author: BEA ANN SMITH, Justice. DAVID PURYEAR, Justice,

text:
    STATE of Texas, Appellant, v. Barbara OAKLEY, as Guardian of the Estate and Person of Richard Danziger, A Disabled Adult, Appellee.
    No. 03-05-00007-CV.
    Court of Appeals of Texas, Austin.
    Dec. 16, 2005.

      Joel L. Thollander, Cynthia Lee Alexander, Asst. Solicitor General, General Litigation, Austin, for Appellant.
    Scott Ozmun, Jeff Edwards, Whitehurst, Harkness, Ozmun & Brees, PC, Austin, for Appellee.
    Before Justices B.A. SMITH, PATTERSON and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

The question presented is whether a claim for compensation for wrongful imprisonment under chapter 103 of the civil practice and remedies code can be assigned to, and enforced by, a third party. See Tex. Civ. Prac. & Rem.Code Ann. § 103.001-.154 (West 2005) (Compensation to Persons Wrongfully Imprisoned). We hold that it can. The State appeals the trial court’s denial of its plea to the jurisdiction contending that (1) the statutory waiver of sovereign immunity in chapter 103 does not extend to an assignee, (2) common-law principles do not allow assignment of chapter 103 claims, and (3) there is no jurisdiction because the wrongfully convicted person has already received compensation through a settlement with the City of Austin. We affirm the trial court’s denial of the plea to the jurisdiction.

Factual and Procedural Background

Christopher Ochoa and Richard Danziger were wrongfiilly imprisoned for over twelve years for the October 1988 rape and murder of Nancy DePriest. Ochoa falsely confessed to the crime and falsely implicated Danziger as a participant. Pursuant to a plea agreement, Ochoa pleaded guilty to murder on May 5, 1989. As required by the terms of the agreement, Ochoa testified against Danziger. Danziger was convicted of aggravated sexual assault and sentenced to life in prison on March 6, 1990. In 1996, another man confessed to the murder and was later linked to the crime by an extensive investigation conducted by the Travis County District Attorney’s Office. The court of criminal appeals granted habeas corpus relief on the basis of actual innocence to both Ochoa and Danziger in December 2001, and their indictments were dismissed by the district court in February 2002. See Ex parte Ochoa, No. 74,246 (Tex.Crim.App. December 19, 2001) (unpublished per curiam opinion); Ex parte Danziger, No. 74,244 (Tex.Crim.App. December 19, 2001) (unpublished per curiam opinion). Ochoa sued the City of Austin in federal district court and received a sizable settlement. Danziger, through his guardian Barbara Oakley, then brought suit against Ochoa for falsely implicating him in the murder. As part of a settlement agreement in that ease, Ochoa assigned his right to compensation under chapter 103 of the civil practices and remedies code to Oakley, as Dan-ziger’s guardian. Oakley then brought suit against the State on behalf of Danziger as the assignee of Ochoa’s rights.

Chapter 103: Compensation to Persons Wrongfully Imprisoned

Because the issues in this case require us to interpret the statute, it is useful to review the relevant provisions of chapter 103 of the civil practices and remedies code. Chapter 103 generally serves to compensate persons who have been wrongfully convicted and incarcerated by the State. A person is entitled to compensation under the chapter if (1) the person has served in whole or in part a sentence in prison under the laws of the State of Texas, and (2) the person has been pardoned on the basis of innocence or has been granted relief on the basis of actual innocence. Tex. Civ. Prac. & Rem.Code Ann. § 103.001(a). A person need not show any fault by the State, and he is entitled to the same compensation whether his wrongful imprisonment resulted by accident or from intentional misconduct by the State.

Chapter 103 contains an explicit waiver of sovereign immunity, stating that a person may bring a suit against the State and that “the suit must be initiated by a verified petition alleging that the petitioner is entitled to compensation.” See id. § 103.101. If the trier of fact determines that the petitioner is entitled to compensation, the petitioner may collect expenses and attorney’s fees, lost wages, and medical and counseling expenses. Id. § 103.105(a). Damages are capped at $500,000. Id. § 103.105(c). Once a finding is made that a person is entitled to compensation under this chapter, notice is given to the governor, lieutenant governor, and the appropriate committee chairs in the legislature so that the legislature may appropriate the funds to pay compensation. Id. § 103.152(a). Compensation is to be paid no later than September 1 of the year the appropriation is made. Id. § 103.152(b). Even if a person is otherwise entitled to compensation, payments under the statute terminate if the person is convicted of a felony or dies before receiving payment. Id. § 103.154.

Waiver of Sovereign Immunity

In its first issue, the State contends that there is no jurisdiction over Oakley’s claim for compensation because the waiver of sovereign immunity contained in chapter 103 does not extend to her suit. Focusing on the filing requirements in section 103.101(b), the State argues that the statute permits a suit only by a person who is “entitled to compensation.” See id. § 103.101(b). The State then concludes that Ochoa, not the assignee of his rights, is entitled to compensation as defined by the statute, and, accordingly, there is no waiver of sovereign immunity as to Oakley’s suit on behalf of Danziger. See id. § 103.001(a). We agree that the plain language of the statute requires a petition to be filed by a person “entitled to compensation” and that, technically, only Ochoa meets this definition for the purposes of this suit. Thus, the waiver of sovereign immunity may only extend to a suit brought on behalf of Danziger if the common-law notion that an assignee stands in the shoes of the assignor applies to the waiver of sovereign immunity under chapter 103. See Holy Cross Church of Christ v. Wolf, 44 S.W.3d 562, 573 (Tex.2001); Burns v. Bishop, 48 S.W.3d 459, 466 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (axiomatic that assignee walks in shoes of assignor); see also Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (assignee of claim has standing to assert the injury in fact suffered by assignor). We must determine if this principle of assignment is consistent with the policies underlying chapter 103 and sovereign immunity.

Our supreme court has long held that “no State can be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex.2003) (quoting Hosner v. De Young, 1 Tex. 764, 769 (1847)); see also Beers v. State, 61 U.S. (20 How.) 527, 529, 15 L.Ed. 991 (1857). Although the concept of sovereign immunity stems from the feudal fiction that “the King can do no wrong,” Texas has abandoned that fiction and acknowledged that the purpose of retaining a significant measure of immunity is to protect the public treasury. Wichita Falls State Hosp., 106 S.W.3d at 697. The code construction act confirms that the restrictions on the waiver of sovereign immunity are intended to “preserve the legislature’s interest in managing state fiscal matters through the appropriations process.” Tex. Gov’t Code Ann. § 311.034 (West 2005).

