author: DAVID GAULTNEY, Justice.

text:
    DELOITTE & TOUCHE NETHERLANDS ANTILLES AND ARUBA and Deloitte Touche Tohmatsu, Appellants, v. Hans Jurgen Gustavo ULRICH, et al., Appellees.
    No. 09-04-449 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 7, 2005.
    Decided Aug. 25, 2005.

      M. Byron Wilder, C. Glen Morris, Aaron R. Miller, Gibson, Dunn & Crutcher, LLP, Dallas, Mark B. Holton, Gibson, Dunn & Crutcher, LLP, New York, NY, for appellants.
    Gerald T. Drought, Edward C. Snyder, Karla R. Pascarella, Martin, Drought & Torres, Inc., San Antonio, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

DAVID GAULTNEY, Justice.

The issue in this interlocutory appeal is whether the trial court has personal jurisdiction over two defendants. Fifty-four investors have sued various individuals, a bank, an accountant, an accounting firm, and an international association of accounting firms for wrongful conduct associated with an allegedly fraudulent securities scheme. The investors assert various causes of action, including negligence, negligent misrepresentation, aiding and abetting fraud, conspiracy, conversion, aiding and abetting violations of the Texas Securities Act, and breach of fiduciary duty, against Deloitte & Touche Tohmatsu (DTT), an association of accounting firms, and Deloitte Touche Netherlands Antilles and Aruba (DTNA), an accounting firm. Plaintiffs’ claims against DTNA and DTT concern audits of Integra Bank.

DTNA and DTT challenged the Texas court’s jurisdiction. The trial court denied their special appearances, and DTNA and DTT filed this accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem.Code Ann. 51.014(a)(7) (Vernon Supp.2005). We affirm.

Personal Jurisdiction

The investors — plaintiffs and interve-nors in the trial court — assert the trial court has specific and general jurisdiction over DTT and specific jurisdiction over DTNA as a result of business contacts in Texas. For specific jurisdiction over DTNA, plaintiffs point to the following contacts: DTNA representatives’ trips to The Woodlands, Texas, for audit work relating to Integra Bank and other entities; regular communications and contacts on matters essential to the audits with Integ-ra Bank management and related entities in The Woodlands, Texas; and communications and contacts with other Texas-based professionals and companies on matters related to the Integra Bank audits. Plaintiffs allege DTNA and DTT committed torts in Texas, and point out that the money plaintiffs lost in the allegedly fraudulent scheme was held by and transferred through accounts in Texas. Plaintiffs also assert that the Texas contacts of Deloitte and Touche entities should be attributed to DTT under parent/subsidiary, alter ego, agency, and joint enterprise theories, and that DTT itself has employees and an office in Texas.

The Texas long-arm statute provides for the exercise of jurisdiction over non-resident defendants. See Tex. Crv. PRAC. & Rem.Code Ann. § 17.042 (Vernon 1997). The statute extends as far as the federal constitution permits. See generally Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 788, 795 (Tex.2005). Therefore, courts focus on the federal constitutional due process requirements for the exercise of personal jurisdiction. See Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Under the due process clause, jurisdiction is proper if a nonresident defendant has “minimum contacts” with Texas, and maintenance of the lawsuit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002). The “minimum contacts” analysis requires “ ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)).

The touchstone of the jurisdictional due process analysis is the “purposeful availment” requirement. See Michiana, 168 S.W.3d at 784. Due process precludes a nonresident defendant from being haled into a jurisdiction solely on the basis of random, fortuitous, or attenuated contacts, or because of the unilateral activity of another party or a third person. See Burger King, 471 U.S. at 475, 105 S.Ct. 2174; American Type Culture Collection, 83 S.W.3d at 806. Foreseeability is a factor to consider, but foreseeability alone will not support personal jurisdiction. CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex.1996). The ‘“foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Burger King, 471 U.S. at 474, 105 S.Ct. 2174 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)).

Personal jurisdiction may be either general or specific. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). General jurisdiction requires that a defendant’s purposeful contacts in a forum state be continuous and systematic. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 796 (Tex.2002). The contacts or activities must be substantial such that the State is justified in exercising power over the nonresident as though it were a resident; that is, in the general jurisdiction context, jurisdiction exists even if the claim does not arise from or relate to the activities conducted within the State. Id.; see also CSR, 925 S.W.2d at 595. Specific jurisdiction over the defendant “is established if the defendant’s alleged liability arises from or is related to an activity conducted within the forum.” BMC, 83 S.W.3d at 796.

Whether the trial court has personal jurisdiction over a defendant is a question of law. American Type Culture Collection, 83 S.W.3d at 805-06. In resolving this question of law, a trial court must sometimes resolve questions of fact. Id. at 806. The focus should be on the defendant’s contacts with the State, rather than on the underlying merits of the case. Michiana, 168 S.W.3d at 790-92. An appellate court reviews a jurisdictional determination de novo. American Type Culture Collection, 83 S.W.3d at 805-06.

The InterAmericas Group

Plaintiffs are Mexican citizens, residents, or business entities that invested in Integra Bank. Integra Bank was incorporated as a Netherlands Antilles bank on July 26, 1990, and engaged in international banking business. No one from Curacao, Netherlands Antilles, held an account in the bank. Part of a group called InterAm-ericas, Integra Bank had most of its money invested in loans. Plaintiffs invested in the InterAmericas Group and were informed their accounts were managed by and through InterAmericas’ personnel in The Woodlands, Texas.

The InterAmericas is a group of domestic and offshore companies owned or controlled by Hugo Pimienta, his family, and three other partners. Pimienta and the partners in the “Group” also controlled and operated Integra Bank from The Woodlands and made all major decisions regarding loans and investments for the bank. Although two of Integra Bank’s directors were located in the Netherlands Antilles, some, if not most, of the business and accounting operations were conducted in The Woodlands. Investors’ funds were held in Integra Bank’s name at banks in Texas.

The “administrative operations” and “back office accounting” for Integra Bank were “out-sourced” to Texas companies, first IBI and later Gamma Capital Services, both in Houston or The Woodlands. Both IBI and Gamma were companies in the InterAmericas Group. Integra Bank’s general ledger, source documentation (loan files, “bank statements,” payroll data of personnel), and internal controls were in Curacao. The trial balances and subledg-ers were partially kept in Houston and partially in Curacao. Most, if not all, of the administrative functions were conducted in Houston: the Bank’s customer statements were printed and sent out from Texas though the process was coordinated by the local management in Curacao; the trial balance data originated in Texas and was sent to Curacao from Texas; customer orders and transactions were processed in Houston; confirmations for Integra Bank went directly from Houston to the customers; and reconciliation of the various transactions was done in Houston. There is also evidence that Jerry Simpson, the in-house accountant in Texas for the Inter-Americas Group, used the accounting support information generated in Texas to prepare the financial statements for Integ-ra Bank. Further, one of DTNA’s auditors testified, “I don’t know the exact percentage but once the back office operations were being done in Houston, it’s ... only logical that most of the accounting would be done there.”

DTNA and DTT

DTNA, an accounting firm organized under the laws of the Netherlands Antilles, has no offices, telephone numbers, mailing addresses, bank accounts, business agents, taxpayer identification numbers, agents for service of process, real property, or personal property in Texas. No partner or employee resides in Texas. With the exception of the specific contacts with Texas in this case, DTNA does not solicit business or advertise in Texas and has not entered into any contracts to perform services in Texas.

DTT, a Swiss verein, is described by DTT as a membership association composed of individual accounting firms that conform to the verein requirements and use the international Deloitte Touche practice name granted to the local firms by DTT. DTNA is a member of the verein, as is Deloitte & Touche-U.S. Appellees assert DTT has individual firm employees who are “seconded” to the verein and who do the verein’s work in its office in Houston, Texas. DTT asserts it has no offices, “salaried” employees, property, telephone numbers, mailing addresses, bank accounts, licenses to do business, or agents for service of process in Texas, and does no “commercial” business in Texas. Instead, DTT borrows its Texas office and employees from a member firm and reimburses the member firm its costs at the end of the year.

