text:
    Eugenio L. RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 08-04-00178-CR.
    Court of Appeals of Texas, El Paso.
    Dec. 16, 2004.

      H.W. Leverett, Jr., Midland, for appellant.
    John L. Pool, District and County Attorney, Andrews, for appellee..
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

SUSAN LARSEN, Justice.

In this case, we must decide whether a person who was convicted of murder pursuant to a plea agreement has the right to appeal the trial court’s denial of his post-conviction motion for DNA testing. We conclude that such a person does have the right to appeal. Accordingly, we will order the trial court to file a corrected certification of the defendant’s right of appeal.

PROCEDURAL BACKGROUND

In 1983, Eugenio L. Rodriguez pleaded guilty to murder and was sentenced to life in prison. In July 2002, he filed a motion for DNA testing and appointment of counsel. See In re Rodriguez, No. 08-03-00063-CR, 2003 WL 21419588, at *1 (Tex. App.-El Paso June 19, 2003, orig. proceeding) (not designated for publication). After months passed without a ruling from the trial court, Rodriguez filed a petition for writ of mandamus in this Court. See id. While the petition was pending, the trial court appointed counsel for Rodriguez. See id. at *l-*2. Because the trial court thus granted part of the relief Rodriguez requested in his mandamus petition, we denied the petition, stating, ‘We trust that the court will rule on Rodriguez’s motion for forensic DNA testing within a reasonable time after counsel has had an opportunity to consult with Rodriguez.” Id. at *2.

The trial court subsequently appointed Rodriguez a new attorney, who filed a new motion for DNA testing. See In re Rodriguez, No. 08-03-00499-CR, 2004 WL 516698, at *1 (Tex.App.-El Paso March 17, 2004, orig. proceeding) (not designated for publication). When another lengthy delay ensued without a ruling on the motion, Rodriguez filed a second mandamus petition in this Court. See id. at *1. Finally, on June 21, 2004, the court conducted a hearing and denied the motion for DNA testing.

Rodriguez filed a notice of appeal, and the trial court granted his trial attorney’s motion to withdraw without appointing appellate counsel. Rodriguez then filed a third mandamus petition, complaining that the trial court was preventing him from pursuing his appeal. See In re Rodriguez, No. 08-04-00289-CR, 2004 WL 2545088, at *1 (Tex.App.-El Paso Nov. 10, 2004, orig. proceeding) (not designated for publication). Finding no indication that the trial court was preventing Rodriguez from appealing, we denied the petition. See id. But we also issued an order, explaining that Rodriguez is entitled to an appointed appellate attorney, assuming he is indigent and desires the appointment of counsel. See Gray v. State, 69 S.W.3d 835, 837 (Tex.App.-Waco 2002, no pet.) (construing the former version of article 64.01(c) of the Code of Criminal Procedure). But see TexCode CRiM. PROC. Ann. art. 64.01(c) (Vernon Supp. 2004-05) (providing that for motions filed on or after September 1, 2003, counsel must be appointed only if the trial court “finds reasonable grounds for a motion to be filed”). We therefore ordered the trial court to conduct a hearing and to appoint counsel if it found that Rodriguez was indigent and desired the appointment of counsel.

We also noted that the clerk’s record did not contain the trial court’s certification of the defendant’s right of appeal, as required by Texas Rule of Appellate Procedure 25.2(a)(2), (d). We ordered the trial court to prepare and forward the certification to the trial court clerk for fifing in this Court.

In compliance with our order, the trial court conducted a hearing, appointed counsel, and prepared a certification of the defendant’s right of appeal. The certification states that this “is a plea-bargain case, and the defendant has NO right of appeal.”

Discussion

When the defendant pleads guilty and is punished in accordance with a plea agreement, he may appeal only those matters that the trial court granted permission to appeal and those matters that were raised by written motion filed and ruled on before trial. TexR.App. P. 25.2(a)(2). The trial court must certify whether a defendant has the right to appeal under this rule in every case in which it enters a judgment of guilt or other appealable order. Id. This Court has the authority to inquire into the accuracy of a trial court’s certification and to require the trial court to correct the certification if it is wrong. See Stowe v. State, 124 S.W.3d 228, 233, 236 (Tex.App.-El Paso 2003, no pet.).

One of the main interests served by Rule 25.2(a)(2) is judicial economy. Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App.2001). For example, in some cases, such as drug offenses, whether certain evidence should be suppressed is effectively dispositive of the case. If the defendant’s suppression motion is denied, the defendant may believe that he has little chance of an acquittal in a jury trial. In such a situation, the defendant may prefer to expedite matters, by pleading guilty and then appealing the denial of the suppression motion. Thus, the State secures an acceptable disposition of the case and the defendant obtains expeditious appellate review without the necessity of a full adversarial trial. Id. The Court of Criminal Appeals has held, “The restrictions which ensure judicial economy, limitations on the defendant’s right to appeal a conviction based on a plea bargain, are applicable to appeals concerning the conviction itself.” Id. But when a defendant is appealing an issue unrelated to his conviction, the restrictions should not apply because the purpose behind the rule is not served. Id.

The purpose behind the rule would not be served by applying its restrictions to this appeal. This appeal does not arise from Rodriguez’s conviction, but from a separate matter that arose after his conviction.

The statute that authorizes post-conviction DNA testing also indicates that the restrictions of the rule should not apply to this appeal. It allows the convicting court to order DNA testing if, among other things, identity was at issue in the case. Tex.Code CRiM. PROC. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004-05). The statute provides, “A convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea.” Id. art. 64.03(b). Thus, the Legislature expressed its intent to allow defendants who pleaded guilty the same right to post-conviction DNA testing as defendants who did not plead guilty. The statute also grants a right of appeal “in the same manner as an appeal of any other criminal matter....” Id. art. 64.05. No reference is made to the restrictions of Rule 25.2(a)(2).

We conclude that the restrictions of Rule 25.2(a)(2) do not apply to an appeal from the denial of post-conviction DNA testing.. Accord Lopez v. State, 114 S.W.3d 711, 713-14 (Tex.App.-Corpus Christi 2003, no pet.) (considering the merits of an appeal from the denial of post-conviction DNA testing where the defendant pleaded guilty pursuant to a plea agreement). We will therefore direct the trial court to file a corrected certification, showing that Rodriguez has the right to appeal.

      . We are not suggesting that the delay was the sole fault of the trial court. See Rodriguez, 2004 WL 516698, at *1 (noting that at least part of the delay was due to "scheduling conflicts"). We also note that the current presiding judge of the 109th District Court prosecuted Rodriguez for the murder, necessitating the assignment of a visiting judge to consider Rodriguez's motion for DNA testing.

