author: DIANE DeVASTO, Justice.

text:
    In re Jerrad Michael GRASS and Universal Cable Holdings, Inc., Relators, v. The Honorable Joe Bob GOLDEN, Respondent.
    No. 12-04-00151-CV.
    Court of Appeals of Texas, Tyler.
    Dec. 8, 2004.

      Darrell M. Minton, Benckenstein Nor-vell & Nathan, LLP, Beaumont, for relator.

      Joe Bob Golden, Jasper, pro se.
    John H. Seale, for real party of interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

Relators Jerrad Michael Grass and Universal Cable Holdings, Inc. (collectively “Universal”) filed a petition for writ of mandamus complaining of two orders. The first order quashed the deposition of Universal’s designated expert. The second order denied Universal’s motion to compel a physical and mental examination of real party in interest Richard Vrzalik by Universal’s designated expert. For the reasons set forth below, we conditionally grant the writ in part and deny in part.

Background

This discovery dispute arises out of a personal injury action Vrzalik filed against Universal. In response to Vrzalik’s request for disclosure, Universal named Dr. Harris Hauser, a board certified neurologist and psychiatrist, as its. testifying expert. In its description of Hauser’s mental impressions and opinions, Universal stated as follows:

Hauser has not yet formed any mental impressions and opinions, but is expected to conclude that the plaintiffs alleged injuries and conditions for which he sues were the result, in whole or in part, of preexisting conditions, diseases or other events or processes. Dr. Hauser may also testify that the amount and types of treatments received by the plaintiff were unnecessary and unreasonable.

Two weeks later, on February B, 2004, Universal sent Vrzalik a notice of its intention to take Dr. Hauser’s video deposition at Dr. Hauser’s office in Houston on February 11. Vrzalik filed a motion to quash the deposition. The trial court granted the motion by order signed on February 10.

On February 24, Universal filed a motion to compel a physical and mental examination of Vrzalik. The examination was to be performed by Dr. Hauser at his office in Houston on March 11. Vrzalik filed written objections to the examination. By order signed on March 5, the trial court denied Universal’s motion to compel the examination. The order included a finding that “[Universal is] entitled to an independent medical examination by a qualified doctor in Lufkin, Nacogdoches or Tyler, Texas, upon [its request].”

Universal filed a motion for clarification of the March 5 order based upon opposing counsel’s interpretation, communicated by letter, that the trial court “would not allow an examination by Dr. Hauser, because Dr. Hauser had already made his mind up.” At a hearing on March 26, the trial court confirmed that the order did not permit Dr. Hauser to examine Vrzalik even if Dr. Hauser traveled to Lufkin, Nacogdoches, or Tyler to perform the examination. This original proceeding followed.

Universal also filed a motion for emergency relief alleging that the underlying proceeding was second on the trial docket for May 17, 2004. We granted the motion on May 7, 2004 and stayed all trial court proceedings.

Prerequisites to Mandamus

Mandamus is “an extraordinary remedy, available only in limited circumstances.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Mandamus relief is available only if the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000). The relator has the burden of showing both prerequisites to mandamus. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994) (orig.proceeding). This burden is a heavy-one. Id.

An appellate remedy is not inadequate merely because it might involve more expense or delay than obtaining a writ of mandamus. Walker, 827 S.W.2d at 842. Appeal is inadequate for challenging a discovery order when (1) the appellate court would not be able to cure the trial court’s discovery error; (2) the party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error; or (3) the trial court disallows discovery and the missing discovery cannot be made a part of the appellate record or the trial court, after proper request, refuses to make it part of the record. Id. at 843. Mandamus relief is also available where the trial court’s order conflicts with a rule of civil procedure. Wal-Mart Stores, Inc. v. Street, 754 S.W.2d 153, 155 (Tex.1988) (orig.proceeding); In re Rogers, 43 S.W.3d 20, 29 (Tex.App.-Amarillo 2001, orig. proceeding).

Order Quashing Deposition

Universal contends that the trial court’s quashal order is not supported by the record and also violates Texas Rule of Civil Procedure 199.2(b)(2). Vrzalik counters that whether a deposition should be taken is within the sound discretion of the trial court and that the trial court has broad powers to control the time, place, and manner of depositions. Therefore, he concludes, the trial court did not abuse its discretion by quashing Dr. Hauser’s deposition.

Protection from Discovery

A notice for an oral deposition must state a reasonable time and place for the deposition. Tex.R. Civ. P. 199.2(2). The place may be in (1) the county of the witness’s residence; (2) the county where the witness is employed or regularly transacts business in person; (3) the county of suit if the witness is a party or designated as a party representative under Rule 199.2(b)(1); (4) the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a Texas resident or is a transient person; or (5) subject to the foregoing, at any other convenient place directed by the court in which the cause is pending. Id. “Convenience” is determined from the perspective of the witness. In re Western Star Trucks US, Inc., 112 S.W.3d 756, 765 (Tex.App.-Eastland 2003, orig. proceeding) (citing Street, 754 S.W.2d at 155).

A party commanded to appear at a deposition or any other person affected by the subpoena may move for a protective order under Texas Rule of Civil Procedure 192.6(b). Tex.R. Civ. P. 176.6(e). A mov-ant seeking protection regarding the time or place of discovery must state a reasonable time and place for discovery with which it will comply. Tex.R. Civ. P. 192.6(a). To protect the movant, the court may make any order in the interest of justice, including an order that the discovery not be undertaken at the time or place specified. Tex.R. Civ. P. 192.6(b)(3). However, the court’s order may not contravene Rule 192.2. Street, 754 S.W.2d at 155; Western Star Trucks, 112 S.W.3d at 765; Rogers, 43 S.W.3d at 29.

Motion to Quash

To prevail on his motion to quash, Vrzalik was required to show that conducting Dr. Hauser’s deposition in Houston would cause Vrzalik to suffer undue burden, unnecessary expense, harassment, annoyance, or an invasion of his protected rights. See Tex.R. Civ. P. 192.6(b)(3). Vrzalik was also required to show that the location he selected for the deposition was convenient for Dr. Hauser. See Tex.R. Civ. P. 199.2(2)(e); Street, 754 S.W.2d at 155; Western Star Trucks, 112 S.W.3d at 765; Rogers, 43 S.W.3d at 29.

In his motion, Vrzalik complained that Dr. Hauser had never seen him and that Vrzalik’s attorney had never been furnished with a report of any kind from Dr. Hauser. Vrzalik then alleged that “it is unfair and a hardship to force [Vrzalik’s] attorney to drive to Houston to participate in a deposition of a person [1] who is not a witness having any knowledge of [Vrza-lik’s] physical condition, and [2] who plans to testify that treatment and bills are not reasonable or necessary.” Finally, Vrzalik stated that he had no objection to Hauser’s deposition being conducted in either Jasper or Hemphill.

Based upon our review of the materials filed in this proceeding, we conclude that Vrzalik’s allegations are unsupported by the record. It is undisputed that no evidence was adduced at the hearing on the motion to quash and no record was made of the proceeding. Pleadings are not evidence. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995). Consequently, the record contains no evidence showing undue burden, unnecessary expense, or any other circumstance justifying relief under Rule 192.6(b)(3). A trial court abuses its discretion when it limits discovery in the absence of substantiating evidence. See Thompson v. Haberman, 739 S.W.2d 71, 73 (Tex.App.-San Antonio 1987, orig. proceeding). Moreover, the record contains no evidence that any location other than Houston is either expressly authorized by Rule 199.2(2) or convenient for Dr. Hauser. Thus, the trial court’s order conflicts with Rule 199.2(2) and constitutes an abuse of discretion. Therefore, mandamus is available. Street, 754 S.W.2d at 155; Western Star Trucks, 112 S.W.3d at 765; Rogers, 43 S.W.3d at 29.

Order Denying Physical and Mental Examination

After the trial court quashed Dr. Hau-ser’s deposition, Universal filed a motion to compel Vrzalik to submit to a physical and mental examination conducted by Dr. Hauser. Vrzalik objected that Dr. Hauser is not a fair and non-biased witness and that requiring Vrzalik travel to Houston for the medical examination would be unreasonable. Vrzalik did not challenge Universal’s allegations that good cause exists for the examination and that Vrzalik’s physical and mental conditions are in controversy. See Tex.R. Crv. P. 204.1(c)(1).

At the hearing on the motion, the following exchange occurred between Universal’s counsel and the trial court:

Counsel: This is a motion to compel the mental and physical examination of the plaintiff. I have tried to take a deposition of Dr. Harris Hauser, and it was quashed. There was less than three days notice given of the hearing; but it was quashed against my objections, on the basis that the doctor had not examined the patient. I’m trying to remedy that and have been for several months. I’ve moved to allow Dr. Harris Hauser to examine the plaintiff to render a medical opinion.
Court: Is this one of those where he’s going to testify from records or actually hands-on examination?
Counsel: Well, if I’d had the opportunity to take his deposition, it would have been from the records only.

