author: Justice O’NEILL

text:
    HUGHES WOOD PRODUCTS, INC. and Bailey Wagner, Petitioners, v. Mack M. WAGNER, Respondent.
    No. 99-0074.
    Supreme Court of Texas.
    Argued Nov. 17, 1999.
    Decided May 25, 2000.

      Robert T. Cain, Jr., Lufkin, Terry W. Wood, Beaumont, Kenzy D. Hallmark, Lufkin, for Petitioners.
    Gilbert Timbrell Adams, Beaumont, Vincent L. Marable, III, Wharton, David L. Tolin, Beaumont, for Respondent.
   Justice O’NEILL

delivered the opinion of the Court.

This case presents a choice of law question. Plaintiff was injured while performing logging operations in Louisiana and filed a personal injury suit against the defendants in Texas. Defendants moved for summary judgment contending that, as a matter of law, the Louisiana Workers’ Compensation Act’s exclusive-remedy provision barred plaintiffs Texas action. The trial court granted summary judgment for the defendants. The court of appeals reversed, holding that Texas law applied under the “most significant relationship” test found in sections 6 and 145 of the Restatement. See 979 S.W.2d 84, 86-87; Restatement (Second) of Conflict of Laws §§ 6, 145 (1971). Defendants contend that the appeals court erred in failing to apply section 184 of the Restatement, which precludes tort recovery if the defendant is immune from liability under another state’s workers’ compensation statute. See Restatement (Second) of Conflict of Laws § 184 (1971).

We hold that the court of appeals erred in its conflicts analysis by failing to consider which state has the most significant relationship to the issue to be resolved, that is the exclusive-remedy issue. Nevertheless, the defendants failed to show that they are immune from liability under Louisiana’s workers’ compensation law and thus failed to prove that they are entitled to Restatement section 184⅛ protections. Accordingly, we affirm the court of appeals’ judgment reversing the trial court’s summary judgment and remanding the case to the trial court. See 979 S.W.2d at 88. We leave open the question of which state’s law the trial court should apply to the particular substantive issues to be resolved below.

I

Background

Plaintiff, Mack Wagner, lives in Newton, Texas, and was recruited in Texas to work as a logger. As a logger, he drove equipment owned by Bailey Wagner and cut timber owned by Hughes Wood Products, Inc. in Louisiana. After the timber was cut, at least some of it was hauled to Hughes’s mill in Texas. Hughes is a Texas corporation, and its home office and principal place of business are in Newton, Texas. Bailey Wagner also lives in Texas. While plaintiff was working as a logger in Louisiana, a tree fell and crushed his foot. He received emergency treatment for his injury in Louisiana and then returned to Texas, where the rest of his medical treatment took place.

"When plaintiff was injured, Hughes had Louisiana workers’ compensation coverage, but the company did not file a report with the Louisiana office of workers’ compensation administration reporting the injury. Hughes did make payments to the plaintiff after his injury, but it is not clear from the record what these payments were for or how many were made. Hughes did not have Texas workers’ compensation insurance when the plaintiff was injured. Bailey Wagner had neither Texas nor Louisiana workers’ compensation insurance.

Plaintiff filed this personal injury suit against the defendants, Hughes and Bailey Wagner, in Texas. Defendants filed a joint motion for summary judgment arguing that, under Restatement section 184, Louisiana law controls and plaintiffs suit was barred by the Louisiana Workers’ Compensation Act’s exclusive-remedy provision. Alternatively, they argued that even under Texas law, workers’ compensation benefits were plaintiffs exclusive remedy because he was “an employee covered by workers’ compensation insurance,” Tex. Lab.Code § 408.001(a), albeit in Louisiana. The trial court granted defendants’ motion for summary judgment without specifying the basis for its ruling.

The court of appeals held that Texas law applied and that therefore summary judgment on the basis of defendants’ alleged immunity under Louisiana law was improper. See 979 S.W.2d at 87. The appeals court also rejected defendants’ alternative ground, holding that the defendants, who did not carry Texas workers’ compensation insurance, could not invoke the Texas workers’ compensation statute’s exclusive-remedy provision. See id. at 88. Accordingly, the court of appeals reversed the trial court’s summary judgment. On appeal to this Court, defendants do not argue that they are entitled to protection under the Texas workers’ compensation statute’s exclusive-remedy provision. They argue only that, under Restatement section 184, Louisiana law controls and the immunity conferred by that state’s workers’ compensation scheme bars this suit. Because we hold that defendants failed to prove that they are entitled to immunity under Louisiana’s workers’ compensation law, we affirm the court of appeals’ judgment.

II

Standard of Review

Which state’s law governs an issue is a question of law for the court to decide. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). But determining the state contacts to be considered by the court in making this legal determination involves a factual inquiry. See Parra v. Larchmont Farms, Inc., 932 S.W.2d 68, 74 (Tex.App.—El Paso 1995), rev’d on other grounds, 941 S.W.2d 93 (1997) (per curiam). Thus, a movant for summary judgment seeking to have the law of another state applied must satisfy its burden of proof with respect to fact questions necessary to the choice of law decision. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. See id. at 548-49. Every reasonable inference must be indulged in favor of the nonmov-ant and any doubts resolved in its favor. See id. at 549.

Ill

Choice of Law

Since 1979, this Court has applied the Restatement’s “most significant relationship” test to decide choice of law issues. See Restatement (Second) of Conflict of Laws §§ 6, 145 (1971); Duncan, 665 S.W.2d at 420-21; Gutierrez v. Collins, 583 S.W.2d 312, 318 (Tex.1979). Section 6 of the Restatement sets out the following general factors relevant to the choice of law:

(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2) (1971); see Gutierrez, 583 S.W.2d at 318-19. Section 145 contains the factual matters to be considered when applying these principles to a tort case.

Applying these Restatement sections, the court of appeals determined that Texas has the most significant relationship to the case and that therefore Texas law should apply to all issues. See 979 S.W.2d at 86-87. But the Restatement requires the court to consider which state’s law has the most significant relationship to the particular substantive issue to be resolved. See Restatement (Second) of Conflict of Laws § 145(1) (1971). Section 145(1) specifically provides that “[t]he rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.” Id. (emphasis added); see Duncan, 665 S.W.2d at 421. In its analysis, the court of appeals failed to consider which state has the most significant relationship to the issue to be resolved, that is the exclusive remedy issue.

Section 184 of the Restatement provides the standards by which a court is to determine immunity from a tort suit when an employee is covered by workers’ compensation insurance. See Restatement (Second) of Conflict of Laws § 184 (1971). That section provides:

Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation statute of a state under which the defendant is required to provide insurance against the particular risk and under which
(a) the plaintiff has obtained an award for the injury, or .
(b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred, or (2) where the employment is principally located, or (3) where the employer supervised the employee’s activities from a place of business in the state, or (4) whose local law governs the contract of employment under the rules of §§ 187-188 and 196.

Id. The court of appeals erred in failing to consider section 184’s application to the exclusive-remedy issue.

Section 184 articulates and applies the principles of section 6 to the workers’ compensation exclusive-remedy issue. Its application protects the parties’ justified expectations because “[i]t is thought unfair that a person who is required to provide insurance against a risk under the workmen’s compensation statute of one state which gives him immunity from liability for tort or wrongful death should not enjoy that immunity in a suit brought in other states.” Restatement (Second) of Conflict of Laws § 184 cmt. b (1971); see id. § 6(2)(d). Section 184 also recognizes the relative interests of other states in providing an exclusive workers’ compensation remedy, because “to deny a person the immunity granted him by a workmen’s compensation statute of a given state would frustrate the efforts of that state to restrict the costs of industrial accidents.” Restatement (Second) of Conflict of Laws § 184 cmt. b (1971); see id. § 6(2)(c). Moreover, “[a]ll states are sympathetic with the policies underlying workmen’s compensation, and all states grant certain persons immunity from liability for tort or wrongful death_” Restatement (Second) of Conflict of Laws § 184 cmt. b (1971). Thus, section 184’s application (1) serves the needs of the interstate system, see Restatement (Second) of Conflict of Laws § 6(2)(a) (1971), (2) applies the relevant policies of the forum, see id. § 6(2)(b), (3) promotes the basic policies underlying the workers’ compensation system, see id. § 6(2)(c), (4) protects justified expectations, see id. § 6(2)(d), (5) facilitates certainty, predictability, and uniformity of result, see id. § 6(2)(f), and (6) eases the determination and application of the law to be applied, see id. § 6(2)(g).

Plaintiff has not asserted, nor can we perceive, a policy reason that might preclude section 184’s application. Texas has had a workers’ compensation system in place since 1913. See Act of April 16 1913, 33 rd Leg., R.S., ch. 179, 1913 Tex. Gen. Laws 429; see also Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 510-11 (Tex.1995). The Texas Workers’ Compensation Act, like most workers’ compensation acts, grants employers who carry workers’ compensation coverage for their employees immunity from suit for most work-related injuries. See Tex. Lajb. Code § 408.001. Texas courts have recognized that the workers’ compensation scheme benefits both employees and employers:

The workers’ compensation act was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. ... The act relieves employees of the burden of proving their employer’s negligence, and instead provides timely compensation for injuries sustained on-the-job .... In exchange for this prompt recovery, the act prohibits an employee from seeking common-law remedies from his employer, as well as his employer’s agents, servants, and employees, for personal injuries sustained in the course and scope of his employment.

