author: PER CURIAM.

text:
    In re Francis W. WEIR, Lincoln Electric Company, Hobart Brothers Company, and the Boc Group, Inc.
    No. 09-05-116 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 1, 2005.
    Decided June 16, 2005.

      Thomas S. Rowatt, John G. Bissell, John W. Bridger, Strong Pipkin Bissell & Led-yard, LLP, David J. Beck, Eric J.R. Nichols, Russell S. Post, Constance H. Pfeiffer, Beck, Redden & Secrest, LLP, Houston, for relators.
    Glen W. Morgan, David Ferrell, Chris Portner, Reaud, Morgan & Quinn, Inc., Beaumont, for Appellee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

PER CURIAM.

The mandamus petition in this proceeding attacks an order compelling testimony. Relators, Lincoln Electric Company, Hobart Brothers Company, and the BOC Group, Inc., are defendants in a multiparty lawsuit. Relator, Francis W. Weir, was retained by Lincoln, Hobart, and BOC to offer expert testimony. The trial court ordered the expert witness to give deposition testimony regarding his litigation-related income for the years 2002, 2003, and 2004, and the percentage of the total income that is litigation-related. Relators request the order be set aside. We conditionally grant the petition for writ of mandamus.

Weir testified by deposition he has charged $450 an hour in this case, plus expenses, and he has worked 20-25 hours. He was questioned by plaintiffs about his consulting work outside of litigation, but he declined to answer. When asked what percentage of his income came from litigation in the last two years, Weir stated he could not answer because he does not subdivide his records by categories. He testified his accountant told him he has no records of the percentage of his income derived from litigation. When asked to reconstruct his sources of income for the last year, Weir testified as follows:

I believe that that falls within the purview of me and the IRS. And that is my position. And then I will tell you the— my knowledge of my income as it pertains to this case, my rate of income, and my understanding of what I can recollect from my work in litigation as it pertains to matters such as this. I don’t feel it’s either appropriate or anyone’s business, including my wife’s, what else I make.

The plaintiffs filed a motion to compel. Relators opposed the motion and presented Weir’s affidavit explaining he does not maintain his records in a manner that makes the requested information easily obtainable. Weir’s affidavit stated:

In addition, I cannot say with certainty how much time I would have to devote to such an effort. I can say it would be many, many hours, which seems to me unwarranted in light of the information I provided to counsel for Plaintiffs, namely, that I have testified almost exclusively for defendants, I charge $450 per hour, and I had devoted approximately 25 hours to the case, as of the date of the deposition.

Nevertheless, the trial court ordered defendants to produce Weir to testify regarding the percentage of his income that was received from litigation-related work during 2002, 2008, and 2004, and his total income received from litigation-related work for those years.' Relators contend the order exceeds the scope of permissible discovery and intrudes into constitutionally protected privacy interests.

The issue here involves the scope of permissible pretrial discovery. Proof of bias may be offered to impeach the credibility of a witness. Tex.R. Evid. 613(b). Rule 613(b) of the Texas Rules of Evidence further provides: “If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted.” Id. Generally, an expert witness may be questioned regarding payment received for his work as an expert witness. Russell v. Young, 452 S.W.2d 434, 436 (Tex.1970). However, pretrial discovery of all of a witness’s accounting and financial records, solely for the purpose of impeachment, may be denied. See generally Russell, 452 S.W.2d at 437. In Russell, the defendant contended a substantial portion of the plaintiffs expert’s income was received from attorneys or patients referred by attorneys, and the defendant sought to discover the expert’s accounting and financial records to prove those contentions. Id. at 436-37. The Supreme Court held the pretrial discovery sought only for impeachment purposes should not be allowed in that case. Id. at 437.

Similarly, the Supreme Court has expressed reluctance to permit uncontrolled and unnecessary discovery of federal income tax returns. See Hall v. Lawlis, 907 S.W.2d 493, 494-95 (Tex.1995) (Although income tax returns are discoverable when relevant and material to issues presented, the Court is reluctant “to allow uncontrolled and unnecessary discovery of federal income tax returns.”); see also Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex.1992). Protecting privacy rights requires scrupulous limitation of discovery to relevant and material information that promotes justice between the parties. Maresca v. Marks, 362 S.W.2d 299, 301 (Tex.1962). The trial court must limit the scope of discovery to protect against unreasonably cumulative or duplicative discovery, and to protect against unnecessary burden or expense. In re Sears, Roebuck & Co., 146 S.W.3d 328, 332 (Tex.App.-Beaumont 2004, orig. proceeding). The discovery rules provide access to material information, but the rules also provide effective means of curbing discovery to preserve litigation as a viable, affordable, and expeditious dispute resolution mechanism. See generally id. at 331.

The real parties in interest, plaintiffs, argue Rule 613(b) does not preclude the requested discovery because Weir has not unequivocally admitted a bias or interest. Tex.R. Evid. 613(b). Rule 613(b) is not a discovery rule, but the information sought under the discovery rules should be reasonably calculated to lead to the discovery of admissible evidence. See Tex.R. Civ. P. 192.3(a). Relators cite Olinger v. Curry, 926 S.W.2d 832 (Tex.App.-Fort Worth 1996, orig. proceeding), in support of their argument that the financial information is protected from discovery because Weir admitted he testifies almost exclusively for defendants. Relators also argue that compelling deposition testimony concerning the percentage and the total, of Weir’s litigation-related income in effect compels disclosure of his total income from all sources.

In Olinger, the appellate court did not permit discovery of an expert witness’s tax returns when the witness had admitted ninety percent of his services were provided to defendants in litigation. Id. at 834. The court reasoned in part as follows:

Subjecting an expert medical witness in a civil case to produce income tax returns merely to show that he is a “defense” doctor, particularly when he has admitted that 90% of his work is for defendants, would permit experts on either side of the case to be subjected to harassment and might well discourage reputable experts from accepting employment in other cases.

Id. at 835. The Olinger court held the trial court clearly abused its discretion in ordering the production of the expert’s tax returns in that case. Id. The court further held there was no adequate remedy by appeal and conditionally granted the petition for writ of mandamus. Id. at 836.

As in Olinger, privacy concerns are implicated by the discovery sought in this case. See Olinger, 926 S.W.2d at 834-35. The parties’ interests in obtaining discovery solely for impeachment must be weighed against the witness’s legitimate interest in protecting unrelated financial information. To provide the ordered deposition testimony, the witness must review all his financial records for three years, gather financial information, and calculate a total and a percentage. The order in effect requires the witness to testify regarding those calculations.

Discovery which is unnecessary or unreasonable does not serve the interest of either party in resolving their dispute. The scope of discovery cannot be unlimited if litigation is to be preserved as an affordable dispute resolution mechanism. See Explanatory Statement Accompanying the 1999 Amendments to the Rules of Civil Procedure Governing Discovery, Order of Approval of the Revisions to the Texas Rules of Civil Procedure, Misc. Docket No. 98-9196 (Tex. Nov. 9, 1998), printed at 61 Tex. Bar J. 1140 (Dec.1998); see also generally In re Sears, 146 S.W.3d at 331; Tex.R. Civ. P. 192.4. As explained in Ol-inger, reputable expert witnesses may be discouraged from accepting employment in any case if to do so would subject them to harassment through unnecessary, burdensome discovery of personal finances. Olinger, 926 S.W.2d at 835. Weir has disclosed his hourly rate, his time spent working on the case, and the fact he testifies almost exclusively for defendants. Though Weir may be required to provide an estimate, if he knows, of the percentage of his work that involves litigation, a second oral deposition seems unnecessary to obtain an answer to that question. The deposition ordered here would not materially benefit the dispute resolution process in this case in view of the information already available to the parties and the trial court concerning this expert -witness. See Tex.R. Civ. P. 192.4. The intrusion on the witness’s privacy interest, the burden in obtaining the information, and the impact on the willingness of reputable experts to provide testimony when needed in litigation outweigh any possible benefit from the additional discovery ordered. See id. Under the circumstances of this case, Weir should not be required to do what the Supreme Court held the defendant could not do itself in Russell: review all the expert’s unrelated financial records solely to obtain possible impeachment evidence. See Russell, 452 S.W.2d at 436-37.

A writ of mandamus is appropriate if the trial court abuses its discretion and there is no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court’s ruling that requires discovery beyond what the procedural rules permit is an abuse of discretion. In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004). If an appellate court cannot remedy a trial court’s discovery error on appeal, then an adequate appellate remedy does not exist. Id. Because the information sought to be protected would be disclosed before any appeal would be available, relators lack an adequate legal remedy. Olinger, 926 S.W.2d at 836. The petition for writ of mandamus is conditionally granted. The writ will issue only if the trial court does not vacate its order in accordance with this opinion.

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED.


source: Caselaw Access Project

author: CHARLES KREGER, Justice.

license: Public Domain

text:
    In re Regina PRESLEY.
    No. 09-05-118 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 20, 2005.
    Decided June 16, 2005.
    Ruby Bolton, Bolton & Bolton, Tomball, for relator.
    Aaron Presley, pro se, Montgomery, for real party in interest.
    Before GAULTNEY, KREGER, and HORTON, JJ.
   OPINION

CHARLES KREGER, Justice.

Relator, Regina Presley, requests this Court to issue a writ of mandamus directing The Honorable Suzanne Stovall, Judge of the 221st District Court of Montgomery County, Texas, to dismiss Cause No. 04-09-07870-CV, titled In the Matter of The Marriage of Aaron H. Presley and Regina Presley, because a proceeding concerning the same matters is currently pending in a court in Florida. Relator argues that the Montgomery County court is without jurisdiction to entertain this matter. Along with her petition for mandamus relief, relator moved the Court to stay all proceedings in the trial court pending our ruling on the mandamus action. We granted her motion, and on April 20, 2005, this Court stayed the proceedings and ordered the real party in interest, Aaron H. Presley, to file a response to relator’s petition. We now conditionally grant the writ.