In its mandamus petition, Universal also refers to its preferred method of discovery:

[Universal] noticed Dr. Hauser’s deposition to preserve his opinions and put them in an admissible form that the jury might hear and understand.... As already discussed, Vrzalik and Respondent quashed the deposition, so the information could not be obtained through the less intrusive means of having an expert interpret the medical records and testify regarding his findings.... Thus, the information needed by [Universal] to develop a defense (ie. a clear description of the actual medical and mental condition of Vrzalik) could not be obtained through the less intrusive means of taking Vrzalik’s oral deposition, propounding written interrogatories, obtaining his medical records, or obtaining the testimony of a qualified physician on the subject. Accordingly, Relators have met the final test entitling them to a physical and mental examination of Vrzalik, and Respondent abused his discretion by overruling the motion to compel the examination.

Our disposition of the trial court’s quashal order permits Universal to proceed with its original plan for obtaining the information necessary for the presentation of its defense. Consequently, we do not address the trial court’s order denying Universal’s motion to compel.

Disposition

For the reasons set forth above, we hold the trial court’s order dated February 10, 2004 quashing the oral deposition of Dr. Harris Hauser constitutes an abuse of discretion. Because the order conflicts with Texas Rule of Civil Procedure 192.2, we conditionally grant the writ as to that order. We are confident that, within ten days of this opinion, the trial court will enter an order vacating its February 10 order and denying Vrzalik’s motion to quash Dr. Hauser’s deposition. The writ will issue only if it fails to do so.

We do not address Universal’s challenge to the March 5, 2004 order denying Universal’s motion to compel a physical and mental examination. Accordingly, as to that order, we deny the writ. However, the denial is without prejudice in the event Universal should choose to refile. The stay of May 7, 2004 is lifted.

Writ conditionally granted in part and denied in part without prejudice.

      . Ordinarily, when no statement of facts is filed, an appellate court presumes that the evidence supports the trial court’s ruling on discretionary matters. See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987) (citing Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79 (1955)). Where, as here, no evidence is introduced before and considered by the trial court and then brought forward in the record, no presumptions are to be applied in favor of an order. Simon, 739 S.W.2d at 795.


source: Caselaw Access Project

author: DIXON W. HOLMAN, Justice.

license: Public Domain

text:
    The STATE of Texas, State, v. HALTOM MEDICAL INVESTORS, L.L.C. d/b/a Haltom Convalescent Center, Appellee.
    No. 2-04-013-CV.
    Court of Appeals of Texas, Fort Worth.
    Dec. 9, 2004.

      Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General for Litigation, Paul D. Carmona, Chief, Consumer Protection & Public Health Division, Candace Collins, Assistant Attorney General, Austin, for State.
    Brown & Carls, L.L.P., Tracy L. Hart-ing, Kelly A. McDonald, Austin, for Appel-lee.

      PANEL B: HOLMAN, WALKER, and McCOY, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

The State of Texas, Appellant, appeals from an order granting Appellee Haltom Medical Investors, L.L.C. d/b/a Haltom Convalescent Center’s plea to the jurisdiction and dismissing the State’s case with prejudice. In two issues, the State claims that 1) the trial court erred by failing to recognize that section 2.60(b) of House Bill 2292 is a specific savings clause and incorrectly applied the general savings clause, and 2) the Texas Department of Human Services’ (DHS) assessment of both federal and state civil penalties was made under the prior version of section 242.070 of the health and safety code before the new amendment took effect on September 1, 2003, and the savings clause directly impacts those penalties assessed prior to September 1, 2003. We disagree, and therefore, affirm the trial court’s judgment.

BACKGROUND

DHS is the state agency that regulates nursing facilities by ensuring minimum standards of care regarding health, safety, and comfort of the nursing home residents. There are several ways that DHS regulates these facilities: it requires the facilities obtain a license; conducts inspections, surveys, and investigations of the facilities; and enforces rules and minimum standard regulations. After DHS completes its inspection, a regional enforcement team meets to determine if it believes that a violation has occurred and what penalties, if any, should be recommended. DHS enforces its regulations through administrative penalties, federal civil money penalties, and state civil penalties. It is not the regional team, but DHS state office staff or the Centers for Medicare and Medicaid Services (CMS) that impose the penalties against a facility. If the facility does not agree with the recommendation, it has the right to appeal.

The three types of penalties are assessed differently. Administrative penalties are assessed by the DHS commissioner or the commissioner’s designee only after “the person charged with the violation consents to the administrative penalty recommended by the department, does not timely respond to a notice sent under Subsection (c) or (e), or fails to correct the violation to the department’s satisfaction.” Federal civil money penalties are based on an alleged certification or Medicare/Medicaid violation. The regional enforcement team then makes its recommendation to CMS, which either accepts, rejects, or modifies the recommendation. It is CMS that notifies a nursing facility that a specific penalty has been recommended to be imposed. Haltom contends that only after the nursing facility has either consented to the penalty or all appeal rights have been exhausted can a federal civil money penalty be assessed. Based on an alleged licensure violation, the DHS regional enforcement team can recommend state civil penalties. If the regional director agrees that a state civil penalty should be sought, the nursing facility is notified that DHS is recommending referral to the Attorney General’s Office for imposition of civil penalties.

This case focuses on state civil penalties. In 2002, with residents residing in the facility, Haltom decided to renovate. In July 2002, DHS inspected the facility and found numerous violations. Specifically, the violations included numerous safety system devices that were inadequate such as sprinkler system coverage, fire escape pathways, fire barriers, and exposed construction materials, which posed health and safety hazards for the residents. DHS made a recommendation to CMS that a $3,050 per-day federal civil money penalty be imposed on Haltom for the violations. CMS agreed with the findings and the penalty recommended by DHS. Thereafter, Haltom waived its right to appeal, and CMS sent notification to Haltom of the acceptance of its waiver of appeal rights. The federal civil money penalty in the amount of $28,350 was reduced to $18,427.50 and paid by Haltom. On January 14, 2003 DHS referred this matter to the Office of the Attorney General of Texas (OAG). The letter sent to the OAG stated “Please file suit for civil penalties and any other relief which may be appropriate.” On September 17, 2003 the State of Texas filed suit on behalf of DHS seeking state civil penalties against Haltom under chapter 242 of the Texas Health and Safety Code. Haltom filed a plea to the jurisdiction, which the court granted and the court dismissed the State’s suit with prejudice. Thereafter, the State filed this appeal.

In this case, we are presented with two overriding issues, the proper interpretation of the term “assess” found in section 242.070 of the Texas Health and Safety Code, and whether or not the State “assessed” civil penalties before or after September 1, 2003.

Section 242.070 of the Texas Health and Safety Code

Before we address the issues presented in this case, a brief overview of the pertinent statute is necessary. In 2003, the Texas Legislature amended section 242.070 of the Texas Health and Safety Code by enacting Texas House Bill 2292. Prior to the legislative change, section 242.070 read:

The department may not assess more than one monetary penalty under this chapter for a violation arising out of the same act or failure to act, except as provided by Section 242.0665(c). This section does not prohibit the department from assessing a monetary penalty under this chapter and a monetary penalty under Chapter 32, Human Resources Code, for the same act or failure to act.

After the legislative change, section 242.070 now reads:

The department may not assess more than one monetary penalty under this chapter and Chapter 32, Human Resources Code, for a violation arising out of the same act or failure to act, except as provided by Section 242.0665(c). The department may assess the greater of a monetary penalty under this chapter or a monetary penalty under Chapter 32, Human Resources Code, for the same act or failure to act.

House Bill 2292 contained the above amendment and the following provision: “The change in law made by this section to Section 242.070, Health and Safety Code, applies only to a penalty assessed on or after the effective date of this section.”

Prior to the statutory change, DHS was authorized to assess up to two monetary penalties against a nursing facility that was in violation of the regulations; however, after the amendment DHS can only assess one monetary penalty against a nursing facility for each violation arising out of the same act. The State argues that chapter 242 should be construed broadly to effectuate the protection of all nursing facility residents and that by deviating from basic principles of statutory interpretation, the district court failed to apply the correct version of the statute to this case.

Assessment of Penalties

In its second issué the State contends that DHS assessed state civil penalties against Haltom in July 2002, and the trial court erred by dismissing its suit with prejudice. Statutory construction is a question of law that we review de novo. Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). We are not bound by an agency’s interpretation of a statute that it administers or enforces. See Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 299 (Tex.App.-Austin 2001, no pet.). Our primary goal is to ascertain and effectuate the legislature’s intent. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). When construing a statute, we ascertain the Texas Legislature’s intent from the plain meaning of the actual language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). Additionally, the primary rule in statutory interpretation is that a court must give effect to legislative intent, considering the language of the statute, as well as its legislative history, the objective sought, and the consequences that would flow from alternative constructions. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000) (op. on reh’g).

