      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00811-CV



Appellant, Harris County Hospital District // Cross-Appellants, Public Utility Commission
        of Texas and Southwestern Bell Telephone Company d/b/a AT&T Texas

                                                 v.

Appellees, Public Utility Commission of Texas and Southwestern Bell Telephone Company
          d/b/a AT&T Texas // Cross-Appellee, Harris County Hospital District


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
       NO. D-1-GN-15-005808, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                                          OPINION


               This is a suit for judicial review pursuant to the Administrative Procedure Act, Tex.

Gov’t Code §§ 2001.001–.902. The Harris County Hospital District filed a complaint with the

Public Utility Commission (PUC) contesting certain fees Southwestern Bell Telephone Company

charged its telecommunications customers in the 1990s. Southwestern Bell’s successor in interest,

AT&T, contends the fee dispute was resolved by a class-action settlement in 2000. The PUC

ultimately dismissed the complaint, holding the Hospital District’s claims barred by res judicata due

to the class-action settlement. The district court reversed that order, holding that the Hospital

District is not bound by the settlement because it was not represented in that action in accordance

with Section 281.056(b-1) of the Health and Safety Code, which requires a county or district attorney

to represent certain hospital districts “in all legal matters.” See Tex. Health & Safety Code
§ 281.056(b-1)(2) (requiring such representation in any county “with population of 3.4 million or

more”). We agree with AT&T and the PUC that the Hospital District is bound by the disputed

settlement decree. We will therefore reverse the district court’s order and render judgment

dismissing the case. See Tex. R. App. P. 43.2 (requiring this court to render the judgment the trial

court should have rendered).

                                              I
                                         BACKGROUND

                 Telecommunications utilities in Texas may charge customers a fee to recover certain

costs resulting from use of public rights of way. These “municipal fees” are governed by Section

54.206 of the Utilities Code, which allows the utility “to collect a fee that a municipality imposes

. . . through a pro rata charge to the customers [with]in the boundaries of the municipality.” Tex.

Util. Code § 54.206(b). For more than two decades, customers have alleged that Southwestern Bell

imposed excessive municipal fees throughout the 1990s, resulting in several lawsuits. Four are

relevant here.


The Mirales Settlement

                 Litigation commenced in 1998 in Cameron County when two residential customers

sued Southwestern Bell and alleged the utility had been charging excessive municipal fees since

October of 1991. The parties ultimately negotiated a cy pres class-action settlement—now known

as the Mirales Settlement—to resolve all related claims in Texas. The proposed settlement defined

the putative class as:




                                                  2
        [A]ll persons and entities who currently reside in the State of Texas who subscribe,
        or formerly subscribed, to telephone service provided by [Southwestern Bell] and
        pay, or paid, to [Southwestern Bell] a municipal fee imposed pursuant to a municipal
        ordinance, other than an ordinance based on a percentage of gross receipts, and
        collected pursuant to a tariff or statute.


That definition excluded certain customers not relevant here, including employees of Southwestern

Bell and the district court.

                  The proposed settlement, once accepted by the district court, would prohibit any class

member from pursuing any claim arising from Southwestern Bell’s collection of these allegedly

excessive fees:


        “Released Claims” means any and all claims, rights, causes of action, suits, matters,
        issues, controversies, or other bases for liability, whether known or unknown, that
        have been, could have been, or that might be asserted hereafter in the Lawsuit or in
        any other court or administrative or regulatory proceeding . . . which have arisen,
        arise now, or hereafter may arise or relate in any way to the pass-through or
        collection of municipal fees in Texas, including all causes of action that are or could
        be raised under Plaintiffs’ pleadings on file herein or that consumers or customers
        could raise in relation to Southwestern Bell’s pass-through of municipal fees.


It continues, “Any member of the Settlement Class who has not properly and timely requested

exclusion from the Settlement Class shall be bound by any and all judgments, settlements, or releases

entered or approved by the Court whether favorable or unfavorable to the class.” See Tex. R. Civ.

