text:
    WARD COUNTY IRRIGATION DISTRICT NO. 1, Ward County Irrigation District No. 3, and Reeves County Water Improvement District No. 2, Appellants, v. RED BLUFF WATER POWER CONTROL DISTRICT, Appellee.
    No. 08-04-00322-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2005.

      Doug Caroom, Delgado, Acosta & Bick-erstaff, Health, P.L.L.C., Austin, Glenn Jarvis, Law Office of Glenn Jarvis, McAl-len, for appellants.
    Robert Scogin, Kermit, for appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Ward County Irrigation District No. 1 (Ward District 1), Ward County Irrigation District No. 3 (Ward District 3), and Reeves County Water Improvement District No. 2 (Reeves District 2) appeal from a judgment declaring that the two irrigation districts, following their conversion from water improvement districts, are no longer members of the Red Bluff Water Power Control District (Red Bluff District), and therefore, are not entitled to elect a director to serve on the Red Bluff District’s board of directors. We reverse and render.

FACTUAL AND PROCEDURAL SUMMARY

In 1933, the Legislature enacted Articles 7807d and 7807dd which provided for the organization and government of water improvement districts and water power control districts. Ward District 1, Ward District 3, Reeves District 2, and four other water improvement districts have been member districts or divisions of the Red Bluff District since 1934 when the latter became a water power control district and obtained authority to construct and maintain the Red Bluff Dam and Reservoir on the Pecos River. Since the Red Bluff Dam was constructed, a primary function of the Red Bluff District and its seven divisions has been to supply irrigation water to landowners for agricultural purposes. As required by Article 7807d, the Red Bluff District entered into a master contract with its member divisions in 1934. The master contract specifies the rights and obligations of the parties and establishes each division’s pro rata interest in the Red Bluff District and the water to be distributed.

Each of the seven divisions is governed by its own board of directors elected from the district. The Red Bluff District is also governed by a board of directors with one director elected from each division. In elections conducted in water improvement districts and water power control districts, voter qualification is based upon residency in the district. In 2001 and 2003, respectively, Ward District 1 and Ward District 3 converted from water improvement districts operating under Chapter 55 of the Water Code to limited purpose irrigation districts operating under Chapter 58 of the Texas Water Code. Both Ward District 1 and Ward District 3 expressly reserved their powers under Texas Water Code Sections 55.165 (pertaining to drainage ditches and levees) and 55.193 (pertaining to selling water rights) so that they could continue to function in harmony within the Red Bluff District. As a result of the conversion, voter qualification in elections conducted by the irrigation districts is now based upon land ownership as specified in Section 58.022 of the Water Code.

'An election for the Red Bluff District board of directors was scheduled to be held on May 15, 2004 in Ward District 1 and Ward District 3. Because Tom Nance (Ward District 1) and Ava Gerke (Ward District 3) were unopposed, the election was canceled and the two candidates were declared to be the elected directors of their respective districts. The Red Bluff District, however, refused to seat them on the board of directors.

The Red Bluff District subsequently filed suit seeking a declaratory judgment that Ward District 1 and Ward District 3 were no longer members of the Red Bluff District, and therefore, were not entitled to have directors on the Red Bluff District board of directors. Ward District 1 and Ward District 3 answered and counterclaimed for declaratory and injunctive relief. Reeves District 2 filed a petition in intervention in support of the Ward districts.

Following a bench trial, the court entered judgment in favor of the Red Bluff District declaring that: (1) Ward District 1 and Ward District 3 are no longer members of the Red Bluff District and are not entitled to elect from their districts a member to the Red Bluff board of directors; (2) the judgment does not abrogate the contractual rights and obligations of the Ward District under the master contract; and (3) the judgment does not abrogate the rights of the Ward Districts to receive funds from the Pecos River Compact account. The trial court found against the Ward and Reeves Districts on their claims for affirmative relief and awarded attorney’s fees to the Red Bluff District. At the request of the parties, the trial court entered findings of fact and conclusions of law. Among other things, the court concluded that its judgment did not disenfranchise any qualified voter residents within the Red Bluff District boundaries because these voters may vote in the nearest division to their residence. The Ward and Reeves Districts filed notices of appeal.

STATUS OF THE WARD DISTRICTS

Raising multiple issues, all three Appellants challenge the trial court’s conclusion that the conversion of Ward District 1 and Ward District 3 from water improvement districts to irrigation districts disqualifies them as organized divisions of the Red Bluff District entitled to elect a director to serve on Red Bluffs board of directors. Appellants argue that Articles 7807d and 7807dd must be considered in light of and harmonized with subsequent changes in law, including the enactment of Section 58.038 which permits a water improvement district to convert to a Chapter 58 irrigation district. According to Appellants, these changes in the law since 1933 indicate that application of Article 7807d must not be restricted to water improvement districts. As the facts are undisputed, this issue turns on the construction of Articles 7807d and 7807dd and various provisions of the Water Code.

Standard of Review

Statutory construction is a question of law which we review de novo. Texas Department of Transportation v. Needham, 82 S.W.3d 314, 318 (Tex.2002). In interpreting a statute, a court must diligently attempt to ascertain legislative intent and must keep in mind the old law, the evil, and the remedy. Tex. Gov’t Code Ann. § 312.005 (Vernon 2005). Further, we must interpret the statute in a manner that gives effect to the plain meaning of the statute’s words and effectuates the Legislature’s intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). Legislative intent should be determined by reading the language used and construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 380 (Tex.1998); Taylor v. Firemen’s & Policemen’s Civil Service Commission, 616 S.W.2d 187, 190 (Tex.1981). We should read every word, phrase, and expression as if it were deliberately chosen, and presume that words excluded from the statute were excluded purposefully. Gables Realty Ltd. Partnership v. Travis Central Appraisal District, 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). We must also presume that: (1) compliance with the state and federal constitutions is intended; (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest. Tex. Gov’t Code Ann. § 311.021. Regardless of whether the statute is ambiguous, we may consider, among other matters, the object the statute seeks to obtain, the circumstances under which the statute was enacted, legislative history, common law or former statutory provisions, including laws on the same or similar subjects, and the consequences of a particular construction. Tex. Gov’t Code Ann. § 311.023. Additionally, the court must consider “the consequences that would follow” from its construction of a statute and avoid absurd results. Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991). Finally, we presume that the Legislature enacted a statute with complete knowledge of the existing law and with reference to it. Acker v. Texas Water Commission, 790 S.W.2d 299, 301 (Tex.1990).

Historical Background

A review of the historical background of Texas law enacted to encourage irrigation in the arid parts of the state is helpful to our analysis of Articles 7807d and 7807dd. In 1889, the Legislature enacted the first law to encourage irrigation and provide for the acquisition of the right to the use of water in the arid parts of the state. See Act of March 19, 1889, 21st Leg., ch. 88, 1889 Tex. Gen. Laws 100. That Act declared that the unappropriated waters of every river or natural stream within the arid portions of the state are the property of the public and may be acquired for irrigation, domestic and other beneficial uses. Id. It provided for the construction and maintenance of canals, ditches, reservoirs, and wells for irrigation by corporations formed and chartered under the Act. Id. Corporations so created could acquire land and borrow money for the construction, maintenance, and operation of its canals, ditches, flumes, feeders, reservoirs, and wells, and could issue bonds and mortgage its corporate property to secure the payment of any debt contracted for these purposes. Id.

In 1904, the citizens of Texas approved a constitutional amendment which authorized any political division or defined district to authorize, by a two-thirds vote, the issuance of bonds, the levy and collection of taxes to pay the interest thereon, and to provide a sinking fund for the bonds’ redemption. Tex. Const, art. 3, § 52(b). The bonds could be issued for (1) the improvement of rivers, creeks, and streams to prevent overflows, and to permit navigation or irrigation; and (2) the construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes of irrigation, drainage or navigation. Id. The amount of bonds issued by the district could not exceed one-fourth of the assessed valuation of real property within the district. Id. Pursuant to Article 3, § 52(b), the Legislature in 1905 enacted legislation authorizing the creation of public irrigation districts. See Acts of 1905, 29th Leg., R.S., ch. 122, 1905 Tex. Gen. Laws 235; see also Hidalgo County Water Control & Improvement District No. 1 v. Hidalgo County, 134 S.W.2d 464, 467 (Tex.Civ.App.-San Antonio 1939, writ ref'd).

In 1913, the Legislature repealed the 1905 law and enacted a new law pertaining to irrigation districts. See Acts of 1913, 33rd Leg., R.S., ch. 172, 1913 Tex. Gen. Laws 380; Acts of 1913, 33rd Leg., R.S., ch. 172, § 105, 1913 Tex. Gen. Laws 408. Just four years later, the Legislature repealed the 1913 law and replaced it with a new law pertaining to water improvement districts. Act of March 19, 1917, 35th Leg., R.S., ch. 87,1917 Tex. Gen. Laws 172; Act of March 19, 1917, 35th Leg., R.S., ch. 87, § 107, 1917 Tex. Gen. Laws 206; see Hidalgo County Water Control & Improvement District, 134 S.W.2d at 467. Irrigation districts organized under the former law, such as Ward County Irrigation District No. 1, were declared to be valid but would operate under the new law applicable to water improvement districts.

During this same legislative session, it was recognized that the restrictions imposed by Article 3, § 52(b) on the amount of indebtedness had the effect of restricting irrigation development rather than encouraging it. See Tex. Const, art. 3, § 52(b), Interpretive Commentary. Thus, Article 16, § 59, also known as the Conservation Amendment, was added to the constitution allowing the creation of conservation and reclamation districts as governmental agencies with the power to incur such debts as might be necessary. Id. At a called session of the same Legislature, two acts were passed for the purpose of effectuating the Conservation Amendment: the Canales Act and the Laney Act. The Canales Act provided for the creation of conservation and reclamation districts with the powers of water improvement districts and it authorized existing water improvement districts and irrigation districts to convert to a conservation and reclamation district with the benefits of the Conservation Amendment without a change of name.

