ed. 195 (1908).
8      This is not to say that where state conduct is entirely discretionary the Due Process Clause is brought into play. See Meachum v.
       Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976). Nor is it to say that a person can insist on a hearing in order to
       argue that the decisionmaker should be lenient and depart from legal requirements. See Dixon v. Love, 431 U.S. 105, 114, 97 S.Ct.
       1723, 1728, 52 L.Ed.2d 172 (1977). The point is that where there is an entitlement, a prior hearing facilitates the consideration of
       whether a permissible course of action is also an appropriate one. This is one way in which providing “effective notice and informal
       hearing permitting the [employee] to give his version of the events will provide a meaningful hedge against erroneous action. At least
       the [employer] will be alerted to the existence of disputes about facts and arguments about cause and effect.... [H]is discretion will
       be more informed and we think the risk of error substantially reduced.” Goss v. Lopez, 419 U.S., at 583–584, 95 S.Ct., at 740–741.
9      Loudermill's dismissal turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but
       on the subjective question whether he had lied on his application form. His explanation for the false statement is plausible in light of
       the fact that he received only a suspended 6-month sentence and a fine on the grand larceny conviction. Tr. of Oral Arg. 35.
10     In the cases before us, no such danger seems to have existed. The examination Donnelly failed was related to driving school buses,
       not repairing them. Id., at 39–40. As the Court of Appeals stated, “[n]o emergency was even conceivable with respect to Donnelly.”
       721 F.2d, at 562. As for Loudermill, petitioner states that “to find that we have a person who is an ex-felon as our security guard is
       very distressful to us.” Tr. of Oral Arg. 19. But the termination was based on the presumed misrepresentation on the employment
       form, not on the felony conviction. In fact, Ohio law provides that an employee “shall not be disciplined for acts,” including
       criminal convictions, occurring more than two years previously. See Ohio Admin.Code § 124–3–04 (1979). Petitioner concedes that
       Loudermill's job performance was fully satisfactory.
11     Loudermill's hearing before the referee occurred two and one-half months after he filed his appeal. The Commission issued its written
       decision six and one-half months after that. Administrative proceedings in Donnelly's case, once it was determined that they could
       proceed at all, were swifter. A writ of mandamus requiring the Commission to hold a hearing was issued on May 9, 1978; the hearing
       took place on May 30; the order of reinstatement was issued on July 6.
          Section 124.34 provides that a hearing is to be held within 30 days of the appeal, though the Ohio courts have ruled that the time
          limit is not mandatory. E.g., In re Bronkar, 53 Ohio Misc. 13, 17, 372 N.E.2d 1345, 1347 (Com.Pl.1977). The statute does not
          provide a time limit for the actual decision.
12     It might be argued that once we find a due process violation in the denial of a pretermination hearing we need not and should not
       consider whether the post-termination procedures were adequate. See Barry v. Barchi, 443 U.S. 55, 72–74, 99 S.Ct. 2642, 2653–2654,
       61 L.Ed.2d 365 (1979) (BRENNAN, J., concurring in part). We conclude that it is appropriate to consider this issue, however, for
       three reasons. First, the allegation of a distinct due process violation in the administrative delay is not an alternative theory supporting
       the same relief, but a separate claim altogether. Second, it was decided by the court below and is raised in the cross-petition. Finally,
       the existence of post-termination procedures is relevant to the necessary scope of pretermination procedures.
13     The cross-petition also argues that Loudermill was unconstitutionally deprived of liberty because of the accusation of dishonesty
       that hung over his head during the administrative proceedings. As the Court of Appeals found, 721 F.2d, at 563, n. 18, the failure to
       allege that the reasons for the dismissal were published dooms this claim. See Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074,
       2079, 48 L.Ed.2d 684 (1976).
*      See U.S. Dept. of Labor, Comparison of State Unemployment Insurance Laws §§ 425, 435 (1984); see also id., at 4–33 to 4–36 (table
       of state rules governing disqualification from benefits for discharge for misconduct).
1      Post-termination administrative procedures designed to determine fully and accurately the correctness of discharge actions are to be
       encouraged. Multiple layers of administrative procedure, however, may not be created merely to smother a discharged employee with



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                           14
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

       “thoroughness,” effectively destroying his constitutionally protected interests by over-extension. Cf. ante, at 1496 (“thoroughness”
       of procedures partially explains delay in this case).
2      The interim decision, issued by a hearing examiner, was in Loudermill's favor and recommended his reinstatement. But Loudermill
       was not reinstated nor were his wages even temporarily restored; in fact, there apparently exists no provision for such interim relief
       or restoration of backpay under Ohio's statutory scheme. See ante, at 1490, n. 1; cf. Arnett v. Kennedy, 416 U.S. 134, 196, 94
       S.Ct. 1633, 1665, 40 L.Ed.2d 15 (1974) (WHITE, J., concurring in part and dissenting in part) (under federal civil service law,
       discharged employee's wages are only “provisionally cut off” pending appeal); id., at 146 (opinion of REHNQUIST, J.) (under federal
       system, backpay is automatically refunded “if the [discharged] employee is reinstated on appeal”). See also N.Y.Civ.Serv.Law §
       75(3) (McKinney 1983) (suspension without pay pending determination of removal charges may not exceed 30 days). Moreover,
       the final decision of the Commission to reverse the hearing examiner apparently was arrived at without any additional evidentiary
       development; only further argument was had before the Commission. 721 F.2d 550, 553 (CA6 1983). These undisputed facts lead
       me at least to question the administrative value of, and justification for, the 9-month period it took to decide Loudermill's case.
3      A number of other States similarly have specified time limits for hearings and decisions on discharge appeals taken by tenured
       public employees, indicating legislative consensus that a month or two normally is sufficient time to resolve such actions. No state
       statutes permit administrative delays of the length alleged by Loudermill. See, e.g., Ariz.Rev.Stat.Ann. § 41–785(A), (C) (Supp.1984–
       1985) (hearing within 30 days, decision within 30 days of hearing); Colo.Rev.Stat. § 24–50–125(4) (Supp.1984) (hearing within
       45 days, decision within 45 days of hearing); Conn.Gen.Stat.Ann. § 5–202(b) (Supp.1984) (decision within 60 days of hearing);
       Ill.Rev.Stat., ch. 24½, ¶ 38b14 (1983) (hearing within 45 days); Ind.Code § 4–15–2–35 (1982) (decision within 30 days of hearing);
       Iowa Code § 19A.14 (1983) (hearing within 30 days); Kan.Stat.Ann. § 75–2949(f) (Supp.1983) (hearing within 45 days); Ky.Rev.Stat.
       § 18A.095(3) (1984) (hearing within 60 days of filing, decision within 90 days of filing); Maine Rev.Stat.Ann., Tit. 5, § 753(5)
       (1979) (decision within 30 days of hearing); Md.Ann.Code, Art. 64A, §§ 33(b)(2), (e) (Supp.1984) (salary suspension hearing within
       5 days and decision within 5 more days; discharge hearing within 90 days and decision within 45 days of hearing); Mass.Gen.Laws
       Ann., ch. 31, § 43 (Supp.1984–1985) (hearing within 10 days, findings “forthwith,” decision within 30 days of findings); Minn.Stat.
       § 44.08 (1970) (hearing within 10 days, decision within 3 days of hearing); Nev.Rev.Stat. § 284.390(2) (1983) (hearing within 20
       days); N.J.Stat.Ann. §§ 11:15–4, 11:15–6 (West 1976) (hearing within 30 days, decision within 15 days of hearing); Okla.Stat., Tit.
       74, §§ 841.13, 841.13A (Supp.1984) (hearing within 35 days, decision within 15 days of hearing); R.I.Gen.Laws §§ 36–4–40, 36–
       4–40.2, 36–4–41 (1984) (initial hearing within 14 days, interim decision within 20 days of hearing, appeal decision within 30 more
       days, final decision of Governor within 15 more days); S.C.Code §§ 8–17–330, 8–17–340 (Supp.1984) (interim decision within 45
       days of filing, final decision within 20 days of hearing); Utah Code Ann. § 67–19–25 (Supp.1983) (interim decision within 5–20
       days, final hearing within 30 days of filing final appeal, final decision within 40 days of hearing); Wash.Rev.Code § 41.64.100 (1983)
       (final decision within 90 days of filing); Wis.Stat. § 230.44(4)(f) (Supp.1984–1985) (decision within 90 days of hearing); see also
       Ala.Code § 36–26–27(b) (Supp.1984) (hearings on citizen removal petitions within 20 days of service); D.C.Code § 1–617.3(a)(1)
       (D) (1981) (“Career and Educational Services” employees “entitled” to decision within 45 days); Ga.Code Ann. § 45–20–9(e)(1)
       (1982) (hearing officer's decision required within 30 days of hearing); Miss.Code Ann. § 21–31–23 (Supp.1984) (hearing required
       within 20 days of termination for “extraordinary circumstances”).
4      After giving careful consideration to well-developed factual contexts, the Court has reached results that might be viewed as
       inconsistent in the abstract. Compare Barchi, 443 U.S., at 66, 99 S.Ct., at 2650 (disapproving statute requiring decision within 30 days
       of hearing), with Arnett, 416 U.S., at 194, 94 S.Ct., at 1664 (WHITE, J., concurring in part and dissenting in part) (approving statutory
       scheme under which over 50 percent of discharge appeals “take more than three months”). Rather than inconsistency, however, these
       differing results demonstrate the impossibility of drawing firm lines and the importance of factual development in such cases.
5      In light of the complete absence of record evidence, it is perhaps unsurprising that the Court of Appeals below was forced to speculate
       that “[t]he delays in the instant cases in all likelihood were inadvertent.” 721 F.2d at 564, n. 19. Similarly, the Cleveland Board of
       Education and Civil Service Commission assert only that “[n]o authority is necessary to support the proposition” that administrative
       resolution of a case like Loudermill's in less than nine months is “almost impossible.” Brief for Respondents in No. 83–6392, p. 8,
       n. 4. To the contrary, however, I believe our precedents clearly require demonstration of some “authority” in these circumstances.
*      Today the balancing test requires a pretermination opportunity to respond. In Goldberg we required a full-fledged trial-type hearing,
       and in Mathews we declined to require any pretermination process other than those required by the statute. At times this balancing
       process may look as if it were undertaken with a thumb on the scale, depending upon the result the Court desired. For example, in
       Mathews we minimized the importance of the benefit to the recipient, stating that after termination he could always go on welfare
       to survive. 424 U.S., at 340–343, 96 S.Ct., at 905–907; see also id., at 350, 96 S.Ct., at 910 (BRENNAN, J., dissenting). Today,
       however, the Court exalts the recipient's interest in retaining employment; not a word is said about going on welfare. Conversely, in
       Mathews we stressed the interests of the State, while today, in a footnote, the Court goes so far as to denigrate the State's interest in
       firing a school security guard who had lied about a prior felony conviction. Ante, at 1495, n. 10.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        15
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
105 S.Ct. 1487, 118 L.R.R.M. (BNA) 3041, 84 L.Ed.2d 494, 53 USLW 4306...

         Today the Court purports to describe the State's interest, ante, at 1495, but does so in a way that is contrary to what petitioner
         Boards of Education have asserted in their briefs. The description of the State's interests looks more like a make-weight to support
         the Court's result. The decision whom to train and employ is strictly a decision for the State. The Court attempts to ameliorate its
         ruling by stating that a State may always suspend an employee with pay, in lieu of a predischarge hearing, if it determines that he
         poses a threat. Ante, at 1495. This does less than justice to the State's interest in its financial integrity and its interest in promptly
         terminating an employee who has violated the conditions of his tenure, and ignores Ohio's current practice of paying back wages
         to wrongfully-discharged employees.


End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                            16
Croucher v. Croucher, 660 S.W.2d 55 (1983)


                                                                              Mental condition prior or subsequent to
                                                                          execution of will
                      660 S.W.2d 55
                  Supreme Court of Texas.                                 Evidence of incompetency at other times can
                                                                          be used to establish incompetency on day will
       James W. CROUCHER, Jr. et al., Petitioners,                        was executed if it demonstrates that condition
                         v.                                               persists and has some probability of being
         Virginia M. CROUCHER, Respondent.                                same condition which obtained at time of will's
                                                                          making.
             No. C–1855. | Nov. 2, 1983.
            | Rehearing Denied Dec. 14, 1983.                             26 Cases that cite this headnote

In will contest, the County Court No. 3, El Paso County,
                                                                    [4]   Wills
Ferguson, J., denied will probate based on jury finding
                                                                               Weight and Sufficiency
that testator lacked testamentary capacity, and proponent of
will appealed. The El Paso Court of Civil Appeals, Eighth                 Proponent of will did not establish that testator
Supreme Judicial District, 654 S.W.2d 475, Osborn, J.,                    had testamentary capacity at time he executed
reversed, and testator's sons appealed. The Supreme Court,                will, where there was evidence indicating lack
Spears, J., held that proponent failed to establish that testator         of testamentary capacity, including evidence that
had testamentary capacity at time he executed will.                       testator was at times confused and his memory
                                                                          was sketchy and that he had one completely
Reversed.                                                                 occluded and one partially occluded carotid
                                                                          artery, and evidence from which jury could have
Wallace, J., dissented.                                                   inferred that testator's problems, shown to have
                                                                          existed before and after he executed will, kept
                                                                          him from having testamentary capacity when he
                                                                          executed will.
 West Headnotes (6)
                                                                          27 Cases that cite this headnote

 [1]     Wills
              Presumptions and Burden of Proof                      [5]   Appeal and Error
                                                                             Verdict, findings, or decision
         Burden of proving testamentary capacity was on
         proponent of will.                                               When party having burden of proof appeals from
                                                                          adverse fact-finding in trial court, point of error
         12 Cases that cite this headnote                                 should be that matter was established as matter
                                                                          of law, or that jury's finding was against great
                                                                          weight and preponderance of evidence.
 [2]     Wills
              Presumptions and Burden of Proof                            339 Cases that cite this headnote
         Fact that will was self-proved did not shift
         burden of proof from proponent of will, where
                                                                    [6]   Appeal and Error
         contest was filed before will was admitted
                                                                             Scope and effect
         to probate; therefore, court was required to
         sustain jury's finding that testator did not                     Complaint by party with burden of proof
         have testamentary capacity unless proponent                      that there was no evidence to support jury's
         conclusively proved that he did.                                 finding invokes appellate jurisdiction to consider
                                                                          contention that opposite of finding was
         33 Cases that cite this headnote                                 established as matter of law.

                                                                          399 Cases that cite this headnote
 [3]     Wills



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Croucher v. Croucher, 660 S.W.2d 55 (1983)


                                                                  attesting witnesses stated at trial that Mr. Croucher was lucid
                                                                  and knew what he was doing. Several persons who saw Mr.
Attorneys and Law Firms                                           Croucher at a Fourth of July party, three days before the
                                                                  will was executed, testified that he was alert, was able to
*56 Ken Powell, El Paso, for petitioners.
                                                                  carry on a conversation, and participated in a card game. An
James T. Allen, El Paso, for respondent.                          acquaintance of Mr. Croucher who was also a medical doctor
                                                                  testified that he had seen Mr. Croucher around the same time,
Opinion                                                           that he believed him to be competent, and that the blockage
                                                                  in the carotid arteries would not necessarily cause mental
SPEARS, Justice.
                                                                  decline.
This case involves a will contest. James Croucher Sr. died
                                                                   *57 [1]        [2] Against this background, the question is
in 1980, leaving a self-proving will devising his entire estate
                                                                  whether Mrs. Croucher established as a matter of law that
to his wife, respondent Virginia Croucher. Petitioners James
                                                                  her husband had testamentary capacity on July 7, 1980. The
Croucher Jr. and Kenneth Croucher, Mr. Croucher's sons by
                                                                  burden of proving capacity was on Mrs. Croucher. Siegler v.
a previous marriage, contested the will, alleging that their
                                                                  Siegler, 391 S.W.2d 403 (Tex.1965.) The fact that the will
father did not have testamentary capacity. Based on a jury
                                                                  was self-proved does not shift the burden, because the contest
finding that Mr. Croucher lacked such capacity, the trial court
                                                                  was filed before the will was admitted to probate. Reynolds v.
rendered judgment that the will be denied probate. The Court
                                                                  Park, 485 S.W.2d 807 (Tex.Civ.App.—Amarillo 1972, writ
of Appeals reversed, holding that the evidence established as
                                                                  ref'd n.r.e.); see also In re Price's Estate, 375 S.W.2d 900,
a matter of law that Mr. Croucher had testamentary capacity.
                                                                  903 (Tex.1964). Hence, we must sustain the jury's finding that
We reverse the judgment of the Court of Appeals and affirm
                                                                  Mr. Croucher did not have testamentary capacity unless Mrs.
that of the trial court.
                                                                  Croucher conclusively proved that he did. See W.H. Hodges
                                                                  & Co. v. Donley County State Bank, 407 S.W.2d 221, 223
The evidence shows that Mr. Croucher had a history of
                                                                  (Tex.1966).
physical problems, many of which stemmed from his being
diabetic. In December 1979, he was admitted to the hospital
                                                                  Mrs. Croucher clearly produced sufficient evidence to sustain
to have two toes amputated. A brain scan done at that
                                                                  a finding that Mr. Croucher had testamentary capacity. That
time indicated that Mr. Croucher had a diminished flow of
                                                                  evidence, if not contradicted, would be enough to establish the
blood to the brain in the right carotid artery. Another brain
                                                                  matter conclusively. We must determine, then, if James and
scan done shortly thereafter showed diminished flow in the
                                                                  Kenneth Croucher produced some evidence that their father
corresponding left artery. In late January 1980, Mr. Croucher
                                                                  was not competent to make a will.
returned to the hospital to have his left leg amputated. He
was readmitted in early March, and an arteriogram revealed
                                                                   [3] There is no direct evidence that Mr. Croucher lacked
that Mr. Croucher's right internal carotid artery was totally
                                                                  testamentary capacity on the day that he executed the will.
occluded. The report from a neurological examination done
                                                                  Evidence of incompetency at other times can be used to
on that occasion recited that Mr. Croucher's “memory was
                                                                  establish incompetency on the day the will was executed if
sketchy and he seemed at times confused.”
                                                                  it “demonstrates that the condition persists and ‘has some
                                                                  probability of being the same condition which obtained at
Mr. Croucher executed the will in question on July 7,
                                                                  the time of the will's making.’ ” Lee v. Lee, 424 S.W.2d 609
1980. Slightly over a month later, on August 12, he was
                                                                  (Tex.1968) (quoting 1 McCormick and Ray, Texas Law of
admitted to the hospital once again. The evidence indicates
                                                                  Evidence § 896, at 675 [2d ed. 1956] ).
that Mr. Croucher had suffered a stroke affecting his speech
and memory. The hospital admission report stated that
                                                                  Thus, the evidence adduced by the Croucher sons must pass
Mr. Croucher was suffering from “severe arteriosclerotic
                                                                  two tests. First, was the evidence of the kind that would
cardiovascular disease,” and had been undergoing decreasing
                                                                  indicate lack of testamentary capacity? Second, if so, was
mental status for one month. Mr. Croucher died on August 17.
                                                                  that evidence probative of Mr. Croucher's capacity, or lack
                                                                  thereof, on July 7, 1980, when the will was executed?
The record also contains evidence that Mr. Croucher had
testamentary capacity on the date the will was executed. The



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Croucher v. Croucher, 660 S.W.2d 55 (1983)


                                                                     indicated that Mr. Croucher had suffered from decreasing
 [4] The answer to both questions is “yes.” The evidence
                                                                     mental status for one month.
shows that in March of 1980, Mr. Croucher at times
was confused and his memory was sketchy. He had one
                                                                      *58 We hold that there was some evidence of lack of
completely occluded and one partially occluded carotid
                                                                     testamentary capacity. In the face of this record, we cannot
artery. One of Mrs. Croucher's own witnesses, a doctor,
                                                                     say that Mrs. Croucher established as a matter of law that
admitted that this condition could have caused Mr. Croucher
                                                                     her husband had testamentary capacity at the time that he
to be less than lucid at times. Mrs. Croucher's own witnesses
                                                                     executed his will.
testified that they had seen Mr. Croucher in late July, and that
he had evidently suffered a stroke, could not talk, and was
                                                                      [5]     [6] Mrs. Croucher also complained to the Court of
no longer able to care for himself. Mrs. Croucher admitted
                                                                     Appeals that “there was no, or insufficient, evidence of lack
writing a letter, dated August 4, to James Croucher, which
                                                                     of testamentary capacity to support the jury finding.” Those
said, “Thank goodness that I got him to the VA while he
                                                                     points of error are appropriate when the party without the
was still lucid.” A reasonable inference from that letter would
                                                                     burden of proof complains of a jury finding. When, however,
have been that Mr. Croucher was no longer lucid. Certainly
                                                                     the party having the burden of proof appeals from an adverse
these facts would have constituted some evidence that Mr.
                                                                     fact finding in the trial court, the point of error should be
Croucher was without capacity during August.
                                                                     that the matter was established as a matter of law, or that the
                                                                     jury's finding was against the great weight and preponderance
The Court of Appeals, citing Cruz v. Prado, 239 S.W.2d
                                                                     of the evidence. O'Neil v. Mack Trucks, Inc., 542 S.W.2d
650 (Tex.Civ.App.—San Antonio 1951, no writ), held that
                                                                     112 (Tex.1978). A complaint by the party with the burden of
there was no evidence of lack of testamentary capacity,
                                                                     proof that there was no evidence to support the jury's finding
because all of James and Kenneth Croucher's proof indicated
                                                                     invokes appellate jurisdiction to consider the contention that
physical disability, from which mental incapacity cannot be
                                                                     the opposite of the finding was established as a matter of
inferred. Cruz v. Prado does not apply to this case. Here, the
                                                                     law. O'Neil, supra. In its opinion on motion for rehearing, the
evidence did not simply demonstrate physical decline. Rather,
                                                                     Court of Appeals, while recognizing this rule, held that Mrs.
the contestants produced evidence of physical problems,
                                                                     Croucher had failed to state a proper point of error concerning
i.e. occlusion of the carotid arteries, consistent with mental
                                                                     the factual sufficiency of the evidence. The correctness of
incapacity.
                                                                     that holding is not before us, because Mrs. Croucher has not
                                                                     complained of it by way of cross point. Maddox v. Maxwell,
There was also evidence from which the jury could have
                                                                     369 S.W.2d 343 (Tex.1963).
inferred that Mr. Croucher's problems, shown to have existed
in March and August, kept him from having testamentary
                                                                     The judgment of the Court of Appeals is reversed, and that of
capacity on July 7. Mr. Croucher had a failing memory
                                                                     the trial court is affirmed.
resulting from his arteriosclerosis in March, before the will
was executed. That same disease incapacitated Mr. Croucher
in August, after the will was made. That sequence of events
alone is some evidence that Mr. Croucher suffered from the           WALLACE, J., notes his dissent.
condition on July 7. Moreover, the August hospital report

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

                                                                                 Terms implied as part of contract
                       8 S.W.3d 309                                         Generally, absent a special relationship, there is
                  Supreme Court of Texas.                                   no duty between parties to a contract to act in
                                                                            good faith.
        EL PASO NATURAL GAS CO., Petitioner,
                          v.                                                3 Cases that cite this headnote
        MINCO OIL & GAS, INC., and Charles F.
         Doornbos as Trustee for the Charles F.                       [3]   Release
        Doornbos Revocable Trust, Respondents.                                  Agreements to release
                                                                            Uniform Commercial Code's (UCC) statutory
            No. 98–0478. | Argued Dec. 10,                                  duty of good faith and fair dealing in the
          1998. | Decided Nov. 18, 1999. |                                  performance, enforcement and modification of
            Rehearing Overruled Jan. 27, 2000.                              a commercial contract did not apply to a final
                                                                            release of liability under a natural gas take-or-
Property owners sued natural gas company for breach of
                                                                            pay purchase agreement; release was neither the
take-or-pay gas purchase agreements, and company defended
                                                                            enforcement and performance of a contract for
based on releases which it had previously obtained from
                                                                            sale of goods nor a modification of an agreement,
property owners, prior to allowing them to sell their gas
                                                                            but was instead the formation of a separate
to other buyers. The 31st District Court, Hemphill County,
                                                                            contract to which the UCC's duty of good faith
Lee Waters, J., held that releases were unconscionable and
                                                                            did not apply. V.T.C.A., Bus. & C. §§ 1.203,
entered judgment in favor of property owners on their
                                                                            2.209.
claims, and gas company appealed. The Amarillo Court
of Appeals, 964 S.W.2d 54, affirmed, and gas company                        9 Cases that cite this headnote
appealed. The Supreme Court, Enoch, J., held that: (1)
Uniform Commercial Code's (UCC) statutory duty of good
faith and fair dealing in the performance, enforcement and            [4]   Sales
modification of a commercial contract did not apply to final                     Nature of property
releases of liability executed by parties, and (2) gas company's            Buying and selling oil and gas pursuant to take-
failure to specifically challenge trial court's finding that letter         or-pay gas purchase agreements is a transaction
terminating a take-or-pay agreement was ambiguous as to                     involving “goods” within the meaning of the
whether it was a release did not waive ambiguity issue on                   Uniform Commercial Code's (UCC) good faith
appeal.                                                                     provisions. V.T.C.A., Bus. & C. §§ 1.203, 2.209.

                                                                            4 Cases that cite this headnote
Reversed and rendered.

                                                                      [5]   Contracts
                                                                                Agreement to make contract in future
 West Headnotes (10)
                                                                            Release
                                                                                Agreements to release
 [1]     Appeal and Error                                                   Uniform Commercial Code's (UCC) duty of
            Cases Triable in Appellate Court                                good faith in performance of a contract does not
         Issue of whether one has a duty to act in good                     extend to the formation of a contract, including a
         faith is a question of law subject to de novo                      release. V.T.C.A., Bus. & C. § 1.203.
         review.
                                                                            1 Cases that cite this headnote
         59 Cases that cite this headnote

                                                                      [6]   Release
 [2]     Contracts                                                              Nature and requisites in general



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

        “Release” is a contract by which the parties agree
        that there are no longer any duties to perform
        or enforce under the original contract; it acts as    Attorneys and Law Firms
        a voluntary settlement of the claims relating to
                                                              *311 Alene Ross Levy, Lynne Liberato, Kent Rutter,
        each party's performance or non-performance of
                                                              Michael K. Swan, James Cowan, S. Shawn Stephens,
        the original contract.
                                                              Houston, for Petitioner.
        3 Cases that cite this headnote
                                                              John Smithee, Joe W. Hayes, Amarillo, for Respondents.

 [7]    Release                                               Opinion
            Agreements to release
                                                              Justice ENOCH delivered the opinion of the Court, in which
        Uniform Commercial Code's (UCC) duty of               Chief Justice PHILLIPS, Justice HECHT, Justice BAKER,
        good faith when agreeing to modify a contract         Justice ABBOTT, Justice O'NEILL, and Justice GONZALES
        does not impose a duty of good faith on forming       joined.
        a final release. V.T.C.A., Bus. & C. § 2.209(a).
                                                              This is an appeal from a judgment awarding respondents
        Cases that cite this headnote                         Minco Oil & Gas, Inc. and Charles F. Doornbos as Trustee
                                                              for the Charles F. Doornbos Revocable Trust damages for
 [8]    Appeal and Error                                      breach of gas purchase agreements against petitioner, El
           Necessity of Specific Objection                    Paso Natural Gas Company. As to Minco, the principal
                                                              issue is whether the Uniform Commercial Code's good faith
        Gas company's failure to specifically challenge
                                                              obligations apply to its final release of its agreement with
        trial court's finding that company's letter
        terminating a take-or-pay gas purchase                El Paso. We conclude that the UCC 1 does not impose
        agreement was ambiguous as to whether it was a        a duty of good faith upon the formation or procurement
        release did not waive ambiguity issue on appeal,      of a final release of liability. Thus, we hold that Minco's
        where trial court assumed that letter operated        release is enforceable and releases El Paso from its take-
        as a release and concluded that its operation         or-pay obligations to Minco. Regarding Doornbos, the issue
        as a release was unconscionable, rendering            is whether El Paso waived error thus limiting the court of
        ambiguity finding unnecessary to its judgment.        appeals' authority to render judgment for El Paso on the
                                                              enforcement of Doornbos's release. Because we conclude El
        7 Cases that cite this headnote                       Paso did not waive error, we reach the question and conclude
                                                              that Doornbos's release is enforceable and releases El Paso
                                                              from its take-or-pay obligations to Doornbos. Accordingly,
 [9]    Contracts
                                                              we reverse the court of appeals' judgment and render
            Ambiguity in general
                                                              judgment for El Paso.
        Whether or not a contract is ambiguous is a
        question of law for the court.

        1 Cases that cite this headnote                                           BACKGROUND

                                                              In 1979, Minco and Doornbos entered into separate
 [10]   Appeal and Error
                                                              agreements with El Paso containing identical “take-or-pay”
           Requisites and Sufficiency
                                                              clauses. The agreements' take-or-pay provisions required
        Supreme Court liberally construes issues              El Paso to purchase a stated minimum quantity of gas
        presented to obtain a just, fair, and equitable       or pay Minco and Doornbos the difference between the
        adjudication of the rights of the litigants.          quantity actually taken and the stated minimum quantity.
                                                              Due to the mid–1980's sharp decline in natural gas prices
        11 Cases that cite this headnote
                                                              and demand, El Paso determined that it was unprofitable to
                                                              continue purchasing gas under the agreements' take-or-pay



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      2
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

requirements. To mitigate its losses, El Paso executed with        and Doornbos damages under the agreements' take-or-pay
Minco and Doornbos various amendments to the agreements            provisions.
that reduced El Paso's take-or-pay obligations and granted
El Paso the right to unilaterally reduce the price it paid         The court of appeals reversed the trial court's finding of
for gas. In addition, the parties executed over eighty other       unconscionability as to all the agreements. 2 The court,
contracts (“monthly releases”) that: (1) released El Paso from     however, agreed with the trial court's finding that El Paso
its monthly take-or-pay obligation; (2) allowed Minco and          procured the Minco final termination letter in bad faith and
Doornbos to sell their gas on the spot market during the           affirmed the judgment for Minco. Because unconscionability
relevant time period; and (3) allowed El Paso the option either    was the only ground upon which the trial court relied to
to reduce its annual take-or-pay obligation by the amount          void the Doornbos termination letter, the court of appeals
of gas Minco and Doornbos sold on the spot market or to            concluded the release was valid and rendered judgment that
disregard El Paso's obligation for the month covered by the
                                                                   Doornbos take nothing. 3
contract.

                                                                   On rehearing, the court of appeals concluded that El Paso
In 1988, Minco requested and received from El Paso a final
                                                                   had not properly preserved error on its defense that the
termination of its agreement and a mutual release of liabilities
                                                                   Doornbos termination letter operated as a release. The court
(“Minco termination letter”). Under this termination letter, El
                                                                   reasoned that because the trial court, in its findings of fact and
Paso and Minco released each other “from any and all claims,
                                                                   conclusions of law, found the Doornbos termination letter to
causes of action or liability that may have existed concerning
                                                                   be ambiguous and expressly refused to rule upon whether the
the Agreement.”
                                                                   termination letter was a release, El Paso had the burden to
                                                                   show on appeal that it had raised the issue that the document
In 1991, El Paso decided to terminate its relationship with
                                                                   was a release as a matter of law. But because El Paso failed
Doornbos and sent Doornbos and his predecessors-in-interest
                                                                   to challenge the court's refusal to hold the letter a release,
form letters that the parties signed agreeing to waive “[a]ll
                                                                   El Paso waived error on whether the document effectuated a
past liabilities that might exist between the parties.”
                                                                   release. The court thus concluded that it was without authority

 *312 In 1992, Minco and Doornbos sued El Paso under               to now find the document was a release. 4 The court of
the 1979 agreements' take-or-pay provisions. Minco and             appeals then considered whether the amendatory agreements
Doornbos argued that the releases were invalid, alleging           and monthly releases were valid to determine if the Doornbos
that El Paso obtained the Minco and Doornbos amendatory            Agreement's take-or-pay provision was enforceable. In its
agreements, monthly release letters, and termination letters       analysis, the court considered whether El Paso had a duty
unconscionably and in bad faith. El Paso responded that the        to act in good faith in obtaining the amendatory agreements
parties had mutually released all claims through the Minco         and monthly releases, and if so, whether El Paso had in
and Doornbos amendatory agreements, monthly release                fact breached the duty. The court of appeals, agreeing with
letters, and termination letters.                                  the trial court, concluded that UCC section 1.203 imposed
                                                                   a duty on El Paso to act in good faith in procuring the
In a preliminary ruling, the trial court granted partial           amendatory agreements and monthly releases. The court then
summary judgment for Minco and Doornbos, holding that              concluded that El Paso procured the amendatory agreements
the amendatory agreements, the monthly releases, and the           and monthly releases in bad faith and, therefore, held them
Minco and Doornbos final termination letters were all              unenforceable. Thus, on rehearing, the court of appeals also
unconscionable as a matter of law. In a bench trial on             affirmed the trial court's judgment for Doornbos.
the remaining issues, the trial court not only reaffirmed its
earlier ruling, but also concluded that El Paso procured the
amendatory agreements, monthly releases, and the Minco                          MINCO—DUTY OF GOOD FAITH
termination letter in bad faith. But the trial court did not
make a bad faith determination concerning the Doornbos             [1]    [2]    [3]   Because the issue of whether one has a duty to
termination letter. In any event, the court declined to enforce    act in good faith is a question of law, our review is de novo. 5
any of the releases and ordered El Paso to pay Minco               The general rule is that, absent a special relationship, *313
                                                                   there is no duty between parties to a contract to act in good



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

faith. 6 Here, the parties do not contend that a common law         the observance of reasonable commercial standards of fair
duty of good faith exists. Rather, they disagree over whether       dealing in the trade.” 12 But this duty of good faith does not
the UCC's statutory duty of good faith and fair dealing in the      extend to the formation of a contract. 13 And that includes
performance, enforcement and modification of a commercial
                                                                    releases because releases are contracts. 14 Indeed, a final
                                                    7
contract applies to a final release of liability.                   release is a contract by which the parties agree that there
                                                                    are no longer any duties to perform or *314 enforce under
Minco asserts that the UCC's duty to act in good faith
                                                                    the original contract. 15 And it acts as a voluntary settlement
applies to all the parties' agreements, including the final
                                                                    of the claims relating to each party's performance or non-
termination letter. Specifically, Minco contends that El Paso
                                                                    performance of the original contract. Because section 1.203
violated the UCC's good faith duty of “honesty in fact in the
                                                                    applies to the performance and enforcement of an existing
conduct or transaction concerned.” 8 It further asserts that        contract and not forming or procuring a contract, including
both UCC section 1.203's requirement that “[e]very contract         a mutual release of liability, section 1.203 imposes no good
or duty within this title imposes an obligation of good faith       faith duty on El Paso.
in its performance or enforcement” and UCC section 2.209's
requirement that modifications meet the test of good faith           [7] Similarly, section 2.209 does not impose a duty of
impose a duty of good faith to all the parties' agreements,         good faith on forming a final release. Subsection 2.209(a)
including the release.                                              states that “[a]n agreement modifying a contract within this
                                                                    chapter needs no consideration to be binding.” 16 The court
El Paso, by contrast, contends that the court of appeals
                                                                    of appeals concluded that this subsection imposes a duty of
erred by applying the UCC's obligation of good faith
to the formation or procurement of the final release. El            good faith upon seeking a release. 17 Referring to section
Paso asserts that the UCC's duty of good faith applies to           2.209 comment 2, the court of appeals held that the UCC's
the “enforcement and performance” of contracts, including           good faith “duties apply not only to the performance of the
“modifications” of those contracts, but does not apply to the       contract but also to the formation and modification of those
“formation” of contracts. Thus, El Paso reasons that because        agreements.” 18 But comment 2 does not mention forming
a final release of liability constitutes neither the “enforcement   an agreement; it refers only to modifications. The comment
and performance” of a contract for sale of goods nor a              states that modifications made under subsection 2.209(a):
“modification” of an agreement, but rather is the “formation”
of a separate contract releasing the parties' obligations to each
other, the UCC's duty of good faith does not apply. We agree.         [m]ust meet the test of good faith imposed by this Act.
                                                                      The effective use of bad faith to escape performance on
 [4] Buying and selling oil and gas pursuant to take-or-pay           the original contract terms is barred, and the extortion of
gas purchase agreements is a transaction involving “goods”            a “modification” without legitimate commercial reason is

within the meaning of the UCC's good faith provisions. 9               ineffective as a violation of the duty of good faith. 19
Accordingly, El Paso has a statutory obligation to act in good      It further states that:
faith in the performance, enforcement and modification of
                                                                      [t]he test of “good faith” between merchants or as against
these agreements. 10 But that does not mean that El Paso is           merchants includes “observance of reasonable commercial
under a statutory good faith obligation when it procures or           standards of fair dealing in the trade” (Section 2–103), and
forms those contracts.                                                may in some situations require an objectively demonstrable
                                                                      reason for seeking a modification. 20
 [5]    [6] The court of appeals concluded that the good
faith obligation in sections 1.203 and 2.209, as defined in
                                                                    Neither section 2.209 nor the comments refer to a duty of
section 2.103, imposed a duty of good faith in procuring
                                                                    good faith in the formation of a contract. Rather, the express
the final termination letter on El Paso. True, section
                                                                    language of section 2.209(a) and the comments establish that
1.203 states that “[e]very contract or duty within this title
                                                                    this subsection's duty of good faith applies only to contract
imposes an obligation of good faith in its performance or
                                                                    “modifications.” And as discussed above, a release of liability
enforcement.” 11 And section 2.103 further defines “good            is not an agreement to modify a contract but is an agreement
faith” in the case of a merchant as “honesty in fact and


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

to completely relinquish the parties' performance obligations         matter of law. In short the court of appeals held that El Paso
to each other.                                                        waived the issue. We disagree.

This is not to say that there are no constraints on a party's         [9]   Whether or not a contract is ambiguous is a question of
behavior in the negotiation and formation of a contract.              law for the court. 27 Accordingly, when the court of appeals
The UCC's doctrine of unconscionability, for example, is              held in its original opinion that the termination letter was an
intended to apply to the formation of contracts. 21 Further,          unambiguous release, it resolved a legal issue. And the court
subsections 2.209(b) and (d) apply to any “modification or            of appeals erred in concluding on rehearing that El Paso had
rescission” of a contract. 22 But subsection 2.209(a) and             to affirmatively challenge on appeal the trial court's finding
corresponding comment 2's good faith obligation are limited           of ambiguity. Furthermore, the legal issue of ambiguity was
                                                                      subsumed under El Paso's principal complaint that the release
to “modifications” only. 23
                                                                      was not unconscionable, but rather should be enforced as
                                                                      written to bar Doornbos's claims.
Because the court of appeals' only basis for holding the
Minco final termination letter unenforceable was its bad faith
                                                                      In this case, the trial court made a factual finding
determination, and because we conclude that the UCC does
                                                                      of ambiguity. The finding arose out of a summary
not impose a good faith obligation on the formation of a
                                                                      judgment proceeding. After hearing arguments, the trial
final release, the Minco termination letter releases El Paso
                                                                      court issued an “Order Finding Unconscionability as a
from the Agreement's take-or-pay obligations. We therefore
                                                                      Matter of Law,” in which it held unenforceable the various
reverse the court of appeals' judgment as to Minco and render
                                                                      amendments, modifications and releases, including the
judgment that Minco take nothing.
                                                                      Doornbos termination letter. Although ostensibly rendered
                                                                      as a partial summary judgment, the court filed findings of
                                                                      fact and conclusions of law in support of its order and there
                      *315 DOORNBOS                                   mentioned that the Doornbos final termination letter was
                                                                      ambiguous. The trial judge stated:
 [8] As to Doornbos, the trial court did not make a
bad faith determination, but only held that the release                 the Court finds an ambiguity in the “Agreements to
was unconscionable and therefore unenforceable. Unique to               Terminate Contracts” regarding the phrase, “All past
Doornbos, the trial court found the termination letter to be            liabilities that might exist between the parties are waived.”
ambiguous, but assumed that it was not, in order to reach the           The Court makes no ruling herein as to whether such
unconscionability issue. The only issue before us is whether            language is sufficient to operate as a release of past take-
the court of appeals properly determined that El Paso waived            or-pay damages. However, since El Paso takes the position
the release issue by failing to object to the trial court's finding     that the language was intended to release past take-or-pay
of ambiguity.                                                           liabilities, the Court finds that the effect of such a release
                                                                        of past take-or-pay damages without any corresponding
Initially, the court of appeals reversed that part of the               benefit to Plaintiffs would be so one-sided as to constitute
trial court's judgment holding the release unconscionable               the “substantive abuse” described in Wade v. Austin at the
and awarding Doornbos damages and attorney's fees, and                  time of its execution. (emphasis added).
rendered judgment for El Paso. 24 In doing so, the court
                                                                      Thus the court did not resolve the ambiguity because it also
of appeals concluded that the trial court improperly found
                                                                      determined that the agreement's operation as a release was
that the Doornbos release was ambiguous, and that the
                                                                      unconscionable. Regardless, such a finding cannot form an
terms of the release unambiguously encompassed any take-
                                                                      alternative basis for its *316 judgment. In fact, the finding
or-pay liabilities. 25 But on rehearing, the court of appeals         is immaterial to the court's final judgment.
concluded that it had “wrongly raised and resolved the factual
question of whether the [Doornbos termination letter] was a           First, to decide as the trial court did, that the Doornbos
release.” 26 The court reasoned that because the trial court          termination letter was unconscionable and therefore void,
refused to rule on whether the termination letter was a release,      it necessarily decided that the release did exactly what
it was El Paso's burden to come forward with a challenge              it purported to do—release El Paso. That is to say, by
on appeal establishing that the document was a release as a           concluding that the termination letter was unconscionable,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

the court necessarily assumed that the agreement operated
to release El Paso's take-or-pay obligations and thereby                                          CONCLUSION
impliedly resolved the supposed ambiguity in El Paso's
favor. A release that may not actually be a release because              As a matter of law, the UCC does not impose a good faith
it is ambiguous cannot be said to be unconscionable                      obligation upon the formation of a final release. Thus, Minco's
as a matter of law. Thus the trial court's controlling                   termination letter is enforceable and releases El Paso from the
conclusion of unconscionability rendered the ambiguity                   Minco agreement's take-or-pay obligations. Because El Paso
finding unnecessary to its judgment. As such, El Paso's failure          did not waive its complaint that the Doornbos termination
                                                                         letter is also enforceable, we conclude that El Paso is
to specifically challenge it did not constitute a waiver. 28
                                                                         also released from the Doornbos agreement's take-or-pay
                                                                         obligations. Consequently, we reverse the court of appeals'
 [10] Further, we liberally construe issues presented to obtain
                                                                         judgment and render judgment that Minco and Doornbos take
a just, fair, and equitable adjudication of the rights of the
                                                                         nothing.
litigants. 29 In the court of appeals, El Paso argued that “the
evidence does not support a finding of unconscionability. Had
the trial court properly enforced the amendments and releases,
[Doornbos's] claims would be barred.” Liberally construing               Justice OWEN and Justice HANKINSON did not participate
this argument to avoid waiver, we conclude that El Paso                  in the decision.
preserved its complaint that the trial court erred in failing to
                                                                         Parallel Citations
enforce the releases. 30
                                                                         144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex.
                                                                         Sup. Ct. J. 116


Footnotes
1      TEX. BUS. & COM.CODE §§ 1.101 et seq.
2      See 964 S.W.2d 54, 66. Minco and Doornbos do not challenge the court of appeals' unconscionability holding in this Court.
3      See id.
4      See id. at 72–73.
5      Barber v. Colorado I.S.D., 901 S.W.2d 447, 450 (Tex.1995).
6      See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 697 (Tex.1994).
7      See TEX. BUS. & COM.CODE §§ 1.203, 2.209.
8      Id. § 1.201(19)..
9      See TEX. BUS. & COM.CODE §§ 2.102, 2.107; see also Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565,
       577 (Tex.1996) (Phillips, C.J., concurring and dissenting).
10     See TEX. BUS. & COM.CODE §§ 1.203, 2.209 cmt. 2.
11     Id. § 1.203.
12     Id. § 2.103; see also TEX. BUS. & COM.CODE § 1.201(19) (generally defining “good faith” as honesty in fact in the conduct or
       transaction concerned).
13     See Tolbert v. First Nat'l Bank of Oregon, 312 Or. 485, 823 P.2d 965, 969 (1991) (“Although every contract imposes upon each a
       duty of good faith and fair dealing in its performance and its enforcement, that duty does not to extend to formation of the contract.”)
       (citations omitted).
14     See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.1997).
15     See BLACK'S LAW DICTIONARY 1289 (7 th ed.1999) (defining release as “liberation from an obligation, duty, or demand; the
       act of giving up a right or claim to the person against whom it could have been enforced.”).
16     TEX. BUS. & COM.CODE § 2.209(a).
17     964 S.W.2d at 67.
18     Id. (emphasis added).
19     TEX. BUS. & COM.CODE § 2.209 cmt. 2.
20     Id.



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        6
El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (1999)
144 Oil & Gas Rep. 197, 40 UCC Rep.Serv.2d 84, 43 Tex. Sup. Ct. J. 116

21     See TEX. BUS. & COM.CODE § 2.302. (“If the court as a matter of law finds the contract ... to have been unconscionable at the
       time it was made the court may refuse to enforce the contract....”).
22     See TEX. BUS. & COM.CODE § 2.209(b), (d).
23     See id. § 2.209(d) cmt.2.
24     See 964 S.W.2d at 71.
25     See id. at 66.
26     964 S.W.2d at 72.
27     See National Union Fire Ins. Co. v. CBI Indus. Inc., 907 S.W.2d 517, 520 (Tex.1995).
28     See TEX.R.APP. P. 44.1(a)(1).
29     See Consolidated Engineering Co. v. Southern Steel Co., 699 S.W.2d 188, 192 (Tex.1985) (holding that issue was adequately
       preserved when issues “are so inextricably entwined that one cannot be mentioned without automatically directing attention to the
       other.”).
30     See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Ginther v. Taub, 675 S.W.2d 724, 728 (Tex.1984).


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  7
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

                                                                  Affirmed in part and reversed in part.
                     318 S.W.3d 867
                 Supreme Court of Texas.
                                                                   West Headnotes (25)
        ERI CONSULTING ENGINEERS, INC.
         and Larry G. Snodgrass, Petitioners,
                         v.                                        [1]    Fraud
    J. Mark SWINNEA, Brady Environmental, Inc.,                               Elements of compensation
      and Malmeba Company, Ltd., Respondents.                             Principal and Agent
                                                                              Nature of agent's obligation
            No. 07–1042. | Argued Dec. 17,                                Where willful actions which are breaches
          2009. | Decided May 7, 2010.                                    of fiduciary duty also amount to fraudulent
           | Rehearing Denied Oct. 1, 2010.                               inducement, contractual consideration received
                                                                          by fiduciary is recoverable in equity, regardless
Synopsis
                                                                          of whether actual damages are proven, subject to
Background: Employer and its shareholder brought action
                                                                          certain limits; agency principles, that forfeiture
against former employee, his company, and employer's
                                                                          of compensation discourages agent from taking
landlord to recover for fraud, breach of contract, breach of
                                                                          personal advantage of his position of trust in
fiduciary duty, and conspiracy in connection with buyout
                                                                          every situation, no matter the circumstances,
agreement involving employee's sale of stock back to
                                                                          whether principal may be injured or not, and
employer without disclosing formation of business and
                                                                          that forfeiture removes any incentive for agent
shareholder's transfer of his partnership interest in landlord.
                                                                          to stray based on possibility that principal
Defendants filed counterclaim for breach of contract and
                                                                          will be unharmed, apply where fiduciary takes
conspiracy, and landlord alleged anticipatory breach of
                                                                          advantage of his position of trust to induce
lease agreement. Following a bench trial, the 114th Judicial
                                                                          principal to enter into contract. Restatement
District Court, Smith County, Cynthia S. Kent, J., entered
                                                                          (Second) of Agency § 469.
judgment in favor of plaintiffs, awarding them actual
damages of $1,020,700, and ordered defendant to pay                       1 Cases that cite this headnote
plaintiff $1,000,000 in exemplary damages. Defendants
appealed. The Court of Appeals, Sam Griffith, J., 236 S.W.3d
                                                                   [2]    Fraud
825, affirmed in part, and reversed and rendered in part.
                                                                              Elements of compensation
Plaintiffs petitioned for review which was granted.
                                                                          Courts may fashion equitable remedies such
                                                                          as profit disgorgement and fee forfeiture to
                                                                          remedy a breach of fiduciary duty; for instance,
Holdings: The Supreme Court, Green, J., held that:
                                                                          courts may disgorge all ill-gotten profits from
                                                                          a fiduciary when a fiduciary agent usurps an
[1] contractual consideration received by fiduciary were
                                                                          opportunity properly belonging to a principal, or
recoverable in equity;
                                                                          competes with a principal.

[2] testimony was properly admitted under collateral                      12 Cases that cite this headnote
agreement exception to parol evidence rule;

                                                                   [3]    Fraud
[3] lost profit damage award of $300,000 was not supported
                                                                              Fiduciary or confidential relations
by substantial evidence; and
                                                                          Even if a fiduciary does not obtain a benefit from
[4] former employee's company was not jointly liable as a                 a third party by violating his duty, he may be
conspirator.                                                              required to forfeit the right to compensation for
                                                                          his work.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

                                                                     Testimony of former employee of company
        4 Cases that cite this headnote                              conceding that lease agreement was
                                                                     consideration for buyout agreement as a
 [4]    Fraud                                                        whole was properly admitted under collateral
            Elements of compensation                                 agreement exception to parol evidence rule; if
                                                                     the parties agreed that lease obligation was to be
        Although forfeiture of contractual consideration
                                                                     additional consideration for buyout, then such an
        may have a punitive effect like forfeiture of
                                                                     agreement was consistent collateral agreement.
        compensation, it may nevertheless be necessary
                                                                     Restatement (First) of Contracts § 240 comment.
        to protect fiduciary relationships; fiduciary who
        breaches his duty should not be insulated from               Cases that cite this headnote
        forfeiture if the party whom he fraudulently
        induced into contract is ignorant about the fraud,
        or fails to suffer harm, and innocent party should    [8]    Evidence
        not be put into a difficult choice regarding                     Contracts in General
        termination of the contract upon discovering the             Evidence
        breach of duty.                                                  Prior and Contemporaneous Collateral
                                                                     Agreements
        3 Cases that cite this headnote
                                                                     General rule for an unambiguous contract is
                                                                     that evidence of prior or contemporaneous
 [5]    Equity                                                       agreements is inadmissible as parol evidence;
            Grounds of jurisdiction in general                       an exception exists for consistent collateral
        Where equitable remedies exist, remedy of                    agreements.
        forfeiture must fit the circumstances presented.
                                                                     3 Cases that cite this headnote
        5 Cases that cite this headnote
                                                              [9]    Evidence
 [6]    Principal and Agent                                              Prior and Contemporaneous Collateral
            Nature of agent's obligation                             Agreements
        Factors which are relevant to whether plaintiff              Parol evidence rule does not preclude
        is entitled to equitable forfeiture include gravity          enforcement of prior or contemporaneous
        and timing of the breach of duty, level of intent            agreements which are collateral to an integrated
        or fault, whether principal received any benefit             agreement and which are not inconsistent with
        from fiduciary despite breach, centrality of the             and do not vary or contradict the express or
        breach to the scope of fiduciary relationship,               implied terms or obligations thereof.
        any threatened or actual harm to the principal,
                                                                     3 Cases that cite this headnote
        and adequacy of other remedies, including any
        punitive damages award; above all, the remedy
        must fit the circumstances and work to serve          [10]   Evidence
        the ultimate goal of protecting relationships of                 Prior and Contemporaneous Collateral
        trust. Restatement (Third) of the Law Governing              Agreements
        Lawyers § 49; Restatement (Second) of Trusts §               Collateral agreement between parties concerning
        243 comment.                                                 the relationship of several distinct obligations
                                                                     between them falls within exception to parol
        1 Cases that cite this headnote
                                                                     evidence for collateral agreements.

 [7]    Evidence                                                     2 Cases that cite this headnote
            Distinct consideration
                                                              [11]   Conspiracy


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

             Damages                                                Although supporting documentation for lost
        Damages                                                     profits may affect the weight of the evidence, it is
           Particular cases                                         not necessary to produce in court the documents
                                                                    supporting the opinions or estimates.
        Fraud
            Amount awarded                                          8 Cases that cite this headnote
        Lost profit damages award of $300,000 was
        not supported by substantial evidence in action
                                                             [15]   Damages
        by former employer and its shareholder against
                                                                       Loss of profits
        former employee for fraud, breach of contract,
        breach of fiduciary duty, and conspiracy,                   Contrasting revenue from a time period
        although shareholder's uncontradicted testimony             immediately before the period at issue is an
        indicated that company's net profit margin                  established method of proving revenue for a lost
        from account which former employee caused                   profit damages calculation.
        company to lose was 25-30%, company
                                                                    3 Cases that cite this headnote
        averaged $19,833 in monthly revenue from
        account, and method of comparing revenue
        from before and after loss of account was            [16]   Damages
        legally adequate; owner presented evidence of                  Loss of Profits
        estimated lost revenue over the 33–month period             Discrepancy between two reasonably certain lost
        of $595,337, 30% of which was $178,601.                     profit amounts does not defeat recovery of such
                                                                    damages.
        1 Cases that cite this headnote
                                                                    3 Cases that cite this headnote
 [12]   Damages
           Loss of profits                                   [17]   Conspiracy
        Recovery for lost profits does not require that                 Damages
        the loss be susceptible of exact calculation, but           Damages
        injured party must do more than show that they                 Loss of profits and expenses incurred
        suffered some lost profits; amount of the loss              Fraud
        must be shown by competent evidence with                        Measure in General
        reasonable certainty.
                                                                    Former employee did not meet his burden to
        20 Cases that cite this headnote                            provide at least some evidence that former
                                                                    employer's otherwise complete lost profit
                                                                    damages calculation was actually inadequate
 [13]   Damages
                                                                    because of a necessary credit or additional
           Loss of profits
                                                                    expense, in former employer's action against him
        What is reasonably certain evidence of lost                 for fraud, breach of contract, breach of fiduciary
        profits is a fact-intensive determination; as a             duty, and conspiracy in connection with buyout
        minimum, opinions or estimates of lost profits              agreement, although customer gave former
        must be based on objective facts, figures, or data          employer ultimatum to chose between it and
        from which the amount of lost profits can be                another customer because of former employee;
        ascertained.                                                nothing indicated that former employer could
                                                                    not work with both customers, thus, profits from
        23 Cases that cite this headnote
                                                                    former employer's work with one customer were
                                                                    not required to be offset against lost profits
 [14]   Damages                                                     caused by ultimatum.
           Loss of profits




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

                                                                     between former employee's breach of fiduciary
        1 Cases that cite this headnote                              duty and the loss of profits to former employer.

                                                                     Cases that cite this headnote
 [18]   Damages
           Loss of profits and expenses incurred
        Damages                                               [22]   Conspiracy
           Necessity of proof as to damages in general                   Damages
        Plaintiff bears the burden of providing evidence             Company formed by former employee and his
        supporting a single complete calculation of lost             wife was not jointly liable as a conspirator for
        profits, which may often require certain credits             punitive damages and forfeiture of contractual
        and expenses.                                                consideration for former employee's fraud,
                                                                     breach of contract, or breach of fiduciary
        3 Cases that cite this headnote                              duty; there was no evidence that any of the
                                                                     damages awarded by the trial court occurred
                                                                     as the proximate result of any involvement
 [19]   Damages
                                                                     by company, and no meeting of the minds
           Loss of profits
                                                                     between former employee and company could
        Defendant properly bears the burden of
                                                                     have occurred involving the actions causing
        providing at least some evidence suggesting that
                                                                     former employer lost profits because company
        an otherwise complete lost profits calculation is
                                                                     did not exist when employee committed breach,
        in fact missing relevant credit; were this not so,
                                                                     having been formed approximately six-months
        every facially adequate calculation of lost profits
                                                                     after employee's departure.
        would be susceptible to an unsubstantiated
        challenge that something is missing.                         Cases that cite this headnote

        8 Cases that cite this headnote
                                                              [23]   Conspiracy
                                                                         Nature and Elements in General
 [20]   Damages
                                                                     Conspiracy
           Loss of profits and expenses incurred
                                                                         Object
        For purposes of calculating lost profit damages,
                                                                     Actionable civil conspiracy requires specific
        it is not necessarily the case that a company will
                                                                     intent to agree to accomplish an unlawful
        incur increased expense or overhead, especially
                                                                     purpose or a lawful purpose by unlawful means.
        where a corporation was already profitable at the
        time damages began, and evidence supports an                 2 Cases that cite this headnote
        inference that it could have performed profitable
        services using only its existing resources.
                                                              [24]   Conspiracy
        1 Cases that cite this headnote                                  Object
                                                                     One of the elements of conspiracy is a meeting
 [21]   Labor and Employment                                         of the minds on the object or course of action;
            Weight and sufficiency                                   another is actual damages as the proximate result
                                                                     of the conspiracy.
        Former employee's testimony that his
        involvement with one customer could harm                     3 Cases that cite this headnote
        employer's relationship with its customer,
        and that a severance of former employer's
        relationship with its customer would negatively       [25]   Equity
        affect former employer's revenues, was legally                   Grounds of jurisdiction in general
        sufficient to establish a straight-forward link



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       4
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

         Equitable remedies to protect relationships of
         trust encompasses the ability to fashion such             Snodgrass and ERI purchased Swinnea's interest in ERI in
         remedies against those who would conspire to              2001. ERI paid Swinnea $497,500 to redeem Swinnea's ERI
         abuse such relationships but, the remedy of               stock, and Snodgrass transferred his half-interest in Malmeba
         forfeiture must fit the circumstances presented.          to Swinnea. ERI agreed to employ Swinnea for six years, and
                                                                   Swinnea agreed not to compete with ERI. At the same time,
         1 Cases that cite this headnote                           ERI agreed to continue leasing from Malmeba for six *871
                                                                   years. 1

                                                                   Unknown to Snodgrass, the wives of Swinnea and Chris
Attorneys and Law Firms                                            Power, an ERI employee, had created a new company
                                                                   called Air Quality Associates a month before Swinnea
 *870 Sarah B. Duncan, Elissa Gail Underwood, Mike A.
                                                                   and Snodgrass executed the buyout agreement. Air Quality
Hatchell, Susan A. Kidwell, Locke Lord Bissell & Liddell,
                                                                   Associates was created to perform mold abatement, but
LLP, Austin, TX, Deborah J. Race, Ireland Carroll & Kelley,
                                                                   later engaged in asbestos abatement as a contractor even
P.C., Roger W. Anderson, Gillen & Anderson, Tyler, TX, for
                                                                   though neither wife had experience in the asbestos abatement
Petitioners.
                                                                   field. Swinnea did not disclose the existence of Air Quality
Gregory D. Smith, S. Justin Lindley, Ramey & Flock,                Associates to Snodgrass during the ERI buyout negotiations.
P.C., Tyler, TX, Sheral Kniffin Maloy, El Paso, TX, for            In fact, because Swinnea believed Snodgrass would “run
Respondents.                                                       [ERI] into the ground,” Swinnea told Power to “[b]e patient
                                                                   because we can buy this company back 50 cents on the
Opinion                                                            dollar.” The trial court found that “Swinnea's placement of
                                                                   his wife, Dawn Swinnea, and Tracy Power as principals
Justice GREEN delivered the opinion of the Court.
                                                                   of Air Quality Associates, Inc. was deceptive, a sham and
The principal question in this case is whether consideration       constituted fraud.”
received for the sale of a business interest is subject to
equitable forfeiture as a remedy for breach of fiduciary duty.     After the buyout, Swinnea's revenue production as an
We hold that when a partner in a business breached his             ERI employee dropped 30%–50%. Snodgrass testified that
fiduciary duty by fraudulently inducing another partner to buy     although Swinnea's supervisory responsibilities were to
out his interest, the consideration received by the breaching      cease under their agreement, Swinnea's revenue production
party for his interest in the business is subject to forfeiture    was to remain the same, if not increase. Soon thereafter,
as a remedy for the breach, in addition to other damages           Snodgrass learned about Swinnea's relationship with Air
that result from the tortious conduct. Here, the trial court       Quality Associates from one of ERI's asbestos contractors,
ordered equitable forfeiture, but the court of appeals reversed,   Merico, with which Air Quality Associates was competing.
concluding that forfeiture was not an available remedy. We         Because of the personal relationship between the individuals
reverse the court of appeals' judgment in part and remand the      involved with ERI and Air Quality Associates, Merico told
case to that court for further proceedings consistent with this    Snodgrass that Merico would no longer work with ERI if ERI
opinion.                                                           were to accept bids from Air Quality Associates on asbestos
                                                                   abatement projects. ERI had been accepting bids from Air
                                                                   Quality Associates without Snodgrass knowing of Swinnea's
                                                                   or Power's relationship with Air Quality Associates.
                           I. Facts
                                                                   Power and his wife later bought out the Swinneas' interest
Larry G. Snodgrass and J. Mark Swinnea owned equal
                                                                   in Air Quality Associates. ERI subsequently worked with
interests in two business entities, ERI Consulting Engineers,
                                                                   Air Quality Associates, while its work with Merico declined.
Inc., and Malmeba Company, Ltd., which they operated
                                                                   Meanwhile, Swinnea and his wife formed a new company,
together for approximately ten years. ERI is a small
                                                                   Brady Environmental. The Swinneas told Snodgrass that
consulting company that manages asbestos abatement
                                                                   Brady Environmental was going to clean homes and air
projects for contractors. It leased office space from Malmeba,
                                                                   ducts. However, Brady Environmental began performing
a partnership that owned the building.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

asbestos abatement using the Resilient Floor Covering              a conspiracy between Swinnea and Brady Environmental. Id.
Institute method. Evidence suggests that ERI's clients' use        at 841–42.
of this method impacted ERI's business because RFCI
does not require a consultant like ERI. Although he was            Swinnea does not dispute his liability for fraud, breach of
employed by ERI, Swinnea encouraged ERI's clients to               contract, or breach of fiduciary duty. Rather, he disputes the
use RFCI instead, contrary to ERI's interest and policy.           damages the trial court awarded. He asserts that the forfeiture
After the relationship between Swinnea and ERI deteriorated,       award is unsupported by law. He also asserts that the lost
Snodgrass ultimately fired Swinnea, releasing him from             profits award is unsupported by legally sufficient evidence.
his non-compete obligations. Swinnea obtained a license to         Brady Environmental primarily disputes whether it can be
perform asbestos consulting work the next day and began            jointly liable for any of the particular damages awarded by the
working for Brady Environmental as a consultant. Snodgrass         trial court regardless of whether it later conspired in certain
moved ERI out of Malmeba's building and pursued this               wrongful acts.
lawsuit with ERI against Swinnea, Malmeba, and Brady
Environmental.

                                                                                     II. Equitable Forfeiture
After a bench trial, the trial court found for Snodgrass and ERI
on their claims for statutory fraud in a real estate and stock      [1] The primary question we must address is whether
transaction, common law fraud, breach of the non-compete           forfeiture of contractual consideration is available as a
clause in the contract, as well as for breach of fiduciary duty.   remedy against Swinnea. We have previously upheld
It rendered judgment awarding ERI and Snodgrass combined           equitable remedies for breach of fiduciary duty. E.g., Burrow
damages of $1,020,700, and $1 million in exemplary *872            v. Arce, 997 S.W.2d 229, 237–45 (Tex.1999) (upholding
damages. The non-exemplary damages awarded by the                  remedy of forfeiture upon attorney's breach of fiduciary duty).
trial court consisted of both equitable forfeiture and actual      In Kinzbach Tool Co. v. Corbett–Wallace Corp., we stated the
damages: forfeiture of $437,500, a portion of the $497,500         principle behind such remedies:
paid to Swinnea by ERI; forfeiture of $150,000, the value
of Snodgrass's one-half interest in Malmeba transferred to           It is beside the point for [Defendant] to say that [Plaintiff]
Swinnea; forfeiture of $133,200, constituting the sum of the         suffered no damages because it received full value for what
lease payments from ERI to Malmeba after the buyout; and             it has paid and agreed to pay.... It would be a dangerous
$300,000 as ERI's lost profits from its business relationship        precedent for us to say that unless some affirmative loss
with Merico. The trial court found that a civil conspiracy           can be shown, the person who has violated his fiduciary
existed between Swinnea and Brady Environmental, and                 relationship with another may hold on to any secret gain
held Brady Environmental jointly and severally liable with           or benefit he may have thereby acquired. It is the law that
Swinnea for the damages.                                             in such instances if the fiduciary “takes any gift, gratuity,
                                                                     or benefit in violation of his duty, or acquires any interest
The court of appeals reversed and rendered judgment in               adverse to his principal, without a full disclosure, it is a
favor of Swinnea because it found the evidence “legally              betrayal of his trust and a breach of confidence, and he must
insufficient to support the damage awards.” 236 S.W.3d               account to his principal for all he has received.”
825, 832 (Tex.App.-Tyler 2007). In particular, the court of
                                                                   138 Tex. 565, 160 S.W.2d 509, 514 (1942) (quoting United
appeals found that ERI failed to prove any actual damages.
                                                                   States v. Carter, 217 U.S. 286, 306, 30 S.Ct. 515, 54 L.Ed. 769
Id. at 841. It found that the equitable remedy of forfeiture
                                                                   (1910)). We later reiterated that a fiduciary may be punished
was unavailable because there was no fee paid to Swinnea
                                                                   for breaching his duty: “The main purpose of forfeiture
to be forfeited. Id. It concluded further that ERI failed to
                                                                   is not to compensate an injured principal.... Rather, *873
prove that Swinnea obtained any ill-gotten gains subject
                                                                   the central purpose ... is to protect relationships of trust by
to disgorgement. Id. It determined that the lease payments
                                                                   discouraging agents' disloyalty.” Burrow, 997 S.W.2d at 238.
were not recoverable because the evidence that the lease
payments were intended as consideration for the buyout was
                                                                    [2]   [3]    Accordingly, courts may fashion equitable
“incompetent parol evidence.” Id. at 835. Finally, the court
                                                                   remedies such as profit disgorgement and fee forfeiture to
of appeals concluded that there was no basis for joint liability
                                                                   remedy a breach of fiduciary duty. For instance, courts
as to Brady Environmental because there was no evidence of
                                                                   may disgorge all ill-gotten profits from a fiduciary when a


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

fiduciary agent usurps an opportunity properly belonging to          applies equally to the relationship of trust at issue here and the
a principal, or competes with a principal. See, e.g., Johnson        duties Swinnea owed to ERI and Snodgrass. We cited section
v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex.2002)           469 of the Restatement (Second) of Agency, which states that
(stating the rule that courts may disgorge any profit where “an      if “conduct [that is a breach of his duty of loyalty] constitutes
agent diverted an opportunity from the principal or engaged          a wilful and deliberate breach of his contract of service, he
in competition with the principal, [and] the agent or an             is not entitled to compensation even for properly performed
entity controlled by the agent profited or benefitted in some        services for which no compensation is apportioned.” Id. at
way”). Similarly, even if a fiduciary does not obtain a benefit      237. We also stated:
from a third party by violating his duty, a fiduciary may be
required to forfeit the right to compensation for the fiduciary's                 [T]he possibility of forfeiture of
work. See, e.g., Burrow, 997 S.W.2d at 237 (“[A] person                           compensation discourages an agent
who renders service to another in a relationship of trust may                     from taking *874 personal advantage
be denied compensation for his service if he breaches that                        of his position of trust in every
trust.”). The difficulty comes in categorizing the damages                        situation no matter the circumstances,
awarded in this case. Here, the damages awarded by the trial                      whether the principal may be injured
court were not ill-gotten profits from an outside opportunity                     or not. The remedy of forfeiture
or external competition, or compensation for work done by                         removes any incentive for an agent to
the fiduciary. Rather, the trial court returned a significant part                stray from his duty of loyalty based on
of the contractual consideration paid by ERI and Snodgrass to                     the possibility that the principal will
Swinnea as part of the buyout agreement. The situation arises                     be unharmed or may have difficulty
because here the contracting party, Swinnea, was a fiduciary,                     proving the existence or amount of
such that we must consider whether under the circumstances                        damages.
an equitable remedy may cross the line from actual damages
                                                                     Id. at 238. The same principles apply to circumstances where
for breach of contract or fraud (redressing specific harm) to
                                                                     a fiduciary takes advantage of his position of trust to induce a
further, equitable return of contractual consideration.
                                                                     principal to enter into a contract. The remedy of forfeiture is
                                                                     necessary to prevent such abuses of trust, regardless of proof
The trial court found Swinnea liable for fraudulent
                                                                     of actual damages.
inducement as to the buyout agreement, and Swinnea does not
challenge this liability. The trial court also found that Swinnea
                                                                      [4] Although forfeiture of contractual consideration may
owed fiduciary duties both to ERI and to Snodgrass. It follows
                                                                     “have a punitive effect” like forfeiture of compensation, id.
that Swinnea's actions in fraudulently inducing the buyout
                                                                     at 240, it may nevertheless be necessary to protect fiduciary
agreement contracts were willful breaches of his fiduciary
                                                                     relationships. As we said in the attorney-client context:
duty. We hold that where willful actions constituting breach
of fiduciary duty also amount to fraudulent inducement,                           An attorney who has clearly and
the contractual consideration received by the fiduciary is                        seriously breached his fiduciary duty
recoverable in equity regardless of whether actual damages                        to his client should not be insulated
are proven, subject to certain limiting principles set out below.                 from fee forfeiture by his client's
                                                                                  ignorance of the matter. Nor should
The situation in this case is akin in many respects to the                        an attorney who has deliberately
fee forfeiture scenario between a principal and agent, which                      engaged in professional misconduct
we discussed at length in Burrow, 997 S.W.2d at 237–45.                           be allowed to put his client to the
In that case, former clients sued their attorneys alleging                        choice of terminating the relationship
breach of fiduciary duty arising from settlement negotiations                     and risking that the outcome of the
in a previous lawsuit. Id. at 232–33. We held that “a client                      litigation may be adversely affected, or
need not prove actual damages in order to obtain forfeiture                       continuing the relationship despite the
of an attorney's fee for the attorney's breach of fiduciary                       misconduct.
duty to the client.” Id. at 240. We repeated that “the central
purpose of the remedy is to protect relationships of trust from      Id. at 244. The same reasoning applies here: a fiduciary who
an agent's disloyalty or other misconduct.” Id. That policy          breaches his duty should not be insulated from forfeiture



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ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

if the party whom he fraudulently induced into contract is                    whole trust or related only to a part of
ignorant about the fraud, or fails to suffer harm. Likewise,                  the trust property; (4) whether or not
the innocent party should not be put into a difficult choice                  the breach of trust occasioned any loss
regarding termination of the contract upon discovering the                    and whether if there has been a loss it
breach of duty.                                                               has been made good by the trustee; (5)
                                                                              whether the trustee's services were of
 [5]     [6] Where equitable remedies exist, however, “the                    value to the trust.
remedy of forfeiture must fit the circumstances presented.” Id.
at 241. In Burrow, we listed several factors for consideration   Id. at 243. Several of these factors are also relevant in this
when fashioning a particular equitable forfeiture remedy in      context. The gravity and timing of the breach of duty, the
the context of attorney-client relationships:                    level of intent or fault, whether the principal received any
                                                                 benefit from the fiduciary despite the breach, the centrality
   “[T]he gravity and timing of the violation, its wilfulness,   of the breach to the scope of the fiduciary relationship, and
   its effect on the value of the lawyer's work for the client,  any threatened or actual harm to the principal are relevant.
   any other threatened or actual harm to the client, and        Likewise, the adequacy of other remedies—including any
   the adequacy of other remedies.” These factors are to be      punitive damages award—is also relevant. Above all, the
   considered in determining whether a violation is clear and    remedy must fit the circumstances and work to serve the
   serious, whether forfeiture of any fee should be required,    ultimate goal of protecting relationships of trust.
   and if so, what amount. The list is not exclusive. The
   several factors embrace broad considerations which must       There is no indication the trial court followed these principles
   be weighed together and not mechanically applied. For         in fashioning its award. Accordingly, we direct the court of
   example, the “wilfulness” factor requires consideration       appeals to remand the case to the trial court for consideration
   of the attorney's culpability generally; it does not simply   of these factors upon resolution of the issues remaining for
   limit forfeiture to situations in which the attorney's breach the court of appeals. 2
   of duty was intentional. The adequacy-of-other-remedies
   factor does not preclude forfeiture when a client can be
   fully compensated by damages. Even though the main
   purpose of the remedy is not to compensate the client, if             III. Evidence of Contractual Consideration
   other remedies do not afford the client full compensation
                                                                  [7] We next consider whether the trial court properly
   for his damages, forfeiture may be considered for that
                                                                 admitted undisputed testimony offered to show that the lease
   purpose.
                                                                 agreement was intended to be consideration for the buyout
Id. at 243–44 (quoting RESTATEMENT (THIRD) OF THE                agreement, and thus subject to potential forfeiture under our
LAW GOVERNING LAWYERS § 49 (Proposed Final Draft                 analysis above. The court of appeals concluded that such
No. 1, 1996)). We also cited comment c to section 243 of the     testimony was “incompetent parol evidence.” 236 S.W.3d at
Restatement (Second) of Trusts:                                  835. We disagree.

            It is within the discretion of the                     [8]    [9]     [10] The general rule for an unambiguous
            court whether the trustee who has                     contract is that evidence of prior or contemporaneous
            committed a breach of trust shall                     agreements is inadmissible as parol evidence. David J.
            receive full compensation or whether                  Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008)
            his compensation shall be reduced or                  (per curiam). However, an exception exists for consistent
            denied. In the exercise of the court's                collateral agreements. As we stated over half a century ago
            discretion the following factors are                  in Hubacek v. Ennis State Bank, the parol evidence rule
            considered: (1) whether *875 the                      “does not preclude enforcement of prior or contemporaneous
            trustee acted in good faith or not;                   agreements which are collateral to an integrated agreement
            (2) whether the breach of trust was                   and which are not inconsistent with and do not vary
            intentional or negligent or without                   or contradict the express or implied terms or obligations
            fault; (3) whether the breach of trust                thereof.” 159 Tex. 166, 317 S.W.2d 30, 32 (1958);
            related to the management of the                      accord Haden, 266 S.W.3d at 451 (“Under the exception,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

parol evidence can be used to demonstrate a prior or                           loss must be shown by competent
contemporaneous agreement that is both collateral to and                       evidence with reasonable certainty.
consistent with a binding agreement, and that does not                         What constitutes reasonably certain
vary or contradict the agreement's express or implied terms                    evidence of lost profits is a
or obligations.”). A collateral agreement between parties                      fact intensive determination. As a
concerning the relationship of several distinct obligations                    minimum, opinions or estimates of lost
between them falls within the exception. See, e.g., Hubacek,                   profits must be based on objective
317 S.W.2d at 34 (“A and B in an integrated contract                           facts, figures, or data from which
respectively promise to sell and to buy Blackacre for                          the amount of lost profits can
$3,000.00. A contemporaneous oral agreement between them                       be ascertained. Although supporting
that the price shall be paid partly by discharge of a judgment                 documentation may affect the weight
which B has against A is operative.” (quoting with approval                    of the evidence, it is not necessary
RESTATEMENT (FIRST) OF CONTRACTS section 240                                   to produce in court the documents
cmt. d (1939))). Here, if the parties agreed that the lease                    supporting the opinions or estimates.
obligation was to be additional *876 consideration for the
buyout, then such an agreement was a consistent collateral         Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84
agreement. Nothing in such an agreement would contradict           (Tex.1992) (citations omitted).
the written contracts. See id. at 32 (“If ... the parol evidence
rule precludes enforcement of the oral agreement, it is because    The trial court awarded $300,000 in lost profits “constituting
the agreement varies or contradicts the terms or obligations of    the loss of income from [ERI's and Snodgrass's] business
the [written contracts].”). Accordingly, Swinnea's testimony       relationship with Merico.” Our legal sufficiency analysis thus
conceding this fact was properly admitted under this long-         reviews whether competent evidence establishes this amount
standing exception to the parol evidence rule. The fact that the   with reasonable certainty. See id.
lease agreement was consideration for the buyout agreement
as a whole is thus established by legally sufficient evidence.      [15] Snodgrass testified that based on information from
                                                                   his in-house accountant, ERI's net profit margin on revenue
Therefore, as contractual consideration, the lease payments        from Merico was approximately 25%–30%. 4 As a long-
from ERI to Malmeba are subject to forfeiture for Swinnea's        time co-owner and then sole owner of ERI—a small,
breach of fiduciary duty. The trial court should consider          profitable company—Snodgrass was competent to testify as
whether to include them in fashioning an appropriate               to ERI's estimated profit margin on the Merico account.
equitable forfeiture.                                              Cf. Bowen v. Robinson, 227 S.W.3d 86, 97 (Tex.App.-
                                                                   Houston [1st Dist.] 2006, pet. denied) (“Competent evidence
                                                                   of lost profits relating to property can be proved by the
                                                                   testimony of an expert or the owner of the property.”).
                  IV. Lost Profit Damages
                                                                   Swinnea directs us to no evidence contradicting *877
                                                         this testimony concerning ERI's profit margin. 5 ERI also
[11] We turn next to the question of actual damages. Here,
where the only actual damages that the trial court awarded
                                                         introduced evidence—including dozens of detailed invoices
were lost profit damages, the issue is whether ERI provided
                                                         —indicating that from January 2000 through August 2001
                                                   3     (20 months), ERI averaged $19,833.10 in revenue per month
legally sufficient evidence of those lost profits.
                                                         from Merico. Later, from September 2001 through May
 [12] [13] [14] The rule concerning adequate evidence of 2004 (33 months), average revenue dropped to $1,792.59 per
lost profit damages is well established:                 month. 6 Contrasting revenue from a time period immediately
                                                         before the period at issue is an established method of
              Recovery for lost profits does not         proving revenue for a lost profit damages calculation. See
              require that the loss be susceptible       Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877
              of exact calculation. However, the         S.W.2d 276, 279 (Tex.1994) (“It is permissible to show the
              injured party must do more than            amount of business done by the plaintiff in a corresponding
              show that they suffered some               period of time not too remote, and the business during the
              lost profits. The amount of the            time for which recovery is sought.” (quoting Sw. Battery


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ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098–99                lost profits were on the Merico account, which were in
(1938))). Thus, ERI's method for proving its lost profits in         turn lost because of Swinnea's involvement with Air Quality
a reasonably certain amount—establishing its lost revenue            Associates, we must offset any amount that ERI gained by
with comparative evidence from a recent time period, and             doing business with Air Quality Associates. That is, where
establishing its profit margin on that revenue by competent          the two accounts were mutually exclusive, loss from one
testimony of its owner—was legally adequate under Holt               must be offset by gain from the other. This argument is
Atherton.                                                            unpersuasive in part because the exclusivity arose out of
                                                                     Merico's ultimatum to ERI about Air Quality Associates—“us
However, ERI's method does not support a calculation                 or them”—not because it was otherwise impossible for ERI
yielding the amount of damages awarded by the trial court.           to pursue both business relationships simultaneously. The
Even assuming a 30% profit margin on the work from Merico,           evidence shows that Merico came to give ERI its ultimatum
Snodgrass's maximum profit margin estimate, the damages              because of Swinnea. Merico did not object to ERI's work
award would be only $178,601.05 for the 33–month period              with Air Quality Associates—a competitor of Merico's in
at issue when ERI's profits from Merico declined. 7 ERI's            asbestos abatement—until it discovered that Swinnea and
evidence thus fails to meet the minimum requirements for             Power were involved with Air Quality Associates. Nothing
legal sufficiency that we set out in Holt Atherton regarding         suggests that ERI could not have profited from working
reasonable certainty as to the amount awarded by the trial           both with Air Quality Associates (apart from Swinnea) and
court—here, $300,000. Up to this point, the court of appeals         Merico. 8 Accordingly, because nothing indicates that ERI
reached the same conclusions that we have. See 236 S.W.3d            could not work with both companies, any profits from ERI's
at 838–39 (reciting the same evidence and reaching the               work with Air Quality Associates need not be offset against
same conclusion regarding whether such evidence is legally           the lost profits from Merico caused by Swinnea's position
sufficient to prove $300,000 of lost profit damages with             with Air Quality Associates.
reasonable certainty).
                                                                      [18]     [19] Even assuming that Swinnea is correct that
 [16] Still, while the evidence does not prove $300,000 in lost      profits from Air Quality Associates must be credited against
profits, ERI's evidence is legally sufficient evidence to prove      the lost profits figure, he can point to no evidence to support
a lesser, ascertainable amount of lost profits with reasonable       his assertion that ERI profited from work with Air Quality
certainty. In this situation, such a discrepancy between two         Associates as a substitute for Merico. The plaintiff bears the
reasonably certain amounts will not defeat recovery by ERI.          burden of providing evidence supporting a single complete
See Sw. Battery, 115 S.W.2d at 1099 (“[U]ncertainty as to the        calculation of lost profits, which may often require certain
fact of legal damages is fatal to recovery, but uncertainty as       credits and expenses. See Holt Atherton, 835 S.W.2d at 85
to the amount will not defeat recovery.”); Tex. Instruments,         (“Recovery of lost profits must be predicated on one complete
877 S.W.2d at 279 (explaining that Southwest Battery and             calculation.”). However, the defendant properly bears the
subsequent cases required reasonable certainty as to the             burden of providing at least some evidence suggesting that an
amount of lost profit damages); cf. *878 Akin, Gump,                 otherwise complete lost profits calculation is in fact missing
Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp.,        relevant credits. Cf. Brown v. Am. Transfer & Storage Co.,
299 S.W.3d 106, 109 (Tex.2009) (remanding to the court of            601 S.W.2d 931, 936 (Tex.1980) (“The right of offset is
appeals where there was some evidence of damages, but not            an affirmative defense. The burden of pleading offset and
enough to support the full amount awarded by the trial court).       of proving facts necessary to support it are on the party
ERI proved lost profit damages; its entitlement to recover           making the assertion.”). Were this not so, every facially
them survives the trial court's error in awarding too much.          adequate calculation of lost profits would be susceptible to
Accordingly, the appropriate remedy is to remand the case to         an unsubstantiated challenge that something is missing. That
the court of appeals to consider the possibility for remittitur on   subtle distinction is crucial here because Swinnea directs
lost profit damages. See TEX.R.APP. P. 46.3, 46.5 (providing         us to nothing in the record proving that ERI profited—
procedures for remittitur by courts of appeals).                     in any amount—from working with Air Quality Associates
                                                                     as a substitute for Merico in *879 asbestos abatement;
 [17] Swinnea argues that ERI's lost profits calculation is          and we can find none. 9 Rather, he simply asserts that ERI
inadequate because it fails to apply certain credits or deduct       does not dispute that it developed a mutually successful
certain expenses. First, Swinnea asserts that because ERI's          relationship with Air Quality Associates. The only evidence


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ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

in the record indicates that ERI continued to show an overall      legally sufficient to establish a straightforward link between
profit despite the decline in revenue from Merico, and that        Swinnea's breach of duty and the loss of profits to ERI.
ERI worked with Air Quality Associates. No evidence shows
whether any profits from working with Air Quality Associates       In sum, legally sufficient evidence does not exist to
contributed to ERI's overall profits, as a substitute for Merico   prove the trial court's lost profit damages award under the
or otherwise. 10                                                   minimum requirements of Holt Atherton. However, this
                                                                   insufficiency does not extend to reasonable certainty as to
 [20]     Swinnea also contests that overhead costs and            any amount. Rather, competent evidence exists to establish
other unspecified expenses were not included in ERI's              some reasonably certain amount of lost profits—just not
evidence or calculation. However, it is not necessarily            the particular amount awarded by the trial court. Unlike a
the case that a company will incur increased expense or            situation where no evidence establishes any amount of lost
overhead, especially where—as evidence here suggests—              profit damages with reasonable certainty, the situation here
a corporation was already profitable at the time damages           requires a potential reduction, not a take—nothing judgment
began, and evidence supports an inference that it could            against the plaintiff. Therefore, we reverse the court of
have performed profitable services using only its existing         appeals' judgment that ERI recover no lost profit damages
resources. See Tex. Instruments, 877 S.W.2d at 279 (“[P]re-        and remand the case to that court for further proceedings.
existing profit, together with other facts and circumstances,      Should the court of appeals fail to arrive at a disposition
may indicate with reasonable certainty the amount of profits       concerning remittitur, it may remand for a new trial on lost
lost.” (quoting Sw. Battery, 115 S.W.2d at 1099)). This is not     profit damages, as we might have if the evidence did not seem
a manufacturing scenario, where production costs necessarily       conducive to remittitur. See Formosa Plastics Corp. USA
exist. Rather, ERI was a consulting company, which wrote           v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 51
plans and specifications, solicited bids for projects, and         (Tex.1998) (“[B]ecause there is no legally sufficient evidence
completed surveys. Evidence suggests that ERI would have           to support the entire amount of damages, but there is some
been able to perform all of this service work using its existing   evidence of the correct measure of damages, we reverse the
employees. Power, for instance, testified that he “put in          judgment of the court of appeals and remand the cause for a
whatever hours it takes to get jobs done.” Swinnea himself         new trial.”).
had begun contributing much less work to ERI, despite having
been one of its most productive workers before. Had Swinnea        Two additional collateral issues remain: punitive damages
continued to contribute at his prior level, that productivity      and factual sufficiency. The trial court found clear and
would only have helped ERI complete additional projects.           convincing evidence establishing that Swinnea willfully,
Furthermore, after Snodgrass fired Swinnea, ERI began to           maliciously, and intentionally caused injury to ERI and
work with Merico again, while still working with Air Quality       Snodgrass in committing fraud. Accordingly, exemplary
Associates, without expansion to ERI's staff. Accordingly,         damages may be recoverable. See TEX. CIV. PRAC. &
Swinnea has not met his burden to provide at least some            REM.CODE § 41.003 (providing that exemplary damages
evidence that ERI's otherwise complete lost profit damages         are recoverable if clear and convincing evidence shows harm
calculation was actually inadequate because of a necessary         from fraud or malice). Thus, upon resolution of the actual
credit or additional expense.                                      damages (lost profits) question, it is now proper for the courts
                                                                   below to consider any remaining issues concerning the trial
 [21] Swinnea also challenges causation as to ERI's lost           court's initial award of $1 million in punitive damages, which
profit damages. However, evidence showed that at the end           Swinnea has continued to contest.
of October 2001, upon concluding a series of conversations
about Swinnea's involvement with Air Quality Associates,           As for factual sufficiency of the lost profits award, however,
Merico specifically indicated that it would no longer be           we observe that there may be a question of whether Swinnea
                                                                   adequately briefed the issue to the court of appeals. The Texas
working with ERI because of Swinnea's involvement. 11
                                                                   Rules of Appellate Procedure require adequate briefing. See
Swinnea himself testified *880 that his involvement with
                                                                   TEX.R.APP. P. 38.1(i) (“The [Appellant's] brief must contain
Air Quality Associates could harm the Merico relationship,
                                                                   a clear and concise argument for the contentions made,
and that a severance of ERI's relationship with Merico
                                                                   with appropriate citations to authorities and to the record.”);
would negatively affect ERI's revenues. This evidence is
                                                                   accord Redmon v. Griffith, 202 S.W.3d 225, 241 (Tex.App.-



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ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

Tyler 2006, pet. denied) (“In their brief, the [cross-appellants]   Environmental. Moreover, no meeting of the minds between
have not presented much in the way of cogent argument,              Swinnea and Brady Environmental could have occurred
nor have they cited to any authority in support of their sole       involving the actions causing ERI actual harm—lost profits
issue.... We hold that the [cross-appellants] have waived their     —because Brady Environmental did not yet exist, having
sole issue by their failure to adequately brief it.”); Murchison    been formed approximately six months after Swinnea left
v. State, 93 S.W.3d 239, 254 (Tex.App.-Houston [14th                Air Quality Associates. Accordingly, Brady Environmental
Dist.] 2002, pet. ref'd) (holding that factual sufficiency point    cannot be jointly and severally liable for any lost profit
concerning criminal trial was waived because “appellants'           damages discussed above, or any potential punitive damages
argument, record citations, and authorities do not address”         that follow from them.
the point); Smith v. Tilton, 3 S.W.3d 77, 84 (Tex.App.-Dallas
1999, no pet.) (“Points of error asserted on appeal but not     [25] Furthermore, while Brady Environmental may have
briefed are waived.”). On remand, the court of appeals should  participated in the abuse of trust in Swinnea's ongoing
consider whether Swinnea *881 adequately raised a factual      breaches of fiduciary duty and Swinnea's ongoing fraudulent
sufficiency challenge.                                         misrepresentations, Brady Environmental had no part in
                                                               inducing the buyout agreement. As discussed above, the
                                                               forfeiture of contractual consideration is available as an
                                                               equitable remedy against a fiduciary who fraudulently
                 V. Liability for Conspiracy
                                                               induces the contract, regardless of actual harm. Contractual
 [22]     Having found that legally sufficient evidence consideration is subject to forfeiture because it was
established lost profit damages in some amount, and that       fraudulently bargained for by a fiduciary. Certainly the rule
Swinnea may also be liable for punitive damages as well as     allowing such equitable remedies to protect relationships of
forfeiture of contractual consideration, we must next address  trust encompasses the ability to fashion such remedies against
whether Brady Environmental may be jointly liable for these    those who would conspire to abuse such relationships. See
damages as a conspirator.                                      Kinzbach, 160 S.W.2d at 514 (“It is settled as the law of
                                                               this State that where a third party knowingly participates in
 [23] [24] An actionable civil conspiracy requires specific the breach of duty of a fiduciary, such third party becomes
intent to agree to accomplish an unlawful purpose or a lawful  a joint tortfeasor with the fiduciary and is liable as such.”).
purpose by unlawful means. Juhl v. Airington, 936 S.W.2d       Yet, “the remedy of forfeiture must fit the circumstances
640, 644 (Tex.1996). One of the elements of conspiracy is      presented.” Burrow, 997 S.W.2d at 241. The trial court's
a meeting of the minds on the object or course of action.      award included no equitable remedy tied to conduct in which
Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983).     Brady Environmental participated. Rather, the only equitable
Another element is actual damages as the proximate result of   award—forfeiture of contractual consideration—arose from a
the conspiracy. Id.                                            transaction that occurred approximately a year before Brady
                                                               Environmental existed. Under the circumstances of this
In its live pleading at trial, ERI asserted that Brady         particular case, we believe that even if Brady Environmental
Environmental conspired in Swinnea's ongoing fraudulent         *882 conspired in later breaches of fiduciary duty or
misrepresentations as well as Swinnea's ongoing breach of      fraud,  Brady Environmental is not subject to liability for
fiduciary duty, which among other things damaged existing      any  particular equitable forfeiture amount from the return of
ERI client relationships. The trial court found that Swinnea's contractual consideration given in the specific transaction at
wrongful conduct “continued after the buy-out, including       issue. Accordingly, we affirm the court of appeals' judgment
but not limited to his formation of Brady Environmental,       that ERI take nothing on its conspiracy claim against Brady
Inc.” It also found that Brady Environmental “participated     Environmental.
in and knowingly accepted the benefits of ... Swinnea's
wrongful conduct,” and that Brady Environmental “had
actual awareness of the wrongful conduct.”                                             VI. Conclusion

Even assuming those findings are true, there is no evidence         We hold that when a fiduciary fraudulently induced a
that any of the damages awarded by the trial court occurred         contract, such a breach of fiduciary duty may give rise
as the proximate result of any involvement by Brady                 to equitable forfeiture of contractual consideration. We



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       12
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

                                                                        ERI take nothing on its claims for lost profit damages and
therefore reverse the portion of the court of appeals' judgment
                                                                        punitive damages and remand the case to the court of appeals
that ERI take nothing in equity. Because trial courts are
                                                                        to consider a remittitur, as well as any other remaining issues,
required to consider certain factors when fashioning a
                                                                        before remanding the case to the trial court.
forfeiture remedy, which we have set out, we direct the
court of appeals to remand the case to the trial court, in
                                                                        Finally, we affirm the portion of the court of appeals'
turn, for review of its forfeiture award in light of these
                                                                        judgment that ERI and Snodgrass take nothing on their civil
principles. Additionally, we conclude that the court of appeals
                                                                        conspiracy claims against Brady Environmental because the
erred in excluding evidence that certain lease payments
                                                                        actual damages awarded by the trial court were not caused by
were contractual consideration subject to forfeiture because
                                                                        Brady Environmental's wrongful conduct, and the equitable
testimony proving this fact was properly admitted under
                                                                        forfeiture awarded by the trial court arose from a transaction
the consistent collateral agreement exception to the parol
                                                                        too remote from Brady Environmental's involvement to
evidence rule.
                                                                        support liability in equity.
We also hold that while legally sufficient evidence does
not exist to prove the lost profits awarded by the trial
                                                                        Parallel Citations
court, legally sufficient evidence does exist to prove some
reasonably certain amount of lost profits. We therefore also            53 Tex. Sup. Ct. J. 683
reverse the portion of the court of appeals' judgment that


Footnotes
1      The parties dispute whether the lease agreement was intended to be consideration for the buyout. None of the documents in the buyout
       agreement expressly addressed this, but Snodgrass testified that he and Swinnea had agreed to the lease as part of the comprehensive
       buyout.
2      As we discuss below, certain issues that remain as a result of our holdings in this case are properly before the court of appeals on
       remand, precluding us from remanding the case directly to the trial court.
3      We need not distinguish here between ERI's causes of action—common-law and statutory fraud, breach of contract, and breach of
       fiduciary duty—because ERI's lost profit damages are recoverable for any one of those claims. See Waite Hill Servs., Inc. v. World
       Class Metal Works, Inc., 959 S.W.2d 182, 184–85 (Tex.1998) (per curiam) (observing that lost profits are recoverable both as tort
       and contract damages, subject to the rule precluding double recovery for a single injury).
4      Swinnea did not raise a hearsay objection at trial.
5      We note that Swinnea's counsel stated on cross-examination of Snodgrass that “if we looked at [ERI's] financials, we could pretty
       well figure [the profit margin on the Merico account] out.” Indeed, Swinnea had the opportunity to attempt to negate Snodgrass's
       testimony on profit margin with conclusive contrary evidence, if such evidence existed. Yet, Swinnea directs us to no such evidence
       from which we could determine whether Snodgrass's estimate was mistaken.
6      ERI points us to testimony from another ERI employee that its revenue from Merico was $300,000–$400,000 per year, but the
       accounting statements introduced by ERI as a trial exhibit conclusively establish otherwise. See City of Keller v. Wilson, 168 S.W.3d
       802, 820 (Tex.2005) (“[Fact-finders] are not free to believe testimony that is conclusively negated by undisputed facts.”)
7      At trial, ERI put on evidence that its estimated lost revenue over the 33–month period was $595,336.83. Thirty percent of this figure
       is $178,601.05.
8      Swinnea elsewhere points out to us that Air Quality Associates was also doing profitable mold treatment work, while Merico focused
       on asbestos removal. This suggests that ERI might have had separate consulting opportunities with Air Quality Associates that
       were unavailable from Merico, meaning it could have consistently worked with both without overlap, as ERI also performed mold
       assessments. Indeed, ERI began to work with both Merico and Air Quality Associates some time after the period in question.
9      Swinnea asserts in his brief that where “ERI chose the relationship with AQA [instead of Merico, such] conduct of itself is evidence
       of ERI's belief that the AQA relationship was the more profitable one.” At most, this suggests that ERI might have believed that the
       Air Quality Associates relationship would be the more profitable one, which says nothing about whether it was actually profitable.
       Swinnea also asserts in his brief that “the AQA relationship was demonstrably ... lucrative to ERI, as the corporate financial records
       proved.” But Swinnea does not direct us to any such financial records in the record. Further, having reviewed hundreds of ERI's
       invoices (the majority of which were issued to Merico), as well as other financial records introduced as evidence, we could not find
       a single piece of evidence in the record proving any profit to ERI from Air Quality Associates.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      13
ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867 (2010)
53 Tex. Sup. Ct. J. 683

10     Indeed, we are left to wonder further whether any such alleged profits were in turn for asbestos projects that Merico might have
       worked on rather than for mold projects.
11     We reiterate that Swinnea does not contest liability. The trial court entered specific findings of fact and conclusions of law concerning
       the impropriety of Swinnea's involvement with Air Quality Associates. Thus, Swinnea's liability extends to any damage caused by
       his involvement with Air Quality Associates.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        14
Garza v. Alviar, 395 S.W.2d 821 (1965)


                                                                         In deciding question of whether there is evidence
                                                                         of probative force to support a finding, reviewing
                     395 S.W.2d 821
                                                                         court must consider only evidence and inferences
                 Supreme Court of Texas.
                                                                         tending to support the finding and disregard all
       Raymond Remigio GARZA et al., Petitioners,                        evidence and inferences to the contrary.
                         v.
                                                                         877 Cases that cite this headnote
          Abelina ALVIAR et al., Respondents.

            No. A-10749. | Nov. 3, 1965.                           [3]   Appeal and Error
           | Rehearing Denied Dec. 1, 1965.                                  Evidence to Establish Cause of Action or
                                                                         Defense
Action by father of 11-year-old daughter against driver of
                                                                         If a “no evidence” point is sustained on appeal
automobile and owner for injuries sustained by daughter
                                                                         and proper procedural steps have been taken,
when she was struck by the automobile. The District Court,
                                                                         finding under attack may be disregarded entirely
Jim Wells County, C. W. Laughlin, J., entered judgment
                                                                         and judgment is usually rendered for appealing
against father and daughter, which was reversed by the Court
                                                                         party unless the interests of justice require
of Civil Appeals, 387 S.W.2d 905, and defendants brought
                                                                         another trial.
error. The Supreme Court, Walker, J., held that point alleging
that court erred in overruling plaintiffs' motion to disregard           67 Cases that cite this headnote
jury's findings with respect to certain special issues presented
many contentions if their generality was overlooked but did
not raise any question as to factual sufficiency of evidence       [4]   Appeal and Error
to support answer to special issue relating to contributory                 Review of Questions of Fact
negligence, and judgment of trial court should not have been             When contention is made at appellate level that
reversed on that ground.                                                 evidence is factually insufficient to support a
                                                                         finding of fact, a question within peculiar and
Judgment of Court of Civil Appeals reversed, and that of trial           conclusive factual jurisdiction of Court of Civil
court affirmed.                                                          Appeals is presented, and that court is required
                                                                         to consider all the evidence in deciding the
                                                                         question.

 West Headnotes (14)                                                     41 Cases that cite this headnote


 [1]     Appeal and Error                                          [5]   Appeal and Error
              Sufficiency of Evidence as Question of Law                     Failure to Introduce Sufficient Evidence to
         or Fact                                                         Authorize Recovery or Establish Defense
         Statement in a point of error that there is no                  If contention that evidence is factually
         evidence of probative force to support a finding                insufficient to support the finding of fact is
         in question presents a question of law within                   sustained on appeal, finding under attack may be
         jurisdiction of Supreme Court, as well as that of               set aside and a new trial ordered.
         Court of Civil Appeals.
                                                                         491 Cases that cite this headnote
         Cases that cite this headnote
                                                                   [6]   Appeal and Error
 [2]     Appeal and Error                                                   Sufficiency of Evidence in Support
            Interrogatories and Special Verdicts                         Appeal and Error
         Appeal and Error                                                   Authority to Find Facts
            Extent of Review



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Garza v. Alviar, 395 S.W.2d 821 (1965)


        Factual insufficiency of evidence does not                   justify consideration of a point of error based
        authorize reviewing court to disregard the                   thereon.
        finding entirely or make a contrary finding in
        entering final judgment for one of the parties.              9 Cases that cite this headnote

        58 Cases that cite this headnote
                                                              [11]   Judgment
                                                                         Where There Is No Evidence to Sustain
 [7]    Appeal and Error                                             Verdict
           Scope and Effect                                          Trial
        Unless context shows that words were used in                      Questions to Be Submitted
        a different sense, references to insufficiency of            Trial court is authorized upon motion and notice
        evidence are usually construed to mean factual               to disregard any special issue jury finding that
        insufficiency.                                               has no support in evidence, but court may not
                                                                     properly refuse to submit an issue or disregard
        5 Cases that cite this headnote
                                                                     jury's answer thereto merely because evidence is
                                                                     factually insufficient to support the same. Rules
 [8]    Appeal and Error                                             of Civil Procedure, rule 301.
           Scope and Effect
                                                                     84 Cases that cite this headnote
        Reference to insufficiency of evidence in point
        urged by plaintiffs in Court of Civil Appeals was
        construed to mean factual insufficiency where         [12]   Appeal and Error
        court stated that it had considered all evidence in             Scope and Effect
        passing on the point, and also remanded cause for            A contention that an issue should not have been
        new trial, and said nothing to indicate that this            submitted, or that a finding of the jury should be
        was done in the interest of justice.                         disregarded because of the insufficiency of the
                                                                     evidence, can mean only that there is no evidence
        139 Cases that cite this headnote
                                                                     to warrant submission of issue or support jury's
                                                                     finding.
 [9]    Appeal and Error
             Sufficiency of Evidence as Question of Law              23 Cases that cite this headnote
        or Fact
        Supreme Court has no jurisdiction to review a         [13]   Appeal and Error
        holding that evidence is factually insufficient to              Scope and Effect
        support the answer to a special issue, but it is             Point of error alleging that court erred in
        authorized to determine whether jurisdiction of              overruling plaintiffs' motion to disregard jury's
        Court of Civil Appeals to decide that question               findings with respect to certain special issues
        has been properly invoked.                                   presented many contentions if their generality
                                                                     was overlooked but did not raise any question as
        8 Cases that cite this headnote
                                                                     to factual sufficiency of evidence to support the
                                                                     answer to special issue relating to contributory
 [10]   Appeal and Error                                             negligence, and judgment of trial court should
            Objections to Verdict, Findings, or                      not have been reversed on that ground.
        Judgment
                                                                     269 Cases that cite this headnote
        Paragraph of motion for new trial, complaining
        of trial court's error in overruling motion to
        disregard jury's findings with respect to certain     [14]   Appeal and Error
        special issues, was too general to require or                   Necessity




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Garza v. Alviar, 395 S.W.2d 821 (1965)


         Supreme Court will not consider questions not
         brought to it by application for writ of error.            Plaintiffs went to the Court of Civil Appeals with seven
                                                                    points of error. Points Nos. 1, 2, 3, 4 and 6 were stricken
         Cases that cite this headnote                              by the intermediate court upon motion of the defendants.
                                                                    Plaintiffs were then granted leave to amend their brief, but no
                                                                    amendment was filed. After further consideration, the Court
                                                                    of Civil Appeals concluded that Point No. 4 challenged the
Attorneys and Law Firms                                             sufficiency of the evidence to support the finding in response
                                                                    to Special Issue No. 15 that Linda was negligent in running
*822 Lloyd, Lloyd & Dean, Alice, Keys, Russell, Keys &              from immediately behind the truck just prior to the accident.
Watson, Corpus Christi, for petitioners.                            According to its opinion, the Court of Civil Appeals found
                                                                    ‘that the evidence is insufficient to support the jury's answer
Perkins, Floyd, Davis & Oden, Alice, for respondents.               to issue number 15’ and on the basis of that holding reversed
                                                                    the judgment of the district court and remanded the cause for
Opinion
                                                                    a new trial.
WALKER, Justice.                                                     [1] [2] [3] A statement in a point of error, or in the opinion
                                                                    of one of our intermediate appellate courts, that the evidence
This is a personal injury action in which the trial court           is ‘insufficient’ to support a finding by the trier of fact is often
rendered judgment on the verdict for the defendants. The            troublesome because of its ambiguity. It can mean that the
Court of Civil Appeals reversed such judgment and remanded          evidence is legally insufficient, i.e., there is no evidence of
the cause for a new trial, because it concluded that the            probative force, to support the finding in question. When that
evidence was factually insufficient to support the jury's           contention is made, a question of law within our jurisdiction
finding of contributory negligence. 387 S.W.2d 905. In our          as well as that of the Courts of Civil Appeals is presented. In
opinion this question was not raised in the trial court or          deciding that question, the appellate court must consider only
presented by the plaintiffs' brief in the Court of Civil Appeals.   the evidence and the inferences tending to support the finding
                                                                    and disregard all evidence and inferences to the contrary. If
Linda Alviar, a girl eleven years of age, was crossing Almond
                                                                    a ‘no evidence’ point is sustained and the proper procedural
Street in Alice, Texas, when she was struck by an automobile
                                                                    steps have been taken, the finding under attack may be
owned by Remigio M. Garza and driven by his son, Raymond
                                                                    disregarded entirely and judgment is usually rendered for the
Garza. Suit was instituted by Linda's father, individually and
                                                                    appellant unless the interests of justice require another trial.
as next friend for his daughter, against the Garzas to recover
damages for her injuries. The jury found that Almond Street
                                                                     [4]    [5]    [6] On the other hand, an assertion that the
had been designated as one-way street for south bound traffic
                                                                    evidence is ‘insufficient’ to support a finding of fact can
only, and that the accident was proximately caused by the
                                                                    mean that the evidence is factually insufficient, i.e., the
negligence of Raymond Garza in driving north thereon. It
                                                                    evidence supporting the finding is so weak or the evidence
also concluded that Raymond was driving at an excessive
                                                                    to the contrary is so overwhelming that the finding should
rate of speed, but refused to find that this was a proximate
                                                                    be set aside and a new trial ordered. When that contention
cause of the accident. All other primary negligence issues
                                                                    is made at the appellate level, a question within the peculiar
were answered favorably to the defendants.
                                                                    and conclusive factual jurisdiction of the Courts of Civil
 *823 The jury acquitted Linda of any negligence in failing         Appeals is presented. The intermediate court is required to
to keep a proper lookout for her own safety and in failing to       consider all of the evidence in deciding the question. If
yield the right of way to the automobile. It also determined        the contention is sustained, the finding under attack may
that while she was negligent in failing to cross the street at a    be set aside and a new trial ordered. Factual insufficiency
regular crosswalk, such negligence was not a proximate cause        of the evidence does not, however, authorize the court to
of the accident. In response to Special Issues Nos. 14, 15 and      disregard the finding entirely or make a contrary finding in
16, the jury found: (14) that just before the accident Linda ran    entering final judgment for one of the parties. See Calvert,
from immediately behind a soda water truck, and (15) that this      ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error, 38
was negligence and (16) a proximate cause of the accident.          Tex.Law Rev. 359; Garwood, The Question of Insufficient
The judgment of the trial court rests upon these three findings.    Evidence on Appeal, 30 Tex.Law Rev. 803; Gulf, C. & S. F.
                                                                    Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 159 Tex.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Garza v. Alviar, 395 S.W.2d 821 (1965)


                                                                                with respect to certain special issues, a
238, 317 S.W.2d 913; In re King's Estate, 150 Tex. 662, 244
                                                                                copy of Plaintiffs' motion to disregard
S.W.2d 660.
                                                                                the jury's findings with respect to certain
                                                                                special issues being attached hereto and
 [7] [8] [9] Unless the context shows that the words were
                                                                                made a part hereof for all purposes.’
used in a different sense, references to the insufficiency of the
evidence are usually construed to mean factual insufficiency.
We are satisfied that this is the meaning attributed to plaintiff's    [10]    [11] An assignment in these terms is too general
Point No. 4 by the Court of Civil Appeals in the present case.        to require or justify consideration of a point of error based
The court stated that it had considered all of the evidence in        thereon. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.
passing on the point. It also remanded the cause for a new            Even if that were not the case, the assignment of error as well
trial and said nothing to indicate that this was done in the          as Point No. 4 and the argument thereunder are directed at
interest of justice. In *824 their answer to the application          the action of the trial court in overruling plaintiff's motion
for writ of error, plaintiffs tacitly recognize that the Court        to disregard the jury's findings. Under the rpovisions of
of Civil Appeals was exercising its factual jurisdiction, for         Rule 301, Texas Rules of Civil Procedure, the trial court is
they insist that the Supreme Court is without power to review         authorized, upon motion and notice, to ‘disregard any Special
the ruling of the intermediate court on the sufficiency of the        Issue Jury Finding that has no support in the evidence.’ The
evidence. It is true that we have no jurisdiction to review the       court may not, however, properly refuse to submit an issue
holding that the evidence is factually insufficient to support        or disregard the jury's answer thereto merely because the
the answer to Special Issue No. 15, but we are authorized             evidence is factually insufficient to support the same.
to determine whether the jurisdiction of the Court of Civil
Appeals to decide that question was properly invoked.                  [12] [13] A contention that an issue should not have been
                                                                      submitted, or that a finding of the jury should be disregarded,
                                                                      because of the insufficiency of the evidence is subject to only
Point No. 4 urged by plaintiffs in the Court of Civil Appeals         one construction. It can mean only that there is no evidence to
reads as follows:                                                     warrant submission of the issue or support the jury's finding.
          ‘The error of the trial court in overruling                 See McDonald v. New York Central Mutual Fire Ins. Co.,
          and in not sustaining plaintiffs' motion to                 Tex.Sup., 380 S.W.2d 545. Many contentions are presented
          disregard the jury's findings with respect                  by the assignment and point of error quoted above if we
          to certain special issues.’                                 overlook their generality and consider plaintiffs' motion to
                                                                      disregard, but they do not raise any question as to the factual
                                                                      sufficiency of the evidence to support the answer to Special
This and four other points were grouped in their brief, and           Issue No. 15. The judgment of the trial court should not have
the statement thereunder contains a rather full resume of             been reversed on that ground.
the evidence. In the course of the argument, plaintiffs took
the position that Special Issues Nos. 14, 15 and 16 are                [14] We have examined plaintiffs' other points of error in the
evidentiary and should not have been submitted, and that the          Court of Civil Appeals. Several are not supported by proper
affirmative answers thereto will not support a judgment for           assignments of error in the motion for new trial, and it was
the defendants. It was also pointed out that they had filed           for this reason that the court sustained defendants' motion
their motion to disregard the answers to these three issues           to strike. The remainder of such points, if sustained, would
because ‘there was insufficient support in the evidence to            require that the judgment of the trial court be reversed and
warrant the submission of such issues to the jury.’ This is the       rendered or modified *825 and affirmed. These questions
only reference in the brief to the sufficiency of the evidence        cannot be considered by us, because they have not been
to support the answer to Special Issue No. 15.                        brought here by application for writ of error. See Calvert,
                                                                      Some Problems of Supreme Court Review, 21 Tex.Bar Jour.
As the basis for Point No. 4, plaintiffs referred in their brief      75.
to Paragraph V of the amended motion for new trial, which
reads as follows:
          ‘The court erred in overruling Plaintiffs'                  The judgment of the Court of Civil Appeals is reversed, and
          motion to disregard the jury's findings                     that of the trial court is affirmed.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Garza v. Alviar, 395 S.W.2d 821 (1965)




End of Document                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                    5
Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


                                                                          Findings of Court or Referee
                   902 S.W.2d 181                                    Appeal and Error
               Court of Appeals of Texas,                                Character and Amount of Evidence in
                      Fort Worth.                                    General
                                                                     In determining “no evidence” point, Court of
         William C. GOOCH, Appellant,                                Appeals considers only evidence and inferences
                      v.                                             that tend to support challenged finding and
   AMERICAN SLING COMPANY, INC., Appellee.                           disregards all evidence and inferences to the
                                                                     contrary; if there is more than scintilla of
         No. 2–94–205–CV.         |   June 29, 1995.                 such evidence to support finding, then claim is
                                                                     sufficient as matter of law, and any challenges go
Creditor sued to recover on corporate president's guaranty
                                                                     merely to weight to be accorded the evidence.
of corporate indebtedness. The County Court at Law No.
2, Tarrant County, Steve Wallace, J., entered judgment in            Cases that cite this headnote
favor of creditor, and president appealed on theory that
no consideration existed to support his guaranty or, in
alternative, he executed guaranty under duress. The Court of   [4]   Appeal and Error
Appeals, Dauphinot, J., held that: (1) consideration existed            Total Failure of Proof
sufficient to support president's guaranty given evidence            “No evidence” point of error may be sustained
of creditor's forbearance in enforcing its right to payment,         only when record discloses a complete absence
and (2) president failed to satisfy burden of demonstrating          of evidence of vital fact, when court is barred
affirmative defense of duress.                                       by rules of law or evidence from giving weight
                                                                     to the only evidence offered to prove vital fact,
Affirmed.                                                            when evidence offered to prove vital fact is no
                                                                     more than mere scintilla of evidence, or when
                                                                     evidence establishes conclusively the opposite of
                                                                     vital fact.
 West Headnotes (24)
                                                                     1 Cases that cite this headnote
 [1]    Appeal and Error
           Review of Evidence                                  [5]   Appeal and Error
        On challenge to legal sufficiency of evidence by                Total Failure of Proof
        party having burden of proof at trial, appellate             “No evidence” point of error must be rejected
        court addresses alleged error as “matter of law”             when proof supplies a reasonable basis on
        point.                                                       which reasonable minds may reach different
                                                                     conclusions about existence of vital fact.
        4 Cases that cite this headnote
                                                                     Cases that cite this headnote
 [2]    Appeal and Error
           Total Failure of Proof                              [6]   Appeal and Error
        On challenge to legal sufficiency of evidence                   Findings of Court or Referee
        by party not having burden of proof at trial,                Appeal and Error
        appellate court addresses alleged error as “no                  Extent of Review
        evidence” point.                                             Appeal and Error
                                                                        Against Weight of Evidence
        14 Cases that cite this headnote
                                                                     When appellant attacks legal sufficiency of
                                                                     adverse answer to finding on which he had
 [3]    Appeal and Error                                             burden of proof at trial, appellant must overcome



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


        two hurdles: first, record must be examined for
        evidence that supports finding while ignoring all          1 Cases that cite this headnote
        evidence to contrary; and secondly, if there is
        no evidence to support fact finder's answer, the    [11]   Appeal and Error
        entire record must be examined to see if contrary             Extent of Review
        proposition is established as matter of law.
                                                                   In reviewing point of error asserting that finding
        6 Cases that cite this headnote                            is against great weight and preponderance of
                                                                   evidence, Court of Appeals must consider and
                                                                   weigh all of the evidence, both the evidence that
 [7]    Appeal and Error                                           tends to prove existence of vital fact as well as
           Preponderance of Evidence                               evidence that tends to disprove its existence.
        When party challenges factual sufficiency of
        evidence on point on which he had burden of                1 Cases that cite this headnote
        proof at trial, party must show that finding
        is against great weight and preponderance of        [12]   Appeal and Error
        evidence.                                                     Manifest Weight

        15 Cases that cite this headnote                           If finding is so contrary to great weight and
                                                                   preponderance of evidence as to be manifestly
                                                                   unjust, “factual sufficiency” point should be
 [8]    Appeal and Error                                           sustained, regardless of whether there is some
           Burden of Showing Error                                 evidence to support it.
        When party challenges factual sufficiency of
        evidence on point on which he did not have                 8 Cases that cite this headnote
        burden of proof at trial, party must show only
        that evidence is insufficient to support adverse    [13]   Guaranty
        finding.                                                      Forbearance

        34 Cases that cite this headnote                           Consideration existed to support guarantee
                                                                   signed by corporate president, in which president
                                                                   agreed to be personally liable for corporation's
 [9]    Appeal and Error                                           preexisting debt, given evidence of creditor's
           Sufficiency of Evidence in Support                      forbearance in enforcing its right to payment
        Assertion that evidence is “insufficient” to               and agreement to continue doing business with
        support fact finding means that evidence which             corporation.
        supports finding is so weak, or evidence to the
        contrary is so overwhelming, that answer should            3 Cases that cite this headnote
        be set aside and a new trial ordered.
                                                            [14]   Appeal and Error
        6 Cases that cite this headnote
                                                                      Same Effect as Verdict
                                                                   Findings of fact entered in case tried to
 [10]   Appeal and Error                                           court are of same force and dignity as jury's
           Extent of Review                                        answers to jury questions, and are reviewable
        Appeal and Error                                           on appeal by same standards that are applied
           Form and Requisites                                     in reviewing legal or factual sufficiency of
        On challenge to factual sufficiency of evidence            evidence supporting jury's answer to jury
        to support finding, Court of Appeals must                  question.
        consider all of the evidence in case and, if it
                                                                   Cases that cite this headnote
        reverses, detail that evidence in its opinion.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       2
Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


                                                                  Postponement of enforcement of underlying
 [15]   Guaranty                                                  debt may be sufficient consideration to support
           Nature of Obligation                                   guaranty.
        “Guaranty” is contract in which one party agrees
        to be responsible for performance of another              2 Cases that cite this headnote
        party, even if first party does not have direct
        control.                                           [21]   Guaranty
                                                                     Sufficiency
        2 Cases that cite this headnote
                                                                  Agreement to continue doing business with
                                                                  primary debtor confers benefit on primary
 [16]   Contracts                                                 debtor, and may be consideration sufficient to
            Presumptions and Burden of Proof                      support guaranty.
        Written contract carries with it a presumption
        that consideration was given for contract's               3 Cases that cite this headnote
        execution.
                                                           [22]   Guaranty
        5 Cases that cite this headnote
                                                                     Weight and Sufficiency
                                                                  President failed to establish that he signed
 [17]   Guaranty                                                  guaranty of corporate indebtedness as a result
           Presumptions and Burden of Proof                       of supplier's duress, given conflicting evidence
        Burden of proof was on guarantor to show                  presented as to whether supplier had required
        that there was no consideration for his written           execution of guaranty as prerequisite to its
        guaranty of corporate indebtedness.                       release of goods ordered by corporation.

        Cases that cite this headnote                             Cases that cite this headnote


 [18]   Guaranty                                           [23]   Contracts
            Consideration of Principal Contract in                    Duress
        General                                                   Contracts
        If guaranty is entered into independently of                  Presumptions and Burden of Proof
        transaction that caused underlying obligation,            Duress is affirmative defense to liability on
        then guaranty must be supported by                        contract, which must be pled and proven by party
        consideration independent of obligation.                  claiming defense. Vernon's Ann.Texas Rules
                                                                  Civ.Proc., Rule 94.
        3 Cases that cite this headnote
                                                                  1 Cases that cite this headnote
 [19]   Guaranty
           Consideration                                   [24]   Appeal and Error
        Consideration for guaranty agreement usually                 Province of Trial Court
        consists either of suffering of detriment by              Appeal and Error
        creditor or of benefit conferred on primary                  Province of Trial Court
        debtor.
                                                                  Fact finder determines credibility of witnesses
        3 Cases that cite this headnote                           and weight to be given their testimony, and
                                                                  absent clear abuse of discretion, its findings of
                                                                  fact will not be disturbed on appeal.
 [20]   Guaranty
           Forbearance                                            Cases that cite this headnote



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Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


                                                                    findings of the trial court. All of these points of error were
                                                                    raised without addressing the appropriate burden of proof
                                                                    on the issues at the trial level. Because two of Appellant's
Attorneys and Law Firms
                                                                    points of error appear to confuse the appropriate standard of
 *183 Richard E. McGary, Robert F. Jones, Jr., Arlington,           appellate review as applied to Appellant's burden of proof in
for appellant.                                                      the trial court, we shall, therefore, review the proper handling
                                                                    of sufficiency points of error.
Donald T. Smith, Philip H. Trew, Law Office of Donald T.
Smith, P.C., Fort Worth, for appellee.

Before LIVINGSTON, DAUPHINOT and BRIGHAM, JJ.                                    LEGAL SUFFICIENCY POINTS

                                                                     [1]   [2] Legal sufficiency points are addressed as either
                                                                    “no evidence” or “matter of law” points. If the complaining
                          OPINION
                                                                    party has the burden of proof at trial, then the error is to be
DAUPHINOT, Justice.                                                 addressed as a “matter of law” point. If the complaining party
                                                                    does not have the burden of proof, then the error is to be *184
American Sling Co., Inc., Appellee, initially brought suit on       addressed as a “no evidence” point. Croucher v. Croucher,
a debt owed by William C. Gooch, Appellant. In a bench              660 S.W.2d 55 (Tex.1983); Raw Hide Oil & Gas, Inc. v.
trial, the court found for Appellee and ordered Appellant           Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.—
to pay $4,282.42 for the debt and $3,754.74 in attorney             Amarillo 1988, writ denied).
fees. In seven points of error, Appellant complains that
the trial court erred by finding that a guaranty agreement           [3] In determining a “no evidence” point, we are to consider
signed by Appellant was supported by consideration, that            only the evidence and inferences that tend to support the
Appellant signed the guaranty voluntarily, and that Appellee        finding and disregard all evidence and inferences to the
was entitled to attorney fees. We affirm.                           contrary. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847
                                                                    S.W.2d 218, 221 (Tex.1992); Orozco v. Sander, 824 S.W.2d
Appellant was President of Car Stackers, International,             555, 556 (Tex.1992); In re King's Estate, 150 Tex. 662, 244
Inc. (“Car Stackers”). Car Stackers maintained a business           S.W.2d 660, 661–62 (1951). If there is more than a scintilla
relationship with Appellee, but had failed or delayed making        of such evidence to support the finding, the claim is sufficient
payments to Appellee for goods sold over a period of time. In       as a matter of law, and any challenges go merely to the weight
July 1993, Appellant signed a guaranty agreement that made          to be accorded the evidence. Browning–Ferris, Inc. v. Reyna,
him personally liable for the debt owed by Car Stackers. The        865 S.W.2d 925, 928 (Tex.1993).
guaranty stated that payment of the debt was due on or before
August 1, 1993. When neither Car Stackers nor Appellant              [4]    [5] A “no evidence” point of error may only be
paid the debt by August 1, Appellee sent a demand letter to         sustained when the record discloses one of the following: (1)
Appellant. Appellant sent a letter reaffirming his intent to pay,   a complete absence of evidence of a vital fact; (2) the court is
but the payment was never made. Appellee sued both Car              barred by rules of law or evidence from giving weight to the
Stackers and Appellant. The trial court found for Appellee.         only evidence offered to prove a vital fact; (3) the evidence
                                                                    offered to prove a vital fact is no more than a mere scintilla
                                                                    of evidence; or (4) the evidence establishes conclusively the
                                                                    opposite of a vital fact. Juliette Fowler Homes, Inc. v. Welch
                STANDARDS OF REVIEW
                                                                    Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990); Robert
All of Appellant's points of error address the sufficiency of       W. Calvert, “No Evidence” and “Insufficient Evidence”
the evidence at trial, and the related conclusions of law. The      Points of Error, 38 TEX.L.REV. 361 (1960). There is some
points of error allege that the evidence was established as         evidence when the proof supplies a reasonable basis on which
a matter of law, that there was no evidence to support the          reasonable minds may reach different conclusions about the
findings of the trial court, that the trial court's findings were   existence of the vital fact. Orozco, 824 S.W.2d at 556.
against the great weight and preponderance of the evidence,
and that there was factually insufficient evidence to support


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


 [6] If an appellant is attacking the legal sufficiency of an
adverse answer to a finding on which he had the burden of
proof, the Texas Supreme Court has stated that the appellant
                                                                                     *185 HOLDING
must, as a matter of law, overcome two hurdles. Victoria Bank
& Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). First,     [13] Appellant's first and second points of errors complain
the record must be examined for evidence that supports the      of the findings of fact made by the trial court. Appellant's
finding, while ignoring all evidence to the contrary. Second,   third point of error complains that the trial court erred in
if there is no evidence to support the fact finder's answer,    concluding that the guaranty was supported by consideration.
then the entire record must be examined to see if the contrary  Specifically, Appellant argues that the evidence established,
proposition is established as a matter of law. Id.; Sterner v.  as a matter of law, that there was no consideration given for
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).               the guaranty. Appellant argues, in the alternative, that the
                                                                failure to find that there was no consideration given for the
                                                                guaranty was against the great weight and preponderance of
            FACTUAL SUFFICIENCY POINTS                          the evidence. Appellant also alleges that the there was no
                                                                evidence and insufficient evidence to support the findings of
 [7] [8] Like legal sufficiency, factual sufficiency points the trial court.
depend on who has the burden of proof. If the party attacking
the adverse finding had the burden of proof, then he must        [14] Findings of fact entered in a case tried to the court
show that the finding was against the “great weight and         are of the same force and dignity as a jury's answers to jury
preponderance” of the evidence. If the party attacking the      questions. Anderson v. City of Seven Points, 806 S.W.2d
adverse finding did not have the burden of proof, then he must  791, 794 (Tex.1991). The trial court's findings of fact are
show that the evidence was insufficient to support the adverse  reviewable for legal and factual sufficiency of the evidence
finding. Croucher, 660 S.W.2d at 58; Raw Hide, 766 S.W.2d       to support them by the same standards that are applied in
at 275.                                                         reviewing the legal or factual sufficiency of the evidence
                                                                supporting a jury's answer to a jury question. Arena v. Arena,
 [9] [10] An assertion that the evidence is “insufficient” 822 S.W.2d 645, 650 (Tex.App.—Fort Worth 1991, no writ);
to support a fact finding means that the evidence supporting    Raposa v. Johnson, 693 S.W.2d 43, 45 (Tex.App.—Fort
the finding is so weak or that the evidence to the contrary     Worth 1985, writ ref'd n.r.e.).
is so overwhelming that the answer should be set aside and
a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823        [15]     [16]    [17] A guaranty agreement is a contract in
(Tex.1965). We are required to consider all of the evidence     which one party agrees to be responsible for the performance
in the case in making this determination and, if reversing,     of another party even if he does not have direct control.
to detail that evidence in the opinion. Jaffe Aircraft Corp. v. A written contract presumes that there was consideration
Carr, 867 S.W.2d 27, 29 (Tex.1993).                             given for its execution. See Wright v. Robert & St. John
                                                                Motor Co., 122 Tex. 278, 282, 58 S.W.2d 67, 69 (1933);
 [11] [12] In reviewing a point of error asserting that an Hargis v. Radio Corp. of America, Electronic Components,
answer is “against the great weight and preponderance” of the   539 S.W.2d 230, 232 (Tex.Civ.App.—Austin 1976, no writ).
evidence, we must consider and weigh all of the evidence,       The burden of proof was on Appellant to show that there
both the evidence that tends to prove the existence of a vital  was a failure of consideration. Maykus v. Texas Bank & Trust
fact as well as evidence that tends to disprove its existence.  Co., 550 S.W.2d 396, 398 (Tex.Civ.App.—Dallas 1977, no
Ames v. Ames, 776 S.W.2d 154, 158–59 (Tex.1989), cert.          writ). Because Appellant had the burden of proof, it was not
denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939          appropriate for him to allege that there was no evidence and
(1990); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). So        insufficient evidence to support the fact finding. Accordingly,
considering the evidence, if a finding is so contrary to the    we overrule point of error two and will address points of error
great weight and preponderance of the evidence as to be         one and three.
manifestly unjust, the point should be sustained, regardless
of whether there is some evidence to support it. Watson v.       [18] [19] Appellant and Appellee entered into the guaranty
Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re        agreement independently of the transaction that resulted in
King's Estate, 244 S.W.2d at 661.                               the debt owed to Appellee. If a guaranty is entered into



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      5
Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


independently of the transaction that caused the obligation,       Thus, the burden of proof was on Appellant to show that he
then the guaranty must be supported by consideration               was under duress when he signed the guaranty agreement.
independent of the obligation. Fourticq v. Fireman's Fund          Because Appellant had the burden of proving that he signed
Ins. Co., 679 S.W.2d 562, 564 (Tex.App.—Dallas 1984,               the guaranty under duress, it was inappropriate for him to
no writ). Consideration for a guaranty agreement usually           allege that the there was no evidence or that there was
consists of either the suffering of a detriment by the creditor    factually insufficient evidence. Thus, we will only address
or a benefit conferred on the primary debtor. Id.                  points of error four and six. Point of error five is overruled.

Both Appellant's and Appellee's arguments rely on the trial        Duress can be shown by proving the following:
testimony of James Fletcher, president of American Sling.
Appellee argues that Fletcher's testimony that the intent of the               [1] there is a threat to do some act
guaranty agreement was to extend the due date of the past                      which the party threatening has no
due invoices until August 1, 1993, demonstrates that Appellee                  legal right to do. [2] Such threat must
intended to postpone enforcement of the debt. Appellee also                    be of such character as to destroy the
contends that Fletcher's testimony that the guaranty would                     free agency of the party to whom it
allow Appellant to continue doing business with Appellee on                    is directed. It must overcome his will
a cash on delivery basis conferred a benefit on Appellant.                     and cause him to do that which he
                                                                               would not otherwise do, and which he
Appellant counters that Fletcher's testimony that Appellee                     was not legally bound to do. [3] The
waived no right to enforce the past due debt against Car                       restraint caused by such threat must
Stackers demonstrates that Appellee did not intend for there                   be imminent. [4] It must be such that
to be a postponement of enforcement on the past due invoices.                  the person to whom it is directed has
Appellant also argues that no benefit was conferred because                    no present means of protection. [5]
Appellant and Appellee did not do any business after the                       Where a demand made is wrongful
guaranty was signed.                                                           or unlawful, and it is necessary for
                                                                               the party making such demand to
 [20]    [21] Postponement of enforcement of a debt has                        resort to the courts to enforce same,
been held to be sufficient consideration. Swofford v. Tri–                     there is no duress, for the one upon
State Chemicals, Inc., 764 S.W.2d 24, 26 (Tex.App.—El Paso                     whom demand is made has adequate
1989, writ denied). Furthermore, an agreement to continue                      means of protection, and there is no
doing business with a party confers a benefit on that party. See               imminent restraint. [6] But where the
Hargis, 539 S.W.2d at 232. We find that there was evidence                     party making such demand has, or is
to support the finding of the trial court that the guaranty                    supposed to have, the power to injure
agreement was supported by consideration. We further find                      the business or property interests of
that the evidence was not contrary to the great weight and                     the one upon whom such demand is
preponderance of the evidence. *186 Appellant's points of                      made, without resort to the courts to
error one and three are overruled.                                             enforce the demand, and threatens to
                                                                               do an act which would cause such
 [22] Appellant's points of error four through six allege that                 injury, and which he has no right to
the trial court erred in finding that Appellant did not sign                   do, and thereby induces a compliance
the guaranty agreement under duress. Appellant contends                        with his demand, [7] against the will
that he only signed the guaranty after Appellee told Nova                      of such party through fear of injury
Lift, a company doing business with Appellant, that Appellee                   to his business or property interests,
would not turn over a shipment of materials prepaid by Nova                    such threats amount to duress, [8]
Lift unless Appellant paid the past due invoices or signed a                   if it appears that the party making
personal guaranty.                                                             such demand and threat ought not in
                                                                               good conscience to retain the benefit
 [23] Duress is an affirmative defense that must be pled and                   received by reason thereof.
proved by the one claiming the defense. TEX.R.CIV.P. 94.



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Gooch v. American Sling Co., Inc., 902 S.W.2d 181 (1995)


                                                                     Fletcher did not leave directions to withhold the Nova Lift
Dale v. Simon, 267 S.W. 467, 470 (Tex.Comm'n App.1924,
                                                                     order. Shields testified that Appellant did say something like,
judgm't adopted) (citations omitted).
                                                                     “I guess I'm over a barrel,” but that he had no idea what
                                                                     Appellant was talking about. Shields denied that he heard
Appellant contends that he was forced to sign the guaranty
                                                                     Appellant say anything else.
so that Nova Lift could get their shipment. Appellant did
testify that he talked to Fletcher about signing a guaranty
                                                                     Appellant also testified that his signature was evidence of
prior to the actual signing. However, Appellant maintained
                                                                     his disagreement with having to sign the guaranty. Appellant
that he never agreed to sign the guaranty. Appellant testified
                                                                     testified that he was known as William C. Gooch and signed
that Charles Shields, a manager for American Sling, told him
                                                                     all documents, “William C. Gooch.” However, Appellant
that he had been instructed by Fletcher not to turn over the
                                                                     points out that he signed the guaranty agreement, “Bill
shipment to Nova Lift unless Appellant signed the guaranty.
                                                                     Gooch,” thus demonstrating that he was signing it under
Appellant also testified that when he signed the guaranty, he
                                                                     protest. However, the record shows that throughout trial,
told Shields, “You've got me over a barrel and I'm signing
                                                                     Appellant was constantly referred to as “Bill.” In fact, his own
under protest.”
                                                                     attorney referred to him as “Bill Gooch.”
Andy Cauthen, CEO of Nova Lift, stated in an affidavit
                                                                     The issue of duress actually boils down to the credibility of
that Nova Lift had placed an order with Appellee and had
                                                                     the witnesses. Witnesses for Appellant testified that Appellee
agreed to pay for the order in advance. Cauthen stated that
                                                                     refused to turn over the Nova Lift order unless Appellant
when they attempted to pick up the order, they were told that
                                                                     signed the guaranty. Witnesses for Appellee testified that
the order would not be released until Appellant either paid
                                                                     there was never any mention of withholding the Nova Lift
the past due invoices or personally guaranteed payment on
                                                                     order.
the invoices. Cauthen stated that Gooch signed the personal
guaranty, under protest, after Nova Lift “appealed” to him to
                                                                      [24] The fact finder determines the credibility of the
“accommodate American Sling's demands.”
                                                                     witnesses and the weight to be given the testimony of each.
                                                                     McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).
However, Fletcher testified that Appellant agreed to sign the
                                                                     Absent a clear abuse of discretion, the findings of facts will
guaranty a week before he actually signed it. Furthermore,
                                                                     not be disturbed. We hold that Appellant failed to prove
Appellant went to American Sling to sign the agreement.
                                                                     duress as a matter of law. We further hold that the trial court's
Fletcher testified that it was arranged for Appellant to sign
                                                                     finding was not against the great weight and preponderance
the agreement on the day in question because it was assumed
                                                                     of the evidence. Appellant's fourth and sixth points of error
that Appellant would be coming to the office to pick up the
                                                                     are overruled.
Nova Lift order. Fletcher testified that after the August 1st
 *187 due date, he sent Appellant a demand letter. Appellant
                                                                     Appellant's seventh point of error, regarding attorney fees, is
responded by sending a letter reaffirming his intention to pay
                                                                     premised upon sustaining any of Appellant's first six points of
the debt.
                                                                     error. Because we have overruled those points of error, point
                                                                     of error seven is also overruled.
Charles Shields testified that he never told Appellant or
Nova Lift that Nova Lift would not receive the order unless
                                                                     The judgment of the trial court is affirmed.
Appellant signed the guaranty. Shields also testified that


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                7
Guthery v. Taylor, 112 S.W.3d 715 (2003)


                                                                       internal affairs report. V.T.C.A., Government
                                                                       Code §§ 614.022, 614.023.
                     112 S.W.3d 715
                Court of Appeals of Texas,                             4 Cases that cite this headnote
                  Houston (14th Dist.).

            Kerry GUTHERY, Appellant,                            [2]   Appeal and Error
                            v.                                            Cases Triable in Appellate Court
     Earnest B. TAYLOR, in his Official Capacity                       Generally, matters of statutory construction are
      as Chief of Police of the Sugar Land Police                      legal questions, subject to de novo review.
  Department, and the City of Sugar Land, Appellees.
                                                                       2 Cases that cite this headnote
       No. 14–02–00743–CV.           |   July 17, 2003.
                                                                 [3]   Mandamus
Police officer, who received disciplinary suspension based
                                                                          Conduct of hearing or trial
on investigation stemming from citizen's complaint, filed
petition for writ of mandamus to compel police chief and               Mandamus
city to withdraw disciplinary action taken against him and to             Right of review
restore his back pay and benefits. The 268th District Court,           An original proceeding for a writ of mandamus
Fort Bend County, Brady G. Elliott, J., granted summary                initiated in the trial court is a civil action subject
judgment motion of city and police chief, and denied                   to trial and appeal on substantive law issues and
police officer's motion for summary judgment. Police officer           rules of procedure as any other civil suit.
appealed. The Court of Appeals, John S. Anderson, J., held
that notice of proposed disciplinary action provided by police         1 Cases that cite this headnote
chief to police officer did not comply with requirements
of statutes governing complaints against law enforcement         [4]   Mandamus
officers, and thus, chief had duty to refrain from taking                 Ministerial acts in general
disciplinary action against officer.
                                                                       A writ of mandamus will issue to compel a
                                                                       public official to perform a ministerial act; an
Reversed and rendered.
                                                                       act is ministerial when the law clearly delineates
                                                                       the duty to be performed by the official with
                                                                       sufficient certainty that nothing is left to the
 West Headnotes (15)                                                   exercise of discretion.

                                                                       2 Cases that cite this headnote
 [1]    Municipal Corporations
           Charges
                                                                 [5]   Mandamus
        Notice of proposed disciplinary action provided                   Matters of discretion
        by police chief to police officer did not
                                                                       A writ of mandamus will not issue to compel a
        comply with requirements of statutes governing
                                                                       public official to perform an act which involves
        complaints against law enforcement officers,
                                                                       an exercise of discretion.
        and thus, chief had duty to refrain from taking
        disciplinary action against officer; officer was               Cases that cite this headnote
        only provided with chief's notice charging officer
        with violations, officer was not presented with
                                                                 [6]   Mandamus
        affidavit from citizen making complaint or
                                                                          Matters of discretion
        anything signed by her, and there was nothing
        to indicate officer was presented with affidavits              There is one exception to rule that a writ of
        from any other witnesses or presented with                     mandamus will not issue to compel a public
                                                                       official to perform an act which involves an



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Guthery v. Taylor, 112 S.W.3d 715 (2003)


        exercise of discretion: a writ of mandamus may              If possible, an appellate court must ascertain
        issue in a proper case to correct a clear abuse of          legislature's intent from language of a statute and
        discretion by a public official.                            not resort to extraneous matters for an intent not
                                                                    stated in the statute.
        3 Cases that cite this headnote
                                                                    2 Cases that cite this headnote
 [7]    Mandamus
           Ministerial acts in general                       [12]   Statutes
        When a statute delineates an act an official is                  Purpose
        to perform with sufficient certainty so nothing             Statutes
        is left to the exercise of discretion, the case                  Statute as a Whole; Relation of Parts to
        involves only performance of a ministerial act,             Whole and to One Another
        and is subject to mandamus.                                 Statutes
                                                                         Construction in View of Effects,
        1 Cases that cite this headnote
                                                                    Consequences, or Results
                                                                    When interpreting a statute, an appellate court
 [8]    Appeal and Error                                            considers the entire act, its nature and object, and
           Review Dependent on Mode of Trial in                     the consequence that would follow from each
        Lower Court                                                 construction.
        An appellate court looks to procedure used to
        resolve issue at trial to determine standard of             Cases that cite this headnote
        review on appeal.
                                                             [13]   Statutes
        11 Cases that cite this headnote
                                                                         Purpose
                                                                    An appellate court must reject any statutory
 [9]    Statutes                                                    interpretation that defeats the legislative
             Intent                                                 purpose.
        A court's objective in construing a statute is to
        determine and give effect to legislature's intent.          Cases that cite this headnote

        2 Cases that cite this headnote
                                                             [14]   Statutes
                                                                         Similarity or difference
 [10]   Statutes                                                    Statutes
              Plain language; plain, ordinary, common,                   Other Statutes
        or literal meaning
                                                                    Statutes
        In construing a statute, an appellate court                      Similar or Related Statutes
        presumes legislature intended plain meaning of
                                                                    When construing a statutory word or phrase, a
        words it used.
                                                                    court may take into consideration the meaning of
        Cases that cite this headnote                               the same or similar language used elsewhere in
                                                                    the act or in another act of similar nature.

 [11]   Statutes                                                    9 Cases that cite this headnote
             Language and intent, will, purpose, or
        policy
                                                             [15]   Statutes
        Statutes                                                         Other Statutes
             Extrinsic Aids to Construction
                                                                    When the same or a similar term is used in the
                                                                    same connection in different statutes, the term


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Guthery v. Taylor, 112 S.W.3d 715 (2003)


        will be given the same meaning in one as in the            appellees, to withdraw the disciplinary action taken against
        other, unless there is something to indicate that a        him and to restore his back pay and benefits.
        different meaning was intended.
                                                                   The parties filed cross-motions for summary judgment,
        9 Cases that cite this headnote                            urging competing interpretations of the statutes at issue. The
                                                                   trial court granted appellees' motion and denied Guthery's
                                                                   motion, ordering that he take nothing.

