author: Justice LANG-MIERS.

text:
    THE TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND (Now The Travelers Indemnity Company of Connecticut), Appellant, v. Lynn Edward STARKEY and Hazel Dean Starkey, Appellees.
    No. 05-03-01531-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 17, 2005.
    Rehearing Overruled March 30, 2005.

      Deanne C. Ayers, Julie B. Tebbets, Col-leyville, for appellant.
    Roger G. Williams, Wilson Williams Molberg & Mitchell, PC, Kenneth H. Mol-berg, Wilson, Williams & Molberg, P.C., Dallas, for appellees.
    Before Justices O’NEILL, LANG and LANG-MIERS.
   OPINION

Opinion By

Justice LANG-MIERS.

The Travelers Indemnity Company of Rhode Island (Now The Travelers Indemnity Company of Connecticut) appeals the trial court’s judgment awarding death benefits to Lynn Edward Starkey and Hazel Dean Starkey under the now-repealed provisions of the Texas Workers’ Compensation Act article 8306 section 8. We affirm.

I. Factual and Procedural Background

On February 8, 1984, Jonathan Starkey sustained injuries in a motor vehicle accident while in the course and scope of his employment rendering him a quadriplegia. Travelers paid Jonathan 919 weeks of workers’ compensation indemnity benefits between the date of the injury and the date of his death seventeen years later on September 8, 2001. Jonathan also filed a third-party action against a party he alleged caused or contributed to his injuries. Travelers intervened in that action. The parties in the third-party action, including Travelers, reached a settlement, the terms of which are at issue in this appeal.

Following Jonathan’s death, his parents, Lynn and Hazel Starkey, sought death benefits under the now-repealed Texas Workers’ Compensation Act article 8306 section 8. The Texas Workers’ Compensation Commission denied their claim, and the Starkeys appealed to the district court. The primary issue in the district court was whether Travelers was entitled to deduct the 919 weeks already paid to Jonathan from the 360 weeks claimed by the Star-keys. If so, this credit would eliminate any recovery by the Starkeys. The parties waived a jury and submitted their issues to the trial court. At trial, the primary issue was the interpretation of one page of the third-party settlement agreement, which the parties stipulated as plaintiffs’ exhibit one. The Starkeys argued that Travelers waived any credit to which it may have been entitled under section 8b by signing this document; Travelers argued it did not. The trial court rendered judgment for the Starkeys against Travelers and entered findings of fact and conclusions of law, from which Travelers appeals.

II. The Issues

Travelers raises four issues with multiple subparts. Travelers initially argues the Starkeys’ cause of action never existed because Travelers paid Jonathan more than 360 weeks of benefits prior to his death which eliminated any claim the Star-keys had to death benefits. Travelers next challenges the sufficiency of the evidence to support the trial court’s judgment and findings of fact and conclusions of law because plaintiffs’ exhibit one, the contractual provision in dispute, was never admitted into evidence. Alternatively, Travelers argues the trial court erred in interpreting plaintiffs’ exhibit one as a waiver of the credit to which Travelers was entitled under section 8b. Travelers also argues the trial court erred in striking the verification of its supplemental answer denying Jonathan’s wage rate.

The Starkeys respond that plaintiffs’ exhibit one was admitted and that Travelers’ issues are not subject to review because there is an incomplete record on appeal. Alternatively, the Starkeys argue that Travelers contractually waived any right to credit under section 8b, the evidence is legally and factually sufficient to support the trial court’s findings, and the trial court did not err in striking Travelers’ verification.

III. Sufficiency of the Record

In its first three issues, Travelers challenges the sufficiency of the evidence to support the trial court’s judgment and findings of fact and conclusions of law because plaintiffs’ exhibit one — the sole evidence relied on by the trial court in rendering its findings of fact and conclusions of law — was never admitted into evidence. As a result, we must initially determine whether this exhibit was admitted and whether we have a complete record on appeal.

A. Was Plaintiffs’ Exhibit One Admitted?

The parties stipulated to plaintiffs’ exhibit one in open court on the record. A stipulation is “an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto.” Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.1998) (citing Ortega-Carter v. American Int’l Adjustment Co., 834 S.W.2d 439, 441-42 (Tex.App.-Dallas 1992, writ denied)). To be enforceable, the stipulation must be in writing, signed, and filed as part of the record, or made in open court and entered of record. Tex.R. Civ. P. 11. Stipulations are binding upon the parties, the trial court, and the reviewing court. See Jim Sowell Const. Co., Inc. v. Dallas Cent. Appraisal Dist., 900 S.W.2d 82, 84 (Tex.App.-Dallas 1995, writ denied); M.J.R.'s Fare of Dallas, Inc. v. Permit and License Appeal Bd., 823 S.W.2d 327, 330-31 (Tex.App.-Dallas 1991, writ denied).

Travelers argues the stipulation relieved the Starkeys of the obligation to authenticate plaintiffs’ exhibit one, but not to offer the exhibit into evidence. But many cases have held that evidence treated by the trial court and the parties as if it had been admitted is, for all practical purposes, admitted. See, e.g., Sanchez v. Bexar County Sheriffs Dep’t, 134 S.W.3d 202, 203-04 (Tex.2004) (per curiam) (commission record relied on as evidence by parties and court should be considered by appellate court even though not formally admitted into evidence); Texas Health Enters., Inc. v. Texas Dep’t of Human Servs., 949 S.W.2d 313, 314 (Tex.1997) (per curiam) (appellate court ordered to file administrative record that parties and court treated as admitted evidence although not formally tendered as evidence); Heberling v. State, 834 S.W.2d 350, 355-56 (Tex.Crim.App.1992) (exhibit placed before jury and referred to by witnesses sufficient to sustain verdict although not formally offered or admitted); Pickering v. First Greenville Nat’l Bank, 479 S.W.2d 76, 78 (Tex.Civ.App.-Dallas 1972, no writ) (exhibit that was marked, used and referred to by attorneys and considered by trial court in rendering its decision was in evidence); Texas Dep’t of Pub. Safety v. Latimer, 939 S.W.2d 240, 242-43 (Tex.App.-Austin 1997, no writ) (trial court considered administrative record in making decision, both parties treated it as evidence, both referred to the record’s contents, and no objection was made that administrative record had not been admitted).

The reporter’s record clearly shows that plaintiffs’ exhibit one was marked and that both parties treated the exhibit as if it had been admitted into evidence: attorneys for both parties referred to plaintiffs’ exhibit one during the trial, they agreed its interpretation was one of two issues for the trial court to decide, plaintiffs’ exhibit one was projected onto a screen for the benefit of the trial court, Travelers did not object to references to plaintiffs’ exhibit one on the basis it was not in evidence, the parties discussed tendering to the trial court the entire settlement agreement under seal, Travelers did not object to plaintiffs’ exhibit one in their objections to the proposed judgment or in their motion for new trial, and the trial court based its findings of fact and conclusions of law on this exhibit. We conclude that plaintiffs’ exhibit one was, for all practical purposes, admitted.

B. Standard of Review When Record is Incomplete

Plaintiffs’ exhibit one is not contained in the appellate record. Travelers did not attempt to supplement the record, did not argue that plaintiffs’ exhibit one has been lost or destroyed under Rule 34.6(f), and did not designate a partial reporter’s record under Rule 34.6(c). TexR.App. P. 34.6(f) and (c). Without plaintiffs’ exhibit one, we have an incomplete record. However, the trial court quoted language from plaintiffs’ exhibit one in its findings of fact. Although Travelers complains it is impossible to determine whether the language in the findings of fact is quoted correctly without the exhibit, when we are confronted with an incomplete record, we presume the evidence supports the trial court’s findings of fact. See Sandoval v. Commission for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex.App.-Houston [14th Dist.] 2000, writ denied) (because appellant did not file a complete record on appeal, the court presumes the omitted portions of the reporter’s record support the judgment); CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex.App.-Fort Worth 1999, no pet.); J.B. Chadwick v. Glens Falls Ins. Co., 340 S.W.2d 501, 503 (Tex.Civ.App.-Waco, 1960, no writ). Because we have an incomplete record, we overrule Travelers’ challenges to the sufficiency of the evidence to support the trial court’s findings of fact. We overrule Travelers’ second issue, subparts B and C, and its third issue, subpart A which deals with the trial court’s findings of fact.

IV. Challenge to the Existence of the Cause of Action

At trial, Travelers moved for directed verdict on the ground that the Star-keys’ cause of action for death benefits under section 8 never came into existence because Travelers paid more than 360 weeks in benefits to Jonathan prior to his death. Travelers relied on Gulf Casualty Company v. Hart, 141 Tex. 642, 175 S.W.2d 73 (1943), where the court held that “[t]he employee having lived beyond 360 weeks from the date of injury, the compensation period under Section 8 had expired before his death and no cause of action ever came into existence, or now exists, in favor of the beneficiary.” Id. at 645, 175 S.W.2d 73.

