author: Justice ROSS.

text:
    James Chynell KING, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00110-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Feb. 23, 2005.
    Decided April 5, 2005.

      Lew Dunn, Law Office of Lew Dunn, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

James Chynell King appeals from a revocation of his community supervision, collaterally attacking his original sentence on the basis of double jeopardy. We affirm the trial court’s judgment.

According to a police officer’s report filed in the record, Officer Shane Guthrie stopped King November 23, 2001, for driving with a suspended license. After confirming that King’s license was still suspended, Guthrie attempted to arrest him, but King resisted. Guthrie sprayed King with his chemical dispensing device, after which King fled to a residence and Guthrie followed. Both entered the residence, where they engaged in an altercation, during which King gained control of Guthrie’s chemical dispensing device and sprayed Guthrie. Guthrie, by the use of his sidearm, was able to ultimately subdue King, and, with assistance, consummate the arrest.

In two separate indictments returned by the same grand jury, King was indicted for the felony offenses of assault on a public servant and taking a weapon from a peace officer. See Tex. Pen.Code Ann. § 22.01(b)(1) (Vernon Supp.2004-2005), § 38.14(e) (Vernon 2003). On February 27, 2002, a jury found King not guilty of the assault on a public servant charge. On May 28, 2002, King pled guilty before a jury to the taking a weapon from a peace officer charge, and the jury assessed his punishment at five years’ imprisonment, but recommended King be granted community supervision. The trial court sentenced King to five years’ imprisonment, but, in accordance with the jury’s verdict, suspended imposition of that sentence and placed King on community supervision for five years.

On May 11, 2004, the State filed an application to revoke King’s community supervision, contending King had violated a condition of his supervisión by testing positive for use of marihuana. King pled true to the allegation June 7, 2004. The trial court revoked King’s community supervision and imposed the sentence of five years’ imprisonment. In this appeal, King contends his prosecution for taking a weapon from a peace officer was in violation of the Double Jeopardy Clauses of the United States and Texas Constitutions.

The Double Jeopardy Clause in the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb;.... ” U.S. Const, amend. V. Similarly, the Texas Constitution provides that “[n]o person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Tex. Const, art. I, § 14; see Tex.Code CRiM. PROC. Ann. art. 1.10 (Vernon 2005).

The Double Jeopardy Clause in the Fifth Amendment embodies several concepts: it protects a person from being twice prosecuted for the same offense; it precludes the state from prosecuting someone for the same offense or a lesser-included offense after a jury has acquitted the accused; and it bars punishing a person more than once for the same offense. Ex parte Infante, 151 S.W.3d 255, 260 (TexApp.-Texarkana 2004, no pet.) (citing Monge v. California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998)). The Fifth Amendment’s Double Jeopardy Clause is enforceable against the States through the Fourteenth Amendment. In-fante, 151 S.W.3d at 260. Conceptually, the United States and the Texas double jeopardy provisions are identical. See Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim.App.1990). King apparently relies on that aspect of the Double Jeopardy Clause precluding the State from prosecuting a person for the same offense after a jury has acquitted that person.

We must first decide if it is permissible for King to raise the issue of double jeopardy for the first time on appeal, thus collaterally attacking his original sentence on that basis. The general rule is that, in an appeal from revocation of community supervision, an appellant may raise issues relating to the original plea proceeding only in appeals taken when community supervision was first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999); Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App.1990). However, a judgment that is void is an exception to the general rule. Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App.2001).

A judgment is void in very rare situations, usually due to a lack of jurisdiction. The ' question of whether double jeopardy is a jurisdictional defect has not been decided by this Court. If we determine that it is, and if King is correct that the judgment adjudging him guilty of taking a weapon from a peace officer was in violation of the prohibition against double jeopardy, then the trial court was without jurisdiction and such judgment, and the order placing him on community supervision pursuant to that judgment, are void. Under those circumstances, King may raise the issue of double jeopardy for the first time on appeal. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex.Grim.App.2001) (lack of jurisdiction over case renders judgment void and it may always be collaterally attacked). If, on the other hand, we determine that double jeopardy is not a jurisdictional defect, then the trial court was not without jurisdiction (even if King is correct in his claim of double jeopardy), and he was required to raise that issue at the time he was placed on community supervision, and having failed to do so, he cannot now raise it for the first time on appeal.

The Texas Court of Criminal Appeals has declined to rule that double jeopardy is a jurisdictional defect. See Haight v. State, 137 S.W.3d 48, 49 n. 5 (Tex.Crim.App.2004); Harrison v. State, 767 S.W.2d 803, 804 n. 1 (Tex.Crim.App.1989). The Austin Court of Appeals has determined that, until the Texas Court of Criminal Appeals holds otherwise, the Austin court will treat double jeopardy claims as nonju-risdictional errors. Yount v. State, No. 03-96-00565-CR, 1998 WL 3205,1998 Tex. App. LEXIS 25 (Tex.App.-Austin Jan.8, 1998, no pet.) (not designated for publication) (citing Berrios-Torres v. State, 802 S.W.2d 91, 94 (Tex.App.-Austin 1990, no pet.)). The Waco Court of Appeals has also concluded that double jeopardy is a nonjurisdictional defect. Ramirez v. State, 36 S.W.3d 660, 663 (Tex.App.-Waco 2001, pet. ref'd). Other courts of appeals have reached the opposite conclusion. Okigbo v. State, 960 S.W.2d 923 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd); Cole v. State, 776 S.W.2d 269 (Tex.App.-Houston [14th Dist.] 1989, no pet.); Rodriguez v. State, 750 S.W.2d 906 (Tex.App.-Corpus Christi 1988, pét. ref'd); Harrison v. State, 721 S.W.2d 904 (Tex.App.-Dallas 1986), vacated & remanded on other grounds, 767 S.W.2d 803 (Tex.Crim.App.1989).

We now align ourselves with those courts holding that double jeopardy is a nonjurisdictional defect and agree with the Waco court that “it is more accurate to say that the double jeopardy clause may deprive the second proceeding of being a valid conviction, but does not deprive the trial court of its jurisdiction over the matter.” Ramirez, 36 S.W.3d at 663.,

Even if King could complain in this appeal that the original proceeding in which he pled guilty violated the prohibition against double jeopardy, he must still preserve the complaint for our review. Generally, a timely objection is required to preserve error for review. See Tex.R.App. P. 33.1. King therefore had the burden to preserve, in some fashion, a double jeopardy objection at or before the time the issue of his guilt was submitted to the trial court to decide. See Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App.2000). This he failed to do — he failed to object to the second prosecution before he was adjudged guilty by the trial court. Further, he made no special plea “that he has already been prosecuted for the same or a different offense arising out of the same criminal episode that was or should have been consolidated into one trial, and that the former prosecution” resulted in an acquittal. See Tex.Code CRiM. PROC. Ann. art. 27.05 (Vernon 1989). Even at the hearing on the State’s motion to revoke community supervision, King pled true to the alleged violation and still did not raise the issue of double jeopardy. King did nothing before, during, or after being placed on community supervision to preserve the error he now raises on appeal. He cannot accept the benefits of community supervision and then complain of double jeopardy for the first time after that supervision is revoked. The Texas Court of Criminal Appeals has held that a defendant may waive the right not to be twice placed in jeopardy for the same offense. Ex parte Birdwell, 7 S.W.3d 160, 163-64 (Tex.Crim.App.1999). We conclude King waived this right by not timely asserting it.

Nonetheless, because of the fundamental nature of double jeopardy protections, a double jeopardy claim may be raised for the first time on appeal or for the first time on collateral attack when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record, and when (2) the enforcement of the usual rules of procedural default serves no legitimate state interests. Gonzalez, 8 S.W.3d at 643.

In Barnett, this Court held that a double jeopardy violation was apparent from the face of the record. Barnett v. State, 83 S.W.3d 810, 813 (Tex.App.-Texarkana 2002, no pet.). There, the first trial ended in a mistrial granted at the defendant’s request after the prosecutor, having been repeatedly warned and admonished, offered into evidence materials he was expressly instructed not to mention. Id. at 812-13. After dismissing the first jury, the trial court immediately summoned another venire and proceeded with the retrial. Id. at 813. Relying on Gonzalez, we held that “successive petition” claims are sufficiently apparent from the record to have violated the double jeopardy clause to be adequately raised and considered on the merits on appeal. Id.

Barnett is distinguishable from the case at hand. King was not subjected to a successive petition prosecution. King pled guilty to an indictment that on its face described an offense separate from the offense in the indictment charging him with assault on a public servant. The United States Supreme Court has held that a defendant who pleads guilty to “two counts with facial allegations of distinct offenses” may not raise a successive prosecution claim for the first time on collateral attack primarily because this would have required “further proceedings at which to expand the record with new evidence.” United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). King relinquished any opportunity to receive a factual hearing on a double jeopardy claim. Absent such record, he cannot prove his double jeopardy claim by merely relying on the two indictments and the existing record. Thus, King cannot collaterally attack the second prosecution for the first time on appeal because further proceedings at which to expand the record with new evidence is required. There is no double jeopardy violation clearly apparent on the face of the record.

Further, requiring King to have timely raised his double jeopardy claim at the trial court level serves legitimate state interests. Such interests were clearly stated by the Amarillo Court of Appeals (and quoted by the Waco court in Ramirez):

The State has a valid interest in avoiding problems which would interfere with its lawful prosecution of alleged crimes and in being able to research and prepare responses to claims of double jeopardy. It also has a valid interest in being able to investigate and present any evidence which might exist that supports or controverts claims of double jeopardy in order that prosecutions be dismissed and that valid prosecutions continue when it is proper to do so. It has a valid interest in conserving valuable judicial time by not going through unnecessary trials when a double jeopardy claim is valid.

