author: Justice YÁÑEZ SEERDEN, Chief Justice,

text:
    TOWN OF PALM VALLEY, Texas, Appellant, v. Paul JOHNSON and The Johnson Company d/b/a J Properties, Appellees.
    No. 13-98-287-CV.
    Court of Appeals of Texas, Corpus Christi.
    March 31, 2000.
    Rehearing Overruled May 25, 2000.

      Robert C. Sheline, Gibbon, Gibbon & Sheline, Harlingen, for appellant.
    Paul Johnson, Harlingen, pro se.

      . Justice John L. McCraw, Jr. assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §§ 74.003, 75.002 (Vernon 1998); Tex. R.App. P. 41.2(b).

   OPINION

Justice YÁÑEZ

delivered the opinion of the Court,

in which Justices DORSEY, HINOJOSA, and McCRAW joined.

Appellant, the Town of Palm Valley (“Palm Valley”), appeals a judgment granting declaratory and injunctive relief in favor of appellees, Paul Johnson and The Johnson Company d/b/a J Properties (“Johnson”). Following a trial, the court granted judgment permanently enjoining Palm Valley from closing, obstructing, or otherwise denying public access to Lemon Drive, a public street located within the town’s boundaries. By fourteen issues, Palm Valley contends the trial court erred in: (1) granting the injunction because Johnson failed to establish he had suffered irreparable injury; (2) concluding that Johnson’s property abuts Lemon Drive; and (3) concluding that the entire length of Lemon Drive as originally platted was accepted as a public street, that no portion of it was ever abandoned, and that there was no failure of any conditional limitation in the original dedication. We affirm.

A subdivision plat for Palm Valley Estates Unit number nine, a residential subdivision developed as one of a series of units in a country club complex near Har-lingen, was approved by Cameron County and filed for record on August 14, 1972. The plat shows residential lots and streets, including Lemon. Drive, which extends southward approximately three hundred feet from Palm Valley Drive West to the southern boundary of the subdivision. The plat states that the developer “hereby dedicated] the Roads, Streets, and drives as shown and delineated hereon to the public so long as the same shall be used and maintained as such.” The plat shows five lots with frontage along Lemon Drive, which “dead-ends” into the southern boundary line of the property. Lemon Drive was subsequently paved, except for a four-foot section at its southern end.

Palm Valley was incorporated on September 11, 1980. Unit number nine was included in the incorporation, which made the southern boundary of the subdivision coterminous with the southern boundary of the town.

Pursuant to a request from residents along Lemon Drive, Palm Valley’s Board of Aldermen voted on June 16, 1987 to close Lemon Drive at its southern end and erect a barricade. Apparently, however, no barricade was erected at that time.

On June 25, 1990, Paul Johnson purchased a twenty-acre tract located immediately south of and contiguous to Palm Valley’s southern boundary. Several weeks later, he conveyed the property to the Johnson Company d/b/a J Properties and hired an engineering firm to design a residential subdivision on the property. The firm designed a proposed subdivision, Palm Valley South, which showed a street called Lemon Drive connecting to the existing Lemon Drive. Johnson requested access from Palm Valley to the existing Lemon Drive for his proposed subdivision. In response, the Board of Aldermen voted on October 9,1990 to erect a barricade and fence at the southern end of Lemon Drive. Approximately a month later, Palm Valley completed construction of a fence along its southern boundary and across the southern end of Lemon Drive.

In a letter dated October 14, 1991, the City of Harlingen advised Palm Valley that Johnson’s proposed subdivision plat had been approved, subject to a requirement that Lemon Drive be continued into the subdivision from the southern boundary of Unit number nine. The letter also noted that although the City of Harlingen was aware of Palm Valley’s claim that it had closed Lemon Drive, it “ha[d] not received any notice that the Town of Palm Valley’s Board of Aldermen has taken proper legal action to close, abandon, and vacate Lemon Drive as a public thoroughfare.” On November 19, 1991, the Board of Aider-men adopted an ordinance purportedly “closing” Lemon Drive “one or two feet inside the southern boundary” and declaring it to be a cul-de-sac. Shortly thereafter, appellees filed suit seeking injunctive relief.

Almost two years later, on November 5, 1993, Palm Valley re-platted the four-foot unpaved strip at the south end of Lemon Drive, declaring that the re-platted portion was “no longer a part of the platted road and street right-of-way,” and had “devolved in accordance with the dedication provisions of the original plat of said Unit No. 9.” The certificate on the re-plat acknowledged that “said replatted portion was, prior to this replat, a portion of previously platted road and street right-of-way.”

Appellees’ suit for declaratory and in-junctive relief was tried to the court on May 11, 1995. Following a lengthy recess, the trial court issued findings of fact and conclusions of law and granted a declaratory judgment and permanent injunction in favor of appellees. The relevant findings and conclusions were:

* As originally platted, Lemon Drive extends to and touches the southern boundary line of Palm Valley Estates Unit No. 9, which became the southern city limit of the Town of Palm Valley.
* Although not all the platted right of way was paved, Lemon Drive was opened and maintained as a public street from its original dedication through the date of this suit.
* The public right of way known as Lemon Drive extends to and touches the southernmost boundary of Palm Valley Estates Unit No. 9 and the Town of Palm Valley city limits.
* The Johnson property abuts the public street known as Lemon Drive within the Town of Palm Valley, Texas.
* Neither Johnson nor any predecessor or successor in interest to the Johnson property consented to the closure of said street.
* On May 8, 1991, the City of Harlingen approved the Johnson’s subdivision, known as Palm Valley South Subdivision, with the condition that Lemon Drive be continued as a through street from Palm Valley Estates Unit No. 9 to Palm Valley South Subdivision.
* The action of the Town of Palm Valley has denied the owners of the Johnson property access to the public street and right of way known as Lemon Drive.
* The Town of Palm Valley has never initiated or completed a condemnation suit against the owners of the Johnson property regarding Lemon Drive.
* For purposes of the application of Tex.Rev.Civ. Stat. Ann. ÁRT. 1016 [repealed, now Tex. Transp. Code. Ann. § 311.008 (Vernon 1999) ], Palm Valley South Subdivision abuts Lemon Drive in the Town of Palm Valley, Texas.
* [That statute] requires consent of all owners of real property abutting a public street to consent to the closing of such a street.
* Any and all ordinances, resolutions, or other acts taken by the Board of Aider-man [sic] of the Town of Palm Valley which purports to close, vacate, or abandon Lemon Drive are null and void because such acts were taken without the consent of the Plaintiffs [sic] in this suit as owners of property abutting said public street.
* The entire length of Lemon Drive as originally platted in Palm Valley Estates Unit No. 9 was accepted, opened, and maintained as a public street.
* No portion of Lemon Drive in the Town of Palm Valley has ever been abandoned.
* There was no failure of any conditional limitation in the original dedication of Lemon Drive in Palm Valley Estates, Unit No. 9, and, even if there was, such failure has been waived or such conditional limitation was unenforceable by this defendant.
* Plaintiffs [sic] are entitled to a permanent injunction enjoining the Town of Palm Valley from erecting or creating any barrier, or taking any other action to vacate, abandon, or close Lemon Drive in the Town of Palm Valley, Texas....

In its eighth, eleventh, and fourteenth issues, Palm Valley contends Johnson was not entitled to an injunction because he failed to establish he had suffered or would suffer irreparable injury as a result of being denied access to Lemon Drive. Johnson contends no showing of irreparable injury was required because: (1) section 65.011 of the civil practices and remedies code, which lists various grounds for obtaining injunctive relief, does not require irreparable injury as an element of each situation in which relief may be granted, see Tex. Civ. Prac. & Rem.Code Ann. § 65.011 (Vernon 1997); and (2) section 65.015 of the civil practices and remedies code, which requires no showing of irreparable injury, specifically governs situations where an injunction is sought to prevent the closing of a street. See Tex. Civ. Prac. & Rem.Code Ann. § 65.015 (Vernon 1997). Section 65.015 provides:

An injunction may not be granted to stay or prevent the governing body of an incorporated city from vacating, abandoning, or closing a street or alley except on the suit of a person:
(1) who is the owner or lessee of real property abutting the part of the street or alley vacated, abandoned, or closed; and
(2) whose damages have neither been ascertained and paid in a condemnation suit by the city nor released.

Id.

The grant or. refusal of a permanent injunction is within the trial court’s sound discretion and, on appeal, review of the trial court’s action is limited to the question of whether the action constituted a clear abuse of discretion. Long Island Owner’s Ass’n, Inc. v. Davidson, 965 S.W.2d 674, 689 (Tex.App. — Corpus Christi 1998, pet. denied) (citing State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex.1979)).