The Audits

Over a three-year period from 1997-1999, DTNA contracted to audit Integra Bank. DTNA knew from the first meeting with Integra Bank’s representatives in 1997 that the majority of the bank’s accounting records were not maintained in Curacao. DTNA concedes this practice was a violation of the banking regulations in the Netherlands Antilles. DTNA knew the firm would have to evaluate the organization of the bank’s Texas accounting.

Anthony Cijntje, a partner in DTNA, communicated with Integra Bank’s Roberto Canales regarding DTNA’s acceptance of the audit responsibilities while Canales was in Texas. DTNA representatives met with the “back office” personnel in The Woodlands. While in The Woodlands, DTNA representatives conducted interviews with personnel at Gamma Corporation regarding DTNA’s evaluation of the accounting procedures being done there by Gamma for Integra Bank. DTNA checked the customers’ statements to determine whether they had been shipped correctly; while in Texas, DTNA representatives conducted and “checked out” the “confirmation” process. Cijntje, a DTNA partner, testified the internal controls had to be tested both in Curacao and Houston to comply with GAAP (Generally Accepted Accounting Principles), while Alvin Francisco, a DTNA employee, said DTNA could rely on the report of the Texas service provider’s auditor, and a trip to Texas was unnecessary. Plaintiffs’ accounting expert testified an on-site visit to Texas would be necessary to observe the application of internal controls. Regardless, the purpose of DTNA’s trips to Houston was to see whether the “out-sourced” administrative operations existed, how they functioned, and to what extent DTNA needed to take those into account for its audit in Curacao.

DTNA — Specific JuRisdiction

Plaintiffs rely on Gutierrez v. Cayman Islands Firm of Deloitte & Touche, an accounting malpractice case, to support the trial court’s finding of specific jurisdiction over DTNA. Gutierrez, 100 S.W.3d 261 (Tex.App.-San Antonio 2002, pet. dism’d). InverWorld, an investment firm organized under Cayman law but headquartered in San Antonio, contracted with DT-Cayman to serve as InverWorld’s independent accounting and auditing firm for each of five years. Id. at 265-66. InverWorld main-tamed a place of business in Texas, and the contract between InverWorld and DT-Cayman apparently was made performable in Texas. Id. at 271. DT-Cayman had no offices, property, or employees in Texas. Id. at 266. InverWorld’s offices, books, records, and computers were all located in San Antonio. Id. at 269. DT-Cayman engaged the Texas branch of DT-US to perform the bulk of the auditing work in San Antonio. Id. at 266, 270. Although DT-Cayman never sent its employees to Texas, DT-Cayman asked for clarification on the audit work when necessary, examined the audits carried out by DT-Texas, retained the right to grant final approval, and issued the final auditor’s report each year. Id. at 270. DT-Cayman placed hundreds of faxes and phone calls and wrote letters to DT-Texas and InverWorld in San Antonio. Id. Based on these facts, the Gutierrez court found DT-Cayman’s activities were purposefully directed at Texas. Id. at 272-273. The court explained that “because DT-Cayman knew it was serving a firm managed entirely in San Antonio,” DT-Cayman “would be hard pressed to argue its relationship with Texas was random, fortuitous, or attenuated.” Id. at 273.

Like InverWorld, Integra Bank was organized under foreign law, and, like InverWorld, Integra Bank contracted with a Deloitte Touche firm in the country of its origin to perform audit work. In both instances, substantial portions of the work had to be done in Texas. In Gutierrez, DT-Cayman contracted with the Texas branch of Deloitte Touche-U.S. to do audit work at InverWorld’s San Antonio headquarters; DT-Cayman did not send any employees to Texas to handle that audit work. Id. at 266, 270. Integra Bank was not headquartered in Texas, but the record reveals administrative and accounting functions for the bank were handled in Texas by other companies in the InterAm-ericas Group. The trial court reasonably could have concluded from the evidence presented that a significant part of the Group’s primary operations, including those of Integra Bank, were centered in Texas. Integra Bank engaged DTNA to do the bank’s audits for 1997, 1998, and 1999. Unlike DT-Cayman in Gutierrez, DTNA did not contract with DT-U.S. to do the Texas portion of Integra’s audit. Instead, DTNA sent one of its partners, along with other senior DTNA accountants, to Texas to personally handle that portion of the work here.

The issue presented is whether DTNA purposefully availed itself of the benefits of doing business in Texas, or whether, as DTNA argues, the Texas business contacts are the result of the unilateral activity by a third party and fortuitous. DTNA admits it knew from the time it accepted the audit assignment that a major part of the accounting for Integra Bank was done in Texas in violation of applicable banking regulations in the Netherlands Antilles. DTNA representatives came to Texas to evaluate the accounting functions being done in Texas. A DTNA representative communicated with a key Integra Bank official in The Woodlands. The other companies doing the accounting for the bank were also members of the Group, and DTNA representatives met with representatives of IBI (a Group member and one of the companies providing the accounting in Texas for Integra Bank) regarding the audit. Integra Bank was controlled by Group partners in The Woodlands. It is undisputed that DTNA expected to profit from its activities in Texas and received a benefit from that work as part of its audit of Integra Bank. On this record, the trial court reasonably could have concluded DTNA purposefully availed itself of the privileges of conducting those specific business activities in Texas, thus invoking the benefits and protections of the laws of Texas. DTNA could reasonably have anticipated that a Texas court would have jurisdiction over DTNA to govern DTNA’s conduct arising specifically out of its work in Texas for a bank that centered many of its activities in Texas.

The pleadings and evidence show plaintiffs’ causes of action arise from DTNA’s specific business contacts with Texas. Plaintiffs claim the defendants were negligent in performing the audit work, in determining that a control-based audit was sufficient for Integra Bank’s audit, and that use of this audit approach was part of the effort to further the defendants’ fraudulent securities scheme against the investors. There is evidence in the record that DTNA’s decision to perform a control-based audit of Integra Bank, and therefore the audit itself, relied on work performed by DTNA in Texas. Plaintiffs maintain that had defendants conducted their audits in accordance with GAAP and GAAS standards, the audits would have revealed the true status of Integra Bank’s financial and operating condition, and plaintiffs would never have invested their money with the Group, or they would have withdrawn their funds and invested elsewhere. Affidavits by the plaintiffs attest to their reliance on the audits. We do not address the merits of plaintiffs’ claims. We hold only that DTNA’s business contacts with Texas support specific jurisdiction over DTNA on the specific claims arising out of those activities conducted in Texas.

DTT — GENERAL JURISDICTION

Plaintiffs maintain the trial court has general and specific jurisdiction over DTT. We address only the general jurisdiction question because it is dispositive.

DTT is a “verein” headquartered in Zurich, Switzerland. The verein has individual accounting firm members, such as DTNA and DT-US, that pay the verein a small percentage of net revenues as a “subscription fee” which, in turn, funds the verein’s global operations. The DTT ver-ein has a board comprised mainly of the managing partners of the member firms. The verein owns the name “Deloitte & Touche” and lends that name through a license agreement to individual firms such as DTNA and DT-US. Assigned a specific territory, the individual firms use the “brand” name on their business cards, correspondence, and work product. All of the member firms manage themselves locally. DTT does not provide any audit, tax, or consulting services to the individual firms’ clients.