However, Hart is distinguishable. Unlike here, the parties in Hart did not dispute whether the workers’ compensation carrier waived the section 8b credit for payments made prior to the injured worker’s death. Jonathan Starkey was injured on February 8, 1984. The third-party settlement agreement was signed December 10, 1987, less than 360 weeks after the date of injury. We conclude the trial court did not abuse its discretion in denying Travelers’ motion for directed verdict. We overrule Travelers’ first issue, subpart B.

V. Challenge to the Trial Court’s Findings of Fact and Conclusions of Law

A, Does the Contract Waive the Section 8b Credit?

Travelers challenges the legal sufficiency of the trial court’s conclusion of law number two because plaintiffs’ exhibit one was never admitted into evidence. We may review the trial court’s conclusions of law de novo to determine their correctness. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Richardson Indep. School Dist. v. G.E. Capital Corp., 58 S.W.3d 290, 293 (Tex.App.-Dallas 2001, no pet.). Conclusion of law number two states:

2. As a result of the contractual language cited above, the defendant is not entitled to an offset to or credit against the award to the plaintiffs for any compensation benefits it previously paid to or on behalf of Jonathan Starkey. The contract language waives or otherwise relinquishes the right, if any, that the defendant may have had in the absence of its agreement.

This conclusion is based on finding of fact number six, which quotes language from plaintiffs’ exhibit one:

6. The third-party action was settled by and between the parties, including the defendant here. As a part of that agreement, and in return for consideration, including a cash payment, Travelers agreed as follows:
The above amounts paid to Travelers shall constitute full settlement, satisfaction, and accord of all claims, demands, rights and liens that Travelers has or may have, directly or derivatively, accrued or contingent, under Tex.Rev.Stat. Ann. art 8307(6a), or otherwise, against .... the Starkeys, or any of them, in any way arising out of the Accident, the Action, or this settlement of the Action. None of the payments described in the Agreement shall in any way reduce, satisfy, or eliminate any obligation that Travelers has or may have to pay any future benefits to or on behalf of Jonathan Glynn Starkey....

The parties do not claim this provision is ambiguous, and our primary duty is to ascertain the parties’ intent as expressed within the provision’s four corners. See Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.2002); Luckel v. White, 819 S.W.2d 459, 461 (Tex.1991). We give terms not defined specifically in the contract their plain, ordinary and generally accepted meaning. See De-Witt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.1999). Also, we presume the parties intended every clause to have some effect. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Ogden v. Dickinson State Bank, 662 S.W.2d 330, 331 (Tex.1983).

Travelers complains the trial court used parol evidence to interpret this provision as waiving the credit under section 8b but does not identify the portion of the record where the parol evidence is found. Travelers interprets this provision as waiving its right “to suspend Jonathan Starkey’s benefits until the total amount, if any, of money he received from the third party settlement was exhausted as set forth in Article 8S07, § 6a ” but not as waiving the credit or offset under section 8b. It contends that had the parties intended to waive the credit under section 8b, they would have made a specific reference to it, as they did with section 6a. Because they did not, “it is presumed that the parties considered and rejected including Article 8806, § 8b as part of the document.” We disagree.

This provision in the third-party settlement agreement waives Travelers’ rights under “art. 8307(6a), or otherwise, against - the Starkeys.” (emphasis added). “Otherwise” means “in a different way or manner” or “under different circumstances.” WEBSTER’S THIRD NEW INTERNATIONAL Dictionary 1598 (1981). This language does not limit the scope of the term “otherwise.” Accordingly, we interpret this provision to mean that Travelers waived its rights under article 8307 section 6a and any other statute or provision by which Travelers may have had a claim against the Starkeys. For this reason, the trial court did not err in reaching conclusion of law number two. We overrule Travelers’ second issue, subpart A.

B. Did the Trial Court Eir in its Award to the Starkeys?

In its third issue, Travelers argues the trial court erred in reaching conclusions of law numbers three, four and five in which the trial court awarded benefits, attorneys’ fees, interest and costs to the Starkeys because there is no evidence to support the findings of fact from which these conclusions were drawn. Travelers also argues that the issue of wage rate, upon which the benefits were calculated, was not before the trial court. We disagree. The parties stipulated that one of the two issues before the trial court was the average weekly wage applicable to the benefits sought by the Starkeys. For the reasons set forth under VI below, the evidence of weekly wage rate supports the trial court’s findings of fact numbers eight and nine in which the court determined that Jonathan’s average weekly wage produced a weekly compensation rate of $189. Conclusion of law number three is based on a mathematical calculation of the weekly benefits awarded to the Starkeys multiplied by the average weekly rate applicable to Jonathan. See Act approved March 28, 1917, 35th Leg., R.S., ch. 103 § 1 (repealed 1989). We conclude the trial court did not err in awarding benefits to the Starkeys.

In conclusions of law numbers four and five, the trial court awarded the Starkeys attorneys’ fees in the amount of twenty-five percent of the judgment, plus interests and costs “as allowed by law.” Article 8306 section 7d authorized the trial court to award attorneys’ fees up to twenty-five percent. It was not error, therefore, for the trial court to award attorneys’ fees to the Starkeys.

We also conclude it was not error for the trial court to award postjudgment interest and costs. Travelers cites no authority for its argument that the award of postjudgment interest and costs was error. The successful party in the trial court is entitled to postjudgment interest. See Tex. Fin.Code Ann. § 304.005 (Vernon Supp.2004-05), and lawsuit costs are awarded to the successful party against its adversary. Tex.R. Civ. P. 131. The trial court did not err by awarding post-judgment interest and costs to the Star-keys.

For these reasons, we overrule Travelers’ third issue, subpart A which deals with the trial court’s conclusions of law.

VI. Did the Trial Court Err in Striking Travelers’ Verification?

In its fourth issue, Travelers argues the trial court abused its discretion in striking Travelers’ verification to its supplemental answer in which it denied Jonathan’s wage rate. Texas Rule of Civil Procedure 93(13)(h) provides that in the appeal of a workers’ compensation case, wage rate is presumed true as pleaded unless denied by affidavit. Tex.R. Civ. P. 93(13)(h). Denials under rule 93(13)(a) or (g) may be based on information and belief, implying that other matters denied under rule 93(13) must be based on personal knowledge. Id. Travelers’ verification was signed by its adjuster, who testified that he relied on the employer’s first report of injury, provided by the employer, and the claim for death benefits, provided by the Starkeys, in preparing his affidavit wherein he denied Jonathan’s wage rate. Travelers argues its adjuster’s reliance on these two documents to file a sworn denial of Jonathan’s wage rate is sufficient to constitute personal knowledge based on our opinion in Commercial Insurance Company of Newark, New Jersey v. Lane, 480 S.W.2d 781 (Tex.Civ.App.-Dallas 1972, writ ref'd n.r.e.).

However, in Lane, the court contemplated that appellant’s workers’ compensation carrier would have the same access to the employer’s records as the employer and would investigate those records sufficiently to give the carrier personal knowledge of the wage rates. Id. at 783. In this case, however, Travelers has not shown that it conducted any investigation at all, but simply relied on two documents the adjuster reviewed. The adjuster testified he conducted no review of the employer’s wage records in determining Jonathan’s wage rate and did not know whether the wage rate included fringe benefits. The adjuster did not know whether Jonathan or a similarly-situated employee had worked for 210 days prior to the injury and did not offer any basis for using the “just and fair” formula authorized by statute. Indeed, the adjuster testified he did not conduct any investigation into what constituted a just and fair wage in Jonathan’s case and that his affidavit was based only on the information from the employer’s first report of injury and claim for death benefits.

But even if the trial court had erred in striking Travelers’ verification, we conclude any error was harmless. After the trial court struck the verification, the Starkeys offered additional evidence of Jonathan’s wage rate. Mr. Starkey testified that he was project manager and Jonathan was crew supervisor for the same employer. Mr. Starkey testified he was familiar with the wage rate of workers similar to Jonathan who had been employed for a year and that they made approximately $72 a day before fringe benefits. Also, Travelers offered as evidence at trial the claim for death benefits which stated Jonathan’s weekly wage rate was $300. The parties stipulated that the maximum average weekly wage rate for workers’ compensation purposes at the time was $189. Based on this evidence, Jonathan’s average weekly wage exceeded the $189 maximum.

Travelers argues that striking the verification precluded it from presenting evidence of the wage rate. But Travelers does not cite to references in the record, and we have found none, where it offered other evidence of Jonathan’s wage rate and the trial court excluded it. Travelers does not argue or cite any authority that striking the verification was reasonably calculated to cause and probably did cause the rendition of an improper judgment or probably prevented it from properly presenting the case to this Court. Tex.R.App. P. 44.1(a). We conclude the trial court did not abuse its discretion in striking Travelers’ verification of its supplemental answer. We overrule Travelers’ fourth issue.