Section 65.011 describes five separate and independent bases for granting injunc-tive relief. See Tex. Civ. PRac. & Rem.Code Ann. § 65.011 (Vernon 1997). Paragraph one of that section provides that an injunction may be granted if “the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant^]” Tex. Civ. PRac. & Rem.Code Ann. § 65.011(1) (Vernon 1997). In Hale County v. Davis, 572 S.W.2d 63, 66 (Tex.Civ.App. — Amarillo 1978, writ ref d n.r.e.), the court relied on former Texas Revised Civil Statute Annotated article 4642, section 1, repealed, now Tex. Civ. PRac. & Rem.Code Ann. § 65.011(1) (Vernon 1997), in upholding an injunction enjoining non-property owners from using a portion of a county road within property owners’ boundaries to install pipelines for the nonowners’ private use. The court held the right to injunctive relief was authorized by the statute and that the equitable principles — that the property owners had an adequate remedy at law, failed to show irreparable harm, and that the balance of equities preponderated in the nonowners’ favor — were inapplicable. See Hale County, 572 S.W.2d at 66.

Johnson’s argument that no showing of irreparable injury is required is also supported by the principle that equitable requirements for obtaining an injunction are inapplicable when a right to injunctive relief is granted by statute or when an injunction is granted to prevent the violation of a statute. Texas Pet Foods, Inc., 591 S.W.2d at 805; Gulf Holding Corp. v. Brazoria County, 497 S.W.2d 614, 619 (Tex.Civ.App. — Houston [14th Dist.] 1973⅛ writ ref d n.r.e.) (“[w]hen it is determined that a statute is being violated, it is the province and duty of the district court to restrain it, and the doctrine of balancing of equities does not apply”).

In the present case, the trial court concluded that former Texas Revised Civil Statute Annotated article 1016, repealed, now Tex. TRAnsp. Code Ann. § 311.008 (Vernon 1999), requires all abutting property owners to consent to the closing of a public street. It further concluded that because any action by Palm Valley purportedly vacating or closing Lemon Drive was taken without obtaining Johnson’s consent, any such action is void. Section 311.008 of the transportation code provides:

The governing body of a general-law municipality by ordinance may vacate, abandon, or close a street or alley of the municipality if a petition signed by all the owners of real property abutting the street or alley is submitted to the governing body.

Tex. TRAnsp. Code. Ann. § 311.008 (Vernon 1999) (emphasis supplied).

Although the issue of whether land that touches the end of a public road “abuts” the road has not been specifically addressed by Texas courts, this Court has previously held “abut” to mean “to touch along a border or with a projecting part, (land abuts on the road); to terminate at a point of contact; to border on; touch.” J. U. Clements v. City of Corpus Christi, 471 S.W.2d 83, 86 (Tex.Civ.App. — Corpus Christi 1971, writ ref'd n.r.e.) (quoting Webster’s Seventh New Collegiate Dictionary).

Here, the trial court found, as a conclusion of law, that “[f]or purposes of the application of Tex.Rev.Civ. Stat. Ann. Art. 1016 [repealed, now Tex. Tiíansp. Code. Ann. § 311.008 (Vernon 1999) ], Palm Valley South Subdivision abuts Lemon Drive in the Town of Palm Valley, Texas.” The evidence presented at trial supports the trial court’s conclusion. We hold Johnson’s property abuts Lemon Drive and that he is entitled to all rights of an abutting property owner, including access to Lemon Drive. We overrule appellant’s first, second, third, seventh, and thirteenth issues.

We also conclude that Palm Valley’s action purportedly closing or vacating a portion of Lemon Drive was taken without Johnson’s consent and is therefore void. We hold' section 311.008 of the transportation code, together with section 65.015 of the civil practices and remedies code, provides sufficient statutory authority for the injunctive relief granted by the trial court, and accordingly, overrule appellant’s eighth, eleventh, and fourteenth issues.

By its fourth, fifth, sixth, ninth, and tenth issues, Palm Valley argues that the four-foot unpaved section at the southern end of Lemon Drive: (1) was never accepted (issues four, nine, and ten); (2) reverted to private ownership because of a conditional limitation in the original dedication (issue five); or (3) was abandoned (issue six). In response, Johnson argues that all of Lemon Drive was accepted as a public roadway, that there was no reversion of any portion of it due to a failure of a conditional limitation in the original dedication, and that no portion of the roadway was abandoned.

Palm Valley contends there is no evidence that either Cameron County or Palm Valley ever accepted Lemon Drive. Palm Valley’s position is based on the argument that because the four-foot section of Lemon Drive was never paved, it was never accepted as a public roadway. Palm Valley cites no authority in support of this proposition, and we have found, none. The general rule governing partial acceptance of a dedicated street in such circumstances is as follows:

... the opening up of a dedicated street for the greater part of its length by a municipality constitutes an acceptance of the whole of the street as dedicated, in the absence of anything to show a contrary intent. The fact that a portion of the street is not capable of being traveled does not militate against the idea of acceptance.

26 C.J.S. Dedication § 41 (1956) (footnotes omitted); see also Joseph v. City of Austin, 101 S.W.2d 381, 386 (Tex.Civ. App. — Austin 1936, writ ref d) (where lots were purchased in reference to plat showing sixty-foot street, entire sixty-foot width vested in public and no showing of formal acceptance was required, even though only thirty-foot wide section of street was paved). We hold the entire length of Lemon Drive as originally platted was accepted as a public street and overrule appellant’s fourth, ninth, and tenth issues.

Palm Valley also argues that the original dedication of the four-foot unpaved section “terminated” because the dedication was limited by the condition that the streets “be used and maintained as such.” Again, Palm Valley cites us to no case law in support of its position and we have found none. “ ‘Dedication’ is the act of appropriating private land to the public for any general or public use. Once dedicated, the owner of the land reserves no rights that are incompatible with the full enjoyment of the public.” Scott v. Cannon, 959 S.W.2d 712, 718 (Tex.App.— Austin 1998, pet. denied.) Where a condition in a dedication is void as against public policy or as inconsistent with the grant, the dedication is effective but the condition is inoperative. City of Fort Worth v. Ryan Properties, Inc., 284 S.W.2d 211, 214 (Tex.Civ.App. — Fort Worth 1955, no writ). Whether a dedicated use is restricted or unrestricted is determined by the intention of the dedicator at the time the dedication was made. Pak-Mor Manufacturing Company v. Brown, 364 S.W.2d 89, 93 (Tex.Civ.App. — San Antonio 1962, writ refd n.r.e). In the present case, we conclude it is unlikely that the original dedicator intended to create a dedication in which a four-foot strip of land would revert. Even if such an intent did exist, any such conditional limitation on the dedication is inconsistent with the grant and is therefore inoperative. We hold the trial court did not abuse its discretion in concluding that there was no failure of any conditional limitation in the original dedication. We overrule appellant’s fifth issue.

By its sixth issue, Palm Valley argues that the four-foot unpaved section of Lemon Drive was abandoned. In support, it points to evidence that the four-foot strip could not be used as part of the street because it was obstructed by brush, grass, and palm trimmings. “In order for a public road to be considered abandoned, its use for the purpose for which it was dedicated must be either impossible or so improbable as to be practically impossible.” Spinuzzi v. Town of Corinth, 665 S.W.2d 530, 533-34 (Tex.App.—Fort Worth 1983, no writ). Mere delay in the exercise of the use for which property was dedicated does not amount to an abandonment of the use. City of Houston v. Lawyers Trust Co., 348 S.W.2d 26, 31 (Tex.Civ.App.—Waco 1961), rev’d on other grounds, 359 S.W.2d 887 (Tex.1962). Moreover, the use and improvement of only a part of the dedicated property does not constitute an abandonment of the balance of the property. Id. We hold the trial court did not err in concluding that no portion of Lemon Drive has ever been abandoned. We overrule appellant’s sixth issue.

By its twelfth issue, Palm Valley complains that Johnson’s petition for in-junctive relief failed to contain a verification as required by rule 682. See Tex.R. Civ. P. 682. A verified petition for injunc-tive relief is not required, however, when a full evidentiary hearing on evidence independent of the petition has been held. Georgiades v. Di Ferrante, 871 S.W.2d 878, 882 (Tex.App.—Houston [14 th Dist.] 1994, writ denied). We overrule appellant’s twelfth issue.

The dissent contends Johnson is not entitled to injunctive relief because there is no evidence to support a finding of irreparable injury, and that such a finding is required by section 65.011 of the civil practices and remedies code. According to the dissent, an applicant seeking an injunction preventing street closure must not only state a valid cause of action and show imminent harm and irreparable injury, but in addition, must meet the requirements imposed by section 65.015.