The verein’s goals include, among others, adherence by member firms to the highest professional standards; the fostering of international alignment, cooperation, and cohesion among the member firms; and advancement of international and national leadership of the member firms in rendering professional services. Every year the individual firm goes through a strategic planning process to confirm the firm’s training is aligned with requirements of the law. Regional managing partners go to the local firms, review and comment on the firms’ plans, and ultimately report back to the firms on the adequacy of those plans.

Plaintiffs’ pleadings assert the Texas district court has general jurisdiction over DTT, in part because DTT has an office in Texas and has continuously and systematically conducted business in the State. DTT maintains it does not have offices, salaried employees, property, telephone numbers, mailing addresses, bank accounts, licenses to do business, agents for services of process, or taxpayer identification numbers in Texas. DTT says it has not conducted any “commercial business” in Texas. In fact, a DTT representative stated, “DTT has no clients and it has no employees. It has no presence in the U.S.” Rather than engaging in what it calls “commercial business,” DTT asserts it “provides services only to its member firms.”

DTT’s corporate representative, Ben Anderson, testified he is a partner in the Deloitte & Touche U.S. firm (Deloitte & Touche LLP). Anderson explained that the cost of his office is paid for by DTT; at the end of the year, DTT reimburses the U.S. firm both for his office space and his time. He explained:

I have been completely seconded to De-loitte & Touche Tohmatsu [DTT]. I am 100 percent seconded to [DTT], which means that my duties in the U.S. firm are next to nothing. At the end of the year [DTT] then reimburses the U.S. firm for my partnership earnings.

As used here, “seconded” means the loaning of an employee by an employer to another to perform work on behalf of the second employer. Under Texas law, a general or regular employee of one employer may become the borrowed employee of another. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 537 (Tex.2002). If the other employer has the right to direct and control the details of the particular work, the person becomes the employee of the other. Id.

Anderson’s office is in Houston, and he has been 100% seconded or loaned there to DTT for over ten years. He reports to another partner who in turn reports to the CEO of DTT. In the same Houston office, there are three other Deloitte U.S. employees who are also seconded to DTT.

Anderson works from his Houston, Texas, office as “managing partner of the Latin American region” and advises those regional member firms “on the development of their tax practices in their respective countries.” A large part of his responsibility at DTT is to “help the member firms grow by targeting, marketing, sales, growth.... That’s how the verein will grow, by growing the members firms.” Anderson goes to the individual firms, reviews and comments on their plans, and evaluates the adequacy of those plans. His other function is to “develop learning modules on tax issues for the benefit of member firms around the world.” Julie Marshall is another Deloitte U.S. employee seconded to DTT in Houston. From the Houston office, Marshall, as “learning director for Latin America,” organizes, coordinates, and facilitates the training for member firms of the Latin American region. In performing their functions for DTT, both Anderson and Marshall help to advance the stated purposes of the verein.

DTT argues it has no continuous and systematic business contacts with Texas because, among other things, it has no “salaried employees” in Texas, and the seconded people in Texas do not engage in work to develop Texas business or exploit Texas markets. However, under Texas law the seconded personnel in Texas are considered DTT employees, and their work is DTT work ultimately paid for and controlled by DTT. See generally St. Joseph Hosp., 94 S.W.3d at 537-38. The sole test is not, as DTT would have it, whether DTT does “commercial” business in Texas and has “salaried” employees in Texas. As DTT explains, it does no “commercial” business anywhere; its “business” is to service its member firms. Under Texas law, the 100% seconded employees are considered employees, though borrowed, of DTT. Id. A foreign association that sets up what is, in effect, a permanent office in Texas, and uses this base for conducting out-of-state or global business, could reasonably anticipate a Texas court may exercise general jurisdiction over the firm. Though Texas is not DTT’s headquarters, DTT’s contacts with Texas are substantial; that is, they are comparable to the activities of a resident business using Texas as a base of operations.

In Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), a foreign corporation temporarily carried on in Ohio a continuous and systematic, but limited, part of the general business. Id., 342 U.S. at 438, 72 S.Ct. 413. The cause of action asserted in Perkins did not arise out of the corporations’s activities in Ohio. Id. at 446-47, 72 S.Ct. 413. The company’s mining properties were located in the Philippine Islands, and its operations there were completely halted during the Japanese occupation of the islands during World War II. Id. at 447, 72 S.Ct. 413. The company’s president, who was also the general manager and principal stockholder, returned to his Ohio home. Id. “There he maintained an office in which he conducted his personal affairs and did many things on behalf of the company.” Id. at 447-48, 72 S.Ct. 413. He kept company files there. Id. at 448, 72 S.Ct. 413. He carried on correspondence relating to the company’s business and to company employees, and distributed salary checks to himself as president and to two company secretaries who worked there with him. Id. He maintained two bank accounts containing substantial balances of company funds. Id. Several directors’ meetings were held there. Id. From his Ohio office, he also supervised policies dealing with the company’s rehabilitation of the Philippine properties and sent funds to buy equipment for the reconstruction. Id.

The Supreme Court held “he carried on in Ohio a continuous and systematic supervision of the necessarily limited wartime activities of the company.” Id. Although the corporation did not own or operate any mining properties in Ohio, many of its wartime activities were directed from Ohio and were given the personal attention of its president in Ohio. Id. The Supreme Court found these were minimum contacts sufficient for the exercise of general jurisdiction by a court in Ohio should the Ohio court choose to assert jurisdiction. Id.

In American Type Culture Collection, the Texas Supreme Court considered whether a Texas court had general jurisdiction over a foreign corporation organized under District of Columbia laws with its principal place of business in Maryland. American Type Culture Collection, 83 S.W.3d at 807. The corporation advertised in national and international journals, sold products to Texas residents for at least eighteen years, served as a repository for Texas researchers, contracted with a Texas medical center, and signed a repository contract in Maryland. Id. at 807-08. All of the services related to the repository contract were performed in Maryland. Id. The corporation also purchased approximately $378,000 of supplies from thirty-three Texas vendors, and the corporation’s representatives attended five conferences in Texas. Id. at 808. Unquestionably, there were contacts with Texas, but there was no pattern of continuing systematic activity. Id. at 809. Relying on CSR Ltd., 925 S.W.2d at 595, the Texas Supreme Court focused on the fact that the corporation had no physical presence or office in Texas, did not advertise in Texas, performed all of its business services outside Texas, and carefully constructed its contracts to ensure it did not benefit from Texas laws. American Type Culture Collection, 83 S.W.3d at 810. The Supreme Court found the corporation did not have sufficient minimum contacts with Texas. Id.

This case is distinguishable from American Type Culture Collection and more closely resembles Perkins. DTT has a physical presence in Texas, and staffs its borrowed office with a partner and employees seconded to DTT. As the managing partner for the Latin American region who gives advice to member regional firms, and as the seconded partner assisting the member firms globally, Ben Anderson uses Texas as his base of DTT operations. Julie Marshall functions for DTT as a facilitator for training programs, and she does so out of the Houston office. Various faxes and e-mails in the record demonstrate her planning and communication from the Houston office on the field sendee training programs.

We focus on the nature and quality of DTT’s contacts. See American Type Culture Collection, 83 S.W.3d at 806. DTT has a physical presence in Texas. In describing the Houston office, Anderson stated as follows:

A. What would happen, would be at the end of the year, the employees or the partner on secondment, which would be me, there would be a reimbursement to ... the U.S. firm for my time. So nothing would go to the Houston office as a result of reimbursing for my time. I’m not part of the Houston office at all. I do have an office in Houston. So what they do, is they allocate a certain percent of the office space, based on actual cost, and they reimburse it at year end.
For me and the one, two, or three or four people that are in Houston, that are employees.
Q. All right. And you said you do have an office in Houston?
A. Yes, I do.

In an affidavit filed after his deposition, Anderson made clear he and four employees in the Houston office are seconded to DTT.