Darensburg v. Tobey, 887 S.W.2d 84, 86 (Tex.App.—Dallas 1994, writ denied) (citing Reed Tool Co. v. Copelin, 610 S.W.2d 736, 739 (Tex.1980); Paradissis v. Royal Indemn. Co., 507 S.W.2d 526, 529 (Tex.1974)); see also Garcia, 893 S.W.2d at 511.

Louisiana also has an elective system that protects workers’ compensation subscribers by providing for workers’ compensation as the employee’s exclusive remedy. See La.Rev.Stat. Ann. § 23:1 (West 1998). And Louisiana, like Texas, has an interest in maintaining a stable workers’ compensation system that binds employers and employees. See id.; see also Larchmont Farms, Inc. v. Parra, 941 S.W.2d 93, 95 (Tex.1997). Thus, there is no policy reason to refuse to apply Louisiana’s exclusive workers’ compensation remedy. See Larchmont Farms, 941 S.W.2d at 95.

We hold that the principles of Restatement section 6 are served by applying section 184 to the exclusive-remedy issue, and that the court of appeals erred in failing to consider this section. We must now decide whether defendants met their summary judgment burden to show that they are entitled to section 184’s protection.

IV

Defendants’ Summary Judgment Proof

Defendants had the burden under section 184 to show (1) that they would be immune from this suit under Louisiana workers’ compensation law, and (2) that plaintiff has obtained or could obtain an award for his injury in Louisiana. See Restatement (Second) of Conflict of Laws § 184 (1971). Their summary judgment proof establishes neither of these factors.

First, neither defendant established that they would be immune from this suit under Louisiana workers’ compensation law. Louisiana law provides that workers’ compensation benefits are an injured employee’s exclusive remedy for claims against “his employer, or any principal ..., or employee of such employer or principal under any dual capacity theory or doctrine.” La.Rev.Stat. Ann. § 23:1032(A)(l)(b) (West 1998). A “principal” is a person who contracts with another for the performance of work that is part of his trade, business, or occupation. See id. § 23:1032(A)(2). Thus, to establish immunity under Louisiana’s workers’ compensation law, Hughes and Bailey Wagner had to prove that they were Mack Wagner’s employer, principal, or co-employee when the injury occurred. To do so, they rely exclusively upon plaintiffs petition, which alleges that he was injured while employed by “HUGHES WOOD PRODUCTS, INC. and/or BAILEY WAGNER, individually and as Agent and Representative of HUGHES WOOD PRODUCTS, INC.” Defendants argue that this allegation constitutes a judicial admission conclusively establishing their employer status under the Louisiana Workers’ Compensation Act. We disagree.

This Court has held that “[ajssertions of fact, not pled in the alternative, in the five pleadings of a party are regarded as formal judicial admissions,” and that any fact admitted is conclusively established without the necessity of introducing evidence. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983) (emphasis added). But the plaintiff here pleaded his employer’s identity in the alternative.

Therefore, his pleading does not constitute a judicial admission. See id.

In any event, defendants did not prove that they would both be immune under Louisiana law. Defendants argue that, regardless of which one actually employed plaintiff, they are both immune because Louisiana workers’ compensation law protects both contractors and the company that hires them (the “principal” or “statutory employer”) in suits filed by the contractor’s employees. See La.Rev.Stat. Ann. §§ 23:1031, 23:1032, 23:1061 (West 1998). They argue that if Hughes was plaintiffs direct employer, Bailey Wagner is immune as its contractor; if Bailey Wagner was plaintiffs employer, Hughes is immune as a principal and Bailey Wagner is immune as its contractor. But only Hughes had Louisiana workers’ compensation coverage. Thus, Hughes and Bailey Wagner would both be immune only if (1) Hughes was plaintiffs employer and Bailey Wagner was plaintiffs co-employee, or (2) Hughes was Bailey Wagner’s principal. Whether a principal is liable to a contractor’s employees for workers’ compensation benefits and therefore entitled to immunity turns on whether the work it contracted with another to do was “a part of [the principal’s] trade, business, or occupation.” See La.Rev.Stat. Ann. § 23:1061(A)(1) (West 1998). Whether a contractor’s work is part of a principal’s trade, business, or occupation is a question of fact. See Kirkland v. Riverwood Intern. USA, Inc., 681 So.2d 329, 337 (La.1996).

The summary judgment evidence does not establish that Hughes was a principal. It does not show that Hughes had contracted with Bailey Wagner to do logging work in Louisiana on the date that plaintiff was injured. In fact, there was summary judgment evidence that Bailey Wagner was told “not to go to work during that period of time.” There is no evidence in the' record to show- that the logging being done in- Louisiana was a part of Hughes’s trade, business, or occupation.

Without summary judgment evidence showing that Hughes was a principal, there is no proof that it would be immune from suit if Bailey Wagner was plaintiffs employer. And if Bailey Wagner was the employer, he is not immune from suit because he did not have Louisiana worker’s compensation coverage. In sum, defendants did - not establish that they would both be immune from suit regardless of which one of them employed plaintiff.

Defendants also failed to establish the second section 184 requirement, that plaintiff has obtained or could obtain an award for his injury in Louisiana. See Restatement (Second) of Conflict of Laws §. 184 (1971). It is undisputed that plaintiff has not obtained an award for his injury under the Louisiana workers’ compensation scheme. The only summary judgment evidence that relates to whether plaintiff could obtain an award for his injury in Louisiana is the evidence establishing that Hughes had Louisiana workers’ compensation coverage in effect on April 13, 1992. This does not, however, establish that plaintiff could get an ■ award under Hughes’s policy.

First, as discussed above, without proof that plaintiff was employed by Hughes or that Hughes was a principal, it was not shown that plaintiff could obtain benefits under Hughes’s workers’ compensation coverage. See La.Rev.Stat. Ann. §§ 28:1031, 23:1032, 23:1061 (West 1998). Second, Hughes never filed a report of plaintiffs injury with its workers’ compensation insurance carrier or with the office of workers’ compensation administration as required by Louisiana law. See La.Rev. Stat. Ann. §§ 23:1306(A), 23:1021(8) (West 1998). Once an injury report is filed with the office of workers’ compensation administration, that office sends the injured employee a brochure containing a “summary statement of the rights, benefits, and obligations of employees and employers under [the workers’ compensation statute].” La. Rev.Stat. Ann. § 23:1307 (West 1998). Because Hughes never filed an injury report, plaintiff never received the brochure outlining his rights and the procedure to be followed to obtain benefits under the Louisiana workers’ compensation statute, and plaintiff never filed a formal claim for benefits in Louisiana.

Under the Louisiana Workers’ Compensation Act, all claims for payment are barred unless a formal claim for payment is filed within one year of the accident. See La.Rev.Stat. Ann. § 23:1209(A) (West 1998). There are exceptions to the one-year limitations period if the parties have agreed upon payments to be made under the Act, in which case a formal claim must be filed within one or three years of the last payment, depending upon the circumstances. See id. It has been seven years since plaintiff was injured, and there is no proof in the summary judgment record that a formal claim was ever filed. While there is evidence that Hughes made some payments to plaintiff following his injury, there is nothing to show when the last payment was made and no indication that the payments were made under the Louisiana Workers’ Compensation Act. Consequently, defendants failed to show that plaintiff could obtain an award for his injury under the Louisiana workers’ compensation statute.

Because defendants failed to show that they would be immune from plaintiffs suit under the Louisiana workers’ compensation statute and that plaintiff has obtained or could obtain an award for his injury in Louisiana, they failed to invoke the protections of Restatement section 184. Accordingly, we affirm the court of appeals’ judgment reversing the trial court’s summary judgment and remanding the case to the trial court. We leave open the question of which state’s law the trial court should apply to the particular substantive issues to be resolved below.

      . These factual matters include:
      (a) the place where the injury occurred,
      (b) the place where the conduct causing the injury occurred,
      (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
      (d)the place where the relationship, if any, between the parties is centered.
      Restatement (Second) of Conflict of Laws § 145(2) (1971); see Gutierrez, 583 S.W.2d at 319.

      . The Court has often applied more specific sections of the Restatement to address particular choice of law issues. See, e.g., Purcell v. Bellinger, 940 S.W.2d 599, 601 (Tex.1997) (applying section 93 to evaluate the res judi-cata effect of an out-of-state judgment); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 647 (Tex.1995) (applying section 139 to determine whether another state’s attorney-client privilege should apply in a Texas court case); Maxus Exploration Co. v. Moran Bros., Inc., 817 S.W.2d 50, 53-54 (Tex. 1991) (invoking section 196 to determine the law governing contracts for personal services); DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677-78 (Tex.1990) (adopting section 187 for evaluating the enforceability of contractual choice of law clauses).

      . Mack Wagner was injured in 1992, and we apply the Louisiana law in effect at that time. A number of the Louisiana statutes we cite have been amended since 1992, but the relevant language has not changed. Accordingly, we cite to the current statutes.

