author: MACK KIDD, Justice.

text:
    TEXAS STATE EMPLOYEES UNION/CWA LOCAL 6184 A.F.L.C.I.O.; Pat McCowan; Betty McCoy; Ed Carpenter; and Lydia DeLeon, Individually and on Behalf of Others Similarly Situated, Appellants, v. TEXAS WORKFORCE COMMISSION; Council on Workforce and Economic Competitiveness; Michael Sheridan, Individually and in his Official Capacity and his successors in office; and George Bush in his Official Capacity as Governor of the State of Texas and his successors in office; Gulf Coast Workforce Development Board; and Coastal Bend Workforce Development Board, Appellees.
    No. 03-99-00171-CV.
    Court of Appeals of Texas, Austin.
    March 2, 2000.
    Rehearing Overruled May 18, 2000.

      Larry Daves, Larry R. Daves & Associates, San Antonio, for appellants.
    Lucinda J. Garcia, Wood, Boykin & Wol-ter, P.C., Corpus Christi, for Coastal Bend.
    David S. Morales, Asst. Atty. Gen., Austin, for Texas Workforce; Council on Workforce; Michael Sheridan; and George Bush.
    Marcy Hogan Greer, Fulbright & Ja-worski L.L.P., Austin, for Gulf Coast.
    Before Justices JONES, KIDD and PATTERSON.
   MACK KIDD, Justice.

This is an appeal of a trial-court order granting appellees their plea to the jurisdiction, thereby dismissing each of appellants’ causes of action. In ten issues, appellants, former employees of the Texas Workforce Commission, contend that the trial court erred in ruling that their claims were jurisdictionally barred by the doctrine of sovereign immunity and a lack of standing. Concluding that the trial court erred in dismissing appellants’ causes of action for lack of jurisdiction, we will reverse the trial court’s order and remand this cause for further proceedings.

BACKGROUND

This suit arises out of the complaints of former employees of the Texas Workforce Commission (the “Commission”) who lost their jobs as a result of the Commission’s decision to privatize several of the State’s workforce-development programs. The Commission was established in 1995 to operate Texas’s integrated workforce-development system that had been created by consolidating the State’s various job training and employment-related programs. See Act of May 26, 1995, 74th Leg., R.S., ch. 655, § 301.001, 1995 Tex. Gen. Laws 3543, 3581. It was also created to administer Texas’s unemployment compensation program. See id.

In 1997, the Commission decided to overhaul its structure by transferring to the private sector the responsibility of administering several of the State’s workforce-development programs. Specifically, it chose to shift all authority over the administration of these programs to certain certified local workforce-development boards. In turn, these boards were required to hire private service providers that would directly administer these programs on a contractual basis. As a result, the Commission terminated many of the employees who had been assigned to work on the affected programs.

The Texas State Employees Union (the “Union”) then filed suit against the Commission on behalf of the terminated employees, all of whom were members of the Union, complaining that the Commission had unlawfully granted public property— namely office space, computer equipment, and office supplies — to private entities in violation of the Texas Constitution. See Tex. Const, art. Ill, § 51; art. VIII, § 3; art. XVI, § 6(a). The Commission responded by filing a special exception and a plea to the jurisdiction, contending that the cause of action was barred by the doctrine of sovereign immunity and, furthermore, that appellants lacked standing to sue. Several amended petitions followed, as did further answers and pleas to the jurisdiction. Following the filing of appellants’ fourth amended petition, the trial court dismissed the Union as a party, finding that the Union lacked standing to bring suit on behalf of the employees. Appellants thereafter amended their pleadings to substitute four terminated employees in place of the Union.

By the time appellants filed their sixth and final amended petition, the suit had been expanded to include three causes of action; appellants had also added as defendants the Council on Workforce & Economic Competitiveness, the Governor, and the Gulf Coast Local Workforce Development Board (“Gulf Coast”) and the Coastal Bend Workforce Development Board (“Coastal Bend”) (collectively, the “local development boards”). Appellants’ pleadings alleged that: (1) the Commission had violated, and would continue to violate, the Texas Constitution by transferring state property to private entities without restricting the use of the property to state, rather than private, purposes; (2) the Commission had deprived appellants of a property interest in their continued employment, as well as their interest in participating in the State’s retirement system, without due course of law; and (3) the local development boards had breached their contracts with the Commission by failing to provide appellants, the intended beneficiaries of the contracts, with hiring preferences. With respect to all three claims, appellants sought declaratory and injunctive relief as their sole remedy.

The Commission and the local development boards responded once again by filing pleas to the jurisdiction, arguing that each of appellants’ claims was barred by sovereign immunity, a lack of standing, or both. After considering the pleadings and arguments of counsel, the trial court granted the Commission’s plea to the jurisdiction and dismissed all of appellants’ claims with prejudice. Appellants now appeal the district court’s judgment in ten issues, arguing that the trial court erred in dismissing their suit because neither a lack of standing nor sovereign immunity deprived the trial court of jurisdiction over their causes of action.

PLEA TO THE JURISDICTION

A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of a specific cause of action. See Fountain Parkway, Ltd. v. Tarrant Appraisal Dist., 920 S.W.2d 799, 803 (Tex.App. — Fort Worth 1996, writ denied); Dolenz v. Texas State Bd. of Med. Exam’rs, 899 S.W.2d 809, 811 (Tex.App.— Austin 1995, no writ). The plea alleges that there are incurable jurisdictional defects visible on the face of the plaintiffs pleadings, taking the pleadings’ allegations as true. See Bybee v. Fireman’s Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960); Firemen’s Ins. Co. v. Board of Regents of the Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App. — Austin 1995, writ denied). The truth of the plaintiffs allegations is at issue only if the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court. See Curbo v. State, 998 S.W.2d 337, 341 (Tex.App. — Austin 1999, no pet.); Flowers v. Lavaca County Appraisal Dist., 766 S.W.2d 825, 827 (Tex. App. — Corpus Christi 1989, writ denied); cf. Bernard Hanyard Enter. v. McBeath, 663 S.W.2d 639, 642 (Tex.App. — Austin 1983, writ ref d n.r.e.). Therefore, unless fraud is pleaded and proven, dismissing a cause of action for lack of subject-matter jurisdiction is proper only when incurable jurisdictional defects are shown on the face of plaintiffs pleadings, thus rendering it impossible for the plaintiffs petition to confer jurisdiction on the trial court. See Curbo, 998 S.W.2d at 341; Dolenz, 899 S.W.2d at 811; Flowers, 766 S.W.2d at 827.

When reviewing a trial-court order dismissing, a cause for want of jurisdiction, we are to “construe the pleadings in favor of the plaintiff and look to the pleader’s intent.” Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993); Pearce v. City of Round Rock, 992 S.W.2d 668, 671 (Tex.App.— Austin 1999, pet. denied). Because the question of subject-matter jurisdiction is a legal question, we review de novo a trial court’s ruling on a plea to the jurisdiction. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); Firemen’s Ins. Co., 909 S.W.2d at 542.

WRONGFUL TERMINATION

We first address appellants’ claim for wrongful termination of employment and decide whether the doctrine of sovereign immunity deprived the trial court of jurisdiction to entertain this claim. Rather than seeking dismissal of this claim on the basis of sovereign immunity through a motion for summary judgment, the Commission sought a dismissal in a plea to the jurisdiction. We observe that, had the bar of sovereign immunity been presented in conjunction with a motion for summary judgment, both parties would have had the opportunity to present summary-judgment evidence, such as the written employment policies that appellants allege establish their right to continued employment. See Tex.R. Civ. P. 166a. The trial court could then have made an informed decision on the merits. Here, the Commission instead chose to make this challenge through a plea to the jurisdiction. The trial court was thus obliged, as are we, to take the pleadings as true and construe the pleadings liberally in favor of conferring jurisdiction. See Texas Air Control Bd., 852 S.W.2d at 446; Curbo, 998 S.W.2d at 341.

Appellants alleged in their pleadings that they enjoyed a “protected expectancy of continued employment as state employees” based upon the “written policies and practices of the Commission,” and that by terminating them, the Commission unlawfully deprived appellants of this property right “without due course of law.” Appellants pleaded in the alternative that they held a property right in their continued participation in the State’s retirement system.

In support of its plea to the jurisdiction, the Commission did not allege that these pleadings were fraudulently made for the purpose of conferring jurisdiction upon the trial court. Nor did it specially except to the claim on grounds that the pleadings were deficient. Rather, the Commission argued that appellants had no vested rights in either their employment or the State’s retirement system because they were at-will employees as a matter of law. The Commission reasoned that appellants therefore possessed no constitutionally protected property right that would permit them to sue the Commission absent a waiver of sovereign immunity.

The Commission is correct that Texas is an “employment-at-will” state where employment for an indefinite term may be terminated at will and without cause by either party. See Winters v. Houston Chronicle Publ’g. Co., 795 S.W.2d 723, 724 (Tex.1990); East Line & Red River R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888); Cote v. Rivera, 894 S.W.2d 536, 539 (Tex.App. — Austin 1995, no writ). Nevertheless, written material such as an employee handbook or personnel manual may in some circumstances alter an employee’s at-will status if the material contains language that specifically and expressly limits the relationship and curtails the employer’s right to terminate the employee. See Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 826 (Tex. App. — Austin 1989, writ denied); Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 406 (Tex.App. — Beaumont 1987, writ ref d n.r.e.).

Here, appellants’ pleadings allege that by its written policies, the Commission altered the employment relationship so as to create a “protected expectancy of continued employment.” Taking these pleadings as true and construing them liberally in favor of conferring jurisdiction, we perceive no basis for the trial court’s finding that sovereign immunity bars appellants’ claim.

