author: WANDA McKEE FOWLER, Justice.

text:
    The CITY OF HOUSTON, Appellant, v. CLEAR CHANNEL OUTDOOR, INC., Appellee.
    No. 14-03-00022-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 15, 2004.
    Rehearing En Banc Overruled March 18, 2004.

      Bertrand L. Pourteau, II, Houston, for appellant.
    J. Allen Smith, Scott James Conrad, Dallas, for appellee.
    Panel consists of Justice WANDA McKEE FOWLER and Justice FROST. Former Chief Justice SCOTT BRISTER not participating.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant, the City of Houston, brings this interlocutory appeal from the trial court’s denial of a plea to the jurisdiction. Houston pleaded sovereign immunity under Texas Local Government Code section 51.075. We conclude the trial courj did not err in denying the plea and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Houston contracted with Clear Channel Outdoor, Inc. to purchase a billboard for a reconstruction project. Months later, Houston contacted Clear Channel and informed it that because the billboard was impermissible, Houston was not obligated to compensate the owner for any illegal improvement. After Houston refused to pay, Clear Channel sued Houston for breach of contract. Houston then filed a plea to the jurisdiction, in which it claimed sovereign immunity under Texas Local Government Code section 51.075. The trial court denied the plea,. and Houston filed this interlocutory appeal.

DISCUSSION

Houston’s sole issue on appeal is that the statutory language of section 51.075 dictates that Houston is immune from suit. In determining this issue, this Court must revisit our earlier opinion in Jackson v. City of Galveston — in which we found “sue and be sued” did not waive sovereign immunity — to consider the impact of the Texas Supreme Court’s more recent rulings in this area. See Jackson v. City of Galveston, 837 S.W.2d 868, 871 (Tex.App.Houston [14th Dist.] 1992, writ denied). As we discuss below, we find, based on the Texas Supreme Court’s two influential opinions in Federal Sign v. Texas Southern University and Missouri Pacific Railroad Company v. Broimsville Navigation District (“MoPac ”), that Houston waived its sovereign immunity. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997), superseded by statute as stated in Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.8d 591, 593 (Tex.2001); Mo. Pac. R.R. Co. v. Browns Navigation Dist., 453 S.W.2d 812 (Tex.1970).

Before addressing whether the statute’s language waives Houston’s sovereign immunity, we first note that in Texas, a city is entitled to sovereign immunity. In City of Galveston v. Posnainsky, the Texas Supreme Court first acknowledged a city’s sovereign immunity. 62 Tex. 118 (1884). Municipal corporations “exercise powers conferred on them for purposes essentially public” and these municipalities should be “deemed agencies of the state, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute!.]” Id. at 127. Recently, the Texas Supreme Court reaffirmed the fact that cities enjoy sovereign immunity. See San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283 (Tex.1996) (holding “[c]ities and counties enjoy sovereign immunity”). Being a city, Houston is entitled to sovereign immunity.

We now must determine whether Houston’s immunity is waived, thus allowing Clear Channel to proceed with its suit. As a general rule, sovereign immunity covers two principles that protect municipalities in suits for money damages: immunity from liability and immunity from suit. Fed. Sign, 951 S.W.2d at 405. Immunity from liability shields the municipality from monetary judgments, even if the Legislature has expressly given consent to sue. Gen. Servs. Comm’n, 39 S.W.3d at 594. So, simply by contracting with a private party, Houston waived immunity to liability. On the other hand, immunity from suit prevents a suit against the municipality unless the Legislature expressly consents to the suit. See id.

The real issue in this case boils down to whether Houston’s sovereign immunity from suit is waived. Immunity from suit must be waived by clear and unambiguous language. Tex. Gov’t Code § 311.034; Fed. Sign, 951 S.W.2d at 405; City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995) (finding that clear and unambiguous language for waiving immunity from suit applies to other governmental entities besides the State); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002); Univ. of Tex. Med. Branch at Galveston v. York,- 871 S.W.2d 175, 177 (Tex.1994). Accordingly, we must determine whether the language, “[t]he municipality may plead and be impleaded in any court,” clearly and unambiguously waives immunity from suit. Tex. Loc. Gov’t Code § 51.075.

We first find guidance to whether this language waives immunity in the landmark Texas Supreme Court case of MoPac. There, the relevant statute stated that navigation and canal commissioners may “sue and be sued” in Texas courts. Mo-Pac, 453 S.W.2d at 813. Without further discussion, the Texas Supreme Court found the statute was “quite plain and gives general consent” for suit in Texas courts. Id. Since MoPac, most courts have construed similar statutes with the words “sue and be sued” as granting a general waiver of suit. See Welch v. Coca-Cola Enters., Inc., 36 S.W.3d 532, 537-38 (Tex.App.-Tyler 2000, pet. withdrawn by agr.); Bates v. Tex. State Tech. Coll., 983 S.W.2d 821, 827 (Tex.App.-Waco 1998, writ denied); Engelman Irrigation Dist. v. Shields Bros., 960 S.W.2d 343, 348 (Tex. App.-Corpus Christi 1997, writ denied 989 S.W.2d 360, (Tex.l998)(per curiam)). Even though there was little discussion in MoPac as to the court’s reasoning or analysis, MoPac remains good law.

In fact, in 1997, the Texas Supreme Court had a second opportunity in Federal Sign to address this issue; the court could have denounced MoPac, but it did not. Fed. Sign, 951 S.W.2d at 408. Instead of criticizing its holding, the Court reaffirmed that “ ‘sue and be sued’ met the legislative permission requirement” to waive sovereign immunity. Id. Even further, the concurrence by Justices Hecht, Phillips, Cor-nyn, and Owen discussed the fact that MoPac may have waived all governmental immunity for contract suits by authorizing the suit of particular agencies. Id. at 413-14 (Hecht, J., concurring). Even with the possible blanket waiver, these justices again did not take issue with MoPac. -

Following the lead of MoPac and Federal Sign, several sister appellate courts have interpreted “plead and be impleaded” as a waiver of sovereign immunity. See Goerlitz v. City of Midland, 101 S.W.3d 573, 577 (Tex.App.-El Paso 2003, pet. filed); Knowles v. City of Granbury, 953 S.W.2d 19, 22 (Tex.App.-Fort Worth 1997, writ denied); Avmanco, Inc., v. City of Grand Prairie, 835 S.W.2d 160, 164-65 (Tex.App.-Fort Worth 1992, appeal dism’d as moot); see also City of Garland v. Shierk, No. 05-99-00258-CV, 2000 WL 721602, at *2 (TexApp.-Dallas June 6, 2000, pet. denied) (not designated for publication). Each case reiterates that the statute waives immunity based on the Mo-Pac decision and the words “plead and be impleaded.” See id. And each, therefore, concludes that the municipality has waived immunity to suit. See id.

Following a different path than the Texas Supreme Court and the majority of intermediate appellate courts was our holding in Jackson, the Dallas Court of Appeals’ holding in Reata, and the Waco Court of Appeals’ holding in Tooke. See City of Dallas v. Reata Constr. Corp., 83 S.W.3d 392 (Tex.App.-Dallas 2002), rev’d by 47 Tex.Sup.Ct.J. 408 (Tex. Apr. 2, 2004); City ofMexia v. Tooke, 115 S.W.3d 618 (Tex.App.-Waco 2003, pet. granted). Like Jackson, Reata and Tooke interpreted the language “plead and be impleaded” as not granting a waiver of sovereign immunity. See Reata, 83 S.W.3d at 398-400; Tooke, 115 S.W.3d at 623-24.