      . We note that, in response to requests for admissions, Hughes denies that plaintiff was its employee when the injury occurred:
      ... [Hughes] denies that Mack Wagner was its employee on [the date of injury]. If it be found and determined that Hughes Wood Products, Inc. had the right of control over Mack M. Wagner at the time of the accident in question, then such Defendant is protected by the Workers’ Compensation Act of the State of Texas and of the State of Louisiana, (emphasis added).

      . In Kirkland, the Louisiana Supreme Court listed a number of factors to be considered in determining whether the contract work in question was part of the alleged principal’s trade, business, or occupation. See 681 So.2d at 336-37. The Legislature overruled this test in 1997, see La.Rev.Stat. Ann. § 23:1061 (West 1998), but did not overrule Kirkland’s holding that whether a contractor’s work is part of a principal’s trade, business, or occupation is a question of fact. See Kirkland, 681 So.2d at 337.


source: Caselaw Access Project

author: Justice OWEN

license: Public Domain

text:
    CITY OF MIDLAND, Richard L. Czech, individually and in his official capacity as Chief of Police, City of Midland Police Department, and J.W. Marugg, individually and in his official capacity as Lieutenant, City of Midland Police Department, Petitioners, v. Milton O’BRYANT, Leonard Hendon, Jr., Jimmie Cross, Joe Ortiz, and Marvin Rasco, Respondents.
    No. 97-0954.
    Supreme Court of Texas.
    Argued Sept. 9, 1998.
    Decided June 15, 2000.

      Keith David Stretcher, Julia E. Vaughan, Rick D. Davis, David Wayne Lauritzen, Midland, for Petitioners.
    Mark W. Robinett, John Judge, Austin, Glen D. Aaron, II, John E. Gunter, Midland, for Respondents.
   Justice OWEN

delivered the opinion of the Court.

The opinion issued April 6, 2000, is withdrawn, and the following opinion is substituted in its place:

The principal issue in this case is whether an employer owes a duty of good faith and fair dealing to its employees. The plaintiffs are present or former City of Midland police officers. They sued two other officers and the City asserting various causes of action that have as their nucleus allegations of retaliation and discrimination. The trial court granted summary judgment for the defendants on all claims. The plaintiffs appealed, and the court of appeals affirmed in part, reversed in part, vacated the trial court’s judgment in part, and remanded the case to the trial court. The City and the defendant police officers seek review. We hold that (1) there is no cause of action in Texas based on a duty of good faith and fair dealing in the context of an employer/employee relationship; (2) there is no evidence to support the plaintiffs’ claims of intentional infliction of emotional distress; and (3) the claims of two plaintiffs for reinstatement as a remedy for alleged violations of the Texas Constitution should be remanded to the trial court for further proceedings. Accordingly, we affirm the judgment of the court of appeals in part, reverse in part, and remand the reinstatement claim of Milton O’Bryant to the trial court.

I

The five plaintiffs in this case, Milton O’Bryant, Leonard Hendon, Jr., Jimmie Cross, Joe Ortiz, and Marvin Rasco, were certified law enforcement and police officers for the City of Midland. O’Bryant brought two prior lawsuits against the City that are pertinent to this case. In the first, O’Bryant sued in federal court alleging violations of the Americans with Disabilities Act (ADA). O’Bryant voluntarily dismissed that suit. About a year later, the City notified O’Bryant and seven other police officers (who included the plaintiffs) that their duties were slated to be reclassified as civilian positions within three months. Each officer was given the option of: (1) staying in his present position with reclassification as a civilian; (2) applying for a transfer to another position within the police department and continuing in the status of police officer; or (3) applying for a transfer to a civilian position in other City departments. If an officer chose a civilian position, then the pay and benefits would be less. The City also required its police officers to demonstrate greater physical abilities than it had in the past.

After these and other changes within the police department were announced but before they took effect, O’Bryant filed a second suit, and Hendon, Cross, Ortiz, and Rasco later joined as plaintiffs. That suit was filed in state court seeking to enjoin the City’s alleged violations of the ADA and the Texas Commission on Human Rights Act. The plaintiffs voluntarily dismissed that action.

The City proceeded to reclassify many positions that police officers had held, and each of the plaintiffs was affected. Two of the plaintiffs, O’Bryant and Cross, were working in the telephone response unit and were reclassified as civilians. Cross suffered from a degenerative arthritic condition, and O’Bryant had previously injured his back and was under physician’s orders to limit physical activity. Two other plaintiffs, Rasco and Ortiz, were transferred to evening shifts as patrol officers when their respective positions in the evidence room and in the telephone response unit were reclassified as civilian positions. Rasco suffered from heart and lung disease, and Ortiz has an artificial leg prostheses. Both men requested transfer to another position with police officer status, and patrol duty was the second choice of assignment for both. Plaintiff Hendon, who had no disability, was transferred to an evening patrol after his position in crime analysis became a civilian one. A few months after these reclassifications took effect, the plaintiffs brought this suit against the City and later added as defendants Chief of Police Richard L. Czech, and another police officer, J.W. Marugg, in their official and individual capacities.

The plaintiffs alleged that the reclassifi-cations were in retaliation for filing the two prior suits. Rasco and Ortiz asserted that because of their disabilities, their personal safety was endangered when they were transferred to evening patrol shifts instead of less hazardous and less strenuous airport duty. O’Bryant similarly claimed that he was placed in jeopardy by his new assignment as an unarmed, non-commissioned civilian officer who was at times the only person on duty at the police station. The plaintiffs also alleged that the City’s new, more stringent physical requirements for police officers were unnecessary and discriminated against the plaintiffs who had disabilities. A number of other acts of discrimination and retaliation were alleged by all five plaintiffs. Their theories of recovery included violations of the Texas Labor Code, intentional infliction of emotional distress, breach of an alleged duty of good faith and fair dealing, tortious interference with contract, and violations of the due course of law and free speech provisions of the Texas Constitution. The plaintiffs also sought an injunction restoring them to their original positions with the status and benefits of police officers.

The defendants’ responses to the factual allegations are detailed by the court of appeals. 949 S.W.2d at 411. Briefly summarized, they were that the City faced budgetary constraints and that there were limited human and monetary resources to meet an increased need for law enforcement services. Chief of Police Czech stated in an affidavit that in light of these circumstances, he filled positions formerly held by police officers with civilians. There was also evidence that the City revised the job requirements for police officers in response to the enactment of the Americans With Disabilities Act.

The City, Czech, and Marugg moved for summary judgment asserting official and sovereign immunity, that an implied duty of good faith and fair dealing does not arise in an employment agreement, that none of the defendants’ actions constituted intentional infliction of emotional distress, that there is no private cause of action for damages under the Texas Constitution, that the City’s employees could not as a matter of law interfere with its employment contracts with the plaintiffs, and that there had been no violations of the Texas Labor Code. The trial court granted summary judgment for all defendants on all claims without specifying the grounds. The plaintiffs appealed. The court of appeals affirmed in part, reversed in part, and vacated the trial court’s judgment in part. 949 S.W.2d at 417.

The court of appeals held that the defendants were entitled to summary judgment on the tortious interference claims. Id. at 415. The court also held that the plaintiffs were not entitled to money damages in the form of back pay for alleged constitutional violations. Id. at 414. The court of appeals concluded, however, that reinstatement was available as a remedy for the alleged constitutional violations and that summary judgment on that claim for relief was inappropriate. Id. at 414-15. The court of appeals also reversed the trial court’s judgment with regard to official immunity, sovereign immunity, and intentional infliction of emotional distress on the basis that there were fact issues to be resolved. Id. at 413, 416. The court of appeals likewise reversed the trial court’s judgment with regard to the plaintiffs’ claim that the City had breached a duty of good faith and fair dealing. The court reasoned that the City had failed to negate that it owed such a duty to the plaintiffs. Id. at 416. Finally, the court of appeals held that the trial court did not have jurisdiction of the Labor Code claims because the plaintiffs had failed to exhaust their administrative remedies. Id. at 417. The court of appeals accordingly vacated the summary judgment with regard to the Labor Code claims. Id.

The City and the individual defendants filed a petition for review in this Court, which we granted. Because of our disposition of the issues regarding good faith and fair dealing and intentional infliction of emotional distress, we do not consider any of the issues raised regarding official immunity.

We turn first to the court of appeals’ holding that the City was not entitled to summary judgment on the plaintiffs’ claim that it breached a duty of good faith and fair dealing.

II

The City contends that no cause of action exists in Texas for breach of a duty of good faith and fair dealing in the context of an employer/employee relationship. This Court has never decided the question. Courts in other jurisdictions that have considered the issue have reached varying conclusions.

In decisions that have considered employment at-will, the holdings seem to fall within one or more of several broad categories: 1) an employee cannot be terminated if to do so would violate public policy; 2) there is an implied covenant of good faith and fair dealing not to impair a right to receive a benefit an employee has already earned; 8) there is a general implied covenant of good faith and fair dealing; 4) there is an implied covenant of good faith and fair dealing, but any damages are limited to a contract measure, not a bad faith, tort measure; or 5) there is no implied covenant of good faith and fair dealing. A few courts also suggest that the terms of an employee handbook can create a similar obligation that limits the at-will nature of the employment.