The dissent argues that Johnson’s reliance on Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966), to show irreparable injury was not required, is misplaced. In Dykes, the supreme court upheld an injunction prohibiting the City of Houston from erecting a barricade on a dedicated (but unopened) street on the grounds that the plaintiffs, as purchasers of lots in the subdivision with reference to a map showing a dedicated street, acquired an easement in the land designated as a street. See Dykes, 406 S.W.2d at 181-83. The court’s opinion contains no discussion or reference to a requirement to show irreparable injury. The dissent distinguishes Dykes by noting that in the present case, Johnson’s property lies outside the boundaries of the subdivision (and the town). The dissent reasons that Johnson, unlike the purchasers in Dykes, acquired no easement over Lemon Drive. The dissent cites no authority, however, for its conclusion that only purchasers of property within Palm Valley Estates Unit number nine, who purchased property with reference to the plat showing Lemon Drive, acquired a private easement over the area designated as Lemon Drive. The evidence shows Johnson purchased his property “with reference to” the recorded subdivision plat showing Lemon Drive as a public street.

Although our holding that Johnson was not required to show irreparable injury is not based on the holding in Dykes, we disagree with the dissent’s interpretation of that opinion. A private easement in a street may be acquired either as a purchaser in a subdivision with reference to a recorded plat or map, like the plaintiffs in Dykes, see, e.g., Dallas Cotton Mills v. Industrial Co., 296 S.W. 503, 504 (Tex. Comm’n App.1927, judgm’t adopted), or as an abutting property owner. See Jacobs v. City of Denison, 251 S.W.2d 804, 807 (Tex.Civ.App. — Dallas 1952, no writ) (no private easement acquired where plaintiff was neither abutting property owner nor purchaser with reference to recorded map or plat); Texas Co. v. Texarkana Mach. Shops, 1 S.W.2d 928, 930 (Tex.Civ.App.-Texarkana 1928, no writ) (abutting property owner has right of easement in street). In Texarkana Machine Shops, the court upheld an injunction in favor of an abutting property owner compelling the removal of certain obstructions placed on a public street. Id. at 932. The court found that the abutting owner’s rights were not extinguished by the city’s passage of an ordinance declaring the street vacated. Id. at 931.

We AFFIRM the judgment of the trial court.

Dissenting Opinion by Chief Justice SEERDEN, joined by Justices CHAVEZ and RODRIGUEZ.

SEERDEN, Chief Justice,

dissenting.

I disagree with the majority’s holding that Johnson was not required to show irreparable injury as a prerequisite to his obtaining the injunction he seeks. This conclusion runs contrary to the well-settled law of this state. To be entitled to permanent injunctive relief, the movant must plead and prove a valid cause of action against the defendant. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex.1993); Operation Rescue-Nat’l v. Planned Parenthood of Houston and S.E. Texas, Inc., 937 S.W.2d 60, 71 (Tex.App. — Houston [14th Dist.] 1996), aff'd, 975 S.W.2d 546 (Tex.1998). In addition, he must also show that harm is imminent. Operation Rescue, 937 S.W.2d at 72. Finally, he must establish that the imminent harm •will result in an irreparable injury if the injunction is not issued. Id. Such injury may be found where a later award of damages will not provide adequate compensation for the harm suffered. Houston Fed’n of Teachers, Local 2415 v. Houston Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex.1987).

Johnson did not allege irreparable injury resulting from the barricade on Lemon Drive. In addition, the court did not set out an express finding or conclusion that such injury would result without the injunction. This court may nevertheless deem findings where the trial court has issued an order and the existing findings are silent on an indispensable issue. Sun Coast Resources, Inc. v. Cooper, 967 S.W.2d 525, 529 (Tex.App. — Houston [1st Dist.] 1998, pet. dism’d w.o.j.). However, such a presumed finding must be raised by the pleadings and supported by the evidence. Id.

At trial, Johnson testified that he desired to have Lemon Drive opened so that those who purchased homes in Palm Valley South subdivision would be able to have easy access to the Palm Valley Country Club. However, he also testified that he had already developed the property and that ingress and egress to and from the development was possible via Stuart Place Drive, a public roadway abutting both his property and the Town of Palm Valley on the west. He presented no other evidence of imminent harm or irreparable injury without the injunction. Accordingly, I would conclude that there is no evidence in the record to support the deemed finding of irreparable injury necessary to support an injunction.

Johnson contends, and the majority conclude, that a showing of irreparable injury is not necessary to support the injunction here because it was issued pursuant to section 65.015 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 65.015 (Vernon 1998). That section provides:

An injunction may not be granted to stay or prevent the governing body of an incorporated city from vacating, abandoning, or closing a street or alley except on the suit of a person:
(a) who is the owner or lessee of real property abutting the part of the street or alley vacated, abandoned, or closed; and
(b) whose damages have neither been ascertained and paid in a condemnation suit by the city nor released.

Id. Johnson suggests that the more specific language of section 65.015 controls the more general authority to grant injunctions found in section 65.011, which states, in pertinent part:

A writ of injunction may be granted if:
(3) the applicant is entitled to a writ of injunction under the principles of equity and the statutes of this state relating to injunctions; [or]....
(5) irreparable injury to real or personal property is threatened irrespective of any remedy at law.

Tex. Crv. Prac. & Rem.Code Ann. § 65.011 (Vernon 1998). In short, Johnson asserts that section 65.015 comprehensively sets out the elements that entitle a person to injunctive relief from road closures. I disagree. The clear language of that section indicates that section 65.015 serves to impose two additional requirements upon an applicant. In other words, an applicant seeking an injunction preventing street closure must not only state a valid cause of action, show imminent harm and irreparable injury, he must also own abutting land and retain some ability to enjoin the closure (either because he has not been compensated or has not yet released his claim).

Johnson points to Dykes v. City of Houston, 406 S.W.2d 176 (Tex.1966), to further his argument that no showing of injury is required. In Dykes, a landowner sought a mandatory injunction to prohibit the City of Houston from placing a barricade across a public street. The barricade was erected to prevent vehicle traffic from entering an undeveloped area of the dedicated street. The supreme court upheld the injunction, noting that the case presented a “conflict between a private interest and the public welfare.” In short, the court’s opinion was rooted in the fact that the abutting landowners had acquired their property in a subdivision in which the plat dedicated private easements over the public road thereby entitling them to enjoin the City’s attempted closure. See Acts of 1930, 41st Leg., 5th C.S., ch. 84, 1930 Tex. Gen. Laws 257 (amended 1985) (current version at Tex. Crv. PRAC. & Rem. Code Ann. § 65.015 (Vernon 1997)). The focal point of the court’s analysis was its conclusion that the petitioners had purchased property in a subdivision and acquired private easement rights over the dedicated public road by virtue of having bought lots “with reference to a front or rear on that street.” Dykes, 406 S.W.2d at 181 (citing Oswald v. Grenet, 22 Tex. 94, 100 (1858)). This easement gave the purchasers “the right to have such street ... kept open.” Id. (quoting Wolf v. Brass, 72 Tex. 133,12 S.W. 159,160 (1888)).

I find nothing in this record to indicate that Johnson has acquired such an easement. The plat records introduced into evidence indicate that Johnson’s property is immediately south of the Town and the maps show that the northern border of Johnson’s property is contiguous with a portion of the southern border of the Town. Unlike in Dykes, where the petitioners bought their property within the subdivision containing the closed street, here, Johnson’s property is located entirely out-* side of the Palm Valley subdivision (which is now the Town of Palm Valley). Thus, I would conclude that Johnson has not acquired a private easement over Lemon Drive within the Town of Palm Valley. This distinction makes Dykes inapposite to the present case.

Johnson similarly argues that where a statute is being violated, the equitable requirements for obtaining an injunction do not apply. See Gulf Holding Corp. v. Brazoria County, 497 S.W.2d 614, 619 (Tex.Civ.App.- — Houston [14 th Dist.] 1973, writ ref d n.r.e.). In Gulf Holding, the court found that the “Open Beach Act” provided for a mandatory injunction to remove obstructions or barriers restricting access to beaches. Id. (citing VERNON Ann. Civ. Stat. art. 5415d (repealed, now Tex. Nat. Res.Code Ann. § 61.001, et seq.)). Section five of that act, as then codified, stated:

The Attorney General, any County Attorney, District Attorney, or Criminal District Attorney of the State of Texas is hereby authorized and empowered, and it shall be his, or their duty to file ... actions seeking either temporary or permanent court orders or injunctions to remove any obstruction or barrier, or prohibit any restraint or interference, restricting the right of the public ... to free and unrestricted ingress and egress to and from the state-owned beaches....

Id. (emphasis added). I find.no similar language in the statutes governing street closures. .Injunction is an appropriate remedy to stop street closure, but without a private easement, I believe that Johnson must also comply with the civil practice and remedies code, which places additional limitations on those who seek injunctive relief.

Because Johnson has not demonstrated an entitlement to injunctive relief because he has not shown irreparable injury, I would dissolve the injunction, reverse the trial court’s judgment and remand the cause for further proceedings. For these reasons, I respectfully dissent.