In Jackson, we looked at a very similar statute which states the following: “The municipality may sue and be sued, implead and be impleaded, and answer and be answered in any matter in any court or other place.” Tex. Loc. Gov’t Code § 51.013. Even though “sue and be sued” and “plead and be impleaded” were included in this statute, this Court held the statute did not waive sovereign immunity. See Jackson, 837 S.W.2d at 871. We did not follow MoPac, nor did our opinion even cite to MoPac. See id. Instead, in response to the appellant’s challenge to the constitutionality of the doctrine of sovereign immunity, we left the waiver of sovereign immunity as a matter to be addressed by the Legislature — not intermediate appellate courts. See id.

In Reata, the Dallas Court of Appeals followed our reasoning. See Reata, 83 S.W.3d at 398. There, the court held the language “sue and be sued” spoke to the municipality’s capacity to be sued after it has waived immunity to suit. See id. at 398. Reata also ignored MoPac and Federal Sign, in which the Texas Supreme Court held “sue and be sued” was sufficient language to waive immunity from suit. See MoPac, 453 S.W.2d at 813-14; Fed. Sign, 951 S.W.2d at 405. Additionally, the Reata court directly contradicted MoPac when it stated the “provisions do not expressly waive the City’s sovereign immunity.” See Reata, 83 S.W.3d at 398.

In Tooke, the Waco Court of Appeals did address the Texas Supreme Court precedent of MoPac. See Tooke, 115 S.W.3d at 621. However, the Tooke court used a completely different approach by acknowledging that “sue and be sued” language waives sovereign immunity, but “plead and be impleaded” does not. Id. at 622-23. The Tooke court concluded that if “sue” and “plead” are interpreted to have the same meaning, the court “run[s] afoul” of settled statutory construction principles. Id. at 623. Additionally, the Waco court applied the four Supreme Court factors to consider whether certain language in a statute is an express and unambiguous waiver of sovereign immunity. Id. These are the four factors: (1) the immunity must be waived beyond doubt, (2) ambiguity in a statute leans toward retaining immunity, (3) if the Legislature insists on a State being joined in the lawsuit, immunity is waived, and (4) if a monetary cap or scheme is provided in the statute, the Legislature probably intended to waive immunity. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696-98 (Tex.2003). The court then concluded that “plead and be impleaded” did not waive sovereign immunity. See Tooke, 115 S.W.3d at 623-24.

We now must decide whether we will follow our precedent in Jackson, or, instead, follow the Texas Supreme Court and the majority of intermediate appellate courts by holding “plead and be implead-ed” does waive sovereign immunity. We will follow the Texas Supreme Court.

As stated earlier, MoPac holds that the language “sue and be sued” adequately waives sovereign immunity. MoPac, 453 S.W.2d at 813. We acknowledge the statute in question here, section 51.075, includes only the language “plead and be impleaded,” and not the language “sue and be sued,” but for the reasons noted, we find no distinction. Lawyers and judges readily draw distinctions between the words “sue” and “plead.” In the vernacular of the legal profession, the former means “to commence or to continue legal proceedings for recovery of a right,” while the latter means “to make, deliver, or file any pleading; to conduct the pleadings in a cause.” See Black’s Law Dictxonaey 1284, 1037 (5th ed.1978). Thus, among professionals, “suing” is bringing a civil suit, while “pleading” is interposing a pleading in the civil action. But in ordinary usage, “plead” may also mean “to maintain (as a case or a cause) in a court of law or other tribunal.” See MeRRLam-WebsteR’s Collegiate Dictionaey 891 (10th ed.2002). In other words, though experts attribute different meanings to the words “plead” and “sue,” in laymen’s terms, they mean the same thing. And, neither party has provided, us, nor can we find, any reason why the Legislature removed the words “sue and be sued” for home-rule municipalities, such as Houston, but kept the language for Type A and Type B municipalities. See Tex. Loc. Gov’t Code §§ 51.013, 51.033. In the. context of this statute, therefore, we find no difference in the words “plead” and “sue.”

Finding no difference in the language “sue and be sued” and “plead and be im-pleaded,” we are compelled to follow the Texas Supreme Court’s interpretation in Mopac — especially considering that the Texas Supreme Court passed up the opportunity to revisit and change its decision. Furthermore, this interpretation seems to be in line with the Legislature’s intent. And we do not believe, as the Reata court suggests, that “sue and be sued” goes to the municipality's capacity after immunity has been waived. We acknowledge that the Legislature could have been clearer in its choice of words. But, according to the Texas Supreme Court’s interpretation, “sue and be sued” clearly and unambiguously waives sovereign immunity, and the Legislature has been aware of this interpretation for many yéars. If the lawmakers did not mean for sovereign immunity to be waived in this statute, they could have chosen more explicit language to convey that intention.

In conclusion, we hold that “sue and be sued” or “plead and be impleaded” is sufficient language to waive immunity from suit. See MoPac, 453 S.W.2d at 813; Fed. Sign, 951 S.W.2d at 405. Applying this interpretation to our case, Houston has waived sovereign immunity to be sued. Therefore, we overrule Houston’s only issue and affirm the judgment of the trial court.

      . Section 51.075, entitled "Authority Relating to Lawsuits," provides in its entirety as follows: "The municipality may plead and be impleaded in any court.” Tex. Loc. Gov’t Code § 51.075.

      . Houston relied heavily in its brief, and at oral argument, on the Pelzel case for the proposition Houston had not waived sovereign immunity. See Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248-49 (Tex.2002). However, the statute in that case is distinguishable from the statute in question. In Pelzel, the Supreme Court was considering a presentment statute that provided "[a] person may not sue on a claim against a county ' unless the persoy has presented the claim to the commissioners court andithe commissioners court has neglected or refused to pay all or part of the claim.” See Tex. Loc. Gov’t Code § 89.004(a). The Supreme Court found that the language did not expressly waive immunity to suit, but instead demonstrated the steps a party must complete before the party may file suit. See Pelzel, 77 S.W.3d at 249. The purpose and language of this presentment statute is different from the purpose of “plead and be impleaded” in Texas Local Government Code section 51.075.

      . When the State — or in this case, a city— contracts with a private individual for proprietary or governmental functions, it waives immunity from liability. Fed. Sign, 951 S.W.2d at 405-06; Dillard v. Austin Ind. Sch. Dist., 806 S.W.2d 589, 592 (Tex.App.-Austin 1991, writ denied). The rule is meant to hold a municipality liable as a private person when it contracts for a benefit. Travis County v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex.2002); Goerlitz v. City of Midland, 101 S.W.3d 573 (Tex.App.-El Paso 2003, pet. filed). This rule is meant to encourage private parties to contract with municipalities and ensure some form of recourse. So, when Houston entered into a contract with Clear Channel, a private party, it waived immunity from liability. See Dillard, 806 S.W.2d at 593.

      . The Legislature may consent to suits against the State by legislative statute or by resolution granting express legislative permission. See Gen. Servs. Comm’n, 39 S.W.3d at 594; Fed. Sign, 951 S.W.2d at 409. There was some discussion at oral argument about a plaintiff's ability to obtain an express resolution granting permission to sue. We presume that, in the absence of an applicable statute, any party, including a city, may obtain a resolution for suit.

      . After questioning the parties during oral argument, neither side could give, nor could we find, a reasonable distinction between "plead” and "sue” in this context.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Carlo AGUIRRE, Relator.
    No. 14-04-00106-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 19, 2004.
    Carlo Aguirre, Tennessee Colony, pro se.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   OPINION

PER CURIAM.

On' February 10, 2004, relator filed a petition for writ of mandamus in this Court. See Tex. Gov’t.Code Ann. § -22.221 (Vernon Supp.2003); see also Tex.R.App. P. 52. Relator, Carlo Aguirre, seeks a writ of mandamus ordering the judge of the 245th District Court to rule on relator’s motion for new trial.