In the relatively few cases in which the . employment agreement at issue was not at-will, the decisions seem to fall into the following categories: 1) there is only a cause of action for breach of an express covenant; 2) there is an implied covenant of good faith and fair dealing not to nullify the benefits of the contract; 3) there is no covenant of good faith and fair dealing in a “just cause” contract because the fact-finder will decide what is or is not just cause; or 4) there is a covenant of good faith and fair dealing in a “just cause” contract or a contract for a definite term.

This Court has held that not every contractual relationship creates a duty of good faith and fair dealing. See Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 418 (Tex.1995). We have “specifically rejected the implication of a general duty of good faith and fair dealing in all contracts.” Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp. 823 S.W.2d 591, 595 n. 5 (Tex.1992) (citing English v. Fischer, 660 S.W.2d 521, 522 (Tex.1983)). But see Restatement (Second) of ContRacts § 205 (1979) (providing that “[ejvery contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement”). We have had the question of whether to impose a duty of good faith and fair dealing on at-will employment relationships before us on at least one occasion. In Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 724-25 n. 2 (Tex.1990), we were asked to imply a duty of good faith and fair dealing in all at-will employee relationships, but we did not reach the issue because it was abandoned at oral argument.

As the plaintiffs recognize, this Court has imposed an actionable duty of good faith and fair dealing only when there is a special relationship, such as that between an insured and his or her insurance carrier. See Arnold v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). We have held that a special relationship exists in the insurance context because of “the parties’ unequal bargaining power and the nature of insurance contracts which would allow unscrupulous insurers to take advantage of their insureds’ misfortunes in bargaining for settlement or resolution of claims.” Id. The Court concluded in Arnold that without a cause of action for breach of a duty of good faith and fair dealing, “insurers can arbitrarily deny coverage and delay payment of a claim” and that an insurer has “exclusive control over the evaluation, processing, and denial of claims.” Id.

But the elements which make the relationship between an insurer and an insured a special one are absent in the relationship between an employer and its employees. First, in Texas, the employment relationship is generally at-will unless the parties enter into an express agreement that provides otherwise. Second, insurance contracts are typically much more restrictive than employment agreements. If an insured suffers a loss, he cannot simply contract with another insurance company to cover that loss. By contrast, an employee who has been demoted, transferred, or discharged may seek alternative employment. See, e.g., Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, 390 (1988).

Moreover, this Court has thus far recognized only one limited common-law exception to the at-will employment doctrine. We held in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex.1985), that an employer may not discharge an employee for the sole reason that the employee refused to perform an illegal act that carried criminal penalties. Id. at 735. We have not, however, recognized other common-law exceptions to the employment at-will doctrine. We declined to recognize a common-law whistleblower cause of action in Winters, 795 S.W.2d at 724-25, and reaf-finned our decision not to do so in Austin v. Healthtrust, Inc., 967 S.W.2d 400 (Tex.1998). We did so primarily on the basis that the Legislature has been active in crafting whistleblower statutes that often vary from one another in material respects. The adoption of a general common-law whistleblower cause of action would have undercut the many distinctions drawn by the Legislature among the various statutory whistleblower causes of action. Austin, 967 S.W.2d at 402.

Similarly, we decline to impose a duty of good faith and fair dealing on employers in light of the variety of statutes that the Legislature has already enacted to regulate employment relationships. Recognizing a new common-law cause of action based on the duty plaintiffs advocate would tend to subvert those statutory schemes by allowing employees to make an end-run around the procedural requirements and specific remedies the existing statutes establish.

Here, for instance, plaintiffs have alleged claims for discrimination and retaliation under sections 21.051 and 21.055 of the Texas Labor Code. Tex. Lab.Code §§ 21.051, 21.055. But the court of appeals determined that plaintiffs had failed to exhaust their administrative remedies as required by the Labor Code, and that therefore the trial court did not have jurisdiction over those claims. 949 S.W.2d at 417. Plaintiffs do not contest this determination. Rather, they ask us to excuse them from the Labor Code’s administrative requirements by creating a common-law cause of action for the same actions of the City on which they based their suit under the Labor Code. We decline to do so.

In holding that there is no duty of good faith and fair dealing in the employment context, we perceive no distinction between government and private employers, inasmuch as both types of employers are subject to applicable laws, regulations, and contractual agreements. Nor do we see any meaningful basis to distinguish between employment at-will and employment governed by an express agreement. A court-created duty of good faith and fair dealing would completely alter the nature of the at-will employment relationship, which generally can be terminated by either party for any reason or no reason at all, and we accordingly decline to change the at-will nature of employment in Texas. If, as plaintiffs argue, they could only be terminated or transferred for reasons of “merit,” that fact militates against imposing a common-law duty of good faith and fair dealing because such a contractual limitation would afford more rights to the plaintiffs than at-will employees possess. Moreover, such a duty would be unnecessary when there are express contractual limits on an employer’s right to terminate.

Accordingly, we hold that the City of Midland was entitled to summary judgment on the plaintiffs’ claims that the defendants breached a duty of good faith and fair dealing. We turn to the claims for intentional infliction of emotional distress.

Ill

The elements of intentional infliction of emotional distress are: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe. See Brewerton v. Dalrymple, 997 S.W.2d 212, 215 (Tex.1999) (citing Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993)). Courts must determine as a threshold matter whether “ ‘the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.’ ” Id. at 216 (quoting Womick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993) (quoting in turn Restatement (Second) of ToRts § 46 cmt. h (1965)). To be extreme and outrageous, conduct must be “‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Mattix-Hill v. Reck, 923 S.W.2d 596, 597 (Tex.1996) (quoting Twyman, 855 S.W.2d at 621).

Our recent decision in GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex.1999) is instructive. As in this case, the conduct that was alleged to constitute intentional infliction of emotional distress occurred in an employment context. We held that evidence of a supervisor’s conduct was legally sufficient to support the jury’s finding of intentional infliction of emotional distress. The Court cautioned, however, that this tort “does not he for ordinary employment disputes,” and that the kind of extreme conduct necessary to raise a fact question of intentional infliction of emotional distress in the workplace “exists only in the most unusual of circumstances.” Id. at 612-13. That admonition grew out of the recognition that employers supervise, review, criticize, demote, transfer, discipline, and terminate employees. Id. at 612. This is often stressful and unpleasant for an employee and at times may even be unwarranted. See id. Nevertheless, “an employer must have latitude to exercise these rights in a permissible way, even though emotional distress results.” Id.

In this case, the City’s decision to reclassify positions formerly held by police officers as civilian positions does not rise to the level of extreme and outrageous conduct that is required for the tort of intentional infliction of emotional distress. Cf Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995) (holding that an employer acted within its rights in investigating reasonably credible allegations that an employee had stolen a wreath); Wornick Co. v. Casas, 856 S.W.2d 732, 735 (Tex.1993) (holding that employer’s conduct in firing employee for allegedly possessing incriminating information and in escorting her off the premises with a security guard was not extreme and outrageous conduct). Even the wrongful transfer, failure to promote, or termination of an employee does not, standing alone, constitute intentional infliction of emotional distress. See Brewerton, 997 S.W.2d at 216; Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998). It follows that an employer’s decision to revise job descriptions or to change the nature of and compensation for certain positions is not “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Mattix-Hill v. Reck, 923 S.W.2d 596, 597 (Tex.1996) (quoting Twyman, 855 S.W.2d at 621). The reclassifications by the City are the type of business or employment decisions that an employer must have the latitude to make. See GTE Southwest, 998 S.W.2d at 612; Randall’s Food Markets, 891 S.W.2d at 644 (discussing managerial functions necessary to the ordinary operation of a business organization).

Accordingly, plaintiffs have failed to raise a fact question about “the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct.” GTE Southwest, 998 S.W.2d at 613. This is particularly so for Rasco and Ortiz because, although they now complain of being assigned to evening patrol, it is undisputed that both specified a patrol position as their second choice for transfer.

The trial court did not err in granting summary judgment for the defendants on the claims for intentional infliction of emotional distress.

IV

The final claim at issue is that of O’Bryant for reinstatement as a police officer to remedy alleged violations of the due course of law and free speech provisions of the Texas Constitution. See Tex. Const. art. 1, §§ 8, 19. From the briefs filed in this Court, it does not appear that the other plaintiffs seek reinstatement based on violations of the Texas Constitution.

The court of appeals concluded that our decision in City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex.1995), did not foreclose an “equitable remedy per se,” and remanded the reinstatement claims to the trial court without further discussion. 949 S.W.2d at 414-15. The City does not ask us to decide whether, as a legal proposition, reinstatement can ever be a remedy for violations of the due course of law or free speech provisions of the Texas Constitution. The City contends only that it is impossible to reinstate O’Bryant because he is not physically capable of performing the duties of a police officer. We do not reach even that narrow issue because of the procedural posture of this case.