In determining whether there is a waiver of sovereign immunity, we are guided by three principles. See University of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex.1994). First, the waiver of governmental immunity is a matter addressed to the legislature. Id. Second, to waive sovereign immunity, a statute must contain a clear and unambiguous expression of the legislature’s intent to waive sovereign immunity. Tex. Gov’t Code Ann. § 311.034; Wichita Falls State Hosp. v. Taylor, 106 S.W.3d at 696; Federal Sign v. Texas S. Univ., 951 S.W.2d 401, 405 (Tex.1997); York, 871 S.W.2d at 177. Third, in accordance with section 311.023 of the code construction act, we must construe the waiver provision to give effect to the object sought to be attained by the statute. York, 871 S.W.2d at 177; see Tex. Gov’t Code Ann. § 311.023 (West 2005). When construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity. Wichita Falls State Hosp., 106 S.W.3d at 697. If the text and history of the statute create doubt as to whether the legislature intended to waive sovereign immunity, we are less likely to find a waiver. Id.

The State and the dissent argue that sovereign immunity is not waived as to this suit because chapter 103 does not clearly and unambiguously specify that a suit for wrongful imprisonment may be assigned. We think this misapplies and misunderstands the purpose of the supreme court’s language requiring a statute to waive sovereign immunity clearly and unambiguously. Chapter 103 could not be clearer that the State’s immunity is waived to allow suit for wrongful imprisonment. The extent of this waiver is also clear: the State can only be sued when there has been a wrongful imprisonment. It is not further required, as the dissent suggests, that the statute mention that a claim may be assigned. Such a holding would ignore the supreme court’s teaching that when a statute is silent as to assignability, we must look to the common law, including principles of equity and public policy, to determine whether a claim may be assigned. PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 87 n. 28 (Tex.2004); Jackson v. Thweatt, 883 S.W.2d 171, 175 (Tex.1994) (“As the statute at hand is silent as to the rights of assignees, we turn to the common law to fill the gap.”) (quoting FDIC v. Bledsoe, 989 F.2d 805, 810 (5th Cir.1993)); see also Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.1998) (“Because the statute is silent on which party has the burden to prove the settlement amount, we refer to the common law.”). Assignment is a common-law principle allowing an assign-ee to stand in the shoes of the assignor precisely when there is no statutory or other right to assert such a cause of action. Although creating a waiver of immunity is the job of the legislature, the application of the common law governing assignability is the job of the courts.

If we look to the policy behind sovereign immunity and the objectives of the statute, there is no inherent reason to deprive a wrongfully convicted person of the right to assign such a cause of action. First, the assignment of a chapter 103 claim does not implicate the fiscal policy concerns underlying our strict construction of waivers. See Tex. Gov’t Code Ann. § 311.034. A statute’s creation of a waiver must be clear and unambiguous because “[w]aiver of governmental immunity, and imposition of the financial burden resulting from waiver on the taxpayers of this State, is a determination to be made by the Legislature.” York, 871 S.W.2d at 179. In chapter 103, the legislature clearly expressed its intent to waive immunity when a person has been wrongfully convicted. Unlike the ill-defined waiver for “use of tangible personal property” discussed in York, “wrongful conviction” is clearly de fined by chapter 103. See York, 871 S.W.2d at 177 (“Our construction of section 101.021(2) of the Tort Claims Act and the scope of waiver expressed therein has a long and arduous history.”). There is no risk that assignability would expand the existence or the extent of a claim under chapter 103 because the legislature precisely limited the nature of the claim and carefully capped the recovery available. Moreover, the common-law principles of assignment would also impose on the as-signee the same statutory limitations imposed on the assignor: the right to receive payment for wrongful imprisonment terminates if the assignor is convicted of a felony or dies before the assignee receives payment. See Tex. Civ. Prac. & Rem. Code Ann. § 103.154. Permitting assignment of a chapter 103 right to sue would neither increase the number of claims nor enlarge the drain on the State’s treasury. More importantly, it is in harmony with the objectives of the statute.

As reflected in the title of chapter 108, the statute provides compensation to persons who have been wrongfully convicted. Tex. Civ. Prac. & Rem.Code Ann. ch. 103 (“Compensation to Persons Wrongfully Imprisoned”). In a suit filed under this chapter, a person may claim lost wages, attorney’s fees, expenses from prior criminal proceedings, and medical and counseling expenses resulting from the wrongful imprisonment. See id. § 103.105. There is no provision for non-economic damages, and the total recovery is capped at $500,000. See id. The statute reflects the legislature’s intent to compensate a wrongly convicted individual for his economic losses, not to remedy mental anguish or punish the State for misconduct. It essentially gives an individual the money he would otherwise have earned during the time spent in prison. Nothing about this purpose is at odds with permitting the wrongfully convicted person to be compensated by assigning his right to sue in exchange for something of value or in satisfaction of a debt, as happened in this case. Given the purpose of the underlying legislation, there is no suggestion of legislative intent to prevent an otherwise lawful as-signee from pursuing a claim assigned by a wrongfully convicted person under chapter 103.

We note that there is a significant delay in compensation built into the statute. Once a court finds that a person is entitled to certain compensation, that person cannot collect as he would on a judgment. Instead, he must wait for the next legislative session and obtain a specific appropriation by the legislature, which then becomes due by September 1 of that year. See id. § 103.152. The statute does not provide for interest. See id. § 103.152(a)(2). It could easily take several years for a meritorious claim filed under chapter 103 to ultimately be paid. There is no doubt that such a lengthy delay in compensation will exacerbate the economic injury suffered by a wrongfully convicted person. Likewise, such an individual may not be in an emotional or economic position to pursue costly and lengthy litigation immediately upon release. The ability to assign a chapter 103 claim allows that person to satisfy a debt or obtain immediate access to funds. This gives the individual a choice to make a fresh start without becoming entangled in years of litigation and legislative action, furthering the legislative intent of affording limited economic reparations for wrongful imprisonment.

The dissent relies on the supreme court’s holding in Wichita Falls State Hospital that a statute must contain a clear and unambiguous expression of the legislature’s intent to waive immunity. See 106 S.W.3d at 696. We agree. The statute at issue in that decision, chapter 321 of the health and safety code, created a “patient’s bill of rights” but never expressly waived the State’s immunity. See id. at 698. The question presented was whether one could look to another section of the health and safety code, defining mental health facilities to include a “facility operated by the department,” and then move to yet another section that identified “the department” as the Texas Department of Mental Health and Mental Retardation, to infer that the patient’s bill of rights waived immunity for suit against state facilities. See id. at 699. This holding has no applicability to the express waiver contained in chapter 103, in which the legislature unambiguously waives the State’s immunity to permit suit for limited recovery for a wrongful conviction. One need not look to a definition in another section of the statute to discern what the legislature intended.

In Wichita Falls State Hospital, the supreme court considered that reading waiver into the patient’s bill of rights, a statute that never mentioned the word waiver, would expose the State to unprecedented liability by subjecting it to exemplary damage awards, contrary to the legislature’s “interest in protecting the State’s financial resources.” Id. at 701. By contrast, the ability to assign a claim under chapter 103 will not expand the State’s fiscal liability but will further the objective of the statute — to repair economic injury sustained by the wrongfully convicted.

