author: McCLURE, Justice.

text:
    The CITY OF EL PASO, Appellant, v. Pedro HERNANDEZ, Individually and on behalf of all statutory beneficiaries of the Estate of Andrea Hernandez, Deceased, Appellees.
    No. 08-99-00315-CV.
    Court of Appeals of Texas, El Paso.
    March 16, 2000.

      John Gates, Asst. City Atty., El Paso, for Appellant.
    Gil Gonzalez, M. Mitchell Moss, Robles, Bracken, Coffman & Hughes, L.L.P., El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

McCLURE, Justice.

Pedro Hernandez, Individually and on behalf of all statutory beneficiaries of the Estate of Andrea Hernandez, Deceased (Appellees), brought this negligence case under the Texas Tort Claims Act based on an allegation that the delay in dispatching an ambulance from one El Paso hospital to another resulted in the death of Andrea Hernandez. Raising five issues for review, the City of El Paso brings an interlocutory appeal from the denial of its motion for summary judgment and plea to the jurisdiction based on sovereign immunity. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(5) & (a)(8)(Vernon Supp.2000). The facts of this case present not only a frightening but egregious example of the harm which results from the failure of an emergency ambulance service to properly implement a patient transport policy when a patient’s life hangs in the balance. Despite the heroic efforts of several physicians and other personnel to expedite the transfer and then to ultimately save the patient’s life, the unnecessary delay in dispatching an ambulance resulted in the death of Andrea Hernandez. The issue before us, however, is not whether the City of El Paso was negligent, but rather whether this claim falls within the Texas Tort Claims Act so that the City of El Paso’s sovereign immunity is waived. Finding error, we reverse and remand for trial against the remaining defendant.

FACTUAL SUMMARY

On the morning of October 5, 1998, fifty-six-year-old Andrea Hernandez became ill at her El Paso home and told her daughter, Sylvia Hernandez, that she needed to go to the hospital. When Sylvia saw her mother begin “clamping her teeth,” she called 9-1-1. An ambulance quickly arrived and transported Mrs. Hernandez to Thomason Hospital even though she lived much closer to Columbia Medical Center East. Surgeons at Thomason performed emergency exploratory surgery and determined that Mrs. Hernandez suffered from a dissecting aneurysm in the ascending aorta. Because further treatment required a heart-lung machine which Thoma-son did not have, Dr. Michael Oszczakiew-icz, chief of thoracic surgery at Thomason, determined that Mrs. Hernandez should be transferred immediately by ambulance to Providence Hospital in El Paso. A doctor at Thomason, identified in the record only as Dr. Hiller, contacted Emergency Medical Services (EMS) to initiate the transfer of Mrs. Hernandez to Providence. Raul Ponce, an EMS dispatcher, advised Dr. Hiller that due to an EMS policy pertaining to the emergency transfer of patients from one hospital to another, he could not dispatch an ambulance until the administration office at Providence notified EMS that Providence had accepted the patient. That policy also required that a doctor or nurse accompany the patient. Before concluding the call, Dr. Hiller informed Ponce that Dr. Oz was both the transferring and accepting physician and would accompany Mrs. Hernandez to Providence. When Jane Odom, a Thoma-son nursing supervisor, later called to determine whether an ambulance had been dispatched, Ponce reiterated the requirements of the transfer policy. Odom then called the administrative secretary at Providence several times in an effort to obtain that institution’s approval of the transfer. Each time, the administrative secretary told Odom that they were still looking for the administrator. Other evidence showed that the administrator could not be reached because he was out of town. Similarly, personnel in Thomason’s admitting office repeatedly called the admitting office at Providence to determine whether they would accept the patient but could not obtain an answer. Dr. Oz also called Providence’s administrative office in an effort to obtain the approval needed by EMS.

At an undetermined time later, EMS personnel who had just transported another patient to Thomason contacted Ponce and informed him that Thomason was requesting that they immediately transfer Mrs. Hernandez to Providence. Ponce again insisted that the transfer would not be authorized until Providence accepted the patient. Ponce then contacted his field supervisor, Divenus “Tiny” Parker, about the situation. When she agreed that Mrs. Hernandez could not be transferred until Providence accepted her, Ponce asked Parker to call Thomason because they had been “hassling” him. At some point after this call, Alice Gordon, the administrator on call at Providence, called Ponce and informed him that Dr. Oz had just spoken with her about Mrs. Hernandez and the need for her to be transferred to Providence immediately. She specifically informed Ponce that she was the administrator on call and that Providence would accept the patient, and she requested that EMS “please hurry.” Despite having all of the information he needed to authorize the ambulance waiting at Thomason to transfer Mrs. Hernandez, Ponce did not do so.

Several minutes later, Dr. Oz called Ponce in an effort to stress the emergency nature of the situation and to find out why EMS would not transfer Mrs. Hernandez. When Ponce attempted to argue with the doctor about the need for the transfer by telling him that Mrs. Hernandez was already in a facility where she could be treated, Dr. Oz quickly corrected him and stated that she could not be treated at Thomason because they did not have a heart-lung machine. Dr. Oz told Ponce that it had been thirty minutes since they first requested the ambulance and that Mrs. Hernandez was dying. Ponce replied that he would have his supervisor call Dr. Oz.

After hanging up with Dr. Oz, Ponce called Providence’s admitting office in an effort to determine whether Providence had accepted the transfer. Ponce initially told Providence that the patient’s name was Alice Gordon (the name of Providence’s administrator on call who he had spoken with only minutes earlier) but after a few moments, he realized that was not correct. He also had difficulty in relaying the diagnosis and the reason for the transfer but he finally gave them that information after speaking with someone else at EMS. Providence informed Ponce that they would have to call him back. Ponce then called Parker and told her that he was angry because Dr. Oz had threatened him and said he not doing his job. They discussed how they had these “threats” on tape. After discussing these matters of personal interest, Ponce finally told Parker that Alice Gordon, who he misidentified as a “nursing supervisor” from Providence, had accepted the patient and he asked Parker whether they could accept that authorization. Parker replied that the authorization had to be from a doctor and said that they still needed to know precisely where at Providence the patient was to be taken. Ponce told Parker that the patient’s chest had been opened up and that she was “going down bad.” After discussing whether they should authorize the transfer, Parker continued to insist that they needed to know where the patient was supposed to go once at Providence. Ponce concluded this call with Parker without authorizing the transfer.

