author: LEE ANN DAUPHINOT, Justice. BOB McCOY, Justice,

text:
    ZURICH AMERICAN INSURANCE COMPANY, Appellant v. Lauren GILL, Appellee.
    No. 2-04-284-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 8, 2005.

      Idolina Garcia, Thad D. Spalding and David M. Hymer, Hermes Sargent Bates, L.L.P., Dallas, for Appellant.
    Kirk L. Pittard, F. Leighton Durham, III, Lisa Cherry Pittard, Durham & Pit-tard, LLP, Dallas, for Appellee.
    Panel A: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

I. Introduction

In a single point, Appellant Zurich American Insurance Company appeals the trial court’s summary judgment in favor of Appellee Lauren Gill, affirming that Zurich owes medical benefits to Gill under a workers’ compensation claim. The issue before this court is the interpretation of Texas Labor Code section 409.021(c) regarding the effect of the failure to contest the compensability of an injury. Zurich’s position is that (1) its failure to dispute that Gill had a compensable injury does not mean that it cannot dispute whether she had an injury at all, and (2) this court should render judgment in its favor because it proved to the trial court that no injury occurred as a matter of law. Gill’s position is that (1) by failing to timely dispute compensability, Zurich has waived its ability to contest the occurrence of this injury, and (2) she established that an injury occurred as a matter of law. Because we hold that Gill had an injury and that Zurich could not contest the compens-ability of the injury, we affirm the trial court’s judgment.

II. Background

Gill was an employee of Professional Employer Services from April 2000 until May 2001. Although she suffered from allergy problems since her childhood, in June 2000, she began suffering increased problems of sneezing, headaches, congestion, a sore throat, and a runny nose. After removing ceiling tiles from her office, she took them to a laboratory and discovered that they contained stachybo-trys mold. She was then medically diagnosed with allergic rhinitis and maxillary sinusitis, obtained appropriate medical treatment, and subsequently filed a workers’ compensation claim. Although Zurich, Professional Employer Services’ workers’ compensation insurance carrier, received notice of her claim in May 2001, it failed to respond until January 8, 2002, when it contested the compensability of Gill’s alleged injury.

A contested case hearing was held October 31, 2002. The hearing officer found that Gill sustained injuries that were ordinary diseases of life — specifically, chronic allergic rhinitis and maxillary sinusitis. The hearing officer further found that Gill’s allergic rhinitis and maxillary sinusitis were not injuries in the form of an occupational disease. She further found that although Zurich failed to timely contest compensability, and therefore could not challenge whether the injury was com-pensable, Gill did not timely notify her employer of her injury. Therefore, Zurich was relieved of any liability for the workers’ compensation claim.

Both Zurich and Gill appealed the hearing officer’s decision to the Workers’ Compensation Commission Appeals Panel. The Appeals Panel affirmed the hearing officer’s decision and order in part, holding that because the hearing officer is the sole judge of the weight and credibility of the evidence and, as the finder of fact, resolves the conflicts in the evidence and determines what facts have been established, the hearing officer’s determination that Gill did not sustain an injury in the form of an occupational disease was supported by sufficient evidence and was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Additionally, the Appeals Panel held that the hearing officer’s determination that the date of injury was June 1, 2000 was supported by sufficient evidence and was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust; thus, the hearing officer’s determination that Gill failed to timely notify her employer of her injury was supported by sufficient evidence and was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The Appeals Panel also held that the hearing officer did not err as a matter of law by determining that Zurich waived its right to contest the compensability of the injury by not timely contesting the injury in accordance with the version of section 409.021 of the Labor Code effective at that time. The Appeals Panel also held that the hearing officer did not err as a matter of law by determining that Continental Casualty Company v. Williamson did not apply to this case. The Williamson court held that if a hearing officer determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, then the carrier’s failure to contest compensability cannot create an injury as a matter of a law. But Williamson is limited to situations where there is a determination that the claimant did not have an injury, as opposed to cases like this one where there is an injury or disease that was determined by the hearing officer not to be causally related to the claimant’s employment. Furthermore, the Appeals Panel held that although there was conflicting evidence, the hearing officer’s determination that Gill has not suffered disability was supported by sufficient evidence and was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The Appeals Panel, however, reversed the hearing officer’s decision that Zurich was relieved of liability under section 409.002 because of Gill’s failure to timely notify her employer of her injury pursuant to section 409.001. The Appeals Panel explained that when a carrier loses its right to contest compensability, that loss includes its right to assert a defense under section 409.002 based upon the claimant’s failure to give timely notice of her injury to her employer. Consequently, Zurich was not relieved of liability. Finally, the Appeals Panel rendered the decision that because Zurich waived its right to contest compensability, Gill had a compensable injury as a matter of law.

Zurich then filed suit in district court, appealing the panel’s determinations that, among other things, it had waived the right to contest compensability of the claimed injury by not timely contesting the injury, and thus it was obligated to pay medical benefits for Gill’s medical care. Gill answered and counter-claimed, complaining that the Appeals Panel erred in finding that (1) she did not sustain an injury in the form of an occupational disease and (2) her medical problems were not caused, enhanced, or aggravated by her working conditions. Each party subsequently filed a motion for summary judgment.

The question presented to the trial court, according to Zurich’s motion, was “whether or not Ms. Gill sustained an injury as outlined in the Texas Labor Code.” In her motion for summary judgment, Gill posited the issue as whether Zurich “waived the right to contest compensability of the claimed injury by not timely contesting the injury.” After a hearing and considering the motions, the trial court denied Zurich’s motion and granted summary judgment in favor of Gill, finding that “(1) Zurich has waived the right to contest compensability; (2) thus judgment affirming the decision of the TWCC’s Appeals Panel decision number 023017 is appropriate; [and] (3) Zurich owes medical benefits to Lauren Gill.” This appeal resulted.

III. Analysis

A. Statutes

The goal of statutory construction is to give effect to legislative intent. Unless a statute is ambiguous, we discern that intent from the language of the statute itself. Further, we consider a statute as a whole, not its provisions in isolation. Additionally, an administrative agency’s construction or interpretation of a statute, which the agency is charged with enforcing, is entitled to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute.

In this case, our analysis begins with an examination of the pertinent statutory definitions contained in section 401.011 of the Texas Labor Code:

(26) “Injury” means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.
(34) “Occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational injury.

To be “compensable,” the injury must arise out of and in the scope and course of employment for which compensation is payable.

At issue in this appeal is the meaning of a particular statutory section containing these defined phrases. Section 409.021(c) of the Texas Labor Code states: “If an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.” It is undisputed that Zurich did not contest compensa-bility within the sixty-day period. But Zurich argues that (1) this does not mean that it is not allowed to contest whether there was an underlying injury at all, and (2) if no such injury occurred, it cannot be compensable because nothing arose “in the course and scope of employment for which compensation is payable.” In sum, Zurich argues that there was no injury, therefore there was no “compensable injury” as a matter of law, and so Zurich did not have to comply with section 409.021.

Gill points the court to an additional deadline missed by Zurich contained in former section 409.021(a), applicable to this case, which reads:

An insurance carrier shall initiate compensation under this subtitle promptly. Not later than the seventh day after the date on which an insurance carrier receives notice of an injury, the insurance carrier shall (1) begin the payment of benefits as required by this subtitle or (2) notify the commission and the employee in writing of its refusal to pay and advise the employee of (A) the right to request a benefit review conference and (B) the means to obtain additional information from the commission.

Gill argues that if Zurich’s construction of the statute is correct regarding its being able to contest the occurrence of an injury at any time, then there is no reason for the insurance company to ever respond to a claim, let alone to do so “promptly” as set forth in former section 409.021(a).

B. Case Law

Two cases touching on the issue before this court are discussed by the parties. In Williamson, claimant Claude Williamson alleged that on August 10, 1993, he fell down a staircase at work, which replicated a March 1993 injury. Williamson filed a worker’s compensation claim, but Continental did not respond within the sixty-day time frame. Following the contested case hearing at which Williamson and others testified, the hearing officer entered a Decision and Order, with findings of fact and conclusions of law, including a finding that Williamson willfully intended to injure himself by staging the incident in question but did not sustain an injury. The hearing officer therefore held that, although the insurance carrier had waived its right to dispute the compensability of Williamson’s alleged injury, because Williamson had no injury, he was not entitled to benefits.

The Appeals Panel affirmed the hearing officer’s findings of fact and conclusions of law, but disagreed with the conclusion that because there was a finding of no injury, Williamson was not entitled to benefits. The Appeals Panel instead held that Williamson suffered no injury, but because Continental did not timely contest com-pensability, Williamson’s injury was established as a matter of law.