Justices CHAVEZ and RODRIGUEZ join in the dissent.

      . The letter, signed by the City of Harlin-gen's Director of Planning and Zoning, noted that Johnson’s proposed subdivision was located within Harlingen's extra-territorial jurisdiction and was therefore governed by the requirements of the City’s subdivision ordinance, which required continuation of existing streets into adjoining new subdivisions where necessary. In this case, the city’s Planning and Zoning Commission had determined that the extension of Lemon Drive was required to promote orderly development, facilitate traffic flow, and provide improved access for fire and emergency medical vehicles.

      . The trial was recessed on May 12, 1995, and reconvened on September 22, 1997.


source: Caselaw Access Project

author: DIXON W. HOLMAN, Justice.

license: Public Domain

text:
    Jon E. MAYO, Appellant, v. The STATE of Texas, State.
    Nos. 2-96-394-CR, 2-96-395-CR.
    Court of Appeals of Texas, Fort Worth.
    April 6, 2000.
    Rehearing Overruled May 11, 2000.

      Don Hase, Arlington, for appellant.
    Tim Curry, Criminal Dist. Atty., Charles M. Mallin, David M. Curl, Jay Lapham, Christy Jack, Asst. Criminal Dist. Attys., Fort Worth, for appellee.
    Panel B: LIVINGSTON, RICHARDS, and HOLMAN, JJ.
   OPINION ON REMAND

DIXON W. HOLMAN, Justice.

This case is before us on remand for consideration of Jon E. Mayo’s remaining points on appeal.

Background

Appellant was charged with sexually assaulting his two former step-daughters, E.W. and N.W. After a jury trial, the jury found appellant guilty of aggravated sexual assault and indecency with a child by contact in E. W.’s case and sentenced him to life imprisonment and twenty years’ imprisonment, respectively. The jury also found appellant guilty of indecency with a child in N. W.’s case and sentenced him to twenty years’ imprisonment.

In his remaining points, appellant generally complains of jury misconduct, ineffective assistance of counsel, jury charge error, evidentiary error, and improper jury argument. We affirm.

JURY Misconduct

In point one, appellant contends the trial court erred by denying his motion for new trial on the basis that the jury, after retiring-to deliberate, received other evidence by viewing incorrect drafts of the court’s charges. Appellant attributes this occurrence to jury misconduct. See Tex.R.App. P. 21.3(f), (g).

Approximately two hours after the jury resumed deliberations the day after the close of the guih/innocence phase of trial, it was discovered by the bailiff that two draft copies of the charges were left on the table in the jury room. The draft charge in E. W.’s case contained several interlin-eations made by the trial judge. The draft charge in N. W.’s case contained an instruction on the statute of limitations for the offenses of aggravated sexual assault and indecency with a child. Each draft had the word “Copy” written in the bottom margin of the first page.

The trial court questioned the jury about whether they had read the copies or referred to them in any way, and they responded, collectively, that they had not read them or referred to them. The following exchange then occurred—

UNIDENTIFIED JUROR: I don’t believe we did, no, sir. They were laying on the table. We noticed — I picked it up, and I did notice that it said copy, because I asked Rickie, I believe, ‘Did that say copy?’ He said, “Yeah.” And that was—
THE COURT: But you-all did not refer to them; is that correct?
(THE JURY ANSWERED “NO” COLLECTIVELY)
THE COURT: So it was the same as if you had not even had them in the room then; is that correct? -

UNIDENTIFIED JUROR: Correct.

Thereafter, the trial judge polled each juror individually, and each one agreed that they had not looked at the draft charges.

At the motion for new trial hearing, appellant presented the testimony of juror Cynthia Zavaleta. Zavaleta testified that one of the male jurors picked up one of the copies “and started looking through it, each page, and then he noticed that there was some writing on the sides, and he put it back.” She testified that the unidentified juror said “it looked different,” and showed it to the foreman. Zavaleta stated that the occurrence had no effect on her decision or on the jury’s deliberations.

The State called the foreman of the jury Katherine Harrison, who testified similarly. She recalled that the papers were on the table in the jury room when the jury arrived that morning to resume deliberations. She further recalled one male juror looking at the papers and commenting that “they had said ‘copy on them.” She explained that she “pulled them over in front of [her] and noted that it said ‘copy,’ and that was it.” To her knowledge, the unidentified juror did not read or open the charges. The foreman believed the documents were copies of the same charges given to the jury and was not aware of any differences in the charges. She testified that the occurrence had no effect on deliberations and was not discussed. The trial court subsequently denied appellant’s motion for new trial.

When jury misconduct is raised in a motion for new trial, whether misconduct has occurred is a decision for the trial court, and we will not disturb that ruling absent a clear abuse of discretion. See Short v. State, 995 S.W.2d 948, 954 (Tex.App. — Fort Worth, pet. ref d); Hernandez v. State, 938 S.W.2d 503, 507 (Tex.App.— Waco 1997, pet. refd). A movant for a new trial based on jury misconduct must show that (1) misconduct occurred, and (2) the misconduct resulted in harm to the movant. See Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App. [Panel Op.] 1981). The trial court is the sole judge of the credibility of the testifying jurors. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). In the absence of pertinent findings, we must view the evidence adduced at the hearing in the light most favorable to the trial court’s ruling. See Quinn v. State, 958 S.W.2d 395, 402 (Tex.Crim.App.1997).

After reviewing the testimony of jurors Zavaleta and Harrison under the appropriate standard and because the trial court could have determined, after examining the credibility and demeanor of the testifying jurors, that no misconduct in fact occurred and that the incident had no injurious effect or influence on deliberations in this case, we cannot conclude appellant has satisfied his burden to show the jury received other evidence during deliberations that was detrimental to him. See Tex.R.App. P. 21.3(f), (g); Bath v. State, 951 S.W.2d 11, 17 (Tex.App. — Corpus Christi 1997, pet. ref'd), cert. denied, 525 U.S. 829, 119 S.Ct. 80, 142 L.Ed.2d 62 (1998). Accordingly, a new trial was not warranted and the trial court did not abuse its discretion by denying the motion on this basis. Point one is overruled.

In point two, appellant raises one of six instances of alleged ineffective assistance of counsel. In this instance, he contends trial counsel was ineffective by faffing to file a timely motion for new trial alleging that the jury viewed the incorrect drafts of the court’s charges. See Tex.R.App. P. 21.4(b).

To prevail on an ineffective assistance claim in any particular instance, appellant must satisfy the Strickland requirements. First, he must show that his counsel’s performance was deficient; second, he must show the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

The first component is met by showing appellant’s trial counsel made errors so significant he was not functioning as the “counsel” guaranteed by the Sixth Amendment to the United States Constitution. See id. When a convicted defendant contends his trial counsel was ineffective, the defendant must show the attorney’s representation fell below an objective standard of reasonableness. See id. at 687-88, 104 S.Ct. at 2064. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See id. at 688-89,104 S.Ct. at 2065. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690,104 S.Ct. at 2066.

The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. See id. at 687, 104 S.Ct. at 2064. A defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id.

Appellant’s argument under this point is superfluous. In appellant’s timely filed and verified original motion for new trial, counsel specifically raised the issue that, based on information received, the jury had been exposed to inaccurate copies of the charges. In an untimely filed amended motion for new trial, counsel merely attempted to supplement the original motion with Zavaleta’s affidavit in support of the misconduct complaint. See Tex.R.App. P. 21.4(b). The rules of appellate procedure authorize a trial court to hear evidence on a motion for new trial by affidavit or otherwise. See Tex.R.App. P. 21.7. We agree with the State that the issue of whether the original motion was sufficient to warrant a hearing on the issue became moot as soon as the trial court granted a hearing on the motion. Consequently, the fact that the trial court could not consider the amended motion and supporting affidavit was inconsequential. Counsel timely raised the issue in his original motion and the trial court granted a hearing on the motion and heard Zavale-ta’s testimony on the issue at the hearing. We perceive no ineffective assistance in this instance. Point two is overruled.

Disqualified JuROR

In point three, appellant contends the trial court erred by denying his motion for new trial on the basis of the post-trial discovery that juror Zavaleta did not live in the county where he was tried. It was appellant’s contention that this fact absolutely disqualified Zavaleta from jury service. The court of criminal appeals has ruled against appellant on this issue and determined that the requirement that a juror be a county citizen is not an absolute requirement that cannot be waived. See Mayo, 4 S.W.3d at 12. Thus, appellant’s failure to challenge Zavaleta for cause on the basis of her out-of-county status waived error. See id.