Sometime after this call, Eduardo Martinez, another EMS dispatcher, received a call from Charlie Lozano, an EMS medic, who informed Martinez that one of the doctors at Thomason wanted them to transfer Mrs. Hernandez to the helicopter pad immediately. Martinez told them to wait because they had Parker on the line and they were waiting for her to authorize the transfer. Lozano put Dr. Salcedo from Thomason on the line who told Martinez that they had opened up the chest of Mrs. Hernandez and found that she had an aortic dissection and they could not do anything further at Thomason. He also told Martinez that “she’s got only a few minutes” and that her life depended on whether she got to Providence “now.” He additionally gave Martinez the same information that had been given to Ponce earlier, that is, Dr. Oz would be the accepting physician at Providence and he would be traveling with the patient. When Dr. Sal-cedo asked whether they could get the approval from the supervisor while en route with the patient, Martinez replied that they could not. Still later, an unidentified dispatcher at EMS spoke with EMS personnel in the ambulance located either at or near Thomason to determine exactly where at Providence Mrs. Hernandez needed to be transferred. The ambulance personnel replied that she needed to go directly to the “O.R.” At this point, the dispatcher finally authorized them to transfer Mrs. Hernandez.

Tragically, Mrs. Hernandez died in the operating room at Providence. Later that same day, Dr. Oz called EMS and informed them that Mrs. Hernandez had died as a result of their substantial delay in dispatching the ambulance. Although the evidence does not reflect the exact amount of time which passed before EMS dispatched the ambulance, Dr. Oz stated in his written death summary that there was a delay of thirty to forty-five minutes.

On August 31, 1995, Appellees filed suit against the City of El Paso and the El Paso Hospital District, operating as R.E. Thomason General Hospital, under the Texas Tort Claims Act, and they filed a negligence claim against Providence Memorial Hospital. With regard to its suit against the City of El Paso, Appellees alleged first that sovereign immunity had been waived in that EMS employees negligently used and misused tangible personal property, including emergency vehicles, in misdiagnosing the severity of Mrs. Hernandez’s condition and transporting her to Thomason rather than Columbia Medical Center East. They also alleged that the negligent use and misuse of tangible personal property, including electronic communications equipment and telephones, caused a failure to timely transport Mrs. Hernandez, and ultimately, resulted in her death. They further alleged that EMS violated certain city ordinances by failing to transport Mrs. Hernandez to the nearest hospital and in failing to timely transport her from Thomason to Providence.

On July 30, 1999, the City of El Paso filed a motion for summary judgment and plea to the jurisdiction on the ground that it is entitled to sovereign immunity because Appellees’ claim does not fall within the categories of liability found in the Tort Claims Act, namely, the negligent operation or use of a motor vehicle or the negligent use or misuse of tangible personal property. The trial court denied the motion for summary judgment and plea to the jurisdiction. The City challenges that ruling in this interlocutory and accelerated appeal.

STANDARD OF REVIEW

The standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that a judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App. — El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant’s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant’s cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Duran, 921 S.W.2d at 784. Where the defendant is the movant, it must conclusively establish each essential element of an affirmative defense, such as sovereign immunity. Camacho v. Samaniego, 954 S.W.2d 811, 817 (Tex.App. — El Paso 1997, writ denied). In resolving these issues, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant’s favor. Nixon, 690 S.W.2d at 548-49; Duran, 921 S.W.2d at 784.

SOVEREIGN IMMUNITY

In Issues One, Two, Four, and Five, the City of El Paso argues that the trial court erred in denying its motion for summary judgment and plea to the jurisdiction because Appellees failed to plead and prove waiver of sovereign immunity under the Texas Tort Claims Act (the Act). Appel-lees respond that waiver of sovereign immunity exists not only under Section 101.021 of the Act, but also independently under Section 101.055 and Section 101.062, which pertain to emergency services. We disagree.

A municipality such as the City of El Paso is immune from liability for its governmental functions unless that immunity is specifically waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex.1995); Gonzales v. City of El Paso, 978 S.W.2d 619, 622 (Tex.App. — El Paso 1998, no pet.). By designating the operation of emergency ambulance service as a governmental function, the Legislature has shrouded this function with immunity unless a claim falls within one of three specific areas of liability for which immunity is waived by Section 101.021 of the Tort Claims Act. See Medrano v. City of Pear-sall, 989 S.W.2d 141, 144 (Tex.App. — San Antonio 1999, no pet. h.); McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex.App. — Fort Worth 1991, no writ).

Section 101.021 of 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 liable 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).

Despite the waiver found in Section 101.021, a governmental unit specifically retains its immunity in claims arising from:

[T]he action of an employee while responding to an emergency call ... if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.

TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(2); Borrego v. City of El Paso, 964 S.W.2d 954, 957 (Tex.App.- — El Paso 1998, writ denied). Similarly, in the ease of 9-1-1 emergency services like that involved here, Section 101.062 further provides:

This chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.

TEX.CIV.PRAC. & REM.CODE ANN. § 101.062(b).

Waiver under Sections 101.055 and 101.062

We will first address Appellees’ assertions that regardless of the applicability of Section 101.021 to the facts, Sections 101.055 and 101.062 provide an independent basis for the City’s liability because they waive the City’s sovereign immunity. A waiver of sovereign immunity by the Legislature will not be found unless it is stated in clear and unambiguous language. See Barfield, 898 S.W.2d at 291; Gonzales, 978 S.W.2d at 622. Section 101.021, which bears the specific title “Governmental Liability,” is found in Subchapter B of the Act which is generally entitled “Tort Liability of Governmental Units.” Sections 101.055 and 101.062 are found in Subchapter C of the Act which is entitled “Exclusions and Exceptions.” The location of these statutes in the Exclusions and Exceptions portion of the Act rather than in Subchapter B strongly indicates that they are not independent waivers of liability but instead are, as indicated by the title, exclusions and exceptions to liability under Subchapter B. Our conclusion is supported by comparing the language in Section 101.021 with the language in Sections 101.055 and 101.062 because there is nothing in the latter two sections which may be read as a' clear and unambiguous waiver of sovereign immunity. Whereas Section 101.021 plainly states “[a] governmental unit in the state is liable for ...,” there is no similar language found in either Section 101.055 or Section 101.062 evidencing a clear intent to waive liability independent of Section 101.021. See Bellnoa v. City of Austin, 894 S.W.2d 821, 826 (Tex.App. — Austin 1995, no writ)(comparing Sections 101.021 and 101.0215 and holding that Section 101.0215 does not clearly and unambiguously waive sovereign immunity and is not an independent waiver of immunity; therefore, Section 101.0215 is subject to Section 101.021); McKinney, 814 S.W.2d at 865-66 (holding that Section 101.0215 does not waive immunity and that claims related to governmental function under that section must fall within Section 101.021). See also Dalon v. City of DeSoto, 852 S.W.2d 530, 535-36 (Tex.App. — Dallas 1992, writ denied)(where negligence claim related to a storm sewer, which is designated as a governmental function by Section 101.0215(a)(9), municipality is immune from liability because property damage did not arise from the operation or use of a motor-driven vehicle or motor-driven equipment as required by Section 101.021(1)(A)). Further, Section 101.055(2) provides that “[t]his chapter does not apply ” to the type of claim described in the section so long as the employee’s action is in compliance with laws and ordinances applicable to the emergency action. When read in context of the Act, we construe this as meaning that the governmental unit will retain its sovereign immunity by virtue of Section 101.055(2) even though waiver of immunity may exist under Section 101.021. Because we find that Section 101.055(2) is not a clear and unambiguous waiver of immunity, and in fact, provides added protection for a governmental unit, we hold that a claim arising from the action of a governmental unit’s employee while responding to an emergency call is subject to Section 101.021. Similarly, Section 101.062 does not clearly and unambiguously waive the sovereign immunity of a governmental unit. In fact, Section 101.062, like Section 101.055(2), provides additional protection for a governmental unit because it requires that the plaintiff allege and prove that the action forming the basis of the complaint violates a statute or ordinance. See Fernandez v. City of El Paso, 876 S.W.2d 370, 376 (Tex.App.- — El Paso 1993, writ denied)(af6rming dismissal of claim under Tort Claims Act where plaintiff failed to allege violation of statutes or ordinances relating to delayed response in emergency action, and therefore, the City of El Paso retained its sovereign immunity). Therefore, we hold that the City has sovereign immunity in an action involving a claim related to 9-1-1 emergency service only where governmental immunity is waived under Section 101.021 and where the action violates a statute or ordinance.

