text:
    Wolfgang Hirczy DE MIÑO, Appellant, v. Edward P. SHERIDAN, Appellee.
    Nos. 01-03-00794-CV, 01-04-00099-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 12, 2004.

      Wolfgang Hirczy De Mino, Bellaire, TX, for Appellant.
    Daniel C. Perkins, Assistant Attorney General, Austin, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices JENNINGS and HIGLEY.
   OPINION

TERRY JENNINGS, Justice.

In these accelerated, interlocutory appeals, appellant, Wolfgang Hirczy de Miño, challenges the trial court’s orders denying de Miño’s application for a temporary injunction and granting a plea to the jurisdiction in favor of appellee, Edward Sheridan, Provost of the University of Houston (UH), on de Miño’s claims asserted against Sheridan in his official capacity.

De Miño, appearing pro se, presents six issues for our review. He contends that the trial court erred in granting Sheridan’s plea to the jurisdiction because section 111.33 of the Texas Education Code and the Uniform Declaratory Judgments Act (the DJA) waive UH’s governmental immunity, and thus Sheridan’s immunity, for causes of action authorized by law. Alternatively, he contends that no statutory waiver of immunity is required for an individual to bring a suit against State officials based on their unauthorized, illegal, or unconstitutional acts. As a further alternative, he contends that UH waived its governmental immunity, and that of Sheridan, by its conduct. De Miño also contends that the trial court erred in granting Sheridan’s plea to the jurisdiction and in denying de Miño’s claims for equitable relief because he had adequately pleaded facts sufficient to support his claims for violations of his rights under the Texas Constitution. He further contends that the trial court erred in dismissing his claims without affording him an opportunity to amend his pleadings.

Sheridan contests our jurisdiction to consider de Miño’s interlocutory appeal of the trial court’s order granting the plea to the jurisdiction on the ground that Sheridan is not a “governmental unit,” as that term is defined by the Civil Practice and Remedies Code. We conclude that we have jurisdiction over de Miño’s interlocutory appeal, and we affirm the trial court’s orders.

Factual and Procedural Background

In the fall of 2001, Sheridan refused to approve the renewal of de Miño’s lecturing contract with UH after it had been approved for renewal by W. Andrew Achenbaum, the Dean of UH’s College of Liberal Arts and Social Sciences. After de Miño filed a wrongful termination suit against UH and Achenbaum, asserting federal civil rights claims as well as a claim for an alleged breach of an employment agreement, a federal district court ordered UH to employ de Miño for the Spring 2002 semester. However, on UH’s motion for summary judgment, the federal court subsequently dismissed de Miño’s claims.

De Miño filed the instant suit in January 2003 against Sheridan for defamation and “retaliation.” In his original petition, de Miño asserted his defamation claim against Sheridan “in [Sheridan’s] individual capacity for wrongful conduct that falls outside the scope of his employment” as Provost for UH. De Miño based his defamation claim on statements made by Sheridan in a March 2002 affidavit submitted in the previous federal lawsuit. In the affidavit, Sheridan explained that his decision not to renew de Miño’s contract had been based on information that Sheridan had received from other UH administrators that de Miño had been accused of sexual harassment by one of his female students and had admitted to having had an affair with the student making the allegation of harassment. De Miño based his retaliation claim on his allegation that, in making the allegedly defamatory statements contained in the March 2002 affidavit, Sheridan had “retaliated against [de Miño] by impugning his integrity and by knowingly making false statements of fact calculated to ruin [de Miño’s] reputation.” De Miño accused Sheridan of making the statements in the affidavit “to teach [de Miño], and all others who oppose Sheridan’s autocratic leadership of [UH] and stand up for their rights, a lesson by making an example of [de Miño]” for de Miño’s having filed a lawsuit against UH.

In his “First Supplemental Petition,” de Miño expanded his pleadings to “assert all causes of actions [sic] against [Sheridan] in his official capacity” as UH’s Provost. In a “Second Supplemental Petition,” de Miño raised additional claims against Sheridan for violation of de Miño’s rights to “free speech” and “redress of grievances” under the Texas Constitution.

De Miño then filed a “Third Supplemental Petition” in which he “clarifie[d]” that he was not asserting any tort claims against Sheridan in Sheridan’s official capacity. De Miño also raised (1) a “takings” claim, (2) a claim that Sheridan had violated de Miño’s “constitutional liberty interest in his professional reputation,” and (3) a claim for relief in the form of a declaration that, in making the allegedly defamatory statements, Sheridan had violated de Miño’s constitutional rights.

Additionally, de Miño filed an application seeking a temporary injunction to prevent Sheridan from repeating or republishing the allegedly defamatory statements and to order Sheridan to provide de Miño with access to UH’s internet website so as to afford de Miño “an opportunity to post documentary evidence pertaining to the dispute between [de Miño] and [UH]” and “controvert [UH’s] allegations concerning him.”

Sheridan filed a plea to the jurisdiction, based on governmental immunity, seeking to dismiss de Miño’s claims raised against Sheridan in his official capacity. Sheridan also filed a response to de Miño’s application for a temporary injunction, in which Sheridan argued that the application should be denied because de Miño had not demonstrated either a probable right of recovery or the likelihood of probable injury pending trial. By separate orders, the trial court granted Sheridan’s plea to the jurisdiction as to all claims asserted against him in his official capacity and denied de Miño’s application for a temporary injunction.

Appellate Jurisdiction

By supplemental letter brief filed with this Court before the submission of this case, Sheridan contested our jurisdiction to consider de Miño’s interlocutory appeal of the trial court’s order granting the plea to the jurisdiction. An appeal may be taken from an interlocutory order that grants or denies a plea to the jurisdiction filed by “a governmental unit” such as UH. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004). Sheridan argues that, because the trial court granted a plea to the jurisdiction in favor of Sheridan, and not in favor of a “governmental unit,” de Miño is not entitled to pursue an interlocutory appeal from the trial court’s ruling.

It is a well-established and generally accepted principle of law that a suit against a government employee in his official capacity is, in all respects, a suit against the governmental unit. See, e.g., Terrell ex rel. Estate of Terrell v. Sisk, 111 S.W.3d 274, 280 (Tex.App.-Texarkana 2003, no pet.); Tex. Dep’t of Health v. Rocha, 102 S.W.3d 348, 353 (Tex.App.-Corpus Christi 2003, no pet.); Denson v. T.D.C.J.-I.D., 63 S.W.3d 454, 460 (Tex.App.-Tyler 1999, pet. denied); Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.). Here, the trial court granted Sheridan’s plea to the jurisdiction only as to claims asserted against Sheridan in his official capacity as an employee of UH, a governmental unit. Thus, the trial court’s ruling was, in effect, the equivalent of a ruling granting a plea to the jurisdiction in favor of UH.

Accordingly, we hold that we have jurisdiction over de Miño’s interlocutory appeal, and we address the merits of de Miño’s arguments.

Plea to the Jurisdiction

In his first, second, and third issues, de Miño argues that the trial court erred in granting Sheridan’s plea to the jurisdiction because (1) both section 111.33 of the Texas Education Code and the DJA waive UH’s governmental immunity, and thus Sheridan’s immunity, for causes of action authorized by law; (2) no statutory waiver of immunity is required for an individual to bring a suit against State officials based on their unauthorized, illegal, or unconstitutional acts; and (3) UH waived its governmental immunity, and that of Sheridan, by its conduct. In his fifth issue, de Miño argues that the trial court erred in granting Sheridan’s plea to the jurisdiction because de Miño adequately pleaded facts sufficient to support his claims for violations of his rights under the Texas Constitution.

As a general rule, the State of Texas and its governmental units are immune from suits for money damages unless the legislature has expressly consented to the suit. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.2001). UH is a governmental unit generally immune from tort liability, except when the legislature has specifically waived that immunity. Tex. Educ.Code Ann. §§ 111.01-.02 (Vernon 2002 & Supp.2004); Tex. Civ. Prac. & Rem.Code Ann. § 101.001(3)(D); Freedman v. Univ. of Houston, 110 S.W.3d 504, 506 n. 5 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Moreover, a suit against government employees in their official capacities is, in all respects, a suit against the State; thus, employees sued in their official capacities, such as Sheridan here, are shielded by governmental immunity. See Hohman, 6 S.W.3d at 777.

A governmental unit may contest a trial court’s authority to determine the subject matter of the cause of action by filing a plea to the jurisdiction. See Reyes v. City of Houston, 4 S.W.3d 459, 461 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). In the absence of a waiver of governmental immunity, a court has no subject matter jurisdiction to entertain a suit against a governmental unit. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). When a trial court learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and refrain from rendering a judgment on the merits. Freedman, 110 S.W.3d at 507.

When reviewing a trial court’s ruling on a plea to the jurisdiction, we consider the facts alleged by the plaintiff and, to the extent relevant to the jurisdictional issues, any evidence submitted by the parties. Whitley, 104 S.W.3d at 542. We review a trial court’s disposition of a plea to the jurisdiction under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Reese v. City of Hunter’s Creek Vill., 95 S.W.3d 389, 391 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

Statutory Waiver of Immunity

In his first issue, de Miño argues that the “sue and be sued” language of section 111.33 of the Education Code constitutes a valid legislative waiver of UH’s and Sheridan’s immunity from suit on all causes of action authorized by law and, thus, the trial court erred in granting Sheridan’s plea to the jurisdiction. Section 111.33 reads as follows:

The board [of regents] has the power to sue and be sued in the name of the University of Houston. Venue shall be in either Harris County or Travis County. The University shall be impleaded by service of citation on the president or any of its vice presidents. Nothing in this section shall be construed as granting legislative consent for suits against the board, the University of Houston System, or its component institutions and entities except as authorized by law.

Tex. Educ.Code Ann. § 111.33 (Vernon 2002) (emphasis added).

