
NO. 07-00-0105-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 10, 2000

______________________________


WILLIAM CASH LOVE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 64th DISTRICT COURT OF SWISHER COUNTY;

NO. B3249-9907CR; HONORABLE JACK MILLER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTION TO SUSPEND OPERATION OF TEX. R. APP. P. 21.8
	Appellant William Cash Love applies by motion for this court to suspend operation
of Texas Rule of Appellate Procedure 21.8 (1) and to thereby extend the time for the trial
court to rule on his Amended Motion for New Trial before it is overruled by operation of
law.  We deny the motion.
FACTUAL AND PROCEDURAL BACKGROUND
	Appellant alleges by a motion filed with the clerk of this court on April 13, 2000, that
sentence was imposed in this matter on January 29, 2000.  He further alleges that notice
of appeal was timely filed, motion for new trial and amended motion for new trial were
timely filed, and that hearing was held on the amended motion for new trial on April 12,
2000.  In his motion, appellant alleges that attorneys for the State and appellant agreed
to a schedule for presenting a transcript of the hearing on the motion for new trial and
briefs respecting positions of the parties to the trial court, and that the trial court accepted
the agreement in lieu of making a ruling on appellant's motion for new trial at the time of
the hearing on April 12, 2000.  The agreed schedule provided for the trial court to rule on
appellant's amended motion for new trial sometime after May 15, 2000.  
	Rule 21.8(a) and (c) result in appellant's amended motion for new trial having been
overruled by operation of law upon the expiration of 75 days following January 29, 2000,
when sentence was imposed, unless the trial court ruled on the motion within such 75-day
period.  The 75-day period expired on April 13, 2000.  


LAW
	In Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App. 1998), the Court of Criminal
Appeals considered a cause in which the court of appeals suspended the provisions of
then Rule 31(a)(1) which required a motion for new trial to be filed within 30 days after
sentencing of the defendant.  The suspension was under provisions of Rule 2(b), which
was the predecessor rule to current Rule 2.  The suspension was based on "good cause"
in that appellant Oldham had allegedly been deprived of counsel in violation of her
constitutional rights, and had not filed a motion for new trial in regard to her forgery
conviction. The court of appeals abated and remanded the case so that appellant could
file a motion for new trial to assert the constitutional violation.  Oldham v. State, 977
S.W.2d at 355-57.  The Court of Criminal Appeals, in reversing the decision of the court
of appeals, stated that 
	In essence, the Court of Appeals used Rule 2(b) to extend the time limit for
the filing of the appellant's motion for a new trial some two years and eight
months, this being the time from the appellant's sentencing to the date of the
Court of Appeals' decision. . . .  We believe the Court of Appeals was in error
to rely on Rule 2(b) as a mechanism to extend the time limits for the filing of
a motion for a new trial imposed by Rule 31(a)(1). . . .  Rule 2(b) is in
essence an escape valve to be used by an appellate court when a case
becomes unduly stalled or delayed in the appellate process due to
procedural rules, and the interests of justice compel speeding up the
process; although Rule 2(b) may be used to shorten the time limits when
justice so requires, it should not be used as a method to lengthen procedural
time limits absent truly extraordinary circumstances, even in an effort to
protect the substantive rights of litigants.  Oldham v. State, 977 S.W.2d at
356, 360.

	In State v. Riewe, No. 699-99 (Tex.Crim.App. Mar. 8, 2000), the court reiterated its
statements in Oldham to the effect that Rule 2 is not to be used to enlarge timeframes
established by the appellate rules for appeals: "[Rule 2] was not intended to be used to
lengthen procedural time limits, even in an effort to protect the substantive rights of
litigants."
ANALYSIS
	Granting appellant's motion would expand the time limits established by the TRAP
for appellant's appeals process.  As Rule 2 has been interpreted in Oldham and Riewe,
we cannot suspend the operation of Rule 21.8 and extend the time for the trial court to rule
on appellant's amended motion for new trial under the circumstances presented by
appellant.  Thus, assuming appellant, the State, and the trial judge agreed on the proposal
as described in appellant's motion, we still must, and therefore do, deny appellant's
motion.    	
									Per Curiam

