author: HERVEY, J., JOHNSON, J.,

text:
    Ex parte Christopher Lynn COWAN, Applicant.
    No. AP-74368.
    Court of Criminal Appeals of Texas.
    Sept. 14, 2005.
    Stephen Christopher Taylor, Humble, for Appellant.
    William C. Bennett, Crim. D.A., Madi-sonville, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION ON REHEARING

HERVEY, J.,

delivered the opinion for a unanimous Court.

We substitute this opinion for our June 22, 2005, opinion, which is withdrawn on the Court’s own motion for rehearing. We filed and set this case to determine whether applicant should have been released to mandatory supervision and to determine the projected maximum release (or discharge) date on his prison sentence. The former issue is moot because applicant has been paroled. We, therefore, address only the latter issue concerning the projected maximum release (or discharge) date on his prison sentence.

The record reflects that applicant was serving an 8-year sentence for a mandatory supervision eligible offense in cause number 0243176D with a calculated begin date of 4/30/84 when he was sentenced to 15 years in cause number 8565 for an offense that was not mandatory supervision eligible. This 15-year sentence was ordered to begin when the 8-year sentence in cause number 0243176D ceased to operate.

Applicant contends that the 8-year sentence in cause number 0243176D ceased to operate on 12/18/90, when he would have been automatically released to mandatory supervision had he not committed the offense in cause number 8565.

[APPLICANT]: We will talk about that in a second. Let me give you the scenario.
During the stay in TDC [applicant] lost a lot of good time, okay? But on December 18th of 1990 he had all of his good time restored. That’s September 15th, 1990. He didn’t — he got some of his good time restored but he didn’t have eight years, he had like seven years and so many months so he couldn’t have been released in September of 1990.
In December of 1990 he got the remainder of his 471 days of good time restored to him and his eligible time, flat time plus good time plus work time on December 18th equaled nine years plus. So as far as we are concerned, without thinking about any type of retroactive— as if the stuff were never taken away from him, I think December 18th, 1990, is a good date that they had to open the door and let him out on his eight year sentence if he never had gotten the fifteen year sentence.
[THE STATE]: Just for Your Honor’s benefit, that happens — the scenario that [applicant] is relaying with a single sentence, where a person gets suddenly a bunch of good conduct restored to them and long overdue with release, that happens with some regularity. People get the good time back and all of a sudden after the sentence—
[APPLICANT]: That procedure has since ceased. But anyway, as of December 18th we think they should have opened up the door and let him out on mandatory supervision on the eight year sentence, without consideration of the additional fifteen that he got in 1988 [in cause number 8565],
TDC’s policy at that particular time was to actually accumulate the sentences together, that he would be serving a twenty-three year sentence instead of an eight year sentence to discharge and then start serving a fifteen year sentence.

Applicant, therefore, claims that the projected maximum release date on the 15-year sentence in cause number 8565 is 12/18/05. This is calculated by adding the 15-year sentence in cause number 8565 to the 12/18/90 date which applicant claims is the date that his 8-year sentence in cause number 0243176D ceased to operate.

[APPLICANT]: Based on the first case ceasing to operate on December 18th, 1990, then I would state that [the discharge date on the 15-year sentence in cause number 8565 would] be December 18th, 2005.

The TDCJ claims that applicant’s sentence in cause number 0243176D ceased to operate on 4/30/92 based on eight calendar years from its calculated begin date of 4/30/84. The TDCJ, therefore, argues that applicant’s projected maximum release date on the 15-year sentence in cause number 8565 is 4/30/07. This is calculated by adding the 15-year sentence in cause number 8565 to the 4/30/92 date which the TDCJ claims is the date that applicant’s 8-year sentence in cause number 0243176D ceased to operate.

Q. [MOVANT]: Is it TDC’s position that the [8-year sentence in cause number 0243176D] would never cease to operate until [it] discharged day for day?
A. [TDCJ OFFICIAL]: Technically, yes, that’s when it would discharge.
Q. Okay. In answering question number three, what is applicant’s projected maximum release date. As far as TDC classification is concerned it’s twenty-three years from the beginning date of April 30th, '84, which makes — as far as TDC classification is concerned, the maximum expiration date on the twenty-three year sentence is April 30th, 2007, correct?
A. That’s correct.
Q. Which is twenty-three calendar years from April 30th, 1984, when the eight year [sentence in cause number 0243176D] began, correct?
A. Yes.
Q. Began, correct?
A. Yes.
Q. So you’re saying that his maximum projected release date . on the fifteen year sentence is April 30th, 2007, correct?
A. That is the maximum.
Q. You’re not taking into consideration the date under mandatory release that you would have had to open the [prison] door and kick him out on the [8-year sentence in cause number 0243176D]?
A. No, sir.
Q. You’re starting that at the very earliest, April 30th, 1992, which is the eight calendar years day for day?
A. For maximum purposes, yes.

The habeas court made numerous findings of fact and conclusions of law. It ultimately found that applicant’s projected maximum release date is 4/30/07 (as claimed by the TDCJ) and recommended that habeas corpus relief be denied.

We first summarize the current law. Article 42.08(b), Tex.Code CRiM. Proc., provides that when an inmate, like applicant, has consecutive sentences, the second sentence commences when the first sentence ceases to operate. See Ex parte Kuester, 21 S.W.3d 264, 271 (Tex.Cr.App.2000) (“completion of the sentence” has same meaning as “cease to operate”). Section 508.150(b), Tex. Gov’t.Code, provides that a sentence ceases to operate for Article 42.08 purposes when it is served out in full day-for-day (actual calendar time) or on the date a parole panel designates as the date an inmate would have been parole eligible had he been sentenced to serve a single sentence. But, Section 508.147(a), Tex. GovYCode, states the general rule that “a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.”

Applicant’s claimed projected maximum release date of 12/18/05 hinges on the claim that his 8-year sentence in cause number 0243176D ceased to operate on 12/18/90 when he would have been automatically released on mandatory supervision on this sentence had he not committed the offense in cause number 8565. This Court in Ex parte Ruthart rejected the claim that mandatory supervision is an event which causes an inmate’s first sentence to cease to operate. See Ex parte Ruthart, 980 S.W.2d 469, 471-74 (Tex.Cr.App.1998) (mandatory supervision did not cause first sentence to cease to operate). This rested in large part on Ruthart’s definition of “maximum term” in former Article 42.18, § 8(c), Tex.Code Cmm. PROC., most of which was reenacted in the Government Code in Section 508.147(a). See Ruthart, 980 S.W.2d at 471 n. 1, n. 2, n. 3; see also Footnote 7.

The habeas court’s findings nevertheless state that “reasonable minds could conclude that Ruthart was wrongly decided” because Ruthart placed “considerable stock” in the phrase “maximum term” in former Article 42.18, § 8(c), without noticing that the term “maximum” was not included in the statute when it was reenacted in the Government Code in Section 508.147(a). See Ruthart, 980 S.W.2d at 472-73. But, Ruthart was applying and interpreting former Article 42.18, § 8(c), which contained the term “maximum” and which is the law applicable to this case.

In addition, applying and construing only the word “term” in Section 508.147(a), and deciding, contrary to Ruthart, that “term” for Section 508.147(a) purposes includes the first sentence in a series of sentences creates its own problems as well. But see Ruthart, 980 S.W.2d at 478 (“maximum term” for purposes of former Article 42.18, § 8(c), is “the last sentence [an inmate] must serve in the series”). Under this construction of “term,” mandatory supervision still would not be an event that would cause the first sentence to cease to operate as that is not one of the things mentioned in Section 508.150 as causing a sentence to cease to operate. See Ruthart, 980 S.W.2d at 471-72.

If “term” for Section 508.147(a) purposes applied to the first sentence in a series of sentences, it would be possible for an inmate to “spend twenty or thirty years on [mandatory supervision], living and working in the community, a rehabilitated and contributing member of society. When at last his [mandatory supervision] is complete and his sentence discharges, he must then be returned to prison to begin serving his second sentence.” See Kuester, 21 S.W.3d at 267. We decline to adopt this construction and we adhere to our prior decisions that a sentence ceases to operate when it is served out in full day-for-day or on the date a parole panel designates as the date an inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence. See Kuester, 21 S.W.3d at 270-71; Ruthart, 980 S.W.2d at 473-74; § 508.150(b).

Habeas corpus relief is denied.

JOHNSON, J., filed a concurring opinion.

JOHNSON, J.,

filed a concurring opinion.

I join the judgment of the Court because our current case law and the version of the mandatory-supervision statute that controls in this case require the majority’s outcome. Whether intentionally or inadvertently, when it created mandatory supervision the Legislature did not include it among the events that cause a sentence to “cease to operate” and trigger the commencement of a consecutive sentence. However, changes in the statute have now created “discretionary mandatory supervision,” an oxymoron.

The current statute makes mandatory supervision a fraternal twin of parole; it is parole in everything but name and eligibility rules and both multiplies and complicates the work of the parole panels. Given that reality, the issue of whether discretionary mandatory supervision belongs among the events that triggers the commencement of a consecutive sentence, or should even continue to exist, is ripe for re-examination.

      . Applicant was serving this sentence concurrently with three other 8-year sentences for mandatory supervision eligible offenses in cause numbers 0242063D, 0242065D and 0242158D. These offenses occurred before September 1, 1987.

      . The habeas court's findings state that the calculated begin date on this sentence is 10/5/84. The record, however, does not support this finding. Applicant claims and TDCJ records confirm that the calculated begin date on this sentence is 4/30/84.