In Freedman, we held that section 111.33 did not waive UH’s immunity from suit on claims for breach of contract. 110 S.W.3d at 506. De Miño argues that, because he has not asserted contractual claims against Sheridan, section 111.33 acts as a statutory waiver of Sheridan’s immunity. However, the language of section 111.33 broadly states that it does not waive UH’s immunity from any suit “except as authorized by law.” Tex. Educ. Code Ann. § 111.33. Thus, we hold that section 111.33 does not waive Sheridan’s immunity from suit.

De Miño also asserts, in his first issue, that the DJA “waives immunity to suit against a governmental official or entity when a litigant seeks a declaration of his rights, or alleged violation of his rights, by a governmental official or entity and also authorizes ancillary injunctive relief.”

The purpose of the DJA is “to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex. Civ. Prac. & Rem.Code Ann. § 37.002 (Vernon 1997). De Miño relies on section 37.006 of the DJA, which provides that “[w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” Id. § 37.006 (Vernon 1997).

A party can maintain a suit against a governmental unit to obtain an equitable remedy or to determine its legal rights without legislative permission. Fed. Sign v. Tex. So. Univ., 951 S.W.2d 401, 404 (Tex.1997). However, the DJA does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not confer jurisdiction on a court or change a suit’s underlying nature. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). The Texas Supreme Court has consistently held that private parties may not circumvent a governmental unit’s immunity from suit merely by characterizing a suit for damages as a declaratory judgment claim. Id. at 856 (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 842 (1958)). Moreover, a declaratory judgment action is not appropriate when a plaintiffs cause of action is mature and enforceable in a pending suit that involves the same parties and the same issues as alleged in the declaratory judgment action. Tex. A & M Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 425 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

Here, although de Miño stated in his pleadings that he was not asserting tort claims against Sheridan in Sheridan’s official capacity, de Miño sought to have the trial court render a “declaratory judgment” that Sheridan, in his official capacity, had made false and defamatory statements concerning de Miño’s relationship with a student. Because such a declaration would, in fact, constitute a ruling as a matter of law on the tort claims de Miño had asserted against Sheridan in his individual capacity, it is not within the proper scope of an action for declaratory relief. See Tex. Civ. Prac. & Rem.Code Ann. § 37.002; IT-Davy, 74 S.W.3d at 855-56; Luxemburg, 93 S.W.3d at 425. Rather, de Miño’s claim for declaratory relief merely recasts his defamation claims. Accordingly, we hold that the DJA does not waive Sheridan’s immunity from suit.

We overrule de Miño’s first issue.

Requirement of Statutory Waiver of Immunity

Alternatively, in his second issue, de Miño argues that the trial court erred in granting Sheridan’s plea to the jurisdiction because de Miño was not required to establish the existence of a statutory waiver of governmental immunity as he asserted a claim for declaratory relief and claims based on various provisions of the Texas Constitution seeking recovery of monetary damages and equitable relief for Sheridan’s alleged “unauthorized or illegal acts” in making the allegedly defamatory statements. Likewise, in his fifth issue, de Miño argues that the trial court’s decision to grant Sheridan’s plea to the jurisdiction was erroneous because de Miño “adequately pleaded facts supporting claims of [Texas] constitutional violations.”

Claim for Declaratory Relief

The Texas Supreme Court has held that private parties may seek declaratory relief against government officials who allegedly act without legal or statutory authority. IT-Davy, 74 S.W.3d at 855; see Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex.1994) (suit challenging state officials’ construction of compulsory school-attendance law). Such suits are not considered to be “suits against the State” because they seek to compel government officials to act within their official capacity and do not attempt to subject the governmental unit to liability. IT-Davy, 74 S.W.3d at 855. Although certain claims for declaratory relief asserted against government officials may not implicate the governmental immunity doctrine, here, as we have held, de Miño’s declaratory claim does not fall within the scope of the DJA and was properly dismissed by the trial court.

“Takings” Claim

With regard to his constitutional claims, de Miño first argues that the trial court improperly dismissed his claim against Sheridan in his official capacity because no statutory waiver of immunity was necessary to permit de Miño to pursue his claim for adequate compensation under the “takings” clause of the Texas Constitution. See Tex. Const, art. I, § 17. The Texas Constitution provides, in pertinent part, as follows:

No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money....

Id. Governmental immunity does not shield governmental units from claims for compensation under the “takings” clause. Little-Tex, 39 S.W.3d at 598.

Here, de Miño argues that, through Sheridan’s allegedly defamatory statements, de Miño was deprived of employment in the academic community. However, de Miño directs us to no authority supporting his contention that his personal interest in employment at UH or elsewhere constitutes a “property” right for purposes of the “takings” clause. See Bates v. Tex. State Tech. Coll., 983 S.W.2d 821, 826 n. 8 (Tex.App.-Waco 1998, pet. denied) (noting that “property” refers to real property and not to interest in continued employment). Moreover, de Miño has not alleged, nor does the record indicate, that his personal interest in employment was or could have been “taken, damaged or destroyed for or applied to public use.” Tex. Const, art. I, § 17 (emphasis added).

Due Course of Law Claim,

De Miño also argues that the trial court erred in granting the plea to the jurisdiction on his claims “alleging a deprivation of his liberty interest” in his professional reputation because, under the “due course of law” provision of the Texas Constitution, he did not need to establish a waiver of governmental immunity. The due course of law guarantee of the Texas Constitution provides as follows:

No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.

Tex. Const. art. I, § 19. Texas courts have traditionally followed contemporary federal due process interpretations of procedural due process issues. Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995) (holding that medical student had constitutionally protected liberty interest in graduate education); see U.S. Const, amend. XIV. The Texas Supreme Court has held that, “where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of due process must be satisfied.” Id. at 930 (citing Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 736, 42 L.Ed.2d 725 (1975)).

In his pleadings, de Miño asserted a cause of action for deprivation of his “constitutional liberty interest in his professional reputation and standing in the community” under Article I, section 19. However, all of de Miño’s claims are based on his allegation that Sheridan defamed him in retaliation for de Miño’s pursuit of a federal lawsuit against UH. De Miño did not seek, as a remedy for Sheridan’s allegedly defamatory statements, due process in the form of either an administrative hearing or reinstatement to his lecturing position. Nor is de Miño entitled to recover monetary damages under his “due course of law” claim. See Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 400-01 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

As the United States Supreme Court has observed, “The words ‘liberty’ and ‘property’ as used in the Fourteenth Amendment do not ... single out reputation ... for special protection over and above other interests that may be protected by state law.” Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). Reputation alone, apart from some more tangible interests such as employment, does not constitute either “liberty” or “property” by itself sufficient to invoke protections of procedural due process. Id. 424 U.S. at 701, 96 S.Ct. at 1161.

Based on the record presented, we find nothing in de Miño’s pleadings that alters the nature of his claims from anything other than ordinary defamation claims.

“Open Courts” Claim

De Miño also argues that he is not required to plead a statutory waiver of immunity because the “open courts” provision of the Texas Constitution guarantees his right to pursue a remedy for Sheridan’s alleged wrongful conduct. The Texas Constitution provides that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation shall have a remedy by due course of law.” Tex. Const. art. I, § 13.

The Texas Supreme Court has held that the “open courts” provision “applies only to statutory restrictions of a cognizable common law cause of action.” Fed. Sign, 951 S.W.2d at 410 (emphasis added) (quoting Peeler v. Hughes & Luce, 909 S.W.2d 494, 499 (Tex.1995)). A court’s ruling that merely upholds established sovereign immunity law does not violate the “open courts” provision of the Texas Constitution because a citizen does not have a “cognizable common law cause of action” against the sovereign. See Fed. Sign, 951 S.W.2d at 410. Here, de Miño does not direct this Court to any legislative act that abridges a cognizable common law claim; thus, his “open courts” challenge is without merit.

“Freedom of Speech” and “Redress of Grievances” Claims

Finally, de Miño argues that the trial court’s grant of Sheridan’s plea to the jurisdiction was improper because de Miño was not required to prove a waiver of immunity to proceed on his claim that, by making the allegedly defamatory statements, Sheridan had retaliated against de Miño’s constitutional right of “freedom of speech.” See Tex. Const. art. I, § 8. De Miño also argues that he is entitled to pursue a claim for “redress of grievances.” See Tex. Const. art. I, § 27. Section 8 of the Texas Constitution reads, in part, as follows:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse- of that privilege; and no law shall ever be passed curtailing the liberty of speech of the press.

Tex. Const. art. I, § 8. Section 27, also known as the “free assembly” provision, reads as follows:

The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.

Tex. Const. art. I, § 27.

The Texas Supreme Court has held that “there is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution.” City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex.1995). De Miño argues that, because he sought equitable relief as an alternative to monetary damages, he may pursue a private cause of action against Sheridan, in his official capacity, under the “free speech” and “right of redress” provisions of the Texas Constitution. The equitable relief requested in de Miño’s pleadings consisted of a request that Sheridan, in his official capacity, be enjoined from repeating and be ordered to retract the allegedly defamatory statements.

However, de Miño asserted his constitutional claims against Sheridan in Sheridan’s official capacity, not his individual capacity. An ultra vires suit, based on allegedly unconstitutional actions by an employee or official of a governmental unit, may not be maintained against an official in his official capacity; such a suit may only be brought against an official in his individual capacity. See Nueces County v. Ferguson, 97 S.W.3d 205, 219 n. 18 (Tex.App.-Corpus Christi 2002, no pet.); Dillard v. Austin Indep. Sch. Dist., 806 S.W.2d 589, 597-98 (Tex.App.-Austin 1991, writ denied); Bagg v. Univ. of Tex. Med. Branch at Galveston, 726 S.W.2d 582, 584-85 (Tex.App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.). Nor may a plaintiff seek equitable relief in an attempt to control an official acting within the scope of the official’s legal authority. King v. Tex. Dep’t of Human Servs., 28 S.W.3d 27, 33 (Tex.App.-Austin 2000, no pet.). Thus, de Miño’s claims asserting causes of action under the free speech and redress of grievances provisions of the Texas Constitution are without merit.