Continental then appealed the Appeals Panel decision to the trial court. The trial court affirmed the decision, which was again appealed to our sister court in Tyler. The question on appeal was whether an employer’s failure to timely contest compensability, when there is no injury, creates a compensable injury as a matter of law. The Tyler court found that an injury and a compensable injury are two different animals. Continental may have waived its right to contest the compensa-bility of an injury, but it never waived its right to contest the injury itself. The court therefore held that if a hearing officer determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, then the carrier’s failure to contest compensa-bility cannot create an injury as a matter of a law. The appellate court reversed the trial court’s judgment and rendered judgment in favor of the carrier.

Williamson has been held by the Texas Workers’ Compensation Commission Appeals Panel to be limited to situations where there is a determination by the hearing officer that the claimant did not have an injury, that is, no damage or harm to the physical structure of the body, as opposed to cases where there is an injury or disease determined by the hearing officer not to have been causally related to the employment.

The second case discussed by the parties is Continental Casualty Company v. Downs. Mary Downs timely filed a claim for worker’s compensation benefits after her husband’s death, but the carrier, Continental, did not dispute the compensability of her claim until forty-eight days after it received the notice. A hearing officer determined that the heart attack that caused her husband’s death was not com-pensable and that Continental had timely contested compensability, which the Texas Workers’ Compensation Commission Appeals Panel affirmed.

On appeal, the trial court affirmed the Appeals Panel’s decision, but the San Antonio Court of Appeals reversed the trial court and rendered judgment in favor of Downs because Continental had not, within seven days of notice of the claim, notified Downs of its refusal to pay benefits and therefore Continental could not contest compensability. In other words, by failing to meet the seven-day deadline contained in former section 409.021(a), Continental no longer had the sixty days allowed by section 409.021(c) to investigate compensability.

The Texas Supreme Court agreed with this analysis, holding that “[tjherefore, a carrier that has neither initiated benefits nor filed a notice of refusal, has not complied with the [seven-day] statutory requisite, and has failed to trigger the sixty-day period to investigate or deny compensability.” The court went on to observe that

[although the parties and the court of appeals label the consequence for failure to meet the seven-day pay-or-dispute deadline a “waiver,” that is not precisely what happens under the statutory scheme. We are presented not with a question of waiver, but of a deadline (seven days to pay or dispute), and a consequence for failing to meet that deadline (a carrier that does nothing fails to avail itself of the sixty-day period to investigate or deny compensability).

C. Application

Applying the foregoing case law and statutory analysis to this case, we hold that Gill has an injury that is compensable by Zurich. When notified of a claim under the worker’s compensation statute, an insurer operating under the law effective in this case had seven days to either begin paying benefits or notify the commission and the employee of its refusal to pay. By acting on the notice of an injury, the insurance carrier would then afford itself up to sixty days after notice to investigate the claim and contest the compensability of the injury pursuant to Texas Labor Code section 409.021(c). Because Zurich did not act within the seven-day period, let alone within the sixty-day period, it no longer had a right to contest compensability of the injury. This, however, is not disputed by Zurich, who argues that the Williamson case allows it to dispute the occurrence of an injury, although not its compensability.

But again, the Workers’ Compensation Commission Appeals Panel has repeatedly and consistently held that Williamson applies to situations where there is a determination that the claimant did not have an injury, as opposed to cases where there is an injury or disease which was determined by the hearing officer not to be causally related to the claimant’s employment. In Appeal No. 981847, from September 25, 1998, the chief judge of the Appeals Panel wrote as follows:

Similarly, in appeal 981640, supra, where the appeal panel applied the Williamson decision, the hearing officer determined that there was no injury (reflex sympathetic dystrophy) and that determination was supported by the evidence. In the case under review, that was not the situation. Not only did the evidence support the hearing officer’s determination that the claimant sustained an occupational disease, but the fact that the claimant had a dystopia condition was not in dispute; rather, whether it related to her employment, a compensability issue, was the essence of the issue. In other words, the question was not that the claimant did not have an injury or condition at all but whether it was connected to her employment, a compensa-bility matter. We do not read the Williamson case to extend to situations where there is some injury or condition supported by the evidence and the pertinent issue is whether it relates to the employment, a compensability matter. To so extend Williamson would effectively read section 4-09.021(c) out of existence. (Emphasis added).

We agree. Therefore, because the hearing officer found that Gill had an injury, Williamson does not apply to this case. Consequently, Zurich’s sole issue is whether Gill had an “injury.”

Because we are dealing with statutory construction, we must examine the Texas Labor Code’s definition of “injury.” As previously set forth, “injury” is defined as damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm, including an occupational disease.

The statute specifies that the term “occupational disease” does not include “an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.” Because Gill has pointed to no evidence in the record that her rhinitis and maxillary sinusitis were anything other than “ordinary disease[s] of life,” we agree with the Appeals Panel that she has not shown that her condition is an occupational disease.

Therefore, to be an “injury,” Gill’s condition must qualify as damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The question of whether an injury occurred is one of fact. A contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer to resolve the inconsistencies and conflicts in the evidence. This is equally true regarding medical evidence. The trier of fact may believe all, part, or none of the testimony of any witness. An appellate body is not a fact finder, and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. Additionally, when reviewing a hearing officer’s determination of a fact issue, the decision should be reversed only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

The record shows, and Zurich does not contest, that Gill has chronic allergic rhinitis and maxillary sinusitis, which manifested in the form of sneezing, headaches, congestion, a sore throat, and a runny nose. The Appeals Panel recognized and agreed with the hearing officer’s determination that Gill had physical harm or damage to her body due to the chronic allergic rhinitis and maxillary sinusitis. Because Gill’s chronic allergic rhinitis and maxillary sinusitis resulted in the malfunctioning of the physical structure of the body, the agency’s determination that Gill had an injury is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Consequently, we hold that, under the facts of this case, although Gill’s condition was an ordinary disease of life, not incident to a compensable injury or occupational disease, her condition was an “injury” for purposes of section 401.011(26) of the Texas Labor Code. Thus, because Zurich cannot contest the compensability of the injury, it owes medical benefits to Gill. We overrule Zurich’s sole point.

IV. Conclusion

Having held that (1) Gill had an injury, (2) Zurich may not contest the compensa-bility of the injury, and thus (3) Zurich owes medical benefits to Gill, we affirm the trial court’s judgment.

McCOY, J. filed a dissenting opinion.

BOB McCOY, Justice,

dissenting.

I respectfully dissent. I do not believe that the Legislature intended that an “injury” encompass the symptoms of an “ordinary disease of life,” as has been found present here, any more than those from a common cold, a cold sore (a viral infection), or athlete’s foot (a fungal infection).

      . 971 S.W.2d 108 (Tex.App.-Tyler 1998, no pet.).

      . Id. at 110-11.

        . See, e.g., Appeals Panel No. 022274, 2002 WL 31474068, at *2 (Tex. Workers' Comp. Comm'n Oct. 17, 2002); Appeals Panel No. 022027-s, 2002 WL 31474007, at *2 (Tex. Workers’ Comp. Comm’n Sept. 30, 2002); Appeals Panel No. 990223, 1999 WL 202028, at *3 (Tex. Workers’ Comp. Comm’n Mar. 22, 1999); Appeals Panel No. 990135, 1999 WL 163482, at *4 (Tex. Workers' Comp. Comm’n Mar. 10, 1999); Appeals Panel No. 981847, 1998 WL 1012977, at *2 (Tex. Workers’ Comp. Comm’n Sept. 25, 1998).

      . Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002).

      . Id.

      . Id.

      . Broadhurst v. Employees Ret. Sys. of Tex., 83 S.W.3d 320, 323 (Tex.App.-Austin 2002, pet. denied).

      . Tex. Lab.Code § 401.011(26), (34) (Vernon Supp.2004-05).

      . Id. § 401.011(10).

      . Id. § 409.021(c) (Vernon Supp.2004-05).

      . See id.

      . See TIG Premier Ins. Co. v. Pemberton, 127 S.W.3d 270, 272 n. 1 (Tex.App.-Waco 2003, pet. denied).

      . Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1195 (amended 2003) (current version at Tex Lab.Code Ann. § 409.021(a) (Vernon Supp.2004-05)).

      . Williamson, 971 S.W.2d at 109.

      . Id-

        . Id.

      . Id. at 109-110.

      . Id. at 110.

      . Id.

      . Id.

      . Id. at 110-11.

      . Id. at 110.

      . Mat 110-11.

      . Id.

      . Id. at 111.

      . See, e.g., Appeals Panel No. 022274, 2002 WL 31474068, at *2; Appeals Panel No. 022027-s, 2002 WL 31474007, at *2; Appeals Panel No. 990223, 1999 WL 202028, at *3; Appeals Panel No. 990135, 1999 WL 163482, at *4; Appeals Panel No. 981847, 1998 WL 1012977, at *2.

      . 81 S.W.3d at 804-07.

      . Id. at 804.

      . Id.

        .Id.

      . Id.

      . Id. at 806.