Do not publish.
1. Further references to the rules of appellate procedure will be by reference to "Rule"
or "TRAP."


ues
one, two, and three are sustained as to Meathenia and the Order of Dismissal is reversed
as to her.
Armstrong County Defendants

	By their first three issues, the Woods contend the trial court erred by dismissing
Armstrong County without a trial on the merits and because § 89.0041 of the Local
Government Code was not applicable to this case.  We disagree.
	Although the trial court's order of dismissal purports to be based upon the Plea to the
Jurisdiction (2) and not the Motion to Dismiss, a basis which we reject hereinbelow, this Court
must affirm that order if there is any legal theory supported by the evidence upon which that
decision could be affirmed. Seaman v. Seaman, 425 S.W.2d 339 (Tex. 1968); Porras v.
Maldonado, 2006 WL 3017196, *1 (Tex.App.--San Antonio 2006, no pet.).  Therefore,
although contrary to the express statement in the order, we must affirm the decision of the
trial court if it is supported by either the Plea to the Jurisdiction or the Motion to Dismiss. 
Plea to the Jurisdiction

	Armstrong County's Plea to the Jurisdiction asserted that the Woods' claims were
barred by sovereign immunity.  The Woods contend that sovereign immunity was either not
applicable or impliedly waived by the Uniform Declaratory Judgments Act (UDJA).  A plea
to the jurisdiction is a dilatory plea by which a party challenges a trial court's subject matter
jurisdiction.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  We review
de novo the trial court's ruling on a plea to the jurisdiction.  Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d
922, 928 (Tex. 1998).
	By their pleadings, the Woods sought only declaratory relief and attorney's fees. 
Armstrong County objected to the trial court's exercise of subject matter jurisdiction on two
grounds, to-wit: (1) Armstrong County is protected from suit by governmental immunity, and
(2) the cause of action does not fall within any waiver of that immunity.  Private parties may
seek declaratory relief against government officials acting within their official capacity
whenever it is not a veiled attempt to subject the State to liability.  Texas Natural Resource
Conservation Com'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).  Therefore, certain
declaratory judgment actions against government officials simply do not implicate the
sovereign immunity doctrine.  Id., citing Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709,
712 (1945).
	During the hearing for temporary injunctive relief, the trial court heard testimony from
several witnesses, all who testified that Armstrong County had not performed any
maintenance to the disputed road for many years.  Armstrong County Judge Hugh Reed
testified that during the seventeen years he had been a judge, the County had not
maintained the disputed road.  He also testified that during a hearing before the
Commissioners' Court to determine whether to place the disputed road on the official county
map, the Court decided there was no written record or other information documenting that
the County had ever continuously maintained the road beginning before September 1,
1981, as required by statute.  See Tex. Transp. Code Ann. § 258.002(b) & (h) (Vernon
Supp. 2006).  
	Gerald Wood testified that since at least 1980, the road had not been maintained by
the County.  He also testified that in the past, he and another landowner had privately