As noted above, generally, the State, its governmental units, and its governmental employees sued in their official capacities are immune from suit unless the legislature has expressly consented to the suit. Gen. Servs. Comm’n., 39 S.W.3d at 593; Hohman, 6 S.W.3d at 777. Here, we hold that none of the declaratory or constitutional claims asserted by de Miño relieved him of the requirement of establishing the existence of a statutory waiver of UH’s governmental immunity to bring his suit.

Accordingly, we overrule de Miño’s second and fifth issues.

Waiver by Conduct

In his third issue, de Miño argues, alternatively, that the trial court erred in granting Sheridan’s plea to the jurisdiction because Sheridan’s official immunity, if any, was waived by the conduct of UH, the Texas Attorney General’s Office, and Sheridan himself in the trial court below. Specifically, de Miño asserts that, by accepting legal representation from the Texas Attorney General’s Office and by filing a counterclaim for attorney’s fees, Sheridan waived his immunity.

Here, given the nature of de Miño’s claims asserted against Sheridan as Provost of UH, the State was required to indemnify and the Attorney General’s Office was required to defend Sheridan. See Tex. Civ. Prac. & Rem.Code Ann. § 104.001 (Vernon Supp.2004) (“In a cause of action based on conduct described in [this chapter], the state shall indemnify ... an employee ... or any other officer of a state agency, institution, or department .... ”); see id. § 104.004(a) (Vernon 1997) (“The attorney general shall defend a public servant ... in a cause of action covered by this chapter.”).

It is evident that the purpose of Chapter 104 is not to waive immunity of government employees but to provide for their defense and indemnification, and we do not construe it as a statutory waiver of immunity. See Montana v. Patterson, 894 S.W.2d 812, 815 (Tex.App.-Tyler 1994, no writ). Accordingly, we hold that, by appearing as counsel for Sheridan in this case, the Attorney General’s Office did not waive Sheridan’s immunity from suit with regard to de Miño’s claims asserted against Sheridan in his official capacity.

De Miño also argues that UH and the Attorney General’s Office appeared on Sheridan’s behalf and, consequently, waived their governmental immunity. However, the record indicates that the only parties to the proceedings in the trial court were de Miño and Sheridan. Thus, we hold that de Miño’s contention that UH and the Attorney General’s Office appeared as parties is without merit.

De Miño further argues that Sheridan pursued a counterclaim against de Miño for attorney’s fees and that, by doing so, Sheridan waived his immunity by invoking the jurisdiction of the trial court. See Reata Construction Corp. v. City of Dallas, 2004 WL 726906, at *3 (holding that, by filing suit for damages, “a governmental entity waives immunity from suit for any claim that is incident to, connected with, arises out of, or is germane to the suit or controversy brought by the State,” including counterclaims). The record indicates that Sheridan did not file a separate pleading designated as a “counterclaim” and did not set forth any allegations or elements of a cause of action against de Miño. See Tex.R. Crv. P. 97. However, in his original answer, Sheridan prayed generally for the trial court to award him “costs of court, attorney’s fees, and such other relief as the Court deems appropriate.”

To address de Miño’s argument that Sheridan waived his immunity by invoking the trial court’s jurisdiction, we must first determine whether Sheridan’s general prayer .for relief constituted a counterclaim. As one court has observed:

The question of whether an answer sets up a counterclaim or is merely defensive must be determined by the facts alleged, and not by the name given the plea or by the particular form of the prayer for relief. A test for making the determination is to inquire whether the defendant could have maintained a suit to enforce the claim before suit was brought by the plaintiff. If the defendant could have maintained such an independent suit, the claim will be regarded as a setoff or counterclaim. If the suit could not have been maintained, it is a defensive plea.

Flukinger v. Straughan, 795 S.W.2d 779, 787 (Tex.App.-Houston [14th Dist.] 1990, writ denied).

Here, it is apparent that Sheridan’s general prayer for relief, including attorney’s fees, could not have been maintained in a separate lawsuit. In his prayer, Sheridan set forth no cause of action, legal theory, or facts that would entitle him to recover attorney’s fees. Therefore, we conclude that his general prayer for costs of court and attorney’s fees did not constitute a counterclaim, and we hold that Sheridan did not invoke the jurisdiction of the trial court by making this general prayer.

We hold that Sheridan, UH, and the Attorney General’s Office did not, by their conduct, waive Sheridan’s immunity, and we overrule de Miño’s third issue.

A trial court simply has no subject matter jurisdiction to entertain a suit against a governmental unit absent a waiver of governmental immunity, and, when it learns that it lacks jurisdiction to hear a cause, the trial court must dismiss the cause. Freedman, 110 S.W.3d at 507. Accordingly, we hold that the trial court did not err in granting Sheridan’s plea to the jurisdiction.

Temporary Injunction

In his fourth issue, de Miño challenges the trial court’s denial of his application for a temporary injunction. In his application, de Miño requested that the trial court order Sheridan not to repeat or republish the allegedly defamatory statements and to permit de Miño to present “documentary evidence pertaining to the dispute” between de Miño and UH on UH’s internet website.

An applicant for a temporary injunction must establish that he has a probable right to the relief sought and that he will suffer a probable injury in the interim, pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993); City of Friendswood v. Registered Nurse Care Home, 965 S.W.2d 705, 707 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The decision to grant or to deny a temporary injunction lies within the sound discretion of the trial court, and we will not reverse that decision absent an abuse of discretion. Walling, 863 S.W.2d at 58; CRC-Evans Pipeline Int’l, Inc. v. Myers, 927 S.W.2d 259, 262 (Tex.App.-Houston [1st Dist.] 1996, no writ). The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).

Here, de Miño’s argument that the trial court erred in denying his application for a temporary injunction is based on his argument that his claim for equitable relief was “not jurisdictionally barred.” Because, as we have held, the trial court properly granted Sheridan’s plea to the jurisdiction concerning all claims asserted by de Miño against Sheridan in Sheridan’s official capacity, we hold that de Miño has not demonstrated that he has a probable right of recovery on such claims. See Walling, 863 S.W.2d at 57. Therefore, we hold that the trial court did not abuse its discretion in denying de Miño’s application for a temporary injunction.

We overrule de Miño’s fourth issue.

Opportunity to Amend

In his sixth issue, de Miño contends that the trial court erred in granting Sheridan’s plea to the jurisdiction without affording de Miño an opportunity to cure any deficiencies in his pleadings.

After de Miño had filed his original petition, Sheridan filed special exceptions, which the trial court granted. De Miño subsequently filed three supplemental petitions. Although Sheridan filed special exceptions to de Miño’s “Third Supplemental Petition,” the trial court did not rule on these special exceptions. Instead, the trial court signed an order that set a deadline for de Miño to file “amended or supplemental pleadings as to jurisdictional issues.” That same order provided that de Miño would be permitted to file additional pleadings after the deadline upon “good cause shown, and with leave of this Court.”

Following the trial court’s order setting the pleading deadline, de Miño filed a “Motion for Reconsideration” of the trial court’s ruling, in which he sought to have the trial court “cancel” the deadline. However, the record indicates that de Miño did not obtain a ruling on his motion for reconsideration. Nor did de Miño seek leave of the trial court to amend or supplement his pleadings after the deadline had passed and before the trial court granted Sheridan’s plea to the jurisdiction. Thus, we conclude that de Miño has not preserved any error on this issue for our review. See Tex.R.App. P. 33.1(a).

Accordingly, we overrule de Miño’s sixth issue.

Conclusion

We affirm the orders of the trial court. All pending motions are denied.

      . Although de Miño states numerous issues in the "Issues Presented” section of his brief, he argues his issues under six major headings. Accordingly, we address his contentions as issues one through six.

      . Tex. Educ.Code Ann. § 111.33 (Vernon 2002).

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-.011 (Vernon 1997 & Supp.2004).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004).

      . De Miño was a UH political science lecturer.

      . See De Miño v. Achenbaum, No. 02-20772, 81 Fed.Appx. 819 (5th Cir. Nov. 21, 2003) (per curiam).

      . Although de Miño denied that he had sexually harassed the student, he admitted that he had met the student, who was married, while she was a student in his class and that "she became his girlfriend, and that they had plans to marry, buy a house, and have children together.”

      . See Tex. Const. art. I, §§ 8, 27.

      . Id. art. I, § 17.

      . Id. art. I, § 19.

      . See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.001-011.

      . See Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex.1993).

      . The record indicates that de Miño also filed a "Forth [sic] Supplemental Petition.” However, the trial court’s order granting the plea to the jurisdiction excludes the claims presented in that petition from the trial court’s ruling. Thus, we do not address those claims.

      .Moreover, to read section 51.014(a)(8) to apply as narrowly as is suggested by Sheridan would require parties in all similar circumstances to postpone a review of a trial court’s grant or denial of a plea to the jurisdiction concerning governmental employees until after the conclusion of the parties’ litigation of any claims raised against the governmental employee in that employee’s individual capacity. Such a narrow reading would potentially result in a waste of judicial resources if a reviewing court later determined that the trial court’s ruling on the plea was improper.

      . Throughout this opinion, when we refer to Sheridan’s "immunity,” we are referring to his immunity from suit in his official capacity, which is derivative of UH’s governmental immunity. See Univ. of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex.App.-Houston [1st Dist.] 1999, pet. dism’d w.o.j.).

      . We make no determination as to whether such claims would have been barred, under a theory of res judicata, by de Miño’s prior federal lawsuit.