Attorneys and Law Firms                                            We reverse the summary judgment in favor of appellees
                                                                   and render judgment in favor of Guthery (1) declaring
*717 Gregory B. Cagle, League City, for appellants.                appellees' actions violated sections 614.022 and 614.023, and
                                                                   (2) ordering appellees to withdraw the disciplinary action and
Meredith Rene Riede, Sugar Land, for appellees.
                                                                   restore Guthery's back pay and benefits.
Panel consists of Justices JOHN S. ANDERSON,
SEYMORE, and GUZMAN.
                                                                                     *718 FACTUAL AND
                                                                              PROCEDURAL BACKGROUND 1
                         OPINION
                                                                   On January 29, 2000, Guthery, a police officer, decided to
JOHN S. ANDERSON, Justice.
                                                                   disperse a party at 55 Ashbury Park. He knocked on the front
This police disciplinary case requires the court to construe       door with his flashlight, damaging the door. On February
Texas Government Code sections 614.022 and 614.023,                2, 2000, Mrs. Scraper, a citizen, telephoned the Sugar Land
which apply only to those police officers who are not covered      Police Department (“SLPD”), complaining an officer had
by a civil service statute. TEX. GOV'T CODE ANN. §                 damaged her door on January 29, 2000.
614.021(3) (Vernon 1994). Section 614.022 provides: “To
be considered by the head of a ... police department, the          SLPD determined Guthery was the only officer at Scraper's
complaint must be: (1) in writing; and (2) signed by the person    house that night. After reviewing the incident report,
making the complaint.” TEX. GOV'T CODE ANN. § 614.022              Guthery's supervisor made notes on the report and returned it
(Vernon 1994). Section 614.023 provides:                           to Guthery to obtain more information about how the damage
                                                                   might have occurred. 2 Guthery responded to the questions
  (a) A copy of a signed complaint against a law enforcement
                                                                   that day in an e-mail. 3 After receiving Guthery's answers,
  officer, fire fighter, or police officer shall be given to the
                                                                   the SLPD's Professional Standards Division investigated the
  officer or employee within a reasonable time after the
                                                                   incident to determine whether any state laws or city policies
  complaint is filed.
                                                                   had been violated. The investigation included meeting with
  (b) Disciplinary action may not be taken against the officer     Mrs. Scraper at her residence and photographing the damage.
  or employee unless a copy of the signed complaint is given       Additionally, Guthery supplied a written statement of the
  to the officer or employee.                                      incident and was asked to provide a copy of the audio tape
                                                                   from that night. Guthery, however, was unable to provide an
TEX. GOV'T CODE ANN. § 614.023 (Vernon 1994).                      audio tape from that night because he failed to record this
                                                                   particular event.
The case arises because appellant, Kerry Guthery, received a
disciplinary suspension based on an investigation stemming         The SLPD Professional Standards Division investigated the
from a citizen's complaint. Guthery subsequently filed suit        complaint as possible violations of state criminal law and
in the trial court, seeking a declaratory judgment delineating     city policies. During the investigation, there were multiple
his rights under sections 614.022 and 614.023. Guthery also        allegations against Guthery. The investigators ultimately
sought injunctive relief, or, alternatively, a writ of mandamus    concluded Guthery caused damage to Scraper's front door
to compel Sugar Land Police Chief Earnest B. Taylor, in            when he struck it several times with his flashlight, denting
his capacity of Chief of Police, and the City of Sugar Land,       the wood surface and causing a panel of glass to break. The



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Guthery v. Taylor, 112 S.W.3d 715 (2003)


investigators also determined that Guthery failed to activate    also argued the Notice given to Guthery at the completion
his tape recorder during the incident.                           of the investigation and before any disciplinary actions were
                                                                 taken was proper.
Police Chief Taylor reviewed the investigation report,
and Guthery received a “Notice of Proposed Disciplinary          Following a hearing, the trial court granted appellees' motion
Action” (“Notice”) on April 7, 2000. Chief Taylor's proposal     and denied Guthery's motion. The trial court ordered Guthery
to suspend Guthery for three days was included in the Notice,    take nothing on his claims and causes of action against
and Taylor requested Guthery to appear at a meeting on           appellees.
April 13, 2000, in order to respond. 4 *719 The Notice was
signed by Chief Taylor. After meeting with Guthery on April
13, 2000, Chief Taylor approved the suspension. Guthery                            ISSUES PRESENTED
appealed the disciplinary action to the City's Employees
Board of Appeals, and after a hearing, the board reduced the      [1] Guthery raises two issues on appeal. In issue one, he
suspension to one day.                                           argues, “A copy of the signed complaint was not given to
                                                                 [Guthery] within a reasonable time after it was filed and
Guthery then filed a petition for writ of mandamus, asking       before disciplinary action was taken and the determination
the trial court to direct Chief Taylor to withdraw the           of ‘reasonable’ is for the fact finder.” In issue two, he
disciplinary action because it was imposed in violation of       argues, Chief Taylor “considered a complaint against a
Texas Government Code section 614.023(b), and to award           police officer ... which was not in writing and signed by
Guthery full back pay and benefits lost as a result of the       the complainant as required by [Texas Government Code
disciplinary action. Additionally, Guthery sought to recover     section 614.022].” As part of issue two, Guthery reiterates his
all attorney's fees incurred. Guthery subsequently amended       argument that Chief Taylor did not provide him with a copy
his original petition and added the City of Sugar Land as        of the signed complaint within a reasonable time.
a defendant. Further, he sought relief under the Uniform
Declaratory Judgments Act, asking the court to declare           In response to issue one, appellees argue that determination
the acts of the defendants to be in violation of the Texas       of “reasonable time” is a question of law. In response
Government Code. 5                                               to issue two, they argue the “complaint” that must be
                                                                 signed in the present case was the “Notice of Proposed
Guthery and appellees filed cross-motions for summary            Disciplinary Action,” not Scraper's complaint. They also
judgment, setting forth competing constructions of Texas         argue the complaint was given to Guthery “within *720 a
Government Code sections 614.022 and 614.023. Guthery            reasonable time” because it was given to him before Chief
argued appellees' actions violated section 614.022 because       Taylor took disciplinary action against Guthery.
there was no written and signed complaint from Mrs. Scraper,
the owner of the residence where the damage occurred.            Thus, the controlling issue is one of statutory construction:
Guthery also argued appellees could not rely on the Notice       under the facts of this case, does the Notice suffice as
because it included the discipline to be imposed, was            the “complaint” which must be signed and in writing, and
delivered after conclusion of the investigation and was not      given to the officer “within a reasonable time,” under Texas
signed by Scraper. Guthery noted, “at the conclusion of the      Government Code sections 614.022 and 614.023? Only if we
investigation would not be ‘within a reasonable time after the   determine the Notice suffices as the “complaint” must we
complaint is filed’ as required by [section 614.023(a) ].”       decide whether the Notice was given to Guthery “within a
                                                                 reasonable time.” Accordingly, after setting forth the standard
Appellees' motion for summary judgment was based on the          of review, we begin by addressing Guthery's issue two.
following: (1) compliance with sections 614.022 and 614.023
is not mandatory; and, in the alternative, (2) the procedures
taken by appellees did comply with these sections. Appellees                 STANDARD OF REVIEW AND
urged the court to find that Mrs. Scraper's signature was not              NATURE OF JUDGMENT SOUGHT
statutorily required on the complaint, and that Chief Taylor's
signature was sufficient because he was the officer who           [2] The parties do not dispute the relevant facts. Therefore,
charged Guthery and proposed disciplinary action. Appellees      this is a proper case for summary judgment. City of Garland



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
Guthery v. Taylor, 112 S.W.3d 715 (2003)


v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000).            Unauthorized Practice of Law Comm. v. Jansen, 816 S.W.2d
When, as here, parties file cross-motions for summary             813, 814 (Tex.App.-Houston [14th Dist.] 1991, writ denied)
judgment, each party bears the burden of establishing it is       (case submitted on agreed stipulation of facts and motion for
entitled to judgment as a matter of law. Id. When the trial       summary judgment).
court grants one party's motion for summary judgment and
denies the other, we review both motions; and, if we find the
trial court erred, we will reverse and render the judgment the
                                                                                         DISCUSSION
trial court should have rendered. Id.; Bradley v. State ex rel.
White, 990 S.W.2d 245, 247 (Tex.1999). Generally, matters         Texas Government Code section 614.022 provides, “To
of statutory construction are legal questions, subject to de      be considered by the head of a ... police department, the
novo review. See State Dep't of Highways & Pub. Transp. v.        complaint must be: (1) in writing; and (2) signed by the
Gonzalez, 82 S.W.3d 322, 327 (Tex.2002).                          person making the complaint.” TEX. GOV'T CODE ANN. §
                                                                  614.022 (Vernon 1994). It is undisputed that Chief Taylor is
 [3] [4] [5] [6] [7] An original proceeding for a writ of         the head of the SLPD. It is undisputed that the investigation
mandamus initiated in the trial court is a civil action subject   of Guthery arose from an incident brought to the attention
to trial and appeal on substantive law issues and rules of        of the Sugar Land Police when a citizen called to report
procedure as any other civil suit. Anderson v. City of Seven      damage to her door. It is also undisputed that the citizen never
Points, 806 S.W.2d 791, 792 n. 1 (Tex.1991). A writ of            provided SLPD or Chief Taylor with a written and signed
mandamus will issue to compel a public official to perform        complaint. Finally, it is undisputed that Chief Taylor signed
a ministerial act. Id. at 793. An act is ministerial when the     the “Notice of Proposed Discipline,” which Guthery received
law clearly delineates the duty to be performed by the official   on April 7, 2000, six days before he met with Chief Taylor.
with sufficient certainty that nothing is left to the exercise of We must therefore decide whether, as appellees argue, the
discretion. Id. A writ of mandamus will not issue to compel       Notice suffices as the written and signed complaint required
a public official to perform an act which involves an exercise    by section 614.022.
of discretion. Id. There is one exception: a writ of mandamus
may issue in a proper case to correct a clear abuse of discretion  [9]    [10]     [11]      [12]     [13]    A court's objective in
by a public official. Id. When a statute delineates the act       construing a statute is to determine and give effect
an official is to perform with sufficient certainty so nothing    to the legislature's intent. Tex–Air Helicopters, Inc. v.
is left to the exercise of discretion, the case involves only     Galveston County Appraisal Review Bd., 76 S.W.3d 575,
performance of a ministerial act, and is subject to mandamus.     581 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).
See id.                                                           We presume the legislature intended the plain meaning of
                                                                  the words it used. Id. If possible, we must ascertain the
 [8] Under the Uniform Declaratory Judgments Act, a person        legislature's intent from the language of the statute and not
whose rights are affected by a statute may have a court           resort to extraneous matters for an intent not stated in the
determine any question of construction arising under the          statute. Id. When interpreting a statute, we consider the
statute and may obtain a declaration of his rights under          entire act, its nature and object, and the consequence that
the same. See TEX. CIV. PRAC. & REM.CODE ANN.                     would follow from each construction. Id. We must reject any
§§ 37.002, .004 (Vernon 1997). We review declaratory              statutory interpretation that defeats the legislative purpose.
judgments under the same standards as other judgments             Id. In interpreting the provisions of the Government Code
and decrees. See TEX. CIV. PRAC. & REM.CODE ANN.                  in question, we may look to the Code Construction Act for
§ 37.010 (Vernon 1997); City of Galveston v. Giles, 902           assistance. See TEX. GOV'T CODE ANN. § 1.002 (Vernon
S.W.2d 167, 170 (Tex.App.-Houston [1st Dist.] 1995, no            1988) (stating Code Construction Act applies to construction
writ). We look to the procedure used to resolve the issue at      of each provision of the Code, except as otherwise provided);
trial to determine the standard of review on appeal. Giles,       TEX. GOV'T CODE ANN. § 311.002 (Vernon 1998) (stating
902 S.W.2d at 170. Here, because the trial court resolved         chapter applies to each code enacted by 60th or subsequent
the case on competing motions for summary judgment in the         legislature as part of state's continuing statutory revision
face of undisputed facts, we review the propriety of the trial    program).
court's denial of the declaratory judgment under the same
standards we apply to the summary judgment. See *721



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           5
Guthery v. Taylor, 112 S.W.3d 715 (2003)


In interpreting the statute, we may consider the title or           employee receiving the anonymous complaint certifies in
caption. See TEX. GOV'T CODE ANN. § 311.023(7)                      writing, under oath, that the complaint was anonymous.
(Vernon 1998); Southwestern Bell Tel. Co. v. Houston Indep.         This subsection does not apply to an on-the-scene
Sch. Dist., 397 S.W.2d 419, 421–22 (Tex.1965). Section              investigation that occurs immediately after an incident
614.022 is captioned: “Complaint to be in Writing and               being investigated if the limitations of this subsection
Signed by Complainant.” TEX. GOV'T CODE ANN. §                      would unreasonably hinder the essential purpose of the
614.022 (Vernon 1994). 6 Neither complaint nor complainant          investigation or interrogation. If the limitation would
is defined in sections 614.022 and 614.023.                         hinder the investigation or interrogation, the fire fighter
                                                                    or police officer under investigation must be furnished, as
 [14]     [15] Nevertheless, “[w]ords and phrases that have         soon as practicable, a written statement of the nature of the
acquired a technical or particular meaning, whether by              investigation, the name of each complaining party, and the
legislative definition or otherwise, shall be construed             complaint, affidavit, or statement.
accordingly.” TEX. GOV'T CODE ANN. § 311.011(b)                     TEX. LOC. GOV'T CODE ANN.. § 143.123(f) (Vernon
(Vernon 1998); see Deltenre v. State, 808 S.W.2d 97, 101             1999) (emphasis added). 9
(Tex.Crim.App.1991) (concluding the term “peace officer”          Thus, like Government Code section 614.022, Local
has acquired technical meaning by legislative definition).        Government Code section 143.123(f) contains a requirement
Moreover, when construing a statutory word or phrase, a           that the complaint be in writing. A signature is implicitly
court may take into consideration the meaning of the same or      required because the complaint must be verified. The two
similar language used elsewhere in the act or in another act      sections appear to be of similar nature.
of similar nature. L & M-Surco Mfg., Inc. v. Winn Tile Co.,
580 S.W.2d 920, 926 (Tex.Civ.App.-Tyler 1979, writ dism'd).        *723 Section 143.123 is part of the Fire Fighter and Police
When the same or a similar term is used in *722 the same          Officer Civil Service Act (“CSA”). See Klinger v. City of San
connection in different statutes, the term will be given the      Angelo, 902 S.W.2d 669, 671 (Tex.App.-Austin 1995, writ
same meaning in one as in the other, unless there is something    denied). The purpose of the CSA is to “to secure efficient
to indicate that a different meaning was intended. Id. 7          fire and police departments composed of capable personnel
                                                                  who are free from political influence and who have permanent
“Complainant” is defined in Local Government Code Section         employment tenure as public servants.” TEX. LOC. GOV'T
143.123, as “a person claiming to be the victim of misconduct     CODE ANN.. § 143.001(a) (Vernon 1999); Klinger, 902
by a fire fighter or police officer.” TEX. LOC. GOV'T CODE        S.W.2d at 671. The purpose underlying Local Government
                                                                  Code section 142.123 is not inconsistent with the apparent
ANN.. § 143.123(a)(1) (Vernon 1999). 8 Section 143.123(f)
                                                                  purpose of Government Code section 614.022.
also provides in relevant part:

                                                                  Finally, the legislative history of section 614.022 suggests
  An investigator may not conduct an interrogation of a           the similar nature of the two sections. Section 614.022 was
  fire fighter or police officer based on a complaint by          created in 1969, and originated as Senate Bill 148. See Act
  a complainant who is not a peace officer unless the             of May 16, 1969, 61st Leg., R.S., ch. 407, § 1, 1969 Tex.
  complainant verifies the complaint in writing before a          Gen. Laws 1333. As originally drafted, Senate Bill 148
  public officer who is authorized by law to take statements      was intended to amend Texas Revised Civil Statutes Article
  under oath. In an investigation authorized under this           1269m, the Firemen's and Policemen's Civil Service Act,
  subsection, an investigator may interrogate a fire fighter or   i.e., the precursor of present Local Government Code section
  police officer about events or conduct reported by a witness    142.123. See HOUSE COMM. ON URBAN AFFAIRS,
  who is not a complainant without disclosing the name of         BILL ANALYSIS, Tex. S.B. 148, 61st Leg., R.S. (1969); see
  the witness. Not later than the 48th hour before the hour on    also original bill draft in BILL FILE, Tex. S.B. 148, 61st Leg.,
  which an investigator begins to interrogate a fire fighter or   R.S. (1969). 10 The Senate Committee on Jurisprudence,
  police officer regarding an allegation based on a complaint,    however, reported the bill adversely and substituted its own
  affidavit, or statement, the investigator shall give the fire   version, which did not contain any reference to Article
  fighter or police officer a copy of the affidavit, complaint,   1269m or the Firemen's and Policemen's Civil Service Act.
  or statement. An interrogation may be based on a complaint      See “Committee Substitute for Senate Bill 148” in BILL
  from an anonymous complainant if the departmental               FILE, Tex. S.B. 148. The Committee Substitute version was


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Guthery v. Taylor, 112 S.W.3d 715 (2003)


passed and ultimately became Texas Revised Civil Statute                         external, coming from the Dallas
Article 6252–20, which was subsequently codified in Texas                        County Sheriff's Office, the entire
Government Code sections 614.021–614.023. See Act of May                         investigation began within the police
4, 1993, 73rd Leg., R.S., ch. 268, § 1, secs. 614.021–.023,                      department. Officer James testified
1993 Tex. Gen. Laws 583, 678–79.                                                 that on October 19, 1979, he
                                                                                 gave Fudge his letter of complaint
Given what appears to be the similar nature of sections                          and affidavits concerning all three
141.123 and 614.022, and considering the definition of                           incidents. He directed Fudge to
“complainant” in section 141.123(a)(1) as the “victim of                         respond to the specific acts of
misconduct,” we construe the “complaint” that must be                            misconduct and Fudge did so on that
signed and in writing to be the victim's complaint, in this case                 day. The appellees argue that Fudge
Mrs. Scraper's. Thus, the “Notice of Proposed Disciplinary                       was aware of, understood, and replied
Action” provided by Chief Taylor to Guthery does not suffice                     to each of the charges of misconduct
as the “complaint” which must be signed and in writing, and                      for which he was discharged and
given to the officer “within a reasonable time,” as required by                  that the complaint against him was
Texas Government Code sections 614.022 and 614.023. 11                           valid. We agree. The complaint was in
                                                                                 writing, signed by the person making
In support of their position the Notice fulfilled the                            the complaint, and presented to the
requirements of sections 614.022 and 614.023., appellees                         affected officer, Robert Fudge, prior to
direct our attention to Fudge v. Haggar, 621 S.W.2d 196                          the taking of disciplinary action. It was
(Tex.Civ.App.-Texarkana 1981, writ ref'd n.r.e.). In Fudge,                      in compliance with Tex.Rev.Civ. Stat.
the appellate court concluded a letter of complaint provided                     Ann. art. 6252–20....
to a police officer at the conclusion of an internal affairs
                                                                   Id. at 198.
investigation satisfied the requirements of former Texas
Revised Civil Statute 6252–20 even though the investigation
                                                                   Thus, the Fudge court addressed a situation in which an
was prompted by a call from outside the police department.
                                                                   internal investigation produced a complaint supported by
Id. at 198.
                                                                   signed affidavits, and the court held such a complaint
                                                                   complied with the precursor statute to sections 614.022
Fudge, however, is distinguishable. In Fudge, a member
                                                                   and 614.023. In the present case, however, we only have
of the Dallas County Sheriff's Department called a Dallas
                                                                   Chief Taylor's Notice to Guthery, charging Guthery with the
Police Department internal affairs investigator to complain
                                                                   violations. Guthery was not presented with an affidavit from
that Fudge, a patrolman with the Dallas Police Department,
                                                                   Mrs. Scraper or anything signed by her. There is nothing to
had engaged in improper conduct in obtaining the release
                                                                   indicate Guthery was presented with affidavits from any other
of a prisoner. Id. at 197. James, the *724 internal
                                                                   witnesses or presented with the internal affairs report. On the
affairs investigator, took affidavits from two pretrial release
                                                                   facts before us, we conclude the procedure in the present case
employees and made a special written report to the chief of
                                                                   was not in compliance with Texas Government Code sections
police concerning the improper conduct. Id. James also wrote
                                                                   614.022 and 614.023. We now turn to the appropriate remedy.
an official letter of complaint, presented it to Fudge, and
showed Fudge the affidavits. Id. Fudge then complied with
                                                                   Section 614.023(b) provides that “[d]isciplinary action may
an instruction to prepare a written response to the complaint.
                                                                   not be taken against the officer ... unless a copy of the
Id. Subsequently, the chief of police discharged Fudge for the
                                                                   signed complaint is given to the officer or employee.” TEX.
conduct that was the subject of the letter of complaint. Id.
                                                                   GOV'T CODE ANN. § 614.023(b) (Vernon 1994) (emphasis
                                                                   added). “ ‘May not’ imposes a prohibition and is synonymous
The appellate court reasoned:
                                                                   with ‘shall not.’ ” TEX. GOV'T CODE ANN. § 311.016(5)
             In this case we deal with an                          (Vernon 1998). Under the undisputed facts of this case,
             internally generated complaint. Even                  we hold Chief Taylor had a clear duty to refrain from
             though the initial information received               taking disciplinary action against Guthery when the only
             by the police department was                          “complaint” offered to satisfy sections 614.022 and 614.023
                                                                   was the Chief's “Notice of Proposed Disciplinary Action.”


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            7
Guthery v. Taylor, 112 S.W.3d 715 (2003)


                                                                        We reverse the summary judgment in favor of appellees
                                                                        and render judgment in favor of Guthery (1) declaring
We sustain Guthery's issue two. Because we sustain Guthery's
                                                                        appellees' actions violated Texas Government Code sections
issue two, it is not necessary to address issue one, by which he
                                                                        614.022 and 614.023, and (2) ordering appellees withdraw
argues he did not receive the “complaint” within a reasonable
                                                                        the disciplinary action and restore Guthery's back pay and
time.
                                                                        benefits.


                       CONCLUSION



Footnotes
1      We derive the factual background not only from the summary judgment proof presented, but also from the pleadings. We recognize
       facts asserted in the pleadings are not competent summary judgment evidence. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904
       S.W.2d 656, 661 (Tex.1995). Nevertheless, both parties concede the facts are undisputed and refer to factual assertions alleged in
       the pleadings.
2      The note read as follows: “Homeowner claims her front door was damaged. Kids claim Officer Guthery beat on the front door, but
       they wouldn't answer. Inference is being made that the Officer damaged the door. Lt. Lund wants the following answered.” Lund
       wanted to know how Guthery knew the defendant's cup contained beer, why Guthery was at the residence, how the defendant was
       identified, and what happened when Guthery went to the front door. When Officer Webster presented the report to Guthery, Guthery
       was told there was no complaint, but the questions needed to be answered for clarification purposes.
3      Prior to answering the questions, Guthery asserted his Garrity rights against compelled self-incrimination. See Garrity v. New Jersey,
       385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967) (holding Fourteenth Amendment protection against coerced statements
       prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office and prohibition extends
       to all, regardless of whether they are policemen or members of body politic).
4      The suspension was to run from April 27, 2000, through April 29, 2000. The rules Guthery was accused of violating were “SLPD Rule
       # 1 Conduct Unbecoming to a Police Employee” and “Chapter 30, Directive 2—Recording Devices.” Guthery was to be suspended
       for causing damage to Mrs. Scraper's front door and for failing to tape record the incident on January 29, 2000.
5      See TEX. CIV. PRAC. & REM.CODE ANN. §§ 37.001–.011 (Vernon 1997 & Supp.2003).
6      This caption was added when the statute was codified in the Government Code. See Act of May 4, 1993, 73rd Leg., R.S., ch. 268,
       § 1, sec. 614.022, 1993 Tex. Gen. Laws 583, 679.
7      The court continued, “This rule applies with particular force where the meaning of a word as used in one act is clear or has been
       judicially determined, and the same word is subsequently used in another act pertaining to the same subject.” L & M-Surco Mfg.,
       Inc. v. Winn Tile Co., 580 S.W.2d 920, 926 (Tex.Civ.App.-Tyler 1979, writ dism'd). As discussed below, we find the definition of
       “complainant” in a subsequently enacted statute. Nevertheless, given the relationship between the two statutes, we apply the rule
       stated in L & M-Surco.
8      Texas Local Government Code section 143.312(b)(1) also contains the identical definition of “complainant.” TEX. LOC. GOV'T
       CODE ANN. . § 143.312(b)(1) (Vernon 1999). The subchapter of which the section is a part applies to municipalities with populations
       of 460,000 or more that operate under a city manager form of government. TEX. LOC. GOV'T CODE ANN. . § 143.301 (Vernon
       1999).
9      Texas Local Government Code section 143.312(g) contains a similar provision prohibiting interrogation “based on a complaint by
       a complainant who is not a fire fighter or a police officer unless the complainant verifies the complaint in writing before a public
       officer who is authorized by law to take statements under oath.” TEX. LOC. GOV'T CODE ANN. . § 143.312(g) (Vernon 1999).
10     The Bill File is available from the Texas State Library and Archives Commission.
11     We also note that adopting appellees' interpretation would result in an officer's being disciplined based on another officer's hearsay
       characterization of a citizen's complaint, as opposed to the actual content of the complaint itself.


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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       8
Texas Bill Analysis, H.B. 639, 3/8/2005, Texas Bill Analysis, H.B. 639, 3/8/2005 (2005)




                                                TX B. An., H.B. 639, 3/8/2005


                                Texas Bill Analysis, 2005 Regular Session, House Bill 639

                                                         March 8, 2005
                                              Texas House Research Organization
                                             79th Legislature, 2005 Regular Session

HB 639

Bailey

SUBJECT: Requiring investigation before disciplining a peace officer or fire fighter

COMMITTEE: Urban Affairs -- favorable, without amendment

VOTE: 6 ayes -- Talton, Wong, A. Allen, Bailey, Blake, Rodriguez

0 nays

1 absent -- Menendez

WITNESSES: For -- Ronald DeLord, Combined Law Enforcement Associations of Texas; Russell Travis, Williamson County
Sheriff's Association

Against -- None

On -- James Jones, Houston Police Department

BACKGROUND: Government Code, chap. 614, subchap. B states that when a complaint is filed against a police officer or
fire fighter, the police officer or fire fighter in question must receive a written copy of the complaint signed by the complainant
before disciplinary action may be taken against him. The subchapter applies to state law enforcement officers and local police
officers and fire fighters who are at-will employees not covered by a civil service statute.

DIGEST: HB 639 would require that after the filing of a complaint, a state or local law enforcement agency or local fire
department would have to conduct an investigation and sufficient evidence would have to be introduced to prove the alleged
misconduct before disciplinary action could be taken. The bill also would expand subchapter B to cover not just fire fighters
and police officers, but fire fighters and peace officers. Further, the subchapter would apply to all state and local peace officers
and fire fighters.

The bill would take effect September 1, 2005, and would apply only to a complaint filed on or after this date.

SUPPORTERS SAY: HB 639 would close a loophole that allows peace officers and fire fighters to be disciplined -- even fired
-- as the result of a complaint without any investigation. HB 639 would do nothing more than ensure that peace officers and
fire fighters receive an investigation after a complaint so they are not at risk of being disciplined over a baseless accusation.
The bill would not affect the ability to suspend an officer pending an investigation and would continue to allow departments to
remove potentially dangerous officers from the streets. Neither would the bill affect a department's ability to give an informal
verbal reprimand to an officer, thereby preserving an effective way to handle complaints.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Texas Bill Analysis, H.B. 639, 3/8/2005, Texas Bill Analysis, H.B. 639, 3/8/2005 (2005)




The bill's silence on the matter of what constitutes sufficient evidence to prove an allegation of misconduct would leave the
discretion to decide what is sufficient in the hands of state and local departments, where it lies already. Therefore, state and
local agencies would lose no authority by the requirement of a sufficient evidence standard.

Current law allows politically powerful people to have an officer fired simply by filing a complaint. Therefore, the only people
who might be deterred by this bill from filing a complaint are those who intend to file baseless complaints for their own personal
benefit. Those who file legitimate claims, which are the majority of complainants, would not be hindered by this bill.

A planned floor amendment would clarify the bill by limiting to indefinite suspension or termination from employment
the disciplinary actions that could not occur before investigation of a complaint. There would have be “evidence” to prove
the complaint, rather than “sufficient evidence.” Also, as amended the bill would not supersede existing meet-and-confer
or collective bargaining agreements covering peace officers or fire fighters that already include provisions for investigating
complaints involving potential disciplinary action.

OPPONENTS SAY: This bill is vague on two major points. Because it does not specify what would constitute disciplinary
action, it might not be possible under the bill to suspend an officer without pay pending an investigation. This could allow
potentially dangerous officers to remain on the streets. Nor is it clear whether disciplinary action could include verbally
reprimanding an officer. For less serious matters, it can be more convenient and cost effective simply to reprimand the officer
verbally rather than launch an investigation, and the bill might preclude this measure.

Neither does the bill define the standard of sufficient evidence. Because of this ambiguity, it is unclear whether a mere
preponderance of the evidence would be sufficient to support the veracity of the complaint or whether the evidence would
have to prove the truth of the allegation by the stricter standard of “beyond a reasonable doubt.” This ambiguity could create
confusion in departments in deciding when an officer could be disciplined.

Additionally, the bill could deter citizens from filing legitimate complaints. People already are more hesitant about filing
complaints against police officers than they are against most other government employees because people often fear that their
complaints will not seriously be considered. By raising the standard under which an officer may be disciplined following a
complaint, people may be even more reluctant to file complaints than is already the case.

Finally, this bill could conflict with the many collective bargaining agreements already in place in several cities across the state.

NOTES: Rep. Bailey plans to offer a floor amendment that would limit to indefinite suspension or termination from employment
the disciplinary actions that could not occur before investigation of a complaint. Before any indefinite suspension or termination
could occur based on a complaint, the complaint would have to be investigated and there would have to be “evidence,” rather
than “sufficient evidence” as in the original bill, to prove any allegation of misconduct. As amended, the bill would not supersede
existing meet-and-confer or collective bargaining agreements covering peace officers or fire fighters that already include
provisions for investigating complaints involving potential disciplinary action. Also, the amendment would add detention
officers and county jailers to those covered by the bill.


TX B. An., H.B. 639, 3/8/2005

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    2
Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

                                                                         Statutes
                                                                              Construction as written
                     47 S.W.3d 486
                 Supreme Court of Texas.                                 Court must construe statutes as written and, if
                                                                         possible, ascertain legislative intent from the
        HELENA CHEMICAL COMPANY and                                      statute's language.
       Hyperformer Seed Company, Petitioners,
                                                                         34 Cases that cite this headnote
                          v.
   Kenneth WILKINS and Tom Wilkins individually,
     and d/b/a Chapotal Farms and Porciones 99                     [2]   Statutes
     Properties, Geen Wilkins and Mark Wilkins,                               Construction based on multiple factors
     individually and d/b/a Tabasco, and Wilkins                         Even when a statute is not ambiguous on its face,
      Family Limited Partnership, Respondents.                           a court can consider other factors to determine
                                                                         the Legislature's intent, including the object
             No. 00–0418. | Argued Feb. 7,                               sought to be obtained, the circumstances of the
            2001. | Decided April 26, 2001.                              statute's enactment, the legislative history, the
                                                                         common law or former statutory provisions,
Farmers filed action against seed seller, alleging violation of          including laws on the same or similar subjects,
Deceptive Trade Practices Act (DTPA), breach of warranties,              the consequences of a particular construction,
and fraud. The 229th Judicial District Court, Starr County,              administrative construction of the statute, and
John A. Pope, III, J., entered judgment on jury verdict                  the title, preamble, and emergency provision.
awarding damages to farmers. Both sides appealed. The Court              V.T.C.A., Government Code § 311.023.
of Appeals, 18 S.W.3d 744, affirmed. Seller filed petition
for review. The Supreme Court, Baker, J., held that: (1)                 69 Cases that cite this headnote
as matter of first impression, farmers' delay in submitting
claims against seed seller to arbitration, as was required
                                                                   [3]   Statutes
by Seed Arbitration Act, did not deprive trial court of
                                                                              Statute as a Whole; Relation of Parts to
jurisdiction to hear farmers' lawsuit; (2) farmers' witness was
                                                                         Whole and to One Another
sufficiently qualified to testify as expert as to suitability of
grain sorghum seed for dry land farming and its susceptibility           Court must always consider the statute as a whole
to charcoal rot disease; (3) expert's testimony on suitability           rather than its isolated provisions.
of seed for dry land farming was sufficiently reliable to be
                                                                         42 Cases that cite this headnote
admissible; (4) evidence supported conclusion that seller's
misrepresentations about seed's characteristics, quality, and
grade amounted to more than mere puffing; and (5) evidence         [4]   Statutes
was sufficient for jury to calculate, with reasonable certainty,              Construing together; harmony
award of lost profit damages.                                            Court should not give one provision of a statute
                                                                         a meaning out of harmony or inconsistent with
Affirmed.                                                                other provisions, although it might be susceptible
                                                                         to such a construction standing alone.
Abbott, J., filed a dissenting opinion, in which Hecht and
Owen, JJ., joined.                                                       38 Cases that cite this headnote


                                                                   [5]   Statutes
 West Headnotes (41)                                                          Mandatory or directory statutes
                                                                         Word “must” in a statute is given a
                                                                         mandatory meaning when followed by a
 [1]     Statutes                                                        noncompliance penalty. V.T.C.A., Government
              Language and intent, will, purpose, or                     Code § 311.016(2, 3).
         policy


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675


        9 Cases that cite this headnote                                4 Cases that cite this headnote


 [6]    Statutes                                                [10]   Alternative Dispute Resolution
             Mandatory or directory statutes                                As ousting jurisdiction of or precluding
        To determine whether the Legislature intended a                resort to courts
        provision to be mandatory or directory, a court                Arbitration scheme established under the Seed
        considers the plain meaning of the words used,                 Arbitration Act was created to provide an
        as well as the entire act, its nature and object, and          alternate forum for farmers to initially submit
        the consequences that would follow from each                   claims, not as a mechanism to preclude farmers'
        construction.                                                  suits altogether. V.T.C.A., Agriculture Code §
                                                                       64.001 et seq.
        32 Cases that cite this headnote
                                                                       2 Cases that cite this headnote
 [7]    Statutes
             Mandatory or directory statutes                    [11]   Statutes
        Even if a statutory requirement is mandatory,                       Mandatory or directory statutes
        this does not mean that compliance is necessarily              To determine whether a statute's timing
        jurisdictional.                                                provision is mandatory, a court first looks to
                                                                       whether the statute contains a noncompliance
        8 Cases that cite this headnote                                penalty; if a provision requires that an act be
                                                                       performed within a certain time without any
 [8]    Statutes                                                       words restraining the act's performance after that
             Mandatory or directory statutes                           time, the timing provision is usually directory.
        When a statute is silent about the consequences                21 Cases that cite this headnote
        of noncompliance, the court looks to the statute's
        purpose to determine the proper consequences.
                                                                [12]   Statutes
        19 Cases that cite this headnote                                    Other Jurisdictions
                                                                       When a state statute is modeled after another
 [9]    Alternative Dispute Resolution                                 jurisdiction's, that jurisdiction's interpretation
             Applicant's default, delay, or laches                     before the Legislature enacts the state statute
                                                                       may be given weight.
        Farmers' delay in submitting claims against
        seed seller to arbitration, as was required by                 Cases that cite this headnote
        Seed Arbitration Act, until trial court granted
        seller's motion to compel arbitration, did not
        deprive trial court of jurisdiction to hear farmers'    [13]   Statutes
        lawsuit, even though delay prompted arbitration                     Other Jurisdictions
        board to refuse to arbitrate matter due to                     When the Legislature looks to another
        inability to investigate crops in field conditions,            jurisdiction's statute, but modifies rather than
        in light of Act's specific authorization for                   adopts some of its provisions, it does so
        trial court to take such delay into account,                   purposefully.
        court's ability to fashion remedy, and lack of
        provision dictating dismissal for noncompliance                4 Cases that cite this headnote
        with timing requirement.V.T.C.A., Agriculture
        Code § 64.004.                                          [14]   Alternative Dispute Resolution




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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

             Constitutional and statutory provisions and           Supreme Court will reverse only if there is an
        rules of court                                             abuse of that discretion.
        Seed arbitration laws are established to protect
                                                                   32 Cases that cite this headnote
        the farmer. V.T.C.A., Agriculture Code § 64.001
        et seq.
                                                            [19]   Evidence
        Cases that cite this headnote                                  Knowledge, experience, and skill in general
                                                                   In deciding if an expert is qualified, trial courts
 [15]   Alternative Dispute Resolution                             must ensure that those who purport to be experts
             Applicant's default, delay, or laches                 truly have expertise concerning the actual subject
        While submission to arbitration under the Seed             about which they are offering an opinion. Rules
        Arbitration Act is mandatory if not waived by the          of Evid., Rule 702.
        seed seller, the Act's timing requirement is not.
                                                                   14 Cases that cite this headnote
        V.T.C.A., Agriculture Code § 64.004.

        Cases that cite this headnote                       [20]   Evidence
                                                                       Necessity and sufficiency
 [16]   Evidence                                                   If an expert relies upon unreliable foundational
            Matters involving scientific or other special          data, any opinion drawn from that data is
        knowledge in general                                       likewise unreliable. Rules of Evid., Rule 702.
        Evidence
                                                                   7 Cases that cite this headnote
            Necessity of qualification
        Evidence
            Necessity and sufficiency                       [21]   Evidence
                                                                       Necessity and sufficiency
        Two-part test governs whether expert testimony
        is admissible: (1) the expert must be qualified,           Expert's testimony is unreliable even when
        and (2) the testimony must be relevant and be              the underlying data is sound if the expert's
        based on a reliable foundation. Rules of Evid.,            methodology is flawed. Rules of Evid., Rule 702.
        Rule 702.
                                                                   7 Cases that cite this headnote
        44 Cases that cite this headnote
                                                            [22]   Evidence
 [17]   Evidence                                                       Physical facts
            Determination of question of competency                Witness was sufficiently qualified to testify as
        Trial court makes the initial determination about          expert as to suitability of grain sorghum seed
        whether an expert is qualified and the proffered           for dry land farming and its susceptibility to
        testimony is relevant and based on a reliable              charcoal rot disease, even though he was not
        foundation. Rules of Evid., Rule 702.                      plant pathologist, where witness, a plant scientist
                                                                   with a doctorate in plant physiology, used his
        55 Cases that cite this headnote                           experience in conducting crop-variety testing to
                                                                   formulate conclusion on basis of research, study
                                                                   of independent tests, and observations regarding
 [18]   Appeal and Error
                                                                   seed's suitability for dry land farming. Rules of
           Competency of witness
                                                                   Evid., Rule 702.
        Evidence
            Determination of question of competency                2 Cases that cite this headnote
        Trial court has broad discretion to determine
        admissibility of expert testimony, and the


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

                                                                    cause” of actual damages, which requires some
 [23]   Evidence                                                    evidence that the defendant's act or omission was
            Sources of Data                                         a cause in fact of the plaintiff's injury. V.T.C.A.,
        Evidence                                                    Bus. & C. § 17.50(a).
            Experiments and results thereof
                                                                    9 Cases that cite this headnote
        Expert's testimony on suitability of grain
        sorghum seed for dry land farming was
        sufficiently reliable to be admissible in farmers'   [27]   Antitrust and Trade Regulation
        action against seed seller, where expert had                    Reliance; causation; injury, loss, or
        20 years experience as a plant scientist and                damage
        conducting and interpreting crop trials and his             In presenting some evidence that the defendant's
        conclusion flowed from his observation of seed              act or omission was a cause in fact of the
        tests and other factors including weather and               plaintiff's injury, under the Deceptive Trade
        weed-control reports, disease publications, other           Practices Act (DTPA), it is not necessary to show
        testing, and comparisons with crops on adjacent             that the harm was foreseeable. V.T.C.A., Bus. &
        farms.                                                      C. § 17.50(a).

        13 Cases that cite this headnote                            5 Cases that cite this headnote


 [24]   Antitrust and Trade Regulation                       [28]   Appeal and Error
             Representations, assertions, and                          Verdict
        descriptions in general
                                                                    In conducting a no-evidence review, the
        Actionable representations under the Deceptive              Supreme Court must view the evidence in a light
        Trade Practices Act (DTPA) may be oral or                   that tends to support the finding of the disputed
        written. V.T.C.A., Bus. & C. § 17.41 et seq.                fact and disregard all evidence and inferences to
                                                                    the contrary.
        9 Cases that cite this headnote
                                                                    3 Cases that cite this headnote
 [25]   Antitrust and Trade Regulation
             Representations, assertions, and                [29]   Appeal and Error
        descriptions in general                                        Sufficiency of Evidence in Support
        Party need not prove intent to make a                       If more than a scintilla of evidence exists, the
        misrepresentation under the Deceptive Trade                 evidence is legally sufficient to support the
        Practices Act (DTPA); making the false                      finding of the disputed fact.
        representation is itself actionable. V.T.C.A.,
        Bus. & C. § 17.46(b)(5, 7).                                 3 Cases that cite this headnote

        8 Cases that cite this headnote
                                                             [30]   Antitrust and Trade Regulation
                                                                        Weight and sufficiency
 [26]   Antitrust and Trade Regulation
                                                                    Evidence of specific representations about grain
            Reliance; causation; injury, loss, or
                                                                    sorghum seed's characteristics and specific
        damage
                                                                    representations about how farmers' crop in
        Antitrust and Trade Regulation                              particular would perform supported conclusion
            Omissions and other failures to act in                  that seller's misrepresentations about seed's
        general; disclosure                                         characteristics, quality, and grade amounted to
        To recover under the Deceptive Trade Practices              more than mere puffing, under the Deceptive
        Act (DTPA), the plaintiff must show that                    Trade Practices Act (DTPA). V.T.C.A., Bus. &
        the defendant's actions were the “producing                 C. § 17.46(b)(5, 7).


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

                                                                     At a minimum, opinions or lost-profit estimates
        10 Cases that cite this headnote                             must be based on objective facts, figures, or
                                                                     data from which the lost-profits amount may be
 [31]   Antitrust and Trade Regulation                               ascertained.
            Weight and sufficiency
                                                                     19 Cases that cite this headnote
        Sales
             Breach of warranty
                                                              [36]   Damages
        Evidence that farmers' neighbor had no adverse
                                                                        Growing crops, grass, shrubbery, or trees
        effect from rotating from cotton to grain and that
        seed seller recommended alleged over-planting                General rule for assessing damages for crop loss
        by farmers, together with evidence about                     is the market value of the lost part of the crop, as
        grain sorghum seed's unsuitability for dryland               measured at maturity, less the cost of harvesting
        farming, was sufficient to rebut possibility of              and marketing the lost part.
        causes of farmers' low yields other than seller's
                                                                     1 Cases that cite this headnote
        seed, which thus supported farmers' Deceptive
        Trade Practices Act (DTPA) and breach of
        warranty claims against seed seller. V.T.C.A.,        [37]   Damages
        Bus. & C. § 17.46(b)(5, 7).                                     Extent of damage in general
                                                                     Damages
        1 Cases that cite this headnote
                                                                        Value of property
                                                                     Law does not demand perfect proof of damages
 [32]   Damages                                                      for crop loss but liberally permits estimates
           Loss of profits                                           of crop value and probable yield, as well as
        Recovery for lost profits does not require that the          cultivating and marketing expenses.
        loss be susceptible to exact calculation; however,
        the injured party must do more than show that it             Cases that cite this headnote
        suffered some lost profits.
                                                              [38]   Antitrust and Trade Regulation
        13 Cases that cite this headnote
                                                                         Profits
                                                                     While “limitation of liability and remedies”
 [33]   Damages                                                      clauses printed on seed seller's invoices, delivery
           Loss of profits                                           tickets, and seed labels were effective to
        Amount of lost profits must be shown by                      limit farmers' recovery for breach of warranty,
        competent evidence with reasonable certainty.                clauses did not preclude farmer' lost-profit
                                                                     recovery for nonwarranty representations or
        10 Cases that cite this headnote                             unconscionability under the Deceptive Trade
                                                                     Practices Act (DTPA). V.T.C.A., Bus. & C. §
 [34]   Damages                                                      17.41 et seq.
           Loss of profits
                                                                     3 Cases that cite this headnote
        Establishing amount of lost profits is a fact-
        intensive determination.
                                                              [39]   Antitrust and Trade Regulation
        1 Cases that cite this headnote                                  Profits
                                                                     Evidence was sufficient for jury to calculate,
 [35]   Damages                                                      with reasonable certainty, award of damages
           Loss of profits                                           to farmers for lost profits resulting from seed
                                                                     seller's deceptive act or unconscionable action,



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

        under Deceptive Trade Practices Act (DTPA),               submitting claims to arbitration is jurisdictional under the
        concerning suitability of seed sold to farmers;           Act. We conclude that it is not, and that the evidence was
        farmer's testimony allowed jury to consider               legally sufficient to support the jury's verdict on liability,
        yield attributable to other seed, recalculate lease       causation, and damages. Accordingly, we affirm the court of
        payments, and regard elevator costs as either             appeals' judgment.
        reflected in yield or refundable so as to be not
        part of net cost calculation. V.T.C.A., Bus. & C.
        § 17.41 et seq.
                                                                                      I. BACKGROUND
        2 Cases that cite this headnote
                                                                  The Wilkinses began farming in 1989 and first planted
                                                                  grain in 1992. Most of their land is nonirrigated dryland.
 [40]   Damages                                                   They purchased a Cherokee-variety grain sorghum seed from
           Loss of Profits                                        Helena Chemical Company in 1992, 1993, and 1994. The
        Lack of a profit history does not, by itself,             Wilkinses claim that when they purchased this seed, they
        preclude a new business from recovering lost              relied on Helena's advertising that it had “excellent dryland
        future profits.                                           yield potential.” Helena also represented that the seed had a
                                                                  “good field tolerance” to charcoal rot, a condition that causes
        2 Cases that cite this headnote                           the grain's stem to weaken and “fall down,” reducing yield.

                                                                  The 1992 crop had a good yield, but the 1993 crop yield
 [41]   Damages
                                                                  was much lower. The Wilkinses claim that Helena's agent
           Loss of profits
                                                                  blamed this low yield on the seeds being planted too close
        Showing lost profit damages with reasonable
                                                                  together and that the agent recommended planting Cherokee
        certainty can be accomplished with a profit
                                                                  seed on the entire tract with increased spacing between seeds.
        history or some other objective data, such as
                                                                  The Wilkinses followed this advice in 1994 with no increase
        future contracts.
                                                                  in yield. Helena claims that insufficient rainfall and soil
        22 Cases that cite this headnote                          moisture depletion brought about by the Wilkinses' planting
                                                                  cotton on part of the property in 1993 caused the reduced
                                                                  yield.

                                                                  In February 1995, the Wilkinses sued Helena alleging
Attorneys and Law Firms
                                                                  Deceptive Trade Practices—Consumer Protection Act
*490 Charles C. Murray, Lisa Powell, Atlas & Hall,                (DTPA) violations, breach of express and implied warranties,
McAllen, for Petitioners.                                         and fraud. In March, Helena filed a plea in abatement and
                                                                  motion to compel nonbinding arbitration under the Act. In
John B. Skaggs, Skaggs & Garza, Michele Nicole Gonzales,          April, the trial court granted Helena's motion and abated the
McAllen, for Respondents.                                         proceedings. Fifteen months later, the Wilkinses submitted
                                                                  their claims to the Texas Plant and Seed Board for arbitration.
Opinion                                                           The Board declined to arbitrate because the crops were no
                                                                  longer in “field condition” and thus the Board could not
Justice BAKER delivered the opinion of the Court, in
                                                                  inspect the crops.
which Chief Justice PHILLIPS, Justice ENOCH, Justice
HANKINSON, Justice O'NEILL, and Justice JEFFERSON
                                                                  The trial court lifted the abatement and the case proceeded to
joined.
                                                                  trial. The jury found for the Wilkinses on all claims except
This is a case of first impression involving *491 the             fraud. It did not find that Helena had acted knowingly. It
                                                                  awarded the Wilkinses $360,000 in damages. The trial court
Texas Seed Arbitration Act. 1 The Act requires that certain
                                                                  also awarded prejudgment interest from the date the Board
defective-seed claims be submitted to arbitration as a
                                                                  declined to arbitrate. Helena and the Wilkinses appealed.
prerequisite to maintaining a legal action against the labeler.
We must decide whether the timeliness requirement for


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

The court of appeals held that Helena had effectively
disclaimed any warranties. 18 S.W.3d at 758. But it                   (a) When a purchaser of seed designed for planting claims
affirmed the judgment on the DTPA claims, holding that                to have been damaged by the failure of the seed to produce
the Board's refusal to arbitrate the Wilkinses' claims did not        or perform as represented by warranty or by the label
jurisdictionally bar their suit. 18 S.W.3d at 751–52. It also         required to be attached to the seed under this subtitle or as
held that the evidence was legally and factually sufficient to        a result of negligence, the purchaser must submit the claim
support the jury's verdict on causation, liability, and damages.      to arbitration as provided by this chapter as a prerequisite
18 S.W.3d at 754–59. Finally, in response to the Wilkinses'           to the exercise of the purchaser's right to maintain a legal
cross-appeal, the court held that the trial court properly            action against the labeler....
calculated prejudgment interest. 18 S.W.3d at 760. Only
                                                                    TEX. AGRIC. CODE § 64.002(a) (emphasis added).
Helena petitioned this Court for review.
                                                                      § 64.004. Effect of Arbitration

                                                                      In any litigation involving a complaint that has been the
         II. TEXAS SEED ARBITRATION ACT
                                                                      subject of arbitration under this chapter, any party may
Helena argues that the trial court did not have jurisdiction over     introduce the report of arbitration as evidence of the facts
the Wilkinses' *492 claims because the Act requires that all          found in the report, and the court may give such weight to
defective-seed claims first be timely submitted to nonbinding         the arbitration board's findings of fact, conclusions of law,
arbitration so the Board may effectively inspect the plants           and recommendations as to damages and costs as the court
under field conditions. Thus, Helena argues, the Wilkinses'           determines advisable. The court may also take into account
delay in submitting their claims for arbitration—which                any findings of the board of arbitration with respect to
caused the Board to refuse to arbitrate—jurisdictionally              the failure of any party to cooperate in the arbitration
barred the claims.                                                    proceedings, including any finding as to the effect of delay
                                                                      in filing the arbitration claim or the arbitration board's
In response, the Wilkinses argue that submitting their                ability to determine the facts of the case.
claims to arbitration is all the Act requires. They posit
                                                                    TEX. AGRIC. CODE § 64.004 (emphasis added).
that Helena's interpretation would render other statutory
provisions meaningless and note that the Act does not                 § 64.005. Arbitration Board
authorize dismissal as a remedy under its arbitration
procedures. Thus, the Wilkinses argue, the court of appeals           (b) As a board of arbitration, the State Seed and Plant Board
correctly held that once they submitted their claims to               shall conduct arbitration as provided by this chapter....
arbitration under the Act, the trial court had jurisdiction to
                                                                    TEX. AGRIC. CODE § 64.005(b) (emphasis added).
hear the claims regardless of whether arbitration actually
occurred.                                                             § 64.006. Arbitration Procedures

                                                                      (a) A purchaser may begin arbitration by filing with
                                                                      the commissioner a sworn complaint and a filing fee, as
                  A. APPLICABLE LAW
                                                                      provided by department rule.... Except in the case of seed
                                                                      that has not been planted, the complaint must be filed within
               1. Texas Seed Arbitration Act                          the time necessary to permit effective inspection of the
                                                                      plants under field conditions.
The Legislature enacted the Act in 1989 to “provide[ ]
for an unbiased third party investigation by the State Seed           ....
and Plant Board of the Texas Department of Agriculture
of complaints concerning seed performance.” HOUSE                      *493 (c) The commissioner shall refer the complaint
COMM. ON AGRICULTURE AND LIVESTOCK, BILL                              and the answer to the arbitration board for investigation,
ANALYSIS, Tex. S.B. 64, 71st Leg., R.S. (1989). Pertinent             findings, and recommendations.
to this appeal, the Act provides:
                                                                      (d) On referral of the complaint for investigation, the
  § 64.002. Requirement of Arbitration                                arbitration board shall make a prompt and full investigation


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

  of the matters complained of and report its findings and          CODE § 311.016(2), (3); Wright v. Ector County Indep.
  recommendations to the commissioner not later than the            Sch. Dist., 867 S.W.2d 863, 868 (Tex.App.—El Paso 1993,
  60th day after the date of the referral, or before a later date   no writ) (“The ordinary meaning of ‘shall’ or ‘must’ is of
  determined by the parties.                                        a mandatory effect.”); Inwood N. Homeowners' Ass'n, Inc.
                                                                    v. Meier, 625 S.W.2d 742, 743 (Tex.Civ.App.—Houston
  (e) The report of the arbitration board shall include findings    [1st Dist.] 1981, no writ) (same); Mitchell v. Hancock, 196
  of fact, conclusions of law, and recommendations as to            S.W. 694, 700 (Tex.Civ.App.—Fort Worth 1917, no writ)
  costs, if any....                                                 (same). The word “ ‘must’ is given a mandatory meaning
                                                                    when followed by a noncompliance penalty.” Harris County
  ....
                                                                    Appraisal Dist. v. Consolidated Capital Props. IV, 795
  (h) The arbitration board shall consider any field inspection     S.W.2d 39, 41 (Tex.App.—Amarillo 1990, writ denied).
  or other data submitted by either party in its report and         However, we have held language that appears to impose a
  recommendation.                                                   mandatory duty to be only directory when this interpretation
                                                                    is most consistent with the Legislature's intent. E.g., Barshop
TEX. AGRIC. CODE § 64.006 (emphasis added).                         v. Medina County Underground Water Conservation Dist.,
                                                                    925 S.W.2d 618, 629 (Tex.1996); Lewis v. Jacksonville Bldg.
                                                                    & Loan Ass'n, 540 S.W.2d 307, 310 (Tex.1976); *494
                                                                    Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630–31
                 2. Statutory Construction
                                                                    (1948).
 [1]     [2]   We must construe statutes as written and,
if possible, ascertain legislative intent from the statute's   [6] [7] [8] To determine whether the Legislature intended
language. Morrison v. Chan, 699 S.W.2d 205, 208               a provision to be mandatory or directory, we consider the
(Tex.1985). Even when a statute is not ambiguous on           plain meaning of the words used, as well as the entire act, its
its face, we can consider other factors to determine the      nature and object, and the consequences that would follow
Legislature's intent, including: the object sought to be      from each construction. Albertson's, Inc. v. Sinclair, 984
obtained; the circumstances of the statute's enactment; the   S.W.2d 958, 961 (Tex.1999); Chisholm v. Bewley Mills, 155
legislative history; the common law or former statutory       Tex. 400, 287 S.W.2d 943, 945 (1956). Even if a statutory
provisions, including laws on the same or similar subjects;   requirement is mandatory, this does not mean that compliance
the consequences of a particular construction; administrative is necessarily jurisdictional. Sinclair, 984 S.W.2d at 961;
construction of the statute; and the title, preamble, and     Hines v. Hash, 843 S.W.2d 464, 467 (Tex.1992); Schepps
emergency provision. TEX. GOV'T CODE § 311.023; Ken           v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938
Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344,     (Tex.1983). When a statute is silent about the consequences of
350 (Tex.2000).                                               noncompliance, we look to the statute's purpose to determine
                                                              the proper consequences. Sinclair, 984 S.W.2d at 961;
 [3] [4] Additionally, we must always consider the statute Schepps, 652 S.W.2d at 937–38; Chisholm, 287 S.W.2d at
as a whole rather than its isolated provisions. Morrison, 699 945.
S.W.2d at 208. We should not give one provision a meaning
out of harmony or inconsistent with other provisions,
although it might be susceptible to such a construction
                                                                                      B. ANALYSIS
standing alone. Barr v. Bernhard, 562 S.W.2d 844, 849
(Tex.1978). We must presume that the Legislature intends an    [9] The parties agree that if the Wilkinses had not
entire statute to be effective and that a just and reasonable submitted their claims to arbitration after the trial court abated
result is intended. TEX. GOV'T CODE § 311.021(2), (3).        the proceedings, any claims subject to the Act would be
                                                              jurisdictionally barred. See TEX. AGRIC. CODE § 64.002(a)
 [5] When used in a statute, the term “must” creates or ( “[T]he purchaser must submit the claim to arbitration ...
recognizes a condition precedent. TEX. GOV'T CODE §           as a prerequisite to the exercise of the purchaser's right to
311.016(3). While Texas courts have not interpreted “must”    maintain a legal action against the labeler.”); see also Hines,
as often as “shall,” both terms are generally recognized as   843 S.W.2d at 469 (holding failure to perform mandatory
mandatory, creating a duty or obligation. See TEX. GOV'T      but nonjurisdictional act while suit is abated for that purpose



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

results in dismissal). However, because the Wilkinses did
submit their claims to the Board, the only issue is whether         [10] Actually, the Act's language and purpose demonstrate
their delay in doing so, and the Board's subsequent refusal to     that the Legislature simply did not contemplate the situation
arbitrate, deprived the trial court of jurisdiction.               presented here—a submission to arbitration where the Board
                                                                   then refuses to arbitrate. Rather, the Legislature created
Helena argues that section 64.006(a)'s requirement that a          this arbitration scheme to provide an alternate forum for
complaint be “filed within the time necessary to permit            farmers to initially submit claims, not as a mechanism to
effective inspection of the plants under field conditions” is      preclude farmers' suits altogether. See HOUSE COMM. ON
mandatory and jurisdictional. The Wilkinses acknowledge            AGRICULTURE AND LIVESTOCK, BILL ANALYSIS,
this statutory timing requirement, but argue that submission       Tex. S.B. 64, 71st Leg., R.S. (1989) (explaining that one
is the mandatory act and that timeliness is merely a factor        reason this Act was passed was that “farmers are often
the trial court may consider. We agree with the Wilkinses'         reluctant to litigate” seed disputes).
interpretation.
                                                                   In addition to the overall statutory objective, we have
Section 64.006(a) states that a purchaser's complaint “must”       historically looked to two factors to determine if the
be filed within the time necessary to permit effective             Legislature intended a provision to be jurisdictional: (1)
inspection under field conditions. The word “ ‘[m]ust’ creates     the presence or absence of specific consequences for
or recognizes a condition precedent.” TEX. GOV'T CODE              noncompliance, Sinclair, 984 S.W.2d at 961–62, and (2) the
§ 311.016(3). The Legislature has instructed us to apply this      consequences that result from each possible interpretation.
definition unless its context “necessarily requires a different    Barshop, 925 S.W.2d at 629. Applying these factors supports
construction.” TEX. GOV'T CODE § 311.016.                          our interpretation that delay in submitting claims is not
                                                                   jurisdictional.
The problem with Helena's position that delay in submitting
a claim to arbitration creates a jurisdictional bar is that we      [11] To determine whether a timing provision is mandatory,
cannot read section 64.006(a) in a vacuum. Read in context,        we first look to whether the statute contains a noncompliance
Helena's interpretation renders other provisions meaningless.      penalty. If a provision requires that an act be performed
In fact, section 64.004 expressly contemplates that a claim        within a certain time without any words restraining the
may be arbitrated and continue on to trial even when a delay in    act's performance after that time, the timing provision is
submission to arbitration prevents the Board from thoroughly       usually directory. Lewis, 540 S.W.2d at 310; Markowsky v.
investigating the claim. It provides:                              Newman, 134 Tex. 440, 136 S.W.2d 808, 812 (1940). Here,
                                                                   the Act states that a purchaser's complaint must be filed
             In any litigation involving a complaint               “within the time necessary to permit effective inspection of
             that has been the subject of arbitration              the plants under field conditions.” TEX. AGRIC. CODE §
             under this chapter ... [t]he court may                64.006(a). However, the Act has no corresponding provision
             also take into account any findings of                dictating dismissal for noncompliance. State v. $435,000, 842
             the board of arbitration with respect to              S.W.2d 642, 644 (Tex.1992) (“If the Legislature had intended
             the failure of any party to cooperate ...             dismissal to be the consequence of a failure to hear a forfeiture
             including any finding as to the effect                case within the prescribed period, it could easily have said
             of delay in filing the arbitration claim              so.”); see also Sinclair, 984 S.W.2d at 962 (“[T]hat section
             or the arbitration board's ability to                 410.253 does not dictate the consequence of noncompliance
             determine the facts of the case.                      is significant when considering the entire statute.”). To
                                                                   the contrary, the Act expressly provides nonjurisdictional
TEX. AGRIC. CODE § 64.004 (emphasis added).
                                                                   consequences by allowing the Board to make findings about
Accepting Helena's argument that section 64.006(a)'s timing
                                                                   any delay and allowing the trial court to consider these
requirement is *495 jurisdictional renders section 64.004
                                                                   findings. See TEX. AGRIC. CODE § 64.004. Thus, we
meaningless because in any case “involving a complaint that
                                                                   conclude the Act's silence about dismissal, coupled with
has been the subject of arbitration under this chapter,” there
                                                                   its provision for other consequences, weighs in favor of a
could not be a “finding as to the effect of delay in filing ...
                                                                   nonjurisdictional interpretation.
or the arbitration board's ability to determine the facts of the
case.”


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

When deciding whether the Legislature intended a                  Further, our interpretation does not render a delay in
particular provision to be jurisdictional, we must also           submitting a claim to arbitration without consequence.
consider the consequences that result from each possible          Indeed, if a purchaser does not submit a claim in time
construction. Chisholm, 287 S.W.2d at 945–46. Under               for the Board or the seller to conduct an effective field
Helena's interpretation, a delay in submitting a claim to         inspection, it does so at its own peril. The Board may make
arbitration precludes any consideration of the claim—by the       findings adverse to the purchaser on this basis. TEX. AGRIC.
Board or a trial court. Because the Board's arbitration is        CODE § 64.004. If the purchaser then sues, the Board's
nonbinding and the trial court is not required to consider        findings and recommendations are admissible, and the Act
the Board's findings, we conclude that Helena's jurisdictional    expressly authorizes the court to both “give such weight to
interpretation of section 64.006's timing requirement leads to    the arbitration board's findings of fact, conclusions of law,
an absurd result. See Barshop, 925 S.W.2d at 629.                 and recommendations as to damages and costs as the court
                                                                  determines advisable” and “take into account any findings ...
Helena urges that our adopting a nonjurisdictional                with respect to the failure of any party to cooperate in the
interpretation allows purchasers to bypass the Act and            arbitration proceedings, including any finding as to the effect
thwart its underlying purpose of providing for an unbiased,       of delay in filing the arbitration claim.” TEX. AGRIC. CODE
independent Board investigation. See HOUSE COMM.                  § 64.004. We conclude that these consequences—not the
ON AGRICULTURE *496 AND LIVESTOCK, BILL                           complete deprival of any right to have the claims heard in any
ANALYSIS, Tex. S.B. 64, 71st Leg., R.S. (1989). We                forum—are the consequences the Legislature contemplated
disagree.                                                         under the Act.

The Act permits the Board to independently investigate            The dissent disagrees with this conclusion, asserting that the
and assess the purchaser's claims. TEX. AGRIC. CODE               Act absolutely forecloses a purchaser's action if the purchaser
§ 64.006(d). But, while the Act requires the Board to             does not comply with section 64.006(a)'s timing requirement.
consider any field inspection or other data either party          47 S.W.3d at 507. The dissent notes section 64.006's language
submits, nowhere does it require the Board itself to conduct      that the complaint “must” be filed within the time necessary
a field inspection; nor does it expressly mention the Board       to permit effective crop inspection. 47 S.W.3d at 507. It then
conducting such an inspection. See TEX. AGRIC. CODE               reconciles this language with section 64.004 by interpreting
§ 64.006(f)-(h). Instead, by the Act's express terms, the         section 64.004 to permit Board findings about a purchaser's
Board can carry out its investigation in a number of ways         delay only while the crops are still in the ground. 47 S.W.3d
that do not necessarily require it to conduct its own field       at 507. It explains that “[a] purchaser could certainly delay
inspection. For example, the Act authorizes the Board to          filing an arbitration complaint for many months yet still file
delegate all or any part of its investigation to its members.     while the seeds are under field conditions.” 47 S.W.3d at 508.
TEX. AGRIC. CODE § 64.006(g). And the Board may grow              Thus, it reasons, submitting a claim while the seeds are in
representative samples, conduct hearings, and examine the         the ground, but after a hot summer season, could “affect the
parties. TEX. AGRIC. CODE § 64.006(f). In fact, here both         Board's investigation.” 47 S.W.3d at 511.
parties' experts conducted field inspections that they could
have submitted to the Board to aid it in fulfilling its duties.   However, while purporting to apply a plain-language analysis
See TEX. AGRIC. CODE § 64.006(h) (“The arbitration board          to *497 section 64.006(a), the dissent glosses over the
shall consider any field inspection or other data submitted       section's actual language and ignores the maxim that we must
by either party.”) (emphasis added). Thus, because the Board      presume that every word in a statute is included purposefully.
can conduct an investigation despite a delay in submission        See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535,
to arbitration, concluding that section 64.006(a)'s timing        540 (Tex.1981). First, the dissent's interpretation assumes
requirement is nonjurisdictional does not thwart the Act's        the Board itself must conduct the field inspection referenced
purpose of providing for a Board investigation. See Hines,        in section 64.006(a). The Act's text does not support this
843 S.W.2d at 469 (holding statute's purpose could be             assumption. Instead, the Act provides that a complaint must
furthered without jurisdictional interpretation of mandatory      be filed in time to “permit effective inspection of the plants
timing requirement).                                              under field conditions,” TEX. AGRIC. CODE § 64.006(a),
                                                                  thus permitting the parties to inspect under field conditions
                                                                  and provide their reports to the Board. TEX. AGRIC. CODE



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

§ 64.006(h). Second, the dissent's interpretation presumes          the case upon which the dissent relies, the Florida Supreme
that any claim submitted while crops are still in the ground        Court interpreted a prior version's timing requirement to be
will satisfy section 64.006(a)'s language. 47 S.W.3d at 511.        jurisdictional. 426 So.2d at 961. This prior version required
However, section 64.006 does not only require that a claim be       a claim be filed “within ten days after the defect or violation
submitted while the crops are available for inspection “under       becomes apparent.” See Ferry–Morse Seed Co., 426 So.2d
field conditions.” Rather, it states a claim must be filed in       at 960. There are two important differences between the
time to permit an “effective inspection of the plants under field   Texas *498 and Florida Acts. First, the Florida Act's current
conditions.” TEX. AGRIC. CODE § 64.006(a) (emphasis                 version specifies that the Board and the seed seller must both
added). We must presume the word “effective” has meaning.           be able to conduct an independent field inspection. The Texas
See Cameron, 618 S.W.2d at 540. Thus, under the dissent's           Act has no such language. Second, and more significant,
interpretation of 64.006(a), any claim brought while the crops      neither version of Florida's Act provides for the Board to
are in the ground but after an effective inspection could be        make findings about the effect of the purchaser's delay in
accomplished would already be barred under 64.006(a)—               submitting a claim to arbitration as section 64.004 of the
rendering section 64.004's provision for the Board to make          Texas Act does. Thus, while we might be inclined to adopt
findings about delay in submitting the claim meaningless.           Florida's interpretation that timely submitting to arbitration is
                                                                    jurisdictional if its statute were identical to ours, we are not
The dissent also urges us to adopt the Florida Supreme Court's      bound to interpret one similar provision of our Act in a way
interpretation of a prior version of its Seed Act because           that conflicts with other provisions that differ from Florida's
our statute's legislative history indicates that our statute        statute.
was modeled in part after Florida's. See Ferry–Morse Seed
Co. v. Hitchcock, 426 So.2d 958, 961 (Fla.1983) (holding            Finally, while we base our interpretation on the Act's
Florida Seed Act's arbitration submission timing requirement        language and the Legislature's intent, we note that one other
jurisdictional). There is only one reference to Florida in          court has had occasion to interpret its Seed Act's similar
our Act's bill analysis. The background section notes that          arbitration provisions. Illinois' Seed Act provides:
“[f]or many years the state of Florida has used a method
of arbitration with an unbiased third party investigation and         A purchaser of seed cannot maintain a civil action against
opinion” and that “[t]he American Seed Trade Association              the seller for failure of the seed to produce or perform (i)
has recommended to each of its member states that they work           as represented by a label attached to the seed or furnished
to pass measures similar to Florida's.” HOUSE COMM. ON                under the Illinois Seed Law, (ii) as represented by warranty,
AGRICULTURE AND LIVESTOCK, BILL ANALYSIS,                             or (iii) because of negligence, unless the buyer has first
Tex. S.B. 64, 71st Leg., R.S. (1989).                                 submitted the claim to arbitration.

                                                                     ....
 [12]     [13] We recognize that when a Texas statute
is modeled after another jurisdiction's, that jurisdiction's         Except in case of seed that has not been planted, the
interpretation before the Legislature enacts our statute may be      claim shall be filed within a time that will permit effective
given weight. City of Garland v. Dallas Morning News, 22             inspection of the plants under field conditions and in no
S.W.3d 351, 360 (Tex.2000). However, when the Legislature            case later than 90 days after completion of harvest.
looks to another jurisdiction's statute, but modifies rather than
adopts some of its provisions, it does so purposefully. See       701 ILL. COMP. STAT.. 25/10, 25/20 (emphasis added). In
Sharifi v. Young Bros., Inc., 835 S.W.2d 221, 223 (Tex.App.       Presley v. P & S Grain Co., the Illinois court of appeals
—Waco 1992, writ denied).                                         held this timing requirement to be directory rather than
                                                                  mandatory. 289 Ill.App.3d 453, 225 Ill.Dec. 398, 683 N.E.2d
When the Legislature enacted the Texas Act, the Florida           901, 910 (1997). It reasoned, as we have here, that the
Seed Act provided that a purchaser must submit its claim          statute's failure to provide for dismissal as a consequence
to arbitration “within such time as to permit inspection of       for noncompliance with its arbitration provisions weighs in
the crops, plants, or trees by the seed investigation and         favor of a directory interpretation. Presley, 225 Ill.Dec. 398,
conciliation council or its representatives and by the dealer     683 N.E.2d at 909. Likewise, it concluded that interpreting
from whom the deed was purchased.” FLA. STAT. ANN.. §             the nonbinding arbitration procedures as jurisdictional would
578.026(1)(a) (emphasis added). In Ferry–Morse Seed Co.,



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

lead to an absurd result. Presley, 225 Ill.Dec. 398, 683 N.E.2dtestimony meet these requirements. Robinson, 923 S.W.2d
at 909.                                                        at 556. The trial court has broad discretion to determine
                                                               admissibility, and we will reverse only if there is an abuse of
 [14]     [15] We agree with the Florida Supreme Court's that discretion. Robinson, 923 S.W.2d at 558.
observation that seed arbitration laws are “established to
protect the farmer.” Ferry–Morse Seed Co., 426 So.2d at         [19] [20] [21] In deciding if an expert is qualified, trial
961. Thus, when, as here, we are faced with two competing      courts “must ensure that those who purport to be experts
interpretations, we must choose the one most harmonious        truly have expertise concerning the actual subject about which
with the Act's objectives and other provisions. Accordingly,   they are offering an opinion.” Gammill v. Jack Williams
we conclude that while submission to arbitration under the     Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (quoting
Act is mandatory if not waived by the seller, the Act's timing Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996)). To gauge
requirement is not. See Hines, 843 S.W.2d at 469; $435,000,    reliability, we have explained:
842 S.W.2d at 644. Because the Wilkinses submitted their
claims to arbitration and thus complied with the Act's            Daubert and Rule 702 demand that the district court
mandatory requirements, the trial court correctly concluded       evaluate the methods, analysis, and principles relied upon
that it had jurisdiction over their claims.                       in reaching the opinion. The court should ensure that the
                                                                  opinion comports with applicable professional standards
                                                                  outside the courtroom and that it will have a reliable basis
                                                                  in the knowledge and experience of the discipline.
                 III. EXPERT TESTIMONY
                                                               Gammill, 972 S.W.2d at 725–26 (quotations omitted). In
Helena argues that the trial court abused its discretion by    Robinson, we identified six nonexclusive factors to determine
admitting the Wilkinses' expert's testimony. The expert, Dr.   whether an expert's testimony is reliable and thus admissible.
Pleunneke, testified that in his opinion, Cherokee seed is not Robinson, 923 S.W.2d at 557. But in Gammill we recognized
appropriate for dryland farming and thus did not perform       that the Robinson factors may not apply to certain testimony.
as represented. Helena contends that Pleunneke lacked the      Gammill, 972 S.W.2d at 726. In those instances, there still
required qualifications and that his testimony lacked the      must be some basis for the opinion offered to show its
“indicia of reliability” required for admission. The court of  reliability, and, ultimately, the trial court must determine how
appeals held the trial court did not abuse its discretion by   to assess reliability. Gammill, 972 S.W.2d at 726. If an expert
admitting Pleunneke's testimony. 18 S.W.3d at 754. We agree    relies upon unreliable foundational data, any opinion drawn
with the court of appeals.                                     from that data is likewise unreliable. Merrell Dow Pharms.,
                                                               Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997). Further, an
                                                               expert's testimony is unreliable even when the underlying data
                 *499 A. APPLICABLE LAW                        is sound if the expert's methodology is flawed. Havner, 953
                                                               S.W.2d at 714.
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
                                                                                        B. ANALYSIS
by knowledge, skill, experience, training, or education may
testify thereto in the form of opinion or otherwise. TEX.R.
EVID. 702. Otherwise admissible opinion testimony is not                               1. Qualifications
objectionable because it embraces an ultimate issue of fact.
TEX.R. EVID. 704.                                               [22] Pleunneke testified that he grew up on a ranch. He
                                                               earned a bachelor's degree in wildlife management from
 [16] [17] [18] A two-part test governs whether expert Texas A & M University. He then worked in a bank's trust
testimony is admissible: (1) the expert must be qualified; and department managing farm and ranch lands in Texas and
(2) the testimony must be relevant and be based on a reliable  Louisiana. During this time he worked with many different
foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923     types of crops, including grain sorghum. He then returned
S.W.2d 549, 556 (Tex.1995). The trial court makes the initial  to school and finished a doctorate in plant physiology.
determination about whether the expert and the proffered       Afterwards, he worked with crops for Mississippi State



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

University's Agronomy and Biochemistry Department. At                affecting crops could have been helpful to the jury.
this job, he conducted crop-variety testing, predominantly on        Accordingly, we conclude that the court of appeals correctly
soybean crops, and he was “quite familiar with setting up tests      held that the trial court's finding Pleunneke qualified was not
and so forth and see[ing] which varieties are best.” For the         an abuse of discretion.
past twenty years he has worked in Texas as a plant scientist
and consultant. He characterized some of his functions *500
as “work[ing] on different problems related to plant science,
                                                                                             2. Reliability
science pertaining to the physiology of plants, malnutrition,
the way the environment affects them and so forth.” In fact,          [23] Helena also contends that Pleunneke's testimony
the Wilkinses initially hired him, not as a litigation expert, but   is unreliable because he is not qualified to testify about
as a consultant to help them identify the source of their crop       charcoal rot and because he does not state the basis and
problems.                                                            the methodology behind his opinion. Again, Helena fails to
                                                                     recognize that the issue here is whether Cherokee seed is
Helena notes that Pleunneke is not a plant pathologist               suitable for dryland farming as Helena represented. And it
and argues that his testimony does not establish he is an            ignores the numerous bases underlying Pleunneke's opinion
expert about charcoal rot. However, this argument incorrectly        and his qualifications.
frames the issue. The Wilkinses allege Helena misrepresented
Cherokee seed's fitness for use in a nonirrigated environment.       Pleunneke testified that, in forming his opinions, he relied on
Accordingly, the factual issue is not solely whether Cherokee        a number of things: a physical inspection of the Wilkinses'
is susceptible to charcoal rot. Also at issue is whether             Cherokee crop; photographs and videotape of the Wilkinses'
Cherokee is particularly suited for dryland farming as Helena        field; samples of the Wilkinses' soil and plants; samples of
represented.                                                         the Wilkinses' neighbors' soil and plants; lab analysis results
                                                                     from his field samples; South Texas rainfall statistics during
The causation evidence in this case included: seed                   the relevant period; Texas A & M grain-sorghum trials;
performance trial results, the Wilkinses' farm's current             Texas A & M grain-sorghum literature; publications by Dr.
and past performance, the current and past performance               Fredrickson, a Texas A & M plant pathologist who is a grain-
of the Wilkinses' neighbor's farm, and weather and soil              sorghum expert; Helena's soil and plant samples and analyses;
statistics. In response to this evidence, Helena contended           and Helena's marketing literature. Helena does not argue
that environmental factors, not Cherokee seed's drought              that this foundational data underlying Pleunneke's opinion
intolerance, led to the Wilkinses' poor crop. Thus, to               testimony is unreliable.
determine whether Pleunneke is a qualified expert, the
question is whether Pleunneke has scientific, technical, or           *501 Moreover, Pleunneke has twenty years experience
other specialized knowledge that would assist the jury to            as a plant scientist and conducting and interpreting crop
understand this evidence and determine if Cherokee seed              trials. While testifying, Pleunneke explained the results of
is suitable for dryland farming as represented. See TEX.R.           several grain trials, why he found those to be significant,
EVID. 702.                                                           and how they supported his opinions. He also explained
                                                                     the other factors that contributed to his opinion, and
We conclude that Pleunneke's knowledge would aid                     why they were significant to his conclusions. These other
the jury in understanding the evidence. Several grain                factors included weather and weed-control reports, disease
performance trial results were entered into evidence.                publications, testing, and comparison with crops adjacent to
Pleunneke has experience conducting crop trials, and,                the Wilkinses' farm. Thus, Pleunneke's experience, coupled
presumably, experience interpreting and comparing those              with his thorough testimony about the methodology he
results. Also, as a plant-science consultant, he works               employed, demonstrate that the opinions he drew from the
on “different problems related to plant science, science             underlying data are reliable. See Gammill, 972 S.W.2d at 726.
pertaining to the physiology of plants, malnutrition, the            Thus, we conclude that the court of appeals correctly held
way the environment affects them and so forth.” Because              that the trial court did not abuse its discretion by admitting
Helena contends environmental factors caused the Wilkinses'          Pleunneke's testimony.
crop failure rather than Cherokee seed's drought intolerance,
Pleunneke's experience identifying environmental factors



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

                                                                     questions. 18 S.W.3d at 755–57. We agree with the court of
                                                                     appeals.
                     IV. DTPA CLAIMS

Helena argues that the Wilkinses' failure to timely submit
their claims to arbitration under the Act also precludes the trial                        1. Applicable Law
court from considering their DTPA claims. In the alternative,
it argues that there is no evidence to support the jury's DTPA        [24]    [25] The DTPA prohibits “[f]alse, misleading, or
liability and causation findings. Specifically, Helena argues        deceptive acts or practices in the conduct of any trade
that any representations it made amounted to nonactionable           or commerce.” TEX. BUS. & COM.CODE § 17.46(a).
puffing.                                                             Section 17.46(b) is a laundry list of specifically prohibited
                                                                     acts. Sections 17.46(b)(5) and 17.46(b)(7) prohibit “false,
                                                                     misleading, or deceptive acts or practices includ[ing] ...
                                                                     representing that goods and services have              *502 ...
     A. RELATIONSHIP BETWEEN THE DTPA
                                                                     characteristics, ingredients, uses, [or] benefits ... which they
    AND THE TEXAS SEED ARBITRATION ACT
                                                                     do not have” and “representing that goods or services are
Helena argues that if the Act governs any part of a suit, then       of a particular standard, quality, or grade ... if they are
all the purchaser's claims must be arbitrated, regardless of the     of another.” Section 17.46(b)(23) prohibits “the failure to
theory of recovery. The dissent agrees, concluding that all          disclose information concerning goods or services which was
the Wilkinses' theories are “factually intertwined,” and thus        known at the time of the transaction if such failure to disclose
that their DTPA claims cannot provide an alternative basis           such information was intended to induce the consumer into a
for the trial court's judgment. Because we conclude that the         transaction into which the consumer would not have entered
Wilkinses complied with the Act and hold that their delay in         had the information been disclosed.” Section 17.50 provides
submitting their claims to arbitration did not bar their suit,       the remedy for violations of the laundry-list provisions of
determining whether the DTPA claims are within the Act's             17.46(b) and for “any unconscionable action or course of
purview is not necessary here.                                       action by any person.” Actionable representations may be
                                                                     oral or written. Hedley Feedlot, Inc. v. Weatherly Trust, 855
                                                                     S.W.2d 826, 838 (Tex.App.—Amarillo 1993, writ denied).
                                                                     A party need not prove intent to make a misrepresentation
               B. EVIDENCE TO SUPPORT                                under sections 17.46(b)(5) or 17.46(b)(7)—making the false
                DTPA JURY QUESTIONS                                  representation is itself actionable. Smith v. Baldwin, 611
                                                                     S.W.2d 611, 616–17 (Tex.1980).
The trial court submitted two DTPA questions to the
jury. The first question asked, in the disjunctive, whether
                                                                      [26] [27] To recover under the DTPA, the plaintiff must
Helena had violated three DTPA laundry-list provisions:
                                                                     also show that the defendant's actions were the “producing
sections 17.46(b)(5) (misrepresentations about a product's
                                                                     cause” of actual damages. See TEX. BUS. & COM.CODE
characteristics), 17.46(b)(7) (misrepresentations about a
                                                                     § 17.50(a). This showing requires some evidence that the
product's standard, quality, or grade), or 17.46(b)(23) (failure
                                                                     defendant's act or omission was a cause in fact of the plaintiff's
to disclose information with intent to induce another to enter
                                                                     injury. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d
transaction). See TEX. BUS. & COM.CODE § 17.46. The
                                                                     472, 481 (Tex.1995). Under this standard, it is not necessary
second question asked only whether Helena violated section
                                                                     to show that the harm was foreseeable. Boys Clubs of Greater
17.50(a)(3) (unconscionable action or course of action). See
                                                                     Dallas, Inc., 907 S.W.2d at 481.
TEX. BUS. & COM.CODE § 17.50. The jury answered both
questions “yes.”
                                                                     The DTPA does not mention “puffing” as a defense.
                                                                     However, this Court has recognized that “mere puffing”
Helena argues that there is no evidence to support the jury's
                                                                     statements are not actionable under sections 17.46(b)(5)
answers. Specifically, it argues that any representations made
                                                                     or 17.46(b)(7). Pennington v. Singleton, 606 S.W.2d 682,
to the Wilkinses amounted to nonactionable puffing and that
                                                                     687 (Tex.1980). Neither this Court nor any court of
there is no causation evidence. The court of appeals held
                                                                     appeals has extended the puffing defense to violations of
there was some evidence to support the jury's answers to both




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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

sections 17.46(b)(23) (failure to disclose) or 17.50(a)(3)             condition, performing and producing in spite of the
(unconscionable conduct).                                              disorder.”

 [28] [29] In conducting a no-evidence review, we must              (7) A Helena agent's testimony that “tolerance to charcoal
view the evidence in a light that tends to support the                 rot is known to occur in grain sorghum. In this case
finding of the disputed fact and disregard all evidence and            the plant may develop a disease but may escape the full
inferences to the contrary. Weirich v. Weirich, 833 S.W.2d             development of symptoms and produce some level of
942, 945 (Tex.1992). If more than a scintilla of evidence              harvestable yield which it could not otherwise do in the
exists, the evidence is legally sufficient to support the              absence of the tolerance phenomenon.”
finding. Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925,
                                                                    (8) The Wilkinses' testimony that they relied upon the
928 (Tex.1993).
                                                                       Helena agent's oral representations.

                                                                    (9) Testimony indicating that it is reasonable and
                          2. Analysis                                  customary for farmers to rely on oral representations and
                                                                       advice from seed companies' representatives and that, in
The Wilkinses offered the following evidence to support their          fact, the neighboring farm's owner also relies on advice
DTPA claims:                                                           from his seed company representative.

  (1) Kenny Wilkins' testimony that he read Helena's seed           (10) Another Helena agent's representations that Cherokee
     brochure (PX–25) before purchasing Cherokee seed and             seed was a “good dry land variety and that it would
     that he would not have planted Cherokee in 1993 and              hold up well under the dry land conditions,” and his
     1994 had the brochure not represented Cherokee was a             recommendation that the Wilkinses plant Cherokee
     good dryland variety.                                            seed.

  (2) The PX–25 brochure's description of Cherokee seed as          (11) A Helena representative's statement that the Wilkinses
     “one of the most durable, top yielding hybrids” with an          had planted “too thick” and that if they would plant
     “outstanding disease tolerance package.”                         Cherokee on the whole lot, but with greater spacing, “the
                                                                      plant[s] will go ahead and perform.”
  (3) The PX–25 brochure's “grain sorghum lineup” chart
     stating that Cherokee seed has “good” head exertion,         Helena argues that its “alleged misleading statements are not
     “very good” standability, “excellent” yield potential in     statements of ‘fact,’ but constitute, if anything, nonactionable
     drylands, and that it is “FD [field] tolerant” to charcoal   opinion or puffing.” It relies extensively on Autohaus, Inc. v.
     rot.                                                         Aguilar, where the court of appeals held that an automobile
                                                                  salesman's stating that Mercedes is the best-engineered
  (4) Helena's written representation that its sorghum hybrids
                                                                  automobile in the world and “jok[ing]” that the car would
     “constitute our best research and development efforts,”
                                                                  “probably” only need to be brought in for oil changes every
     that Cherokee seed has “excellent weatherability,” that
                                                                  7,500 miles was nonactionable puffing. 794 S.W.2d 459,
     Cherokee seed is “the tough performer,” and that it has
                                                                  464 (Tex.App.—Dallas 1990), writ denied per curiam, 800
     “the stamina and *503 hardiness to withstand the harsh
                                                                  S.W.2d 853 (Tex.1991). The court noted that these two
     conditions from the Texas coastal bend across the lower
                                                                  sentences were “the extent of the evidence presented to show
     south to the Carolinas.”
                                                                  the misrepresentation by the salesman.” Aguilar, 794 S.W.2d
  (5) Testimony that the Wilkinses did not expect a “FD           at 464. It also noted that the terms “probably” and “joked”
     tolerant” plant would be affected by charcoal rot and that   demonstrated the generality of the statements. Aguilar, 794
     they understood “tolerant” to mean that “if there was an     S.W.2d at 464.
     acceptable level of something out in the field it would
     be tolerant to it.”                                           [30]    Here, the Wilkinses' evidence reflects specific
                                                                  representations about Cherokee seed's characteristics and
  (6) The American Seed Association's (of which Helena is a       specific representations about how the Wilkinses' crop
     member) definition of “tolerant” as “the ability of plants   in particular would perform. We conclude some of the
     to endure a specified pest or an adverse environmental       representations in this case are much more specific than


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

those in Aguilar and are more analogous to representations         finding is sufficient to support the jury's verdict. Thus, the
held actionable in other cases. See, e.g., Pennington, 606         court of appeals correctly held that there is some evidence of
S.W.2d at 687 (holding representations that used boat and          DTPA violations and that Helena's puffing defense did not
motor were in “excellent condition,” “perfect condition,”          defeat liability under the DTPA.
and “just like new” were actionable misrepresentations
about characteristics and benefits); Hedley Feedlot, Inc., 855
S.W.2d at 831, 838–39 (holding cattle seller's representations
                                                                                         V. DAMAGES
to a buyer about “the type of cattle, weight, projected cost of
feeding, the length of *504 time on feed, and the projected        Finally, Helena argues that there is no evidence to support
gain of the cattle” were actionable under the DTPA); Gold          the jury's $360,000 damages award. The court of appeals held
Kist, Inc. v. Massey, 609 S.W.2d 645, 646–47 (Tex.App.             there was evidence to support this amount. 18 S.W.3d at 759.
—Fort Worth 1980, no writ) (holding representations about          We agree with the court of appeals.
seed-germination rate were actionable under the DTPA).
Thus, viewing the evidence in a light most favorable to the
jury's findings, we conclude that there is some evidence
of misrepresentations about Cherokee seed's characteristics,                        A. APPLICABLE LAW
quality, and grade amounting to more than mere puffing.             [32] [33] [34] [35] Recovery for lost profits does not
                                                                   require that the loss be susceptible to exact calculation. Texas
 [31] Helena also argues that there is no evidence that its        Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d
actions were the producing cause of the Wilkinses' injuries        276, 279 (Tex.1994). However, the injured party must do
because the Wilkinses did not exclude other possible causes        more than show that it suffered some lost profits. Teletron
for the crop failure. Specifically, Helena contends that the       Energy Mgmt., Inc., 877 S.W.2d at 279. The loss amount must
Wilkinses depleted their soil by planting cotton the prior year.   be shown by competent evidence with reasonable certainty.
                                                                   Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649
The Wilkinses presented evidence about Cherokee's                  (Tex.1994); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d
unsuitability for dryland farming. This evidence included          80, 84 (Tex.1992). This is a fact-intensive determination.
their crop's performance, their neighbor's crop performance,       Heine, 835 S.W.2d at 84. At a minimum, opinions or lost-
several seed performance trial results, and South Texas            profit estimates must be based on objective facts, figures, or
rainfall statistics. The Wilkinses' expert, Dr. Pleunneke,         data from which the lost-profits amount may be ascertained.
testified that Cherokee seed does not produce a good yield in      Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at 84.
a nonirrigated environment.
                                                                    [36] [37] Texas' general rule for assessing damages for
The Wilkinses also presented evidence excluding other              crop loss is the market value of the lost part of the crop,
causes. The court of appeals summarized this evidence:             as measured at maturity, less the cost of harvesting and
                                                                   marketing the lost part. International Harvester Co. v. Kesey,
            Wilkins explained that the cotton-
                                                                   507 S.W.2d 195, 197 (Tex.1974). The law does not demand
            grain rotation is required by the local
                                                                   perfect proof of damages for crop *505 loss but liberally
            crop-management office; his neighbor
                                                                   permits estimates of crop value and probable yield, as well as
            rotated cotton and grain on certain
                                                                   cultivating and marketing expenses. International Harvester
            portions of his acreage without adverse
                                                                   Co., 507 S.W.2d at 197.
            effects; and the alleged “over planting”
            occurred because the Wilkins[es]
            followed the recommendations of
            Helena in planting their 1993 crop.                                           B. ANALYSIS

18 S.W.3d at 756. Thus, we conclude the Wilkinses presented         [38] Helena argues that the Wilkinses' damages should have
some evidence of producing cause.                                  been limited to the Cherokee seed's purchase price. Helena
                                                                   relies upon the “limitation of liability and remedies” clause
In sum, there is some evidence to support a finding that           printed on its invoices, delivery tickets, and seed label. The
Helena violated sections 17.46(b)(5) and 17.46(b)(7). This         DTPA provides that “[a]ny waiver by a consumer of the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           16
Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

provisions of this subchapter is contrary to public policy         the average sorghum yield per acre and subtracted their actual
and is unenforceable and void.” TEX. BUS. & COM.CODE               per acre yield, as evidenced by sales receipts. Then they
§ 17.42(a). We have held that a clause limiting recovery           multiplied this resulting deficit by the number of acres planted
for breach of warranty is effective, even when brought             and multiplied this figure by the market price. The result
under the DTPA, because the DTPA did not create warranty           was $129,170.95 for 1993 and $361,684.63 for 1994. They
claims. Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d        submitted the $490,855.58 total to the jury as their estimated
572, 576–77 (Tex.1991). However, the same does not hold            damages.
true for other DTPA claims. FDP Corp., 811 S.W.2d at
576–77. Thus, Helena's liability-limitation clauses cannot          *506 To reach an estimated lost-profits figure, the cost of
preclude the Wilkinses' lost-profit recovery for nonwarranty       harvesting and marketing the lost crop must be deducted
representations or unconscionability.                              from the $490,855.58 value of the lost crop. These costs
                                                                   include additional lease payments, grain-elevator costs, and
 [39] Alternatively, Helena argues that there is no evidence to    transportation charges. See International Harvester Co., 507
support the jury's damage award because prior losses cannot        S.W.2d at 197. Harvesting and marketing expenses can be
establish lost profits and because the Wilkinses did not prove     liberally estimated. International Harvester Co., 507 S.W.2d
their damages with reasonable certainty. Specifically, Helena      at 197.
argues that deducting government subsides and disaster relief
from the Wilkinses' income results in a history of losses ratherHere, the Wilkinses' neighbor testified about average
than profits.                                                   transportation costs to move grain between his farm and the
                                                                grain elevator in McCook, Texas, where both the neighbor
The Wilkinses first planted grain in 1992 and brought this      and the Wilkinses sent their crops. Kenneth Wilkins testified
suit to recover for crop damages sustained in 1993 and 1994.    about how the grain-elevator company calculates drying
Thus, they only had one year to establish a profit history.     charges and provided the jury with the Wilkinses' 1993
                                                                and 1994 grain-elevator receipts. The Wilkinses' leases
 [40] [41] We have held that past profits, coupled with other containing the percentage of profits that the Wilkinses' were
facts and circumstances, may establish a lost-profits amount    required to pay their landlord were entered into evidence.
with reasonable certainty. See Teletron Energy Mgmt., Inc.,     Finally, there was some evidence presented to the jury about
877 S.W.2d at 279. However, lack of a profit history does       the seed's actual price and some evidence that Helena may
not, by itself, preclude a new business from recovering lost    have “written off” a part of the price. With this evidence, the
future profits. See, e.g., Orchid Software, Inc. v. Prentice–   jury assessed the Wilkinses' net lost profits at $360,000. We
Hall, Inc., 804 S.W.2d 208, 211 (Tex.App.—Austin 1991,          agree with the court of appeals that the jury's damages award
writ denied). Rather, our focus is on whether damages can       was within the range of evidence the Wilkinses presented
be shown with reasonable certainty. E.g., Szczepanik, 883       and that this award is supported with evidence establishing
S.W.2d at 649. This can be accomplished with a profit history   damages with reasonable certainty. 18 S.W.3d at 759. Thus,
or some other objective data, such as future contracts, from    we hold that there is some evidence to support the jury's
which lost profits can be calculated with reasonable certainty. damage award.
See, e.g., Szczepanik, 883 S.W.2d at 649; Allied Bank W. Loop
v. C.B.D. & Assocs., Inc., 728 S.W.2d 49, 54–55 (Tex.App.
—Houston [1st Dist.] 1987, writ ref'd n.r.e).
                                                                                    VI. CONCLUSION

To establish their lost profits with reasonable certainty, the     We conclude that the Wilkinses' delay in submitting their
Wilkinses had to show: (1) the lost crop's market value,           claims to arbitration did not jurisdictionally bar their suit. We
and (2) the harvesting and marketing expenses they would           also conclude that the trial court did not abuse its discretion
have incurred on that lost part. International Harvester Co.,      in admitting the Wilkinses' expert's testimony. Finally, we
507 S.W.2d at 197. To calculate their lost crop's market           conclude that there is some evidence to support the jury's
value, the Wilkinses relied upon the United States Agriculture     liability, causation, and damages findings. Accordingly, we
Stabilization and Conservation Service's farm-yield data.          affirm the court of appeals' judgment.
Each year the USASC measurement service gathers crop
yield information from sorghum growers. The Wilkinses took



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

                                                                     the complaint does not qualify for arbitration because of the
Justice ABBOTT, joined by Justice HECHT and Justice                  delay, is the purchaser's legal action based on the seller's
OWEN, dissenting.                                                    alleged misrepresentations barred? Simple rules of statutory
Although he knew about both the alleged problem with                 construction require that this question be answered yes.
the seed and the Act's requirement that seed complaints
be submitted to arbitration, Wilkins delayed submitting his          First, the Act provides both that the seed purchaser “must
complaint to arbitration until years after he first discovered       submit the claim to arbitration as provided by [Chapter
the problem. Because of this delay, it was too late for the State    64]” and that “the complaint must be filed within the time
Seed and Plant Board to conduct a meaningful investigation,          necessary to permit effective inspection of the plants under
and the Board appropriately concluded that the complaint did         field conditions.” Id. §§ 64.002, 64.006(a) (emphasis added).
not qualify for arbitration. Despite the Act's plain requirement     According to the Code Construction Act, “must” creates or
that seed complaints be timely submitted to arbitration as a         recognizes a condition precedent. TEX. GOV'T CODE §
prerequisite to maintaining a legal action, the Court sidesteps      311.016(3). A condition precedent is “an event that must
this requirement and permits Wilkins to maintain his suit.           happen or be performed before a right can accrue to enforce
In doing so, the Court encourages all seed buyers who wish           an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956
to circumvent the Act's arbitration requirement to simply            (Tex.1992). Thus, before a seed purchaser may maintain his
delay submitting the complaint to arbitration until it is too        suit, he must submit his claim to arbitration and he must do so
late for the Board to investigate. Because the Court ignores         within the time necessary to permit effective inspection of the
the Act's plain language and undermines the Act's purpose            plants under field conditions—it is not enough to “submit”
by permitting seed purchasers to completely circumvent the           the claim when no inspection is possible. Because the Board
Act's arbitration requirement, I dissent.                            “shall conduct arbitration as provided by [Chapter 64],” id.
                                                                     § 64.005(b), if the seed purchaser fails to timely submit the
                                                                     claim as directed by Chapter 64, the Board cannot arbitrate
                                I                                    and the sole purpose of the Act is thwarted.

The Act's purpose is to “provide[ ] for an unbiased third            Second, the Legislature expressly indicated that the Act was
party investigation by the State Seed and Plant Board of the         based on a similar Florida statute. The bill analysis recognizes
Texas Department of Agriculture of complaints concerning             that “[f]or many years the state of Florida has used a method
seed performance.” HOUSE COMM. ON AGRIC. AND                         of arbitration with an unbiased third party investigation and
LIVESTOCK, BILL ANALYSIS, Tex. S.B. 64, 71st Leg.,                   opinion” and the “American Seed Trade Association has
R.S. (1989). To achieve this purpose, the Act requires that          recommended to each of its member states that they work
a seed purchaser who “claims to have been damaged by the             to pass measures similar to Florida's.” See HOUSE COMM.
failure of the *507 seed to produce or perform as represented        ON AGRIC. AND LIVESTOCK, BILL ANALYSIS, Tex.
by warranty or by the label required to be attached to the           S.B. 64, 71st Leg., R.S. (1989). At the time the Texas Seed
seed ... or as a result of negligence ... must submit the claim to   Arbitration Act was enacted, the Florida statute provided that:
arbitration” before the Board “as a prerequisite to the exercise
of the purchaser's right to maintain a legal action.” TEX.                        [w]hen any farmer is damaged by
AGRIC. CODE § 64.002 (emphasis added).                                            the failure of ... seed to produce or
                                                                                  perform as represented by the label ...,
In order for the Board to be able to conduct a meaningful                         as a prerequisite to his right to
investigation, the Act expressly provides that the arbitration                    maintain a legal action against the
complaint must be submitted “within the time necessary                            dealer from whom such seed was
to permit effective inspection of the plants under field                          purchased, such farmer shall make
conditions.” Id. § 64.006(a). The question the Court must                         a sworn complaint.... The complaint
answer today is: When the seed purchaser does not file the                        shall be filed with the department, and
arbitration complaint within the time necessary to permit                         a copy of the complaint shall be served
effective inspection of the plants under field conditions (even                   on the dealer by certified mail, within
though he is aware of the problem during that time and                            such time as to permit inspection of
conducts his own inspection), and the Board concludes that                        the crops, plants, or trees by the seed
                                                                                  investigation and conciliation council


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

             or its representatives and by the dealer                            proceedings, including any finding as
             from whom the seed was purchased.                                   to the effect of delay in filing the
                                                                                 arbitration claim or the arbitration
FLA. STAT. ANN.. § 578.26(1)(a) (1989) (emphasis added).                         board's ability to determine the facts of
                                                                                 the case.
The Florida and Texas statutes are substantially similar—both
provide that the *508 seed purchaser or farmer must file a          TEX. AGRIC. CODE § 64.004. Both the Court and Wilkins
complaint or submit the claim to arbitration “as a prerequisite     contend that Wilkins's delay in filing his arbitration complaint
to [the purchaser's] right to maintain a legal action” against      does not bar his suit because the statute specifically addresses
the dealer or labeler. Both statutes require the complaint to       this problem by allowing the trial court to take such delays
be filed in a timely manner so that it can be appropriately         into account. However, because that interpretation allows
investigated and the crops can be inspected.                        Wilkins to completely circumvent Chapter 64's arbitration
                                                                    requirement, it simply cannot be an accurate application of
“[I]t is a generally accepted rule of statutory construction that   section 64.004.
when the Legislature adopts a ‘foreign’ statute it also adopts
the construction of that statute by the foreign jurisdiction        To the contrary, section 64.004 deals with the situation
occurring prior to the Texas enactment.” State v. Moreno,           in which the complaint is filed within the time necessary
807 S.W.2d 327, 332 n. 5 (Tex.Crim.App.1991); see also              to permit effective inspection under field conditions, but
City of Garland v. Dallas Morning News, 22 S.W.3d 351,              the seed purchaser's delay in filing nevertheless affects the
360 (Tex.2000); Tex. Dep't of Pub. Safety v. Gilbreath,             investigation. A purchaser could certainly delay filing an
842 S.W.2d 408, 412 (Tex.App.—Austin 1992, no writ).                arbitration complaint for many months yet still file while
The Florida Supreme Court construed Florida's seed act in           the seeds are under field conditions. For example, if the
1983 in Ferry–Morse Seed Co. v. Hitchcock, 426 So.2d 958            problem became apparent early in the season but *509 the
(Fla.1983). 1 Just as in this case, the farmer in Hitchcock         farmer delayed submitting the claim to arbitration until after
waited over two years after discovering the problem to bring        the heat of the summer, the delay could affect the Board's
suit alleging breach of warranty and negligence, and made           investigation. Section 64.004 allows the trial court to consider
no attempt to comply with the statutory requirements. The           such a delay; it does not allow the court to completely ignore
Florida Supreme Court held that the farmer's claims were            the statute's timeliness requirements. Moreover, section
inextricably bound to the statute's labeling requirements, and      64.004, by its terms, applies only to a complaint “that has
that by failing to comply with the statutory requirements, the      been the subject of arbitration under [Chapter 64].” Because
farmer was barred from bringing suit for damages. Id. at 961.       Wilkins's complaint was not arbitrated—and could not have
                                                                    been under the terms of the statute—section 64.004 does not
The Texas Legislature enacted Chapter 64 in 1989, well after        apply.
the Florida Supreme Court issued its decision construing
Florida's seed act. Accordingly, we should presume that             Construed in this manner, section 64.004 is consistent with
the Legislature intended to adopt Florida's construction of         the Act's purpose and with the conclusion that a purchaser's
its statute, so long as the Florida and Texas statutes are          failure to file an arbitration complaint within the time
substantially similar and our statute does not reflect a contrary   necessary to permit inspection during field conditions is a bar
intent. See Sharifi v. Young Bros., 835 S.W.2d 221, 223             to suit. But the Court would rather rely on this one provision to
(Tex.App.—Waco 1992, writ denied). As noted, the acts are           gut the purpose of the Act. Rather than interpreting this single
substantially similar, and neither the Texas statute itself nor     sentence in a manner entirely inconsistent with the Act's
the available legislative history indicates a contrary intent.      purpose of allowing an independent third-party investigation,
                                                                    we should interpret it consistently with the Act as a whole.
The only notable difference between the Texas and Florida           See Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35
statutes is the provision in section 64.004 that:                   S.W.3d 591, 593 (Tex.2000) (stating that we do not construe
                                                                    statutory language in isolation but in the context of the entire
             [t]he court may ... take into account                  statutory scheme). And, when two constructions are possible,
             any findings of the board of arbitration               we should choose the one most consistent with the Act's
             with respect to the failure of any                     purpose over the construction completely at odds with it.
             party to cooperate in the arbitration


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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

The Court's construction of the Act renders meaningless             if the breach of warranty claim is barred by his failure to
section 64.006(a)'s requirement that the arbitration complaint      arbitrate, the Act does not bar his DTPA unconscionability
be submitted within the time necessary to permit effective          and misrepresentation claims because the statute requires
inspection of the plants under field conditions. Relying on         only claims based on the label, warranty, or negligence to be
the fact that the Act does not expressly state that the Board       submitted to arbitration, and his DTPA claims are not based
must conduct the field inspection, the Court reasons that           on the label, warranty, or negligence.
“the Act provides that a complaint must be filed in time
to ‘permit an effective inspection of the plants under field        If Wilkins is correct, plaintiffs could easily circumvent the
conditions,’ thus permitting the parties to inspect under field     Act simply by recharacterizing their claims as DTPA claims.
conditions and provide their reports to the Board.” 47 S.W.3d       This would render the Act wholly ineffective and would
at 507 (citations omitted). But this reasoning makes no sense.      undermine the legislative intent. Cf. Sorokolit v. Rhodes, 889
The timing requirement must have been intended to allow             S.W.2d 239, 242 (Tex.1994) (“Claims that a physician or
someone to conduct a field inspection. According to the             health care provider was negligent may not be recast as DTPA
Court, that someone is simply “the parties.” But surely the         actions to avoid the standards set forth in the Medical Liability
Act's timeliness requirement was not included to allow the          and Insurance Improvement Act.”). The Act's language is
farmer to conduct a field inspection, since the farmer has          broad—it applies whenever a seed purchaser claims to have
access to his fields and can conduct an inspection at any time.     been damaged “by the failure of the seed to produce or
Accordingly, the requirement must have been intended to             perform as represented by warranty or by the label required
permit the Board or the seed seller to conduct an inspection.       to be attached ... or as a result of negligence.” TEX. AGRIC.
Since the Act's purpose is to allow a third party investigation     CODE § 64.002(a). The Business and Commerce Code—the
and the Board employs its own field inspectors, the only            same code in which the DTPA is found—defines warranties
conclusion is that the Legislature intended to permit the Board     to include “[a]ny affirmation of fact or promise made by the
to conduct an inspection. But under the Court's interpretation,     seller to the buyer which relates to the goods and becomes part
there would be no problem even if no one conducted a field          of the basis of the bargain” and “[a]ny description of the goods
inspection and the farmer waited until well after the crops had     which is made part of the basis of the bargain.” TEX. BUS.
been harvested to file the arbitration complaint so that no field   & COM.CODE § 2.313(a)(1),(2). Wilkins's claims for DTPA
inspection could be performed. Or, the farmer could conduct         misrepresentation and unconscionability fall within the scope
a field inspection but then wait until after field conditions to    of this definition.
file the arbitration complaint so that the only field inspection
the Board could consider would be the farmer's.                     In the jury charge, the DTPA misrepresentation claim
                                                                    defined “false, misleading, or deceptive act or practice”
The Court's construction reads section 64.006(a)'s timeliness       as “representing that Cherokee seed had or would have
requirement right out of the Act. To be consistent with both        characteristics that it did not have” or “representing that
the Act's language and its purpose, I would hold that Wilkins's     Cherokee seed was of a particular quality if it was of another.”
failure to submit his claim to arbitration within the requisite     These representations fall within the definition of warranty,
time period bars him from maintaining a legal action against        and, although couched as a DTPA misrepresentation claim,
Helena.                                                             the underlying nature of the complaint is that the seeds did not
                                                                    produce or perform as represented. See Sorokolit, 889 S.W.2d
                                                                    at 242 (holding that the underlying nature of the claim, not
                                                                    its label, determines whether section 12.01(a) of the Medical
                               II
                                                                    Liability and Insurance Improvement Act prevents suit for
Wilkins argues that, regardless of whether the Act bars             violation of the DTPA). Wilkins's DTPA unconscionability
certain claims that *510 have not been arbitrated, the              claims are also predicated on Helena's representations
jury's verdict can be sustained on the basis of the DTPA            concerning the Cherokee seed. The evidence supporting
unconscionability and misrepresentation causes of action,           Wilkins's DTPA misrepresentation and unconscionability
which he contends are not subject to the Act's arbitration          claims is the same evidence supporting his breach of warranty
requirement. Wilkins obtained favorable jury findings on            claims. Because all of Wilkins's claims are so significantly
his claims for breach of warranty, DTPA unconscionability,          factually intertwined, they should be arbitrated together. Cf.
and DTPA oral misrepresentations. Wilkins argues that, even         Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 271 (Tex.1992)



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Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (2001)
44 Tex. Sup. Ct. J. 675

                                                                         that this requirement might arguably violate the Open Courts
(requiring arbitration of factually intertwined contract and
                                                                         provision as applied to cases in which the Act's complaint-
misrepresentation claims in contractual arbitration context).
                                                                         filing time period has expired before the seed purchaser has
Accordingly, Wilkins's DTPA claims are included within the
                                                                         a reasonable opportunity to discover the problem. But where,
Act's arbitration requirement.
                                                                         as here, the seed purchaser discovers the problem while
                                                                         the seeds are under field conditions (and conducts his own
                                                                         independent investigation of the crops in the field), is aware
                               III                                       of the arbitration requirement, and has ample opportunity to
                                                                         file his complaint in a timely manner but simply fails to do
Wilkins argued in the trial court that construing the Act to bar
                                                                         so, the Open Courts provision is satisfied.
his legal action would violate the Open Courts provision of
the Texas Constitution. See TEX. CONST. art. I, § 13. We
                                                                         *****
should, if possible, interpret statutes in a manner that avoids
constitutional infirmities. Owens Corning v. Carter, 997
                                                                         Wilkins knew of the potential problem with the Cherokee
S.W.2d 560, 577 (Tex.1999). *511 The Attorney General
                                                                         seed within plenty of time to file a complaint with the
has concluded, and I agree, that Chapter 64's arbitration
                                                                         Board during the requisite time period. Although he allowed
requirements do not on their face violate the Open Courts
                                                                         some experts to investigate his crops under field conditions,
provision of the Texas Constitution. Op. Tex. Att'y Gen.
                                                                         he failed to file a complaint with the Board to allow
No. DM–3 (1991). As noted in that decision, Chapter 64
                                                                         the neutral third-party investigation required by the Act.
does not purport to abolish the right of seed performance
                                                                         Because Wilkins failed to submit his complaint within the
disputants to obtain redress in court. Id. The arbitration is non-
                                                                         requisite time period, the Board properly concluded that the
binding, and seed purchasers are free to pursue their claims in
                                                                         complaint did not qualify for arbitration under the Act's
court after the arbitration. Moreover, Chapter 64's arbitration
                                                                         plain language. And because arbitration is a prerequisite to
requirements are certainly not unreasonable or arbitrary when
                                                                         Wilkins's right to maintain a legal action for his claims that
balanced against the purpose and basis of the statute. Id.; see
                                                                         he has been damaged by the failure of the seed to produce
Carter, 997 S.W.2d at 573; Sax v. Votteler, 648 S.W.2d 661,
                                                                         or perform as represented, Wilkins's claims are barred. The
666 (Tex.1983).
                                                                         Court nevertheless decides that they are not. Because that
                                                                         decision contradicts the Act's plain language and undermines
The Attorney General did caution, however, that the Act
                                                                         its purpose, I dissent.
could raise Open Courts questions as applied to some cases.
Op. Tex. Att'y Gen. No. DM–3 (1991). In particular, the
Attorney General pointed out that the Open Courts provision              Parallel Citations
could limit the application of section 64.006(a)'s requirement
that the arbitration complaint be filed in time to permit                44 Tex. Sup. Ct. J. 675
inspection of the plants under field conditions. Id. I agree


Footnotes
1       Unless otherwise indicated, all references to “the Act” are to the Texas Seed Arbitration Act. See TEX. AGRIC. CODE § 64.001–.007.
1       Florida's 1977 Act, which was at issue in Ferry–Morse, was similar to its 1989 version except that it required the farmer to file
        a sworn complaint with the department of agriculture within 10 days after the problem became apparent. FLA. STAT. ANN.. §
        578.26(1) (1977).


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  21
Hinds v. Slagel, Not Reported in F.Supp.2d (2001)




                                                                   In their amended motion, defendants contend that Hinds'
                  2001 WL 548906
                                                                   official capacity claims are redundant because he has also
    Only the Westlaw citation is currently available.
                                                                   sued the City. They also assert that the individual defendants
             United States District Court,
             N.D. Texas, Dallas Division.                          are entitled to official immunity 3 and qualified immunity,
                                                                   that Judge Noah is entitled to absolute judicial immunity, and
                Kevin HINDS, Plaintiff,                            that the City is entitled to sovereign immunity.
                          v.
            Gary SLAGEL, et al., Defendants.
                                                                                                   II
   No. CIV.A. 3:00–CV–2372–D.             |   May 18, 2001.

                                                                                                   A
       MEMORANDUM OPINION AND ORDER
                                                                   The court agrees that Hinds' official capacity claims are
FITZWATER, District J.                                             redundant of his action against the City. A suit against a
                                                                   government official in his official capacity is only another
 *1 Plaintiff Kevin Hinds (“Hinds”) sues defendants Gary           way of pleading an action against an entity of which the
Slagel, Mayor of the City of Richardson (“City”), Bill Keffler,    official is an agent. Monell v. Dep't of Soc. Servs., 436 U.S.
City Manager of the City, Kenneth Yarbrough, the City Chief        658, 690 n. 55 (1978). If the government entity receives notice
of Police, and Raymond Noah (“Judge Noah”), the City               and an opportunity to respond, an official-capacity suit is
Municipal Judge, in their official and individual capacities,      treated as a suit against the entity. Ky. v. Graham, 473 U.S.
arising from his November 1, 1998 warrantless arrest by City       159, 166 (1985). A suit against a municipal official in his
police officers for a class C misdemeanor, the towing and          official capacity is not a suit against him personally, because
impoundment of his vehicle, which was located on his private       the real party in interest is the entity. Id. There is no longer any
property, and court proceedings conducted by Judge Noah            need to bring official-capacity actions. Accordingly, Hinds'
following his arrest. On March 19, 2001 defendants filed a         official capacity claims are dismissed.
motion to dismiss under Fed.R.Civ.P. 12(b)(6). On March 28,
2001 defendants filed an amended motion to dismiss. Hinds
has responded to both motions. 1 The court grants the motion                                        B
in part, denies it in part, and orders Hinds to file a Rule 7(a)
reply no later than 30 days after this memorandum opinion          Defendants also contend the individual defendants are
and order is filed.                                                entitled to qualified immunity. The court declines at the
                                                                   Rule 12(b)(6) stage to dismiss Hinds' complaint on this basis
                                                                   without first requiring a Rule 7(a) reply and then affording
                                                                   defendants a chance to move to dismiss or for summary
                               I
                                                                   judgment once they have reviewed the reply.
Hinds brings this pro se action under 42 U.S.C. § 1983,
seeking relief on the ground that he was subjected to               *2 Hinds is not required to anticipate the defense of
an unreasonable search and seizure, in violation of his            qualified immunity and provide greater specificity in his
                                                                   complaint. Todd v. Hawk, 72 F.3d 443, 446 (5th Cir.1995)
federal constitutional rights. 2 He contends he was unlawfully
                                                                   (per curiam) (citing Schultea v. Wood, 47 F.3d 1427, 1433–
arrested without a warrant or probable cause and jailed for a
                                                                   34 (5th Cir.1995) (en banc)). Instead, a two-step procedure
non-jailable class C misdemeanor offense rather than being
                                                                   applies. The plaintiff must initially “file a short and plain
taken directly before a magistrate, and that his car was
                                                                   statement of his claim pursuant to Rule 8(a)(2).” Id. This
illegally seized and impounded. Hinds also complains that
                                                                   pleading is then “followed by a more particularized reply
Judge Noah violated his rights while arraigning him on the
                                                                   pursuant to Rule 7.” Id. Where, as here, the public official
misdemeanor charges against him and in requiring that he
                                                                   “pleads the affirmative defense of qualified immunity in his
post a bond to secure his release before he was afforded a trial
                                                                   answer, the district court may, on the official's motion or on
or found guilty of the charges.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Hinds v. Slagel, Not Reported in F.Supp.2d (2001)


its own, require the plaintiff to reply to that defense in detail.”    *3 The action against Judge Noah is therefore dismissed
Schultea, 47 F.3d at 1433. “[T]he reply must be tailored              except to the extent that Hinds sues him under § 1983 for
to the assertion of qualified immunity and fairly engage its          prospective injunctive or declaratory relief.
allegations.” Id. “Heightened pleading requires allegations of
fact focusing specifically on the conduct of the individual who
caused the plaintiff['s] injury.” Reyes v. Sazan, 168 F.3d 158,
                                                                                                     D
161 (5th Cir.1999).
                                                                      The City moves to dismiss on the ground that it is entitled
Accordingly, the court declines to dismiss Hinds' actions             to sovereign immunity. The predicate for this assertion is
against the individual defendants at this juncture based on           not sovereign immunity in its usual sense, but is instead the
qualified immunity. He must file a Rule 7(a) reply no later           contention that Hinds has failed to plead a municipal custom
than 30 days after this memorandum opinion and order is               or policy. What the City is actually arguing is that it cannot
filed.                                                                be held liable on the basis of respondeat superior, which is
                                                                      a well established legal doctrine. See Monell v. Dep't of Soc.
                                                                      Servs., 436 U.S. 658, 691 (1978); Reimer v. Smith, 663 F.2d
                                C                                     1316, 1323 (5th Cir. Dec. 1981). Hinds responds that the City
                                                                      should not be dismissed “unless and until it provides proof
Defendants next maintain that Judge Noah is entitled                  that the actions taken by its officers w[ere] not a direct result
to judicial immunity under federal and state law. Hinds               of its own rules, regulations, ordinances, policy and custom.”
responds that Judge Noah admits to imposing a bail                    P. Resp. at 5.
requirement on individuals arrested for non-jailable offenses
and incarcerating them if they cannot meet the bail                   Hinds must establish that a “deprivation of rights protected
requirement. Citing Pulliam v. Allen, 466 U.S. 522 (1984),            by the Constitution or federal law” was inflicted pursuant
he contends that Judge Noah does not enjoy immunity from              to an official municipal policy. See Campbell v. City of San
injunctive or declaratory relief for such action and for an           Antonio, 43 F.3d 973, 977 (5th Cir.1995). He is obligated to
award of attorney's fees, even if he concededly is immune             establish that a municipal policy or custom actually inflicted
from an award of damages. The court agrees with Hinds that,           the constitutional injury that he alleges. Monell, 436 U.S. at
to the extent he seeks injunctive or declaratory relief against       694. The burden to prove policy, custom, or practice is on
Judge Noah under § 1983, his suit may proceed. See Pulliam,           the plaintiff. The defendant municipality need not disprove it.
466 U.S. at 541 (holding that judicial immunity is not a bar          See, e.g., Bennett v. City of Slidell, 728 F.2d 762, 767 (5th
to § 1983 action seeking prospective injunctive or declaratory        Cir.1984) (en banc). Hinds must also show that “there is a
relief). Otherwise, his action against Judge Noah is dismissed.       direct causal link between a municipal policy or custom and
                                                                      the alleged constitutional deprivation.” City of Canton, Ohio
Hinds cannot recover attorney's fees under § 1988—the                 v. Harris, 489 U.S. 378, 385 (1989).
statutory corollary to § 1983—because he does not allege that
he is an attorney. See Schinzing v. City of Burleson, Civil           Hinds' assertions against the City seem to rest primarily on
Action No. 3:95–CV–1595–D, slip op. at 4 n. 4 (N.D.Tex.               the concept of respondeat superior. See 1st Am. Compl. at
May 22, 1996) (Fitzwater, J.) (holding that pro se litigant who       ¶¶ 25–26. Although he also appears to attempt to assert that
was not attorney could not recover attorney's fees under §            the persons in question acted according to municipal policy,
1988, the attorney's fee statute that applies to § 1983 actions)      custom, or practice, see id. at ¶¶ 13, 17, 19, 22, and 26,
(citing Cofield v. Atlanta, 648 F.2d 986, 988 (5th Cir. Unit B        he does not allege a direct causal link between a municipal
June 1981) (holding that “section 1988 is not to compensate           policy or custom and the alleged constitutional deprivation.
a worthy advocate but to enable and encourage a wronged               Nevertheless, in the context of a Rule 12(b)(6) motion, “[t]he
person to retain a lawyer”)). He cannot recover any relief            court may dismiss a claim [only] when it is clear that the
under Texas law because Judge Noah is entitled to absolute            plaintiff can prove no set of facts in support of his claim
judicial immunity. See, e.g., Spencer v. City of Seagoville, 700      that would entitle him to relief.” Jones v. Greninger, 188
S.W.2d 953, 957–58 (Tex.App.1985, no writ) (on rehearing).            F.3d 322, 324 (5th Cir.1999) (per curiam) (citing Fee v.
                                                                      Herndon, 900 F.2d 804, 807 (5th Cir.1990)). “In analyzing
                                                                      the complaint, [the court] will accept all well-pleaded facts as



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
Hinds v. Slagel, Not Reported in F.Supp.2d (2001)


                                                                         Canada v. FDIC, 733 F.Supp. 1091, 1094 (N.D.Tex.1990)
true, viewing them in the light most favorable to the plaintiff.
                                                                         (Fitzwater, J.), the court is unable to say that he can prove no
Id. (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395,
                                                                         set of facts, consistent with the allegations, that would entitle
1401 (5th Cir.1996)). “The issue is not whether the plaintiff
                                                                         him to relief against the City. The court therefore denies the
will ultimately prevail, but whether he is entitled to offer
                                                                         amended motion to dismiss in this respect.
evidence to support his claim.” Id. (citing Doe, 81 F .3d at
1401). “Thus, the court should not dismiss the claim unless
                                                                          *4 The court grants in part and denies in part defendants'
the plaintiff would not be entitled to relief under any set of
                                                                         March 28, 2001 amended motion to dismiss and orders Hinds
facts or any possible theory that he could prove consistent
                                                                         to file a Rule 7(a) reply no later than 30 days after this
with the allegations in the complaint.” Id. (citing Vander Zee
                                                                         memorandum opinion and order is filed. The court denies
v. Reno, 73 F.3d 1365, 1368 (5th Cir.1996)). Under the highly
                                                                         defendants' March 19, 2001 motion to dismiss as moot.
deferential standard of Conley v. Gibson, 355 U.S. 41, 45–
46 (1957), and viewing the allegations of Hinds' amended
                                                                         SO ORDERED.
complaint in the light most favorable to him for purposes
of deciding the motion to dismiss, see, e.g., Royal Bank of


Footnotes
1      In view of the filing of the amended motion to dismiss, defendants' March 19, 2001 motion to dismiss is denied as moot.
2      He also appears to assert a pendent claim asserting a violation of the Texas Constitution. See 1st Am. Compl. ¶ 12.
3      They also assert that the individual defendants are entitled to official immunity. This argument is based on their being sued in their
       official capacities. See Am. Mot. at 3, ¶ 5. Considering the court's dismissal of these official capacity claims, see infra § II(A), the
       court need not address this ground of their motion.


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         3
In re Doe, 19 S.W.3d 249 (2000)




                                                                  [2]   Abortion and Birth Control
                     19 S.W.3d 249                                          Proceedings
                 Supreme Court of Texas.
                                                                        Determination of whether minor is mature and
                      In re Jane DOE.                                   sufficiently well informed, as required to be
                                                                        entitled to court order authorizing her to consent
            No. 00–0140.       |    Feb. 25, 2000.                      to abortion without notifying her parents, is
                                                                        a question of fact. V.T.C.A., Family Code §
Pregnant minor filed application for a court order authorizing          33.003(i).
her to consent to abortion without notifying her parents. The
trial court denied application, finding that minor was not              2 Cases that cite this headnote
sufficiently well informed to make decision without notifying
her parents. Minor appealed. The Court of Appeals affirmed.
                                                                  [3]   Abortion and Birth Control
Granting minor's petition for review, the Supreme Court,
                                                                            Proceedings
Phillips, C.J., held, as matters of first impression, that: (1)
Family Code did not prohibit Supreme Court from releasing               Determination of whether minor is mature and
opinion to public; (2) review of denial of order was subject            sufficiently well informed, as required to be
to legal and factual sufficiency standards; (3) requirements            entitled to court order authorizing her to consent
to be mature and sufficiently well informed would be met if             to abortion without notifying her parents, is
minor was capable of reasoned decision making and decision              subject to legal and factual review standard.
was not based on impulse; and (4) trial court must consider             V.T.C.A., Family Code §§ 33.003(i), 33.004(i).
totality of circumstances in making decisions as to whether
                                                                        40 Cases that cite this headnote
minor was mature and sufficiently well informed.

Reversed and remanded to the trial court.                         [4]   Abortion and Birth Control
                                                                            Proceedings
Enoch, J., concurred in part and filed a separate opinion, in           When a minor meets the statutory threshold for
which Baker, Hankinson, and O'Neill JJ., joined.                        court order authorizing her to consent to abortion
                                                                        without notifying her parents, the trial court must
Owen, J., concurred in part and filed a separate opinion, in            grant the application. V.T.C.A., Family Code §
which Phillips, C.J., joined in part.                                   33.003(i).

Hecht, J., filed a dissenting opinion, in which Abbott, J.,             Cases that cite this headnote
joined.
                                                                  [5]   Statutes
                                                                             Plain Language; Plain, Ordinary, or
 West Headnotes (12)                                                    Common Meaning
                                                                        Supreme Court's focus in construing statutes is
                                                                        to determine the Legislature's intent, which it
 [1]    Courts                                                          discerns primarily from the plain meaning of the
            Opinions                                                    words chosen.
        Family Code's requirement of confidentiality in
        appeals from denial of order authorizing minor to               1 Cases that cite this headnote
        consent to abortion without notifying her parents
        did not prohibit Supreme Court from releasing             [6]   Abortion and Birth Control
        opinions to public. V.T.C.A., Family Code §§                        Capacity and maturity
        33.003(k, l), 33.004(c, f).
                                                                        Minor is mature and sufficiently well informed
        Cases that cite this headnote                                   to make the decision to have an abortion
                                                                        without notification to either of her parents when


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
In re Doe, 19 S.W.3d 249 (2000)


        the evidence demonstrates that the minor is                 to abortion without notifying her parents, she
        capable of reasoned decision making and that                should not be required to obtain information or
        her decision is not the product of impulse, but is          other services from any particular provider or
        based upon careful consideration of the various             to meet with or review materials that advocacy
        options available to her and the benefits, risks,           or religious groups provide; inquiry is whether
        and consequences of those options. V.T.C.A.,                she has obtained information on the relevant
        Family Code § 33.003(i).                                    considerations from reliable sources of her
                                                                    choosing that enable her to make a thoughtful
        1 Cases that cite this headnote                             and informed decision. V.T.C.A., Family Code
                                                                    § 33.003(i).
 [7]    Abortion and Birth Control
                                                                    2 Cases that cite this headnote
            Capacity and maturity
        Trial court should take into account the totality
        of circumstances a minor presents in determining     [10]   Abortion and Birth Control
        whether she is mature and sufficiently well                     Capacity and maturity
        informed, so as to be entitled to court order               Abortion and Birth Control
        authorizing her to consent to abortion without                  Proceedings
        notifying her parents. V.T.C.A., Family Code §              Determination of maturity under statute
        33.003(i).                                                  governing orders authorizing minor to consent
                                                                    to abortion without notifying her parents
        Cases that cite this headnote
                                                                    necessarily involves more trial court discretion
                                                                    than determination of whether minor is
 [8]    Abortion and Birth Control                                  sufficiently well informed; however, if a court
            Approval by court; bypass in general                    determines that a minor has not demonstrated
        For minor to establish that she is sufficiently             that she is mature enough to make a decision to
        well informed, as required to be entitled to order          undergo an abortion, then the court should make
        authorizing her to consent to abortion without              specific findings concerning its determination so
        notifying her parents, the minor must make, at              that there can be meaningful review on appeal.
        a minimum, three showings: (1) she must show                V.T.C.A., Family Code § 33.003(i).
        that she has obtained information from a health-
                                                                    12 Cases that cite this headnote
        care provider about the health risks associated
        with an abortion and that she understands those
        risks; (2) she must show that she understands the    [11]   Abortion and Birth Control
        alternatives to abortion and their implications;                Proceedings
        and (3) she must show that she is also aware                When determining minor's maturity under statute
        of the emotional and psychological aspects of               governing orders authorizing minor to consent to
        undergoing an abortion. V.T.C.A., Family Code               abortion without notifying her parents, if a court
        § 33.003(i).                                                concludes that a minor is not credible in some
                                                                    respect that directly relates to its determination
        2 Cases that cite this headnote
                                                                    of maturity, the court should make specific
                                                                    findings in that regard. V.T.C.A., Family Code §
 [9]    Abortion and Birth Control                                  33.003(i).
            Approval by court; bypass in general
                                                                    Cases that cite this headnote
        While a minor must demonstrate a knowledge
        and appreciation of the various considerations
        involved in her decision to show she is              [12]   Abortion and Birth Control
        sufficiently well informed, as required to be                   Capacity and maturity
        entitled to order authorizing her to consent



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In re Doe, 19 S.W.3d 249 (2000)


         In making a determination of maturity under               We conclude that in this case, the minor has not met the
         statute authorizing minor to consent to abortion          statutory standard. Because this Court has not previously
         without notifying her parents, minor's age,               provided guidance to trial and appellate courts about what a
         educational background, and grades in school,             minor must show under section 33.003 of the Texas Family
         while indicative of some level of maturity, are           Code to demonstrate that she is mature and sufficiently well
         not conclusive on the issue of maturity, nor is           informed, we remand this case to the trial court in the interest
         participation in extra-curricular activities; also,       of justice. In so doing, we direct that upon remand, the
         minor's socio-economic status should not bear on          proceedings in the trial court must be concluded as if Doe's
         the decision. V.T.C.A., Family Code § 33.003(i).          application had been filed the day after our opinion issues.
                                                                   See TEX. FAM.CODE § 33.003(h). In the event that the
         1 Cases that cite this headnote                           minor requires additional time after issuance of this opinion to
                                                                   prepare for a hearing, she may, of course, request an extension
                                                                   of time. See id.



                       *250 OPINION                                                                I

Chief Justice PHILLIPS delivered the opinion of the Court          Jane Doe is a pregnant, unmarried minor. Her eighteenth
as to Parts I–VI and a concurring opinion as to Part VII, all      birthday will occur within a few months. She lives at home
of which Justice GONZALES joins. Justice ENOCH, Justice            with her parents, and she has not been emancipated. Pursuant
BAKER, Justice HANKINSON, and Justice O'NEILL join                 to Family Code section 33.003, she sought an order from
in Parts I, II, and IV–VI of the Court's opinion and in the        the trial court allowing her to consent to an abortion without
judgment. Justice OWEN joins in Parts I, II, and III of the        having to notify either of her parents. See TEX. FAM.CODE
Court's opinion and in the judgment. Justice HECHT and             § 33.003.
Justice ABBOTT join in Parts II and III of the Court's opinion.
                                                                   Jane Doe was represented by counsel of her choice, and
This is a confidential appeal from a court of appeals' decision    as the Family Code requires, the trial court appointed a
affirming a trial court's *251 denial of a minor's application     guardian ad litem. See id. § 33.003(e). At the conclusion of
for a court order authorizing her to consent to an abortion        a hearing, the trial court denied Jane Doe's application and
without notifying her parents. Our Court is called upon to         issued written findings and conclusions in accordance with
determine what the Legislature intended in Texas's parental        Texas Family Code section 33.003(h). Jane Doe appealed to
notification statute when it wrote that a court “shall enter       the court of appeals, which affirmed the trial court's judgment
an order” that a minor is “authorize[d] ... to consent to          without an opinion. She now appeals to this Court. See id. §
the performance of [an] abortion” if she demonstrates “by          33.004(f). She contends that she has conclusively established
a preponderance of the evidence [that she] is mature and           that she is mature and is sufficiently well informed to make
sufficiently well informed to make the decision to have            a decision about terminating her pregnancy without notifying
an abortion performed without notification to either of her        her parents. She also has presented a limited argument that the
parents....” TEX. FAM.CODE § 33.003(i). We are not called          trial court erred in failing to conclude that notification would
upon to decide the constitutionality or wisdom of abortion.        not be in her best interest. See id. § 33.003((i). Because she
Arguments for or against abortion do not advance the issue         did not present this latter issue to the court of appeals, we will
of statutory construction presented by this case. Instead, our     not consider it.
sole function in this case is to interpret and apply the statute
enacted by our Legislature.                                        Before we turn to the merits of the issues before us, however,
                                                                   there are two significant procedural matters that we must
The trial court in this case concluded that although the minor     resolve. The first is whether the Family Code prohibits us
“shows signs of being mature, she has not demonstrated that        from releasing our opinions to the public in these types of
she is sufficiently well informed about the medical procedures     matters. The second is what standard of appellate review
and the emotional impact of the procedure.” The court of           applies in cases arising under sections 33.003 and 33.004 of
appeals affirmed, and the minor has appealed to this Court.        the Family Code.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
In re Doe, 19 S.W.3d 249 (2000)


                                                                                by the minor, or a governmental
                                                                                agency or attorney in a criminal or
                                                                                administrative action seeking to assert
                              II
                                                                                or protect the interest of the minor.
 [1] Family Code sections 33.003 and 33.004 contain many
                                                                   TEX. FAM.CODE § 33.004(c).
provisions designed to ensure the minor's anonymity and
the confidentiality of the judicial bypass proceeding. *252
                                                                   The Code's judicial bypass provisions concerning appeals
Among these are provisions that, in effect, direct the trial
                                                                   in this Court do not, however, contain directives regarding
court and the court of appeals not to publicly disseminate their
                                                                   dissemination of opinions or rulings. The Family Code
rulings. See TEX. FAM.CODE §§ 33.003(k),(l ); 33.004(c).
                                                                   requires only that a “confidential appeal” shall be available
                                                                   to any pregnant minor to whom a court of appeals denies
Family Code section 33.003 directs that a minor's application
                                                                   consent:
to the trial court, all other documents pertaining to the
proceedings, and the trial court's ruling are confidential and                  (f) An expedited confidential appeal
privileged. See TEX. FAM.CODE §§ 33.003(k), (l ). The                           shall be available to any pregnant
statute is explicit about those who may receive notice of the                   minor to whom a court of appeals
trial court's ruling:                                                           denies an order authorizing the minor
                                                                                to consent to the performance of
            (l ) An order of the court issued
                                                                                an abortion without notification to
            under this section is confidential
                                                                                either of her parents or a managing
            and privileged and is not subject
                                                                                conservator or guardian.
            to disclosure under Chapter 552,
            Government Code, or discovery,                         TEX. FAM.CODE § 33.004(f). The requirement of a
            subpoena, or other legal process. The                  “confidential appeal” is not an impediment to publishing our
            order may not be released to any                       opinions. We can do so without disclosing the identity of the
            person but the pregnant minor, the                     minor, the court of appeals, or the trial court.
            pregnant minor's guardian ad litem,
            the pregnant minor's attorney, another                 As the head of the third branch of government with regard
            person designated to receive the order                 to civil matters, this Court has an obligation to provide
            by the minor, or a governmental                        guidance to lower courts through its published opinions.
            agency or attorney in a criminal or                    There would be no means of insuring consistency, uniformity,
            administrative action seeking to assert                and predictability of the law if the court of last resort could
            or protect the interest of the minor.                  not commit its analyses, reasoning, and decisions to writing
                                                                   in opinions and disseminate those opinions to the public.
TEX. FAM.CODE § 33.003(l ).
                                                                   Without some explication from this Court of the meaning
                                                                   of “mature and sufficiently well informed,” different courts
Similarly, Family Code section 33.004(c) prohibits the court
                                                                   around the state at both the trial and appellate level would
of appeals from publishing its ruling:
                                                                   surely arrive at very different constructions of what the statute
            (c) A ruling of the court of                           requires. This result would undermine the rule of law that
            appeals issued under this section is                   undergirds our whole system of justice.
            confidential and privileged and is not
            subject to disclosure under Chapter                    By publicly announcing our construction of this statute, the
            552, Government Code, or discovery,                    Legislature and the public will know the meaning that we
            subpoena, or other legal process. The                  have ascribed to it, and can order their behavior accordingly.
            ruling may not be released to any                      In particular, the people, through their elected representatives,
            person but the pregnant minor, the                     will have full opportunity to change the law, if they so desire,
            pregnant minor's guardian ad litem,                    in light of the way the judiciary is interpreting and applying it.
            the pregnant minor's attorney, another
            person designated to receive the ruling



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
In re Doe, 19 S.W.3d 249 (2000)


We note that we are not called upon to express an opinion          to consent to the performance of the abortion without
about the constitutionality of the provisions of the Family        notification to either of her parents....” TEX. FAM.CODE
Code *253 that prohibit the lower courts from making their         § 33.004(i)(emphasis added). Furthermore, in determining
rulings publicly available. Those questions must be decided        whether a minor is “mature and sufficiently well informed,”
another day.                                                       the trial court is not to weigh policy considerations; it simply
                                                                   makes a factual determination. When the trial court acts
                                                                   primarily as a factfinder, appellate courts normally review
                                                                   its determinations under the legal and factual sufficiency
                              III
                                                                   standards. See Bocquet, 972 S.W.2d at 21; Catalina v.
The second important procedural issue involves the standard        Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We therefore apply
of review that appellate courts are to apply in reviewing trial    that standard of review to this appeal. 1
court rulings. Because section 33.004 is silent on this issue,
we look to the standards of review we apply to other trial court   Unlike the courts of appeals, our Court may only engage
decisions.                                                         in legal sufficiency review. See TEX. CONST. art. V, §
                                                                   6. In reviewing legal sufficiency, however, we may set
 [2] First, we must determine whether the “mature and              forth factors and principles for lower courts to follow in
sufficiently well informed” requirement is a question of           determining and reviewing whether a minor is “mature
fact or of law. Section 33.003 provides that the trial judge       and sufficiently well informed” to make this decision
should determine these questions by “a preponderance of the        without parental notification. See Bocquet, 972 S.W.2d
evidence.” TEX. FAM.CODE § 33.003(i). This requirement             at 21 (reasonableness and necessity of attorney's fees);
implies that the trial judge is to weigh the evidence and          Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30–31
determine the credibility of the minor or any other witnesses.     (Tex.1994)(gross negligence).
These are typical fact-finding functions, performed by a
trial court only after hearing the minor's live testimony and
viewing her demeanor.
                                                                                               *254 IV

 [3] Next, we determine whether the trial court's factual          We turn next to the standard of proof the Legislature intended
findings on these issues are subject to an abuse of discretion     to require in the parental notification statute. The Texas
review standard or a legal and factual sufficiency review          parental notification statute was enacted against a backdrop
standard. The abuse of discretion standard applies when a          of over two decades of decisions from the United States
trial court has discretion either to grant or deny relief based    Supreme Court. One of the seminal opinions regarding
on its factual determinations. See Bocquet v. Herring, 972         minors and abortion is Bellotti v. Baird, 443 U.S. 622, 99
S.W.2d 19, 20–21 (Tex.1998). This standard is especially           S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ). In Bellotti
appropriate when the trial court must weigh competing              a state had enacted a statute that required parental consent
policy considerations and balance interests in determining         before a physician could perform an abortion on a minor, with
whether to grant relief. See General Tire, Inc. v. Kepple,         certain limited exceptions. A plurality of the Court reiterated
970 S.W.2d 520, 526 (Tex.1998). Thus, the abuse of                 in Bellotti II what a majority of the Court had previously
discretion standard is typically applied to procedural or          held in Planned Parenthood of Central Missouri v. Danforth,
other trial management determinations. See, e.g., National         428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976): “
Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 128                  ‘[T]he State may not impose a blanket provision ... requiring
(Tex.1996)(attorney disqualification); City of Brownsville v.      the consent of a parent ... as a condition for abortion of an
Alvarado, 897 S.W.2d 750, 753–54 (Tex.1995)(admission of           unmarried minor,’ ” and that it would be “inappropriate ‘to
evidence); Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852         give a third party an absolute, and possibly arbitrary, veto over
(Tex.1992)(discovery sanctions).                                   the decision of the physician and his patient to terminate the
                                                                   patient's pregnancy, regardless of the reason for withholding
By contrast, in this case the trial court has no discretion        the consent.’ ” Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035
over the order. The statute provides that if the court             (plurality opinion) (quoting Danforth, 428 U.S. at 74, 96 S.Ct.
finds that the minor is “mature and sufficiently well              2831). The Bellotti II plurality further concluded that parental
informed,” it “shall enter an order authorizing the minor          consent statutes would not pass constitutional muster unless


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In re Doe, 19 S.W.3d 249 (2000)


the state provided an alternative procedure in which a minor        who wants to have an abortion without notifying one of her
could receive authorization for an abortion. Id. (plurality         parents to “file an application for a court order authorizing the
opinion).                                                           minor to consent to the performance of an abortion without
                                                                    notification to either of her parents....” TEX. FAM.CODE
Thus, the plurality concluded that a minor must be permitted        § 33.003(a). When a minor files such an application, the
an opportunity to show “either: (1) that she is mature enough       court “shall determine by a preponderance of the evidence”
and well enough informed to make her abortion decision, in          whether:
consultation with her physician, independently of her parents'
wishes; or (2) that even if she is not able to make this decision     1. The minor is “mature and sufficiently well informed to
independently, the desired abortion would be in her best                 make the decision to have an abortion performed without
interests.” Id. at 643–44, 99 S.Ct. 3035 (plurality opinion).            notification to either of her parents;” or
With regard to the determination of maturity, “the peculiar
                                                                      2. Notification would not be in the best interest of the
nature of the abortion decision requires the opportunity for
                                                                         minor; or
case-by-case evaluations of the maturity of pregnant minors.”
Id. at 643 n. 23, 99 S.Ct. 3035 (plurality opinion). The Bellotti     3. Notification may lead to physical, sexual, or emotional
II plurality also concluded that a parental bypass proceeding            abuse of the minor.
must maintain the anonymity of the minor and must be
completed with “sufficient expedition to provide an effective       TEX. FAM.CODE § 33.003(i). If the court makes any of these
opportunity for an abortion to be obtained.” Id. at 644, 99         determinations, the court “shall enter an order authorizing
S.Ct. 3035 (plurality opinion). A majority of the United States     the minor to consent to the performance of the abortion
Supreme Court has subsequently approved the Bellotti II             without notification to either of her parents....” Id. Because
parental bypass requirements. See City of Akron v. Akron            the Legislature used the imperative word “shall,” we conclude
Center for Reproductive Health, Inc., 462 U.S. 416, 439–442,        that when a minor meets the statutory threshold, the trial
103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I ) (holding           court must grant the application. See TEX. GOV'T CODE §
parental consent statute unconstitutional in light of Bellotti      311.016(2).
II ); Ohio v. Akron Center for Reproductive Health, 497
U.S. 502, 511–13, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990)             [5] Our focus in construing this statute is to determine the
(Akron II ) (declining to decide whether parental bypass was        Legislature's intent; this we discern primarily from the plain
constitutionally required in a notification rather than a consent   meaning of the words chosen. See, e.g., Surgitek, Bristol–
statute, but applying Bellotti II requirements). Our Legislature    Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex.1999);
was obviously aware of this jurisprudence when it drafted the       Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d
statute before us.                                                  864, 865 (Tex.1999); Liberty Mutual Ins. Co. v. Garrison
                                                                    Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). In
                                                                    section 33.003(i), the Legislature has succinctly stated that
                                                                    the minor must be “mature and sufficiently well informed
                                V
                                                                    to make the decision to have an abortion performed without
Against this backdrop our Legislature, like the legislatures of     notification to either of her parents....” TEX. FAM.CODE §
a number of other states, has chosen to require only parental       33.003(i). The brevity of the requirement does not, however,
notification, not parental consent. And like the other states       mean that it is insubstantial. The Legislature undoubtedly
that require only parental notification, our Legislature did not    intended the bypass procedure to be a meaningful one. In
specify the particular information a minor must have before         requiring that a minor demonstrate that she is mature and
she can be considered “sufficiently well informed” to make          sufficiently well informed, the Legislature took into account
                                                                    the gravity and potential consequences of the irreversible
the decision independently. 2
                                                                    decision to terminate a pregnancy, and sought to assure that
                                                                    the minor's decision was thoughtful and informed.
 *255 [4] The parental notification statute forbids a
physician from performing an abortion on a pregnant,
                                                                     [6] Thus, we conclude that a minor is “mature and
unemancipated minor without giving notice to the minor's
                                                                    sufficiently well informed to make the decision to have
parents at least 48 hours before the procedure. See TEX.
                                                                    an abortion without notification to either of her parents”
FAM.CODE § 33.002(a). But the act allows a pregnant minor


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In re Doe, 19 S.W.3d 249 (2000)


when the evidence demonstrates that the minor is capable           explicitly assessed the minor's character and judgment
of reasoned decision-making and that her decision is not the       directly. Most of the decisions have also considered the
product of impulse, but is based upon careful consideration        minor's job experience and experience handling finances,
of the various options available to her and the benefits, risks,   particularly assessing whether the minor is aware of the
and consequences of those options. See In re Anonymous,            financial obligations inherent in raising a child. Almost
711 So.2d 475, 477 (Ala.Civ.App.1998); In re Petition of           all courts conduct the maturity inquiry, either explicitly
Anonymous 1, 251 Neb. 424, 558 N.W.2d 784, 788 (1997);             or implicitly, against the background circumstances of the
In re Petition of Anonymous 2, 253 Neb. 485, 570 N.W.2d            minor's experience. These include the minor's relationship
836, 838–39 (1997); In re Jane Doe, 126 N.C.App. 401, 485          with her parents, whether she has social and emotional
S.E.2d 354, 356 (1997). The decisions of a number of other         support, particularly from the male who would be a father,
state courts construing similar statutes, which were available     and other relevant life experiences.
to the Legislature at the time they enacted section 33.003(i),
inform our interpretation. See Ex Parte Anonymous, 618
So.2d 722, 725 (Ala.1993); In re Petition of Jane Doe for
                                                                                                  VI
Waiver of Notice, 19 Kan.App.2d 204, 866 P.2d 1069, 1074–
75 (1994); *256 In re Mary Moe, 18 Mass.App.Ct. 727, 469            [7]   [8] We conclude that a trial court should take into
N.E.2d 1312, 1315 (1984); Cf. In re Anonymous, 674 So.2d           account the totality of circumstances the minor presents in
1317, 1318 (Ala.Civ.App.1995); In re Anonymous, 655 So.2d          determining whether she is mature and sufficiently well
1052, 1054 (Ala.Civ.App.1995).                                     informed. In order to establish that she is sufficiently well
                                                                   informed, the minor must make, at a minimum, three
Obviously, whether a minor is mature and sufficiently well         showings.
informed is a highly individualized decision that must take
into account the diverse background and circumstances              First, she must show that she has obtained information from
of each applicant for waiver of parental notification. An          a health-care provider about the health risks associated with
examination of decisions from other states' courts reveals         an abortion and that she understands those risks. That would
consistent themes. All of the decisions wrestle with “mature”      include an understanding of the risks associated with the
and “informed,” two concepts that overlap to some extent,          particular stage of the minor's pregnancy.
but which are also distinct. States make a distinction between
the information, and the minor's ability to understand that        Second, she must show that she understands the alternatives
information and deal with it responsibly.                          to abortion and their implications. As with any medical
                                                                   procedure, part of making an informed decision is knowing
The states that have written on this issue, including Alabama,     the available alternatives. A minor should be able to
Kansas, Massachusetts, Nebraska, North Carolina, and Ohio          demonstrate that she has given thoughtful consideration to her
require that the minor has been informed as to the alternatives    alternatives, including adoption and keeping the child. She
to abortion, to the nature of the abortion procedure and its       should also understand that the law requires the father to assist
risks, and the physical, emotional, and social consequences        in the financial support of the child. See TEX. FAM.CODE §
of either abortion or bringing the pregnancy to term. The          154.001; see also TEX. CONST. art. XVI, § 28 (garnishment
Alabama Court of Civil Appeals has suggested that the              of wages for court-ordered child support payments). She
information about the risks and options should be targeted to      should not be required to justify why she prefers abortion
an individual's specific circumstances. See In re Anonymous,       above other options, only that she is fully apprised of her
650 So.2d 923, 925 (Ala.Civ.App.1994). But the courts              options.
are also careful to ensure that the minor understands that
information, and has assimilated it in a mature way. To this       Third, she must show that she is also aware of the emotional
end, they have inquired into how a minor might respond             and psychological aspects of undergoing an abortion, which
to certain contingencies, particularly assessing whether the       can be significant if not severe for some women. She
minor will seek counseling in the event of physical or             must also show that she has *257 considered how this
emotional complications. Many courts have assessed the             decision might affect her family relations. Although the minor
minor's school performance and activities, as well as the          need not obtain this information from licensed, professional
minor's future and present life plans. A few courts have           counselors, she must show that she has received information



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In re Doe, 19 S.W.3d 249 (2000)


about these risks from reliable and informed sources, so           After reviewing this record, we conclude that she has not
that she is aware of and has considered these aspects of the       established as a matter of law that she is sufficiently well
abortion procedure.                                                informed to make the decision to have an abortion performed
                                                                   without notifying her parents. But because this is a matter of
 [9] While a minor must demonstrate a knowledge and                first impression, in the interests of justice, we remand to the
appreciation of the various considerations involved in her         trial court for further hearing and consideration. 3
decision, she should not be required to obtain information or
other services from any particular provider. Nor should she
be required to meet with or review materials that advocacy
or religious groups provide. The inquiry is whether she has                                CONCLUSION
obtained information on the relevant considerations from
                                                                  For the reasons we have discussed, we reverse the judgment of
reliable sources of her choosing that enable her to make a
                                                                  the court of appeals and remand this case to the trial court for
thoughtful and informed decision.
                                                                  further hearing and consideration. We have already indicated
                                                                  the time stricture within which further proceedings in the
 [10] [11] A determination of maturity necessarily involves
                                                                  trial court must be concluded. Importantly, the court should
more trial court discretion. However, if a court determines
                                                                  schedule its proceedings with the additional consideration
that a minor has not demonstrated that she is mature enough
                                                                  that it must maintain the minor's confidentiality. Section
to make a decision to undergo an abortion, then the court
                                                                  33.003 allows the trial court to give proceedings of this
should make specific findings concerning its determination so
                                                                  type “precedence over other pending matters to the extent
that there can be meaningful review on appeal. Similarly, if a
                                                                  necessary to assure that the *258 court reaches a decision
court concludes that a minor is not credible in some respect
                                                                  promptly.” TEX. FAM.CODE § 33.003(h).
that directly relates to its determination of maturity, the court
should make specific findings in that regard as well.

 [12] A minor who can show that she is sufficiently well           Justice ENOCH filed a concurring opinion, in which Justice
informed may also establish in the process that she is mature.     BAKER, Justice HANKINSON, and Justice O'NEILL join.
In making a determination of maturity, there are, however,
                                                                   Justice OWEN filed a concurring opinion, in which Chief
some criteria that should not be relied upon as conclusively
                                                                   Justice PHILLIPS joined as to Parts I and III.
showing immaturity. The United States Supreme Court has
said that one of those is the fact, standing alone, that the       Justice HECHT filed a dissenting opinion, in which Justice
pregnant female is a minor. That Court has also admonished         ABBOTT joins.
that states and courts “may not make a blanket determination
that all minors ... are too immature to make this decision or      Justice ENOCH, joined by Justice BAKER, Justice
that an abortion never may be in the minor's best interests        HANKINSON, and Justice O'NEILL, concurring.
without parental approval.” Akron I, 462 U.S. at 440, 103          I join parts I, II, IV, V, and VI of the Court's opinion,
S.Ct. 2481. A child's age, educational background or grades        and I join the Court's judgment remanding this appeal in
in school, while indicative of some level of maturity, are not     the interests of justice. I disagree with parts III and VII
conclusive on the issue of maturity. Nor is participation in       for two reasons. One, I believe the standard of review on
extra-curricular activities. It should also go without saying      appeal in a proceeding under the parental notification act
that a minor's socio-economic status should not bear on the        should be abuse of discretion, not factual or legal sufficiency.
decision.                                                          And two, I emphasize that in a proceeding under the
                                                                   parental notification act, our disposition today, remand, is
                                                                   inappropriate except in extraordinary circumstances. Because
                                                                   today we are construing the parental notification act for the
                             VII
                                                                   first time, and because I agree it is in the interests of justice to
As discussed earlier in this opinion, the standard of review is    give Jane Doe an opportunity to meet the statutory standard
legal sufficiency. Thus, unless Jane Doe has shown as a matter     as the Court has construed it, I conclude this case presents
of law that she is mature and sufficiently well informed, we       exceptional circumstances warranting a remand.
would ordinarily affirm the judgment of the court of appeals.