It is well settled that no waiver of sovereign immunity is necessary before one may sue the State for the taking of a vested property right without due course of law. See Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex.1967); Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 118 (Tex.App. — Austin 1997, writ denied); Ho v. University of Tex. at Arlington, 984 S.W.2d 672, 682 (Tex.App.- — Amarillo 1998, pet.denied). Assuming, as we must, that the Commission’s written policies did create a protected expectancy of continued employment as alleged and that appellants’ at-will status thereby was altered, appellants had a constitutionally protected property interest in their jobs and were entitled to seek redress under the due-course-of-law provision of the Texas Constitution. See Tex. Const, art. I, § 19. Constitutional takings claims such as this may be asserted against the State without regard to the doctrine of sovereign immunity. See Stone, 417 S.W.2d at 385-86; Bohannan, 942 S.W.2d at 118; Ho, 984 S.W.2d at 682. And since appellants requested equitable relief in the form of an order reinstating them to their jobs, rather than monetary damages, the remedy sought was a permissible one. See Texas S. Univ. v. Araserve Campus Dining Servs., 981 S.W.2d 929, 935 (Tex.App. — Houston [1st Dist.] 1998, pet. denied); Alcorn v. Vaksman, 877 S.W.2d 390, 404 (Tex.App. — Houston [1st Dist.] 1994, writ denied) (unlike suits for monetary damages, suits against State seeking equitable remedies for constitutional violations are allowed without State’s consent).

In ruling on the Commission’s plea to the jurisdiction, the trial court was obliged to accept appellants’ pleadings as true, construe them liberally in appellants’ favor, and dismiss them only if they affirmatively established that the trial court lacked jurisdiction to hear the complaint. See Texas Air Control Bd., 852 S.W.2d at 446; Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.1989); Bush v. Texas Dep’t of Protective & Reg. Servs., 983 S.W.2d 366, 368 (Tex.App. — Fort Worth 1998, pet. denied). Taking appellants’ pleadings as true, we find no basis upon which to conclude that the court lacked jurisdiction to hear their claim for wrongful termination. Consequently, we hold that the trial court erred in dismissing appellants’ claim for lack of jurisdiction.

We do not, of course, purport to speak to the merits of appellants’ allegations, which we must take as true on appeal from a dismissal order. We offer no opinion on whether sovereign immunity may in fact ultimately bar appellants’ claim. This will depend upon the facts as they are developed. We merely hold that in light of appellants’ pleadings and the liberal test that must be applied in ruling on pleas to the jurisdiction, the trial court erred in dismissing these claims on this basis. Accordingly, we sustain appellants’ issue regarding their wrongful-termination claim.

REMAINING CAUSES OF ACTION

Although our sustaining of appellants’ wrongful-termination issue necessitates a reversal and remand of this entire cause, we nevertheless believe it is prudent and serves the interests of judicial economy to address briefly the two remaining causes of action that the court also dismissed for lack of jurisdiction, as well as the dismissal of the Union for lack of standing. Third-Party Beneficiary Claim

First, we believe that the trial court’s dismissal of appellants’ third-party beneficiary claim also was in error. Appellants alleged that they were the intended beneficiaries of the contracts between the Commission and the local development boards and that they were thus entitled to sue Gulf Coast and Coastal Bend for the alleged breach. In dismissing this claim for lack of jurisdiction, the trial court cited as its basis both sovereign immunity and appellants’ lack of standing. It Is well settled that a person who is not a party to a contract may nevertheless have standing to enforce the contract if it was made for that person’s benefit. See Paragon Sales Co., Inc. v. New Hampshire Ins. Co., 774 S.W.2d 659, 661 (Tex.1989); Knox v. Ball, 144 Tex. 402, 191 S.W.2d 17, 23-24 (1945); Barnes v. Wendy’s Int’l, Inc., 857 S.W.2d 728, 730-31 (Tex.App. — Houston [14th Dist.] 1993, no writ); Gonzalez v. City of Mission, 620 S.W.2d 918, 922 (Tex.App.— Corpus Christi 1981, no writ). Because we must take the allegations in appellants’ pleadings as true, we assume appellants are the intended beneficiaries of the contracts and that as such, they stand in the shoes of the Commission and thus have standing to enforce the contracts. See Texas Farmers Ins. Co. v. Gerdes, 880 S.W.2d 215, 218 (Tex.App. — Fort Worth 1994, writ denied) (third-party beneficiary “steps into shoes” of contracting party and assumes same rights and duties as contracting party); Stonewall Ins. Co. v. Modern Exploration, Inc., 757 S.W.2d 432, 434-35 (Tex.App. — Dallas 1988, no writ) (third-party beneficiary “steps into shoes” of contracting party and is subject to all provisions of contract); Texas Pac. Indem. Co. v. Atlantic Richfield Co., 846 S.W.2d 580, 583 (Tex.App. — Houston [14th Dist.] 1993, writ denied) (third-party beneficiary “steps into shoes” of named insured and is bound by same terms).

Assuming, as we have already based upon the pleadings, that appellants enjoyed a vested property right in their jobs and, further, that appellants were the intended beneficiaries of the contracts between the Commission and the local development boards, we see no basis on which to conclude that the trial court lacked jurisdiction to hear this claim. Rather than a jurisdictional question that can be determined on the pleadings alone, the parties’ disagreement over the nature of appellants’ rights, if any, as third-party beneficiaries of the contracts is a dispute that must be decided on the merits. Thus, the trial court possessed jurisdiction to hear this claim.

Unlawful Expenditures of State Funds

In their final cause of action, appellants sought to enjoin the Commission and its executive director from unlawfully expending public funds by transferring state property to the local development boards without requiring that the property be used solely for state, rather than private, purposes. Appellants alleged that this transfer violated the Texas Constitution insofar as it permitted the private entities to employ state property for private use. See Tex. Const art. Ill, § 51 (“The Legislature shall have no power to make any grant ... of public moneys to any individual -”); art. VIII, § 3 (“Taxes shall be levied and collected by general laws and for public purposes only.”); art. XVI, § 6(a) (“No appropriation for private or individual purposes shall be made, unless authorized by this Constitution.”).

In arguing for dismissal, the Commission and its executive director contended that only the state attorney general has standing to institute legal action to redress alleged mismanagement of state property under section 403.276 of the Government Code. See Tex. Gov’t Code Ann. § 403.276(c), (d) (West 1998). This argument, however, does not end our inquiry. Appellants do not seek redress under the statutory provision the Commission relies upon. Rather, as both taxpayers and state employees, they seek to enjoin the Commission from expending funds in violation of the Texas Constitution. See Tex. Const, art. Ill, § 51; art. VIII, § 3; art. XVI, § 6(a). Although taxpayers generally cannot maintain suits for the recovery of public funds already expended, they do have standing to bring a suit in equity to enjoin prospective illegal expenditures of public funds. See Osborne v. Keith, 142 Tex. 262, 177 S.W.2d 198, 200 (1944); Zimmelman v. Harris County, 819 S.W.2d 178, 182 (Tex.App. — Houston [1st Dist.] 1991, no writ); Navarro Auto-Park, Inc. v. City of San Antonio, 574 S.W.2d 582, 583 (Tex.Civ.App. — San Antonio 1978, writ refd n.r.e.); Kordus v. City of Garland, 561 S.W.2d 260, 262 (Tex.Civ. App.- — Tyler 1978, writ refd n.r.e.); First Nat’l Bank v. Prudential Ins. Co., 551 S.W.2d 112, 113 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ refd n.r.e.). To establish standing in such a suit, the plaintiff must plead that: (1) he or she is a taxpayer; (2) there exists an agreement under which public funds are to be expended in the future; and (3) the agreement or contract violates the Constitution or is otherwise illegal. See Osborne, 177 S.W.2d at 200; Kordus, 561 S.W.2d at 262. Here, appellants, as taxpayers and state employees, alleged that: (1) they are taxpayers of the State; (2) private service providers will receive unqualified grants of state funds and property under the terms of the contracts between the Commission and the local development boards; and (3) the contract and the transfers thereunder violate specific provisions of the Texas Constitution. Taking these allegations as true, these individuals have standing to sue.

Additionally, the Commission is incorrect in its last argument that the doctrine of sovereign immunity precludes appellants’ suit to enjoin the unlawful expenditure of state funds. Suits challenging an agency’s action as being outside the scope of its delegated authority are not suits against the State requiring legislative permission to sue. See Texas Dep’t of Pub. Safety v. Moore, 985 S.W.2d 149, 154 (Tex.App. — Austin 1998, no pet.); Public Util. Comm’n v. City of Austin, 728 S.W.2d 907, 911 (Tex.App. — Austin 1987, writ ref'd n.r.e.). Furthermore, suits to enforce state constitutional rights do not require legislative waiver of sovereign immunity. See Brazosport Sav. & Loan Ass’n v. American Sav. & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747, 750 (1961); Lopez v. Public Util. Comm’n, 816 S.W.2d 776, 783 (Tex.App. — Austin 1991, writ denied). Because appellants sought to enjoin the Commission from acting outside of its constitutional and statutory authority by making unrestricted transfers of state property to private entities, no explicit waiver by the State was necessary. Consequently, sovereign immunity does not deprive the trial court of jurisdiction over this claim.

