author: SUE WALKER, Justice.

text:
    CITY OF FORT WORTH, Appellant, v. David Lee TUCKNESS, Appellee.
    No. 2-04-098-CV.
    Court of Appeals of Texas, Fort Worth.
    May 5, 2005.

      Ted P. Gorski, Jr., Elizabeth Dierdorf, Asst. City Attys., Fort Worth, for Appellant.
    King & King, L.L.P., and Phil King, Weatherford, Law, Snakard <& Gambill, P.C., P.C., and Ed Huddleston, and Dab-ney D. Bassel, Fort Worth, for Appellee.
    Panel A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

The only issue we address in this appeal is whether Appellant City of Fort Worth possessed standing to bring a motion to set aside the trial court’s order of expunction entered in favor of Appellee David Lee Tuckness. Fort Worth, Tuckness’s employer, was not listed in Tuckness’s ex-punction petition as a law enforcement entity having records or files subject to ex-punction, and accordingly, it received no notice of the expunction proceedings. See Tex.Code CRIM. Proc. Ann. art. 55.02, § 2(b)(8), (c) (Vernon Supp.2004-05). After the trial court entered an expunction order, Fort Worth filed a motion to set it aside, but the trial court ruled that Fort Worth lacked standing. Because Fort Worth was not a party to the expunction proceedings, is not bound by the expunction order’s mandate to destroy records or to return them, and will not suffer, by virtue of the expunction order, any peculiar injury not suffered by the public generally, we hold that Fort Worth lacked standing to challenge the order of expunction. We affirm. .

II. Factual and ProcedüRal BACKGROUND

Tuckness is a corporal in the Fort Worth Police Department. On August 11, 2002, Tuckness was arrested in Parker County and charged by information with misdemeanor assault. The Parker County Attorney subsequently moved to dismiss the misdemeanor complaint, citing insufficient evidence to proceed with the trial and the fact that the complaining witness had requested that the cause be dropped. Tuckness then filed a petition seeking to expunge the dismissed misdemeanor. Tuckness’s petition for expunction listed numerous law enforcement entities that Tuckness had reason to believe possessed records subject to expunction, but the petition did not list the City of Fort Worth as one of those entities. The trial court conducted an evidentiary hearing and on January 22, 2004 granted Tuckness’s petition for expunction.

In the meantime, as a result of Tuckness’s arrest and the alleged offense, Fort Worth suspended Tuckness for 218 days without pay. After the misdemeanor complaint was dismissed, Tuckness requested a hearing before an independent third-party examiner in order to recover $45,000 in backpay and benefits resulting from his suspension. At the backpay hearing before the examiner on February 3, 2004, Tuckness attempted to introduce the expunction order into evidence, but because Fort Worth claimed that it was previously unaware of the order, the hearing officer postponed the hearing. The hearing officer in this separate proceeding has not yet made any ruling concerning the admissibility of Fort Worth’s files and records, specifically a January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’ and Police Officers’ Civil Service Commission explaining the reasons for Tuckness’s suspension.

Fort Worth then filed with the trial court that issued Tuckness’s expunction order, in the same cause number, a motion and an amended motion to set aside the order of expunction. Fort Worth claimed that it “did not receive reasonable notice [of Tuckness’s petition for expunction] pri- or to the expunction hearing as required by [article 55.02, § 2(b)(8) of the Texas Code of Criminal Procedure].” Fort Worth claimed that it was entitled to notice of the expunction hearing so that it could show that Tuckness was not entitled to an expunction of the documents it possessed as Tuckness’s employer. Tuckness countered Fort Worth’s motion to set aside by filing a plea in abatement averring that Fort Worth lacked standing to assert the claims raised in its motion to set aside.

The trial court conducted a hearing on March 3, 2004, and it subsequently entered a March 9, 2004 order finding that Fort Worth lacked standing to bring its motion to set aside and dismissing that motion, therefore granting Tuckness’s plea in abatement. Fort Worth appeals the trial court’s order finding that it lacks standing to bring its motion to set aside the expunction order.

III. Standing

The issue of standing is a legal question that we review de novo. City of Arlington v. Scalf, 117 S.W.3d 345, 347 (Tex.App.-Fort Worth 2003, pet. denied). The test for standing requires that there be a real controversy between the parties that will actually be determined by the judicial declaration sought. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex.1996). To establish standing, one must show a justi-ciable interest by alleging actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-47 (Tex.199s3).

Fort Worth claims that it has standing to move to set aside Tuckness’s expunction order because it was entitled to notice of Tuckness’s petition for expunction pursuant to Texas Code of Criminal Procedure article 55.02, section 2(b)(8) and (c). Tex. Code CRiM. PROC. Ann. art. 55.02, § 2(b)(8), (c). The statutory provisions governing expunction procedures require that the petition for expunction include a list of all law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state and of all central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to ex-punction.

Id. § 2(b)(8). Each official, agency, or entity listed in the petition is entitled to reasonable notice of the expunction hearing by certified mail, return receipt requested. Id. § 2(c); Tex. Dept, of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.-San Antonio 1997, no pet.) (op. on reh’g) (holding law enforcement agencies listed in the expunction petition entitled to notice of expunction hearing).

Once an expunction order is entered, every law enforcement official, agency, or other entity listed in the expunction order holding records or files concerning the expunged arrest is served with the expunction order and is required to return all records and files subject to the expunction order or, if removal is impracticable, to obliterate all portions of the record or file that identify the person who is the subject of the order. Tex.Code CRIM. PROC. Ann. art. 55.02, §§ 3(c), 5(a). An entity that is not listed in the expunction petition, and consequently is not listed in the ex-punction order, however, is not bound by a court order to destroy records or to return them. Op. Tex. Att’y Gen. No. LO-93-88 (1993) (opining that because “expungement order does not name the Department of Protective and Regulatory Services ... [it] is therefore not required to comply with the article 55.02 requirement that officials and agencies named in the order return records subject to the order to the court or obliterate identifying information if it is impractical to return them”); see also 43B Drx & Dawson, Texas PRACTICE: CRIMINAL Practice & Procedure § 48.50 (2001) (“Agencies that were not served with notice of the expunction proceedings are not bound by court order to destroy records.”). Although an entity not listed in the petition is not required to destroy, return, or obliterate information from expunged records, such an entity is nonetheless prohibited from releasing, disseminating, or using the expunged records and files for any purpose. Tex.Code Crim. Proc. Ann. art. 55.03 (Vernon Supp.2004-05).

We now turn to the issue of whether Fort Worth, via its motion to set aside Tuckness’s expunction order, established standing. Fort Worth’s motion to set aside Tuckness’s expunction order does not indicate that Fort Worth was a “law enforcement agency” or purported “entity of this state” holding records subject to expunction in that capacity. See Tex.Code Crim. Proc. Ann. art. 55.02, § 2(b)(8) (listing entities commonly maintaining arrest records). Fort Worth does not argue that it obtained records or files relating to Tuckness’s arrest because it is a governmental entity. Instead, Fort Worth’s motion to set aside indicated only that it possessed nonexpungable information concerning Tuckness’s arrest in its capacity as Tuckness’s employer. Specifically, Fort Worth asserts that the January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’ and Police Officers’ Civil Service Commission explaining the reasons for Tuckness’s suspension should not be subject to expunction. As an employer and an entity not listed in Tuckness’s petition for expunction, however, Fort Worth is not required to destroy or to obliterate any records pursuant to the expunction order. See Op. Tex. Att’y Gen., No. LO-93-88. Because Fort Worth is not subject to the expunction order’s provisions concerning destruction or obliteration of records or files regarding Tuckness’s expunged arrest, no real controversy exists between the parties; that is, Tuckness’s expunction order does not harm Fort Worth by requiring destruction or obliteration of any of Fort Worth’s records or files. See Tex. Ass’n of Bus., 852 S.W.2d at 444 (explaining that allegation of actual or imminent threat of some injury is required to establish standing).

We next examine whether the statutory provision that an entity, even one not listed in the expunction petition or order, is nonetheless prohibited from releasing, disseminating, or using the expunged records and files for any purpose gives Fort Worth standing to contest Tuckness’s expunction order. See Tex. Code CRIM. PROC. Ann. art. 55.03. Fort Worth claims that it needs the January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’ and Police Officers’ Civil Service Commission explaining the reasons for Tuckness’s suspension to defend against Tuckness’s claim for back-pay. In a similar situation, the Dallas Court of Appeals rejected the district attorney’s argument that records and files his office held should not be subject to expunction because the district attorney’s office might need the records for use in a possible civil action arising out of the expunged arrest. W.V. v. State, 669 S.W.2d 376, 378 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). The Dallas Court of Appeals held,

[Retention of the expunction files is not necessary to afford the district attorney’s office the protection from civil actions which it seeks. The expunction statutes contemplate that, while the indictment and arrest record may be returned to the petitioner, the expunction file will be retained by the court subject to inspection only by the petitioner. Article 55.02 § 5(c). If the petitioner should file a civil action arising out of his arrest, he necessarily by his own allegations makes the materials contained in the expunged records, as well as the contents of the expunction file, a matter of public record subject to discovery proceedings. This question was presented to the superior court of New Jersey in Ulinsky v. Avignone, 148 NJ.Super. 250, 372 A.2d 620 (1977), under an expunction statute which denied access to anyone, including the petitioner. The court there stated: “The remedy of expungment was never intended as a device by which a plaintiff in a malicious prosecution suit could control the availability of evidence relative thereto.” The court held that a refusal to consent to disclosure of the record required dismissal of the civil action. We can perceive of no reason under our expunction statutes that a Texas court would not grant similar relief.