      . Id. at 807.

      . Act of May 12, 1993, 73rd Leg. R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1195 (amended 2003).

      . Tex. Lab.Code Ann. § 409.021(c).

      . See Williamson, 971 S.W.2d at 110.

      . See, e.g., Appeals Panel No. 022274, 2002 WL 31474068, at *2; Appeals Panel No. 022027-s, 2002 WL 31474007, at *2; Appeals Panel No. 990223, 1999 WL 202028, at *3; Appeals Panel No. 990135, 1999 WL 163482, at *4; Appeals Panel No. 981847, 1998 WL 1012977, at *2.

      . Appeals Panel No. 981847, 1998 WL 1012977, at *2.

      . See Tex. Lab.Code Ann. § 401.011(26).

      . Id.

      . Id. § 401.011(34).

      . Id. § 401.011(26).

      . Williamson, 971 S.W.2d at 110.

      . Tex. Lab.Code Ann. § 410.165(a) (Vernon 1996); Williamson, 971 S.W.2d at 110.

      . Williamson, 971 S.W.2d at 110.

      . Id.

      . Id.

      . Id.

      . See id.

      . See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 610 (Tex.1999) (holding, with regard to the injury of emotional distress, that "[t]he phrase 'physical structure of the body’ refers to the entire body, and emotional distress may constitute an ‘injury’ when it results in malfunctioning of the physical structure of the body”).

      . See Williamson, 971 S.W.2d at 110; see also Broadhurst, 83 S.W.3d at 322.


source: Caselaw Access Project

author: Opinion by Justice CARTER.

license: Public Domain

text:
    In the Matter of the MARRIAGE OF Archie Morris SAMFORD, Jr., and Rebecca Samford and in the Interest of Archie Morris Samford, III, a Child.
    No. 06-05-00040-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Aug. 25, 2005.
    Decided Sept. 27, 2005.

      William T. Hughey, Law Offices of William T. Hughey, Marshall, for appellant.
    Stephen C. Mahaffey, Sherry L. Mahaf-fey, Mahaffey & Mahaffey, PC, Carthage, for appellee.
    Before MORRISS, C.J., CARTER and CORNELIUS, JJ.

       William J. Cornelius, Chief Justice, Retired, Sitting by Assignment.

   OPINION

Opinion by Justice CARTER.

The marriage of Archie and Rebecca Samford was concluded by a divorce in Panola County, Texas. The Samfords have one son, and much of the controversy surrounding the divorce concerned the conservatorship and possession of the child, as well as property issues. Several temporary hearings were conducted before the presiding judge, Honorable Terry Bailey. Judge Bailey knew the parties and the child. Ultimately, Judge Bailey re-cused from the case without a motion having been filed. The Honorable Paul Banner was assigned to the case and presided over two hearings, including the final divorce hearing. Before the final hearing, the parties and their attorneys conducted a mediation settlement and settled all issues, in writing. The final hearing incorporated the mediated settlement agreement. Rebecca now appeals alleging in one point of error that Judge Bailey erred in “disqualifying/removing himself’ from the proceedings and “violated [Rebecca’s] right and ability to dispose of her divorce and associated issues in a manner that allowed her to use all of her legal remedies-” Additionally, Rebecca argues that Judge Bailey was disqualified and that all orders/rulings and other related matters are void.

We believe the issues are: (1) Was Judge Bailey disqualified from hearing the case? and (2) Did Judge Bailey err in failing to recuse earlier?

Factual and Procedural Background

This divorce was filed November 17, 2003. The first temporary hearing was conducted December 17, 2003. The parents were appointed joint temporary managing conservators and, generally, the time of possession with the child was split equally between the parents. At the conclusion of the lengthy hearing, the following discussion between Judge Bailey and Rebecca occurred:

THE COURT: ... this particular case that child means absolutely too much to me. That child has been a fixture in my life ever since he’s been a fixture in yours. That child means way too much to me.
MRS. SAMFORD: Thank you.
THE COURT: I’m going to do my very best to protect that child.
MRS. SAMFORD: Thank you.
THE COURT: Maybe I — maybe I should not be hearing this case because it’s a situation that this child does mean a whole lot to me.
MRS. SAMFORD: Well, that’s what he needs. That’s what I want for him.

Rebecca filed a motion for further temporary orders February 25, 2004, alleging that the prior order was no longer workable. On June 30, 2004, an agreed temporary order was entered concerning summer possession of the child. On August 20, 2004, Archie filed a motion to modify the temporary orders, and a hearing was conducted September 1, 2004, at which time the attorney for Rebecca notified the court that he had filed a motion to withdraw as counsel. At that hearing, counsel for Rebecca expressed that Rebecca did not feel comfortable with counsel because he and Archie had practiced law in the same small community for some time. Counsel also mentioned that Rebecca would feel more comfortable if another judge could hear the case that “does not have any connection with Mr. Samford.” The court noted there had been several previous hearings conducted, but said, “[I]t’s still discretionary for me whether I want to voluntarily step aside. I’m going to kind of leave that one hanging until the new attorney is involved in the case. If he wants to address that, then I’ll give him— give him time to address it.”

Another temporary hearing was conducted September 30, 2004. No motion to recuse was ever filed, but the trial court stated that it was planning for another judge to take over the case. Thereafter, the case was assigned to the Honorable Paul Banner, who set another temporary hearing and conducted a hearing November 23, 2004, resulting in an order signed January 3, 2005. That order required the parties to participate in mediation in an attempt to settle the case. On January 11, 2005, the parties participated in mediation and entered into a written settlement agreement. Then, on January 25, 2005, the parties and attorneys appeared before Judge Banner and obtained a final decree of divorce incorporating into the final judgment the terms of the mediated settlement agreement.

Analysis

1. Was Judge Bailey disqualified from, hearing the case?

The answer to this question is clearly “no.” This was a divorce proceeding filed by a lawyer practicing in a small community. Apparently in this case, the trial judge was a neighbor of the litigants and not only knew Archie professionally, but also knew the child, who was the subject of the conservatorship action. Judge Bailey expressed that he cared a lot about the child and would do his best to protect him. This is not an unusual situation faced by trial judges in small communities.

A judge is disqualified from sitting on a case as enumerated by Article V, Section 11 of the Texas Constitution. Tex. Const. V, § 11. It provides that: “No judge shall sit in any case wherein the judge may be interested....” The interest of a judge, in order that he or she may be disqualified, must, in general, be a direct pecuniary or property interest in the subject matter of the litigation. A remote or problematic interest, or one merely in the legal question involved, will not suffice. See Palais Royal, Inc. v. Partida, 916 S.W.2d 650, 653 (Tex.Civ.App.-Corpus Christi 1996, orig. proceeding); Narro Warehouse, Inc. v. Kelly, 580 S.W.2d 146, 149 (Tex.App.-Corpus Christi 1975, writ ref'd n.r.e.) (interest must be direct, real, and certain, immediately resulting from the litigation in question); Moody v. City of Univ. Park, 278 S.W.2d 912, 919 (Tex.Civ.App.-Dallas 1955, writ ref'd n.r.e.) (interest necessary to disqualify must be direct or pecuniary interest in subject-matter litigation).

Here, Rebecca argues that, since this case was not primarily one of a financial nature (it involves custody and conserva-torship issues), the term “interest” need not include a pecuniary or property interest. Rebecca argues that Judge Bailey displayed the requisite disqualifying “interest” in the litigation when he expressed that the child meant a lot to him. We disagree.

The law requires that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam.Code Ann. § 153.002 (Vernon 2002). Judge Bailey’s comments merely expressed that he would be vigilant to “protect that child.” That was his duty. Judges should be encouraged to always keep the best interest of the child at the forefront. There is no allegation that Judge Bailey had an interest in the outcome of the case or had an interest in which parent had the most time of access and possession with the child. We have been cited no authority and have found none suggesting that a judge has an improper “interest” in a case when the judge indicates that a child’s best interest is paramount. At the time the judge made these comments, Rebecca agreed with him and thanked the judge. Judge Bailey was not disqualified from hearing the case.

2. Did Judge Bailey err in failing to recuse earlier?

A. Rebecca’s argument is that Judge Bailey erred in failing to recuse himself sooner in the proceedings. The argument is that Judge Bailey’s orders set the tenor for all future rulings by the new trial judge.

The short answer to this issue is that a motion to recuse Judge Bailey was never filed. The attorneys and the judge discussed the issue, and in fact Judge Bailey did recuse himself before the final hearing was conducted. Recusal is governed by the provisions of Tex.R. Civ. P. 18a. The rule provides that, at least ten days before the trial date or other hearing, a party may file a motion stating the grounds why the judge should not sit in the case. Upon such a filing, the judge must either voluntarily recuse or request the presiding judge of the administrative district to assign another judge to hear the recusal motion. The distinguishing feature between disqualification and recusal is that recusal may be waived if not raised by a proper motion. Towers, 858 S.W.2d at 560. A party that fails to follow the Rule 18a procedure waives the right to complain of the judge’s failure to recuse himself or herself. Carson v. Serrano, 96 S.W.3d 697, 698 (Tex.App.-Texarkana 2003, pet. denied); see In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex.1998); Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex.App.-Waco 2002, no pet.). The issue was waived.