The factual statements in a petition for writ of mandamus must be verified by affidavit made on the personal knowledge of the affiant. Tex.R.App. P. 52.3. Because relator failed to include an affidavit swearing to the truth of all factual statements, the petition does not meet the requirements of Rule 52.3.

Furthermore, as the party seeking relief, relator has the burden of providing this Court with a sufficient record to establish his right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992). Relator claims he timely filed a motion for new trial; however, timeliness cannot be determined because relator attaches a copy of an unsigned, undated judgment. Furthermore, the copy of the motion for new trial bears no file stamp. Having failed to meet his burden of providing a sufficient record, relator has not established his right to mandamus relief.

We deny relator’s petition for writ of mandamus.


author: ADELE HEDGES, Chief Justice.

text:
    Luis Alberto BODMER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-02-01182-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 30, 2004.

      Terry W. Yates, Mark Lynn Clark, Houston, for appellant.
    Eric Kugler, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and HUDSON.
   MEMORANDUM OPINION

ADELE HEDGES, Chief Justice.

Appellant Luis Alberto Bodmer appeals from his felony conviction for aggravated perjury. After a jury convicted him of that offense, the trial court sentenced appellant to community supervision for ten years and imposed a fine of 5,000 dollars. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.- P. 47.4. We affirm.

Appellant presents four issues for review: (1) whether the evidence is legally sufficient to support his conviction because he was not identified as the person who signed the affidavit of non-interest, (2) whether the trial court erred in overruling his hearsay objection to the affidavit of witness Miranda Knerr, (3) whether the evidence is legally sufficient to support his conviction because there is no evidence of his “interest” in the bid proposal, and (4) whether the evidence is factually sufficient to support his conviction because there is no evidence his sworn statement was made with the intent to deceive. We address his second issue before considering his remaining issues below.

In his second issue, appellant argues that the trial court erred in overruling his hearsay objection to Miranda Knerr’s affidavit. He contends that because the affidavit contains hearsay evidence of Knerr’s identification, its admission materially prejudiced his defense at trial. We review a trial court’s decision to admit evidence for abuse of discretion and will not reverse unless it falls outside the zone of reasonable disagreement. Resen-diz v. State, 112 S.W.3d 541, 544 (Tex. Crim.App.2003). We will uphold the trial court’s ruling if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim. App.2000).

Under the Texas Rules of Evidence, a prior statement by a witness is not hearsay if the witness testifies at trial and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. Tex.R. Evid. 801(e)(1)(C). In the present case, Knerr testified at trial and was cross-examined concerning the affidavit, which included the following statement: “[The April 9, 1997] affidavit was also signed in my presence as required by law and I verified [appellant’s] identification by requiring that he present a valid driver’s license.” Because this statement constitutes admissible identification evidence, the trial court did not err in its admission of Knerr’s affidavit. Accordingly, appellant’s second issue is overruled.

In his first issue, appellant argues that the evidence is legally insufficient to support his conviction because he was not identified as the person who signed the affidavit of non-interest. We apply the usual standard of review for legal sufficiency. See Reyes v. State, 84 S.W.3d 633, 636 (Tex.Crim.App.2002). Because we have already determined that Knerr’s identification statement in her affidavit constitutes admissible evidence, we hold that the evidence is legally sufficient to support the fact that appellant was the person who signed the affidavit of non-interest. Accordingly, we overrule appellant’s first issue.

In his third issue, appellant argues that the evidence is legally insufficient to support his conviction because there is no evidence he had an “interest” in the Trans-america Group’s bid proposal. He contends that the term interest is restricted to interest in real property only and cites as authority Section 18-2 from the Code of Ordinances of the City of Houston. A closer look at the relevant provision of that section, however, reveals that interest cannot be given the definition appellant claims. The cited section does not define interest, but defines interest in real property (emphasis added) to include “any leasehold, beneficial interest, ownership interest dr an option to acquire any such interest in real property.” To define interest in the manner urged by appellant would violate the interpretive canon that each word, phrase, clause or sentence in a legislative enactment be given effect if reasonably possible. See Marx v. State, 987 S.W.2d 577, 587 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1034, 120 S.Ct. 574, 145 L.Ed.2d 436 (1999).

Moreover, appellant’s definition of interest is at odds with the provisions of Article VII, Section 4 of the City Charter and Section 18-3(a)(2) of the City Code of Ordinances, both of which prohibit a City officer from having a pecuniary interest in private transactions involving the City. To effectuate these provisions, the City requires the submission of an affidavit of non-interest such as the document signed by appellant. Therefore, we interpret appellant’s affidavit of non-interest to state that (at the time of execution) he knew of no officer, agent or employee of the City having “in any way or manner” a pecuniary interest, “either directly or indirectly,” in the bid proposal advanced by Trans-america.

In applying this definition of interest to the facts in the present case, we hold that the evidence is legally sufficient to support a finding that appellant had an interest in Transameriea’s bid proposal. The State established that appellant would own a twenty percent participation interest in exchange for his consulting services in connection with the project. Appellant also would be entitled to compensation for his consulting services at the customary rates for such services. Because a rational trier of fact could have found that this evidence satisfies the State’s burden to prove appellant had an interest in the bid proposal, we overrule appellant’s third issue.

In his fourth issue, appellant argues that the evidence is factually insufficient to support his conviction because there is no evidence appellant made the statement of non-interest with the intent to deceive. He contends that because his roles as architect and manager of Trans-ameriea were disclosed in the bid proposal, the trial court was required to find as a matter of law that he did not have the requisite intent to deceive. In a prosecution for aggravated perjury, intent to deceive may be inferred from the circumstances. Mitchell v. State, 608 S.W.2d 226, 229 (Tex.Crim.App.1980). We apply the usual standard of review for factual sufficiency. See King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App.2000).

At trial, the State presented circumstantial evidence of appellant’s intent to deceive. The affidavit of non-interest signed by appellant is a simple, direct factual statement consisting of less than one hundred words. A well-educated person such as appellant, who received master’s degrees in both architecture and urban planning and held teaching positions at universities around the globe, can certainly be expected to understand the significance of the document signed by him. This evidence is strengthened by the fact that appellant has over sixteen years of consulting experience, including significant involvement in local governmental zoning, redevelopment, land use, and revitalization efforts across the country. Don Cheat-ham, who serves as senior assistant city attorney and chief of the general counsel division of the City of Houston’s legal department, testified that his division provides instructional sessions and textual guides to city officials regarding common financial and ethical concerns faced by people in positions such as appellant’s. Further, the bid proposal submitted by Transamerica contains an instructional packet entitled “City of Houston: Bid Specifications for Sale of Surplus Land.” That packet specifically provides in relevant part that any contract entered into by an officer of the City having either a direct or indirect pecuniary interest in the transaction is void. An affidavit of non-interest pertaining to this prohibition must be submitted as part of the bid documents, and a sample affidavit is even attached to the packet.

Against this evidence, appellant points to evidence that Transamerica’s bid proposal contains a development plan in which the company states that appellant serves on the Planning Commission for the City of Houston. The evidence also reveals that appellant’s membership and service on the Planning Commission are matters of public record and that many people in and around City government were aware of his involvement in the Transamerica project. However, while these facts are undeniably probative and even powerful evidence that appellant did not have the requisite intent to deceive, we must refrain from substituting our judgment for that of the trier of fact. See Johnson, 23 S.W.3d at 12. Because we cannot say that either proof of guilt is so weak or greatly outweighed by contrary proof, we find the evidence factually sufficient to support a finding that appellant made the statement with the intent to deceive. Accordingly, we overrule appellant’s fourth issue.