      . Under the law applicable to applicant’s case, had applicant not committed the offense in cause number 8565, he would have been automatically released on mandatory supervision for the offense in cause number 0243176D when his good conduct time added to his calendar time equaled his sentence (8 years) for that offense. See Acts 1985, 69th Leg., R.S., ch. 427, § 2, 1985 Tex. Gen. Laws 1549-55, repealed by Acts 1997, 75th Leg., R.S., ch. 165, § 12.22, 1997 Tex. Gen. Laws 443.

      . Article 42.08(b) states:
      If a defendant is sentenced for an offense committed while the defendant was an inmate in the institutional division of the Texas Department of Criminal Justice and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the sentence for the subsequent offense to commence immediately on completion of the sentence for the original offense.

      . Section 508.150(b) states:

        For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and sentence of an inmate sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate:
      (1) when the actual calendar time served by the inmate equals the sentence imposed by the court; or
      (2) on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.

      . Section 508.147(a) states:
      Except as provided by Section 508.149, a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.

      . We further note that Vernon’s Ann.Civ.Stat., Article 6181-1(4), which may also be applicable to this case, defines an inmate’s "term” as the "aggregate of the several terms” when an inmate like applicant is serving consecutive sentences. See Acts 1977, 65th Leg., p. 932, ch. 347, § 3, repealed by Acts 1989, 71st Leg., p. 968, ch. 212, § 3.03; see also Acts 1987, 70th Leg., p. 1890, ch. 384, § 8 (change in law to mandatory supervision statute "applies only to a prisoner sentenced to serve consecutive sentences if each sentence in the series is for an offense committed on or after [September 1, 1987]” and former law applies "if any sentence in the series is for an offense committed before the effective date of this Act”). This may even be dispositive of applicant’s claim that his 8-year sentence in cause number 0243176D ceased to operate on 12/18/90 when he would have been automatically released on mandatory supervision on this sentence had he not committed the offense in cause number 8565.

        .Compare former Article 42.18, § 8(c), (providing that inmate may be released to mandatory supervision when the calendar time he has served plus any accrued good conduct time equal the "maximum term” to which he was sentenced) (emphasis supplied) with current § 508.147(a) (providing that inmate may be released to mandatory supervision when the calendar time he has served plus any accrued good conduct time equal the “term” to which he was sentenced) (emphasis supplied).

        .Ruthart decided that, when an inmate is serving consecutive sentences, his statutory "maximum term” for former Article 42.18, § 8(c), purposes is "the last sentence he must serve in the series.” See Ruthart, 980 S.W.2d at 473. According to Ruthart, this definition of "maximum term” was necessary to resolve an apparent conflict between former Article 42.18, § 8(c), and former Article 42.18, § 8(d), which is now codified in Section 508.147(a). Ruthart, 980 S.W.2d at 472, stated:
      We are mindful that § 8(c) is a mandatory statute: it states that an inmate shall be released to mandatory supervision when his accumulated time equals the “maximum term” to which he was sentenced. Section 8(d) appears to conflict with that mandate by preventing an inmate with consecutive sentences from beginning his second sentence until his first sentence ceases to operate. To resolve this conflict, we consider the meaning of the phrase "maximum term” in § 8(c).
      (Emphasis in original).

      . Arguably, the "plain” language of Section 508.147(a) applies only to an inmate who has been sentenced to a single term and does not apply to an inmate serving multiple sentences. This interpretation would also resolve any conflict between former Article 42.18, § 8(c), and former Article 42.18, § 8(d). See Ruthart, 980 S.W.2d at 472, see also Footnote 8. This interpretation of Section 508.147(a) would also dispose of applicant’s claim that his eligibility for mandatory supervision for the offense in cause number 0243176D caused the sentence for that offense to cease to operate.

      . We also note that the Legislature has not changed these decisions. See State v. Medrano, 67 S.W.3d 892, 902-03 (Tex.Cr.App.2002) (legislative silence after judicial interpretation of a statute is some indication that the Legislature approves of this interpretation).


source: Caselaw Access Project

author: WOMACK, J., MEYERS, J.,

license: Public Domain

text:
    Robert Lee ORTEGA, Appellant, v. The STATE of Texas.
    No. PD-0819-04.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 14, 2005.
    Randy Mack, Corpus Christi, for Appellant.
    Jeffrey L. Van Horn, First Asst. S.A., Matthew Paul, State’s Attorney, Austin, for State.
   WOMACK, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

The issue in this case is whether a trial for assault of a public servant, after the defendant had been tried for resisting an arrest by the same public servant, denied the defendant Due Process of Law by violating the Double Jeopardy Clause of the Fifth Amendment (“No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb”). We hold that the offenses were not “the same of-fence” under the Double Jeopardy Clause.

The indictment for assault of a public servant alleged that on or about November 3, 2000, in Refugio County, the appellant intentionally and knowingly caused bodily injury to Doug Carter by striking Doug Carter with his hand, knowing Carter was a public servant (specifically, a peace officer) and while Carter was lawfully discharging the official duty of arresting him, and in retaliation for and on account of the exercise of official power and the performance of official duty.

The trial began on April 22, 2002. In the first two days of the trial, the court arraigned the appellant and selected a jury. On the morning of the third day, after the jurors were sworn, the appellant’s attorney told the court that he “was told just a minute ago that my client had actually already been convicted in county court for resisting arrest ...; therefore, it would seem ... that this trial actually might be barred by double jeopardy.” He “object[ed] to proceeding at this time.” The court overruled his objection, and the trial continued.

The State presented the testimony of Officer Doug Carter of the Woodsboro Police Department, who tried to stop Robert Lee Ortega after he saw Ortega commit several traffic offenses while driving on the streets of Woodsboro. Using the emergency lights, the siren, and the “air horn” on his patrol car, he chased Ortega’s car down three streets, but Ortega did not stop until he got to his mother’s house. When the officer drew his pistol and ordered Ortega to get on the ground, Ortega refused to comply and shouted obscenities. The officer, seeing that Ortega was not armed, put his pistol back in its holster. He testified that he grabbed Ortega, told him he was under arrest, and tried to handcuff him, but Ortega “pulled away and began striking me” with his fists. He hit Carter in the body and face. After a deputy sheriff arrived and joined the struggle, Ortega hit Carter in the chin with his fist. Carter got a cuff from one set of handcuffs on one of Ortega’s arms, and a cuff from another set on the other arm, but he could not get the arms cuffed together until a third officer arrived and helped to take Ortega to the ground. Although handcuffed, Ortega continued to resist being placed in Carter’s patrol car until Carter showed him some pepper spray. The other two officers also testified.

After the State rested, the appellant presented to the court certified copies of complaints, informations, and judgments of two prosecutions of the appellant in the county court. One was for evading arrest by fleeing from Officer Doug Carter, which is not relevant to this appeal. The other was for resisting an arrest by Officer Doug Carter. Each information alleged that the appellant committed the offense in Refugio County on or about November 4, 2000. On December 20, 2000, the appellant had pleaded nolo contendere to each offense, and the county court had found him guilty and sentenced him to 46 days in jail in each case. The appellant told the district court that “we’re raising a double jeopardy defense ... and we’ll object to the — object to the trial, I guess.”

The court ruled, “With regard to your plea of double jeopardy, I will overrule that motion.”

The appellant presented no evidence before the jury. The jury found him guilty of assault of a public servant. At the punishment stage, the State pleaded and proved that the appellant was an habitual felony offender, and the jury assessed punishment of 75 years in prison.

On the appeal that followed, the appellant presented a point that the “trial court erred in not sustaining Defendant’s plea of Double Jeopardy,” and a point that the trial court erred in not instructing the jury on the lesser-included offense of resisting arrest.

The Thirteenth Court of Appeals decided the appeal on double-jeopardy grounds. It said that the state law for lesser-included offenses was not adequate for that task.

By statute, an offense is a lesser included offense, among other things, if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. Tex.Crim. PROc.Code Ann. art. 87.09(1) (Vernon 1981). In double jeopardy scenarios, however, it is not enough merely to compare statutory elements.
We are to consider time, place, identity, manner and means in determining whether several offenses are the same.

It held, “Because we conclude that resisting arrest and assault on a peace officer are the ‘same offense’ for double jeopardy purposes in this case and because we find that appellant has already been tried and convicted for resisting arrest, we reverse the judgment of the trial court and order a judgment of acquittal on the assault charge.” The Court reasoned:

At trial, the State relied on appellant’s conduct in resisting arrest to prove assault on a peace officer. Officer Carter testified that appellant struck at him with his hand as he was attempting to handcuff appellant to place him under arrest. This testimony was corroborated by Deputy Horner, who testified that appellant struck Officer Carter as Officer Carter was trying to place him under arrest. Thus, in the assault trial, the State relied on and proved the same facts — showing an intentional use of force against the officer — that were necessary to prove the resisting arrest charge. The State thus established that appellant committed the offense of resisting arrest for the second time. This is not allowed. It is clear from the indictment and the reporter’s record that the State was obligated to and did, in fact, prove that the assault occurred while Officer Carter was in the process of arresting appellant. Because appellant had already been convicted for conduct that was a necessary element of the offense for which he was later charged and subsequently convicted, his claim of double jeopardy must be sustained.