B. .Judge Bailey did recuse himself before the final hearing. Numerous temporary hearings were held in this case between November 2003 and August 2004. After the hearing in August, even though no motion to recuse was filed, Judge Bailey voluntarily recused from further hearings and a visiting judge was assigned. Judge Banner presided over the additional hearings, including the final divorce hearing at which time the terms of the mediated settlement were thoroughly presented and the judge entered the judgment on the terms to which the parties had agreed. The matter presented for review in this Court concerns the final judgment entered by Judge Banner, which superseded any temporary orders previously entered. See Ex parte Carroll, 141 Tex. 566, 175 S.W.2d 251, 252 (1943); Morris v. Morris, 654 S.W.2d 789, 791 (Tex.App.-Tyler 1983, no writ). The final judgment even included a provision discharging both parties from any further liabilities or obligations imposed by the temporary order of the court rendered December 17, 2003. Even if Judge Bailey had improperly presided over the temporary hearing (which we do not hold), such conduct would have no impact on the final judgment entered by agreement of the parties and in which Judge Bailey had no participation.

C. Finally, the judgment rendered was in accordance with a mediated settlement agreement entered by the parties and their attorneys. We fail to see how Judge Bailey’s participation in temporary hearings could in any way affect the final judgment rendered by Judge Banner based on a written agreement of the parties. We find no error.

Cross-Point

Archie has alleged by cross-point that Rebecca’s appeal is frivolous and requests that damages and costs be assessed against Rebecca. That issue will be dealt with by a separate order.

We affirm the judgment of the trial court.

      . Rebecca's brief contains a "note” to the Court in eight separate instances arguing that the "dash dash quotation (--) ... appears to reflect that the Court Reporter missed or did not hear testimony or statements is present in an alarming number through out [sic] the entire record of this case.” Each volume of the court reporter’s record has a certificate that the record is a true and correct transcription of the record. Rebecca does not point out any part of the record that she believes to be missing or incorrect. We have no basis to conclude that the record is incomplete or that the court reporter did not properly certify the record. The complained-of signal (--) more than likely is the reporter’s method of indicating a pause or a transition, e.g., "And when I picked him up at school, which is usually about — leave at 2:30.... ”


author: Opinion by Justice ROSS. CARTER, Justice,

text:
    Jimmy R. NEAL, Appellant v. WISCONSIN HARD CHROME, INC., d/b/a Texas Hard Chrome, Inc. and/or Texas Hard Chrome, Inc., Appellee.
    No. 06-05-00049-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 6, 2005.
    Decided Sept. 29, 2005.

      E. Ben Franks, Law Offices of E. Ben Franks, Texarkana, for appellant.
    Brent M. Langdon, Holman & Langdon, LLP, Texarkana, Rick Harrison, Fritz, Byrne, Head & Harrison, LLP, Austin, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Jimmy R. Neal appeals from a summary judgment taken against him in his personal injury lawsuit against Wisconsin Hard Chrome, Inc., d/b/a Texas Hard Chrome, Inc. and/or Texas Hard Chrome, Inc. (Chrome). He alleged that Chrome’s negligence exposed him to heavy metals, chemicals, and other toxic substances, while Chrome asserted that the action was barred because Chrome was a subscriber under the Workers’ Compensation Act, and thus Neal’s exclusive remedy was under the Act. Neal contends that Chrome was not his employer and that Chrome was thus subject to tort liability for its negligence in exposing Neal to deadly toxins.

In a summary judgment case, the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

The issue in this case is whether the summary judgment evidence establishes as a matter of law that Neal was a joint or dual employee of Scot Industries and Chrome. The evidence shows that in 1976 Scot Industries created a business entity identified as Wisconsin Hard Chrome (which was also d/b/a Texas Hard Chrome, Inc.) and that Chrome leased space inside the Scot Industries manufacturing facility and chrome plated items made by Scot for sale. It is undisputed that both Scot Industries and Chrome were subscribers under the Workers’ Compensation Act.

The Act defines “employee” as “each person in the service of another under a contract of hire, whether express or implied, or oral or written.” Tex. Labor Code Ann. § 401.012(a) (Vernon Supp. 2004-2005).

The summary judgment evidence shows:

• Two possible employers are involved.
• Neal sought worker’s compensation benefits through Scot Industries.
• Chrome contracted for the hire of Neal through Scot Industries — which paid for his labor.
• Chrome did not directly pay the salary of any employee.
• In response to requests for admissions, Chrome admitted Neal has never been an employee of Wisconsin Hard Chrome d/b/a Texas Hard Chrome or of Scot Hone Corp.

The Texas Supreme Court recently addressed in Wingfoot Enterprises v. Alvarado the concept of having more than one employer of an employee. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 139-40 (Tex.2003). In that opinion, the court recognized the exclusive remedy provision of the Act as providing that, where a worker is an employee of one entity for some purposes, and of another entity for some purposes, neither the statutory definition of “employer” or “employee” forecloses the possibility that there may be more than one employer. This reasoning undoes a prior line of cases suggesting that, because only one employer could exist, any others were necessarily third parties to the act that caused the injury (and thus liable under common-law remedies). After Wingfoot, it is clear that the dual-employment theory has prevailed and that the question of who actually controlled the acts of the employee is not a factor of particular importance — and that an employee can indeed be the servant of two employers in a number of factual scenarios.

The Texas Supreme Court also held that, based on the provisions of the Act, the injured “employee should be able to pursue workers’ compensation benefits from either” and that, “[i]f either has elected not to provide coverage, but still qualifies as an ‘employer’ under the Act, then that employer should be subject to common law liability without the benefit of the defenses enumerated in section 406.033.” Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex.2005) (quoting Wingfoot, 111 S.W.3d at 143).

It is therefore clear that it is possible for both Chrome and Scot to be Neal’s employers for purposes of the Act. It is also clear that, because both entities were covered by workers’ compensation, employees (as defined by the Act) of both entities can only recover under the terms of the Act. It is also clear that an employee of one company who is under a contract of hire to the other company, when both have workers’ compensation coverage, is as a matter of law restricted to recovery under the Act. Garza, 161 S.W.3d at 473; Wingfoot, 111 S.W.3d at 134.

The question in this case is whether there is a fact issue on whether Chrome placed itself outside the protection of the Act by affirmatively stating in its responses to requests for admissions that Neal has never been its employee.

Any matter admitted in response to a request for admissions is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Tex.R. Civ. P. 198.3; Marshall v. Vise, 767 S.W.2d 699, 700 (Tex.1989). It constitutes a judicial admission, and the answering party may not then introduce evidence to controvert it. Marshall, 767 S.W.2d at 700; Beasley v. Burns, 7 S.W.3d 768, 769 (Tex.App.-Texarkana 1999, pet. denied). Further, in cases involving summary judgments, the trial court cannot consider affidavits offered by the nonmov-ant to contradict the deemed admissions. Beasley, 7 S.W.3d at 770; Cherry v. N. Am. Lloyds of Tex., 770 S.W.2d 4, 6 (Tex.App.-Houston [1st Dist.] 1989, writ denied); see Masterson v. Hogue, 842 S.W.2d 696, 697 (Tex.App.-Tyler 1992, no writ). These concepts, however, apply only to answers to a request for admissions about facts. Answers merely constituting admissions of law are not binding on the court. Am. Title Co. v. Smith, 445 S.W.2d 807, 809-10 (Tex.Civ.App.-Houston [1st Dist.] 1969, no writ).

The term “employee” has a technical meaning as defined by the Labor Code, and that definition is what Neal now seeks to apply to Chrome’s admission. However, that definition does not automatically apply to discovery requests, and Neal did not adopt that definition, or any other, in his request. The term “employee” can have different meanings in different contexts. Chrome objected to the request for admissions on the basis that it lacked specificity as to the term and answered the request subject to the objection. Neither party requested a ruling on the objection, and the rules provide that a party need not request a ruling on its own objection to preserve that objection. Tex.R. Civ. P. 193.4(b).

A question asking whether a person is an employee of a company at a particular time would ordinarily be a request to admit a factual matter. Under Neal’s theory of the case as articulated before the trial court and on appeal, however, the request asks Chrome to admit a legal conclusion — that Neal has never been an employee for workers’ compensation purposes. Requestors may not compel parties to answer legal conclusions. Credit Car Ctr., Inc. v. Chambers, 969 S.W.2d 459, 464 (Tex.App.-El Paso 1998, no pet.); see Gore v. Cunningham, 297 S.W.2d 287, 291 (Tex.Civ.App.-Beaumont 1956, writ ref'd n.r.e.). And such conclusions do not bind the court. Fort Bend Cent. Appraisal Dist. v. Hines Wholesale Nurseries, 844 S.W.2d 857, 858-59 (Tex.App.-Texarkana 1992, writ denied). A deemed admission of a purely legal issue is of no effect. Id.