      . We note that pro se litigants are held to the same standards as attorneys and must comply with all applicable and mandatory rules of pleading and procedure. See, e.g., Kindley v. State, 879 S.W.2d 261, 264 (Tex.App.-Houston [14th Dist.] 1994, no pet.).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 104.002(a)(3) (Vernon 1997) (“[T]he State is liable for indemnification under this chapter only if the damages are based on an act or omission by the person in the course of the person’s office, employment, or contractual service on behalf of the ... institution ... and if ... indemnification is in the interest of the state as determined by the attorney general or his designee.”).


source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Timothy M. HAILEY, Appellant, v. Cecelia E. HAILEY, Appellee.
    No. 01-02-00846-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 26, 2004.

      Leta J. Womack, Womack & Womack, Houston, TX, for Appellant.
    Jay M. Wright, Conroe, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Husband, Timothy Hailey, appeals from a judgment awarding Wife, Cecelia Hailey, the greater portion of their community estate in their divorce trial. In his first three issues, Husband contends that the trial court abused its discretion by not dividing the property in a just and right manner, by not manifesting a due regard for Husband’s rights, and by not awarding Husband one-half of the community’s economic contribution to Wife’s separate estate. In his fourth issue, Husband asserts that the trial court’s conclusion of law concerning the community estate’s claims for. reimbursement against his separate estate is erroneous. Husband complains of cumulative error in his fifth issue. We affirm.

Background

Husband and Wife were married on March 14,1998 and permanently separated less than two and a half years later, in October 2000. Before their final separation, the couple separated for six weeks during the summer of 1998. No children were born of or supported by the marriage.

Husband and Wife were both in their thirties when they married. At that time, Wife’s separate estate consisted primarily of the following: employee stock and an employee profit-sharing plan worth approximately $224,000, equity of approximately $38,000 in a house, and personal property. Husband owned a house with equity of approximately $30,000 at the time of marriage, as well as personal property. They chose to reside in Wife’s house and leased Husband’s house.

Both Husband and Wife worked during the marriage. But, although Husband worked as an independent contractor in the air-conditioner repair business, he reported a net income of only $700 during the first year of marriage, no income the second year, and a net loss the third year. Wife earned an average salary of $84,000 annually as a comptroller for the company for which she had worked for over 18 years.

Wife filed for divorce on June 13, 2001, and Husband countersued three months later. Neither petition asserted fault. The trial court’s judgment separated the community estate by ordering that (1) Wife and Husband each be separately responsible for the attorney’s fees they incurred during the divorce proceedings, and that (2) the remainder of the community property be divided as shown below.

Wife’s Award of Community Property

Wife received a value of $112,541 in assets that had been part of the community estate, as follows:

(1) Household Furnishings $ 3,975
(2) HISCO Employee Stock Ownership Plan [ESOP] $ 69,546
(3) Klein Bank account $ 600
(4) HISCO Profit-Sharing Plan $10,009
(5) 2001 Navigator $ -542
(6) Community estate’s economic contribution claim $ 28,953 against Wife’s separate estate (community funds used to enhance value of house that Wife owned before marriage)

The community-estate debt that was assigned to Wife totaled $38,902 for the following debts: Foley’s for $331, First USA Bank for $14,470, Bank Card Service for $11,529, and Capital One for $12,572. After subtracting the community debt assigned to Wife from the community assets awarded to Wife, Wife’s net award totaled $73,639.

Husband’s Award of Community Property

Husband received a value of $58,256 in assets that had been part of the community estate, as follows:

(1) Household furnishings $ 2,300
(2) State Farm life insurance policy $ 5,293
(3) Washington Mutual bank account $ 4,256
(4) Federal Credit Union bank account $ 108
(5) 1999 Dodge Ram truck $ 9,745
(6) Community estate reimbursement claims against $36,119 the separate estate of Husband
(7) State Farm Individual Retirement Account $ 435

Only two debts that belonged to the community estate, First USA Visa for $6,905 and Chase Platinum Visa for $3000, were awarded to Husband, for a total of $9,905. Thus, the total net award for Husband was $48,351.

The effect of the net distribution of the estate was approximately a 60/40 division of property in favor of Wife. In its conclusion of law number two, the trial court stated that the “division of the property of [Wife] and [Husband] effected by the final judgment is just and right, having due regard for the rights of each party irrespective of the characterization of any item of property as either community or separate.”

Division of Community Property

In his first issue, Husband contends that the trial court abused its discretion by failing to divide the community estate in a just and right manner and by awarding an approximate 60/40 division of the community estate to Wife after having previously stated that it would divide the property “close to a 50/50 split.” In issue two, Husband complains that the trial court awarded “essentially all” of the community assets to Wife and abused its discretion by failing to manifest a due regard for his rights.

In a decree of divorce, the court shall order a division of the community estate in a manner that the court deems just and right, having due regard for the rights of each party. Tex. Fam.Code Ann. § 7.001 (Vernon 2004); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex.App.-Houston [1st Dist.] 1995, writ denied). In effecting a just and right division of the community estate, section 7.001 of the Family Code vests the trial court with broad discretion that will not be reversed on appeal unless the complaining party shows that the trial court clearly abused its discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981); Rafferty, 903 S.W.2d at 377. The test of whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably, and without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985); Rafferty, 903 S.W.2d at 376. It is the duty of the appellate court to presume that the trial court properly exercised its discretion in dividing the marital estate. Murff, 615 S.W.2d at 699.

A trial court may order an unequal division of the community property when a reasonable basis exists for granting that relief. Robles v. Robles, 965 S.W.2d 605, 621 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). The division of property must not be so disproportionate as to be inequitable, and the circumstances must justify awarding more than one-half to one party. Pott v. Pott, 689 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1985, no writ). Relevant factors in the division of the marital estate include (1) the education of the parties, (2) their relative earning capacities, (3) the size of their separate estates, and (4) the nature of the community property. Murff, 615 S.W.2d at 699; Alsenz v. Alsenz, 101 S.W.3d 648, 655 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

Education of the Parties

Husband has more formal education than Wife. He received a degree in agronomy (turf-grass science) from Texas A & M University in 1987 and education in air-conditioning repair as a 1997 graduate from Houston Community College. Wife completed only one year of college following high school. Because Husband’s formal education empowers him to obtain gainful employment at wages exceeding Wife’s, this factor favors Wife’s receiving a greater share of the community property.

Relative Earning Capacity

Although Wife earned more income than Husband at an average wage of $84,000 annually, the record suggests that Husband’s earnings could have exceeded Wife’s. Husband could have earned much as $125,000 in the air-conditioning-repair business alone, but Husband also had his own landscaping business and worked part-time in the car-wash business. Wife’s salary appears to have peaked, based on her employment for the past 18 years for the same company after working her way up from receptionist to comptroller. Moreover, Wife testified that she may-need to seek a lower position at the company and take a pay cut to reduce work-related stress. Because Husband has the earning capacity to exceed Wife’s wages, this factor favors Wife’s receiving a greater share of the community estate.

Size of Separate Estates

Husband and Wife both owned houses prior to marriage, and Wife had slightly more equity in her house when they married. Husband also had more credit-card debt than wife, at $12,600. Because of Wife’s employee stock and profit-sharing plan, however, her separate estate greatly outweighs Husband’s. Thus, although Husband was capable of earning more money than Wife due to his formal education, Wife had developed a considerably larger separate estate than Husband before marriage. Because Wife’s separate estate is more valuable than Husband’s, this factor favors Husband’s receiving a greater share of the community property.

Nature of Community Property

As reflected in the trial court’s finding of fact number four, the community estate consists primarily of the community interest in Wife’s employee stock-ownership plan, valued at $69,546, and the profit-sharing plan valued at $10,009, for a total of $79,555. In addition, the community estate had a total value of $65,072 for the community estate’s $28,953 claim for economic contribution for community funds spent to enhance the value of Wife’s house, and the community estate’s claim for reimbursement for $36,119 from the separate estate of Husband. The remaining community assets included the 1999 Dodge Ram truck, with an equity valued at $6,745; the State Farm Life Insurance Policy, valued at $5,293; and the Washington Mutual Bank account, valued at $4,256.

Wife contends that she is entitled to a greater share of the community estate because she earned the vast majority of the income brought into the community estate. Husband contends that Wife interfered with his ability to work by imposing a curfew on him that required him to be home by 6:00 p.m. on weekdays and 2:00 p.m. on weekends. Husband also contends that, although his tax records show net losses, he routinely deposited money into the community estate and gave the community estate the benefit of depreciation for some of his property in joint tax returns. Wife denied placing a curfew on Husband and claimed that he was voluntarily underemployed. We conclude that the trial court did not abuse its discretion by impliedly finding that this factor favors Wife’s receiving a greater share of the community property.

Conclusion

Application of the Murff factors supports the trial comb’s having properly exercised its discretion to award Wife a greater share of the community estate in dividing the property in a “just and right” manner. See Murff, 615 S.W.2d at 699. The record shows that Husband and Wife are in their thirties, that they are physically and mentally able, and that each is capable of earning over $80,000 annually. Although highly educated and capable of earning over $100,000 annually, Husband reported less than $700 in income during the marriage. The couple lived in Wife’s house and were supported by Wife’s income. Wife’s income paid for the benefits to Wife’s and Husband’s separate estates. Under the circumstances, the division of property was not so disproportionate as to be inequitable, and the circumstances justify awarding more than half of the community estate to Wife. See Patt, 689 S.W.2d at 507.

In conducting a bench trial of a divorce case, the trial court has the opportunity to observe the parties, determine their credibility, and evaluate their needs and potential, both social and economic. Murff, 615 S.W.2d at 700. Similarly, as the trier of fact, the trial court is empowered to apply its understanding and experience; mathematical precision in dividing property in a divorce is usually not possible. Id. Given the wide latitude and discretion vested in the trial court, which we may disturb only in a case of clear abuse, id., we cannot conclude, under the circumstances presented here, that the trial court abused its discretion by awarding Wife a greater share of the community estate.