The defendants’ motion for summary judgment did not address the reinstatement claims or whether there had been constitutional violations. The motion asserted only that damages could not be recovered for violations of the Texas Constitution. The trial court accordingly erred when it granted summary judgment for the defendants on all claims. See Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983). But, the court of appeals did not reverse the trial court on that basis. The court of appeals instead held that reinstatement was available as a remedy if there were violations of the Texas Constitution and remanded all plaintiffs’ claims for reinstatement to the trial court. Whether reinstatement can be a remedy for violations of the Texas Constitution is not before this Court, and accordingly, we express no view on that question. Because the trial court should not have granted summary judgment on an issue that was not presented, the judgment of the court of appeals reversing and remanding the reinstatement issue to the trial court was correct with regard to O’Bryant.

For the reasons considered above, we affirm the judgment of the court of appeals in part, reverse that judgment in part, and remand O’Bryant’s claim for reinstatement to the trial court for further proceedings consistent with this opinion.

      . According to a Suggestion of Death filed in this matter on August 26, 1999, Cross died on July 20, 1999, while this appeal was pending. Plaintiff’s counsel indicates in plaintiff's motion for rehearing that it is therefore inappropriate to remand Cross's claim for equitable reinstatement. Accordingly, we hereafter address only O’Bryant’s reinstatement claim.

        .See Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139 (Alaska 1999); "Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 710 P.2d 1025, 1033 (1985) (en banc); Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683, 684 (1991); Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, 376 (1988) (in bank); Crawford Rehabilitation Servs., Inc. v. Weissman, 938 P.2d 540, 547 (Colo.1997); Magnan v. Anaconda Ind., Inc., 193 Conn. 558, 479 A.2d 781, 789 (1984); Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625, 631 (1982); Hummer v. Evans, 129 Idaho 274, 923 P.2d 981, 986-87 (1996) (holding that cause of action is for breach of contract not tort); Stratton v. Chevrolet Motor Div., 229 Neb. 771, 428 N.W.2d 910, 914 (1988) (holding that there is no implied covenant of good faith or fair dealing unless an employee is deprived of constitutional or statutory rights); Howard v. Dorr Woolen Co., 120 N.H. 295, 414 A.2d 1273, 1274 (1980) (holding that although public policy prohibits discharge under some circumstances, discharge on the basis of sickness or age does not fall in that narrow category); Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166, 173 (1992); Gilmore v. Enogex, Inc., 878 P.2d 360, 363 (Ok.1994); Ludwick v. This Minute of Carolina, Inc., 287 S.C. 219, 337 S.E.2d 213, 216 (1985); Breen v. Dakota Gear & Joint Co., 433 N.W.2d 221, 223 (S.D.1988); Heslop v. Bank of Utah, 839 P.2d 828, 836 (Utah 1992); Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1089 (1984) (en banc); Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 840 (1983) (holding that employee cannot be fired for refusing to violate the constitution or a statute).

      . See Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139 (Alaska 1999); French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996); Wagenseller v. Scottsdale Mem’l Hosp., 147 Ariz. 370, 710 P.2d 1025, 1040 (1985); Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 649 N.E.2d 1102, 1105 (1995); Garcia v. UniWyo Fed. Credit Union, 920 P.2d 642, 646 (Wyo.1996) (holding that in order for there to be a breach of an implied covenant, employment relationship must be a long-term coupled with a discharge calculated to avoid benefits or commissions).

      . See DuPont de Nemours and Co. v. Pressman, 679 A.2d 436, 444 (Del.1996); Logan v. Yellowstone County, 263 Mont. 218, 868 P.2d 565, 567 (1994); Gates v. Life of Mont. Ins.

        Co., 205 Mont. 304, 668 P.2d 213, 214-15 (1983) (upholding award of punitive damages for breach of implied covenant of good faith in employment relationship); Peck v. Imedia, Inc., 293 N.J.Super. 151, 679 A.2d 745, 753 (App.Div.1996); Somers v. Somers, 418 Pa.Super. 131, 613 A.2d 1211, 1213-14 (1992); Hooks v. Gibson, 842 S.W.2d 625, 628 (Tenn. Ct.App.1992); cf. E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 441 (Del.1996).

      . See Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, 401 (1988) (in bank).

      . See Hamblen v. Danners, Inc., 478 N.E.2d 926, 929 (Ind.App.1985); Huegerich v. IBP, Inc., 547 N.W.2d 216, 220 (Iowa 1996); Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841, 851 (1987); Bard v. Bath Iron Works Corp., 590 A.2d 152, 156 (Me.1991); Suburban Hosp., Inc. v. Dwiggins, 324 Md. 294, 596 A.2d 1069, 1076-77 (1991); Hammond v. United of Oakland, Inc., 193 Mich.App. 146, 483 N.W.2d 652, 655 (1992); Michaelson v. Minnesota Min. & Mfg. Co., 474 N.W.2d 174, 181 (Minn.App.1991); Hartle v. Packard Elec., 626 So.2d 106, 110 (Miss.1993); Neighbors v. Kirksville College of Osteopathic Med., 694 S.W.2d 822, 824 (Mo.App.1985); Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 749 P.2d 1105, 1109-10 (1988) (recognizing no such exception in at-will case and refusing to create one where there is an express employment contract); Bourgeous v. Horizon Healthcare Corp., 117 N.M. 434, 872 P.2d 852, 856 (1994); Nice v. Combustion Eng'g, Inc., 193 A.D.2d 1088, 599 N.Y.S.2d 205, 206 (N.Y.App.Div.1993); Hillesland v. Federal Land Bank Assoc., 407 N.W.2d 206, 214 (N.D. 1987); Edelman v. Franklin Iron & Metal Corp., 87 Ohio App.3d 406, 622 N.E.2d 411, 414-15 (1993); Sheets v. Knight, 308 Or. 220, 779 P.2d 1000, 1008 (1989); Breen v. Dakota Gear & Joint Co., 433 N.W.2d 221, 224 (S.D. 1988) (conceptually separating the public policy exception from its rejection of the implied covenant); Heslop v. Bank of Utah, 839 P.2d 828, 840 (Utah 1992) (rejecting implied covenant of good faith and fair dealing but would recognize a cause of action if termination violated a clear, substantial and significant public policy); Mason v. Richmond Motor Co., 625 F.Supp. 883, 889-90 (E.D.Va.1986) (concluding that Virginia had not yet implied a covenant of good faith and fair dealing in employment relationships); Ross v. Times Mirror, Inc., 164 Vt. 13, 665 A.2d 580, 586 (1995); Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1086 (1984) (en banc) (rejecting an implied covenant of good faith and fair dealing but recognizing a cause of action where the discharge contravenes a clear mandate of public policy); Miller v. Massachusetts Mut. Life Ins. Co., 193 W.Va. 240, 455 S.E.2d 799, 803 (1995); Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 838 (1983); see also Salisbury v. Stone, 518 A.2d 1355, 1360 (R.I.1986) (holding that when at-will status was statutory, courts had no power to imply a covenant of good faith and fair dealing).

      . See Breen v. Dakota Gear & Joint Co., 433 N.W.2d 221, 223 (S.D.1988) (exception to at-will where employer fails to comply with promulgated termination procedures); Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081, 1087-88 (1984) (en banc) (exception where manual creates expectation of specific treatment in specific situations); see also Nice, 193 A.D.2d 1088, 599 N.Y.S.2d 205, 206-07 (1993) (holding that even an at-will employer’s right to terminate might be limited by an express provision in the employer’s personnel handbook).

      . See Decker v. Browning-Ferris Indus., Inc., 903 P.2d 1150, 1156-57 (Colo.Ct.App.1995) (holding that recovery of non-economic damages could not stand even though there was a breach of an express agreement to treat employees fairly).

      . See Smith v. Meridian Joint Sch. Dist., 128 Idaho 714, 918 P.2d 583, 590 (1996); K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364, 1369 (1987).

      . See Hammond v. United of Oakland, Inc., 193 Mich.App. 146, 483 N.W.2d 652, 655 (1992).

      . See Barbe v. A.A. Harmon & Co., 705 So.2d 1210, 1220 (La.App.1998); Stratton v. Chevrolet Motor Div., 229 Neb. 771, 428 N.W.2d 910, 914 (1988) (dicta); Shoen v. Amerco, Inc., Ill Nev. 735, 896 P.2d 469, 476-77 (1995) (holding that there is an implied covenant of good faith and fair dealing in a lifetime employment contract); K Mart Corp. v. Ponsock, 103 Nev. 39, 732 P.2d 1364, 1369 (1987); Bourgeous v. Horizon Healthcare Corp., 117 N.M. 434, 872 P.2d 852, 857 (1994) (holding that tort remedies are not available for breach).

      . See, e.g., Tex. Agric. Code § 125.013(b); Tex. Civ. Prac. & Rem.Code § 122.001; Tex. Elec. Code §§ 161.007, 276.001; Tex. Fam.Code § 158.209; Tex. Gov’t.Code §§ 431.006, 554.002; Tex. Health & Safety Code §§ 81.102, 242.133, 502.017, 592.015; Tex. Lab.Code §§ 21.051, 21.055, 52.041, 101.052, 411.082, 451.001; Tex. Loc. Gov't Code § 160.006; Tex. Occ.Code §§ 103.001, 160.003, 160.007, 301.419.


author: McCORMICK, P.J.,

text:
    Albert Rodriguez BLANCO, Appellant, v. The STATE of Texas.
    No. 1404-99.
    Court of Criminal Appeals of Texas, En Banc.
    May 3, 2000.