maintained the road as it deteriorated.  According to Gerald, Judge Reed suggested that
Gerald obtain a maintainer and begin grading the road.  Sheriff Walker testified that he had
never patrolled the disputed road as one of his duties to patrol county roads.  Additionally,
Connie Guffy, Trustee of the Trust that conveyed the land to Meathenia, testified the land
had been in her family for generations and she could not recall anyone ever maintaining the
road. 
	Based upon a review of the pleadings and evidence presented at the temporary
injunction hearing, we conclude the Woods were not attempting to subject Armstrong
County to monetary liability.  See IT-Davy, 74 S.W.3d at 856.  Thus, sovereign immunity
was not implicated by the pleadings in this cause and, notwithstanding the statement in the
Order of Dismissal to the contrary, the trial court could not have properly dismissed this
cause based upon the Plea to the Jurisdiction. (3)
Motion to Dismiss
	The Motion to Dismiss filed by Armstrong County contends this suit was subject to
mandatory dismissal because they did not receive notice as required by § 89.0041 of the
Texas Local Government Code Annotated (Vernon Supp. 2006).  The Woods attack the
Motion to Dismiss on two separate grounds: (1) procedural due process, and (2)
inapplicability of the statute.  They maintain the trial court committed an error of procedural
due process by entering an order of dismissal after a hearing on their temporary injunction
request, without a trial on the merits.  The Woods argue the trial court erred by failing to give
notice of its intent to consider the merits of Armstrong County's dispositive pleadings.  We
disagree as to both grounds.
	A review of the record reveals that at the conclusion of the hearing on the Woods'
request for a temporary injunction, counsel for Armstrong County began arguing the merits
of its dilatory plea to the trial court.  At that time, the Woods' counsel not only failed to
assert any objection based upon lack of notice, he engaged in arguments pertaining
thereto.  By failing to object, the Woods waived any procedural due process complaint
based upon a lack of notice.  Manning v. North, 82 S.W.3d 706, 714-15 (Tex.App.--Amarillo
2002, no pet.).  Therefore, we conclude the trial court did not err in deciding to address the
merits of the Motion to Dismiss.  
	Having determined that the trial court properly considered the Motion to Dismiss, we
arrive at the dispositional issue: Did the trial court properly dismiss the claims against
Armstrong County based upon § 89.0041 of the Local Government Code?  The Woods
contend § 89.0041 is not applicable because that section only applies to suits arising out
of a contractual dispute.  Armstrong County contends the Woods' construction of the statute
is incorrect.  We conclude § 89.0041 was correctly construed by the trial court to require
dismissal of the Woods' claims as to Armstrong County.
	In 2003, the Legislature amended the Local Government Code. (4)  Section 1 of that
act amended § 89.004, section 2 amended § 262.007, section 3 added § 89.0041, and
section 4 provided an effective date of September 1, 2003, and added a legislative note
which provides:
	(b) This Act applies only to a claim arising under a contract executed on or 
after September 1, 2003.  A claim that arises under a contract executed
before September 1, 2003, is governed by the law as it existed on the date
the contract is executed, and the former law is continued in effect for that
purpose.  