In our attempt to find the intended meaning of the disputed statutory term, we are mindful that the Code Construction Act erects a presumption that a just and reasonable result was intended; and, the act authorizes us to consider the objective sought to be obtained, former statutory provisions, including laws on the same or similar subjects, and the consequences of a particular construction of the disputed term. The State in this • case argues that “to assess” and “to seek” are equivalent. Because “assess” is not defined by the statute, we look first to its plain meaning beginning with the commonly understood definition. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). If a statute’s meaning is unambiguous, we generally interpret the statute according to its plain meaning. Id. at 865. Words and phrases are to be read in context and given their common-, everyday meaning unless they have acquired a technical or particular meaning. Tex. Gov’t Code Ann. § 311.011 (Vernon 1998). The plain and common dictionary definitions of the term “assess” includes:

1) to determine the rate or amount of (as a tax, charge, or fine)
2a) to determine the amount of and impose (as a tax, charge, or fine) according to an established rate or apportionment 2b) to subject to a tax, charge, or levy so determined
3) to make an official valuation or estimate of
4) to analyze critically and judge definitely the nature, significance, status, or merit of: determine the importance, size, or value of.

The State argues that since DHS determined whether or not to assess penalties and made the recommendation of what penalties to seek before September 1, 2003, it properly assessed the relevant penalties prior to the revised statute’s effective date. The State’s argument finds support under the first definition set out above. However, Haltom points to the definition listed above in 2a and contends that the State did not assess penalties prior to September 1, 2003. In support of its argument, it argues that an example of a penalty being properly assessed against a facility is when DHS gave notice to them on July 12, 2002 of the decision to pursue a penalty and provided them with a definite and determined amount. In contrast to the current issue, Haltom argues that the penalty at issue in this case was not assessed prior to September 1, 2003 and still has not been assessed. Haltom argues that no notice or amount has been given concerning the penalty at issue, and that a penalty that has not, and cannot be calculated is not a penalty that has been assessed against a facility. Therefore, Hal-tom contends that the State does not meet the definition found in 2a above. Furthermore, Haltom points out that suit was not filed by the State until September 17, 2003.

Because both definitions of the word “assess” could apply in the present case it is apparent that the term “assess” is ambiguous as applied to these facts and we cannot conclude the meaning from the section of the statute itself. Therefore, we also consider two additional uses of the term in this case. First, section 242.067(g) of the health and safety code uses “assess” in a chronological context. Tex. Health & Safety Code Ann. § 242.067(g). It states:

If the person charged with the violation consents to the administrative penalty recommended by the department, does not timely respond to a notice sent under Subsection (e) or (e), or fails to correct the violation to the department’s satisfaction, the commissioner or the commissioner’s designee shall assess the administrative penalty recommended by the department.

Id. (emphasis added). Rules of statutory construction regarding a statute relating to the same subject matter are intended to be construed consistently and to operate in harmony. Moses v. Fort Worth Indep. Sch. Dist., 977 S.W.2d 851, 853 (Tex.App.-Fort Worth 1998, no pet.). Unless there is language clearly indicating a contrary intent, words or phrases used in different parts of a statute are presumed to have the same meaning throughout, and where the meaning in one instance is clear, this meaning will be attached in all other instances. S.W. Props., L.P. v. Lite-Dec of Tex., Inc., 989 S.W.2d 69, 71 (Tex.App.-San Antonio 1998, pet. denied).

Second, DHS’ interpretation and application of the term “assess” is found in its annual report to the Texas Legislature. See Texas Department of Human Services, Fiscal Year 2002 Long Term Care Regulatory Annual Report (Feb.2003) at 32. We examine the language in reviewing when and how the agency assesses penalties. The language is as follows:

Penalties assessed are the final actions after the appeal process has been completed (or an agreement to settle has been reached) and a final amount has been decided. The facility is notified of the amount to be paid. There may be a lump sum payment or a monthly payment scheme agreed upon during the appeal or settlement process.

Id. Given our commitment to properly interpret statutory language we cannot read “to assess” to mean the same as “to seek” as argued by the State. Looking at section 242.070’s objectives, a similar provision in the health and safety code, and the interpretation and application of the term by DHS, these factors support the conclusion that the understanding of the term “assess” without more cannot simply mean to determine. The State’s second issue is overruled.

Savings Clause

In its first issue the State argues that the change in law made by section 242.070 applies only to penalties assessed on or after September 1, 2003, and that the trial court erred by incorrectly applying the amended statute because the penalties at issue in this case were assessed prior to September 1, 2008. Furthermore, the State contends that section 2.60(b) of House Bill 2292 is a specific savings clause that acts to save pending matters such as the penalties at issue in this case. Because we hold that DHS did not “assess” state civil penalties prior to September 1, 2003, we need not address whether section 2.60(b) is a specific savings clause.

Conclusion

We affirm the judgment of the trial court.

      . Tex. Health & Safety Code Ann. § 242.002(4) (Vernon 2001), § 242.037 (Vernon Supp. 2004-05); 40 Tex. Admin. Code § 19.2004(a) (2002) (Social Services and Assistance).

      . Tex. Health & Safety Code Ann. ch. 242 (Vernon 2001 & Supp.2004-05).

      . Id. § 242.066 (Vernon 2001).

      . Id. § 242.065 (Vernon Supp.2004-05).

      . 42 C.F.R. §§ 488.330(d)(4), (e).

      . Tex. Health & Safety Code Ann. § 242.067(g) (Vernon 2001).

      . Id. § 242.065(f).

      . Id. § 242.070 (Vernon Supp.2004-05).

      . Act of June 2, 2003, 78th Leg., R.S., ch. 198, § 2.60(a), sec. 242.070, 2003 Tex. Gen. Laws 611, 671 (effective Sept. 1, 2003).

      .Act of May 28, 1997, 75th Leg., R.S., ch. 1159, § 1.18, sec. 242.070, 1997 Tex. Gen. Laws 4363, 4374.

      . Tex. Health & Safety Code Ann. § 242.070.

      . Id.

      . Tex. Gov’t Code Ann. § 311.001 (Vernon 1998).

      . Id. § 311.023.

      . Webster’s Third New International DictioNARY 131 (1981).


author: BRIAN QUINN, Justice.

text:
    Shana JORDAN, Appellant, v. JEFFERSON COUNTY, Appellee.
    No. 07-03-0444-CV.
    Court of Appeals of Texas, Amarillo.
    Dec. 14, 2004.
    Rehearing Overruled Feb. 8, 2005.

      Larry Watts, Watts & Associates, Missouri City, for appellant.
    Larry J. Simmons, Kelli B. Smith, Germer Gertz, L.L.P., Beaumont, for ap-pellee.
    Before QUINN, REAVIS, and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Justice.

Shana Jordan (Jordan) appeals from a summary judgment denying her recovery against Jefferson County (the County). Through five issues, she contends that material questions of fact exist regarding whether 1) she was terminated pursuant to a uniform application of a neutral absence control policy, 2) her whistleblower claim was time barred, 3) she suffered an adverse employment action for purposes of her whistleblower claim, 4) she was denied due process of law because she had a property interest in her continued employment, and 5) she was denied her rights to free speech. We affirm the judgment of the trial court.

Background

Jordan was employed by the County in the office of Brandon Crowder, the Precinct 4 Constable. She and Crowder maintained offices in a double wide trailer with Judge Ray Chesson, Justice of the Peace for Precinct 4, and his staff. The acts underlying her grievance involved Chesson. She complained to others about aspects of his conduct directed towards her beginning in July of 2000. They consisted of angry outbursts, the use of obscenities, and kicking a trash can. On July 23, 2001, the County informed her, by letter, that she was “administratively separated from employment.” The reason given was her exhaustion of “all applicable accrued leave and unpaid leave available.” At the time, Jordan had taken voluntary leave from work due to an incident with Chesson.

Jordan filed suit against the County on January 15, 2002. Through the proceeding, she sought damages for the County’s purported violation of the Texas Whistle-blower Act and a declaration that it had violated various rights given her under article I of the Texas Constitution. Upon joining issue, the County moved for summary judgment upon all her claims. The motion was granted, and the trial court stated in its order that 1) all Jordan’s claims failed because she “was terminated pursuant to the uniform application of a neutral absence control policy” and 2) her whistleblower claim not only was barred by limitations but also lacked merit because “she did not suffer an adverse employment action as a result of making a good faith report of a violation of law to an appropriate law enforcement authority.” Jordan then appealed.

Issue Two — Limitations

We initially address the claim of limitations viz the whistleblower allegation. Jordan contends that she timely filed suit though it was filed more than 90 calendar days after her separation. This is purportedly so because the time during which her grievance remained pending should be deducted from the period of limitations. We overrule the issue.

According to statute, one wishing to pursue a whistleblower claim must file suit no later than 90 days after the date the alleged violation occurred or was discovered through reasonable diligence. Tex. Gov’t Code Ann. § 554.005 (Vernon 2004). However, statute further obligates the employee to comply with any grievance or appeal procedure of the governmental entity relating to the suspension or termination of employment prior to fifing suit. Id. § 554.006(a). Additionally, the employee must not only invoke the “applicable grievance or appeal procedures” within 90 days of the date on which the adverse action occurred or the employee discovered it, id. § 554.006(b), but also the “[t]ime used by the employee in acting under the grievance or appeal procedures” must be excluded from the 90-day limitations period mentioned in § 554.005 of the statute. Id. § 554.006(c).