Nor is it proper to interpret the supreme court’s demand that a waiver of sovereign immunity be clear and unambiguous, to require unambiguous legislative approval before a claim can be assigned. Wichita Falls State Hospital did not involve an assignment and in no way suggests that a statute must explicitly mention assignments. before a claim against the State may be assigned. The dissent mistakenly treats assignment as a right that must be grounded in the underlying statute. This ignores the longstanding principle that the assignment of claims is to be determined under common-law rules: “Thus, while the statute alone might not vest any rights in the transferees, the statute combined with the common law of assignment does.” Jackson v. Thweatt, 883 S.W.2d at 175. The holding in Wichita Falls.State Hospital has no applicability to the express waiver contained in chapter 103 or to the issue of assignability. Accordingly, we hold that the chapter’s express waiver of sovereign immunity extends to an assignee of a claim and overrule the State’s first issue.

Chapter 103 Claims Assignable

Having held that the statute’s waiver of sovereign immunity extends to an assignee of a claim, we consider the State’s second jurisdictional issue, whether chapter 103 claims are assignable under common law. The State and the dissent argue that such claims may not be assigned because they 'are (1) personal in nature and (2) expire on the death of the wrongfully convicted person. In addressing this issue, we look to the nature of chapter 103 claims and the policy implications of allowing assignment.

When a statute is silent as to whether a claim may be assigned, we look to common law principles. PPG Indus., 146 S.W.3d at 87. The traditional common-law rule generally prohibited assignment of claims. Id. However, this rule has steadily eroded and the general rule now favors assignability. See id.; State Farm Fire and Cas. Co. v. Gandy, 925 S.W.2d 696, 706 (Tex.1996). “But the as-signability of most claims does not mean that all are assignable; exceptions may be required due to equity and public policy.” PPG Indus., 146 S.W.3d at 87 (footnotes omitted); see also Gandy, 925 S.W.2d at 707 (emphasizing the “role of equity or policy” in determining whether a claim may be assigned). Indeed, all of the supreme court’s recent cases deciding whether certain causes of action may be assigned focus on the policy implications of assignment. See PPG Indus., 146 S.W.3d at 90; Gandy, 925 S.W.2d at 707; Elbaor v. Smith, 845 S.W.2d 240, 247 (Tex.1992); International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex.1988). In each of these cases, the supreme court has prohibited assignment out of concern that it would distort the litigation by realigning the interests of the parties. See PPG Indus., 146 S.W.3d at 91 (“We have prohibited assignments that skew the trial process, confuse or mislead the jury, promote collusion among nominal adversaries, or misdirect damages from more culpable to less culpable defendants.”); Gandy, 925 S.W.2d at 713; Elbaor, 845 S.W.2d at 249; International Proteins Corp., 744 S.W.2d at 934.

As we have stated, chapter 103 is intended to compensate the economic damages suffered by a wrongfully convicted person. Only one claim may be brought against the State for any wrongful conviction. See Tex. Civ. Prac. & Rem.Code Ann. §§ 103.001, .101(d). We do not find, and the State has not raised, even a hypothetical risk that assignment of a claim under chapter 103 would somehow distort litigation in the manner discussed by the supreme court. See PPG Indus., 146 S.W.3d at 90. Although the supreme court envisioned that jurors might be confused in assessing mental anguish or punitive damages when the affected person is not a party, see id., these damages are not available under chapter 103. See Tex. Civ. Prac. & Rem.Code Ann. § 103.105.

A related consideration in determining whether a claim or cause of action may be assigned is whether the right asserted is regarded as personal to the holder. See Gandy, 925 S.W.2d at 706. In Gandy, the supreme court explained that common law traditionally barred assignment of claims considered personal because of the risk of unjust prosecution of claims and because such claims “could not be enforced apart from [their] context without risking distortion.” Id. In PPG Industries, the court considered whether claims under the deceptive trade practices act (DTPA) were assignable. See 146 S.W.3d at 83. The court observed that claims that are “property-based and remedial” have historically been found assignable and claims that are “personal and punitive” have not. Id. at 87. With regard to DTPA claims, the court focused on the personal and punitive nature of a DTPA claim. See id. at 89. The court compared a DTPA claim with a warranty claim, explaining that “there must be a ‘personal’ aspect in being ‘duped’ that does not pass to subsequent buyers the way a warranty does.” Id. The court also compared the remedies provided in the DTPA:

In such cases, the most important role of the DTPA is the remedies it adds, not the ones it duplicates. Economic damages and attorney’s fees are certainly remedial, but they were recoverable in contract and warranty long before the DTPA was passed. The DTPA adds mental anguish and punitive damages— damages that could hardly be more personal.

Id. These distinctions are consistent with the traditional common-law approach to assignment. In 1882, the supreme court distinguished assignable claims relating to property from personal torts that die with the party:

Such are actions of slander, libel, assault and battery, false imprisonment, crim. con., seduction, etc. On the other hand, when the injury affects the estate rather than the person,. when the action is brought for damage to the estate and not for injury to the person, personal feelings or character, the right of action could be bought and sold.

G.H. & S.A.R.R. v. J.D. Freeman, 57 Tex. 156, 158 (Tex.1882). However, assignment of personal injury claims has been the general rule in Texas for over a century. See Gandy, 925 S.W.2d at 707; Gulf, C. & S.F. Ry. Co. v. Miller, 21 Tex.Civ.App. 609, 53 S.W. 709, 710-11 (1899). Thus, it is only when claims are both personal and punitive that there is a risk of distorting litigation. See Gandy, 925 S.W.2d at 706; PPG Indus., 146 S.W.3d at 87. The determination of whether a claim may be assigned is ultimately a question of policy.

Avoiding these policy arguments and focusing on the personal aspects of a chapter 103 claim, the State argues that chapter 103 claims are analogous to DTPA claims and should likewise be found unassignable. See PPG Indus., 146 S.W.3d at 89. The State asserts, “if a claim that a person was deceived in a commercial transaction is ‘personal’ ... a claim that a person served time for a crime he did not commit must be similarly personal.” However, this analogy ignores the significant differences between DTPA claims and a claim under chapter 103. First, the parties often contest whether a consumer was deceived in a DTPA action. By contrast, whether a person was wrongfully convicted will not be contested in a chapter 103 claim because a claimant must have already been pardoned or granted relief on the grounds of actual innocence to be entitled to compensation. Tex. Civ. Prac. & Rem.Code Ann. § 103.001(a). The facts of the underlying criminal prosecution, or the individual’s experience in prison, will be irrelevant to a chapter 103 claim.

More importantly, the supreme court’s opinion in PPG Industries indicates that the damages available in a chapter 103 claim are not “personal.” See 146 S.W.3d at 89. In the context of DTPA claims, the court distinguished between economic damages that are remedial and “mental anguish and punitive, damages — damages that could hardly be more personal.” Id. Looking to chapter 103, we note that subjective damages such as mental anguish and punitive damages are not available for a wrongful conviction. See id. Compensation is limited to the person’s lost wages and legal and medical expenses resulting from the wrongful imprisonment. See id. It is difficult to imagine economic damages more remedial in nature. These are concrete, objectively measured economic damages that cannot be construed as personal. See PPG Indus., 146 S.W.3d at 89-90.