P. 42(c)(2)(B)(v) (establishing putative class member’s right to opt out of class).

                  After allowing the parties time to notify putative class members of the proposed

settlement, the district court held two hearings on the fairness of the proposed certification and

settlement. At the first hearing, certain commercial customers objected to the putative class as too



                                                    3
variant to satisfy the commonality requirement of certification. See id. R. 42(b)(3) (requiring

common questions of law and fact to “predominate” over any individual questions). This challenge

was led by Southwestern Tariff Analyst (STA), a telecommunications billing auditor that had

attempted to intervene as named plaintiff but whose petition in intervention had been stricken on

Southwestern Bell’s motion.

               The district court continued the hearing to afford Southwestern Bell time to address

the objections to certification. The hearing resumed a week later, and the reporter’s record reflects

that STA offered to withdraw its objections and waive any right to appeal the intervention ruling if

Southwestern Bell would preserve STA’s right to bring a separate class action on behalf of

governmental and commercial customers. Southwestern Bell declined to change the class definition

but agreed not to raise res judicata or related defenses “in any class action lawsuit brought by STA

as plaintiff.” The agreement was memorialized under Rule 11 and dictated into the reporter’s record.

               The district court then certified the class and accepted the settlement proposal. On

May 4, 2000, the court’s final judgment “grant[ed] final approval to the Settlement Agreement” and

deemed it “in all respects, fair, reasonable, adequate, and in the best interests of the Settlement

Class.” The judgment indicates that all objections were “carefully considered and [were] all

overruled.” The district court later issued a judgment nunc pro tunc to correct certain typographical

and clerical errors in the final judgment.


The STA Suit

               After the Mirales Class settled its claims, STA filed a class action in 2003, proposing

to represent nearly 7,000 governmental and commercial customers with respect to any remaining

                                                 4
claims arising from the same allegedly excessive fees. See Southwestern Bell Tel. Co. v. Marketing

on Hold, Inc., 308 S.W.3d 909, 914 (Tex. 2010) (STA). The Hospital District was identified by the

class representative and separately by Southwestern Bell as one of these putative class members, but

no attorney other than class counsel appeared on behalf of the Hospital District.

                The district court eventually certified the class and the court of appeals affirmed, but

the Supreme Court of Texas reversed, holding that STA—as the only named plaintiff—had not met

its burden to show it could adequately represent the class. See Tex. R. Civ. P. 42(a) (requiring, inter

alia, a showing that “the representative parties will fairly and adequately protect the interests

of the class”); STA, 308 S.W.3d at 27 (“Although STA satisfied the typicality and

predominance requirements to be a class representative . . . it failed to establish that it is an adequate

class representative.”).


The Harris County Suit

                A series of mergers left AT&T as successor in interest to Southwestern Bell’s liability

arising from this fee dispute. Shortly after the Supreme Court of Texas overruled certification of the

STA class in 2010, the Hospital District sued AT&T in Harris County district court, reiterating the

statutory challenge to the same fees litigated in Mirales and STA. The Hospital District conceded

the similarity of the allegations but argued its claims were “carved out” of the released claims by the

Rule 11 agreement and thus that it is not bound by the Mirales Settlement. The district court did not

reach that argument, instead accepting AT&T’s response that the claims arise from a fee dispute that

falls within the PUC’s exclusive jurisdiction. See Tex. Util. Code §§ 17.157, 52.002, 54.206. It

dismissed any “claims that seek[] reimbursement of municipal charges under tariff,” and abated the

                                                    5
remaining “claims for additional damages based on Gross Negligence, Fraud and/or the Texas

Deceptive Trade Practices Act” pending the PUC’s resolution of the fee dispute. The Hospital

District apparently did not file an appeal or seek mandamus relief from the dismissal or abatement.


The PUC Complaint

                The Hospital District submitted its fee complaint to the PUC in March of 2012.

AT&T responded with a motion to dismiss and a motion for summary decision characterizing the

Hospital District’s allegations as injusticiable due to the Mirales Settlement and the doctrine of res

judicata. See Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 450 (Tex. 2007) (“Basic

principles of res judicata apply to class actions just as they do to any other form of litigation.” (citing

Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 377–79 (1996); Cooper v. Federal Reserve

Bank, 467 U.S. 867, 87 (1984); Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 432 (Tex. 2000))).

The PUC referred the question of justiciability to an administrative law judge (ALJ) at SOAH. The

ALJ denied the motion to dismiss and the motion for summary decision.