Here, no one disputes that limitations began to run no later than July 24, 2001, the day Jordan received the letter placing her on administrative separation. Nor is it disputed that suit was filed on January 15, 2002. Counting the number of days between those two dates inescapably leads to the conclusion that Jordan did not sue within 90 days of July 24th. Yet, the record contains evidence of a letter sent by Jordan’s attorney to the local county judge on September 9, 2001. Therein, her counsel notified the judge “that she grieves the substantive due process violations surrounding the denial to her [of] relief from harassment, and ... of leave from harassment.” So too did she request “a due process hearing” and “reinstatement to [a] position of comparable responsibility, salary, in a different precinct, and public apologies .... ” The request for a hearing was denied on December 28, 2001.

In denying the request, the County not only rejected the grievance but also ended the grievance process, according to Jordan. Thus, she continues, the period between September 9th and December 28th must be excluded from the 90-day limitations period. And, if it is, then her suit was timely, she concludes.

The flaw in Jordan’s argument involves the presence of a grievance procedure. Implicit in the duty to comply with “applicable” grievance policies concerning the suspension or termination of employment is the need for the existence of an applicable policy. Indeed, one can hardly be required to exhaust administrative remedies without the existence of an administrative remedy. Similar logic also requires one to conclude that the limitations period can hardly be extended through compliance with an established grievance procedure if no such procedure exists. Admittedly, the County had a grievance policy. Yet, expressly excluded from its scope were “Administrative Separations.” Given this, the policy could not serve as a means of extending the limitations period since it was inapplicable to Jordan’s circumstance.

Nonetheless, Jordan contends that because an elected official may choose to participate or not participate in the policy and nothing illustrated that Crowder (the elected official for whom she worked) chose to participate in it, her September 9th letter tolled limitations. Assuming ar-guendo that this argument was made below and also assuming that her supervisor had not opted to comply with the policy, there still remains a dearth of evidence indicating that some other grievance procedure applied to her circumstance. Indeed, she informs us of none. Without an applicable procedure with which she had to comply, there was nothing to stop the 90-day period from running. So, we must conclude that there existed no material issue of fact regarding the expiration of the 90-day limitations period. In other words, the County established, as a matter of law, that limitations barred Jordan from pursuing her whistleblower claim.

Issues One and Three — Uniform Application of Absence Policy and Adverse Employment Action

Issues one and three involve other grounds alleged by the County (in its motion for summary judgment) to defeat Jordan’s whistleblower allegation. It contended that her removal from the County’s payroll occurred pursuant to the uniform application of its absence policy and that she suffered no adverse employment action. Because we hold the trial court did not err in rejecting the whistleblower claim on the basis of limitations, we need not determine whether other grounds (such as those addressed in issues one and three) also supported its decision viz that particular cause of action. Thus, issues one and three are also overruled.

Issue Four — Denial of Due Process

Jordan asserts, in her fourth issue, that she had a constitutionally protected property interest in continued employment with the County. Though her employment was “at will” per the County’s policies, this status was allegedly modified by the policy regarding an employee’s removal from the payroll once he exhausts all his leave. So too does she posit that her constitutionally protected liberty interests in being free from 1) retaliation for having reported Chesson to the Texas Judicial Conduct Commission and 2) the threatening behavior and verbal abuse of Chesson were denied her “without substantive and procedural due process.” We overrule the issue.

Property Interest in Continued Employment

To have a property interest in public employment, one must prove that he had a legitimate claim of entitlement to, as opposed to, a unilateral expectation in the job. Texas A & M University System v. Luxemburg, 93 S.W.3d 410, 422 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); McCartney v. May, 50 S.W.3d 599, 607 (Tex.App.-Amarillo 2001, no pet.). Yet, in Texas, continued employment generally depends upon the will of the employer. That is, unless a specific agreement to the contrary dictates otherwise, an employee can be released for good reason, bad reason, or no reason. Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998); Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex.1993). So, it follows that to the extent the “at will” relationship can be altered by an employment manual, the manual must contain language that specifically and expressly limits the employer’s right to terminate the employee. Trostle v. Combs, 104 S.W.3d 206, 211 (Tex.App.Austin 2003, no pet.). Moreover, if there appears in the manual a disclaimer evincing that the “at will” employment relationship remains unaffected by anything else in the manual, the disclaimer negates any implication that the employment relationship is something other than at the will of the employer. Federal Express Corp. v. Dutschmann, 846 S.W.2d at 283 (holding that the employee had no legitimate expectation in continued employment because the employment manual contained a provision stating that nothing in the document created any contractual rights “regarding termination or otherwise”).

Here, the County’s policies included one declaring that “[n]othing herein shall be construed as creating a contractual right to employment or altering the common-law right of the County to terminate the employment of any County employee.” Following it appears the statement that “[e]mployment shall be at will, so that the employment relationship may be terminated at the will of such person or at the will of the County at any time.” Furthermore, the County’s employee handbook also said:

Your employment with Jefferson County is “at-will” and entered into voluntarily. You are free to resign at any time, for any reason, with or without notice. Similarly, the County is free to terminate the employment relationship at any time.

This verbiage is nothing short of the disclaimer contemplated in Federal Express. It clearly reveals an intent to maintain the “at will” employment relationship between the County and its employées, irrespective of any other County employment policy. Thus, the suggestion by Jordan that the administrative separation policy altered the “at will” employment relationship and somehow vested her with an interest in continued employment was negated, as a matter of law.

Nor do we find meritorious Jordan’s contention that a right to continued employment arose when she was granted permission (by the constable) to take a leave of absence, despite having previously exhausted all her accrued leave. This is so because the County’s policies also dictated that “[n]o person acting for or purporting to act for the County has authority to vary the employment at will relationship ..., nor ... make an oral or written agreement for permanent employment or employment for any specified period of time, except by specific Order entered in the minutes of the Commissioners’ Court.” We are cited to no evidence of record suggesting that the leave granted by the constable was incorporated into such an order. Thus, we cannot hold that his words created a material issue of fact regarding the modification of Jordan’s status as an “at will” employee.

Liberty Interests

With respect to her purported liberty to be free from retaliation for having reported Chesson to the Texas Judicial Conduct Commission and from threatening behavior and verbal abuse from Chesson, Jordan failed to expressly mention them below as grounds to defeat summary judgment. Because she so failed, they cannot now be used to secure a reversal of the judgment. McConnell v. Southside I.S.D., 858 S.W.2d 337, 341 (Tex.1993).

Issue Five — Free Speech Rights

In her . final issue, Jordan claims her free speech rights were violated due to her termination for reporting Chesson to the Judicial Conduct Commission and the Human Resources Department. We overrule the issue.

Initially, we note that Jordan cited no legal authority in support of her issue, contrary to Texas Rule of Appellate Procedure 38.1(h). While it may be that our Supreme Court requires courts of appeal to construe the rules of appellate procedure “reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule,” Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004), we know of no authority obligating us to become advocates for a particular litigant through performing their research and developing their argument for them. Indeed, the law and canons of ethics require that we remain neutral. Such impartiality cannot be maintained if appellate courts must sua sponte wave the banner dropped by the litigant, especially when the litigant has his own legal counsel. Given this and Jordan’s non-compliance with Rule 38.1(h), the issue was waived due to inadequate briefing. Baker v. Gregg County, 33 S.W.3d 72, 79 (Tex.App.-Texarkana 2000, no pet.).

Yet, assuming arguendo that the argument contained appropriate citation to authority and was, therefore, adequately briefed, we would remain obligated to overrule it. This is so because the speech purportedly uttered by Jordan must involve matters of legitimate public, as opposed to private, concern. In re Davis, 82 S.W.3d 140, 149 (Tex.Spec.Ct.Rev.2002); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.). However, it has been held that dis putes in the workplace, such as complaints of harassment for informing officials about another’s conduct, Haynes v. City of Beaumont, 35 S.W.3d at 178-79, or physical confrontations between individuals at the workplace, Brown v. University of Texas Health Center, 957 S.W.2d 911, 918 (Tex.App.-Tyler 1997, no pet.), generally implicate private interests.

Here, Jordan’s complaints to the Judicial Conduct Commission and Human Resources Department liken to those involved in Haynes and Brown. They arise from her treatment by Chesson in the workplace and her attempt to have him sanctioned for it. Given this, we cannot say that the trial court erred when it rejected her claim that the County retaliated against her for exercising rights of free speech.

Having overruled each issue, we affirm the judgment.

      . According to County policy, an "administrative separation” consisted of an employee being "removed from the County’s payroll after having exhausted all earned and/or authorized time off from work....”


author: Justice WHITTINGTON.

text:
    A&J PRINTING, INC., Appellant, v. DSP ENTERPRISES, L.L.C. d/b/a Train Paper Company, Appellee.
    No. 05-04-00398-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 22, 2004.
    Rehearing Overruled Feb. 2, 2005.