VII. CONCLUSION

Having overruled Travelers’ issues, we affirm the judgment of the trial court.

      . This lawsuit arose under the now-repealed provisions of the Texas Workers' Compensation Act, Tex.Rev.Civ. Stat. Ann. art. 8306-8309f, now codified in the Texas Labor Code sections 401.001-506.001.

      . When death resulted from a work-related injury, the then-current provision of the workers’ compensation statute entitled the injured worker’s legal beneficiaries to weekly benefits for a period of 360 weeks. Act approved March 28, 1917, 35th Leg., R.S., ch. 105, § 8, 1917 Tex. Gen. Laws 269, 273, amended by Act approved April 3, 1923, 38th Leg., R.S., ch.177 § B, 1923 Tex. Gen. Laws 384, 385, amended by Act approved May 29, 1947, 50th Leg., R.S., ch. 307, § 1, 1947 Tex. Gen. Laws 521, 522, amended by Act of May 23, 1957, 55th Leg., R.S., ch. 397, § 1, 1957 Tex. Gen, Laws 1186, 1188, amended by Act of March 6, 1969, 61st Leg., R.S., ch. 18, § 2, 1969 Tex. Gen. Laws 48, amended by Act of May 10, 1973, 63rd Leg., R.S., ch. 88, § 4, 1973 Tex. Gen. Laws 187, 188-89 (subsequent amendments omitted), repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114, 114-15 (formerly found at Tex.Rev.Civ. Stat. Ann. art. 8306 § 8 (Vernon 1967)).

      . Section 8b provided that when death occurred “as a result of the injury after a period of total or partial incapacity, for which compensation has been paid, the period of incapacity shall be deducted from the total period of compensation and the benefits paid thereunder from the maximum allowed for the death.” Act approved March 28, 1917, 35th Leg., R.S., ch. 103, § 1, 1917 Tex. Gen Laws 269, 274, amended by Act of May 5, 1983, 68th Leg., R.S., ch. 132, § 1, 1983 Tex. Gen. Laws 615, 615 (subsequent amendments omitted), repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114-15 (formerly found at Tex.Rev.Cw. Stat. Ann. art. 8306 § 8b (Vernon. 1967)).

      . Travelers requested a reporter's record including "all exhibits introduced into evidence .... ” When the record was filed, it did not contain plaintiffs’ exhibit one. Travelers did not ask to supplement the record. Travelers subsequently filed its brief arguing primarily insufficiency of the evidence because plaintiffs' exhibit one was never admitted into evidence. The Starkeys requested an extension of time to file their brief to locate plaintiffs’ exhibit one. Travelers responded that "Plaintiffs' Exhibit One is the sole document upon which the Trial Court Judge based his Findings of Fact and Conclusions of Law. However, a careful review of the Transcript and the Record confirms that while this document was discussed, it was never actually offered or admitted as evidence during the trial.” We granted the extension and ordered the court reporter and the district clerk to file supplemental reporter’s and clerk’s records containing plaintiffs’ exhibit one or certificates that they do not have possession of that document. The court reporter advised this Court that plaintiffs’ exhibit one was "stipulated to in open court” but was not given to the court reporter. The district clerk advised this Court that plaintiffs' exhibit one was not filed with the district clerk’s office. Plaintiffs’ exhibit one has not been provided to the Court.

      . Travelers’ reply brief states, "Plaintiffs’ Exhibit 1 is not lost ... [it] was not offered or admitted into evidence."

      . In its first issue, Travelers argues the evidence is legally and factually insufficient to support the trial court's judgment. In issues two and three, Travelers argues the evidence is legally and factually insufficient to support the trial court’s findings of fact and conclusions of law. When a trial court separately files findings of fact and conclusions of law, these control over recitations in the judgment. TexR. Civ. P. 299a; Guridi v. Waller, 98 S.W.3d 315 (Tex.App.-Houston [1st Dist.] 2003, no pet.). For this reason, we do not address Travelers’ challenge to the judgment in its first issue, subpart C.

      . Article 8307 section 6a of the Texas Workers’ Compensation Act provided a means by which the workers’ compensation, carrier could recover benefits paid to the injured worker from liable third parties and be subro-gated to any payments received by the injured worker. Act of March 28, 1917, 35th Leg., R.S., ch. 105, Part II § 6a, 1917 Tex. Gen. Laws 269, 285, amended by Act of May 10, 1973, 63rd Leg., R.S., ch. 88, § 10, 1973 Tex. Gen. Laws 187, 193 (subsequent amendments omitted), repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(10), 1989 Tex. Gen. Laws 114 (formerly found at Tex.Rev.Civ. Stat. Ann. art. 8307 § 6a (Vernon 1967)).

      . Act approved March 28, 1917, 35th Leg., R.S., ch. 105, Part I § 7d, 1917 Tex. Gen. Laws 269, 273, amended by Act of April 28, 1937, 45th Leg., R.S., ch. 261 § 1, 1937 Tex. Gen. Laws 535, 535-36, amended by Act of May 23, 1957, 55th Leg., R.S., ch. 397 § 1, 1957 Tex. Gen. Laws 1186, 1188, amended by Act of May 12, 1959, 56th Leg., R.S., ch. 355, § 2, 1959 Tex. Gen. Laws 778, 780, amended by Act of March 6,1969, 61st Leg., R.S., ch. 18, § 7, 1969 Tex. Gen. Laws 48, 51-52 (subsequent amendments omitted), repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114, 114-15 (formerly found at Tex.Rev.Civ. Stat. Ann. art. 8306 § 7d (Vernon 1967)).

      . The then-current definition of average weekly wage included "the market value of board, lodging, laundry, fuel and other advantage which can be estimated in money which the employee receives from the employer as a part of his remuneration.” Act approved March 28, 1917, 35th Leg., R.S., ch. 105, § 8, 1917 Tex. Gen. Laws 269, 291, amended by Act of April 28, 1937, 45th Leg., R.S., ch. 262 § 1, 1937 Tex. Gen. Laws 537, amended by Act of April 21, 1943, 48th Leg., R.S., ch. 176, § 1, 1943 Tex. Gen. Laws 279, 279-80, amended by Act of May 12, 1959, 56th Leg., R.S., ch. 355, § 1, 1959 Tex. Gen. Laws 778, 779-80 (subsequent amendments omitted), repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(15), 1989 Tex. Gen. Laws 114 (formerly found at Tex.Rev.Civ. Stat. Ann. art. 8309 § 1 (Vernon 1967)).

      . The average weekly wage was computed using one of the first two formulas found in the statute, which were based on the employee, or someone similarly situated, having been employed for at least 210 days. A "just and fair” formula could be used when "by reason of the shortness of time of the employment of the employee, or other employee engaged in the same class of work in the manner and for the length of time specified in the above Subsections 1 and 2, or other good and sufficient reasons, it is impracticable to compute the average weekly wages as above defined....” Id.

      . The weekly compensation rate for incapacity benefits was two-thirds of the average weekly wage as determined by statute, not to exceed the statutory maximum. Act of March 28, 1917, 35th Leg., R.S., ch. 105, § 10, 1917 Tex. Gen. Laws 269, 274, amended by Act of March 6, 1969, 61st Leg., R.S., ch. 18, § 3, 1969 Tex. Gen. Laws 48, amended by Act of May 3, 1973, 63rd Leg., R.S., ch. 88, § 5, 1963 Tex. Gen. Laws 187, 189, amended by Act of May 26, 1981, 67th Leg., R.S., ch. 861, § 1, 1981 Tex. Gen. Laws 3290 (subsequent amendments omitted), repealed by Act of December 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114 (formerly found at Tex.Rev.Civ. Stat. Ann. art. 8306 §10 (Vernon 1967)). The average weekly wage was determined in one of three ways. The most common method was to multiply the average daily wage by 300 and divide by 52. Id.


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    In re Cesar MALDONADO, M.D., Relator.
    No. 08-05-00030-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 17, 2005.
    Diana L. Faust, Cooper & Scully, P.C., Dallas, Robert Dinsmoor, Ray, Valdez, McChristian & Jeans, El Paso, for Relator.
    Michael G. Sawicki, Brown, Sawicki, & Mitchell, L.L.P., Dallas, Yvonne K. Puig, Fulbright & Jaworski, Austin, for interested Party.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

This is an original proceeding in mandamus. Cesar Maldonado, M.D., Relator, seeks a writ of mandamus requiring the trial court to vacate an order denying his motion to dismiss. For the reasons stated below, we deny relief.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). Moreover, there must be no other adequate remedy at law. Id.