Nor do the termination provisions of the statute render a chapter 103 claim unas-signable. See Tex. Civ. Prac. & Rem.Code Ann. § 103.154. Under the statute, a wrongfully imprisoned individual’s right to receive payment terminates if he dies or is convicted of a felony before payment is made. See id. The State cites a court of appeals opinion stating that “in the absence of an express statutory provision to the contrary, a statutory cause of action is not assignable if it is personal to the one who holds it and would not survive his death.” Bay Ridge Util. Dist. v. 4M Laundry, 717 S.W.2d 92, 96 (Tex.App.Houston [1st Dist.] 1986, writ ref'd n.r.e.) (citing Dearborn Stove Co. v. Caples, 149 Tex. 563, 236 S.W.2d 486, 490 (1951)). Here, we have determined that a chapter 103 claim is not personal, and therefore the prohibition on assignment set forth in Bay Ridge does not apply. See id. (assignment prohibited when claim (1) is personal and (2) would not survive death). Even in Dearborn Stove, the supreme court held that the remedial aspects of an antitrust claim were assignable, while other damages did not survive death. See 236 S.W.2d at 490. Because the only damages available under chapter 103 are remedial, we hold that such a claim is not personal and that it is assignable even though the right to compensation terminates on the death of the wrongfully convicted person. However, the assignee takes only those rights held by the assignor, and his right to payment would terminate if the wrongfully convicted person dies or is convicted of a felony prior to the assignee’s receipt of compensation under the statute. We overrule the State’s second issue.

Section 103.153

In its third and final'issue, the State contends that the trial court lacked jurisdiction because Ochoa has already received compensation through the settlement of an earlier lawsuit against the City of Austin. Section 103.153(b) states:

A person who receives compensation under this chapter may not bring an action involving the same subject matter, including an action involving the person’s arrest, conviction, or length of confinement, against any governmental unit or an employee of any governmental unit.

Tex. Civ. Prac. & Rem.Code Ann. § 103.153(b) (emphasis added). Without deciding whether this provision is jurisdictional, we find that the plain language of the statute does not support the State’s contention. The statute states that a person who receives compensation under chapter 103 may not bring an action involving the same subject matter; it does not state the reverse. Id. When Ochoa brought his federal action against the City of Austin, he did not seek and did not receive compensation under chapter 103. Ochoa’s suit against the City of Austin alleged intentional violations of his civil rights and negligence by the city, and his recovery was not limited to no-fault economic damages for the wrongful conviction itself. Nothing in the statute prohibits a person who has brought a separate prior action relating to his wrongful imprisonment from bringing a subsequent claim under chapter 103.

Our reading of section 103.153(b) is consistent with case law interpreting a similar provision in the tort claims act. Prior to its amendment, section 101.106 of the tort claims act stated:

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.

See Driskill v. State, 779 S.W.2d 945, 948 (Tex.App.-Fort Worth 1989), aff'd in relevant part, rev’d in part, 787 S.W.2d 369 (Tex.1990). In Driskill, the State argued that the plaintiffs’ prior settlement with an employee barred suit against the governmental unit. Id. The Fort Worth court of appeals disagreed, holding that the statute barred suit against an employee after settlement with the State, but not vice versa:

If the [plaintiffs] had settled their cause of action against the State, section 101.106 would bar an action against [the employee]. Section 101.106 does not bar an action against the State because the plain language of the statute does not allow such an interpretation.

Id. Likewise, if the legislature intended chapter 103 to provide no-fault recovery of economic damages only if a wrongfully convicted person has received no other compensation, it did not say so.

The State asks us to liberally construe section 103.153, contending that the legislature intended that a person never be compensated by more than one governmental entity. It argues that the chapter’s $500,000 limitation on damages for wrongful compensation “is strong evidence ... that [the] section should not be read as a legislative encouragement to seek additional compensation.” This argument ignores the no-fault aspect of the remedy provided by chapter 103, and we are not persuaded that the legislature intended to force an individual to choose between seeking relief for tortious conduct by the State and the no-fault relief provided under chapter 103. Furthermore, the plain language of section 103.153 forecloses any subsequent action against a governmental unit involving the same subject matter once a person receives compensation under chapter 103. Because a chapter 103 claim must be filed no later than the third anniversary of the date the person was pardoned or found not guilty, the bar on subsequent actions limits the State’s liability from other actions so long as claims are processed and paid in a timely manner. See Tex. Civ. Prac. & Rem.Code Ann. § 103.003.

Based on the plain language of the statute and case law interpreting a similar provision in the tort claims act, we hold that section 103.153 does not bar this suit because Ochoa’s previous settlement of federal claims was not brought under chapter 103. We overrule the State’s third issue.

Conclusion

We hold that the waiver of sovereign immunity in chapter 103 of the civil practices and remedies code includes a suit brought by an assignee of a wrongfully convicted person, that common-law principles permit assignment of such claims, and that the statute does not prohibit a suit by a person who has previously obtained compensation from another governmental unit not based on chapter 103. Having overruled all of the State’s issues, we affirm the trial court’s denial of the State’s plea to the jurisdiction.

Dissenting Opinion by Justice PURYEAR.

DAVID PURYEAR, Justice,

dissenting.

Because I disagree with the majority’s determination that Ochoa’s wrongful imprisonment claim can be assigned to Dan-ziger, I respectfully dissent.

In this case, we must start with the premise that Texas cannot “be sued in her own courts without her consent, and then only in the manner indicated by that consent.” Hosner v. De Young, 1 Tex. 764, 769 (1847), quoted in Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex.2003). The State may relinquish its sovereign immunity, if at all, in “varying degrees,” and the legislature “is better suited to balance the conflicting policy issues associated with waiving immunity.” Wichita Falls, 106 S.W.3d at 695. I believe that the question of whether assignment is a necessary extension of the right created by this statute involves policy considerations better left for the legislature. Further, because the legislature may waive immunity in “varying degrees,” the legislature’s waiver of immunity as to “the person entitled” to relief after wrongful imprisonment does not necessarily mean that the legislature also intended to waive immunity as to someone purportedly holding an assignment of that right.

The State is immune both from suit and from liability, and even if the State “acknowledges liability on a claim,” it does not necessarily follow that the State waived immunity from suit. Id. at 696. In evaluating whether immunity has been waived, we consider several factors. Id. at 697. First, waiver must be “beyond doubt.” Id. Second, we resolve ambiguities in favor of immunity, and if the statute leaves room for doubt, we “are less likely to find a waiver.” Id. Third, we must consider whether the legislature provided by statute for an “objective limitation on the State’s potential liability.” Id. at 698.