Contrary to DTT’s assertion, DTT’s physical presence and contacts in Texas are not haphazard, sporadic, tenuous, isolated, or fortuitous, such that DTT could not have reasonably anticipated being haled into a Texas court. Regardless of whether the office could have been located in some other state or country, or was originally intended as a permanent presence, it is apparent from the record that DTT has maintained an office in Texas for over ten years and has staffed it with seconded employees working for DTT and using Texas as a base for DTT’s work.

Appellants rely on the holding in Gutierrez that a Texas court did not have personal jurisdiction over DTT. Gutierrez, 100 S.W.3d at 270. The Gutierrez plaintiffs argued the Texas trial court had specific jurisdiction over DTT, because it “acted as a conduit” for activities in Texas. Id. at 268. On that record, the Gutierrez court found that, aside from maintaining a website and lending its name to multiple accounting firms, DTT had no relationship to the transactions in that case. Id. DTT performed none of the work, had no interaction with the party for whom the audit was conducted, and did not perform any services for DT-Texas or DT-Cayman in connection with the audit. Id.

Gutierrez is not a general jurisdiction case. The record here establishes DTT has an actual physical presence in Texas through a Texas office and through the conduct of DTT’s business by the seconded employees in Texas. The Gutierrez court made no mention of DTT seconded employees doing their work out of a Texas office ultimately paid for by DTT, and the record in that case may not have included this information. See id.

Appellants also rely on Alenia Spazio, S.p.A. v. Reid, 130 S.W.3d 201 (Tex.App.Houston [14th Dist.] 2003, pet. filed). Reid, a Canadian citizen, filed suit in Texas against several defendants, including two Italian companies organized under the laws of Italy and headquartered in Rome. Id. at 206. Alenia, one of the Italian companies, had contracts relating to the Space Station Project with the Italian Space Administration, the European Space Administration, and a German space agency. Id. at 218. “NASA, rather than the Italian Companies, decided that some of Alenia’s services under the contracts with three European entities would be performed at the Space Center.” Id. The Italian companies had an office and employees at the Space Center in Houston for four years. Id. at 216-217. Over one hundred employees of the Italian company traveled to the Space Center in connection with the Space Station project. Id. at 216. Numerous communications were directed to individuals at the Space Center in connection with the project, and on at least two occasions, one of the Italian companies sent a shipment from Italy to the Space Center. Id. The Alenia court noted that simply “having an office in the forum state does not require a finding of general jurisdiction.” Id. at 217. The significance of the contact depends on the “type and nature” of the office maintained in Texas. Id. Nothing in the record suggested the Italian companies made any efforts to exploit Texas markets. Id. They had no bank accounts or listings in any public telephone directory in Texas, had not paid taxes or franchise fees in Texas, did not regularly advertise in Texas, and had no authorized agents to accept service of process in Texas. Id.

The facts in Alenia are distinguishable from those here. The DTT office is not a temporary presence. It is not the unilateral result of some other company’s decision. In Alenia, the court stated, “If a defendant maintains a permanent general business office through which it solicits business in Texas, then this factor tends to weigh strongly in favor of general jurisdiction.” Id. at 217. DTT does not “solicit” commercial business in Texas, or anywhere, because that is not its function. DTT’s purpose is to service its members, and it receives a small percentage of each member’s net revenues as a subscription fee to permit it to do so. A limited part of its business activity is conducted continually and systematically from a Texas base of operations, ad is of such a substantial nature and quality as to justify suit against DTT here. We hold the record here demonstrates sufficient minimum contacts to support general jurisdiction over DTT in Texas.

Fair Play and Substantial Justice

We must next consider whether the exercise of jurisdiction over DTNA and DTT by a Texas court would nevertheless offend traditional notions of fair play and substantial justice. Guardian Royal Exch., 815 S.W.2d at 228-33. In the context of a dispute involving a foreign defendant, four factors are relevant: (1) the unique burdens placed on a defendant that must defend itself in a foreign legal system; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiffs interest in obtaining convenient and efficient relief; and (4) the procedural and substantive policies of other nations whose interests are affected as well as the federal government’s interest in the policies. Id. “Only in rare cases ... will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.” Id. at 231; see, e.g., State of Rio de Janeiro of The Federative Republic of Brazil v. Philip Morris, Inc., 143 S.W.3d 497, 500-04 (Tex.App.-Beaumont 2004, pet. denied).

Appellants argue that having to litigate far from home is burdensome and would entail the gathering of evidence in Mexico, as well as proof of Mexican law. The burden of defending this case is not unique to Texas; the same evidence gathering burden would exist if plaintiffs sued in Switzerland, New York, or the Netherlands Antilles. Moreover, DTNA sent its representatives to Texas for each of three accounting years to evaluate and audit the accounting functions performed in Texas by Texas companies. Witnesses regarding the Texas portion of the audit would most likely be located in Texas. As to DTT, it is a global association with individual firm members located around the world, and it has representatives and an office in Texas. In view of this physical presence in Texas, litigating here would not be unduly burdensome or unique.

Appellants argue Texas has no interest in providing a forum for the claims. However, the plaintiffs’ pleadings allege appellants were involved in misconduct concerning audits of a company with a substantial base of operations in Texas. The evidence shows DTNA’s work was conducted at least in part in Texas, and DTT has a place of operations in Texas. As the San Antonio court explained in Gutierrez, “Texas has a strong interest in assuring the integrity of investment firms that choose to operate in the state, and we cannot permit this state to be used as a base of operations by corporations seeking shelter from our securities laws or from lawsuits.” Gutierrez, 100 S.W.3d at 274. Likewise, Texas has an interest in the trustworthiness of the audit work performed in part in Texas for diversified firms operating in Texas.

The plaintiffs themselves have an interest in adjudicating their claims in Texas. The InterAmericas Group, the entity at the hub of the causes of action, and most of the individual defendants, are located in Texas. The plaintiffs’ accounts were managed by and through InterAmer-icas’ personnel located in Texas. Appellants conducted activities in Texas — one as part of a specific project and the other on an ongoing basis.

Under the fourth prong, appellants argue that requiring DTNA to answer claims in Texas would offend the sovereign interest of the Netherlands Antilles. See Guardian Royal Exch., 815 S.W.2d at 228-29. Given DTNA’s purposeful business contacts with Texas and the interest of Texas in assuring the integrity of investment firms operating in Texas, we fail to see on this record how comity concerns are implicated.

We hold the trial court’s exercise of jurisdiction comports with traditional notions of fair play and substantial justice. We affirm the trial court’s ruling as to its jurisdiction over DTNA and DTT. The stay order issued by this Court is vacated.

AFFIRMED.

      . But see Michiana, 168 S.W.3d at 790 (Personal jurisdiction is based on a defendant's contacts with the State, not where defendant "directed a tort.”).

      . GAAP refers to Generally Accepted Accounting Principles; GAAS refers to Generally Accepted Auditing Standards.

      . Ben Anderson describes his length of secondment as follows:
      "I was first seconded from the U.S. firm to DTT in about 1992, 1993. I worked there continuously until 2003. At that time I became 100 percent back into U.S. firm. And then starting in 2004, I believe it was sometime in 2004, the dates aren't exact, I came back into DTT. So I was only out one year. Since '92-93. So it’s been ten-plus years.”


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    Martha GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 08-03-00382-CR.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2005.
    Rehearing Overruled Sept. 21, 2005.

      Luis C. Labrado, El Paso, for appellant.
    Jaime E. Esparza, District Attorney, El Paso, for state.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury conviction for the offense of interference with child custody. The jury assessed punishment at 180 days’ confinement and a $500 fine. The court probated the sentence and assessed two years’ community supervision. We afñrm.

I. SUMMARY OF THE EVIDENCE

The offense charged in this case centered around the failure of Appellant to allow her ex-husband, Albert Flores, his visitation rights for the couple’s daughter. The divorce decree named Appellant as the managing conservator of the child, and it named Flores as the possessory conservator.