Casey v. State, 828 S.W.2d 214, 218 (Tex.App.-Amarillo 1992, no pet.).

Because King’s alleged double jeopardy violation is not clearly apparent on the face of the record, and because requiring him to have timely raised this alleged violation at the trial court level serves legitimate state interests, King cannot now raise it for the first time on appeal.

We affirm the judgment.

      . The court in Nix stated:
      A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel,.... While we hesitate to call this an exclusive list, it is very nearly so.

        Nix, 65 S.W.3d at 668 (footnotes omitted).

      . Respondents who "pleaded guilty to indictments that on their face described separate conspiracies” could not raise a successive prosecution claim for the first time on collateral attack primarily because "they cannot prove their claim without contradicting those indictments, and that opportunity is foreclosed by the admissions inherent in their guilty pleas." Broce, 488 U.S. at 576, 109 S.Ct. 757.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    Nicholas Duran BALLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00039-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 20, 2005.
    Decided April 8, 2005.

      Elizabeth L. DeRieux, Brown McCarroll LLP, Longview, for appellant.
    Ray Bowman, Asst. Dist. Atty., Long-view, for appellee.
    Before MORRISS, C.J.', ROSS and CARTER, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

In an unusual sequence of events, Nicholas Duran Ballard kidnapped his former girlfriend, Leigh Anne Lambeth, at gunpoint, forced her to accompany him to his house, had admittedly consensual sex with her, and then asked her to accompany him in a car on a local bill-paying trip — even leaving her alone in the passenger seat of the car two times during the trip while he went into businesses to pay bills. This appeal, after a somewhat labyrinthine path through the courts, involves solely Ballard’s complaint that, tried for aggravated kidnapping, he failed to get a reduced punishment under Section 20.04(d) of the Texas Penal Code because the trial court failed to find that Ballard voluntarily released Lambeth in a safe place. Ballard challenges the sufficiency of the evidence to support the trial court’s finding. We find the evidence sufficient and therefore affirm. To explain how we reach that conclusion, this opinion addresses (1) the standards and scope of our review; (2) whether, under Section 20.04(d), one “releases” his or her kidnapping victim by just making it easy for him or her to escape, or, in other words, reduces the restraints on the victim; and (3) the sufficiency of the evidence.

1. The Standards and Scope of Our Review

It is generally accepted that the burden of proof at trial dictates the standard of appellate review. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004); Howard v. State, 145 S.W.3d 327, 333 (Tex.App.-Fort Worth 2004, no pet.). Ballard bore the burden of proving this defensive issue by a preponderance of the evidence. See Tex. Pen.Gode Ann. § 20.04(d). There is also agreement among the courts of appeals that the proper standard oí factual sufficiency review — where the defendant has the burden of proof by a preponderance of the evidence — is whether, after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App.1990).

But the courts of appeals split on whether a court of appeals even possesses jurisdiction to review legal sufficiency of the evidence where the defendant bears the burden of proof by a preponderance of the evidence. The disagreement on this issue seems to center on the Meraz court’s establishment of a standard for reviewing factual sufficiency of the evidence on an issue where a defendant has the burden of proof by a preponderance of the evidence.

In Meraz, the appellant challenged a jury’s determination that he was competent to stand trial on charges of sexual assault of a child. See id. at 147. The Texas Court of Criminal Appeals held that Article V, Section 6 of the Texas Constitution conferred conclusive jurisdiction on the intermediate appellate courts to resolve challenges to the fact-finder’s failure to find in favor of a defendant’s affirmative defense. Id. The court went on to establish the widely-accepted standard for reviewing the factual sufficiency of the evidence on this type of finding. Id.

But the extensive discussion regarding jurisdiction over such points of error and the appropriate standards for reviewing them left open issues regarding legal sufficiency review. The courts of appeals have split on how to interpret Meraz on that issue. To illustrate the disagreement, we will examine recent cases outlining our sister courts’ interpretations of Meraz when an appellant challenges the legal sufficiency of the evidence to support the fact-finder’s rejection of an issue on which the appellant bears the burden of proof.

According to the minority view, represented by Patterson v. State, Meraz stands for the position that the courts of appeals do not have jurisdiction to review the legal sufficiency of the evidence on these types of issues. See Patterson v. State, 121 S.W.3d 22, 24 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d). Under this interpretation, when a defendant seeks appellate review of a fact-finder’s failure to make a finding on which the defendant has the burden of proof, such as on an affirmative defense, the defendant invokes the appellate court’s factual sufficiency review jurisdiction. Id.; Naasz, 974 S.W.2d at 421. Because, the Patterson and Naasz courts held, the courts of appeals have no legal sufficiency review jurisdiction in this situation, each overruled the appellant’s legal sufficiency point of error and went on to address the factual sufficiency issue. See Patterson, 121 S.W.3d at 24; Naasz, 974 S.W.2d at 421.

On the other hand, the majority of the intermediate appellate courts does not read Meraz to exclude a legal sufficiency review of the evidence. See Howard, 145 S.W.3d at 332. Because Meraz draws from civil law in linking factual sufficiency review of a rejected affirmative defense to the preponderance of the evidence burden of proof at trial, the Howard court concluded the appropriate legal sufficiency standard of review is likewise found in civil law, in cases in which the burden of proof at trial is proof by a preponderance of the evidence. Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

Under the civil standard of review, an appellant challenging the legal sufficiency of the evidence to support an adverse answer on which he or she had the burden of proof must satisfy two inquiries. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the appellant’s position on the issue is established as a matter of law. Id.; Sterner, 767 S.W.2d at 690.

We agree with the Howard court that the Sterner standard is the proper legal standard of review for a criminal defendant’s legal sufficiency challenge to the fact-finder’s rejection of a Section 20.04(d) sentence reduction. We conclude we are to review both the factual and legal sufficiency of the evidence.

2. “Release” Under Section 20.01(d) Requires More than Simple Reduction of Restraints

Aggravated kidnapping is generally punished as a first-degree felony, carrying a sentence of five to ninety-nine years or life. Tex. Pen.Code Ann. §§ 12.32(a), 20.04(c) (Vernon 2003). At the punishment stage of a trial, an individual convicted of aggravated kidnapping is eligible for a lesser sentence if he or she can show by a preponderance of the evidence the individual “voluntarily released the victim in a safe place.” Tex. Pen.Code Ann. § 20.04(d). If the defendant successfully shows this mitigating factor, the offense for which he or she was convicted becomes punishable as a second-degree felony rather than a first-degree felony. So, on a showing of voluntary release in a safe place, the defendant is subject to a reduced range of punishment, two to twenty years. Tex. Pen.Code Ann. § 12.33. (Vernon 2003); Brown v. State, 98 S.W.3d 180, 181-82 (Tex.Crim.App.2003).

Here, Ballard argues he voluntarily released Lambeth in a safe place within the meaning of the statute because he left her alone in the car, twice, giving her the power to escape. That requires a close examination of the caselaw addressing “release.”

In Brown, the defendant brought the victim to the hospital only after she promised she would claim her neck wound he caused was self-inflicted. Brown, 98 S.W.3d at 182. The trial court concluded Brown had not voluntarily released his victim because he had been tricked or manipulated into taking her to the hospital. Id. The Tyler Court of Appeals agreed, holding that, in order for the action to qualify as a voluntary release, the action must be the spontaneous product of the actor’s free will, uninfluenced by another’s persuasion, coercion, or solicitation. Id.

The Texas Court of Criminal Appeals disagreed with the Tyler court, rejecting such a broad definition and, instead, applying a narrow definition of “voluntary” under Section 20.04(d) of the Texas Penal Code. Id. at 188. In order for the action to be voluntary, there can be no element of rescue by police or escape by the victim. Id. The court concluded such a definition was consistent with the legislative purpose of Section 20.04(d) to encourage kidnappers to release their victims. Id.

On remand, the Tyler court concluded that, based on the narrow definition of “voluntary release,” Brown should have been subject to the lesser sentence under Section 20.04(d) although he may have been tricked or manipulated into bringing his victim to the hospital for medical treatment. The Tyler court reversed and remanded the case for a new punishment hearing. Brown v. State, 109 S.W.Sd 550, 551 (Tex.App.-Tyler 2008, no pet.); see also Patterson, 121 S.W.3d at 25 (kidnapper voluntarily released children in safe place even though release may have been conditional when he returned children to their mother based on her promise she would not call police).

In a second case, after a road-rage episode in which a kidnapper, Carreon, chased recklessly after a driver who cut him off in traffic, Carreon wrecked the vehicle carrying him and the two elderly women he kidnapped. Carreon v. State, 63 S.W.3d 37, 38 (TexApp.-Texarkana 2001, pet. refd). After he began screaming at his captives to push the ear out of the ditch, citizens confronted him. Id. After one of the victims alerted the gathering crowd that Carreon was holding them at gunpoint, the citizens scuffled with Car-reon until police arrived and took Carreon into custody. Id.

The trial court properly refused to include a jury instruction on whether Car-reon voluntarily released his victims in a safe place. Id. Concluding that the evidence did not raise the issue that Carreon had done so, this Court overruled Car-reon’s point of error and affirmed the trial court’s sentence. Id.

Although decided before Brown, Carreon’s rationale remains largely sound in light of Brown. We noted in Caweon that the application of Section 20.04(d) should focus on whether the defendant performed an act of release, not whether the victim had the means to escape. Id. at 39. We repeat this Court’s conclusion in Carreon that an accused, in order to trigger the mitigating effect of Section 20.04(d), “must have performed some overt and affirmative act that brings home to the victim that he/she has been fully released from captivity.” Id.; see Harrell v. State, 65 S.W.3d 768, 772 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); Hernandez v. State, 10 S.W.3d 812, 822 (Tex.App.-Beaumont 2000, pet. ref'd). That analysis is consistent with the holding in Brown that “voluntary release” does not include rescue or escape.

