author: REX D. DAVIS, Chief Justice. TOM GRAY, Justice,

text:
    Jack A. KANZ, Appellant, v. Helen A. HOOD, et al., Appellees.
    No. 10-98-248-CV.
    Court of Appeals of Texas, Waco.
    April 12, 2000.

      G. Philip Robertson, Robertson & Robertson, Clifton, for appellant.
    Gregory B. Johnson, Malone & Johnson, Waco, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

Appellant Jack A. Kanz presents two issues on appeal in which he claims that the trial court erred when it: (1) denied his attorney’s fees for his defense of an unsuccessful removal suit against him as independent executor and (2) ordered the district clerk to distribute the estate because it interfered with the independent executor’s right to be free of court supervision. See Tex. PROb.Code Ann. §§ 145(h), 149B, 149C(c) (Vernon 1980 & Supp.2000).

We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Andrew Kanz, Jr., died in September of 1988 and appointed his son, Jack Kanz (hereinafter Kanz), independent executor of his estate in his will. In April of 1994, Helen A. Hood, Alma L. Marion, and Joe V. Kanz, (collectively “Hood”), beneficiaries under Andrew Kanz’ will, filed a petition against Kanz in his capacity as independent executor of their father’s estáte, in which they complained that Kanz had not made an accounting or any distributions of the estate. In February of 1995, Hood filed a motion to recover the compensation paid to Kanz as independent executor of the estate and to disapprove his final accounting.

In September of 1995, Hood filed a motion to replace Kanz as independent executor of the estate with Joe V. Kanz (“Joe”). In the motion, Hood requested that the trial court declare the position of independent executor vacant and appoint Joe as independent executor. Hood claimed that Kanz’ affidavit, filed when Kanz resigned as independent executor in September of 1994, was insufficient to close the estate. Kanz filed a response in which he claimed that the trial court did not have jurisdiction because the estate was closed. •

After a bench trial, the trial court held that Kanz executed a false closing affidavit; ordered that Hood recover the attorney’s fees paid to Kanz; and appointed a receiver to sell the remainder of the estate’s assets. Kanz appealed to this court and we affirmed the trial court’s judgment, as modified by our opinion. See Kanz v. Hood, No. 10-96-152-CV, (Waco October 15,1997, no pet.) (not designated for publication).

In December of 1997, both Hood and Kanz filed applications for reimbursement of their attorneys’ fees and costs. The trial court granted Hood’s application for reimbursement, denied Kanz’ application, and ordered the district clerk to immediately distribute the funds held in the registry of the court. Pursuant to Kanz’ request, the trial court issued its findings of fact and conclusions of law. Kanz subsequently perfected his current appeal.

ATTORNEY’S FEES

Kanz’ first issue on appeal claims that the trial court’s findings of fact, in which the trial court denied his request for attorney’s fees for his defense of a removal action instituted against him, were against the great weight and preponderance of the evidence.

A trial court’s findings of fact are reviewed for factual sufficiency of the evidence under the same legal standards used to review jury verdicts for factual sufficiency determinations. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906, 911-12 (Tex.App. — Austin 1998, pet. denied). We must weigh all the evidence in the record and overturn the trial court’s findings of fact only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772; Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App. — Waco 1997, pet. denied).

The trial court may award an independent executor his attorney’s fees used for his defense of a removal action, whether the removal action is successful or not, if the independent executor’s defense is in good faith. Tex. PROb.Code Ann. § 149C(c) (Vernon 1980). Kanz argues that the trial court’s findings of fact, in which it held that his “attempting to defend his own gross misconduct and gross mismanagement [was] not an action taken in good faith,” conflicts with the clear language of section 149C(c). Kanz contends that the trial court did not remove him as independent executor and did not make an explicit finding of fact that his defense of the removal suit was in bad faith. Therefore, the trial court was required to award him attorney’s fees under section 149C(c) because as a matter of law, his effective defense must have been in good faith. Kanz further claims that other courts have held, either directly or indirectly, that reimbursement of an independent executor’s attorney’s fees are mandatory under section 1490(c).

An independent executor does not need to be successful in his defense of a removal action in order to be awarded attorney’s fees under the Probate Code. See Tex. PROb.Code Ann. § 1490(c) (Vernon 1980). Rather, the trial court’s award of attorney’s fees hinges entirely upon its determination of whether the independent executor’s defense was in good faith. Id.

After a bench trial, the trial court found that Kanz did not correct several curable title defects to the family farm before he attempted to distribute the farm to the beneficiaries. The trial court also determined that Kanz filed a false closing affidavit and did not properly close the estate. Although the trial court did not remove Kanz from his post as independent executor, it expressly held that he did not defend the removal action in good faith. Section 1490(c) does not require the trial court to award attorney’s fees if it fails to remove the independent executor. See id. After reviewing the record, we hold that the trial court’s determination was not against the great weight and preponderance of the evidence.

We overrule Kanz’ first issue.

INTERFERENCE WITH DUTIES OF INDEPENDENT EXECUTOR

In his second issue, Kanz contends that the trial court violated section 149B(b) of the Texas Probate Code when it interfered with his duties as independent executor by ordering the district clerk to distribute the proceeds of the estate. See Tex. PROb.Code Ann. § 149B(b) (Vernon 1980). Section 149B(b) of the Texas Probate Code states, “unless the court finds a continued necessity for administration of the estate, the court shall order its distribution by the independent executor to the persons entitled to the property.” Id. § 149B(b) (Vernon Supp.2000).

As we held in the first appeal, the petition for accounting and distribution was properly filed in the district court, as was the action to remove Kanz as independent executor. Kanz v. Hood, No. 10-96-152-CV, (Waco October 15, 1997, no pet.) (not designated for publication); see Tex. Prob.Code Ann. § 149C(a); Eppenauer v. Eppenauer, 831 S.W.2d 30, 34 (Tex.App.— El Paso 1992, no writ). A district court’s authority to order accounting, distribution, and removal includes the power to appoint a receiver to assume management and control of estates in the process of independent administration. See Stanley v. Henderson, 139 Tex. 160, 162 S.W.2d 95, 97-98 (1942); Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, 984 (1933); Oldham v. Keaton, 597 S.W.2d 938, 942 (Tex.Civ.App. — Texarkana 1980, writ refd n.r.e.); Metting v. Metting, 431 S.W.2d 906, 908 (Tex.Civ.App. — San Antonio 1968, no writ); O’Connor v. O’Connor, 320 S.W.2d 384, 390 (Tex.Civ.App. — Dallas 1959, writ dism’d); see also 17 M.K. WoodwáRd & ERNest E. Smith, III, Texas Practice: PRObate & Decedent’s Estates § 508 (1971 & Supp.1999). Furthermore, removal of the independent executor is not a necessary prerequisite to the appointment of a receiver to take control of the administration:

[Discussion of whether appointment of a receiver is tantamount to removal of the executor would serve no useful purpose. It is well settled that a district court has power to appoint a receiver of an estate which is in the process of independent administration. In most cases, no practical consequences would result from a recital that the independent executor is removed. As said in O’Connor v. O’Connor, supra, the appointment of a receiver gives full relief, so language of removal would be “dupli-cative and unnecessary.”

Metting v. Metting, 431 S.W.2d at 908 (quoting O’Connor v. O’Connor, 320 S.W.2d at 391).

