author: BOB McCOY, Justice.

text:
    Josh LARUE, Appellant, v. CHIEF OIL & GAS, L.L.C., Big D Dozer Service Inc., Smith Oil Field & Environmental Services, Inc., and SPA Drilling, L.P., Appellees.
    No. 2-03-354-CV.
    Court of Appeals of Texas, Fort Worth.
    March 31, 2005.
    Rehearing Overruled June 9, 2005.

      Martin, Disiere, Jefferson & Wisdom, L.L.P., Bruce E. Ramage, Levon G. Hov-natanian, Richard N. Laminack, Thomas W. Pirtle, Joseph V. Gibson, Anna Dean Farmer, O’Quinn, Laminack & Pirtle, Houston, for appellant Josh LaRue.
    Renwick 7 Associates, Malcolm G. Ren-wick, Joe D. Anderson, Carrollton, for ap-pellee Chief Oil & Gas, L.L.C.
    Stradley & Wright, P.C., Henry S. Wehrmann, Dallas, for appellee Big D Dozier Service Inc.
    Touchstone Bernays, Johnston, Beall, Smith & Stollenwreck, L.L.P., S. Todd Parks, Daniel L. Gus, Dallas, for appellee Smith Oil Field & Environmental Services, Inc.
    Miller 7 McCarthy, P.C., Michael M. Miller, J.J. Knauff, Dallas, for appellee SPA Drilling, L.P.
    Panel B: LIVINGSTON, GARDNER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In six points Appellant challenges the trial court’s granting of summary judgment to all Appellees, and in a single cross point, Appellees assert that Appellant’s appeal is untimely and request this court to dismiss the appeal. We will affirm.

II. Factual Background

Chief Oil & Gas, L.L.C. (Chief) is a natural gas producer that, in November of 2000, completed a well on the Chief Pent Mineral Lease (the Lease), adjacent to FM 718 in Tarrant County. SPA Drilling, L.P. (SPA) “drilled up mud” on the Lease. After the well was completed SPA removed its equipment from the site around November 13 and 14, 2000, on flat bed trailers. During the removal process the well site was very muddy, and Big D Dozer Service, Inc. (Big D) pulled equipment away from the drilling site and toward the highway. An eight-foot wide gravel road existed from the entrance to the well. It is undisputed that mud from the equipment move got on FM 718, and as a result, Chief instructed Smith Oil Field & Environmental Services, Inc. (Smith Oil) to clean the highway with a backhoe as the drilling equipment was removed. Smith Oil additionally removed two casings from the site at the same time, which also caused mud to be on the highway.

On November 20, 2000, two days after the drilling equipment was removed, a technician for a utility company, Dan Estelle, was traveling south on FM 718 on the opposite side of the road from the Lease at about 55 m.p.h. Approximately eighty yards in front of Estelle’s vehicle, Josh LaRue (LaRue) was driving his pickup, also southbound and also traveling about 55 m.p.h. It was foggy and rainy, and the roads were slick because rain had washed over the road for several days. When LaRue’s pickup was about two hundred yards north of the Lease entrance, Estelle saw the rear end of LaRue’s pickup cross the highway’s center stripe; then the pickup slid off the road, crossed a bar ditch, became airborne, and struck a utility pole on the driver’s side before coming to rest on its side with the driver’s door facing upward. Estelle attempted to slow his heavy, large, six-wheeled “bucket truck,” but it slid sideways when he touched the brakes, and he had to “coax” his track off the road into a bar ditch to come to a controlled stop. Estelle got out of his track, approached LaRue’s pickup, and saw that LaRue was “in pretty bad shape.” He thought LaRue would die before he could be removed from his pickup. About fifty minutes later, paramedics arrived and were able to cut open the top of the pickup and transport LaRue to a hospital. It is not disputed that he was seriously injured.

Estelle could not say that he saw mud in the southbound lane at the accident site, but he said he did see some small dirt clods on the northbound side of the road that were smashed onto the asphalt, each looking like “a black pancake.” Estelle had previously witnessed a backhoe and some people with shovels and brooms getting mud clods off the highway, and “they were spread out a great distance out here north of that entrance [to the Lease].” According to Estelle, the mud was on both sides of the road near the entrance to the Lease and continued “a pretty good distance out there because the trucks are so long and everything, they have to cross over, you know, to be able to get out of that entrance there.”

It is LaRue’s contention that the mud on the highway caused the accident and that it was left there when the drilling rig and casing were removed from the Lease through the actions of Chief, SPA, and Big D. Further, LaRue alleges that Smith Oil failed to clean the road properly after the mud accumulated on the road. Smith Oil’s equipment operator, Raymond Martinez (Martinez), testified that he cleaned FM 718 as far as the mud was tracked immediately after each truck left the Lease and that he did not leave the work site each day until all the mud was removed. His supervisor, Scotty Duncan (Duncan), testified that after November 14 and until the day of the accident, there was no activity on the Lease, but this testimony was disputed by Estelle who said he saw tracks larger than pick-ups leaving the Lease the day before the accident. The cleanup procedure was observed by David Oster (Oster), an inspector with the Texas Department of Transportation (TX Dot), who approved the job when the cleanup was complete. He testified that he traveled north from the Lease past the future accident site on November 16 and did not see any mud in the southbound lane and, in fact, that he would have turned around and had Martinez clean the road had he seen any mud. On the other hand, LaRue obtained affidavits from two witnesses, Brian Price and Jason Rogers, who ai’-rived at the accident a short time after the wreck, and who stated that mud from the lease was present at the accident site on both sides of the road and was traceable to the Lease entrance. As a result of the accident, LaRue sued Chief, SPA, Big D, and Smith Oil under various negligence theories.

III. Procedural Background

Appellees Chief, SPA, Big D, and Smith Oil all filed no-evidence motions for summary judgment. The trial court signed orders on July 21, 2003 granting summary judgment in favor of Big D, Chief Oil, and SPA, and on July 24 signed another order granting summary judgment in favor of Smith Oil. Finally, on October 28, the trial court entered a “final judgment.” It is from the summary judgments that LaRue appeals.

IV. Request to Dismiss the Appeal

Appellees argue in their cross-point that this appeal should be dismissed because the notice of appeal was untimely filed on December 1, 2003, which would result in a lack of jurisdiction and dismissal. Davies v. Massey, 561 S.W.2d 799, 801 (Tex.1978) (orig. proceeding). They argue that after the final summary judgement was signed on July 21, 2003, the derivative claims for contribution and indemnity were extinguished by the granting of their motions for summary judgment, resulting in the commencement of the running of the appellate timetable from that July 21 date.

However, our Texas Supreme Court does not agree. “An order that adjudicates only the plaintiffs claims against the defendant does not adjudicate a counterclaim, cross-claim, or third party claim.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001). Apparently, Appellees also believed that to be the case because they subsequently filed notices of non-suit of their cross-actions with the trial court in August 2003, which notices are now argued to be nullities. Based on the language in Lehmann cited above, we hold that there was not a final judgment until October 28, 2003, when the trial court signed a “final judgment,” disposing of the last non-suit and stating that “all claims in this case have been addressed and disposed of and the Court hereby signs a final judgment. This instrument is a final judgment as contemplated in Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex.2001), and is subject to appeal.” Therefore, the notice of appeal filed by LaRue on December 1, 2003 was timely (due to holiday courthouse closings). Tex.R.App. P. 26; Tex.R. Civ. P. 4. This cross-point is overruled.

V. Adequate Time for Discovery

LaRue asserts in his sixth point that the summary judgments should be reversed because there was an inadequate time allowed for discovery to address the no-evidence motions for summary judgment. Specifically, LaRue complains that he was unable to depose four witnesses who were at the scene of the accident, key fact witnesses who were employees of each of the Appellees, and a corporate representatives of each Appellee. He also complains that Appellees filed their motions only seven to eight months after the last Appellee filed its original answer.

In determining whether there has been adequate time for discovery, certain factors warrant consideration: (1) the nature of the case, (2) the nature of the evidence needed to address the no-evidence motion, (3) how long the case has been on file, (4) how long the no-evidence motion has been on file, (5) whether the party filing the no-evidence motion has requested stricter deadlines for discovery, (6) the amount of discovery that has occurred, and (7) the nature of the discovery deadlines in place. Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex.App.-Dallas 2002, no pet.). Chief filed its original answer on December 27, 2001 in response to LaRue’s original petition, Smith answered on April 25, 2002, and Big D answered on May 8, 2002, the latter two in response to LaRue’s first amended petition, and finally SPA answered on September 30, 2002 in response to LaRue’s second amended petition. Likewise, the no-evidence motions were filed by SPA on April 24, 2003, by Chief on May 19, 2003, by Big D on May 22, 2003, and by Smith on May 28, 2003.

It is instructive to turn to the summary judgment rule itself. The comment to Rule 166a states, “A discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before.” Tex.R. Civ. P. 166a cmt. Here, an agreed scheduling order was signed January 21, 2003 and provided that dispositive motions should be filed by June 23, 2003, with June 30 being the deadline for the completion of all discovery, which was approximately one year and eight months following the original filing of the case on October 5, 2001. The discovery deadline had passed before the summary judgment motions were heard and ruled on.