                After more than three years of litigation over the complaint filed at the PUC, the ALJ

rendered a proposal for decision recommending dismissal of the matter. He explained, “Under the

doctrine of res judicata, all of the claims asserted by [the Hospital District] in this proceeding are

barred by the Mirales Final Judgment approving the Mirales Class Action Settlement.” The PUC

subsequently adopted the proposal for decision, including its finding of facts and conclusions of law,

and issued an order dismissing the Hospital District’s complaint.

                The Hospital District sought judicial review in December of 2015, naming the PUC

as defendant. AT&T later intervened in the case. As the primary basis for its challenge to the PUC’s

                                                    6
order, the Hospital District argued that it could not have been a member of the Mirales Class because

Section 281.056 of the Health and Safety Code—as it existed at the time—provided, “The county

attorney, district attorney, or criminal district attorney, as appropriate, with the duty to represent the

county in civil matters[,] shall represent the district in all legal matters.” See Tex. Health & Safety

Code § 281.056(b) (West 1998). It is undisputed that no such attorney appeared or filed pleadings

on behalf of the District during the Mirales litigation. The district court ultimately reversed the

PUC’s final order:


        As a matter of law, pursuant to Section 281.056, Texas Health & Safety Code, [the
        Hospital District] must be represented by the county attorney unless its board opts to
        retain outside counsel. No such counsel represented [the Hospital District] in the
        Mirales lawsuit. As a legislatively-created governmental entity[,] [the Hospital
        District] cannot be part of or bound by a class[-] action lawsuit unless it takes such
        action to participate in the lawsuit. Consequently, as a matter of law, [the Hospital
        District’s] claims were not resolved by the Mirales lawsuit nor resolved by its
        final judgment.


All three parties filed timely appeal.


                                                II
                                            DISCUSSION

                The parties raise three issues on appeal. First, the Hospital District contends the

district court should have held the 20-year-old Mirales Settlement void because the released claims

arise from a fee dispute that falls within the exclusive jurisdiction of the PUC. Second, the PUC and

AT&T contends the district court erred by reversing the PUC’s order and holding the Hospital

District not bound by the Settlement’s release. Third, the Hospital District contends that, even

assuming the Mirales Settlement is not void and the Mirales Class can be construed to include the

                                                    7
Hospital District such that its claims would otherwise be barred by release or res judicata, AT&T

should be judicially estopped from urging this Court to include the Hospital District in that class.

We address these arguments in turn.


A. The Hospital District Cannot Prevail on Its Collateral Challenge.

               The Hospital District contends the Travis County district court erred by failing to hold

the Mirales Settlement void. In support, the Hospital District argues that the Harris County district

court correctly held the fee dispute within the PUC’s exclusive jurisdiction and thus that the

Cameron County district court could not have had jurisdiction over the same fee dispute during the

Mirales litigation. According to the Hospital District, without jurisdiction over the subject matter,

the Cameron County district court could not have certified the class and accepted the settlement. We

review this challenge de novo. See Gauci v. Gauci, 471 S.W.3d 899, 901 (Tex. App.—Houston [1st

Dist.] 2015, no pet.) (citing Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849,

855 (Tex. 2002)).

               We begin by noting that this is not a jurisdictional challenge raised on direct appeal.

Instead, the Hospital District collaterally challenges a twenty-year-old class-action settlement decree

resolving tens of thousands of claims filed over two decades ago. Courts generally will not entertain

collateral challenges to final orders, as the law favors finality and certainty. See Browning

v. Prostok, 165 S.W.3d 336, 345 (Tex. 2005) (citing Tice v. City of Pasadena, 767 S.W.2d 700, 703

(Tex. 1989); Crouch v. McGaw, 138 S.W.2d 94, 96 (Tex. 1940)). However, collateral challenge is

proper if the disputed judgment is allegedly void. See Browning v. Placke, 698 S.W.2d 362, 363

(Tex. 1985) (per curiam) (orig. proceeding). A judgment is void only if “the court rendering

                                                  8
judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no

jurisdiction to enter the particular judgment, or no capacity to act.” PNS Stores, Inc., 379 S.W.3d 267,

272 (Tex. 2012) (citing Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010)).