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In re Doe, 19 S.W.3d 249 (2000)


I join the Court's construction of the statutory phrase “mature     Thus, in these unique, non-adversarial, parental notification
and sufficiently well-informed to make the decision to have         proceedings, I would hold that Texas appellate courts must
an abortion performed without notification to either of her         review a trial court's decision under an abuse of discretion
parents.” 1 But I do not agree that the standard of review          standard. That is, did the trial court correctly apply the law to
for appellate review of a trial court's decision that a minor is    the undisputed facts in the record?
not mature or sufficiently well informed is factual and legal
sufficiency. Because of the nature of the unusual proceedings       Moreover, again because of the unusual nature of the
contemplated under sections 33.003 and 33.004 of the Family         proceedings, I believe this Court should review the trial
Code, I would conclude that the appropriate standard of             court's decision, rather than the court of appeals' ruling,
review is abuse of discretion.                                      for abuse of discretion because a case under the parental
                                                                    notification statute reaches us only when the court of appeals
Unlike virtually any other judicial proceeding I am aware           has affirmed the trial court's denial of a minor's application
of, this proceeding is not only “non-adversarial,” but notice       for waiver of parental notice. Thus, the focus in this Court
to the very persons (besides the minor) likely to have the          should remain on whether the trial court misapplied the law
most interest in the outcome of the hearing—the parents who         to the undisputed facts. 3
stand not to be notified of their minor child's decision—is
prohibited. And the secrecy of the proceeding assures that the      An abuse of discretion standard would not diminish the trial
hearing will be entirely one-sided.                                 court's role under the statute. It remains the trial court's role
                                                                    to determine the witness's credibility, as the trial court hears
Because of the nature of this proceeding, then, all the             the minor's testimony in person and is in the best position to
evidence in the record will be undisputed. But the standard         assess the minor's credibility. But the trial court's discretion to
the Legislature chose for trial courts to apply in determining      make credibility determinations should not be unfettered. The
whether a minor is “mature and sufficiently well informed”—         trial court cannot simply disregard the minor's uncontested
preponderance of the evidence—is typically associated               testimony. To decide otherwise—that a trial court is free
with weighing conflicting evidence after an adversarial             to disregard the undisputed evidence despite no question of
proceeding. Thus, we have an anomalous situation—the                veracity—would put the trial court's legal decision beyond
Legislature directs that the minor must demonstrate by a            review. Consequently, whether the trial court can disregard
preponderance of the evidence (which generally means more           the undisputed evidence should depend on whether the record
likely than not) that she is mature and sufficiently well-          before the court raises a significant, legitimate question about
informed, yet because the minor is the only party presenting        the minor's veracity.
evidence on these elements, there is no other evidence against
which to weigh it to see if it is more likely than not.             As mentioned, the parental notification statute prohibits not
                                                                    only general notice of the proceeding, but specific notice to
A preponderance standard for trial court hearings cannot            the very people who likely would have the greatest interest
establish the standard of review on appeal, precisely because       in the minor's application—her parents. 4 It appears to me,
of the unique, unopposed nature of the proceedings. Since the       therefore, that the Legislature intended for these proceedings
hearing in the trial court is not adversarial and no weighing       to be unopposed in all circumstances. That means that the
of disputed evidence can occur, there is no basis for appellate     Legislature did not intend for the trial courts to assume
courts to defer to the trial courts' fact-finding function, as we   the role of an opposing party and reject the undisputed
would in any other ordinary appeal. In other words, unless          evidence in the absence of a reasonable, factual basis to
the evidence in the record raises a question about the minor's      question the minor's credibility. Under similar circumstances,
credibility, the trial court is not free to simply disregard        other courts have also concluded that the trial court may
the undisputed facts provided by the minor. Whether those           not simply choose to discredit the evidence offered by the
undisputed facts demonstrate that the minor is “mature and          minor unless it is “improbable or unreasonable or is shown
sufficiently well informed to make *259 the decision to have
                                                                    to be untrustworthy.” 5 In the case before us, for example,
an abortion” is a legal question. And as we have said before,
                                                                    if the record revealed that, despite her testimony that she
trial courts have no discretion in determining what the law is
                                                                    had conducted Internet research, Doe did not have access
or in applying the law to the facts. 2                              to a computer, the record itself would raise a significant,



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In re Doe, 19 S.W.3d 249 (2000)


legitimate question about her veracity. (Of course, no such          it is in the best interest of justice to allow the minor the
questions appear in this record.)                                    opportunity to meet the test the Court elaborates today for
                                                                     waiver under the act of notification to her parents to consent
Furthermore, I note that throughout the Family Code a trial          to the procedure. Thus, I join the Court's judgment.
court makes decisions bearing on the best interests of a child.
And appellate courts review those decisions under an abuse
                                                                     Justice OWEN, joined by Chief Justice PHILLIPS as to Parts
of discretion standard. 6 This fact strengthens my conviction
                                                                     I and III, concurring.
that an abuse of discretion standard should apply here. In this
                                                                     I join in the Court's judgment reversing the court of appeals
case, the best interests of the child is the subject of two of the
                                                                     and remanding this matter to the trial court for further
three inquiries that the statute sets forth. The same level of
                                                                     proceedings, but I cannot join the opinion of the Court in parts
review should apply to the trial court's decisions regardless
                                                                     IV–VII. The Court refuses to give full effect to the statutory
of the provision under review. But the Court would apply a
                                                                     mandate that before a minor can obtain authorization to
different level of review to the trial court's decision relating
                                                                     proceed with an abortion without notifying one of her parents,
 *260 to maturity and adequacy of information. This cannot
                                                                     she must be “mature and sufficiently well informed to make
but lead to confusion and inconsistency.
                                                                     the decision.” TEX. FAM.CODE § 33.003(i). The Court's
                                                                     interpretation of “sufficiently well informed” falls short of
Nonetheless, having concluded that the standard of review
                                                                     what the Legislature had in mind. Most minors will, with
should be abuse of discretion, I cannot say that the trial
                                                                     the assistance of counsel, be able to meet the requirements
court in this case demonstrably acted “without regard to
                                                                     set by the Court, which are minimal. The plain language of
guiding legal principles.” 7 The primary reason for this is that     the Family Code and its historical backdrop require a more
we have not before had the opportunity to provide guiding            substantive showing.
legal principles. That this trial court may not have properly
comprehended what the Legislature meant by the phrase
“mature and sufficiently well informed” does not equate to
an abuse of discretion in this instance, where no published                                         I
appellate decision existed to guide the trial court. Thus, this
                                                                     The history of how and why the bypass procedure in section
case presents just such an exceptional circumstance and a
                                                                     33.003 of the Family Code came to be sheds light on how it
remand in the interest of justice is warranted. 8                    should be construed. Over twenty years ago, the United States
                                                                     Supreme Court *261 handed down two landmark decisions
But now that this Court has announced the guiding legal              dealing with minors and abortion. See Planned Parenthood
principles, trial courts are not free to disregard those             of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49
principles and substitute their own for determining whether          L.Ed.2d 788 (1976); Bellotti v. Baird, 428 U.S. 132, 96 S.Ct.
a minor demonstrates that she is mature and sufficiently well        2857, 49 L.Ed.2d 844 (1976) (Bellotti I ) (issued the same day
informed to make this most difficult of decisions. And while         as Danforth ). In Danforth, the Supreme Court held for the
the possibility exists that other exceptional circumstances          first time that a parent does not have an absolute “veto” over
in some future situation might also warrant a remand, I              the decision of a minor to terminate her pregnancy:
emphasize that such a result is contemplated neither by the
statute 9 nor by our rules. 10 The time-sensitive nature of the                   [T]he State may not impose a blanket
proceedings and the constitutional implications of the specter                    provision ... requiring the consent of
of protracted hearings and appeals counsel very strongly                          a parent ... as a condition for abortion
against remand as an appellate disposition. And our rules                         of an unmarried minor.... [T]he State
                                                                                  does not have the constitutional
expressly preclude a court of appeals from remanding. 11
                                                                                  authority to give a third party an
                                                                                  absolute, and possibly arbitrary, veto
But here, where the minor has presented a record that
                                                                                  over the decision of the physician and
demonstrates a high level of maturity, and where neither the
                                                                                  his patient to terminate the patient's
minor nor the trial court had the benefit of guidance from
                                                                                  pregnancy, regardless of the reason for
this (or any other appellate decision) on the meaning of the
                                                                                  withholding consent.
phrase “mature and sufficiently well informed,” I believe that



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In re Doe, 19 S.W.3d 249 (2000)


                                                                    2972, 111 L.Ed.2d 405 (1990) (Akron II ) (declining to decide
Danforth, 428 U.S. at 74, 96 S.Ct. 2831. The Court further          whether parental bypass was constitutionally required in a
concluded that “[a]ny independent interest the parent may           notification rather than a consent statute, but applying Bellotti
have in the termination of the minor daughter's pregnancy is        II requirements).
no more weighty than the right of privacy of the competent
minor mature enough to have become pregnant.” Id. at 75, 96         A question specifically left open in United States Supreme
S.Ct. 2831.                                                         Court decisions is whether the parental bypass procedure
                                                                    set forth above is constitutionally mandated when a statute
In so holding, the Supreme Court said that it did not mean to       requires only that a parent be notified that the minor is about
suggest that “every minor, regardless of age or maturity, may       to undergo an abortion as opposed to a statute *262 that
give effective consent for termination of her pregnancy.” Id.       requires parental consent. See, e.g., Lambert v. Wicklund,
at 75, 96 S.Ct. 2831. Consistent with that statement, the Court     520 U.S. 292, 295, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997)
registered its concern that there are “unquestionably greater       (per curiam); Akron II, 497 U.S. at 510, 110 S.Ct. 2972.
risks of inability to give an informed consent” for a minor. See    Nevertheless, there is reasoning in Bellotti II that would
Bellotti I, 428 U.S. at 147, 96 S.Ct. 2857. The Court suggested     suggest that the United States Supreme Court might hold
that a statute requiring parental consent before a minor could      that bypass procedures are necessary in notification statutes.
obtain an abortion might be constitutional if there were also       The statute under consideration in Bellotti II required that a
a provision that allowed the minor to go to court to obtain         parent be notified when a minor brought judicial proceedings
consent. Id.                                                        to obtain consent. See 443 U.S. at 646, 99 S.Ct. 3035.
                                                                    The Supreme Court struck down this provision, observing “
In Bellotti II, a plurality of the Supreme Court adopted what       ‘there are parents who would obstruct, and perhaps altogether
the Court had previously suggested in Bellotti I by holding         prevent, the minor's right to go to court.’ ” Id. at 647, 99 S.Ct.
that parental consent statutes would not pass constitutional        3035 (quoting the district court). The Court continued, stating
muster unless the State provided an alternative procedure in        that every minor must have the opportunity to go to court
which a minor could receive authorization for an abortion.          without first notifying a parent:
See Bellotti v. Baird, 443 U.S. 622, 646–47, 99 S.Ct. 3035,
61 L.Ed.2d 797 (1979) (plurality opinion) (Bellotti II ). The         [M]any parents hold strong views on the subject of
Bellotti II plurality concluded that a minor must be permitted        abortion, and young pregnant minors, especially those
an opportunity to show “either: (1) that she is mature enough         living at home, are particularly vulnerable to their parents'
and well enough informed to make her abortion decision, in            efforts to obstruct both an abortion and their access to court.
consultation with her physician, independently of her parents'        It would be unrealistic, therefore, to assume that the mere
wishes; or (2) that even if she is not able to make this decision     existence of a legal right to seek relief in superior court
independently, the desired abortion would be in her best              provides an effective avenue of relief for some of those who
interests.” Id. at 643–44, 99 S.Ct. 3035. With regard to the          need it the most.
determination of maturity, Bellotti II stated that “the peculiar
nature of the abortion decision requires the opportunity for
case-by-case evaluations of the maturity of pregnant minors.”
                                                                                                  ***
Id. at 643 n. 23, 99 S.Ct. 3035. The Bellotti II plurality also
concluded that a parental bypass proceeding must maintain             [E]very minor must have the opportunity—if she so desires
the anonymity of the minor and must be completed with                 —to go directly to a court without first consulting or
“sufficient expedition to provide an effective opportunity for        notifying her parents. If she satisfies the court that she is
an abortion to be obtained.” Id. at 644, 99 S.Ct. 3035.               mature and well enough informed to make intelligently the
                                                                      abortion decision on her own, the court must authorize her
A majority of the United States Supreme Court has                     to act without parental consultation or consent.
subsequently approved the Bellotti II parental bypass                 Id. (plurality opinion) (emphasis added).
requirements. See City of Akron v. Akron Ctr. for Reprod.           Undoubtedly cognizant of these holdings and admonitions
Health, Inc., 462 U.S. 416, 439–42, 103 S.Ct. 2481, 76              of the United States Supreme Court, the Texas Legislature
L.Ed.2d 687 (1983) (Akron I ) (holding parental consent             enacted amendments to the Family Code that require parental
statute unconstitutional in light of Bellotti II ); Ohio v. Akron   notification before a minor may obtain an abortion, but
Ctr. for Reprod. Health, 497 U.S. 502, 510–13, 110 S.Ct.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
In re Doe, 19 S.W.3d 249 (2000)


the Legislature also included a bypass provision. See TEX.           The United States Supreme Court has made it clear that when
FAM.CODE §§ 33.002, 33.003. The bypass procedures                    a woman is making a decision about abortion, particularly
substantially track those set forth in Bellotti II. See id. §        when she is a minor, a state can require consideration of
33.003. A minor may apply to a court for an order authorizing        factors in addition to the physical risks of the procedure.
her to consent to an abortion without notification of a parent       Those include recognition that there are profound philosophic
or guardian. See id. The trial court may not authorize a             arguments surrounding abortion, consideration of the impact
minor to consent to an abortion unless it determines by a            that the procedure will have on the fetus, an understanding
preponderance of the evidence                                        that there may be an emotional and psychological impact
                                                                     following an abortion and later in life, and consideration of
             whether the minor is mature and                         how the decision to obtain an abortion may impact present
             sufficiently well informed to make the                  and future familial relationships.
             decision to have an abortion performed
             without notification to either of her                   With regard to the philosophic aspects of the abortion
             parents or a managing conservator or                    decision, a majority of the Court observed in Akron II that:
             guardian, whether notification would
             not be in the best interest of the minor,                           A free and enlightened society
             or whether notification may lead to                                 may decide that each of its
             physical, sexual, or emotional abuse of                             members should attain a clearer, more
             the minor.                                                          tolerant understanding of the profound
                                                                                 philosophic choices confronted by a
Id. § 33.003(i).                                                                 woman who is considering whether
                                                                                 to seek an abortion. Her decision will
                                                                                 embrace her own destiny and personal
                               II                                                dignity, and the origins of the other
                                                                                 human life that lie within the embryo.
The bypass procedure in section 33.003 does not mean,
however, that the Legislature intended for a minor to                Akron II, 497 U.S. at 520, 110 S.Ct. 2972.
proceed with an abortion based on a minimal showing.
The Legislature has required that the minor be mature                Other members of the Supreme Court again acknowledged
and sufficiently well informed to make the decision. In              the philosophic and social aspects of the abortion decision
determining what the Legislature meant by those terms, it            in Planned Parenthood v. Casey, 505 U.S. 833, 872, 112
again must be borne in mind that decisions of the United             S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).
States Supreme Court have dominated abortion law. There              They further acknowledged that when an adult woman is
is a substantial body of law from that Court regarding what          considering whether to have an abortion, a state may take
a state may and may not require to demonstrate a woman's             steps to ensure that the decision is thoughtful and informed:
informed consent to an abortion. That law should guide
                                                                       Though the woman has a right to choose to terminate or
interpretation of section 33.003.
                                                                       continue her pregnancy before viability, it does not at all
                                                                       follow that the State is prohibited from taking steps to
Given the context in which section 33.003 of the Family Code
                                                                       ensure that this choice is thoughtful and informed. Even
was enacted, I can only conclude that the Legislature intended
                                                                       in the earliest stages of pregnancy, the State may enact
to require minors to be informed about the decision to have
                                                                       rules and regulations designed to encourage her to know
an abortion to the full extent that the law, as interpreted by the
                                                                       that there are philosophic and social arguments of great
United States Supreme Court, will allow. Accordingly, I turn
                                                                       weight that can be brought to bear in favor of continuing
to what the United States Supreme Court has said regarding
                                                                       the pregnancy to full term and that there are procedures and
 *263 informed consent and what states may require.
                                                                       institutions to allow adoption of unwanted children as well
                                                                       as a certain degree of state assistance if the mother chooses
                                                                       to raise the child herself. “ ‘[T]he Constitution does not
                               III                                     forbid a State or city, pursuant to democratic processes,
                                                                       from expressing a preference for normal childbirth.’ ” It



                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          12
In re Doe, 19 S.W.3d 249 (2000)


  follows that States are free to enact laws to provide a           and psychological consequences of an abortion are serious
  reasonable framework for a woman to make a decision               and can be lasting; this is particularly so when the patient
  that has such profound and lasting meaning. This, too, we         is immature.’ ” Akron II, 497 U.S. at 519, 110 S.Ct. 2972
  find consistent with Roe 's central premises, and indeed the      (quoting H.L. v. Matheson, 450 U.S. 398, 411, 101 S.Ct. 1164,
  inevitable consequence of our holding that the State has an       67 L.Ed.2d 388 (1981)).
  interest in protecting the life of the unborn.

Id. at 872–73, 112 S.Ct. 2791 (citation omitted) (emphasis
added).                                                                                            IV

                                                                    Today, this Court refuses to acknowledge the foregoing body
In Casey, the Chief Justice, joined by three other Justices,
                                                                    of law or the likelihood that our Legislature relied on it when it
agreed with the plurality that the informed consent provisions
                                                                    said that a minor must be “sufficiently well informed to make
at issue did not unduly burden the abortion decision. See id.
                                                                    the decision to have an abortion.” The Court chooses to ignore
at 969, 112 S.Ct. 2791 (Rehnquist, C.J., concurring in the
                                                                    that the Legislature intended section 33.003 to encompass
judgment in part and dissenting in part). In the Chief Justice's
                                                                    factors other than physical risk to the pregnant minor and
separate opinion, the concurring Justices observed that a state
                                                                    alternatives to abortion. The Legislature did not intend for
“has an interest in preserving unborn life,” and that it may take
                                                                    the “mature and sufficiently well informed requirement” of
steps to ensure “that a woman's decision to abort is a well-
                                                                    section 33.003 to have as limited a focus as the Court ascribes
considered one, and reasonably furthers the State's legitimate
                                                                    to it. I would hold that a minor must demonstrate more.
interest in maternal health and in the unborn life of the fetus.”
Id. The Chief Justice's opinion further concluded that a 24–
                                                                    The Court properly requires a minor to consult a health-care
hour waiting period designed to give a woman time to reflect
                                                                    provider about the general risks of an abortion. But that is
on her decision “ ‘is surely a small cost to impose to ensure
                                                                    insufficient. There may be risks that are heightened for or
that the woman's decision is well considered in light of its
                                                                    unique to an individual. A minor cannot make a sufficiently
certain and irreparable consequences on fetal life, and the
                                                                    well-informed decision about an abortion if she does not
possible effects on her own.’ ” *264 Id. at 969–70, 112
                                                                    know the risks to her of that procedure. In this regard, the
S.Ct. 2791 (quoting Akron I, 462 U.S. at 474, 103 S.Ct. 2481
                                                                    Family Code expressly allows a pregnant, unmarried minor
(O'Connor, J., dissenting)).
                                                                    to consent to medical treatment by a physician, short of an
                                                                    abortion itself. See TEX. FAM.CODE § 32.003(a)(4).
Initially, the Supreme Court had struck down as
unconstitutional statutes that were fairly specific in their
                                                                    The Court recognizes that just as there are physical
requirements for informed consent to an abortion. See
                                                                    risks associated with an abortion, there are emotional and
Thornburgh v. American College of Obstetricians and
                                                                    psychological consequences, which can be significant for
Gynecologists, 476 U.S. 747, 759–65, 106 S.Ct. 2169, 90
                                                                    some women. But the Court's treatment of this aspect of the
L.Ed.2d 779 (1986); Akron I, 462 U.S. at 442–45, 103 S.Ct.
                                                                    abortion decision—one of the most important considerations
2481. However, in Casey, a majority of the Justices overruled
                                                                    —is superficial. I would require a minor to demonstrate that
Thornburgh and Akron I, at least in part. See Casey, 505 U.S.
                                                                    she has sought and obtained meaningful counseling from
at 881–87, 112 S.Ct. 2791 (plurality opinion); id. at 966–69,
                                                                    a qualified source about the emotional and psychological
112 S.Ct. 2791 (Rehnquist, C.J., concurring in the judgment
                                                                    impact she may experience now and later in her life as a result
in part and dissenting in part). Although the constitutional
                                                                    of having an abortion. She should be able to demonstrate to a
limits on what a state may require for informed consent are
                                                                    court that she understands that some women have experienced
not entirely clear after the Supreme Court's decision in Casey,
                                                                    severe remorse and regret. She should also indicate to the
it is clear that a state may require a “thoughtful and informed”
                                                                    court that she is aware of and has considered that there are
decision that encourages a woman to consider that there are
                                                                    philosophic, social, moral, and religious arguments that can
“philosophic and social arguments of great weight that can
                                                                    be brought to bear when considering abortion. See generally
be brought to bear.” Casey, 505 U.S. at 872, 112 S.Ct. 2791
                                                                    Casey, 505 U.S. at 872, 112 S.Ct. 2791 (plurality opinion). A
(plurality opinion); see also Akron II, 497 U.S. at 520, 110
                                                                    court cannot, of course, require a minor to adopt or adhere to
S.Ct. 2972. With regard to the emotional and psychological
                                                                    any particular philosophy or to profess any religious beliefs.
consequences of an abortion for a minor, a majority of the
                                                                    But requiring a minor to exhibit an awareness that there
Supreme Court in Akron II said: “ ‘The medical, emotional,


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In re Doe, 19 S.W.3d 249 (2000)


are issues, including religious ones, surrounding the abortion      minor should also have considered the impact that continuing
decision is not prohibited by the *265 Establishment Clause.        her pregnancy would or might have on these relationships.
Cf. Lemon v. Kurtzman, 403 U.S. 602, 612–13, 91 S.Ct. 2105,
29 L.Ed.2d 745 (1971) (holding that a statute must have a           While a minor must demonstrate a knowledge and
secular legislative purpose, that its principal or primary effect   appreciation of the various considerations involved in her
must be one that neither advances nor inhibits religion, and        decision, I agree with the Court that she should not be required
that it must not foster an excessive government entanglement        to obtain counseling or other services from a particular
with religion). The State's statutorily expressed interest in       provider. The internet should not, however, suffice. Nor
section 33.003 is to ensure a well-informed decision, which         should advice from laypersons who are not specifically
includes a mature understanding of all issues surrounding the       trained and experienced in counseling pregnant minors
decision to have an abortion.                                       suffice. The “State's interest is in ensuring that the woman's
                                                                    consent is informed and unpressured; the critical factor is
An informed appreciation of the emotional and psychological         whether she obtains the necessary information and counseling
aspects of terminating a pregnancy includes an understanding        from a qualified person, not the identity of the person from
of the impact the procedure will have on the fetus. As Justices     whom she obtains it.” Akron II, 497 U.S. at 518, 110 S.Ct.
O'Connor, Kennedy, and Souter observed in Casey, failure to         2972. I note, however, that a majority of the Supreme Court
obtain a full understanding of this aspect of the procedure can     has observed that “ ‘[i]t seems unlikely that [a minor] will
lead to “devastating psychological consequences” afterwards:        obtain adequate counsel and support from the attending
                                                                    physician at an abortion clinic, where abortions for pregnant
             Nor can it be doubted that most women                  minors frequently take place.’ ” H.L. v. Matheson, 450 U.S.
             considering a abortion would deem                      398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981) (quoting
             the impact on the fetus relevant, if                   Planned Parenthood v. Danforth, 428 U.S. 52, 91, 96 S.Ct.
             not dispositive, to the decision. In                   2831, 49 L.Ed.2d 788 (1976) (concurring opinion)). By the
             attempting to ensure that a woman                      same token, it seems unlikely that a minor would obtain all
             apprehend the full consequences of                     the information necessary for a well-informed decision about
             her decision, the State furthers the                   proceeding with an abortion, such as medical information,
             legitimate purpose of reducing the risk                solely from a religious organization or an advocacy group.
             that a woman may elect an abortion,
             only to discover later, with devastating
             psychological consequences, that her
             decision was not fully informed.                                                       V

Casey, 505 U.S. at 882, 112 S.Ct. 2791.                             I agree with the Court that Jane Doe has not established
                                                                    as a matter of law that *266 she is sufficiently well
In this same vein, these Justices explained, “[I]n order for        informed to make the decision to have an abortion performed
there to be informed consent to a kidney transplant operation       without notification of one of her parents. With regard to the
the recipient must be supplied with information about risks to      emotional and psychological consequences of an abortion,
the donor as well as risks to himself or herself.” Id. at 883,      Jane Doe testified that she understood that there “is some
112 S.Ct. 2791. No less should be required for an abortion.         emotional factor that can distress you and there is a slight
                                                                    risk of infection, not much.” When asked if she anticipated
The Court today gives a nod to the fact that a decision             seeking additional counseling if she were authorized by the
to have an abortion may impact relationships with family            Court to consent to an abortion, she said, “I haven't thought
members. I would require a minor to demonstrate that she            about it, but I think I do not need further counseling. I feel that
has thoughtfully considered the potential impact on her             my decision, and [sic] once it is followed through, would be
relationships with her parents and other family members if          fine. I am aware of it.” She also testified that she had talked
they learn now or sometime in the future that she has had           with an adult relative who had an abortion as a minor. That
an abortion. She should also exhibit some consideration of          relative told Jane Doe that she has not regretted her decision.
how this decision may impact her future relationships, such         Jane Doe had also talked to two of her friends who had
as those she may have with a husband or future children. A          become pregnant as minors and were raising their respective
                                                                    children. One was of college age and told Jane Doe that “she



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In re Doe, 19 S.W.3d 249 (2000)


really wishes that she hasn't [sic] had her child.” This friend   make the decision herself if she is “mature and sufficiently
is currently unable to attend college or to support herself and   well informed”. But, explains the Court, all that really
her child, and she intends to move back in with her parents.      means is that a minor must know something of the health
Jane Doe's other friend is fifteen and has married the father     risks of the abortion procedure (which is not too hard,
of her child. Jane Doe perceives that they are having “a very      *267 since for most women the physical risks are easily
hard life,” and her friend told her that “they wish they could    assessed), the alternatives to abortion (although she need not
take it back.” Jane Doe also talked to a friend who has had an    explain her choice among them), and, from “reliable and
abortion. That friend told her that her own decision to have      informed sources”, 3 whatever that means, the emotional and
an abortion was “a good thing” and that she does not regret it.   psychological aspects of having an abortion. To think that a
                                                                  minor should choose abortion based merely on such antiseptic
The fact that Jane Doe has sought advice from friends and         considerations trivializes the decision. As the Court reads the
family indicates that she is seeking information as a mature      statute, no one need counsel a minor, as her parents should
person would do. Minors in Jane Doe's position should             if they were told of her situation, that the family, social,
not be discouraged from asking for counsel and support            moral, and religious aspects of her decision may radically
from people who know and care about them. But talking to          affect her life, her family, and her future. Of such things—the
friends and family and obtaining anecdotal information is not     really important part of the calculus of the abortion decision
equivalent to receiving in-depth counseling and information       —a minor can be largely unappreciative and still be, in the
from sources qualified by training and experience. She            Court's view, well informed. She need not have the benefit of
expressed no appreciation that many women experience              differing viewpoints; she may obtain all her information from
emotional and psychological problems as a consequence of          abortion proponents. “Well informed”, for the Court, means
their decision or why that is so.                                 only that a minor has thought about what she knows, not that
                                                                  she knows what to think about.
With regard to alternatives to abortion, Jane Doe exhibited
only the most superficial consideration. Finally, she did not     The Court does not base its statutory interpretation of
demonstrate that she has considered the impact a decision to      “mature” and “well informed” on the ordinary meanings of
have an abortion might have on her relationships with her         those words, or on the purposes the Legislature intended
parents or others or her future relationships.                    them to achieve, or on the United States Supreme Court
                                                                  cases from which they were undoubtedly drawn, but on its
Because Jane Doe's proof was deficient, the trial court did       own predilections. Other states' laws cited by the Court vary
not err in denying her application. I agree with the Court,       widely, some specifying the information a woman must be
however, that because no court has ever construed section         given, others prescribing only a general standard, and none
33.003, this matter should be remanded in the interest of         shedding more than a faint light on the proper construction of
justice.                                                          Texas' statute. The result of today's decision is that it is not
                                                                  much harder now for a minor to obtain an abortion without
Accordingly, I join only in parts I, II, and III of the Court's   telling her parents than it was before the Parental Notification
opinion, and I join the judgment.                                 Act was passed. Mostly, the Legislature has wasted a lot of
                                                                  time and energy. Before the statute a minor needed a willing
                                                                  clinic; now she just needs a lawyer, whose fees will be paid
Justice HECHT, joined by Justice ABBOTT, dissenting.
                                                                  by the State.
The Court today deals a heavy blow to parents' fundamental,
constitutional rights to raise their children, rights the
                                                                  The essential intent of the Parental Notification Act, as I read
Legislature had absolutely every intention of protecting by
                                                                  it, is that if the State is going to cut off a parent's right to advise
passing the Parental Notification Act in 1999. 1 Described by     a minor about her pregnancy, and to authorize the minor to
one of its sponsors, Senator Florence Shapiro, as a “parental     choose abortion without the benefit of parental involvement,
rights bill”, the Act was plainly meant to encourage minors       then the State must ensure that the minor has had the same
to seek their parents' advice and counsel in making what          kind of assistance in making her decision that a parent should
the United States Supreme Court has sympathetically called        provide. The last thing the State should want to hear is a
the “grave and indelible” 2 decision whether to have an           minor's belated cry: “Why didn't someone tell me?” It is
abortion. The Act permits a judge to authorize a minor to



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In re Doe, 19 S.W.3d 249 (2000)


precisely that kind of assistance that the Legislature intended
to ensure but the Court ignores.                                      Q Did the information that you examined include
                                                                      information about medical risks associated with abortion?
Because I believe the Court's construction of the Act conflicts
                                                                      A Well, there is a slim chance of death, a very, very rare.
with its language, purposes, and sources, I dissent.
                                                                      It is a pretty safe procedure, safer than actually having a
                                                                      child. There is some emotional factor that can distress you
                                                                      and there is a slight risk of infection, not much. It is a pretty
                               I                                      safe procedure.

Jane Doe will be eighteen years old in a few months. She is a         Q Did you also attempt to find any information on
high school senior with a high-“B” or low-“A” grade average,          alternatives to abortion?
is involved in some extracurricular activities, and has a part-
time job. She has never been married and lives at home with           A Yes, I looked at other information such as adoption and
both her parents. She has a boy friend, a recent high school          actually having the child.
graduate, who is attending college. Doe and her boy friend
                                                                      Q And what information did you look at, what information
have been, in her words, “sexually active”, and Doe thinks
                                                                      did you evaluate in deciding to get an abortion as opposed
her mother is aware of that fact, although they do not discuss
                                                                      to pursuing one of those other options?
it. Doe is not sure whether her father is aware that she has
had sex.                                                              A Well, I just thought about my options and what would be
                                                                      best for me and actually the child and abortion in the long
Doe has used birth control pills for years, but about ten             run I see as being most positive and best one there is.
weeks ago she discovered she was pregnant. About a month
ago she went to a Planned Parenthood office where she                 Q Could you explain to the Court why you made that
received some information about abortion and, in her words,           decision?
“partial counseling”. A week later she applied to the trial court
                                                                      A Well, for me I feel if I were to have the child, my parents,
for authorization to have an abortion without notifying her
                                                                      they would be slightly upset to actually know that I became
parents.
                                                                      pregnant and they are very against abortion. So, first of
                                                                      all, they wouldn't even give me that chance to have an
At the hearing, Doe was asked what kind of information she
                                                                      abortion. And I am planning after I graduate this year to go
had obtained and how she had made her decision. Her entire
                                                                      off [from home] to college. And I would like to pursue my
testimony on this subject is as follows:
                                                                      own career. And I feel if I had the child I couldn't do any
   *268 Q And what kind of information did you look at to             of that now and be a major setback. And I don't favor the
  evaluate your options?                                              adoption. I know it could be done, but if I were to go nine
                                                                      months having this child, I would feel to keep it. But that
  A I got information on abortion and that procedure and              is—I already decided that would be, would be holding me
  what goes on with it and process of adoption and what               back from my future, what I want to become. So, I decided
  it would actually be to have the child and I looked them            abortion would be overall the best solution.
  over and I decided the abortion would be the best for me
  personally.                                                       Doe has not consulted a physician. She testified that she had
                                                                    talked with a close relative who had had an abortion when
  Q Briefly describe for the Court, I mean briefly, your
                                                                    she was 17. Doe's entire account of the conversation was
  understanding of what the abortion procedure entails.
                                                                    that “she told me how she felt about it and what went on.”
  A Okay. Well, I know I would have to get up and go to             Doe's guardian told the trial court that Doe's conversations
  Planned Parenthood early and take a slight sedative, so           with her relative “were pretty limited in terms of having the
  be less painful, and they would flush it out and suck out,        real advice”. Doe also testified that she had spoken with three
  remove it, and I would have to go out—to go back in a             friends. One, a high school graduate, had a child and could not
  month to a checkup, make sure there is no infection, no           go to college but had to move in with her parents. Another,
  hemorrhaging, and that's pretty much how they remove it.          age 15, was, in Doe's words, “trying to go to school and have



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               16
In re Doe, 19 S.W.3d 249 (2000)


her baby, you know,” and her parents had forced her to marry.
In Doe's words: “[T]hey both have a very hard life right now              A Well, when my [relative] had her abortion ... my mom
and they say they wish they could take it back.” A third had              felt very strongly since then that it is something that
had an abortion and felt strongly that it was, according to Doe,          she doesn't believe in, something that she doesn't want
“a good thing that she had it done so she can look into the               anyone else in the family to have done. She feels that
future and say she's glad she had this done”. Doe did not talk            the child would be a part of her and she would not give
with anyone else about her decision. No one she spoke with                me that option. She's told me before that is not a thing
expressed any reservations about her having an abortion or                that she does believe in. She doesn't want her daughter to
about abortion in general.                                                go through that. It would be wrong. So, she just strongly
                                                                          disagrees with it.
Doe's guardian asked her to get counseling at a crisis
pregnancy center, and she *269 made an appointment to                                              ***
do so, but she was unable to locate the office. She testified
that she “did further research over the internet, different sites,     Q And can you tell me if there is any reason that you
different places, for how they feel about it, you know, what           wouldn't want to have your mother there when you wake
their procedures were about. So, I looked up on my own.” Doe           up [from the sedative after the abortion procedure]?
did not give further specifics about her internet research. Doe
                                                                          A She wouldn't let me do it. I know for a fact she
has not spoken with a member of the clergy. Asked whether
she thought she needed any further counseling on the abortion             wouldn't. She is very against this and she would be
                                                                          disappointed in me. She wouldn't be there to support
procedure or alternatives to it, she said: “I haven't thought
                                                                          me with it. I know she wouldn't go along with it. She
about it, but I do not think I need further counseling. I feel
                                                                          wouldn't be there in the first place. She totally detests the
that my decision, and once it is followed through, would be
                                                                          fact of people that actually do that.
fine. I am aware of it.”
                                                                     Having heard this evidence, and after argument by the
                                                                     guardian and by Doe's attorney, the trial court made the
Asked why she did not want to involve her parents in her
                                                                     following findings:
decision, Doe testified as follows:
                                                                       5. The applicant has not shown by a preponderance of
  Q Could you briefly describe for the Court, you have talked
                                                                       the evidence that: Applicant is mature and sufficiently
  a little bit, but maybe a little bit more information, as to
                                                                       well informed to make the decision to have an abortion
  why it is you don't believe you can tell your parents about
                                                                       without notification to either of her parents, her managing
  your decision to have an abortion?
                                                                       conservator, or guardian.
  A Okay. Both of my parents are active members at our
                                                                       6. The court finds that although applicant shows sign
  church.... And they strongly believe that it's not a wise thing
                                                                       of being mature, she has not demonstrated that she is
  to do. It is something they do not believe in. They much
                                                                       sufficiently well informed about the medical procedures
  rather me have a child. And they wouldn't even give me the
                                                                       and the emotional impact of the procedure.
  opportunity to have this done. They have it set in their mind
  what would go on. It is something they strongly disapprove
                                                                       7. The applicant has not shown by a preponderance of the
  of.                                                                  evidence that: Notifying either of the applicant's parents,
                                                                       managing conservator or guardian would not be in her best
                                                                       interest.
                              ***

  Q You say that your parents, you seem pretty sure that they
  would not be in favor of abortion. Have you ... had some                                          II
  general discussion with them about how they would feel             Texas' Parental Notification Act was enacted in the context
  if someone in their family got an abortion, or what is your        of a developing body *270 of federal constitutional law that
  basis for that?                                                    attempts to determine the extent of a woman's right to choose
                                                                     abortion and the kinds of limitations that can be placed on it.



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In re Doe, 19 S.W.3d 249 (2000)


Understanding this context is necessary to construe and apply          institutions to allow adoption of unwanted children as well
the Texas statute.                                                     as a certain degree of state assistance if the mother chooses
                                                                       to raise the child herself. “ ‘[T]he Constitution does not
A woman's right to choose abortion that the United States              forbid a State or city, pursuant to democratic processes,
Supreme Court has recognized is not absolute. 4 The Supreme            from expressing a preference for normal childbirth.’ ” It
Court explained in Planned Parenthood v. Casey:                        follows that States are free to enact laws to provide a
                                                                       reasonable framework for a woman to make a decision that
                                                                       has such profound and lasting meaning.
  At the heart of liberty is the right to define one's own
  concept of existence, of meaning, of the universe, and of
  the mystery of human life....
                                                                                                  ***
     These considerations begin our analysis of the woman's
                                                                       What is at stake is the woman's right to make the ultimate
     interest in terminating her pregnancy but cannot end
                                                                       decision, not a right to be insulated from all others in doing
     it, for this reason: though the abortion decision may
                                                                       so. Regulations which do no more than create a structural
     originate within the zone of conscience and belief, it is
                                                                       mechanism by which the State, or the parent or guardian of
     more than a philosophic exercise. Abortion is a unique
                                                                       a minor, may express profound respect for the life of the
     act. It is an act fraught with consequences for others:
                                                                       unborn are permitted, if they are not a substantial obstacle
     for the woman who must live with the implications of
                                                                       to the woman's exercise of the right to choose.
     her decision; for the persons who perform and assist in
     the procedure; for the spouse, family, and society which
     must confront the knowledge that these procedures                                         *271 * * *
     exist, procedures some deem nothing short of an act of
     violence against innocent human life; and, depending on           It cannot be questioned that psychological well-being is a
                                                                       facet of health. Nor can it be doubted that most women
    one's beliefs, for the life or potential life that is aborted. 5
                                                                       considering an abortion would deem the impact on the fetus
When the woman is a minor, her right is subject to two
                                                                       relevant, if not dispositive, to the decision. In attempting
important limitations: the State's interest in protecting the
                                                                       to ensure that a woman apprehend the full consequences
welfare of all its citizens and the life of the unborn, 6 and the      of her decision, the State furthers the legitimate purpose
interest of parents and families in living their lives free from       of reducing the risk that a woman may elect an abortion,
undue state interference. 7 I examine each of these limitations        only to discover later, with devastating psychological
in turn.                                                               consequences, that her decision was not fully informed. If
                                                                       the information the State requires to be made available to
                                                                       the woman is truthful and not misleading, the requirement
                                                                       may be permissible.
                                A

The State has a legitimate interest in protecting its citizens'                                   ***
welfare, and it may constitutionally favor normal childbirth
and encourage a woman to make that choice. In Casey, the               [W]e permit a State to further its legitimate goal of
Supreme Court explained:                                               protecting the life of the unborn by enacting legislation
                                                                       aimed at ensuring a decision that is mature and informed,
  Though the woman has a right to choose to terminate or               even when in so doing the State expresses a preference for
  continue her pregnancy before viability, it does not at all          childbirth over abortion. In short, requiring that the woman
  follow that the State is prohibited from taking steps to             be informed of the availability of information relating to
  ensure that this choice is thoughtful and informed. Even             fetal development and the assistance available should she
  in the earliest stages of pregnancy, the State may enact             decide to carry the pregnancy to full term is a reasonable
  rules and regulations designed to encourage her to know              measure to ensure an informed choice, one which might
  that there are philosophic and social arguments of great
                                                                       cause the woman to choose childbirth over abortion. 8
  weight that can be brought to bear in favor of continuing
  the pregnancy to full term and that there are procedures and



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In re Doe, 19 S.W.3d 249 (2000)


To sum up, the Supreme Court stated: “[t]he woman's liberty           interests are subject to constitutional protection. The Supreme
[to choose abortion] is not so unlimited ... that from the            Court has stated:
outset the State cannot show its concern for the life of the
unborn....” 9 “Only where state regulation imposes an undue
                                                                        [T]he demonstration of commitment to the child through
burden on a woman's ability to make this decision does the
                                                                        the assumption of personal, financial, or custodial
power of the State reach into the heart of the liberty protected
                                                                        responsibility *272 may give the natural parent a stake in
by the Due Process Clause.” 10                                          the relationship with the child rising to the level of a liberty
                                                                        interest.
The State's interest is particularly acute when the woman is a
minor. The Supreme Court
                                                                                                   ***
             has held that the States validly may
             limit the freedom of children to                           [T]he family has a privacy interest in the upbringing and
             choose for themselves in the making                        education of children and the intimacies of the marital
             of important, affirmative choices                          relationship which is protected by the Constitution against
             with potentially serious consequences.                     undue state interference. 14
             These rulings have been grounded                         This Court has also recognized the constitutional rights of
             in the recognition that, during the                      parents in the relationship with their children. 15
             formative years of childhood and
             adolescence, minors often lack the                       Specifically with respect to parental involvement in a minor's
             experience, perspective, and judgment                    decision whether to have an abortion, the Supreme Court has
             to recognize and avoid choices that                      explained:
             could be detrimental to them. 11
                                                                        [T]he guiding role of parents in the upbringing of their
                                                                        children justifies limitations on the freedoms of minors....
Among those choices, the Supreme Court has insisted, is
                                                                        “The child is not the mere creature of the State; those
abortion:
                                                                        who nurture him and direct his destiny have the right,
             The State has a strong and legitimate                      coupled with the high duty, to recognize and prepare him
             interest in the welfare of its                             for additional obligations.” “The duty to prepare the child
             young citizens, whose immaturity,                          for ‘additional obligations' ... must be read to include
             inexperience, and lack of judgment                         the inculcation of moral standards, religious beliefs, and
             may sometimes impair their ability                         elements of good citizenship.” This affirmative process of
             to exercise their rights wisely. That                      teaching, guiding, and inspiring by precept and example
             interest, which justifies state-imposed                    is essential to the growth of young people into mature,
             requirements that a minor obtain his or                    socially responsible citizens.
             her parent's consent before undergoing
                                                                        We have believed in this country that this process, in large
             an operation, marrying, or entering
                                                                        part, is beyond the competence of impersonal political
             military service, extends also to the
                                                                        institutions. Indeed, affirmative sponsorship of particular
             minor's decision to terminate her
                                                                        ethical, religious, or political beliefs is something we
             pregnancy. 12                                              expect the State not to attempt in a society constitutionally
                                                                        committed to the ideal of individual liberty and freedom
                                                                        of choice. Thus, “[i]t is cardinal with us that the custody,
                                                                        care and nurture of the child reside first in the parents,
                                B
                                                                        whose primary function and freedom include preparation
A minor's right to choose to have an abortion can be restricted         for obligations the state can neither supply nor hinder.”
not only by the State's interest in her welfare but by the interest
of her parents and the interest of the family unit. 13 These




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In re Doe, 19 S.W.3d 249 (2000)


                                                                 its abundant history repeatedly emphasizes, to encourage
                                                                 parental participation in a minor's decision to have an
                            ***
                                                                 abortion, to discourage abortion generally, and to discourage
  [T]he parental role implies a substantial measure of           teen pregnancy with the warning that an abortion without
  authority over one's children. Indeed, “constitutional         parental involvement would not be readily available. The
  interpretation has consistently recognized that the parents'   Act prohibits a physician, with certain exceptions, from
  claim to authority in their own household to direct the        performing an abortion on an unemancipated minor without
  rearing of their children is basic in the structure of our     giving a parent, managing conservator, or guardian at least 48
  society.”                                                      hours' actual notice. 18 One exception to this prohibition is
                                                                 that a court may grant a minor's application to consent to an
    Properly understood, then, the tradition of parental         abortion without the prescribed notice if the court determines,
    authority is not inconsistent with our tradition of          by a preponderance of the evidence, that either (1) “the minor
    individual liberty; rather, the former is one of the         is mature and sufficiently well informed to make the decision
    basic presuppositions of the latter. Legal restrictions on   to have an abortion performed without notification to either
    minors, especially those supportive of the parental role,    of her parents or a managing conservator or guardian,” (2)
    may be important to the child's chances for the full         “notification would not be in the best interest of the minor,”
    growth and maturity that make eventual participation         or (3) “notification may lead to physical, sexual, or emotional
    in a free society meaningful and rewarding. Under
                                                                 abuse of the minor.” 19 As I have already noted, petitioner
    the Constitution, the State can “properly conclude that
                                                                 bases her application on the first two of these grounds. I
    parents and others, teachers for example, who have
                                                                 consider each ground separately.
    [the] primary responsibility for children's well-being are
    entitled to the support of laws designed to aid discharge
    of that responsibility.”
                                                                                               A
                            ***                                  The Legislature has not defined the phrase “mature and
                                                                 sufficiently well informed” in section 33.033(i). Accordingly,
  [P]arental notice and consent are qualifications that
  typically may be imposed by the State on a minor's right       we are obliged to give the words their ordinary meaning, 20
  to make important decisions. As immature minors often          a requirement acknowledged by the Court and then wholly
  lack the ability to make fully informed choices that take      ignored.
  account of both immediate and long-range consequences, a
  State reasonably may determine that parental consultation      According to the Oxford English Dictionary, the word
  often is desirable and in the best interest of the minor. It   “mature”, used in describing a person, means “having the
  may further determine, as a general proposition, that such     powers of body and mind fully developed.” With reference
  consultation *273 is particularly desirable with respect       to thought and deliberation, the word means “duly prolonged
  to the abortion decision—one that for some people raises       and careful.” And as applied to “plans, conclusions, etc.,”
                                                                 the word means “formed after adequate deliberation.” The
  profound moral and religious concerns. 16
                                                                 Oxford English Dictionary defines the word “well-informed”
The Supreme Court has held that a parent cannot have
                                                                 as: “Well equipped with information; fully furnished with
an absolute and arbitrary veto over a child's choice of an
                                                                 knowledge, whether of a special subject or of things in
abortion. 17 But by the same token, a parent's right to be       general; having a well-stored mind.” Thus defined, the
involved in a child's decisions cannot be abrogated without      statutory phrase, “mature and sufficiently well informed”,
sufficient reason.                                               refers to the basis for a decision—full information and
                                                                 knowledge of the subject—as well as the manner in which it
                                                                 is made—as by a person of ample years and experience.
                             III
                                                                 A decision cannot be well informed if the person making it
In the context of this developing federal constitutional         does not have a full knowledge of the relevant considerations.
law, Texas' Parental Notification Act was passed, as             In the present context, this does not mean that a minor



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In re Doe, 19 S.W.3d 249 (2000)


must know all there is to know about abortion as a medical        States Supreme Court has observed, “It seems unlikely that
procedure or the alternatives to it and the factors involved      [a woman] will obtain adequate counsel and support from the
in a choice. Some of the relevant factors are not hard to         attending physician at an abortion clinic, where abortions for
assess, such as the health risks of the procedure to the woman.   pregnant minors frequently take place.” 23 The landscape is
But many of the relevant factors involve more unknowns:           not revealed in any single setting.
the consequences to the fetus, the risks of psychological
and emotional problems, the woman's ability to mother the         Whether a minor is well informed is more of an objective
child if it is born, *274 the availability of alternatives        determination than whether she is mature. As noted above, the
including adoption, the availability of financial assistance if   latter quality is an ability to act as an experienced adult would.
the child is carried to term, the impact of the decision on       The United States Supreme Court has observed that “the fact
the woman's present and future family, and the “philosophic       that a minor may be very much an adult in some respects
and social” 21 —including religious—concerns that favor           does not mean that his or her need and opportunity for growth
continuing the pregnancy to term. Mastery of these issues         under parental guidance and discipline have ended.” 24 The
is not necessary for a person to be well-informed, but an         Court fails to take this obvious fact into account. Maturity is
appreciation of them is. A minor worried about the financial      not so much a matter of what a person knows as it is of how
burdens of parenthood, for example, should know what              she thinks and acts. A trial judge who can watch a minor's
support is available to her; that information could affect her    demeanor and hear the inflections in her voice is in a far better
decision. While people disagree about the more subjective         position to determine her maturity than an appellate judge
factors, a minor should nevertheless have some awareness          confined to the typed transcript of her testimony.
of the issues in the disagreement in making her decision.
As the United States Supreme Court has observed, the State        From the meanings of the words themselves and the purposes
has a legitimate purpose in “reducing the risk that a woman       of the Parental *275 Notification Act, informed by the
may elect an abortion, only to discover later, with devastating   United States Supreme Court's reference to the same ideas
psychological consequences, that her decision was not fully       in numerous opinions, I conclude that by “mature and
informed.” 22                                                     sufficiently well informed” the Legislature means a minor
                                                                  who has obtained for herself the kind of complete and
The abortion decision does not turn merely, or mostly, on         balanced information relevant to her decision and evaluate it
simple facts, such as that in most instances abortion is a        as a person who no longer needed parental guidance on so
very safe medical procedure. The risks in a particular case       grave a matter. For reasons that I am about to explain, the
may be greater and may determine the decision, but that is        Court reads the statutory standard to mean something far less.
not true in most situations. Far more important are concerns
about the family, social, psychological, emotional, moral, and
religious implications of the abortion decision. Ordinarily,
                                                                                                  B
some of these issues are none of the State's business. A
person's religious views, for example, are entirely a private     Although petitioner in this case has not focused her arguments
and individual matter. But minors who have not yet thought        on appeal on the alternative ground on which she based her
seriously about such matters should be aware that their views     application—that notifying her parents of her intent to have
may someday change. It is critical that a minor appreciate that   an abortion would not be in her best interest—I address that
decisions made today can have consequences decades into the       ground briefly.
future. The essential approach taken by the Legislature in the
Parental Notification Act is that if a minor is to be allowed     In essence, petitioner does not want to notify her parents
to choose abortion without the guidance parents should            because she fears they will not approve. This concern,
give a child in such circumstances, then she must have an         standing alone, should not justify excluding her parents
appreciation of that guidance from somewhere else. Because        from her decision, as the trial court found. For one thing,
there is deep disagreement over the subjective elements of a      petitioner may have judged wrongly. But assuming her fears
choice of abortion, a minor should be aware of and appreciate     are well founded, petitioner must choose between parental
the differing views. She is free to credit some and discount      disapproval and the burden of knowing that she has kept
others, of course, but she ought not to make a decision without   something very important from them. The latter does not
knowing what others believe to be at stake. As the United         simply trump the former. A minor's concealment from her


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In re Doe, 19 S.W.3d 249 (2000)


parents of so profound a decision, like the decision itself, may     minor that she has thought long and hard about her decision.
have lifelong, and unforeseen, consequences. The trial judge         But in fact, a minor is not well informed merely because she
must ensure that the minor appreciates those consequences            knows that she can carry her pregnancy to term and then either
and must attempt to determine whether it would not be in             keep the child or offer it for adoption. She should have an
a minor's interest to attempt to involve her parents in her          appreciation of what her options entail.
decision despite their disappointment and disapproval.
                                                                     The Court's third requirement is that a minor should have
                                                                     received information “from reliable and informed sources”
                                                                     concerning the “emotional and psychological aspects of
                               IV
                                                                     undergoing an abortion”. 28 Just who such sources might be
The Court's opinion minimizes what a minor must prove to             the Court does not say, but nothing prohibits them from all
show that she is “mature and sufficiently well informed” to          being promoters of abortion. A minor is not well informed
choose abortion without involving her parents. This is not           simply because she has heard one side of a matter.
immediately apparent from all its language. For instance, at
one point the Court states that a minor must demonstrate             The Court acts as if these three requirements are significant,
that her decision “is based upon careful consideration of the        but they plainly are not. Any competent attorney representing
various options available to her and the benefits, risks, and        a minor in a case like this can easily script testimony that
consequences of those options.” 25 But this broad statement          will meet all three requirements. All a minor need tell the
is belied by the specific requirements set out in Part V. There      trial court is: that she has consulted with a clinician who told
are only three, and while they are what the Court would              her that abortion presented insignificant physical risks to her,
                                                                     that some people regret having an abortion but not very often,
require “at a minimum”, 26 they are nevertheless sufficient as
                                                                     and that she could always have the child and keep it or put
a matter of law for a minor to obtain judicial authorization for
                                                                     it up for adoption; and that she carefully considered all the
an abortion.
                                                                     clinician said. Once the minor has covered these bases, she is
                                                                     entitled to an order authorizing her to consent to an abortion.
This point is crucial: as the Court reads the statute, once a
                                                                     A trial court that is convinced that a minor is not entitled to
minor has proved what she must by a preponderance of the
                                                                     an abortion without parental notification must therefore base
evidence, then she is entitled as a matter of law to an abortion
                                                                     the decision on the minor's overall credibility and evidence of
without parental notification. The trial court has no discretion
                                                                     her immaturity that cannot be fully reflected in the appellate
in the matter. Thus, if a minor offers evidence to satisfy the
                                                                     record.
Court's three requirements, her application must be granted.
This standard is, of course, foreign to the language, intent, and
                                                                     The Court refuses even to acknowledge that a minor's
purposes of the Act.
                                                                     decision can profoundly affect her future and present family
                                                                     relationships. In the Court's mind, the most significant issues
The Court's first requirement is that a minor must obtain
                                                                     involved in the abortion decision do not even exist. According
information about the health risks of the procedure. While
                                                                     to the Court, a minor is well informed if she knows a little
such information is certainly essential to the minor's decision,
                                                                     about a few things which may matter and nothing about the
it will not be significant in most instances. Abortion is, for
                                                                     very profound consequences of her decision.
the most part, a physically safe procedure. There are instances
when this is not true, and a minor should be advised of the
                                                                     The Court completely ignores the fundamental, constitutional
risks to her, but in most instances it will not be difficult for a
                                                                     rights of petitioner's parents which must, as the United
minor to meet this requirement.
                                                                     States Supreme Court has stated, 29 be balanced against
The Court's second requirement is that a minor should                petitioner's right to choose an abortion. The Legislature's
“have an understanding of the alternatives to abortion               express intent in passing the Parental Notification Act was to
and their implications” and have given them “thoughtful              protect parents' rights to provide children guidance in making
consideration”, although she need not “justify why she prefers       difficult decisions. In essence, the Court holds that minors can
                                                                     get by without the help.
abortion above *276 other options”. 27 In the Court's view,
thisrequirement can be satisfied by a simple declaration by the



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In re Doe, 19 S.W.3d 249 (2000)



                                V
                                                                                                    VI
I have set out above in complete detail petitioner's testimony,
omitting only those facts that tend to identify her. It is fair to   I agree with the conclusion in Part II of the Court's opinion
say that she based her decision to have an abortion on what          that this Court must publicly explain its decisions, even in
she called “partial counseling” one Saturday at a Planned            cases like this one in which there is a special need for
Parenthood clinic; the unsurprising encouragement of her 19–         confidentiality. 30 Neither our duty to the rule of law, nor our
year–old boy friend, who is the father of the child and now          constitutional role in the government, nor our obligations to
wants no part of the responsibility; a brief conversation with       the people whose government it is, permit this Court to rule
a relative who had an abortion when she was petitioner's age;        in secret. It may well be that the lower courts' rulings in cases
conversations with three teenage friends, one of whom was            like this cannot be secret either, but petitioner has not raised
glad she had had an abortion, and two of whom, one age               the issue, and no one else can raise it in this case, since no
15, said they wished they had; and unspecified information           one besides her attorney and guardian will have known before
obtained on the internet. I agree with the Court that this does      today that the case was before us. So the issue must be left
not prove as a matter of law that petitioner is mature and
                                                                     for another day. 31
sufficiently well informed to have an abortion without telling
her parents.
                                                                     I also agree with the conclusion in Part III of the Court's
                                                                     opinion that the trial court's decision in this case should
Incredibly, the Court never hints at the specific deficiency
                                                                     be affirmed on appeal if it finds sufficient support in the
in petitioner's proof. In this “matter of first impression” the
Court hides any reasoning it has. Why has petitioner's proof         evidence. 32 Because our jurisdiction to review evidentiary
failed? What was missing? *277 How much more, or how                 sufficiency is limited, we must affirm the trial court's decision
little, was required? Ordinarily, the Court would answer these       if there is any evidence to support it. We can reverse only
questions, would apply its construction of the statute to the        if petitioner demonstrates that she has proven her right to
facts of the case and explain the consequences. But the              an abortion without parental involvement as a matter of
JUSTICES in the majority cannot agree on enough issues,              law, which I agree she has not done, for the reasons I have
even after days of compromise among themselves, to come              explained and the Court has not.
up with a single ecumenical justification for their result. The
Court says that it writes to give the lower courts guidance,
and then in Part VII of its opinion, on the issue dispositive                                    *****
of the case, offers no explanation. None, except “Sorry, you
lose, try again.” To undertake an opinion in this case and then      The people of Texas, like the American people, are deeply
give no explanation for the result is a blatant abnegation of the    divided over abortion. That division will almost certainly
Court's responsibility to the lower courts and the petitioner,       affect the present and future life of every minor who has
and an affront to the Legislature.                                   an abortion. If the Legislature's mandate that a minor be
                                                                     well informed before choosing abortion without involving her
I would hold that the trial court's decision to deny petitioner's    parents does not mean that she be given the same guidance
application was based on some evidence, and I would deny             a child should have from her parents, then it offers her
her appeal. I do not agree that she should simply have a second      little protection. If the Legislature's mandate means that
try, especially since she will have no trouble improving her         parents can be deprived of their fundamental right to guide
case. While the court's decision should be given res judicata        their child's decisions when she has no more appreciation
effect, it would not bar petitioner from reapplying if her           of her circumstances than the Court requires, then the
circumstances changed materially.                                    statute is almost meaningless. I would not deny the Parental
                                                                     Notification Act its intended purposes. I dissent.



Footnotes
1       Justice Enoch's concurrence argues that the proper standard of review is abuse of discretion. Much of his argument is based on
        the premise that the facts will be undisputed. Although the hearing is unopposed, the testimony presented by the minor may be



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In re Doe, 19 S.W.3d 249 (2000)


       inconsistent, either on direct or after the trial court has posed questions. Therefore, rather than simply applying the law to undisputed
       facts, the trial court must weigh all the evidence before it, including demeanor and credibility, to determine if the minor, by a
       preponderance of the evidence, has demonstrated that she is mature and sufficiently well informed.
2      See ARK.CODE ANN. § 20–16–804(1)(A)(Michie 1999); COLO.REV.STAT. ANN . § 12–37.5–107(2)(a)(1999); FLA. STAT.
       §§ 390.01115(3)(a) & (4)(c)(1999); GA.CODE ANN. § 15–11–114(c)(1999); 750 ILL. COMP. STAT.. 70/25–25(d) (West 1999);
       KAN. STAT. ANN.. §§ 65–6705(a) & (d) (1998); MD.CODE ANN., HEALTH §§ 20–103(a) & (c) (1991); MINN.STAT. §
       144.343(6) (1998); MONT.CODE ANN. §§ 50–20–212(4) & (5) (1999); NEB.REV.STAT. § 71–6903(1) (1999); NEV.REV.STAT.
       § 442.255(2) (1997); N.J. STAT. ANN.. § 9:17A–1.7(d) (West 1999); OHIO REV.CODE ANN. §§ 2151.85(A)(4) & (C)(1) (Banks–
       Baldwin 1999); S.D. CODIFIED LAWS §§ 34–23A–7(3) & 34–23A–7.1 (Michie 1999); VA.CODE ANN. § 16.1–241(V) (Michie
       1999); W. VA.CODE § 16–2F–4(f) (1999); WYO. STAT. ANN. § 35–6–118(b)(v)(B) (Michie 1999).
3      Although Texas Parental Notification Rule 3.3(b) does not allow a court of appeals to remand, the rules are silent regarding this
       Court. Consequently, we are not prohibited from remanding.
1      TEX. FAM.CODE § 33.003(i).
2      Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).
3      See, e.g., Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985).
4      See TEX. FAM.CODE § 33.003(k).
5      In the Matter of the Petition of Jane Doe, 19 Kan.App.2d 204, 866 P.2d 1069, 1074 (1994).
6      See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Green v. Remling, 608 S.W.2d 905, 908 (Tex.1980).
7      Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).
8      See TEX.R.APP. P. 60.3.
9      See TEX. FAM.CODE § 33.004(b).
10     See TEX. PARENTAL NOTIFICATION RULES & FORMS 3.3(b).
11     See id. (“The court of appeals ... must issue a judgment affirming or reversing the trial court's order denying the application. If the
       court of appeals reverses the trial court order, it must also state in its judgment that the application is granted.”).
1      TEX. FAM.CODE §§ 33.001–.011. All statutory references are to the Family Code unless otherwise noted.
2      Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ).
3      Ante at 256–57.
4      Planned Parenthood v. Casey, 505 U.S. 833, 869, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).
5      Id. at 851–852, 112 S.Ct. 2791.
6      Id. at 872–873, 112 S.Ct. 2791.
7      Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion).
8      Casey, 505 U.S. at 872–883, 112 S.Ct. 2791 (citations omitted).
9      Id. at 869, 112 S.Ct. 2791.
10     Id. at 874, 112 S.Ct. 2791.
11     Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ).
12     Hodgson, 497 U.S. at 444–445, 110 S.Ct. 2926 (plurality opinion) (citations omitted).
13     Id. at 444, 110 S.Ct. 2926.
14     Id. at 446, 110 S.Ct. 2926.
15     E.g., Patterson v. Planned Parenthood, 971 S.W.2d 439, 447 (Tex.1998) (Gonzalez, J., concurring); In the Interest of J.W.T., 872
       S.W.2d 189, 194–195 (Tex.1994); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976).
16     Bellotti II, 443 U.S. at 637–640, 99 S.Ct. 3035 (emphasis in original, citations omitted).
17     Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).
18     TEX. FAM.CODE § 33.002.
19     Id. § 33.003(i).
20     TEX. GOV'T CODE § 312.002(a); Owens Corning v. Carter, 997 S.W.2d 560, 577 (Tex.1999).
21     Planned Parenthood v. Casey, 505 U.S. 833, 872, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).
22     Id. at 882, 112 S.Ct. 2791.
23     H.L. v. Matheson, 450 U.S. 398, 410, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981).
24     Bellotti v. Baird, 443 U.S. 622, 644 n. 23, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II ) (plurality opinion).
25     Ante at 255.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        24
In re Doe, 19 S.W.3d 249 (2000)


26     Ante at 256.
27     Ante at 256.
28     Ante at 256.
29     Hodgson v. Minnesota, 497 U.S. 417, 444, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion).
30     Ante at 251–52.
31     See also TEX. PARENTAL NOTIFICATION RULES & FORMS, Explanatory Stmt. (“such issues should not be resolved outside
       an adversarial proceeding with full briefing and argument”).
32     Ante at 253.


End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             25
In re Southwestern Bell Telephone Co., L.P., 226 S.W.3d 400 (2007)
50 Tex. Sup. Ct. J. 823, 41 Communications Reg. (P&F) 779

                                                                           Abuse of discretion
                   226 S.W.3d 400                                     A trial court abuses its discretion if it fails to
                Supreme Court of Texas.                               analyze or apply the law correctly.

           In re SOUTHWESTERN BELL                                    30 Cases that cite this headnote
        TELEPHONE COMPANY, L.P., Relator.
                                                                [3]   Mandamus
            No. 05–0511. | Argued March                                    Modification or vacation of judgment or
         22, 2006. | Decided June 1, 2007.                            order
Synopsis                                                              An adequate remedy by appeal did not exist
Background: Competitive local exchange carriers (CLECs)               for trial court's refusal to defer to primary
brought action alleging that incumbent local exchange carrier         jurisdiction of Public Utility Commission (PUC)
(ILEC) overcharged CLECs at rates in excess of rates                  concerning interconnection agreements between
set in arbitrations and thus violated antitrust laws and              competitive local exchange carriers (CLECs)
Deceptive Trade Practices Act (DTPA) and engaged in unjust            and incumbent local exchange carrier (ILEC),
enrichment and fraud. The trial court denied ILEC's motion            and writ of mandamus was thus available;
to refer case based on primary jurisdiction of Public Utility         allowing the trial to proceed would interfere with
Commission (PUC). ILEC petitioned for writ of mandamus.               the important legislatively mandated function
The Corpus Christi Court of Appeals denied writ. ILEC filed           and purpose of the PUC.
another mandamus petition.
                                                                      2 Cases that cite this headnote


                                                                [4]   Telecommunications
Holdings: The Supreme Court, Johnson, J., held that:
                                                                           Primary jurisdiction; administrative or
                                                                      judicial jurisdiction
[1] PUC had primary jurisdiction, and
                                                                      Public Utility Commission (PUC) had primary
[2] ILEC did not waive right to mandamus relief.                      jurisdiction over interpretation, validity, and
                                                                      enforceability of interconnection agreements
                                                                      between competitive local exchange carriers
Writ conditionally granted.                                           (CLECs) and incumbent local exchange carrier
                                                                      (ILEC), and, thus, trial court should have
                                                                      deferred to PUC in CLECs' suit alleging
                                                                      violation of antitrust laws, deceptive trade
 West Headnotes (7)
                                                                      practices, unjust enrichment, and fraud in
                                                                      connection with rates; even though PUC could
 [1]    Mandamus                                                      not grant all relief requested, it was authorized
           Remedy by Appeal or Writ of Error                          to make initial determinations regarding validity
        Mandamus                                                      and meaning of the agreements, and arbitration
           Matters of discretion                                      proceedings did not address validity and
                                                                      enforceability of different rates agreed upon by
        In order to obtain mandamus relief, a relator
                                                                      the parties.
        must show that the trial court clearly abused its
        discretion and that the relator has no adequate               2 Cases that cite this headnote
        remedy by appeal.

        41 Cases that cite this headnote                        [5]   Administrative Law and Procedure
                                                                         Primary jurisdiction

 [2]    Appeal and Error



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
In re Southwestern Bell Telephone Co., L.P., 226 S.W.3d 400 (2007)
50 Tex. Sup. Ct. J. 823, 41 Communications Reg. (P&F) 779

        Primary jurisdiction allocates power between           Scott H. Angstreich, Kellog, Huber, Hansen, Todd, Evans &
        courts and agencies when both have authority to        Figel, PLLC, Washington, DC, for Relator.
        make initial determinations in a dispute.
                                                               Timothy J. Herman, Sean E. Breen, Herman, Howry &
        2 Cases that cite this headnote                        Breen, L.L.P., Mark Foster, Foster & Hunter, Christopher
                                                               Malish, Foster Malish Blair & Cowan, Austin, Gilberto
                                                               Hinojosa, Magallanes Hinojosa & Mancias, Brownsville, for
 [6]    Administrative Law and Procedure
                                                               Real Parties in Interest.
           Primary jurisdiction
        Under the doctrine of “primary jurisdiction,”          John R. Hulme, Natural Resources Division, Austin, for
        trial courts should defer to appropriate               Amicus Curiae.
        administrative agencies when (1) the agency is
        staffed with experts trained in handling complex       Opinion
        problems within the agency's purview, and
                                                               Justice JOHNSON delivered the opinion of the Court.
        (2) great benefit is derived from the agency's
        uniform interpretation of laws within its purview      The issue in this case is whether the Public Utility
        and the agency's rules and regulations when            Commission has primary jurisdiction to resolve threshold
        courts and juries might reach differing results        questions about the meaning and effect of certain telephone
        under similar fact situations.                         interconnection agreements between Southwestern Bell
                                                               Telephone Company and the plaintiff local exchange
        6 Cases that cite this headnote
                                                               telephone service carriers. We conclude that it does, and
                                                               conditionally grant mandamus relief.
 [7]    Mandamus
           Time to Sue, Limitations, and Laches
        Mandamus                                                                      I. Background
           Scope of inquiry and powers of court
        Incumbent local exchange carrier (ILEC) did not        In 1996, Congress opened local telephone service to
        waive right to mandamus relief to correct refusal      competition by enacting the Federal Telecommunications
        to refer suit by competitive local exchange            Act (FTA). Telecommunications Act of 1996, Pub.L. No.
        carriers (CLECs) to Public Utility Commission          104–104, 110 Stat. 56. Telephone companies that provide
        (PUC) under its primary jurisdiction; ILEC             local calling services are referred to as local exchange
        raised the issue in federal court and raised it less   carriers or LECs. Certain LECs such as relator Southwestern
        than a month after remand to state court, and          Bell Telephone Company historically held a monopoly in
        ILEC filed petition less than a month after trial      providing the services and are referred to as incumbent LECs
        court denied motion to defer to PUC.                   or ILECs. Sw. Bell Tel. Co. v. Pub. Util. Comm'n, 208
                                                               F.3d 475, 477 (5th Cir.2000). Historically, the ILECs owned
        Cases that cite this headnote                          extensive telecommunication networks. AT & T Corp. v. Iowa
                                                               Utils. Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 142 L.Ed.2d
                                                               835 (1999) (noting that ILECs “owned, among other things,
                                                               the local loops (wires connecting telephones to switches),
Attorneys and Law Firms                                        the switches (equipment directing calls to their destinations),
                                                               and the *402 transport trunks (wires carrying calls between
 *401 James A. Baker, Weston C. Loegering, Stanford            switches) that constitute a local exchange network”). LECs
Purser, Hughes & Luce, LLP, Kara Lea Altenbaumer–Price,        such as plaintiffs in the trial court, who are real parties in
Dallas, Robert Patrick Rodriguez, Eduardo R. Rodriguez,        interest here, compete with ILECs and are called competitive
Rodriguez, Colvin, Chaney & Saenz, L.L.P., Brownsville,        local exchange carriers (CLECs). The FTA requires each
Cynthia F. Malone, SBC Texas Legal Department, Pamela          ILEC to share its network with competitors. Sw. Bell Tel. Co.,
St. John, Southwestern Bell Telephone, San Antonio, Mike       208 F.3d at 477. The FTA allows a CLEC to access an ILEC's
A. Hatchell, Locke Liddell & Sapp, LLP, Austin, Geoffrey       network in three ways: by purchasing local telephone services
M. Klineberg, Kellogg Huber Hansen Todd & Evans, PLLC,


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
In re Southwestern Bell Telephone Co., L.P., 226 S.W.3d 400 (2007)
50 Tex. Sup. Ct. J. 823, 41 Communications Reg. (P&F) 779

at wholesale rates for resale to end users; by leasing elements     Southwestern Bell both moved for summary judgment
of the incumbent's network on an unbundled basis; and by            in state court. In the alternative, Southwestern Bell also
interconnecting its own facilities with the ILEC's network. AT      sought referral to the PUC on the basis that the PUC had
& T Corp., 525 U.S. at 371, 119 S.Ct. 721.                          primary jurisdiction to decide threshold issues regarding
                                                                    the interconnection agreements. The motions were denied.
Under the FTA, interconnection agreements must be                   Southwestern Bell then sought, but was denied, mandamus
approved by the Public Utility Commission (PUC). See 47             relief from the Thirteenth Court of Appeals. Southwestern
U.S.C. § 252(e) (2001). CLECs may, but need not, separately          *403 Bell now requests this Court to issue a writ of
negotiate contracts with the ILEC. If a CLEC chooses not to         mandamus directing the trial court to (1) refer the issues
separately negotiate a contract, the FTA also allows it to adopt    regarding the interconnection agreements to the PUC and (2)
(1) an existing agreement that any other CLEC has entered           abate the case while the PUC reviews the issues referred. The
into with the ILEC, or (2) a standard-form “T2A” agreement          PUC has filed an amicus brief in support of Southwestern
developed by Southwestern Bell and other CLECs. If parties          Bell's position.
cannot reach an agreement when negotiating the terms of an
interconnection agreement, then either party can ask the PUC
to arbitrate the unresolved issues. See 47 U.S.C. §§ 252(b),
                                                                                     II. Mandamus Standards
(c).
                                                                     [1] [2] [3] In order to obtain mandamus relief a relator
Each of the CLEC plaintiffs in this case contracted                 must show that the trial court clearly abused its discretion
with Southwestern Bell by adopting either the T2A                   and that the relator has no adequate remedy by appeal. In
agreement or an existing previously negotiated agreement.           re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36
The interconnection agreements entered into by the parties          (Tex.2004). A trial court abuses its discretion if it fails to
provided that Southwestern Bell would charge the plaintiff          analyze or apply the law correctly. In re Kuntz, 124 S.W.3d
CLECs between $5.00 and $25.00 for certain services.                179, 181 (Tex.2003). An adequate remedy by appeal does
                                                                    not exist under circumstances such as those presented by
After the plaintiffs and Southwestern Bell entered into             this matter if trial is erroneously permitted to go forward
their interconnection agreements, the PUC conducted two             because allowing the trial to proceed would interfere with
arbitrations to set rates for other CLECs' interconnection          the important legislatively mandated function and purpose
agreements when those CLECs were unable to agree on                 of the PUC. In re Entergy Corp., 142 S.W.3d 316, 321
negotiated prices with Southwestern Bell. Those proceedings         (Tex.2004); see also State v. Sewell, 487 S.W.2d 716, 719
are referred to as the “Mega–Arb” and “AccuTel” 1                   (Tex.1972) (noting the importance of administrative agencies
arbitrations. In the Mega–Arb and AccuTel proceedings               and concluding that the judicial system should avoid improper
the PUC set rates for certain services to be supplied by            restraints on administrative proceedings).
Southwestern Bell at prices between $2.56 and $5.00. The
plaintiffs in this case had contracted to pay between $5.00 and
$25.00 for the same services.
                                                                               III. Analysis—Primary Jurisdiction

Following the PUC's decisions in the Mega–Arb and AccuTel            [4] Southwestern Bell argues that referral to the PUC
proceedings, the plaintiffs brought suit, asserting that            and abatement of the suit is required because the PUC has
Southwestern Bell had been overcharging them because the            primary jurisdiction over questions regarding interpretation
rates in their contracts were substantially higher than the rates   and enforceability of the parties' interconnection agreements.
set in the Mega–Arb and AccuTel arbitration proceedings.            We agree. 3
The causes of action asserted by plaintiffs include (1)
Deceptive Trade Practices Act (DTPA) 2 violations, (2)               [5]     [6] Primary jurisdiction “allocate[s] power between
unjust enrichment/money had and received, (3) violations of         courts and agencies when both have authority to make
Texas anti-trust laws, and (4) fraud.                               initial determinations in a dispute.” Subaru of Am. v. David
                                                                    McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002). Trial
Southwestern Bell removed the suit to federal court, but            courts should defer to appropriate administrative agencies
the federal court remanded the case. The plaintiffs and             when (1) the agency is staffed with experts trained in handling


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
In re Southwestern Bell Telephone Co., L.P., 226 S.W.3d 400 (2007)
50 Tex. Sup. Ct. J. 823, 41 Communications Reg. (P&F) 779

complex problems within the agency's purview, and (2) great       Plaintiff CLECs assert that the PUC lacks primary jurisdiction
benefit is derived from the agency's uniform interpretation of    in this case because it lacks the power to adjudicate the
laws within its purview and the agency's rules and regulations    plaintiffs' tort, DTPA, and antitrust claims. We disagree.
when courts and juries might reach differing results under        Although the PUC cannot grant all the relief that the plaintiffs
similar fact situations. Id. Both requirements are met in this    request, the PUC is authorized to make initial determinations
case.                                                             regarding the validity of the interconnection agreements and
                                                                  their interpretation. We have held that “when the primary
The PUC is staffed with experts who routinely consider the        jurisdiction doctrine requires a trial court to defer to an
validity and enforceability of interconnection agreements.        agency to make an initial determination, the court should
In addition to approving the interconnection agreements in        abate the lawsuit and suspend finally adjudicating the claim
the first instance, the PUC also retains authority to interpret   until the agency has an opportunity to act on the matter.”
and enforce the interconnection agreements when disputes          Butnaru v. Ford Motor Co., 84 S.W.3d 198, 208 (Tex.2002).
arise about their meaning or effect. Sw. Bell Tel. Co. v. Pub.    Once the PUC has made its determinations regarding the
Util. Comm'n, 208 F.3d 475, 479–80 (5th Cir.2000) (“[T]he         interconnection agreements, then the trial court may proceed
[FTA's] grant to the state commissions of plenary authority       with its adjudicative function.
to approve or disapprove these interconnection agreements
necessarily carries with it the authority to interpret and        Plaintiffs further assert that referring the case to the PUC
enforce the provisions of agreements that state commissions       will provide no benefit because the previous arbitration
have approved.”). State commissions have been said to             proceedings resolved the question of what rates Southwestern
act as “deputized federal regulators” under the FTA and           Bell is authorized to charge. Again, we disagree. The
have developed expertise in enforcing and interpreting the        arbitration decisions set rates for the future in situations
requirements of the FTA. MCI Telecomms. Corp. v. Illinois         where other CLECs and the ILEC could not agree between
Bell Tel. Co., 222 F.3d 323, 344 (7th Cir.2000).                  themselves what those rates should be. The proceedings did
                                                                  not address the validity and enforceability of different rates
In addition to the PUC's having expertise in interpreting         between parties who agreed upon those different rates.
interconnection agreements, *404 its uniform interpretation
of the agreements provides great benefit. Conflicting jury        We therefore conclude that the PUC has primary jurisdiction
verdicts and rulings by different courts in regard to same        over questions regarding the validity and enforceability of the
or similar situations and fact patterns could result in           interconnection agreements.
disparate treatment of the CLECs and ILEC. Disparate
treatment of companies and lack of uniform decisions
regarding contractual obligations could inhibit competition,
                                                                                     IV. Analysis—Waiver
compromise the PUC's ability to perform its regulatory
duties under the FTA, and frustrate Congress's goal of             [7] Plaintiff CLECs contend that mandamus relief is not
providing opportunity for competition in the local-calling        warranted in this case because Southwestern Bell (1) waited
market. See H.R. REP. NO. 104–458, at 113 (1996), reprinted       too long to seek a hearing on primary jurisdiction, and
in 1996 U.S.C.C.A.N. 124 (noting that Congress enacted            (2) waited too long before pursuing mandamus relief after
the FTA to promote competition in all telecommunications          the trial court refused to abate the case. Plaintiffs rely
markets, including the local service market). Furthermore,        primarily on Rivercenter Assocs. v. Rivera, 858 S.W.2d 366,
many CLECs have identical interconnection agreements              367 (Tex.1993). In Rivercenter, we held that “[a]lthough
because the FTA allows each CLEC to adopt an agreement            mandamus is not an equitable remedy, its issuance is largely
that another CLEC has entered into with the ILEC. See             controlled by equitable principles,” and one such principle is
47 U.S.C. § 252(I) (2001). Given Congress's intent to             that “ ‘[e]quity aids the diligent and not those who slumber
promote competition and standardize the interconnection           on their rights.’ ” Id. (quoting Callahan v. Giles, 137 Tex.
agreements, there is considerable benefit in obtaining uniform    571, 155 S.W.2d 793, 795 (1941)). In that case, Rivercenter
interpretation of those agreements. See Subaru of Am., 84         sought mandamus relief to quash a jury trial demand because
S.W.3d at 221.                                                    the parties had contractually agreed to waive a jury. We held
                                                                  that relief was not appropriate when *405 Rivercenter was
                                                                  sent notice on the day the jury demand was filed, yet for no



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
In re Southwestern Bell Telephone Co., L.P., 226 S.W.3d 400 (2007)
50 Tex. Sup. Ct. J. 823, 41 Communications Reg. (P&F) 779

                                                                        of primary jurisdiction promptly, sought a hearing within the
apparent reason delayed filing its motion to quash for over
                                                                        timeframe set by the scheduling order, and sought mandamus
four months.
                                                                        relief soon after its motion was denied.
We disagree for two reasons. First, the record in this case
does not reflect unexplained delay in asserting the primary
jurisdiction issue. Southwestern Bell raised the issue in                                        V. Conclusion
federal court, then raised it again in the state trial court on
April 25, 2003—less than a month after the federal court                We hold that the trial court abused its discretion in refusing
remanded the case.                                                      to abate the case to allow the PUC to exercise its primary
                                                                        jurisdiction. We further hold that (1) permitting trial to go
Second, the CLECs do not contend that Southwestern Bell                 forward before the PUC completes its exercise of primary
substantially invoked the litigation process to the CLECs'              jurisdiction would interfere with the important legislatively
prejudice. In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763            mandated function and purpose of the PUC in the construct
(Tex.2006). And, delay alone does not generally establish               established by the FTA, and (2) there is no adequate remedy
waiver. Id. Southwestern Bell filed, on September 13,                   by appeal if trial proceeds before the PUC completes exercise
2004, its separate motion for summary judgment, or in the               of its primary jurisdiction.
alternative, motion to defer to the PUC based on primary
                                                                        Accordingly, we conditionally grant mandamus relief. The
jurisdiction. 4 The trial court heard argument on the motion
                                                                        trial court is directed to abate the case and proceed in
on December 2, 2004 and orally denied it at that time. The trial
                                                                        accordance with this opinion. We are confident that the trial
court entered a written order on April 18, 2005. Southwestern
                                                                        court will comply; the writ will issue only if it fails to do so.
Bell filed its petition for writ of mandamus in the court of
appeals less than one month later. These facts do not present
a situation in which Southwestern Bell failed to timely assert          Parallel Citations
the issue of primary jurisdiction or is barred by prejudicial
delay from asserting that the PUC has primary jurisdiction.             50 Tex. Sup. Ct. J. 823, 41 Communications Reg. (P&F) 779
See id. To the contrary, Southwestern Bell raised the issue


Footnotes
1      AccuTel was originally a plaintiff in the underlying proceeding in this case. The trial court severed AccuTel's claim.
2      Tex. Bus. & Com.Code §§ 17.41–63.
3      Southwestern Bell also argues that abatement and referral to the PUC is warranted because the PUC has exclusive jurisdiction over
       threshold issues. Because Southwestern Bell seeks only abatement and not dismissal of the case, we decide the case based on primary
       jurisdiction and do not reach the question of exclusive jurisdiction.
4      The mandamus record does not contain the trial court's scheduling order. However, Southwestern Bell asserts, and the CLECs do not
       dispute, that Southwestern Bell filed its motion in accordance with the trial court's scheduling order.


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    5
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966


                                                                        28 Cases that cite this headnote
                    105 S.Ct. 3099
           Supreme Court of the United States
                                                                  [2]   Civil Rights
  KENTUCKY, dba Bureau of State Police, Petitioner                           Parties entitled or liable; immunity
                      v.                                                Civil Rights
           James E. GRAHAM et al.                                            Results of litigation; prevailing parties
                                                                        Liability on the merits and responsibility for fees
            No. 84–849. | Argued April 16,
                                                                        go hand in hand and, thus, where a defendant in
           1985. | Decided June 28, 1985.
                                                                        a suit covered by civil rights attorney fee statute
A § 1983 suit was brought against the Commissioner                      [42 U.S.C.A. § 1988] has not been prevailed
of the Kentucky State Police “individually and as                       against, either because of legal immunity or on
Commissioner” seeking damages for alleged deprivation of                the merits, the act does not authorize a fee award
federal constitutional rights in warrantless raid and arrest by         against that defendant.
the state police. The Commonwealth, which was sued only
                                                                        65 Cases that cite this headnote
for fees should the plaintiff eventually prevail, was dismissed
on Eleventh Amendment grounds. Following settlement, the
plaintiff moved for costs and attorney fees. The United           [3]   Federal Civil Procedure
States District Court for the Western District of Kentucky                  Prevailing party
awarded costs and fees against the Commonwealth. The                    Federal Civil Procedure
Court of Appeals for the Sixth Circuit, in an unpublished                   Bad faith, vexatiousness, etc
opinion, 742 F.2d 1455, affirmed. Certiorari was granted. The           Prevailing defendants generally are entitled to
Supreme Court, Justice Marshall, held that: (1) liability on            costs, but are entitled to fees only when the
the merits and responsibilities for fees go hand in hand and,           suit was vexatious, frivolous or brought to
hence, where a defendant has not been prevailed against, §              harass or embarrass the defendant. Fed.Rules
1988 does not authorize a fee award against that defendant;             Civ.Proc.Rule 54(d), 28 U.S.C.A.
(2) a suit against a government official in his/her personal
capacity cannot lead to imposition of fee liability on the              6 Cases that cite this headnote
governmental entity; and (3) instant suit was necessarily
litigated as a personal-capacity action, thereby precluding
                                                                  [4]   Civil Rights
fee award against the Commonwealth, notwithstanding that
                                                                             Liability of Public Officials
the Commissioner was sued in both his “individual” and
“official” capacities.                                                  Personal-capacity civil rights suits seek to
                                                                        impose personal liability on a government
Judgment of Court of Appeals reversed.                                  official for actions he takes under color of state
                                                                        law; in contrast, official-capacity suits generally
                                                                        represent only another way of pleading an action
                                                                        against the entity of which the officer is an agent.
 West Headnotes (24)                                                    42 U.S.C.A. § 1983.

                                                                        3270 Cases that cite this headnote
 [1]    Civil Rights
             Results of litigation; prevailing parties
                                                                  [5]   Civil Rights
        If a plaintiff prevails in a suit covered by
                                                                             Parties
        civil rights attorney fee statute [42 U.S.C.A. §
        1988], fees should be awarded as costs unless                   As long as the governmental entity receives
        special circumstances would render such an                      notice and an opportunity to respond, an official-
        award unjust.                                                   capacity suit is, in all respects other than name, to
                                                                        be treated as a suit against the entity and it is not



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

       a suit against the official personally, for the real          In an official-capacity suit under § 1983, the
       party in interest is the entity. 42 U.S.C.A. § 1983.          governmental entity's “policy or custom” must
                                                                     have played a part in the violation of federal law.
       2360 Cases that cite this headnote                            42 U.S.C.A. § 1983.

                                                                     840 Cases that cite this headnote
 [6]   Civil Rights
            Liability of Public Officials
       While an award of damages against an official          [10]   Civil Rights
       in his personal capacity can be executed only                      Good faith and reasonableness; knowledge
       against the official's personal assets, a plaintiff           and clarity of law; motive and intent, in general
       seeking to recover on a damages judgment                      An official in a personal-capacity § 1983 action
       in an official-capacity suit must look to the                 may, depending on his position, be able to assert
       government entity itself. 42 U.S.C.A. § 1983.                 personal immunity defenses to liability, such as
                                                                     objectively reasonable reliance on existing law.
       1792 Cases that cite this headnote                            42 U.S.C.A. § 1983.

                                                                     186 Cases that cite this headnote
 [7]   Federal Civil Procedure
           Officer's death or separation from office
       Should a government official die pending               [11]   Civil Rights
       resolution of a personal-capacity action, the                      Government Agencies and Officers
       plaintiff would have to pursue his action                     In an official capacity action, the personal
       against the decedent's estate; in an official-                immunity defenses available to a public official
       capacity action in federal court, death or                    sued in his personal capacity in a § 1983 suit
       replacement of the named official will result                 are unavailable and the only immunities that
       in automatic substitution of the official's                   can be claimed are forms of sovereign immunity
       successor. Fed.Rules Civ.Proc.Rule 25(d)(1), 28               that the entity, qua entity, may possess, such as
       U.S.C.A.; F.R.A.P.Rule 43(c)(1), 28 U.S.C.A.;                 the Eleventh Amendment. 42 U.S.C.A. § 1983;
       U.S.Sup.Ct.Rule 40, subd. 3, 28 U.S.C.A.                      U.S.C.A. Const.Amend. 11.

       59 Cases that cite this headnote                              1120 Cases that cite this headnote


 [8]   Civil Rights                                           [12]   Civil Rights
            Liability of Public Officials                                 Government liability
       On the merits, to establish personal liability of a           Punitive damages are not available under § 1983
       public official in a § 1983 action, it is enough to           from a municipality, but are available in a suit
       show that the official, acting under color of state           against an official personally. 42 U.S.C.A. §
       law, caused the deprivation of a federal right, but           1983.
       more is required in an official-capacity action,
       for the governmental entity is liable under § 1983            112 Cases that cite this headnote
       only when the entity itself is a “moving force”
       behind the deprivation. 42 U.S.C.A. § 1983.            [13]   Civil Rights
                                                                          Parties
       1229 Cases that cite this headnote
                                                                     There is no longer a need to bring official-
                                                                     capacity actions against local government
 [9]   Civil Rights                                                  officials, because under Monell, local
            Governmental Ordinance, Policy, Practice,                government officials can be sued directly under
       or Custom                                                     § 1983 for damages and injunctive or declaratory
                                                                     relief. 42 U.S.C.A. § 1983.


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966


        563 Cases that cite this headnote                             7 Cases that cite this headnote


 [14]   Federal Courts                                         [17]   Civil Rights
            Abrogation by Congress                                         Parties entitled or liable; immunity
        Federal Courts                                                Permitting a § 1988 fee award against a
             Suits for injunctive or other prospective or             governmental entity in an action against a
        equitable relief; Ex parte Young doctrine                     government official in his/her personal capacity
        Federal Courts                                                would be inconsistent with the Monell rule that a
            Agencies, officers, and public employees                  municipality cannot be made liable under § 1983
                                                                      on a respondeat superior basis. 42 U.S.C.A. §§
        Unless a state has waived its Eleventh
                                                                      1983, 1988.
        Amendment immunity [U.S.C.A. Const.Amend.
        11] or Congress has overridden it, a state cannot             455 Cases that cite this headnote
        be sued directly in its own name, regardless of
        the relief sought; thus, implementation of state
        policy or custom may be reached in federal             [18]   Civil Rights
        court only because official-capacity actions for                   Proceedings, grounds, and objections in
        prospective relief are not treated as actions                 general
        against the state.                                            Just as Congress rejected making § 1983 a
                                                                      “mutual insurance” scheme, Congress sought to
        702 Cases that cite this headnote                             avoid making § 1988 a “relief fund for lawyers.”
                                                                      42 U.S.C.A. §§ 1983, 1988.
 [15]   Civil Rights
                                                                      2 Cases that cite this headnote
             Parties entitled or liable; immunity
        A suit against a government official in his or
        her personal capacity cannot lead to imposition        [19]   Civil Rights
        of fee liability on the government under civil                     Results of litigation; prevailing parties
        rights attorney fee statute; victory in a personal-           Section 1988 does not create attorney fee liability
        capacity action is a victory against the individual           where merits liability is nonexistent. 42 U.S.C.A.
        defendant, rather than against the entity that                § 1988.
        employs him and unless a distinct cause of action
        is asserted against the entity itself, the entity is          9 Cases that cite this headnote
        not even a party to a personal-capacity lawsuit
        and has no opportunity to present the defense;         [20]   Civil Rights
        disapproving Glover v. Alabama Department of                       Parties entitled or liable; immunity
        Corrections, 753 F.2d 1569. 42 U.S.C.A. § 1983.               Section 1983 damages action brought against
                                                                      Commissioner of Kentucky State Police to
        1457 Cases that cite this headnote
                                                                      recover for alleged violation of federal
                                                                      constitutional rights in warrantless raid and arrest
 [16]   Federal Civil Procedure                                       by state police was necessarily litigated as a
            Persons liable                                            personal-capacity action and it was error to
        That a plaintiff has prevailed against                        award § 1988 fees against the Commonwealth,
        one party does not entitle him to fees                        notwithstanding that complaint expressly named
        from another party, let alone from a                          the Commissioner in both his “individual” and
        nonparty. Fed.Rules Civ.Proc.Rule 25(d)(1), 28                “official” capacities and that the Commonwealth
        U.S.C.A.; F.R.A.P.Rule 43(c)(1), 28 U.S.C.A.;                 was named as a defendant for limited purposes of
        U.S.Sup.Ct.Rule 40, subd. 3, 28 U.S.C.A.                      fee award; given Eleventh Amendment doctrine
                                                                      and fact that the Commonwealth had not


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

        waived Eleventh Amendment immunity, there                     on the merits and for fees, to the governmental
        could be no doubt that the damages action                     entity employing the offending official.
        did not seek to impose monetary liability on
        the Commonwealth and absent liability on the                  346 Cases that cite this headnote
        merits fees could not be awarded against the
        Commonwealth. 42 U.S.C.A. §§ 1983, 1988;
        U.S.C.A. Const.Amend. 11.

        1007 Cases that cite this headnote                                      **3101 *159 Syllabus *

                                                             Respondents were arrested following the warrantless raid of a
 [21]   Federal Courts
                                                             house in Kentucky by local and state police officers who were
            Agencies, officers, and public employees
                                                             seeking a murder suspect. Claiming a deprivation of federal
        Eleventh Amendment bar remains in effect when        rights allegedly resulting from the police's use of excessive
        state officials are sued for damages in their        force and other constitutional violations accompanying the
        official capacity. U.S.C.A. Const.Amend. 11.         raid, respondents filed suit in Federal District Court under,
                                                             inter alia, 42 U.S.C. § 1983, seeking money damages.
        2147 Cases that cite this headnote
                                                             Among the named defendants were the Commissioner of the
                                                             Kentucky State Police, “individually and as Commissioner,”
 [22]   Federal Courts                                       and the Commonwealth of Kentucky, which was sued only
             Suits for injunctive or other prospective or    for attorney's fees should respondents eventually prevail.
        equitable relief; Ex parte Young doctrine            The District Court, relying on the Eleventh Amendment,
        Federal Courts                                       dismissed the Commonwealth as a party. On the second day
            Agencies, officers, and public employees         of trial, the case was settled in favor of respondents, who then
                                                             moved that the Commonwealth pay their costs and attorney's
        In an injunctive or declaratory action grounded
                                                             fees pursuant to 42 U.S.C. § 1988, which provides that in any
        on federal law the state's Eleventh Amendment
                                                             action to enforce § 1983, the court may allow “the prevailing
        immunity [U.S.C.A. Const.Amend. 11] can
                                                             party ... a reasonable attorney's fee as part of the costs.” The
        be overcome by naming state officials as
                                                             District Court granted the motion, and the Court of Appeals
        defendants.
                                                             affirmed.
        272 Cases that cite this headnote
                                                             Held: Section 1988 does not allow attorney's fees to be
                                                             recovered from a governmental entity when a plaintiff sues
 [23]   Federal Courts
                                                             governmental employees only in their personal capacities
             Suits for injunctive or other prospective or
                                                             and prevails; accordingly, since this case was necessarily
        equitable relief; Ex parte Young doctrine
                                                             litigated as a **3102 personal-capacity and not as an
        Monetary relief that is “ancillary” to injunctive    official-capacity action, it was error to award fees against the
        relief is not barred by the Eleventh Amendment.      Commonwealth. Pp. 3104–3108.
        U.S.C.A. Const.Amend. 11.
                                                             (a) While § 1988 does not define the parties who must bear
        83 Cases that cite this headnote
                                                             the costs, the logical place to look for recovery of fees is to the
                                                             losing party. Liability on the merits and responsibility for fees
 [24]   Civil Rights                                         go hand in hand. Where a defendant has not been prevailed
             Liability of Public Officials                   against, either because of legal immunity or on the merits, §
        Civil Rights                                         1988 does not authorize a fee award against that defendant.
             Parties entitled or liable; immunity            Pp. 3104–3105.
        Only in an official-capacity action is a plaintiff
                                                             (b) Personal-capacity suits seek to impose personal liability
        who prevails entitled to look for relief, both
                                                             upon a government officer for actions he takes under color
                                                             of state law, whereas official-capacity suits against an officer


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

are generally treated as suits against the governmental entity
of which the officer is an agent. With this distinction in mind,   Jack M. Lowery, Jr., argued the cause for respondents. With
it is clear that a suit against a government officer *160 in       him on the brief was Hollis L. Searcy.*
his or her personal capacity cannot lead to imposition of fee
                                                                   * Joyce Holmes Benjamin, H. Bartow Farr III, Paul M. Smith,
liability upon the governmental entity. Pp. 3105–3107.
                                                                   and Joseph N. Onek filed a brief for the National League of
                                                                   Cities et al. as amici curiae urging reversal.
(c) To hold that fees can be recovered from a governmental
entity following victory in a personal-capacity action against     Opinion
government officials would be inconsistent with the rule that
the entity cannot be made liable on the merits under § 1983        *161 Justice MARSHALL delivered the opinion of the
on a respondeat superior basis. Nothing in § 1988's history        Court.
suggests that fee liability was intended to be imposed on that
                                                                   The question presented is whether 42 U.S.C. § 1988 allows
basis. Section 1988 simply does not create fee liability where
                                                                   attorney's fees to be recovered from a governmental entity
merits liability is nonexistent. P. 3107.
                                                                   when a plaintiff sues governmental employees only in their
                                                                   personal capacities and prevails.
(d) Although the State Police Commissioner was named as
a defendant in both his “individual” and “official” capacities
and the Commonwealth was named as a defendant for the
limited purpose of a fee award, there can be no doubt,                                           I
given Eleventh Amendment doctrine, that the action did not
seek to impose monetary liability on the Commonwealth.             On November 7, 1979, a Kentucky state trooper was
Absent waiver by a State or valid congressional override,          murdered. Suspicion quickly focused on Clyde Graham,
the Eleventh Amendment bars a damages action against               whose step-mother's car was found near the site of the slaying
a State in federal court, a bar that remains in effect             and whose driver's license and billfold were discovered in
when state officials are sued for damages in their official        nearby bushes. That evening, 30 to 40 city, county, and state
capacity. Accordingly, an official-capacity damages action         police officers converged on the house of Graham's father
could not have been maintained against the Commissioner            in Elizabethtown, Kentucky. Without a warrant, the police
in federal court. Respondents cannot seek damages from the         entered the home twice and eventually **3103 arrested all
Commonwealth simply by suing Commonwealth officials in             the occupants, who are the six respondents here. Graham
their official capacity, nor did respondents' action on the        was not among them. 1 According to respondents, they were
merits become a suit against the Commonwealth by simply            severely beaten, terrorized, illegally searched, and falsely
naming it as a defendant on the limited issue of fee liability.    arrested. Kenneth Brandenburgh, the Commissioner of the
Pp. 3107–3108.                                                     State Police and the highest ranking law enforcement officer
                                                                   in Kentucky, allegedly was directly involved in carrying out
(e) Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d       at least one of the raids. An investigation by the Kentucky
522, did not alter the basic philosophy of § 1988 that fees and    Attorney General's office later concluded that the police had
merits liability run together, nor did it hold or suggest that     used excessive force and that a “complete breakdown” in
fees are available from a governmental entity simply because       police discipline had created an “uncontrolled” situation.
a government official has been prevailed against in his or her     App. to Brief for Respondents 21–22.
personal capacity. P. ––––.
                                                                   Alleging a deprivation of a number of federal rights,
742 F.2d 1455, (CA 6 1984), reversed.                              respondents filed suit in Federal District Court. 2 Their
                                                                   complaint *162 sought only money damages and named as
                                                                   defendants various local and state law enforcement officers,
Attorneys and Law Firms
                                                                   the city of Elizabethtown, and Hardin County, Kentucky.
George M. Geoghegan, Jr., Assistant Attorney General of            Also made defendants were Commissioner Brandenburgh,
Kentucky, argued the cause for petitioner. With him on the         “individually and as Commissioner of the Bureau of
brief were David L. Armstrong, Attorney General, and Cathy         State Police,” and the Commonwealth of Kentucky. The
Cravens Snell.                                                     Commonwealth was sued, not for damages on the merits,



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Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

but only for attorney's fees should the plaintiffs eventually       IX of Public Law 92–318, or title VI of the Civil Rights
        3                                                           Act of 1964, the court, in its discretion, may allow the
prevail. Shortly after the complaint was filed, the District
Court, relying on the Eleventh Amendment, dismissed                 prevailing party, other than the United States, a reasonable
the Commonwealth as a party. Based on its Attorney                  attorney's fee as part of the costs” (emphasis added).
General's report, the Commonwealth refused to defend
                                                                  *164 If a plaintiff prevails in a suit covered by § 1988,
any of the individual defendants, including Commissioner
                                                                 fees should be awarded as costs “unless special circumstances
Brandenburgh, or to pay their litigation expenses.
                                                                 would render such an award unjust.” S.Rep. No. 94–1011, p.
                                                                 4 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908,
On the second day of trial, the case was settled for
                                                                 5911; see Supreme Court of Virginia v. Consumers Union
$60,000. 4 The settlement agreement, embodied in a court         of United States, Inc., 446 U.S. 719, 737, 100 S.Ct. 1967,
order dismissing the case, barred respondents from seeking       1977, 64 L.Ed.2d 641 (1980). Section 1988 does not in so
attorney's fees from any of the individual defendants but        many words define the parties who must bear these costs.
specifically preserved respondents' right to seek fees and       Nonetheless, it is clear that the logical place to look for
court costs from the Commonwealth. Respondents then              recovery of fees is to the losing party—the party legally
moved, pursuant to 42 U.S.C. § 1988, that the Commonwealth       responsible for relief on the merits. That is the party who
pay their costs and attorney's fees. At a hearing on this        must pay the costs of the litigation, see generally Fed.Rule
motion, the Commonwealth argued that the fee request had
                                                                 Civ.Proc. 54(d), 7 and it is clearly the party who should also
to be *163 denied as a matter of law, both because the
                                                                 bear fee liability under § 1988.
Commonwealth had been dismissed as a party and because
the Eleventh Amendment, in any event, barred such an award.
                                                                 We recognized as much in Supreme Court of Virginia, supra.
Rejecting these arguments, the District Court ordered the
                                                                 There a three-judge District Court had found the Virginia
Commonwealth to pay $58,521 in fees and more than $6,000
                                                                 Supreme Court and its chief justice in his official capacity
in costs and expenses. 5 In a short per curiam opinion relying   liable for promulgating, and refusing to amend, a State Bar
solely on this Court's decision in Hutto v. Finney, 437 U.S.     Code that violated the First Amendment. The District Court
678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Court of          also awarded fees against these defendants pursuant to §
Appeals for the Sixth Circuit affirmed. Graham v. Wilson,        1988. We held that absolute legislative immunity shielded
742 F.2d 1455 (1984).                                            these defendants for acts taken in their legislative capacity.
                                                                 We then vacated the fee award, stating that we found nothing
We granted certiorari to address the proposition, rejected       “in the legislative history of the Act to suggest that Congress
by at least two Courts **3104 of Appeals, 6 that fees can        intended to permit an award of attorney's fees to be premised
be recovered from a governmental entity when a plaintiff         on acts for which defendants would enjoy absolute legislative
prevails in a suit against government employees in their         immunity.” 446 U.S., at 738, 100 S.Ct., at 1978. 8 *165
personal capacities. 469 U.S. 1156, 105 S.Ct. 900, 83 L.Ed.2d    Thus, liability on the merits and responsibility for fees go
916 (1985). We now reverse.                                      hand in hand; where a defendant has not been prevailed
                                                                 against, either because of legal immunity or on the merits, §
                                                                  1988 does not authorize a fee award against that defendant. 9
                               II                                 Cf. **3105 Pulliam v. Allen, 466 U.S. 522, 543–544, 104
                                                                  S.Ct. 1970, 1981–1982, 80 L.Ed.2d 565 (1984) (state judge
 [1] [2] [3] This case requires us to unravel once again the liable for injunctive and declaratory relief under § 1983 also
distinctions between personal- and official-capacity suits, see   liable for fees under § 1988).
Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878
(1985), this time in the context of fee awards under 42 U.S.C.
§ 1988. The relevant portion of § 1988, enacted as the Civil
Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641,                                        A
provides:
                                                                  Proper application of this principle in damages actions
   “In any action or proceeding to enforce a provision of         against public officials requires careful adherence to the
   sections 1981, 1982, 1983, 1985, and 1986 of this title, title distinction between personal- and official-capacity action




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           6
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

suits. 10 Because this distinction apparently continues to        v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d
confuse lawyers and confound lower courts, we attempt to          396 (1982) (qualified immunity); Wood v. Strickland, 420
define it more clearly through concrete examples of the           U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) (same). In
practical and doctrinal differences between personal and          an official-capacity action, these defenses are unavailable.
official capacity actions.                                        Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398,
                                                                  63 L.Ed.2d 673 (1980); see also Brandon v. Holt, 469 U.S.
 [4] [5] [6] [7] Personal-capacity suits seek to impose464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). 13 The only
personal liability upon a government official for actions           immunities that can be claimed in an official-capacity action
he takes under color of state law. See, e.g., Scheuer v.            are forms of sovereign immunity that the entity, qua entity,
Rhodes, 416 U.S. 232, 237–238, 94 S.Ct. 1683, 1686–1687,            may possess, such as the Eleventh Amendment. While not
40 L.Ed.2d 90 (1974). Official-capacity suits, in contrast,         exhaustive, this list illustrates the basic distinction between
“generally represent only another way of pleading an action         personal- and official-capacity actions. 14
against an entity of which an officer is an agent.” *166
Monell v. New York City Dept. of Social Services, 436 U.S.           [15]    [16] With this distinction in mind, it is clear that
658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611         a suit against a government official in his or her personal
1978). As long as the government entity receives notice and         capacity cannot lead to imposition of fee liability upon the
an opportunity to respond, an official-capacity suit is, in all     governmental entity. A victory in a personal-capacity action
respects other than name, to be treated as a suit against the       is a victory against the individual defendant, rather than
entity. Brandon, supra, 469 U.S., at 471–472, 105 S.Ct., at         against the *168 entity that employs him. Indeed, unless a
878. It is not a suit against the official personally, for the real distinct cause of action is asserted against the entity itself,
party in interest is the entity. Thus, while an award of damages    the entity is not even a party to a personal-capacity lawsuit
against an official in his personal capacity can be executed        and has no opportunity to present a defense. That a plaintiff
only against the official's personal assets, a plaintiff seeking    has prevailed against one party does not entitle him to fees
to recover on a damages judgment in an official-capacity suit       from another party, let alone from a nonparty. Cf. Hensley
must look to the government entity itself. 11                   v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40
                                                                (1983). Yet that would be the result were we to hold that
 [8] [9] [10] [11] [12] [13] [14] On the merits,                fees
                                                                   to can be recovered from a governmental entity following
establish personal liability in a § 1983 action, it is enough   victory in a personal-capacity action against government
to show that the official, acting under color of state law,     officials.
caused the deprivation of a federal right. See, e.g., Monroe
v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
More is required in an official-capacity action, however, for
                                                                                                B
a governmental entity is liable under § 1983 only when the
entity itself is a “ ‘moving force’ ” behind the deprivation,    [17] [18] [19] Such a result also would be inconsistent
Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445,        with the statement in Monell, supra, that a municipality
454, 70 L.Ed.2d 509 (1981) (quoting Monell, supra, 436          cannot be made liable under 42 U.S.C. § 1983 on a respondeat
U.S., at 694, 98 S.Ct., at 2037); thus, in an official-capacity superior basis. Nothing in the history of § 1988, a statute
suit the entity's “policy or custom” must have played a part    designed to make effective the remedies created in § 1983
in the violation of federal law. Monell, supra; Oklahoma        and similar statutes, suggests that fee liability, unlike merits
City v. Tuttle, 471 U.S. 808, 817–818, 105 S.Ct. 2427,          liability, was intended to be imposed on a respondeat superior
2433, 85 L.Ed.2d 791 (1985); id., at 827–828, 105 S.Ct.,        basis. On the contrary, just as Congress rejected making §
at 2437, 2438 (BRENNAN, J., concurring in judgment). 12           1983 a “mutual insurance” scheme, 436 U.S., at 694, 98 S.Ct.,
When it comes to defenses to liability, an official in a          at 2037, Congress sought to avoid making § 1988 a “ ‘relief
personal-capacity action may, depending on his position, be       fund for lawyers.’ ” Hensley, supra, at 446, 103 S.Ct., at 1946
able to assert personal immunity defenses, such *167 as           (opinion of BRENNAN, J.) (quoting 122 Cong.Rec. 33314
objectively reasonable reliance on existing law. See Imbler       (1976) (remarks of Sen. Kennedy)). Section 1988 does not
v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128           guarantee that lawyers will recover fees anytime their clients
(1976) (absolute immunity); Pierson v. Ray, 386 U.S. 547, 87      sue a government official in his personal capacity, with the
S.Ct. 1213, 18 L.Ed.2d 288 (1967) (same); **3106 Harlow           governmental entity as ultimate insurer. Instead, fee liability


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Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

                                                                     the merits. See supra, at ––––. Naming the Commonwealth
runs with merits liability; if federal law does not make the
                                                                     for fees did not create, out of whole cloth, the cause of action
government substantively liable on a respondeat superior
                                                                     on the merits necessary to support this fee request. Thus, no
basis, the government similarly is not liable for fees on that
                                                                     claim for merits relief capable of being asserted in federal
basis under § 1988. Section 1988 simply does not create fee
                                                                     court was asserted against the Commonwealth of Kentucky.
liability where merits liability is non-existent.
                                                                     In the absence of such a claim, the fee award against the
                                                                     Commonwealth must be reversed.

                           **3107 III

 [20]    [21]     [22]    [23] We conclude that this case                               **3108 IV
was necessarily litigated as a personal-capacity action and
                                                             Despite the Court of Appeals' contrary view, the result we
that the Court of Appeals therefore erred in awarding
                                                             reach today is fully consistent with Hutto v. Finney, 437 U.S.
fees against the Commonwealth of *169 Kentucky. 15
                                                             678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Hutto holds only
In asserting the contrary, respondents point out that the
                                                             that, when a State in a § 1983 action has been prevailed
complaint expressly named Commissioner Brandenburgh in
                                                             against for relief on the merits, either because the State was
both his “individual” and “official” capacities and that the
                                                             a proper party defendant or because state officials properly
Commonwealth of Kentucky was named as a defendant for
                                                             were sued in their official capacity, fees may also be available
the limited purposes of a fee award. Nonetheless, given
                                                             from the State under § 1988. Hutto does not alter the basic
Eleventh Amendment doctrine, there can be no doubt that this
                                                             philosophy of *171 § 1988, namely, that fee and merits
damages action did not seek to impose monetary liability on
                                                             liability run together. As a result, Hutto neither holds nor
the Commonwealth. 16                                         suggests that fees are available from a governmental entity
                                                             simply because a government official has been prevailed
The Court has held that, absent waiver by the State or       against in his or her personal capacity.
valid congressional override, the Eleventh Amendment bars
a damages action against a State in federal court. 17 See,           Respondents vigorously protest that this holding will
e.g., Ford Motor Co. v. Department of Treasury of Indiana,           “effectively destro[y]” § 1988 in cases such as this one.
323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).           Brief for Respondents 19. This fear is overstated. Fees are
This bar remains in effect when State officials are sued             unavailable only where a governmental entity cannot be held
for damages in their official capacity. Cory v. White, 457           liable on the merits; today we simply apply the fee-shifting
U.S. 85, 90, 102 S.Ct. 2325, 2328, 72 L.Ed.2d 694 (1982);            provisions of § 1988 against a pre-existing background of
Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355,           substantive liability rules.
39 L.Ed.2d 662 (1974). That is so because, as discussed
above, “a judgment against a public servant ‘in his official
capacity’ imposes liability on the entity that he represents....”                                   V
Brandon, supra, 469 U.S., at 471, 105 S.Ct., at 878. 18
                                                                      [24] Only in an official-capacity action is a plaintiff who
 *170 Given this understanding of the law, an official-              prevails entitled to look for relief, both on the merits and for
capacity action for damages could not have been maintained           fees, to the governmental entity. Because the Court's Eleventh
                                                                     Amendment decisions required this case to be litigated as
against Commissioner Brandenburgh in federal court. 19
                                                                     a personal-capacity action, the award of fees against the
Although respondents fail to acknowledge this point, they
                                                                     Commonwealth of Kentucky must be reversed.
freely concede that money damages were never sought from
the Commonwealth and could not have been awarded against
                                                                     It is so ordered.
it; 20 respondents cannot reach this same end simply by suing
State officials in their official capacity. Nor did respondents'
action on the merits become a suit against Kentucky when
the Commonwealth was named a defendant on the limited                Parallel Citations
issue of fee liability. There is no cause of action against a
                                                                     105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966
defendant for fees absent that defendant's liability for relief on


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Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966



Footnotes
*     The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience
      of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
1     Clyde Graham was killed by a Kentucky state trooper a month later at a motel in Illinois.
2     Respondents asserted causes of action under 42 U.S.C. §§ 1983, 1985, 1986, and 1988, as well as the Fourth, Fifth, Sixth, Eleventh,
      and Fourteenth Amendments. Complaint ¶ 13. Because the case was settled, there has been no need below to separate out or distinguish
      any of these purported causes of action. Before this Court, the parties briefed and argued the case as if it had been brought simply
      as a § 1983 action and we, accordingly, analyze it the same way. Our discussion throughout is therefore not meant to express any
      view on suits brought under any provision of federal law other than § 1983.
3     The complaint states:
         “Pursuant to the provisions of 42 U.S.C. Sec. 1988, the Commonwealth of Kentucky, d/b/a Bureau of State Police is liable for the
         payment of reasonable attorney fees incurred in this action.” Complaint ¶ 4(D).
         According to respondents, “[p]aragraph 4(D) ... states the sole basis for including the Commonwealth as a named party.” Brief
         for Respondents 14.
4     Five thousand dollars came from the city and $10,000 from the County. The remaining $45,000 was to be paid by Commissioner
      Brandenburgh, both personally and as agent for the “Kentucky State Police Legal Fund.” The latter was not a named defendant but
      presumably represented the interests of the individual officers sued.
5     Petitioner did not appeal from the award of costs and expenses, and we therefore have no occasion to consider the appropriateness
      of these portions of the award.
6     Berry v. McLemore, 670 F.2d 30 (CA5 1982) (municipal officials); Morrison v. Fox, 660 F.2d 87 (CA3 1981) (same). At least one
      Court of Appeals appears to have reached the same result as that of the lower court in this case. See Glover v. Alabama Department
      of Corrections, 753 F.2d 1569 (CA11 1985).
7     See 6 J. Moore, W. Taggart, & J. Wicker, Moore's Federal Practice § 54.70[1], p. 1301 (1985) (“Costs” are awarded “against the
      losing party and as an incident of the judgment”); 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2666, p.
      173 (1983) ( “ ‘Costs' refers to those charges that one party has incurred and is permitted to have reimbursed by his opponent as
      part of the judgment in the action”).
8     We did hold that the court and its chief justice in his official capacity could be enjoined from enforcing the State Bar Code and
      suggested that fees could be recovered from these defendants in their enforcement roles. Because the fee award had clearly been made
      against the defendants in their legislative roles, however, the award had to be vacated and the case remanded for further proceedings.
      That fees could be awarded against the Virginia Supreme Court and its chief justice pursuant to an injunction against enforcement
      of the Code further illustrates that fee liability is tied to liability on the merits.
9     The rules are somewhat different with respect to prevailing defendants. Prevailing defendants generally are entitled to costs, see
      Fed.Rule Civ.Proc. 54(d), but are entitled to fees only where the suit was vexatious, frivolous, or brought to harass or embarrass the
      defendant. See Hensley v. Eckerhart, 461 U.S. 424, 429, n. 2, 103 S.Ct. 1933, 1937, n. 2, 76 L.Ed.2d 40 (1983).
         We express no view as to the nature or degree of success necessary to make a plaintiff a prevailing party. See Maher v. Gagne,
         448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980).
10    Personal-capacity actions are sometimes referred to as individual-capacity actions.
11    Should the official die pending final resolution of a personal-capacity action, the plaintiff would have to pursue his action against the
      decedent's estate. In an official-capacity action in federal court, death or replacement of the named official will result in automatic
      substitution of the official's successor in office. See Fed.Rule Civ.Proc. 25(d)(1); Fed.Rule App.Proc. 43(c)(1); this Court's Rule 40.3.
12    See Monell, 436 U.S., at 694, 98 S.Ct., at 2037 (“[A] local government may not be sued under § 1983 for an injury inflicted solely
      by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or
      by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is
      responsible under § 1983”).
13    In addition, punitive damages are not available under § 1983 from a municipality, Newport v. Fact Concerts, Inc., 453 U.S. 247,
      101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), but are available in a suit against an official personally, see Smith v. Wade, 461 U.S. 30,
      103 S.Ct. 1625, 75 L.Ed.2d 632 (1983).
14    There is no longer a need to bring official-capacity actions against local government officials, for under Monell, supra, local
      government units can be sued directly for damages and injunctive or declaratory relief. See, e.g., Memphis Police Dept. v. Garner,
      471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (decided with Tennessee v. Garner ) (damages action against municipality). Unless
      a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its
      own name regardless of the relief sought. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam ).


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          9
Kentucky v. Graham, 473 U.S. 159 (1985)
105 S.Ct. 3099, 87 L.Ed.2d 114, 53 USLW 4966

      Thus, implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective
      relief are not treated as actions against the State. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
         In many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. “The
         course of proceedings” in such cases typically will indicate the nature of the liability sought to be imposed. Brandon v. Holt, 469
         U.S. 464, 469, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985).
15    The city and county were sued directly as entities, but that aspect of the case is not before us.
16    See also n. 3, supra.
17    The Court has held that § 1983 was not intended to abrogate a State's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S.
      332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651 (1974). Because this action comes to us as if it arose
      solely under § 1983, see n. 2, supra, we cannot conclude that federal law authorized an official-capacity action for damages against
      Commissioner Brandenburgh to be brought in federal court.
         As to legislative waiver of immunity, petitioners assert that the Commonwealth of Kentucky has not waived its Eleventh
         Amendment immunity. This contention is not disputed, and we therefore accept it for purposes of this case.
18    In an injunctive or declaratory action grounded on federal law, the State's immunity can be overcome by naming state officials as
      defendants. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); see also Ex
      parte Young, supra. Monetary relief that is “ancillary” to injunctive relief also is not barred by the Eleventh Amendment. Edelman
      v. Jordan, supra, 415 U.S., at 667–668, 94 S.Ct., at 1357–1358.
19    No argument has been made that the Commonwealth waived its Eleventh Amendment immunity by failing specifically to seek
      dismissal of that portion of the damages action that named Commissioner Brandenburgh in his official capacity. Nor is the
      Commonwealth alleged to have done so by allowing him to enter the settlement agreement; the Commonwealth did not even have
      notice of the settlement negotiations.
20    Brief for Respondents 17; Tr. of Oral Arg. 18.


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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        10
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (2003)
46 Tex. Sup. Ct. J. 689

                                                                      Test for cause in fact, or “but for causation,” is
                                                                      whether the act or omission was a substantial
                    106 S.W.3d 724
                                                                      factor in causing the injury without which the
                Supreme Court of Texas.
                                                                      harm would not have occurred.
          MARATHON CORPORATION d/b/
                                                                      40 Cases that cite this headnote
           a Honda–Suzuki North, Petitioner,
                           v.
        John PITZNER, a mentally incompetent                    [3]   Negligence
       person, by and through his next friend and                         In general; degrees of proof
         guardian, Steven Pitzner, Respondent.                        Negligence
                                                                          Direct or circumstantial evidence
          No. 01–0870. | May 22, 2003.                                A finding of cause in fact, as component of
          | Rehearing Denied July 3, 2003.                            proximate cause, may be based on either direct or
                                                                      circumstantial evidence, but cannot be supported
Air conditioning repairman sued commercial tenant for
                                                                      by mere conjecture, guess, or speculation.
injuries allegedly sustained in fall from roof of building.
Pursuant to jury verdict, the 370th District Court, Hidalgo           26 Cases that cite this headnote
County, Fernando G. Mancias, J., entered judgment for
repairman. Tenant appealed. The Corpus Christi Court of
                                                                [4]   Appeal and Error
Appeals affirmed, 55 S.W.3d 114. On petition for review,
                                                                         Total failure of proof
the Supreme Court held that evidence was legally insufficient
to support findings that, because of building's undisputed            Appellate court will sustain a no evidence point
noncompliance with certain provisions of city's building and          of error when (1) the record discloses a complete
mechanical codes, repairman sustained electrical shock as he          absence of evidence of a vital fact; (2) the court is
attempted to start unit, reeled backwards, tripped over gas           barred by rules of law or of evidence from giving
line, and fell off roof.                                              weight to the only evidence offered to prove a
                                                                      vital fact; (3) the evidence offered to prove a vital
Judgment of Court of Appeals reversed; take-nothing                   fact is no more than a mere scintilla; or (4) the
judgment rendered.                                                    evidence establishes conclusively the opposite of
                                                                      the vital fact.

                                                                      57 Cases that cite this headnote
 West Headnotes (9)
                                                                [5]   Evidence
 [1]    Negligence                                                        Sufficiency to support verdict or finding
            Necessity of causation                                    Anything more than a scintilla of evidence is
        Negligence                                                    legally sufficient to support the trial court's
            Foreseeability                                            finding.
        Components of proximate cause are cause in fact
                                                                      11 Cases that cite this headnote
        and foreseeability.

        14 Cases that cite this headnote                        [6]   Evidence
                                                                          Sufficiency to support verdict or finding
 [2]    Negligence                                                    Some suspicion linked to other suspicion
             “But-for” causation; act without which                   produces only more suspicion, which is not the
        event would not have occurred                                 same as some evidence.
        Negligence
                                                                      9 Cases that cite this headnote
            Substantial factor



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (2003)
46 Tex. Sup. Ct. J. 689


 [7]    Electricity                                           Opinion
             Weight and sufficiency of evidence
                                                              PER CURIAM.
        Evidence
            Cause and effect                                  John Pitzner, an air conditioning repairman, sued Marathon
        Evidence was legally insufficient, in premises        Corporation d/b/a Honda–Suzuki North to recover damages
        liability action against commercial tenant by air     for injuries he alleges he sustained when he fell from the roof
        conditioning repairman to recover for injuries        of the building Marathon *726 occupied as a tenant. The trial
        allegedly sustained in fall from roof, to support     court rendered judgment on a jury verdict in Pitzner's favor,
        a finding that, because of building's undisputed      and the court of appeals affirmed. 1 Because Pitzner failed to
        noncompliance with certain provisions of city's       produce legally sufficient evidence that the alleged premises
        building and mechanical codes, repairman              defects proximately caused his injuries, we reverse the court
        sustained electrical shock as he attempted to         of appeals' judgment and render judgment that Pitzner take
        start unit, reeled backwards and tripped over gas     nothing on his claims against Marathon.
        line, and then fell off roof; expert opinions to
        that effect were based on speculation piled on        Marathon owned a Honda and Suzuki motorcycle dealership
        speculation.                                          and leased the building from which Pitzner fell. Pitzner
                                                              worked as an air conditioning repairman for a company
        7 Cases that cite this headnote
                                                              owned by Robert S. Hull. Hull's company had serviced the
                                                              two air conditioning units on the roof of Marathon's premises
 [8]    Evidence                                              for many years before Pitzner's fall. Pitzner himself had been
            Speculation, guess, or conjecture                 the primary repairman to work on the units for about two and
        Expert opinions must be supported by facts in         a half years and had been on the roof of Marathon's premises
        evidence, not conjecture.                             at least twenty-five and perhaps as many as fifty times before
                                                              sustaining his devastating injuries.
        23 Cases that cite this headnote
                                                              Pitzner's fall occurred on a summer day when the temperature
 [9]    Evidence                                              was about ninety-nine degrees. The roof was flat and made
            Circumstantial evidence                           of asphalt. Pitzner had begun work late in the afternoon. At
                                                              about 6:30 p.m., Marathon's employees closed the dealership
        In cases with only slight circumstantial evidence,
                                                              and left. They knew that Pitzner was on the roof but did not
        something else must be found in the record to
                                                              tell him that they were leaving. Pitzner was well-acquainted
        corroborate the probability of the fact's existence
                                                              with the employees from previous service calls, and in the
        or non-existence.
                                                              past when he needed access to the inside of the building, he
        10 Cases that cite this headnote                      would tell someone at Marathon. He had not told them that
                                                              day that he needed to go inside the building or that they should
                                                              stay late, as they had sometimes done.

                                                              About two hours after Marathon's employees closed the
Attorneys and Law Firms
                                                              dealership and left, Pitzner was found semi-conscious in the
 *725 Clay E. Coalson, Meredith Donnell & Abernethy,          parking lot with severe head injuries. It is undisputed that he
P.C., Gregory T. Perkes, The Perkes Law Firm, P.C., Corpus    had used a ladder to access the roof of the building, which was
Christi, Rodney W. Sipes, Law Offices of Rodney W. Sipes,     about twelve feet, ten inches high, but the ladder was missing
Edinburg, Philip S. Gordon, Gordon Law Firm, Houston, for     when Pitzner was found. There was no other access to the
Petitioner.                                                   roof, from either inside or outside the building. A screwdriver
                                                              with a burnt tip was found near Pitzner in the parking lot, but
Juan A. Magallanes, Gilberto Hinojosa and Richard Otto        there were no burns on Pitzner or other indications of contact
Burst, Magallanes & Hinojosa, P.C., Brownsville, for          with electricity. He suffered injuries to both the front and back
Respondent.                                                   of his head and to his lumbar spine.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (2003)
46 Tex. Sup. Ct. J. 689

                                                                    The jury found Marathon one hundred percent liable for
The occurrence was initially reported as an assault, with the       Pitzner's injuries, and the trial court rendered a judgment for
treating emergency room physician and a paramedic noting in         $7,731,152.59 in actual damages, including pre-judgment and
their respective reports that Pitzner suffered from numerous        post-judgment interest. The court of appeals affirmed that
blows to the head with a blunt object or appeared to have           judgment.
been beaten up. The investigating police officer disagreed,
however, and surmised that Pitzner had fallen from the              In this Court, Marathon raises a number of issues, including
building. Because of the severity and extent of his injuries,       whether: (1) it owed a duty to Pitzner; (2) it exercised control
Pitzner does not recall what happened.                              over Pitzner's work when its employees closed the dealership
                                                                    and left Pitzner on the roof; (3) it had actual or constructive
Pitzner's guardian and next friend brought suit on his              knowledge of premises defects; and (4) any premises defects
behalf against a number of defendants, including Marathon.          proximately caused Pitzner's injuries. Marathon also asserts
Although Pitzner was a resident of Dallas County, and his           that various determinations regarding its motions to transfer
injuries occurred there, suit was filed in Hidalgo County.          and for a new trial were erroneous. We address only the
Marathon filed a motion to transfer, which was overruled.           proximate cause issue.
By the time of trial, all other defendants had settled, and
Marathon was the only remaining defendant.                          [1]    [2]    [3]   The components of proximate cause are cause
                                                                    in fact and foreseeability. 2 The test for cause in fact, or
At trial Marathon posited that Pitzner may have become dizzy        “but for causation,” is whether the act or omission was
or faint from working on the asphalt roof in the heat without       a substantial factor in causing the injury “without which
any water. Photos and other evidence showed that Pitzner
                                                                    the harm would not have occurred.” 3 A finding of cause
did not have any water with him on the roof. Marathon also
                                                                    in fact may be based on either direct or circumstantial
suggested at trial that Pitzner had been the victim of foul
play. Pitzner's witnesses disagreed and opined that Marathon        evidence, 4 but cannot be supported by mere conjecture,
 *727 or the condition of its premises was responsible. An          guess, or speculation. 5
expert witness testified that, in his opinion, based on the
injuries to Pitzner's skull and spine, Pitzner was traveling         [4]    [5]     [6] Marathon contends that there is legally
backwards when he left the roof, and his upper body struck the      insufficient evidence to support the finding that Pitzner's
ground first. He also said that, in his opinion, Pitzner received   injuries were caused by premises defects. We will sustain a
an electrical shock or “a sensation that surprised him,” and        no evidence point of error when (1) the record discloses a
that he reeled backwards, tripped over a gas line on the roof,      complete absence of evidence of a vital fact; (2) the court is
and fell from the building.                                         barred by rules of law or of evidence from giving weight to the
                                                                    only evidence offered to prove a vital fact; (3) the evidence
At trial the jury was instructed that “negligence” with regard      offered to prove a vital fact is no more than a mere scintilla;
to Marathon meant:                                                  or (4) the evidence establishes conclusively the opposite of
                                                                    the vital fact. 6 Anything more than a scintilla of evidence
  (1) That at the time of the occurrence in question there was
                                                                    is legally sufficient to support the trial court's finding, but
     a dangerous condition on the premises which presented
                                                                    as we have frequently said, *728 “ ‘some suspicion linked
     an unreasonable risk of harm to John Pitzner; and,
                                                                    to other suspicion produces only more suspicion, which is
  (2) That prior to the occurrence in question, Marathon            not the same as some evidence.’ ” 7 We have also said that
     Corporation d/b/a Honda–Suzuki North knew or should            an inference stacked only on other inferences is not legally
     have known by the exercise of ordinary care about said         sufficient evidence. 8
     condition; and
                                                                    In reviewing the evidence in the light most favorable to the
  (3) That Marathon Corporation d/b/a Honda–Suzuki North,
                                                                    findings in favor of Pitzner, it is undisputed that the premises
     did not exercise reasonable care to reduce or eliminate
                                                                    did not comply with Dallas City building and mechanical
     the risk.
                                                                    codes in certain respects. Pitzner points to two of these
                                                                    violations as the cause of his fall. First, air conditioning units
                                                                    were required to have a thirty-inch work space in front of


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                3
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (2003)
46 Tex. Sup. Ct. J. 689

their access panels. The access panels of the two units on           diameter and about five inches above the surface of the roof,
Marathon's premises faced one another and were ten to twelve         and it was about six or seven feet from the units and three or
inches apart, so that the space was eighteen to twenty inches        four feet from the edge of the roof.
shy of the code requirements. The spacing from electrical
components inside the access panel was also less than the            [8]   Expert opinions must be supported by facts in evidence,
thirty-six inches required by the Dallas Electrical Code.            not conjecture. 9 The experts' opinions that Pitzner sustained
                                                                     an electrical shock and fell off the roof because of premises
 [7] Second, the air conditioning units did not have a power         defects pile speculation on speculation and inference on
disconnect on the roof so that all electrical power to the units     inference. To reach their conclusions, Pitzner's experts
could be shut off by someone working on the roof. The power          postulate that:
disconnect to the units themselves was located downstairs,
inside the building, and the main power to the building was
located on the ground outside of the building. One of the              1) the power to the air conditioning units had been shut off
experts at trial theorized that the lack of a power disconnect            inside the building so that it was not possible to start the
and the lack of thirty inches of space between the units caused           recharged unit by connecting low-voltage wires,
Pitzner to come into contact with a high-voltage line. The
central question in this appeal is whether there is any evidence            2) therefore, Pitzner must have attempted to reach into
that Pitzner came into contact with a high-voltage rather than                 the access panel to push the contactor,
a low-voltage electrical wire or any electrical wire at all.
                                                                            3) and therefore, he must have come into contact with
                                                                               a high-voltage wire,
There was unchallenged testimony from Hull, who completed
the repairs after Pitzner's fall, that Pitzner had almost finished          4) which then shocked him, causing him to step back
repairing a freon leak. All experts agreed that, typically, a                  and stumble over a gas pipeline,
repairman would start an air conditioning unit after repairing
a freon leak to fully recharge the unit. Pitzner's expert                   5) which then caused him to fall off of the roof,
witness said that it was common for repairmen to start an air
                                                                            6) all of which would not have happened if there had
conditioning unit by connecting two low-voltage lines and
                                                                               been an electrical disconnect on the unit or ten to
that it was also common for repairmen to carry around a
                                                                               twelve more inches of space between the two air
screwdriver with a burnt tip so that a new screwdriver would
                                                                               conditioning units.
not be ruined each time one was used to short a circuit. He
also testified that connecting and shorting two low-voltage            But because there is no proof that the units had been shut
lines would not work at premises like Marathon's if the air              off inside the building, it is only speculation that Pitzner
conditioning unit had been turned off downstairs. In that                reached into the access panel, came into contact with a
event, the expert said that a repairman would reach inside the           high-voltage wire, was shocked, stumbled back, and fell
access panel to push the contactor (a black bar), which would            off of the building.
bypass the control circuit and start the unit. Although it was       [9] On this record, the circumstances “could give rise to any
common for repairmen to do this, the expert said, it could
                                                                     number of inferences, none more probable than another.” 10
result in an electrical shock or flash. However, there was no
                                                                     The absence of the ladder at the scene indicates that someone
evidence of whether the power to the units had been turned
                                                                     else was present on the premises at some point. The injuries
off inside the building while Pitzner was working on them.
                                                                     to both the front and back of Pitzner's head are consistent with
                                                                     a fall but also with an assault and battery. The screwdriver's
Another expert for Pitzner testified that in his opinion, the
                                                                     burnt tip could have been burned during a previous job and
lack of space between *729 the units caused Pitzner to reach
                                                                     routinely carried by Pitzner to use on low-voltage wires, or
into the access panel at an angle that made it more likely that
                                                                     the screwdriver might have been burned on Marathon's roof
he would come into contact with a high-voltage wire, and that
                                                                     if it came into contact with a high-voltage wire inside the air
after Pitzner was shocked, he reeled backwards, tripped over
                                                                     conditioning unit. The factfinder could only speculate as to
a gas pipeline that was on the roof, and fell backwards off the
                                                                     (1) whether Pitzner actually fell from the roof, (2) whether
roof. The units were ten feet from the edge of the roof. A gas
                                                                     he actually came into contact with a high-voltage wire on
pipeline ran the length of the roof. It was about two inches in
                                                                     Marathon's roof, and (3) whether and how the lack of a


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (2003)
46 Tex. Sup. Ct. J. 689

power disconnect on the roof or the lack of additional space             Accordingly, without hearing oral argument, *730 12 we
between the air conditioning units was a substantial factor in           reverse the judgment of the court of appeals and render
causing Pitzner's injuries. As this Court has said, “in cases            judgment that Pitzner take nothing on his claim against
with only slight circumstantial evidence, something else must            Marathon.
be found in the record to corroborate the probability of the
fact's existence or non-existence.” 11 That “something else”
                                                                         Parallel Citations
is absent in this case. There is no evidence that the condition
of Marathon's premises proximately caused Pitzner's injuries.            46 Tex. Sup. Ct. J. 689



Footnotes
1      55 S.W.3d 114.
2      Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995).
3      Id.
4      Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992).
5      Boys Clubs, 907 S.W.2d at 477.
6      Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1996) (citing Juliette Fowler Homes, Inc. v. Welch Assocs.,
       Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990) (citing Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.
       L.REV. 361, 362–63 (1960))).
7      Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 210 (Tex.2002) (quoting Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925,
       927 & n. 3 (Tex.1993) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983) (“When the evidence offered to prove a
       vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla
       and, in legal effect, is no evidence.”))).
8      See generally Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex.2001); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997);
       Cont'l Coffee Prods., Inc. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319,
       324 (Tex.1984).
9      See generally Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499–500 (Tex.1995).
10     Hammerly Oaks, 958 S.W.2d at 392.
11     Lozano, 52 S.W.3d at 148.
12     TEX.R.APP. P. 59.1.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          5
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

                                                                            Remedies and procedure
                     971 S.W.2d 402                                    When state court hears admiralty case, that court
                 Supreme Court of Texas.                               occupies essentially same position occupied by
                                                                       federal court sitting in diversity, and state court
                MARITIME OVERSEAS                                      thus must apply substantive federal maritime law
              CORPORATION, Petitioner,                                 but follow state procedure.
                          v.
                                                                       13 Cases that cite this headnote
              Richard ELLIS, Respondent.

              NO. 94–1057. | Argued Nov.                         [2]   Labor and Employment
        5, 1997. | Decided April 16, 1998.                                 Weight and sufficiency of evidence
         | Rehearing Overruled July 3, 1998.                           Under Federal Employers' Liability Act (FELA),
                                                                       causation burden is not common law proximate
Steward's assistant sued shipowner under Jones Act and
                                                                       cause standard but rather is “featherweight
under general maritime law, alleging that he was suffering
                                                                       burden” of whether proof justifies with reason
from delayed neurotoxic effects caused by exposure to toxic
                                                                       the conclusion that employer negligence played
chemical pesticide. The 165th District Court, Harris County,
                                                                       any part, even slightest, in producing injury
Kenneth Harrison, J., entered judgment on jury verdict
                                                                       for which claimant seeks damages. Federal
awarding steward actual, punitive, and exemplary damages,
                                                                       Employers' Liability Act, § 1 et seq., 45 U.S.C.A.
and prejudgment interest, for total of approximately $12.6
                                                                       § 51 et seq.
million. Shipowner appealed. On motion for rehearing, en
banc, the Houston Court of Appeals, 14th District, 886                 19 Cases that cite this headnote
S.W.2d 780, affirmed in part and reversed and rendered in
part. Application for writ of error was filed. The Supreme
Court, Baker, J., held that: (1) Court of Appeals followed       [3]   Seamen
appropriate standards of review by analyzing shipowner's                   Personal Injuries
challenge to causation under “featherweight” burden of                 Jones Act expressly incorporates Federal
negligence and causation under Jones Act and by reviewing              Employers' Liability Act (FELA) and case law
amount of damages awarded under traditional factual                    developing that statute, and thus, causation
sufficiency review under Texas law, and (2) shipowner did              standard under Jones Act is same as that under
not preserve for appellate review its claim that testimony             FELA. Jones Act, 46 App.U.S.C.A. § 688;
presented by steward's experts was not scientifically reliable         Federal Employers' Liability Act, § 1 et seq., 45
and therefore presented no evidence of causation.                      U.S.C.A. § 51 et seq.

Affirmed.                                                              3 Cases that cite this headnote


Gonzalez, J., filed a concurring opinion in which Abbott, J.,    [4]   Appeal and Error
joined in part.                                                           Questions of fraud or negligence
                                                                       Federal Employers' Liability Act's (FELA)
Hecht, J., filed a dissenting opinion in which Phillips, C.J.,         standard of appellate review applies in Jones
joined.                                                                Act cases. Jones Act, 46 App.U.S.C.A. § 688;
                                                                       Federal Employers' Liability Act, § 1 et seq., 45
                                                                       U.S.C.A. § 51 et seq.
 West Headnotes (21)
                                                                       2 Cases that cite this headnote

 [1]    Admiralty
                                                                 [5]   Appeal and Error
           Effect of State Laws
                                                                          Questions of fraud or negligence
        Admiralty


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

        Purpose of Jones Act standard of appellate                  Standard of review for excessive damages
        review is to vest jury with complete discretion             complaint is factual sufficiency of evidence,
        on factual issues about liability. Jones Act, 46            and court of appeals should employ same test
        App.U.S.C.A. § 688.                                         for determining excessive damages as for any
                                                                    factual sufficiency question.
        3 Cases that cite this headnote
                                                                    59 Cases that cite this headnote
 [6]    Appeal and Error
           Sufficiency of Evidence in Support                [10]   Appeal and Error
        Appellate court's review in Jones Act case                     Extent of Review
        is complete once court determines that some                 When considering factual sufficiency challenge
        evidence about which reasonable minds could                 to jury's verdict, courts of appeals must consider
        differ supports verdict; appellate court may not            and weigh all of the evidence, not just that
        conduct traditional factual sufficiency review              evidence which supports verdict.
        of jury's liability finding under Texas “weight
        and preponderance” standard. Jones Act, 46                  191 Cases that cite this headnote
        App.U.S.C.A. § 688.
                                                             [11]   Appeal and Error
        40 Cases that cite this headnote
                                                                       Clear or palpable weight or preponderance
                                                                    Court of appeals can set aside verdict only if it is
 [7]    Appeal and Error                                            so contrary to overwhelming weight of evidence
           Personal injuries                                        that verdict is clearly wrong and unjust.
        Appeal and Error
           Reducing amount of recovery                              202 Cases that cite this headnote

        State appellate courts have power to review
        excessiveness of damages and to order remittitur     [12]   Appeal and Error
        in Federal Employers' Liability Act (FELA)                     Credibility of Witnesses
        actions and, by implication, in Jones Act cases as          Appeal and Error
        well. Jones Act, 46 App.U.S.C.A. § 688; Federal                Conclusiveness in General
        Employers' Liability Act, § 1 et seq., 45 U.S.C.A.
                                                                    Court of appeals is not fact finder and
        § 51 et seq.
                                                                    accordingly may not pass upon witnesses'
        2 Cases that cite this headnote                             credibility or substitute its judgment for that
                                                                    of jury, even if evidence would clearly support
                                                                    different result.
 [8]    Appeal and Error
           Extent of Review                                         279 Cases that cite this headnote
        In reviewing excessiveness of damages and
        whether to order remittitur in Jones Act cases,      [13]   Appeal and Error
        appellate court must make its own detailed                     Form and requisites
        appraisal of evidence bearing on damages. Jones
                                                                    If court of appeals determines that evidence
        Act, 46 App.U.S.C.A. § 688.
                                                                    supports jury's verdict, it is not required to detail
        Cases that cite this headnote                               all evidence supporting judgment when it affirms
                                                                    trial court's judgment for actual damages.

 [9]    Appeal and Error                                            7 Cases that cite this headnote
           Excessive verdict
                                                             [14]   Appeal and Error



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

             Form and requisites                                        Necessity of timely objection
        When reversing trial court's judgment for factual          To preserve complaint that scientific evidence
        insufficiency, court of appeals must detail all            is unreliable and thus, constitutes no evidence,
        evidence relevant to issue and clearly state               party must object to evidence before trial or when
        why jury's finding is factually insufficient or            evidence is offered; without requiring timely
        so against great weight and preponderance of               objection to reliability of scientific evidence,
        evidence that it is manifestly unjust.                     offering party is not given opportunity to cure
                                                                   any defect that may exist, and will be subject to
        53 Cases that cite this headnote                           trial and appeal by ambush.

                                                                   71 Cases that cite this headnote
 [15]   Appeal and Error
           Form and requisites
        When reversing trial court's judgment for factual   [19]   Appeal and Error
        insufficiency, court of appeals must explain how                Opinion evidence and hypothetical
        contrary evidence greatly outweighs evidence               questions
        supporting verdict.                                        Reviewing courts may not exclude expert
                                                                   scientific evidence after trial to render judgment
        14 Cases that cite this headnote                           against offering party because that party relied
                                                                   on fact that evidence was admitted.
 [16]   Appeal and Error
                                                                   11 Cases that cite this headnote
           Measure and amount of damages
        Question of whether damages are excessive
        and that remittitur is appropriate is factual       [20]   Appeal and Error
        determination made final in court of appeals, and             Necessity of timely objection
        thus, Supreme Court lacks jurisdiction to review           Shipowner did not preserve for appellate review
        such findings. Vernon's Ann.Texas Const. Art. 5,           its claim that testimony presented by steward's
        § 6; V.T.C.A., Government Code, § 22.225(a).               experts in Jones Act case was not scientifically
                                                                   reliable and therefore presented no evidence to
        8 Cases that cite this headnote                            prove that shipowner's negligence concerning
                                                                   pesticide caused delayed neurotoxicity and
 [17]   Appeal and Error                                           steward's long term health conditions, where
           Questions of fraud or negligence                        shipowner did not make any objection to
                                                                   scientific reliability of experts before or at
        Appeal and Error
                                                                   trial until after jury verdict. Jones Act, 46
           Personal injuries
                                                                   App.U.S.C.A. § 688.
        Court of appeals followed appropriate standards
        of review in analyzing shipowner's challenges              66 Cases that cite this headnote
        to steward's recovery under Jones Act by
        analyzing shipowner's challenge to causation
                                                            [21]   Appeal and Error
        under “featherweight” burden of negligence and
                                                                      Objections to evidence and witnesses
        causation under Jones Act and by reviewing
        amount of damages awarded to steward under                 When reliability of scientific evidence is
        traditional factual sufficiency review under               contested, attempts at persuasion on weight of
        Texas law. Jones Act, 46 App.U.S.C.A. § 688.               evidence before jury and reiterated on appeal
                                                                   cannot amount to preservation of error about
        9 Cases that cite this headnote                            reliability of evidence; to allow otherwise would
                                                                   impermissibly permit party to strip away trial
                                                                   court's role as gatekeeper in the first instance
 [18]   Appeal and Error
                                                                   when a party wishes to contest reliability of


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      3
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

         scientific evidence, would deprive proffering
         party of opportunity to cure any defects in its
                                                                                             A. FACTS
         evidence, and could require appellate courts to
         make decisions about reliability without fully            Ellis served as a steward's assistant in the housekeeping and
         developed record.                                         galley department aboard the S/T Overseas Alaska, a 700–
                                                                   foot oil tanker owned by Maritime. In late August 1982, while
         28 Cases that cite this headnote
                                                                   the ship was at sea, the chief steward attempted to control a
                                                                   roach problem by spraying Diazinon, an industrial strength
                                                                   pesticide, in small, enclosed, unventilated areas, including the
                                                                   pantry, a storeroom and other nearby areas. The chief steward
Attorneys and Law Firms                                            did not dilute the Diazinon properly. On the morning after
                                                                   the spraying, crew members noticed a strong insecticide odor.
*404 Linda Broocks, Thomas B. Greene, III, Houston, Joe
                                                                   The captain ordered several crew members, including Ellis, to
R. Greenhill, Austin, Marc A. Antonetti, Jane Nenninger
                                                                   clean up the excess Diazinon. Ellis participated in the cleanup
Bland, Houston, Margaret Niver McGann, Salt Lake City,
                                                                   for about five hours without wearing inhalation protective
UT, Sally Mann Romano, Houston, for Petitioner.
                                                                   gear or special equipment to protect his skin from contact with
John M. O'Quinn, Gary M. Riebschlager, Eugene A. Cook,             the insecticide. He was exposed to Diazinon levels up to 200
Kendall C. Montgomery, Mareen McPherson Spector, Joe               times over what is considered safe for human exposure.
H. Reynolds, Gael Plauché, Christian A. Steed, Houston, for
Respondent.                                                        After the cleanup, Ellis complained of a headache, eye
                                                                   irritation, and a runny nose. The ship reached New Orleans
Opinion                                                            two days later, and Ellis was sent to the New Orleans General
                                                                   Hospital Emergency Room. At the hospital, emergency room
BAKER, Justice, delivered the opinion of the Court, in which       personnel found Ellis had myosis with pupil constriction,
ENOCH, SPECTOR, ABBOTT and HANKINSON, Justices,                    muscle twitching, and muscle weakness along with other
join.                                                              symptoms. Ellis's blood tests revealed that he had depressed
                                                                   levels of acetylcholinesterase, an essential enzyme. The
This case involves Richard Ellis's Jones Act claims for
                                                                    *405 insecticide Diazinon is an organophosphate, which is
injuries he sustained aboard a vessel owned by Maritime
                                                                   toxic to humans in varying degrees. The emergency room
Overseas Corporation. The trial court rendered judgment on
                                                                   doctor testified at trial that on a scale of one to ten, with
the jury's verdict for Ellis for actual and exemplary damages
                                                                   one representing normal health and ten representing death,
and awarded prejudgment interest. The court of appeals
                                                                   Ellis suffered organophosphate exposure of a level of six to
affirmed the actual damages award, but reversed the awards
                                                                   seven. The examining physician concluded that Ellis suffered
of exemplary damages and prejudgment interest.
                                                                   from Diazinon exposure and gave Ellis medication for eye
                                                                   problems. The examining physician did not hospitalize Ellis,
Maritime asserts that the court of appeals used an improper
                                                                   but she recommended follow-up care. About a month later,
standard to review the factual sufficiency of Ellis's damages
                                                                   Ellis saw another doctor for continuing problems with his
evidence. Maritime also contends that the court of appeals
                                                                   eyes.
should have applied a Daubert–Robinson–Havner review to
determine whether any well-founded scientific methodology
                                                                   Months after his exposure to Diazinon, Ellis began to
supported some of the actual damages award. 1 We conclude,
                                                                   complain of memory defects, irritability, gastrointestinal
under the facts of this case, that the court of appeals properly
                                                                   problems, anxiousness, fatigue, indigestion, nausea, muscle
disposed of Maritime's claims. Accordingly, we affirm the
                                                                   pain and stiffness, leg cramps, dizziness, insomnia, high
court of appeals' judgment.
                                                                   blood pressure, and black-out spells. At trial, Ellis's experts
                                                                   testified that his Diazinon exposure had caused him to suffer
                                                                   from “delayed neurotoxicity” or “neuropathy.” Ellis's experts
                     I. BACKGROUND                                 also testified that his condition is irreversible.




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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

                                                                  under its factual sufficiency argument, Maritime argues that
                                                                  there is no evidence of long term injury from delayed
              B. PROCEDURAL HISTORY
                                                                  neurotoxicity. In essence, Maritime would have this Court
About ten months after his exposure to Diazinon, Ellis sued       conduct a no evidence review of the evidence about delayed
Maritime for gross negligence under the Jones Act and             neurotoxicity within the Court's review of whether the court
unseaworthiness under general maritime law. Based on the          of appeals properly reviewed the factual sufficiency of the
jury's verdict, the trial court rendered judgment for Ellis       evidence. We decline to do so.
for $8,576,000 in actual damages, $1,000,000 in punitive
damages, $1,000,000 in exemplary damages for failure to
pay maintenance and cure, and $1,871,728 in prejudgment                        II. COURT OF APPEALS'
interest. The damages totaled about $12.6 million. Maritime                 FACTUAL SUFFICIENCY REVIEW
filed post-verdict motions for judgment notwithstanding the
verdict and new trial or, in the alternative, for remittitur.
Maritime alleged that the actual and exemplary damages were                 A. THE JONES ACT 46 U.S.C. § 688
excessive because the evidence was factually insufficient to
                                                                   [1] The Jones Act provides a cause of action for maritime
support the damage awards. The trial court overruled all of
                                                                  workers injured by an employer's negligence. Federal law
Maritime's motions.
                                                                  provides *406 that a party asserting an admiralty action
                                                                  may bring the action in state court. See 28 U.S.C. § 1333(1).
In the court of appeals, Maritime only complained about the
                                                                  When a state court hears an admiralty case, that court occupies
trial court's denial of its motion for new trial and motion
                                                                  essentially the same position occupied by a federal court
for remittitur; it did not challenge the trial court's denial
                                                                  sitting in diversity: the state court must apply substantive
of its motion for judgment notwithstanding the verdict. The
                                                                  federal maritime law but follow state procedure. See Texaco
case was first argued before a three-judge panel of the court
                                                                  Ref. & Mkt. Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64
of appeals. The panel majority held that the evidence was
                                                                  (Tex.1991); see also General Chem. Corp. v. De La Lastra,
factually insufficient to support the damages award. There
                                                                  852 S.W.2d 916, 920 (Tex.1993).
was a dissent without an opinion. Later, the court of appeals
granted Ellis's motion for en banc rehearing. Following
                                                                   [2]     [3] Under the Federal Employers' Liability Act
argument, the en banc court affirmed the actual damages
                                                                  (FELA), a related statute, the causation burden is not the
award, but reversed the trial court's judgment for exemplary
                                                                  common law proximate cause standard. Rather, the causation
damages and prejudgment interest. 886 S.W.2d 780.
                                                                  burden is “whether the proof justifies with reason the
                                                                  conclusion that employer negligence played any part, even
This Court granted Maritime's application for writ of error
                                                                  the slightest, in producing the injury for which the claimant
on two issues. First, Maritime contends that the court of
                                                                  seeks damages.” Rogers v. Missouri Pac. R.R., 352 U.S.
appeals erred by not using the proper standard to review
                                                                  500, 506–07, 77 S.Ct. 443, 448–49, 1 L.Ed.2d 493 (1957);
the factual sufficiency of Ellis's actual damages evidence.
                                                                  Landry v. Oceanic Contractors Inc., 731 F.2d 299, 302 (5
Maritime argues that the court of appeals should have applied
                                                                  th Cir.1984). This burden has been termed “featherweight.”
a traditional factual sufficiency review to the damages award
                                                                  See Johnson v. Offshore Exp., Inc., 845 F.2d 1347, 1352
instead of a featherweight causation standard because the
                                                                  (5 th Cir.1988); Smith v. Trans–World Drilling Co., 772
trial court submitted the damages question to the jury based
                                                                  F.2d 157, 162 (5 th Cir.1985); see also Sentilles v. Inter–
upon a preponderance of the evidence burden of proof.
                                                                  Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4
Second, Maritime contends, within the framework of its
                                                                  L.Ed.2d 142 (1959). The Jones Act expressly incorporates
factual sufficiency review argument, that the court of appeals
                                                                  FELA and the case law developing that statute. See Ferguson
should have examined whether any well-founded scientific
                                                                  v. Moore–McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457,
methodology supported the jury's actual damages award.
                                                                  1 L.Ed.2d 511 (1957). Thus, the causation standard under the
                                                                  Jones Act is the same as that under FELA. See American
At oral argument in this Court, Maritime stated that it was not
                                                                  Dredging Co. v. Miller, 510 U.S. 443, 456, 114 S.Ct. 981,
making a no evidence complaint. Rather, Maritime asserted
                                                                  989–90, 127 L.Ed.2d 285 (1994); see also Brown & Root, Inc.
that its only complaint is that the court of appeals did not
                                                                  v. Wade, 510 S.W.2d 408, 410 (Tex.Civ.App.—Houston [14
properly conduct a factual sufficiency review. However,
                                                                  th Dist.] 1974, writ ref'd n.r.e.).