      Tim W. Avery, McKinney, for appellant.
    Angela Ivory, Asst. Dist. Atty., McKinney, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

McCORMICK, P.J.,

delivered the opinion of the Court,

in which MANSFIELD, KELLER, PRICE, WOMACK and KEASLER, JJ„ joined.

After a jury convicted appellant of burglary, the prosecution and appellant made an agreement in which appellant promised not to appeal his conviction in exchange for the prosecution’s promise to recommend to the trial court that it assess a sixteen-year sentence. The prosecution kept its end of the bargain, and the trial court followed the prosecution’s sixteen-year sentence recommendation. Appellant, however, reneged on the deal when he appealed his conviction. The Court of Appeals decided appellant had to keep his promise and dismissed appellant’s appeal. We exercised our discretionary authority to review this decision.

Our law provides that a defendant in noncapital cases “may waive any rights secured him by law.” See Article 1.14(a), V.A.C.C.P. Appellant, however, argues that Article 1.14(a) does not apply here and he does not have to keep his promise because this Court has held “that a defendant is not bound by his agreement to waive appeal which is made after judgment of conviction, but before the pronouncement of sentence.” Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Cr.App.1977) (and authorities cited therein).

Thomas is based on other decisions of this Court holding that a defendant’s pretrial waiver of the right to appeal is not binding. See Thomas, 545 S.W.2d at 470; Ex parte Townsend, 538 S.W.2d 419 (Tex.Cr.App.1976). These decisions rest primarily on the rationale that a defendant’s pretrial waiver of the right to appeal is involuntary and “cannot be knowingly and intelligently made” because “the defendant has no way of knowing with certainty the punishment that will be assessed and cannot anticipate the errors that may occur during trial.” See Townsend, 538 S.W.2d at 420.

The Court of Appeals in this case, as have other Courts of Appeals in similar cases, distinguished our pretrial-waiver-of-the-right-to-appeal cases such as Townsend and declined to follow Thomas because appellant knew what his punishment would be if the trial court accepted his “plea” and appellant knew what errors may have occurred during trial when he promised to waive his right to appeal. We agree that the considerations that led to our decisions in pretrial-waiver-of-the-right-to-appeal cases such as Townsend are less compelling in cases like this at least where the trial court follows the prosecution’s sentencing recommendation. See Blanco, at 348 (“the injustice and uncertainties which Thomas was meant to prevent do not exist in this case”). Thomas also is factually distinguishable because there the defendant did not bargain for a sentencing recommendation from the prosecution in exchange for his waiver of the right to appeal. See Thomas, 545 S.W.2d at 470. There is no valid or compelling reason why appellant should not be held to his bargain.

Appellant argues that he should be allowed to renege on his promise because he would have had no recourse had the trial court declined to follow the prosecution’s sentencing recommendation. This case does not present that question so we need not address it here or the Court of Appeals’ determination that Article 26.13, V.A.C.C.P., “provides safeguards for a defendant” in appellant’s “what if’ hypothetical situation. See Blanco, at 346.

Finally, we note that our decision advances valid and important public policy concerns of moving cases through the system with benefits to both defendants and the general public. See generally Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 2547—48, 81 L.Ed.2d 437 (1984); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). It also is well-settled that a defendant is entitled to insist on the benefit of his bargain. See Santobello, 92 S.Ct. at 498-99; Bass v. State, 576 S.W.2d 400, 401 (Tex.Cr.App.1979). Where, as in this case, there has been no unfairness “in securing agreement between an accused and a prosecutor,” there is no reason why this rule should not apply to defendants. See Mabry, 104 S.Ct. at 2547-48. Appellant was “fully aware of the likely consequences” when he waived his right to appeal, and it is “not unfair to expect him to five with those consequences now.” See id.

The judgment of the Court of Appeals is affirmed.

MEYERS and JOHNSON, JJ., concur in the result.

HOLLAND, J., is not participating.

      . See also Bailey v. State, 543 S.W.2d 653, 655 (Tex.Cr.App.1976); Ex parte Dickey, 543 S.W.2d 99, 101 (Tex.Cr.App.1976); Smith v. State, 440 S.W.2d 843, 844 (Tex.Cr.App.1969).

      . Blanco v. State, 996 S.W.2d 345, 347 (Tex.App.—Texarkana, 1999) (appellant "knew with certainty what punishment would be assessed” and "he was aware that appealable errors might have occurred at trial”); see also Bushnell v. State, 975 S.W.2d 641 (Tex.App.—Houston [14th Dist.] 1998, pet. ref’d); Turner v. State, 956 S.W.2d 789 (Tex.App.—Waco 1997, no pet.); Doyle v. State, 888 S.W.2d 514 (Tex.App.—El Paso 1994, pet. refd).


author: KEASLER, J., MANSFIELD, J., KELLER, J., Johnson, J.,

text:
    Rudolfo LOPEZ, Appellant, v. The STATE of Texas.
    No. 677-99.
    Court of Criminal Appeals of Texas.
    May 3, 2000.

      Jacqueline Snyder, Adkins, for appellant.
    J. Scott Sullivan, Asst. Dist. Atty., San Antonio, Jeffrey L. Van Horn, Asst. State’s Atty., Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court,

in which McCORMICK, MEYERS, PRICE, HOLLAND, and WOMACK, JJ., join.

Rudolfo Lopez was charged with sexually assaulting a 12-year-old boy named Paul. At trial, he unsuccessfully sought to introduce evidence that two years earlier Paul had falsely accused his mother of physical abuse. Lopez argues that the evidence should have been admitted because the Confrontation Clause of the Constitution demands it. We conclude that the trial court properly excluded the evidence.

FACTS

Paul testified that Lopez compelled Paul to perform oral sex on Lopez numerous times over the course of several months. Lopez attempted to impeach Paul’s credibility with evidence that two years earlier, Paul had complained to the Texas Department of Human Services that his mother had thrown him against a washing machine, and that case had been closed without any action taken against the mother.

PROCEDURAL HISTORY

Lopez was convicted of aggravated sexual assault of a child and indecency with a child, and sentenced to 12 years in prison on each count. On appeal, Lopez argued he should have been permitted to impeach Paul with evidence of the prior false accusation. The court of appeals reversed, holding that the evidence should have been admitted. We vacated that opinion and remanded the case for the court of appeals to address the State’s argument that the evidence was inadmissible pursuant to Rule of Evidence 608(b). On remand, the court of appeals held, despite Rule 608(b), the Confrontation Clause demands that the evidence be admitted.

Both the District Attorney and the State Prosecuting Attorney filed petitions for discretionary review, which we granted. The District Attorney argues that “[t]he Court of Appeals erred in holding that [Lopez] was entitled under the right to confrontation to impeach [Paul’s] credibility with evidence that [Paul] made a prior false or unfounded allegation of abuse, of a kind different than that for which [Lopez] was prosecuted, and made against someone other than [Lopez].” The State Prosecuting Attorney’s petition asks, “Does the exclusion of evidence, pursuant to Tex. R.Evid. 608(b), that the victim of a sexually-related offense made a previous, unsubstantiated complaint of physical abuse against a third person, constitute a violation of the accused’s federal constitutional right to confrontation of witnesses?”

ANALYSIS

Confrontation Clause

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Confrontation means more than being allowed to confront the witness physically. A primary interest secured by the Confrontation Clause is the right of cross-examination. Each Confrontation Clause issue must be weighed on a case-by-case basis, carefully taking into account the defendant’s right to cross-examine and the risk factors associated with admission of the evidence. In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail. The trial court maintains broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.

We have previously indicated that the Confrontation Clause will prevail if there is a conflict between it and the Rules of Evidence. Indeed, Rule 101(c) of the Rules of Evidence dictates that the Constitution should control if there is a conflict. But that Rule also admonishes us that, “where possible, inconsistency is to be removed by reasonable construction.”

Rule 608(b)

Rule 608(b) of the Rules of Evidence provides that “[sjpecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.” The issue we face is whether, in a case involving a sexual offense, the Confrontation Clause demands that evidence of the complainant’s prior false allegations of abuse against a person other than the defendant be admissible, despite Rule 608(b)’s proscription against admitting specific instances of conduct. We must decide whether the Confrontation Clause requires us to carve out a special exception to the Rules of Evidence for sexual offenses.

Our Precedent

We addressed a similar issue in Bout-well v. State. In that case, the issue was whether the State could admit extraneous offense evidence against the defendant. A plurality of this Court recognized “a narrow exception for sex offenses to permit admission of similar extraneous sex offenses which occurred between the minor complainant and the accused.” But we later disavowed Boutwell in Vernon v. State, , where we pointed out that the Rules of Evidence, enacted after Boutwell, were “the most important guide to admissibility” of evidence.

Based on Vernon, the Rules of Evidence should govern the admissibility of evidence, and we should not create a special exception to Rule 608(b) for sexual offenses. But today’s case is different because it involves the admission of previous bad acts against the complainant, as opposed to the admission of extraneous offenses against the defendant. So the Confrontation Clause becomes relevant and may dictate a different result.