Id. at 379. Thus, under article 55.03 of the code of criminal procedure, Fort Worth may release, disseminate, or use any of its records that are not classified as “expunged records” to the same extent that the general public may release, disseminate, or use records not classified as expunged records. See Tex.Code CRIM. PROC. Ann. art. 55.03. Under article 55.03 of the code of criminal procedure Fort Worth may release, disseminate, or use any of its records that are classified as “expunged records” for the purpose of defending itself in a proceeding arising out of the arrest to the same extent as any entity or member of the general public in the same situation. Id.; accord W.V., 669 S.W.2d at 378. Consequently, Fort Worth has not shown or alleged any actual or imminent threat of injury not suffered by the public generally. Tex. Ass’n of Bus., 852 S.W.2d at 443-47. We hold that, here, Fort Worth does not possess standing to challenge in the trial court the expunction order entered in favor of Tuckness. We overrule Fort Worth’s sole issue.

IV. Conclusion

Having overruled Fort Worth’s issue, we affirm the trial court’s judgment.

      . See Tex. Loc. Gov't Code Ann. § 143.056(a) (Vernon. 1999).

      . See id. § 143.056(e).

      . The record before us — involving Tuckness’s expunction — obviously contains no reporter’s record from the February 3, 2004 hearing before the independent third-party examiner and contains no documents from that hearing except to the extent that documents were attached to Fort Worth’s motion to set aside Tuckness’s expunction.

      .The crux of Fort Worth’s complaint on appeal concerns this letter. Fort Worth argues that it needs this letter to justify its actions in Tuckness’s backpay hearing and that Tuckness cannot cause this letter to be expunged absent notice to Fort Worth of the expunction proceedings.

      . The expunction statute authorizes expunction of "all records and files relating to the arrest.” Tex.Code Crim. Proc. Ann. art. 55.01. The records and files relating to an arrest generally consist of the indictment and the photographs, fingerprints, and other matters comprising the arrest record and records concerning the expunction proceeding. Carson v. State, 65 S.W.3d 774, 785 (Tex.App.-Fort Worth 2001, no pet.) (op. on reh’g). Records and files unrelated to the expunged arrest are not subject to expunction. TexCode Crim. Proc. Ann. art. 55.01. We do not reach the issue of whether the January 14, 2003 letter is a "record or file relating to the arrest.”


source: Caselaw Access Project

author: DIXON W. HOLMAN, Justice.

license: Public Domain

text:
    PALLADIAN BUILDING COMPANY, INC. and Nortex Foundation Designs, Inc., Appellant and Appellee, v. NORTEX FOUNDATION DESIGNS, INC. and Palladian Building Company, Inc., Appellee and Appellant.
    No. 2-04-159-CV.
    Court of Appeals of Texas, Fort Worth.
    May 5, 2005.

      Carpenter Law Firm, P.C., N. Scott Carpenter and James P. Acosta, Plano, for Appellant and Cross-Appellant.
    MacDonald Devin, P.C., Gregory Norman Ziegler, and David C. Colley, Dallas, for Appellee and Cross-Appellee.
    Panel A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

In this case of first impression, Palladian Building Company, Inc. (Palladian) appeals from a judgment dismissing its suit without prejudice against Nortex Foundation Designs, Inc. (Nortex), a design professional, because Palladian did not provide an affidavit of a third-party professional engineer as required by statute. Nortex cross-appeals contending the dismissal should have been “with prejudice.” We affirm.

BACKGROUND

This case concerns a dismissal of Palla-dian’s case under Chapter 150 of the Texas Civil Practice and Remedies Code which was enacted effective September 1, 2003. See id. This chapter pertains to a lawsuit against a “design professional,” which means “a registered architect or licensed professional engineer.” Id. § 150.001. The chapter specifies that when a plaintiff files a petition alleging professional negligence by a design professional, the plaintiff must contemporaneously file an affidavit of a third-party design professional setting forth at least one negligent act, error, or omission claimed to exist and the factual basis for each claim. Id. § 150.002(a), (b).

The entirety of section 150.002 provides as follows:

§ 150.002. Certificate of Merit

(a) In any action for damages alleging professional negligence by a design professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party registered architect or licensed professional engineer competent to testify and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer or registered architect shall be licensed in this state and actively engaged in the practice of architecture or engineering.
(b) The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party registered architect or professional engineer could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.
(c) The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit.
(d) The plaintiff’s failure to file the affidavit in accordance with Subsection (a) or (b) may result in dismissal with prejudice of the complaint against the defendant.
.(e) This statute shall not be construed to extend any applicable period of limitation or repose.

Tex. Civ. Prac. & Rem.Code Ann. § 150.002 (emphasis added).

On October 1, 2003, Palladian filed its original petition against Nortex, an engineering firm that the parties agree meets section 150.001’s definition of a design professional; Palladian filed its amended petition on February 9, 2004. At the time it filed its original petition and its amended petition, Palladian did not file the required expert’s affidavit.

After Nortex filed its answer, it filed a motion to dismiss Palladian’s petition pursuant to section 150.002(d). On April 7, 2004, Palladian responded by stating that its failure to file the required affidavit was an oversight and not intentional. Palladi-an did not tender the expert’s affidavit, but requested additional time to amend its petition and provide the required affidavit. Palladian also asserted that Nortex had waived its right to move for dismissal because it had filed its original answer when section 150.002 did not require it to do so, and because Nortex had engaged in discovery and sought affirmative relief by filing two motions for summary judgment.

On April 23, 2004, the trial court signed its judgment granting Nortex’s motion and dismissing Palladian’s case. Although Nortex sought a dismissal with prejudice, the trial court’s judgment dismissed without prejudice to refiling by Palladian.

The trial court’s judgment recites that on April 8, 2004, the court considered Nor-tex’s motion to dismiss, the evidence, and argument of counsel. The appellate record does not indicate if an actual hearing was held on Nortex’s motion to dismiss, although there is a handwritten notation on the face of the motion stating “30 min. Set 4/8/04 @2 PM [unreadable abbreviation] 4/1/04 MB.” Additionally, Nortex’s appellate brief recites that a hearing was held on its motion to dismiss, that Palladi-an did not present any evidence at the hearing, and that Palladian did not request that a court reporter record the hearing. We cannot determine from the record whether the “evidence” that the trial court considered consisted of the two exhibits attached to Nortex’s motion to dismiss or was evidence presented at a hearing on the motion. The trial court was not requested to and did not file findings of fact and conclusions of law.

PROPRIETY OF DISMISSAL

Standard of Review

The parties agree that we review the trial court’s dismissal of Palladian’s suit under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (holding trial court’s dismissal of case under former article 4591i was reviewed for abuse of discretion); Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 619-20 (Tex.App.-Corpus Christi 2000, pet. denied); Mercure Co., N.V. v. Rowland, 715 S.W.2d 677, 680 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.).

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert, denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.

An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).

Did Nortex waive its right to seek a dismissal under section 150.002?

Palladian contends that Nortex waived its right to complain that Palladian failed to file the required expert’s affidavit because Nortex substantially invoked the judicial process prior to filing its motion to dismiss. Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right. Jemigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003); Sun Exploration and Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987). Although waiver is ordinarily a question of fact, when the facts and circumstances are admitted or clearly established, the question becomes one of law. Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass’n, Inc., 1 S.W.3d 108, 111 (Tex.1999). There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Jernigan, 111 S.W.3d at 156; Maryland Cas. Co. v. Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex.1966).

Palladian acknowledges there is no case-law to support its contention that the doctrine of waiver applies to a dismissal sought under section 150.002, but Palladi-an analogizes the facts of the instant case to cases involving arbitration that have held that a party has waived its right to compel arbitration by substantially invoking the judicial process.

Palladian argues that Nortex voluntarily filed numerous documents and sought affirmative relief in the trial court, and therefore the doctrine of waiver applies so as to preclude Nortex from complaining of Palladian’s non-compliance with section 150.002. Specifically, Palladian argues that Nortex filed an original and an amended answer before it was required to do so under section 150.002(c), responded to interrogatories, propounded requests for production, responded to requests for production, propounded requests 'for disclosures, responded to requests for disclosure, noticed and deposed Palladian’s corporate representative, and filed two motions for summary judgment.