Even if immunity from suit is waived, it is important to remember that the rule requiring a clear and unambiguous waiver applies both to the existence and to the extent of the waiver. City of LaPorte v. Bayfield, 898 S.W.2d 288, 297 (Tex.1995); see Wichita Falls, 106 S.W.3d at 696. However, “[t]he clear and unambiguous requirement is not an end in itself, but merely a method to guarantee that courts adhere to legislative intent. Therefore, the doctrine should not be applied mechanically to defeat the true purpose of the law.” Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex.2000). In other words, we cannot apply the “clear and unambiguous rule” so rigidly as to defeat the “almost certain intent” of the legislature. Id. (quoting Barfield, 898 S.W.2d at 292). We may not interpret statutory language so as to render it pointless if it is reasonably susceptible of another construction, and if there is no reasonable doubt of a statute’s purpose, “we will not require perfect clarity, even in determining whether governmental immunity has been waived.” Barfield, 898 S.W.2d at 292.

In Wichita Falls, the statutes in question seemingly added up to the State being amenable to suit. See 106 S.W.3d at 698-99. However, the statute did not “contain the sort of explicit language the Legislature generally uses to confirm its intent to waive sovereign immunity,” and therefore the supreme court examined the statute to decide whether “the incorporated definition is the functional equivalent of an explicit” legislative waiver. Id. at 699. The court observed that the statute creates a “meaningful cause of action against private” facilities that “remains viable even if suit against the government is barred” and that the statute’s purpose is accomplished without allowing suits against the State. Id. at 700. Therefore, the court determined that the statute “does not waive the State’s immunity beyond doubt” and that “[t]he statute’s ambiguity precludes our finding an unmistakable Legislative intent to waive sovereign immunity.” Id. at 700-01.

In this case, section 103.001 of the civil practice and remedies code provides that a person is entitled to compensation for wrongful imprisonment if “the person has served in whole or in part a sentence in prison” and has either received a full pardon or been granted relief on the basis of actual innocence. Tex. Civ. Prac. & Rem. Code. Ann. § 103.001(a) (West 2005). A “person seeking compensation under” chapter 103 must initiate proceedings to obtain relief no later “than the third anniversary of the date the person received the pardon or was found not guilty.” Id. § 103.003 (West 2005). Subchapter C governs the seeking of compensation through suit against the State, and its provisions require a claimant to file “a verified petition alleging that the petitioner is entitled to compensation.” Id. § 103.101(b) (West 2005). A “petitioner must establish by a preponderance of the evidence that the petitioner is entitled to compensation,” id. § 103.102 (West 2005), and if the fact-finder determines that the petitioner is entitled to relief, the petitioner may recover expenses “incurred by the petitioner” related to the criminal proceedings, income lost as a direct result of the wrongful imprisonment, and medical and counseling expenses “incurred by the petitioner.” Id. § 103.105(a) (West 2005). In determining the proper amount of compensation, the fact-finder may not deduct any expenses incurred by the State “in connection with the arrest, prosecution, conviction, and wrongful imprisonment of the petitioner.” Id. § 103.105(b). Payments terminate if the eligible person is later convicted of a felony or “on the date of the person’s death”; compensation payments do not flow to the person’s heirs or estate. Id. § 103.164 (West 2005).

I set out the applicable statutory provisions to highlight the fact that each statute is couched exclusively in terms of the wrongfully convicted person. There is no mention of assignment, nor is this statute one that is rendered meaningless without a finding of waiver as to an assignee. See Wichita Falls, 106 S.W.3d at 698, 700; Fernandez, 28 S.W.3d at 3. I agree with the majority that the legislature has shown a clear and unmistakable intent to waive immunity for a person who has wrongfully “served in whole or in part a sentence in prison.” Tex. Civ. Prac. & Rem.Code Ann. § 103.001(a). However, the legislature has not shown a clear intent to allow that right of action and corollary waiver of immunity to be transferred to another person. Compensation under chapter 103 may be had only upon application or petition by the convicted person and, although this chapter contains a clear waiver of immunity from suit when an entitled person files a verified petition, it only allows for recovery by the injured person. The claimant must aver that he or she was entitled to compensation, and there is no indication of any intent to allow others to seek compensation for the imprisoned person’s damages. More important, compensation ceases upon the claimant’s death and does not survive to pass to his or her heirs. This clearly demonstrates that the legislature intended claims made under this chapter to be personal in nature and limited to the wrongfully imprisoned person. To widen the legislature’s waiver of immunity and graft more liberal common-law principles onto these statutes flies in the face of established sovereign immunity law.

Furthermore, I believe the majority im-permissibly melds the definition of a “personal” claim with the question of whether available damages are remedial or punitive, two aspects of a claim that I believe are separate inquiries. I recognize that the compensation allowed under chapter 103 is remedial in nature and that punitive damages are not allowed. However, that does not change the fact that the injury being addressed could hardly be more personal in nature or that every provision of chapter 103 is expressly limited to the wrongfully imprisoned person him or herself. Although the general rule does allow for the assignment of most claims, as stated in Bay Ridge Utility District v. 4M Laundry, “in the absence of an express statutory provision to the contrary, a statutory cause of action is not assignable if it is personal to the one who holds it and would not survive his death.” 717 S.W.2d 92, 96 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (citing Dearborn Stove Co. v. Caples, 149 Tex. 563, 236 S.W.2d 486, 490 (1951)).

The express language of chapter 103 shows a legislative intention that claims under chapter 103 be considered personal claims, albeit personal claims with relief limited to remedial compensation. Because chapter 103 claims are personal in nature and do not survive the claimant’s death, under Bay Ridge and Dearborn Stove, I would hold that chapter 103 claims are not assignable and may only be filed by the wrongfully imprisoned person him or herself.

I believe that the majority’s allowance of the assignment impermissibly broadens the waiver of immunity beyond the legislature’s intentions. Further, I would hold that Ochoa’s claim under chapter 108 is a personal claim and, because it cannot survive his death, I would hold that it may not be assigned to another party. For these reasons, I respectfully dissent.

      . Danziger was declared incompetent and in need of a guardian because of the brain injury he sustained from a beating while incarcerated. The State does not contend that Danziger’s reliance on his guardian, Oakley, to pursue his rights affects our determination of its sovereign immunity and assignability issues. Thus, we will consider the State's issues as if Danziger had brought the suit himself. We also emphasize that Danziger's status as a wrongfully convicted person himself is irrelevant to his ability as an assignee to assert Ochoa’s rights to relief under chapter 103. Danziger also received a substantial settlement from the City of Austin but that settlement has no bearing on the issues in this appeal.

      . In the alternative, a wrongfully imprisoned person may opt to file an administrative application with the Comptroller seeking compensation pursuant to section 103.051 of the code. See Tex. Civ. Prac. & Rem.Code Ann. § 103.051 (West 2005). Under this provision, an applicant is entitled to compensation in the amount of $25,000 per year served in prison. Id. § 103.052 (West 2005). Recovery under the administrative procedure is capped at $500,000. Id.

      . Section 311.023 of the government code states:
      In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:
      (1) object sought to be attained;
      (2) circumstances under which the statute was enacted;
      (3) legislative history;
      (4) common law or former statutory provisions, including laws on the same or similar subjects;
      (5) consequences of particular construction;
      (6) administrative construction of the statute; and
      (7) title (caption), preamble, and emergency provision.
      Tex. Gov’t Code Ann. § 311.023 (West 2005).