                As the Supreme Court of Texas recently noted, “the traditional doctrine was that a

judgment of a court shown to have lacked subject matter jurisdiction was void” such that no further

inquiry was necessary to resolve the collateral challenge. Engelman Irrigation Dist. v. Shields Bros.,

Inc., 514 S.W.3d 746, 752 (Tex. 2017) (quoting Restatement (Second) of Judgments § 12 cmts. a, b

(Am. Law. Inst. 1982)) (internal quotation marks omitted). However, the Restatement adopts a

“‘modern rule on conclusiveness of determinations of subject matter jurisdiction . . . giv[ing] finality

substantially greater weight.’” Id. The Engelman Court made these observations while considering

whether to hold a twenty-year-old judgment void based on retroactive application of more recent

precedent on sovereign immunity—a doctrine well established as implicating jurisdiction over

subject matter. Id. at 748. After explaining that the modern approach would bar this attempted

collateral challenge due to the need for finality in the dispute, the Court ultimately rejected the

plaintiff’s argument and declined to recognize retroactive application of new precedent as a basis for

collateral challenge. Id. at 755.

                Although the Engelman Court did not rest its holding on Section 12 of the

Restatement of Judgments, it acknowledged the modern trend favoring finality and certainty. See

id. at 750. This approach requires the reviewing court to weigh any factors militating for and against

upholding the validity of the challenged judgment. See Restatement (Second) of Judgments § 12

(Am. Law. Inst. 1982). These factors may vary in any given case, but include the age of the disputed



                                                   9
judgment, the number of parties affected by that judgment, the breadth of the original tribunal’s

jurisdiction, the extent to which that tribunal made a jurisdictional determination, and the

challenger’s participation in the litigation that resulted in the disputed judgment. See id. In the

present case, every relevant factor weighs in favor of finality—“an anchoring principle of any

functioning and efficient judicial system.” See Engelman, 514 S.W.3d at 753. The challenged

judgment is nearly two decades old, binds tens of thousands of class members, was rendered by a

court of general jurisdiction, and includes a statement indicating that the court found jurisdiction

over “all claims” and “all parties.”

               But perhaps more importantly, the Hospital District—as party to this litigation—has

had ample opportunity to litigate its jurisdictional challenge. “A party that has an opportunity to

litigate the question of subject matter jurisdiction may not at a later time reopen that question in a

collateral attack upon an adverse judgment.” Bass v. Champion Int’l Corp., 787 S.W.2d 208, 212

(Tex. App.—Beaumont 1990, no writ) (citing Chicot Cty. Drainage Dist. v. Baxter State Bank,

308 U.S. 371 (1940)); see also Insurance Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 702 n.9 (1982) (“A party that has had an opportunity to litigate the question of

subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an

adverse judgment.”); Kortebein v. American Mut. Life Ins. Co., 49 S.W.3d 79, 88 (Tex.

App.—Austin 2001, pet. denied) (“Absent class members’ due-process right to adequate

representation is protected by the adoption of appropriate procedures by the certifying court and by

appeal . . . . Due process does not require collateral second-guessing of those determinations and

that review.”). After reviewing the record, the PUC concluded Southwestern Bell’s customers



                                                 10
received adequate notice of the Mirales litigation in 2000, and the Hospital District does not deny

it received that notice. See Tex. R. App. P. 38.1(g). The Hospital District could have raised this

argument at that time. In addition, the Hospital District concedes its membership in the putative STA

class, whose named representative sought relief from the same disputed fees in district court. And

although the Supreme Court ultimately deemed that class uncertifiable in 2010, the Hospital District

could have raised this argument before that determination. Because the relevant facts and

circumstances of this case—including the Hospital District’s opportunity to litigate this jurisdictional

challenge in Mirales and STA—weigh in favor of finality, we reject its present challenge to the

Mirales Final Judgment. We overrule the Hospital District’s first issue.


B. The Hospital District Is Bound by Mirales.

                The crux of this dispute is whether the PUC correctly held that the Mirales Class

includes the Hospital District or the district court correctly reversed that holding. AT&T contends

the PUC “correctly found [the Hospital District’s] claims are barred by a straightforward application

of the Mirales Settlement’s release provision.” Similarly, the PUC, as party to this appeal, argues:


        [The Hospital District’s] claims are barred by the Mirales settlement and judgment
        in two distinct was. First, the doctrine of res judicata precludes [the Hospital
        District], a Mirales class member, from relitigating the exact claims adjudicated and
        resolved in Mirales. . . . Second, setting aside res judicata, the exact claims [the
        Hospital District] presses in this lawsuit were released in Mirales.