In 2004, Aaron and Regina Presley moved from South Carolina to Florida. Regina claims the relocation occurred on February 25 and the record contains an application for public housing in Jacksonville, Florida, dated March 9. Aaron does not provide a specific date for the move but states a house was rented in Florida on March 21. On May 14, Aaron took the children to Magnolia, Texas. According to Regina, she did not learn her children’s whereabouts until September 1. Regina then filed suit in Duval County, Florida, on September 17. Aaron filed suit in Montgomery County, Texas, on September 28. The Texas court entered protective orders on October 7.

Regina filed a Plea in Abatement, which the Texas court denied. Regina then filed a Plea to the Jurisdiction, which was also denied. In her petition to this court, Regina asks we order the Texas court to vacate its order denying her plea to the jurisdiction, order the Texas court to grant her plea and dismiss the case for want of jurisdiction. Alternatively, Regina prays we direct the Texas court to refuse to exercise jurisdiction pursuant to Tex. Fam. Code Ann. § 152.208 (Vernon 2002), or contact the Florida court, as required by Tex. Fam.Code Ann. § 152.206 (Vernon 2002).

We first note that mandamus is appropriate when a Texas court has asserted jurisdiction over a child custody matter contrary to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Tex. Fam.Code Ann. §§ 152.101-.317 (Vernon 2002 & Supp. 2005). See In re McCoy, 52 S.W.3d 297, 301 (Tex.App.-Corpus Christi 2001, orig. proceeding) (and authorities cited therein). Under the UCCJEA, the Texas trial court is proscribed from exercising its jurisdiction (1) if “at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter....” Tex. Fam. Code Ann. § 152.206(a). The record reflects that when Aaron filed suit in Texas, a proceeding concerning custody had been commenced in Florida and the Florida court has jurisdiction consistent with the UCCJEA. It provides:

§ 152.201. Initial Child Custody Jurisdiction

(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in Subdivision (1), (2), or (3).

Tex. Fam.Code Ann. § 152.201(a) (Vernon 2002). When suit was filed, there was no “home state.” See Tex. Fam.Code Ann. § 152.102(7) (Vernon 2002). The children were only in Florida three months before Aaron took them to Texas. When Aaron filed suit in Texas, he and the children had lived in the state, at most, only four months. Therefore, neither Florida nor Texas was the home state. See also In re Oates, 104 S.W.3d 571, 577 (Tex.App.-El Paso 2003, orig. proceeding). While both states may have significant connection jurisdiction under section 152.201(a)(2), suit was filed first in Florida. Accordingly, section 152.206(a) controls and the Texas court could not exercise jurisdiction unless the Florida proceeding had been terminated or stayed by the Florida court because Texas is a more convenient forum. See Tex. Fam.Code Ann. § 152.206(a). The Texas court was required to stay its proceeding and communicate with the Florida court, and unless the Florida court determines the Texas court is a more appropriate forum, the Texas court is required to dismiss the proceeding. See Tex. Fam. Code Ann. § 152.206(b).

Citing In re Brilliant, 86 S.W.3d 680 (Tex.App.-El Paso 2002, orig. proceeding), Aaron contends the Texas court should decide whether it is appropriate for Texas to exercise jurisdiction on the basis of significant connections. Brilliant is inap-posite to the case at bar. As the court recognized, the Texas proceeding was filed first, when all parties resided in Texas, and therefore section 152.206 did not apply. Id. at 690. Here, the Florida proceeding was filed first, and “in a court ... having jurisdiction substantially in accordance with this chapter....” Tex. Fam. Code Ann. § 152.206(a), (b). Accordingly, the Texas court “may not exercise its jurisdiction” unless the Florida court determines Texas is a more convenient forum and stays its proceeding. Tex. Fam.Code Ann. § 152.206(a).

Regina argued to the Texas court in both the plea in abatement and plea to the jurisdiction that it should decline jurisdiction because Aaron had engaged in unjustifiable conduct. The UCCJEA mandates that the trial court shall decline jurisdiction when the party seeking to invoke jurisdiction has engaged in unjustifiable conduct. See In re S.L.P., 123 S.W.3d 685, 689 (Tex.App.-Fort Worth 2003, orig. proceeding) (citing Tex. Fam. Code Ann. § 152.208). The purpose of section 152.208 “is to ensure that when parents ‘act in a reprehensible manner, such as removing, secreting, retaining, or restraining the child,’ they will not receive an advantage for their unjustifiable conduct.” Id. (quoting Tex. Fam.Code Ann. § 152.208). As the court noted in Lewin, “[t]o allow a parent to deliberately secrete a child to Texas for the purpose of obtaining a child custody determination in the state would make a mockery of the statute.” In re Lewin, 149 S.W.3d 727, 740 (Tex.App.-Austin 2004, orig. proceeding) (citations omitted).

Regina identified two acts by Aaron: (1) his pleadings in the Texas court failed to apprise the court a proceeding had been commenced in Florida, and (2) he took the children without her knowledge or consent. The record reflects Regina’s first assertion is correct. As to the second, Aaron claims Regina knew the children were in Texas. Further, Aaron made allegations about Regina’s conduct in an apparent attempt to justify his conduct. The record before this court does not conclusively establish Regina’s version of events. We are therefore unable to say the Texas court abused its discretion in denying Regina’s pleas on that ground. Should further evidence be adduced that establishes Aaron’s conduct was unjustifiable, we presume the Texas court would act in accordance with the UCCJEA.

For the reasons set forth above, we conditionally grant relief. The writ of mandamus will issue only if the trial court does not stay its proceedings and communicate with the Florida court. All other relief requested by relator is denied.

WRIT CONDITIONALLY GRANTED.

      . Except as otherwise provided by section 152.204, which affords a court of this state temporary emergency jurisdiction in certain circumstances. See Tex. Fam.Code Ann. § 152.204 (Vernon 2002).

      . This does not operate to prohibit the exercise of the trial court’s temporary emergency jurisdiction pursuant to Tex. Fam.Code Ann. § 152.204 (Vernon 2002). See In Interest of M.G.M., 163 S.W.3d 191, 196-99 (Tex.App.Beaumont, 2005, no pet. h.).


author: RICHARD BARAJAS, Chief Justice.

text:
    In re BIG 8 FOOD STORES, LTD., Relator.
    No. 08-04-00255-CV.
    Court of Appeals of Texas, El Paso.
    June 16, 2005.
    Rehearing Overruled Aug. 3, 2005.

      Gary D. Sarles, Saiies & Ouimet, L.L.P., Dallas, M. Mitchell Moss, Scott, Hulse, Marshall, Feuile, Finger & Thurmond, P.C., El Paso, for Relator.
    Javier Espinoza, Scherr, Legate & Ehrlich, PLLC, El Paso, for Interested Party.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

Relator, Big 8 Food Stores, Ltd. (“Big 8”), asks this Court to issue a writ of mandamus against Respondent, the Honorable Javier Alvarez, Judge of the County Court at Law Number Three, El Paso County, Texas. For the reasons stated, we conditionally grant relief.

I. SUMMARY OF THE EVIDENCE

Real Party in Interest, Maria Marquez (“Marquez”) was an employee of Big 8, a non-subscriber under the Texas Workers’ Compensation Act. Marquez was injured while in the course and scope of her employment. She sued Big 8 for negligence. Big 8 moved to compel arbitration based on a written agreement signed by Marquez. Marquez denied that she had knowingly agreed to arbitration and argued that the arbitration agreement lacked consideration, that she was fraudulently induced into signing the agreement, that there was no meeting of the minds, and that Big 8 had failed to satisfy all the conditions precedent prior to seeking arbitration. After a hearing, the trial court denied Big 8’s motion to compel arbitration, without stating the grounds. Big 8 filed a motion to reconsider which was also denied. This original proceeding in mandamus follows. Real Party in Interest, Marquez, responded to the Petition for Writ of Mandamus, urging for the first time, that the Federal Arbitration Act does not apply to the controversy because the agreement does not substantially affect interstate commerce. She also contends that the agreement is unenforceable on the grounds of procedural unconscionability.

II. DISCUSSION

In two issues, Big 8 asserts that the trial court erred in failing to order to arbitration the negligence claims asserted by Marquez, and that the court should have upheld the arbitration agreement because Marquez had accepted benefits under the plan. We begin with a discussion of the standard of review.

A. Standard of Review

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding); In re Jobe Concrete Products, Inc., No. 08-02-00175-CV, 2003 WL 21757512,- at *1 (Tex.App.-El Paso July 31, 2003, orig. proceeding). Moreover, there must be no other adequate remedy at law. Walker, 827 S.W.2d at 840. An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding); In re Jobe Concrete Products, Inc., 2003 WL 21757512, at *1.

Mandamus is the proper meatos for reviewing an order denying arbitration under the Federal Arbitration Act. Cantella & Co. v. Goodwin, 924 S.W.2d 943, 945 (Tex.1996) (orig.proceeding); In re Jobe Concrete Products, Inc., 2003 WL 21757512, at *1. Federal and State law strongly favor arbitration. Cantella, 924 S.W.2d at 944; In re Jobe, 2003 WL 21757512, at *1. A presumption exists in favor of agreements to arbitrate unde| the"' FAA. Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex.1995); In re Jobe, 2003 WL 21757512, at *1. Courts must resolve any doubts about an agreement to arbitrate in favor of arbitration. Cantella, 924 S.W.2d at 944; Marshall, 909 S.W.2d at 899; In re Jobe, 2003 WL 21757512, at *1. Once a party seeking to compel arbitration establishes that an agreement exists under the FAA, and that the claims raised are within the scope of the agreement, a trial court has no discretion but to compel arbitration and stay its proceedings pending arbitration. Cantella, 924 S.W.2d at 944; In re Jobe, 2003 WL 21757512, at *1.