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

2. No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986) (orig.proceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840 (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984)). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas in Appellate Procedure in Texas, Sec. 1.4(l)(b) at 47 [2d Ed.1979]).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

The record before us does not reflect that the trial court clearly abused its discretion by denying the motion to dismiss. Accordingly, we deny the relief requested in the petition for writ of mandamus.

CHEW, J., not participating.


author: KEM THOMPSON FROST, Justice. ADELE HEDGES, Chief Justice,

text:
    In re Sharon Elizabeth SULLIVAN, Relator.
    No. 14-04-00514-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 24, 2005.

      Peggy Sue Bittick, Carrie Suzanne Holman, Pearland, for appellants.
    Don Cruse, Austin, Ellen Yarrell, Sallee S. Smyth, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   SUBSTITUTE MAJORITY OPINION

KEM THOMPSON FROST, Justice.

This original proceeding presents a question of first impression under the Texas Family Code: Does an unmarried man who donated sperm to an unmarried woman for the conception of a child have standing to maintain a proceeding to adjudicate parentage of the resulting child?

Relator Sharon Sullivan seeks a petition for writ of mandamus commanding the respondent, the Honorable Bonnie Hel-iums, Judge of the 247th Judicial District Court of Harris County, to (1) vacate her order denying Sullivan’s plea to the jurisdiction and (2) dismiss for lack of standing the proceeding to adjudicate parentage filed by real party in interest Brian Keith Russell. We conclude that, under section 160.602(3) of the Texas Family Code, the respondent did not clearly abuse her discretion in ruling that Russell has standing to maintain a proceeding to adjudicate parentage. Accordingly, we deny Sullivan’s petition for writ of mandamus.

I. Factual and Procedural Background

Sullivan is an unmarried woman. Russell is an unmarried man. Neither has been married previously. Sullivan wanted to conceive a child. Russell agreed to provide his sperm so that Sullivan could be artificially inseminated. Russell and Sullivan signed a “Co-Parenting Agreement” on February 6, 2003, which recites these facts and, in addition, states the following:

3. BRIAN KEITH RUSSELL has agreed to provide his semen to SHARON SULLIVAN for the purpose of donor insemination.
4. Each party agrees that SHARON SULLIVAN’s decision to conceive and bear a child was actually a joint decision of the parties and based upon the commitment of each party to parent the child.
5. Each party agrees that, during the calendar year 2003, SHARON SULLIVAN will attempt to become pregnant through the procedure of donor insemination, and that such inseminations will continue until conception occurs.
6. Each party agrees that any child born as a result of the donor insemination procedure will be the child of BRIAN KEITH RUSSELL as if he and SHARON SULLIVAN were married at the time of conception, and that BRIAN KEITH RUSSELL will be named as the father on the child’s birth certificate.
11. The parties agree that SHARON SULLIVAN shall provide the primary residence for the child as long as she is able to do so. The parties agree that BRIAN KEITH RUSSELL shall have possession of the child at any and all times mutually agreed to in advance by the parties. Failing mutual agreement, BRIAN KEITH RUSSELL shall have possession of the child under the specified terms set out the [sic] Standard Possession Schedule attached to this agreement and incorporated herein.

Insemination and conception were successful in June 2003, and the resulting child, L.J.S., was born on March 2, 2004. However, before the child’s birth, a disagreement arose between Russell and Sullivan, and on March 31, 2004, Russell filed an “Original Petition to Adjudicate Parentage, Suit Affecting the Parent-Child Relationship and Breach of Contract” in the trial court. In this pleading, Russell alleges he is L.J.S.’s father and seeks the following relief:

(1) a decree establishing a parent-child relationship between L.J.S. and Russell;
(2) an order appointing Russell and Sullivan as joint managing conservators of L.J.S.;
(3) temporary orders appointing Russell and Sullivan as joint managing conservators of L.J.S., ordering Sullivan to submit L.J.S. for genetic testing to affirm the parentage, and ordering that a standard possession order be put in place and that visits between Russell and L.J.S. begin immediately;
(4) injunctive relief preventing Sullivan from hiding L.J.S., removing L.J.S. from a geographical boundary to be defined by the court, and from using for any purpose, especially conceiving a child, any frozen or preserved sperm from Russell; and
(5) attorney’s fees and recovery for breach of contract and promissory es-toppel, including damages for mental anguish.

Sullivan filed a plea to the jurisdiction, claiming that under the Texas Family-Code, Russell lacks standing to bring a proceeding to adjudicate parentage because he is a sperm donor with no parental rights. After a hearing, the trial court ruled that Russell had standing and denied Sullivan’s plea to the jurisdiction. Sullivan then filed a petition for writ of mandamus in this court alleging that the trial judge clearly abused her discretion by finding that Russell has standing to maintain a proceeding to adjudicate his parentage of L.J.S.

II. STANDARD OF REVIEW

To obtain mandamus relief, Sullivan, as the relator, must demonstrate (1) that the lower court committed a clear abuse of discretion, (2) for which there is no adequate remedy at law, such as a normal appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Both Russell and Sullivan agree that Sullivan would have no adequate remedy at law if the trial court clearly abused its discretion. In deciding whether the trial court clearly abused its discretion in determining that Russell has standing to maintain a proceeding to adjudicate parentage (hereinafter “parentage proceeding”), we do not consider the underlying merits of the case.

III. Analysis

Standing is a prerequisite to subject-matter jurisdiction, which is essential to a court’s power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). A party may challenge the absence of subject-matter jurisdiction by a plea to the jurisdiction and by other procedural vehicles. Id. at 554. A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat the alleged claims, without regard to whether they have merit. Id. The purpose of a dilatory plea is not to force a plaintiff to preview its case on the merits, but to establish a reason why the merits of its case should never be reached. Id. The Texas Supreme Court has emphasized that a court should not decide standing issues based on its views of the merits:

In deciding a plea to the jurisdiction, a court may not weigh the claims’ merits but must consider only the plaintiffs’ pleadings and the evidence pertinent to the jurisdictional inquiry. When we consider a trial court’s order on a plea to the jurisdiction, we construe the pleadings in the plaintiffs favor and look to the pleader’s intent.

Id. at 554-55.

A trial court accepts the factual allegations in the petition as true, unless the defendant pleads and proves the allegations were made fraudulently to confer jurisdiction. Id. at 554; TAC Realty, Inc. v. City of Bryan, 126 S.W.3d 558, 561 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). When reviewing a trial court’s order on a plea to the jurisdiction, an appellate court may look to evidence outside of the pleadings:

[T]he issues raised by a dilatory plea are often such that they cannot be resolved without hearing evidence. And because a court must not act without determining that it has subject-matter jurisdiction to do so, it should hear evidence as necessary to determine the issue before proceeding with the case. But the proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction.
The court should, of course, confine itself to the evidence relevant to the jurisdictional issue.

Bland Indep. Sch. Dist., 34 S.W.3d at 554-55.

Standing is a constitutional prerequisite to suit in both federal courts and the courts of Texas. Williams v. Lara, 52 S.W.3d 171, 178 (Tex.2001). Nonetheless, the judge-made criteria regarding standing do not apply when the Texas Legislature has conferred standing through a statute. Id. In statutory standing cases, such as this, the analysis is a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing and whether the claimant in question falls in that category. See Tex. Dep’t of Protective and Regulatory Servs. v. Sherry, 46 S.W.3d 857, 859-61 (Tex.2001) (determining whether putative father had standing to maintain a suit affecting the parent-child relationship based solely on construction of statutory standing provision).

Russell asserts that he has standing under a statute that allows “a man whose paternity of the child is to be adjudicated” to maintain a parentage proceeding. See Tex. Fam.Code Ann. § 160.602 (Vernon Supp.2004). It is undisputed that Russell is a man, but Sullivan asserts that Russell is not “a man whose paternity is to be adjudicated” because, Sullivan claims, Russell is a “donor” who lacks parental rights and standing to maintain a parentage proceeding. See Tex. Fam.Code Ann. § 160.102(6) (Vernon 2002) (defining “donor” as “an individual who produces eggs or sperm used for assisted reproduction, regardless of whether the production is for consideration” but excluding from this definition “a husband who provides sperm or a wife who provides eggs to be used for assisted reproduction by the wife ... or ... a woman who gives birth to a child by means of assisted reproduction”). Sullivan asserts that section 160.702 of the Texas Family Code deprives Russell of standing because, under that section, “a donor is not a parent of a child conceived by means of assisted reproduction.” See Tex. Fam.Code Ann. § 160.702 (Vernon 2002).