In point four, appellant contends he received ineffective assistance because trial counsel did not timely file a motion for new trial alleging that juror Zavaleta was not a resident of Tarrant County. In light of the court of criminal appeals’s disposition of appellant’s point three, this argument fails. Clearly, even had counsel filed a timely motion for new trial raising Zavaleta’s out-of-county status, the complaint would have been considered untimely because the complaint must have been raised during voir dire. See Jackson v. State, 548 S.W.2d 685, 697 (Tex.Crim.App. 1977); Matthias v. State, 695 S.W.2d 736, 740 (Tex.App.—Houston [14th Dist.] 1985, pet. ref'd). Moreover, the record indicates counsel was unaware of Zavaleta’s status until after the time for filing a motion or amended motion for new trial had expired. Accordingly, appellant has failed to show counsel’s performance was deficient in this instance. Point four is overruled.

Jury Charge/ Election

In points five and six, appellant contends counsel rendered ineffective assistance by failing to object to the allegedly erroneous jury charge in E. W.’s case. In the indictment, appellant was charged in count one with two separate acts of aggravated sexual assault of E.W. and in count two with two separate acts of indecency with E.W. The jury was charged in the disjunctive as to the offenses alleged in each count. Appellant complains trial counsel should have objected to the disjunctive charge because it permitted the jury to return a general verdict of guilt on each count without requiring unanimity on a specific offense.

The court of criminal appeals has made clear that every act of sexual assault or every act of indecency alleged in an indictment is a separate criminal offense— not simply different methods of committing the same offense, for which the defendant may be convicted. See Francis v. State, No. 1132-98, slip op. at 6-7, 1999 WL 993669, at *2 (Tex.Crim.App. Nov.3, 1999) (reh’g granted); Ex parte Goodb-read, 967 S.W.2d 859, 861 (Tex.Crim.App.1998). Here, it is not apparent from the record why the trial court charged the jury in the disjunctive for separate offenses on each count, instead of charging the jury in a separate application paragraph for each incident alleged in the indictment, or why trial counsel did not object to the disjunctive charge. Consequently, we are unable to conclude counsel’s performance was deficit by not objecting to the charge as given. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Thompson v. State, 9 S.W.3d 808, 812-15 (Tex.Crim.App.1999); Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App.1994). Furthermore, because the evidence was sufficient to support either of the offenses alleged in each count, counsel may have decided not to object to the charge to shield appellant from potentially being convicted for four criminal offenses, instead of two. Points five and six are overruled.

In point nine, appellant argues he was denied due process of law when the State was not required to allege which specific act of misconduct it relied upon for conviction. As a general rule, where evidence of multiple occurrences of the acts alleged in the indictment are presented at trial, upon request, the State is required to elect which of the instances of the charged acts it will rely for purposes of conviction. See Scoggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App.1990). Admittedly, appellant did not request an election.’ Thus, no error is implicated. Point nine is overruled.

In point ten, appellant contends trial counsel was ineffective by failing to request an election. There is no evidence in the record why counsel did not make such a request. However, because the decision to exercise the right to request an election is a matter of trial strategy, we must assume that counsel chose not to request an election as a result of reasonable professional judgment. ' See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Thompson, at 812-15; Jackson, 877 S.W.2d at 771; see also Brown v. State, 6 S.W.3d 571, 577 (Tex.App. — Tyler 1999, pet. ref d) (counsel could have reasonably believed that not requesting an election was the most prudent and effective course). Point ten is overruled.

Extraneous Offense Evidence

In points seven and eight, appellant contends the trial court erred by overruling his motion for mistrial after the State attempted to introduce evidence about the conduct of appellant’s father Phillip Mayo, who was also charged with sexually assaulting the girls, but was tried separately. He further contends he was denied effective assistance of counsel because trial counsel was forced to change his trial strategy as a result of the trial court’s rulings in this regard. A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion standard. See Kipp v. State, 876 S.W.2d 380, 339 (Tex.Crim.App.1994).

Apparently, the trial court granted an oral motion in limine prior to trial prohibiting any mention of Philip Mayo’s alleged sexual abuse. Appellant specifically complains of three instances where the State nevertheless made references to Philip Mayo’s alleged sexual misconduct with E.W. and N.W. In the first instance, appellant complains of the following opening argument by the State:

And the evidence will show that [E. W.], [N.W.] later moved in with . Jon Mayo’s father Philip Mayo, and that when [E.W.] found the faith and found the courage to tell, she told this man’s father what her father had been doing. She told her grandfather. And the evidence will show that rather than going to his son and saying this is wrong, you need help, that he, too, began—

Appellant objected that this argument was an attempt by the State to introduce alleged extraneous offenses committed by another individual which would tend to implicate and prejudice him. The trial court sustained the objection, however refused to give an instruction to disregard the argument.

In the second instance, the State was questioning police officer Quinton Williams about a conversation between N.W. and deceased police officer' Trish Craig. Williams testified that the subject matter of the conversation was sexual abuse by the step-grandfather. Appellant objected that the testimony eonstitúted “extraneous offense allegedly committed by another individual to infer guilt and/or prejudice” him. The trial court sustained the objection and instructed the jury to disregard the complained of testimony.

Finally, in the third instance, appellant complains of the following testimony by E.W. during the State’s direct-examination:

Q. When they [E. W.’s mother and appellant] separated, where did you live? A. With my grandfather, my pa-pa.
Q. Your pa-pa. And is that [appellant’s] father?
A. Yes.
Q. Okay. Who else lives there?
A. My uncle was. His — at the time his girlfriend, Chris, [N. W.], me, and my pa-pa.
Q. Did your mother live there?
A. No.
Q. Did Jamie live there?
A. No.
Q. So it was you and [N. W.]?
A. Yes.
Q. Pa-pa?
A. Yes.
Q. His girlfriend?
A. No. She was gone by that time.
Q. Okay. Was she gone right away or did she leave shortly after youall moved in?
A. She left before we moved in.
Q. Okay. And where did you and [N.W.] sleep?
A. On the couches, and then I’d end up in his bed. [Emphasis added]

Appellant objected that the testimony was “evidence of an extraneous offense allegedly committed by Phillip Mayo who is not a co-defendant.” The trial court overruled the objection.

At the close of the State’s case-in-chief, appellant again moved for a mistrial on the basis of these three instances and argued that the references to Phillip Mayo forced him to “change [his defensive] strategy,” consequently depriving him of effective assistance of counsel. Trial counsel explained: “It was felt by the Defense in terms of outlining strategy that any reference to Phillip Mayo would infer guilt upon Jon Mayo, so the strategy was essentially to try this case free of any influence that Phillip Mayo may have had with respect to these girls.” The trial court overruled the motion for mistrial.

Presumably, appellant’s contention under this point is that evidence of his father’s prior criminal conduct was somehow evidence of other crimes, wrongs, or acts under Texas Rule of Evidence 404(b). Tex.R. Evid. 404(b). Extraneous offense evidence, however, necessarily involves evidence of prior criminal conduct by the accused. See Watkins v. State, 946 S.W.2d 594, 597-98 (Tex.App. — Fort Worth 1997, pet. ref d). If the challenged evidence does not show that an offense was committed or does not connect the defendant to the offense, then it is not evidence of an extraneous offense. See id. at 598. Because the complained of argument and testimony do not suggest that appellant had any involvement with or knowledge of any instances of sexual misconduct involving Phillip Mayo and the girls, these offenses were not extraneous offenses as to appellant. See id. Consequently, the trial court did not abuse its discretion by denying appellant’s motion for mistrial on this basis.

Moreover, our disposition of this issue rejects appellant’s contention under point eight that he was denied effective assistance of counsel as a result of the trial court’s rulings. Appellant’s conclusory statement that counsel was forced to abandon the strategy which he had prepared, thus depriving him of effective assistance of counsel, is not persuasive. Nor does appellant direct this court to authority in support of his proposition. See Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.Crim.App.1995). We conclude the fact that trial counsel may elect to employ or abandon a particular trial strategy as a result of a trial court’s ruling which was clearly within the court’s discretion does not deprive a criminal defendant of effective assistance of’ counsel. Points seven and eight are overruled.

In point eleven, appellant argues the combined effects of the preceding points coupled with counsel’s errors deprived him of effective assistance of counsel. However, appellant has not met his burden to rebut the presumption that trial counsel rendered adequate assistance. To the contrary, it appears counsel vigorously defended appellant during all phases of his prosecution in the trial court. Appellant was entitled to a fair, not a perfect trial. See Ewing v. State, 549 S.W.2d 392, 395 (Tex.Crim.App.1977), overruled on other grounds, Hurley v. State, 606 S.W.2d 887, 890 (Tex.Crim.App. [Panel Op.] 1980). Isolated acts or omissions of counsel regarding procedural or evidentiary issues generally do not constitute a breach of legal duty by an accused’s counsel. See id. After examining the totality of counsel’s representation, and given our disposition of appellant’s preceding points, we cannot conclude he has affirmatively demonstrated that he was deprived of his right to effective assistance of counsel as a result of the combined effect of the alleged errors. See id. Point eleven is overruled.

