author: PER CURIAM.

text:
    FROST NATIONAL BANK, Petitioner, v. L & F DISTRIBUTORS, LTD., Respondent.
    No. 04-0074.
    Supreme Court of Texas.
    May 27, 2005.
    David M. Gunn, Russell S. Post, Beck, Redden & Secrest, L.L.P., Houston, Frank Weathered, Dunn Weathered Coffey Rivera Kasperitis & Rodriguez, P.C., Corpus Christi, Daniel H. Byrne, Fritz Byrne Head & Harrison, LLC, Austin, Francisco Enriquez, Law Offices of Frank Enriquez, McAllen, for Petitioner.
    Charles C. Murray, Lisa Powell, Atlas & Hall, L.L.P., McAllen, for Respondent.
    Karen Sue Neeley, John Mark Heasley, Texas Bankers Association, Austin, for Amicus Curiae.
   PER CURIAM.

This case involves the interpretation of a term equipment-lease agreement with a purchase option provision. The lessee attempted to exercise the purchase option and buy the equipment a little over a year into the five-year lease term, but the lessor refused, contending that the contract only allowed the lessee to purchase the equipment when the lease term ended. The trial court and the court of appeals agreed with the lessee’s interpretation, but we agree with the lessor’s. Accordingly, we reverse the court of appeals’ judgment, render judgment in part for the lessor, and remand the case to the trial court for further proceedings.

Frost National Bank purchased fourteen new delivery vehicles and leased them to Williams Distributors, Inc., a beer distributor. Frost and Williams entered into a sixty-month equipment lease agreement. The lease’s purchase option provision, known as a terminal rental adjustment clause, or TRAC, gave the lessee (Williams) the right to purchase the vehicles by giving the lessor (Frost) ninety days’ written notice and provided for payment to be made “on the last day of [the lease’s] Expiration [in] an amount in cash equal to the then Fair Market Value as hereafter defined in this section, of such Equipment.” The agreement then clarified that the lessor would collect an amount equal to twenty percent of the original invoice price of the vehicles when they were sold, whether to the lessee or to a third party; specifically, if the vehicles were sold to a third party, the lessor would pay the lessee any proceeds in excess of that amount, and, should the lessor receive less than the twenty percent from the sale, the lessee would owe the difference as a final rental payment.

Just over a year into the lease term, Williams assigned the lease, with Frost’s consent, to L & F Distributors, Inc., another beer distributor. Shortly thereafter, L & F notified Frost of its intent to exercise the purchase option. Before Frost responded, L & F sued Frost for a declaratory judgment, and L & F later amended its petition to add a claim for specific performance. L & F also sent Frost a letter with a payment of $169,874.99, which amounted to twenty percent of the original invoice price of the vehicles. Frost rejected and returned L & F’s payment, refusing to sell the vehicles until the last day of the lease term, and also counterclaimed for declaratory relief and breach of contract when L & F stopped paying rent on the vehicles. The parties agreed to narrow the scope of the dispute to the declaratory judgment requests and to limit Frost’s claim for damages. Both parties filed motions for summary judgment.

The trial court partially granted L & F’s motion for summary judgment and denied Frost’s motion, declaring that Frost breached the lease agreement by refusing to sell the vehicles when L & F tendered payment. The trial court also awarded L & F its attorney’s fees. The court of appeals affirmed, holding that the lease agreement was unambiguous and allowed L & F, as lessee, to purchase the vehicles with proper notice at any time on or before the end of the term. 122 S.W.3d 922, 933.

In construing a contract, we must ascertain and give effect to the parties’ intentions as expressed in the document. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003); Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex.2000). We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement. Webster, 128 S.W.3d at 229. We construe contracts “from a utilitarian standpoint bearing in mind the particular business activity sought to be served” and “will avoid when possible and proper a construction which is unreasonable, inequitable, and oppressive.” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987). If, after the pertinent rules of construction are applied, the contract can be given a definite or certain legal meaning, it is unambiguous and we construe it as a matter of law. Webster, 128 S.W.3d at 229. On the other hand, a contract is ambiguous if it is susceptible to more than one reasonable interpretation. Id.

The following provisions of the lease agreement, including the purchase option provision discussed above, are particularly relevant to the parties’ dispute:

MASTER EQUIPMENT LEASE AGREEMENT
Section 2. Terms; Rental; Unconditional Obligations; Security.
A. The lease of each item shall begin on the date of the related Schedule (the “Acceptance Date”) and end on the Expiration Date specified in the Schedule (the “Expiration”) or on the date of any earlier or later termination hereunder (the “Termination”).
LEASE SCHEDULE TO MASTER EQUIPMENT LEASE AGREEMENT
C. Term Expiration. (60) Sixty months (the “Expiration” or “Expiration Date”).
Lease Schedule to Master Equipment Lease Agreement Optional Provisions
Section 3. Purchase; Terminal Rental Adjustment
A. Provided no Event of default shall have occurred and then be continuing, Lessee shall have, by giving not less than ninety (90) days prior written notice to Lessor, the right to purchase all but not less than all the Equipment on or before the Expiration. Purchase shall be made by paying to Lessor on the last day of such Expiration an amount in cash equal to the then Fair Market Value as hereafter defined in this section, of such Equipment....

The court of appeals held that the purchase option provision (section 3(A) of the Optional Provisions) is unambiguous. 122 S.W.3d at 931. Specifically, the court of appeals noted that the first sentence allows L & F to buy the vehicles either on or •before the expiration of the lease, the only qualifications being that L & F cannot be in default,' must buy all the vehicles, and must give Frost at least ninety days’ notice of the purchase. Id. The court of appeals then held that the second sentence, which requires payment to be made “on the last day of such Expiration,” does not create an ambiguity or cah for payment only at the end of the sixty-month lease term. Id.

Were we to consider the purchase option provision in isolation, we might agree with the court of appeals’ reading. However, when both sentences of the provision are properly considered in conjunction with each other and the rest of the agreement, particularly the contractual definition of the term “Expiration,” the agreement unambiguously allows L & F to purchase the vehicles only at the end of the sixty-month lease term.

The court of appeals ignored pertinent language in the lease schedule when it held that, should L & F choose to exercise the purchase option before the end of sixty months, the lease would simply expire and payment would be due at the time of purchase. Id. The agreement specifically states that the lease ends on the “Expiration” or “Expiration Date,” which occurs at sixty months. A different contractual term, “Termination,” describes the agreement’s being terminated on an earlier or later date. By calling for payment “on the last day of such Expiration [of] an amount in cash equal to the then Fair Market Value,” the agreement provides that, should L & F give the requisite notice of its intent to exercise the purchase option, it will pay Frost at the end of the sixty-month lease term the then-fair market value of the vehicles, which will effectively come out to twenty percent of the invoice price. To reach the court of appeals’ conclusion requires either substituting the word “Termination” for “Expiration” in the purchase option provision or amending the contractual definition of “Expiration,” neither of which is appropriate in construing an agreement.

In addition, L & F’s and the court of appeals’ construction is “unreasonable, inequitable, and oppressive.” Reilly, 727 S.W.2d at 530. Such a construction allows the lessee to terminate the lease and purchase the vehicles for the same price (twenty percent of the original invoice price) at any point during the five-year lease term with the requisite notice. At the lessee’s discretion, then, the lessor would essentially have to forgo almost the entire rental value of the equipment and sell it almost new for twenty percent of its value, the same price it would receive for selling the equipment at the end of the lease term after collecting rent on it for sixty months. Bearing in mind that our primary goal is to ascertain the intent of the parties when they entered into the agreement, we find such a construction unreasonable. Because there is only one reasonable interpretation of the lease, we construe it as a matter of law.