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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

                                                                847–48 (Tex.1990); Pope v. Moore, 711 S.W.2d 622, 624
                                                                (Tex.1986). The court of appeals should employ the same
                                                                test for determining excessive damages as for any factual
               B. STANDARDS OF REVIEW
                                                                sufficiency question. See Pope, 711 S.W.2d at 624. When
                                                                considering a factual sufficiency challenge to a *407 jury's
                    1. Jones Act Liability                      verdict, courts of appeals must consider and weigh all of the
                                                                evidence, not just that evidence which supports the verdict.
 [4]     [5]    [6] Texas courts have long recognized that in See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Lofton v.
addition to the burden of proof being less stringent, the       Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). A court
standard of appellate review in a Jones Act case is also less
                                                                of appeals can set aside the verdict only if it is so contrary
stringent than under the common law. See Texas & Pac.           to the overwhelming weight of the evidence that the verdict
Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex.1972); Brown &         is clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772;
Root, Inc., 510 S.W.2d at 410. As with the law on causation,    Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of
FELA's standard of appellate review applies in Jones Act        appeals is not a fact finder. Accordingly, the court of appeals
cases. See Ferguson, 352 U.S. at 523, 77 S.Ct. at 458. Thus,    may not pass upon the witnesses' credibility or substitute its
the purpose of the Jones Act standard of review is to vest      judgment for that of the jury, even if the evidence would
the jury with complete discretion on factual issues about       clearly support a different result. See Pool v. Ford Motor Co.,
liability. See Rogers, 352 U.S. at 506–07, 77 S.Ct. at 448–49.  715 S.W.2d 629, 634 (Tex.1986).
Once the appellate court determines that some evidence about
which reasonable minds could differ supports the verdict,        [13] [14] [15] If the court of appeals determines that the
the appellate court's review is complete. See Roberts, 481      evidence supports the jury's verdict, it is not required to detail
S.W.2d at 800 (citing Lavender v. Kurn, 327 U.S. 645, 66        all the evidence supporting the judgment when it affirms the
S.Ct. 740, 90 L.Ed. 916 (1946)). Essentially, a Texas court     trial court's judgment for actual damages. See Ellis County
of appeals may not conduct a traditional factual sufficiency    State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994). On
review of a jury's liability finding under the Texas “weight    the other hand, when reversing a trial court's judgment for
and preponderance” standard. See Roberts, 481 S.W.2d            factual insufficiency, the court of appeals must detail all the
at 801; see also Brown & Root, Inc., 510 S.W.2d at 410.         evidence relevant to the issue and clearly state why the jury's
Rather, courts of appeals must apply the less stringent federal finding is factually insufficient or so against the great weight
standard of review.                                             and preponderance of the evidence that it is manifestly unjust.
                                                                  See Keever, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635.
                                                                  The court of appeals must explain how the contrary evidence
          2. Excessive Damages and Remittiturs                    greatly outweighs the evidence supporting the verdict. See
                                                                  Keever, 888 S.W.2d at 794; Pool, 715 S.W.2d at 635.
 [7] [8] Texas courts of appeal have the power to review
excessiveness of damages and to order remittitur in FELA           [16] Because the question of whether damages are excessive
actions and, by implication, in Jones Act cases as well.          and that a remittitur is appropriate is a factual determination
See Sweet v. Port Terminal R.R., 653 S.W.2d 291, 294–95           made final in the court of appeals, this Court lacks jurisdiction
(Tex.1983); c.f. Nobles v. Southern Pac. Transp. Co., 731         to review such findings. TEX. CONST. art. V, § 6; TEX.
S.W.2d 697, 699 (Tex. App—Houston [14 th Dist.] 1987, writ        GOV'T CODE, § 22.225(a); Akin v. Dahl, 661 S.W.2d 917,
ref'd n.r.e.); see also Nairn v. National R.R. Passenger Corp.,   921 (Tex.1983); Sweet, 653 S.W.2d at 295.
837 F.2d 565, 566 (2d Cir.1988). The appellate court must
make its own “detailed appraisal of the evidence bearing on
damages.” Nairn, 837 F.2d at 567, (quoting Grunenthal v.
Long Island R.R., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21                               C. ANALYSIS
L.Ed.2d 309 (1968)).                                      Maritime concedes that the Jones Act imposes a reduced
                                                          burden in proving a defendant's liability, but asserts the Act
 [9]   [10]   [11]    [12] The standard of review for andoes not relieve a plaintiff of the burden of proving damages
excessive damages complaint is factual sufficiency of the by a preponderance of the evidence. Initially, Maritime
evidence. See Rose v. Doctors Hosp., 801 S.W.2d 841,      contends that by submitting the damages question based upon



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

a preponderance of the evidence, Ellis waived any argument                     that overexposure to Diazinon is toxic
that a featherweight standard applies to the court of appeals'                 to humans and can cause damage to
review of damages. See De La Lastra, 852 S.W.2d at 916.                        the nervous system on some temporary
Maritime further argues that both federal and Texas appellate                  basis. Thus, appellant does not contest
courts have reviewed damage awards for factual sufficiency                     damages for the medical treatment
and excessiveness using traditional standards of review in                     appellee received in New Orleans
Jones Act cases. See Nairn, 837 F.2d at 566; Sweet, 653                        in 1982 or for the loss of two
S.W.2d at 294–95. Maritime asserts that the court of appeals                   days of work. Appellant does contest
used the wrong standard when it reviewed the actual damages                    damages awarded for appellee's claim
award in this case. We disagree. As explained below, the                       of delayed and permanent neurotoxic
court of appeals properly analyzed this case in the context of                 damage on the ground that appellee's
Maritime's point of error and argument in that court.                          expert testimony was speculative and
                                                                               not based on reasonable medical
The record shows that during trial, Ellis offered the testimony                probability. Essentially, appellant's
of five expert medical doctors, four of whom had examined                      attack is directed at the issue of
and treated Ellis. Maritime did not challenge the testimony                    causation as to the delayed and
of any of the five experts at trial. All five expert witnesses                 permanent damage found by the jury
testified that Ellis's severe and lengthy exposure to Diazinon                 based on the circumstantial and expert
caused his prolonged neural damages. They expressed                            evidence before them.
their opinions on bases ranging from reasonable medical
probability to without a doubt. In essence, all five experts       886 S.W.2d at 783 (emphasis added). Because Maritime
testified that Ellis's prolonged exposure to excessive levels of   contended there was factually insufficient evidence to support
Diazinon due to Maritime's negligence caused the long-term         the damages award, the court of appeals considered all the
effects of delayed neurotoxicity. Maritime presented three         evidence both in favor of and contrary to the judgment.
medical doctor experts, only one of whom had treated Ellis.
These three experts testified that Ellis's injuries were not a      [17] The court of appeals detailed the material testimony
delayed effect of his Diazinon exposure.                           of all eight experts—five for Ellis and three for Maritime.
                                                                   After doing so, the court of appeals first concluded that
The jury answered “yes” to the question of whether                 the evidence more than satisfied the Jones Act standard for
Maritime's negligence played any part, even the slightest,         causation. 886 S.W.2d at 791. The court of appeals stated that
in producing injury or illness to Ellis. The jury then found,      sufficient evidence justified the jury's finding that Maritime's
based on a preponderance of the evidence, that $8,576,000 in       admitted negligence in exposing Ellis to extreme levels of a
actual damages would fairly and reasonably compensate Ellis        dangerous pesticide did play a part in producing the injury
for the injuries or illnesses resulting from the occurrence in     for which the damages were sought and awarded. 886 S.W.2d
question. The trial court rendered judgment for Ellis on the       at 791. In addition to concluding that the evidence satisfied
jury's verdict for the actual damages together with exemplary      the “featherweight” burden of negligence and causation in
and punitive damages and prejudgment interest.                     Jones Act cases, the court of appeals also concluded that
                                                                   the evidence was sufficient under the higher standard of
 *408 In the court of appeals, Maritime contended the trial        proof for causation under Texas common law. The court of
court erred in denying its motion for new trial because            appeals followed applicable law when it analyzed Maritime's
factually insufficient evidence supported the jury's finding       challenge to causation instead of damages and when it
that Ellis suffered $8,576,000 in actual damages, and because      reviewed the amount of the damages award under traditional
the amount was excessive. However, as the court of appeals         factual sufficiency review. See Rogers, 352 U.S. at 506–07,
recognized, Maritime's argument to that court was not about        77 S.Ct. at 448–49; Nairn, 837 F.2d at 566; Landry, 731
the amount of actual damages the jury awarded, but about           F.2d at 302; Sweet, 653 S.W.2d at 294–95. Accordingly, we
causation. The court of appeals observed:                          conclude that the court of appeals followed the appropriate
                                                                   standard of review in analyzing Maritime's claims. Again,
             Appellant concedes that appellee                      this Court has no jurisdiction to decide whether the court of
             suffered short-term effects from the                  appeals reached the correct result—that is whether the actual
             exposure to Diazinon and in effect,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            7
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

damages award was excessive. See Akin, 661 S.W.2d at 921.           then explained the trial court's role as a “gatekeeper,” and
We reject Maritime's first argument.                                recognized that “[t]he trial court is responsible for making the
                                                                    preliminary determination of whether the proffered testimony
                                                                    meets the standards [for scientific reliability].” Robinson,
                                                                    923 S.W.2d at 556. Like Daubert, Robinson' s focus is on
          III. COURT OF APPEALS' REVIEW
                                                                    a trial court's discretion in admitting or excluding scientific
               OF SCIENTIFIC EVIDENCE
                                                                    evidence after a party lodges an objection to the reliability of
Maritime's second contention is that the court of appeals           its opponent's scientific expert testimony before trial or when
erred because it did not examine whether any well-founded           the evidence is offered. See Robinson, 923 S.W.2d at 557.
scientific evidence supports the actual damages award.
Maritime argues that the federal standard articulated in            Under Havner, a party may complain on appeal that scientific
Daubert and the state standard articulated in Robinson and          evidence is unreliable and thus, no evidence to support a
Havner are the proper standards for reviewing the sufficiency       judgment. See Havner, 953 S.W.2d 706. Havner recognizes
of Ellis's damages evidence. Significantly, Maritime does           that a no evidence complaint may be sustained when the
not complain about the trial court's admission of any of            record shows one of the following: (a) a complete absence
the scientific evidence from any of Ellis's five experts.           of a vital fact; (b) the reviewing court is barred by rules of
Rather, Maritime's position is that if the court of appeals         law or evidence from giving weight to the only evidence
applied a proper scientific methodology test to Ellis's experts'    offered to prove a vital fact; (c) the evidence offered to prove
testimony, the testimony would be legally insufficient to           a vital fact is no more that a mere scintilla; or (d) the evidence
show that the long term conditions Ellis claims he suffers          establishes conclusively the opposite of the vital fact. See
were caused by delayed neurotoxicity. Thus, Maritime                Havner, 953 S.W.2d at 711 (citing Robert W. Calvert, “No
concludes, by way of its complaints about the court of appeals'     Evidence” and “Insufficient Evidence” Points of Error, 38
factual sufficiency review, that there is no evidence of some       TEX. L.REV. 361, 362–63 (1960)). Here, like in Havner,
of Ellis's actual damages. Maritime's argument is flawed.           Maritime contends that because Ellis's scientific evidence “is
                                                                    not reliable, it is not evidence,” and the court of appeals and
                                                                    this Court are “barred by rules of law or of evidence from
                                                                    giving weight” to Ellis's experts' testimony. See Havner, 953
          A. DAUBERT-ROBINSOn-HAVNER                                S.W.2d at 711, 713.
In Daubert, the Supreme Court considered “the standard for
admitting expert scientific testimony in a federal trial.” *409
Daubert, 509 U.S. at 579, 113 S.Ct. 2786, (emphasis added).                        B. ERROR PRESERVATION
Daubert' s focus is on the trial court's discretion, when faced
with an objection to scientific evidence, to admit or exclude        [18] To preserve a complaint that scientific evidence is
such evidence before or during the trial. The Supreme Court         unreliable and thus, no evidence, a party must object to the
added that when the trial court concludes that the disputed         evidence before trial or when the evidence is offered. See
scientific evidence is insufficient to go to the jury, the trial    Robinson, 923 S.W.2d at 557; see also Havner, 953 S.W.2d
court may grant a summary judgment or a directed verdict.           at 713 (“If the expert's scientific testimony is not reliable, it
Daubert, 509 U.S. at 595, 113 S.Ct. 2786. However, Daubert          is not evidence.”). Without requiring a timely objection to the
does not support the proposition that a reviewing court can in      reliability of the scientific evidence, the offering party is not
effect exclude expert testimony that was not objected to based      given an opportunity to cure any defect that may exist, and
on its scientific reliability before trial or when it was offered   will be subject to trial and appeal by ambush. See Marbled
at trial and then render judgment against the offering party.       Murrelet v. Babbitt, 83 F.3d 1060, 1066–67 (9 th Cir.1996),
                                                                    cert. denied, 519 U.S. 1108, 117 S.Ct. 942, 136 L.Ed.2d 831
Similarly, in Robinson, we granted DuPont's application for         (1997); Sumitomo Bank v. Product Promotions, Inc., 717 F.2d
writ of error to decide “the appropriate standard for the           215, 218 (5th Cir.1983).
admission of scientific expert testimony.” See Robinson, 923
S.W.2d at 554 (emphasis added). Like the Supreme Court               [19] Reviewing courts may not exclude expert scientific
in Daubert, we recognized the special nature of scientific          evidence after trial to render a judgment against the offering
expert testimony. See Robinson, 923 S.W.2d at 554–58. We            party because that party relied on the fact that the evidence



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

was admitted. Babbitt, 83 F.3d at 1067. To hold otherwise             In Daubert, Merrell Dow moved for summary judgment. The
is simply “unfair.” Babbitt, 83 F.3d at 1067. As the Babbitt          trial court granted summary judgment on the grounds that
court explained:                                                      the Dauberts did not establish that the principle on which
                                                                      their experts based their opinions was generally accepted by
  [P]ermitting [a party] to challenge on appeal the reliability       the relevant scientific community. See Daubert v. Merrell
  of [the opposing party's] scientific evidence under Daubert,        Dow Pharms., Inc., 727 F.Supp. 570, 572 (S.D.Cal.1989). On
  in the guise of an insufficiency-of-the-evidence argument,          appeal, the United States Supreme Court held that the criteria
  would give [appellant] an unfair advantage. [Appellant]             is whether the scientific evidence is relevant and reliable and
  would be ‘free to gamble on a favorable judgment before             thus admissible. The Court remanded Daubert to the circuit
  the trial court, knowing that [it could] seek reversal on           court to determine whether the expert testimony rested on a
  appeal [despite its] failure to [object at trial].’                 reliable foundation and was relevant. See Daubert, 509 U.S.
                                                                      at 597, 113 S.Ct. 2786. On remand, the Ninth Circuit held
Babbitt, 83 F.3d at 1067 (citations omitted). Thus, to prevent
                                                                      that the testimony about Bendectin's effect was inadmissible
trial or appeal by ambush, we hold that the complaining party
                                                                      under Federal Rule of Evidence 702.
must *410 object to the reliability of scientific evidence
before trial or when the evidence is offered.
                                                                      In Robinson, the trial court granted DuPont's pretrial motion
                                                                      and excluded the Robinsons' expert testimony on the ground
                                                                      that it was neither relevant nor based upon a reliable
                        C. ANALYSIS                                   foundation. See Robinson, 923 S.W.2d at 552. At trial,
                                                                      the Robinsons again attempted to introduce their expert's
In this case, Maritime did not object to the reliability of           testimony but the trial court abided by its earlier ruling and
Ellis's scientific evidence until after the jury verdict. Maritime    excluded that testimony. The Robinsons then offered a bill
nevertheless argues that the court of appeals should have             of exception on their expert's testimony. At the close of
applied the Daubert–Robinson–Havner 2 rationale as part               evidence, the trial court granted DuPont's motion for directed
of its factual sufficiency review. These cases do not support         verdict. The Robinsons appealed on the grounds that the
Maritime's argument because: (1) each involve admissibility           trial court abused its discretion by excluding their expert's
or no evidence considerations, and (2) in each case the               testimony. This Court followed Daubert and held that a
defendants timely objected to the scientific evidence.                party must show, in addition to showing an expert witness is
                                                                      qualified, that the expert's testimony is relevant and reliable.
Daubert and Havner involve the anti-nausea drug, Bendectin.           See Robinson, 923 S.W.2d at 556. Accordingly, although
In these two cases, plaintiffs asserted that Bendectin caused         Robinson involves the exclusion of expert testimony, DuPont
birth defects. See Daubert, 509 U.S. at 591, 113 S.Ct. 2786;          timely objected to the expert testimony before trial and when
Havner, 953 S.W.2d at 708. Robinson involved a fungicide              the evidence was offered. Unlike Maritime, DuPont did not
known as Benlate that DuPont manufactured. The Robinsons              wait until after the verdict to challenge the reliability of its
contended that the Benlate they used was contaminated and             opponent's expert testimony.
damaged their pecan crop. See Robinson, 923 S.W.2d at 551.
In all three cases, causation was hotly contested, as it is in this   In Havner, Merrell Dow objected to the Havners' scientific
case, on delayed effects. In all three cases, the manufacturer        evidence “at several junctures” during the litigation. See
objected before trial or when the evidence was offered that           Havner, 953 S.W.2d at 708. Merrell Dow moved for summary
the plaintiffs' scientific expert testimony on causation was          judgment contending there was no scientifically reliable
inadmissible because it was neither relevant nor based upon a         evidence that Bendectin caused limb reduction birth defects
reliable foundation. Daubert, 509 U.S. at 591, 113 S.Ct. 2786;        or that *411 Bendectin caused the plaintiff's birth defect.
Robinson, 923 S.W.2d at 552; Havner, 953 S.W.2d at 708–09.            Cf. General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct.
Thus, the manufacturers in all three cases properly preserved         512, 139 L.Ed.2d 508 (1997) (affirming summary judgment
their claims that the expert testimony was inadmissible and           when plaintiff's expert evidence did not show link between
was no evidence of causation because it was not relevant and          polychlorinated biphenyls (PCBs) and cancer). The trial
not based on well-founded scientific methodology.                     court held a hearing at which the scientific reliability of
                                                                      the Havner's summary judgment evidence was extensively
                                                                      aired. The trial court then denied Merrell Dow's motion for



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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

summary judgment. Before trial, Merrell Dow filed a motion
in limine again questioning the scientific reliability of the
Havner's expert testimony. The trial court denied Merrell
                                                                               IV. RESPONSE TO THE DISSENT
Dow's motion in limine. During trial, Merrell Dow objected
to the admission of the Havners' scientific evidence. Merrell       We do not disagree with the dissent that “Maritime Overseas'
Dow also unsuccessfully moved for directed verdict when the         position has always been ... that no reliable scientific evidence
Havners closed their case, complaining about the Havners'           shows that Diazinon can cause long-term neurotoxicity.”
scientific evidence. The trial court overruled Merrell Dow's        971 S.W.2d at 415. However, at trial, rather than make
objections and denied its motion for directed verdict. In           objections to the trial court, Maritime chose to present
Havner, while the issue was whether the scientific evidence         this argument to the jury by challenging the reliability of
was legally sufficient to be some evidence of causation,            Ellis's scientific evidence via vigorous cross-examination,
Merrell Dow timely challenged the experts' testimony at             presenting contrary evidence, and through opening statement
every opportunity in the trial court, and it properly preserved     and closing argument. Thus, unlike Havner, the “question of
a no evidence claim. Indeed, this Court emphasized that             scientific reliability was [not] raised repeatedly” before the
the offering party should be allowed the opportunity to             trial court. Havner, 953 S.W.2d at 709.
“pass[ ] muster” under a trial court Robinson objection—“to
present the best evidence available”—before an appellate             [21] Nevertheless, the dissent would hold that Maritime's
court considers whether legally sufficient evidence supports        decision to argue the weight of both parties' experts' testimony
a judgment. Havner, 953 S.W.2d at 720.                              to the jury was sufficient to preserve a complaint about
                                                                    reliability for appeal. When the reliability of scientific
 [20] Here, Maritime did not object to the scientific reliability   evidence is contested, attempts at persuasion before the jury
of a single one of Ellis's five expert witnesses until after        and reiterated on appeal cannot amount to preservation of
the jury verdict. Before trial, Maritime did not ask for a          error for appeal. To allow otherwise would impermissibly
Daubert/Robinson-type hearing. Cf. Havner, 953 S.W.2d               permit a party to strip away the trial court's role as gatekeeper
at 708–09. During trial, the record reflects that Maritime          in the first instance when a party wishes to contest the
made nine objections while Ellis's five experts testified.          reliability of scientific evidence. See *412 Robinson,
Five objections complained about nonresponsiveness, three           923 S.W.2d at 553, 556, 558 (placing a “heightened
complained about leading questions, and one complained that         responsibility” on trial judges “to ensure that expert
the witness was testifying from a document not in evidence.         testimony show some indicia of reliability” by holding them
Simply put, Maritime did not make any objection to the              “responsible for making the preliminary determination of
reliability of Ellis's experts before trial or when Ellis offered   whether the proffered testimony meets the standards [for
the evidence. Maritime cannot complain for the first time after     scientific reliability]”); see also Daubert, 509 U.S. at 589,
the verdict that the testimony from Ellis's five experts does       113 S.Ct. 2786 (explaining that “the trial judge must ensure
not support the judgment. To allow otherwise would deny             that any and all scientific testimony or evidence admitted
Ellis's scientific experts the opportunity to “pass [ ] muster”     is ... reliable”). As Justice Gonzalez rightly points out in his
in the first instance and usurp the trial court's discretion as     concurring opinion, “[i]t is impossible for a [trial] court to
“gatekeeper.” See Havner, 953 S.W.2d at 720; Robinson, 923          exercise its gatekeeper function after the evidence has been
S.W.2d at 554.                                                      admitted and the jury discharged.” 971 S.W.2d at 412.

Rules and procedures about error preservation promote               Under the dissent's approach, the trial court would be
certainty and fairness. Such rules also frame and develop the       converted at a party's whim from a gatekeeper to “an
legal issues for appeal, giving notice to both the litigants and    idle spectator rendered powerless to ensure the integrity of
to appellate courts about what issues remain. Appellate courts      courtroom evidence.” Robinson, 923 S.W.2d at 554 (quoting
must base their decisions on the record as made and brought         DuPont's argument). We decline to take away the trial
forward, not on a record that should have been made or could        court's gatekeeping function. To do otherwise would usurp
have been made. See Babbitt, 83 F.3d at 1067. For this Court        the orderly and efficient disposition of appeals, deprive the
to decide now that Ellis's scientific evidence is unreliable        proffering party of an opportunity to cure any defects in its
under Daubert or Robinson would base appellate review on a          evidence that the objecting party might pose, and in some
record that was not made.                                           cases, place appellate courts in the undesirable position of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             10
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

making decisions about evidentiary reliability absent a fully        Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995)
developed record.                                                    (making trial courts the “gatekeepers” of scientific evidence).
                                                                     I do not entirely agree with the Court's analysis of the
The dissent also goes to great lengths to set forth cases that it    Robinson issue. However, I ultimately reach the same
claims stand for the proposition that “a party may complain          conclusion that Maritime did not timely raise the issue. I
after verdict and on appeal that evidence admitted without           think it is imperative to ventilate any Robinson issues as early
objection is neither legally nor factually sufficient to support     as possible, preferably as a pretrial matter. To further that
the verdict.” 971 S.W.2d at 417. But the dissent's reliance on       policy, we should give trial courts wide discretion to reject
these cases is misplaced for those cases involve no evidence         late Robinson objections, and hold that the trial court did not
challenges where, on the face of the record, the evidence            abuse its discretion in this case.
lacked probative value. See Calvert, supra, at 362–63. In
contrast, by its own admission, Maritime is not making a no
evidence complaint.
                                                                                                    I

Maritime could have and should have objected to Ellis's              In Robinson, we made trial courts the gatekeepers of scientific
evidence at trial in a timely fashion for appellate                  evidence, charging them with the duty to screen out the
consideration. We have properly decided the case on the              speculative and unreliable. See id. at 556–57. It is impossible
issues preserved at trial and raised on appeal, as our rules and     for a court to exercise its gatekeeper function after the
precedent require.                                                   evidence has been *413 admitted and the jury discharged.
                                                                     Until now, however, we have not discussed in depth the
                                                                     procedure to preserve a Robinson objection. Preservation was
                      V. CONCLUSION                                  not an issue in Robinson, wherein we upheld the trial court's
                                                                     exclusion of expert testimony after a pretrial hearing on its
We conclude that the court of appeals used the proper                reliability. During trial the proponent of the evidence asked
standard to review the factual sufficiency of Ellis's actual         the court to reconsider its pretrial ruling, and made a bill of
damages evidence. We also conclude that because Maritime             exceptions when it did not. See id. at 552.
did not preserve error about Ellis's scientific expert testimony
in the trial court, the court of appeals did not err in conducting   We sustained a no-evidence point without discussing error
its factual sufficiency review. We overrule Maritime's other         preservation in Burroughs Wellcome Co. v. Crye, 907 S.W.2d
points of error. Accordingly, we affirm the court of appeals'        497, 499 (Tex.1995). The facts recited in the opinion do not
judgment.                                                            reveal what steps Burroughs took to preserve error, other
                                                                     than its objection to the evidence when it was offered. We
                                                                     also sustained a no-evidence Robinson complaint in Merrell
                                                                     Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997).
GONZALEZ, Justice, filed a concurring opinion, joined by
                                                                     Preservation of error was beyond question in that case
ABBOTT, Justice, with respect to Part III only.
                                                                     because Merrell Dow repeatedly challenged certain scientific
HECHT, Justice, joined by PHILLIPS, Chief Justice, filed a           evidence, raising the issue in a motion for summary judgment,
dissenting opinion.                                                  motions in limine, extensive pretrial hearings on the motions,
                                                                     objections during the expert's testimony, a motion for a
OWEN, Justice, not sitting.                                          directed verdict at the close of the Havners' evidence, and
                                                                     multiple post-trial motions. Id. at 708–09; Merrell Dow
GONZALEZ, Justice, joined by ABBOTT, Justice, with                   Pharm., Inc. v. Havner, 907 S.W.2d 535, 539 (Tex.App.—
respect to Part III, concurring.                                     Corpus Christi 1994).
I concur with the Court's judgment. The Court correctly
resolves the main issues: (1) approving the court of appeals'        The Court resolves the question in this case by characterizing
standard for reviewing the factual insufficiency of the              Maritime's Robinson argument as a no-evidence complaint,
evidence of a Jones Act cause of action, and (2) rejecting           and then holding that Maritime failed to preserve a legal
Maritime Overseas Company's untimely attempt to challenge            insufficiency point. The dissenting opinion also treats
the reliability of scientific evidence. See E.I. du Pont de          Maritime's arguments as legal insufficiency points. I think



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

their respective analyses are wrong for two reasons. First,          brings a factual insufficiency point, it is not *414 necessary
Maritime's arguments here are not true no-evidence points. As        to decide if Maritime preserved a no-evidence complaint.
the Court observes, Maritime expressly disavows any legal
insufficiency complaint, and instead claims only to challenge
the court of appeals' standard of review when it evaluated
                                                                                                    II
factual insufficiency. Maritime's prayer for relief seeks only
a new trial. I would take Maritime's arguments at face value         Moreover, whether we categorize Maritime's arguments as
and not try to read a no-evidence point into them.                   factual insufficiency or legal insufficiency does not resolve
                                                                     the case for me. I do not think the usual rules for preserving
Maritime argues instead that the evidence of causation is            either factual or legal insufficiency complaints adequately
factually insufficient because the record is utterly devoid of       address the concerns unique to Robinson issues.
reliable scientific evidence of causation. Such an argument
would be a legitimate factual insufficiency argument if made         Ordinarily, both legal and factual insufficiency points may
to a court of appeals. A court of appeals reviewing factual          be preserved by post-judgment motions. See Cecil v. Smith,
insufficiency considers all of the evidence to see if “the           804 S.W.2d 509 (Tex.1991). A court simply looks at the
evidence supporting the finding is so weak or the evidence to        record to determine the existence and weight of evidence
the contrary is so overwhelming that the finding should be set       to prove a given point. Appellate courts and trial courts
aside and a new trial ordered.” Garza v. Alviar, 395 S.W.2d          make such a review without additional information from
821, 821 (Tex.1965). If there is no evidence to support the          outside the record. However, the no-evidence analysis we
verdict, then certainly the court of appeals could conclude          describe in Havner is qualitatively different from the ordinary
that the evidence is too weak to support the verdict. If the         evidentiary review:
appellant's only viable point is factual insufficiency, the court
of appeals should remand for a new trial. See Wright Way                          [W]e emphasize that courts must make
Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex.1985).                         a determination of reliability from
                                                                                  all the evidence. Courts should allow
However, an argument proper in the court of appeals may                           a party, plaintiff or defendant, to
not be appropriate in our Court because of our limited                            present the best available evidence,
jurisdiction over factual insufficiency. Our jurisdiction over                    assuming it passes muster under
factual insufficiency is limited to whether the court of appeals                  Robinson, and only then should a
applied the proper standard of review. See In re King's Estate,                   court determine from a totality of
150 Tex. 662, 244 S.W.2d 660, 661–62 (1951). Maritime                             the evidence, considering all factors
asserts that it only wants us to exercise our limited jurisdiction                affecting the reliability of particular
over standards of review, but its arguments come perilously                       studies, whether there is legally
close to asking us to substitute our opinion for that of the                      sufficient evidence to support a
court of appeals. I question whether our jurisdiction would                       judgment.
allow us to consider the merits of Maritime's argument. See
                                                                     Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d at 720.
Havner v. E–Z Mart Stores, Inc., 846 S.W.2d 286, 286
(Tex.1993) (Gonzalez, J., concurring on denial of application
                                                                     It should be apparent that appellate courts constitutionally
for writ of error) (cautioning that this Court must not second-
                                                                     cannot conduct such a hearing in the first instance. However, I
guess the court of appeals' review of factual insufficiency);
                                                                     do not think that allowing parties to raise Robinson objections
Lofton v. Texas Brine Corp., 777 S.W.2d 384, 388 (Tex.1989)
                                                                     for the first time post verdict, or even during trial, is fair to
(Hecht, J., dissenting) (criticizing the Court for circumventing
                                                                     the litigants or judicially efficient.
constitutional limitations over factual insufficiency through
pretextual legal issues). Compare with Jaffe Aircraft Corp.
                                                                     A court should not be required to interrupt trial to conduct
v. Carr, 867 S.W.2d 27, 29–30 (Tex.1993) (Gonzalez, J.,
                                                                     a Robinson hearing which could have been held pretrial.
concurring) (noting rare circumstance that allowed this Court
                                                                     As Merrell Dow v. Havner illustrates, the trial court's
to exercise jurisdiction over a court of appeals' factual
                                                                     role as gatekeeper requires it to decide complex issues in
insufficiency review). In any event, since Maritime only
                                                                     fields outside its primary expertise. Some courts have tried
                                                                     innovative approaches, such as selecting neutral experts in the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              12
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

field to serve as masters, a step I encourage when the issues            court experts (the expert's fees would be taxed as court
are especially complex. See Justice Breyer Calls for Experts             costs);
to Aid Courts in Complex Cases, N.Y. Times, Feb. 17, 1998,
at A17. Such innovation is not possible if the trial court is not     4) render expert testimony inadmissible or rule objections
given advance warning.                                                   waived unless the parties fully comply with the notice
                                                                         requirements set out above.
I recognize that there may be instances of good cause for
not making a Robinson objection pretrial, in which case the         In sum, because a Robinson objection profoundly impacts the
trial court should entertain the objection. Also, some opinion      trial of a case, an opponent to proffered scientific evidence
testimony may be so untenable on its face that no Robinson          should raise the issue of reliability early in the litigation or risk
hearing is necessary. For example, our Court recognized long        losing the objection. I agree with the Court that an opponent
before Robinson that courts are not bound by testimony at           to scientific evidence must object to it when offered, at the
odds with indisputable physical facts and common knowledge          very latest. However, I would go further and hold that if a
because it has no probative value. Humble Oil & Refining            party knows pretrial about the existence of Robinson issues
Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995, 1001–                  but fails to ask for a pretrial hearing, any objection about the
02 (1949) (holding that court could disregard petitioner's          admission or exclusion of such evidence raised for the first
“incredible” testimony that she had secured her automobile          time during trial is waived.
by engaging the reverse gear before it rolled downhill striking
pedestrians). Such situations will be comparatively rare,
                                                                    HECHT, Justice, joined by PHILLIPS, Chief Justice,
however. Our discovery rules require the proponent of expert
                                                                    dissenting.
testimony to identify the witnesses and the substance of their
                                                                    Maritime Overseas Corporation seeks a new trial because,
opinions in response to appropriate discovery. Thus in the
                                                                    while Richard Ellis was undeniably injured by his exposure
ordinary case, it should be very apparent at the discovery stage
                                                                    to diazinon, the scientific evidence does not support the
that a party will proffer scientific testimony. The opponent of
                                                                    conclusion that he suffers from permanent neurotoxicity, and
such testimony should bring its objections to the trial court's
                                                                    thus the $8,576,000 awarded him in damages is excessive.
attention so that the trial court may resolve them without
                                                                    The Court holds that it could not order a new trial even
interfering with the eventual trial.
                                                                    if it agreed with Maritime Overseas' contention, completely
                                                                    ignoring its decision to grant a new trial in indistinguishable
                                                                    circumstances just one year ago in Texarkana Memorial
                              III                                   Hospital, Inc. v. Murdock, 946 S.W.2d 836 (Tex.1997). The
                                                                    Court also holds that Maritime Overseas failed to preserve
As a final note, I encourage trial courts to aggressively           its complaint for appeal because it did not object to Ellis's
exercise their role as gatekeepers of scientific evidence. There    evidence at trial, even though Maritime Overseas' position
are many steps a court could take to try cases efficiently          has always been—in its opening statement, its extensive
and fairly, with fidelity to sound scientific methodology. For      examination of the expert witnesses, its closing argument,
example, a court could:                                             its motion for new trial, and on appeal—that no reliable
                                                                    scientific evidence shows that diazinon can cause long-term
  1) require parties to notify opponents and the court
                                                                    neurotoxicity. As Ellis's attorney told the jury in his opening
    sufficiently in advance of the trial of plans to either offer
                                                                    statement, Maritime Overseas' “position is that this chemical
    scientific evidence or challenge an opponent's evidence;
                                                                    just cannot cause an injury to a worker's nervous system.”
  2) conduct a preliminary hearing on admissibility in              Maritime Overseas' position has never been in doubt.
    advance of plans to offer the evidence;
                                                                    Not one case the Court cites so much as hints that a party
   *415 3) in complex litigation, appoint a panel of specially      in Maritime Overseas' circumstances has failed to preserve
    trained scientists or a special master to hear evidence and     error, and one of those cases, Sumitomo Bank v. Product
    report on complicated scientific and statistical matters.       Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983), actually
    The report would be filed with the clerk's office. If the       suggests that Maritime Overseas has preserved its position.
    parties request it, the court should conduct a hearing on       The Court refuses to acknowledge, much less reconcile, its
    the report and allow the parties to cross examine the           own numerous precedents that require reversal of a judgment


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 13
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

based on non-probative evidence, even though the evidence        injuries caused by [the Hospital's] negligence.” Murdock, 946
was admitted without objection. The Court appears to think       S.W.2d at 837. We agreed and reversed the award, explaining:
that if it ignores these cases they will somehow go away. The
Court steadfastly evades the one and only issue over which                    [W]hile [there] is some evidence of
these parties have fought since the day this litigation began                 damage caused by [the Hospital's]
—whether there is reliable evidence that Ellis suffers from                   negligence, a plaintiff may recover
neurotoxicity. I would decide this issue; therefore I dissent.                only for those injuries caused by
                                                                              the event made the basis of suit.
                                                                              Morgan v. Compugraphic Corp., 675
                                                                              S.W.2d 729, 732 (Tex.1984). The
                              I                                               case before us is analogous to other
                                                                              cases where a suit for medical
It is undisputed that Ellis suffered some injury from his
                                                                              expenses involved another injury or
exposure to diazinon and should recover some damages, but
                                                                              pre-existing condition.... We ... hold
it is equally undisputed that if he did not suffer long-term
                                                                              that a plaintiff should recover only
neurotoxicity, his damages are nowhere near $8,576,000.
                                                                              for medical expenses specifically
The court of appeals, in determining the factual sufficiency
                                                                              shown to result from treatment made
of the evidence, considered expert testimony that Ellis not
                                                                              necessary by the negligent acts or
only was injured but that he suffers from neurotoxicity.
                                                                              omissions of the defendant, where
Maritime Overseas argues that evidence offered in support of
                                                                              such a differentiation is possible.
Ellis's long-term injury claims is unreliable and therefore no
evidence at all. Thus, Maritime Overseas contends that the       Id. at 839–840 (citation omitted). Although the Hospital
court of appeals erred in considering such testimony in its      couched its complaint in no-evidence terms, for which the
factual sufficiency review. The Court correctly summarizes       remedy is ordinarily rendition of judgment, we concluded
Maritime Overseas' argument: “In essence, Maritime would         that “[b]ecause Murdock ... presented legally sufficient
have this Court conduct a no evidence review of the evidence     evidence that some of the medical expenses resulted from
about delayed neurotoxicity within the Court's review of         [the Hospital's negligence], [she] should be afforded an
whether the court of *416 appeals properly reviewed the          opportunity to develop this evidence further.” Id. at 841.
factual sufficiency of the evidence.” Ante at 412. Then the      Thus, we remanded the case for a new trial. In support of this
Court says: “We decline to do so.” Id.                           conclusion we cited Stewart Title Guaranty Co. v. Sterling,
                                                                 822 S.W.2d 1, 10–12 (Tex.1991), in which we remanded a
But the Court did not “decline to do so” last year in            case for a new trial on attorney fees because the evidence
Texarkana Memorial Hospital, Inc. v. Murdock, 946 S.W.2d         supported an award of some fees for some claims, even
836 (Tex.1997). Murdock sued the Texarkana Memorial              though fees could not be awarded on all claims.
Hospital for negligence in delivering her daughter. The child
was born with severe congenital defects and died about           The present case is indistinguishable from Murdock. There,
a year later. Murdock claimed that she was entitled to           as here, the argument was that while some evidence showed
damages equal to all of the child's medical expenses, but        some damages, no evidence supported all the damages
the Hospital argued that Murdock could recover only for          awarded. Although the Hospital complained of the legal
those expenses caused by its negligence, excluding expenses      sufficiency of the evidence, it in effect challenged the court
for treatment necessitated by the child's congenital defects.    of appeals' factual sufficiency review for considering non-
The district court awarded Murdock the total expenses,           probative evidence, and we treated the complaint as being
and the court of appeals affirmed, holding that legally and      directed to that review, remanding for a new trial rather
factually sufficient evidence supported the conclusion that      than rendering judgment for the Hospital. Maritime Overseas'
all the medical expenses were caused by the Hospital's           application for writ of error states: “There is no evidence that
negligence. Texarkana Memorial Hosp., Inc. v. Murdock, 903       diazinon causes delayed neurotoxicity and thus insufficient
S.W.2d 868, 877–880 (Tex.App.—Texarkana 1995), rev'd,            evidence that Ellis suffered $8,576,000 in actual damages.”
946 S.W.2d 836 (Tex.1997). In this Court, the Hospital           The arguments in the two cases, while phrased differently, are
argued that there was “no evidence of a direct causal link       indistinguishable in import and effect. The arguments and the
between the amount of medical expenses awarded and any           relief sought are the same in both.


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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

                                                                                some organophosphates do not cause
Why isn't Murdock controlling or at least instructive? The                      delayed neurotoxicity.
Court refuses to answer, refuses even to cite Murdock. The
argument that there is some significance in the Hospital's         To make the matter even clearer, Maritime Overseas
no-evidence challenge and Maritime Overseas' insufficient-         summarizes its position thusly: “There is no evidence that
evidence challenge is too weak even for the Court to employ.       diazinon causes delayed neurotoxicity and thus insufficient
If anything, Maritime Overseas' contention that the evidence       evidence that Ellis suffered $8,576,000 in actual damages.”
of damages is insufficient because there is no evidence            The result in Murdock was correct, and the same analysis
of some damages awarded is more straightforward than               should be applied in this case. A party must have a means
the Hospital's contention that there was no evidence of            of contesting the amount of damages when there is evidence
the damages awarded because there was some evidence of             for some claims but not all of them. Following Murdock,
only lesser damages. But in fact, both arguments come out          Maritime Overseas is entitled to a new trial if its evidentiary
at the same place, in substance—some but not all of the            complaint has been preserved and has merit. The Court holds
damages are supported by the evidence—and in result—a              that Maritime Overseas' complaint was not preserved and
new trial excluding the unsupported claims. *417 Maritime          does not reach the merits.
Overseas' first point of error in this Court asserts: “The court
of appeals erred in failing to examine whether any well-
founded scientific methodology supports the award of ...                                         II
actual damages.” Even if Maritime Overseas could be faulted
for misphrasing its point of error, that mistake cannot dictate    As early as 1912, and as recently as last year, this Court has
the result in the case.                                            held that a party may complain after verdict and on appeal
                                                                   that evidence admitted without objection is neither legally nor
  A point of error “is sufficient if it directs the attention of   factually sufficient to support the verdict. The Court ignores
  the appellate court to the error about which complaint is        a solid line of cases establishing this principle with respect
  made.” Courts are to construe rules on briefing liberally.       to all kinds of evidence, including scientific testimony. There
  An appellate court should consider the parties' arguments        is no authority for the Court's holding that “[t]o preserve a
  supporting each point of error and not merely the wording        complaint that scientific evidence is unreliable and thus, no
  of the points.                                                   evidence, a party must object to the evidence before trial or
                                                                   when the evidence is offered.” Ante at 409. The notion that
                                                                   a party must as a matter of course object to evidence before
Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex.1995) (per
                                                                   trial is a complete stranger to our procedure. Despite this lack
curiam) (citations omitted). Maritime Overseas' argument in
                                                                   of authority, it seems clear that parties should be required
its application for writ of error is crystal clear:
                                                                   to contest the reliability of scientific testimony in some way
             In this case, Ellis offered no                        prior to the verdict in most instances. However, Maritime
             epidemiological study, no peer-                       Overseas did so in this case.
             reviewed theory, nor any evidence
             of general scientific acceptance to
             support the conclusion of his experts                                                A
             that his exposure to diazinon caused
             delayed neurotoxicity. The premise                    As a rule, a contention that evidence is insufficient to support
             upon which his experts' conclusion                    a judgment need not be raised before the verdict. Rule 279,
             was based—that because some                           TEX.R. CIV. P., states: “A claim that the evidence was
             organophosphates can cause delayed                    legally or factually insufficient to warrant the submission of
             neurotoxicity, diazinon therefore                     any question may be made for the first time after verdict,
             must cause delayed neurotoxicity                      regardless of whether the submission of such question was
             —is false logic, as pointed out                       requested by the complainant.” Prior to the verdict, a party
             by Justice Robertson's concurring                     may, but is not required to, raise the complete absence of
             and dissenting opinion, because                       evidence on a point. This differs from federal procedure,
                                                                   which requires that a motion for judgment as a matter of law



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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

be made before the case is submitted to the jury “to assure        civil appeals, holding that testimony by Rhone and McDaniel
the responding party an opportunity to cure any deficiency in      contrary to its conclusion, though not objected to, was no
that party's proof that may have been overlooked until called      evidence.
to the party's attention”. FED.R.CIV.P. 50(a)(2) advisory
committee's note. Texas procedure does not afford parties                      The only testimony in the record
the same protection. Thus, for example, a defendant sued for                   which would in the least tend to
reasonable and necessary expenses can wait until after the                     support the conclusion that Rhone
verdict to point out that the plaintiff never offered evidence                 was working for the Beaumont
that the expenses claimed were reasonable. See McCreless                       Development Corporation was given
Properties, Ltd. v. F.W. Woolworth *418 Co., 533 S.W.2d                        by Rhone and McDaniel, each of
863, 868 (Tex.Civ.App.—San Antonio 1976, writ ref'd n.r.e.);                   whom testified that, at the time of
Holt v. Purviance, 347 S.W.2d 321, 324–325 (Tex.Civ.App.                       the injury, Rhone was working for
—Dallas 1961, writ ref'd n.r.e.). A defendant sued for attorney                it. Those statements did not amount
fees may wait until after the verdict to assert that no evidence               to any evidence at all. They were
of the required presentment of the claim was offered. See Jim                  but bare conclusions and therefore
Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 905 (Tex.App.                      incompetent, and the fact that they
—Austin 1991, no writ). A pre-verdict objection to the factual                 were admitted without objection adds
insufficiency of the evidence cannot preclude submission to                    nothing to their probative force.
the jury of pleaded claims, Brown v. Goldstein, 685 S.W.2d
640, 641 (Tex.1985), and thus has essentially no effect.
                                                                   Id. at 99.
                                                                   The Court followed Rhone in Dallas Railway & Terminal
Even if evidence is admitted without objection, it may
                                                                   Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956).
be insufficient to support a judgment. This Court held
                                                                   In that case, a bus passenger, Gossett, recovered damages
eighty-six years ago that “incompetent testimony can never
                                                                   for injuries she sustained when the bus struck a car. The bus
form the basis of a finding of facts in an appellate
                                                                   company, Dallas Railway, impleaded the driver of the car,
court, notwithstanding its presence in the record without
                                                                   Sample, contending that her negligence in driving the wrong
objection.” Henry v. Phillips, 105 Tex. 459, 151 S.W. 533,
                                                                   way on a one-way street caused the accident. The jury failed
538 (Tex.1912). In that case, testimony admitted without
                                                                   to find Sample negligent. On appeal, Dallas Railway argued
objection was held to be no evidence on appeal because it
                                                                   that the evidence established Sample's negligence because
was hearsay. Id. at 537. The Court repeatedly treated hearsay
                                                                   it was undisputed that she was driving the wrong way on
as no evidence even if it was not objected to, until Rule
                                                                   a one-way street. The bus driver, Gossett, Sample, and an
802 of the Texas Rules of Civil Evidence was adopted in
                                                                   accident investigator all testified that they believed traffic
1983. Zobel v. Slim, 576 S.W.2d 362, 369 (Tex.1978); Cooper
                                                                   on the street was one-way, but no evidence was offered
Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889,
                                                                   showing that traffic was legally restricted. The Court held
891 (Tex.1969); Aetna Ins. Co. v. Klein, 160 Tex. 61, 325
                                                                   that the witnesses' testimony did not establish that the street
S.W.2d 376, 379 (1959); City of Mission v. Popplewell, 156
                                                                   was one-way, explaining: “It is well settled that the naked
Tex. 269, 294 S.W.2d 712, 717 (1956); Texas Co. v. Lee, 138
                                                                   and unsupported opinion or conclusion of a witness does not
Tex. 167, 157 S.W.2d 628, 631 (1941). But the principle in
                                                                   constitute evidence of probative force and will not support
Henry has been applied to evidence other than hearsay.
                                                                   a jury finding even when admitted without objection.” Id. at
                                                                   380–381.
In Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d
97 (1939), Rhone sought compensation for injuries sustained
                                                                   Two cases cited by Gossett with approval apply the same
while working on a construction site. The dispute centered on
                                                                   principle in other settings. In one, Webb v. Reynolds, 207 S.W.
whether at the time of his injuries he was employed by the
                                                                   914 (Tex. Comm'n App.1919, judgm't adopted), the court
general contractor, Beaumont Development Corporation, or
                                                                   held that a plaintiff's testimony that he owned a promissory
a subcontractor, McDaniel. The jury found that Rhone was
                                                                   note was no evidence to support his claim because the
employed by the general contractor, but the court of civil
                                                                   statement “was a bare conclusion or opinion of the witness
appeals reversed, holding as a matter of law that Rhone was
                                                                   without any basis of fact”. Id. at 916. Plaintiff's *419 own
employed by the subcontractor. We affirmed the court of
                                                                   pleadings asserted that the note was owned by an estate.


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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

Id. The court added: “The fact that [the testimony] was                        bacteria; that Schaefer frequently
not objected to could add nothing to its probative force.”                     worked in soil contaminated by
Id. In the other, Perren v. Baker Hotel, 228 S.W.2d 311                        bird droppings; that Schaefer suffers
(Tex.Civ.App.—Waco 1950, no writ), the court held that a                       from one of the serotypes of
wife's testimony that her husband had agreed to rent hotel                     m. intracellularis; and, therefore,
rooms “was nothing more than a bare conclusion on the part of                  he has an occupational disease.
the witness concerning a question of law and such testimony                    Notwithstanding Dr. Anderson's
had no probative force, even though it had been admitted                       opinion, there is a crucial deficiency in
without any objection.” Id. at 317.                                            the proof of causation. The evidence
                                                                               fails to establish that any bacteria was
In Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354                    present in the soil where Schaefer
(Tex.1971), this Court held that a plaintiff's testimony that he               worked.
was acting in the course and scope of his employment at the
time he was injured was no evidence to support a finding to
that effect. Even though the testimony was admitted without        Id. at 203. After quoting extensively from Dr. Anderson's
objection, it was attacked in cross-examination. The Court         testimony, the Court continued that his opinion was no
stated:                                                            evidence of the cause of Schaefer's disease because it lacked
                                                                   any real basis:
             This court has approved the holding
             that testimony of an employee (driver)                  Dr. Anderson assumes that Schaefer is infected with an
             that he was acting within the course                    avian serotype m. intracellularis pathogenic to fowl. He
             of his employment at the time of an                     further assumes that this serotype was present in bird
             accident is not admissible. If such                     droppings where Schaefer worked. It is admitted that the
             testimony is admitted, with or without                  particular strain of m. intracellularis from which Bobby
             objection, it has been held to be                       Schaefer suffers has not been identified. It is also admitted
             incompetent and without probative                       that the manner in which the disease was transmitted to
             force. It will not support a verdict or a               Schaefer is unknown. It is further admitted that there is
             finding of fact by a court.                             no evidence that the bacteria is present in the soil where
                                                                     Schaefer worked, or even in Nueces County.

Id. at 360 (citations omitted).                                      We have reviewed the substance of Dr. Anderson's
In Schaefer v. Texas Employers' Insurance Association, 612           testimony in its entirety and we find that it does no more
S.W.2d 199 (Tex.1980), Schaefer claimed compensation                 than suggest a possibility as to how or when Schaefer was
benefits, alleging that he suffered from an occupational             exposed to or contracted the disease. We hold that his
disease, atypical tuberculosis. The carrier disputed that            opinion is not based upon reasonable medical probability
Schaefer contracted his disease at work. His treating                but relies on mere possibility, speculation, and surmise. We
physician, Dr. Anderson, testified “that in his opinion, based       hold there is no evidence that the disease suffered by Bobby
on reasonable medical probability, Schaefer's disease resulted       Schaefer is an occupational disease “arising out of and in
from his employment.” Id. at 202. The defendant attacked Dr.         the course of employment.” The fact that proof of causation
Anderson's opinion on cross-examination but did not object           is difficult does not provide a plaintiff with an excuse to
to its admission. The jury found for Schaefer, but the court of      avoid introducing some evidence of causation. To ignore
civil appeals reversed and rendered judgment for the carrier.        the substance of Dr. Anderson's testimony and accept his
This Court affirmed, refusing to take Dr. Anderson's opinion         opinion as “some” evidence simply because he used the
at face value and looking instead to the basis for it. The Court     magic words “reasonable probability” effectively *420
explained:                                                           removes this Court's jurisdiction over any case requiring
                                                                     expert opinion testimony. Under such view, so long as an
             The basis for [Dr. Anderson's] opinion                  expert states the words “reasonable probability,” in giving
             is that persons engaged in “dirty”                      his opinion, there would be some evidence. The question
             occupations, such as farmers, tend                      would then be solely one of sufficiency of the evidence
             to have a greater exposure to the                       over which this Court has no jurisdiction.



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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683


Id. at 204–205 (citations omitted).                                             Justice Gonzalez, in writing for the
We reaffirmed Schaefer in Burroughs Wellcome Company v.                         Court, gave rather colorful examples
Crye, 907 S.W.2d 497 (Tex.1995). In that case plaintiff Crye's                  of unreliable scientific evidence in
treating physician, Dr. Blesius, testified without objection                    E.I. du Pont de Nemours & Co.
that Polysporin sprayed on Crye's foot caused frostbite. The                    v. Robinson, 923 S.W.2d 549, 558
jury found for Crye, and the court of appeals affirmed,                         (Tex.1995), when he said that even
concluding that the evidence was factually and legally                          an expert with a degree should not
sufficient to support the verdict. Burroughs Wellcome Co.                       be able to testify that the world
v. Crye, 912 S.W.2d 251, 259 (Tex.App.—El Paso 1994),                           is flat, that the moon is made of
rev'd, 907 S.W.2d 497 (Tex.1995). We reversed, despite                          green cheese, or that the Earth is
the admission of Dr. Blesius' testimony without objection,                      the center of the solar system. If
because his opinion had no factual basis. We stated:                            for some reason such testimony were
                                                                                admitted in a trial without objection,
             We     hold     that    Dr.   Blesius'                             would a reviewing court be obliged
             testimony constitutes no evidence                                  to accept it as some evidence? The
             that Polysporin spray caused Crye                                  answer is no. In concluding that this
             to sustain a frostbite injury. When                                testimony is scientifically unreliable
             an expert's opinion is based on                                    and therefore no evidence, however,
             assumed facts that vary materially                                 a court necessarily looks beyond
             from the actual, undisputed facts, the                             what the expert said. Reliability is
             opinion is without probative value and                             determined by looking at numerous
             cannot support a verdict or judgment.                              factors including those set forth in
             See Schaefer v. Texas Employers'                                   Robinson and [Daubert v. Merrell
             Ins. Ass'n., 612 S.W.2d 199, 202–                                  Dow Pharmaceuticals, Inc., 509 U.S.
             05 (Tex.1980) (reviewing substance                                 579, 113 S.Ct. 2786, 125 L.Ed.2d
             of medical expert's testimony and                                  469 (1993) ]. The testimony of an
             holding that this testimony constitutes                            expert is generally opinion testimony.
             no evidence of causation, as it is                                 Whether it rises to the level of
             based on assumptions, possibility,                                 evidence is determined under our
             speculation, and surmise).                                         rules of evidence, including Rule 702,
                                                                                which requires courts to determine
                                                                                if the opinion testimony will assist
,Id. at 499–500 (citation omitted).
                                                                                the jury in deciding a fact issue.
Just last year in Merrell Dow Pharmaceuticals, Inc. v.                          While Rule 702 deals with the
Havner, 953 S.W.2d 706 (Tex.1997), we reiterated that “an                       admissibility of evidence, it offers
expert's bare opinion will not suffice” to provide evidence                     substantive guidelines in determining
of causation of an injury; “[t]he substance of the testimony
                                                                                if the expert testimony is some
must be considered.” Id. at 711. Merrell Dow asserted in the                    evidence of probative value.
trial court that scientific evidence of any causal connection
between the use of Bendectin and birth defects was unreliable,
and it “objected to the admission of some, but not all, of this     Id. (emphasis in original).
evidence.” Id. at 709. We held that the expert testimony, even      Within the past few months we denied the application for writ
that admitted without objection, was no evidence to support a       of error in Williams v. Gaines, 943 S.W.2d 185 (Tex.App.
judgment for Havner because the testimony showed that there         —Amarillo 1997, writ denied). In that case, Gaines sued
was no basis for the experts' opinions. We said: “When the          Williams for removing her as president of a corporation
expert ‘br [ings] to court little more than his credentials and a   in which he was sole shareholder and terminating her
subjective opinion,’ this is not evidence that would support a      employment with the corporation. The jury found that
judgment.” Id. at 712 (citation omitted). We added:                 Williams *421 breached his agreement with Gaines and
                                                                    that her damages included $92,500 as the value of the stock


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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

as of a specific date that Williams promised Gaines but did        The other two cases, Marbled Murrelet v. Babbitt, 83 F.3d
not convey. The court of appeals reversed the judgment for         1060 (9th Cir.1996), cert. denied, 519 U.S. 1108, 117 S.Ct.
Gaines and remanded the case for a new trial, holding that         942, 136 L.Ed.2d 831 (1997), and Sumitomo Bank v. Product
there was no evidence to support the jury's damages finding.       Promotions, Inc., 717 F.2d 215 (5th Cir.1983), the Court
Gaines and an expert witness had testified without objection       cites for the proposition that “[w]ithout requiring a timely
to the value of the stock based solely on data after the date at   objection to the reliability of the scientific evidence, the
issue. The court concluded: “Because the data relied upon by       offering party is not given an opportunity to cure any
Ms. Gaines to support the jury's award is based on subsequent      defect that may exist, and will be subject to trial and
data, there was no probative evidence of the fair market           appeal by ambush.” Ante at 409. There are two flaws in
value of one-half of the [corporation's] stock on [the specified   the Court's reliance on these cases. First, as noted earlier,
date]”. Id. at 193. The court explained: “Opinion evidence         Texas procedure allows the sufficiency of the evidence
based on conjecture or speculation lacks probative value.          to be challenged for the first time after verdict, whereas
Incompetent evidence, even if not objected to at trial, may        federal procedure does not. Thus, Texas procedure allows
not be considered as probative in determining the legal and        for some ambush that federal procedure precludes. Second,
factual sufficiency of the evidence.” Id. (citation omitted).      Sumitomo Bank holds only that in determining whether there
                                                                   is no evidence to support a finding such that judgment
To summarize, bare conclusions and assertions unsupported          should be rendered notwithstanding the verdict, evidence
by facts of record, expert opinions based on facts merely          ruled admissible cannot be excluded from consideration.
assumed and not proved, or facts different from those proved,      See also Schudel v. General Elec. Co., 120 F.3d 991, 995
and scientific testimony without any reliable basis, even          (9th Cir.1997) (“when deciding a motion for JNOV, a trial
if admitted without objection, are no evidence to support          court may not ignore evidence erroneously admitted at trial,
a finding of fact. An expert's opinion that disease was            [because] excluding evidence after the verdict is unfair to
contracted through working conditions, or that a spray caused      a party who may have relied on the determination that the
frostbite, or that a medication caused birth defects, even if      evidence was admissible.”). While this reasoning applies in
admitted without objection, is not probative evidence if the       deciding whether to render judgment notwithstanding the
testimony shows that the opinion lacks any substantial basis.      verdict, it does not apply in deciding whether to grant a new
This is not to say that the deficiency in the evidence need not    trial. As the court explained in Sumitomo Bank:
be pointed out in any way before the verdict, but only that
it can be done by cross-examination and means other than                       The trial judge erred in retroactively
objections.                                                                    striking the summary exhibits and
                                                                               then gauging the jury's performance
                                                                               on the fictive basis that the summary
                                                                               evidence was not before it. Although
                               B                                               acceptable in the context of a motion
                                                                               for new trial, see *422 Montgomery
The Court holds: “To preserve a complaint that scientific
                                                                               Ward & Co. v. Duncan, 311 U.S. 243,
evidence is unreliable and thus, no evidence, a party must
                                                                               61 S.Ct. 189, 85 L.Ed. 147 (1940),
object to the evidence before trial or when the evidence
                                                                               this methodology is not appropriate in
is offered.” Ante at 409. Whatever the Court means by
                                                                               connection with a motion for judgment
objecting to evidence before trial, the four cases the Court
                                                                               n.o.v.
cites as authority do not support this holding. The first case,
Robinson, does not consider the issue. In that case, the subject
evidence was objected to and excluded by the trial court.
                                                                   717 F.2d at 218 (emphasis added). As the court noted, the
Whether any objection was necessary was never addressed by
                                                                   Supreme Court explained the difference between motions for
this Court. In the second case, Havner, we stated quite plainly
                                                                   judgment n.o.v. and motions for new trial in Montgomery
that objection was made to the admission of “some, but not
                                                                   Ward:
all” of the evidence at issue. “[T]he question of scientific
reliability was raised repeatedly”, but not consistently by                    Each motion, as the rule recognizes,
objection. Havner, 953 S.W.2d at 709.                                          has its own office. The motion for
                                                                               judgment cannot be granted unless,



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Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

            as matter of law, the opponent of                     Court's holding that no evidence supported the verdict was
            the movant failed to make a case                      despite the absence of objections.
            and, therefore, a verdict in movant's
            favor should have been directed. The                  The Court states that Havner “emphasized that the offering
            motion for a new trial may invoke                     party should be allowed the opportunity to ‘pass[ ] muster’
            the discretion of the court in so far                 under a trial court Robinson challenge—‘to present the best
            as it is bottomed on the claim that                   evidence available’—before an appellate court considers
            the verdict is against the weight of                  whether legally sufficient evidence supports a judgment.”
            the evidence, that the damages are                    Ante at 411. What Havner actually said was:
            excessive, or that, for other reasons,
            the trial was not fair to the party                                In sum, we emphasize that courts must
            moving; and may raise questions of                                 make a determination of reliability
            law arising out of alleged substantial                             from all the evidence. Courts should
            errors in admission or rejection of                                allow a party, plaintiff or defendant,
            evidence or instructions to the jury.                              to present the best available evidence,
                                                                               assuming it passes muster under
311 U.S. at 251, 61 S.Ct. 189 (emphasis added).                                Robinson, and only then should a
Maritime Overseas contends here that it is entitled to a new                   court determine from a totality of
trial, not that judgment should be rendered in its favor. Thus,                the evidence, considering all factors
the Court's reasoning, and the cases it cites, are inapposite.                 affecting the reliability of particular
Our rules of procedure do not require a party to assert before                 studies, whether there is legally
the verdict that the evidence is insufficient to support a                     sufficient evidence to support a
verdict. The factual sufficiency of the evidence may always                    judgment.
be attacked post-verdict, even if no objection was made to
its admissibility. Indeed, as the Supreme Court observed,
one consideration in deciding whether to grant a new trial        953 S.W.2d at 720. The point was, as we said, that the
is whether there were substantial errors in the admission         reliability of scientific evidence must be determined from a
or rejection of evidence. As already demonstrated, our own        review of all the evidence, not simply the evidence of one
precedents permit evidence to be rejected post-verdict as non-    party or the other. Only by alchemy can this passage be turned
probative in at least some instances, even if it was admitted     into a requirement that evidence be objected to before its
without objection.                                                reliability can be determined.
                                                                  The Court does not explain the holding in Schaefer and
                                                                  other cases cited above, where evidence was held to be
                                                                  non-probative even though it had been admitted without
                              C
                                                                  objection. Instead, the Court refers vaguely to a pretrial
The Court holds that the reliability of scientific evidence       “Daubert/Robinson-type hearing.” Ante at 411. The Court
must be objected to before trial or when the evidence is          does not explain what kind of hearing this is, how it is
offered. How one objects to evidence before trial is not          invoked, *423 when it is to be conducted relative to the
entirely clear. The Court mentions Merrell Dow's motion           commencement of trial, and whether it is required.
for summary judgment and motion in limine in Havner,
suggesting that these are ways in which scientific evidence       Our precedents seem to teach that parties should not be
can be challenged. As already noted, the Court states that        permitted to attack evidence for the first time after the verdict
“Merrell Dow objected to the admission of the Havners'            unless it is plainly without probative value—such as an
scientific evidence”, ante at 411, but this is only partly        opinion based on the moon's being made of green cheese,
true. Merrell Dow only objected to some of the Havners'           or a mere assertion that a person is another's employee, or
evidence. Had Merrell Dow been foreclosed from attacking          that a person was injured in the course of work, or that a
the reliability of evidence to which it did not object, there     person made an agreement. In most situations, however, if
would have been evidence to support the verdict. Thus, the        the probative value of evidence is to be in question, then
                                                                  ordinarily the issue must be raised before the verdict. This
                                                                  prevents the ambush that concerns the Court and puts both


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            20
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

parties and the trial court on notice of the contentions in          Ellis's experts that he suffered from neurotoxicity caused by
the case. But it hardly makes sense to require a specific            exposure to diazinon.
objection to each line of scientific opinion testimony when a
party's stated, clear position is that the opinion is baseless. In
Schaefer, for example, the carrier's position was plain from         In summation, Ellis's counsel again addressed the issue:
its cross-examination of the claimant's physician: his opinion
                                                                                 I acknowledge that the difficulty I have
that the claimant contracted atypical tuberculosis at work
                                                                                 labored under is that you cannot show
had no basis in fact. Likewise, in Havner, there could be no
                                                                                 clearly a damage to the central nervous
mistake that Merrell Dow's position throughout, as in all the
                                                                                 system. Nobody can, but that doesn't
other Bendectin cases previously tried, was that there was no
                                                                                 mean you don't have a right to be
reliable evidence that Bendectin caused birth defects.
                                                                                 treated fairly when you have it.

In the case before us, there was never any doubt about               Maritime Overseas' counsel stressed in summation:
Maritime Overseas' position. In his opening statement, Ellis's
attorney told the jury:                                                There wasn't a single article out of all the articles that we
                                                                       all went over bit by bit, line by line. Not a single one
             The attorney representing the                             ever says that diazinon causes these sort of effects [i.e.,
             company told you yesterday that—                          neurotoxicity]. Not one.
             well, their position is that this chemical
             just cannot cause an injury to a
             worker's nervous system. That's just                                                ***
             not true. In fact, you'll hear evidence                   There's an article and it's Defendant's Exhibit No. 3. I want
             from the witnesses that it can cause                      you to look on page 149 of that article, in particular. It's
             an injury if it is—if the exposure is                     an article written by Al Johnson together with Dr. Lassetor
             sufficiently great and if the exposure                    and two other people. And one of the conclusions of that
             is on the order of what this man was                      article is that pesticides—some pesticides have neurotoxic
             exposed to.                                               effects, yes. It doesn't mention diazinon.... And the reason
                                                                       is because all organophosphates are different. Some are
                                                                       nerve gas, some kill people, some are insecticide. There's
Maritime Overseas' counsel responded in his opening
                                                                       not a single article anywhere that says diazinon causes
statement:
                                                                       these effects.
  [W]e think the medical evidence will show that the effects
  of diazinon are not long-term but, indeed, are confined                                     *424 * * *
  within a specific period of time. Certainly no more than
  months.                                                              We have never taken the position that Mr. Ellis did not have
                                                                       acute symptoms due to exposure of the diazinon. Where
   And the evidence will show, and we'll bring in a                    the case differs and where we differ from the plaintiff is
   toxicologist and a neuropsychologist who will testify that          whether Mr. Ellis's current complaints are a result of the
   there is no relationship between the current situation              exposure to diazinon. Does he have long-term, delayed
   exhibited by Mr. Ellis in the exposure to diazinon on the           neurotoxicity as a result to the exposure to the diazinon.
   ship in 1982.                                                       That's the key issue in this case. All these other issues
The dispute over this issue pervaded the examination and               that you have to answer, especially the ones relating to
cross-examination of the eight expert witnesses. The focus of          damages, to medical expenses, to loss of wages, it all falls
all the testimony was not on Ellis's initial poisoning from his        from that decision that you have to make.
exposure to diazinon, but whether he suffered any long-term
injury. The possibility that diazinon causes neurotoxicity was
thoroughly explored, and Maritime Overseas established that                                      ***
no studies or other evidence exist to support the opinions of          We have had article after article referred to, that have
                                                                       all been discussed, organophosphate poisoning and the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             21
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

  effects of organophosphate poisoning. We've tried to
  show—and I've been accused of nitpicking for doing
  it—that each article relied on ... doesn't support a            Ante at 412. Of course, none of these evil effects is present
  determination that exposure to diazinon does cause long-        in this case. Ellis not only understood Maritime Overseas'
  term delayed neurotoxicity, period. It didn't support it.       position and had every opportunity to cure the defects
  And what the plaintiff has tried to do is say the literature    in his evidence, he and Maritime Overseas purported to
  talks about organophosphate exposure, diazinon is an            offer all the evidence in existence on whether diazinon can
  organophosphate, therefore this has got to be it....            cause neurotoxicity. There can be no question in this case
                                                                  that the record was fully developed. To say that a review
(Emphasis added.)                                                 of the sufficiency of evidence admitted without objection
The Court states that to determine now whether Maritime           deprives the trial court of its gatekeeping function is to
Overseas' scientific evidence was unreliable “would base          say that Schaefer, Crye, and Havner were wrongly decided.
appellate review on a record that was not made.” Ante at 411.     In Schaefer, for example, a physician testified, just as in
That simply is not true. Maritime Overseas did not ambush         the present case, that the plaintiff's injury was caused by a
Ellis on the substance of the expert testimony. The record        particular agent. Defendant did not object to this testimony.
shows that it was, in counsel's words, “the key issue” in the     Still, this Court held that the evidence had no probative
case. The parties purported to present all available evidence     value because there was nothing in the record to indicate that
on the issue whether diazinon could cause neurotoxicity.          the injury could have occurred as the witness testified. The
This is not a case where a party could have offered more or       witness's mere opinion was not enough to support a judgment.
different scientific evidence had it known that its opponent      The same situation is present in this case, except that here
objected to the evidence as unreliable. Maritime Overseas         the parties clearly made every *425 effort to produce all
reasserted its contentions in its motion for new trial and on     available evidence, whereas that is not at all clear in Schaefer.
appeal. There can be no question that Maritime Overseas           Second, the Court says that the cases I have cited—it refers
challenged the reliability of Ellis's scientific evidence.        to none of them by name—are distinguishable because “those
                                                                  cases involve no evidence challenges where, on the face
                                                                  of the record, the evidence lacked probative value.... In
                                                                  contrast, by its own admission, Maritime is not making a no
                              D
                                                                  evidence complaint.” Ante at 412. I have already explained
The Court does not attempt to argue that Ellis's evidence had     that Maritime Overseas' complaint is really that there is no
any probative value. It holds that even if the evidence had       evidence of some damages, and that the Court's effort to
no probative value, it must be considered some evidence to        categorize Maritime Overseas' position more rigidly is unfair
support the judgment on appeal if it was not objected to. This    to the arguments made in its briefs. But assume that all
holding is squarely contrary to Schaefer, Crye, Havner, and       the cases I have cited involved no-evidence challenges and
the other cases I have cited. The Court has two responses.        that this case does not. What possible difference can that
                                                                  make to the Court? Why is the necessity of objection to
First, the Court says that to allow an argument that scientific   the evidence less important when the appellate complaint
evidence admitted without objection was nevertheless              is no evidence? As the Court's own authority, Sumitomo
unreliable and non-probative would “take away the trial           Bank, points out, the necessity of objection is more important
court's gatekeeping function” and thus would:                     when the complaint is that there is no evidence to support
                                                                  a judgment and therefore judgment should be rendered in
            usurp the orderly and efficient                       the complainant's favor. When the request is only for a new
            disposition of appeals, deprive the                   trial, a reassessment of evidence admitted without objection is
            proffering party of an opportunity to                 “acceptable”. Sumitomo Bank, 717 F.2d at 218. Moreover, the
            cure any defects in its evidence that                 trial court's gatekeeping function which the Court argues must
            the objecting party might pose, and                   be preserved is “take[n] away”, ante at 412, just as effectively
            in some cases, place appellate courts                 in a no-evidence appeal.
            in the undesirable position of making
            decisions about evidentiary reliability               The Court's attempts to distinguish Havner, Crye, Schaefer,
            absent a fully developed record.                      and the long line of cases that precedes them are flawed.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            22
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

                                                                     jurisprudence of a vague and universal duty to object to
                                                                     scientific evidence before or during trial.
                                E

The use of scientific evidence at trial poses unique problems.
Sometimes, as in Havner, the entire body of evidence is                                         *426 III
unreliable from a scientific viewpoint. At other times, as in
Crye and Schaefer, the evidence is unreliable because it is          Maritime Overseas' challenge to Ellis's scientific evidence is
based on assumptions that cannot be demonstrated. In still           valid. Although Ellis's experts testified that Ellis's exposure
other cases, like this one, the evidence is unreliable only as it    to diazinon caused neurotoxicity, there was no basis for their
pertains to a part of the claims. For the most part, I agree with    opinions in any scientific literature or experimentation. The
the Court that the issue of the reliability of scientific evidence   experts reviewed all the literature regarding neurotoxicity
should be raised in the trial court. The exception is when the       from exposure to pesticides in general and organophosphates
evidence is plainly lacking in probative value—the moon is           in particular; none was omitted. Nowhere in the literature is
made of green cheese. But it is not at all clear what procedures     there any demonstration that diazinon causes neurotoxicity.
should be used to raise reliability challenges. The Court refers
to motions in limine, although as a general rule rulings on          Ellis's position is that diazinon is an organophosphate, some
such motions do not preserve error. The Court also refers to         organophosphates cause neurotoxicity (although some do
summary judgments, although this procedure may not work              not), and therefore diazinon causes neurotoxicity. The logical
well when testimony is important to illuminate the issue. The        fallacy in this syllogism is apparent. The record establishes
Court insists that there be an objection, but Havner shows           that no scientific evidence exists for concluding that diazinon
the difficulty of objecting to an entire case. Moreover, once        is among the organophosphates that causes neurotoxicity or
the issue has been identified, why should further objection be       among those that do not. There is simply no way to tell.
necessary?
                                                                     In Havner, plaintiffs offered extensive epidemiological
For over two years, the Supreme Court Advisory Committee,            evidence showing a relationship between Bendectin and
which advises the Court on all rules of procedure, and the           birth defects, but the relationship was never shown to be
State Bar of Texas Committee on the Administration of Rules          statistically significant. We held that that was no evidence
of Evidence, which monitors the operation of the Rules of            to support a finding that Bendectin causes birth defects. The
Evidence, have tried to fashion rules governing the timing           evidence in the present case is even weaker than the evidence
and manner of objections to scientific evidence. The seventy-        in Havner. Here there is no evidence at all, other than
plus members of these highly respected committees have               Ellis's experts' bare opinions, showing a relationship between
broad experience and expertise in procedural and evidentiary         diazinon exposure and neurotoxicity. Moreover, all physical
matters. Last fall the Advisory Committee, after considering         medical evidence—electroencephalograms, peripheral nerve
the work of the State Bar Committee, concluded that the              tests, an MRI, and a CAT scan—have shown Ellis to be in
problem of how and when to object to scientific evidence             normal health, aside from problems relating to obesity, high
is complex and involves many difficult considerations. The           blood pressure, smoking, and alcohol dependency. Under our
Advisory Committee recommended to this Court that any                precedents, the experts' unsupported opinions cannot provide
rules await a development of the issues in appellate opinions        a basis for a judgment against Maritime Overseas.
carefully analyzing the various concerns. That counsel
seemed sound at the time, but today's confusing opinion
makes the alternative of a rules solution far more appealing.
                                                                                                *****

In simply mandating an objection before or during trial, the         Because there is no basis for Ellis's experts' opinions that his
Court appears oblivious to the considerations its advisory           exposure to diazinon caused him to suffer from neurotoxicity,
committees believed to be complex and difficult. The Court's         those opinions were not probative evidence and should not
analysis is really confined to a single thought: parties should      have been considered by the court of appeals in assessing
not be “ambushed”. That relatively innocuous proposition             the factual sufficiency of the evidence of causation of Ellis's
simply cannot support the addition to our procedural                 damages. Accordingly, I would reverse the court of appeals'




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              23
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (1998)
41 Tex. Sup. Ct. J. 683

judgment and remand the case to that court to redetermine the
                                                                       Parallel Citations
factual sufficiency of the evidence.
                                                                       41 Tex. Sup. Ct. J. 683


Footnotes
1      See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. duPont de Nemours v.
       Robinson, 923 S.W.2d 549 (Tex.1995); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997).
2      Maritime also cites Brock v. Merrell Dow Pharms., Inc., 874 F.2d 307 (5 th Cir.), modified, 884 F.2d 166 (1989), to support its
       argument that Ellis's experts' testimony was not proper scientific evidence. However, like Daubert, Robinson and Havner, in Brock,
       Merrell Dow challenged the scientific evidence before the jury verdict. Here, Maritime did not challenge Ellis's scientific evidence
       until after the jury verdict.


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    24
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517


                                                                         676 Cases that cite this headnote
                    964 S.W.2d 922
                 Supreme Court of Texas.
                                                                   [2]   Constitutional Law
        Charles MAYHEW, Sr., Charles Mayhew,                                 Advisory Opinions
         Jr., The Estate of Audrey Mayhew, and                           Under separation of powers doctrine, courts
         Sunnyvale Properties, Ltd., Petitioners,                        are without jurisdiction to issue advisory
                             v.                                          opinions because such is function of executive
       The TOWN OF SUNNYVALE, Respondent.                                department, not judiciary. Vernon's Ann.Texas
                                                                         Const. Art. 2, § 1.
           No. 95–0771. | Argued Oct. 24,
         1996. | Decided March 13, 1998.                                 12 Cases that cite this headnote
         | Rehearing Overruled May 8, 1998.
                                                                   [3]   Eminent Domain
Landowners filed action challenging town's denial of their
                                                                            Conditions precedent to action; ripeness
application for planned development. The 192nd District
Court, Dallas County, Merrill Hartman, J., granted town's                Landowners' failure to request variance or file
motion for summary judgment. Landowners appealed. The                    another planned development application before
Court of Appeals, Whitham, J., 774 S.W.2d 284, affirmed                  filing suit did not preclude ripeness of their
in part, reversed in part and remanded. After trial on the               regulatory takings claims based on town's denial
merits, the District Court, Dallas County, Merrill Hartman,              of initial planned development application,
J., found for landowners. Town appealed. The Court of                    under circumstances indicating that landowners
Appeals, 905 S.W.2d 234, reversed. Application for writ                  had negotiated with town for over a year,
of error was granted. The Supreme Court, Abbott, J., held                spent $500,000 in expenditures on application,
that: (1) landowners' claims were ripe despite their failure             and finally made compromise proposal for
to request variance or file another planned development                  smaller development with minimum number of
application before filing suit; (2) town's denial of planned             units landowners believed necessary to make
development application substantially advanced legitimate                economically viable use of land, and in light of
governmental interests in protecting community from ill                  town's clear position that it would not approve
effects of urbanization and did not totally destroy all value of         development at that size so as to render futile any
property, and thus did not constitute regulatory taking; and             request for variance or reapplication.
(3) town did not violate landowners' substantive or procedural
                                                                         31 Cases that cite this headnote
due process rights, nor their equal protection rights, by
denying planned development application.
                                                                   [4]   Constitutional Law
Reversed and rendered.                                                       Questions of law or fact
                                                                         Eminent Domain
                                                                            Questions for jury

 West Headnotes (31)                                                     Zoning and Planning
                                                                             Questions for jury
                                                                         Although determining whether property
 [1]     Appeal and Error                                                regulation    is     unconstitutional      requires
              Determination of questions of jurisdiction                 consideration of a number of factual issues,
         in general                                                      ultimate question of whether zoning ordinance
         Appeal and Error                                                constitutes compensable taking or violates due
            Cases Triable in Appellate Court                             process or equal protection is question of law, not
         Ripeness is element of subject matter jurisdiction              question of fact. U.S.C.A. Const.Amends. 5, 14.
         and thus is legal question, is subject to de novo
         review, and can be raised by court sua sponte.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

                                                                      community from ill effects of urbanization,
        151 Cases that cite this headnote                             for purposes of regulatory takings claim;
                                                                      town was uniquely rural and suburban, with
 [5]    Zoning and Planning                                           undivided two-lane roads, clusters of trees, lakes
            Decisions of boards or officers in general                and ponds, and houses on large lots, which
                                                                      would be changed drastically by large planned
        Zoning decisions are vested in discretion of
                                                                      development with at least three residences per
        municipal authorities, and courts should not
                                                                      acre that would more than quadruple population
        assume role of super zoning board.
                                                                      of town. U.S.C.A. Const.Amends. 5, 14.
        Cases that cite this headnote
                                                                      8 Cases that cite this headnote

 [6]    Eminent Domain
                                                               [9]    Eminent Domain
           Zoning and Permits
                                                                          What Constitutes a Taking; Police and
        Application of general zoning law to particular
                                                                      Other Powers Distinguished
        property constitutes regulatory taking if
                                                                      Eminent Domain
        ordinance does not substantially advance
                                                                          Zoning, Planning, or Land Use; Building
        legitimate state interests or it denies owner all
                                                                      Codes
        economically viable use of his or her land.
        U.S.C.A. Const.Amends. 5, 14.                                 Compensable regulatory taking can occur when
                                                                      governmental agencies impose restrictions that
        11 Cases that cite this headnote                              either deny landowners all economically viable
                                                                      use of their property, or unreasonably interfere
 [7]    Eminent Domain                                                with landowners' rights to use and enjoy their
            What Constitutes a Taking; Police and                     property. U.S.C.A. Const.Amends. 5, 14.
        Other Powers Distinguished                                    38 Cases that cite this headnote
        Property regulation must substantially advance
        a legitimate governmental interest to pass
                                                               [10]   Eminent Domain
        constitutional muster, which thus requires
                                                                          What Constitutes a Taking; Police and
        examination of effect of regulation and
                                                                      Other Powers Distinguished
        legitimate state interest it is supposed to advance,
        although requirement is not equivalent to rational            Eminent Domain
        basis standard applied to due process and equal                   Zoning, Planning, or Land Use; Building
        protection claims. U.S.C.A. Const.Amends. 5,                  Codes
        14.                                                           Governmental restriction denies landowner
                                                                      all economically viable use of property or
        3 Cases that cite this headnote                               totally destroys value of property, and thus
                                                                      constitutes compensable regulatory taking, if
 [8]    Eminent Domain                                                restriction renders property valueless. U.S.C.A.
           Particular cases                                           Const.Amends. 5, 14.
        Zoning and Planning                                           19 Cases that cite this headnote
             Architectural and structural designs; area
        and lot considerations
                                                               [11]   Eminent Domain
        Zoning and Planning
                                                                          Zoning, Planning, or Land Use; Building
            Other particular considerations
                                                                      Codes
        Town's denial of landowners' planned
                                                                      Determining whether all economically viable
        development application substantially advanced
                                                                      use of property has been denied by
        legitimate governmental interests in protecting
                                                                      government restriction, so as to create


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

        compensable regulatory taking, entails relatively                  Particular cases
        simple analysis of whether value remains in                   Zoning and Planning
        property after governmental action. U.S.C.A.                      Maps, Plats, and Plans; Subdivisions
        Const.Amends. 5, 14.
                                                                      Town's denial of landowners' planned
        14 Cases that cite this headnote                              development application did not totally destroy
                                                                      all value of property so as to constitute
                                                                      unconstitutional regulatory taking, in light
 [12]   Eminent Domain                                                of $2.4 million value for property even
            What Constitutes a Taking; Police and                     after denial of planned development. U.S.C.A.
        Other Powers Distinguished                                    Const.Amends. 5, 14.
        Determining     whether    government      has
        unreasonably interfered with landowner's                      9 Cases that cite this headnote
        right to use and enjoy property, for
        purposes of regulatory takings claim, requires         [16]   Eminent Domain
        consideration of economic impact of regulation                   Particular cases
        and extent to which regulation interferes
                                                                      Zoning and Planning
        with distinct investment-backed expectations.
                                                                           Architectural and structural designs; area
        U.S.C.A. Const.Amends. 5, 14.
                                                                      and lot considerations
        26 Cases that cite this headnote                              Landowners had no reasonable investment-
                                                                      backed expectation to build 3,600 residential
                                                                      units on their property, and thus, town did not
 [13]   Eminent Domain
                                                                      unreasonably interfere with their right to use
            What Constitutes a Taking; Police and
                                                                      and enjoy their property, so as to constitute
        Other Powers Distinguished
                                                                      compensable regulatory taking, by denying
        Economic impact of regulation, for purposes of                owners' application for planned development
        regulatory takings claim, compares value that                 of that size which would have at least
        has been taken from property by regulation                    three homes per acre and would quadruple
        with value that remains in property, and loss of              town's population; owners originally purchased
        anticipated gains or potential future profits is not          property for ranching and used it for that
        usually considered. U.S.C.A. Const.Amends. 5,                 purpose for nearly 40 years, owners' subsequent
        14.                                                           purchases of additional land occurred after town
                                                                      had restricted development density for 12 years.
        3 Cases that cite this headnote
                                                                      U.S.C.A. Const.Amends. 5, 14.

 [14]   Eminent Domain                                                29 Cases that cite this headnote
           Zoning and Permits
        Existing and permitted uses of property                [17]   Eminent Domain
        constitute primary expectation of landowner                       What Constitutes a Taking; Police and
        that is affected by regulation, for purposes                  Other Powers Distinguished
        of regulatory taking claim, and landowner's                   Historical uses of property are critically
        knowledge of existing zoning is to be considered              important when determining reasonable
        in determining whether regulation interferes                  investment-backed expectation of landowner for
        with owner's investment-backed expectations.                  purposes of regulatory taking claim. U.S.C.A.
        U.S.C.A. Const.Amends. 5, 14.                                 Const.Amends. 5, 14.

        12 Cases that cite this headnote                              3 Cases that cite this headnote


 [15]   Eminent Domain                                         [18]   Eminent Domain


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

             Zoning and Permits                                    Zoning and Planning
        Existing zoning of property at time it                         Other particular considerations
        was acquired is to be considered in                        Town did not act irrationally or arbitrarily
        determining whether zoning regulation interferes           in denying landowners' planned development
        with investment-backed expectations for                    application, and thus did not violate their
        purposes of regulatory taking claim. U.S.C.A.              substantive due process rights, in light of town's
        Const.Amends. 5, 14.                                       legitimate governmental interests regarding
                                                                   urbanization effects of development, and fact
        3 Cases that cite this headnote                            that denial of development application was
                                                                   clearly rationally related to those interests.
 [19]   Constitutional Law                                         U.S.C.A. Const.Amends. 5, 14.
            Proceedings and review
                                                                   6 Cases that cite this headnote
        Court should not set aside zoning determination
        for substantive due process violation unless
        action has no foundation in reason and is a mere    [23]   Constitutional Law
        arbitrary or irrational exercise of power having               Zoning and Land Use
        no substantial relation to public health, public           As-applied equal protection challenge to
        morals, public safety, or public welfare in its            zoning decision requires that government treat
        proper sense. U.S.C.A. Const.Amends. 5, 14.                claimant different from other similarly-situated
                                                                   landowners without any reasonable basis.
        2 Cases that cite this headnote                            U.S.C.A. Const.Amends. 5, 14.

                                                                   5 Cases that cite this headnote
 [20]   Constitutional Law
            Zoning and Land Use
        Generally applicable zoning ordinance will          [24]   Constitutional Law
        survive substantive due process challenge if                   Zoning and Land Use
        it is designed to accomplish objective within              Zoning ordinance generally must only be
        government's police power and if rational                  rationally related to legitimate state interest
        relationship exists between ordinance and its              to survive equal protection challenge, unless
        purpose. U.S.C.A. Const.Amends. 5, 14.                     ordinance discriminates against suspect class.
                                                                   U.S.C.A. Const.Amends. 5, 14.
        5 Cases that cite this headnote
                                                                   2 Cases that cite this headnote
 [21]   Constitutional Law
            Zoning and Land Use                             [25]   Constitutional Law
        If it is at least fairly debatable that zoning                 Economic or social regulation in general
        decision was rationally related to legitimate              Constitutional Law
        government interests, decision must be upheld                  Zoning and Land Use
        against substantive due process challenge;                 Economic regulations, including zoning
        ordinance will violate substantive due process             decisions, have traditionally been afforded only
        only if it is clearly arbitrary and unreasonable.          rational relation scrutiny under equal protection
        U.S.C.A. Const.Amends. 5, 14.                              clause. U.S.C.A. Const.Amends. 5, 14.

        6 Cases that cite this headnote                            Cases that cite this headnote


 [22]   Constitutional Law                                  [26]   Constitutional Law
            Particular issues and applications                         Selective enforcement



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      4
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

        Zoning and Planning
            Other particular considerations                   [30]   Zoning and Planning
                                                                          Legislative, administrative, judicial, or
        Landowners seeking approval of planned 1200–
                                                                     quasi-judicial power
        acre residential development application were
        not similarly situated to landowners seeking                 Zoning is legislative act, and, in making
        to build on small parcels for purposes of                    legislative zoning determination, city or town is
        landowners' equal protection claim. U.S.C.A.                 entitled to consider all facts and circumstances
        Const.Amends. 5, 14.                                         which may affect property, community, and
                                                                     welfare of its citizens.
        2 Cases that cite this headnote
                                                                     1 Cases that cite this headnote

 [27]   Constitutional Law
            Zoning and Land Use                               [31]   Constitutional Law
                                                                         Proceedings and review
        Zoning and Planning
            Other particular considerations                          Zoning and Planning
                                                                         Notice
        Town did not act irrationally or arbitrarily
        in denying landowners' planned development                   Zoning and Planning
        application, and thus did not violate their                      Hearings in general
        equal protection rights, in light of town's                  Town satisfied requirements of procedural
        legitimate governmental interests regarding                  due process concerning zoning decision
        urbanization effects of development, and fact                by providing landowners with notice and
        that denial of development application was                   opportunity to be heard before town denied
        clearly rationally related to those interests.               their planned development application. U.S.C.A.
        U.S.C.A. Const.Amends. 5, 14.                                Const.Amends. 5, 14.

        2 Cases that cite this headnote                              1 Cases that cite this headnote


 [28]   Constitutional Law
            Notice and Hearing
                                                             Attorneys and Law Firms
        If individual is deprived of property right,
        government must afford appropriate and                *925 Don Black, P. Michael Jung, Dallas, Charles L.
        meaningful opportunity to be heard to                Siemon, Marcella Larsen, Boca Raton, FL, for Petitioners.
        comport with procedural due process. U.S.C.A.
        Const.Amends. 5, 14.                                 LaDawn H. Conway, Cole B. Ramey, Terry D. Morgan,
                                                             Robert H. Freilich, Kansas City, MO, W. Alan Wright,
        4 Cases that cite this headnote                      Dallas, for Respondent.

                                                             Opinion
 [29]   Constitutional Law
            Proceedings                                      ABBOTT, Justice, delivered the opinion for a unanimous
        Plaintiff alleging procedural due process takings    Court.
        claim must establish that he or she was deprived
        of notice and opportunity to be heard with respect   We are confronted with two primary questions in this
        to decision affecting his or her property rights.    regulatory takings case. First, we must determine the extent
        U.S.C.A. Const.Amends. 5, 14.                        to which the Mayhews' claims are ripe for our consideration.
                                                             Second, we must decide whether the denial of the Mayhews'
        4 Cases that cite this headnote                      planned development proposal violated their constitutional
                                                             rights. While we conclude that the Mayhews' claims are ripe,
                                                             we hold that the Town did not violate their constitutional



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       5
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

rights. We reverse the court of appeals' judgment dismissing    if it could build a minimum of 3,600 units, the Mayhews
the Mayhews' claims, and we render judgment that the            requested approval to build between 3,650 and 5,025 units on
Mayhews take nothing.                                           their land, a density of over three units per acre.

                                                                The Town employed a professional planning and engineering
                                                                firm to initially review the proposal. This firm, after finding
                              I
                                                                that the proposal satisfied each of the requirements of the
The Town of Sunnyvale, a Texas general law municipal            Town's zoning ordinance, recommended approval of the
corporation with a population of approximately 2,000 people,    proposal. The proposal was then forwarded to the Town's
is located approximately twelve miles east of the central       planning and zoning commission.
business district of Dallas. The Town contains approximately
10,941 acres of land, but approximately 8,190 acres are         While the commission was reviewing the Mayhews'
currently vacant. The Town's first zoning ordinance, adopted    application, the Town council passed a moratorium on
in 1965, allowed residential development at a density of 3.6    planned developments, which was in effect until the Spring
units per acre. In 1973, in response to septic tank failures,   of 1987. Despite the moratorium, the commission continued
the Town modified its zoning ordinance and enacted a one-       to consider the Mayhews' application. After four months of
acre minimum lot size requirement. However, when sanitary       consideration, the commission recommended denial of the
sewer facilities were later made available to the Town, the     Mayhews' application on November 20, 1986. In support
Town did not repeal its one-acre minimum lot requirement.       of its recommendation, the commission noted that the
                                                                development would severely impact the ability of the Town
The Mayhew family owns approximately 1196 acres of land         to provide adequate municipal services. The commission
in Sunnyvale. From 1941 to 1965, the Mayhews acquired 850       also reasoned that the Town had a very unique character
acres of their property at a cost of $372,000.00. The Mayhews   and lifestyle that differed from the proliferation of multi-
used this property for ranching for a number of years. In       family and single-family homes on small lots in adjoining
1985 and 1986, the Mayhews purchased an additional 346          municipalities. According to the commission, a less dense use
acres in the Town for development purposes. The Mayhews'        of the property was preferable.
property comprises 26% of the land available for residential
development in the Town.                                        The Town council appointed a negotiating committee of
                                                                two Town councilmen, the Town mayor, and the Town
In 1985, the Mayhews began meeting with various Town            attorney. The Mayhews met with the committee and both
officials seeking permission to proceed with a planned          sides tentatively agreed to a compromise development of
development with a density in excess of the then allowable      3,600 units. Subsequently, on January 13, 1987, the Town
one-dwelling-unit-per-acre residential zoning. *926 The         council met to vote on the proposal. During the council
Mayhews told the Town a planned development would               meeting, Charles Mayhew, Jr. told the council that anything
not be feasible under one-unit-per-acre zoning. In 1986,        less than approval for 3,600 units would be considered an
after meeting with the Mayhews, the Town adopted a              outright denial. Despite the prior compromise, the Town
comprehensive plan providing for a projected population of      council voted to deny the Mayhews' development proposal by
25,000 by the year 2006, and 30,000 to 35,000 persons by        a four-to-one vote. A subsequent meeting to reconsider the
the year 2016. The Town also amended article XV of its          planned development request was canceled by the Town.
zoning ordinances to allow, upon council approval, planned
developments with densities in excess of one dwelling-unit      In March 1987, the Mayhews sued the Town and the
per acre.                                                       four individual council members who voted against their
                                                                proposal, alleging that the refusal to approve the planned
In July 1986, after spending over $500,000 conducting studies   development violated their state and federal constitutional
and preparing evaluative reports, the Mayhews submitted         rights to procedural due process, substantive due process,
their planned development proposal to the Town. If the          and equal protection. The Mayhews further alleged that
proposal was approved, the Mayhews planned to sell their        the Town's decision was a taking of their property without
property to the Trammel Crow Company for development.           payment of just or adequate compensation. The Mayhews
Because Trammel Crow would only develop the property            also brought various statutory claims.



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

                                                                   the Town of Sunnyvale has refused to allow economically
The Town and the individual council members moved for              viable development on [the Mayhews'] property with the
summary judgment, which the district court granted. On             intention to prevent all development ... and thereby impose
appeal, the court of appeals affirmed the summary judgment         a servitude for the benefit of the public.
in favor of the individual council members, and also affirmed
the summary judgment in favor of the Town on the Mayhews'          101. In denying the application for planned development
statutory claims. However, the appellate court reversed the        approval ..., and in enacting numerous moratoria on
summary judgment on the Mayhews' constitutional claims             applications for consideration of planned development
against the Town, concluding that material fact questions          approval, the Town of Sunnyvale has acted pursuant to an
existed regarding whether the Town violated the Mayhews'           official policy not to allow development with a density of
state and federal constitutional rights. Mayhew v. Town of         greater than one dwelling unit per acre.
Sunnyvale, 774 S.W.2d 284, 286 (Tex.App.—Dallas 1989,
                                                                   106. Prior to the Town Council's action to deny
writ denied), cert. denied, 498 U.S. 1087, 111 S.Ct. 963, 112
                                                                   the application for [the] planned development ..., the
L.Ed.2d 1049 (1991).
                                                                   [Mayhews'] property had a fair market value of at least
                                                                   $9,700,000.00.
Upon remand, the district court held a bench trial. The court
heard testimony from thirty-five witnesses, most of whom           107. The value of the [Mayhews'] property on January
were experts. At the conclusion of the trial, the district court   13, 1987, with development approval ... and without the
made numerous findings of fact *927 and conclusions of             application of the one-acre zoning requirement, would have
law, including findings that:                                      been greater than $15,000,000.00.

  26. The Mayhew Ranch Planned Development was well-               108. As a result of the Town Council's denial of the
  planned and satisfied all of the requirements contained          application for [the] planned development ..., and the
  in Article XV and the Zoning Ordinance of the Town of            continued application of the one-acre zoning, the fair
  Sunnyvale.                                                       market value of the [Mayhews'] property was reduced to
                                                                   $2,400,000.00.
  36. Adequate steps were taken in the design of the Mayhew
  Ranch Planned Development to protect the public health,          115. The minimum residential density necessary for
  safety, welfare, and morals of the Town of Sunnyvale and         economic viability on [the Mayhews'] property is
  its citizens.                                                    approximately 3,600 dwelling units or three dwelling units
                                                                   per acre.
  40. Growth and development in the Town of Sunnyvale
  cannot possibly reach the population projection in the           117. Agriculture is not an economically viable use of [the
  Comprehensive Plan of the Town of Sunnyvale under the            Mayhews'] property.
  Town's one-acre zoning.
                                                                   118. No knowledgeable investor would purchase [the
  78. The Planning and Zoning Commission's                         Mayhews'] property as it is currently zoned.
  recommendations to the Town Council of November 20,
  1986 had no basis in fact and were not rational.                 120. The Town Council's decision to deny the application
                                                                   for [the] planned development ... has the practical effect of
  82. The Town of Sunnyvale's one-acre zoning does not             depriving [the Mayhews] of the only economically viable
  bear any factual relationship to valid planning principles or    use of their property.
  objectives.
                                                                   121. The result of the Town Council's decision to deny the
  87. The existing development in the Town of Sunnyvale            application for [the] planned development ... is to destroy
  is suburban and urban and any “rural” atmosphere that            the value of [the Mayhews'] property.
  exists is the result of the existence of undeveloped private
  property.                                                        131. The actions of the Town of Sunnyvale reveal a pattern
                                                                   and practice which
  99. In denying the application for planned development
  approval for the Mayhew Ranch Planned Development,



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

                                                                  cannot be waived and may be raised for the first time on
  demonstrates the intent of the Town of Sunnyvale to deny        appeal by the parties or by the court); North Alamo Water
  any application for developmental approval with a density       Supply Corp. v. Texas Dep't of Health, 839 S.W.2d 455,
  greater than one dwelling unit per acre.                        457 (Tex.App.—Austin 1992, writ denied)(issue of court's
                                                                  jurisdiction presented a question of law). See also Reahard v.
  133. The Town of Sunnyvale has closed the door on
                                                                  Lee County, 30 F.3d 1412, 1415 (11th Cir.1994)(ripeness is a
  future reapplication by [the Mayhews] at a realistic or
                                                                  jurisdictional issue subject to a de novo review), cert. denied,
  economically viable density.
                                                                  514 U.S. 1064, 115 S.Ct. 1693, 131 L.Ed.2d 557 (1995);
                                                                  Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161,
Based on its findings, the district court concluded that the
                                                                  163–64 (9th Cir.1993)(ripeness is a question of law subject to
case was ripe for adjudication and that the Mayhews should
                                                                  de novo review); Herrington v. County of Sonoma, 857 F.2d
prevail on their procedural due process, substantive due
                                                                  567, 568 (9th Cir.1988)(same), cert. denied, 489 U.S. 1090,
process, and equal protection claims under the federal and
                                                                  109 S.Ct. 1557, 103 L.Ed.2d 860 (1989).
state constitutions. The district court further concluded that
the Town's decision to deny the application for the planned
                                                                   [2] The ripeness requirement emanates, in part, from
development was an unconstitutional taking under both the
                                                                  the separation of powers provision set out in article II,
federal and state *928 constitutions. The court rendered
                                                                  section 1 of the Texas Constitution. Under the separation
judgment in favor of the Mayhews, awarding $5 million in
                                                                  of powers doctrine, courts are without jurisdiction to
damages, $2.3 million in prejudgment interest, approximately
                                                                  issue advisory opinions because such is the function of
$1.2 million in attorney's fees, and costs.
                                                                  the executive department, not the judiciary. Texas Ass'n
                                                                  of Business, 852 S.W.2d at 444; see also Public Util.
The court of appeals reversed the district court's judgment and
                                                                  Comm'n v. Houston Lighting & Power Co., 748 S.W.2d
dismissed the Mayhews' claims against the Town, holding
                                                                  439 (Tex.1987)(“A court has no jurisdiction to render an
that none of the claims was ripe for review. Town of
                                                                  advisory opinion on a controversy that is not yet ripe.”);
Sunnyvale v. Mayhew, 905 S.W.2d 234 (Tex.App.—Dallas
                                                                  City of Garland, 691 S.W.2d at 605 (same); Coalson v. City
1994). In a supplemental opinion, the court of appeals
                                                                  Council of Victoria, 610 S.W.2d 744, 747 (Tex.1980)(Texas
addressed the merits of the Mayhews' claims in light of this
                                                                  Constitution precludes district courts from giving advisory
Court's opinion in Taub v. City of Deer Park, 882 S.W.2d
                                                                  opinions in prematurely filed actions).
824 (Tex.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 904,
130 L.Ed.2d 787 (1995). The court concluded that, even if
                                                                  The ripeness doctrine conserves judicial time and resources
the Mayhews' claims were ripe, the evidence was factually
                                                                  for real and current controversies, rather than abstract,
insufficient to support the trial court's findings. 905 S.W.2d
                                                                  hypothetical, or remote disputes. See Browning–Ferris, Inc.
at 259–68.
                                                                  v. Brazoria County, 742 S.W.2d 43, 49 (Tex.App.—Austin
                                                                  1987, no writ). In this regard, the state ripeness doctrine is
We granted the Mayhews' application for writ of error to
                                                                  similar to the federal ripeness doctrine in that it has both
consider whether their claims were ripe for review and
                                                                  constitutional and prudential dimensions.
whether judgment should be rendered on the Mayhews' state
and federal constitutional claims.
                                                                  This Court has never addressed the ripeness of constitutional
                                                                  challenges to land use regulation. We are aware of only one
                                                                  published Texas decision, City of El Paso v. Madero Dev.,
                              II                                  803 S.W.2d 396, 400 (Tex.App.—El Paso 1991, writ denied),
                                                                  cert. denied, 502 U.S. 1073, 112 S.Ct. 970, 117 L.Ed.2d
 [1] Our initial inquiry is whether the Mayhews' claims           135 (1992), in which the ripeness of regulatory takings and
are ripe for this Court's review. Ripeness is an element of       related constitutional claims was analyzed. In that case, the
subject matter jurisdiction. State Bar of Texas v. Gomez, 891     court of appeals relied heavily on federal law to hold that the
S.W.2d 243, 245 (Tex.1994); City of Garland v. Louton, 691        landowner's claims were not ripe. We agree that we should
S.W.2d 603, 605 (Tex.1985). As such, ripeness is a legal          look to the experience of the federal courts in determining
question subject to de novo review that a court can raise sua     the ripeness of constitutional challenges *929 to land-use
sponte. Texas Ass'n of Business v. Texas Air Control Bd., 852
                                                                  regulations. 1 Cf. Texas Ass'n of Business, 852 S.W.2d at
S.W.2d 440, 444–45 (Tex.1993)(subject matter jurisdiction


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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

444 (“Because standing is a constitutional prerequisite to        However, futile variance requests or re-applications are not
maintaining a suit under both federal and Texas law, we look      required. See Lucas v. South Carolina Coastal Council, 505
to the more extensive jurisprudential experience of the federal   U.S. 1003, 1012 n. 3, 112 S.Ct. 2886, 2891 n. 3, 120 L.Ed.2d
courts on this subject for any guidance it may yield.”).          798 (1992); MacDonald, 477 U.S. at 352 n. 8, 106 S.Ct. at
                                                                  2567–68 n. 8; Kawaoka v. City of Arroyo Grande, 17 F.3d
                                                                  1227, 1232 (9th Cir.), cert. denied, 513 U.S. 870, 115 S.Ct.
                                                                  193, 130 L.Ed.2d 125 (1994); Southern Pac. Transp. Co. v.
                              A
                                                                  City of Los Angeles, 922 F.2d 498, 504 (9th Cir.1990), cert.
The federal courts have recognized, as a prudential matter,       denied, *930 502 U.S. 943, 112 S.Ct. 382, 116 L.Ed.2d 333
an essential prerequisite to the ripeness of federal regulatory   (1991); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
takings and related constitutional claims. Suitum v. Tahoe        1575 (11th Cir.1989); Hoehne v. County of San Benito, 870
Regional Planning Agency, 520 U.S. 725, –––– – –––– & n. 7,       F.2d 529, 534–35 (9th Cir.1989); Herrington v. County of
117 S.Ct. 1659, 1664–65 & n. 7, 137 L.Ed.2d 980 (1997). This      Sonoma, 857 F.2d at 569–70; Kinzli v. City of Santa Cruz, 818
“essential prerequisite” requires “a final and authoritative      F.2d 1449, 1454–55 (9th Cir.), modified on other grounds,
determination of the type and intensity of development legally    830 F.2d 968 (9th Cir.1987), cert. denied, 484 U.S. 1043, 108
permitted on the subject property. A court cannot determine       S.Ct. 775, 98 L.Ed.2d 861 (1988).
whether a regulation has gone ‘too far’ unless it knows how
far the regulation goes.” MacDonald, Sommer & Frates v.           Moreover, the term “variance” is “not definitive or
Yolo County, 477 U.S. 340, 348, 106 S.Ct. 2561, 2565–             talismanic;” it encompasses “other types of permits or
66, 91 L.Ed.2d 285 (1986) (citations omitted). In other           actions [that] are available and could provide similar relief.”
words, the federal courts have reasoned that a court cannot       Southern Pacific, 922 F.2d at 503; see also Executive
determine whether a taking or other constitutional violation      100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th
has occurred until the court can compare the uses prohibited      Cir.) (aggrieved landowner must “have sought variances or
by the regulation to any permissible uses that may be made        pursued alternative, less ambitious development plans”), cert.
of the affected property.                                         denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991);
                                                                  Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d
Accordingly, in order for a regulatory takings claim to be        717, 721 (10th Cir.1989)(claim not ripe until initial permit
ripe, there must be a final decision regarding the application    application denied and some effort made to “compromise”
                                                                  with the city to allow some level of development). The
of the regulations to the property at issue. 2 Suitum, 520
                                                                  variance requirement is therefore applied flexibly in order
U.S. at ––––, 117 S.Ct. at 1665; Williamson County Regional
                                                                  to serve its purpose of giving the governmental unit an
Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186,
                                                                  opportunity to “grant different forms of relief or make policy
105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985). A “final
                                                                  decisions which might abate the alleged taking.” Southern
decision” usually requires both a rejected development plan
                                                                  Pacific, 922 F.2d at 503.
and the denial of a variance from the controlling regulations.
Hamilton Bank, 473 U.S. at 187–88, 105 S.Ct. at 3117; see
                                                                  The same “final decision” requirement applies to determine
also MacDonald, 477 U.S. at 351–52 & n. 8, 106 S.Ct. at
                                                                  the ripeness of as-applied due process and equal protection
2567–68 & n. 8 (case was not ripe when a single “intense”
                                                                  challenges to a land-use decision. See, e.g., Hamilton Bank,
subdivision proposal was rejected because a “meaningful
                                                                  473 U.S. at 199–200, 105 S.Ct. at 3123–24 (concluding that
application” had not been made); Hodel v. Virginia Surface
                                                                  due process claim under Fourteenth Amendment was not
Mining & Reclamation Ass'n, 452 U.S. 264, 293–97, 101
                                                                  ripe because the requisite variance had not been sought to
S.Ct. 2352, 2369–71, 69 L.Ed.2d 1 (1981)(Court refused to
                                                                  establish a “final decision,” and utilizing the same rationale
consider takings claim based on general regulatory provision
                                                                  in analyzing the ripeness of the takings claim and the due
that had not been applied to specific properties and from
                                                                  process claim); Taylor Inv., Ltd. v. Upper Darby Township,
which no administrative relief had been sought); Agins v.
                                                                  983 F.2d 1285, 1292–95 (3d Cir.1993)(final decision rule of
Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d
                                                                  MacDonald and Hamilton Bank applies to substantive due
106 (1980)(“as-applied” constitutional challenge was not ripe
                                                                  process, equal protection, and procedural due process claims),
because the property owners had not yet submitted a plan for
                                                                  cert. denied, 510 U.S. 914, 114 S.Ct. 304, 126 L.Ed.2d 252
the development of their property).
                                                                  (1993); Bigelow v. Michigan Dep't of Natural Resources,



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

970 F.2d 154, 159–60 (6th Cir.1992)(procedural due process          that the Town rejected. While the Town's general one-
claim, which was related to plaintiff's takings claim, subject to   acre zoning requirement almost certainly contributed to the
the finality rule); Eide v. Sarasota County, 908 F.2d 716, 725      Town's rejection of the Mayhews' application, the one-acre
(11th Cir.1990)(finality requirement applies to substantive         zoning requirement itself did not cause a discrete injury
due process claim), cert. denied, 498 U.S. 1120, 111 S.Ct.          separate from the harm the Mayhews suffered as a result of
1073, 112 L.Ed.2d 1179 (1991); Herrington, 857 F.2d at              the denial of their planned development proposal because the
569 (final decision requirement applies to substantive due          Mayhews had no intention of pursuing a development with
process and equal protection claims); Norco Constr., Inc.           less than 3,600 units.
v. King County, 801 F.2d 1143, 1145 (9th Cir.1986)(final
decision requirement applies to procedural due process and          The Town maintains that the Mayhews' claims regarding
equal protection claims).                                           the denial of their planned development application are
                                                                    not ripe because the Mayhews submitted only one planned
However, a final decision on the application of the zoning          development application and did not thereafter reapply for
ordinance to the plaintiff's property is not required if the        development or submit a “variance.” The Mayhews counter
plaintiff brings a facial challenge to the ordinance. See           that, under the circumstances of this case, their planned
Pennell v. City of San Jose, 485 U.S. 1, 9–14, 108 S.Ct. 849,       development application and amended request for 3,600 units
856–59, 99 L.Ed.2d 1 (1988); Village of Euclid v. Ambler            were sufficient, and that any further applications would have
Realty Co., 272 U.S. 365, 386, 47 S.Ct. 114, 117–18, 71 L.Ed.       been futile. We agree with the Mayhews.
303 (1926); Nasierowski Bros. Inv. Co. v. City of Sterling
Heights, 949 F.2d 890, 894–95 (6th Cir.1991); Smithfield             [3]     After the Town denied the Mayhews' planned
Concerned Citizens for Fair Zoning v. Town of Smithfield,           development application for 3,600 units, the Mayhews did
907 F.2d 239, 242–43 (1st Cir.1990); Beacon Hill Farm               not thereafter request a variance. Moreover, the Mayhews did
Assocs. II v. Loudoun County Bd. of Supervisors, 875 F.2d           not file another planned development application. Instead, the
1081, 1084–85 (4th Cir.1989).                                       Mayhews filed this suit. Normally, their failure to reapply or
                                                                    seek a variance would be fatal to the ripeness of their claims.
                                                                    See MacDonald, 477 U.S. at 351, 106 S.Ct. at 2567; Hamilton
                                                                    Bank, 473 U.S. at 188–91, 105 S.Ct. at 3117–19. However,
                               B
                                                                    under the unique circumstances of this case, we conclude that
The Mayhews alleged (1) just compensation takings claims,           the Mayhews' constitutional challenges to the Town's denial
(2) “fails to substantially advance” takings claims, (3)            of their planned development application for 3,600 units are
substantive due process and due course claims, (4) equal            ripe for this Court's review.
protection claims, and (5) procedural due process and
due course claims under the United States Constitution              A planned development is not a typical request for a zoning
and Texas Constitution regarding the Town's denial of               change; the density, type, and location of particular uses in
their planned development application for 3,600 units.              the development are left to the planning process and are
The Mayhews also argue in their application for writ of             determined through negotiations between the developer and
error that their constitutional claims challenge the Town's         the town. The evidence in this case establishes the extent to
continued application and enforcement of a blanket one-             which the Mayhews worked with the Town in attempting to
acre zoning designation on their property. We conclude,             have their development approved. The Mayhews originally
however, that this challenge is not independent from their          requested approval to build between 3,650 and 5,025 units
claims stemming from the Town's denial of their planned             on their land. They spent over a year in negotiations with
development proposal. The record in this case clearly               the Town, and expended over $500,000 preparing and
indicates that the Mayhews were only interested in the Town         developing the application. The Mayhews presented the
approving their development *931 request for 3,600 units.           project to the Town planning staff, the Town planning and
As Charles Mayhew, Jr. testified, anything less than 3,600          zoning committee, and the Town council. After receiving a
units, the Mayhews believed, was an outright denial of              negative response from the planning and zoning committee,
their application. The Mayhews' very theory at trial was            the Mayhews met with Town council members, and, in an
that the only economically viable use of their property was         effort to compromise, agreed to alter their application. The
to develop it in accordance with the development proposal



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

Mayhews then submitted a modified application to the Town          complaint had been that the only way to avert a regulatory
council, which the council rejected.                               taking was for the county to approve the subdivision proposal.

The modified application that the Mayhews presented to             Of course, that is exactly the Mayhews' complaint. The
the Town council requested 3,600 units, a reduction from           Mayhews allege that anything less than approval for 3,600
their original request for approval. Such a compromise             units on their property constitutes a regulatory taking. The
proposal can sometimes be sufficient to satisfy the                ripeness doctrine does not require a property owner, such
variance requirement. Executive 100, Inc., 922 F.2d at             as the Mayhews, to seek permits for development that the
1540 (aggrieved landowner must “have sought variances              property owner does not deem economically viable. See
or pursued alternative, less ambitious development plans”);        Beure–Co. v. United States, 16 Cl.Ct. 42, 51 n. 11 (1988).
Landmark Land Co., 874 F.2d at 721 (claim not ripe until           We accordingly conclude that, under the circumstances
initial permit application denied and some effort made             of this case, the Mayhews were not required to submit
to “compromise” with the city to allow some level of               additional alternative proposals, after a year of negotiations
development).                                                      and $500,000 in expenditures, to ripen this complaint.

Moreover, this modified application was not the most               Any other holding would require the Mayhews to expend
profitable use envisioned by the Mayhews, but rather the           their own time and resources pursuing, and the Town's time
minimum number of units the Mayhews believed necessary             and resources considering, a development proposal that the
to make an economically viable use of their land. In fact, the     Mayhews would never actually develop. Requiring such a
very theory espoused by the Mayhews at trial was that only         wasteful expenditure of resources would violate the Supreme
improvements along the lines of their 3,600 unit proposed          Court's admonition that a property owner is “not required to
planned development would avert a regulatory taking. In            resort to piecemeal litigation or otherwise unfair procedures
other words, the Mayhews alleged that anything less than the       in order to obtain [a final] determination.” MacDonald, 477
Town allowing their planned development would deny the             U.S. at 352 n. 7, 106 S.Ct. at 2567–68 n. 7. The Town
only economically viable use of their property.                    clearly was not going to approve the Mayhews' development
                                                                   proposal for 3,600 units, making a subsequent application or
The United States Supreme Court has indicated that such            variance request for 3,600 units a futile act. We therefore
a claim may be ripe without the necessity of seeking a             hold that the Mayhews' claims that the Town violated their
variance or filing a subsequent application. In MacDonald,         constitutional rights by denying their planned development
after the county rejected the applicant's single *932 proposal     proposal for 3,600 units are ripe for this Court's review.
to subdivide the property into 159 single-family and multi-
family residential lots, the applicant immediately sued,
alleging that the county had restricted the property to an open-
                                                                                                III
space agricultural use, thereby appropriating the property.
MacDonald, 477 U.S. at 342–44, 106 S.Ct. at 2562–64.               The Mayhews brought five separate claims against the Town
Because the county's only action was its rejection of a            under the federal and state constitutions, alleging “fails to
single subdivision proposal, the Supreme Court held that the       substantially advance” takings claims, “just compensation”
applicant's claim that the county had deprived it of all use       takings claims, substantive due process and due course
of its property was not ripe. In such a situation, the Court       claims, equal protection claims, and procedural due process
reasoned that the applicant had not received the county's “        and due course claims. The Mayhews urged in their
‘final, definitive position regarding how it will apply the        application for writ of error that Texas takings jurisprudence
regulations at issue to the particular land in question.’ ” Id.    follows the federal standards. Accordingly, for purposes
at 351, 106 S.Ct. at 2567 (quoting Hamilton Bank, 473 U.S.         of this case, we assume, without deciding, that the state
at 191, 105 S.Ct. at 3118–19). But the Court noted that the        and federal guarantees in respect to land-use constitutional
applicant did not “contend that only improvements along            claims are coextensive, and we will analyze the Mayhews'
the lines of its 159–home subdivision plan would avert a           claims under the more familiar federal standards. Cf. Tilton
regulatory taking.” Id. at 352 n. 8, 106 S.Ct. at 2567–68 n.       v. Marshall, 925 S.W.2d 672, 677 n. 6 (Tex.1996)(assuming
8 (emphasis added). The Supreme Court accordingly implied          without deciding that the state and federal free exercise
that the result may have been different if the applicant's         guarantees were coextensive with respect to relator's claims



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

because relator did not demonstrate that the provisions should      their property. Rather, the Mayhews allege that the denial of
be applied differently).                                            their planned development constitutes a regulatory taking.

 [4] Before proceeding to analyze the Mayhews' five                  [5]    [6] Zoning decisions are vested in the discretion of
constitutional claims, we must consider the proper effect           municipal authorities; courts should not assume the role of a
of the findings of fact made by the district court in this          super zoning board. Goss v. City of Little Rock, 90 F.3d 306,
case. Although determining whether a property regulation            308 (8th Cir.1996); Burns v. City of Des Peres, 534 F.2d 103,
is unconstitutional requires the consideration of a number          108 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50
of factual issues, the ultimate question of whether a zoning        L.Ed.2d 139 (1976). However, despite the discretion afforded
ordinance constitutes a compensable taking or violates due          to municipal authorities, zoning decisions must comply with
process or equal protection is a question of law, not a question    constitutional limitations. As a general rule, the application
of fact. City of College Station v. Turtle Rock Corp., 680          of a general zoning law to a particular property constitutes
S.W.2d 802, 804 (Tex.1984); see also *933 Hunt v. City of           a regulatory taking if the ordinance “does not substantially
San Antonio, 462 S.W.2d 536, 539 (Tex.1971); DuPuy v. City          advance legitimate state interests” or it denies an owner
of Waco, 396 S.W.2d 103, 110 (Tex.1965). In resolving this          all “economically viable use of his land.” Agins v. City of
legal issue, we consider all of the surrounding circumstances.      Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d
City of College Station, 680 S.W.2d at 804; see also Hunt, 462      106 (1980). See also Dolan v. City of Tigard, 512 U.S. 374,
S.W.2d at 539; City of Bellaire v. Lamkin, 159 Tex. 141, 317        385, 114 S.Ct. 2309, 2316–17, 129 L.Ed.2d 304 (1994);
S.W.2d 43, 45 (1958); City of Waxahachie v. Watkins, 154            Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
Tex. 206, 275 S.W.2d 477, 481 (1955). While we depend on            1016, 112 S.Ct. 2886, 2893–94, 120 L.Ed.2d 798 (1992);
the district court to resolve disputed facts regarding the extent   Nollan v. California Coastal Comm'n, 483 U.S. 825, 834,
of the governmental intrusion on the property, cf. Republican       107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987); Keystone
Party of Texas v. Dietz, 940 S.W.2d 86, 91 (Tex.1997), the          Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 485,
ultimate determination of whether the facts are sufficient to       107 S.Ct. 1232, 1241–42, 94 L.Ed.2d 472 (1987).
constitute a taking is a question of law. 3
                                                                    The Mayhews allege, and the district court found, that
                                                                    the denial of the Mayhews' planned development did
                                                                    not substantially advance legitimate state interests and
          A. REGULATORY TAKING CLAIM                                amounted to a taking because all economically viable
                                                                    use of their property was denied. We first analyze
The Just Compensation Clause of the Fifth Amendment
                                                                    whether the Town's actions substantially advance legitimate
provides that “private property [shall not] be taken for public
                                                                    governmental interests before determining whether the
use, without just compensation.” This prohibition has been
                                                                    Town's actions denied the Mayhews all economically viable
incorporated through the Fourteenth Amendment to apply
                                                                    use of their property.
to the individual states. Williamson Planning Comm'n v.
Hamilton Bank, 473 U.S. 172, 175 n. 1, 105 S.Ct. 3108,
3110–11 n. 1, 87 L.Ed.2d 126 (1985); Chicago, B. & Q.R.
Co. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 586, 41                   1. Substantially Advance Legitimate Interests
L.Ed. 979 (1897). Similarly, article I, section 17 of the Texas
Constitution provides, in pertinent part, that no “person's          [7] A property regulation must “substantially advance”
property shall be taken, damaged or destroyed for or applied        a legitimate governmental interest to pass constitutional
to public use without adequate compensation being made....”         muster. See, e.g., *934 Dolan, 512 U.S. at 385, 114 S.Ct.
                                                                    at 2316–17; Nollan, 483 U.S. at 834, 107 S.Ct. at 3147. See
Takings can be classified as either physical or regulatory          also City of College Station, 680 S.W.2d at 805 (property
takings. Physical takings occur when the government                 regulation must be “substantially related” to a legitimate
authorizes an unwarranted physical occupation of an                 goal); Hunt, 462 S.W.2d at 539 (same); Watkins, 275 S.W.2d
individual's property. See Yee v. City of Escondido, 503 U.S.       at 481 (same); Lombardo, 73 S.W.2d at 485 (same). While
519, 522, 112 S.Ct. 1522, 1526, 118 L.Ed.2d 153 (1992). The         it is clear that a zoning ordinance that does not substantially
Mayhews do not claim that the Town has physically taken             advance a legitimate state interest constitutes a taking, the
                                                                    standards for determining what constitutes a legitimate state



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

interest or what relation between a regulation and the state      property with provision for open-space areas.” Agins, 447
interest satisfies the “substantially advance” requirement in a   U.S. at 262, 100 S.Ct. at 2142.
regulatory takings case has not been clarified by the United
States Supreme Court. See, e.g., Nollan, 483 U.S. at 834, 107     The “substantial advancement” requirement examines the
S.Ct. at 3147.                                                    nexus between the effect of the ordinance and the legitimate
                                                                  state interest it is supposed to advance. See Yee v. City of
The Supreme Court has, however, indicated that “a broad           Escondido, 503 U.S. 519, 530, 112 S.Ct. 1522, 1529–30, 118
range of governmental purposes and regulations” will              L.Ed.2d 153 (1992); see also generally Nollan, 483 U.S. at
satisfy these requirements. Id. at 834–35, 107 S.Ct. at           837, 107 S.Ct. at 3148–49; Esposito, 939 F.2d at 169. This
3147–48. Specifically, the Supreme Court has noted that           requirement is not, however, equivalent to the “rational basis”
the following state interests are legitimate state interests:     standard applied to due process and equal protection claims.
protecting residents from the “ill effects of urbanization”;      Nollan, 483 U.S. at 834 n. 3, 107 S.Ct. at 3147 n. 3. The
Agins, 447 U.S. at 261, 100 S.Ct. at 2141–42; enhancing the       standard requires that the ordinance “substantially advance”
quality of life; Penn Central Transp. Co. v. New York City,       the legitimate state interest sought to be achieved rather than
438 U.S. 104, 129, 98 S.Ct. 2646, 2661–62, 57 L.Ed.2d 631         merely analyzing whether the government could rationally
(1978); and protecting a beach system for recreation, tourism,    have decided that the measure achieved a legitimate objective.
and public health; Keystone, 480 U.S. at 488, 107 S.Ct. at        Id.
1243–44; Esposito v. South Carolina Coastal Council, 939
F.2d 165, 169 (4th Cir.1991), cert. denied, 505 U.S. 1219, 112     [8]     The Town's denial of the Mayhews' planned
S.Ct. 3027, 120 L.Ed.2d 898 (1992).                               development application passes constitutional muster under
                                                                  this standard. In making this determination, we do not review
In Agins, the City of Tiburon adopted a zoning ordinance          the wisdom of the Town's decision. See Smithfield Concerned
governing development of open space land that limited the         Citizens, 907 F.2d at 245. Rather, we are concerned only with
plaintiffs to building between one and five single-family         whether the decision satisfies constitutional standards.
residences on the five acres of land which they had previously
purchased for residential development. 447 U.S. at 257,            *935 The Mayhews allege that the real reason behind the
100 S.Ct. at 2139–40. The Court held that protecting the          denial of their development application was to have their
residents of Tiburon from the ill effects of urbanization by      property serve as “borrowed” open space for the residents of
precluding the conversion of open-space land to urban uses        the Town who primarily live on less than one-acre lots. In
was a legitimate government purpose. Id. at 261, 100 S.Ct.        support of this contention, the Mayhews presented evidence
at 2141–42. Cf. Penn Central Transp. Co., 438 U.S. at             negating some of the reasons given by the planning and
129, 98 S.Ct. at 2661–62 (preservation of desirable aesthetic     zoning commission for the denial of their development
features); Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94    application. For instance, the Mayhews presented evidence
S.Ct. 1536, 1541, 39 L.Ed.2d 797 (1974); Berman v. Parker,        establishing, and the district court found, that sanitary sewer
348 U.S. 26, 32–33, 75 S.Ct. 98, 102–03, 99 L.Ed. 27 (1954);      facilities would not be a problem for the Mayhews' planned
Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394–        development because the local sewage plant was operating
95, 47 S.Ct. 114, 120–21, 71 L.Ed. 303 (1926); see also           in full compliance with EPA guidelines and had enough
Christensen v. Yolo County Bd. of Supervisors, 995 F.2d 161,      capacity to serve the additional residences contemplated in
165 (9th Cir.1993)(preservation of agricultural uses of land      the Mayhews' planned development.
a legitimate state interest); Smithfield Concerned Citizens
for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 244–         But the Town's planning and zoning commission came forth
45 (1st Cir.1990)(controlling both the rate and character of      with a number of separate reasons for the denial of the
community growth a legitimate government purpose); Pompa          Mayhews' application, several of which substantially advance
Construction Corp. v. City of Saratoga Springs, 706 F.2d 418,     legitimate state interests. The Town denied the development
422 (2d Cir.1983)(discouraging conversion of open-space           application in part because of the impact the development
land to urban uses a legitimate state interest). Such zoning      would have on the overall character of the community and
ordinances benefit “the public by serving the city's interest     the unique character and lifestyle of the Town which is
in assuring careful and orderly development of residential        different from that of adjoining municipalities where there
                                                                  is a proliferation of multi-family and single-family homes



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

on small lots. Under the Supreme Court's decision in Agins,       analysis of whether value remains in the property after the
concern for such urbanization effects is clearly a legitimate     governmental action.
state interest.
                                                                   [12]     [13]    [14] In contrast, determining whether the
We also conclude that the denial of the Mayhews'                  government has unreasonably interfered with a landowner's
development application substantially advances the Town's         right to use and enjoy property requires a consideration
legitimate concern for protecting the community from the ill      of two factors: the economic impact of the regulation and
effects of urbanization. The Mayhews requested a planned          the extent to which the regulation interferes with distinct
development with 3,600 units in a Town with a population          investment-backed expectations. See Lucas, 505 U.S. at
of only approximately 2,000 residents. Photographs in the         1019 n. 8, 112 S.Ct. at 2895 n. 8; Penn Central, 438 U.S.
record show that the Town is uniquely rural and suburban,         at 124, 98 S.Ct. at 2659. The first factor, the economic
with undivided two lane roads, clusters of trees, lakes and       impact of the regulation, *936 merely compares the value
ponds, and houses on large lots. This community would             that has been taken from the property with the value that
change drastically if a large planned development with at         remains in the property. Keystone, 480 U.S. at 497, 107 S.Ct.
least three residences per acre was built. The Mayhews'           at 1248. The loss of anticipated gains or potential future
planned development would result in an estimated population       profits is not usually considered in analyzing this factor.
increase of between 10,000 and 15,000 persons, more than          Andrus v. Allard, 444 U.S. 51, 66, 100 S.Ct. 318, 327,
quadrupling the population of the Town. Simply put, the           62 L.Ed.2d 210 (1979); see also Moore v. City of Costa
Town has a substantial interest in preserving the rate and        Mesa, 886 F.2d 260, 263 (9th Cir.1989), cert. denied, 496
character of community growth, and its action in denying the      U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990). The
Mayhews' planned development furthers those interests.            second factor is the investment-backed expectation of the
                                                                  landowner. The existing and permitted uses of the property
                                                                  constitute the “primary expectation” of the landowner that
                                                                  is affected by regulation. Penn Central, 438 U.S. at 136,
           2. Just Compensation Takings Claim
                                                                  98 S.Ct. at 2665; see also Lucas, 505 U.S. at 1017 n. 7,
 [9] Our conclusion that the Town's action substantially          112 S.Ct. at 2894 n. 7 (owner's reasonable expectations
advances a legitimate state interest does not end the takings     shaped by uses permitted by state law); Esposito v. South
inquiry, however. A compensable regulatory taking can also        Carolina Coastal Council, 939 F.2d 165, 170 (4th Cir.1991),
occur when governmental agencies impose restrictions that         cert. denied, 505 U.S. 1219, 112 S.Ct. 3027, 120 L.Ed.2d
either (1) deny landowners of all economically viable use of      898 (1992)(“the courts have traditionally looked to the
their property, or (2) unreasonably interfere with landowners'    existing use of property as a basis for determining the
rights to use and enjoy their property. Lucas v. South Carolina   extent of interference with the owner's ‘primary expectation
Coastal Council, 505 U.S. 1003, 1015–19 & n. 8, 112 S.Ct.         concerning the use of the parcel.’ ”) (quoting Penn Central,
2886, 2893–95 & n. 8, 120 L.Ed.2d 798 (1992); see also            438 U.S. at 136, 98 S.Ct. at 2665). Knowledge of existing
Taub v. City of Deer Park, 882 S.W.2d 824, 826 (Tex.1994),        zoning is to be considered in determining whether the
cert. denied, 513 U.S. 1112, 115 S.Ct. 904, 130 L.Ed.2d           regulation interferes with investment-backed expectations.
787 (1995); City of Austin v. Teague, 570 S.W.2d 389, 393         See Pompa Construction Corp. v. City of Saratoga Springs,
(Tex.1978).                                                       706 F.2d 418, 424–25 (2d Cir.1983).


 [10]     [11]     A restriction denies the landowner all         The Town urges that its rejection of the Mayhews' application
economically viable use of the property or totally destroys the   did not unconstitutionally deprive them of their property.
value of the property if the restriction renders the property     The Town first contends that the district court found that the
valueless. See, e.g., Dolan v. City of Tigard, 512 U.S. 374,      Mayhews' property retained a value of at least $2.4 million
385, 114 S.Ct. 2309, 2316–17, 129 L.Ed.2d 304 (1994);             following the denial of the planned development application;
Lucas, 505 U.S. at 1015–16, 1020, 112 S.Ct. at 2893–94;           thus, according to the Town, the property's value was not
Taub, 882 S.W.2d at 826; City of College Station v. Turtle        totally destroyed. The Town next urges that the denial of
Rock Corp., 680 S.W.2d 802, 806 (Tex.1984); Teague, 570           the development request did not unreasonably interfere with
S.W.2d at 393. Determining whether all economically viable        the Mayhews' property rights because the Mayhews had no
use of a property has been denied entails a relatively simple     right to have their property “up-zoned” for a greater density



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

of development. In other words, the Town asserts that the         the extent of the governmental intrusion and the diminution
Mayhews had no reasonable investment-backed expectation           in the property's value in determining whether the Town has
to lose. The Town also maintains that the Mayhews were            taken the Mayhews' property without just compensation.
not singled out unfairly through the denial of the planned
development proposal. Instead, the Town claims that the            [15] The relevant factual findings demonstrate that the
zoning applied evenly to all property owners in the Town and      Town has not totally destroyed all value of the property
the Town denied applications other than just the Mayhews'         by denying the Mayhews' planned development proposal. In
proposal. 4                                                       Lucas, the Supreme Court clarified that a taking occurs “when
                                                                  the owner of real property has been called upon to sacrifice
The Mayhews counter, however, that this is not the typical        all economically beneficial uses in the name of the common
denial of an up-zoning application. The Mayhews point out         good, that is, to leave his property economically idle.” Lucas,
that the district court found that the only economically viable   505 U.S. at 1019, 112 S.Ct. at 2895 (emphasis in original).
use of this property was to construct 3,600 residential units.    Because the trial court found that Lucas's property was
The district court also found that agriculture was not an         rendered completely and wholly valueless by the regulations
economically viable use of the property. Finally, the district    at issue, the Supreme Court concluded that a taking had
court found that, with one-acre zoning, it would take a           occurred. Id. at 1019–20, 112 S.Ct. at 2895–96. In contrast,
minimum of 150 years before the Mayhews could completely          the district court in this case determined that, even after the
develop their property. Accordingly, the district court found     denial of the Mayhews' planned development proposal, the
that no reasonable investor would purchase the Mayhews'           property retained a value of $2.4 million. In such a situation,
property.                                                         the governmental regulation has not entirely destroyed the
                                                                  property's value.
We first must consider the effect of these fact-findings
relied on by the Mayhews. As discussed previously, the             [16] Even if the governmental regulation has not entirely
ultimate determination of whether the facts are sufficient        destroyed the property's value, a taking can occur if the
to constitute a taking is a question of law, but we               regulation has a severe enough economic impact and
depend on the district court to resolve disputed facts            the regulation interferes with distinct investment-backed
regarding the extent of the governmental intrusion on the         expectations. See Lucas, 505 U.S. at 1019 n. 8, 112 S.Ct.
property. Under substantive law, a regulatory taking occurs       at 2895 n. 8 (takings are to be measured by the “economic
when governmental regulations deprive the owner of all            impact of the regulation on the claimant and ... the extent to
economically viable use of the property or totally destroy the    which the regulation has interfered with distinct investment-
property's value. Dolan, 512 U.S. at 385, 114 S.Ct. at 2316–      backed expectations”); Penn Central, 438 U.S. at 124,
17; Lucas, 505 U.S. at 1015–16, 112 S.Ct. at 2893; Taub,          98 S.Ct. at 2659 (same); see also Taub, 882 S.W.2d at
882 S.W.2d at 826. Some courts have made an alternative           826 (sufficiently severe economic impact can constitute a
pronouncement that a taking occurs when the government            taking). The reasonable investment-backed expectation of the
does not allow any use of the property that is sufficiently       claimant is critical to this analysis because it distinguishes
desirable to permit *937 the property owner to sell the           this concept from those situations in which the landowner's
property. See, e.g., Del Monte Dunes at Monterey, Ltd. v.         property has been totally destroyed. Because we conclude
City of Monterey, 95 F.3d 1422, 1433 (9th Cir.1996), petition     that the Mayhews had no reasonable investment-backed
for cert. filed, 66 U.S.L.W. 3509 (U.S. Jan. 26, 1998) (No.       expectation to build 3,600 units on their property, we hold
97–1235); Park Ave. Tower Assoc. v. City of New York, 746         that the Town has not unreasonably interfered with their right
F.2d 135, 139 (2d Cir.1984), cert. denied, 470 U.S. 1087,         to use and enjoy their property by denying their planned
105 S.Ct. 1854, 85 L.Ed.2d 151 (1985). The district court's       development proposal.
findings that there was no economically viable use of the
property and that no reasonable investor would purchase            [17] When the Mayhews first began purchasing their
the property purport to decide the ultimate legal issue of        property, the Town did not have a zoning ordinance in
whether a taking has occurred. This, however, involves a          place. It is undisputed that the Mayhews originally purchased
question of law, and we therefore owe no deference to the trial   their property for ranching, not for development. They then
court's “findings” in this regard. We will instead focus on the   used their property for ranching for nearly four decades.
district court's underlying factual determinations regarding      Historical uses of the property are critically important when



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Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

determining the reasonable investment-backed expectation of
the landowner. See Esposito, 939 F.2d at 170 (“the courts          [20]      [21] A generally applicable zoning ordinance will
have traditionally looked to the existing use of property         survive a substantive due process challenge if it is designed
as a basis for determining the extent of interference with        to accomplish an objective within the government's police
the owner's ‘primary expectation concerning the use of the        power and if a rational relationship exists between the
parcel.’ ”)(quoting Penn Central, 438 U.S. at 136, 98 S.Ct. at    ordinance and its purpose. FM Properties Operating Co. v.
2665). After four decades of ranching their property in a Town    City of Austin, 93 F.3d 167, 174 (5th Cir.1996); Christensen
with a population of no more than 2,000 people, the Mayhews       v. Yolo County Bd. of Supervisors, 995 F.2d 161, 165 (9th
did not have a reasonable investment-backed expectation that      Cir.1993); Southern Pac. Transp. Co. v. City of Los Angeles,
they could pursue an intensive development of 3,600 units         922 F.2d 498, 507 (9th Cir.1990), cert. denied, 502 U.S. 943,
that would more than quadruple the Town's population.             112 S.Ct. 382, 116 L.Ed.2d 333 (1991); Smithfield Concerned
                                                                  Citizens, 907 F.2d at 243–44; Stansberry v. Holmes, 613 F.2d
 [18] The Mayhews' subsequent purchases of property in            1285, 1289 (5th Cir.), cert. denied, 449 U.S. 886, 101 S.Ct.
1985 and 1986 were for purposes of development. However,          240, 66 L.Ed.2d 112 (1980). This deferential inquiry does not
at this time, the Town's zoning ordinances had restricted         focus on the ultimate effectiveness of the ordinance, but on
development to one unit per acre for the preceding twelve         whether the enacting body could have rationally believed at
years. The existing zoning of the property at the time it         the time of enactment that the ordinance would promote its
was *938 acquired is to be considered in determining              objective. Williamson v. Lee Optical of Oklahoma, Inc., 348
whether the regulation interferes with investment-backed          U.S. 483, 487–88, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955). If
expectations. See Pompa Construction Corp., 706 F.2d at           it is at least fairly debatable that the decision was rationally
424–25. We do not believe that the Mayhews had a reasonable       related to legitimate government interests, the decision must
investment-backed expectation to build 3,600 units on their       be upheld. See Minnesota v. Clover Leaf Creamery Co.,
1,200 acres when the Town's zoning ordinances had for             449 U.S. 456, 464, 101 S.Ct. 715, 723–24, 66 L.Ed.2d 659
twelve years limited development to one unit per acre.            (1981); FM Properties, 93 F.3d at 175. The ordinance will
                                                                  violate substantive due process only if it is clearly arbitrary
Accordingly, we render judgment against the Mayhews on            and unreasonable. See Esposito v. South Carolina Coastal
their regulatory takings claims. The Town's denial of the         Council, 939 F.2d 165, 170 (4th Cir.1991), cert. denied, 505
planned development substantially advanced legitimate state       U.S. 1219, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992).
interests and did not totally destroy the value of the Mayhews'
property or unreasonably interfere with their rights to use and   In Greenbriar, 881 F.2d at 1577–80, the Eleventh Circuit
enjoy their property.                                             was faced with a substantive due process challenge similar
                                                                  to the challenge made by the Mayhews in this case. The
                                                                  fact finder determined in that case, based on conflicting
                                                                  evidence on whether the proposal was in the best interest
           B. SUBSTANTIVE DUE PROCESS
                                                                  of the community, that the city council had acted arbitrarily
 [19] A court should not set aside a zoning determination         and capriciously in refusing to rezone the subject property
for a substantive due process violation unless the action “has    based on “political pressure” from constituents. The Eleventh
no foundation in reason and is a mere arbitrary or irrational     Circuit held, however, that this evidence was not sufficient
exercise of power having no substantial relation to the public    to establish that the city acted irrationally or arbitrarily
health, the public morals, the public safety or the public        in rejecting the application. Id. at 1580; see also Sylvia
welfare in its proper sense.” Nectow v. City of Cambridge, 277    Dev. Corp. v. Calvert County, 48 F.3d 810, 827–29 (4th
U.S. 183, 187–88, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928);         Cir.1995)(a landowner who speculatively purchases property
see also Pennell v. City of San Jose, 485 U.S. 1, 11, 108 S.Ct.   based on the possibility of an upzoning does not demonstrate
849, 857, 99 L.Ed.2d 1 (1988); Village of Euclid v. Ambler        a substantive due process violation when the county refuses
Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed.        to grant upzoning).
303 (1926); Smithfield Concerned Citizens for Fair Zoning
v. Town of Smithfield, 907 F.2d 239, 243–44 (1st Cir.1990);        [22] We likewise conclude that the Town did not act
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577        irrationally or arbitrarily in denying the Mayhews' planned
(11th Cir.1989).                                                  development application. The Town's concerns regarding



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         16
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

the urbanization effects of the development are legitimate          [27] Finally, the Mayhews claim that the Town's zoning
governmental interests, and *939 the denial of the                 ordinance was not rationally related to a legitimate
development application is clearly rationally related to those     government purpose. In analyzing this claim, we apply the
interests.                                                         same standards as to their substantive due process analysis.
                                                                   For the same reasons that we concluded that the Town's
                                                                   actions did not violate substantive due process, we conclude
                                                                   that the Town has not violated the Mayhews' equal protection
                C. EQUAL PROTECTION
                                                                   rights.
 [23]     [24]     [25] An as-applied equal protection claim
requires that the government treat the claimant different from
other similarly-situated landowners without any reasonable                    D. PROCEDURAL DUE PROCESS
basis. Executive 100, Inc. v. Martin County, 922 F.2d 1536,
1541 (11th Cir.), cert. denied, 502 U.S. 810, 112 S.Ct.             [28] [29] If an individual is deprived of a property right,
55, 116 L.Ed.2d 32 (1991). The ordinance generally must            the government must afford an appropriate and meaningful
only be rationally related to a legitimate state interest to       opportunity to be heard to comport with procedural due
survive an equal protection challenge, unless the ordinance        process. Cleveland Bd. of Education v. Loudermill, 470 U.S.
discriminates against a suspect class. Christensen v. Yolo         532, 542, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985);
County Bd. of Supervisors, 995 F.2d 161, 165 (9th Cir.1993);       Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102
Southern Pac. Transp. Co. v. City of Los Angeles, 922 F.2d         S.Ct. 1148, 1153–54, 71 L.Ed.2d 265 (1982). Accordingly, a
498, 507 (9th Cir.1990), cert. denied, 502 U.S. 943, 112           plaintiff alleging a procedural due process takings claim must
S.Ct. 382, 116 L.Ed.2d 333 (1991). Economic regulations,           establish that he was deprived of notice and an opportunity
including zoning decisions, have traditionally been afforded       to be heard with respect to a decision affecting his property
only rational relation scrutiny under the equal protection         rights. Cf. Anderson v. Douglas County, 4 F.3d 574, 578 (8th
clause. See City of Cleburne v. Cleburne Living Ctr., Inc.,        Cir.1993), cert. denied, 510 U.S. 1113, 114 S.Ct. 1059, 127
473 U.S. 432, 440, 105 S.Ct. 3249, 3254–55, 87 L.Ed.2d 313         L.Ed.2d 379 (1994); Herrington v. County of Sonoma, 834
(1985); Clajon Production Corp. v. Petera, 70 F.3d 1566,           F.2d 1488, 1501 (9th Cir.), modified on other grounds, 857
1580 (10th Cir.1995); see also City of New Orleans v. Dukes,       F.2d 567 (9th Cir.1988), cert. denied, 489 U.S. 1090, 109
427 U.S. 297, 303–04, 96 S.Ct. 2513, 2516–17, 49 L.Ed.2d           S.Ct. 1557, 103 L.Ed.2d 860 (1989).
511 (1976); Barshop v. Medina Cty. Underground Water
Conservation Dist., 925 S.W.2d 618, 631–32 (Tex.1996).              [30]     [31] The Mayhews were given notice and an
                                                                   opportunity to be heard with respect to their development
 [26] The Mayhews claim that they are not being treated            application. While the Mayhews complain that the procedure
the same as other property owners in the Town that have            was unfair because the Town applied ad hoc unreviewable
higher density properties. However, they are not similarly         standards in making its determination and that the Town
situated. A landowner seeking a zoning change for a 1200 acre      lacked the discretion to deny the application because it
development is not similarly situated to a landowner seeking       satisfied the applicable standards, this is not the proper
to build on a small parcel of land. There is no showing that the   inquiry. Zoning is a legislative act. See, e.g., Thompson v. City
Mayhews have been treated differently from other property          of Palestine, 510 S.W.2d 579, 581 (Tex.1974). In making a
owners seeking a planned development on their property.            legislative zoning determination, a city or town is entitled to
                                                                   consider all the facts and *940 circumstances which may
The Mayhews also allege that the zoning ordinance has a            affect the property, the community, and the welfare of its
disproportionate impact on racial minorities, thus invoking        citizens. Cf. City of El Paso v. Donohue, 163 Tex. 160,
a suspect class. At trial, however, the Mayhews stipulated         352 S.W.2d 713, 716 (1962). To satisfy the requirements of
that they abandoned any “allegation of racial animus as a          procedural due process, then, the Town must only provide
motivation for the actions either in regard to the planned         notice and an opportunity to be heard, which it did. We
development or in regard to the existing zoning which applies      conclude that the Mayhews are not entitled to prevail on their
to the subject property.” That stipulation applies in this Court   procedural due process claims.
as well.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          17
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (1998)
41 Tex. Sup. Ct. J. 517

                                                                          claims, “substantially advances” takings claims, substantive
                             ****
                                                                          due process and due course claims, equal protection claims,
We reverse the court of appeals' judgment dismissing the                  and procedural due process and due course claims under the
Mayhews' claims on ripeness grounds. Rather than dismissing               federal and state constitutions.
their claims, we render a take-nothing judgment against the
Mayhews because we hold that, as a matter of law, the
Mayhews did not prevail on their just compensation takings                Parallel Citations

                                                                          41 Tex. Sup. Ct. J. 517


Footnotes
1      It is possible that we are compelled to reach this result, at least with respect to the Mayhews' federal claims. While state procedural law
       generally determines the manner in which a federal question is to be presented in state court, that is not the case if federal substantive
       law defines its own procedural matrix. See TRIBE, AMERICAN CONSTITUTIONAL LAW 3–24, at 166 (2d ed.1988). Because the
       United States Supreme Court has stated that the “final decision” prudential ripeness requirement “follows from the principle that only
       a regulation that ‘goes too far’ results in a taking under the Fifth Amendment,” Suitum v. Tahoe Regional Planning Agency, 520 U.S.
       725, ––––, 117 S.Ct. 1659, 1665, 137 L.Ed.2d 980 (1997) (citations omitted), a persuasive argument could be made that the “final
       decision” aspect of ripeness is not independent of federal substantive law. See also MacDonald, Sommer & Frates v. Yolo County,
       477 U.S. 340, 348, 106 S.Ct. 2561, 2565–66, 91 L.Ed.2d 285 (1986)(final decision is an “essential prerequisite” of a regulatory
       takings claim). In any event, we need not determine whether we are compelled by federal supremacy to rely on federal law because,
       in determining the ripeness of the Mayhews' regulatory takings claims in this case, we apply federal jurisprudence.
2      Moreover, before a regulatory takings claim can be maintained in federal court, a plaintiff must seek compensation through the
       procedures the state has provided for doing so. Suitum, 520 U.S. at ––––, 117 S.Ct. at 1665; Hamilton Bank, 473 U.S. at 194–95,
       105 S.Ct. at 3120–21. This requirement does not apply in this case.
3      The United States Supreme Court apparently also views the ultimate determinations in takings cases as a legal issue. See United
       States v. Causby, 328 U.S. 256, 259, 66 S.Ct. 1062, 1064–65, 90 L.Ed. 1206 (1946)(accepting Court of Claims' factual conclusion
       that the existence of government airplanes in the airspace immediately above the property destroyed its value while reserving for
       itself the legal conclusion of whether a compensable taking occurred under the Fifth Amendment).
4      As Justice Scalia has observed, “Traditional land-use regulation (short of that which totally destroys the economic value of property)
       does not violate [the Takings Clause] because there is a cause-and-effect relationship between the property use restricted by the
       regulation and the social evil that the regulation seeks to remedy. Since the owner's use of the property is (or, but for the regulation
       would be) the source of the social problem, it cannot be said that he has been singled out unfairly.” Pennell v. City of San Jose, 485
       U.S. 1, 20, 108 S.Ct. 849, 861–62, 99 L.Ed.2d 1 (1988)(Scalia, J., dissenting).


End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          18
McAshan v. Cavitt, 149 Tex. 147 (1950)
229 S.W.2d 1016

                                                                              Limitation of Liability
                      149 Tex. 147                                       Bailment
                 Supreme Court of Texas.                                     Bailments for Mutual Benefit
                                                                         Sign of parking lot operators showing closing
                      McASHAN et al.                                     hour would be strictly construed and would
                           v.                                            not be interpreted as effecting an exemption
                       CAVITT et al.                                     from exercise of ordinary care with respect
                                                                         to safety of property after that hour if any
              No. A-2552.      |    May 17, 1950.                        other meaning might reasonably be ascribed to
                                                                         language employed.
Action by S. E. Cavitt and another for themselves and the
American Fire and Casualty Company, subrogee, against                    1 Cases that cite this headnote
Ernest McAshan and others to recover damages for the loss
of an automobile stolen from defendants' parking lot. A
judgment for the plaintiffs was affirmed by the El Paso Court      [3]   Bailment
of Civil Appeals for the Eighth Supreme Judicial District, 227               Bailments for Mutual Benefit
S.W.2d 340, Price, C. J., on appeal from the District Court              Generally, limitations of bailee's responsibility
for Bexar County, Quinn, J., and defendants brought error.               expressed on signs or printed on claim checks do
The Supreme Court, Smedley, J., held that since one of the               not become parts of contracts of bailment, and do
owners did not know of limitations expressed on a parking                not bind bailor unless called to his attention.
lot sign and claim check and was not informed that the lot
would close at a certain time, the contract of bailment did not          4 Cases that cite this headnote
include those limitations, and the obligation of the parking lot
operators to use ordinary care for protection of the automobile    [4]   Automobiles
did not terminate at the closing hour.                                       Limitation of Liability
                                                                         Bailment
Judgments of the Court of Civil Appeals and the District
                                                                             Bailments for Mutual Benefit
Court affirmed.
                                                                         Where an owner of automobile delivered to
                                                                         parking lot operator did not know of time
                                                                         limitations expressed on sign and on claim check
 West Headnotes (7)                                                      and was not informed the lot would close at 6 p.
                                                                         m. and that operators would not be responsible
                                                                         for automobile if left after that time, contract of
 [1]     Automobiles
                                                                         bailment did not include those limitations, and
             In General; Nature of Relation
                                                                         obligation of operators to use ordinary care for
         Bailment                                                        protection of the automobile did not terminate at
             Bailments for Mutual Benefit                                closing time.
         Where an owner left automobile in parking lot
         for parking and safe keeping, and paid or agreed                3 Cases that cite this headnote
         to pay parking fee, and parking lot operators
         took possession of automobile and gave owner a            [5]   Trial
         claim check, relation of bailor and bailee for hire                  Finding of Fact or Conclusion of Law
         was created, and obligation was imposed upon
                                                                         Where trial court found as a fact that theft
         parking lot operators to exercise ordinary care to
                                                                         of an automobile was result of negligence on
         protect automobile from theft.
                                                                         part of bailees, in not adequately protecting it
         1 Cases that cite this headnote                                 from theft, and court found as a conclusion of
                                                                         law that bailees were negligent in failing to
                                                                         provide adequate protection against theft and that
 [2]     Automobiles


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
McAshan v. Cavitt, 149 Tex. 147 (1950)
229 S.W.2d 1016

         damage was proximately caused by failure to               was delivered by Mrs. Cavitt to respondents for parking in a
         exercise ordinary care, Supreme Court would               parking lot operated by them in the City of San Antonio and
         consider the conclusion as a finding of fact              was stolen from the lot after 6 o'clock P.M. The Court of Civil
         notwithstanding its designation.                          Appeals affirmed the trial court's judgment. 227 S.W.2d 340.