Under this state of the record, Chrome’s admissions had no effect. Thus, Chrome conclusively proved that it was an employer of Neal and that he was covered by workers’ compensation insurance while in its employ. Under the authorities cited above, that is sufficient to show that Neal’s exclusive remedy was through the workers’ compensation system.

We affirm the judgment.

Dissenting Opinion by Justice CARTER.

CARTER, Justice,

dissenting.

Wisconsin Hard Chrome admitted Jimmy Neal was never its employee and objected that the term “employee” lacked specificity.

A request to admit or deny that a particular person was an employee of one of the parties at the time of the accident has routinely been utilized. See Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 208 n. 4 (Tex.2000); United States Fire Ins. Co. v. Maness, 775 S.W.2d 748, 749-50 (Tex.App.-Houston [1st Dist.] 1989, writ ref'd); Smith v. Univ. of Tex., 664 S.W.2d 180, 189 (Tex.App.-Austin 1984, writ ref'd n.r.e.); Ill. Employers Ins. Co. v. Lewis, 582 S.W.2d 242, 244 (Tex.Civ.App.-Beaumont), writ ref'd n.r.e., 590 S.W.2d 119 (Tex.1979); Missouri-Kansas-Texas R.R. Co. v. Franks, 399 S.W.2d 905, 907 (Tex.Civ.App.-Dallas 1966, writ dism’d by agr.); Halbert v. Sylestine, 292 S.W.2d 135, 138 (Tex.Civ.App.-Beaumont 1956, no writ). One court even chastised a party for attempting to evade such a question. Sanchez v. Caroland, 274 S.W.2d 114, 115-17 (Tex.Civ.App.-Fort Worth 1954, no writ) (the question as to whether the person operating Sanchez’ truck was in the course of Sanchez’ employment was a matter about which Sanchez should be fully informed, or at least should have been in a position to ascertain the facts by reasonable inquiry). The majority opinion acknowledges that such a question is ordinarily a request to admit a factual matter. However, without citation to any authority that such an admission is a legal conclusion, the majority concludes that this request calls for a legal conclusion. I disagree.

The majority opinion states that Neal seeks to use Chrome’s admission to lead to the legal conclusion that Neal was never Chrome’s employee for the purposes of workers’ compensation. The fact that Neal wants to use the admission for that purpose does not make the admission a legal conclusion. The admission is a factual one — Neal never worked for Chrome. A court is presented with facts on which it relies to arrive at legal conclusions. Here, Neal established the fact that he was not an employee of Chrome. It is the Court’s function to determine the legal effect of that fact.

The majority opinion states that Chrome objected to the request on the basis it lacked specificity. While that is true, it has no bearing on whether the question called for a legal conclusion. The relevance of that objection simply is that the term “employee” could be argued to have several definitions and none was specified. If the term “employee” as used in this context is vague or nonspecific, then a very good argument is available that the admission is not specific enough to lead to the conclusion that Neal was not an employee of Chrome for workers’ compensation purposes. In fact, Chrome makes such an argument — that its admission concerning Neal’s employment status only meant that Chrome did not issue Neal’s paychecks.

In this case, Neal alleged that he suffered exposure to toxic substances on the premises of Chrome and that Chrome was negligent and that negligence was a proximate cause of Neal’s injuries. Chrome answered, asserting that Neal’s claim was barred and that Neal’s exclusive remedy was through the Texas Workers’ Compensation Act. In these circumstances, I find that the request was specific. Chrome was defending Neal’s claim based on the Workers’ Compensation Act, which includes a specific definition of “employee.” That definition is not a technical term needing further clarification (each person in the service of another under a contract of hire), but is a term commonly used and understood. Such admissions have been recognized by Texas courts for many years.

I would find that the admission is binding and raises material facts which preclude the granting of summary judgment. I respectfully dissent.

      . According to the affidavit of Steven L. Wil-meth filed by Chrome in support of its motion for summary judgment, Scot Hone Corporation was a wholesale supplier of materials for Scot Industries at the time of the events giving rise to this suit.


author: Opinion by Justice WHITTINGTON.

text:
    DALLAS AREA RAPID TRANSIT, Appellant v. AMALGAMATED TRANSIT UNION LOCAL NO. 1338, Appellee.
    No. 05-05-00241-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 14, 2005.

      Harold R. McKeever, Jr., Dallas Area Rapid Transit, Dallas, for appellant.
    Hal K. Gillespie, Gillespie, Rozen, Wat-sky & Motley, P.C., Dallas, for appellee.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by Justice WHITTINGTON.

Amalgamated Transit Union Local No. 1338 sued Dallas Area Rapid Transit for violations of a general grievance resolution. DART filed a plea to the jurisdiction, claiming governmental immunity. The trial judge denied the plea. DART appeals, arguing in a single issue that the trial court did not have jurisdiction over ATU 1338’s suit. We affirm the trial court’s order.

BACKGROUND

ATU 1338 is a labor organization representing employees of DART, a regional transportation authority. See Tex. TRAnsp. Code Ann. §§ 452.001-.720 (Vernon 1999 & Supp.2004-05). In 2001, ATU 1338 filed a general group grievance on behalf of its bargaining unit members. In June 2002, DART and ATU 1338 entered into a general grievance resolution agreement to resolve the dispute. The resolution addressed salaries and wages for DART employees as well as other issues. In this lawsuit, ATU 1338 alleges DART breached the resolution agreement by failing to implement the pay increase included in the resolution and taking other unilateral actions inconsistent with the resolution. DART filed a plea to the jurisdiction, claiming the trial court lacked subject matter jurisdiction over ATU 1338’s claims on the grounds of governmental immunity. ATU 1338 argued in response that state governmental immunity law was preempted by federal law. The trial judge denied DART’s plea.

Standard of Review

A plea to the jurisdiction is a dilatory plea by which a party challenges a court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Whether a trial court has subject matter jurisdiction is a question of law to be reviewed de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). In performing this review, we do not look to the merits of the plaintiffs case but consider only the pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002) (citing Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex.2001)). Although federal preemption is not usually a jurisdictional question, see Mills v. Warner Lambert Co., 157 S.W.3d 424, 427 (Tex.2005) (federal preemption usually defense to plaintiffs suit but does not ordinarily deprive state court of jurisdiction), here it is asserted not to deprive the state court of jurisdiction but to maintain it despite DART’s plea.

Discussion

DART argues the trial court did not have jurisdiction for five reasons. First, DART argues its status as a governmental entity provides it with immunity from ATU 1338’s lawsuit. Second, DART argues it has not waived its immunity. Third, DART asserts it has not taken affirmative action to invoke the trial court’s jurisdiction. Fourth, DART maintains federal law does not preempt state law to confer jurisdiction on the trial court. Fifth, DART argues ATU 1338’s sole redress is through an administrative grievance process. Our resolution of the fourth argument is dispositive of the appeal. See Tex.R.App. P. 47.1. DART’s first, second, third, and fifth arguments are premised upon governmental immunity. We conclude the federal Urban Mass Transportation Act (UMTA) preempts state governmental immunity law in this case. See 49 U.S.C.A. § 5333(b) (West Supp.2005) (formerly designated as section 13(c) and referred to as section 13(c) in case law).

“If a state law conflicts with federal law, it is preempted and has no effect.” Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.2001); see also U.S. Const. art. VI, cl. 2 (“The laws of the United States are the ‘supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’ ”) (quoted in Great Dane Trailers, 52 S.W.3d at 743). Preemption may be express or implied. See Great Dane Trailers, 52 S.W.3d at 743. Federal law may impliedly preempt state law if it is impossible for a private party to comply with both state and federal requirements or if state law obstructs accomplishing and executing Congress’s full purposes and objectives. Great Dane Trailers, 52 S.W.3d at 743; see also Geier v. Am. Honda Motor Co., 529 U.S. 861, 882, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (because rule of state tort law upon which plaintiffs sued would have stood “as an obstacle to the accomplishment and execution of’ important objectives of federal motor vehicle safety standard, it was preempted).