Other States

Other states have held that the Confrontation Clause requires creating a special exception for sexual offenses to allow admission of prior false accusations of abuse by the complainant despite evidentiary bars. But the rationale behind these opinions is not at all clear. Some recurring themes are that sex offenses are somehow unique because (1) they are easily charged and difficult to disprove; (2) there are usually no witnesses to the offense, so the credibility of the complainant and the defendant are more critical issues; and (3) the nature of the charge is apt to arouse sympathy and create bias. None of these rationales persuades us to create an across-the-board exception to the Rules of Evidence for sex offenses.

• First, sex offenses are not any easier to charge or any more difficult to disprove than any other case. In fact, often it is just the opposite. Studies show that “rape is rarely reported to anyone, and women who do report the crime often wait days, weeks, months, or even years before confiding in a family member, a friend or a rape crisis counselor, much less going to the police.” The fact is that in sex offenses, it is often extremely difficult for the victim to come forward. And these offenses are no more difficult to disprove than any other accusation. As with any other charge, a defendant may argue mistaken identification, consent, failure of the State to meet its burden of proof, or any other defense available in a criminal case.
• Credibility of the witnesses is no more important in sex offenses than in any other case. Any case can involve a swearing match between two witnesses: an assault in which the defendant and the victim are alone and the defendant threatens the victim with imminent bodily injury; a kidnapping in which the defendant restrains the victim in an isolated location and the victim eventually escapes; an attempted theft in which the defendant and the victim are alone and the defendant grabs the victim’s purse but is unable to get it away from the victim. In each of these examples, there is no physical evidence and there are no additional witnesses to the crime. In contrast, although some sex offenses have no corroborating physical evidence, many sex offenses do — such as evidence of victim penetration or traces of the attacker’s DNA. So the complainant’s and the defendant’s credibility are no more critical issues in sex offense cases than in any other type of case.
• Any emotions associated with sex offenses are all the more reason to prevent admission of prior false accusations by the victim. To justify creating the special exception for sex offenses in Bout-well, we said that “[sjexual offenses are highly emotional issues in our society and the defendants are regarded differently from the ‘ordinary’ criminal.” But the same is true for victims of a sexual offense. They, too, are regarded differently from the “ordinary” victim. No other victim of any offense is so likely to be accused of fabricating, fantasizing, or “asking for it.” The increased emotional level associated with sexual offenses is all the more reason to refuse to allow the jury to be additionally confused by collateral acts of misconduct by a witness. Indeed, that is the entire purpose behind Rule 608(b).

Legal commentators have also recognized the peculiarity of the sex-offense exception recognized in other states. Professors Goode, Wellborn, and Sharlot point out that this rule “cannot be easily squared with the dictates of Rule 608(b). Typically, the probative value of such evidence flows from the inference it raises as to the complainant’s propensity to make false claims—precisely the type of inference proscribed by Rule 608(b).”

We agree. Rule 608(b) mandates that “[s]pecifie acts not resulting in conviction may not be used to demonstrate the witness’s untrustworthy nature.” As the Ohio Court has pointed out, “the mere fact that an alleged rape victim made prior false allegations does not automatically mean that she is fabricating the present charge.” Prior false allegations of abuse “do not tend to prove or disprove any of the elements of rape.”

So the out-of-state cases recognizing a “sexual offense” exception rely on nothing but generalizations, and the generalizations are just not true in every case. It makes no sense to say that certain factors will always be present in a case involving a sexual offense but will never be present in a case involving a different type of offense. In Lagrone, we refused to allow the defendant “to circumvent Criminal Rule 608(b)’s moratorium on the use of specific instances of conduct for impeachment.” We see no reason to create a special exception to Rule 608(b) today. A more logical approach is to look at each individual case to determine whether the Confrontation Clause demands the admissibility of certain evidence.

Holding

Because we find (1) our precedent does not favor creating a special exception to the Rules of Evidence for sex offenses, and (2) the rationale of the out-of-state cases creating a universal sexual offense exception is unpersuasive, we decline to create a per se exception to the Rule 608(b) for sexual offenses.

But although we decline to create a per se exception to the Rule, we acknowledge that the Confrontation Clause occasionally may require the admissibility of evidence that the Rules of Evidence would exclude. So we must consider whether the Confrontation Clause requires the admission of Paul’s prior accusation under the facts of this case.

Application of Law to Facts

We must balance the probative value of the evidence Lopez sought to introduce against the risk its admission entailed. Paul testified that Lopez forced Paul to perform oral sex on Lopez. According to the testimony at trial, the events occurred when Paul and Lopez were alone, so there were no other witnesses to corroborate either person’s story. Further, the State had no additional evidence of Lopez’s guilt. The trial was the prototypical “swearing match” between Lopez and Paul, so there was a heightened need on Lopez’s part to impeach Paul’s credibility.

But the evidence that Lopez sought to admit would not have achieved that goal. Lopez attempted to introduce evidence that Paul had previously falsely accused his mother of physical abuse. First, the prior accusation was never shown to be false. The record reflects that the Texas Department of Human Services “closed” the case and “ruled out” the abuse. But their file also indicates that the “likelihood of maltreatment is moderate” and that the ease was closed because the mother was seeking counseling. This could simply indicate a lack of evidence to prove the allegation at that time, or an administrative decision that, despite the allegation’s validity, the parties would best be served by closing the case.

In addition, the allegation that Paul’s mother had physically abused him by throwing him against a washing machine has almost nothing in common with Paul’s accusing Lopez of forcing Paul to perform oral sex on Lopez. Without proof that the prior accusation was false or that the two accusations were similar, the evidence fails to have any probative value in impeaching Paul’s credibility in this case. For these same reasons, the risk that this evidence would unduly prejudice and confuse the jury was high.

Although Paul’s credibility was a crucial issue, we conclude that the Confrontation Clause does not demand admissibility of this evidence. Its probative value was extremely low, and the risk that its admission would confuse the jury was high.

CONCLUSION

Since the evidence Lopez sought to admit was inadmissible under Rule 608(b), and the Confrontation Clause does not mandate its admissibility, we conclude the trial court properly refused to allow admission of the evidence.

We reverse the court of appeals and remand this case to that court to consider Lopez’s second point of error.

MANSFIELD, J., delivered a concurring opinion. KELLER, J. joins with concurring opinion. JOHNSON, J., delivered a concurring opinion.

MANSFIELD, J.,

delivered the

concurring opinion.

While I wholeheartedly agree with much of the well-written opinion of the majority and agree with the result it achieves, I cannot agree that a defendant accused of committing a sexual offense may not introduce evidence of prior accusations made by the complainant alleging commission of sexual offense(s) subsequently determined to be false.

The area of sex offenses is unique, having many aspects not found in connection with other offenses. First, in many cases, there is often little physical evidence and it often comes down to the word of the accuser versus that of the defendant. Often, the accuser is a young child whose memory may be limited or whose version of what may have actually occurred has been influenced by others with an agenda. In some instances, the accuser and the defendant know each other, and the accusation is motivated by financial considerations (i.e., blackmail), later regret over what was a “voluntary” sexual encounter involving alcohol or drug consumption, or retaliation for being “dumped.” Merely being publicly accused of a sex offense is devastating and results nearly always in the destruction of the reputation of the person (nearly always a male) so accused, even if subsequently found innocent. After all, the accused, but rarely the complainant, is the one whose name appears in print.

Given the above, fundamental fairness and due process require that the defendant charged with a sex offense be entitled, on cross-examination, to impeach the complainant with evidence that he/she has falsely accused others of having committed sex offenses against him/her. I would require the defendant, at the time the complainant is about to commence testifying, to inform the court, outside the presence of the jury, that he/she intends to introduce evidence of prior false accusations of sex offenses made by the complainant. The court would then be required to conduct a hearing, outside the presence of the jury, to evaluate said evidence and to determine if it is admissible. Its ruling would be subject on appeal to an abuse of discretion standard.

With these comments, I concur in the judgment of the Court.

KELLER, J.,

delivered a concurring opinion.

The Court today declines to adopt an across-the-board exception to Rule 608(b) for sexual offenses. I agree that a case-by-case approach is appropriate for determining when admission of evidence of pri- or false allegations is required by the Confrontation Clause. I think, though, that as a practical matter, evidence of prior false allegations will be admissible more often in sex cases than in most other types of offenses. The Court seems to suggest otherwise, and it is from this suggestion that I wish to distance myself.

The Court says that credibility of the witnesses is no more important in sex offenses than in any other case. Maybe so, but credibility is more likely to be the only factor in sex cases than it is in other types of cases. For most other kinds of offenses, one can expect corroborating evidence — missing property in a theft case, injury in an assault case, a body in a murder case. One can imagine scenarios in non-sex cases in which credibility of the witness is the only question for the jury, but they are exceptions to the norm. Usually there will be physical evidence of some kind which the jury may consider.

And consent is rarely raised in non-sex cases. When a defendant claims consent, physical evidence that sexual relations took place becomes moot; credibility of the parties becomes the whole question for the jury. I think that it is in sex cases that juries will most often be asked to reach a verdict solely on the basis of the uncorroborated testimony of a victim, and therefore I think that it is in sex cases that the balancing approach will most often render such evidence admissible.