      Timothy J. Gargiulo, H.N. Cunningham, III, Roberts, Cunningham & Stripling, LLP, Dallas, for Appellant.
    Michael A. Miller, Clark S. Butler, Brandie M. Koch, Miller & McCarthy, P.C., Dallas, for Appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice WHITTINGTON.

A&J Printing, Inc. appeals the trial judge’s order overruling its special appearance. In four issues, A&J challenges the jurisdiction of the trial court to enter the order and argues the special appearance should have been granted. Because the order denying the special appearance was entered when the trial court had plenary power, we overrule A&J’s challenge to the authority of the court to enter the order. Nevertheless, we reverse the trial court’s order denying the special appearance because A&J has no minimum contacts with Texas.

BACKGROUND

Because A&J questions the trial court’s authority to enter the order denying A&J’s special appearance, we must review the procedural history of the case before reviewing the merits of A&J’s special appearance. DSP filed suit on a sworn account on June 13, 2003. A&J filed its special appearance, which was heard on November 18, 2003. No written order on the special appearance was entered at that time. On November 24, 2003, the case was dismissed for want of prosecution. On January 26, 2004, DSP filed a motion to reinstate the case, alleging it did not receive notice of the dismissal order until January 23, 2004. On February 19, 2004, the trial judge held a hearing on the motion to reinstate. On February 23, 2004, the trial judge entered a written order denying the special appearance. The case was not reinstated by written order until April 5, 2004, after this appeal had been filed.

Regarding the merits of the special appearance, there is no indication that either party introduced evidence at the hearing; DSP apparently relied on its verified petition, a suit on sworn account, to establish A&J had minimum contacts with Texas. In its petition, DSP alleged A&J “has sufficient contacts with Texas that, under the Texas Long Arm Statute, it can be served with process by serving the Texas Secretary of State.” DSP further alleged A&J “has done business in Texas.” DSP also alleged in its petition that A&J is a Missouri corporation and does not maintain a regular place of business or registered agent in Texas. The affidavit supporting the petition states, “Defendant ordered the items and/or services in the quantity and price stated on the attached account. Plaintiff delivered the goods and/or rendered services to Defendant. Defendant promised to pay the amount shown due on the account but failed to make payment.” The invoices attached to the affidavit show DSP’s address in Dallas. However, the “bill to” and “ship to” addresses are to A&J in Missouri, and the remittance address for payment is in Illinois. A&J did not file a verified denial in response to DSP’s petition.

A&J filed a verified special appearance denying it had minimum contacts with Texas and an affidavit of its president detailing facts supporting A&J’s lack of contacts with Texas. The affidavit provides (i) A&J was organized in and has its principal place of business in Missouri, (ii) it has no contacts with Texas, (iii) it does not have a registered agent in Texas and is not required to have one, (iv) it does not engage in business in Texas, (v) it has no bank accounts in Texas, (vi) it does not own or lease any real or personal property in Texas, (vii) no employee, representative or agent of A&J has traveled to Texas on behalf of A&J, (viii) and A&J has no employees, representatives, or agents in Texas. DSP did not respond to A&J’s special appearance.

Trial Court’s JurisdictioN

A&J first contends the trial court had no jurisdiction to enter the order denying A&J’s special appearance because the order was entered at a time when the case had been dismissed and had not yet been reinstated. The trial judge dismissed the case for want of prosecution on November 24, 2003. DSP filed its motion to reinstate the case on January 26, 2004. The parties agree DSP established by proper proof it did not receive notice of the order dismissing the case until January 23, 2004. (The written order reinstating the case recites January 24 as the date of notice, but all of DSP’s proof was for notice on January 23). Because of this proof, the deadlines and plenary power periods all run from January 23, 2004. See Tex.R. Crv. P. 306a.4 (when party establishes it received notice more than twenty, but less than ninety, days after order of dismissal entered, post-judgment deadlines run from date party or attorney received notice or actual knowledge of signing of order); Tex.R. Civ. P. 165a.3 (motion to reinstate may be filed within period provided by rule 306a); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 540 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (based on prima facie showing notice of judgment received late, trial court’s plenary power recommenced on date of notice).

Although the trial judge’s reinstatement of the case by docket entry on February 19, 2004 did not suffice to reinstate the case, the April 5, 2004 reinstatement by written order was within the period of the trial court’s plenary power. See Emerald Oaks Hotel Conf. Center, Inc. v. Zardenetta, 776 S.W.2d 577, 578 (Tex.1989) (trial court’s oral pronouncement and docket entry reinstating a case not acceptable substitute for written order; where timely motion to reinstate filed, trial court retains plenary power for 105 days under rule 165a(3)). Although the case had not been reinstated by February 23, 2004, when the trial court entered the written order denying A&J’s special appearance, the special appearance order was made within the plenary power period provided for in rule 165a(3). See Emerald Oaks, 776 S.W.2d at 578; Tex.R. Civ. P. 165a(3).

The order denying the special appearance was entered during the trial court’s period of plenary power. A&J does not cite any authority for the proposition that an order entered during the court’s plenary power period is void if made after a judgment of dismissal but before the case is properly and timely reinstated. In the two cases A&J cites, the plenary power period had long since run when the trial judge attempted to enter orders sealing the court’s records. See Ashpole v. Millard, 778 S.W.2d 169, 170-71 (Tex.App.Houston [1st Dist.] 1989, no writ) (twelve years after suit dismissed by agreed order, court granted motion to seal record); P.I.A. of Fort Worth, Inc. v. Sullivan, 837 S.W.2d 844, 846 (Tex.App.-Fort Worth 1992, no writ) (trial judge’s order to seal records was not made while trial court had plenary power). A&J cites language in Ashpole that “no further action may be had” in a case after dismissal. See Ashpole, 778 S.W.2d at 171. The language, however, refers to “voluntary” dismissal, and the next sentence in the opinion states, “Any further action must be taken by instituting a suit de novo, unless there is a successful motion to reinstate.” Ashpole, 778 S.W.2d at 171 (emphasis added). Here, the motion to reinstate had already been filed when the trial judge entered the order denying A&J’s special appearance, and it was ultimately “successful,” that is, granted in writing within the trial court’s plenary power period. Therefore, Ashpole and P.I.A. are not controlling.

We have recognized that a trial judge may enter orders during the plenary power period. See, e.g., Boyd v. Gillman Film Corp., 447 S.W.2d 759, 761 (Tex.Civ.App.-Dallas 1969, writ ref'd n.r.e.) (“Thus during the period of thirty days after the rendition of judgment ... the trial judge retains plenary power and jurisdiction to take whatever action he may deem desirable to change, alter or modify the judgment rendered.”); see also Thompson v. Gibbs, 504 S.W.2d 630, 632 (Tex.Civ.App.-Dallas 1973, orig. proceeding) (trial judge could set aside original judgment and grant new trial during plenary power period after overruling of motion for new trial by operation of law); Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701, 704 (Tex.1962) (case is still “pending” in trial court as long as judgment rendered in it remains subject to attack by motion for new trial or subject to judicial vacation or modification by the trial court under rule 329b). We hold the trial court had jurisdiction to enter the order denying A&J’s special appearance. We overrule A&J’s first issue.

SPECIAL APPEARANCE

In its second, third, and fourth issues, A&J argues it did not have minimum contacts with Texas, DSP’s cause of action did not arise out of any alleged contacts with Texas, and it would be a violation of due process and substantial justice for this matter to be tried in Texas. We agree.

The standard for reviewing a trial judge’s order denying a special appearance was set forth in BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 793-94 (Tex.2002). We review the trial court’s factual findings for legal and factual sufficiency and review the trial court’s legal conclusions de novo. BMC Software, 83 S.W.3d at 794. When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, we imply all facts necessary to support the judgment and supported by the evidence. BMC Software, 83 S.W.3d at 795.

Texas courts may assert personal jurisdiction over a nonresident defendant only if the Texas long-arm statute authorizes jurisdiction and the exercise of jurisdiction is consistent with federal and state due process standards. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003) (setting forth due process standards); see also Tex. Civ. PRAC. & Rem.Code Ann. § 17.041-45 (Vernon 1997 and Supp.2004-05) (long-arm jurisdiction in suit on business transaction or tort). Jurisdiction is proper if the nonresident defendant established “minimum contacts” with Texas and maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Am. Type, 83 S.W.3d at 806 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The purpose of the minimum contacts analysis is to protect the defendant from being haled into court when its relationship with Texas is too attenuated to support jurisdiction. Am. Type, 83 S.W.3d at 806. Accordingly, we focus upon the defendant’s activities and expectations and determine whether the defendant “purposefully availed” itself of the privilege of conducting activities in Texas, thus invoking the protections and benefits of our laws. Am. Type, 83 S.W.3d at 806 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). It is the quality and nature of the defendant’s contacts, rather than their number, that is important in the minimum contacts analysis. Am. Type, 83 S.W.3d at 806.