Arbitration is a creature of contract, and a clause requiring arbitration will be interpreted under contract principles. In re Jobe, 2003 WL 21757512, at *1; Belmont Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 357 (Tex.App.-Houston [1st Dist.] 1995, no writ). A party seeking to compel arbitration must establish its right to that remedy under the contract. In re Jobe, 2003 WL 21757512, at *1; Belmont, 896 S.W.2d at 857. A clause requiring arbitration will be enforced according to its plain meaning unless this would defeat the intention of the parties. In re Jobe, 2003 WL 21757512, at *1; Pope Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 930 (Tex.App.-Houston [1st Dist.] 1996, no writ). The parties’ agreement and intent to submit to arbitration must be unambiguous. In re Jobe, 2003 WL 21757512, at *1; Porter & Clements, L.L.P. v. Stone, 935 S.W.2d 217, 220 (Tex.App.-Houston [1st Dist.] 1996, orig. proceeding). Construction of an unambiguous contract is a question of law. In re Jobe, 2003 WL 21757512, at *1; see MCI Telecommunications Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999). Because the is .ie before us is the court’s legal interpreiation of the arbitration clause and die enfor bility of the employment _j-«Teement, v,j conclude that de novo re- . ' ' that finding is appropriate in this Lss Berrie and Co., Inc. v. Gantt, V-:., vV.2d 713, 716 (Tex.App.-El Paso C , no pet.), citing Certain Underwriters at Lloyd’s of London v. Celebrity, Inc., 950 S.W.2d 375, 377 (Tex.App.-Tyler 1996, writ dism’d w.o.j.). But see Dallas Cardiology Associates, P.A. v. Mallick, 978 S.W.2d 209, 212 (Tex.App.-Texarkana 1998, pet. denied); Pony Exp. Courier Corp. v. Morris, 921 S.W.2d 817, 819-20 (Tex.App.-San Antonio 1996, no writ); Pepe Int’l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 929 (Tex.App.-Houston [1st Dist.] 1996, no writ).

B. The Procedure to be Followed on a Motion to Compel Arbitration

In Jack B. Anglin Co. v. Tipps, the Texas Supreme Court set out the procedure to be followed when a motion to compel arbitration has been filed:

[T]he trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations. However, if the material facts necessary to determine the issue are controverted, by an opposing affidavit or otherwise admissible evidence, the trial court must conduct an evidentiary hearing to determine the disputed material facts.

Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992). In arriving at this procedure, the Texas Supreme Court drew from established summary judgment procedure. See id.; see also In re Jebbia, 26 S.W.3d 753, 756-57 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding) (“A summary motion to compel arbitration is essentially a motion for partial summary judgment, subject to the same evidentiary standards.”).

Our sister appellate courts have elaborated on the procedure set out in Tipps. See, e.g., Jebbia, 26 S.W.3d at 756-57; Weekley Homes, Inc. v. Jennings, 936 S.W.2d 16, 18-19 (Tex.App.-San Antonio 1996, writ denied); Prudential Sec. Inc. v. Banales, 860 S.W.2d 594, 597 (Tex.App.-Corpus Christi 1993, orig. proceeding). The Fourteenth Court of Appeals explained the correct procedure this way:

The party alleging an arbitration agreement must present complete summary proof of his “case in chief’ that an agreement to arbitrate requires arbitration of the issues in dispute. If that summary proof intrinsically raises issues about the procedural enforceability of the agreement, the movant’s summary proof should include any evidence that resolves those issues without creating an issue of material fact. Naturally, the non-movant, to resist summary arbitration, needs only to raise an issue of material fact about a necessary element of its opponent’s “case in chief’ or present some evidence supporting every element of a defensive claim that there is no enforceable agreement to arbitrate. If the movant has proven there is an arbitration agreement, as a matter of law, the court must compel arbitration, and a presumption arises that all disputed issues between the parties must be arbitrated. If issues of material fact remain about whether there is an enforceable agreement to arbitrate, the trial court must promptly allow the party claiming the right to arbitrate an eviden-tiary hearing on the matter.

Jebbia, 26 S.W.3d at 757 (citations omitted). We agree that this is the correct procedure for the trial court and the parties to follow in matters of this nature.

C. Establishing the Existence of an Arbitration Agreement

Public policy favors the submission of disputes to arbitration. In re Conseco Fin. Servicing Corp., 19 S.W.3d 562, 566 (Tex.App.-Waco 2000, orig. proceeding). But arbitration is also a creature of contract. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 537 (5th Cir.2003); Ysleta Indep. Sch. Dist. v. Godinez, 998 S.W.2d 700, 702 (Tex.App.-El Paso 1999, no pet.). Therefore, a party cannot be compelled to arbitrate a dispute unless he has agreed to do so. Lang, 321 F.3d at 537. A party seeking to compel arbitration must first establish that an arbitration agreement exists. Id. at 537; In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999); In re Anaheim Angels Baseball Club, Inc., 993 S.W.2d 875, 877 (Tex.App.-El Paso 1999, orig. proceeding). When we are called upon to decide whether the parties have agreed to arbitrate, we do not resolve doubts or indulge a presumption in favor of arbitration. Lang, 321 F.3d at 537-38; Jebbia, 26 S.W.3d at 757. Instead, we apply standard contract principles to determine whether a valid arbitration agreement exists. Lang, 321 F.3d at 538; Godinez, 998 S.W.2d at 702.

Under standard contract principles, the presence or absence of signatures on a written contract is relevant to determining whether the contract is binding on the parties. In re Bunzl USA, Inc., 155 S.W.3d 202, 209 (Tex.App.-El Paso 2004, orig proceeding). A party’s signature on a written contract is “strong evidence” that the party unconditionally assented to its terms. Id., citing 1 Arthur Linton Corbin, Corbin on Contracts § 2.10, at 168 (Joseph M. Perillo rev., 1993).

Texas law is also in acporci. with decisions applying the FAA. Although the FAA requires an arbitration agreement to be written, it does not expré&ly require the agreement to be signed by the parties. See 9 U.S.C. § 3 (1999); Valero Ref., Inc. v. M/T Lauberhorn, 813 F.2d 60, 63-64 (5th Cir.1987). Nevertheless, a parity seeking to enforce a purported arbitration agreement must establish that the parties agreed to arbitrate the dispute. Lang, 321 F.3d at 537. In the absence of signatures, other evidence has been held sufficient to establish the parties’ assent.

For example, in Valero, the court stated, “It is established that a party may be bound by an agreement to arbitrate even in the absence of his signature [and][o]rdi-nary contract principles determine who is bound by a written arbitration agreement.” 813 F.2d at 64. The court noted that the party attempting to avoid the arbitration agreement acknowledged in its pleadings that the agreement existed and that it had executed the agreement. That party’s counsel stated at a hearing before the trial judge that there were no problems with the agreement’s authenticity. Based on these facts, the appellate court held that there was sufficient evidence i» the record to uphold the trial court’s finding that the parties assented to the arbitration agreement. Id.

In the case before us, Marquez admits to signing the document, but contends that she was forced to sign it without understanding what she was signing. Further, after Marquez was injured on the job, she received and accepted the benefits of the agreement in the form of payments of her medical bills and expenses and short-term disability pavments

D. Application of the Law to the Facts of this Case

From the foregoing discussion of the law, it is clear that Big 8 had the burden in the trial court of establishing the existence of an agreement to arbitrate. Oakwood Mobile Homes, 987 S.W.2d at 573; Jebbia, 26 S.W.3d at 757. The undisputed factual evidence before the trial court reflects that Big 8 presented Marquez with an Employee Injury Benefit Plan which contained an Election and Arbitration Agreement. Marquez signed the copy of the agreement, which was translated into Spanish, on April 11, 2003 reflecting her agreement with the arbitration agreement. The document contains two witnesses signatures as well. Marquez admits that she signed the agreement but contends now that the agreement should not be enforced because she did not understand that she was waiving her right to a jury trial in the event of an on-the-job injury, and she was fraudulently induced into signing the agreement. Marquez agrees that she received medical bill coverage related to her on-the-job injury and did not have to pay any medical bills.

Big 8 presented evidence that Marquez was present during a benefits meeting when the benefits program was discussed. Big 8 presented evidence reflecting that Marquez was present for training on April 4, 2003 from 1:33 p.m. to 2:10 p.m. at the offices of Big 8 and that the meeting was translated into Spanish. Big 8 also presented evidence that Marquez was provided with a copy of the plan in Spanish and that she was allowed one week to review the plan and agree to its terms or not. The agreement included in the record reflects that Marquez signed the agreement on April 11, 2003 in Spanish. Marquez now contends 1⅛⅛ “the purported agreement was unenforceable on the grounds of procedural unconsciónability.” Marquez argues that this Court must determine that the agreement is unconscionable solely because Marquez nW contends that she did not understand thát she was agreeing to arbitra+e any clainns she might have related to an'on-the-joio injury. Upholding such a determination places an impossible burden on an employer and would allow an employee to, at any time, claim a lack of subjective understanding to the terms of an agreement, thus making it invalid and impossible to enforce. , ■

In determining whether a contract is unconscionable or not, the court must look to the entire atmosphere in which the agreement was made; the alternatives, if any, which were available to the parties at the time of the making of the contract; the non-bargaining ability of one party; whether the contract is illegal or against public policy; and, whether the contract is oppressive or unreasonable. At the same time, a party who knowingly enters a lawful but improvident contract is not entitled to protection by the courts. In the absence of any mistake, fraud, or oppression, the courts, as such, are! not interested in the wisdom or imprudence of contracts and agreements voluntarily entered into between parties compos mentis and sui juris. Such parties to contracts have the right to insert any stipulations that may be agreed to, provided they are neither unconscionable nor otherwise illegal or contrary to public policy. It has accordingly been said that, almost without limitation, what the parties agree upon is valid, the parties are bound by the agreement they have made, and the fact that a bargain is a hard one does not entitle a party to be relieved therefrom if he assumed it fairly and voluntarily. A contract is not unenforceable on the ground that it yields a return disproportionate to the expenditures in time and money, where there has been no mistake' or unfairness and the party against whom, it is sought to be enforced has receiv/sd and enjoyed the benefits. Marsh v. Marsh S.W.2d 734, 740 (Tex.App.Houston [14th Dist.] 1997, no pet.); Wad v. Austin 524 S.W.2d 79, 86 (Tex.Civ.App.Texarkana 1975, no writ).