The judgment is affirmed.

      . While appellant's brief does not expressly state whether he challenges the legal or factual sufficiency of the evidence, we note that the cases he cites in support of his .claim reviewed the evidence for legal sufficiency. See Mayo v. State, 156 Tex.Crim. 26, 238 S.W.2d 777 (1951); McCullen v. State, 372 S.W.2d 693 (Tex.Crim.App.1963). We therefore construe this issue as a challenge to the legal sufficiency of the evidence.

      . While appellant’s brief claims that the evidence is "legally insufficient," we note that the standard he cites in support of his claim is appropriate for factual sufficiency analysis. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.App.2000) ("whether a neutral review of all the evidence demonstrates that the proof of this element is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury's finding”). We therefore construe this issue as a challenge to the factual sufficiency of the evidence.

      . The identification evidence is legally sufficient based on an additional ground. Knerr testified that her routine practice was to require proof of identification by presentation of a driver’s license or other government-issued documentation. Under the Rules of Evidence, evidence of a person’s habit or routine practice is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit or routine practice. TexR. Evid. 406.
      Based on the evidence above of Knerr’s routine practice, a jury could reasonably infer that she required proof of appellant’s identity prior to notarizing his statement of non-interest on the date in question. Further, it may be reasonably be inferred from the fact that Knerr notarized the document that the identity of the person who appeared before her and signed it matched the form of identification presented. Therefore, a rational trier of fact could have found that Knerr properly identified appellant as the person who signed the affidavit of non-interest beyond a reasonable doubt.

      . That section provides in relevant part: “Nor shall any member of the City Council, or any officer of the City of Houston, be pecuniarily interested, directly or indirectly, in any contract let by the city, or in any work done by the city, or in any matter wherein the rights or liabilities of the City of Houston are or may be involved. In the event such officer of the City of Houston shall become interested, directly or indirectly, in any contract or work, purchase or sale made by the City of Houston, then the said contract or work, purchase or sale, shall be null and void ...

      . That section provides: "No city official shall invest or hold any investment or interest directly or indirectly in any financial, business, commercial or other transaction, that creates or might reasonably tend to create a conflict between the public trust held as an official of the city and the official's private interests.”


text:
    In re Ravinder AGUSALA, M.D., Relator.
    No. 14-04-00317-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 20, 2004.
    James B. Edwards, Carol Jean Harrell Minck, Stafford, for appellants.
    Helen A. Cassidy, Howard L. Nations, Robert S. Troth, Houston, for appellees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

PER CURIAM.

On May 6, 2004, Relator, Dr. Ravinder Agusala, filed a motion to dismiss the original proceeding because the underlying cause of action has settled. See Tex.R.App. P. 42.1. The motion is granted.

Accordingly, the petition for writ of mandamus is ordered dismissed.


text:
    In re Charles L. GRABLE, Relator.
    No. 14-04-00515-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 17, 2004.
    Charles Lee Grable, Fort Stockton, pro se.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   OPINION

PER CURIAM.

On May 24, 2004, Relator, Charles L. Grable, filed a petition for writ of mandamus. See Tex.R.App. P. 52.1. Relator also filed a request for injunctive relief.

Relator complains that the State of Texas failed to perform a ministerial duty of informing the trial court the circumstances under which relator was induced to plead guilty. Thus, relator seeks to compel the State to perform this alleged duty. Under section 22.221 of the Government Code, this Court does not have the power to issue a writ against a party other than a judge unless a writ is necessary to enforce our jurisdiction. Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004).

Accordingly, the petition for writ of mandamus and the request for injunctive relief are denied.


author: EVA M. GUZMAN, Justice.

text:
    James D. HARDIN, Appellant, v. Charlotte L. HARDIN, Appellee.
    No. 14-03-00342-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    June 24, 2004.
    Rehearing Overruled Jan. 27, 2005.

      James D. Hardin, Houston, pro se.
    Charlotte L. Hardin, Katy, pro se.
    Panel consists of Justices EDELMAN, FROST, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

In eleven issues, appellant, James D. Hardin (“James”), challenges the trial court’s order denying his petition to modify child support. The appellee, his former wife, Charlotte L. Hardin (“Charlotte”), did not file a brief. Finding no error, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

James and Charlotte entered into an Agreed Final Decree of Divorce (the “Decree”) which was signed by the court on October 3, 2001. Per their agreement, Charlotte and James were appointed joint managing conservators of their minor child and James was ordered to pay $800 per month in child support.

On November 29, 2001, less than two months after the Decree was approved and entered by the court, James filed a petition to modify the parent-child relationship. On November 11, 2002, at the conclusion of a bench trial, the court orally denied the requested modification of child support and awarded Charlotte attorney’s fees.

On November 22, 2002, the trial court signed its final judgment. Thereafter, James filed a request for findings of fact and conclusions of law on December 3, 2002, and a notice of past due findings of fact and conclusions of law on January 8, •2003. The trial court did not file the requested findings. This appeal ensued.

II.ISSUES PRESENTED

On appeal, James argues the trial court abused its discretion by (1) not filing child support findings under section 154.130 of the Family Code and under Texas Rules of Civil Procedure 296 and 297; (2) refusing to modify the amount of child support ordered in the Decree; (3) awarding attorney’s fees without pleading, notice, evidence, or hearing; (4) awarding attorney’s fees without regard to section “156.123” of the Family Code; (5) awarding attorney’s fees without a specific finding under section 156.005 of the Family Code; (6) awarding attorney’s fees as child support; (7) admitting inadmissible hearsay; and (8) allowing his attorney to withdraw. James also contends the trial court erred by (1) failing to give him notice of the November 22, 2002 order denying the requested modification of child support; (2) permitting an assistant attorney general to participate in the case; and (3) breaching Canon 3(B)(8) of the Code of Judicial Conduct.

III.STANDARD OF REVIEW

Generally, unless the complaining party can demonstrate a clear abuse of discretion, orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In re D.S., 76 S.W.3d 512, 516 (Tex.App.Houston [14th Dist.] 2002, no pet.). A court abuses its discretion when it acts arbitrarily, unreasonably, or without regard to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.App.-Houston [1st Dist.] 1999, no pet.). In determining whether an abuse of discretion has occurred, we view the evidence in a light most favorable to the court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly, it abuses its discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). An allegation of legal or factual insufficiency is not treated as an independent ground of error in this context because the appropriate standard of review is abuse of discretion. In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

IV. ANALYSIS

We address James’s second and third issues first because our disposition of those issues impacts our analysis of James’s first and eighth issues, which we address together. For clarity, we next address James’s fourth issue relating to notice of the trial court’s judgment and then his remaining issues.

A. Did the trial court abuse its discretion in failing to file child-support findings?

1. Findings Under Family Code Section 154.130

In his second and third issues, James argues the trial court abused its discretion because it did not make required findings under section 154.130 of the Family Code. Findings by the trial court under section 154.130 of the Family Code are required only when the amount of child support ordered or rendered by the court varies from the guidelines. TEX. FAM. CODE ANN. § 154.130(a)(3) (Vernon 2002); In re D.S., 76 S.W.3d at 522. Here, the court simply denied James’s request to modify the support obligation set out in the Decree; it did not issue or render a new child-support order. Therefore, no findings were required and the trial court did not abuse its discretion in failing to make findings under section 154.130. See In re D.S., 76 S.W.3d at 522; Terry v. Terry, 920 S.W.2d 423, 425-26 (Tex.App.-Houston [1st Dist.] 1996, no writ) (holding because trial court did not set or modify the amount of child support, findings were not required even though requested).