         10 Cases that cite this headnote                          These are the facts found by the trial court and shown
                                                                   by *149 undisputed testimony: The parking lot is in the
                                                                   business district of the City of San Antonio. In part it is a
 [6]     Trial
                                                                   small unfenced area abutting two streets. A small office is
              Finding of Fact or Conclusion of Law
                                                                   situated in that area. Patrons drive their automobiles into the
         A trial court's conclusion that evidence                  area and receive claim checks for them. The automobiles are
         establishes proximate cause as a matter of law            then driven by an employee of petitioners out of the small
         necessarily includes a finding of proximate cause         area and into a larger adjoining fenced lot. Mrs. Cavitt, who
         as a fact supported by the evidence.                      lived in another town, drove her automobile into the small
                                                                   area at about 10:30 o'clock A.M. and delivered it to those in
         5 Cases that cite this headnote
                                                                   charge of the parking lot for parking and safekeeping, leaving
                                                                   the ignition key in the automobile and either paying at that
 [7]     Appeal and Error                                          time the parking fee of twenty-five cents or agreeing to pay
            Particular Findings Implied                            it on delivery of the car to her. When she left the car she was
         In action by owners of automobile against                 given a claim check on which was printed: ‘We close at 6
         parking lot operators for damages sustained               P.M. Cars left later at owner's risk.’ She put the check into
         as result of theft, trial court's conclusion that         her purse without reading it. The trial court found that her
         operators were negligent in failing to provide            failure to read the check was a failure to exercise ordinary
         adequate protection against theft and that                care. On the office of the parking lot is a sign which Mrs.
         damage was proximately caused by such failure,            Cavitt saw: ‘Not responsible for merchandise left over 48
         together with a finding of fact that theft was            hours', and another sign which she did not see: ‘A service
         result of negligence and fact that, in absence of         charge of 50¢ will be collected from all persons locking their
         express findings of fact, an inference of a finding       ignition or taking their keys with them.’ Across the entrance
         of proximate cause would be indulged, supported           to the small area and about fifteen feet above the ground is
         judgment for owners insofar as causal relation            a sign in letters approximately ten inches high: ‘Open at 8
         between negligence and theft was concerned.               A.M. Close at 6 P.M.’ Mrs. Cavitt did not see that sign and
                                                                   it was not called to her attention. She did not know that the
         Cases that cite this headnote                             parking lot closed at 6 P.M. and no one told her that it did
                                                                   and she was not told that for an additional charge she could
                                                                   take the keys of her automobile with her. When she returned
                                                                   to the parking lot at 7 o'clock P.M. her automobile was not
Attorneys and Law Firms                                            there and no watchman or other employee of petitioners was
                                                                   present. A witness who was in charge of the lot for petitioners
*148 **1017 Randle Taylor, San Antonio, Warren &                   testified that respondents' car was moved at 6 P.M. by one
Groce (Walter Groce), Corpus Christi, for petitioners.             of petitioners' employees from the large enclosed lot to the
                                                                   small unfenced area or front lot, and was left near the office, in
William E. Remy, San Antonio, for respondents.
                                                                   which there was a light, and near the sidewalk. The keys were
Opinion                                                            left in the automobile. All of petitioners' employees left the
                                                                   parking lot at 6:30 P.M. Petitioners had no provision, rules or
SMEDLEY, Justice.                                                  regulations for locking or otherwise protecting automobiles
                                                                   that might be left on the parking lot after 6 o'clock P.M., and
Following trial without a jury, judgment was rendered by the
                                                                   no system whereby the keys of cars so left were taken to a
district court in favor of respondents S. E. Cavitt and wife and
                                                                   central location so that owners of cars could call for them.
their insurer against petitioners for $1750.00, being the value
of an automobile belonging to Mr. and Mrs. Cavitt, which



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
McAshan v. Cavitt, 149 Tex. 147 (1950)
229 S.W.2d 1016

                                                                    and the statement printed on the claim check as being a part
The trial court found that petitioners failed to exercise           or parts of the contract between them and Mrs. Cavitt.
reasonable and ordinary care, or any degree of care, for the         *151 [2] It may well be doubted that the sign of itself,
protection of respondents' car after 6:30 P.M., and that the car    even if it had been seen by Mrs. Cavitt, would have relieved
was stolen or taken from the parking lot by someone other           petitioners of the obligation to exercise ordinary care for
than *150 the petitioners or the respondents, and that ‘such        the protection of Mrs. Cavitt's automobile after 6 o'clock
theft was the result of negligence on the part of petitioners in    P.M. It gave notice merely that we ‘Close at 6 P.M.’ It
not adequately protecting the same from theft.’                     did not clearly give notice that the automobile if left later
                                                                    would be at the owner's risk. It might be construed to
Petitioners' principal defense to the suit as presented by their
                                                                    mean that no automobiles would be accepted after 6 o'clock
application for writ of error is that they offered parking
                                                                    P.M. Such a sign will be strictly construed, and will not be
service to the public from 8 o'clock A.M. to 6 o'clock P.M.
                                                                    interpreted as effecting an exemption from the exercise of
and not after 6 o'clock P.M., and that having thus limited their
                                                                    ordinary care with respect to the safety of the property if any
offer they are not liable for the loss of the automobile. The
                                                                    other meaning may reasonably be ascribed to the language
limitations of their offer upon which they rely are evidenced
                                                                    employed. Langford v. Nevin, 117 Tex. 130, 133, 298 S.W.
by the sign over the entrance to the parking lot stating that the
                                                                    536.
lot closed at 6 P.M. and **1018 by the printed statement on
the claim check which has been quoted above.
                                                                     [3] But the sign was not seen by Mrs. Cavitt and it was
 [1] When Mrs. Cavitt left the automobile in petitioners'
                                                                    not called to her attention. She did not read the identification
parking lot for parking and safekeeping and paid or agreed
                                                                    check, and her attention was not directed to what was
to pay to petitioners the parking fee of twenty-five cents and
                                                                    printed on it. The general rule, and especially that of the
petitioners took possession of the automobile and gave Mrs.
                                                                    more recent decisions, is that limitations of the bailee's
Cavitt a claim check, the relation of bailor and bailee for
                                                                    responsibility expressed on signs or printed on claim checks
hire was created, and the obligation was imposed upon the
                                                                    do not become parts of the contracts of bailment and do
bailee to exercise ordinary care to protect the automobile from
                                                                    not bind the bailor unless they are called to his attention.
theft. Exporters' & Traders' Compress & Warehouse Co. v.
                                                                    Ablon v. Hawker, Tex.Civ.App., 200 S.W.2d 265; Union
Schulze, Tex.Com.App., 265 S.W. 133; Rhodes v. Turner,
                                                                    News Company v. Vinson, Tex.Civ.App., 227 S.W. 236;
Tex.Civ.App., 171 S.W.2d 208; Rhodes v. McDonald, 141
                                                                    Sandler v. Commonwealth Station Co., 307 Mass. 470, 30
Tex. 478, 172 S.W.2d 972; Ablon v. Hawker, Tex.Civ.App.,
                                                                    N.E.2d 389, 131 A.L.R. 1170 and Note pp. 1175, 1184-1202,
200 S.W.2d 265; Direct Navigation Co. v. Davidson, 32
                                                                    1205; Kravitz v. Parking Service Co., 240 Ala. 467, 199 So.
Tex.Civ.App. 492, 74 S.W. 790; Sandler v. Commonwealth
                                                                    731; Agricultural Insurance Co. v. Constantine, 144 Ohio
Station Co., 307 Mass. 470, 30 N.E.2d 389, 131 A.L.R.
                                                                    St. 275, 58 N.E.2d 658; Malone v. Santora, 135 Conn.
1170; Vol. 7, Blashfield's Cyclopedia of Automobile Law
                                                                    286, 64 A.2d 51; 8 C.J.S., Bailments, s 26, page 266; 6
and Practice, Perm.Ed., s 5022, pages 534-535; Williston on
                                                                    Am.Jur. pp. 275-276, Sec. 179; Note 175 A.L.R. pp. 8,
Contracts, (Rev.Ed.) Vol. 4, pp. 2921-2922, Sec. 1045, pp.
                                                                    123-128; 7 Blashfield's Cyclopedia of Automobile Law and
2960-2962, Sec. 1065a.
                                                                    Practice, Perm.Ed., s 5040, pages 560-562; 27 Georgetown
                                                                    Law Journal, pp. 162, 179.
The case before us comes to this: Did the obligation of
petitioners to exercise ordinary care for the protection of Mrs.
                                                                    Probably most of the decisions which apply the foregoing
Cavitt's automobile terminate at 6 o'clock P.M. of the day on
                                                                    rule are in cases where attempt is made to avoid or limit
which the automobile was delivered to them? The position
                                                                    responsibility for loss by fire or theft, but there are a number
taken by petitioners is that the foundation of bailment lies in
                                                                    of them in which the sign or statement on the claim check has
contract, that the parties may substitute a special contract for
                                                                    reference to closing time.
one implied in law, and that in this case a special contract
was made by petitioners' offer of parking service to the public     A Texas case, Ablon v. Hawker, Tex.Civ.App., 200 S.W.2d
from 8 o'clock A.M. to 6 o'clock P.M. and not after 6 o'clock       265, 266, is very closely in point. There, in a garage with
P.M., and by Mrs. Cavitt's acceptance of their offer when            **1019 no means of closing it, where automobiles were
she left her automobile with them. To sustain this position         accepted for storage, a sign was hung in plain view of the
petitioners depend upon the sign showing the closing hour           entrance: ‘Garage closes at 7:30 P.M. Cars left after this


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
McAshan v. Cavitt, 149 Tex. 147 (1950)
229 S.W.2d 1016

at owner's risk.’ The plaintiff, at 4 or 4:30 P.M., drove his       to the approval *153 of the decision of the Court of Civil
automobile to the entrance for storage and delivered it to an       Appeals of the two questions raised by these points.
attendant, accepting and putting in his pocket without reading
it a claim check, on which was printed: ‘Safe *152 inside           In Sandler v. Commonwealth Station Co., 307 Mass. 470,
parking. * * * Not responsible for damage by fire, theft, storm,    30 N.E.2d 389, 390, 131 A.L.R. 1170, the owner of an
accident, or articles left in car.’ He did not observe the sign     automobile delivered it to an attendant in a parking lot and
and neither asked for nor received any information as to the        received a claim check or ‘stub’ on which was printed: ‘We
conditions of the bailment. The key was left in the automobile      are not responsible for the car * * * while parked on our lot.
and no watchman or other employee was present in the garage         * * *. No attendant on duty after 6 p. m.’ He did not read
after 7:45 P.M. There were no barriers or obstructions to           what was printed on the ‘stub’. When he returned between 6
prevent a stranger from entering the garage and removing            and 6:15 P.M. there was no attendant present, and he found
the automobile. The automobile was stolen at about 9 o'clock        that the automobile had been stolen. The court, in affirming
P.M. The court, in opinions by two of the justices, with Chief      the trial court's judgment for the plaintiff, the owner of the
Justice Bond dissenting, affirmed the trial court's judgment        automobile, held that the limitation of liability appearing on
for the plaintiff, the owner of the automobile. It was held that    the stub given to the plaintiff, which was not read by him,
the burden which rested upon the plaintiff to prove that the        did not as a matter of law require the direction of a verdict
theft of the automobile was the result of the defendant's failure   for the operator of the parking lot, and expressed the opinion
to exercise reasonable and ordinary care for its protection         that a finding was warranted that a person in the position
against theft was fully discharged by the facts in evidence         of the plaintiff might properly assume, from the requirement
and that neither the sign nor what was printed on the claim         of a fee and the delivery of possession and control of the
check relieved the defendant of his obligation to exercise          automobile to the owner of a public parking station, that
reasonable care for the protection of the automobile and that        **1020 the owner assumed responsibility for its care, and
his obligation did not terminate at 7:30 P.M., the closing time,    further that the plaintiff could reasonably assume that the stub
because the plaintiff did not know that the garage closed at        was a receipt for his automobile, or a means of identifying
7:30 P.M., not having seen the sign and not having read the         him when he should return to get his automobile, rather than
claim check. The concurring opinion by Associate Justice            a contract freeing an apparent bailee from responsibility. See
Young, after referring to the words on the sign that the garage     also General Exchange Insurance Corp. v. Service Parking
closed at 7:30 P.M., and that cars left thereafter would be at      Grounds, 254 Mich. 1, 235 N.W. 898, 899; Kravitz v. Parking
the owner's risk, contains the following: ‘However, plaintiff       Service Co., 240 Ala. 467, 199 So. 731; Starita v. Campbell,
did not know this, and within two hours the car was stolen.         72 R.I. 405, 52 A.2d 303; Lewis v. Ebersole, 244 Ala. 200, 12
During such interval, under the circumstances, defendant            So.2d 543; Malone v. Santora, 135 Conn. 286, 64 A.2d 51.
owed plaintiff's property some measure of protection; and            [4] Since Mrs. Cavitt did not know of the limitations
it became a question of fact determinable by court or jury          expressed on the sign and on the claim check, and she was not
of whether the safeguards extended by defendant during              informed that the parking lot would close at 6 P.M. and that
the entire period of bailment were commensurate with his            the bailee would not be responsible for the automobile if left
continuing duty to exercise ordinary care.’ 200 S.W.2d 265,         after that time, and in view of the authorities that have been
272.                                                                discussed and cited above, it is our opinion that the contract
                                                                    of bailment did not include those limitations and that the
The application for writ of error in Ablon v. Hawker was            obligation of petitioners to use ordinary care for the protection
refused with the notation ‘no reversible error’. It presented       of the automobile did not terminate at 6 o'clock P.M.
as the principal points of error first the contention that there
was no evidence of negligence on the part of the defendant
proximately causing the loss, and second the contention that        It is true that the operator of a parking lot should be free to
by reason of the sign the contract of bailment terminated as        establish hours for opening and closing and that there should
a matter of law at the closing time, 7:30 P.M., and that the        be a method by which he could be relieved of responsibility
defendant having discharged all of his duties as bailee up to       for automobiles after the closing hour. We do not undertake
that time, was not liable for the loss. The writ of error would     to suggest what the method should be except that information
have been granted had the Court been of the opinion that            as *154 to the hour of closing and the time of the ending
either one of these points was well taken, and the refusal of       of responsibility for care of the automobile should be clearly
the application for the writ with the notation quoted amounted      and specifically brought to the attention of the bailor.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
McAshan v. Cavitt, 149 Tex. 147 (1950)
229 S.W.2d 1016

                                                                      title ‘Conclusions of Law’. The designation is not controlling,
One of petitioners' points of error is that the trial court did not
                                                                      and looking to all of the findings and conclusions we may
find as a fact that petitioners' negligence proximately caused
                                                                      consider this conclusion a finding of fact. Wells v. Yarbrough,
the theft of the automobile. The trial court, on request and
                                                                      84 Tex. 660, 663, 19 S.W. 865; First National Bank of Fort
after the rendition of judgment, filed elaborate findings of
                                                                      Worth v. Blewett, Tex.Civ.App., 89 S.W.2d 487, 490. But
fact and conclusions of law. One of the findings of fact is
                                                                      even if the conclusion is regarded as one of law, it seems
that the theft of the automobile was the result of negligence
                                                                      that a trial court's conclusion that the evidence establishes
on the part of petitioners in not adequately protecting it from
                                                                      proximate cause as a matter of law would necessarily include
theft. Among six paragraphs under the title ‘Conclusions of
                                                                      a finding of proximate cause as a fact supported by the
Law’ which immediately follow the ‘Findings of Fact’ is
                                                                      evidence. Be that as it may, we believe that the conclusion,
this paragraph: ‘The defendants were negligent in failing to
                                                                      together with the finding of fact that the theft was the result
provide adequate protection of such car against theft or loss
                                                                      of petitioners' negligence, and the fact that in the absence of
and that the plaintiffs' damage was proximately caused by
                                                                      express findings of fact an inference of a finding of proximate
the failure to exercise reasonable and ordinary care for the
                                                                      cause would be indulged in support of the judgment,-these
protection of such car.’
                                                                      taken together are enough to support the judgment in so far
 [5] [6] [7] The substance of petitioners' argument under
                                                                      as causal relation between the negligence and the theft are
this point is that the evidence does not support a conclusion
                                                                      concerned.
of law that the negligence was a proximate cause, but raises
the question only as an issue of fact, and that because
there is no finding of proximate cause as a fact among the             *155 The judgments of the Court of Civil Appeals and the
fact findings, the trial court's judgment is erroneous. The           district court are affirmed.
record affirmatively shows a conclusion by the court that the
negligence proximately caused the loss, and the court seems           Parallel Citations
to have made the mistake of writing that conclusion under the
                                                                      229 S.W.2d 1016

End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                5
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


                                                                     Affirmed in part, reversed and rendered in part, and
                                                                     remanded.
                     180 S.W.3d 183
                 Court of Appeals of Texas,
                          Austin.
                                                                      West Headnotes (68)
      Appellants, William McMILLIN and Mary
    Furse//Cross–Appellant, State Farm Lloyds,
                          v.                                         [1]    Appeal and Error
        Appellee, STATE FARM LLOYDS//                                            Qualifications and selection, impaneling
                                                                            and oath of jurors
 Cross–Appellees, William McMillin and Mary Furse.
                                                                            Appeal and Error
         No. 03–04–00171–CV. | Aug. 26,                                        Rulings on motions
    2005. | Rehearing Overruled Dec. 2, 2005.                               To preserve a complaint that trial court abused its
                                                                            discretion in refusing to strike a juror for cause,
Synopsis
                                                                            a party must not only obtain an adverse ruling
Background: Insureds who moved out of house damaged by
                                                                            on motion to strike, but also use a peremptory
water and mold brought action against homeowners insurer
                                                                            challenge against the veniremember involved,
to recover for breach of contract, deceptive acts or practices,
                                                                            exhaust its remaining peremptory challenges,
violation of the prompt pay requirements of the Insurance
                                                                            and notify the trial court that one or more specific
Code, and bad faith. The 201st Judicial District Court, Travis
                                                                            objectionable veniremembers will remain on the
County, Patrick O. Keel, J., entered summary judgment in
                                                                            jury list.
favor of insureds on coverage for mold, refused to strike
jurors for cause, entered judgment on jury verdict for damages              2 Cases that cite this headnote
of $1000, and refused to award attorney fees. Both parties
appealed.
                                                                     [2]    Jury
                                                                                   Exception or denial
                                                                            Any error in a trial court's denial of a challenge
Holdings: The Court of Appeals, Bob Pemberton, J., held
                                                                            for cause may be cured by the aggrieved party's
that:
                                                                            using a peremptory challenge to strike the
                                                                            veniremember in question.
[1] insureds failed to preserve all challenges to jurors;
                                                                            Cases that cite this headnote
[2] jurors did not have a disqualifying bias;

                                                                     [3]    Appeal and Error
[3] refusal to give spoliation instruction was not abuse of
                                                                               Overruling challenge
discretion;
                                                                            A trial court's error in denying challenge for
[4] evidence supported $1000 award for breach of contract;                  cause is harmful only if it forces the aggrieved
                                                                            party to accept an objectionable juror, i.e.,
[5] insureds were entitled to zero additional living expenses               the party's use of a peremptory challenge to
for loss of the use of their home;                                          cure error leaves it without a sufficient number
                                                                            of peremptory challenges to strike a specific
[6] insurer's internal telephone logs on insureds' calls to report          additional veniremember it finds objectionable.
property damage were not a “notice of claim”; and
                                                                            Cases that cite this headnote
[7] insureds were entitled to attorney fees.
                                                                     [4]    Appeal and Error
                                                                               Overruling challenge




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


       If a party, after expending a peremptory
       challenge on a veniremember unsuccessfully                    Cases that cite this headnote
       challenged for cause, has a sufficient number
       of peremptory challenges remaining to strike all       [8]    Appeal and Error
       other veniremembers found objectionable, it is                   Overruling challenge
       harmed by any error in the trial court's denial of
                                                                     Jury
       its challenge for cause.
                                                                            Exception or denial
       Cases that cite this headnote                                 A party cannot demonstrate harm arising from
                                                                     a trial court's denial of a challenge for cause
                                                                     unless (1) the party first attempts to cure the
 [5]   Appeal and Error
                                                                     error by using a peremptory challenge against
            Qualifications and selection, impaneling
                                                                     the veniremember involved and (2) its use of
       and oath of jurors
                                                                     the peremptory challenge causes the party to be
       A party aggrieved by denial of challenge                      unable to strike other objectionable jurors.
       for cause is required, before exercising its
       peremptory challenges, to alert the trial court that          Cases that cite this headnote
       the court's ruling on challenges for cause was
       erroneous and harmful, thus affording the trial
                                                              [9]    Appeal and Error
       court the opportunity to consider the merits of
                                                                          Qualifications and selection, impaneling
       that claim and to cure any error by such measures
                                                                     and oath of jurors
       as granting additional peremptory strikes. Rules
                                                                     Use      of     peremptory      strikes     against
       App.Proc., Rule 33.1.
                                                                     veniremembers not previously challenged for
       Cases that cite this headnote                                 cause resulted in failure to preserve complaints
                                                                     about refusal to strike prospective jurors; the
                                                                     appellants needed to use their three remaining
 [6]   Appeal and Error
                                                                     peremptory challenges on veniremembers they
          Overruling challenge
                                                                     had challenged for cause in order to preserve
       The refusal of the trial court to excuse an                   error regarding the district court's denial of their
       unqualified juror does not necessarily constitute             cause challenges to those veniremembers, and
       harmful error; the harm occurs only if the                    their failure to do so waived error as to three
       party uses all peremptory challenges and is                   of the six veniremembers they challenged on
       thus prevented from striking other objectionable              appeal.
       jurors from the list because he has no additional
       peremptory challenges.                                        1 Cases that cite this headnote

       Cases that cite this headnote
                                                              [10]   Appeal and Error
                                                                          Qualifications and selection, impaneling
 [7]   Appeal and Error                                              and oath of jurors
          Necessity of timely objection
                                                                     Appellants preserved error regarding three
       Jury                                                          veniremembers challenged for cause, even
              Exception or denial                                    though they did not identify the specific
       It is incumbent upon the complaining party to                 veniremembers previously challenged for cause
       inform the trial court at the time of alleged error           against whom they were intending to use
       in denying challenge for cause to prospective                 peremptory strikes; since the appellants had
       juror; once informed, the court is able to                    fewer peremptory strikes than the total number
       determine if the party was in fact forced to take             of veniremembers they had challenged for cause,
       objectionable jurors.                                         three veniremembers at issue on appeal would
                                                                     have remained on the jury list even if the


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


        appellants had used their peremptory challenges               the juror will not or did not act with impartiality.
        exclusively against veniremembers challenged                  V.T.C.A., Government Code § 62.105(4).
        for cause, and the appellants notified the district
        court of an insufficient number of peremptory                 Cases that cite this headnote
        challenges to strike the veniremembers they
        found objectionable, listed all veniremembers          [15]   Jury
        at issue on appeal, and requested additional                         Weight and effect of evidence
        peremptory strikes.
                                                                      A veniremember's statement that the plaintiff
        1 Cases that cite this headnote                               starts off slightly behind is not alone
                                                                      grounds for reversing a trial court's refusal
                                                                      to disqualify that member; instead, the court
 [11]   Appeal and Error                                              may permit further questioning that clarifies the
             Qualifications and selection, impaneling                 veniremember's position. V.T.C.A., Government
        and oath of jurors                                            Code § 62.105(4).
        Appellants did not waive error by using
        peremptory strikes against veniremembers who                  Cases that cite this headnote
        followed prospective jurors challenged for cause
        and by not using the strikes against the               [16]   Jury
        prior veniremembers; no authority required the                       Bias and Prejudice
        appellants to use their peremptory strikes against
                                                                      The relevant inquiry regarding bias of
        veniremembers challenged for cause in any
                                                                      prospective jurors is not where jurors start,
        particular order to preserve error.
                                                                      but where they are likely to end. V.T.C.A.,
        Cases that cite this headnote                                 Government Code § 62.105(4).

                                                                      Cases that cite this headnote
 [12]   Jury
               Bias and Prejudice
                                                               [17]   Jury
        “Prejudice” supporting disqualification of                           Bias and Prejudice
        prospective juror means prejudgment and
                                                                      A prospective juror's initial leaning is not
        consequently embraces bias. V.T.C.A.,
                                                                      disqualifying bias if it represents skepticism,
        Government Code § 62.105(4).
                                                                      rather than an unshakeable conviction. V.T.C.A.,
        Cases that cite this headnote                                 Government Code § 62.105(4).

                                                                      Cases that cite this headnote
 [13]   Jury
               Bias and Prejudice
                                                               [18]   Appeal and Error
        “Bias” supporting disqualification of prospective                Selection and impaneling of jurors
        juror is an inclination toward one side of the issue
                                                                      The failure to strike jurors for cause is reviewed
        rather than the other. V.T.C.A., Government
                                                                      for an abuse of discretion.
        Code § 62.105(4).
                                                                      Cases that cite this headnote
        Cases that cite this headnote

                                                               [19]   Appeal and Error
 [14]   Jury
                                                                           Review of questions of pleading and
               Bias and Prejudice
                                                                      practice
        To cause disqualification, the juror's biased state
        of mind must lead to the natural inference that




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


        The Court of Appeals must consider the entire                had before it the history of the litigation and the
        examination of a prospective juror on appeal                 progression of events specific to the discovery
        from denial of challenge for cause.                          dispute, heard the explanations and complaints
                                                                     of the parties, and struck a balance by granting a
        Cases that cite this headnote                                monetary sanction but, finding that the evidence
                                                                     was eventually presented or at least offered,
 [20]   Jury                                                         declining to award the full extent of sanctions
               Subject-Matter of Cause                               and the instruction.
        Jury                                                         2 Cases that cite this headnote
               Weight and effect of evidence
        Jurors in insureds' suit against homeowners
                                                              [23]   Pretrial Procedure
        insurer to recover for mental anguish from
                                                                         Failure to Comply; Sanctions
        delay in paying for loss of house as result
        of mold did not have a disqualifying bias by                 Sanctions are appropriate for spoliation of
        expressing concern about coverage for mold and               evidence when there was a duty to preserve
        an unwillingness to award $5 million; although               evidence, the alleged spoliator negligently or
        the jurors said in various ways that the insureds            intentionally spoliated the evidence, and the
        started out behind because of the nature of                  spoliation prejudiced the nonspoliator's ability to
        their claims and the amount they claimed, they               present its case or defense.
        said when questioned further that they would
                                                                     2 Cases that cite this headnote
        listen to the evidence and apply the relevant
        standards of proof, they were thus rehabilitated,
        and their statements that the $5 million demand       [24]   Trial
        far exceeded the estimated $500,000 value of the                  Failure of party to testify or to call witness
        house was a statement of fact, not evidence of               or produce evidence
        bias. V.T.C.A., Government Code § 62.105(4).                 A jury instruction regarding spoliation of
                                                                     evidence is proper when a party has deliberately
        1 Cases that cite this headnote
                                                                     destroyed evidence or has failed to either
                                                                     produce relevant evidence or explain its
 [21]   Appeal and Error                                             nonproduction.
             Qualifications and selection, impaneling
        and oath of jurors                                           1 Cases that cite this headnote

        Appellants waived ground for appealing denial
        of challenge for cause, where they did not            [25]   Trial
        assert it to the trial court. Rules App.Proc., Rule               Failure of party to testify or to call witness
        33.1(a).                                                     or produce evidence
                                                                     A “spoliation instruction” tells the jury that, if
        Cases that cite this headnote
                                                                     a party has control over a piece of evidence
                                                                     and fails to retain or produce it, the jury should
 [22]   Pretrial Procedure                                           presume that the evidence would have been
            Failure to Comply; Sanctions                             unfavorable to the party who controlled the
        Trial                                                        evidence.
             Failure of party to testify or to call witness
                                                                     1 Cases that cite this headnote
        or produce evidence
        Refusal to give a spoliation instruction based
        on homeowners insurer's failure to produce for        [26]   Appeal and Error
        deposition principal author of mold guidelines                  Depositions, affidavits, or discovery
        was not abuse of discretion; the district court


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        4
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


        A trial court's determinations whether to award
        a discovery sanction is reviewed under an abuse               3 Cases that cite this headnote
        of discretion standard.
                                                               [31]   Appeal and Error
        2 Cases that cite this headnote
                                                                         Sufficiency of Evidence in Support
                                                                      On appeal attacking the legal sufficiency of
 [27]   Appeal and Error                                              an adverse finding on an issue on which
           Conduct of trial or hearing in general                     appellant has the burden of proof, the Court
        The abuse of discretion standard applies to                   of Appeals examines the record for evidence
        review of a trial court's decision to give or refuse          supporting the finding that reasonable jurors
        a jury instruction.                                           could believe, disregarding all contrary evidence
                                                                      that reasonable jurors could ignore.
        2 Cases that cite this headnote
                                                                      Cases that cite this headnote
 [28]   Appeal and Error
           Total failure of proof                              [32]   Appeal and Error
        There is “no evidence” or legally insufficient                   Rendering Final Judgment
        evidence when (1) there is a complete absence of              If the proposition contrary to the verdict is
        evidence of a vital fact; (2) the court is barred by          established as a matter of law, the Court
        rules of law or of evidence from giving weight                of Appeals must render judgment for that
        to the only evidence offered to prove a vital fact;           proposition.
        (3) the evidence offered to prove a vital fact is
        no more than a mere scintilla; or (4) the evidence            1 Cases that cite this headnote
        conclusively establishes the opposite of the vital
        fact.                                                  [33]   Damages
                                                                         Weight and Sufficiency
        4 Cases that cite this headnote
                                                                      If the evidence favoring a particular amount
                                                                      of damage award is not contradicted by any
 [29]   Evidence                                                      other witness or attendant circumstances, and the
            Sufficiency to support verdict or finding                 same is clear, direct, and positive, and free from
        More than a scintilla of evidence exists when                 contradiction, inaccuracies, and circumstances
        the evidence supporting the finding, as a whole,              tending to cast suspicion thereon, it can be
        rises to a level that would enable reasonable and             taken as true, even if the evidence comes
        fair-minded people to differ in their conclusions;            from an interested witness, especially where the
        however, if the evidence is so weak as to do no               opposing party has the means and opportunity of
        more than create a mere surmise or suspicion                  disproving the testimony and fails to do so.
        of its existence, its legal effect is that it is no
        evidence.                                                     2 Cases that cite this headnote

        Cases that cite this headnote
                                                               [34]   Damages
                                                                         Questions for Jury
 [30]   Appeal and Error                                              If uncontradicted evidence favoring a particular
           Sufficiency of Evidence in Support                         amount of damage award is unreasonable,
        Parties attacking the legal sufficiency of an                 incredible, or questionable, it only raises a
        adverse finding on an issue on which they have                question of fact, and a judgment based on that
        the burden of proof must further demonstrate that             evidence is not required.
        the evidence conclusively established all vital
        facts in support of the issue.


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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)




        Cases that cite this headnote                               3 Cases that cite this headnote


 [35]   Appeal and Error                                     [39]   Damages
           Extent of Review                                            Questions for Jury
        When reviewing a challenge to the factual                   Juries have broad discretion in assessing
        sufficiency of the evidence, the Court of Appeals           damages where the law provides no precise legal
        must consider, weigh, and examine all of the                measure.
        evidence in the record.
                                                                    Cases that cite this headnote
        1 Cases that cite this headnote
                                                             [40]   Appeal and Error
 [36]   Appeal and Error                                               Amount of Recovery
           Sufficiency of Evidence in Support                       A jury's findings on damages will not be
        If a party is attacking the factual sufficiency             disregarded merely because its reasoning in
        of an adverse finding on an issue to which the              arriving at its figures may be unclear, so long as
        other party had the burden of proof, the attacking          a rational basis for its calculation exists.
        party must demonstrate that there is insufficient
        evidence to support the adverse finding.                    3 Cases that cite this headnote

        4 Cases that cite this headnote
                                                             [41]   Damages
                                                                       Weight and Sufficiency
 [37]   Appeal and Error                                            Damages cannot be based on mere speculation
           Manifest weight of evidence                              and hypothesis.
        On review of factual sufficiency of the evidence,
        the Court of Appeals should set aside the verdict           1 Cases that cite this headnote
        only if the evidence that supports the jury
        finding is so weak as to be clearly wrong and        [42]   Appeal and Error
        manifestly unjust, and the Court may not reverse               Judgment or Order
        merely because it concludes that the evidence
                                                                    Any error in granting summary judgment that
        preponderates toward a different answer.
                                                                    homeowners insurance policy covered loss due
        2 Cases that cite this headnote                             to mold did not harm insurer, where sufficient
                                                                    evidence of unpaid, non-mold-related expenses
                                                                    supported the $1000 award.
 [38]   Insurance
            Weight and sufficiency                                  Cases that cite this headnote
        Insurance
            Questions of law or fact                         [43]   Appeal and Error
        Evidence supported $1000 award for                             Submission of case or question to jury
        homeowners insurer's breach of contract in                  To complain of a damage award that improperly
        paying $346,875.62 on claim for total loss of               commingles valid and invalid theories of
        home due to water and mold damage; rather than              recovery, an appellant must object to the
        a binary choice or a series of binary choices, the          submission of a question to the jury that permits
        evidence presented a range of possible awards,              such commingling.
        and the jury's choice of a round figure near the
        low end of the range did not invalidate the award.          Cases that cite this headnote




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        6
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)




 [44]   Insurance                                           [48]   Insurance
            Loss of use in general; related expenses                   Ambiguity in general
        Insurance                                                  An ambiguity does not arise in an insurance
            Questions of law or fact                               policy simply because the parties advance
        Evidence supported jury's finding that insureds            conflicting interpretations of the policy,
        were entitled to zero additional living expenses           particularly if one conflicting interpretation is
        for loss of the use of their home and, thus,               unreasonable.
        were not entitled to eight months of mortgage
                                                                   Cases that cite this headnote
        interest, taxes, and insurance after moving into
        newly-purchased house following total loss of
        insured premises; the homeowners insurance          [49]   Insurance
        policy covered only reasonable and necessary                   Ambiguity in general
        expenses incurred during the reasonable time for           If the insurance policy is subject to one or more
        the insureds to become settled, and the jury was           reasonable interpretations, it is ambiguous.
        entitled to determine that the reasonable time
        during which the policy provided such coverage             Cases that cite this headnote
        was two days or less.
                                                            [50]   Contracts
        Cases that cite this headnote
                                                                       Construction as a whole
                                                                   Contracts
 [45]   Contracts
                                                                       Presumptions and burden of proof
            Ambiguity in general
                                                                   Courts assume that the parties to a contract
        The construction of an unambiguous contract is
                                                                   intended every clause to have some effect; courts
        a question of law for the court.
                                                                   cannot strike down any portion of a contract
        Cases that cite this headnote                              absent irreconcilable conflict.

                                                                   Cases that cite this headnote
 [46]   Contracts
            Construction as a whole
                                                            [51]   Customs and Usages
        Contracts                                                      Explanation of Contract
            Extrinsic circumstances
                                                                   Although courts give to words in a contract their
        Contracts                                                  plain, common, or generally accepted meaning,
            Ambiguity in general                                   they may resort to extrinsic sources to determine
        Whether a contract is ambiguous is a question              if a term has a generally understood meaning
        of law for the court to decide by examining the            peculiar to the specialized industry.
        contract as a whole in light of the circumstances
        present when the contract was entered.                     Cases that cite this headnote

        Cases that cite this headnote
                                                            [52]   Insurance
                                                                       Ambiguity, Uncertainty or Conflict
 [47]   Contracts                                                  Insurance
            Existence of ambiguity                                     Exclusions, exceptions or limitations
        A contract is unambiguous if it can be given a             When ambiguous insurance policy terms permit
        definite or certain legal meaning.                         more than one interpretation, courts construe the
                                                                   policy against the insurer, especially when the
        Cases that cite this headnote
                                                                   policy terms exclude or limit coverage.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                      7
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


                                                                   insurer and by a claimant, and the wrote the logs.
        Cases that cite this headnote                              V.A.T.S. Insurance Code, art. 21.55, §§ 1(5),
                                                                   2(a)(Repealed).
 [53]   Insurance
                                                                   Cases that cite this headnote
            Weight and sufficiency
        Conclusive evidence showed that homeowners
        insurer owed $990.13 for tarp to prevent further    [58]   Costs
        damage to home, even though adjuster testified                 Bad faith or meritless litigation
        that she mailed a check for that amount and even           If a claimant makes an excessive presuit demand
        though the insureds retained another check for             and will not take a lesser amount, the claimant
        ten months before cashing it; evidence indicated           is not entitled to attorney fees expended in
        that the insureds did not receive the check.               litigation thereafter, but the doctrine does not bar
                                                                   recovery of attorney fees expended before the
        Cases that cite this headnote                              excessive demand.

                                                                   2 Cases that cite this headnote
 [54]   Evidence
            Mailing, and delivery of mail matter
        Adjuster's testimony that she mailed check to       [59]   Costs
        insureds did not entitle insurer to presumption                Objections to taxation or to items
        that insureds received the check, where no                 Excessive demand is an affirmative defense to an
        evidence indicated that the letter had the proper          award of attorney fees and must be pleaded or
        address or postage.                                        tried by consent.

        Cases that cite this headnote                              1 Cases that cite this headnote


 [55]   Evidence                                            [60]   Insurance
            Conclusiveness and Effect                                  Duty to settle or pay
        Undisputed evidence contrary to a verdict may              Insurance
        be conclusive when a party admits it is true.                  Fraud or misrepresentation
                                                                   Insurance
        Cases that cite this headnote
                                                                       Interest
                                                                   Insureds under property insurance policy were
 [56]   Appeal and Error                                           not entitled to attorney fees under the Insurance
           Against Weight of Evidence                              Code, where they did not prevail on claims of
        When evidence contrary to a verdict is                     false, misleading, deceptive, or unconscionable
        conclusive, it cannot be disregarded on appeal.            actions or practices and were not entitled to
                                                                   interest penalties for delay in payment. V.A.T.S.
        Cases that cite this headnote                              Insurance Code, arts. 21.21, 21.55 (Repealed).

                                                                   Cases that cite this headnote
 [57]   Insurance
            Duty to settle or pay
        Homeowners insurer's internal telephone logs on     [61]   Insurance
        insureds' calls to report property damage were                 Costs and Attorney Fees
        not a “notice of claim” under statute specifying           Insureds were entitled to attorney fees for
        claim-handling periods that began upon receipt             prevailing on their breach-of-contract claim
        of notice of claim; the statute defined “notice            against homeowners insurer; no evidence
        of claim” as a notification in writing to an               supported the jury's award of zero attorney fees



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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


        for preparation and trial of the case. V.T.C.A.,
        Civil Practice & Remedies Code § 38.001(8).                    Cases that cite this headnote

        1 Cases that cite this headnote
                                                                [66]   Evidence
                                                                           Testimony of interested persons
 [62]   Insurance                                                      Testimony by an interested witness establishes
            Costs and Attorney Fees                                    a fact as a matter of law if: (1) the testimony
        The fact that a plaintiff makes a claim on                     could be readily contradicted if untrue; (2) it is
        an insurance policy does not automatically bar                 clear, direct, and positive; and (3) there are no
        recovery of attorney fees under statute permitting             circumstances tending to discredit or impeach it.
        award in suit for breach of contract; instead,
        in a policyholder's successful suit for breach of              1 Cases that cite this headnote
        contract against an insurer that is subject to other
        Insurance Code provisions, the insurer is liable        [67]   Costs
        for reasonable attorney fees incurred in pursuing                  Evidence as to items
        the breach-of-contract action, unless the insurer
                                                                       Where trial counsel's testimony concerning
        is liable for attorney fees under another statutory
                                                                       attorney fees is clear, positive, direct, and
        scheme. V.T.C.A., Civil Practice & Remedies
                                                                       uncontroverted, it is taken as true as a matter of
        Code §§ 38.001(8), 38.006.
                                                                       law, especially when the opposing party had the
        1 Cases that cite this headnote                                means and opportunity to disprove the testimony
                                                                       and failed to do so.

 [63]   Costs                                                          4 Cases that cite this headnote
            Evidence as to items
        Under some circumstances, an award of zero              [68]   Appeal and Error
        attorney fees to the prevailing party is proper;                  As to damages and costs
        a zero award is proper if the evidence (1)
                                                                       Appellate courts will reverse a denial or
        failed to prove (a) that any attorney services
                                                                       minimization of attorney fees and render
        were provided, or (b) the value of the services
                                                                       judgment for attorney fees in the amount proved,
        provided; or (2) affirmatively showed that no
                                                                       where trial counsel's testimony concerning
        attorney's services were needed or that any
                                                                       attorney fees is clear, positive and direct, and
        services provided were of no value. V.T.C.A.,
                                                                       uncontroverted.
        Civil Practice & Remedies Code § 38.001.
                                                                       6 Cases that cite this headnote
        Cases that cite this headnote


 [64]   Costs
            Duties and proceedings of taxing officer           Attorneys and Law Firms
        A jury cannot simply refuse to award attorney
        fees if any were properly proven.                      *190 Blair Dancy, Michael S. Hull, Hull Henricks &
                                                               MacRae LLP, Austin, TX, for Appellants.
        1 Cases that cite this headnote
                                                               Linda J. Burgess, Peter A. Nolan, Craig T. Enoch and Melissa
                                                               Anne Prentice, Winstead Sechrest & Minick, P.C., Austin,
 [65]   Costs                                                  TX, for Appellee.
            Evidence as to items
        Uncontroverted testimony by an interested              Before Justices      B.A.     SMITH,      PURYEAR            and
        witness may establish a right to attorney fees as      PEMBERTON.
        a matter of law.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           9
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


                                                                     misleading or deceptive acts or practices and unconscionable
                                                                     acts in violation of the Deceptive Trade Practices Act
                           OPINION                                   (“DTPA”), see Tex. Bus. & Com.Code Ann. §§ 17.45(5)
                                                                     (West 2002), 17.46(a) (West Supp.2004–05); unfair and
BOB PEMBERTON, Justice.                                              deceptive acts or practices in violation of the insurance code,
                                                                     see Tex. Ins.Code Ann. art. 21.21 (West Supp.2004–05);
Both parties appeal from a judgment based on a jury verdict          violation of the “prompt pay” requirements of the insurance
awarding William McMillin and Mary Furse (“McMillins” 1 )            code, see id. art. 21.55, § 2; and breach of its common-law
 *191 $1000 for the breach of an insurance contract by               duty of good faith and fair dealing. The McMillins sought
State Farm Lloyds (“State Farm”), but rejecting several other        $5 million in damages, exemplary damages, attorney's fees,
damage claims by the McMillins. The McMillins complain               costs, and interest.
about the district court's failure to strike six jurors for cause.
They also complain that they are entitled to recover additional      Both parties filed motions for partial summary judgment.
damages and attorney's fees. State Farm challenges the $1000         State Farm moved for judgment that its policy expressly
award and the award of statutory interest penalties. We will         excluded coverage for remediation or repair of a home for
affirm the judgment in part, reverse the judgment in part,           damages caused by mold. The McMillins filed a cross-motion
render judgment in part, and remand part of the cause for            for partial summary judgment that the policy did not exclude
further proceedings.                                                 coverage for remediation or repair of a home for damages
                                                                     caused by mold if that damage resulted from damages caused
                                                                     by water. The court granted the McMillins' motion and denied
                       BACKGROUND                                    State Farm's motion.

The claims underlying this appeal arose while the McMillins          The McMillins' claims were tried to a jury, which found that
were renovating their house. The McMillins had removed a             State Farm had failed to comply with its policy, but failed to
portion of the roof and covered the opening with tarp. On            find State Farm liable on any of the McMillins' other claims.
October 6, 2000, a storm hit and the tarp failed to prevent          The jury found that State Farm received all items, statements,
water from entering the house. The McMillins filed a claim           and forms requested and required from the McMillins on July
with their homeowners' insurance carrier, State Farm, and,           31, 2001, which *192 served as the trigger date for the
within a few days, State Farm made a payment of $2508.35             deadlines for State Farm's duty to investigate, resolve, and
for viewable damage. Later that same month, after additional         pay claims promptly. See id. As damages for breach of the
inclement weather, the McMillins reported additional water           policy, the jury awarded the McMillins $1000 representing
damage, along with mold growth throughout the house.                 the amount, less amounts actually paid, that should have been
Unlike the case with the McMillins' initial claim, several           paid under Coverage A Dwelling coverage; the court awarded
months passed before State Farm paid the second claims. On           $76.44 in prejudgment interest on this claim. However, the
March 1, 2001, a mold remediator sent a fax to State Farm            jury found zero damages for additional amounts that should
opining that remediation was so expensive that it was no             have been paid under the policy's loss of use coverage and for
longer cost-effective; State Farm did not share that estimate        reasonable and necessary expenses incurred in attempting to
with the McMillins. On August 7, 2001, a week after getting          prevent further damage to the house.
another estimate from the mold remediator, State Farm paid
$344,367.27 to the McMillins on their claim of water damage
resulting in mold; thus, State Farm paid $346,875.62 to
                                                                                            DISCUSSION
compensate the McMillins for their covered losses, an amount
that excludes the $1000 deductible. By August 2001, the              Both parties appeal. In what they term their “Primary Issue,”
McMillins had purchased another home and moved there,                the McMillins urge that the district court abused its discretion
partly in order to enable their planned adoption of a child to       in failing to strike six jurors for cause and that we should
move forward.                                                        accordingly remand this case for a new trial. The McMillins
                                                                     also contend that the district court abused its discretion
The McMillins sued State Farm, asserting causes of                   in failing to give a spoilation instruction as sanctions
action including breach of the insurance agreement, false,           against State Farm for discovery abuse and spoilation of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              10
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


evidence that they claim prevented them from attacking State      San Antonio, Inc., 159 S.W.3d 87, 90–91 (Tex.2005); Hallett
Farm's interpretation of their homeowners' policy at trial.       v. Houston Northwest Medical Ctr., 689 S.W.2d 888, 890
The McMillins also present legal and factual sufficiency          (Tex.1985). These requirements derive from harmless error
challenges to (1) the jury's award of zero additional living      principles. Any error in a trial court's denial of a challenge
expenses under the loss of use provision of the insurance         for cause may be cured by the aggrieved party's using a
contract; (2) the jury's award of zero expenses incurred by the   peremptory challenge to strike the veniremember in question.
McMillins to prevent further damage; (3) the jury's finding       See Cortez, 159 S.W.3d at 90 (“When a challenge for
that State Farm had received all items, statements, and forms     cause is denied, that error can be corrected by striking the
requested and required from the McMillins on July 31, 2001;       venireperson peremptorily.”). For this reason, the trial court's
and (4) the jury's award of zero attorney's fees under the        error would be harmful to the aggrieved party only if it forced
McMillins' breach of contract and Article 21.55 theories.         the party to accept an objectionable juror; i.e., the party's
                                                                  use of a peremptory challenge to cure error leaves it without
State Farm brings four issues, three of which attack the          a sufficient number of peremptory challenges to strike
underpinnings of the jury's $1000 award on the McMillins's        a specific additional veniremember it finds objectionable.
breach of contract claim relating to Coverage A. It first         See id. at 90. 3 Consistent with general error preservation
challenges the legal sufficiency of the evidence supporting the   principles, see Tex.R.App. P. 33.1, the aggrieved party is
jury's decision to award the amount of $1000. In its second       required, before exercising its peremptory challenges, to alert
issue, State Farm contends that the district court erred in       the trial court that the court's ruling on challenges for cause
granting the McMillins summary judgment that mold damage          was erroneous and harmful, thus affording the trial court
was not excluded under Coverage A, and in denying State           the opportunity to consider the merits of that claim and
Farm summary judgment that such damage was excluded.              to cure any error by such measures as granting additional
In its third issue, State Farm argues that because mold
                                                                  peremptory strikes. See Hallett, 689 S.W.2d at 889–90; 4 see
damage was excluded from Coverage A, its payments to the
                                                                  also Texas Gen. Indem. Co. v. Moreno, 638 S.W.2d 908, 912
McMillins for water damage were adequate and, thus, there
                                                                  (Tex.App.-Houston [1st Dist.] 1982, no writ) (“Prior to the
was no evidence that it breached the policy contract. In its
                                                                  time the peremptory challenges are made the complaining
fourth issue, State Farm urges that the district court erred
                                                                  party has not been harmed by any unfavorable ruling. The
by awarding statutory interest penalties under article 21.55
                                                                  harmful effect occurs only when an improper ruling forces the
because the McMillins failed to offer evidence that they ever
                                                                  complaining party to accept undesirable jurors and no avenue
gave written notice, which State Farm contends was required
                                                                  of relief is available.”) (cited with approval in Hallett, 689
by the statute.
                                                                  S.W.2d at 889).


Challenges for cause                                              In this case, the McMillins made challenges for cause
The McMillins complain that the trial court abused its            to several veniremembers that were overruled by the
discretion by overruling their challenges for cause of six        district court. Subsequently, before presenting their list of
                                                                  peremptory challenges to the district court, the McMillins'
veniremembers who were seated on the jury. 2 State Farm
                                                                  attorney reiterated some of these challenges while making the
argues that the McMillins neither preserved their complaints
                                                                  following statement on the record:
nor showed that the court abused its discretion by refusing to
strike these jurors for cause.                                                 Your Honor, because the Court
                                                                               refused to remove certain jurors
                                                                               for cause, the defendant will have
Preservation
                                                                               no preemptory [sic] strikes left
 [1] [2] [3] [4] [5] [6] [7] To preserve a complaint
                                                                               to challenge those objectionable
that the court abused its discretion in refusing to strike a
                                                                               panelists. And I will list them
juror for cause, a party must not *193 only obtain an
                                                                               momentarily. To cure the error, the
adverse ruling on their motion to strike, but must also “use
                                                                               plaintiffs ask the Court to strike
a peremptory challenge against the veniremember involved,”
                                                                               these following jurors for cause, or,
exhaust its remaining peremptory challenges, and notify
                                                                               in the alternative to grant plaintiffs
the trial court that one or more specific objectionable
                                                                               additional preemptory [sic] strikes for
veniremembers will remain on the jury list. Cortez v. HCCI–


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


            each, starting *194 with Juror No. 1,                 [10] But the McMillins have preserved error regarding the
            5, 12, 14, 16, 29, 34, 36, 40, 41, 48, 50,           remaining three veniremembers they challenge on appeal.
            and 54. And in that order of preference.             The McMillins had fewer peremptory strikes than the total
                                                                 number of veniremembers they had challenged for cause and,
After the district court denied the McMillins' re-urged          thus, could not possibly have used peremptory challenges
challenges for cause and request for additional peremptory       against every “veniremember involved” to cure error. Cortez,
strikes, the McMillins exhausted their six peremptory            159 S.W.3d at 91. In other words, *195 even if the
strikes 5 on veniremember numbers 7, 15, 22, 31, 37, and 38.     McMillins had used their peremptory challenges exclusively
Three of these veniremembers—15, 22, and 37—were among           against veniremembers they had challenged for cause, three
those whom the McMillins had unsuccessfully challenged for       of the veniremembers at issue in this appeal would have
cause; the other three were not. The jurors ultimately seated    remained on the jury list. 7 Lacking peremptory challenges
included seven panelists whom the McMillins had moved            to use against those veniremembers, the McMillins notified
to strike for cause and whom they had identified in their        the district court that “because the Court refused to remove
statement as objectionable jurors whom the court's rulings       certain jurors for cause,” they would have an insufficient
would force them to accept: numbers 1, 5, 12, 14, 16, 29, and    number of peremptory challenges to strike the veniremembers
34.                                                              they found objectionable, listed all six of the veniremembers
                                                                 at issue on appeal, 8 and requested additional peremptory
The McMillins contend on appeal that the district court
                                                                 strikes.
abused its discretion in refusing to strike for cause
veniremembers 1, 5, 12, 14, 16, and 29. State Farm maintains
                                                               State Farm contends that the McMillins waived error because
that the McMillins failed to preserve error regarding their
                                                               they did not identify the specific veniremembers previously
challenges for cause to any of these veniremembers. We agree
                                                               challenged for cause against whom they were intending
that the McMillins have waived error as to some of these
                                                               to use peremptory strikes. Only by specifically identifying
veniremembers, but not all.
                                                               those veniremembers, State Farm insists, could the McMillins
                                                               enable the district court to determine that they were, in fact,
 [8]    [9]    Under Cortez and Hallett, a party cannot
                                                               being forced to accept objectionable jurors. See Hallett, 689
demonstrate harm arising from a trial court's denial of a
                                                               S.W.2d at 890. We disagree. Under these circumstances,
challenge for cause unless (1) the party first attempts to
                                                               where the McMillins reminded the court that they had
cure the error by using a peremptory challenge “against the
                                                               challenged thirteen veniremembers for cause and that the six
veniremember involved” and (2) its use of the peremptory
                                                               peremptory challenges were insufficient to strike all of them,
challenge causes the party to be unable to strike other
                                                               the McMillins adequately apprised the court that its denials of
objectionable jurors. Cortez, 159 S.W.3d at 90–91; Hallett,
                                                               the challenges for cause were forcing the McMillins to accept
689 S.W.2d at 889–90. Here, the McMillins used three of
their peremptory challenges to strike veniremembers they       objectionable jurors. 9
had previously challenged for cause, 15, 22, and 37; they
do not, however, appeal the district court's rulings regarding  [11]    We also reject State Farm's argument that the
these veniremembers. But, rather than using their remaining    McMillins  waived error by using peremptory strikes against
three peremptory challenges to strike other veniremembers      veniremembers 15, 22, and 37 rather than on earlier-reached
they had challenged for cause (and thereby remedy any          jurors they had also challenged for cause, 1, 5, 12 and 14.
error in the court's rulings regarding those panelists), the   We find no authority that would have required the McMillins
McMillins opted instead to strike veniremembers they had       to use their peremptory strikes against veniremembers
not previously challenged for cause. We believe that Cortez    challenged for cause in any particular order to preserve error.
and Hallett required the McMillins to use their three
remaining peremptory challenges on veniremembers they had        The net effect of our holdings is that the McMillins must
challenged for cause in order to preserve error regarding        demonstrate that the district court abused its discretion
the district court's denial of their cause challenges to those   in overruling their for-cause challenges to at least four
veniremembers. Their failure to do so waived error as to three   veniremembers—one panelist more than the three for which

of the six veniremembers they challenge on appeal. 6             error was waived—in order to show harm. 10 Conversely,
                                                                 we must affirm the district court's rulings if it did not abuse



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          12
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


its discretion in denying the McMillins' for-cause challenges     expressed concern that the lawsuits had raised her home-
regarding at least three veniremembers.                           insurance premiums and would prevent her from obtaining
                                                                  new home insurance. Of the latter, she said, “I think it could
                                                                  bias me.” She also said, “[I]t would be very difficult for
Merits                                                            you to prove to me that a house that's worth $500,000, that
 [12] [13] [14] Veniremembers may be disqualified for they should get $5 million.” She told the McMillins that they
cause from serving on a petit jury for several reasons. See       would be “starting behind” with her as a juror and that she was
Tex. Gov't Code Ann. § 62.105 (West 2005). They may               not the best juror for the McMillins' case. Roberts asserted,
be disqualified if they are directly or indirectly interested     however, that she would listen to the facts and would award
in the outcome of the suit. See id. § 62.105(2). They may         the McMillins $5 million if the evidence supported the award,
also *196 be disqualified if they are prejudiced or biased        including damages for mental anguish. She said that the fact
for or against one of the parties. See id. § 62.105(4); see       that the case involved mold would not affect her ability to
Goode v. Shoukfeh, 943 S.W.2d 441, 452–53 (Tex.1997).             determine and award damages for the repair and replacement
Prejudice “means prejudgment, and consequently embraces           costs of the house.
bias.” Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963).
Bias is “an inclination toward one side of the issue rather       No. 12, Jennifer Emmons initially agreed with the McMillins'
than the other.” Goode, 943 S.W.2d at 453. But to cause           characterization of her attitude toward their complaints that
disqualification, the juror's biased state of mind must lead to   she “couldn't award [$5 million], no way, not ever, no how,
the natural inference that the juror will not or did not act with under any circumstances.” She also said that she *197 had
impartiality. Id. (citing Compton, 364 S.W.2d at 182).            a problem awarding mental anguish damages and punitive
                                                                   damages if the repair costs were covered. She agreed that
 [15]      [16]     [17] In Cortez, the Texas Supreme Court the McMillins would have to bring more than fifty-one
emphasized that a veniremember who has made statements             percent proof to convince her they were entitled to mental
indicating possible bias may be rehabilitated. 11 Cortez,          anguish damages and proof almost beyond all doubt to
159 S.W.3d at 91–92. A veniremember's statement that the           earn punitive damages. Under examination by State Farm,
plaintiff starts off “slightly behind” is not alone grounds for    Emmons reiterated that awarding mental anguish damages
reversing a trial court's refusal to disqualify that member. See   was against her nature, but said that she would follow the
Cortez, 159 S.W.3d at 94; Goode, 943 S.W.2d at 452 n. 4,           judge's instructions and would apply the evidentiary standards
453. Instead, the court may permit further questioning that        for proof of mental anguish and punitive damages.
clarifies the veniremember's position. Cortez, 159 S.W.3d at
93. As the supreme court explained, the relevant inquiry is        No. 29, Arthur Flores first said that he could not award the
“not where jurors start but where they are likely to end. An       full amount of damages requested no matter what because
initial ‘leaning’ is not disqualifying if it represents skepticism “[t]hat's too much.” He later said he could award the damages
rather than an unshakeable conviction.” Id. at 94.                 if proven.

 [18] [19] We review the failure to strike jurors for cause       Under the applicable legal standards as clarified by Cortez,
for an abuse of discretion. Cortez, 159 S.W.3d at 93. We find     and giving due deference to the district court's front-line
error only where there is an abuse of discretion, recognizing     assessment of credibility and demeanor, we find no abuse of
that trial judges are in a better position to evaluate the        discretion in the district court's refusal to strike these jurors
veniremembers' sincerity in their responses and capacity for      for cause. Although some of these jurors said in various ways
fairness and impartiality. Id. (citing Swap Shop v. Fortune,      that the McMillins “started out behind” because of the nature
365 S.W.2d 151, 154 (Tex.1963)). We must consider the             of their claims and the amount they claimed, when questioned
entire examination. Cortez, 159 S.W.3d at 93.                     further they said that they would listen to the evidence and
                                                                  apply the relevant standards of proof; this is the type of
 [20] Applying these standards, we conclude that the              rehabilitation approved by Cortez. See 159 S.W.3d at 93–
district court did not abuse its discretion with respect to at    94. The jurors' statements that the $5 million demand far
least three of the veniremembers challenged on appeal. 12         exceeded the estimated $500,000 value of the house was a
Veniremember No. 1, Linda Roberts, asserted that the crisis       statement of fact, not evidence of bias.
over mold in homes was “very much overstated” and she



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            13
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


 [21] Because we have concluded that the district court did         The McMillins again sought relief from the district court,
not abuse its discretion in overruling the McMillins' for-cause     requesting monetary sanctions of $1000 as reasonable and
challenges to these three veniremembers, the McMillins              necessary attorney's fees, a spoliation instruction to the
could not, in light of our preservation holding, demonstrate        jury regarding State Farm's failure to produce Leffew, and
harm from any error in the district court's rulings on their        exclusion of any evidence from State Farm seeking to explain
other three for-cause challenges. We thus express no opinion        its failure to produce Leffew. The proposed instruction stated:
regarding whether the district court abused its discretion
with respect to the McMillins' challenges to No. 14, Arnulfo          You are instructed that State Farm employee Floyd Leffew
Guajardo, and No. 16, Kevin Johnson, both of whom were                was a principal author of Policy Guideline O.G. 75–110
                                                                      entitled Mold Mildew and Other Fungi. Mr. Floyd Leffew
State Farm policyholders, 13 or No. 5, Samuel Stone, Jr. 14
                                                                      has testified in another case that he is the principal author
We overrule the McMillins' primary issue.
                                                                      for O.G. 75–110. He has also testified that he sits on a
                                                                      committee that reviews, modifies, and updates other policy
Request for spoliation instruction                                    guidelines that potentially govern water claims involving
 [22] The McMillins next contend that the district court              mold.
abused its discretion in failing to give a spoliation instruction
                                                                      The Defendant should have but failed to identify Mr.
based on State Farm's failure to produce a witness for
                                                                      Leffew as a person with knowledge of facts relevant to this
deposition in Austin, as had been ordered by the district court.
                                                                      case.
The McMillins encountered considerable frustration in their
attempts to obtain discovery regarding State Farm's internal          The Defendant was ordered by the Court to produce Mr.
Operations Guidelines governing the carrier's handling of             Leffew for a deposition in Austin. The Defendant refused
mold claims. Although the McMillins had requested the                 to comply with the Court's Order.
operations guidelines in discovery, State Farm did not
produce the documents or acknowledge their existence                  You may draw whatever inference you feel is reasonable
until after the discovery period had closed. The McMillins            from the Defendant's defiance of the Court's Order to
sought relief from the district court, which ordered State            produce Mr. Leffew in Austin for a deposition.
Farm to produce for deposition a corporate representative
                                                                    State Farm attempted to explain its failure to produce Leffew
most knowledgeable about the guidelines. 15 *198 State
                                                                    as ordered as an error by counsel who, at the previous hearing,
Farm responded by producing a manager, Jeff Grabill, who
                                                                    had agreed to produce Leffew in Austin without first inquiring
admitted during his deposition that he actually knew little
                                                                    whether the witness was in fact available. Noting that it
about the mold guidelines. The McMillins again sought relief
                                                                    had ordered State Farm to produce Leffew in Austin, the
from the district court, which agreed that State Farm had
                                                                    district court awarded the McMillins the $1000 sanction they
violated the prior order by failing to produce the person most
                                                                    had requested. However, the court denied all other relief,
knowledgeable about the guidelines. Following consultation
                                                                    stating that it believed the proposed instruction to be an
with the parties, the court ordered State Farm to produce in
                                                                    improper comment on the evidence and that this ruling, as
Austin for deposition Floyd Leffew, who was represented
                                                                    the McMillins acknowledge, mooted their request to exclude
to be the guidelines' author. But State Farm subsequently
                                                                    evidence.
refused to produce Leffew in Austin on the basis that he
was soon retiring from State Farm and that, prior to that
                                                                     [23] [24] [25] Sanctions are appropriate for spoliation
time, his wife was having surgery, requiring him to remain
                                                                    of evidence when there was a duty to preserve evidence,
with her in Illinois. Leffew also claimed to have developed
                                                                    the alleged spoliator negligently or intentionally spoliated
a sinus infection that precluded his traveling to Austin by
                                                                    the evidence, and the spoliation prejudiced the nonspoliator's
either air or car. State Farm did, however, offer the McMillins
                                                                    ability to present its case or defense. Offshore Pipelines,
the opportunity to depose Leffew by videoconference or in
                                                                    Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex.App.-Houston
person at Leffew's Illinois home, and offered to pay the
                                                                    [1st Dist.] 1998, no pet.) (citing Trevino v. Ortega, 969
expenses of the McMillins' counsel. With trial looming in less
                                                                    S.W.2d 950, 954–55 (Tex.1998) (Baker, J. concurring)). A
than five days, the McMillins declined.
                                                                    jury *199 instruction regarding spoliation is proper when
                                                                    a party has deliberately destroyed evidence or has failed to
                                                                    either produce relevant evidence or explain its nonproduction.


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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


                                                                   a party's attempts to explain delays and unresponsiveness.
Wal–Mart v. Johnson, 106 S.W.3d 718, 721–22 (Tex.2003).
                                                                   We accordingly review a trial court's determinations whether
A spoliation instruction tells the jury that, if a party has
                                                                   to award discovery sanction under an abuse of discretion
control over a piece of evidence and fails to retain or produce
                                                                   standard. Reiff v. Roy, 115 S.W.3d 700, 707 (Tex.App.-
it, the jury should presume that the evidence would have been
                                                                   Dallas 2003, no pet.); see also TransAmerican Natural Gas
unfavorable to the party who controlled the evidence. Id. at
                                                                   Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). We also
720–21.
                                                                   apply the abuse of discretion standard in reviewing a trial
                                                                   court's decision to give or refuse a jury instruction. Wal–Mart
The McMillins complain that State Farm's failure to produce
                                                                   Stores, Inc. v. Johnson, 106 S.W.3d 718, 719 (Tex.2003);
Leffew left them without meaningful discovery regarding
                                                                   Interstate Northborough P'ship v. State, 66 S.W.3d 213, 224
the carrier's interpretation of its mold operational guidelines.
                                                                   (Tex.2001).
For instance, the McMillins construed a guideline stating
that status letters should be sent to the insured at regular
                                                                   Giving due deference to the district court's firsthand
intervals (usually every 30 days) as a mandatory requirement
                                                                   assessment of these facts, we cannot say that it abused its
because it appeared in a section of the guidelines labeled
                                                                   discretion in refusing to give the instruction the McMillins
as “requirements.” At trial, State Farm's witness opined
                                                                   requested. (We express no opinion as to whether the district
that, by contrast, frequent oral contact with the client could
                                                                   court would have been within its discretion in imposing this
substitute for sending a regular form letter, although the
                                                                   or any other discovery sanctions, *200 had it done so.) The
guidelines did not expressly permit that substitution. The
                                                                   district court had before it the history of the litigation and
McMillins complain that State Farm's conduct deprived them
                                                                   the progression of events specific to the discovery dispute.
of the opportunity to discover State Farm representatives
                                                                   It heard the explanations and complaints of the parties,
who, in the McMillins' words, “might have” interpreted the
                                                                   and struck a balance by granting a monetary sanction but,
operational guidelines in their favor. The McMillins urge
                                                                   finding that the evidence was eventually presented or at least
that this evidence was highly relevant to whether State Farm
                                                                   offered, declining to award the full extent of sanctions and the
engaged in an unconscionable, unfair, or deceptive act or
                                                                   instruction the McMillins requested. This is the essence of an
practice. They insist that the district court's failure to give
                                                                   exercise of discretion, and we find no abuse of that discretion.
the instruction was harmful because, having been deprived
of discovery on the issue, they could not otherwise rebut
State Farm's evidence concerning its interpretation of the
                                                          Breach of contract damages
guidelines.                                               The district court submitted an issue on the McMillins' breach
                                                          of contract theory, “Did State Farm fail to comply with the
 [26]    [27] “Discovery in civil cases is founded on the terms of the policy between it and Plaintiffs....?” The jury
principle that justice is best served when litigants may  responded, “Yes.” Predicated upon its liability submission,
obtain information not in their possession to prosecute
                                                          the court also submitted the following damages issue, with
and defend claims.” Explanatory Statement Accompanying    the jury's responses so indicated:
the 1999 Amendments to the Rules of Civil Procedure
Governing Discovery, Order of Approval of the Revisions                 What sum of money, if paid
to the Texas Rules of Civil Procedure, Misc. Docket No.                 now in cash, would fairly and
                                16                                      reasonably compensate Plaintiffs for
98–9196, (Tex. Nov. 9, 1998).      Abuse of the discovery
process through unwarranted delays and unresponsiveness                 their damages, if any, that resulted
accordingly subverts justice, and we condemn any such                   from such failure to comply?
conduct. At the same time, however, we recognize that trial
judges are in the best position to evaluate the often complex
facts and equities of discovery disputes and determine
                                                                                                ***
whether discovery abuse has in fact occurred, the relative
culpability and harm of such conduct, and the credibility of
         The amount that should have been paid minus the amount actually paid
         under Coverage
         A Dwelling coverage under the Policy:                                                                     $    1,000


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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)




        The amount that should have been paid minus the amount actually paid
        under Loss of

        Use coverage under the Policy:                                                                     $       0

        The amount that should have been paid minus the amount actually paid
        for reasonable and necessary expenses incurred in attempt-
        ing to prevent further damage to the home:                                                         $       0

                                                               effect is that it is no evidence. Haynes & Boone v. Bowser
State Farm contends that no evidence supports the award
                                                               Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995).
of $1000 in damages under Coverage A. It also attacks
the underpinnings of that award, asserting that the district
                                                                *201 [30] [31] [32] [33] [34] Parties attacking the
court erred in granting summary judgment that Coverage A
                                                               legal sufficiency of an adverse finding on an issue on which
encompassed mold damage and that, accordingly, it did not
                                                               they have the burden of proof must further demonstrate that
breach the policy because the amount it paid for repairs for
                                                               the evidence conclusively established all vital facts in support
water damage fully discharged its Coverage A obligations as
                                                               of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
a matter of law.
                                                               (Tex.2001). We examine the record for evidence supporting
                                                               the finding that reasonable jurors could believe, disregarding
The McMillins contend that the evidence was legally and
                                                               all contrary evidence that reasonable jurors could ignore. City
factually insufficient to support the jury's failure to award
                                                               of Keller, 168 S.W.3d 802, 807. If the proposition contrary
damages for additional living expenses under Loss of Use
                                                               to the verdict is established as a matter of law, we must
coverage or expenses incurred in attempting to prevent
                                                               render judgment for that proposition. Dow, 46 S.W.3d at
further damage. They assert that the evidence conclusively
                                                               241. If the evidence favoring a particular amount of damage
established their entitlement to $34,800 for additional living
                                                               award is not contradicted by any other witness or attendant
expenses under the loss of use coverage and to $990 for
                                                               circumstances, and the same is clear, direct and positive,
expenses incurred in attempting to prevent further damage.
                                                               and free from contradiction, inaccuracies, and circumstances
                                                               tending to cast suspicion thereon, it can be taken as true
Standard of review                                             —even if the evidence comes from an interested witness.
 [28]    [29] There is “no evidence” or legally insufficient Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882
evidence when (a) there is a complete absence of evidence      (Tex.1990). This is especially true where the opposing party
of a vital fact; (b) the court is barred by rules of law or of has the means and opportunity of disproving the testimony,
evidence from giving weight to the only evidence offered to    if it is not true, and fails to do so. Id. An appellate court can
prove a vital fact; (c) the evidence offered to prove a vital  render judgment based on such uncontradicted testimony. Id.;
fact is no more than a mere scintilla; or (d) the evidence     see also Brown v. Bank of Galveston, N.A., 963 S.W.2d 511,
conclusively establishes the opposite of the vital fact. City  515 (Tex.1998). However, if the uncontradicted evidence
of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex., 2005) &        is unreasonable, incredible, or questionable, it only raises a
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711       question of fact, and a judgment based on that evidence is not
(Tex.1997) (both citing Robert W. Calvert, “No Evidence”       required. See Ragsdale, 801 S.W.2d at 882.
and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev.
361, 362–63 (1960)). More than a scintilla of evidence exists   [35] [36] [37] When reviewing a challenge to the factual
when the evidence supporting the finding, as a whole, “rises   sufficiency of the evidence, we must consider, weigh, and
to a level that would enable reasonable and fair-minded        examine all of the evidence in the record. Plas–Tex, Inc.
people to differ in their conclusions.” Havner, 953 S.W.2d at  v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). If
711; Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25      a party is attacking the factual sufficiency of an adverse
(Tex.1994). If the evidence is so weak as to do no more than   finding on an issue to which the other party had the burden
create a mere surmise or suspicion of its existence, its legal of proof, the attacking party must demonstrate that there is



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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


insufficient evidence to support the adverse finding. Westech     the plaintiff had presented no evidence of the cost of
Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190,     the spoiled food, the supreme court held that he was not
196 (Tex.App.-Austin 1992, no writ). We should set aside the      entitled even to nominal damages. Id. at 566–67. In certain
verdict only if the evidence that supports the jury finding is    circumstances, evidence that supports a particular damage
so weak as to be clearly wrong and manifestly unjust. See         amount may be factually insufficient to support even a
Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may              jury award that is smaller than the evidence would support.
not reverse merely because we conclude that the evidence          Keilman, 851 S.W.2d at 930. In Keilman, which concerned
preponderates toward a different answer. See Herbert v.           whether a bank charged unauthorized interest, the parties
Herbert, 754 S.W.2d 141, 144 (Tex.1988).                          presented competing calculations; the bank contended that
                                                                  it had charged $169.92 in authorized interest, and the
                                                                  plaintiff contended that the bank had charged $7161.44 in
Coverage A Dwelling coverage                                      unauthorized interest. Id. The jury found that the bank had
State Farm attacks the jury's $1000 damage award for breach       charged $360 in unauthorized interest. Although the $360
of its Coverage A obligations on two fronts. It argues that no    award was within the range between the competing interest
evidence supports the $1000 award. State Farm also argues         figures, the evidence was factually insufficient to support the
that the court erred by granting the McMillins' motion for        award because there was inadequate support for a theory that
summary judgment that the policy covered water damage that        would have resulted in a $360 figure. The evidence supported
causes an ensuing loss by mold.                                   a choice of one figure or the other, not a verdict somewhere
                                                                  in the range between them. Id.

Damage award
                                                                On the other hand, where there is proof to support a range
 [38] State Farm contends that the McMillins produced
                                                                of damage options, the mere fact that nothing in the record
no evidence of damages from sources other than mold in
                                                                shows how the jury arrived at a specific amount is not fatal
excess of the amount State Farm already paid. It contends
                                                                to the verdict. Mayberry v. Texas Dep't of Agric., 948 S.W.2d
that the only source of a $1000 figure in the record is
                                                                312, 317 (Tex.App.-Austin 1997, writ denied). In Mayberry,
Mr. McMillin's statement that he believed he was charged
                                                                we concluded that some evidence supported a jury verdict
the $1000 deductible twice; State Farm contends that his
                                                                for back pay because the theory of the case provided for a
statement is not evidence of a double-charge. The McMillins
                                                                range of possible damage awards (rather than a binary choice
contend that ample evidence supports at least a $1000 award.
                                                                between two amounts) depending on when the jury concluded
                                                                the plaintiff should have been promoted, and because the
 [39] [40] [41] Juries have broad discretion in assessing
                                                                verdict was within the narrow range defined by competing
damages where the law provides no precise legal measure;
                                                                extremes posited by the parties. See id. (award of $1206 fell
a jury's findings will not be disregarded merely because its
                                                                between $1028 and $1292).
reasoning in arriving at its figures may be unclear so long
as a rational basis for its *202 calculation exists. Swank v.
                                                                The McMillins produced evidence of up to $242,382.95 in
Sverdlin, 121 S.W.3d 785, 799 (Tex.App.-Houston [1st Dist.]
                                                                damages. Mr. McMillin testified that State Farm set the
2003, pet. denied); First State Bank v. Keilman, 851 S.W.2d
914, 930 (Tex.App.-Austin 1993, writ denied). However,          replacement value of the house at over $540,000, 17 and that
damages cannot be based on mere speculation and hypothesis.     the house was a total loss. The McMillins' public adjuster, Jim
See Formosa Plastics Corp. USA v. Presidio Engineers &          Beneke, estimated that repairs would cost $510,042.09; this
Contractors, Inc., 960 S.W.2d 41, 49–50 (Tex.1998). This        total includes his estimate of $334,956.12 for building repairs
limitation is expressed through a variety of legal requirements and the mold remediators' estimate of $175,085.97. Beneke
governing proof of damages.                                     opined that there could be additional costs due to inflation and
                                                                overruns.
Jury awards must be supported by evidence of the value of
the property damaged or that must be replaced. Gulf States        But State Farm argues that there is no evidence to support
Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex.2002). The             the $1000 award because there is no rational basis for it.
jury in Low found that Gulf States wrongfully terminated          State Farm rejects Mr. McMillin's statement that he believed
the plaintiff's electric service and awarded, among other         State Farm charged the $1000 deductible twice—unsupported
damages, $100 for spoiled food. Id. at 563. But, because           *203 by any documentation—arguing that it is at best



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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)



speculation and no evidence that State Farm did so. 18 See         a damage award that improperly commingles valid and
Keilman, 851 S.W.2d at 930. Although the repair estimates          invalid theories of recovery, an appellant must object to
provide a cumulative demand that could support a range of          the submission of a question to the jury that permits such
higher damage amounts, the McMillins point to no discrete          commingling. See id. at 387–88. We find no objection to
item that supports a $1000 award. Nor do they point to             the submission of this question or to its subsuming of
any basis on which the jury might have relied in drastically       questions concerning mold-related expenses and non-mold-
reducing the McMillins' estimated total repair costs.              related expenses into a single question. Thus, State Farm
                                                                   cannot complain on appeal of harm by asserting that the award
We conclude, however, that we cannot say that the record           included mold-related expenses unless there was no evidence
contains no evidence to support a $1000 award. This is             to support a finding of $1000 in non-mold-related expenses.
not like Keilman in which the jury had to choose between
competing theories on how interest should be calculated. Id.       The record contains evidence of at least $1000 in covered,
Nor is it like Low, in which the plaintiff presented no evidence   non-mold-related expenses *204 remained unpaid. State
of the cost of his spoiled food. See 79 S.W.3d at 566. The         Farm paid $346,875.62 on the McMillins' claim. One
repair estimates provided were not based on a mathematical         remediation contractor testified that at least $50,000–$60,000
formula; indeed, Beneke testified that actual costs could vary.    of the amount State Farm paid was for mold containment;
Rather than a binary choice or a series of binary choices,         another contractor put that figure at $52,000. This provides
this evidence presented the jury with a range of possible          some evidence that State Farm paid $296,875.62 to repair
awards. That they chose a round figure near the low end of the     non-mold damage. Using Beneke's estimate that non-mold
range does not invalidate the award. See City of Houston v.        repairs would cost $334,956.12, there is some evidence that
Harris County Outdoor Advertising Ass'n, 879 S.W.2d 322,           $38,080.50 in non-mold related damage claims (the non-mold
334 (Tex.App.-Houston [14th Dist.] 1994, writ denied); see         portion of Beneke's estimate less the non-mold amounts paid
also Neiman-Marcus Group, Inc. v. Dworkin, 919 F.2d 368,           by State Farm) remained unpaid; 19 that exceeds the $1000
374 (5th Cir.1990); Insurance Co. of North Am. v. Cangelosi,       award.
217 S.W.2d 888, 890 (Tex.Civ.App.-Waco 1949, no writ).
Legally sufficient evidence supports the jury's finding. We        Because State Farm failed to object to the submission of
overrule State Farm's first issue.                                 the damage question on grounds that it subsumed both
                                                                   covered expenses and non-covered expenses, and because
                                                                   the record contains evidence of sufficient covered unpaid
Mold coverage                                                      non-mold-related expenses, it cannot show harm from the
 [42] State Farm contends that the award for breach-of-            grant of the McMillins' motion for summary judgment that
contract damages was erroneous because the district court          the policy also covered mold expenses. Because State Farm
erred by granting summary judgment that the policy provides        cannot show harm from the summary judgment, we decline
mold coverage either directly or through an ensuing-loss           to address whether the summary judgment was erroneous
provision. State Farm argues that the court should have            because resolution of this issue is not necessary to our
granted its competing motion for a summary judgment                disposition of this appeal. See Tex.R.App. P. 47.1. Sufficient
declaring that the policy did not cover mold. We need              evidence of unpaid, non-mold-related expenses supports the
not explore the merits of this issue, however, because its         $1000 award. We overrule State Farm's second issue.
resolution will not alter the judgment.

 [43] Even if the summary judgment is erroneous, State Farm        Additional living expenses
would have to show that the error was harmful in order to           [44] The McMillins challenge the jury's finding that they
merit reversal of the judgment. See Tex.R.App. P. 44.1(a).         were entitled to zero additional living expenses for their
Any error in granting the summary judgment was harmful             loss of the use of their home. The McMillins claim that
only if the jury's $1000 award for Coverage A Dwelling             they proved $34,800 in additional living expenses incurred
coverage included mold-related expenses. Cf. Crown Life Ins.       in purchasing a second home on Woodmont Avenue; these
Co. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000) (commingling         expenses cover the period from the purchase in June 2001
valid and invalid theories is harmful even if evidence supports    until they became “settled” in February 2002. They request
jury award solely on valid theory). But to complain of             that the judgment be modified to include compensation for



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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


eight months' worth of mortgage interest ($2750 per month),
taxes ($1300 monthly), and insurance ($300 monthly).               The McMillins' policy does not set out explicitly what
                                                                   additional living expenses it covers. The policy provides as
State Farm defends the jury's findings, arguing that the policy    follows:
does not cover costs associated with purchasing a new home
and that the evidence supports a finding that this increase                    additional living expense, meaning
in the McMillins' living expenses was not necessary and                        any necessary and reasonable increase
reasonable. State Farm argues that, while expenses related                     in living expense you incur so that your
to a rental property would be covered, mortgage, taxes, and                    household can maintain its normal
insurance are not.                                                             standard of living.... Payment will
                                                                               be for the reasonable time required
 [45]      [46]    [47]     [48]     [49] The construction of      an          to repair or replace the damaged
unambiguous contract is a question of law for the court.                       property. If you permanently relocate,
Buys v. Buys, 924 S.W.2d 369, 372 (Tex.1996). Whether                          payment will be for the reasonable
a contract is ambiguous is a question of law for the court                     time required for your household to
to decide by examining the contract as a whole in light of                     become settled.
the circumstances present when the contract was entered.
                                                                   The McMillins argue that the meaning of “become settled”
Columbia Gas Transmission Corp. v. New Ulm Gas., Ltd.,
                                                                   is a question of contract interpretation for the court. They
940 S.W.2d 587, 589 (Tex.1996). A contract is unambiguous
                                                                   advocate using the definition “begin to feel comfortable
if it can be given a definite or certain legal meaning. Id.; see
                                                                   or established in a new home,” citing The New Oxford
also Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d
                                                                   American Dictionary 1560 (2001).
857, 861 (Tex.2000). An ambiguity does not arise simply
because the parties advance conflicting interpretations of the
                                                              Even accepting the McMillins' definition, the policy covers
policy, particularly if one of the conflicting interpretations
                                                              only reasonable and necessary expenses incurred during the
is unreasonable. Lopez, 22 S.W.3d at 861; *205 Columbia
                                                              reasonable time for the insured to become settled. Whether
Gas, 940 S.W.2d at 589. But if the insurance policy is subject
                                                              conduct is reasonable is ordinarily a question of fact. Adam
to one or more reasonable interpretations, it is ambiguous.
                                                              Dante Corp. v. Sharpe, 483 S.W.2d 452, 456 (Tex.1972). The
National Union Fire Ins. Co. v. Hudson Energy Co., 811
                                                              question of reasonableness is one peculiarly tailored to the
S.W.2d 552, 555 (Tex.1991).
                                                              province of the jury. Tri–State Wholesale Assoc. Grocers, Inc.
                                                              v. Barrera, 917 S.W.2d 391, 397 (Tex.App.-El Paso 1996,
 [50] [51] [52] The general rules of contract construction
                                                              writ dism'd by agr.); see also Universe Life Ins. Co. v. Giles,
govern interpretation of an insurance policy. Id.; Texas
                                                              950 S.W.2d 48, 55 (Tex.1997). Here, the coverage decision
Farmers Ins. Co. v. Murphy, 996 S.W.2d 873, 879
                                                              depends on the reasonableness of the insured's conduct in
(Tex.1999). We assume the parties to a contract intended
                                                              incurring expenses and becoming settled. Accordingly, we
every clause to have some effect; we cannot strike down
                                                              must examine the record for evidence supporting the jury's
any portion of a contract absent irreconcilable conflict. See
                                                              finding that the McMillins proved no reasonable additional
Edlund v. Bounds, 842 S.W.2d 719, 726 (Tex.App.-Dallas
                                                              living expenses.
1992, writ denied). Although we give words their plain,
common, or generally accepted meaning, we may resort
                                                              The parties disagreed strongly over the length of the
to extrinsic sources to determine if a term has a generally
                                                              reasonable period to become settled. Although the McMillins
understood meaning peculiar to the specialized industry.
                                                              hoped for several months to repair the Murray house, they
Mescalero Energy, Inc. v. Underwriters Indem. Gen. Agency,
                                                              abandoned that hope and bought the Woodmont house
Inc., 56 S.W.3d 313, 320 (Tex.App.-Houston [1st Dist.] 2001,
                                                              intending to permanently relocate there. But they contend
pet. denied). When ambiguous insurance policy terms permit
                                                              that they did not become settled in the Woodmont house for
more than one interpretation, we construe the policy against
                                                              eight months after purchasing it and moving in. They contend
the insurer. State Farm Fire & Cas. Co. v. Vaughan, 968
                                                              that, during this adjustment period, their mortgage interest,
S.W.2d 931, 933 (Tex.1998). This is so especially when the
                                                              insurance, and taxes for those months were reasonable and
policy terms exclude or limit coverage. National Union, 811
                                                              necessary expenses above their normal living costs that were
S.W.2d at 555.
                                                              incurred because of their property loss. By contrast, State


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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


Farm claim adjuster Lisa Webb testified that, generally,          been “actually paid” $990.13 because there is no evidence
“settled” means *206 “moved in.” Tom Veitch, an attorney          that they received the check. State Farm would be entitled
with experience in the insurance field, testified that becoming   to a rebuttable presumption that the McMillins received the
settled under the policy takes about two days after moving in,    mailed check if it had introduced evidence that the letter
during which time the policy would cover expenses such as         was properly addressed, stamped, and mailed. Southland Life
restaurant expenses and utility connection fees; the McMillins    Ins. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 857
do not seek to recover these type of expenses.                    (App.1942). Webb's testimony on the mailing issue was as
                                                                  follows:
This record supports the jury's finding that the McMillins
did not prove themselves entitled to recover their mortgage         Q. And did you put a check in the mail for $990.13?
interest, insurance, and tax expenses as additional living
                                                                    A. Yes.
expenses under the policy's loss-of-use provision. The jury
was entitled to determine that the “reasonable time” during       There is no evidence that the letter had the proper address
which the policy provided such coverage was two days or           or postage; therefore, State Farm is not entitled to any
less. The record also supports a factual determination that       presumption that the McMillins received the check. Further,
the expenses associated with the purchase of the Woodmont         there is no evidence that the money owed has been transferred
house for permanent relocation were not increases in living       from State Farm to the homeowners. State Farm argues that
expenses during those two days or less, but were expenses         the jury could infer from the homeowners' previous 10–month
dedicated to the acquisition, protection, and retention of an     retention of the $344,367.27 check that the homeowners are
asset for the long-term. The record legally and factually         similarly retaining the $990.13 check. But that requires piling
supports the zero damages finding on this issue.                  an inference that the homeowners received the check upon an
                                                                  inference that they *207 chose not to cash it. “[A] vital fact
                                                                  may not be established by piling inference upon inference....”
Expenses to prevent further damage
                                                                  Schlumberger Well Surveying Corp. v. Nortex Oil & Gas
 [53] The McMillins challenge the jury's finding that they
                                                                  Corp., 435 S.W.2d 854, 858 (Tex.1968) (cited by Greenberg
were entitled to zero reasonable and necessary expenses
                                                                  Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 79
incurred seeking to prevent further damage to the home.
                                                                  (Tex.App.-Houston [14th Dist.] 2004, no pet.)). This double
McMillin testified that he submitted a claim for $990.13 for
                                                                  inference is too tenuous to show payment of the amounts
covering the roof with a tarp, but had not received a check
                                                                  due in the absence of any evidence or presumption that the
for that amount. State Farm claim adjuster Lisa Webb agreed
                                                                  homeowners received the check. No evidence supports the
that the McMillins had submitted a receipt for and were
                                                                  jury's finding that State Farm did not, at time of trial, owe
entitled to $990.13 for such expenses; she testified that she
                                                                  the homeowners for expenses incurred attempting to prevent
had issued a check for that amount and that the check had
                                                                  further damage to the home.
not been cashed. Webb also testified that the McMillins held
onto their $344,367.27 repair check from when it was issued
                                                                   [55] [56] Instead, conclusive evidence shows that State
August 7, 2001 until they cashed it in June 2002. The court
                                                                  Farm owes the homeowners $990.13 for such expenses.
asked the jury for “[t]he amount that should have been paid
                                                                  Undisputed evidence contrary to a verdict may be conclusive
minus the amount actually paid for reasonable and necessary
                                                                  when a party admits it is true. City of Keller, 168 S.W.3d 802,
expenses incurred in attempting to prevent further damage to
                                                                  815 . State Farm admitted that it owed the McMillins $990.13,
the home.” (Emphasis added.) The jury found that State Farm
                                                                  that it mailed them a check for that amount, and that the check
owed nothing.
                                                                  was not cashed. The only evidence is that the McMillins did
                                                                  not receive the check. There is no evidence that any part
 [54] We conclude that no evidence supports the take-
                                                                  of the $990.13 has been in any other way transferred from
nothing finding. State Farm agreed that the homeowners
                                                                  State Farm to the McMillins. “When evidence contrary to a
incurred $990.13 for the tarp expenses and that the expenses
                                                                  verdict is conclusive, it cannot be disregarded.” Id. at 817. The
were covered by the policy; thus, $990.13 is an “amount that
                                                                  uncontroverted evidence established as a matter of law that
should have been paid.” The jury's zero finding is supported
                                                                  State Farm's admitted debt of $990.13 for expenses incurred
only if that amount is fully offset by “the amount actually
                                                                  to prevent future damage remains unpaid. Accordingly, we
paid.” Accepting Webb's testimony that State Farm sent the
                                                                  will render judgment for the McMillins in that amount. See
check, there is still no evidence that the homeowners have


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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


Ragsdale, 801 S.W.2d at 882; see also Brown, 963 S.W.2d            See Tex. Gov't Code Ann. §§ 311.011, 311.021, 311.023 &
at 515.                                                            312.005 (West 2005); Kroger Co. v. Keng, 23 S.W.3d 347,
                                                                   349 (Tex.2000). We ascertain the legislature's intent in the
                                                                   plain and common meaning of the words used. Tex. Gov't
Interest penalties under Article 21.55                             Code Ann. § 311.011; Keng, 23 S.W.3d at 349. We must
 [57]    The parties present cross-issues relating to the          presume that every word of the legislation has meaning. See
assessment of an interest penalty of $425.59 on the $1000          Brooks v. Northglen Ass'n, 141 S.W.3d 158, 169 (Tex.2004);
damage award 20 under the insurance code's provisions              see also Tex. Gov't Code Ann. § 311.021(2).
intended to promote prompt payment of claims. Tex.
Ins.Code Ann. art. 21.55 (West Supp.2004–05). State Farm           The McMillins' arguments require either ignoring the plain
argues that the McMillins' failure to make a claim in writing      language and meaning of the statute or grafting meaning
makes the interest penalty of article 21.55 unavailable to         onto the statute. The statute requires compliance with its
them. The McMillins argue that the evidence conclusively           provisions to trigger the insurance penalties. See generally
supports a different answer to the question concerning the         Tex. Ins.Code Ann. art. 21.55. It does not require the insurer
date by which that State Farm received all necessary and           to inform the insured of the necessity of a writing to trigger
documentation relating to its Coverage A claim (the $1000          statutory penalties, nor does it contain a provision permitting
award), thus triggering an earlier accrual of an interest          actual notice to satisfy its provisions. Section 21.55 requires
penalty.                                                           a notification in writing of a claim “to” an insurer that is “by”
                                                                   a claimant. See id. § 1(5). One of our sister courts has held
The claim-handling periods of article 21.55 are triggered          that a claim form completed and signed by an insured together
by the insurance company's “receipt of notice of claim.”           with her insurance agent can satisfy the notice requirement.
Id. § 2(a). The code defines a “notice of claim” as “any           See Protective Life Ins. Co. v. Russell, 119 S.W.3d 274, 288
notification in writing to an insurer, by a claimant, that         (Tex.App.-Tyler 2003, pet. denied). In Russell, the claimant
reasonably apprises the insurer of the facts relating to the       participated in the preparation of a written claim and signed
claim.” Id. § 1(5). State Farm argues that the McMillins'          it. By contrast, the McMillins do not claim they sent written
telephonic report of their damages did not satisfy the statutory   notice to State Farm of their claim; instead, they rely on
requirement for written notice. See *208 Mid–Century Ins.          State Farm's printed telephone logs. Even reading the notice
Co. v. Barclay, 880 S.W.2d 807, 810 n. 3 (Tex.App.-Austin          requirement broadly, we conclude that State Farm's internal
1994, writ denied). State Farm argues that, because the report     telephone logs are not a notice of claim under the statute.
therefore did not trigger State Farm's statutory obligation to     Although State Farm's logs are in writing and memorialize a
resolve the complaint within the statutory periods, State Farm     notification by the claimant, they are written by the insurer
cannot be penalized for failing to do so.                          instead of being written by the claimant to the insurer as
                                                                   required, and they are not sent by the claimant to the insurer.
The McMillins respond that such a construction unfairly
diminishes the protections to insureds. They note that article     Because there is no evidence that the McMillins triggered
21.55 “shall be liberally construed to promote its underlying      the provisions of article 21.55 by providing notice in writing
purpose which is to obtain prompt payment of claims made           to State Farm of their claim, we sustain State Farm's third
pursuant to policies of insurance.” Id. § 8. They argue that       issue. Accordingly, the McMillins' complaint about the jury's
their telephonic report satisfied the purpose of the statute by    finding of a date that fixed when the article 21.55 interest
reasonably apprising State Farm of the basis of their claim,       penalties began to accrue is moot because no penalties will
and that State Farm never told them that their oral report of      accrue.
their problems constituted a waiver of statutory protections.
To the extent that a writing is required, they argue that State
Farm's telephone logs memorializing their telephonic notice        Attorney's fees
suffice.                                                           Challenging the jury's award of zero attorney's fees, the
                                                                   McMillins contend that they are entitled to attorney's fees
This issue turns on the meaning of the terms in the “notice of     based on the judgment that State Farm breached its contract
claim” provision. The primary rule of statutory construction       with the McMillins. See Tex. Civ. Prac. & Rem.Code Ann. §
is to ascertain and give effect to the legislature's intent.       38.001 (West 1997). They contend that the evidence *209
                                                                   proved as a matter of law they were entitled to a reasonable


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            21
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


attorney's fees of $300,000 for the trial, $35,000 for this       Worth 1998, pet. denied). The fact that a plaintiff makes
appeal, and $25,000 for any appeal to the supreme court.          a claim on an insurance policy does not automatically bar
                                                                  recovery of attorney's fees under section 38.001; instead,
State Farm defends the award of zero attorney's fees,             “in a policyholder's successful suit for breach of contract
contending that the McMillins are not entitled to attorney's      against an insurer that is subject to the provisions listed in
fees for several legal, equitable, and factual reasons. State     section 38.006, the insurer is liable for reasonable attorney's
Farm contends that the McMillins made an excessive presuit        fees incurred in pursuing the breach-of-contract action under
demand, that they did not prevail as required to recover          section 38.001 unless the insurer is liable for attorney's
attorney's fees under the insurance code, that their insurance-   fees under another statutory scheme.” Grapevine Excavation,
related claims do not entitle them to fees under the civil        Inc. v. Maryland Lloyds, 35 S.W.3d 1, 5 (Tex.2000). The
practice and remedies code, and that their claim for $300,000     McMillins are eligible to be awarded attorney's fees for
in attorney's fees based on a $1000 recovery is unreasonable.     prevailing on their breach-of-contract claim. See Tex. Civ.
                                                                  Prac. & Rem.Code Ann. § 38.001.
 [58] [59] The McMillins' claims are not barred by their
presuit demand for $950,000 in repairs and attorney's fees.        [63] Under some circumstances, an award of zero attorney's
If the claimant made an excessive presuit demand and would        fees to the prevailing party is proper. A zero award is
not take a lesser amount, the claimant is not entitled to         proper if the evidence (1) failed to prove *210 (a) that
attorney's fees expended in litigation thereafter; we note that   any attorney's services were provided, or (b) the value of
the doctrine does not bar recovery of attorney's fees expended    the services provided; or (2) affirmatively showed that no
before the excessive demand. Findlay v. Cave, 611 S.W.2d          attorney's services were needed or that any services provided
57, 58 (Tex.1981); Lairsen v. Slutzky, 80 S.W.3d 121, 131         were of no value. RCI, 154 S.W.3d at 891; Cale's Clean
(Tex.App.-Austin 2002, pet. denied). Excessive demand is an       Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 787 n. 4
affirmative defense to an award of attorney's fees and must be    (Tex.App.-Houston [14th Dist.] 2002, no pet.).
pleaded or tried by consent. Kurtz v. Kurtz, 158 S.W.3d 12, 21
(Tex.App.-Houston [14th Dist.] 2004, pet. filed). State Farm      [64]     [65]     [66]     [67]     [68] However, a jury cannot
notes that it was denied a jury question on the reasonableness   simply refuse to award attorney's fees if any were properly
of the presuit demand, but does not raise that as an issue on    proven. RCI, 154 S.W.3d at 891; Hubbard, 76 S.W.3d at
appeal. Instead, it points to the judgment as showing that the   787. Uncontroverted testimony by an interested witness may
demand was unreasonable. But the size of the verdict does        establish a right to attorney's fees as a matter of law. RCI, 154
not prove that the McMillins would not have taken a lesser       S.W.3d at 891; see Hubbard, 76 S.W.3d at 787. Testimony by
amount to settle the dispute, nor does it prove as a matter      an interested witness establishes a fact as a matter of law if: (1)
of law that the McMillins' demand was unreasonable. See          the testimony could be readily contradicted if untrue; (2) it is
Findlay, 611 S.W.2d at 58.                                       clear, direct, and positive; and (3) there are no circumstances
                                                                 tending to discredit or impeach it. Lofton v. Texas Brine
 [60] State Farm correctly argues that the McMillins are not Corp., 777 S.W.2d 384, 386 (Tex.1989). Where trial counsel's
entitled to attorney's fees under the insurance code. They       testimony concerning attorney's fees is clear, positive and
did not prevail at trial on their article 21.21 claims of false, direct, and uncontroverted, it is taken as true as a matter of
misleading, deceptive or unconscionable actions or practices.    law, especially true when the opposing party had the means
See Tex. Ins.Code Ann. art. 21.21 (West Supp.2004–05). We        and opportunity to disprove the testimony and failed to do
have just determined that they are not entitled to recover       so. See Ragsdale v. Progressive Voters League, 801 S.W.2d
interest penalties under article 21.55.                          880, 882 (Tex.1990); see also Tex. Civ. Prac. & Rem.Code
                                                                 Ann. § 38.003 (West 1997) (rebuttable presumption that
 [61] [62] But they did prevail in their breach-of-contract usual and customary attorney's fees are reasonable); World
claim and are entitled to an award of reasonable attorney's      Help, 977 S.W.2d at 684. In such instances, appellate courts
fees established by the evidence. See Tex. Civ. Prac. &          will reverse a denial or minimization of attorney's fees and
Rem.Code Ann. § 38.001(8); Recognition Communications,           render judgment for attorney's fees in the amount proved.
Inc. v. American Auto. Ass'n, Inc., 154 S.W.3d 878, 891          See Ragsdale, 801 S.W.2d at 882 (on injunction and $1
(Tex.App.-Dallas 2005, pet. filed) (“RCI ”); World Help v.       damage case, reversing $150 award attorney's fees award and
Leisure Lifestyles, Inc., 977 S.W.2d 662, 683 (Tex.App.-Fort     rendering $22,500 judgment for attorney's fees); RCI, 154



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McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


                                                                       attorney's fees, but McKetta's testimony was that up to
S.W.3d at 891 (on $10,000 damage award, reversing jury's
                                                                       $300,000 could be reasonable; that is far from conclusive. Nor
zero damage award and rendering $75,764 award); see also
                                                                       is the evidence clear that they are entitled to the full $150,000
Hubbard, 76 S.W.3d at 786–88 (on $31,846 damage award
                                                                       that McKetta testified he believed was reasonable; although
affirming trial court's award of $29,225 in attorney's fees
                                                                       the McMillins prevailed on some causes of action, they did
notwithstanding jury's zero award).
                                                                       not prevail on every claim and did not show as a matter of
                                                                       law that the entire amount was reasonable and necessary to
There was competing evidence regarding the amount of fees
                                                                       recover on the claims on which they did prevail. Therefore,
that would be reasonable and necessary in pursuing the
                                                                       we will not render judgment in their favor, but will remand the
McMillins' suit. The McMillins introduced evidence from
                                                                       issue of attorney's fees on the Coverage A Dwelling coverage
their attorney, Jack Maroney, about the attorney's fees and
                                                                       claim for further proceedings.
costs he considered reasonable and necessary. He discussed
taking more than thirty depositions, attending more than
                                                                       We will also remand for a determination of what attorney's
twenty pretrial hearings, sending more than 350 pieces of
                                                                       fees are reasonable and necessary with respect to the damage-
correspondence, and reading many pieces of correspondence
                                                                       prevention expenses—a theory on which the jury did not
in return. He stated that they had billed $557,000 in fees and
                                                                       award damages and on which it therefore did not consider
expended $50,000 in court costs. He estimated $35,000 would
                                                                       awarding attorney's fees. See Pelto Oil Corp. v. CSX Oil
be expended in attorney's fees for this appeal and an additional
                                                                       & Gas Corp., 804 S.W.2d 583, 588 (Tex.App.-Houston
$25,000 for proceedings at the supreme court. State Farm's
                                                                       [1st Dist.] 1991, writ denied) (remanding only issue of
expert witness, Mike McKetta, testified that this case could
                                                                       attorney's fees after rendering judgment on appeal); cf. Coffel
and reasonably should have been handled through trial for
                                                                       v. Stryker Corp., 284 F.3d 625, 641 (5th Cir.2002) (reversing
$150,000, though the fee could reasonably be as much as
                                                                       for consideration of additional attorney's fees based on
double that; he said that he would consider any amount over
                                                                       additional recovery under revised judgment). We cannot
$300,000 to be “outside of any range of reasonableness.” He
                                                                       render judgment for these attorney's fees because the evidence
testified that the greater the amount in controversy, the greater
                                                                       is not conclusive as to what part of the overall claim for
the expenditure might be reasonable; if a dispute were over
                                                                       attorney's fees is attributable to this claim or what fee is
$20,000, he would not usually find reasonable an expenditure
                                                                       reasonable and necessary to prepare and try this claim. See
of 5, 10, or 20 times more than that to recover that amount.
                                                                       Ragsdale, 801 S.W.2d at 882.
No evidence supports the jury's award of zero attorney's fees
for preparation and trial of this case. The only evidence is
that at least $150,000—and perhaps as much as $300,000—                                        CONCLUSION
was reasonable and necessary for preparation and trial of the
entire case. There was no dispute regarding the appellate fees.        We reverse the award of interest penalties under insurance
Because we find the evidence legally insufficient to support           code article 21.55 and render judgment that the McMillins
 *211 the zero attorney's fees award, we need not consider             take nothing by that claim. We reverse the judgment that
the factual sufficiency of the evidence. See Glover v. Tex.            the McMillins take nothing by their claim for expenses
Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); Exxon                 incurred to prevent further damage to the property, and render
Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-                judgment that they take $990.13 on that claim. We reverse the
Dallas 2002, pet. denied). Thus, we will reverse the award of          award of zero attorney's fees and remand for consideration
no attorney's fees.                                                    of what amount of attorney's fees, if any, the McMillins are
                                                                       entitled to for preparation and trial and appeal of the claims
But the record does not conclusively prove any particular              which entitle them to attorney's fees. We otherwise affirm the
amount that was a reasonable and necessary amount of                   judgment.
attorney's fees. For example, the McMillins contend that
the experts' testimony shows them entitled to $300,000 in


Footnotes
1       In their briefing, Mr. McMillin and Ms. Furse refer to themselves collectively as the “McMillins,” and we do the same.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                23
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


2     The McMillins also complained in their initial brief about a seventh juror, veniremember 34, but subsequently waived this complaint
      in response to the supreme court's opinion in Cortez v. HCCI–San Antonio, Inc., 159 S.W.3d 87, 90–91 (Tex.2005), discussed above.
3     Conversely, if the party, after expending a peremptory challenge on a veniremember it had unsuccessfully challenged for cause, had
      a sufficient number of peremptory challenges remaining to strike all other veniremembers it found objectionable, it would not have
      been harmed by any error in the trial court's denial of its challenge for cause.
4     As the supreme court explained in Hallett:
            The refusal of the trial court to excuse an unqualified juror does not necessarily constitute harmful error. The harm occurs only if
            the party uses all his peremptory challenges and is thus prevented from striking other objectionable jurors from the list because
            he has no additional peremptory challenges. It is at this point that any harmful error occurs, i.e., when the court is made aware
            that objectionable jurors will be chosen. Thus, it is incumbent upon the complaining party to inform the trial court at the time
            of the error. Once informed, the court is able to determine if the party was in fact forced to take objectionable jurors.
         Id. at 889–90.
5     See Tex.R. Civ. P. 233.
6     We recognize that this conclusion may present difficult choices for trial attorneys, who must elect between using a peremptory
      challenge to preserve error on a challenge for cause versus using it to strike another veniremember whom the attorney may find even
      more objectionable. However, we are bound to follow Cortez. We also note that trial attorneys frequently face such strategic trade-
      offs between error preservation and the more immediate goal of winning at trial. See generally Jack Ratliff, et. al, Texas Courts:
      Trial & Appeal 1–3 (9th ed.2003–04) (describing how “the advocate in a jury trial must cultivate a split personality,” simultaneously
      pursuing the sometimes contradictory goals of obtaining a favorable verdict while protecting the record, and that “[s]o it is that the
      best advocates, who know how to preserve error, sometimes decide not to do it.”).
7     The McMillins used three peremptory challenges on veniremembers 15, 22, and 37, who they had challenged for cause at trial but do
      not challenge on appeal. At that juncture, the McMillins had remaining only three peremptory challenges to use in curing any error
      regarding the six veniremembers they now challenge on appeal.
8     As Cortez indicates, “objectionable” jurors remaining after peremptory strikes are exhausted may include both those previously
      challenged for cause and those desired to be stricken for other reasons. Id. at 91 (explaining that party need not explain why it found
      each identified veniremember objectionable).
9     We also disagree with State Farm's depiction that the McMillins' counsel “merely listed the juror numbers of thirteen venire members
      they had already unsuccessfully challenged for cause, and then challenged them again.”
10    On the record before us, we cannot correlate the McMillins' waivers of three challenges for cause to any three specific veniremembers.
11    In the wake of Cortez, 159 S.W.3d at 91–94, the McMillins have abandoned their original complaint that the trial court erred by
      accepting rehabilitation testimony.
12    To assess the court's exercise of discretion, we have reviewed statements made at jury selection. The following summaries come
      from both the general section of the voir dire examination during which questions were posed to and answered by the entire venire,
      and the colloquies with individual veniremembers that were conducted thereafter.
13    Johnson, moreover, had been offered legal services by State Farm in connection with a wreck involving his son.
14    Stone also said he thought he had State Farm insurance, but that policy would not affect his deliberations. The McMillins waived
      this ground by not asserting it to the trial court. See Tex.R.App. P. 33.1(a).
15    State Farm subsequently disputed whether the court's order compelled it to produce a representative most knowledgeable regarding
      the guidelines, contending that it was merely required to produce a representative with some knowledge of the guidelines. The district
      court rejected State Farm's interpretation of the order.
16    This explanatory note is available on the Texas Supreme Court's website at http://
      www.supreme.courts.state.tx.us/rules/tdr/fr
      111098.htm.
17    McMillin testified that State Farm valued the house at $540,750 for replacement purposes. He testified that, “even with the house in
      the state it was” after the discovery of mold, State Farm raised the value to $561,000.
18    When testifying about amounts he believed State Farm owed under the policy, McMillin testified that “although I know Mr. Nolan
      had done a figure on the—where the deductible, I still don't under—it still seems to me that he took a second deductible out of my
      —so I added in the $1000 deductible that they took out, the second deductible.”
19    The fact that the remediation contractors' estimates of how much of State Farm's payments paid for mold-related costs were minimum
      estimates does not undercut this analysis; if the portion of State Farm's payments that went to mold-related costs was higher, then
      even more of the McMillins' non-mold-related claim remains unpaid. For example, if $100,000 of State Farm's payment went to
      mold-remediation costs, then only $248,875.62 of their non-mold claims were paid, leaving $88,080.50 unpaid.
20    We will not consider whether 21.55 penalties are available for the other damage awards.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         24
McMillin v. State Farm Lloyds, 180 S.W.3d 183 (2005)


         Although we will render judgment that the McMillins are entitled to $990.13 for expenses incurred to prevent further damage,
         the date by which State Farm received all documents relating to the Coverage A claim is not relevant to the $990.13 recovery;
         the jury was not asked to find the date by which State Farm received all documents relating to their claim for damage-prevention
         expenses, and the McMillins do not complain about the absence of such a question or finding. The jury was asked about the date
         by which State Farm received all documents necessary to resolution of the loss-of-use claim, but found “no date.” That is not
         challenged on appeal.
         Our affirmance of the zero damages finding concerning additional living expenses also moots reconsideration of the zero interest
         award on that element of damages.


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  25
Nelson v. City of Dallas, 278 S.W.3d 90 (2009)




                     278 S.W.3d 90                                 West Headnotes (10)
                Court of Appeals of Texas,
                          Dallas.
                                                                   [1]   Administrative Law and Procedure
          Jeffrey NELSON, Alfred P. Schoelen,                               Primary Jurisdiction
          Jr., and Timothy Stecker, Appellants,                          Doctrine of primary jurisdiction allocates power
                           v.                                            between courts and agencies when both have
                CITY OF DALLAS and Chief                                 authority to make initial determinations in a
                 David Kunkle, Appellees.                                dispute; trial courts should defer to appropriate
                                                                         administrative agencies when (1) the agency is
      No. 05–08–00335–CV. | Feb. 4, 2009.                                staffed with experts trained in handling complex
       | Rehearing Overruled March 17, 2009.                             problems within the agency's purview, and
                                                                         (2) great benefit is derived from the agency's
Synopsis                                                                 uniform interpretation of laws within its purview
Background: Two police officers brought action against                   and the agency's rules and regulations when
their employing city and its police chief, alleging they were            courts and juries might reach differing results
taking disciplinary action against them which arose from                 under similar fact situations.
investigations conducted in violation the Texas Government
Code that governed complaints against law enforcement                    Cases that cite this headnote
officers. The officers sought injunctive relief stopping
disciplinary proceeding and investigations, and declaratory
                                                                   [2]   Administrative Law and Procedure
judgment construing statutory provisions, and mandamus
                                                                            Primary Jurisdiction
ordering chief to comply with law and to cease violation of
Government Code. The 44th Judicial District Court, Dallas                Under the exclusive jurisdiction doctrine, the
County, Carlos Cortez, J., granted plea to the jurisdiction and          legislature is considered to have granted an
abated the suit. Officers appealed.                                      administrative agency the sole authority to
                                                                         make an initial determination in a dispute;
                                                                         an agency has exclusive jurisdiction when
                                                                         a pervasive regulatory scheme indicates the
Holdings: The Court of Appeals, Moseley, J., held that:                  legislature intended the regulatory process to be
                                                                         the exclusive means of remedying the problem
[1] city had primary jurisdiction over the discipline of its             to which the regulation is addressed, and thus,
police officers;                                                         whether an agency has exclusive jurisdiction
                                                                         depends on statutory interpretation.
[2] exception to exhaustion of remedies requirement of
irreparable injury did not apply to police officers;                     1 Cases that cite this headnote

[3] exception to exhaustion of remedies requirement that
                                                                   [3]   Administrative Law and Procedure
opposing parties violated and continued to violate due course
                                                                            Exhaustion of Administrative Remedies
of law rights did not apply to police officers; and
                                                                         If the administrative agency has either primary
                                                                         jurisdiction or exclusive jurisdiction, the
[4] Government Code provisions were not statutory
                                                                         trial court should await the exhaustion of
prerequisites to jurisdiction or authority of city to discipline
                                                                         administrative remedies before proceeding, if at
its officers.
                                                                         all.

                                                                         Cases that cite this headnote
Affirmed.

                                                                   [4]   Municipal Corporations



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


             Local Legislation
                                                                     Cases that cite this headnote
        Home-rule cities have broad discretionary
        powers, provided that no ordinance shall contain
        any provision inconsistent with the Constitution       [7]   Municipal Corporations
        of the state, or of the general laws enacted by                 Review in General
        the legislature; they possess the full power of self         Exception to exhaustion of remedies
        government and look to the legislature not for               requirement, that opposing parties had violated
        grants of power, but only for limitations on their           and continued to violate due course of law
        power. Vernon's Ann.Texas Const. Art. 11, § 5.               rights under state constitution, did not apply to
                                                                     police officers who sued city and police chief,
        1 Cases that cite this headnote
                                                                     alleging that disciplinary action against them
                                                                     was in violation of Texas Government Code that
 [5]    Municipal Corporations                                       governed complaints against law enforcement
           Review in General                                         officers; it was, in fact, the officers themselves
        City had primary jurisdiction over the discipline            who were attempting to avoid the very process
        of its police officers under the city charter                due in circumstances, administrative review of
        and ordinances, and officers who sued their                  employee discipline under city's charter and
        employing city and its police chief, alleging                ordinances, followed by judicial review in court
        they were taking disciplinary action against them            if necessary. Vernon's Ann.Texas Const. Art. 1,
        which arose from one or more investigations                  § 19; V.T.C.A., Government Code §§ 614.022,
        conducted in violation of Texas Government                   614.023.
        Code that governed complaints against law
                                                                     1 Cases that cite this headnote
        enforcement officers, would be required to
        exhaust administrative remedies before going to
        court, a conclusion unaffected by the officers'        [8]   Municipal Corporations
        other claims for declaratory, injunctive, and                   Review in General
        mandamus relief. V.T.C.A., Government Code                   Police officers' allegations, in their suit against
        §§ 614.022, 614.023.                                         city and its police chief alleging disciplinary
                                                                     action against them was in violation of Texas
        Cases that cite this headnote
                                                                     Government Code that governed complaints
                                                                     against law enforcement officers, did not
 [6]    Municipal Corporations                                       rise to the level of constitutional due course
           Review in General                                         of law violations warranting an exception
        Exception to exhaustion of remedies                          to the exhaustion of administrative remedies
        requirement, of irreparable injury if required to            requirement. Vernon's Ann.Texas Const. Art. 1,
        exhaust administrative remedies, did not apply               § 19; V.T.C.A., Government Code §§ 614.022,
        to police officers who sued city and police chief,           614.023.
        alleging that disciplinary action against them
                                                                     Cases that cite this headnote
        was in violation of Texas Government Code that
        governed complaints against law enforcement
        officers; injury claimed was damage to their           [9]   Municipal Corporations
        reputations and loss of future income, which                    Review in General
        could be compensated by money damages,                       Determination of whether city and police chief
        moreover, those damages would result from                    had or would violate Texas Government Code
        discipline, if any, imposed by city, and not                 that governed complaints against police officers,
        from the administrative process itself. V.T.C.A.,            by considering an anonymous letter, was not
        Government Code §§ 614.022, 614.023.                         purely a question of law which was outside
                                                                     requirement of exhaustion of administrative



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Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


        remedies, in officers' action for injunctive          The dispositive issue in this appeal is whether the City of
        relief to stop disciplinary proceeding and a          Dallas has primary jurisdiction or exclusive jurisdiction over
        declaratory judgment construing Code; city and        the initial determination of disciplinary issues concerning its
        chief disputed officers' contention about letter,     police officers. Because we conclude it does, we affirm the
        and argued their investigation was based on           trial court's order granting the plea to the jurisdiction and
        signed complaint detailing specific allegations       abating the suit.
        against officers. V.T.C.A., Government Code §§
        614.022, 614.023.

        Cases that cite this headnote                                              I. BACKGROUND

                                                              Appellants, Dallas police officers Jeffrey Nelson, Alfred P.
 [10]   Municipal Corporations                                Schoelen, Jr., and Timothy Stecker (“the officers”), sued
           Charges                                            the City of Dallas and its police chief, David Kunkle
        Municipal Corporations                                (collectively, “appellees”). The officers alleged appellees
           Review in General                                  were in the process of taking disciplinary action against
                                                              them and the impending disciplinary actions arose from
        Texas Government Code provisions governing
                                                              one or more investigations that were conducted by the
        complaints against law enforcement officers
                                                              police department in violation of certain provisions in the
        were not statutory prerequisites to the
                                                              Texas Government Code that govern complaints against law
        jurisdiction or authority of the city to discipline
        its officers, although those sections applied         enforcement officers. 1 The officers did not seek monetary
        to any complaint against a peace officer              damages, but *93 rather a temporary restraining order,
        within scope of statute; alleged violation of         temporary injunction, and permanent injunction stopping
        provisions did not deprive city of jurisdiction       the disciplinary proceeding and related investigations. 2 The
        or obviate need for exhaustion of administrative      officers also sought a declaratory judgment construing the
        remedies, inasmuch as even if city erroneously        statutory provisions they claim appellees violated, and a writ
        applied sections, error could be addressed in         of mandamus ordering Kunkle “to comply with the law and
        administrative process and ultimately under           to cease all activities in violation of the aforementioned
        judicial review provided by city charter.             Government Code provisions, including but not limited to:
        V.T.C.A., Government Code §§ 614.022,                 [the four items set forth in appellants' request for injunctive
        614.023.                                              relief].”

        1 Cases that cite this headnote                       Appellees filed a plea to the jurisdiction, seeking dismissal
                                                              of the officers' claims. Among other things, appellees
                                                              asserted the trial court lacked subject-matter jurisdiction over
                                                              the officers' claims because they had not exhausted their
Attorneys and Law Firms                                       administrative remedies, because their claims were not ripe
                                                              for adjudication, and because there was no legislative waiver
 *92 David A. Schiller, John D. Exline, The Shiller Firm,
                                                              of appellees' immunity from suit. After a hearing, the trial
Plano, for Appellants.
                                                              court granted the plea to the jurisdiction and abated the case
Barbara E. Rosenberg, City of Dallas Attorney's Office, for   until the officers exhausted their administrative remedies.
Appellees.
                                                              The officers appealed. See TEX. CIV. PRAC. & REM.CODE
Before Justices MOSELEY, RICHTER, and FRANCIS.                § 51.014(8) (Vernon 2008). Appellees did not file a cross-
                                                              appeal. In a single issue, the officers contend the trial court
                                                              erred by granting appellees' plea to the jurisdiction and
                         OPINION                              abating the case for the exhaustion of their administrative
                                                              remedies. The officers argue neither the primary jurisdiction
Opinion by Justice MOSELEY.                                   doctrine nor the exclusive jurisdiction doctrine apply here
                                                              to support the trial court's order abating the case until


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


administrative remedies are exhausted. They also argue               exclusive jurisdiction when a pervasive regulatory scheme
that if either doctrine applies here, nevertheless one of            indicates the legislature intended the regulatory process to
several exceptions to excuse them from exhausting their              be “the exclusive means of remedying the problem to which
administrative remedies.                                             the regulation is addressed.” Id. (citation omitted). Thus
                                                                     whether an agency has exclusive jurisdiction depends on
                                                                     statutory interpretation. Id.; see e.g., Thomas v. Long, 207
                                                                     S.W.3d 334 (Tex.2006) (supreme court interprets statute
                  II. APPLICABLE LAW
                                                                     governing creation and operation of sheriff's department
A. Standard of Review                                                civil service commission and concludes, despite absence
A plea to the jurisdiction is a dilatory plea that seeks dismissal   of “exclusive jurisdiction” language, that commission has
of a case for lack of subject matter jurisdiction. Bland Indep.      exclusive jurisdiction over relevant employment matters).
 *94 Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).
Whether a trial court has subject matter jurisdiction is a            [3]    If the administrative agency has either primary
question of law to be reviewed de novo. Tex. Natural Res.            jurisdiction or exclusive jurisdiction, the trial court should
Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 855                   await the exhaustion of administrative remedies before
(Tex.2002); Subaru of Am., Inc. v. David McDavid Nissan,             proceeding, if at all. See Subaru of Am., Inc., 84 S.W.3d at 221
Inc., 84 S.W.3d 212, 222 (Tex.2002) (issues of primary or            (“If the primary jurisdiction doctrine requires a trial court to
exclusive jurisdiction). In performing this review, we do not        defer to an agency to make an initial determination, the court
look to the merits of the plaintiff's case, but consider only        should abate the lawsuit and suspend finally adjudicating
the pleadings and the evidence pertinent to the jurisdictional       the claim until the agency has an opportunity to act on the
inquiry. See Tex. Dep't of Parks & Wildlife v. Miranda, 133          matter.”); id. (“[I]f an agency has exclusive jurisdiction, a
S.W.3d 217, 227 (Tex.2004); County of Cameron v. Brown,              party must exhaust all administrative remedies before seeking
80 S.W.3d 549, 555 (Tex.2002).                                       judicial review of the agency's action.”).



B. Primary and Exclusive Jurisdiction                                C. The City's Administrative Process
 [1] The primary jurisdiction and exclusive jurisdiction              [4] The City of Dallas is a home-rule municipal corporation.
doctrines both relate to administrative law; nevertheless,           Lowenberg, v. City of Dallas, 261 S.W.3d 54, 58 (Tex.2008).
they are “distinctly different doctrines that have different         Home-rule cities have broad discretionary powers, provided
consequences when applied.” Subaru of Am., Inc., 84 S.W.3d           that no ordinance “shall contain any provision inconsistent
at 221. The doctrine of primary jurisdiction “allocate [s]           with the Constitution of the State, or of the general laws
power between courts and agencies when both have authority           enacted by the Legislature of this *95 State.” TEX. CONST.
to make initial determinations in a dispute.” In re Sw. Bell Tel.    art. XI, § 5. They possess the full power of self government
Co., L.P., 226 S.W.3d 400, 403 (Tex.2007) (quoting Subaru            and look to the legislature not for grants of power, but
of Am., Inc., 84 S.W.3d at 221). Trial courts should defer to        only for limitations on their power. Dallas Merchant's and
appropriate administrative agencies when (1) the agency is           Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489,
staffed with experts trained in handling complex problems            489–90 (Tex.1993).
within the agency's purview, and (2) great benefit is derived
from the agency's uniform interpretation of laws within its          The City has not adopted the state civil service provisions,
purview and the agency's rules and regulations when courts           instead using its own civil service provisions adopted in its
and juries might reach differing results under similar fact          charter and ordinances. See Cooper v. City of Dallas, 229
situations. Id.                                                      S.W.3d 860, 863 (Tex.App.-Dallas 2007, pet. denied); see
                                                                     also TEX. LOCAL GOV'T CODE ANN. § 143.002 (Vernon
 [2] While primary jurisdiction is prudential in nature,             Supp.2008); see generally id. §§ 143.001–.363 (Vernon 1999
exclusive jurisdiction is jurisdictional. See Subaru of Am.,         & Supp.2008) (municipal civil service for firefighters and
Inc., 84 S.W.3d at 221. Under the exclusive jurisdiction             police officers). The City's charter authorizes the police
doctrine, the legislature is considered to have granted              chief to discipline officers, and provides an administrative
an administrative agency the sole authority to make an               procedure for contesting and appealing the police chief's
initial determination in a dispute. See id. An agency has            discipline decisions. DALLAS, TEX., CHARTER ch. XII, §
                                                                     4. After discipline has been imposed, the officer may appeal


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


to the city manager. Id. If the discipline is upheld by the        there is no great benefit in allowing the City to interpret
city manager, the officer may appeal to the civil service          sections 614.022–.023.
trial board or an administrative law judge. DALLAS, TEX.,
CHARTER ch. XVI, § 12.1; DALLAS, TEX., CODE § 34–                  However, the officers frame the scope of the City's
40. The charter and ordinances establish detailed procedures       administrative process too narrowly. The subject of the City's
for the hearing before the trial board or administrative law       administrative *96 procedure is whether or not to discipline
judge. See DALLAS, TEX., CHARTER ch. XVI, §§ 12, 12.1;             the officers—members of Dallas Police Department—for
DALLAS, TEX., CODE § 34–40. Either party may appeal the            alleged misconduct. The issue before the trial court, and
decision of the trial board or administrative law judge to state   before us, is whether the City may make the initial
district court. DALLAS, TEX., CHARTER ch. XVI, § 12(b);            determination of that dispute through its administrative
DALLAS, TEX., CODE § 34–40(f)(2)(A). “The appeal to the            procedures, before the parties are allowed to resort to the
district court must be decided upon review of the record of the    courts. Thus the scope of the administrative proceeding is
hearing.” DALLAS, TEX., CODE § 34–40(f)(2)(B); see also            broader than the interpretation of sections of the government
DALLAS, TEX., CHARTER ch. XVI, § 12(b) (“the matter                code.
must be decided based upon the review of the record” of the
hearing before the administrative law judge).                      Here the City charter clearly gives the City—through its
                                                                   chief of police—the right to “discipline any of the officers ...
                                                                   for violations of city ordinances or federal or state law, or
                                                                   for failure to obey orders given by the proper authority, or
                       III. ANALYSIS
                                                                   the orders, rules, and regulations promulgated by the chief
A. Waiver                                                          of police.” DALLAS, TEX., CHARTER ch. XII § 4. That
The officers argue appellees did not assert the primary            determination is subject to review by other personnel within
jurisdiction doctrine in their plea to the jurisdiction and that   the City, and is subject to review in district court based on the
appellees requested only dismissal of the suit, not abatement.     administrative record. See DALLAS, TEX., CHARTER ch.
Although a plea in abatement might be the more appropriate         XVI, §§ 12, 12.1; DALLAS, TEX., CODE § 34–40.
device to raise a primary jurisdiction argument, the plea
clearly argued that the officers were required to exhaust          Whether an officer's actions warrant discipline and, if so, the
their administrative remedies as “a prerequisite to subject-       amount of such discipline, are complex problems within the
matter jurisdiction for this suit.” Moreover, the order being      purview of the City, and the City-through its chief of police
appealed abated the case, which would be the result of a           and the other personnel involved in the City's administrative
determination that the City had primary jurisdiction. The          disciplinary procedure—is staffed with experts trained in
appellees did not file a cross-appeal complaining of the trial     handling those complex problems. See In re Sw. Bell Tel.
court's failure to dismiss the suit outright. Thus, it does not    Co., L.P., 226 S.W.3d at 403. Moreover, if courts and
appear from this record that the officers were prejudiced          juries made the initial determination of police disciplinary
by appellees' argument for greater relief—dismissal without        issues, they may reach differing results under similar fact
prejudice—under the exclusive jurisdiction doctrine rather         situations. This would result in increased uncertainty and less
than for an abatement under the exhaustion requirement for         uniformity in police disciplinary issues, undermining both
primary jurisdiction                                               the City's authority to operate and manage the department
                                                                   and the confidence of the public and the police officers that
                                                                   discipline issues will be handled in a uniform manner. Thus,
B. Primary Jurisdiction                                            there is a significant benefit derived from the City's uniform
The officers next argue that the City does not have                interpretation of the police department's rules and regulations.
primary jurisdiction because the legislature has not conferred     See id.
authority on the City to interpret and apply government code
sections 614.022 and 614.023. The officers also argue the           [5] We conclude the City has primary jurisdiction over the
elements for primary jurisdiction are not met because the City     discipline of its police officers under the City charter and
and the police chief are not experts in how to interpret and       ordinances. This conclusion is unaffected by the officers'
determine the scope and effect of state statutes, and because      other claims for declaratory, injunctive, and mandamus relief.
                                                                   See Thomas, 207 S.W.3d at 342 (bringing suit as declaratory



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


judgment action did not change exclusive jurisdiction              writ) (citing Cleveland Bd. of Educ. v. Loudermill, 470
analysis where subject matter of action was “same subject          U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)).
matter over which the Legislature intended the Commission          The officers' allegations that appellees have or will violate
to exercise exclusive jurisdiction”). Similarly, an agency does    sections 614.022–.023 by disciplining them do not rise to the
not lack primary jurisdiction merely because it lacks power        level of constitutional due course of law violations warranting
to adjudicate all claims a party may desire to raise. See In re    an exception to the exhaustion requirement. See Tex. Educ.
Sw. Bell Tel. Co., L.P., 226 S.W.3d at 404 (“Although the          Agency v. Cypress–Fairbanks Indep. Sch. Dist., 830 S.W.2d
PUC cannot grant all the relief that the plaintiffs request, the   88, 91 (Tex.1992) (discharged employees' assertion of federal
PUC is authorized to make initial determinations regarding         due process rights and violations of Title 42 of the United
the validity of the interconnection agreements and their           States Code did not excuse exhaustion of administrative
interpretation.... Once the PUC has made its determinations        remedies under Texas Education Code).
regarding the interconnection agreements, then the trial court
may proceed with its adjudicative function.”).                      [9] The officers also assert the determination of the whether
                                                                   appellees have or will violate sections 614.022–.023 is purely
                                                                   a question of law and the facts are undisputed. The officers
C. Exceptions to Exhaustion Requirement                            contend Appellees violated sections 614.022–.023 when they
 [6] Even if the City has primary jurisdiction, there are          considered an anonymous letter in connection with the
exceptions to the exhaustion requirement, and the officers         disciplinary proceedings. Appellees dispute this contention
claim that several apply. See Dotson v. Grand Prairie Indep.       and argue the disciplinary investigation was based on a signed
Sch. Dist., 161 S.W.3d 289, 291–92 (Tex.App.-Dallas 2005,          complaint detailing the specific allegations *98 against the
no pet.). 3 *97 We disagree, however. The officers claim           officers and that the complaint was given to them within
they will suffer irreparable injury if required to exhaust         a reasonable time. We conclude the officers' claims do not
their administrative remedies, but the injury they claim is        involve pure questions of law and undisputed facts.
damage to their reputations and loss of future income and
benefits—all of which can be compensated for by money            The last two exceptions are argued together. The officers
damages. Moreover, these possible damages would result           argue the City lacks jurisdiction over their claims and it is
from the discipline, if any, imposed by the City, not from the   acting without authority. Initially, we reject any argument
administrative process itself. See Houston Fed'n of Teachers,    the City lacks jurisdiction or authority to discipline its
Local 2415 v. Houston Indep. Sch. Dist., 730 S.W.2d 644,         police officers under the procedures set out in its charter
646 (Tex.1987); Dotson, 161 S.W.3d at 292. Further, as noted     and ordinances. The officers equate sections 614.022–.023
above, that the agency may not be able to provide all relief     with statutory prerequisites to an agency's jurisdiction and
requested does not excuse the exhaustion requirement. See In     authority to act, and argue the violation of those sections
re Sw. Bell Tel. Co., L.P., 226 S.W.3d at 404; Dotson, 161       deprives the City of jurisdiction and authority to act.
S.W.3d at 292.                                                   The supreme court has rejected the notion that failure to
                                                                 follow statutory provisions deprives a court of jurisdiction.
 [7] [8] The officers next claim appellees have violated and See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76–77
will continue to violate their due course of law rights under    (Tex.2000) (“We therefore overrule Mingus [v. Wadley, 115
                                                    4            Tex. 551, 285 S.W. 1084 (1926)] to the extent that it
the Texas constitution. TEX. CONST. art. I, § 19. However,
it is the officers who are attempting to avoid the very process  characterized the plaintiff's failure to establish a statutory
that is due in this circumstance—administrative review of        prerequisite as jurisdictional.”).
employee discipline under the City's charter and ordinances,
followed by judicial review in the courts if necessary. As        [10] Further, we do not read sections 614.022–.023 as
this Court has recognized, “[d]ue process requires a public      statutory prerequisites to the jurisdiction or authority of the
employer to provide its employee: (1) oral or written notice of  City to discipline its officers. Certainly those sections apply
the charges against him; (2) an explanation of the employer's    to any complaint against a peace officer within the scope
evidence; (3) a fair opportunity for the employee to present his of the statute, see TEX. GOV'T CODE ANN. § 614.021.
side of the story; and (4) a full evidentiary post-termination   However they do not limit the City's jurisdiction or authority
hearing conducted at a meaningful time.” Baca v. City of         to act, and their alleged violation does not deprive the City of
Dallas, 796 S.W.2d 497, 499 (Tex.App.-Dallas 1990, no            jurisdiction or authority or obviate the need for exhaustion of



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Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


                                                                            Because the City has primary jurisdiction over the disputes
administrative remedies. Even if the City erroneously applies
                                                                            at issue in this case and no exception to the exhaustion
the sections, that error can be addressed in the administrative
                                                                            requirement applies, the trial court properly abated the case
process and ultimately in the courts under the judicial review
                                                                            until the officers exhausted their administrative remedies. We
provided by the City charter and ordinances.
                                                                            need not decide if the exclusive jurisdiction doctrine also
                                                                            applies in this case because in either case, the trial court
We conclude none of the recognized exceptions to the
                                                                            should defer to the City to make an initial determination
exhaustion requirement apply in this case. We overrule the
                                                                            regarding discipline of its officers. See In re Sw. Bell Tel. Co.,
officers' sole issue.
                                                                            L.P., 226 S.W.3d at 403; Subaru of Am., Inc., 84 S.W.3d at
                                                                            221. We affirm the trial court's order.

                     IV. CONCLUSION



Footnotes
1      The code provisions alleged are sections 614.021, 614.022, and 614.023 of the Texas Government Code. TEX. GOV'T CODE ANN.
       §§ 614.021–.023 (Vernon Supp.2008). Section 614.021 provides that the subchapter applies only to complaints against listed law
       enforcement officers and firefighters, including “a peace officer under Article 2.12, Code of Criminal Procedure, or other law who
       is appointed or employed by a political subdivision of this state.” TEX. GOV'T CODE ANN. § 614.021.
          Sections 614.022 and 614.023 provide:
          § 614.022. Complaint to be in Writing and Signed by Complainant
          To be considered by the head of a state agency or by the head of a fire department or local law enforcement agency, the complaint
          must be:
          (1) in writing; and
          (2) signed by the person making the complaint.
          § 614.023. Copy of Complaint to be Given to Officer or Employee
          (a) A copy of a signed complaint against a law enforcement officer of this state or a fire fighter, detention officer, county jailer,
          or peace officer appointed or employed by a political subdivision of this state shall be given to the officer or employee within a
          reasonable time after the complaint is filed.
          (b) Disciplinary action may not be taken against the officer or employee unless a copy of the signed complaint is given to the
          officer or employee.
          (c) In addition to the requirement of Subsection (b), the officer or employee may not be indefinitely suspended or terminated from
          employment based on the subject matter of the complaint unless:
          (1) the complaint is investigated; and
          (2) there is evidence to prove the allegation of misconduct.
          TEX. GOV'T CODE ANN. § 614.022, .023.
2      Specifically, they sought to temporarily and permanently enjoin appellees from:
          1. Taking disciplinary against [the officers] and in particular conducting the disciplinary hearing set for December 18, 2007;
          2. Continuing any investigation or disciplinary action against [the officers];
          3. Conducting any further investigations on the same issues investigated in the unlawful investigation; and
          4. Opening any new investigations based on evidence gathered in the unlawful investigation or investigations.
          The officers also sought a writ of mandamus ordering Kunkle “to comply with the law and to cease all activities in violation of
          the aforementioned Government Code provisions, including but not limited to: [the four items set forth in appellants' request for
          injunctive relief].”
3      “Exhaustion of administrative remedies is not necessary if: (1) the aggrieved party will suffer irreparable harm and the administrative
       agency is unable to provide relief; (2) the claims are for a violation of a constitutional or federal statutory right; (3) the cause of action
       involves pure questions of law and the facts are not disputed; (4) the Commissioner of Education lacks jurisdiction over the claims;
       (5) the administrative agency acts without authority; or (6) the claims involve parties acting outside the scope of their employment
       with the school district.” Id.
4      There is a authority that this exception applies only to alleged violations of the federal constitution and statutes. See Jackson v.
       Houston Indep. Sch. Dist., 994 S.W.2d 396, 402 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Janik v. Lamar Consol. Indep. Sch.
       Dist., 961 S.W.2d 322, 323–24 (Tex.App.-Houston [1st Dist.] 1997, writ denied); Hicks v. Lamar Consolidated Indep. Sch. Dist.,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                               7
Nelson v. City of Dallas, 278 S.W.3d 90 (2009)


       943 S.W.2d 540, 542 (Tex.App.-Eastland 1997, no writ). In an unpublished opinion, this Court concluded the better rule was set out
       in Hicks that this exception is merely a special case of the third exception for claims involving pure questions of law and undisputed
       facts. See Dallas Cent. Appraisal Dist. v. Hamilton, No. 05–99–01401–CV, 2000 WL 1048537 at *6, 2000 Tex.App.LEXIS 5069 at
       *16–*17 (Tex.App.-Dallas 2000, no pet.) (not designated for publication).


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


                                                                [6] evidence was sufficient to establish that publisher and
                                                                distributor suffered some damages as a result of owner's
                    202 S.W.3d 250
                                                                fraud, but amount awarded by the jury was not supported by
                Court of Appeals of Texas,
                                                                the evidence; and
                Corpus Christi–Edinburg.

      PLAYBOY ENTERPRISES, INC., Appellant,                     [7] judgment on fraud claim would be reversed and remanded
                         v.                                     for a new trial on both liability and damages.
            EDITORIAL CABALLERO,
           S.A. DE C.V., et al., Appellees.                     Reversed and rendered in part, and reversed and remanded in
                                                                part.
     No. 13–03–048–CV. | May 25, 2006.
    | Motion for En Banc Reconsideration and
    Motion for Rehearing Overruled Oct. 12, 2006.
                                                                 West Headnotes (35)
Synopsis
Background: In action started by advertising service,
publisher and distributor of Spanish edition of magazine         [1]    Fraud
asserted fraud, breach of contract, breach of fiduciary duty,               Duty to Investigate
business disparagement, and tortious interference claims                A party to an arm's length transaction must
against magazine owner. Owner cross-claimed for breach                  exercise ordinary care and reasonable diligence
of contract and fraud. The 332nd District Court of Hidalgo              for the protection of his own interests, and
County, Mario E. Ramirez, Jr., J., realigned publisher and              a failure to do so is not excused by mere
distributor as plaintiffs, and entered a judgment on a jury             confidence in the honesty and integrity of the
verdict for publisher and distributor. Owner appealed.                  other party.

                                                                        Cases that cite this headnote

Holdings: The Court of Appeals, Rodriguez, J., held that:
                                                                 [2]    Fraud
[1] publisher and distributor could not recover in fraud                     Relations and means of knowledge of
on alleged oral representations made by owner where such                parties
representations were directly contradicted by the parties'              Reliance upon an oral representation that
license agreement;                                                      is directly contradicted by the express,
                                                                        unambiguous terms of a written agreement
[2] owner had duty to disclose that magazine founder, who               between the parties is not justified as a matter of
was also majority shareholder of owner, did not want a                  law.
competing second-language edition distributed in the United
States;                                                                 3 Cases that cite this headnote


[3] evidence was sufficient to establish that publisher          [3]    Fraud
and distributor were unaware that magazine's founder was                     Relations and means of knowledge of
adamantly opposed to parties' license agreement;                        parties
                                                                        Fraud
[4] owner did not tortiously interfere with any contracts
                                                                            Defenses
between publisher and distributor and third parties;
                                                                        Publisher and distributor of Spanish edition of
                                                                        magazine could not recover for fraud based on
[5] owner did not owe a fiduciary duty to publisher and
                                                                        magazine owner's alleged oral representations
distributor;
                                                                        that owner would not enforce the parties' license
                                                                        agreement, that renewal of license agreement



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


        was automatic, that publisher and distributor
        could import Spanish edition into the United           [6]     Fraud
        States, that owner was not concerned with                          Duty to disclose facts
        cannibalization, that it would not be a problem to             As a general rule, a failure to disclose
        distribute 150,000 copies of the Spanish edition               information does not constitute fraud unless
        per month and that parties would be partners,                  there is a duty to disclose the information.
        where alleged oral representations were directly
        contradicted by the express, unambiguous terms                 1 Cases that cite this headnote
        of the parties' license agreement, and license
        agreement contained a merger clause stating            [7]     Fraud
        agreement represented the entire understanding                     Duty to disclose facts
        of the parties.                                                A duty to disclose information can arise where
                                                                       there is a formal fiduciary relationship.
        3 Cases that cite this headnote
                                                                       1 Cases that cite this headnote
 [4]    Contracts
            Merger in Subsequent Contract                      [8]     Fraud
        Fraud                                                              Duty to disclose facts
            Defenses                                                   A duty to disclose information can arise where
        Where a contract is negotiated at arms-length                  there is a confidential relationship between the
        by sophisticated businessmen represented by                    parties.
        counsel, a merger clause, stating the contract
        represents the entire understanding of the parties             1 Cases that cite this headnote
        and it can not be waived or modified except by
        an express agreement in writing, is enforceable,       [9]     Fraud
        and negates reliance on any alleged oral                           Duty to disclose facts
        representations.
                                                                       The existence of a fiduciary or confidential
        3 Cases that cite this headnote                                relationship is but one of the bases for imposing
                                                                       a duty to disclose information, and a duty to
                                                                       speak may arise in an arms-length transaction
 [5]    Fraud                                                          in at least three other situations: (1) when one
            Reliance on Representations and                            voluntarily discloses information, he has a duty
        Inducement to Act                                              to disclose the whole truth; (2) when one makes
        Publisher and distributor of Spanish edition                   a representation, he has a duty to disclose new
        of magazine could not recover for fraud                        information when the new information makes
        based on magazine owner's alleged approval of                  the earlier representation misleading or untrue;
        distributor's media kit setting out an expected                and (3) when one makes a partial disclosure and
        monthly United States distribution of 225,000                  conveys a false impression, he has the duty to
        copies, where parties' license agreement required              speak.
        formal written approval for United States
        distribution and stated that, if approval was                  7 Cases that cite this headnote
        granted, such distribution would not exceed
        150,000 copies per issue, and owner's alleged          [10]    Fraud
        approval of the media kit was not a formal                         Questions for Jury
        written approval.
                                                                       Whether a duty to disclose information exists is
        Cases that cite this headnote                                  a question of law.




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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


                                                                            Contracts
        1 Cases that cite this headnote
                                                                       A tortious interference cause of action is
                                                                       established if the plaintiff proves: (1) the
 [11]   Fraud                                                          existence of a contract subject to interference; (2)
            Duty to disclose facts                                     a willful and intentional act of interference; (3)
        Magazine owner had a duty to disclose to                       the act was a proximate cause of the plaintiff's
        publisher and distributor of Spanish edition of                damages; and (4) actual damage or loss resulted.
        magazine that magazine's founder, who was
                                                                       2 Cases that cite this headnote
        also majority shareholder of owner, did not
        want a second-language edition of the magazine
        competing with the English edition of the              [14]    Torts
        magazine in the United States, for purposes                        Contracts in general
        of fraudulent concealment claim asserted by                    Owner of magazine did not tortiously interfere
        publisher and distributor against owner, as                    with any contracts between publisher and
        owner did disclose to publisher and distributor                distributor of Spanish edition of magazine and
        general concerns it had about a Spanish edition                third parties, where publisher and distributor did
        cannibalizing sales of the English edition,                    not identify any specific contracts with third
        but owner did not disclose material fact that                  parties that were interfered with, and publisher
        agreement with publisher and distributor was                   resisted pressure by owner to terminate its
        quite contrary to what founder envisioned for                  contract with distributor.
        a Spanish edition, and thus owner had not
        disclosed the whole truth, new information                     2 Cases that cite this headnote
        was not disclosed that made owner's earlier
        representations misleading, and owner's partial
                                                               [15]    Joint Adventures
        disclosures conveyed a false impression.
                                                                            Other relations distinguished and contracts
        2 Cases that cite this headnote                                creating them
                                                                       Publisher and distributor of Spanish edition of
                                                                       magazine could not recover against magazine's
 [12]   Fraud
                                                                       owner for breach of fiduciary duty based on a
            Weight and Sufficiency
                                                                       joint enterprise, as a joint enterprise between the
        Evidence was sufficient to establish, in trial                 parties did not exist; parties had entered into a
        of fraudulent concealment claim asserted by                    license agreement, owner's compensation under
        publisher and distributor of Spanish edition                   the agreement was solely in the form of royalties,
        of magazine against owner of magazine, that                    and thus the community of pecuniary interest in
        publisher and distributor were unaware that                    a common purpose that was necessary for a joint
        magazine's founder, who was also majority                      venture was lacking.
        shareholder of owner, was adamantly opposed
        to owner's license agreement with publisher                    Cases that cite this headnote
        and distributor; corporate representative of
        distributor testified he did not know of founder's
                                                               [16]    Joint Adventures
        opposition or that founder did not want a Spanish
                                                                            Other relations distinguished and contracts
        edition unless it was owned 100 percent by
                                                                       creating them
        owner and was an exact translation of the English
                                                                       A joint enterprise cannot exist as a matter of law
        version.
                                                                       between a licensee who has a pecuniary interest
        Cases that cite this headnote                                  in profits and a licensor who has a pecuniary
                                                                       interest only in royalties, since the necessary
                                                                       community of pecuniary interest in a common
 [13]   Torts
                                                                       purpose is lacking.


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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


                                                                       existed. Vernon's Ann.Texas Rules Civ.Proc.,
        Cases that cite this headnote                                  Rule 93(5).

                                                                       Cases that cite this headnote
 [17]   Fraud
            Fiduciary or confidential relations
        Publisher and distributor of Spanish edition of        [20]    Partnership
        magazine could not recover against magazine's                      Community of Interest in Profits and Losses
        owner for breach of fiduciary duty based on                    A partnership requires an agreement to share
        a relationship of trust and confidence, as a                   profits.
        relationship of trust and confidence between
        the parties did not exist; though representatives              Cases that cite this headnote
        of publisher and distributor testified that they
        trusted owner and their business dealings were         [21]    Partnership
        friendly, subjective trust did not transform arms-                 Verification
        length dealings into fiduciary relationships, and
                                                                       Where the pleadings as a whole reflect that a
        license agreement between the parties expressly
                                                                       party, while using the term “partnership,” is
        provided that the only relationship between
                                                                       in fact asserting a different relationship, rule,
        owner and publisher and distributor was that of
                                                                       requiring the opposing party to file a verified
        licensor-licensee.
                                                                       denial of the partnership allegation in order to
        1 Cases that cite this headnote                                avoid a partnership being created by default,
                                                                       does not apply. Vernon's Ann.Texas Rules
                                                                       Civ.Proc., Rule 93(5).
 [18]   Fraud
            Fiduciary or confidential relations                        Cases that cite this headnote
        Subjective trust does not transform arms-length
        dealings into a fiduciary relationship.                [22]    Libel and Slander
                                                                           Nature and elements in general
        1 Cases that cite this headnote
                                                                       The general elements of a claim for business
                                                                       disparagement are publication by the defendant
 [19]   Partnership                                                    of the disparaging words, falsity, malice, lack of
            Verification                                               privilege, and special damages.
        Failure of owner of magazine to file a verified
        denial that a partnership existed between it                   Cases that cite this headnote
        and publisher and distributor of Spanish edition
        of magazine did not create a partnership by            [23]    Libel and Slander
        default, in breach of fiduciary duty and fraud                     Injury from slander
        action brought by publisher and distributor
                                                                       Representations in media kit allegedly approved
        against owner, though publisher and owner
                                                                       by owner of magazine, regarding circulation
        asserted they were in a “joint venture, joint
                                                                       numbers for Spanish edition of magazine in
        enterprise or partnership” with owner, as
                                                                       the United States, could not support claims by
        publisher and distributor had not pled a
                                                                       publisher and distributor of Spanish edition that
        true partnership; pleadings of publisher and
                                                                       they lost profits in Mexico as a result of owner's
        distributor acknowledged that owner was to
                                                                       wrongful business disparagement, as media kit
        receive royalties and not profits under parties'
                                                                       did not address business in Mexico.
        license agreement, a partnership required an
        agreement to share profits, and thus owner                     Cases that cite this headnote
        was not required to deny that a partnership




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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


                                                                       it all up just to stay in business, representative
 [24]   Appeal and Error                                               testified that money was spent on launch
           Amount of recovery or extent of relief                      parties, upgrading facilities, transportation,
        Magazine owner preserved for appellate review,                 building a staff and other activities, and,
        in fraud, breach of fiduciary duty, and breach                 relying on financial statements provided by
        of contract action brought by publisher and                    corporate representative, expert for publisher
        distributor of Spanish edition of magazine, issue              and distributor testified as to publishing rights
        of whether collective damages award was barred                 expense, distributor's expenses and investments,
        because jury did not determine publisher's and                 publisher's out-of-pocket expenses and profit and
        distributor's damages separately, where owner at               loss histories.
        charge conference objected to damage questions
        on ground that there was only one blank to put in              Cases that cite this headnote
        total damages for both parties, and that damages
        should be separated out.                               [27]    Damages
                                                                          Particular cases
        1 Cases that cite this headnote
                                                                       Fraud
                                                                           Amount awarded
 [25]   Judgment
                                                                       Evidence was sufficient to establish, in fraud,
            Joint or several judgment
                                                                       breach of fiduciary duty and breach of contract
        Trial court did not abuse its discretion, in                   action brought against magazine owner by
        fraud, breach of fiduciary duty, and breach                    publisher and distributor of Spanish edition of
        of contract action brought against magazine                    magazine, that publisher and distributor suffered
        owner by publisher and distributor of Spanish                  some damages for liabilities that were incurred as
        edition of magazine, by not charging publisher's               a result of owner's fraud that were not duplicative
        and distributor's damages separately, where                    of damages awarded for out-of-pocket expenses,
        publisher and distributor asserted their claims                though not the $500,000 that jury awarded for
        and causes of action jointly rather than severally,            liabilities incurred; publisher owed $110,000 to
        and neither publisher nor distributor claimed                  its editor-in-chief and such amount was not
        damages in separate sums on their causes of                    money borrowed and then spent, and records
        action. Vernon's Ann.Texas Rules Civ.Proc.,                    provided by publisher and distributor indicated
        Rule 40.                                                       that $125,000 went to distributor, of which
                                                                       $89,000 was invested in publisher.
        1 Cases that cite this headnote
                                                                       Cases that cite this headnote
 [26]   Damages
           Particular cases                                    [28]    Fraud
        Fraud                                                               Difference between actual and represented
            Amount awarded                                             value
        Evidence was sufficient to establish, in fraud,                Fraud
        breach of fiduciary duty and breach of contract                    Difference between value and price paid
        action brought against magazine owner by                       The two alternative measures of damages
        publisher and distributor of Spanish edition of                are benefit-of-the-bargain, or lost profits, and
        magazine, that publisher and distributor suffered              out-of-pocket measures; “benefit-of-the-bargain
        some out-of-pocket damages as a result of                      damages” are the difference between the value as
        owner's fraud, though not the $3,600,000 jury                  represented and the value received, while “out-
        awarded; corporate representative for distributor              of-pocket damages” compensate a defrauded
        testified that distributor brought in $4,000,000               party for the difference between the value of that
        in financing and did not count on having to use



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


        with which he or she has parted and the value                       Failure to introduce sufficient evidence to
        actually received.                                             authorize recovery or establish defense
                                                                       Judgment entered on a jury verdict on fraud
        Cases that cite this headnote
                                                                       claim, asserted against magazine owner by
                                                                       publisher and distributor of Spanish edition of
 [29]   Fraud                                                          magazine, would be reversed and remanded for
            Issues, proof, and variance                                a new trial on liability and damages, as there
        Fraud                                                          was no probative evidence supporting the entire
            Elements of compensation                                   amount of damages awarded by the judgment,
                                                                       but there was legally sufficient evidence that
        When properly pleaded and proved,
                                                                       publisher and distributor had suffered some
        consequential damages that are foreseeable and
                                                                       damages as a result of owner's fraud, because
        directly traceable to the fraud and result from it
                                                                       owner contested the issue of damages Court
        might be recoverable.
                                                                       of Appeals could not render judgment for a
        1 Cases that cite this headnote                                lesser dollar amount, and the interests of justice
                                                                       required a remand for another trial on liability
                                                                       and damages. Rules App.Proc., Rule 43.3(b).
 [30]   Fraud
            Elements of compensation                                   4 Cases that cite this headnote
        It is possible that, in the          proper case,
        consequential damages from           fraud could
                                                               [33]    Interest
        include foreseeable profits from    other business
                                                                            Effect on judgments
        opportunities lost as a result of   the fraudulent
                                                                       Amendments to statute lowering post-judgment
        misrepresentation.
                                                                       interest rate did not apply retroactively to
        1 Cases that cite this headnote                                judgment on fraud claim asserted against
                                                                       magazine owner by publisher and distributor of
                                                                       Spanish edition of magazine, where judgment
 [31]   Fraud
                                                                       was not signed on or after the effective date
            Damage from fraud
                                                                       of the amendments and did not become subject
        Consequential damages in the form of                           to appeal on or after the effective date of
        foreseeable profits from other business                        the amendments. V.T.C.A., Finance Code §
        opportunities lost as a result of the fraudulent               304.003.
        misrepresentation by owner of magazine were
        properly pled, in action brought against                       Cases that cite this headnote
        magazine owner by publisher and distributor of
        Spanish edition of magazine, where publisher's
                                                               [34]    Appeal and Error
        and distributor's petition sought recovery for
                                                                          Taking papers and articles to jury room
        all damages they sustained as a result of fraud
                                                                       Even if trial court erred, in fraud, breach
        including loss of profits in other ventures,
                                                                       of fiduciary duty, and breach of contract
        and prayed for any and all lost profits/lost
                                                                       action brought against magazine owner by
        business opportunity damages with respect to
                                                                       publisher and distributor of Spanish edition of
        other business ventures and relationships.
                                                                       magazine, by inadvertently failing to send to
        Cases that cite this headnote                                  jury transcript of testimony of one of publisher's
                                                                       and distributor's principals from another case
                                                                       stating that lack of funding caused failure of
 [32]   Appeal and Error
                                                                       Spanish edition of magazine, such error was not
           Reducing amount of recovery
                                                                       reversible error, where excerpts of the transcript
        Appeal and Error                                               were read to the jury during the trial, owner's



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


        counsel read to jury statement blaming failure of        interference with prospective business relations. PEI cross-
        Spanish edition on the lack of funding, and thus         claimed against EC and GSI alleging, among other things,
        jury was aware that there was evidence that lack         breach of contract and fraud. Immediately before closing
        of funding, rather than owner's actions, caused          arguments and over PEI's objection, the trial court realigned
        Spanish edition to fail. Rules App.Proc., Rule           EC and GSI as plaintiffs. The jury found for EC and GSI
        44.1(a).                                                 and against PEI on all claims, except interference with
                                                                 prospective business relations, and awarded $3,600,000 for
        1 Cases that cite this headnote                          out-of-pocket expenses, $500,000 for liabilities incurred, and
                                                                 $260,000 for lost profits. The jury declined to award punitive
 [35]   Trial                                                    damages. With respect to PEI's claims, the jury found that
             Several pleas or issues                             both EC and GSI had committed fraud and various contractual
        Trial court did not err by realigning publisher          breaches, but that their actions were excused. 2 The trial court
        and distributor of Spanish edition of magazine           rendered a final judgment for damages awarded by the jury in
        as plaintiffs for purposes of final argument, in         the amount of $4,360,000, plus the maximum allowable pre-
        action started by advertising company in which           judgment interest calculated from the date suit was filed and
        publisher and distributor asserted fraud, breach         post-judgment interest at the maximum rate allowed by law.
        of fiduciary duty and breach of contract action
        claims against magazine owner, as publisher,             PEI appeals from the judgment entered in favor of EC and
        distributor, and owner were equally positioned           GSI on their claims against PEI. By ten issues and sub-
        as defendants/cross-plaintiffs, and in such a            issues, PEI brings legal and factual sufficiency challenges
        situation trial court was allowed by rule to             related to the jury's liability and damage findings, and
        prescribe the order of argument. Vernon's                contends that the trial court erred in (1) realigning EC and
        Ann.Texas Rules Civ.Proc., Rule 269(a).                  GSI as plaintiffs, (2) failing to properly charge the jury on
                                                                 wrongful disparagement, and (3) refusing to send a requested
        Cases that cite this headnote                            exhibit to the jury room during deliberations. PEI asks this
                                                                 Court to reform the judgment, if affirmed, with respect to
                                                                 pre-judgment and post-judgment interest rates. By a single
                                                                 issue with sub-issues, PEI also appeals from the judgment
Attorneys and Law Firms                                          entered against PEI on its breach of contract cross-claim
                                                                 because EC and GSI failed to make payments owed under
*255 Harry M. Reasoner, Penelope E. Nicholson, Spikes            the International Publishing License Agreement (the License
Kangerga, Vinson & Elkins, Houston, for appellant.               Agreement) and under the Renegotiated Payment Plan. We
                                                                 reverse and render, in part, and remand, in part.
 *256 Donald B. Edwards Craig S. Smith, Corpus Christi,
for appellees.