“Close to a 50/50 Split”

In support of his first issue, Husband further contends that, because the trial court stated in its closing remarks that, “it works out that it is close to a 50/50 split and I’m going to leave the parties as they sit today,” the trial court erred by instead dividing the property closer to a 60/40 division. The trial court’s remarks, however, are not reflected in its findings of fact, conclusions of law, or judgment. Accordingly, they are not dispositive. See In re W.E.R., 669 S.W.2d 716, 716 (Tex.1984). Rather, the trial court’s conclusions of law and judgment properly refer only to the just and right division of the property mandated by section 7.001 of the Family Code. See Tex. FaM.Code Ann. § 7.001; Rafferty, 903 S.W.2d at 376. Accordingly, Husband’s contention does not conflict with our conclusion that the trial court did not abuse its discretion by awarding Wife a greater share of the community estate in effecting its just and right distribution of the community estate.

We overrule Husband’s issue one.

“Essentially All” Community Assets to Wife

In his second issue, Husband complains that Wife was awarded “essentially all” of the community assets. Husband ignores that the community estate’s considerable debt was also assigned to Wife. Although she received most of the community assets, Wife also received most of the community debt. Accordingly, we reject Husband’s contention that Wife received “essentially all” of the community assets and affirm our conclusion that the trial court did not abuse its discretion in its just and right distribution of the community estate.

We overrule Husband’s issue two.

Reimbursement Award Against Husband’s Estate

The reimbursement award stems from a claim by the community estate for compensation for community funds spent during the marriage on the house that Husband owned before the marriage. In conclusions of law number four and five, the trial court assessed a value of $36,119 for the reimbursement claim made by the community estate. The community estate’s entire reimbursement award, valued at $36,119, was awarded to Husband as his sole property.

Husband challenges the assessed value of $36,119 for the reimbursement claim in issue four. Specifically, Husband claims that the record does not support the trial court’s conclusions of law regarding the community estate’s claims for reimbursement against his separate estate, and contends that the reimbursement award should be set aside.

The trial court entered findings of fact and conclusions of law in response to Husband’s request. Husband did not offer proposed findings, and did not propose additional or amended findings after the trial court adopted the findings proposed by Wife. See Tex.R. Civ. P. 298, 299. In an appeal from a bench trial, we review a trial court’s conclusions of law as legal questions, de novo, and will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belgium v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.). An appellant may not challenge a trial court’s conclusions of law for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belgium, 83 S.W.3d at 794. If we determine that a conclusion of law is erroneous, but that the trial court nevertheless rendered the proper judgment, the error does not require reversal. Id.

When, as here, the appellate record contains a complete reporter’s record, we review the trial court’s findings of fact under the same standards for legal and factual sufficiency that govern review of jury findings. See Min v. Avila, 991 S.W.2d 495, 500 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The trial court acts as factfinder and is the sole judge of the credibility of witnesses in a bench trial. See Murff, 615 S.W.2d at 700; Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Accordingly, the trial court may consider all the facts and circumstances in connection with the testimony of each witness and accept or reject all or part of that testimony. An appellate court may not substitute its judgment for the trial court’s assessment of witnesses’ testimony in a bench trial. See In re W.E.R., 669 S.W.2d at 717.

When the trial court’s findings of fact address a ground of recovery or defense, but inadvertently omit an essential element, we may infer the omitted element, pursuant to rule 299 of the Rules of Civil Procedure, because the judgment is presumed valid. See Tex.R. Civ. P. 299; Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251-53 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); see also Vickery, 5 S.W.3d at 252 (noting that presumptive validity of judgment may apply even more strongly in bench trial). We emphasize, moreover, that the value of specific items of property is not an ultimate issue in the trial court’s property division and does not require specific fact findings by the trial court. Rafferty, 903 S.W.2d at 376.

Husband challenges the following two conclusions of law:

4. The community estate has claims for reimbursement against the separate estate of [Husband] in the amount of $36,119.
5. As part of a just and right division of the assets and liabilities of the marriage, [Husband] is awarded the community property claim against his separate property of $36,119.

Husband challenges the conclusions of law concerning the reimbursement claim on the following grounds: (1) Wife offered no evidence to support her claim for $1,500 in improvements to his house; (2) the total paid by the community towards his house was $20,423, rather than $24,119; (3) the trial court did not offset $26,000 in benefits to the community estate from rent of Husband’s house, and (4) the trial court did not offset benefits valued at $868 for depreciation of his house that was taken on the couple’s 1999 joint tax return. The trial court entered findings of fact and conclusions of law, but addressed these issues solely in its conclusions of law without entering separate findings.

In a decree of divorce, the court shall determine the rights of both spouses in a claim for reimbursement and shall apply equitable principles to (1) determine whether to recognize the claim after taking into account all the relative circumstances of the spouses; and (2) order a division of the claim for reimbursement, if appropriate, in a manner that the court considers just and right, having due regard for the rights of each party. Tex. Fam.Code Ann. § 7.007(b)(1), (2) (Vernon 2004). The trial court’s discretion in evaluating a claim for reimbursement is as broad as its discretion to effect a just and proper division of the community estate. Penick v. Penick, 783 S.W.2d 194, 198 (Tex.1988); Alsenz, 101 S.W.3d at 655.

A party claiming the right of reimbursement must plead and prove that the expenditures and improvements were made and that they are reimbursable. Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex.1982). The trial court must consider the facts and circumstances, and determine what is just, fair, and equitable. Penick, 783 S.W.2d at 197. The trial court is accorded great latitude in applying equitable principles to value a claim for reimbursement. Id. at 198.

Claims for reimbursement may be offset against each other if the court determines that-this is appropriate. Tex. Fam.Code Ann. § 3.408(c) (Vernon 2004). A trial court is required to consider offsetting benefits when a litigant requests that relief. Gutierrez v. Gutierrez, 791 S.W.2d 659, 663 (Tex.App.-San Antonio 1990, no writ).

Fact Findings Support a Reimbursement Claim for an Additional $3,480

On reviewing the record, we discern that finding of fact number nine supports a reimbursement claim to the community estate valued at $39,599, rather than the $36,119 that was awarded in conclusions of law numbers four and five. According to finding of fact number nine, the community disbursed $39,599 in community funds for Husband’s separate property, as follows: $19,248 for insurance, taxes and mortgage payments on Husband’s house, $1,500 for improvements to Husband’s house, $218 for supplies for Husband’s house, $1,028 for utilities for Husband’s house, $2,125 for repairs to Husband’s house, $12,600 for the separate, credit-card debt that Husband incurred before the marriage, and $2,880 for payments made on the State Farm life insurance policy that Husband owned before the marriage. These findings thus show that Husband owed the community estate $3,480 more than he was ordered to pay as reimbursement to the community estate.

Sufficiency Challenges to Findings of Fact

Husband contends that Wife offered no evidence to support her claim for $1,500 for improvements to his house, as shown in finding of fact number nine. The record reflects, however, that Wife’s “trial inventory and appraisement” was admitted into evidence and established that the community estate spent $1500 on improvements to Husband’s house. As well, Wife’s testimony referred to a new roof, paint and new flooring as improvements made to Husband’s house. Husband has not demonstrated on appeal why this evidence is insufficient to establish that $1,500 was spent on improvements to his house. We overrule Husband’s challenges to the sufficiency of the evidence concerning the $1,500 in expenditures for improvements to his house.

Husband further asserts that the total paid by the community estate towards his house was $20,423, rather than the $24,119 shown in the trial court’s finding of fact number nine. Husband suggests that the community estate is entitled to only $20,423 for the mortgage payments made on his house. Wife’s “trial inventory and appraisement,” however, corresponds to the trial court’s finding of fact number nine and thus supports that the community estate spent a total of $24,119 for Husband’s house for the following: $19,248 for insurance, taxes and mortgage payments; $1,500 for improvements; $218 for supplies; $1,028 for utilities, and $2,125 for repairs. We overrule Husband’s challenges to the sufficiency of the evidence concerning the $24,119 in expenditures by the community estate on his house.

Offset for Deduction on Tax Return

Husband complains that he did not receive the offsets to which he was entitled because the trial court did not allow him credit for $26,000 for the rental income that the community received from his house and credit for the $868 deduction for the depreciation of his house taken by the community on its 1999 joint tax return. The trial court’s findings of fact and conclusions of law do not specifically mention offsets, but do address reimbursements to the separate estates. Accordingly, we may infer omitted findings in support of the trial court’s judgment. See Tex.R. Civ. P. 299; Vickery, 5 S.W.3d at 251-53.

Husband claims that he was entitled to an offset for the $868 deduction for the depreciation to his house taken on the community’s 1999 joint tax return. The record shows that Husband admitted that he owed the Internal Revenue Service $1339 in taxes from his 1997 tax return, which resulted in a deduction in that amount from his 1998 tax return filed jointly with Wife. But even if Husband were entitled to an offset for the $868 deduction for the depreciation to his house on the 1999 joint tax return, it appears from the record that he received a benefit from the community estate for his 1997 tax return pertaining to his separate estate. The record thus supports the trial court’s failure to award Husband an offset for the depreciation of his house on the 1999 joint tax return.

Offset for Rents Received from, Lease of Husband’s House

The record reflects that Husband and Wife agreed that the total amount the community received in rent from the lease of Husband’s house was $26,000. Wife contends that the trial court disallowed the offset for the rental receipts from Husband’s house for two reasons. Wife first contends that, because the community estate received no rental payments from the lease of Husband’s house after October 2000, when the couple separated, the community estate never benefited from the separate property after that date. Wife also contends that Husband was not entitled to an offset for rental payments received before their final separation because Husband used the rental receipts of $855 a month to pay $699 a month for his truck note.