We hold that the lease is unambiguous and provides that, while the lessee may give notice at any time during the lease term that it intends to exercise the purchase option, the lessee can actually purchase the vehicles only at the lease’s expiration, which occurs sixty months after the lease term begins. Accordingly, without hearing oral argument, Tex.R.App. P. 59.1, we reverse the court of appeals’ judgment, render judgment for Frost on its declaratory judgment claim, and remand the case to the trial court for further proceedings consistent with this opinion.

      . The parties actually entered into two essentially identical agreements, one concerning eight of the vehicles and one concerning the other six, but for simplicity we will refer to them as a single agreement.

      . The court of appeals also affirmed the trial court's denial of Frost's motion to transfer venue. 122 S.W.3d at 927-29. Frost does not challenge the venue ruling in this Court.

      . Frost also argues that the Uniform Commercial Code, as adopted in Texas, allows us to consider course of dealing, course of performance, and usage of trade to "explain or supplement” the lease. See Tex. Bus. & Com. Code § 2A.202. Because the plain language of the contract is clear and supports Frost’s interpretation, we need not consider such evidence for explanatory purposes.


source: Caselaw Access Project

license: Public Domain

text:
    In re Jim GAWERC, Relator.
    No. 04-1044.
    Supreme Court of Texas.
    May 27, 2005.
    Shawn Casey, Law Office for Shawn Casey, Houston, for Relator.
    Jim Gawerc, Houston, pro se.
    Glenn A. Lilly, Houston, for Real Party.
    Ingrid Philipson, Houston, pro se.
    Tommy Thomas, Houston, pro se.
   PER CURIAM.

In this original habeas corpus proceeding, petitioner Jim Gawerc contends his civil contempt imprisonment is illegal because he is unable to post the $50,000 child support bond required for his release. Because Gawerc conclusively established his inability to comply, we order his release.

The trial court held Gawerc in criminal and civil contempt for failing to comply with the trial court’s child support modification order that required Gawerc to pay $750 in child support and post a $50,000 child support bond. The trial court then ordered Gawerc to pay $2,400 in attorney’s fees and suspended the civil and criminal contempt sentences. When Gawerc failed to comply with the commitment suspension order, the trial court revoked the suspensions and ordered him to jail for both criminal and civil contempt. Gawerc served his criminal contempt sentence and paid the $750 back child support. He also tendered a check to opposing counsel for the $2,400 in attorney’s fees; therefore, the only remaining condition for his release is the $50,000 bond. The court of appeals denied Gawerc’s petition for habe-as corpus relief, and Gawerc remained in jail under the civil contempt order until this Court released him on bond pending consideration of the habeas corpus petition.

Texas law is clear that a petitioner may not be confined for civil contempt unless he or she has the ability but refuses to perform the conditions for release. Ex parte Rojo, 925 S.W.2d 654, 655 (Tex.1996); Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). “We treat the contempt order as void if the evidence offered at the hearing conclusively establishes that at the time of the contempt hearing relator did not have, and had no source from which he might be expected to obtain [the money required to purge himself of contempt].” Rohleder, 424 S.W.2d at 892.

At the trial court’s de novo commitment hearing, Gawerc conclusively established the following: (1) the bond must be one hundred percent collateralized by cash or a bank line of credit; (2) his only source of income is from his private law practice; (3) he has no contingent fee cases, no accounts receivable, and no ability to generate income from jail; (4) he has access to approximately $500 cash and his other assets are encumbered by a federal tax lien in excess of $3.9 million; and (5) he knows of no other source from which he can borrow the $50,000 necessary to secure the bond. Gawerc’s mother, who had offered to post the $50,000 at an earlier date, is no longer willing to loan him the money. Although opposing counsel questioned Gaw-erc at length about alleged suspicious transfers of real estate prior to the date of the first contempt order, counsel did not offer any evidence that the transfers were fraudulent, that Gawerc still possesses any proceeds from the sales, or that the value of any assets Gawerc presently owns or has access to exceeds the federal tax lien. Nothing in the evidence suggests Gawerc had the ability to post the child support bond at the time of the trial court’s commitment hearing. See Rojo, 925 S.W.2d at 656 (prior ability to pay may be relevant to a criminal contempt sanction but not to whether the contemnor had the ability to purge himself of civil contempt). Based on the uncontroverted evidence, Gawerc conclusively proved that at the time of the commitment hearing, he did not have the ability to purge himself of civil contempt.

Accordingly, without hearing oral argument, Tex.R.App. P. 52.8(c), we grant Jim Gawerc’s petition for writ of habeas corpus and order him discharged from custody.

      . Gawerc challenged the validity of the bond requirement in a prior court of appeals proceeding, In re Gawerc, 01-03-00809-CV, 2004 WL 98591 (Tex.App.-Houston [1st Dist.] Jan. 21, 2004, orig. proceeding), and in a habeas petition which this Court denied, In re Gawerc, 04-0786 (Tex. Sept. 3, 2004, order). Gawerc has not raised the issue again in this case nor has he challenged whether the bond requirement is enforceable by contempt.

      . In re Gawerc, 01-04-01179-CV, 2004 WL 2611498 (Tex.App.-Houston [1st Dist.] Nov. 18, 2004, orig. proceeding).


text:
    In re FORD MOTOR COMPANY, Relator.
    No. 05-0374.
    Supreme Court of Texas.
    May 27, 2005.

      Michael W. Eady, Thompson, Coe, Cousins & Irons, L.L.P., Jose Santiago Solis, Harlingen, Craig A. Morgan, Austin, and Jaime A. Saenz, Rodriguez, Colvin Chaney & Saenz, L.L.P., Brownsville, for Relator.
    Michael Matthew Guerra, Mikal C. Watts, John Gregory Escamilla, Watts Law Firm, L.L.P., McAllen, Thomas O. Matlock Jr., College Station, TX, for Real Party.
    J. Michael Myers, Ball & Weed, P.C., San Antonio, for other.
   PER CURIAM.

On May 28, 2004, Robin Fuentes, her husband, and her two children were involved in a car accident. Fuentes suffered serious injuries that rendered her a quadriplegic. Less than three months later, the Fuentes family sued Ford Motor Company, Goodyear Tire & Rubber Company, and the tire repair shop that installed tires on the pick-up truck for damages arising from an alleged tire failure that caused the truck to roll over. The case was set for trial to commence on May 16, 2005, less than nine months after it was filed. On April 1, 2005, Ford filed a motion for legislative continuance under Section 30.003 of the Texas Civil Practice and Remedies Code. On April 21, 2005, the trial court held a hearing on the motion. Four days later, the trial court denied the motion and set the case for trial on May 31, 2005. The court of appeals denied Ford’s petition for writ of mandamus, and on May 13, 2005, Ford filed its petition with this Court.

To be entitled to mandamus relief, Ford must show that the trial court committed a clear abuse of discretion and that it has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court abuses its discretion if “ ‘it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law’ ” or if it clearly fails to correctly analyze or apply the law. Walker, 827 S.W.2d at 839, 840 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). Although this Court has acknowledged that the second requirement for mandamus relief “has no comprehensive definition,” we have explained that determining whether a party has an adequate remedy by appeal requires a “careful balance of jurisprudential considerations” that “implicate both public and private interests.” In re Prudential, 148 S.W.3d at 136. “When the benefits [of mandamus review] outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.” Id.