In a third case, Storr, the victim left his car running outside and entered a post office. Storr v. State,' 126 S.W.3d 647, 648, 652-53 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). Inside the post office, a masked man held a gun to the victim’s head, demanded his wallet, and then ordered him to return to the car. Id. Another masked man had entered thé car and was sitting in the driver’s seat. Id. After driving to a dark, isolated area, the masked men threatened to kill the victim and forced him into the trunk of the car when another car approached the area. Id. The men then began driving with the victim in the trunk. Id. After being stopped for a traffic violation and gaining the victim’s cooperation and silence by threat, the men allowed the victim out of the trunk and forced him to drive back to the post office. Id. They then got out of the car and left. Id. The victim then drove home. Id.

Relying on the definition of voluntary release in Brown, the Fourteenth court concluded that, on these facts, defense counsel rendered ineffective assistance when he failed to request an instruction under Section 20.04(d) for a reduced sentence. Id. at 653. The court held that the evidence conclusively established the defendant had voluntarily released the victim in a safe place. Id. at 652.

Thus, we review the evidence to determine whether it is legally and factually sufficient to support the trial court’s finding that Ballard did not voluntarily release Lambeth by taking some affirmative step of release beyond merely reducing his restraints on Lambeth.

3. The Evidence Is Sufficient To Support the Finding on Release

First, we review the evidence generally, before assessing its sufficiency and finding it legally and factually sufficient,

Ballard and Lambeth share a child from their prior relationship; and, although Ballard may have married another woman sometime before the kidnapping, he had gained access to Lambeth’s email records and was angered to discover she had started a relationship with another man. On an earlier occasion, Ballard had told Lam-beth he would kill her if she had another boyfriend. According to Lambeth, Ballard had also assaulted her and had broken into her home.

When Lambeth arrived at the Kilgore College campus for her classes April 5, 2001, Ballard confronted her and kidnapped her at gunpoint. Lambeth explained her fear when Ballard approached her with the handgun: “I was scared and I was going where [Ballard] said. I did not want him to kill me.”

Ballard compelled Lambeth to drive to his house in Henderson, where the two had consensual sex. Lambeth’s initial statement indicates that, even though Ballard no longer held a gun on her after the two arrived at his house, he still had control over her movement and she was not free to leave. Lambeth stated she was “scared to try to leave because [she] knew he would catch [her].” While the two were at Ballard’s house, Lambeth admits, she wanted to leave, but Ballard would not let her.

After approximately three hours at the house, Ballard then had Lambeth go with him in a car to pay bills. Hoping he would let her go home after the errands, she accompanied him.

Ballard did not take his gun on the trip. Ballard left Lambeth in her running vehicle while he went into two different locations. Lambeth stated she considered leaving him there: “I started crossing over into the driver’s seat wanting to leave him and [Ballard] returns to the car before I could leave.” She also expressed her desire to go home and her hope that, after the errands, she could go home. At a different point, she stated she felt she was free to go and no longer felt as though she was in danger. At the bank, she thought Ballard was no longer a threat and that she could have escaped. Rather than being afraid of Ballard, she felt depressed and upset.

She no longer feared that Ballard would catch her if she left and explained it was her decision to stay: “I could leave if I wanted to, but I didn’t want to leave him there.” She attributes her remaining in the truck to her own feelings. She did not leave at that point, she said, “[bjecause [she] wouldn’t do that to him, [she] wouldn’t leave him stranded.” At that point, “everything was back to normal.” To demonstrate when Lambeth felt she was out of danger and free to go, she testified to the following:

I could have left him, you know. I didn’t have to take him to town, I could have left in the car then, I just didn’t. I just felt — I didn’t feel he was a threat to me at that point and I knew he wouldn’t harm me after that. I pretty much knew he wasn’t going to harm me after we talked a little while in the car on the way to his house.

However, in her initial statement, she also stated, “I didn’t leave because I just got back in the groove that I was used to.” It is unclear whether, by this statement, Lambeth meant either that she remained with Ballard willingly or that she had acquiesced to Ballard’s control and the unhealthy dynamics of their prior relationship. So, with respect to the time frame covering the bill-paying errands, Lam-beth’s initial statement contains significant evidence that, while Ballard no longer held the weapon on her, the elements of fear and control did play a part in Lambeth’s remaining in the truck when Ballard went into the store.

After Ballard paid bills, the two returned to Ballard’s house, because he asked her to do so. Ballard then attempted to persuade her to call the police to tell them that she was well and that there was no cause for concern. Lambeth refused.

The police arrived at the residence. As the police approached, Ballard physically restrained Lambeth and tried to get her to tell the police that all was well. “[Ballard] was holding onto me and I was trying to leave. He was grabbing my arm hard and was not going to let me leave. A few minutes after this, I told him I had to go, and this is when the Henderson police showed up at the house.”

Initially, Lambeth complied with Ballard’s directives, and the officers let the two drive away from his house. Shortly after the two left, Ballard had to return to get an item he had forgotten at the house. When separated from Ballard, Lambeth admitted to the police — still at the house— what had happened, and they directed her to drive to the police station. She described her emotional state when she finally admitted to the police what had happened: “I was just ready for everything to be over with at that point, I just wanted to go home and just go home.”

Ignoring all evidence to the contrary, we now review the evidence for legal sufficiency by looking to the record for evidence that supports the trial court’s adverse finding on this issue where Ballard had the burden of proof by a preponderance of the evidence. ' See Howard, 145 S.W.3d at 333-34.

Lambeth explained, with respect to the beginning of the ordeal, that she was going to go wherever Ballard directed her out of fear of being killed. This fear seemed to continue on arrival at Ballard’s house, since Lambeth wanted to leave but was too frightened to do so. She expressed her fear that Ballard would find her. She indicated that she went with Ballard to run errands with the hope she could leave afterward, indicating that she did not feel free to leave before the errands. On their return to Ballard’s house, Lambeth’s captive status became more obvious again when Ballard held onto her when police arrived. Evidence suggests she did not feel free to go at this point since she was too afraid to even relay the actual happenings to the police while she was in Ballard’s presence. It was only after she was apart from Ballard that she enlisted the aid of the police.

Based on Brown’s definition of voluntary release, the evidence supports the trial court’s failure to find that Ballard voluntarily released Lambeth by temporarily leaving her in her vehicle while he ran errands. In order for Lambeth to be free from Ballard at that time, there is evidence she would have had to flee, leaving Ballard in the store. Such a requirement appears to fall into the category of “escape” which, under the narrow definition advanced by Brown, will not qualify the defendant’s conduct as a voluntary release under Section 20.04. Keeping in mind the guidance from Carreon, we are to analyze Ballard’s actions rather than those of the victim or what the victim could have or should have done in the situation.

Like the facts before us, the kidnappers in Storr left the victim in a motor vehicle with its motor running. In contrast, however, in Storr the kidnappers left their victim without any expressed intent of returning to the vehicle and without evidence of knowing how to find him later or of any continuing power over him, thus leaving that victim free to return to his home. Here, when Ballard left Lambeth in her vehicle, the evidence suggests that he intended to return momentarily, he knew how to find her later had she driven off, and he had some continuing power over her. In Storr, there was no such evidence.

We conclude there is legally sufficient evidence to support the trial court’s failure to find that Ballard voluntarily released Lambeth in a safe place.

For our factual sufficiency review, we consider all the evidence relevant to this issue and will determine whether the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. See Meraz, 785 S.W.2d at 154-55. Having already outlined the evidence supporting the trial court’s finding, we will now add to the discussion the evidence that may be seen to support a contrary finding.

The evidence that would tend to support a finding that Ballard did voluntarily release Lambeth is found in Lambeth’s testimony depicting the events surrounding the trip to pay bills. She testified Ballard left her alone in her car while he went inside. Lambeth testified that, at the time, she thought she was free to go and no longer felt as though she was in danger.

Lambeth’s testimony contains elements of two different scenarios, one in which Ballard continued to control her and one in which she wanted to stay with him out of an apparent sense of loyalty. Lambeth’s own testimony may provide an explanation for these contrasting portraits. Lambeth reveals her bias and an interest in having changed or colored her testimony to be more favorable to Ballard. She states that Ballard’s harsh sentence caused her more pain than the ordeal itself. She also expressed her wish that her son be able to spend time with his father.

Certainly, the evidence does reveal a reduction in Ballard’s control over Lam-beth, but never do Ballard’s actions constitute a voluntary release of Lambeth. While there is conflicting evidence on the matter — -and Lambeth’s testimony is not entirely clear on whether she felt free to leave — what is clear is that the trial court, acting as finder of fact in the face of conflicting evidence, was authorized to believe or disbelieve any portion of the evidence.

Conclusion

Legally and factually sufficient evidence supported the trial court’s conclusion that Ballard’s actions did not constitute “voluntary release” to trigger mitigation of Ballard’s punishment for aggravated kidnapping. Here, Ballard did not communicate to Lambeth that she was free to go, and later events when the police were involved demonstrated that she probably was, in fact, not free to go. Ballard’s act of temporarily leaving Lambeth in the vehicle may have permitted her to escape easily, but, under Brown, allowing a kidnapping victim the ability to escape does not constitute a release.

Accordingly, we overrule Ballard’s contention and affirm the trial court’s judgment.