Standing of the Union

Finally, the trial court dismissed the Union on the basis of a lack of standing. Just as the individual employees have standing to sue, we conclude that the Union has standing to sue on behalf of its members, those same employees. An association has standing to sue on behalf of its members when: (1) its members would otherwise have standing to sue in then-own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See Texas Air Control Bd., 852 S.W.2d at 447; Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766, 780 (Tex. App. — Austin 1999, pet. filed). We have already concluded that the Union’s members have standing to sue in their own right. We also consider the Union’s goal of enjoining any further unconstitutional transfers of state property to be directly related to the Union’s stated purpose of protecting the interests of both taxpayers and state employees. Finally, the nature of the claim and the equitable relief requested do not require the participation of the Union’s members on an individual basis. See Texas Air Control Bd., 852 S.W.2d at 448 (where an association “seeks only prospective relief, raises only issues of law, and need not prove the individual circumstances of its members to obtain that relief,” third element of associational standing test is met). Thus, the trial court erred in dismissing the Union as a plaintiff for lack of standing.

CONCLUSION

Having sustained appellants’ issues challenging the dismissal of their claims, we reverse the trial court’s order granting the Commission’s plea to the jurisdiction and remand this cause for further proceedings not inconsistent with this opinion.

      . Appellees are the Texas Workforce Commission; the Council on Workforce and Economic Competitiveness; Michael Sheridan, Individually and in his Official Capacity and his successors in office; George Bush in his Official Capacity as Governor of the State of Texas and his successors in office; the Gulf Coast Workforce Development Board; and the Coastal Bend Workforce Development Board. For convenience, we will refer to these parties collectively as the "Commission,” except where it is necessary to distinguish among them for clarity.

      . The Legislature authorized the Commission to form these development boards for the purpose of planning and overseeing the delivery of workforce training services and to evaluate workforce development in the local area. See Workforce and Economic Competitiveness Act, Tex. Gov’t Code Ann. §§ 2308.253, .256 (West Supp.2000). The parties agree that these boards are quasi-governmental entities that may be afforded the protections of sovereign immunity.

      . Gulf Coast and Coastal Bend are two of the local development boards with which the Commission contracted to transfer the administration of these programs. One of the terms of the contract required the local development boards to ensure that employees previously assigned to work on the affected programs at the Commission would be granted preference in hiring by the local service providers. Despite this provision, none of the appellants were offered jobs.

      . Article I, section 19 of the Texas Constitution provides: "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” It is the United States Constitution that uses the term "due process of law” when speaking of a deprivation of one’s interest in life, liberty, or property. U.S. Const. amend. XIV, § 1. The textual difference between "due course of law” and "due process of law” is without meaningful distinction. See United States Gov’t v. Marks, 949 S.W.2d 320, 326 (Tex.1997); University of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). Consequently, Texas has traditionally followed federal due process interpretations when applying its due course of law clause. See Than, 901 S.W.2d at 929.

      . If the Commission had specially excepted to this cause of action on this basis, appellants nevertheless would have been entitled to an opportunity to amend their pleadings in order to cure any defect or deficiency. See Pearce v. City of Round Rock, 992 S.W.2d, 668, 672 (Tex.App. — Austin 1999, pet. denied); Washington v. Fort Bend I.S.D., 892 S.W.2d 156, 159 (Tex.App. — Houston [14th Dist.] 1994, writ denied).


source: Caselaw Access Project

author: MICHOL O’CONNOR, Justice.

license: Public Domain

text:
    Dana Dwayne WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00716-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 2, 2000.
    Rehearing Overruled May 5, 2000.

      Shawna L. Reagin, Houston, for Appellant.
    Alan Curry, John B. Holmes, for State.
    Panel consists of Justices O’CONNOR, HEDGES, and PRICE.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MICHOL O’CONNOR, Justice.

Dana Dwayne Washington, the appellant, was charged with aggravated sexual assault, with two enhancement paragraphs. The appellant pled not guilty. A jury found the appellant guilty as charged, and found both enhancement paragraphs true. The jury assessed punishment at 36 years confinement.

In two points of error, the appellant claims the trial court erred in refusing to include the lesser offense of assault in the jury charge, and by overruling the appellant’s objection to the State’s argument that a defense witness offered to pay the complainant to drop the charges. We reverse and remand.

FACTS

According to the complainant, she and the appellant had seen each other in the community on various occasions. On the evening of June 22,1998, the appellant saw the complainant on the side of the road, and offered her a ride. The appellant drove to a liquor store. The complainant got beer for herself and gin for the appellant. The appellant’s money was used for the purchase. While the appellant drove with the complainant, the appellant smoked from a crack pipe. The complainant asked to be taken home.

The complainant testified the appellant, however, drove to his own residence. The appellant claimed he needed to check on something in his house. Initially, the complainant decided to wait in the car, but she eventually decided to go inside. They went inside and sat on the couch. The complainant called her sister to let her know she was okay. The appellant and the complainant drank gin. The appellant filled the complainant’s glass every time she took a drink.

The complainant testified the appellant suddenly hit her across the forehead with his fist and exclaimed, “Bitch, you better do what I say!” The appellant continued to strike the complainant, then removed her clothes. The complainant attempted to resist, but was bleeding badly. The appellant gave the complainant a towel to wipe up the blood.

The complainant testified the appellant dragged her out of the house to a smaller residence in the back area. The appellant put his penis in the appellant’s vagina. The appellant told her, “Bitch, if you don’t do what I say ...” Every time the complainant struggled, the appellant struck her in the face. The appellant poked the complainant all over her body with a knife. The appellant told the complainant that if she tried to escape he would shoot her or stab her in the back. After intercourse, the appellant forced the complainant to give him oral sex. Afterward, the appellant raised the knife as if to stab the complainant. The complainant begged for her life.

The complainant was not able to get away until the next morning, and she went to a hospital later that day.

Improper Closing Argument

The appellant claims the trial court erred in overruling his objection to the assistant district attorney’s (ADA’s) argument that a defense witness tried to pay the complainant to dismiss the case. The appellant asserts that the ADA’s use of closing argument to accuse a defense witness of attempting to pay off the complainant was improper and rose to the level of reversible error.

The State makes two arguments in response: first, the appellant waived the right to appeal the first portion of the jury argument because he did not obtain a ruling, and second, that the preserved part of the argument was merely a challenge to the credibility of a defense witness.

The following transpired during the State’s final argument to the jury at the guilt-innocence stage:

ADA: What else does [the appellant’s girlfriend] have to say?
Well, in October of 1998, she dresses in a suit or a dress, something very nice, and goes over to [the complainant’s] house; and her dad just happens to be walking outside with the medical records, completely unsolicited, if you will. He walks out to the car with [the complainant’s] medical records and is going to give them to [the appellant’s girlfriend]? She never told them who she was, but she’s there, dressed very nicely. She’s in a car. Obviously, there’s been some conversations about medical records, because [the complainant’s father] has the medical records there. So she talks to [the complainant].
Well, who do you think [the complainant] thought she was? She thought she was a D.A.
Defense: Objection, Your Honor.
That’s outside the record.
ADA: You can infer that, ladies and gentlemen.
The Court: Stay within the record. Logical inferences are all right, but stay within the record.
ADA: Do you know that this victim of rape, who is sitting there talking to the rapist’s girlfriend, could have given her the time of day? Give me a break. She takes her to Burger King and buys her some food; is nice; never says she’s a mediator. You’re a rape victim— Defense: Objection, Your Honor. She arguing outside the record.
The Court: Overruled.
ADA: She’s a rape victim and is talking to a mediator. [The complainant], bless her heart, is not of super intelligence. Think of what she was thinking and think of the intent on the part of [the appellant’s girlfriend]. You can’t believe a word she says. She’s over there.
What else does she do? She says. “I’ll give you a hundred dollars if you’ll dismiss the case.”
Defense: Objection, Your Honor.
That’s arguing outside the record. She denied that.
The Court: That’s overruled.
ADA: You can’t believe anything that lady says. I mean think about what she was trying to do in a rape case, on behalf of this man right here.

Proper jury argument is delineated into four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responsive arguments; and (4) pleas for law enforcement. McFarland v. State, 989 S.W.2d 749, 751 (Tex.Crim.App.1999); Borjan v. State, 787 S.W.2d 53, 55 (Tex.Crim.App.1990); Bias v. State, 937 S.W.2d 141, 143 (Tex.App.— Houston [1st Dist.] 1997, no pet.). Appellate courts should not hesitate to reverse when it appears the State has departed from one of these areas in argument and has engaged in conduct calculated to deny the accused a fair and impartial trial. Wilson v. State, 938 S.W.2d 57, 59 (Tex.Crim. App.1996). The State must confíne its jury argument concerning the defendant’s guilt to statements based upon properly admitted evidence. Campbell v. State, 610 S.W.2d 754, 757 (Tex.Crim.App.1980).

If a jury argument exceeds the bounds of proper argument, it is not reversible error, unless, in the light of the record as a whole, the argument is extreme, manifestly improper, violative of a mandatory statute, or injects into the trial new facts harmful to the accused. McKay v. State, 707 S.W.2d 23, 38 (Tex.Crim.App. 1985). A prosecutor may strike hard blows, but not foul ones. Harris v. State, 996 S.W.2d 232, 237 (Tex.App. — Houston [14th Dist.] 1999, no pet.).

With regard to the first portion of the argument about which the appellant complains, error was not preserved because defense counsel did not get an adverse ruling from the trial court in response to her objection. Cook v. State, 741 S.W.2d 928, 939 (Tex.Crim.App.1987); Rogers v. State, 653 S.W.2d 122, 127 (Tex. App. — Houston [1st Dist.] 1983, pet. ref'd). When the court responded to the objection with the comment “stay within the record,” the court did not rule on the objection.