A defendant’s contacts with a forum may give rise to either specific or general jurisdiction. Am. Type, 83 S.W.3d at 806. DSP argues there is specific jurisdiction here. Two requirements must be met before a court may exercise specific jurisdiction over a nonresident defendant. First, the defendant’s contacts with the forum must be purposeful, and second, the cause of action must arise from or relate to those contacts. Am. Type, 83 S.W.3d at 806. DSP bore the initial burden of establishing A&J’s contacts with Texas. See Am. Type, 83 S.W.3d at 807. Upon filing a special appearance, A&J assumed the burden to negate all the bases of personal jurisdiction alleged by DSP. See Am. Type, 83 S.W.3d at 807.

DSP has not alleged any requisite minimum contacts between A&J and Texas other than its statement in its petition that A&J does business in Texas. DSP did not offer evidence that A&J has contacts with Texas. DSP argues its verified petition for its suit on account is sufficient to establish A&J’s contacts because A&J did not file a sworn denial and therefore has admitted all facts pleaded. See Tex.R. Crv. P. 185 (petition supported by affidavit that claim is just and true, due, and all just and lawful offsets, payments, and credits have been allowed is “prima facie evidence thereof’ unless party resisting claim files written denial under oath; without written denial under oath defendant may not deny “the claim, or any item therein”). Establishing the claim on the account, however, is not proof the account arose out of contacts with Texas. DSP’s allegations are that A&J failed to pay for goods delivered, but there is no evidence A&J took any action in Texas in connection with that failure. See, e.g., Biotrace Int’l, Inc. v. Wilwerding, 937 S.W.2d 146, 147 (Tex.App.-Houston [1st Dist.] 1997, no writ) (allegation in petition that defendants made promise supported finding of purposeful action, but did not establish defendants made promise while in Texas; therefore, allegations in petition were insufficient to confer personal jurisdiction).

Further, the trial judge was not precluded from considering the evidence set forth in A&J’s verified special appearance even though A&J did not file a sworn denial of DSP’s suit on account. See Rizk v. Fin. Guardian Ins. Agency, Inc., 584 S.W.2d 860, 863 (Tex.1979) (court notes affirmative defenses could be raised by defendant in sworn account action even in absence of verified denial under Rule 185). As the court noted in Rizk, “Rule 185 is not a rule of substantive law but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery. In the absence of a sworn denial meeting the requirements of the rule, the account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges although he may defend on other grounds.” Rizk, 584 S.W.2d at 862 (citations omitted)(emphasis added). Although A&J may not dispute the correctness of the stated charges without a verified answer, it may challenge the court’s jurisdiction by a special appearance. Courts have reviewed challenges to personal jurisdiction even where a plaintiff has obtained a default judgment in a suit on sworn account. See, e.g., Seeley v. KCI USA, Inc., 100 S.W.3d 276, 278-80 (Tex.App.-San Antonio 2002, no pet.) (no-answer default judgment in suit on sworn account reversed and remanded where no personal jurisdiction over nonresident defendant).

In its verified special appearance, A&J set forth facts regarding its lack of contacts with Texas. DSP did not offer evidence to refute these facts or offer further evidence of A&J’s purposeful contacts with Texas in its dealings with DSP. There is no allegation or evidence of any written contract between A&J and DSP. While DSP’s invoices and affidavit are prima fa-cie evidence A&J failed to pay the account, there is no connection between the invoices and Texas other than DSP’s address. Without evidence of A&J’s purposeful contacts with Texas, the trial court could not exercise specific personal jurisdiction over A&J. See, e.g., Biotrace Int’l, 937 S.W.2d at 147. We sustain A&J’s second, third, and fourth issues.

We reverse the trial court s judgment and remand this cause for further proceedings.


author: Justice MORRIS.

text:
    Richard SIMPSON, Appellant, v. WOODBRIDGE PROPERTIES, L.L.C., Appellee.
    No. 05-03-01742-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 29, 2004.
    Rehearing Overruled Feb. 4, 2005.

      R. Spencer Shytles, Rick J.W. Graham, Graham, Bright & Smith, P.C., Dallas, for Appellant.
    Joseph J. Mastrogiovanni, Jr., Mastro-giovanni & Schorsch, P.C., Jeffrey S. Lev-inger, Carrington Coleman, Sloman & Blu-menthal, Dallas, for Appellee.
    Before Justices MORRIS, MOSELEY, and FITZGERALD.
   OPINION

Opinion by

Justice MORRIS.

This is an appeal from a take-nothing summary judgment against Richard Simpson in favor of Woodbridge Properties, L.L.C. The parties’ dispute arose after their real estate purchase agreement expired and Woodbridge refused to sell Simpson the land he had originally contracted to buy. In eight issues, Simpson generally argues the trial court erred in granting summary judgment on the grounds presented in Woodbridge’s motion. For the reasons that follow, we affirm the trial court’s judgment.

Woodbridge owns a residential development in Collin County. Simpson desired to purchase a site in Woodbridge’s development to build a day care center. After negotiations, Simpson and Woodbridge entered into a real estate purchase agreement. The agreement contained a merger clause providing that it was the entire agreement between the parties and further stated, “The Parties shall not be bound by any stipulations, representations, agreements or promises, oral or otherwise not printed or inserted in written form in the Agreement.” The agreement also provided Simpson with a thirty-day feasibility period to inspect and test the property. According to the contract, Simpson had ninety days to obtain necessary development approvals. The contract further provided that the closing was to occur on a date established by Simpson no later than thirty days after the development approval deadline. The closing was not completed by the contractual deadline and Wood-bridge refused to go forward with the transaction arguing the contract expired by its own terms. Simpson thereafter filed this lawsuit asserting causes of action for fraud, negligent misrepresentation, and violations of the Texas Deceptive Trade Practices Act.

In his petition, Simpson alleged that Woodbridge made material misrepresentations and omissions about the property and never indicated “any problem or time deadlines had or were soon to pass.” Simpson sought to recover, among other things, the amount he expended on the property for contractors and tests. Wood-bridge moved for summary judgment on all of Simpson’s claims asserting both traditional and no-evidence grounds. The trial court granted Woodbridge summary judgment without specifying the grounds on which its ruling was based. Simpson timely appealed.

We conduct a de novo review of a trial court’s summary judgment. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet denied). For its traditional summary judgment motion, Woodbridge had the burden to show no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). With respect to the no-evidence summary judgment, Simpson had the burden to present sufficient evidence to raise a genuine issue of fact on the challenged elements of his claims. See Gen. Mills Rest, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.).

Among other things, Woodbridge moved for summary judgment on the ground that the contract provision disclaiming reliance on any representations outside the parties’ contract negated the reliance element essential to each of Simpson’s causes of action. We agree.

A successful claim under the DTPA requires the claimant to prove it detrimentally relied on a false, misleading or deceptive act or practice. Tex. Bus. & Com.Code Ann. § 17.50(a)(1)(B) (Vernon 2002). Likewise, causes of action for fraud and negligent misrepresentation also require proof of reliance. See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 929-30 (Tex.1996) (fraud); Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (negligent misrepresentation).

Our review of the record reveals the essence of Simpson’s claims focus on Woodbridge’s failure to proceed with the sale even though the contractual closing deadline had expired. Simpson complains that he spent substantial sums on site testing and development pursuant to the contract in reliance on Woodbridge’s feigned willingness to proceed with the project and assurances that the sale would timely close. He suggests that Wood-bridge secretly hoped the sale would not proceed after it discovered Simpson’s day care center’s location would interfere with Woodbridge’s ability to place restaurants and private clubs on their designated tracts in the development. In his brief, Simpson identifies the following alleged misrepresentations to support his claims: (1) Woodbridge told him everything was okay with the development of the property; (2) Woodbridge “in so many words” told him not to concern himself with the agreement deadlines; (3) Woodbridge guaranteed Simpson that everything he needed to make complete his feasibility study and development plan would be done in a timely manner so there would be no problem closing by the deadline; and (4) Woodbridge told Simpson “we would be able to close in a timely manner.”

As noted above, however, Simpson contractually agreed not to rely on any representations made outside of the contract. Moreover, the parties’ contract specified a precise deadline for the closing date. Consequently, the parties’ contract vitiated any reliance Simpson may have placed on vague references attributable to Wood-bridge with respect to its willingness to complete the sale irrespective of the deadlines specifically set forth in the contract. See C & A Inv., Inc. v. Bonnet Res. Corp., 959 S.W.2d 258, 263 (Tex.App.-Dallas 1997, writ denied). Because the summary judgment evidence conclusively negates the reliance element essential for all of Simpson’s claims, the trial court did not err by granting Woodbridge’s motion for summary judgment. Our disposition of this issue makes it unnecessary to address Simpson’s remaining issues.