One who signs a contract “must be held ti have known what words were used in che a», tract and to have known their nfeaiiing, and he must also be held to have known and fully comprehended the legal effect of the contract.” Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 146 (Tex.App.-Houston [1st Dist.] 1986, no writ). Illiteracy thus does not rett ve a contracting party of the consequences of his agreement. Id.; Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 3, 17 (Tex.App.-San Antonio 1998, no net.); Brown v. Aztec Rig Equip., Inc., 921 S.W.2d 835, 846 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Indeed, “jajbsent proof of mental incapacity, a person who rig- 1 a contract is presumed to have read and understood the contract, unless he w.; 3 prevented from doing so by trick or Rice.” Vera, 989 S.W.2d at 17.

No e whence suggests that Marquez lacked the mental capacity to contract. She argues that she was rushed to sign the agreement and did not understand its terms. The undisputed evidence is that eh? signed the agreement, was injured on the job and actually received and accepted benefits under the plan. The fact that she now contends that she did not understand a specific clause or term is immaterial to the validity of the agreement. See id. Accordingly, if the wy-eement is enforceable, Marquez ratjri 4 it by accepting and retaining its tential benefits. See Land Title Co. v. F.M. Stigler. Inc., 609 S.W.2d 754, 756-57 (Tex.1980); Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892, 895 (1960). In hort, Marquez, isbour-i in che. agreement.

E. Applicability of the FAA

We turn next to Marquez’s contention that the agreement is not within the scope of the FAA. The evidence presented to the court below establishes that the agreement clearly states that it is to be governed by Federal law under the FAA. Section 2 of the FAA provides:

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2 (1999).

“[T]he creation of an employment relationship which involves commerce is a sufficient ‘transaction’ to fall within section 2 of the Act.” White-Weld & Co. v. Mosser, 587 S.W.2d 485, 487 (Tex.Civ.App.-Dallas 1979, writ ref d n.r.e.), citing Dickstein v. du Pont, 443 F.2d 783, 785 (1st Cir.1971). If Marquez’s employment relationship involves “commerce” within the meaning of section 2, then the FAA governs the arbitration agreement.

We agree with our sister court in Austin that “commerce” under the FAA must be broadly construed. Lost Creek Municipal Util. District v. Travis Indus. Painters, 827 S.W.2d 103, 105 (Tex.App.Austin 1992, writ denied). If the transaction at issue relates to interstate commerce, the FAA is implicated. Id. Because Congress intended that the FAA govern arbitration agreements within the reach of the Commerce Clause, we construe “commerce” as coextensive with congressional authority to regulate under the Commerce Clause. See Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 2525-26, 96 L.Ed.2d 426 (1987); Prima Paint v. Flood & Conklin Mfg. Co., 388 U.S. 395, 401 n. 7, 87 S.Ct. 1801, 1805 n. 7, 18 L.Ed.2d 1270 (1967); Foster v. Turley, 808 F.2d 38, 40 (10th Cir.1986).

“No commercial enterprise of any kind which conducts its activities across state lines has been held to be wholly beyond the regulatory power of Congress under the Commerce Clause.” United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 553, 64 S.Ct. 1162, 1173, 88 L.Ed. 1440 (1944). Verlander Family Ltd. Partnership v. Verlander, No. 08-02-00135-CV, 2003 WL 304098, at *2-3 (Tex.App.-El Paso February 13, 2003, no pet.). Because Big 8’s business operations fall within the scope of Congress’s regulatory power under the Commerce Clause, Big 8’s relationship with its employees involves “commerce” as that term is used in the FAA. It follows that Marquez’s relationship with Big 8 involves commerce within the meaning of the FAA; the arbitration agreement therefore is enforceable under the federal statute.

The FAA applies to all suits in state or federal court when the dispute concerns a contract evidencing a transaction involving “commerce.” Tipps, 842 S.W.2d at 269-70; Verlander Family Ltd. Partnership, 2003 WL 304098, at *3; In re Gardner Zemke Company, 978 S.W.2d 624, 626 (Tex.App.-El Paso 1998, orig. proceeding). “Commerce” is broadly construed and encompasses contracts relating to interstate commerce. Verlander Family Ltd. Partnership, 2003 WL 304098, at *3; Gardner Zemke, 978 S.W.2d at 626. The issue is not whether the parties’ dispute affects interstate commerce, but whether their dispute concerns a transaction that affects interstate commerce. Verlander Family Ltd. Partnership, 2003 WL 304098, at *3; see Tipps, 842 S.W.2d at 272; In re Education Management Corp., 14 S.W.3d 418, 423 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding). The FAA does not require a substantial effect on interstate commerce; rather, it requires only that commerce be involved or affected. In re L & L Kempwood Assoc., L.P., 9 S.W.3d 125, 127 (Tex.1999) (orig.proceeding); Verlander Family Ltd. Partnership, 2003 WL 304098, at *3. The existence of interstate commerce may 1½ shown in a variety of ways: locación 'of headquarters in another state; transportation of materials across state lines; manufacture of parts in a different state; b:Slings prepared out of state; interstate r > 1 and telephone calls in support of í c , - tract. Verlander Family Ltd. Partnership, 2003 WL 304098, at *3; In re Profanchik, 31 S.W.3d 381, 384-385 (Tex.App.Corpus Christi 2000, orig. proceeding), citing Tipps, 842 S.W.2d at 270.

The Big 8 benefit plan provides that the agreement is governed by the FAA and includes a specific recitation that establishes that the company is engaged in interstate commerce. As discussed previously, the United States Supreme Court and Texas courts have held that an express agreement to be governed by the FAA is controlling and further, the agreement’s involvement with inces otate commerce may be shown in a variety of ways. See In re Profanchik, 31 S.W.2d at 384-85. This express agreement f ■" be governed by the FAA is valid regardless of where the goods in question originate or how such goods may be moved through commerce. The company indicates that it is involved in “purchasing goods and services from outside Texas which are shipped to Texas; utilizing the interstate mail, telephone and highway systems; operating facilities serving people from various states; and recruiting and advertising outside Texas.” There is no evidence to the contrary other than Marquez’s argument contained in her response that the FAA should not apply to the agreement because it involves a question of cl aim a related to the activities of a part-time worker. We agree that the relationship between an employer who is regularly engaged in activities related to interstate commerce and its employees is affected by interstate commerce as a matter of law add implicates commerce clause issues. See Mosser, 587 S.W.2d at 487.

Because we have found that the arbitration clause is valid and binding on the parties, we sustain Relator’s Issue Nos. C.^e and Two. Finding also that Relator has no adequate remedy by appeal, we conditionally grant the petition for writ of mandamus. We are confident the trial court will grant the relief to which Relator is entitled under the Federal Arbitration Act and this opinion. We direct the Clerk of this Court to issue the writ only in the event the trial court does not do so..


author: Justice MAZZANT.

text:
    MY-TECH, INC., Appellant, v. UNIVERSITY OF NORTH TEXAS HEALTH SCIENCE CENTER AT FORT WORTH, Slobodan Dan Dimitrijevich, and Peter Raven, Appellees.
    No. 05-04-01150-CV.
    Court of Appeals of Texas, Dallas.
    June 22, 2005.

      Shannon Jamison, Aubrey D. Pittman, The Pittman Law Firm, P.C., Dallas, for appellant.
    Kimberley S. Ellars, Office of the Attorney General, Financial Litigation Division, Austin, for appellees.
    Before Justices MORRIS, LANG, and MAZZANT.
   OPINION

Opinion by

Justice MAZZANT.

My-Tech, Inc. appeals the trial court’s order sustaining the plea to the jurisdiction filed by University of North Texas Health Science Center at Fort Worth and Slobodan Dan Dimitrijevich and Peter Raven in their official capacities (collectively UNTHSC). My-Tech offers four arguments that UNTHSC waived sovereign immunity: (1) by its conduct; (2) by seeking affirmative relief against My-Tech; (3) because UNTHSC’s actions constituted an unconstitutional taking; and (4) because My-Tech sought a declaratory-judgment. For the reasons that follow, we reject My-Tech’s arguments and affirm the trial court’s order.

Factual Background

In November 1997, My-Tech and UNTHSC entered into a contract involving blood vessel construction research. During the performance of the contract, My-Tech alleged that UNTHSC failed to abide by the terms because it assigned credit for an invention to another company. My-Tech subsequently filed suit against UNTHSC seeking a declaratory judgment and damages for breach of contract, negligence, and fraud. UNTHSC filed a plea to the jurisdiction and asserted that it had not waived sovereign immunity. The trial court agreed with UNTHSC and granted the plea to the jurisdiction. This appeal ensued.

SOVEREIGN Immunity

UNTHSC is a state institution and thus benefits from the doctrine of sovereign immunity. “[S]overeign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages, absent legislative consent to sue the State.” Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997). The doctrine is comprised of two distinct concepts: (1) immunity from suit (barring a lawsuit unless the legislature expressly gives its consent to suit) and (2) immunity from liability (protection from judgments even if the legislature has expressly given its consent to the suit). See id.; see also Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002).

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea by which a party challenges a trial court’s authority to determine the subject matter of an action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). Subject matter jurisdiction is a question of law subject to de novo review. IT-Davy, 74 S.W.3d at 855. In performing this review, we do not look to the merits of the plaintiffs case but consider only the pleadings and evidence relevant to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

Waiver by Conduct

In its first issue My-Tech argues that UNTHSC waived sovereign immunity by its conduct. Among other things, My-Tech argues that UNTHSC misused funds that My-Tech provided for UNTHSC, refused to provide intellectual rights that My-Tech argues it paid for, and wrongfully assigned research to other companies.