I join the opinion of the Court.

Johnson, J.,

filed a concurring opinion.

I concur only in the judgment of the court. Appellant was convicted of aggravated sexual assault and indecency with a child. At trial, appellant attempted to impeach P.M., the complainant, with a report from the Texas Department of Protective And Regulatory Services (TDPRS) concerning an allegedly false accusation of physical abuse that the complainant had earlier made against his mother. The trial court excluded the evidence. The Court of Appeals found that Tex.R.CRIm. Evid. 608(b) (now Tex.R. Evid. 608(b)) prohibited this evidence from coming in, and that the exclusion of the evidence under Rule 608(b) violated appellant’s Confrontation Clause rights. Lopez v. State, 989 S.W.2d 402, 408 (Tex.App. — San Antonio 1999). It reversed and remanded for a new trial. Id. We granted the state’s petition for discretionary review to determine whether the trial court’s exclusion of this evidence violated appellant’s rights under the Confrontation Clause. See U.S. Const, amend. VI.

It appears from the record that the trial judge in the instant case did not base his decision on Rule 608(b). Instead, he stated that he was excluding the evidence because it was not “relevant to ... any of the matters that [were] on trial.... ” Tex R.Crim. Evid. 403. In fact, there is little evidence that this prior accusation was false. Although the case worker from TDPRS seemed skeptical of the accusation, it is not clear why she recommended that the case be closed. According to the Court of Appeals,

The case worker described P.M. as “very provocative and hard to handle,” and had “the run of the house.” She found that P.M. was unable to tell her what a “steel washer” was or where it was in his home, that P.M. did not have any injuries, and the incident was “ruled out.” The report indicated that P.M. had trouble making and keeping friends because he refused to bathe and because he lied to them. He “is constantly making up stories.” The case worker recommended that the case be closed.

Lopez, 989 S.W.2d at 404. The Court also noted that the recommendation that the case be closed was “based in part on the case worker’s conclusion that there was no corroborative evidence of physical abuse and also because P.M.’s mother was very cooperative in seeking counseling to help her deal with P.M.’s behavior.” Id. at 404 n. 2.

This evidence had little of probative value going to the falsity of the accusation; this is apparently why the trial judge excluded it. On this basis, I do not believe that the trial court abused its discretion in excluding the evidence. Furthermore, such exclusion did not violate appellant’s right of confrontation. As has been noted, trial judges retain wide latitude to impose reasonable limits on cross-examination. Such limits have been held not to conflict with the Confrontation Clause, which “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985)) (emphasis in original); see also Carroll v. State, 916 S.W.2d 494, 498 (Tex.Crim.App.1996). Therefore, I believe that the court of appeals erred in holding that appellant’s rights under the Confrontation Clause had been violated.

However, the majority appears to have accepted that there is a conflict between Rule 608(b) and the Confrontation Clause. In this regard, it states that “[w]e have previously indicated that the Confrontation Clause will prevail if there is a conflict between it and the rules of evidence,” and that “Rule 101(c) of the Rules of Evidence dictates that the Constitution should control if there is a conflict.” Ante, at 222. These statements indicate a misunderstanding of the law. Even without our previous statement or Tex.R. Evid. 101(c), any conflict between our rules of evidence and the Confrontation Clause would still require, as a matter of federal constitutional law, that the latter prevail over the former. See U.S. Const, art. VI, cl. 2 (Supremacy Clause). The issue, of course, is whether there is such a conflict. As noted above, I do not believe that there is such a conflict.

Based on the foregoing, I concur only in the judgment of the Court.

      . Lopez v. State, No. 04-96-00343-CR (Tex.App.—San Antonio 1997) (not designated for publication).

      . Lopez v. State, No. 97-1193 (Tex.Crim.App. 1998) (not designated for publication).

      . Lopez v. State, 989 S.W.2d 402 (Tex.App.—San Antonio 1999).

      . U.S. Const. Amend. VI; Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).

      . Davis, 415 U.S. at 315, 94 S.Ct. at 1110.

      . Ibid.

      . Hoyos v. State, 951 S.W.2d 503, 510 (Tex.App.—Houston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (Tex.Crim.App.1998).

      . Castillo v. State, 939 S.W.2d 754, 758 (Tex.App.—Houston [14th Dist.] 1997, pet. ref'd), quoting Hodge v. State, 631 S.W.2d 754, 758 (Tex.Crim.App. [Panel Op.] 1982).

      . Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App.1997).

      . Carroll v. State, 916 S.W.2d 494, 501 (Tex.Crim.App.1996).

      . Previously the Texas Rules of Criminal Evidence.

      . 719 S.W.2d 164, 173 (Tex.Crim.App.1985) (op. on reh'g).

      . Id. at 178.

      . 841 S.W.2d 407 (Tex.Crim.App.1992).

      . Id. at 410-11.

      . Ex parte Loyd, 580 So.2d 1374 (Ala. 1991); Covington v. State, 703 P.2d 436 (Alaska App.), rev'd on other grounds, 711 P.2d 1183 (Alaska 1985); State v. Hutchinson, 141 Ariz. 583, 688 P.2d 209 (Ariz.App.2d Div.1984); West v. State, 290 Ark. 329, 719 S.W.2d 684 (Ark.1986); People v. Hurlburt, 166 Cal.App.2d 334, 333 P.2d 82 (Cal.App. 1st Dist. 1958); People v. Sheperd, 37 Colo.App. 336, 551 P.2d 210 (1976); State v. Kelley, 229 Conn. 557, 643 A.2d 854 (Conn.1994); Smith v. State, 259 Ga. 135, 377 S.E.2d 158(Ga.), cert. denied, 493 U.S. 825, 110 S.Ct. 88, 107 L.Ed.2d 53 (1989); State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (Idaho 1984); People v. Alexander, 116 Ill.App.3d 855, 72 Ill.Dec. 338, 452 N.E.2d 591 (Ill.App. 1 st Dist. 1983); Little v. State, 413 N.E.2d 639 (Ind.App.2d Dist. 1980); State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288 (Kan.App.1989); State v. Cox, 298 Md. 173, 468 A.2d 319 (Md.1983); Comm. v. Bohannon, 376 Mass. 90, 378 N.E.2d 987 (Mass.1978); People v. Evans, 72 Mich. 367, 40 N.W. 473 (Mich.1888); State v. Caswell, 320 N.W.2d 417 (Minn. 1982); State v. Anderson, 211 Mont. 272, 686 P.2d 193 (Mont.1984); Miller v. State, 105 Nev. 497, 779 P.2d 87 (Nev.1989); State v. Ellsworth, 142 N.H. 710, 709 A.2d 768 (N.H.1998); State v. Johnson, 102 N.M. 110, 692 P.2d 35 (N.M.App.1984); People v. Mandel, 48 N.Y.2d 952, 401 N.E.2d 185, 425 N.Y.S.2d 63 (N.Y.1979); State v. Baron, 58 N.C.App. 150, 292 S.E.2d 741 (N.C.App. 1982); State v. Kringstad, 353 N.W.2d 302 (N.D.1984); State v. Boggs, 63 Ohio St.3d 418, 588 N.E.2d 813, 816-18 (Ohio 1992);
        Woods v. State, 657 P.2d 180 (Okla.Crim.App. 1983); State v. Nab, 245 Or. 454, 421 P.2d 388 (Or.1966); State v. Izzi, 115 R.I. 487, 348 A.2d 371 (R.I.1975); State v. Boiler, 302 S.C. 381, 396 S.E.2d 364 (S.C.1990); State v. Sieler, 397 N.W.2d 89 (S.D.1986); State v. Warner, 79 Utah 510, 13 P.2d 317 (Utah 1932); Clinebell v. Comm., 235 Va. 319, 368 S.E.2d 263 (Va.1988); State v. Demos, 94 Wash.2d 733, 619 P.2d 968 (Wash. 1980).

        . Hurlburt, 333 P.2d at 85; Nab, 421 P.2d at 390; Izzi, 348 A.2d at 372.

      . Hurlburt, 333 P.2d at 85; Nab, 421 P.2d at 391.

      . Nab, 421 P.2d at 391.

      . Lynn Hecht Schafran, Women in the Criminal Justice System; Writing and Reading About Rape: A Primer, 66 St. John's L.Rev. 979, 1013 (1993).

      . Boutwell, 719 S.W.2d at 177.

      . 1 Goode, Wellborn & Sharlot, Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 608.1 (Supp.1998).

      . Id. at § 608.1 (1993).

      . Boggs, 588 N.E.2d at 816-17.

      . Ibid.

      . Lagrone, 942 S.W.2d at 613.

      . I note particularly the false charges of child sexual abuse that have resulted from "junk science” such as repressed memory syndrome and in divorce cases where such charges are used occasionally as a form of extortion to gain a favorable outcome with respect to custody and/or property division. I also acknowledge, however, that many bona fide cases involving sex crimes are not reported, for various reasons.

      . I agree with the opinion of the majority that evidence of prior false accusations of sexual misconduct, to be admissible, must be "clear and convincing.”

      . The majority has, perhaps reasonably, assumed that "steel washer” means a washing machine. Ante, at 222, 226. However, the record offers nothing to support that assumption.