In 1925, the Legislature enacted new legislation providing for the organization of water control and improvement districts under and in accordance with the provisions of Article 3, § 52 or Article 16, § 59. See Acts 1925, 39th Leg., R.S., ch. 25, 1925 Tex. Gen. Laws 86 (Tex.Rev.Civ.Stat. art. 7880-1 et seq. and later codified in Chapter 51 of the Texas Water Code). This legislation permitted the conversion of any existing water improvement district or irrigation district to a water control and improvement district. See Acts 1925, 39th Leg., R.S., ch. 25, § 143, 1925 Tex. Gen. Laws 132.

The Red Bluff District was initially created in 1928 as a water improvement district covering portions of Reeves, Ward, Loving, and Pecos Counties. It embraced within its boundaries seven water improvement districts: (1) Loving County Water Improvement District No. 1; (2) Reeves County Water Improvement District No. 2; (3) Ward County Water Improvement District No. 3; (4) Ward County Irrigation District No. 1; (5) Ward County Water Improvement District No. 2; (6) Pecos County Water Improvement District No. 2; and (7) Pecos County Water Improvement District No. 3.

In the mid-1920’s, the federal government approved a plan to construct a dam and reservoir on the Pecos River. Before the federal government would provide financing for the Red Bluff Dam project, the Public Works Administration insisted that a master district be created with authority over the seven water improvement districts. Thus, in 1933, the Legislature enacted Articles 7807d and 7807dd, which provided for the organization, reorganization, operation and government of water improvement districts and water power control districts. Pursuant to Article 7807d, the Red Bluff District converted from a water improvement district to a water power control district with authority to construct and maintain the Red Bluff Dam. The seven water improvement districts within the boundaries of the Red Bluff District became its members and they operated under the law applicable to water improvement districts.

Chapters 55 and 58

Much of the law pertaining to organized water districts has been codified, and it includes several types of general law districts:

• water control and improvement districts (Chapter 51);
• underground water conservation districts (Chapter 52);
• fresh water supply districts (Chapter 53);
• water improvement districts (Chapter 55);
• drainage districts (Chapter 56);
• levee improvement districts (Chapter 57);
• irrigation districts (Chapter 58);
• regional districts for water, sanitary sewer, drainage, and municipal solid waste disposal (Chapter 59); and
• navigation districts (Chapters 60-63).

Water improvement districts are governed by Chapter 55 of the Water Code. See Tex. WateR Code Ann. § 55.021 (Vernon 2002). Irrigation districts created under the laws of 1905, 1913, and 1915 are governed by this same chapter. TexWater Code Ann. § 55.050. A water improvement district may provide for irrigation of the land within its boundaries, and a district operating under Article 16, § 59 may furnish water for domestic, power, and commercial purposes. Tex. WateR Code Ann. § 55.161(a), (b). A district may be formed to cooperate with the United States under federal reclamation laws for the purpose of (1) construction of irrigation and drainage facilities necessary to maintain the irrigability of the land; (2) purchase, extension, operation, or maintenance of constructed facilities; or (3) assumption, as principal or guarantor, of indebtedness to the United States on account of district lands. TexWater Code Ann. § 55.161(c). A water improvement district may purchase or construct improvements and facilities necessary for irrigation of land in the district, and if operating under Article 16, § 59, improvements and facilities necessary to supply, deliver, and sell water for domestic, power, and commercial purposes. Tex. WateR Code Ann. § 55.163.

The Legislature enacted Chapter 58 in 1977 to provide for the creation of irrigation districts under and subject to authority, conditions, and restrictions of either Article 3, § 52 or Article 16, § 59. Tex. WateR Code Ann. § 58.011 (Vernon 2004). Irrigation districts operating under Chapter 58 are limited purpose districts established primarily to deliver untreated water for irrigation and to provide for the drainage of lands and such other functions as are incidental to the accomplishment of these limited purposes. Tex. WateR Code Ann. § 58.121. Any water improvement district (Chapter 55) or water control and improvement district (Chapter 51) which furnishes water for irrigation and does not furnish treated water or sewer services may be converted into a district operating under Chapter 58. Tex. WateR Code Ann. § 58.038. A district that converts into an irrigation district has all powers, authority, functions, and privileges provided in Chapter 58 in the same manner and to the same extent as if the district had been created by that chapter. Tex. WateR Code Ann. § 58.041. Significantly, a district which converts to an irrigation district under Section 58.038 may continue to exercise all necessary powers under any specific conditions provided by the chapter under which the district was operating before conversion, except it may not continue to engage in the treatment or delivery of treated water for domestic consumption or the construction, maintenance, or operation of sewage facilities. Tex. WateR Code Ann. § 58.042(a). In order to continue to reserve its powers under Section 58.042(a), the governing body of the district must specify in the conversion order the specific statutory provisions which are to be preserved and made applicable to the operations of the district after conversion. Tex. WateR Code Ann. § 58.042(b). It is undisputed that the Ward Districts complied with the requirements of Chapter 58 when they converted from water improvement districts to irrigation districts and their conversion orders specified their reserved powers.

Public Policy and Legislative Intent

It is the public policy of the state to provide for the conservation and development of the state’s natural resources, including (1) the control, storage, preservation, and distribution of the state’s water resources for irrigation, power, and other useful purposes, and (2) the reclamation and irrigation of the state’s arid, semiarid, and other land needing irrigation. See Tex. Water Code Ann. § 1.003 (public policy). Consistent with this policy, Texas water law has continuously evolved to meet the changing needs of the state, including the arid and semi-arid regions. Since the enactment of Articles 7807d and 7807dd, the Legislature has authorized the creation of many types of water districts, including Chapter 58 irrigation districts. By statutory enactment, the Legislature has insured that each district has the functions, powers, authority, rights, and duties that will permit accomplishment of the purposes for which it was created or the purposes authorized by the constitution, the Water Code, or any other law. See Tex. Water Code Ann. § 49.211(a)(Vernon Supp.2004-05)(powers and duties of general law districts); Tex. Water Code Ann. § 58.122 (powers and duties of irrigation districts). In an obvious effort to be responsive to changes in the various districts, the Legislature has permitted the conversion of one type of water district to another, and has allowed the converting district to retain its former powers. Taking a restrictive approach to Articles 7807d and 7807dd is inconsistent with these expressions of legislative intent.

At the time Articles 7807d and 7807dd were enacted, there existed only two types of districts: water improvement districts, including those that had been initially created as irrigation districts under the prior law, and water control and improvement districts created pursuant to the 1925 law. Significant to the trial court’s analysis, the Legislature initially included water control and improvement districts as a type of organized water district which could become a division of a water power control district, but it amended the statute during the first called session to omit water control and improvement districts from the purview of Article 7807d. Red Bluff District argues, as it did in the trial court, that this change in the statute reflects a legislative intent to restrict membership in water power control districts to water improvement districts. This is certainly one view of the change, but Appellants urge an alternative interpretation. Rather than evidencing an intent to forever restrict application of Article 7807d to water improvement districts, it is equally possible that the Legislature intended only to exclude the more powerful water control and improvement districts from inclusion in the water power control district. Given the overall approach by the Legislature to water law, the latter interpretation is the more reasonable one.

Powers of Water Improvement Districts and Chapter 58 Irrigation Districts

The trial court also concluded that application of Articles 7807d and 7807dd must be restricted to water improvement districts because these districts have greater powers than the limited purpose irrigation districts. By statutory enactment, the Legislature has insured that both water improvement districts and irrigation districts have all functions, powers, authority, rights, and duties that will permit accomplishment of the purposes for which the district was created or the purposes authorized by the constitution, the Water Code, or any other law. See Tex. Wateh Code Ann. § 49.211(a)(powers and duties of general law districts). A similar provision is included in Chapter 58:

The district has the functions, powers, authority, rights, and duties which will permit the accomplishment of the purposes for which it was created, including the investigation and, in case a plan for improvements is adopted, the construction, maintenance, and operation of necessary improvements, plants, works, and facilities, and the acquisition of water rights and all other properties, land, tenements, materials, borrow and waste ground, easements, rights-of-way, and everything considered necessary, incident, or helpful to accomplish by any practicable mechanical means any one or more of the objects authorized for the district, subject only to the restrictions imposed by the Constitutions of Texas or the United States. A district also may acquire property deemed necessary for the extension or enlargement of the plant, works, improvements, or service of the district.

Tex. Watee Code Ann. § 58.122.

As we have already noted, Section 58.042 permits a water improvement district, after conversion to an irrigation district, to continue to exercise “all necessary specific powers under any specific conditions” provided by Chapter 55 under which the district was operating before conversion. Both Ward District 1 and Ward District 3 retained specific powers under Chapter 55 so that they could remain functional member divisions of the Red Bluff District. There is no meaningful difference in powers between the Ward Districts following their conversion to Chapter 58 irrigation districts, and therefore, no practical reason to restrict the application of Articles 7807d and 7807dd to water improvement districts.

Election Procedures

The trial court determined that Chapter 58 irrigation districts cannot be members of the Red Bluff District because Chapter 58 provides for a different election procedure. All water districts are governed by a board of directors with the number of directors established by the specific law applicable to the district. Tex. Water Code Ann. § 49.051 (Vernon 2000). Unless otherwise provided by law, the elections are conducted in accordance with the Election Code. Tex. WateR Code Ann. § 49.101; see Article 7807d, § 9 (providing that all elections for directors of water power control districts to be held within each division must be done in accordance with the provisions of law providing for holding of elections within water improvement districts, and where consistent, with general election law). Except as otherwise provided by law, to be eligible to vote in an election, a person must:

• be a qualified voter as defined by Section 11.002 on the day the person offers to vote;
• be a resident of the territory covered by the election for the office or measure on which the person desires to vote; and
• satisfy all other requirements for voting prescribed by law for the particular election.