We review a trial court’s determination that there has been an adequate time for discovery on case-by-case basis under an abuse of discretion standard, Wolfe v. Fairbanks Capital Corp., No. 2-03-100-CV, 2004 WL 221212 at *1 (Tex.App.-Fort Worth Feb. 5, 2004, no pet.) (not designated for publication), bearing in mind that a trial court abuses its discretion only when it acts in an unreasonable and arbitrary manner or when it acts without reference to any guiding rules or principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). A court of appeals may not reverse a trial court’s ruling under this standard merely because it disagrees with the decision. Id. In this case, LaRue had propounded and received responses to written discovery; the depositions of LaRue, Sheriff Tramel, Oster, Estelle, Mr. Taylor of the EMS crew, Mr. Thompson, Chief Oil’s vice president, Mr. Martinez, Mr. Brown, and Mr. Duncan of Smith Oil, had been taken; La-Rue had received a continuance on June 20, 2003 to obtain sworn statements; three witness affidavits had been obtained by LaRue; the case had been on file since October 2001; and the discovery period had ended per the agreed scheduling order — all prior to the hearing on the motions for summary judgment. Based on the forgoing, this court cannot say that the trial court abused its discretion by not agreeing that LaRue had inadequate time for discovery prior to the no-evidence motions for summary judgment being heard. LaRue’s sixth point is overruled. We now turn to the merits of the no-evidence motions and rulings thereon.

YI. Standard of Review

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002).

We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). Because the trial court, in granting the no-evidence motion for summary judgment, did not articulate the grounds therefor, the judgment of the trial court will be upheld on any ground contained in the no-evidence motions for summary judgment. Consequently, the nonmovant on appeal must negate all grounds on which the trial court could have relied in granting the summary judgment. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995).

A no-evidence point will be sustained when (a) there is complete absence of evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving weight to [all the] evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.

Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

VII. Was the Issue of Duty Before the Court?

In his first point, LaRue asserts that because Appellees did not assert specifically in their no-evidence motions for summary judgment that they owed no duty to LaRue, summary judgment cannot be affirmed on that ground because this issue was not properly before the trial court and is therefore not before this court. Cadenhead v. Hatcher, 13 S.W.3d 861, 863 (Tex.App.-Fort Worth 2000, no pet.); Shannon v. Law-Yone, 950 S.W.2d 429, 438 (Tex.App.-Fort Worth 1997, pet. denied). Appellees respond that a portion of each of their motions stated that “after adequate time for discovery Plaintiff cannot provide any evidence to support the elements of his claims” and argue that this is adequate notice that Appellees were asserting, for summary judgment purposes, that each owed no duty to LaRue, as duty is an element of LaRue’s negligence claim. The comment to Rule 166a states that “[t]he motion must be specific in challenging the evidentiary support for an element of a claim or defense” and further notes that “general no-evidence challenges to an opponent’s case” are insufficient. Tex.R. Civ. P. 166a cmt. (emphasis supplied). Rule 166a(i) itself states that “[t]he motion must state the elements as to which there is no evidence.” Tex.R. Crv. P. 166a(i) (emphasis supplied).

The elements of a negligence cause of action are (1) legal duty owed by one party to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). The existence of a duty is a question of law for the court to decide based on the specific facts of the case. Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex.), cert. denied, 498 U.S. 896, 111 S.Ct. 247, 112 L.Ed.2d 205 (1990). The question presented to this court is whether stating that there is no evidence to support the elements of the plaintiffs claims is of sufficient specificity to support an assertion that there is no evidence of a duty owed by the defendant/movant to the plaintiff under the negligence claim. Examining Appellees’s motions for summary judgment, each asserts in its respective paragraph III, entitled “No Evidence Exists That The Defendant Did Or Failed To Do Anything Which Proximately Caused Plaintiff Damages,” that

After adequate time for discovery, Plaintiff cannot provide any evidence to support the elements of his claims. Defendant, Chief Oil & Gas [and respectively in their motions, Smith Oil, Big D, and SPA] is fully entitled to summary judgment as a matter of law because under Plaintiffs negligence cause of action, there is no evidence of the following elements:
1. That Movant tracked mud and/or oil onto FM 718;
2. That Movant created a hazardous condition;
3. That Movant was responsible for the transportation of the oil rig;
4. That the mud and/or oil proximately caused Plaintiffs injuries; and
5. That Movant was responsible for the cleaning of FM 718.

Based on the foregoing, and recalling that “[t]he specificity requirement is designed to avoid conclusory no-evidence challenges to an opponent’s cause of action,” In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex.App.-Texarkana 1998, orig. proceeding), we find no specific allegation that there was no evidence of a duty owed by Appellees to LaRue.

The summary judgment pleading rules ... are consistent with the express language of Rule 166a(c) requiring that the motion for summary judgment state the specific grounds therefor and further the purpose of 166a(c) to provide adequate information for opposing the motion, and to define the issues. Carving exceptions to this simple requirement that the motion for summary judgment state the specific grounds frustrates the purposes of Rule 166a(c).

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). There was not a proper no-evidence motion for summary judgment asserting the absence of evidence of the existence of a duty before the trial court, and therefore the basis for granting summary judgment could not have been the non-existence of a duty owed by Appellees to LaRue.

Appellees assert that LaRue’s complaint about lack of specificity is waived through the failure to timely specially except to the trial court, citing McConnell v. Southside Independent School District, 858 S.W.2d at 342-43 and Dyegard Land Partnership v. Hoover, 39 S.W.3d 300, 307 n. 4 (Tex.App.-Fort Worth 2001, no pet.). We conclude this argument is unpersuasive. These cases involve grounds for traditional motions for summary judgment that are unclear or ambiguous. As pointed out by the McConnell court, “[E]ven in this situation, however, an appellate court cannot read between the lines, infer or glean from the pleadings or the proof any grounds for granting the summary judgment other than those grounds expressly set forth before the trial court [in the motion for summary judgment].” McConnell, 858 S.W.2d at 343 (emphasis supplied). Further, “[t]he practical effect of failure to except is that the non-movant loses his right to have the grounds for summary judgment narrowly focused, thereby running the risk of having an appellate court determine the grounds it believes were expressly presented in the summary judgment.” Id. (emphasis supplied). Such is certainly not the case here. The assertion of no duty has not been “expressly set forth” or “expressly presented,” and the motion is not “unclear or ambiguous.” We conclude that there has been no waiver of the right to complain about specificity.

Appellees next assert that the issue of duty may be raised not only in the motion, but also in replies to responses to the motion, citing Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex.1993). We would first observe that Stiles is a traditional motion for summary judgment case and that rule 166a(c) states that “[tissues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c) (emphasis supplied). The Stiles Court held that this restricts the “trial court’s ruling to issues raised in the motion, response, and any subsequent replies,” and that “[t]hough the rule does not expressly preclude an appellate court from affirming a summary judgment on grounds not raised in the trial court, we believe that the reasons for the rule in the trial court apply equally in the appellate court.” Stiles, 867 S.W.2d at 26,. The question, therefore, is whether a movant for a no-evidence motion for summary judgment may for the first time assert a no-evidence point in a reply to the non-movant’s response. Our Texas Supreme Court has addressed this specific language in Rule 166a(e), holding that

[t]he word written modifies not only the word motion, but also the words answer and other response. The issues required by the rule to be expressly presented are those pointed out to the trial court in written motions, written answers, or written responses to the motion. The term answer in the context of the rule refers to the answer to the motion, not an answer generally filed in response to a petition.

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 673 (Tex.1979) (emphasis supplied). Therefore, the phrase “or other response” means responses to the summary judgment motion, as therefore must “replies” referred to in Stiles. Stiles, 867 S.W.2d at 26. This reasoning should apply equally to no-evidence motions for summary judgment. We hold that the proper procedure to raise a new no-evidence point is to file an amended or supplemental no-evidence motion for summary judgment specifically setting forth the new element or elements of the non-movant’s cause of action or affirmative defense for which it is claimed no evidence has been presented, and that a new element asserted as a basis for a no-evidence motion may not first be presented in a reply to a response to a no-evidence motion for summary judgment.

Therefore, we agree with LaRue that the basis for granting Appellees’ no-evidence motion for summary judgment could not properly have been the absence of a duty by Appellees to LaRue because that issue was not before the trial court, that this issue was not waived by LaRue, and that a reply to a response to a no-evidence motion for summary judgment may not contain a new no-evidence issue. LaRue’s first point is sustained.

VIII. Duty

LaRue asserts in his second point that the trial court erred if it granted the Ap-pellees’ no-evidence motions for summary judgment on the basis that they owed no duty to LaRue. We do not reach this point because by sustaining LaRue’s first point, we conclude that the question of any duty owed by Appellees to LaRue was not properly before the trial court and could not therefore have been the basis for the granting of the no-evidence motions for summary judgment.

IX. Breach of Duty

We next turn to LaRue’s third point, in which he contends that he presented more than a scintilla of evidence that the various duties allegedly owed him by Appellees were breached. LaRue first asserts that Chief breached a duty to exercise reasonable care in its control over Smith Oil’s cleaning of the highway, citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). There was some evidence presented that mud existed on the highway at the accident scene that was traceable to the Lease, as set forth in the affidavit testimony of witnesses Price and Rogers. Based on the Lampasas factors previously discussed, we may uphold the granting of the no-evidence motion for summary judgment if “the evidence offered to prove a vital fact is no more than a mere scintilla.” Lampasas, 988 S.W.2d at 432.

Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak that it does no more than create a mere surmise or suspicion of its existence and, in legal effect, is no evidence. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions as to the existence of the vital fact.

Lias v. State Farm Mut. Auto. Ins. Co., 45 S.W.3d 330, 333 (Tex.App.-Dallas 2001, no pet.) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). Under these circumstances, we cannot say that the testimony of two witnesses who were at the accident scene shortly after its occurrence amounts to no more than a “surmise or suspicion” that Chief failed to exercise reasonable care over Smith Oil’s work. The absence of evidence of a breach of this alleged duty could not have be a proper ground for the grant of summary judgment.

LaRue next asserts that he presented sufficient evidence that Chief breached both its duty as the controller of the Lease premises not to jeopardize or endanger the safety of persons traveling on the adjacent highway, as articulated in Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981), and its duty to prevent activities and conditions that present a dangerous condition to those outside the property, again citing Kraus, 616 S.W.2d at 910, and relying in part on section 414a of the Restatement (Second) of Torts, R2d ToRts § 414a (2003). Again, without deciding whether such duties existed, the same evidentiary testimony in the Price and Rogers affidavits, along with the undisputed Chief/ Smith Oil relationship is sufficient to meet LaRue’s burden of the breach of the alleged duties when faced with a no-evidence motion for summary judgment. LaRue further argues that Chief breached a duty to him to guard against peculiar risks of harm arising from independent contractor activities, as set forth in Scott Fetzer Co. v. Read, 945 S.W.2d 854, 860-61 (Tex.App.Austin 1997), aff'd, 990 S.W.2d 732 (Tex.1998), based on section 416a of the Restatement (Second) of Torts; see R2d ToRts. We agree that the same evidence is more than a scintilla of evidence of the breach of this alleged duty and is sufficient to defeat the no-evidence motions.

Finally, LaRue alleges that each appel-lee breached a duty to avoid creating hazardous conditions on the highway, citing section 600.001(a) of the Texas Transportation Code: “[A] person who drops or permits to be dropped or thrown on a highway destructive or injurious material shall immediately remove the material or cause it to be removed.” Texas TRANsp. Code Ann. § 600.001(a) (Vernon 1999). This is somewhat similar to case law regarding the breach of a duty to refrain from using a highway in a manner that creates conditions that are dangerous to others who use the highway or to warn of dangerous conditions if they are created. See Strakos v. Gehring, 360 S.W.2d 787, 803-04 (Tex.1962) (unfilled post holes adjacent to a highway); Jalco, Inc. v. Rodriguez, 578 S.W.2d 452, 453 (Tex.Civ.App.-Waco 1979, no writ) (missing man hole cover); Kirby Lumber Corp. v. Walters, 277 S.W.2d 796, 799 (Tex.Civ.App.-Beaumont 1955, no writ) (mud on highway). There are no cases that have construed the terms “destructive or injurious material” in this code section. We are mindful that our Texas Supreme Court has recently determined that “holding a land owner accountable for naturally accumulating mud that remains in its natural state would be a heavy burden because rain is beyond the control of landowners,” and has held that “[t]he ordinary mud found on the concrete slab outside of the M.O. Dental Lab [that] accumulated due to rain and remained in its natural state ... was not a condition that posed an unreasonable risk of harm to Rape necessary to sustain her premise liability action.” M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex.2004). The mud here, according to Price and Rogers, was not “naturally accumulating” and did not accumulate “due to rain” but originated 200 feet away from the accident site at the Lease entrance. While mud deposited on a highway may not be analogous to a missing man hole cover or open fence post holes, these facts are close to those in Kirby Lumber, and we do find that under these circumstances the affidavit testimony previously discussed is more than a scintilla of evidence that there existed “destructive or injurious material” from the Lease on the highway that Smith Oil had been directed by Chief to remove. Hence, there is sufficient evidence of a breach of this alleged duty to avoid summary judgment in favor of Chief.

While there is disputed testimony as to the proximity to the highway to which Big D moved the well drilling equipment, there is no evidence that Big D’s equipment deposited any mud on the highway directly. LaRue points to testimony from Estelle, who stated that “one particular morning when I was headed back home, they were actually using a bulldozer to pull the truck to the gate entrance.” This, however, cannot be said to be evidence that Big D dropped, or permitted to be dropped or thrown, “destructive or injurious materials” on the highway and is no evidence of a breach of duty owed by Big D to LaRue. On the other hand, Smith Oil allowed mud to reach the highway from the casings it removed, and there is more than a scintilla of evidence of Smith Oil’s breach of this statutory provision. Likewise, SPA removed the drilling equipment, and its trucks also left mud on the highway. Consequently, there is sufficient evidence of a breach of this alleged duty to avoid summary judgment. We sustain La-Rue’s third point as to Chief, SPA, and Smith Oil and overrule this point as to Big D.

X. Proximate Cause

In LaRue’s fourth point, he asserts that there was sufficient evidence of proximate causation to meet Appellees’ no-evidence motions for summary judgment. Proximate cause has two elements, cause-in-fact and foreseeability. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). The test for cause-in-fact is whether the act or omission was a substantial factor in causing the injuries without which the harm would not have occurred. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001). Likewise, foreseeability means that an actor as a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others. Id. at 785. The Price and Rogers affidavits represent some evidence that there was mud on the highway at the location of LaRue’s accident, but Price and Rogers were not witnesses to the accident. The only identified witnesses to the accident were LaRue and Estelle. Estelle stated that he could not say that there was mud on the southbound lane of the roadway where LaRue was traveling and said that he did not know what caused LaRue to slide off the road. There is no testimony in the record before us from LaRue. There is no direct evidence of causation or circumstantial evidence, such as testimony regarding skidmarks in mud in the southbound lane. LaRue basically argues that because there was some evidence from the affidavit testimony that there was mud on both sides of the road (Price affidavit) and mud on FM 718 (Rogers and Gibson affidavits) that this is tantamount to some evidence of cause-in-fact, that is, that mud caused the accident. We conclude that it amounts to no more than surmise and suspicion. The trial court therefore could have correctly based the summary judgment on the ground that there was no evidence of proximate cause. Accordingly, we overrule LaRue’s fourth point.

XI. Gross Negligence

In his fifth point, LaRue argues that he sustained his burden to produce sufficient evidence of gross negligence on the part of Appellees to avoid summary judgment. Gross negligence contains two elements: (1) from the actor’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the actor must have actual subjective awareness of the risk involved but nevertheless proceed in conscious indifference of the rights and safety or welfare of others. Harrison, 70 S.W.3d at 785. Circumstantial evidence may be sufficient to prove both elements, and some evidence of care by movants does not necessarily defeat a showing of gross negligence. Id Extreme risk means the likelihood of serious injury to the complaining party, and actual awareness means that the actor knew about the peril but the acts or omissions complained of demonstrated that the defendant did not care. Id

Further, in order to obtain an award of damages based on the finding of gross negligence, LaRue must demonstrate by clear and convincing evidence that the harm he suffered resulted from malice. Malice is defined as “a specific intent by [Appellees] to cause substantial injury to Josh LaRue,” see PatteRN JuRY Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 4.2b (2003), or an act or omission by Appellees that constitutes gross negligence as previously defined.

It is undisputed that Chief hired Smith Oil to use a backhoe to clean dirt from the highway. The effectiveness of this operation is disputed. However, there is no evidence that Chief or Smith Oil was indifferent to whether the job was done properly to the peril of LaRue or had specific intent to harm LaRue. Further, there is no evidence that Big D or SPA was in any way involved in insuring that the cleanup took place properly or that they were indifferent to the safety of La-Rue, or intended to harm him. In short, there is no evidence of gross negligence in this case, and LaRue’s fifth point is overruled.

XII. Conclusion

Having overruled LaRue’s fourth and fifth points with respect to all Appellees and LaRue’s third point with respect to Big D, the granting of summary judgment by the trial court as to all Appellees is affirmed.

      . LaRue continually refers to mud and oil on the highway in his briefs. However, the evidence of oil on the road consists of one line of testimony from Duncan, a supervisor with Smith Oil, who said in response to the question "Where was that mud coming from?” that it was coming from "the oil casing itself,” and from the affidavit of Brian Price who stated, "I personally noticed mud and oil on FM 718, spread for a great distance and on both sides of the road ... I could also see the origin of the mud, which was the Chief Pent Lease.” Because of the paucity of evidence concerning the existence and origin of the oil and its causal relationship to the accident, this opinion will only address the existence of mud on the highway.


source: Caselaw Access Project

author: LESLIE BROCK YATES, Justice.

license: Public Domain

text:
    CHRISTUS HEALTH GULF COAST, Christus Health Southeast Texas, Gulf Coast Division, Inc., Memorial Hermann Hospital System, and Baptist Hospitals of Southeast Texas, Appellants, v. AETNA, INC. and Aetna Health, Inc., Appellees.
    No. 14-03-01281-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 14, 2005.
    Rehearing En Banc Overruled July 21, 2005.

      David E. Warden, Scott M. Clearman, Brian Dean Walsh, Houston, for appellants.
    John B. Shely, Kendall Matthew Gray, Houston, for appellees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION ON REHEARING

LESLIE BROCK YATES, Justice.