2. Findings under Rules 296 and 297

James also contends the trial court should have filed findings of fact and conclusions of law pursuant to Texas Rules of Civil Procedure 296 and 297. Rule 296 requires ah initial request for findings to be filed within twenty days after a judgment is signed; Rule 297 requires the court to file its findings within twenty days of the initial request. TEX. R. CIV. P. 296, 297. If the court fails to timely file findings, the party requesting the findings must file a reminder request within thirty days of the date the original request was filed. TEX. R. CIV. P. 297.

Here, the trial court signed the final order on November 22, 2002. James filed a request for findings of fact and conclusions of law on December 3, 2002. James filed a notice of past due findings of facts and conclusions of law on January 8, 2003. Because the notice was filed more than thirty days after December 3, 2002, it was untimely. Therefore, his complaint that the court faded to issue its findings and conclusions is waived on appeal due to his failure to file the notice in a timely manner. See Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255 (Tex. 1984). Accordingly, we overrule appellant’s second and third issues and proceed under the presumption that the trial court found all facts necessary to support its judgment. See Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.App.-Houston [14th DistJ 1994, pet. denied) (noting that if there are no findings of fact or conclusions of law filed, all findings necessary to support the judgment, supported by the record, will be implied). However, we may review any implied findings for sufficiency of the evidence. BMC Software Belg., N.V. v. Mar-chand, 83 S.W.3d 789, 795 (Tex.2002).

B. Did the trial court err by allegedly failing to give James notice of its judgment?

In his fourth issue, James asserts the trial court failed to give him notice of the November 22, 2002 order denying modification of child support until December 3, 2002, in violation of Texas Rule of Civil Procedure 306a(3). We find no evidence in the record to support James’s claim. Nor do we find that this alleged error was brought to the trial court’s attention. See Tex.R;App. P. 33.1(a). Therefore, we overrule James’s fourth issue.

C. Did the trial court abuse its discretion by refusing to modify James’s child support obligation?

In his first issue, James contends the trial court erred in refusing to modify the amount of child support set forth in the Decree because the evidence showed he did not have sufficient net resources to justify that amount under the child support guidelines. In his eighth issue, James asserts he presented legally and factually sufficient evidence of a material and substantial change in circumstances, thereby warranting a decrease in child support. We disagree.

To prevail on a motion to modify support, the movant must show (1) that the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of: (a) the date of the order’s rendition; or (b) the date the settlement agreement which the order is based on was signed; or (2) three years have elapsed since the order was rendered or last modified, and the child support award differs by either twenty percent or $100 from the amount that would be awarded in accordance with the child support guidelines. See TEX. FAM. CODE ANN. § 156.401(a)(1)-(2) (Vernon Supp.2004). In determining whether a modification of support is necessary, the trial court should examine and compare the circumstances of the parents and any minor children at the time of the order, with the circumstances existing at the time modification is sought. In re D.S., 76 5.W.3d at 520. On review, we allow the trial court broad discretion in setting child-support payments and in modifying those payments. Id.

When ruling on a requested modification, the trial court may consider, among other factors: (1) the needs of the child; (2) the ability of the parents to contribute to the child’s support; (3) any financial resources available for support; and (4) the amount of possession of and access to the child. TEX. FAM. CODE ANN. § 154.123 (Vernon 2002). The parties should present evidence to the trial court of the parents’ and/or the child’s financial circumstances and needs, both at the time of divorce and at the time of the modification hearing. See Farish v. Farish, 921 S.W.2d 538, 541 (Tex.App.-Beaumont 1996, no writ).

James argues there has been a material and substantial change in circumstances since the time of the divorce because: (1) he changed jobs and had a decrease in compensation and then subsequently lost the lower-paying job as a result of a corporate reorganization; (2) he suffered extended unemployment and exhausted his unemployment compensation; and, more recently, (3) he was injured in an automobile accident. Just before his divorce, James earned $65,000 per year as a supervisor and estimator for SpawMaxwell. In November 2001, he moved to Dallas and started work at C.F. Jordan. After being terminated from C.F. Jordan in March 2002, he remained unemployed until the time of trial, approximately seven months later. His unemployment compensation benefits terminated in July 2002.

At trial there was conflicting testimony regarding James’s employment just prior to signing the Decree, and the circumstances surrounding James’s termination of employment with SpawMaxwell. Notably, by October 3, 2001, the date the Decree was signed, James had already tendered his letter of resignation to SpawMaxwell. There was also conflicting evidence regarding James’s job prospects in the Houston area at that time, and exactly when he was offered a job at C.F. Jordan and at what salary. James claimed he made less money at C.F. Jordan than he had expected because an employment recruiter misled him. However, Charlotte testified James took the lower-paying job purposefully, because he thought the future prospects were better at C.F. Jordan than at similar positions in Houston for the same salary.

James also testified he was unable to work due to an automobile accident on August 20, 2002. Although he testified he had not been released by his doctor to return to work, documents admitted at trial indicated that James’s medical limitations as a result of the accident were twisting, bending, and lifting. Nothing in the record demonstrates that James’s doctors forbade him from working between August 20, 2002, the time of the auto accident, and November 11, 2002, the date of the trial. In fact, James, who previously had worked construction-related jobs, testified he was using two employment recruiters and sought employment during that period of time. However, on cross-examination, he admitted he had not pursued any construction-related positions advertised in the Sunday Houston Chronicle during the three weeks prior to trial. In fact, although James testified that he was a highly skilled carpenter, his activities at the time of trial included hosting a weekly television show and participating in an internet show for which he received no remuneration for his services.

Balanced against the evidence of James’s job loss and car accident, was Charlotte’s testimony that James was intentionally unemployed. A child support obligor qualified to obtain gainful employment cannot avoid his support obligation by voluntarily remaining unemployed or underemployed. Tenery v. Tenery, 955 S.W.2d 337, 340 (Tex.App.-San Antonio 1997, no pet). To make a finding of intentional underemployment or unemployment, there must be evidence the parent reduced his income for the purpose of decreasing his child support payment. In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.). The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining a child support award may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background, and earning potential. In re Davis, 30 S.W.3d 609, 617 (Tex.App.-Texarkana 2000, no pet.); In re P.J.H., 25 S.W.3d at 405-06. At the same time, the court must keep in mind a parent’s right to pursue his or her own happiness. DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). Once the parent obligated to pay child support offers proof of his or her current wages, the other parent bears the burden to show that the obligor is intentionally underemployed or unemployed. Id. Because James testified that his lay-off from C.F. Jordan job was involuntary, whether he voluntarily remained unemployed since March 2002 was an issue at trial.

Charlotte testified she believed James was intentionally unemployed because he did not want to pay child support in the amount agreed to in the Decree. She stated that her problems with James began after she requested a child support wage withholding order when he worked in Dallas. According to Charlotte, James was vehemently opposed to any wage withholding. She believed James’s retaliatory fervor to remain unemployed after he lost his job in Dallas accelerated in June 2002, when she asked the attorney general’s office to enforce the child support order because he had stopped paying monthly, or paid less than the amount of child support due.

Charlotte also testified that she believed James had unreported income, because he “always has side jobs.” At trial, James admitted to doing some remodeling work while they were married and to not reporting that income. Prior to trial, Charlotte had observed James wearing work clothes and work boots when he picked up their child for visitation. She further testified she had seen construction plans in his vehicle. Additionally, a letter from James’s attorney was admitted into evidence stating that James was seeking employment “but the only job he has is working with his dad making $15.00 per hour.” This letter was dated during the time period James claims he was unemployed and receiving unemployment compensation. In sum, Charlotte presented evidence supporting an implied finding of James’s intentional unemployment.