Tex. Election Code Ann. § 11.001.

Chapter 58 irrigation districts are distinct, however, because eligibility to vote in elections conducted by the district is based on ownership of irrigable land. Section 58.222 provides:

Notwithstanding the Election Code and any other law, a landowner or the landowner’s registered representative under this subchapter is entitled to one vote in an election conducted by a district only if the landowner:
(1) owns at least one acre of irrigable land located within the district’s boundaries that is subject to an assessment for maintenance and operating expenses under Section 58.305(a) and (b);
(2) is entitled to receive and use irrigation water delivered by the district through the district’s irrigation facilities; and
(3) satisfies all other requirements for voting prescribed by this subchapter.

Tex. WateR Code Ann. § 58.222.

Ordinarily, property ownership is not a valid qualification for voting because it is an unconstitutional denial of equal protection. See Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970), Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). But there is an exception to this rule. In Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973), the United States Supreme Court considered whether a California statute which limited the vote for the board of directors of a water storage district to district landowners violated the equal protection clause. The water district existed for the purpose of storage and distribution of irrigation waters to farms within the district and provided no other general public services. Its costs were assessed against land in proportion to the benefits received. The Court concluded that the statute did not violate the equal protection clause because of the special limited purpose of district and the water district election was of sufficient “special interest” to the taxpaying landowners that the franchise could constitutionally be denied to others. Id., 410 U.S. at 728, 93 S.Ct. at 1229. Because irrigation districts are limited purpose districts, and presumably would have a disproportionate effect on landowners, it appears that the Salyer exception would apply.

Appellants argue that this difference in voter eligibility is irrelevant to our analysis of Articles 7807d and 7807dd because Section 58.222 only applies to elections of the irrigation district’s own board of directors and does not apply to the election of an irrigation district’s director serving on the Red Bluff District board of directors. We agree. The board of directors of Ward District 1 and Ward District 3 are elected according to the procedures prescribed by Chapter 58, but the election for the Red Bluff District board of directors is conducted in accordance with Article 7807d and Chapter 55 of the Water Code. Article 7807d, § 9 provides that all elections for the directors of a water power control district are conducted in accordance with general election law and the provisions of law for water improvement districts. Therefore, voter qualification in the Red Bluff District board of directors elections is based on residency as established by Section 11.001 of the Election Code. A conflict is not created by permitting Chapter 58 irrigation districts to be a member division of the Red Bluff District.

We therefore hold that Ward District 1 and Ward District 3 are not disqualified from membership in the Red Bluff District. Issue One raised by Ward District 1 and Ward District 3 is sustained. Likewise, we sustain Issues A, B, D, and E raised by Reeves District 2. We reverse the judgment of the trial court and render a declaratory judgment that: (1) Ward District 1 and Ward District 3, despite their conversion to Chapter 58 irrigation districts, are organized districts within and member divisions of the Red Bluff District; (2) Ward District 1 and Ward District 3 are each entitled to have their elected director serve on the board of directors for the Red Bluff District; (3) Tom Nance and Ava Gerke shall be seated on the Red Bluff District to serve their terms; (4) Ward District 1 and Ward District 3 are awarded reasonable attorney’s fees in the sum of $22,075; and (5) Reeves District 2 is awarded reasonable attorney’s fees in the sum of $17,500.

      .Articles 7807d and 7807dd are considered local or special laws, and consequently, were not carried into the Water Code. See Tex. Water Code Ann. § 1.001(d)(Vernon 2000). They also have been dropped from Vernon’s Texas Civil Statutes and can only be found in the session laws. See Act of April 14, 1933, 43rd Leg., R.S., ch. 76, 1933 Tex. Gen. Laws 154 (Article 7807d), amended by Act of October 13, 1933, 43rd Leg., 1st C.S., ch. 19, 1933 Tex. Gen. Laws 54 (Article 7807dd). For convenience, we will refer to them as Articles 7807d and 7807dd.

      . Ward District 3 changed its name from Ward County Water Improvement District No. 3 to Ward County Irrigation District No. 3.Ward District 1 retained its name as Ward County Irrigation District No. 1.

      . Because Nance and Gerke were unopposed, the elections were cancelled pursuant to Section 2.053(a) of the Election Code and both candidates were certified as elected as of May 15, 2004. Tex. Election Code Ann. §§ 2.052, 2.053(a)(Vernon 2003 & Vernon Supp.2004-05).

      . In 1949, Texas and New Mexico entered into a compact dividing the water of the Pecos River between the two states. See Texas v. New Mexico, 482 U.S. 124, 126, 107 S.Ct. 2279, 2283, 96 L.Ed.2d 105 (1987). A dispute subsequently arose between the states regarding how much water Texas should receive, and in 1974, Texas filed an original action in the United States Supreme Court to resolve it. See Texas v. New Mexico, 482 U.S. at 126-27, 107 S.Ct. at 2282-83. After years of litigation, the Supreme Court ordered New Mexico to pay Texas $13.8 million as money damages for breach of the compact, and this amount was credited to the Pecos River Compact account. See Acts of 1991, 72nd Leg., 1st C.S., ch. 4, § 10.01, 1991 Tex Gen. Laws 111. The principal amount and a portion of the accrued interest was distributed to the Red Bluff District for distribution to its seven member districts. Id.

      . Acts 1918, 35th Leg., 4th C.S., ch. 25, 1918 Tex. Gen. Laws 40.

      . Acts 1918, 35th Leg., 4th C.S., ch. 44, 1918 Tex. Gen. Laws 97. The Laney Act related solely to the creation of levee improvement districts.

      . In this same session, the Legislature amended the law pertaining to water improvement districts, but the changes are not pertinent to this case. Acts 1925, 39th Leg., R.S., ch. 152, 1925 Tex. Gen. Laws 361.

      . These provisions are now found in Sections 51.040-51.044 of the Water Code.

      .Despite its name, Ward County Irrigation District No. 1 functioned as a water improvement district from 1917 until 2001. It was created in 1913 at a time when all water districts were irrigation districts, but due to a change in law, it began functioning as a water improvement district in 1917.

      . According to the parties, the Red Bluff District is the only water power control district in Texas.

      .We agree with the trial court that the phase “irrigation districts” used in Articles 7807d and 7807dd does not refer to Chapter 58 irrigation districts.


source: Caselaw Access Project

author: DIANE DeVASTO, Justice.

license: Public Domain

text:
    Kandi M. HUBERT, Appellant, v. Tommy Dean DAVIS, Debra Davis, Robert Garner and Melba Garner, Appellees.
    No. 12-03-00428-CV.
    Court of Appeals of Texas, Tyler.
    June 30, 2005.

      David M. Berman, for apellant.
    Jeffrey C. Irion, Gun Barrel City, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

Kandi M. Hubert appeals the trial court’s order granting summary judgment in favor of Tommy Dean Davis and Debra Davis (collectively “Davis”). Hubert raises three issues on appeal. We affirm.

Background

The instant case concerns a right of passage granted to lot owners in a residential community adjacent to Cedar Creek Lake in Henderson County, Texas. Cecil Bauguss filed the document in dispute on May 23, 1967. The pertinent sections of the document are as follows:

I[,] Cecil Bauguss[,] ... do hereby impress all of the property in such subdivision with the following restriction[s], except Lot No. 9.
18. There is hereby granted unto all owners of lots in said subdivision the free use, liberty and privilege of passage in and along, over and across all of Lot No. 9 Block No. 1 of said Subdivision with free ingress and egress to said owners with boats, boat trailers and other vehicles, and travel by foot, and the right to temporarily park thereon boats, boat trailers, and other vehicles incident to the use of such property as a boat landing.
14. These restrictions and covenants are hereby declared to be covenants running with the land and shall be fully binding upon all persons acquiring property in said subdivision whether by descent, devise, purchase or otherwise, and any person by the acceptance of title to any lot of this subdivision shall thereby agree and covenant to abide by and fully perform the foregoing restrictions and covenants. These covenants are to run with the land and shall be binding for a period of 25 years from the date hereof; at the end of such period, said restrictions and covenants shall automatically be extended for a successive period of 10 years unless by a vote of three-fourths majority of the then owners of the lots in said subdivision (each lot having one vote), taken prior to the expiration of said 25-year period and filed of record in said County, it is agreed to amend or release the same.

On January 28, 2003, Hubert purchased Lot 9 from Robert and Melba Garner. One of Hubert’s predecessors in interest erected a fence to prevent others from entering onto Lot 9. Davis and others breached the fence and entered upon Lot 9. Neither Hubert nor the Garners gave consent to Davis or others to use Lot 9 for any purpose. Davis continues to use the boat ramp on Lot 9.

Hubert brought the instant suit seeking a declaratory judgment that Hubert is the sole and exclusive owner of Lot 9, unencumbered by the expired restrictions. Davis counterclaimed seeking a declaratory judgment recognizing an easement burdening Lot 9. On May 21, 2003, Davis filed a motion for summary judgment, to which Hubert responded. Hubert further filed a cross-motion for summary judgment. On August 27, 2003, the trial court granted Davis’s motion for summary judgment and denied Hubert’s cross-motion. Specifically, the court found that Lot 9 is burdened with the easement created by paragraph 13 of the restrictive covenants and that the easement is not subject to expiration through the same time limits set for the restrictions. This appeal followed.

Standard of Review

In his first issue, Hubert argues that the trial court erred in granting summary judgment in Davis’s favor because the restrictions do not grant or create a permanent easement. In reviewing a traditional motion for summary judgment, we must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See id.; May v. Nacogdoches Mem’l Hosp., 61 S.W.3d 623, 628 (Tex.App.-Tyler 2001, no pet.). For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (1952). The only question is whether or not an issue of material fact is presented. See Tex.R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Crv. P. 166a(c).