As to the rest of the argument about which the appellant complains, the State claims the argument was reasonable because the accusations were inferences that could be drawn from the record and the argument went to the credibility of the a defense witness.

On cross-examination, the appellant’s girlfriend stated that: she got the complainant’s address from the appellant’s former attorney; she went to the complainant’s house unannounced; though she did not work, she dressed in very nice clothes for the visit; she did not inform the complainant of her relationship with the appellant; she asked to look at the medical records; she tried to “obtain” the medical records; she never gave the complainant her full name; she took the complainant to Burger King, and purchased her meal; and she told the complainant she was a “mediator for both families.” She did, however, deny offering to pay the complainant 100 dollars to drop the charges.

Even considering the suspicious circumstances surrounding the entire “mediation visit,” we find that the argument injected into the trial new facts harmful to the appellant. The ADA’s argument that the defense witness told the complainant, “I’ll give you a hundred dollars if you’ll dismiss the case,” (when there is no such evidence in the record) does not fall within any of the acceptable categories of jury argument established in Borjan. As a result, the jury argument by the ADA was improper. We must determine if the error is harmless.

Harmless Error Analysis

Under Texas Rule of Appellate Procedure 44.2, the court of appeals may reverse a conviction for a non-constitutional error only if it determines that the error affects a substantial right of the defendant. Tex.R.App. P. 44.2(b). Improper prosecutorial comments are non-constitutional errors, but may affect the substantial rights of the defendant. Reed v. State, 991 S.W.2d 354, 364 (Tex.App. — Corpus Christi 1999, pet. refd). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.App.1997).

A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). To perform a harmless error analysis on a closing argument, an appellate court should consider the following factors: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) steps taken to cure the misconduct (the capability of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosley v. State, 983 S.W.2d 249, 259-60 (Tex.Crim.App. 1998).

Severity of the Misconduct

Although the complainant was available to substantiate the allegations made by the ADA in the closing argument, the State did not bring the evidence in through her during it’s case-in-chief or on rebuttal. Additionally, an argument concerning a witness’ credibility cannot assert as fact something that was repeatedly denied on cross-examination. The ADA knew any sort of reference to the girlfriend’s alleged attempt to pay the complainant was improper because it was flatly denied on cross-examination and the statement had no substantiation in the record.

The affect of the ADA’s argument was to ask the jury why the appellant’s girlfriend would try to “pay off’ the complainant if the appellant was not guilty. We find the severity of the ADA’s argument satisfies the first element.

Steps Taken to Cure the Misconduct

The trial court did not cure the misconduct. Before overruling the objection to the ADA’s comments, the trial court stated, “Logical inferences are all right, but stay within the record.” Then, when the ADA again argued outside the record, the trial court overruled the appellant’s objections. By overruling timely and appropriate objections, the trial court put “the stamp of judicial approval” on the improper argument, thus magnifying the possibility for harm. Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App.1986). Additionally, this error did not occur in the middle of trial where any harmful effect may have been attenuated. Rather, it took place immediately before jury deliberations. We find the second factor in the appellant’s favor.

Certainty of Conviction at the Close of Evidence

The State presented testimony from the complainant, three police officers and a serologist from the Houston Police Department Crime Laboratory. The only direct evidence of aggravated sexual assault came through the complainant’s testimony.

Officer Blades, who responded to the call, testified that he spoke with the complainant, and she was beaten about the face, neck, and back. He went to the appellant’s house, but the appellant was not there. The complainant gave the officer her blue jeans from the night before and a t-shirt she picked up off the appellant’s floor as she left. The complainant told the officer the appellant wore the shirt the night before.

Officer Falco, the criminal investigator who photographed the complainant’s injuries, said the complainant was beaten about the face, neck, and back.

Officer Matthews, a sex crimes investigator, testified he took the complainant’s statement and “she seemed very credible.” Matthews said the complainant identified the appellant in a photo array. The officer did not get a search warrant for the appellant’s house because, in his opinion, too much time had elapsed.

The serologist testified that two pieces of evidence were submitted to the lab, a t-shirt of the appellant’s and a pair of jeans worn by the complainant. There were six spots of what appeared to be blood on the appellant’s shirt. The serologist did not test the blood on the shirt to determine if it was the complainant’s blood. She also said there was no semen on the jeans or t-shirt.

Dr. Anigbogu, the complainant’s emergency room examining physician, testified for the defense. Dr. Anigbogu said that his examination of the complainant revealed that she smelled of alcohol and he found no evidence of trauma to the vaginal or rectal areas. The complainant told the doctor she was beaten and “repeatedly” raped. The doctor testified the lack of trauma to the vaginal area was inconsistent with the extreme trauma to the face and neck — indicating a violent struggle. The doctor said considering the events as described by the complainant and the apparent violence involved in the struggle, one would expect signs of lesions or trauma to the vaginal and rectal areas.

Jermaine Banks testified that, in July 1998, the complainant told him the appellant did not rape her.

We find that there was no certainty of conviction at the close of evidence.

Conclusion

We have no fair assurance that the improper argument did not influence the jury’s verdict, or had only a slight effect on the jury’s verdict. We conclude that declaring this type of error harmless would lead the State to repeat such tactics. Wilson v. State, 938 S.W.2d 57, 62 (Tex.Crim. App.1996). Certainly it is a “foul blow” when the State argues an incriminating “fact” that a witness has denied and that has no other substantiation in the record. We sustain point of error two.

We reverse and remand to the trial court for further proceedings.

      . Because we are sustaining the appellant’s second point of error, we need not address the first point of error.

      . The complainant’s testimony is set forth under the “Facts” section of this opinion.


text:
    Marvin Demetrice IVEY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-99-00490-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 6, 2000.

      Hattie Sewell Mason, Bellaire, for Appellant.
    Julie Klibert, John B. Holmes, Houston, State.
    Panel consists of Justices O’CONNOR, NUCHIA, and DUGGAN.

      . The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MICHOL O’CONNOR, Justice.

A jury found Marvin Demetrice Ivey, the appellant, guilty of sexual assault and assessed punishment at 7 years imprisonment with a recommendation of community supervision. In one point of error, the appellant claims the conditions of his community supervision are unreasonable. We affirm.

Conditions of Community Supervision

The appellant contends the trial court abused its discretion by imposing probationary conditions that were not reasonable. The conditions imposed on appellant included 180 days in the Hands County Jail; completion of a 90-day boot camp program; entry into the sex offender case load; submission to electronic monitoring; 800 hours of community service; psychological counseling for sex offenders; completion of his GED; registration as a sex offender; submission of a blood sample for DNA testing; addition into the DNA library. Additionally, the appellant could neither contact the complainant nor travel outside of Harris County without prior approval of the court.

At the sentencing hearing, the trial court explained to the appellant the conditions of the community supervision. The explanation was lengthy, and the trial court stressed that the appellant understand each condition. At the end of the sentencing, the trial court asked the appellant, “All right, any questions for me of what’s expected of you?” The appellant responded, “No, ma'am.” The appellant then signed a written version of the conditions. Although both the appellant and his attorney were present at the sentencing hearing, they did not objeet to any of the conditions of the appellant’s community supervision.

The appellant argues that, although he did not object to the conditions at the hearing, he can challenge defects in his sentencing for the first time on appeal.

The State argues error was not preserved. Citing Speth v. State, 6 S.W.3d 530 (Tex.Crim.App.1999), the State claims the appellant may not complain of conditions of community supervision if he made no objection at the trial level. In Speth, the sole issue was whether an appellant may challenge conditions of his community supervision for the first time on appeal. The Court held as follows:

Appellant did not object at trial to the imposition of the conditions. The Court of Appeals erred in holding appellant could complain about the community supervision conditions for the first time on appeal.

Id. at 535.

Here, as in Speth, the appellant did not timely object to the terms of his community supervision. As a result, error was not preserved. Tex.R.App. P. 33.1(a); Teague v. State, 864 S.W.2d 505, 510 (Tex.Crim. App.1993). We overrule point of error one.

We affirm the trial court’s judgment.


author: ' MURRY B. COHEN, Justice.

text:
    In re B.D., Appellant.
    No. 01-99-00437-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 9, 2000.
    Rehearing Overruled April 27, 2000.
    William B. Connolly, Houston, for Appellant.
    Dan McCrory, John B. Holmes, Houston, for Appellee.
    Panel consists of Justices COHEN, HEDGES, and ANDELL.
   OPINION

' MURRY B. COHEN, Justice.

The issue in this case is whether a juvenile defendant who is over 18, and thus not a “child” under the Family Code, is covered by repealed Family Code sections 55.01-02, replaced by current sections 55.11-.19. We hold he is not.

Upon appellant’s stipulation, the trial judge found appellant, a juvenile, had engaged in the delinquent conduct of attempted murder and ordered appellant committed to the Texas Youth Commission (TYC) for a determinate sentence of 10 years. Three years later, upon the State’s motion and after a hearing, the trial judge ordered appellant transferred to the penitentiary to serve the remainder of his sentence. We affirm.

Question of Mental Illness

In issue two, appellant argues the trial judge erred in denying his oral motion to initiate mental-health proceedings.

For the first time during closing arguments, appellant said only:

I think that [appellant] needs to — that he needs to be committed to Rusk or some other state hospital where he can stay for some time where he can have more treatment. I have read this report. I know what they say about him being resistant to treatment, but TDC[J-ID] is not the place to put him at this time.... And I firmly believe that the only place for him is some sort of a mental health institution where he may be able to get his problems addressed. I don’t think TDC[J-ID] is a place where anything is going to be addressed .... I would request that the Court take that into consideration and see what we can do about getting him somewhere where his mental health problems can be addressed more fully.