      . Nor would assignability create an undue administrative burden. The payments are to made in two installments one year apart, and the burden of establishing that the assignor is still alive and has not been convicted of a felony would fall on the assignee.

      . Although the facts in Wichita Falls State Hospital are distinguishable, the supreme court's analysis is instructive. The court closely examined the implications of finding a waiver in terms of the objectives of the statute and the fiscal policy underlying sovereign immunity. See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692, 700-02 (Tex.2003) (immunity would not defeat puipose of the statute and would protect State from indeterminate damage awards). Applying the same analysis in this case, we conclude that the waiver of sovereign immunity in chapter 103 extends to an assigned claim.

      . Under the dissent's view, no cause of action against the State would be assignable unless expressly stated by statute. Such a view would likely prohibit assignment of most claims against the State because the legislature has traditionally left the determination of assignability to the courts unless it is expressly prohibited by statute.

      . We note that policy concerns were paramount even when assignment was the exception to the rule:
      And first was observed the grand wisdom and policy of the sages and founders of our law, who have provided, that no [cause of action] shall be granted or assigned to strangers, for that would be the occasion of multiplying of contentions and suits, of great oppression of the people ... and the subversion of the due and equal execution of justice.

        Lampet’s Case, 77 Eng. Rep. 994, 997 (K.B. 1613); see Gandy, 925 S.W.2d at 706.

      . The State’s analogy to wrongful death actions is also not applicable. The wrongful death statute specifies that an action may only be brought by the surviving spouse, children, and parents of the decedent. See Tex. Civ. Prac. & Rem.Code Ann. § 71.004 (West 1997); Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex.App.-Eastland 2004, no pet.). Exemplary damages are available in a wrongful death action. See Tex. Civ. Prac. & Rem. Code Ann. § 71.009 (West 1997). The right conferred by the wrongful death statute is considered to be personal, it does not survive the death of a beneficiary, and may not be assigned. See id.; Lowe v. Employers Cas. Co., 479 S.W.2d 383, 389 (Tex.Civ.App.-Fort Worth 1972, no writ); Southern Pac. Co. v. Winton, 27 Tex.Civ.App. 503, 66 S.W. 477, 480 (1901, writ ref’d). As discussed above, chapter 103 claims are not personal in nature and only allow for remedial damages. Thus, it is consistent with the case law to treat wrongful death actions, in which exemplary damages are available, differently from chapter 103 claims in terms of assignment. See PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 87 (Tex.2004).
      Moreover, chapter 103 provides two specific grounds by which compensation terminates — -death or conviction of a felony. Tex. Civ. Prac. & Rem.Code Ann. § 103.154 (West 2005). We will not apply case law limiting assignment where a cause of action does not survive the death of the beneficiary to control a statute that only restricts the right to receive payment.

      . Thus, if Ochoa had first sued the State under chapter 103, he could not subsequently have sued the City of Austin.

      . The majority cites several cases for the proposition that in the face of statutory silence, we should look to common-law principles governing assignment. See PPG Indus., Inc. v. JMB/Houston Ctrs., Partners Ltd. P'ship, 146 S.W.3d 79, 87 (Tex.2004); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.1998); Jackson v. Thweatt, 883 S.W.2d 171, 175 (Tex.1994). None of those cases, however, deals with sovereign immunity.

      . The legislature ratified this concept when it enacted section 311.034 of the Code Construction Act, providing that there is no waiver unless “effected by clear and unambiguous language.” Tex. Gov’t Code Ann. § 311.034 (West Supp.2005).

      . The plaintiff sued a state hospital, part of the Texas Department of Mental Health and Mental Retardation C'MHMR”), for violations of the patient's bill of rights. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex.2003); see Tex. Health & Safety Code Ann. 321.002, .003 (West 2001) (persons harmed by violation of patient’s bill of rights may sue for damages). Although the bill of rights does not expressly define “mental health facilities,” it uses "the meaning assigned by Section 571.003.” Tex. Health & Safety Code Ann. § 321.001(4) (West 2001). "Mental health facility” is defined by section 571.003 to include facilities operated by MHMR. Id. § 571.003(12) (West Supp.2005).

      . In its discussion of Wichita Falls and the waiver of immunity made the subject of that case, the majority fails to draw this distinction between waiver as to the wronged person and an assignee.


source: Caselaw Access Project

author: Justice O’NEILL.

license: Public Domain

text:
    Michael SHOEMAKE d/b/a MT Auto Sales, Appellant v. Jerry WATSON, Appellee.
    No. 05-05-00090-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 5, 2006.
    Todd W. White, The "White Law Firm, Rockwall, for Appellant.
    Terry Jarvis, Dallas, for Appellee.
    Before Justices O’NEILL, FITZGERALD and LANG.
   OPINION

Opinion by

Justice O’NEILL.

The court has before it the parties’ December 27, 2005 “Joint Motion to Vacate and Dismiss.” We GRANT the joint motion, VACATE the trial court’s judgment and DISMISS this case. Tex.R.App. P. 42.1(a)(2).


author: Justice FRANCIS.

text:
    David L. McGOODWIN, Appellant, v. Deborah McGOODWIN, Appellee.
    No. 05-05-00237-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 6, 2006.

      J. Douglas Uloth, Uloth & Peavler, L.L.P., Dallas, for Appellant.
    Kirsten M. Castaneda, Locke Liddell & Sapp LLP, Dallas, for Appellee.
    Before Justices WHITTINGTON, FRANCIS, and LANG.
   OPINION

Opinion by

Justice FRANCIS.

This is a second appeal arising from a dispute regarding payment of a promissory note executed by David McGoodwin and DLM Enterprises, Inc., a closely held corporation, to Deborah McGoodwin. Deborah brought suit against David for breach of contract after he stopped making payments on the promissory note. The trial court granted summary judgment to Deborah and denied David’s motion for summary judgment which decision David now appeals. We affirm the trial court’s judgment.

On March 15, 1989, as a part of a divorce settlement, David and DLM Enterprises, Inc., a closely held corporation, executed a promissory note for $150,000 to Deborah. Under the terms of the promissory note, David agreed to make interest payments of $1,500 each month until October 15, 1997 at which time he was to make monthly principal payments of $4,166.67 plus accrued interest until the debt was paid in full. David as president of DLM Enterprises, Inc., and Deborah also signed a security agreement providing Deborah would hold 4,000 shares of DLM Enterprises, Inc. stock as collateral to secure the promissory note. The day after the parties signed the note and security agreement, Deborah and David executed them Agreement Incident to Divorce. The parties apportioned the community property so that Deborah received 4,000 shares of DLM Enterprises, Inc. and David received 6,000 shares of DLM Enterprises, Inc. According to the AID, Deborah would receive 4,000 shares of DLM and $150,000 in .cash if David died. David made interest payments from March 1989 until December 1991. In December 1991 DLM ceased all business except for the collection of accounts receivable and David made no further payments to Deborah on the note.