Construction of Covenants and Easements

An easement confers upon one person the right to use the land of another for a specific purpose. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 870 (Tex.App.-Austin 1988, writ denied). An easement has been further defined as a “liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil.” Richter v. Hickman, 243 S.W.2d 466, 468 (Tex.CivApp.-Galveston 1951, no writ). As such, easements consist of the following characteristics pertinent to our discussion: (1) an easement is a burden on one estate, the servient estate, for the benefit of another, the dominant estate, see Miller v. Babb, 263 S.W. 253, 254 (Tex.Comm.App.1924, judgm’t adopted); (2) an easement may be created by express grant, but must be derived from the owner of the servient estate, see Williams v. Kuykendall, 151 S.W. 629, 629 (Tex.Civ.App.-Austin 1912, no writ); (3) an easement is a nonposses-sory interest in land that is not revocable at will, see Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002); Chicago, R.I. & G. Ry. Co. v. Johnson, 156 S.W. 253, 256 (Tex.Civ.App.-Amarillo 1913, writ ref'd); and (4) an easement confers no right to participation in the profits arising from the servient estate. See Magnolia Petroleum Co. v. Caswell, 1 S.W.2d 597, 600 (Tex.Com.App.1928).

Since an easement is an interest in land, the grant of an easement should be drawn and executed with the same formalities as a deed to real estate. See Compton v. Texas Southeastern Gas Co., 315 S.W.2d 345, 349 (Tex.Civ.App.-Houston 1958, writ ref'd n.r.e.). The description of an express easement must be definite and certain upon the face of the instrument itself or in some writing referred to in the instrument, such that a surveyor can go upon the land and locate the easement from the description. See Vrabel v. Donahoe Creek Watershed Auth., 545 S.W.2d 53, 54 (Tex.Civ.App.-Austin 1976, no writ). The writing required by the statute of frauds, which identifies the servient estate of an easement, must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties. See Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983).

In spite of these formal requirements, the fact that an easement clause is vague, indefinite, or uncertain does not authorize the court to completely ignore the valuable right thereby granted if the clause is still susceptible of a reasonable construction as to its true intent and meaning. See Seastrunk v. Walker, 156 S.W.2d 996, 997 (Tex.Civ.App.-Waco 1941, writ ref'd w.o.m.); see also Jones v. Fuller, 856 S.W.2d 597, 602 (Tex.App.-Waco 1993, writ denied). Generally, any language that clearly shows an intention to grant an easement is sufficient for the purpose; no special form or particular words need be employed. See Maples v. Erck, 630 S.W.2d 488, 491 (Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.).

We review the trial court’s interpretation of restrictive covenants and easements de novo. Air Park-Dallas Zoning Committee v. Crow-Billingsley Airpark, Ltd., 109 S.W.3d 900, 909 (Tex.App.-Dallas 2003, no pet.); see also Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex.App.-Dallas 2004, no pet.). The rules of contract construction govern the interpretation of restrictive covenants and easements. Pilarcik v. Emmons, 966 S.W.2d 474, 478 (Tex.1998); Nicol, 127 S.W.3d at 394. Whether restrictive covenants or easements are ambiguous is a question of law. Id, Courts must examine the covenants and easements as a whole in light of the circumstances present when the parties entered the agreement. Id. Like a contract, covenants and easements are unambiguous as a matter of law if they can be given a definite or certain legal meaning. Id. On the other hand, if the covenants or easements are susceptible to more than one reasonable interpretation, they are ambiguous. Id.

In the case at hand, the trial court in its declaratory judgment found that Lot 9 is burdened with an easement created by paragraph 13 of the restrictive covenants and that the easement is not subject to expiration through the same time limits set for the restrictions. Our review concerns whether paragraph 13 unambiguously created an easement as a matter of law as opposed to a restriction or covenant, which, by the terms of the document, was subject to expiration. Paragraph 13 states as follows:

13. There is hereby granted unto all owners of lots in said subdivision the free use, liberty and privilege of passage in and along, over and across all of Lot No. 9 Block No. 1 of said Subdivision with free ingress and egress to said owners with boats, boat trailers and other vehicles, and travel by foot, and the right to temporarily park thereon boats, boat trailers, and other vehicles incident to the use of such property as a boat landing.

By its plain language, paragraph 13 creates by express grant a burden on a ser-vient estate, Lot 9, for the benefit of the dominant estates, all other lots in the subdivision. Paragraph 13 further grants a nonpossessory interest in Lot 9 and contains no indication that the grant is revocable at will. Moreover, paragraph 13 confers no right by which owners of the dominant estates may profit from the ser-vient estate. It is significant that paragraph 13 states that the interest is “granted” to all owners of lots in the subdivision. The word “grant” is a word of present conveyance indicating complete alienation. See Sisk v. Randon, 33 S.W.2d 1082, 1085 (Tex.Civ.App.-Galveston 1930), aff'd, 123 Tex. 326, 70 S.W.2d 689 (Tex.Com.App.1934). From the language of paragraph 13, it is reasonable to conclude that Bau-guss intended to then and there grant to all other lot owners in the subdivision the free use and right of passage in and along, over and across Lot 9 with free ingress and egress for specific purposes. See Lakeside Launches, Inc., 750 S.W.2d at 870. Therefore, we hold that the trial court reasonably interpreted the unambiguous language employed in paragraph 13 as creating an easement.

Hubert argues that paragraph 13 grants a privilege rather than a right. A privilege, according to Hubert, is a term of limitation. Although Hubert cites no authority for the proposition that the word “privilege” was intended to limit the express grant in paragraph 13, we note that a “privilege” is defined as a “peculiar right.” See Black’s Law DictionaRY 1197 (6th ed.1990) (emphasis added). Moreover, an easement is defined as a “liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil.” Richter, 243 S.W.2d at 468 (emphasis added). The term “privilege,” without more, does not limit the grant in paragraph 13.

Hubert further argues that paragraph 13 makes no use of the word “easement.” However, as we have noted previously, any language that clearly shows an intention to grant an easement is sufficient for the purpose; no special form or particular words need be employed. See Maples, 630 S.W.2d at 491. Even though paragraph 10 of the restrictive covenants agreement made specific use of the word “easement” in reserving land for use by utilities, it does not necessarily follow that identical language must be used to create another easement. Id.

Yet, while not revocable at will, easements do not necessarily run in perpetuity. A determinable easement may be created that will terminate on the happening of a particular event. See Sentell v. Williamson County, 801 S.W.2d 220, 222 (Tex.App.-Austin 1990, no writ). Thus, we must determine whether Bauguss intended that the terms set forth in paragraph 14 apply to the easement created by paragraph 13. Paragraph 14 states as follows:

14. These restrictions and covenants are hereby declared to be covenants running with the land and shall be fully binding upon all persons acquiring property in said subdivision whether by descent, devise, purchase or otherwise, and any person by the acceptance of title to any lot of this subdivision shall thereby agree and covenant to abide by and fully perform the foregoing restrictions and covenants. These covenants are to run with the land and shall be binding for a period of 25 years from the date hereof; at the end of such period, said restrictions and covenants shall automatically be extended for a successive period of 10 years unless by a vote of three-fourths majority of the then owners of the lots in said subdivision (each lot having one vote), taken prior to the expiration of said 25-year period and filed of record in said County, it is agreed to amend or release the same.

From the language used in paragraph 14, the trial court could reasonably find that the time limitations applied only to the restrictions and covenants contained in the document. We cannot conclude that paragraph 14, when read in conjunction with the remainder of the document, is ambiguous. A “restriction” is a limitation, respecting the use to which property may be put. See Black’s Law DictionaRY 1315 (6th ed.1990); see also Interstate Circuit, Inc. v. Pine Forest Country Club, 409 S.W.2d 922, 925 (Tex.Civ.App.-Houston 1967, writ ref'd n.r.e.) (a land owner may convey a portion of the land and, by appropriate covenant or agreement, may lawfully restrict the use of the part conveyed for the benefit of the remaining portion). On the other hand, a “covenant” is an agreement of one of the parties to a contract to act or forbear to act in a certain specified way. See Reinert v. Lawson, 113 S.W.2d 298, 295 (Tex.Civ.App.-Waco 1938, no writ). As set forth above, the language used in paragraph 13 can reasonably be interpreted to grant an easement in Lot 9. Therefore, it reasonably follows that since the grant in paragraph 13 is an easement and the time restrictions in paragraph 14 apply only to restrictions and covenants, the time restrictions in paragraph 14 are inapplicable to the easement granted by paragraph 13.

In summation, considering the evidence in the light most favorable to Hubert, we conclude that the document at issue is not ambiguous. Moreover, there were no issues of material fact in the summary judgment record. We hold that the trial court reasonably concluded, as a matter of law, that Lot 9 is burdened with an easement created by paragraph 13 of the restrictive covenants and that the easement is not subject to expiration through the same time limits set forth in paragraph 14. Hubert’s first issue is overruled.

Disposition

Having overruled Hubert’s first issue, we affirm, the trial court’s judgment.

      . As set forth in greater detail below, not all of the paragraphs in the document are “restrictive covenants.” Nonetheless, for ease of reference, the document will be referred to as the "restrictive covenants.”

      . As we have determined that the trial court reasonably interpreted paragraph 13 as creating an easement, we need not reach Hubert’s second and third issues, both of which are dependent on the resolution of Hubert’s first issue. Hubert’s second issue concerns the trial court’s failure to adjudicate his trespass claims. Hubert's third issue concerns the trial court’s award of attorney’s fees to Davis based on Hubert’s claim that he should have prevailed on his motion for summary judgment. We note that, in its judgment, the trial court did deny all other relief requested by every other party.


author: ANN CRAWFORD McCLURE, Justice.

text:
    Bobby DICKERSON, Appellant, v. Roelmina  DOYLE and Robert Francis Doyle, Appellees.
    No. 08-04-00010-CV.
    Court of Appeals of Texas, El Paso.
    June 30, 2005.