The record shows that Husband and Wife married on March 14, 1998, separated for six weeks during the summer of 1998, and finally separated in October 2000. When Husband and Wife married, Husband’s house was empty until it was repaired and was rented to a tenant in October 1999. Wife testified that she did not see any rental receipts after the couple separated in October 2000. Thus, according to Wife, only one year’s worth of rental receipts, valued at $855 a month for a total of $10,260, was actually placed into the community estate. Although Husband contended that he continued to make deposits into the community estate following the couple’s separation, the trial court, as factfinder and judge of the credibility of witnesses, could have determined that Wife was more credible than Husband. Based on the evidence, the trial court, as the factfinder, could reasonably have determined that Husband was entitled to receive only an offset of $10,260 for the rental income used to benefit the community estate.

Although Husband was entitled to an offset of $10,260, the trial court was within its discretion in failing to allow Husband a credit in this amount because Husband received the benefit of the increased value to his home in an equal or greater value to the offset to which he was entitled. During the time of marriage, Husband’s house increased in value between $10,000 and $20,000. The increased value to Husband’s house during the marriage was an asset that could have been included in the community assets subject to division by the trial court, but was not. See, e.g., Murff, 615 S.W.2d at 699 (stating that trial court may consider many factors in deciding the estates of the parties, including the size of their separate estates); Padon v. Padon, 670 S.W.2d 354, 359 (Tex.App.-San Antonio 1984, no writ) (holding that trial court may consider a spouse’s separate property when dividing the spouses’ estates); Wilkinson v. Wilkinson, No. 03-97-00611-CV, 1999 WL 314783 at *2 (Tex.App.-Austin May 20, 1999, no pet.) (not designated for publication) (stating that trial court may consider enhancement in value of a spouse’s separate real property when determining reimbursements). Because Husband’s house received an increased value in an equal or greater amount than $10,260 during the marriage, the trial court acted within its discretion by declining to offset the reimbursement claim of $10,260.

After considering all the facts and circumstances, the trial court could have determined that it was fair, just, and equitable to limit Husband’s offset to $10,260 from the rental income. The trial court could have further determined that, because Husband’s house increased in value between $10,000 and $20,000, the rental income received from the lease of the house approximately equaled the increase in value to the house, and, thus, Husband was not entitled to any offset from the reimbursement claim. See Penick, 783 S.W.2d at 197 (holding that trial court should consider facts and circumstances and determine what is just, faff, and equitable).

We overrule Husband’s fourth point of error.

Economic Contribution

The economic contribution award stems from a claim by the community estate to compensate it for the enhancement in value, derived from community funds, to the house that Wife owned before the marriage. In conclusion of law number three, the trial court assessed a value of $28,953 for the economic contribution to Wife’s house made by the community estate. The community estate’s entire economic contribution award, valued at $28,953, was awarded to Wife as her sole property.

In issue three, Husband makes two challenges to the economic contribution award. First, Husband asserts that the trial court abused its discretion by “failing to award [Husband] one-half of the community’s equitable contribution to [Wife’s] separate estate while taking that award into consideration in the calculation of the net award to each party and by intending an award close to 50/50 and favoring [Husband] and effecting a 60/40 award favoring [Wife].” Second, Husband contends that the trial court undervalued the economic contribution award.

Division of Economic Contribution Award in Divorce Decree

A marital estate that makes an economic contribution to property owned by another marital estate has a claim for economic contribution against the benefited estate. Tex. Fam.Code Ann. § 3.403(a) (Vernon Supp.2004). In a decree of divorce, the court shall determine the rights of both spouses in a claim for economic contribution as provided by Family Code Chapter 3, Sub-chapter E, in a manner that the court considers just and right, having due regard for the rights of each party. Tex. Fam.Code Ann. § 7.007(a) (Vernon Supp.2004). The court shall further order a division of a claim for economic contribution of the community marital estate to the separate marital estate of one of the spouses. Tex. Fam.Code Ann. § 7.007(a)(1). A spouse seeking economic contribution must bring forth sufficient evidence for the factfinder to determine the enhancement value to the benefited estate. Boyd v. Boyd, 131 S.W.3d 605, 613 (Tex.App.-Fort Worth 2004, no pet.).

Husband’s contention that he was due one-half of the economic contribution award ignores the statutory requirement that the award must be divided in a “just and right” distribution. Tex. Fam.Code Ann. § 7.007(a). Although Husband is correct in stating that Wife was awarded all of the economic contribution value from her separate estate, we nonetheless conclude, for two reasons, that a just and right distribution of the assets occurred under the circumstances here. First, as addressed above, Husband was awarded all of the community-estate reimbursement claims against his separate estate, for a total of $36,119, an amount greater than the $28,953 granted to Wife for the economic contribution award. The record suggests that, rather than dividing the reimbursement claim and the economic contribution award between Husband and Wife, the trial court assigned the respective awards, which were similar in value, to Husband and Wife, respectively. Second, Husband received a just and right division of the marital estate, as discussed in issues one and two above.

We conclude that the trial court did not abuse its discretion under the circumstances here, which include the award of (1) all the economic contribution claim to Wife, (2) all the reimbursement claim to Husband, and (3) the division of the entire community estate in a just and right manner.

Amount of Economic Contribution Award

Husband also contends that the trial court abused its discretion by incorrectly assessing a value of $28,953, rather than $55,438, for the economic contribution claim. According to Family Code Chapter 3, Sub-chapter E, the amount of the claim based on economic contribution is equal to the product of (1) the equity in the benefited property on the date of divorce; multiplied by (2) a fraction in which: (A) the numerator is the economic contribution to the property owned by the benefited marital estate by the contributing marital estate; and (B) the denominator is an amount equal to the sum of (/) the economic contribution to the property owned by the benefited marital estate by the contributing marital estate; and (⅞) the contribution by the benefited estate to the equity in the property owned by the benefited estate. Tex. Fam.Code Ann. § 3.403(b) (Vernon 2004).

Husband and Wife recognize that the formula described in Section 3.403(b) of the Family Code is [Ax(B + C+D)/(B + C+D+E+F)l See id. They likewise agree to all of the values in the formula, with the exception of (1) the fair market value of Wife’s house on date of marriage and divorce and (2) the economic contribution in the form of improvements to Wife’s house. These disagreements result in the discrepancy between the assessed value of the economic contribution claim by Husband and Wife. Husband asserts that the economic contribution claim should be $55,438, as corn-pared to the trial court’s award of $28,954 based on Wife’s figures, which the trial court adopted.

1. Fair Market Value of Wife’s House

It is undisputed that Wife purchased her house in 1996, and thus before the marriage, for $160,097. The parties’ disagreement concerning the fair market value of Wife’s house at the time of marriage pertains to Wife’s contention that she made $15,000 in improvements to the house prior to marriage, elevating its value to $175,076. Wife testified that she spent $15,000 for the installation of marble tile and formal drapes in her house prior to marriage, thereby enhancing the value of the house by $15,000.

Similarly, Husband and Wife also disagree about the fair market value of Wife’s house at the time of divorce. Husband contends the house’s value at that time was $205,000, but Wife asserts that the value was $177,812. Husband’s asserted value comes from the assessed value of the house at $205,000 for taxation purposes by the Harris County Appraisal District (HCAD). Husband acknowledged, however, that in his sworn inventory he claimed that the house was worth only $193,600, that he only had a “rough idea” of the fair market value of the house, and that he did not know the fair market value of the house at the time of divorce. Wife testified that she researched her neighborhood to determine the selling price of comparable homes and believed that her home only had a fair market value of about $178,000. She further stated that she was challenging HCAD’s assessed value.

Based on the record before us, we cannot conclude that the trial court abused its discretion by determining that the fair market value of Wife’s house at the time of marriage was $175,076, and that its fair market value at the time of divorce was $177,812, as Wife contended.

2. Improvements to Wife’s House

Husband contends that $3,450 of community funds were spent on improvements that enhanced Wife’s house pursuant to the “(C)” portion of the Family-Code formula, but Wife asserts that no community funds were spent during the marriage for improvements to her house. According to Husband, improvements to Wife’s house during the marriage consisted of door refinishing, installing solar screens on windows, and installing a lawn sprinkler system. Although Husband testified that $3,450 in community funds were spent on improvements to Wife’s house, he also acknowledged that he did not know whether those funds were actually spent for improvements to Wife’s house. Moreover, Husband acknowledged that he did not know which repairs constituted improvements for purposes of his claim for economic contribution. These circumstances warranted the trial court’s impliedly determining that Husband did not bring forth sufficient evidence from which the trial court, as factfinder, could determine the enhancement value to Wife’s benefited estate allegedly derived from community funds. See Boyd, 131 S.W.3d at 613. This determination, in turn, further warranted the trial court’s determining that no community funds were spent on improvements to Wife’s house. We thus conclude that the trial court did not err by entering its conclusion of law number three by assessing a value of $28,953, as proposed by Wife, for the economic contribution made by the community estate on Wife’s house.

We overrule Husband’s issue three.

Cumulative Error

In his fifth point of error, Husband complains that the trial court committed cumulative error, requiring remand for new trial on the property division. Having found no error in Husband’s issues one through four, we conclude no cumulative error occurred.

We overrule Husband’s fifth point of error.

Conclusion

We affirm the judgment of the trial court.

      . Numbers have been rounded to the nearest dollar for clarity.

      . Husband contends that the correct value of the stocks that Wife received during the marriage is $82,058. Based on Wife's testimony, however, the record supports the trial court's finding of fact and exhibits. Accordingly, we defer to the value assessed in the trial court's findings of fact.

      . The trial court assessed the value of the couple’s vehicles based on the equity in the vehicle. The remaining outstanding debt due on the vehicle’s loan was assigned to the person who was awarded the vehicle. Wife’s outstanding vehicle loan amount was $36,017.

      . The remaining balance on Husband's vehicle’s loan was $13,980, and the debt was assigned to Husband.