Kanz argues that, although the trial court had statutory authority to order the executor to distribute the estate, the court lacked the authority to order the district clerk to do the same after the funds from the sale of the property were deposited into the registry of the court. Kanz does not complain, however, that the beneficiaries did not get their share of the estate; that the receiver sold the property for too low a sum; or that the beneficiaries incurred lengthy delays in receiving their share of the estate from the district clerk. Rather, Kanz complains that the trial court’s order interfered with his duties as an independent executor. Even assuming that the trial court did violate section 149B(b) of the Texas Probate Code, we hold it was harmless. See Tex.R.App. P. 44.1(a) (“No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment ... ”). This being a one asset liquidation and distribution, a substitute independent executor would not have improved the beneficiaries’ recovery.

We overrule Kanz’ second issue.

The judgment of the trial court is affirmed.

GRAY, J., dissents.

TOM GRAY, Justice,

dissenting.

The trial court had no jurisdiction to take any of the actions complained of on appeal. Because the majority affirms the actions of the trial court, I respectfully dissent.

We should not be distracted by the apparent simplicity of the result reached by the trial court. The trial court has control over the estate assets only because the funds are on deposit with the district clerk. The trial court has ordered certain fees and expenses paid, others not paid and the remaining proceeds disbursed equally to the nine brothers and sisters, all equal distributees under the decedents will.

At first blush it may appear to be an acceptable result because of the questionable activities of the independent executor in the past. It is not. First, we must remember that in the earlier suit to remove Kanz as independent executor the trial court heard all the evidence and did not remove him. Second, and much more serious, is that the majority opinion allows a trial court to assume control over an independent administration contrary to the Probate Code, established case precedent and the express appointment made by the deceased, Kanz’s father.

INDEPENDENT ADMINISTRATION IN TEXAS

Independent administrations are provided for by section 145(b) of the Probate Code, which provides:

Any person capable of making a will may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement, and list of claims of his estate.

Tex. PROB.Code Ann. § 145(b) (Vernon 1980) (emphasis added). The purpose of this restraint upon the county court is to free the independent executor from judicial supervision and to effect the distribution of an estate with a minimum of cost and delay. Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975). As long as the estate is represented by an independent executor, further action of any nature should not be had in the court except where the Probate Code specifically and explicitly so provides. D’Unger v. De Pena, 931 S.W.2d 533 (Tex.1996); Bunting v. Pearson, 430 S.W.2d 470 (Tex.1968); see also Tex. PROB.Code Ann. § 145(h) (Vernon 1980).

The trial court did not remove Kanz as independent executor in the earlier suit. The heirs that sought his removal had ample opportunity to appeal that determination at the same time that the executor was appealing the appointment of a receiver. They did not. As such Kanz remains vested with all the authority and power of his office. As an independent executor, he can do anything without court approval that a dependent executor can do with court approval. This has been the law applicable to independent executors since at least 1887. In Dwyer v. Kaltayer, the Texas Supreme Court in holding that an independent executor could operate a mercantile business stated the rule as follows:

But, according to our construction, the executor had the power of administering the estate free from the control of the county court, without other enlargement or any limitation of his powers, except such as were thrown around him by the statute. It cannot be doubted that such an executor, called in our state, for the sake of convenience, an independent executor, has the power to do without the order of the county court every act which an executor administering an estate under the control of the court can do with such order. In other words, when not restrained by the will itself he can certainly exercise all the powers given by statute to any other executor or administrator.

Dwyer v. Kaltayer, 68 Tex. 554, 563, 5 S.W. 75, 79 (1887) (emphasis added).

Various courts have used strong language to describe the nature of the powers of the independent executor. In the words of the Texas Supreme Court, “An independent executor is just that — independent, independent of court supervision.” D’Unger v. De Pena, 931 S.W.2d 533, 535 (Tex.1996).

In one of the most often cited cases on the issue the Texas Supreme Court expressed the independent executor’s authority as follows:

With reference to such matters the executor can do whatever the court could authorize to be done, if the estate was under its entire control. McDonough v. Cross, 40 Tex. [251], 280 [ (1874) ]. The limitation placed upon the powers of the court operates to confer authority upon the executor to do without action of the court those things which it is prohibited to order. This is the measure of the independent power conferred by law upon the executor, and the extent to which the prohibition upon the court goes. The prohibition upon the power of the court arises out of the existence of a trustee to whom the testator has chosen to confide those powers, ...

Roy v. Whitaker, 92 Tex. 346, 355-356, 48 S.W. 892, 897 (1898).

The Dallas Court of Appeals described the nature of the independent executor as follows: “His ‘independence’ consists largely in his right in the administration of such estate to do without an order of the county court every act which he could do with such an order, were he acting under the control of such court.” Etter v. Tuck, 91 S.W.2d 875, 877 (Tex.Civ.App. — Dallas 1936, writ dism’d), and temporary injunction dismissed, 101 S.W.2d 843 (Tex.Civ. App. — Dallas 1937, no writ). Probably the strongest language regarding the power of an independent executor was expressed by the Galveston Court of Appeals. It stated:

[W]here the language of a will appointing an independent executor is clear and unambiguous, he becomes a creature of the will and not of the probate court. He is by the terms of the will vested with unbridled authority over the estate and is authorized to do any act respecting it which the court could authorize to be done if the entire estate were under its control, or whatever testator himself could have done in his lifetime, except as restrained by the terms of the will itself.

Hutcherson v. Hutcherson, 135 S.W.2d 757, 758 (Tex.Civ.App. — Galveston 1939, writ ref'd) (emphasis added).

TRIAL COURT’S DENIAL OF CLAIM

Once qualified as independent executor and until removed, the independent executor is the only individual vested with the authority and the power to determine if a payment of an expense from estate funds or a distribution from the estate which has been entrusted to the executor’s care is appropriate. This has been the rule since at least 1877 when the Texas Supreme Court held that the allowance of claims against an estate subject to independent administration need not be approved by the county court. McLane v. Belvin, 47 Tex. 493, 501 (1877); see also Roy v. Whitaker, 92 Tex. 346, 355, 48 S.W. 892, 895 (1898). The Commission of Appeals determined that not only could the independent executor pay the debts of the estate being administered, the independent executor could also sell estate assets, without judicial intervention, to pay the debts. The Commission explained its holding as follows:

Although the various decisions cited involve an administration of the deceased husband’s estate under the direction of the probate court, they are equally decisive of the scope of exclusive jurisdiction of the independent executor of the deceased husband’s will, so far as the payment of the community debts is concerned; for it is well settled that, as regards the sale of property belonging to the estate of the testator, for the purpose of paying the testator’s debts, his duly authorized independent executor has all the authority which could be conferred on the administrator of the estate by the probate court if the estate were being administered there.

Lovejoy v. Cockrell, 63 S.W.2d 1009, 1010 (Tex.Comm’n.App.1933, judgm’t aff’d).