      Doris Sipes, El Paso, for Appellant.
    Tony R. Conde, Jr., El Paso, for Appel-lee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.

      . The record indicates two different spellings of Appellee’s first name. One spelling is “Roehlmina” Doyle and the other is "Roelmi-na” Doyle.

   OPINION

ANN CRAWFORD McCLURE, Justice.

This is a paternity case arising out of an unconventional and non-traditional household. Bob Dickerson appeals the trial court’s order sustaining a special appearance and declining jurisdiction on the basis of forum non conveniens. We affirm.

FACTUAL SUMMARY

Frank and Roelmina Doyle, married for ten years, have a thirteen-year-old adopted daughter, Michelle, and a now five-year-old son, Robert. It is Robert’s paternity which is at issue. The Doyles lived in Seoul, Korea where Frank worked for the Corps of Engineers until his retirement in September 2001. Some time during 1997 or 1998, the Doyles met Bob Dickerson, who was serving in the United States Army. Dickerson moved in with the Doyles in March 1998 when his service ended and he, too, became employed by the Corps of Engineers. Robert was born in Seoul on February 13, 2000.

When Frank retired, the family moved to Saratoga Springs, New York and built a house. Frank intended to make this the family’s final home since he had grown up in the area. Initially, Dickerson moved with the Doyles but briefly returned to Korea. In December 2001, Dickerson returned to New York and announced he had obtained a position with the Corps of Engineers in White Sands, New Mexico. When he left for White Sands, he took Roelmina and Robert with him. Frank admitted that Roelmina accompanied Dickerson to White Sands willingly. They arrived in El Paso on December 14, 2001 and stayed first at the Fort Bliss Inn. In January 2002, Roelmina, Dickerson, and Robert moved into an apartment.

Frank soon listed the New York house for sale. He and Michelle followed the others to El Paso and moved into the apartment in April. Frank then purchased a home in west El Paso and the Doyles and Dickerson moved into the residence. Frank admitted that Dickerson would sometimes sleep in the master bedroom with Roelmina. Roelmina admitted that Robert called Dickerson “papi” and Frank “daddy.”

Frank did not intend for the home to be a permanent residence and had plans to move the family to the southeastern United States. He purchased the home as an investment since he did not believe in paying rent. He grew bored with retirement and again applied with the Corps of Engineers. He was offered a one-year tour in Korea which was to be “unaccompanied,” meaning his family would stay behind. However, he hoped to have the tour extended so that Roelmina and the children could join him. Frank put the El Paso house on the market and planned for Roel-mina to live there until it sold. Roelmina would then move to southeastern Alabama. Frank left for Korea in August 2002. By this time, Dickerson had obtained employment in Hawaii, although he had not yet left Texas.

While in Korea, Frank learned from Roelmina that she and Dickerson were not getting along. She complained that Dickerson had become both physically and verbally abusive and she did not intend to accompany him to Hawaii. Dickerson arranged an appointment for paternity testing on November 5, 2002 but Roelmina talked him out it. Nevertheless, Dickerson threatened to take Robert to Hawaii. Fearing he would abscond with the child, Roelmina left El Paso with her son on November 6. When Dickerson returned to El Paso from a business trip to Phoenix, he found Roelmina and Robert gone. He called Frank in Korea asking where they were. On November 7, 2002, Dickerson filed his petition to establish the parent-child relationship. He alleged that the court had subject matter jurisdiction since all the parties had resided in El Paso County for six months prior to his filing suit. Roelmina and Robert ended up in Birmingham, Alabama; Michelle stayed temporarily with family friends in Louisiana. Roelmina was served at her apartment in Birmingham in December 2002. Frank returned to the States right after Christmas and was served at the airport in Birmingham.

Dickerson moved to Hawaii in January 2003 to begin his job. Claiming that he was merely on temporary assignment to Hawaii and would return to El Paso at the end of his project, Dickerson considered his residence to be El Paso, Texas where he was registered to vote and maintained a Texas driver’s license.

APPLICABLE STATUTORY FRAMEWORK

There is no dispute that Texas was the child’s home state at the time this parentage action was filed. Frank admitted that Robert had lived in El Paso for approximately eleven months. Consequently, we are not presented with an issue of subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. Rather, we must address jurisdiction under the Uniform Parentage Act. The Texas Family Code mandates that an individual may not be adjudicated to be a parent unless the court has personal jurisdiction over him. Tex. Fam.Code Ann. § 160.604(a) (Vernon 2002 & Vernon Supp.2004-05). Dickerson submitted himself to the jurisdiction of the court by filing his parentage suit. Subsection (b) provides that a court having jurisdiction to adjudicate parentage may exercise personal jurisdiction over a non-resident if the conditions in Section 159.201 are satisfied. Section 159.201, a long-arm statute, allows the court to determine parentage and exercise personal jurisdiction over non-residents if they have resided with the child in this state. In any event, even if a Texas court has both subject matter jurisdiction and personal jurisdiction, it may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and that a court of another state is a more appropriate forum. Tex. Fam.Code Ann. § 152.207(a). Finally, we note that Frank is presumed to be Robert’s father. Tex. Fam.Code Ann. § 160.204(a)(1) (a man is presumed to be the father of a child if he is married to the mother and the child is born during the marriage). Because Robert is a child with a presumed father, a statute of limitations applies. Tex. Fam.Code Ann. § 160.607 (a suit to adjudicate parentage of a child having a presumed father shall be brought before the child’s fourth birthday; however a proceeding to disprove the presumed father/child relationship may be brought at any time if the court determines that the presumed father and the mother did not live together or engage in sexual intercourse with one another during the probable time of conception and the presumed father never represented to others that the child was his own).

PROCEDURAL POSTURE

The Doyles filed a special appearance and asked that Dickerson’s petition be dismissed. In his response, Dickerson argued that the court had long-arm jurisdiction over the non-residents since the parties had resided in El Paso with the child. Subject to their special appearance, the Doyles filed a motion to dismiss, asking the court to decline jurisdiction on the basis of forum non conveniens.

The special appearance hearing was conducted on April 1, 2003. At that time, there was pending in Alabama a motion for a temporary restraining order seeking to enjoin Dickerson from harassment. Following the hearing, the trial court granted the special appearance, finding that the Doyles were residents of Alabama, that Dickerson was a resident of Hawaii, that Texas was not a convenient forum, and that Alabama was a more appropriate forum. Orally, the court pronounced:

I’m going to abate the proceedings until such time as the proper motion is filed in Alabama and the Alabama court accepts jurisdiction. If the Alabama court does not accept jurisdiction, then I’ll retain jurisdiction. I’m going to give the parties 45 days to find out whether or not Alabama is going to accept jurisdiction.

The written order, however, specified:

IT IS THEREFORE ORDERED, that the Special Appearance ... is hereby granted, that as the Special Appearance is granted and as this court is not a convenient forum for the litigation [of] the subject matter of this cause and as the State of Alabama is a more appropriate forum, IT IS FURTHER ORDERED that further proceedings in this cause in this state are stayed and IT IS ORDERED that within 45 days from the date of the hearing this case be transferred to a proceeding in the State of Alabama and thereafter this cause is dismissed and that these orders are in the best interest of the minor child the subject of this suit. [Emphasis added].

Dickerson objected to the order because it purportedly granted the motion for forum non conveniens without the benefit of a hearing and without permitting Dickerson to respond. The trial court ultimately dismissed the Texas suit since no proceedings were brought in Alabama within the 45-day period. From this order, Dickerson appeals. In three issues for review, Dickerson complains that the court erred by (1) sustaining the special appearance; (2) dismissing the parentage suit rather than continuing the stay until the action could be transferred to Alabama; and (3) condoning the Doyles’ removal of the child from Texas and compelling Dickerson’s acquiescence to Alabama’s jurisdiction. For purposes of our analysis, we will consider these issues out of order and begin with Issue Two. .

FORUM NON CONVENIENS

Dickerson raises a two-part issue complaining of the trial court’s decision to decline jurisdiction based upon the doctrine of forum non conveniens. He first complains that he was deprived of a hearing on the Doyles’ motion. Secondly, he argues that the court erred by dismissing the suit after the 45-day stay rather than extending the stay until the cause was “transferred.” We review the trial court’s ruling for an abuse of discretion. Coots v. Leonard) 959 S.W.2d 299, 301 (Tex.App.-El Paso 1997, no writ).

Lack of Hearing?

Dickerson acknowledges that the Family Code allows a court with subject matter jurisdiction to decline to exercise that jurisdiction if it determines that Texas is an inconvenient forum and that another state is a more convenient forum. Tex. Fam. Code Ann. § 152.207. The statute permits the court to make this determination “at any time” and the issue “may be raised upon motion of a party, the court’s own motion, or request of another court.” Tex. Fam.Code Ann. § 152.207(a). Subsection (b) enumerates eight factors which a court shall consider and specifies that the court shall allow the parties to submit relevant information. Tex. Fam.Code Ann. § 152.207(b).

The hearing below was scheduled for the purpose of considering the Doyles’ special appearance. They did not seek a hearing on their motion for forum, non conveniens due to a concern that in doing so, they might waive their special appearance. They asked Dickerson to agree to a hearing on the forum issue immediately following the hearing on the special appearance. Frank had come from Korea to attend the hearing and Roelmina had traveled from Alabama. Dickerson specifically declined their request. Nevertheless, the evidence presented in conjunction with the special appearance encompassed all eight of the factors which the trial court needed to consider.