If our analysis of Palladian’s waiver argument could be based solely on a review of documents contained in the trial court’s file that are included in the clerk’s record on appeal, it would be irrelevant that a reporter’s record has not been filed from any hearing held on Nortex’s motion to dismiss. However, although the clerk’s record on appeal contains Nortex’s original and amended answers, it does not contain any of the other documents that Palladian relies upon in support of its assertion that Nortex had sought affirmative relief and substantially invoked the judicial process in the trial court, and had therefore waived its right to seek dismissal. We are not permitted to consider unsworn statements in an appellate brief regarding the procedural history of the case in the trial court, unsupported by documents in the appellate record.

We conclude it was not unreasonable or inconsistent for Nortex to elect to file an original or amended answer prior to filing its motion to dismiss for Palladian’s failure to file the required expert’s affidavit. Without determining whether a plaintiff may in fact assert the doctrine of waiver in response to a defendant’s motion to dismiss under section 150.002, we hold that based upon the appellate record in this case Nortex took no action that would preclude it from seeking dismissal of Palla-dian’s lawsuit.

Did the dismissal constitute the equivalent of a death penalty sanction that violated TransAmerican Natural Gas Corp. and was therefore an abuse of discretion?

Section 150.002(d) provides that a plaintiffs failure to file the required expert’s affidavit “may result in dismissal with prejudice.” Tex. Crv. PRAC. & Rem.Code Ann. § 150.002(d) (emphasis added). This is directory language that gives a trial court discretion in determining whether it is appropriate to dismiss a plaintiffs case when an expert’s affidavit is not filed by plaintiff. See Tex. Gov’t Code Ann. § 311.016 (Vernon 2005) (Code Construction Act specifies that “ ‘May’ creates discretionary authority or grants permission or a power.”).

Palladian contends we must review the trial court’s dismissal judgment to determine if there is a direct relationship between Palladian’s offensive conduct and the sanction imposed, and whether the sanction is excessive. However, because we do not have a reporter’s record from any hearing held on Nortex’s motion to dismiss, we cannot review what occurred at the hearing. Without a record of the evidence and argument presented to the trial court, we are unable to conclude that the trial court abused its discretion in exercising its discretionary power to dismiss Palladian’s suit.

Conclusion

We hold the trial court did not abuse its discretion in dismissing Palladian’s suit against Nortex because Palladian failed to file the affidavit required by section 150.002. We overrule Palladian’s sole issue.

DISMISSAL WITH OR WITHOUT PREJUDICE?

Section 150.002(d) provides that “[t]he plaintiffs failure to file the affidavit in accordance with Subsection (a) or (b) may result in dismissal with prejudice of the complaint against the defendant.” Tex. Crv. PRAC. & Rem.Code Ann. § 150.002(d). The trial court dismissed Palladian’s case against Nortex without prejudice. In its sole issue on cross-appeal, Nortex contends that under the plain meaning of section 150.002(d), once the trial court exercised its discretion and determined that dismissal of Palladian’s suit was appropriate, the case must be dismissed with prejudice because the statute does not give the trial court any other option.

Standard of Review

The parties disagree regarding the standard of review we should apply when analyzing Nortex’s argument that the trial court should have dismissed Palladian’s lawsuit with prejudice. Nortex argues that matters of statutory construction are questions of law to which appellate courts apply a de novo standard of review. Palla-dian disagrees and contends we must determine whether the trial court abused its' discretion in dismissing without prejudice. Palladian argues that the specific language of section 150.002(d) — “may dismiss with prejudice” — necessarily implies that the trial court had discretion to dismiss with or without prejudice.

We agree with Nortex that statutory construction, is a question of law that we review de novo. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). However, once we determine the proper construction of the statute, we must then review whether the trial court abused its discretion in the manner in which it applied the statute to the instant case.

Our primary goal in construing a statute is to ascertain and effectuate the legislature’s intent, see Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999), which we determine from the plain and common meaning of the actual language used. See In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 486-87 (Tex.2001) (orig.proceeding). We should read every word, phrase, and expression in a statute as if it were deliberately chosen. Calstar Props., L.L.C. v. City of Fort Worth, 139 S.W.3d 433, 438 (Tex.App.-Fort Worth 2004, no pet.). Every word of a statute must be presumed to have been used for a purpose; likewise, every word excluded from a statute must also be presumed to have been excluded for a purpose. Laid-law Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Only when it is necessary to give effect to the clear' legislative intent can we insert additional words into a statutory provision. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 552 (Tex.1981).

Discussion

Although Nortex in its briefs and in oral argument discussed what it believed the legislature intended when it enacted section 150.002 (to thwart frivolous suits against design professionals), it does not cite us to any legal reference, legislative history, or other authoritative comments in support of its argument. Palladian ac- • knowledged in. oral argument that no legislative history exists regarding the legislature’s intent in enacting the statute, and that the statute itself does not reflect its purpose or include a stated policy.

As discussed earlier in this opinion, the legislature used directory language when it provided that failure to file the required expert’s affidavit “may result in dismissal with prejudice.” Obviously, the trial court has broad discretion in determining whether dismissal of a plaintiffs case is appropriate. Once the trial court exercises this discretion, and determines that dismissal is warranted, the statute is worded so as to permit but not require that the dismissal be with prejudice. Applying the applicable rules of statutory construction, we conclude that the statute may be construed to give a trial court authority to dismiss with or without prejudice. If the legislature had intended to mandate that the trial court only dismiss with prejudice, the statute could easily have been so worded; therefore, we presume the legislature had a purpose when it used the words “may result in dismissal with prejudice.” [Emphasis added.]

Conclusion

We hold the trial court did not abuse its discretion in dismissing Palladian’s suit against Nortex without prejudice. See Tex. Civ. Peac. & Rem.Code Ann. § 150.002(d). Accordingly, we overrule Nortex’s sole issue.

CONCLUSION

Because we have overruled the issues of both appellants, we affirm the judgment of the trial court.

      . See Tex Civ. Prac. & Rem.Code Ann. §§ 150.001-.002 (Vernon 2005).

      . The statute states the plaintiff must file the expert’s affidavit with the filing of plaintiff's "complaint.” We interpret the statute to pertain to the filing of plaintiff’s “petition,” which commences a civil suit. See TexR. Civ. P. 22 ("A civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk.’’).

      . Nortex's motion to dismiss attached two exhibits: a copy of section 150.002 and the affidavit of Robert Lemke, president of Nor-tex, stating Nortex is a professional engineering firm and concluding he has reviewed Palladian’s petition and does not find the required affidavit. Palladian's response did not attach any exhibits. Neither Nortex's motion to dismiss nor Palladian's response to the motion to dismiss were verified.

      . Palladian did not file a motion for new trial and acknowledged in oral argument before this court that it never submitted an expert’s affidavit to the trial court.

      . The trial court's docket sheet does not reflect whether a hearing was held. The docket sheet recites: "4/8/04 Motion to Dismiss Chapter 150 TPRC.[;] 4/12/04 Dismiss Granted [judge’s initials;] 4-23-04 Order Granting Defts. M. to Dsms. s/ljudge’s initials].”

      . The appellate record does not contain any request by Palladian that the court reporter prepare a reporter’s record for filing in this court. See Tex.R.App. P. 34.6(b). On the docketing statements filed by the parties, each party has checked the box "None” following “Reporter’s or Recorder’s Record.” This could be construed to mean no reporter's record exists because there was no hearing held on Nortex’s motion, or a hearing was held but it was not recorded by the court reporter.

      . We do not intend to imply that findings of fact and conclusions of law are required following a dismissal under section 150.002.
      Rather, findings of fact, although not required, can properly be considered by the appellate court in an appeal from any judgment based in any part on an evidentiary hearing. See IKB Indus. (Nigeria) v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex.1997); see also Int'l Union v. General Motors Cotp., 104 S.W.3d 126, 128-29 (Tex.App.-Fort Worth 2003, no pet.) (holding findings and conclusions are appropriate following evidentiary hearing if trial court is called upon to determine questions of fact based on conflicting evidence but not where trial court rules without determining questions of fact); Samuelson v. United Healthcare of Tex., Inc., 79 S.W.3d 706, 710 (Tex.App.-Fort Worth 2002, no pet.) (holding that where abuse of discretion standard of review applies to a trial court’s ruling, findings of fact and conclusions of law, while helpful, are not required).

      . Palladian cites the following cases that deal with waiver in the context of arbitration: In re Bruce Terminix Co., 988 S.W.2d 702 (Tex. 1998) (orig.proceeding); In re Winter Park Constr., Inc., 30 S.W.3d 576 (Tex.App.-Texar-kana 2000, orig. proceeding); EZ Pawn Corp. v. Gonzalez, 921 S.W.2d 320 (Tex.App.-Corpus Christi 1996, writ denied); Marble Slab Creamery, Inc. v. Wesic, Inc., 823 S.W.2d 436 (Tex.App.-Houston [14th Dist.] 1992, no writ).

      . Additionally, Palladian’s request to the trial court clerk to include items in the appellate record did not contain a request for any of these items. See Tex.R.App. P. 34.5(b)(1).

      . TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991 )(orig.proceeding).