This was not a motion for anything. There was no request for abatement, no request for an examination to occur before further proceedings on the State’s motion to transfer, and no reference to any of the statutes on which appellant now relies. There was nothing for the trial judge to deny.

We understand appellant also to argue that the trial judge erred in not sua sponte ordering a mental-health examination or services. Specifically, appellant argues the evidence proved he suffered from mental illness as a matter of law, requiring the trial judge to determine the necessity of mental-health services. Appellant relies solely on the italicized portions of the following statutes, which we set out in full:

§ 55.01. Physical or Mental Examination
(a) At any stage of the proceedings under this title, the juvenile court may order a child alleged by petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision to be examined by appropriate experts, including a physician, psychiatrist, or psychologist.
(b) If an examination ordered under Subsection (a) of this section is to determine whether the child is mentally retarded, the examination must consist of a determination of mental retardation and an interdisciplinary team recommendation, as provided by Chapter 593, Health and Safety Code, and shall be conducted at a facility approved or operated by the Texas Department of Mental Health and Mental Retardation or at a community center established in accordance with Chapter 534, Health and Safety Code.
§ 55.02. Child with Mental Illness
(a) The court shall initiate proceedings to order temporary or extended mental health services, as provided in Subchapter C, Chapter 574, Health and Safety Code, for a child alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision if:
(1) on motion by a party or the court it is alleged that the child is mentally ill; or
(2) a child is found or alleged to be unfit to proceed as a result of mental illness under Section 55.04 of this chapter or is found not responsible for the child’s conduct as a result of mental illness under Section 55.05 of this chapter.
(b) Subtitle C, Title 7, Health and Safety Code, governs proceedings for court-ordered mental health services except that the juvenile court shall conduct the proceedings whether or not the juvenile court is also a county court.
(c) If the juvenile court orders mental health services for the child, the child shall be cared for, treated, and released in conformity to Subtitle C, Title 7, Health and Safety Code, except:
(1) a juvenile court order for mental health services of a child automatically expires on the 120th day after the date the child becomes 18 years of age; and
(2) the administrator of a mental health facility shall notify, in writing, the juvenile court that ordered mental health services of the intent to discharge the child at least 10 days prior to discharge.
(d) If the juvenile court orders mental health services for the child, the proceedings under this title then pending in juvenile court shall be stayed.
(e) If the child is discharged from the mental health facility before reaching 18 years of age, the juvenile court may:
(1) dismiss the juvenile court proceedings with prejudice; or
(2) continue with proceedings under this title as though no order of mental health services had been made.
(f) The juvenile court shall transfer all pending proceedings from the juvenile court to a criminal court on the 18th birthday of a child for whom the court has ordered mental health services under this section if:
(1) the child is not discharged or furloughed from the residential care facility before reaching 18 years of age; and
(2) the child is alleged to have engaged in delinquent conduct that included a violation of a penal law listed in Section 53.045.
(g)The juvenile court shall send notification of the transfer of a child under Subsection (f) to the residential care facility. The criminal court shall, within 90 days of the transfer, institute proceedings under Article 46.02, Code of Criminal Procedure.

Tex. Fam.Code Ann. §§ 55.01, 55.02 (Vernon 1996) (emphasis added), repealed, now codified at Tex. Fam.Code Ann. §§ 51.20, 55.11-.19 (Vernon Supp.2000) (effective Sept. 1,1999).

Appellant argues only that evidence showed he was mentally ill, requiring initiation of proceedings under sections 55.01-.02 for mental-health services. He does not contend he was incompetent to proceed in court or insane at the time of his offenses. See id. §§ 55.03-.05, repealed, now codified at Tex. Fam.Code Ann. §§ 55.31-.44 (Vernon Supp.2000) (effective Sept. 1, 1999); compare Tex.Code Crim. P. Ann. art 46.02 (Vernon 1979 & Supp.2000) (incompetency to stand trial).

Appellant was 16 years old when he committed the offense, was adjudged delinquent, and was committed to TYC. However, at the time of the release or transfer hearing from which he appeals, appellant was 19 years old. Both sections 55.01 and 55.02 apply only to a “child,” and appellant was not a “child” at that time.

The Family Code defines “child” as a person who is over 10 years old or under 17 years old or one who is 17 years old or older and under 18 years old, if alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before turning 17. Tex. Fam.Code Ann. § 51.02(2) (Vernon Supp.2000). Thus, sections 55.01 and 55.02 did not apply to appellant on the date of his hearing, April 8, 1999, because on that date, he was not a “child.” Additionally, Family Code section 55.02 expressly provides that any mental health service ordered for a “child” expires automatically 120 days after he turns 18. Tex. Fam.Code Ann. § 55.02(c)(1) (repealed 1999). On April 8, 1999, the date of the hearing, appellant was already 19 years and 79 days old. Thus, the court had no power under these sections to order mental health treatment for him.

We hold that because appellant, was not a “child” under Family Code section 51.02(2), the judge had no duty under Family Code sections 55.01 or 55.02 to initiate mental-health examinations or proceedings.

We overrule issue two.

Notice of Hearing

In issue one, appellant argues the trial judge committed “fundamental error” by allegedly not notifying him of the transfer hearing, as required by Family Code section 54.11:

§ 54.11. Release or Transfer Hearing
(a) On receipt of a referral ... for the transfer to the institutional division of the Texas Department of Criminal Justice of a person committed to the Texas Youth Commission ... the court shall set a time and place for a hearing on the release of the person.
(b) The court shall notify the following of the time and place of the hearing:
(1) the person to be transferred or released under supervision; ...
(c)Except for the person to be transferred or released under supervision and the prosecuting attorney, the failure to notify a person listed in Subsection (b) of this section does not affect the validity of a hearing conducted or determination made under this section if the record in the case reflects that the whereabouts of the persons who did not receive notice were unknown to the court and a reasonable effort was made by the court to locate those persons....
(e) At the hearing, the person to be transferred or released under supervision is entitled to an attorney, to examine all witnesses against him, to present evidence and oral argument, and to previous examination of all reports on and evaluations and examinations of or relating to him that may be used in the hearing....

Tex. Fam.Code Ann. § 54.11 (Vernon 1996) (emphasis added). Appellant concedes he was present at the hearing, but did not object. Nor does he contend he was not notified. His complaint is, “There was no showing in the Reporter’s Record nor any proof contained in the Clerk’s Record that [appellant] was even notified of the time and place of the transfer hearing....”

Assuming without deciding that appellant may raise this complaint for the first time on appeal, we disagree. The transfer hearing was held on April 8, 1999. The State’s motion for transfer hearing requested appellant, his counsel, and TYC, among others, be notified and a bench warrant be issued for appellant. A docket notation indicates a “bench warrant [was] signed for [appellant]” on March 31, 1999. Appellant and his counsel attended, and no one requested a continuance due to insufficient time to prepare. The order transferring appellant to prison recited that “due notice had been issued to all parties.” We presume the regularity of recitations like this in judgments. See Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex.Crim.App. 1985) (op. on reh’g).

In In the Matter of R.G., this Court held the trial judge did not err in overruling the appellant’s objection to its jurisdiction to consider his transfer to TDCJ-ID under section 54.11. 994 S.W.2d 309, 311 (Tex. App. — Houston [1st Dist.] 1999, pet. denied). The appellant had argued the State had to prove he received notice of the hearing, but the record showed (1) the State requested notice be sent to all interested parties, (2) the judge ordered that notice be sent, and (3) all interested parties were present for the hearing. Id. We first held that the trial court had jurisdiction over appellant by virtue of another statute. We then held as follows:

As to appellant’s general complaint about the adequacy of the notice of the hearing, Section 54.11(b) of the Family Code provides: “The court shall notify the following of the time and place of the hearing: (1) the person to be transferred or released under supervision.” The record reflects the following: In its motion for a release and transfer hearing, the State requested that appellant receive “proper notification as required by law”; the trial court ordered that appellant (as well as appellant’s legal custodian, parents, and the mother of the complainant) receive notice of the hearing; all of those parties, plus appellant’s attorney who had agreed to the hearing date, were present at the hearing. We conclude that the record supports the trial court’s finding, set out in its oi’der, that “due notice had been issued on all parties as required by sections 54.11(b) and (d), Texas Family Code.”

Id. at 311-12 (emphasis added; internal citations omitted). Appellant argues R.G. considered only whether the trial court had jurisdiction, which he concedes exists here. However, as the above quotation indicates, the R.G. Court also considered the adequacy of the showing of notice. Although in R.G. the record contained an order that notice be sent, we nonetheless find it controlling here.

Appellant next argues that R.G. was wrongly decided because it did not require the State affirmatively to show he received notice. Appellant cites no authority holding section 54.11 places this burden on the State. Rather, he analogizes to Family Code section 53.06, which provides, “The juvenile court shall direct issuance of a summons to ... the child named in the petition.... ” Tex. Fam.Code Ann. § 53.06 (Vernon 1996). He also relies on the case law interpreting section 53.06, which requires the State affirmatively to show the juvenile received service of summons for jurisdiction to vest in the juvenile court. See In the Matter of D.W.M., 562 S.W.2d 851, 853 (Tex.1978) (holding (1) record must affirmatively show summons with which juvenile was served for jurisdiction to vest in juvenile court and (2) no jurisdiction existed despite juvenile’s attendance because no affirmative showing of service was made); see also Grayless v. State, 567 S.W.2d 216, 219-20 (Tex.Crim.App.1978) (same, when record showed no summons issued, despite juvenile’s attendance).