My-Tech initially relies on a Texas Supreme Court footnote in Federal Sign and a concurring opinion in the same case. The identified footnote from Federal Sign discusses the scope of the majority’s opinion, which concluded that Texas Southern University had not waived its immunity. The footnote states, “There may be other circumstances where the State may waive its immunity by conduct other than simply executing a contract so that it is not always immune from suit when it contracts.” Fed. Sign, 951 S.W.2d at 408 n. 1. Subsequently, the supreme court has noted that several appellate courts have relied on that language to create a “judicially-imposed, equitable waiver of immunity from suit by conduct.” IT-Davy, 74 S.W.3d at 856. However, the supreme court later discussed the footnote and reaffirmed “that it is the legislature’s sole province to waive or abrogate sovereign immunity.” See id. at 857 (“Creating a waiver-by-conduct exception would force the State to expend its resources to litigate the waiver-by-conduct issue before enjoying sovereign immunity’s protections and this would defeat many of the doctrine’s underlying policies.”).

My-Tech next directs this Court to a more recfent supreme court case, Catalina Development Inc. v. County of El Paso, 121 S.W.3d 704 (Tex.2003). My-Tech argues the supreme court stated that Federal Sign still stands for the proposition that “some circumstance might warrant recognizing a waiver by conduct.” My-Tech cited the quoted language from Catalina, but My-Tech quotes only part of the language in a sentence. See id. at 706. In reviewing the complete sentence in Catalina and the surrounding text, we do not interpret Catalina as actually creating a waiver-by-conduct exception. The complete sentence reads: “Although in Federal Sign we suggested that some circumstances might warrant .recognizing a waiver by conduct, the equitable basis for such a waiver simply does not exist under this set of facts.” Accordingly, we conclude the supreme court was merely acknowledging its Federal Sign footnote and not creating a waiver-by-conduct exception.

My-Tech relies on the Federal Sign footnote and urges this Court to fashion a waiver-by-conduct exception. The supreme court has not provided such an exception, and we decline to create one in this case. We instead follow the supreme court precedence that it is the legislature’s sole province to waive sovereign immunity. See, e. g., Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (“It is not the function of a court of appeals to abrogate or modify established precedent.”). We resolve My-Tech’s first issue against it.

WaiveR by Seeking Affirmative Relief

In its second issue, My-Tech argues that UNTHSC waived its sovereign immunity by seeking affirmative relief in its second amended answer. We disagree.

A governmental entity may waive immunity from suit by filing a suit for damages. Reata Const. Carp. v. City of Dallas, No. 02-1031, 2004 WL 726906, at *3, — S.W.3d-,-(Tex. Apr. 2, 2004) (motion for rehearing granted Oct. 15, 2004). This Court extends that rule to find that counterclaims filed by the State waive immunity. City of Dallas v. Bargman, No. 05-04-00316-CV, 2004 WL 2222510, at *4,-S.W.3d-,-(Tex. App.-Dallas 2004, no pet.); City of Irving v. Inform Constr., Inc., 143 S.W.3d 371, 374 (Tex.App.-Dallas 2004, pet filed.). However, an affirmative defense is distinguishable from a counterclaim.

To determine whether a defendant’s answer asserts a counterclaim or an affirmative defense, courts should analyze the facts alleged. Flukinger v. Straughan, 795 S.W.2d 779, 787 (Tex.App.-Houston [14th Dist.] 1990, writ denied). We ask whether the defendant could have maintained the claim as an independent suit. See id. However, to determine if a defendant’s prayer for general relief is a counterclaim or an affirmative defense, we look at the general purpose of the pleadings. Thomason v. Sherrill, 118 Tex. 44, 45, 10 S.W.2d 687, 687 (1928). If there is no prayer for affirmative relief, matters that are pleaded defensively do not present a counterclaim. See id.

My-Tech contends that UNTHSC sought affirmative relief by pleading that My-Tech owed it $176,244.13 under the contract and praying for general relief from the trial court. UNTHSC, in its answer — without waiving and subject to its immunity argument — pleaded the affirmative defense of failure to perform. UNTHSC stated My-Tech owed UNTHSC funds under the contract, and because My-Tech had not paid, it had failed to prove it performed. UNTHSC did not however, request the unpaid amount as damages owed to it.

Although UNTHSC could have brought a claim seeking damages for the alleged unpaid amount, it did not make a claim for that money in its answer. The purpose of the discussion of the alleged unpaid amount was merely defensive. UNTHSC did not seek any affirmative relief. Accordingly, we conclude UNTHSC’s answer did not assert a counterclaim. And My-Tech does not argue that an affirmative defense waives immunity. We resolve My-Tech’s second issue against it.

Unconstitutional Taking

In its third issue, My-Tech argues that sovereign immunity does not bar its constitutional takings claim against UNTHSC. However, this claim was not pleaded at the trial court level. Because this was not raised as a claim below, this argument reaches beyond our review on appeal. See Benefit Trust Life Ins. Co. v. Littles, 869 S.W.2d 453, 468 (Tex.App.-San Antonio 1993), vacated for settlement, 873 S.W.2d 704 (1994); see also Mitchell v. Bank of America, N.A., 156 S.W.3d 622, 629-30 (Tex.App.-Dallas 2004, pet. denied). We resolve My-Tech’s third issue against it.

Waiver by the Declaratory Judgment Act

In its fourth issue, My-Tech argues that sovereign immunity does not preclude their declaratory judgment claim. We disagree.

The Uniform Declaratory Judgment Act provides that a person may seek declaratory relief by asking the court to determine its rights, status, and obligations under a contract. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 1997). The supreme court has found immunity to be waived under the Act when attorney’s fees are sought in suits to construe legislative pronouncements. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994). However, as the supreme court stated in IT-Davy, that waiver does not allow private parties to sue the State for money damages. 74 S.W.3d at 860.

IT-Davy involved both a breach-of-contract claim and a declaratory judgment claim. IT-Davy asked the trial court to declare that it had performed additional work and incurred additional expenses beyond its contract’s scope, and thus, the State owed it more money. Id. at 859. The supreme court concluded that the claim under the Act was merely a tactic to confer jurisdiction on the trial court to decide the breach-of-contract claim. The court concluded this request did not waive the State’s immunity. Id.

Similarly here, My-Tech’s claim requested the trial court to declare: (1) UNTHSC’s obligations, (2) My-Tech’s right, title, and interest to the developed technology, and (3) UNTHSC’s preclusions regarding the technology developed under the agreement. These are rights and obligations that are enumerated as terms in the contract—the same contract My-Tech has alleged was breached. Akin to IT-Davy’s claim, My-Tech’s claim seeking dual relief would circumvent the doctrine of sovereign immunity by conferring jurisdiction for its main breach-of-contract claim. This is not allowed. See IT-Davy, 74 S.W.3d at 859. We resolve My-Tech’s fourth issue against it.

We affirm the trial court’s order.

      . My-Tech’s petition named Dimitrijevich and Raven in their individual and official capacities. The trial court’s order granting the plea to the jurisdiction dismissed the claims as to Dimitrijevich and Raven in their official capacities only. Our opinion is likewise limited.

      . Additionally, in 1999 the legislature enacted an administrative process to resolve breach-of-contract claims against the State, but this option is not applicable to contracts executed or awarded on or before August 30, 1999. See IT-Davy, 74 S.W.3d at 853.

      . My-Tech, however, seeming to disregard the IT-Davy language rejecting a waiver-by-conduct possibility, cited only the concurring opinion from that case. See IT-Davy, 74 S.W.3d at 861 (Hecht, J., concurring).


author: BILL VANCE, Justice.

text:
    AMERICAN HOUSING FOUNDATION and College Station Texas Southgate Village, Ltd., Appellants, v. BRAZOS COUNTY APPRAISAL DISTRICT, Appellee.
    No. 10-04-00149-CV.
    Court of Appeals of Texas, Waco.
    June 22, 2005.
    Rehearing Overruled July 19, 2005.

      Christopher L. Jensen, John Ben Blanchard, Andrew G. Little, Sprouse Shrader Smith PC, Amarillo, for appellants.
    Jon Miller, Rodgers Miller McLain, Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Appellants, American Housing Foundation (“AHF”) and College Station Texas Southgate Village, Ltd. (“Southgate Village, Ltd.”) appeal from the trial court’s summary judgment in favor of Appellee, the Brazos County Appraisal District (“Appraisal District”). AHF and South-gate Village, Ltd. appeal in two issues:

(1) Does Texas Tax Code section 11.182(e) allow an entity that is not the record owner of the property in question to claim the tax exemption created by that statute?
(2) Does Texas Tax Code section 11.182(e) allow an exemption for structures built prior to December 31, 2001?

We decline to answer the first question because the answer to the second is “no”; thus we will affirm the summary judgment.

BACKGROUND

AHF is a non-profit Texas corporation and a Community Housing Development Organization (“CHDO”) that provides acceptable housing to low and moderate income individuals. Southgate Village Apartments, originally constructed well before 2001, are low to very-low income housing apartments in Brazos County. Southgate Village, Ltd., a Texas limited partnership and for-profit organization, owns the apartments. AHF Southgate Village, Inc. (“AHF Southgate”), a Texas corporation, is the sole general partner of Southgate Village, Ltd. AHF Southgate is a wholly-owned subsidiary of AHF.

AHF applied for a year 2002 property tax exemption for the apartments under Texas Tax Code section 11.182. Tex. Tax Code Ann. § 11.182 (Vernon Supp.2004-05). The Brazos County Chief Appraiser determined that (1) AHF was not the legal owner of the property as required by section 11.182(b) because deeded ownership appeared to be vested in Southgate Village, Ltd.; (2) Section 11.182(e) applied only to property constructed after December 31, 2001; and (3) AHF allegedly failed to supply the appropriate audit to the Appraisal District. AHF protested the denial of the tax exemption, and the Appraisal Review Board denied AHF’s appeal. In 2003, AHF applied for a year 2003 property tax exemption. The Appraiser determined that (1) AHF was not the legal owner of the property as required by section 11.182(b) because deeded ownership appeared to be vested in Southgate Village, Ltd.; and (2) Section 11.182(e) applied only to property constructed after December 31, 2001. AHF protested the denial of the tax exemption, and the Appraisal Review Board denied AHF’s appeal.