Thus, unlike a dependent executor or administrator, where an application for approval to pay an expense must be filed and court approval must be obtained, no judicial approval is required for an independent executor to act. This also applies to a payment that the independent executor is making to himself. As the Houston Court of Appeals has explained:

He is entitled to pay claims against the estate out of funds of the estate without court authorization in all situations where an ordinary executor could pay them after securing a court order. The independent executor has the same responsibilities and duties with reference to the estate as does the executor under the direction of the probate court, [citing Roy v. Whitaker ]. He is entitled to pay claims against the estate out of funds of the estate without court authorization in all situations where an ordinary executor could pay them after securing a court order. Lang v. Shell Petroleum Corporation, 188 Tex. 899, 159 S.W.2d 478 [1942], We see no reason to except from this rule claims against the estate owned by the executor, whether incurred before or after the death of the testator.
We think it does not follow that the executor must sue himself in District Court to establish his personal claim against the estate. He may allow his own claim in the exercise of the discretion confided in him by the testator. If a subsequent action for accounting is brought against him by those entitled to the estate, he must justify his action in allowing himself compensation for carrying on a business, and the reasonableness of the amount allowed, just as he must justify any other item which he might claim as an expense of administration.

Walling v. Hubbard, 389 S.W.2d 581, 590 (Tex.Civ.App. — Houston 1965, writ ref’d n.r.e. and writ dism’d w.o.j.) (emphasis added).

Parties cannot confer jurisdiction on a court by agreement or failure to object to actions taken in the absence of jurisdiction. Russ Berrie and Co., Inc. v. Gantt, 998 S.W.2d 713, 715 (Tex.App. — El Paso 1999, no pet.). Thus, even if the court is asked to approve and does approve a particular payment, it does so without jurisdiction.

When the parties applied to the district court for payment of their attorney fees and costs incurred in the suit to remove Kanz as executor, they were both asking the court to do something over which it has no jurisdiction. By approving one application and rejecting the other, the court has performed the task that the decreased entrusted to his son, and the court is now acting in place of the independent executor. This is exactly what the legislature and the deceased prohibited by the authorization for and creation of an independent administration of his estate.

The only activities that a court can involve itself in once an independent administration has been created, are those which the Probate Code “specifically and explicitly provides for some action in the county court.” Tex. PROb.Code § 145(h); see also D’Unger v. De Pena, 931 S.W.2d 533, 534 (Tex.1996); Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex.1968). Texas Probate Code § 149C (a) and (b) provide the trial court with a specific procedure to remove an independent executor. Tex. Prob.Code § 149C (a), (b) (Vernon 1980 & Supp.2000). That attempt has already been made by the devisees and failed.

Probate Code § 149C (c) and (d) are not such specific and explicit provisions. Tex. Prob.Code § 149(c), (d) (Vernon 1980 & Supp.2000). Rather, these provisions are written broadly so that any one of three individuals, depending on the situation, could make the decision as to whether cost and expenses will be paid out of the estate funds. These three individuals are:

1. Independent Executor — if not removed;
2. The trial court — as part of the order of removal; or
3. A successor personal representative of the estate.

Because Kanz is still the executor, he is the only one empowered to make the determination. Of course the executor’s actions are subject to the constraints of the probate code including a suit in connection with a final accounting to challenge the executor’s payment or denial of specific expenses, but that is not the form of the action before us. See Walling v. Hubbard, 389 S.W.2d 581, 590 (Tex.Civ.App. — Houston 1965, writ refd n.r.e. and writ dism’d w.o.j.).

The matter should have been remanded by the district court to the county court immediately upon the resolution of the pri- or dispute. Tex. Prob.Code Ann. § 5 (Vernon 1980 & Supp.2000). If this had been done in a timely fashion, there would have been no pending district court suit in which to file these applications for payment of expenses. Additionally, once filed, the district court should have refused to act upon the request because it lacked jurisdiction to do so.

For the foregoing reasons, and on the strength of the statutes and cases cited, I would hold that the trial court was without authority to grant or deny Kanz an award of fees and cost incurred in defending the suit for his removal as executor.

DISTRICT CLERK’S DISTRIBUTION OF THE ESTATE

The independent executor also complains that the trial court has no jurisdiction to order the district clerk to make any disposition of the estate’s funds other than to pay them over to him as independent executor. He is absolutely correct. The Texas Supreme Court has held that a probate court has no authority to maintain control over estate funds if there was a duly qualified independent executor. In the words of the Court:

Nothing in the Probate Code specifically and explicitly provides for the probate court to withhold the funds in its registry from the independent executor under the circumstances in this case. The probate court abused its discretion because it had no statutory authority to maintain control over the estate funds in its registry and to refuse to release the estate funds to the independent executor.

Tex. Prob.Code § 145(h); see D’Unger v. De Pena, 931 S.W.2d 533, 534-535 (Tex.1996).

On a case with remarkably similar facts, the money was in the registry of the court and the court ordered certain payments to be made from the funds on deposit and the remainder paid to the distributees, the Houston [14th] Court of Appeals held that the trial court’s actions were void and an abuse of discretion. As the Court explained:

We find no provision in the Probate Code authorizing the orders entered by respondent on July 10, 1991 and January 24, 1992. These orders wrongfully permitted the court to assume control, management and settlement of the estate, which is clearly against the intent of the decedent. In fact, by requiring the note payments to be paid into the registry of the court, respondent has in effect converted decedent’s estate from an independent administration into a dependent administration. Respondent’s orders prevented the independent executrix from exercising her statutory authority to manage and settle the estate independently of the court. The trial judge clearly abused her discretion.
While it appears that this estate should be closed, and that may have been the motivation for respondent’s actions, such orders are not statutorily authorized. We find that respondent’s July 10, 1991 and January 24, 1992 orders are void ...

Collins v. Baker, 825 S.W.2d 555, 556-557 (Tex.App. — Houston [14th] 1992, original proceeding).

The majority holds that if the trial court did not have the authority to order the clerk to make the distribution pursuant to § 149B (b), that the error is harmless because there was nothing further for the executor to do. If the trial court had no jurisdiction to act, we cannot apply the harmless error rule to his actions. Jurisdiction cannot be waived and is not subject to a harmless error analysis.

Additionally, without control over the disbursement of funds the independent executor cannot fulfill the duties of his office necessary to close the estate. Nor, if the executor so desires, can he bring and pay for the suit, now specifically authorized by Probate Code § 149E, to obtain a judicial declaration closing the estate and discharging the executor’s individual liability relating to the past administration of the estate. An independent executor is specifically authorized to retain a “reasonable reserve” of assets for this purpose. Tex. Prob.Code § 149E (Vernon 1980 & Supp. 2000). Because the independent executor is deprived of the funds necessary to preform his duties, the trial court’s actions cannot be harmless.

CONCLUSION

I would hold that the trial court lacked jurisdiction to grant or deny the applications for payment of attorneys fees and cost and that the trial court lacked jurisdiction to order the clerk to make a distribution of estate assets. Accordingly, I would reverse the judgment of the trial court, remand this cause with instructions for the trial court to vacate his void orders and to dismiss the applications and motion for lack of jurisdiction, and to further order the cause remanded to the county court for further proceedings of the estate, if any.

      . The trial court ordered a receiver to sell the family farm, the sole remaining asset of the estate. After the receiver sold the property, he placed the funds from the sale in the registry of the court.

      . Section 149C(c) of the Texas Probate Code states: "An independent executor who defends an action for his removal in good faith, whether successful or not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in the removal proceedings.”