We distinguish this authority because it concerns service of summons, which neither is a notice of hearing nor implicates subject matter jurisdiction. Appellant concedes the trial court had subject matter jurisdiction. See Tex. Fam.Code Ann. § 51.0411 (Vernon Supp.2000) (“The court retains jurisdiction over a person ... who is referred to the court under Section 54.11 for transfer to [TDCJ-ID] or release under supervision.”). We recognize that the State has the burden to invoke a court’s criminal jurisdiction by presenting an indictment or information; in juvenile matters, it does so by affirmatively showing service, of summons. The concerns underlying invocation of jurisdiction do not exist here.

We overrule issue one.

We affirm the judgment.

      . Tex. Health & Safety Code Ann. §§ 574.031-.037 (Vernon 1992 & Supp.2000).

      . Tex Health & Safety Code Ann. §§ 571.001-577.019 (Vernon 1992 & Supp.2000) ("Texas Mental Health Code”).

      . Tex. Fam.Code Ann. § 53.045(a) (Vernon Supp.2000) (generally, habitual felony conduct; certain violent offenses; some controlled-substance violations that are aggravated or are first-degree felonies; felony injury of children, elderly, or disabled; some criminal solicitation; criminal attempt of certain violent offenses; and arson, if bodily injury or death is suffered).

      . Tex.Code Crim. P. Ann. art 46.02 (Vernon 1979 & Supp.2000) (incompetency to stand trial).

      . Repealed Family Code sections 55.01 and 55.02 — replaced by current sections 55.11 through 55.19 effective September 1, 1999— apply to this cause. See Acts 1999, 76th Leg., R.S., ch. 1477, §§ 14, 39(a), 1999 Tex. Gen. Law 5072, 5090 (amendment applies to conduct occurring on or after act’s effective date). Appellant’s reply brief concedes this. The date of the hearing was April 8, 1999. We have fully quoted the repealed statutes because of their similarity to the statutes that replaced them, sections 55.11, 55.12, 55.15, 55.16, 55.18, and 55.19. For the same reason, we have ordered this opinion published.

      . See Tex. Fam.Code Ann. § 51.0411 (Vernon Supp.2000).

      . Appellant also distinguishes In re G.R., No. 01-98-01142-CV, 1999 WL 351138 (Tex. App. — Houston [1st Dist.] June 3, 1999, no pet.) (not designated for publication), but we may not consider this unpublished opinion. See TexR.App. P. 47.7.

      . Tex. Const, art. V, § 12(b).


author: TIM TAFT, Justice. SAM ROBERTSON, Justice (Retired), FRANK C. PRICE, Justice (Assigned), MICHOL O’CONNOR, Justice,

text:
    David Brian POLASEK, Appellant, v. The STATE of Texas, Appellee.
    No. 01-98-00328-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 16, 2000.
    Rehearing Overruled May 12, 2000.

      Donald W. Rogers, Jr., Houston, for Appellant.
    Calvin Hartmann, John B. Holmes, William Delmore, III, Houston, for State.
    The original panel consisted of Justices O’CONNOR, TAFT and PRICE.

    En banc Court consists of Chief Justice SCHNEIDER and Justices COHEN, MIRABAL, O’CONNOR, WILSON, HEDGES, ANDELL, TAFT, NUCHIA, PRICE, and ROBERTSON.

       The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

       The Honorable Sam Robertson, retired Justice, Court of Appeals, Fourteenth District of Texas at Houston, participating by assignment.

   EN BANC OPINION ON MOTION FOR REHEARING

TIM TAFT, Justice.

On December 2, 1999, a majority of this Court sitting en banc affirmed appellant’s conviction for criminal trespass. Although we deny appellant’s motion for rehearing, we withdraw our original opinion and issue this one in its place.

A jury convicted appellant, David Brian Polasek, of criminal trespass. The trial court sentenced appellant, as a second offender, to 120 days in jail. We determine the validity of a change in the appellate rules, calling for the court reporter to record proceedings unless excused by agreement of the parties, where the predecessor rule and statute required a court reporter to record proceedings only upon request.

As a threshold matter, we call attention to the unusual procedure that required us to utilize two visiting justices to obtain an en banc decision that could have been contrary to the decision of a majority of elected justices on the Court. We note that both of the issues we address arise from substantive changes made in amending the appellate rules. We also address several procedural issues raised in appellant’s motion for rehearing. We affirm.

I. En Banc Procedure

In his motion for rehearing, appellant presents several complaints about the en banc procedure employed by this Court in: (1) denying oral argument; (2) denying notice of en banc consideration of the case; (3) denying notice of the name of the visiting justice appointed as a tie breaker; (4) considering the case en banc before a panel issued an opinion; and (5) continuing the participation of the tie-breaking visiting justice after a tie no longer existed. Appellant also moves to disqualify Justice Sam Robertson, the visiting justice appointed as tie breaker.

A. Denial of Oral Argument

Appellant first claims this Court abused its discretion by refusing to hear oral argument in this case. Appellant relies on rule 39.8 of the Rules of Appellate Procedure, which states, “In its discretion, the court of appeals may decide a case without oral argument if argument would not significantly aid the court in determining the legal and factual issues presented in the appeal.” Tex.R.App. P. 39.8. Appellant argues that oral argument obviously would have been of assistance to resolve a question of first impression as to the validity and requirements of a new rule of appellate procedure. Appellant also points to the resulting disagreement among the members of the en banc court as demonstrating the need for oral argument. Appellant claims he has been deprived of his constitutional rights to due process of law, due course of law, and open courts.

The fallacy of appellant’s arguments is its assumption that the determination of whether to hear oral argument is objective. It is not. A majority of the panel or en banc court determines whether it thinks oral argument would be helpful. Notice is given to the parties accordingly. A party may persist and request reconsideration of the decision to deny oral argument, but ultimately a majority of the panel will decide whether it thinks oral argument would be helpful. On the other hand, even if there is no request for oral argument, or an outright waiver, the court may decide oral argument would be helpful and may order the parties to appear to present it. The purpose of oral argument is to help the court. Therefore, it must be the court that decides what it thinks would be helpful. At any point in the process, the court can always stop and hold oral arguments, if a majority of the court thinks it would be helpful.

Although not mentioned by appellant, it could be argued that an additional reason for not denying oral argument is that the former rule of appellate procedure afforded a right to present oral argument. See former Tex.R.App. P. 75(a) (“Right to Argument. When a case is properly prepared for submission, any party who has filed briefs in accordance with the rules prescribed therefor and who has made a timely request for oral argument under (f) hereof may, upon the call of the case for submission, submit an oral argument to the court.”) (emphasis in original to indicate title of subsection). We point out a crucial distinction between the change in the rule pertaining to oral argument and the other rules we examine below. Contrary to the rules relating to the composition of an en banc court and the presence of a court reporter to record proceedings, the rule pertaining to oral argument does not have its roots in a statute. Therefore, this is an area in which the courts are free to formulate rules of their own making for the benefit of the appellate process without concern for substantively changing a rule that the legislature has made. Thus, there is not the same concern for recognizing the basic principle of separation of powers in the case of a rule originally formulated by the courts, as for a rule with legislative roots that the legislature authorized the courts to enact without changing the substantive rights of the litigants.

Because we view our internal decision whether to grant, deny, or require oral argument as absolutely discretionary and unreviewable, we overrule appellant’s first objection.

B. Denial of Notice of En Banc Consideration

Appellant seizes on language in our original opinion making reference to an opinion “issued” by the Panel. Appellant complains this panel opinion was not filed by the clerk of the court so that appellant would have an opportunity to address it. Appellant also complains that he did not receive notice that the case would be considered en banc. Appellant again claims denial of his constitutional rights to due process, due course of law, and open courts.

Our use of the term “issued” in regard to the panel opinion was erroneous. No panel opinion was ever issued in this case. What happened is that a member of the court requested en banc review before the panel opinion issued. This procedure is authorized by rule 41.2(c) of the Rules of Appellate Procedure, which states, in pertinent part, “A vote to determine whether a case will be heard or reheard en banc need not be taken unless a justice of the court requests a vote.” Tex.R.App. P. 41.2(c). The rules do not require notice to the parties of these internal operations of the court. Any objections to the process can be made, as appellant has in this case, upon issuance of the en banc decision of the court. We do not see how this denies appellant’s rights to due process of law, due course of law, and open courts. We overrule appellant’s second objection.

C. Denial of the Names of Appointed Visiting Justices

Appellant relies on rule 39.9(d) of the Rules of Appellate Procedure to argue that notice must be given to the parties as to the identity of the justices who will hear a case. Appellant extrapolates the rule to argue that it requires notice of the identity of a visiting justice appointed to break a tie. Appellant claims he was deprived of his right to move to disqualify or recuse Justice Robertson in this case, as a result of not being given notice. Appellant relies on Justice O’Connor’s dissenting opinion on rehearing in Benavides v. State, 992 S.W.2d 511 (Tex.App.—Houston [1st Dist.] 1999, pet. refd). Justice O’Connor’s dissenting opinion stated her belief that this Court should have considered issues we address here regarding lack of notice to the parties whenever en banc review is requested internally. Id. at 533-34 (O’Connor, J., dissenting). However, rule 39.9(d) expressly warns that the notice parties receive regarding the identity of the members of the panel to which the case will be argued or submitted is subject to change by the Court. Tex.R.App. P. 39.9(d). Two such changes occurred in this case as a result of a request for en banc review and the necessity of a tie breaker. As in Benavides, and in this case, we can consider any objections to the procedure or motions to recuse or disqualify on motion for rehearing. See Bena-vides, 992 S.W.2d at 533 (O’Connor, J., dissenting). Again, we see no denial of appellant’s constitutional rights in this procedure.