Moreover, as the fact-finder, the trial court had the discretion to disbelieve James’s testimony; the court was not required to accept James’s evidence of his income and net resources as true. See Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (trial court’s grant of partial reduction in support was proper exercise of discretion in light of conflicting and unreliable evidence of movant’s income); In re Mamage of Bertram, 981 S.W.2d 820, 825-26 (Tex.App.-Texarkana 1998, no pet.) (trial court’s denial of joint managing con-servatorship was proper exercise of discretion in light of conflicting evidence of best interests of the children). Because the trier of fact is in a better position to determine the candor, demeanor, and credibility of the witnesses, we will not substitute our judgment for the trial court’s. See, e.g., Noms v. Norris, 56 S.W.3d 333, 343 (Tex.App.-El Paso 2001, no pet.). It is apparent by its ruling the trial court disbelieved James’s testimony that he was actively seeking employment, had no income since March 2002 other than unemployment compensation, and was so debilitated by the automobile accident that he was unable to work.

In sum, it was not unreasonable for the trial court to find that James failed to meet his burden of proving a material and substantial change in circumstances, nor was it unreasonable for the trial court to find that James was intentionally unemployed. Consequently, the court was entitled to look to his earning potential based on his work experience. In light of this, it was reasonable for the trial court to conclude James was able to pay child support as ordered in the Decree. Finding sufficient evidence, we conclude the trial court acted neither arbitrarily nor unreasonably in denying modification of the child support order. See In re P.J.H., 25 S.W.3d at 405. Therefore, we overrule James’s first and eighth issues.

D. Did trial court abuse its discretion in awarding Charlotte attorney’s fees?

In his fifth, sixth, and seventh issues, James appeals the trial court’s award of $2,250 in attorney’s fees to Charlotte.

Specifically, in his fifth issue, James argues the trial court erred in awarding the attorney’s fees without pleading, notice, evidence, or hearing, and without regard to section “156.123” of the Family Code. Because there is nothing in the record to indicate James made this argument in the trial court, he has waived it for our review. See Tex.R.App. P. 33.1(a).

However, even assuming James had preserved his arguments regarding the lack of pleadings, we find them without merit. In Charlotte’s “First Original Answer and Request for Disclosures,” she specifically requested the court “deny the relief requested and grant ... her attorney’s fees as costs and for such [other] and further relief to which [she] may show herself entitled.” This pleading was sufficient to support an award of attorney’s fees. See, e.g., Daniels v. Allen, 811 S.W.2d 278, 280 (Tex.App.-Tyler 1991, no writ) (involving a judgment awarding one-half of attorney’s fees as costs enforceable as child support, and holding that a prayer for general relief supports any relief raised by the evidence- and pleadings consistent with allegations in the petition).

We also conclude James’s assertion regarding a lack of evidence to support the award of attorney’s fees is also without merit. In family law matters, the trial court has broad discretion in awarding attorney’s fees, particularly in those matters involving the parent-child relationship. TEX. FAM. CODE ANN. § 106.002 (Vernon 2002); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.1996). However, the award of attorney’s fees must be supported by evidence. Thomas v. Thomas, 895 S.W.2d 895, 898 (Tex.App.-Waco 1995, no writ). To support a request for reasonable attorney’s fees, testimony should be given regarding the hours spent on the case, the nature of preparation, complexity of the case, experience of the attorney, and the' prevailing hourly rates. Goudeau v. Marquez, 830 S.W.2d 681, 683 (Tex.App.-Houston [1st Dist.] 1992, no writ). Sworn testimony from an attorney concerning an award of attorney’s fees is considered expert testimony. Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144,148 (Tex.App.-Houston [1st Dist.] 1986, no writ).

At trial, Charlotte testified she hired Mary Quinn as her lawyer and paid her a retainer of $2,500. Quinn also testified, stating that she was a licensed lawyer familiar with reasonable and necessary fees for this type of case, and that she had worked over 18 hours on the case through trial at $225 per hour. "James’s attorney cross-examined Quinn about the extent of her work, which resulted in a brief summation of documents she reviewed and other actions taken in the case.- This evidence is sufficient to support the award of attorney’s fees. We hold that the trial court did not abuse its discretion in awarding $2,250 in attorney’s fees to Charlotte. See In re G.J.S., 940 S.W.2d 289, 295 (Tex. App.-San Antonio 1997, no writ); MacCal-lum v. MacCallum, 801 S.W.2d 579, 587 (TexApp.-Corpus Christi 1990, writ denied).

In his sixth issue, James argues the trial court erred by awarding attorney’s fees without a specific finding under section 156.005 of the Family Code. However, James fails to make any argument or cite to any authority in his brief in connection with the issue. Therefore, James has waived the issue on appeal. See Tex. R.App. P. 38.1(h); Sterling v. Alexander, 99 S.W.3d 793, 798-99 (TexApp.-Houston [14th Dist.] 2003; pet. denied). Accordingly, James’s sixth issue is overruled.

In his seventh issue, James argues that the award of attorney’s fees as child support constitutes error. We review an award of attorney’s fees in the nature of child support for an abuse of discretion. See, e.g., In re AJ.L., 108 S.W.3d 414, 421 (Tex.App.-Fort Worth 2003, pet. denied) (holding trial court abused its discretion in awarding attorney’s fees in the nature of child support against a non-parent who was not obligated to pay child support).

Attorney’s fees rendered in a suit affecting the parent-child relationship may be awarded as “necessaries” to the children. London v. London, 94 S.W.3d 139, 146 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing to Roosth v. Roosth, 889 S.W.2d 445, 456 (TexApp.-Houston [14th Dist.] 1994, writ denied)); see In re AJ.L., 108 S.W.3d at 422 (noting that an order to pay attorney’s fees as child support is interpreted as an order to pay attorney’s fees as “necessaries” for the benefit of the child). An award of fees in this manner is based on the principle that parents have a legal duty to support their children and, as such, the award is not a “debt” within the prohibition of Article I, Section 18 of the Texas Constitution. TEX. CONST. Art. I, § 18 (“No person shall ever be imprisoned for debt.”); see TEX. FAM. CODE ANN. § 154.001 (Vernon 2002); London, 94 S.W.3d at 146; Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993). Thus, if the services performed by the attorney have a relationship to the needs of the child, they may be construed as “necessaries.” See Roosth v. Roosth, 889 S.W.2d 445, 456 (Tex.App.-Houston [14th Dist.] 1994, writ denied).

In this case, after reviewing the evidence, we cannot say that the services performed by Charlotte’s attorney had no relationship to the needs of the child. See Roosth, 889 S.W.2d at 456. We begin by noting that by virtue of the proceeding, James was attempting to have his child support obligation decreased. At trial, testimony was presented that James was behind in reimbursing Charlotte for medical expenses which she had incurred for their daughter. These unreimbursed expenses increased Charlotte’s credit card debt. Further, Charlotte testified that although James was supposed to pay $800 per month in child support, he paid well under that amount each month and paid only sporadically, testifying that he “pays whatever, whenever.” When asked how James’s failure to pay child support obligations as prescribed by the Decree had affected her, Charlotte testified it affected her “terribly,” stating that she is unable to budget for the month because she never knows when she is going to receive money from him. In addition, she testified that on more than one occasion, James had threatened to drag out their litigation, keeping her in court. She further stated that she had no more savings and had to borrow money to pay her attorney.