The State petitioned for discretionary review. It presented three issues. It enumerated the first two, which had to do with lesser-included offenses. They asked specifically, “Whether the offense of resisting arrest is a lesser-included offense of aggravated assault on a peace officer,” and more generally “Whether the evidence presented or facts proven are relevant to the determination of whether one offense is a lesser-included offense of another.” The petition also pointed out a third, different issue: “Moreover, if we go forward with the applicable ... test, which is essential to a double jeopardy analysis ... [it] differs from the lesser-included offense definition. ... Moreover, the offenses are not the same for purposes of double jeopardy.” We granted review.

We shall not address the State’s first two issues. The third issue is the one on which the Court of Appeals’ decision rested, and it is more specific to the jeopardy issue that is presented.

We believe that the Court of Appeals’ analysis is not in accord with the interpretation of the Double Jeopardy Clause that the Supreme Court of the United States has adopted. The Court of Appeals held that there was a double-jeopardy violation because “in the assault trial, the State relied on and proved the same facts — showing an intentional use of force against the officer — that were necessary to prove the resisting arrest charge. The State thus established that appellant committed the offense of resisting arrest for the second time. This is not allowed.” This reasoning is essentially that of Grady v. Corbin, which the Supreme Court has overruled.

Thomas Corbin drove a vehicle that crossed the center line of a highway and struck another vehicle, killing the driver and injuring her passenger. He was convicted of driving while intoxicated and failing to keep right of the median. Then he was indicted for homicide and assault offenses. He moved to dismiss the indictment on double jeopardy grounds.

The Corbin Court recognized that “the facts and contentions raised here mirror almost exactly those raised in” another of its cases, Illinois v. Vitale, in which it had “held that the second prosecution was not barred under the traditional Blockburger test because each offense ‘require(d) proof of a fact which the other (did) not.’ See Blockburger [v. United States ] 284 U.S. [299 (1932) ], at 304 [52 S.Ct. 180, 76 L.Ed. 306].”

But the Corbin Court went on to add:

[A] subsequent prosecution must do more than merely survive the Blockbur-ger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of the offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an “actual evidence” or “same evidence” test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.”

The Court áaid that “the State has admitted that it will prove the entirety of the conduct for which Corbin was committed— driving while intoxicated and failing to keep right of the median — to establish essential elements of the homicide and assault offenses. Therefore the Double Jeopardy Clause bars this successive prosecution .”

As we have said, the analysis in Grady v. Corbin was very much like that in the Court of Appeals’ opinion in this case. The Supreme Court has renounced that analysis.

Three years after Grady v. Corbin, the Court said in United States v. Dixon:

We have concluded, however, that Grady [v. Corbin ] must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the “same offence,” U.S. Const., Arndt. 5, has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The “same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.

The Dixon Court said that “Grady was not only wrong in principle; it has already proved unstable in application.” It reached “the conclusion that Grady is a continuing source of confusion and must be overruled.”

To the dissenters’ argument that the Blockburger analysis was acceptable to decide when the Double Jeopardy Clause prohibited successive punishment but not acceptable to decide when the Clause prohibited successive prosecution, the Court replied that “there is no authority, except Grady, for the proposition that it has different meanings in the two contexts. That is perhaps because it is embarrassing to assert that the single term ‘same offence’ (the words of the Fifth Amendment at issue here) has two different meanings— that what is the same offense is yet not the same offense.”

The courts of Texas are bound to follow the Supreme Court’s rule that Fifth Amendment jeopardy questions must be resolved by application of the Blockburger test, which compares elements of offenses — not conduct.

This brings us to another statement in the Court of Appeals’ opinion that was not correct — that the “appellant had already been convicted for conduct that was a necessary element of the offense for which he was later charged and subsequently convicted.” A comparison of the elements of the offenses demonstrates the error.

The resisting arrest offense of which the appellant had first been convicted required proof that:

1. A person
2. intentionally
3. prevented or obstructed a peace officer from effecting an arrest,
4. knowing the person was a peace officer,
5. by using force against the peace officer or another.

The conviction for the assault offense that is being appealed required proof that:

1. A person
2. intentionally, knowingly, or recklessly
3. caused bodily injury to another
4. who the person knew was a public servant
5. (a) while the public servant was lawfully discharging an official duty, or
(b) in retaliation or on account of an exercise of official power or performance of an official duty as a public servant.

The offense of assault required proof of at least one fact that the offense of resisting arrest did not: that the appellant caused bodily injury. The offense of resisting arrest required proof of a fact that the offense of assault did not: that the appellant prevented or obstructed a peace officer from effecting an arrest.

By the Blockburger rule, the offenses were not the same. There was no violation of the Double Jeopardy Clause.

The Court of Appeals’ opinion also contained a factual mistake. It said that the evidence of force in the resisting arrest prosecution was the same as that in the assault prosecution. The force that was alleged in the resisting arrest case was “pulling away,” while that in the assault was “striking.” We mention this point, not because it affects the double jeopardy analysis, but because it might affect other issues that the Court of Appeals will address on remand.

We reverse the judgment of the Court of Appeals and remand the case to that court for the consideration of the appellant’s other points of error.

PRICE and COCHRAN, JJ., concurred in the judgment.

MEYERS, J., filed a dissenting opinion.

MEYERS, J.,

dissenting.

In all honesty, I did not vote to grant this petition for discretionary review. The State Prosecuting Attorney’s grounds for review did not seem germane to the court of appeals’ opinion. Nevertheless, our Court decided to grant this case, and for all of you curious souls wondering what are the actual grounds for review, they’re as follows:

1) Whether the offense of resisting arrest is a lesser-included offense of aggravated assault of a peace officer;
2) Whether the evidence presented or facts proven are relevant to the determinations of whether one offense is a lesser-included offense of another.

Surely this is a problem concerning charge error? Wrong. It’s double jeopardy. The majority has decided to analyze this case on an argument the State Prosecuting Attorney points out within the body of his brief to this Court. When this Court realized that the State Prosecuting Attorney had brought issues that were not dispositive of the double jeopardy question that the court of appeals raised in its analysis, we should have dismissed the petition as improvidently granted. Irrespective of these procedural abnormalities, I also dissent from the majority’s double jeopardy analysis and the outcome in this case. I believe that the court of appeals got it right, but for the wrong reasons.

I agree with the majority opinion in that I understand that the Blockburger test is the proper test that the Supreme Court of the United States has set forth in order to perform a Fifth Amendment double jeopardy analysis. I concede also that the court of appeals in this case erroneously used the “same conduct” reasoning of Grady v. Corbin, which the United States Supreme Court later renounced. However, I believe that this case does not fall under the strict Blockburger elements of the offense analysis for several reasons.

In this case, the State is attempting to prove one of the elements of the crime of resisting arrest as a separate crime. The “use of force” element of the crime of resisting arrest can encompass the crime of assault. In some, but not all cases, the actions of a defendant when resisting arrest could be characterized as an assault because they cause bodily injury. Here, the actions of the Appellant that the State contends constitute the assault charge, i.e. that he repeatedly struck the officer and caused bodily injury, are also the facts which constitute the “use of force” element of the resisting arrest charge. The State should not be able to charge the defendant with the separate crime of assault when they have relied on the same facts to prove the “use of force” element in the resisting arrest conviction. This is analogous to the reasoning which precludes the State from obtaining a separate conviction for the underlying predicate felony in capital murder cases. The same facts which prove an element of the capital murder offense, i.e. the felony predicate element, cannot be used to secure a separate felony conviction.

For the above reasons, I must refrain from joining the majority’s opinion and respectfully dissent.

      . Ortega v. State, 131 S.W.3d 698, 701-02 (Tex.App.-Corpus Christi-Edinburg 2004).

      . Id., at 700.

      . Id., at 702-03 (footnote and citation omitted).

      . Pet. at 3.

      . Id., at 9.

      . Id., at 10.

      . 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

      . Id., at 511-14, 110 S.Ct. 2084.

      . 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).

      . Corbin, 495 U.S., at 515, 110 S.Ct. 2084.

      . Id., at 521, 110 S.Ct. 2084 (footnotes omitted).

      . Id., at 523, 110 S.Ct. 2084.

      . 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

      . Id., at 709, 113 S.Ct. 2849.

      . Id., at 710, 113 S.Ct. 2849.

      . Id., at 704, 113 S.Ct. 2849.

      . See Tex. Penal Code § 38.03(a).

      . See id., § 22.01(a)(1) & (b)(1).

      . What is ironic in this whole situation is that this case involves a technical analysis of a number of points of law and fact. In attempting to arrest Mr. Ortega for the traffic offense, the officers claim he struck them while pulling away. While the County Attorney saw it as resisting arrest and obtained a guilty plea and a fine, six months later, the District Attorney saw it as aggravated assault on a police officer. While Mr. Ortega may not be receiving any citizenship awards in Refugio county, (the record reveals that this is not his first offense, and that he shouted obscenities and refused to comply with the officers who arrested him in his mother's front yard), he nevertheless is going to prison for seventy-five years because he made an illegal turn in his car. But this is a technicality, similar to whether Mr. Ortega was pulling or pushing away from the police officer.

      . Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

      . Texas Penal Code Section 38.03, entitled Resisting Arrest, Search or Transportation, states:
      (a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against &e peace officer or another (emphasis added).

        .See Texas Penal Code Section 19.03, Capital Murder, which states in relevant part:
      (a) a person commits an offense if he commits murder as defined under Section 19.02(b)(1) and:
      (2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation.


author: HOLLIS HORTON, Justice.

text:
    Beth Ann ROBERTS and Joe Wayne Church, Appellants, v. TXU ENERGY RETAIL COMPANY LP, and TXU Electric Delivery Company f/k/a Oncor Electric Delivery Company, Appellees.
    No. 09-05-017 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted June 29, 2005.
    Decided Aug. 25, 2005.