      . The trial court’s findings of fact, relating to Kanz’ actions as independent executor, were as follows:

      6. Defendant Jack Kanz was guilty of either gross misconduct or gross mismanagement of his duties as independent executor in failing to wind up the matters of the estate and in trying to wrongfully close the estate.
      7. Defendant Jack Kanz failed to properly wind up the affairs of the estate and clear up title to the real estate.
      8. Defendant Jack Kanz wrongfully attempted to close the estate and distribute real estate to the legatees that he knew the estate did not own. In doing so, Defendant willfully failed to perform a legal duty, and intentionally committed a wrongful act, thereby breaching his fiduciary duty to the legatees and causing actual harm to the legatees, as evidenced by the considerable delay and expense required for the settling of the estate.
      9. Defendant Jack Kanz’ attempting to defend his own gross misconduct and gross mismanagement is not an action taken in good faith.
      10. Defendant Jack Kanz [sic] failure to clear up the title issues and properly wind up the affairs of the estate necessitated the filing of Plaintiff's action to exchange the real property to clear up the title and for the Court to appoint a receiver and order a sale and distribution.
      * ⅜ ⅜

      . Kanz argues that in Garcia, the trial court held that reimbursement of expenses was mandatory under section 149C(c). Garcia v. Garcia, 878 S.W.2d 678, 680 (Tex.App.—Corpus Christi 1994, no writ). We disagree.

        Garcia is distinguishable from our present case because the appellant in Garcia appealed the trial court’s failure to charge the appellee personally for the attorney’s fees she expended in her removal suit against him, while Kanz appealed the trial court's finding of fact regarding his good faith defense. Id. Because the appellant in Garcia failed to challenge the trial court’s finding that the appellee did not defend the removal action in good faith, the court determined that under section 149C(c), the estate was required to pay the appellee’s attorney’s fees. Id. We do not view Garcia as authority that section 149C(c) requires the mandatory reimbursement of attorney’s fees for the defense of a removal suit.

      . In their brief, the appellees posit an explanation for the trial court’s failure to remove Kanz as independent executor. They state that the trial court had appointed a receiver to sell the last remaining asset of the estate and that the proceeds from that sale were distributed to the beneficiaries. They suggest that because there were no remaining assets in the estate and essentially nothing left for an executor to do, that it would be a waste of judicial resources for the trial court to remove Kanz and appoint a new executor.

      . Because the parties are seeking judicial approval of attorneys fees and cost, there is some question as to whether the request should have been part of the earlier suit between these parties like any other proceeding in which attorney fees or cost are sought. Resolution of this issue is not relevant to this dissenting opinion and accordingly will not be discussed further.


source: Caselaw Access Project

author: REX D. DAVIS, Chief Justice.

license: Public Domain

text:
    Marshall CROW, Appellant, v. ROCKETT SPECIAL UTILITY DISTRICT, Appellee.
    No. 10-98-207-CV.
    Court of Appeals of Texas, Waco.
    April 12, 2000.
    Rehearing Overruled May 24, 2000.

      Andrew R. Korn, John W. Bowdich, Andrew R. Korn, P.C., Dallas, for appellant.
    Michael G. Oddo, Jennifer Rolf Dietze, Shannon Smitherman, Henry, Oddo, Austin & Fletcher, P.C., Dallas, for appellee.
    Before Chief Justice DAVIS Justice VANCE and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

Marshall Crow sued his former employer Rockett Special Utility District (“Rock-ett”) for age discrimination, breach of contract and fraud. The court granted Rockett’s motion for summary judgment and rendered judgment that Crow take nothing by his suit. Crow claims in six issues that the court erred in granting Rockett a summary judgment: (1) on his age discrimination claim because Rockett is subject to chapter 21 of the Labor Code and he established a prima facie case of discrimination; (2) on his contract claim because he was not an at-will employee and because Rockett waived its sovereign immunity by contract; (two issues) (3) on his fraud claim because the summary judgment record contains “more than a scintilla of evidence of fraud” and because the court did not allow him adequate time for discovery; (two issues) and (4) on any of his claims because “Rock-ett’s summary judgment evidence is fatally defective and inadmissible.”

BACKGROUND

Crow began his employment with Rock-ett in 1988. Rockett promulgated policies in 1990 which provide in pertinent part that a third violation of Rockett’s policies after prior verbal and written warnings “will be grounds for dismissal.” Crow signed a statement in which he “agreed to abide” by the policies on the same date the policies took effect. Rockett terminated Crow’s employment on February 14, 1994 for reasons now in dispute. Crow was fifty-five when his employment was terminated. Crow applied to Rockett for the position of general manager in November of that same year. Rockett hired another applicant for reasons now in dispute.

Crow filed suit against Rockett in January 1996 alleging breach of contract and age discrimination under chapter 21 of the Labor Code. See Tex. Lab.Code Ann. § 21.051 (Vernon 1996). Rockett moved for summary judgment claiming:

• chapter 21 of the Labor Code does not ’ apply to Rockett because it did not have the requisite number of employees during any of the pertinent time periods and because it is not “a county, municipality, state agency or instrumentality”;
• Crow was an at-will employee; and
• Rockett has sovereign immunity from any common law wrongful discharge claims.

Rockett attached five affidavits in support of its motion.

Crow then filed an amended petition adding a “common law fraud” allegation. On the same day, Crow filed a response to Rockett’s summary judgment motion contending:

• Rockett is subject to chapter 21 because it had the requisite number of employees and because it is a state instrumentality;
• Crow was not an at-will employee; and
• Rockett is not immune from a breach of contract claim.

Crow attached numerous affidavits and exhibits in support of his response. He also filed written objections to Rockett’s affidavits on several grounds.

The court signed an order granting Rockett’s motion as to Crow’s contract claim, but denying the motion with respect to his age discrimination claim. The court’s order left Crow’s fraud claim pending because it was raised after the filing of the summary judgment motion.

One month later, Rockett filed a second motion for summary judgment on the fraud claim. Again, Rockett asserted an entitlement to judgment as a matter of law because no material fact issue exists as to an essential element of Crow’s fraud claim. Rockett attached two affidavits in support of the second motion. Crow responded to Rockett’s second motion for summary judgment by asserting:

• material fact issues exist on Rockett’s “intent not to perform a promise at the time that promise was made” and on Crow’s “reliance to his detriment on [Rockett’s] misrepresentation”;
• Rockett has failed to conclusively disprove any element of his fraud claim; and
• Rockett’s “Summary Judgment evidence is fatally defective, and is insufficient to support Summary Judgment.”

Crow attached an affidavit in support of this response and referred the court to other evidence already in the record. He filed written objections to the affidavits attached to Rockett’s second motion.

Rockett next filed a motion asking the court to vacate and reconsider the partial summary judgment. Rockett premised this motion on a December 1997 letter from the court stating, “Upon receipt of the proper order, the Defendant in the above referenced cause will be granted Partial Summary Judgment as to causes of action alleged in Plaintiffs Original Petition.” Rockett attached the letter as an exhibit. Rockett asked the court to vacate the prior order and enter “an Order consistent with its letter ruling which grants Defendant’s Motion for Summary Judgment as to the breach of contract claim and age discrimination claim.”

The court heard Rockett’s second summary judgment motion and the motion to vacate simultaneously. The court granted both and entered a final summary judgment decreeing that Crow take nothing by his suit.