Deborah filed suit for payment of the promissory note in October 2001. The trial court granted summary judgment in favor of Deborah awarding her $335,733.76 and denied David’s motion for summary judgment. David appealed. In the first appeal, this Court held, among other issues, the trial court appropriately denied David’s motion for summary judgment, but determined Deborah’s recovery should have been limited to the six-year period before she filed suit on October 5, 2001. McGoodwin v. McGoodwin, 2003 WL 22020781, *3 (Tex.App.-Dallas 2003, pet. denied). The Court reversed the trial court’s judgment and remanded the case for further proceedings.

On remand, both David and Deborah filed motions for summary judgment. Once again, the trial court denied David’s motion for summary judgment and granted Deborah’s motion for summary judgment. In recalculating the money due Deborah based on the previous opinion of this Court, the trial court awarded Deborah $449,669.86 as well as post-judgment interest at a rate of 12% per annum, compounded annually.

In his two issues in this second appeal, David first argues that the trial court erred in granting Deborah’s motion for summary judgment for seven reasons: (1) his obligation to pay under the note was released by language in the AID; (2) Deborah’s efforts to enforce the note constitute a collateral attack on the divorce decree; (3) the note fails due to mutual mistake; (4) the note fails due to failure of consideration; (5) the contract to sell the stock fails from frustration of purpose; (6) the note is subject to the four-year statute of limitations on a debt; and (7) interest on interest accrues beginning on the maturity date of the note. In his second issue, David urges the trial court erred in denying his motion for summary judgment based on his arguments under his first issue.

Although David raises issues in this second appeal that were decided against him in the first appeal, David urges this Court to reconsider the entire case because the mandate issued by this court reversed the trial court’s judgment and remanded the case “to the court for further proceedings.” David argues that the general language of the judgment remands the case to the court below for a new trial on all issues of fact and consequently the case should be reopened in its entirety. We disagree. In interpreting the mandate of the appellate court, we should not only look to the mandate but to the opinion of the court as well. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). In our first opinion, this Court concluded Deborah had shown as a matter of law that the note did not represent a “sale” of 4000 shares of stock but the shares were being held as collateral and would have been released once the payments had been made under the note. Further, the fact that the shares lost value when DLM ceased business did not affect David’s promise to pay under the note or frustrate the purpose of obtaining payments under the note. Finally, the Court rejected David’s contention that Deborah’s claims were barred by the statute of limitations determining the summary judgment in Deborah’s favor should not have included payments accruing outside the six-year limitations period determined by the Court to apply to a “note payable at a definite time.” The above issues presented in the second appeal being the same as those already resolved in the first appeal will not be reconsidered here (failure of consideration, frustration of purpose, limitations). See id. at 630.

We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied). In reviewing a traditional summary judgment, we apply well-known standards. See Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Swiley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 682 (Tex.App.-Dallas 2000, no pet.). When both parties move for summary judgment, and one motion is granted while the other is not, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented and render the judgment the trial court should have rendered. Texas Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004).

On his argument that his obligation to pay under the note was released by language in the AID, David argues that the merger clause in the AID, providing “... this instrument expresses the entire agreement between the parties concerning the subjects it purports to cover,” exempts the promissory note from performance because it falls within the scope of the general release and cannot be enforced. We disagree.

“Merger refers to the extinguishment of one contract by its absorption into another contract and is largely a matter of the intention of the parties.” Smith v. Smith, 794 S.W.2d 823, 827-8 (Tex.App.Dallas 1990, writ w'drawn). Merger applies only if the last contract is between the same parties, embraces the same subject matter, and must have been so intended by the parties. Id. Here, not only were the agreements signed by different parties and dealt with different matters, but clearly the intent of the parties was that the agreements be separate and not absorbed one by the other. Deborah, David individually, and David, as president of DLM Enterprises, Inc. signed the promissory note. But only Deborah and David in his individual capacity signed the AID. David McGoodwin individually, and David McGo-odwin as president of DLM Enterprises, Inc. are not the same parties. See e.g. Fish v. Tandy Corp., 948 S.W.2d 886, 898 (Tex.App.-Fort Worth 1997, writ denied). Since different parties signed the promissory note and the AID, there was no merger as a matter of law and, consequently, no release. The promissory note and security agreement dealt with the promise by David and DLM to pay $150,000 to Deborah; the AID dealt with matters incident to the final settlement of the divorce. The promissory note and security agreement were signed the day before the AID was executed, evidencing the intent of the parties that both transactions be separate, valid and made in conjunction with the finalizing of the divorce.

Regarding David’s argument that Deborah’s efforts to enforce the note constitute a collateral attack on the divorce decree, we disagree. When two or more instruments executed contemporaneously or at different times, pertain to the same transaction, the instruments, including promissory notes, will be read together even if they do not expressly refer to each other. Pendleton Green Assocs. v. Anchor Savs. Bank, 520 S.W.2d 579, 584 (Tex.Civ.App.-Corpus Christi 1975, no writ).

Deborah testified in her third affidavit that the promissory note was entered into the day prior to signing the AID. The 4,000 shares of DLM Enterprises, Inc. referred to by Deborah are listed in Schedule 3, attached to the AID, as community property apportioned to Deborah. Similarly, David stated in his first affidavit that the promissory note and security agreement were prepared by Deborah’s attorney and presented to him at the meeting where “we finalized the divorce.” Even though David stated in his second affidavit that the promissory note “did not relate to or implement the division of our community property,” he presents no facts to support his claim that Deborah’s attempts to enforce the promissory note are an attempt to divide the community property other than as provided by the family court’s decree. David and Deborah signed the promissory note the day before they signed the AID. Further, the promissory note and security agreement were presented to David by Deborah’s attorney at a meeting regarding the divorce. We conclude the trial judge did not err in determining that Deborah’s efforts to enforce the promissory note was not an impermissible collateral attack on the divorce decree.

In arguing mutual mistake nullifies the note, the evidence must show that both parties were acting under the same misunderstanding of the same material fact. Okon v. MBank, N.A., 706 S.W.2d 673, 675 (Tex.App.-Dallas 1986, writ refd n.r.e.). Because David fails to identify any summary judgment evidence regarding the specific common misunderstandings both he and Deborah held relating to the promissory note, he raises no issue of material fact on the existence of mutual mistake.

Finally, David states that there is a genuine issue of material fact as to the date when post-maturity interest accrues, arguing that interest did not accrue the day each monthly payment became overdue but rather on either September 15, 2000, when the final payment was due or October 5, 2001, when Deborah accelerated the note. This Court previously held the promissory note was a note payable at a definite time and set the correct statute of limitations at six years prior to the date that Deborah filed suit, or October 5, 1995. McGoodwin, 2003 WL 22020781, at *2. Appellant does not claim the promissory note is ambiguous and in fact the note clearly establishes how and when interest accrues. According to the note, “matured unpaid principal and interest shall bear Interest at the rate of ... 12% per annum from date of maturity until paid” and would accrue until the indebtedness was paid in full. Deborah was entitled to interest payments dating from October 5, 1995. No genuine issue of material fact is presented.

We affirm the trial court’s judgment.


author: Justice FITZGERALD.

text:
    Ronald Calvin JONES, Appellant v. The STATE of Texas, Appellee.
    No. 05-04-01062-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 9, 2006.