Operation and Use of Motor Vehicle and Misuse of Motor Vehicle as Tangible Personal Property

We turn now to an analysis of whether the facts establish a waiver of sovereign immunity under Section 101.021. Appellees first allege that EMS employees wrongfully and negligently operated and used an emergency vehicle by transporting Mrs. Hernandez to Thomason rather than the nearest hospital in violation of EMS’s Transport Policy Statement. They allege that this same action constitutes misuse of the emergency vehicle.

“Use” is defined in the context of Section 101.021(2) as “to put or bring into action or service; to employ for or apply to a given purpose.” Kerrville State Hospital v. Clark, 923 S.W.2d 582, 584 (Tex.1996); Borrego v. City of El Paso, 964 S.W.2d 954, 957 (Tex.App. — El Paso 1998, pet. denied). Mere non-use of property is insufficient to support a claim under the Tort Claims Act. See Clark, 923 S.W.2d at 584; Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994). The Transport Policy generally requires that a patient with a non-fife threatening emergency be transported to the hospital of them choice unless they do not have a preference or are unable to state one. Patients with life-threatening emergencies must be taken to the closest emergency department or acute care area located within a hospital. While the critical nature of Mrs. Hernandez’s illness became obvious to treating physicians once she arrived at Thomason in that she had severe back pain and extremely low blood pressure, it is unclear whether the severity of her illness was apparent to EMS personnel who made the initial transport decision. Even if it could be said that a fact issue exists in this regard and it would be for a jury to determine whether EMS transported her to Thomason in violation of the transport policy, the disposi-tive question is whether these facts demonstrate a wrongful or negligent use of the emergency vehicle which would bring this claim within Section 101.021(1). The facts alleged by Appellees do not demonstrate that EMS personnel operated or used the emergency vehicle either in a wrongful or negligent fashion. Rather, the gravamen of Appellees’ complaint is that EMS personnel made an incorrect medical decision regarding whether the decedent had a life-threatening emergency and, as a result, transported her to Thomason rather than Columbia East. This is essentially a complaint about a non-use of the vehicle which does not fall within Sections 101.021(1) or 101.021(2). See City of Orange v. Jackson, 927 S.W.2d 784, 786-87 (Tex.App. — Beaumont 1996, no writ)(decision by arresting officers to take injured arrestee to jail did not constitute negligent operation or use of squad car or misuse of tangible personal property because the real basis of the claim is the failure to use the police ear to take arrestee to a medical facility).

Appellees next allege that Mrs. Hernandez’s death resulted from EMS’s negligent and wrongful operation or misuse of the emergency vehicle during the transport from Thomason to Providence. The actual basis of Appellees’ complaint is not that some wrongful or negligent act occurred during the inter-hospital transport but rather that EMS’s delay in dispatching the ambulance caused Mrs. Hernandez’s death. As stated above, the complaint is plainly directed at a non-use of the vehicle which does not fall within Section 101.021. See Jackson, 927 S.W.2d at 786-87.

Use and Misuse of Other Tangible Personal Property

Appellees also contend that Mrs. Hernandez’s death was proximately caused by EMS’s use and misuse of other tangible personal property, namely, electronic communications equipment, computer equipment, telephones, two-way radio equipment, and dispatch equipment. They argue that because EMS ineludés “operator error” within its definition of “mechanical failure” as stated in its “Communications Division Policy and Procedure Manual,” then Ponce’s failure to timely dispatch the ambulance, which Appellees assert is “operator error” and therefore a mechanical failure of equipment, equates with a misuse of tangible personal property. Regardless of what is stated in the EMS communications manual, Raul Ponce is not tangible personal property and any error of judgment committed by him, no matter how egregious, is not misuse of tangible personal property. As was the case with the emergency vehicle, the facts alleged do not demonstrate that Mrs. Hernandez’s death resulted from a use or misuse of the communications equipment within the meaning of Section 101.021(2). Even Ponce’s use of the telephone to discuss personal matters with his supervisor rather than dispatching the ambulance is not a misuse of tangible personal property. To the contrary, it is a complaint about non-use of the equipment and misuse or non-use of intangible information (the acceptance of Mrs. Hernandez by Providence), neither of which fall within Section 101.021(2). See Clark, 923 S.W.2d at 584; University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 178-79 (Tex.1994).

Inadequate Condition of Tangible Personal Property

In order to establish waiver under Section 101.021(2) of the Act, Appellees also rely on an allegation that the inadequate condition of the communications system contributed to the delay which caused the death of Mrs. Hernandez. To properly state a claim involving the “condition” of property, it is sufficient to allege that defective or inadequate property contributed to the injury. See Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31-32 (Tex.1983); City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex.App. — Fort Worth 1998, no pet.); Washington v. City of Houston, 874 S.W.2d 791, 795 (Tex. App. — Texarkana 1994, no writ). Appellees rely on summary judgment evidence which reflects that at one point during the delay, all four lines at EMS became busy with calls so that additional calls “rolled over” to the fire department. Employees at the fire department would have been unfamiliar with this particular situation and could not have been of assistance. Appellees do not allege and there is no evidence, however, that any calls related to these events were “rolled over” to the fire department or that this condition of the system contributed to the delay. Consequently, Appellees’ claim does not fall within Section 101.021(2).