SUMMARY JUDGMENT EVIDENCE

Crow argues in his sixth issue that Rockett’s summary judgment evidence “is fatally defective and inadmissible.” He concedes that his objections “were never ruled on” by the trial court but counters that his objections go to the substance of Rockett’s affidavits and may be raised for the first time on appeal. See Ahumada v. Dow Chemical Co., 992 S.W.2d 555, 562 (Tex.App. — Houston [14th Dist.] 1999, pet. denied); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex.App. — Waco 1995, no writ).

Crow filed thirty pages of objections in response to the five affidavits attached to Rockett’s original summary judgment motion. He filed additional objections to the affidavits attached to Rockett’s second motion. Crow made one or more of the following objections to specifically-identified sentences in each of Rockett’s affidavits:

• statement includes self-serving speculation;
• statement lacks an affirmative showing that the witness has personal knowledge of these facts;
• statement is that of an interested witness that is not clear, positive, direct, or free from contradiction;
• statement, on its face, is based on hearsay;
• statement violates the best evidence rule;
• statement is argumentative;
• witness has not provided a predicate for expert opinion;
• statement constitutes unqualified expert opinion;
• statement is a legal conclusion; or
• statement is not of facts, but opinions and conclusions.

The first six objections complain of the form of Rockett’s summary judgment proof. Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex.1990) (per curiam) (personal knowledge); Ahumada, 992 S.W.2d at 562 (interested witness); Harris v. Spires Council of CoOwners, 981 S.W.2d 892, 897 (Tex.App.— Houston [1st Dist.] 1998, no pet.) (hearsay); Williamson v. New Times, Inc., 980 S.W.2d 706, 711 (Tex.App. — Fort Worth 1998, no pet.) (self-serving); Rodriguez v. Ed Hicks Imports, 767 S.W.2d 187, 190 (Tex.App. — Corpus Christi 1989, no writ) (best evidence). Because Crow failed to obtain a ruling on these objections, he has failed to preserve them for our review. See Ahumada, 992 S.W.2d at 562; Peerenboom, 910 S.W.2d at 160; see also Tex. R.App. P. 33.1(a)(2)(A). Accordingly, the portion of Rockett’s affidavits to which Crow raised only these objections “remain[s] a part of the summary judgment record.” Peerenboom, 910 S.W.2d at 160; accord Southwell v. University of the Incarnate Word, 974 S.W.2d 351, 354 (Tex.App. — San Antonio 1998, pet. denied).

The courts have generally held that an objection to the conclusory nature of a summary judgment affidavit or the failure of an expert’s affidavit to disclose the expert’s qualifications goes to the substance of the affidavit. See, e.g., Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 467 (Tex.App. — Texarkana 1998, pet. denied). Accordingly, we will address the merits of these objections. See Ahumada, 992 S.W.2d at 562; Cain, 969 S.W.2d at 467-68; Peerenboom, 910 S.W.2d at 160.

After reviewing the statements to which Crow raised these objections of substance, we conclude that the majority of the statements are statements of fact relating to the contents of Rockett’s administrative policies, the general manager’s authority to hire and fire employees, the qualifications Rockett required of applicants for the general manager’s position, the names and ages of the three applicants who were presented to the board of directors for interview, and lay opinion about the qualifications of these applicants (i.e., they were better qualified than Crow). Therefore, the statements do not constitute legal conclusions or unqualified expert opinion. Accordingly, Crow’s objections must fail as to these statements.

The remainder of Crow’s objections go to the first and second affidavits of Alton Adams, the president of Rockett’s board of directors. Crow objects to Adams’s statements describing Crow as an at-will employee. He objects to Adams’s characterization of Rockett’s administrative policies as “guidelines,” presumably as opposed to a modification of Crow’s at-will status. Finally, Crow objects to Adams’s statement that Rockett did not discriminate or intend to discriminate against “Crow or any other employee on the basis of age or for any other basis or reason.” We agree that these statements constitute legal conclusions. Accordingly, we will not consider them in reviewing the trial court’s decision. See Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex.App. — Houston [1st Dist.] 1997, no pet.).

We sustain Crow’s sixth issue in part and overrule it in part.

AGE DISCRIMINATION

Crow contends in his first issue that the court erred in granting summary judgment on his age discrimination claim because a fact issue exists on the question of whether Rockett terminated him or subsequently refused to hire him because of his age. See Tex. Lab.Code Ann. § 21.051. Rockett responds that it is not subject to chapter 21 of the Labor Code because it is not an “employer” as that term is defined in chapter 21. Rockett responds in the alternative that Crow failed to produce sufficient evidence to sustain his age discrimination claim.

Section 21.002(8)(D) provides that an employer under chapter 21 includes any “county, municipality, state agency, or state instrumentality.” Tex. Lab.Code Ann. § 21.002(8)(D) (Vernon Supp.2000). Rockett was created by authority of article XVI, section 59 of the Texas Constitution. See Tex. WateR Code Ann. § 65.011 (Vernon 1988); Tex. Const, art. XVI, § 59. A district so created is “an agent of the State ... exercising the State’s police power.” McMillan v. Northwest Harris County Mun. Util. Dist. No. 24, 988 S.W.2d 337, 341 (Tex.App. — Houston [1st Dist.] 1999, pet. denied). Thus, Rockett is, at a minimum, an instrumentality of the State subject to the provisions of chapter 21 of the Labor Code. See The New AMERICAN Roget’s College ThesauRus 260 (rev. ed.1978) (listing “agent” as synonym for “instrumentality”).

An employer commits discrimination under chapter 21 if the employer “fails or refuses to hire an individual” or “discharges an individual” “because' of race, color, disability, religion, sex, national origin, or age.” Tex. Lab.Code Ann. § 21.051(1). Chapter 21 has as one of its express purposes “the execution of the policies embodied in Title VII of the federal Civil Rights Act of 1964 as amended (42 U.S.C. Section 2000e et seq.).” Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991); see also Tex. Lab.Code Ann. § 21.001(1) (Vernon 1996); accord Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App. — Houston [14th Dist.] 1998, no pet.); Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 818 (Tex.App. — Corpus Christi 1996, writ denied).

Texas courts have thus followed federal precedents to describe the allocation of burdens between employer and employee under chapter 21 as follows:

In order to show a prima facie case of employment discrimination, the plaintiff must show 1) that he was a member of a protected class, 2) that he suffered an adverse employment action, and 3) that non-protected class employees were not treated similarly. Once the plaintiff has established a prima facie case, the burden of production shifts to the employer to articulate legitimate, nondiscriminatory reasons for any allegedly unequal treatment. If legitimate nondiscriminatory reasons are established by the employer, the burden then shifts back to the plaintiff to prove that the employer’s articulated reasons are a pretext for unlawful discrimination. Even though the burden of production shifts, the burden of persuasion remains continuously with the plaintiff.

Rios, 930 S.W.2d at 818 (citations omitted); accord Gold, 960 S.W.2d at 381; Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 251 (Tex.App. — Houston [1st Dist.] 1993, writ denied) (op. on reh’g).