In 2002, AHF and Southgate Village, Ltd. sued the Appraisal District seeking review of the 2002 tax exemption denial. The petition was later amended to include the denial of the 2003 tax exemption. The Appraisal District filed a motion for summary judgment, and AHF and Southgate Village, Ltd. filed a competing motion for summary judgment. The trial court granted the Appraisal District’s motion and denied AHF’s and Southgate Village, Ltd.’s motion.

SUMMARY JUDGMENT

Standard of Review

We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A, 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.-Waco 2001, pet. denied).

When competing motions for summary judgment are filed and one is granted and one denied, the appellate court should determine all questions presented and should render the judgment the trial court should have rendered. FM Properties Operating v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000); Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). But this is so only if, as here, both parties’ motions sought final judgment, ie., relief on all issues. Montgomery v. Blue Cross & Blue Shield, 923 S.W.2d 147,152 (Tex.App.-Austin 1996, writ denied); Runyan v. Mullins, 864 S.W.2d 785, 790 (Tex.App.-Fort Worth 1993, writ denied).

Rules of Statutory Construction

The propriety of this summary judgment turns on the construction of section 11.182 of the Tax Code. Tex. Tax Code Ann. § 11.182. Statutory construction issues are legal questions reviewed de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). In construing a statute, the reviewing court should determine and give effect to the Legislature’s intent. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000); Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). The court must first look at the statute’s plain and common meaning. Allen, 15 S.W.3d at 527; Fitzgerald v. Advanced Spine Fixation, 996 S.W.2d 864, 865 (Tex.1999). The court presumes that the Legislature intended the plain meaning of the words it used. Allen, 15 S.W.3d at 527. And words, unless used as a term of art or connected with a particular trade or subject matter, are given their ordinary meaning. In re BACALA, 982 S.W.2d 371, 380 (Tex.1998); Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). If the statute is unambiguous, the reviewing court typically adopts the interpretation supported by the plain meaning of the statute’s words; rules of construction and extrinsic aids should not be applied, nor extraneous matters inquired into. Allen, 15 S.W.3d at 527 (extraneous matters); Fitzgerald, 996 S.W.2d at 865-66 (rules of construction and extrinsic aids).

Section 11.182

The statute at issue is section 11.182, subsections (b) and (e):

(b) An organization is entitled to an exemption from taxation of improved or unimproved real property it owns if the organization:
(1) is organized as a community housing development organization;
(2) meets the requirements of a charitable organization provided by Sections 11.18(e) and (f);
(3) owns the property for the purpose of building or repairing housing on the property to sell without profit to a low-income or moderate-income individual or family satisfying the organization’s eligibility requirements or to rent without profit to such an individual or family; and
(4) engages exclusively in the building, repair, and sale or rental of housing as described by Subdivision (3)and related activities.
(e) In addition to meeting the applicable- requirements of Subsections (b) and (c), to receive an exemption under Subsection (b) for improved real property that includes a housing project constructed after December 31, 2001, and financed with qualified 501(c)(3) bonds issued under Section 145 of the Internal Revenue Code of 1986, tax-exempt private activity bonds subject to volume cap, or low-income housing tax credits, the organization must:
(1) control 100 percent of the interest in the general partner if the project is owned by a limited partnership;
(2) ...
(3) ...

Tex. Tax Code Ann. § 11.182(b), (e) (emphasis added).

Analysis

The parties agree that the Legislature intended some change by the addition of subsection (e) in 2001. AHF and South-gate Village, Ltd. argue that because AHF controls 100 percent of the general partner of the limited partnership that owns the apartments, as allowed by subsection (e), it is entitled to the tax exemption. The Appraisal District argues that AHF is not entitled to the exemption because subsection (e) applies only to housing projects constructed after December 31, 2001, which would apply for tax years after subsection (e) was added.

The words “in addition to” have a plain meaning of “combined or associated with” or “besides.” See Allen, 15 S.W.3d at 527; MeRRIAm Webster’s Collegiate DICTIONARY 13 (10th ed.1993). Nevertheless, we find that the summary judgment evidence shows: (1) AHF was not entitled to the exemption under subsection (b) because it did not own the housing project; (2) Southgate Village was not entitled to the exemption under subsection (b) because it was not a CHDO; and (3) subsection (e) did not create an entitlement to the exemption because the property in question owned by Southgate Village (which admittedly is a limited partnership whose general partner is controlled 100% by AHF) was not a housing project “constructed” after December 31, 2001.

CONCLUSION

Tax Code Section 11.182(e) applies only to housing projects constructed after December 31, 2001. We affirm the summary judgment.

      . The parties have no dispute about the applicability of subsection (c).

      . Thus, subsection (e) on its face requires compliance with subsections (b) and (c). The parties appear to believe that the Legislature intended to say "in lieu of the requirements of (b) and (c).” We express no opinion on the effect to be given to the words “in addition to.”

      . We do not reach the Appraisal District’s contention that there is no evidence that Southgate Village used one of the three types of financing required under subsection (e).


text:
    Eduardo LERMA, Appellant, v. Stewart FORBES, Appellee.
    No. 08-03-00310-CV.
    Court of Appeals of Texas, El Paso.
    June 23, 2005.
    Rehearing Overruled July 27, 2005.

      Eduardo N. Lerma, El Paso, pro se.
    Stewart W. Forbes, Forbes & Forbes, ElPaso, pro se.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, J., and HILL, C.J. (Retired, sitting by assignment).
   OPINION

RICHARD BARAJAS, Chief Justice.

Appellant, Eduardo Lerma, pro se, appeals from the trial court’s entry of a judgment in favor of Appellee, Stewart Forbes, pro se, on a Motion for Summary Judgment filed by Appellee in post-judgment proceedings. Appellant contends that the trial court had lost its plenary power jurisdiction over the case and was, therefore, incapable of rendering a summary judgment in favor of Appellee. Both parties are licensed attorneys in the state of Texas and have been involved in a drawn out and acrimonious battle over money allegedly owed by Appellant to Ap-pellee as a result of legal representation provided by Appellee. Appellant characterizes this matter as a fee dispute case and Appellee insists that the case is a sworn account case. For the purpose of disposition of this appeal, the underlying characterization of the dispute is irrelevant. Appellant raises one issue on appeal. For the reasons stated below, we affirm the judgment of the trial court.

I. BACKGROUND

A portion of the record in the underlying case has been permanently sealed pursuant to Tex.R.Civ.P. 76a. It is necessary to briefly state the procedural context of the case, but our recitation of the facts will therefore be kept to a minimum. Landmark Organization, L.P. sued Appellant’s brother, Roberto Lerma. Appellant, along with other attorneys, represented Roberto in the suit. After the case concluded, Appellant filed a petition in intervention because Roberto refused to pay the attorney’s fees Roberto owed Appellant. Appellant hired Stewart Forbes to represent him in the arbitration of the dispute. The visiting judge assigned to hear the attorney’s fee dispute severed Appellant’s petition in intervention from cause number 2000-2579 and re-numbered the suit as cause number 2000-2579AF.

Arbitration took place in February 2002 and on March 12, 2002, the arbitrator granted Forbes’s motion to withdraw. The arbitrator then entered a written arbitration award on March 29, 2002, and awarded Appellant $60,000 plus attorney’s fees and expenses in the amount of $47,795.65. On June 13, 2002, the visiting judge entered judgment in accordance with the arbitration award. With the aid of a writ of garnishment, Appellant collected $55,000 on the judgment, but ironically, he refused to pay Forbes his attorney’s fees. Consequently, Forbes filed a petition in intervention on January 31, 2008. Stating a suit on sworn account, breach of contract, equitable assignment, and constructive trust claims, Forbes alleged that his attorney’s fees and expenses incurred in connection with the arbitration were $47,795.65 and that the arbitrator had awarded this sum to Appellant for Forbes’s attorney’s fees and expenses. Appellant had paid Forbes $21,000 on the balance owed but refused to pay the balance owed him.

Forbes filed a motion for summary judgment on February 26, 2003. The Honorable Linda Chew, Judge of the 327th District Court, entered an order generally granting summary judgment on June 9, 2003, but she did not rule on several pending motions, including Appellant’s motion to strike the petition in intervention and Forbes’s objections to Appellant’s late-filed pleadings and summary judgment response. The June 6 order did contain a Mother Hubbard clause. Appellant filed a premature notice of appeal which this Court docketed as cause number 08-03-00310-CV. Forbes filed a motion to sever his claim against Appellant from the main case and enter judgment. Additionally, he requested that the trial court specifically rule on his objections to the late-filed pleadings and summary judgment responses as well as the other pending motions. Appellant also filed a motion asking the trial court to rule on his motion to strike the petition in intervention. On August 13, 2003, the trial court signed orders sustaining Forbes’s objections to Appellant’s summary judgment responses, severing Forbes’s cause of action from cause numbers 2000-2579 and 2000-2579AF, striking Appellant’s late-filed pleadings, and denying the motion to strike the plea in intervention. On this same date, the trial court entered a final judgment awarding Forbes $26,796.65 as the final amount due plus pre-judgment and post-judgment interest. Appellant timely filed a motion for new trial and later filed notice of appeal on November 24, 2003. We initially filed the second notice of appeal in cause number 08-03-00310-CV as an amended notice of appeal but Appellant complained, insisting that it should be docketed as a separate appeal because it involved a second judgment in the same cause number. Accordingly, we filed it in a separate appeal and assigned it cause number 08-03-00510-CV.