      . Compare section 150.002(d) with section 74.351(b) of the Texas Civil Practice and Remedies Code which provides that if a plaintiff in a health care liability case fails to timely submit an expert report, the trial court "shall ... enter an order that ... dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.” Tex. Civ. Prac. & Rem.Code Ann. §§ 150.002(d), 74.351(b) (Vernon 2005).


author: DAVID PURYEAR, Justice.

text:
    Luis Angel AVILES, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00613-CR.
    Court of Appeals of Texas, Austin.
    May 12, 2005.
    Robert O. Harris III, Lisa A. Kubala, Killeen, TX, for appellant.
    C. Stephen Hughes, Administrative Assistant D.A., Belton, TX, for appellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

A jury found appellant Luis Angel Aviles guilty of retaliation for threatening to kill a prosecutor. See Tex. Pen.Code Ann. § 36.06(a) (West Supp.2004-05). The district court assessed punishment at twenty years’ imprisonment. In a single point of error, appellant contends that the district court erred in admitting the testimony of an interpreter, appointed by the court for a different criminal proceeding involving appellant, because the attorney-client privilege prohibited her from testifying to the threat. We overrule this contention and affirm.

SUMMARY OF FACTS

In 2002, appellant was charged with burglary. His attorney negotiated a plea with the prosecutor that would result in a five-year sentence. Appellant wanted to proceed with trial, so he wrote a letter to the district court to express dissatisfaction with his attorney. Also, although appellant could communicate in English, his proficiency was limited, so he requested that the court provide him with an interpreter. Pursuant to the Texas Code of Criminal Procedure section 38.30, the court appointed a Spanish-language interpreter who was certified by the State. See Tex.Code Crim. Proc. Ann. art. 38.30 (West Supp.2004-05).

Because the letter created tension in their attorney-client relationship, appellant’s attorney filed a motion to have himself removed as counsel. On October 30, 2002, while waiting in the courtroom for them hearing on this motion, the attorney spoke with the prosecutor, who indicated that she would pursue a more severe charge if appellant refused the plea. A few minutes later, with the interpreter present, appellant’s attorney then spoke to appellant in English, explaining both the consequences of proceeding with trial and the purpose of that day’s hearing. The interpreter, out of the hearing of appellant’s attorney, then summarized this information in Spanish. During this discussion, appellant shaped his hand like a pistol, pointed it at the prosecutor, and told the interpreter, “Cuando salga de aqui la mato,” which according to the interpreter means “When I get out of here, I’ll kill her.” Other attorneys, parties, and court personnel were in the courtroom for that day’s docket call, but no other witnesses, including the prosecutor, heard the words, although appellant’s attorney saw the gesture.

The interpreter repeated this threat to appellant’s attorney.- Because they considered the threat serious, appellant’s attorney and the interpreter together reported it to the prosecutor, who repeated it to the District Attorney. Under the statutory definition of retaliation, a threat to harm a public official is a felony. Tex. PemCode Ann. § 36.06(a). Although appellant’s attorney testified at the trial for the retaliation offense that he heard appellant make a similar statement in English prior to the Spanish-language threat, appellant was indicted for the Spanish-language threat only. At appellant’s trial for the retaliation offense, therefore, the interpreter was the sole witness to this statement. Appellant was subsequently convicted, the sentence was enhanced based upon prior felony convictions, and this appeal followed.

DISCUSSION

The question considered in this appeal is whether the communication of the threat between appellant and his court-appointed interpreter is confidential. Appellant argues that, because an interpreter serves as an agent of the client or of the client’s attorney, Texas Rule of Evidence 503 regarding attorney-client privilege prohibited the interpreter from testifying about the threat at trial. The issue therefore is whether the attorney-client privilege applies under Rule 503 when a criminal defendant makes a threat in the presence of his court-appointed interpreter.

We review a trial court’s decision to admit evidence under an abuse of discretion standard. Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App.2004). Communications protected by the attorney-client privilege are generally inadmissible at trial: “A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (A) between the client or a representative of the client and the client’s lawyer or a representative of the lawyer. ...” Tex.R. Evid. 503(b)(1). This rule protects client communications to a lawyer or a lawyer’s representative. Id. Appellant would have us categorize a court-appointed interpreter as a “representative of a lawyer” under the Rule: “one employed by the lawyer to assist the lawyer in the rendition of professional legal services.” Id. at 503(a)(4)(A).

We need not determine whether a court-appointed interpreter is the representative of a lawyer, however, because the communication at issue was not made for the rendition of professional legal services and is therefore not covered by the attorney-client privilege. Rule 503 defines a “confidential communication” as one “not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.” Id. at 503(a)(5) (emphasis added). The Rule has similar language in the description of the privilege itself: “confidential communications made for the purpose of facilitating the rendition of professional legal sewices. ...” Id. at 503(b)(1) (emphasis added).

The Court of Criminal Appeals has indicated that when a client informs his attorney of an intent to commit a future crime, that communication is not for the purpose of facilitating the rendition of professional legal services. Henderson v. State, 962 S.W.2d 544, 554-55 (Tex.Crim. App.1997). The Court in Henderson examined the interplay of the Disciplinary Rules and Rule 503 regarding revelation of information to prevent potential death or serious bodily injury: “The client cannot use Rule 503 to prevent an attorney’s disclosure, in accordance with the disciplinary rules, of ongoing or future criminal activity.” Id. at 556. Such communication is “arguably” not for the purpose of facilitating the rendition of professional legal services, so the privilege presents “no bar to disclosure.” Id. at 555. In the instant case, appellant threatened to commit homicide, which the interpreter, who in nine years of experience had never heard a defendant utter such a threat, took seriously. Appellant was specific about his intent: he pointed directly at the prosecutor when he said he would kill her, and he formed his hand into the shape of a gun. Appellant’s communication of a threat to kill to his court-appointed interpreter can in no way be considered necessary to the rendition of legal services for his pending burglary trial. We hold that this communication of an intent to commit a crime is not covered by the attorney-client privilege, rendering irrelevant the role the interpreter may have been serving at the time of the communication. Accordingly, the trial court did not abuse its discretion in allowing the interpreter to testify about the threat.

CONCLUSION

Because the communication of the intent to commit a crime falls outside of the protection of the attorney-client privilege, Rule 503 does not bar the admission of the communication into evidence. The trial court did not abuse its discretion in allowing the interpreter to testify about the threat. The judgment of the trial court is affirmed.

      . Although appellant urges us to consider the revelation of the threat as forbidden by Disci-plinaiy Rule of Professional Conduct 1.05, that Rule does not apply because this appeal is limited to the decision by the trial court to permit testimony about the threat at trial, a decision governed by Texas Rule of Evidence 503.

      . Further, the attorney-client privilege sometimes yields to accommodate public policy: "There may be circumstances so grave ... that the privilege must yield to the most fundamental values of our justice system.” Henderson v. State, 962 S.W.2d 544, 556 (Tex. Crim.App.1997).

      . This fact renders the role in which the interpreter may have been serving at the time of the threat irrelevant.


text:
    Edmund KAHOOKELE, Appellant, v. The STATE of Texas, Appellee.
    No. 03-04-00493-CR.
    Court of Appeals of Texas, Austin.
    May 12, 2005.

      Richard E.' Wetzel, Austin, for Appellant.
    Sally Swanson, Asst. Dist. Atty., for Ap-pellee.
    Before Chief Justice LAW, Justices PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

In May 1995, appellant Edmund Ka-hookele pleaded no contest to engaging in organized criminal activity by conspiring during the months of May through July 1993 to commit burglary of a building and theft of more than $20,000. See Tex. Pen. Code Ann. § 71.02 (West Supp.2004-05). As called for in a plea bargain agreement, the district court deferred adjudication of guilt and placed Kahookele on community supervision for ten years. In July 2004, the court adjudicated Kahookele guilty and imposed a twenty-year prison sentence. This appeal followed.

In a single point of error, Kahookele contends that the twenty-year sentence constitutes cruel and unusual punishment. The State responds that Texas Rule of Appellate Procedure 25.2(a)(2) bars Ka-hookele from raising this issue, that the trial court’s certification that Kahookele has the right of appeal is defective, and that the appeal must be dismissed.

Rule 25.2(a)(2) provides, in part:

In a plea bargain case — that is, a case in which defendant’s plea is guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant — a defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled on before trial, or
(B) after getting the trial court’s permission to appeal.

Tex.R.App. P. 25.2(a)(2). The rule also requires the trial court to “enter a certification of the defendant’s right of appeal in every case in which it enters a judgment of guilt or other appealable order.” Id. The certification should be part of the record when notice of appeal is filed. Tex.R.App. P. 25.2(d). The court of criminal appeals has promulgated a form to be used for certifying the defendant’s right of appeal. Tex.R.App. P. appendix.

In the cause before us, the trial court certified that this is not a plea bargain case and Kahookele has the right of appeal. The State urges that the certification is defective, that this is a plea bargain case, and that Kahookele has no right of appeal.