      Douglas J. McCarver, Nacogdoches, for appellants.
    Foster Reese, III, Maurice Owens, Jr., Hunton & Williams, LLP, Dallas, for ap-pellees.
    Before GAULTNEY, KREGER and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

Appellants Beth Ann Roberts and Joe Wayne Church present this appeal from a summary judgment that they take nothing on their negligence suit against appellees TXU Energy Retail Company LP, and TXU Electric Delivery Company f/k/a On-cor Electric Delivery Company (collectively referred to as TXU). In a sole issue, appellants contend the trial court erred in granting TXU’s motion for summary judgment because there are genuine issues of material fact. We conclude TXU was entitled to summary judgment as a matter of law and affirm the judgment.

Mary and Eustace Butler were the foster parents of appellants’ two sons. On November 1, 2002, TXU disconnected the Butlers’ electricity for nonpayment of the electrical bill. That evening, the Butlers used candles to light their home. Due to the handling of a candle, a fire started and destroyed the Butlers’ home. Tragically, appellants’ sons were killed in the fire.

Appellants brought suit against TXU, claiming TXU’s negligence in disconnecting the Butlers’ electricity was the proximate cause of their children’s deaths. TXU moved for summary judgment on traditional grounds, asserting they were entitled to judgment as a matter of law because appellants could not establish TXU’s conduct proximately caused their children’s deaths. See Tex.R. Civ. P. 166a(c). Appellants attempted to raise genuine fact issues by arguing TXU’s disconnection of electricity caused the fire, and it was foreseeable that the Butlers would use candles for lighting and would create a danger. The trial court granted TXU’s motion for summary judgment.

In a traditional summary judgment motion brought under Rule 166a(c), the mov-ant has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). We view all evidence in a light favorable to the nonmovant, and we indulge every reasonable inference in the nonmovant’s favor. Id. at 215.

A defendant who disproves an essential element of the plaintiffs cause of action as a matter of law is entitled to summary judgment. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex.1995). “After the defendant produces evidence entitling it to summary judgment, the burden shifts to the plaintiff to present evidence creating a fact issue.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996).

The elements of a negligence cause of action are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Boys Clubs, 907 S.W.2d at 477. Proximate cause is the only element at issue here. The two elements of proximate cause are cause in fact and foreseeability. Id. Cause in fact is established when the act or omission was a substantial factor in bringing about the injury, and without it, the harm would not have occurred. Id. Foreseeability “requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Id. at 478.

At some point in the causal chain, the defendant’s conduct may be too remotely connected with the plaintiffs injury to constitute legal causation. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775(Tex.1995). In Union Pump, a pump caught fire at a Texaco Chemical Company facility. Id. at 774. Allbritton, an employee of Texaco Chemical, assisted in extinguishing the fire. Id. Two hours after the fire was extinguished, an emergency required Allbritton to go to another location at the facility. Id. Upon returning from that location, instead of taking a safer route, Allbritton walked across a pipe rack that was still wet from extinguishing the fire and was injured when she fell. Id. She alleged that Union Pump, by manufacturing a defective pump that caused the fire, which in turn led to the pipe rack’s being wet an slippery, caused her injuries. Id. The Supreme Court held that the circumstances surrounding Allbritton’s injuries were too remotely connected with the defective pump to constitute the cause in fact of her injuries. Id. at 776. The pump, by causing a fire, did no more than create the condition that made her injuries possible. Id.

In Bell v. Campbell, two cars collided, and a trailer attached to one of them disengaged and overturned into the opposite lane. 434 S.W.2d 117, 119 (Tex.1968). A number of people gathered, and three of them were attempting to move the trailer when they were struck by another vehicle. Id. at 119. The Supreme Court held that the parties to the first accident were not a proximate cause of injuries in the second accident because:

All acts and omissions charged against respondents had run their course and were complete. Their negligence did not actively contribute in any way to the injuries involved in this suit. It simply created a condition which attracted [the plaintiffs] to the scene, where they were injured by a third party.

Id. at 122. The Supreme Court’s analysis in Bell v. Campbell remains viable, and was recently applied in IHS Cedars Treatment Center of Desoto, Texas, Inc. v. Mason, where the Supreme Court held that a patient’s early discharge from a hospital was not the cause in fact of injuries the patient sustained in an automobile accident occurring approximately twenty-eight hours after discharge. 143 S.W.3d 794, 799, 800, 802 (Tex.2004).

Here, the circumstances surrounding the children’s deaths were too remotely connected with TXU’s disconnection of electricity to constitute the cause in fact of the deaths. See Union Pump, 898 S.W.2d at 775; Riojas v. Lone Star Gas Co., 637 S.W.2d 956, 959(Tex.App.-Fort Worth 1982, writ ref d) (holding defendant’s act of disconnecting gas service for nonpayment was not proximate cause of plaintiffs’ carbon monoxide poisoning). TXU’s disconnection of electricity was not a substantial factor in bringing about the children’s deaths because the children died as a result of a fire caused by the handling of a candle. Merely creating the condition that makes harm possible falls short, as a matter of law, of satisfying the substantial factor test. Union Pump, 898 S.W.2d at 776. We find there is no genuine fact issue concerning the cause in fact element. Therefore, we affirm the summary judgment.

AFFIRMED.

      . Appellants also originally sued a third defendant, TXU Corp., but later omitted TXU Corp. from their second amended petition. See Tex.R. Civ. P. 65; see also Randolph v. Jackson Walker L.L.P., 29 S.W.3d 271, 274 (Tex.App.-Houston [14th Dist] 2000, pet. denied).


author: PER CURIAM.

text:
    Waynetta Demetris ROBERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0585-CR.
    Court of Appeals of Texas, Amarillo.
    Sept. 7, 2005.

      Russell Wilson II, Law Office of Russell Wilson II, Dallas, TX, for Appellant.
    Lynn Switzer, District Attorney, Pampa, TX, for Appellee.
    Before QUINN, C.J., and REAVIS, and CAMPBELL, JJ.
   ON STATE’S MOTION TO DISMISS

PER CURIAM.

Pending before the court is the State’s motion to dismiss this appeal. Waynetta Demetris Roberson, appellant, perfected her appeal after being sentenced in open court on November 10, 2004. According to the State’s motion and affidavit attached thereto, appellant disappeared during her trial and the trial continued in her absence. However, the record discloses that she was captured approximately three years later and returned to Wheeler County. So, too was she present for the pronouncement of her sentence in open court on the 10th of November. Though having been recaptured before the time period for perfecting an appeal began to run, the State argues that dismissal is appropriate under Texas Rule of Appellate Procedure 42.4. We disagree.

According to Rule 42.4, an appellate court “must dismiss an appeal on the State’s motion, supported by affidavit, showing that the appellant has escaped from custody pending appeal and that to the affiant’s knowledge, the appellant has not, within ten days after escaping, voluntarily returned to lawful custody_” Tex. R.App. P. 42.4 (emphasis added). Here, while the record indicates that appellant escaped from custody during trial and the trial continued in her absence, the trial court did not pronounce sentence in open court until her capture and return to Wheeler County. Thereafter, she perfected her appeal. In short, nothing before us illustrates that she had absconded for any period of time during which her appeal pended, and it is this fact that distinguishes our situation from those in Ike v. State, 998 S.W.2d 323, 324 (Tex.App.Houston [1st Dist.] 1999, no pet.) and Williams v. State, No. 05-03-01772-CR, 2004 WL 1110533 (Tex.App.-Dallas, May 19, 2004, no pet.) (not designated for publication). In both Ike and Williams, the appellant remained at large after their trial counsel perfected appeal. See McGee v. State, 445 S.W.2d 187, 188 (Tex.Crim.App.1969) (holding that escape before sentence does not affect the right of appeal nor jurisdiction of appellate court).

Because the elements of Rule 42.4 have not been satisfied, we deny the State’s motion to dismiss.


author: KEM THOMPSON FROST, Justice.

text:
    RAMCO OIL & GAS, LTD. and Ramco Energy PLC, Appellants/Cross-Appellees, v. ANGLO DUTCH (TENGE) L.L.C. and Anglo-Dutch Petroleum International, Inc., Appellees/Cross-Appellants.
    No. 14-04-00433-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 8, 2005.

      Christopher M. Odell, Michael K. Swan, Houston, for appellants/cross-appellees.
    Neil C. McCabe, John O’Quinn, Houston, for appellees/cross-appellants.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   ORDER

KEM THOMPSON FROST, Justice.

Appellants/cross-appellees Rameo Oil & Gas, Ltd. (“Rameo Oil”) and Rameo Energy PLC (“Rameo Energy”) have filed a motion under Rule 24.4(a) of the Texas Rules of Appellate Procedure seeking appellate review of what they allege is an excessive amount of security required by the trial court to supersede the judgment from which they appeal in this case. For the reasons stated herein, we require that the amount of bond, deposit, or other security necessary to supersede the trial court’s judgment be decreased as set forth below. To this extent, we grant in part the Rule 24.4(a) motion filed by Rameo Oil and Rameo Energy (hereinafter collectively referred to as the “Judgment Debtors”); otherwise, we deny this motion. We grant the emergency motion to lift this court’s stay of execution on the trial court’s judgment, filed by appellees/cross-appellants Anglo-Dutch (Tenge) L.L.C. and Anglo-Dutch Petroleum International, Inc. (hereinafter collectively referred to as the “Judgment Creditors”).