For all of these reasons, we conclude that the City of El Paso was entitled to prevail on its defense of sovereign immunity. Accordingly, the trial court erred in denying the motion for summary judgment. Issues One, Two, Four, and Five are sustained. The order of the trial court denying the motion for summary judgment is reversed and the cause is remanded for trial against the remaining defendant.

      . We will not comment in this interlocutory appeal on the alleged negligence of Providence Memorial Hospital since that issue has not been fully developed and is not before us.

      . Because Dr. Oszczakiewicz is referred to as "Dr. Oz” by all persons having occasion to pronounce his name, we will do likewise throughout the remainder of this opinion.

      . Appellees dismissed their suit against Tho-mason as part of a settlement agreement.

      . TEX.CIV.PRAC. & REM. CODE ANN. § 101.0215(a)(18)(Vernon Supp.2000).

      . Under Section 6, which is entitled, “Equipment Failure,” the manual states: "General: As the entire communications system is comprised of electrical, electronic and mechanical components it is subject to failure. For the most part our system is rugged and very reliable and provides consistently good service. Failures may result as natural acts, lightning strikes, high winds, snow, ice, rain, solar and atmospheric activity. Most common are mechanical and electronic failures, as well as operator error.”

      . Because of our disposition, we need not address the third issue.


source: Caselaw Access Project

author: REX D. DAVIS, Chief Justice. TOM GRAY, Justice,

license: Public Domain

text:
    MID-CONTINENT CASUALTY COMPANY, Appellant, v. SAFE TIRE DISPOSAL CORPORATION, et al., Appellees.
    No. 10-98-294-CV.
    Court of Appeals of Texas, Waco.
    March 22, 2000.

      Kevin J. Cook, James C. Allums, Payne & Blanchard, L.L.P., Dallas, for appellant.
    Lyndon F. Bittle, Cathy A. Lilford, Michael Prince, Carrington, Coleman, Sloman & Blumenthal, L.L.P., Dallas, for appellee.
    Before Chief Justice DAVIS Justice VANCE and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

Safe Tire Disposal Corporation of Texas and Safe Tire Disposal Corporation (collectively, “Safe Tire”) filed suit against Mid-Continent Casualty Company seeking a declaratory judgment that Mid-Continent has a duty to defend Safe Tire under their insurance contract in three lawsuits brought by neighboring residents for damages allegedly suffered as a result of smoke from a fire on Safe Tire’s premises. The trial court found that Mid-Continent has a duty to defend Safe Tire in the underlying lawsuits and awarded Safe Tire judgment for its attorney’s fee and costs incurred in this declaratory judgment action and in the underlying lawsuits.

Mid-Continent claims in four issues that the court erred by: (1) finding that the pollution exclusion in the insurance policy does not apply to this case (two issues); (2) awarding Safe Tire the costs and attorney’s fees incurred in the underlying lawsuits; and (3) awarding Safe Tire the costs and attorney’s fees incurred in this declaratory judgment action.

BACKGROUND

The Texas Natural Resource Conservation Commission designated Safe Tire as a waste tire processing facility in 1992. See Act of May 26, 1991, 72d Leg., R.S., ch. 803, § 1, 1991 Tex. Gen. Laws 1267, 1273, amended by Act of May 30,1993, 73d Leg., R.S., ch. 899, § 3.01, 1993 Tex. Gen. Laws 3559, 3571 (formerly codified as Tex. Health & Safety Code Ann. § 361.471(4)). As such, Safe Tire was permitted by the Commission as a facility “at which scrap tires are collected or deposited and shredded to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery.” Id. Safe Tire processes scrap tires by separating them into rubber chips and wire pieces which Safe Tire stores at its facilities for later distribution.

On December 1, 1995, an “accidental or unintended” fire broke out at Safe Tire’s facilities. The fire began in a wire pile and spread to some piles of rubber chips. The fire was contained in these areas. Adjoining residents filed three separate suits against Safe Tire for damages allegedly sustained as a result of the fire. The petitions in these lawsuits each allege in pertinent part:

On December 1, 1995, a fire broke out at Defendants’ Facilities, causing huge volumes of thick, black smoke to blanket the surrounding area. Many people [and much property], including [property owned [by]] plaintiffs, were subjected to offensive, noxious, toxic, and hazardous fumes, as well as high levels of particulate matter, by reason of having to breath the smoke from Defendants’ fire. Many people, including plaintiffs herein, suffered damage and injury that was proximately caused by the inhalation and proximity to the smoke from Defendants’ fire.
Because of Defendants’ acts and/or negligence, Plaintiffs have been subjected to offensive, noxious, and/or dangerous odors, as well as toxic or hazardous chemicals and substances which have been released into the air in a wide area surrounding Defendants’ facilities.

Mid-Continent insured Safe Tire under a general commercial liability policy which was in force and effect during the pertinent time period. The policy contains a pollution exclusion which provides in pertinent part that coverage is not provided for:

f. (1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured;
(b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste;
.... Subparagraphs (a) and (d)(i) do not apply to “bodily injury” or “property damage” arising out of heat, smoke or fumes from a hostile fire.
As used in this exclusion, a hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Safe Tire gave Mid-Continent timely notice of the underlying lawsuits and asked Mid-Continent to defend it under the policy. Mid-Continent has denied coverage and refuses to defend Safe Tire because of its position that the pollution exclusion relieves it of its duty to provide coverage for or defend against any of the lawsuits.

APPLICABLE LAW

The Supreme Court has established the following test for determining whether an insurance company has a duty to defend its insured in a particular case:

[U]nder the “complaint allegation rule,” factual allegations in the pleadings and the policy language determine an insurer’s duty to defend. American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 847-48 (Tex.1994). “If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured.” Id. at 848.

Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821 (Tex.1997); accord National Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 989 S.W.2d 189, 141 (Tex.1997).

Texas courts sometimes refer to the “complaint allegation” rule as the “eight corners” rule. See National Union Fire Ins. Co., 939 S.W.2d at 141. When we apply this rule, we give a liberal interpretation to the allegations of the petition. Id. We “focus on the factual allegations that show the origin of the damages rather than on the legal theories alleged.” Id. (quoting lower court’s decision, 919 S.W.2d 903, 905 (Tex.App. — Eastland 1996)).

Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. Stated differently, in case of doubt as to whether or not the allegations of a complaint against the insured state a cause of action within the coverage of a liability policy sufficient to compel the insurer to defend the action, such doubt will be resolved in insured’s favor.

Id. (quoting Heyden Newport Chem. Corp. v. Southern Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965)).