Before Chief Justice VALDEZ and Justices HINOJOSA and                                 I. BACKGROUND
RODRIGUEZ.
                                                                 For many years, pursuant to predecessor agreements between
                                                                 EC and PEI, EC published and distributed a Spanish language
                         OPINION                                 version of Playboy magazine in *257 Mexico. 3 In October
                                                                 1996, PEI and EC entered into the License Agreement at issue
Opinion by Justice RODRIGUEZ.                                    in this case. It provided that EC would continue to publish
                                                                 and distribute the magazine in Mexico. It also provided
This commercial dispute arose between plaintiff Eduardo
                                                                 that EC, with PEI's prior written approval, could publish
Gongora, 1 appellant Playboy Enterprises, Inc. (PEI), and        a Spanish language version of Playboy for distribution
appellees Editorial Caballero, S.A. de C.V. (EC) and Grupo       in the United States and could assign the United States
Siete International, Inc. (GSI). EC and GSI cross-claimed
                                                                 distribution rights to, and only to, GSI. 4 The License
against PEI for fraud, breach of contract, breach of fiduciary
                                                                 Agreement was for a three-year term beginning January 1,
duty, business disparagement, tortious interference, and



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


1997. The October 1997 issue was the first issue of the
Spanish language edition of Playboy distributed in the United
States pursuant to the License Agreement. PEI terminated the          In this regard, [however,] a party to an arm's length
License Agreement in January 1998 for EC's non-payment                transaction must exercise ordinary care and reasonable
of royalties and other payments owed. Before termination of           diligence for the protection of his own interests, *258 and
the License Agreement, the parties had renegotiated payments          a failure to do so is not excused by mere confidence in the
and entered into a written Renegotiated Payment Plan.                 honesty and integrity of the other party. Therefore, reliance
                                                                      upon an oral representation that is directly contradicted by
                                                                      the express, unambiguous terms of a written agreement
                                                                      between the parties is not justified as a matter of law.
                          II. Fraud                                   DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A.,
                                                                      112 S.W.3d 854, 858 (Tex.App.-Houston [14th Dist.]
By its second issue, PEI contends that EC and GSI cannot
                                                                      2003, pet. denied) (en banc) (op. on reh'g).
recover for fraud as a matter of law. Alternatively, it
                                                                    [3] The License Agreement, in this case, specifically
complains that the evidence is insufficient to support the
                                                                   provided for the following:
finding.
                                                                     1. Upon the occurrence of an event of default, the non-
The jury answered, “Yes,” when asked, “Did [PEI] commit              defaulting party may terminate the License by written
fraud against [EC] or [GSI], or both, proximately causing            notice to the party in default;
damages?” The jury was instructed, in part, as follows:
                                                                     2. On the condition that Licensee shall be in full
  Fraud occurs when—                                                 compliance with the material terms of this Agreement,
                                                                     including the timely payment of all amounts required under
  a. a party makes a material misrepresentation,
                                                                     this Agreement, then Licensee shall have the option ... to
  b. the misrepresentation is made with knowledge of its             request negotiations concerning an extension of the license;
     falsity or made recklessly without any knowledge of the
                                                                     3. Distribution and sale of the Foreign Edition in any
     truth and as a positive assertion,
                                                                     country other than Mexico will be subject to Licensor's
  c. the misrepresentation is made with the intention that it        prior written approval, which may be withdrawn once
     should be acted on by the other party, and                      given, on notice from Licensor;

  d. the other party acted in reliance on the misrepresentation      4. If Licensor fails or declines to grant such consent or
     and thereby suffers injury.                                     approval to Licensee, Licensor shall not be liable to give
                                                                     any reason therefor;

                                                                     5. Licensor's approval of such distribution and sale in the
                  A. Oral Representations                            United States, if at all, will not occur until at least six (6)
                                                                     months following the legal formation of the joint venture
 [1]    [2] PEI contends that EC and GSI cannot, as a                Grupo Siete International, Inc., and if such approval
matter of law, recover for fraud based on PEI's alleged oral         is granted, will not exceed one-hundred-fifty thousand
representations because the License Agreement specifically           (150,000) copies per issue; and
bars EC and GSI from relying on oral representations. The
alleged oral representations at issue in this case include the       6. The rights and powers herein granted to Licensee are
following: (1) PEI would not enforce or terminate the License        those of a licensee only and this Agreement shall not, and
Agreement; (2) renewal was automatic; (3) EC and GSI could           is not intended to, create any other relationship nor make,
import the Spanish language edition into the United States; (4)      constitute or appoint Licensee an agent or employee of
PEI intended to ramp up circulation after the initial three-year     Licensor.
term of the License Agreement and was not concerned with
                                                                   The alleged oral representations about which EC and
“cannibalization;” 5 (5) it was not going to be a problem to
                                                                   GSI complain are directly contradicted by the express,
distribute or sell 150,000 copies per month; and (6) the parties
                                                                   unambiguous terms of the License Agreement, and EC and
would be partners.



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


GSI are not justified in relying upon them as a matter            in the media kit dealt with matters specific to PEI's rights
of law. See id. Thus, the fraud claim based on these oral         under the License Agreement, reliance by EC and GSI on
representations is barred on this basis.                          these representations was also negated as a matter of law. See
                                                                  Schlumberger, 959 S.W.2d at 180–81; DRC, 112 S.W.3d at
 [4] The License Agreement also contains a merger clause          858; see also Airborne Freight Corp. v. C.R. Lee Enter., 847
that specifically sets out that “this Agreement represents the    S.W.2d 289, 297–98 (Tex.App.-El Paso 1992, writ denied).
entire understanding of the parties. None of the terms of
this Agreement can be waived or modified except by an
express agreement in writing signed by the parties. There
                                                                                  C. Fraudulent Concealment
are no representations, promises, warranties, covenants or
undertakings other than those contained in this Agreement.”       The jury was also instructed, in part, as follows:
Where a contract is negotiated at arms-length by sophisticated
businessmen represented by counsel, this type of “merger”           Fraud may also occur when—
clause, like the clause in Schlumberger Tech. Corp. v.
                                                                    a. a party conceals or fails to disclose a material fact within
Swanson, 959 S.W.2d 171, 180–81 (Tex.1997), is enforceable
                                                                       the knowledge of that party,
and negates reliance on any alleged oral representations,
an essential element of fraud as set out in the charge              b. a party knows that the other party is ignorant of the fact
above. See id. (providing that merger clauses could, in some           and does not have an equal opportunity to discover the
cases, operate to negate the reliance element of fraudulent-           truth,
inducement claims arising from the same contract containing
the merger clause); see also IKON Office Solutions, Inc.            c. a party intends to induce the other party to take some
v. Eifert, 125 S.W.3d 113, 126–28 (Tex.App.-Houston                    action by concealing or failing to disclose the fact, and
[14th Dist.] 2003, pet. denied) (providing that provisions
that contract was “entire agreement” and requiring any              d. the other party suffers injury as a result of acting without
modifications to be in writing barred fraudulent-inducement            knowledge of the undisclosed fact.
claim under Schlumberger ). Here, as in *259 Schlumberger,
the alleged oral representations dealt with matters specific to
PEI's rights under the License Agreement. Therefore, reliance                                1. Duty
by EC and GSI on the purported oral representations is
negated as a matter of law on this basis.                         PEI contends that fraudulent concealment cannot be based on
                                                                  PEI's alleged failure to disclose the concerns of Hugh Hefner,
                                                                  founder of Playboy, chairman emeritus, editor-in-chief, and
                                                                  owner of approximately seventy percent of the stock, about
                       B. Media Kit
                                                                  distributing a second-language version of Playboy in the
 [5] PEI also asserts that EC and GSI cannot rely on the          United States, because it owed no such duty. PEI asserts it had
asserted approval of the “media kit” as a representation that     no duty to disclose these concerns because it had no special
EC and GSI could distribute 225,000 copies monthly in             relationship of trust and confidence with EC and GSI in this
the United States. GSI prepared the media kit to promote          arms-length commercial transaction.
the planned U.S. launch of the magazine. The kit set out
expected monthly U.S. distribution at 225,000 copies, with         [6]    [7]    [8]    [9]    [10] “As a general rule, a failure
expected sales of 125,000 copies. However, the License            to disclose information does not constitute fraud unless
Agreement, which required formal, written approval for any        there is a duty to disclose the information.” Bradford v.
U.S. distribution, provided that, if approval was granted, such   Vento, 48 S.W.3d 749, 756 (Tex.2001) (quoting Ins. Co.
distribution and sale in the United States would not exceed       of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998));
150,000 copies per issue. The number set out in the media         see Ralston Purina Co. v. McKendrick, 850 S.W.2d
kit exceeded 150,000, and PEI approval, if any, of a media        629, 633–36 (Tex.App.-San Antonio 1993, writ denied).
kit was not the formal written approval for U.S. distribution     Such a duty can arise where there is a formal fiduciary
required by the License Agreement. Therefore, because the         relationship. See Morris, 981 S.W.2d at 674 (providing
alleged approval of the media kit and representations set out     that “[f]iduciary duties arise as a matter of law in certain



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


formal relationships, including attorney-client, partnership,          should all prepare ourselves for the microscope, including,
and trustee relationships”). Such a duty can also arise where          perhaps even “inputs” from Hef, for entering the USA.
there is a confidential relationship *260 between the parties.
Id. (providing that “confidential relationships may arise when       Additionally, O'Donnell testified that PEI disclosed to EC and
the parties have dealt with each other in such a manner for          GSI that Hefner was upset and that cannibalization needed
a long period of time that one party is justified in expecting       to be disproved. 7 Fernando Becerra Paramo, *261 GSI's
the other to act in its best interest”). However, the existence      editor-in-chief, also testified that he was aware of PEI's
of a fiduciary or confidential relationship is but one of            cannibalization concerns.
the bases for imposing a duty to disclose information. See
Formosa Plastics Corp. v. Presidio Engineers & Contractors,          While there is evidence that PEI disclosed general concerns,
Inc., 941 S.W.2d 138, 146–47 (Tex.App.-Corpus Christi,               the evidence also establishes that material facts regarding
1995) (per curiam), rev'd on other grounds, 960 S.W.2d               Hefner's position on cannibalization and his instructions
41, 44 (Tex.1998). In addition to situations where there is          regarding the publication of the Spanish language edition
a fiduciary or confidential relationship, as this Court set          for distribution in the United States were not disclosed to
out in Formosa Plastics, a duty to speak may arise in an             EC and GSI. Early internal memos at PEI set out that
arms-length transaction in at least three other situations: (1)      what was being done was “quite contrary to how Hef
when one voluntarily discloses information, he has a duty to         envisioned this publication.” In November 1996, after the
disclose the whole truth; (2) when one makes a representation,       License Agreement was signed, Christie Hefner, chairman of
he has a duty to disclose new information when the new               the board of directors, chief executive officer, and Hefner's
information makes the earlier representation misleading or           daughter, wrote a memo to Marks and Bob Perkins setting
untrue; and (3) when one makes a partial disclosure and              out, in part, the following:
conveys a false impression, he has the duty to speak. Id.;
Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.-Houston                          My agreement to allow the export
[14th Dist.] 1997, pet. denied); Ralston Purina, 850 S.W.2d at                   of the Mexican edition subject to
                                                                                 creative and business parameters
635–36. 6 “Whether such a duty exists is a question of law.”
                                                                                 was not an agreement to allow
Bradford, 48 S.W.3d at 755; see Hoggett, 971 S.W.2d at 487.
                                                                                 quasi American and Mexican Spanish
                                                                                 language editions. When Bob starts
The evidence in this case establishes that as early as the fall of
                                                                                 talking about U.S. drawings in the
1996, PEI, EC, and GSI knew of Hefner's concerns regarding
                                                                                 book, U.S. pictorials, U.S. interview
the distribution of a Spanish language edition of Playboy. It
                                                                                 subjects, we are now clearly crossing
is undisputed that before the License Agreement was signed
                                                                                 the line into a Spanish language
in November 1996 and became effective in January 1997,
                                                                                 edition of Playboy for the U.S. market
PEI disclosed general information to EC and GSI regarding
                                                                                 competing with U.S. Playboy, which
concerns it had about cannibalism and the publication of
                                                                                 is not something that I approved and
the Spanish language edition for distribution in the United
                                                                                 I think is directly contrary to concerns
States. For example, on October 17, 1996, Robert O'Donnell,
                                                                                 that Hef expressed when we were
a member of the board of directors, vice-president of the
                                                                                 looking at this as a stand-alone deal.
international publishing group, and business manager for PEI,
wrote a memo to Henry Marks, a senior vice-president of the          In December 1996, Hefner wrote the following internal
international publishing group and a member of the board of          memo:
directors at PEI, which reads, in part, as follows:
                                                                       With the acquisition of the Mexican Playboy by a U.S.
  I just finished a coffee with [EC and GSI principals,] Javier        firm, it is important to make clear that the editorial focus
  [Sanchez Campuzano (Sanchez) ] and Paul [Siegel], and                and distribution of this Spanish language version of the
  while feathers are still a bit ruffled, especially Javier's,         magazine remain essentially Mexican.
  they're going to sign the deal as written....
                                                                       As previously expressed, I don't want a second language
  I was very clear to both of them that while I anticipated few        version of Playboy competing with us here in the U.S.
  problems or issues re: the other Spanish markets, that we



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                                                                   For example, by internal memo in July 1997, Dick
Again, in February 1997, after the License Agreement               Rosenzweig, chief financial officer and Hefner's right-hand
became effective, Hefner wrote internal memos expressing           man and contact with the operations of the company, wrote
his position and dissatisfaction with the project. On February     the following memo to Christie, which reads in part:
4, 1997, he sent the following Playboy interoffice memo to
Marks:                                                               Hef had and continues to have major reservations about
                                                                     how this project will negatively impact the circulation
  There still seems to be real confusion on what is acceptable       and advertising of [PEI's] domestic edition with very little
  and not acceptable related to the distribution of a Spanish        additional revenue from the importation of this edition to
  language edition (Mexican or other) in the United States.          us. Others and I have had many conversations with Henry
                                                                     Marks and Bob O'Donnell about this move and have asked
  I have no problem with a direct Spanish translation of the
                                                                     for a definitive memo for Hef to review prior to moving
  U.S. magazine if we own it and can count the circulation
                                                                     ahead. I never received this memo.
  toward our own rate base. But I have already rejected the
  idea of a separate Spanish language edition of PLAYBOY             When distribution numbers of 50,000 to 100,000 copies
  in the U.S. as being too confusing. And I am even more             were originally mentioned Hef was enraged. He has no
  opposed to allowing some outside company [to] own and              problem with a few thousand of these copies brought into
  distribute *262 a Spanish edition (Mexican or not) here            the country just as we do with other foreign editions on
  in the U.S.                                                        foreign newsstands....
  The direct competition of a Spanish edition in the U.S.            I notice on our current Calendar of Events we have three
  with a circulation of 130,000 to 150,000, as suggested in          launch parties slated beginning in late August in Miami,
  your memo, would clearly hurt the newsstand circulation            New York and Los Angeles. I find it difficult to believe
  and advertising rate base of the U.S. magazine and that            we're going to this trouble to launch a few thousand
  impact—whether it costs us 5,000 copies or 50,000—                 magazines. Hef continues to be adamant on this point and
  makes no sense at a time when we are fighting a reduction          has dropped it back squarely in our laps.
  in newsstand outlets and sales.
                                                                     He indicated he does not have a problem with our doing
On February 7, 1997, Hefner sent the following memo to               a direct Spanish translation of the domestic edition (which
Christie:                                                            I understand has no appeal to the Hispanic market in this
                                                                     country) or he would consider a custom Spanish language
  I think it is naive to assume that distributing 100,000 copies
                                                                     edition if it were our project.
  of a Mexican edition in the United States won't have some
  impact on the newsstand sales of the U.S. edition when our       On August 21, 1997, Christie wrote to Rosenzweig regarding
  own single copy sales are often no more than 500,000.            the test entry of the Spanish language version of Playboy into
                                                                   the United States. In her memo, she stated the following, in
  With much of the celebrity pictorial and centerfold content
                                                                   part:
  the same in each issue, I'm concerned about the impact this
  will have on our rate base.                                        Hef is still having great difficulty on making the decision
                                                                     to move ahead with the Mexican edition distribution in the
  Even the loss of 5,000 or 10,000 copies a month will hurt
                                                                     U.S. He is concerned that the domestic circulation base
  us, but we'll never know, because there is really no way of
                                                                     continues to decline, we continue to lose outlets and despite
  monitoring the impact of this inappropriate competition.
                                                                     Larry's memo of August 20th he worries about the domestic
  I think this is a dumb decision done by people who do not          circulation.
  understand the fuller implications of what they are doing.
                                                                      *263 He also worries about the quality of this magazine
  This is being done despite my specific instructions to the         distributed in the U.S. and the amount of time it will take
  contrary.                                                          away from more important projects for some of our key
                                                                     people. Indeed, what it really gets down to for him are the
Throughout the year, memos continued to express the fact that        economics—is it really worth doing? As he said, if this
“Hef is very concerned about the issue of cannibalization.”          meant another two million dollars added to our bottom line



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


  it's one thing, but to do this with all of his concerns for little   the evidence “must be made in light of the jury charge that
  profit is not worth the experiment.                                  the district court gave without objection”).

Finally, at trial, John McDonald, PEI's corporate                      In reviewing the legal sufficiency of the evidence, we
representative, testified that while there was no confusion            view the evidence in the light favorable to the verdict,
about Hefner not wanting a second-language version of                  crediting favorable evidence if reasonable jurors could,
Playboy competing with Playboy in the United States,                   and disregarding contrary evidence unless reasonable jurors
because Hefner was not involved in the day-to-day operations           could not. City of Keller v. Wilson, 168 S.W.3d 802, 807
of the company, it was a matter of Christie getting him to             (Tex.2005). In conducting a legal sufficiency review, we will
listen to reason and of PEI to prove that he was wrong.                sustain a legal sufficiency point if the record reveals the
Additionally, at trial, O'Donnell testified that early in the          following: (a) the complete absence of a vital fact; (b) the
project when the major strategy change from a “front door”             court is barred by rules of law or of evidence from giving
to a “side door” approach was first presented to Christie she          weight to the only evidence offered to prove a vital fact; (c)
said okay, but she had to check with Hefner because that was           the evidence offered to prove a vital fact is no more than a
his backyard.                                                          mere scintilla; or (d) the evidence establishes conclusively the
                                                                       opposite of the vital fact. Id. at 810 (citing Robert W. Calvert,
 [11] Based on these facts, we conclude this evidence                  “ *264 No Evidence” & “Insufficient Evidence” Points of
supports the imposition of a duty on PEI to disclose to EC and         Error, 38 TEX. L.REV. 361, 362–63 (1960)). The fact finder
GSI material facts regarding Hefner's specific concerns about          is the sole judge of the credibility of the witnesses and the
cannibalization and his instructions regarding the publication         weight to give their testimony. See id. at 819.
of the Spanish language edition for U.S. distribution. Without
disclosing Hefner's position on these matters, the information         When reviewing factual insufficiency complaints, this Court
relayed to EC and GSI regarding general concerns PEI                   considers, weighs, and examines all evidence which supports
had about cannibalism and the publication of the Spanish               or undermines the finding. Golden Eagle Archery v. Jackson,
language edition for distribution in the United States was             116 S.W.3d 757, 761 (Tex.2003). The finding is set aside
not the whole truth, was misleading, or conveyed a false               only if the evidence standing alone is too weak to support the
impression. Thus, PEI's duty to disclose the material facts            finding or the finding is so against the overwhelming weight
arose in at least one, if not all, of the following situations:        of the evidence as to be manifestly unjust and clearly wrong.
when one voluntarily discloses information, he has a duty to           Id.
disclose the whole truth; when one makes a representation,
he has a duty to disclose new information when the new                  [12] Jonathan Fink, GSI's corporate representative, testified
information makes the earlier representation misleading or             that EC and GSI knew cannibalization was a concern to
untrue; and when one makes a partial disclosure and conveys            PEI, but only to the extent EC and GSI were “limited to
a false impression, he has the duty to speak. See Hoggett, 971         selling 150,000 copies.” He did not know there were concerns
S.W.2d at 487 (citing Formosa Plastics, 941 S.W.2d at 146–             in December 1996 or that in 1997 Hefner was adamantly
47).                                                                   opposed to the activity in which PEI, EC, and GSI were
                                                                       involved. Fink testified that they were not told that Hefner
                                                                       did not want a second-language edition for fear it would
                                                                       cannibalize the U.S. Playboy. O'Donnell did not tell Fink of
               2. Sufficiency of the Evidence
                                                                       the substance of Hefner's February memos; he did not tell him
Having determined that PEI owed EC and GSI the asserted                that if there was any cannibalization it would kill the deal.
duty to disclose information, we look next at PEI's contention         Fink testified that before the expected Cinco de Mayo launch,
that the evidence is legally and factually insufficient to             Playboy's representatives were very upbeat and excited about
establish that EC and GSI were ignorant of the undisclosed             the launch and were helpful in every way. Fink testified
facts, an element of fraudulent concealment set out in the             that, even with limited distribution in September, October,
jury charge. See Romero v. KPH Consol., Inc., 166 S.W.3d               and November 1997, they were still being told “everyone,
212, 221 (Tex.2005); Wal–Mart Stores, Inc. v. Sturges, 52              be calm, let's work together, we'll work this out, it's not a
S.W.3d 711, 715 (Tex.2001) (providing that an assessment of            problem, we'll go forward, we'll do more in the future.”




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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


As set out above, the evidence, including the evidence            that PEI's alleged approval of the distribution numbers in
supporting a conclusion of duty to disclose, reveals that PEI     the media kit “interfered with [their] business relations with
only generally informed EC and GSI of Hefner's concerns.          investors, advertiser, and others,” they do not identify any
While representing that cannibalism was an issue, the             such contracts, and we find no record of such contracts being
evidence establishes that PEI did not disclose to EC and GSI      presented at trial.
that Hefner was adamant about not allowing cannibalization
of the U.S. edition and that he had instructed PEI executives     EC and GSI also assert that there is evidence to support this
not to publish the Spanish language edition of Playboy            finding because PEI allegedly interfered with the contracts
(Mexican or other) unless the Spanish language edition            between EC and GSI. They rely on Sanchez's testimony that
was owned one hundred percent by PEI and the Spanish              PEI's Henry Marks encouraged Sanchez and EC to end the
language edition was an exact translation of the U.S. Playboy.    relationship with GSI. Regardless of whether such testimony
The evidence provides more than a scintilla of evidence to        could otherwise constitute evidence of interference, Sanchez
establish that EC and GSI were ignorant of the undisclosed        refused to end the relationship. Thus, no breach was induced
facts. See City of Keller, 168 S.W.3d at 810. Thus, reviewing     and no damages caused.
the evidence in the light most favorable to the verdict and
disregarding all contrary evidence that a reasonable jury         There is no evidence offered in this case to prove that
could have disbelieved, we conclude the evidence is legally       PEI interfered with any contracts between EC and GSI and
sufficient to support the jury's fraud finding. See id. at 807.   third parties, or between EC and GSI. Thus, the evidence is
                                                                  legally insufficient to support the jury's finding of tortious
Moreover, considering, weighing, and examining all                interference. See City of Keller, 168 S.W.3d at 810. We
evidence which supports or undermines the finding, we             sustain PEI's third issue.
conclude the evidence standing alone is not too weak to
support the finding or the finding is not so against the
overwhelming weight of the evidence as to be manifestly
                                                                                        IV. Fiduciary Duty
unjust and clearly wrong. See Golden Eagle Archery, 116
S.W.3d at 761. Thus, we conclude that there is factually          By its fourth issue, PEI contends that EC and GSI cannot
sufficient evidence to support this element of fraudulent         recover for breach of fiduciary duty based on a joint enterprise
concealment.                                                      or on a relationship of trust and confidence. The License
                                                                  Agreement expressly provided that the only relationship
Having concluded that PEI had a duty to disclose and that the     between PEI and EC was that of licensor-licensee; no
evidence supports the jury's finding, EC and GSI can recover      other relationship was created by the License Agreement.
for fraud on this basis. PEI's second issue is overruled.         Cf. Esquivel v. Murray Guard, Inc., 992 S.W.2d 536, 541
                                                                  (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (holding
                                                                  that the express terms of the contract precluded a finding of
              III. Tortious Interference with                     joint enterprise). Therefore, in this case, a joint enterprise or a
            Existing Contractual Relationships                    confidential relationship must have been established outside
                                                                  of the License Agreement.
 [13] [14] In issue three, PEI argues that there is no evidence
that it interfered *265 with any contracts between EC and
GSI and third parties. We agree. “A tortious interference
                                                                                    A. Joint Enterprise
cause of action is established if the plaintiff proves: (1)
the existence of a contract subject to interference; (2) a       [15]     [16] The jury found that PEI engaged in a joint
willful and intentional act of interference; (3) the act was    enterprise with EC, GSI, or both. The charge instructed the
a proximate cause of the plaintiff's damages; and (4) actual    jury as follows:
damage or loss resulted.” Friendswood Dev. Co. v. McDade
+ Co., 926 S.W.2d 280, 282 (Tex.1996). In this case, we                      A joint enterprise exists if the
find no evidence, and EC and GSI refer us to none, that                      persons concerned have: (1) an
supports a finding that PEI interfered with contracts between                agreement, express or implied, among
EC and GSI and third parties. Although EC and GSI assert                     the members of the group; (2) a



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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


            common purpose to be carried out                      transform arms-length dealings into a fiduciary relationship.
            by the group; (3) a community of                      Schlumberger, 959 S.W.2d at 177; see Garrison Contractors,
            pecuniary interest in that purpose,                   Inc. v. Liberty Mut. Ins. Co., 927 S.W.2d 296, 301 (Tex.App.-
            among the members; and (4) an equal                   El Paso 1996), aff'd, 966 S.W.2d 482 (Tex.1998) (providing
            right to a voice in the direction of the              that allegations that the defendant had promised to “take care
            enterprise, which gives an equal right                of,” “look out for,” and was “working for” the plaintiff were
            of control.                                           insufficient as a matter of law to establish a relationship of
                                                                  trust and confidence). The testimony in this case establishes
There is no evidence, however, establishing that an               that the parties had, at most, a friendly working relationship.
agreement, express or implied, existed outside the                The License Agreement did not create a relationship of
License Agreement. Moreover, even assuming the License            trust and confidence, and there were no other circumstances
Agreement provided the basis for EC's and GSI's position,         creating any such special relationship between PEI and EC
a joint enterprise cannot exist as a matter of law between        and/or GSI. See Trans. Ins. Co. v. Faircloth, 898 S.W.2d 269,
a licensee who has a pecuniary interest in profits and a          280 (Tex.1995) (“A fiduciary or confidential relationship
licensor who has a pecuniary interest only in royalties since     may arise from circumstances of the particular case, but it
the necessary community of pecuniary interest in a common         must exist prior to, and apart from, the agreement made
purpose is lacking. See St. Joseph Hosp. v. Wolff, 94 S.W.3d      the basis of the suit.”). Although Sanchez had an ongoing
513, 527–28 (Tex.2002) (“Although the [franchisors] stand         business relationship with PEI, this, also, is insufficient as a
to benefit financially from the successful *266 downstream        matter of law. See Crim Truck & Tractor Co. v. Navistar Int'l
marketing of their goods or services, their interests in those    Transp. Corp., 823 S.W.2d 591, 595 (Tex.1992) ( “Neither
activities are not held in ‘community’ with the [franchisees]     is the fact that the relationship has been a cordial one,
because they are not shared ‘without special or distinguishing    of long duration, evidence of a confidential relationship.”).
characteristics.’ ”). 8 Here, PEI's compensation under the        Accordingly, we conclude the evidence is legally and
License Agreement was solely in the form of royalties,            factually insufficient to establish that a relationship of trust
precluding any finding of joint enterprise. Thus, we conclude     and confidence existed between PEI and EC or GSI or both.
the evidence is legally and factually insufficient to establish
a joint enterprise imposing a fiduciary duty on PEI.

                                                                                         C. Partnership

         B. Relationship of Trust and Confidence                 [19] [20] [21] EC and GSI also argue that they pleaded
                                                                that they were in a partnership with PEI, that PEI did not
 [17] [18] The jury also found that a relationship of trust file a verified denial, and that under Texas Rule of Civil
and confidence existed between PEI and EC or GSI or both.       Procedure 93(5) a partnership was created by default; thus, it
The jury was instructed as follows:                             created a fiduciary relationship. See TEX.R. CIV. P. 93(5).
                                                                However, rule 93 does not apply here. From pleadings filed
            A relationship of trust and confidence              by EC and *267 GSI, it is clear they are asserting a
            existed if [EC or GSI] justifiably                  special relationship of trust or confidence or a joint enterprise,
            placed trust and confidence in [PEI]                not a true partnership, even though the language in the
            to act in the best interests of [EC                 pleading asserts that they were in a “joint venture, joint
            or GSI]. [EC's or GSI's] subjective                 enterprise, or partnership” with PEI. A partnership requires
            trust and feelings alone do not justify             an agreement to share profits. Schlumberger, 959 S.W.2d
            transforming arm's-length dealings                  at 176. However, their pleadings acknowledge that PEI was
            into a relationship of trust and                    to receive “royalties arising from the business activities
            confidence.                                         of Editorial and Grupo Siete,” not profits. The License
                                                                Agreement referenced in the pleadings also makes clear that
There is, however, no evidence of such a relationship.
                                                                PEI was entitled to royalties, not profits. Moreover, EC and
Sanchez testified that he “trusted” PEI and that their business
                                                                GSI requested jury questions on special relationship and joint
dealings were always conducted “in the most friendly
                                                                enterprise, not partnership. Where the pleadings as a whole
manner.” Fink similarly testified that he trusted PEI and that
                                                                reflect that a party—while using the term “partnership”—
“everyone was great friends.” But subjective trust does not


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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


is in fact asserting a different relationship not covered by          support the jury's finding of *268 wrongful disparagement.
the rule, that rule does not apply. See Zarsky Lumber Co.             See City of Keller, 168 S.W.3d at 810. PEI's fifth issue is
v. Guiberteau, 270 S.W.2d 630, 632 (Tex.Civ.App.-San                  sustained.
Antonio 1954, writ ref'd n.r.e.) (“[I]n view of all the facts
plead[ed] herein, [the allegation] is one of joint adventure and
not of partnership, and allegations of joint adventure do not
                                                                                             VI. Damages
have to be denied under oath.”); see also Cantu v. Holiday
Inns, Inc., 910 S.W.2d 113, 116–17 (Tex.App.-Corpus Christi           The jury awarded EC and GSI $3,600,000 for out-of-pocket
1995, writ denied) (providing that pursuant to the “of record”        expenses, $500,000 for liabilities incurred, and $260,000 for
exception in rule 93, a matter established by evidence in             lost profits in the Mexico market. The judgment ordered that
the trial court record appears “of record,” so no verified            EC and GSI should have and recover the sum of $4,360,000.
denial is needed). Because joint enterprise and special trust
relationships are not covered by rule 93, this rule does not
apply, and the argument fails.
                                                                                     A. Collective Damage Award
Having determined that there is no evidence to establish that         By its sixth issue, PEI first contends that the collective
a joint enterprise or a relationship of trust and confidence          damages award is independently barred as a matter of
existed between PEI and EC or GSI or both, we conclude EC             law because the jury did not determine EC's damages and
and GSI cannot recover for breach of fiduciary duty based on
                                                                      GSI's damages separately. 10 Construing this contention as a
such relationships. We sustain PEI's fourth issue.
                                                                      challenge to the jury charge, the standard of review is abuse
                                                                      of discretion which “occurs only when the trial court acts
                                                                      without reference to any guiding principle.” Tex. Dep't of
                V. Wrongful Disparagement                             Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990).

 [22] By its fifth issue, PEI contends that there is no evidence
of wrongful disparagement. “The general elements of a claim
for business disparagement are publication by the defendant                             1. Preservation of Issue
of the disparaging words, falsity, malice, lack of privilege,
                                                                      We first address the contention raised by EC and GSI that PEI
and special damages.” Hurlbut v. Gulf Atl. Life Ins. Co., 749
                                                                      did not preserve this issue for our review. “A party must make
S.W.2d 762, 766 (Tex.1987). The jury found for EC and GSI
                                                                      the trial court aware of the complaint, timely and plainly,
on this claim and awarded damages in the amount of $260,000
                                                                      and obtain a ruling.” In the Interest of B.L.D., 113 S.W.3d
for lost profits in Mexico, $0 in the United States, and $0 in
                                                                      340, 349 (Tex.2003) (citing State Dep't of Highways & Pub.
Latin America.
                                                                      Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992)).
 [23] To support this wrongful disparagement claim, EC
                                                                       [24] At the charge conference, PEI objected “to those
and GSI rely on the information in the media kit prepared
                                                                      damage questions being submitted together. There is only one
by GSI and allegedly approved by PEI. EC and GSI argue
                                                                      blank to put in total damages for both of those parties, and
that, through the media kit, PEI published false statements
                                                                      we would object to that as it should be separated out.” The
to third parties; false statements that damaged their business.
                                                                      trial court overruled PEI's objection. PEI's complaint was that
The media kit, however, contained only inflated circulation
                                                                      EC and GSI are separate parties and their damages should be
numbers for the United States, not Mexico circulation
                                                                      determined separately. We conclude that, with its objection,
numbers. The media kit did not address business in Mexico,
                                                                      PEI made the trial court aware of its complaint, timely and
which is the only market for which the jury found lost profits.
                                                                      plainly, and obtained a ruling. See id. Thus, PEI preserved
The media kit related only to distribution in the United States,
                                                                      error for our review.
and the jury found no lost U.S. profits. 9 Representations
in the media kit cannot, therefore, support disparagement
damages in the form of lost profits in Mexico. We conclude,
therefore, that there is no evidence offered in this case to prove                2. Separate or Collective Damages
this vital fact, and the evidence is, thus, legally insufficient to


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Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


 [25] To support its position that separate, not collective
damages, if any, should have been awarded, PEI relies on
                                                                                  B. Out–of–Pocket Damages
Minn. Mining and Mfg. Co. v. Nishika Ltd., 953 S.W.2d
733, 738–39 (Tex.1997), and Mullen v. Roberts, 423 S.W.2d          [26] PEI next contends there is no legally or factually
576, 578–79 (Tex.1968). However, Nishika and Mullen are           sufficient evidence to support the jury's award of $3,600,000
distinguishable from the present case and do not support this     for out-of-pocket expenses, described in the jury questions as
contention.                                                       “[t]he amount of money spent by [EC and GSI] in reliance
                                                                  on the promises made by [PEI].” PEI complains that while
In Nishika, the supreme court certified to the Minnesota          the jury awarded $3,600,000 to EC and GSI as out-of-pocket
Supreme Court the question of whether the Nishika plaintiffs      expenses, their economic expert, Gilberto de los Santos,
could recover damages jointly as a single economic unit. See      testified that EC and GSI incurred out-of-pocket expenses
Nishika, 953 S.W.2d at 738. The Minnesota Supreme Court           in the aggregate amount of $2,703,971. Thus, PEI argues
held that they could not under Minnesota law. See id. That        that this is no evidence to support the jury's higher verdict
court, however, left *269 open for the Texas courts the           award of $3,600,000. It further asserts that the evidence
procedural question of whether altering the damages award         to support even the $2,703,971 amount, including de los
or a new trial was appropriate. See id. Therefore, the issue in   Santos's testimony and that offered by Fink, is legally and
Nishika was not whether the plaintiffs could recover damages      factually insufficient evidence because it is conclusory and
jointly but whether the court should render or remand the         based on flawed methodology and unreliable data, or refers
case for a determination of proper damages. See id. Nishika
                                                                  to Group Seven's out-of-pocket expenses, 11 perhaps not
provides no support for PEI in this instance.
                                                                  even related to the Playboy project, not GSI's expenses. PEI
                                                                  also contends Fink's testimony cannot constitute evidence
In Mullen, the Texas Supreme Court concluded “the judgment
                                                                  of out-of-pocket damages because he testified only about
should not be for an aggregate sum but should segregate and
                                                                  the amount allegedly invested by GSI, without regard to
award to each the damages or relief to which he is properly
                                                                  offsetting revenues that were generated.
entitled.” Using the Mullen court's analysis, however, we
reach a different result in this case. See Mullen, 423 S.W.2d
                                                                  However, EC and GSI did provide some evidence of out-
at 579. The joint damage award and judgment in favor of
                                                                  of-pocket expenses through their expert who testified as to
EC and GSI conform with the pleadings, thus distinguishing
                                                                  “publishing rights” expense, GSI's expenses and investments
our facts from those in Mullen where the judgement did
                                                                  in the project, EC's out-of-pocket expenses, and profit and
not conform with the pleadings. Cf. id. The cross-claim and
                                                                  loss histories. He relied on financial statements provided
third party petition filed by EC and GSI specifically set out
that “it is brought by [EC] and [GSI], jointly, against [PEI]     to him by Fink, 12 conversations with Fink, and records
based upon [PEI's] unjustified, improper, illegal, intentional,   entered into evidence. Fink *270 also testified that GSI
fraudulent, and negligent conduct, causing huge financial         brought in $4,000,000 in financing 13 and did not count on
losses and potential economic ruin to [EC] and [GSI].” No         having to “use it all up just to stay in business to put out
claim or cause of action was asserted severally. Neither EC       a Playboy magazine without enough copies to make any
nor GSI claimed damages in separate sums on the alleged           money.” Without referring to supporting documentation, Fink
causes of action. Cf. id. at 578. Additionally, Texas Rule of     testified that money was spent on launch parties, upgrading
Civil Procedure 40 authorizes the joinder in one action of        facilities, flying people back and forth, building a staff, and
multiple plaintiffs asserting any right to relief jointly. See    other business activities. He also testified that the company
TEX.R. CIV. P. 40; see also Mullen, 423 S.W.2d at 578.            invested at least $2,500,000 in the business venture.

Accordingly, acting with reference to the above guiding           Based on the above, we conclude that there is legally
principles, we cannot conclude the trial court abused its         sufficient evidence that EC and GSI suffered some out-of-
discretion in not charging the damages separately. See E.B.,      pocket damages as a result of PEI's fraud, although there is
802 S.W.2d at 649.                                                no probative evidence supporting the entire amount of out-
                                                                  of-pocket damages awarded. See City of Keller, 168 S.W.3d
                                                                  at 810.




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                                                                  S.W.2d 41, 49 (Tex.1998)). “Benefit-of-the-bargain damages
                                                                  are the difference between the value as represented and the
                   C. Liabilities Incurred
                                                                  value received.” Id. “Out-of-pocket damages compensate a
In addition to the $3,600,000 awarded for out-of-pocket           defrauded party for the difference between the value of that
expenses, the jury awarded damages for liabilities incurred by    with which he or she has parted and the value actually
EC or GSI in reliance on PEI's promises. PEI contends that        received.” Id. We have already concluded that there is legally
the $500,000 award for liabilities incurred is duplicative of     sufficient *271 evidence to support an award for out-of-
the out-of-pocket expenses award because it is included in the    pocket expenses in this case. Therefore, to the extent the jury's
$3,600,000 award. Alternatively, PEI urges that the evidence      award is for lost profits in the Mexico market, this award is
is legally and factually insufficient to support this award for   an alternative measure of damages. 14
liabilities incurred.

 [27] De los Santos recognized that “out-of-pocket expenses”
                                                                                   2. Consequential Damages
necessarily included amounts borrowed from third parties
and then spent on the PEI project. Therefore, to the extent        [29]      [30]      “When properly pleaded and proved,
“liabilities incurred” included moneys borrowed from third        consequential damages that are foreseeable and directly
parties and spent on the PEI project in this case, such award     traceable to the fraud and result from it might be recoverable.”
constitutes a double recovery and should be disregarded.          Formosa Plastics, 960 S.W.2d at 49 (citing Arthur Andersen
See Waite Hill Servs. v. World Class Metal Works, 959             & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817
S.W.2d 182, 184–85 (Tex.1998) (per curiam). However, the          (Tex.1997)). “It is possible that, in the proper case,
evidence also shows that Paramo, GSI's editor-in-chief, was       consequential damages could include foreseeable profits from
owed $111,000, a salary amount set out in a contract for          other business opportunities lost as a result of the fraudulent
his services. The $111,000 was not money borrowed and             misrepresentation.” Id.
then spent on the PEI project. It was a liability incurred; a
liability supported by the evidence. We conclude this amount       [31] In their petition, EC and GSI sought “recovery
would not constitute a double recovery. Moreover, PEI notes       against [PEI] for all damages they have sustained by their
that the records provided by EC and GSI establish that,           fraud and other wrongful conduct, that is their substantial
at most, $125,000 went to GSI (of which only $89,000              business losses, lost profits, loss of credibility and profits
was invested in EC). Thus, we conclude there is legally           in other ventures, and other related damages.” EC and GSI
sufficient evidence that EC and GSI suffered some damages         prayed for actual damages, any and all out-of-pocket losses
for liabilities incurred as a result of PEI's fraud, although     or expenditures, and any and all lost profits/lost business
there is no probative evidence supporting the entire amount       opportunity damages, both with respect to the publication
awarded for liabilities incurred. See City of Keller, 168         at issue and with respect to other business ventures and
S.W.3d at 810.                                                    relationships. Construing the pleadings liberally, we conclude
                                                                  consequential damages in the form of foreseeable profits
                                                                  from other business opportunities lost as a result of the
                       D. Lost Profits                            fraudulent misrepresentation were properly pled. See id.
                                                                  Thus, this element of damages based on the fraud claim may
                                                                  have been recoverable in this case. PEI does not challenge
                     1. Direct Damages                            the sufficiency of the evidence to support an award of
                                                                  consequential damages for lost profits, if any. Therefore, that
 [28] PEI asserts that because lost profits and out-of-pocket
                                                                  issue is not before us.
expenses are remedies constituting alternative measures of
damages, the jury's award of $260,000 for lost profits in the
Mexico market cannot stand. The two alternative measures of
damages are benefit-of-the-bargain (lost profits) and out-of-                 E. Disposition Regarding Damages
pocket measures. See Fortune Prod. Co. v. Conoco, Inc., 52
S.W.3d 671, 681 (Tex.2000) (citing, e.g., Formosa Plastics         [32] While there is no probative evidence supporting the
Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960           entire amount of damages awarded by the judgment, there
                                                                  is legally sufficient evidence that EC and GSI suffered


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            17
Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


some damages as a result of PEI's fraud. Because PEI                [33] By its eleventh issue, PEI contends it is entitled to
contested the *272 issue of damages, we cannot render              new judgment interest rates if any part of the judgment is
judgment for a lesser dollar amount. See Formosa Plastics,         affirmed. PEI argues that amended section 304.003 of the
960 S.W.2d at 49. Instead, we sustain issue six, reverse           Texas Finance Code which lowers the post-judgment interest
the trial court's judgment regarding the fraud claim, and          floor to five percent should apply to the judgment in this
remand for a new trial on liability and damages related to this    case. See TEX. FIN.CODE ANN. § 304.003(c) (Vernon
claim. See Fortune, 52 S.W.3d at 682 (Tex.2000) (holding           Supp.2005) (providing for post-judgment interest rate of five
that where there is evidence of some fraud damages, but            percent a year if prime is less than five percent).
there is no evidence to support the full amount of damages
found by the jury, remand for a new trial is the appropriate       House Bill 4 and House Bill 2415, the bills that amended
remedy); Formosa Plastics, 960 S.W.2d at 51 (holding that          section 304.003, 15 set out that the revisions apply to a case
appellate court can remand for new trial when no evidence          in which “a final judgment is signed or is subject to appeal
supports damages awarded but there is evidence of some             on or after the effective date” of the acts. Bic Pen Corp. v.
damages); Texarkana Mem'l Hosp. v. Murdock, 946 S.W.2d             Carter, 171 S.W.3d 657, 677 (Tex.App.-Corpus Christi 2005,
836, 841 (Tex.1997) (holding because plaintiffs presented          pet. filed) (quoting Act of June 2, 2003, 78th Leg., R.S., H.B.
legally sufficient evidence that some of the damages resulted      4, *273 § 6.04 (H.B. 4); Act of June 2, 2003, 78th Leg.,
from the complained of conduct, they should be afforded            R.S., ch. 676, § 2(a) (H.B. 2415)). “The provisions therefore
an opportunity to develop this evidence further); Rente Co.        apply if the judgment in this case was signed on or after the
v. Truckers Express, Inc., 116 S.W.3d 326, 335 (Tex.App.-          effective date of either act, or if the judgment became subject
Houston [14th Dist.] 2003, no pet.) (finding evidence legally      to appeal, that is, capable of being appealed, on or after the
insufficient to support award, but sufficient to show plaintiff    effective date of the act.” See id. at 677–78 (citing SunBridge
suffered some damage, court reversed and remanded for a            Healthcare Corp. v. Penny, 160 S.W.3d 230, 255 (Tex.App.-
new trial on liability and damages); but see Springs Window        Texarkana 2005, no pet.); see also City of Dallas v. Redbird
Fashions Division, Inc., v. The Blind Maker, Inc., 184             Dev. Corp., 143 S.W.3d 375, 388–89 (Tex.App.-Dallas 2004,
S.W.3d 840, 889 (Tex.App.-Austin 2006, pet. filed) (holding        no pet.); Columbia Med. Ctr. of Las Colinas v. Bush, 122
legally and factually insufficient evidence to support award,      S.W.3d 835, 865 (Tex.App.-Fort Worth 2003, pet. denied)).
but sufficient evidence to support some of the award and
suggesting a remittitur sua sponte ). See also TEX.R.APP.          The effective date of September 1, 2003, for House Bill 4 is
P. 44.1(b) (appellate court may not order separate trial solely    not in dispute, and we have recently determined that House
on unliquidated damages if liability is contested); Johnston v.    Bill 2415 also became effective on that date. See id. at 678–
McKinney Am., Inc., 9 S.W.3d 271, 284 (Tex.App.-Houston            79. The judgment in this case was signed and also became
[14th Dist.] 1999, pet. denied) (stating appellate courts cannot   capable of being appealed on October 24, 2002. See id. at 678.
remand as to damages only).                                        That date controls the application of section 304.003(c) in this
                                                                   matter. See TEX. FIN.CODE ANN. § 304.003(c) (Vernon
We decline to suggest a remittitur as urged, in the alternative,   Supp.2005). Therefore, because the judgment was not signed
by PEI. Remittitur is not appropriate because we are               on or after the effective date of the acts and because it did
remanding for a new trial on liability and damages regarding       not become subject to appeal on or after the effective dates of
the fraud claim. See TEX.R.APP. P. 44.1(b); see also Rente,        the acts, neither House Bill 4 nor House Bill 2415 applies to
116 S.W.3d at 335. Moreover, in the context of this case,          the judgment in this case. PEI is not entitled to new judgment
we conclude that the interests of justice require a remand for     interest rates. We overrule the eleventh issue.
another trial on the fraud claim and damages related to that
claim. See TEX.R.APP. P. 43.3(b) (providing that appellate
court may remand for another trial when interests of justice
require); Johnston, 9 S.W.3d at 284 (same).                                             VIII. Exhibit 248A

                                                                   In its seventh issue, PEI complains that the trial court erred
                                                                   when it inadvertently failed to provide exhibit 248A to
          VII. Pre- and Post–Judgment Interest                     the jury during deliberations. The exhibit was a sixteen-
                                                                   page transcript of direct testimony provided by Siegel in a
                                                                   separate California lawsuit. 16 In that case, Siegel testified


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            18
Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


that lack of funding from Admiral Capital Corporation, an            opportunities to raise capital. The following exchange was
investor in Group Seven, GSI's parent corporation, caused the        also read to the jury:
failure of the PEI project. Because Siegel's testimony directly
contradicted allegations in the present lawsuit that PEI caused        Q: As a result of the failure of Admiral to make the
the project to fail, PEI contends the trial court erred in failing     additional investment in Group Seven, how has Group
to send the requested exhibit to the jury room.                        Seven been damaged?

                                                                       A: The Playboy license was terminated because of lack of
The trial court, however, did not refuse to provide the exhibit
                                                                       funding.
to the jury as required by rule 281. See TEX.R. CIV. P.
281 (providing that “[t]he jury may, and on request shall,           Thus, the jury was aware of Siegel's statements regarding
take with them in their retirement ... any written evidence”);       Admiral's involvement in the matter.
see also First Employees Ins. Co. v. Skinner, 646 S.W.2d
170, 172 (Tex.1983) (holding rule 281 “is mandatory and ...          In addition, when called to testify in this case, Fink, GSI's
the trial court is required to send all exhibits admitted into       corporate representative, was asked questions about the
evidence to the jury room during the deliberations” even             California lawsuit and Admiral's agreement with Group
in the absence of a requests by jurors or counsel). The bill         Seven to provide investment monies for a variety of projects.
of exception signed by the trial court set out that when the         Fink testified that the purpose of raising money from Admiral
first and second questions came out from the jury asking for         was to provide extra funding for the company ... because it
Siegel's testimony, the trial court met in chambers with all         was “starting to run short of its cash, based on the projections
attorneys regarding the exhibit. Assuming that the jurors had        of ... its time line [to launch the magazine] starting to get
all exhibits and after identifying the exhibit that contained        stretched out.” In further questioning of Fink, PEI counsel
the requested information as number 248A, the trial court            also read the following:
informed the jurors that the material they were seeking
was contained in exhibit 248A, an exhibit which had been                          As set forth in the accompanying
admitted into evidence. There is no indication in the record                      declaration of Bob Byer[, GSI's
that, after receiving that information, the jurors informed the                   director, secretary and treasurer,]
trial court that the exhibit was not found. Based on these facts,                 based on Admiral's conduct, Group
we cannot conclude that the action of the trial court was error.                  Seven has lost the licenses held with
                                                                                  Playboy.... Admiral failed to fully
 *274 [34] Moreover, even assuming the trial court erred                          fund its 2.1 million equity obligation
in inadvertently failing to send exhibit 248A to the jury                         causing Group Seven damages in
room upon request, we conclude from an examination of                             excess of those sought by Admiral.
the entire record that reversible error is not shown. See                         Group Seven is now involved in
TEX.R.APP. P. 44.1(a). During the trial, both counsel for                         litigation with ... Playboy ... as set
EC and counsel for PEI had an opportunity and did, in fact,                       forth in the Siegel declaration. The
read excerpts from exhibit 248A, Siegel's California trial                        lack of admiral funding has prevented
testimony, into the record. The jury heard the excerpts read                      the ... publishing and distributing
at the time the exhibit was introduced into evidence. EC's                        the company's ... Spanish language
counsel read testimony concerning how, after entering into                        Playboy through the [GSI] subsidiary
an agreement with Admiral for funding, its president wanted                       to the Hispanic marketplace in the
a change of terms and conditions. This was not acceptable                         United States and throughout Central
to Siegel who then asked for a release from the agreement                         and South America. The lack of
so that he could pursue other financing which was at that                         funding has deleteriously impacted
time “surely needed.” PEI's counsel also read excerpts that                       Group Seven's relationship.
provided information regarding the success of Group Seven
through 1997 and statements that the success would have              Based on the above, the exhibit at issue was cumulative
been much greater had Admiral funded as agreed. From the             of other evidence the jury considered. Therefore, even if
excerpt read by PEI's counsel, Siegel testified that, because of     the exhibit had been excluded from the jury's deliberations
the exclusivity of the agreement with Admiral, he lost other         at trial, a new trial would not be ordered. See Interstate



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              19
Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


                                                                   “precludes a party from asserting a position in a legal
Northborough P'ship v. State, 66 S.W.3d 213, 227 (Tex.2001)
                                                                   proceeding inconsistent with a position taken by that party in
(holding error in the admission or exclusion of evidence is
                                                                   the same or a prior litigation”). Interestingly, our review of the
harmless if cumulative). The error was not such as would
                                                                   record reveals that PEI, itself, argued that EC and GSI should
probably cause the rendition of an improper judgment or
                                                                   be realigned as plaintiffs in that same earlier proceeding in
prevent PEI from presenting its case to this Court. See
                                                                   an effort to remove the case to federal court. Thus, using this
TEX.R.APP. P. 44.1(a). PEI's seventh issue is overruled.
                                                                   analysis, PEI, too, should be estopped from taking its present
                                                                   position on this issue. Under the facts of this case, we cannot
                                                                   conclude this argument supports PEI's position. We overrule
      IX. Realignment of EC and GSI as Plaintiffs                  this eighth issue.

 [35] By its eighth issue, PEI contends the trial court
improperly realigned EC *275 and GSI as plaintiffs for
purposes of final argument because Gongora was the primary                    X. Breach of Contract and Excuse 17
plaintiff and because PEI, EC, and GSI were all equally
positioned as defendants/cross-plaintiffs. Texas Rules of          By its first issue, PEI contends that EC and GSI cannot
Civil Procedure 266 and 269(a) provide for a party's right         recover for breach of the License Agreement. PEI also
to open and close argument. See TEX.R. CIV. P. 266,                contends, by its ninth issue, that EC and GSI, as EC's
269(a). Rule 266 begins with the following words: “Except          assignee under the License Agreement, are liable for breach
as provided in Rule 269 the plaintiff shall have the right         of contract as a matter of law and that there is no evidence
to open and conclude both in adducing his evidence and             that EC's failure to comply with the License Agreement was
in the argument.” Id. at rule 266. Rule 269(a) sets out, in        excused. However, because of our disposition of the fraud
effect, that the party having the burden of proof of the whole     issue and the interrelated nature of the breach of contract
case or on all matters which are submitted by the charge           and fraud claims, we will not address these contentions at
shall be entitled to open and conclude the argument. Id. at        this time. See TEX.R.APP. P. 43.3(b) (“When reversing a
rule 269(a). It also provides “where there are several parties     trial court's judgment, the court must render the judgment
having separate claims or defenses, the court shall prescribe      that the trial court should have rendered, except when ... the
the order of argument between them.” Id. In this case, as          interests of justice require a remand for another trial.”); id.
noted by PEI above, Gongora was the primary plaintiff and          at rule 47.1 (setting out that a written opinion must be as
PEI, EC, and GSI were all equally positioned as defendants/        brief as practicable addressing every *276 issue raised and
cross-plaintiffs; thus, there were several parties with separate   necessary to final disposition of the appeal).
claims or defenses. The trial court shall prescribe the order of
argument in such a case. See id. Thus, the trial court did not
err in allowing EC and GSI to open and close final argument.                               XI. Conclusion

PEI also asserts this alleged error is particularly egregious      Accordingly, we reverse the trial court's judgment, in part,
because, when the case was earlier removed to federal              and render judgment that EC and GSI take nothing on
court, EC and GSI strenuously argued that they should not          their tortious interference, fiduciary duty, and wrongful
be realigned as plaintiffs for purposes of federal removal         disparagement claims. We reverse the judgment of the trial
jurisdiction. It claims the trial court should have held that      court, in part, and remand the parties' fraud claims to the trial
EC and GSI were estopped and otherwise should have been            court for a new trial. In the interest of justice, we also remand
precluded from arguing that they should be realigned as            the parties' contract claims to the trial court for a new trial.
plaintiffs after the case was remanded to state court. See         See id at rule 43.3(b).
Gen. Agents Ins. Co. v. Home Ins. Co., 21 S.W.3d 419, 427
(Tex.App.-San Antonio 2000, pet. dism'd) (judicial estoppel


Footnotes




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              20
Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


1      Eduardo Gongora, who is in the business of selling and soliciting advertisements for products in different forms of media, sued PEI,
       EC, and GSI for failing to publish a Spanish language edition of Playboy in Mexico and to distribute it in the United States. Gongora
       lost on all of his claims in the trial court and is not a party to this appeal.
2      The trial court set out in its judgment that the following jury findings should be disregarded as immaterial findings or incomplete
       submissions: (1) EC failed to comply with the License Agreement; (2) EC and/or GSI failed to comply with the Renegotiated Payment
       Plan; (3) EC committed fraud against PEI; (4) GSI committed fraud against PEI; and (5) EC and/or GSI failed to comply with the
       terms of the asset purchase agreement and other contracts executed between them.
3      The Spanish language version of the magazine is titled Playboy Un Estilo De Vida.
4      Javier Sanchez Campuzano (Sanchez), EC's president and principal, signed the License Agreement on behalf of EC. GSI was EC's
       assignee of the U.S. distribution rights to the Spanish language version of Playboy. Paul Siegel was GSI's principal. It is undisputed
       that GSI assumed EC's obligations under the License Agreement and expressly agreed to be bound by the License Agreement's terms
       and conditions.
5      “Cannibalization” is described, in this case, as hurting the U.S. sales of PEI's English-language version by distributing a Spanish
       language edition in the United States and as head to head competition with the U.S. Playboy.
6      While the Texas Supreme Court has not yet adopted section 551 of the second restatement of torts that is the basis for a general
       duty to disclose facts in a commercial setting, it has acknowledged that several courts of appeals have held a general duty to disclose
       information may arise in an arm's length business transaction when a party makes a partial disclosure that, although true, conveys
       a false impression. See Bradford v. Vento, 48 S.W.3d 749, 755–56 (Tex.2001) (citing RESTATEMENT (SECOND) OF TORTS S
       S S S S § 551 (1977); Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex.App.-Houston [14th Dist.] 1997, pet. denied); Ralston Purina
       Co. v. McKendrick, 850 S.W.2d 629, 633–36 (Tex.App.-San Antonio 1993, writ denied)); see also SmithKline Beecham v. Jane Doe,
       903 S.W.2d 347, 352 (Tex.1995).
7      During October 1996, O'Donnell faxed the following internal memo to Siegel and Sanchez. Among other things, O'Donnell wrote,
             Hef's direction was that while Spanish language might be an OK idea, there can be only one U.S. Playboy. All we could do was
             to create an exact high quality translation of USPB. As this would have been in our minds the absolute worst approach to take,
             (image, cannibalization and relevance), I decided to look at the side door with the front door now barred.
             I set up a meeting between the President of Sports Time, Paul Siegel, and our Mexican Publisher, Javier Campuzano, whose
             license was up for renewal at the end of this year, and who, with the economic crisis in Mexico, was having cash flow and
             payment problems and was trying to sell assets to raise money.
             The basic purpose was to explore the concept of using cash that Sports Time could raise to invest in (1) upgrading the quality
             of the core Mexican Edition and support its recovery parallel with economic stabilization (2) creation of local market tailored
             versions of the edition for export to other Spanish speaking markets of South/Central America, (not large or yet strong enough
             for their own editions), and (3) do a U.S. Hispanic targeted version as soon as we could develop an acceptable positioning and
             pass the quality test.
8      EC and GSI argue that this case is distinguishable from St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 527–28 (Tex.2002), because PEI
       retained rights to approve the quality of the Spanish Language edition. Such approval rights, however, do not distinguish Wolff. See
       id. at 528 (explaining that “both parties to an agreement may have ‘a common business interest,’ ‘a common pecuniary interest,’ or
       both, despite lacking a community of pecuniary interest in the purpose”).
9      EC and GSI do not complain on appeal of the failure of the jury to award any money for lost profits in the United States market.
10     “FOR GSI” was written beside the $500,000 liabilities award and “FOR EDITORIAL” beside the $260,000 lost profits award.
       However, “[a] jury's marginal notations generally may not be considered on appeal.” Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d
       322, 328 (Tex.1993); see Thomas v. Oldham, 895 S.W.2d 352, 359 (Tex.1995) (setting out that an appellate court “cannot consider
       the margin notations as separate damage awards for purposes of evidentiary review”); First Nat'l Bank in Dallas v. Zimmerman, 442
       S.W.2d 674, 678 (Tex.1969) (providing that the jury's “handwritten notation was not the jury's verdict; it merely reflected the jury's
       mental processes in arriving at their verdict.... The jury's reasons for reaching a particular verdict are irrelevant, at least in the absence
       of some overt act of misconduct.”). Therefore, as the parties do not argue differently, for purposes of our review, we will not consider
       the margin notations as separate damage awards.
11     Group Seven is GSI's parent company.
12     PEI also challenges the use of unaudited statements provided by Fink, statements PEI asserts had no bases in reality.
13     PEI asserts that Fink is referring not to GSI but to its parent company, Group Seven.
14     PEI asserts there is no evidence of lost profits in the Mexico market. PEI complains that the only lost profits testimony came from de
       los Santos, whose testimony PEI contends is “wholly speculative and out of touch with reality.” In this case, however, the evidence
       includes a table showing EC's profits from 1989 until 1998. While net losses are shown in 1994 and from 1996 to 1998, net profits
       are shown from 1989 to 1993 and in 1995, with the greatest net profit of $2.5 million in 1990. De los Santos used information from



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                             21
Playboy Enterprises, Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250 (2006)


       past development and existing conditions, economic indicators, and market and industry data to develop his opinions regarding lost
       profits. While the two-month baseline of actual production upon which he based his projected future revenues in Mexico is a relatively
       short period of time, it is a corresponding period of time upon which de los Santos could obtain data. Among other things, de los
       Santos utilized increases in monthly sales and increases in the target population of men, ages 20–59, to determine lost profits. From
       this data, lost profits may be ascertained with a reasonable degree of certainty and exactness.
          It is unclear, however, how the jury determined lost profits in Mexico, apart from lost profits in the United States, Puerto Rico,
          Venezuela, and the Conosur Region. When de los Santos transformed his revenue projections into profit projections, he did not
          specifically calculate lost profits for Mexico. Rather, his projections referenced the aggregate lost profits for Mexico, the United
          States, Puerto Rico, Venezuela, and the Conosur Region. Although the evidence does not support the specific award of lost damages
          the jury made, we conclude there is legally sufficient evidence that EC and GSI suffered some damages for lost profits in Mexico
          that were incurred as a result of PEI's fraud. See City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005).
15     “House Bills 4 and 2415 amended section 304.003(c) of the finance code, reducing the effective post-judgment interest rate from
       ten to five percent.” Bic Pen Corp. v. Carter, 171 S.W.3d 657, 677 (Tex.App.-Corpus Christi 2005, pet. filed) (citing Act of June 2,
       2003, 78th Leg., R.S., H.B. 4, § 6.04 (H.B. 4); Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 2(a) (H.B. 2415)).
16     See Admiral Capital Corp. v. Group Seven Communications, Inc., Paul Siegel, Robert Byer, and Jonathan Fink, No. SACV 99–
       00198–DOC(EEx) (U.S. D. for the W. Div. C.D. of Cal., April 1, 1999).
17     Without additional briefing, PEI identifies in the “Issues Presented” section of its brief a tenth issue; that the evidence is legally
       and factually insufficient to support any of the jury's liability and damage findings challenged by PEI in its brief. We have already,
       however, discussed sufficiency issues that were adequately briefed. Therefore, we need not address PEI's tenth issue.


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       22
Quick v. City of Austin, 7 S.W.3d 109 (1998)


                                                                       Legislative function cannot, under the separation
                                                                       of powers doctrine, be reviewed de novo by
                      7 S.W.3d 109
                                                                       any other branch of government. Vernon's
                 Supreme Court of Texas.
                                                                       Ann.Texas Const. Art. 2, § 1.
  Jerry J. QUICK, Kaira G. Quick, John M. Bryant,
                                                                       Cases that cite this headnote
   Ruth E. Bryant, Joe Cox, Dolores Cox, Florence
     Turck and Circle C Land Corp., Petitioners,
                         v.                                      [2]   Constitutional Law
     CITY OF AUSTIN, Save Our Springs Legal                                To Judiciary
  Defense Fund, Inc. and Al St. Louis, Respondents.                    Environmental Law
                                                                           Validity
           No. 96–1154. | Argued Nov. 3,                               Water Code provision that permitted persons
        1997. | Decided May 8, 1998. |                                 located outside city limits, but affected by
       Opinion Granting Rehearing Sept. 30, 1999.                      water pollution control ordinance, to bring suit
                                                                       challenging such ordinance as “invalid, arbitrary,
Owners of land within city's extraterritorial jurisdiction
                                                                       unreasonable, inefficient, or ineffective,” and
brought declaratory judgment action challenging water
                                                                       permitted reviewing court to “overturn or
pollution control ordinance. The 22nd Judicial District Court,
                                                                       modify” city's action, did not allow de
Hays County, John Forbis, J., entered judgment declaring
                                                                       novo review of legislative action, as would
ordinance to be null and void. City appealed. The Austin
                                                                       violate separation of powers doctrine. Vernon's
Court of Appeals reversed in part and modified in part,
                                                                       Ann.Texas Const. Art. 2, § 1; V.T.C.A., Water
930 S.W.2d 678. On writ of error, the Supreme Court,
                                                                       Code § 26.177(d).
Abbott, J., held that: (1) review did not violate separation
of powers doctrine; (2) ordinance was rationally related               4 Cases that cite this headnote
to city's interest in protecting water quality; (3) ordinance
was not subject to statutory procedures for adopting zoning
                                                                 [3]   Constitutional Law
ordinances; (4) city was not required to obtain approval
                                                                           Avoidance of constitutional questions
from the Natural Resource Conservation Commission before
ordinance became effective; and (5) ordinance was proper               In analyzing the constitutionality of a statute,
subject of the initiative and referendum process under city            court should, if possible, interpret the statute in a
charter. On rehearing, the Court further held (6) repealed             manner that avoids constitutional infirmity.
statute locking in development regulations in existence at
                                                                       10 Cases that cite this headnote
time of original permit application continued to apply to
applications filed or approved before repeal.
                                                                 [4]   Statutes
Affirmed in part, reversed and modified in part.                            Effect of Partial Invalidity; Severability
                                                                       If any provision of statute is held to be invalid,
Enoch, J., filed a concurring opinion on original submission.          the invalidity does not affect other provisions
                                                                       that can properly be given effect in the absence
Hankinson, J., filed dissenting opinion on rehearing, which            of the invalid provisions.
Enoch, Baker, and O'Neill, JJ., joined.
                                                                       5 Cases that cite this headnote


 West Headnotes (30)                                             [5]   Constitutional Law
                                                                           Policy
                                                                       Municipal Corporations
 [1]    Constitutional Law
                                                                            Conformity to constitutional and statutory
            Nature and scope in general
                                                                       provisions in general



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Quick v. City of Austin, 7 S.W.3d 109 (1998)


        Judiciary has no power to allow a jury to                   Party attacking municipal ordinance bears
        redecide the policy behind legislative issues by            the extraordinary burden to establish that no
        a preponderance of the evidence; instead, in                conclusive or even controversial or issuable fact
        reviewing an ordinance, the court is to consider            or condition existed that would authorize the
        all the circumstances and determine as a matter             passage of the ordinance.
        of law whether the legislation is invalidated by
        a relevant statute or constitutional provision.             3 Cases that cite this headnote
        Vernon's Ann.Texas Const. Art. 2, § 1.
                                                             [11]   Municipal Corporations
        6 Cases that cite this headnote
                                                                       Public safety and welfare
                                                                    Court reviewing municipal ordinance considers
 [6]    Administrative Law and Procedure                            all the circumstances and determines, as a
           Scope of Review in General                               substantive matter, if reasonable minds could
        Standard of review is more than just words;                 differ as to whether the ordinance has a
        rather, it embodies principles regarding the                substantial relationship to the protection of the
        amount of deference a reviewing tribunal                    general health, safety, or welfare of the public; if
        accords the original tribunal's decision.                   the evidence reveals a fact issue in this respect,
                                                                    the ordinance must be upheld.
        4 Cases that cite this headnote
                                                                    6 Cases that cite this headnote
 [7]    Administrative Law and Procedure
           Trial De Novo                                     [12]   Environmental Law
        Key to determining whether statute authorizes a                 Validity
        de novo review is the amount of deference the               Water pollution control ordinance that restricted
        statute requires the reviewing tribunal to give to          new development in watershed area, including
        the original tribunal's decision.                           areas within city's extraterritorial jurisdiction,
                                                                    was rationally related to city's governmental
        27 Cases that cite this headnote                            interest in protecting water quality, and was
                                                                    not invalid, arbitrary, unreasonable, inefficient,
 [8]    Administrative Law and Procedure                            or ineffective, even insofar as it established
           Trial De Novo                                            strict runoff standards, provided only limited
                                                                    opportunity for variance, and severely affected
        When conducting a de novo review, the
                                                                    some property values. V.T.C.A., Water Code §
        reviewing tribunal exercises its own judgment
                                                                    26.177(d).
        and redetermines each issue of fact and law.
                                                                    3 Cases that cite this headnote
        89 Cases that cite this headnote

                                                             [13]   Eminent Domain
 [9]    Administrative Law and Procedure
                                                                        What Constitutes a Taking; Police and
           Trial De Novo
                                                                    Other Powers Distinguished
        In conducting de novo review, the reviewing
                                                                    Governmental regulation can restrict, or even
        tribunal accords the original tribunal's decision
                                                                    take, property for public benefit, but if the
        absolutely no deference.
                                                                    regulation of property rights goes too far,
        38 Cases that cite this headnote                            compensation must be provided.

                                                                    Cases that cite this headnote
 [10]   Municipal Corporations
           Presumptions and burden of proof
                                                             [14]   Environmental Law


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Quick v. City of Austin, 7 S.W.3d 109 (1998)


             Effluent Limitations and Guidelines
                                                                   7 Cases that cite this headnote
        Statutory procedures for adopting municipal
        rules governing plats and subdivisions of land,
        which required public hearing, did not apply to     [18]   Municipal Corporations
        adoption of municipal water pollution control                 Matters subject to initiative
        ordinance. V.T.C.A., Local Government Code                 Water pollution control ordinance was proper
        §§ 212.002, 212.003.                                       subject of the initiative and referendum process
                                                                   under city charter, and was not impliedly
        2 Cases that cite this headnote
                                                                   withdrawn by charter provision requiring
                                                                   comprehensive plan to regulate development and
 [15]   Zoning and Planning                                        planning commission to review development
            Procedural Requirements                                proposals.
        Municipal water pollution control ordinance was
                                                                   2 Cases that cite this headnote
        not in effect a zoning ordinance that would
        be subject to statutory procedures for adopting
        municipal rules governing plats and subdivisions    [19]   Municipal Corporations
        of land, though ordinance included impervious                 Initiative
        cover limitations that clearly had effect on               City charter provisions are to be liberally
        land use. V.T.C.A., Local Government Code §§               construed in favor of the power of initiative and
        212.002, 212.003.                                          referendum.

        2 Cases that cite this headnote                            3 Cases that cite this headnote


 [16]   Municipal Corporations                              [20]   Municipal Corporations
           Local legislation                                          Initiative
        Home rule city was not required to                         While the initiative power may be either
        obtain approval from the Natural Resource                  expressly or impliedly limited by the city charter,
        Conservation Commission before its water                   such a limitation will not be implied unless
        control ordinance became effective; Water                  the provisions of the charter are clear and
        Code provision requiring that water pollution              compelling.
        or abatement program be submitted to the
        Commission for “review and approval” did not,              2 Cases that cite this headnote
        with unmistakable clarity, limit effectiveness
        of home rule city's program pending appeal.         [21]   Appeal and Error
        Vernon's Ann.Texas Const. Art. 11, § 5;                       Intervention
        V.T.C.A., Water Code § 26.177(a, c).
                                                                   Any error in failing to grant citizens group's plea
        1 Cases that cite this headnote                            in intervention was harmless, in suit challenging
                                                                   city's water pollution control ordinance, where
                                                                   group sought to intervene because it believed
 [17]   Municipal Corporations
                                                                   city could not adequately protect its interest, but
           Local legislation
                                                                   city prevailed on appeal in upholding ordinance
        Home-rule city is not dependent on the                     against all the challenges. Rules App.Proc., Rule
        Legislature for a grant of authority; rather, the          61.1.
        Legislature may provide limits on the power
        of home-rule cities, but only if the limitation            1 Cases that cite this headnote
        appears with unmistakable clarity. Vernon's
        Ann.Texas Const. Art. 11, § 5.                      [22]   Statutes



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Quick v. City of Austin, 7 S.W.3d 109 (1998)


             Repealing Statutes                                      by clear expression or necessary implication.
        Generally, when a statute is repealed without                V.T.C.A., Government Code § 311.031(a, b).
        a savings clause limiting the effect of the
                                                                     29 Cases that cite this headnote
        repeal, the repeal of that statute is usually given
        immediate effect.
                                                              [27]   Zoning and Planning
        3 Cases that cite this headnote                                  Constitutional and Statutory Provisions
                                                                     Repeal of statute locking in development
 [23]   Statutes                                                     regulations in existence at time of original
             Repealing Statutes                                      permit application was subject to general savings
        When a right or remedy is dependent on a statute,            clause of Code Construction Act, though repeal
        the unqualified repeal of that statute operates to           included specific savings clause, where repeal
        deprive the party of all such rights that have not           did not expressly make general savings clause
        become vested or reduced to final judgment.                  inapplicable, and specific savings clause was
                                                                     not redundant of and did not conflict with
        7 Cases that cite this headnote                              general clause. V.T.C.A., Government Code §
                                                                     311.031(a, b); V.T.C.A., Government Code §
                                                                     481.143 (Repealed).
 [24]   Appeal and Error
           Effect of change in law                                   1 Cases that cite this headnote
        Statutes
             Pending Actions and Proceedings
                                                              [28]   Zoning and Planning
        Ordinarily all suits filed in reliance on statute                Retroactive operation
        must cease when the repeal of statute becomes
                                                                     Subsequent applications were covered by statute
        effective, and if final relief has not been granted
                                                                     locking in development regulations in existence
        before the repeal goes into effect, final relief
                                                                     at time of original permit application even if
        cannot be granted thereafter, even if the cause is
                                                                     original application was filed before effective
        pending on appeal; repeal of the statute deprives
                                                                     date of statute. V.T.C.A., Government Code §
        the court of subject matter jurisdiction.
                                                                     481.143 (Repealed).
        9 Cases that cite this headnote
                                                                     2 Cases that cite this headnote

 [25]   Statutes
                                                              [29]   Statutes
             Saving clauses
                                                                          Property
        Existence of the specific savings clause in repeal
                                                                     Zoning and Planning
        of legislation does not preclude application
                                                                         Retroactive operation
        of the general savings provision of the Code
        Construction Act to the repeal. V.T.C.A.,                    Statute locking in development regulations in
        Government Code § 311.031(a, b).                             existence at time of original permit application
                                                                     was not improperly given retroactive effect to
        1 Cases that cite this headnote                              extent it was determined to apply even when
                                                                     original application was filed before effective
                                                                     date of statute, with result that subsequent
 [26]   Statutes
                                                                     applications, filed after effective date, were
             Saving clauses
                                                                     governed by regulations in effect before effective
        General savings clause of Code Construction Act
                                                                     date. V.T.C.A., Government Code § 481.143
        is presumed to apply to repeal of legislation
                                                                     (Repealed).
        unless a contrary legislative intent is shown




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        4
Quick v. City of Austin, 7 S.W.3d 109 (1998)


                                                                 not agree with all of the court of appeals' analysis, we affirm
        4 Cases that cite this headnote                          its judgment upholding the Ordinance's validity.


 [30]   Zoning and Planning
            Constitutional and Statutory Provisions                                             I
        By application of general savings clause of Code
        Construction Act, repealed statute locking in            Frustrated by their perception that the Austin City Council
        development regulations in existence at time of          was failing to safeguard Barton Springs adequately, a group
        original permit application precluded application        of Austin citizens interested in protecting the environment
        of current water pollution control ordinance,            initiated the Save Our Springs Ordinance and placed it
        restricting new development in watershed area,           on the Austin municipal ballot for a local referendum
        to permit applications first filed or approved           election. In August 1992, the Austin citizens participating
        before repeal, but not those first filed after repeal.   in the referendum election overwhelmingly approved the
        V.T.C.A., Government Code § 311.031(a, b).               Ordinance. Two days after the voters approved the Ordinance,
                                                                 the Austin City Council enacted the Ordinance and
        2 Cases that cite this headnote                          incorporated it into the City Code.

                                                                 The purpose of the Ordinance, according to its Declaration
                                                                 of Intent, is to insure water quality control in Barton Creek,
Attorneys and Law Firms                                          Barton Springs, and the Barton Springs Edwards Aquifer. 1
                                                                 The provisions of the *113 Ordinance apply to those
 *112 Roy Q. Minton, John L. Foster, Bob E. Shannon,
                                                                 areas within Austin and Austin's extraterritorial jurisdiction
Joseph R. Knight, Robert I. Howell, Scott K. Field, Joe R.
                                                                 that contain watersheds contributing to Barton Springs. The
Greenhill, Austin, for Petitioners.
                                                                 Ordinance limits impervious or non-porous cover on land
William G. Bunch, Thomas H. Watkins, Andrew F. Martin,           in the regulated areas to between 15% and 25% of the net
Elizabeth G. Bloch, James K. McClendon, Frank C. Cooksey,        site area. The Ordinance also requires that new developments
Pamela Stanton Baron, Austin, Michael A. Hatchell, Tyler,        be set back from streams and not contribute to an increase
Dick DeGuerin, Houston, Teresa L. Todd, Marfa, for               in the amount of pollution constituents commonly found in
Respondents.                                                     urban rainfall runoff water. Construction in the “critical water
                                                                 quality zone” of the Barton Creek watershed is prohibited
Opinion                                                          by the Ordinance. The Ordinance provides for no waivers or
                                                                 exceptions unless necessary to avoid conflict with state and
Justice ABBOTT delivered the opinion of the Court.               federal laws.

We are confronted with a challenge to the City of Austin's
                                                                 Petitioners Jerry J. Quick, Kaira G. Quick, John M. Bryant,
Save Our Springs Ordinance, a water pollution control
                                                                 Ruth E. Bryant, Joe Cox, Dolores Cox, Florence Turck, and
measure enacted in 1992. Petitioners, who own land within
                                                                 Circle C Land Corporation all own land outside the city limits
the City of Austin's extraterritorial jurisdiction, brought
                                                                 of Austin but within its extraterritorial jurisdiction. Because
this action contesting the Ordinance. Petitioners claim that
                                                                 their land is within Austin's extraterritorial jurisdiction,
the Ordinance is arbitrary, unreasonable, and inefficient.
                                                                 any development of their property must comply with the
Petitioners also assert that the Ordinance is void because
                                                                 Ordinance. The Petitioners sued the City in Hays County,
it was enacted without a public hearing, it impermissibly
                                                                 seeking a declaratory judgment that the Ordinance was void
regulates the number, use, and size of buildings in the City's
                                                                 because it was illegally enacted. Additionally, Petitioners
extraterritorial jurisdiction, and it has not been approved by
                                                                 challenged the Ordinance under section 26.177(d) of the
the Texas Natural Resource Conservation Commission. The
                                                                 Texas Water Code, which authorizes a party aggrieved by
trial court rendered judgment in favor of Petitioners, holding
                                                                 a water pollution control ordinance to appeal to district
that the Ordinance was null and void. The court of appeals
                                                                 court to review whether the ordinance is invalid, arbitrary,
reversed in part and modified in part, rendering judgment that
                                                                 unreasonable, inefficient, or ineffective.
the Ordinance was valid. 930 S.W.2d 678. Although we do



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Quick v. City of Austin, 7 S.W.3d 109 (1998)


Save Our Springs Alliance, Inc., an incorporated association         it did not require approval by the Texas Natural Resource
of individuals led by the citizen initiators of the Ordinance,       Conservation Commission before it could become effective,
moved to intervene in the suit. The Alliance urged that the          (2) it was not subject to sections 212.002 and 212 .003 of
City was incapable of adequately advocating the Alliance's           the Local Government Code, and (3) it was a proper subject
interest due to previous hostilities over the Ordinance. See,        of the initiative and referendum process. Id. at 686–91. The
e.g., City Council of Austin v. Save Our Springs Coalition,          appellate court accordingly reversed the trial court's judgment
828 S.W.2d 340 (Tex.App.—Austin 1992, no writ)(citizens              in part and rendered judgment that the Ordinance was a valid
sued City to force election on the Ordinance). The trial court,      legislative act. The court of appeals also modified the trial
however, struck the plea in intervention, leaving the City to        court's judgment in part, holding that any permit required
defend the Ordinance.                                                by Circle C would be considered only under the regulations
                                                                     and ordinances in effect when the original application for
The Petitioners and the City proceeded to try the case to            preliminary subdivision approval was filed, as long as the
a jury. The jury answered “yes” to all the questions in the          permit application was filed after September 1, 1987. Id. at
charge inquiring whether the Ordinance and its impervious            693–94.
cover limitations, its prohibition against increases in pollution
constituents, and its failure to contain variances were an           Petitioners challenged the court of appeals' judgment by filing
unreasonable, arbitrary, and inefficient attempt to control          an application for writ of error with this Court. Petitioners
water quality. The jury also found that the Ordinance was            allege that the court of appeals erred by holding (1) that
not a proper subject for the initiative and referendum process       section 26.177(d) of the Water Code is unconstitutional as
and that the Ordinance regulated the number, use, and size of        a violation of separation of powers, (2) that the Ordinance
buildings in the City's extraterritorial jurisdiction (a violation   is not subject to sections 212.002 and 212.003 of the
of section 212.003 of the Texas Local Government Code).              Local Government Code, (3) that the Ordinance is effective
                                                                     without the City first obtaining the Texas Natural Resource
Based on the jury's answers, the trial court rendered judgment       Conservation Commission's approval, (4) that the Ordinance
for the Petitioners declaring the Ordinance null and void.           was a proper subject of the initiative and referendum process,
The trial court's final judgment also contained conclusions          and (5) that only Circle C's permit applications filed after
of law, including that the Ordinance was ineffective because         September 1, 1987 would be considered on the basis of the
the Texas Natural Resource Conservation Commission had               regulations and ordinances in effect at that time. The Alliance
not approved it and that the Ordinance was void because it           also filed its own application for writ of error, contending that
was enacted without a public hearing in violation of section         the court of appeals erred in upholding the trial court's striking
212.002 of the Local Government Code. The trial court                of its plea in intervention.
further decreed that any permit required by Petitioner Circle
C Land Corporation to develop its property would be subject
only to the law in effect when the original application for
                                                                                                    II
preliminary subdivision approval was filed, which, in some
cases, pre-dated the enactment of the Ordinance.                     We first consider the constitutionality of section 26.177(d)
                                                                     of the Texas Water Code. Section 26.177(d) provides in
The court of appeals reversed and rendered in part and               pertinent part:
modified in part the trial court's judgment. 930 S.W.2d 678.
The appellate court first determined that the trial court did                     Any person affected by any ...
not abuse its discretion in striking the Alliance's plea in                       ordinance ... relating to water pollution
intervention. 930 S.W.2d at 683. The court of appeals then                        control and abatement outside the
concluded that the trial court erred in rendering judgment                        corporate limits of such city adopted
that the Ordinance *114 was unreasonable, arbitrary, and                          pursuant to this section or any other
inefficient pursuant to section 26.177(d) of the Texas Water                      statutory authorization may appeal
Code because section 26.177(d) was unconstitutional under                         such action to the [Texas Natural
article II, section 1 of the Texas Constitution, the separation                   Resource Conservation Commission]
of powers provision. Id. at 685. The court of appeals further                     or district court.... The issue on appeal
held that the Ordinance was not illegally enacted because (1)                     is whether the action or program



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Quick v. City of Austin, 7 S.W.3d 109 (1998)


            is invalid, arbitrary, unreasonable,                      administrative agency, a de novo review by the judiciary of
            inefficient, or ineffective in its                        the delegated function violates the Constitution. Chemical
            attempt to control water quality. The                     Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 432–33
            commission or district court may                          (Tex.1963); Davis v. City of Lubbock, 160 Tex. 38, 326
            overturn or modify the action of the                      S.W.2d 699, 712–14 (1959); Southern Canal Co. v. State
            city.                                                     Bd. of Water Eng'rs, 159 Tex. 227, 318 S.W.2d 619, 621–
                                                                      22 (1958).
TEX. WATER CODE § 26.177(d).                                       [2] The Petitioners concede that, if section 26.177(d) in
                                                                  fact confers the power on the courts to review a legislative
The trial court submitted several questions to the jury           function de novo, the statute is unconstitutional as a violation
inquiring whether various provisions of the Ordinance were        of the separation of powers provision of our state constitution.
“unreasonable,” “arbitrary,” or “inefficient.” Based on the       Petitioners also concede that the Ordinance represents the
jury's affirmative answers to these questions, the court then     exercise of a legislative function the Legislature has delegated
rendered judgment that the Ordinance was invalid under            to the City. Accordingly, the only issue we must determine is
section 26.177(d).                                                whether section 26.177(d) necessitates a de novo review by
                                                                  the judiciary. If it does, it is unconstitutional; if it does not,
The court of appeals, however, concluded that section             it is constitutional.
26.177(d) violates the separation of powers doctrine of the
Texas Constitution because it requires a de novo review of         [3] [4] In analyzing the constitutionality of a statute, we
a legislative act. The court of appeals reasoned that the trial   should, if possible, interpret the statute in a manner that
court conducted a de novo review of the statute as evidenced      avoids constitutional infirmity. Barshop v. Medina County
by the court's charge asking the jury to determine, by a          Underground Water Conservation Dist., 925 S.W.2d 618,
preponderance of the evidence, whether the jury thought           629 (Tex.1996). Moreover, if any provision of the statute
the Ordinance was unreasonable, arbitrary, or inefficient.        is held to be invalid, the invalidity does not affect other
The court of appeals further ruled that section 26.177(d)         provisions that can properly be given effect in the absence
authorized such an unconstitutional de novo review by             of the invalid provisions. Rose v. Doctors Hosp., 801 S.W.2d
permitting the reviewing court to “modify” a legislative act      841, 844 (Tex.1990); see also TEX. GOV'T CODE §
and to determine whether a legislative act was “inefficient”      311.032(c).
or “ineffective.”
                                                                  The Petitioners argue that, under these standards, section
                                                                  26.177(d) does not unconstitutionally authorize de novo
                              A                                   review of a legislative act. The Petitioners maintain that the
                                                                  Legislature did not expressly mandate de novo review, but
[1]   A legislative function cannot, under the separation of      rather used neutral terms consistent with the constitutionally
powers doctrine, be reviewed *115 de novo 2 by any other          appropriate standard for judicial review of legislative acts.
branch of government. Article II, section 1 of the Texas          Petitioners observe that section 26.177(d) employs terms such
Constitution divides the functions of government as follows:      as “unreasonable” and “arbitrary,” which are consistent with
                                                                  the standard of review traditionally employed in reviewing
                                                                  city ordinances. See City of Brookside Village v. Comeau,
  [T]hree distinct departments, each of which shall be            633 S.W.2d 790, 792 (Tex.), cert. denied, 459 U.S. 1087,
  confided to a separate body of magistracy, to wit: Those        103 S.Ct. 570, 74 L.Ed.2d 932 (1982)(city ordinance is
  which are Legislative to one; those which are Executive         presumed valid unless the ordinance is unreasonable and
  to another, and those which are Judicial to another; and        arbitrary); Hunt v. City of San Antonio, 462 S.W.2d 536,
  no person, or collection of persons, being of one of these      539 (Tex.1971)(same). Petitioners also rely on this Court's
  departments, shall exercise any power properly attached to      holding in Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d
  either of the others.                                           391, 394 (Tex.1989), that legislative acts can be reviewed
  TEX. CONST. art. II, § 1. Consistent with this division         for “efficiency.” Petitioners alternatively urge that, even
  of power, we have recognized that, when the Legislature         assuming that certain words in the statute impermissibly
  delegates a legislative function to a municipality or an



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Quick v. City of Austin, 7 S.W.3d 109 (1998)


connote a de novo review, this Court should excise those             the basis for its conclusion that the statute unconstitutionally
words and uphold the remaining portions of the statute.              authorizes a de novo review for legislative acts. However,
                                                                     a standard of review is more than just words; rather, it
The City responds that section 26.177(d)'s effect is to              embodies principles regarding the amount of deference a
require a court to reweigh the City's legislative decisions          reviewing tribunal accords the original tribunal's decision.
regarding the reasonableness, effectiveness, and efficiency          The key to determining whether section 26.177(d) authorizes
of the Ordinance, which is an unconstitutional judicial              a de novo review is therefore the amount of deference the
review of public policy determinations. The intrusiveness            statute requires the reviewing tribunal to give to the original
of section 26.177(d) is demonstrated, according to the City,         tribunal's decision.
by the fact that the jury was asked to decide in this case,
by a *116 preponderance of the evidence, whether the                  [8] [9] When conducting a de novo review, the reviewing
Ordinance was “inefficient,” “unreasonable,” or “arbitrary.”         tribunal exercises its own judgment and redetermines each
Section 26.177(d) is not, the City continues, similar to a           issue of fact and law. Key Western Life Ins. Co. v. State
permitted review of whether a legislative act is unreasonable        Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 846 (1961); Lone
or arbitrary. Moreover, the City argues that Edgewood, 777           Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681, 692
S.W.2d at 394, does not apply because our decision in that           (1941); Ysleta Ind. Sch. Dist. v. Meno, 933 S.W.2d 748,
case was premised on a unique state constitutional provision,        751 n. 5 (Tex.App.—Austin 1996, writ denied). In such a
article VII, section 1, which charged the Legislature with           review, the reviewing tribunal accords the original tribunal's
the duty to provide for “an efficient system of public free          decision absolutely no deference. See, e.g., State v. Heal,
schools.” Because there is no constitutional mandate that a          917 S.W.2d 6, 9 (Tex.1996); Ysleta, 933 S.W.2d at 751 n.
water quality ordinance be “efficient,” the City avers that          5. Accordingly, then, the controlling issue is whether section
Edgewood does not mean that courts may routinely review the          26.177(d) requires that the Ordinance be given practically no
efficiency of legislation. Finally, the City asserts that severing   deference by the reviewing court.
any offending terms in section 26.177(d) would contravene
legislative intent and would render the statute devoid of            We hold that section 26.177(d) does not mandate such a
meaning.                                                             result. In reaching this conclusion, we abide by the maxim
                                                                     that courts should, if possible, interpret statutes in a manner
 [5] The City correctly argues that the trial court erred in         that avoids constitutional infirmities. Barshop, 925 S.W.2d
submitting a question for the jury to determine, based on            at 629. We note that section 26.177(d) utilizes two words,
a preponderance of the evidence, whether the Ordinance               “unreasonable” and “arbitrary,” that this Court has repeatedly
was arbitrary, unreasonable, or inefficient. The judiciary has       stated connote the proper deferential standard of reviewing a
no power to allow a jury to redecide the policy behind               city ordinance. Comeau, 633 S.W.2d at 792 (city ordinance is
legislative issues by a preponderance of the evidence. See           presumed to be valid unless the ordinance is unreasonable and
Southern Canal, 318 S.W.2d at 623–24. Instead, in reviewing          arbitrary); Thompson v. City of Palestine, 510 S.W.2d 579,
an ordinance, the court is to consider all the circumstances         581–82 (Tex.1974)(describing extraordinary burden *117
and determine as a matter of law whether the legislation is          on party attacking ordinance to show that reasonable minds
invalidated by a relevant statute or constitutional provision.       could not differ on whether the ordinance has a substantial
Cf. Comeau, 633 S.W.2d at 793. Nevertheless, the fact that           relationship to the general welfare and that the city acted
the trial court in this case impermissibly submitted these           arbitrarily); Hunt, 462 S.W.2d at 539 (city ordinance is
questions to the jury does not mandate that the statute              presumed to be valid unless the ordinance is unreasonable and
is unconstitutional. The submitted jury questions, being             arbitrary).
questions of law, are immaterial and will not be considered.
Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157             In the context of the deferential standard predicated by
(Tex.1994)(court may disregard as immaterial a jury's finding   the words “unreasonable” and “arbitrary,” we cannot agree
on a question of law). We will instead rely on the provisions   with the court of appeals that the inclusion of “inefficient”
of the statute itself to determine its constitutionality.       and “ineffective” somehow requires a transformation of the
                                                                standard of review from the proper deferential standard
 [6] [7] The court of appeals focused on certain words in the to a standard in which the City's decision is afforded
statute, such as “inefficient,” “ineffective,” and “modify,” as no deference. In fact, on prior occasions, albeit under



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               8
Quick v. City of Austin, 7 S.W.3d 109 (1998)


different circumstances, this Court has interpreted the           Hosp., 801 S.W.2d 841, 844 (Tex.1990). If a reviewing
word “efficient” in a more deferential manner than would          court were to determine that one portion of a water control
have been required under a de novo review. See, e.g.,             ordinance was invalid, the court would therefore be required
Edgewood, 777 S.W.2d at 398–99 (utilizing the term                to “modify” the ordinance to delete the invalid portion if the
“efficient” in article VII, section 1 of the Texas Constitution   remainder of the ordinance was complete in itself and capable
to provide a standard to measure the constitutionality            of being executed in accordance with the apparent legislative
of the Texas system for financing public education in             intent. See id. The Legislature's use of the word “modify”
Texas, but recognizing that the Legislature, rather than the      thus does not render section 26.177(d) unconstitutional. We
courts, had “the primary responsibility to decide how best        disagree with the court of appeals' holding that section
to achieve an efficient system”); Central Educ. Agency            26.177(d) violates the separation of powers doctrine and is
of State of Texas v. Upshur County Com'rs Court, 731              unconstitutional. Rather, we will interpret and apply section
S.W.2d 559, 561 (Tex.1987)(holding that Commissioner              26.177(d) consistent with the deferential *118 standard of
of Education's responsibility to “promote efficiency and          review this Court articulated in Comeau.
improvement” did not mean that Commissioner could
conduct a de novo review of county commissioners'
detachment and annexation decisions). We accordingly
                                                                                                B
perceive no constitutional impediment to judicial review
of an ordinance to determine whether it is “inefficient” or       [12] Petitioners urge that the Ordinance's invalidity under
“ineffective” under the appropriate deferential standard of      the Comeau standard is manifest. Petitioners rely upon
review.                                                          evidence in the record that, before the passage of the
                                                                 Ordinance, the City already had the most stringent water
 [10]     [11] The principles that underlie this deferential quality standards in Texas. Moreover, a city engineer and the
standard of review for municipal legislation are summarized      head of Austin's Environmental Services admitted during trial
in our decision in Comeau, 633 S.W.2d at 792–93. The party       that no discernible trend of pollution existed in Barton Springs
attacking the ordinance bears the “extraordinary burden”         prior to the Ordinance's enactment. Accordingly, Petitioners
to establish “ ‘that no conclusive or even controversial or      maintain that the Ordinance was unnecessary and based on
issuable fact or condition existed’ ” that would authorize the   flawed data.
passage of the ordinance. Id. (quoting Thompson, 510 S.W.2d
at 581). We consider all the circumstances and determine,        Petitioners also complain that it is impossible to comply with
as a substantive matter, if reasonable minds could differ as     the Ordinance. The Ordinance requires that a development
to whether the ordinance has a substantial relationship to       not increase annual pollution loadings of thirteen identified
the protection of the general health, safety, or welfare of the  constituents. Petitioners contend that the rules implemented
public. Id. at 793. If the evidence reveals a fact issue in this by the City of Austin to execute the Ordinance require runoff
respect, the ordinance must be upheld. Id. Accordingly, we       surface water from a development to have lower average
hold that, under this deferential standard of review, the Texas  concentrations of some of these constituents than was found
Constitution is not violated by the judiciary considering,
                                                                 in certain rain samples taken in Austin. 3 In fact, Petitioners
according to the mandates of section 26.177(d) of the Water
                                                                 point out that the Ordinance requires that runoff surface water
Code, whether a water control ordinance is invalid, arbitrary,
                                                                 have less average nitrogen than contained in some name-
unreasonable, inefficient, or ineffective in its attempt to
control water quality.                                           brand bottled drinking water. 4 Petitioners allege that the
                                                                 Ordinance's practical effect is therefore a preclusion of all
We further do not believe that the provision in section          development in the watershed areas.
26.177(d) allowing the reviewing court to “modify” the city's
action connotes an impermissible de novo review. Courts           Petitioners also attack the lack of variances in the Ordinance.
ordinarily cannot strike down an entire ordinance as invalid      For instance, even if a landowner could establish that no
based on the invalidity of only a part of the ordinance,          increase in pollution would result from constructing a greater
unless all the provisions of the ordinance are so dependent       percentage of impervious cover than allowed under the
or connected that it cannot be presumed that one provision        Ordinance, no variance is permitted.
would have been passed without the others. Rose v. Doctors



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


Finally, Petitioners impugn the Ordinance's financial impact.      protecting the watershed from pollution in order to preserve
The City's own expert economist concluded that the                 water quality.
Ordinance would, over a fifteen-year period, decrease
property values in the watershed areas in the range of $229        In light of the conflicting evidence presented at trial regarding
million to $379 million. The Petitioners introduced evidence       the Ordinance, we cannot conclude that the Petitioners met
at trial that some land lost ninety percent of its value because   their “extraordinary burden” of establishing that reasonable
of the Ordinance.                                                  minds could not differ regarding whether the Ordinance was
                                                                   invalid, arbitrary, unreasonable, inefficient, or ineffective
The City presented evidence at trial that sharply contradicted     in its attempt to control water quality. While Petitioners
the Petitioners' arguments. In response to the Petitioners'        presented evidence tending to establish that prior water
evidence regarding the effectiveness of the water control          control ordinances were sufficient such that the Ordinance
ordinances in place before the Save Our Springs Ordinance,         was not necessary, the City's evidence regarding the excessive
the City provided testimony that the Ordinance was cheaper         grant of variances under the prior measure precludes a
and easier to administer than earlier measures. Further,           determination that reasonable minds could not differ on the
the evidence also established that eighty-six percent of all       need for the Ordinance.
development applications received a variance under the water
quality ordinance in effect immediately prior to the Save Our      The trial testimony conflicts regarding a landowner's ability to
Springs Ordinance. This excessive grant of variances under         comply with the Ordinance. The Petitioners offered scientific
the prior ordinance, according to the City, obviously undercut     testimony attempting to establish that it was virtually
its effectiveness.                                                 impossible to comply with the Ordinance, but this testimony
                                                                   was refuted by the City. Moreover, the City also presented
To rebut the Petitioners' claim that it is impossible to comply    the testimony of two developers that, not only did the
with the Ordinance because its rules require that runoff be        City approve their developments under the Ordinance, they
purer than rain, the City elicited testimony from Stephen          actually anticipate profitable returns on their investments.
Stecher, the project director of the Barton Creek watershed        The conflict in this evidence demonstrates that reasonable
study. He testified that soil and plants on the ground *119        minds could indeed differ on whether compliance with the
typically capture much of the nitrogen and some other              Ordinance is possible.
constituents in urban rainfall before the constituents reach
a creek or tributary. Accordingly, even assuming that the          While the Petitioners decry the lack of a variance procedure in
Petitioners' evidence regarding the rainfall samples was           the Ordinance, the Ordinance does actually provide a limited
reliable, see ante at n. 3, the City contends that compliance      variance to keep the Ordinance from running afoul of federal
with the technical rules is still possible because runoff          and state laws. Moreover, the Petitioners' complaint regarding
is naturally less contaminated with certain pollutants than        the lack of a variance procedure ignores the evidence that
rainfall. In further support of its argument that it is not        the excessive grant of variances under prior water control
impossible to comply with the Ordinance, the City presented        measures had undercut their effectiveness.
testimony from two developers that it is not only possible,
but actually profitable to develop land in the watershed areas     We perceive that the real crux of the Petitioners' complaint
in compliance with the Ordinance. These developers both            is that the Ordinance unreasonably reduces property values
testified that they were anticipating sizable profits from their   and requires excessive expenditures in order to comply with
developments complying with the strictures of the Ordinance.       its provisions. The Petitioners established that the Ordinance
                                                                   will result in at least a $225 million decrease in property
Finally, the City offered evidence that the impervious cover       values in regulated areas, and that the Ordinance has caused
limitations in the Ordinance reduce polluting runoff and are       some parcels of land to lose ninety percent of their value. The
a nationally-recognized method of protecting water quality.        City has not refuted this evidence.
According to the City, the provisions restricting the pollutant
constituents are only a small percentage of the 138 pollutants     However, in this case, the fact that the Ordinance severely
that the City is required to monitor under federal law. The        impacts some property values does not make it invalid,
restrictions on impervious cover and pollutant constituents,       arbitrary, unreasonable, inefficient, or ineffective in its
the City therefore urges, are clearly related to its goal of       attempt to control water quality. While the Ordinance's



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


impervious cover limitations undoubtedly substantially affect                    the safe, orderly, and healthful
the value of some property parcels, such limitations are a                       development of the municipality.
nationally-recognized method of preserving water quality.
Further, *120 it is indisputable that limiting pollutants in        TEX. LOC. GOV'T CODE § 212.002. Local Government
runoff water will aid in preserving water quality. We therefore     Code section 212.003 provides in pertinent part:
conclude that the Ordinance's provisions are rationally related
                                                                      (a) The governing body of a municipality by ordinance may
to its goal of protecting water quality.
                                                                      extend to the extraterritorial jurisdiction of the municipality
                                                                      the application of municipal ordinances adopted under
 [13] Because we have concluded that the Ordinance is
                                                                      Section 212.002 and other municipal ordinances relating
rationally related to the governmental interest in protecting
                                                                      to access to public roads. However, unless otherwise
water quality, the City has the right to significantly limit
                                                                      authorized by state law, in its extraterritorial jurisdiction a
development in watershed areas in furtherance of this interest.
                                                                      municipality shall not regulate:
See Day–Brite Lighting, Inc. v. Missouri, 342 U.S. 421,
424, 72 S.Ct. 405, 96 L.Ed. 469 (1952). A governmental                   (1) the use of any building or property for business,
regulation can restrict, or even take, property for such a public        industrial, residential, or other purposes;
benefit; however, if the regulation of property rights goes
too far, compensation must be provided. See Barshop, 925                 (2) the bulk, height, or number of buildings constructed
S.W.2d at 628. To the extent that the City's limitations on              on a particular tract of land;
development deny all economically viable use of property
                                                                         (3) the size of a building that can be constructed on a
or unreasonably interfere with the right to use and enjoy
                                                                         particular tract of land, including without limitation any
property, affected property owners may have a remedy in
                                                                         restriction on the ratio of building floor space to the land
takings law. See Mayhew v. Town of Sunnyvale, 964 S.W.2d
                                                                         square footage; or
922, 935 (Tex.1998)(recognizing that a compensable taking
can occur if a governmental regulation totally destroys a                (4) the number of residential units that can be built per
property's value or if the regulation has a severe enough                acre of land.
economic impact and the regulation interferes with distinct
investment-backed expectations). Such a challenge is not part       Id. § 212.003.
of this lawsuit. Our holding today that the Ordinance is not
invalid, arbitrary, unreasonable, inefficient, or ineffective in    Petitioners argue that (1) sections 212.002 and 212.003
its attempt to control water quality accordingly has no impact      govern the Ordinance, (2) the Ordinance was enacted without
on any potential claim that the Ordinance unconstitutionally        a public hearing in violation of section 212.002, and (3)
interferes with a landowner's property rights.                      the Ordinance effectively violates the prohibitions in section
                                                                    212.003 by regulating the use, bulk, height, number, or size
                                                                    of buildings. Petitioners accordingly advocate that the trial
                                                                    court correctly held that the Ordinance was void. The City
                              III
                                                                    responds that sections 212.002 *121 and 212.003 do not
 [14] The Petitioners next attack the court of appeals'             apply because these sections are zoning statutes and the
conclusion that the Ordinance is not void under sections            Ordinance is a water pollution control measure. We agree
212.002 and 212.003 of the Local Government Code. Local             with the City.
Government Code section 212.002 provides:
                                                                    By their express terms, sections 212.002 and 212.003 apply
             After a public hearing on the matter,                  to ordinances that “govern plats and subdivisions of land.”
             the governing body of a municipality                   Further, the statutes' legislative history indicates that they
             may adopt rules governing plats                        govern a city's zoning authority, not a city's authority to apply
             and subdivisions of land within the                    water quality requirements. For instance, House Bill 3187,
             municipality's jurisdiction to promote                 which amended section 212.003, “prohibits the application
             the health, safety, morals, or general                 of zoning regulations in ETJ areas.” COMMITTEE ON
             welfare of the municipality and                        URBAN AFFAIRS, BILL ANALYSIS, Tex. H.B. 3187, 71st
                                                                    Leg., R.S. (1989). In fact, the Legislature made it clear that



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


section 212.003 was not intended “to affect the ability of
a municipality to apply water control requirements” in its                    The water pollution and abatement
extraterritorial jurisdiction. CONFERENCE COMMITTEE                           program ... must be submitted
REPORT, Tex. H.B. No. 3187, 71st Leg., R.S. (1989). We                        to the [Texas Natural Resource
therefore conclude that sections 212.002 and 212.003 apply                    Conservation] commission for review
only to zoning statutes, not water control measures such as                   and approval. The commission may
the Ordinance.                                                                adopt rules providing the criteria for
                                                                              the establishment of those programs
 [15] Petitioners nevertheless assert that the Ordinance is,                  and the review and approval of those
in effect, a zoning ordinance, not a water control ordinance.                 programs.
Petitioners argue that the Ordinance's impervious cover
                                                                  TEX. WATER CODE § 26.177(c).
limitations effectively constitute a regulation on the use,
bulk, height, number, and size of buildings in the City's
                                                                  Petitioners argue that the Legislature clearly contemplated
extraterritorial jurisdiction in violation of section 212.003.
                                                                  by the phrase “review and approval” that the Texas Natural
Petitioners contend that we should consider the actual effect
                                                                  Resource Conservation Commission would actually approve
of the Ordinance, not its stated purpose, in determining
                                                                  a city's water pollution and abatement control program before
whether the Ordinance must comply with these statutes.
                                                                  the program could become effective. Otherwise, Petitioners
                                                                  maintain that a city ordinance would remain effective even
However, we disagree with Petitioners' assertion that the
                                                                  if the Commission later expressly disapproved the ordinance.
Ordinance effectively constitutes a zoning regulation. The
                                                                  Additionally, Petitioners *122 rely on the statute's bill
Ordinance's stated goal is to protect and preserve a “clean
                                                                  analysis, which stated that:
and safe drinking water supply” and “to prevent further
degradation of the water quality in Barton Creek, Barton                      Current law requires the preparation of
Springs, and the Barton Springs Edwards Aquifer.” While                       pollution abatement plans by cities ...
the Ordinance clearly has effects on land use through its                     but does not require submittal, review
imposition of impervious cover limitations, these cover                       and approval of the plans. There is
limitations are typical features in ordinances protecting                     currently no requirement for cities
water quality. Indeed, as discussed previously, such cover                    to notify anyone when a pollution
limitations are a nationally-recognized method of preserving                  abatement plan is established. Water
water quality, and therefore we conclude that the cover                       pollution abatement plans, when
limitations further the Ordinance's stated goal. On balance,                  properly prepared, can be beneficial
the Ordinance is not a zoning regulation seeking to shape                     in reducing water pollution. However,
urban development, but rather is a measure designed                           if a city fails to submit a plan,
to protect water quality. We accordingly hold that the                        or submits an inadequate plan, there
requirements of sections 212.002 and 212.003 are not                          is no procedure for carrying out
applicable to the Ordinance, and the Ordinance cannot be                      the intent of the law. This bill
invalidated by these statutes.                                                would provide for direct Texas Water
                                                                              Commission oversight of pollution
                                                                              abatement plans.
                             IV
                                                                  SENATE NATURAL RESOURCES COMM., BILL
 [16] Petitioners also complain that the court of appeals erred   ANALYSIS, Tex. H.B. 1546, 71st Leg., R.S. (1989).
in holding that the Ordinance is effective without the City       Petitioners assert that the Commission cannot “provide
first obtaining approval from the Texas Natural Resource          oversight” of the pollution abatement plans if the plans can
Conservation Commission. Section 26.177(a) of the Water           become effective before approval is obtained. Because the
Code allows municipalities with populations in excess of five     Ordinance undisputedly has not yet been approved by the
thousand to establish water pollution control and abatement       Commission, Petitioners urge that it is not effective.
programs. Section 26 .177(c) provides in pertinent part:




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Quick v. City of Austin, 7 S.W.3d 109 (1998)


The City responds that its own charter prescribes when              Laws 2760 (emphasis added), repealed by Act of June 17,
ordinances become effective. Any legislative limits on the          1987, 70th Leg., R .S., ch. 406, § 2, 1987 Tex. Gen. Laws
City's authority to control the effective date of its ordinances    1938. Thus, while the Legislature clearly was well-versed in
cannot be implied, but must be set forth with unmistakable          drafting statutes that explicitly provided that a local act was
clarity. Lower Colorado River Auth. v. City of San Marcos,          not *123 effective until approved by the Commission, the
523 S.W.2d 641, 643–45 (Tex.1975). According to the City,           Legislature chose not to include such an express provision
section 26.177(c) does not state with unmistakable clarity          in section 26.177(c). We presume that this omission has a
that a water pollution control ordinance is not effective until     purpose. See Cameron v. Terrell & Garrett, 618 S.W.2d
the Commission approves it. Moreover, the City maintains            535, 540 (Tex.1981). The only purpose that we can ascribe
that the statute's legislative history supports its position. The   for such an omission is that the Legislature did not intend
City also points out that the Commission itself considers           that water pollution programs such as the Ordinance require
any ordinance submitted for review to be effective prior to         Commission approval before becoming effective.
Commission approval. Indeed, the Commission has filed an
amicus curiae brief in this Court requesting that we affirm the     Section 26.177(c)'s legislative history also supports our
court of appeals' holding on this issue.                            holding. The author of the bill that added the review and
                                                                    approval provision stated that the provision was not intended
 [17] The City of Austin is a home-rule city deriving its           to take away local control, but was designed to gather
power from article XI, section 5 of the Texas Constitution.         information and to assist cities in developing their programs.
A home-rule city is not dependent on the Legislature for a          Debate on Tex. H.B. 1546 on the Floor of the House, 71st
grant of authority. Lower Colorado River Auth., 523 S.W.2d          Leg., R.S., Floor Tape 72, Side 2 (May 2, 1989)(remarks
at 643. Rather, the Legislature may provide limits on the           of Representative Terral Smith). See also Hearing on Tex.
power of home-rule cities, but only if the limitation appears       H.B. No. 1546 before the House Resources Committee, 71st
with “unmistakable clarity.” Id. at 645; City of Sweetwater v.      Leg., R.S., House Tape Excerpts, Tape 2–B (March 22,
Geron, 380 S.W.2d 550, 552 (Tex.1964).                              1989)(Executive Director of the Commission testified that
                                                                    the Commission viewed the legislation as establishing an
Under Austin's city charter, the Ordinance is effective.            information-gathering process). Nothing in the bill analysis
Accordingly, unless the Legislature limited the City's              relied upon by the Petitioners compels a contrary conclusion.
authority to set the Ordinance's effective date with
unmistakable clarity in section 26.177(c), the Ordinance does       Finally, we note that our holding is consistent with
not require Commission approval before it becomes effective.        the Commission's interpretation of the statute. While not
We conclude that the Legislature has not so limited the City's      controlling, the contemporaneous construction of a statute by
authority.                                                          the administrative agency charged with its enforcement is
                                                                    entitled to great weight. State v. Public Util. Comm'n, 883
While section 26.177(c) states that a water pollution or            S.W.2d 190, 196 (Tex.1994); Dodd v. Meno, 870 S.W.2d
abatement program must be submitted to the Commission               4, 7 (Tex.1994). According to the Commission's amicus
for “review and approval,” the statute is silent as to whether      brief, the Commission has refrained from acting on submitted
the program is effective pending approval. We find this             water pollution control and abatement programs until it
silence significant because, in other Water Code sections,          can analyze and adopt rules and standards to guide its
the Legislature has specifically stated that an act was not         consideration. Therefore, a holding that a water pollution
effective until the Commission approved it. For instance,           control and abatement program requires pre-approval by
section 11.121 of the Water Code provides that any project          the Commission would essentially render ineffective every
for “the storage, taking, or diversion of water” shall not begin    municipality's program passed since 1989. This is a result
“without first obtaining a permit from the commission. ”            that we cannot presume the Legislature intended by enacting
TEX. WATER CODE § 11.121 (emphasis added). Similarly,               section 26.177(c).
section 26.032, which has since been repealed, stated
that “[b]efore the order, resolution, or other rule becomes
effective, the county shall submit it to the commission and
                                                                                                  V
obtain the commission's written approval.” Act of May 26,
1985, 69th Leg., R.S., ch. 795, § 1.079(c), 1985 Tex. Gen.



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


 [18] Petitioners next urge that the Ordinance is invalid          by the people at an initiative election. Rather, Petitioners
because it is not a proper subject of the initiative and           claim that, because the charter requires a comprehensive
referendum process under Austin's city charter. Article IV,        plan to regulate development and a planning commission
section 1 of the City's charter contains the following provision   to review development proposals, the subject matter of
regarding legislation by public initiative:                        the Ordinance has been implicitly withdrawn from the
                                                                   people. However, such an implicit withdrawal must be
             The people of the city reserve                        “clear and compelling.” The provisions of article X do not
             the power of direct legislation by                    clearly compel the conclusion that the Ordinance cannot be
             initiative, and in the exercise of such               passed through the initiative and referendum process. The
             power may propose any ordinance, not                  planning commission's review and recommendation powers
             in conflict with this Charter, the state              over development can reasonably coexist with the adoption
             constitution, or the state laws except                of a water quality regulation through public initiative. Indeed,
             an ordinance appropriating money or                   article X does not grant the planning commission the power
             authorizing the levy of taxes.                        to establish a water pollution and abatement program under
                                                                   section 26.177(d) of the Water Code. Accordingly, we hold
Austin City Charter art. IV, § 1.
                                                                   that the SOS Ordinance was a proper subject of the initiative
                                                                   and referendum process.
Petitioners assert that the Ordinance conflicts with article X
of the City's charter. Article X mandates the implementation
of a comprehensive plan to guide, regulate, and manage
development to assure the most beneficial use of land,                                           VI
water, and other natural resources. Article X also establishes
a planning commission which “shall” review and make                Petitioners finally contend that the court of appeals erred
recommendations on proposals to “adopt or amend land               by holding that only projects where the original permit
development regulations,” including “zoning, subdivision,          applications were filed after September 1, 1987 were required
building and construction, environmental and other police          to be considered on the basis of the City's regulations
power regulations controlling, regulating, or affecting the use    and ordinances in effect at that time. Circle C made
or development of land.” Austin City Charter art. X, § 4.          applications for preliminary subdivision approval for five
Finally, the charter provides that the city council may adopt      different sections of the Circle C development, four of which
amendments to the comprehensive plan only after at least one       were filed in 1985 and the fifth of which was filed in 1992.
public hearing. Id. § 5. Petitioners claim that these provisions   In furtherance of its ongoing development from these permit
of the charter remove water pollution regulations, such as the     applications, Circle C applied for site development permits
Ordinance, from the domain of citizen initiators. The City         after the enactment of the Ordinance.
responds that such a withdrawal of the power of initiative
must be clearly stated, and no such clear statement exists in  The trial court concluded that, under former section 481.143
this case.                                                     of the Government Code, the ordinances in effect when Circle
                                                               C filed its original permit applications in 1985 and 1992
 *124 [19]       [20] Charter provisions are to be liberally governed the City's consideration of Circle C's subsequent
construed in favor of the power of initiative and referendum.  permit applications for the same development. The court of
Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 649 (1951);      appeals, however, modified the trial court's judgment, holding
Taxpayers' Ass'n of Harris County v. City of Houston, 129      that because section 481.143 became effective September 1,
Tex. 627, 105 S.W.2d 655, 657 (1937). While the initiative     1987, only initial permits filed between September 1, 1987
power may be either expressly or impliedly limited by the      and the effective date of the Ordinance (August 10, 1992)
city charter, such a limitation will not be implied unless the were not subject to the strictures of the Ordinance. Circle C
provisions of the charter are clear and compelling. Glass, 244 contends that the court of appeals erred in modifying the trial
S.W.2d at 649.                                                 court's judgment.


Petitioners make no contention that the Austin city charter        Generally, the right to develop property is subject to
expressly provides that a water control regulation, such           intervening regulations or regulatory changes. Connor v. City
as the Save Our Springs Ordinance, may not be adopted              of University Park, 142 S.W.2d 706, 709 (Tex.Civ.App.—



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


Dallas 1940, writ ref'd). In adopting sections 481.141–.143         (1940). The repeal of the statute in such instances deprives a
of the Texas Government Code on September 1, 1987, the              court of subject matter jurisdiction over the cause. See Knight,
Texas Legislature significantly altered this rule by locking in     627 S.W.2d at 384; Dickson, 139 S.W.2d at 259.
for the life of a project the regulations in effect at the time
of the application for the project's first permit. The version of   The Legislature, in its repeal of section 481.143, did not
section 481.143 in effect at the time of the dispute provided:      include a savings clause providing that section 481.143
                                                                    remained in effect for pending litigation. Accordingly, we
             The approval, disapproval, or                          must give its repeal immediate effect, and we cannot review
             conditional approval of an application                 Circle C's argument that the court of appeals erred in
             for a permit shall be considered                       concluding that its original permit applications filed before
             by each regulatory agency solely on                    September 1, 1987 were not covered by section 481.143.
             the basis of any orders, regulations,
             ordinances, or other duly adopted                      We were confronted with a similar situation in Dickson v.
             requirements in effect at the time the                 Navarro County Levee Improvement Dist. No. 3, 135 Tex. 95,
             original application for the permit is                 139 S.W.2d 257 (1940). In Dickson, a bondholder instituted
             filed. If a series of permits is required              suit to collect delinquent taxes owed by the defendants to a
             for a project, the orders, regulations,                levee improvement district under a statute allowing holders
             ordinances, or other requirements in                   of bonds issued by such districts to commence suit if the
             effect at the time the original *125                   district failed to do so within sixty days after the taxes became
             application for the first permit in that               delinquent. The trial court rendered judgment in favor of the
             series is filed shall be the sole basis                bondholder, and defendants appealed. While the case was
             for consideration of all subsequent                    pending in the court of appeals, the Legislature repealed
             permits required for the completion of                 the statute allowing bondholders to bring such actions. Id.
             the project.                                           at 259. The court of appeals nevertheless affirmed the trial
                                                                    court's judgment for the bondholder, but this Court vacated
Act of June 16, 1987, 70th Leg., R.S., ch. 374, § 1, 1987 Tex.
                                                                    the appellate court's judgment and dismissed the cause. Id . at
Gen. Laws 1838–39, amended by Act of May 24, 1995, 74th
                                                                    260. We reasoned that the Legislature's repeal of the statute
Leg., R.S., ch. 794, § 1, 1995 Tex. Gen. Laws 4147, repealed
                                                                    precluded the bondholder from maintaining the suit because
by Act of June 1, 1997, 75th Leg., R.S., ch. 1041, § 51(b),
                                                                    the Legislature had not incorporated a savings clause in the
1997 Tex. Gen. Laws 3966.
                                                                    repealing statute. Id. at 259.

However, the Legislature repealed section 481.143 while this
                                                                    We similarly cannot review Circle C's claim that the court of
case was pending before this Court. Act of June 1, 1997, 75th
                                                                    appeals erred by holding that section 481.143 did not apply
Leg., R.S., ch. 1041, § 51(b), 1997 Tex. Gen. Laws 3966.
                                                                    to subsequent permit applications when the original permit
Because of this repeal, we conclude that we cannot address
                                                                    application was filed before September 1, 1987. Because the
Circle C's argument that the court of appeals erred in its
                                                                    Legislature did not include a savings provision in its repeal
modification of the trial court's judgment.
                                                                    of section 481.143, we must give the repeal immediate effect
                                                                    since Circle C had not obtained “final relief” prior to the
When a cause of action is based on a statute, the repeal
                                                                    repeal.
of that statute without a savings clause for pending suits
is usually given immediate effect. Knight v. International
                                                                    However, no party challenged the court of appeals' holding
Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982).
                                                                    that section 481.143 applied to Circle C's original permit
Ordinarily, all suits filed in reliance on the statute must cease
                                                                    applications filed after September 1, 1987. The court of
when the repeal becomes effective; if final relief has not
                                                                    appeals' holding on this issue therefore constituted “final
been granted before the repeal goes into effect, final relief
                                                                    relief” in Circle C's favor. When “final relief” has been
cannot be granted thereafter, even if the cause is pending
                                                                    granted before the repeal of a statute, the relief is not usually
on appeal. Knight, 627 S.W.2d at 384; National Carloading
                                                                    affected by the statute's *126 subsequent repeal, unless the
Corp. v. Phoenix–El Paso Express, Inc., 142 Tex. 141, 176
                                                                    Legislature has provided to the contrary. Cf. Knight, 627
S.W.2d 564, 568 (1943); Dickson v. Navarro County Levee
                                                                    S.W.2d at 384.
Improvement Dist. No. 3, 135 Tex. 95, 139 S.W.2d 257, 259


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Quick v. City of Austin, 7 S.W.3d 109 (1998)


                                                                    we conclude that the error complained of probably caused
In sum, we dismiss Circle C's point of error challenging the        the rendition of an improper judgment. TEX. R. APP. P.
court of appeals' modification to the trial court's judgment.       61.1. The Alliance admits that the only remedy for the alleged
However, that portion of the court of appeals' judgment             improper striking of its intervention is a new trial. Because the
holding that any permit Circle C required be considered on the      City has prevailed in upholding the Ordinance against all the
basis of the ordinances in effect when the original application     challenges raised by Petitioners, a new trial would do nothing
for preliminary subdivision approval was filed, as long as          to further the Alliance's interests. We accordingly conclude
the original application was filed after September 1, 1987,         that any alleged error in striking the Alliance's intervention
remains intact as it was not challenged in this Court.              was harmless.

                                                                    ******

                             VII
                                                                    For the foregoing reasons, we affirm the court of appeals'
 [21] As a final matter, we must consider Save Our Springs          judgment holding that the Ordinance is a valid legislative
Alliance's argument that the trial court erred in striking          act that need not be approved by the Texas Natural
its plea in intervention and the court of appeals erred in          Resource Conservation Commission to become effective and
affirming the trial court's striking of its intervention. The       enforceable. We dismiss Circle C's point of error regarding
Alliance, comprised of the citizen initiators of the Save           the court of appeals' modification of the trial court's judgment
Our Springs Ordinance, maintains that the City could not            with regard to section 481.143 of the Government Code
adequately defend the Ordinance in court because the City           because Circle C did not obtain final relief prior to the repeal
had consistently opposed the Ordinance and had vigorously           of section 481.143.
defended the previous water control ordinances that had been
in place. Further, the Alliance points out that the City had
opposed the legality of the Ordinance in open court and             Justice ENOCH filed a concurring opinion.
attempted to preclude a vote on the Ordinance. See City
Council of Austin v. Save Our Springs Coalition, 828 S.W.2d         Justice ENOCH, concurring.
340 (Tex.App.—Austin 1992, no writ)(citizens sued City to           I join in the Court's opinion and in the judgment. I write
force election on the Ordinance). Under these circumstances,        separately only to mention one facet of this case that troubles
the Alliance urges that its intervention was essential to protect   me: *127 by conferring on Austin the authority to control
its interests. See Guaranty Fed. Savings Bank v. Horseshoe          land use outside its boundaries, the Legislature has partially
Operating Co., 793 S.W.2d 652, 657 (Tex.1990)(trial court           disenfranchised a class of citizens. This disenfranchisement
abuses its discretion in striking intervention when (1) the         is at its most obvious in this case, in which the citizens of one
intervenor, in its own name, could have either brought, or          community by their vote have placed land use restrictions on
defended and defeated the same action; (2) the intervention         citizens of neighboring communities who had no vote. It is
will not complicate the case by an excessive multiplication         also a disenfranchisement that may very well violate the “one
of the issues; and (3) the intervention is almost essential         man, one vote” principle inherent in the right to participate in
to effectively protect the intervenor's interest). The Alliance     the political process and guaranteed by the Equal Protection
contends that the court of appeals erred in concluding              Clause of the Fourteenth Amendment to the United States
that the City could adequately protect its interests. The           Constitution. See Holt Civic Club v. City of Tuscaloosa, 439
Alliance further asserts that citizen initiative sponsors have an   U.S. 60, 68, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978).
absolute right to intervene in litigation involving the initiated
legislation.                                                        In Holt, the United States Supreme Court decided that
                                                                    the City of Tuscaloosa's extraterritorial jurisdiction, which
However, we do not believe it is necessary to reach the             extended police jurisdiction and sanitary regulations over
merits of the Alliance's argument. Even assuming the trial          several unincorporated areas, did not violate the voting rights
court erred in striking the Alliance's intervention and the         of those areas' residents. Id. at 70, 99 S.Ct. at 389-90. The
court of appeals erred by affirming the trial court's action,       Court declined to invalidate the extraterritorial jurisdiction
the error was harmless. Under the Texas Rules of Appellate          because of “the extraordinarily wide latitude that States
Procedure, no judgment may be reversed on appeal unless             have in creating various types of political subdivisions and



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


conferring authority upon them.” Id. at 71, 99 S.Ct. at 390.        of the Ordinance. These subsequent permit applications are
But however wide the states' latitude is, it is not without         at issue.
boundaries, and two aspects of the Holt opinion indicate that
this case might be distinguishable.                                 The trial court concluded that, under former section 481.143
                                                                    of the Government Code, the ordinances in effect when Circle
First, the jurisdictional extension in Holt provided substantial    C filed its original permit applications in 1985 and 1992
benefits to the residents in the form of municipal services         governed the City's consideration of Circle C's subsequent
such as police, fire, and health protection. See id. at 74, 99      permit applications for the same development. The court of
S.Ct. at 392. Second, the Court stated that an extraterritorial-    appeals, however, modified *128 the trial court's judgment,
jurisdiction statute conferring broader powers than those at        holding that because section 481.143 became effective
issue in Holt could run afoul of the “one man, one vote”            September 1, 1987, only projects in which the initial permits
principle. See id. at 72 n. 8, 99 S.Ct. at 391; id. at 79, 99       were filed between September 1, 1987 and the effective date
S.Ct. at 394-95 (Stevens, J., concurring) (noting the Court's       of the Ordinance (August 10, 1992) were not subject to the
“limited” holding and stating that extraterritorial jurisdiction    strictures of the Ordinance. Petitioners contend that the court
“might sometimes operate to deny the franchise to individuals       of appeals erred in modifying the trial court's judgment in this
who share the interests of their voting neighbors”).                manner.

In this case, by contrast, the Petitioners appear to bear most      Generally, the right to develop property is subject to
of the burdens and the City appears to enjoy most of the            intervening regulations or regulatory changes. See Connor v.
benefits. Perhaps the extraterritorial jurisdiction at issue here   City of University Park, 142 S.W.2d 706, 709 (Tex.Civ.App.
is onerous enough to violate the Petitioners' constitutional        —Dallas 1940, writ ref'd). In adopting sections 481.141–.143
rights. However, though they hint at it, the Petitioners do not     of the Texas Government Code on September 1, 1987, the
brief this issue, and the Court properly omits considering it.      Texas Legislature significantly altered this rule by requiring
See TEX. R. APP. P. 38.1(h). On the other hand, I think that        that each permit in a series required for a development
this is a serious question that should be kept in mind.             project be subject to only the regulations in effect at
                                                                    the time of the application for the project's first permit,
                                                                    and not any intervening regulations. The stated purpose
Justice ABBOTT delivered the opinion of the Court on                of the statute was to establish requirements relating to
Motion for Rehearing as to Section VI, in which Chief Justice       the processing and issuance of permits and approvals
PHILLIPS, Justice HECHT, Justice OWEN, and Justice                  by governmental regulatory agencies in order to alleviate
GONZALES join.                                                      bureaucratic obstacles to economic development. See Act of
                                                                    May 30, 1987, 70th Leg., R.S., ch. 374, § 1, sec. 7.001(2),
We granted Petitioners' Motion for Rehearing. We now
                                                                    1987 Tex. Gen. Laws 1823, 1838, amended by Act of May 24,
withdraw Part VI of our opinion and substitute the following.
                                                                    1997, 74th Leg., R.S., ch. 794, § 1, sec. 481.141(b), 1995 Tex.
                                                                    Gen. Laws 4147, 4147, repealed by Act of June 1, 75th Leg.,
                                                                    R.S., ch. 1041, § 51(b), 1997 Tex. Gen. Laws 3943, 3966. The
                               VI                                   version of section 481.143 in effect at the time of the dispute
                                                                    provided:
Petitioners finally contend that the court of appeals erred
by holding that only projects in which the original permit                       The approval, disapproval, or
applications were filed after September 1, 1987 are required                     conditional approval of an application
to be considered on the basis of the City's regulations                          for a permit shall be considered
and ordinances in effect at the time the original permit                         by each regulatory agency solely on
applications were filed. Circle C made applications for                          the basis of any orders, regulations,
preliminary subdivision approval for five different sections of                  ordinances, or other duly adopted
the Circle C development, four of which were filed in 1985                       requirements in effect at the time the
and the fifth of which was filed in 1992. In furtherance of its                  original application for the permit is
ongoing development from these permit applications, Circle                       filed. If a series of permits is required
C applied for site development permits after the enactment                       for a project, the orders, regulations,
                                                                                 ordinances, or other requirements


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Quick v. City of Austin, 7 S.W.3d 109 (1998)


            in effect at the time the original
            application for the first permit in that                  (1) the prior operation of the statute or any prior action
            series is filed shall be the sole basis                   taken under it;
            for consideration of all subsequent
                                                                      (2) any validation, cure, right, privilege, obligation,
            permits required for the completion of
                                                                      or liability previously acquired, accrued, accorded, or
            the project.
                                                                      incurred under it;
Act of May 30, 1987, 70th Leg., R.S., ch. 374, § 1, sec.
                                                                      (3) any violation of the statute or any penalty, forfeiture,
7.003(a), 1987 Tex. Gen. Laws 1823, 1839, amended by Act
                                                                      or punishment incurred under the statute before its
of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, sec. 481.143,
                                                                      amendment or repeal; or
1995 Tex. Gen. Laws 4147, 4147, repealed by Act of June
1, 1997, 75th Leg., R.S., ch. 1041, § 51(b), 1997 Tex. Gen.           (4) any investigation, proceeding, or remedy concerning
Laws 3943, 3966.                                                      any privilege, obligation, liability, penalty, forfeiture,
                                                                      or punishment; and the investigation, proceeding, or
 [22] [23] [24] The Legislature repealed section 481.143              remedy may be instituted, continued, or enforced, and
while this case was pending before this Court. See Act of June        the penalty, forfeiture, or punishment imposed, as if the
1, 1997, 75th Leg., R . S., ch. 1041, § 51(b), 1997 Tex. Gen.         statute had not been repealed or amended.
Laws 3943, 3966. The general rule is that when a statute is
repealed without a savings clause limiting the effect of the        (b) If the penalty, forfeiture, or punishment for any offense
repeal, the repeal of that statute is usually given immediate       is reduced by a reenactment, revision, or amendment of
effect. See Knight v. International Harvester Credit Corp.,         a statute, the penalty, forfeiture, or punishment, if not
627 S.W.2d 382, 384 (Tex.1982). When a right or remedy is           already imposed, shall be imposed according to the statute
dependent on a statute, the unqualified repeal of that statute      as amended.
operates to deprive the party of all such rights that have not
                                                                  TEX. GOV'T CODE § 311.031(a), (b).
become vested or reduced to final judgment. Ordinarily, all
suits filed in reliance on the statute must cease when the
                                                                  Petitioners assert that the general savings provision of the
repeal becomes effective; if final relief has not been granted
                                                                  Code Construction Act applies to the repeal of section
before the repeal goes into effect, final relief cannot be
                                                                  481.143. See TEX. GOV'T CODE § 311.002 (application of
granted thereafter, even if the cause is pending on appeal. See
                                                                  the Code Construction Act); Knight, 627 S.W.2d at 385. The
id.; National Carloading Corp. v. Phoenix–El Paso Express,
                                                                  City argues that the general savings clause does not apply
Inc., 142 Tex. 141, 176 S.W.2d 564, 568 (1943); Dickson v.
                                                                  because a much narrower specific savings clause is included
Navarro County Levee Improvement Dist. No. 3, 135 Tex.
                                                                  in section 52 of the repealing legislation, which provides:
95, 139 S.W.2d 257, 259 (1940). The repeal of the statute in
such instances deprives a court of subject matter jurisdiction      The rules, policies, procedures, and decisions of the
over the cause. See Knight, 627 S.W.2d at 384; Dickson, 139         Texas Department of Commerce are continued in effect
S.W.2d at 259.                                                      as rules, policies, procedures, and decisions of the Texas
                                                                    Department of Economic Development until superseded by
 [25] This common-law rule of abatement may be modified             a rule or other appropriate action of the Texas Department
by a specific savings clause in the repealing legislation or        of Economic Development.
by a general savings statute limiting the effect of repeals.
Most states, including Texas, *129 have adopted some form           The validity of a rule, form, or procedure adopted,
of general savings statute. See Ruud, The Savings Clause—           contract or acquisition made, proceeding begun, obligation
Some Problems in Construction and Drafting, 33 TEX. L.              incurred, right accrued, or other action taken by or in
REV. 285, 296–97 (1955). Texas's general savings clause is          connection with the authority of the Texas Department of
codified in section 311.031 of the Government Code, which           Commerce before it is abolished under ... this section is not
states:                                                             affected by this Act. To the extent those actions continue
                                                                    to have any effect on or after September 1, 1997, they are
  (a) Except as provided by Subsection (b), the reenactment,        considered to be the actions of the Texas Department of
  revision, amendment, or repeal of a statute does not affect:      Economic Development.



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


                                                                    statute ... does not apply [to the repealed statute].”). Nor is
Act of June 1, 1997, 75th Leg., R.S., ch. 1041, §§ 52(g),           application of the general savings clause negated by necessary
52(h), 1997 Tex. Gen. Laws 3943, 3967. The City argues              implication. Although in many cases it could be argued
that because the repealing legislation contains a specific          that the Legislature's inclusion of a specific savings clause
savings clause, application of the general savings provision        despite its awareness of the existence of the general savings
is preempted. See Ex parte Mangrum, 564 S.W.2d 751, 755             clause renders the specific savings clause redundant, see
(Tex.Crim.App.1978) (“The general savings clause of the             State v. Showers, 34 Kan. 269, 8 P. 474, 477 (1885), that
Code Construction Act, however, is inapplicable to the new          is not the case here. The specific savings clause in section
Penal Code because a specific savings clause was provided           52 is not redundant of the general savings provision. The
by the Legislature.”); Scott v. State, 916 S.W.2d 40, 41            purpose of Senate Bill 932, which repealed section 481.143,
(Tex.App.—Houston [1st Dist.] 1995, no pet.); Wilson v.             was to “abolish[ ] the Texas Department of Commerce and
State, 899 S.W.2d 36, 38 (Tex.App.—Amarillo 1995, pet.              transfer [ ] its powers and duties to the newly created Texas
ref'd); see also TEX. GOV'T CODE § 311.026.                         Department of Economic Development and to certain other
                                                                    economic development programs.” Act of June 1, 1997,
We conclude that section 52 contains a specific savings             75th Leg., ch. 1041, 1997 Tex. Gen. Laws 3943, 3943.
clause. But the existence of the specific savings clause does       Sections 52(g) and (h) ensured that proceedings begun, rights
not preclude application of the general savings provision of        accrued, and other actions taken by or in connection with
the Code Construction Act to the repeal of section 481.143.         the authority of the Texas Department of Commerce before
                                                                    it was abolished were not affected by the Act, and, as of
 [26] The Legislature's adoption of the general savings clause      the September 1, 1997 effective date of the Act, would be
in the Code Construction Act indicates a general legislative        continued in effect as the actions of the newly created Texas
policy that the repeal of any statute shall not affect the prior    Department of Economic Development. This result may not
operation of that statute nor extinguish any liability incurred     have been achieved by the general savings clause. Thus, both
or *130 affect any right accrued or claim arising before            the general and specific clauses were needed to effectuate
the repeal takes effect. Given this general policy and the          legislative intent.
broad applicability of the Code Construction Act, we will
presume that the general savings clause applies unless a            Additionally, in contrast to the cases that have held that a
contrary legislative intent is shown by clear expression or         specific savings clause “trumps” application of the general
necessary implication. See Great N. Ry. Co. v. United States,       savings clause, the specific savings clause in section 52
208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567 (1908) (“[T]he        does not irreconcilably conflict with the general savings
provisions of [the general savings clause] are to be treated        clause. See TEX. GOV'T CODE § 311.026(a) (providing
as incorporated in and as a part of subsequent enactments,          that a special provision prevails over a general provision
and therefore under the general principles of construction          only if the conflict between the provisions is irreconcilable).
requiring, if possible, that effect be given to all parts of a      Accordingly, we conclude that the general savings clause
law the section must be enforced unless either by express           applies to the repeal of section 481.143. Applying the clause,
declaration or necessary implication, arising from the terms        the prior operation of section 481.143 is not affected by the
of the law, as a whole, it results that the legislative mind will   repeal, and we may address Petitioners' point of error.
be set at naught by giving effect to the provisions of [the
general savings clause].”). Here, no contrary legislative intent
is expressed or implied by section 52.
                                                                                                  A
 [27] Section 52 does not expressly state that only the
                                                                     [28] The parties do not dispute whether section 481.143
enumerated items are saved, nor does it expressly negate
                                                                    applies to subsequent permit applications when the original
application of the general savings statute. See State v.
                                                                    permit application was filed after September 1, 1987, such as
Fenter, 89 Wash.2d 57, 569 P.2d 67, 70 (1977) (en banc)
                                                                    the one application for preliminary subdivision approval filed
(“Although [the specific savings clause] exempts three
                                                                    in 1992. The issue we must decide is whether the statute is
categories from repeal and thus acts as a mini-savings statute,
                                                                    applicable to Circle C's subsequent permit applications filed
it does not expressly state that these three categories are
                                                                    after September 1, 1987, when the original application *131
the only three categories exempt from repeal. Therefore, we
                                                                    in the series was filed before September 1, 1987, such as
find no express legislative intent that the general savings


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Quick v. City of Austin, 7 S.W.3d 109 (1998)


the four applications for preliminary subdivision approval             administrative practices” can present bureaucratic obstacles
filed in 1985. The City argues that, in order to apply the             to both ongoing and future projects. If the statute only applies
statute to original permit applications filed before September         to projects in *132 which initial permit applications are
1, 1987, the statute must be applied retroactively, and that           filed after the statute's effective date, the benefit of the statute
the law disfavors such retroactive application. See Houston            would be denied to existing projects even though they too play
Indep. Sch. Dist. v. Houston Chronicle, 798 S.W.2d 580,                a role in the State's economic development. Accordingly, we
585 (Tex.App.—Houston [1st Dist.] 1990, writ denied); see              agree with Petitioners' construction of the statute.
also TEX. GOV'T CODE § 311.022 (“A statute is presumed
to be prospective in its operation unless expressly made                [29] Our next step is to determine whether this construction
retroactive.”). Because section 481.143 does not expressly             renders the statute retroactive, thereby invoking the
or impliedly indicate that it has a retroactive effect, the City       presumption against retroactivity. See Landgraf, 511 U.S.
asserts that the court of appeals correctly concluded that the         at 280, 114 S.Ct. 1483. As the Supreme Court observed
statute does not apply to original permit applications filed           in Landgraf v. USI Film Products, “[w]hile statutory
before September 1, 1987. 930 S.W.2d at 693. Petitioners               retroactivity has long been disfavored, deciding when a
respond that they are not requesting a retroactive application         statute operates ‘retroactively’ is not always a simple or
of section 481.143, but rather a prospective application of the        mechanical task.” Id. at 268, 114 S.Ct. 1483. The Court in
law to Circle C's subsequent permits filed after September 1,          Landgraf did not attempt to precisely define what constitutes
1987.                                                                  a retroactive law, instead preferring a “functional” approach.
                                                                       The Court instructed:
Our first task is to determine whether the Legislature has
expressly prescribed the statute's proper reach. See Landgraf                       A statute does not operate
v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128                          “retrospectively” merely because it is
L.Ed.2d 229 (1994). The statute provides that if a series of                        applied in a case arising from conduct
permits is required for a project, the ordinances in effect at the                  antedating the statute's enactment, or
time the original application for the first permit is filed shall                   upsets expectations based in prior
be the sole basis for consideration of all subsequent permits                       law. Rather, the court must ask
required for the completion of the project. Nowhere does the                        whether the new provision attaches
statute require that the original application for the first permit                  new legal consequences to events
in the series be filed after September 1, 1987. But neither                         completed before its enactment. The
does the statute expressly state that it will apply to projects                     conclusion that a particular rule
in progress before that date. Thus, the plain language of the                       operates “retroactively” comes at
statute does not expressly delineate its reach.                                     the end of a process of judgment
                                                                                    concerning the nature and extent of
Petitioners contend that the statute applies to the treatment                       the change in the law and the degree
of any subsequent permit application filed after September                          of connection between the operation
1, 1987, regardless of when the first permit was filed. This                        of the new rule and a relevant
construction is consistent with the plain language of section                       past event. Any test of retroactivity
481.143, which states that “the ... ordinances ... in effect at the                 will leave room for disagreement
time the original application for the first permit in that series is                in hard cases, and is unlikely to
filed [the ordinances in effect in 1985 in this case] shall be the                  classify the enormous variety of legal
sole basis for consideration of all subsequent permits required                     changes with perfect philosophical
for completion of the project [the subsequent permits filed by                      clarity. However, retroactivity is
                                                                                    a matter on which judges tend
Circle C in 1992].” 1 Moreover, this construction complies
                                                                                    to have “sound ... instinct[s],”
with the Legislature's mandate to construe statutes liberally to
                                                                                    and familiar considerations of fair
achieve their purposes. See TEX. GOV'T CODE § 312.006.
                                                                                    notice, reasonable reliance, and settled
If we were to apply the construction urged by the City and the
                                                                                    expectations offer sound guidance.
dissent, the statute would at least partially fail of its intended
purpose to “alleviat[e] bureaucratic obstacles” that “inhibit          Id. at 269–70, 114 S.Ct. 1483 (citations and footnote omitted).
the economic development of the state.” Obviously, “current



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Quick v. City of Austin, 7 S.W.3d 109 (1998)


Applying these principles, we conclude that our construction        State Bank of Miami, 900 S.W.2d 117, 121 (Tex.App.—
does not operate retroactively. Contrary to the court of            Amarillo 1995, writ denied) (discussing Landgraf ). Here, the
appeals' conclusion, section 481.143 does not affect any            statute merely draws upon an antecedent fact—the date of the
applications for permits filed before September 1, 1987.            first permit application—to determine what law will apply to
That would be retroactive. But applying section 481.143             subsequent permit applications.
to subsequent permit applications filed after September 1,
1987, when the original permit application was filed before         Accordingly, we hold that the court of appeals erred in
September 1, 1987, is not a retroactive application of the law.     holding that only the subsequent permit applications from
The statute operates prospectively on new permits for existing      original permit applications filed after September 1, 1987
projects. It affects only new permits to be issued in the future.   were governed by the ordinances in effect at the time of the
It does not annul or affect prior permits, or require the City to   original application.
issue a permit retroactively.