• Roelmina testified to verbal and physical abuse, as well as her fear of Dickerson. She had filed suit in Alabama seeking a temporary restraining order to prevent further harassment by Dickerson. Her Alabama attorney accompanied her to El Paso for the hearing.
• Robert had lived in Alabama for nearly five months and was going to school there.
• There is a considerable distance between El Paso and Birmingham, but no one lived in El Paso any longer.
• Frank was employed by the Corps of Engineers and currently working in Korea. He planned to return to Alabama when his contract of employment expired in August 2003. Dickerson was employed by the Corps and working in Hawaii at the time of the special appearance. By the time of the dismissal hearing, he was in Iraq. Travel expenses were likely to be considerable regardless of whether Texas or Alabama exercised jurisdiction.
•The parties had not agreed as to which state should assume jurisdiction.
• The paternity testing could be conducted in either Texas or Alabama. In addition to establishing paternity, however, Dickerson sought appointment as the child’s sole managing conservator. Evidence pertaining to conservatorship was more likely available in Alabama, where the child lived.
• The trial court specifically asked the Alabama attorney whether the State of Alabama would have jurisdiction and the attorney responded that he believed it would.

In the trial court, Dickerson complained that the Doyles were required to set a hearing on their motion prior to the court’s ruling. This argument does not take into consideration the language of the statute allowing the court to decline jurisdiction on its own motion, provided that the court allows the parties to submit information. Dickerson has made no showing that he was not allowed to submit relevant information, nor has he articulated what additional information he would have elicited had he been afforded an opportunity.

No Inter-State Transfer

Perhaps having recognized this flaw, Dickerson argues on appeal that the court erred by dismissing the suit after the 45-day stay rather than extending the stay until the cause was “transferred.” “Transfer” is a misnomer. The statute requires that if the court determines Texas to be an inconvenient forum, “the court shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.... ” Tex.Fam.Code Ann. § 152.207(c).

The Family Code contemplates only intrastate transfers. It provides no mechanism for an mfer-state transfer. Coots, 959 S.W.2d at 307. Inasmuch as the trial court had no authority to transfer the parentage suit, it did not err by failing to do so. Dickerson had a 45-day window within which to bring suit in Alabama. The suit was not dismissed until six months had elapsed. Finding no error, we overrule Issue Two.

UNCLEAN HANDS

In Issue Three, Dickerson complains that the trial court failed to abide by the mandate of Section 152.208, which requires a trial court to decline jurisdiction due to a party’s unjustifiable conduct, such as abduction or concealment. He argues that this provision is applicable because Roelmina wrongfully fled the State of Texas and concealed her whereabouts in Alabama. We disagree with his interpretation of the statute. Jurisdiction is not to be declined based upon a party’s unjustifiable conduct. A court shall decline jurisdiction “because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct....” Tex. Fam. Code Ann. § 152.208(a). Dickerson is the party seeking to invoke the jurisdiction of Texas courts. Whether Roelmina has attempted to invoke jurisdiction in Alabama by virtue of unjustifiable conduct is a question for the Alabama court to consider. At that point, the court would necessarily address Roelmina’s claims of family violence, as the Commissioners’ Comment duly notes:

The focus in this section is on the unjustified conduct of the person who invokes the jurisdiction of the court. A technical illegality or wrong is insufficient to trigger the applicability of this section. This is particularly important in cases involving domestic violence and child abuse.... An inquiry must be made into whether the flight was justified under the circumstances of the case.

Sampson & Tindall, Texas Family Code Annotated § 152.208, Commissioners’ Comment p. 536 (2008). Issue Three is overruled.

SPECIAL APPEARANCE

In Issue One, Dickerson complains that the trial court erred in sustaining the Doyles’ special appearance. He argues that Texas has long-arm jurisdiction since the Doyles resided in Texas with Robert.

Standard of Review

The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). Due process requires that the defendant be given adequate notice of the suit and be subject to the personal jurisdiction of the court. Id. The Due Process Clause, by ensuring the orderly administration of the laws, “gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” Id. at 297, 444 U.S. 286, 100 S.Ct. at 567, 62 L.Ed.2d 490.

Whether a court has personal jurisdiction over a defendant is a question of law. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 805-06 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002). But in resolving this question of law, a trial court must frequently resolve questions of fact. Coleman, 83 S.W.3d at 806; BMC, 83 S.W.3d at 794. On appeal, the trial court’s determination to grant or deny a special appearance is subject to de novo review, but appellate courts may be called upon to review the trial court’s resolution of a factual dispute. Coleman, 83 S.W.3d at 806; BMC, 83 S.W.3d at 794. When the trial court does not issue findings of fact, reviewing courts should presume that the trial court resolved all factual disputes in favor of its judgment. Coleman, 83 S.W.3d at 806; BMC, 83 S.W.3d at 795. However, when the appellate record includes the reporter’s and clerk’s records, these implied findings are not conclusive and may be challenged on appeal for legal and factual sufficiency. BMC, 83 S.W.3d at 795.

Personal Jurisdiction Under the Parentage Act

A court may exercise personal jurisdiction over a nonresident if the conditions in Section 159.201 are satisfied. Tex. Fam.Code Ann. § 160.604(b). Section 159.201 provides that in a proceeding to determine parentage, a tribunal may exercise personal jurisdiction over a non-resident if the individual has resided with this child in Texas. TexFam.Code Ann. § 159.201(3)(Vernon Supp.2004-05). The court below may have concluded that it could properly exercise personal jurisdiction over the Doyles. However, it declined to do so because no one lived in Texas and Alabama was a more appropriate forum. We have found no error in this ruling. Consequently, whether the court could have exercised jurisdiction is moot. It chose not to, as the statute clearly allows. Issue One is overruled and the judgment of the trial court is affirmed.

      . Michelle is identified in the record both as Roelmina's adopted niece and as her adopted sister.

      . Having worked in Saudi Arabia for six years, Frank had had enough of desert life.

      . Texas has jurisdiction to make an initial child custody determination if Texas is the home state of the child on the date of the commencement of the proceeding. Tex Fam. Code Ann. § 152.201(a)(1). "Home state” means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Tex Fam.Code Ann. § 152.102(7). A "child custody proceeding" includes a paternity action. Tex. Fam.Code Ann. § 152.102(4). Texas may exercise subject matter jurisdiction in a paternity action when the mother and child leave the state the day before suit is filed. In re Calderon-Garza, 81 S.W.3d 899, 902-03 (Tex.App.-El Paso 2002, orig. proceeding).

      . The statute of limitations under the uniform act is two years.

      . Bob had apparently shown up at the Doyles' Alabama home dressed in disguise. As a re-sujt, the Doyles’ feared he intended to abscond with Robert.

      . The statute requires the court to consider (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside of Texas; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation.

      . No litigant tendered evidence of Alabama law, whether it has adopted the Uniform Parentage Act, and if it has, whether its statutory provisions track the uniform act precisely or expand limitations as Texas has done. In the absence of such evidence, we must presume that the law of Alabama is identical to Texas law. See Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex.1963); J. Parra e Hijos, S.A. de C.V. v. Barroso, 960 S.W.2d 161, 167 (Tex.App.Corpus Christi 1997, no writ)("In the absence of proper invocation of foreign law, Texas courts must presume the foreign law to be the same as that of Texas,” citing Country Cupboard, Inc. v. Texstar Corp., 570 S.W.2d 70, 72 (Tex.Civ.App.-Dallas 1978, writ ref'd n.r.e.) and Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458 (Tex.1969)). See also Olin Guy Wellborn III, Judicial Notice under Article II of the Texas Rules of Evidence, 19 St. Mary's LJ. 1, 28 (1987).

      . This statute is commonly referred to as the “clean hands” provision.


author: BRIAN QUINN, Chief Justice.

text:
    Jimmy Lee FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 07-02-0224-CR.
    Court of Appeals of Texas, Amarillo.
    July 6, 2005.
    Opinion Overruling Rehearing Sept. 6, 2005.
    Paul E. Mansur, Denver City, TX, for Appellant.
    Richard Clark, Criminal District Attorney, Plains, TX, for Appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   OPINION

BRIAN QUINN, Chief Justice.

On November 24, 2003, we issued our opinion overruling Jimmy Lee Flores’ four issues and affirming the trial court’s judgment. Appellant petitioned the Texas Court of Criminal Appeals for discretionary review. On September 15, 2004, that court vacated our judgment and remanded the cause for reconsideration in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). At the time that we rendered our initial opinion, Crawford had yet to be issued. Having reviewed Crawford and the record before us, we again affirm the judgment of the trial court.

The cause before us involves the conviction of Jimmy Lee Flores (appellant) for injury to a child by omission. During his trial, the State called his sister as a witness and asked her whether Shasta (the mother of Jimmy’s child) had told her how the child was injured on a particular occasion. Appellant objected, contending that the answer was hearsay. So too did he assert that its admission would violate his right to confrontation since he could not question Shasta about the statement given her invocation of the spousal privilege. The trial court overruled the objections and allowed the witness to testify. In doing so, the witness stated that Shasta said the child suffered bruising to its face when appellant attempted to hit her (Shasta) and she (Shasta) used the child to deflect the blow. Furthermore, the witness stated that Shasta “said that night that the baby died that the baby woke up and Jimmy was going to hit Shasta, and she put the baby in the way, and that’s how he got his black eye.”

Given the status of the law at the time, we concluded that the trial court’s decision did not run afoul of appellant’s right to confront his accusers. Yet, as previously mentioned, since then the United States Supreme Court issued its opinion in Crawford. There, it changed the test previously utilized in assessing whether one was denied his right to confrontation. Gone is the test of reliability. In its place is a test based upon whether the statement is “testimonial” or “non-testimonial.” Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203; Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App.2004). If testimonial, then admission of the hearsay statement violates a defendant’s right to confrontation unless the defendant has the opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203. And, aside from proffering various examples of what constitutes testimonial statements, the Supreme Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id.