The exception to this general rule occurs “[w]hen the petition in the underlying lawsuit does not allege facts sufficient for a determination of whether those facts, even if true, are covered by the policy.” State Farm Fire & Cas. Co. v. Wade, 827 S.W.2d 448, 452 (Tex.App. — Corpus Christi 1992, writ denied); accord Gonzales v. American States Ins. Co., 628 S.W.2d 184, 186 (Tex.App. — Corpus Christi 1982, no writ). In this circumstance, “the evidence adduced at the trial in a declaratory judgment action may be considered along with the allegations in the underlying petition.” State Farm Fire & Cas. Co., 827 S.W.2d at 452; accord Gonzales, 628 S.W.2d at 186.

SUBDIVISION (a) OF THE POLLUTION EXCLUSION

Mid-Continent contends in its second issue that subdivision (a) of the pollution exclusion applies to the claims brought in the underlying lawsuits. Safe Tire responds that the hostile fire exception to subdivision (a) applies.

The policy plainly defines “pollutants” to include “smoke.” Subdivision (a) excludes from coverage any bodily injury or property damage caused by the discharge of pollutants “from any premises ... owned or occupied by ... [the] insured.” This subdivision does not apply, however, “to ‘bodily injury’ or ‘property damage’ arising out of heat, smoke or fumes arising from a hostile fire.” Under this exception, “a hostile fire means one which becomes uncontrollable or breaks out from where it was intended to be.”

The petitions in the underlying suits each allege that the claims for damages therein are due to a fire which “broke out” at Safe Tire’s facilities. The evidence adduced at trial reflects that the fire was “unintended.” The fire began in a wire pile, spread to some piles of rubber chips, and was contained in these areas.

Mid-Continent argues that under the terms of the policy a hostile fire occurs only when a “friendly” fire (ie., one intentionally set in an appropriate place) “gets out of control or breaks out from where it ought to be.” Mid-Continent relies on settled case law holding that a fire insurance policy covers only losses due to a “hostile” fire rather than a “friendly” fire. See, e.g., Reliance Ins. Co. v. Naman, 118 Tex. 21, 25-26, 6 S.W.2d 748, 744 (1928); Garfield Mut. Fire & Storm Ins. Ass’n v. Calhoun, 532 S.W.2d 663, 666 (Tex.Civ.App. — Corpus Christi 1975, no writ); City of New York Ins. Co. v. Gugenheim, 7 S.W.2d 588, 589 (Tex.Civ.App. — Waco 1928, no writ). Thus, in Mid-Continent’s view, the hostile fire exception will apply only if Safe Tire intentionally sets a controlled fire in an appropriate location on its premises which becomes uncontrollable or breaks out from its place of origin.

Safe Tire responds that the term “hostile fire” includes any “accidental” or “unintended” fire. See, e.g., North British & Mercantile Ins. Co. v. Arnold, 171 S.W.2d 215, 217 (Tex.Civ.App. — Galveston 1943, no writ); Maffei v. Northern Ins. Co., 12 F.3d 892, 898 (9th Cir.1993). Webster’s defines “uncontrollable” in part as “free from control by a superior power.” Merriam-Webster’s Collegiate Dictionary 1286 (10th ed.1993). Webster’s defines the verb “control” in part: “to exercise restraining or directing influence over: regulate.” Id. at 252. These definitions tend to support Safe Tire’s interpretation of the term “hostile fire” because an accidental or unintended fire would be one which is not restrained, directed or regulated by someone.

Although the Court believes Safe Tire’s interpretation of the term “hostile fire” to be more reasonable, the parties have, at a minimum, provided competing reasonable definitions for that term. When an exclusion in “an insurance contract is subject to more than one reasonable interpretation, the contract is ambiguous and the interpretation that most favors coverage for the insured will be adopted.” Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997); accord Kelly Assocs., Ltd. v. Aetna Casualty & Sur. Co., 681 S.W.2d 593, 596 (Tex.1984). Accordingly, we adopt Safe Tire’s interpretation.

The fire which forms the basis of the underlying suits was a “hostile fire” under the terms of the policy. Therefore, the exclusion of subdivision (a) does not apply. Accordingly, we overrule Mid-Continent’s second issue.

SUBDIVISION (b) OF THE POLLUTION EXCLUSION

Mid-Continent argues in its first issue that subdivision (b) of the pollution exclusion applies to this case. Specifically, Mid-Continent contends that, because Safe Tire is in the business of processing statutorily-defined “waste” tires, its facilities necessarily fall within the subdivision (b) exclusion for pollutants dispersed from a “site or location” used for the “processing” of “waste.” Mid-Continent also relies on a dictionary definition of “waste” which defines the term in part as “refuse,” which is itself defined in part as “the worthless or useless part of something.” Safe Tire responds that the statutory definition of “waste” does not necessarily equate with the policy definition of the term and that adopting Mid-Continent’s interpretation would render the “hostile fire” exception previously discussed meaningless.

We do not consider a statutory definition for a term in an insurance policy when construing that term unless the statute “bear[s] on the subject matter of insurance contracts or ... definefe] the rights and liabilities of parties to such contracts.” Carroll v. Universal Underwriters Ins. Co., 613 S.W.2d 815, 817 (Tex.Civ.App.— Houston [14th Dist.] .1981, writ ref'd n.r.e.); accord, Howard v. INA County Mut. Ins. Co., 938 S.W.2d 212, 219 (Tex.App. — Dallas 1996, writ denied). In this case, the former Waste Tire Recycling Program statutes (chapter 361, subchapter P of the Health & Safety Code) do not relate to “the subject matter of insurance contracts” or “define the rights and liabilities of parties to such contracts.” See id. Accordingly, we do not consider the statutory definitions contained therein when construing the term in question. Id.

The plaintiffs in each of the underlying suits allege in pertinent part that Safe Tire is “engaged in the treatment, processing, storage, and/or disposal of used automobile tires.” Webster’s defines “waste” in part:

4. a (2): scrap (3): an unwanted byproduct of a manufacturing process ... b refuse from places of human or animal habitation: as (1): garbage, rubbish.

MeRRiam-WebsteR’s Collegiate Dictionary at 1333. According to Webster’s, a “byproduct” is “something produced in a usu[ual] industrial or biological process in addition to the principal product.” Id. at 157. As Mid-Continent argues, “refuse” is defined in part as “the worthless or useless part of something.” Id. at 984. Webster’s defines “garbage” in part as “unwanted or useless material.” Id. at 480. “Rubbish” is similarly defined in part as “useless waste or rejected matter.” Id. at 1022. Thus, from the dictionary, two primary definitions of the term “waste” can be found: (1) an industrial byproduct; and (2) that which is useless or has been rejected.

Mid-Continent takes the position that “used” tires fall within the latter category. It places primary rebanee on Kruger Commodities, Inc. v. United States Fidelity & Guar, to support its argument. 923 F.Supp. 1474 (M.D.Ala.1996). Kruger involved a rendering plant “which processed used cooking oils and animal carcasses.” Id. at 1476. The court determined under Nebraska law that odors produced by the processing of animal carcasses during normal plant operations were “pollutants” because Kruger was in the business of processing waste. Id. at 1479-80.