      . At the hearing, the trial judge gave no indication that he intended to certify that Rodriguez had no right to appeal. At the conclusion of the hearing, the judge stated:
      Oh, I have prepared a document that— there is a requirement that before the appeal can really proceed that I sign a document that says you are entitled to appeal this matter. It is a document that has four or five choices, but the one that you’re interested in is that you're entitled to proceed. And they did that because apparently folks would enter into an agreed disposition and then appeal from it, and that’s no longer permitted.
      Although the judge's comments indicated that he had already signed the certification, the certification forwarded to this Court was signed after the hearing.


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice. DAVID GAULTNEY, Justice,

license: Public Domain

text:
    Mary Martha DOWNING, Appellant, v. Mark D. LARSON, M.D., P.A., and Mark D. Larson, M.D., Appellees.
    No. 09-04-167-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 21, 2004.
    Decided Dec. 22, 2004.

      Toby C. Easley, Jeffrey R. Matthews, Houston, for appellant.
    J.B. Whittenburg, Mike L. Painter, Or-gain, Bell & Tucker, LLP, Beaumont, for appellees.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Mary Martha Downing sued Mark D. Larson, M.D., P.A., and Mark D. Larson, M.D., (collectively, “Larson”) for medical malpractice in the performance of an open reduction/ internal fixation of a left orbital blow-out fracture. Downing alleged Dr. Larson was negligent in performing two surgeries to correct the entrapment of the inferior rectus muscle in her left eye. We hold the trial court erred in striking the plaintiffs expert evidence, and reverse the summary judgment.

A “no evidence” motion for summary judgment challenged the qualification of the appellant’s expert plastic surgeon and her evidence of causation. See Tex.R. Civ. P. 166a(i). Larson argued that Martin L. Bell, M.D., is not familiar with the standard of care applicable to a board certified plastic surgeon using a Synthes mesh to repair an orbital blowout fracture because it has been over fifteen years since Dr. Bell has treated an orbital blowout fracture and he has never used Synthes mesh. The appellees based the causation argument on Dr. Bell’s testimony that he does not know whether Downing has any residual problems due to the surgeries done by Dr. Larson and on his admission that some residual can remain even when the surgery is done properly.

In response, Downing submitted a tele-facsimile affidavit from Dr. Bell, the doctor’s medical report and curriculum vitae, and thirty-six pages from his deposition. She also included eight pages of Dr. Larson’s deposition. The appellees obtained a favorable ruling on their objections to Downing’s summary judgment evidence, and the trial court struck the opinions and testimony of Dr. Bell, effectively leaving the plaintiff without any evidence with which to satisfy Rule 166a(i). On appeal, Downing argues that the trial court erred in striking her evidence.

The appellees raised six objections to Downing’s evidence. First, Larson objected to a copy of the affidavit. A duplicate is admissible to the same extent as an original unless a question is raised as to the authenticity of the original or circumstances would make it unfair to admit the duplicate. Tex.R. Evid. 1003. Downing supplied the original affidavit in response to Larson’s objection to the facsimile. Therefore, the exclusion of the appellant’s summary judgment evidence is not affirm-able on this ground.

Second, the appellees contend Dr. Bell’s opinions were conclusory because they do not reveal his reasoning, the proper standard of care, how the standard was breached, and how the breach was a cause of damages. To raise a fact issue sufficient to defeat a no-evidence summary judgment in a medical malpractice case, the controverting expert evidence must identify the standard of care, establish the expert’s familiarity with that standard, and explain why the treatment rendered by the doctor breached the applicable standard of care. Silvas v. Ghiatas, 954 S.W.2d 50, 53 (Tex.App.-San Antonio 1997, writ denied). In his report and in deposition, Dr. Bell opined that in the first surgery, Dr. Larson failed to completely delineate the full extent of the fracture and to dissect and cover the posterior aspect of the fracture with the implant, so as to prevent residual or recurrent entrapment of the orbital muscle. The report observes Downing’s post-operative symptoms and the CT scan that revealed a “persistent bony defect behind the metal plate with continued partial entrapment of muscle.” Dr. Bell’s report also expresses his opinion that in the second surgery, Dr. Larson dissected the orbital floor more extensively and observed no entrapment, but he failed to replace the implant into the orbital floor to protect against recurrent entrapment post-operatively. The report notes that Dr. Larson “did not note any entrapment of muscle.” Dr. Bell describes a third surgery by a new doctor, who “encountered dense scar tissue along the orbital floor and around the inferior rectus muscle” and “discovered that the fractured bone fragments in the back of the orbit were not separated, and so he removed some fragments o bone.” He reports that the third surgery substantially improved the appellant’s vision. Dr. Bell explained with particularity what the standard of care was and explained how Dr. Larson failed to meet it and how damage resulted. Thus, the evidence is not conclusory for the reasons asserted by the appellees.

Third, Larson claimed a particular deposition excerpt consisted of hearsay because the opinion of Dr. Bell was based upon the opinion of Dr. Rudasill, a person whose affidavit was not attached. The deposition excerpt consists of Dr. Bell’s testimony that he had been apprised of Dr. Rudasill’s report that day, and that he had not been apprised of the report when he prepared his expert report, but that the Rudasill report suggests Downing’s injury is permanent. Downing supplied Dr. Ru-dasill’s report in a court-authorized supplement. Therefore, the exclusion of the appellant’s summary judgment evidence is not affirmable on this ground.

Fourth, Larson objected that certain opinions articulated by Dr. Bell during the deposition were inadmissible because they had been adduced through leading questions by Downing’s attorney. Counsel for Larson did not object to the questions on the ground that they were leading, as required by rule. Tex.R. Civ. P. 199.5(e). On appeal, Larson suggests that counsel had agreed that an objection to form would cover all objections in the depositions. No such agreement appears in the record, and the appellees do not cite us to where it might be located. The exclusion of the appellant’s summary judgment evidence is not affirmable on this ground.

Fifth, Larson challenged Dr. Bell’s qualifications as an expert. The appellees contend Downing failed to meet the burden of proving that Dr. Bell meets the requirements of Section 14.01, Article 4590i of the Texas Revised Civil Statutes. That article, since repealed, provided as follows, in pertinent part:

(a) In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:
(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
(b) For the purpose of this section, “practicing medicine” or “medical practice” includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.
(c)In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and
(2) is actively practicing medicine in rendering medical care services relevant to the claim.