Section 30.003 of the Texas Civil Practice and Remedies Code provides that a court shall grant a motion for continuance if an attorney representing a party is a member of the legislature and will be attending a legislative session. Specifically, the statute provides as follows:

(a) This section applies to any criminal or civil suit, including matters of probate, and to any matters ancillary to the suit that require action by or the attendance of an attorney, including appeals but excluding temporary restraining orders.
(b) Except as provided by Subsections (c) and (c — 1), at any time within 80 days of a date when the legislature is to be in session, at any time during a legislative session, or when the legislature sits as a constitutional convention, the court on application shall continue a case in which a party applying for the continuance or the attorney for that party is a member or member-elect of the legislature and will be or is attending a legislative session. The court shall continue the case until 80 days after the date on which the legislature adjourns.
(c) Except as provided by Subsection (c — 1), if the attorney for a party to the case is a member or member-elect of the legislature who was employed on or after the 30th day before the date on which the suit is set for trial, the continuance is discretionary with the court.
(c-1) If the attorney for a party to any criminal case is a member or member-elect of the legislature who was employed on or after the 15th day before the date on which the suit is set for trial, the continuance is discretionary with the court.
(d) The party seeking the continuance must file with the court an affidavit stating the grounds for the continuance. The affidavit is proof of the necessity for a continuance. ’ The affidavit need not be corroborated.
(e) If the member of the legislature is an attorney for a party, the affidavit must contain a declaration that it is the attorney’s intention to participate actively in the preparation or presentation of the case and that the attorney has not taken the case for the purpose of obtaining a continuance under this section.
(f) The continuance provided by Subsection (b) is one of right and may not be charged against the party receiving it on any subsequent application for continuance.

Tex. Civ. Prac. & Rem.Code § 30.003(a)-(f). The statute provides that when a lawyer-legislator is retained more than thirty days before the date a civil case is set for trial, a trial court lacks discretion to deny a properly requested motion for legislative continuance. Id. § 30.003(b), (c); see also Waites v. Sondock, 561 S.W.2d 772, 776 (Tex.1977); Collier v. Poe, 732 S.W.2d 332, 343, 346 (Tex.Crim.App.1987) (analyzing previous version of statute).

' [5] In Waites v. Sondock, this Court recognized a constitutional limitation on the mandatory nature of the legislative continuance. 561 S.W.2d at 776. In Waites, a mother initiated a contempt proceeding to compel her former husband to comply with a child support order. Id. at 772. The husband’s lawyer filed a motion for legislative continuance with supporting affidavit, which the mother opposed. She argued that the child support payments were “critical to her ability to feed and support her children.” Id. at 774. This Court held that requiring mandatory continuances when the party opposing the continuance “faces irreparable harm from the delay in enforcing existing rights” violates the due process clause of the Fourteenth Amendment of the United States Constitution and Article I, Sections 13 (open courts) and 19 (due process) of the Texas Constitution. Id. at 773. However, the Court emphasized the limited nature of its holding: “a legislative continuance is mandatory except in those cases in which the party opposing the continuance alleges that a substantial existing right will be defeated or abridged by delay.” Id. at 776. When a party opposes a legislative continuance in such circumstances, the trial court must conduct a hearing on the allegations and deny the motion if the allegations are shown to be meritorious. Id. Subsequently, the Court of Criminal Appeals and several lower courts of appeals have addressed the scope of the Waites exception to mandatory legislative continuances, but we have not. See, e.g., Collier, 732 S.W.2d at 344 (holding that the Waites exception cannot be invoked by the prosecutor in a criminal proceeding); In re Starr Produce Co., 988 S.W.2d 808, 811-12 (Tex.App.San Antonio 1999, orig. proceeding) (holding that loss of attorney’s services because of his inability to continue representation through the new trial date did not create the type of irreparable harm described in Waites); Amoco Prod. Co. v. Salyer, 814 S.W.2d 211, 213 (Tex.App.Corpus Christi 1991, orig. proceeding) (holding that the harm caused by lost business opportunities did not “rise to the level of a due process violation”); Condovest Corp. v. John Street Builders, Inc., 662 S.W.2d 138, 141 (Tex.App.Austin 1983, no writ) (concluding that inability to convey title to real property was “clearly a substantial right” protected by the Waites exception).

Ford’s motion for a legislative continuance meets the requirements of the statute. Representative Jim Solis’s affidavit states that he is a member of the Texas House of Representatives, that the session extends from January 11, 2005 through May 31, 2005, and that he will be attending the legislative session. See Tex. Civ. Prac. & Rem.Code § 30.003(d), (e). Solis also stated that he represents Ford and intends to participate actively in the preparation and presentation of the case. See id. Finally, the affidavit also declares that Solis did not take this case for the purpose of obtaining a continuance under Section 30.003 of the Texas Civil Practice & Remedies Code. See id. Because Ford’s motion was filed more than thirty days before the scheduled trial date and met the statutory requirements, the trial court was without discretion to deny the motion unless Fuentes established her entitlement to an exception. See id. § 30.003(b), (c), (f); Waites, 561 S.W.2d at 776.

Fuentes opposed the motion, essentially contending that because her participation in a comprehensive rehabilitation services program with the Texas Department of Assistive and Rehabilitation Services will conclude soon, any continuance will prevent access to needed medical care. Fuentes argues that she has an “existing right to rehabilitation and medical care” that constitutes a “substantial existing right” under our decision in Waites. Additionally, Fuentes argues that granting the continuance in this case violates her rights to access the court system. To support these contentions, Fuentes attached the affidavits of her husband, Robert Fuentes, and Dr. Joe Gonzales.

Robert Fuentes’s affidavit explains that his wife has been a quadriplegic since the accident and requires constant medical attention and therapy. He also states that he and his wife recently received a letter from the Texas Department of Assistive and Rehabilitative Services explaining that the temporary funding provided for her treatment will soon expire. The letter is attached to the affidavit. Finally, Robert Fuentes explains that he is not qualified to provide the treatment that his wife requires. He does not indicate when the current funding ends, whether other funding arrangements have been made, or whether other funding sources are available.

In his affidavit, Dr. Gonzales states that he is familiar with the condition of Fuentes and the current funding source of her medical treatment. He explains that “prompt, consistent, and continued rehabilitation is essential to maximize recovery for persons with spinal injuries.” He further opines that “if [Fuentes] discontinues her treatment, which will happen in the near future unless she obtains additional funding, she will be permanently and irrevocably harmed.” He does not indicate specifically when the current funding ends or whether additional funding has been obtained.

In this case, the trial court made nine specific findings in its order denying Ford’s motion for legislative continuance, apparently based on the exception this Court described in Waites:

I.Ford Motor Company retained Representative Jim Solis on or about April I. 2005, approximately 45 days before the May 16, 2005 trial, and he has averred that he intends to play a substantial role in the case and that he is not appearing for the purpose of delay.
II. Ford Motor Company moved for a continuance on the same dáte Rep. Solis appeared in this case.
III. Robin Fuentes sustained disabling back injuries in the incident made the basis of this suit, which injuries require access to round the clock medical care and rehabilitative therapy.
IV. Robin Fuentes presently has a right and access to medical and rehabilitative services to aid in the treatment for, and rehabilitation from, her injuries.
LISTNUM Document 1 IV. Robin Fuentes also has Due Process rights under the United States and Texas constitutions, and she has a right to seek redress for her injuries pursuant to Texas Constitution Art. I, Section 13.
LISTNUM Document 1 1VI. .Robin Fuentes’ access to such medical treatment and rehabilitative therapy will be jeopardized should this case be continued from its present trial setting.
LISTNUM Document 1 1VII. Robin Fuentes will be irreparably harmed if her access to medical care and rehabilitative therapy Is discontinued.
LISTNUM Document 1 1VIII. Robin Fuentes’ constitutional right to redress and to Due Process will be violated if the Court grant [sic] a continuance based on Rep. Jim Solis’ legislative service.
LISTNUM Document 1 1IX. The Court has considered the contents of the court’s file, including the affidavit of Robert Fuentes, the affidavit of Dr. Joe Gonzales, and correspondence from the Texas Department of Assistive and Rehabilitative Services.