We affirm the trial court’s judgment.


author: TOM GRAY, Chief Justice.

text:
    Ronald Eddie DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00270-CR.
    Court of Appeals of Texas, Waco.
    Jan. 5, 2005.
    Ronald Eddie Duncan, Conroe, pro se.
    Michael A. McDougal, Montgomery County Dist. Atty., Conroe, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   ORDER

TOM GRAY, Chief Justice.

Duncan sent to this Court a document entitled Certificate of Service which was received by this Court on December 1, 2004. The full typewritten text of the document, other than the referenced attachments, is as follows:

Just above “All God Given Rights Reserved” it is manually dated November 27, 2004 and signed on the line below. It also has a handwritten request at the bottom of the page to return a file stamped copy. All blanks other than the signature of Duncan remain blank.

We are unable to determine what Duncan seeks to accomplish in this appeal by way of this document. Though labeled a “Certificate of Service,” it is not, because it does not purport to have been delivered to any person or entity other than this Court, though apparently some of the individual referenced attachments may have been served. See Tex.R.App. P. 9.5(a).

The Clerk of this Court is ordered to NOT file this document but to retain it in the court’s correspondence file. Further documents from Duncan of this nature should likewise be placed in the correspondence file and neither acknowledged nor acted upon.

Duncan is hereby cautioned to file with this Court only those documents necessary to the disposition of his appeal in compliance with the Texas Rules of Appellate Procedure. A full copy of each document filed must be served on each party to the litigation or their attorney of record and there must be proof of service attached to each separate document. Tex.R.App. P. 9.5.

This appeal has become unnecessarily complicated by Duncan’s failure or refusal to comply with the procedural rules regulating the appeal of his conviction. Such gross failure to comply with the rules may result in a conclusion that his appeal lacks merit and is being pursued as an abuse of the judicial process. Such a determination will result in the dismissal of his appeal for abuse of the judicial process under our inherent authority. See Peralta v. State, 82 S.W.3d 724, 725 (Tex.App.-Waco 2002, no pet.).


author: JAMES T. WORTHEN, Chief Justice.

text:
    In re Dr. Robert GRUEBEL.
    No. 12-04-00388-CV.
    Court of Appeals of Texas, Tyler.
    Jan. 12, 2005.

      Clayton E. Dark, Jr., Law Office of Clayton E. Dark, Jr., Lufkin, Darrin Walker, Law Office of Darrin Walker, King-wood, for relator.
    Robert L. Flournoy, Flournoy & Dea-ton, LLP, Lufkin, for respondent.
    Rob Atherton, Thomas L. Belanger, Be-langer, Atherton & Lostracco P.C., Nacog-doches, for real party of interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Relator, Dr. Robert Gruebel, seeks a writ of injunction enjoining the City of Nacogdoches from issuing a demolition permit and enjoining Commercial Bank of Texas, N.A. from demolishing a building that is the subject matter of a pending appeal. For the reasons set forth below, we deny the writ.

Background

Dr. Gruebel has two appeals pending in this Court. The first is Cause Number 12-04-00176-CV, styled Dr. Robert Gruebel v. The City of Nacogdoches and Commercial Bank of Texas, N.A. (Gruebel I). Gruebel I is an appeal from a declaratory judgment signed in the 145th District Court of Nacogdoches County, Texas in Cause Number C19,868-2003. The second appeal is Cause No. 12-04-00331-CV, styled Dr. Robert Gruebel v. Zoning Board of Adjustment of the City of Nacogdoches, Texas, consisting of Paul Smith, U.L. Woodson, Jeff Opperman, Kelly Jones, and Richard Humphreys; City of Nacogdoches, Texas; and Aron Kulhavy, City Planner for the City of Nacogdoches, Texas (Gruebel II). Gruebel II is an appeal from a final judgment signed in the County Court at Law of Nacogdoches- County, Texas in Cause Number 10651. That case was filed in the County Court at Law as an appeal by petition for writ of certiorari from a final decision of the Zoning Board of Adjustment of the City of Nacogdoches (the City).

The central issue in both appeals is the interpretation of Article XI of the City’s zoning ordinance, which relates to historic preservation. Specifically, the issue is whether a certificate of appropriateness from the Nacogdoches Historic Landmark Preservation Committee is required prior to demolition of a building located within the Historic Overlay of the City. In the two cases, Commercial Bank sought permits to demolish a total of three historic buildings and obtained a permit to demolish two of the buildings. In each case, the trial court held that a certificate of appropriateness was not required prior to demolition. Commercial has demolished the building involved in Gruebel I and one of the two buildings involved in Gruebel II. Moreover, on November 2, 2004, the City amended the subject zoning ordinance to provide that a certificate of appropriateness is not required to demolish a designated historic landmark. The amendment was passed after both appeals were filed in this Court.

Dr. Gruebel filed this original proceeding seeking a writ of injunction to prevent the demolition of the last building pending the outcome of his appeals. He urges that the writ is necessary to protect this Court’s, jurisdiction over the subject matter of the pending appeals. Dr. Gruebel also filed a motion for emergency relief, which we denied. •

Jurisdiction

A court of appeals is authorized to issue all writs necessary to enforce its jurisdiction. Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004). If an appeal pending before this Court becomes moot, we lose jurisdiction over it. See Valley Baptist Med. Ctr. v. Gonzalez, 38 S.W.3d 821, 822 (Tex.2000). Consequently, we may issue a writ of injunction to preserve the subject matter of a case pending appeal and to prevent the appeal from becoming moot. EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426 (Tex.App.-Fort Worth 1987, orig. proceeding); Becker v. Becker, 639 S.W.2d 23, 24 (Tex.App.-Houston [1st Dist.] 1982, orig. proceeding). However, we are without jurisdiction to issue a writ of injunction merely for the purpose of preserving the status quo or to prevent loss or damage to one of the parties during the appeal. EMW, 724 S.W.2d at 426; Becker, 639 S.W.2d at 24; Pace v. McEwen, 604 S.W.2d 231, 233 (Tex.Civ.App.-San Antonio 1980, no writ).

Mootness

A case becomes moot when it does not rest, or ceases to rest, on any existing right or fact. Shelby Operating Co. v. City of Waskom, 964 S.W.2d 75, 81 (Tex.App.-Texarkana 1997, writ denied). Several corollaries of this rule are that (1) a case is not moot if some issue is still in controversy; (2) a case becomes moot if it is impossible for the court to grant effectu al relief for any reason; and (3) a case can become moot by reason of new legislation or acts that supersede existing legislation. James v. City of Round Rock, 630 S.W.2d 466, 468 (Tex.App.-Austin 1982, no writ) (citing Swank v. Sharp, 358 S.W.2d 950 (Tex.Civ.App.-Dallas 1962, no writ) and Gordon v. Lake, 163 Tex. 392, 356 S.W.2d 138 (1962)); see also State v. Gibson Prods. Co., 699 S.W.2d 640, 641 (Tex.App.-Waco 1985, no writ).

Dr. Gruebel contends that if the last building is demolished and he prevails on the merits in his appeals, our judgment would have no practical effect on a then-existing controversy. In other words, he concludes that any relief we granted would be ineffectual. We agree. However, that is not the end of the matter. Zoning ordinances are considered legislative enactments. James, 630 S.W.2d at 468. Therefore, we must consider a second question: the effect of the November 2 amendment to Article XI.

Prior to its amendment, Article XI provided, in pertinent part, as follows:

No person shall carry out any exterior reconstruction, alteration, restoration, rehabilitation, or relocation of any historic landmark or any new construction on property within a historic district. Nor shall any person make any material change in the light fixtures, signs, sidewalks, fences, steps, paving or other exterior elements visible from a public right-of-way which affect the appearance and cohesiveness of the historic landmark or any property within a historic district without first obtaining a certificate of appropriateness from the [Nac-ogdoches Historic Landmark Preservation] Committee.

The November 2 amendment added the following paragraph:

A certificate of appropriateness is not required to remove, relocate, or demolish a designated historic landmark. Any person wishing to remove, relocate, or demolish a designated historic landmark or structure should refer to Division 6.

Consequently, whether a certificate of appropriateness is required prior to the demolition of an historic landmark is no longer an open question.

Article I, section 16 of the Texas Constitution states that “[n]o bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts shall be made.” Tex. Const, art. I, § 16 (emphasis added). A law may be applied retroactively, however, and not be constitutionally prohibited. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex.2002).

It is well settled that “laws may not operate retroactively to deprive or impair vested substantive rights acquired under existing laws, or create new obligations, impose new duties, or adopt new disabilities in respect to transactions or considerations past.” Ex parte Abell, 613 S.W.2d 255, 260 (Tex.1981) (orig. proceeding). On the other hand, no litigant has a vested right in a statute or rule that is remedial or procedural in nature and affects no vested substantive right. Subaru, 84 S.W.3d at 219; Abell, 613 S.W.2d at 260. Changes in such statutes or rules are considered remedial in nature and have been held not to violate the provisions of Article I, section 16 of the Texas Constitution. Id. This is because procedural and remedial statutes typically do not affect a vested right. Subaru, 84 S.W.3d at 219. If a statute is remedial or procedural in nature, it controls all affected proceedings from the date it becomes law. County of Tarrant v. Coyel, 124 S.W.3d 268, 271 (Tex.App.-Fort Worth 2003, writ denied).