D. Motion to Disqualify Justice Robertson

As an additional part of his third objection, appellant moves to disqualify Justice Robertson pursuant to rule 16.1 of the Rules of Appellate Procedure. Appellant asserts that Justice Robertson is a non-elected justice whose service violates Article V, section 6 of the Texas Constitution, which requires justices of the courts of appeals to be elected by qualified voters of their respective districts at a general election for a term of six years. We note that appellant makes no complaint about Justice Price, who is also a visiting justice in this case. Of course, Justice Price has voted in favor of appellant’s position, while Justice Robertson has not. Appellant’s selectivity in moving to disqualify detracts somewhat from the seriousness of his claim.

Justice Robertson was appointed by the Chief Justice of the Texas Supreme Court pursuant to rule 41.2(b) of the Rules of Appellate Procedure. Tex.R.App. P. 41.2(b). The Texas Legislature has also authorized the Chief Justice of the Texas Supreme Court to assign qualified justices for active service regardless of whether a vacancy exists in the court to which the justice is assigned. Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1998). Appellant makes no constitutional attack on section 74.003(b). Even though many, if not all, of the courts of appeals use visiting justices appointed pursuant to section 74.003(b), there appears to have been no reported case involving a motion for disqualification. We believe that appointment of visiting justices to sit on courts of appeals pursuant to rule 41.2(b) and section 74.003(b) does not violate article V, section 6 of the Texas Constitution. Indeed, the constitutional provision expressly provides that courts of appeals have other officials as may be provided by law. Tex. Const, art. V, § 6 (“The state shall be divided into courts of appeals districts, with each district having a Chief Justice, two or more other Justices, and such other officials as may be provided by law.”). Visiting justices have been provided by law. Accordingly, we overrule appellant’s motion to disqualify Justice Robertson. We also overrule appellant’s third objection.

E. En Banc Review Before Panel Opinion Issued

Appellant argues that en banc review should not have been conducted until after issuance of a panel opinion, relying again on Justice O’Connor’s dissenting opinion in Benavides. We have already decided that our procedure is in compliance with rule 41.2(b) (providing for en banc review upon court vote requested by a justice). Appellant claims that rule 41.1(a) provides support for his position. The pertinent part of rule 41.1(a) states “Unless a court of appeals with more than three justices votes to decide a case en banc, a case must be assigned to a panel of the court consisting of three justices.” Tex.R.App. P. 41.1(a). We do not see how rule 41.1(a) supports appellant’s position. It does not say anything about en banc review occurring only after issuance of a panel opinion. All it says is that, unless the court votes to decide the case en banc, it will be heard by a panel of three justices.

Appellant also argues that rule 41.2(c) of the Rules of Appellate Procedure contemplates en banc review only in extraordinary circumstances or to maintain uniformity in the court’s decisions, stating that en banc consideration is not favored. Tex. R.App. P. 41.2(c). Appellant claims that, because this is a case of first impression, en banc review could not have been granted to obtain uniformity in the court’s decisions. Appellant also asserts that no extraordinary circumstances are shown. We hold that our internal decision to proceed en banc is a matter of absolute discretion that is not reviewable, however, and we reject appellant’s position that en banc review can come only after a panel opinion was issued. We overrule appellant’s fourth objection.

F. Tie-Breaking Justice Should Not Remain After Realignment

Finally, appellant claims that, because rule 41.2(b) only authorizes appointment of a justice to break a tie, the final count showing a six-to-four vote for affirmance eliminated the tie thereby requiring that Justice Robertson be excused. It is true that, after Justice Robertson was appointed, the five-to-five tie changed to six-to-four. However, there is nothing in rule 41.2(b) that requires the tie-breaking justice to be excused under these circumstances. The rule states that the appointment is for the temporarily-assigned justice “to sit with the court of appeals to consider the case.” Tex.R.App. P. 41.2(b). Accordingly, we reject appellant’s final attack on the en banc procedures taken in this case. We overrule appellant’s fifth objection.

II. Constitution of En Banc Court

Appellant is not the only one with a complaint about the procedure in this case. We address a change in the appellate rules that required us to resort to appointment of an eleventh justice, ie., a second visiting justice, to resolve this case.

Under former Texas Rule of Appellate Procedure 79(d), a majority of the membership of the court constituted a quorum: “Where a case is submitted to an en banc court, whether on motion for rehearing or otherwise, a majority of the membership of the court shall constitute a quorum and the concurrence of a majority of the court sitting en banc shall be necessary to a decision.” Former Tex.R.App. P. 79(d) (superseded effective September 1, 1997). Former rule 79(d) tracked section 22.223(b) of the Government Code: “When convened en banc, a majority of the membership of the court constitutes a quorum and the concurrence of a majority of the court sitting en banc is necessary for a decision.” Tex. Gov’t Code Ann. § 22.223(b) (Vernon 1988). Although no case had authoritatively construed the provision, which was enacted in 1985, the practice of this Court had been to include only elected justices of this Court in en banc decisions.

The new rules added a new definition of en banc court: “An en banc court consists of all members of the court who are not disqualified or recused and — if the case was originally argued before or decided by a panel — any members of the panel who are not members of the court but remain eligible for assignment to the court.” Tex. R.App. P. 41.2(a). When en banc review was called for in this case, we employed the new definition of “en banc court” by including the visiting justice from the panel that originally issued the opinion. The vote was five to five, so the presence of the visiting justice triggered the requirement, under both the old and new rule, of asking the Chief Justice of the Supreme Court of Texas to appoint another visiting justice to break the tie. See Tex.R.App. P. 41.2(b). This created the possibility that the two visiting justices could have voted with a minority of four elected justices on this Court to defeat the will of the majority of the elected justices. Such a frustration of the will of the majority of elected justices did not happen in this case, but we point out this potential result of the change of the definition of en banc court for the consideration of the rule-making committee.

We also bring this up for the high courts to consider whether the rule makers have the authority to make substantive changes from an appellate rule previously established by statute. The court of criminal appeals has held that there is no such authority. In Lyon v. State, the court of criminal appeals was faced with the construction of a rule of appellate procedure that appeared to vary from the repealed statutory provision from which it was derived. 872 S.W.2d 732, 735-36 (Tex.Crim. App.1994). Because the legislative delegation of rule-making authority to the court of criminal appeals expressly precluded substantive changes, the court was constrained to interpret the rule so as not to modify the previous statutory provision. Id. Stronger reason exists in this case to adhere to the statute, which has not been repealed.

The result in our case is the same whether the new rule or the old rule (and existing statute) is applied, so the question of the validity of the rule amendment is not ripe for our consideration. Furthermore, it is more appropriate for the high courts to resolve the issue because they have the rule-making authority. We merely emphasize the importance of the issue in light of its ramifications to the important, basic principles of separation of powers and rule of law.

III. Court Reporter’s Duty

In his sole point of error, appellant contends the judgment should be reversed because the trial court violated the mandatory provisions of rule 13.1(a) of the Texas Rules of Appellate Procedure, thereby depriving appellant of a meaningful record on appeal. Even though appellant did not request a court reporter to record the voir dire examination or final arguments, and did not object to the court reporter’s failure to record those portions of the trial, appellant argues the trial court committed fundamental, automatically reversible error by not requiring the court reporter to record the proceedings.

The new rule requires court reporters to make a full record of the proceedings unless excused by agreement of the parties. TexR.App. P. 13.1(a). Appellant acknowledges that the old rule required the court reporter to record proceedings only when requested by the trial court or the attorney for any party. TexR.App. P. 11(a)(1) and (2) (superseded effective September 1, 1997). Appellant even acknowledges an existing government code provision requiring the court reporter to take notes only upon request. See Tex. Gov’t Code Ann. § 52.046(a) (Vernon 1998). What appellant does not mention is that the old rule was also the embodiment of former article 40.09, section 4 of the Code of Criminal Procedure. Former article 40.09, section 4 provided: “At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court’s charge, and final arguments.” The new rule is, thus, not only a change from the previous rule, but a change from the repealed statute from which the rule was derived, and the substantial body of case law applying it. See e.g., Walthall v. State, 594 S.W.2d 74, 81 (Tex.Crim.App.1980). Moreover, the new rule is at odds with an existing statute, section 52.046(a) of the Texas Government Code. Tex. Gov’t Code Ann. § 52.046 (Vernon 1998).

Under these circumstances, we suggest there is a genuine problem with the validity of the new rule. See Lyon, 872 S.W.2d at 735-36 (because legislative delegation of rule-making authority to court of criminal appeals expressly precluded substantive changes, the court was constrained to interpret rule so as not to modify previous statutory provision).

Appellant makes clear that the new rule changes the substantive rights of the litigants by relying upon Marin v. State, which distinguishes between rights implemented only on request and rights which must be must be implemented unless expressly waived. 851 S.W.2d 275, 279 (Tex. Crim.App.1993). The old rule based on the former statute, and still existing in section 52.046(a) of the Texas Government Code, required that the right to a court reporter be implemented on request. Appellant argues that the new rule establishes a right to the court reporter unless waived by the parties. Thus, appellant argues, because he did not waive his right to a court reporter, he may not only raise the lack of a court reporter on appeal, but assert it as automatic reversible error. To accept appellant’s position would change the right to have a court reporter from a right that must be requested to a right that must be expressly waived. We view this as an enlargement of a defendant’s substantive rights, in violation of the mandate that rules not modify the substantive rights of the litigants. Accordingly, we hold that rule 13.1(a) is void.