The question arises, does this legislative note limit application of § 89.0041 to claims based
upon a contractual cause of action?  The Woods and Armstrong County agree this statutory
construction issue has not heretofore been decided.
 When we construe a statute, our primary goal is to ascertain and give effect to the
Legislature's intent in enacting it.  Tex. Gov't Code Ann. § 312.005 (Vernon 2005); In re
Canales, 52 S.W.3d 698, 702 (Tex. 2001).  Legislative enactments are to be liberally
construed so as to achieve their purpose and to promote justice.  Tex. Gov't Code Ann. §
312.006 (Vernon 2005).  Where language in a statute is clear and unambiguous, we must
seek the intent of the Legislature as found in the plain and common meaning of the words
and terms used by the Legislature within the context of the entire statute.  Monsanto Co.
v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993); Rosa v. Caldwell, 159
S.W.3d 695, 700 (Tex.App.--Amarillo 2004, pet. denied).
	In construing a statute, whether or not the statute is considered ambiguous on its
face, a court may consider the object sought to be attained, the circumstances under which
the statute was enacted, the statute's legislative history, the common law or former statutory
provisions, the consequences of a particular construction, the administrative construction
of the statute, as well as the title, preamble, or emergency provisions of the enactment. 
Tex. Gov't Code Ann. § 311.023 (Vernon 2005).
	In construing § 89.0041, we note the statute itself is clear and unambiguous. 
Subsections (a) and (b) of the newly enacted section provide that written notice of specific
information is to be given by a specified time, to certain named individuals, in a particular
manner, whenever suit is filed against a county or a person sued in their capacity as a
county official.  Subsection (c) of that section provides that a court shall dismiss such a
proceeding if the person filing the suit does not give notice as required by subsections (a)
and (b).  The plain meaning of these provisions is easily understood.  What is ambiguous
is whether the comment following the code provision was intended to limit the requirements
of § 89.0041 to claims arising under a contract.  
	Comments following code provisions, while persuasive authority concerning the
interpretation of statutory language, are not law.  Lockhart Sav. & Loan Ass'n v.
RepublicBank Austin, 720 S.W.2d 193, 195 (Tex.App.--Austin 1986, writ ref'd n.r.e.). 
Therefore, a legislative comment cannot be construed as altering the clear and
unambiguous language of the statute.
	While this legislative note could have been more specific, having reviewed the
legislative enactment in its entirety, and having construed the comment consistent with an
interpretation that would not alter a clear and unambiguous reading of the statute, we
conclude the note was intended to clarify that, to the extent that a claim arises under a
contract, the provisions of the act amending the Local Government Code and adding §
89.0041 apply only to contracts executed on or after September 1, 2003.  Stated differently,
those provisions apply to all causes of action other than causes of action which arise out
of contracts entered into prior to September 1, 2003.  We conclude the trial court correctly
construed the provisions of § 89.0041 as being applicable to the claims being asserted by
the Woods.  Because they did not comply with the specific provisions of § 89.0041(a) and
(b), the trial court had no choice but to dismiss the suit as to Armstrong County based upon
the Motion to Dismiss and the provisions of § 89.0041(c).  Issues one, two, and three are
overruled as to Armstrong County, and the Order of Dismissal is affirmed as to Armstrong
County.
	We are mindful of the fact that Meathenia argues that if dismissal was correct as to
Armstrong County it was correct as to her because she was an indispensable party.  We
disagree.  Section 37.006(a) of the Texas Civil Practice and Remedies Code Annotated
(Vernon 1997) provides that any person having a claim or interest that would be affected
when declaratory relief is sought must be made a party.  A declaration does not prejudice
the rights of a person not a party to the proceeding.  Id.  The Supreme Court has recently
held that subject matter jurisdiction is rarely implicated by the failure to join a party in a
declaratory judgment action.  Brooks v. Northglen Ass'n, 141 S.W.3d 158, 162 (Tex. 2004). 
The trial court's dismissal as to Armstrong County does not preclude it from rendering
complete relief between the Woods and Meathenia.  
Attorney's Fees