Fuentes claims that the Waites exception applies because she has a right to “access to medical and rehabilitative services to aid in the treatment for, and rehabilitation from, her injuries.” But she does not have a right to have Ford pay for those services unless or until mandate to that effect issues after trial, judgment, and possible appeals. Although we sympathize with the disabling injuries from which Fuentes suffers, relief from a mandatory legislative continuance requires a higher showing than the record in this case makes. She has no substantial existing right to access to medical care that is enforceable against Ford. Her claims against Ford arise from alleged defects of a pick-up truck, not for improperly denying her access to medical care. If she succeeds in obtaining a favorable final judgment against Ford, then she will have an existing right that could be subject to the Waites exception. Until then, she has a right to access the court system to pursue her claims against Ford. See Sax v. Votteler, 648 S.W.2d 661, 665-66 (Tex.1983). Continuing this case, which has been pending only a few months, in accordance with the Legislature’s “determination that the interests of the people of the State will be best served by the attendance of legislator-attorneys at legislative sessions” does not violate the due process clause of the Fourteenth Amendment of the United States Constitution or Article I, Sections 13 (open courts) and 19 (due process) of the Texas Constitution. Waites v. Sondock, 561 S.W.2d 772, 774 (Tex.1977). Because the constitutional exception in Waites does not apply, the trial court had no discretion to deny the motion for continuance.

We recognize that some tension exists between Article II, Section 1 of the Texas Constitution, which divides the powers of the government into three distinct branches, and a legislative enactment that makes mandatory what is typically left to judicial discretion. Gov’t Servs. Ins. Underwriters v. Jones, 368 S.W.2d 560, 564-67 (Tex.1963). But the tension is not all on one side. Given the relative infrequency of legislative sessions in Texas and the key roles played by members who are attorneys, a serious constitutional crisis could arise if a court in a remote part of the state could force a legislator to trial the moment a legislative session ends, as the trial court planned to do here. Enforcing legislative continuances is also consistent with the constitutional protection afforded legislators to attend legislative sessions. Except in cases of treason, felony, or breach of the peace, the Texas Constitution itself protects legislators from arrest while traveling to or attending such sessions. Tex. Const, art. Ill, § 14. As that provision shows, the legislative privilege is not absolute, but trial courts construing the Waites exception must require a higher showing of impairment of an opposing party’s constitutional rights than the trial court did here.

As our sister court summarized, a mandatory legislative continuance “usually serves a dual purpose of encouraging good men and women to sacrifice their time in the interest of good government and of protecting a party to a law suit whose attorney may be serving in the Legislature.” Collier v. Poe, 732 S.W.2d 332, 334 (Tex.Crim.App.1987). Without such a device, a lawyer-legislator could be forced to decide between fulfilling the duty owed to a client and the duty owed to constituents to participate in a legislative session. The consequences of that decision — possibly nonparticipation in a legislative session' — could not be remedied on appeal. To give full effect to the Legislature’s policy decision regarding legislative continuances, we conclude that a party has no adequate remedy by appeal when a trial court abuses its discretion by denying a motion for legislative continuance. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124,136-37 (Tex.2004).

Pursuant to Texas Rule of Appellate Procedure 52.8(c), we issue this opinion without hearing oral argument and conditionally grant a writ of mandamus directing the 139th Judicial District Court of Hidalgo County, Texas, to grant the motion for legislative continuance. That writ will issue only if the district court fails to act in accordance with this opinion.

      . Although Waites interprets a previous version of the legislative continuance statute, the analysis in Waites is equally applicable to the current statute. Act of May 28, 1973, 63rd Leg., R.S., ch. 428, § 1, 1973 Tex. Gen. Laws 1130, 1130-31 (former Tex.Rev.Civ. Stat. art. 2168a), repealed and recodified by Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9, 10, 1985 Tex. Gen. Laws 3242, 3268-69, 3322 ("This Act is intended as a recodification only, and no substantive change in the law is intended by this Act.”), amended by Act of May 27, 1991, 72nd Leg., R.S., ch. 304, § 3.13, 1991 Tex. Gen. Laws 1290, 1321 (adding the requirement that "the attorney has not taken the case for the purpose of obtaining a continuance”), amended by Act of April 10, 2003, 78th Leg., R.S., ch. 9, § 1, 2003 Tex. Gen. Laws 10, 10-11 (extending the statute's application to members-elect, altering the time period for which a continuance is mandatory, and distinguishing between criminal and civil proceedings) (current version at Tex. Civ. Prac. & Rem.Code § 30.003(a)-(f)).

      . The program, created by legislative mandate, provides temporary funding for medical services to qualifying patients with traumatic spinal cord or brain injuries. Tex. Hum. Res. Code § 111.060; 40 Tex. Admin. Code § 107.1201. The total number of hours of certain types of therapy paid with program funds may not exceed 120 hours, and Fuentes’s treatment is nearing this limitation. 40 Tex. Admin. Code § 107.1209(2)(D).


author: Justice O’NEILL

text:
    Russell POWELL, Petitioner, v. Honorable Judge Earl STOVER, III, Respondent.
    No. 03-1154.
    Supreme Court of Texas.
    May 27, 2005.

      Jack Lawrence, Beaumont, Robert Larry Brooke, Silsbee, and Richard A. Spivey, Kingsport, TN, for petitioner.
    Martha Bevil Wright, Silsbee, for respondent.
    Ben K. Wexler, Greenville, TN, pro se.
   Justice O’NEILL

delivered the opinion of the Court.

This is an initial child-custody case in which both Texas and Tennessee claim jurisdiction. We must decide whether Texas is the child’s “home state” for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and thus whether the Texas trial court properly assumed jurisdiction over the case. We hold that, because the child lived in Tennessee with his parents for at least six consecutive months immediately before the child-custody proceeding was commenced, Texas is not the child’s home state and the trial court’s exei'cise of jurisdiction was improper. Accordingly, we conditionally grant the petition for writ of mandamus and order the trial court to stay this proceeding and communicate with the Tennessee court. If the Tennessee court does not determine that Texas is a more appropriate forum, the trial court shall dismiss this proceeding. The writ will issue only if the trial court does not comply.

I

In February 2001, Russell Powell moved from Texas to Tennessee to accept a new position with his employer. In May 2001, his wife, Sonia Powell, sold her house in Texas, closed her Texas bank accounts, and moved with the couple’s son, D.B.P., to Tennessee to join Russell. There, the couple leased a house with an option to buy. Within a week of her arrival in Tennessee, Sonia obtained a Tennessee driver’s license, opened a checking account with a Tennessee bank, and began applying for jobs. She and Russell enrolled D.B.P. in kindergarten. Sonia delivered newspapers for a short time and then began working at Wal-Mart in September 2001. On April 24, 2002, Sonia moved back to Texas and took D.B.P. with her. At the time, she was seven months pregnant with D.T.P., who was later born in Texas.

Approximately two weeks after arriving in Texas, on May 6, 2002, Sonia filed for divorce in Hardin County, Texas, requesting managing conservatorship of D.B.P. She asserted in her petition that she had been a domiciliary of Texas for the preceding six-month period and a resident of Hardin County for the preceding 90-day period. Sonia testified that she was born and raised in Texas, that she was “trying [Tennessee] out,” and that she did -not intend to reside permanently in Tennessee. On August 5, 2002, the trial court issued temporary orders appointing Sonia temporary managing conservator of D.B.P.