ATU 1338 contends application of state governmental immunity law would thwart Congress’s intent and the purposes of the UMTA. The United States Supreme Court discussed the purposes of the UMTA in Jackson Transit Authority v. Local Division 1285, Amalgamated Transit Union, 457 U.S. 15, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982). At a time when many private transportation companies across the country were in “precarious financial condition,” the UMTA “was designed in part to provide federal aid for local governments in acquiring failing private transit companies so that communities could continue to receive the benefits of mass transportation despite the collapse of the private operations.” Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. Congress was also aware, however, “that public ownership might threaten existing collective-bargaining rights of unionized transit workers employed by private companies.” Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. The Court continued,

If, for example, state law forbade collective bargaining by state and local government employees, the workers might lose their collective-bargaining rights when a private company was acquired by a local government. To prevent federal funds from being used to destroy the collective-bargaining rights of organized workers, Congress included § 13(c) in the Act. Section 13(c) requires, as a condition of federal assistance under the Act, that the Secretary of Labor certify that “fair and equitable arrangements” have been made “to protect the interests of employees affected by [the] assistance.” The statute lists several protective steps that must be taken before a local government may receive federal aid.... The protective arrangements must be specified in the contract granting federal aid.

Jackson Transit Auth., 457 U.S. at 17-18, 102 S.Ct. 2202 (citations omitted).

The Jackson Transit Authority Court noted Congress’s concern that state law may forbid collective bargaining by state and local government employees, and thus “workers might lose them collective-bargaining rights when a private company was acquired by a local government.” See Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202. In Texas, state law does prohibit collective bargaining by government employees. See Tex. Gov’t Code Ann. § 617.002 (Vernon 2004) (official of state or political subdivision may not enter into collective bargaining contract with labor organization regarding wages, hours, or conditions of employment of public employees; any such contract void). DART, however, is a party to an “Arrangement Pursuant to Section 13(c) of the Urban Mass Transportation Act of 1964,” under which DART agreed the “existing rights of employees covered by this Arrangement to present grievances concerning their wages, hours of work, or conditions of work, individually or through a representative ... shall be preserved and continued.” Arrangement Pursuant to Section 13(c) of the Urban Mass Transportation Act of 196), ¶ 4. DART makes annual certifications and assurances of its compliance with federal law and regulations to the Federal Transit Authority to obtain federal assistance, and a significant portion of DART’s annual budget is derived from federal funds. Thus, the 13(c) arrangement between DART and ATU 1338 is consistent with Congress’s intent “to prevent federal funds from being used to destroy the collective-bargaining rights of organized workers.” See Jackson Transit Auth., 457 U.S. at 17, 102 S.Ct. 2202.

While the issue in Jackson Transit Authority was whether Congress intended to create federal causes of action for breaches of section 13(c) agreements and collective bargaining contracts, see Jackson Transit Auth., 457 U.S. at 21, 29, 102 S.Ct. 2202, the Court noted “it is reasonable to conclude that Congress expected the § 13(c) agreement and the collective-bargaining agreement, like ordinary contracts, to be enforceable by private suit upon a breach.” Jackson Transit Auth., 457 U.S. at 20-21, 102 S.Ct. 2202. The Court concluded the contracts at issue were to be governed by state, not federal, law. See Jackson Transit Auth., 457 U.S. at 29, 102 S.Ct. 2202. The Court explained, “Congress designed § 13(c) as a means to accommodate state law to collective bargaining, not as a means to substitute a federal law of collective bargaining for state labor law.” Jackson Transit Auth., 457 U.S. at 28, 102 S.Ct. 2202.

We have also noted “arrangements under section 13(c) of the Urban Mass Transportation Act are not collective bargaining contracts,” but are “contracts, albeit contracts required by federal statute.” Dallas Area Rapid Transit v. Plummer, 841 S.W.2d 870, 874 (Tex.App.-Dallas 1992, writ denied), abrogated in part on other grounds by Tex. Educ. Agen cy v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (Texas Uniform Declaratory Judgment Act waives governmental immunity for awards of attorneys’ fees). Section 13(c) protective arrangements are “valid and enforceable in state courts.” Plummer, 841 S.W.2d at 874. “Employees covered by a section 13(c) agreement, or their union, may bring a contract action in state court to enforce the agreement.” Plummer, 841 S.W.2d at 874 (citing Jackson Transit Auth., 457 U.S. at 29 n. 13, 102 S.Ct. 2202).

DART argues ATU 1338’s claim is not for breach of a section 13(c) arrangement, but only for breach of the resolution agreement. We disagree. The general grievance resolution agreement recites that ATU 1338’s grievance was addressed “in conformity with Section 8.10 of the DART Hourly Employment Manual and Section 617.005 of the Government Code and DART’s [Section] 13(c) Capital Arrangement certified by the Department of Labor on September 30, 1991.” As we noted in Plummer, “DART’s personnel policy manual contains the grievance procedure properly promulgated pursuant to section 13(c) and, as part of the section 13(c) agreement, is binding on DART.” Plummer, 841 S.W.2d at 874. We concluded in Plummer the trial court “was correct in finding that DART has a contractual duty to implement the Trial Board’s award and that failing to do so constitutes a breach of that duty.” Plummer, 841 S.W.2d at 874. As in Plummer, ATU 1338 “may bring a contract action in state court to enforce the agreement.” See Plummer, 841 S.W.2d at 874.

Assuming state law provides that DART, as a governmental entity, is immune from suit, this immunity would obstruct accomplishing and executing Congress’s full purposes and objectives under the UMTA. See Great Dane Trailers, 52 S.W.3d at 743; Geier, 529 U.S. at 882, 120 S.Ct. 1913. The UMTA, as interpreted in Jackson Transit Authority, is clear: state law is to control labor relations between local governments and unionized transit workers, as long as the workers’ collective-bargaining rights are preserved before a local government receives federal aid. See Jackson Transit Auth., 457 U.S. at 17, 27, 102 S.Ct. 2202. Congress designed section 13(c) of the UMTA “as a means to accommodate state law to collective bargaining.” Jackson Transit Auth., 457 U.S. at 27, 102 S.Ct. 2202. Although section 13(c) may be narrowly drafted to minimize its effects on state labor law, Congress’s clear intent was to preserve collective-bargaining rights. Where state immunity law would preclude enforcement of the rights preserved under section 13(c), Congress’s objectives could not be accomplished. Therefore, state immunity law “is preempted and has no effect.” See Great Dane Trailers, 52 S.W.3d at 743.

Not all conflicts between federal statutes and state immunity laws result in preemption. The United States Supreme Court held the State of Maine was immune from a suit by its employees under the Federal Fair Labor Standards Act because Congress cannot abrogate a state’s sovereign immunity. Alden v. Maine, 527 U.S. 706, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (applying sovereign immunity pursuant to Eleventh Amendment of United States Constitution). The rule in Alden, however, does not apply to DART in this case because DART is not an “arm of the state.” See Alden, 527 U.S. at 756, 119 S.Ct. 2240 (sovereign immunity bars suits against State or “arm of the state” but not lesser governmental entity); Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 322 (5th Cir.) (DART not “arm of the state” entitled to assert federal Eleventh Amendment immunity in case under Age Discrimination in Employment Act), cert. denied, 534 U.S. 1042, 122 S.Ct. 618, 151 L.Ed.2d 540 (2001); see also Hoff v. Nueces County, 153 S.W.3d 45, 49 (Tex.2004) (per curiam) (Eleventh Amendment immunity does not bar suit against “lesser entities” such as county). As noted in Alden, “certain limits are implicit in the constitutional principle of sovereign immunity;” it “does not bar all judicial review of state compliance with the Constitution and valid federal law.” Alden, 527 U.S. at 755, 119 S.Ct. 2240. Here, state immunity law does not bar judicial review of ATU 1338’s claims.

We affirm the trial court’s denial of DART’s plea to the jurisdiction.


author: JAMES T. WORTHEN, Chief Justice.

text:
    In re Richard F. GERRY, Relator.
    No. 12-05-00225-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 19, 2005.

      Robert T. Cain Jr., Robert Alderman Jr., Zeleskey, Cornelius, Hallmark, Roper & Hicks, L.L.P., Lufkin, for relator.
    Russell R. Smith, Fairchild, Price, Thomas & Haley, L.L.P., Nacogdoches, for real-party-in-interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Relator Richard F. Gerry seeks a writ of mandamus requiring the Honorable Jack Sinz, Judge of the County Court at Law, Nacogdoches County, Texas, to vacate the order denying his motion to substitute counsel and to enter an order granting the motion. We deny the writ.

Background

Richard F. Gerry and Corina M. Gerry are husband and wife. Corina filed for divorce on October 24, 2003. Through his attorney of record, Richard filed an answer and an original counterpetition for divorce. Richard then filed a motion to substitute as his attorney of record Robert Alderman of the law firm of Zeleskey, Cornelius, Hallmark, Roper & Hicks, L.L.P. (the “Zeleskey firm”). Corina filed an objection and response in which she asserted that the Zeleskey firm had a conflict of interest and should be disqualified from representing Richard in the divorce. More particularly, she alleged that, prior to filing the divorce, she met with an attorney at the Zeleskey firm to discuss possible legal representation in the divorce and divulged confidential information during the meeting.