See Act of May 5,1995, 74th Leg., R.S., ch. 140, § 2, sec. 14.01, 1995 Tex. Gen. Laws 985, 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.401 (Vernon Supp.2005)).

Dr. Bell’s curriculum vitae reveals that he is a 1967 cum laude graduate of Boston University School of Medicine; that he was on staff at Tulane University Hospital from 1975 to 1997; that since 1997 he has been on staff at a hospital in Arizona; that he is currently an assistant clinical professor of plastic surgery at Tulane; that he holds certifications from the American Board of Surgery (1974), the American Board of Plastic and Reconstructive Surgery (1976), and the American Board of Cosmetic Surgery (1986); that he holds medical licenses in Louisiana, Massachusetts, California, Arizona, and the Netherlands; that he was formerly chief of plastic surgery at two medical centers; and that he is currently practicing in Scottsdale, Arizona. Together with his affidavit and deposition testimony, the curriculum vitae establishes that Dr. Bell is a licensed physician, board certified in plastic and reconstructive surgery, and actively practicing medicine when the claim arose. He expressed knowledge of the accepted standards of medical care for the diagnosis, care, or treatment of the injury involved in the claim. Thus, the trial court’s ruling is not sustainable upon the ground that Dr. Bell failed to meet the criteria of Section 14.01, Article 4590L

Lastly, the appellees contend Dr. Bell has not done the surgery performed by Dr. Larson in over fifteen years, has never performed the surgery using the mesh used by Dr. Larson, and admitted there have been changes in the procedure since the time when he was performing the surgeries. In the course of his deposition, Dr. Bell explained that he does not use the brand of implant used by Dr. Larson; he uses a silicone implant with a Dacron mesh. He has not personally performed the surgery in fifteen years. He explained

Like many plastic surgeons, as you progress in practice, you tend to go from reconstructive surgery into cosmetic surgery. And since facial fractures tend to be emergency cases at all hours of the day and night, you get younger associates who come in with you and they do it and that’s basically the progression of my practice.

Dr. Bell explained the changed procedure referred to by the appellees. The practice at that time was to wait two weeks to perform the surgery; now, the consensus is to act as quickly as possible if there is actual entrapment. Dr. Bell explained that doctors in several specialties treat orbital fractures, and that oculoplastic surgeons who are ophthalmologists and oral maxillofacial surgeons tend to intervene earlier than plastic surgeons.

The appellees argue Dr. Bell fails to meet the Section 14.01 criteria that the expert be “actively practicing medicine in rendering medical care services relevant to this claim” because he has not personally performed the operation. Section 14.01 does not require that the expert personally perform the operation in question. In fact, the statute expressly provides that teaching and consultation with physicians providing direct care constitute practicing medicine.

The appellees argue, “Synthes mesh implants are made by a different material than the type of implants used by Dr. Bell and have different mesh, thus requiring different standards of care as to the usage, placement and removal.” According to Dr. Bell, “Synthes” is merely a brand name, and Dr. Bell testified that he has used numerous implants. We find no summary judgment evidence in the record supporting an argument that there is a significant distinction between the two implants, or that a different standard of care would apply if that particular brand of implant were used.

The test for admissibility of an expert’s testimony is whether the proponent established that the expert possesses knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex.2003) (quoting Broders v. Heise, 924 S.W.2d 148, 153 (Tex.1996)). Downing’s expert had extensive experience and expertise in the procedure performed by Dr. Larson, was actively practicing in the pertinent specialty when the treatment was provided and at the túne he provided the affidavit, and met the criteria expressed in Article 4590i, Section 1401, and Tex.R. Evid. 702. Thus, none of the grounds asserted for striking the appellant’s summary judgment evidence were meritorious. We hold striking the plaintiffs expert’s evidence was an abuse of the trial court’s discretion. Issue two is sustained.

The judgment of the trial court is reversed. We remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

GAULTNEY, Justice, dissenting.

DAVID GAULTNEY, Justice,

dissenting.

In determining whether an expert is qualified to offer an expert opinion, the trial court serves as the evidentiary gatekeeper. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 553-54, 556-58 (Tex.1995). In cases like this, the legislature has specified that the trial court shall consider whether a medical expert “is actively practicing medicine in rendering medical care services relevant to the claim.” It is undisputed that Dr. Bell is not currently performing the type of surgery involved in this claim. It is not an abuse of discretion for the trial court to rely on a consideration mandated by statute.

Rather than immediately granting the no-evidence summary judgment, the trial court could have provided the plaintiff an opportunity to replace the witness with someone whose expertise is current. See Tex R. Civ. Proc. 166(a)(i). Appellant raised no issue at the trial court or on appeal requesting that relief. I therefore respectfully dissent from the reversal of the trial court’s judgment.

      . See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 2, sec. 14.01, 1995 Tex. Gen. Laws 985, 988, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.401 (Vernon Supp.2005)). References


author: DAVID GAULTNEY, Justice.

text:
    COMPAQ COMPUTER CORPORATION, Appellant, v. Michael ALBANESE, Appellee.
    No. 09-03-523-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 23, 2004.
    Decided Dec. 22, 2004.

      David J. Beck, David M. Gunn, Alistair B. Dawson, Anne M. Pike, Beck, Redden & Secrest, LLP, Houston, Sheila L. Birn-baum, J. Russell Jackson, Skadden, Arps, Slate, Meagher & Flom, LLP, New York, NY, Robert Q. Keith, Keith & Weber, PLLC, Johnson City, for appellant.
    Wayne Reaud, Reaud Law Firm, L. De-Wayne Layfield, Law Office of L. De-Wayne Layfield, Hubert Oxford, III, Benckenstein & Oxford, LLP, Gilbert I. Low, Gary Neale Reger, Jack P. Carroll, Orgain Bell & Tucker, LLP, C. Keith Ke-bodeaux, Law Office of Keith Kebodeaux,
    Beaumont, James J. White, Ann Arbor, Michigan, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

DAVID GAULTNEY, Justice.

This is an interlocutory appeal by Compaq Computer Corporation from an order certifying a class under Texas Rules of Civil Procedure 42(b)(1)(A) and 42(b)(2). With some exceptions, the class generally consists of all United States residents and citizens who, on or after April 1, 1997, purchased certain Compaq products and received a written limited warranty.