On July 10, 2003, Appellant filed a motion to dismiss or quash the indictment due to selective prosecution. Appellant also served a subpoena duces tecum upon the District Attorney’s Office requesting that the District Attorney produce all cases of the offense of interference with child custody that were accepted and indicted wherein the defendant was the managing or primary conservator. In turn, the State filed a motion to quash the subpoena duces tecum.

A hearing was held on the motion to quash the subpoena duces tecum on August 1, 2003. The trial court temporarily granted the State’s motion to quash the subpoena duces tecum. On August 2, 2003, the court signed an order which granted the State’s motion to quash. The court stated in the order that in order to be entitled to discovery or a hearing on a claim of selective prosecution, the defendant must provide some evidence demonstrating the two elements of a selective prosecution claim. The court ruled that the defendant had failed to show that she was singled out for prosecution while other similarly situated and committing the same acts have not been prosecuted. Additionally, the defendant failed to show that the prosecuting authority had purposely discriminated on the basis of such impermissible considerations as race, religion, or the desire to prevent the exercise of constitutional rights.

Appellant filed another motion to quash the indictment, alleging that as Appellant had legal custody of the couple’s daughter, it was legally impossible for her to commit the offense of interference with child custody. At a hearing on August, 4, 2003, the court considered this motion to quash the indictment. Appellant’s counsel argued that as Appellant had custody of the child, and Albert Flores as a non-custodial parent, had only visitation rights, she could not interfere with custody rights that Albert Flores did not have. The court denied Appellant’s motion.

The court also heard Appellant’s motion to dismiss and quash the indictment based on selective prosecution. Appellant utilized the testimony of Victor Fierro. He stated that his ex-wife, who had only visitation rights regarding their child, had fled to Mexico with the child. He related that the District Attorney’s Office had declined to prosecute his ex-wife. The court queried if Appellant had any proof, aside from the fact that a particular case had not been prosecuted, that Appellant’s prosecution was based upon an impermissible category such as race or creed. Appellant’s counsel responded that there would be no such evidence. The court denied the motion to dismiss or quash the indictment based on Appellant’s claim of selective prosecution.

At the trial on the merits, the evidence adduced revealed that Appellant and Albert Flores were married in 1991. Two children, a boy and a girl, were born of the marriage before their divorce in 1995. The divorce decree named Appellant as the managing conservator of the two children. Flores was named possessory conservator, and was entitled to possession of the children, among other times, on Wednesday of each week from 6 p.m. to 8 p.m.

On September 25, 2002, a Wednesday, Flores went to Appellant’s residence to pick up the children. Upon arrival, Appellant told Flores that she would not allow him to take the daughter. The boy ran to Flores but the daughter remained in Appellant’s yard. Flores testified that Appellant had violated his visitation rights in a similar manner on between twenty and twenty-five occasions in the past.

Appellant testified that on the Wednesday in question, she got the children ready to go with their father. Just before 6 p.m., she took the two outside to await Flores’ arrival. The son went to Flores but the daughter stayed with Appellant. Appellant related that the daughter stated that she did not want to go with Flores, and she would not do so despite Appellant’s efforts to get the child to go to her father.

II. DISCUSSION

In Issue No. One, Appellant asserts that the interference with child custody statute is not applicable to Appellant because she was the sole managing conservator with legal custody of the child. Our understanding of Appellant’s contention is that she is contesting the court’s overruling of her motion to quash the indictment because the interference with child custody statute does not apply to a sole managing conservator. The question as to whether an individual may be prosecuted under a particular statute is a question of law and the reviewing court reviews the trial court’s ruling de novo. State v. Jimenez, 148 S.W.3d 574, 576 (Tex.App.-El Paso 2004, pet. ref'd).

In construing a statute, the reviewing court’s goal is to effectuate the intent of the Legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). The literal text of a statute is generally the only definitive evidence of the Legislature’s intent. Id. Therefore, we must ordinarily apply the “plain meaning rule,” that is, we must give effect to the statute’s plain meaning. Id. There is an exception to the plain meaning rule. “[W]here application of a statute’s plain language would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally.” Id.

Tex. Penal Code Ann. § 25.03(a)(1) (Vernon 2003) provides:

(a) A person commits an offense if the person takes or restrains a child younger than 18 years when the person:
(1) knows that the person’s taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody;....

Appellant contends that the word “custody” implies that only the non-custodial parent can commit the offense of interference with child custody. However, Tex. Fam.Code Ann. § 42.002(a) & (b) (Vernon 2002) provides:

(a) A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.
(b) A possessory right is violated by the taking, retention, or concealment of a child at a time when another person is entitled to possession of or access to the child.

Tex. Fam.Code Ann. § 42.008 (Vernon 2002) states:

This chapter does not affect any other civil or criminal remedy available to any person, including the child, for interference with a possessory right, nor does it affect the power of a parent to represent the interest of a child in a suit filed on behalf of the child.

Also, the Family Code defines “visitation” as meaning the possession of or access to a child. Tex Fam.Code Ann. § 152.102(16) (Vernon 2002). Clearly, in the present context, the word “custody” as used in Tex. Penal Code Ann. § 25.03(a)(1) (Vernon 2003) refers to a determination that includes visitation rights. Further, the statute does not expressly state that it applies only to the conduct of a non-custodial parent. We find that the plain meaning of the word “custody” in the statute encompasses both the conduct of the managing conservator and the possessory conservator who was awarded visitation rights. Issue No. One is overruled.

In Issue No. Two, Appellant maintains that the court erred in failing to grant her motion to quash the indictment on the basis of selective prosecution. Selective prosecution and vindictive prosecution are not defenses on the merits to the criminal charge, but independent assertions that the prosecutor has brought the charge for reasons forbidden by the Constitution. See United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996). Neither issue has any bearing on the determination of actual guilt; thus, they are issues for the trial court to decide, not issues for the jury. See Galvan v. State, 988 S.W.2d 291, 295 (Tex.App.-Texarkana 1999, pet. ref'd).

To support a defense of selective or discriminatory prosecution, a defendant must make a prima facie showing that (1) although others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) the government’s discriminatory selection of him has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his constitutional rights. Hall v. State, 137 S.W.3d 847, 855 (Tex.App.Houston [1st Dist.] 2004, pet. ref'd) (citing Gawlik, v. State, 608 S.W.2d 671, 673 (Tex. Crim.App. [Panel Op.] 1980)).

The presumption is always that a prosecution for violation of criminal law is undertaken in good faith and in a nondiscriminatory fashion to fulfill a duty to bring violators to justice. Hall, 137 S.W.3d at 855. An appellant claiming selective prosecution must come forth with “exceptionally clear evidence” that the prosecution was initiated for an improper reason. Nelloms v. State, 63 S.W.3d 887, 893 (Tex.App.-Fort Worth 2001, pet. ref'd).

In the present case, Appellant conceded that she had no evidence to indicate an improper motive on the part of the State regarding the prosecution. Because she had failed to present any such evidence, she has failed to establish under the requisite standard that there was an improper selective prosecution.

Appellant also contends that the court erred by granting the State’s motion to quash Appellant’s subpoena duces te-cum. In Carreras v. State, 936 S.W.2d 727, 729 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd), cert. denied, 522 U.S. 933, 118 S.Ct. 338, 139 L.Ed.2d 262 (1997) the court, citing United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), stated that the justifications for a rigorous standard of proof by the defendant in an alleged selective prosecution case require a correspondingly rigorous standard for discovery in aid of it. Accordingly, in order to be entitled to discovery relief in pursuing a selective prosecution claim, the accused must present to the trial court some evidence tending to show the existence of both elements of a selective prosecution claim; that is, both discriminatory effect and discriminatory intent. Armstrong, 517 U.S. at 468, 116 S.Ct. at 1488.