At a hearing on the matter, Amy Long testified that a time sheet entry showed she met with Corina for .7 hour (42 minutes) in September 2003 in the Zeleskey firm offices. At the time, she was a new associate with the Zeleskey firm. Long specifically recalled that Corina came in to talk about a divorce. She remembered that, during their meeting, Corina asked about filing the divorce in another state and also remembered that Corina said her husband had been in jail. Long could not recall any other details about their conversation, but stated that she left Corina with the impression that she should call back if she wanted the firm to represent her. When asked whether Corina could have shared other facts with her that she did not recall, Long answered, “I’m sure she could have.” She also stated it was “entirely possible” that Corina provided her with confidential information during their meeting. Long testified that she did not recall getting any documents from Corina and did not have any documents.

According to Corina, she and Long discussed facts and issues related to Corina’s divorce. When asked to generally describe what she told Long, Corina replied, ‘Well, I explained the facts of the case up to that point for myself that were relevant[,] and I provided her with documents that I had, letters my husband had written and things of that nature and promise[s] that were made. Just anything that was relevant up to that point.” She stated that she thought someone from the Zeleskey firm “would be getting back” to her about representing her. Corina had no further communication with anyone from the Zeleskey firm and was represented by other counsel in the divorce.

Respondent denied Richard’s motion to substitute counsel by order dated April 22, 2005. On June 21, 2005, Respondent signed an order nunc pro tunc, which stated that Richard’s motion was denied “based upon disqualification of said counsel.” This original proceeding followed.

Prerequisites to Mandamus

Mandamus will issue when a trial court commits a clear abuse of discretion for which the relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 838, 839 (Tex.1992). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Id. In order to find an abuse of discretion, the reviewing court must conclude that the facts and circumstances of the case extinguish any discretion in the matter. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex.1985). A party generally lacks an adequate appellate remedy if its counsel is disqualified. Mendoza v. Eighth Court of Appeals, 917 S.W.2d 787, 789-90 (Tex.1996). Therefore, the sole issue before us is whether Respondent abused his discretion in disqualifying Alderman.

Abuse of Discretion

“Without prior consent, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client: ... (3) if it is the same ... matter.” Tex. Disciplinary R. Prof'l Conduct 1.09(a)(3), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9). “The ‘same matter’ aspect of this prohibition prevents a lawyer from switching sides and representing a party whose interests are adverse to a person who disclosed confidences to the lawyer while seeking in good faith to retain the lawyer.” Id. 1.09 cmt. 4A. “When lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a).” Id. 1.09(b).

“Confidential information” includes both “privileged information” and “unprivileged client information.” Id. 1.05(a). “Privileged information” includes the information of a client protected by the attorney-client privilege of Texas Rule of Evidence 503. Id. “Unprivileged client information” means all information relating to a client or furnished by the client, other than privileged information, acquired by the attorney during the course of or by reason of the representation of the client. Id. The term “client” includes one who consults an attorney with a view to obtaining professional legal services from that attorney. Tex.R. Evid. 503(a)(1).

Richard concedes that meeting with a prospective client is a ground for disqualification where the prospective client shares confidential information or an attorney-client relationship is created. It is undisputed that no attorney-client relationship arose from Corina’s meeting with Long. Therefore, the issue before trial court was whether Corina shared confidential information during the meeting. Richard contends that the evidence does not support Respondent’s conclusion that Corina shared confidential information with Long. Therefore, Richard concludes, Respondent abused his discretion by concluding that Alderman was disqualified and denying the motion to substitute Alderman as his counsel. We disagree.

Corina consulted with Long about possible legal representation in a divorce action, and Richard now seeks to hire Alderman in the same case. Both Long and Aider-man are attorneys with the Zeleskey firm. Consequently, Alderman cannot represent Richard if Long received confidential information from Corina during their September 2003 meeting.

Long testified that her meeting with Corina lasted .7 hour. Corina testified that, during the meeting, she related anything relevant to the issues in the ease and provided documents and letters to someone at the Zeleskey firm for copying. Long remembered little of what she and Corina discussed during their meeting and admitted that Corina could have shared facts relating to the case that she did not recall. Long also admitted it was “entirely possible” that Corina could have provided her with confidential information. Long further testified that she had no personal knowledge of Corina’s giving documents to anyone at the Zeleskey firm, but could not categorically refute Corina’s assertion. From this testimony, Respondent reasonably could have concluded that Corina divulged confidential information during her meeting with Long. Thus, Respondent did not abuse his discretion in denying Richard’s motion to substitute counsel. Accordingly, Richard’s petition for writ of mandamus is denied.

      . As an aside, we note that during the hearing, Corina’s attorney offered to provide more specific information in camera if Alderman planned to contend Corina’s testimony was insufficient. Alderman responded, "I’m not going to ask her any additional questions on that, Your Honor. She said she went into the facts of the divorce and relationship and agreements and that kind of thing. And Ms. Long, who is the other person, says that didn’t happen. So we have a dispute between that.”


author: Justice COOPER.

text:
    Nelson LOPEZ Appellant, v. COMMONWEALTH OF KENTUCKY Appellee.
    No. 2003-SC-0878-DG.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    Fred E. Peters, Ashley Rogers Dye, Lexington, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, State Capitol, Frankfort, Leigh A.P. Ho-naker, Assistant Fayette County Attorney, Lexington, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

A Fayette District Court jury convicted Appellant, Nelson Lopez, of operating a motor vehicle with alcohol concentration of or above 0.08, KRS 189A.010(l)(a), and he was sentenced to twenty-one days in jail (reduced to ten days) and a $500.00 fine. His appeal arrives in this Court in an unusual posture. The only issue presented to us is whether the district court properly instructed the jury on this offense as redefined by the 2000 General Assembly. Appellant, who was convicted under the instruction, claims the instruction was proper. The Commonwealth, which obtained Appellant’s conviction under the instruction, claims it was improper. The instruction was as follows:

You will find the defendant guilty if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(A) That in this county on or about October 11, 2002, the defendant was operating or in physical control of a motor vehicle;
AND
(B) That while so doing his blood alcohol concentration was .08 or greater;
AND
(C) The sample of the Defendant’s breath was taken within two hours of cessation of the operation or physical control of the motor vehicle.

Following his conviction, Appellant appealed to the Fayette Circuit Court, asserting that (1) the district court erroneously permitted the Commonwealth to introduce a videotape of his field sobriety test performed immediately prior to his arrest and approximately one hour before his blood alcohol test; and (2) the district court erroneously allowed the prosecutor to tell the jury during her opening statement and closing argument that the jury could convict Appellant of the offense if his blood alcohol content was 0.08 at the time of the blood alcohol test, regardless of what it may have been at the time he was operating his motor vehicle. Although the Commonwealth had objected to the instruction given by the district court, it did not cross-appeal on that issue.

The circuit court held that it was reversible error to permit the Commonwealth to introduce the videotape of the field sobriety test because, except for operating a motor vehicle, the only element of this offense is having a blood alcohol concentration of 0.08 or more. The circuit court reasoned that, since Appellant did not argue that his blood-alcohol level registered 0.08 because of a malfunctioning machine (rather than intoxication), the field sobriety test was irrelevant. The circuit court then held that the statements by the prosecutor were not erroneous under the 2000 version of the statute, but that the instruction was erroneous, and directed the district court upon retrial to instruct the jury in accordance with the 2000 amendment of the statute.

Appellant filed a motion for the Court of Appeals to take discretionary review of the instruction issue. The Commonwealth did not file a cross-motion with respect to the circuit court’s reversal for a new trial because of the admission of the field sobriety test. When the Court of Appeals denied discretionary review, Appellant moved this Court to take discretionary review of the instruction issue. Again, the Commonwealth did not file a cross-motion for discretionary review. Thus, the circuit court’s reversal for a new trial because of the admission of the field sobriety test is not an issue before this Court. Green River Dist. Health Dep’t v. Wigginton, 764 S.W.2d 475, 479 (Ky.1989), superseded by statute on other grounds as stated in Withers v. Univ. of Ky., 939 S.W.2d 340, 344-45 (Ky.1997). This case will be retried. The only issue before us is how to properly instruct the jury upon retrial.

KRS 189A.010(l)(a), as amended by the 1991 General Assembly, was entitled “AN ACT relating to driving while impaired,” and provided:

(1) No person shall operate or be in physical control of a motor vehicle anywhere in this state:
(a) While the alcohol concentration in his blood or breath is 0.10 or more based on the definition of alcohol concentration in Section 1 of this Act [KRS 189A.005].

1991 Ky. Acts (1st extra.sess.), ch. 15, § 2. As compiled, the statute was entitled “Operating motor vehicle with alcohol concentration of or above 0.10 ..." (Emphasis added.)

As amended by the 2000 General Assembly, KRS 189A.010(1) and (2) provide:

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(2) ... [I]f the sample of the person’s blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (l)(a) or (e) of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (l)(b) or (d) of this section.