The class representative, Michael Alba-nese, bought a Compaq laptop computer in April 1999 from Best Buy. After experiencing problems with the laptop, Albanese returned it to Best Buy on a number of occasions. Efforts to repair the computer were not successful. Albanese says Best Buy told him the problem was not covered under the warranty and could not be fixed. When Albanese telephoned Compaq, a recorded message said he might be charged a fee. Albanese hung up. Albanese sued Compaq on behalf of himself and a putative nationwide class of purchasers of certain Compaq products. The Compaq products were sold with a written limited warranty against “defects in materials or workmanship during normal use[.]” The petition asserts (1) a declaratory judgment action and asks for supplemental relief and (2) a claim for equitable and legal relief, other than damages, for violation of the Magnuson Moss Warranty Act (MMWA). See 15 U.S.C.A. §§ 2301-2312 (West 1998).

The limited warranty includes language substantially as follows, which Albanese says violates the MMWA:

Except as expressly set forth in this [warranty], Compaq makes no other warranties, express or implied, including any implied warranties of merchantability and fitness for a particular purpose. Compaq expressly disclaims all warranties not stated in this [limited warranty]. Any implied warranties that may be imposed by law are limited to the terms of this [express limited warranty].

Albanese seeks a declaration that the warranty violates the MMWA’s prohibition against disclaiming or modifying implied warranties. See 15 U.S.C.A. § 2808 (West 1998). Although he does not seek damages in this suit either for himself or the class members, Albanese has filed a separate breach of warranty lawsuit. In his brief on appeal he says: “This is not a breach of warranty lawsuit. Breach of warranty is not even an element of any claim in this lawsuit.”

Albanese explains he seeks a declaratory judgment under the Uniform Declaratory Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-37.011 (Vernon 1997 & Supp.2004). He cites to the following language in section 37.004 of the Texas Civil Practices and Remedies Code in support of this cause of action:

§ 37.004. Subject Matter of Relief
(a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
(b) A contract may be construed either before or after there has been a breach.

The requested declaratory relief sought by Albanese is described in his fourth amended petition as follows:

that: [1] the stated limitation, disclaimer, modification, or exclusion of implied warranties stated in the Affected Warranty is prohibited by, and made ineffective by, 15 U.S.C. § 2308 and is void; [2] when the Affected Products were sold, the Plaintiff and class had valid implied warranties that apply to all Affected Compaq Products and the duration of the implied warranties was and is not limited to the duration of the express warranty; [3] Compaq may not deny or impede implied warranty claims with respect to Affected Compaq Products on the ground that the Affected Warranty excludes, disclaims, or modifies implied warranties; [4] Compaq is required to notify all persons with an Affected Warranty [i] of the foregoing declarations, [ii] that they possess more expansive rights than provided under the Affected Warranty, and [iii] that the duration of the implied warranty is not limited to the duration of the Affected Warranty; [5] while Plaintiff does not seek reformation under state law, Compaq is required to provide the class members with a substitute warranty or other appropriate notice that omits the language that excludes implied warranties and which substitute warranty or other notice otherwise comports with the foregoing and the Magnuson Moss Act: and [6] such other more particular or ancillary judgments regarding the construction or validity of the Compaq warranty or said laws or the rights, status, or legal relations affected by the Compaq warranty or said laws, regarding implied warranties and the other matters pleaded above, as may be subsumed or related by or to any of the foregoing or as may be required to make relief effective and complete or end these controversies ....
... Plaintiff and all members of the class are further entitled to supplemental relief under CPRC § 37.011, as may be necessary or proper after adjudication by declaratory judgment.

Under the Declaratory Judgments Act, a person interested under a written contract, or whose rights are affected by a statute, may have determined a question of construction or validity arising under the contract or statute and obtain a declaration of rights. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004 (Vernon 1997).

The second cause of action, alternatively pleaded by Albanese, is under 15 U.S.C.A. § 2310(d) of the MMWA, which provides:

§ 2310. Remedies in consumer disputes
(d) Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims
(1) Subject to subsections (a)(3) and (e) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief[J

15 U.S.C.A. § 2310(d) (West 1998). The relief requested by Albanese under section 2310(d) in his fourth amended petition is as follows:

For Plaintiff and the class, alternatively seek “legal and equitable relief,” other than damages, directly under 15 U.S.C. § 2310(d); being: declaratory and equitable relief substantially similar to the relief sought in the First Cause of Action pleaded above and appropriate legal and equitable orders implementing said remedial judgments and assuring compliance.

The statute provides that a consumer who is damaged may sue a supplier for its failure to comply with an obligation under the MMWA; and the obligations under the Act include the substantive requirements in section 2308. See Gorman v. Saf-T-Mate, Inc., 513 F.Supp. 1028, 1031 (N.D.Ind.1981) (Individual consumers are authorized by separate provisions [section 2310(c)(d) ] of the Act to sue to enforce the substantive obligations under the Act). Albanese is not precluded by the Act from suing for a declaratory judgment to determine warranty rights affected by the MMWA.

The trial court’s class certification order includes findings of fact, conclusions of law, and a trial plan. The order anticipates declaratory, equitable, and legal relief other than damages. The order provides that no breach of warranty will be permitted to be asserted and “damages are not sought.” The order is not explicit as to the applicability of notice and opt-out protection for class members. However, a claims process identifying the members of the class is anticipated and the order references “special notice and a right of appearance” granted by Rule 42(c).

After the parties filed their first briefs, the Supreme Court issued its opinion in Compaq Computer Corp. v. Lapray, 135 S.W.3d 657 (Tex.2004). Compaq says La-pray requires reversal of this certification order because the order does not rigorously analyze the cohesiveness of the class or notice and opt-out rights. Albanese says we should not remand the case because the class does not assert a breach of warranty claim, the trial court did perform a rigorous analysis of cohesiveness and choice of law, the trial court found the substantive law permits declaratory and equitable relief without the need to show a breach of warranty, and notice and opt-out rights are not required because the class does not seek damages.

The record reflects the trial court’s careful review of numerous issues presented by the parties, but it is not apparent from the certification order the court focused on the necessity of providing opt-out rights to class members if more than declaratory relief is to be provided. This is a mandatory class certification order that anticipates providing nationwide legal and equitable relief to the exclusion of damages. For example, in the section of the order listing the issues to be tried, the court lists, in quotes, “Other legal and equitable relief’ under 15 U.S.C. § 2301(d). It is clear from the order that those remedies will not include damages. In Lapray the Supreme Court said that an appellate court cannot effectively review a certification order that does not say how, if any, notice and opt-out rights will be provided. Lapray, 135 S.W.3d at 668. The Court stated that “if damage claims are implicated, constitutional considerations will likely mandate such protections.” Id. Damages may be “implicated” though not asserted by the class representative. We conclude it is necessary to remand this case for further analysis of the cohesiveness of the class, choice of law, joinder of the declaratory relief and the Section 2310(d) relief, and notice and opt-out rights by the trial court in light of Lapray.