If a defendant plea bargains for ordinary probation or deferred adjudication, the defendant’s right to appeal the conviction or order deferring adjudication, that is, the right of appeal following the original plea proceeding, is obviously limited by rule 25.2(a)(2), and the court of criminal appeals has so held. Feagin v. State, 967 S.W.2d 417, 419 (Tex.Crim.App. 1998) (applying predecessor rule). The court also held in Feagin that what is now rule 25.2(a)(2) does not apply to an appeal from an order revoking probation. Id. Thus, even if a defendant plea bargains for ordinary probation, an appeal from an order revoking that probation is not a plea bargain case.

The issue is not so clear when a defendant bargains for deferred adjudication and then seeks to appeal following an adjudication of guilt. In Watson v. State, the court held that such an appeal was a plea bargain case — that is, the limitation on the right of appeal arising from the initial plea bargain carries over to the appeal following adjudication — because “the trial judge does not exceed [the original punishment] recommendation if, upon proceeding to adjudication of guilt, he later assesses any punishment within the range allowed by law.” 924 S.W.2d 711, 714 (Tex.Crim.App. 1996) (applying predecessor rule). But in a later opinion, the court concluded that the Watson holding had been “narrowed” by two subsequent opinions. Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App. 2001). These two opinions were Feagin, 967 S.W.2d at 419, which held that an appeal from an ordinary probation revocation is not a plea bargain case, and Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App.1999), which held that a defendant appealing from an adjudication of guilt was not entitled to raise issues relating to his original plea proceeding. The Vidauni court explained:

Watson broadly held that when a defendant pleads guilty or nolo contendere and is sentenced in accordance with a plea bargain agreement, appeal from his subsequent adjudication of guilt is subject to the restrictions of [present rule 25.2(a)(2) ].... Watson did not contemplate that there might be a difference in the nature of the issues appealed after adjudication of guilt. Feagin distinguished between appeals of issues relating to the conviction and appeals regarding issues separate from the conviction, holding that only the former are limited by [present rule 25.2(a)(2) ].
Read in conjunction, Feagin and Manuel define more narrowly than Watson the issues on which and the circumstances in which a defendant may appeal in the context of deferred adjudication and the subsequent adjudication of guilt. Watson is disavowed to the extent it conflicts with these later cases. We note, however, that Watson still stands for the proposition ... that “when a prosecutor recommends deferred adjudication in exchange for a defendant’s plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law.”
In the case before us, appellant attempted to appeal a claim that he was denied a separate punishment hearing after the trial judge adjudicated him guilty.... [AJppellant’s claim that he was deprived of a separate punishment hearing does not challenge his conviction, it challenges the process by which he was sentenced, an issue “unrelated to [his] conviction.” Feagin, 967 S.W.2d at 419. Therefore, the Rule 25.2(b)(3) limitations do not apply to appellant’s claim and the Court of Appeals erred in finding that it lacked jurisdiction to consider appellant’s claim.

49 S.W.3d at 884-85 (quoting Watson, 924 S.W.2d at 714) (citations omitted) (applying predecessor rule); and see Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex.Crim.App. 2001) (claim of ineffective assistance of counsel at punishment hearing following adjudication of guilt was unrelated to conviction).

More recently, the court of criminal appeals held that rule 25.2(b)(3), the immediate predecessor to present rule 25.2(a)(2), “controls an appeal, made either before or after an adjudication of guilt, by a defendant placed on deferred adjudication who challenges an issue relating to his conviction.” Woods v. State, 68 S.W.3d 667, 669 (Tex.Crim.App.2002) (citing Watson and Vidaurri). Because Woods raised an issue related to her conviction and she did not have the trial court’s permission to appeal, the court concluded that the appeal was a plea bargain case and the court of appeals did not have jurisdiction. Id. at 670.

Under Vidaurri and Woods, a defendant who bargains for deferred adjudication and is later adjudicated guilty following a hearing on the State’s motion has a conditional right of appeal. That is, the defendant may not appeal issues related to the conviction (except with the trial court’s permission) but may appeal issues unrelated to the conviction. This complicates the trial court’s task of certifying the defendant’s right of appeal. The purpose of the certification requirement is to identify ap-pealable and non-appealable cases at an early stage. Greenwell v. Court of Appeals, 159 S.W.3d 645, 649, 2005 Tex.Crim. App. LEXIS 217, at *7 (Tex.Crim.App. 2005); Dears v. State, 154 S.W.3d 610, 615 (Keller, P.J., dissenting). To this end, the trial court must certify the right of appeal at the time sentence is imposed and no later than the time notice of appeal is given. Tex.R.App. P. 25.2(a)(2), (d). But in appeals governed by Vidaurri and Woods, the trial court cannot know whether the defendant .will raise an issue related or unrelated to the conviction until the defendant’s brief is filed. Moreover, the certification form promulgated by the court of criminal appeals tracks the express language of rule 25.2(a)(2) and does not provide for a right of appeal conditioned on whether the defendant raises an issue related or unrelated to the conviction. See supra note 4; and see Carroll v. State, 119 S.W.3d 838, 840 (Tex.App.-San Antonio 2003, no pet.) (choices on prescribed certification form do not apply to defendant who after adjudication challenges issue unrelated to conviction).

At the time it was required to certify Kahookele’s right of appeal, the trial court could not accurately certify that this was a plea bargain case and that he had no right of appeal because Kahookele had the right to appeal issues unrelated to his conviction. Under the circumstances, the court did not err by choosing the option that preserved Kahookele’s right of appeal.

The question remains, however, whether Kahookele’s contention that his sentence is cruel and unusual is an issue relating to his conviction, and thus is outside the scope of his right of appeal under Vidaurri and Woods. We conclude that it is. The sentence is a part of the judgment of conviction. Tex.Code Crim. Proc. Ann. art. 42.02 (West Supp.2004r-05). As the court of criminal appeals has repeatedly held, the trial court did not exceed the prosecutor’s plea bargained recommendation of deferred adjudication when, after proceeding to an adjudication of guilt, it imposed a punishment within the range allowed by law. Woods, 68 S.W.3d at 669; Vidaurri, 49 S.W.3d at 885; Watson, 924 S.W.2d at 714. We therefore conclude that Kahookele, who does not have the trial court’s permission to appeal, raises an issue relating to his conviction over which this Court does not have jurisdiction.

The State’s motion to dismiss the appeal is granted.

      . Amendments to section 71.02 since the crime was committed are immaterial to this cause, and we cite the current statute for convenience.

      . The offense was a second-degree felony at the time it was committed. See Tex. Pen. Code Ann. § 71.02(c) (West Supp.2004-05); Penal Code, 63d Leg., R.S., ch. 399, § 1, sec. 30.02(c), 1973 Tex. Gen. Laws 883, 927 (since amended) (current version at Tex. Pen.Code Ann. § 30.02(c)(1)); Act of May 23, 1991, 72d Leg., R.S., ch. 565, § 1, 1991 Tex. Gen. Laws 2003, 2003 (since amended) (current version at Tex. Pen.Code Ann. § 31.03(e)(5)).

      . The certification requirement applies to plea bargain cases, but is not limited to plea bargain cases.

      . The certification form can be found in the notes and comments following rule 25.2. Tex.R.App. P. 25.2 (West 2003). The form requires the trial court to certify that the case (1) "is not a plea-bargain case, and the defendant has the right of appeal,” or (2) "is a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal,” or (3) "is a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal,” or (4) "is a plea-bargain case, and the defendant has NO right of appeal,” or (5) “the defendant has waived the right of appeal.”

      . The roots of rule 25.2(a)(2) go back to 1977. In that year, the legislature added a proviso to Texas Code of Criminal Procedure article 44.02, which broadly grants criminal defendants the right of appeal, under which a defendant who pleaded guilty or no contest and whose punishment was assessed in accordance with a plea bargain agreement had to have the trial court’s permission to appeal except as to those matters raised by written motion filed prior to trial. Act of May 23, 1977, 65th Leg., R.S., ch. 351, § 1, 1977 Tex. Gen. Laws 940, 940-41 (Tex.Code Crim. Proc. Ann. art. 44.02 (West 1979), proviso since repealed). With the adoption of the Texas Rules of Appellate Procedure on September 1, 1986, the article 44.02 proviso was repealed and the limitation on the right of appeal in plea bargain cases was incorporated into appellate rule 40(b)(1). Tex.R.App. P. 40(b)(1) (1986). Rule 40(b)(1) added the requirement that a plea bargaining defendant state in his notice of appeal that the trial court granted permission to appeal or that he intended to appeal matters raised by written motion and ruled on before trial. Id. Rule 40(b)(1) became rule 25.2(b)(3) as part of the general revision of the appellate rules effective September 1, 1997. Tex.R.App. P. 25.2(b)(3) (1997). On January 1, 2003, rule 25.2 was revised into its present form, dropping the notice requirement and adopting the certification requirement. Our interpretation of the current rule is informed by the opinions applying the predecessor rules. See Woods v. State, 68 S.W.3d 667, 669 n. 6 (Tex.Crim.App. 2002).