Juey Argument

In point twelve, appellant argues the trial court erred by overruling his motion for mistrial due to the State’s improper jury argument. He complains of the following closing argument during the guilt/innocence phase:

Ladies and Gentlemen, if you find this man not guilty, you’re sending those girls a message that they’re untruthful, they’re not believable. You’re sending a message to the D.A.’s office and to the police that if you just have the words “custody battle,” in an aggravated sexual assault case, indecency case, in the very face of very powerful medical evidence, forget it. We’re never going to believe it. Don’t file the case, don’t take the case, don’t investigate the case.
Throw it away. It can’t be true. Is that what you want to do? Because that’s what your verdict would say.

The trial court sustained appellant’s objection that the argument was an improper plea for law enforcement, and instructed the jury to disregard the ■ .objectionable statement. Notwithstanding the curative instruction, appellant asserts harm on the basis that he was convicted and given the maximum sentences. Appellant’s conelu-sory assertion is not compelling. We agree with the State that because appellant fails to present any argument or authority to negate the presumption that the instruction to disregard cured any harm, he has waived error, if any. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.1987), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987); Bridge-water v. State, 905 S.W.2d 349, 354 n. 5 (Tex.App. — Fort Worth 1995, no pet.). Point twelve is overruled.

Conclusion

We affirm the trial court’s judgments:

      . We previously sustained the third point in appellant's brief and reversed and remanded the cause for a new trial. See Mayo v. State, 971 S.W.2d 464 (Tex.App. — Fort Worth 1998). Upon the State's petition for discretionary review, the court of criminal appeals reversed this court’s judgment and remanded the cause to us to address appellant's remaining points. See Mayo v. State, 4 S.W.3d 9, 12 (Tex.Crim.App.1999).

      . We recognize that because Francis is not yet final, it is not a part of the jurisprudence of this Stale. See Yeager v. State, 727 S.W.2d 280, 281 n. 1 (Tex.Crim.App.1987).


author: RODRIGUEZ, Justice.

text:
    The CITY OF HIDALGO AMBULANCE SERVICE, Appellant, v. Maria LIRA, Individually and as Best Friend of Pedro Lira, Jr., a Minor and as The Independent Administrator of the Estate of Pedro Lira, Sr., Appellee.
    No. 13-99-618-CV.
    Court of Appeals of Texas, Corpus Christi.
    April 6, 2000.

      Ricardo J. Navarro, Mauro Fernando Ruiz, Harlingen, for appellant.
    Francisco J. Rodriguez, Hector Leal Rodriguez, John G. Escamilla, Rodriguez, Pruneda, Tovar, Calvillo & Garcia, McAl-len, Arnulfo Medina Acosta, Law Offices of Arnulfo Acosta, PC, Pharr, for appellee.
    Before: Justices DORSEY, CHAVEZ, and RODRIGUEZ.
   OPINION

RODRIGUEZ, Justice.

The City of Hidalgo Ambulance Service (the City) brings this interlocutory appeal from the denials of two pleas to the jurisdiction. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2000). By a single issue, the City contends the trial court lacked subject matter jurisdiction because the claims alleged in the petition did not give rise to waiver of immunity under the Texas Tort Claims Act. We affirm in part and reverse and render in part.

Pedro Lira, Sr. died of a heart attack in Hidalgo County, Texas. Pedro’s widow, Maria Lira, individually, as the representative of the estate of Pedro Lira, Sr., and as best friend of her son, Pedro Lira, Jr., (the plaintiffs) sued the City, alleging its failure to timely respond to numerous calls for emergency service caused the death of her husband.

The plaintiffs alleged the City was liable under the Texas Tort Claims Act, which statutorily waives governmental immunity, and allows liability for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex.Civ.Prac. & Rem.Code Ann. § 101.021 (Vernon 1997).

By their First Amended Original Petition, the plaintiffs alleged the City was hable under the act for the operation, use, or misuse of a motor-driven vehicle. See id. § 101.021(1). Specifically, the plaintiffs alleged Mr. Lira’s death was “caused by the City of Hidalgo’s police and emergency personnel’s negligence in the operation of, the misuse of and/or their failure to use a motor-driven vehicle, specifically, a city ambulance, to timely respond to Plaintiffs emergency phone calls for medical assistance for Mr. Lira.” In turn, the City filed a plea to the jurisdiction, asserting the facts as aheged by the plaintiffs did not waive the City’s sovereign immunity because, inter alia, the plaintiffs’ complaint was that the City did not use its ambulance and there is no waiver of immunity for the non-use of a motor-driven vehicle. The trial court set a hearing for the plea; however, prior to the hearing, the plaintiffs filed their Second Amended Original Petition, omitting their claim that liability was allowed based on the operation, use, or misuse of a motor-driven vehicle and replacing it with a claim that Mr. Lira’s death was caused by the use or misuse of tangible personal or real property. See id. § 101.021(2). In particular, the petition alleged the City was liable based on the “use and/or misuse of its telephone and/or radio equipment [in] failing to timely contact and dispatch emergency personnel in response to Plaintiffs’ emergency phone calls for medical assistance for Mr. Lira.” The trial court subsequently denied the City’s plea to the jurisdiction, which addressed the claim of waiver of immunity in plaintiffs First Amended Original Petition, as moot. Thereafter, the City filed a plea to the jurisdiction based on the plaintiffs’ Second Original Amended Petition, attacking the plaintiffs’ claim of waiver of immunity based on the use or misuse of tangible property, namely emergency communication equipment. The trial court denied the plea.

The City filed a notice of appeal with this Court, seeking review of the trial court’s denial of its second plea to the jurisdiction. Thereafter, the plaintiffs filed their Third Amended Original Petition, claiming liability on the bases of operation, use, or misuse of a motor vehicle, and use or misuse of tangible personal property. The City then filed an amended notice of appeal, including as part of the appeal the trial court’s denial as moot of its first plea to the jurisdiction.

In its sole issue, the City contends the trial court erred by denying the pleas to the jurisdiction. A plea to the jurisdiction contests the trial court’s authority to determine the subject matter of the cause of action. See City of El Campo v. Rubio, 980 S.W.2d 943, 945 (Tex.App.— Corpus Christi 1998, pet. dism’d w.o.j.). “Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.” Tex. Dept, of Transportation v. Jones, 8 S.W.3d 636, 637-39 (Tex.1999).

When considering a plea to the jurisdiction, the trial court looks only to the allegations in the petition. See Rubio, 980 S.W.2d at 945; see also University of Tex. Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 771 (Tex.App. — Houston [1st Dist .] 1999, pet. filed); Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App. — Austin 1994, writ denied). We take the allegations in the pleading as true and construe them in favor of the pleader. See Rubio, 980 S.W.2d at 945 (citing Air Control Bd., 852 S.W.2d at 445). The pleadings must affirmatively demonstrate the court’s jurisdiction. See Tex. Ass’n of Business v. Air Control, 852 S.W.2d 440, 446 (Tex.1993).

The trial court in this case did not rule on the merits of the first plea to the jurisdiction in which the City challenged the plaintiffs claim of liability for operation, use, or misuse of a motor vehicle. Rather, the court denied the plea as moot because the petition, at the time of the hearing, had been amended to exclude such a theory. We cannot say the trial court erred in denying as moot the City’s first plea. The plea addressed a claim of waiver of liability that was no longer in the petition; it was indeed moot. Moreover, to the extent that the plaintiffs Third Amended Original Petition includes a claim of liability based on the operation, use, or misuse of a motor-driven vehicle, there is no appealable order from which the City complains. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2000) (permitting interlocutory appeal from order granting or denying plea to jurisdiction by governmental unit). We overrule the City’s first issue as it relates to the claim based on the operation, use, or misuse of a motorrdriven vehicle.

The City also complains the trial court erred in denying their second plea to the jurisdiction which attacked the plaintiffs claim of liability based on the use or misuse of tangible property as raised in the Second Amended Original Petition. According to the City, the plaintiffs theory of liability was based on the non-use of tangible property, and therefore did not fall within the purview of the limited waiver in the Texas Tort Claims Act. The plaintiffs contend the appeal is moot with respect to the second plea to the juxisdiction, because the deficiencies complained about in that plea were addressed in their Third Amended Original Petition. However, both petitions allege liability for use or misuse of tangible personal property (ie., emergency communication equipment) in failing to provide emergency medical services to Mr. Lira, and allege that the communication equipment was misused in other ways.