2000 Ky. Acts, ch. 467, § 2. The title of the amended Act was “AN ACT relating to crimes and punishments.” The title of the statute as compiled was changed only to read, “Operating motor vehicle with alcohol concentration of or above 0.08 ....” (Emphasis added.)

The Commonwealth asserts and the Fayette Circuit Court agreed that the 2000 amendment of KRS 189A.010 criminalized having a blood alcohol content of 0.08 or more at the time the accused’s blood or breath was tested, so long as the test was conducted within two hours of cessation of driving. Thus, the Commonwealth claims the instruction should properly read:

You will find the defendant guilty if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(A) That in this county on or about October 11, 2002, the defendant was operating or in physical control of a motor vehicle;
AND
(B) The defendant had a blood alcohol concentration of 0.08 or above as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle.

(Emphasis added.)

The parties agree that if the test is not taken within two hours of cessation of operation or physical control of a motor vehicle, the Commonwealth cannot prosecute under KRS 189A.010(l)(a) but must proceed under KRS 189A.010(l)(b) or (d). Assuming the test was taken within two hours of cessation of operation of a motor vehicle, the issue becomes whether the statute prohibits having a blood alcohol content of 0.08 or more while operating a motor vehicle or by having a blood alcohol content of 0.08 or more while taking the blood alcohol test.

In his brief and at oral argument, Appellant posited several scenarios in which a person could be convicted of having a blood alcohol content of 0.08 or more while taking the blood alcohol test even though the person had a lower blood alcohol level, or no blood alcohol level at all, when he or she ceased operating a motor vehicle less than two hours prior to taking the test. E.g., (1) a person’s vehicle breaks down on the highway and he consumes alcohol while awaiting assistance; (2) a person is involved in a hit-and-run accident on his way home from work and consumes alcohol at home during the interim before the police arrive; or (3) a person drives to a bar and consumes alcohol, then is arrested at the bar for disorderly conduct.

Appellant also claims (but offered no proof at trial) that as much as sixty to ninety minutes can expire after alcohol is consumed before it is actually absorbed into the blood stream. A test conducted in this interim might show a blood alcohol level of 0.08 at the time of the test whereas the blood alcohol level was less than 0.08 at the time of operation of a motor vehicle. We held in Commonwealth v. Wirth, 936 S.W.2d 78 (Ky.1996), that the Commonwealth does not have to produce an expert witness to extrapolate the blood alcohol level back from the time of the blood alcohol test to the time the accused ceased operation of the motor vehicle. Id. at 83-84. However, that does not mean the accused cannot introduce such evidence, if such exists and it would tend to be exculpatory.

We conclude that the Fayette Circuit Court misconstrued the 2000 amendment of the statute. The General Assembly intended to criminalize the existence of a blood alcohol concentration of 0.08 or more only if the accused was then operating or in physical control of a motor vehicle. The addition of the two-hour time limitation was intended only to prescribe the period in which a blood alcohol test must be administered in order to sustain a conviction solely on the basis of the results of the test. Substitution of the word “having” for “while” is of no consequence. If there were no other subsections of the statue, it would no doubt read: “A person having an alcohol concentration of 0.08 or more ... shall not operate or be in physical control of a motor vehicle anywhere in this state.” The only two elements of this offense are (1) having a blood alcohol concentration of 0.08 or more and (2) operating or being in physical control of a motor vehicle. Cf. Hayden v. Commonwealth, 766 S.W.2d 956 (Ky.App.1989). Those two elements must coincide. If the Commonwealth believes it cannot prove that the accused’s blood alcohol concentration was 0.08 at the time he was operating a motor vehicle, it can opt to proceed under one of the alternative theories provided by the statute. Under KRS 189A.020(l)(b) and (d), the blood alcohol concentration creates only an evidentiary presumption whereas under KRS 189A.020(l)(a), it is an element of the offense. King v. Commonwealth, 875 S.W.2d 902, 902 (Ky.App.1993).

Our conclusion in this regard means that the jury instruction given by the Fayette District Court was not fatally flawed and that the prosecutor should not have been permitted to tell the jury that Appellant’s blood alcohol concentration did not have to be 0.08 or more at the time he was operating his motor vehicle so long as it was at that level when the test was administered. Though not given in the exact language of the statute, elements (A) and (B) of the instruction required the jury to find beyond a reasonable doubt that Appellant had a blood alcohol concentration of 0.08 or more at the time he was operating or in physical control of a motor vehicle. Element (C) with respect to the two-hour time limit was uncontested and presumably included in the instruction out of an abundance of caution. Unfortunately, it was Part (C) that the prosecutor used to support her erroneous closing argument. Nothing would preclude the parties from stipulating to this issue to avoid confusing the jury.

Accordingly, we reverse the Fayette Circuit Court and hold that the Fayette District Court properly instructed the jury but erroneously failed to sustain the objections to the prosecutor’s opening statement and closing argument. We remand this case to the Fayette District Court for retrial in accordance with this opinion and with the Fayette Circuit Court’s ruling on the evidence issue.

LAMBERT, C.J.; GRAVES, JOHNSTONE, ROACH, and SCOTT, JJ., concur.

WINTERSHEIMER, J., concurs in result only without opinion.

      . See generally Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App.2002) (construing the pre-2000 version of the statute), for an accurate analysis of this issue.

      .We are not asked here to determine the constitutionality of KRS 189A.010(2). But see Manns v. Commonwealth, 80 S.W.3d 439, 445-46 (Ky.2002) (holding unconstitutional statute that purported to unilaterally amend the Kentucky Rules of Evidence).

      . KRS 189A.010(l)(b) prohibits the operation of a motor vehicle "[w]hile under the influence of alcohol.”

      . KRS 189A.010(l)(d) prohibits the operation of a motor vehicle "[w]hile under the combined influence of alcohol and any other substance which impairs one’s driving ability."

      . Appellant conceded at oral argument that the issue can only arise if the blood alcohol content is between 0.08 and approximately 0.10, because the blood alcohol content generally would not increase more than 0.02 in a two-hour waiting period.


author: /s/ Joseph E. Lambert Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant v. Douglas C. BRANDON, Respondent.
    No. 2005-SC-000718-KB.
    Supreme Court of Kentucky.
    Oct. 20, 2005.
    Bruce K. Davis, Executive Director, Jay R. Garrett, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, KY, Counsel for Movant.
    Jason L. Hargadon, Getty Keyster & Mayo, LLP, Lexington, KY, Counsel for Respondent.
   OPINION AND ORDER

The Kentucky Bar Association (KBA) requests this Court enter an Order confirming the automatic temporary suspension of Douglas C. Brandon (Mr. Brandon), pursuant to SCR 3.166. Mr. Brandon, a member of the KBA, no. 07170, was admitted to the practice of law in this Commonwealth on August 1,1970. He was convicted on June 26, 2003 in the United States District Court for the Southern District of New York of one (1) count of conspiracy to commit securities fraud and wire fraud in violation of 18 U.S.C. § 371, two (2) counts of securities fraud in violation of 15 U.S.C. § 78j(b) & 78ff, and 17 C.F.R. § 240.10b-5, and four (4) counts of wire fraud in violation of 18 U.S.C. § 1343 and 1346. On June 1, 2005, the judgment of conviction in the criminal case was entered against Mr. Brandon. SCR 3.166 provides that:

Any member of the Kentucky Bar Association who pleads guilty to, or is convicted by a judge or jury of, a felony in this State or in any other jurisdiction shall be automatically suspended from the practice of law in this Commonwealth. “Felony” means an offense for which a sentence to a term of imprisonment of at least one (1) year was imposed. The imposition of probation or parole or any other type of discharge prior to the service of sentence, if one is imposed, shall not affect the automatic suspension. The suspension shall take effect automatically beginning on the day following the plea of guilty or finding of guilt by a judge or jury or upon the entry of judgment whichever occurs first.

Although Mr. Brandon was found guilty by a jury in the United States District Court for the Southern District of New York on June 26, 2003, the rule in effect at that time did not allow for automatic suspension upon a felony conviction in other jurisdictions. Accordingly, pursuant to SCR 3.166 as amended on January 1, 2004, Mr. Brandon was temporarily suspended beginning June 2, 2005, the day following the entry of judgment.

Therefore it is ORDERED that:

1. Douglas C. Brandon’s automatic temporary suspension is hereby confirmed, pursuant to SCR 3.166, effective from June 2, 2005, until superseded by subsequent Order.
2. Notice and publication of this Order is granted for the benefit of all members of the bar and public.
3. Mr. Brandon shall comply with the provisions of SCR 3.390 regarding notification of clients of his suspension.

All concur, except ROACH, J., not sitting.

ENTERED: October 20, 2005.

/s/ Joseph E. Lambert Chief Justice