The cohesiveness of the class is a due process concern. Mandatory classes — classes with no possibility of exit — require the class members’ interests be homogenous. See id., 135 S.W.3d at 670. A mandatory class member is thought not to have an individual right to a result independent of any other class member. See generally Dairyland County Mut. Ins. Co. of Texas v. Casburg, 63 S.W.3d 590, 592 (Tex.App.-Beaumont 2001, pet. dism’d w.o.j.) (“If significant individual issues pervade the action, certification of a (b)(2) class might prejudice the class members .... ”). Because of the presumed cohesiveness of the class, no opportunity to exit is mandated by Rule 42 for a (b)(1) or (b)(2) class. See Lapray, 135 S.W.3d at 664, 670.

The degree of cohesiveness of the mandatory class — its unity — is the rationale for the lack of opt-out rights. An adjudication of absent class members’ interests may be unfair if those interests conflict with those of the class representative, and the absent parties are given no opportunity to exclude themselves from the class action. See generally Lapray, 135 S.W.3d at 668 (If some purchasers suffered damages disclaimed by the class, their inclusion in a mandatory class may be improper.). The requirements for certification of a mandatory class must be strictly followed to assure the necessary class cohesiveness.

The certification order says “[i]f proof of claims are required,” “the Court can fashion a proof of claim process[,]” and says “[a]t this point, the only issue that will be covered by the proofs of claim is membership in the class.” The order explains that “[a]s damages are not sought, the only purpose of the proof of claim is to further identify the members of the class and confirm that a particular person obtains the declaratory, supplemental, and equitable relief that may be recovered.” And “[i]f disputes arise concerning any issue covered by the proof of claim for any individual or individuals, then the dispute could be resolved by the Court or a jury.”

If the only remedy sought here is declaratory relief, it is unclear why a claims process with individual proof of claim is anticipated or what “other legal and equitable relief’ is to be provided in that process. On the other hand, if the intent of the claims process here is to confirm that individual class members obtain repair, replacement, refund or other relief (other than damages) enforced by an injunction, it is unclear how liability will be determined on an individual claim basis, and it is unclear why a monetary damages remedy would not be preferable by some or would not be precluded by the final judgment in this case.

The trial court considered the pre-clusive effect of the judgment on absent class members and stated, “Compaq made a strong objection based on the potential that the judgment in this case would be impermissible claims splitting and that res judicata may preclude the claims of absent class members for breach of warranty.” The Court stated it was “concerned with the objection,” but found that the concerns and objections “are not a reason to deny certification.” The trial court concluded any claims, other than the same claims “for declaratory and equitable relief that are being litigated in this lawsuit,” would not be barred “in a subsequent action.” However, it is unclear what relief under the MMWA the trial court anticipates in its trial plan by use of the terms “other legal and equitable relief,” “supplemental” relief, and “corresponding” relief. If more than a declaratory judgment is anticipated, and a remedy other than damages is to be provided to an individual consumer with a defective product, that elected remedy may foreclose a later damage remedy by the same consumer for the same product and notice and opt-out rights will likely be required.

The trial judge did not have the benefit of the Supreme Court’s opinion in Lapray. The certification order suggests the trial court would certify a statewide class if a nationwide class is inappropriate, and the alternative nature of the two causes of action and the description of the anticipated claims process indicate the trial court may consider only declaratory relief rather than a nationwide claims process for “other legal and equitable relief,” “supplemental,” and “corresponding” relief. As Lapray says, it is difficult for an appellate court to effectively review a certification order that does not address notice and opt-out rights. Here, without written analysis, the order does not provide opt-out rights. If notice and opt-out rights are provided to a 42(b)(2) class, the class cohesion analysis often “will be identical to the ‘predominance and superiority’ directive undertaken by the trial courts certifying (b)(3) classes.” Lapray, 135 S.W.3d at 671. But where the class is mandatory, as here, the trial court must apply a more rigorous standard of class cohesion, because the members will be bound by the judgment without the opportunity to opt out. Id. (citing John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L.Rev. 370, 435 (2000)). Rather than determine the issues in this appeal on this record, we reverse the certification order and remand to the trial court for further analysis, considering La-pray, of the appropriateness of the joinder of the two claims asserted here, the cohesiveness of the (b)(2) class, the choice of law, and the due process requirements of notice and opt-out opportunities for the proposed (b)(2) class.

The trial court also certified the class under 42(b)(1)(A). Schein makes clear a court must not certify a mandatory class under (b)(1)(A) unless there is a palpable risk the defendant will be placed in a position of being incapable of complying with one judgment without violating the terms of another. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 691-92 (Tex.2002). Rule 42(b)(l)(A)’s criteria is not met merely by showing that different courts might reach different results on similar claims. Id. There is an insufficient showing of a palpable risk that Compaq’s conduct, absent certification of this class, would be bound by irreconcilably conflicting judgments. Regardless, the certification under (b)(1)(A) should be analyzed the same as under (b)(2) for purpose of notice and opt-out rights and the effect of the judgment on absent class members. The class must be cohesive. We reverse and remand the (b)(1)(A) certification to the trial court for further analysis in light of Lapray, and for required further development of the record if separate certification under (b)(1)(A) is to be considered by the trial court.

Appellant’s other arguments and issues likely will be impacted by the trial court’s additional proceedings. We therefore do not reach them in this appeal. The certification order is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . We note the following footnote in Compaq Computer Corp. v. Lapray, 135 S.W.3d 657 (Tex.2004) applicable here: "At the time the class was certified, rule 42 (unlike its federal counterpart) required individual notice to members of (b)(2) classes. Compare Tex.R. Civ. P. 42(c)(2), 553-554 S.W.2d (Tex.Cases) XXKVI-XXXVII (1977, amended 2004), with Fed.R.Civ.P. 23(c)(2) (individual notice required only for (b)(3) classes). Rule 42 was recently amended to conform more closely to federal rule 23 and no longer mandates individual notice for (b)(2) classes. See Tex.R. Civ. P. 42(c)(2)(A) ('For any class certified under Rule 42(b)(1) or (2), the court may direct appropriate notice to the class.’)(emphasis added).” Lapray, 135 S.W.3d at 668 n. 11.