Kruger may be distinguished for several reasons. The court determined that the odors in question were pobutants under subdivision (c) of a pobey identical in all pertinent respects to the pobey in this case. See id. Mid-Continent does not argue that subdivision (c) appbes in the present case.

The pollutants in Kruger were the offensive odors released from the rendering plant as a result of the processing of animal carcasses, not the carcasses themselves. Id. at 1476. Subdivision (c) defines “pollutants” “which are or were at any time ... disposed of or processed as waste.” Thus, the odors released from the Kruger plant were pollutants covered by the exclusion because they were disposed of by the plant as a by-product of the rendering process and not because Kruger was in the business of processing “waste” products. See, e.g., Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472, 473 (9th Cir.1991) (gas released during manufacturing process); Grant-Southern Iron & Metal Co. v. CNA Ins. Co., 905 F.2d 954, 955 (6th Cir.1990) (smoke, gas, etc. released from iron briquetting plant); TriMunicipal Sewer Comm’n v. Continental Ins. Co., 223 A.D.2d, 639, 639, 636 N.Y.S.2d 856, 857 (1996) (odors emanating from sewage treatment plant); City of Bremerton v. Harbor Ins. Co., 92 Wash. App. 17, 18, 963 P.2d 194, 195 (1998) (same).

It could likewise be argued that the odors in Kruger constituted pollutants under subdivision (b) of the policy because they were released from premises in which Kruger was processing a “waste” product. Applying such an interpretation to the instant case, the smoke released from Safe Tire’s premises could arguably be considered a pollutant under subdivision (b) because it was released from a facility which is in the business of processing “waste” tires. However, we have already determined that we will not consider the statutory definition of “waste” tires when construing the term “waste” in the policy.

In addition, were we to apply such a definition in this case, it would render the hostile fire exception to subdivision (a) previously discussed meaningless. When we construe exclusions in an insurance policy, we must “attempt to give effect to all contract provisions so that none will be rendered meaningless.” Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998); accord Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.1998); see also American Star Ins. Co. v. Grice, 121 Wash.2d 869, 877-78, 854 P.2d 622, 627 (1993) (refusing to construe pollution exclusion in nearly identical fact scenario in such a manner as to render hostile fire exception meaningless). Following this principle, we decline to construe subdivision (b) as applying automatically to any insured entity in the business of processing consumer waste materials.

Rather, we construe this provision to apply to pollutants released “from any premises, site or location which is or was at any time used by or for [Safe Tire] or others for the handling, storage, disposal, processing or treatment of [unwanted byproducts]” produced during the processing of used tires at Safe Tire’s facilities. See MerRIAM-Webster’s Collegiate Dictionary at 1333. The rubber chips and wire from which the fire in this case originated are the desired products of the tire-recycling process. Thus, they do not constitute “waste” under the policy. See id. Therefore, the exclusion of subdivision (b) does not apply. Accordingly, we overrule Mid-Continent’s first issue.

COSTS AND ATTORNEY’S FEES

Mid-Continent contends in its third and fourth issues that the court erred by awarding Safe Tire the costs and attorney’s fees incurred in the underlying lawsuits and the costs and attorney’s fees incurred in this declaratory judgment action. Mid-Continent premises these issues on its contentions that the pollution exclusions discussed above “exclude coverage and therefore the duty to defend.” However, we have determined that the exclusions do not apply in this case. Therefore, Mid-Continent does have a duty to defend Safe Tire in the underlying lawsuits. Accordingly, we overrule Mid-Continent’s third and fourth issues.

We affirm the judgment.

TOM GRAY, Justice,

dissenting.

The question in this appeal is whether damage alleged to have occurred as a result of a fire at the plant of a tire recycling company is covered by an insurance policy. The majority, after analyzing the policy and an extensive discussion of the definition of “waste,” construes the policy to provide coverage to the damages as alleged. Because the policy contains a “definition” of “waste” by reference to what is included within the meaning of the term which is contrary to the interpretation of the term as construed by the majority, I respectfully dissent.

Safe Tire is in the business of processing tires. They are designated by the Texas Natural Resource Conservation Commission as a waste tire processing facility. Their business is to operate “a facility ‘at which scrap tires are collected or deposited and shredded to facilitate the future extraction of useful materials for recycling, reuse, or energy recovery.’ ... Safe Tire processes scrap tires by separating them into rubber chips and wire pieces which Safe Tire stores at its facilities for later distribution.” Mid-Continent Casualty Company v. Safe Tire Disposal Corporation, 16 S.W.3d 418, 420 (Tex.App. — Waco, 2000).

It is undisputed that a fire began in one of the wire piles and spread to the piles of rubber chips. It is the smoke from this fire that resulted in alleged damages to area businesses, property and individuals. Various lawsuits were filed against Safe Tire. Safe Tire notified Mid-Continent to provide a defense and coverage. Mid-Continent responded that they were not liable because the insurance policy excluded coverage.

The clause in the insurance contract in dispute is referred to as a pollution exclusion clause. The pollution exclusion clause states that the policy does not provide coverage for:

I. 2. f. (1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants:
(b) At or from any premises, site or location which is or was at any time used by or for any insured or others for the handling, storage, disposal, processing or treatment of waste;
Subparagraphs (a) and (d)(i) do not apply to “bodily injury” or “property damage” arising out of heat, smoke or fumes from a hostile fire.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

The wire pieces and rubber chips that caught fire and burned were “to be recycled, reconditioned or reclaimed” within the meaning and terms of the pollution exclusion clause of the policy. There is no need to look outside the policy for a definition of waste. As a facility recognized by the Texas Natural Resource Conservation Commission as a waste tire processing facility, Safe Tire should not be surprised nor heard to complain that a Commercial General Liability insurance policy which contains a pollution exclusion clause denies coverage of a site from which waste might pollute neighboring property and cause damage.

A possibly confusing aspect of the analysis is a determination of whether the pollution exclusion applies because the pollution which was dispersed, migrated, released or escaped from the location was in the form of smoke, vapor, soot and fumes and not in the form of the actual waste products, in this case wire pieces and rubbers chips. It was not the waste directly, but the burning of the waste, that resulted in the alleged damages. Thus we must look to the terms of the policy to see how it applies to these facts.

The pollution exclusion clause at issue, I. 2. f.(l)(b), provides that there is no insurance if the escape of pollutants is from a premises, site or location where waste was stored or processed. However, the hostile fire clause (quoted above) provides coverage if the damages are from a hostile fire even though the damage is the result of what would otherwise be a pollutant, i.e. smoke, soot, etc. Thus, the hostile fire clause operates as an exception to the pollution exclusion clause. However, the hostile fire exception does not cover a fire at an excluded site. Because the site where the wire pieces and rubber chips were stored is a site excluded by the pollution exclusion clause, the damages alleged to have resulted from a fire at the excluded site are clearly not covered.