Russell filed for divorce in Tennessee two weeks after Sonia filed in Texas. The Tennessee court issued a temporary parenting plan on May 21, 2002, awarding custody of D.B.P. to Russell. The court also found that Tennessee “has jurisdiction over [D.B.P.] as the parties did not separate until April 22, 2002.”

Russell then filed in the Texas proceeding a plea in abatement and a motion to dismiss for lack of jurisdiction arguing that the “Tennessee Court secured service of citation first,” giving it “exclusive jurisdiction over this divorce action.” He further claimed that abatement and dismissal were required because neither he nor Sonia had been “a domiciliary of Texas for [the] six months ... preceding the filing of this suit [or] a resident of [Hardin] County for ninety days preceding this suit,” as required by the Texas Family Code. Tex. Fam.Code § 6.301.

The trial court denied Russell’s plea in abatement, stating in a letter to counsel: “This case involves a very close question of fact. The fact that both children were born in Texas and that the home state of the youngest child is clearly Texas are persuasive. The Motion for Abatement is denied.” The court also entered an order denying the motion to dismiss for lack of jurisdiction without explanation.

Russell sought mandamus relief, asking the court of appeals to vacate the trial court’s order and to transfer the case to the Chancery Court of Hawkins County, Tennessee. A divided court of appeals denied mandamus relief, holding that the trial court did not abuse its discretion in retaining jurisdiction because Texas was clearly D.T.P.’s home state, and there was “a fact issue on whether [Sonia’s] time spent" in Tennessee was a temporary absence” and thus whether Texas or Tennessee was D.B.P.’s home state. 121 S.W.3d 846, 847. Russell petitioned this Court, claiming the trial court lacked subject-matter jurisdiction over this custody dispute because, among other things,.Texas is not D.B.P.’s home state. Russell does not challenge the trial court’s jurisdiction over the dispute as to D.T.P., who has never lived anywhere but Texas.

II

In considering Russell’s petition, we focus on the trial court’s ruling. In re Meador, 968 S.W.2d 346, 350 (Tex.1998). A writ of mandamus is an appropriate means to require a trial court to comply with the UCCJEA’s jurisdictional requirements. See In re Forlenza, 140 S.W.3d 373, 379 (Tex.2004); Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.1994) (stating that mandamus is an appropriate remedy to resolve a jurisdictional dispute under the former Uniform Child Custody Jurisdiction Act). The question in this case, then, is whether the trial court abused its discretion in denying Russell’s motions to abate and dismiss. A trial court abuses its discretion if it fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Construction of the UCCJEA’s “home state” provision as codified in the Texas Family Code is a question of law that we review de novo. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003).

Ill

Effective September 1, 1999, Texas adopted the UCCJEA, which replaced the previously adopted Uniform Child Custody Jurisdiction Act (UCCJA). Act of Apr. 22, 1999, 76th Leg., R.S., ch. 34, § 1,1999 Tex. Gen. Laws 52 (codified at Tex. Fam.Code §§ 152.001-152.317). The UCCJA provided four bases for jurisdiction over a custody dispute, but did not prioritize one over the others. Act of May 2, 1983, 68th Leg., R.S., ch. 160, § 1, 1983 Tex. Gen. Laws 691, 693-94 (as amended), repealed by Act of Apr. 22, 1999, 76th Leg., R.S., ch. 34, § 1, 1999 Tex. Gen. Laws 52, 64-65. This often led courts in different states to simultaneously exercise jurisdiction in child-custody cases. The UCCJEA was designed, in large part, to remedy this situation by prioritizing home-state jurisdiction. Stoner, The Uniform Child Custody Jurisdiction and Enforcement Act (UC-CJEA) — A Metamorphosis of the Uniform Child Custody Jurisdiction Act (UCCJA), 75 N.D. L.Rev. 301, 313 (1999); House Comm, on Juvenile Justice and Family Issues, Bill Analysis, Tex. H.B. 797, 76th Leg., R.S. (1999) (stating that “this Act revises the child custody jurisdiction law to prioritize home state jurisdiction”); see In re Forlenza, 140 S.W.3d at 374-75 (discussing the UCCJEA in the context of continuing jurisdiction over custody matters). The Texas Family Code accordingly prioritizes home-state jurisdiction and provides in pertinent part that a court of this state has jurisdiction to make an initial child-custody determination only if

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state[.]

Tex. Fam.Code § 152.201(a)(1). Because this case involves an initial child-custody determination, and home-state jurisdiction has priority, the question presented is whether, on the date the proceeding was commenced, Texas or Tennessee was D.BJP.’s home state.

The Texas Family Code defines “home state” as

the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding. ... A period of temporary absence of a parent ... is part of the period.

Id. § 152.102(7). Russell asserts that this language creates a bright-line, six-month test focused on the child’s physical presence. Hence, in his view, D.B.P.’s ten-month stay in Tennessee with his parents confers home-state jurisdiction on the Tennessee court. But Sonia claims the proper analysis is not so simple. She argues that D.B.P.’s time in Tennessee was merely a “temporary absence” from Texas and that Texas remained D.B.P.’s home state throughout his stay in Tennessee because Sonia intended to be there only temporarily. We reject Sonia’s argument for a number of reasons.

First, Sonia’s argument presumes that her own intent should control and that Russell’s is irrelevant. But the Family Code’s definition of “home state” is the state “in which a child lived with a parent,” and Russell is a parent with whom D.B.P. undisputedly lived in Tennessee for over ten consecutive months preceding commencement of the custody dispute. Sonia’s premise, that she did not “reside” in Tennessee and therefore D.B.P. didn’t either, necessarily presumes that she is the only parent that the statute covers, which of course is not the case. Even if Sonia’s residence in Tennessee was temporary because she intended to return to Texas, as she claims, it is immaterial in determining whether Tennessee acquired home-state status through Russell.

Second, we believe that a test based on subjective intent — whether it examines the intent of the mother, the father, or the child — would thwart the UC-CJEA’s meaning and purpose. When interpreting statutes we try to give effect to legislative intent. Crown, Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000). In doing so, we look first to the plain and common meaning of the statute’s words. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). The Family Code defines “home state” as the state in which a child “lived” with a parent. Tex. Fam.Code § 152.102(7). The word “lived” strongly connotes physical presence. See Webster’s Third New International Dictionary 1323 (1961) (defining “live” as “to occupy a home”). We think it significant that the Legislature chose the word “lived” as opposed to “resided” or “was domiciled.” The test for “residence” or “domicile” typically involves an inquiry into a person’s intent. See Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex.1964) (“Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile.”). In our view, the Legislature used the word “lived” “precisely to avoid complicating the determination of a child’s home state with inquiries into the states of mind of the child or the child’s adult caretakers.” Escobar v. Reisinger, 133 N.M. 487, 64 P.3d 514, 517 (2003).