I. Factual and PROCEDURAL Background

On April 1, 2004, the trial court signed an amended judgment against the Judgment Debtors and in favor of the Judgment Creditors. The Judgment Debtors are appealing this judgment, in which they have been held jointly and severally liable for $6.4 million in damages and jointly and severally hable with Halliburton Energy Services, Inc., for $9.8 million in attorney’s fees as well as all costs of court.

Eight months after the trial court signed the amended judgment, the Judgment Debtors filed a motion asking the trial court to lower the amount of the bond needed to supersede this judgment to $200,000 and asserting that posting a bond in excess of this amount would cause the Judgment Debtors substantial economic harm. See Tex. Crv. Prac. & Rem.Code Ann. 52.006(c) (Vernon Supp.2004) (stating that, on a showing by the judgment debtor that the judgment debtor is likely to suffer substantial economic harm if required to post security in an amount required under section 52.006(b), the trial court shall lower the amount of the security to an amount that will not cause the judgment debtor substantial economic harm); Tex.R.App. P. 24.2(b) (stating that the trial court must lower the amount of security required by Rule 24.2(a) to an amount that will not cause the judgment debtor substantial economic harm if, after notice to all parties and a hearing, the court finds that posting a bond, deposit, or security in the amount required by Rule 24.2(a) is likely to cause the judgment debtor substantial economic harm).

After allowing discovery concerning the Judgment Debtors’ net worth, the trial court heard the Judgment Debtors’ motion on April 29, 2005. At the conclusion of that evidentiary hearing, the trial court signed an order setting the amount of bond, deposit, or security required to supersede the judgment (hereinafter “Security Amount”) at $7.505 million, which the court determined was 50 percent of “Ram-eo’s” 2003 net worth in U.S. Dollars. See Tex. Civ. Prac. & Rem.Code Ann. 52.006(b) (Vernon Supp.2004) (stating that, notwithstanding any other law or rule of court, the Security Amount for a money judgment must not exceed the lesser of (1) 50 percent of the judgment debtor’s net worth, or (2) $25 million); Tex.R.App. P. 24.2(a)(1) (stating that, for a money judgment, the Security Amount must not exceed the lesser of (a) 50 percent of the judgment debt- or’s current net worth or (b) $25 million). In this order, the trial court also suspended enforcement of its April 1, 2004 judgment pending appellate review of the proper Security Amount. See Tex.R.App. P. 24.4.

Days after the April 29 order, the Judgment Debtors filed in this court an emergency motion to review the order setting the Security Amount at $7.505 million. See Tex. Civ. PRac. & Rem.Code Ann. 52.006(d) (Vernon Supp.2004); Tex.R.App. P. 24.4. The Judgment Debtors asked this court to lower the Security Amount to $200,000. The Judgment Debtors also requested this court to issue a temporary order staying execution on the judgment pending this court’s resolution of the motion to review the Security Amount. See Tex.R.App. P. 24.4(c). This court granted this relief and stayed execution on the judgment pending our decision on the motion. See id.

On June 24, 2005, the Judgment Creditors filed an emergency motion to lift this court’s temporary stay based on the alleged threat that the Judgment Debtors would dissipate their assets. The Judgment Creditors also cited a change in the Judgment Debtors’ financial condition since April 29, 2005. On June 28, 2005, this court ordered this case abated and remanded to the trial court for the taking of evidence and the entry of findings of fact. See Tex.R.App. P. 24.4(d). Specifically, we ordered the trial court to conduct a hearing and make findings of fact and conclusions of law concerning the changes in circumstances, if any, concerning the Judgment Debtors’ net worth. See Tex. R.App. P. 24.3(a)(2) (trial court may modify amount of security if circumstances change); Tex.R.App. P. 24.4(b) (review of the sufficiency or excessiveness of the amount of security may be based both on conditions as they existed at the time of the trial court’s order and on changes in those conditions). In this order, we stated that the trial court must lower the Security Amount to an amount that will not cause the Judgment Debtors substantial economic harm if the court finds that posting the required bond is likely to cause substantial economic harm. Tex.R.App. P. 24.2(b). Furthermore, we instructed the trial court that, when the trial court determines a judgment debtor’s net worth for purposes of setting a Security Amount, the court must state with particularity the factual basis for its determination of the debt- or’s net worth. Tex.R.App. P. 24.2(c)(3).

On July 21, 2005, the trial court conducted a hearing under this court’s abatement order. After hearing evidence and the argument of counsel, the trial court issued findings of fact and conclusions of law stating, among other things, the following:

• The Judgment Debtors’ financial condition has improved since the trial court set the Security Amount on April 29, 2005.
• “The net worth of Rameo,” based on its market capitalization, is $20 million.
• Although a net worth of $20 million would ordinarily require a reduction in the Security Amount to $10 million, the trial court left the Security Amount needed to supersede the judgment at $7.505 million because the Judgment Creditors agreed that this amount was sufficient.
• Posting a $7.505 million supersedeas bond will not cause “Rameo” substantial economic harm.
• Changes in circumstances do not warrant a modification of the Security Amount set in the trial court’s April 29, 2005 order.

II. STANDARDS OF REVIEW

We review the alleged excessiveness of the trial court’s determination of the amount of security under Rule 24.4 of the Texas Rules of Appellate Procedure using an abuse-of-discretion standard. See In re Kajima Intern., Inc., 139 S.W.3d 107, 112 (Tex.App.-Corpus Christi 2004, orig. proceeding). Likewise, we review the “substantial economic harm” determination under this standard. See Isern v. Ninth Court of Appeals, 925 S.W.2d 604, 606 (Tex.1996) (stating that trial court had discretion to allow alternate security under former Texas Rule of Appellate Procedure 47 and section 52.002 of the Texas Civil Practice and Remedies Code). Generally, the test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the trial court acted arbitrarily and unreasonably. See McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.1996). However, a trial court has no discretion in determining what the law is and applying the law to the facts. See Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 623-24 (Tex.2005). A failure by the trial court to analyze or apply the law correctly is an abuse of discretion. Id.

Furthermore, under section 52.006, the trial court’s discretion is limited by the requirement that the Security Amount cannot exceed the limit set forth in section 52.006(b) or an amount that is likely to cause the judgment debtor substantial economic harm. See Tex. Crv. PRac. & Rem. Code Ann. 52.006(b), (c); Bocquet v. Herring, 972 S.W.2d 19, 20-21 (Tex.1998). Therefore, the trial court abuses its discretion if the evidence is legally or factually insufficient to support its findings under section 52.006(b) or (c). See Bocquet, 972 S.W.2d at 20-21; Bass v. Walker, 99 S.W.3d 877, 883 (Tex.App.-Houston [14 Dist.] 2003, pet. denied) (although court reviews sanctions under abuse-of-discretion standard, if there is legal or factually insufficient evidence to support the trial court’s fact finding under the relevant legal standard, then the trial court abused its discretion); Hunt v. Baldwin, 68 S.W.3d 117, 135 n. 8 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

As to the net-worth determination and the determination of whether the Judgment Debtors are likely to suffer substantial economic harm, the Judgment Debtors have the burden of proof. See Tex. Civ. PRác. & Rem.Code Ann. 52.006(c); Tex.R.App. P. 24.2(c)(3). Therefore, for the Judgment Debtors to show that the trial court abused its discretion as to these issues by ruling based on legally insufficient evidence, the Judgment Debtors must demonstrate that the evidence conclusively establishes, as a matter of law, all vital facts in support of their position. See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). In making this determination, we must consider evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable fact-finder could not. See id., 168 S.W.3d at 827. We must determine whether the evidence before the trial court would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See id., 168 S.W.3d at 819.

In determining whether the Judgment Debtors have shown that the trial court abused its discretion as to these issues by ruling based on factually insufficient evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

III. Analysis

The issues at hand involve the recently amended section 52.006 of the Texas Civil Practice and Remedies Code and the recently amended Rule 24 of the Texas Rules of Appellate Procedure. No opinions or published orders appear to have addressed these issues.

No Differentiation Between Judgment Debtors

Under section 52.006(b) of the Texas Civil Practice and Remedies Code, the cap on appellate security for money judgments is based on “the judgment debtor’s net worth.” Tex. Civ. PRAC. & Rem.Code Ann. 52.006(b). Therefore, the amount of security required of each jointly and severally hable defendant may be different. See id.; Elaine A. Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal After House Bill 4, 46 S. Tex. L.Rev. 1035, 1072 (2005). The trial court set the amount of supersedeas at $7.505 million without differentiating between the two Judgment Debtors.

Rameo Oil

The trial court did not determine the net worth of Rameo Oil. The affidavit of the Judgment Debtors’ group financial director, Steven Bertram, states that Rameo Oil is currently insolvent. The Judgment Creditors offered no contrary evidence. The affidavits of Bertram and Christopher G. Moar, Rameo Energy’s Vice President of Finance, state that Rameo Oil’s net assets are 440 pounds sterling. The audited financial statements of Rameo Energy for 2003 and 2004 were admitted in evidence before the trial court. They show that Rameo Oil is one of various subsidiaries of Rameo Energy. At his deposition, Bertram testified that Rameo Oil sold its interest in an oil and gas field for approximately 67 million pounds and that in 2003, Rameo Energy decided to use these profits to develop its interest in the Seven Heads gas field offshore Ireland. Bertram testified that, to this end, during 2003 Rameo Oil distributed substantially all of its assets to Rameo Energy by dividend. Moar testified at the July 2005 hearing that Rameo Oil’s net assets had not changed in the past year. There is no evidence to the contrary in our record.