      . On August 10, 2001, Ballard pled guilty to aggravated kidnapping, a first-degree felony. The trial court deferred adjudication and placed him on community supervision for ten years. The next month, the State filed an application to revoke Ballard's community supervision. The State amended its application October 10, 2001, alleging Ballard committed another offense, had failed to report to community supervision, and had violated other administrative terms of his community supervision. On October 22, 2001, the trial court found that Ballard had committed a new offense and had failed to report to the community supervision officer. The trial court then adjudged Ballard guilty and sentenced him to fifty years’ confinement.
      Ballard appealed, and this Court dismissed his appeal for want of jurisdiction. See Ballard v. State, No. 06-01-00220-CR (Tex.App.-Texarkana Aug. 22, 2002, no pet.) .(not designated for publication). Ballard then filed a petition for writ of habeas corpus in which he complained of trial counsel's failure to assert that Ballard voluntarily released Lambeth in a safe place. Ballard’s trial counsel stated he did not know that such a showing could mitigate the punishment for a kidnapping conviction. The Texas Court of Criminal Appeals granted the writ and remanded the matter for a new punishment trial on the issue of voluntary release.
      On remand, the trial court determined that Ballard failed to show by a preponderance of the evidence that he voluntarily released Lam-beth in a safe place. The trial court imposed the original sentence of fifty years. It is from this second punishment hearing that Ballard now appeals.

      . Tex. Pen.Code Ann. § 20.04(d) (Vernon 2003).

      . Patterson cited Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref’d), and concluded that the court of appeals lacked legal sufficiency review jurisdiction on an affirmative defense on which a defendant bore the burden of proof.

      . Nolan v. State, 102 S.W.3d 231, 237-38 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (addressing legal sufficiency issue); Tones v. State, 976 S.W.2d 345, 347 (Tex.App.-Corpus Christi 1998, no pet.) (addressing legal sufficiency); Moranza v. State, 913 S.W.2d 718, 723 (Tex.App.-Waco 1995, pet. ref'd) (addressing legal sufficiency for sake of argument); Cover v. State, 913 S.W.2d 611, 619 (Tex.App.-Tyler 1995, pet. ref'd) (addressing legal sufficiency); Cooney v. State, 803 S.W.2d 422, 425 (Tex.App.-El Paso 1991, pet. ref'd) (addressing legal sufficiency); see also Roybal v. State, No. 04-02-00647-CR, 2003 WL 22241629, at *2 (Tex.App.-San Antonio .Oct. 1, 2003, no pet.) (not .designated for publication) (addressing legal sufficiency); Gonzalez v. State, No. 2-02-291-CR, 2003 WL 21101520, at *2 (Tex.App.-Fort Worth May 15, 2003, pet. ref'd) (not designated for publication) (addressing legal sufficiency); Centell v. State, Nos. 07-98-0344-CR & 07-98-0345-CR, 2000 WL 96246, at *4 (Tex.App.-Amarillo Jan. 28, 2000, pet. ref'd) (not designated for publication) (addressing legal sufficiency for sake of argument); Brena v. State, No. 07-97-0429-CR, 1999 WL 606681, at *2 (Tex.App.Amarillo Aug. 11, 1999, pet. ref'd) (not designated for publication) (addressing legal sufficiency).

      . Carreon’s reliance on the language from Oestrick v. State, 939 S.W.2d 232 (Tex.App.Austin 1997, pet. refd), is now questionable, however. Language that the action must be free from compulsion was called into question by Brown's rejection of such a broad definition under Section 20.04(d).

      . Lambeth explained their having intercourse that day as part of a pattern of behavior during their relationship: "I feel like I have to try to get along with him or he will malte my life hell. I feel there is no way out.”

      . Apparently, people at Kilgore College, where Ballard had abducted Lambeth, had reported the abduction.


author: Justice HINOJOSA.

text:
    OXY USA, INC., Appellant, v. SOUTHWESTERN ENERGY PRODUCTION COMPANY, Appellee.
    No. 13-03-00075-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    April 14, 2005.
    Rehearing Overruled May 19, 2005.

      Amy Douthitt Maddux, Karla Ann Evans, Philip J. John, Jr., Baker Botts, L.L.P., Houston, for appellant.
    Jeff Weems, Houston, for appellee.
    Before Justices HINOJOSA, YÁÑEZ, and GARZA.
   OPINION

Opinion by

Justice HINOJOSA.

This case involves an indemnity agreement between two major oil and gas companies. After both parties filed motions for summary judgment, the trial court granted the motion of appellee, Southwestern Energy Production Company (“SEPCO”) and denied the motion of appellant, OXY USA, Inc. (“OXY”). In four issues, OXY contends the trial court erred in granting SEPCO’s motion for summary judgment and in denying its motion for summary judgment. We reverse and render.

A. BACKGROUND AND PROCEDURAL HISTORY

On June 5, 1997, OXY and SEPCO entered into a Seismic and Exploration Agreement (“SEA”), effective March 27, 1997, to conduct seismic surveys on an area of land referred to as the “Bouré project.” The SEA provided that: (1) OXY and SEPCO would equally share costs for the acquisition and development of three-dimensional seismic data; (2) OXY would receive fifty percent of the rights in seismic agreements and oil and gas leases relating to the project; and (3) OXY and SEPCO would each receive a license to the seismic data acquired. The SEA further provided that OXY and SEP-CO would mutually approve the selection of a contractor to process the seismic data.

Unbeknownst to OXY, SEPCO had previously entered into a letter agreement (“Skelly Letter Agreement”) with Skelly Exploration Company, owned by Denny Whinery (collectively “Skelly”), a consultant to SEPCO. The letter agreement, dated December 16, 1996, provided that SEPCO and Skelly would jointly market a three-dimensional seismic program for the Bouré project. SEPCO would receive a twenty-five percent working interest in all permits, options, leases and data processing, as well as a standard license to the resulting seismic data. Any additional promoted interest or promoted cash would be owned and retained by Skelly.

Also unknown to OXY, on April 29,1997, SEPCO entered into an agreement (“Seitel Agreement”) with a seismic contractor, Seitel Data Limited (“Seitel”), which provided, in part, that SEPCO would purchase four nonexclusive licenses to the Bouré project seismic data. OXY and Skelly were each designated as recipients of a license.

Shortly after OXY and SEPCO entered into the SEA, SEPCO’s parent company, Southwestern Energy Company, conducted an internal investigation of SEPCO. After the investigation, all of SEPCO’s senior management were either terminated or resigned. During the investigation, Southwestern Energy discovered inconsistencies between the SEA and the Seitel Agreement. Upon investigation, Southwestern Energy concluded that OXY was unaware of both the Skelly Letter Agreement and the Seitel Agreement.

Following disclosure of the inconsistent agreements, OXY informed SEPCO that because SEPCO had breached the SEA, OXY would not proceed under the agreement unless Skelly was removed from the project. OXY also voiced concerns regarding potential claims by Skelly if the deal were renegotiated to eliminate Skelly’s participation. In response to OXYs concerns, SEPCO offered to indemnify OXY against any claims relating to the Bouré project.

On October 16, 1997, SEPCO, OXY, and Seitel entered into a new agreement (“New Bouré Agreement”). Under this agreement, OXY and SEPCO agreed to each contribute twenty-five percent of the costs of the seismic shoot; in return, each company would receive one of four licenses to the data and a fifty percent interest in the Bouré project. SEPCO and OXY would jointly designate the recipients of the two remaining licenses. Skelly was not named as a recipient of a license. On December 11, 1997, SEPCO and OXY entered into a Joint Prosecution and Indemnification Agreement (“Indemnity Agreement”) in order to alleviate OXY’s concern that Skelly might claim an interest in the Bouré project.

Before entering into the Indemnity Agreement, SEPCO filed suit in federal court on October 31, 1997, against Whin-ery, Skelly, and others, including former employees of SEPCO, for fraud and violations of the Racketeer Influenced and Corrupt Organizations Act. On June 23, 1998, Skelly counterclaimed against SEPCO for breach of contract, defamation, and tor-tious interference with prospective economic gain. On June 16, 1999, SEPCO settled the lawsuit with Skelly and executed a mutual release of claims relating to the Bouré project. The release failed to include OXY.

Skelly subsequently sued OXY, alleging tortious interference with contract, conversion, and abuse of rights. By letter dated November 16, 1999, OXY notified SEPCO that it had been sued by Skelly, and requested that SEPCO defend and indemnify OXY in accordance with the Indemnity Agreement. SEPCO responded, without reservation of rights, that it would defend OXY. SEPCO assumed payment for OXY’s selected defense counsel, and provided OXY with access to SEPCO’s own local outside counsel. However, on the eve of trial, on June 16, 2000, SEPCO asserted it was not obligated to indemnify OXY under the Indemnity Agreement. OXY settled the lawsuit with Skelly for $2.5 million plus a license to the seismic data. SEPCO contributed $400,000 and the license.

After settling with Skelly, OXY filed suit against SEPCO, alleging breach of contract and fraudulent inducement. SEPCO counterclaimed for a declaratory judgment that the Indemnity Agreement did not cover the claims asserted by Skelly, and, in the alternative, that the Indemnity Agreement was unenforceable. SEPCO later added a counterclaim for fraud, alleging that it agreed to defend OXY without knowing that on April 27, 1998, OXY had conveyed most of its interest in the Bouré project to Petro-Hunt, L.L.C., but had reserved its rights under the Indemnity Agreement.

Both parties filed motions for partial summary judgment. The trial court denied OXY’s motion and granted SEPCO’s motion on the grounds that the Indemnity Agreement was unenforceable under Texas law and that OXY did not have a right to receive indemnity from SEPCO based on Skelly’s claims. The trial court later severed the contract claims from the remaining claims, making the summary judgment final.