Appellant maintains that the testimony of Victor Fierro at the hearing on the motion to quash and dismiss the indictment demonstrated both requisite elements of a selective prosecution claim. However, even if Fierro’s testimony arguably shows discriminatory effect, we fail to perceive how Appellant has demonstrated discriminatory intent. At trial, Appellant stated that no such evidence would be demonstrated and it has not been demonstrated. Accordingly, Issue No. Two is overruled.

We affirm the judgment of the trial court.


text:
    Ricardo JUAREZ, Appellant, v. TEXAS ASSOCIATION OF SPORTING OFFICIALS EL PASO CHAPTER, Ruben Espinoza, Sheldon Wheeler, Dan McGlasson, Chris Gilmore, Robert Hemphill, and Edgar Dominguez, Appellees.
    No. 08-04-00283-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2005.

      Mark T. Davis, El Paso, for Appellant.
    Victor M. Firth, El Paso, for Appellees.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s entry of an Order of Dismissal based on a Rule 11 settlement agreement entered into by the parties. Appellant appeals contending that the order should not have been entered without an evidentiary hearing on any motion or pleading pending before the court. Appellees assert that the decision of the trial court was correctly issued in light of the valid Rule 11 agreement existing among the parties and alternatively that the case should be dismissed for lack of subject matter jurisdiction. Because we agree that we do not have subject matter jurisdiction over this matter, we vacate the trial court’s dismissal order and dismiss the case for want of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

The substantive facts in this case are not disputed. Appellant Ricardo Juarez was the executive secretary of the El Paso Chapter of the Texas Association of Sporting Officials, (“TASO”). TASO is a statewide organization which provides sporting officials to Texas public schools to officiate various athletic activities through its local chapters. The El Paso chapter is governed by a board of directors and officers. The organization provides officials to serve as referees at public school games, pursuant to an internal constitution and bylaws that govern the qualifications, training, and assignment of its members to officiate games.

The underlying dispute among the parties arose over the allegations of wrongdoing on the part of Appellant in connection with the assignment of Appellant to officiate at a certain game as well as certain other complaints related to Appellant’s conduct as a member of the organization. Pursuant to the bylaws and internal operating procedures of the organization, the matter was set for a hearing on January 6, 2003 and a hearing was held. Mr. Juarez and his attorney appeared and participated in the proceedings. On January 8, 2003, the board of directors issued a Notice of Board Findings pursuant to the bylaws of the organization and found a violation of the rules had occurred, suspending Appellant for a one-year period. The board also requested the Appellant comply with certain other requests, not relevant here. The notice also informed Appellant of his right to appeal the “Chapter-level decision” pursuant to the bylaws of the organization.

Appellant filed suit against TASO and the individual members of the local board of directors on February 21, 2003 alleging that the organization had violated his due process rights and that the individuals had breached their fiduciary responsibilities to Appellant and asserting a cause of action based upon a breach of contract theory. TASO filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the internal disputes of a private association are not subject to judicial review and that Appellant had failed to exhaust the administrative remedies available to him. At a status conference held July 2, 2003, the attorneys for both sides read a settlement agreement into the record. The agreement provided that the parties agreed to submit the matter to binding arbitration and provided for dismissal of the matter with prejudice.

For reasons not clear from the record, the parties did not timely submit a written, agreed order, disposing of the case, though the agreement was dictated to the court on the record in compliance with Rule 11 of the Texas Rules of Civil Procedure. Further, the record does not reflect whether the parties participated in the arbitration contemplated by the Rule 11 agreement. Included in the record is an Order of Dismissal signed by the Honorable Gonzalo Garcia, judge presiding, stating an effective date of dismissal of the 2nd of July, 2003, but filed on the 9th of June, 2004. This Court, on its own motion, ordered clarification of the record and was informed that the trial court signed the Order of Dismissal on June 1, 2004. This appeal follows.

II. SUBJECT MATTER JURISDICTION

Subject matter jurisdiction is essential for a court to have authority to decide a case. Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Subject matter jurisdiction is never presumed, and it cannot be waived. Id. at 443-44. Because subject matter jurisdiction is a question of law, our review is de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

Subject matter jurisdiction is fundamental error and may be raised for the first time on appeal. Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 893 (Tex.1986); see Texas Ass’n of Business, 852 S.W.2d at 445; Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). We must inquire into our own jurisdiction, even if it is necessary to do so sua sponte. Dallas County Appraisal Dist., 887 S.W.2d at 468; White v. Schiwetz, 793 S.W.2d 278, 281 (Tex.App.-Corpus Christi 1990, no writ). Appellate court jurisdiction of the merits of a case extends no further than that of the court from which the appeal is taken. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (1958); Ward v. Malone, 115 S.W.3d 267, 269 (Tex.App.-Corpus Christi 2003, pet. denied); Dallas County Appraisal Dist., 887 S.W.2d at 468.

If the trial court lacked jurisdiction, then an appellate court only has jurisdiction to set the judgment aside and dismiss the cause. Dallas County Appraisal Dist., 887 S.W.2d at 468; see State ex rel. Kelly v. Baker, 580 S.W.2d 611, 612-13 (Tex.Civ.App.-Amarillo 1979, no writ); see also Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961).

A. Standard of Review

Our standard for reviewing subject matter jurisdiction requires the pleader to allege facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Dallas County Appraisal Dist., 887 S.W.2d at 469; Texas Ass’n of Business, 852 S.W.2d at 446. When reviewing subject matter jurisdiction, we must construe the petition in favor of the pleader, and if necessary, review the entire record to determine if any evidence supports jurisdiction. Dallas County Appraisal Dist., 887 S.W.2d at 469; Tellez v. City of Socorro, 164 S.W.3d 823, 828 (Tex.App.-El Paso 2005, pet. filed).

“Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding.” Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (citing Fed. Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943)). Lack of subject matter jurisdiction is fundamental error that may be recognized by the appellate court, sua sponte, or raised by a party, by appellate challenge, for the first time on appeal. See id.; Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676, 681 n. 6 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (“In an appeal properly before it, an appellate court may always address fundamental error, even without an appellate challenge.”). “A judgment is void only when it is apparent that the court rendering judgment ‘had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.’ Errors other than lack of jurisdiction render the judgment merely voidable.... ” Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987) (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985)).

The question of subject matter jurisdiction is a legal question which we review de novo. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.). Our task is to examine the pleadings, to take as true the facts pleaded, and to determine whether those facts support jurisdiction in the trial court. Texas Association of Business, 852 S.W.2d at 446. We construe the pleadings in favor of the pleader. Id. If necessary, we may review the entire record to determine if there is jurisdiction. Id. If the petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. Id.

B. Facts Before Us

We have carefully reviewed the record provided on appeal and must draw the conclusion that the matter in controversy before us is precisely the type of internal dispute among members of an association wherein the courts of this state have declined to interfere. The constitution and bylaws of TASO govern membership in the organization and provide for a procedure whereby complaints against a member are addressed. Appellant, as a member of the organization, was notified of the complaints filed against him and began the process provided for in the rules. For reasons not reflected in the record, Appellant did not complete the appellate process provided for by the bylaws. Instead, he determined that he should seek judicial review of the decisions made by the association with regard to his membership therein. Regardless of the manner in which Appellant has attempted to couch his lawsuit, the courts of this state recognize the right of a private association to govern its own affairs. Appellant’s complaints clearly seek judicial intervention because he is unhappy with the outcome of the initial review of the charges and complaints filed against him. We think it is the right of a private, non-profit organization to manage, within legal limits, its own affairs without interference from the courts. See Hoey v. San Antonio Real Estate Board, 297 S.W.2d 214 (Tex.Civ.App.-San Antonio 1956, no writ); Brotherhood of Railroad Trainmen v. Price, 108 S.W.2d 239 (Tex.Civ.App.-Galveston 1937, writ dism’d); Combs v. Texas State Teachers Ass’n, 533 S.W.2d 911 (Tex.Civ.App.-Austin 1976, writ ref'd n.r.e.).