Bertram and Moar are interested witnesses. Testimony from interested witnesses may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct, and positive, and there are no circumstances tending to discredit or impeach it. See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989); see also City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.2005) (stating that the fact-finder cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted). The record reflects that the parties conducted net-worth discovery, including interrogatories, document production, and at least one deposition, that of Bertram. The Judgment Debtors produced various documents, including audited financial statements for 2003 and 2004 and various unaudited financial statements. We conclude that the testimony of Moar and Bertram as to the net worth of Rameo Oil could be readily contradicted if untrue. The evidence that Rameo Oil’s current net worth is 440 pounds is clear, direct, and positive. There are no circumstances tending to discredit or impeach this evidence. Reviewing the evidence under the applicable standard of review, we conclude that the evidence conclusively proves as a matter of law that the net worth of Rameo Oil is 440 pounds. Therefore, the trial court abused its discretion in determining that the proper Security Amount for Rameo Oil is $7.505 million. See Tex. Crv. PRAC. & Rem.Code Ann. 52.006(b); Tex.R.App. P. 24.2(a)(1). Using the same 1.7 dollar-to-pound exchange rate used by the Judgment Creditors and the trial court, Rameo Oil’s net worth is $748, and 50 percent of this amount is $374. Therefore, the trial court erred in not setting the Security Amount for Rameo Oil at $374. See Tex. Civ. Prac. & Rem.Code Ann. 52.006(b); Tex.R.App. P. 24.2(a)(1).

Rameo Energy

In its findings of fact and conclusions of law, the trial court based its determination that Rameo Energy’s net worth is $20 million on Rameo Energy’s market capitalization. For reasons explained below, the trial court erred as a matter of law in using market capitalization as its measure of net worth.

Net Worth

Rameo Energy is a Scottish public limited company. Moar testified at the July 2005 hearing that the net worth of Rameo Energy, as of December 31, 2004, was 6.2 million pounds based on the company’s annual report and audited financial statement prepared by PricewaterhouseCoop-ers LLP. The court admitted in evidence an unaudited financial statement for Ram-eo Energy showing it had a net worth of approximately 5.2 million pounds as of May 31, 2005. The note on this financial statement indicated, and Moar testified, that based on the company’s issuance of new share capital, its net worth had since increased by one million pounds, bringing the company’s net worth as of the date of the hearing (July 21, 2005) to 6.2 million pounds. The Judgment Creditors’ expert witness, Walter Bratic, took no exception to this audited financial statement and acknowledged that the net worth listed in the financial statement was the “net worth on a book basis, using generally accepted accounting principles.” Thus, it was undisputed at the July 21 hearing that the net worth of Rameo Energy based on this definition of net worth was 6.2 million pounds.

Nonetheless, Bratic, the Judgment Creditors’ expert, testified that, in his opinion the net worth of the company is about $20 million, “based on what the investing public says this company is worth.” Bratic used market capitalization as his sole basis for determining Rameo Energy’s net worth. Neither section 52.006(b) of the Texas Civil. Practice and Remedies Code nor the part of Rule 24 that implements it contain a definition of “net worth.”

We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.

“Net worth” is a term used by laymen as well as professionals. Although it is a term of art in business and accounting, its meaning is the same in ordinary usage. Dictionaries define “net worth” as the amount by which resources exceed liabilities to creditors. See, e.g., WebsteR’s ThiRD New International Dictionary 1519 (defining “net assets” as “the excess of value of resources over liabilities to creditors”) & 1520 (defining “net worth” as a synonym of “net assets”) (1993 ed.); see also Encarta World English Dictionary (defining “net worth” as “assets minus liabilities: the difference between assets and liabilities of a person or company.”); In-vestopedia (2000 ed.) (defining “net worth” as “the amount by which a company or individual’s assets exceed their liabilities”). Law dictionaries assign the term the same meaning. See Black’s Law Dictionary 1639 (8th ed.2004) (stating that “net worth” is usually calculated as excess of total assets over total liabilities); Black’s Law Dictionary 939 (5th ed.1979) (defining “net worth” as the “[rjemainder after deduction of liabilities from assets”); MeR-riam-WebsteR’s Dictionary of Law (1996 ed.) (defining “net worth” as “the excess of the value of assets over liabilities”). Likewise, many courts considering the meaning of this term also have adopted this widely accepted definition.

For example, in holding that the plain meaning of “net worth” in the Equal Access to Justice Act is the difference between total assets and total liabilities determined in accordance with generally accepted accounting principles (“GAAP”), the United States Court of Appeals for the Seventh Circuit made the following observations:

Congress did not define the statutory term “net worth.” It seems a fair guess that if it had thought about the question, it would have wanted the courts to refer to generally accepted accounting principles. What other guideline could there be? Congress would not have wanted us to create a whole new set of accounting principles just for use in cases under the Equal Access to Justice Act. The proceeding to recover attorney’s fees under the Act is intended to be summary; it is not intended to duplicate in complexity a public utility commission’s rate of return proceeding.

Continental Web Press, Inc. v. NLRB, 767 F.2d 321, 323 (7th Cir.1985), disapproved of on other grounds by, Comm’r, INS v. Jean, 496 U.S. 154, 160-66, 110 S.Ct. 2316, 2319-23, 110 L.Ed.2d 134 (1990). Several federal courts of appeals also have held that the unambiguous meaning of “net worth” in federal statutes is the difference between total assets and total liabilities determined in accordance with GAAP. See, e.g., Broaddus v. United States Army Corps of Eng’rs, 380 F.3d 162, 166-67 (4th Cir.2004) (holding that unambiguous meaning of “net worth” under Equal Access to Justice Act is total assets less total liabilities according to GAAP); Sanders v. Jack son, 209 F.3d 998, 999-1002 (7th Cir.2000) (holding that plain meaning of “net worth” under Fair Debt Collection Practices Act is total assets less total liabilities according to GAAP, which is balance-sheet or book net worth); Kuhns v. Board of Governors of Federal Reserve System, 930 F.2d 39, 41-42 (D.C.Cir.1991) (holding that “net worth” under Equal Access to Justice Act must be calculated in accordance with GAAP); see also Castelli v. Tolibia, 83 N.Y.S.2d 554, 564 (Sup.Ct.1948) (stating that “net worth” has a well-defined meaning, which is the remainder after the deduction of liabilities from assets). Furthermore, in a federal case, the trial court allowed the judgment debtors to supersede a judgment in excess of $145 million by posting a $75 million bond and by making an initial and subsequent certifications that the net worth of one of the judgment debtors was in excess of three times the amount of the judgment. Trans World Airlines, Inc. v. Hughes, 314 F.Supp. 94, 97-98 (S.D.N.Y.1970). In that case, the trial court required the certification of the net worth of the judgment debtor in question to be in accordance with GAAP. See id. at 97. The plain meaning of “net worth,” as used in section 52.006 of the Texas Civil Practice and Remedies Code and Rule 24, is the difference between total assets and total liabilities determined in accordance with GAAP.

Neither the Judgment Creditors nor their expert have identified any treatise or other authority to support the notion that a company’s net worth is measured by market capitalization, yet the trial court equated market capitalization with net worth. Market capitalization and net worth are not the same thing. Market capitalization, often referred to as “market cap,” is the sum derived from the current stock price per share times the total number of shares outstanding. In-vestopedia (2000 ed.). It reflects the overall value of a company’s stock and may be higher or lower than the company’s net worth. Although market capitalization is an indication of the value of a company, our lawmakers chose net worth — not market capitalization — as the legal standard in section 52.006 of the Texas Civil Practice and Remedies Code. We must defer to the Legislature’s selection of net worth as the applicable standard. Using this measure — the difference between total assets and total liabilities determined in accordance with GAAP— not only comports with the unambiguous terms of the statute, but also makes more sense in the context of assessing a judgment debtor’s ability to post bond or other security. By using market capitalization as the standard for determining Rameo Energy’s net worth, the trial court applied an incorrect legal standard and erred as a matter of law. See Gonzalez, 159 S.W.3d at 623-24.

The Judgment Creditors assert that the following two sentences from the legislative history of section 52.006 reveal a legislative intent to leave to the trial court the definition and determination of the “fluid concept” of net worth in any given case:

There is no easy way to define “net worth,” and it is important to give judges discretion to determine this on a case-by-case basis. If a plaintiff feels that a defendant is manipulating its assets to reduce the bond amount, the plaintiff can ask the judge to address this.

House Res. Bill ORG., Bill Analysis, H.B. 4, 78th Leg., R.S., p. 46 (2003). We disagree with the Judgment Creditors’ argument in this regard. Although trial courts have discretion under section 52.006 to determine the amount of a judgment debt- or’s net worth, they have no discretion to alter the meaning of the term “net worth.” This statute does not make a trial court’s determination final, rather it subjects that determination to review by appellate courts. See Tex. Civ. PRAC. & Rem.Code Ann. 52.006(d); In re Kajima Intern., 139 S.W.3d at 112. Section 52.006 also limits the trial court’s factfinding in this regard to a determination of “50 percent of the judgment debtor’s net worth.” See Tex. Civ. PRAC. & RejvlCode Ann. 52.006(b)(1). The Legislature could have required the trial court to determine the Security Amount based on 50 percent of a judgment debtor’s value, using whatever measure of value the trial court found to be most appropriate. However, the Legislature did not do so; instead, it required that the trial court base this determination on the judgment debtor’s “net worth.” While determining “net worth” under GAAP may be quite complicated and may involve different considerations based on the circumstances of the judgment debtor and based on GAAP, the unambiguous meaning of this term is the difference between total assets and total liabilities determined in accordance with GAAP.