We agree with AT&T and the PUC that the present claims are barred by the release in the

Mirales Settlement.




                                                  11
        1. The Hospital District’s Claims Were Released by the Mirales Settlement.

                The PUC is correct that the Mirales Settlement expressly releases the claims the

Hospital District attempts to bring here. “‘A settlement agreement is a contract, and its construction

is governed by legal principles applicable to contracts generally.’” Garza v. Villarreal, 345 S.W.3d 473,

479 (Tex. App.—San Antonio 2011, pet. denied) (quoting Donzis v. McLaughlin, 981 S.W.2d 58,

61 (Tex. App.—San Antonio 1998, no pet.)). “It is the general rule of the law of contracts that where

an unambiguous writing has been entered into between the parties, the Courts will give effect to the

intention of the parties as expressed or as is apparent in the writing.” City of Pinehurst v. Spooner

Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968). We review the interpretation of an

unambiguous contractual provision de novo. See URI, Inc. v. Kleberg County, 543 S.W.3d 755, 763

(Tex. 2018).

                The Mirales Class is defined in relevant part as “all persons and entities who currently

reside in the State of Texas who subscribe, or formerly subscribed, to telephone service provided by

[Southwestern Bell] and pay, or paid, to [Southwestern Bell] a municipal fee . . . .” None of the

parties characterizes this language as ambiguous, and the Hospital District does not deny it is an

entity who subscribed to telephone service from Southwestern Bell and paid the municipal fees

during the disputed period. Southwestern Bell’s records confirm as much. Thus, the Hospital

District is a member of the Mirales Class.

                The claims released in the Mirales Settlement include “any and all claims which have

arisen, arise now, or hereafter may arise or relate in any way to the pass-through or collection of

municipal fees in Texas.” Again, the parties and this Court are in agreement that the language is



                                                   12
unambiguous. Thus, we turn to the ordinary meaning of the terms to interpret the clause. Black

defines “arise from” as to “originate from,” “stem from,” or “result from.” See Arise, Black’s Law

Dictionary (10th ed. 2014). In the present suit, the Hospital District alleges:


       [Southwestern Bell’s] failure or refusal to refund the Unauthorized Charges
       [i.e., municipal fees charged in excess of statutory guidelines] constitutes a material
       breach of contract and a violation of tariff, substantive rule[s] and PURA, and has
       resulted in unlawful rates being charged and collected by [Southwestern Bell] from
       [the Hospital District].


Each of these claims originates, stems, and results from Southwestern Bell’s collection of allegedly

impermissible municipal fees. The Hospital District’s claims therefore arise from the collection of

those fees and fall within the scope of the Mirales Settlement’s release.

               The Hospital District, however, argues that the unambiguous language of this release

does not apply to its case because that language does not accurately reflect the claims the Mirales

parties intended to release. A settlement release is governed by the law of contracts and is therefore

limited by any defenses available in contract law. See Williams v. Glash, 789 S.W.2d 261, 264 (Tex.

1990). As the party seeking to avoid this unambiguous release, the Hospital District bears the burden

of demonstrating an applicable defense, such as fraud, mutual mistake, or lack of consideration. See

id. (“[O]nce the affirmative defense of release has been pleaded and proved, the burden of proof is

on the party seeking to avoid the release to establish mutual mistake.”). The Hospital District offers

the reporter’s record from the Mirales certification hearing as evidence that the parties never

intended to release its claims as part of the Mirales Settlement. As the Hospital District describes

it, the parties “carve[d] out claims regarding certain business customers”—allegedly including the



                                                 13
Hospital District—“from the class action.” Yet the evidence offered by the Hospital District does

not support its argument. The Hospital District is correct that counsel for AT&T dictated certain

stipulations into the record as part of a Rule 11 Agreement accepted by the court, but at no point did

AT&T or the court adopt any claim definition or class definition other than those stated in the

Mirales Settlement.1

                The Hospital District also contends it is neither fair nor prudent to hold governmental

entities bound by class-action settlements unless those entities affirmatively choose to “opt in” to

the action. But Texas law requires putative class members to opt out of a settlement to avoid the

binding effects of class action. See Tex. R. Civ. P. 42(c)(2)(B)(v); Entex v. City of Pearland,