The plaintiffs alleged the failure to use and the misuse of emergency communication equipment caused Mr. Lira’s death; they did not allege that a condition of the equipment caused his death. Thus, their claim was based on the conveyance or non-conveyance of information, rather than the use or misuse of tangible personal property. Use or misuse of information does not amount to use or misuse of tangible property so as to waive governmental immunity under ’ section 101.021(2). See University of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex.1994); Sawyer v. Texas Dept, of Criminal Justice, 983 S.W.2d 310, 312 (Tex.App.— Houston [1st Dist.] 1998, pet. denied); Dear v. City of Irving, 902 S.W.2d 731, 737 (Tex.App. — Austin 1995, writ denied) (citations omitted). Furthermore, mere non-use of property will not support a claim under the Texas Tort Claims Act. See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex.1996); Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994). The word use means to “put or bring [the property] into action or service; to employ for or apply to a given purpose.” See Clark, 923 S.W.2d at 585 (quotations omitted). Although the plaintiffs assert their claim is based on the misuse of property, their pleadings complain Mr. Lira died as a result of the failure of emergency personnel to dispatch emergency personnel in a timely manner.

In Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994), the supreme court concluded that the failure to provide a patient with medication was non-use and did not waive sovereign immunity. Although the governmental employees had taken medication away from the patient, the court reasoned that the claim of waiver of immunity was based on the failure to provide the patient with her medication. See id.

In Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex.1996), the supreme court held that giving a patient oral medication instead of an injectionable drug was non-use and did not give rise to waiver of immunity under the Texas Tort Claims Act. The plaintiffs alleged the treatment prescribed was not as effective as the in-jectionable drug would have been. The court resolved that although state hospital employees gave the patient oral medication, “the gravamen of [the plaintiffs’] complaint [was] that [the defendants’] non-use of an injectionable drug was the cause of their daughter’s death.” See id.

Similarly, we conclude the gravamen of the plaintiffs complaint is the City’s non-use of the communication equipment in failing to provide medical services to Mr. Lira, which resulted in his death. Accordingly, the allegation that the City was liable for the use or misuse of the emergency communication equipment did not waive the City’s sovereign immunity. We hold the pleadings affirmatively demonstrate an absence of subject matter jurisdiction as to the plaintiffs’ claim that the City was liable for its use or misuse of tangible personal property. The City’s first issue is sustained as to the City’s claim of waiver of immunity based on that claim.

Therefore, we REVERSE the trial court’s denial of the second plea to the jurisdiction relating to the claim of waiver of immunity based on the use or misuse of tangible personal property and render judgment in the City’s favor on that claim. We AFFIRM the trial court’s denial as moot of the first plea to the jurisdiction relating to the claim of waiver based on the use of a motor-driven vehicle.

      . Governmental entities have immunity from suit without consent even if there is no question as to the liability of the sovereign. See Stewart v. Texas Lottery Com’n, 975 S.W.2d 732, 735 (Tex.App. — Corpus Christi 1998, no pet.) (citing Missouri Pacific R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex.1970); Green Int’l, Inc. v. State, 877 S.W.2d 428, 432 (Tex.App. — Austin 1994, writ dism’d)). Immunity from suit bars an action against the state unless the state expressly consents, by statute or express legislative permission, to the suit. See Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The party suing the government must establish the state’s consent, either by reference to a statute or express legislative permission. See Tex. Dept, of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex.1999).

      . The interlocutory appeal acted to stay proceedings in the trial court only with respect to commencement of trial. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(b) (Vernon Supp. 2000); City of Austin v. L.S. Ranch, Ltd.., 970 S.W.2d 750, 754 n. 3 (Tex.App. — Austin 1998, no pet.). The Third Amended Original Petition was included as an exhibit to the plaintiffs motion to dismiss the appeal as moot, and also appears in the clerk’s record.


author: YÁÑEZ, Justice.

text:
    McALLEN MEDICAL CENTER, INC., Appellant, v. Ramiro CORTEZ, Jr. and that Class of All Persons who Underwent Cardiac Surgery at McAllen Medical Center from December 1, 1993 through May 21, 1999, Appellees.
    No. 13-99-380-CV.
    Court of Appeals of Texas, Corpus Christi.
    April 6, 2000.
    Rehearing Overruled May 25, 2000.

      Roger W. Hughes, Ferriel C. Hamby, Jr., Patricia Kelly, Adams & Graham, Har-lingen, for appellant.

      Michael A. Caddell, Cynthia B. Chapman, Joe Phillips, Caddell & Chapman, Houston, Ezequiel Reyna, Jr., Law Office of Ezequiel Reyna, Jr., Weslaco, Mark A. Cantu, Law Office of Mark A. Cantu, McAllen, Juan Rocha, Jr., Herrera, Vega & Rocha, San Antonio, for appellees.
    Donald P. Wilcox, Cecil Jay Francisco, Matthew T. Wall, Austin, for Amicus Curiae.
    Before: Justices HINOJOSA, YÁÑEZ, and RODRIGUEZ.
   OPINION

YÁÑEZ, Justice.

This is an interlocutory appeal from an order preliminarily certifying a settlement class and approving a proposed settlement of claims against a settling defendant in a class action. Plaintiff/Appellee Ramiro Cortez, Jr. represents a class of all persons who underwent cardiac surgery at McAllen Medical Center, Inc .(MMC) from December 1, 1993 until May 21, 1999. MMC, a non-settling defendant, appeals, claiming the trial court erred in: (1) holding a certification hearing with only minimal notice to MMC; (2) granting certification of a temporary settlement class as to the settling defendant, Dr. Bracamontes, without determining whether the class satisfies the prerequisites of Federal Rule 23 or Texas Rule 42; (3) certifying the settlement class when the case was automatically abated under section 17.505 of the Deceptive Trade Practices Act (DTPA); and (4) ordering MMC to send a supplemental notice to class members. Appellee challenges MMC’s standing to appeal the trial court’s order certifying a class for purposes of settlement with Dr. Bracamontes only. Because the appeal is premature and MMC lacks standing, we dismiss.

Factual Background

On May 21, 1999, the Cortez plaintiffs filed a class action petition against MMC and Dr. Bracamontes, a cardiac surgeon who performs cardiac surgery at MMC. Plaintiffs alleged causes of action against both defendants for fraud, breach of contract, conspiracy to commit these acts, and violations of the DTPA, based on defendants’ alleged misrepresentations to cardiac surgery patients that all MMC cardiac surgeons were board certified. On the afternoon of June 7, 1999, MMC received notice of a hearing, scheduled the following day, June 8, at 1:30 p.m., regarding plaintiffs’ motion for: (1) class certification of claims against Dr. Bracamontes; (2) preliminary approval of settlement with Dr. Bracamontes; (3) setting of a fairness hearing on the settlement; and (4) notice of settlement. At the hearing, counsel for plaintiffs and Dr. Bracamontes announced they had reached an agreement as to the certification of a settlement class against Dr. Bracamontes and a settlement of claims against him. MMC objected to certification of the settlement class and the settlement on various grounds. Plaintiffs argued that the settlement involved only the claims against Dr. Bracamontes, and that MMC therefore lacked standing to object to the proposed settlement. The trial court made no ruling concerning the standing issue, but provided MMC an opportunity to submit a response to plaintiffs’ motion. MMC filed an “Objection to Class Certification for Purposes of Settlement” on June 11, 1999. Thereafter, the trial court entered an order on June 11, 1999 that (1) certified a class for only the claims against Dr. Bracamontes; (2) preliminarily approved the settlement; (3) scheduled a fairness hearing on the settlement; and (4) provided for class notice of the settlement.

Parties’ Contentions

The threshold issue in this case is whether a non-settling defendant has standing to object to the preliminary certification of a “settlement only” class against a settling co-defendant. MMC contends it has the requisite standing to object to certification because both certification and-the settlement itself affect MMC’s rights. Specifically, MMC contends it is harmed by certification because: (1) the findings supporting certification as to Dr. Braca-montes involve the same issues as those regarding certification as to MMC; (2) the settlement provides an opportunity for class counsel to communicate with class members about claims against MMC; (3) the settlement agreement is against public policy because it requires Dr. Bracamontes to disclose confidential patient information; and (4) the agreement obstructs MMC’s potential contribution rights in any individual medical malpractice lawsuits. Plaintiffs argue MMC has no standing to object to the trial court’s certification of the settlement class or preliminary approval of the settlement.

Appellate Jurisdiction

An appellate court has jurisdiction of an appeal from an interlocutory order only when specifically authorized by statute. Story v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998); FirstCollect, Inc. v. Armstrong, 976 S.W.2d 294, 298 (Tex. App.— Corpus Christi 1998, pet. dism’d w.o.j.); Clements v. League of United Latin Amer. Citizens, et al., 800 S.W.2d 948, 951 (Tex.App. — Corpus Christi 1990, no writ). We have jurisdiction over an appeal from a trial court’s order certifying a class pursuant to section 51.014 of the civil practice and remedies code. See Tex.Civ.PRAC. & Rem.Code Ann. § 51.014(a)(3) (Vernon Supp.2000); In re M.M.O., 981 S.W.2d 72, 79 (Tex.App. — San Antonio 1998, orig. proceeding). In an appeal under section 51.014(a)(3), wé do not consider questions related to the merits of the class claims, nor do we consider the probability of the class’s success on the merits. In re M.M.O., 981 S.W.2d at 79 (citing Microsoft Corp. v. Manning, 914 S.W.2d 602, 607 (Tex.App. — Texarkana 1995, writ dism’d)). We may, however, consider all matters pertaining to class certification encompassed within the certification order. Id. (citing American Express Travel Related, Servs. Co. v. Walton, 883 S.W.2d 703, 707 (Tex.App. — Dallas 1994, no writ)). We construe MMC’s points as an interlocutory challenge to certification which section 51.014(a)(3) permits.