Appellants, Christus Health Gulf Coast, Christus Health Southeast Texas, Gulf Coast Division, Inc., Memorial Hermann Hospital System, and Baptist Hospitals of Southeast Texas (collectively “the Hospitals”), sued appellees, Aetna, Inc. and Aet-na Health, Inc. (collectively “Aetna”), for breach of contract, quantum meruit, breach of fiduciary duty, and to collect on accounts arising from Aetna’s failure to pay the Hospitals for health care services they provided to Medicare patients enrolled in an Aetna health maintenance organization (“HMO”). Aetna moved to dismiss for lack of subject matter jurisdiction, arguing that the Hospitals failed to exhaust federal administrative remedies provided under the Medicare program. The trial court agreed and dismissed for lack of jurisdiction. In three issues, the Hospitals claim the trial court erred in granting Aetna’s motion to dismiss. Because we find that the Hospitals were required to first exhaust administrative remedies, we affirm.

In our opinion of December 28, 2004, we affirmed the trial court’s judgment. On January 7, 2005, the Hospitals filed a motion for rehearing. We overrule the Hospitals’ motion, withdraw our previous opinion, and issue this opinion on rehearing, affirming the trial court’s judgment.

I. THE MEDICARE PROGRAM

Title XVIII of the Social Security Act, 42 U.S.C. §§ 1395-1395ggg (2000), commonly known as the Medicare program, is administered by the Department of Health and Human Services (“HHS”). The Medicare program traditionally consisted of two parts. Part A provides insurance against the cost of institutional health services, such as hospitals and nursing homes. Part B provides, for a monthly premium, supplemental benefits for additional medical needs, such as physician services and laboratory tests. See Schweiker v. McClure, 456 U.S. 188, 189-90, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982) (describing Medicare Parts A and B).

In 1997, Congress amended the statute and added a new Part C called the Medicare + Choice or “M+C” program. Medicare Program; Medicare + Choice Program, Final Rule with Comment Period, 65 Fed.Reg. 40170, 40171 (June 29, 2000). Congress created the M + C program to “allow beneficiaries to have access to a wide array of private health plan choices” in addition to traditional Medicare and to “enable the Medicare program to utilize innovations that have helped the private market contain costs and expand health care delivery options.” H.R. Conf. Rep. No. 105-217, at 585 (1997), reprinted in 1997 U.S.C.C.A.N. 205-06. To accomplish these goals, the Health Care Financing Administration (“HCFA”), now called the Centers for Medicare and Medicaid Services, contracts with HMOs and other private firms to provide health care to Medicare patients who choose coverage under Part C as opposed to the traditional route of Parts A and B. Medicare + Choice Program, 65 Fed.Reg. at 40172. The entity that contracts with the HCFA is called an M + C organization. M + C organizations may then contract with providers to provide health care services to their Medicare enrollees under the terms and conditions negotiated in the contract. Such providers are contract providers. Medicare patients may also seek health care services from providers with no contractual relationship with an M+C organization. These are noncontract providers.

II. Factual Background

NYLCare 65 is an HMO owned by Aet-na, and NYLCare 65 became an M+C organization by virtue of a contract with the HCFA. Aetna then contracted with North America Medical Management (“NAMM”) to administer this health care program. Aetna paid NAMM a monthly capitation payment, and NAMM agreed to be responsible for paying claims from health care providers for services to M + C patients. NAMM then contracted with various health care providers to offer these services. Each of the Hospitals had such a contract with NAMM.

NAMM became insolvent and never responded to approximately 6,000 claims from the Hospitals totaling over $13 million. The Hospitals then demanded that Aetna pay the claims on the theory that Aetna was statutorily hable to pay for the health care services provided to its patients, despite having contracted with NAMM to perform that service. Aetna refused to pay.

The Hospitals sued Aetna for breach of contract, quantum meruit, breach of fiduciary duty, and to collect on accounts. The trial court granted Aetna’s motion to dismiss for lack of subject matter jurisdiction because the Hospitals did not first pursue their claims through the administrative process established under the Medicare program. The Hospitals claim this was eiTor because, for a variety of reasons, this administrative process does not apply to them.

III. Analysis

A. The Hospitals’ claims arise under the Medicare Act.

Courts have subject matter jurisdiction to review claims “arising under” the Medicare Act only after the claimant unsuccessfully seeks payment and then exhausts the administrative remedies provided under the Act. See Heckler v. Ringer, 466 U.S. 602, 614-15, 104 S.Ct. 2018, 80 L.Ed.2d 622 (1984). A claim arises under the Medicare Act if “both the standing and the substantive basis for the presentation” of the legal claim is the Act or if it is “inextricably intertwined” with a claim for benefits. See id. at 614-15, 624, 104 S.Ct. 2013. In applying this standard, it does not matter how a claim is characterized. If, “at bottom,” the plaintiff seeks Medicare benefits, the claim arises under the Act and must go through the administrative process. Id. at 614, 104 S.Ct. 2013.

The Supreme Court has instructed that the term “arising under” be construed “quite broadly.” Id. at 615, 104 S.Ct. 2013. This promotes the important policy considerations of avoiding premature interference with agency processes and uniformity and consistency in administration of the Medicare program. See Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (“Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.”); Maximum Home Health Care, Inc. v. Shalala, 272 F.3d 318, 321 (6th Cir.2001) (“The purpose of a regulatory scheme such as Medicare is to provide uniform rules by which all participants may be treated equally.”); Friedrich v. Sec’y of Health & Human Servs., 894 F.2d 829, 837 (6th Cir.1990) (“National standards are essential if there is to be uniformity and equality in the administration of Medicare.”).

Such uniformity is crucial on decisions regarding Medicare coverage so that a Medicare patient’s right to health care services does not vary from state to state. Thus, all coverage decisions must go through the administrative procedures of the Medicare program. See 42 C.F.R. § 422.402(b)(3) (2003) (stating that the Medicare Act preempts all state law coverage determinations); Medicare + Choice Program, 65 Fed.Reg. at 40261 (explaining that state courts are preempted from deciding any claim “in which the legal issue before the court is ... whether services are covered under the terms of an M + C contract”); Medicare Program; Establishment of the Medicare + Choice Program, Interim Final Rule with Comment Period, 63 Fed.Reg. 34968, 35013 (June 26, 1998) (noting that the Medicare appeals process is the exclusive remedy for any dispute over whether a service is covered under a Medicare contract). For these important policy reasons, we resolve any doubts in favor of requiring claims to first proceed through the administrative process. See New York v. Lutheran Ctr. for the Aging, Inc., 957 F.Supp. 393, 397 (E.D.N.Y.1997) (holding that “regardless of whether the services at issue are ultimately determined to be covered by Medicare, they still must be litigated through the administrative process”).

We hold that the Hospitals’ claims arise under the Medicare Act. Though their claims are characterized under state law, such as for breach of contract, they are “inextricably intertwined” with a claim for benefits because, “at bottom,” they are seeking payment for services provided to Medicare patients. Heckler, 466 U.S. at 614, 104 S.Ct. 2013. As such, the Hospitals were required to first exhaust the administrative process. See id. Though Heckler was decided under Parts A and B of Medicare, at least three other courts have applied this same analysis to claims under Part C, including one involving NAMM, the very same intermediary in this case. See In re Heritage Southwest Med. Group, P.A., 309 B.R. 916 (Bankr.N.D.Tex.2004); Foley v. Southwest Tex. HMO, Inc., 226 F.Supp.2d 886 (E.D.Tex.2002); Lifecare Hosps., Inc. v. Ochsner Health Plan, Inc., 139 F.Supp.2d 768 (W.D.La.2001). We agree with their analysis of this issue and conclude that the trial court did not have subject matter jurisdiction over the Hospitals’ claims.

B. The Hospitals are not excused from exhausting administrative remedies.

The Hospitals argue that, for a variety of reasons, the administrative process does not apply to them and their claims. A detailed description of the administrative process is necessary to put the Hospitals’ arguments in context.

1. The administrative process

The Medicare program contains two separate administrative procedures that are relevant in this case: one for pure payment disputes and one for appealing “organization determinations” from the M + C organization.

When processing payment claims from noncontract providers — that is, providers with no contractual relationship with an M + C organization — an M + C organization must provide “prompt payment.” 42 U.S.C. § 1395w-27(f)(l); 42 C.F.R. § 422.520(a) (2003). The standard for assessing whether payment is prompt is set forth in federal regulations. See 42 C.F.R. § 422.520(a). When a payment dispute occurs, the provider can seek relief from the HCFA. If, after notice and an opportunity for a hearing, the HCFA determines an M + C organization has failed to make prompt payment, it can provide direct payment of the claim and then reduce the payments the HCFA makes to the M + C organization pursuant to their contract. 42 U.S.C. § 1395w-27(f)(2); 42 C.F.R. § 422.520(c) (2003). This administrative procedure is not available for pure payment disputes between an M + C organization and a contract provider because although the contract between the M + C organization and the provider must contain a prompt payment provision, the content of that provision is determined by the contract and is therefore a matter of state law. See 42 C.F.R. § 422.520(b) (2003).