990 S.W.2d 904, 913 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“The trial court recognized

the problems with the opt-out provisions of the class action and expressed its preference for an opt-in

notification of class action, which is not available in Texas.”), abrogated on other grounds, Tracker

Marine, L.P. v. Ogle, 108 S.W.3d 349, 351 (Tex. App.—Houston [14th Dist.] 2003, no pet.);

Enterprise Concepts, Inc. v. Finnell, 964 S.W.2d 348, 349–50 (Tex. App.—Beaumont 1998, no pet.)

(emphasizing the opt-in provision of the Fair Labor Standards Act, 29 U.S.C. § 216(b), and

characterizing the suit as “not a true class action under Rule 42 of the Texas Rules of Civil

Procedure” due to this prerequisite to class membership). The Hospital District has not identified

any authority distinguishing governmental entities from private entities with respect to the

procedures governing class membership under state law, and courts may not “require a particular

procedure when the legislature has not seen fit to do so itself.” Matthews v. Scott, 268 S.W.3d 162,


       1
           We discuss the Rule 11 Agreement in further detail in our discussion of estoppel, infra.

                                                  14
173 (Tex. App.—Corpus Christi 2008, no pet.) (citing City of Rockwall v. Hughes, 246 S.W.3d 621,

631 (Tex. 2008)). Thus, even assuming any merit to the Hospital District’s policy arguments

regarding the effect of class-action settlements on governmental entities, we would defer to the

Legislature to make any changes to the rules governing class actions.

               Because the unambiguous definitions in the Mirales Settlement include the Hospital

District and its allegations, and because the Hospital District offers no persuasive basis for contract

avoidance, we conclude its claims fall within the scope of the release.


               2. Section 281.056 Does Not Exempt the Hospital District from the Release.

               The Hospital District argues that even if its claims would otherwise fall within the

Mirales Settlement’s release, the Hospital District is not bound by that release because it was not

represented in the manner required by statute when the Cameron County district court rendered final

judgment. Section 281.056 of the Health and Safety Code provides, “The county attorney, district

attorney, or criminal district, as appropriate, with the duty to represent the county in civil matters

shall represent the district in all legal matters.” See Tex. Health & Safety Code § 281.056(b).

According to the Hospital District, “The plain language of Section 281.056 requires the presence of

the Harris County Attorney in ‘all legal matters.’” Based on the undisputed fact that this attorney

was never present in court and filed no pleadings in the Mirales litigation, the Hospital

District reasons that it was not “represented” in accordance with the statute. We find the

argument unavailing.

               “When interpreting a statute, our primary objective is to ascertain and give effect to

the Legislature’s intent without unduly restricting or expanding the Act’s scope.” Greater Hous.

                                                  15
P’ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015) (citing City of Lorena v. BMTP Holdings, L.P.,

409 S.W.3d 634, 641 (Tex. 2013)). “We seek that intent first and foremost in the plain meaning of

the text.” Id. at 58 (citing Lorena, 409 S.W.3d at 641; Texas Lottery Comm’n v. First State Bank,

325 S.W.3d 628, 635 (Tex. 2010)). “‘Undefined terms in a statute are typically given their ordinary

meaning . . . .’” Greater Hous. P’ship, 468 S.W.3d at 58 (quoting TGS–NOPEC Geophysical Co.

v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)).

               “Represent” is not defined in Section 281.056, so we turn to its ordinary meaning.

See id. Courts have defined the verb as “[to] fill the place of for some purpose: substitute in some

capacity.” See Thomas v. United Parcel Serv., Inc., 890 F.2d 909, 917–18 (7th Cir. 1989) (quoting

Webster’s Third New International Dictionary 1926 (3d ed. 1981)). Similarly, Merriam defines

“represent” as “to manage the legal and business affairs of.” See Merriam-Webster’s Collegiate

Dictionary 1057 (11th ed. 2008). The Random House definition of “represent” is “to stand or act

in the place of, as an agent does.” The Random House College Dictionary 1120 (Revised ed. 1984).