It is undisputed that L.J.S. was conceived by means of assisted reproduction using Russell’s sperm and that Russell and Sullivan are not married to each other. Nonetheless, Russell asserts that section 160.702 does not apply to a known donor of sperm who executed a “Co-Parenting Agreement” under which the donor intended to assume an active role as father of the child conceived by means of assisted reproduction. In the alternative, Russell asserts that, to the extent that section 160.702 is found to deprive him of parental status under these circumstances, it is unconstitutional under various theories.

Before reaching the issue of whether Russell is a donor who lacks parental rights, we first must determine whether, under the proper statutory construction, donor status is part of the inquiry as to whether Russell has standing to maintain a parentage proceeding. If, under the statutory standing criteria, Russell has standing as a “man whose paternity of the child is to be adjudicated,” even though, on the merits, the trial court may decide that he is a donor with no parental rights, then the issue of Russell’s status as a donor is not relevant to standing, and this court must presume (for standing purposes only) that Russell’s claims have merit, that is, that he is not a donor and that he has parental rights. See Bland Indep. Sch. Dist., 34 S.W.3d at 554-55 (stating that court should not decide standing based on its views of the merits of the asserted claims). On the other hand, if the statute requires that men disprove donor status before they can have standing to maintain a parentage proceeding, then we must address whether Russell is a donor.

The term “man whose paternity of the child is to be adjudicated” is not defined in the Texas Family Code. This term was created in the recent revisions to the Uniform Parentage Act (“UPA”). So far, only a few states have adopted these revisions, and research reveals no cases addressing the meaning of this statutory phrase. See UPA (2000), section 602. On its face, the term lacks clarity. This phrase seems to beg the question that it is intended to answer. We look to section 160.602 as the statutory standing provision to tell us who has standing to maintain parentage proceedings, yet this section states that all men have standing if their “parentage is to be adjudicated.” This language presents a paradox. A man cannot seek an adjudication of his paternity unless he has standing, yet section 160.602 states that a man generally has no standing to seek an adjudication of his paternity unless his paternity is to be adjudicated. See Tex. Fam.Code Ann. § 160.102(9) (defining “intended parents” as “individuals who enter into an agreement providing that the individuals will be the parents of a child born to a gestational mother by means of assisted reproduction....”); Tex. Fam.Code Ann. § 160.751 (defining a “gestational mother” as “a woman who gives birth to a child conceived under a gestational agreement”); Tex. Fam.Code Ann. § 160.752, et seq. (defining gestational agreement as one in which woman agrees to give birth to child, relinquishing all of her parental rights regarding the child, so that the intended parents can be the child’s parents); Tex. Fam.Code Ann. § 160.602 (granting standing only to men “whose paternity of the child is to be adjudicated,” who are “related within the second degree by consanguinity to the mother of the child, if the mother is deceased,” or who are an “intended parent”).

In an attempt to determine the meaning of this perplexing and ambiguous statutory phrase, we consider the object sought to be obtained, the circumstances under which the statute was enacted, the legislative history, former statutory provisions, including laws on the same or similar subjects, and the consequences of a particular construction. See Tex. Gov.Code Ann. § 311.023 (Vernon 1998). The circumstances under which the statute was enacted and the legislative history indicate that, although Texas had not previously enacted the entire UPA, the Texas Legislature sought to enact the 2000 version of the UPA. See Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610 (enacting legislation substantially similar to 2000 version of UPA); House ReseaRch Organization, Bill Analysis, Tex. H.B. 920, 77th Leg., R.S. (May 8, 2001) (stating that the intent of this legislation was to enact the 2000 version of the UPA). Beyond this, the circumstances under which the statute was enacted and the legislative history do not speak to the issue of which men have standing to maintain a parentage proceeding or to the meaning of the phrase “a man whose paternity of the child is to be adjudicated.”

Before the Texas Legislature enacted this legislation in 2001, Texas had no analogous standing statute regarding parentage proceedings. Because the Texas Legislature sought to enact the 2000 version of the UPA, we examine that uniform act and previous versions of the UPA.

The original UPA — the 1973 version— had a provision similar to section 702 of the 2000 UPA, under which a sperm donor had no parental rights. See UPA (1973), section 5. The very next section of the 1973 UPA dealt with who could bring an action to determine the existence of a father and child relationship. See UPA (1973), section 6. Under that section, for a child that had no presumed father, “a man alleged or alleging himself to be the father,” among others, had standing to bring an action to determine the existence of the father and child relationship. See UPA (1973), section 6(c). The 1973 UPA allowed “[a]ny interested party” to bring an action as to children with presumed fathers under certain provisions of the UPA; however, as to children with presumed fathers under other provisions of the UPA, a putative father had no standing to initiate a proceeding. See UPA (1973), section 6(a), (b). The 2000 UPA eliminated this lack of standing as to certain putative fathers, in part due to considerations regarding the Federal Family Support Act of 1988. See UPA (2002), sections 602, 607 & cmts.

The Federal Family Support Act of 1988, as a condition for receiving federal matching funds to establish paternity and to enforce child support orders, requires states to maintain “[p]rocedures ensuring that the putative father has a reasonable opportunity to initiate a paternity action.” See 42 U.S.C. § 666(a)(5)(L). The comment to the 2000 version of the UPA that Texas enacted in 2001 states that section 602 is based on section 6 of the 1973 UPA and “conforms to the mandate of 42 U.S.C. § 666(a)(5)(L) requiring that a putative father have a reasonable opportunity to initiate a paternity proceeding.” UPA (2000), section 602 cmt. At the time the Texas Legislature adopted the 2000 UPA in 2001, the only comment that accompanied section 702 stated that its source was section 4(a) of the Uniform Status of Children of Assisted Conception Act. See UPA (2000), section 702 cmt. The Uniform Status of Children of Assisted Conception Act is short, states basic rules as to parental rights (including the principle that the donor is not a parent of a child conceived through assisted conception), and has no provisions that relate to procedural issues or to standing for maintaining parentage proceedings. See Uniform Status of Children of Assisted Conception Act (1988).

In 2002, after the Texas Legislature adopted the 2000 version of the UPA, the National Conference of Commissioners on Uniform State Laws adopted a revised version of the UPA. See UPA (2002). Although the text of sections 602 and 702 of the UPA remained the same, the 2002 version of the UPA changed the comments to these sections. See UPA (2002), sections 602, 702 cmts. These comments spawn confusion. The 2002 comment to section 602 removes the reference to the Federal Family Support Act of 1988, although it still refers to section 6 of the 1973 UPA as the source of this section. See UPA (2002), section 602 cmt. This comment also contains new language, including the following: “This section grants standing to a broad range of individuals and agencies to bring a parentage proceeding. But, several limitations on standing to sue are contained within the Act.” See id. The comment then goes on to refer to articles 3 and 8 as well as sections 607 and 609 of the UPA, which apparently are other “limitations on standing to sue.” See id. Although this comment seems to indicate that there are limitations on standing in the revised UPA outside of section 602, the comment does not mention section 702 of the UPA as one of these limitations. See id. Further, several of the sections of the UPA to which the comment does refer do not appear to limit standing. See id. (referring to articles 3 and 8 and sections 607 and 609 of the UPA). Article 3 of the UPA deals with voluntary acknowledgment of parentage, which, once binding, may have issue or claim preclusion effect on the parentage question. Article 3, however, contains no apparent limitation on standing. See UPA (2002), article 3. Sections 607 and 609 of the 2002 UPA establish, in certain contexts, time limitations for bringing proceedings to adjudicate parentage, to disprove the father-child relationship regarding a presumed father, or to rescind an acknowledgment of parentage; however, these sections do not state that the parties in question lose standing. See UPA (2002), sections 607, 609. Section 807 of the UPA seems to limit the ability of a gestational mother to assert that she is the mother of a child to whom she gave birth under a court-validated gestational agreement. See UPA (2002), section 807. Although this provision arguably might be a limitation on standing, it seems more akin to issue or claim preclusion.

As to section 702, the comment to the 2002 UPA contains the following statements, among others: “The donor can neither sue to establish parental rights, nor be sued and required to support the resulting child. In sum, donors are eliminated from the parental equation.” See UPA (2002), section 702, cmt. This comment suggests that donors under section 702 have no standing, and Sullivan makes this comment the cornerstone of her argument that section 160.702 deprives Russell of standing. None of the comments to section 702 of the 2002 UPA, however, were in existence when the Texas Legislature adopted the relevant portions of sections 160.602 and 160.702 of the Texas Family Code in 2001. Furthermore, these are not comments made by lawmakers or any entity associated with the Texas Legislature. These are comments by nonlegislators, made after the Texas Legislature enacted the statute in question. Therefore, these statements are not legislative history, nor are they otherwise relevant to the statutory-construction issue at hand. See Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 380 (Tex.App.-Houston [14th Dist.] 2004, pet. filed) (holding post-enactment statements by nonlegisla-tors are irrelevant to interpretation of ambiguous statute); see also Sullivan v. Finkelstein, 496 U.S. 617, 631, 110 S.Ct. 2658, 2667, 110 L.Ed.2d 563 (1990) (Scalia, J., concurring in part) (stating that “post-enactment legislative history” is an oxymoron and should not be considered in interpreting statutes and that even the proponents of its use limit it to statements from members of the legislative body that enacted the statute).