Appellant filed a petition seeking mandamus relief on December 15, 2003 asking this Court to order the trial court to vacate or set aside the order denying Appellant’s motion to strike intervention and to set aside the final summary judgment granted in favor of Stewart Forbes. On May 13, 2004, we ruled that Appellant had an adequate remedy by direct appeal and denied the mandamus relief.

II. ISSUE ON REVIEW

Appellant has asserted one issue on review, complaining that'“[t]he trial court’s plenary jurisdiction had expired, such that Judge Linda Y. Chew clearly erred in allowing Forbes to intervene, granting summary judgment and then entering a second order granting summary judgment and severing the case.” We read this issue as a complaint that the trial court abused its discretion in allowing the post-judgment intervention and subsequent entry of summary judgment in favor of Ap-pellee. We note for the record that while the issue as worded appears to challenge the trial court’s granting of summary judgment in favor of Appellee and severance of the case, we observe that the complaint on the merits of the granting of the summary judgment is not briefed nor argued. Appellant’s brief only challenges the plenary jurisdiction of the trial court and does not challenge the substantive granting of the summary judgment. Because that issue is not briefed nor argued, we consider it waived and do not address it.

The brief “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief.” Tex.R.App. P. 38.1(g). Rule 38 requires Appellant to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex.App.Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such attenuated, unsupported argument, Appellant waives his complaints. We do not, therefore, address that implied issue.

Turning to Appellant’s issue that the expiration of the court’s plenary jurisdiction prohibits the filing of the plea in intervention by Appellee, we note that we review the actions of the trial court for an abuse of discretion.

Intervention is permitted as a matter of right, “subject to being stricken out by the court for sufficient cause on the motion of any party.” Tex.R. Civ. P. 60. Review of a trial court’s order on a motion to strike intervention is subject to an abuse of discretion standard. See Breazeale v. Casteel, 4 S.W.3d 434, 436 (Tex. App.-Austin 1999, pet. denied); Guaranty Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990).

A trial court abuses its discretion if it acts without reference to any guiding rules or principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment. Instead, the test is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary and unreasonable. Id.

We agree with the Austin Court of Appeals in Breazeale, and recognize the unique situation created by the intervenor that has no complaint with the merits of the judgment obtained in the underlying lawsuit, but only seeks to protect his or her own interest in the post-judgment proceedings. We believe that post-judgment intervention is allowed where such is the case. See Breazeale, 4 S.W.3d at 436. Here, the issue of the trial court’s plenary jurisdiction is irrelevant to our determination of whether the trial court should have granted Appellant’s motion to strike Ap-pellee’s intervention. We agree that the decision of whether to allow the intervention or to strike the pleading was discretionary with the court and find no abuse in the court’s decision to allow the intervention to be filed.

We note that Appellant’s brief does not address the merits of why the denial of Appellant’s motion to strike was an abuse of discretion. Appellant only argues that because the plenary jurisdiction of the court had expired before the January 31, 2003 plea in intervention was filed, this Court should overrule the trial court’s decision below. His focus is solely on the expiration of the plenary judgment period as a bar to any further action by the trial court. We believe that the post-judgment filing of a plea in intervention to protect the interests of a party in the proceeds of a lawsuit was clearly contemplated by the legislature. Tex. Civ. Prac. & Rem.Code Ann. § 31.002(d) (Vernon Supp.2004-05).

We find no reason to hold that the decision of the trial court in allowing the filing of the post-judgment plea in intervention to protect Appellee’s interest in the proceeds of the judgment was an abuse of discretion. Accordingly, we overrule Appellant’s sole issue on appeal.

Because we have found that the trial court did not abuse her discretion in allowing the filing of the plea in intervention and having overruled Appellant’s sole issue on appeal, we affirm the judgment of the trial court and deny as moot Appellant’s motion to clarify.

      . The suit, styled Landmark Organization, L.P. v. Roberto Lerma, cause number 2000-2579, was filed in the 327th District Court of El Paso County.

      . Forbes’s cause of action was severed into cause number 2003-3431.

      . The appeals are cause numbers 08-03-00310-CV, styled Eduardo Lerma v. Stewart Forbes, and 08-03-00510-CV, 144 S.W.3d 18 (Tex.App.-El Paso 2004, no pet.), styled Eduardo Lerma v. Stewart Forbes. By separate opinion issued May 13, 2004, we have dismissed cause number 08-03-00510-CV and consolidated its record with cause number 08-03-00310-CV.

        .In re Lerma, 144 S.W.3d 21 (Tex.App. — El Paso 2004, orig. proceeding).


text:
    In re STATE of Texas ex rel. Jose R. RODRIGUEZ, Relator.
    No. 08-05-00071-CV.
    Court of Appeals of Texas, El Paso.
    June 23, 2005.

      Cygne Nemir and Arne Carl Schonber-ger, Asst. County Atty., El Paso, for Relator.
    Fernando Chacon, El Paso, Carmen Calderon, EL Paso, for Interested Party.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

Relator, Jose R. Rodriguez, the El Paso County Attorney, seeks a writ of mandamus on behalf of the State of Texas, directing the Honorable Luis Aguilar, Judge of the 120th District Court (Respondent), to vacate an order removing the County Attorney and his staff as prosecutor of a bond forfeiture and prohibiting the County Attorney and his staff from prosecuting future bond forfeitures in El Paso County. We conditionally grant mandamus relief.

FACTUAL SUMMARY

Carmen Calderon was arrested for fraudulent use or possession of identifying information. On August 8, 2003, Calderon and Safety National Casualty Corporation posted an appearance bond in the amount of $10,000. A two-count indictment was returned against Calderon and the case was assigned to the 120th District Court (Respondent). On October 8, 2008, Calderon failed to appear for arraignment and the bond was forfeited. Respondent entered a judgment nisi which was filed in cause number 2003BF295. An answer was filed on behalf of both Calderon and Safety National, but Calderon has not been rearrested and her criminal case remains pending.

Jose Rodriguez, the El Paso County Attorney, represents the State in all bond forfeitures pursuant to an agreement with the 34th District Attorney, Jaime Espar-za. In the bond forfeiture case, Safety National and America III Bail Bonds filed a civil suit against Rodriguez and Esparza in their official capacities in a pleading entitled “Plaintiffs Original Petition for Declaratory Judgment, Temporary Restraining Order, Injunction & Request for Disclosure.” The petition alleges that Rodriguez is not authorized to prosecute bond forfeiture cases. Consequently, Safety National and America III Bail Bonds sought to prohibit the County Attorney from prosecuting bond forfeitures and the District Attorney from referring these cases to the County Attorney. Safety National and America III Bail Bonds also filed a Rule 12 motion to show authority and included its argument about the County Attorney’s lack of authority as an affirmative defense to the bond forfeiture.

The State, represented by the County Attorney, filed a motion to quash the petition and it also sought to sever the criminal bond forfeiture from the civil proceeding brought against the District Attorney and County Attorney. The court set the case for a final hearing on January 27, 2005 at 8:30 a.m., but it heard only the bond forfeiture at that hearing. At the conclusion of that proceeding, Respondent entered an order determining that the County Attorney was not authorized to represent the State in bond forfeiture proceedings. The court also determined that the County Attorney’s Office has a conflict of interest because Rodriguez represents the County on the Bail Bond Board. In the same order, Respondent ordered that the County Attorney’s Office “cease and desist” from prosecuting bond forfeitures. The County Attorney filed a petition for writ of mandamus seeking to have Respondent’s order vacated. We granted the County Attorney’s request for emergency relief pending final resolution of this mandamus proceeding.

STANDARD OF REVIEW

To establish an entitlement to mandamus relief, a relator must satisfy two requirements: (1) there must be no adequate remedy at law to redress his alleged harm; and (2) the relator must have a clear right to the relief sought. Buntion v. Harmon, 827 S.W.2d 945, 947-48 and n. 2 (Tex.Crim.App.1992); State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App.1992). The second element has historically been stated in terms of requiring that the judicial conduct from which relief is sought be “ministerial” in nature. Buntion, 827 S.W.2d at 948 n. 2. An act is ministerial “where the law clearly spells out the duty to be performed ... with such certainty that nothing is left to the exercise of discretion or judgment.” Texas Dept. of Connections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981). A ministerial act is not implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. State ex rel. Hill v. Court of Appeals for Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App.2001). However, a so-called “discretionary” act may become “ministerial” when the facts and circumstances dictate but one rational decision. Buntion, 827 S.W.2d at 948 n. 2.

ADEQUATE REMEDY BY APPEAL

Relator asserts that he does not have an adequate remedy by appeal. We agree. Respondent entered the order removing Relator as prosecutor of the bond forfeiture against Calderon and the sureties during the final hearing on the bond forfeiture. The State cannot appeal a bond forfeiture. Tex.Code Crim. Proc. Ann. art. 44.42 (Vernon 1979). Further, Relator may not appeal Respondent’s order under any provision of Tex.Code Crim. Proc. Ann. art. 44.01 (Vernon Supp.2004-05). Finally, it has long been the law in Texas that mandamus relief is available to restore the rights of office to an official who has been illegally ousted or suspended from the performance of his duties. See State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 5 (Tex.Crim.App.1990); Terrell v. Greene, 88 Tex. 539, 31 S.W. 631, 635 (1895). More specifically, mandamus relief has been available to prosecutors who have been prohibited from representing the State in criminal cases. See State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex.Crim.App.1994) (mandamus remedy was available to district attorney to vacate district judge’s order prohibiting two assistant Attorneys General from serving as assistant district attorneys; no other legal mechanism short of mandamus would have allowed district attorney to challenge trial court’s order and district attorney had clear legal right to have district judge vacate the order); State ex rel. Eidson, 793 S.W.2d at 5 (mandamus relief was available to challenge order removing district attorney from case).

Safety National and America III Bail Bonds nevertheless contend that the County Attorney can appeal the “civil action remaining in this case.” The record before us reflects that the civil suit against the County Attorney and District Attorney remains pending in the district court. An appeal of some future judgment entered in the civil suit is speculative, at best, and is not an adequate remedy to challenge the order removing Relator as prosecutor in the criminal case.