The purposes behind the UCCJEA further suggest that a child’s physical location is the central factor to be considered when determining a child’s home state. The UCCJEA was intended to make the determination of jurisdiction more straightforward. For instance, the comments to the original version of the UCCJEA, written by the National Conference of Commissioners on Uniform State Laws and adopted substantially unchanged by Texas, state that the UCCJEA should be interpreted to “[a]void jurisdictional competition and conflict with courts of other States,” to “[p]romote cooperation with the courts of other States,” to “[djiscourage the use of the interstate system for continuing controversies over child custody,” and to “[d]eter abductions of children.” Uniform Child Custody Jurisdiction & Enforcement Act § 101 cmt., 9 U.L.A. 657 (1999). The UCCJEA achieves this purpose by prioritizing home-state jurisdiction, which helps to avoid the jurisdictional competition and conflict that result when courts in different states determine jurisdiction based on subjective factors. See Welch-Doden v. Roberts, 202 Ariz. 201, 42 P.3d 1166, 1173 (Ct.App.2002). The UC-CJEA was thus intended to give prominence to objective factors. We believe that the UCCJEA should be construed in such a way as to strengthen rather than undermine the certainty that prioritizing home-state jurisdiction was intended to promote, and thus decline to apply a test to determine where a child “lived” based on the parties’ subjective intent. See Es-cobar, 64 P.3d at 517 (determining a child’s “home state” should not involve “inquiries into the states of mind of the child or the child’s adult caretakers”); see also In re Marriage of Schoeffel, 268 Ill.App.3d 839, 206 Ill.Dec. 59, 644 N.E.2d 827, 829 (1994) (stating that “the intent of the parties is not controlling for purposes of the [UC-CJA]”).

The trial court in this case was apparently persuaded by the fact that “both children were born in Texas and that the home state of the youngest child is clearly Texas.” The court of appeals was additionally persuaded by the fact that D.B.P. “was born in Texas and lived here until he was nearly five years old, when the family moved to Tennessee.” 121 S.W.Sd at 847. Thus, both courts effectively applied a test that considered the totality of the facts and circumstances to determine D.B.P.’s home state. At least one Texas court of appeals appeal’s to have adopted a similar approach. See In re Estes, 153 S.W.3d 591, 598 (Tex.App.-Amarillo 2004, no pet.) (considering factors such as the parents’ intent as well as other facts and circumstances in deciding where a child lived). Some courts from other jurisdictions have also adopted a similar approach. See, e.g., Chick v. Chick, 164 N.C.App. 444, 596 S.E.2d 303, 308 (2004) (deeming a totality of the circumstances approach “the most appropriate choice”); In re S.M., 938 S.W.2d 910, 918 (Mo.Ct.App.1997) (stating that “the totality of the circumstances test is best suited to adequately deal with the variety of situations which occur”). But a test based on the totality of the circumstances suffers from essentially the same weakness as a purely intent-based test; both seek to promote flexibility at the expense of the jurisdictional certainty that the home-state provision was intended to provide.

This does not mean that the UCCJEA’s purpose is intractable irrespective of the circumstances a particular case presents. Two other sections of the UCCJEA provide the flexibility needed to avert potential injustice once the trial court has determined the child’s home state. The first, section 152.208, states that if a court acquires jurisdiction “because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct,” then with certain exceptions “the court shall decline to exercise jurisdiction.” Tex. Fam.Code § 152.208. Thus, for example, were a state to acquire home-state jurisdiction through a parent’s illegal or improper actions, the court could decline to exercise jurisdiction. The second, section 152.207, is the inconvenient-forum provision; it allows the home-state court to defer jurisdiction if the court is an inconvenient forum under the circumstances and a court in another state would provide a more appropriate forum. Id. § 152.207; Tenn.Code Ann. § 36-6-222 (Tennessee’s version of the UCCJEA). In making such a determination, the home-state court may consider:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) the length of time the child has resided outside this state;
(3) the distance between the court in this state and the court in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
(5) any agreement of the parties as to which state should assume jurisdiction;
(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

Tex. Fam.Code § 152.207; see also Tenn.Code Ann. § 36-6-222. Applying a physical-presence test to determine home-state jurisdiction, then allowing that court to consider the forum’s relative convenience, creates jurisdictional certainty without diluting the significance of the underlying facts and circumstances presented in an individual case.

We therefore hold that in determining where a child lived for purposes of establishing home-state jurisdiction, the trial court must consider the child’s physical presence in a state. See Escobar, 64 P.3d at 517 (stating that the proper test “focuses on the historical fact of the child’s physical presence in a jurisdiction”); Schoeffel, 206 Ill.Dec. 59, 644 N.E.2d at 829-30 (looking solely to the duration of a child’s presence when determining home state). To the extent that In re Estes conflicts with our holding, we disapprove the decision. Estes, 153 S.W.3d at 598. D.B.P.’s physical presence in Tennessee with his parents for over ten months immediately before the commencement of this custody proceeding conclusively establishes that he “lived” in Tennessee and that Tennessee is D.B.P.’s home state under Texas’s version of the UCCJEA.

As we have said, the UCCJEA allows the court in a child’s home state to defer jurisdiction to a court of another state if the home state is an inconvenient forum under the circumstances and the other state would be a more appropriate forum. See Tex. Fam.Code § 152.207; Tenn.Code Ann. § 36-6-222. In this instance, D.B.P. has strong ties to Texas because he lived in Texas for five years before moving to Tennessee, and Texas is his brother’s home state. It would presumably be undesirable to require custody disputes to proceed in different states if one court can resolve all custody issues. But the question of whether Texas is a more appropriate forum than Tennessee is not for the Texas court to decide; it is a determination that must be made by a court in D.B.P.’s home state, which in this case is Tennessee.

IV

We conclude that the trial court abused its discretion in denying Russell’s request to abate these proceedings in favor of the Tennessee court. In a situation like this, when there are simultaneous custody proceedings in different states, the Family Code details the proper procedure:

If the [Texas trial] court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.

Tex. Fam.Code § 152.206(b). Here, Tennessee’s exercise of jurisdiction is “substantially in accordance with [the UC-CJEA]” because Tennessee is D.B.P.’s home state. Id. Accordingly, without hearing oral argument, Tex.R.App. P. 52.8(c), we conditionally grant the petition for writ of mandamus and order the trial court to stay this proceeding and communicate with the Tennessee court. If the Tennessee court does not determine that Texas is a more appropriate forum, the trial court shall dismiss this proceeding. The writ will issue only if the trial court does not comply.

      . Though the relator styled this case as a petition for review, he challenges the court of appeals' denial of mandamus relief and does not appeal from a final order. See Tex. Gov’t Code § 22.001. Therefore, we treat it as a petition for writ of mandamus in this Court as well.

      . In the court of appeals, Russell filed a motion arguing that Sonia falsified the residency requirements of section 6.301 and failed to provide sworn information about where D.B.P. lived as section 152.209 requires. Tex. Fam.Code §§ 6.301, 152.209. Sonia's actions, Russell claimed, amounted to unjustifiable conduct as described in section 152.208 and should have resulted in dismissal. Id. § 152.208. The court of appeals did not address these issues, and Russell asserts that we should remand this case to the court of appeals to consider them. Because of our holding today, we decline to remand these issues for consideration.


author: Justice BRISTER

text:
    MATAGORDA COUNTY APPRAISAL DISTRICT, Petitioner, v. COASTAL LIQUIDS PARTNERS, L.P., Respondent.
    No. 03-1200.
    Supreme Court of Texas.
    Argued Dec. 1, 2004.
    Decided May 27, 2005.

      Peter William Low, Austin, TX, for petitioner.
    James A. Porter, El Paso Corporation, Houston, TX, William Ikard, Mark Stephen Hutcheson, Laurie E. Ratliff, Teresa Ann Dahmus, Popp & Ikard LLP, Austin TX, for respondent.
    Robert Mott, Joseph T. Longoria, Per-due Brando Fielder Collins & Mott, Jeffrey J. Horner, Bracewell & Pattterson, L.L.P., Houston, TX, for amicus curiae.
   Justice BRISTER

delivered the opinion of the Court.

We must decide whether salt dome caverns created to store liquid hydrocarbons may be appraised and taxed separately from the surface land above them. The question has been here before, but we did not reach it in Coastal Liquids Transportation, L.P. v. Harris County Appraisal District because the taxpayer lacked capacity. Predictably, given the millions of tax dollars involved, the question has surfaced again.