Safe Tire responds and the majority concludes that the policy provides no coverage and is meaningless if it does not cover this fire. Not true. If the administrative building had burned, instead of the piles of waste (at the site where they were stored), and the same type claims had been made against Safe Tire, there is little doubt that the claims would be covered by the terms of the policy. Additionally, fire was not the only risk insured against by the terms of the policy.

When the location at which the fire occurred is so clearly a place where waste, as described in the policy, was stored, and is therefore excluded from coverage under the express terms of the policy, Mid-Continent had no duty to defend the claims, much less provide coverage, for the alleged damages.

This is not unlike a petition which clearly describes a car which the owner did not include on an automobile policy. After the car is involved in a wreck, the owner says, <£Well I have another car that was not listed on the policy. But I do have an automobile insurance policy with your company. You have a duty to defend me and pay any damages, even though the premiums you charged me did not include coverage for the car involved in the wreck.” The result in this case should be equally obvious.

Based upon the foregoing analysis, I would reverse the declaratory judgment and render judgment that the pollution exclusion in the policy excludes coverage and the duty to defend claims which resulted from a fire at a site where piles of wire pieces and rubber chips that were to be recycled, reconditioned or reclaimed were stored.

      . The parties tried this case on an agreed statement of facts. See Tex.R. Civ. P. 263.

      . Chapter 361, subchapter P (sections 361.471 — 361.499) of the Health and Safety Code, which was entitled "Waste Tire Recycling Program,” expired on December 31, 1997. See Act of May 29, 1995, 74th Leg., R.S., ch. 317, § 23, 1995 Tex. Gen. Laws 2723, 2733.

      .One of the petitions varies to some degree in describing the source of the plaintiffs’ claims. The bracketed portions reflect variants in wording which appear in this petition. The last sentence of the quoted paragraph in this petition reads, "Many people, including plaintiffs herein, suffered damage and injury that was proximately caused by the smoke from Defendants’ Are.”

      . Mid-Continent does not contend that subdivision (c) or (d) of the pollution exclusion applies in this case. Accordingly, we do not address these provisions.

      . We note, however, that an ambiguity does not arise solely from the fact that the parties offer conflicting interpretations of the provision at issue. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 465 (Tex.1998); Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997).

      . Subdivision (c) of the Kruger policy, like the one in this case, excludes coverage for injuries or damages caused by pollutants "which are or were at any time transported, handled, stored[,] treated, disposed of, or processed as waste." See Kruger Commodities, Inc. v. United States Fidelity & Guar., 923 F.Supp. 1474, 1477 (M.D.Ala.1996).

      . The majority redefines the term waste, as used in the policy, to be "unwanted by-products” and states that because the wire pieces and rubber chips were the desired products of shredding the tires they are not waste. It is undisputed that the wire pieces and rubber chips were to be recycled, reconditioned or reclaimed. Safe Tire wants the definition of waste contained in the policy to be limited to the use of the term in the definition of pollutants and thus construes it to also require it to be a thermal irritant or contaminant. We should not so limit our analysis. When waste is defined in the policy by reference to what is included in the meaning of the term, we are obligated to use those inclusive terms each time the defined term is used. In this policy that means the descriptive terms should be used in the clause describing sites for which no coverage is provided, not just in the definition of pollutants. The level of indention of the definition likewise indicates the definition of waste in the policy should be applied for each use of the term in the entire subsection.


author: PER CURIAM.

text:
    Dale FOWLER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-99-255-CR.
    Court of Appeals of Texas, Waco.
    March 22, 2000.
    Rehearing Overruled April 26, 2000.

      W.V. Dunnam, Dunnam & Dunnam, Waco, Bennett Brantley Aufill, III, Hills-boro, for appellant.
    John W. Segrest, Crim. Dist. Atty., Amy H. Eisenbeck, Asst. Dist. Atty., Waco, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   MEMORANDUM OPINION

PER CURIAM.

Dale Fowler pled nolo contendere pursuant to a plea bargain agreement to the offense of falsely holding oneself out as a lawyer. Tex. Penal Code Ann. § 38.122 (Vernon 1994). A finding of guilt was deferred, and he was placed on community supervision for 2 years. Fowler signed a waiver of right to appeal, but then filed a notice of appeal. The State has filed a motion to dismiss, alleging that Fowler’s notice of appeal was untimely, that Fowler’s general notice of appeal is insufficient to confer jurisdiction on this Court and that Fowler had validly waived his right to appeal. We dismiss the appeal for want of jurisdiction.

The trial court pronounced Fowler’s sentence in open court on August 9, 1999. His notice of appeal was filed with the trial court on September 9, 1999. No motion for new trial was filed. According to our rules of appellate procedure, a notice of appeal for a criminal case must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order ...

Tex.R.App. P. 26.2(a)(1). Fowler’s notice of appeal was filed on the 31st day after his sentence was suspended in open court.

A notice of appeal which complies with the requirements of Rule 26 is essential to vest a court of appeals with jurisdiction. Slaton v. State, 981 S.W.2d 208, 209 (Tex.Crim.App.1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. Slaton, 981 S.W.2d at 209; Olivo, 918 S.W.2d at 523. Thus, unless there is an exception to the application of this rule in this case, we have no jurisdiction of this appeal.

The Texas Supreme Court held in Ver-burgt

... that a motion for extension of time is necessarily implied when an appellant acting in good faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(a)(2) ... we reverse the judgment of the court of appeals and remand to that court to allow it to determine whether Verburgt offered a reasonable explanation for his failure to timely file his bond.

Verburgt v. Darner, 959 S.W.2d 615, 617 (Tex.1997).

The Supreme Court specifically noted that the rule as applied in civil cases was more liberal than in criminal cases. Id at 616. Verburgt involved the application of the former- rules invoking the court of appeals jurisdiction in a civil case by filing a cost bond. Verburgt has been applied to the current requirement for filing a notice of appeal to invoke appellate jurisdiction. Coronado v. Farming Technology, Inc., 994 S.W.2d 901 (Tex.App. — Houston [1st Dist.] 1999, no pet.); Tex.R.App. P. 26.

Fowler has not asked us to apply Ver-burgt to his criminal case. The Court of Criminal Appeals has specifically, consistently and recently held that an untimely notice of appeal does not invoke appellate jurisdiction. Slaton v. State, 981 S.W.2d 208 (Tex.Crim.App.1998). The Court has used strong and clear language to hold that an untimely notice of appeal without a motion for extension of time does not invoke the jurisdiction of an appellate court. In Olivo, the Court analyzed the issue as follows:

“Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as it if did not exist.” [citation omitted] When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction. In that instance, a court of appeals lacks jurisdiction over the purported appeal, and therefore, lacks the power to invoke Rule 2(b) ... in an effort to obtain jurisdiction of the case. Consequently, a court of appeals may not utilize Rule 2(b) ... to create jurisdiction where none exists, [citation omitted]

Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.1996).