EL PASO COUNTY ATTORNEY’S AUTHORITY TO PROSECUTE BOND FORFEITURES

After a forfeiture has been declared on a bond, the case is placed on the civil docket with the State of Texas as the plaintiff, and the principal and any sureties as defendants. Tex.Code Crim. Proc. Ann. art. 22.10 (Vernon Supp.2004-05). A bond forfeiture action is a criminal proceeding that utilizes the Rules of Civil Procedure. Id. (stating that a bond-forfeiture case is governed by same rules governing other civil suits); State v. Sellers, 790 S.W.2d 316, 321 (Tex.Crim.App.1990). The civil rules apply procedurally, but not substantively. See Sellers, 790 S.W.2d at 321. Article 22.10 does not transform a bond forfeiture proceeding from a criminal case into “a civil case.” Sellers, 790 S.W.2d at 321.

Article V, Section 21 of the Texas Constitution provides that County Attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district in which there shall be a District Attorney, the respective duties of District Attorneys and County Attorneys shall be as regulated by the Legislature. Tex. Const, art. V, § 21. To this end, the Legislature has provided that the district attorney for the 34th Judicial District represents the Staté in all criminal cases pending in the inferior courts having jurisdiction in El Paso County. Tex. Gov’t Code Ann. § 43.120(c) (Vernon 2004). This necessarily includes bond forfeitures. It is the primary duty of the County Attorney in El Paso County or his assistants to represent the State, El Paso County, and the officials of El Paso County in all civil matters pending before the courts of El Paso County and any other courts in which the State, the County, or the officials of the County have matters pending. Tex. Gov’t Code Ann. § 45.171(a) (Vernon 2004). The El Paso County Attorney’s authority to prosecute criminal cases is limited to the prosecution of misdemeanors that relate to health and environmental matters and to the prosecution of misdemeanors under Section 32.42 of the Penal Code. Tex. Gov’t Code Ann. § 45.171(b) (Vernon 2004). However, Section 45.171(c) further provides that the County Attorney may, at the request of the District Attorney, assist the District Attorney in criminal cases in El Paso County. Tex. Gov’t Code Ann. § 45.171(c) (Vernon 2004). This same authority is found in Article 2.02 of the Code of Criminal Procedure.

It is undisputed that the District Attorney has expressly requested that the County Attorney assist him by prosecuting the bond forfeitures. Therefore, the County Attorney and his assistants are constitutionally and statutorily authorized to represent the State in bond forfeitures in El Paso County. Respondent clearly abused his discretion in concluding otherwise.

CONFLICT OF INTEREST

Respondent also concluded that the County Attorney has a conflict of interest because he prosecutes the criminal portion of the bond forfeiture and represents El Paso County on the Bail Bond Board which governs the licensing of bail bond companies in El Paso County. A trial court may not disqualify a prosecutor or his staff on the basis of a conflict of interest that does not rise to the level of a due process violation. See State ex rel. Hill, 887 S.W.2d at 927; State ex rel. Eidson, 793 S.W.2d at 6. Safety National and America III Bail Bonds generally alleged that the County Attorney has a conflict of interest because he represents the Bail Bond Board and reports to that entity which sureties have not paid their obligations, a matter which can potentially affect whether the bail bondsmen’s licenses are renewed. A lawyer’s ethical duty to not engage in a conflict of interest is owed to his clients and former clients. See generally Tex. Disciplinary R. Prof. Conduct 1.06-1.10 (1989), reprinted in Tex. Gov’t Code Ann., Tit. 2, Subtit. G, App. A (Vernon 2005) (State Bar Rules art. X, § 9). Safety National and America III Bail Bonds do not claim that they are clients of the County Attorney. Consequently, they are unable to complain of an alleged “conflict of interest” on the part of the County Attorney. Further, we fail to perceive the basis for Respondent’s conclusion that a conflict of interest exists because the County Attorney prosecutes bond forfeitures and also advises the Bail Bond Board. The interests of the State and El Paso County are aligned because the State should recover forfeited bonds and the County should not permit bondsmen to renew their licenses if they are not fulfilling the obligations which they have undertaken. Respondent clearly abused his discretion by determining that the County Attorney has a conflict of interest which requires his removal as representative of the State of Texas in the bond forfeiture proceedings.

We hold that the County Attorney, by virtue of his agreement with the District Attorney, has authority to represent the State in bond forfeiture proceedings in El Paso County. Further, Safety National and America III Bail Bonds failed to establish that a conflict of interest requires Relator’s removal as representative of the State in the bond forfeitures. Relator has a clear right to mandamus relief from the order removing Relator as prosecutor in the bond forfeiture proceeding pending below and prohibiting Relator from representing the State in all bond forfeiture proceedings in El Paso County. Issues One through Four are sustained. Given our resolution of the first four issues, it is unnecessary to address Issue Five. We direct Respondent to vacate the January 27, 2005 order. The writ will issue only if Respondent fails to comply with this opinion.

      . Fernando Rodriguez d/b/a America III Bail Bonds is the agent who issued the bond on behalf of the surely, Safety National Casualty Corporation.

      . Tex.R. Civ. P. 12.

      . Article 2.02 provides: The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said coun-iy;and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. Tex.Code Crim. Proc. Ann. art.2.02 (Vernon 2005).

      . The record before us contains a copy of the letter signed by the District Attorney and County Attorney.


author: BRIAN QUINN, Chief Justice.

text:
    Billy D. HAYES, Appellant, v. The STATE of Texas, Appellee.
    No. 07-03-0287-CR.
    Court of Appeals of Texas, Amarillo.
    June 28, 2005.

      Joseph W. Kline, Lubbock, for appellant.
    Wade Jackson, Asst. Crim. Dist. Atty., Lubbock, for appellee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Billy D. Hayes appeals from his convictions on two counts of aggravated sexual assault and two counts of indecency with a child. His sole issue concerns the trial court’s implicit determination that trying the multiple offenses in the same proceeding did not unfairly prejudice him. According to appellant, the trial court had the “obligation to set forth its reasoning on the record, with or without request from either counsel, for its grant or denial of a request for severance where Texas Penal Code 3.04(b) ... is implicated.” Because the trial court did not, it allegedly erred. We overrule the issue and affirm the judgment.

According to § 3.04(a) of the Texas Penal Code, “[w]henever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.” Tex. Pen.Code Ann. § 3.04(a) (Vernon 2003). Yet, the “right to severance ... does not apply to a prosecution for offenses described by Section 3.03(b)(2) [of the same Code] unless the court determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses.... ” Id. § 3.04(c). Here, all involved concede that the offenses for which appellant was tried come within the scope of § 3.04(c). Thus, he had no automatic right to severance, but rather severance depended upon a finding of undue prejudice.

Next, the record discloses that though appellant moved for severance immediately before trial began and the trial court denied the motion without explaining why, appellant did not object to the lack of an explanation. This alone warrants rejection of his issue for one must preserve his complaint about supposed error through a timely or contemporaneous objection or request. Tex.R.App. P. 33.1(a). Appellant having failed to object to the omission or request that the trial court make findings, the issue was not preserved.

Yet, even if appellant preserved his complaint, we nonetheless would remain obligated to reject it. This is so for several reasons. First, noticeably absent from the wording of § 3.04 of the Penal Code is any requirement that the trial court inform the litigants why it opted to grant or deny a motion to sever under § 3.04(c). Given that it is the function of the legislature to create law, not the courts, we hesitate to write into § 3.04 that which the legislature omitted.

Furthermore, we note the similarity between the test mandated by § 3.04(c) and that of Texas Rule of Evidence 403. The latter also deals with the issue of unfair prejudice, but in the context of admitting evidence at trial. And, if the court finds that the admission of a particular bit of evidence would, among other things, “unfairly prejudice” a litigant, it may exclude the item. Tex.R. Evid. 403. Moreover, in determining whether such prejudice exists, the trial court must undertake a balancing test; that is, it must balance the probative value of the evidence against its potential for unfair prejudice. Yet, no independent healing need be convened for it to fulfill the duty. Patino v. State, No. 07-03-0131-CR, 2005 WL 1200850 at *2, 2005 Tex.App. Lexis 3934 at *5-6 (Tex.App.Amarillo May 19, 2005, no pet.)(not designated for publication); Franco v. State, 25 S.W.3d 26, 28 (Tex.App.-El Paso 2000, pet. refd). Nor must it illustrate, of record, that it undertook the requisite balancing. Patino v. State, 2005 WL 1200850 at *2, 2005 Tex.App. Lexis 3934 at *5-6; Parmer v. State, 38 S.W.3d 661, 670 (Tex.App.Austin 2001, pet. refd). Indeed, by the trial court considering and overruling the objection, it can be said that it necessarily engaged in the requisite balancing. Patino v. State, 2005 WL 1200850 at *2, 2005 Tex.App. Lexis 3934 at *5-6; Parmer v. State, 38 S.W.3d at 670.

To the extent that the Court of Criminal Appeals has set up a mechanism by which a trial court must analyze the potential for unfair prejudice under one circumstance, there seems little reason to implement a different mechanism when the same test (ie. unfair prejudice) is involved under another circumstance. Simply put, we see no reason to reinvent the wheel. So, to the extent that § 3.04(c) of the Penal Code obligates the trial court to assess the potential for unfair prejudice, we hold that it may utilize the analytical mechanism applied when facing a Rule 403 objection. That is, it need not illustrate, of record, how it undertook the requisite analysis. Nor must it specify the indicia or evidence it considered during its analysis. And, unless the record affirmatively shows otherwise, we may presume that by acting upon the request, it performed the duties imposed by § 3.04(c), and the record does not so illustrate here.

Thus, we overrule appellant’s sole issue and affirm the judgment.

      . We note the absence from appellant’s brief of argument purporting to illustrate that he suffered any prejudice, much less unfair prejudice.