When an employer moves for summary judgment on a discrimination claim under chapter 21, we have determined that the burden-shifting approach applies to only the third element. Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 438-39 (Tex.App. — Waco 2000, no pet. h.). Thus, we stated in Jenkins:

The employer-movant may attempt to show that non-protected employees were treated similarly. If so, the issue may be joined when the employee produces summary judgment evidence that raises a fact issue about how various employees were treated. The employer-movant may, however, with or without conceding that the plaintiff was treated differently, advance legitimate, nondiscriminatory reasons for the allegedly unequal treatment. If such a reason is advanced, then the employee may be called upon to produce summary judgment evidence that raises a fact issue about whether the employer’s articulated reasons are a pretext for unlawful discrimination. In either event, we must bear in mind that under our summary judgment practice, the burden of proof never shifts to the non-movant unless and until the movant has established its entitlement to a summary judgment on the issues expressly presented to the trial court.

Id. at 438-39.

Bearing these standards in mind, we first review the record with respect to Crow’s claim that Rockett terminated his employment in February 1994 because of his age. In this regard, Rockett alleged in its motion for summary judgment that it is entitled to judgment as a matter of law on this claim because it is not subject to chapter 21. We have already determined that chapter 21 does apply to Rockett because it is an instrumentality of the State. See Tex. Lab.Code Ann. § 21.002(8)(D). Thus, Rocket is not entitled to judgment as a matter of law on this basis.

Rockett’s motion also states:

[Crow] was discharged on February 14, 1994 for failing to call in his absence at the beginning of the work period, for not adequately fixing a leak, for taking four hours at a job that would normally take one to two hours, and for not following his employer’s instructions.

However, none of these alleged grounds for termination appears in Rockett’s summary judgment proof. Rather, Rockett’s affidavits focus on Crow’s at-will status and the reasons Crow was not later hired for the general manager’s position. Because Rockett offered no summary judgment evidence of legitimate, non-discriminatory reasons for Crow’s termination, we conclude Rockett failed to establish its entitlement to summary judgment on this aspect of Crow’s claim. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Wilcox v. Hempstead, 992 S.W.2d 652, 656 (Tex.App. — Fort Worth 1999, no pet.).

We now apply the same analysis to Crow’s claim that Rockett failed to hire him in November 1994 because of his age. Rockett again relied primarily on its argument that it is not subject to chapter 21. However, Rockett went further and proffered evidence of some of the reasons it chose another applicant over Crow for the general manager’s position. Rockett presented the affidavits of three of its board members who served on the selection committee for the general manager’s position. The board members stated in these affidavits:

• one of the criteria for the position was a minimum of four years’ supervisory experience;
• the committee received approximately fifty resumes for the position;
• the committee reviewed the resumes and decided to interview ten of the candidates;
• the committee did not invite Crow for an interview because the committee “was familiar with Mr. Crow and his work habits and [was] of the opinion that he was unable to get along with the employees and did not have any supervisory experience as required by the criteria”;
• Crow's age “was not a factor in the decision not to interview him”;
• after the interviews, the committee presented three of the candidates to the board for consideration;
• the candidate ultimately hired “appeared to be in his late SO’s or early 40’s”;
• the other two finalists “appeared to be in [their] 50⅛”;
• the ages of the three finalists played no role in the Board’s determination of which to hire; and
• “there were individuals with better qualifications than Mr. Crow who were not interviewed or did not make the final cut to be presented to the Board.”

Rockett’s summary judgment proof asserts essentially that Rockett did not hire Crow for the position because he did not have the supervisory experience required for the position and because other candidates were more qualified. These constitute legitimate, non-diseriminatory reasons for Rockett’s decision to hire someone other than Crow. See Gold, 960 S.W.2d at 383. The burden thus shifted to Crow to produce evidence that Rockett’s “articulated reasons are a pretext for unlawful discrimination.” Jenkins, at 438-39; accord Gold, 960 S.W.2d at 381; Rios, 930 S.W.2d at 818; Farrington, 865 S.W.2d at 251.

Crow provided the affidavit of Charles K. Davidson who stated that Arthur Black, a former Rockett manager, told him that he fired Crow because he was “too damn old.” Crow states in his affidavit that he was the manager of a manufacturing plant “for approximately four years” and at one time supervised 130 employees. This evidence raises a fact issue on whether Rock-ett’s stated rationale for not hiring him is pretextual.

With respect to Crow’s claim that Rock-ett terminated his employment in February 1994 because of his age, Rockett faded to produce any proper summary judgment evidence of legitimate, non-discriminatory reasons for Crow’s termination. See Cen-teq Realty, 899 S.W.2d at 197; Wilcox, 992 S.W.2d at 656. Thus, we conclude Rockett failed to establish its entitlement to summary judgment on this aspect of Crow’s claim.

Concerning Crowds claim that Rockett refused to hire him as general manager in November 1994 because of his age, Crow presented sufficient summary judgment evidence to raise a material fact question on the issue of whether Rockett’s stated rationale for hiring someone else is merely pretextual. For this reason, the court erred in granting summary judgment on this aspect of Crow’s claim. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997).

Accordingly, we sustain Crow’s first issue.

BREACH OF CONTRACT

Crow asserts in his second issue that the court erred in granting summary judgment because Rockett’s administrative policies altered his status as an at-will employee. This Court has ruled in a previous unpublished opinion that Rockett’s administrative policies do not alter the at-will employment relationship Rockett has with its employees. Both parties ae-knowledge our prior decision, and Crow seeks to distinguish it only by a footnote in which he cites decisions from courts in seven other states which he asserts “would hold to the contrary.”

Rockett’s administrative policies do not “specifically and expressly curtail[ ]” Rock-ett’s “right to terminate [its] employee[s].” Figueroa v. West, 902 S.W.2d 701, 705 (Tex.App. — El Paso 1995, no writ); accord McAlister v. Medina Elec. Coop., Inc., 830 S.W.2d 659, 664 (Tex.App. — San Antonio 1992, writ denied). Thus, the policies did not alter the at-will relationship Rockett had with Crow. See Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993) (per curiam). Accordingly, we overrule Crow’s second issue.

SOVEREIGN IMMUNITY

Crow claims in his third issue that the court erred in granting summary judgment because “Rockett waived any immunity it would be entitled to by contracting with Crow, a private citizen.” See Federal Sign v. Texas So. Univ., 951 S.W.2d 401, 405-06 (Tex.1997). Rockett responds that it has not waived its immunity from liability because there was no employment contract. We have already determined that Rockett did not enter a contract with Crow. Thus, Rockett has not contractually waived its immunity from liability. Cf. Federal Sign, 951 S.W.2d at 405-06 (immunity from liability waived by contract). Accordingly, we overrule Crow’s third issue.

ADEQUATE TIME FOR DISCOVERY

Crow avers in his fifth issue that the court erred in granting summary judgment on the fraud claim because the court did not allow him adequate time for discovery before ruling on “Rockett’s no evidence motion for summary judgment.” Rockett responds that Crow has not preserved this issue for our review.

We observe first that neither of Rock-ett’s summary judgment motions qualifies as a “no-evidence motion” under Rule of Civil Procedure 166a(i) because Rockett presented affidavits in support of each. See Ethridge v. Hamilton County Elec. Coop. Ass’n, 995 S.W.2d 292, 295 (Tex.App. — Waco 1999, no pet. h.). Therefore, the requirement of Rule 166a(i) that a party can present such a motion only “[a]f-ter adequate time for discovery” does not apply in this case. See Tex.R. Civ. P. 166a(i).