Procedures for M+C organizations to determine whether a Medicare patient is entitled to receive a service and the amount, if any, the patient is required to pay are called “organization determinations.” 42 U.S.C. § 1395w-22(g)(l)(A); 42 C.F.R. § 422.566(a), (b) (2003). Disputes over organization determinations are governed by a different and more elaborate administrative procedure. Patients can request a reconsideration of an adverse organization determination and can then appeal through several steps, concluding with judicial review in federal court in some cases. 42 U.S.C. § 1395w-22(g)(2)-(5); 42 C.F.R. §§ 422.578-.626 (2003). Though this process is obviously designed to protect patients’ rights regarding decisions such as coverage, providers can have an interest as well. As such, providers can request an organization determination and, in some circumstances, are parties to the organization determination with full rights of appeal. See 42 C.F.R. §§ 422.574(b), (d), 422.578-.626 (2003).

2. The Hospitals must exhaust administrative remedies.

The Hospitals argue that they are not required to resort to the administrative process because (1) the administrative process applies only to patients and not providers, (2) this is not a coverage dispute, and (3) no organization determination was made to invoke the administrative process. We disagree with each of these arguments.

The Hospitals’ claim that the administrative process does not apply to providers is belied by the plain language of the statute and regulations. As discussed above, noncontract providers can complain to the HCFA about pure payment disputes. In the organization determination appeals process, providers may request an organization determination, and providers who are assignees of the patient or otherwise have an appealable interest are parties and may appeal an adverse organization determination. See 42 C.F.R. §§ 422.566(c), 422.574(b), (d) (2003); see also Establishment of the Medicare + Choice Program, 63 Fed.Reg. at 35026 (stating the provision allowing any other provider with an appealable interest to be a party is intended to be broad). Though the interests of patients is the primary focus of this administrative process, providers have subsidiary interests (such as in being able to provide services and in being paid for them) that are clearly contemplated and specifically provided for in this process, Thus, a contract provider in a payment dispute with an M+C organization has an administrative remedy if that dispute is in conjunction with a patient-focused dispute such as coverage. Three other courts considering Medicare + Choice provider payment disputes have also required the providers to exhaust administrative remedies. See Heritage, 309 B.R. at 919-20; Foley, 226 F.Supp.2d at 903-07; Lifecare, 139 F.Supp.2d at 770-72.

The Hospitals also contend that this is not a coverage dispute but is merely a prompt payment dispute and therefore, as contract providers, they have no administrative remedies to exhaust. The Medicare Act mandates that providers supplying services pursuant to a contract with an M+C organization cover at least all services covered under Medicare Parts A and B. 42 C.F.R. § 422.100(a), (c) (2003). The Texas statute that provides the substance of Aetna’s prompt payment obligation in this case states that an HMO that violates its prompt payment obligations is liable “for the full amount of billed charges ..., less ... any charge for a service that is not covered by the health care plan.” Thus, even if Aetna violated its prompt payment obligation, according to the plain wording of the statute, it may still assert a defense to payment if the services are not covered. If coverage issues are even possible, for the important policy reasons promoted by the administrative process and ensuring uniformity of Medicare coverage, the dispute must go through the administrative process. See Weinberger, 422 U.S. at 765, 95 S.Ct. 2457; Maximum Home Health Care, 272 F.3d at 321; Friedrich, 894 F.2d at 837; Lutheran Ctr. for the Aging, 957 F.Supp. at 397.

In a related argument, the Hospitals assert that since the administrative process is designed for coverage-type issues, other matters, such as contract interpretation, are beyond the HCFA’s expertise, and therefore exhaustion would be futile. Even if some of their claims are not within the typical scope of the HCFA’s review, the agency must first be allowed to consider those issues on which it has expertise before judicial review; otherwise, the exhaustion process would be undermined. See Kaiser v. Blue Cross of Cal., 347 F.3d 1107, 1115 & n. 4 (9th Cir.2003); see also Lifecare, 139 F.Supp.2d at 773 (“While it is clear that Lifecare would prefer an immediate appeal to the district court rather than the often lengthy administrative review process, in light of the fact that Life-care may, in fact, seek judicial review after pursuing its administrative remedies, the court holds that it would not be an exercise in futility for Lifecare to comply with the Medicare Act’s exhaustion requirements.”).

Finally, the Hospitals claim that no organization determination occurred, which is a necessary precursor of invoking the procedure for challenging an adverse organization determination. They contend that NAMM never processed the claims and that nonpayment by default is not an organization determination. Even if NAMM did not make an organization determination by failing to pay the Hospitals’ claims, Aetna clearly made one when it refused the Hospitals’ subsequent demand of payment for services provided to Medicare patients. See Heritage, 309 B.R. at 920; Lifecare, 139 F.Supp.2d at 772-73; 42 C.F.R. § 422.566(b)(2), (3).

The Hospitals point to two authorities they claim support their argument that their dispute with Aetna is not subject to the administrative process. First, four of the five Hospitals submitted a letter to the HCFA requesting that the agency intervene and hold Aetna liable on the claims NAMM failed to pay. The agency’s response stated that “[t]his type of contract dispute between parties is an issue for the state judiciary to decide” because the regulations “do not ... contemplate Federal intervention in provider payment disputes involving contracted M + C providers that voluntarily enter into contracts with M+C organizations.” That response is accurate if the parties’ dispute is solely a prompt payment issue. See 42 U.S.C. § 1395w-27(f); 42 C.F.R. § 422.520. However, the HCFA, without the benefit of Aetna’s perspective on the dispute, apparently did not consider the potential coverage issues, which we have concluded must be resolved through the portion of the administrative process governing organization determinations. Further, the Hospitals did not request the HCFA’s opinion regarding exhaustion of administrative remedies, and the HCFA never mentioned the issue in its responding letter. In any event, we are not bound by an informal, ex parte letter from an agency. See Lifecare, 139 F.Supp.2d at 772-73.

Second, the Hospitals rely on a sentence from an HCFA manual that says “contracted providers do not have appeal rights.” Medicare Managed Care Manual, ch. 13, § 70.1, available at http://www.cms.hhs.gov/manuals/. This blanket statement that contract providers have no right of appeal is in direct conflict with the regulations. Though the administrative procedure for pure payment disputes is not available to contract providers, the regulation defining parties to an organization determination, who by definition have appeal rights, contains no such limitation on a provider’s rights, and the manual makes no attempt to explain its position. Compare 42 C.F.R. § 422.520, with 42 C.F.R. § 422.574. If an agency manual conflicts with regulations, the regulations control. See Cent. Laborers’ Pension Fund v. Heinz, 541 U.S. 739, 748, 124 S.Ct. 2230, 2238, 159 L.Ed.2d 46 (2004) (“[N]either an unreasoned statement in the manual nor allegedly longstanding agency practice can trump a formal regulation with the procedural history necessary to take on the force of law.”).

The Hospitals’ claims “arise under” the Medicare Act, which means the Hospitals must exhaust administrative remedies before litigating their claims in court. The Hospitals were not excused from exhausting the administrative process, and their failure to do so deprived the trial court of subject matter jurisdiction. Therefore, we affirm the judgment of the trial court dismissing this action for lack of jurisdiction.

      . None of the contracts involved in this case are part of the record on appeal, and the parties are not clear whether Aetna itself or NYLCare 65 contracted with the HCFA. As it does not affect our analysis, for ease of reference, we will assume Aetna is the contracting party. We will refer to Aetna as the M + C organization and will not refer to NYLCare 65 as a separate entity but included in the term "Aetna."

      . A capitation payment is "a fixed per enroll-ee per month amount paid for contracted services without regard to the type, cost, or frequency of services furnished.” 42 C.F.R. § 422.350(b) (2003).

      . The Hospitals claim that Aetna must also prove that federal law preempts their claims before they can be required to exhaust administrative remedies. The Hospitals cite no authority for this proposition. Preemption and subject matter jurisdiction are distinct inquiries. See Baker v. IBP, Inc., 357 F.3d 685, 688 (7th Cir.2004) (''[Pjreemption is a defense and thus does not affect subject-matter jurisdiction.”). Because we have determined that the Hospitals’ failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction, we need not also decide whether their claims are preempted. Nevertheless, regulations and commentary regarding preemption are useful in demonstrating the intent that all coverage issues must go through the administrative process.

      . The regulations define an organization determination in pertinent part as follows:
      An organization determination is any determination made by an M + C organization with respect to any of the following:

      (2) Payment for any other health services furnished by a provider other than the M + C organization that the enrollee believes—
      (i) Are covered under Medicare; or
      (ii) If not covered under Medicare, should have been furnished, arranged for, or reimbursed by the M + C organization.
      (3) The M + C organization’s refusal to provide or pay for services, in whole or in part, including the type or level of services, that the enrollee believes should be furnished or arranged for by the M + C organization.

      42 C.F.R. § 422.566(b).

      . Section 422.574, which defines parties to the organization determination, states as follows:
      The parties to the organization determination are—
      (a) The enrollee (including his or her authorized representative);
      (b) An assignee of the enrollee (that is, a physician or other provider who has furnished a service to the enrollee and formally agrees to waive any right to payment from the enrollee for that service);
      (c) The legal representative of a deceased enrollee's estate; or
      (d) Any other provider or entity (other than the M + C organization) determined to have an appealable interest in the proceeding.
      42 C.F.R. § 422.574 (2003).