      . Other factors, not pertinent to this case, can include the age, health and physical condition of the parties, fault in breaking up the marriage, the benefits the innocent spouse would have derived from continuing the marriage, and the probable need for future support. Smith v. Smith, 836 S.W.2d 688, 692-93 (Tex.App.-Houston [1st Dist.] 1992, no writ).

      . Wife’s equity in her house appears to be only $38,176. Finding of fact number six shows that Wife’s house was valued at $175,076 on the date of marriage, but finding of fact number 10e shows a principal debt of $136,900 on her house on the date of marriage. Husband’s equity appears to be approximately $30,000. Finding of fact number seven shows that Husband’s house and lot were valued at $57,528. Husband’s testimony in the record reflects that he owed $21,310 in mortgage debt at the time of marriage.

      . In finding of fact number six, the trial court found that Wife owned, as her separate property prior to marriage, 2492.45 shares of stock in her employer’s stock-ownership plan account. The record shows that the stocks fluctuated in value, but for the year ending October 31, 1998, the value of the stocks totaled $184,713. Additionally, finding of fact number six shows that Wife owned a profit-sharing plan, with a value of $39,493 as her separate property prior to marriage.

      . We have construed Husband's broadly phrased issue as arguably encompassing, in addition, a challenge to the trial court’s decision to require each party to pay the attorney’s fees that each incurred during the divorce proceedings. Accordingly, we note that the debt for Wife’s attorney’s fees was $16,933 according to the trial court’s finding of fact number eight, but that no findings of fact establish Husband's attorney’s fees. Before the close of the evidence, Husband had established only that his attorney’s fees amounted to $1,078. At the close of evidence, however, Husband's attorney was permitted to testify, over Wife's objections, that his attorney's fees were $21,935. As we explain further in this opinion, we may infer missing findings in support of the trial court’s rulings under the circumstances of this case. See Tex.R. Civ. P. 299; Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251-53 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Given the trial court’s implied finding that Husband incurred $21,935 in attorney’s fees and the discretion vested in the trial court to effect a just and right division, we cannot say that the trial court exceeded its statutory discretion by requiring that Husband and Wife each be responsible for attorney's fees that each incurred during the divorce proceedings.

      . We disagree with Wife that it would have been proper for the trial court to decline an offset on this basis because the record reflects that Husband’s truck was a community asset acquired during the marriage. The truck was included as one of the community assets divided by the court. Thus, even if rental income was used to pay for the truck, because the truck was community property, the community estate benefited from the rental payments. See Alsenz, 101 S.W.3d at 654 (noting that community property has been defined as " 'all property and pecuniary rights obtained by, or in the name of, either spouse after the marriage, by toil, talent, thrift, energy, industry, or other productive faculty, and all the rents, issues, profits, fruits, and revenues of separate property’ ”) (quoting Logan v. Logan, 112 S.W.2d 515, 525 (Tex.Civ.App.-Amarillo 1938, no writ)).

      . Wife’s testimony established that Husband’s house increased in value approximately $20,000 during the marriage, when community assets were expended to benefit the house. She said that the fair market value of Husband’s house on the date of marriage was $38,000, and that the fair market value of Husband's house at the time of divorce was $58,000. According to Husband, his house increased in value approximately $10,000 during the marriage. Husband did not testify directly concerning the fair market value of his house, but gave a general assessment that he believed that houses in his neighborhood were selling in the "low fifties” at the time of marriage and in the "sixties” at the time he divorced.

      . Husband’s economic contribution claim came from the following figures:
      (A) Total equity at date of divorce $ 96,124.99

        (The equity amount was based on the fair market value of the property on the date of divorce at $205,000 minus the principal amount of debt on date of divorce at $108,875)
      (B) Economic Contribution by Marital Estate (debt reduction) $ 28,024
      (C) Economic Contribution by Contributing Estate (debt refinancing) $ 0
      (D) Economic Contribution — Capital Improvements $ 3,450
      (E) Equity in Property — Date of Marriage $ 23,100
      (Fair Market Value of date of marriage at $160,000 minus principal amount of debt on date of marriage at $136,900)
      (F) Economic Contribution by Benefitted Estate (during marriage) $ 0 Husband testified that, by applying these figures to the formula proscribed by the Family Code, the economic contribution claim is $55,438.

      . Wife's economic contribution claim came from the following figures:
      (A) Total equity at date of divorce $ 68,937
      (The equity amount was based on the fair market value of the property on the date of divorce at $177,812 minus the principal amount of debt on date of divorce at $108,875)
      (B) Economic Contribution by Marital Estate (debt reduction) $ 28,025
      (C) Economic Contribution by Contributing Estate (debt refinancing) $ 0
      (D) Economic Contribution — Capital Improvements $ 0 (E) Equity in Property — Date of Marriage $ 38,177
      (Fair Market Value of date of marriage at $175,076 minus principal amount of debt on date of marriage at $136,900)
      (F) Economic Contribution by Benefitted Estate (during marriage) $ 0 Wife testified that by applying these figures to the formula proscribed by the Family Code, the economic contribution claim is $28,954.

      . Our application of the formula, however, leads to the slightly higher figure of $29,183.


author: JANE BLAND, Justice.

text:
    Connie MARTIN, Appellant, v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 01-03-01111-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 2004.

      Bobbie Sherril, Richmond, Leonard Mitchell Rubin, Houston, for Ad Litem.
    Chris Lynn Branson, Houston, for Appellant.
    James Edward Kincade, Stafford, Ramiro Canales, Asst. Atty. General, Austin, for Appellee.
    Panel consists of Chief Justice RADACK and Justices BLAND and SULLIVAN.

       The Honorable Kent Sullivan, State District Judge of the 80th Judicial District, Harris County, Texas, sitting by assignment.

   OPINION

JANE BLAND, Justice.

Appellant Connie Martin moved for sanctions against appellee, the Texas Department of Family and Protective Services (DFPS), alleging that the lawsuit the DFPS had filed against her was frivolous. The same day, the DFPS moved to nonsuit its claims against Martin, and the trial court granted the motion. Thereafter, Martin sought discovery against the DFPS. The DFPS responded by filing a plea to the jurisdiction, contending that the trial court had, by then, lost plenary power over the case. The trial court granted the DFPS’s plea and this appeal followed. We conclude that the trial court correctly determined that it lacked plenary power and therefore we vacate its order granting the plea and dismiss this appeal.

Background

In October 2002, the DFPS sued Martin, seeking protection of a child, conservator-ship, and the termination of her parental rights. On November 20, 2002, Martin moved for sanctions. That day, the DFPS moved to nonsuit its claims, and the trial court granted the motion. In February 2003, Martin served the DFPS with a request for disclosures, and it answered them in March. Martin then served the DFPS with additional discovery requests. When the DFPS did not answer, Martin moved to compel. The DFPS responded by filing a plea to the trial court’s jurisdiction. The trial court granted the plea in a written order on September 3, 2003.

Analysis

We review whether a trial court has subject matter jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

Trial Court Jurisdiction

A trial court retains jurisdiction over a case for 30 days after it signs a final judgment or order. Tex.R. Civ. P. 329b(d). During this period, the trial court has plenary power to modify its judgment, but, after the 30 days run, the trial court loses its plenary power, and lacks jurisdiction to act in the matter. Check v. Mitchell, 758 S.W.2d 755, 756 (Tex.1988). A party can extend the trial court’s plenary power, however, by timely filing an appropriate postjudgment motion, either a motion for new trial, Tex.R. Civ. P. 329b(e), or a motion to modify, correct or reform the judgment, Tex.R. Civ. P. 329b(g), within the 30 days after the trial court signs the final judgment or order. A timely motion for new trial or motion to modify extends the trial court’s jurisdiction over its judgment up to an additional 75 days, depending on when or whether the court acts on the motions. Philbrook v. Berry, 683 S.W.2d 378, 379 (Tex.1985); Tex.R. Civ. P. 329b(c). If a motion for new trial or to modify a judgment is not denied in a written order, then the motion is overruled by operation of law 75 days after the trial court signs the judgment. Tex.R. Crv. P. 329b(e). The trial court retains plenary power to alter its judgment for 30 days after it is overruled by operation of law. Tex.R. Civ. P. 329b(e), (e).

Nonsuits

Rule 162 provides that a plaintiff may nonsuit a case, “at any time” before the introduction of all of the plaintiffs evidence, as the DFPS did in this case. Tex.R. Civ. P. 162. It further provides:

Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief ... A dismissal under this rule shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal, as determined by the court.

Id. After a trial court loses plenary power, however, it has no authority to award sanctions. Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex.1996); In re T.G., 68 S.W.3d 171, 179 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (op. on reh’g); Jobe v. Lapidus, 874 S.W.2d 764, 766-68 (Tex.App.-Dallas 1994, writ denied). Thus, a trial court retains jurisdiction for 30 days after signing a final order of nonsuit to rule on pending motions. See Tex.R. Civ. P. 329b(d); In re Bennett, 960 S.W.2d 35, 38 (Tex.1997) (“Appellate timetables do not run from the date a nonsuit is filed, but rather from the date the trial court signs an order of dismissal”).

The Pending Motion for Sanctions

Martin contends that her motion for sanctions is a claim for affirmative relief that not only survives the DFPS’s nonsuit under Rule 162, but also extends the trial court’s plenary power until its resolution. Martin notes that she moved for sanctions before the trial court signed the nonsuit order. The record supports her contention. Martin further contends that the dismissal order was not a final order, as it failed to address her request for sanctions. The Texas Supreme Court, however, has held that a judgment need not resolve a pending sanctions motion to be final. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex.2000) (agreeing that a judgment does not have to resolve pending sanctions issues to be final). We also have so held. See In re T.G., 68 S.W.3d at 179.