      . Nevertheless, due process concerns may arise. See generally Lapray, 135 S.W.3d at 667 (Due process concerns associated with individual notice and opt-out rights must be considered in a (b)(2) class.). A final judgment in an action generally determines the interests of the parties and is binding on them. See Gibraltar Sav. Ass’n v. Kilpatrick, 770 S.W.2d 14, 18 (Tex.App.-Texarkana 1989, writ denied). Principles of claim preclusion may operate to bar a party from subsequently asserting claims that were raised or could have been raised in the first action. See generally Parklane Hosiery Co. v. Shore, 439 U.S. 322, 332, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (general principles of res judicata)-, see generally Lapray, 135 S.W.3d at 664 (noting that defendants attempting to effect res judicata may prefer (b)(2) certification over (b)(3)); see also Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 386 (Tex.App.-Beaumont 2004, pet. denied) (applying res judicata or claims preclusion principles in class action settlement context).

      . Notice and opt-out rights will likely be required in a (b)(2) class where damage claims are implicated, and damage claims are clearly implicated where they may be barred by the judgment. A significant conflict among the class members or between the class representative and class members regarding claims and remedies precludes a mandatory Rule 42(b)(2) certification and would necessarily impact on the Rule 42(a) adequacy of representation and typicality analysis. On remand the trial court must consider all the requirements of Rule 42 if a class is to be certified.

      . The interests of a consumer with a working product and a consumer with a defective product may conflict. Rather than pursue a claim seeking a declaration that a warranty disclaimer is invalid and requesting legal or equitable relief other than damages, a consumer with a defective product may have an interest in asserting a claim for damages under the MMWA.

      . The order does not explain fully what that other relief will be. It is conceivable, though the MMWA is federal law, that relief available to class members may vary, because courts may look to state law in providing enforcement remedies under the MMWA with respect to limited warranties. See Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir.2004). The certification order concludes the differences in state law are not "outcome determinative,” essentially because federal law governs the effect of the disclaimer language, and the order also concludes without written analysis that the differences in state law do not make Albanese's claim atypical. But Lapray requires an analysis of the law applicable to the nationwide remedies to be provided in any claims process. See generally Lapray, 135 S.W.3d at 672-681. Even if the remedies are the same nationwide, this mandatory class is selecting remedies other than damages. The class representative here seeks alternatively legal and equitable relief for a violation of the MMWA as well as declaratory relief. In Texas it is at least unusual for a declaratory judgment action to be joined with a mature liability claim on the same issues. See Texas A & M Univ. Sys. v. Luxemburg, 93 S.W.3d 410, 425 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). In a mandatory (b)(2) class action, joining the two types of causes and electing a claim and a remedy for a nationwide class while abandoning the remedy of damages raises cohesiveness concerns. See Lapray, 135 S.W.3d at 670.

      . Though efficient adjudication is one of the aims of a class action, the class action procedure cannot be used in a way that modifies substantive law or deprives absent class members of due process. See Southwestern Ref. Co. v. Bernal, 22 S.W.3d 425, 437 (Tex.2000). The determination of the applicable substantive law in a nationwide class action is therefore "of paramount importance.” Lapray, 135 S.W.3d at 672. The trial court must know what the possible applicable remedies will be so that it can determine the cohesiveness of the class. See id. at 673-75; see Union Pac. Resources Group, Inc. v. Hankins, 111 S.W.3d 69, 73 (Tex.2003); see also Bernal, 22 S.W.3d at 435-36.


author: PER CURIAM.

text:
    Charles MOORE, Appellant, v. James R. ZELLER, et al., Appellees.
    No. 09-04-156-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 26, 2004.
    Decided Dec. 22, 2004.

      Charles Moore, Beaumont, pro se.
    Greg Abbott, Atty. Gen., Audrie L. Law-ton, Asst. Atty. Gen., Austin, for appellees.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

PER CURIAM.

Charles Moore, an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division, filed a civil rights suit against Correctional Institutions Division employees James R. Zeller, Lloyd Massey, Timothy Hindsman, Michael Hinote, Beverly Brown, Johnny Thompson, Sophia Miller, Gail Shelton, and Brenda Farr. Seven of the nine defendant’s filed a joint answer; only Zeller and Hinote did not answer. Said answer alleged, inter alia, that Moore failed to prove he exhausted all administrative remedies within the penal grievance system before initiating the lawsuit. See Tex. Civ. Prac. & Rem.Code Ann. § 14.005(a) (Vernon 2002). The defendants also contended that because Moore failed to file proper documentation under section 14.005(a), there is no proof that Moore filed his lawsuit within thirty-one days following his receiving the written decision from the administrative grievance system, as mandated by section 14.005(b). In dismissing Moore’s lawsuit, the trial court found that Moore’s petition was not in compliance with the requirements set forth in Texas Civil Practice and Remedies Code, Chapter 14. Moore’s lawsuit was dismissed without prejudice. Moore raises three issues challenging the trial court’s dismissal of his lawsuit.

An inmate proceeding in forma pauperis, as does Moore, is subject to the procedural requirements of Chapter 14. See Tex. Civ. Prac. & Rem.Code Ann. § 14.002 (Vernon 2002). Under Chapter 14, a trial court has broad discretion to dismiss a lawsuit as frivolous or malicious. Retzlaff v. Tex. Dep’t of Criminal Justice, 94 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, pet. denied). Therefore, we review dismissal of suits under Chapter 14 under an abuse of discretion standard. Hines v. Massey, 79 S.W.3d 269, 271 (Tex.App.-Beaumont 2002, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

Moore’s petition in the instant lawsuit was filed August 15, 2003. The substantive allegations in the present lawsuit mirror those in Moore’s lawsuit filed in 2002, which led to this Court’s opinion in Moore v. Zeller, 108 S.W.3d 373 (Tex.App.-Beaumont 2003, no pet.). In that appeal, the lone issue was whether the trial court erred in dismissing Moore’s civil rights suit against the same defendants “with prejudice.” Id. at 373-74. On that limited issue, we found in Moore’s favor, reformed the judgment of dismissal to indicate it was “without prejudice,” and as so reformed, affirmed. Id. at 374.