We do not interpret the above-quoted legislative history to be contrary to the plain meaning of section 52.006. In any event, even if the legislative history stated that the trial court has unbridled discretion to determine the judgment debtor’s net worth or that “net worth” has no fixed meaning or definition whatsoever, we would not be able to give effect to this legislative history because it would contradict the unambiguous language of the statute. See Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278, 283-84 (Tex.1999) (holding that, although section 311.023 of the Texas Government Code states that courts may consider the legislative history of unambiguous statutes, the legislative history of a statute cannot be used to alter the unambiguous meaning of a statute, except for the rare instance in which it is used to show a typographical error); St. Luke’s Episcopal Hosp., 952 S.W.2d at 505 (stating that courts need not resort to extrinsic aids in construing an unambiguous statute and that courts must find the legislature’s intent as expressed in the language of the statute).

The Judgment Creditors also cite Justice Gonzalez’s concurring opinion in Wal-Mart Stores, Inc. v. Alexander. See 868 S.W.2d 322, 329-32 (Tex.1993) (Gonzalez, J., concurring). In this concurring opinion, Justice Gonzalez lamented the Texas Supreme Court’s failure to follow his suggestion in Lunsford v. Morris that the court define what “net worth” means in the context of the admission into evidence of a defendant’s net worth for the purpose of determining what, if any, punitive damages should be assessed against that defendant. See id. at 330-31; Lunsford v. Morris, 746 S.W.2d 471, 472-73 (Tex.1988) (changing Texas common law and holding for the first time in Texas that evidence regarding a party’s “net worth” is discoverable and admissible in evidence if punitive damages are sought against that party); id., at 475 (Gonzalez, J., dissenting) (warning that practitioners will be confused because the majority does not define what “net worth” means and what types of evidence will be admissible to show “net worth”). Although Justice Gonzalez cites various cases as evidence of confusion among the courts of appeals as to the meaning of net worth in this context, the cases cited either deal with the scope of discovery regarding a defendant’s net worth or recite the types of evidence of net worth that were admitted at trial, without discussing the propriety of admitting that kind of evidence. See Alexander, 868 S.W.2d at 330 (citing cases as evidence of confusion regarding the meaning of net worth).

In his concurring opinion in Alexander, Justice Gonzalez does not cite any cases that determine the definition of “net worth” under the common-law requirement established by Lunsford. See id. Justice Gonzalez stated that, although it was not necessary to decide the matter in the case at hand, the court should have stated that gross sales are not admissible to prove net worth regarding this requirement but that evidence is admissible regarding net income and assets minus liabilities. See id. at 330-31. Justice Gonzalez stated that “[a] rule which limits admissibility only to assets minus liabilities may exclude relevant evidence and impede the goal of determining the true wealth of a defendant.” See id. at 331. Although there was some disagreement among courts of appeals as to what matters fell within the scope of discovery as to this common-law issue of the net worth of a defendant against whom punitive damages are sought, the Texas Supreme Court never followed Justice Gonzalez’s recommendation that it address the issue of the definition of “net worth” in this context. The parties have not cited, and we have not found, any cases addressing the definition of “net worth” under this common-law requirement.

In 1995, the Texas Legislature enacted a statute stating that, “[i]n determining the amount of exemplary damages, the trier of fact shall consider evidence, if any, relating to ... the net worth of the defendant.” Act of April 11, 1995, 74th Leg., R.S., ch. 19, § 1, sec. 41.011, 1995 Tex. Gen. Laws 108, 112 (codified at Tex. Civ. PRAC. & Rem.Code Ann. § 41.011 (Vernon 1997)). The parties have not cited, and we have not found, any cases examining the meaning of “net worth” under section 41.011 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem.Code Ann. § 41.011. Because this statute uses the phrase “evidence ... relating to ... the net worth of the defendant,” there may be less reason to go into the definition of “net worth” under this statute. Section 52.006(b), by contrast, uses the precise language “50 percent of the judgment debt- or’s net worth.” Tex. Civ. Prac. & Rem. Code Ann. § 52.006(b). In sum, Justice Gonzalez’s concurring opinion in Alexander does not change our analysis in this case.

Reviewing the evidence under the applicable standard of review and applying the plain meaning of the term “net worth,” we conclude that the evidence conclusively proves as a matter of law that the current net worth of Ramco Energy is 6.2 million pounds. Counsel for the Judgment Creditors agreed at the July 2005 hearing that this amount is equivalent to $10.54 million, and the trial court so agreed in its findings of fact. Fifty percent of this amount is $5.27 million, and thus, the proper Security Amount for Ramco Energy under Rule 24.2(a)(1) is $5.27 million. The trial court abused its discretion in reaching its conclusion that the proper Security Amount required for Ramco Energy to supersede the judgment is $7.505 million. See Gonzalez, 159 S.W.3d at 623-24.

Substantial Economic Harm

The term “substantial economic harm” is not defined by the statute. It is clear, however, that it is something less than “irreparable harm,” the legal standard utilized before the recent statutory amendment. Though there is not yet case law construing the term, one noted scholar has observed:

The recent legislative modifications to supersedeas requirements effective as to cases in which a final judgment is signed on or after September 1, 2003, reflect a shift in concern from that of protecting the judgment creditor’s ability to collect the judgment if affirmed on appeal, to protecting the judgment debtor from substantial economic harm by appellate security requirements that may effectively preclude the ability to seek appellate review.

Carlson, 46 S. Tex. L.Rev. at 1093.

In amending section 52.006, the Legislature struck a new balance between a judgment creditor’s interest in protecting its judgment pending appeal and a judgment debtor’s interest in having the ability to challenge the adverse judgment on appeal. Not only does the statute replace the “irreparable harm” standard for reducing security with “substantial economic harm,” it also eliminates the requirement that the judgment debtor show harm “will” occur; now the evidence need only demonstrate that harm is “likely.” Moreover, the statute no longer requires the judgment debtor to demonstrate that allowing lesser security will not substantially decrease the degree to which a judgment creditor’s recovery would be secured, in order to obtain relief from the statutory Security Amount. See Tex. Civ. PRác. & Rem.Code Ann. §§ 52.002, 52.006 (Vernon 1997). This means the court need not consider how any reduction of the Security Amount might affect the judgment creditor’s ability to recover under the judgment.

The thrust of the inquiry under section 52.006(c) is whether the judgment debtor has the ability to meet the supersedeas requirement as determined in 52.006(a) or (b) and whether doing so is likely to result in substantial economic harm. See Tex. Civ. PRác. & Rem.Code Ann. 52.006. In conducting this analysis, the trial court has the flexibility to take into account a number of factors that could affect the judgment debtor’s ability to post bond or other security based on the facts and circumstances specific to the case. This inquiry, however, should not focus on the market capitalization of the company or its value as a whole but on the judgment debtor’s actual ability to post the security required. In other words, the court should be less concerned with what price the company might fetch in the marketplace if sold today and more concerned with the company’s available resources and its ability to use them to post security. How much cash or other resources would it take to post a supersedeas bond in the amount in question? Does the judgment debtor have sufficient cash or other assets on hand to post a supersedeas bond in this amount or to post a deposit in lieu of bond in this amount? Does the judgment debtor have any other source of funds available? Does the judgment debtor have the ability to borrow funds to post the requisite security? Does the judgment debtor have unencumbered assets to sell or pledge? What economic impact is such a transaction likely to have on the judgment debt- or? Would requiring the judgment debtor to take certain action likely trigger liquidation or bankruptcy or have other harmful consequences? These are the sort of inquiries that tend to reveal whether a judgment debtor is likely to suffer substantial economic harm. Given the new statutory framework, the drain on the judgment debtor’s resources caused by the attorney’s fees and other costs of appealing the judgment could also be a legitimate factor to consider in determining whether the judgment debtor is likely to suffer substantial economic harm.