B. STANDARD OF REVIEW

We review the granting of a motion for summary judgment de novo. See Natividad, v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Tex. Commerce Bank-Rio Grande Valley v. Correa, 28 S.W.3d 723, 726 (Tex.App.-Corpus Christi 2000, pet. denied). For summary judgment to be proper, the evidence must establish as a matter of law that there is no genuine issue of material fact as to any of the essential elements of the plaintiffs cause of action, or that the defendant has conclusively established all elements of an affirmative defense. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Crain v. Smith, 22 S.W.3d 58, 59 (Tex.App.-Corpus Christi 2000, no pet.). In deciding whether to sustain a summary judgment, we accept all evidence favorable to the non-movant as true, and make all reasonable inferences and resolve all doubts in the non-movant’s favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). When both parties move for summary judgment, and one motion is granted and the other is denied, we must rule on all questions presented by the motions and render such judgment as the trial court should have rendered. Comm’rs Court of Titus County v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988) (orig.proceeding) (per curiam).

C. ENFORCEABILITY OF THE Indemnity Agreement

In its first issue, OXY contends the trial court erred in granting SEPCO’s motion for- summary judgment and in denying its motion for summary judgment because the Indemnity Agreement is enforceable as a matter of law. SEPCO contends the Indemnity Agreement does not satisfy the fair notice requirements promulgated by the supreme court. In the alternative, SEPCO asserts that the Indemnity Agreement does not provide indemnity for intentional tort claims.

1. Applicability of Fair Notice Requirements

Because indemnity agreements involve “an extraordinary shifting of risk” from the exculpated party to the indemnitor, the Texas Supreme Court has developed the fair notice requirements of express negligence and conspicuousness. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex.1993). The express negligence requirement provides that when a party is seeking indemnity from the consequences of that party’s own future negligence, that intent must be expressed in unambiguous terms within the four corners of the contract. Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex.1987). The eonspicuousness requirement provides that something must appear on the face of the contract indicating the intent to transfer liability so that it will attract the attention of a reasonable person when he looks at it. Dresser Indus., 858 S.W.2d at 508. Whether an indemnity clause complies with these fair notice requirements is a question of law for the court. Id. at 509-10.

The fair notice requirements apply to indemnity agreements when “the effect ... is to reheve a party in advance of responsibility for its own negligence.” Id. at 507 (emphasis added); see also Solis v. Evins, 951 S.W.2d 44, 50 (Tex.App.Corpus Christi 1997) (orig.proceeding) (noting that a party may not “prospectively contractually exculpate itself with respect to intentional torts”). ' However, the fair notice requirements have not been applied to exculpatory agreements utilized by parties after the transaction or occurrence takes place. Dresser Indus., 858 S.W.2d at 508 n. 1 (“Today’s opinion applies the fair notice requirements to indemnity agreements and releases only when such exculpatory agreements are utilized to relieve a party of liability for its own negligence in advance.”). The application of the fair notice requirements has been “explicitly limited to releases and indemnity clauses in which one party exculpates itself from its own future negligence.” Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 387 (Tex.1997) (citing Dresser Indus., 853 S.W.2d at 507 & n. 1); see Lehmann v. Har-Con Corp., 76 S.W.3d 555, 560 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (holding that express negligence did not apply to release executed after acts giving rise to released liability had occurred); Lexington Ins. Co. v. W.M. Kellogg Co., 976 S.W.2d 807, 809 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (holding that fair notice did not apply when release was executed “after the acts that could give rise to liability were completed”).

In asking us to hold that the Indemnity Agreement is unenforceable as a matter of law for failure to comply with the fair notice requirements, SEPCO asks us to extend the reach of “fair notice” to cover indemnity agreements that are used to shift liability for actions that have already occurred. In the absence of an extraordinary shifting of risk, the supreme court has “resisted expanding the fair notice requirements.” Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 193 (Tex.2004). The supreme court has noted that in adopting the fair notice requirements, it was “concerned with the injustice arising when a contracting party buries a provision substantially releasing itself from its own negligence in a way that is inconspicuous and does not provide fair notice to the other party.” Green Int'l, 951 S.W.2d at 387 (discussing Dresser Indus., 853 S.W.2d at 508). The supreme court’s concerns are not present here. The Indemnity Agreement was executed by two major oil and gas companies with equal bargaining power after negotiations that specifically contemplated the adoption of an agreement releasing OXY from liability. Both parties were fully aware of the risk-shifting nature of the agreement and limited it in scope to liability arising from a specific series of transactions that had already occurred. We decline to extend the fair notice requirements.

2. Accrual of Claims

SEPCO also contends that not all of Skelly’s claims arose from acts that occurred prior to the execution of the Indemnity Agreement. Specifically, SEPCO asserts that the claim for conversion did not arise until Seitel completed the seismic survey and distributed the licenses, which occurred after the Indemnity Agreement was signed. In their suit against OXY, the Skelly plaintiffs claimed, they “owned an interest and/or were entitled to possession of such data through a license pursuant to the Seitel Agreement” and that “OXY unlawfully ... exercised dominion over the 3-D seismic data to the exclusion of/or inconsistent with the rights of plaintiffs.”

SEPCO argues that the contractual grant of a license in the Seitel Agreement was merely an intangible right, and therefore, could not be the basis of the conversion claim. However, Texas recognizes conversion of intangible property where the underlying intangible right has been merged into a document and that document has been converted. Express One Int’l, Inc. v. Steinbeck, 53 S.W.3d 895, 901(Tex.App.-Dallas 2001, no pet.) (citing Neles-Jamesbury, Inc. v. Bill’s Valves, 974 F.Supp. 979, 982 (SD.Tex.1997)). Skelly’s right to a license was not merely an intangible right, but was a right merged into the Seitel Agreement. Without deciding the merits of Skelly’s conversion claim, we conclude that the claim arose when the New Boure Agreement changed the rights that had been granted in the Seitel Agreement. Thus, the claim for conversion arose on October 16, 1997, when OXY, SEPCO, and Seitel executed the New Bouré Agreement. Because all claims against OXY arose from actions that occurred prior to the execution of the indemnification agreement, we conclude the fair notice requirements do not apply.

3. Intentional Torts

In the alternative, SEPCO contends that because the Indemnity Agreement does not clearly and specifically state that SEP-CO indemnifies OXY for intentional torts, the contract was not intended to cover, and should not be interpreted to cover, intentional torts.

If there is no ambiguity, the construction of a contract is a question of law to be determined by the court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). We construe indemnity contracts under the normal rules of contract construction, with the primary goal of determining the intent of the parties. Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 284 (Tex.1998); ABB Kraftwerke Aktienge-sellschaft v. Brownsville Barge & Crane, 115 S.W.3d 287, 291 (Tex.App.-Corpus Christi 2003, pet. denied). It is the objective, not subjective, intent of the parties that controls, and the instrument alone is generally deemed to express that intent. Sun Oil Co. v. Madeley, 626 S.W.2d 726, 731 (Tex.1981) (citing City of Pinehurst, 432 S.W.2d at 518).

It is generally presumed that the parties to an instrument “intend every clause to have some effect and in some measure to evidence their agreement.” City of Pinehurst, 432 S.W.2d at 518. Provisions are to be read in the context of the instrument as a whole, not in isolation. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003); United Am. Ins. Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160, 164 (1960); New Braun fels Factory Outlet Ctr. v. IHOP Realty Corp., 872 S.W.2d 803, 309 (Tex.App.-Austin 1994, no pet.). Only when we consider all parts of the contract together can we give it the meaning that will carry out and effectuate the intention of the parties to the fullest extent. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995); City of Pinehurst, 432 S.W.2d at 519; Smith v. Liddell, 367 S.W.2d 662, 665-66 (Tex.1963).

We agree with the parties that the contract is unambiguous. At issue is whether the parties intended to limit the Indemnity Agreement to cover only specific causes of action. The Indemnity Agreement provides, in relevant part, as follows:

WHEREAS, SEPCO and OXY have previously entered into a certain Seismic and Exploration Agreement ... concerning the Bouré project ... for good and valuable consideration.
WHEREAS, certain individuals and companies, including former SEPCO employees, who performed services related to ... the Bouré project, have allegedly engaged in certain misconduct which may have increased the cost of these projects and exposed the projects to potential adverse claims by third parties.
SEPCO and OXY agree that they share a common interest in the prosecution of [claims against Skelly] and in the defense of any resulting counterclaims. SEPCO and OXY will fully cooperate with each other in the prosecution and/or defense of these claims whether or not OXY is a party to currently pending litigation or any future related litigation.
SEPCO agrees to defend, indemnify, and hold harmless OXY ... from and against all costs, expenses, claims, demands, lawsuits, court costs, attorney’s fees, and judgments directly resulting from claims brought by or in favor of any individual or entity ... claiming or purporting to claim any interest through or derived from SEPCO in those instruments defined as Seismic Agreements in the Seismic and Exploration Agreement, or in the Seismic Exploration Agreement itself, as well as all other agreements acquired by either party, subsequent to March 27,1997.

The Indemnity Agreement does not expressly limit, nor does it specifically enumerate, the types of claims to which it applies. The traditional maxim “expressio unius est exclusio alterius,” the expression of one thing is the exclusion of another, when applied as a rule of construction, instructs that “the expression in a contract of one or more things of a class implies the exclusion of all not expressed, even though all would have been implied had none been expressed.” First Nat’l Bank v. Nugent, 384 S.W.2d 224, 226 (Tex.App.-San Antonio 1964, writ ref'd n.r.e.) (quoting 17A C.J.S. Contracts, § 312); see CKB & Assoc., Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653, 655-56 (Tex.1987); Wilson v. Klein, 715 S.W.2d 814, 820 (Tex.App.-Austin 1986, writ ref'd n.r.e.). The maxim is instructive: had OXY and SEPCO expressly mentioned specific types of claims that were covered by the indemnity clause, any claim not mentioned would be excluded by implication. However, because no specific types of claims are mentioned, and there is no language indicating that limitations were intended, we presume the Indemnity Agreement applies to all claims. Thus, under general rules of contract construction, intentional torts are included in the Indemnity Agreement.