Martin relies on Mattly v. Spiegel, Inc., 19 S.W.3d 890, 894 (Tex.App.-Houston [14th Dist.] 2000, no pet.) and McAllister v. Samuels, 857 S.W.2d 768 (Tex.App.-Houston [14th Dist.] 1993, no writ) to support her contention that a motion for sanctions is a claim for affirmative relief that survives a nonsuit. Mattly since has been disavowed by the Fourteenth Court of Appeals in In re J.R., 123 S.W.3d 669, 671 n. 6 (Tex.App.-Houston [14th Dist.] 2003, no pet.) and we have declined to follow it. See In re T.G., 68 S.W.3d at 179. Martin cites McAllister only for the proposition that “a claim for frivolous lawsuit damages is a claim for affirmative relief.” See McAllister, 857 S.W.2d at 779. We have recently held, however, that a motion for sanctions pursuant to Chapter 105 of the Texas Civil Practice and Remedies Code does not present a claim for affirmative relief. Torres v. Tex. Dep’t of Family and Protective Servs., No. 01-03-01125-CV, 2004 WL 1631305, at *2 (Tex.App.-Houston [1st Dist.] July 22, 2004, no pet. h.) (mem. op.); see Tex. Civ. Prac. & Rem.Code Ann. § 105.001-.004 (Vernon 1997) (allowing a “motion” for sanctions, not an affirmative “claim”). The trial court’s November 20, 2002 order granting nonsuit is a final judgment, and thus the trial court lost its plenary power, including its power to sanction the DFPS, 31 days later. After this date, the trial court had no jurisdiction to enter any sanctions award. Torres, 2004 WL 1631305, at *2-3. We hold that Martin’s motion for sanctions did not present a claim for affirmative relief, and the trial court’s order of dismissal was a final order.

Judicial action taken after the trial court’s plenary power has expired is void. See State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995); see also Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (defining a void judgment as one rendered when a court has no jurisdiction over parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court). A party affected by void judicial action need not appeal. State ex rel. Latty, 907 S.W.2d at 486. If an appeal is taken, however, the appellate court should declare void any orders the trial court signed after it lost plenary power over the case. Id.

After the trial court lost plenary power, it granted a plea to the jurisdiction on September 3, 2003. Because the trial court had lost its plenary power, the trial court’s order granting the DFPS’s plea is void. Id. An appellate court should declare post-plenary-power orders void and dismiss any appeal. See id.

Conclusion

We conclude that the trial court correctly determined that it had no plenary power. Thus, its order granting the DFPS plea to the jurisdiction is void, and we vacate the order and dismiss the appeal.

      . This agency was formerly known as the “Department of Protective and Regulatory Services.” See Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 1.27, 2003 Tex. Gen. Laws 611, 641.

      . The record reflects that the clerk filed the motion for non-suit at 10:36 a.m. and the order granting the non-suit at 10:36 a.m. on the same day. Martin filed an amended motion for sanctions the day after the trial court signed the nonsuit. In the trial court, Martin argued that she filed her motion for sanctions prejudgment. In any event, her amended motion for sanctions does not extend the trial court’s plenary power. In re T.G., 68 S.W.3d at 176.

      . Martin filed an amended motion for sanctions on November 21, 2002. Even if Martin’s amended motion for sanctions qualifies as a motion to modify the judgment, the result in this case would be the same. A motion to modify filed after a final judgment extends the trial court’s plenary power for a total of 105 days. See Tex.R. Civ. P. 329b(c), (e). Thus, the trial court’s plenary power would have expired on March 6, 2003, without any trial court ruling on the motion for sanctions.


author: TIM TAFT, Justice.

text:
    Javier Omar GUITERREZ, Appellant, v. The STATE of Texas, Appellees.
    No. 01-03-01068-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 16, 2004.
    Discretionary Review Refused March 2, 2005.

      Patrick F. McCann, Law Office of Patrick F. McCann, Houston, TX, for Appellant.
    Dan McCrory, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Hams County, Houston, TX, for Appellees.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION

TIM TAFT, Justice.

Appellant, Javier Omar Guiterrez, entered a plea of no contest, without an agreed punishment recommendation from the State, to the first-degree felony offense of arson. See Tex. Pen.Code Ann. § 28.02 (Vernon 2003). After having reviewed a presentence-investigation report, the trial court assessed appellant’s punishment at five years in prison. We determine whether, under Texas Code of Criminal Procedure article 1.15, sufficient evidence supported appellant’s conviction. See Tex. Code CRiM. ProC. Ann. art. 1.15 (Vernon Supp.2004-2005). We affirm.

Sufficiency of Evidence to Support Plea

In his sole issue, appellant contends that his judicial confession, in which he stipulated that the indictment’s allegations were true, is insufficient to support his conviction without the State’s providing additional evidence to prove the offense.

Appellant’s ‘Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” provided in pertinent part as follows:

In open court and prior to entering my plea, I waive the right of trial by jury. I also waive the appearance, confrontation, and cross-examination of witnesses, and my right against self-incrimination. The charges against me allege that in Harris County, Texas, JAVIER OMAR GUITERREZ, hereafter styled the Defendant, heretofore on or about January 2, 2003, did then and there unlawfully, START A FIRE by IGNITING A FLAMMABLE LIQUID with the intent to destroy and damage A HABITATION LOCATED AT 7063 DILLON, KNOWING THAT THE HABITATION WAS WITHIN THE INCORPORATED LIMITS OF A CITY, NAMELY HOUSTON, TEXAS. AGAINST THE PEACE AND DIGNITY OF THE STATE.
I understand the above allegations and I confess that they are true and that the acts alleged above were committed on January 2, 2003. In open court I consent to the oral and written stipulation of evidence in this case and to the introduction of affidavits, written statements, or witnesses, and other documentary evidence. ...

(Emphasis added.) In the admonishments portion of the same document, appellant again waived his rights to a jury trial and to the appearance, confrontation, and cross-examination of witnesses and “consented] to the oral and written stipulations of evidence in this case.” No further evidence was admitted. During the plea hearing, appellant answered affirmatively to the judge’s question, “You understand that by signing this [written waiver, stipulation and judicial confession] and pleading no contest that you are stipulating that if the State were allowed to call witnesses, those witnesses would testify that you committed this offense?”

A defendant charged with a felony offense may not be convicted on his plea of guilty or no contest alone; rather, the State must introduce sufficient evidence to support the plea. See Tex.Code Crim. Proc. Ann. art. 1.15. “The evidence is sufficient under article 1.15 if it embraces every essential element of the offense charged and establishes the defendant’s guilt.” Breaux v. State, 16 S.W.3d 854, 857 (Tex.App.-Houston [14th Dist.] 2000, pet. ref’d). “The evidence may be stipulated if the defendant ... consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court.” Tex.Code Crim. Proc. Ann. art. 1.15. A defendant who pleads no contest does not need to concede to the veracity of the evidence to which he stipulates, but if he does, the court will consider the stipulation to be a judicial confession. See Stone v. State, 919 S.W.2d 424, 426 (Tex.Crim.App.1996); Barnes v. State, 103 S.W.3d 494, 497 (Tex.App.-San Antonio 2003, no pet.); Wright v. State, 930 S.W.2d 131, 133 (Tex.App.-Dallas 1996, no pet.).

Appellant recognizes that a judicial confession or stipulation of evidence, by itself, suffices to sustain a conviction rendered upon a guilty plea. See, e.g., Johnson v. State, 722 S.W.2d 417, 422-23 (Tex.Crim.App.1986), overruled on other grounds by McKenna v. State, 780 S.W.2d 797 (Tex.Crim.App.1989); Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979). Appellant nonetheless asks that we hold that a no contest plea must be supported by additional evidence. Our Court’s and the Court of Criminal Appeals’s holdings are to the contrary, as are the holdings of other courts of appeals. The cases on which appellant relies do not require a contrary holding. In those eases, the State offered detailed evidentia-ry stipulations, but the courts did not hold on the issue of whether a judicial confession alone sufficed.

Accordingly, we overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . The indictment and the plea tracked the statutory elements of one means of committing first-degree-felony arson. See Tex. Pen. Code Ann. § 28.02(a)(2)(A), (d)(2) (Vernon 2003).

      . To the extent that appellant’s arguments could be construed to include an attack on a bare judicial confession to the allegations in the indictment as being sufficient to support a plea of guilty, we reject that attack on the basis of Johnson and Dinnery.

      . See Scott v. State, 945 S.W.2d 347, 348 (Tex.App.-Houston [1st Dist.] 1997, no pet.) (holding that appellant’s stipulation that he "agree[d] that the elements of the offense alleged [in the indictment] constitute the evidence in this case” sufficed under article 1.15 to support no contest plea); see also Tabora v. State, 14 S.W.3d 332, 337-38 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (holding that form "Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession” signed by appellant sufficed under article 1.15 to support no contest plea); Wright v. State, 930 S.W.2d 131, 133 (Tex.App.-Dallas 1996, no pet.) (holding that defendant’s "stipulation of evidence,” which tracked indictment’s language and averred that its factual allegations were true and correct and constituted evidence in case, sufficed to support no contest plea because "judicial confession standing alone is sufficient to satisfy the requirements of article 1.15.”); Matheson v. State, 832 S.W.2d 692, 693 (Tex.App.-Corpus Christi 1992, no pet.) (holding that judicial confession that indictment’s allegations were true, defendant’s open-court stipulation of evidence, and his identifying self as charged party, sufficed to support no contest plea under article 1.15); cf. Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App.1996) (holding that defendant’s stipulations that he read and understood indictment's allegations and that witnesses would testify that he committed acts alleged therein and that he was guilty, without statement of allegations’ veracity, sufficed under article 1.15 to support no contest plea).

        . See Brewster v. State, 606 S.W.2d 325, 329 (Tex.Crim.App.1980) (no contest plea); Wallace v. State, 478 S.W.2d 499, 499-500 (Tex.Crim.App.1972) (guilty plea).