      Lawrence B. Mitchell, Dallas, for Appel-lee.
    William T. (Bill) Hill, Jr., Crim. Dist. Atty., Charles Patrick Reynolds, Dallas, for State.
    Before Justices FITZGERALD, LANGMIERS, and MAZZANT.
   OPINION

Opinion by

Justice FITZGERALD.

A jury found appellant Ronald Calvin Jones guilty of murder and assessed his punishment at seventy years’ imprisonment. In a single issue, Jones argues that the- district court erroneously required him to produce to the State a written statement he had given his attorney, in violation of the attorney-client privilege. We affirm.

BackgrouNd

Jones escorted a woman to a club in Dallas. When the pair left, they walked past Joseph Smith, Jr., who made a derogatory comment to the woman. An altercation — described by a number of witnesses — broke out and resulted in Smith’s death. Jones gave a voluntary statement concerning the altercation to the police. He was subsequently charged with kicking and beating Smith to death. At trial, Jones argued Smith was the aggressor and that Jones was merely defending himself and the woman. The trial court instructed the jury on these defensive theories, but the jury found Jones guilty of murder.

In this Court, Jones makes a specific evidentiary complaint, arising from his own testimony at trial. Jones argues the State “failed to prove that appellant had intentionally waived or abandoned a known right or privilege.” During Jones’s cross-examination, the prosecutor repeatedly contrasted Jones’s direct testimony concerning the altercation with the statement he had earlier given to the police. The prosecutor identified facts to which Jones had testified, then asked Jones why he had not included those facts in his earlier statement. Among the facts the prosecutor challenged as missing from Jones’s statement were:

• that Jones had come up behind Smith while Smith was on top of the woman and had hit Smith in the chest;
• that Smith was on the ground straddling the woman, striking her with his right hand and trying to hit Jones with his left hand;
• that Smith yelled curses during the incident;
• that after Jones pulled the woman away, he thought the incident had calmed down and dropped his guard;
• that Smith “squared up on” Jones twice, rather than once;
• that Jones looked over his back, afraid Smith was going to attack him;
• that Jones let go of the woman’s hand, rather than her pulling away from him;
• that Jones was nervous about another man on the scene who Jones thought might have been with Smith.

The prosecutor then posed this question to Jones:

Q. By the way, in your statement you don’t say anything about being afraid to go into a bar or her being afraid and you having to protect her and this oath of manhood you’ve given to protect her. There is nothing in this statement about that, is there?
A. Now that it’s coming back to me— you keep reminding me about the statement. I wrote a statement to my lawyer that indicates most all of that that you’ve asked me. I don’t know why you haven’t ever got that.

The prosecutor immediately asked the judge whether he could have the statement (actually a letter to Jones’s counsel) referred to by Jones. Defense counsel objected, stated the document was subject to the attorney-client privilege, and asked for a hearing outside the presence of the jury.

Jones testified at the hearing. He stated that when he made the above-quoted statement at trial, he had not intended to waive his privilege or to give the letter to the prosecutor. Instead, Jones stated, he testified about the letter because he wanted “to let [the prosecutor] know that I did state that at a later time in another statement that I had made to my lawyer.” The trial court concluded that — to accomplish a waiver — it was not necessary that Jones intend to waive the privilege. Instead, it was only necessary that he intentionally make the statement disclosing privileged information. The court found that Jones had made the statement at trial intentionally. Accordingly, the court ruled Jones had waived any claim to privilege, and the prosecutor was permitted to cross-examine Jones using the contents of the letter.

The letter itself, marked as a court exhibit, was made available to the prosecutor, but was not introduced into evidence and is not part of our record. However, the record does indicate the State questioned Jones concerning three excerpts from the letter:

(1) “So by me trying to keep everybody else cool, I lost my own.”
(2) “My intent was to give him what he wanted.”
(3) “It seems all of this was meant to happen. I felt it was his time.”

STANDARD OF REVIEW

We review the trial court’s decision concerning waiver of the attorney-client privilege for an abuse of discretion. Carmona v. State, 947 S.W.2d 661, 664 (Tex.App.Austin 1997, no pet.) (addressing waiver of attorney-client privilege under evidence rule 511).

Waiver of Attorney-Client Privilege

We assume, and the parties do not dispute, that Jones’s letter to his attorney was initially protected by the attorney-client privilege. Our evidence rules provide, however, that such a privilege can be waived by the client:

A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged.

Tex.R. Evid. 511. In this case, the State sought to benefit from the purported waiver of Jones’s attorney-client privilege. Accordingly, the State bore the burden of going forward with evidence that supported a finding of waiver. See Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App.1997). Jones testified under oath at the hearing on waiver. He answered questions posed by both the State and defense.

Jones argues the State did not prove his trial testimony was a knowing relinquishment of his privilege. He argues there is no clear evidence that he “was cognizant of the full ramifications of the attorney-client privilege or that he knowingly and voluntarily relinquished the protections afforded by the privilege.” But this is not the standard under which we review a potential waiver of an evidentiary privilege. On the contrary, the above-quoted rule asserts that such a privilege is waived by voluntary disclosure of the substantive privileged matter. See Tex.R. Evid. 511(1).

We have reviewed the record of the trial court’s hearing on this matter. The evidence is clear that Jones made the statement at trial voluntarily. The trial record indicates the prosecutor was repeatedly impeaching Jones with his statement to the police: Jones’s original statement had not set forth facts supporting the defenses he claimed at trial. In response, Jones told the prosecutor that he had made a second statement that did include the facts the prosecutor was asking about. At the hearing, Jones was asked why he made this statement to the prosecutor. He testified that he wanted to let the prosecutor know he had made another statement, in which he had included facts consistent with his trial testimony. We conclude Jones voluntarily disclosed the contents of the letter sent to his attorney. See id.

We conclude the trial court did not abuse its discretion in finding Jones waived the attorney-client privilege when he asserted that the letter supported his defenses and he was surprised the State did not have it.

Conclusion

We decide Jones’s issue against him, and we affirm the judgment of the trial court.

      . Jones admitted at trial that Smith never hit him.

      . The record indicates Jones wrote this letter to his attorney some three months after Jones had been incarcerated.

      . Jones frames his issue as a complaint that he was required to produce the letter he had given his attorney. However, the entirety of Jones’s argument is focused on the reason he was required to produce the letter: the trial court’s finding that Jones had waived the attorney-client privilege that would otherwise have protected the letter from disclosure. Accordingly, our focus is also on the issue of waiver.

      . Jones testified that he wrote the letter “to clarify my side of the story to my lawyer.”

      . The three excerpts from Jones’s letter that were placed before the jury actually did not support his defensive theories as he claimed they would. Indeed, those excerpts actually contradicted Jones’s testimony that he had acted in defense of himself and his companion. In his appellate brief, Jones himself asserts that these three admissions "were antithetical to his claim that he had acted in self-defense, defense of another, or that he was criminally negligent in causing the death of another.”