      .Sentence was imposed on July 14, 2004, Kahookele’s notice of appeal was filed on August 10, and the trial court certified Ka-hookele’s right of appeal on August 26. Ka-hookele’s brief was filed on December 30. The State filed its brief on April 1, 2005, followed by its motion to dismiss on April 7.

      . We agree with the State that it would be pointless at this stage of the appeal to order the trial court to file a new certification based on the issue actually raised in Kahookele's brief.

      . Kahookele’s motion for immediate submission and to strike the State's brief is dismissed.


author: Opinion by Justice WRIGHT.

text:
    A.J.’S WRECKER SERVICE OF DALLAS, INC., Appellant, v. Cinthia SALAZAR, Appellee.
    No. 05-03-01801-CV.
    Court of Appeals of Texas, Dallas.
    June 8, 2005.

      James C. Mosser, Byron Kevin Henry, Dallas, for Appellant.
    Joe Lopez, James, Goldman & Haufland, P.C., El Paso, Jamie Travis Wall, Austin, for Appellee.
    Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
   OPINION

Opinion by Justice WRIGHT.

AJ.’s Wrecker Service of Dallas, Inc. (AJ’s) appeals a judgment in favor of Cint-hia Salazar following a jury trial. AJ’s contends, in five points of error, the trial court erred in rendering judgment for Salazar because: (1) her claims are preempted by federal law; (2) the evidence is legally and factually sufficient to support the civil theft claim; (3) mental anguish damages are not recoverable; (4) the evidence is legally and factually insufficient to support the award of mental anguish damages; and (5) AJ’s should have been awarded its attorney’s fees as the prevailing party on the civil theft claim. We sustain AJ’s first point of error and hold that Salazar’s claims are preempted by federal law. Because the trial court lacked jurisdiction over Salazar’s claims, we set aside the trial court’s judgment as void and dismiss this appeal.

Background

On July 8, 1999, Salazar was driving home from a doctor’s appointment. She saw an elderly woman carrying groceries and offered to drive the woman home. When they got to the woman’s apartment, Salazar parked her car, with the handicap placard properly displayed. Although Salazar did not park her car in a fire lane, it was not parked in a marked parking space; Salazar helped the woman carry her groceries into her apartment. Approximately twenty minutes later, Salazar left the apartment and discovered her car was gone.

AJ’s notified Salazar by mail that it had possession of her car. After several failed attempts to retrieve her car, Salazar went to court. The justice of the peace conducted a hearing and determined that AJ’s did not have probable cause to remove Salazar’s car. AJ’s defied two court orders. Finally, with the intervention and presence of a Dallas County Constable, Salazar obtained her car from AJ’s. AJ’s had possession of Salazar’s car for approximately sixty days.

Salazar filed suit alleging causes of action for violations of the transportation code and city ordinances, negligence per se, promissory estoppel, negligent hiring, waiver, abuse of process, equitable estop-pel, conversion, civil theft, and trespass to chattel. AJ’s filed a plea to the jurisdiction and motion for summary judgment alleging that Salazar’s claims were preempted by federal law and that there was no evidence to support her claims. The trial court granted AJ’s motions with respect to all but three of Salazar’s claims: (1) civil theft; (2) conversion; and (3) trespass to chattel. The case proceeded to trial on the three remaining claims and a jury returned a verdict in favor of Salazar. The trial court entered judgment on the jury’s verdict and this appeal timely followed.

Federal Preemption

In its first point of error, AJ’s asserts the trial court erred in entering judgment for Salazar because her claims are preempted by section 14501 of the Interstate Commerce Commission Termination Act of 1995 (ICCTA). See 49 U.S.C. § 14501. AJ’s further contends that Salazar’s claims do not fall within the safety exception to preemption.

Under the Supremacy Clause, if a state law conflicts with a federal law,' the state law is preempted and without effect. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). When reviewing a federal preemption issue, we “start with the assumption that the historic police powers of the States [are] not to be superseded by ... [a] Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947).

Federal law prohibits states from enacting or enforcing any law that relates to price, route, or service of motor carriers. 49 U.S.C.A. § 14501(c). This provision is modeled after the preemption provision contained in the Airline Deregulation Act. See 49 U.S.C.A. § 41713(b)(1). Cases construing the ADA preemption provision are, therefore, instructive.

With respect to motor carriers, section 14501 provides, in pertinent part, as follows:

(c) Motor carriers of property.—
(1) General rule. — Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
(2) Matters not covered. — Paragraph (D-
(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization;
(B) does not apply to the transportation of household goods; and
(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.

49 U.S.C. § 14501. This Court has previously addressed preemption with regard to noneonsensual tows. See Whitten v. Vehicle Removal Corp., 56 S.W.3d 293 (Tex. App.-Dallas 2001, pet. denied). The plaintiff in Whitten alleged the tow company violated provisions of the transportation code regulating the towing industry. Id. at 297. This Court held Whitten’s claims were preempted. Id. at 302. Unlike Whitten, however, Salazar’s claims do not involve regulations specific to motor carriers.

In analyzing a preemption claim, we must determine: (1) whether the claim constitutes the enactment or enforcement of a state law related to a motor carrier’s prices, routes, or services; and (2) if so, whether an exception to preemption applies. We ten first to determining whether Salazar’s causes of action constitute enforcement of a state law related to AJ’s services. Salazar alleged AJ’s wrongfully towed her car and, in doing so, violated the civil theft statute and committed the torts of conversion and trespass to chattel. Salazar contends “related to the services” of a motor carrier should be interpreted to mean related to a towing company’s proper, not wrongful, services. We disagree with Salazar’s narrow interpretation.

Generally, breach of contract actions are not preempted because the parties are enforcing their own agreement and, thus, the State is not enacting or enforcing a law. See American Airlines v. Wolens, 513 U.S. 219, 229, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). However, state torts can constitute enforcement of a state law within the meaning of ADA. See Delta Air Lines, Inc. v. Black, 116 S.W.3d 745, 756 (Tex.2003). “A state’s common law cannot operate against an airline in this context when it would constitute state enforcement of a law relating to airline services.” Id. at 757.

Salazar cites several cases to support her position that her tort claims are not preempted. These cases are distinguishable. One case involved an allegation that an airline conspired with a parent to smuggle a child out of the country in violation of a court order. Pittman v. Grayson, 869 F.Supp. 1065 (S.D.N.Y.1994). The plaintiffs alleged claims for false imprisonment, intentional infliction of emotional distress, and intentional interference with a custodL al relationship. Id. at 1067. The court held that these torts were not preempted under the ADA. Id. at 1074. In another case, the airline summoned the police to remove a passenger from a plane who refused to give up her seat., Peterson v. Continental Airlines, Inc., 970 F.Supp. 246, 248 (S.D.N.Y.1997). The passenger says the airline employees summoned the police out of spite and malice toward her. The passenger sued alleging causes of action for negligence, assault and battery, false arrest, false imprisonment, abuse of process, civil rights violations, and defamation. Id. at 248. The court held the plaintiffs tort claims were not preempted because they were based on allegations of outrageous conduct of the airline’s employees. Id. at 249-50. In another case, a passenger was removed from an airplane and arrested for assault following her attempt to reboard her flight. Chrissafis v. Continental Airlines, Inc., 940 F.Supp. 1292, 1294 (N.D.Ill.1996). She sued for false arrest and false imprisonment. The court held the ADA did not preempt the passenger’s claims because the allegedly false accusations by the employees did not constitute airline services. Id. at 1299. Salazar’s claims, by contrast, differ from those in the above eases in two important respects. First, her claims do not involve conduct directed at her personally. Second, her claims arise directly from AJ’s service of towing cars.

A fifth circuit opinion is more on point with the facts of this case. See O’Carroll v. American Airlines, Inc., 863 F.2d 11, 12 (5th Cir.1989). In O’Carroll, the plaintiff brought various state law claims against an air carrier stemming from his allegedly wrongful exclusion from a flight. O’Carroll, 863 F.2d at 12. When the airline noticed an irregularity in the plaintiffs ticket, a flight attendant asked him to deplane and talk to the gate agent about the problem. O’Carroll, 863 F.2d at 12. The plaintiff, who was intoxicated, uttered obscenities and refused to move. Id. The flight captain summoned the police, who removed the plaintiff from the plane. Id. Vacating a $260,273.23 damage award, the Fifth Circuit held that the plaintiffs common law claims were preempted. Id. at 12-13. A later Fifth Circuit opinion, holding that a passenger’s negligence claim for injuries sustained when bottles of rum fell on her from an overhead compartment were not preempted, distinguished O’Carroll as involving “state law claims arising from ... alleged wrongful exclusion [that] undeniably related only to the services provided by the airline.” Hodges v. Delta Airlines, Inc., 44 F.3d 334, 339 (5th Cir.1995). Like the plaintiffs claim in O’Car roll based on his alleged wrongful exclusion from a flight, Salazar’s claims based on her car being wrongfully towed are undeniably related to the services provided by AJ’s.