When Circle C filed its original permit applications in 1985,
                                                                                                   B
the City's ordinances in effect at that time governed the
City's evaluation of those applications. Although subsequent         [30] That does not end our inquiry, however, for we must
applications in the series required for a project would             also consider the effect of the repeal on Circle C's rights. The
normally be subject to any new ordinances and regulations           general savings clause of the Code Construction Act saves
in effect at the time of their filing, the Legislature provided     both the prior operation of the statute and “any validation,
that these subsequent applications, if filed after September        cure, right, privilege, obligation, or liability previously
1, 1987, would be governed by only the ordinances and               acquired, accrued, accorded, or incurred under it.” TEX.
regulations in effect at the time the original permit application   GOV'T CODE § 311.031(a)(2).
was filed. Thus, when Circle C filed subsequent permit
applications after September 1, 1987, the City was required         We begin by identifying Circle C's rights under section
to apply only the ordinances in effect in 1985 to those             481.143. As we have concluded, by its terms, section 481.143
applications. The statute is not retroactive merely because it      gives Circle C the right to have the City consider an
requires the City to evaluate future permits based on past law.     application for a permit “solely on the basis of any orders,
                                                                    regulations, ordinances, or other duly adopted requirements
The dissent argues that application to existing projects is         in effect at the time the original application for the permit
retroactive because it reaches back in time and attaches new        is filed,” which in this case would be the regulations and
legal consequences to past acts. But the only new legal             ordinances in effect in 1985 when the original applications for
consequences it attaches to prior acts is in determining which      preliminary subdivision approval were filed and approved.
“orders, regulations, ordinances, and other requirements”
may be applied in the future to new permits. The Legislature        The general savings clause saves this right only if it was
could have passed a law comprehensively setting out criteria        acquired, accrued, or accorded under section 481.143 before
for new permits. Instead, section 481.143 adopts by reference
                                                                    the September 1, 1997 effective date of the repeal. 2 See
to original *133 permits the appropriate orders, regulations,
                                                                    Iowa Dep't of Transp. v. Iowa Dist. Ct. for Buchanan County,
ordinances, and other requirements to apply to new permits
                                                                    587 N.W.2d 774, 776 (Iowa 1998) (“[O]ne relying on [the
—those in effect at the time the original application for the
                                                                    general savings clause] must demonstrate that the privilege
first permit in the series was filed. As the Landgraf opinion
                                                                    he seeks to save is one that he possessed, or that had vested,
states, “a statute ‘is not made retroactive merely because it
                                                                    or that had been granted prior to the date the statute providing
draws upon antecedent facts for its operation.’ ” Id. at 270 n.
                                                                    such a privilege was repealed.”). This right would not accrue
24, 114 S.Ct. 1483 (quoting Cox v. Hart, 260 U.S. 427, 435,
                                                                    until Circle C filed an application for a permit; it is only
43 S.Ct. 154, 67 L.Ed. 332 (1922)); accord Regions Hosp.
                                                                    when an application is filed that the right granted by section
v. Shalala, 522 U.S. 448, 456, 118 S.Ct. 909, 139 L.Ed.2d
                                                                    481.143 is due and attaches to the review of the application.
895 (1998); General Dynamics Corp. v. Sharp, 919 S.W.2d
                                                                    As each subsequent application for a permit is filed, Circle
861, 866 (Tex.App.—Austin 1996, writ denied); American
                                                                    C's right accrues with respect to that application. With respect
Home Assurance v. Texas Dep't of Ins., 907 S.W.2d 90, 94
                                                                    to applications filed after the repeal of section 481.143, Circle
(Tex.App.—Austin 1995, writ denied); see also Walls v. First
                                                                    C's right would not have accrued before the effective date


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Quick v. City of Austin, 7 S.W.3d 109 (1998)


of the repeal, and nothing is saved by the general savings
clause. Thus, the City may not apply current regulations               United States Fidelity & Guar. Co. v. United States ex rel.
and ordinances to its evaluation of permit applications filed          Struthers Wells Co., 209 U.S. 306, 314, 28 S.Ct. 537, 52 L.Ed.
or approved during *134 the prior operation of section                 804 (1908).
481.143, but it may do so with respect to any applications filed
after its repeal, subject, of course, to the effects, if any, of the   Texas has its own “well-entrenched legal hostility to
statute as reenacted in 1999. See Act of April 29, 1999, 76th          retroactive laws.” Houston Indep. Sch. Dist. v. Houston
Leg., R.S., ch. 73, 1999 Tex. Gen. Laws 431 to be codified at          Chronicle Publ'g Co., 798 S.W.2d 580, 585 (Tex.App.—
TEX. LOC. GOV'T CODEE § 245.001 et. seq.).                             Houston [1st Dist.] 1990, writ denied). “Texas law militates
                                                                       strongly against the retroactive application of laws,” id., and
In sum, we hold that the general savings clause applies                any doubts must be resolved against retroactive operation
to the repeal of section 481.143. Considering Petitioners'             of a statute. See Government Personnel Mut. Life Ins. Co.
point of error, we conclude that, under the 1987 version of            v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529 (1952). The
section 481.143, any subsequent permit applications filed or           Legislature has codified the presumption that statutes apply
approved between September 1, 1987 and September 1, 1997               prospectively: “A statute is presumed to be prospective in
are governed by only the rules, regulations, and ordinances in         its operation unless expressly made retroactive.” Tex. Gov't
effect in 1985 when the original applications for preliminary          Code § 311.022 (emphasis added).
subdivision approval were filed. Because we hold that this
is not a retroactive application of the statute, we reverse the        The Court misconstrues the proper temporal reach of the
court of appeals' judgment in that regard, and we modify the           statute before us. It seems reasonably clear to me that while
judgment accordingly.BAKER and Justice O'NEILL join.                   section 481.143 is not retroactive on its face, the Court's
                                                                       application of it creates a retroactive effect that can easily be
                                                                       avoided. The Court creates this retroactive effect by applying
Justice HANKINSON filed a dissenting opinion on rehearing              a statute not effective until September 1, 1987, to permit
as to Section VI, in which Justice ENOCH, Justice BAKER,               applications originally filed in 1985. Section 481.143 has
and Justice O'NEILL join.                                              retroactive effect if applied in this manner—it reaches back
                                                                       before its effective date and attaches new legal consequences
Justice HANKINSON, dissenting.                                         to past acts by changing what the law was before section
While I agree with the Court's resolution of the first issue           481.143 was enacted.
we address on rehearing, I dissent from what I perceive to
be its impermissible and unnecessary retroactive application           Before the Legislature enacted section 481.143, under well-
of Texas Government Code § 481.143. For the reasons                    established law cities could pass or amend ordinances in
expressed by the court of appeals, 930 S.W.2d 678, 693, I              the proper exercise of their police power, and citizens were
would hold that for section 481.143 to apply to a particular           bound by those intervening ordinances even if they were
series of permits, the first permit in the series must have been       passed while an application for a permit was pending. See
filed after the effective date of section 481.143.                      *135 Connor v. City of Univ. Park, 142 S.W.2d 706,
                                                                       709 (Tex.Civ.App.—Dallas 1940, writ ref'd). Thus, permit
             The presumption is very strong that
                                                                       applications were subject to any intervening ordinances
             a statute was not meant to act
                                                                       and amendments. Section 481.143 essentially eliminated
             retrospectively, and it ought never to
                                                                       any intervening ordinances and amendments passed by any
             receive such a construction if it is
                                                                       city, including changes to fire, electrical, plumbing, and
             susceptible of any other. It ought not
                                                                       mechanical codes designed to further public safety. For
             to receive such a construction unless
                                                                       example, if someone filed an application for a building
             the words used are so clear, strong,
                                                                       permit in 1970, under the Court's reading of section 481.143,
             and imperative that no other meaning
                                                                       that person would only have to meet the safety standards
             can be annexed to them or unless the
                                                                       of 1970 when applying in 1987 for the next permit in
             intention of the legislature cannot be
                                                                       the series, and any ordinances passed in the intervening
             otherwise satisfied.
                                                                       seventeen years would have no effect. In this manner, the
                                                                       Court's reading attaches new legal consequences to the
                                                                       1985 permit applications and retroactively changes the law


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               22
Quick v. City of Austin, 7 S.W.3d 109 (1998)


governing those 1985 applications, which were filed before         not be applied retroactively without the Legislature itself
the Legislature enacted section 481.143 in 1987. This is not       saying so, without it's having weighed the consequences
“merely draw[ing] upon an antecedent fact,” as the Court           after considering the potential effects of retroactivity and
proposes. And I must emphasize that the Court's reading            expressed its decision that those consequences are desirable.
is what creates the retroactive effect, not the language of        Courts simply are not empowered or endowed with the
the Legislature as expressed in the statute itself; the Court      jurisdiction or the resources to make those kinds of open-
agrees that the statute “does not expressly delineate its          ended policy decisions.
reach.” Precisely because section 481.143 contains no clear
expression that it operates retroactively, and because the Code    The Court struggles to find legislative intent on retroactivity
Construction Act mandates that statutes operate prospectively      where none is apparent and uses that phantom intent to *136
in the absence of such clear expression, we are bound to read      circumvent the express language of the Code Construction
the statute in a way that does not create a retroactive effect.    Act. Nothing in the language of the statute or its history
                                                                   supports the Court's assertion that the usual prospective
Moreover, the Legislature knows precisely how to make the          reading would cause the statute to “at least partially fail
statute retroactive—it did so by amending section 481.143          of its intended purpose.” Without some expression by the
in 1995 so that the section then expressly applied to projects     Legislature that it intended section 481.143 to apply to
“in progress on or commenced after” September 1, 1987. Act         existing projects, how do we know whether it intended
of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, 1995 Tex.          precisely the opposite, perhaps as part of a legislative
Gen. Laws 4147. That amendment bolsters the conclusion             compromise, or perhaps as a result of the Legislature's
that we should not apply the 1987 version, which was not           understanding that statutes operate prospectively in the
expressly retroactive, to have a retroactive effect. Thus, the     absence of clear expression to the contrary. Moreover, how
Court's reading of the 1987 statute has the effect of making the   can we liberally construe a statute on a point on which the
1995 amendments mere surplusage. The 1995 amendments               statute is admittedly silent, without any proof of legislative
also included an exemption for adopting the kind of codes          intent, and when the Code Construction Act unequivocally
affecting public safety mentioned above, highlighting that the     mandates the opposite of the Court's reading. Whether to
Legislature is the proper body to decide what the best policy      apply a statute retroactively is, for very good reasons, a
is and how best to redress particular problems.                    legislative policy choice:

The practical danger of ignoring the Legislature's policy                      Because      [prospectivity]    accords
choice, as expressed in the Code Construction Act, and                         with widely held intuitions about
applying section 481.143 retroactively, is that we have no                     how statutes ordinarily operate, a
idea what rules, regulations, ordinances, or orders will be                    presumption against retroactivity will
affected. Section 481.143 applies not just to the city of                      generally coincide with legislative
Austin, or to all cities in Texas, but to every “agency,                       and public expectations. Requiring
bureau, department, division, or commission of the state or                    clear intent assures that Congress
any department or other agency of a political subdivision                      itself has affirmatively considered
that processes and issues permits.” TEX. GOV'T CODE §                          the potential unfairness of retroactive
481.142(4). The statute applies not just to land development                   application and determined that it
projects, but to every “endeavor over which a regulatory                       is an acceptable price to pay for
agency exerts its jurisdiction and for which a permit is                       the countervailing benefits. Such a
required before initiation of the endeavor.” TEX. GOV'T                        requirement allocates to Congress
CODE § 481.142(3). The definition of permit is equally                         responsibility for fundamental policy
broad: “ ‘Permit’ means a license, certificate, approval,                      judgments concerning the proper
registration, consent, permit, or other form of authorization                  temporal reach of statutes, and has the
required by law, rule, regulation, or ordinance....” Id. §                     additional virtue of giving legislators
481.142(2). In striving to reach its result in this particular                 a predictable background rule against
case, the Court ignores the fact that the implications of                      which to legislate.
its decision are unknown. I would argue that is precisely
                                                                   Landgraf v. USI Film Prods., 511 U.S. 244, 272–73, 114
why the Legislature has codified its decision that statutes
                                                                   S.Ct. 1483 (1994). Through the Code Construction Act,


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           23
Quick v. City of Austin, 7 S.W.3d 109 (1998)


                                                                         prospectively. Applying section 481.143 prospectively, I
the Legislature has clearly expressed its policy choice
                                                                         would hold that because section 481.143 was not effective
that its laws will not operate retroactively without its
                                                                         until 1987, it did not apply to Circle C's 1985 applications
own deliberation and manifest expression of the value of
                                                                         for preliminary subdivision approval. I would further hold
retroactivity in the statute at issue. Ignoring the Code
                                                                         that section 481.143 governs Circle C's one application
Construction Act, especially in the absence of any statutory
                                                                         filed after the effective date of section 481.143 and before
language or legislative history to the contrary, is, in my view,
                                                                         the SOS ordinance became effective, but that any other
tantamount to legislating.
                                                                         applications in that series must have been filed before
                                                                         section 481.143 was repealed for section 481.143 to govern
The Court points out that “[n]owhere does [the 1987] statute
                                                                         those applications. Any other reading flouts our longstanding
require that the original application for the first permit be
                                                                         principles disfavoring retroactive lawmaking. Accordingly, I
filed after September 1, 1987.” In the face of that legislative
                                                                         dissent.
silence, and in light of the statutory presumption against
retroactive application, I conclude we must apply the statute



Footnotes
1      The Barton Springs Edwards Aquifer is that portion of an underground system of water-bearing formations in Central Texas that
       recharges Barton Springs. Barton Springs is a spring surfacing in Austin that is fed by and feeds Barton Creek. Barton Springs and
       Barton Creek provide a significant source of Austin's water supply. Barton Springs also contributes to a unique recreational attraction
       in Austin, Barton Springs Pool, a spring-fed outdoor swimming pool open throughout the year.
2      In a de novo review, the reviewing tribunal determines each issue of fact and law without according deference to the original tribunal's
       decision. See Post at 116.
3      As support for this contention, Petitioners rely on a water quality analysis of sixteen rainfall samples taken at three locations. The
       City, however, elicited testimony that the water quality analysis of the samples was unreliable because not enough rain was collected
       and several of the samples were contaminated.
4      Petitioners introduced into evidence a label from a bottle of Evian natural spring water showing a nitrate concentration exceeding
       the runoff requirements under the Ordinance's technical rules. Because the purpose of the Ordinance's rules is to ensure that no
       increases occur in the average annual loadings of constituents such as nitrogen, Petitioners' comparison to Evian merely establishes
       that natural runoff in the Barton Creek watershed has a lower concentration of nitrates than the spring waters producing Evian bottled
       water. Accordingly, this evidence is actually not probative of whether compliance with the technical requirements of the Ordinance
       is possible.
1      Chapter 481 was amended in 1995. See Act of May 24, 1995, 74th Leg., R.S., ch. 794, § 1, 1995 Tex. Gen. Laws 4147, repealed
       by Act of June 1, 1997, 75th Leg., R.S., ch. 1041, § 51(b), 1997 Tex. Gen. Laws 3943, 3966. The 1995 amendments provided that
       section 481.143 applied “to all projects in progress on or commenced after the effective date of this subchapter as originally enacted.”
       Act of May 24, 1995, 74th Leg., R.S. ch. 794, § 1, sec. 481.143(b), 1995 Tex. Gen. Laws 4147, 4147 (repealed). Although the 1995
       amendments were expressly made retroactive to September 1, 1987, Circle C concedes that the amendments do not apply to its claims.
       See Act of May 24, 1995, 74th Leg., R.S., ch. 794, § 3, 1995 Tex. Gen. Laws 4147, 4148 (“Nothing in this Act shall be construed
       to diminish or impair the rights or remedies of any person or entity under a final judgment rendered by, or in any pending litigation
       brought in, any court concerning an interpretation of the provisions of Subchapter I, Chapter 481, Government Code.”). Subchapter
       I was reenacted in 1999 as Local Government Code, Subtitle C, Title 7, Chapter 245, but the reenacted version contains a similar
       provision and is thus also inapplicable to this litigation. See Act of April 29, 1999, 76th Leg., R.S., ch. 73, § 4, 1999 Tex. Gen. Laws
       ___, ___ (to be codified at TEX. LOC. GOV'T CODE E § ___). Moreover, given the Legislature's mandate, we do not consider the
       1995 amendments in construing section 481.143 as enacted.
2      It is unclear whether the terms “accorded” and “acquired” relate to rights. Certainly, not all terms in the general savings clause relate
       to rights—for example, incur, which generally means “become liable or subject to” would not refer to a party's rights. In addition,
       if we apply the general definition of “accord,” which is “grant” or “allow,” then any right of action granted or allowed by a statute
       would be saved despite a repeal, regardless of whether it had accrued before repeal. This cannot have been the Legislature's intent in
       enacting the general savings clause, for repeals of statutory causes of action would have no effect. Accordingly, we will apply these
       terms, but in the more limited sense of affording the right when due, rather than when granted.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        24
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)




                                                                  [2]   Costs
                    766 S.W.2d 264                                          Declaratory Judgment
                Court of Appeals of Texas,
                                                                        In an action under the declaratory judgments act
                        Amarillo.
                                                                        in which the parties stipulated that reasonable
 RAW HIDE OIL & GAS, INC., Raw Hide Production                          and necessary attorney fees were $200,000
   Company, Inc., & J.C. McCollough, Appellants,                        through trial, $37,500 for an appeal to the Court
                                                                        of Appeals and $17,500 for an application for
                         v.
                                                                        writ of error to the Texas Supreme Court, but
      MAXUS EXPLORATION COMPANY.
                                                                        did not stipulate that any party was entitled to
           No. 07–88–0011–CV. | Dec. 31,                                recovery of attorney's fees, an award of attorney
       1988. | Rehearing Denied Feb. 15, 1989.                          fees was appropriate where the pleadings and
                                                                        evidence were sufficient to support both the
An action was brought to determine title and ownership                  declaratory judgment action and the judgment
between the owner of gas rights and the owner of oil and                rendered. V.T.C.A., Civil Practice & Remedies
casinghead gas rights under two separate mineral leases on              Code §§ 37.001 et seq., 37.002(b).
a tract of land. The 69th District Court, Moore County,
Bill Sheehan, J., found for the gas rights owner, and the               3 Cases that cite this headnote
oil and casinghead gas rights owner appealed. The Court of
Appeals, Pirtle, J., held that: (1) attorney fees were properly   [3]   Mines and Minerals
awarded to gas rights owner; (2) jury instruction defining                  Trial
“oil” was proper under the circumstances; (3) refusal to                In oil and gas rights case, definition of “oil” as
submit requested special issues was proper; and (4) sufficient          “crude petroleum oil, that is liquid both in the
evidence supported jury finding that gas produced from wells            reservoir and at the surface, that is native to the
during court ordered test was gas rights gas.                           reservoir and that is producible under normal
                                                                        operating conditions” was appropriate in case
Affirmed.                                                               in which the central issue was whether the gas
                                                                        rights owner or the oil and casinghead gas rights
                                                                        owner owned gas produced by well. V.T.C.A.,
 West Headnotes (16)                                                    Natural Resources Code § 86.002(10).

                                                                        2 Cases that cite this headnote
 [1]     Administrative Law and Procedure
            Collateral Attack
                                                                  [4]   Mines and Minerals
         Mines and Minerals                                                 Pleading and Evidence
             Form of Remedy
                                                                        Party drilling and completing wells in a
         Action to establish ownership and title to gas                 manner which created allocation and ownership
         produced from formations under property and to                 problems bore the burden of proving percentages
         recover damages for gas allegedly converted by                 of gas rights gas and casinghead gas produced by
         competing mineral rights owner was one which                   well.
         involved title and ownership rights to property
         and thus was properly within jurisdiction of trial             1 Cases that cite this headnote
         court, and did not constitute an impermissible
         collateral attack on any railroad commission             [5]   Mines and Minerals
         classification of oil and gas wells.                               Trial
         Cases that cite this headnote                                  Jury special issue regarding allocation of
                                                                        percentages of gas rights gas and casinghead gas
                                                                        produced by wells was rendered inconsequential



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


       by jury's answer to special issue finding that none           error in refusing to permit them to present
       of the formations produced oil and that all the               evidence concerning another lease for appellate
       wells were completed or perforated in or close                review; even assuming that casinghead gas rights
       to those formations and could have produced                   owner timely requested admission of evidence
       exclusively from those formations, thus making                contained in offer of proof and bill of exceptions,
       the gas produced from those wells gas rights gas,             court did not rule on offer and no objection was
       rather than casinghead rights gas.                            made to court's failure to rule prior to charge
                                                                     being read to jury. Rules Civ.Evid., Rule 103(a)
       Cases that cite this headnote                                 (2), (b); Rules App.Proc., Rule 52(a, b), (c)(11).

                                                                     3 Cases that cite this headnote
 [6]   Mines and Minerals
           Trial
       Refusal to submit special jury issue numbers           [9]    Exceptions, Bill Of
       requested by oil and casinghead gas rights                        Necessity for Certificate
       owner, which requested a finding as to whether                Offer of proof and bill of exceptions not
       gas currently being produced by the gas rights                approved by trial court or opposing counsel,
       owner was in a liquid state on a particular date              which was not a bystander's bill, did not qualify
       and the percentage of gas being produced of the               as a formal bill of exception and was inadequate
       gas rights owner's current production, was proper             to preserve appellate complaint. Rules Civ.Evid.,
       in light of jury's findings that gas rights owner             Rule 103(a)(2), (b); Rules App.Proc., Rule 52(a,
       had not converted any oil after oil and casinghead            b), (c)(11).
       gas rights owner obtained its rights.
                                                                     5 Cases that cite this headnote
       Cases that cite this headnote
                                                              [10]   Appeal and Error
 [7]   Mines and Minerals                                               Against Weight of Evidence
           Trial                                                     Factual sufficiency points of error concede
       Oil and casinghead gas rights owner was not                   conflicting evidence on an issue, yet maintain
       entitled to special jury instructions dealing with            that the evidence against the jury's finding is so
       gas rights owner's alleged failure to case off, save          great as to make the finding erroneous.
       or protect oil in casinghead gas the amount of oil
       affected, whether failure was malicious, and the              39 Cases that cite this headnote
       appropriate amount of damages, absent evidence
       that gas rights owner ever encountered oil in          [11]   Appeal and Error
       any well so as to trigger gas rights owner's duty                Verdict, Findings, or Decision
       under lease agreement to use reasonable care and
                                                                     Legal sufficiency points of error assert a
       caution to case off oil or casinghead gas. Rules
                                                                     complete lack of evidence on an issue, and are
       App.Proc., Rule 81(b)(1).
                                                                     designated as “no evidence points” or “matter
       Cases that cite this headnote                                 of law points,” depending upon whether the
                                                                     complaining party had the burden of proof.

 [8]   Appeal and Error                                              38 Cases that cite this headnote
          Exclusion of Evidence
       Appeal and Error                                       [12]   Appeal and Error
          Admission or Exclusion of Evidence                              Review Dependent on Whether Questions
       Oil and casinghead gas rights owner which                     Are of Law or of Fact
       failed to make an offer of proof or bill of                   Appeal and Error
       exception did not preserve trial court's alleged


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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


            Great or Overwhelming Weight or                         pertinent formation underlying mineral lease was
        Preponderance                                               supported by the record.
        On evidence issue challenged by party which
                                                                    Cases that cite this headnote
        had burden of proof on issue, the appropriate
        standard of review was whether the jury's finding
        was inappropriate as a matter of law or whether      [16]   Mines and Minerals
        such finding was against the great weight and                   Title in General
        preponderance of the evidence.                              The mere existence of oil within a geological
                                                                    formation does not mean that all wells producing
        87 Cases that cite this headnote
                                                                    from that formation are oil wells.

 [13]   Mines and Minerals                                          Cases that cite this headnote
            Pleading and Evidence
        Jury finding that 100% of gas produced from
        wells during court-ordered test was gas rights
        gas, rather than casinghead gas, was not against    Attorneys and Law Firms
        the great weight and preponderance of the
                                                            *266 J.R. Lovell, Cynthia A. Quetsch, Lovell & Lyle,
        evidence.
                                                            Dumas, Parker McCollough, Georgetown, for appellants.
        3 Cases that cite this headnote
                                                            Frank Douglass, Tom W. Reavley, Ray Donley, Scott,
                                                            Douglas & Luton, Harlow Sprouse, Underwood, Wilson,
 [14]   Mines and Minerals                                  Berry, Stein & Johnson, Austin, for appellee.
            Pleading and Evidence
                                                            Before REYNOLDS, C.J., and DODSON and PIRTLE, JJ.
        Jury finding that no oil existed in geological
        formations underlying oil and casinghead gas        Opinion
        rights owner's lease was supported by sufficient
        evidence; there was expert testimony that wells     PIRTLE, Justice.
        were not producing oil, that oil produced during
        court-ordered test was not oil production by any    This action involves a title and ownership dispute between
        standards, that gas produced from wells was not     the gas rights owner and the oil and casinghead gas rights
        casinghead gas, that well in question and nearby    owner, under two separate mineral leases on a tract of land
        nine gas wells never produced any oil, and that     situated in Moore County, Texas. Throughout this opinion,
        oil production was unlikely under lease due to      gas belonging to the owner of the gas rights will be referred
        high structural elevation of geological formation   to as “gas rights gas,” whereas gas belonging to the owner of
        and application.                                    the oil and casinghead gas rights will be referred to simply as
                                                            “casinghead gas.”
        1 Cases that cite this headnote
                                                            Diamond Shamrock Exploration Company, now known as
                                                            Maxus Exploration Company (both generally referred to as
 [15]   Mines and Minerals
                                                            Maxus), the gas rights owner, brought suit against Raw
            Pleading and Evidence
                                                            Hide Oil & Gas, Inc. (Raw Hide Oil) and J.C. McCollough
        Exclusion of oil and casinghead gas rights          (McCollough), the oil and casinghead gas rights owner,
        owner's exhibit consisting of an excerpt from an    seeking damages for conversion of gas belonging to Maxus
        annual report complied by oil and gas division      and declaratory relief to determine its ownership rights in
        of railroad commission was not such a denial        future production from certain formations under that tract
        of casinghead gas rights owner's rights as to       of land. Raw Hide Production Company, Inc. (Raw Hide
        cause a rendition of an improper judgment;          Production) intervened in the suit, alleging that it owned an
        finding that oil could not be produced from         interest in the oil and casinghead gas rights. Raw Hide Oil,
                                                            Raw Hide Production and McCollough (collectively referred


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


to as Raw Hide) counterclaimed, seeking a declaratory             into a gas mining lease (the 1938 Coffee lease). This lease
judgment that Maxus had converted oil and casinghead gas,         conveyed to Shamrock the exclusive right to prospect for,
alleging that Maxus had failed to case off, save and protect      drill, and produce “gas” on Section 237, Block 3–T, T & NO
their oil and casinghead gas rights. A pretrial court order       Ry. Co. Survey, Moore County, Texas. The 1938 Coffee lease
provided for supervised testing of the wells at issue. Proceeds   specifically excluded “all of the oil and casinghead gas (as
from the sale of gas produced during the test period were         casinghead gas is defined by existing law).” Paragraph 12 of
deposited into the registry of the court pending determination    the 1938 Coffee lease provides:
of ownership.
                                                                              12. If at any time the holder and
Raw Hide appeals from an adverse judgment, rendered upon                      owner of the gas and gas rights granted
a jury verdict favorable to Maxus. The judgment provides,                     under the terms of this lease shall,
inter alia, that Maxus owns the exclusive right to complete                   in the drilling on said premises for
and produce wells in certain formations, productive of gas                    gas, encounter oil in any well to be
rights gas only, and that certain Raw Hide wells were                         drilled under the terms hereof, then
producing gas which belonged to Maxus. The judgment                           the lessee herein shall use reasonable
permanently enjoined Raw Hide from producing gas from                         care and caution to case off any such
certain formations under the lease and awarded Maxus                          oil and/or casinghead gas that may be
damages and attorney's fees.                                                  encountered therein, and likewise if at
                                                                              any time hereafter during the existence
By eleven points of error, with corresponding numbers, Raw                    of this lease the holder and owner of
Hide contends that the trial court erred in (1) awarding                      the oil and oil rights in and to said
attorney's fees to Maxus; (2) submitting an *267 improper                     premises shall, in the drilling for and
definition of the term “oil” following special issue number                   the production of oil and casinghead
seven; (3) placing the burden of proof in special issue number                gas thereon, encounter gas in any well
three on Raw Hide; (4) rendering judgment, claiming that                      or wells being so drilled, then such
there is no evidence to support the answer to special issue                   person shall use reasonable care and
number three or, in the alternative, that said answer is                      caution to case off, save and protect
against the great weight and preponderance of the evidence;                   any such gas so encountered, it being
(5) awarding the funds in the court's registry to Maxus;                      the intention hereof that the holder
(6) refusing to submit Raw Hide's requested special issue                     and owner of the gas and gas rights,
numbers one and two, claiming that there was sufficient                       and the holder and owner of the oil
evidence to support their submission; (7) refusing to submit                  and casinghead gas and rights therein
Raw Hide's requested special issue numbers three, four,                       in and to said premises, shall each
five, and six, claiming that there was sufficient evidence to                 use reasonable care and caution in the
support their submission; (8) excluding evidence pertaining                   production of such respective products
to the Powell “C” lease; (9) rendering judgment, claiming                     as will save and protect the product of
that there is no evidence to support the answer to special                    the other from waste.
issue number seven or, in the alternative, that said answer is
                                                                  By assignment, Maxus holds current title to the gas rights
against the great weight and preponderance of the evidence;
                                                                  originally conveyed to Shamrock under the 1938 Coffee
(10) excluding defense exhibit number seventy-two; and (11)
                                                                  lease.
declaring that certain formations under Section 237 are gas
zones and not productive of oil. We affirm the judgment of
                                                                  There are five geological formations, relevant to this dispute,
the trial court for the reasons now to be stated.
                                                                  located under the tract covered by the 1938 Coffee lease.
                                                                  From top to bottom, they are the Red Cave, Brown Dolomite,
                                                                  White Dolomite, Moore County Lime, and Arkosic Dolomite
                   Overview of the Facts                          formations. 1

A brief review of the facts is essential. In 1938, The Shamrock
                                                                  In 1938, Shamrock drilled the Coffee H–1 well on the lease.
Oil and Gas Corporation (Shamrock) and W. Coffee entered
                                                                  This well was completed throughout the Brown Dolomite and


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


Moore County Lime formations. Since completed, the Coffee        In May 1985, Raw Hide Production completed the Raw
H–1 well has continuously produced gas, except during times      Hide Fate well Nos. 4, 5, and 6. Although these wells were
when it was shutin or being reworked. The Coffee H–1             perforated only in the Arkosic Dolomite, the top perforations
produced approximately 23.1 BCF (billion cubic feet) of gas      were only a few feet from the bottom of the Moore County
and no oil from 1938 to June 1987, the latest reporting period   Lime. Strickland stated that these wells were also fracture
prior to trial.                                                  treated in a way that could result in gas being produced from
                                                                 the Moore County Lime.
On May 25, 1981, Wayne Jones obtained an oil and
casinghead gas lease from several parties covering all but       On November 14, 1985, the parties entered into an agreed
80 acres of section 237 (the Fate lease). Jones subsequently     testing order. The order provided that Raw Hide would
assigned the Fate lease to Flatiron Corporation. On November     operate the wells during the testing period. Maxus was
25, 1983, Raw Hide Oil entered into a farmout agreement          permitted to run logs, conduct bottom hole pressure and
 *268 with Flatiron in which Raw Hide Oil agreed to drill        temperature surveys, and install temporary gas flow lines
two wells, with the option of drilling ten additional wells,     from the wells to transport the gas produced. Proceeds from
on the E/2 of Section 237, in exchange for an assignment         the sale of gas produced during the test period were to be
of Flatiron's oil and casinghead gas rights on 20 acres          deposited into the registry of the court, pending distribution
surrounding each well drilled. Flatiron retained an overriding   upon determination of the merits of the case.
royalty and an optional participating working interest in the
wells drilled. Raw Hide Oil subsequently became the owner        The initial phase of agreed testing commenced on January
of all oil and casinghead gas rights under the Fate lease, and   2, 1986, but was prematurely terminated by Raw Hide on
on March 21, 1984, Raw Hide assigned an overriding royalty       January 28, 1986. The second five day preflow testing phase
to McCollough.                                                   never started because Raw Hide shut in all of its wells.
                                                                 From January 3rd to the 24th, all ten Raw Hide Fate wells
Raw Hide Production drilled the Raw Hide Fate well Nos. 9,       were in operation. On the 25th and 26th only four wells
10, 11, and 12 on the lease in June and July 1984. Richard       were producing. On the 27th and 28th, only two wells were
Strickland, a petroleum engineer, reported that many of the      producing. The average barrels of oil produced per well per
perforations in these wells were completed in the Brown          day during the test period was 0.049, with an average daily
Dolomite and Moore County Lime formations, the same              value of $0.93. The wells produced an average of 225 MCF of
formations from which the Coffee H–1 well has produced gas       gas per well per day, with an average daily value of $562.50.
since 1938.                                                      During the last nine days of the test, no oil was produced
                                                                 from any well. There were seven other days when no oil
In April 1985, after the instant lawsuit was commenced, Raw      was produced from any of the Raw Hide Fate wells. Raw
Hide Production completed the Raw Hide Fate well Nos. 3,         Hide disputed the test results by producing evidence that the
7, and 8. The Raw Hide Fate well No. 3 also has perforations     gathering system, designed and installed by Maxus and used
within the same formation from which the Coffee H–1 well         to collect the substances produced from the well during the
is producing. Strickland reported that the Raw Hide Fate         test, prevented oil production from the wells.
well No. 8 has no perforations in the Moore County Lime,
but has some perforations in the Arkosic Dolomite. The top       In response to special issues, with corresponding numbers,
perforations in the Arkosic Dolomite are only a few feet from    the jury found that: (1) the Raw Hide Fate wells were
the bottom of the Moore County Lime. There was evidence          capable of producing gas rights gas from the Red Cave,
that the Fate well No. 8 was completed and fracture treated      Brown Dolomite, White Dolomite, and Moore County Lime
in a manner that would indicate a possibility that the well      formations; (2) the Raw Hide Fate wells produced some gas
was capable of producing gas from the Moore County Lime          rights gas; (3) the Raw Hide Fate wells had produced 100%
as well as the Arkosic Dolomite. The Fate well No. 7 was         gas rights gas and no *269 casinghead gas during the court-
drilled through the Moore County Lime and a few feet into        ordered test period; (4) Raw Hide vented 2,623.86 MCF of
the Arkosic Dolomite; however, it was filled with cement up      gas rights gas from its Fate wells prior to the court-ordered
to a point in the Red Cave formation.                            test; (5) the fair market value of the gas rights gas vented
                                                                 prior to the court-ordered test was $5,247.72; (6) Maxus had
                                                                 peaceable and adverse possession of the leasehold right to



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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


produce natural gas from the Dolomite and Moore County              judgment, (2) there was no evidence that the formations were
Lime formations above 347 feet above sea level for at least the     not productive of oil, and (3) the judgment was a collateral
ten consecutive years prior to June 1, 1986; (7) no oil exists in   attack on the Railroad Commission's classification of the
the Red Cave, Brown Dolomite, White Dolomite and Moore              Raw Hide Fate wells, citing Amarillo Oil Co. v. Energy–Agri
County Lime formations under the Raw Hide Fate Lease; and           Products, Inc., 731 S.W.2d 113 (Tex.App.—Amarillo 1987,
(8) subsequent to June 1984, Maxus did not convert any oil          writ granted). We disagree. 3
or casinghead gas on the E/2 of Section 237, owned by Raw
Hide Production or McCollough.                                       [1] The first and second subpoints are discussed more
                                                                    fully under other points of error addressed hereinbelow. In
In accordance with the jury verdict, the trial court entered        considering the jurisdictional question presented by the third
judgment and decreed that: (1) pursuant to the Uniform              subpoint, we note that the pleadings and evidence show that
Declaratory Judgments Act, 2 Maxus owned the exclusive              Maxus' cause of action was one to establish the ownership
and sole right to complete wells in and produce gas from            of and title to gas produced from formations under the Fate
the Red Cave, Brown Dolomite, White Dolomite, and                   lease, and to recover damages for the gas converted by
Moore County Lime formations under the lease, since these           Raw Hide. Consequently, this action is one which involves
formations were gas zones and not productive of oil; (2)            title and ownership rights to property, and it is properly
pursuant to the Uniform Declaratory Judgments Act, the gas          within the trial court's jurisdiction. Furthermore, this action
produced by Raw Hide Production from the Fate lease was             does not constitute an impermissible collateral attack on any
gas owned by Maxus and that all funds in the registry of the        Railroad Commission *270 classification. Dorchester Gas
court pursuant to the court-ordered tests were the property         Prod. Co. v. Harlow Corp., 743 S.W.2d 243, 251 (Tex.App.
of Maxus; (3) Raw Hide Oil and Raw Hide Production were             —Amarillo 1987, writ requested). Accordingly, we overrule
permanently enjoined from producing gas from the Raw                the jurisdictional attack presented by the third subpoint of
Hide Fate lease in the Red Cave, Brown Dolomite, White              point of error number eleven. We also overrule the first and
Dolomite, and Moore County Lime formations; (4) all funds           second subpoints, which are analogous to issues raised in
in the registry of the court were to be distributed to Maxus; (5)   points of error discussed hereinbelow.
Maxus shall recover from Raw Hide Production $5,247.72 in
damages; (6) Raw Hide shall take nothing on its counterclaim        By their first point of error, Raw Hide Oil and Raw Hide
against Maxus; (7) Maxus shall recover from Raw Hide                Production attack the trial court's award of attorney's fees
Oil and Raw Hide Production jointly and severally, the              to Maxus, contending that (1) under the substantive law of
sum of $196,875 in attorney's fees; (8) Maxus shall recover         conversion, Maxus' action for conversion does not support an
from Raw Hide, jointly and severally, the sum of $3,125 in          award of attorney's fees since there was no finding of malice
attorney's fees; (9) Maxus shall recover an additional $37,500      or fraud; (2) the trial court's declaratory judgment on the
from the parties taking an appeal to the court of appeals; (10)     conversion issue cannot support an award of attorney's fees;
Maxus shall recover an additional $17,500 from the parties          (3) the trial court did not award Maxus a declaratory judgment
filing an application for writ of error to the Texas Supreme        or a judgment based upon adverse possession; (4) the trial
Court; and (11) Maxus shall recover costs and interest from         court did not award Maxus a declaratory judgment on adverse
the date of judgment as provided by statute.                        possession; and (5) the declaratory judgment rendered is not
                                                                    supported by the pleadings and cannot support an award of
                                                                    attorney's fees. We disagree and find that the pleadings and
                                                                    evidence support the judgment.
                     Merits of the Appeal

We will first discuss Raw Hide's eleventh point of error            In its third amended original petition, Maxus sought a
because that point presents a jurisdictional attack. Raw Hide       judgment under the Uniform Declaratory Judgments Act,
contends that the trial court erred in declaring that the           Tex.Civ.Prac. & Rem.Code Ann. § 37.001 et seq. (Vernon
formations under the Fate lease were gas zones and not              1986):
productive of oil, arguing the evidence does not support the
                                                                                [D]eclaring and determining that Raw
trial court's finding and that the court was without jurisdiction
                                                                                Hide Production and Raw Hide Oil &
to make that determination. In three subpoints, they contend
                                                                                Gas have failed to case off, save or
that (1) there were no pleadings to support the declaratory


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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


                                                                 1987, writ ref'd n.r.e.); Tanglewood Homes Ass'n, Inc. v.
            protect [Maxus'] gas as required under
                                                                 Henke, 728 S.W.2d 39, 45 (Tex.App.—Houston [1st Dist.]
            its Gas Lease and that gas or natural
                                                                 1987, writ ref'd n.r.e.); First National Bank at Lubbock v.
            gas liquids that may be produced from
                                                                 John E. Mitchell Co., 727 S.W.2d at 363; District Judges of
            the Raw Hide Fate wells belongs
                                                                 Collin County v. Commissioners Court of Collin County, 677
            to [Maxus]. A genuine controversy
                                                                 S.W.2d 743, 746 (Tex.App.—Dallas 1984, writ ref'd n.r.e.).
            has arisen between Plaintiff and said
                                                                 In a declaratory judgment *271 action, the award or denial of
            Defendants as to the ownership of the
                                                                 attorney's fees is within the sound discretion of the trial court,
            gas that has been and will be produced
                                                                 and the judgment will not be disturbed on appeal absent a
            by the Raw Hide Fate wells.
                                                                 clear abuse of discretion. Oake v. Collin County, 692 S.W.2d
Maxus also prayed for attorney's fees. The judgment declared     454, 455 (Tex.1985).
that Maxus owned the sole and exclusive right to gas
produced from four formations under the lease, that those         [2] Here, Maxus and Raw Hide stipulated that reasonable
formations were gas zones and not productive of oil, and         and necessary attorney's fees were $200,000 through trial,
that the gas produced by Raw Hide Production from these          $37,500 for an appeal to this Court, and $17,500 for an
formations was gas rights gas belonging to Maxus.                application for writ of error to the Texas Supreme Court.
                                                                 However, the parties did not stipulate that any party was
It is axiomatic that the Uniform Declaratory Judgments Act       entitled to recovery of attorney's fees. Raw Hide does not
should be liberally construed. Guilliams v. Koonsman, 279        attack the award as being unjust or inequitable. Under this
S.W.2d 579, 583 (Tex.1955); Tex.Civ.Prac. & Rem.Code             record, Maxus plead and proved that Raw Hide Production
Ann. § 37.002(b) (Vernon 1986). Although no particular type      and Raw Hide Oil failed to case off, save and protect its gas,
of pleading is required, the general rules regarding petitions   and that a controversy had arisen concerning ownership of
govern such actions. Anderson v. McRae, 495 S.W.2d 351,          the gas produced from the Raw Hide Fate wells. Maxus also
358 (Tex.Civ.App.—Texarkana 1973, no writ). Where no             plead for and produced evidence of attorney's fees. Hence,
special exceptions have been presented, as here, the pleading    the pleadings and evidence are sufficient to support both the
must be construed liberally in favor of the pleader. Roark v.    declaratory judgment action and the judgment rendered. As a
Allen, 633 S.W.2d 804, 809 (Tex.1982). This general rule         result, the award of attorney's fees was appropriate. Finding
of construction is applicable to declaratory judgment actions.   no abuse of discretion in the award of attorney's fees, point of
Frost v. Sun Oil Co., 560 S.W.2d 467, 473 (Tex.Civ.App.—         error number one is overruled.
Houston [1st Dist.] 1977, no writ); Anderson v. McRae, 495
S.W.2d at 358.                                                    [3] By their second point of error, Raw Hide contends that
                                                                 the trial court erred in submitting special issue number seven,
The Uniform Declaratory Judgments Act provides that the          arguing that the judge gave an improper definition of the term
court may award reasonable and necessary attorney's fees         “oil.” We disagree.
as are just and equitable. Tex.Civ.Prac. & Rem.Code Ann.
§ 37.009 (Vernon 1986). The phrase “just and equitable”          In this connection, the record shows the following instruction,
has been given a broad construction under the statute. First     jury answers, and definition of oil:
National Bank at Lubbock v. John E. Mitchell Co., 727
S.W.2d 360, 363 (Tex.App.—Amarillo 1987, no writ). Under
the Uniform Declaratory Judgments Act, attorney's fees may
                                                                                    SPECIAL ISSUE NO. 7
be awarded to a party other than the prevailing party, or to a
party defending a declaratory judgment action, even though         Do you find from a preponderance of the evidence that oil
that party sought no affirmative relief under the statute.         exists in any of the following formations under the Raw
Sears Sav. & Profit Sharing Fund v. Stubbs, 734 S.W.2d             Hide Fate Lease?
76, 80 (Tex.App.—Austin 1987, no writ); Ritchie v. City of       Answer yes or no as to each formation:
Fort Worth, 730 S.W.2d 448, 451 (Tex.App.—Fort Worth
 Red Cave Formation                                                                                                          No
 Brown Dolomite                                                                                                              No


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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


 White Dolomite                                                                                                               No
 Moore County Lime above 347 feet above sea level                                                                             No
 Below 347 feet above sea level                                                                                               No
                                                                     86.002(10) (Vernon 1978). The 1938 Coffee lease expressly
   You are instructed that the word “oil” means crude                incorporated this earlier definition of casinghead gas. Since
   petroleum oil, that is liquid both in the reservoir and at the    the wells are not productive *272 of oil under normal
   surface, that is native to the reservoir and that is producible   operating conditions, the gas produced therefrom is not
   under normal operating conditions.                                casinghead gas and is not owned by the oil and casinghead
   Raw Hide argues that the instruction was too restrictive          gas owner. Moreover, since there was evidence that some oil
   because it required the jury to determine that oil was            had been previously pumped into the well, and because there
   “producible under normal operating conditions.” Raw               was evidence that both the weather during the test and the test
   Hide alternatively sought a statutory definition that oil         equipment itself may have inhibited oil production, we find
   is “crude petroleum oil, crude petroleum, and crude oil”          that the challenged portion of the instruction was relevant.
   or “crude petroleum oil”. See Tex.Nat.Res.Code Ann. §§            Accordingly, point of error number two is overruled.
   85.001(b) and 86.002(1) (Vernon 1978). They reason that
   the existence of any oil is the critical issue regardless          [4] In their third point of error, Raw Hide contends that
   of whether the oil is producible under normal operating           the trial court erred in submitting special issue number three,
   conditions.                                                       arguing that this special issue erroneously placed the burden
In Dorchester Gas Prod. Co. v. Harlow Corp., 743 S.W.2d              of proof on Raw Hide. We disagree.
243 (Tex.App.—Amarillo 1987, writ requested), the jury
found that the two wells drilled under that lease in the Brown       Special issue number three provided and was answered as
Dolomite formation were not productive of oil. In Dorchester,        follows:
a similar jury instruction survived attack. Id. at 257. In effect,
                                                                       State the percentage of the gas produced by the Raw Hide
we have already concluded that a similar instruction was
                                                                       Fate wells during the court-ordered test that was gas rights
material.
                                                                       gas and the percentage that was casinghead gas.
A central issue in this case is which party owned the gas              In connection with Special Issue No. 3 and 4, you are
produced from the Raw Hide Fate wells, the gas rights owner,           instructed that Raw Hide has the burden of establishing by
Maxus, or the oil and casinghead gas rights owner, Raw                 a preponderance of the evidence how much of the gas they
Hide. Casinghead gas is currently defined as any vapor or              produced was not gas rights gas. You are instructed that the
gas indigenous to an oil stratum and produced with oil.                total of the percentages you find for gas rights gas and for
Tex.Nat.Res.Code Ann. § 86.002(10) (Vernon 1978). At the               casinghead gas must equal 100%.
time the 1938 Coffee lease was executed, the term casinghead
gas was defined as “any gas and/or vapor indigenous to an oil        Answer with a percentage or “0”.
stratum and produced from such stratum with oil.” Gas Waste
Prohibited, Restricting Production of Wells and Prescribing          Answer:
Penalties For Violations, ch. 120, § 2(i), 1935 Tex.Gen.Laws
318, 319, amended and codified, Tex.Nat.Res.Code Ann. §
 Gas rights gas:                                                                                                          100%
 Casinghead gas:                                                                                                              0%
 Total:                                                                                                                   100%
                                                                     peculiar knowledge of the facts to be proved. In Dorchester,
In Dorchester Gas Prod. Co. v. Harlow Corp., 743 S.W.2d
                                                                     it was undisputed that the casinghead gas rights owner had
at 256, we held that the burden of proof is not exclusively
                                                                     comingled gas rights gas from the Brown Dolomite formation
determined by which party is the plaintiff, recognizing that
                                                                     with oil and casinghead gas from other formations, and that
a consideration in determining the burden is which party has


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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


the casinghead gas rights owner had peculiar knowledge
concerning the production of gas from the formations.              [6] By their sixth point of error, Raw Hide contends that
                                                                  the trial court erred in refusing their requested special issue
Raw Hide argues that they were not in a position to have          numbers one and two, contending that there was sufficient
peculiar knowledge of the facts to be proved because both         evidence to support their submission. We disagree.
parties participated in the court-ordered test, agreed on the
manner in which the test would be conducted, and monitored        Without citation to authority, Raw Hide contends that
the test results. Raw Hide also argues that the gathering         vaporized oil belongs to the oil and casinghead gas rights
system was designed and installed by Maxus. Raw Hide              owner, although produced as gas. Referring us to evidence
reasons that since the comingling, if any, was a result of the    that oil had vaporized since 1938 and is now in a gaseous
gathering system, Maxus should bear the burden of proving         state, Raw Hide contends that the refused issues were relevant
the percentages of gas rights gas and casinghead gas.             to support its theory that Maxus had converted vaporized oil
                                                                  belonging to Raw Hide. Maxus claims that the requested issue
Maxus argues that the burden is properly on Raw Hide              is irrelevant, arguing that (1) its Coffee H–1 is not located
because (1) Raw Hide was exclusively responsible for              on the Raw Hide Fate lease and resultantly, it could not have
drilling and completing the wells in a manner that created        converted gas owned by Raw Hide; (2) since the Maxus well
the allocation problem, (2) Raw Hide was responsible for          never produced oil, any vaporized oil would not have been
operating the wells during the test period, and (3) Maxus only    casinghead gas; (3) since Raw Hide did not obtain any rights
gathered the gas and operated the lease compressor during the     to oil and casinghead gas until 1984, the reservoir's condition
test. We agree that the party drilling and completing wells in    in 1938 was irrelevant to oil converted from Raw Hide; and
a manner that creates the allocation and ownership problems       (4) Raw Hide's conversion theory was properly submitted
should bear the burden of proof.                                  and answered negatively through special issue numbers eight,
                                                                  nine, ten, and eleven.
Without citation to authority, Maxus alternatively argues
that special issue number three was rendered irrelevant by        Raw Hide requested the following special issues,
the answer to special issue number seven. An answer to            denominated one and two by them, which were refused by the
a special issue can be disregarded only when there is no          trial court.
evidence to support the answer, or when it is rendered
immaterial. A special issue is rendered immaterial when (1)         Do you find from a preponderance of the evidence that any
although properly submitted, it becomes inconsequential by          of the gas currently being produced by Maxus Exploration
other findings; or (2) it should not have been submitted.           Company was in a liquid state on May 1, 1938?
C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191,
                                                                    Answer “we do” or “we do not”
194 (Tex.1966); J.R. Neatherlin Corp. v. Baughman, 580
S.W.2d 129, 130 (Tex.Civ.App.—Houston [14th Dist.] 1979,            Answer: ______
writ ref'd n.r.e.); Estate of Lee, 564 S.W.2d 392, 394–95
(Tex.Civ.App.—Dallas 1978, writ ref'd n.r.e.).                      If you answered Special Issue No. ____ “we do”, then
                                                                    answer the following Special Issue; otherwise do [not]
 [5] Here, the answer to special issue number three was             answer the following Special Issue.
rendered inconsequential by the answer to special issue
number seven. *273 Since the jury found that none of the
formations were productive of oil and because all the Raw
                                                                    Find from a preponderance of the evidence the amount
Hide Fate wells were completed or perforated in or close to
                                                                    of gas currently being produced by Maxus Exploration
those formations and could have produced exclusively from
                                                                    Company that was in a liquid state on May 1, 1938.
those formations, the gas produced therefrom was gas rights
gas. Point of error number three is overruled.                      Answer by a percentage of the current production of Maxus
                                                                    Exploration Company.
Points of error numbers four and five present factual and legal
sufficiency points which will be discussed in conjunction with      Answer: ______
point of error number nine below.



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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


In special issue number eight, the jury found that Maxus had         Since there was no evidence that Maxus ever encountered oil,
not converted any oil or casinghead gas since 1984 on the            there was no error in failing to submit the requested special
E/2 of Section 237. Based upon this finding, the jury was            issues. Horton v. Harris, 610 S.W.2d 819, 823 (Tex.Civ.App.
not required to answer special issue numbers nine, ten, and          —Tyler 1980, writ ref'd n.r.e.). Moreover, the failure to
eleven, which were conditioned upon a finding that Maxus             submit the requested special issues could not have caused,
converted oil and casinghead gas. Special issue numbers nine,        and probably did not cause, the rendition of an improper
ten, and eleven inquired into the fair market value of the oil       judgment. Tex.R.App.P. 81(b)(1); Howard v. Faberge, Inc.,
and casinghead gas converted by Maxus.                               679 S.W.2d 644, 650 (Tex.App.—Texarkana 1987, writ ref'd
                                                                     n.r.e.). Point of error number seven is overruled.
Because Maxus produced no oil from the Coffee H–1 well,
there is no evidence that Maxus ever encountered oil or               [8] In their eighth point of error, Raw Hide contends that
casinghead gas. Hence, under the express terms of its lease,         the trial court erred in refusing to permit them to present
Maxus could not have failed to properly case off, save or            evidence concerning the Powell “C” lease. We conclude that
protect oil or casinghead gas. Moreover, the jury found that         Raw Hide failed to preserve error by an offer of proof or bill
Maxus had not converted any oil since June 1984 in its               of exception, and overrule the point of error.
answer to special issue eight. Notwithstanding the fact that we
conclude that there is no legal basis for the proposition that       At a pretrial hearing, the court granted a motion in limine
vaporized oil is “oil” for purposes of determining ownership,        concerning evidence of the Powell “C” lease, operated by
the evidence of vaporized oil was before the jury when they          Maxus and located approximately ten miles west of the instant
answered issue number eight. The failure to submit Raw               tract. In a hearing outside the jury's presence, Raw Hide
Hide's requested special issues could not have caused the            argued that Maxus opened the door to evidence regarding the
rendition of an improper judgment because said special issues        Powell “C” lease. No evidence was offered at that hearing.
were irrelevant and rendered inconsequential by the answer to        The court ruled that the circumstances did not “authorize the
special issue number eight. Tex.R.App.Proc. 81(b)(1). Point          proffer of evidence, and so it will not be allowed in the present
of error number six is overruled.                                    state of the record.” Shortly thereafter, the court provided
                                                                     Raw Hide an opportunity to make an offer of proof. However,
 *274 [7] In Raw Hide's seventh point of error, they contend         Raw Hide declined, stating that they would prefer to make
that the trial court erred in refusing their requested special       their offer later.
issue numbers three, four, five, and six, claiming that the
evidence was sufficient to warrant submission. Referring to          Prior to the close of the evidence, Raw Hide submitted to
evidence in the record that oil had vaporized and migrated           the trial court a document entitled “Offer of Proof and Bill
into the Maxus well since 1938, Raw Hide reasons that an             of Exception,” concerning the Powell “C” lease. The judge
inference is raised that Maxus did not case off, save or protect     stated that he would read it, rule on it, and file it with the clerk.
the oil as required by the 1938 Coffee lease. We disagree.           Prior to the charge being read to the jury, Raw Hide asked the
                                                                     judge if he had acted on the bill of exceptions. Viewing the
Raw Hide's requested special issues asked (1) whether Maxus          document as a formal bill and not an offer of proof, the judge
failed to case off, save or protect the oil and casinghead gas       stated that it was too voluminous for him to act upon at that
since 1938; (2) the amount of oil that Maxus produced since          time and that a ruling would be made later. The record reflects
June 1984 due to the failure to case off, save or protect the oil;   that the trial court did not rule on the offer and no objection
(3) whether the failure to case off, save or protect the oil was     was lodged to the failure to rule before the charge was read
done with malice; and (4) what sum of money, if any, should          to the jury.
be assessed against Maxus as exemplary damages for failure
to case off, save or protect the oil.                                On February 3, 1988, 105 days after the amended judgment
                                                                     was signed, a hearing was held by conference call on Raw
The 1938 Coffee lease agreement provided that if the gas             Hide's Offer of Proof and Bill of Exceptions. This document,
rights owner “encounter[s] oil in any well ... then [Maxus]          file marked February 3, 1988, contains approximately twenty
shall use reasonable care and caution to case off any such oil       pages of facts and arguments, and approximately 140 pages of
and/or casinghead gas that may be encountered therein.”              attached exhibits. The court disallowed the bill of exceptions,




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Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


except as to those matters properly and timely shown in the        weight and preponderance of the evidence. 5 By their fifth
statement of facts.                                                point of error, Raw Hide contends that the trial court erred in
                                                                   awarding Maxus the funds in the registry of the court because,
To preserve error concerning the exclusion of evidence by          as a matter of law, there was at least some casinghead gas
offer of proof, the appellate record must show that (1) the        produced during the court-ordered test period. Finally, by
substance of the evidence sought to be admitted was made           their ninth point of error, Raw Hide contends that there was no
known to the court, and (2) the court either ruled adversely       evidence to support the jury's answer to special issue number
to its admission or, after timely request, affirmatively refused   seven; or, in the alternative, the jury's answer was against the
to rule. Disposal Supply Co. Inc. v. Perryman Bros. Trash          great weight and preponderance of the evidence. We find that
 *275 Service, Inc., 664 S.W.2d 756, 762 (Tex.App.—                Raw Hide's contentions are misplaced, and will overrule point
San Antonio 1983, writ ref'd n.r.e.); O'Shea v. Coronado           of error numbers four, five, and nine for the following reasons.
Transmission Co., 656 S.W.2d 557, 564 (Tex.App.—Corpus
Christi 1983, writ ref'd n.r.e.); Tex.R.Civ.Evid. 103(a)(2) &       [10]     [11] Factual sufficiency points of error concede
(b); Tex.R.App.P. 52(a). An objection to the trial court's         conflicting evidence on an issue, yet maintain that the
refusal to rule is sufficient to preserve error for appellate      evidence against the jury's finding is so great as to make
complaint. Tex.R.App.P. 52(a). An offer of proof or objection      the finding erroneous. Factual sufficiency points of error are
to the refusal to rule on the offer must be made prior to the      designated as “insufficient evidence points” or “great weight
court's charge being read to the jury. Tex.R.App.P. 52(a) &        and preponderance points”, depending upon whether the
(b).                                                               complaining party had the burden of proof. Legal sufficiency
                                                                   points of error assert a complete lack of evidence on an
Assuming arguendo that Raw Hide timely requested the court         issue. Legal sufficiency points of error are designated as “no
to admit the evidence contained in the Offer of Proof and          evidence points” or “matter of law points”, again depending
Bill of Exceptions, the court did not rule on the offer and no     upon whether the complaining party had the burden of proof.
objection was made to the court's failure to rule prior to the     The appropriate challenge to a jury finding concerning an
charge being read to the jury. Consequently, Raw Hide did          issue upon which the complaining party had the burden of
not timely obtain a ruling on the offer nor timely object to the   proof is either a great weight *276 and preponderance
court's failure to rule.                                           point or a matter of law point. Conversely, the appropriate
                                                                   challenge to a jury finding concerning an issue upon which
[9]   We must now determine if the Offer of Proof and Bill of      the complaining party does not have the burden of proof is
Exceptions qualified as a formal bill of exception. 4 A formal     either an insufficient evidence point or a no evidence point.
bill of exception not approved by the trial court or opposing      See Calvert, “No evidence” and Insufficient evidence” Points
counsel and not a bystanders bill, is inadequate to preserve       of Error, 38 Tex.L.Rev. 361, 364–368 (1960); Glover v. Texas
appellate complaint. Sisk v. Randon, 123 Tex. 326, 70 S.W.2d       Gen. Indem. Co., 619 S.W.2d 400 (Tex.1981).
689, 692 (1934); Fountain v. Nelson, 546 S.W.2d 102, 104
(Tex.Civ.App.—Beaumont 1977, no writ); Goodpasture v.              Although Raw Hide has inappropriately designated its points
Coastal Industrial Water Authority, 490 S.W.2d 883, 885            of error, we are required to review each attack in its proper
(Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref'd n.r.e.);        context. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113–
Dyches v. Ellis, 199 S.W.2d 694, 697 (Tex.Civ.App.—Austin          114 (Tex.1976).
1947, no writ). We conclude that Raw Hide's Offer of Proof
and Bill of Exceptions does not qualify as a formal bill of        In reviewing a no evidence point, we must examine the record
exception because it was not approved by the trial court or        in the light most favorable to the finding to determine if there
opposing counsel and it is not a bystanders bill. Consequently,    is any probative evidence, or reasonable inferences therefrom,
point of error number eight is overruled.                          which supports the finding, and we must disregard all
                                                                   evidence or reasonable inferences therefrom to the contrary.
We now turn to Raw Hide's factual sufficiency and legal            Glover v. Texas Gen. Indem. Co., 619 S.W.2d at 401; Garza
sufficiency points of error numbers four, five, and nine. By       v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In reviewing
their fourth point of error, Raw Hide contends that there is no    an insufficient evidence point, we must examine the entire
evidence to support the jury's answer to special issue number      record to determine if there is some probative evidence to
three; or, alternatively, the jury's answer is against the great   support the finding, and, if there is, we must determine



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            11
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


whether the evidence supporting the finding is so weak or          Raw Hide reported that the Raw Hide Fate No. 7 produced
the answer so contrary to the overwhelming weight of the           about 63 barrels of oil during the test.
evidence as to be clearly wrong and manifestly unjust. Garza
v. Alviar, 395 S.W.2d at 823; In re King's Estate, 150 Tex.        Kent Kirkpatrick, a production engineer for Maxus, was not
662, 244 S.W.2d 660, 661–62 (1951). In reviewing matter            convinced that the test results established that these Raw Hide
of law points, we must examine the record for evidence that         *277 Fate wells were capable of commercial oil production.
supports the finding, ignoring any evidence to the contrary;       Kirkpatrick cited inconsistencies in the test results and the
and, if there is no evidence to support the finding, we must       lack of any observed preflow prior to testing. Kirkpatrick
then examine the entire record to determine if a contrary          testified that preflow would stabilize the well so that a
proposition is established as a matter of law. Holley v. Watts,    correct reading on the well's oil production could be obtained.
629 S.W.2d 694, 696 (Tex.1982); Texas & N.O.R. Co. v.              Without a preflow, the W–2 test could measure the well's oil
Burden, 146 Tex. 109, 203 S.W.2d 522, 530 (1947). In               production over a longer period of time than the 24–hour test
reviewing great weight and preponderance points, we must           period. For instance, he testified that without a preflow the
examine the entire record to determine if there is some            24–hour test could measure a well's production for a three-
evidence to support the finding, and then determine whether,       month period.
in light of the entire record, the finding is manifestly unjust.
Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); In re         Kirkpatrick also testified that Maxus' representatives had only
King's Estate, 244 S.W.2d at 661.                                  observed tank gauges, and could not be certain that the tank
                                                                   contained 100% oil. Kirkpatrick stated that on July 2, 1985,
 [12] As discussed under point of error number three above,        Raw Hide reported total oil production of approximately
Raw Hide had the burden of proof on special issue number           299 barrels on the W–2 forms. On January 2, 1986, Maxus'
three, pertaining to the percentage of gas produced from the       representatives observed the gauging of the tank and only 110
Raw Hide Fate wells during the court-ordered test period that      barrels were measured. Kirkpatrick stated that Dan Hipkins,
was gas rights gas and the percentage that was casinghead          a Raw Hide employee, had reported that no oil was sold on
gas. In that special issue the jury found that 100% of the         the lease until May 1986. At the end of the court-ordered test,
gas produced from the Raw Hide Fate wells was gas rights           the gauge showed approximately 124 barrels of oil. On May
gas. Because Raw Hide had the burden of proof on special           3, 1986, a Maxus representative observed the tank gauge,
issue number three, the appropriate standard for our review of     indicating approximately 395 barrels of oil. Kirkpatrick could
point of error number four is whether the jury's finding was       not explain these discrepancies. Kirkpatrick concluded that
inappropriate as a matter of law, or whether such finding is       the court-ordered tests were fair, that no casinghead gas had
against the great weight and preponderance of the evidence.        been produced from the wells, and that Raw Hide had not
Furthermore, we conclude that point of error number five,          cased off, saved or protected Maxus' gas.
pertaining to the trial court's award of all the funds in the
registry of the court to Maxus, presents a matter of law point;    Richard Strickland studied the Coffee H–1 well and nine
and, accordingly, it will be reviewed in that context. Finally,    other wells on the eight sections surrounding Section 237.
we conclude that Raw Hide did not have the burden of proof         The first of these ten wells was completed in July 1936 and
with regard to special issue number seven, pertaining to the       the last was completed in May 1953. From the completion
existence of oil in any of the listed formations under the Fate    date of each well to January 1984, the ten wells collectively
lease. Accordingly, point of error number nine presents a no       produced approximately 270.2 BCF of gas and no oil. Each
evidence or insufficient evidence point.                           well was completed in or approximate to the Brown Dolomite
                                                                   formation. The ten wells were completed with open hole
The record shows that several Maxus representatives were           casing below the Brown Dolomite. Strickland testified that
sent to watch well production tests on the Fate lease and          there was a very small potential, if any, for oil production in
fill out forms describing their observations. Data from the        the Brown Dolomite. He reported that Section 237 was more
production tests was reported on a Railroad Commission             likely to be productive of gas because the Brown Dolomite
form W–2. These tests were conducted in 1985 and Maxus             formation under that section has high structural elevation. He
monitored the results on six wells. Maxus' representatives         later reported that the Brown Dolomite, Moore County Lime,
reported that during the 24–hour test period, oil production       and Arkosic Dolomite formations do not appear productive of
varied from a low of 7 barrels to a high of 38 barrels per well.   oil under Section 237. Assuming that the Arkosic Dolomite



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           12
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


was part of the Moore County Lime, Strickland reported that          depths. Based upon a comparison of well logs from the
his opinions would be the same.                                      Christie No. 1, a nearby well, to the Raw Hide Fate No. 10,
                                                                     Johnston further stated that the only way to know for certain
Strickland compared the W–2 results to the court-ordered             was to complete, treat, and attempt to produce the well.
test results. He noted that in both tests gas production was         Maxus' witness, Kent Kirkpatrick, testified that oil production
comparable, and water production was significant. However,           on the Christie lease was insignificant and similar to that from
he stated that very little oil entered the well bores during the     the Raw Hide Fate lease. Raw Hide also produced evidence
court-ordered test, and that such amount of oil could not be         that oil existed under their lease, that the fracking of the Raw
considered oil production by any standards. Strickland also          Hide Fate Nos. 5, 6, 7, and 8 could not have affected the
compared the per square inch pressures in the casing during          Coffee H–1 well, and that the court-ordered tests were not
the W–2 tests and the court-ordered tests, and concluded             fair.
that (1) the pressure differences were insignificant, (2) some
oil was produced at lower pounds per square inch gauge                [13]    After reviewing the evidence pursuant to the
pressures during the court-ordered tests, (3) the gas produced       appropriate standards, we are convinced that the jury's answer
from the Raw Hide Fate wells was not casinghead gas, and (4)         to special issue number three, that 100 percent of the gas
the Raw Hide Fate wells could not produce casinghead gas.            produced from the Raw Hide Fate wells during the court-
                                                                     ordered test was gas rights gas, is not against the great
Dan Hipkins, vice-president of Raw Hide Oil, testified that          weight and preponderance of the evidence. We are equally
oil was transported to the well-site for use in drilling the         convinced that the contrary position, i.e., that some of the gas
wells. He estimated that about 50 barrels of oil were used           produced was casinghead gas, was not established as a matter
in each of the wells, and that it was common practice to             of law. Accordingly, points of error numbers four and five are
inject oil when drilling through the Brown Dolomite. Hipkins         overruled.
stated that the injected oil is usually circulated out of the well
through the mud pump with other cuttings. Hipkins reported            [14] After having reviewed the evidence, we are convinced
that he conducted the preflow stabilization the day before           that the jury's answer to special issue number seven, that no
the W–2 test, when Maxus' representatives were not present.          oil exists in certain formations underlying the Raw Hide Fate
He stated that he generally runs the preflow for about 20 to         lease, given the definition of oil which we have approved, has
24 hours prior to the W–2 test potential. However, he later          legally sufficient evidentiary support. Furthermore, we find
conceded that he had previously reported that he started the         that the evidence supporting the jury's answer to special issue
preflow, watched the gas pressure gauge until it stabilized,         number seven is not so weak, or the answer so contrary to
stopped the test when he saw oil flow into the pit, and then         the overwhelming weight of the evidence, as to be clearly
started the W–2 test. He admitted that oil production was so         wrong and manifestly unjust. From the record, there is expert
erratic that it was impossible to keep production records.           testimony that (1) the Raw Hide Fate wells are not productive
                                                                     of oil, (2) the oil produced during the court-ordered test was
 *278 Hipkins testified that the Railroad Commission                 not oil production by any standards, (3) the gas produced
conducted tests on the Coffee H–1 well and concluded that            from the Raw Hide Fate wells was not casinghead gas, (4)
it was not producing oil. Disagreeing with the way the tests         the Coffee H–1 well and the nine nearby gas wells never
were performed, Hipkins stated that he obtained a sample             produced any oil, and (5) oil production was unlikely under
he believed was oil and sent it to a lab, where an analyst           the Fate lease due to the high structural elevation of the Brown
concluded that the sample was oil. However, the Railroad             Dolomite formation in that location. Accordingly, point of
Commission, citing the lab's test results, concluded that the        error number nine is overruled.
sample was condensed water.
                                                                      [15] In their tenth point of error, Raw Hide contends that the
It is uncontroverted that the Raw Hide Fate wells produced           trial court erroneously excluded defense exhibit number 72,
some oil; however, the parties disagree whether such oil was         arguing that it was relevant to the issues at trial. We find that
native oil or oil previously injected into the wells during          the exclusion of exhibit number 72 was harmless.
drilling. Raw Hide's expert, geologist Gray Johnston, reported
that there were many oil wells in Moore County and some              Geologist John B. Rogers testified that he had been the
were producing from the Brown Dolomite formation at lower            District Director for the Railroad Commission in Pampa from



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              13
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


February 1, 1970, until his retirement in 1985. At a hearing         We agree that the exclusion of exhibit number 72 was not such
outside the presence of the jury regarding the admission             a denial of Raw Hide's rights as was reasonably calculated
of exhibit number 72, Rogers testified that the exhibit was          to cause and did probably cause the rendition of an improper
an excerpt from an annual report compiled by the Oil and             judgment. Tex.R.App.P. 81(b)(1). In discharging its burden
Gas Division of the Railroad Commission. Rogers said that            of showing that the exclusion of evidence was prejudicial,
compilation of the report commenced in 1952, and that the            the party attacking the ruling need not prove that “but for”
report had been submitted to the Governor's office on an             the excluded evidence, a different judgment would have
annual basis. Exhibit number 72 was included in the latest           necessarily resulted. Said party is only required to show
report, which was for 1985. Exhibit number 72 showed the             that the excluded evidence probably resulted in the rendition
Railroad Commission's classification of different types of oil       of an improper judgment. King v. Skelly, 452 S.W.2d 691
and gas fields. It illustrated (1) non-associated gas fields,        (Tex.1970); Howard v. Faberge, Inc., 679 S.W.2d 644,
which are fields with gas, (2) associated gas fields, which          648 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd n.r.e.).
have gas above with oil below, and (3) dissolved gas fields,         Reversible error is not generally shown in connection with
which are totally comprised of oil.                                  rulings on the admissibility of evidence unless the whole case
                                                                     turns on the particular evidence excluded. Atlantic Mut. Ins.
 *279 Rogers identified the 1938 Coffee lease and the Fate           Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.—San
lease as being located in an associated gas field as defined         Antonio 1983, writ ref'd n.r.e.); Bridges v. City of Richardson,
by the Railroad Commission. Rogers explained that the only           349 S.W.2d 644, 649 (Tex.Civ.App.—Dallas 1961, writ ref'd
way to change a gas well to an oil and casinghead gas well           n.r.e.).
was for the production ratio to decrease to a point where the
gas to oil ratio is less than 100,000 cubic feet of gas per barrel    [16] Here, the jury found that oil cannot be produced
of oil. To change an oil well to a gas well, the gas to oil ratio    from the pertinent formations underlying the Raw Hide Fate
must exceed 100,000 cubic feet of gas to one barrel. Defense         lease, and we have determined that the record supports
exhibit number 72 is not included in the record before us.           that finding. Since oil is not productive from the pertinent
                                                                     formations under the Fate lease, the location of perforations
In their brief, Raw Hide argues, without citation to authority,      which produced vapor from these wells was not critical
that there can be oil on top of gas and that the oil and gas         to the outcome of the case because gas produced from
formations are not necessarily straight formations. Raw Hide         those formations could not be casinghead gas by definition.
reasons that when oil is on top of gas, the oil and casinghead       Furthermore, the mere existence of oil within a formation
gas owner can perforate the well above the perforations in           does not mean that all wells producing from that formation
a nearby gas rights well. Raw Hide argues that the exhibit           are oil wells. Jinkins v. Bryan, 763 S.W.2d 539 (Tex.App.
would show that its right to produce casinghead gas is               —Amarillo, 1988, n.w.h.) (not yet reported). Moreover, the
not limited to perforations below those in the Coffee H–1.           excluded exhibit apparently showed that there were both oil
Additionally, Raw Hide claims that when exhibit number               wells and gas wells in the area surrounding the instant tract.
72 is combined with the testimony of S.G. Johnston, it               Evidence of that fact had already been admitted through
demonstrates that Raw Hide was producing from a formation            Johnston's testimony. Where excluded evidence is admitted
productive of oil, and that the gas was therefore casinghead         elsewhere, error is not generally shown. Wilson v. John
gas.                                                                 Frantz Co., 723 S.W.2d 189, 194 (Tex.App.—Houston [1st
                                                                     Dist.] 1986, writ ref'd n.r.e.). Consequently, the excluded
Maxus contends that the exclusion of exhibit number 72               evidence had little or no bearing on the issue of whether oil
did not cause the rendition of an improper judgment. It              and casinghead gas was being produced from the pertinent
argues that the 1938 Coffee lease, and not exhibit number 72,        formations under the Fate lease. The instant case did not turn
controls where Raw Hide could perforate the wells. Maxus             on the excluded evidence and its exclusion did not result in
also argues that since the jury concluded that no oil exists         the rendition of an improper judgment. Point of error number
in the pertinent formations under the Fate lease, the location       eleven is overruled.
of the perforations in those formations for the production of
gas is irrelevant because casinghead gas cannot be produced           *280 Having separately disposed of the points of error raised
where no oil exists.                                                 by Raw Hide, we conclude that no reversible error has been




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              14
Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (1988)


                                                                          Prod. Co. v. Harlow Corp., 743 S.W.2d 243 (Tex.App.
presented. Accordingly, the judgment of the trial court is
                                                                          —Amarillo 1987, writ requested) ], a similar instruction
affirmed.
                                                                          survived attack. Id. at 257. In effect we have already
                                                                          concluded that a similar instruction was material.” Raw Hide
Before REYNOLDS, C.J., and DODSON, J. *                                   notes that at page 257 of the Dorchester opinion there is a
                                                                          discussion of the definition of casinghead gas that was given
                                                                          in that case, and submits that the Dorchester opinion does not
            ON MOTION FOR REHEARING                                       support the definition of oil, a different substance, that was
                                                                          used in this case.
REYNOLDS, Chief Justice.

Raw Hide Oil & Gas, Inc. and Raw Hide Production                          It is apparent from Raw Hide's perception of our reference
Company, Inc. have filed a motion for rehearing, requesting               that we could have employed more specific language of
a reconsideration of determinations made in our original                  communication. Nevertheless, the language we used was
opinion. Our reconsideration of the contentions expressed                 not an intended reference to the Dorchester definition of
in the motion does not persuade us to change our original                 casinghead gas; rather, it was a reference to that earlier
judgment of affirmance. Neither are we persuaded to write                 part of the page where it is recorded that the Dorchester
further upon the reconsideration other than to address Raw                jury, implicitly deliberating with a similar definition of
Hide's perception of our erroneous reliance upon authority                oil, determined that the formation from which the wells
cited in our opinion.                                                     were producing “is not productive of native oil under
                                                                          normal operating conditions.” But aside from that, and more
As previously noted, Raw Hide's second-point contention is                pertinent, we immediately followed the referential language
that the trial judge gave an improper definition of the term              with an explanation why the challenged definition was
“oil” in connection with special issue number seven. The                  relevant to the issue, a sufficient basis for overruling Raw
definition, Raw Hide contends, is too restrictive because it              Hide's second-point contention.
required the jury to determine that oil was “producible under
normal operating conditions.”                                             The motion for rehearing is overruled.


Enroute to overruling the contention, we said in the 25th
paragraph of our opinion, “In Dorchester [Dorchester Gas


Footnotes
1      Raw Hide disputes the existence of the Arkosic Dolomite formation under Section 237; however, resolution of this issue is not
       germane to this Court's decision.
2      Tex.Civ.Prac. & Rem.Code Ann. § 37.001 et seq. (Vernon 1986).
3      The breadth of the permanent injunction has not been challenged by point of error and we are, therefore, not called upon to express
       an opinion concerning it.
4      We express no opinion as to whether Raw Hide timely filed the bill of exception. In this regard, the record shows that (1) the Offer
       of Proof and Bill of Exceptions was given to the trial judge on September 22, 1987, (2) the verdict was returned on September 23,
       1987, (3) the Amended Final Judgment was signed on October 21, 1987, and (4) the Offer of Proof and Bill of Exceptions was file-
       marked February 3, 1988. See Tex.R.App.P. 52(c)(11).
5      We note that, although we have determined that special issue number three was rendered inconsequential by the jury's answer to
       special issue number seven, we believe a discussion of the legal and factual sufficiency point of error is appropriate in view of the
       interrelationship between points of error numbers four, five, and nine.
*      Justice Pirtle, who authored the opinion for the Court on original submission, did not participate in the decision on motion for rehearing
       because his term of office expired on 31 December 1988.


End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                         15
Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607 (1979)
25 UCC Rep.Serv. 779


                                                                       3 Cases that cite this headnote
                     576 S.W.2d 607
                 Supreme Court of Texas.
                                                                [3]    Negligence
                 Nora RAY, Petitioner,                                     Negligence as Question of Fact or Law
                         v.                                            Generally
              FARMERS' STATE BANK OF                                   Generally, determination of negligence is
               HART, Texas, Respondent.                                province of trier of fact.

              No. B-7649.      |   Jan. 17, 1979.                      4 Cases that cite this headnote

Drawer sued drawee bank to recover sum allegedly
                                                                [4]    Appeal and Error
wrongfully paid out of checking account upon altered
                                                                          Some or Any Evidence
check bearing drawer's signature. The District Court, Castro
County, John P. Boyd, J., entered judgment for drawer and              Judgment of trial court will not be set aside if
bank appealed. The Court of Civil Appeals, Robinson, C. J.,            there is any evidence of a probative nature to
565 S.W.2d 103, reversed and rendered judgment for bank,               support it and a Court of Civil Appeals cannot
and drawer appealed. The Supreme Court, Pope, J., held that            substitute its findings of fact for those of trial
evidence presented fact question as to whether drawer was              court if there is any evidence in the record to
negligent under circumstances so as to preclude her from               sustain the trial court's findings.
asserting alteration against drawee bank.
                                                                       70 Cases that cite this headnote
Court of Civil Appeals reversed.
                                                                [5]    Banks and Banking
Denton, J., dissented.                                                     Trial and Judgment
                                                                       In action brought by check drawer against
                                                                       drawee bank claiming that drawee bank was
 West Headnotes (5)                                                    liable for loss occasioned by check that a
                                                                       third party altered, evidence presented fact
                                                                       question as to whether drawer was negligent
 [1]    Trial                                                          under circumstances so as to preclude her from
             Finding of Fact or Conclusion of Law                      asserting the alteration against bank. V.T.C.A.,
        Although finding appears among conclusions of                  Bus. & C. §§ 3.406, 3.407, 3.407(a)(3).
        law, designation is not controlling on appeal and
                                                                       1 Cases that cite this headnote
        appellate court may treat it as a finding of fact.

        62 Cases that cite this headnote

                                                               Attorneys and Law Firms
 [2]    Banks and Banking
             Negligence of Depositor, and Ratification         *607 Moran & Miller, Dimmitt, Whittenburg Law Firm,
        of Forgery or Fraudulent Alteration                    Amarillo, Cary Schachter, Amarillo, for petitioner.
        Drawer of check would be precluded from
        asserting third party's alteration of check against    Gibson, Ochsner, Adkins, Harlan & Hankins, A. B. Hankins
        drawee bank if her negligence substantially            and Danny M. Needham, Amarillo, for respondent.
        contributed to the alteration of the check.
                                                               Opinion
        V.T.C.A., Bus. & C. §§ 3.406, 3.407, 3.407(a)
        (3).                                                   POPE, Justice.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          1
Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607 (1979)
25 UCC Rep.Serv. 779

                                                                    That made the amount appear as $1,851.50. There is some
The question presented is whether Mrs. Nora Ray, the drawer,        evidence that he also left space on the next line where he wrote
or Farmers' State Bank of Hart, Texas, the drawee, is liable        the words “one and 50/100”. He later placed in front of those
for the loss occasioned by a check that a third party altered.      words, “Eighteen Hundred & Fifty.”
In a case tried before the court without a jury, Mrs. Ray
recovered judgment for $1,850.00, which was the amount              When Freeman presented the check at the bank, the teller
of the alteration. The court of civil appeals reversed the          required him to produce identification which he did by
judgment and rendered judgment that Mrs. Ray take nothing.          showing his driver's license and another identification card
565 S.W.2d 103. We reverse the judgment of the court of civil       that showed his picture. Freeman had endorsed the check
appeals and affirm that of the trial court.                         and beneath his signature he had stamped the words, “Allied
                                                                    Construction and Commercial-Residential.”
The controlling issue in the case is whether Mrs. Ray was            [1] The trial court made a number of findings of fact and also
negligent as a matter of law. On May 7, 1975, Mrs. Ray, an          filed conclusions of law. The findings relevant to this appeal
eighty-year-old lady, was awakened from a nap by a man who          are:
was shaking the screen to her front door. He gave his name          1a. The Defendant Bank paid the check in question in good
as Robert Freeman, said he worked for the utility company,          faith and in accordance with the reasonable commercial
and that he needed to check the electrical system of her home       standards of the Bank's business.
because the power was off along the block. Mrs. Ray testified
that when she unlatched the screen to look down the street for      2a. The Defendant Bank paid the check in due course of its
a utility vehicle, Freeman pushed his way inside the house. He      banking business.
went around the house placing a device *608 in the electrical
outlets and then went outside to check in the garage. While
he was outside, as she later discovered, he cut the telephone       The relevant “conclusion of law” 1 was that the conditions
wire to her house. Upon returning, he told Mrs. Ray that            and circumstances under which Nora Ray signed and
he was not through, but that he was awaiting the arrival of         delivered the check did not amount to negligence
someone else from the utility company. He said that he was          substantially contributing to the material alteration of the
going to get a hamburger and would return after lunch, but          instrument as required by Section 3.406 of the Uniform
that she should give him $1.50 for the service charge. Mrs.         Commercial Code to constitute a defense.
Ray testified that she could not see what he had done to earn
$1.50 but was willing to give him the money to get him out of
the house. She reached for her purse, but Freeman picked up         We must begin with article 4.401 of the Code 2 since it sets
her checkbook that was lying on the table telling her that his      forth the general rule when a bank may charge an item against
company required payment by check. He proceeded to fill it          a customer's account. It states that a bank may charge against
in, then shoved it over to her to be signed. She noted to herself   a customer's account any item properly payable from that
that the check was for $1.50 and was in ink so it couldn't be       account. Further, the bank may charge the account if it pays
changed. She signed the check and Freeman left.                     in good faith, even though the item has been altered, but only
                                                                    according *609 to the original tenor of the altered item. We
After waiting a considerable period of time, Mrs. Ray
                                                                    are here dealing with an alteration as explained by article
concluded that Freeman was not going to return. She decided
to phone the bank to stop payment on the check because he           3.407(a)(3) 3 since there were additions to Mrs. Ray's check.
had not earned the money. She then discovered the phone was         If we look only to these two statutes, the bank had the right
dead. Mrs. Ray walked down the street to use a neighbor's           to charge Mrs. Ray's account according to the original tenor
phone but could find nobody at home. About two hours later,         of the item $1.50 because, according to the findings, the bank
when she finally talked to a lady at the bank, she learned that     acted in good faith.
Freeman had cashed the check and that it was for $1,851.50           [2] We still need, however, to fit article 3.406 4 into the
instead of $1.50.                                                   scheme of the statutes. That article cuts off rights that a person
                                                                    might have against a holder in due course or against a drawee
When Freeman filled out the check at Mrs. Ray's home, he            or other payor who pays an instrument in good faith and
wrote the figures “1.50” far to the right of the dollar mark,       in accordance with reasonable commercial standards of the
leaving space in which he later added the figures “185”.            drawee's or payor's business. This means that Mrs. Ray would



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607 (1979)
25 UCC Rep.Serv. 779

                                                                       (Tex.1971). In determining whether there was any evidence
be precluded from asserting the alteration against Farmers'
                                                                       of probative force to sustain the trial judge's finding, the court
State Bank if her negligence substantially contributed to the
                                                                       of civil appeals was required to consider only that evidence
alteration of the check.
                                                                       favorable to the finding and the judgment rendered thereon
                                                                       and to disregard all evidence to the contrary. The judgment
In determining whether the bank may charge Mrs. Ray's                  of a trial court will not be set aside if there is any evidence of
account, there are steps that must be taken sequentially. First,       a probative nature to support it, and a court of civil appeals
the instrument must have been paid in good faith and in                cannot substitute its findings of fact for those of the trial court
accordance with the reasonable commercial standards of the             if there is any evidence in the record to sustain the trial court's
drawee's business. Second, the person seeking to assert the            findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972
alteration must be found negligent. Third, the negligence              (Tex.1951).
must have substantially contributed to the alteration of the
instrument.                                                             [5] When viewed in the light most favorable to the trial
                                                                       court's judgment, we *610 think there is at least some
It can be concluded that the bank did pay the check in                 evidence of probative force to support the trial court's
good faith and in accordance with reasonable commercial                finding. At most, the evidence is conflicting. Under such
standards. There was a finding of fact to this effect by the trial     circumstances, the trial court's finding is binding on the court
court, and there was no dispute concerning this issue before           of civil appeals. It is our opinion that the nature of the
the court of civil appeals. The trial court and the court of civil     evidence introduced at trial was such that reasonable minds
appeals, however, differ on the question of negligence. The            might differ as to whether Nora Ray was negligent under
trial court found that Mrs. Ray was not negligent under the            the circumstances. The court of civil appeals, therefore, erred
circumstances, but the court of civil appeals found negligence         in reversing the judgment of the trial court and rendering
as a matter of law.                                                    judgment that Nora Ray was negligent as a matter of law.
                                                                       Because of this determination, we do not reach the causation
Official Comment 3 to this section of the Uniform
                                                                       issue.
Commercial Code includes this explanation of how
negligence is to be determined.
            3. No attempt is made to define                            The judgment of the court of civil appeals is reversed and that
            negligence which will contribute to an                     of the trial court is affirmed.
            alteration. The question is left to the court
            or the jury upon the circumstances of the
                                                                       Dissenting opinion by DENTON, J.
            particular cases. Negligence usually has
            been found where spaces are left in the                    CAMPBELL and SPEARS, JJ., not sitting.
            body of the instrument in which words or
            figures may be inserted.                                   DENTON, Justice, dissenting.

                                                                I respectfully dissent. I agree with the Court of Civil Appeals.
 [3] [4] As a general rule, the determination of negligence
is the province of the trier of fact. Exchange Bank & Trust Co. Parallel Citations
v. Kidwell Construction Co., 463 S.W.2d 465 (Tex.Civ.App.
Tyler), writ ref'd n. r. e. per curiam, 472 S.W.2d 117          25 UCC Rep.Serv. 779


Footnotes
1       Although this finding appears among the conclusions of law, the designation is not controlling and we may treat it as a finding of
        fact. McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016 (1950).
2       s 4.401. When Bank May Charge Customer's Account
        (a) As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account
        even though the charge creates an overdraft.
        (b) A bank which in good faith makes payment to a holder may charge the indicated account of its customer according to
        (1) the original tenor of his altered item; or



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607 (1979)
25 UCC Rep.Serv. 779

      (2) the tenor of his completed item, even though the bank knows the item has been completed unless the bank has notice that the
      completion was improper.
      Tex.Bus. & Com.Code Ann. s 4.401 (Tex.UCC).
3     s 3.407. Alteration
      (a) Any alteration of an instrument is material which changes the contract of any party thereto in any respect, including any such
      change in
      (1) the number or relations of the parties; or
      (2) an incomplete instrument, by completing it otherwise than as authorized; or
      (3) the writing as signed, by adding to it or by removing any part of it.
      Tex.Bus. & Com.Code Ann. s 3.407 (Tex.UCC).
4     s 3.406. Negligence Contributing to Alteration or Unauthorized Signature
      Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an
      unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee
      or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's
      or payor's business.
      Tex.Bus. & Com.Code Ann. s 3.406 (Tex.UCC).


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                          4
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191



                     348 S.W.3d 221                              Reversed and remanded.
                 Supreme Court of Texas.

     SERVICE CORPORATION INTERNATIONAL
      and SCI Texas Funeral Services, Inc., d/b/                  West Headnotes (28)
       a Mont Meta Memorial Park, Petitioners,
                          v.
                                                                  [1]   Appeal and Error
    Juanita G. GUERRA, Julie Ann Ramirez, Gracie                           Sufficiency of Evidence in Support
    Little and Mary Esther Martinez, Respondents.
                                                                        Appeal and Error
             No. 09–0941. | Argued Dec.                                    Total failure of proof
         19, 2010. | Decided June 17, 2011.                             A no-evidence challenge will be sustained when:
                                                                        (a) there is a complete absence of evidence of
Synopsis                                                                a vital fact, (b) the court is barred by rules of
Background: Decedent's daughters and widow brought                      law or of evidence from giving weight to the
action against operator of cemetery and its parent corporation          only evidence offered to prove a vital fact, (c)
for fraud, intentional infliction of emotional distress,                the evidence offered to prove a vital fact is no
negligence, and trespass after decedent's body was moved                more than a mere scintilla, or (d) the evidence
without their permission. Following jury trial, the 404th               conclusively establishes the opposite of the vital
District Court, Cameron County, Abel C. Limas, J., entered              fact; evidence is more than a scintilla if it rises
judgment in favor of widow and daughters for $2.2 million for           to a level that would enable reasonable and fair-
past mental anguish and $4 million for exemplary damages.               minded people to differ in their conclusions.
Operator and parent appealed. The Court of Appeals, Nelda
V. Rodriguez, J., 348 S.W.3d 239, affirmed as modified.                 28 Cases that cite this headnote
Operator and parent petitioned for review which was granted.
                                                                  [2]   Evidence
                                                                            Sufficiency to support verdict or finding
Holdings: The Supreme Court, Johnson, J., held that:                    If evidence does no more than create a mere
                                                                        surmise or suspicion and is so slight as to
[1] deemed finding in support of judgment was made;                     necessarily make any inference a guess, then it is
                                                                        no evidence.
[2] testimony of cemetery's former general manager was
no evidence that former general manager was employed by                 13 Cases that cite this headnote
parent;
                                                                  [3]   Appeal and Error
[3] evidence was legally insufficient to support findings that             Verdict
any of decedent's daughters suffered compensable mental
                                                                        When considering no evidence challenge,
anguish;
                                                                        Supreme Court presumes that jurors made all
                                                                        inferences in favor of the verdict, but only if
[4] operator and parent did not open the door to evidence of
                                                                        reasonable minds could do so; jurors may not
other lawsuits;
                                                                        simply speculate that a particular inference arises
                                                                        from the evidence.
[5] evidence of other lawsuits against parent was irrelevant;
and                                                                     6 Cases that cite this headnote

[6] erroneous admission of evidence of other lawsuits was
harmful and required remand.                                      [4]   Corporations and Business Organizations
                                                                            Wrongful Acts or Omissions



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

        Labor and Employment
            Scope of Employment                              [8]    Trial
                                                                         Findings by court on issues not submitted
        Corporations are liable for the negligence of
        corporate employees acting within the scope of              Just as with any other finding, there must be
        their employment.                                           evidence to support a deemed finding.

        1 Cases that cite this headnote                             4 Cases that cite this headnote


 [5]    Corporations and Business Organizations              [9]    Corporations and Business Organizations
            Wrongful Acts or Omissions                                  Weight and sufficiency

        Labor and Employment                                        Testimony of cemetery's former general manager
            Relation of Parties                                     that she was employed by “SCI Texas,” which
                                                                    owned and operated cemetery and employed
        Except for a few circumstances, a corporation
                                                                    the people who worked there was no evidence
        is not vicariously liable for the negligence of
                                                                    that former general manager or any of the other
        someone who is not its employee.
                                                                    cemetery employees were employed by owner
        Cases that cite this headnote                               and operator's parent company that also had
                                                                    “SCI” in its name.

 [6]    Trial                                                       Cases that cite this headnote
             Findings by court on issues not submitted
        Deemed finding in support of judgment against        [10]   Corporations and Business Organizations
        operator of cemetery and its parent corporation                 Weight and sufficiency
        was made in action by widow and daughters of
                                                                    Testimony that “SCI” employed cemetery
        decedent whose body was moved without their
                                                                    workers was no evidence they were employed by
        permission for intentional infliction of emotional
                                                                    parent corporation of cemetery operator, where
        distress, negligence, and trespass, where the jury
                                                                    statements that the workers were employed by
        charge did not have a separate question asking
                                                                    “SCI” only allowed for speculation that they
        if any of the actors in incident were employees
                                                                    were employed by the parent because both the
        of parent, there was no objection to the charge
                                                                    parent and the operator had the letters “SCI” as
        on the basis that it omitted the element of
                                                                    part of their names.
        employment, and there was no finding regarding
        whether actors were employees of the parent.                1 Cases that cite this headnote
        Vernon's Ann.Texas Rules Civ.Proc., Rule 279.

        1 Cases that cite this headnote                      [11]   Evidence
                                                                        Sufficiency to support verdict or finding

 [7]    Trial                                                       Findings based on evidence that allow for no
             Findings by court on issues not submitted              more than speculation, a guess, are based on
                                                                    legally insufficient evidence.
        When an element of a claim is omitted from
        the jury charge without objection and no written            2 Cases that cite this headnote
        findings are made by the trial court on that
        element, then the omitted element is deemed to
        have been found by the court in such manner as to    [12]   Corporations and Business Organizations
        support the judgment. Vernon's Ann.Texas Rules                  Weight and sufficiency
        Civ.Proc., Rule 279.                                        Testimony from a former family service
                                                                    counselor supervisor at a cemetery that
        2 Cases that cite this headnote                             he was employed by “Service Corporation
                                                                    International” was no evidence that parent


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                     2
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

        corporation, which was called “Service                       routine or a high degree of mental pain and
        Corporation International,” of operator of                   distress.
        cemetery at which decedent's body was moved
        without the permission of his widow and                      20 Cases that cite this headnote
        daughters employed the workers who were
        involved in the movement of the body. Vernon's        [16]   Damages
        Ann.Texas Rules Civ.Proc., Rule 279.                            Nature of Injury or Threat in General

        Cases that cite this headnote                                Even when an occurrence is of the type for
                                                                     which mental anguish damages are recoverable,
                                                                     evidence of the nature, duration, and severity of
 [13]   Corporations and Business Organizations                      the mental anguish is required.
            Parent and subsidiary corporations
        Presence of the “SCI” logo on personnel                      19 Cases that cite this headnote
        paperwork of former general manager of
        cemetery was legally insufficient to support          [17]   Dead Bodies
        a finding that former general manager was                        Civil liabilities
        employed by parent corporation of cemetery
                                                                     Evidence was legally insufficient to support
        operator that also had “SCI” in its name;
                                                                     findings that any of decedent's daughters
        inferences were equal, and the presence of the
                                                                     suffered compensable mental anguish due to
        logo on the documents was as consistent with
                                                                     the unauthorized movement of decedent's body
        employment by operator as with parent.
                                                                     by cemetery, although daughters experienced
        Cases that cite this headnote                                very strong emotional reactions that would
                                                                     be expected from the unauthorized moving of
                                                                     a loved one's body; none of the witnesses,
 [14]   Corporations and Business Organizations                      including the daughters themselves, identified a
            Parent and subsidiary corporations                       specific high degree of mental pain and distress
        Heading on employee requisition form that                    experienced by particular family members, or a
        stated “Service Corporation International” which             substantial disruption of any particular family
        was the name of the parent corporation of                    member's daily routine.
        cemetery operator was legally insufficient to
        support a finding that parent employed any                   3 Cases that cite this headnote
        cemetery workers, where form also contained
        a blank space for location or department name         [18]   Dead Bodies
        which contained the name of cemetery and a                       Civil liabilities
        funeral home, and president of operator testified
                                                                     There was some evidence to support the jury's
        that form was supplied by parent, but operator
                                                                     finding that decedent's widow suffered the
        was making a requisition request for itself, rather
                                                                     degree of mental pain and distress that would
        than for someone to be employed by the parent.
                                                                     support damages for mental anguish due to the
        Cases that cite this headnote                                unauthorized movement of decedent's body by
                                                                     cemetery, even if there was no evidence that
                                                                     her routine was disrupted; lack of evidence
 [15]   Damages                                                      of disruption in routine did not negate the
           Nature of Injury or Threat in General                     evidence that widow suffered compensable
        Generally, an award of mental anguish damages                mental anguish, and she testified that she
        must be supported by direct evidence that the                suffered burning in her stomach due to the stress
        nature, duration, and severity of mental anguish             and sought medical treatment for the symptoms,
        was sufficient to cause, and caused, either a                continued to have headaches and take medication
        substantial disruption in the plaintiff's daily              for anxiety and depression, and that she had been



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       3
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

        worrying and having fear and anxiety about what                 Rulings on admissibility of evidence in
        might be done to her at the cemetery for nearly             general
        six years since the decedent's casket was moved.            Supreme Court reviews a trial court's decision to
                                                                    admit evidence for an abuse of discretion.
        10 Cases that cite this headnote
                                                                    17 Cases that cite this headnote
 [19]   Appeal and Error
           Necessity of timely objection                     [23]   Evidence
        Appeal and Error                                                Showing Intent or Malice or Motive
           Objections to evidence in general                        Evidence of other wrongs or acts is admissible
        Appeal and Error                                            to show a party's intent, if material, provided the
           Necessity of Ruling on Objection or Motion               prior acts are so connected with the transaction
        Error is preserved with regard to a ruling that             at issue that they may all be parts of a system,
        admits evidence if the opponent of the evidence             scheme or plan; this can be shown through
        makes a timely, specific objection and obtains              evidence of similar acts temporally relevant and
        a ruling. Rules App.Proc., Rule 33.1; Rules of              of the same substantive basis. Rules of Evid.,
        Evid., Rule 103.                                            Rule 404.

        2 Cases that cite this headnote                             3 Cases that cite this headnote


 [20]   Appeal and Error                                     [24]   Evidence
           Arguments and conduct of counsel                             Similar wrongful acts
        The failure to object to an attorney's statements           Evidence of other lawsuits, verdicts, and
        during voir dire of the jury panel, without                 judgments against parent corporation of
        more, does not waive a later objection to                   cemetery operator was irrelevant in action by
        evidence offered during trial, because statements           decedent's widow and daughters against operator
        by lawyers during the jury selection process are            and parent for intentional infliction of emotional
        not evidence.                                               distress, negligence, and trespass relating to
                                                                    the unauthorized movement of decedent's body,
        Cases that cite this headnote                               where some evidence concerned suits involving
                                                                    allegations that plots that were sold twice, but
                                                                    decedent's family presented no evidence that
 [21]   Trial
                                                                    those events were so connected to the events
             Evidence to rebut statements
                                                                    in the instant case that they were all part of
        Operator of cemetery and its parent company
                                                                    a system, scheme, or plan, and some evidence
        did not open the door to evidence of other
                                                                    concerned suit involving a body being moved
        lawsuits by alluding to other lawsuits in opening
                                                                    without permission, but the events in that case
        statements in action by decedent's widow and
                                                                    and the instant case occurred more than a year
        daughters for intentional infliction of emotional
                                                                    apart at different cemeteries and there was no
        distress, negligence, and trespass relating to
                                                                    evidence that any of the same employees were
        the unauthorized movement of decedent's body,
                                                                    involved or that they occurred under similar
        where attorney for decedent's family was the first
                                                                    circumstances. Rules of Evid., Rule 404.
        to allude to other lawsuits in opening statements.
                                                                    Cases that cite this headnote
        Cases that cite this headnote

                                                             [25]   Appeal and Error
 [22]   Appeal and Error
                                                                       Evidence in General




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        4
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

        In determining whether error in admitting                       cemetery operator and its parent for intentional
        evidence was harmful, Supreme Court evaluates                   infliction of emotional distress, negligence, and
        the entire case from voir dire to closing                       trespass relating to the unauthorized movement
        argument, considering the evidence, strengths,                  of decedent's body.
        and weaknesses of the case, and the
        verdict; Court also considers whether counsel                   Cases that cite this headnote
        emphasized the erroneous evidence and whether
        the admission of the evidence was calculated or
        inadvertent.
                                                                Attorneys and Law Firms
        7 Cases that cite this headnote
                                                                 *225 Mike A. Hatchell, Charles R. Watson Jr., Molly H.
                                                                Hatchell, Locke Lord Bissell & Liddell LLP, Austin, Charles
 [26]   Appeal and Error
                                                                C. Murray, Lisa D. Powell, Adriana Hernandez Cardenas,
           Documentary evidence; photographs
                                                                Atlas & Hall, L.L.P., McAllen, Sarah B. Duncan, Kirsten M.
        Erroneous admission of evidence of other                Castaneda, Locke Lord Bissell & Liddell LLP, Austin, for
        lawsuits, verdicts, and judgments was harmful           Petitioners.
        and required the case to be remanded for
        a new trial in action by decedent's widow               Richard G. Roth, Law Offices of Richard G. Roth, South
        and daughters against cemetery operator and             Padre Island, J. Scott McLain, Kristin Ann Gaston, Reed,
        its parent corporation for intentional infliction       McLain & Guerrero, LLP, Mark L. Kincaid, Elizabeth
        of emotional distress, negligence, and trespass         Rose Von Kreisler, Kincaid & Horton, L.L.P., Austin, for
        relating to the unauthorized movement of                Respondent.
        decedent's body, where extensive evidence of
        other suits against parent, allegations in the suits,   Opinion
        and similar evidence was a significant factor
                                                                Justice JOHNSON delivered the opinion of the Court.
        in the jury's damages findings, both actual and
        punitive, and jury awarded daughters $100,000           In this appeal we address whether the evidence was sufficient
        each even though there was no evidence that they        to support jury *226 findings that (1) both the corporation
        suffered compensable mental anguish.                    that owned and operated a cemetery and its parent corporation
                                                                were liable for actions of the cemetery's employees, and (2)
        1 Cases that cite this headnote
                                                                the daughters and widow of a decedent suffered compensable
                                                                mental anguish because the decedent's body was disinterred
 [27]   Damages                                                 and moved to another grave without permission. We also
             Nature and Theory of Damages Additional            address whether evidence of other lawsuits against the
        to Compensation                                         cemetery owner was properly admitted.
        The purposes of punitive damages are to deter
        and punish culpable conduct. V.T.C.A., Civil            Marcos Guerra was buried at Mont Meta Memorial Park
        Practice & Remedies Code § 41.001(5).                   cemetery in a plot that had been sold to someone else.
                                                                His family refused the cemetery's request that it be allowed
        1 Cases that cite this headnote                         to move the body to another burial plot, but the cemetery
                                                                did so anyway. When family members discovered that Mr.
                                                                Guerra's body had been moved, his daughters and widow
 [28]   Dead Bodies
                                                                sued both SCI Texas Funeral Services, Inc. d/b/a Mont Meta
            Civil liabilities
                                                                Memorial Park (SCI Texas), the corporation that owned and
        Evidence that decedent's widow would put                operated the cemetery, and its parent corporation, Service
        any punitive damages she received into a                Corporation International (SCI International). Pursuant to a
        trust to pay for funerals for persons who               jury verdict, the trial court rendered judgment against both
        could not afford them was irrelevant in action          corporations for actual and exemplary damages. The court of
        by widow and decedent's daughters against



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          5
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

appeals modified the judgment as to exemplary damages and         cemetery be allowed to move Mr. Guerra's body to another
otherwise affirmed.                                               plot.

We hold that there was legally insufficient evidence to            *227 Sometime after the meeting with Gaspard, the
support either the liability findings against SCI International   Guerras noticed that grass on Mr. Guerra's grave appeared
or the mental anguish findings in favor of Mr. Guerra's           to have been disturbed. They contacted Mont Meta about
daughters. We further hold that the trial court erred by          the situation. Gaspard responded with a letter in which he
admitting evidence of other lawsuits, verdicts, and judgments     indicated that resodding had taken place in the cemetery
against SCI Texas. We reverse and render in part and remand       and a passageway next to where Mr. Guerra was buried
for a new trial in part.                                          had been converted to a plot to ensure that a place beside
                                                                  Mr. Guerra was available for Mrs. Guerra. When the family
                                                                  received deeds for the plots they had purchased, however,
                                                                  the deeds were for plots 5X and 5XX rather than 5 and
                       I. Background
                                                                  5X. The Guerras suspected that Mr. Guerra's body had been
SCI Texas owns and operates several cemeteries in Texas,          moved and they filed a complaint with the Texas Funeral
including Mont Meta Memorial Park in San Benito. Through          Commission. Six months later, Vicky Trevino, who was
an intermediary corporation not involved in this litigation,      by then general manager at Mont Meta, 1 disclosed to the
SCI Texas is wholly owned by SCI International.                   Guerras that they were correct: Mr. Guerra's body had been
                                                                  moved about 12 to 18 inches laterally into plot 5X.
When Mr. Guerra died unexpectedly on October 5, 2001, his
family decided to have him buried at Mont Meta. Two of his        Mrs. Guerra and her daughters Julie, Gracie, and Mary
three daughters, Julie Ann Ramirez and Gracie Little, went        Ester Martinez (collectively, the Guerras) sued SCI Texas
to Mont Meta and made funeral arrangements. Pursuant to           and SCI International. They asserted causes of action for
the wishes of their mother, Juanita Guerra, Julie and Gracie      fraud, intentional infliction of emotional distress, negligence,
arranged for Mrs. Guerra to purchase burial plots 5 and 5X at     and trespass. A jury found in favor of the Guerras on the
Mont Meta. One of the plots was to be used for Mr. Guerra         three liability theories submitted—intentional infliction of
and one was to eventually be used by Mrs. Guerra.                 emotional distress, negligence, and trespass—and awarded
                                                                  damages of $2 million for past mental anguish to Mrs. Guerra,
SCI Texas requires that before a burial takes place a             $100,000 for past mental anguish to each daughter, and
“blind check” of the arrangements must be performed by an         allocated responsibility 70% to SCI International and 30%
employee other than the employee who made the original            to SCI Texas. The jury also awarded exemplary damages of
arrangements. The blind check is to verify (1) the location       $3 million against SCI International and $1 million against
of the burial plot to be used, (2) that the plot has not been     SCI Texas, allocated 70% to Mrs. Guerra and 10% to each
previously sold, and (3) that no one is already buried in the     daughter.
plot. A Mont Meta employee performed the blind check on
the day of Mr. Guerra's burial as part of her duties at Mont      Both defendants appealed. The court of appeals modified the
Meta. She concluded that the cemetery's records showed plot       judgment and reduced the exemplary damages to $750,000
5, where Mr. Guerra was to be buried, had been previously         for each defendant in accordance with the statutory cap, see
sold to another family. She brought this to the attention of      TEX. CIV. PRAC. & REM.CODE § 41.008(b), but otherwise
her supervisor, who concluded that the burial could proceed       affirmed. 348 S.W.3d 221 at 226. In this Court the SCI
because plot 5 had been quitclaimed to the Guerras.               entities argue that (1) there is no evidence to support the
                                                                  finding of liability as to SCI International; (2) there is no
Another Mont Meta employee reviewed the paperwork after           evidence to support the award of, or the amounts awarded for,
the funeral and discovered that the supervisor had not been       mental anguish damages; (3) the trial court erred by admitting
correct: plot 5 had not been quitclaimed to the Guerras. A        evidence of suits against other SCI Texas cemeteries and
Mont Meta employee contacted the Guerras and told them            of a suit against and settlement entered into in Florida by
that the plot where Mr. Guerra was buried belonged to             SCI International; (4) two of the liability theories in the
someone else. The Guerras met with Mont Meta's general            jury charge were not legally viable and it is impossible to
manager, Jaye Gaspard, and declined his request that the          determine if the jury awarded damages based on an invalid



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             6
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

theory of liability because the charge contained only one            verdict, but only if reasonable minds could do so. Jurors may
damages question conditioned on an affirmative finding to            not simply speculate that a particular inference arises from
any of the three liability questions; (5) the trial court erred by   the evidence. See City of Keller v. Wilson, 168 S.W.3d 802,
admitting testimony that Mrs. Guerra would put any punitive          821 (Tex.2005).
damages in a trust for use by people who cannot afford
funerals; and (6) the jury's award of damages was influenced
by an improper “Golden Rule” argument.
                                                                                        B. Liability Findings

We begin by addressing the challenge to the legal sufficiency         [4]    [5] Corporations are liable for the negligence of
of the evidence as to SCI International.                             corporate employees acting within the scope of their
                                                                     employment. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513,
                                                                     541 (Tex.2002). But except for a few circumstances which the
                    II. SCI International                            Guerras do not claim apply in this case, a corporation is not
                                                                     vicariously liable for the negligence of someone who is not
The charge submitted three liability questions to the jury:          its employee. See id. at 542–43 (noting that a person may be
(1) Did either of the Defendants intentionally inflict severe        held liable for the actions of another if he has a certain degree
emotional distress on the Plaintiffs; (2) Did the negligence         of express or implied control over the actor).
of either Defendant proximately cause the occurrence in
question; and (3) Did either Defendant commit a trespass              [6] SCI International first argues that because the jury
                                      2                              charge did not contain a separate question asking if any of the
upon the property of the Plaintiffs? Each question required
the jury to *228 answer separately for SCI International and         actors were SCI International employees, the Guerras must
SCI Texas, and the jury answered “Yes” as to each defendant          have conclusively proved that they were employees because
for each question.                                                   “all independent grounds of recovery ... not conclusively
                                                                     established under the evidence and no element of which is
The Guerras argue that the testimony of several cemetery             submitted or requested are waived.” See TEX.R. CIV. P. 279.
employees who said that they worked for “SCI” and records            We disagree.
in Jaye Gaspard's personnel file with the SCI logo and
referencing “Service Corporation International” are evidence     Whether the actors involved in this case were SCI
that SCI International employed the Mont Meta workers and        International employees was not an independent ground of
was therefore liable for their actions. We disagree.             recovery; the actors' status as employees was an element of
                                                                 the Guerras' negligence claim against SCI International. See
                                                                 Diamond Offshore Mgmt. Co. v. Guidry, 171 S.W.3d 840,
                                                                 844 (Tex.2005) (noting that when evidence is conflicting
                     A. Standard of Review                       regarding whether an employee was acting in the scope of
                                                                 his employment at the time of an accident—a prerequisite
 [1]    [2]      [3] A no-evidence challenge will be sustained
                                                                 for imposing vicarious liability—a jury finding is required);
when “(a) there is a complete absence of evidence of a vital
                                                                 see also COMM. ON PATTERN JURY CHARGES, STATE
fact, (b) the court is barred by rules of law or of evidence
                                                                 BAR OF TEX., TEXAS PATTERN JURY CHARGES
from giving weight to the only evidence offered to prove a
                                                                 —GENERAL NEGLIGENCE PJC 7.1 (Comment) (2006)
vital fact, (c) the evidence offered to prove a vital fact is no
                                                                 (explaining that a question asking whether an actor is an
more than a mere scintilla, or (d) the evidence conclusively
                                                                 employee of a defendant should be used “if there is a
establishes the opposite of the vital fact.” King Ranch, Inc.
                                                                 factual dispute about the employment element essential to a
v. Chapman, 118 S.W.3d 742, 751 (Tex.2003). Evidence
                                                                 defendant's vicarious liability”).
is more than a scintilla if it “rises to a level that would
enable reasonable and fair-minded people to differ in their
                                                                  [7] [8] When an element of a claim is omitted from the jury
conclusions.” Ford Mtr. Co. v. Ridgway, 135 S.W.3d 598,
                                                                 charge without objection and no written findings are made
601 (Tex.2004). If, however, the evidence does no more than
                                                                  *229 by the trial court on that element then the omitted
create a mere surmise or suspicion and is so slight as to
                                                                 element is deemed to have been found by the court in such
necessarily make any inference a guess, then it is no evidence.
                                                                 manner as to support the judgment. TEX.R. CIV. P. 279; In
Id. We presume that jurors made all inferences in favor of the


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Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

re J.F.C., 96 S.W.3d 256, 263 (Tex.2002). Here there was no
objection to the charge on the basis that it omitted the element     [10] [11] Apart from Trevino's testimony, which we have
nor did the trial court make findings on it, so there is a deemed   determined was no evidence when properly considered in
finding in support of the judgment. But just as with any other      context, the testimony that the Guerras claim supports a
finding, there must be evidence to support a deemed finding.        finding that the cemetery workers were employed by SCI
Thus, we next address whether legally sufficient evidence           International were statements about “SCI.” Both SCI entities
supports the finding here. See In re J.F.C., 96 S.W.3d at 276;      had the initials SCI in their name and were referred to as
Ramos v. Frito–Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990).           SCI by witnesses and the attorneys throughout the trial.
                                                                    Statements that the workers were employed by “SCI” only
                                                                    allow for speculation that they were employed by SCI
                                                                    International. And findings based on evidence that allows
                       C. The Evidence
                                                                    for no more than speculation—a guess—are based on legally
The Guerras assert that testimony from persons working at           insufficient evidence. See City of Keller, 168 S.W.3d at 827
Mont Meta supports a finding that they were employed by SCI         (“[L]egal-sufficiency review in the proper light must credit
International. The Guerras point to testimony from several          favorable evidence if reasonable jurors could, and disregard
cemetery employees to the effect that they worked for “SCI.”        contrary evidence unless reasonable jurors could not.”). Thus,
For example, the Guerras reference testimony by a foreman           under this record, testimony *230 that “SCI” employed the
at Mont Meta who testified he was employed “[w]ith the SCI          cemetery workers is no evidence they were employed by SCI
company,” and testimony by the employee who worked with             International.
the Guerras to pick the burial plots that she was employed by
“SCI.” The Guerras also point out that Raymond McManness,            [12] The Guerras also point to testimony from a former
who identified himself as “area vice-president,” was asked          family service counselor supervisor at Highland Memorial
by the Guerras' attorney about his employment with “SCI”            Park in Weslaco that he was employed by “Service
and “SCI” having buried Mr. Guerra in the wrong spot, yet           Corporation International.” According to the testimony,
McManness did not clarify what “SCI” meant. Further, the            Highland Memorial Park was owned by “SCI.” But there
Guerras reference testimony of Mont Meta's former general           was no evidence that the Mont Meta workers had the
manager, Vicky Trevino.                                             same employer as the Highland Memorial Park workers,
                                                                    even assuming the Highland workers were employed by
 [9] We first address Trevino's testimony. At trial she             SCI International. The former Highland Memorial Park
affirmatively answered a question from the Guerras' attorney        employee's testimony is no evidence that Service Corporation
inquiring whether she stated in her deposition that she worked      International employed the Mont Meta workers.
for “Service Corporation International, SCI.” Although
she made the acknowledgment in her trial testimony, her              [13] The court of appeals referenced the presence of the
deposition testimony, which was shown to the jury in a              SCI logo on Jaye Gaspard's personnel paperwork as evidence
video, was actually that Trevino was employed by “SCI.”             that he was employed by SCI International. But in contrast to
And during her trial cross examination about her deposition         the Guerras' assertions as to SCI International's relationship
testimony, she did not waiver in maintaining that she worked        to the cemetery employees, the President of SCI Texas,
for SCI Texas, SCI Texas operates Mont Meta, and SCI Texas          William O'Brien, testified that SCI Texas is a wholly owned
employed the people who worked at Mont Meta. Taking                 subsidiary of SCI International; SCI Texas contracted with
her testimony in context, as we must, it is no evidence             Mrs. Guerra; SCI International does not have any employees;
that Trevino or any of the other cemetery employees were            SCI International does not own or operate any funeral homes
employed by SCI International. See City of Keller, 168              or cemeteries; and SCI International's only assets are shares of
S.W.3d at 812 (“[E]vidence cannot be taken out of context           stock in subsidiary companies. O'Brien also testified that all
in a way that makes it seem to support a verdict when it            SCI-related businesses were authorized to use the SCI logo.
in fact never did.”); Bostrom Seating, Inc. v. Crane Carrier        Thus, the presence of the SCI logo on Gaspard's personnel
Co., 140 S.W.3d 681, 684 (Tex.2004) (holding that comments          documents was as consistent with employment by SCI Texas
from deposition read out of context at trial were not evidence      as it was with employment by SCI International, and the
of a product defect when the comments were considered in            inference that SCI International employed Gaspard was no
context and clarified by the expert who made them).                 greater than the inference that SCI Texas employed him.



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Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

Accordingly, the inferences were equal and the presence of         That determination requires judgment to be rendered in its
the logo on the documents was legally insufficient to support a    favor. Therefore, we will not address SCI International further
finding that Gaspard was employed by SCI International. See        except as necessary to resolve the issues asserted by SCI
id. at 813 (“When the circumstances are equally consistent         Texas. For ease of reference SCI Texas generally will be
with either of two facts, neither fact may be inferred.”); All     referred to from now on as “SCI.”
Star Enters., Inc. v. Buchanan, 298 S.W.3d 404, 423–24
(Tex.App.-Houston [14th Dist.] 2009, no pet.) (noting that
under the equal inference rule, where the names of a number
                                                                                  III. Mental Anguish Damages
of affiliated companies began with “Antero Resources,”
invoices addressed to “Antero Resources” were no evidence          SCI claims there was legally insufficient evidence to support
that the vendors were referring to one particular company);        the jury's findings that the Guerras suffered compensable
see also BMC Software Belgium, N.V. v. Marchand, 83                mental anguish, or in any event, to support the amount of
S.W.3d 789, 800 (Tex.2002) (finding that use of letterhead         damages awarded. We disagree in part. As to Mrs. Guerra, the
containing “BMC Software” by two corporations was not              evidence was sufficient to support some damages for mental
evidence that those corporations failed to observe corporate       anguish. As to Julie, Gracie, and Mary Ester, the evidence was
formalities where both corporations had “BMC Software” as          legally insufficient to support any mental anguish damages.
part of their names).

 [14] The Guerras also assert that an “employee requisition”
form in Jaye Gaspard's personnel file is evidence that Mont                     A. Nature of Evidence Required
Meta's funeral director was employed by SCI International           [15] [16] Generally, an award of mental anguish damages
because the top of the form states “Service Corporation            must be supported by direct evidence that the nature, duration,
International.” But the form also contained a blank space for      and severity of mental anguish was sufficient to cause,
“Location or Department Name” which stated “Mont Meta/             and caused, either a substantial disruption in the plaintiff's
Restlawn/Cox Funeral Home.” William O'Brien explained              daily routine or a high degree of mental pain and distress.
that the form was supplied by SCI International but Mont           Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex.2002). Citing
Meta was making a requisition request for Mont Meta.               Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995),
He explicitly denied that the request was for someone to           the court of appeals stated that such direct evidence is not
be employed by SCI International. Under this record, the           necessarily required in cases involving particularly shocking
“Service Corporation International” heading on the form was        or disturbing events or injuries because those events or
legally insufficient to support a finding that SCI International   injuries in and of themselves support an inference that
employed any of the Mont Meta workers.                             mental anguish accompanied them. 348 S.W.3d at 247. The
                                                                   court noted that one such disturbing event we recognized in
Citing Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468,         Parkway is the mishandling of a corpse. Id. The Guerras also
470 (Tex.App.-San Antonio 1998, pet. denied), the Guerras          assert that this is such a case—the events were particularly
also claim that SCI's failure to produce evidence that would       disturbing and upsetting, permitting the jury to infer mental
show the Mont Meta *231 workers did not work for SCI               anguish. They point to our citation in Pat H. Foley &
International is itself evidence that they worked for SCI          Co. v. Wyatt, 442 S.W.2d 904, 907 (Tex.Civ.App.-Houston
International. But Middleton is a spoliation case, and the         [14th Dist.] 1969, writ ref'd n.r.e.), where we noted that the
Guerras have not asserted that spoliation of evidence was at       mishandling of a corpse involves disturbing events. Parkway,
issue here. See id. (“[T]he deliberate spoliation of evidence      901 S.W.2d at 443. But we cited Wyatt as an example of a
relevant to a case raises a presumption that the evidence          case involving events that justified mental anguish damages;
would have been unfavorable to the cause of the spoliator.”).      we did not cite Wyatt as a case in which the actions of
Further, SCI presented direct evidence through the testimony       the defendant or the occurrence itself constituted evidence
of O'Brien, the President of SCI Texas, that the Mont Meta         of mental anguish that, absent other evidence, will support
workers were not employed by SCI International.                    mental anguish damages. Id.; see City of Tyler v. Likes, 962
                                                                   S.W.2d 489, 495 (Tex.1997) (citing Wyatt as an example of a
In sum, we agree with SCI International that there was legally     contract case dealing with an intensely emotional subject and
insufficient evidence to support liability findings against it.    in which mental anguish is compensable and foreseeable if



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Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

a duty is breached). Even when an occurrence is of the type         the daughters themselves, identified a specific “high degree
for which mental anguish damages are recoverable, evidence          of mental pain and distress” experienced by particular
of the nature, duration, and severity of the mental anguish is      family members, or a substantial disruption of any particular
required. See Bentley, 94 S.W.3d at 606 (citing Parkway, 901        family member's daily routine. The witnesses agreed with
S.W.2d at 444); Likes, 962 S.W.2d at 495.                           the Guerras' attorney that the family generally suffered
                                                                    “devastation,” but generalized, conclusory descriptions of
                                                                    how an event affected a person are insufficient evidence
                                                                    on which to base mental anguish damages. See Likes, 962
                      B. The Daughters
                                                                    S.W.2d at 495 (“The invasion of the same legal right may lead
 [17] There was little evidence from the daughters about how        to extreme anguish in one person while causing essentially
the events specifically *232 affected them. Julie testified         no emotional damage to another.”); Parkway, 901 S.W.2d at
that “[t]his has been the hardest thing that I have had to go       444 (noting that a factfinder should be provided with adequate
through with my family and myself. I have had lots of nights        details to assess mental anguish claims). The daughters'
that I don't sleep just thinking” and that it had been “very        statements about their emotions, even combined with the
difficult.” In her complaint letter to the funeral commission       statements of the other witnesses, did not support the jury
she stated “I cannot begin to express the frustration and           finding that the events caused any of the daughters to suffer
agony we have all gone through.” She testified that she had         a substantial disruption of their daily routine or a high degree
continued to work, travel, and participate in volunteer and         of mental pain and distress. See Gunn Infiniti v. O'Byrne,
other activities.                                                   996 S.W.2d 854, 860–61 (Tex.1999) (finding no evidence
                                                                    supported mental anguish damages where claimant testified
Mary Ester's testimony about how the events affected her was        he had a lot of anguish, grief, severe disappointment, and
briefer than Julie's. Mary Ester stated that “it's not part of my   embarrassment because those did not rise to a level of a high
life. I didn't have to accept that and I do not accept it and I     degree of mental pain and distress nor was there evidence of
won't accept it.”                                                   a substantial disruption of his daily routine).


Gracie's testimony about how she was affected was likewise          In sum, the evidence was legally insufficient to support
cursory. She testified “[w]e're not at peace. We're always          findings that any of the daughters suffered compensable
wondering. You know, we were always wondering where our             mental anguish.
father was. It was hard to hear how this company stole our
father from his grave and moved him. That was hard. And I
pray that none of you have to go through this.”                                       C. Mrs. Juanita Guerra

The Guerras argue that evidence of the impact on the family          [18] Mrs. Guerra testified that when she found out her
also came from third parties. For example, the Mont Meta            late husband's grave had *233 been tampered with she
employee who helped the Guerras select the plots, testified         could not sleep at night and went through a lot of stress. She
that she believed the family was still bothered by the situation    testified that she suffered burning in her stomach due to the
and having to move a body that was buried in the wrong              stress and sought medical treatment for the symptoms. She
place is devastating to any family that has just gone through       continued to have headaches and take medication for anxiety
the mourning process. The president of SCI Texas testified          and depression. She indicated that she had been worrying and
that the Guerras were “really hurt by this” and that there          having fear and anxiety about what might be done to her at
“certainly is a level of devastation within their family for        Mont Meta for nearly six years since Mr. Guerra's casket was
this.” The former manager of Mont Meta agreed that a family         moved. We conclude that there is some evidence to support
that had gone through what the Guerras had would suffer             the jury's finding that Mrs. Guerra suffered the degree of
“devastation.”                                                      mental pain and distress that will support damages for mental
                                                                    anguish.
These witnesses generally acknowledged that the Guerra
family members experienced very strong emotional reactions          SCI argues that Mrs. Guerra's daily routine was not
that would be expected from the unauthorized moving of              substantially disrupted because she volunteers at a nursing
a loved one's body. But none of the witnesses, including            home, participates in visitation with her church, works in the



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Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

church kitchen, and travels occasionally. But even assuming       The Guerras claim that SCI waived error because although
there was no evidence her routine was disrupted, that lack        SCI first raised objections to evidence of other suits, verdicts,
of evidence did not negate the evidence that she did suffer       and judgments by a motion in limine and objected when
compensable mental anguish. See Wackenhut Corr. Corp. v.          the evidence was introduced, SCI did not object when the
de la Rosa, 305 S.W.3d 594, 640 (Tex.App.-Corpus Christi          Guerras' attorney referred to the matters during jury selection
2009, no pet.) (rejecting a claim that because children who       and opening statement. They cite Texas Employers' Insurance
had been awarded mental anguish damages were making               Ass'n v. Schanen, 263 S.W.2d 614, 615 (Tex.Civ.App.-San
good grades in school, they were not suffering mental             Antonio 1953, no writ), in support of their assertion that
anguish).                                                         attorney's statements made during jury selection must be
                                                                  objected to on pain of waiving error to the introduction of
SCI asserts that there was confusion at trial regarding whether   evidence during trial.
Mrs. Guerra's mental anguish concerned future anxiety for
which the jury awarded no damages. It points to the Guerras'      But in Schanen the trial court overruled a motion for mistrial
attorney's statements such as “Mrs. Guerra's main anxiety         based on questions propounded to and statements made by a
concern is what is this company going to do to her once she       potential juror during voir dire, even though the party moving
is buried.” SCI asserts that this apprehension concerns future    for mistrial did not object to the questions or answers at
anxiety for which damages were not awarded by the jury.           the time they occurred. The court of appeals analogized the
But Mrs. Guerra's testimony was that she had worried and          situation to one in which evidence is received during trial
anguished in the past about what would happen to her and          without objection. See id. at 614–15. It held that in the absence
her husband when she is buried. To the extent the testimony       of a timely objection, the trial court did not err in denying the
supports mental anguish damages, it supports damages for          motion for mistrial. Id.
anguish in the past and the jury's answers reflect that.
                                                                   [19]     [20] Schanen is inapposite. SCI is not seeking a
SCI urges that if the evidence is legally sufficient to support   mistrial or complaining about matters that occurred during
some damages, it is legally insufficient to support the entire    the jury selection process and to which it did not object;
amount of damages awarded to Mrs. Guerra by the jury. See         it is complaining about the admission of evidence during
Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607,          trial, to which it timely objected. Error is preserved with
614 (Tex.1996) (“Not only must there be evidence of the           regard to a ruling that admits evidence if the opponent of
existence of compensable mental anguish, there must also          the evidence makes a timely, specific objection and obtains
be some evidence to justify the amount awarded.”). We do          a ruling. TEX.R.APP. P. 33.1; TEX.R. EVID. 103; Bay Area
not address the argument because even if we sustained it, the     Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235
result would be a remand to the court of appeals to consider a    (Tex.2007). The failure to object to an attorney's statements
remittitur. See Bentley, 94 S.W.3d at 607–08. As we explain       during voir dire of the jury panel, without more, does not
below, our determination of other issues requires the case to     waive a later objection to evidence offered during trial,
be remanded for a new trial.                                      because statements by lawyers during the jury selection
                                                                  process are not evidence. SCI timely objected when evidence
                                                                  of other lawsuits was introduced and the Guerras do not argue
                                                                  otherwise. SCI preserved error. See McShane, 239 S.W.3d at
                   IV. Evidentiary Issues
                                                                  235.

      A. Other Lawsuits, Verdicts, and Judgments                   [21] The Guerras also assert that SCI waived error by
                                                                  referring to the other lawsuits in its own opening statement.
SCI challenges the trial court's admission of evidence about      This reference, the Guerras argue, “opened the door” to the
other lawsuits, verdicts, and judgments against it. 3 SCI         evidence because if a party or the party's attorney references
asserts *234 that the evidence was irrelevant. 4                  a matter first, thereby “opening the door” by effectively
                                                                  inviting a response, then the opposing party is entitled to
                                                                  make an appropriate response. See Sw. Elec. Power Co. v.
                                                                  Burlington N. R.R., 966 S.W.2d 467, 473 (Tex.1998) (noting
                  1. Preservation of Error
                                                                  that a party may not complain on appeal of the admission



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54 Tex. Sup. Ct. J. 1191

of improper evidence if the party “opened the door” by              provided the most details about a case involving Rudy Garza,
introducing evidence that is the same or similar in character).     who was buried at Highland Memorial Park in Weslaco in
But here the Guerras' attorney, not *235 SCI's attorney, was        1977. Another family—the Rogers—purchased four side-by-
the first to allude to other lawsuits in opening statements.        side plots at Highland Memorial in 1982. One of the plots
The response of SCI's attorney was not inappropriate in             was the plot where Garza was buried. When a member of the
manner or substance: he acknowledged that other suits had           Rogers family died in 2002 and was to be buried, a Memorial
taken place, but maintained that the trial should be about          Park employee discovered that Garza was buried in a plot that
the Guerra family's claims and the facts underlying those           had been sold to the Rogers. The cemetery employees tried to
claims. SCI's attorney did not exceed the boundaries of the         conceal the mistake, then asked Garza's family for permission
Guerras' attorney's statements or introduce new matters into        to move his body. The family denied permission and the body
the proceedings so that he invited a response. SCI did not open     was not moved.
the door or waive error.
                                                              The resale of Garza's plot occurred in a different cemetery
                                                              before it was owned by SCI Texas and nearly twenty years
                                                              before the events in this case. There was no evidence that any
               2. Relevance of the Evidence
                                                              of the same employees were involved in both the Garza case
 [22]    [23] We review a trial court's decision to admit and the Guerras' case, that the events were *236 somehow
evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d connected, or that circumstances surrounding the sales were
570, 575 (Tex.2005). Evidence of other wrongs or acts is      similar.
not admissible to prove character in order to show “action
in conformity therewith.” TEX.R. EVID. 404. But it is         The Guerras presented few details about the other cases
admissible to show a party's intent, if material, provided    they alleged involved sales of plots that already belonged
the prior acts are “so connected with the transaction at      to someone else. To the extent details were provided, they
issue that they may all be parts of a system, scheme or       showed that the sales were at different cemeteries and each
plan.” Oakwood Mobile Homes, Inc. v. Cabler, 73 S.W.3d        took place at least two years before the events underlying
363, 375 (Tex.App.-El Paso 2002, pet. denied); see TEX.R.     the Guerras' case. The area vice-president over Mont Meta at
EVID. 404. This can be shown through evidence of similar      the time of Mr. Guerra's burial was in charge of some of the
acts temporally relevant and of the same substantive basis.   other cemeteries when plots were sold twice, but there was no
See Durbin v. Dal–Briar Corp., 871 S.W.2d 263, 268–69         evidence he had any involvement in the sales or that anyone
(Tex.App.-El Paso 1994, writ denied), overruled, in part, on  involved in the Guerra events was involved in the other sales.
other grounds by Golden Eagle Archery, Inc. v. Jackson,
24 S.W.3d 362 (Tex.2000). We agree with SCI that the                The Guerras claim that the other cases were relevant to show
Guerras failed to demonstrate sufficient connection between         a pattern of indifference amounting to a common scheme
the events in this case and the alleged actions in other lawsuits   and show that SCI took no action to avoid recurrences
to show the other suits were admissible.                            of misconduct. But without evidence of the actual facts
                                                                    and circumstances involved, the evidence does not show
 [24] For most of the other suits referenced by the Guerras,        a sufficient connection to the events at issue to support
only the plaintiffs' petitions were admitted and testimony          their being relevant. See Durbin, 871 S.W.2d at 268–69
encompassed generalizations as to the different suits. The          (finding that a trial court abused its discretion in a workers'
Guerras assert such evidence was admissible because the             compensation wrongful discharge case by excluding evidence
other suits involved similar facts to those underlying their        of other retaliatory acts by a corporation involving the same
claim—double sale of a plot or moving a body without the            supervisory personnel, the same workplace, and the same
                                                                    pattern of conduct).
family's permission. 5

                                                                    In regard to suits with claims allegedly similar to the Guerras'
As for the suits involving allegations that plots that had
                                                                    claim for moving Mr. Guerra's body without permission, the
already been purchased and were sold a second time to
                                                                    trial court admitted evidence of one suit in which a body was
someone else, the Guerras presented no evidence that those
                                                                    moved without permission. The evidence in that case showed
events were so connected to the events here that they were all
                                                                    that when Estella Cooper's husband was buried in 2003 at
part of a system, scheme, or plan. For example, the Guerras


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54 Tex. Sup. Ct. J. 1191

Sunset Memorial Gardens in Odessa, a cemetery owned by            that SCI illegally dug up bodies “not just in this case but
SCI Texas, he was buried in the wrong plot. Cooper knew on        you'll hear others” and “[w]e'll also be showing you again
the day of her husband's burial that he was not being buried      they have been involved in other lawsuits.” During trial
in the plot she had purchased, but she did not say anything.      the Guerras' attorney questioned SCI representatives about
When she later went to visit the grave, his body had been         the suits, sometimes reading allegations from the pleadings
moved to the plot she had purchased. Cooper testified that        which had been admitted as evidence. And during closing
she sued “SCI” and a jury awarded her and her family $3.5         argument, the Guerras' attorney continued to emphasize the
million.                                                          other lawsuits, verdicts, and judgments. For example, he
                                                                  argued that “Odessa awarded $3.5 [million] to that lady who
Although both the Guerras' case and the Cooper case involved      they did the same thing to in Midland.” Manifestly, the
cemetery employees moving a body without permission, that         Guerras' attorney intended the evidence to be a significant
is where the similarities end. The events occurred at different   and pervasive part of the trial. See Reliance Steel, 267 S.W.3d
cemeteries and there was no evidence that any of the same         at 874 (“[A] party's insistence on introducing inadmissible
employees were involved or that they occurred under similar       testimony ‘indicates how important he thought it was to his
circumstances. The events also occurred more than a year          case.’ ” (quoting Alvarado v. Farah Mfg. Co., 830 S.W.2d
apart. There is no evidence that the events were part of a        911, 917 (Tex.1992))).
system, scheme, or plan.
                                                                   [26] In this case there was no evidence three of the
We conclude that the trial court erred by admitting irrelevant    four plaintiffs suffered compensable mental anguish, yet the
evidence of other lawsuits, verdicts, and judgments. We next      jury awarded each of the three mental anguish damages of
consider whether the errors were harmful.                         $100,000. Because there was no evidence to support a finding
                                                                  of compensable mental anguish, the jury's findings must
                                                                  have been based on something other than properly admitted
                                                                  evidence, and we have no doubt that the extensive evidence
                           3. Harm
                                                                  of other suits, allegations in the suits, and similar evidence
 [25] An error in admitting evidence requires reversal if         was a significant factor in the jury's damages findings, both
it probably caused the rendition of an improper judgment.         actual and punitive. See id. at 872. We conclude that the
TEX.R.APP. P. 61.1; Nissan Motor Co. v. Armstrong, 145            erroneous admission of evidence of other lawsuits, verdicts,
S.W.3d 131, 144 (Tex.2004). In determining whether the            and judgments was harmful and requires the case to be
error was harmful we evaluate the entire case from voir dire      remanded for a new trial.
to closing argument, considering the evidence, strengths and
weaknesses of the case, and the verdict. Reliance Steel &
Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex.2008).                         B. Punitive Damages in a Trust
We also consider whether counsel emphasized the erroneous
evidence and whether the admission of the evidence was            Although we have concluded that the case should be
calculated or inadvertent. Id. at 874; Nissan Motor Co., 145      remanded for a new trial, in order to provide guidance to
S.W.3d at 144 (“[W]hether erroneous admission is harmful is       the trial court on retrial we next address SCI's claim that the
more a matter of judgment than precise measurement.”).            trial court improperly admitted evidence that Mrs. Guerra
                                                                  would put any punitive damages she received into a trust to
 *237 The Guerras' attorney colorfully and skillfully             pay for funerals for persons who could not afford them. 6
emphasized the evidence of suits, verdicts, and judgments         See MCI Sales & Serv. v. Hinton, 329 S.W.3d 475, 495 n.
against other cemeteries from voir dire through closing           19 (Tex.2010). The questions and answers of which SCI
argument. For example, during voir dire he asked some venire      complains are as follows:
members who had family buried in Buena Vista cemetery
which was owned by “SCI,” questions such as “have they
ever from Buena Vista told you that they also had allegations       Q. You're also asking the jury to award punitive damages
and lawsuits filed against them in this county for selling          for this criminal behavior of theirs, correct?
plots when people were still—were already buried in them?”
He commented in his opening statement about evidence                   A. Of course.



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54 Tex. Sup. Ct. J. 1191

                                                                      not relevant to the issue of whether she was entitled to an
     Q. But you don't want a dime of that yourself do you?            injunction regarding monitoring of SCI cemeteries.

     A. No.
                                                                      The Guerras also assert that the evidence was relevant to
     Q. In fact, you want that put in a trust to pay for people       rebut SCI's attorney's statement during voir dire that the case
     who are not able to afford their own funeral?                    was about the amount of damages. We disagree. During voir
                                                                      dire SCI's attorney stated “[w]e are not fighting about the
     A. That's right.                                                 circumstances of what happened because we admit that it's
                                                                      wrong, but how much money.” That was simply a statement
     Q. That's where any monies they award will go and
                                                                      focusing the jury's attention on the damages issues that would
     you've got a trust set up to do that, correct?                   be submitted to them. The statement did not change the focus
                                                                      of the jury to what the Guerras would do with any money they
     A. Yes, sir.
                                                                      received.
   SCI claims that this evidence is irrelevant.
 [27] Evidence is relevant, and therefore admissible, if it            [28] The Guerras claim that SCI waived its complaint by
has any tendency to *238 “make the existence of any fact              offering similar evidence—evidence that SCI accommodates
that is of consequence to the determination of the action             families who are needy—because a party may not complain
more probable or less probable than it would be without               on appeal of the improper admission of evidence if the
the evidence.” TEX.R. EVID. 401, 402. The purposes of                 complaining party introduced the same evidence or evidence
punitive damages are to deter and punish culpable conduct.            of a similar character. See Sw. Elec. Power Co., 966 S.W.2d
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887,                  467 at 473. After Mrs. Guerra testified that she would put any
896 (Tex.2000); see TEX. CIV. PRAC. & REM.CODE                        punitive damages into a trust, SCI presented evidence that
§ 41.001(5) (providing that exemplary damages, including              it has a program to help families who cannot afford funeral
punitive damages, are “damages awarded as a penalty or by             services. SCI's evidence was not exactly the same as Mrs.
way of punishment”). The Legislature has set out several              Guerra's testimony, but in context it seems to have been an
factors to be considered when determining the amount of               attempt to blunt the effect of her testimony about how she
exemplary damages. These include the nature of the wrong,             planned to use any exemplary damages. Because the case
the character of the conduct involved, the wrongdoer's degree         will be remanded for a new trial for other reasons, we need
of culpability, and the situation and sensibilities of the parties.   not decide whether Mrs. Guerra's testimony was harmful or
Id. § 41.011. Evidence about what Mrs. Guerra planned to do           whether SCI waived its complaint. But for the trial court's
with any punitive damages was not relevant to proving any of          benefit on retrial we note that Mrs. Guerra's testimony about
these factors or to penalizing or punishing SCI. See TEX.R.           what she planned to do with any punitive damages award was
EVID. 401; see also Honeywell v. Sterling Furniture Co., 310          not relevant and was not admissible.
Or. 206, 797 P.2d 1019, 1021 (1990) (“[I]nstructing a jury
that a portion of any punitive damage award will be used to
pay the plaintiff's attorney or to contribute to a worthy cause,
                                                                                          *239 V. Other Issues
such as help for victims of crime, does nothing to further or
even to inform the jury as to the proper goals of punitive            SCI also claims that (1) the jury was improperly influenced
damage awards. Instead, the instruction distracts the jury from       by an improper “Golden Rule” argument in which it claims
the appropriate line of analysis that this Court has said a jury      the Guerras' attorney asked the jury to put themselves in
should follow in cases involving potential awards of punitive         the Guerras' place and award what they would want to
damages....”).                                                        be awarded, and (2) because there was only one damages
                                                                      question based on three theories of liability, it cannot be
The Guerras argue that the evidence was relevant to their             determined whether the damages were supported by the one
claim for injunctive relief in which they requested SCI               cause of action that SCI asserts was viable. These issues
be required to fund a program to study and monitor their              may not recur during the new trial on remand and we do not
cemeteries and implement procedures to ensure proper record           address them. See Columbia Rio Grande Healthcare, L.P. v.
keeping. But Mrs. Guerra's plans to set up a trust to pay for         Hawley, 284 S.W.3d 851, 865 (Tex.2009).
funerals for people who could not afford them were simply



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              14
Service Corp. Intern. v. Guerra, 348 S.W.3d 221 (2011)
54 Tex. Sup. Ct. J. 1191

                                                                        take nothing from SCI International. Mrs. Guerra's claim
                       VI. Conclusion
                                                                        against SCI Texas is remanded for a new trial.
We reverse the judgment of the court of appeals. We render
judgment that (1) Julie, Gracie, and Mary Ester take nothing
from SCI International and SCI Texas and (2) Mrs. Guerra                Parallel Citations

                                                                        54 Tex. Sup. Ct. J. 1191


Footnotes
1      Gaspard died after the meeting with the Guerra family.
2      The Guerras did not assert veil-piercing theories such as alter ego or use of the corporate form to perpetuate a fraud.
3      The SCI entities also challenge admission of evidence of other lawsuits and allegations of wrongdoing against SCI International. That
       evidence, involving cemeteries outside Texas, was similar to the type of evidence of other suits that was admitted against SCI Texas
       —but more inflammatory. It included allegations made in class-action pleadings, settlements, allegations of criminal wrongdoing,
       newspaper articles involving various allegations, reports of interviews with persons involved, and facts that for the most part were
       not similar to those involving the Guerras, and did not involve any of the Mont Meta employees who dealt with the Guerras, nor the
       decisions and actions taken to move Mr. Guerra's body. And at least some of the events described took place before SCI Florida, an
       SCI International subsidiary, owned one of the cemeteries involved in the other suits.
         Our failure to address the admission of that evidence should not be taken as approval of its admission. We do not address it in
         depth because SCI International will not be part of the trial on remand and the evidence was not connected with SCI Texas except
         through SCI Texas's relationship to SCI International.
4      SCI also asserts that the admission of this evidence unconstitutionally impacted punitive damages. We do not address this
       constitutional issue because we only decide constitutional questions when we cannot resolve issues on other grounds. In re B.L.D.,
       113 S.W.3d 340, 349 (Tex.2003).
5      The Guerras also claim that other suits involving burial of a body in the wrong space were similar to the facts of this case. But this
       case did not involve burial of a body in the wrong space. Mr. Guerra was buried in the space his family selected and purchased for
       him. Therefore, evidence of those suits was not admissible to show part of a system, scheme, or plan.
6      SCI also asserts that the admission of this evidence violates due process. We do not address the constitutional question. See In re
       B.L.D., 113 S.W.3d at 349.


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      15
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933



                    278 S.W.3d 806                              Reversed and rendered in part, affirmed in part, and
                Court of Appeals of Texas,                      remanded.
                  Houston (14th Dist.).

   Dan TURNER and Henry Bonaparte, Appellants,
                     v.                                          West Headnotes (30)
            Troy PERRY, Appellee.

        No. 14–07–01060–CV. | Jan. 27,                          [1]    Civil Rights
   2009. | Rehearing Overruled Feb. 26, 2009.                               Good faith and reasonableness; knowledge
                                                                       and clarity of law; motive and intent, in general
Synopsis                                                               Qualified immunity protects governmental
Background: Terminated school district police officer                  officials performing discretionary functions
brought First Amendment, due process, slander and                      from suit if their actions were objectively
intentional infliction of emotional distress action against            reasonable in the light of then clearly-established
sergeant and captain. The 215th District Court, Harris                 law.
County, Steven E. Kirkland, J., denied defendants' motions
for partial summary judgment, and defendants filed                     Cases that cite this headnote
interlocutory appeal.
                                                                [2]    Civil Rights
                                                                            Good faith and reasonableness; knowledge
Holdings: The Court of Appeals, Eva M. Guzman, J., held                and clarity of law; motive and intent, in general
that:                                                                  The question of whether an official may be
                                                                       held personally liable for an allegedly unlawful
[1] police officer's release of gang-related information to            official action, under the doctrine of qualified
website maintained by Department of Public Safety (DPS)                immunity, is determined by examining the
was not speech protected by the First Amendment;                       objective legal reasonableness of the action in
                                                                       light of the laws that were clearly established at
[2] police officer's report to county district attorney that           that time.
sergeant and captain entered his office and removed a traffic
citation he had written on a teacher was speech protected by           Cases that cite this headnote
the First Amendment;
                                                                [3]    Civil Rights
[3] sergeant and captain were not entitled to qualified                     Good faith and reasonableness; knowledge
immunity on claim that they violated officer's First                   and clarity of law; motive and intent, in general
Amendment rights by terminating him for reporting their
                                                                       An official's subjective belief that his conduct
removal of traffic citation;
                                                                       was lawful is irrelevant to the qualified
                                                                       immunity analysis, as the official's actions are
[4] officer had a protected property right in his job, for
                                                                       measured against a standard of objective legal
purposes of procedural due process;
                                                                       reasonableness.

[5] department's grievance procedure did not provide officer           Cases that cite this headnote
with the procedural due process to which he was entitled; and

[6] genuine issue of material fact precluded summary            [4]    Civil Rights
judgment on issue of whether sergeant and captain were                      Government Agencies and Officers
entitled to official immunity on terminated officer's slander          In analyzing whether qualified immunity applies
claim.                                                                 in an action against a governmental official,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

        courts first determine if the facts, taken in the
        light most favorable to the party asserting injury,    [8]    Civil Rights
        showed that the official's conduct violated a                      Employment practices
        constitutional right.                                         In analyzing the constitutionality of a public
                                                                      employer's actions against an employee, for
        Cases that cite this headnote                                 purposes of qualified immunity, courts look to
                                                                      the facts as the employer reasonably found them
 [5]    Civil Rights                                                  to be.
             Good faith and reasonableness; knowledge
                                                                      Cases that cite this headnote
        and clarity of law; motive and intent, in general
        In analyzing whether qualified immunity applies
        in an action against a governmental official, if       [9]    Constitutional Law
        the facts as alleged constitute a constitutional                    Public or private concern; speaking as
        violation, courts consider whether the right was              “citizen”
        clearly established in light of the specific context          Whether an employee's speech addresses
        of the case.                                                  a matter of public concern, for purposes
                                                                      of determining whether a public employer's
        Cases that cite this headnote                                 reaction violated the First Amendment, is
                                                                      determined by the content, form, and context of a
 [6]    Civil Rights                                                  given statement, as revealed by the whole record.
             Employment practices                                     U.S.C.A. Const.Amend. 1.
        A constitutional right was clearly established,               1 Cases that cite this headnote
        when determining whether qualified immunity
        applies in an employee's action against a
        governmental official, if the contours of the law      [10]   Constitutional Law
        at the time of the conduct at issue gave fair                       Public or private concern; speaking as
        warning that such conduct would violate the                   “citizen”
        employee's constitutional rights.                             Although not a general standard against which
                                                                      statements must be judged, factors that can
        Cases that cite this headnote                                 be considered when applying the content-form-
                                                                      context test to determine whether a governmental
 [7]    Constitutional Law                                            employee's statements touched upon a matter
              Public or private concern; speaking as                  of public concern and were constitutionally
        “citizen”                                                     protected include: (1) whether the speech was
                                                                      merely an extension of an employment dispute;
        Constitutional Law
                                                                      (2) whether the speech was focused on gathering
            Efficiency of public services
                                                                      ammunition for another round of controversy
        To apply the Pickering test in determining                    with the employee's superiors; (3) whether the
        whether a public employer unconstitutionally                  speech occurred at work or on the speaker's
        penalized an employee for engaging in protected               own time and outside of the working areas of
        speech, courts balance: (1) the interest of the               the office; (4) whether the speech impeded the
        employee, as a citizen, in commenting upon                    ability of the speaker or other employees to
        matters of public concern, and (2) the interest               perform their duties; (5) whether the employee
        of the governmental agency, as an employer, in                sought to inform the public that the employer was
        promoting the efficiency of the public services it            not discharging its governmental responsibilities
        performs. U.S.C.A. Const.Amend. 1.                            in the investigation and prosecution of criminal
                                                                      cases; and (6) whether the employee sought to
        Cases that cite this headnote
                                                                      bring to light actual or potential wrongdoing or



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

        breach of public trust on the part of superiors.                Grounds for removal or other adverse
        U.S.C.A. Const.Amend. 1.                                   action
                                                                   School district police officer's release of gang-
        Cases that cite this headnote
                                                                   related information to website maintained by
                                                                   Department of Public Safety (DPS) was not
 [11]   Constitutional Law                                         speech protected by the First Amendment, and
              Public or private concern; speaking as               thus sergeant and captain did not violate officer's
        “citizen”                                                  constitutional rights by disciplining him for such
        Constitutional Law                                         action, as the information was collected by
            Efficiency of public services                          officer while performing his duties as a gang
                                                                   officer, officer's statements were firmly within
        The inquiry regarding whether a governmental
                                                                   the scope of his employment responsibilities and
        employee's speech is constitutionally protected
                                                                   pursuant to his official duties, private citizens
        involves three considerations: (1) a court must
                                                                   could not post information on DPS website,
        determine whether the employee's speech was
                                                                   officer could not directly access the DPS website
        made pursuant to his or her official duties, and,
                                                                   without authorization from a superior, officer
        if so, then the speech is not protected by the
                                                                   did not obtain permission from his superiors as
        First Amendment, as restricting speech that owes
                                                                   required before such information was indirectly
        its existence to a public employee's professional
                                                                   posted on website, and the posting of such
        responsibilities does not infringe any liberties
                                                                   information created an increase risk of gang
        the employee might have enjoyed as a private
                                                                   violence. U.S.C.A. Const.Amend. 1.
        citizen; (2) if the speaker did not engage in the
        speech pursuant to official duties then the court          Cases that cite this headnote
        must determine whether the speech touched upon
        a matter of public concern; and (3) if the speech
        does pertain to a matter of public concern the      [14]   Constitutional Law
        court applies the Pickering/ Connick test to                     Public or private concern; speaking as
        balance the employee's interest in expressing              “citizen”
        his concerns with the governmental employer's              Education
        interest in performing its services efficiently.                Grounds for removal or other adverse
        U.S.C.A. Const.Amend. 1.                                   action
                                                                   Action by subsequently terminated school
        1 Cases that cite this headnote
                                                                   district police officer in reporting to county
                                                                   district attorney that sergeant and captain had
 [12]   Constitutional Law                                         unlawfully tampered with a government record
              Public or private concern; speaking as               by entering his office and removing a traffic
        “citizen”                                                  citation he had written on a teacher was speech
        That the employee's speech concerns facts                  protected by the First Amendment; officer
        learned while working is not dispositive, when             was not acting pursuant to his employment
        determining whether a governmental employee's              responsibilities when he made the report as
        speech is constitutionally protected under the             the speech consisted of the report to the
        First Amendment. U.S.C.A. Const.Amend. 1.                  district attorney rather than the creation of
                                                                   the citation, reporting unlawful conduct by
        1 Cases that cite this headnote                            police was inherently a subject of public
                                                                   concern, and interest of officer and the general
 [13]   Constitutional Law                                         public in allowing reports of unlawful police
            Discipline or reprimand                                conduct outweighed any alleged interest of
                                                                   police department in promoting efficiency and
        Education
                                                                   maintaining integrity by discouraging such



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        3
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

        reports, as the absence of protection for
        such reports would undermine efficiency and            [17]   Civil Rights
        integrity. U.S.C.A. Const.Amend. 1.                                Employment practices
                                                                      For a constitutional right of a governmental
        Cases that cite this headnote                                 employee to be considered clearly established,
                                                                      such that the violation of that right by
 [15]   Civil Rights                                                  a governmental official is not protected by
             Employment practices                                     qualified immunity, the contours of the right
                                                                      must be sufficiently clear that a reasonable
        Sergeant and captain in school district police
                                                                      official would understand that what he is doing
        department were not entitled to qualified
                                                                      violates that right.
        immunity on claim by police officer that sergeant
        and captain violated his First Amendment rights               Cases that cite this headnote
        by disciplining and terminating him after he
        reported to county district attorney that they had
        unlawfully tampered with a government record           [18]   Officers and Public Employees
        by entering his office and removing a traffic                      Grounds for removal or other adverse
        citation he had written on a teacher, as at the time          action
        the incidents occurred it was well-established                The whistleblower statute is intended to: (1)
        that a legitimate report of unlawful police                   enhance openness in government by protecting
        conduct was protected by the First Amendment,                 public employees who inform proper authorities
        and whistleblower statute expressly protected                 of legal violations, and (2) secure governmental
        governmental employees, including police                      compliance with the law on the part of those
        officers, from adverse employment actions when                who direct and conduct governmental affairs.
        employees in good faith reported a violation                  V.T.C.A., Government Code § 554.002.
        of the law by an employing governmental
        entity to an appropriate law enforcement                      1 Cases that cite this headnote
        authority. U.S.C.A. Const.Amend. 1; V.T.C.A.,
        Government Code § 554.002.                             [19]   Constitutional Law
                                                                          Source of right or interest
        1 Cases that cite this headnote
                                                                      A property interest protected by procedural
                                                                      due process arises where an individual has a
 [16]   Constitutional Law                                            legitimate claim of entitlement that is created,
            Balancing of interests                                    supported, or secured by rules or mutually
        Constitutional Law                                            explicit understandings. U.S.C.A. Const.Amend.
            Disruption or interference                                14.
        Balancing the interests of a governmental
                                                                      2 Cases that cite this headnote
        employee and the interest of the employer,
        when determining whether speech by the
        employee was speech protected by the First             [20]   Constitutional Law
        Amendment, involves determining whether the                       Source of right or interest
        speech: (1) was likely to generate controversy                Property interests protected by procedural due
        and disruption; (2) impeded the employer's                    process can be created by state law. U.S.C.A.
        general performance and operation; and (3)                    Const.Amend. 14.
        affected working relationships necessary to
        the employer's proper functioning. U.S.C.A.                   2 Cases that cite this headnote
        Const.Amend. 1.
                                                               [21]   Constitutional Law
        2 Cases that cite this headnote
                                                                          Termination or discharge



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                       4
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

        Education                                                  burdens that the additional or substitute
             Grounds for removal or other adverse                  procedural requirement would entail. U.S.C.A.
        action                                                     Const.Amend. 14.
        Education
                                                                   1 Cases that cite this headnote
            Proceedings and review
        School district police officer, disciplined
        and terminated after he released gang-              [24]   Constitutional Law
        related information to website maintained by                   Termination or discharge
        Department of Public Safety (DPS) and reported             Education
        to county district attorney that sergeant and                   Grounds for removal or other adverse
        captain unlawfully tampered with a government              action
        record by entering his office and removing a               Education
        traffic citation he had written on a teacher,                  Proceedings and review
        had a property interest in his job that was
                                                                   School district police department's grievance
        protected by procedural due process, as statute,
                                                                   procedure did not provide police officer,
        which was adopted in police department's policy
                                                                   who was terminated after he released gang-
        manual, barred disciplinary action against a law
                                                                   related information to website maintained
        enforcement officer in the absence of a complaint
                                                                   by Department of Public Safety (DPS),
        that was signed, delivered, investigated and
                                                                   reported to district attorney that sergeant and
        supported by evidence. U.S.C.A. Const.Amend.
                                                                   captain unlawfully removed a traffic citation
        14; V.T.C.A., Government Code §§ 614.022,
                                                                   he had written on a teacher, engaged in
        614.023.
                                                                   alleged inappropriate actions with students
        3 Cases that cite this headnote                            and complained to other officers about the
                                                                   department, with procedural due process to
                                                                   which he was entitled; by statute before
 [22]   Constitutional Law                                         disciplinary action could be taken against law
             Factors considered; flexibility and                   enforcement officers complaints had to be
        balancing                                                  signed, delivered, investigated and supported
        Generally, procedural due process is measured              by evidence, sergeant and captain acted
        by a flexible standard that depends on the                 on complaints that expressed conclusions of
        practical requirements of the circumstances.               other officers based on general allegations of
        U.S.C.A. Const.Amend. 14.                                  unidentified people, there was no investigation
                                                                   of officer's release of information to website, and
        Cases that cite this headnote                              department's human resource director believed
                                                                   that officer could be fired for any reason or no
 [23]   Constitutional Law                                         reason. U.S.C.A. Const.Amend. 14; V.T.C.A.,
             Factors considered; flexibility and                   Government Code §§ 614.022, 614.023.
        balancing
                                                                   3 Cases that cite this headnote
        Flexible standard used to determine the due
        process required to protect a protected property
        interest includes three factors: (1) the private    [25]   Officers and Public Employees
        interest that will be affected by the official                  Liabilities for official acts
        action; (2) the risk of an erroneous deprivation           Official immunity under common law is based
        of such interest through the procedures used,              on the need for public servants to act in the
        and the probable value, if any, of additional              public interest with confidence and without the
        or substitute procedural safeguards; and (3) the           hesitation that could arise from having their
        government's interest, including the function              judgment continually questioned by extended
        involved and the fiscal and administrative                 litigation.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        5
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933


        Cases that cite this headnote                                  Cases that cite this headnote


 [26]   Officers and Public Employees                           [30]   Judgment
             Liabilities for official acts                                  Public officers and employees, cases
        Official immunity is an affirmative defense                    involving
        barring state law claims against a governmental                Genuine issue of material fact as to whether
        employee's performance: (1) of discretionary                   sergeant and captain in school district police
        duties; (2) within the scope of the employee's                 department acted in good faith when they
        authority; (3) provided that the employee acts in              represented to others that terminated police
        good faith.                                                    officer engaged in inappropriate interactions
                                                                       with students, precluded summary judgment on
        Cases that cite this headnote                                  issue of whether sergeant and captain were
                                                                       entitled to official immunity, in terminated
 [27]   Officers and Public Employees                                  officer's slander action.
             Liabilities for official acts
                                                                       Cases that cite this headnote
        Doctrine of official immunity is based on the
        theory that the threat of liability will make
        public officials unduly timid in carrying out their
        official duties, and effective government will be
                                                               Attorneys and Law Firms
        promoted if officials are freed of the costs of
        vexatious and frivolous litigation.                     *811 Jon Erik Nichols, Kristi Michelle Huer Herring,
                                                               Jonathan Griffin Brush, Houston, for appellants.
        Cases that cite this headnote
                                                               James L. Reed, Michael Antoine Ackal, III, Houston, for
 [28]   Officers and Public Employees                          appellee.
             Liabilities for official acts
                                                               Panel consists of Chief Justice HEDGES and Justices
        Official immunity from state-law claims is             GUZMAN and BROWN.
        intended to insulate essential governmental
        functions from the harassment of litigation and
        remove the deterrent to public service posed by
                                                                                        OPINION
        the threat of heavy personal liability for errors in
        judgment.                                              EVA M. GUZMAN, Justice.