In this case, the taxpayer Coastal Liquids Partners, L.P. challenged the Mata-gorda County Appraisal District’s valuation of the Hiltpold # 1 and Hudson # 3 caverns at almost $2 million in value for the tax years 1996 through 1999. The trial court granted judgment for the District, but the court of appeals reversed, finding the caverns could not be appraised separately from the surface above them. We reverse, and remand to the court of appeals.

I

We first must address the District’s jurisdictional challenge.

Since 1995, a person leasing property who is contractually obligated to reimburse the owner for ad valorem taxes can protest an appraisal in the owner’s place. It is undisputed that Coastal’s lease of these caverns from Texas Brine Corporation contains just such an obligation.

But the statute allows only one protest; the owner and the lessor cannot both do so. The District argues that the courts have no jurisdiction of Coastal’s claims because Texas Brine filed a protest concerning fourteen salt dome facilities, including the two it leased to Coastal. Texas Brine signed agreements with the District settling its protest.

First, we disagree that this is a jurisdictional question. It is true a taxpayer’s failure to pursue an appraisal review board proceeding deprives the courts of jurisdiction to decide most matters relating to ad valorem taxes. But there is no question there was such a proceeding here; the only question is whether there was more than one.

In the first instance, it is up to a local appraisal board to decide whether there has been more than one protest relating to the same property. While a board has no authority to change a settlement reached by a taxpayer and the chief appraiser, it certainly has the authority to take note of what property was included. By entering an order assessing the appraised value of the two caverns here in Coastal’s proceeding, the board impliedly rejected the District’s claim.

Appeal of an appraisal board ruling is by trial de novo. When Coastal appealed the board’s appraisal to the trial court, the District filed a plea to the jurisdiction. In response, Coastal introduced a tape transcript from the board hearing and testimony from some of the participants. While the transcript is imperfect due to the informal nature mandated for such hearings, it supports Coastal’s argument that Texas Brine orally limited its own protest and subsequent settlement to those for which it had to pay the taxes. A letter from Coastal’s counsel to Texas Brine also supports this conclusion.

Treating the District’s jurisdictional challenge as one attacking the legal sufficiency of the evidence to support the trial court’s judgment, we hold that the District failed to prove as a matter of law that there were duplicate protests concerning the same property.

II

According to the transcript of the appraisal board hearing, Coastal initially took the position that storage caverns like those here are not subject to ad valorem taxes at all. In this appeal, it takes the more moderate position that the caverns may be taxed, but only as “land” and as a part of the surface realty to which they are attached. Otherwise, Coastal argues, the District can improperly tax aspects of property that are inseparable, and perhaps double tax them. We address each argument separately.

A

The Property Tax Code defines “real property” as: (A) land; (B) an improvement; (C) a mine or quarry; (D) a mineral in place; (E) standing timber; or (F) an estate or interest in one of the above. In preparing its records, the Code requires appraisal districts to list separately (among other things) the appraised value of land, improvements, and separately taxable estates or interests. Obviously, a single tract may include several of these aspects of realty, or perhaps even all.

It has long been the case that at least some of these aspects of real property can be taxed separately even though all are part of the same surface tract. Thus, for example, in 1923 we held that an oil and gas lease was not personalty but an interest in realty that was separately taxable from the surface estate. This rule does not depend on whether each aspect is separately owned, as identical properties cannot be taxed differently depending on whether, for example, a mineral interest has been legally severed.

But in Gifford-Hill & Co. v. Wise County Appraisal District, we held that in some circumstances subsurface limestone cannot be appraised separately from the land immediately above it. Coastal urges us to make a similar ruling here. We agree that Gifford-Hill is dispositive, but not in the way Coastal suggests.

The Court’s concern in Gifford-Hill was that a blanket rule taxing limestone separately “would subject thousands of unsuspecting farmers and ranchers to increased tax liability and frustrate the Constitution’s intent ‘[t]o promote the preservation of open space land ... devoted to farm or ranch purposes.’ ” But we did not hold that subterranean resources could never be appraised separately from the surface; to the contrary, we remanded for the trial court to determine which part of the limestone in that case could be separately appraised.

Instead, Gifford-Hill recognized a distinction between limestone currently under production as part of a quarry, and lands containing limestone where extraction was merely a future possibility:

We agree that the term “quarry” means more than merely the excavation existing during the extraction of a source of supply or left after a source of supply has been extracted. However, the opening of a quarry on a tract of land does not automatically subject the entire tract to ad valorem taxation as a quarry. We recognize that a deposit of limestone may extend beyond the area from which limestone is presently being produced. Some adjacent land may be in the path of the quarry and its limestone deposit may reasonably be deemed to be producing and thus considered as part of the quarry. Also, if any phase of the operation of the quarry is conducted on surface land, such land may constitute part of the producing quarry. However, other land surrounding a quarry may not be included as part of the existing quarry even though the land’s value increases because the extent of the limestone is known with some certainty. The value of the land containing non-producing limestone should be determined by applying a per acre value to the number of acres covered by the interest rather than by an intrinsic price based upon the market price of the limestone per ton.

We remanded for the trial court to value separately the limestone that was part of a producing quarry (appraised at $6,000 per acre) and the limestone that was not (taxed at the open-space value of $57 per acre).

The reasoning in that case requires a different result under the facts in this one. The storage caverns here were not awaiting future development; they were and had been in active commercial use, separate and apart from whatever uses were taking place on the surface above. Evidence at trial indicated Coastal pays almost $500,000 annually to rent and use the caverns, and contractually agreed to pay any ad valorem taxes associated with them. Assessing these caverns separately from the surface does not burden any unsuspecting farmers or ranchers with tax liability for an asset unlikely to be exploited.

Coastal argues that separately assessing the storage caverns here could lead to separate assessment of a house and its scenic view or access to a beach. We agree that many aspects of property cannot be separately assessed from the value of the surface land, and that when the latter reflects the former a separate assessment would tax them twice.

But it is difficult to state a precise rule about what property can be separately assessed because of the multitude of possible circumstances and the hundreds of Tax Code provisions that may govern them. Perhaps the most that can be said is that each property should be appraised “based upon the individual characteristics that affect the property’s market value.” While the constitution requires that “[t]ax-ation shall be equal and uniform,” that mandate may render different appraisal methods appropriate in different circumstances. Because the circumstances here differ from those in Gifford-Hill, we apply the same reasoning but reach a different result.

B

Coastal also argues that the District’s listing of the storage caverns as “Improvements” for 1999 and as “Other” for previous tax years must be presumed to be double taxation. The argument appears to be that (1) the Property Tax Code requires property to be appraised in one of six mutually exclusive categories, (2) the only category applicable to these storage caverns is “land,” and thus (3) the additional categories used here must be double taxation as the caverns were already included in the “land” assessment. Though the trial court sitting as trier-of-fact found no evidence of any multiple or overlapping appraisal, Coastal insists that the statutory requirements mean that “no evidence of overlap is necessary.”

We disagree with each of these propositions. First, the Property Tax Code does not expressly require real property to be listed in the six categories used to define it. To the contrary, the Code explicitly requires separate records of the appraised value of land, improvements, and separate interests, but not of mines, minerals, or timber.

Further, some of the categories used to define real property clearly overlap. And in some cases, it is difficult to draw the line between these categories, as we struggled to do between “mineral in place” and “quarry” in Gifford-Hill.

It is true that in the latter opinion we referred somewhat skeptically to the appraisal district’s use of “a new category of taxable property, previously unknown in the law, entitled ‘rock reserve.’ ” But we certainly did not conclude that such property should escape taxation entirely because it was unclear which of the Code's appellations should apply. Indeed, such an interpretation would raise difficult constitutional questions.