	By their fourth issue, the Woods maintain the trial court erred in awarding attorney's
fees.  We disagree.  The Woods argue that section 38.001 of the Texas Civil Practice and
Remedies Code does not authorize recovery of attorney's fees in the underlying case and
that without a statutory provision permitting such recovery, Armstrong County and
Meathenia were not entitled to attorney's fees.
	 The underlying case brought by the Woods is a declaratory judgment action. 
Section 37.009 of the Texas Civil Practice and Remedies Code Annotated (Vernon 1997)
grants a trial court discretion to award reasonable and necessary attorney's fees as are
equitable and just in suits filed under the UDJA.  A trial court's discretion in deciding
whether to award attorney's fees in a declaratory judgment action is broadly construed and
will not be reversed absent a clear abuse of discretion.  Oake v. Collin County, 692 S.W.2d
454, 455 (Tex. 1985).  An award of attorney's fees is authorized regardless of whether a
party prevails.  See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998).  Because the
Woods did not present argument challenging the reasonableness of the award of attorney's
fees under section 37.009, we need not further address the issue.  Issue four is overruled. 
Temporary Injunction

	By their final issue, the Woods allege the trial court erred by refusing to grant their
request for temporary injunctive relief.  Because this Court has affirmed the dismissal as to
Armstrong County, our consideration on this issue is limited to the question of whether the
trial court abused its discretion in denying a temporary injunction as to Meathenia and the
actual road in use.  Denial of a request for temporary injunctive relief is based upon an
abuse of discretion standard.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex 2002);
Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).  Therefore, if there is any basis upon
which the trial court could have denied the temporary injunction, it could not have been an
abuse of discretion to deny the Woods that relief.  Davis v. Huey, 571 S.W.2d 859, 862
(Tex. 1978).
	Rule 683 of the Texas Rules of Civil Procedure requires that every order granting
injunctive relief shall be specific in its terms and describe in reasonable detail the act or acts
sought to be restrained.  Therefore, a sufficient description of the road in use is essential
to the granting of injunctive relief.  Eastex Wildlife Conservation Ass'n v. Jasper, 450
S.W.2d 904, 917-18 (Tex.Civ.App.--Beaumont 1970, writ ref'd n.r.e.).  In this case, the
Woods offered a description of the easement contained in the 1933 deed; however,
evidence was also adduced that the road in use deviated from that easement.  The Woods
offered no evidence which would describe the metes and bounds of the road in use.  It
follows that any injunction granted pertaining to the road in use would have been too vague
and general to have been enforceable.  Therefore, the trial court did not abuse its discretion
in denying temporary injunctive relief.  Issue five is overruled.
	Accordingly,  the trial court's order of dismissal and award of attorney's fees as to J.
R. Walker, Armstrong County Sheriff, Commissioners' Court of Armstrong County, Texas,
and Armstrong County, Texas is affirmed; that portion of the trial court's order dismissing the
Woods' case against Peggy Meathenia and awarding attorney's fees is reversed and the
cause is remanded to the trial court for further proceedings consistent with this opinion. 							
																				Patrick A. Pirtle
							      Justice					 
1. Sitting by assignment for the Honorable Hal Miner following entry of a voluntary
Order of Recusal signed February 25, 2005.
2. The order, in its entirety provides as follows:

Order of Dismissal

 There came on for consideration the above cause of action, and the Court, after
reviewing the pleadings, motions, arguments, and authorities presented by counsel, finds the
following:


		That the evidence shows that the Armstrong County Commissioner's Court,
in considering the application of Gerald Wood, et al., and the protestations
of same, was acting within its authority and did not abuse its discretion.
 		That, if the road in question was dedicated in 1913, there is no evidence that
the county ever undertook to maintain it as a county road and, if it did such,
dedication was long ago abandoned.

 
		IT IS, THEREFORE, ORDERED by the Court that the relief requested by Plaintiff is
hereby denied, that the Temporary Injunction previously entered is hereby Ordered dissolved,
and, pursuant to the requests for dismissal for lack of jurisdiction (emphasis added) filed in
the answer of Defendants Armstrong County and its officials, that the above-styled and
numbered cause be, and the same is hereby, dismissed without prejudice as to all parties,
and

		IT IS FURTHER ORDERED THAT Defendants Armstrong County Commissioner's
Court, J. R. Walker, and Armstrong County recover their reasonable and necessary
attorney's fees in the sum of $3,605.90, to be paid by the Plaintiffs, and

		IT IS FURTHER ORDERED THAT Defendant Peggy Meathenia recover her
reasonable and necessary attorney's fees in the sum of $6,000.00, to be paid by the
Plaintiffs.

		For which judgment execution may issue.
3. In expressing this opinion, we make no determination as to whether the UDJA
impliedly waived sovereign immunity in the underlying case.  See Cobb, 190 S.W.2d at 712
(expressing no opinion on the Court of Civil Appeals' holding that the UDJA grants
permission to sue in an action against the State).  But see, City of LaPorte v. Barfield, 898
S.W.2d 288, 297 (Tex. 1995) (noting that although waiver of immunity is not expressed in
so many words in the UDJA, no other reasonable intent can be discerned); Texas Educ.
Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994) (holding that governmental immunity
for attorney's fees is waived for actions brought against governmental entities under the
UDJA).
4. See Act of May 29, 2003, 78th Leg., R.S., ch. 1203, §§ 1 - 4, 2003 Tex. Gen. Laws
3418.