The record before us reveals that Dr. Gruebel owns several properties in the Historic Overlay. In his petition for writ of certiorari, he alleged that he “is a resident, citizen, and taxpayer of the City of Nacogdoches who is aggrieved by a decision of the City Planner and the Zoning Board of Adjustment of the City of Nacog-doches, Texas.” He further averred that he “desires to prevent the demolition of [the] two historic buildings” described in the petition. However, we see nothing in the record from which we can conclude that the application of the amended ordinance to Dr. Gruebel would impair a vested substantive right. As such, we also cannot conclude that Dr. Gruebel’s appeals did not become moot upon the passage of the amendment. Therefore, we hold that Dr. Gruebel has not shown himself entitled to the relief he requested. Accordingly, the petition for writ of injunction is denied.

      . Dr. Gruebel asserts that although the property that is the subject of Gruebel I has been demolished, Gruebel I and Gruebel II involve common issues of law. Therefore, his argument continues, Gruebel I will become moot only if the final property is demolished. Because we need not resolve that issue, we will assume, without deciding, that Dr. Gruebel is correct.


text:
    In re: Shellie Denise GOOCH, Relator Honorable Charles Mitchell, Respondent.
    No. 12-04-00363-CV.
    Court of Appeals of Texas, Tyler.
    Jan. 12, 2005.

      William Todd Hughey, Dallas, for relator.

      John C. Fisher, Longview, Sue Korioth, Dallas, for real party in interest.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

DIANE DeVASTO, Justice.

Relator, Shellie Denise Gooch, seeks a writ of mandamus directing the Honorable Charles Mitchell, Judge of the 273rd District Court of Sabine County, to enforce the deferred adjudication orders signed on June 16, 2004 in trial court cause numbers 6094 and 6076, respectively. For the reasons set forth below, we conditionally grant the writ.

Background

Gooch was charged by indictment with theft of over $20,000.00 but less than $100,000.00 (cause number 6076) and tampering with government records (cause number 6094). At a hearing on June 16, 2004, Gooch pleaded guilty to each charge pursuant to a plea agreement. In each cause, the trial court advised Gooch of her rights and questioned her regarding the voluntariness of her plea.

The court found that the evidence was sufficient in each cause to support a finding of guilt. In accordance with the terms of the plea agreement, the court, in each cause, deferred a finding of guilt for five years, fined Gooch $1,500.00, and specified additional conditions of her community supervision. In the theft case, the court also ordered restitution of $24,842.25, which Gooch tendered at the plea hearing.

After the trial court pronounced sentence, the district attorney informed the court that Gooch had signed an open letter to the County Clerk’s Office and the people of Sabine County. He read the letter into the record after Gooch declined to do so. Gooch stated that she signed the letter. She also stated that some of the information in the letter was false, but was interrupted by her trial counsel before she could explain her comment.

In each cause, the trial court signed the plea papers, which were entered in the record along with a “Deferred Adjudication Order” signed on June 16. Each order reflected the sentence pronounced at the plea hearing.

Gooch wrote the following letter to the editor of the local newspaper, which was published on June 23, 2004:

Many of you are aware of the accusations and charges made against me. I wanted to take this opportunity to express my appreciation to everyone who supported me and stood by me through this last year. Words cannot express how much all of you mean to me. Your faith in me was not in vain and I will remember it always. However, we have decided to bring this year of turmoil to an end in the only way that we saw possible. It may not have ended in the way that it should have, and I had to say I did something that I did not do, but to carry this any further would have strained our family both emotionally and financially. And I was not willing to let that happen. I know many of you will not understand why we chose this route, but our family is more important than any piece of paper or any gossip. The incredible support of my husband, parents, and friends has given me the faith that this will all be all right. I would like you all to know that the letter of apology offered in court was not written by me, is untrue and written in someone’s [sic] else’s words for their benefit. I stated in court that it is untrue and was not my words or feelings and I stand by that. In every day of my life I have made a conscious effort to treat every person I meet with dignity, respect, and honesty. For that I owe no apology. I hope whoever felt the need to write that letter finds peace through that act. I know that this was meant to embarrass me, but it failed entirely. I have nothing to be embarrassed about; I am only disappointed that untruths can be carried so far. As for my family and me, we have emerged stronger than ever. I pray many blessings on all of you and thank you greatly for your support and faith.

On July 9, 2004, the trial court, on its own motion, held a hearing in both cause numbers. The purpose of the hearing was to determine (1) whether the letter showed that Gooch’s pleas were not entered freely and voluntarily and (2) whether the pleas should be accepted or set aside. Counsel for the State asserted that the letter brought into question the voluntariness of Gooch’s pleas, impugned the integrity of the process, and provided cause for setting aside Gooch’s pleas and proceeding to trial.

At the hearing, Gooch testified that everything she told the court at the plea hearing was true as to her pleas. She testified that the purpose of the letter in the newspaper was “strictly thanking for support and I did state in court that there were things in that letter [that was read in open court at the plea hearing] that were untrue.” Specifically, she stated that, contrary to the statements in the letter, she never made an accusation toward people she worked with in the County Clerk’s Office and she was never questioned by the Texas Rangers. She was subjected to intensive direct and cross examination and was also questioned by the trial court. Throughout the hearing, she maintained that her guilty pleas were voluntary and that she did not want her pleas set aside.

On July 15, 2004, the trial court signed an order in each cause setting aside Gooch’s guilty plea. In cause number 6094, the order required the clerk to retain the restitution monies in an interest bearing account pending final disposition of the case. A jury trial was set for November 29, 2004 in cause number 6094. We stayed those proceedings pending disposition of Gooch’s mandamus petition.

Prerequisites to Mandamus

To prevail on her petition, a relator must first demonstrate that under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals for the Fifth Dist, 67 S.W.3d 177, 180 (Tex.Crim.App.2001). An act is “ministerial” if it does not involve the exercise of any discretion. If there is any discretion or judicial determination attendant to the act, it is not ministerial, nor is it ministerial if the trial court must weigh conflicting claims or collateral matters that require legal resolution. The law must spell out the duty to be performed with such certainty that nothing is left to the exercise of discretion or judgment. Even a trial court’s ruling on a pure question of law is not subject to writ review where that law is unsettled or uncertain. Id. at 180-81.

Generally, a relator must also demonstrate that she has no adequate remedy by appeal. See id. at 180. However, where a trial court has a ministerial duty to enforce a plea agreement, the sua sponte withdrawal of a guilty plea is a void act. Perkins v. Third Court of Appeals, 738 S.W.2d 276, 280-81 (Tex.Crim.App.1987). Mandamus is the appropriate rem edy when a trial court enters a void order. State ex rel. Holmes v. Court of Appeals for the Third Dist., 885 S.W.2d 389, 396 (Tex.Crim.App.1994). Consequently, we need only address the first requirement: whether the trial court had a ministerial duty to enforce the plea agreement.

Discussion

The court of criminal appeals has held that after accepting a plea of guilty and approving a plea bargain agreement, a trial court is “without any authority or power to do other than specifically enforce the agreement....” Perkins, 738 S.W.2d at 283. Moreover, when a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement with the prosecutor, and the plea is accepted and the agreement is approved by the trial judge, the defendant is entitled to specific enforcement if the agreement can be enforced, or, if not enforceable, is entitled to withdraw his plea. Id. These rules apply, even where the trial court attempts to' set aside the plea before its plenary power expires. See id. at 278-80 (trial court required to enforce plea agreement .where plea accepted by trial court on September 16 and set aside on September 30).

Here, the record reflects that at the plea hearing, Gooch stated, and the trial court found, that her guilty pleas were knowingly, intelligently, and voluntarily made. The trial court then sentenced Gooch according to the terms of the plea agreement and entered corresponding orders. Under these facts, we are constrained to apply Perkins.

Conclusion

Having applied Perkins, as we must, to the facts of this case, we hold that the trial court had a ministerial duty to enforce Gooch’s plea agreement with the State. Consequently, the court was without authority to set aside the guilty plea and disposition in either case. Mandamus is an appropriate remedy where the trial court has entered a void order. Therefore, we conditionally grant the writ. We are confident that within ten days of the date of our opinion and order, the trial court will (1) vacate the July 15 order entered in cause number 6076 and in cause number 6094 setting aside Gooch’s guilty plea and the disposition of the cause and (2) reinstate its June 16 “Deferred Adjudication Order” in each cause. The writ will issue only if it fails to do so. Our stay of November 29, 2004 in cause number 6094 is lifted.

Writ of mandamus conditionally granted.

      . The court points out, however, that evidence in the record of any fraud in the inducement on the part of a defendant or the defendant's attorney might estop the defendant from seeking specific performance of the agreement. Perkins, 738 S.W.2d at 283. In the present case, the State does not assert estoppel.