Appellant maintains that his association with TASO entitles him to certain rights and that the association’s failure to follow the procedures have deprived him of due process, amounted to a breach of contract, and was a breach of a fiduciary duty owed to him. There is no allegation or proof that Appellees’ interpretation of its bylaws which resulted in the hearing on the complaints proffered against Appellant and providing him with notice of suspension and the right to appeal, was arbitrary, fraudulent, or capricious. Nothing in the record suggests that anything that TASO has done regarding this matter was contrary to its bylaws. Appellant merely pleads conclusory allegations that TASO breached its contract with him by refusing to allow him to continue as executive secretary, that the board members owed to him a fiduciary duty which they breached, and finally, that his due process rights were violated. These allegations are not sufficient to invoke the jurisdiction of the courts of this state.

The right of a voluntary club or association to interpret its own organic agreements, such as its charter, its bylaws and regulations, after they are made and adopted, is not inferior to its right to make and adopt them, and an individual, by becoming a member, subjects himself, within legal limits, to the association’s power to administer as well as its power to make its rules. Dallas Athletic Club Pro. Com. v. Dallas Athletic Cl., 407 S.W.2d 849, 850 (Tex.Civ.App.-Austin 1966, writ ref'd n.r.e.).

The courts will not interfere with the internal management of a voluntary association so long as the governing bodies of such association do not substitute legislation for interpretation, and do not act totally unreasonably or contravene public policy or the laws in such interpretation and administration. Brotherhood of Railroad Trainmen, 108 S.W.2d 239; see also Frey v. DeCordova Bend Estates Owners Ass’n, 632 S.W.2d 877, 880 (Tex.App.-Fort Worth 1982), aff'd, 647 S.W.2d 246 (Tex.1983); Adams v. American Quarter Horse Ass’n, 583 S.W.2d 828 (Tex.Civ.App.-Amarillo 1979, writ refd n.r.e.).

As has been repeatedly held:

Courts are not disposed to interfere with the internal management of a voluntary association. The right of such an organization to interpret its own organic agreements, its laws and regulations, after they are made and adopted, is not inferior to its right to make and adopt them. And a member, by becoming such, subjects himself, within legal limits, to his organization’s power to administer, as well as to its power to make, its rules. To say that the courts may exercise the power of interpretation and administration reserved to the governing bodies of such organizations would plainly subvert their contractual right to exercise such power of interpretation and administration.... Without such latitude of action, associations organized to promote the legitimate welfare of its members would be deprived of power to do so.

Brotherhood of Railroad Trainmen, 108 S.W.2d at 241; see also Frey, 632 S.W.2d at 880.

The policy of non-intervention in the affairs of private associations, as shown above, is a well-established and a wise and necessary policy. Without such policy, organizations such as Appellees simply could not function. If the courts were to interfere every time some member, or group of members, had a grievance, real or imagined, the non-profit, private organization would be fraught with frustration at every turn and would founder in the waters of impotence and debility. Harden v. Colonial Country Club, 634 S.W.2d 56, 60 (Tex.App.-Fort Worth 1982, writ ref'd n.r.e.). For instance, if every time a member of the association did not agree with the internal procedure devised for assigning members to officiate at certain games, the law required a court or jury to resolve the dispute and establish a schedule, the organization would cease to function. Further, an association is free to establish rules of conduct and procedures that apply to membership within the organization. Constant interference by the courts would lead to a virtual inability to function with no independence of purpose. Most important, we recognize that when an association’s bylaws and constitution provide for a process by which action may be taken against a member, the member must participate in and complete the internal administrative process. We hold that the actions of the board of directors of Appellees, so long as they are not illegal, not against some public property, not arbitrary, capricious, or fraudulent, are proper actions, permissible and binding on the members of this association. See Harden, 634 S.W.2d at 60.

Appellant suggested that as an officer of a chapter, he was entitled to certain rights governing complaints against him under the bylaws of TASO. What is clear from the record, is that Appellant did not pursue any appeal to TASO. The record is not clear whether the complaints against him were related to his function as an officer of the chapter or as a member. Nothing in the record before us suggests that TASO acted improperly. At most, Appellant contends that the El Paso chapter acted prematurely or without authority to discipline him. It is clear that his appropriate remedy was to pursue his complaints with TASO. This he did not do. We recognize that Appellees have the right to promulgate rules and regulations which control the participation of all members of its association and decline to interfere in the internal operations. Because in this case we have found that there is no subject matter jurisdiction with the trial court, we dismiss this appeal for lack of subject matter jurisdiction, and further hold that the trial court lacked jurisdiction to issue a decision in the case below. Where the trial court does not have jurisdiction to render a judgment, the proper practice is for the reviewing court to set the judgment aside and dismiss the cause. Dallas County Appraisal Dist., 887 S.W.2d at 468.

Insofar as the trial court lacked subject matter jurisdiction, we vacate the trial court’s dismissal order and dismiss the case for want of jurisdiction and do not reach Appellant’s issue on appeal. Tex. R.App. P. 43.2(e). Le Clair v. Wood, No. 10-04-00232-CV, 2005 WL 1303187, at *2 (Tex.App.-Waco June 1, 2005, no pet. h.).


text:
    UNIVERSITY OF TEXAS AT EL PASO and the University of Texas System, Appellants, v. Gabriel MORENO, Appellee.
    No. 08-05-00076-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2005.

      Bridget L. McKinley, Asst. Atty. Gen., Austin, for Appellants.
    Roland Monteros, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and ABLES, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

In this accelerated interlocutory appeal, the University of Texas at El Paso and the University of Texas System (“UTEP/UTS”), appeal from the trial court’s order denying UTEP/UTS’s Plea to the Jurisdiction and Motion to Dismiss. UTEP/UTS appeal raising one issue. For the reasons stated, we reverse the judgment of the trial court and render judgment in favor of Appellants.

I. FACTUAL AND PROCEDURAL HISTORY

At issue is whether the Texas Tort Claims Act waives immunity for the personal injuries which were suffered by Ap-pellee after a football game held in the University of Texas at El Paso (“UTEP”) football stadium which is also known as the Sun Bowl. In November of 2000, Appellee attended a UTEP football game. The UTEP team was victorious. Immediately after the game, attendees, including Appel-lee, streamed onto the football field. Ap-pellee proceeded to hang from the goal post. While Appellee was hanging from the goal post, unknown persons began to shake the goal post, tearing it down. Ap-pellee was allegedly injured as a result of the incident and brought suit. UTEP/ UTS filed special exceptions which were granted. Appellee filed an amended petition under the Texas Tort Claims Act alleging that the goal post in question constituted a premises defect liability based upon a failure to erect barriers to control the crowd and gross negligence. UTEP/ UTS filed their Plea to the Jurisdiction and Motion to Dismiss. After a hearing, the trial court denied the motion. This appeal follows. Finding no waiver of immunity, we reverse the trial court’s denial of the plea to the jurisdiction and render accordingly.

II. GOVERNMENTAL IMMUNITY FROM SUIT

In the sole issue presented for review, Appellants challenge the trial court’s order denying the plea to the jurisdiction. They contend that Appellee’s claims fall outside the waivers of liability established by the Texas Tort Claims Act for the reasons that the allegations are “non-use” or “failure to act” claims, do not involve the use or misuse of tangible personal property, do not allege a premises defect, are protected as discretionary decisions of a governmental entity, or are injuries related to acts or omissions arising out of civil disobedience, riot, insurrection, or rebellion for which immunity is preserved.