The trial court found that posting a su-persedeas bond in the amount of $7,505 million will not cause substantial economic harm to Rameo Energy. We presume that the trial court also found that posting a bond, deposit, or security in the amount of $5.27 million will not likely cause substantial economic harm to Rameo Energy. The Judgment Debtors presented some evidence that, if the trial court found it credible and reliable, might have been sufficient to support a finding by the trial court that Rameo Energy is likely to suffer substantial economic harm if required to post security in the amount of $5.27 million. Nonetheless, the issue is whether the trial court abused its discretion because the Judgment Debtors conclusively proved this issue as a matter of law or because the trial court’s contrary finding is so against to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Both in their affidavits and in their hearing testimony, Bertram and Moar testified that posting security in an amount greater than $200,000 would cause Rameo Energy substantial economic harm. The Judgment Creditors’ only witness, Bratic, did not controvert this testimony. Therefore, this testimony from the Judgment Debtors’ witnesses was uncontroverted. However, this does not necessarily mean that the Judgment Debtors conclusively proved substantial economic harm as a matter of law. See Lofton, 777 S.W.2d at 386 (stating that testimony from interested witnesses may establish a fact as a matter of law only if the testimony could be readily contradicted if untrue, and is clear, direct, and positive, and there are no circumstances tending to discredit or impeach it); see also City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex.2005). Without detailing all of the evidence supporting Ramco Energy’s arguments in favor of substantial economic harm, we note the following:

• Rameo Energy introduced no ■ evidence of any efforts on their part to obtain a supersedeas bond or of what the premium, other costs, and required collateral, if any, would be to obtain a supersedeas bond in the amount of $7.505 million or in any other amount. A surety on a superse-deas bond may choose to require the judgment debtor/principal on the bond to post 100 percent security for its obligations under the supersedeas bond; however, sureties are not required to do so. Bertram and Moar seem to presume without explanation that 100 percent security would be required. They state in their affidavits that Rameo Energy has only $200,000 available to post supersedeas and then they later testify that Rameo Energy can only post a supersedeas bond in the amount of $200,000. Rameo Energy has introduced no evidence to show, under current market conditions, the highest amount of a supersedeas bond it could obtain with $200,000.
• Bertram and Moar concluded that posting more than a $200,000 superse-deas bond would cause Rameo Energy substantial economic harm. However, they did not conduct an analysis of the maximum Security Amount that Ram-eo Energy could post without being likely to suffer substantial economic harm and then determine that this amount was $200,000. Rather, Bertram testified that this $200,000 figure is based on the amount of money that was frozen in Rameo Energy’s accounts at the Bank of Scotland by the arrestment and inhibition that the Judgment Creditors obtained in November 2004, in the Court of Session at Edinburgh, Scotland. Rameo Energy has not explained why the amount of funds that happened to be frozen in its accounts with the Bank of Scotland correlates with the maximum Security Amount that will not be likely to cause it substantial economic harm. There was testimony that the arrestment and inhibition would not apply to any funds that Rameo might deposit with the Bank of Scotland after the date the arrestment and inhibition went into effect.
• In their affidavits, Moar and Bertram testified that Rameo Energy owns the office building in which its headquarters are located in Aberdeen, Scotland and that this building is unencumbered. During his hearing testimony, Bertram noted that this building was subject to the arrestment and inhibition obtained by the Judgment Creditors; however, the Judgment Creditors’ counsel noted in the trial court that the Judgment Creditors are willing to lift the arrestment and inhibition to the extent that Rameo Energy would use the covered assets to supersede the judgment. (Indeed, the $200,000 that Rameo Energy proposes to use to supersede the judgment is covered by the arrestment and inhibition.) Moar testified at the July 2005 hearing that Rameo Energy purchased this office building in 2000 for approximately 1.4 million pounds and that he did not know the current value of that building because he is not a property valuation expert. The trial court could have based its ruling in part on the availability of this unencumbered office budding with a book value of approximately $2.38 million. Rameo Energy offered no evidence as to how much money it could borrow by pledging its title to this building. Rameo Energy did not offer evidence as to the amount of supersedeas bond a surety would agree to sign if Rameo Energy pledged this building as collateral.
• Rameo Energy has seven unencumbered interests in oil and gas properties that have no proven reserves— five in Ireland, one in Montenegro, and one in Bulgaria. By the July 2005 hearing, there was evidence that Rameo Energy had entered into farm-out arrangements as to two of these interests. Further, Bertram and Moar testified that Rameo Energy cannot obtain loans on interests that have no proven reserves. However, there was no testimony as to whether these interests could be sold to generate funds to post security. Regarding this possibility, Bertram testified at the April 2005 hearing that he was “not sure how easy that would be to do or how quickly that could be done.” At the July 2005 hearing, Moar was asked, “Is it possible to raise any money in connection with an asset like that [an unproven asset]?” Moar responded, “I don’t believe so.” Moar, however, also testified that he is not qualified to value oil and gas assets. The Judgment Debtors did not conclusively prove that these seven properties cannot be sold to generate funds to post security.
• Although Rameo Energy emphasized its outstanding debt of approximately 75 million pounds to the Bank of Scotland relating to the Seven Heads gas field, the evidence shows that all but 12 million pounds of this debt is non-recourse debt that is secured only by the 86.5 percent interest of the Rameo group in this gas field. Although 12 million pounds is secured by the stock of Rameo Energy’s profitable oil services subsidiary, Rameo Energy did not introduce evidence that this subsidiary could not service this 12 million pounds obligation or that it was not worth 12 million pounds.
• In Rameo Energy’s 2004 annual report, its Executive Chairman informs the shareholders that “[t]he objective is to be debt free by the end of 2005....”
• Rameo Energy’s 2004 audited financial statement shows that in 2004, its four executives received an aggregate salary of 1.095 million pounds or $1.861 million. The same statement also shows that these four executives received a total compensation in 2004 of 1.39 million pounds or $2.368 million.

In light of the above considerations, we conclude that the testimony of interested witnesses Bertram and Moar does not satisfy the Lofton standard for conclusive evidence. Accordingly, the testimony of these witnesses did not conclusively prove that Rameo Energy will likely suffer substantial economic harm if it is required to post security in an amount greater than $200,000. See Lofton, 777 S.W.2d at 386; see also City of Keller, 168 S.W.3d at 820. Under the applicable standard of review, we determine that there is legally and factually sufficient evidence to support the trial court’s implied finding that Rameo Energy is not likely to suffer substantial economic harm if required to post $5.27 million in security. On this record, the trial court did not abuse its discretion in impliedly making this determination.

IV. Conclusion

The trial court abused its discretion in determining the proper Security Amount as to both Rameo Oil and Rameo Energy. Specifically, the trial court erred in equating net worth with market capitalization. The plain meaning of “net worth,” as used in section 52.006 of the Texas Civil Practice and Remedies Code and Rule 24, is the difference between total assets and total liabilities determined in accordance with GAAP. Under this plain meaning, the evidence conclusively proves that the net worth of Rameo Energy is $10.54 million (6.2 million pounds) and the net worth of Rameo Oil is $748 (440 pounds). Therefore, the trial court abused its discretion in not determining that the cap under section 52.006(b) is $5.27 million for Rameo Energy and $374 for Rameo Oil.

On this record and under the applicable standard of review, the trial court did not abuse its discretion in impliedly finding that Rameo Energy is not likely to suffer substantial economic harm if required to post $5.27 million in security. To date, Rameo Oil has not asserted that it is likely to suffer substantial economic harm if required to post $874 in security; however, in the unlikely event Rameo Oil wishes to do so, it is free to file a Rule 24.2(b) motion in the trial court.

Accordingly, we require that the amount of bond, deposit, or other security necessary to supersede the trial court’s judgment be DECREASED to $874 for Rameo Oil and DECREASED to $5,270,000 for Rameo Energy. To this extent, we GRANT IN PART the Judgment Debtors’ Rule 24.4(a) motion; otherwise, we DENY this motion. We GRANT the Judgment Creditors’ emergency motion to lift this court’s stay of execution on the judgment in its favor. It is therefore ORDERED that this court’s May 10, 2005 order staying execution against Ramco Oil & Gas, Ltd., and Rameo Energy PLC on the Amended Final Judgment signed April 1, 2004, in trial court cause number 2000-22588 in the 61st District Court of Harris County, styled Anglo-Dutch (Tenge) L.L.C. and Anglo Dutch Petroleum International, Inc. v. Ramco Oil & Gas, Ltd., Ramco Energy PLC, Golden Eagle Partners S.a.r.i., Golden Eagle Partnership, L.C., Central Asian Investments, N.V., Halliburton Energy Services, Inc., Bruce Kososki and Fred Tresca is vacated and this STAY IS LIFTED. We note however that the trial court’s April 29, 2005 order suspended enforcement of the trial court’s judgment pending completion of appellate review under Rule 24.4. Today’s order does not affect this suspension of enforcement by the trial court.

Chief Justice HEDGES not participating.

      . All references in this opinion to "pounds” will be to pounds sterling.

      . At the July 2005 hearing, counsel for Judgment Creditors stated that a 1.7 dollar-to-pound exchange rate was acceptable for converting the figure of 6.2 million pounds into dollars. The trial court also used this exchange rate in its findings of fact and conclusions of law.

      . Rameo Energy’s Annual Report and Financial Statements for 2004 indicate that the consolidated financial statements were prepared in accordance with UK Generally Accepted Accounting Principles.

      . When asked if posting a $7.5 million bond would cause substantial economic harm to Rameo Energy, Bratic did not answer the question but instead offered his observation that interests in seven properties could be placed in the registry of the court.

      . Under Scots law, an inhibition is an order issued by the Court of Session to prohibit a debtor from encumbering or alienating the debtor's heritable property to the prejudice of a creditor. See Black’s Law Dictionary 799 (8th ed.2004).

      . Moar also testified at the July 2005 hearing that the Bank of Scotland holds a "floating charge" on the office building that is similar to a "mortgage debenture.” Even if we presume that Moar testified at the hearing that the Bank of Scotland holds a mortgage lien on the office building, the trial court was free to credit the original affidavit testimony of Bertram and Moar that the office building is an unencumbered asset, and we presume the trial court did so.

      . All conversions from pounds to dollars are based on a 1.7 dollar-to-pound exchange rate used by the Judgment Creditors and trial court below.

      . In its findings, the trial court stated that the Judgment Debtors could tender title to these seven interests into the registry of the court as alternate security to supersede the trial court’s judgment and that doing so would not cause the Judgment Debtors substantial economic harm. The trial court indicated at the July 21, 2005 hearing that the Judgment Creditors agreed that these interests would be sufficient alternate security. Because the Judgment Debtors have not sought to supersede the judgment with this nonmonetary alternate security, this issue is not before us, and we do not address it.