In his present petition, Moore set out abbreviated grievance information indicating the results of steps one and two of the grievance process, but failed to indicate the dates the written grievance decisions were received by him. Furthermore, Moore entirely failed to attach any copies of the written decisions from the grievance system as required by section 14.005(a)(2). Moore’s petition states, “This is contents of previous Lawsuit filed in State Court, in Polk County, Texas on/or about June 29, 2002 STYLED: Charles Moore, Plaintiff v. James R. Zeller, ET. AL, Defendants.” [sic et passim],

This court may take judicial notice of its own records, and we do take notice of the record of the appeal of Moore’s prior lawsuit. See Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 78 (Tex.App.-San Antonio 1996, writ denied). Moore’s prior petition, with a file-stamp of July 1, 2002, is silent with regard to Moore having filed any grievances at all. There are no copies of any written grievance decisions. An examination of the instant record, and the pleadings filed by Moore in his 2002 lawsuit, indicate Moore failed to comply with the requirements of section 14.005.

As noted above, section 14.005(b) requires a trial court to dismiss a claim if the inmate fails to file it before the thirty-first day after the date that he received the written decision from the grievance system. See also Moreland v. Johnson, 95 S.W.3d 392, 394 (Tex.App.-Houston [1st Dist.] 2002, no pet.). In order to enable a trial court to determine if the inmate’s suit was filed within the period required by section 14.005(b), the inmate must file (1) an affidavit or unsworn declaration stating the date the grievance was filed and the date the written decision was received by the inmate; and (2) a copy of the written decision from the grievance system. See section 14.005(a); Hines, 79 S.W.3d at 271. In the instant case, Moore’s paraphrased summary of his grievance issues and results do not meet the requirements of section 14.005(a) as it does not include a copy of the decisions, if any, of the grievance system, and because the summary does not include the specific date when Moore received the written decisions, if any. See Bishop v. Lawson, 131 S.W.3d 571, 574 (Tex.App.-Fort Worth 2004, pet. denied).

Accordingly, we hold the trial court did not abuse its discretion in dismissing Moore’s suit for his having failed to comply with the requirements of Chapter 14 as discussed above. Moore’s three issues are overruled. The trial court’s order of dismissal is affirmed.

AFFIRMED.


text:
    In re COMMITMENT OF Michael McKINNEY.
    No. 09-04-293 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Nov. 18, 2004.
    Decided Dec. 22, 2004.

      Daniel E. Maeso, Nelda F. Williams, State Counsels for Offenders, Huntsville, for appellant.
    Autumn Lewis, Special Prosecution Unit, Huntsville, for appellee.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

PER CURIAM.

The State of Texas filed a petition to commit Michael McKinney as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.150 (Vernon 2003 & Supp.2004-05). A jury found McKinney suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence, and further found McKinney has serious difficulty in controlling his sexually violent behavior. The appellant does not challenge the sufficiency of the evidence to support the jury’s findings. The trial court entered a final judgment and order of civil commitment. McKinney presents three issues in his appeal. We find no error and affirm the judgment.

The appellant’s first issue contends the judgment is void because section 841.041 of the Health and Safety Code violates the state constitutional prohibition on the passage of special and local laws changing the venue in civil and criminal cases. See Tex. Const, art. Ill, § 56(a)(4); Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp.2004-05). McKinney did not present this challenge to the trial court, and raises the issue for the first time on appeal. Therefore, no error is preserved for appellate review. In re Commitment of Johnson, No. 09-04-060 CV, 2004 WL 2955000, 153 S.W.3d 129 (Tex.App.-Beaumont 2004, no pet. h.)(not yet reported); Tex.R.App. P. 33.1. Issue one is overruled.

In his second issue, McKinney argues section 841.082(d) of the Texas Health and Safety Code is void for vagueness “in that it appears to mandate the trial judge to transfer jurisdiction ‘for purposes of appeal’ to another district court.” See Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2004-05). We considered and rejected an identical argument in In re Commitment of Lowe, 151 S.W.3d 739, 741-44 (Tex.App.-Beaumont 2004, no pet. h.). We reject McKinney’s argument for the same reasons expressed in Lowe. Issue two is overruled.

In his third issue, McKinney contends the commitment requirements of section 841.042 of the Health and Safety Code and the final judgment and commitment order violate due process because they are overly broad and vague. See Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2004-05). Except for a reference to separation of powers, the arguments presented by McKinney were also presented in Johnson. Johnson, at 131. McKinney did not present to the trial court any of the complaints raised under the arguments relating to this issue. Because the errors asserted on appeal were not presented to the trial court, the appellant’s error has not been preserved for appellate review. Id.; Tex. R.App. P. 33.1. Issue three is overruled. We affirm the judgment.

AFFIRMED.


author: RICHARD BARAJAS, Chief Justice.

text:
    In the Matter of H.R.C., a Juvenile.
    No. 08-03-00230-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 23, 2004.

      M. Clara Hernandez, El Paso County Public Defender, El Paso, for Appellant.
    Jose R. Rodriguez, County Atty., El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a judgment of commitment committing the juvenile H.R.C. to the Texas Youth Commission (TYC) following adjudication that she had engaged in delinquent conduct. We affirm.

I. SUMMARY OF THE EVIDENCE

On April 7, 2003, H.R.C. was adjudicated of having engaged in delinquent conduct for theft over $50 but less than $500. This was her third adjudication as she had previously been adjudicated for a similar theft and evading arrest. After the second adjudication, the juvenile was placed under house arrest on supervised probation and electronic monitoring. She was required to take all required medication and to attend family counseling. On February 27, 2003, she was referred to the Juvenile Probation Department for theft over $50 but less than $500. The next day she absconded from school and was found at a restricted peer’s home. On March 6, 2003, the juvenile again absconded and she did not return home until March 9, 2003. These actions led to her third adjudication which provided the basis for the court’s commitment of the juvenile to the TYC. At the disposition hearing, a report from the Juvenile Probation Department was admitted into evidence. This report recommended that H.R.C. required intensive supervised probation, psychiatric treatment, medication, urinalysis testing, and residency at a drug treatment center. This report was revised to indicate that the juvenile required a structured and secure environment such as being placed under the care, custody, and control of the TYC.

A psychiatric evaluation was admitted into evidence at the disposition hearing. Dr. Raul Jimenez assessed the juvenile as having bipolar disorder, disruptive behavior, and mixed substance abuse including marijuana and alcohol. She had poor compliance with medications.

A letter from a psychiatrist, Dr. Katz, was admitted into evidence. This letter stated that the juvenile was under his care and that she suffered from attention deficit disorder, systhymic disorder, and personality disorder. She required medication and therapy.