Although there is some disagreement among Texas appellate courts concerning attorney’s fees rendered as child support in non-enforcement cases, in London v. London, we examined an award of attorney’s fees enforceable as child support and acknowledged that attorney’s fees may be awarded as “necessaries” to the child in a suit for modification. 94 S.W.3d at 145-47. Several other courts have reached the same conclusion. See, e.g., A.J.L., 108 S.W.3d at 422 (construing order to pay attorney’s fees as child support as order to pay necessaries for benefit of the child, in modification suit); H.S.N., 69 S.W.3d 829, 835 (Tex.App.-Corpus Christi 2002, no pet.) (finding no abuse of discretion in award of attorney’s fees as child support regarding motion to modify and motion to transfer); see also Ex parte 'Wagner, 905 S.W.2d 799, 803 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding) (finding award of attorney’s fees as child support in paternity action was consistent with public policy and Texas Constitution regarding legal duty of parent to support child); Daniels v. Allen, 811 S.W.2d 278, 280 (Tex. App.-Tyler 1991, no writ) (noting, “[i]t is settled that' attorney’s fees rendered in prosecution or defense of a suit affecting the parent-child relationship may be awarded as necessaries to the child”). Recently, however, in In re Moers, the First Court of Appeals examined section 157.167 of the Family Code and determined that an award of attorney’s fees as child support is permissible only in a child-support enforcement proceeding. In re Moers, 104 S.W.3d 609, 611 (TexApp.-Houston [1st Dist.] 2003, no pet.). James relies on Moers in support of his argument.

We note, in Moers, our sister court relied in part on our holding in Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex.App.Houston [14th Dist.] 1994, orig. proceeding), to support its contention. However, in Roosth v. Daggett, we stated that attorney’s “[flees accrued as ‘other than necessities for a child’s support’ are a debt, and are not enforceable by contempt.” 869 S.W.2d at 636-37. Importantly, in Roosth v. Roosth, we held that based on the evidence, the trial court did not abuse its discretion in awarding the attorney’s fees to Roosth’s former wife as “necessaries” incurred for the benefit of the minor children. 889 S.W.2d at 456-57. Based upon the binding precedent of our decisions in Roosth v. Roosth and, more recently, in London v. London, we reject James’s assertion that Moers controls our decision, and find that attorney’s fees may be awarded as “necessaries” of the child in this case.

In sum, we hold it was not an abuse of discretion for the trial court to award the attorney’s fees to Charlotte as additional child support. See De La Pena, 999 S.W.2d at 526 (holding an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision). James’s fifth, sixth, and seventh issues are overruled.

E.Did the trial court abuse its discretion by permitting an Assistant Attorney General to be present at trial?

In his ninth issue, James complains about the presence of an assistant attorney general who signed off on the order denying the modification. We have reviewed the record and find neither James nor his trial counsel made any complaint in the trial court regarding the presence of the assistant attorney general. See TEX. R. APP. P. 38.1. In fact, the reporter’s record reflects that the assistant attorney general identified herself on the record to the judge as a courtesy only; she did not participate in the trial. Further, the record indicates James invited the assistant attorney general’s presence at trial, because, as James testified, he had attempted to consolidate his suit to modify his child support obligation with the later-filed Title IV-D enforcement action. Also, we find no explanation for, or objection to, the signature of the assistant attorney general on the order denying the child support modification. Because no error was preserved for appellate review, we overrule this issue. See TEX. R. APP. P. 33.1(a).

F. Did the trial court abuse its discretion in admitting hearsay statements?

In issue ten, James contends the trial court abused its discretion by allowing him to interpret a statement in a letter written by his attorney to Charlotte’s attorney, claiming it was objectionable hearsay. To preserve error for appeal, a party must make a timely, specific objection or motion to the trial court stating the grounds for the ruling sought with sufficient specificity. TEX. R. APP. P. 33.1.

The letter in question was admitted into evidence without objection. Thereafter, Charlotte’s attorney asked, “What is your interpretation? Please read what that statement says.” Later, Charlotte’s attorney asked, “So, this letter says you have a job with your father making $15 an hour, correct?” No objection was made to the question and James answered it. Failure to object in a timely and specific manner during trial forfeits any right to voice complaints about the admissibility of evidence on appeal. See Tex.R.App. P. 33.1(a); Atl. Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex.App.-Houston [14th Dist.] 1991, writ denied). In addition, even if the question invited inadmissible hearsay, James has failed to allege or show he was harmed by the admission of this evidence. See Tex.R.App. P. 44.1. We therefore overrule James’s tenth issue.

G. Did the trial court abuse its discretion by allowing James’s attorney to withdraw?

James next argues the court erred in permitting his attorney to withdraw from representing him two days before the trial court signed the order denying modification of the child-support obligation. On November 18, 2002, James’s attorney filed a motion to withdraw. The trial court granted the motion on November 20, 2002. The- order in question clearly contains James’s signature agreeing to his counsel’s withdrawal. On appeal, James can hardly be heard to complain because the trial court complied with his request. Error, if any, was waived by his conduct. See GTE Mobilnet of S. Tex., Ltd. P’ship v. Pas-couet, 61 S.W.3d 599, 620 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (finding waiver when party asserted as error action taken by trial court at party’s request). Moreover, James failed to present any alleged error or irregularity about the timing of the withdrawal of his lawyer to the trial court prior to appeal. See id. For this additional reason, any alleged error is waived. See TEX. R. APP. P. 33.1(a). Accordingly, we overrule James’s tenth issue.

H. Did the court err by allegedly violating Canon 3(B)(8)?

Finally, James contends the trial court committed a breach of Canon 3(B)(8) of the Code of Judicial Conduct. In order to avoid waiver of an issue on appeal, a party must discuss in his brief the facts and the authorities upon which he relies to maintain the issue. McPherson Enters., Inc. v. Producers Coop. Mktg. Ass’n, Inc., 827 S.W.2d 94, 96 (Tex.App.Austin 1992, writ denied); see also Clone Component Distribs. of Am., Inc. v. State, 819 S.W.2d 593, 597 (Tex.App.-Dallas 1991, no writ) (finding that appellant’s brief must include page references to record, citations of authorities relied upon, and discussion of facts to support point at issue). A party waives a point by failing to provide supporting argument and authorities. McPherson, 827 S.W.2d at 96. Because James has not provided any record cites or authority, his argument is waived. See Tex.R.App. P. 38.1. Accordingly, we overrule issue eleven.

For the foregoing reasons, the judgment of the trial court is affirmed.

      . Both parties retained counsel in the lower court, but are pro se on appeal.

      . The Decree required all child support payments to be paid through the Child Support Division of the Harris County District Clerk’s office. An order for withholding from earnings was also signed by the court.

      .Initially, James sought to modify child support and the terms of possession and access because he had moved to Dallas. However, at trial, his attorney represented to the court that James had abandoned all relief except the reduction of child support.

      . This section, entitled "Findings in Child Support Order” states:
      Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if:
      (1) a party files a written request with the court not later than 10 days after the date of the hearing;
      (2) a party makes an oral request in open court during the hearing; or
      (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines.
      TEX. FAM. CODE ANN. § 154.130(a)(l)B(3).

      . James cites to this court’s holding in Omo-dele v. Adams, No. 14-01-0999-CV, 2003 WL 133602, (Tex.App.-Houston [14th Dist.] 2003, no pet.) (not designated for publication) to support his contention that the trial court was required to make certain findings in this case. However, Omodele involved an appeal from an actual divorce proceeding where this court determined that the child support award granted by the trial court exceeded the child support guidelines established in the Family Code. See 2003 WL 133602, at *4.

      . A letter in the record indicates James resigned from SpawMaxwell and was given $3,000 in exchange for a release of all claims against the company, but James testified that actually he was laid off as a consequence of the September 11th tragedy.

      . Although James was a skilled carpenter, he was no longer required to do heavy labor (i.e., sheetrock and ceiling tile labor) because he was a construction project manager.