The 1973 version of the UPA allowed a man alleging himself to be the father of the child to maintain a parentage proceeding in cases, such as the one at hand, in which the child has no presumed father. See UPA (1973), section 6. The 2000 version of the UPA changed the standing language to “a man whose paternity of the child is to be adjudicated.” See UPA (2000), section 602. Although the exact meaning of this phrase may be elusive, its language and the comment to section 602 of the 2000 UPA indicate that this phrase is at least as broad, if not broader than, “a man alleged or alleging himself to be the father.” See UPA (2000), section 602 & cmt. If the Texas Legislature or the UPA drafters had intended to exclude donors from the class of those who have standing to maintain a parentage proceeding, they easily could have excluded donors from the group of men “whose paternity is to be adjudicated.” See, e.g., UPA (2000), section 102(3) (excluding male donors from definition of “alleged father,” which definition is not used in section 602 but is used in other sections of the 2000 UPA); Tex Fam.Code ANN. § 101.0015 (excluding male donors from definition of “alleged father” which term is used in various sections of the Texas Family Code, but not in section 160.602). The omission of such an exclusion from the statute suggests that our lawmakers intended a sperm donor to have standing as a man “whose paternity is to be adjudicated.”

Because this court deemed the construction and constitutionality of the Texas Family Code provisions at issue in this case to be a matter of great public concern, we requested the Attorney General of Texas to submit an amicus curiae brief addressing the statutory construction and constitutional issues presented in this case. See Commissioners’ Court of Nacogdoches County. v. Weaver, 141 S.W.2d 764, 770 (Tex.Civ.App.-Beaumont 1940), rev’d on other grounds, 135 Tex. 611, 146 S.W.2d 170 (Tex.Com.App.1941). Though relying on a different legal analysis, the Attorney General reached the conclusion that, under the Texas Family Code, Russell has standing to maintain this parentage proceeding.

Based on the language of the statute, the object sought to be obtained, the circumstances under which the statute was enacted, the legislative history, former statutory provisions, including laws on the same or similar subjects, and the consequences of the different constructions, we conclude that, at a minimum, section 160.602(3) confers standing on a man alleging himself to be the biological father of the child in question and seeking an adjudication that he is the father of that child. We further conclude that under the statute, as drafted, the issue of the man’s status as a donor under section 160.702 is to be decided at the merits stage of the litigation rather than as part of the threshold issue of standing. It is undisputed that Russell alleges himself to be L.J.S.’s biological father and that he has filed a parentage proceeding seeking an adjudication that he is L.J.S.’s father. Based on our interpretation of the relevant statutes and the undisputed facts germane to the issue of Russell’s standing, we conclude that, as a matter of law, Russell has standing to maintain a proceeding to adjudicate his parentage of L.J.S.

Sullivan argues forcefully that the Texas Family Code, in unambiguous language, confers no rights on known sperm donors, such as Russell, and that this is confirmed by the Texas Legislature’s failure to adopt new language from the 2002 UPA that would confer parental rights on men in Russell’s situation. See UPA (2002), sections 703, 704. These arguments, however, go to the merits of this case, rather than showing that Russell lacks standing under section 160.602(3). The facts relevant to the issue of whether Russell is a donor without parental rights under section 160.702 appear to be undisputed. Because courts interpret statutes as a matter of law, trial and appellate courts would have the capability, if the law so provided, to expeditiously decide the issue of Russell’s donor status as part of their determination of whether Russell has standing under section 160.602. The Texas Legislature, however, has not made the determination of donor status part of the standing inquiry. See Tex. Fam.Code Ann. § 160.602. Because, at this juncture, the only issue is Russell’s standing, the trial court, in ruling on Sullivan’s plea to the jurisdiction, was prohibited from reaching the merits of Russell’s claim that he is not a donor under section 160.702. See Bland Indep. Sch. Dist., 34 S.W.3d at 554-55 (stating courts may not reach the merits of the parties’ claims in deciding the issue of standing); TAC Realty, Inc., 126 S.W.3d at 561-65 (stating that standing analysis is entirely separate from determination of merits and holding that trial court erred in determining legal issue of the constitutionality of the city’s agreements, because that was a determination on the merits, which must not be reached in determining standing); City of Dallas v. First Trade Union Sav. Bank, 133 S.W.3d 680, 686 (Tex.App.-Dallas 2003, pet. filed) (holding that, in interlocutory appeal regarding city’s plea to the jurisdiction, court could not address city’s argument that bank’s claims against city failed as a matter of law because court may not reach the merits of the claims in determining plea to the jurisdiction). Likewise, in ruling on Sullivan’s petition for a writ of mandamus regarding standing, this court cannot and does not address the merits of Russell’s claims, including his assertion that he is not a donor under section 160.702. See Bland Indep. Sch. Dist., 34 S.W.3d at 554-55; TAC Realty, Inc., 126 S.W.3d at 561-65; First Trade Union Sav. Bank, 133 S.W.3d at 686.

• This court has taken no position on the validity or enforceability, if any, of the "Co-Parenting Agreement” signed by Sullivan and Russell.
• This court has not based its determination that Russell has standing on the "Co-Parenting Agreement.”
• This court has not held that the trial court should determine the effect, if any, of the "Co-Parenting Agreement” by means of an exercise of the trial court's discretion.
• This court has not indicated that the merits of cases such as this one should be decided by the trier of fact on a case-by-case basis.

It is the role of the Texas Legislature to decide whether Texas public policy would be best served by requiring men to show they are not donors before they can have standing to maintain a parentage proceeding. This court must interpret and construe the statute as written; we may not invade the legislative field. At present, the Texas Family Code confers standing on Russell. See Tex. FaM.Code Ann. § 160.602. Unless and until the Texas Legislature amends the Texas Family Code to achieve the result Sullivan urges, there is no basis to deny standing in this type of case. Accordingly, we find no grounds for mandamus relief.

IY. Conclusion

The merits of Russell’s parentage proceeding raise important issues of apparent first impression under Texas law. However, under the standing statute enacted by the Texas Legislature, we are unable to decide these important issues in determining the standing issue that is before this court. See Tex. Fam.Code ANN. § 160.602; Bland Indep. Sch. Dist., 34 S.W.3d at 554-55; TAC Realty, Inc., 126 S.W.3d at 561-65; First Trade Union Sav. Bank, 133 S.W.3d at 686. Because Russell is a man alleging himself to be LJ.S.’s biological father and seeking an adjudication that he is her father, we conclude that section 160.602 of the Texas Family Code confers standing on Russell to maintain a parentage proceeding. Accordingly, we deny Sullivan’s petition for writ of mandamus.

HEDGES, C.J., concurring.

ADELE HEDGES, Chief Justice,

concurring.

While I join the majority’s holding and disposition, I respectfully disagree with its reasoning in reaching its conclusion. Today the majority concludes that the real party in interest, Brian Keith Russell, has standing under Chapter 160 of the Texas Family Code to establish his paternity of a child conceived through artificial insemination from the donation of his sperm to an unmarried woman, relator Sharon Elizabeth Sullivan. Because the plain and ordinary meaning of the relevant statutory provision in that chapter clearly confers standing upon a party such as Russell in the present case, I respectfully concur.

Standing Under Section 160.602

Standing to sue may be predicated upon either statutory or common-law authority. See Williams v. Lara, 52 S.W.3d 171, 178-79 (Tex.2001). When standing is conferred by statute, the text of the operative provision and the case law interpreting it serve as the proper framework for the analysis. DaimlerChrysler Corp. v. Inman, 121 S.W.3d 862, 869 (Tex.App.-Corpus Christi 2003, pet. filed). Sullivan claims that no provision within the Family Code confers standing upon Russell. I do not agree.

Section 160.602 provides: “Subject to Subchapter D [Texas Family Code § 160.301-316] and Sections 160.607 and 160.609 and except as provided by Subsection (b), a proceeding to adjudicate parentage may be maintained by: ... (3) a man whose paternity of the child is to be adju-dicated_” Tex. Fam.Code Ann. § 160.602(a)(3) (Vernon Supp.2004-2005). Russell’s petition states as follows: “A purpose of this suit is to establish the parent-child relationship between BRIAN KEITH RUSSELL and the child, the subject of this suit.” Therefore, Russell would clearly have standing under section 160.602 unless some other section of Chapter 160 states otherwise.