      . The Hospitals claim that although they may be assignees of their patients, they are not pursuing any rights they might have as assignees but rather their own separate contractual right to payment, and therefore are not proper parties to any organization determination under 42 C.F.R. § 422.574(b). Aetna responds that the Hospitals are most certainly assignees since they are not seeking payment from their patients and that they cannot choose to disregard this status to avoid the administrative process. We need not resolve this issue because we conclude that the Hospitals have an appealable interest in the proceeding and therefore are parties wider 42 C.F.R. § 422.574(d).

      . At the time this lawsuit arose, this prompt payment language was found at Tex.Rev.Civ. Stat. Ann. art. 20A.18B. The statutory prompt payment scheme has since been repealed and recodified at Tex. Ins.Code Ann. §§ 843.336-.353 (Vernon 2004-2005). See Act of May 1, 2001, 77th Leg., R.S., ch. 1419, 2001 Tex. Gen. Laws 3568.

      . At oral argument, the Hospitals asserted that if Aetna has not promptly paid, it no longer may raise a coverage defense. However, it provided no authority for that statement, and we have been unable to find any. Rather, based on the clear wording of the applicable statute, Aetna is not liable for "any charge for a service that is not covered by the health care plan.” Tex.Rev.Civ. Stat. Ann. art. 20A.18B(f) (repealed). This makes sense because presumably the contract obligates the provider only to provide services covered by the contract.

      . But see 42 C.F.R. § 422.568(f) (2003) ("If the M + C organization fails to provide the enrollee with timely notice of an organization determination as specified in this section, this failure itself constitutes an adverse organization determination and may be appealed.”).

      . Two days after we issued our original opinion, the Fifth Circuit issued its opinion in RenCare, Ltd. v. Humana Health Plan of Texas, Inc., 395 F.3d 555 (5th Cir.2004). The court considered a payment dispute between an M + C organization, Humana, and a contract provider, RenCare, over reimbursement for end stage renal dialysis services RenCare provided to Humana patients. Id. at 556-57. The court determined that the administrative process did not apply to such claims because these claims were not "inextricably intertwined” with a claim for Medicare benefits and therefore did not "arise under” the Medicare Act. Id. at 557-59.
      The Hospitals moved for rehearing, arguing that our opinion is inconsistent with RenCare and therefore should be withdrawn. We disagree. In RenCare, the dispute appears to have been a pure payment dispute with no mention of any potential coverage issues. Id. at 557. By contrast, Aetna has a potential coverage defense to these 6,000 claims. The potential of a coverage dispute is critical to our analysis that the claims arise under the Medicare Act and therefore must first proceed through the administrative process. The Ren-Care opinion does not consider coverage issues and is therefore distinguishable.
      Further, the crux of the court’s analysis is a provision in RenCare’s contract with Humana that waived RenCare's right to payment from its enrollees, which meant that Humana's patients had no financial interest in the dispute. Id. at 558. We cannot determine if we would reach the same conclusion as the Fifth Circuit because the parties have not provided us with the contracts between Aetna and the Hospitals. The Hospitals argue that such a waiver must be included in their contracts, citing 42 C.F.R. § 422.502(g)(l)(i). That provision states that an M + C organization must make arrangements to protect enrollees "from incurring liability ... for payment of any fees that are the legal obligation of the M + C organization.” As discussed above, given that Aetna need not pay any fee for a service that is not covered by the contracts, this regulation does not address who would be liable if Aetna successfully asserted a coverage defense.
      In our original opinion, we cited Sono Tech Enters., Inc. v. New Orleans Reg’l Physician Hosp., No. Civ.A. 04-2024, 2004 WL 2115609, at *3-4 (E.D.La. Sept. 13, 2004), which held that a provider's claim against M + C organization was properly removed to federal court because it arises under the Medicare Act, as additional support for our analysis. In an unpublished order, the court recently reconsidered and reversed its prior ruling in light of RenCare, noting simply that RenCare "forecloses any argument by Defendants that Plaintiff’s claims arise under the Medicare Act.” Neither the order nor the original opinion provide much detail about the facts of the case, but it does appear that coverage was an issue in Sono Tech. See id. at *4 (“Sono Tech is a medical care provider seeking payment for services that Defendants contend is not covered by Medicare.”). Thus, to the extent Sono Tech can be read to conclude that Ren-Care controls when coverage is at issue, we reject its analysis.


author: KEM THOMPSON FROST, Justice.

text:
    Alex ERAZO, Appellant, v. The STATE of Texas, Appellee.
    No. 14-01-01195-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 17, 2005.
    Douglas M. Durham, Houston, for appellant.
    Alan Curry, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION ON REMAND

KEM THOMPSON FROST, Justice.

This is a murder case. A previous panel of this court considered whether the trial court erred in admitting an autopsy photograph of a dead fetus removed from the deceased complainant and found no error. The Court of Criminal Appeals disagreed and remanded the case to this court for a harm analysis. After reviewing the entire record on remand, we do not have fair assurance that this photograph did not influence the jury or that it influenced the jury only slightly in assessing appellant’s punishment. Accordingly, we affirm appellant’s conviction and reverse and remand to the trial court for a new punishment hearing.

I. Factual and Procedural Background

Appellant, Alex Erazo, was convicted of murdering his seven-month-pregnant girlfriend, who was carrying his child, by shooting her in the back of the head. The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life and a $10,000 fine. On appeal, this court affirmed the trial court’s judgment, holding that the trial court did not err in admitting in evidence during the punishment phase an autopsy photograph of the dead fetus removed from the murder victim. Erazo v. State, 93 S.W.3d 533, 535-36 (Tex.App.-Houston [14th Dist.] 2002), rev’d in part, 144 S.W.3d 487 (Tex.Crim.App.2004). The Court of Criminal Appeals held that the trial court abused its discretion in determining that the probative value of the autopsy photograph was not substantially outweighed by the danger of unfair prejudice. Erazo v. State, 144 S.W.3d 487, 488-96 (Tex.Crim.App.2004). The Court of Criminal Appeals remanded the case to this court to determine the harm, if any, resulting from the error. Id. at 496.

II. Harm Analysis

Does this court have fair assurance that the trial court’s erroneous admission of the autopsy photograph of the murder victim’s dead fetus did not influence the jury’s punishment verdict or had only a slight effect thereon?

The trial court’s erroneous admission of the autopsy photograph of the deceased complainant’s dead fetus is harmless error if, after reviewing the entire record, we have fair assurance the error did not influence the jury, or had but a slight effect upon the jury’s verdict in the punishment phase. See Tex.R. APP. P. 44.2(b); Reese v. State, 33 S.W.3d 238, 243 (Tex.Crim.App.2000). After reviewing the whole record, we conclude that the admission of this evidence was harmful error.

The photograph in question depicted a small and helpless unborn child. See Erazo, 144 S.W.3d at 495. Furthermore, this autopsy photograph did not depict the deceased complainant, Kendy Palma; it showed only her dead unborn child. See Reese, 33 S.W.3d at 244 (finding it significant to harm analysis that erroneously admitted photograph of victim and her dead fetus depicted only one of the two people— the mother of the fetus — whose deaths were the basis of appellant’s capital-murder conviction). This image of the deceased 'complainant’s dead fetus was likely to appeal to the jury’s emotions and encourage the jury to make its punishment decision on an emotional basis. See Erazo, 144 S.W.3d at 495.

The State, however, argues that the erroneous admission of the autopsy photograph was harmless error because the State did not emphasize the victim’s unborn child during the punishment phase to provoke the jury into assessing a life sentence. Instead, the State contends, its primary focus in its punishment-phase case was the seriousness of the charged offense and appellant’s criminal record. However, the State’s closing argument undermines this assertion. Although the State initially focused on Palma’s murder and appellant’s criminal record, the end of the State’s argument focused on the unborn child and called special attention to the photograph of the dead fetus. The State imparted these final thoughts to the jury just before its deliberations:

Yesterday I introduced a photo into evidence which was marked Exhibit No. 66. I know most of you didn’t want to look at it. I didn’t want to offend you in any way and I can understand why you didn’t want to look at it. Believe me, I understand, but I want to remind you of what we talked about on voire dire. I believe I said at the beginning or asked who of you watched those T.V. shows like The Practice and Law and Order. I told you that we’re not here to entertain you. This whole thing is far more serious than that.
The reason that was important is that I knew when I introduced that photograph that you would be asked to look at it so you can appreciate just how serious this is and far reaching and devastating an effect this defendant’s crime has had. When he murdered Kendy Palma, he ended her life. He also ended what was a normal healthy pregnancy and what should have resulted in a beautiful child. That’s a very serious thing and he deserves to pay a serious penalty for it. His actions are final. They cannot be changed, but they can be punished in a just way.
Ladies and gentlemen, I’m not asking you for a number. When you go back there and deliberate, I’m going to ask you for a word and that word is life because that’s what this defendant deserves. Thank you.

Thus, in its final statements to the jury, the State twice referred to the erroneously admitted autopsy photograph, once specifying the exhibit number. The State also emphasized at least four times the importance of this photograph and the strong impact the State believed the photograph would have on the jury. The State’s closing-argument emphasis on the autopsy photograph of the unborn child is significant to our harm analysis. See Reese, 33 S.W.3d at 244 (finding it significant to harm analysis that State emphasized victim’s dead unborn child at end of State’s closing argument during punishment phase).