Despite this, SEPCO argues that OXY cannot indemnify itself against liability for intentional torts because it did not clearly and expressly mention intentional torts in the Indemnity Agreement. However, SEPCO cites no case mandating such a requirement. While the parties could have included a provision limiting indemnity to specific types of claims, or specifically excepting intentional torts from coverage, they did not. We will not.rewrite the agreement to “insert provisions [that the] parties could have included or to imply restraints for which they have not bargained.” Tenneco, Inc. v. Enter. Prod. Co., 925 S.W.2d 640, 646 (Tex.1996) (citing Dorroh-Kelly Mercantile Co. v. Orient Ins. Co., 104 Tex. 199, 135 S.W. 1165 (Tex. 1911)). Accordingly, we conclude that the Indemnity Agreement applies to intentional tort claims. OXY’s first issue is sustained.

D. PUBLIC POLICY

In its second issue, OXY asserts that the Indemnity Agreement does not violate Texas public policy. SEPCO argues that any agreement indemnifying a party for its own intentional torts is unenforceable as against Texas public policy.

While the supreme court has noted that indemnity against one’s own intentional torts does raise public policy concerns, it has not held that such indemnity agreements are prohibited. Atl. Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 n. 2 (Tex.1989). In cases where a party has contracted to indemnify itself against its own future negligence, the supreme court has held that it does not violate public policy, Allright, Inc. v. Elledge, 515 S.W.2d 266, 267 (Tex.1974); Ohio Oil Co. v. Smith, 365 S.W.2d 621, 624 (Tex.1963), except where there is a disparity of bargaining power such that one party is so disadvantaged that it is essentially forced to agree to the exculpatory provision. All-right, Inc., 515 S.W.2d at 267 (holding that parking lot owner did not have sufficiently dominant relationship over vehicle owners for public policy to prevent enforcement of agreement limiting liability); Crowell v. Hous. Auth. of Dallas, 495 S.W.2d 887, 889 (Tex.1973) (holding it to be contrary to public policy for housing authority to exempt itself from liability to its own tenants); Valero Energy Corp. v. M.W. Kellogg Constr. Co., 866 S.W.2d 252, 256 (Tex.App.-Corpus Christi 1993, pet. denied) (holding that enforcement of indemnity provision for gross negligence does not offend public policy when parties are sophisticated entities bargaining from positions of substantially equal strength).

SEPCO argues that because intentional torts have a higher culpable mental state than negligence claims, the shifting of liability evokes greater risk to the indemnitor and a greater public policy concern. SEPCO encourages us to consider insurance industry cases, which have held that a party cannot insure itself against its own intentional torts under the public policy rationale that “an insured is more likely to engage in behavior which is harmful to society if he believes he will not have to bear .the financial costs of his intentional indiscretions.” Wessinger v. Fire Ins. Exch., 949 S.W.2d 834, 840 (Tex.App.-Dallas 1997, no writ). SEPCO argues that allowing a party to indemnify itself against an intentional tort would allow it to create harm or injury to others with no risk of liability. We find SEPCO’s argument unconvincing in these circumstances.

We find the public policy argument of deterring misconduct by preventing a party from contracting away liability to be inapplicable in this case because the Indemnity Agreement is limited to actions that have already occurred. The public policy goal is especially inapplicable because the Indemnity Agreement acknowledges that part of the rationale underlying its adoption lies in the misconduct of the indemnitor. After acknowledging that SEPCO’s own misconduct exposed the Bouré project, and all parties involved, to litigation, SEPCO agreed to indemnify OXY against any potential claims stemming from OXY’s continued participation, in order to secure that participation. Public policy would not be served by allowing SEPCO to induce OXY to forgo a breach of contract claim and renegotiate based upon a promise of indemnity, and then disavow that indemnity. OXY would not be exposed to any liability were it not for the initial misconduct of SEPCO.

We conclude that public policy does not prohibit the enforcement of the Indemnity Agreement between SEPCO and OXY. OXY’s second issue is sustained.

E. Claims Covered

In its third issue, OXY contends that Skelly’s claims against it are covered by the Indemnity Agreement. SEPCO argues that Skelly’s claims are not based on interests derived through or from SEPCO in any agreement covered by the Indemnity Agreement.

In the Indemnity Agreement, SEPCO agreed to indemnify OXY against “all costs, expenses, claims, demands, lawsuits, ... and judgments resulting from claims brought by ... any individual or entity [not a part of the indemnity agreement] claiming ... any interest through or derived from SEPCO in” (1) the instruments defined in the SEA as “Seismic Agreements,” (2) the SEA itself, and (3) all other agreements acquired by either party subsequent to March 27, 1997. The SEA defines “Seismic Agreements” as “oil, gas and mineral leases or subleases; permits and/or options to acquire oil, gas, and mineral leases from the owners of the land; and/or mineral rights or mineral leases under the AMI, any of which permit the conducting of a seismic survey program as described in Article V hereof.”

In its amended pleading, Skelly included claims against OXY for (1) tortious interference with contractual and business relations, (2) conversion, and (3) abuse of rights. Skelly’s claims stem from asserted contractual interests in both the Skelly Letter Agreement and the Seitel Agreement, and an ownership or possessory interest in the three-dimensional seismic data through a license under the Seitel Agreement. In deciding whether Skelly’s claims are covered by the Indemnity Agreement, we must determine whether each of these interests constitutes “interests through or derived from SEPCO” as those terms were intended by the parties to the contract.

1. The Skelly Letter Agreement

The Skelly Letter Agreement is a letter agreement dated December 16, 1996, between Skelly and SEPCO. The agreement notes that Skelly had generated a three-dimensional seismic area of mutual interest, and provided that SEPCO and Skelly would jointly market the three-dimensional seismic program for the Bouré project. SEPCO would receive a twenty-five percent carried interest in all permits, options, leases, data processing and a standard license to one hundred percent of the seismic data; with any additional promoted interest or promoted cash to be owned and retained by Skelly.

SEPCO contends that the Skelly Letter Agreement is not a “Seismic Agreement.” However, SEPCO fails to state a basis for that contention. We conclude that the Skelly Letter Agreement anticipates the conducting of a seismic survey program and the division of permits, options, and leases acquired in relation to that survey. Accordingly, we hold it is a “Seismic Agreement,” as that term was defined in the SEA.

Prior to the Skelly Letter Agreement, SEPCO had contracted and obtained permission to conduct seismic surveys in the area later to become the Bouré project. In the Skelly Letter Agreement, SEPCO agreed to bring Skelly into the project to acquire and market the seismic data. Thus, Skelly’s interests as defined in the Skelly Letter Agreement were “interest[s] through or derived from SEPCO.”

Because the Skelly Letter Agreement is considered a “Seismic Agreement” in accordance with the Indemnity Agreement, and confers an interest to Skelly through SEPCO, we hold that Skelly’s claims based on rights stemming from the Skelly Letter Agreement are covered by the indemnity contract between SEPCO and OXY.

2. The Seitel Agreement

SEPCO contends that Skelly’s right to receive a license under the Seitel Agreement is not derived from SEPCO, but is an independent claim not covered by the Indemnity Agreement. The Seitel Agreement is an April 29, 1997 letter agreement between SEPCO and Seitel, confirming certain details of the parties’ participation in the Bouré project.

The Seitel Agreement required SEPCO to purchase up to four licenses to the seismic data. In the agreement, SEPCO designated Skelly as the recipient of one of the licenses. Skelly’s ownership/possesso-ry interest in the three-dimensional seismic data was based on this license. Skelly only had a right to acquire this license because SEPCO contracted to purchase a license for the benefit of Skelly. Thus, Skelly’s right to a license to the seismic data under the Seitel Agreement is an “interest through or derived from SEP-CO.” Further, because the Seitel Agreement constitutes “an agreement acquired subsequent to March 27, 1997,” Skelly’s claims based on rights stemming from the Seitel Agreement are covered by the indemnity contract between SEPCO and OXY,

We hold that all claims brought against OXY by Skelly directly result from a claimed interest derived from or through SEPCO and are, therefore, covered by the Indemnity Agreement. OXY’s third issue is sustained.

F. OXY’s Assignment of Bouré Interests

In its fourth issue, OXY contends that when it assigned its interests in the Bouré project to Petro-Hunt, L.L.C., it specifically reserved its rights under the Indemnity Agreement. In April 1998, OXY executed a Conveyance and Assumption Agreement, conveying to Petro-Hunt, L.L.C., certain assets, including OXY’s rights and interests in the SEA and in a September 8, 1997 agreement between OXY and Seitel. SEPCO asserts that because at the time of the assignment there was no judgment or settlement against OXY, there was only a potential cause of action and no existing right to indemnity to be reserved.

The rights reserved by OXY are much broader than SEPCO asserts. OXY specifically excepted and reserved “all rights relating to ... existing claims and causes of action ..., including without limitation rights under that certain Joint Prosecution and Indemnification Agreement....” At the time of the assignment, all of the operative facts giving rise to the eventual suit against OXY had occurred. The right to indemnity is a right relating to those existing claims. We conclude that OXY retained its right to be indemnified under the Indemnity Agreement. OXY’s fourth issue is sustained.

G. ConClusion

We reverse the orders of the trial court granting SEPCO’s motion for summary judgment and denying OXY’s motion for summary judgment. Because we hold that the Indemnity Agreement is enforceable against SEPCO and covers all claims in question, we render judgment denying SEPCO’s motion for summary judgment and granting OXY’s motion for summary judgment.

      . See 18 U.S.C. § 1961, etseq.

      . We note that while Lehmann v. Har-Con Corp., 76 S.W.3d 555 (Tex.App.-Houston [14th Dist.] 2002, no pet.) and Lexington Ins. Co. v. W.M. Kellogg Co., 976 S.W.2d 807 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) concern releases, the supreme court has clarified that because releases and indemnity clauses both operate to transfer risk, the policy considerations underlying them are similar enough to warrant the application of the fair notice requirements to indemnity agreements as well. Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508-09 (Tex.1993). Thus, authorities discussing the policy and applicability of the fair notice requirements to releases are applicable to indemnity clauses.