Yet, Texas courts which have addressed Crawford have helped to fill in the void. For instance, casual remarks spontaneously made to acquaintances were deemed non-testimonial by the Court of Criminal Appeals in Woods. Woods v. State, 152 S.W.3d at 113-14. Also, in Tyler v. State, 14-04-00544-CR, 2005 WL 1430463, 2005 Tex.App. Lexis 4742 (Tex.App.-Houston [14th Dist.] June 21, 2005, no pet.) (involving a statement made to a policeman), the court opined that testimonial statements involve a declarant’s knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant could reasonably expect that his responses could be used in future judicial proceedings. Id.; see Mancilla v. State, No. 05-03-01637-CR, 2005 WL 1022451, 2005 Tex.App. Lexis 3334 (Tex.App.-Dallas May 3, 2005, no pet.) (holding that the comment was non-testimonial because it was not made under circumstances that would lead an objective witness to believe that the utterance would be used in a future judicial proceeding). The Tyler court also noted that the answer turned not on the content of the statement but the procedure used to obtain it. Id.

Additionally, in Ruth v. State, No. 14-03-01158-CR, 2005 WL 1431324, 2005 Tex.App. Lexis 4729 (Tex.App.-Houston [14th Dist.] June 21, 2005, no pet.) (involving comments made during a 911 call), the court made several informative observations about the nature of testimonial statements. It viewed them as formal and official in nature, non-spontaneous, uninitiated by the declarant, and something other than replies to preliminary questions asked by an officer at the scene of a crime. Id.; accord, Spencer v. State, 162 S.W.3d 877, 2005 Tex.App. Lexis 3162 (Tex.App.Houston [14th Dist.] April 28, 2005, no pet.). Additionally, much depended upon the circumstances of each case, and because the circumstances in Ruth did not suggest that the call was anything other than a typical 911 call wherein the caller summons the police, the comments were deemed non-testimonial. Ruth v. State, supra.

Common among each of these cases is the notion that the circumstances surrounding the utterance are pivotal in assessing whether or not it is testimonial. Such indicia as 1) to whom it was made, 2) was it volunteered or solicited, 3) was it uttered during casual conversation, a formal legal proceeding or an investigation, and 4) when it was made are worthy of consideration. And, upon our consideration of them in light of the record at bar, we cannot but hold the comments to be non-testimonial. This is so because they were made to an acquaintance or prospective relative (Shasta’s future sister-in-law) within hours after the infant died. That they were so made after the death permits one to infer that they were not part of some grand jury investigation, deposition or legal or judicial proceeding. Moreover, nothing of record indicates that the witness was working for the police or the prosecutor, sought to obtain information on behalf of the police or State, or sought to obtain information to use against Shasta or her brother at some later judicial proceeding.

Simply put, the relationship between the declarant and the witness, the time of the utterance, and the lack of any indicia suggesting that Shasta could have reasonably inferred that the statement would be used in a legal proceeding involving appellant compel us to reject the notion that appellant was denied his right of confrontation. Thus, Crawford does not require us to arrive at an outcome different from the one we initially reached.

The judgment of the trial court is affirmed.

Opinion on Motion for Rehearing

Pending before the court is the motion of Jimmy Lee Flores, appellant, for rehearing. Though several matters are raised, we address only one. It involves the statement in our opinion wherein we said that the indicia of reliability is no longer pertinent in determining whether the admission of a comment violates the Confrontation Clause of the Sixth Amendment to our United States Constitution. Appellant contends that we are wrong, and the State agrees with him. We disagree, however, and overrule the motion for rehearing.

As stated in Crawford, when reviewing a confrontation clause challenge, it must be determined whether the statements are testimonial. If they are, then they can be admitted into evidence only “where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004). The Supreme Court shunned the idea of leaving “the Sixth Amendment’s protection to the vagaries of the rules of evidence,, much less to amorphous notions of ‘reliability.’ “ 541 U.S. at 60, 124 S.Ct. at 1370, 158 L.Ed.2d at 177.

Moreover, in those situations wherein the statement is found to be nontestimonial, the following passage from Crawford is quite instructive.

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.

541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 177 (emphasis added).

Therefore, we are quite correct in stating that “gone is the test of reliability” when the court is faced with a confrontation clause argument. “Where testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination.” Id. However, when the evidence is nontestimonial, then we are to “afford the States flexibility in their development of hearsay law” and “exempt[ ] such statements from Confrontation Clause scrutiny....” Id. (emphasis added). So, once it is determined that the comment is nontestimonial, then the confrontation clause inquiry ends.

In the ease before us, we found the statement to be nontestimonial. That ended further analysis of appellant’s confrontation clause argument per the directives of. Crawford. We, therefore, overrule the motion for rehearing.

      . Though Shasta and appellant were not married at the time of the incident, they married prior to trial.

      . Appellant suggests that nothing in the record indicates when the utterance was made by Shasta. We disagree with this, however. Again, the witness began her response to the prosecutor’s question with the phrase "[Shasta] said that night that the baby died....” The quoted passage can reasonably be interpreted as disclosing that Shasta made the comment during the night that immediately followed the death of the infant. Since the infant died on the morning of October 28th, it, therefore, could be inferred that the statement was made during the night of October 28th.

      .The examples given were 1) prior testimony at a preliminary hearing, before a grand jury, or at a former trial and 2) police interrogations. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177, 203 (2004). According to the Court, these were the modern proceedings with the closest link to the abuses against which the Confrontation Clause was directed. Id.

      . In so concluding, that court cited two cases which apparently held that 1) comments made to loved ones or acquaintances were not the kind of memorialized, judicial-process evidence of which Crawford spoke, United States v. Manfre, 368 F.3d 832 (8th Cir.2004), and statements to a neighbor that the declár-ant did not reasonably anticipate would be used at trial were non-testimonial in nature, People v. Cervantes, 118 Cal.App.4th 162, 12 Cal.Rptr.3d 774 (App.2d Dist.2004). Woods v. State, 152 S.W.3d 105, 114 n. 34 (Tex.Crim.App.2004).

      . See e.g., Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir.2004) cert. denied, — U.S. —, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005); State v. Anderson, No. E2004- 00694-CCA-R3CD, 2005 WL 171441, *3 (Tenn.Crim.App. Jan.27, 2005); Anderson v. State, 111 P.3d 350 (Alaska App.2005); U.S. v. Felton, No. 02-2414, 2005 WL 1792458, *9 (1st Cir.(Mass.) July 29, 2005); Womack v. State, 273 Ga.App. 300, 614 S.E.2d 909, 914 (Ga.App. May 18, 2005); Rivera v. State, No. 04-03-00830-CR, 2004 WL 3015165, *1 (Tex.App.-San Antonio Dec.30, 2004, no pet.) (holding that Crawford did not apply because appellant had failed to make a confrontation complaint); Marsh v. State, 818 N.E.2d 143, 146 (Ind.App. Nov.24, 2004) (interpreting Crawford to apply only to testimonial statements); State v. Nix, No. C-030696, 2004 WL 2315035, *17 (Ohio App. 1 Dist. Oct.15, 2004); Waltmon v. State, No. 08-03-00317-CR, 2004 WL 1801793, *6 (Tex.App.-El Paso Aug.12, 2004, pet. ref'd); Bunton v. State, 136 S.W.3d 355, 368 (Tex.App.-Austin 2004, pet. ref'd); State v. Smith, No.2004-KK-3140, 2005 WL 1507773, *1 (La. June 24, 2005);
        Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App.2004); Crawford v. State, 139 S.W.3d 462, 463 (Tex.App.-Dallas 2004, pet. ref’d); Rogers v. State, No. 02-04-212-CR, 2005 WL 1593933, *3 (Tex.App.-Fort Worth July 7, 2005, no pet. h.); Tyler v. State, No. 14-04-0544-CR, 2005 WL 1430463, *2 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Davis v. State, No. 03-04-00014-CR, 2005 WL 1173964, *1 (Tex.App.-Austin 2005, no pet. h.); Spencerv. State, 162 S.W.3d 877; 878 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.); Eslora v. State, No. 04-04-0012-CR, 2005 WL 763233, *4 (Tex.App.-San Antonio 2005, pet. filed); Moreno Denoso v. State, 156 S.W.3d 166, 181(Tex.App.-Corpus Christi 2005, pet. filed); Davis v. State, No. 02-03-305-CR, 2005 WL 183141, *2 (Tex.App.-Fort Worth 2005, pet. filed); Wilson v. State, 151 S.W.3d 694, 697 (Tex.App.-Fort Worth 2004, pet. ref'd).

      . We advise those filing motions for rehearing that the line between being informative and being insolent may be close but should not be crossed. Motions for rehearing are read, and those which cross the line will not be met with favor.


author: TOM GRAY, Chief Justice.

text:
    Terry Don WOODWARD, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00386-CR.
    Court of Appeals of Texas, Waco.
    July 6, 2005.
    Rehearing Overruled Sept. 6, 2005.

      Stan Schwieger, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

TOM GRAY, Chief Justice.

Terry Don Woodward, Jr. was convicted of murder and of aggravated assault with a deadly weapon and sentenced to life in prison. Because the trial court properly refused Woodward’s request for a lesser-included offense instruction, properly admitted evidence of Woodward’s ‘White Pride” tattoo during punishment, and properly allowed expert testimony regarding the distance from which one of the victims was shot, we affirm.

LesseR Included Offense

Woodward first contends that the trial court erred in refusing to instruct the jury on the lesser-included offense of criminally negligent homicide. Woodward was charged with the murder of Roderick Brownlow, Jr. The court also gave the jury an instruction on manslaughter. Woodward, however, wanted an instruction on criminally negligent homicide, as well.