The punishment range in the case at bar is five years to ninety-nine years or life imprisonment. See Tex. Pen.Code Ann. § 12.32 (Vernon 2004). Therefore, the jury assessed the maximum possible punishment. In assessing punishment for appellant’s intentional killing of his girlfriend, who was pregnant with his child, the jury might have assessed punishment at confinement for life, even in the absence of their consideration of the photograph in question. However, the jury also could have assessed a more lenient sentence. See, e.g., Godwin v. State, 899 S.W.2d 387, 388-89 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd) (affirming conviction for murder of man by stabbing him more than seventeen times in the neck and torso, in which the jury assessed punishment at twenty years’ confinement).

This case is factually similar in some respects to Reese. In Reese, the defendant was sentenced to death after a punishment hearing at which the trial court admitted a posed photograph of one of his victims and her dead unborn child in a casket. Reese, 33 S.W.3d at 239. The photograph in the instant case was an autopsy photograph, rather than a posed photograph, and the photograph in this case showed only the dead fetus. Id. The photograph in Reese showed one of the murder victims as well as her dead fetus. Id. In Reese, the State admitted at trial that it sought to inflame and prejudice the jury through the admission of the photograph in question. Id. at 244. Though there was no such admission in this case, in both Reese and the instant case a photograph showing a murder victim’s dead fetus was admitted during the punishment phase, and the State referred to the dead fetus during closing argument.

After examining the entire record, we do not have fair assurance that the erroneously admitted photograph did not influence the jury or that it influenced the jury only slightly in assessing appellant’s punishment. See Reese, 33 S.W.3d at 243-44 (holding erroneous admission of photograph showing deceased victim and her dead fetus was reversible error in capital murder case); Chapman v. State, 150 S.W.3d 809, 818 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd.) (holding erroneous admission of evidence in punishment hearing was reversible error in case in which jury assessed punishment near maximum and in which State emphasized erroneously admitted evidence in closing argument). Thus, we cannot deem the error harmless.

III. Conclusion

Because we do not have fair assurance that the trial court’s erroneous admission of the autopsy photograph of the murder victim’s dead unborn child did not influence the jury’s punishment verdict or influenced it only slightly, we can only conclude this error was harmful. Accordingly, we affirm appellant’s conviction and reverse and remand for a new punishment hearing in accordance with this opinion.

      . In support of its argument that the error in this case is harmless, the State cites Hayes v. State. 85 S.W.3d 809, 816 (Tex.Crim.App.2002). However, the only harm analysis contained in that opinion is three sentences long, made in the alternative, and based on overwhelming evidence of guilt in the guilt-innocence phase. See Hayes, 85 S.W.3d at 816. Hayes is not on point in this case.


author: LEE ANN DAUPHINOT, Justice. TERRIE LIVINGSTON, Justice,

text:
    In the Matter of C.J.M.
    No. 2-04-250-CV.
    Court of Appeals of Texas, Fort Worth.
    June 16, 2005.

      Joetta L. Keene, Arlington, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Danielle A. Legault, Alicia Cooper and Riley Shaw, Asst. Criminal District Attys, Fort Worth, for Appel-lee.
    Panel A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

Appellant C.J.M. pled true and was adjudicated delinquent based on his aggravated sexual assault of a child under fourteen years of age. Because he was subject to a determinate sentence, he elected to have a jury decide his disposition. The jury assessed his disposition at ten years’ commitment in the Texas Youth Commission with a possible transfer to the Institutional Division of the Texas Department of Criminal Justice, and the trial court entered an order of commitment accordingly. Appellant brings one point on appeal, contending that the trial court abused its discretion by admitting evidence during the disposition phase of an extraneous unadju-dicated offense Appellant allegedly committed against another child. Because we agree with Appellant that the trial court abused its discretion by admitting the extraneous evidence and that the evidence harmed him, we reverse the judgment on disposition and the order of commitment and remand this case for a new disposition hearing.

Background Facts

Appellant pled true before a jury to the aggravated sexual assault of a seven-year-old girl, C.S. The jury found that he was delinquent. During the disposition phase, the State called L. J., a five-year-old girl, to the stand. Appellant timely objected to her testimony “based on 51.17 of the Texas Family Code, which specifically says that the Texas Rules of Evidence as well as Chapter 38 of the Code of Criminal Procedure appl[y]” and “that this is an alleged extraneous offense which is not allowed to be admitted into court.” Appellant secured a running objection on these grounds to the child’s testimony. The trial court admitted the evidence before the jury over Appellant’s objection and without giving a timely limiting instruction. L.J., Appellant’s cousin, ultimately testified that when she was four years old, Appellant penetrated her vaginally and anally with his penis. L.J.’s aunt and guardian, Brandy Broushard, confirmed that L.J. had made an outcry against Appellant and discussed the changes in L.J. that were allegedly related to Appellant’s actions. Appellant’s counsel secured a running objection under Rule 404 to Broushard’s testimony. The State questioned Appellant about the alleged extraneous act when he testified, resulting in his asserting his Fifth Amendment right not to incriminate himself before the jury. Evidence of other, less serious bad acts, adjudicated and unadjudi-cated, was also admitted but is not complained of here. The State relied on the evidence of the alleged aggravated sexual assault against L.J. in its closing argument. The limiting instruction in the charge provided that the jury should not consider the evidence of extraneous crimes or bad acts unless they had been proven beyond a reasonable doubt. Appellant timely appealed.

Extraneous Offense Evidence at Disposition

As both parties point out, had Appellant been certified to stand trial as an adult, Article 37.07 of the Texas Code of Criminal Procedure would have governed. That statute allows the admission of,

notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

But Chapter 37 of the Texas Code of Criminal Procedure is not applicable to juvenile proceedings. The juvenile justice code expressly provides,

51.17. Procedure and Evidence
(a) Except for the burden of proof to be borne by the state in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) or otherwise when in conflict with a provision of this title, the Texas Rules of Civil Procedure govern proceedings under this title.
(c) Except as otherwise provided by this title, the Texas Rules of Evidence applicable to criminal cases and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

Chapter 38 of the Texas Code of Criminal Procedure expressly allows evidence of an accused’s extraneous offenses or acts against the same complainant in the case with which he is charged, but the chapter does not address extraneous offense evidence involving a different complainant. The juvenile justice code does not otherwise speak to the issue before us. We therefore must resort to the Texas Rules of Evidence.

As the State points out, Texas Rule of Evidence 404(b), which specifically governs the admissibility of extraneous offenses, does not speak to the admissibility of extraneous offenses in the punishment phase of criminal cases. Rule 404(b) provides that

[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The State argues that there appears to be a gap in the statutory law and that we should fill the gap ourselves by applying Article 37.07 to determinate sentencing cases, not Rule 404(b), because juveniles who are subject to determinate sentencing commit “adult” crimes and should be treated like adults. But we cannot usurp the Texas Legislature’s power. Until the Texas Legislature or the Texas Supreme Court otherwise instructs us, we shall follow section 51.17 of the juvenile code and apply the rules of evidence applicable to criminal cases to issues of admissibility at the disposition phase of all juvenile cases. Rule 404(b) is applicable to criminal cases.

At the time of the admission of the evidence, Appellant had already pled true to the allegations in the petition to adjudicate and had already been found delinquent by the jury. No exception under Rule 404(b) would allow the evidence about L.J. to come in, and, indeed, the State did not advance a Rule 404(b) exception for offering the evidence, either at trial or here. The only purpose for offering the evidence was to show that Appellant, while on probation, had sexually assaulted another young child just months earlier than the offense alleged in the petition to adjudicate. That is, the State wanted to show that Appellant was someone who would continue to sexually assault young girls unless he was confined — he would act in conformity with his character. We therefore hold that the trial court abused its discretion by admitting the evidence in violation of Rule 404(b).

HaRm Analysis

Having found error, we must conduct a harm analysis to determine whether the error calls for reversal of the judgment. We agree with both parties and several of our sister courts that harm in juvenile appeals from determinate sentences should be analyzed under Rule 44.2. Because the error is not constitutional, we apply Rule 44.2(b) and disregard the error if it does not affect Appellant’s substantial rights. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. In making this determination, we review the record as a whole.

The record shows that Appellant, sixteen years old at the time of trial, had been classified as mentally retarded since he was nine years old and functioned at the level of an eight-year-old. He had also been diagnosed as having bipolar, attention deficit hyperactivity, and oppositional/defiant disorders. His own upbringing had been marred by sexual and physical abuse, and the juvenile detention center nurse testified that he was scarred from head to foot.

At the time of the sexual assault of C.S., which involved oral-genital contact, vaginal and anal digital penetration, and anal penetration with his penis, Appellant was at the home of his mother, who allowed him to smoke marijuana and drink alcohol. He was also taking his prescription medications. He testified that at the time, he did not know his conduct was wrong or that he would get in trouble. Also, at the time of the offense, Appellant was on juvenile probation for theft, assault bodily injury, and burglary of a habitation. There was evidence that he was often hard to control, both in and out of institutional settings. None of these other extraneous offenses and bad acts, however, indicated that Appellant was a repeat sexual offender of young girls.

In his closing argument, the prosecutor emphasized the alleged sexual assault against L. J. as much, if not more than, the charged sexual assault against C.S., the theme of his argument being that Appellant could not help himself, that he would go on sexually assaulting little girls if not confined.