Standard of Review

Our review of a certification order under rule 42 is limited to determining whether the trial court abused its discretion. FirstCollect, 976 S.W.2d at 298; Cedar Crest Funeral Home, Inc. v. Lashley, 889 S.W.2d 325, 328 (Tex.App. — Dallas 1993, no writ); Clements, 800 S.W.2d at 952. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the trial court made an error in judgment. Morgan v. Deere Credit, Inc., 889 S.W.2d 360, 365 (Tex.App. — Houston [14th Dist.] 1994, no writ); Clements, 800 S.W.2d at 952. Rather, it is a question of whether the court acted without reference to any guiding rules and principles, that is, whether it acted arbitrarily or unreasonably. Morgan, 889 S.W.2d at 365. The reviewing court must view the evidence in the light most favorable to the trial court’s ruling and indulge every presumption in favor of that ruling. Texas Commerce Bank Nat. Ass’n v. Wood, 994 S.W.2d 796, 801 (Tex.App. — Corpus Christi 1999, pet. dism’d); FirstCollect, 976 S.W.2d at 298. A trial court does not abuse its discretion if it bases its decision on conflicting evidence. Lashley, 889 S.W.2d at 328. Rule 42 of the Texas Rules of Civil Procedure is patterned after corresponding Rule 23 of the Federal Rules of Civil Procedure, and the decisions interpreting the federal rule are persuasive authority. Wood, 994 S.W.2d at 802; see Fed.R.Civ.P. 23.

Standing

Standing is a component of subject matter jurisdiction; it cannot be waived and may be raised for the first time on appeal. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993); Lashley, 889 S.W.2d at 329.

Apparently, no Texas court has addressed the discrete issue of whether a non-settling defendant has standing to complain about the preliminary certification of a “settlement only” class against a settling co-defendant. The Fifth Circuit has held, however, that non-settling defendants generally have no standing to complain about a settlement, since they are not members of the settling class. Trans-american Ref. Corp. v. Dravo Corp., 952 F.2d 898, 899 (5th Cir.1992) (citing In re Beef Indus. Antitrust Litig., 607 F.2d 167 (5th Cir.1979) (non-settling defendant not prejudiced by settlement has no standing to complain of settlement)). There is a recognized potential exception to the general rule if the settlement agreement purports to strip non-settling defendants of rights to contribution or indemnity. Id. (citing Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 (9th Cir.1987)). In the present case, neither the settlement agreement itself nor the court’s order preliminarily approving the settlement contains any language barring MMC from asserting any contribution claims against Dr. Braca-montes. Moreover, although many states have enacted “settlement bar” statutes, which address contribution rights in such circumstances, Texas contains no such statute. MMC contends the proposed settlement “impacts on the medical malpractice suits anticipated by Class Counsel” in that it raises questions concerning whether Dr. Bracamontes could be joined in any such suits and whether he should be submitted as a “settling person” under section 33.003 of the civil practice and remedies code. Because MMC has not now and may never be found liable on any “anticipated” medical malpractice claims, any “interference” with its contribution rights which it claims to have suffered is highly speculative.

MMC also complains that certification of a “settlement only” class provides class counsel with an “opportunity” to use the official notice to class members for “improper solicitation” of claims against MMC. MMC fails, however, to identify any specific instances of improper communication and/or solicitation by class counsel. Again, we find the “potential” harm to MMC because of the opportunity for improper communication to be highly speculative.

MMC also complains that the settlement agreement requires Dr. Bracamontes to disclose confidential patient information by requiring him to provide information concerning surgeries he performed at MMC. The trial court is charged with the responsibility of determining, following a fairness hearing, whether the terms of the settlement are fair, adequate, and reasonable. General Motors Corp. v. Bloyed, 916 S.W.2d 949, 958-59 (Tex.1996). Because the fairness hearing has not been held, the trial court has made no such determination. The order preliminarily approving the settlement is “without prejudice to any finding the Court may make following the Fairness Hearing.” Accordingly, any challenge to the terms of the settlement is premature. It is fundamental that a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe. Camarena v. Texas Employment Com’n, 754 S.W.2d 149, 151 (Tex.1988).

MMC contends it has standing to object to certification “regardless of whether it has standing to object to the settlement.” MMC cannot, however, do indirectly what it may not do directly. See In re Beef Industry Antitrust Litigation, 607 F.2d at 172 (where non-settling defendant challenged procedures followed by district court in approving partial settlement, held non-settling defendants in partial settlement have no standing to object to fairness or adequacy of settlement, reasoning non-settling defendant cannot do indirectly what it may not do directly). We hold MMC lacks standing to object to the order preliminarily certifying the settlement class.

MMC contends the trial court erred in preliminarily certifying the settlement class without conducting a “rigorous analysis” of whether the prerequisites for class action were satisfied. Rule 42’s certification requirements of numerosity, commonality, typicality, and adequacy of representation must always be met, even when cases are settled before certification of the class. Bloyed, 916 S.W.2d at 954. In settlement class actions, the actual class ruling is deferred until after hearing on the settlement approval, following notice, to the class. Id. (citing 2 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 11.27, at 11-50 (3d ed.1992)). Accordingly, at the fairness hearing on the proposed settlement with Dr. Bracamontes, the trial court must resolve two primary issues: (1) whether to certify the class under the Rule 42 prerequisites of numerosity, commonality, typicality, and adequacy of representation; and if so, (2) whether the settlement is fair, adequate, and reasonable. Id. at 958-59. The trial court’s order preliminarily certifying the settlement class against Dr. Bracamontes notes that its findings of fact and conclusions of law are “preliminary and conditional ... subject to whatever may be established at the Fairness Hearing.”

We hold the trial court did not abuse its discretion in preliminarily certifying a settlement class prior to conducting a fairness hearing on the issues of certification and whether the settlement is fair, reasonable, and adequate. We further hold this appeal is premature, that MMC lacks standing to object to certification of the settlement class, and accordingly, that the appeal should be DISMISSED. It is so ordered.

Because we hold MMC lacks standing, we do not address MMC’s remaining issues. See Tex.R.App.P. 47.1.

      . On June 7, 1999, MMC filed a Plea in Abatement, denying it had received presuit notice pursuant to section 17.505 of the DTPA, see Tex.Bus. & Com.Code Ann. § 17.505 (Vernon Pamph.2000), and Art. 4590i, § 4.01, see Tex. Rev.Civ.Stat.Ann. art. 4590i, § 4.01 (Vernon Supp.2000). On June 15, 1999, Cortez filed a Third Amended Petition, in which he states that a DTPA claim is brought only against Dr. Bracamontes, not MMC. On June 17, 1999, the trial court denied MMC’s Plea in Abatement.

      . The fairness hearing has not yet been held.

      . See Tex.Civ.Prac. & Rem.Code Ann. § 33.003 (Vernon 1997).

      . Without addressing the merits of MMC’s challenge, we note the settlement agreement specifically requires Dr. Bracamontes to provide only information which may legally be disclosed under Texas law.


author: PER CURIAM.

text:
    Larry Dean McCLAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-99-321-CR.
    Court of Appeals of Texas, Waco.
    April 12, 2000.
    A. Lee Harris, Whitney, G. Philip Robertson, Robertson & Robertson, Clifton, for appellant.
    Dan V. Dent, Dist. Atty., Hillsboro, for appelleé.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

PER CURIAM.

Larry Dean McClain was convicted by the trial court of two offenses of possession of a controlled substance in November of 1995. His sentence was probated. On October 1, 1999, McClain’s probation was revoked and he was sentenced to eighteen months in state jail for each offense with credit for time served. McClain has filed a motion to dismiss his appeal supported by “Appellant’s Withdrawal of Notice of Appeal.”

In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states:

(a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.

Tex.R.App. P. 42.2(a).

We have not issued a decision in this appeal. “Appellant’s Withdrawal of Notice of Appeal” is signed by both McClain and his attorney. The clerk of this court has sent a duplicate copy of “Appellant’s Withdrawal of Notice of Appeal” to the trial court clerk. The requirements of the rule are met. Id. When the requirements of this rule have been met, a formal motion to dismiss is not required, but it does provide an efficient method of bringing the withdrawal of the notice of appeal to this court’s attention. See id.

McClain’s appeal is dismissed.