Woodward and the State agree that criminally negligent homicide is a lesser included offense of murder. See Thomas v. State, 699 S.W.2d 845, 847 (Tex.Crim.App.1985). Thus the issue left for us to decide is whether there is some evidence in the record that would permit a jury to rationally find that if a defendant is guilty, he is guilty only of the lesser offense. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993).

Woodward contends he is entitled to the instruction because he testified that all he intended to do was to “scare them off,” not to kill anyone. The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct. Still v. State, 709 S.W.2d 658, 660 (Tex.Crim.App.1986); Wong v. State, 745 S.W.2d 563, 565 (Tex.App.-Waeo 1988, no pet.). Simply because Woodward did not intend the result does not automatically entitle him to a charge on criminal negligence. See Wong, 745 S.W.2d at 565. There is no evidence in the record to show that Woodward failed to perceive the risk of shooting the gun. Thus, the trial court did not err in failing to give an instruction on criminally negligent homicide. Woodward’s first issue is overruled.

Tattoo

Woodward next contends that the trial court erred in allowing testimony regarding his “White Pride” tattoo during punishment because 1) the State failed to provide notice of its intent to introduce evidence of the tattoo pursuant to article 37.07, § 3(g) of the Code of Criminal Procedure, 2) evidence of the tattoo was irrelevant, and 3) evidence of the tattoo was inadmissible pursuant to Rule 403.

Woodward admits that the State’s duty to provide notice of its intent to introduce evidence of the tattoo is triggered by a request from the defendant to the State and that, rather than a request to the State, he filed a motion with the trial court to secure the State’s compliance. The trial court did not rule on the motion. When a document seeks trial court action, it cannot also serve as a request for notice triggering the State’s duty under Article 37.07, § 3(g) — to hold otherwise would encourage gamesmanship. Mitchell v. State, 982 S.W.2d 425, 427 (Tex.Crim.App.1998).

But Woodward argues 1) that because the State provided notice of some extraneous offenses or bad acts without a proper request, it was obligated to provide reasonable notice as to all bad acts it would use, and 2) that the State should have objected to Woodward’s failure to have a hearing on his motion for notice. Woodward bases this argument on the principles of error preservation and judicial estoppel. His argument is not persuasive. The Code clearly places the burden of triggering the State’s duty to provide notice on the defendant. “The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.” Tex.Code CRIM. PROC. Ann. art. 37.07, § 3(g) (Vernon Pamp.2004-05) (emphasis added). A motion to the trial court does not satisfy this burden. Mitchell, 982 S.W.2d at 427. We refuse to “encourage gamesmanship” and shift the burden to the State to make sure the defendant either provides notice to the State or sets his motion for a hearing, or to penalize the State for giving some notice when it was not required to give any notice.

Woodward also contends that the evidence of the tattoo is irrelevant and, even if relevant, its probative value is substantially outweighed by the danger of unfair prejudice. At the punishment phase of a criminal trial, evidence may be presented as to any matter that the court deems relevant to sentencing, including evidence of the defendant’s background or character. See Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Pamp.2004-05). Determining what is relevant is a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999). A defendant’s choice of tattoos, like his personal drawings, can reflect his character and/or demonstrate a motive for his crime. Conner v. State, 67 S.W.3d 192, 201 (Tex.Crim.App.2001).

Woodward does not specifically set out why the tattoo is irrelevant. It appears that, by relying on a United States Supreme Court decision, he contends the tattoo reflects only his “abstract beliefs” and evidence thereof is inadmissible. However, in Dawson, the Supreme Court reiterated that the Constitution does not erect a per se barrier to the admission of evidence concerning a defendant’s beliefs or associations at sentencing because those beliefs or associations are protected by the First Amendment. Dawson, 503 U.S. at 165, 112 S.Ct. 1093. The problem in Dawson was that the stipulation about the Aryan Brotherhood was so narrow, it was no longer relevant. There was nothing to link the group to the crime. That is not the case here. Woodward is white and the victim was black. At least one witness testified that Woodward yelled, “I will kill you niggers!” as he shot toward his victim and others. Woodward, on the other hand, testified that he shot in the air and had no intent to kill anyone. Thus, Woodward’s tattoo, ‘White Pride,” was relevant to his character and thus relevant to his punishment.

Next, we must decide whether the probative value of the tattoo evidence was “substantially outweighed by the danger of unfair prejudice.” See Tex.R. Evid. 403. Unfair prejudice does not, of course, mean that the evidence injures the opponent’s case; rather it refers to an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Rogers v. State, 991 S.W.2d 263, 266 (Tex.Crim.App.1999). When the record demonstrates one or more relevant criteria reasonably creating a risk that the probative value of the tendered evidence is substantially outweighed by the danger of unfair prejudice, then we should conclude that the trial court abused its discretion in admitting the evidence. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App.2000); Graff v. State, 65 S.W.3d 730, 740 (Tex.App.-Waco 2001, pet. ref'd).

Woodward contested the issue that the shootings were racially motivated. He called two witnesses who stated Woodward was not a racist. The State did not have other convincing evidence that the shootings were racially motivated. Only one out of five witnesses testified that Woodward said anything racial prior to the shootings. The probative value of the tattoo was compelling in that Woodward claimed he had no intent to kill anyone and was acting under the immediate influence of sudden passion. Woodward did not ask for a limiting instruction regarding the jury’s consideration of his tattoo. A general limiting instruction regarding any extraneous offenses was included within the charge to the jury, but no specific instruction as to the tattoo was included. However, based on the record before us, we cannot say that a limiting instruction would not have been effective.

Having none of the relevant criteria present, the trial court did not abuse its discretion in allowing testimony of the tattoo over Woodward’s Rule 403 objection.

Woodward’s second issue is overruled.

Expert Testimony

In his last issue, Woodward contends that the trial court erred in admitting evidence of the results of a gunshot/distance test. Specifically, he argues that the state failed to demonstrate that evidence of gunshot residue analysis distance determination is. reliable because the discipline is not a valid scientific theory. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992).

The State had the burden of proving the reliability of the evidence by clear and convincing evidence. Id. This Court now decides whether the trial court abused its discretion in admitting the evidence. Id. at 574.

Kelly lays out a “common sense” test based upon an analysis of three criteria to determine if expert testimony is reliable. Holmes v. State, 135 S.W.3d 178, 180 (Tex.App.-Waco 2004, no pet.). The case then discusses seven factors that could affect a trial court’s reliability determination. Although there is no precise correlation between the factors and criteria, factors 1, 3, and 6 generally correlate with the criteria challenged by Woodward-that gunshot residue analysis distance determination is not a valid scientific theory. See id. at 181.

David Spence, the supervisor of the Trace Evidence section at the Southwestern Institute of Forensic Science in Dallas, testified at a hearing outside the presence of the jury.

Accepted by the scientific community

Spence testified that two chemical tests are performed for the gunshot residue analysis distance determination. One is a sodium test for specific lead residue. The other is the modified Grice test where clothing is examined for nitrite residue that results from the burning, partial burning, or degradation of gunpowder. Spence testified that these two tests identify residues that originate from gunshot residue, namely lead and nitrite residue, which are then applied to a distance determination. Patterns of the residue are developed and an examination of the clothing, microscopically and with the naked eye, is performed to look for visible gunpowder particles.

Spence further testified that test shots, using the crime weapon and ammunition or the same type of ammunition, are fired at cotton test targets. The same chemical tests and microscopic exams are performed. A comparison of the test shot patterns and the actual crime scene patterns is made. Based on the comparison, Spence stated, the distance of the actual gunshot can be determined.

Spence affirmed that the discipline of gunshot residue analysis distance determination is recognized in both the scientific and law enforcement communities. The Texas Department of Public Safety and the FBI use these same tests and techniques. He also testified that the discipline is performed nationwide and by other countries, as well.

Existence of Literature

Spence testified that he had read “many, many different published books and literature” on gunshot residue distance determination. One such book was Gunshot Wounds by Dr. Vincent J. DeMayo. Spence described the book as an authoritative textbook on the examination of bullet wounds and gunshot residue analysis. He had also read the majority of articles on gunshot residue distance determination published in the Journal of Forensic Sciences. Spence brought with him three articles on the subject published in the “AFTE” Journal.

Clear Explanation

Spence clearly explained the process and analysis in making a determination of how far away a gunshot was fired based on residue tests and comparison tests. Woodward admits on appeal that the testing described was “straightforward and intelligible.”

Spence presented much more information regarding his qualifications, the validity of the techniques used in gunshot residue analysis distance determination and his application of those techniques. However, Woodward does not contend on appeal that the State failed to prove those criteria.

In reviewing this record, the State demonstrated by clear and convincing evidence that the underlying scientific theory of the gunshot residue analysis distance determination was valid. Thus, the trial court did not abuse its discretion in admitting the testimony.

Woodward’s third issue is overruled.

Conclusion

Having overruled each issue for review, the trial court’s judgment is affirmed.

Justice VANCE dissenting with note.

      . Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992).

      . At trial, Woodward also objected that the technique was not properly applied because there was no testing of the weapon or the ammunition. He does not argue this basis on appeal.

       "(Justice Vance dissents with a note: This opinion does not adequately address the issue regarding a lesser included offense. Woodward cites Esparza v. State, 520 S.W.2d 891 (Tex.Crim.App.1975). The State cites Schroeder v. State, 123 S.W.3d 398 (Tex.Crim.App.2003). This opinion cites neither. Woodward testified that his intent was to "scare them off” and that, being more than a scintilla of evidence, was sufficient to entitle him to the lesser charge. Bignall v. State, 887 S.W.2d 21 (Tex.Crim.App.1994) (The policy of the Court is to liberally permit the instruction when warranted.))”