After Verburgt was decided by the Texas Supreme Court, the Court of Criminal Appeals was specifically invited by the Austin Court of Appeals to re-examine Olivo. Williams v. State, 957 S.W.2d 949, 950 (Tex.App. — Austin 1997, no pet.). The Court of Criminal Appeals did not accept the invitation.

Given the strength of the language used by the Court of Criminal Appeals directly on the issue, the recency with which they have reaffirmed their holding, the refusal to accept the invitation to reconsider their holding in light of the Texas Supreme Court’s holding in Verburgt and the Texas Supreme Court’s recognition in Verburgt of the difference between the approaches in civil and criminal cases, we do not believe we are in the position to harmonize the differing constructions given the rules of appellate procedure in civil and criminal cases by the State’s two high courts. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); Johnson v. State, — S.W.3d-,-, No.1915-98, slip op. at 18, 2000 WL 140257 (Tex.Crim.App. February 9, 2000).

Fowler’s notice of appeal was untimely according to Rule 26. We are without jurisdiction to consider the merits of his appeal. See Slaton, 981 S.W.2d at 209; Olivo, 918 S.W.2d at 523. The State’s motion to dismiss is granted. Fowler’s appeal is dismissed for want of jurisdiction.


author: TOM GRAY, Justice.

text:
    James Rupert HUGHES, Appellant, v. The STATE of Texas, Appellee.
    No. 10-00-043-CR.
    Court of Appeals of Texas, Waco.
    March 22, 2000.
    Joy L. Alexander, Hamilton, for appellant.
    B.J. Shepherd, Dist. Atty., Martin L. Peterson, Asst. Dist. Atty., Meridian, for appellee.
    Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
   OPINION

TOM GRAY, Justice.

A man was charged with the misdemeanor offense of Driving While Intoxicated. The county attorney dismissed the complaint against him. He was then indicted for felony DWI based on the same conduct. Is the State barred from prosecuting the felony because of the previous dismissal? No. The judgment of the trial court is affirmed.

Background

In July of 1999, James Rupert Hughes was charged by information and complaint with the misdemeanor offense of Driving While Intoxicated. A notice was sent to Hughes requiring his appearance before the County Court of Hamilton County for docket call on September 14, 1999. Sometime before the 14th, Hughes and his bondsman met with the county judge to discuss the merits of Hughes’s case. The State was not present for this meeting. The county judge informed the county attorney, after his discussions with Hughes, that he believed Hughes’s story and believed the case ought to be dismissed. The county attorney drew up a dismissal, marking “insufficient evidence” as the reason for dismissal, and presented it to the county judge. It was signed on September 13,1999.

On September 17, 1999, the grand jury returned an indictment against Hughes for the same conduct of Driving While Intoxicated. Evidence was presented that Hughes had been twice convicted of driving while intoxicated. These prior convictions enhanced the offense to a third degree felony. Tex. Pen.Code Ann. § 49.09 (Vernon Supp.2000).

Hughes subsequently filed an Application for Writ of Habeas Corpus with the District Court of Hamilton County. The writ was issued, and a hearing was held on the merits of Hughes’s claim. After both parties presented arguments, testimony and briefs, the district court denied Hughes’s application by letter on December 8, 1999. The court signed an order denying relief on January 5, 2000. Hughes timely appealed the denial to this Court and brings two issues for review. See Ex parte Bui, 983 S.W.2d 73, 74 (Tex. App. — Houston [1st Dist.] 1998, pet. ref d); see also Tex.R.App. P. 31.

Jurisdiction

Although the parties do not raise any jurisdictional concerns, we will address our jurisdiction to consider this appeal. It is now settled that an appeal from a denial of relief after the issuance of a pretrial writ of habeas corpus where the defendant has alleged that a trial on the merits will subject the defendant to double jeopardy is appropriate. Stephens v. State, 806 S.W.2d 812, 814 (Tex.Crim.App.1990); Ex parte Brown, 925 S.W.2d 111, 112 (Tex.App. — Amarillo 1996, no pet.). That being so, a defendant may appeal a district court 'order denying relief on the merits of his habeas claim. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.1991). However, no appeal lies from the refusal to issue a writ of habeas corpus unless the trial court, nevertheless, addressed the merits of the claim raised. Id. 869; Ex parte Gonzales, 12 S.W.3d 913, (Tex.App. — Austin 2000, n.p.h.).

The trial court stated by letter that Hughes’s application was denied. Because a writ was issued and the merits of the claim were addressed, we have jurisdiction to consider Hughes’s appeal. See Hargett, 819 S.W.2d at 869.

Double Jeopardy

In his first issue, Hughes claims that the district court erred in denying his requested relief because a trial of the felony offense is barred by the dismissal of the misdemeanor offense. The Code of Criminal Procedure provides that the State may dismiss a criminal action at any time as long as the judge presiding over the action consents to the dismissal. Tex.Code CRiM. Proc. art. 32.02 (Vernon 1989). It is well settled that the dismissal of a cause does not prevent the grand jury from returning a subsequent indictment charging the same transaction. Ex parte Williams, 379 S.W.2d 911, 912 (Tex.Crim.App.1964). This is especially so when the dismissal does not indicate that the cause was dismissed “with prejudice.” Smith v. State, 979 S.W.2d 379, 381 (Tex.App. — Amarillo 1998, no pet.).

The dismissal of the misdemeanor cause does not indicate that it was dismissed “with prejudice.” Therefore, the dismissal is not a bar to a subsequent indictment and prosecution of the felony cause. Hughes’s first issue is overruled.

Collateral Estoppel

In his second issue, Hughes contends that the State is collaterally es-topped from prosecuting the felony cause. Hughes did not present this argument to the district court in either his written application for habeas corpus, his arguments or his brief. He has not preserved his complaint for our review. See Tex.R.App. P. 33.1. His second issue is overruled.

Conclusion

Having overruled Hughes’s two issues, we affirm the judgment of the trial court.

Hughes’s Motion for Order Staying Further Proceedings in Trial Court During Pendency of Appeal is hereby dismissed as moot.

      . This meeting was prior to the date of the docket call. It was without notice to or opportunity to be heard by the State and its witnesses. Under these circumstances, it was not, and could not be, a trial on the merits at which jeopardy would attach. See Ex parte George, 913 S.W.2d 523, 525 (Tex.Crim.App. 1995). From the record before us, this appears to have been a questionable ex-parte communication.