And American Heritage defines the word as “to act as a spokesperson for.” American Heritage

Dictionary of the English Language 1490 (5th ed. 2015). None of these definitions supports the

Hospital District’s argument that an attorney must be “presen[t]” in court or file pleadings to

represent a client. Particularly in the context of government and in-house counsel, attorneys

routinely represent their clients by advising them not to intervene, not to file responsive pleadings,

etc. But these attorneys are still representing their clients by advising them, managing their affairs,

and acting on their behalf. Thus, the attorneys delineated in Section 281.056 need not necessarily

appear in court or file pleadings to comply with the representation directive.



                                                  16
                The Hospital District complains that the county attorney’s office had no opportunity

to provide advice pursuant to the statute because no one notified that office of the Mirales litigation.

This argument implies that the named plaintiffs, the court, or class counsel had an obligation under

Section 281.056 to notify the county attorney of the class action. But the statute offers no support

for such a construction. To the contrary, while other statutes place the burden to notify government

counsel on the plaintiff or the presiding court, cf. Tex. Gov’t Code § 402.010, this statute’s only

burden is placed on the county attorney itself. See id. § 311.016(2) (“‘Shall’ imposes a duty.’”).

Moreover, the record reflects that the Hospital District itself received adequate notice of the

proposed class-action settlement. The Hospital District does not deny it received that notice. To

whatever extent the county attorney was unaware of the litigation, that unawareness would have

resulted, at least in part, from the Hospital District’s failure to apprise the attorney of the pending

class action. Thus, under the Hospital District’s interpretation of this Section, it could simply avoid

unwanted litigation by failing to notify the county attorney. This is not a reasonable construction of

the statute. See Tex. Gov’t Code § 311.021(2)–(3) (requiring courts to presume the legislature

intended a just, reasonable, and effective result in enacting statute). Because the Hospital District’s

proposed construction is not reasonable and is inconsistent with the language of the statute, must

reject that construction.

                We sustain the issue raised by AT&T and the PUC.


C. AT&T Is Not Estopped from Seeking to Bind the Hospital District.

                In the final issue before this Court, the Hospital District contends AT&T is judicially

estopped from characterizing the Hospital District as a member of the Mirales Class. If the Hospital

                                                  17
District is correct, any error in the District Court’s analysis was harmless and its order cannot be

reversed. See Tex. R. App. P. 44.1(a).

               “‘Judicial estoppel is a common law doctrine that prevents a party from assuming

inconsistent positions in litigation.’” Perryman v. Spartan Tex. Six Capital Partners, Ltd.,

546 S.W.3d 110, 117 (Tex. 2018) (quoting Kane v. Nat’l Union Fire Ins., 535 F.3d 380, 385 (5th

Cir. 2008)). Because judicial estoppel is an affirmative defense, the party urging estoppel has the

burden to conclusively prove each element. See Anadarko Petrol. Corp. v. Thompson, 94 S.W.3d 550,

553 (Tex. 2002) (listing as affirmative defense); OAIC Comm’l Assets, L.L.C. v. Stonegate Vill.,

L.P., 234 S.W.3d 726, 742 (Tex. App.—Dallas 2007, pet. denied) (stating burden); Southwest Guar.

Tr. Co. v. Providence Tr. Co., 970 S.W.2d 777, 782 (Tex. App.—Austin 1998, pet. denied) (same).

Appellate courts generally review judicial estoppel for an abuse of discretion. See Perryman,

546 S.W.3d at 117.

               The elements of judicial estoppel are: “(1) a sworn, prior inconsistent statement made

in a judicial proceeding; (2) the party now sought to be estopped successfully maintained the prior

position; (3) the prior inconsistent statement was not made inadvertently or because of mistake,

fraud, or duress; and (4) the statement was deliberate, clear and unequivocal.” In re Marriage of

Butts, 444 S.W.3d 147, 151 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Spera

v. Fleming, Hovenkamp & Grayson, P.C., 25 S.W.3d 863, 871 (Tex. App.—Houston [14th Dist.]

2000, no pet.); Vinson & Elkins v. Moran, 946 S.W.2d 381, 396 (Tex. App.—Houston [14th Dist.]

1997, writ dism’d by agr.)). To satisfy the first element, the party seeking estoppel must

conclusively demonstrate that the opposing party “alleged or admitted in his pleadings in a



                                                18
former proceeding . . . the contrary to the assertion sought to be made” in the present proceeding.

Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956) (citing 31 C.J.S. Estoppel, § 121 (1955)) (other

citations omitted).

                The Hospital District cannot prevail on this defense because it has not identified any

prior inconsistent statement by Southwestern Bell or AT&T. As evidence of such a statement, the

Hospital District produced the transcript from the final hearing on certification of the Mirales Class.

The Hospital District contends this transcript shows that Southwestern Bell “entered into a Rule 11

agreement . . . to carve out claims [of] certain business customers from the class action . . . including

[the Hospital District’s].” This characterization is contradicted by the transcript itself. The transcript

confirms that the parties entered into the Rule 11 Agreement and dictated that agreement into the

record. That agreement, however, did not “carve out” any class members or claims from the

proposed settlement. Instead, STA—the only remaining challenger to certification of the Mirales

Class—“agree[d] to withdraw all of its objections to the settlement of the Mirales lawsuit.” In

exchange for the withdrawn objection, Southwestern Bell agreed that it would not assert “any

judgment, ruling, order[,] or action of the Court in the Mirales lawsuit” as a defense to any “class

action lawsuit brought by STA as plaintiff (whether the lawsuit is ultimately certified as a class

action or not) . . . in which STA asserts the STA claims for itself and on behalf of a class of similar

situation persons or entities.” But at no point in this record did Southwestern Bell suggest that

governmental or commercial customers lie outside the Mirales Class, and at no point did it deviate

from the unambiguous language of the class definition, which includes all “entities who currently




                                                   19
reside in the State of Texas who subscribe, or formerly subscribed, to telephone service provided by

[Southwestern Bell].” The Hospital District does not deny that it constitutes such an entity.

               Nor was Southwestern Bell’s subsequent litigation of the STA class action

inconsistent with AT&T’s current position regarding the binding effect of the Mirales Settlement

on the Hospital District. The Hospital District argues otherwise, pointing to a list of putative class

members that includes the Hospital District. It further alleges that Southwestern Bell “litigated the

STA case accepting and affirmatively arguing that the proposed class members in that case included

not only [the Hospital District] but dozens of governmental, commercial and other institutional

customers.” This argument mischaracterizes Southwestern Bell’s position in STA. From the first

day of litigation, Southwestern Bell “vigorously dispute[d]” the existence of any certifiable class and

denied the viability of the claims alleged. Nothing in this record reflects that Southwestern Bell ever

suggested the Hospital District—or any other putative class member—had a viable claim arising

from the fee dispute or that the present claims lie outside the release set forth in the Mirales

Settlement. Thus, the Hospital District has produced no evidence of a statement “contrary to the

assertion[s]” AT&T makes in the present case.2 We overrule the issue.


       2
          Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956). The Hospital District appears to argue
that Southwestern Bell’s failure to raise the possible res judicata effect of Mirales during the STA
litigation constitutes a prior inconsistent statement. Under the Mirales Rule 11 Agreement,
Southwestern Bell had promised not to raise that argument against STA and its putative class. Thus,
even assuming any inconsistency between that omitted statement and the assertions made here, “[t]he
doctrine of judicial estoppel simply does not apply under these circumstances.” Ferguson
v. Building Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (explaining that the doctrine
is intended “to prevent parties from playing fast and loose with the judicial system”); Spartan Tex.
Six Capital Partners, Ltd. v. Perryman, 494 S.W.3d 735, 749 (Tex. App.—Houston [14th Dist.]
2016, pet. granted) (“[C]ourts should determine if applying judicial estoppel is appropriate in light
of the specific facts of each case and the doctrine’s purpose of ‘protect[ing] the integrity of the

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                                             III
                                         CONCLUSION

               Having concluded that the district court erred in reversing the PUC’s order dismissing

the Hospital District’s complaint, we reverse its final judgment and render judgment affirming the

PUC’s dismissal order. Tex. R. App. P. 43.2.



                                              __________________________________________
                                              Edward Smith, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Reversed and Rendered

Filed: May 3, 2019




judicial process.’” (quoting United States ex rel. Long v. GSDMIdea City, L.L.C., 798 F.3d 265, 271
(5th Cir. 2015)) (alteration in original), aff’d as modified, 546 S.W.3d 110 (Tex. 2018)).

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