A psychological evaluation performed by Dr. Basurto was admitted into evidence. He found that the juvenile’s overall treatment outlook was poor in that she suffered from early onset depression including two suicide attempts. Dr. Basurto stated that she had difficulty developing coping skills in dealing with frustration and interpersonal conflicts. In difficult situations he predicted that she could become impulsive and act out against herself. He recommended that she be placed in a residential treatment facility — a highly secured environment.

Dora Rodarte, H.R.C.’s juvenile probation officer, testified regarding incidents where the juvenile engaged in rebellious, uncooperative, and risky behavior. She had altercations with her mother, she interacted with prohibited teens, was truant from school, engaged in sexual promiscuity, drinking, drug taking, and at least one suicide attempt. Rodarte testified that the juvenile continually runs away from home and school on a regular basis. She stated that placing H.R.C. with her father posed difficulties in that he was out of town often due to his job, and he could not adequately supervise the juvenile. Rodarte testified that she had explored the possibility of placing H.R.C. at Peak Hospital for inpatient care. She was informed that she did not qualify for their program. The hospital staff recommended some form of long-term residential treatment. Rodarte testified that other available residential treatment facilities were ineffective and there were no other available resources. They did not present viable options for placement. She testified that both the juvenile’s parents felt they could not adequately supervise her. She was not aware of any local residential treatment facility that could take the juvenile. H.R.C.’s father testified that, after hearing all the evidence, he thought his daughter needed constant supervision that he was not able to provide and he stated that a commitment to TYC was a proper action. The juvenile’s mother agreed with that assessment.

The court found that the juvenile was in need of rehabilitation and that the protection of the public and her own protection required that a disposition be made. The court found that reasonable efforts had been made to prevent or eliminate the need for the juvenile to be removed from her home. The court stated the reasons for her commitment to TYC: (1) that the juvenile needed to be held accountable for her delinquent behavior; (2) that she posed a risk to the safety and protection of the community; (3) that there were no community-based, intermediate sanctions available to adequately address her needs; and (4) her prior record of delinquency indicated that she needed to be confined in a secure facility.

II. DISCUSSION

In two issues, H.R.C. maintains that the evidence was legally and factually insufficient to support her commitment to the Texas Youth Council. The juvenile court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answers to a charge. In the Matter of A.S., 954 S.W.2d 855, 861 (Tex.App.-El Paso 1997, no pet.); In the Matter of J.P.O., 904 S.W.2d 695, 699-700 (Tex.App.-Corpus Christi 1995, writ denied). We do not disturb the juvenile court’s disposition order in the absence of an abuse of discretion. A.S., 954 S.W.2d at 861; In the Matter of E.F., 585 S.W.2d 213, 215 (Tex.Civ.App.-Corpus Christi 1976, no writ). The juvenile court’s exercise of discretion in making an appropriate disposition is guided by the requirements of Section 54.04 of the Family Code. A.S., 954 S.W.2d at 861. Section 54.04(c) provides that the trial court may not place a juvenile outside of his home unless it finds that the child, in the child’s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. Tex. Fam.Code Ann. § 54.04(c) (Vernon Supp.2004-05). Further, in order to commit a child to TYC, the court must additionally find that placement outside of the child’s home is in the child’s best interest and that reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home. Tex. Fam. Code Ann. § 54.04(i).

Regarding the legal sufficiency of the evidence, we have traditionally applied the civil no evidence standard of review to legal sufficiency challenges of juvenile disposition orders. See A.S., 954 S.W.2d at 858. In reviewing the legal sufficiency, we consider only the evidence and inferences tending to support the findings under attack and set aside the judgment only if there is no evidence of probative force to support the findings. A.S., 954 S.W.2d at 858; In the Matter of T.K.E., 5 S.W.3d 782, 785 (Tex.App.-San Antonio 1999, no pet.).

In reviewing this factual sufficiency challenge, we view all of the evidence but do not view it in the light most favorable to the challenged findings. See A.S., 954 S.W.2d at 860; R.X.F. v. State, 921 S.W.2d 888, 900 (Tex.App.-Waco 1996, no writ); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust will we conclude that the evidence is factually insufficient. See A.S., 954 S.W.2d at 860; R.X.F., 921 S.W.2d at 900 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) and Clewis, 922 S.W.2d at 129).

Regarding the legal sufficiency of the evidence, we find that the court had sufficient information to commit H.R.C. to TYC. All the evidence indicated that there was no available source to provide the supervision and structure that the juvenile required. All past efforts at rehabilitation had failed and H.R.C. required constant structured supervision. The court did not abuse its discretion.

Regarding the factual sufficiency of the evidence, H.R.C. cites five factors that indicate the evidence is factually insufficient: (1) the juvenile had engaged in a short period of delinquent behavior; (2) that she had mental health needs which had not been addressed; (3) that she should not be placed with her mother because of her proven propensity to run away; (4) that her father was willing to take her into his home; and (5) she had not been placed in available treatment facilities as an alternative to commitment to TYC.

Regarding the first factor, it is clear that the juvenile did engage in repeated delinquent behavior and this serves to support the court’s action. The second contention ignores the fact that H.R.C. had undergone extensive mental health treatment and one of her examining psychologists, Dr. Basurto, recommended that the juvenile be placed in a residential treatment facility or other highly structured environment due to her mental condition.

With regard to the third factor, all the evidence before the court indicated that placement in the mother’s home was not an option. However, in her fourth assertion, H;R.C. asserts that she could have been placed with her father. While her father did express an initial desire for her to live with him, he ultimately admitted that he could not adequately supervise her and the TYC commitment was in her best interest.

Lastly, the juvenile maintains that she had not been placed in available treatment facilities as an alternative to commitment to TYC and as a condition of probation. The applicable statutes requires only that “reasonable efforts were made to prevent or eliminate the need for the child’s removal from the home .... ” Tex. Fam.Code Ann. § 54.04(i)(l)(B) (Vernon Supp.2004-05). In the present case, the court heard testimony that none of the residential treatment centers which contracted with Juvenile Probation Department were appropriate for H.R.C.’s situation because of her inability to qualify for their programs, their poor performance with past probationers, and the inability to' provide for their expenses. Ms. Rodarte testified that she was not aware of any facilities in El Paso County or nearby where the juvenile could be placed. Given the gravity of H.R.C.’s problems and mental difficulties, the court was caused to state, “we just don’t have the services anymore that we can rely on to help us with young people that have these kinds of problems.” We do not find that the evidence is contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust and we find that the evidence is factually sufficient to support the judgment. Issue Nos. One and Two are overruled in their entirety.

Accordingly, we affirm the judgment of commitment of the trial court.