We agree with Coastal that the statutory categories are important, and that appraisal districts generally should not abandon them in favor of creative alternatives. But the Code primarily requires that property “be described in the appraisal records with sufficient certainty to identify it.” “Ordinarily a description is sufficient when the property sought to be assessed may be identified from the description given.” So long as the District’s records gave Coastal notice of what property was included in each tax account (and thus some assurance that it was not included twice), including these caverns under an incorrect category would not exempt them from taxation.

Second, we disagree that the only category applicable to these caverns is “land.” The Property Tax Code defines “improvement” to include “a building, structure, fixture, or fence erected on or affixed to land.” While the undisturbed limestone involved in Gifford-Hill could not be characterized as an “improvement,” the caverns here can.

Generally, a “structure” is “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” Salt-dome storage caverns may exist naturally, but the ones here were clearly man-made. There was evidence that more than $1 million was spent to leach salt from them, creating storage space for about 6 million barrels of liquid hydrocarbons. Though the parties disputed whether these costs should be attributed to salt extraction or cavern creation (as the one accomplishes the other), the annual rent of almost $500,000 shows that the resulting “structure” had substantial value.

In the valuation case that we reversed for lack of capacity, the First Court of Appeals held that a storage cavern could not be an “improvement” because the Natural Resources Code defines a “salt dome storage facility” as both the formation itself and buildings and equipment used to operate it. In the first place, this imports a definition from a different statute adopted for different purposes. But even if that were appropriate, by defining the facility to include both the cavern and associated fixtures (Coastal concedes the latter may be taxed as an “improvement” ), the implication is that both should be treated the same. At least for purposes of the Property Tax Code, the caverns here could be categorized as improvements.

Finally, we disagree with the proposition that cases asserting double taxation should be determined by presumption rather than proof. In an appeal from an appraisal board determination, “[t]he district court shall try all issues of fact and law raised by the pleadings in the manner applicable to civil suits generally.” While the appraisal district “has the burden of establishing the value of the property by a preponderance of the evidence,” nothing in the trial of civil suits generally suggests that we should ignore evidence about what property was or was not included.

* * *

Unquestionably, a huge storage facility constructed aboveground to hold millions of barrels of hydrocarbons would be taxable as an “improvement.” We find no logical reason to assess such facilities differently when it is more practical to build them below.

Accordingly, we reverse the court of appeals’ judgment that the caverns here could not be separately appraised. We remand to the court of appeals to consider Coastal’s remaining issues.

      . See 46 S.W.3d 880, 885-86 (Tex.2001).

      . Testimony at trial indicated that Texas has more than 500 of such facilities.

      . Tex. Tax Code § 41.413(b); see also id. § 42.015(a) ("A person leasing property who is contractually obligated to reimburse the property owner for taxes imposed on the property is entitled to appeal an order of the appraisal review board_”).

      . Id. § 41.413(b).

      . Tex. Tax Code § 42.09 (providing that tax protest procedures are exclusive means of asserting tax claims except defenses of nonown-ership or that property is in a different jurisdiction); Robstown Indep. Sch. Dist. v. Anderson, 706 S.W.2d 952, 953 (Tex.1986) (per curiam) (holding that failure to file protest to assessments after Tax Code’s January 1, 1982 effective date waives complaint). While we held twenty years ago that compliance with the statutory requirements for appeal from an appraisal review is jurisdictional, Appraisal Review Bd. v. Int'l Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex.1986) (per curiam), we have yet to address whether that holding survives Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex.2000) (holding that compliance with statutory requirements for asserting wrongful death claim was case-determinative but not jurisdictional question).

      . Tex. Tax Code § 41.45(a) ("If more than one protest is filed relating to the same property, the appraisal review board shall schedule a single hearing on all timely filed protests relating to the property.”); see also id. § 41.01(a)(6) (providing that appraisal review board shall "make any other determination that this title specifically authorizes or requires”).

      . Id. § 41.01(b) (providing that board may not review or reject agreements between property owners and chief appraiser pending an appeal to the board).

      . Id. § 41.47(a) ("The appraisal review board hearing a protest shall determine the protest and make its decision by written order.").

      . Id. § 42.23(a) ("Review is by trial de novo. The district court shall try all issues of fact and law raised by the pleadings in the manner applicable to civil suits generally.”).

      . The Property Tax Code provides that "[h]earing procedures to the greatest extent practicable shall be informal.” Id. § 41.66(b). While witnesses must be sworn, id. § 41.67(a), they may appear by affidavit. Id. § 41.45(b).

      . See Dubai, 12 S.W.3d at 76.

      . Tex. Tax Code § 1.04(2).

      . Id. § 25.02(a).

      . Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 292, 294-95 (1923).

      . State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847, 849 (1959).

      . 827 S.W.2d 811, 814, 817 (Tex.1991).

      . 827 S.W.2d at 817 n. 8, 822-23.

      . Id. at 817.

      . Id. at 815-16 (citations omitted). See also Tex. Tax Code § 23.17 (“An interest in a mineral that may be removed by surface mining or quarrying from a deposit and that is not being produced is appraised at the price for which the interest would sell while the mineral is in place and not being produced.”).

      .827 S.W.2d at 825.

      . See Tex. Tax Code § 23.01 ("The same or similar appraisal methods and techniques shall be used in appraising the same or similar kinds of property. However, each property shall be appraised based upon the individual characteristics that affect the property's market value.”).

      . Tex. Const, art. VIII, § 1(a).

      . Compare Tex. Tax Code § 1.04(2), with id. § 25.02(a).

      . As a fee-simple interest is clearly "an estate or interest ... in property,” id. § 1.04(2)(F), this last category necessarily overlaps to some degree with all the former ones.

      . 827 S.W.2d at 816.

        .Id. at 813.

      . Tex. Const, art. VIII, § 1(a) ("Taxation shall be equal and uniform.”); id. § 1(b) ("All real property and tangible personal property in this State, unless exempt as required or permitted by this Constitution ... shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”).

        . Tex. Tax Code § 25.03(a).

      . Electra Indep. Sch. Dist. v. W.T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645, 650 (1943).

      . Tex. Tax Code § 1.04(3)(A).

      . See Black’s Law Dictionary 1464 (8th ed.2004).

      . Amicus Chambers Comity Appraisal District discloses in its brief that it taxes man-made storage caverns as "improvements” but does not tax natural ones. As only the former are before us, we express no opinion as to the latter.

      . Harris County Appraisal Dist. v. Coastal Liquids Transp., L.P., 7 S.W.3d 183, 190 (Tex.App.-Houston [1st Dist.] 1999), rev’d, 46 S.W.3d 880 (Tex.2001); see Tex. Nat. Res. Code § 211.001(4) (" 'Salt dome storage facility’ includes any new or existing salt formation or bedded salt formation storage cavern and any equipment, facility, or building used or intended for use in the storage of a hazardous liquid in the salt formation cavern.”).

      . See Coastal Liquids Transp., 7 S.W.3d at 190 n. 8.

      . Tex. Tax Code § 42.23(a).

      . Id. § 41.43(a).

      . See, e.g., El Paso Cent. Appraisal Dist. v. Montrose Partners, 754 S.W.2d 797, 799 (Tex.App.-El Paso 1988, writ denied) (holding that appraisal of improvements that mistakenly in-eluded swimming pool but excluded building was not merely incorrect valuation, and could be amended).

      .The court of appeals did not reach Coastal’s complaints regarding the factual and legal sufficiency of the evidence to support the trial court’s valuation, or its claim for attorney’s fees.