      . The cases on which SEPCO relies for the proposition that intentional torts must be clearly and expressly stated in order to be covered, see, e.g., Houston Lighting & Power Co. v. Atchison, Topeka & Santa Fe Ry., 890 S.W.2d 455, 458 (Tex.1994); Gulf Coast Masonry, Inc. v. Owens-Illinois, Inc., 739 S.W.2d 239, 239 (Tex.1987); Webb v. Lawson-Avila Constr., 911 S.W.2d 457, 460 (Tex.App.-San Antonio 1995, writ dism’d), all involve application of the fair notice requirements. Because we have determined that fair notice does not apply here, we conclude these cases are not instructive.

      . The SEA states that SEPCO had "previously acquired contractual rights to conduct a seismic survey(s) ...,” and had previously entered into “certain Seismic Agreement [sic] with landowners ... which ... include[d] the right to conduct seismic surveys on the lands described....”


author: Justice MORRIS.

text:
    Brian DOTSON, Appellant, v. GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 05-04-00406-CV.
    Court of Appeals of Texas, Dallas.
    April 27, 2005.

      Robert J. West, Austin, for Appellant.
    Edgar Oran Coble, Fort Worth, for Ap-pellee.
    Before Justices MORRIS, WHITTINGTON, O’NEILL.
   OPINION

Opinion by

Justice MORRIS.

This is an appeal from a dismissal for want of jurisdiction. In a single issue on appeal, Brian Dotson argues the trial court erred in ruling it did not have subject matter jurisdiction over his suit because he failed to exhaust his administrative remedies. Dotson contends the relief he sought could not have been granted by the administrative agency and, therefore, he was not required to exhaust his administrative remedies. We disagree with Dotson’s contention and affirm the trial court’s dismissal of the suit.

I.

Brian Dotson was employed as a teacher at a middle school in the Grand Prairie Independent School District. In May 2001, Dotson filed a level I grievance with the District complaining that he had not been compensated for work he performed in an after-school detention program. According to Dotson, in response to the grievance, he received a written response from his supervisor denying his request for back-pay.

Dotson then filed a level II grievance challenging his supervisor’s decision. This grievance was heard by the assistant superintendent of human resources for the District. The assistant superintendent granted Dotson’s request for back-pay for one year. He also stated that Dotson would be reassigned to a high school in the District “in order to resolve the conflict existing between the grievant and campus administration.”

Dotson believed he was entitled to at least four years back-pay for his work in the after-school detention program and, accordingly, filed a level III grievance appealing the assistant superintendent’s decision. While the level III grievance was pending, Dotson alleges he was subjected to various forms of retribution for filing the grievance, including being denied duty-free lunches, planning periods, and reasonable access to the restrooms. Dotson filed grievances on these matters as well.

On February 14, 2002, the District’s board of trustees considered Dotson’s various grievances concerning both the back-pay issue and the alleged retaliation. Although no decision by the board of trustees appears in the record, Dotson contends the board upheld the previous administrative rulings. Dissatisfied with this result, Dotson filed a petition for review with the Commissioner of Education. Dotson’s petition states that the Commissioner has jurisdiction over the matter pursuant to section 7.057 of the Texas Education Code.

On August 2, 2002, before the Commissioner was able to conduct a hearing on Dotson’s petition for review, Dotson filed an original petition and request for injunc-tive relief in the trial court. Dotson alleged in his state court suit that the District breached his employment contract by not compensating him for his work in the after-school detention program. Dotson further alleged the acts of retaliation against him for filing a grievance violated the District’s policy against retaliation, which he alleged was incorporated into his employment contract. Finally, Dotson requested injunctive relief to prevent the District from reassigning him. After filing his suit in the trial court, Dotson sought a nonsuit of his claims before the Commissioner of Education. On August 15, 2002, Dotson’s request for a nonsuit was granted and his claims before the Commissioner were dismissed with prejudice.

In response to Dotson’s suit in the trial court, the District filed an answer and a plea to the jurisdiction. The District argued that because Dotson did not pursue his claims with the Commissioner of Education, he failed to exhaust his administrative remedies. The trial court granted the District’s plea and dismissed Dotson’s suit for want of jurisdiction. This appeal ensued.

II.

Dotson’s sole issue on appeal is whether the trial court erred in concluding it did not have subject matter jurisdiction over his suit. Dotson acknowledges that a party whose claims relate to the administration of school laws must generally exhaust administrative remedies with the Commissioner of Education before seeking relief from the courts. See Gutierrez v. Laredo Indep. Sch. Dist., 139 S.W.3d 863, 366 (Tex.App.-San Antonio 2004, no pet.). Dotson further acknowledges that the Commissioner of Education is authorized to review claims involving actions or decisions by a school board that allegedly violate either the school laws of the state or a provision of a written employment contract between a school district and an employee of the district if the violation would cause the employee to suffer monetary harm. Tex. Educ.Code ANN. § 7.057 (Vernon Supp.2004-5). It is clear that Dotson’s claims alleging the District breached his employment contract and violated a school policy he alleged was incorporated into his employment contract are claims within the jurisdiction of the Commissioner of Education. See id. Indeed, Dotson stated in his petition for review filed with the Commissioner that his claims were among those the Commissioner was statutorily authorized to hear. Dotson argues, however, that his suit falls within one of the exceptions to the exhaustion of remedies doctrine and, therefore, he was not required to pursue his claims with the Commissioner of Education before filing suit in state court.

There are several recognized exceptions to the rule that claimants seeking relief from the administration of school laws must exhaust administrative remedies before filing suit in state court. Exhaustion of administrative remedies is not necessary if: (1) the aggrieved party will suffer irreparable harm and the administrative agency is unable to provide relief; (2) the claims are for a violation of a constitutional or federal statutory right; (3) the cause of action involves pure questions of law and the facts are not disputed; (4) the Commissioner of Education lacks jurisdiction over the claims; (5) the administrative agency acts without authority; or (6) the claims involve parties acting outside the scope of their employment with the school district. See Gutierrez, 139 S.W.3d at 366; Jones v. Dallas Indep. Sch. Dist., 872 S.W.2d 294, 296 (Tex.App.-Dallas 1994, writ denied); Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 773-74 (Tex.App.-Houston [14th Dist.] 1991, writ denied); See also, Houston Fed’n of Teachers, Local 2115 v. Houston Indep. Sch. Dist., 730 S.W.2d 644, 646 (Tex.1987). Dotson does not contend his suit involves pure questions of law or a claim under a federal statute. Neither does he assert that any administrative agency acted without authority or that the parties were acting outside the scope of their employment by the District. Finally, as discussed above, it is clear that Dotson’s claims fall squarely within the scope of the jurisdiction granted to the Commissioner of Education. Accordingly, we address only the potential applicability of the irreparable harm and the constitutional claim exceptions to Dotson’s claims for relief.

With respect to the irreparable harm exception, Dotson argues there was no need for him to exhaust his administrative remedies with the Commissioner of Education because the Commissioner did not have the power to grant his request for injunctive relief. Dotson contends the in-junctive relief was necessary to prevent the District from retaliating against him and reassigning him to a different school. The fact that the Commissioner did not have the authority to grant Dotson’s request for injunctive relief is not sufficient by itself, however, to place Dotson’s claims under the irreparable harm exception. Dotson must also show how the District’s alleged acts of retaliation would cause him irreparable harm for which a later award of damages would not provide adequate compensation. See Houston Fed’n of Teachers, Local 2115, 730 S.W.2d at 646; see also, Mitchison, 803 S.W.2d at 773.

The Commissioner of Education has the authority to reverse a decision of the school board, award back-pay, and reinstate a teacher to his former position. See Hartandole Indep. Sch. Dist. v. Rodriguez, 121 S.W.3d 88, 94 (Tex.App.-San Antonio 2003, no pet.). In general, a teacher’s claims of discrimination and breach of contract against a school district do not involve irreparable harm such that the aggrieved party may bypass these administrative remedies. See Gutierrez, 139 S.W.3d at 367. In this case, Dotson fails to show how the District’s alleged actions would cause him any harm other than economic harm for which a later award of damages would provide adequate compensation. Therefore, the irreparable harm exception is not applicable to his claims. See Mitchison, 803 S.W.2d at 773.

Dotson additionally argues the District’s actions violated his rights under Article I, section 27 of the Texas Constitution. Article I, section 27 grants citizens the right to “apply to those invested with the powers of government for redress of grievances or other purposes.” Tex. Const. Art. I, § 27. Dotson does not explain how the District’s alleged actions violated his constitutional right to seek redress. His claims against the District are solely for alleged breach of his employment contract.

Where the constitutional claims brought by a school employee are only “ancillary to and supportive of a complaint about the board’s handling of an employment contract or application of school law,” the employee must first exhaust the administrative process. See Jones v. Clarksville Indep. Sch. Dist., 46 S.W.3d 467, 474 (Tex.App.-Texarkana 2001, no pet.). In this case, Dotson’s constitutional complaints do not stand alone as an attack on the actions or policies of the District. His claim under Article I, section 27 is merely supportive of his breach of contract claim. Accordingly, the constitutional claim exception does not exempt Dotson from the requirement that he exhaust his administrative remedies.