The proper rule is that stated in section 52.046(a) of the Texas Government Code:

(a) On request, an official court reporter shall:
(1) attend all sessions of the court;
(2) take full shorthand notes of oral testimony offered before the court, including objections made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings;
(3) take full shorthand notes of closing arguments if requested to do so by the attorney of a party to the case, including objections to the arguments, court rulings and remarks on the objections, and exceptions to the rulings; ...

Tex. Gov’t Code Ann. § 52.046(a) (Vernon 1998).

Therefore, we overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.

Chief Justice SCHNEIDER and Justices WILSON, HEDGES and NUCHIA join the en banc opinion.

Justice ROBERTSON, joined by Justice COHEN, concurring.

Justice PRICE, joined by Justices MIRABAL, O’CONNOR, and ANDELL, dissenting.

Justice O’CONNOR dissenting.

Justice ROBERTSON not participating in motion to disqualify.

SAM ROBERTSON, Justice (Retired),

concurring on motion for rehearing.

I concur in the en banc opinion authored by Justice Taft. However, believing that the construction of rule 13 of the Texas Rules of Appellate Procedure is governed by basic and well-established law, I write this brief concurrence to state my views.

In 1939, the legislature gave the Supreme Court of Texas the authority to promulgate rules in civil matters, so long as they did “not abridge, enlarge or modify the substantive rights of any litigant.” See former Tex.Rev.Civ. Stat. Ann. art. 1731a, § 2 (repealed and codified in Tex. Gov’t Code Ann. § 22.004(a) (Vernon 1988)). In Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424 (Tex.1971), the supreme court, faced with a conflict between a rule, promulgated by the supreme court, and a statute, passed by the legislature, stated that “when a rule of the court conflicts with a legislative enactment, the rule must yield.” Id. at 425.

In 1985, the legislature codified the Government Code and included therein as section 22.004 the provisions of article 1731a. Tex. Gov’t Code Ann. § 22.004 (Vernon 1988). In 1987, the legislature enacted, as part of the Government Code, section 22.108. Tex. Gov’t Code Ann. § 22.108 (Vernon 1988). In language almost identical to that of section 22.004, the legislature gave to the Court of Criminal Appeals rulemaking authority relative to “posttrial, appellate and review procedure” in criminal cases. It seems clear to me that the construction of section 22.108 must be consistent with the supreme court’s construction of section 22.004.

The statutes governing court reporters were codified as a part of the Government Code. Section 52.046 provides, in part, that the court reporter, upon request, shall record all proceedings of the cause. Tex. Gov’t Code Ann. § 52.046 (Vernon 1998). Rule 13 of the Texas Rules of Appellate Procedure, as promulgated by the supreme court and the Court of Criminal Appeals, provides the court reporter must “make a full record of the proceedings unless excused by agreement of the parties.” Thus, the question of whether the duty of the court reporter to record the proceedings depends upon a request presents a conflict between the statute and the rule. If the rule is construed so that it is inconsistent with the statute, the rule must fall.

Accordingly, I concur in the judgment of affirmance.

Justice COHEN joins this concurring opinion.

FRANK C. PRICE, Justice (Assigned),

dissenting on motion for rehearing.

On September 1, 1997, rule 13.1 of the amended Texas Rules of Appellate Procedure took effect. It provides in relevant part as follows:

13.1 Duties of Court Reporters and Recorders

The official court reporter or court recorder must:

(a) attend court sessions and make a full record of the proceedings unless excused by agreement of the parties; ....

Tex.R.App. P. 13.1(a). The notes and comments following rule 13.1(a) state:

Paragraph 13.1(a) merges paragraphs (a)(1) and (2) of former Rule 11 and now requires the reporter to make a record of voir dire and closing arguments unless excused by agreement of the parties.

Tex.R.App. P. 13.1, notes & cmts.

Formerly, this issue was controlled by rule 11(a)(1) and (2) (repealed 1997), of the Texas Rules of Appellate Procedure. Former rule 11 provided as follows:

Rule 11. Duties of Court Reporters
(a) The duties of official court reporters shall be performed under supervision of the presiding judge of the court and shall include, but not be limited to:
(1) attending all sessions of court and making a full record of the evidence when requested by the judge or any party to a case, together with all objections to the admissibility of the evidence, the rulings and remarks of the court thereon;
(2) making a full record of jury arguments and voir dire examination when requested to do so by the attorney for any party to a case, together with all objections to such arguments, the rulings and remarks of the court thereon;....

Former Tex.R.App. P. 11(a)(1), (2).

Resolution of the Differences

In analyzing the language of former rule 11 and present rule 13.1(a), I find there is a procedural difference regarding who has the responsibility to insure the presence of the court reporter. Former rule 11 put this burden on the parties, either to request the presence of the reporter and/or object to the reporter’s absence. Rule 13.1(a), on the other hand, places an independent duty on the trial judge to take the initiative to implement the procedure to require the presence of a reporter unless such reporter is excused by agreement of the parties.

The majority mischaracterizes the difference between the old and the new rule as one of substance. They maintain the change enlarges or modifies the substantive rights of a litigant, thus, violating the delegated authority to promulgate rules given to the Court of Criminal Appeals by the legislature. Contrary to the majority’s assertions, the court, by enacting rule 13.1(a), did not create a substantive change from former rule 11. The substantive matter of both rules is a litigant’s right to a court reporter. Rule 18.1(a) merely altered the procedural requisites for providing a court reporter.

It is interesting to note that the majority cites the Court of Criminal Appeals’s decision in Lyon v. State, 872 S.W.2d 732, 735-36 (Tex.Crim.App.1994), as an explanation of the court’s authority to promulgate a comprehensive set of appellate rules in criminal cases and how the legislature expressly provided that these rules could not abridge, enlarge, or modify the substantive rights of a litigant. The majority then turns around and accuses the court of creating rule 13.1(a) in violation of its own decision. Surely the court was aware of Lyon v. State when it enacted rule 13.1(a) and, thus, considered the distinction between former rule 11 and current rule 13.1(a) to be only a procedural variance.

Are we to believe that the Court of Criminal Appeals is going to change the procedural requisites of rule 11 into the more streamlined provisions of rule 13.1(a) and require the same body of case law to control its misapplication on appeal? If that is true, then why change the rule? I cannot imagine the court announcing that it is going to change a rule that will have no effect on our system of jurisprudence.

The language of rule 13.1(a) is clear and unambiguous and should be given its literal meaning. A fair reading of the rule’s plain language gives a right to a litigant that must be implemented by the system unless expressly waived. As such, rule 13.1(a) does not create a right that is subject to forfeiture through procedural default by failing to object or request or utilizing some other method to bring it to the trial court’s attention. Therefore, the failure of the judge, under rule 13.1(a), to insure the presence of a court reporter to make a full and complete record of all trial proceedings is an error that can be urged on appeal whether or not it was first urged in the trial court. Marin v. State, 851 S.W.2d 275, 280 (Tex.Crim.App.1993).

Conclusion

My disagreement with the majority today is the fact they refuse to follow the plain language of the new rule 13.1(a) governing the court reporter’s duty to record proceedings. Thus, I respectfully dissent.

Justices MIRABAL, O’CONNOR, and ANDELL join this dissenting opinion.

MICHOL O’CONNOR, Justice,

dissenting form en banc on motion for rehearing.

I join Justice Price in his dissent from section III, regarding the court reporter’s duty to transcribe the proceedings. I write separately to dissent from section I of the opinion, regarding the composition of the en banc court.

I agree with the appellant in almost all his arguments regarding our en banc procedure and the appointment of the visiting justice in this case. I believe (1) we should have granted the parties oral argument on the en banc case, (2) we should have given the parties notice that we were going to consider the case en banc, (3) we should have given the parties notice of the name of the visiting justice who was appointed as a tie-breaker, (4) we should have issued a panel opinion before considering the case en banc, and (5) we should have excluded the justice appointed to break the tie once there was no longer a tie on the court.

I also agree with the appellant that the appointment of visiting judges violates the Texas Constitution article 5, section 6, which requires the election of judges.

      . Tex.R.App. P. 75(a), 49 Tex. B.J. 580 (Tex. Sup.Ct. and Tex.Crim.App.1986).

      . Tex.R.App. P. 79(d), 49 Tex. B.J. 581 (Tex. Sup.Ct. and Tex.Crim.App.1986).

      . One opinion addressed the provision, but not in a situation involving a visiting justice. See Saenz v. Fidelity & Guar. Ins., 925 S.W.2d 607, 610-12 (Tex.1996).

      .In this case, the rule change conflicts not only with a prior statute, but also with an existing statute.

      . Tex.R.App. P. 11, 49 Tex. B.J. 561 (Tex. Sup. Ct. and Tex.Crim.App. 1986).

      . Act of May 19, 1967, 60th Leg., R.S., ch. 659, § 27, 1967 Tex. Gen. Laws 1732, 1742, repealed by Act of June 14, 1986, 69th Leg., R.S., ch. 685, § 4, 1986 Tex. Gen. Laws 2472, 2473.

      . This variance is aptly addressed at greater length in Justice Robertson’s concurring opinion.

      . Counsel for appellant appears to have taken this very position in his article on the subject of court rule-making authority. See generally Don Rogers, Texas Constitutional Aspects of Court Rulemaking, The Houston Lawyer, Sept./ Oct. 1997.

      . Act of May 15, 1939, 46th Leg., R.S., ch. 25, § 2, 1939 Tex. Gen. Laws 201.

      . Tex.R.App. P. 11, 49 Tex. B.J. 561 (Tex. Sup. Ct. and Tex.Crim.App.1986).