Statutory Text of Section 160.702

Sullivan next claims that the plain language of section 160.702 negates any standing Russell may have been granted under section 160.602. Section 160.702 provides: “A donor is not a parent of a child conceived by means of assisted reproduction.” Tex. Fam.Code Ann. § 160.702 (Vernon 2002) (emphasis added).

The primary rule of statutory interpretation is to ascertain and give effect to the intent of the Texas Legislature. Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999). If the statute is unambiguous, we are required to seek this intent in the plain and common meaning of its words and not elsewhere. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990).

The “plain and common meaning” of section 160.702 does not negate Russell’s standing under section 160.602. Rather, section 160.702 states only that one’s status as a mere donor does not establish in and of itself the existence of a parent-child relationship between the donor and the child resulting from assisted reproduction. It does not state that a donor can never be a parent under appropriate circumstances. Perhaps Sullivan’s construction of this provision would be accurate if the statute had provided, “A donor cannot be a parent of a child conceived by means of assisted reproduction.” But that language does not appear in section 160.702, and Sullivan’s construction cannot be reached based on the plain and common meaning of the provision as enacted. In the present case, Russell does not claim that he is a father based solely on his status as a donor; rather, he alleges paternity of the child based on a “written co-parenting agreement.” Therefore, Russell’s standing is not negated by section 160.702 because the language simply does not bear the meaning Sullivan ascribes to it.

Conclusion

Because section 160.602 of the Family Code broadly confers standing upon Brian Keith Russell in the present case and no other provision in Chapter 160 negates such standing, the trial court did not err in denying relator Sharon Elizabeth Sullivan’s plea to the jurisdiction. Accordingly, I concur in the majority’s denial of her petition for writ of mandamus.

      . Sullivan was not represented by counsel when she signed the agreement, which was drafted by an attorney retained by Russell. Although the parties exchanged drafts of a modified agreement that purportedly would have replaced their "Co-Parenting Agreement,” the parties never reached agreement as to any amendment, revocation, or modification of their original agreement.

      . Although the parties are in agreement on this issue, we need not and do not determine whether Sullivan has an adequate remedy at law because we conclude that the trial court did not clearly abuse its discretion and deny mandamus relief on that basis.

      . It is undisputed that Russell donated his sperm. Nonetheless, throughout this opinion, when we speak of the issue of whether Russell is a donor, we refer to the issue of whether Russell falls under the statutory definition of donor and therefore lacks parental rights under section 160.702. See Tex. Fam.Code Ann. §§ 160.102(6), 160.702.

      . All statutory references herein are to the Texas Family Code unless otherwise stated.

      . Even if one construed article 8 of the UPA as eliminating the standing of a gestational mother to file a proceeding to adjudicate parentage as to a child born to her under a valid gestational agreement, this does not appear to support a similar reading of section 702 of the UPA. Though it might be an example of a limitation on standing that is not contained in section 602 of the UPA itself, article 8 differs significantly from article 7 of the UPA. Article 8 provides procedures independent from a parentage proceeding for intended parents to validate a gestational agreement and be declared parents of the child. See UPA (2000), article 8. Article 7 does not provide independent procedures, and, in fact, section 705 of the UPA indicates that a proceeding to adjudicate parentage is the way to resolve controversies over parentage in the assisted-reproduction context. See UPA (2000), section 705.

      . There is no indication that the 2002 comments were substantive, and these comments may be referring to "standing” in a looser sense, like that used in the comment to section 602, to refer to the ability to succeed on the merits, which is actually not standing at all. See UPA (2002), sections 602, 702, cmts.

      . On rehearing, both Sullivan and Russell have submitted filings in which they attribute to this court various holdings and rulings that far exceed the scope of our opinion. To eliminate the parties’ apparent confusion about the nature and scope of this court’s decision in this case, we note the following:

      . In the event of any conflict between a Chapter 160 provision and another state statute or rule, the former prevails. Tex. Fam.Code Ann. § 160.002 (Vernon 2002).

      . The question of whether the “written co-parenting agreement” suffices to confer the status of parenthood is not before us. I express no opinion on whe&er Russell will ultimately prevail in the trial court. I only recognize his standing to try.


text:
    The STATE of Texas, Texas DEPARTMENT OF TRANSPORTATION, Appellant, v. Cynthia BARRAZA, Appellee.
    No. 08-03-00067-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2005.

      David B. Strain, Asst. Atty. Gen., Austin, for Appellant.
    Anthony C. Aguilar, El Paso, for Appel-lee.
    Before Panel No. 3 BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s denial of Appellant’s motion for judgment not withstanding the verdict or in the alternative, motion for new trial on the basis of sovereign immunity. For the reasons stated, we reverse the judgment of the trial court and render judgment in favor of Appellant.

I. SUMMARY OF THE EVIDENCE

Appellee, Cynthia Barraza, was a passenger in a vehicle driven by Nicolas Morales that was involved in a single car accident on Interstate Highway 10 in El Paso, Texas shortly after midnight on September 6, 1998. Appellee was a passenger in the front seat and Alfredo Chavira was a passenger in the backseat. The vehicle was traveling eastbound in the far left-hand lane. As it approached the Yar-brough exit, it swerved sharply to right colliding with the right-hand guardrail. The vehicle traveled over the guardrail, left the roadway, and rolled down a concrete embankment. The cause of the accident is represented as the result of Ap-pellee grabbing the steering wheel and turning it sharply to the right during an argument with the driver Nicolas Morales or as the result of Nicolas Morales reaching for his cell phone and suddenly turning the vehicle. The three individuals had been drinking and partying at a local nightclub. Appellee suffered serious injuries in the accident and filed suit against Nicolas Morales and the State of Texas, Texas Department of Transportation. Alfredo Chavira appears as intervenor in the case below. Appellee’s claims against Appellant allege that the guardrail at the location in question had been improperly designed and maintained and that the State owed a duty to correct or warn of a dangerous condition associated with the guardrail.

Among other defenses, Appellant claimed the defense of sovereign and official immunity in its Original Answer.

On October 21, 2002, trial to a jury was held. After a five-day trial, the jury returned a verdict in favor of Appellee finding Appellant 50 percent negligent for the accident in question. On November 22, 2002, Appellant filed a motion for judgment notwithstanding the verdict or motion for new trial. The court denied the motions on January 6, 2003. On February 3, 2003, the trial court entered a judgment in favor of Appellee awarding damages in the amount of the statutory limit of $250,000.

II. DISCUSSION

In three issues on appeal, Appellant complains of the rulings of the trial court in denying its motion for judgment notwithstanding the verdict on the basis of sovereign immunity and because of no evidence to prove a premises defect claim. Issue No. Three complains that the trial court erroneously denied Appellant’s motion for new trial based upon the erroneous admission and exclusion of evidence.

Issue No. One complains, in substance, that Appellant is immune from suit on the basis of sovereign immunity for the cause of action pleaded and proved by Appellee at trial. Because we find that Issue No. One is dispositive of the case, we do not reach the remaining issues.

A. Standard of Review

A judgment notwithstanding the verdict is authorized only where the trial court determines that no evidence supports the jury’s findings. Mancorp v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). Therefore, the denial of a motion for judgment notwithstanding the verdict is reviewed on appeal as a “no evidence” point. Sherman v. First Nat’l Bank, 760 S.W.2d 240, 241-42 (Tex.1988). In reviewing, a “no evidence” challenge, the appellate court considers only the evidence and reasonable inferences therefrom that tend to support the jury findings, disregarding all contrary evidence and inferences. Redman Homes, Inc. v. Ivy, 920 S.W.2d 664, 667 (Tex.1996). If there is any evidence of probative force to support the jury’s findings, however, a motion for j.n.o.v. must be denied. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986).

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.-El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.-El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832. We review Appellant’s issue to resolve the question of sovereign immunity as a defense as a matter of law.

B. Sovereign Immunity and the Texas Tort Claims Act

TxDOT, as a state agency, is immune from suit unless that immunity is waived. Tex. Dep’t of Transp. v. City of Floresville Elec. Power & Light Sys., 53 S.W.3d 447, 455 (Tex.App.-San Antonio 2001, no pet.) (citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex.2000)). The Act provides that a governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally hable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). The Act does not apply to:

(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or
(2) a governmental unit’s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.

Tex. Civ. Prac. & Rem.Code Ann. § 101.056 (Vernon 1997).

The installation of roadway safety devices is discretionary. See Stanford v. State Dept. of Highways & Public Transp., 635 S.W.2d 581, 582 (Tex.App.Dallas 1982, writ ref'd n.r.e.). Sovereign immunity precludes a plaintiff from alleging misfeasance on the part of the government by failing to install certain safety features, such as guard rails and stop signs. See id; City of Fort Worth v. Robles, 51 S.W.3d 436, 440 (Tex.App.-Fort Worth 2001, pet. denied). The Act does not waive sovereign immunity for roadway design, which is a discretionary act. Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002) (finding that the design of highway and lack of barrier in median between north and southbound lanes reflected discretionary decisions for which TxDOT retained immunity); see State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999) (holding that decisions about highway design and about what type of safety features to install are discretionary policy decisions that are protected by sovereign immunity).