Nevertheless, Rule 166a(g) permits a court to grant a continuance for additional discovery to be had when the party opposing summary judgment presents affidavits asserting “that he cannot for reasons stated present by affidavit facts essential to justify his opposition.” Id. 166a(g). Accordingly, we will address Crow’s fifth issue as a claim that the court erroneously denied his request for a continuance under Rule 166a(g).

“When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.” Tenneco, Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex.1996).

Crow’s original petition alleged only his contract and age discrimination claims. Rockett filed its first motion for summary judgment on July 28,1997, almost nineteen months after Crow filed his original petition. Crow filed a motion for continuance on August 25. Crow filed an affidavit in support of the motion in which counsel asserted more time was needed to depose a particular Rockett employee, the president of Rockett’s board of directors, and “possibly other individuals who may have knowledge of relevant facts.” The court denied the motion on September 3. Crow filed his amended petition on September 11, alleging for the first time a cause of action for fraud.

Rockett filed its second motion for summary judgment on March 13, 1998. In the second motion, Rockett asked the court for summary judgment on Crow’s fraud claim. Crow did not request a continuance with respect to Rockett’s second motion.

For a party to preserve error, Rule of Appellate Procedure 33.1(a)(1) requires among other things that the party present a timely motion to the trial court stating the grounds for the ruling sought with adequate specificity and otherwise complying with the requirements of any applicable procedural rule. Tex.R.App. P. 33.1(a)(1). Crow failed to present a motion for continuance under Rule 166a(g) in response to Rockett’s second motion for summary judgment. Thus, he has failed to preserve his complaint for our review. Id. Accordingly, we overrule his fifth issue.

FRAUD

Crow contends in his fourth issue that the court erred in granting summary judgment because the record contains “more than a scintilla of evidence of fraud.” Rockett responds that Crow’s fraud claim is barred as a matter of law because he was an at-will employee.

Rockett relies on authority from the First Court of Appeals that “[a]n ‘at will’ employee is barred from bringing a cause of action for fraud against his employer based upon the employer’s decision to discharge the employee.” Leach v. Conoco, Inc., 892 S.W.2d 954, 961 (Tex.App.— Houston [1st Dist.] 1995, writ dism’d w.o.j.); accord Molder v. Southwestern Bell Tel. Co., 665 S.W.2d 175, 177 (Tex.App. — Houston [1st Dist.] 1983, writ ref d n.r.e.).

The Beaumont Court has limited the application of this rule, construing the decision of the Supreme Court in Johnson & Johnson Medical, Inc. v. Sanchez to allow, “at least under some circumstances, a fraud claim by an employee against an employer during an employment at will relationship.” See Offshore Petroleum Divers, Inc. v. Cromp, 952 S.W.2d 954, 955 (Tex.App. — Beaumont 1997, pet. denied) (citing Johnson & Johnson, 924 S.W.2d 925, 928-30 (Tex.1996)). We disagree. The employee’s relationship with her employer in Johnson & Johnson was governed by a collective bargaining agreement. Johnson & Johnson, 924 S.W.2d at 927. Thus, she was not an at-will employee. See Turner v. Owens-Corning Fiberglas Corp., 777 S.W.2d 792, 795 (Tex.App.— Beaumont 1989), writ granted w.r.m., 787 S.W.2d 955 (Tex.1990).

In an at-will employment relationship, “employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.” Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998); accord East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888). We have already determined that Rockett’s administrative policies did not alter the at-will relationship it had with Crow. If an at-will employee such as Crow were allowed to assert that his employer’s policies constitute fraudulent representations, then the at-will employment doctrine would be effectively eviscerated. See Leach, 892 S.W.2d at 961; Jones, 846 S.W.2d at 925; Molder, 665 S.W.2d at 177. This we decline to allow.

As a bar to recovery, Crow’s at-will status constitutes an affirmative defense. See Vaughn v. Stumu-Hughes, 937 S.W.2d 106, 108 (Tex.App. — Fort Worth 1996, writ denied). Summary judgment for the defendant is proper if he disproves at least one element of the plaintiffs claim or establishes all elements of an affirmative defense to the claim. American Tobacco, 951 S.W.2d at 425. Thus, to prevail on the affirmative defense of at-will employee status, Rockett must establish: (1) Crow was an at-will employee; and (2) the representations on which Crow relies for his fraud claim were made after he began his employment with Rockett. See Offshore Petroleum Divers, 952 S.W.2d at 956; Leach, 892 S.W.2d at 961.

Rockett’s summary judgment evidence establishes that the parties had no agreement prohibiting Rockett from terminating Crow’s employment at will. Rockett’s evidence also establishes that Rockett adopted the policies on which Crow bases his fraud claim more than two years after Crow began his employment with Rockett. Accordingly, the summary judgment evidence conclusively establishes Rockett’s affirmative defense. See American Tobacco, 951 S.W.2d at 425. Thus, we overrule Crow’s fourth issue.

CONCLUSION

We have determined that the trial court erred in rendering a summary judgment on Crow’s age discrimination claims because Crow raised material fact issues with respect to each of them. However, the trial court did not err in rendering a summary judgment on Crow’s contract and fraud claims. Accordingly, we will affirm the judgment in part and reverse and remand the judgment in part.

We affirm the portion of the summary judgment granted on Crow’s contract and fraud claims. We reverse the portion of the summary judgment granted on his age discrimination claims, sever, and remand that portion of this cause to the trial court for further proceedings consistent with this opinion. See Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex.1985); Blankenship v. Brazos Higher Educ. Auth., Inc., 975 S.W.2d 353, 364 (Tex.App. — Waco 1998, pet. denied).

      . Our research has disclosed no cases considering an "argumentative” objection to summary judgment evidence. Nevertheless, we hold that this is an objection to the form of the affidavit.

      . The prior decision is Draper v. Rockett Special Util Dist., No. 10-96-146-CV (Tex. App. — Waco Dec. 17, 1997, no pet.) (not designated for publication). Crow’s counsel represented Appellant Draper in this previous case.

      . To the contrary however, the Legislature has waived Rockett’s immunity from liability under chapter 21 of the Labor Code by making instrumentalities of the State subject to the provisions of that chapter. See Federal Sign v. Texas So. Univ., 951 S.W.2d 401, 405 (Tex.1997); Tex. Lab.Code Ann. § 21.002(8)(D) (Vernon Supp.2000).

      . The Beaumont Court also placed some reliance on Spoljaric v. Percival Tours, Inc. to support its position. Offshore Petroleum Divers, Inc. v. Cromp, 952 S.W.2d 954, 955 n. 1 (Tex.App. — Beaumont 1997, pet. denied) (citing Spoljaric, 708 S.W.2d 432 (Tex. 1986)). However, we find Spoljaric inapposite because it did not involve a fraud claim "based upon the employer’s decision to discharge the employee.” Leach v. Conoco, Inc., 892 S.W.2d 954, 961 (Tex.App. — Houston [1st Dist.] 1995, writ dism’d w.o.j.). Rather, Spol-jaric concerned an at-will employee who "walked off the job” then sued his employer for breach of an oral contract and fraudulent misrepresentation related to a bonus plan the employer had allegedly promised to implement. Spoljaric, 708 S.W.2d at 434.


text:
    William Arthur DAW, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 10-99-196-CR.
    Court of Appeals of Texas, Waco.
    April 12, 2000.