A.Plea to the Jurisdiction

The lack of subject-matter jurisdiction is properly raised by a plea to the jurisdiction. Texas Department of Tramp, v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). In the absence of the state’s consent to suit, a trial court lacks subject matter jurisdiction. Id. The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993); City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism’d w.o.j.). In the context of suit against a governmental unit, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Jones, 8 S.W.3d at 638; Sullivan, 33 S.W.3d at 6.

B. Standard of Review

The question of subject-matter jurisdiction is a legal question which we review de novo. Sullivan, 33 S.W.3d at 6. Our task is to examine the pleadings, to take as true the facts pleaded, and to determine whether those facts support jurisdiction in the trial court. Texas Association of Business, 852 S.W.2d at 446. We construe the pleadings in favor of the pleader. Id. If necessary, we may review the entire record to determine if there is jurisdiction. Id. If the petition does not allege jurisdictional facts, the plaintiffs suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. Id.

C. The Tort Claims Act

As a governmental unit, UTEP/UTS is immune from both suit and liability unless the Tort Claims Act has waived that immunity. See Tex. Crv. PRác. & Rem.Code Ann. § 101.001(3)(A) (Vernon 2005). Section 101.021 of the Tort Claims Act has been interpreted as waiving sovereign immunity in three general areas: “use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.” Texas Department of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000) (quoting Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976)). Pursuant to Section 101.021, a governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 2005).

D.Condition or Use of Tangible Personal or Real Property and Negligent Implementation of Policies

Appellee relies upon broad, general allegations of negligence which, in essence, contend that UTEP/UTS are liable for the injuries suffered by Appellee as a result of the over-zealous conduct of out-of-control football fans knocking down a football goal post. Other than a contention that he is pursuing his claim under Section 101.021 and 101.0215, et seq., Appellee pleads a series of factual allegations related to UTEP/UTS’s failure to control the crowd with a few additional statements that the goal post was defective. Nothing in his petition alleges any facts to show how the goal post was defective. Despite the broad, general language contained in his petition, Appellee concedes in his deposition, excerpts of which are attached to Appellants’ Plea to the Jurisdiction, and in his brief, that he is suing for UTEP/UTS’s failure to control the crowd.

Appellee’s amended petition contends that UTEP/UTS was negligent in failing to install football goal posts that were free from defects and in failing to control the crowd through the use of fences or security devices. Appellee’s claims are in substance, claims that UTEP/UTS is liable for the injuries suffered by Appellee while he participated in what amounted to the out-of-control tortious conduct of individuals seeking to destroy university property.

Though Appellee has attempted to plead that the defective condition of the goal posts was a proximate cause of his injuries, and thus created a basis for a cause of action under Section 101.021 involving either the use or misuse of tangible property or as a premises defect, he does not succeed. A cause of action based upon the negligent use of real property or a cause of action involving a condition of real property does not exist separately from a cause of action for a premises defect. Laman v. Big Spring State Hosp., 970 S.W.2d 670, 671-72 (Tex.App.-Eastland 1998, pet. denied); University of Texas-Pan American v. Valdez, 869 S.W.2d 446, 450 (Tex.App.-Corpus Christi 1993, writ denied). The term “premises” has been defined as a building or part thereof with its grounds and appurtenances; and “defect” has been defined as a shortcoming, an imperfection, or the “want of something necessary for completeness.” Laman, 970 S.W.2d at 672; Billstrom v. Memorial Medical Center, 598 S.W.2d 642, 646 (Tex.Civ.App.-Corpus Christi 1980, no writ).

Appellee has not stated a cause of action for a premises defect because he has not alleged a defect, shortcoming, or physical imperfection of the property which was a proximate cause of his injuries. Despite his statements that the goal post was defective, his deposition testimony and pleadings establish that his only complaint regarding the goal posts is that they were torn down by the unruly crowd. Such does not amount to an allegation that satisfies the premises defect limitations on sovereign immunity under the Texas Tort Claims Act. See Laman, 970 S.W.2d at 672 (immunity not waived for cause of action based upon sexual assault of female psychiatric patient who had been temporarily placed in men’s hall and left in unlocked room because property does not cause injury if it does no more than furnish the condition that makes the injury possible). Nor has he alleged a condition or use of real property or tangible personal property within the meaning of Section 101.021(2). In order to state a claim for which immunity is waived, usage of the property itself must have actually caused the injury. Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex.2001); Texas Natural Resource Conservation Commission v. White, 46 S.W.3d 864, 869 (Tex.2001). The use of the property must be a “substantial factor in bringing about the injury.” San Antonio State Hospital v. Koehler, 981 S.W.2d 32, 35 (Tex.App.-San Antonio 1998, pet. denied). Incidental involvement of the property is insufficient. See Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); Sullivan, 33 S.W.3d at 8. Property does not cause injury if it does no more than furnish the condition that makes injury possible. Bossley, 968 S.W.2d at 343; Sullivan, 33 S.W.3d at 8.

At best, Appellee’s petition alleges that the property is merely involved. While the alleged injury suffered by Appellee occurred on the UTEP/UTS’s football field and goal post, the property itself did not cause Appellee’s injuries. Consequently, the trial court erred in mot granting UTEP/UTS’s plea to the jurisdiction with respect to these claims. See Scott v. Prairie View A & M University, 7 S.W.3d 717, 720 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (although sexual assault of participants in summer youth program by counselor occurred in a hotel room rented by university and at dormitory at university, the injury was not caused by condition or use of tangible personal or real property); Laman, 970 S.W.2d at 671-72.

E. Violation of Ministerial Duties

Appellee also complains that UTEP/UTS failed to control the crowd after the game in question. He argues that university personnel had a duty to control the crowd through the use of barriers, gates, link chains, and security devices and that the university’s failure to control the crowd was negligent, and states a cause of action under the waivers of the Tort Claims Act. In substance, Appellee is contending that UTEP/UTS breached its ministerial duty by failing to control the crowd at the game. We do not agree. Appellee’s pleadings read as a whole, do not allege a waiver of immunity under Section 101.021, therefore, this argument is without merit.

If the negligence causing an injury lies in the formulation of policy, i.e., the determination of the method for providing police protection, the government remains immune from liability. State v. Terrell, 588 S.W.2d 784, 788 (Tex.1979); Barefield v. City of Houston, 846 S.W.2d 399, 405 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The “method” of performing an act refers to the governmental decision or plan for providing police or fire protection. Terrell, 588 S.W.2d at 788; Barefield, 846 S.W.2d at 405. The government is not hable for any injury or death resulting from a government’s decision to use only minimal police efforts to control a riot or to control crime in a particular area of a city. Terrell, 588 S.W.2d at 788; Barefield, 846 S.W.2d at 405. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist. Terrell, 588 S.W.2d at 788; Barefield, 846 S.W.2d at 405.

F. Tortious Acts of Third Parties

Further, the injuries Appellee suffered were the result of criminal acts of third parties. The State is immune from liability for intentional torts committed by third parties. A governmental entity is exempt from liability for intentional torts “arising out of assault, battery, false imprisonment, or any other intentional tort....” Tex. Civ. PRAC. & Rem.Code Ann. § 101.057 (Vernon 2005). Appellee is clearly complaining of injuries that occurred as a result of the deliberate destructive behavior of the crowd which, we note, included Appellee as a participant.

Given the above, we sustain Appellants’ sole issue on appeal and render judgment in favor of Appellants. The order of the trial court denying the plea to the jurisdiction and dismissing suit is reversed and judgment is rendered in favor of Appellants.

ABLES, J., sitting by assignment.

      . Tex. Civ. Peac. & Rem.Code Ann. § 101.101 (Vernon 2005).