Whether a condition on state property is a premises defect or a special defect is a question of law. Tex. Civ. Prac. & Rem.Code Ann. § 101.021 (Vernon 1997). As to premises and special defects:

(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.

Tex. Civ. Prac. & Rem.Code Ann. § 101.022 (Vernon 1997). To establish governmental liability for premises defects, a plaintiff must plead and prove that: (1) the condition is unreasonably dangerous; (2) the government had knowledge of the defect and did not repair or warn of the defect after a reasonable amount of time; (3) the injured party did not have prior knowledge of the defect; and (4) the defect was the proximate cause of the injured party’s harm. See State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). We look to the record as a whole to determine whether Appellant is entitled to claim immunity as a matter of law.

The pleadings allege that TxDOT negligently maintained the guardrail in Interstate Highway 10 in El Paso, Texas and that such failure to maintain created a special defect. The pleadings enumerate eleven separate acts of negligence which in substance complain of the design, condition, and maintenance of the guardrail located at the scene of the accident. At trial, the critical complaint raised by Ap-pellee’s expert involved the fact that the guardrail in question had been originally constructed in 1968 at a height, to the center bolt, of approximately twenty-one inches. Because of overlays placed on the surface of the highway in the interim since construction, the effective height of the guardrail had been reduced to approximately sixteen and one-half inches. Ap-pellee contends that the condition created by the overlays was a defective design decision which created liability on the part of Appellant for the creation of a special defect or condition of property. She further contended that because Appellant had repaired previous sections of the roadway’s guardrails, it had breached its duty by failing to replace the guardrails and reconstruct the entire guardrail system appurta-nant to Interstate Highway 10 to a height of twenty-one inches. Appellee argues that Appellant had an obligation to maintain the guardrails at an effective height of twenty-one inches and the failure to do so was a failure to properly maintain the system in question. The arguments are premised on the fact that Appellant has a duty to properly maintain state highways and Appellee’s belief that Appellant has a duty to raise guardrails when repaired.

We agree with Appellee that TxDOT has a duty to properly maintain state highways. See Tex. Transp. Code Ann. §§ 224.031, 224.032 (Vernon 1999). We also agree that maintenance is clearly distinguishable from design in that maintenance refers to the preservation of existing conditions. Stated differently, maintenance is the continuing implementation of a previous policy decision. See City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex.App.-Fort Worth 1998, no pet.); Brown v. Texas Dep’t of Trans., 80 S.W.3d 594, 598 (Tex.App.-Corpus Christi 2000), aff'd by County of Cameron v. Brown, 80 S.W.3d 549 (Tex.2002). Maintenance is the preservation of existing infrastructure. See Garza v. State, 878 S.W.2d 671, 675 (Tex.App.-Corpus Christi 1994, no writ) (finding that maintenance involves the preservation of existing conditions); see also Siders v. State, 970 S.W.2d 189, 193 (Tex.App.-Dallas 1998, pet. denied) (finding a duty to maintain highway as designed).

Appellee concedes that the design of roadways is a discretionary function for which immunity exists. Appellee argues, however, that the facts in issue involve a failure to maintain the guardrail and results in a waiver of immunity under the act. Her contention is that Appellant was required to remove and replace the entire guardrail infrastructure at any time that any portion of the guardrail was damaged to raise the entire system to the original height of twenty-one inches to the center bolt. She agrees that the portion of damaged guardrail was replaced when damaged, or maintained, by Appellant at the height established at the time it was originally designed and constructed. Her complaint is, in substance, of subsequent design decisions of engineers to place asphalt overlays on the surface of the highway reduces the effective height of the guardrail system at the location of the overlay. She contends that the corresponding decision not to raise the entire system as part of the design for the highway improvements, is a failure to maintain. On the contrary, maintenance of the system as originally designed and constructed is the type of action contemplated in Garza and is precisely what has occurred in the case. Appellant maintained the system as it was originally designed and constructed and made discretionary design decisions during the overlay process not to change the design. The case at bar, therefore, involves a discretionary design decision and thus does not fall under the Act. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056; Stanford, 635 S.W.2d at 582.

The change in the height of the guardrail and the complaint about its construction reflect discretionary decisions for which TxDOT retains immunity under the Act’s discretionary function exception. See Tex. Civ. Prac. & Rem.Code Ann. § 101.056; see Ramirez, 74 S.W.3d at 865, 867; Miguel, 2 S.W.3d at 251; State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.1999); Maxwell v. Texas Dep’t of Transp., 880 S.W.2d 461, 463-64 (Tex.App.-Austin 1994, writ denied). Appellee does not have a cognizable premises defect claim under the Act because any decisions complained of under the act were discretionary. Consequently, the immunity of Appellant is not waived under the act. We find, as a matter of law, that Appellant’s decisions regarding the design and maintenance of the guardrail in question were discretionary decisions under Tex. Civ. Prac. & Rem. Code Ann. § 101.056 for which immunity is preserved. For that reason, we sustain Appellant’s Issue No. One, reverse the ruling of the trial court, and render judgment in favor of Appellant. In light of our disposition of Issue No. One, we need not address Appellant’s remaining issues on review.

Having sustained Appellant’s Issue No. One, we reverse the judgment of the trial court and render judgment in favor of Appellant.

LARSEN, J., not participating.


text:
    In re James Lee SWEED, Relator.
    No. 08-05-00062-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2005.

      Carmen I. Perez, Linebarger Heard Goggan Blair, Graham Pena & Sampson, L.L.P., El Paso, for Interested Party.
    James Lee Sweed, Gatesville, pro se.
    Gonzalo Garcia, El Paso, for Respondent.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

This is an original proceeding in mandamus. James Lee Sweed, Relator, seeks a writ of mandamus requiring the trial court to “perform his or her ministerial duty to bring this non-eivil case to a final disposition. ...” For the reasons stated below, we deny relief.

STANDARD OF REVIEW

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). Moreover, there must be no other adequate remedy at law. Id

1. Clear abuse of discretion

An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id at 840. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court’s decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no “discretion” in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

2. No adequate remedy by appeal

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986) (orig.proceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840 (quoting State v. Walk er, 679 S.W.2d 484, 485 (Tex.1984)). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas in Appellate Procedure in Texas, Sec. 1.4(l)(b) at 47 [2d Ed.1979]).

APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT

The record before us does not reflect that the trial court clearly abused its discretion in connection with any orders issued related to the case currently pending. Relator has, in fact, not identified any order or action of the trial court about which he is complaining. Accordingly, we deny the relief requested in the petition for writ of mandamus.


author: CAROLYN WRIGHT, Justice.

text:
    CITY OF SHERMAN, Texas, Appellant/Real Party in Interest v. Shawn EIRAS, et al., Appellees/Relators.
    No. 05-05-00338-CV.
    Court of Appeals of Texas, Dallas.
    March 17, 2005.
    Charles W. Rowland, Jr., City Attorney, Sherman, for appellant.
    Robert E.L. Richardson, Sherman, for appellees.
    Before Justices WRIGHT, O’NEILL, and LANG.
   OPINION AND ORDER

CAROLYN WRIGHT, Justice.

The Court suspends the rules of appellate procedure and immediately submits the appeal of the temporary injunction without briefs and oral argument. Tex. Rs.App. P. 2 and 28.3.

The temporary injunction contained in the clerk’s record does not include a setting for trial on the merits as required by civil procedure rule 683. Tex.R. Civ. P. 683. The failure to meet the requirements of civil procedures rules 683 and 684 renders a temporary injunction subject to being declared void. Qwest Communications Corp. v. A T & T Corp., 24 S.W.3d 334, 337 (Tex.2000) (per curiam). A temporary injunction which does not include a setting for trial on the merits on a specific date is void. EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex.App.-San Antonio 2002, no pet.). An appellate court can declare a temporary injunction void even if the issue has not been raised by the parties. Id. We conclude the temporary injunction signed by the trial court on March 3, 2005 is void because it fails to include a specific date for trial on the merits. Accordingly, the Court REVERSES the temporary injunction signed March 3, 2005. The Court ORDERS the trial court to enter an order dissolving the temporary injunction signed March 3, 2005.

The petition for writ of mandamus remains pending before the Court. The Court’s order issued March 15, 2005 insofar as its sets a briefing schedule and date for submission for the original proceeding remains in effect. The Court’s order issued March 16, 2005 for notification of the date the ballots will be printed remains in effect.