        Cases that cite this headnote                          In this accelerated interlocutory appeal, police officers Dan
                                                               Turner and Henry Bonaparte challenge the trial court's
 [29]   Officers and Public Employees                          denial of their assertions of qualified and official immunity.
             Liabilities for official acts                     Appellee Troy Perry sued appellants, his former supervisors,
                                                               alleging that they took adverse employment actions against
        When determining whether a public official has
                                                               him and slandered him in retaliation for his official complaint
        acted in good faith, for purposes of official
                                                               accusing them of unlawful conduct. Appellants contend that
        immunity, courts apply the objective standard
                                                               (a) they acted in response to unprotected speech, (b) their
        of whether a reasonably prudent official, under
                                                               employer's grievance process provided Perry with adequate
        the same or similar circumstances, could have
                                                               due process, and (c) their representations of Perry's conduct
        believed that his conduct was justified based on
                                                               were made in good faith. We reverse the trial court's denial
        the information he possessed when the conduct
                                                               of summary judgment based on qualified immunity to one of
        occurred.
                                                               Perry's First Amendment claims, affirm the trial court's ruling
                                                               in all other respects, and remand for further proceedings.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         6
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

                                                                   “growth plan” on July 15, 2005. According to Perry, both
                                                                   Turner and Bonaparte informed him that these disciplinary
                                                                   measures were, in part, a response to the CLEO posting.
 I. FACTUAL AND PROCEDURAL BACKGROUND
                                                                   Perry filed a grievance concerning that action, and in an
Alief Independent School District (“AISD”) employed                undated memorandum, Bonaparte summarized the discussion
appellee Troy Perry as a “Peace Officer–Gang Enforcement           that occurred during Perry's grievance hearing on September
Officer” in 2004. Sergeant Henry Bonaparte was Perry's             13, 2005. According to Bonaparte, Perry contended that he
direct supervisor, and Captain Dan Turner was the captain of       was reassigned from his position as a gang officer to a position
the AISD police department. As a police officer responsible        as a patrol officer as a “direct result of his disclosure of
for investigating gang-related activity, Perry interviewed         a gang[-]related issue via a national web site.” Bonaparte
students and obtained and evaluated documents containing           further stated that “Perry did not perform in a satisfactory
gang-related information. According to Plaintiff's Seventh         fashion during his tenure as a gang officer and he will not
Amended Petition, Perry completed an application in July           be returned to the position.” He concluded that “Perry has
2004 to submit AISD's “gang database” to the Department            had problems with following the chain of command and has
of Public Safety (“DPS”); however, Turner did not sign the         disseminated information to other outlets without supervisory
application, and the appellants did not allow Perry to release     approval.”
the information to DPS.
                                                                   While these events were unfolding, Perry allegedly learned
In April 2005, information Perry had learned through his           that Bonaparte and Turner had entered Perry's office while
work as a gang officer caused him concern that there would         he was away and removed a traffic citation he had written
be an increased risk of gang-related violence at several AISD      concerning an AISD teacher. According to Perry, Bonaparte
schools on May 5 and May 16, 2005. He communicated                 told him that the citation was removed because the teacher
the information he had gathered to gang investigators of           was “politically connected.” On July 20, 2005, Perry asked
several police agencies and the office of *812 the Texas           the advice of an acquaintance at the Harris Count District
Attorney General. On April 21 and 22, 2005, he emailed the         Attorney's Police Integrity Unit, and he was told that he
information to Turner, Bonaparte, and other law enforcement        should collect evidence of the alleged misconduct. Perry
agencies and personnel. According to Perry, DPS employee           then obtained still photographs from a surveillance tape
Vicki Norris contacted him and asked if he would allow             that reportedly shows Bonaparte and Turner entering Perry's
her to post this information to a website on his behalf. The       office and leaving with a piece of paper. On or about October
website, referred to in the record as “CLEO,” is a password-       18, 2005, Perry lodged an official complaint with an assistant
protected site accessible to criminal-justice personnel. To        district attorney in which he alleged that Bonaparte and
obtain access, an officer must complete a written application,     Turner had unlawfully tampered with a government record.
which must also be signed by the officer's supervisor. Perry       According to Perry, an assistant district attorney told him that
had completed an application, but because appellants refused       the cited teacher said Turner had assured her that he would
to sign it, he could not access CLEO directly. Perry therefore     “take care of” the citation.
authorized Norris to post the information for him.
                                                                   On October 27, 2005, Perry filed a complaint with the
After the information was published on the CLEO website,           school district in which he alleged that appellants had
Bonaparte emailed Perry that “the [AISD] superintendent's          retaliated against him for reporting their conduct to the district
office had been inundated with calls for information in            attorney's office. In connection with this grievance, Perry
reference to the warning you had posted on the CLEO web            also related that he arrested a female student at Elsik High
site.” On May 4, 2005, Bonaparte again emailed Perry,              School on September 21, 2005, and at Turner's instruction,
stating, “From this point on no information[ ] regarding           transported the student *813 to the AISD police station
activities in and around this district will be given out without   for processing. At the station, Perry telephoned an assistant
prior written approval from [a] departmental supervisor. Your      district attorney who accepted Perry's charge that the student
decision to export data is causing a number of problems; this      resisted arrest. Perry also intended to arrest the student
directive includes both written and verbal communications.”        for “Disorderly Conduct—Abusive Language,” but he was
In addition, Perry was demoted from his position as a gang         notified by the police dispatcher that Turner had ordered him
officer to a position as a patrol officer and placed on a          to leave the student in the custody of Officer Wayne Cox



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Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

and return to Elsik High School. While he was away, Cox            intentional infliction of emotional distress. In addition, he
issued the student a citation for “Disruption of Class” and        alleged that they took adverse employment actions against
released her. In a subsequent letter to Bonaparte, Perry stated    him in violation of his rights under the First and Fourteenth
that he advised the assistant district attorney that Cox had       Amendments.
erroneously released the student, and the attorney advised
Perry to complete the charges and process the arrest at a later    Turner and Bonaparte moved for partial traditional summary
date. Perry also complained about the release to Turner, who       judgment on the grounds that they are protected from suit by
allegedly responded that he, Turner, had been “ordered to          qualified immunity and official immunity, and Perry failed to
issue all students who were arrested at Elsik citations and        exhaust administrative *814 remedies. The trial court denied
release them.” Perry asserts that he completed an offense          the motion on November 26, 2007, and this accelerated
report on the day of these events regarding the charges against    interlocutory appeal timely ensued.
the student, and appellants expressed no objection to the
report at that time.

                                                                                    II. ISSUES PRESENTED
The charges against the Elsik High School student were
entered into the Juvenile Offender Tracking system on              In their first issue, Turner and Bonaparte contend the trial
                       1                                           court erred in denying their summary-judgment motion
September 29, 2005, and Perry attempted unsuccessfully
to apprehend the student on the same day. When he                  asserting qualified immunity to Perry's claims that they
returned to the station, he was given a letter of reprimand,       violated his constitutional rights to freedom of speech and
dated September 28, 2005, in which Turner stated that              due process. In their second issue, appellants contest the
Perry violated AISD's procedural requirement that all              trial court's failure to grant summary judgment based on
officers notify an AISD police supervisor of an alleged            appellants' assertions of official immunity to Perry's claims
criminal offense before contacting the Harris County District      of slander. 3
Attorney's office to institute charges. The letter continued,
“You are notified by receipt of this memorandum that you
are required to contact an AISD Police Supervisor prior to
contacting any ADA for charges.” Perry concluded that the                          III. STANDARD OF REVIEW
reprimand, “arbitrarily enforcing an unwritten practice,” was      To succeed in a motion for traditional summary judgment
issued to retaliate against him for reporting Bonaparte and        under Texas Rule of Civil Procedure 166a(c), the movant
Turner to the Harris County District Attorney's office for         must establish that there is no genuine issue of material fact
illegal conduct.                                                   and the movant is entitled to judgment as a matter of law. W.
                                                                   Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005) (citing
Perry filed further grievances on October 11, November             Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991)).
2, and November 11, 2005. After he filed the November              In reviewing a summary judgment, we consider the evidence
11th grievance, AISD's Director of Human Relations, Rose           in the light most favorable to the non-movant and resolve
Benitez, summoned Perry to her office. In a meeting between        any doubts in the non-movant's favor. Id. (citing Nixon v. Mr.
Benitez, Perry, and Bonaparte, AISD terminated Perry's             Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985)).
employment. On November 17, 2005, Benitez wrote to Perry
and stated that, at her November 11th meeting with him,
they discussed issues concerning Perry's job performance,
including his “[i]nappropriate interaction with students.”                               IV. ANALYSIS
Benitez further stated that a copy of the letter would be placed
                                                                   A. Qualified Immunity
in Perry's personnel file. 2                                        [1]    [2]   [3] Qualified immunity protects governmental
                                                                   officials performing discretionary functions from suit if
On January 12, 2006, Perry sued Turner, Bonaparte, and             their actions were objectively reasonable in the light of
AISD. He alleged that AISD terminated his employment in            then clearly-established law. Anderson v. Creighton, 483
retaliation against him for reporting violations of law by         U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523
Turner and Bonaparte. He asserted claims against Turner            (1987). Stated differently, the question of whether an official
and Bonaparte in their individual capacities for slander and


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Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

may be held personally liable for an allegedly unlawful           as a citizen, in commenting upon matters of public concern,
official action is determined by examining the objective legal    and (b) the interest of the governmental agency, as an
reasonableness of the action in light of the laws that were       employer, in promoting the efficiency of the public services
clearly established at that time. Id. at 639, 107 S.Ct. at 3038   it performs. Id. at 568, 88 S.Ct., at 1734–35. In analyzing the
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818–19, 102           constitutionality of the employer's actions, “courts look to the
S.Ct. 2727, 2738–39, 73 L.Ed.2d 396 (1982)). Because the          facts as the employer reasonably found them to be.” Waters v.
official's actions are measured against a standard of objective   Churchill, 511 U.S. 661, 677–78, 114 S.Ct. 1878, 1889, 128
legal reasonableness, the official's subjective belief that his  L.Ed.2d 686 (1994) (plurality op.). 4 Whether an employee's
conduct was lawful is irrelevant to the analysis. Id. at 641,    speech addresses a matter of public concern is determined
107 S.Ct. at 3040.                                               by the content, form, and context of a given statement, as
                                                                 revealed by the whole record. Connick v. Myers, 461 U.S.
 [4]     [5]     [6] In analyzing whether qualified immunity 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
applies, we first determine if the facts, taken in the light
most favorable to the party asserting injury, showed that the     [10] In Connick, the Court discussed several facts on which
official's conduct violated a constitutional right. See Scott v. it relied in analyzing whether speech “touched upon a matter
Harris, 550 U.S. 372, 377–78, 127 S.Ct. 1769, 1774–75, 167       of public concern.” Id. at 149, 103 S.Ct. at 1691. These factors
L.Ed.2d 686 (2007) (noting that, when reviewing ruling on        included:
an official's motion for summary judgment claiming qualified
immunity, the court usually adopts the plaintiff's version of        • whether the speech was merely an extension of an
the facts). If the facts as alleged constitute such a violation,        employment dispute; 5
we consider whether the right was clearly established in
light of the specific context of the case. Id. 127 S.Ct. at
1774; Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.            • whether the speech was focused on “gather[ing]
3034, 3039, 97 L.Ed.2d 523 (1987). The right was “clearly               ammunition for another round of controversy” with the
established” if the contours of the law at the time of the              employee's superiors; 6
conduct at issue gave fair warning that such conduct would
violate the employee's constitutional rights. See Hope v.            • whether the speech occurred at work or on the speaker's
Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 2516, 153 L.Ed.2d            own time and outside of the working areas of the
666 (2002) (citing *815 United States v. Lanier, 520 U.S.               office; 7
259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)); Saucier v.
Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156, 150 L.Ed.2d           • whether the speech impeded the ability of the speaker or
272 (2001) (“The relevant, dispositive inquiry in determining          other employees to perform their duties; 8
whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful         • whether the employee sought to inform the public that
in the situation he confronted.”); Eastland County Coop.              the employer “was not discharging its governmental
Dispatch v. Poyner, 64 S.W.3d 182, 195–96 (Tex.App.-                  responsibilities in the investigation and prosecution of
Eastland 2001, pet. denied) (applying Saucier ).                       criminal cases”; 9 and

                                                                  • whether the employee “[sought] to bring to light actual or
1. Claims Arising from Alleged Violations of Perry's First           potential *816 wrongdoing or breach of public trust”
Amendment Rights                                                     on the part of superiors. 10
 [7] [8] [9] Since 1968, courts have followed the Pickering Although these factors are not a general standard against
balancing test to determine if the speech of a public employee which statements must be judged, they illustrate the
is protected by the First Amendment. Pickering v. Bd. of       application of the “content-form-context” test required by
Educ. of Twp. High Sch. Dist. 205, Will County, Ill., 391      Pickering. See id. at 147, 103 S.Ct. at 1690.
U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). To apply
the Pickering test in determining whether a public employer    In 2006, the United States Supreme Court decided Garcetti
unconstitutionally penalized an employee for engaging in       v. Ceballos, in which it further refined the First Amendment
protected speech, we balance (a) the interest of the employee, balancing test applicable to governmental employees. 547



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Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). As the                as mentally unstable, homeless people as ‘criminals,’ and
Fifth Circuit Court of Appeals explained, Garcetti “added a             children with problems as ‘freaks.’ ” Id. at 500 n. 9.
threshold layer” to the Pickering/Connick analysis. Davis v.
McKinney, 518 F.3d 304, 312 (5th Cir.2008). 11 In Garcetti,            On appeal, the court held that the statements at the
a supervising district attorney was disciplined after writing          accident scene were made pursuant to the officer's
a memorandum that his employer considered inflammatory.                employment responsibilities, and thus, were not subject
Garcetti, 547 U.S. at 420–23, 126 S.Ct. at 1959–61. The                to First Amendment protection. Id. at 498. As the court
Court explained that the employee wrote the memorandum                 explained, “the fact that [the police officer] performed his job
“as a prosecutor fulfilling a responsibility to advise his             incorrectly, in an unauthorized manner, or in contravention of
supervisor about how best to proceed with a pending case.”             the wishes of his superiors does not convert his statement ...
Id. at 421, 126 S.Ct. at 1960. Significantly, the Court held that,     into protected citizen speech.” Id. at 498–99. Although the
as a threshold matter, employees are not speaking as citizens          court did not determine whether the officer acted pursuant
for First Amendment purposes when they speak “pursuant to              to his professional duties in writing the magazine articles, it
their official duties.” Id. Thus, under Garcetti, the reviewing        held that the articles were unprotected under the Pickering
court must shift its initial focus “from the content of the            test in any event because they brought “ ‘the mission
speech to the role the speaker occupied when he said it.”              of the [police department] and the professionalism of its
Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th           officers into serious disrepute,’ ” thereby undermining citizen
Cir.2007) (per curiam).                                                confidence in the department and impairing the performance
                                                                       of its functions. Id. at 500–01 (quoting City of San Diego v.
 [11]    [12] In sum, the inquiry regarding whether                  a Roe, 543 U.S. 77, 81, 125 S.Ct. 521, 524, 160 L.Ed.2d 410
governmental employee's speech is constitutionally protected           (2004)). 13 In reaching this conclusion, the court emphasized
now involves three considerations. First, we must determine            that it was “mindful of the paramilitary structure of the police
whether the employee's speech was made pursuant to his or              department and the greater latitude given their decisions
her official duties. Davis, 518 F.3d at 312. 12 If so, then the        regarding discipline and personnel regulations.” Id. at 501.
speech is not protected by the First Amendment, because
“[r]estricting speech that owes its existence to a public
                                                                        a. Causing Gang–Related Information to be Posted on
employee's professional responsibilities does not infringe
                                                                        CLEO
any liberties the employee might have enjoyed as a private
                                                                         [13] In their first issue, appellants contend that the trial
citizen.” Garcetti, 547 U.S. at 421–22, 126 S.Ct. at 1960.
                                                                        court erred in denying their motion for qualified immunity
Second, if the speaker did not engage in the speech pursuant
                                                                        to Perry's claims arising from his release of gang-related
to official duties, then we must determine whether the speech
                                                                        information for posting to the CLEO website. According to
touched upon a matter of public concern. Davis, 518 F.3d at
                                                                        Perry, this speech was protected by the First Amendment,
312. Third, if the speech does pertain to a matter of public
                                                                        and thus, appellants violated his constitutional rights by
concern, we apply the Pickering/Connick test to balance
                                                                        subjecting him to employment discipline for engaging in this
the employee's interest in expressing his concerns with the
                                                                        speech. Appellants assert that this speech is not protected
governmental employer's interest in performing its services
                                                                        under Garcetti because it relates to Perry's employment. We
efficiently. Id.
                                                                        agree.

Subsequent cases have further clarified Garcetti's effect on
                                                                        Although the parties have not identified the statement in
the Pickering/Connick test. For example, in Nixon v. City of
                                                                        the record and we do not know its exact content, Perry's
 *817 Houston, the Fifth Circuit Court of Appeals considered
                                                                        own characterizations of the statement and the context in
a police officer's statements to the media criticizing, among
                                                                        which it was made place it firmly within the scope of his
other things, his employer's high-speed pursuit policy. 511
                                                                        employment responsibilities. For example, in his petition,
F.3d 494, 496–97 (5th Cir.2007). Some of the statements were
                                                                        Perry repeatedly states that he was “retaliated against for
made at an accident scene while the officer was in uniform
                                                                        performing [his] job.” See, e.g., Pl.'s Seventh Am. Pet., ¶
and on duty; others appeared in magazine articles written by
                                                                        17 (“Because [Perry] sought to properly perform his job,
the officer. Id. In the articles, the officer also “characterized
                                                                        including making relevant and material communication with
inner-city minority residents as ‘rats,’ women with cats
                                                                        appropriate officials, [Perry] was the target of retaliation



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                10
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

by [appellants].”). Activities undertaken in the course of         Because private citizens do not have a right to post gang-
performing one's job, even if unauthorized, are conducted          related information to CLEO, there is “no relevant analogue
pursuant to official duties. Nixon, 511 F.3d at 497–99 (citing     to speech by citizens who are not government employees.”
Williams, 480 F.3d at 693).                                        Garcetti, 547 U.S. at 424, 126 S.Ct. at 1961. This assessment
                                                                   is unchanged by the fact that Perry released information
We further note that CLEO can be accessed only by                  to another governmental employee for posting to the site,
law enforcement personnel *818 who have been given                 thereby accomplishing indirectly what he had been denied
passwords, and Perry could not obtain a password without a         permission to do directly. Appellants produced evidence that
superior's authorization. He previously sought and was denied      Perry's conduct was insubordinate in that it circumvented
permission to obtain a password to access CLEO directly.           their decision to refuse authorization for him to access CLEO
Moreover, the summary-judgment evidence includes Perry's           directly. In addition, they produced uncontroverted evidence
testimony that the speech at issue was related to his position     that Perry's conduct generated ill-will and threatened to
as a gang officer performing an investigation as provided in       disrupt the school district's normal functioning on the days
his job description:                                               identified by Perry as posing an increased risk for gang
                                                                   violence.
  If you look at my job description for the gang officer, it
  specifically says that I am to deal with other agencies. So,     In his response to the motion for summary judgment,
  did I have prior—I already had prior permission to—to deal       Perry stated that he released information for posting on the
  with other agencies. It was part of my job. It was part of       CLEO website “as a concerned citizen who is concerned
  what I did.                                                      not only about the public welfare, but also as a citizen
                                                                   concerned about the safety of other law enforcement
                                ...
                                                                   personnel.” 15 This statement is insufficient *819 to bring
  The event [i.e., the gang violence expected in May 2005]         the communication at issue—i.e., statements by a gang
  was something I had heard about. I was in the investigation      officer to other law enforcement personnel regarding his
  stage. If you read the content of what I sent out, it simply     investigation of gang-related activity—within the protection
  was asking for information.                                      of the First Amendment. See Davis v. Ector County, Tex., 40
                                                                   F.3d 777, 782 (5th Cir.1994) (“[A] proper inquiry does not
                                ...                                elevate motive to a determinative factor; instead, we are to
                                                                   examine the form, content, and context of the statement.”).
  Again, my job description and—and what I understand my
                                                                   Given the forum in which the speech occurred, Perry's
  —my job to be and what the policy says is that I—if I
                                                                   inability to access the website directly without his supervisor's
  had evidence of a specific incident then I need to make
                                                                   authorization, the particularized roles of the speaker and the
  that appropriate—to make that known. I was gathering
                                                                   audience, and the content of the speech as described by
  that inform—all I had was—was minor information at this
                                                                   Perry, we conclude that his disclosure of information for
  time when I sent that out, and I was looking for more
                                                                   posting to the CLEO website was performed pursuant to
  confirmation. So, do I—did I feel it was necessary [to
                                                                   his responsibilities as a gang officer, and as such, is not
  obtain permission before releasing the information]? No, I
                                                                   protected. We therefore agree with appellants' contention that
  was doing what I was supposed to be doing in that I was
                                                                   this speech was not protected by the First Amendment, and we
  trying to gather information to see how valid what I had
                                                                   sustain their first issue as it pertains to this communication.
  heard from another source and what I had been hearing in
  the district was.
                                                                   b. Reporting Appellants' Allegedly Unlawful Conduct to
According to his own testimony, Perry was investigating
                                                                   the Harris County District Attorney
gang activity and requesting confirmation of information he
                                                                   In the remainder of their first issue, appellants contend
learned in his investigation. Although a job description alone
                                                                   the trial court erred in denying them qualified immunity
is not dispositive of the scope of an employee's duties, Perry's
                                                                   from Perry's claims arising from his report to the Harris
understanding of his job responsibilities is supported by AISD
                                                                   County District Attorney that appellants unlawfully removed
policies included in the summary-judgment record. 14               a citation from Perry's citation book. Again, Garcetti
                                                                   dictates that we begin our analysis by determining if Perry



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Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

engaged in the speech at issue pursuant to his employment             prosecution of criminal cases” is a matter of public concern);
responsibilities.                                                     id. (public has an interest in speech intended “to bring to light
                                                                      actual or potential wrongdoing or breach of public trust” on
Because Perry is a police officer and his speech consisted            the part of public employees); Brawner v. City of Richardson,
of reporting his suspicions of unlawful activity, appellants          Tex., 855 F.2d 187, 191–92 (5th Cir.1988) (“The disclosure
contend that Perry engaged in this speech pursuant to                 of misbehavior by public officials is a matter of public interest
his employment. In support of this argument, appellants               and therefore deserves constitutional protection, especially
emphasize that they were accused of unlawfully removing a             when it concerns the operation of a police department.”)
citation. They contend that Perry “only had the authority to          (emphasis added, footnote omitted). We therefore conclude,
write tickets because he was a police officer; his reporting of       as a matter of law, that the speech at issue addressed a matter
the removal of a ticket, therefore, is necessarily related to [his]   of public concern.
employment as a police officer.”
                                                                       [16] Finally, we must balance (a) the interests of Perry
 [14] This argument is without merit. The speech at issue             and the general public in allowing Perry to participate in
consists of Perry's report to the district attorneys' office          speech on this issue, and (b) AISD police department's
alleging that appellants unlawfully tampered with an existing         legitimate purpose in “promot[ing] efficiency and integrity
government record; the identity of the person who created the         in the discharge of official duties,” 16 and maintaining “
record is irrelevant.
                                                                      ‘proper discipline in the public service.’ ” 17 “This involves
                                                                      whether the speech: (1) was likely to generate controversy and
Appellants also contend that this speech is unprotected
                                                                      disruption, (2) impeded the department's general performance
pursuant to Garcetti because Perry communicated his
                                                                      and operation, and (3) affected working relationships
allegations to the district attorney's office while at work
                                                                      necessary to the department's proper functioning.” Brawner,
and in the course of performing his duties. Perry, however,
                                                                      855 F.2d at 192. Significantly, however, the absence of
testified without contradiction that he communicated with
                                                                      protection for the kind of speech at issue here would
the district attorney's office via cell phone, and did not
                                                                      undermine rather than promote efficiency and integrity.
recall using the office telephone for that purpose. Because
                                                                      “[I]f the allegations of internal misconduct are indeed true,
appellants' argument relies on facts that are not established
                                                                      [Perry's] statements could not have adversely affected the
in the record, it cannot support reversal. See Scott, 550 U.S.
                                                                      proper functioning of the department since the statements
at 379–81, 127 S.Ct. at 1775–76; TEX.R. CIV. P. 166a(c);
                                                                      were made for the very reason that the department was not
Green v. Alford, 274 S.W.3d 5, 17 (Tex.App.-Houston [14th
                                                                      functioning properly due to corruption.” Id. On this record,
Dist.] 2008, no pet. h.) (op. on en banc reh'g) (noting
                                                                      the public's interest in Perry's speech outweighs the legitimate
that an appellate court will reverse the trial court's denial
                                                                      interests of his governmental employer; thus, application of
of a qualified-immunity summary-judgment motion “only
                                                                      the Pickering/ Connick test leads us to conclude that Perry's
if the evidence conclusively proves facts establishing his
                                                                      speech to the district attorney's office was protected by the
entitlement to official immunity as a matter of law”).
                                                                      First Amendment.

 [15] Having concluded that Perry was not acting pursuant
                                                                       [17] Appellants contend that they nevertheless are entitled
to his employment responsibilities when reporting his
                                                                      to qualified immunity because they did not violate a clearly
suspicions of misconduct to the district attorney's office, we
                                                                      established right protecting Perry's speech. To be considered
proceed to the Pickering/Connick test and determine whether
                                                                      clearly established, “the contours of the right must be
the speech addressed a matter of public interest. Some issues
                                                                      sufficiently clear that a reasonable official would understand
are inherently subjects of public concern. *820 Connick, 461
                                                                      that what he is doing violates that right.” Anderson, 483 U.S.
U.S. at 148, 103 S.Ct. at 1691 n. 8 (racial discrimination)
                                                                      at 640, 107 S.Ct. at 3039. According to appellants, “[t]he act
(citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410,
                                                                      in question in this case, disciplining a subordinate employee
415–16, 99 S.Ct. 693, 696–97, 58 L.Ed.2d 619 (1979)). The
                                                                      for violating a policy or procedure, does not constitute
report of unlawful conduct by police officers is one such
                                                                      a clearly established violation of [Perry's] constitutional
issue. Id. at 148, 103 S.Ct. at 1690–91 (communications to
                                                                      rights.”
inform the public that the employer “was not discharging
its governmental responsibilities in the investigation and



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Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

At the time of these events, however, it was well-established      of section 554.002 among the employee rights and privileges
that a legitimate report of unlawful police conduct is protected   enumerated in its printed policies.
by the First Amendment. See, e.g., Davis v. Ector County,
Tex., 40 F.3d 777, 782 (5th Cir.1994); Brawner, 855 F.2d           Because Turner and Bonaparte failed to demonstrate their
at 192; Lott v. Andrews Ctr., 259 F.Supp.2d 564, 568               entitlement to official immunity for Perry's claims arising
(E.D.Tex.2003) (filing a legitimate criminal complaint with        from his report of appellants' suspected misconduct, we
law enforcement officials constitutes an exercise of the           overrule the remainder of appellants' first issue as it pertains
First Amendment right); see also *821 Wal–Mart Stores,             to this speech.
Inc. v. Rodriguez, 92 S.W.3d 502, 507 (Tex.2002) (“A
citizen has a clear legal right to report criminal misconduct
to authorities....”); Tex. Dep't of Transp. v. Needham, 82         2. Claims Arising from Alleged Violations of Fourteenth
S.W.3d 314, 320–21 (Tex.2002) (clarifying that a report            Amendment Rights
of an alleged violation of law may be in good faith even           Appellants next challenge the trial court's failure to grant
though incorrect, if a reasonable person with the employee's       summary judgment against Perry on his claim that appellants
level of training and experience would also have believed          took adverse employment action against him in violation of
that a violation had occurred). The only policy identified by      his Fourteenth Amendment right to due process. We begin
appellants which such speech could have violated was the           our analysis by determining whether Perry was deprived of a
policy communicated to Perry by Turner on September 29,            protected interest, and, if so, what process was his due. See
2005: “You are notified by receipt of this memorandum that         Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct.
you are required to contact an AISD Police Supervisor prior        1148, 1154, 71 L.Ed.2d 265 (1982); Univ. of Tex. Med. Sch.
                                                                   at *822 Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995).
to contacting any [assistant district attorney] for charges.” 18

                                                                    [19]     [20] A property interest protected by procedural
 [18] Such a policy cannot be applied lawfully to authorize
                                                                   due process arises where an individual has a legitimate
adverse employment action against a public employee
                                                                   claim of entitlement that is created, supported, or secured
“who in good faith reports a violation of law by the
                                                                   by rules or mutually explicit understandings. Alford v. City
employing governmental entity or another public employee
                                                                   of Dallas, 738 S.W.2d 312, 316 (Tex.App.-Dallas 1987, no
to an appropriate law enforcement authority.” See TEX.
                                                                   writ). Property interests also can be created by state law. Town
GOV'T CODE ANN. § 554.002(a) (Vernon 2004). 19 To                  of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756, 125
the contrary, section 554.002 is intended to (1) enhance           S.Ct. 2796, 2803, 162 L.Ed.2d 658 (2005). In their motion for
openness in government by protecting public employees              traditional summary judgment regarding Perry's Fourteenth
who inform proper authorities of legal violations, and (2)         Amendment claim for violation of his due process rights,
secure governmental compliance with the law on the part of         Turner and Bonaparte asserted that Perry was an at-will
those who direct and conduct governmental affairs. Town of         employee with no property interest in continued employment.
Flower Mound v. Teague, 111 S.W.3d 742, 752 (Tex.App.-             Perry responded that he had a protected property interest
Fort Worth 2003, pet. denied) (op. on reh'g) (citing Upton         in continued employment pursuant to Texas Government
County v. Brown, 960 S.W.2d 808, 817 (Tex.App.-El Paso             Code sections 614.021–.023, which were expressly adopted
1997, no pet.) and Tarrant County v. Bivins, 936 S.W.2d 419,       in AISD's policy manual and which Turner and Bonaparte had
421 (Tex.App.-Fort Worth 1996, no writ)). Law enforcement          previously applied to Perry. See TEX. GOV'T CODE ANN.
officers are not exempted from the statute's protections.          §§ 614.021–.023 (Vernon 2004 and Supp.2008).
See TEX. GOV'T CODE ANN. § 554.002; Harris County
Precinct Four Constable Dep't v. Grabowski, 922 S.W.2d              [21] Section 614.022 of the Texas Government Code,
954, 955–56 (Tex.1996) (per curiam); Teague, 111 S.W.3d at         entitled “Complaint to be in Writing and Signed by
752–754; see also United Mine Workers of Am., Dist. 12 v.          Complainant,” provides, “To be considered by the head of a
Ill. State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 356,19      state agency or by the head of a fire department or local law
L.Ed.2d 426 (1967) ( “The First Amendment would, however,          enforcement agency, the complaint must be: (1) in writing;
be a hollow promise if it left government free to destroy          and (2) signed by the person making the complaint.” Id. §
or erode its guarantees by indirect restraints....”). Moreover,    614.022. Section 614.023, entitled “Copy of Complaint to be
AISD expressly incorporated the “whistleblower protection”         Given to Officer or Employee,” further provides:



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            13
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

                                                                  entitled. We cannot agree that this substitute procedure
  (a) A copy of a signed complaint against a law enforcement      protected Perry's due process rights. By enacting sections
     officer of this state ... or peace officer appointed or      614.021–023, of the Government Code, the State provided
     employed by a political subdivision of this state shall be   covered employees with procedural safeguards to reduce the
     given to the officer or employee within a reasonable time    risk that adverse employment actions would be based on
     after the complaint is filed.                                unsubstantiated complaints. Moreover, the State determined
                                                                  that the value of these protections outweighs the fiscal and
  (b) Disciplinary action may not be taken against the officer
                                                                  administrative burdens incurred by complying with statutory
     or employee unless a copy of the signed complaint is
                                                                  requirements. In contrast, the summary-judgment evidence
     given to the officer or employee.
                                                                  demonstrates that the procedures appellants followed
  (c) In addition to the requirement of Subsection (b), the       impaired Perry's ability to investigate or defend against the
     officer or employee may not be indefinitely suspended or     complaints made against him.
     terminated from employment based on the subject matter
     of the complaint unless:                                     Rather than requiring complaints of alleged misconduct to
                                                                  be signed by the victim, appellants accepted and acted upon
    (1) the complaint is investigated; and                        complaints that did not identify the true complainant. Instead,
                                                                  these complaints expressed the conclusions of other peace
    (2) there is evidence to prove the allegation of              officers based on general allegations of unidentified people.
       misconduct.                                                For example, Officer Wayne Cox wrote,

Id. § 614.023. 20 We previously construed these statutes and                  In speaking with fellow officers, who
concluded that the complaint must be in writing and signed                    wish to remain anonymous, I feel that
by the person who claims to be the victim of misconduct.                      Officer Troy Perry is threatening to
Guthery v. Taylor, 112 S.W.3d 715, 721–23 (Tex.App.-                          undermine your authority as chief and
Houston [14th Dist.] 2003, no pet.). Here, state law and                      erode the good order and discipline of
AISD policy 21 created a property interest: in the absence                    the department. I respectfully request
of complaints that were signed, delivered, investigated, and                  that he not be allow[ed] to interact
supported by evidence, Perry had a legitimate expectation of                  with students at the Elsik campus as
continued employment secured by sections 614.021–023 of                       he tends to incite or inflame already
the Texas Government Code.                                                    volatile situations by his demeanor.... I
                                                                              opine that Officer Perry should never
 *823 [22]        [23] Having determined that Perry had a                     have any contact with the public as he
protected property interest, we must now identify the process                 is the antithesis of a professional police
required to protect that interest. Generally, due process is                  officer.
measured by a flexible standard that depends on the practical
                                                               Cox's partner, Officer William Britton, similarly wrote,
requirements of the circumstances. Mathews v. Eldridge,
424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18                        It has been brought to my attention
(1976). This standard includes three factors: (1) the private              by my fellow officers that Officer
interest that will be affected by the official action; (2) the             Perry has been speaking ill of the
risk of an erroneous deprivation of such interest through                  department. I have been with Officer
the procedures used, and the probable value, if any, of                    Perry on several occassions [sic] at
additional or substitute procedural safeguards; and (3) the                Elsik and I feel that his actions with
government's interest, including the function involved and                 the students at Elsik are not that
the fiscal and administrative burdens that the additional or               of a professional police officer. I
substitute procedural requirement would entail. Id. at 335, 96             have observed him shout, yell and
S.Ct. at 903.                                                              degrade students with whom he was
                                                                              interacting.
 [24]   According to appellants, the grievance process
provided Perry with any due process to which he was



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           14
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

                                                                   the hesitation that could arise from having their judgment
Officer Karen Meier emailed Bonaparte that the “morale             continually questioned by extended litigation.” Ballantyne v.
in the department and overall tension level among officers         Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex.2004).
is very strained” and “most of this could be avoided if            It is an affirmative defense barring state law claims against
Officer Perry could keep whatever problems he has with the         a governmental employee's performance (1) of discretionary
department and supervisors to himself and not drag everyone        duties, (2) within the scope of the employee's authority, (3)
into it.”                                                          provided that the employee acts in good faith. Id. at 422; Univ.
                                                                   of Houston v. Clark, 38 S.W.3d 578, 580–81 (Tex.2000); City
Deposition testimony demonstrated further problems with            of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994).
the procedure followed by appellants. Benitez testified that       The doctrine is based on the theory that the threat of liability
one of her job responsibilities requires her to investigate        will make public officials unduly timid in carrying out their
whether accusations are verifiable and truthful. Nevertheless,     official duties, and effective government will be promoted
there was no investigation concerning Perry's release of           if officials are freed of the costs of vexatious and frivolous
information for posting on the CLEO website, and she does          litigation. Westfall v. Erwin, 484 U.S. 292, 295, 108 S.Ct.
not know that any AISD employee, other than law *824               580, 583, 98 L.Ed.2d 619 (1988), superseded by statute on
enforcement personnel, saw the posting. She further agreed         other grounds, 28 U.S.C. §§ 2671–2679 (1989 Supp.), as
that there is “nothing in writing, no dates, no names and          recognized in United States v. Smith, 499 U.S. 160, 111 S.Ct.
no way to investigate” the allegations against Perry. Benitez      1180, 113 L.Ed.2d 134 (1991). Thus, immunity from state-
conceded that she did not develop enough specific data to          law claims is intended to insulate essential governmental
allow Perry to investigate “and give his side of the case,” and    functions from the harassment of litigation and remove the
stated her opinion that Perry could be terminated “for any         deterrent to public service posed by the threat of heavy
reason or no reason.” Rather than investigating, Benitez relied    personal liability for errors in judgment. See Ballantyne,
on statements concerning unidentified students, including           *825 144 S.W.3d at 424; Kassen v. Hatley, 887 S.W.2d 4,
statements from Turner and Bonaparte. Turner, however,             8 (Tex.1994).
testified that he does not remember any specific incident
in which he observed Perry behaving inappropriately with            [29] On appeal, the parties have focused their arguments
students, and Bonaparte asserted his rights under the Fifth        on the element of good faith. To determine whether a
Amendment and refused to answer questions concerning this          public official has acted in good faith, we look to the
suit. 22                                                           objective standard adopted in Chambers, 883 S.W.2d at 656.
                                                                   The summary-judgment movant must produce evidence that
In sum, appellants' failure to follow statutory procedure          a reasonably prudent official, under the same or similar
magnified the risk that adverse employment action would be         circumstances, could have believed that his conduct was
taken based on unsubstantiated complaints. Cf. TEX. GOV'T          justified based on the information he possessed when the
CODE ANN. §§ 614.022, 614.023 23 (requiring complaints             conduct occurred. Wadewitz v. Montgomery, 951 S.W.2d 464,
against police officers to be written, signed, investigated, and   467 (Tex.1997).
supported by evidence if they are used as the basis for adverse
employment action). On this record, we cannot conclude              [30] Appellants, however, failed to produce evidence that a
that the trial court erred in denying appellants' motion for       reasonable officer in the same or similar circumstances could
summary judgment regarding Perry's Fourteenth Amendment            have believed that statements such as those made by Turner
claims.                                                            and Bonaparte were justified. In their affidavits in support of
                                                                   summary judgment, both Turner and Bonaparte stated:

B. Official Immunity                                             It is within my job duties to report to ... administration,
 [25]    [26]    [27]     [28] In their second issue, appellants and specifically the Human Resources Department, what I
argue that they are entitled to official immunity from Perry's   believe, using my discretion, to be relevant in determining
                                                                 a subordinate's employment or disciplinary future.
claims of slander, 24 and thus, the trial court erred in failing
to grant summary judgment on this basis. Official immunity       This was the case when reporting to the administration
under common law is based on the need for public servants        regarding Troy Perry and his job performance. I made the
“to act in the public interest with confidence and without       determination, using my discretion and judgment, as to


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            15
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

    what would be relevant to the administration in making a
                                                                           Because Turner and Bonaparte failed to produce evidence
    decision as to Troy Perry's employment with Alief or any
                                                                           that a reasonably prudent officer, in the same or similar
    disciplinary measure taken. I performed these discretionary
                                                                           circumstances, could have believed that their representations
    duties believing that my reporting to the administration as
                                                                           of Perry's conduct were justified, the trial court properly
    to Troy Perry was in the best interest of the District and
                                                                           denied summary judgment on this ground. We therefore
    believing what I reported to be true.
                                                                           overrule appellants' second issue.
    I received reports from various administrators within
    the District that Troy Perry's behavior, with respect to
    his interactions with students, parents, and faculty, was
                                                                                                   V. CONCLUSION
    inappropriate. I used my judgment and found these reports
    to be reliable and in the interest of Alief and its students and       We conclude that Perry did not engage in protected speech
    faculty, I reported my findings as well as my observations             when he released information for publication to a law-
    to ... Human Resources. This was done without malice....               enforcement website. Consequently, appellants are entitled
                                                                           to qualified immunity against Perry's claims that they
    It is not my understanding that my issuance of disciplinary            violated his First Amendment rights in connection with this
    measures, such as my issuance of a verbal or written                   communication. We therefore reverse the trial court's order
    directive; the assignment of a growth plan; or even                    and render judgment *826 that appellants are immune from
    recommendation of termination, for violation of District or            liability arising from adverse employment actions taken in
    department policy or procedures, in any way violates the               response to Perry's release of information for publication to
    Constitutional rights of any officers under my supervision.            the CLEO website. In all other respects, we affirm the trial
                                                                           court's order denying summary judgment, and we remand the
In effect, each appellant states that he felt justified in
                                                                           case for further proceedings consistent with this opinion.
making the statements and reports at issue regarding Perry's
conduct; however, in analyzing claims of official immunity,
“consideration of subjective evidence of the good faith
                                                                           Parallel Citations
element of official immunity is inappropriate.” Ballantyne,
144 S.W.3d at 419 (emphasis added).                                        243 Ed. Law Rep. 933


Footnotes
1        Perry attributes the delay in entering the charges into the computer system to school closures in connection with Hurricane Rita.
2        Perry filed another grievance on November 28, 2005, and an unsuccessful grievance hearing was held on January 19, 2006.
3        On appeal, the parties do not address Perry's claim for intentional infliction of emotional distress or appellants' contention that Perry
         failed to exhaust administrative remedies.
4        The plurality opinion may be taken to state the holding of the Court. As J. Souter explained in a concurring opinion, a majority
         of the Court agreed that, in the absence of pretext, employers whose conduct survives the plurality's reasonableness test cannot be
         held constitutionally liable. Waters, 511 U.S. at 685–86, 114 S.Ct. at 1893 (Souter, J., concurring). A different majority agreed that
         employers whose conduct fails the plurality's reasonableness test have violated the Free Speech Clause. Id.
5        Id. at 148, 103 S.Ct. at 1690.
6        Id. at 148, 103 S.Ct. at 1691.
7        Id. at 152–53, 103 S.Ct. at 1693.
8        Id. at 151, 103 S.Ct. at 1692.
9        Id. at 148, 103 S.Ct. at 1690–91.
10       Id.
11       Although the events in this case predate Garcetti, we apply its threshold requirement when determining whether Perry engaged in
         protected speech. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993) (explaining that
         the Supreme Court's announcement of a rule of federal law applies to all open cases and events, regardless of whether such events
         predate or postdate the Court's announcement of the rule). We do not, however, consider Garcetti as part of the law that was “clearly
         established” at the time appellants are alleged to have violated Perry's constitutional rights. See Hope, 536 U.S. at 741, 122 S.Ct. at
         2516 (describing the test for ascertaining the “clearly established” law at the time of the alleged violations).



                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        16
Turner v. Perry, 278 S.W.3d 806 (2009)
243 Ed. Law Rep. 933

12     That the employee's speech concerns facts learned while working is not dispositive. See Charles v. Grief, 522 F.3d 508, 513–14 (5th
       Cir.2008) (Texas Lottery Commission employee's allegations of Commission misconduct, made to members of the Texas legislature
       with oversight over the Commission, is protected even though the speech concerned facts learned at work).
13     In City of San Diego, the Supreme Court held that the police department had a legitimate and substantial interest in preventing one
       of its officers from selling pornographic videos of himself on eBay where the officer identified himself as a law enforcement officer,
       appeared in uniform, and performed indecent acts. Nixon, 511 F.3d at 500–01 (citing City of San Diego, 543 U.S. at 81, 125 S.Ct. 521).
14     For example, a policy entitled “Alief ISD Policy CKE (Legal)” states that a “peace officer may provide assistance to another law
       enforcement agency....”
15     In Perry's Seventh Amended Petition, however, he alleged that he “was reprimanded even though the AISD Gang Officer's stated
       responsibilities included protecting AISD students and personnel, and the responsibility to work with other agencies to track, monitor
       and document criminal gang sets, affiliates and associates.”
16     Arnett v. Kennedy, 416 U.S. 134, 168, 94 S.Ct. 1633, 1651, 40 L.Ed.2d 15 (1974) (Powell, J., concurring).
17     Connick, 461 U.S. at 150–51, 103 S.Ct. at 1692 (quoting Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 384, 27 L.Ed. 232 (1882)).
18     During his deposition, Turner testified that it was part of AISD police department's “procedure” to obtain prior approval from a
       supervisor before disseminating “juvenile information and information that could cause alarm.” Turner denied that this was a “policy.”
19     An appropriate law enforcement authority includes governmental entities that the employee in good faith believes are authorized to
       investigate or prosecute a violation of criminal law. Id. § 554.002(b)(2).
20     Act of May 16, 1969, 61st Leg., R.S., ch. 407, § 1, 1969 Tex. Gen. Laws 1333, 1333–34 (formerly codified as Vernon's Ann. Civ.
       St. art. 6252–20, eff. June 2, 1969), recodified by Act of May 4, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 678–
       79, amended by Act of May 19, 2005, 79th Leg., R.S., ch. 507, § 1, 2005 Tex. Gen. Laws 1394, 1394, eff. Sept. 1, 2005.
21     See County of Dallas v. Wiland, 216 S.W.3d 344, 348 (Tex.2007) (stating that at-will employment of public employees may be
       modified by agreement with the employer, as in a personnel manual). Here, the AISD police force expressly adopted the state statutes
       as its own policy.
22     Cf. Fudge v. Haggar, 621 S.W.2d 196, 197–98 (Tex.App.-Texarkana 1981, writ ref'd n.r.e.) (holding that a written, signed complaint
       by an internal investigator concerning police officer's improper release of prisoner, supported by affidavits from “pretrial release
       employees,” fulfilled statutory requirements because “the entire investigation began within the police department”).
23     To the contrary, Benitez testified that she did not investigate the complaints.
24     Perry's slander claim is primarily based on appellants' representations that he engaged in “inappropriate interactions with students.”


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       17
Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                               Presumptions and Burden of Proof
                       827 S.W.2d 833                                     Party seeking mandamus relief had burden of
                   Supreme Court of Texas.                                providing not only a petition and affidavit, but
                                                                          also a statement of facts from evidentiary hearing
           Charles F. WALKER and Mary                                     that had been held. Rules App.Proc., Rule 121(a)
          Jeanette Walker et al., Relators,                               (2)(C, F).
                        v.
                                                                          20 Cases that cite this headnote
  The Honorable Anne PACKER, Judge, Respondent.

       No. C–9403. | Feb. 19, 1992. | Rehearing                     [3]   Mandamus
          Overruled May 6, 1992. | Dissenting                                Presumptions and Burden of Proof
         Opinion by Justice Gammage May 7, 1992.                          Plaintiffs bringing motion for leave to file
                                                                          petition for writ of mandamus arguing that trial
Parents of child born with brain damage, who had brought
                                                                          court clearly abused its discretion by refusing
action against obstetrician, hospital where child was born,
                                                                          to order defendant to produce documents from
and nurse attending at delivery, brought petition for writ of
                                                                          insurer's files and by ordering that portions of
mandamus arguing that the trial court abused its discretion
                                                                          other responsive documents be stricken failed to
by refusing to order hospital to produce documents from
                                                                          meet their burden of providing Court of Appeals
its insurer's files and by ordering that portions of other
                                                                          with record upon which they could establish
responsive documents be stricken. The Supreme Court,
                                                                          their right to mandamus relief; plaintiffs failed to
Phillips, C.J., held that: (1) plaintiffs had not presented
                                                                          provide Supreme Court with statement of facts
sufficient record to demonstrate that trial court clearly abused
                                                                          from evidentiary hearing. Rules App.Proc., Rule
its discretion in failing to grant plaintiffs requested discovery
                                                                          121(a)(2)(C, F).
from one of defendants, and (2) plaintiffs had adequate
remedy by way of appeal as to documents they sought from                  824 Cases that cite this headnote
nonparty for impeachment purposes.

Petition denied.                                                    [4]   Pretrial Procedure
                                                                              Request, Notice, or Motion and Response
Gonzalez, J., concurred with opinion.                                     or Objection
                                                                          Trial court erred in mechanically applying
Doggett, J., dissented with opinion in which Mauzy, J.,                   Russell decision, which disapproved of global
joined.                                                                   discovery of documents merely to impeach
                                                                          potential witness, to deny discovery of
Gammage, J., dissented with opinion.                                      documentary evidence by medical malpractice
                                                                          plaintiffs to impeach one of defendants' expert
                                                                          witnesses, a faculty member in obstetrics;
                                                                          plaintiffs presented to trial court evidence of
 West Headnotes (18)
                                                                          hospital's policy restricting faculty's freedom
                                                                          to testify for plaintiffs, raising the possibility
 [1]      Mandamus                                                        that the faculty member was biased, and
             Presumptions and Burden of Proof                             plaintiffs' request was narrowly tailored.
                                                                          Vernon's Ann.Texas Rules Civ.Proc., Rule 166b,
          Party seeking mandamus relief has burden of
                                                                          subd. 2, par. a; Rules of Civ.Evid., Rule 613(b).
          providing Supreme Court with sufficient record
          to establish right to mandamus relief.                          9 Cases that cite this headnote
          463 Cases that cite this headnote
                                                                    [5]   Mandamus
                                                                             Scope of Inquiry and Powers of Court
 [2]      Mandamus


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Walker v. Packer, 827 S.W.2d 833 (1992)


       Trial court clearly abuses its discretion,
       for purposes of mandamus, with respect to                       92 Cases that cite this headnote
       resolution of factual issues or matters committed
       to trial court's discretion, only if trial court could   [10]   Mandamus
       reasonably have reached only one decision;                         Remedy by Appeal or Writ of Error
       reviewing court may not substitute its judgment
                                                                       Mandamus will not issue where there is adequate
       for that of trial court.
                                                                       remedy by appeal.
       777 Cases that cite this headnote
                                                                       276 Cases that cite this headnote

 [6]   Mandamus
                                                                [11]   Mandamus
          Matters of Discretion
                                                                           Modification or Vacation of Judgment or
       On mandamus review of trial court's                             Order
       determination of legal principles, clear failure by
                                                                       Party seeking review of discovery order by
       trial court to analyze or apply the law correctly
                                                                       mandamus must demonstrate that the remedy
       will constitute abuse of discretion, and may
                                                                       offered by an ordinary appeal is inadequate.
       result in appellate reversal by extraordinary writ.
                                                                       24 Cases that cite this headnote
       1796 Cases that cite this headnote

                                                                [12]   Mandamus
 [7]   Mandamus
                                                                          Remedy by Appeal or Writ of Error
          Scope of Inquiry and Powers of Court
                                                                       Appellate remedy is not inadequate, for purposes
       On mandamus review of trial court's erroneous
                                                                       of mandamus, merely because it may involve
       denial of requested discovery in medical
                                                                       more expense or delay than obtaining an
       malpractice case on sole basis of Russell,
                                                                       extraordinary writ.
       Supreme Court would consider the trial court's
       decision as a legal conclusion to be reviewed                   135 Cases that cite this headnote
       with limited deference.

       20 Cases that cite this headnote                         [13]   Mandamus
                                                                           Modification or Vacation of Judgment or
                                                                       Order
 [8]   Mandamus
                                                                       Party will not have adequate remedy by way
          Proceedings in Civil Actions in General
                                                                       of appeal, for purposes of mandamus, when
       Trial court's erroneous denial of plaintiffs'
                                                                       appellate court would not be able to cure the trial
       requested discovery in medical malpractice case
                                                                       court's discovery error, which occurs when trial
       to impeach one of defendants' expert witnesses
                                                                       court erroneously orders disclosure of privileged
       on sole basis of Russell constituted clear abuse
                                                                       information which will materially affect the
       of discretion, for purposes of mandamus relief.
                                                                       rights of the aggrieved party.
       385 Cases that cite this headnote
                                                                       175 Cases that cite this headnote

 [9]   Mandamus
                                                                [14]   Mandamus
          Remedy by Appeal or Writ of Error
                                                                          Remedy by Appeal or Writ of Error
       Requirement that person seeking mandamus
                                                                       Appeal will not be an adequate remedy, for
       relief establish lack of adequate appellate remedy
                                                                       purposes of mandamus, where the party's ability
       is “fundamental tenet” of mandamus practice.
                                                                       to present viable claim or defense at trial is
                                                                       vitiated or severely compromised by trial court's



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Walker v. Packer, 827 S.W.2d 833 (1992)


        discovery error, but it is not enough to show                   mandamus is appropriate. Vernon's Ann.Texas
        merely the delay, inconvenience or expense of                   Rules Civ.Proc., Rule 166b, subd. 4.
        an appeal, rather, the relator must establish the
        effective denial of reasonable opportunity to                   18 Cases that cite this headnote
        develop the merits of his or her case.
                                                                [18]    Mandamus
        389 Cases that cite this headnote
                                                                            Modification or Vacation of Judgment or
                                                                        Order
 [15]   Mandamus                                                        Medical malpractice plaintiff seeking documents
            Modification or Vacation of Judgment or                     from defendant hospital to impeach one of
        Order                                                           defendant's expert witnesses had adequate
        When trial court imposes discovery sanctions                    remedy by appeal, and, thus, mandamus was
        which have effect of precluding decision                        inappropriate way to compel discovery, where
        on merits of party's claims, party's remedy                     the information was not privileged, burdensome
        by eventual appeal is inadequate, for                           or harassing, nor did it vitiate or severely
        purposes of mandamus, unless sanctions are                      compromise the plaintiffs' ability to present
        imposed simultaneously with rendition of final,                 a viable claim, the materials were considered
        appealable judgment.                                            below, and there was no reason why they would
                                                                        not be available on appeal.
        97 Cases that cite this headnote
                                                                        121 Cases that cite this headnote
 [16]   Mandamus
            Modification or Vacation of Judgment or
        Order
                                                               Attorneys and Law Firms
        Remedy by appeal may be inadequate, for
        purposes of mandamus, where trial court                *835 Les Weisbrod and Michael S. Box, Dallas, for relators.
        disallows discovery and missing discovery
        cannot be made part of appellate record, or trial      Philipa Remington, Stephen W. Johnson, James A. Williams,
        court after proper request refuses to make it          Kevin J. Keith, Martha L. Strother, Gary W. Sibley, Dallas
        part of record, and reviewing court is unable to       and Delmar L. Cain, Austin, for respondent.
        evaluate effect of trial court's error on the record
        before it.
                                                                                         OPINION
        45 Cases that cite this headnote
                                                               PHILLIPS, Chief Justice.
 [17]   Mandamus
                                                               This original mandamus action involves two pre-trial
           Proceedings in Civil Actions in General
                                                               discovery requests sought by *836 relators, plaintiffs in
        If trial court disallows discovery and missing         a medical malpractice lawsuit. The first discovery dispute
        discovery cannot be made part of appellate             involves documents which the plaintiffs seek from one of
        record, or trial court after proper request refuses    the defendants, while the second involves documents which
        to make it part of record, and reviewing court         they seek from a nonparty for impeachment purposes. As to
        is unable to evaluate effect of trial court's error    the first matter, we hold that relators have not presented a
        on record before it, court must carefully consider     sufficient record to demonstrate that the trial court clearly
        all relevant circumstances, such as claims and         abused its discretion in failing to grant them all requested
        defenses asserted, type of discovery sought,           relief. As to the second, we hold that relators have an adequate
        what it is intended to prove, and presence or          remedy by appeal. Thus, mandamus is inappropriate, and we
        lack of other discovery, to determine whether          deny the writ.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          3
Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                to what was requested in the request for production—that
                                                                is, writings, notes, and notations in the adjuster's file or
             The St. Paul and Aetna Records
                                                                attorney's file mentioning, alluding to, or making reference
Catherine Johanna Walker sustained brain damage at birth in     to the tape recorded statement of Nurse White.” At about
January 1983. In January 1985, her parents, Charles F. and      the same time, the Walkers also served on Aetna Casualty
Mary Jeanette Walker, sued Dr. Paul Crider, the obstetrician,   and Surety Company, St. Paul's insurer, an “Amended Notice
St. Paul Hospital, where Catherine was born, and Iris Jean      of Intention to Take Deposition Upon Written Questions
White, a nurse attending at the delivery.                       —Duces Tecum,” seeking, among other things, the same
                                                                documents. Aetna moved to quash the notice.
In August 1987, the Walkers served on St. Paul their third
request for production of documents pursuant to Tex.R.Civ.P.    The trial judge appointed a special master to review the
167. One request asked for:                                     Walkers' motion to compel and Aetna's motion to quash.
                                                                After an evidentiary hearing on September 5, 1989, the master
            Any and all writings, notes,                        prepared findings, which formed the basis for two extensive
            documents, letters, etc., concerning,               orders signed by the trial court on September 20, 1989. In the
            mentioning, alluding to, or making                  first order, the court found that the Walkers were “entitled
            reference to (either directly or                    to all documentation sought in [the request] from the files
            indirectly), the tape recorded                      of Defendant St. Paul or its attorney of record, but not from
            statement given by Nurse White to                   the files of Aetna Insurance Company, except as they may
            an Aetna adjuster, including but not                appear in the files of St. Paul or the attorneys of record of
            limited to any notes or entries in any              St. Paul.” The court also stated that it “has been advised that
            Aetna adjuster's file, any attorney's               St. Paul has supplied all documentation that is responsive to
            file, or any file or writing in possession          [the request], but that additional documentation will be made
            of any employee, representative or                  available *837 to the Court for in camera review.” The court
            agent of St. Paul Hospital. This request            therefore sustained the Walkers' motion to compel “to the
            is in reference to the tape recorded                extent that on Friday, September 8, 1989 the Special Master
            statement which you have been unable                will review in the Chambers of the 134th District Court the
            to locate, but which was previously                 relevant portions of the St. Paul files and their attorney [sic]
            requested....                                       files, which may be in response to Plaintiff's request....” The
                                                                court, however, did not order St. Paul to produce documents
St. Paul responded as follows:
                                                                from Aetna's files for in camera inspection. 2
            In an effort to respond to this request,
            this Defendant again checked with                   After the master's September 8 in camera inspection, the court
            all appropriate personnel and files                 ordered discovery of three additional documents from the
            at St. Paul Hospital and the law                    files of St. Paul and its attorneys, which it found “relate to
            firm of Bailey and Williams. No                     the matters sought in discovery and should be supplied after
            such statement or taped recording was               irrelevant portions of such documents are stricken.”
            found. For the third time the Aetna
            Casualty and Surety Company was                     After unsuccessfully seeking relief in the court of appeals,
            asked to check its records and files and            the Walkers moved for leave to file a petition for writ
            a partially transcribed statement was               of mandamus with this court, arguing that the trial court
            located, a copy of which is attached.               clearly abused its discretion by refusing to order St. Paul to
            No taped recording was located.                     produce the documents from Aetna's files and by ordering that
                                                                portions of the other responsive documents be stricken. The
Nearly two years later, the Walkers filed a motion to           Walkers contend that the order was a clear abuse of discretion
compel under Tex.R.Civ.P. 215, asserting that St. Paul          because St. Paul 1) never objected to the Walkers' request for
                                                                production, 2) had a superior right to the Walkers to compel
failed to respond completely to the request. 1 The Walkers
                                                                production of the documents in Aetna's possession, and 3)
complained that “St. Paul Hospital did not even respond
                                                                never asked that any parts of the documents be excised.



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Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                 overly broad” and that production would be “costly and
The record before us does not include the statement of           burdensome.”
facts from the evidentiary hearing on the Walkers' motion
to compel production. Without it, we cannot determine on       Two months later, in an unrelated lawsuit, the Walkers'
what basis the trial judge and the special master reached      counsel deposed Dr. Alvin L. Brekken, another obstetrics
their conclusions. Since we cannot assess whether or not       faculty member at the Center. Dr. Brekken testified that
the trial court's order was correct, we obviously cannot take  the obstetrics department's official policy, distributed in
the additional step of determining that the court's order, if  writing to all faculty members, requires a doctor to obtain
incorrect, constituted a clear abuse of discretion.            authorization from other faculty members before testifying
                                                               for any plaintiff in a medical malpractice case. Based on this
 [1] [2] [3] As the parties seeking relief, the Walkers had testimony, the Walkers sought a court order to depose Wagers
the burden of providing this Court with a sufficient record to and obtain the requested documents.
establish their right to mandamus relief. Since an evidentiary
hearing was held, the Walkers had the burden of providing      After reviewing the Gilstrap and Brekken depositions and
us not only a petition and affidavit, see Tex.R.App.P. 121(a)  pleadings of counsel, the trial court ordered the Center to
(2)(C) and (F), but also a statement of facts from the         produce the documents for in camera review by the special
hearing. See, e.g., Cameron County v. Hinojosa, 760 S.W.2d     master. Subsequently, in her September 20, 1989 order, the
742, 744 (Tex.App.—Corpus Christi 1988, orig. proceeding);     trial judge denied the discovery, stating in part:
Greenstein, Logan & Co. v. Burgess Mktg. Inc., 744 S.W.2d
170, 177 (Tex.App.—Waco 1987, writ denied); see also                        [S]uch requested discovery is
Western Casualty & Surety Co. v. Spears, 730 S.W.2d                         improper pursuant to the Rulings of
                                                                            the Supreme Court of Texas in Russell
821, 822 (Tex.App.—San Antonio 1987, orig. proceeding). 3
                                                                            v. Young [452 S.W.2d 434 (Tex.1970)
Having failed to meet this burden, the Walkers have not
                                                                            ], as the potential witness is not a
provided us with a record upon which they can establish their
                                                                            party to the suit and the records do
right to mandamus relief against St. Paul.
                                                                            not relate to the subject matter of
                                                                            the suit, but are sought solely for the
                                                                            purpose of impeachment, according to
               The Obstetrics Faculty Records                               the Plaintiffs' pleadings.

 [4] The second discovery dispute arises out of the Walkers'     Although noting that some of the documents “would be
attempt to secure documentary evidence to impeach one            relevant to this cause of action,” the court nevertheless denied
of the defendants' expert witnesses, Dr. Larry Gilstrap, a       discovery because “all such documents are controlled by the
faculty member in obstetrics at the University of Texas Health   Russell decision.”
Science Center at Dallas (“the Center”). Gilstrap testified at
his deposition that expert witness fees earned by obstetrics     In Russell, a party sought wholesale discovery of financial
faculty members are deposited into a “fund” in the obstetrics    records of a potential medical expert witness who was
“billing department”; that obstetrics faculty members get paid   not a party to the lawsuit. 4 The documents requested did
“indirectly” from this fund; that the fund is handled by Judy    not relate directly to the subject matter of the suit, but
Wagers, a Center employee; and that he was unaware of any        were sought solely in an attempt to impeach the potential
obstetrics department policy restricting faculty members from    witness by showing bias or prejudice. The credibility of the
testifying for plaintiffs in medical malpractice cases.          witness, however, had not yet been put in doubt. Under
                                                                 these circumstances, we held that the documents were not
 *838 Thereafter, the Walkers noticed Wagers' deposition,        discoverable, and we directed the trial court to vacate its order
requesting that she provide all documents regarding (1) the      allowing the requested discovery. 452 S.W.2d at 435. We
operation of the above-mentioned “fund” from 1985 to 1988;       reasoned that “[t]here is ... a limit beyond which pre-trial
and (2) limitations placed upon obstetrics faculty members       discovery should not be allowed.” Id. at 437.
relating to their testimony in medical malpractice cases. The
Center, on behalf of Wagers, moved to quash the notice,          The present case is distinguishable. Here, the Walkers
arguing that the request for documents was “vague and            presented to the trial court evidence of a specific circumstance


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Walker v. Packer, 827 S.W.2d 833 (1992)


—the Center's policy restricting the faculty's freedom to           court. See, e.g., Joachim v. Chambers, 815 S.W.2d 234,
testify for plaintiffs—raising the possibility that Dr. Gilstrap    237 (Tex.1991); Jampole v. Touchy, 673 S.W.2d 569, 574
is biased. Thus, the Walkers are not engaged in global              (Tex.1984); West v. Solito, 563 S.W.2d 240, 244 (Tex.1978);
discovery of the type disapproved in Russell; rather, they          Womack v. Berry, 156 Tex. 44, 50, 291 S.W.2d 677, 682
narrowly seek information regarding the potential bias              (1956). See generally, David W. Holman & Byron C.
suggested by the witness' own deposition testimony and that         Keeling, Entering the Thicket? Mandamus Review of Texas
of his professional colleague.                                      District Court Witness Disclosure Orders, 23 St. Mary's L.J.
                                                                    365, 390 (1991); Cassidy, 31 S.Tex.L.Rev. at 510; Note, The
Our rules of civil procedure, and the federal rules upon which      Use of Mandamus to Review Discovery Orders in Texas:
they are based, mandate a flexible approach to discovery. A         An Extraordinary Remedy, 1 Rev.Litig. 325, 326–27 (1981);
party may seek any information which “appears reasonably            Comment, 32 Sw.L.J. at 1290.
calculated to lead to the *839 discovery of admissible
evidence.” Tex.R.Civ.P. 166b(2)(a). Evidence of bias of             A trial court clearly abuses its discretion if “it reaches a
a witness is relevant and admissible. See Tex.R.Civ.Evid.           decision so arbitrary and unreasonable as to amount to a clear
613(b). 5                                                           and prejudicial error of law.” Johnson v. Fourth Court of
                                                                    Appeals, 700 S.W.2d at 917. This standard, however, has
The trial court erred in failing to apply the foregoing rules to    different applications in different circumstances.
determine whether the documents were discoverable. Instead,
the trial court simply read Russell as an absolute bar to            [5] With respect to resolution of factual issues or matters
discovery, even though the circumstances here are quite             committed to the trial court's discretion, for example, the
distinguishable. In so doing, the trial court misapplied the        reviewing court may not substitute its judgment for that of the
Russell holding. We expressly disapprove such a mechanical          trial court. See Flores v. Fourth Court of Appeals, 777 S.W.2d
                                                                    38, 41–42 (Tex.1989) (holding that determination *840 of
approach to discovery rulings. 6
                                                                    discoverability under Tex.R.Civ.P. 166b(3)(d) was within
                                                                    discretion of trial court); Johnson, 700 S.W.2d at 918 (holding
Having concluded that the trial court erred in denying the
                                                                    that trial court was within discretion in granting a new trial
discovery based solely on Russell, we now must determine
                                                                    “in the interest of justice and fairness”). The relator must
whether the appropriate remedy lies by writ of mandamus.
                                                                    establish that the trial court could reasonably have reached
“Mandamus issues only to correct a clear abuse of discretion
                                                                    only one decision. Id. at 917. Even if the reviewing court
or the violation of a duty imposed by law when there is no
                                                                    would have decided the issue differently, it cannot disturb the
other adequate remedy by law.” Johnson v. Fourth Court of
                                                                    trial court's decision unless it is shown to be arbitrary and
Appeals, 700 S.W.2d 916, 917 (Tex.1985). 7 We therefore             unreasonable. Johnson, 700 S.W.2d at 918.
examine whether the trial court's error in the present case
constituted a clear abuse of discretion and, if so, whether there    [6] On the other hand, review of a trial court's determination
is an adequate remedy by appeal.                                    of the legal principles controlling its ruling is much less
                                                                    deferential. A trial court has no “discretion” in determining
                                                                    what the law is or applying the law to the facts. Thus,
1. Clear Abuse of Discretion
                                                                    a clear failure by the trial court to analyze or apply the
Traditionally, the writ of mandamus issued only to compel
                                                                    law correctly will constitute an abuse of discretion, and
the performance of a ministerial act or duty. See Wortham v.
                                                                    may result in appellate reversal by extraordinary writ. See
Walker, 133 Tex. 255, 277, 128 S.W.2d 1138, 1150 (1939);
                                                                    Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991)
Arberry v. Beavers, 6 Tex. 457 (1851); Helen A. Cassidy,
                                                                    (trial court abused discretion by misinterpreting Code of
The Instant Freeze–Dried Guide to Mandamus Procedure in
                                                                    Judicial Conduct); NCNB Texas National Bank v. Coker, 765
Texas Courts, 31 S.Tex.L.Rev. 509, 510 (1990); Comment,
                                                                    S.W.2d 398, 400 (Tex.1989) (trial court abused discretion
The Expanding Use of Mandamus to Review Texas District
                                                                    by failing to apply proper legal standard to motion to
Court Discovery Orders: An Immediate Appeal Is Available,
                                                                    disqualify counsel); Eanes ISD v. Logue, 712 S.W.2d 741,
32 Sw.L.J. 1283, 1288 (1979).
                                                                    742 (Tex.1986) (trial court abused discretion by erroneously
                                                                    finding constitutional violation).
Since the 1950's, however, this Court has used the writ to
correct a “clear abuse of discretion” committed by the trial


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Walker v. Packer, 827 S.W.2d 833 (1992)


 [7]    [8] In determining whether the trial court abused          mandamus to correct a discovery abuse without considering
its discretion in the present case, we treat the trial court's     whether the relator had an adequate remedy by appeal. The
erroneous denial of the requested discovery on the sole            real party in interest in Allen raised this argument, but the
basis of Russell as a legal conclusion to be reviewed with         Court avoided the issue by citing Barker. Id. at 801.
limited deference to the trial court. This is consistent with
our approach in previous mandamus proceedings arising out          Commentators quickly criticized the Barker and Allen
of the trial court's interpretation of legal rules. Cf. Axelson,   opinions. See James Sales, Pre–Trial Discovery in Texas, 31
Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex.1990); Barnes           Sw.L.J. 1017, 1033 (1977); Comment, The Expanding Use of
v. Whittigton, 751 S.W.2d 493, 495–96 (Tex.1988); Terry v.         Mandamus to Review Texas District Court Discovery Orders:
Lawrence, 700 S.W.2d 912, 913–14 (Tex.1985). Under this            An Immediate Appeal Is Available, 32 Sw.L.J. 1283, 1300
analysis, the trial court's erroneous interpretation of the law    (1979) (In most cases “forcing a party to await the completion
constitutes a clear abuse of discretion.                           of the trial in order to seek appellate review will not endanger
                                                                   his substantial rights....”); Note, Mandamus May Issue To
                                                                   Compel A District Judge to Order Discovery, 9 Tex.Tech
2. Adequate Remedy by Appeal                                       L.Rev. 782 (1978) (mandamus should not be a substitute for
In order to determine whether the writ should issue, however,      appeal).
we must further decide whether the Walkers have an adequate
remedy by appeal.                                                  In Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984), the
                                                                   Court again used the extraordinary writ of mandamus to
 [9] Mandamus will not issue where there is “a clear and           compel discovery which had been denied by the trial court.
adequate remedy at law, such as a normal appeal.” State            Unlike in Barker and Allen, however, the Court in Jampole
v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus                addressed whether relator had an adequate appellate remedy.
is intended to be an extraordinary remedy, available only          The underlying suit in Jampole was a products liability action,
in limited circumstances. The writ will issue “only in             and the disputed discovery materials included alternate design
situations involving manifest and urgent necessity and not         and assembly documents. The Court held that relator did
for grievances that may be addressed by other remedies.”           not have an adequate remedy by appeal because denial of
Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684            this discovery effectively prevented relator from proving
(Tex.1989) (quoting James Sales, Original Jurisdiction of          the material allegations of his lawsuit. 673 S.W.2d at 576.
the Supreme Court and the Courts of Civil Appeals of Texas         Remedy by appeal in a discovery mandamus is not adequate
in Appellate Procedure in Texas, § 1.4[1] [b] at 47 (2d            where a party is required “to try his lawsuit, debilitated by the
ed. 1979)). The requirement that persons seeking mandamus          denial of proper discovery, only to have that lawsuit rendered
relief establish the lack of an adequate appellate remedy is       a certain nullity on appeal....” Id.
a “fundamental tenet” of mandamus practice. Holloway, 767
S.W.2d at 684.                                                     Although the Court in Jampole recognized the need to
                                                                   address whether relator had an adequate remedy by appeal,
[10]   Our requirement that mandamus will not issue where          it expressly refused to overrule Barker and Allen. Id.
there is an adequate remedy by appeal is well-settled. 8 On a      Perhaps because of this, we have on several occasions since
few occasions, however, we have not focused *841 on this           Jampole used mandamus to correct discovery errors without
requirement when applying mandamus review of discovery             considering whether the relator had an adequate appellate
orders. For example, in Barker v. Dunham, 551 S.W.2d 41            remedy. See Loftin v. Martin, 776 S.W.2d 145 (Tex.1989);
(Tex.1977), the trial court refused to compel defendant's          Barnes v. Whittington, 751 S.W.2d 493 (Tex.1988); Lunsford
representative to answer certain deposition questions, and the     v. Morris, 746 S.W.2d 471 (Tex.1988); Turbodyne Corp. v.
plaintiff applied to this Court for a writ of mandamus. We         Heard, 720 S.W.2d 802 (Tex.1986); Terry v. Lawrence, 700
concluded that the trial court had abused its discretion, and      S.W.2d 912 (Tex.1985); Lindsay v. O'Neill, 689 S.W.2d 400
ordered that the writ conditionally issue. We never discussed      (Tex.1985).
the well-settled requirement of inadequate remedy by appeal.
                                                                   On many other occasions, however, we have still required a
A few months later, in Allen v. Humphreys, 559 S.W.2d 798          showing of inadequate *842 remedy by appeal in mandamus
(Tex.1977), the Court again conditionally issued a writ of         proceedings involving other types of pre-trial orders, even



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Walker v. Packer, 827 S.W.2d 833 (1992)


those involving discovery. See, e.g., TransAmerican Natural          discovery progressed and the evidence was developed at trial.
Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991);                 Moreover, the delays and expense of mandamus proceedings
Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60               may be substantial. This proceeding, for example, involving
(Tex.1991); Bell Helicopter Textron, Inc., v. Walker, 787            rulings on collateral discovery matters, has delayed the trial
S.W.2d 954, 955 (Tex.1990); Stringer v. Eleventh Court of            on the merits for over two years. The impact on the appellate
Appeals, 720 S.W.2d 801, 801–02 (Tex.1986). In Hooks, for            courts must also be considered. We stated in Braden that
example, we reaffirmed that the “cost or delay of having to          “[t]he judicial system cannot afford immediate review of
go through trial and the appellate process does not make the         every discovery sanction.” 811 S.W.2d 922, 928. It follows
remedy at law inadequate.” 808 S.W.2d at 60.                         that the system cannot afford immediate review of every
                                                                     discovery order in general. 9 We therefore disapprove of
 [11] The requirement that mandamus issue only where                 Cleveland, Crane, Jampole and any other authorities to the
there is no adequate remedy by appeal is sound, and we               extent that they imply that a remedy by appeal is inadequate
reaffirm it today. No mandamus case has ever expressly               merely because it might involve more delay or cost than
rejected this requirement, or offered any explanation as to          mandamus.
why mandamus review of discovery orders should be exempt
from this “fundamental tenet” of mandamus practice. Without          Justice Doggett's dissent argues that because discovery errors
this limitation, appellate courts would “embroil themselves          often constitute harmless errors under Tex.R.App.P. 81(b)
unnecessarily in incidental pre-trial rulings of the trial courts”   (1), parties denied mandamus relief will be deprived of
and mandamus “would soon cease to be an extraordinary                any remedy since the *843 error will not provide a
writ.” Braden v. Downey, 811 S.W.2d 922, 928 (Tex.1991).             basis for appellate reversal. This is nothing more than a
We thus hold that a party seeking review of a discovery order        thinly disguised attack on the harmless error rule. Avoiding
by mandamus must demonstrate that the remedy offered by              interlocutory appellate review of errors that, in the final
an ordinary appeal is inadequate. We disapprove of Barker,           analysis, will prove to be harmless, is one of the principal
Allen, and any other authorities to the extent they might be         reasons that mandamus should be restricted.
read as abolishing or relaxing this rule.
                                                                     Justice Doggett's dissent also suggests that we will be
 [12] We further hold that an appellate remedy is not                unable to develop a coherent body of discovery law without
inadequate merely because it may involve more expense                unrestricted mandamus review. We do not think, however,
or delay than obtaining an extraordinary writ. As we                 that losing parties will be reluctant to raise perceived
observed in Iley v. Hughes, the “delay in getting questions          discovery errors on appeal, nor will an appellate court be
decided through the appellate process ... will not justify           foreclosed from writing on discovery issues, even when
intervention by appellate courts through the extraordinary           the error may be harmless. See, e.g., Lovelace v. Sabine
writ of mandamus. Interference is justified only when parties        Consolidated, Inc., 733 S.W.2d 648, 652–53 (Tex.App.—
stand to lose their substantial rights.” 158 Tex. at 368, 311        Houston [14th Dist.] 1987, writ denied).
S.W.2d at 652.
                                                                     Nor are we impressed with the dissenters' claim that strict
On some occasions, this Court has used, or at least mentioned,       adherence to traditional mandamus standards will signal an
the more lenient standard first articulated in Cleveland v.          end to effective interlocutory review for some parties or
Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.1926), that           classes of litigants. There are many situations where a party
the remedy by appeal must be “equally convenient, beneficial,        will not have an adequate appellate remedy from a clearly
and effective as mandamus.” See, e.g., Jampole v. Touchy,            erroneous ruling, and appellate courts will continue to issue
673 S.W.2d 569, 576 (Tex.1984); Crane v. Tunks, 160 Tex.             the extraordinary writ. In the discovery context alone, at least
182, 190, 328 S.W.2d 434, 439 (Tex.1959). This standard,             three come to mind.
literally applied, would justify mandamus review whenever
an appeal would arguably involve more cost or delay than              [13] First, a party will not have an adequate remedy by
mandamus. This is unworkable, both for individual cases              appeal when the appellate court would not be able to cure the
and for the system as a whole. Mandamus disrupts the trial           trial court's discovery error. This occurs when the trial court
proceedings, forcing the parties to address in an appellate          erroneously orders the disclosure of privileged information
court issues that otherwise might have been resolved as              which will materially affect the rights of the aggrieved party,



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Walker v. Packer, 827 S.W.2d 833 (1992)


such as documents covered by the attorney-client privilege,      576 (“Because the evidence exempted from discovery would
West v. Solito, 563 S.W.2d 240 (Tex.1978), or trade secrets      not appear in the record, the appellate courts would find it
without adequate protections to maintain the confidentiality     impossible to determine whether denying the discovery was
of the information. Automatic Drilling Machines v. Miller,       harmful.”). If the procedures of Tex.R.Civ.P. 166b(4) are
515 S.W.2d 256 (Tex.1974). As we noted in Crane: “After          followed, this situation should only rarely arise. If and when it
the [privileged documents] had been inspected, examined and      does, however, the court must carefully consider all relevant
reproduced ... a holding that the court had erroneously issued   circumstances, such as the claims and defenses asserted, the
the order would be of small comfort to relators in protecting    type of discovery sought, what it is intended to prove, and
their papers.” 160 Tex. at 190, 328 S.W.2d at 439. It may        the presence or lack of other discovery, to determine whether
also occur where a discovery order compels the production        mandamus is appropriate. 10
of patently irrelevant or duplicative documents, such that it
clearly constitutes harassment or imposes a burden on the        [18] In the present case, the Walkers seek documents from
producing party far out of proportion to any benefit that may   the Center to impeach one defendant's expert witness. This
obtain to the requesting party. See, e.g., Sears, Roebuck &     information is not privileged, burdensome or harassing, nor
Co. v. Ramirez, 824 S.W.2d 558, 35 Tex.Sup.Ct.J. 454 (1992)     does it vitiate or severely compromise the Walkers' ability to
(demand for tax returns); General Motors Corp. v. Lawrence,     present a viable claim. In fact, as we have already noted, the
651 S.W.2d 732 (Tex.1983) (demand for information about         trial court may ultimately conclude that it is not admissible
all vehicles for all years).                                    or even discoverable. Finally, although the materials are
                                                                not before us, they were considered below, and we know
 [14]     [15] Second, an appeal will not be an adequate of no reason why they would not be available on appeal.
remedy where the party's ability to present a viable claim      Therefore, under our traditional standards of mandamus
or defense at trial is vitiated or severely compromised by      review, as measured by the factors we mention above, the
the trial court's discovery error. It is not enough to show     Walkers have an adequate remedy by appeal and mandamus
merely the delay, inconvenience or expense of an appeal.        is inappropriate.
Rather, the relator must establish the effective denial of a
reasonable opportunity to develop the merits of his or her      For the above reasons, we conclude that the Walkers have
case, so that the trial would be a waste of judicial resources. not established their right to relief by mandamus on either
We recently held that when a trial court imposes discovery      discovery matter. Therefore, we deny the Walkers' petition
sanctions which have the effect of precluding a decision on     for writ of mandamus.
the merits of a party's claims—such as by striking pleadings,
dismissing an action, or rendering default judgment—a
party's remedy by eventual appeal is inadequate, unless the
sanctions are imposed simultaneously with the rendition of      GONZALEZ, J., concurs and files an opinion.
a final, appealable judgment. TransAmerican Natural Gas
                                                                DOGGETT, J., dissents and files an opinion, joined by
Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991). Similarly,
                                                                MAUZY, J.
a denial of discovery going to the heart of a party's case may
render the appellate remedy inadequate.                         GAMMAGE, J., dissents and files an opinion.

 [16] [17] Finally, the remedy by appeal may be inadequate       GONZALEZ, Justice, concurring.
where the trial court disallows discovery and the missing        I agree with the court's disposition of this cause but disagree
discovery cannot be made part of the appellate record, or        with the court's opinion regarding the “Obstetrics Faculty
the trial court after proper request refuses to make it part     Records.” Specifically, I disagree with the court's attempt to
of the record, and the reviewing court is unable to evaluate     distinguish Russell v. Young, 452 S.W.2d 434 (Tex.1970).
the effect of the trial court's error *844 on the record         Nevertheless, I concur in the result.
before it. See Tom L. Scott, Inc. v. McIlhany, 798 S.W.2d
556, 558 (Tex.1990) (“[M]andamus is the only remedy              Russell holds that wholesale discovery of the private records
because the protective order shields the witnesses from          of a non-party witness is not permitted if the sole purpose for
deposition and thereby prevents the evidence from being          discovery is to impeach the credibility of the non-party. 1 452
part of the record.”); see generally Jampole, 673 S.W.2d at      S.W.2d at 435. The policy considerations of Russell still apply



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Walker v. Packer, 827 S.W.2d 833 (1992)


today. By disapproving of Russell as “a mechanical approach                    or the claim or defense of any other
to discovery rulings,” at 839, the court forces trial courts to                party.
get further involved in discovery matters. This increases the
backlog, delay, and cost of litigation by creating the need for   This same text is now codified in Rule 166b(2)(a). Clearly,
more hearings.                                                    impeachment evidence regarding collateral matters would
                                                                  not relate to the subject matter of the pending action.
In the instant case, the plaintiffs sought to discover
documents from the University of Texas Health Science             Implicitly, the court concludes that the credibility of a non-
Center to confirm the existence of a written policy restricting   party witness alone is a relevant avenue of inquiry and, thus, is
faculty members from testifying for plaintiffs in medical         a matter properly open to discovery under some new, broader
malpractice cases. This policy was sought for use in              definition of relevancy.
impeaching defendant's expert witness, Dr. Gilstrap. In
refusing discovery, the trial court concluded *845 that           While I agree that the definition of relevance in Rule 401 of
the relevance of this material was limited to impeachment.        the Texas Rules of Civil Evidence includes matters bearing on
As such, the requested documents fell squarely within the         credibility, this alone does not explain or distinguish Russell.
prohibition of Russell.                                           A witness' credibility has always been a relevant matter. As
                                                                  the United States Supreme Court has said: “[p]roof of bias
Despite the court's mischaracterization of Russell, the issues    is almost always relevant because the jury, as finder of fact
and type of evidence sought here and in Russell are identical.    and weigher of credibility, has historically been entitled to
Just as in Russell, the records sought in the instant case did    assess all evidence which might bear on the accuracy and
not relate directly to the subject matter of the suit. The only   truth of a witness' testimony.” United States v. Abel, 469
difference between the present case and Russell is the identity   U.S. 45, 52, 105 S.Ct. 465, 469, 83 L.Ed.2d 450 (1984).
of the party seeking the information. In Russell, a defendant     Yet in Russell, we said that a trial court lacked “authority”
sought evidence to impeach the plaintiffs' expert; here, the      to order discovery from a non-party solely for purposes of
plaintiff sought evidence to impeach a defendant's expert.        impeachment. 452 S.W.2d at 435. We chose to withdraw
Surely, we cannot have a rule that changes in application         all discretion in this particular area of discovery. Russell
depending on whether the relator is a plaintiff or a defendant    concedes that impeachment evidence may be relevant and
in the trial court.                                               admissible at trial, but holds that it cannot be discovered from
                                                                  a non-party for its own sake prior to trial. 452 S.W.2d at 436.
In my opinion, the court strains to distinguish Russell. The
court suggests that the trial judge made a mistake in her         The fact that a matter may have some relevance yet not be
ruling by failing to read Russell in conjunction with the         subject to discovery is hardly a novel concept. The basic
rules of civil procedure and evidence. However, when we           premise of the rules of discovery is to weigh the legitimate
adopted the new Texas Rules of Civil Evidence, there was          needs of litigation against the other rights and values that
no discussion whatsoever that, by their adoption, we intended     would be irreparably harmed by unfettered discovery. Russell
to reject the settled rule that information sought solely for     strikes the proper balance by protecting non-party witnesses
impeachment of a non-party is not discoverable. Russell, 452      from indiscriminate invasions into their private lives where
S.W.2d at 435; see also W.W. Rodgers & Sons Produce Co. v.        the information sought would not appreciably shed light on
Johnson, 673 S.W.2d 291, 294–95 (Tex.App.—Dallas 1984,            the issues of the case.
orig. proceeding). Furthermore, the scope of discovery has
not changed in the twenty years since Russell has been on the     Furthermore, the decision in Russell was not grounded on
books. When Russell was decided, the scope of discovery was       whether the credibility of the witness had been placed in
codified in Texas Rule of Civil Procedure 186a. It provided       doubt. Instead, the court highlighted the fact that *846
in pertinent part that:                                           the witness had not offered testimony at trial nor was his
                                                                  deposition introduced into evidence at trial. The court said:
            [p]arties may obtain discovery
            regarding any matter which is relevant                             Relator has not yet taken the witness
            to the subject matter in the pending                               stand nor has his deposition been
            action whether it relates to the claim or                          introduced into evidence because
            defense of the party seeking discovery                             there has not yet been a trial;


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Walker v. Packer, 827 S.W.2d 833 (1992)


             relator's records cannot possibly have                Finding a wrong and denying a remedy echoes the logic of
             impeachment value because there is                    the majority's recent conclusion that a tax is unconstitutional
             nothing yet to impeach and there                      but must be paid anyway. See Carrollton–Farmers Branch
             may never be anything to impeach,                     Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d
             depending upon the contents of the                    489, 524 (1992) (Edgewood III ) (Doggett, J., dissenting).
             testimony, if any, which is introduced                Rather than correcting the abuse, the court simply gives the
             during the trial of the lawsuit.                      Walkers the same message it gave Texas taxpayers—wait.
                                                                   Only after a full jury trial based upon incomplete discovery
Russell, 452 S.W.2d at 437. Thus, it is evident that the court     will the judiciary even consider any possibility of relief.
has today reinterpreted Russell with little or nothing to gain
in a way that further obscures the proper scope of discovery.      For those who have previously sought more specific
                                                                   guidelines for the use of mandamus concerning discovery
I am concerned that as a result of today's ruling, some non-       orders, the majority responds with not one but two standards
parties will be subjected to harassment and intrusion into         for reviewing trial court action: orders compelling discovery
their private lives, and that trial courts will be inundated       may be immediately corrected; review of denied discovery
with hearings on collateral issues far afield from the merits      is postponed indefinitely in a manner to ensure that no
of the cause of action or defense. The court has attempted         meaningful relief will ever be forthcoming.
to fix something that was not broken. This reinterpretation
of Russell will further tax our overburdened judicial system
without appreciably benefiting the litigants or the system.
                                                                                                   I.
Finally, for the reasons expressed in Joachim v. Chambers,
                                                                   What a different path this court now pursues than that so
815 S.W.2d 234, 241 (Tex.1991) (Gonzalez, J., dissenting), I
                                                                   recently proclaimed in its unanimous decision that
agree with the clarification of the standards for the issuance
of mandamus.                                                         Discovery is ... the linchpin of the search for truth, as it
                                                                     makes “a trial less *847 a game of blind man's bluff and
                                                                     more a fair contest with the issues and facts disclosed to
DOGGETT, Justice, dissenting.
                                                                     the fullest practicable extent.”
  Them that's got shall get
                                                                   State v. Lowry, 802 S.W.2d 669, 671 (Tex.1991) (quoting
     Them that's not shall lose                                    United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78
                                                                   S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). Similarly ignored are
  —God Bless The Child 1
                                                                   our recent, unanimous writings in Axelson, Inc. v. McIlhany,
                                                                   798 S.W.2d 550, 553, 555 (Tex.1990, orig. proceeding)
With a double standard, the majority strikes a devastating
                                                                   (“[Discovery should provide] the fullest knowledge of the
blow at the most direct method of curbing abuses of judicial
                                                                   facts and issues prior to trial.... [T]he ultimate purpose of
power. Many judicial excesses far beyond the scope of
                                                                   discovery ... is to seek the truth....”); and Tom L. Scott, Inc. v.
anything alleged in this particular case will henceforth receive
                                                                   McIlhany, 798 S.W.2d 556, 559 (Tex.1990, orig. proceeding)
only an official nod and wink from the Texas Supreme Court.
                                                                   (“The primary policy behind discovery is to seek truth so
                                                                   that disputes may be decided by facts that are revealed rather
Mandamus is the legal tool by which appellate courts can
                                                                   than concealed.”). Without mandamus review to add meaning
promptly correct arbitrary and capricious rulings by trial
                                                                   to these laudatory expressions, they are just hollow words.
judges. Today's opinion announces that this remedy will be
                                                                   The new signal is clear—circumvent discovery and conceal
available to support concealment of the truth but not its
                                                                   information.
disclosure. Mandamus is officially declared a one-way street
in the Texas courts—our judiciary can help to hide but not to
                                                                   Today's opinion reflects the radical change in philosophy
detect.
                                                                   which has taken firm hold in this court—discovery is no
                                                                   longer a search for truth, it is merely a game of hide and seek.
Despite a determination that a “clear abuse of discretion” has
                                                                   No longer may appellate courts intercede through mandamus
occurred in this particular case, at 840, all relief is denied.
                                                                   even for the trial court's complete abuse of discretion in


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Walker v. Packer, 827 S.W.2d 833 (1992)


denying access to vital data; under the newly-announced
double standard, intervention can, however, be accorded for         Elizabeth G. Thornburg, Interlocutory Review of Discovery
those who persevere in evasion.                                     Orders: An Idea Whose Time Has Come, 44 Sw.L.J. 1045,
                                                                    1082 (1990) (hereinafter Review of Discovery Orders )
When a local business is defrauded, when a community is             (footnote omitted). 2 In this way the *848 majority ensures
exposed to dangerous toxic wastes, when a manufacturer              that the scales of justice—which at the onset of litigation are
ignores reports that a safety design change would reduce user       often in reality uneven—never achieve balance.
injuries, when a monopoly extorts unfair gain from the public,
when discrimination results in job loss, and in numerous            Until this court included discovery orders within the scope
other circumstances, the burden of proving wrongdoing is            of mandamus review, very few reported opinions addressed
exceedingly difficult to satisfy without obtaining evidence of      this important subject. Trial judges were effectively accorded
that wrong from the files of the perpetrator. In such situations    unlimited discretion with a “resulting atmosphere [that]
denial of discovery effectively means denial of all relief. That    was very hostile to discovery.” Id. at 1071. As a practical
reality does not go unrecognized by today's majority.               matter, discovery battles, often both complex and time-
                                                                    consuming, were shunned. When the party controlling vital
Entities that begin litigation in control of most of the relevant   data exercises the power of withholding it, fighting every
evidence can often defeat their adversaries simply by denying       important request, the judicial command “go work it out”
them the power of information:                                      often amounts to a denial of meaningful discovery. The
                                                                    mud-wrestling that frequently ensues in such contests may
             [T]hose with established positions of                  discourage a trial judge from determining who is acting fairly
             power are more likely to ... win                       and who started the fight. If mandamus is not available to
             by preventing their adversaries from                   correct ill-considered or hasty denials, the hope for ultimate
             producing evidence; they are less                      justice in complex litigation is prematurely crushed. The
             likely to be in the position of having to              majority's decision today marks a return to those dark ages
             extract evidence from their opponents                  when discovery was regularly denied as the path of least
             to make out their case.                                resistance and greatest convenience for the judiciary.

23 Charles A. Wright & Kenneth W. Graham, Jr., Federal
Practice & Procedure § 5422, at 674 (1980). With its separate
and unequal treatment of litigants, the majority gives yet                                        II.
another edge to the already advantaged. Providing immediate
review for orders that start the flow of information but            By its very nature, discovery involves a search for what is
refusing to consider those that stop it, the majority once again    largely unknown from someone who may have an incentive
expresses its preference for helping the powerful over the          to make that search as long and tortuous as possible. Efforts
seemingly powerless. Those opposing meaningful discovery            to prevent discovery have been limited only by the boundless
                                                                    imagination of the top legal talent in America. Requests are
             tend to be institutions rather than                    either too broad or too narrow; records produced are either
             individuals, and tend to be among the                  minimal or in such voluminous, disorganized form as to make
             more wealthy and powerful segments                     locating relevant information most difficult; vital documents
             of society. A review system that gives                 vanish in “routine document destruction” programs or are
             priority (that is, immediate review) to                misplaced. Accordingly, our discovery rules have required
             the complaints of privilege holders,                   continual revision to cope with the newest ways invented
             but which consigns the complaints of                   by those intent on subverting the process. Each revision of
             parties seeking discovery until after                  the Texas Rules of Civil Procedure during the last decade
             final judgment, gives an advantage                     has included attempted clarification and improvement of
             to those wealthy institutional litigants.              discovery procedures. This has produced a body of law that is
             They have the power to achieve more                    “complex and rapidly evolving.” David W. Holman & Byron
             favorable results during the pretrial                  C. Keeling, Entering the Thicket? Mandamus Review of Texas
             process; their opponents must wait.                    District Court Witness Disclosure Orders, 23 St. Mary's L.J.




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Walker v. Packer, 827 S.W.2d 833 (1992)


365, 375 (1991) (hereinafter Mandamus of Disclosure Orders           then, both more consistency and more accuracy in trial court
).                                                                   decisions. See id. at 1077. 3

Given the creativity of those who would thwart discovery,            The role of this court is particularly important in answering
rules of procedure cannot be drawn to provide clear                  novel or significant questions of discovery law. See
guidance in every situation; judicial interpretation is              Mandamus of Disclosure Orders at 376 (“[P]re-trial appellate
essential. The more complicated the rule, the more                   review of [important discovery] questions could lend critical
necessary the construction and the greater the likelihood for        guidance to the development of Texas discovery practice.”).
misinterpretation. See id. at 386 (“Erroneous interpretations        Rather than avoiding its responsibility, this court should
of these changes ... are likely with the absence of prior            utilize mandamus review to reduce the abuse of judicial
significant precedent.... [and] could have a substantial effect      power when “a unique question of discovery” law is
on the subsequent course of a lawsuit.”). This court's               presented. David West, Note, The Use of Mandamus to
responsibility does not and cannot end when the text of              Review Discovery Orders in Texas: An Extraordinary
promulgated amendments appears in the Texas Bar Journal.             Remedy, 1 Rev.Litigation 325, 327 (1981) (hereinafter The
Rather, the court has a duty both to make the rules and to           Use of Mandamus ).
interpret them.
                                                                     Most trial court mistakes denying discovery result from the
Our American system of jurisprudence is founded on the               need to make repeated, quick decisions based upon limited
precept that it is of great benefit to have a written body of case   information. Recognizing this circumstance, trial judges
law construing controlling legal principles and applying them        sometimes actually encourage litigants to raise disputed
to particular facts. This approach is undeniably desirable in        rulings affecting truly vital matters for appellate examination
the discovery context:                                               through mandamus by automatically staying their orders.
                                                                     Refusal of prompt appellate review not only denies a party its
             In a system where trial court
                                                                     rights but may also deprive a trial court of desired guidance.
             decisions are unreported and have no
             precedential value, the creation of a
                                                                     Today's opinion appropriately recognizes that “this Court will
             body of reported appellate case law
                                                                     not grant mandamus relief unless we determine that the error
             regarding discovery has substantial
                                                                     is of such importance to the jurisprudence of the state as
             value. Case law on discovery promotes
                                                                     to require correction.” At 839 n. 7. But under the standard
             uniform interpretation of the discovery
                                                                     announced, questions of importance concerning judicially-
             rules and, in time, decreases the
                                                                     approved concealment of facts will never be considered. The
             opportunity for individual *849
                                                                     significance to the state's jurisprudence of a ruling should
             judge's biases to shape discovery
                                                                     certainly not be controlled by whether the order granted or
             outcomes. Reported decisions develop
                                                                     denied discovery.
             clear rules, where rules are possible,
             and narrow the range of judicial
             discretion in other areas simply by
             providing numerous cases finding                                                        III.
             that the trial court did or did not
             abuse its discretion. Such case law                     With mandamus now severely limited, many important issues
             can be particularly helpful in a                        will not be reviewed. See generally Review of Discovery
             jurisdiction that has recently amended                  Orders at 1056; The Use of Mandamus at 337 & n. 94. Abuses
             its discovery rules. Over time, the                     of judicial power will go forever uncorrected when the party
             existence of discovery case law may                     disallowed discovery, realizing the difficulty of proving a
             even clarify the rules sufficiently so as               case with less than full information and the uphill task of
             to decrease the number of disputes in                   maintaining a successful appeal, is either forced to settle or
             the trial court.                                        forgoes a costly and extended appeal following defeat on
                                                                     the entire case. Nor will improper rulings ever be reviewed
Review of Discovery Orders at 1080 (footnotes omitted).              where one denied discovery, although severely handicapped,
Appellate opinions properly applying mandamus produce,               nonetheless prevails at trial.


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Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                    Similarly, in Allen v. Humphreys, 559 S.W.2d 798 (Tex.1977,
Where appeals do occur, remedies will be rare even for              orig. proceeding), the trial court refused to order discovery of
egregious pretrial rulings. To succeed in this endeavor, one        tests, surveys and complaints by similarly affected persons.
must show that                                                      This court found an abuse of discretion and granted the
                                                                    writ, despite the argument that the plaintiff had “an adequate
             the error complained of amounted to                    remedy via the normal appellate process.” Id. at 801. It is
             such a denial of the rights of appellant               difficult to perceive, in light of this argument and the court's
             as *850 was reasonably calculated to                   subsequent grant of mandamus relief, how the majority can
             cause and probably did cause rendition                 now claim that “we [had] not focused” on the requirement of
             of an improper judgment in the case,                   an inadequate remedy by appeal in Allen and on, admittedly,
             or was such as probably prevented                      a “few [other] occasions.” At 840–841.
             the appellant from making a proper
             presentation of the case to the appellate              Following these two opinions, this court has not hesitated
             court.                                                 to consider and correct the wrongful denial of discovery.
                                                                    By issuing mandamus to rectify an erroneous trial court
Tex.R.App.P. 81(b). This standard is universally regarded
                                                                    ruling refusing discovery in Jampole v. Touchy, 673 S.W.2d
as a “more difficult hurdle” than abuse of discretion. Helen
                                                                    569 (Tex.1984, orig. proceeding), this court recognized that
A. Cassidy, The Instant Freeze–Dried Guide to Mandamus
                                                                    appeal is not an adequate remedy:
Procedure in Texas Courts, 31 S.Tex.L.Rev. 509, 512 (1990).
As another commentator has aptly concluded,                           [R]equiring a party to try his lawsuit, debilitated by the
                                                                      denial of proper discovery, only to have that lawsuit
             only an unusual discovery order would
                                                                      rendered a certain nullity on appeal, falls well short of a
             be dispositive enough to show the
                                                                      remedy by appeal that is “equally convenient, beneficial,
             harmful error that most jurisdictions
                                                                      and effective as mandamus.”
             require for appellate reversal. Many
             appellants, therefore, would not even                  Id. at 576 (quoting Crane v. Tunks, 160 Tex. 182, 190,
             raise the discovery points on appeal.                  328 S.W.2d 434, 439 (1959) (citation omitted)); see also
                                                                    Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068
Review of Discovery Orders at 1056; see also Mandamus of
                                                                    (Tex.1926).
Disclosure Orders at 376 n. 40 (observing that, because of the
harmless error rule, many discovery rulings are not pursued
                                                                    A trial court's unwillingness to order the production of
on appeal). In denying mandamus today, the majority closes
                                                                    accident scene photographs was overturned by mandamus
and locks the appellate courthouse door to any meaningful
                                                                    in Terry v. Lawrence, 700 S.W.2d 912 (Tex.1985, orig.
consideration of numerous significant matters.
                                                                    proceeding). In Lindsey v. O'Neill, 689 S.W.2d 400,
                                                                    402 (Tex.1985, orig. proceeding) (per curiam), the court
                                                                    overturned by mandamus an order limiting the scope of
                              IV.                                   a deposition and quashing the accompanying document
                                                                    request. A blanket order protecting hospital records was
Only with the tragic recent change in course by this court's        similarly vacated by mandamus in Barnes v. Whittington,
majority has such denial of access become acceptable.               751 S.W.2d 493 (Tex.1988, orig. proceeding). In Lunsford
Previously both this court and the courts of appeals had            v. Morris, 746 S.W.2d 471 (Tex.1988, orig. proceeding),
employed their writ power as necessary to correct the abusive       this court again granted mandamus to remedy a trial
refusal of discovery. Among those cases providing the               court's erroneous disallowance *851 of relevant discovery.
foundation for appropriate mandamus review is Barker v.             See also Loftin v. Martin, 776 S.W.2d 145 (Tex.1989,
Dunham, 551 S.W.2d 41 (Tex.1977, orig. proceeding), in              orig. proceeding) (correcting by mandamus wrongful denial
which the trial court had overruled a motion to complete an         of discovery); Turbodyne Corp. v. Heard, 720 S.W.2d
expert witness's deposition and to compel production of his         802 (Tex.1986, orig. proceeding) (per curiam) (mandamus
work papers. We interceded, stating that: “It is settled that       directing trial court to rescind order denying discovery of
the writ of mandamus may issue in a discovery proceeding to         documents from insurer in subrogation action); Ginsberg v.
correct a clear abuse of discretion by a trial judge.” Id. at 42.   Fifth Court of Appeals, 686 S.W.2d 105 (Tex.1985, orig.


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Walker v. Packer, 827 S.W.2d 833 (1992)


proceeding) (erroneous bar of deposition by court of appeals        of privilege, the violation of which necessarily impinges on
                       4                                            the objecting party's rights.
cured by mandamus).

It is only after fifteen years of repeated judicial reliance upon   Second, mandamus will issue when a trial court orders the
Barker and Allen in the issuance of numerous opinions that          disclosure of “trade secrets without adequate protections
we learn these precedents of our court are not good law. This       to maintain the confidentiality of the information.” At 843
is all the more strange in that we had explicitly refused to        (citing, without discussion, Automatic Drilling Machs., Inc.
overrule them. When that very request was urged in Jampole,         v. Miller, 515 S.W.2d 256 (Tex.1974, orig. proceeding)).
673 S.W.2d at 576, our answer was unmistakable: “We                 Posing numerous problems, this hastily-drawn exception has
decline to do so.” But the majority's new answer is simple:         no relevance to the instant case and was concocted by the
“Line them up against the wall.” What does it matter that           majority without any briefing or argument by counsel. One
a dozen or more Texas Supreme Court cases and countless             privilege is thereby unjustifiably elevated above all others.
decisions of the courts of appeals are to the contrary? They        Moreover, the writing implies an absolute protection of trade
                                                                    secrets from discovery when in fact this privilege is most
can be disposed of in a mass execution of precedent. 5
                                                                    definitely qualified, as recognized by Automatic Drilling,
Today's firing squad announces that it is only answering the
command of Jim Sales and two law students who separately            515 S.W.2d at 259, 6 the rule itself, Tex.R.Civ.Evid. 507
criticized the court during the period 1977–79. At 840–841.         (trade secrets not protected when nondisclosure conceals
It thereby rationalizes constructing so distorted a standard on     fraud or works injustice), and even Mr. Sales, whose writing
the corpses of so many prior authorities.                           purportedly warranted today's brash action. 7 Nor does this
                                                                    exception consider the availability in some cases of the
One of the most significant casualties is Jampole v. Touchy,        interlocutory appeal mechanism provided in Tex.R.Civ.P.
which has formed the centerpiece for discovery in litigation        76a(8) to address the adequacy of a protective order. See Eli
over defective products and toxic substances for almost             Lilly & Co. v. Marshall, Order Granting Leave to File Petition
a decade. The majority, in a massive understatement,                for Writ of Mandamus (Doggett, J., dissenting), 829 S.W.2d
“disapproves” Jampole “to the extent [it implies] that a            156 (Tex.1991).
remedy by appeal is inadequate merely because it might
involve more delay or cost than mandamus.” At 842.                  The third situation requiring mandamus is an “order [that]
Although leaving untouched for now this court's prior writing       compels the production of patently irrelevant or duplicative
on the proper scope of discovery, the majority has in fact          documents, such that it clearly constitutes harassment or
overruled that landmark precedent in its entirety. Despite          imposes a burden on the producing party far out of proportion
a gross abuse of discretion in denying critical discovery in        to any benefit that may obtain to the requesting party.” At 843.
Jampole, the majority's only correction by mandamus would           This “catch-all” exception indeed makes the extraordinary
be to require inclusion of the disputed materials in *852 the       writ of mandamus an ordinary one. In almost any complex
record, to await a deferred and meaningless appellate review.       litigation, the claim of burden is essentially a form objection
                                                                    to discovery. It is difficult to perceive a dispute in which
                                                                    the party seeking to obstruct the process could not and, after
                                                                    today's decision, will not claim harassment or imposition
                               V.
                                                                    of an undue burden. See, e.g., Sears, Roebuck & Co. v.
Instead of affording the relief that prior rulings demand, the      Ramirez, 824 S.W.2d 558 (Tex.1992) (per curiam) (granting
majority announces, after considerable mental gymnastics,           mandamus to preclude disclosure of corporate tax returns
that “at least three [discovery situations] come to mind” where     on the basis of undue burden and unnecessary expense, not
mandamus is justified, at 843; then it strangely proceeds to        privilege). 8
describe six. The first three instances where remedy by appeal
is inadequate stem from a trial court's wrongful allowance          A fourth exception, based on *853 Transamerican Natural
of discovery. First, mandamus will issue if “disclosure of          Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.1991, orig.
privileged information ... will materially affect the rights        proceeding), is described when the trial court imposes
of the aggrieved party.” At 843. This requisite is easily           “discovery sanctions ... precluding a decision on the merits
fulfilled with discovery objections that include an assertion       of a party's claims ... unless the sanctions are imposed
                                                                    simultaneously with the rendition of a final, appealable


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Walker v. Packer, 827 S.W.2d 833 (1992)


judgment.” At 843 (emphasis deleted). The majority falsely
suggests that today's standard creates a symmetry with               carefully consider all relevant circumstances, such as the
Transamerican. Unlike Transamerican, which treated the               claims and defenses asserted, the type of discovery sought,
striking of a petition in the same manner as the entry of a          what it is intended to prove, and the presence or lack
default judgment, this ruling creates a double standard. Unlike      of other discovery, to determine whether mandamus is
Transamerican, which involved a readily-perceptible wrong            appropriate.
such as an order of dismissal, a determination of whether            At 844. Within these constraints, there will always be
hidden documents “go to the heart of a party's case,” at 843,        a readily available excuse to deny both discovery and
involves significant uncertainties.                                  mandamus.
                                                                  In most cases the materials can be boxed up, file-stamped, and
More importantly, Transamerican was issued at a time when         sent to the appellate court. How this will accomplish anything
the announced policy of this court was to deter abuses of         more than cluttering the judicial chambers is quite another
discretion without regard to whether discovery was granted        matter. No clue is given as to how to resolve the obvious
or denied. A wide spectrum of sanction orders arising from        difficulties inherent in appellate determination, without any
discovery rulings are immediately appealable. See Braden          effective argument and analysis by counsel, of whether each
v. Downey, 811 S.W.2d 922 (Tex.1991, orig. proceeding).           item would have affected the result. Moreover, this approach
Superimposing Transamerican and Braden on today's double          improperly requires courts of appeals to act as juries while
standard sends a clear message to the rare trial court that       denying to the true fact-finder evidence that may be highly
would impose significant penalties on those who obstruct           *854 relevant to the proceeding. This distrust of juries—
discovery with deceit and delay—be careful. There is no real      of ordinary people resolving factual disputes—is increasingly
danger of immediate and genuine appellate examination of          reflected in the majority's decisions. 10
an order denying discovery, but there is a constant threat of
appellate review of an order granting discovery or imposing       The only hope for review of a trial court's order denying
meaningful sanctions on obstructionists. Once again the           discovery is upon proof that a claim has been “vitiated or
majority provides an incentive for concealment.                   severely compromised by the trial court's discovery error.”
                                                                  At 843. It must be shown “that the trial would be a waste of
The remaining two situations address the wrongful denial          judicial resources,” at 843, and that “a denial of discovery
of discovery, and constitute a narrow path in the                 [goes] to the heart of a party's case.” At 843. It is far from clear
woods compared to the expressway for resisting discovery          whether these encompass one or three different standards.
constructed in the previous four exceptions. Mandamus is          What is clear is that few cases, if any, will satisfy whatever
possible when                                                     standard is applied.

            the missing discovery cannot be made                  The majority offers no example of a case in which a party
            part of the appellate record, or the trial            has ever met such a heavy burden. Apparently an applicant
            court after proper request refuses to                 for mandamus in this court must confess that, without the
            make it part of the record, and the                   discovery sought, the trial court should and must direct a
            reviewing court is unable to evaluate                 contrary verdict. Any semblance of a chance at prevailing
            the effect of the trial court's error on              prevents a determination that the trial would be a “waste
            the record before it.                                 of judicial resources” or that the discovery denied goes
                                                                  “to the heart of a party's case.” While this situation may
At 843–844. The quick fix of including materials in the
                                                                  theoretically arise in the future, it will be most unlikely. Nor
appellate record is both ingenious and ingenuous. It has the
                                                                  is there any explanation of how a party can be expected
immediate “benefit” of excluding a great number of errors in
                                                                  to show such a probability without having any of the
the discovery area from mandamus review. As the majority
                                                                  materials in question. We have previously recognized the
in fact recognizes, “this situation should only rarely arise.”
                                                                  hardship inherent in showing need for documents when their
At 844. 9 And if it ever does, the majority guarantees that       contents are unknown. State v. Lowry, 802 S.W.2d 669,
no relief will be forthcoming, by directing that the reviewing    673 (Tex.1991) (“It is difficult for the [relators] to make a
court                                                             more particularized showing of need for these documents, the
                                                                  contents of which are unknown to them.”).



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Walker v. Packer, 827 S.W.2d 833 (1992)




Application of today's font of mandamus law to the
                                                                                                  VI.
Walkers' situation is most revealing. The majority summarily
concludes that the trial court's misapplication of the law          In supporting today's opinion, Justice Gonzalez insists that
to deprive them of relevant evidence “does [not] vitiate            we must stem what he claims is an alarming increase in
or severely compromise the Walkers' ability to present a            the number of mandamus filings. At 844–846 (Gonzalez, J.,
viable claim.” At 844. Most ironically, today's announcement        concurring). The view that “the sky is falling” is best reflected
imposes one type of double standard on top of another alleged       in the gruesome statistics and conclusions of his dissenting
double standard. The Walkers claim they have uncovered              opinion in Joachim v. Chambers, 815 S.W.2d 234, 241
a double standard at a taxpayer-financed institution that           (Tex.1991). See also Jampole, 673 S.W.2d at 578 (Barrow,
encourages faculty to defend those accused of medical               J., dissenting); cf. C.L. Ray & M.R. Yogi McKelvey, The
malpractice while discouraging professional advice on behalf        Mandamus Explosion, 28 S.Tex.L.Rev. 413, 413–14 (1987).
of the alleged victim. It is the merits of this revelation that
the majority so eagerly seals away from both the Walkers and        Blaming an ever-increasing caseload for the Texas courts
the public.                                                         on the advent of the discovery mandamus is wholly
                                                                    insupportable. These petitions most often present emergency
Fully aware of the impact of expert credibility on the              situations requiring expedited review and, consequently, are
outcome of much medical malpractice litigation, the majority        frequently viewed as a thorn in the side of appellate courts.
denies the Walkers the very information that could perhaps          See Review of Discovery Orders at 1059 n. 99. But I cannot
demonstrate the bias of a key witness. An official blessing is      agree that justice should be denied or delayed solely to
thus provided for trial court action that may have a material,      accommodate appellate judges.
adverse effect on their ability to present a viable case. Having
now learned that the denial of impeachment evidence is              Recent studies have debunked the myth of the mandamus
never susceptible to mandamus, it remains to be seen what           explosion. The Joachim dissent, to which Justice Gonzalez
other critical information will next be similarly viewed as         once again points with pride today, is based upon an analysis
unimportant to this majority.                                       that fails to segregate filings arising from discovery disputes.
                                                                    A more detailed study of Supreme Court experience during a
While the nature of the double standard approved by today's         period of more than ten years correctly concluded that:
writing requires that this dissent focus on wrongful denials,
I recognize that the wrong can be every bit as real from              [I]nterlocutory review of discovery orders ... has [had] a
improper grants of discovery. As a practical matter there is          positive effect.... The increase [in appellate caseloads] has
probably less danger that a trial judge will capriciously ignore      been an extremely small and manageable one....
properly established objections and privileges to accord
too much information instead of too little. Nevertheless, I         .....
favor the use of mandamus to control abuse without regard
                                                                      The numbers, then, suggest that while the availability of
to how it occurs or whom is helped. What I deplore is
                                                                      interlocutory review of discovery orders added cases to the
the discrimination which the majority officially substitutes
                                                                      appellate docket, interlocutory review has not added a large
for even-handedness. Scholars viewing *855 the so-called
                                                                      or burdensome number of cases.
“Walker mandamus standard” should recognize that it is not
a standard but an excuse for ignoring wrongdoing.                   Review of Discovery Orders at 1047, 1059.

After today's decision, discovery disputes will no longer be        The fact is that most petitions are denied, with fewer than
resolved on a level playing field. I believe that mandamus          3% granted by us during fiscal year 1991. Most of these
should be available to correct any trial court abuse concerning     were handled expeditiously, with over half resolved within
a subject that is important to the jurisprudence of the state and   one month of filing. Moreover, Justice Gonzalez completely
which substantially affects rights of an aggrieved party. If this   ignored the fact that mandamus requests in this court actually
requisite is satisfied, relief should be accorded without regard    decreased over the last three years. There were 202 of these
to whether the trial court has granted or denied discovery.         in fiscal 1991, down from 257 and 258, respectively, in fiscal
                                                                    1989 and 1990. Although the court's overall workload is



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Walker v. Packer, 827 S.W.2d 833 (1992)


expanding, the contribution of mandamus filings is certainly          meaning of the majority's carefully chosen words will do well
                     11                                               to observe how the court actually disposes of each of these
not uncontrollable.       “In deciding whether courts should
permit interlocutory *856 review in specific cases, judges            matters.
and commentators tend to emphasize the needs of court
administration over the needs of the litigants.” Id. at 1049.
While cutting off the right to mandamus review when                                      VIII. CONCLUSION
discovery is denied may reduce the appellate workload, the
result will be a significant decline in the quality of justice. The   In an apparent attempt to cope with a false “mandamus
inconvenience caused by the unexpected arrival of a petition          explosion,” today's opinion has offered us an explosion of
that often demands immediate action is the price paid “to             another type—a reverberating detonation of this court's prior
assure that ... trial proceedings are fair and equitable to all       rulings. True the majority has considerable experience in
concerned parties.... ‘[W]e must not sacrifice justice upon           disregarding precedent as merely a lifeless thing of the
the altar of expediency.’ ” Mandamus Review of Disclosure             past. See Edgewood III, 826 S.W.2d at 516, 517 (Doggett,
Orders at 422 (quoting David W. Holman & Byron C.                     J., dissenting); Terrazas, 829 S.W.2d at 739 (Mauzy, J.,
Keeling, Disclosure of Witnesses in Texas: The Evolution              dissenting); Stewart Title Guaranty Co. v. Sterling, 822
and Application of Rules 166b(6) and 215(5) of the Texas              S.W.2d 1, 12 (Tex.1991) (Doggett, J., dissenting). But a
Rules of Civil Procedure, 42 Baylor L.Rev. 405, 458 (1990))           dozen or more Texas Supreme Court authorities and even
(emphasis added).                                                     more rulings from the courts of appeals cut down at one
                                                                      time is not a modest accomplishment. Precedent, no matter
                                                                      how voluminous or how well-established, will clearly not
                                                                      restrain this majority from accomplishing its preconceived
                               VII.
                                                                      social policy objectives.
The majority announces here not a standard, but a pseudo-
standard. In reality, the rule is little more than “how can           Through both deed and now word, the majority invites a
we help those whom we want to help?” The only true                    true explosion in mandamus filings. What does an attorney
precedent for this is Terrazas v. Ramirez, 829 S.W.2d 712             whose client faces the possibility of a judgment for significant
(Tex.1991), where Republican relators in redistricting were           damages have to lose from accepting the beneficence of a
accorded relief in the Supreme Court never sought in any              majority of this court ever willing to serve as protector of the
other forum. This “triple R exception to mandamus,” id. at            privileged? Will a deposition site other than that ordered by
760–61 (Mauzy, J., dissenting), only presages the continued           the trial court *857 be more costly and inconvenient to the
pursuit of this goal.                                                 claimant? Get a stay from the Texas Supreme Court, even
                                                                      if your petition is still pending in the court of appeals. See
If doubts remain as to the one-sidedness of the standard              Continental Can Co. v. Wittig, No. D–2015, 35 Tex.S.Ct.J.
announced today, its application to currently pending cases           355, 1992 WL 17415 (Jan. 29, 1992) (stay of trial court
should resolve them. See, e.g., Remington Arms Co. v.                 order directing engineering employee of products liability
Canales, No. D–1867, 35 Tex.S.Ct.J. 245 (Dec. 13, 1991)               defendant to be deposed in Houston rather than Chicago even
(trial court order which found documents relating to firearm          though mandamus petition was pending in court of appeals).
safety relevant and required their production stayed despite          Did the trial court resolve a conflict in deposition schedules
no timely response or objection being made); Eli Lilly & Co.          in a manner unacceptable to an insurance company? Don't
v. Marshall, No. D–1827, 35 Tex.S.Ct.J. 168, 354 (Dec. 3,             worry, the Texas Supreme Court will stay proceedings even
1991 and Jan. 23, 1992) (stays of trial court order directing         without bothering to get a response from the affected judge.
production of information relating to the drug Prozac); see           See Cigna Corp. v. Spears, No. D–2069, 35 Tex.S.Ct.J. 463
id. at 189 (Order Granting Leave to File Petition for Writ of         (Feb. 19, 1992). Any attorney whose client desires to make
Mandamus) (Doggett, J., dissenting); Valley Baptist Medical           more difficult access to information that will jeopardize its
Center v. Bennett, No. D–1193, 34 Tex.S.Ct.J. 668 (June               credibility, suggest its liability or defeat its defenses would
18, 1991) (stay issued to protect hospital from disclosure of         be foolish to accept a trial court discovery order. A majority
materials relating to policy of informing patients of risk of         of the Texas Supreme Court is ready and willing to interfere
treatment), and 35 Tex.S.Ct.J. 452 (Feb. 12, 1992) (motion            for the asking.
for leave to file granted). One interested in verifying the true


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Walker v. Packer, 827 S.W.2d 833 (1992)


                                                                          I would hold that mandamus is available to correct a trial
The ripple effect created by today's refusal to accord
                                                                          court error which negatively and materially affects the right
mandamus review to pretrial discovery orders will swell to
                                                                          of aggrieved parties to adequately present their cases, whether
tidal-wave proportion, and sweep before it any hope of fair
                                                                          the particular party is seeking discovery or resisting it.
and consistent application of our Texas discovery rules. In
                                                                          See Iley v. Hughes, 158 Tex. 362, 368, 311 S.W.2d 648,
many cases it will leave buried in the sand any possibility
                                                                          652 (1958); see also Elizabeth G. Thornburg, Interlocutory
of trials directed by the full and truthful revelation of the
                                                                          Review of Discovery Orders: An Idea Whose Time Has Come,
underlying facts. Juries will be forced to resolve critical
                                                                          44 SW.L.J. 1045 (1990). In the case before us, the trial court's
disputes based not on truths but rather upon whatever half-
                                                                          denial of discovery has a material and adverse effect on the
truths can be discovered. Left in the wreckage on the beach
                                                                          Walkers' ability to present their case. The information they
will be the tattered remains of the many prior decisions of this
                                                                          seek could impugn the credibility of key expert witnesses at
court and others that viewed litigation as a search for truth in
                                                                          trial. Because their medical malpractice claim, like all such
which fair and prompt appellate review of an order denying
                                                                          claims, will likely stand or fall on the credibility of the expert
discovery was vital.
                                                                          witnesses, I would hold that the Walkers are entitled to the
                                                                          information they seek, and that relief by appeal is inadequate.

MAUZY, J., joins in this dissenting opinion.                              Discovery is the “linchpin of the search for truth,” and
                                                                          “[a]ffording parties full discovery promotes the fair resolution
GAMMAGE, Justice, dissenting.
                                                                          of disputes by the judiciary.” State v. Lowry, 802 S.W.2d 669,
I dissent. Today's decision departs from previous instances
                                                                          671 (Tex.1991). Today the court removes and disposes of that
where this court has provided mandamus relief to correct a
                                                                          “linchpin” and abandons enforcement of fair and adequate
wrongful denial of discovery, and labors too hard to conclude
                                                                          discovery. Because I believe that mandamus relief should be
that appeal is an adequate remedy for a party who is denied
                                                                          readily available when a court allows either too much or too
adequate discovery.
                                                                          little discovery, I dissent.



Footnotes
1      St. Paul contends that the Walkers' request for mandamus relief is barred by laches since the Walkers delayed almost two years before
       seeking to compel production. Because we find that the Walkers have failed to establish the requirements for mandamus relief, we
       do not reach this issue.
2      The court also sustained Aetna's motion to quash, holding that the discovery requested was improper under the investigation
       exemption, the attorney-client privilege, and the work-product privilege. The Walkers do not complain to us about this ruling.
3      Even if no evidence had been presented, the Walkers would have had the burden of filing an affidavit so stating. See Barnes v.
       Whittington, 751 S.W.2d 493, 495 (Tex.1988) (“The undisputed fact that no testimony was adduced at any of the hearings, as set
       forth in the affidavit of relator's counsel, satisfies the relator's burden under Rule 121.”).
4      The records sought in Russell included, among others:
            (2) All appointment books maintained by [the expert physician] during 1969;
            (3) All statements, listings, ledgers, or other books showing the accounts receivable of [the expert physician] during 1969;
            (4) All deposit slips or tickets showing deposits into bank accounts of [the expert physician] during 1969;
            (5) All statements, listings, ledgers, journals, or other books showing receipt of payments, either in cash, by check or by any
            other means [by the expert physician] during 1969;
            (6) All statements of account or bills for services rendered [by the expert physician] during 1969;
            (7) All accounting ledgers, journals or other books of account of [the expert physician] maintained during 1969; and
            (8) All financial statements showing income and expenses of [the expert physician] during 1969.
          452 S.W.2d at 435.
5      Evidence of bias is not admissible if the witness “unequivocally admits such bias or interest” at trial. Tex.R.Civ.Evid. 613(b). To date,
       however, Dr. Gilstrap has not admitted any bias, but rather has flatly denied it. In this situation, such evidence should be discoverable.
6      We do not decide whether the documents were properly discoverable, only that the trial court erred in denying discovery based
       solely on Russell. If the Walkers sought the documents solely to attack the credibility of Dr. Gilstrap by showing that his deposition
       testimony was untrue, for instance, the information would probably not be reasonably calculated to lead to the discovery of admissible




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Walker v. Packer, 827 S.W.2d 833 (1992)


      evidence. See Tex.R.Civ.Evid. 608(b). (“Specific instances of the conduct of a witness [other than criminal convictions], for the
      purpose of attacking ... his credibility, may not be ... proved by extrinsic evidence.”).
7     Additionally, this Court will not grant mandamus relief unless we determine that the error is of such importance to the jurisprudence of
      the state as to require correction. Cf. Tex.Gov't Code § 22.001(a)(6); Tex.R.App.P. 140(b). This issue, however, is properly resolved
      in deciding whether to grant leave to file the petition, not in its disposition.
8     See, e.g., TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991) (imposition of discovery sanctions); Schultz
      v. Fifth Judicial District Court of Appeals, 810 S.W.2d 738, 739 n. 4 (Tex.1991) (refusal to enforce turnover order by contempt);
      Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex.1991) (refusal to bar judicial officer from testifying as expert witness); Hooks
      v. Fourth Court of Appeals, 808 S.W.2d 56, 59–60 (Tex.1991) (refusal to grant nonsuit); Bell Helicopter Textron, Inc., v. Walker,
      787 S.W.2d 954, 955 (Tex.1990) (refusal to dismiss for lack of subject-matter jurisdiction); Champion Int'l Corp. v. Twelfth Court
      of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (grant of new trial); Stringer v. Eleventh Court of Appeals, 720 S.W.2d 801, 801–02
      (Tex.1986) (imposition of discovery sanction); Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (grant of new
      trial); Abor v. Black, 695 S.W.2d 564, 566 (Tex.1985) (denial of plea in abatement); State v. Walker, 679 S.W.2d 484, 485 (Tex.1984)
      (refusal to reinstate temporary injunction); Pat Walker & Co. v. Johnson, 623 S.W.2d 306, 309 (Tex.1981) (refusal to extend time
      for filing statement of facts); State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (refusal to suspend attorney); Pope v.
      Ferguson, 445 S.W.2d 950, 953 (Tex.1969) (refusal to dismiss criminal case pending against relator), cert. denied, 397 U.S. 997,
      90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Crane v. Tunks, 160 Tex. 182, 190, 328 S.W.2d 434, 439 (1959) (discovery order); Iley v.
      Hughes, 158 Tex. 362, 367–68, 311 S.W.2d 648, 652 (1958) (bifurcation of trial); Harrell v. Thompson, 140 Tex. 1, 1, 165 S.W.2d
      81, 81 (1942) (restriction of oil and gas production by Railroad Commission); Ben C. Jones & Co. v. Wheeler, 121 Tex. 128, 130, 45
      S.W.2d 957, 958 (1932) (refusal to enter judgment nunc pro tunc); Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (1926)
      (refusal to enter judgment); Aycock v. Clark, 94 Tex. 375, 376–77, 60 S.W. 665, 666 (1901) (refusal to enter injunction); Screwmen's
      Benevolent Ass'n v. Benson, 76 Tex. 552, 555, 13 S.W. 379, 380 (1890) (expulsion of member from charitable corporation).
9     We recently held that a mandamus action was never required to preserve error on appeal. Pope v. Stephenson, 787 S.W.2d 953
      (Tex.1990). We explained: “The decision not to pursue the extraordinary remedy of mandamus does not prejudice or waive a party's
      right to complain on appeal.” Id. at 954.
10    Courts use a similar approach in determining whether a witness has properly invoked the Fifth Amendment privilege against self-
      incrimination. It is often impossible for a witness to prove that an answer might incriminate him without actually answering and
      thereby forfeiting the privilege. Therefore, rather than requiring actual proof of the privilege, courts sustain the privilege if it is
      “evident from the implications of the question, in the setting in which it is asked, that a responsive answer [might be incriminating].”
      Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).
1     If the records have relevance apart from their potential for impeachment, however, Russell does not bar discovery. See Ex Parte
      Shepperd, 513 S.W.2d 813, 816 (Tex.1974).
1     Billie Holiday, God Bless the Child (Okeh Records 1941) (words and music by Arthur Herzog, Jr. & Billie Holiday).
2     These entities rarely need information to prevail:
            Even when an institutional litigant appears as a plaintiff suing an individual defendant as, for example, when a corporation sues
            an individual on a debt, the institutional litigant tends to already have the information needed to prove its case.
         Review of Discovery Orders at 1070 n. 162. They are also less likely to require information from an opponent to establish affirmative
         defenses. Id. at 1070.
3     With no appellate opinions setting forth appropriate limitations upon trial court discretion, “litigants may receive widely divergent
      rulings from different judges, even in the same geographical location.” Id. at 1077. Proper use of mandamus discourages forum
      shopping to obtain a trial judge more likely to provide a more favorable ruling and allows for greater consistency and accountability:
            [Such] review ... even[s] out inconsistencies in trial court rulings, and ... allows trial judges to operate with a more accurate
            understanding of the meaning of the discovery rules.... If the appellate court is consistent, it can fix disparities and inequities
            produced by the trial courts and promote consistency among the trial level decisionmakers.
         Id. at 1047, 1077 (footnotes omitted).
4     Intermediate appellate courts have also recognized the importance of mandamus to avoid trial court abuse in improperly limiting or
      denying discovery. See, e.g., Kentucky Fried Chicken Nat'l Mgmt. Co. v. Tennant, 782 S.W.2d 318 (Tex.App.—Houston [1st Dist.]
      1989, orig. proceeding) (writ granted when discovery of plaintiff's psychiatric records denied); Foster v. Heard, 757 S.W.2d 464
      (Tex.App.—Houston [1st Dist.] 1988, orig. proceeding) (mandamus issued against trial court's denial of discovery of post-accident
      investigation report); Super Syndicate, Ltd. v. Salazar, 762 S.W.2d 749 (Tex.App.—Houston [14th Dist.] 1988, orig. proceeding)
      (granting mandamus against trial court's denial of discovery of claims investigator's files); Goodspeed v. Street, 747 S.W.2d 526
      (Tex.App.—Fort Worth 1988, orig. proceeding) (trial court's denial of discovery of hospital records based on privilege without
      presentation of evidence overturned); Estate of Gilbert v. Black, 722 S.W.2d 548, 551 (Tex.App.—Austin 1987, orig. proceeding)



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Walker v. Packer, 827 S.W.2d 833 (1992)


      (denial of discovery of insurer's internal communications overturned on mandamus, despite argument that “mandamus is proper
      only [for] improperly ordered discovery of privileged material, not when the trial court has denied discovery.”); Essex Crane Rental
      Corp. v. Kitzman, 723 S.W.2d 241 (Tex.App.—Houston [1st Dist.] 1986, orig. proceeding) (writ granted to correct trial court's order
      quashing deposition); Velasco v. Haberman, 700 S.W.2d 729, 730 (Tex.App.—San Antonio 1985, orig. proceeding) (mandamus
      appropriate “not only where the trial court order improperly grants discovery, but the writ may also issue where the trial court
      improperly limits or denies discovery.”); Aztec Life lns. Co. v. Dellana, 667 S.W.2d 911 (Tex.App.—Austin 1984, orig. proceeding)
      (mandamus issued against trial court for denying discovery of claims files).
5     The majority identifies by name five cases in conflict with today's writing, declaring that: “We disapprove of Barker and Allen, and
      any other authorities,” at 842, and “[we] disapprove of Cleveland, Crane, Jampole, and any other authorities,” at 842, to the extent
      they conflict with the new Walker standard. Subsumed within the “other” designation are a great number of additional cases from
      this court and the courts of appeals that would grant to the Walkers relief when the trial court has clearly abused its discretion in
      denying discovery. The court's willingness to sweepingly erase whole unidentified categories of recent precedent is exemplified by
      their signing of a blank check: “any other authorities,” meaning all other authorities, are now endangered.
6     The few cases citing Automatic Drilling do not expand its holding to that suggested by the court today. See Jampole, 673 S.W.2d
      at 574–75 (“We hold that discovery cannot be denied because of an asserted proprietary interest in the requested documents when
      a protective order would sufficiently preserve that interest.”); Firestone Photographs, Inc. v. Lamaster, 567 S.W.2d 273, 278
      (Tex.Civ.App.—Texarkana 1978, no writ) (“[T]he claim of trade secrets ... does not necessarily defeat the right of discovery.”).
7     James B. Sales, Pretrial Discovery in Texas Under the Amended Rules: Analysis and Commentary, 27 S.Tex.L.Rev. 305, 345–46
      (1986), stating that:
            Trade secrets ... are not, per se, exempt from discovery. The trial court is obligated to weigh the need for discovery against the
            interests on secrecy.... The need to protect the confidentiality of documents does not constitute an absolute bar to discovery....
8     Although also citing General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex.1983, orig. proceeding), as allowing mandamus relief
      from an allegedly burdensome trial court discovery order, the majority fails to note the very expansive discovery permitted in that
      case. The efforts of General Motors to limit discovery to results from tests performed on the particular type of truck and the particular
      type of impact involved in the subject incident were rejected, and it was directed to supply all impact test results for all types of
      trucks manufactured over a 23–year period.
9     If the trial court “refuses to make [the discovery] part of the record,” At 843, presumably the only relief accorded under today's
      standard would be issuance of a writ directing inclusion of these materials.
10    See Caller Times Publishing Co. v. Triad Communications, 826 S.W.2d 576, 597–608 (Tex.1992) (Doggett, J., dissenting) (addressing
      court's refusal to allow evidence of predatory intent); see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 527
      (Tex.1990) (Doggett, J., dissenting); Crim Truck & Tractor Co. v. Navistar Int'l Transp. Co., 823 S.W.2d 591, 596 & n. 1 (Tex.1992)
      (Mauzy, J., dissenting); Reagan v. Vaughn, 804 S.W.2d 463, 488 (Tex.1990) (Doggett, J., concurring and dissenting).
11
                                                              Supreme Court Filings
       Year        Mandamus                  All                      Total Mandamus                          Discovery
                   Discovery                 Mandamus                 and Applications                        as Percentage
                   Orders                    Filings                  for Writ                                of Total
       1979                    24                       129                              933                                  2.6%
       1981                    17                       98                               943                                  1.8%
       1989                    51                       257                              1078                                 4.7%
       1991                    64                       202                              1257                                 5.1%


       Interlocutory Review of Discovery Orders at 1058–59; the 1989 and 1991 figures are derived from my review of court filings.


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                        21
2/18/2015                                           CIVIL PRACTICE AND REMEDIES CODE CHAPTER 51. APPEALS

   
                                                        
                                              CIVIL PRACTICE AND REMEDIES CODE

                                         TITLE 2. TRIAL, JUDGMENT, AND APPEAL

                                                              SUBTITLE D. APPEALS

                                                              CHAPTER 51. APPEALS

                                    SUBCHAPTER A. APPEALS FROM JUSTICE COURT

       Sec. 51.001.  APPEAL FROM JUSTICE COURT TO COUNTY OR DISTRICT 
  COURT.  (a)  In a case tried in justice court in which the judgment or 
  amount in controversy exceeds $250, exclusive of costs, or in which 
  the appeal is expressly provided by law, a party to a final judgment 
  may appeal to the county court.
       (b)  In a county in which the civil jurisdiction of the county 
  court has been transferred to the district court, a party to a final 
  judgment in a case covered by this section may appeal to the district 
  court.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
  Amended by: 
       Acts 2007, 80th Leg., R.S., Ch. 553 (S.B. 1413), Sec. 2, eff. 
  September 1, 2007.


       Sec. 51.002.  CERTIORARI FROM JUSTICE COURT.  (a)  After final 
  judgment in a case tried in justice court in which the judgment or 
  amount in controversy exceeds $250, exclusive of costs, a person may 
  remove the case from the justice court to the county court by writ of 
  certiorari.
       (b)  In a county in which the civil jurisdiction of the county 
  court has been transferred from the county court to the district 
  court, a person may remove a case covered by this section from the 
  justice court to the district court by writ of certiorari.
       (c)  If a writ of certiorari to remove a case is served on a 
  justice of the peace, the justice shall immediately make a certified 
  copy of the entries made on his docket and of the bill of costs, as 
  provided in cases of appeals, and shall immediately send them and the 

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  original papers in the case to the clerk of the county or district 
  court, as appropriate.
       (d)  This section does not apply to a case of forcible entry and 
  detainer.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
  Amended by: 
       Acts 2007, 80th Leg., R.S., Ch. 553 (S.B. 1413), Sec. 3, eff. 
  September 1, 2007.


                        SUBCHAPTER B. APPEALS FROM COUNTY OR DISTRICT COURT

       Sec. 51.011.  APPEAL FROM COUNTY OR DISTRICT COURT AFTER 
  CERTIORARI FROM JUSTICE COURT.  If a county or district court hears a 
  case on certiorari from a justice court, a person may take an appeal 
  or writ of error from the judgment of the county or district court.  
  The appeal or writ of error is subject to the rules that apply in a 
  case appealed from a justice court.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


       Sec. 51.012.  APPEAL OR WRIT OF ERROR TO COURT OF APPEALS.  In a 
  civil case in which the judgment or amount in controversy exceeds 
  $250, exclusive of interest and costs, a person may take an appeal or 
  writ of error to the court of appeals from a final judgment of the 
  district or county court.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.
  Amended by: 
             Acts 2009, 81st Leg., R.S., Ch. 1351 (S.B. 408), Sec. 1, eff. 
  September 1, 2009.


             Sec. 51.013.  TIME FOR TAKING WRIT OF ERROR TO COURT OF APPEALS.  
  In a case in which a writ of error to the court of appeals is allowed, 
  the writ of error may be taken at any time within six months after the 
  date the final judgment is rendered.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


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       Sec. 51.014.  APPEAL FROM INTERLOCUTORY ORDER.  (a)  A person may 
  appeal from an interlocutory order of a district court, county court 
  at law, statutory probate court, or county court that:
                       (1)  appoints a receiver or trustee;
                       (2)  overrules a motion to vacate an order that appoints a 
  receiver or trustee;
           (3)  certifies or refuses to certify a class in a suit 
  brought under Rule 42 of the Texas Rules of Civil Procedure;
           (4)  grants or refuses a temporary injunction or grants or 
  overrules a motion to dissolve a temporary injunction as provided by 
  Chapter 65;
           (5)  denies a motion for summary judgment that is based on an 
  assertion of immunity by an individual who is an officer or employee 
  of the state or a political subdivision of the state;
           (6)  denies a motion for summary judgment that is based in 
  whole or in part upon a claim against or defense by a member of the 
  electronic or print media, acting in such capacity, or a person whose 
  communication appears in or is published by the electronic or print 
  media, arising under the free speech or free press clause of the First 
  Amendment to the United States Constitution, or Article I, Section 8, 
  of the Texas Constitution, or Chapter 73;
           (7)  grants or denies the special appearance of a defendant 
  under Rule 120a, Texas Rules of Civil Procedure, except in a suit 
  brought under the Family Code;
           (8)  grants or denies a plea to the jurisdiction by a 
  governmental unit as that term is defined in Section 101.001;
           (9)  denies all or part of the relief sought by a motion 
  under Section 74.351(b), except that an appeal may not be taken from 
  an order granting an extension under Section 74.351;
           (10)  grants relief sought by a motion under Section 
  74.351(l);
           (11)  denies a motion to dismiss filed under Section 90.007; 
  or
   
    Text of subdivision as added by Acts 2013, 83rd Leg., R.S., Ch. 44, 
                                                                    Sec. 1

   

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           (12)  denies a motion for summary judgment filed by an 
  electric utility regarding liability in a suit subject to Section 
  75.0022
   
   Text of subdivision as added by Acts 2013, 83rd Leg., R.S., Ch. 1042, 
                                   Sec. 4

   
                       (12)  denies a motion to dismiss filed under Section 27.003.
   
    Text of subsection as amended by Acts 2013, 83rd Leg., R.S., Ch. 1042 
                             (H.B. 2935), Sec. 4

   
       (b)  An interlocutory appeal under Subsection (a), other than an 
  appeal under Subsection (a)(4), stays the commencement of a trial in 
  the trial court pending resolution of the appeal.  An interlocutory 
  appeal under Subsection (a)(3), (5), (8), or (12) also stays all other 
  proceedings in the trial court pending resolution of that appeal.
   
    Text of subsection as amended by Acts 2013, 83rd Leg., R.S., Ch. 916 
                                                              (H.B. 1366), Sec. 1

   
             (b)  An interlocutory appeal under Subsection (a), other than an 
  appeal under Subsection (a)(4) or in a suit brought under the Family 
  Code, stays the commencement of a trial in the trial court pending 
  resolution of the appeal.  An interlocutory appeal under Subsection 
  (a)(3), (5), or (8) also stays all other proceedings in the trial 
  court pending resolution of that appeal.
       (c)  A denial of a motion for summary judgment, special 
  appearance, or plea to the jurisdiction described by Subsection (a)
  (5), (7), or (8) is not subject to the automatic stay under Subsection 
  (b) unless the motion, special appearance, or plea to the jurisdiction 
  is filed and requested for submission or hearing before the trial 
  court not later than the later of:
           (1)  a date set by the trial court in a scheduling order 
  entered under the Texas Rules of Civil Procedure;  or
           (2)  the 180th day after the date the defendant files:
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                                (A)  the original answer;
                                (B)  the first other responsive pleading to the 
  plaintiff's petition;  or
               (C)  if the plaintiff files an amended pleading that 
  alleges a new cause of action against the defendant and the defendant 
  is able to raise a defense to the new cause of action under Subsection 
  (a)(5), (7), or (8), the responsive pleading that raises that defense.
       (d)  On a party's motion or on its own initiative, a trial court 
  in a civil action may, by written order, permit an appeal from an 
  order that is  not otherwise appealable if:
           (1)  the order to be appealed involves a controlling question 
  of law as to which there is a substantial ground for difference of 
  opinion; and
           (2)  an immediate appeal from the order may materially 
  advance the ultimate termination of the litigation.
       (d­1)  Subsection (d) does not apply to an action brought under 
  the Family Code.
       (e)  An appeal under Subsection (d) does not stay proceedings in 
  the trial court unless:
           (1)  the parties agree to a stay; or
           (2)  the trial or appellate court orders a stay of the 
  proceedings pending appeal.
       (f)  An appellate court may accept an appeal permitted by 
  Subsection (d) if the appealing party, not later than the 15th day 
  after the date the trial court signs the order to be appealed, files 
  in the court of appeals having appellate jurisdiction over the action 
  an application for interlocutory appeal explaining why an appeal is 
  warranted under Subsection (d).  If the court of appeals accepts the 
  appeal, the appeal is governed by the procedures in the Texas Rules of 
  Appellate Procedure for pursuing an accelerated appeal.  The date the 
  court of appeals enters the order accepting the appeal starts the time 
  applicable to filing the notice of appeal.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by 
  Acts 1987, 70th Leg., ch. 167, Sec. 3.10, eff. Sept. 1, 1987;  Acts 
  1989, 71st Leg., ch. 915, Sec. 1, eff. June 14, 1989;  Acts 1993, 73rd 
  Leg., ch. 855, Sec. 1, eff. Sept. 1, 1993;  Acts 1997, 75th Leg., ch. 
  1296, Sec. 1, eff. June 20, 1997;  Acts 2001, 77th Leg., ch. 1389, 

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  Sec. 1, eff. Sept. 1, 2001;  Acts 2003, 78th Leg., ch. 204, Sec. 1.03, 
  eff. Sept. 1, 2003.
  Amended by: 
       Acts 2005, 79th Leg., Ch. 97 (S.B. 15), Sec. 5, eff. September 1, 
  2005.
       Acts 2005, 79th Leg., Ch. 1051 (H.B. 1294), Sec. 1, eff. June 18, 
  2005.
       Acts 2005, 79th Leg., Ch. 1051 (H.B. 1294), Sec. 2, eff. June 18, 
  2005.
       Acts 2011, 82nd Leg., R.S., Ch. 203 (H.B. 274), Sec. 3.01, eff. 
  September 1, 2011.
       Acts 2013, 83rd Leg., R.S., Ch. 44 (H.B. 200), Sec. 1, eff. May 
  16, 2013.
       Acts 2013, 83rd Leg., R.S., Ch. 604 (S.B. 1083), Sec. 1, eff. 
  September 1, 2013.
       Acts 2013, 83rd Leg., R.S., Ch. 916 (H.B. 1366), Sec. 1, eff. 
  September 1, 2013.
       Acts 2013, 83rd Leg., R.S., Ch. 961 (H.B. 1874), Sec. 1, eff. 
  September 1, 2013.
       Acts 2013, 83rd Leg., R.S., Ch. 1042 (H.B. 2935), Sec. 4, eff. 
  June 14, 2013.


       Sec. 51.015.  COSTS OF APPEAL.  In the case of an appeal brought 
  pursuant to Section 51.014(6), if the order appealed from is affirmed, 
  the court of appeals shall order the appellant to pay all costs and 
  reasonable attorney fees of the appeal;  otherwise, each party shall 
  be liable for and taxed its own costs of the appeal.

  Added by Acts 1993, 73rd Leg., ch. 855, Sec. 1, eff. Sept. 1, 1993.


       Sec. 51.016.  APPEAL ARISING UNDER FEDERAL ARBITRATION ACT.  In a 
  matter subject to the Federal Arbitration Act (9 U.S.C. Section 1 et 
  seq.), a person may take an appeal or writ of error to the court of 
  appeals from the judgment or interlocutory order of a district court, 
  county court at law, or county court under the same circumstances that 
  an appeal from a federal district court's order or decision would be 
  permitted by 9 U.S.C. Section 16.


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  Added by Acts 2009, 81st Leg., R.S., Ch. 820 (S.B. 1650), Sec. 1, eff. 
  September 1, 2009.



                                           




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