Unlike a negligence action which the supreme court in Kiefer termed “policy-neutral,” trespass to chattel, conversion, and civil theft have elements closely related to AJ’s nonconsensual towing service. Towing cars without the owners consent is one of the sendees AJ’s provides. Moreover, the regulatory impact of these causes of action could be significant. If these claims are allowed to proceed, AJ’s conceivably could be hauled into court to defend its actions every time it tows a car without the owner’s consent. This constitutes regulation of motor carriers through enforcement of state laws. Allowing these causes of action to proceed against motor carriers has the potential to frustrate the purpose of the preemption statute — economic deregulation. We conclude Salazar’s claims are preempted because they constitute enforcement of state law related to the towing service provided by AJ’s.

Safety Exception

Having determined that Salazar’s claims are directly related to the towing services provided by AJ’s, we must now determine whether those claims are exempted from preemption.

The preemption provision “shall not restrict the safety regulatory authority of a State with respect to motor vehicles ...” 49 U.S.C. § 14501(c)(2)(A). Salazar contends her causes of action provide public safety for citizens of Texas. She argues that nonconsensual tows create safety concerns because people are left stranded. AJ’s counters that, in accordance with Whitten, Salazar’s causes of action do not fall within the safety exception. See Whitten, 56 S.W.3d at 306.

In Whitten, the plaintiffs car was towed from his apartment complex while he was out of town. He claimed that the towing company violated various provisions of the transportation code which regulate certain towing practices. Id. at 297. This Court held that Whitten’s statutory claim was preempted. Id. at 304. Whitten also asserted that his claim fell within the safety exception. This Court disagreed. We noted that the preemption provision applies to “motor carriers” and the safety exception applies to “motor vehicles.” The preemption provision is in chapter 145, entitled “Federal-State Relations.” This Court, however, looked at the definition of “motor vehicle safety” contained in chapter 301, entitled “Motor Vehicle Safety.” See 49 U.S.C.A. § 30102(a)(8). This Court relied on the following definition of “motor vehicle safety:”

The performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident, and includes nonoperational safety of a motor vehicle.

49 U.S.C.A.30102(a)(8). This Court held that the safety exception is limited to allowing regulation of mechanical components of motor vehicles. Id. at 306. We concluded in Whitten that the safety exception is not a “general exception for safety-related regulation concerning motor carriers.” Id. at 305.

Subsequent to this Court’s opinion in Whitten, the United States Supreme Court addressed the meaning of the safety exception. See Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002). In Ours Garage, the Supreme Court faced the issue of whether a city could enforce its own towing ordinance where the preemption provision applies to a “State or political subdivision of a State” and the safety exception to preemption refers only to the authority of a “State.” The Court held that a State may delegate to municipalities and other local units the State’s authority to establish safety regulations governing motor carriers of property, including tow trucks. Thus, whereas we held in Whitten that the safety exception applies only to motor vehicles and not motor carriers, the U.S. Supreme Court has held that not only States, but also, local authorities may enact safety regulations governing motor carriers. See Ours Garage, 536 U.S. at 442, 122 S.Ct. 2226.

Addressing the parameters of the safety exception, the Supreme Court stated:

Congress’ clear purpose in § 14501(c)(2)(A) is to ensure that its preemption of States’ economic authority over motor carriers of property, § 14501(c)(1), “not restrict” the preexisting and traditional state police power over safety.
A congressional decision to enact both a general policy that furthers a particular goal and a specific exception that might tend against that goal does not invariably call for the narrowest possible construction of the exception. Such a construction is surely resistible here, for § 14501(e)(l)’s preemption rule and § 14501(c)(2)(A)’s safety exception do not necessarily conflict. The problem to which the congressional conferees attended was “state economic regulation”; the exemption in question is for state safety regulation.

Ours Garage, 536 U.S. at 440-41,122 S.Ct. 2226. In light of the Supreme Court’s holding in Ours Garage, we conclude this Court’s narrow reading of the safety exception in Whitten is not controlling.

Nevertheless, we conclude the safety exception does not apply to Salazar’s causes of action. The safety exception applies only to specific legislation directed at motor carriers. See Cole v. City of Dallas, 314 F.3d 730, 735 (5th Cir.2002) (municipal regulation prohibiting person with criminal conviction from obtaining a permit to operate a tow truck); Galactic Towing, Inc. v. City of Miami Beach, 341 F.3d 1249,1251-52 (11th Cir.2003) (city’s nonconsensual towing ordinance requiring permit, written authorization for tow, storage within city limits within safety exception); Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 774-75 (2nd Cir.1999) (ordinance requiring licensing and disclosure of criminal history within safety exception). Salazar attempts to apply the safety exception to general causes of action as opposed to legislation directed at the towing industry. We conclude the safety exception is inapplicable to Salazar’s claims.

We sustain AJ’s first point of error. Because Salazar’s claims are preempted by federal law, the trial court was without jurisdiction to render judgment. We set aside the trial court’s judgment as void and dismiss this appeal.

      . The supreme court has held that a negligence action for personal injuries against an airline is not preempted. Continental Airlines, Inc. v. Kiefer 920 S.W.2d 274, 281-82 (Tex. 1996). In Kiefer, the passenger claimed the airline’s negligence caused her injury when a briefcase fell from an overhead bin and struck her. Id. at 275. The court reasoned that a negligence claim was more akin to a policy-neutral breach of contract action with little potential for an intrusive regulatory effect. Id. at 282. The court cautioned, however, that a negligence action may be preempted if the plaintiff seeks punitive and/or mental anguish damages. Id.


author: Justice LANG.

text:
    C & G, INC. d/b/a Fox Rental, Appellant, v. C.N. JONES and Leonard Duncan, Appellees.
    No. 05-04-00683-CV.
    Court of Appeals of Texas, Dallas.
    June 15, 2005.

      Michael Scott Macquaid, Harrison Steck Hoover & Drake, P.C., Fort Worth, for Appellant.
    Robert Huckabee, Rockwall, for Appel-lee.
    Before Justices WRIGHT, MOSELEY, and LANG.
   OPINION

Opinion by

Justice LANG.

C & G, Inc. d/b/a Fox Rental appeals the trial court’s “take nothing” judgment in favor of C.N. Jones and Leonard Duncan. Fox Rental sued Jones and Duncan for misapplication of construction trust funds pursuant to section 162.031(a) of the property code. See Tex. Prop.Code Ann. § 162.031(a) (Vernon 1995). In a single issue, Fox Rental contends the trial court erred in failing to find Jones and Duncan personally liable for the trust funds. Because we conclude that the trial court improperly applied the law to the stipulated facts, we resolve this issue in Fox Rental’s favor. We reverse the trial court’s final judgment on Fox Rental’s claims against Jones and Duncan and render judgment that Jones and Duncan are jointly and severally liable to Fox Rental for $27,556.71. In all other respects, the trial court’s final judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties’ dispute was presented to the trial court on an “Agreed Statement of Facts.” According to the agreed facts, between January 30, 1999 and April 13, 2000, Fox Rental contracted with CCG to supply construction equipment for projects on which CCG was a contractor. CCG was wholly owned by American Eco Corporation, whose principal offices were in Houston. Jones and Duncan were principal officers of CCG and had offices in Dallas. Fox Rental delivered its invoices to CCG at its principal offices in Dallas. CCG received payments from the construction projects’ owners at its lock box in Houston and persons other than Jones and Duncan deposited them into CCG’s checking account. Pursuant to chapter 162, these payments were trust funds, and Fox Rental was a beneficiary of these trust funds. CCG retained, used, or disbursed these payments without paying $27,556.71 which was owed to Fox Rental. At the time of trial, CCG was in bankruptcy.

Jones and Duncan had signatory authority on CCG’s checking account. Neither of them personally received any trust funds, nor did they “independently” determine to whom the trust funds should be paid. Jones and Duncan disbursed such funds “in accordance with the instructions received from the officers of American Eco” in Houston. Jones and Duncan objected to the capture, use, and direction of such funds by American Eco and its officers. In April 2000, Jones and Duncan were asked by American Eco officers to leave their employment with CCG, “in large part” because of their objections to the manner in which funds were being handled by American Eco and its officers.

The trial court found in favor of Jones and Duncan and entered a take nothing judgment against Fox Rental. This appeal timely followed.

II. STANDARD OF REVIEW

Rule of civil procedure 263 provides for presentation of a case to the trial court on stipulated facts. See Tex.R. Civ. P. 263. As explained by the Fort Worth Court of Appeals in State Farm Lloyds v. Kessler, 932 S.W.2d 732 (Tex.App.-Fort Worth 1996, writ denied), we review the trial court's judgment de novo:

An agreed statement of facts under rule 263 is similar to a special verdict; it is the parties’ request for judgment under the applicable law. The only issue on appeal is whether the trial court properly applied the law to the agreed facts. The appellate court is limited to those facts unless other facts are necessarily implied from the express facts in the statement. In an appeal of an “agreed” case, there are no presumed findings in favor of the judgment, and the pleadings are immaterial.
Because the issue on appeal is a pure question of law, the appellate court performs a de novo review. A de novo review is less deferential than ordinary reviews because a trial court has no discretion in deciding what the law is or in properly applying it.