Because none of the exceptions to the exhaustion of administrative remedies doctrine applies to Dotson’s claims in this case, Dotson was required to pursue his claims with the Commissioner of Education before filing suit in state court. We resolve Dotson’s sole issue against him. We affirm the trial court’s dismissal of this suit.


author: Justice MAZZANT.

text:
    DALLAS CENTRAL APPRAISAL DISTRICT and Appraisal Review Board of Dallas County, Texas, Appellants, v. Gregory Scott CUNNINGHAM, Appellee.
    No. 05-04-00803-CV.
    Court of Appeals of Texas, Dallas.
    April 29, 2005.
    Donald W. Hicks, Sr., Evelyn Conner Hicks, Law Offices of Donald W. Hicks, Sr., P.C., Dallas, TX, for Appellant.

      Timothy W. Sorenson, Dallas, TX, for Appellee.
    Before Justices BRIDGES, O’NEILL, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

Dallas Central Appraisal District (DCAD) and Appraisal Review Board of Dallas County, Texas (collectively appellants) appeal the trial court’s summary judgment granted in favor of homeowner Gregory Scott Cunningham. Appellants argue that because the market value of Cunningham’s property was not established as a matter of law and fact issues exist as to that value, the court erred in granting summary judgment. We agree and reverse the trial court’s judgment.

Background

The parties do not contest that Cunningham owns the property in question or that the prior year’s appraised value was $200,000.00. Instead, the parties disagree as to the application of the tax code 23.23 in determining the 2003 market value.

Cunningham received his notice of residential appraised value for 2003 in which DCAD stated it had appraised, per state law, the taxable property at its fair market value. According to the notice, the market value was, $374,330.00. The notice, however, referenced the “cap” provided for in the tax code and listed the “capped value” of Cunningham’s property to be $225,000.00. Also included on the notice were “taxable values” for 2002 and 2003 as well as the “homestead exemption” values for the various taxing jurisdictions. The notice further stated the “estimated levy” for the year would be $5,177 based on “the current year’s proposed value and last year’s tax rates.”

Cunningham completed the bottom portion of the notice as his “notice of protest for year 2003” and opined the property’s value was $220,000.00. Cunningham asserted his protest was due to the “constitutional cap on increase.”

The Appraisal Review Board conducted a hearing and issued its notice of final order stating the protest was denied and the appraisal records were correct; the correct value was $374,330.00. Cunningham appealed this decision to the trial court requesting the court to both fix “the value” of the property as of January 1, 2003 at $220,000.00 and compel “the imposition of the proper assessed value....” Cunningham also sought costs and attorney’s fees. Cunningham moved for summary judgment, stating the evidence established “without controversy” that appellants were precluded by section 23.23(a)(2) of the tax code from increasing the appraised value by more than 10%. Cunningham also requested the trial court to enter judgment “declaring the fair market value of the Property to be $220,000.00.” Cunningham attached the agreed judgment reflecting the 2002 value of the property and his affidavit in which he stated the cost of “the improvements [he] made to the Property between January 1, 2002 and January 1, 2003 was $0.00.” Cunningham provided no other evidence with his motion.

The trial court granted the summary judgment. It stated the appraised value was limited to $225,000.00. The court also stated the property had a “total market value of $225,000.00 on January 1, 2003.” This appeal followed in which appellants complain the trail court erred in adjudging the market value of the property.

STANDARD OP REVIEW

We review a summary judgment de novo to determine whether a party has established its right to summary judgment as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for a traditional summary judgment must show no material fact issue exists and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam).

Statutory interpretation presents a question of law that is also subject to de novo review. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997). We consider a statute as a whole rather than in isolated provisions, giving meaning in harmony and consistent with other provisions. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001).

Discussion

In his original petition, Cunningham requested the trial court to fix “the value” of the property at $220,000.00. Cunningham did not specify if he sought the trial court to address the appraised value, based on tax code section 23.23, or the market value, as discussed in tax code section 23.01. However, in his summary judgment, Cunningham requested the trial court to enter judgment “declaring the fair market value of the Property to be $220,000.00.” To obtain summary judgment, he was required to show he was entitled to the judgment as a matter of law. Appellants contend Cunningham failed to establish the market value of the property as a matter of law.

The trial court’s judgment states the appraised value of the property was limited under tax code section 23.23(a)(2). It stated that because of this limitation, the total market value of the property was $225,000.00. Appellants argue this reasoning was incorrect and insufficient to support summary judgment. We agree.

The tax code distinguishes between market value and appraised value in both the definitions and the explanation of determining appraisals. The tax code defines market value as a price the property would transfer for under prevailing conditions. Tex. Tax Code Ann. § 1.04(7) (Vernon 2001). Appraised value, on the other hand, is the value “determined as provided by Chapter 23 of this code.” Id. § 1.04(8).

Chapter 23 addresses methods and procedures for determining appraisals. The market value refers to the value at which all property is appraised as of January 1 each year. See id. § 23.01(a) (Vernon Supp.2004-05). To determine a property’s market value, “the appraisal district applies generally accepted appraisal methods and techniques.” Id. § 23.01(b). Chapter 23 defines three specific methods for determining a property’s market value: the cost, income, and market data comparison methods. Id. § 23.0101 (Vernon 2001).

In contrast, section 23.23 — the section Cunningham relied on for his summary judgment motion — does not address how to determine the market value. Instead, section 23.23 addresses the limit, or “cap,” on the appraised value of a residence homestead. Id. § 23.23(a) (Vernon Supp. 2004-05). Further, section 23.23 distinguishes between the amount calculated based on the limit to the appraised value — that amount under section 23.23(a)— and the market value; both values are to be included in the appraisal records. See id. § 23.23(b)

We conclude the market value is determined based on an assessment completed “by the application of generally accepted appraisal methods and techniques,” and it is not computed under section 23.23. Once the market value is determined, however, the appraisal district utilizes that number to determine if there is a limitation on the appraised value of a residence homestead by comparing it to the prior year’s appraised value. See id. § 23.23(a). If the new market value — as was determined using the “accepted appraisal methods and techniques” referenced in section 23.01(b) — is less than the sum of (1) the prior year’s appraised value; (2) 10% of last year’s appraised value; and (3) the value of any new improvements, then the market value will be used as the appraised value as the computed value under section 23.2.3(a). Under this circumstance, the two values (the market value and the section 23.23(a) appraised value) would thus be the same. However, if the market value is greater than the sum of (1) the prior year’s appraised value; (2) 10% of last year’s appraised value; and (3) the value of any new improvements, then the section 23.23(a) appraised value will be the sum of those three amounts. In this type of situation, the section 23.23(a) appraised value will be different from the market value.

Conclusion

Cunningham requested the trial court to establish the market value of the property because of the limitation to the appraised value under section 23.23(a)(2). However, we have concluded section 23.23 does not address the determination of the market value. Therefore, Cunningham did not establish as a matter of law that the market value was equal to the appraised value as limited under section 23.23(a) or subject to the limitations of section 23.23(a). Further, Cunningham’s request to declare the market value to be $220,000.00 is contrary to DCAD’s market value determination of $374,330.00. Therefore, a fact issue existed as to the market value of the property. Accordingly, we hold the trial court erred in granting summary judgment. See M.D. Anderson Hosp., 28 S.W.3d at 23. We resolve appellants’ sole issue in their favor.

We reverse the trial court’s judgment and remand for further proceedings.

      . The record contains an "Agreed Judgment” stating the property had "a total market value on January 1, 2002” of $200,000.00. During oral argument, DCAD stated it did not agree with this "Agreed Judgment.” This issue of the 2002 market value, however, is not germane to this appeal, and we make no determination as to the 2002 market value.

      . In his brief, Cunningham states that he "stipulated in the Trial Court that the total value of any improvements made to the Property during the year 2002, was that asserted by the Appellants, to wit: $5,000.00.” However, in his affidavit accompanying his summary judgment motion, Cunningham stated the value of the improvements was $0.00. The trial court concluded the appraised value of the property was $225,000.00, which appears to incorporate a value for improvements at $5,000.00. But Cunningham does not appeal the $225,000.00 figure; therefore, the value of the improvements is not before this Court in this appeal. We make no determination as to the value of the improvements.

      .The notice, however, did not identify the amount that was used as the "proposed value" in computing that estimated levy, nor did it define the term "proposed value” on the face of the notice.

      . During oral argument, Cunningham denied that he asked the trial court to change the market value of the property as was reflected in the original notice sent to Cunningham. He asserted he merely wanted the appraised value to be changed. However, the record shows the specific request in the summary judgment motion asking the trial court to enter judgment declaring the fair market value to be $220,000.00.

      . The trial court first stated the appraised value was limited under section 23.23(a)(2) of the tax code then stated "it is, therefore, ordered, adjudged and decreed that the house had a total market value of $225,000.00....” (Emphasis added.)

      . In section 1.04, the tax code defines “market value” as
      the price at which a property would transfer for cash or its equivalent under prevailing market conditions if:
      (A) exposed for sale in the open market with a reasonable time for the seller to find a purchaser;
      (B) both the seller and the purchaser know of all the uses and purposes to which the property is adapted and for which it is capable of being used and of the enforceable restrictions on its use; and
      (C) both the seller and purchaser seek to maximize their gains and neither is in a position to take advantage of the exigencies of the other.
      Tex Tax Code Ann. § 1.04(7).

      . Section 23.23(a) of the tax code states,
      (a) The appraised value of a residence homestead for a tax year may not exceed the lesser of:
      (1) the market value of the property; or
      (2) the sum of:
      (A) 10 percent of the appraised value of the property for the last year in which the property was appraised for taxation times the number of years since the property was last appraised;
      (B) the appraised value of the property for the last year in which the property was appraised; and
      (C) the market value of all new improvements to the property.

        Id. § 23.23(a).

      .Section 23.23(b) states,
      (b) When appraising a residence homestead, the chief appraiser shall:
      (1) appraise the property at its market value; and
      (2) include in the appraisal records both the market value of the property and the amount computed under Subsection (a)(2).

        Id. § 23.23(b)