      Keith Bradley, Bradley & Bradley, Cle-burne, for appellant.
    Dale Hanna, Dist. Atty., David W. Vernon, Asst. Dist. Atty., Cleburne, for appel-lee.
    Before Chief Justice DAVIS Justice VANCE and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

William Arthur Daw, Jr. pleaded guilty to twenty-three counts of burglary of a habitation without the benefit of a plea recommendation from the State. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 30.02(a)(1), (3), 1993 Tex. Gen. Laws 3586, 3633 (amended 1999) (current version at Tex. Pen.Code Ann. § 30.02(a)(1), (3) (Vernon Supp.2000)). On counts one through twenty-two, the court sentenced Daw to ten years’ imprisonment.

On count twenty-three, the court likewise sentenced Daw to ten years’ imprisonment but suspended imposition of sentence and placed him on community supervision for a period of ten years. Daw claims in a single issue that the court erred in accepting his guilty plea without complying with article 1.15 of the Code of Criminal Procedure. See Tex.Code CRiM. Proc. Ann. art. 1.15 (Vernon Supp.2000).

BACKGROUND

According to the reporter’s record, Daw pleaded guilty in open court on March 22, 1999. After Daw entered his plea, the court showed him a document entitled a “Guilty Plea Memorandum.” The court referred to this document as “State’s Exhibit No. 1.” The clerk’s record contains such a document, and each page of this document bears the notation “State’s Exhibit 1” in the bottom-right margin. The court asked him whether his signature appears on the document “above where it says ‘Defendant.’ ” Daw responded in the affirmative. The court asked him whether he:

• had read and understood the paragraph immediately preceding each of his fifteen signatures on the memorandum;
• had an opportunity to consult with counsel concerning any questions he may have had about the information contained in the memorandum; and
• understood that by signing the memorandum he was “waiving certain statutory and constitutional rights” including the right to jury trial.

Daw answered each of these questions affirmatively.

Daw orally informed the court that he wished to testify and was voluntarily waiving his right to remain silent. Daw’s counsel called him to the stand “and tender[ed] him to [the prosecutor] for cross-examination.” Daw testified that he is guilty of the twenty-three counts of burglary alleged in the indictment. He further stated that he gave a written statement to a sheriffs deputy in which he described his participation in the offenses. He agreed that this statement is “true and correct as to [his] participation” in the offenses. The court accepted Daw’s guilty plea, found him guilty as charged, and rescheduled the matter for a punishment hearing the next day.

During the punishment hearing, the State introduced the testimony of nine witnesses and offered four exhibits in evidence. State’s exhibit number one offered at punishment is Daw’s written confession. Daw and his mother testified for the defense. He again affirmed the veracity of his confession. He also testified about his involvement in the burglaries. On cross-examination, he re-affirmed that he is guilty of the burglaries. The court sentenced him as indicated above.

WAIVER UNDER THE HELMS RULE

Daw contends in his sole issue that the court erred in accepting his guilty plea when the State did not formally offer in evidence the written waiver and stipulation of evidence required by article 1.15. The State relies on the. so-called Helms rule to argue that Daw has waived the right to complain about compliance with article 1.15 because noncompliance with the statute would be a nonjurisdictional ■ error which arose prior to entry of his guilty plea. See Helms v. State, 484 S.W.2d 925, 927 (Tex.Crim.App.1972).

According to the Helms rule, a voluntary guilty plea made without a plea recommendation conclusively establishes the guilt of the defendant and waives all nonjurisdictional errors which may have occurred before entry of the guilty plea. Lewis v. State, 911 S.W.2d 1, 4-5 (Tex.Crim.App.1995); Helms, 484 S.W.2d at 927. The Helms rule does not apply to errors “occurring at or after entry of [the] plea.” Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994).

In this ease, Daw questions whether the State properly presented the stipulation of evidence required by article 1.15. This constitutes an allegation of error at the time of the entry of the guilty plea. Thus, the Helms rule does not bar Daw from asserting his complaint on appeal. See id.

COMPLIANCE WITH ARTICLE 1.15

Article 1.15 requires the State “to introduce evidence into the record showing the guilt of the defendant.” TexCode CRiM. PROc. Ann. art. 1.15.

The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.

Id.

Daw’s “Guilty Plea Memorandum” contains a section entitled “Stipulation of Evidence and Waiver of Confrontation” which constitutes an almost verbatim waiver of the rights expressed in this section of article 1.15. Although the trial court did not ask Daw whether he understood that he was waiving these particular rights, the court did ask whether he understood that he was “waiving certain statutory and constitutional rights.” Thus, we conclude that Daw’s memorandum constitutes a sufficient written waiver of “the appearance, confrontation, and cross-examination of witnesses” as required by article 1.15.

Daw consented to a stipulation of evidence consistent with article 1.15. Such a stipulation “includes inter alia agreements as to what particular evidence or testimony would be, if presented in full in open court.” Stone v. State, 919 S.W.2d 424, 426 (Tex.Crim.App.1996) (quoting Robinson v. State, 739 S.W.2d 795, 800 n. 5 (Tex.Crim.App.1987) (per curiam)).

Although the record contains Daw’s consent to a stipulation, the record contains no stipulation of evidence. See Messer v. State, 729 S.W.2d 694, 698 (Tex.Crim.App.1986) (op. on reh’g). Instead, the record contains Daw’s “Sworn Judicial Confession” which appears in the memorandum and his testimony admitting his guilt of all twenty-three burglaries. A judicial confession filed in the clerk’s record constitutes “evidence introduced into the record” which may be considered by an appellate court in deciding whether the State met its evidentiary burden under article 1.15. Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App.1996).

A judicial confession, standing alone, suffices to establish the guilt of a defendant who has pleaded guilty and to satisfy article 1.15. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. [Panel Op.] 1980) (op. on reh’g); Monse v. State, 990 S.W.2d 315, 318 (Tex.App. — Corpus Christi 1999, pet. ref'd). In Daw’s case, the clerk’s record contains a written judicial confession, and the reporter’s record contains Daw’s oral judicial confession. Thus, the State satisfied its burden under article 1.15 “to introduce evidence into the record showing the guilt of the defendant.” Tex.Code CRIm. Peoc. Ann. art. 1.15.

Accordingly, we overrule Daw’s sole issue and affirm the judgment.

      . Daw argues that the record is confusing because the "Guilty Plea Memorandum" and his written confession are both identified in the record as “State's Exhibit Number 1” but the reporter's record contains only one such exhibit, the confession. We disagree with his assessment of the record. The court considered the memorandum marked "State's Exhibit No. 1” during the guilt-innocence phase on March 22. This document appears in the clerk’s record. As such, it constitutes " 'evidence introduced into the record’ and may be considered by the appellate court.” Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App.1996). The State offered Daw’s confession in evidence as its first punishment exhibit during the hearing on March 23.

      . The Court of Criminal Appeals has recently modified Helms to the extent that a defendant's right to challenge errors occurring pri- or to the entry of a plea of guilty or nolo contendere will be considered waived or forfeited "only when the judgment of guilt was rendered independent of, and is not supported by, the error.” Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App.2000).