      . Charlotte filed a request with the Texas attorney general's office to enforce the child support order under Title IV-D. The attorney general filed an enforcement proceeding and it was scheduled for trial in May 2003.

      . Although James cites to “156.123” in the statement of his issue, there is no such section in the Family Code. We presume his issue is directed towards section 154.123.

      , As noted, James’s additional assertions in his fifth issue regarding notice, hearing and section 156.123, were inadequately briefed and therefore, waived on appeal. See TEX. R. APP. P. 38.1(h).

      . Specifically, James lists his seventh issue as, "The trial court erred by awarding attorney's fees without sufficient evidence to support the amount of the award and without a specific finding that the attorney’s fees were 1) in fact paid by Appellee, and 2) were diverted from the benefit of the child.” We previously have addressed the evidence in support of the award. In addition, James fails to provide any argument or authority for his claims that specific findings were necessary regarding whether the fees were in fact paid by Charlotte and whether the money was diverted from the benefit of the child. Based upon the argument and authority provided by James, we construe his argument to be that as we have set forth above.

      . Indeed, the trial court construed the objective of the proceeding as determining "whether or not [James] intentionally quit his job and is trying to hide what new jobs he has to keep from paying child support.”

      . At the time of the hearing in November 2002, James had not reimbursed Charlotte for the entire year of medical expenses.

      .“The trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel’ the forces, powers, and influences that cannot be discerned by merely reading the record.” In re De La Pena, 999 S.W.2d 521, 526 (Tex.App.-El Paso 1999, no pet.) (quoting In re A.D.H., 979 S.W.2d 445, 447 (Tex.App.-Beaumont 1998, no pet.)).

      . This court ultimately reversed the award of attorney’s fees incurred in the modification suit and awarded as child support because sufficient evidence was not presented to support the award. London, 94 S.W.3d at 147. Here, as previously stated, sufficient evidence was presented through Quinn’s expert testimony.

      . Under section 157.167 of the Family Code, attorney’s fees may be assessed against a respondent if the court finds he has failed to make child support payments. TEX. FAM. CODE ANN. § 157.167(a) (Vernon 2002). Fees ordered under that section may be enforced “by any means available for the enforcement of child support, including contempt.” Id. § 157.167(c).

      . The amount of attorney’s fees awarded as child support in Moers was over $140,000.

      . In Moers, the First Court of Appeals also applied a de novo standard of review. Here, we find that an abuse of discretion standard applies. Moreover, in that case, it was not alleged the petitioner was intentionally unemployed.

      .In Roosth, the relator sought a writ of mandamus to enjoin the trial judge from holding him in contempt for violation of a turnover order. 869 S.W.2d at 635. The relator had been ordered to pay $92,595 in attorney’s fees “incurred for the benefit of the minor children.” Id. Roosth appealed his divorce without filing a supersedeas bond. Id. His former wife’s attorneys proceeded to execute on the award and the trial court signed a turnover order requiring Roosth to satisfy the money judgment. Id. His former wife then filed a motion to enforce the child support order and a motion to hold Roosth in contempt for violation of the turnover order. Stating that the attorney's fees were not incurred for the enforcement of child support, but rather from a joint divorce proceeding and suit affecting the parent-child relationship and the fees were designated as costs, this court held the fees were a debt that could have been suspended had Roosth filed a su-persedeas bond. Id. at 637. We conditionally granted the writ directing the trial court to refrain from holding Roosth in contempt of the turnover order. Id.


text:
    Jose Medrano GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 14-01-00949-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 13, 2004.

      John J. Davis, Angleton, for appellant.
    David Bosserman, Angleton, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   MEMORANDUM OPINION ON REMAND

ADELE HEDGES, Chief Justice.

Appellant Jose Medrano Garcia appealed his felony conviction for sexual assault after having been sentenced by the trial court to eight years’ confinement. This court affirmed his conviction. The Court of Criminal Appeals, however, reversed that judgment in holding that (1) the presence of a bilingual individual beside the Spanish-speaking defendant did not satisfy appellant’s Sixth Amendment right under the Confrontation Clause to an interpreter, (2) appellant was not required to object at trial to the lack of an interpreter in order to preserve error for appeal, and (3) the trial court’s failure to appoint an interpreter for appellant violated appellant’s Sixth Amendment right to confront the witnesses against him. See Garcia v. State, 149 S.W.3d 135 (Tex.Crim.App. 2004). The Court of Criminal Appeals remanded the case to this court to resolve whether such a failure constitutes harmful error. See id. at 145. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App. P. 47.4. We reverse the judgment of the trial court and remand appellant’s case for a new trial.

On remand, the sole issue before this court is whether the trial court’s failure to appoint an interpreter for appellant constitutes reversible error. We must reverse appellant’s conviction unless we determine beyond a reasonable doubt that the error did not contribute to his conviction or punishment. See TexRApp. P. 44.2(a); Delaware v. Van Arsdall, 475 U.S. 673, 684,106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The State argues that the trial court’s error is harmless because appellant was able to review the State’s evidentiary file prior to trial with his attorney and was able to communicate with him during trial through the help of a translator. We disagree.

In its opinion reversing the prior decision of this court, the Court of Criminal Appeals noted that the “leading case in this area,” and a case which is “strikingly similar” to the one now before us, is United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir.1970). See Garcia, 149 S.W.3d at 141. In Negron, the court concluded: “In view of the importance of [the testimony of the investigator for the district attorney’s office] and the large number of other witnesses who testified in English against Negron, the -denial of so important a right to Negron cannot be regarded as ‘harmless’.” 484 F.2d at 391 n. 9. The Negron court also emphasized the fact that the defendant there could not “understand the precise nature of the testimony against him” at trial and his “incapacity to respond to specific testimony would inevitably hamper the capacity of his counsel to conduct effective cross-examination.” Id. at 389-90.

In light of the authority above, we find unpersuasive the State’s argument that appellant’s pre-trial access to the State’s evidentiary file and his ability to communicate with his attorney during trial through the bilingual interpreter neutralized his inability to understand the testimony of nearly all of the witnesses against him, thereby making the error harmless. The State presented the testimony of seven witnesses against appellant: (1) Maria Erica Mendoza, the complaining witness, (2) Jessica Seladon, the complaining witness’s sister, (3) Rosalina Seladon, thé complaining witness’s mother, (4) Ava Rodriguez, interim custodian of records at Brazosport Memorial Hospital, (5) Veronica Jones, a victim’s advocate with the Women’s Center in Brazoria County, (6) Rafael Mendoza, the complaining witness’s husband, and (7) Greg Ross, an officer with the Richwood Police Department. The undisputed evidence before the trial court was that appellant understood the testimony of only Rosalina Seladon, who testified in Spanish, and did not understand the testimony of any of the other six witnesses, all of whom testified in English. Perhaps most importantly, appellant did not understand the testimony of the complaining witness, Maria Erica Mendoza, who was the only witness (save for appellant) that was present when the incident in question occurred.

Because appellant could not understand the testimony of the complaining witness and that of the large number of witnesses against him, it is inevitable that this incapacity hampered his attorney’s ability to effectively cross-examine the State’s witnesses and, consequently, appellant’s ability to participate in his own defense. Harmless error analysis for Confrontation Clause violations assumes that “the damaging potential of the cross-examination [would have been] fully realized”; therefore, we cannot say beyond a reasonable doubt that this error did not contribute to appellant’s conviction. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. Accordingly, we reverse the judgment of the trial court and remand appellant’s case for a new trial.

      . See Garcia v. State, No. 14-01-00949-CR, 2002 WL 31525586 (Tex.App.-Houston [14th Dist.] November 14, 2002).