Id. at 735 (citations and footnotes omitted); see Walker Eng’g, Inc. v. Bracebridge Corp., 102 S.W.3d 837, 839 (Tex.App.-Dallas 2003, pet. denied).

III. APPLICABLE LAW

“A contractor, subcontractor, or owner or an officer, director, or agent of a contractor, subcontractor, or owner, who receives trust funds or who has control or direction of trust funds, is a trustee of the trust funds.” Tex. Prop.Code Ann. § 162.002 (Vernon 1995). A trustee who, intentionally or knowingly or with intent to defraud, directly or indirectly retains, uses, disburses, or otherwise diverts trust funds without first fully paying all current or past due obligations incurred by the trustee to the beneficiaries of the trust funds, has misapplied the trust funds. Id. § 162.031(a).

Thus, a party who misapplies these trust funds is subject to civil liability if (1) the party breaches the duty imposed by chapter 162, (2) with the requisite scienter, and (3) the claimants are within the class of people chapter 162 was designed to protect and have asserted the type of injury chapter 162 was intended to prohibit. See Lively v. Carpet Sews., Inc., 904 S.W.2d 868, 873 (Tex.App.-Houston [1st Dist.] 1995, writ denied). Any officer or director who has control or direction over the funds is also a trustee of the funds and is, therefore, personally liable. Id. However, there must be some evidence that the officer or director had control or direction over the trust funds, such as possessing and exercising the power to divert the trust funds by sending the funds wherever they choose and actually controlling the disposition of the funds. See Nuclear Corp. of Am. v. Hale, 355 F.Supp. 193, 197-98 (N.D.Tex.), aff'd, 479 F.2d 1045 (5th Cir.1973) (per curiam).

Chapter 162 was enacted to give protection to materialmen in addition to that provided by the materialman’s hens statutes. McCoy v. Nelson Utils. Sens., Inc., 736 S.W.2d 160, 164 (Tex.App.-Tyler 1987, writ ref'd n.r.e.). Because chapter 162 is a remedial statute, courts must give it a broad construction to effectuate its protective purposes. Vulcan Materials Co. v. Jack Raus, Inc. (In re HLW Enters, of Texas, Inc.), 157 B.R. 592, 597 (Bankr.W.D.Tex.1993). “[T]he purpose of the statute is best served when the statute is read in accordance with its common sense meaning.” Id.

IV. DISCUSSION

The issue before the trial court was whether Jones, Duncan, or both, were liable for misapplying any portion of the trust funds under section 162.031(a). Fox Rental argues that the following stipulated facts conclusively establish that Jones and Duncan were trustees pursuant to section 162.002:(1) Jones was an officer of CCG, specifically, the president, and a director of CCG; (2) Duncan was an officer, specifically, the vice-president and chief financial officer, and a director of CCG; (3) they had control over the trust funds because they had signatory authority on the checking account into which the trust funds were deposited; and (4) they had the ability to direct the trust funds because they disbursed the funds. Additionally, Fox Rental argues that, pursuant to section 162.031(a), it is conclusively established that both Jones and Duncan misapplied the trust funds based on these stipulated facts: (1) CCG misapplied trust funds of which Fox Rental was the beneficiary; and (2) Jones and Duncan disbursed the trust funds.

Nevertheless, Jones and Duncan argue that the following facts stipulated conclusively establish that they were not trustees:

(1) CCG was wholly owned by American Eco Corporation.
(2) Neither Jones nor Duncan personally received any of the trust funds, nor did they independently determine to whom the trust funds should be paid. Jones and Duncan disbursed such funds in accordance with the instructions received from the officers of American Eco in Houston, Texas.
(3) Jones and Duncan objected to the capture, use, and direction of such funds by American Eco and its officers. In April 2000, Jones and Duncan were asked by American Eco officers to leave their employment with CCG, in large part because of their objections to the manner in which funds were being handled by American Eco and its officers.

(Emphasis added.)

In their brief, Jones and Duncan state, “[I]t was neither Jones nor Duncan that received the funds, decided how to disburse them, or controlled or directed their use.” According to Jones and Duncan, chapter 162 and the case authorities “clearly seek to hold accountable those who actually perform the acts which it prohibits. Jones and Duncan were not those persons.” Further, “The receipt of all funds and the decisions regarding disbursement of those funds were controlled by American Eco and its officers, the parent company of CCG.”

The case law is sparse respecting the meaning of “control or direction of trust funds” in section 162.002. Fox Rental relies on Liveley and McCoy. However, those cases are distinguishable. In Lively, the person against which personal liability was claimed under chapter 162 was the sole shareholder, officer, and director of the general contractor which did not pay the subcontractor. Lively, 904 S.W.2d at 870. In McCoy, there was evidence that the two persons pursued for personal liability both had control and direction of the trust funds. Specifically, the two individuals were co-owners of the general contractor, and both had control of funds within the company, signed checks for the company, and directed to whom the check should be made payable. McCoy, 736 S.W.2d at 165. Thus, in both these cases, there was unassailed evidence that the individual defendants had complete control of the fimds, yet they failed to pay the complaining materialman.

In Hale, the district court considered whether there was an exercise of “control” of trust funds by coi’porate officers under the predecessor statute of section 162.031(a). In its opinion, the district court made a distinction among three corporate officers, all of whom had the power to control or direct funds, but only two of whom actually “exercised” those powers. The president and general manager of the company and a director, who was also secretary-treasurer, took “active” parts in the daily management of the company. Hale, 355 F.Supp. at 195. Most of the company’s checks were signed by these two individuals. Id. Another individual, who was the vice-president and a director, took a “passive” role in the company’s operations, and, unlike the others, he made no managerial decisions. Id. Specifically, this individual never “participated in any decision to favor certain creditors over others as to the manner in which the creditors would be paid from the available funds.” Id. The court concluded that “though he may have had the power as a director and vice-president to control or direct the use of these funds, there is no evidence that this power was ever exercised when it came to disbursement of [trust] funds.” Id. at 197-98. Thus, the key to determining “control or direction” was whether those who could exercise power did so, i.e., whether they actually diverted trust funds and failed to pay the materialman entitled to the funds. The district court concluded that those who exercised the power to direct the funds were liable, and the individual who did not exercise the power was not hable.

Applying these authorities to the facts in this case, we conclude that the stipulated facts do not allow us to make the distinctions made by the district court in Hale. Even though the stipulated facts state that Jones and Duncan did not “independently” determine to whom the funds should be paid, the word “independently” does not exclude the participation of Jones and Duncan in the decision to divert funds. Further, the stipulation that Jones and Duncan made the payments “in accordance with the instructions” of the parent company officers does not exclude Jones or Duncan from the “decision” to divert the funds. Finally, being asked to leave CCG “in large part” because of objections made respecting the handling of trust funds does not address the control or direction of the funds. This fact may address intent to defraud in exercising the diversion of funds, but “intent” to defraud is not determinative of personal liability. See id. at 197 (applying predecessor statute and noting materialman “need not make a showing of fraud or intent to defraud to recover” when materialman has “a civil remedy for breach of trust for any misapplication of funds” owing to it); see also Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 373 (Tex. 2005) (holding “knowingly” as used in the water code “requires proof of knowledge of the facts”) (citation omitted). The facts show that Jones and Duncan participated in both the decision by CCG and American Eco to divert the funds and the actual diversion of the funds. On this record, we cannot conclude that Jones and Duncan had no control over the trust funds or that they exercised no such power in the disbursement of the trust funds.

Based on this record, we conclude that the trial court improperly applied the law to the facts. Jones and Duncan are “officers” of CCG who had “control or direction” of trust funds, pursuant to section 162.002, and “directly or indirectly” used, disbursed, or otherwise diverted the trust funds at issue, pursuant to section 162.031(a). Accordingly, they are personally liable, jointly and severally, to Fox Rental for the stipulated amount of $27,556.71. See Hale, 355 F.Supp. at 199 (individuals found personally liable and who were acting together were adjudged jointly and severally liable); McCoy, 736 S.W.2d at 165-66 (same). We resolve Fox Rental’s single issue in its favor.

V. CONCLUSION

We reverse the trial court’s final judgment on Fox Rental’s claims against Jones and Duncan and render judgment that Jones and Duncan are jointly and severally liable to Fox Rental for $27,556.71. Since the final judgment also disposed of other defendants not before us in this appeal and we do not address them,, those parts of the final judgment relating to them are affirmed. We note that Fox Rental raises no issue on appeal regarding any claim to pre- or postjudgment interest or attorney’s fees, nor were there any stipulated facts or evidence introduced as to interest or attorney’s fees.

      . Specifically, the final judgment provides that Fox Rental non-suited its claims against defendants Liz Watson and Michael C. Ap-pling, and those claims were dismissed without prejudice. In addition, the final judgment provides that Fox Rental had previously non-suited or dismissed its claims against defendants Specialty Management Group, Inc. d/b/a CCG, fik/a CCG Commercial Construction Group, Inc., National Union Fire Insurance Company of Pittsburgh, PA, Val Williams, and Michael E. McGinnis.