Based upon our review of all the evidence, as discussed above, we must con-elude that the trial court’s error in admitting the evidence about the alleged extraneous offense had a significant or injurious effect on the jury’s verdict such that Appellant’s substantial rights were affected. We sustain Appellant’s sole point.

Conclusion

Having sustained Appellant’s point, we reverse the disposition judgment and the order of commitment and remand this case to the trial court for a new trial on disposition.

LIVINGSTON, J. filed a concurring opinion.

TERRIE LIVINGSTON, Justice,

concurring.

While I agree with the conclusion the majority opinion reaches, I respectfully write separately to make a couple of observations.

When a statute is clear and unambiguous, we “should give the statute its common meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); see also Sisk v. State, 131 S.W.3d 492, 494 (Tex.Crim.App.2004); Hernandez v. State, 127 S.W.3d 768, 771 (Tex.Crim.App.2004). When language in a statute is unambiguous, we will seek the intent of the legislature as found in the plain and common meaning of the words and terms used. St. Luke’s Episcopal Hosp., 952 S.W.2d at 505; In re K.L.V., 109 S.W.3d 61, 65 (Tex.App.-Fort Worth 2003, pet. denied). We should not adopt a construction that would render a law or provision meaningless. Centurion Planning Corp. v. Seabrook Venture II, No. 01-02-00518-CV, 2004 WL 2828125, at *3 (Tex.App.Houston [1st Dist.] Dec. 9, 2004, no pet. h.).

While I agree that there is a gap in the juvenile justice code’s instructions to the courts on what additional rules of criminal procedure apply in a Title III action, I believe there are two justifications for reaching the conclusion that we reach today.

First, as observed by the majority, section 51.17(c) of the juvenile justice code tells us specifically that courts may apply and use chapter 38 of the code of criminal procedure in Title III cases. Tex. Fam. Code Ann. § 51.17(c) (Vernon Supp.2004-05). Had the legislature so desired, it could have included a reference to chapter 37 of the code of criminal procedure as well, but it did not do so. Under the rules of statutory construction, we should not assume the omission was unintentional. See Upjohn Co. v. Rylander, 38 S.W.3d 600, 607 (Tex.App.-Austin 2000, pet. denied).

Second, we also know under rule of evidence 609(d) that in juvenile justice proceedings under Title III, evidence of prior juvenile adjudications are admissible in the limited situation in which the witness is a party. Tex.R. Evid. 609(d). This provision, not mentioned by appellant, the State, or the majority opinion, tells us that during a juvenile proceeding, evidence of prior juvenile adjudications against that particular juvenile are admissible to attack the juvenile’s credibility if the juvenile testifies. Id. Thus, we have clear authority from the supreme court to admit prior juvenile adjudications of a witness/party during a pending juvenile proceeding of that witness/party, but not prior extraneous, unadjudicated offenses. In this case, had the extraneous offense testified to by L.J. been previously adjudicated against C.J.M., it would have been admissible to attack C.J.M.’s credibility. Since it had not yet been pursued to an adjudication, it was not admissible.

I believe the unadjudicated offense was inadmissible for these additional reasons and therefore concur in the majority opinion and judgment.

      . See Tex. Fam.Code Ann. § 54.04(d)(3) (Vernon Supp.2004 — 05).

      . See id.

      . Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp.2004-05).

      . See Tex. Fam.Code Ann. § 51.17(c) (Vernon Supp.2004-05).

      . Id. § 51.17(a)(c).

      . See Tex.Code Crim. Proc. Ann. art. 38.37 (Vernon 2005).

      . See Tex. Fam Code Ann. § 51.17.

      . See Harrell v. State, 884 S.W.2d 154, 166 n. 13 (Tex.Crim.App.1994); Patton v. State, 25 S.W.3d 387, 392 (Tex.App.-Austin 2000, pets, ref'd); Ramirez v. State, 967 S.W.2d 919, 923 (Tex.App.-Beaumont 1998, no pet.).

      . Tex.R. Evid. 404(b).

      . See Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex.2004) ("That does not give us the power (as the United State Supreme Court has stated) ‘to legislate ... to fill any hiatus Congress has left.’ ”) (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 579, 99 S.Ct. 2479, 2491, 61 L.Ed.2d 82 (1979)).

      . See, e.g., Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App.2004).

      . See Tex.R.App. P. 44.2, In re J.H., 150 S.W.3d 477, 485 (Tex.App.-Austin 2004, pet. denied); In re L.R., 84 S.W.3d 701, 707 (Tex.App.-Houston [1st Dist.] 2002, no pet.); In re D.V., 955 S.W.2d 379, 380 (Tex.App.-San Antonio 1997, no pet.); In re K.W.G., 953 S.W.2d 483, 488 (Tex.App.-Texarkana 1997, pet. denied); In re D.Z., 869 S.W.2d 561, 565-66 (Tex.App.-Corpus Christi 1993, writ denied).

      . See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

      . Tex.R.App. P. 44.2(b); see Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Coggeshall v. State, 961 S.W.2d 639, 642-43 (Tex.App.-Fort Worth 1998, pet. ref'd).

      . King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Coggeshall, 961 S.W.2d at 643.

      . See Johnson, 967 S.W.2d at 417.

      . See Curtis v. State, 89 S.W.3d 163, 170 (Tex.App.-Fort Worth 2002, pet. ref'd).


author: BEA ANN SMITH, Justice.

text:
    Enrigue Guadalupe VIDAL, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00300-CR.
    Court of Appeals of Texas, Austin.
    June 16, 2005.

      Bob D. Odom, Odom & Hurley, Belton, TX, for Appellant.
    C. Stephen Hughes, Administrative Asst. District Atty., Belton, TX, for Appel-lee.
    Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

In April 2001, appellant Enrigue Guadalupe Vidal pleaded guilty to burglary of a habitation. See Tex. Pen.Code Ann. § 30.02 (West 2003). On May 30, 2001, the court sentenced Vidal to three years in prison and a $500 fine, but suspended imposition of sentence and placed him on community supervision for five years. Vidal now appeals from an order revoking community supervision and imposing sentence. We will reverse the order because the State failed to prove the alleged violation of the supervisory conditions.

Condition five of the conditions of supervision required Vidal to report monthly to his community supervision officer. It was a matter of record at the time of sentencing that Vidal is a citizen of Mexico, was living in the United States unlawfully, and was awaiting a deportation hearing. On July 5, 2001, the court amended the conditions of supervision to add condition thirty-six: ‘When defendant is released from custody of United States Immigration and Naturalization Service and if defendant is in the United States, report to the Bell/Lampassas County Community Supervision and Corrections Department for further orders of the Court.”

The motion to revoke was filed on January 29, 2004. It alleged that Vidal had violated condition five by failing to report to the community supervision office during the months of July through December 2001, and during the years 2002 and 2003. Attached to the motion was a case history stating that following his conviction, “defendant was held in Bell County Jail until released to the Department of Immigration and Naturalization Service (INS) on July 6, 2001, and deported to Mexico.” Capias issued and Vidal was arrested in Bell County on February 28, 2004.

At the revocation hearing, the community supervision officer to whom Vidal was assigned, Kirk Lampham, testified that Vidal had been deported to Mexico and did not report during the years 2001, 2002, and 2003. Lampham said he did not know when Vidal returned to the United States or if Vidal was in the United States at the times alleged in the motion. Vidal did not testify. Finding that Vidal had violated condition five, the court revoked supervision.

We review an order revoking community supervision for an abuse of discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984). A trial court abuses its discretion if it revokes community supervision despite the State’s failure to prove a violation of the conditions of supervision. Id.

Vidal argues that the State did not prove that he was in the United States between July 2001 and December 2003, and thus did not prove that he violated his obligation to report as alleged in the motion to revoke. The State responds that it was neither alleged nor found that Vidal violated condition thirty-six requiring him to report upon his release from the custody of immigration officials and his return to the United States. The State urges that the testimony at the revocation hearing shows without contradiction that Vidal violated condition five by failing to report monthly from July 2001 through December 2003.

It was impossible for Vidal to report to a Bell County community supervision officer if he was in the custody of immigration authorities or if he was deported to Mexico. Recognizing this reality, the district court amended the conditions of supervision on July 5, 2001, one day before Vidal was taken into federal custody for deportation, to require Vidal to report to the Bell County community supervision office when and if he was released from INS custody and returned to the United States. Although the court did not expressly modify the monthly reporting requirement, that was the clear effect of the amendment. Condition thirty-six had no purpose if it did not reheve Vidal of his obligation to report monthly in Bell County while he was in federal custody or in Mexico. Read together, conditions five and thirty-six required Vidal to report to the Bell County community supervision office upon his return to the United States, and to thereafter report monthly.

We know that Vidal was in the United States on February 28, 2004, when he was arrested on the capias. There is no evidence, however, as to when Vidal returned to the United States. Most importantly, there is no evidence that Vidal was in the United States and outside INS custody during the time period alleged in the motion to revoke. Without such evidence, the State did not prove that Vidal’s failure to report to the probation office during the months alleged was a violation of the conditions of his supervision. We accordingly hold that the district court abused its discretion by revoking Vidal’s community supervision.

The order revoking community supervision is reversed and the cause is remanded to the district court for proceedings consistent with this opinion.